[Deathpenalty] death penalty news---OHIO, USA, MISS., GA.

[Rick Halperin]

Oct. 6



OHIO:

Former resident who was on death row expresses concern over Ohio's policy


The American Bar Association (ABA) recently deemed Ohio's death penalty
system so flawed that they requested Gov. Ted Strickland to immediately
halt all executions. The ABA panel came to their conclusion when Ohio's
capital punishment system met only four of their 93 standards.

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.

After news broke of Ohio's failing grade, however, some started to
question whether the panel of evaluators conducted an unbiased study. The
10-person team of Ohio lawyers included: 4 defense lawyers, a
lawyer/professor who works to free innocent people through DNA testing and
a Democratic lawmaker who has long been opposed to the death penalty.

The latest headlines in Ohio death penalty news concerns 2 cases in which
the Ohio Supreme Court has overturned death-sentence decisions and granted
new trials: Vernon Brown, a Cleveland man who was sentenced to death in a
double homicide, is being given a new trial because prosecutors failed to
disclose documents that implicated someone else, the court ruled. Kenneth
Richey, a U.S.-British citizen who spent 20 years on death row after he
was convicted of setting a fire that killed a 2-year-old girl, received a
second chance at freedom when a federal appeals court ruled that his
former lawyer mishandled his case.

A former Hocking County resident, Dale Johnston, has a similar story to
tell. Johnston was found guilty on 2 counts of aggravated murder in
connection to the horrific killings of his stepdaughter, Annette
Cooper-Johnston, 18, and her boyfriend, Todd Schultz, 19.

His death sentence was never served because of an overturned verdict in
1988, which ultimately led to the charges being dropped. He was released
in 1990 after serving 5 years on Ohio's death row and spending more than 7
in prison.

This week marks the 25th anniversary of the case, which began on Oct. 4,
1984 when Annette and Todd were originally reported missing. Shortly after
their disappearance, local law enforcement personnel discovered that
Annette and Todd had been shot to death, with their heads, arms and legs
severed postmortem. Their sexual organs were mutilated and their nude
torsos were tossed in the Hocking River. Their severed body parts were
scattered throughout a cornfield north of Homer Street in West Logan,
buried in several shallow holes.

Johnston was named the main suspect early on and was indicted on both
counts of murder on Sept. 29, 1983. Law enforcement officials discovered
incriminating evidence that summer after executing at least three search
warrants at the Johnston family's farm and house trailer. In Johnston's
testimony about their disappearance, he admitted to having sexual contact
with his stepdaughter, which supported the prosecution's belief that he
was jealous of Annette's relationship with Todd.

Within a week of the verdict, Johnston's defense team filed a motion for a
new trial. 2 months later, his death sentence was handed down and he was
scheduled to be served in Ohio's electric chair at 10 a.m., Oct. 4, 1984.

Johnston was granted a stay of execution that summer, however, when the
defense filed a notice of appeal and substantiated their request for a new
trial with, "newly discovered evidence," that included testimonies naming
a new suspect and suggestions of a satanic cult's involvement. The
original 3-judge panel that heard the case in Hocking County denied
Johnston a new trial on Oct. 25, 1984, but on Aug. 7, the Fourth District
Court of Appeals ordered him a new trial. The court's decision was
partially based on 1 witnesses who testified under hypnosis.

Hocking County Prosecutor at the time, Chris Veidt, fought the appellate
court's ruling at the Ohio Supreme Court level, but in October of 1988,
the court ruled that Johnston deserved a new trial. In December he was
removed from death row at the Southern Ohio Correctional Facility in
Lucasville, where he had been since his conviction. The charges were
eventually dropped, and Johnston was released in May of 1990.

Johnston now lives near Columbus with his wife Roberta, and speaks about
the death penalty whenever possible as a member of "Witness to Innocence,"
(www.witnesstoinnocence.org). According to its Web site, the group is
spearheaded by former death row prisoners who have been released and are
now "actively engaged in the struggle to end the death penalty."

Johnston said his speeches deal with a variety of topics, but that they
all deal with the death penalty in one way or another.

"In some ways I deal with the overall view of why I oppose the death
penalty and the reason it is no longer necessary, but (it) may have been
at one time," he said during a phone interview Tuesday afternoon. "I will
speak sometimes on the fact that there are over 123 of us across the
country that were wrongly convicted spending many years on death row,
waiting to die for something we didn't do. The fact that it wasn't the
system that got us out - the fact that we had attorneys that made systems
work against all obstacles that the state had thrown against us. If it
were up to the state, most of us would be dead by now."

During his "Witness to Innocence" talks, Johnston also expresses the
opinion that the death penalty is very unevenly applied, not only across
the nation, but in Ohio. "We have some counties that have not and will not
have the death sentence given," he said. "We have others, like Hamilton
County and Cuyahoga County who have had many death sentences given. It
doesn't necessarily depend upon the crime you committed but where you
committed it."

Johnston also thinks that making plea bargains with prosecutors, in order
to dodge the death penalty and accept life in prison, is a trend
threatening the fairness of the state's legal system. He does, however,
consider "life in prison without parole" as the optimal replacement for
the electric chair, citing the inability to correct wrongful convictions
as the biggest problem with the death penalty.

"For years I had an idea of who I consider one of the smartest men in the
world. I couldn't tell you his name off the top of my head, but back in
the 1800s, one fellow came up with material that would take lead marks off
of paper," he began. "A little while later, a guy came along and realized
he could do the same thing with rubber. A 3rd guy came along and put the
finishing touches on and realized you could attach that rubber to the end
of a pencil," he said. "I consider him the smartest person, because he
knew that men and women make mistakes and that those mistakes need to be
corrected. There is no eraser when you execute someone. The only eraser we
have today is to eliminate the death penalty and replace it with life in
prison without parole for anybody convicted of a capital offense."

