[Deathpenalty] death penalty news----USA

[Rick Halperin]

March 24



USA:

How Drug Manufacturers Are Impacting The Death Penalty Debate



Polls generally show that the majority of Americans are on board with the death 
penalty. In October 2014, Gallup reported that 63 % of Americans were in favor 
of capital punishment while 33 % were opposed.

But when it comes to carrying out executions in recent years, the vote of 1 
group of individuals - drug manufacturers - has begun to hold more sway.

Public pressure on drug manufacturers to stop selling the chemicals coupled 
with some companies' opposition to the practice has cut off supplies, leading 
to shortages of the drugs used in lethal injections. Now, several states 
scrambling to figure out if and how they'll be able to be able to go ahead with 
scheduled executions.

Why Manufacturers Matter

Lethal injection became the standard of executions about 33 years ago, after it 
was widely accepted as more humane than firing squad, the electric chair or 
hanging.

Most states use a deadly combo of 3 drugs - 1 sedative, 1 muscle relaxer and 1 
heart-stopping drug. But other states have used a 1-drug method of a 
barbiturate that's administered as an overdose.

But scrutiny of lethal injections started gaining steam in 2005, when a study 
reported that it was possible inmates were experiencing extreme pain during 
executions. Then in 2006, 1 inmate in Florida took 35 minutes to die after 
being given his lethal dose, raising new questions about the cruelty of the 
practice. Since then, several other botched executions have dispelled the idea 
that injections were full-proof and peaceful.

Then in about 2011, the bans started. First the EU clamped down on exports of 
drugs used for capital punishment. The same year, Hospira, the only U.S. 
company that sold a sedative used in lethal injections, sodium thiopental, 
announced it would stop selling the drug after its Italian plant refused to 
manufacture it.

Afterwards, states began switching to another sedative - pentobarbital. But 
then its Danish manufacturer, Lundbeck, discovered it was being used in lethal 
injections and banned its sale to U.S. correctional facilities. States then 
turned to a different sedative - midazolam - and again, its manufacturer in 
Illinois, Akorn, announced a few weeks ago it would stop selling the drug to 
correctional facilities.

With big pharma putting the squeeze on states to reconsider their options, many 
have turned to smaller drug compounding companies - but now in some cases, 
they're becoming an unreliable source. Pentobarbital is the key drug Texas has 
run out of, either because compounding pharmacies won't sell it or because 
they're struggling to get the raw ingredients needed.

The smaller compounding pharmacies are also operating with the threat of being 
outed as a lethal drug injection maker could expose them to public condemnation 
- making one wonder how much longer they'll choose to stay in the market.

So, now what?

Will The Future Lead to The Past?

In a twist that has got to have abolitionists wincing, instead of states 
choosing to consider ending executions in light of drug shortages, many might 
revert to old methods.

A few weeks ago, Alabama's House of Representatives voted to use the electric 
chair if they can't secure a supply of new drugs. Virginia and Tennessee are 
also considering electrocution, while Oklahoma is discussing the gas chamber.

Texas was recently down to its last dose of the lethal cocktail, leaving 
hundreds of death-row inmates waiting to find out what the future holds.

Meanwhile, a lack of drugs in Utah has prompted legislators to approve bringing 
back execution by firing squad.

It's likely an unintended consequence of cutting off the drug supply - but the 
situation has set off a fresh wave of debates that's likely to force many 
Americans to once again assess their comfort level with the sometimes gruesome 
realities of executions.

A firing squad chamber.

After the fire squad bill was introduced in Utah a few weeks ago, Gov. Gary 
Herbert, a Republican, received hundreds of messages urging him to veto it. 
(Today he announced that he'd sign the bill into law anyway.)

The move shows that for now, when it comes to executions, many states may just 
change course, rather than abandon it. But with more than 3,000 prisoners on 
death row, how long will Americans be able to stomach hearing about inmates 
dying from firing squads and electric chairs?

And even though the death penalty isn't going anywhere yet, many believe that 
being cut off by drug manufacturers has contributed to a slowdown in executions 
nationwide.

In almost every year since 2009 - which is about when drug shortages started to 
become a problem in many states - the number of executions in the U.S. has 
dropped. In 2009, America executed 52 prisoners, and by 2014, the number was 
down to 35. Which begs the questions: Will the pressure from manufacturers 
spawn a new moment of reckoning for Americans? At some point, will the slowdown 
related to drug manufacturers help bring executions to an end?

As the story unfolds in the coming weeks, drug manufacturers will continue to 
play their role in how the 32 states that allow the death penalty choose to 
proceed. While this latest shortage may not mean that manufacturers have the 
final say in the matter, their actions are clearly helping to steer the 
conversation.

(source: manufacturing.net)

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

5 Death Penalty Cases Tainted by Racism----From race-baiting prosecutors to 
Confederate courthouse displays.



The intersection of race and justice on the street has loomed in the headlines 
this past year or 2, with racially charged killings - Trayvon Martin, Michael 
Brown, Eric Garner, and Tamir Rice, among others - sparking widespread protests 
and highlighting stark police biases: A recent Justice Department 
investigation, for instance, found that blacks in Ferguson, Missouri, accounted 
for an overwhelming majority of traffic stops, traffic tickets, and arrests 
over a 2-year period - nearly everyone who got a jaywalking ticket was black. 
When black drivers were pulled over in Ferguson, the DOJ found, they were 
searched at twice the rate of white drivers.

