[Deathpenalty] death penalty news----TEXAS, GA., S. DAK.
rhalperi at mail.smu.edu
Sun Jul 15 11:47:43 CDT 2007
Death penalty broke, but Texas Legislature won't fix it----Only solution
now is to abolish flawed system
Another legislative session in Texas has come and gone without any
significant improvements to the seriously flawed death penalty system. In
fact, a bill to expand the death penalty was passed in the last session
despite objections of some prosecutors. This is going in the wrong
How do we know the death penalty system is flawed?
For one thing, several people who were sent to death row were later
exonerated and released. Included in those numbers were people like
Randall Dale Adams and Clarence Brandley. These were the "lucky ones."
Secondly, in the past year, newspaper investigations have revealed that
Texas executed three people who were probably innocent: Ruben Cantu,
Cameron Todd Willingham and Carlos DeLuna.
Thirdly, police and prosecutorial misconduct have been documented in
several cases. The reality is that we have several people on death row now
who should not be there some are innocent and some should have received a
life sentence or life without parole.
Several cases of innocent people being sent to prison have been discovered
in Dallas as a result of DNA testing. With the numerous problems reported
with the Houston crime laboratory, should we expect different results in
Houston or other cities?
Problems with the Texas death penalty system were clearly pointed out in a
2005 report titled "Minimizing Risk: A Blueprint for Death Penalty Reform
in Texas." This report by the Texas Defender Service recommended many
improvements to the criminal justice system. However, few, if any, have
been acted on by the Texas Legislature.
In the 2007 legislative session, several bills were introduced to improve
the criminal justice system, including bills to establish:
A Study Commission to identify where improvements to the death penalty
system could be made.
An Innocence Commission to examine cases where innocent people have been
sent to prison so that we can avoid doing that in the future;
An Office of Capital Writs to improve legal defense during appeals.
These improvements should be "no-brainers" for anyone truly interested in
justice. However, legislators who want the flawed system to continue
blocked these initiatives as they have in past legislative sessions. They
want executions to continue even if we execute the wrong person.
This mentality is beyond comprehension.
Since our legislators have refused to improve the system, the only answer
left to ensure that we don't execute innocent people is to abolish the
death penalty altogether. We now have life without parole as an
alternative punishment, so society can be protected without the death
If we abolish the death penalty, we would also save the state a lot of
money that could be used to improve victims' services, community policing
and other crime-prevention programs.
(source: Opinion, Dave Atwood is president of the Houston Peace and
Justice Center; Houston Chronicle)
3 arrested in '04 McKinney killings----2 held in local jails, 1 in
Florida; families of 4 victims welcome news
Anytime a McKinney police phone number pops up on her Caller ID, Nancy
Self gets hopeful.
She's waiting for authorities to catch her teenage son's killers.
Early Saturday morning, just after midnight, Mrs. Self received a call
that made her hopes soar: 3 men were arrested in connection with the fatal
shootings of Matthew Self and three others in 2004.
"Now I want justice done. That's what I want," Mrs. Self said Saturday.
"Whoever did this to my son, I want them to pay for what they did."
McKinney police believe they're on the right path with Friday night's
Eddie Ray Williams, 24, of McKinney remained in the Collin County Jail on
Saturday on 4 counts of capital murder and was being held on $6 million
Javier Cortez, 31, also a McKinney resident, was arrested on a federal
firearms charge and for providing a false statement on a Bureau of
Alcohol, Tobacco, Firearms and Explosives application to obtain a firearm.
He was being held in the Grayson County Jail, and no bail had been set.
Mr. Cortez's younger brother, Raul Cortez, 26, was arrested on one count
of capital murder Friday night in Orlando, Fla., by a U.S. Marshals
Service Task Force. McKinney investigators were making plans Saturday to
fly there to question him. An extradition hearing is scheduled for
The 3 are suspected of the March 12, 2004, slayings of Rosa Barbosa, 46;
her nephew, Mark Barbosa, 25; and his friends, Austin York, 18; and Mr.
Self, 17, inside the Barbosa home in the 100 block of Truett Street.