Because he was never found innocent, it is still possible to prosecute
Johnston for the same charges. Charles Gerken, who was elected as Hocking
County Prosecutor after Veidt, dropped the case when Johnston was set free
in 1990. His case was weakened when Franklin County Common Pleas Judge
William T. Gillie ruled to suppress the admission of certain evidence,
including a vest and boots taken from Johnston at the Logan police
station. Evidence taken from Johnston's home was also suppressed, on the
grounds that it had been seized improperly by Logan police during a search
at his residence on Oct. 21, 1982.

(source: The Logan Daily News)

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

Ohioans demand 'No death penalty!'


Rallying at the Statehouse here on Sept. 26, people from all corners of
Ohio chanted, "No death penalty!"

Their message was aimed at Ohio's legislators and Gov. Ted Strickland.
Ohio has been 2nd to Texas in the number of executions performed from 2004
to 2006. The rally followed a morning of prayer vigils and teach-ins.

Large numbers of high school students attended the rally. They heard
powerful messages from a man whose parents were murdered, a woman with a
family member on death row, a former death row prisoner who was later
exonerated, and leaders from many religions.

The keynote speaker was Sam Milsap, a former Texas prosecutor who had
prosecuted Ruben Cantu. Decisive evidence of Cantus innocence came to
lightbut only after he had already been executed. Milsap became an
activist against the death penalty.

The rally supported the findings of an American Bar Association (ABA)
study, released on Sept. 24, criticizing the fairness and accuracy of
Ohio's death penalty system. The ABA called for a halt to executions due
to serious flaws in Ohio's system, such as racial imbalances. The report
also found fault with how defense-related evidence including DNA has been
preserved, the failure to make prosecutors give over documents that are
helpful to the defense, and the lack of defense access to public records.
In Ohio, defense attorneys have less access to public records than
reporters.

The ABA also criticized the use of the death penalty on prisoners with
mental illness. Of 93 criteria for fairness and accuracy, Ohio met only 4.

Sister Alice Gerdeman, president of Ohioans to Stop Executions, declared,
"Ohioans have lost confidence in Ohio's death penalty and are here today
calling on our state leaders to halt executions and examine these
problems."

On Sept. 25, the U.S. Supreme Court agreed to hear a Kentucky case on
lethal injection, challenging its constitutionality based on Eighth
Amendment protections against cruel and unusual punishment.

Many hoped there might be a change in Ohio's death machine when Gov.
Strickland, a Democrat, was elected in 2006. Due to a class action lawsuit
by prisoners challenging whether lethal injection is cruel and unusual
punishment and a stay of execution, there have been only 2 executions in
Ohio in 2007. The 2nd one was the botched execution of Christopher Newton
in May, which took 113 minutes.

So far, Gov. Strickland is being noncommittal. He stated, "I'm not
changing anything that I've done in the past at this point but I certainly
will read the report, commissioned by the bar association, and follow the
proceedings of the U.S. Supreme Court." Activists have pledged to keep the
heat on Gov. Strickland and their state legislators in the coming months
as the tide turns against the death penalty.

The death penalty is just one aspect of the racist, anti-working class
injustice system that keeps 2 million people behind bars, a huge number of
them youth of color, and is now being challenged from Jena, La., to Ohio.

(source: Workers World)






USA:

Death penalty must be ended


The death penalty must be stopped in this country, and until we do, the
U.S. has no right to criticize other countries on what they do to their
citizens.

Over 100 people have been removed from death row in this country since
1976, when the United States Supreme Court put the death penalty back in
the U.S., when these people were proven innocent of the crimes that put
them there.

The most famous person to be put to death by the death penalty and who was
innocent was, of course, Jesus Christ.

When the United States stops killing people by the death penalty, this
country will be a much greater country.

WILLIAM F. SMALL

Williston

(source: Letter to the Editor, Rutland (Vermont) Herald)

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

Death penalty makes sense, if we don't kill killers then who will?


Yes, we get it, OK. You don't like the fact that we're killing convicted
murderers for the vile crimes they've committed. Can you give me another
reason other than the argument that it's not the only solution?

Let me try to view this in your eyes. From what you tell me,
"murder-for-murder" doesn't solve anything.

Well, it solves the fact that there's one less murderer in the world. Ever
think about that? What is it exactly you're suggesting? That we keep these
criminals in the prison until they rot away? Every day, more and more
people are sent to jail for various crimes ranging from fraud to, I don't
know let me think here, murder. It's a giant landfill for people.

We have trash, and instead of dealing with that trash, we decide to
disregard it and put it somewhere. The first few times it's OK. The
garbage is out of the way, not dirtying our streets or stabbing us in the
heart while we're sleeping. After a while, those landfills start to rival
our buildings, in size and in numbers. And even though the garbage is out
of the way, we can still smell it. The garbage sits there, waiting for
someone to come by and pull out a can at the bottom of the pile, thus
causing a chain reaction that releases the garbage in a disgusting tidal
wave of debauchery, decadence and dissolution over our city streets.

Some people want to stop that tidal wave. So what do they do? They decide
they're going to burn the trash. They don't like the fact that they're
paying for the garbage to sit there protected, not suffering for the ugly
welt it left on society. Others agree, and right when word is published
that a solution has been met, here come the bleeding hearts, fighting the
rights of garbage. I'm going to repeat that, because it bears repeating.
You're fighting for the rights of garbage. Something nobody wants in this
society anymore. Something that most people agree would be better off not
here.

Yet you still find reason in your thought process that, and I'm getting
off the metaphor now, that somebody who killed, sorry, intentionally
killed another human being deserves to live. It makes no sense to me. I
can't grasp any logic around letting these people live, yet you make
picket lines, drape signs over your necks and hand out pamphlets to other
people. You can't keep putting the people in jail forever. Eventually
you'll run out of room and next thing you know you'll see your old high
school being converted into a detention center. Plus let's take into
consideration those inmates who want to die for the heinous crimes they've
committed.