Racism in the courtroom has received far less attention recently. Yet it is 
virtually impossible to walk into a courthouse anywhere in the United States 
without seeing its impact. The prejudice is seldom overt these days; you'll 
find it reflected instead in the underfunded, undertrained, overworked, and 
sometimes incompetent lawyers appointed by the courts to represent criminal 
defendants who can't afford counsel. Even so, the fates of countless men and 
women - see my in-depth piece on the case of Kenneth Fults in Georgia - have 
been affected by plain, old-fashioned racism. Consider these 5 examples.

Watch your daughters

In 2005, Andre Thomas, a black man with a history of severe mental illness, was 
convicted and sentenced to death in Texas for killing his estranged wife (who 
was white) and her 2 children (1 of them his). To obtain the all-white jury 
that sentenced Thomas, prosecutors Kerye Ashmore and Joe Brown utilized an 
only-in-Texas procedure called a "shuffle," which eliminated most of the 
potential black jurors from consideration.

In a jury questionnaire, 4 white prospective jurors indicated their opposition 
to miscegenation - 1 man emphasized that he "vigorously" opposed people of 
different racial backgrounds marrying and/or having children and was "not 
afraid to say so," and further wrote on the questionnaire: "I don't believe God 
intended for this." Court-appointed defender R.J. Hagood, who had the responses 
in front of him, neglected to question or challenge these jurors, all of whom 
ultimately sat in judgment of his client.

During closing arguments, prosecutor Ashmore gave the jury this loaded 
ultimatum: "Are you going to take the risk about him asking your daughter out, 
or your granddaughter out? After watching the string of girls that came up here 
and apparently could talk him into - that he could talk into being with him, 
are you going to take that chance?"

Thomas remains on death row.

King Kong and the "blond lady"

In 2000, Johnny Bennett, a black man, was sentenced to death in South Carolina 
for stabbing and killing a friend. During the trial's sentencing phase, 
prosecutor Donald Myers spent a great deal of time talking about Bennett's 
conviction, a dozen years earlier, for a cross-racial assault.

The prosecutor offered a not-so-subtle reminder to the all-white jury that the 
defendant had dated a white woman.

He called to the stand one of the victims, who testified that he'd dreamed 
"black Indians" were chasing him. Myers himself referred to Bennett as "King 
Kong" and a "beast of burden," and elicited from another witness that Bennett's 
prior girlfriend had been "a blond lady" - a not-so-subtle reminder to the 
all-white jury that the defendant had dated a white woman.

The state Supreme Court would later rule that the black Indians reference 
"merely described" the victim's "emotional injury." It recognized that the 
blond lady and King Kong references could have racial connotations, but the key 
question was whether these comments "so infected the trial with unfairness" as 
to taint the verdict - and they did not, the court determined.

1 juror, asked later what he thought might have prompted Bennett's seemingly 
motiveless crime, responded: "Because he was just a dumb nigger."

Bennett remains on death row.

"Offensive to some"

Felton Dorsey was convicted of murder and sentenced to death in 2009 in Caddo 
Parish, Louisiana. Dorsey complained that the courthouse, located in 
Shreveport, had created a racist atmosphere by maintaining a Confederate flag 
memorial on its grounds.

1 prospective juror indicated that he could not serve in a courthouse with a 
Confederate display.

The flag, his lawyers argued, was placed there to remind anyone entering of an 
era when the lynching and enslavement of blacks was permitted by law. Indeed, 1 
prospective juror indicated that he could not serve in a courthouse with a 
Confederate display nearby.

The state Supreme Court rejected Dorsey's claim, concluding that, while the 
display might be "offensive to some," his lawyers didn't object at the time of 
the trial, so the claim was improperly before the court. The judges also 
rejected a statistical claim offered by the Louisiana Association of Criminal 
Defense Lawyers, which had studied 120 jury trials over a 12-year period and 
determined that Caddo Parish prosecutors dismissed black jurors at more than 
triple the rate of white jurors.

2 months after the Dorsey ruling, Caddo Parish commissioners voted 11-1 to 
remove the Confederate flag.

Dorsey remains on death row.

"They deal crack over there"

Victor Walther was one of 12 white jurors who sentenced a black man, Gary 
Sterling, to death in 1989 for murdering a white man in the course of a 
robbery. Robert Dunn, Sterling's lawyer, had known Walther for decades and knew 
he "probably" was a racist. In fact, Walther subsequently provided an affidavit 
during Sterling's postconviction proceedings that left little doubt about his 
sentiments:

There are some niggers who live [a] couple blocks over. They deal crack over 
there. Sometimes those niggers will start hollering and cursing. And pretty 
soon they'll start shooting. One of them stays in jail all the time. He'll be 
in jail a few days and then he'll be right back out. A couple of 'em shot each 
other last Juneteenth over a card game.

Yet at the trial, attorney Dunn never asked the jurors about their racial 
attitudes, explaining later that he didn't think they would answer the 
questions honestly. It's hard not to question his rationale, given that Dunn 
himself was faulted in another case for calling his Salvadoran client a 
"wetback" in front of the jury. The 5th Circuit ruled that Dunn's failure to 
question Walther on his racial views did not fall "outside the wide range of 
reasonable strategic professional assistance."

