[Deathpenalty] death penalty news----TEXAS, USA

[Rick Halperin]

Oct. 31



TEXAS:

Perry Displays Varied Stance Toward Crime


By the spring of 2004, when Rick Perry had been governor for over three years, 
the Texas Board of Pardons and Parole had yet to recommend to him that a single 
death row inmate be spared.

That May, though, the board’s chairwoman allowed the lawyer for Kelsey 
Patterson to personally present to her an 11th-hour plea that the inmate’s 
execution be blocked because of his severe mental illness.

12 years earlier, Mr. Patterson had murdered 2 upstanding residents of 
Palestine, Tex., for no apparent reason and then fled to a nearby yard where he 
stripped to his brown socks, gesticulating and hollering until the police 
arrived.

Juries had previously found Mr. Patterson, who had paranoid schizophrenia, 
incompetent to stand trial for other senseless assaults. After the double 
murder, however, he not only was tried but also testified, ranting about 
electronic implants in proceedings so tumultuous that he was repeatedly ejected 
from the courtroom or gagged with duct tape.

When the parole board voted unexpectedly to commute Mr. Patterson’s sentence to 
life in prison, his lawyer, euphoric, was cautioned by a legal counselor to Mr. 
Perry, “Honey, don’t get your hopes up.” Only the board has the power to 
recommend clemency, but the governor can deny it.

And indeed, the next day, Mr. Perry rejected the recommendation. Mr. Patterson 
was executed, and his incoherent final statement ended with the bell-clear 
“Give me my life back.”

In campaigning for the Republican presidential nomination, Mr. Perry has 
vigorously defended the executions on his watch: 236 over nearly 11 years. But 
because the governor of Texas does not play a firsthand role in the capital 
punishment system, he bears direct responsibility for only a few of those 
executions, among them Mr. Patterson’s.

To critics here, Mr. Perry’s denial of a rare offer of mercy by his board 
indicates that he is excessively zealous about what he has called “the ultimate 
justice in the state of Texas.”

But Mr. Perry’s record on criminal justice is more mixed than his tough stance 
on the death penalty might suggest, partly because of changes in the political 
and legal climate over his 3 terms as governor.

Death sentences and average yearly executions have declined during his tenure 
compared with that of his predecessor, George W. Bush. And persistent efforts 
to fix Texas’s troubled justice system have finally borne some fruit. Mr. Perry 
has not been a crusader, but he has signed reform-minded legislation and 
acknowledged some of the system’s mistakes, once referring to an exonerated 
prisoner’s murder conviction as a “great miscarriage of justice.”

“He has done more good than any other governor we’ve ever had,” said Jeff L. 
Blackburn, chief counsel of the Innocence Project of Texas. “He approaches 
criminal justice issues like a lay person rather than like a prosecutor or 
judge, which makes him open-minded and willing to embarrass the system. Unless, 
of course, it involves the death penalty.

“On the death penalty, Rick Perry has a profound mental block,” Mr. Blackburn 
continued. “The death penalty is part of our fine state’s religion; it’s 
somewhere up there with football. To oppose or weaken it would be like playing 
with dynamite, and Rick Perry, a quintessentially political person, is not 
going to blow himself up.”

‘Ultimate Justice’

Explaining in 2004 why he was rejecting clemency and upholding the execution of 
Kelsey Patterson, Mr. Perry said, “No one can guarantee this defendant would 
not be freed to commit other crimes were his sentence commuted.” Mr. Patterson 
would have become eligible for parole at 74.

Responding recently to that reasoning, Charles Aycock, a former Texas State Bar 
president who served on the parole board at the time, said in an interview: 
“Baloney. We would have never released anybody like that to the street.”

To some here, Mr. Perry’s championing of the death penalty seems crystallized 
by his 2001 veto of a bill banning the execution of the mentally retarded and 
by his refusal to stay the execution of Cameron Todd Willingham in 2004 after a 
last-minute report from an arson expert cast doubt on his guilt in his three 
daughters’ deaths in a house fire.

After that execution, Mr. Perry did not impede the Legislature’s creation of a 
commission to strengthen the state’s use of forensic science. But he did 
intervene in the commission’s investigation of the Willingham case, replacing 
its chairman, a defense lawyer, with a prosecutor who derailed the inquiry for 
over a year.

