[Deathpenalty] death penalty news----LA., N.Y., VA., GA., CALIF., OHIO

[Rick Halperin]

Oct. 31


LOUISIANA:

The Screams of the Besieged----New Orleans' Broken Criminal Justice System


"We are faced with the daily reality of an imminent collapse of our
criminal justice institutions."---- New Orleans Police Chief Warren Riley


Some say crime causes a city to be under siege; others say crime is the
symptom of a city under siege. Either way, New Orleans is in serious
trouble. Our criminal justice system is in unprecedented crisis.

Thursday there were 4 murders in 24 hours in New Orleans. Over the weekend
three more people died from gunshots. So far this year, 170 people have
been murdered in New Orleans--a rate 7 times the national average.

The District Attorney of New Orleans just resigned at the insistence of
the Mayor, the Attorney General and several legislators. His office owes a
group of discharged employees a federal civil rights judgment of over $3
million--and neither the City nor State was willing to pay unless he
resigned. There is high turnover in the office and thousands of people
arrested have been released because the office could not timely decide
whether to charge them with crimes or not. His resignation will not make
New Orleans any safer.

Katrina severely damaged an already dysfunctional criminal justice in New
Orleans. In fact, what has occurred and is happening now in New Orleans is
really neither "justice" nor a "system

Before Katrina, New Orleans averaged 1000 violent crimes each quarter. In
the 2nd quarter of 2007, New Orleans reported over 1300 violent
crimes--despite the fact that not many more than half the people of New
Orleans are back.

Black on black crime continues to dominate. Of the 161 homicide victims in
2006, 131 were black men, along with most of the suspects. Many victims
and the suspects were teenagers. About 2/3 of the deaths of 2006 have gone
unsolved.

Police work out of trailers, including the brass. During the summer,
officers filled out paperwork in their cars because there was no working
air conditioning in their temporary trailer offices. Not until spring 2007
was there a working crime lab.

New Orleans has a post-Katrina police force over 80% as large as before
the storm--nearly 1/2 are new officers. At the end of 2006, 7 police
officers were indicted on murder charges--and then hailed as "heroes" by
many fellow officers as they reported to court. The police force is
supplemented by hundreds of National Guard members patrolling the city in
camouflaged humvees, and, on special occasions, members of the state
police as well.

The public defender system is starting to improve but remains unable to
represent all those facing charges. Recently, Orleans Criminal Court Judge
Arthur Hunter mailed over 450 letters to attorneys in New Orleans ordering
them to report to his courtroom to start defending poor defendants. Most
declined.

Jail is not the answer to our crime problems because Louisiana already
leads all 50 states in the percentage of our people in jail, and New
Orleans leads Louisiana. A report on those in the New Orleans jail show
that the majority are awaiting trial and many of those in jail could
easily be released. A third are in on bonds of $5000 or less--the only
reason they remain in jail is because of their poverty. Over 1/2 are only
facing minor charges and nearly 3/4 have no other outstanding warrants for
their arrest.

Addressing crime takes a functioning criminal justice system--and New
Orleans is working on that by increasing communication between the various
agencies and enacting some new programs. But, like the resignation of the
District Attorney, this is not likely to dramatically reduce crime.

Three recent reports help show the way for New Orleans to improve the
criminal system. They stress earlier and better communication between the
police and prosecutors; a wider range of pre-trial release options; and
greater use of alternatives to prison.

The August 2007 report of the Urban Institute, "Washed Away? Justice in
New Orleans," documents past and present challenges for criminal justice.
Available online at:
http://www.urban.org/UploadedPDF/411530_washed_away.pdf.

The VERA Institute of Justice report, "Proposals for New Orleans' Criminal
Justice System: Best Practices to Advance Public Safety and Justice" gives
4 concrete ways that the system can be improved in the short run. Their
report is available at: http://www.vera.org/publication_pdf/399_770.pdf

The community-based Safe Streets Strong Communities organization has put
out several recommendations about how New Orleans can fight crime without
criminalizing or alienating the people in the neighborhoods. See:
http://www.safestreetsnola.org

But even if all these changes are started, most leaders acknowledge what
Criminal Judge Calvin Johnson, who has presided in criminal court for
nearly 20 years, says over and over "We cannot arrest our way out of this
problem."

