[Deathpenalty] death penalty news----GA., OHIO, IDAHO, N.C.

[Rick Halperin]

Oct. 2


GEORGIA:

Police officials say no state eyewitness law needed


Georgia law enforcement officials on Monday warned a legislative panel
against passing a law mandating how police must conduct eyewitness
identifications, saying it could handcuff officers looking to solve
crimes.

Louis Dekmar, past president of the Georgia Association of Chiefs of
Police, said law enforcement should study the issue and come up with its
own guidelines. A state law would be too inflexible to be practical, he
said.

Dekmar, chief of the LaGrange Police Department, testified before a House
study committee that is weighing whether Georgia should create rules
governing police lineups.

The legislative hearings come after six men in Georgia sent to prison on
the strength of eyewitness IDs were recently exonerated through
post-conviction DNA analysis.

Questions about the reliability of witness IDs have also cast doubt on the
conviction of Georgia death row inmate Troy Davis, who was found guilty of
killing a police officer. An appeal in his case is set to be heard before
the Georgia Supreme Court Nov. 13.

The House panel is hearing testimony about whether it is better to show
witnesses photos of potential suspects sequentially, rather than all at
once. They are also looking at whether the lineup should be
"double-blind," meaning that the investigator running it should be in the
dark about the suspect's identity. That would prevent any intentional or
unintentional signals to the witness about whom to select.

2 police officials who have experience training their colleagues on
eyewitness techniques told committee members that the sequential,
double-blind system is preferable. Sgt. Paul Carroll, retired from the
Chicago Police Department, and Capt. Ken Patenaude, of the North Hampton,
Mass., police Department, said that method yields fewer mistakes.

"The goal here is to get justice and to get the right person," Carroll
said.

He said a police officer conducting a lineup "is going to smile like a
canary when the victim of a heinous crime picks the right guy out of a
lineup," but an investigator who doesn't know the suspect's identity would
not.

Showing photos one at a time means that a witness is more likely to
compare the images to his memory of the assailant, the police experts
said. When the photos are presented all at once the tendency is to compare
them to each other, they said.

Still, Carroll and Patenaude said they don't support making such standards
law. They said the changes could be implemented through guidelines.

Dekmar said the jury is still out on how the techniques advocated by
Carroll and Patenaude work in the field.

He said if case law changes after the state Legislature passes a law
mandating eyewitness ID guidelines, lawmakers would have to reconvene to
address the problems. That would be cumbersome since the state Legislature
typically only meets for 40 days a year.

"If we are talking about guidelines, you simply take out a page from the
3-ring binder and replace it with another one," Dekmar said.

"Everything changes when you start regulating the process."

The panel is being led by state Rep. Stephanie Stuckey Benfield, an
Atlanta Democrat, who introduced legislation last year to create uniform
eyewitness standards. The bill stalled after prosecutors objected.

Barry Scheck, the former O.J. Simpson lawyer and co-founder of the leading
the Innocence Project in New York, is set to testify at the committee's
next hearing Oct. 22.

Georgia Innocence Project: http://www.ga-innocenceproject.org

Georgia Association of Chiefs of Police: http://www.gachiefs.com

(source: Associated Press)


OHIO:

Ohio Newspapers Support Call for Temporary Suspension of Death Penalty


I blogged last week about the report of the ABA Death Penalty Assessment
Team and its call for Gov. Ted Strickland (D) to temporarily halt
executions and commence a state-supported investigation into the
deeply-flawed capital punishment system. I also disclosed that the
chairperson of the team is my wife, Phyllis L. Crocker, an associate dean
at Cleveland-Marshall College of Law.

The team's exhaustive 452 report demonstrates that Ohio fails to meet all
but 4 of 93 protocols for assessing whether the death penalty is
administered fairly, accurately, and in accordance with the requirements
of due process of law. As I emphasized in my earlier post, the report is
not about calling for the abolition of the death penalty, but insuring
that the death penalty is applied justly, and that is something that death
penalty supporters and opponents alike should endorse.

It is encouraging to see that Ohio newspapers are beginning to speak out
in support of the report's request:

* Cleveland Plain Dealer- "If Ohio must practice capital punishment, it
has no room for error."

* Akron Beacon-Journal (column by opinion editor Michael Douglas) -
"Eliminate the death penalty, and you rightly avoid the possibility of
error. Keep the punishment, and the moral responsibility of the governor,
acting for all Ohioans, is to ensure its fair and effective
administration.