Who are you people who protest these death row inmates who want to die?
The word nosy comes to mind. "It's inhumane. It's inhumane." Yeah, because
he was real human, lots of humans keep a freezer full of heads.

You all are so self-righteous out there on the picket line. You're missing
the point here: He wants to die, state wants him dead, families want him
dead, but YOU want him to live. Fine, he can live . . . with you. And when
he's done drinking soup out of your skull, dabbing his mouth with your
peace pamphlet, we'll come by, put a bullet in his head and the world will
have 2 less psychos to deal with.

(source: Adam Bowman, Flyer News Volume 55, Number 9 (University of
Dayton)

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

Let each state decide on capital punishment


Since capital punishment was reintroduced in Texas, Comal County juries
have sent just 2 people to the death chamber. One of those decisions was
for a crime committed here; the other an out-of-county case moved on a
change of venue motion.

Although the issue of capital punishment has risen here infrequently, it's
still an emotive issue. And since a Supreme Court decision is being waited
on for a Kentucky case on whether lethal injection is a cruel and unusual
punishment, 2 Texas scheduled executions have been postponed.

Gov. Rick Perry has yet to comment on whether Texas should call a
moratorium on executions until the Supreme Court rules on the Kentucky
case. Meanwhile 3 executions are scheduled in the coming months and a
couple of hundred inmates are waiting on death row.

The issue of capital punishment clearly is a state's rights issue. Each
state is responsible for delivering its own policy on how crimes of
homicide are punished. In Texas, the death penalty has seen 25 men
executed this year alone - punished for heinous crimes of murder or for
committing another crime that led to a murder.

Is lethal injection a cruel punishment? It's not instant death but it
delivers death quickly.

What must be considered is whether the intention of the execution process
is to kill or to torture. As long as the intention is not to torture, then
lethal injection is an appropriate method. It does not inflict the pain
that electric shocks designed to kill surely inflicted. It is not the
firing squad execution other countries have used - fewer than 2 decades
ago, Romanian president Nicolae Ceausescu and his wife were killed this
way. Surely it is less painful, too, than hanging - the method used to
execute Saddam Hussein a year ago.

Those who are sentenced to death in Texas courts have been found guilty of
a crime that in almost all cases inflicted great pain on their victims.
The death penalty is a punishment legal under U.S. and Texas law and
lethal injection has been arrived at after centuries of employing
different methods as an effective process.

(source: Editorial, Herald-Zeitung)

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

Doctors in the Death Chamber: Where Ethics and the State Collide


[JURIST Special Guest Columnist and British human and medical rights
activist Dr. David Nicholl, a neurologist at Queen Elizabeth Hospital,
Birmingham, says that the ethical dilemma posed by the continuing
involvement of the medical profession in state executions should be
resolved by changing the law and eliminating the death penalty once and
for all.]

Doctors have been central participants in the death penalty since the time
of Dr. Joseph Guillotin and the French Revolution. Dr. Guillotin (the "e"
was added in error later by others) was against the death penalty but
proposed the use of a mechanical decapitation machine in 1789. In his
view, this would enable a more private humane execution that itself would
be an interim step to banning the death penalty completely. In 1890, with
the development of the electric chair, Dr. Alfred Southwick, the head of
the commission which recommended its use, was reported as saying we live
in a higher civilization from this day. The electric chair itself fell out
of favor after evidence that the electrical flow frequently arced, cooking
flesh and sometimes igniting prisoners.

Over 200 years later, a new report from Amnesty International clearly
shows how the death penalty is still reliant on the involvement of the
medical profession, in breach of clear ethical guidelines to the contrary.
A founding principle of medicine has always been "first do no harm."

The guillotine may no longer be in use, but doctors were crucial in the
most recent method of execution, lethal injection. In 1977, Dr. Stanley
Deutsch, a professor of anaesthetics, responded to the State of Oklahomas
request and suggested the method of lethal injection which is now used in
all 38 death penalty states in the US and is rapidly increasing in use
elsewhere, such as China. Lethal injection consists of a cocktail of
drugs, essentially a fast-acting anaesthetic, a muscle-paralysing agent
and a cardiotoxin and this is now the method of choice in virtually all US
executions. There is no clear medical reason for the use of the
muscle-paralysing agent, Pancuronium, as there is the very real
possibility of a prisoner who is paralysed but only partially
anaesthetized will experience intense pain with the cardiotoxin, Potassium
Chloride. However, for death penalty proponents, clearly it would be
disturbing to see a prisoner writhing in pain, so the use of Pancuronium
would be a politically astute move. It is interesting to note how even the
US veterinary association regard the use of Pancuronium unacceptable in
the euthanasia of domestic pets. Todays report clearly shows a number of
cases where executions have been botched with prolonged deaths, skins
burns and convulsions.