Sterling was executed in 2005.

Racist representation

Demetrie Mayfield received a death sentence in California for killing a 
neighbor and her companion in 1983. He later alleged that his attorney, S. 
Donald Ames, had failed to represent him properly because of his race. There 
was compelling evidence that Ames was a virulent racist. As one of his own 
daughters put it:

"His contempt for us was exceeded only by his contempt for people of other 
races and ethnic groups."

His contempt for us [his family] was exceeded only by his contempt for people 
of other races and ethnic groups. He especially ridiculed black people, 
referring to them with racial invectives. He used such terms and phrases as 
"nigger," "schwartze," "jig," "jungle bunnies," "trigger the nigger," and 
"shoot the coon to the moon."

Ames' former secretary, a superior court employee, and an investigator all 
confirmed his frequent use of racial epithets to describe clients, lawyers, and 
secretaries. But the 9th Circuit Court of Appeals was unmoved. The judges noted 
that Ames' racial animus was not aimed specifically at Mayfield, and that any 
prejudice Mayfield suffered could not be traced directly to his lawyer's hatred 
of blacks.

The court did, however, find that Mayfield deserved a new sentencing because 
Ames, whom he first met on the morning of his trial, had not provided adequate 
representation.

Mayfield is still in prison, but no longer on death row.

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

"That's What That N----- Deserved; A prejudiced juror, a racist lawyer, and a 
death sentence no court is willing to reconsider.



"The one place where a man ought to get a square deal is in a courtroom, be he 
any color of the rainbow, but people have a way of carrying their resentments 
right into a jury box." - Lawyer Atticus Finch in Harper Lee's To Kill A 
Mockingbird

In April 2005, nearly 8 years after Kenneth Fults was sentenced to death for 
kidnapping and murdering his neighbor Cathy Bounds in Spalding County, Georgia, 
1 of the trial jurors made a startling admission under oath: He'd voted for the 
death penalty, he said, because "that's what that nigger deserved."

It shouldn't come as too much of a surprise, given the circumstances - a black 
man admitting to the murder of a white woman in the deep South -that some white 
jurors might secretly harbor racist views. The surprising part was that this 
juror, Thomas Buffington, came right out and said it. And what should have been 
the most surprising development of all (alas, it wasn't) came this past August, 
when a federal appeals court, presented with ample evidence, refused to 
consider how racism might have affected Fults' fate.

In fact, state and federal courts have routinely avoided the evidence and 
consequences of racism in the criminal-justice system. (See "5 Death Penalty 
Cases Tainted by Racism.") Consider one of the most famous examples, the 1987 
Supreme Court case of McCleskey v. Kemp, in which lawyers for Warren McCleskey, 
a black man sentenced to death for killing a white police officer, presented 
statistics from more than 2,000 Georgia murder cases. The data demonstrated a 
clear bias against black defendants whose victims were white: When both killer 
and victim were black, only 1 % of the cases resulted in a death sentence. When 
the killer was black and the victim white, 22 % were sentenced to death - more 
than 7 times the rate for when the races were reversed.

Prosecutors sought death for black defendants in 70 % of murder cases with 
white victims, but just 15 % of cases in which the victim was black.

It wasn't just jurors who were biased. Prosecutors sought the death penalty for 
black defendants in 70 % of murder cases when the victim was white, but only 15 
% when the victim was black.

The Supreme Court was less than impressed with all of this. Justice Lewis 
Powell, in a 5-4 majority opinion he would later call his greatest regret on 
the bench, wrote that McCleskey could not prove that "the decisionmakers in his 
case acted with discriminatory purpose." In short, evidence of systemic racial 
bias had no relevance in individual cases. Further on, Powell got down to his 
true concern: "McCleskey's claim, taken to its logical conclusion, throws into 
serious question the principles that underlie our entire criminal justice 
system."

Justice William Brennan dissented with one of the most memorable statements of 
his iconic career: "Taken on its face, such a statement seems to suggest a fear 
of too much justice." He went on: "The prospect that there may be more 
widespread abuse than McCleskey documents may be dismaying, but it does not 
justify complete abdication of our judicial role."

Georgia executed McCleskey in 1991, but the McCleskey rationale - which the New 
York Times labeled the "impossible burden" of proving that racial animus 
motivated any particular prosecutor, judge, or jury - has been used by dozens 
of courts to reject statistical claims of discrimination in capital cases, even 
though today's numbers are not much better.

The Fults case was different, though. Here was an actual juror explaining his 
decision to impose the death sentence through a blatantly racist lens. It was 
precisely the sort of evidence the Supreme Court claimed was lacking in the 
McCleskey case. So why has Kenneth Fults not been granted a new sentencing?

Fults during a prison visit with his son

Justice Powell's concerns are understandable. After all, what part of the 
criminal-justice system is untouched by racism? Some death penalty critics, in 
fact, view capital punishment as a direct descendent of lynching. The phrase 
"legal lynching" first appeared in the New York Times during the infamous 1931 
Scottsboro Boys trials, in which nine black youths were charged with raping 2 
white women in Alabama. Their lack of counsel, coupled with the explicit 
exclusion of black jurors, led the Supreme Court to intercede twice and reverse 
convictions.