At the same time, though, Mr. Perry was signing bills to create a life without 
parole alternative to the death sentence, punish hate crimes more harshly, 
improve criminal defense for the poor, guarantee a right to post-conviction DNA 
testing, upgrade the use of eyewitness identifications and award generous 
compensation to exonerated prisoners.

State Senator Rodney Ellis, a Democrat who has led the push for criminal 
justice changes, said the governor should not be given too much credit for 
declining to veto legislation. “We’ve had to work against the grain to get that 
stuff passed,” he said.

On the parole board’s recommendation, Mr. Perry pardoned 35 people arrested in 
a tainted drug sting in Tulia and posthumously pardoned Timothy Cole, who was 
wrongfully convicted of rape and died in prison of an asthma attack. He also 
lobbied for significant compensation for a man who was exonerated after 18 
years in prison for murders he did not commit.

Kathryn M. Kase, interim director of the Texas Defenders Service, who sat 
alongside Mr. Perry’s deputy counsel on a state advisory panel created after 
Mr. Cole’s case, said, “There was certainly the sense that the governor was 
genuinely interested in both the problem of wrongful convictions and ways to 
reform the system.”

Nonetheless, Mr. Perry expresses certainty that the system has worked well 
enough to prevent the execution of any innocent people while he has been 
governor. Asked by the moderator Brian Williams at a Republican debate last 
month whether he struggles to sleep because he has presided over more 
executions than any other governor in modern history, Mr. Perry said, “No, 
sir,” after the audience in Simi Valley, Calif., had erupted in applause.

Mr. Perry continued, “In the state of Texas, if you come into our state, and 
you kill one of our children, you kill a police officer, you’re involved with 
another crime and you kill one of our citizens, you will face the ultimate 
justice in the state of Texas, and that is, you will be executed.”

Scott Henson, author of “Grits for Breakfast,” a well-read blog on Texas 
justice, said that Mr. Perry, believing that “only egg-headed liberals” oppose 
the death penalty, liked to bait the news media so he would be given a chance 
to show some swagger.

“And y’all take the bait,” Mr. Henson said, “even though Rick Perry has nothing 
to do with executions. All his bluster about the death penalty is like the 
rooster who crows taking credit for the sun rising.”

The Power to Influence

In death penalty cases, Texas governors have the right to issue a one-time, 
30-day reprieve from execution (which Mr. Perry rarely exercises). They were 
stripped of the authority to grant clemency 75 years ago when, in reaction to 
allegations of corruption, Texas voters created an independent pardons board.

Still, the governor appoints the board, and can influence it.

“I don’t think Governor Perry has appointed anybody to the board that doesn’t 
support the death penalty,” said State Representative Jose Aliseda, a former 
member. “The beauty of the thing is, though, he never once told us how he 
wanted us to vote. He could have sent us a signal. If he were not happy with a 
recommendation, he could have asked for a 30-day reprieve and then we’d 
probably have reconsidered.”

The board has reviewed more than 200 death penalty cases on Mr. Perry’s watch, 
but it chose only a few times to commute sentences. (Two Supreme Court 
decisions — banning the execution of the mentally retarded and those who were 
minors when they committed their crimes — required commutation in several dozen 
cases.)

Apart from those required commutations, Mr. Perry appears to have accepted the 
board’s recommendation to commute the sentence of a death row inmate only once, 
for a man who was a getaway car driver and did not commit murder.

Still, under Mr. Perry, in part because of the two Supreme Court decisions, 
executions have dropped from a peak of 33 in 2002 to 17 last year and 11 so far 
this year. (More than a dozen current and former Texas officials, including 
former Gov. Mark White, asked last week for untested DNA evidence to be tested 
before the next execution, scheduled for Nov. 9, takes place.)

Fewer death sentences have been handed down, too. In Governor Perry’s first 
year, 33 were issued; last year, only 7. That appears partly due to the new 
life without parole sentencing option.

State Senator Eddie Lucio Jr., who sponsored the legislation, said it took 
eight years to get it passed because prosecutors and judges thought it would 
lead to more violence behind bars and weaken the death penalty. He said that he 
finally succeeded, in 2005, partly because Mr. Perry had signaled his support 
for the measure when he voiced his fear that Mr. Patterson might someday be 
released.

