[Deathpenalty] death penalty news----USA, OHIO, IND.
rhalperi at mail.smu.edu
Mon Jan 22 04:03:21 UTC 2007
Manual to allow executions based on hearsay ---- Pentagon plan for
detainee trials could spark fresh bipartisan debate
The Pentagon has drafted a manual for upcoming detainee trials that would
allow suspected terrorists to be convicted on hearsay evidence and coerced
testimony and imprisoned or put to death.
According to a copy of the manual obtained by The Associated Press, a
terror suspect's defense lawyer cannot reveal classified evidence in the
person's defense until the government has a chance to review it.
The manual, sent to Capitol Hill on Thursday and scheduled to be released
later by the Pentagon, is intended to track a law passed last fall by
Congress restoring President Bush's plans to have special military
commissions try terror-war prisoners. Those commissions had been struck
down earlier in the year by the Supreme Court.
The Pentagon manual could spark a fresh confrontation between the Bush
administration and Congress now led by Democrats over the treatment of
the nations terrorism suspects.
Last September, Congress then led by Republicans sent Bush a bill
granting wide latitude in interrogating and detaining captured enemy
combatants. The legislation also prohibited some of the worst abuses of
detainees like mutilation and rape, but granted the president leeway to
decide which other interrogation techniques are permissible.
Long road to bill's passage
Passage of the bill, which was backed by the White House, followed more
than three months of debate that included angry rebukes by Democrats of
the administration's interrogation policies, and a short-lived rebellion
by some Republican senators.
The Detainee Treatment Act, separate legislation championed in 2005 by
Sen. John McCain, R-Ariz., prohibited the use of cruel, inhuman or
degrading treatment of military and CIA prisoners. It was approved
overwhelmingly by Congress despite a veto threat by Bush, who eventually
signed it into law.
The Pentagon manual is aimed at ensuring that enemy combatants the Bush
administration's term for many of the terrorism suspects captured on the
battlefield "are prosecuted before regularly constituted courts affording
all the judicial guarantees which are recognized by civilized people,"
according to the document.
As required by law, the manual prohibits statements obtained by torture
and "cruel, inhuman or degrading treatment" as prohibited by the
However, the law does allow statements obtained through coercive
interrogation techniques if obtained before Dec. 30, 2005, and deemed
reliable by a judge.
Nearly 400 detainees suspected of links to al-Qaida and the Taliban are
still being held at the U.S. military prison at Guantanamo Bay, Cuba,
while about 380 others have been transferred or released. The Defense
Department is currently planning trials for at least 10 suspects.
Geneva Conventions violated?
Democrats have said they would like to revisit detainee legislation and
address concerns that the bill gives the president too much latitude
interpreting standards set by the Geneva Conventions on prisoner treatment
and may deny detainees legal rights.
Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee,
said he planned to scrutinize the manual to ensure that it does not "run
afoul" of the Constitution.
"I have not yet seen evidence that the process by which these rules were
built or their substance addresses all the questions left open by the
legislation. This committee will fulfill its oversight responsibility to
make sure this is the case," Skelton said in a written statement.
Sen. Arlen Specter, R-Pa., and some Democrats have said the legislation
will be shot down by the courts as unconstitutional because it bars
detainees from protesting their detentions. Under the law, only
individuals selected for military trial are given access to a lawyer and
judge; other military detainees can be held until hostilities cease.
(source: Associated Press)
3 Ohio executions on hold----Strickland doesn't want to make hasty
Pressured to make a quick and ill-prepared life-or-death decision on an
inmate set to be executed in 3 days, Gov. Ted Strickland instead put
Ohio's death penalty on hold.
His decision, issued Friday but hinted at days ago, means the 3 executions
scheduled for this month will be pushed back at least a few months.
The executions include one Tuesday and another on Feb. 13 for Lorain
County wife-killer James Filiaggi.
The governor offered the reprieves to give himself more time to consider
clemency requests. Kenneth Biros, scheduled for execution on Tuesday, has
a new execution date of March 20. Filiaggi's was moved to April 24. And
Christopher Newton's date changed from Feb. 27 to May 24.
Strickland took office 12 days ago. He said he just has not had enough
time to consider Biros' request for his death sentence to be commuted to
life in prison. The governor figures he will need more time for Filiaggi
and Newton, too.