It's hard to read those opinions today without feeling a sense of horror. 
Within 2 weeks of the alleged crime, eight of the 9 young men had been 
sentenced to death in 3 separate trials by the same jury. Although there was no 
shortage of black men in Scottsboro County who were legally eligible to serve 
on juries, there was no record of any of them ever serving on one. Perhaps most 
remarkably, none of the defendants had a lawyer appointed to represent him 
until the morning of trial. In 2013, more than 80 years after the arrests, the 
Alabama Board of Pardons and Paroles posthumously pardoned the 3 Scottsboro 
Boys whose convictions still stood.

Do "not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race 
on a jury, no matter how rich or well educated," reads a 1963 Dallas 
prosecution manual.

We have not come nearly as far from these outrages as you might think. People 
of color are still dramatically underrepresented on juries and grand juries, 
even though excluding people based on race is illegal and undermines "public 
confidence in our system of justice," as the Supreme Court put it in 1986. 
Prospective black jurors are routinely dismissed at higher rates than whites. 
The law simply requires some rationale other than skin color.

"Question them at length," a prominent Philadelphia prosecutor suggested to his 
proteges after the Supreme Court banned race as a reason for striking jurors. 
"Mark something down that you can articulate at a later time." For instance, a 
lawyer might say, "Well, the woman had a kid about the same age as the 
defendant, and I thought she'd be sympathetic to him."

In 2005, a former prosecutor in Texas revealed that her superiors had 
instructed her, if she wanted to strike a black juror, to falsely claim that 
she'd seen the person sleeping. This was just a dressed-up version of the 
Dallas prosecution training manual from 1963, which directed assistant district 
attorneys to "not take Jews, Negroes, Dagos, Mexicans, or a member of any 
minority race on a jury, no matter how rich or how well educated."

The 1969 edition of the manual, used into the 1980s, promoted a more subtle 
brand of stereotyping, noting that it was "not advisable to select potential 
jurors with multiple gold chains around their necks." But it hardly mattered: 
Overt, covert, or in between - the result was the same.

North Carolina prosecutors were striking black jurors at twice the rate of 
whites; the odds of that being race-neutral were less than 1 in 10 trillion.

Virtually every state with a death penalty has dealt with accusations that 
black jurors have been improperly kept off juries. During the 1992 death 
penalty trial of a defendant named George Williams, for example, a California 
prosecutor dismissed the 1st 5 black women in the jury box. "Sometimes you get 
a feel for a person," he explained, "that you just know that they can't impose 
it based upon the nature of the way that they say something." The judge went 
even further, noting that "black women are very reluctant to impose the death 
penalty; they find it very difficult." In 2013, the California Supreme Court 
ruled that these jury strikes were not race-based, and deemed the judge's 
statement "isolated." Williams remains on death row.

After North Carolina passed its Racial Justice Act, a 2009 law that let inmates 
challenge death sentences based on racial bias, a state court determined that 
prosecutors were dismissing black jurors at twice the rate of other jurors. The 
probability of this being a race-neutral fluke, according to 2 professors from 
Michigan State University, was less than 1 in 10 trillion; even the state's 
expert agreed that the disparity was statistically significant. Based on these 
numbers, the court vacated the death sentences of three inmates and resentenced 
each to life without parole. 6 months later, the state legislature repealed the 
Racial Justice Act.

Perhaps You're Still wondering, despite all of the above, how Thomas Buffington 
ended up on the Fults jury.

The answer is simple. He lied:

Defense attorney: Do you have any racial prejudice resting on your mind?

Buffington: No, sir.

Defense attorney: Does it make any difference that in this case the defendant 
is black and the victim was white?

Buffington: No, sir.

Even this sort of cursory questioning wasn't required by the Supreme Court 
until 1986, and then only in capital cases - and when the defense requests it. 
In order to function, the justice system has to presume that jurors will tell 
the truth under oath, just as it presumes lawyers are competent.

And what of the lawyers' role? Since 1976, when mandatory death sentences were 
ruled unconstitutional, the decision of whether to seek execution has rested 
entirely with the local district attorney. In practice, this means a white man 
usually gets to decide who should face the death chamber. A 2009 study found 
that more than 85 % of chief prosecutors in the United States were white, and 
the majority were male.

Prosecutor William McBroom wasn't the type to fret over moral ambiguities: He 
sought death sentences at every opportunity.

In the Fults case, that white man was William McBroom, district attorney of the 
Griffin Judicial Circuit. McBroom had already put two men on death row by the 
time he prosecuted Fults, and continued to aggressively seek and obtain death 
verdicts until 2004, when he lost his reelection by a hair. He wasn't the type 
to fret over moral ambiguities: McBroom sought death sentences at every 
opportunity, thereby avoiding allegations of discrimination in the charging 
process.

His tough approach found an unlikely ally in Johnny Mostiler, the Spalding 
County public defender, who happened to be representing Kenneth Fults. "We're 
finding ourselves facing crimes we think are Atlanta big-city crimes," Mostiler 
proclaimed at one point. "We're a law-abiding town. We want our criminals 
prosecuted."

