[Deathpenalty] death penalty news----S.C., WASH., S. DAK., N.C., USA

[Rick Halperin]

July 24



SOUTH CAROLINA:

Troy Burkhart could get off death row at Friday hearing


Troy Alan Burkhart walked into the Seneca Police Department nearly 10
years ago splattered with blood after killing 3 people in an Anderson
County kudzu field.

Twice Burkhart has been convicted of the gruesome slayings of 2 Townville
brothers and an Anderson woman and sentenced to death.

On Friday, Burkhart is scheduled to be back in the Anderson County
Courthouse, and this time he could plead to 3 life sentences and get off
death row.

Tenth Circuit Solicitor Chrissy Adams said she would reserve comment until
after the hearing Friday.

The hearing scheduled to start at 10 a.m. before Judge J.C. "Buddy"
Nicholson will give Burkhart the opportunity to be sentenced to life in
prison without parole.

The South Carolina Supreme Court overturned Burkhart's 1st conviction,
saying Judge Donald Beatty did not instruct the jury that the prosecution
had to disprove self-defense beyond a reasonable doubt.

After Burkhart was convicted and sentenced a second time, the court ruled
the sentencing phase was flawed because prison conditions were part of the
sentencing, which should have dealt with just the crime.

In a brief phone conversation with the Anderson Independent-Mail from the
Anderson County Detention Center last week, Burkhart said there is someone
else who was in that kudzu patch on Nov. 17, 1997, with his uncle Ronnie
Burkhart.

"It's like pulling hair trying to get them to come forward," Troy Alan
Burkhart said. "He needs to be contacted. The past 4 days I've been trying
to get an officer here to come down and tell him everything."

Burkhart insists that a lot of things have not come to light in the last
10 years and that there was a lot of perjury during the two trials. Death
penalty cases include a sentencing phase after the defendant has been
convicted.

In the 2 trials, prosecutors described a weekend of drug use and partying
after Shane Walters, 27, and his brother Stacy, 21, helped Burkhart repair
the septic tank at Traditions nightclub on a Friday.

Burkhart and his wife, Michelle, operated the nightclub and catering
business on Coneross Creek Road and lived nearby in southern Oconee
County.

Stacy lived with his older brother on Woolbright Road in Townville, and
the 2 ran a business that moved and set up mobile homes.

Sonya Cann, 21, of Carole Avenue in Anderson never had met Burkhart until
5:30 a.m. Nov. 17, a Monday morning, when the three men showed up at her
house. to go four-wheeling and deer-spotting in Shane's extended-cab type
Dodge pickup truck. Testimony indicated Shane had known Ms. Cann from her
work as a waitress.

At some point, with all 4 in the truck on that chilly November morning,
Burkhart said the situation became a scene out of the movie "Deliverance"
and some one said, "Make him squeal like a pig."

Investigators could only piece together the horror that followed in the
next few minutes.

The prosecution, led by then-assistant solicitor Druanne White, showed
Burkhart had to reload his 7-shot .45-caliber Colt Commander pistol during
a shooting spree inside and outside the truck. Shane Walters was shot 6
times, including 1 wound to the back of the head. Stacy Walters was shot
in the right temple and the right cheek, and Ms. Cann was shot 3 times,
including the right temple and through the left eye.

When the shooting started, Shane Walters was in the driver's seat, and Ms.
Cann was in the middle between Burkhart and Shane Walters. Stacy Walters
was in the back portion of the cab.

Burkhart pulled the three bodies out of the truck and shot Ms. Cann while
she was on the ground, authorities testified. He then left the kudzu field
in the pickup truck and drove to his father's house near Seneca. His
father, Warren Burkhart, eventually took him to the Seneca Police
Department.

An Anderson Sheriff's helicopter later located the 3 bodies off Old Denver
Road near Pearman Dairy Road.

Ms. Cann had a 3-year-old daughter at the time of her death and Stacy
Walters had 2 sons ages 3 and 1.

Burkhart is not alone in his belief that he was fighting for his life.