“Texas has no life without parole sentencing option,” Mr. Perry said in 
explaining why he was denying clemency to Mr. Patterson, whom he called “a very 
violent individual.”

Mr. Patterson traumatized the small East Texas city of Palestine when in the 
fall of 1992 he killed a prominent businessman and his well-liked secretary in 
broad daylight in front of multiple witnesses.

Born in 1954, Mr. Patterson had grown up in the town, playing football for the 
high school and serving in the military after graduation. He was found to have 
schizophrenia in his mid-20s after he shot a co-worker for no clear reason 
while a groundskeeper at a Dallas hospital. A couple of years later, he shot 
another co-worker at a pizzeria in Palestine.

After each attack, he was deemed incompetent to stand trial, hospitalized, and 
then, when medication made him competent, found to have been insane at the time 
of the offense. Released by hospitals, he stopped taking his medication and 
turned floridly psychotic; his family had been seeking to get him 
rehospitalized in the days before he killed Louis Oates, owner of a local oil 
distributorship, and Dorothy Harris, known as Kay.

For those killings, Mr. Patterson, against his lawyers’ advice, turned down an 
offer of life imprisonment and insisted on testifying. He spoke of his food 
being poisoned and conspiracies by 50 50-year-old white men. “He was a rambling 
mess, but I think the jury was scared of him and wanted him off the streets of 
Palestine for good,” said Sam Hicks, one of his trial lawyers.

Records show that Mr. Patterson inhabited an elaborate delusional universe, 
believing that a remote control device had been implanted in his body at age 6 
and that his name had been inscribed in a registry of “hell pledges” kept 
behind the counter of a local store, Cavender’s Boot City. He considered all 
participants in the justice system, including his own lawyers, to be emissaries 
of “hell court” and believed he could be saved by telling them to go to hell.

“He’d preface his remarks to the judge by saying, ‘Sorry, your honor, go to 
hell,’ ” said Robin Norris, one of his post-conviction lawyers. “He was his own 
worst enemy.”

In his years on death row, Mr. Patterson spent his time block-printing 
hundreds, if not thousands, of unintelligible letters to the F.B.I. and other 
authorities — “schizophrenic word salads,” his lawyers called them. Yet in 
confinement, he was docile, compliant and innocuous, they said.

Rejecting Clemency

Petitioning for clemency, his lawyer J. Gary Hart argued that Texas had failed 
Mr. Patterson. He said Mr. Patterson never would have ended up on death row if, 
after previous assaults and hospitalizations, he had not been “set free to 
wander the streets of Palestine, Texas, unmedicated, psychotic and eventually 
so delusional that he was unable to control the impulse” to commit the murders. 
He said his client never should have been found competent to stand trial or to 
be executed and that clemency should be exercised to redress the shortcomings 
of a judicial system that had found no legal bar to his execution.

Mr. Hart pleaded the case orally to the pardons board’s chairwoman while 
another board member traveled to death row to meet with Mr. Patterson — who, 
delusionally, informed her that he had received a permanent stay of execution.

The day before the execution was scheduled, the pardons board members voted — 
as they always did, by fax — 5 to 1 in favor of commuting his sentence.

“I don’t think you can determine that this man was anything but mentally 
incompetent,” said Mr. Aycock, the former board member, after reviewing case 
documents recently. “It was a pretty clear case to us. We wouldn’t have voted 
that way if it wasn’t.”

Told that he was the one who had voted against clemency, he said, “Oh, jeez.” 
He paused. “I wouldn’t have voted the same way now. Don’t ask me why I did 
then. I was new to the board. I probably thought, ‘There are a lot of brilliant 
lawyers and judges who have looked at his case.’ With experience, I began 
thinking more about, ‘What is merciful?’ ”

Because clemency memos prepared by Mr. Perry’s counsel are treated as 
privileged, it is unclear what kind of a briefing he received about this case. 
After the board’s vote became public, though, he got a phone call from Todd 
Staples, now the state’s agriculture commissioner and then a state senator from 
Palestine.