McBroom and Mostiler knew each other so well that the Fults transcript 
sometimes reads like old friends reminiscing: McBroom points out how Mostiler 
is going to respond, mentions an argument his rival made in an earlier case, 
and refers to him by first name before handing over the floor for closing 
arguments. "Mostiler was the toughest trial lawyer in Spalding County," McBroom 
recalled some years after the Fults trial. "He would take cases where you 
didn't think defendants had a chance, and you'd be fighting for your life."

He had every reason to praise Mostiler. A death verdict is invariably followed 
by appeals in which the defense attorney's work comes under close scrutiny. 
Prosecutors routinely hail their adversaries as giants in the field of capital 
defense to make it harder for any defendant to claim his lawyer was 
incompetent. And McBroom, who had obtained death verdicts against Mostiler in 
several prior cases, needed to defend some deplorable behavior: For all intents 
and purposes, Johnny Mostiler, like Thomas Buffington, was a racist.

Spalding County, 40 miles south of Atlanta, has but a single public defender to 
represent criminal defendants who can't afford an attorney - and a great 
majority cannot. All through the 1990s, Mostiler was that defender, responsible 
for handling as many as 900 felonies a year. He also maintained a significant 
civil practice on the side and took on serious felony cases outside of Spalding 
County. But he was hardly your humble, nose to the grindstone type. According 
to a 2001 profile in The American Prospect, he stood out in a black cowboy hat; 
a silver beard with handlebar mustache; 6 gold, silver, and onyx rings; and 
three gold bracelets. He also drove a mustard-green 1972 Cadillac El Dorado 
convertible - with cattle horns as a hood ornament.

Clients and fellow lawyers recalled Fults' defense attorney using the N-word. 
Of one client, he allegedly said: "That little nigger deserves the chair."

But Mostiler's true legacy - he died of a heart attack a few years after the 
Fults trial - involved the case of his former client Curtis Osborne, who was 
tried in 1991, found guilty of murder, and finally scheduled for execution in 
2008. As the clock wound down on Osborne's appeals, a former US attorney 
general, a former Georgia chief justice, and former President Jimmy Carter 
(previously the governor of Georgia) all spoke out against the execution. They 
had heard the allegation by another one of Mostiler's clients, a white man 
named Gerald Huey, that Mostiler had told him, speaking of Osborne, that "that 
little nigger deserves the chair."

Some time later, a Georgia lawyer named Arleen Evans stepped forward with a 
sworn recollection about Mostiler's personal conduct:

I recall 1 occasion when I was in the lawyer's lounge at the Spalding County 
Courthouse. There were a number of other lawyers there including Mr. Mostiler. 
Mr. Mostiler began telling racist jokes filled with racial epithets like 
"nigger." Some of the lawyers would laugh. Some would laugh nervously. Some 
would try to ignore it. And others would leave the room to get away from it. On 
another occasion, I remember walking into the lawyer's lounge and Mr. Mostiler 
was again telling racist jokes. Ms. Nancy Bradford, who is now deceased, looked 
at me, noticed that it was making me uncomfortable, and told me "that's just 
Johnny."

Osborne's lawyers soon dug up yet more evidence: a transcript from the trial of 
Derrick Middlebrooks, a black defendant who was so troubled by the racist talk 
that he asked the judge to dismiss Mostiler as his public defender: "He 
indicated to me that he wouldn't - he couldn't go up there among them niggers 
because them niggers would kill him," Middlebrooks said. "Now personally I 
don't know if he meant anything really by it. But I find it, you know, kind of 
hard to have an attorney to represent me when he uses those type of words. It 
doesn't help my confidence in my attorney."

"I honestly don't remember," Mostiler responded when the judge asked him about 
it. "I don't use those terms out in public. And I probably - if I did use it I 
certainly am sorry. I didn't mean to indicate that it was any - or any racial 
overtones. I think my - I think my record on race is..."

"Well documented in this court," the judge interjected.

Mostiler was long dead by the time his racist language became an issue in the 
Osborne case, but several prosecutors, including McBroom and his successor, 
District Attorney Scott Ballard, spoke up in his behalf. Mostiler had presented 
a "very adequate defense" of Curtis Osborne, Ballard argued. He urged that the 
execution go forward.

Small counties tend to have incestuous legal communities. Public defenders and 
assistant district attorneys often swap sides and socialize together too; top 
assistants become bosses, and, most predictably, district attorneys end up on 
the bench. Such was the case with Johnnie Caldwell, Fults' trial judge.

Caldwell had preceded McBroom as district attorney of the Griffin Judicial 
Circuit. As both a prosecutor and a judge, Caldwell was well aware of the 
racism allegations surrounding Mostiler. It was he, in fact, who had heard 
Middlebrooks' claim and used the opportunity to assure the public defender, 
saying: "It's unchallenged in this court with your actions concerning the races 
and certainly of standing up for the rights of all individuals regardless of 
their race or color or religious preference." Turning to Middlebrooks, he 
added: "I find nothing in Mr. Mostiler's conduct of this trial or in 
representing you that would cause me to disqualify him."

"I find nothing in Mr. Mostiler's conduct of this trial or in representing you 
that would cause me to disqualify him."