His sister Lori and his wife also have proclaimed Burkhart's innocence
based on self-defense. The 2 women also say they hurt for the victims'
families.

"I pray their families will have peace," Lori said during an interview
with the Independent-Mail.

She has moved back to Seneca and is caring for her father, Warren, who has
cancer.

Burkhart's wife also has moved back to Oconee County after looking after a
sister in Charleston.

Michelle Burkhart said her husband has now been in jail longer they have
had been together. The two still are married.

"We were engaged for one year and married 5 years," she said.

She and Lori have been friends since their high school days in Seneca. She
has known her husband, now 39, since she was 15 years old.

"I pray for mercy and grace every day," Michelle said. "Troy feels like
when he is sentenced to life he will be killed in jail. Troy has told the
truth from day one."

10 years and 2 trials with death sentence hearings have been a different
kind of sentence for the victims' families who said there was no justice
when the 2nd trial was ordered.

Lawrence Walters, the father of two men, said he could not watch his sons'
killer's retrial.

"This trial is no justice," Mr. Walters said after the first trial. "I am
not going to sit down there and have them make a mockery of my 2 sons
laying up there in the ground."

Deborah Byrum, Ms. Cann's mother, also was deeply disturbed by the
re-trial.

"We don't need this," Ms. Byrum said. "All we've got is going to the
graveyard and grieving for my child and Shane and Stacy. I know them boys,
and they were good boys, and Sonya wasn't with them 25 minutes, and she
never even met Mr. Burkhart and now she's dead. I've lived with those
pictures of my daughter's brains being blown out." He said he never met
her until that day and only knew her 25 minutes when he shot her in the
face 3 times."

Mr. Walters said he can't forget those past events.

"You don't forget a call to go to the Anderson hospital and the morgue to
identify your sons and you see that they are that sickening blue color and
blood is running out of their heads and ears where that idiot shot them,"
he said.

Burkhart, who is in custody in Anderson, said Ronnie Burkhart and another
person were in the kudzu field the night of the killings.

Former Anderson Sheriff Gene Taylor testified that Ronnie Burkhart was the
target of an extensive local and federal drug investigation, including
ties to area attorneys and Florida lawyers.

However, Ronnie Burkhart died of cancer in April 2000 shortly after his
nephew was sentenced to death. Also, Ronnie Burkhart never testified, but
defense witnesses said he was someone to fear.

Shortly after marrying Ronnie Burkhart, Janice Burkhart was arrested a
month after his death from cancer and she pleaded guilty to giving false
information to a federal agent about a $390,000 cashier's check.

The state also targeted $1.3 million that was left in the control of
various attorneys and more than 260 acres in land parcels throughout
Oconee County that were identified as purchases for drug money laundering.

Some of the property included lots in such subdivisions as Keowee,
Townville Lakes Plantation, Keowee Inlet, Clemson Forest, Calhoun Point
and Loran Pointe.

Burkhart insists that his knowledge of his uncle's operations put him in
his uncle's sights.

"My uncle's own stepson as well as another employee testified that they
all worked for my uncle, and that he in fact wanted me killed," Burkhart
said.

For Burkhart's sister, it is an uphill battle to find those who believe
her brother.

"Apathy is our biggest hurdle," Lori Burkhart said. "It all seems so
beyond our control, and it is so frustrating."

(source: The Anderson Independent Mail)






WAHINGTON (state):

No death penalty for Zina suspect----Prosecutors charge Adhahn with
murder, rape, kidnapping in death of 12-year-old Tacoma girl


Time, the experts told him, was running out.

It was July 12, and Pierce County Prosecutor Gerry Horne was meeting with
FBI special agents and Tacoma police detectives to discuss the
disappearance of 12-year-old Zina Linnik.

If Zina was still alive  in a field or abandoned building with her limbs
bound together  her chances of survival were growing slimmer by the hour,
the investigators told Horne. She went missing July 4. She couldnt survive
much longer without food and water, Horne said they told him.