Crime is not an isolated action. It is impossible to fix the crime problem
if the rest of the institutions that people rely on remain deeply broken.

The head of the local FBI suggested to the Christian Science Monitor that
criminals in New Orleans "are products of an educational system that
didn't educate, a state judicial system that failed to mete out
consequences for criminal activity, and an economic landscape devoid of
meaningful jobs."

Katrina and its aftermath place enormous daily stresses on all people,
particularly those already disadvantaged by race, gender and class
systems. Treatment facilities report much more substance abuse, suicide
and domestic violence. Yet, the mental and physical health systems are
only a shell of what they were before the storm. Affordable housing is
scarce and families are separated. Public education is not working for the
poorest children. There is only so much the criminal justice system can
do.

The number of doctors and social workers and nurses who treat mental
health is down dramatically. Beds are down nearly 80%. Hospitals turn
troubled people away every day. Doctors report people who cannot be turned
away are chemically restrained on gurneys in the hall or kept in dimmed
emergency waiting rooms until they can be released. The system is backed
up around the state.

Even regular medical treatment is a challenge for uninsured and insured
both as many hospitals remain closed. Drug and substance abuse treatment
are scarce.

The extreme lack of affordable rental housing means many older family
members have not returned to New Orleans. Many teenagers have returned on
their own--living alone or with other relatives and friends.

Public education for those not in charter schools continues to be quite an
uphill battle for the children--often in highly policed public schools
that illustrate the school to prison pipeline.

Before Katrina, New Orleans had the highest per capita murder rate in the
nation a couple of times. The police arrested few people for violent
crimes and prosecutors and judges and juries convicted less. Police,
prosecutors and public defenders were overworked and underpaid--often
losing their most experienced people to the suburbs and other cities where
the work was calmer and the pay better.

After Katrina it is all worse. There is much more stress on the streets.
There is much less counseling and treatment available. There are fewer
extended families to provide a supportive environment. The police are less
experienced. The police do not communicate well with the prosecutors, who
do not work well with the victims and witnesses, while the judges feud
with the public defenders, and on and on.

After Katrina, there is even less of a system and certainly less justice
for everyone--the public, victims, the accused, law enforcement and people
working in the institutions. Only when the criminal justice system is
supported by a good public education available to all children, sufficient
affordable housing for families, accessible healthcare (especially mental
healthcare), and jobs that pay living wages, can the community expect the
crime rate to go down.

The District Attorney has resigned. But New Orleans and the Gulf Coast
remain in serious trouble on all fronts. Our criminal justice system is
but one illustration of our institutions melting down. For us, crime is
not the cause of our community being under siege; crime is the scream of
our community under siege.

(source: CounterPunch; Bill Quigley is a human rights lawyer and law
professor at Loyola University New Orleans)






NEW YORK:

On (the) death penalty in N.Y.


This page has always opposed the death penalty on the grounds that it
doesn't do anything to deter violent crime, as proponents claim. It does
occasionally result in the deaths of people convicted of the most serious
crimes, largely on a hit-or-miss basis.

But, at least often enough to trouble most people, death row inmates have
subsequently been proved to be innocent of the terrible crimes of which
they've been wrongfully convicted. Capital punishment also kills any
possibility of righting those wrongs. A life sentence without the
possibility of parole accomplishes the same goal of keeping dangerous
people off the streets.

That being said, if there is anyone in the New York State prison system
who deserves the death penalty, it is John Taylor, who was convicted for
his part in the horrendous massacre of seven people at a Wendy's in Queens
in 2000. The victims were bound, taken to a back room and shot execution
style, one by one.

Yet John Taylor, who has been on death row since his conviction, won't be
executed by the state and he was the last person on the state's "death
row."

The Court of Appeals again ruled on Tuesday that the state's death penalty
law is unconstitutional. Curiously enough, as written, the state's law
requires judges to instruct juries that if they don't unanimously impose
the death penalty, the convicted criminal in question may be eligible for
parole, even though serving a life sentence. Jurors might well be coerced
by this instruction into voting for the death penalty in order to
guarantee the criminal never walks free, the court said.