By suggesting that the public defender of Spalding County???a man hired year 
after year by the county commissioners - was a racist, Middlebrooks had also, 
unwittingly, impugned the dignity of the prosecutor and the presiding judge. 
Caldwell was clearly put out:

Middlebrooks: My motion for a new attorney is denied?

Caldwell: Yes, sir.

Middlebrooks: Okay. Thank you.

Caldwell: And I know you're sitting over there reading a book on ineffective 
assistance of counsel, you read it real well and write everything down, okay.

Middlebrooks: Yes, sir.

Caldwell: I'm directing you to. You write everything down and you write it 
well. You've been reading that book ever since you've been sitting over there.

Middlebrooks: Judge, that has-

Caldwell: Sir, don't say anything else.

Middlebrooks: Yes, sir.

When race became an issue in the Osborne case, Caldwell didn't step forward to 
disclose his interactions with Mostiler, nor did any of those other lawyers in 
the lounge, who had certainly heard the same racist jokes and comments Arleen 
Evans had. (Caldwell had his own problems: He resigned his judgeship in 2010 in 
light of allegations that he was soliciting female attorneys in open court. He 
was nonetheless elected, soon after, to the Georgia Legislature.)

Ultimately, neither local nor federal courts were moved by the consistency of 
the race testimony. In 2006, the 11th Circuit Court of Appeals soundly rejected 
Osborne's claim that Mostiler was ineffective due to racial animosity. (Osborne 
was executed two years later.) Citing McCleskey, the court said it was the 
racial animus of the decision makers???the prosecutors and the jurors, not the 
defense attorney - that mattered.

So what would the same court say 8 years later, when lawyers for Kenneth Fults 
came before it with claims of racial animus involving a decision maker, the 
juror Thomas Buffington?

In September 2013, a 3-judge panel of the 11th Circuit Court of Appeals 
convened in Miami to hear Fults' claim. Half of their questions focused on 
legal hurdles, such as procedural default, cause and prejudice, impeachment of 
the verdict, and waiver. The other half dealt with the inexcusable nature of 
Buffington's admission. The state wanted the court to reject Fults' bias claim 
on a procedural technicality involving the rules of evidence, and Adalberto 
Jordan, the most outspoken of the judges, was struggling to understand why.

"When you have a claim of a juror potentially recommending a sentence of death 
because of flat-out racial bias," Jordan asked, "why would the state of Georgia 
not want that claim heard on the merits?"

Assistant Attorney General Sabrina Graham insisted that Georgia law was clear 
on the issue. A verdict could not be reversed based on jury deliberations, no 
matter what any juror had to say about them afterward. In the process, she 
spent some awkward moments trying to persuade Jordan and Judge Stanley Marcus 
that what Buffington said wasn't as damning as it sounded.

Graham: I think there could not be any prejudice.

Marcus: Tell me why there wouldn't be prejudice, if in fact the juror was 
tainted with racism that affected his decision-making process?

Graham: I don't think you would have enough information to show that. Certainly 
Mr. Buffington uses a racially derogatory term. I do not think that his 
particular affidavit shows that he sentenced Mr. Fults to death based upon his 
racism. People have many prejudices -

Jordan: "I knew I would vote for the death penalty because that's what that 
nigger deserved." You want something more specific than that?

Graham: I think you do want something more specific.

Jordan: Like?

Graham: That was 8 years after -

Jordan: Like? Like what?

Graham: Like "I sentenced him to death based upon his race -

Marcus: Let's suppose, just to take this to its logical conclusion, that there 
were 12 affidavits from all 12 jurors who voted for death, and each and every 
one of them said the same thing ... Even if every juror says, "I voted to 
execute him because he was black," you say, "That's the law"? Graham: That is 
the law.

That's when Jordan, seemingly surprised by Graham's answer, suggested that 
there was a "safety valve under Georgia law." That is, if an evidentiary rule 
resulted in a violation of a defendant's constitutional rights, it might 
justify an exception to that rule.

Graham conceded that such a ruling might be possible. "They have left that 
possibility open, but they have never actually done anything about it." She 
then pointed out that there are many reasons to trust a juror's answers during 
jury selection rather than statements the juror might make after a verdict of 
death is returned: "Fine, you want to say Mr. Buffington lied during voir dire. 
[But] you have the trial court, and you have defense counsel all watching these 
jurors."

She was suggesting, in essence, that Johnny Mostiler, who had been accused of 
racism more than once, and Judge Caldwell, who'd belittled the claim of racism 
against Mostiler before being removed from the bench for harassing women in his 
own court, were suitable watchdogs to ensure an impartial jury. Was it possible 
she didn't realize who they were?

The 11th Circuit was not entirely unfamiliar with juror bias. Back in 1986, a 
man named Daniel Neal Heller had been convicted of tax evasion in Florida. 
Evidence showed that Heller, a Jewish man, was the butt of anti-Semitic jokes 
in the jury room that consistently prompted "gales of laughter." The trial 
judge, when confronted by vague claims of discriminatory comments by the jury, 
cursorily asked each juror if he or she was "affected by prejudice." The 11th 
Circuit's three-judge panel reversed Heller's conviction, writing that the 
jurors' religious prejudice was "shocking to the conscience," and concluding: 
"The people cannot be expected to respect their judicial system if its judges 
do not, first, do so."