Robert Barbosa discovered his brother, aunt and two friends in the Truett
Street house the night of the shootings. He cradled Matthew's head in his
hands and called for help from the front bedroom of the house. Mark
Barbosa, Rosa Barbosa and Austin York were already dead from gunshot
wounds. Mr. Self was pronounced dead at a Dallas hospital the next day.
McKinney police are not talking publicly about the connections between the
Cortez brothers and Mr. Williams, or what led to their arrests. They will
spend the weekend interrogating the men and will answer questions Monday,
McKinney police Capt. Randy Roland said.
"We, along with the district attorney's office, are being extremely
cautious in our approach to make sure that all of our i's are dotted and
t's crossed," Capt. Roland said.
McKinney police and the victims' families have reason to proceed
carefully. They've been here before.
About a month after the quadruple slayings rocked this quiet suburban
community, police arrested 3 men.
But authorities released them 89 days later, one day before a state
deadline that requires the case to go before a grand jury or the charges
be dropped. Police said they did not have enough evidence to pursue their
For Laurie Wilson, Mr. York's mother, the fact that the previous arrest
did not pan out makes her even more confident that this time McKinney
police have it right.
"I feel like the first go-around they learned a lot, and I have every
confidence in the McKinney Police Department," Mrs. Wilson said by phone
Saturday from her North Carolina home. "They don't want another black eye,
either from the human perspective or as law enforcement officials."
Police began looking at the initial suspects James Jones, Jecory May and
Calvin Walker when Mr. Jones, a police drug and weapons informant who had
been arrested on a kidnapping charge, confessed to killing Ms. Barbosa and
implicated the other 2 men. But he later recanted his statement. He
pleaded guilty to kidnapping in April 2005 and was given a 10-year
Mr. May was convicted of federal drug charges in January 2005 and remains
in the Collin County Jail. Mr. Walker was the only one of the three
released from jail. He could not be reached Saturday for comment. But he
has said that he struggles to find work because of the charges and was
disappointed that McKinney police never apologized for wrongfully
Capt. Roland said Saturday that police have "always felt luck was on the
side of the bad guys in this case," adding that he was "supremely more
confident" in these arrests than those in 2004. He alluded to a major
break in the case that led to Friday's arrests, but refused to elaborate.
One motive that police continue to believe was that Ms. Barbosa was
targeted because she worked at a check-cashing business. Mr. Barbosa,
Matthew and Austin likely interrupted a robbery at the McKinney house,
police say. The same night as the shooting, the alarm at the business
sounded, police said. But nothing was amiss when officials arrived.
Hector Cortez, the brothers' uncle who lives in northern Illinois, said he
hasn't spoken with his nephews in a few years. He remembers they would get
into trouble as youngsters but said he was still surprised by their
"They moved to Texas about 10 years ago to get away from gangs," Hector
Cortez said. "My brother sold the house and moved to Texas. They were out
Records show that Javier Cortez received one year probation for a 2001
driving while intoxicated charge in Collin County. No criminal charges
were found for Raul Cortez.
Mr. Williams was arrested in Collin County for possession of marijuana and
given 1 year probation in April 2004 a month after the slayings. He
violated probation later that year and was sentenced to 70 days in jail.
For Robert Barbosa, Mark's brother, the timing of the arrest was doubly
"It's my birthday today," he said Saturday. "Good things to hear. I knew
it'd take time."
Family members gathered at the Barbosa home Saturday morning, but
eventually left to escape the steady flow of visitors.
"I don't think it'll be a big relief until they're all found guilty," said
Robert Barbosa's wife, Sella.
In front of the house with peeling vanilla-colored paneling where the
slayings took place, the family erected a small memorial with 2 small,
black wrought-iron signs bearing the names Mark and Rosa in block letters.
Life has gone on for the Barbosas, but several said not a day goes by when
they don't think of their slain relatives.
"Both of us [Sella Barbosa and I] have gotten married and gotten
pregnant," said Sina Brown, Rosa Barbosa's niece, "and not having them
around to share has been the hardest part."
Ms. Brown said the victims' families are grateful the case was not shelved
"The police assured the families they'd been working on it, and today is
proof," she said.
