[Deathpenalty] death penalty news-----GA., N.C., S.C., CALIF.

[Rick Halperin]

Sept. 25



GEORGIA:

Is the public less eager to have killers die?----Juries increasingly
prefer option of life without parole


Robyn Lang felt that if you kill, you should be killed.

Then she sat on Robert Spickler Jr.'s jury.

Spickler had met his victim, Bruce Belville, in Las Vegas. Months later,
Spickler and a friend stopped to see the Cobb County businessman while
driving to Florida. The 3 drank away the night at a bar before returning
to Belville's home.

When Belville fell asleep, Spickler smashed in his skull with a
sledgehammer and fled with his credit cards.

Spickler deserved the utmost punishment for the brutal act, Cobb District
Attorney Pat Head told jurors. But in the jury room, Lang decided the
death penalty was less clear-cut than she'd thought.

"I still saw this man as a human being," said Lang, a schoolteacher. "The
death penalty to me is for certain killers  for somebody who could murder
again, somebody who is a danger."

She and 11 other jurors decided Spickler qualified for execution under
Georgia law. But they sentenced him in 2001 to life without parole.

Lang's reluctance to impose death  a penalty she had long supported
mirrors an ambivalence that has taken hold of juries across Georgia and
the nation.

Georgia juries have rejected death in 2 of every 3 capital cases since
2000, The Atlanta Journal-Constitution's study of murder convictions
shows. Last year, for the 1st time in 30 years, no Georgia jury issued a
death sentence.

That marked a departure from the mid- to late 1990s, when juries imposed
death about 1/2 the time. In 1997 and 1998, juries sent killers to death
row 67 % of the time.

The drop-off is stark when measured in death sentences: Georgia sent 5 or
more people to death row every year between 1974 and 2000. It's sent fewer
than 5 each year since then.

Public opinion polls show that support for the death penalty continues to
run high throughout the South.

But experts say a raft of factors have sent death sentences tumbling here
and across the country. Better-trained defense lawyers, the option of life
without parole, a dip in violent crime and, possibly, a shift in
Americans' view of execution are all contributing, they say.

At one time, execution was the only way Georgia juries could guarantee a
killer would never walk free.

But the popularity of life without parole has surged since 1993, when
Georgia lawmakers made that sentence possible for capital cases. Juries
chose it in 1/3 of death penalty trials in the 5 years before 2000; the
rate nearly doubled in the 5 years that followed.

Juries' reluctance to impose death has frustrated prosecutors. They tried
but failed this year to persuade lawmakers to allow a death sentence even
when a jury does not unanimously agree.

"To me, it is just a line that must be drawn at some point," said Head,
the Cobb district attorney. "Unless juries are willing to impose the death
penalty, we don't have a line."

Yet the newspaper's analysis shows prosecutors are also a reason for the
sentence drop. Between 2000 and 2004, they took death penalty cases to
juries only half as often as they had before.

Some experts say prosecutors and juries are behaving more cautiously in
reaction to bad publicity for the death penalty in recent years.

10 of the 38 death penalty states have put executions on hold  7 because
of challenges that lethal injection constitutes cruel and unusual
punishment, according to state officials and the Death Penalty Information
Center.

Exonerations of death row criminals because of DNA and other evidence have
also heightened fear that an innocent person could be executed, experts
say.

Scott Sundby, a law professor and death penalty expert at Washington and
Lee University, said he believes better training and support for defense
lawyers also explain the drop in death trials. 3 U.S. Supreme Court
decisions since 2000 have underscored that the court will overturn a death
sentence if the defendant is not represented properly.

The cost of death penalty prosecutions has climbed as capital defense has
grown more thorough. Sundby said those higher costs, the reduced odds of
victory, and a perception that perhaps the public isn't demanding death as
it once did may all be discouraging prosecutors from taking death cases to
trial.

Some observers wonder whether the death penalty will peter out on its own.

Sundby said many people continue to support execution despite the
criticism because they believe no other punishment is right for egregious
killers such as Oklahoma City bomber Timothy McVeigh, who was put to death
in 2001.

Yet Mike Bowers, who argued in favor of dozens of executions when he was
Georgia's attorney general, said he believes the death penalty's future is
uncertain.