The same ruling has been applied with every death penalty case to go
before the court since 2004, when the 1st such determination of the death
penalty's statute was handed down. (In fact, not one person has been
executed in New York since Gov. George Pataki was elected in 1994 largely
on the promise of restoring capital punishment.)

Some people charge that this "poison pill" language was purposely inserted
in the law by capital punishment opponents to render it unconstitutional
so no one would ever be executed again in the state.

In any case, the only chance to save the death penalty in New York is for
the state Legislature to rewrite it and remove the coercive provision so
it passes constitutional muster.

In nearly 4 years, however, the Legislature has shown little interest in
undertaking the hard bargaining necessary to get death penalty legislation
that will pass both houses and be signed by the governor. That's just one
of many difficult issues, including a number that are far more pressing,
that the state's lawmakers haven't been able to bring themselves to
tackle.

In the case of capital punishment, however, the Legislature's inaction is
a good thing. The state government shouldn't be in the business of killing
anyone.

(source: Editorial, Staten Island Advance)






VIRGINIA:

Convicted of 2002 killings, Winston will appeal his case to federal court


The federal appeals process started this week for a man given 3 death
penalty sentences in the 2002 slaying of a Lynchburg couple at their
Sussex Street home.

Leon Jermain Winston, 27, had exhausted his state appeal process earlier
this year and had been scheduled to be put to death Aug. 1. In late July,
a federal judge issued a 90-day stay of execution that expired Tuesday,
giving Winston's lawyers a chance to file a habeas corpus petition in U.S.
District Court in Roanoke.

The petition, which contends that Winston is jailed illegally, was filed
Monday. He cannot be executed while the case is being heard.

Winston, of Fairfax County, was sentenced to death in January 2004 for the
April 2002 slaying of Anthony and Rhonda Robinson at their home in the 400
block of Sussex Street. Winston was also convicted of attempted robbery,
burglary and gun crimes for which he was sentenced to 73 years in prison.

In their petition, attorneys Jennifer Givens and Matthew Engle of the
Virginia Capital Representation Resource Center mostly reiterated claims
made in the state courts. Neither lawyer could be reached for comment
Tuesday.

They claim the eyewitness identification of Winston by the Robinson's then
8-year-old daughter shows that rather than shooting Rhonda Robinson,
Winston tried to stop the murder; that the jury was prejudiced by pleas
outside the courtroom made by victims' family members; that DNA testing
that linked him to the gun was flawed and that evidence about his troubled
childhood wasn't adequately presented.

They also repeat claims that Winston can't be executed because he was
judged to be mentally retarded as a child by Fairfax County Public Schools
specialists and that his earlier lawyers did not provide adequate
services.

Now, however, they say a key witness who testified at trial that Winston
admitted shooting Rhonda Robinson has made a sworn statement that he lied
in order to get out of trouble in his own criminal proceedings that were
pending at the time.

Nate Rorls originally testified that Winston called him from Lynchburg to
tell him about the slayings and that they discussed it at an apartment in
Northern Virginia afterward.

When he testified, Rorls was facing more than 20 years on drug charges. He
ultimately served less than 3 years.

In their petition, Givens and Engle claim Rorls told them he lied to have
his sentence reduced and that the confessions never happened.

Now U.S. District Court Samuel Wilson will consider the arguments as well
as pleas to set aside Winston's death sentence and to bar future
prosecution. In lieu of that, they've asked the judge to grant him a new
trial.

By the numbers, Winston has until roughly mid-May 2008 before he's
executed. According to federal Bureau of Justice Statistics, Virginia
defendants spend an average of 4.3 years on death row. Lynchburg
Commonwealth's Attorney Mike Doucette, who helped prosecute the initial
case, said longer delays are not out of the ordinary.

"It's not unusual and certainly we have let the victims' families know it
was going to be a long process," Doucette said.

He said defense lawyers often have a hard time persuading judges by
rehashing the issues by the time a case makes the federal habeas corpus
process, especially in arguing that trial lawyers didn't do a good job
defending their clients. Many of the other issues raised were handled at
trial, he added. Word that Rorls had sworn a statement that he lied at
trial, though, was news to Doucette on Tuesday, he said.