But even the capture of 3 new suspects won't erase the pain of the past 3
"Regardless of who they arrest, unfortunately it doesn't change the net
result," Mrs. Wilson said. "My son is still gone. But there's a community
to protect, and the wheels of justice are still going to roll."
(source: Dallas Morning News)
Unassailable Justice----Cantu case underscores need for outside review
Texas, the leading death-penalty state, too often fails to ensure airtight
Responding to fears that a San Antonio man was executed for a murder he
didn't commit, the Bexar County district attorney's office has finished a
re-investigation and concluded that Ruben Cantu was guilty and properly
paid with his life in 1993.
Many critics us included feel shortchanged by DA Susan Reed's review.
For starters, Ms. Reed was the judge who set an execution date for Mr.
Cantu. When a key witness recanted last year, the appearance of vested
interest glared like neon and should have prompted her to call for outside
Instead, her office has produced what skeptics may always see as a mere
obligatory answer to charges that officials concocted a case against Mr.
Cantu. An outside analysis, even if it reached the same conclusion, would
at least have the aura of legitimacy.
The sorry truth is that Texas has no established apparatus to consult when
justice is strongly questioned. Lawmakers could have fixed this deficiency
by approving creation of an innocence commission to study troubling cases
and recommend fixes in the justice system. The proposal passed the state
Senate this spring but died in the House, along with good sense.
An innocence commission could, for example, draw lessons from the 13
felony convictions in Dallas County that were overturned through DNA
tests. A commission also could hear from former Bexar County DA Sam
Millsap, who says he would not try the Cantu case as a capital crime if he
could do it all over again.
With the lessons of the Cantu case lingering, another South Texas
execution screams for scrutiny: the 1989 death of Carlos De Luna of Corpus
Christi. Officials produced no physical evidence and no eyewitness at
trial, according to a Chicago Tribune series.
Mr. De Luna went to his death even though another potential suspect had
been bragging about the killing.
The facts of the De Luna case need a full airing this time by an outside
(source: Editorial, Dallas Morning News)
As Execution Nears, Last Push From Inmate's Supporters
It was a Friday night in a rough part of town when Officer Mark A.
MacPhail of the Savannah Police Department showed up to work his 2nd job,
moonlighting as a security officer for the Greyhound bus station on
Oglethorpe Avenue in Savannah, an area where transients were known to
congregate and to drink through the early morning hours.
A few hours later, early on a Saturday morning in August 1989, Officer
MacPhail was shot and killed as he tried to break up a fight over a can of
beer. He never drew his weapon.
The man convicted of shooting the officer that night in 1989, Troy A.
Davis, is likely to be the focus of an unusual clemency hearing before the
Georgia Board of Pardons and Paroles. On Monday, the board is to hear the
case of Mr. Davis, 38, who was sentenced to death in 1991 for the killing.
Though prosecutors have considered the case solved for nearly 2 decades, a
chorus of eyewitnesses say the police arrested the wrong man. Now, on the
eve of execution, scheduled for Tuesday, they have joined his family and
his lawyers in an effort to get the courts to hear new evidence they say
proves he is innocent.
With no physical evidence the murder weapon was never found prosecutors
relied heavily on the testimony of 9 eyewitnesses who took the stand
against Mr. Davis.
But since his trial, 7 of the 9 have recanted or changed their testimony,
saying they were harassed and pressed by investigators to lie under oath.
Other witnesses have come forward identifying a different man as the
But because of a 1996 federal law intended to streamline the legal process
in death penalty cases, courts have ruled it is too late in the appeals
process to introduce new evidence and, so far, have refused to hear it.
Legal experts, including William S. Sessions, a retired federal judge, a
former director of the Federal Bureau of Investigation and a
self-described supporter of the death penalty, have sounded the alarm over
Mr. Davis's case. They say it underscores the many ways the death penalty
is unevenly and wrongly applied, particularly in the South, the region
with the most death penalty cases.
"It would be intolerable to execute an innocent man," Mr. Sessions wrote
in an op-ed article for The Atlanta Journal-Constitution. "It would be
equally intolerable to execute a man without his claims of innocence ever
being considered by the courts or by the executive."