Why do doctors involve themselves in the death penalty, when every medical
association that has studied the matter, has so conclusively opposed the
involvement of healthcare workers in the death penalty? Often there is
ignorance of ethical guidelines amongst members of the medical community.
In 2001, a survey of 413 American Medical Association members revealed
that 41% were willing to undertake at least one of the activities
prohibited by AMA guidelines, and only 3% knew of any guidelines covering
their involvement in executions. Even in countries which do not have the
death penalty such as Denmark, there are medical death penalty proponents.
In a survey of 591 Danish doctors in 1989, although 80% opposed capital
punishment, 13% considered it acceptable and 3% would be prepared to
directly assist with executions themselves. Last year, the New England
Journal of Medicine interviewed 4 doctors and a nurse who had participated
in executions. Some believed that what was being carried out reflected the
law, and others that prisoners had a right to competent treatment even as
their life was being brought to an end. One of the doctors who had been
involved in executions stated "A lot of society thinks these people should
not get any care at all, but thirteen jurors, citizens of the state, have
made a decision. And if I live in that state and thats the law, then I
would see it as being an obligation to be available." Another doctor
involved, Dr. Carlo Musso, who had participated in 6 executions in Georgia
spoke openly. Like Dr. Guillotin before him, Dr. Musso stated he was
against the death penalty but felt that it just seemed "wrong for us to
walk away to abdicate our responsibility to our patients. The way I saw
it, this is an end-of-life issue, just as with any other terminal
disease." Therein lies the dilemma: it is clearly ethically wrong to
torture inmates to death with unskilled execution personnel, but also
ethically wrong to bring skilled personnel into the execution process. The
New England Journal of Medicine concluded that "Medicine is being made an
instrument of punishment. The hand of comfort that more gently places the
IV, more carefully times the bolus of potassium, is also the hand of
death. We cannot escape this truth."

Yet no health professional has been disciplined with respect to ethical
abuses in relation to the death penalty - although in part this is due to
the secretive nature of the executions, actively supported by the State
which invariably protects their identity.

Just as medics have been instrumental in the implementation of the death
penalty, they have been crucial in its recent demise - with direct legal
challenges in California, North Carolina, Tennessee and the US Supreme
Court largely centering around medical ethical concerns and also whether
lethal injection is unconstitutional as a "cruel and unusual punishment."
Last year, a court in California specifically stipulated that an
anaesthetist should personally supervise the execution by lethal injection
of the murderer Michael Morales. Despite widespread protestations from the
medical establishment, two willing anaesthetists were found within 2 days,
yet neither was prepared, even under anonymity, to submit to the courts
stipulation that they personally perform the injection. These ongoing
ethical concerns have brought the death penalty to a standstill in
California since February 2006.

Perhaps when law and ethics collide, it is the law which should change. It
is time to fulfill Dr. Guillotin and Dr. Mussos wishes by resolving this
ethical dilemma, and ending the death penalty once and for all.

(source: The Jurist; Dr David Nicholl, MBChB FRCP PhD is a consultant
neurologist and honorary senior lecturer at City Hospital Hospital & Queen
Elizabeth Hospital, Birmingham and the University of Birmingham, England.
He grew up in Belfast, Northern Ireland and has been active as a human
rights activist on Guantanamo and as a supporter of Amnesty International
and Reprieve.

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

Can lethal injection ever meet that constitutional standard?


Lethal injection was supposed to be the humane, enlightened way to execute
inmates and avoid the pain and the gruesome spectacle of firing squads,
the electric chair and the noose.

But now it, too, is under legal attack as cruel and unusual, with the U.S.
Supreme Court agreeing to hear arguments that lethal injection can cause
excruciating pain.

Some supporters of the procedure say the notion that inmates suffer is
unproven. And they argue that there is nothing wrong with lethal injection
itself; instead, they say, the problem is inadequately trained
executioners. The man who developed the procedure 30 years ago said it is
similar to the simple injections given every day in hospitals.

"What causes it to go wrong is that the protocols aren't carried out
properly," said Dr. A. Jay Chapman, former Oklahoma medical examiner.

If an execution is about as simple as an ordinary injection, what, then,
can go wrong? In the three-drug process used by most of the 38 states that
practice lethal injection, sodium pentothal is given first as an
anesthetic and is supposed to leave the inmate unconscious and unable to
feel pain. It is followed by pancuronium bromide, which paralyzes the
inmate's muscles, and then potassium chloride, which stops the heart.

Foes of capital punishment argue that if the inmate is not properly
anesthetized, he could suffer extreme pain without being able to cry out.
That could happen in a number of ways: The executioner could inaccurately
calculate the dosage needed for an inmate of a given body weight. Or the
executioner could fail to administer the full amount, mix the drug
improperly, or wait too long between giving the anesthesia and the lethal
substance.

In Missouri, a doctor who participated in dozens of executions was quoted
recently as saying he was dyslexic and occasionally altered the amounts of
anesthetic given.

A botched execution in Florida last year illustrated another way a lethal
injection could go awry: Angel Nieves Diaz needed a rare second dose of
chemicals - and the execution took a half-hour, twice as long as normal -
after the needles were mistakenly pushed clear through his veins and into
the flesh of his arm. That left chemical burns in his arm that opponents
say probably caused him extreme pain.

During the process, Diaz appeared to grimace. But he did not specifically
say he was suffering. And a state panel was unable to determine if Diaz
had been properly sedated or if he felt pain.

There is no direct proof that inmates have suffered while undergoing
lethal injection. After all, they don't live to tell about the experience.

But opponents of lethal injection often cite a 2005 study in the British
medical journal the Lancet indicating that the anesthetic can wear off
before an inmate dies. The study involved 49 U.S. executions. In 21 of the
deaths, the study found, inmates were probably conscious when they
received the final drug that stops the heart.

Chapman said that he has not seen definitive proof inmates suffer, and
that, in any case, the pain would be small.

"Who's to say exactly how much pain that an individual - of varying,
different persuasions - can experience with the injection of potassium
chloride? But I don't think that in any sense of the word it can be
described as excruciating," he said.

One major issue is how to measure the inmate's level of consciousness
after the anesthetic is given. Execution opponents say they believe North
Carolina is the only state using a device common in operating rooms to
measure brain activity. The state Corrections Department anesthetizes the
inmates and waits for their brain activity to dip to a level indicating
they are sedated.

"It's worked well for us as a tool" in the 2 executions in which it has
been used, department spokesman Keith Acree said of the monitor.

Fordham Law School professor Deborah Denno, who frequently testifies about
capital punishment, said the problems she sees with executions cannot be
easily fixed with technology.

"You need to get better people, get better drugs and have more scrutiny of
the process," Denno said.