"I genuinely believe we're seeing the decline and demise of the death
penalty in this country," Bowers said. "I think it's because of the cost,
the interminable delays and society's demand that there be certainty  and
that makes it almost impossible."

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

Pendulum swings toward life in prison----Death sentences for some
armed-robbery murders could be going, going, gone.


If the Georgia Supreme Court is to be taken at its word, certain armed
robberies that turn into murder may no longer qualify for the death
penalty.

Since 1974, the court has ruled repeatedly that death sentences that
became rare for certain types of cases would be thrown out.

The Journal-Constitution has found that death sentences for
straightforward armed-robbery murder cases have dropped sharply.

These types do not involve murder for hire, the killing of a police
officer, maiming or torture. Typically, they involve a killing during a
convenience store robbery or a holdup on a street corner.

>From 1995 through 2004, 440 men and women were convicted of these types of
murders in Georgia, the newspaper found.

Seven death sentences were imposed in cases from 1995 through 1999. One
was overturned on appeal, but reinstated in 2002.

Of the 189 armed-robbery murder cases from 2000 through 2004, only one led
to a death sentence. It was overturned because of improper arguments by
the prosecutor at sentencing.

Georgia State University law professor Anne Emanuel, who has studied the
court's review, said the court should be overturning all death sentences
for these types of murders.

"When only about 1 % of these cases are receiving a death sentence, that
sentence is substantially out of line," Emanuel said. "In fact, it's
constitutionally disproportionate."

The court has used the review to toss out death sentences for armed
robbery, rape and kidnapping with bodily injury.

In 1974, the court overturned a death sentence for an armed robbery in
East Point, saying it had been "rarely imposed" in similar cases. For the
same reason, the court threw out 5 more death sentences for armed robbery
in the next 7 years.

In July, the Florida Supreme Court threw out a death sentence for a
defendant who killed a man during a 2001 robbery. It found no evidence of
premeditation and no intent to eliminate a witness.

"We do not diminish the tragic and inexcusable loss of life of the
victim," the court said, "but we must reserve the death penalty for the
most egregious of murders."

(source for both: Atlanta Journal-Constitution)






NORTH CAROLINA:

Death docs?----A ruling by Judge Donald Stephens puts doctors, and the
N.C. Medical Board, in a tough spot. It's worth appealing


A Wake County Superior Court judge now has barred the N.C. Medical Board
from disciplining doctors who participate in meting out the death penalty,
but fortunately, other court cases will keep the state's thumb off the
plunger of the lethal injection syringe for awhile to come. That should
give policymakers and legislators time to adequately debate the wisdom of
the state putting people to death, and of the procedures now used. That
debate is far from over.

The Wake judge, Donald Stephens, issued his ruling late last week,
declaring that the Medical Board, the body that regulates and disciplines
physicians in North Carolina, was wrong when it passed a policy saying
doctors would commit an ethical breach if they participated in any but the
most inactive way during an execution. Violating the policy could result
in a doctor losing his license to practice.

The board had allowed a doctor's mere presence in the execution chamber
because state law seems to require it, and also in answer to that point
being raised by the state Department of Correction, which is pushing a
pro-death penalty agenda despite more and more qualms about its use across
the state. But Stephens said that the law was intended to ensure that a
doctor would be present at executions to "perform medical tasks."

The issue revolves around assertions by condemned inmates that the lethal
injection procedure could become so painful as to violate the
constitutional ban on cruel and unusual punishments.

In a previous ruling, the state was ordered by a federal judge to have a
doctor monitor a device that can indicate an inmate's level of
consciousness. If the inmate were not rendered unconscious or seemed to be
suffering intense pain, the doctor presumably would stop the execution. In
any case, correction officials didn't seem to worry about that
requirement, since the doctor in the most recent executions -- following
the Medical Board's edict -- testified that he didn't monitor the device
at all.

Stephens is usually a careful jurist, but a more germane law that might
have been applied to this case gives the Medical Board the authority to
set ethics standards for doctors. The legislature gave that power to the
board for several good reasons, one of which being that physicians
uniquely deal with life-and-death matters. The critical role of ethics in
so important a policy as capital punishment, and in the duties of a
physician, should have held sway.