If the district court judge rules against Winston, his lawyers can appeal
to the Fourth Circuit Court of Appeals. From there, they can ask the full
appeals court to hear the case. The final appeal would be sent to the U.S.
Supreme Court, which earlier refused to hear the case after the state
process was exhausted.

No further hearings were scheduled as of Tuesday afternoon.

(source: The News Advance)

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

Va. high court hears claim of innocence in 1997 murder case


The state Supreme Court heard arguments Tuesday on whether to uphold the
murder conviction of a defendant in the 1997 rape and murder of a young
woman.

Derek E. Tice was 1 of 5 men convicted in the crimes against Michelle
Moore-Bosko, 18. Her husband, William, found her body in their Ocean View
apartment when he returned to Norfolk from a Navy deployment.

One man was convicted of rape. Tice and the 3 others were convicted of
murder and rape and sentenced to life terms. Now Tice is among 4 of the
defendants who say their confessions were coerced by police. One of the
men serving life sentences, Omar Ballard, was the only suspect whose DNA
matched crime scene evidence. Ballard now says he acted alone.

Last year, Norfolk Circuit Judge Everett A. Martin Jr. ruled that Tice had
ineffective trial lawyers who should have prevented jurors from hearing
his statement to police because he had invoked his right to silence. The
ruling essentially vacated Tice's conviction. The state attorney general's
office appealed that ruling to the Supreme Court.

During 40 minutes of arguments, the justices focused on two areas. In
questioning Stephen McCullough, a senior lawyer in the attorney general's
office, the justices asked how a detective's note that Tice said he didn't
want to talk any more could mean anything other than that he had invoked
his constitutional right to silence.

Justice Barbara M. Keenan asked why police continued to question him after
that. "If there's an invocation, it must cease," she said.

McCullough argued that Tice had indicated that he might continue to talk
to police if he spoke to a lawyer or had a few minutes alone.

If the court agrees with Martin's ruling that Tice's statement should have
been kept from the jury, then the justices must consider whether Tice
could have been convicted without the confession as evidence. Their
questions to one of Tice's lawyers, Melissa Henke, focused on what
evidence would remain against Tice: chiefly, testimony from a
co-defendant, Joseph Dick Jr. Henke argued that Dick's testimony was
inconsistent and uncorroborated.

Keenan questioned that argument. "He was never inconsistent about the fact
that he raped and stabbed her, and all the men in the room raped and
stabbed her," Keenan said. Since Dick admitted to participating in the
crime, she said, didn't that give his testimony more credibility?

Henke argued that Dick was required to testify because of his own plea
agreement.

Moore-Bosko's parents, Carol and John Moore, came from Pittsburgh to
listen to the arguments. They wore buttons bearing Michelle's picture. The
Moores believe Tice and all the men convicted in the case are guilty.
Carol Moore struggled with continuing to come to court on the case 10
years after her daughter's death. "This is just another way of getting to
us," she said.

Tice's parents, Larry and Rachel Tice, came from North Carolina. Larry
Tice said he feels sympathy for the Moores, but he believes his son is
innocent.

The court is expected to rule in January.

(source: The Virginian-Pilot)






GEORGIA:

The Death Penalty: What is an Acceptable Error Percentage? Byron Williams


Though the Georgia Supreme court has agreed to finally hear his appeal,
Troy Davis sits on death row for the murder of Officer Mark McPhail in
Savannah GA, despite the fact that most of the witnesses have since
recanted, many alleging they were pressured or coerced by police.

There was no physical evidence against him and the weapon used in the
crime was never found. The case against Davis consisted entirely of
witness testimony, which contained inconsistencies even at the time of the
trial.

As Davis fights for his life, the American Bar Association recently
released a report that evaluated the fairness and accuracy of capital
punishment of eight states, including Georgia. The report is based on a
simple premise that if ours is a society that is going to have a death
penalty there can be no margin for error.

The ABA findings found serious problems in every state they evaluated,
fueling calls for a moratorium on the death penalty.

According to the report, states generally are failing to require the
preservation of physical and/or biological evidence through the entire
legal process. DNA testing statutes often are drafted too narrowly, with
strict filing deadlines and onerous procedural hurdles.

States are not requiring that crime laboratories and medical examiner
offices be accredited. Most states have had at least one serious incident
of crime lab mistakes or fraud.