Similarly, Richard Dieter, executive director of the Washington-based
Death Penalty Information Center, which opposes executions, said that
lethal injection is essentially "a medical procedure being performed by
non-medical persons. These are drugs and procedures borrowed from
operating rooms."

But many states find it hard to get doctors to take part because the
American Medical Association's code of ethics bars members from
participating in executions.

Chapman scoffed at the idea that executioners need to go to medical school
to do the job right, saying people could easily be trained. And he
suggested that switching to other drugs would not make any difference.

"The new drugs are simply just replays of the old ones," he said.

Denno said states have been hesitant to look at alternative chemicals,
because they like to be able to argue that all the other states are using
the same mixtures. "There is safety in numbers," she said.

At least a dozen states that use lethal injection have executions on hold
because of legal challenges to the procedure. The Supreme Court stepped
into the debate late last month when it agreed to hear a case from 2
inmates on death row in Kentucky - Ralph Baze and Thomas Clyde Bowling Jr.
- who claim that lethal injection as practiced by the state amounts to
cruel and unusual punishment, in violation of the Eighth Amendment.

Denno said she hopes the high court will provide direction to states on
what changes are needed to ensure the process is constitutional.

"The best that could happen is that they come up with a standard and have
states follow that," she said.

(source: Associated Press writer Ron Word has covered more than 50
executions in Florida, including those using the electric chair and lethal
injection)

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

War-Crimes Prosecutor Quits in Pentagon Clash


In the latest disruption of the Bush administration's plan to try
detainees at Guantnamo Bay, Cuba, for war crimes, the chief military
prosecutor on the project stepped down yesterday after a dispute with a
Pentagon official.

It was not clear what effect the departure would have on the
problem-plagued effort to charge and try detainees.

The prosecutor, Col. Morris D. Davis of the Air Force, was to leave his
position immediately, a Defense Department spokeswoman said. But the
spokeswoman, Cynthia O. Smith, said officials were working to minimize
interruption in the work of the prosecution office, which includes
military lawyers supplemented by civilian federal prosecutors.

"The department is taking measures to ensure a prompt and orderly
transition to another chief prosecutor without interrupting the key
mission of prosecuting war crimes via military commissions," Ms. Smith
said.

The Wall Street Journal reported yesterday that Colonel Davis would
resign.

The Pentagon's system of prosecuting suspects has been beset by practical
problems and legal disputes that have reached the Supreme Court. As a
result, more than 5 years after the first terror suspects arrived at
Guantnamo Bay, only 1 detainee's war-crimes case has been completed, and
that was through a plea agreement.

Prosecutors have said they might eventually file charges against as many
as 80 of the 330 detainees being held at Guantnamo. Those include
so-called high value detainees, 14 men the administration has said include
dangerous terrorists who had previously been held in secret C.I.A.
prisons.

Officials have said the prosecutors are working on charges against some of
those men, including Khalid Shaikh Mohammed, who has said he was the
mastermind of the terrorist attacks of Sept. 11, 2001.

Colonel Davis, a career military lawyer, had been in a bitter dispute with
Brig. Gen. Thomas W. Hartmann, who was appointed this summer to a top post
in the Pentagon Office of Military Commissions, which supervises the war
crimes trial system.

General Hartmann, an Air Force reserve officer who worked as a corporate
lawyer until recently, was appointed this summer as the legal adviser to
Susan J. Crawford, a former military appeals judge who is the convening
authority, a military official who has extensive powers under the military
commission law passed by Congress in 2006.

Among other powers, under the law, the convening authority can approve or
reject war-crimes charges, make plea deals with detainees and reduce
sentences.

People involved in the prosecutions, who spoke on condition of anonymity,
have said that General Hartmann challenged Colonel Davis's authority in
August and pressed the prosecutors who worked for Colonel Davis to produce
new charges against detainees quickly.

They said he also pushed the prosecutors to frame cases with bold
terrorism accusations that would draw public attention to the military
commission process, which has been one of the central legal strategies of
the Bush administration. In some cases the prosecutors are expected to
seek the death penalty.

Through a spokeswoman, General Hartmann declined comment yesterday.

Colonel Davis filed a complaint against General Hartmann with Pentagon
officials this fall saying that the general had exceeded his authority and
created a conflict of interest by asserting control over the prosecutor's
office. Colonel Davis said it would be improper for General Hartmann to
assess the adequacy of cases filed by prosecutors if the general had been
involved in the decision to file those cases.

In a statement last week, Colonel Davis said the issue posed a threat to
the integrity of the war-crimes process. "For the greater good, Brigadier
General Hartmann and I should both resign and walk away or higher
authority should relieve us of our duties," the statement said.

A military official said yesterday that Pentagon officials had sided with
General Hartmann in the dispute.

Yesterday, Colonel Davis said he could not discuss the developments. "I'm
under direct orders, he said, "not to comment with the media about the
reasons for my resignation or military commissions."

Gregory S. McNeal, an assistant professor at the Dickinson School of Law
at Pennsylvania State University, said the effort to begin war-crimes
trials would probably continue. But Mr. McNeal, who has been a consultant
to the military prosecutors, said the questions Colonel Davis raised would
be exploited by defense lawyers.

"The last thing the prosecution needs is officials influencing the
prosecutions," he said.

Critics of the administration have argued that the effort to design a
military commission system for foreign terror suspects is intended to
circumvent the legal protections that detainees would receive if they were
charged in civilian courts. Some of those critics said yesterday that the
dispute underscored their concerns.

"This is further evidence that the military commission process is
completely unraveling," said J. Wells Dixon, a detainees' lawyer at the
Center for Constitutional Rights in New York.

"That is endemic," Mr. Dixon added, "to any system that is made up as you
go along."

(source: New York Times)

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

On the Horizon: More Powers for Some Federal Judges?