At a federal detention center on Tacoma's Tideflats sat Terapon Dang
Adhahn, the prime suspect in the girls disappearance.

Horne had a decision to make: Should he make a deal with Adhahn that would
spare him a possible death sentence in exchange for information leading to
the girl?

"The only one with the answers was the suspect," Horne told a news
conference Monday. "I agreed to do so. I will not seek the death penalty
in the aggravated murder of Zina Linnik."

The deal made, Adhahn, accompanied by his attorney, climbed into a police
car July 12 and directed investigators to a brushy area near Silver Lake
in East Pierce County, according to court records filed Monday. There,
they found Zinas body. She was hidden in the brush but not buried, Horne
said.

Prosecutors charged the 42-year-old handyman and tow-truck driver Monday
with aggravated 1st-degree murder, 1st-degree kidnapping and 1st-degree
rape in the girl's death.

Because Horne will not seek the death penalty, the only alternative
sentence if Adhahn is convicted of aggravated 1st-degree murder is life in
prison without possibility of parole.

Adhahn appeared in Superior Court to answer to the charges, and not-guilty
pleas were entered.

Calling Adhahn "a risk to the community" and "a risk for flight," Judge
John Hickman then set his bail at $5 million, an amount in addition to the
$2,025,000 bail set in connection with a series of rape charges unrelated
to the Zina case.

Adhahn, shackled and unshaven, remained silent during the brief hearing,
as he did during his last court appearance on the rape charges, to which
hes also pleaded not guilty. His next court session in the Zina case will
be Aug. 1.

The girl's relatives, including her mother and father, watched the
proceedings stoically.

An uncle, Anatoly Kalchik, later told reporters that the family  who was
not consulted about the death penalty decision  was glad Horne made a deal
to get Zina back, "so we could bury her with dignity, and she could rest
in peace."

Kalchik also thanked people in the Tacoma area and across the nation for
their support during the familys ordeal.

Zina died of blunt-force trauma to the head, according to court documents.
She was hit in the forehead, not hard enough to break the skin or fracture
her skull, but to fatally injure her brain, Horne said during his news
conference.

An affidavit of probable cause also states that investigators found
Adhahns DNA on Zina's body.

Detectives do not believe Zina was killed where her body was discovered,
the court documents state. An exact time of death has not been
established, Horne added. There is also no evidence that Adhahn had an
accomplice, he said.

Co-workers of Adhahns told investigators the Thai immigrant talked July 5
of needing to leave the United States to return to Thailand, according to
the court records. "He had not talked like that before," the affidavit
states.

Detectives who searched his gray Chevrolet Astro van discovered a plywood
box inside. The box is used to carry tools but was empty when
investigators searched the van 5 days after the girl went missing, the
court records state. Detectives found construction equipment "all over the
floor of the defendant's residence" when they searched it that day,
according to the affidavit.

In addition, a co-worker who saw Adhahn on July 5 reported that the van
which he said was full of tools and debris 2 days before  had been cleaned
out and apparently vacuumed, the court records state.

Zinas father, Mikhail Linnik, told authorities he saw a gray van pulling
out of the alley behind his home at the time his daughter disappeared. He
reported a partial license-plate number, which police used to identify
Adhahn's van.

Horne said Monday that Adhahn has not cooperated with investigators other
than leading them to Zina's body.

The prosecutor called his decision to take the death penalty off the table
an "unusual step," but added he had no regrets and said he would do the
same again under similar circumstances.

He said he remains a proponent of the death penalty because it allows such
deals to be made. In this case, "love and hope for Zina superseded the
death penalty," Horne said.

The prosecutor declined to discuss other cases in which Adhahn is being
investigated  including the disappearance and death of 10-year-old
Lakewood resident Adre'anna Jackson  and whether the death penalty would
come into play in any of those.

***********************

Reader Feedback - Prosecutor's deal wins support


We asked members of The News Tribune's News Network whether prosecutors
should use the death penalty as a bargaining chip with a murder defendant.
Here are some of their comments:

If there is a chance to save a life, I agree a deal should be struck to do
so.