Ohio isn't there yet."

* Newark Advocate - "As long as we have it, and casting aspersions on no
one, the death penalty demands continuous review. This way, when it is
issued, we will know we have done all we can to have sentenced the
convicted fairly and properly. Given the heinous crimes associated with
receipt of the death penalty, this might seem to be a heavy burden. But it
is the right thing to do."

* Dayton Daily News - "Ultimately, the question to be asked about the bar
association's proposal is not about who was on the committee, but whether
the facts are right. ... At the very least, a state ought to be able to
demonstrate adherence to reasonable rules before putting people to death,
and a certain, consistent logic as to when it will -- and won't -- do
that."

The report has been harshly criticized as well, particularly by Hamilton
County Prosecutor Joe Deters, mainly on the basis of perceived bias
because several of the team members oppose the death penalty and the team
included only former prosecutors, not current prosecutors. (If we're going
to talk about bias, I think that Mr Deters' bias should be considered as
well.) However, alleged bias aside, the factual foundation of the heavily
documented report is sound, and the report's call for temporarily halting
executions and state-sponsored study of the system's failings appears to
be gaining ground.

(source: Jeff Coryell, The Plain Dealer)

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

Death penalty study couldn't get traction


Death penalty opponents hoping a long-awaited study would bolster their
efforts to end capital punishment saw the opportunity overshadowed by
questions over the study's bias and much bigger news from the U.S. Supreme
Court. The analysis the American Bar Association released last week said
Ohio's death penalty system was so flawed that Gov. Ted Strickland should
immediately halt executions until the state could do its own study and fix
the problems.

Anticipation over the report was high, and the state's American Civil
Liberties Union chapter scheduled a rally two days later, hoping to ride
the tide of the report's findings.

But the study found itself in trouble almost immediately over the makeup
of the 10-person team of Ohio lawyers.

No members are current prosecutors. Four are defense lawyers, a 5th is a
lawyer and professor who works to free innocent people through DNA
testing, and a 6th is a Democratic lawmaker, Rep. Shirley Smith of
Cleveland, long opposed to the death penalty.

Even the crime-fighting feather in the team's cap, Geoffrey Mearns, a
former assistant U.S. attorney general who prosecuted Oklahoma City bomber
Terry Nichols, turned out to have strong reservations about capital
punishment.

"The death penalty in the United States, if we have one, should be
reserved for the worst offenders for the worst offenses, and only if a
system exists to ensure adequate legal defense at every stage," Mearns,
dean of Cleveland State's Cleveland-Marshall College of Law, said in an
interview after the report was released.

Even the name of the ABA project, reviewing laws in eight states, seemed
to indicate a bias: the "Death Penalty Moratorium Implementation Project."

"All you have to do is look at the membership of this group and see where
it's going to go," said John Murphy, executive director of the Ohio
Prosecuting Attorneys Association.

Although the study made the front page of most newspapers, the rally 2
days later, for which supporters had promised crowds in the thousands,
drew only about 200 people, about average for Statehouse protests.

Yet opponents weren't left without hope. The day after the ABA report was
released, the U.S. Supreme Court announced it would consider a challenge
to lethal injection by a pair of Kentucky death row inmates.

The inmates say injection constitutes cruel and unusual punishment because
prisoners can suffer agonizing pain if the three-drug cocktail isn't
administered properly.

Similar lawsuits are making their way through federal courts around the
country, including Ohio.

A ruling in favor of the inmates likely wouldn't end the death penalty,
since lower-court federal judges have noted that states' procedures are
readily fixable. But it could force delays or changes as states debate
their injection protocols.

That makes it the bigger news last week, overshadowing the study's
findings.

The study found the state's system met only 4 of 93 standards identified
by the ABA for a properly functioning capital punishment system. The
report says Ohio fails to provide adequate legal help, doesn't preserve
DNA evidence long enough, doesn't properly compare one death sentence to
other similar cases and has produced a system full of racial and
geographic disparities.

The ABA's defense of the team's makeup fell flat, especially when former
ABA president Michael Greco, who handled the report's release, said he
didn't know the positions members held on the death penalty.

That stretched credulity given Smith's efforts over almost a decade to
pass bills to study the fairness of the death penalty. Another team
member, David Stebbins, is one of the state's most experienced and
best-known capital defense lawyers.

