[Deathpenalty] death penalty news----TEXAS, CONN., PENN., N.J., MD.

[Rick Halperin]

Jan. 27



TEXAS:

Texas' support for death penalty remains strong----On hold nationally,
capital punishment is "a tradition" in the Lone Star State, an author
says.


In a prison cemetery, Mack Matthews and George Washington are bound by the
manner of their deaths.

The men were among 5 condemned killers who on Feb. 8, 1924, were strapped
one by one into Texas' new wooden electric chair for what the Austin
American-Statesman described as a 2-hour "harvest of death."

At the time, state officials had just taken over execution duties from
county sheriffs. They used the chair for more than 360 executions over the
next nearly 50 years.

Although the death penalty is under attack across the nation - and is in
abeyance as the U.S. Supreme Court considers a challenge from 2 Kentucky
inmates to the lethal injection - support for capital punishment remains
strong in Texas.

Here, a history of frontier justice, a law-and-order culture, and
conservative politics keep the execution chamber busy.

"It's a tradition here, and something we want to do and we're not going to
back away from," is how James Marquart, coauthor of a history of the death
penalty in Texas, describes local attitudes.

Texas retired the electric chair in 1972, after the U.S. Supreme Court
ruled that executions under state death-penalty laws were
unconstitutionally cruel and unusual.

Legislators quickly rewrote laws to reopen the death chamber using lethal
injection, which was considered more humane. The revised law was approved
by the courts in 1976, and executions resumed 6 years later.

Since capital punishment was reinstated in 1976, Texas has executed 405
inmates - more than any other state. Virginia is 2nd with 98.

Texas also leads the nation in the number of prisoners convicted and later
set free after DNA evidence showed they were innocent, although none of
those 30 cases involved death-row inmates.

Texas "might sentence people to death at rates that are not horribly out
of line, but they execute more," said Michael Radelet, a University of
Colorado capital-punishment expert.

He said execution figures might reflect lack of public defenders and lack
of attorneys to pursue appeals.

26 of the 42 U.S. inmates executed last year were in Texas. No other state
did more than 3. In 2006, Texas executed 24. Ohio was next with 5. It's a
scenario that has played out nearly every year over 2 decades.

Even in the electric-chair days, Texas was among the most active
death-penalty states. The graves of Matthews and Washington are surrounded
by others marked with the 2- or 3-digit inmate numbers reserved for those
on death row.

In 1923, the state took over execution duties from county sheriffs, who
had conducted public hangings.

"Legal local hangings by the 1920s were a long-established part of the
state's landscape," Marquart, director of the criminology and sociology
programs at the University of Texas at Dallas, wrote in his 1994 book, The
Rope, The Chair and The Needle.

"Indeed, one of the most enduring stereotypes of Texas surrounds the
public hanging of cattle rustlers on the range," he wrote.

As governor in the mid-1980s, Mark White presided over 19 executions.

"I think people of Texas are most fair-minded when presented with facts,"
he said. "They're not mean-spirited, but are supportive of strict
enforcement of law and severe penalties for those who repeat their
crimes."

White, who was attorney general when executions resumed in 1982, said he
wanted his office to be aggressive when handling the appeals of capital
cases. That policy remains in effect today.

"My approach was: OK, everybody has adequate time to prepare an appeal,
but let's not delay it and risk creating a backlog," he said.

That's what happened in New Jersey, which reinstated the death penalty in
1982 but has executed no one since 1963. Last month, it became the 1st
state in 4 decades to abolish the penalty.

The determined pursuit of the death penalty has left Texas open to
criticism about overzealous judges and the prospect that innocent people
may have been executed.

The judge issue intensified with September's execution of Michael Richard,
the last inmate in the nation to be put to death before the Supreme Court
agreed to take the Kentucky case on lethal injection.

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals,
refused to keep the court open past 5 p.m. to let Richard's lawyers file a
late appeal that would have spared his life at least until the Supreme
Court decided the Kentucky case.

Keller, who has declined to speak about her decision, has distributed
campaign literature touting herself as a law-and-order judge.

(source: Associated Press)






CONNECTICUT:

Death penalty on trial in Connecticut


Chasity West decided the best way to have her lover all to herself was to
kill his 2 young children.