The board ought to appeal the ruling. To do less could put some doctor in
an ethically challenged position of having to watch over executions,
perhaps to revive a suffering inmate only so that he could be put to death
later. That flies in the face of a doctor's healing oath.

There should be no question that people on death row usually have
committed heinous crimes, but life in prison without parole is a more
fitting, and reversible, sentence that does not risk compromising the
ethics of medical personnel.

The issue of cruelty is working its way through the courts, but the board
should appeal Stephens' ruling in any event, since it bears directly on
the board's ability to set ethical standards. Indeed, other medical
professions have a stake in the outcome of the case. The correction
department may look for nurses to oversee executions, for instance, if the
courts excuse physicians.

Actually, the legislature would act in a clear, defensible manner if it
outlawed executions entirely. Murderers still would be punished, and
doctors could perform the healing work they entered the profession to do.

(source: Editorial, News & Observer)






SOUTH CAROLINA:

Death penalty trial set for Louis Winkler


A trial date has been set for a man accused of killing his estranged wife.

Louis Winkler, who is being held at the J. Reuben Long Detention Center,
will go on trial in January, said Greg Hembree, solicitor for the 15th
Judicial Circuit.

Jury selection will begin on Jan. 28, Hembree said.

The death penalty trial is expected to begin around Jan. 31.

The trial is expected to last about 2 weeks.

Winkler is charged in the March 2006 shooting death of Rebekah Grainger,
his estranged wife, at her Baytree condominium.

(source: Myrtle Beach Sun)






CALIFORNIA:

Fair play says to pay prisoner for his 18 years


A hearing officer has ruled against DeWayne McKinney, who seeks cash for
time served for a murder even the D.A. says he doubts McKinney committed.

The state's program for compensating people wrongly convicted and sent to
prison has specific legal elements, but it mostly appeals to our sense of
fair play.

That is, if you did time in the state pen for a crime you didn't commit,
you get paid for what you lost. That compensation has to come in the form
of cold, hard cash, because there's no way to repay the cold, hard years
you'll never get back.

This is no place for technicalities -- not when it comes to a guy who was
doing life without parole for murder. This is no place to be working an
angle.

So I'm trying to see how a state hearing officer isn't working an angle in
ruling against DeWayne McKinney's claim for roughly $700,000 in
compensation for the 18 years he served in the slaying of a Burger King
employee in Orange during a robbery in December 1980.

McKinney was released in January 2000 after the Orange County district
attorney's office decided not to oppose a public defenders' motion to let
him out. At the time, Dist. Atty. Tony Rackauckas had concluded that he no
longer was convinced of McKinney's guilt. When McKinney appeared at a
hearing this year to ask for the monetary compensation, Rackauckas
testified, "I think it's likely he didn't commit the murder."

He couldn't know that with certainty, but said he trusted the findings of
2 experienced investigators whom he'd assigned to review the case in 1999.

The McKinney file wasn't just another case to cross Rackauckas' desk: As a
deputy district attorney in 1982, he'd prosecuted McKinney and asked for
the death penalty after he got the conviction.

Fast-forward to 2007. You couldn't blame McKinney for thinking that, if
the man who in 1982 wanted him executed no longer believed in his guilt,
he had a pretty good chance of convincing the state he was entitled to
compensation for his 6,570 days behind bars.

Last week, hearing officer Kyle Hedum disabused McKinney of that notion.
Saying that McKinney hadn't proved his innocence at the hearing, Hedum
recommended that the state pay him nothing. That recommendation is
expected to be accepted by the three-member panel that makes the final
decison next month.

And how does Hedum know McKinney wasn't unfairly incarcerated?

He doesn't.

He can't. Any more than Rackauckas can know for a fact that McKinney is
innocent. But at least Rackauckas honestly answered that way when asked
during his testimony at the hearing.

For his part, Hedum picked and chose elements of the McKinney file and
determined that the "preponderance" of evidence didn't support his claim.
The evidence that convicted McKinney in 1981 and 1982 consisted almost
entirely of eyewitness testimony from the four surviving employees of the
Burger King. Other elements were weaved into the fabric of the case, but
none would have held up without the eyewitness identifications.