Lin Ritnour ---- Lakewood

Make provisions for life in prison without the possibility of parole in
exchange for getting to a little girl who may still be alive, or refuse to
consider the deal and allow the child to die because you did nothing. Mr.
Horne was absolutely correct in this decision.

Larry J. Couture ---- University Place

It depends on the case and the suspect involved. It certainly cannot be a
standard for all cases, and any prosecutor who has a history of offering
deals should be watched.

Julie W. ---- Tacoma

If no death penalty for Terapon because of Zina, then how about the
others?

C. Jackson

If we push our anger aside and let the offender live, we have the chance
of him giving up information related to other missing children. It is
worth it if it helps families obtain vital information on the status and
location of missing loved ones.

Melissa Glatt----Federal Way

Yes, the prosecutor should bargain so that the family can have closure.

Hal Snodgrass

It is wrong for them to bargain.

Jamie Rutledge----Spanaway

Prosecutors should have whatever tools they need to solve crime and get
the maximum conviction. Where multiple crimes are involved with a single
suspect, a resolution of the crime is often more important than the
getting the maximum sentence.

Bob Gee----Lakewood

This type of deal, being made when theres still hope the child/victim is
still alive, is a devils bargain but useful.

L. Jones

Absolutely not! The decision should have been conditioned on the condition
of the little girl.

K.L. Thompson----Olalla

Pierce County Prosecutor Gerry Horne made the right call, as usual.
Finding the young victim should be of paramount concern. Mr. Horne and
police investigators had their priorities sorted out exactly as they
should be.

D. Hall

If the girl is alive, fine. If that was a ploy to take the death penalty
off the table, the deal should be canceled.

Blaine C. Garver

Is there really a significant difference between the death penalty and a
life sentence without possibility of parole? With appeals, it could be a
decade or longer before a death sentence is carried out. This should be
left to the judgment of the authorities, in consultation with the family.

Sheryl Watkins----Maple Valley

As a service member who has faithfully served his country so people have
rights offered nowhere else on this earth, I am appalled at this decision.
You cannot convince me that the stellar police forces today along with the
FBI would not have found her body. This is not justice.

Sgt. Maj. Dan Vessels----Yelm

In this case, it was believed that Zina could be found alive, and time was
of the essence. The authorities did the right thing in using any means
possible to find her immediately. The death penalty is more often that
not, a waste of time and money as appeal after appeal goes on and on,
torturing the family even further as there is no closure.

Lisa Lawrence----Tacoma

Absolutely. One, in some cases it could help find someone alive. Two, it
cost too much money to put someone on death row.

Dave Hite----Seattle

Under these circumstances it was the right thing to do. Zinas family has
her back and she is properly buried in a place where they can leave
flowers and remember her. How much worse would it be to not know where
your childs body was and have no place to visit?

Heather Christiansen

(source for both: Tacoma Herald Tribune)

****************

Carjackings----Use of deadly force means just that


I opened Saturday morning's Herald to see plastered across the front page
3 terrorized faces of people trying to escape a carjacker whose crime saga
stretched from Lake Stevens to Mill Creek. The look on the face of the
smallest child in the picture tore at my heart. That the carjackers were
willing to use a gun indiscriminately during their spree tells me that
they have no regard for innocent lives.

As I read the article, I see that one of those SOBs was shot multiple
times, resulting in non-life-threatening injuries. This tells me our cops
need bigger guns and/or more target practice. When the circumstances of a
crime allow officers of the law to justifiably use their weapons, let's
make sure they get the job done. Not only would it save the taxpayers a
lot of money to remedy the situation on the spot, but it would save future
victims. We read of calls to 911 where officers are unable to promptly
respond to burglars attempting to enter homes. Let's reduce the criminal
population when possible.