Before first light on July 9, 1998, West, a 23-year-old nurse, slipped
into the Windsor home of her boyfriend's ex-wife, Tammi Cuyler, who was
also West's cousin. While an accomplice, who thought they had broken into
the house to vandalize it, held Cuyler down, West dashed into a bedroom
where her boyfriend's and cousin's 2 children slept.

West, who is black, strangled 7-year-old Jarrell Cuyler before slitting
his throat with a box cutter. She then slashed 2-year-old Lindsey Cuyler's
wrists and throat. Both victims were black. Lyndsey survived the attack;
Jarrell was nearly decapitated and bled to death.

A recently released report overseen by Yale Law School professor John J.
Donohue III, a former death penalty defense attorney, ranked the West case
as one of the state's most gruesome murders during the past 3 decades.
Despite prosecutors' efforts, West did not receive a death sentence.

The Yale report concluded that cases like West's are indicative of 2 fatal
flaws with Connecticut's system of capital punishment: the most heinous
cases don't get the death penalty, especially when the victims are black.

The report is now at the center of an unprecedented court proceeding in
which lawyers for seven of the state's 9 death row inmates are arguing
that Connecticut's death penalty is unconstitutional. They contend factors
such as race and where a defendant is prosecuted determine who receives a
death sentence.

After lingering in the court system for the better part of a decade, the
case is coming to a head. The case is of particular significance in
Greater Waterbury, where 5 of the men on death row committed their crimes
and were prosecuted.

The Yale report was released on the eve of a hearing last month in which
prosecutors asked that the case be dismissed, argued the death row lawyers
had abused the system by making claims of discrimination they couldn't
prove. A judge hasn't ruled on that request.

It's the 2nd report funded by the state to assess whether the death
penalty is discriminatory. The studies cost more than $500,000 combined.

(source: Waterbury Republican-American)






PENNSYLVANIA:

Ruling near on Abu-Jamal jury----A U.S. court is weighing race and other
issues in death sentence.


In the nearly 26 years since his conviction for the murder of Officer
Daniel Faulkner, the international tempest over Mumia Abu-Jamal has fixed
primarily on this question: Did he do it, or was he framed by Philadelphia
police?

Yet inside the chambers of the U.S. Court of Appeals for the Third
Circuit, Abu-Jamal's innocence or guilt is not the issue. Since May, three
judges have been weighing whether to reinstate his death sentence,
overturned in 2001. If they do, his last hope will be the U.S. Supreme
Court, which hears fewer than 2 percent of all petitions filed each year.

The Third Circuit's decision, expected soon, will be based on knotty
constitutional questions relating to the fairness of his 1982 trial in
Philadelphia Common Pleas Court and subsequent state appeals:

Were the jury instructions confusing?

Was the trial judge biased in a later hearing?

In addressing the jury, did the prosecutor downplay the likelihood of a
capital sentence's ever being carried out?

And - a key contention in Abu-Jamal's appeals - were African Americans
purposely excluded from the jury?

He was convicted by 10 white and 2 black jurors on July 2, 1982. They
sentenced him to death the next day.

The subject of racial discrimination in jury selection dominated the
spirited oral argument in May between Abu-Jamal's legal team and the
Philadelphia District Attorney's Office before the Third Circuit panel.

Defense lawyers contended that, particularly through the mid-1980s,
Philadelphia prosecutors routinely excluded black jurors, long viewed as
less likely than whites to convict. Prosecutors countered that Joseph
McGill, the assistant district attorney who tried the case, had no such
bias.

A third black juror had been impaneled, but was replaced by a white juror
after she left the hotel where the jury was sequestered. While discussing
her, according to the trial transcript, McGill told Common Pleas Court
Judge Albert Sabo, "I wanted to get as much black representation as I
could that I felt was in some way fair-minded."

Until 1986, proving racial discrimination in jury selection was almost
impossible. But in Batson v. Kentucky, the U.S. Supreme Court said that if
a defendant could show the likelihood that black jurors had been excluded
for race, prosecutors could be questioned about their reasons. If the
prosecution failed to offer race-neutral reasons, the remedy should be a
new trial.

State and federal judges have awarded new trials on that basis to 10
convicted murderers from Philadelphia. Abu-Jamal is one of more than a
dozen others hoping for the same outcome.