Representative John Lewis, Democrat of Georgia, is expected to testify at
the clemency hearing Monday.
In addition to the hearing, lawyers for Mr. Davis asked for a new trial,
but on Friday, Judge Penny Haas Freesemann of Chatham County Superior
Court in Savannah denied the bid. Mr. Davis's lawyers told The Associated
Press that they would appeal to the state Supreme Court.
Mr. Davis's older sister, Martina N. Correia, has watched her brothers
battle against a legal system she believes is biased against poor black
Georgia is 1 of only 2 states that do not guarantee defense counsel for
condemned prisoners after they have exhausted their direct appeals.
"Our father worked as a sheriff's deputy in Savannah," said Ms. Correia,
40. "My fianc is a police officer. We trusted that if youre innocent, the
system would work."
"When they finally got people to tell the truth, they said it was too late
to introduce it," she said. "Some of these people, I dont know how they
On June 10, Ms. Correia and her mother led representatives from Amnesty
International to the offices of the Georgia Board of Pardons and Paroles
and delivered thousands of letters written in support of Mr. Davis, asking
It is rare for the board to commute a death sentence but not
unprecedented. Since 1973, the board has granted 50 clemency hearings and
commuted 8 sentences.
The last was granted more than three years ago, however, and even Mr.
Davis's lawyers acknowledge that despite the outpouring of support for
their client, undoing 15 years of what previous defenders have admitted
was poor legal work on behalf of their client would be a long shot.
"But we believe the truth can prevail," said Jason Ewart, a lawyer from
Washington who is representing Mr. Davis.
Some of the facts of the night Officer MacPhail was killed are not in
Early on the morning of Aug. 19, 1989, a man described as a neighborhood
thug, Sylvester Coles, began harassing a homeless man named Larry Young
for the beer he was carrying in a paper sack.
A crowd of bystanders, some of whom had spilled out of nearby Charlie
Browns Pool Hall after hearing the ruckus, followed the fight as it
progressed up Oglethorpe Avenue toward the bus station.
Several witnesses later testified that they had heard Mr. Coles threaten
Mr. Young with a gun and then saw him pull a pistol out of his pants and
then use it to beat Mr. Young on the head.
Fearing for his life, Mr. Young yelled for someone to call the police, and
Officer MacPhail responded. He was shot twice and died.
Mr. Davis said he had been one of the bystanders who came out of the pool
hall and watched as Mr. Coles tormented Mr. Young. He said that he had run
when he heard Mr. Coles threaten to shoot Mr. Young and that he had never
Mr. Davis surrendered to the Chatham County Sheriffs Department several
days later when he learned the police were looking for him, said his
sister Ms. Correia. The family says it trusted that what seemed to be a
case of mistaken identity would quickly be sorted out.
With no physical evidence to connect Mr. Davis to the shooting, the
prosecutors relied heavily on the testimony of 9 witnesses, including Mr.
Coles, who identified Mr. Davis as the gunman the day after it happened,
with a lawyer by his side.
Mr. Coles could not be found for comment this week.
But in an affidavit filed later, one of the witnesses, Antoine Williams,
recalled his testimony that Mr. Davis was responsible for the crime.
"Even when I said that, Mr. Williams said, "I was totally unsure whether
he was the person who shot the officer. I felt pressured to point at him
because he was the one who was sitting in the courtroom."
Ms. Correia said that as the day of the execution drew near, some of the
people who testified against her brother were feeling remorse.
"These witnesses, they are calling my brother and asking him to forgive
them," Ms. Correia said. "They thought if they told the truth and signed a
piece of paper saying they lied before thats all it would take. He would
go free. They can't believe he might die because they lied."
(source: New York Times)
Georgia man convicted of killing officer in 1989 nears execution
Troy Davis argues he is innocent, the victim of mistaken identity and
coercive investigative tactics that got him convicted of killing a
Savannah police officer nearly 18 years ago. The state says he received a
fair trial and points out that he has had plenty of appeals, all of which
On Monday, in what could be Davis' last, best hope at avoiding execution,
his attorneys will urge the state Board of Pardons and Paroles to commute
his sentence to life in prison. Prosecutors will tell the board Davis
should be given a lethal injection Tuesday as scheduled.