The U.S. Congress is in the midst of considering a proposed piece of
legislation known as the Court Security Improvement Act of 2007. The act
consists of five titles, the first four of which actually pertain to
improving court security. The fifth and final title of the act, however,
consists of "Miscellaneous Provisions," and here's where things begin to
get interesting.

For example, Section 505 of the act would officially reduce the number of
active judges authorized to serve on the D.C. Circuit from 12 to 11. In
exchange, one active judgeship would be added to the 9th Circuit,
increasing the number of active judges on the nation's largest federal
appellate court to 29.

For appellate court watchers like myself, the most interesting and
potentially controversial portion of the proposed legislation is found in
Section 503. That aspect of the act would amend federal law to provide
that "a judge who has retired from regular active service under section
371(b) of this title, when designated and assigned to the court to which
such judge was appointed, shall have all the powers of a judge of that
court, including participation in appointment of court officers and
magistrate judges, rulemaking, governance, and administrative matters."

Although it is commonplace for judges who have retired from regular active
service to continue to work as semi-retired senior judges on the very same
court to which they were originally appointed, Section 503, if it were to
become law, would create immediate uncertainty concerning senior judges'
ability to vote on whether to rehear cases en banc. Under current law,
only federal appellate judges in regular active service have that
important power, which is the only method by which a federal appellate
court may overturn its own precedent in the absence of any change from the
governing court of last resort.

Under current law, if a senior judge was on the original 3-judge panel
that decided the case that is to be reheard en banc, the senior judge may
participate in deciding the case on rehearing even though only active
judges were entitled to vote on whether to grant rehearing. However, if
Section 503 becomes law, there would be an additional uncertainty as to
whether senior judges can participate in deciding on the merits the cases
in which en banc review had been granted, even if they were not on the
original 3-judge panel that had originally decided the case.

As a policy matter, I have not heard much dissatisfaction expressed over
the current process, which gives only those federal appellate judges who
are in regular active service a vote on whether to take a case en banc,
and which guarantees to only the active judges participation in all en
banc decisions. It is possible, however, that a major reason why federal
appellate judges choose to remain in regular active service, even after
satisfying the tenure-based criteria for retiring on senior status, is
that those judges do not want to lose out on their ability to vote on en
banc matters.

I can see arguments both for and against giving semi-retired federal
appellate judges the ability to vote on whether to take cases en banc and
on how to resolve en banc cases on the merits. It's unfortunate that a
provision that may accomplish this result is hidden within legislation
that is supposedly devoted to security for judges, causing the provision
to escape adequate scrutiny.

It would be easy enough to amend Section 503 to clarify that the act is
not intended to alter the current law on federal appellate judges' powers
to decide whether to take a case en banc and to resolve en banc cases on
their merits. Such an amendment should occur before the Court Security
Improvement Act of 2007 becomes law, to ensure that the current procedures
continue to govern. (source: Law.com - Howard J. Bashman operates his own
appellate litigation boutique in Willow Grove, Pa., a suburb of
Philadelphiaa)






MISSISSIPPI:

Death row inmate to file challenge to lethal injection----AG's office asks
high court to set execution date for Earl Wesley Berry


Death row inmate Earl Wesley Berry will file his own challenge to the
constitutionality of lethal injections, his attorneys say.

Berry's appeals have run out, and the state attorney general's office
asked the state Supreme Court this week to set an execution date for him
by Oct. 31. He was sentenced in Chickasaw County in October 1988 for the
Nov. 19, 1987, murder of Mary Bounds of Houston.

Bounds was beaten to death after leaving her weekly church choir practice.

Berry was convicted of murdering her during a kidnapping.

But attorney Robert Ryan of the Mississippi Office of Capital
Post-Conviction Counsel argued in a response motion to the state Supreme
Court that no execution date should be set and a stay should be
maintained.

Ryan said it is premature for the state to set his execution date and that
all further legal proceedings should be stayed until the U.S. Supreme
Court decides the issue of the legality of lethal injection.

"The fact that the Supreme Court of the United States has granted a writ
of certiorari (petition) to consider the constitutionality of a lethal
injection procedure that, by the attorney general's admission, is similar
to the procedure used in Mississippi, demonstrates beyond any doubt that
the petition has satisfied the threshold showing for maintaining a stay,"
Ryan said.

The U.S. Supreme Court has agreed to review a Kentucky case to determine
if lethal injection is cruel and inhumane treatment.

Oral arguments tentatively have been scheduled for Jan. 7 on Kentucky's
convicted double murderers Ralph Baze and Thomas Clyde Bowling Jr.

Baze, 52, was scheduled to be executed Sept. 25, and Bowling, 54, was
scheduled to be executed in November 2004, but both executions were halted
because of the pending legal challenge. Baze and Bowling have argued the
drugs used to make the lethal cocktail - an anesthetic, a muscle paralyzer
and a substance to stop the heart - could cause pain but the inmate could
not alert anyone because of the paralyzer.

Baze was convicted of the 1992 fatal shooting of Powell County Sheriff
Steve Bennett and Deputy Arthur Briscoe. Bowling was convicted of killing
Tina and Edward Earley outside their Lexington, Ky., dry-cleaning business
in 1990. Bowling also shot the couple's then-2-year-old son, Chris, who
survived.

Most states, including Mississippi, use lethal injection to carry out
executions.

Ryan said a key question is, "Does the continued use of sodium thiopental,
pancuronium bromide and potassium chloride, individually or together,
violate the cruel and unusual punishment clause of the Eighth Amendment
because lethal injections can be carried out by using other chemicals that
pose less risk of pain and suffering?"

Assistant Attorney General Marvin White Jr., the state's death penalty
expert, said the state Supreme Court has upheld the use of lethal
injection as a constitutional method of execution.