As we all know, our state is soft on crime. Also, our state has a very
inefficient death penalty. We've seen relatives of victims settle for life
in prison rather than being subjected over and over again to the trauma of
trials, not being able to go forward with their lives. We continue to read
over and over again about criminals being released from prison (after
serving only for plea deals and having their sentences unfairly reduced)
and harming or killing innocent children, and adults.

I'd be more willing to pay taxes to buy the guns and fund the target
practice than I would for all the touchy-feely programs that we provide
the criminals, which result in very unsatisfactory returns.

Ginni DeLeone----Lynnwood)



(source: The Herald)






SOUTH DAKOTA:

29 people saw state execute murderer----List includes friends of victim's
mother


When Dottie Poage walked out of the execution chamber, held a photo of her
son and described what it was like to watch Elijah Page die, she had a
group of supporters there to help her get through the ordeal.

Constance Young and her husband, Andrew, of Spearfish are among 29
witnesses to the execution whose names are listed on documents made public
Monday.

"We wanted to support her, if she needed anything," Constance Young said
in an interview. "Either shield her from the press or for just moral
support."

For the Youngs, it was the second time they made the trip to Sioux Falls
to support their friend. The last time, Gov. Mike Rounds stayed the
execution because of a conflict between Department of Corrections policy
and state law.

After an almost decade-long friendship between the Youngs and Dottie
Poage, they did not hesitate to witness the execution.

It was a somber, clinical and quick event, with little outward emotions,
Young said.

"There were no tears or crying, no jubilation," she said. "Nobody was glad
that it had happened."

After more than a year of legislative wrangling, delays and finally the
execution of Page, what could be the last documents in the case were filed
by corrections officials. Those documents, filed with the Lawrence County
Clerk of Courts last week, contain Page's death certificate and the
witness list.

The list includes the names of several corrections officials and staff, as
well as investigators and friends of Dottie Poage, the mother of murder
victim Chester Allan Poage. Page was convicted in Poage's murder in 2000
and last year voluntarily ended his appeals and asked to die. In South
Dakota's first execution in 60 years, Page was pronounced dead at 10:11
p.m. July 11.

"I was struck with how humane this form of execution is," said Lawrence
County State's Attorney John Fitzgerald, who also was a witness to the
execution. "There was no suffering that I could see. No pain that I could
see on the face of the person being executed."

An autopsy was done on Page's body, but the autopsy report has not been
filed or released.

Before Page was executed, Warden Doug Weber asked him twice whether he had
last words, and Young said she and others were not surprised when he gave
no last statement or show of remorse.

"I don't think he is a person that ever had a great deal of emotion about
anything that he has done," Young said.

When the curtains to the execution chamber were opened, Page had his eyes
closed and only blinked a couple of times when asked for his last
statement, Fitzgerald said.

"I thought that would have been his golden opportunity to address the
family and atone somewhat for what he had done," he said.

Witnesses have differed on whether Page's death does more than close on
part of a torture murder case.

As a prosecutor, an execution can give victims and their families a sense
of closure and a finality to the legal case, Fitzgerald said.

"I participated in, and actually ended up watching, justice carried out,"
he said. "And it was a heinous, horrible crime."

The murder of Chester Poage is a textbook example of how the death penalty
should be applied to a murder case, Fitzgerald said.

With the possibility of Dottie Poage witnessing a 2nd execution, that of
Briley Piper who was convicted with Page in the murder, there may be
little in the way of closure, Young said.

As a witness, Young said she was not burdened by watching Page die.

"That was not a problem. Because the fact is, it's what he chose, it's
what he deserved," she said. "And it's over with."

(source: Argus Leader)






NORTH CAROLINA:

CAPITAL MURDER TRIAL SPECIALIST----Pastels cloak fierce defender


Public defender Lisa Dubs has taken a number of high profile capitol
cases, the latest defending Jerry Anderson, the Caldwell county man
accused of killing his wife.

**

Some of Lisa Dubs' Cases

June 1997: Christy Holland Seitz was acquitted of murder and conspiracy in
the death of her boyfriend, Stacy Speagle. Prosecutors said Seitz enlisted
a friend, Bryce Delon, to shoot the 21-year-old Speagle.