The judges hearing the Fults case seemed to have forgotten the lessons of 
Heller. Despite their pointed questioning during oral arguments, the opinion 
they released 11 months later expressed neither shocked consciences nor fear of 
diminished respect for the system. If they were offended by Buffington's 
admission, it was lost amid all of the procedural arcana.

The prevailing narrative about legal technicalities is that they open jailhouse 
doors. Quite the opposite.

The prevailing narrative about legal technicalities, thanks to Hollywood 
portrayals and posturing politicians, is that they open jailhouse doors - which 
is one reason crime sometimes seems to be on the rise when in fact it is 
plummeting. In reality, though, legal technicalities are far more often used to 
preclude people from having their postconviction claims heard. The Fults 
opinion, written by the outspoken Judge Jordan, is a virtual primer on how the 
law has evolved to block, rather than illuminate, allegations of injustice.

During oral arguments, Jordan seemed to be advocating a hearing to determine 
the circumstances of Buffington's admission. In his opinion, however, he 
condemned the defense for failing to provide sufficient detail about how or 
when Buffington's prejudice was discovered. While he had earlier questioned why 
Georgia didn't want a claim of "flat-out racial bias" heard on its merits, his 
opinion articulated every reason the claim had not been properly presented, and 
now could not be considered.

Finally, "in an abundance of caution," he addressed the argument he seemed to 
be championing 11 months earlier: that the failure to consider Fults' 
racial-prejudice claim would be a miscarriage of justice. Once again, Jordan 
felt compelled to explain that this claim had not been properly presented. In 
any case, he concluded that Fults had not shown that his sentence was a 
miscarriage of justice. For while it's true that in Georgia a single juror can 
stop a death sentence from being imposed - the jury has to be unanimous - the 
bar is much higher for a death row inmate seeking to overturn his sentence. 
Fults' legal burden was to demonstrate that no reasonable juror would have 
voted to give him the death penalty. And this, in the court's view, he had not 
done.

So how, exactly, does a "reasonable juror" think?

It's difficult to think of any decisions more subjective than who should live 
or die. Every death penalty state has a statute with language intended to 
objectify the determination, but when all is said and done, it's highly 
personal: Will the person be a danger in the future? Do the circumstances of 
the crime trump the defendant's background? Do the reasons for a life sentence 
outweigh those for a death sentence?

And how might this hypothetical reasonable juror regard Kenneth Fults? The man 
pleaded guilty to a horrible crime. He committed two burglaries and stole some 
handguns, all with the intention of killing a man involved with his former 
girlfriend. Instead, he ended up shooting a neighbor, Cathy Bounds, 5 times in 
the back of the head.

But, as the Supreme Court has pointed out, there are "potentially infinite" 
reasons a juror might want to sentence someone who has committed a heinous 
crime to something less than death. Kenneth Fults' history was packed with 
them.

"We stayed there alone without any adults watching over us so long that the 
power company had turned off all the utilities."

"I just lost sight of raising my kids," his mother, Juanita Wyatt, told a state 
court judge, explaining the result of her crack and alcohol addictions. She was 
court-martialed from the military for writing bad checks to buy drugs, moved 
her children from house to house and state to state, abused them with switches 
and belts and electrical cords - using the plug end when the cord itself ceased 
to have the necessary impact. Whatever boyfriend happened to be with her at the 
time often joined in. As for Kenneth's father, the man was no more than a name 
to him.

Kenneth's mother didn't just lose sight of raising her children - she lost 
sight of them entirely. His younger sister remembered how their mom had 
abandoned the kids after moving the family to Houston:

We stayed there alone without any adults watching over us so long that the 
power company had turned off all the utilities. We didn't have heat or lights; 
I don't remember if we had water. I don't remember how long we were alone ... I 
know it was at least a couple of months. I was really scared. Kenny and Michael 
tried to make it like it was fun and we were just camping out or something. I 
know they started stealing for us to have something to eat, because we did not 
have any money. I also remember that Michael had them dig a hole in the ground 
in the backyard to bury some of our food to try and keep it cold when our 
electricity was turned off.

Legally speaking, the most compelling reason not to sentence Fults to death is 
that he may be intellectually disabled. 3 separate IQ tests over a 16-year 
period, one of them seven years prior to the murder, all fall within the range 
for mental retardation. By 7th grade, Fults was testing near the bottom in 
basic skills. In eighth, he was placed in a "special class ... for slow 
learners." In that class, a former teacher recalled, Kenny was the "poorest 
performing student." There also was abundant testimony that he was incapable of 
keeping his money straight or filling out job applications. And as a child, he 
related to far younger children.

Even Judge Jordan, in rejecting Fults' claim of intellectual disability in the 
11th Circuit, acknowledged that his lawyers' argument was "not without some 
force." But again, procedural rules came into play: Since the state court had 
rejected the claim, its decision was presumed correct, and only "clear and 
convincing" evidence could overturn it. The IQ tests, the academic struggles, 
the affidavits of family members and teachers and friends detailing his 
"slowness," none of that was enough.

As for what a reasonable juror might have done with all of this information, 
we'll never know. Johnny Mostiler didn't present any of it to the jury.