Every state evaluated continues to struggle with racial disparities in its
capital system. And none seem to have addressed the impact that mental
illness as well as mental retardation can have on capital cases.

Moreover, with some states utilizing judicial elections, there can be an
erosion of judicial independence as judges are increasingly selected based
on their political positions, especially on capital punishment, than
justice and fairness.

These findings and others within the report strongly indicate the only
consistency is the inconsistencies in the manner in which capital
punishment is administered. As a result, if you are poor, a racial
minority, or suffering from mental health or mental retardation, you have
a much better chance of receiving the death penalty.

The ABA report is hardly groundbreaking. It does, however, bring light to
the inequity of the policy.

Suppose all the flaws cited in the ABA report were addressed, is it
possible to have a perfect capital punishment policy? On matters of life
and death, at what point do the errors become unacceptable?

Why is it that a country that consistently demonstrates distrust for
government with benign matters can allow for such bureaucratic malfeasance
on the critical issue of life?

Are the poor, racial minorities, or those suffering from mental health or
mental retardation expendable political pawns? The obvious answer is yes.
Ambitious politicians, running on tough on crime policies, can take the
most egregious scenarios and make them emblematic of the whole. The system
is flawed; Illinois proved that in 2000 when it exonerated 13 men on death
row who had been wrongly convicted.

I have no idea if Troy Davis is innocent. I do know that his life cannot
be in jeopardy based on a system that has nothing more than inconsistent
witness testimony on which to convict him.

Given that it is a system that cannot be 100 % accurate, what then is an
acceptable percentage of accuracy? Anything above zero is a form of social
triage. Our collective primordial thirst for revenge blinds us to the
insanity of the policy.

Since the death penalty was reinstated in 1976, America has executed
roughly 1,100 individuals comprised mostly of those mentioned in the ABA
study. One can only wonder if some were wrongly convicted.

While I applaud the work of the ABA to bring these issues of injustice to
light, calling for a moratorium on the death penalty is just the
beginning. The goal must be for America to join the ranks of countries
like Honduras, Haiti, and Senegal by abolishing the death penalty, thereby
leaving the fraternity headed by North Korea, China, and Rwanda.

(source: Opinion, Byron Williams is an Oakland pastor and syndicated
columnist; Yahoo News)






CALIFORNIA:

State judge set to toss out California's new execution method


California's stalled death penalty plunged deeper into disarray as a judge
appeared poised to toss out the state's new lethal injection method as
soon as Thursday, a move that would add to the growing uncertainty over
the status of capital punishment here.

Marin County Judge Lynn O'Malley Taylor tentatively ruled on Tuesday to
invalidate the state's new procedure, but said at a hearing Wednesday she
wanted to consider how broad of a prohibition to grant.

The judge's tentative ruling came the same day the U.S. Supreme Court
signaled it would continue to halt executions nationwide until it decides
a challenge to Kentucky's lethal injection procedure.

California prison officials in May overhauled their process for injecting
condemned inmates with a deadly three-drug combination after a federal
judge said the previous execution procedure was so badly designed and
carried out that it was likely to cause unconstitutional pain and
suffering.

Taylor's ruling, if adopted as expected, won't touch on any of the
constitutional issues before the U.S. Supreme Court and federal court
system.

Instead she said prison officials violated an arcane administrative law
that required them to treat the revised lethal injection procedure as a
new regulation that required public comment and approval from the Office
of Administrative Law, among other requirements.

"The means by which we execute people is a very substantial public issue,"
said Brad Phillips, an attorney representing the 2 condemned inmates who
sued the state in Marin County to stop their executions. "The lethal
injection protocol in California is of great statewide prominence."

Phillips said even the previous lethal injection procedures used to carry
out the last several executions should have gone through the
administrative process, which he said would have helped the state avoid
some of the problems it's facing in federal court over the design of its
death penalty.

Deputy Attorney General Michael Quinn argued that the new execution
method, which includes the remodeling of the death chamber to make it more
spacious and better lit, is limited to only San Quentin Prison in Marin
County and therefore not a statewide regulation.

"It applies to a small range of prisoners for a specified time at a single
facility," Quinn argued Wednesday. He said he's unsure what the state
would do if the state judge adopts her ruling.