The prosecution focused on a conversation between Speagle and Seitz the
night before his death. In the talk, which was recorded, Seitz asked him
when he would get off work and where he planned to buy bread and milk.

But Dubs pinned the crime solely on Delon.

July 2007: A jury deadlocked in the murder trial of Jerry Anderson, 48, of
Caldwell County. All but one juror voted not guilty.

The prosecution brought witnesses who heard the couple arguing on the day
she disappeared, and who watched Jerry and Emily drive into the woods
together before hearing 2 gunshots. Jerry Anderson emerged alone.

Dubs said that investigators rushed to judgment and that the state ignored
evidence showing Anderson's innocence.

October 2007: Lisa Greene is scheduled to go on trial in October in the
Jan. 10, 2006, fire deaths of her 2 children in Midland.

An arson investigator hired by the defense has said that Greene is
innocent and that the fire was accidental and started in the children's
bedroom.

**

Lisa Dubs' client walked out of jail Monday, free on bond after a jury
deadlocked Friday in his murder trial.

Dubs guided Jerry Anderson out of the jail and told him not to give
interviews.

For 18 months, Anderson sat in jail, waiting to face trial for the
shooting death of his wife, Emily. In the end, after 34 hours of
deliberation, only one juror voted to convict.

For Jerry Anderson, the verdict allowed him a brush with freedom, although
he still is charged with 1st-degree murder. Prosecutors have not said
whether they will take him to trial again. But, for now, he is free.

For Dubs, it's another stop in her 20-year career tackling some of the
region's most gruesome and high-profile capital murder cases.

Dubs, a public defender who started a private practice in Hickory 11 years
ago, helped acquit Christy Holland Seitz, a 22-year-old charged with
murder and conspiracy in the death of her boyfriend, who was shot to death
in 1996.

And in October, she will defend Lisa Greene, who is charged with setting
fire to her Cabarrus County mobile home and intentionally leaving her 2
children inside to burn to death.

With her tousled, blond hair and soft, girly voice, Dubs looks and sounds
more like Melanie Griffith than a typical public defender from Catawba
County.

She wears lime green suits and stiletto high heels, listens to her iPod
and shops online while juries deliberate, and chats with courtroom
spectators about her 1-year-old granddaughter.

"I've had jurors tell me, `Oh, this poor girl, look at her lawyer. She's
really in trouble,' " Dubs said. "But if they underestimate me, that's a
good thing."

While she and her legal team, Taylorsville-based attorney Robert Campbell
and private investigator Steve Ehlers, wait to hear if Jerry Anderson will
face another jury, Dubs is working on seven other capital murder cases.

One man, a former solider who served in Iraq, is charged with killing his
father and his girlfriend in their Catawba County home. Another man is
charged in the deaths of 3 women in Hickory, and another client is charged
with killing his girlfriend after dousing her apartment in gasoline and
setting it on fire.

She recognizes the crimes are horrendous and realizes that not all of her
clients are innocent, but the staunch opponent of the death penalty says
that's why she takes the cases.

"Most of us aren't born to be lawyers or doctors ... or killers," she
said. "A lot of them are made that way. I like to understand what got them
to that point."

Dubs, a Hickory native, studied history at Lenoir-Rhyne College and went
to law school at Wake Forest. She graduated in 1987, in the height of the
Reagan era, but wasn't interested in corporate law like many of her
classmates.

Criminal law, she said, was the only thing she ever wanted to do.

Everyone, no matter how brutal the crimes they are charged with, deserves
a strong defense, she said.

"We represent people who have done all kinds of bad things. They might be
very damaged, but they are not the monsters they are made out to be."

For that, and her dogged and passionate courtroom style, Dubs has won
respect for tackling some of the most challenging cases that seem like a
guaranteed win for the other side.

"We've had a judge come up to her and say, `If I'm ever charged with
murder, I'm going to hire you,' " Ehlers recalled.