Kenneth Fults has one last stop before his appeals run out. The likelihood that 
the US Supreme Court will review any matter is remote, but there could be a 
tiny sliver of hope for him in a civil case, Warger v. Shauers, that the court 
decided last December. On its face, the unanimous ruling seems as though it 
would be to Fults' detriment: Justice Sonia Sotomayor's majority opinion echoes 
what lawyer Sabrina Graham had argued on Georgia's behalf in the Fults case: 
that what a juror says later cannot be used to attack the verdict.

How do we know when we've crossed the line, when our justice system can't 
tolerate a result that its technical rules encourage?

You have to read the fine print, footnote No. 3 to be exact, to find the 
passage that could be Fults' saving grace: "There may be cases of juror bias so 
extreme that, almost by definition, the jury trial right has been abridged. If 
and when such a case arises, the Court can consider whether the usual 
safeguards are or are not sufficient to protect the integrity of the process."

As much as Georgia wants to make the case about a rule of evidence, it is not 
really about that at all. It is, instead, about Footnote No. 3, and that most 
extreme form of juror bias: sentencing a man to death based on racial 
hostility. And maybe it's also about how far we are willing to go, and how many 
procedural barriers we are willing to erect, to avoid dealing with the 
ramifications of such behavior.

How do we know when we've crossed the line, when our system of justice simply 
can't tolerate a result that its technical rules encourage? Here's Buffington's 
full statement: "That nigger got just what should have happened. Once he pled 
guilty, I knew I would vote for the death penalty because that's what that 
nigger deserved."

Racism doesn't get much clearer than that. Now it'll be up to the Supreme Court 
to decide whether the rules of evidence might, just this once, take a backseat 
to the principle that no man should be judged by the color of his skin.

(source for both: Marc Bookman, Mother Jones)

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

The Difficulty Of Picking A 'Death Qualified' Jury



The trial continues in Boston this week for the man accused in the bombing of 
the Boston Marathon. Dzhokhar Tsarnaev faces the death penalty for those 
crimes. And next month, a pre-trial hearing in Vermont will begin in the case 
of Donald Fell, who faces the death penalty for the murder of a Clarendon woman 
in 2000.

Neither Vermont nor Massachusetts are states that have the death penalty, but 
having a trial that could end with capital punishment in those states is not an 
uncommon occurrence.

"Some offenses are both state and federal offenses. And in those circumstances 
where there is concurrent jurisdiction in the state and federal systems, 
generally what happens is that the prosecutors in both systems get together and 
make a decision about who will prosecute the offense, and sometimes it's both," 
said Jessica West, director of the Experiential Advocacy Program and an 
associate professor at Vermont Law School.

Under the federal system there is a possibility of capital punishment. Both 
cases involve federal offenses as well as state offenses. The Tsarnaev case is 
considered an act of terrorism, which is a federal offense.

Donald Fell, meanwhile, was charged with committing the murder of Terry King, 
but before allegedly killing her he transported her from Vermont to New York, 
and West said that is the justification for a federal offense in that case, 
which makes Fell eligible for the death penalty. Fell also killed his mother 
and her friend earlier before kidnapping King from a parking lot. Fell's 
accomplice in the crime, Robert Lee, killed himself in prison before being 
tried.

Donald Fell is getting a second trial because one of the jurors went and 
visited the crime scene and told other jurors about his visit. West said the 
juror's actions were troubling because the judicial system controls the 
evidence that is presented, or not presented, to the jury. "In a circumstance 
where a juror, here Juror 143, goes out and visits a scene that juror can come 
back and provide additional information that's not able to be cross examined or 
refuted, or rebutted or weighed or balanced by the other jurors," West 
explained. "So it does in some circumstances, and did here, result in a new 
trial."

West said jurors are given instructions to follow, including not to decide or 
think about the case in a way of deciding the outcome until all of the evidence 
is presented. "Yet, social scientists will tell us that's not in fact the way 
the brain operates." West said it's clear in the Fell case, however that Judge 
William Sessions had instructed jurors not to try to collect their own 
information, and Juror 143 violated that in something that was more than just 
negligence.

The jury will need to decide for a second time whether Fell committed the 
crimes and they'll have to make another determination on sentencing. "I don't 
think they're going to have a hard time coming to a conclusion with regard to 
the guilt or innocence of Mr. Fell," West said. "But the issue of the 
appropriate penalty is probably one that they're going to struggle with all 
over again."

West said picking a jury in a death penalty case presents its own challenges, 
in part because they are difficult cases to sit on, and jurors are reluctant to 
do that, both because of the length of the trials, and because of the emotional 
weight of making a sentencing decision.

"It's one of the things that abolitionists, people opposed to the death penalty 
point to, is the burden on those people who need to decide, the burden on the 
system, those kind of issues," West explained. "In a place like Vermont where 
there isn't the death penalty, where there may be a number of people opposed to 
the death penalty, the system has a mechanism for weeding those people out. A 
jury in a death penalty case must be 'death qualified' meaning the could impose 
the death sentence."

If you are picking people who are willing to oppose the death penalty are they 
biased in favor of the death penalty? West said that argument is made all the 
time. "And it's true. They are biased in favor of conviction, and they are 
biased in favor of the death penalty. But the system doesn't know another way 
to navigate the fact that it wants to have a set of jurors who can and are able 
to impose the law."

(source: Vermont Public Radio)