White has said no reason exists for the state high court to stay Berry's
execution. He said if the U.S. Supreme Court sees fit to grant a stay, it
is a matter for that court.

Former Mississippi State Penitentiary Warden Don Cabana, who has overseen
executions, said he expects requests across the country to stay executions
until the high court rules.

"I believe the United States Supreme Court will speak to the issue,"
Cabana said of whether executions should be stayed.

If stays are granted, it could be a year before the U.S. Supreme Court
makes a decision, Cabana said.

(source: Clarion Ledger)






GEORGIA----impending execution

State says Alderman not due stay


Nothing justifies a stay of execution for condemned murderer Jack Edward
Alderman in the 33-year-old slaying of his wife, prosecutors argued
Friday.

Alderman's lawyers have "clearly failed" to find reasons for a stay, Chief
Assistant District Attorney David Lock stated in court documents.

The prosecution was responding to a request for a stay filed only hours
earlier Friday by Alderman's attorneys, who argue the state's use of
lethal injection constitutes cruel and unusual punishment.

No ruling from Chatham County Superior Court Judge Michael Karpf is
anticipated until at least next week.

Alderman, now 56, is scheduled to die at 7 p.m. Oct. 19 at the Georgia
Diagnostic and Classification Prison in Jackson.

His death sentence resulted from a Chatham County Superior Court jury's
recommendation on April 1, 1984, in the murder of Alderman's wife, Barbara
Jean Alderman.

She was slain Sept. 21, 1974, in the couple's Chatham City apartment.

The U.S. Supreme Court on Monday rejected a review of Alderman's case.
Lock also argued a federal judge in Atlanta has said he is unlikely to
grant a stay in a civil rights suit filed by Alderman challenging use of
lethal injection.

Alderman's lawyers, including Savannah attorney G. Terry Jackson, argued
the pending civil suit should be a reason to stay the execution.

Alderman's motion, carrying an "urgent - capital case execution scheduled"
caption, was the 1st step in a last-stage attempt to halt the execution.

Lawyers argue the three-drug cocktail execution process used in Georgia
"creates an unnecessary risk that Mr. Alderman will be fully conscious and
in agonizing pain for the duration of the execution process."

And, they said, the U.S. Supreme Court this week said it will consider a
challenge by 2 death-row inmates in Kentucky to the use of lethal
injection.

Those cases involved "a nearly identical method of execution" to
Georgia's, they argued.

Attorneys for death-row inmates are challenging lethal injection in the 37
states that use the process.

Since the Supreme Court's decision this week, it granted a stay in a Texas
death row case, the motion states.

Alabama's governor, joined by 10 other states, also halted an imminent
execution for the state to revise its lethal injection methods, the motion
argues.

Lock argues it's significant the court did not direct that all executions
in states other than Kentucky be stayed.

Defense lawyers are expected to pursue additional avenues to delay the
execution, including an extraordinary motion for new trial.

Their last step would be to seek clemency from the state Board of Pardons
and Paroles.

Evidence in Alderman's two trials showed the defendant and co-defendant
John Arthur Brown beat Barbara Jean, 20, with a wrench, tried to strangle
her, then drowned her in a bathtub.

She then was taken to Dasher's Creek near Rincon and left in the trunk of
her partially submerged car.

Alderman's June 1975 death sentence was reversed, but a second jury
re-instated it. Brown, who also was convicted and sentenced to die in a
separate trial, subsequently had his sentence reduced to life and was
paroled.

9source: Savannah Now)

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

Time, cost of Nichols trial faulted


Prosecutor Al Dixon stood silently in Courtroom 8-H at the Fulton County
Courthouse and tried to come to terms with what had just happened.

A judge he admired, who wore cowboy boots under his black robe, was
slumped over dead behind the bench from a bullet to the head. Nearby, the
judge's court stenographer, known for bringing jurors homemade treats, lay
lifeless.

Outside the building, a sheriff's deputy lay fatally wounded on the
pavement. A female deputy, slammed by the gunman into a holding cell wall
like a rag doll, was fighting for her life.

After taking in the chaos of March 11, 2005, one thing was clear, Dixon
remembers thinking:

"This is a death penalty case. There's no question about it."

When the case comes to trial next week after 2 1/2 years and millions of
dollars in legal expenses, District Attorney Paul Howard will indeed seek
the death penalty against Brian Nichols, who is suspected of the rampage
in downtown Atlanta and the killing of a federal customs agent later that
night in Buckhead.

Many metro Atlanta residents question why it's taken so long and cost so
much. They also wonder why Howard has refused a plea deal to avoid a trial
altogether, even though Nichols' attorneys have said he would agree to a
life sentence without parole.

But Dixon is not at all surprised by the decisions made by his former
boss.

"Paul Howard was determined from the beginning and he's going to see it
through," Dixon said.

Others wonder if it is worth the price.

Atlanta native David Adams Jr. remembers being outraged by details of the
shooting spree.

Adams said he's upset about the more than $1.8 million already spent by
Nichols' attorneys, who say they need more money. Experts estimate
prosecutors and defense attorneys will spend at least $5 million.

"He deserves the death penalty, but at what cost?" asked Adams, who said
the district attorney should offer the life-without-parole plea.

Retired FBI Supervisory Special Agent Jeff Holmes was at his office at the
federal courthouse in downtown Atlanta when he heard a radio news report
of the shootings. He and other federal agents rushed to help.

Holmes said he understands residents' frustrations over the cost of the
case, but he feels prosecutors must seek a death sentence.

"Someone can't go out and kill law enforcement and court personnel without
the most severe consequences," he said. "This case is the kind of case the
death penalty is designed for."

Death sentence not definite

To many residents, this case seems like a slam dunk for prosecutors. The
courthouse killings couldn't have been more public.

Several people witnessed the shootings. A security camera in a parking
garage captured a man police say is Nichols leaving the Fulton County
Courthouse, and he reportedly gave accounts of the shootings to a hostage,
then to police during a 3-hour interview while a video camera rolled.