Death-row inmate Donald Hardcastle, for example, was awarded a new trial -
3 times - by state and federal courts. A panel of 11 white jurors and one
African American had condemned him in 1982 on charges that he hacked to
death a couple in their North Philadelphia home. His case is now before
the Third Circuit, where the District Attorney's Office is continuing its
opposition to relief for Hardcastle.

Batson "was an important decision symbolically as well as practically,"
said JoAnne Epps, a Temple University law professor and former assistant
U.S. attorney. Prosecutors' "sensitivities are much more finely attuned
these days."

The same year as the Batson ruling, Abu-Jamal's attorneys brought up
discrimination in jury selection during an appeal to the Pennsylvania
Supreme Court. The court, which already had upheld the conviction,
rejected their claim.

In its argument to the Third Circuit, the District Attorney's Office said
that Abu-Jamal should have challenged the jury selection at the time of
his trial, and that because of the passage of time he was not entitled to
even a hearing on the matter.

If the Third Circuit orders a hearing, it will be a victory for Abu-Jamal,
possibly adding years to his appeals.

His future is in the hands of the chief judge of the federal appeals
court, Anthony J. Scirica, appointed in 1987 by President Ronald Reagan,
Robert E. Cowen, also appointed in 1987 by Reagan and Thomas L. Ambro, a
1999 Clinton appointee.

In previous murder cases from Philadelphia courts, each has voted to grant
relief to defendants who argued that black jurors had been excluded
because of race.

During his appeal, Abu-Jamal remains one of 228 inmates on Pennsylvania's
death row, the nation's 4th-largest, behind California, Florida and Texas.
The last person executed in the state was Gary Heidnik, a convicted
murderer from Philadelphia who gave up his appeals and died by lethal
injection in 1999.

A former radio journalist, Abu-Jamal was working as a cab driver in Center
City early on Dec. 9, 1981. At his trial, the prosecution contended that
Faulkner had just pulled over a car driven by Abu-Jamal's brother when
Abu-Jamal ran toward them from a parking lot across the street and shot
the officer. Faulkner, in turn, shot Abu-Jamal.

The defense said another man in the car had killed Faulkner and fled.

Since the trial, Abu-Jamal has generated one appeal after another in state
and federal courts. He still has a petition pending in the Pennsylvania
Supreme Court, but in his 3 previous forays there, he lost.

The decision under review by the Third Circuit was made in 2001 by U.S.
District Judge William H. Yohn Jr., who upheld Abu-Jamal's conviction but
overturned his death sentence. Although he rejected 28 of 29 defense
arguments, Yohn said a new sentencing hearing was necessary because the
jury might have mistakenly believed it had to agree unanimously on
"mitigating" circumstances.

If the Third Circuit decides in Abu-Jamal's favor and does not reinstate
his death sentence, he could get a chance to persuade a new jury to give
him a life term, and perhaps a hearing on whether black jurors were
intentionally excluded.

He also could be awarded a new trial, though most do not expect that. Any
ruling in Abu-Jamal's favor would likely prompt the District Attorney's
Office to ask the Supreme Court to intervene.

Whatever the judges' conclusion, the international network of Abu-Jamal
supporters is planning to turn out en masse when it is announced, to
celebrate or to protest. Rallies are slated for Philadelphia, New York and
San Francisco for the day after the pivotal ruling.

Maureen Faulkner, the slain policeman's widow, said she, too, was feeling
the anticipation. "Waiting for the phone to ring can be a very stressful
thing," she said Friday.

"The fact that we're still waiting for a decision indicates that it's not
an easy case," said former Third Circuit Judge John J. Gibbons, a lawyer
in North Jersey who became an opponent of capital punishment after he left
the court and worked to abolish the death penalty in New Jersey.

Former Third Circuit Judge Arlin M. Adams called eight months "a little on
the long side" to wait for a ruling. But no doubt, he added, the judges
are being cautious, especially since the U.S. Supreme Court could review
whatever they do.

"This case has gotten a lot of attention - internationally and
nationally," said Adams, a lawyer in Center City. "They want to get it
right."

(source: Philadelphia Inquirer)






NEW JERSEY:

N.J. death penalty abolition creates questions over pending cases


New Jersey's decision to abolish the death penalty means prosecutors are
trying to decide what to do with pending capital cases that they have been
working on for months - and sometimes years.