Criticism of the report didn't just come from prosecutors. Chief Justice
Thomas Moyer of the Ohio Supreme Court, who has upheld his fair share of
death sentences over the years, issued a brief statement promising to look
at the results, while noting, "the Supreme Court of Ohio was not consulted
in the preparation of this 500-page report."

(source: Associated Press)

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

UA professor fights death penalty----Law professor aids American Bar
Association's death penalty review asking for a halt on executions


Ohio still uses the death penalty but there is some hope to change that,
according to an American Bar Association report released Sept. 24.

The report said Ohio should temporarily halt executions and allow for a
review of its system. It was issued following a 30-month review of the
current system which it said had "inadequate procedures to protect the
innocent, inadequate qualification standards for defense counsel, racial
disparities in Ohio's capital sentencing and death sentences imposed and
carried out on people with severe mental disability."

University of Akron law professor Margery Koosed was involved in creating
the report.

"The ABA throughout its history has worked to assure that the American
people have a fair and accurate criminal justice system, and an effective
civil justice system as well," Koosed said. "As for the criminal justice
system, they've really focused on due process and assuring that it
delivers justice to society and to those who are accused.

"As a part of that responsibility, the ABA has consistently over the years
developed standards addressing each component of the criminal justice
system and all of the lawyers under it."

Koosed is very familiar with Ohio's criminal law system. She started
getting involved in similar work more than 33 years ago with her first job
teaching for the university.

"I actually came to the law school in the clinical program," she said.

For 2 years Koosed said she administered legal clinics which handled
criminal appeals and post-conviction before she moved to full time
teaching.

In addition to Koosed, the panel included nine other members on the Ohio
Death Penalty Assessment team. Koosed said the team was made of federal
and state court judges, federal and state legislators, three law
professors and 2 people in private practice.

"I think we should take to heart what the ABA study has shown and, in
fact, we should temporarily halt executions, which is what the ABA team
concluded."

The panel unanimously concluded that Ohio should halt executions pending a
complete review of its system.

There were, however, two people who abstained from the decision. One was a
sitting judge and could not take a position, and the other was the dean of
the Cleveland State Law School, said Koosed.

She said he never identified his reason for abstaining.

"We're hoping that the study is carefully evaluated and that it will lead
to some further study by the state," she said. "It appears that Gov.
Strickland and the (Ohio) attorney general Mark Dann are evaluating the
report."

Koosed explained why it was important for Strickland to look at the
report.

"Technically speaking, the prosecutor requests the death warrant but the
governor ultimately decides, with the assistance of others in the
executive branch, whether a particular execution goes forward," she said.
"The governor and the Ohio supreme court are the bodies that decided
whether executions go forward."

According to Koosed, the ABA takes no position on the death penalty.
However, its report requires a state to reach benchmarks put into place
prior to the study.

"Basically we set up benchmarks and standards so that one could assess
individual jurisdictions' ability to provide a fair and accurate system,"
Koosed said. "There are 93 of the protocols that were developed in the ABA
committee looking at systemic questions around the country."

Those protocols include collection, preservation and testing of DNA and
other types of evidence; law enforcement identifications and
interrogations; crime laboratories and medical examiner offices;
prosecutorial professionalism; defense services; the direct appeal
process; state post-conviction proceedings; clemency; jury instructions;
judicial independence; racial and ethnic minorities; mental retardation
and mental illness.

Each section was evaluated on a scale of five ratings: "in compliance,"
"partially in compliance," "not in compliance," "insufficient information
to determine statewide compliance" and "not applicable."

"We found that they (Ohio) fully complied in the state with only 4 of the
protocols," Koosed said. "We partially met just 37 and we totally failed
to comply altogether with 28, and there were others we just couldn't
resolve or really assess."

According to Koosed, about 23 of the protocols could not be evaluated due
to insufficient data in the study.

"Basically, we're four for 93," she said.

Koosed said that she does not personally support capital punishment.

"I've been training lawyers and judges and prosecutors on occasion, with
how these cases need to be conducted, so I've really been focusing, and of
course been teaching classes, surrounding this area and writing a lot in
this area. I haven't felt the need to go to the moral/ethical kinds of
problems or questions about it."