Mr. Perry had a personal tie to the community through Cliff Johnson, a close 
friend and a one-time senior adviser to the governor who used to represent 
Palestine in the State House of Representatives. Mr. Johnson’s successor in the 
House, Richard Swift, was connected to the case through his secretary, who was 
the victim Ms. Harris’s sister.

According to The Palestine Press-Herald, Mr. Staples “conveyed his thoughts” to 
the governor that Mr. Patterson was a “cold-blooded killer” and that the 
execution should proceed.

Ms. Harris’s daughter, Michele Smith, traveled to Huntsville to witness it and 
afterward, sobbing, thanked the governor for “giving me a chance to start again 
and have an end to such a horrible time in my life.”

Before he was executed, Mr. Patterson made no final meal request but accepted a 
candy bar and a soda. Strapped to the death chamber gurney and asked for a 
final statement, he answered, “Statement to what. State what. I am not guilty 
of the charge of capital murder. Steal me and my family’s money.” He continued 
to ramble as the lethal injection was taking effect, issuing one more “Go to 
hell” and finally: “Give me my rights. Give me my rights. Give me my life 
back.”

(source: New York Times)






USA:

The Cost of Death


Samuel Johnson famously remarked, “When a man knows he is to be hanged in a 
fortnight, it concentrates his mind wonderfully.” But precisely because it so 
concentrates the public mind, capital punishment has distorted the criminal 
justice system. Over the past 40 years, while the Supreme Court has been 
“tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting 
phrase, other components of the system have broken down untended.

In 1972, by a vote of 5-4, the Supreme Court struck down all existing capital 
punishment statutes in the United States. While three Justices were prepared to 
hold the death penalty unconstitutional under all circumstances, two others 
focused on the fact that the existing statutes led to arbitrary decisions that 
followed no legal standards. As Justice Potter Stewart put it, capital 
punishment violated the cruel and unusual punishment clause of the Eighth 
Amendment because being sentenced to death was like “being struck by 
lightning.”

Many states responded by enacting new capital punishment statutes that 
purported to formalize decision making. In 1976 the Supreme Court upheld 
several of these efforts, pointing to key procedural safeguards, such as the 
creation of a separate penalty phase to determine whether the defendant 
deserves to die. In this penalty phase, defense counsel can present a broad 
range of mitigating evidence that may diminish the defendant’s culpability or 
incline the judge or jury to mercy.

But too often the formal safeguards that reassured the Court have proved 
illusory in practice. Underfunded, untrained, or outright incompetent lawyers 
often fail to provide their clients even minimally adequate representation. A 
1990 study by the National Law Journal found that a quarter of the inmates then 
on Kentucky’s death row had been represented at their trials by lawyers who 
were later disbarred, suspended from practice, or convicted of crimes. A 
capital defendant in Georgia was assigned a lawyer who knew the name of only a 
single criminal law opinion decided by any court.

And however unwilling the Supreme Court has been to ensure that capital 
defendants receive truly competent representation—its interpretation of the 
Sixth Amendment’s guarantee of effective assistance of counsel sets the bar so 
low that courts have upheld convictions in cases where the lawyer was actually 
asleep during part of the proceedings—it has been even less willing to police 
systemic unfairness in who is targeted for the most awesome punishment. In 
McClesky v. Kemp (1987) the Court rejected powerful statistical evidence 
showing that the death penalty in Georgia was infected by racial disparities: 
black defendants convicted of killing white victims were far more likely to be 
sentenced to death than any other group. Justice Lewis Powell’s opinion was 
unusually candid in explaining why the Court could not accept McClesky’s claim: 
“Taken to its logical conclusion,” Powell wrote, McClesky’s position “throws 
into serious question the principles that underlie our entire criminal justice 
system.” Racial disparities marbled the criminal justice system, so they had to 
be ignored.