2 of the 4 subsequently changed their minds about McKinney's guilt. The
other 2 held firm, and Hedum found their certainty more credible than the
others' doubts. That, even though one of the unshakable witnesses couldn't
pick McKinney from a lineup and didn't even look at a photo lineup.
Rather, he identified him in court.

The other firm eyewitness saw the robber-killer for 7 seconds, Hedum wrote
in his report. But when it came to testimony that indicated the robber was
anywhere from 1 1/2 to 4 1/2 inches taller than McKinney, Hedum explained
it this way: ". . . it is likely that the eyewitnesses were more focused
on the weapon than on the height of the person holding the weapon."

More focused on the weapon than the height? You bet. That's pretty
standard stuff from experts on eyewitness testimony. But is it lost on Mr.
Hedum that someone more focused on a weapon than height might also have
been more focused on weapon than what the guy actually looked like?

I'm not an advocate for McKinney's guilt or innocence. I don't have an
opinion on whether he did it or not.

But when the district attorney says he no longer would prosecute the case,
agrees to his release and thinks he's probably innocent, that's
persuasive.

Keep in mind Rackauckas could have testified he still thought McKinney was
guilty.

To rule against McKinney, Hedum said he didn't believe the story that
emerged before McKinney's release that someone else committed the slaying.

He believed the witnesses who remained convinced and didn't believe the
ones who changed their minds.

And even though .22-caliber bullets in the home where McKinney lived were
different from the ones used in the slaying, Hedum concluded that their
mere presence indicated he had a .22-caliber pistol that could have been
used in the slaying.

McKinney's attorney, Jeffrey Rawitch, assumes Hedum's finding will
prevail. If so, he says, the program for compensating wrongly convicted
people is deeply flawed. "It looks like they're only willing to accept a
DNA case," he says. And there is none. "We've given them everything short
of that."

McKinney has made a nice living since his release and isn't strapped for
cash. But there's something patently unfair about doing 18 years in the
joint for a murder that the D.A. now wouldn't even take to trial.

If McKinney was guilty in 1982, he should be guilty today. If he's not
guilty today, he deserves to be paid back.

The state attorney general's office says the evidence "certainly seems to
suggest" McKinney was the killer. Hedum can't possibly know the truth.

But when in doubt, wouldn't basic fair play compel the state to give the
money to the guy who gave it 18 years of his life?

(source: Los Angeles Times)

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

Activists walk to end death penalty


A coalition of death penalty opponents began to carry their message
against capital punishment on foot with an 800-mile walk through 15
counties within California, September 15 in San Diego.

The walkers aim to draw attention to the issue of the death penalty, unite
local activists, and to encourage the district attorney in every county
along the walk route not to seek the death penalty in any case. The 2007
Walk to Stop Executions ends November 30 at the State Capitol in
Sacramento.

They also intend to raise $6,000 to help educate the public about the
inherent flaws in the death penalty, a Death Penalty Focus (DPF)
spokesperson said.

"There are quite a few responses to the death penalty. Our system is not
perfect. We've made a lot of mistakes and sentenced people to die for
crimes they did not commit and for years we thought we had right person.
The punishment cannot be reversed and with the death penalty, we risk
executing the innocent," stated Stefanie Faucher, program director for
DPF.

DPF is a coalition of organizations and individuals dedicated to, among
other things, helping to propel the U.S. to a more humane, fair and
honorable system of justice.

There were a total of 3,350 death row inmates within U.S. prisons as of
January this year, according to the National Association of Colored People
(NAACP) Legal Defense and Educational Fund, Inc.'s (LDF) Winter 2007
quarterly report, "Death Row U.S.A."

There are more Blacks (45 %) and Whites (42 %) on death row compared to
other ethnicities. Latinos comprise 11 % and Native Americans and Asians
are just over 1%. Men dominate death row at 98 % compared to women at 2%.

One of these men was Kenneth Foster, Jr., until Texas Governor Rick Perry
commuted his death sentence to life in prison 1 day before his scheduled
execution on Aug. 31. The Texas Board of Pardons and Paroles voted 6-to-1
to recommend the reduction.