"I also tend to conclude, in looking at it from a criminal justice
standpoint, that we're not getting any real benefit for the efforts that
are put into capital sentencing systems: we'd be better served to be
putting this into an alternative to executions.

"They are costly, they are mistake-prone, as is clear, and we aren't in a
position to do as much with protecting society as we could if we weren't
mired in this process."

Koosed also said victims of capital crimes were often against executions
because it did not help.

"It didn't help them in terms of the waiting, the deferring, or the
ability to grapple with this, that nothing was going to bring back their
loved ones and others have talked about not wanting to kill someone else,
and create another set of victims, the family members of that person, to
honor their child or spouse or their parent," Koosed said.

"I guess looking at it as I have from the criminal justice perspective, I
don't see that this is a necessary form of punishment and I don't see that
it is a particularly beneficial or helpful means of punishment," she said.
"Given the problems that we obviously have and sadly may continue to have,
this is not a process that citizens of Ohio should rely on to deliver
justice."

Koosed said she also took part in a similar investigation into Ohio's
death penalty system in 1997. She co-chaired the committee put together by
the Criminal Justice Committee. It was created in response to a previous
national ABA investigation on the death penalty system.

Over the years, Koosed has also assisted in various professional
organizations with amicus briefs. She has only been involved with the 2
Bar Association studies.

According to the ABA report, between 1981 and 2005 there were a total of
2,768 capital indictments from 83 of Ohio's 88 counties.

Of these, 60 % of capital indictments came from 3 of Ohio's major
metropolitan areas. Slightly more than 1,000, or 37 %, came from the
Cleveland area of Cuyahoga County. Almost 500 indictments - 17 %- are from
the Columbus area of Franklin County, and 154 or 5 %, are from the
Cincinnati area of Hamilton County.

Ohio's death penalty has been abolished and reappointed in multiple
incidents. The Ohio General Assembly, according to the ABA report, passed
the most recent death penalty statute in 1981.

(source: The Buchtelite- (University of Akron)

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

Death row Scot faces bail hearing


An Edinburgh man who was moved off death row after more than 20 years
could be freed from jail this week, his supporters have revealed.

Kenny Richey, 43, was transferred from Ohio's death row to another county
jail after judges overturned his arson and murder conviction 2 months ago.

Amnesty International said he now faced a bail hearing on Tuesday.

He was convicted in 1987 of an arson attack on an apartment block in an
Ohio town that killed Cynthia Collins, 2.

He was sentenced to execution, but after a long legal fight a federal
appeals court threw out his conviction and death sentence in August.

"The bail hearing is an important milestone for Kenny, but whether or not
he gets to finally savour a bit of temporary freedom, the really important
thing is the retrial"----Karen Torley, Kenny Richey campaigner

Amnesty International Scotland director John Watson said Tuesday's hearing
could see Richey released or an announcement made about a date for his
retrial.

Mr Watson said: "The bail hearing could mark another step on the long road
to freedom for Kenny.

"After more than 2 decades enduring the living hell of death row, Kenny is
now getting closer to the retrial he's always called for.

"We've been saying for many years that Kenny Richey received only shoddy
justice at the hands of the Ohio justice system and it's imperative that
Kenny finally gets a proper retrial and the opportunity for justice so
long denied him."

'Ineffective counsel'

Karen Torley, his ex-fiance and head of the Kenny Richey campaign, said:
"The bail hearing is an important milestone for Kenny, but whether or not
he gets to finally savour a bit of temporary freedom, the really important
thing is the retrial.

"Kenny is looking forward to his day in court and he's totally confident
that this time his total innocence will be beyond doubt."

Richey has spent years fighting his conviction, saying he received
ineffective counsel in his trial. (source: BBC News)

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

Judge sets $10 million bond in Richey murder re-trial


A judge set a $10 million bond Tuesday for a U.S.-British citizen facing
retrial after his death sentence and murder conviction were overturned.

Visiting Judge Alan Travis made the ruling in the same northwest Ohio
courthouse where Kenneth Richey's death sentence was handed down two
decades ago. He also ordered that Richey must be placed under 24-hour
house arrest if released.

Richey, 43, is again facing charges that he set an apartment fire that
killed 2-year-old Cynthia Collins in 1986.

To be freed from jail on bail, Richey would need to come up with 10
percent of the bond amount, or $1 million. "We're going to try to raise
the money," defense attorney Ken Parsigian said, while acknowledging that
Richey's family doesn't have it.