Because the Court and Congress convinced themselves that death row inmates were 
dragging out the process of post-conviction appeals, they have dramatically 
restricted the ability of all defendants to seek habeas corpus, the primary 
vehicle for bringing constitutional challenges against state court convictions. 
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA) create a procedural obstacle course that prevents federal courts from 
addressing the merits of a defendant’s constitutional claims. For example, in 
the first week of the current Supreme Court term, the Court heard oral argument 
in the case of Cory Maples, a death row inmate in Alabama who so far has been 
unable to get the federal courts to hear his claim that his trial lawyer was 
ineffective at his sentencing. The reason? The volunteer lawyers who later 
represented him moved on to new jobs, and when the state court ruled against 
his claim, there was no one at their former law firm to receive the letter 
announcing the decision. The letter was stamped “Return to Sender,” and the 
deadline for appeal passed before anyone noticed. As a result, federal courts 
accepted the state’s argument that Maples had “defaulted” his claims.

Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and 
impenetrable procedural thickets are not unique to capital cases.

A fortnight before, the Court stayed the execution of Duane Buck, whose death 
sentence Texas seeks to insulate from federal review despite the fact that, 
under questioning from a prosecutor, a psychologist told the jury that being 
black “increases [Buck’s] future dangerousness”—a necessary element for a death 
sentence under that state’s law.

Cases such as these—not to mention the recent execution of Troy Davis, which 
spurred worldwide protests—receive focused attention both inside and outside 
the Court. The Court’s rules single out capital cases for special treatment, 
directing that the notation “CAPITAL CASE” appear at the beginning of any such 
request for review and mandating that the government, which often waives its 
right to reply, file a response. The clerk’s office has a special staff 
attorney charged with overseeing the voluminous, often last-minute filings in 
death penalty cases. The justices and their law clerks often scrutinize the 
filings with great care. The bar has also responded: death row inmates 
typically receive superb legal assistance before the Supreme Court. Former Bush 
Administration Solicitor General Gregory Garre is now representing Maples. 
Current Solicitor General Donald Verrilli previously represented several death 
row inmates pro bono before the Court.

But the concentration on capital cases comes at a cost. Ineffective trial 
lawyers, inconclusive evidence, inconsistent testimony, and impenetrable 
procedural thickets are hardly unique to capital cases. Nonetheless, the Court 
is far less likely to pay attention to these claims when the consequences to 
the defendant seem less harsh. Criminal law and procedure scholars such as 
Robert Weisberg of Stanford and Douglas Berman of Ohio State have described how 
the Court’s concern with death leads it to shortchange the constitutional 
claims of defendants facing lesser punishments. Berman has calculated that 
about one in ten thousand state felony sentences is a death sentence, yet the 
Court devotes more resources to reviewing death sentences than to reviewing 
claims in all other criminal cases combined. And while the Court has repeatedly 
considered whether a death sentence is proportionate to a particular class of 
crimes—for example, barring death sentences for non-homicide offenses or for 
juvenile or mentally retarded defendants—it has set virtually no limits on the 
severity of prison sentences. In the 40 years that the Court has been actively 
policing capital punishment, prison sentences have lengthened and the U.S. 
prison population has skyrocketed. With execution at the top end of the scale 
of punishment, a life sentence begins to look something like leniency, and 
other sentences are inflated in turn.

Capital cases also consume thousands of hours of legal services from some of 
the finest legal minds in America. The time those lawyers spend challenging 
death sentences of inmates whose guilt is not seriously in doubt could be spent 
preventing and remedying wrongful convictions, ensuring that all defendants 
receive prompt appointment of competent counsel, and attacking draconian prison 
conditions, not to mention providing civil justice to poor and disenfranchised 
people. But as long as the death penalty is with us, superb and committed 
lawyers at organizations such as the Southern Center for Human Rights, the 
Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will 
find themselves defending the lives of a few while the lives of many others 
continue to be ruined by pervasive flaws in our criminal justice system.

(source: Boston Review)

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

Lifelong Death Sentences


In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, 
Fla. In September, when he was 61, Mr. Valle was put to death for his crime.

A couple of hours earlier, the Supreme Court had refused to stay his execution 
— with 1 dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle 
had spent on death row amounted to cruel and unusual punishment.

That line of reasoning strikes some supporters of the death penalty as 
perverse. “It is a very strange argument to say that a murderer can delay 
justice with protracted appeals for decades and then turn around and claim his 
own delay as a reason to escape his deserved punishment altogether,” said Kent 
Scheidegger, the legal director of the Criminal Justice Legal Foundation.

But Justice Breyer’s approach has historical support, and it is line with 
international opinion.