And, police say, Nichols gave hostage Ashley Smith property belonging to
some of the victims.

"I hear people all of the time asking why we can't just go ahead and
execute him," said Dixon, who is now a defense attorney. "But you can't do
that. He's entitled to a trial."

But a death sentence for Nichols is far from a foregone conclusion.

Howard has persuaded a jury to impose the death sentence only once in his
10-year tenure.

Mike Mears, a statewide death penalty expert who teaches law at John
Marshall Law School in Atlanta, pointed out that Fulton County has a
reputation for liberal residents not keen on imposing a death sentence. It
would only take one juror out of a dozen to spare Nichols' life.

So there's one thing defense attorneys and prosecutors seem to agree on:
Howard, who comes up for re-election next year, is in an unenviable
position.

"He has been criticized for not offering a plea that could save millions
of dollars," said veteran defense attorney Jerry Froelich.

Howard would also be faulted if he didn't seek a death sentence, Dixon
said of his former boss.

And Mears said residents, and voters, would take it out on Howard if the
costly trial doesn't land Nichols on death row.

"Paul Howard fully understands the box he's in now," said Mears.

Superior Court Judge Hilton Fuller is also in a tough position. Fuller, a
senior judge from DeKalb County, agreed to oversee the Nichols case after
all the Fulton County judges stepped back from the trial since one of
their own had been killed. Fuller's every step is being scrutinized.

Nichols is expected to become Georgia's most expensive defendant, with his
case likely topping $5 million for the prosecution and defense combined.
The trial also could become one of the longest death penalty cases in the
state's history, lasting up to seven months instead of the usual four to
six weeks.

'Out of control'

The judge and Standards Council assigned Nichols four attorneys.

The prosecution secured a 54-count indictment and has more than 300 people
on its witness list. That's the most of any death penalty case Mears, who
has written books on the death penalty in Georgia, is aware of in his
24-year career.

"This case got out of control early," Mears said of the indictment.

In turn, the defense is amassing its own army of witnesses, close to 100.

The number of subpoenaed jurors in the case is also extraordinary  1,100
from which a final dozen and 6 alternates will be selected.

More than 100 reporters are expected  including French media and
representatives from Court TV and The New York Times.

And, for the 1st time Mears can recall, the Georgia General Assembly has
gotten involved, recently passing a law that allows the state to pay for
only 2 lawyers in a capital case at a rate determined by the Georgia
Public Defender Standards Council, the agency that pays for the
representation of all poor and death penalty defendants.

Nichols' attorneys have publicly called this an attack on their attempts
to give Nichols adequate representation.

The council recently cut off funding for Nichols, which has caused the
trial to be postponed twice. The judge said Thursday he still intends to
bring in potential jurors on Oct. 15.

Alan Cook, a former prosecutor in Walton and Newton counties, blames
everyone involved for the spiraling costs.

"I think all the parties, the judge, prosecutors and defense team have not
done a particularly good job in narrowing the issues and focus and keeping
a lid on the cost," said Cook, director of University of Georgia at
Athens' Prosecutorial Clinic. "I think it could have done more
efficiently. The case could have been tried a year ago."

It's not unheard of for a death penalty case to take 2 or 3 years to go to
trial. But in the Nichols case, even many in the legal community expected
it to move more swiftly because the trial judge is retired and isn't
juggling any other cases.

Wilcox, the judge from Macon who has overseen 4 death penalty cases, said
the Nichols judge is moving cautiously to lessen the chances of being
reversed on appeal.

"There certainly hasn't been a rush to judgment, but it hasn't taken too
long either," Wilcox said.

Gamble with insanity

Nichols stood before a judge 2 months after the killings and pleaded not
guilty. A couple of courthouse workers gasped in disbelief.

But lawyers understood that Nichols had no incentive to make things easier
on prosecutors, who had the burden of proving each element of the 54-count
indictment that charges Nichols with attacking Fulton sheriff's deputy
Cynthia Hall, murdering the judge, court stenographer Julie Ann Brandau,
deputy Sgt. Hoyt Teasley and U.S. Customs Agent David Wilhelm, carjacking
a reporter, taking several hostages and pointing a gun at others.

Defense attorneys who handle death penalty cases are trained to fight
every step of the case, hunting for mistakes that could get evidence
tossed out or the conviction overturned on appeal.

"Why should Mr. Nichols give up his right to have a jury hear the evidence
without something in return from the prosecution?" death penalty expert
Mears asked.

Nichols' team is also gambling with an unusual and rarely successful
strategy: an insanity defense, claiming Nichols suffered from a delusional
compulsion he couldn't control.

Nichols had been arrested on a charge of breaking into his former
girlfriend's home, tying her up with duct tape and raping her at gunpoint.
The first jury couldn't agree on a verdict, so Judge Barnes declared a
mistrial. Nichols, who remained in jail unable to make bond, had to face a
new trial.

The day before the alleged rape, Nichols told his pastor of his struggle
with intense jealousy over his ex-girlfriend dating a minister at their
church: "There is a demon inside me ... and it's getting very powerful. I
don't know what I'm capable of doing," the pastor testified during the
rape trial.

By his second trial, prosecutors had strengthened their case and felt
they'd get a conviction. Police say that before the trial was over,
Nichols escaped from a courthouse holding cell and, instead of immediately
rushing from the building, took time to hunt down the trial judge.

Dixon, the former prosecutor, who has read Nichols' 3-hour statement to
police, said Nichols is smarter than your average criminal  not
delusional.

"I think he had convinced himself he had been treated unfairly," Dixon
said of Nichols' second rape trial. "It was more of a vendetta."

Jurors who will make the ultimate decision could be in place by January.

(source: Atlanta Journal-Constitution)