Gov. Jon S. Corzine last month signed a law making New Jersey the 1st
state to abolish the death penalty in more than 40 years.

The 8 men on death row had their sentences commuted to life in prison. But
there's confusion about what to do with the 22 men and one woman who were
facing capital murder charges in the state.

Prosecutors say they're unsure whether the defendants, now spared the
death penalty, will automatically face life without parole.

Assistant Morris County Prosecutor John McNamara Jr. described the
confusion in a letter to a judge over the upcoming trial of Honduran
immigrant Porfirio Jimenez, accused of stabbing to death a 10-year-old
boy.

"The task of the parties to discern what should occur next is made
complicated by the fact that the recently enacted legislation makes no
mention of pending cases," McNamara wrote.

McNamara suggested the jury would have to consider the same aggravating
factors that once qualified defendants for the death penalty. If they
agreed Jimenez met the factors, the sentence would be life without parole.

In Hudson County, Corzine had yet to sign the death penalty law as jury
selection began for the trial of Edward McDonald. But Prosecutor Edward
DeFazio decided to proceed as though the death penalty had already been
abolished.

DeFazio said the move eliminated the time it takes to quiz prospective
jurors about their feelings about putting criminals to death.

The jury pool being pared down to 16 this week will never learn that
McDonald, accused with a partner of killing a family of four in Jersey
City in 2005, could have been executed.

"I feel fairly confident we're proceeding in the proper manner," DeFazio
told The Sunday Star-Ledger of Newark.

(source: Newsday)






MARYLAND:

Doubt and Death in Md.


When New Jersey abolished the death penalty last month, it was the 1st
state to do so since the death penalty was reinstituted in 1976. Maryland,
like New Jersey, is an infrequent user of the death penalty, with 5
executions since 1976 and 5 prisoners on death row.

Should Maryland follow New Jersey's lead on ending the death penalty?
Personally, I say sure. But given the difficulty in a repeal bill passing
out of the Senate Judicial Proceedings Committee and a recent poll showing
that 57 percent of Marylanders support the death penalty (with 33 percent
opposed), Gov. Martin O'Malley should instead take the lead against the
death penalty in a way that may be adopted by states unlikely to rescind
the law. He should support strengthening the standard for sentencing a
person to death to at least a "reasonable doubt" standard, or use an even
higher standard of "beyond a lingering doubt."

The standard for conviction down to the lowliest criminal offense has long
been that a person may not be convicted without proof of guilt "beyond a
reasonable doubt." Yet current law in Maryland is that jurors need only
find by a "preponderance of the evidence" that the aggravating factors
outweigh the mitigating factors in order for someone to be executed (the
same standard as in a regular civil case). In 2003, 3 out of 7 members of
the Court of Appeals of Maryland in the Oken case held that a
constitutional standard should instead be "beyond a reasonable doubt."

Last January, in State v. Borchardt, the Court of Appeals discussed an
alternative but related standard of "beyond a lingering doubt." The court,
quoting the U.S. Supreme Court, defined this doubt as "a lingering
uncertainty about facts, a state of mind that exists somewhere between
beyond a reasonable doubt and absolute certainty."

This standard would not affect the "proof beyond a reasonable doubt"
standard in order to convict a defendant, but it would help address the
real concern that innocent people have been sentenced to death and
executed, by making it more difficult to execute someone convicted only
with circumstantial evidence or unreliable witness identifications. One
way this might be done would be to legislate that convicted defendants
need to be found deserving of death "beyond any reasonable doubt," and
that includes against any "lingering doubt" that the person is innocent.

If Maryland adopted a higher standard of guilt, other states might follow.
In particular, Virginia might follow suit by adopting a reasonable- or
lingering-doubt standard. This would probably be the best that opponents
of the death penalty could hope for from Virginia, with a populace that
staunchly endorses the death penalty and with the most executions in the
United States after Texas.

If O'Malley wants to continue to take a stand against any death penalty on
moral, practical and legal grounds, he should do so. But he should also
consider reasonable alternatives. A higher standard of proof for execution
would go a long way toward ensuring the important societal and judicial
goal of reducing the possibility that states will execute the innocent.

-- Michael Wein----Greenbelt (source: Letter to the Editor, Washington
Post)