Davis' hearing promises to be anything but typical given the parade of big
names who have written letters of support on his behalf and because
witnesses who once testified he was guilty have recanted.
The board has vowed to listen carefully to both sides and base its
decision on the facts. It says it will not be swayed by public pressure.
A jury convicted Davis, 38, for the Aug. 19, 1989, murder of Officer Mark
MacPhail, who was shot twice after he rushed to help a homeless man who
had been assaulted.
The shooting took place in a Burger King parking lot next to the bus
station where MacPhail worked off-duty as a security guard.
Davis' lawyers say seven of 9 witnesses who testified at his trial that
they either saw Davis shoot the officer, saw him assault the homeless man
before the shooting or heard Davis later confess to the slaying have since
recanted or contradicted their testimony.
Other affidavits from 3 people who did not testify at Davis' trial say
another man, Sylvester Coles, confessed to killing the officer after Davis
was convicted. After the shooting, Coles identified Davis as the killer.
Prosecutors argue that most of the witness affidavits, signed between 1996
and 2003, were included in Davis' previous appeals and should not be
considered new evidence.
Davis' lawyers say they have been hindered over the years at getting
courts to consider their new evidence because of restraints in the law.
In particular, they have complained about the Anti-terrorism and Effective
Death Penalty Act, a 1996 law that limits the circumstances under which
federal judges may grant habeas corpus petitions in state court cases.
In order for a federal judge to step in, says the law, the state court
decision must be "contrary to" or an "unreasonable application" of clearly
established federal law as determined by the U.S. Supreme Court, which
refused last month to hear Davis' case.
Congress passed the law to limit the seemingly endless legal wrangling
that typically precedes executions.
In Davis' case, his appeals have failed largely on procedural grounds.
However, the 11th U.S. Circuit Court of Appeals did review affidavits from
witnesses who said they were coerced into making statements against Davis.
The court still denied Davis relief, saying in part in its 2006 decision
that the claims in the affidavits were insufficient "either because the
assertions contained therein do not rise to the level of coercive police
conduct, or because there is no reasonable likelihood that the false
testimony could have affected the jury's judgment."
On Friday, a Chatham County judge denied a bid to halt Davis' scheduled
execution, saying that having witnesses who claim to have given false
testimony "fails to meet the newly discovered evidence standard under
well-settled Georgia law." The judge also rejected the affidavits by
people claiming they heard Coles confess to the murder, saying they
"contain inadmissible hearsay."
The Associated Press has been unable to locate Coles for comment, and
another Davis attorney, Jason Ewart, declined to say if he knows Coles'
While his attorneys planned to appeal the decision to the state Supreme
Court, Davis' best chance at saving his life appears to be the parole
board, which, besides commuting the death sentence, could grant a stay.
U.S. Rep. John Lewis, an Atlanta Democrat and civil rights icon, plans to
testify on Davis' behalf out of concern that the state is planning to
execute an innocent man. Some 4,000 letters have been presented to the
board on Davis' behalf, including some from religious leaders,
entertainers and civil and human rights leaders.
But will the witnesses whose recanted testimony defense lawyers have based
their arguments on speak on Davis' behalf at the hearing? A list of
planned speakers for Davis provided to the board on Friday contained the
names of mostly friends and family. Notably absent were the names of
witnesses to the murder.
Ewart said the defense team would be working through the weekend to try to
get some of the witnesses to attend the hearing and speak out for Davis,
but as of Friday he was unsure how successful the lawyers would be.
If none of the witnesses show, that could spell trouble for Davis' cause.
A letter to the defense team from the parole board's legal director on
Friday said the panel "expects to hear testimony from the recanting
witnesses who appeared" at a recent rally near the board's office that was
held by Davis supporters. "If they were available last Tuesday, they
should be available on Monday," the letter said.