Dubs knows she's in a job that often draws scorn and criticism but said
she tries not to focus on taking sides between the defendant and the
victim. She's gone to the funeral of a man killed by his brother, only
later to defend the brother.

Defending someone she knows is guilty isn't a problem for her, she said,
because a win isn't necessarily a not guilty verdict. Because so many of
the clients she represents could face execution, in some cases, she counts
a life sentence as a win.

Worrying about the morality of defending someone she knows is guilty
doesn't bother her, she said, because she thinks the death penalty is
senseless. Executing someone as punishment for murder is illogical.

"If killing is wrong," she said, "it's always wrong."

(source: Charlotte Observer)




USA:

9th Circuit Axes Bigger Panels


After a fleeting experiment with increasing 9th U.S. Circuit Court of
Appeals en banc panels from 11 to 15 judges, the court has axed the bigger
panels by reverting to the 11-judge reviews before the end of the planned
2-year test.

The 9th Circuit, the largest federal appellate court in the nation with 27
active judges, initiated the experiment in part after Sen. Dianne
Feinstein, D-Calif., proposed it as a means of appeasing conservatives
bent on splitting the circuit.

THE 'LIMITED EN BANC'

The en banc process is used in all circuits to reconsider the work of a
three-judge panel. In other circuits, all active judges participate in
rehearings. But only the 9th Circuit, due to size, has used what's known
as the limited en banc, drawing at random from among the 27 judges to form
rehearing panels of 11 judges.

The appeals court decided roughly 30 cases in 2006 and the first half of
2007 by 15-judge panels. The rule change will not affect new panels until
the next en banc panel arguments in September.

"It was pretty unanimous that we were not gaining anything by going from
11 to 15 judges," said 9th Circuit Judge Diarmuid O'Scannlain, who is
based in Portland, Ore. O'Scannlain, an appointee of President Ronald
Reagan, said, "I would have preferred to wait until the 2 years were up
because that is what we notified the bar we would do."

Arthur Hellman, law professor at the University of Pittsburgh, has studied
the circuit for years and the effect of en banc panel size in particular.
"I have to say there was never any very good reason to go to 15," he said.

"My own research provided strong evidence that 11 judges were doing what
the full court would have done," he said. Hellman speculated that the move
to 15 judges was partly a response to concerns that 11-judge panels did
not represent sufficiently the view of the full court. But he said
statisticians have concluded the court could go down to as few as 7 judges
and still get results representative of the views of the whole court.

He noted that none of the roughly 30 decisions by the 15-judge hearing
panels produced close votes by a divided panel.

O'Scannlain said 15-judge panels created some problems. It restricted the
time for individual judges to ask questions in a 30-minute argument and
made post-argument deliberations much longer, he said.

(source: National Law Journal)

***************

O'Connor urges governors to improve civics education


States must teach their students more about government or risk losing any
future respect for laws and judicial rulings, former Supreme Court Justice
Sandra Day O'Connor told a dwindling group of the nation's governors in
Traverse City on Monday.

On the last day of the 4-day National Governors Association conference at
the Grand Traverse Resort, O'Connor said an uneducated public is
responsible for recent harsh criticism of the judiciary.

She cited ballot initiatives in South Dakota and Colorado as examples.

In South Dakota, voters defeated a measure to strip governmental immunity
from judges, opening them up to civil lawsuits from people who appeared in
their courts. In Colorado, voters defeated a measure to put term limits on
state Appeals and Supreme Court judges.

She also mentioned efforts to impeach federal judges. As recently as 2005,
some conservatives were calling for the impeachment of Supreme Court
Justice Anthony Kennedy for decisions he's made on a variety of issues,
from the death penalty to citing international precedent in some of his
opinions.

"Our judicial system has proven superior to any other form. It would be
folly to squander this precious constitutional gift," O'Connor said. "And
the key to maintaining the system lies in education of citizens and that's
where you come in."

She told the governors that civics education should become mandatory for
students and that the education should be interactive.