Although Mr. Foster, also known as Haramia KiNassor, has not killed
anyone, he was convicted of murder because a passenger in the car he was
driving committed a robbery and murder.

John Coursey attributed much of the victory to Mr. Foster's own testimony
and the statewide and national protest over the Texas Law of Parties,
which was used to convict him. The statute permits the state to prosecute
individuals based on the actions of another.

"Even the State of Texas could admit that he was not the actual murderer.
That could be a turning point in some ways because Texas is considered the
heart of capital punishment. However, I don't expect to see the
abolishment of executions in Texas any time soon," Mr. Coursey stated.

He told The Final Call that in addition to wrongful convictions, a good
reason to oppose the death penalty is because it has always been a racist
institution.

"The death penalty was overturned in 1972 because of racial disparities,
but the Supreme Court reinstated it in 1976. Its not just the race of the
person on death row, but the person he or she is accused of murdering. 75
% of the victims are White, and if it's a Black-on-Black crime, that
typically does not lead to execution, But if its a black-on-white crime,
then it does matter. That itself sends a really negative message that a
White persons life is more valuable than a Black person's life," Mr.
Coursey stated.

Mr. Coursey compares the Walk to the Civil Rights Movement, an era when
people took the fight for justice an equality to the streets. Death
Penalty opponents will have to do the same and not simply rely on
politicians to argue whether it should be ended or not, he continued.

The Walk to Stop Executions was first led by activist Richard Carlburg in
2000. This year it is sponsored in part by DPF, People of Faith Working
Against the Death Penalty and Amnesty International USA.

Residents of each county can participate in the demonstration by walking a
5-mile segment or attending a rally within their county, pledging 3, 5 or
25 cents to walkers or contributing a tax-deductible donation of $24.

Whatever method preferred, Ms. Faucher said, action is necessary. "The
question to consider is not whether these individuals deserve to die, but
whether we are the ones that should kill them."

(source: FinalCall)

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

Foreigners can't sue police for violating their legal rights


Foreigners who are arrested in the United States can't sue police for
failing to tell them of their right to contact their consulate, despite a
treaty requiring such notification, a federal appeals court ruled Monday.

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San
Francisco said the 1963 Vienna Convention, which provides protection for
people facing prosecution in a foreign country, governs relations between
nations and does not authorize private lawsuits for violations.

The treaty requires police who arrest foreign citizens to advise them that
they have the right to contact their consulate. Consular officials may be
able to help them understand their rights and arrange legal assistance.

Genaro Lara, lawyer for the man whose suit was dismissed, said he would
appeal the decision to the U.S. Supreme Court. He said the ruling allows
police to violate the treaty without consequences and leaves imprisoned
noncitizens without any recourse.

Foreigners in U.S. jails have invoked the Vienna Convention in a number of
recent court cases.

The U.S. Supreme Court has refused to block several executions of
foreign-born prisoners who claimed their rights under the treaty were
violated. But after the World Court ruled in 2004 that the United States
had violated the treaty in the cases of 51 death row inmates, including 26
in California, President Bush ordered courts in those states to take
another look at the death sentences.

Bush also said, however, that the United States would no longer recognize
the World Court's authority to decide the treaty's meaning in disputes
between nations.

Last year, the U.S. Supreme Court ruled that prosecutors could use
evidence of statements to police by defendants who had not been advised of
their right to contact their consulate. The court did not decide whether
those defendants could sue police for violating their rights, the issue in
Monday's ruling.

Ezequiel Cornejo, a native of Mexico, filed the suit in 2005 after being
arrested in San Diego County on drug charges. Lara, Cornejo's lawyer, said
his client had pleaded guilty to marijuana possession and served a year in
jail.

The suit, filed against the county, several cities and officers, sought
damages for all foreigners arrested and jailed without being notified of
their right to contact a consulate. The appeals court upheld a federal
judge's dismissal of the suit, saying neither the treaty nor the U.S. law
that implemented it authorized private lawsuits.

If the treaty is violated, a government can protest through diplomatic
channels, Judge Pamela Rymer said in the majority opinion.

Dissenting Judge Dorothy Nelson said the Vienna Convention established the
rights of foreigners to contact their consulates, rights that she said
could be enforced in lawsuits.

(source: San Francisco Chronicle)