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

[Rick Halperin]

Sept. 26


NORTH CAROLINA:

Nagging questions----Now's the time to reexamine N.C. execution procedures


Questions about the way North Carolina administers the death penalty are
still unresolved despite a Superior Court judge's ruling last week that
the N.C. Medical Board lacks authority to punish doctors for taking part
in executions.

The board's policy has brought about a de facto moratorium on N.C.
executions, but the state continues resisting what it really needs: a
careful examination of whether our justice system consistently can meet
constitutional muster in its executions of convicted murderers.

This is a good opportunity to make that assessment because executions
aren't likely to resume right away. Wake Superior Court Judge Donald
Stephens' decision last week only marginally moves the process toward a
clear resolution. Judge Stephens ruled that the medical board cannot trump
state law that authorizes executions for first degree murder and requires
the participation of physicians. And, he wrote, executions are not medical
procedures over which the board has authority. The legislature "clearly
intended that a physician attend and provide professional medical
assessment, assistance and oversight in every judicial execution compelled
by law. ..."

The N.C. Medical Board had adopted a policy in January that the
profession's ethics prevented physicians from taking part in executions.
Last month an administrative law judge took the medical board, the Easley
administration's Department of Corrections and the Council of State to
task for separate contributions to the current impasse confusion over
executions.

Judge Fred Morrison said the medical board should not have threatened to
punish doctors who took part in executions; said the corrections
department may have misled a federal judge that a physician would not only
be present at executions but make sure inmates didn't suffer unusually
severe pain; and that the 10-member Council of State should have heard
arguments from 5 condemned inmates who contend the state's use of lethal
injections violated the U.S. Constitution's 8th amendment ban on cruel and
unusual punishment.

Where does this leave things? All balled up. The Council of State soon may
reconsider its approval of a revised executions procedure and perhaps
consider the arguments of inmates' lawyers about cruel and unusual
punishment. And it comes against a larger backdrop of continued questions
of whether North Carolina's criminal justice system too often convicts the
wrong person -- risking the possibility that an innocent person might be
sentenced to death.

The N.C. General Assembly has taken a number of steps in recent years to
reduce that possibility, clarifying court rules and requiring that defense
attorneys in capital cases have more training and experience. But North
Carolina has yet to fully examine whether its criminal justice system can
fairly and consistently identify, prosecute and execute 1st degree
murderers in every judicial district.

(source: Editorial, Charlotte Observer)

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

Put a freeze on executions until we're sure N.C. system is fair


Executions won't resume in the near future, the state Department of
Corrections said last week, even though a judge ruled that the North
Carolina Medical Board overstepped its authority by threatening to punish
physicians for participating in them.

They shouldn't resume, but the reason is unrelated to the role of doctors,
who can now participate without fear of sanction by the medical board.

Lawmakers should declare a moratorium on executions and conduct a
full-scale inquiry into whether North Carolina's practices and procedures
lead to the death penalty being administered fairly and only in cases of
incontrovertible guilt.

The state has been operating under a de facto moratorium since the medical
board adopted a new code of ethics more than a year ago that prohibits
doctors from monitoring or participating in executions. North Carolina's
execution protocol requires the presence of a doctor as a safeguard
against any violation of the Constitution's protection from cruel and
unusual punishment.

Doctors on the spot

The medical board has threatened to punish any doctor who takes an active
role in an execution, saying that the process violates the ethics of a
profession whose purpose is to save life.

Superior Court Judge Donald Stephens rightly ruled that in so doing the
medical board, which was established by the General Assembly "in order to
properly regulate the practice of medicine and surgery for the benefit and
protection of the people of North Carolina" went beyond its authority.

"Although the current effort by the medical board to prohibit physician
participation in executions may well be viewed as humane and noble, such a
decision rests entirely with (elected officials)," Stephens wrote. "As of
this date, the legislature has taken no such action."

The medical board may also appeal Stephens' decision, which will likely
only extend the time during which the state fails to confront the real
issue with the death penalty: Can it be administered fairly and without
error?

Lethal injection issue

A new wrinkle emerged Tuesday when U.S. Supreme Court agreed to hear the
case of a Kentucky man who claims the state's lethal-injection method
violates the Eighth Amendment ban on cruel and unusual punishment.

As we have said before, if the death penalty is to be a sentencing
alternative, it's hard to conceive of a form that will not cause some
degree of suffering, however momentary. It's also hard to argue with the
father of 11-year-old Amy Jackson, who was raped and stabbed to death in
1995 by Archie Billings, one of the inmates whose execution has been
delayed.

The Raleigh News & Observer reported that the father cannot understand why
anyone would care whether death row inmates suffer when lethal injection
is administered, especially if the murderers tormented their victims.