All state executions take place at San Quentin. There are 667 inmates
currently on death row, including 15 women held at a prison in Madera
County. No executions have been carried out since January 2006. The next
month, prison officials called off the execution of Michael Morales mere
hours before he was to die for the rape and killing of 17-year-old Terri
Winchell in a Lodi vineyard 26 years ago.

Prison officials said they could not comply with U.S. District Court Judge
Jeremy Fogel's order that licensed medical professionals assist with the
execution.

Fogel said in December he would declare the state's lethal injection
process unconstitutional unless prison officials improved the procedure
with better trained staff and an improved conditions in the death chamber.
Fogel was scheduled to tour the prison's remodeled death chamber Nov. 19.

There's also a growing sense that the U.S. Supreme Court has instituted an
unspoken moratorium on lethal injection executions since it agreed in
September to consider a challenge to Kentucky's capital punishment
procedure.

On Tuesday, the high court halted an execution in Mississippi, less than
an hour before a convicted killer was scheduled to be put to death by
lethal injection.

It's the 3rd such high court reprieve since Michael Richard was executed
in Texas on Sept. 25, the same day the court said it would hear a lethal
injection challenge from 2 death row inmates in Kentucky. State and lower
federal courts have halted all other scheduled executions since then.

(source: San Jose Mercury News)

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

Long waits on death row cruel for prisoners, victims: judge


Letting California's death row prisoners wait through more than 20 years
of appeals is cruel for the families of both the victims and the convicts,
said a veteran federal judge who wants to see appeals move more quickly
through the courts.

"For the victim's family, it is inexpressibly cruel to wait and wait for a
final resolution. That's also true for the family of the accused. It's
cruel both ways," said Judge Arthur Alarcon, senior judge with the U.S.
9th Circuit Court of Appeals in Los Angeles.

Alarcon spoke Tuesday at a luncheon meeting of the Fresno County Bar
Association's appellate law section.

He cited the case of Clarence Ray Allen, convicted in 1980 for ordering
the revenge killing of 3 people at Fran's Market in Fresno 27 years ago.
One of those killed, Bryon Schletewitz, 27, was the son of market owners
Ray and Fran Schletewitz, who testified against Allen in an earlier case.
Also killed were Douglas White, 18, and Josephine Rocha, 17.

Allen spent 25 years on death row before he was executed January 2006. His
trigger man, Billy Ray Hamilton, spent 27 years on death row. He died Oct.
22 of natural causes. "It's clear there's a terrible problem," Alarcon
said.

To fix that problem, he wants death row appeal cases to be handled by the
state appellate court, instead of the state Supreme Court, as is done.

There are 650 death row appeal cases in California, Alarcon said. If the
state Supreme Court decided 5 appeals a month, it would take 10 years to
work through the backlog. The appeals could be resolved more quickly if
handled by the state appeals court, which has 105 judges compared to 7
judges on the Supreme Court, he said.

Alarcon mapped out the problems with the state's death row appellate
process in a recent article for the Southern California Law Review. "I'm
the 1st one to go through the detail of each case on death row. You can't
duck it. It's all there," he said.

The Legislature and Gov. Schwarzenegger need to pay attention to the
problem and move toward a solution, Alarcon said.

Part of the solution is for attorneys to get more training and more pay
for representing death row inmates. "They're now paid $160 an hour. Why
should a person on death row be represented by a lawyer who's making less
than an attorney representing a company," he said.

(source: Fresno Bee)




OHIO:

Court allows hearings on constitutionality of lethal injection


In Columbus, the Ohio Supreme Court says a judge can hold hearings on the
constitutionality of the state's lethal injection process.

The court ruled 5 to 2 today in Columbus to allow Lorain County Common
Pleas Court Judge James Burge (BURJ) to hold hearings on how the state
executes condemned killers.

The court rejected the state's argument that Burge does not have the
authority as the presiding judge of a criminal trial to decide the
constitutionality of death penalty law.

The ruling means that the state prisons department will have to provide
documents and other details about its execution protocols.

Burge ordered the hearings in the case of Ruben Rivera, charged in the
2004 shooting death of Manuel Garcia.

(source: The Associated Press)