Compounding the issue for Strickland -- aside from the fact that he is
struggling morally with the death penalty -- is a pending lawsuit in which
7 death-row inmates are arguing the lethal injection process violates
their rights against cruel and unusual punishment.
"I find myself confronted with two separate sets of circumstances in a
compressed time period," Strickland said earlier this week. "I certainly
do not feel very comfortable at this point."
Strickland said he considered a range of options, from allowing the
executions to proceed as planned to calling for a moratorium.
The Criminal Justice Legal Foundation, a Sacramento, Calif.-based group
that supports capital punishment, said that as long as the governor
doesn't call for more delays, there appears to be no harm in the decision.
"A new governor giving himself more time to consider clemency is fine, as
long as it is not for an exceedingly long time," said Kent Scheidegger,
the foundation's legal director. "But I hope this is not a prelude to
Biros' attorney, Tim Sweeney of Cleveland, said all his client wanted was
a fair evaluation.
"He is certainly appreciative of the governor's decision and hopes that
after he freely reviews the case, he will offer clemency," Sweeney said.
The Ohio Public Defender's Office also applauded the decision.
"This has the effect of guaranteeing that no one in Ohio will face a last-
minute execution in Ohio," said Greg Meyers, of the public defender's
office. "It teaches us that we have a governor who is taking very
seriously the question of clemency."
Meyers is arguing the lethal injection case against the state.
Attorney General Marc Dann, who is fighting to uphold the death penalty,
issued a statement saying he respected the governor's decision and that it
will not affect the state's legal strategy.
Dann, coincidentally, on Thursday said he still wants a review of the
death penalty to test his concerns that the penalty is not applied
proportionally across racial, socio-economic and age boundaries. He must
juxtapose that view with his duty to seek timely executions.
"My job is to enforce the law," he said. "But the bigger picture is how do
we make sure the law holds up evenly for everybody."
Similar lethal-injection lawsuits are pending in about a dozen other
states, including 4 where judges have halted all executions: Missouri,
California, Maryland and South Dakota.
A New Jersey special commission recommended that the state's legislature
and governor abolish the death penalty. And last month, Florida's governor
suspended executions, at least until March, when he is to receive a
lethal-injection study he ordered after a botched execution there.
Ohio's lethal-injection process was questioned after last May's execution
of Joseph Clark when the death squad could not find a vein in his arm to
feed the drugs through. Clark cried out, "This isn't working." The state
revised its procedures after that incident.
In Ohio, conflicting decisions between the district and appeals courts
have meant some inmates involved in the lethal-injection lawsuit, like
Lake County's Jeffrey Lundgren, have died before getting their day in
court. Others, meanwhile, have been allowed to live.
Strickland doesn't want such blood on his hands and signaled that he would
ideally like to wait until the court action is resolved before allowing
any more executions.
"I think it would be unfortunate for someone to be executed one day and
then the courts decide another day that the method of execution was
unconstitutional," he said this week.
Biros is a plaintiff in the lethal-injection lawsuit - known as the Cooey
case, named after death-row inmate Richard Cooey, who originally brought
The 6th U.S. Circuit Court of Appeals in Cincinnati is considering whether
that suit was legally filed and can proceed forward. If it does, arguments
could take place this spring.
Before Strickland's directive, a district court judge had stopped Biros'
execution, and an appeals court is still considering an appeal filed last
week by Attorney General Dann. Strickland had hoped the appeals court
would make a ruling so that he might not have to.
If the appeals court had upheld the stay, Strickland could have remained
silent at least for a few more weeks until Filiaggi was due up. If it had
reversed the lower court, the governor would have been forced to make a
decision on Biros by Tuesday.
Filiaggi has not requested to join the lethal-injection lawsuit and,
barring clemency, could become the 1st inmate executed under Strickland.
(source: Plain Dealer)
Indiana justices say definition of insanity shaky ---- Texas death-penalty
case may clear it up
The legal definition of insanity as it applies to death row inmates --
which lies at the heart of the debate over whether to execute convicted
murderer Norman Timberlake -- is a shaky one.
That, at least, is the opinion of two Indiana Supreme Court justices who
dissented twice over the past 2 years from majority opinions in favor of
executing mentally ill inmates.