“Our Constitution was written at a time when delay between sentencing and 
execution could be measured in days or weeks, not decades,” Justice Breyer 
wrote in another dissent on the same subject, this one in 1999. English law in 
the 18th century called for executions to take place on “the next day but one” 
after sentencing.

Foreign courts have ruled that living for decades under the threat of imminent 
execution is a form of psychological torment.

“There is an instinctive revulsion against the prospect of hanging a man after 
he has been held under sentence of death for many years,” the Judicial 
Committee of the Privy Council, which is based in London and hears appeals from 
former British colonies, wrote in a 1993 ruling in favor of 2 inmates who had 
spent more than five years on death row in Jamaica, commuting their sentences 
to life in prison.

Similarly, the European Court of Human Rights in 1989 ruled that extended 
periods on death row violated the provision of the European Convention of Human 
Rights that bars torture or “inhuman or degrading treatment or punishment.” The 
court acknowledged that capital punishment was permitted by the convention in 
some circumstances. It nevertheless ruled that the United Kingdom could not 
deport a German man to Virginia to face capital charges there because he would, 
if convicted, expect to spend six to eight years on death row suffering “the 
anguish and mounting tension of living in the ever-present shadow of death.”

Sarah H. Cleveland, a law professor at Columbia and a former State Department 
official, said there was a gap between the United States and much of the rest 
of the world on this point. “Although concerns about the human impact of 
excessive time spent on death row have received little attention in this 
country, the ‘death row phenomenon’ — including lengthy time on death row — has 
been recognized as inhuman punishment and illegal throughout Europe since the 
1980’s,” she said in an e-mail.

Justice Clarence Thomas has said he is not impressed by these international 
rulings.

“I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any 
support in the American constitutional tradition or in this court’s precedent 
for the proposition that a defendant can avail himself of the panoply of 
appellate and collateral procedures and then complain when his execution is 
delayed.”

That seeming contradiction misses a larger point, Justice Breyer wrote in his 
dissent in the Valle case. A capital justice system that cannot be administered 
without long delays, he said, points to “the difficulty of reconciling the 
imposition of the death penalty as currently administered with procedures 
necessary to assure that the wrong person is not executed.”

Here is what is clear: the average prisoner on death row has spent 13 years 
there, and his odds of growing old in prison are pretty good.

There are about 3,300 inmates on death row in the United States. Last year, 
there were 46 executions.

According to a study published in 2004 in the Journal of Empirical Legal 
Studies, 5 percent of the 5,826 death sentences imposed from 1973 to 1995 were 
carried out in those years. By contrast, the study found, there was a 68 
percent chance that death sentences in those years would be overturned by the 
courts.

One of the authors of that study was James S. Liebman, a law professor at 
Columbia. In a seminal 2000 article in The Columbia Law Review called “The 
Overproduction of Death,” he explained where the capital justice system has 
gone wrong: It produces too many death sentences at trial and then throws most 
of them out.

At trial, almost all of the incentives conspire to generate death sentences. 
Prosecutors and judges tend to be elected, and they reap political benefits 
from appearing tough on crime. Defense lawyers tend to be appointed, underpaid 
and overmatched. People with qualms about the death penalty are not allowed to 
serve on capital juries.

It is only on the back end — on appeal and in other post-conviction proceedings 
— that the legal system, at great length and expense, starts to examine 
seriously whether particular death sentences were actually warranted.

A system that takes 33 years to issue a final decision about whether a 
defendant should live or die would seem to be broken.

“The incentives driving the nation’s process of imposing and reviewing death 
sentences,” Professor Liebman wrote, “are skewed from stem to stern.”

(source: New York Times)

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

Supreme Court to take another look at prosecutorial misconduct


Prosecutors, says Angela Davis, former head of the D.C. public defenders 
office, “are the most powerful officials in our criminal justice system.” 
Davis, a professor at American University’s Washington College of Law, 
explains:

“They decide whether a person’s going to be charged, what to charge them with, 
whether there’s going to be a plea bargain and what the plea bargain will be. 
As they make those decisions, they exercise almost boundless discretion.”

That combination of power and discretion, she said, “can and has led to abuse.”