The state must, however, be able to ensure that race, religion, gender and
other such factors do not influence who is sentenced to death. It must
also be able to ensure that the death sentence is handed down only when
there is absolutely no doubt as to the guilt of the person sentenced to
die.

It's beyond dispute that, given a number of high-profile cases of
prosecutorial misconduct and miscarried justice, a thorough examination of
the state's procedures with regard to investigation, prosecution and
judicial oversight in murder cases should be conducted.

It's likely the medical board will appeal the Stephens' decision and that
may well continue to be a distraction. But in the interest of justice and
fairness, lawmakers ought to take their first opportunity to declare a
moratorium until such a study can be completed and reviewed.

(source: Editorial, Asheville Citizen-Times)






CALIFORNIA:

Writing new rules to protect innocent


Timothy Atkins of Los Angeles was released just last February after 20
years in prison, wrongfully convicted of murder based on the false
testimony of a "snitch" witness. Eighteen-year-old Harold Hall of Los
Angeles went on to serve 19 years in prison after he falsely confessed to
a double homicide following a 17-hour interrogation. Peter Rose of Tustin
served 10 years for a rape after a crime victim mistakenly identified him.
These 3 men -- just a small sampling of California's wrongly convicted --
served more than a half-century of hard time for crimes they did not
commit.

A trio of bills, informed by recommendations of the California Commission
on the Fair Administration of Justice, now sits on Gov. Arnold
Schwarzenegger's desk awaiting his signature. Although they offer obvious
protections to the innocent, what may be less readily apparent are
benefits they provide to law enforcement, the prosecution and the public
at large.

Senate Bill 609 by Sen. Gloria Romero, D-Los Angeles, curtails reliance on
the notoriously undependable testimony of jailhouse informants, requiring
corroboration of such testimony before its introduction in court. The law
already requires corroboration for accomplice testimony. This bill simply
extends existing law to jailhouse informant testimony, which studies show
is even more likely to be false. Moreover, this bill in no way affects the
testimony of witnesses actually present during crimes, so it will not
hinder prosecutions of crimes committed in prisons or jails.

In 2003 in my home state of Illinois, the state Assembly approved similar
legislation and prosecutors have proffered less testimony from jailhouse
informants. In function, the new law has strengthened their cases. They
now rely less on witnesses who, in the eyes of fact-finders, place their
own self-interest before the execution of justice.

Senate Bill 511 by Sen. Elaine Alquist, D-Santa Clara, mandates the
recording of custodial interrogations in California's violent felony
cases. My associates and I have spoken with seasoned law-enforcement
officers in more than 500 jurisdictions -- including several in California
-- who record custodial interrogations. Not one officer has told us that
he would return to unrecorded interviews.

A recording of an interrogation creates a permanent record that can serve
as a strong investigative tool and as a potent piece of courtroom
evidence. Furthermore, recording frees the interviewing investigator from
meticulous note-taking, allowing him to focus solely upon the interview
and identify otherwise overlooked clues. The practice also protects
officers from unfounded claims of misconduct or coercion.

Senate Bill 756 by Sen. Mark Ridley-Thomas, D-Los Angeles, creates a task
force that would establish voluntary eyewitness identification guidelines
based on sound science and proven best practices. The task force would
comprise well-rounded representation, including members of law
enforcement.

Mistaken eyewitness identification is the single largest contributor to
wrongful convictions. In the nation's 205 exonerations proven through DNA
testing, more than 75 % were based, at least in part, on the introduction
of eyewitness evidence later proven faulty. 8 of California's 9 DNA-proven
exonerations involved mistaken eyewitness identifications, and fallible
methods yielded tragically inaccurate results.

Still, nothing the task force proposed would be binding on the state. The
attorney general would report back to the Legislature a year after
guidelines were promulgated. And only after that report, with the
hindsight of a year's experience, would the Legislature make an informed
decision whether to make the guidelines mandatory.

I have sat on both sides of the table -- prosecuting crimes as a U.S.
attorney and representing the accused as a defense lawyer. This broad
experience has shown me that if we can bolster the reliability of evidence
in the courtroom, we can strengthen our system of justice for everyone's
benefit. California now has a vehicle for that brand of change with 3
significant bills. If enacted, the trio would enhance the overall accuracy
of evidence -- and ensure that California heeds the lessons of Timothy
Atkins, Harold Hall and Peter Rose.

(source: Sacramento Bee - Thomas P. Sullivan, a former U.S. attorney, is
co-chair of the Illinois Governor's Commission on the Death Penalty and
appeared as an expert witness before the California Commission on the Fair
Administration of Justice.)