This week, however, they prevailed in another decision.
The 2 -- Theodore Boehm and Robert Rucker -- joined with Justice Brent
Dickson in deciding Wednesday to halt Timberlake's execution, which had
been scheduled for yesterday.
The ruling came after the U.S. Supreme Court decided this month to take
another look at the definition of insanity as it pertains to those
condemned to die.
The U.S. high court agreed to consider a Texas case, in which this
question has been posed:
"Does the Eighth Amendment (to the U.S. Constitution, prohibiting cruel
and unusual punishment) permit the execution of a death row inmate who has
a factual awareness of the reason for his execution but who, because of a
severe mental illness does not appreciate that his execution is intended
to seek retribution for his crime?"
Timberlake, of New Albany, shot Indiana State Trooper Michael Greene along
Interstate 65 near Indianapolis in 1993.
The 5-member state Supreme Court acknowledged Timberlake's severe mental
illness in its December order to proceed with his death sentence.
He "believes that he is the subject of torture by a computer-driven
machine operated by prison officials 24 hours a day, seven days a week,"
according to the court-appointed psychiatrist.
But Timberlake also retains the "capacity to understand that he is about
to be executed and why," the psychiatrist said.
Three Indiana justices, in an opinion written by Chief Justice Randall
Shepard, said that was enough to satisfy the U.S. Supreme Court's
so-called "Ford standard" of sanity and clear the way for an execution.
But Boehm wrote, in a dissent joined by Rucker, "I am not confident that
the Ford standard will ultimately prove to be the test for eligibility to
be executed consistent with the Eighth Amendment."
Boehm pointed out, as he did more than a year earlier in the case of
mentally ill death row inmate Arthur Baird II, that "the Ford formulation
has never been squarely adopted by the U.S. Supreme Court, and subsequent
decisions of that court have cast some doubt on it."
Rucker and Boehm were outvoted in the Baird case as well, but Gov. Mitch
Daniels spared Baird by commuting his death sentence to one of life in
prison without the possibility of parole.
Boehm pointed out in both cases that former U.S. Supreme Court Justice
Lewis Powell originally expressed the Ford standard in a concurring
opinion in a 1986 case styled Ford v. Wainwright.
Powell's notion of sanity gained a legal following after Justice Sandra
Day O'Connor quoted it in the 1989 Penry decision that upheld the
constitutionality of executing retarded people.
In that same year the high court also approved the execution of juveniles
in the Kentucky case involving Kevin Stanford, who was 17 when he tortured
and killed Jefferson County gas station attendant Baerbel Poore in 1981.
"Both Penry and Stanford have now been overruled," Boehm wrote in the
Timberlake and Baird cases.
He noted both times that in reversing themselves the justices cited
"diminished capacities to understand and process information" as the basis
for the bar against executing retarded people.
"If a person who is not mentally retarded suffers from the same
'diminished capacities,' it seems equally offensive to the Eighth
Amendment to execute that person," Boehm wrote.
But the arguments of Boehm and Rucker held no sway against the majority on
the Indiana court until the U.S. Supreme Court decided on Jan. 5 to take
up the case of Scott Panetti, a mentally ill Texan condemned to death for
murdering his wife's parents in 1992.
Panetti, like Timberlake, understands that he is to be executed for the
stated reason that he committed murder, according to a court filing. But
also like Timberlake, he is said to have delusions that make him believe
the state has some other motive for killing him.
This week Dickson parted with Shepard and Justice Frank Sullivan to form a
majority with Boehm and Rucker in voting 3-2 to put off Timberlake's
execution until the Panetti case is decided.
"If there is doubt as to the applicable legal precedent, we should be
cautious in carrying out the death penalty," Dickson wrote in the latest
The Indiana justices "did exactly the right thing," Timberlake's attorney
Brent Westerfeld said.
Joseph Hoffmann, a death-penalty expert at the Indiana University law
school, said the decision was "both predictable under the circumstances,
and the right thing for the Indiana Supreme Court to do."
Both men said they were "proud" of the state court for stepping in now
with a stay, instead of waiting for the federal court actions to run out.
"The Indiana Supreme Court is taking responsibility for the case in a way
that a lot of state courts don't typically do," Hoffmann said.
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