During the hearing in Putnam County Common Pleas Court, Richey appeared
clean-shaven and paunchy, in contrast to the thin, handsome man with a
mustache who was tried 20 years ago.

He never smiled, even when his family mouthed words of encouragement and
tried to make him laugh.

He spoke only once, when the judge asked if he understood that if he was
released, he wasn't to have any contact with witnesses.

Richey responded, "Yes sir," a trace of his Scottish accent apparent.

Later, as he was led out of court in handcuffs, Richey declared: "Pretty
good day."

Richey had been convicted of aggravated murder and spent 20 years on death
row, once coming within an hour of being executed, until a federal appeals
court determined in August that his lawyers mishandled his case and that
expert testimony could have contended the fire wasn't intentionally set.

The court ordered that Richey receive a new trial or be released.
Prosecutors plan to try Richey again on aggravated murder, aggravated
arson and child endangering charges. No trial date has been set.

Prosecutors said Richey set the Columbus Grove blaze to get even with his
former girlfriend, who lived in the same apartment building as the girl
who died. Some members of Collins' family came to court Tuesday wearing
T-shirts and buttons with her picture.

Parsigian used the hearing to lay out a snapshot of his defense, saying
the state's case has become much weaker over the past 20 years while
Richey's case has grown stronger.

Parsigian said he can easily dispute evidence that showed the fire was set
on purpose and suggested that the victim may have been the one who started
it. He said the child had twice before started fires that had to be put
out by the fire department.

"She was fascinated with matches," Parsigian said. "That never came up at
trial."

Putnam County Prosecutor Gary Lammers argued that Richey should not be
granted bail or it should be set at $25 million. He said Richey made
threats against witnesses and law enforcement officials during his
previous trial and has since made other, similar threats.

(source: Associated Press)






IDAHO:

Death row inmate must be retried or released


A man who spent 25 years behind bars for murder scored a legal victory
today - after the U.S. Supreme Court declined to hear an appeal by the
state of Idaho in his case.

A jury convicted Mark Lankford of killing Marine Captain Robert Bravence
and his wife Cheryl. The couple's bodies were found in rural Idaho County
after police found their abandoned van near a Los Angeles bus terminal
in1983.

"I was illegally convicted of a double murder that was committed by
someone else who has confessed," Lankford told NewsChannel 7 in a prison
interview Monday afternoon.

Lankford and his brother Bryan, were both arrested and charged with the
crime, and in separate trials blamed each other for killing the couple.
There were no witnesses to the murder and no weapon ever recovered.

Because of a plea agreement, Bryan was sentenced to life in prison with
the possibility of parole. Bryan has recanted his story several times and
has confessed to killing the Texas couple, saying he acted alone.

Despite that confession, Mark was ordered to be executed - a ruling he
began appealing since the day it came down more than 22 years ago.

In November of 2006, the Ninth Circuit Court of Appeals ruled that
Lankford be retried or released from prison, after the court found
improper jury instructions were given by his attorney.

With the US Supreme Court ruling, the state now must follow the Ninth
Circuit's original instructions - to file new charges in the case against
Lankford, or release him from prison.

The Idaho County Prosecutor's has jurisdiction in the case - and must now
decide if they will file new charges in the case. Calls to the
prosecutor's office in Grangeville were not immediately returned.

The prosecutor tells KTVB that charges will be refiled in the case - and
that Lankford could be transfered back to an Idaho County jail within
30-60 days.

Lankford said he is hopeful about the decision.

"I've always been innocent, and I've always said that and I've never
deviated," Lankford said. "The evidence conforms to (my brother's)
confession after the fact."

(source: KTVB News)






NORTH CAROLINA:

Council Of State Declines Execution Reconsideration


The state's top elected officials have decided not to revisit North
Carolina's method of executing death row inmates, rejecting a judge's
findings that they made mistakes when approving the so-called "execution
protocol" earlier this year.

The Council of State met Tuesday and decided that Administrative Law Judge
Fred Morrison didn't have the jurisdiction to decide the issue.

Morrison ruled in August that the panel failed to hear arguments from
those representing condemned inmates before they approved the new
execution method.

The Council of State is comprised of the governor, lieutenant governor and
eight other statewide elected officials. Their rejection of the judge's
ruling can be appealed to a state court.

(source: NBC News)