"We need debates, mock trials and personal engagement. We also need to
capitalize on students' computer skills," she added. "And we need to offer
opportunities that will engage the students more than reading some dull
textbook."

Former Texas Supreme Court Chief Judge Tom Phillips told governors that
the way states select judges is key to maintaining an independent
judiciary.

"Judges are now making more controversial decisions than ever before, so
political parties and interest groups are more interested than ever on who
is serving," he said. "Money is flowing into campaigns in unprecedented
amounts and very little of it is from widows and orphans."

He touted the states that had merit-based appointments to the judiciary,
rather than partisan elections. In Michigan, state appelate and Supreme
Court judges are nominated by political parties, but run as non-partisan
candidates.

(source: Detroit Free Press)

*******************

Expedience no reason to kill a man


You don't know what it's like, and neither do I. But we can imagine.

I've always thought it must feel like being buried alive. Lungs starving,
lying in blackness, pounding on the coffin lid with dirt showering down,
no one hearing your cries.

Or maybe it's like locked-in syndrome, a condition where you lose muscle
control -- can't move a finger, turn your head, speak. Your body entombs
you. You scream within, but no one hears.

Something like that, I think. Something where you're trapped,
claustrophobic, unable to believe what is happening, unable to make anyone
hear you. That's how it must feel to be an innocent person on Death Row as
execution day draws close.

Tuesday was Troy Anthony Davis' scheduled execution day, though I have no
idea if he is an innocent person. I do know that he was convicted of the
1989 killing of a police officer, Mark Allen MacPhail, in Savannah, Ga.
And I know that he was on the scene, a Burger King parking lot, that
fateful night.

But I also know that Davis has always his maintained his innocence. And
that no physical evidence -- no gun, no fingerprint, no DNA -- ever tied
him to the crime. And that he was convicted on the testimony of nine key
witnesses. And that seven of them have now recanted. They lied, they say.

They were scared, they were bullied and threatened, and they said what the
cops wanted to hear. Of the 2 witnesses who have not recanted, one is a
fellow named Sylvester ''Red'' Coles; some witnesses claim he's the one
who actually shot MacPhail when the officer tried to break up a parking
lot altercation.

Monday, one day before Davis was scheduled to die, the state parole board
issued a 90-day stay of execution.

You and I have no idea how that must feel, either, but we can imagine. The
buried man gets a sip of air. The paralyzed man moves his toe.

And then back down into the coffin, back down into the tomb of your own
skin, back in line to die. Surely Davis' lawyers have explained to him the
1996 federal law, signed by President Clinton, that is throwing roadblocks
in his way. Designed to streamline capital cases, it prohibits the
introduction of exculpatory evidence once the state appeals process is
done. But just as surely Davis, if he is innocent, must wonder how he
could have presented evidence he didn't yet have. And he must wonder, too,
how there can be a time limit on truth -- especially when a human life is
at stake. How can you execute a man when there remain serious questions
about his guilt?

That's barbarism, not justice.

What's fascinating is that, though 67 % of those polled by Gallup
pollsters approve of capital punishment in murder cases (and 51 % say it's
not imposed often enough), 64 % admit it does not deter murder and 63 %
believe an innocent person has probably been executed since 2001. In other
words, the system doesn't work, we know it doesn't work, yet we want it to
continue -- and indeed, expand. What kind of madness is that? It's an
intellectual disconnect, a refusal to follow logic to its logical end.

It is, of course, easier to countenance that madness, ignore that refusal,
when the issue is abstract, when death row is distant, theoretical and
does not involve you.

But what must it feel like when it is not abstract, when it is you sitting
there in the cell watching the calendar move inexorably toward the day the
state will kill you for something you absolutely did not do? Is there a
suspension of belief? Do you tell yourself that surely people will come to
their senses any minute now? Does the air close on you like a coffin lid?
Does darkness sit on your chest like a weight?

You and I can only imagine. Some men have no need to try.

(source: Commentary, Leonard Pitts Jr., who won the Pulitzer Prize for
commentary in 2004; Dallas Morning News)