It’s an issue of perpetual interest at the Supreme Court. Next week, the court 
will hear a case in which a Louisiana death row inmate alleges that prosecutors 
withheld information that would have cast doubt on the eyewitness account that 
led to his conviction.

The case from New Orleans concerns prosecutors who worked for former district 
attorney Harry Connick Sr., who left office in 2003.

If that sounds familiar, it is because Connick and his office were at the 
center of last term’s big decision about prosecutorial misconduct. In that 
controversial 5-to-4 decision, the court stripped a $14 million award from John 
Thompson, who spent 14 years on death row after prosecutors withheld evidence 
that showed his innocence.

The court has long agreed that individual prosecutors should be protected from 
civil liability so that they may freely pursue criminals. However, Thompson had 
convinced a jury that Connick’s office should be held accountable for not 
properly training staff about the duty prosecutors have to turn over evidence 
favorable to the defense.

But Justice Clarence Thomas, joined by the court’s other conservatives, said 
Thompson did not meet the high standard of showing a pattern of “deliberate 
indifference” on Connick’s part.

Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her 
dissent from the bench, saying she would have upheld the award against 
Connick’s office for the “gross, deliberately indifferent and long-continuing 
violation of (Thompson’s) fair trial right.”

Barry Scheck, co-director of the Innocence Project, said the court’s decision 
in Connick v. Thompson made it clear that civil remedies are not a viable 
option for those trying to stop prosecutorial misconduct.

He, Thompson and others were part of a group of “innocence advocates” who last 
week proposed a national dialogue with prosecutors to try to find other ways to 
investigate and sanction prosecutors who break the rules.

Santa Clara University law professor Kathleen Ridolfi said the group needs to 
find a way around “a system where the Supreme Court refuses to hold prosecutors 
accountable, even for repeated, deliberate misconduct.”

The new case, Smith v. Cain , is not about punishing prosecutors. It is about 
whether withholding evidence should mean a new trial for Juan Smith, who 
prosecutors said was involved in a gangland-style shooting that left five dead. 
Prosecutors have an obligation under a nearly 50-year-old Supreme Court 
precedent in Brady v. Maryland to turn over any evidence material to a 
defendant’s guilt or punishment.

The case is expected to be determined by its specific facts rather than the 
potential for a new examination of Brady. It also seems not coincidental that 
it involves New Orleans prosecutors.

Smith’s lawyers point out that courts have overturned 4 death sentences from 
Orleans Parish because of violations of the Brady rules, and they say 8 other 
non-capital cases have met the same fate.

The American Bar Association has asked the court to use the case to tell 
prosecutors that they have a greater obligation than simply meeting Brady 
requirements. The ABA says the court should mandate that prosecutors abide by 
ABA model rules that call for disclosure of any exculpatory evidence, whether 
it is determined to be material or not.

The National District Attorneys Association replied that the ABA is nothing but 
a private association of lawyers that consistently takes the side of criminal 
defendants. The regulation of prosecutors, it says, “is appropriately left to 
the individual states.”

Such sensitivity is why Scheck and others at a news conference last week took 
pains to say they believe only a small slice of prosecutors have committed 
misconduct. He said he was generally advised, “?‘Don’t go around the country 
pillorying prosecutors and giving the impression that what happened in John 
Thompson’s case is happening across the board in an epidemic.’?”

He added: “ We’re not saying that.”

(source: Washington Post)

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

Death penalty in U.S.


Contrary to what some people might think, the death penalty is not immoral. 
Taking the life of another person deserves a greater punishment than 
incarceration, and by executing the ones responsible it prevents them from 
repeating the same crime.

It is wrong for us to simply imprison someone for murder, when the same 
punishment is being handed out for much lesser crimes. A human life is much 
more valuable than any material item.

Locking murderers up in an air-conditioned facility, giving them 3 meals a day, 
personal recreation time and family visits is a “slap in the face of morality,” 
says Casey Carmical, author of Ethics of Capital Punishment.

Some will claim that the death penalty is in violation of the Eighth Amendment, 
but it is not. To claim that cruel and unusual punishment references the death 
penalty would be ridiculous.

Sydney Buckley----Lee’s Summit

(source: Letter to the Editor, Kansas City Star)