(source: Associated Press)
3 remaining men on South Dakota's death row continue appeals
Elijah Page was executed Wednesday, a little more than 7 years after he
committed a murder, but Donald Moeller remains on death row continuing his
appeals 17 years after he killed a 9-year-old Sioux Falls girl.
The 2 other convicted murderers facing the death penalty in South Dakota
also are pursuing appeals in the state and federal court systems.
Page's death row stay was shortened when he ended his appeals last year
and asked to be executed for the March 2000 torture murder of Chester
Allan Poage, 19, near Spearfish. Page became the 1st person executed in
South Dakota in 6 decades.
Moeller's lengthy time on death row is mostly due to the fact that his 1st
conviction was overturned by the South Dakota Supreme Court because some
evidence was improperly admitted in his 1st trial. Moeller, 54, then was
tried a 2nd time and sentenced to death again for 1st-degree murder and
first-degree rape in the 1990 killing of Becky O'Connell.
Briley Piper, 27, of Anchorage, Alaska, also is appealing his death
sentence after pleading guilty to killing Poage, the same crime for which
Page was executed.
The remaining inmate facing the death penalty, Charles Russell Rhines, 51,
has appeals tied up in both state and federal courts in his conviction for
killing 22-year-old Donnivan Schaeffer during the 1992 burglary of the
Rapid City doughnut shop where Schaeffer worked.
Page's execution had at least some impact on other death-row inmates'
After Moeller was convicted in his second trial, the South Dakota Supreme
Court denied his direct appeal and secondary appeal, called a habeas
corpus proceeding. He is now in federal court pursuing a habeas corpus
action, a legal proceeding that argues constitutional violations have led
to a convict's illegal incarceration.
Moeller's attorney, Mark Marshall of Sioux Falls, wants to amend Moeller's
federal court appeal to include arguments based on a change in state law
prompted by Page's case.
Page was scheduled to be executed in August 2006, but Gov. Mike Rounds
postponed it because the state law mandating the use of two drugs
conflicted with the Department of Corrections' plan to use the three-drug
mix that is standard in states that use lethal injection for executions.
The Legislature this year changed the law, removing the reference to the 2
drugs and instead giving the department authority to determine which drugs
are used. The new law took effect July 1 and was used in Page's execution.
Marshall wants to amend Moeller's federal claim by adding arguments that
the law in effect when he was convicted calls for unconstitutionally cruel
and unusual punishment because it provided for use of only two drugs.
Those 2 chemicals could cause Moeller to experience suffocation and
excruciating pain during an execution, so his sentence should be changed
to life in prison, Marshall argued.
The new law gives death-row inmates a choice of using the two-drug mix in
effect at the time they were convicted or the standard mix now set in
prison policy. Moeller's appeal argues the new law amounts to the
unconstitutional passage of a law that seeks to apply to him
Moeller's appeal also argues that his convictions should be overturned
because mistakes dealing with procedures and admission of evidence were
made during his trial.
Proceedings in Rhines' appeal were put on hold until after Page's
execution because lawyers wanted to see whether the execution raised any
issues that might be relevant to Piper's case.
Rhines' habeas corpus appeal has been suspended in federal court until all
his appeal issues are resolved in state court.
The appeal includes legal claims dealing with such things as questionable
trial witnesses, faulty jury selection, ineffective assistance by his
lawyer and the alleged unconstitutional application of the death penalty
in South Dakota.
Rhines lost his initial appeals to the state Supreme Court.
Piper, along with Page, pleaded guilty to the beating and stabbing death
of Poage with the expectation that Circuit Judge Warren Johnson would
sentence them to life in prison without parole. Instead, the judge
sentenced both to death.
Piper has lost his initial appeal to the South Dakota Supreme Court but
now is pursuing a 2nd appeal that argues he should have been given the
right to have a jury sentence him. He also contends his trial lawyers
provided inadequate assistance when they advised him to plead guilty.
Lawyers expect arguments in Piper's case will be completed sometime this
fall in circuit court, which would mean the case would go to the state
Supreme Court sometime next year.
When Page wrote a letter asking to end his appeals and be executed, the
letter also sought to help Piper. Page said he threatened to kill Piper if
Piper didn't go along with the killing.
(source: Associated Press)
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