[Deathpenalty] death penalty news----MO., OKLA., NeB., COLO., IDAHO, CALIF., USA

[Rick Halperin]

May 30


MISSOURI:

Missouri man accused of killing 10-year-old girl gets new judge



A new judge has been named to hear the trial of a man suspected of kidnapping 
and killing a 10-year-old Springfield girl.

Craig Wood is charged with kidnapping, rape and 1st-degree murder in the 
February 2014 death of Hailey Owens. Prosecutors say he grabbed her off the 
street as she walked home, sexually assaulted her and shot her in the head. Her 
body was found in Wood's home.

The 47-year-old defendant is scheduled to stand trial in Springfield in front 
of a Platte County jury.

The Springfield News-Leader reports that retiring judge Dan Conklin recused 
himself from the case this week, and the case has been assigned to Judge David 
Jones.

Prosecutors say they'll seek the death penalty if Wood is convicted. A trial 
date hasn't been set yet.

(source: Associated Press)

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

Nebraska abolishes death penalty



This editorial originally appeared in the St. Louis Post-Dispatch on May 25.

Last Wednesday, the same day the Missouri Supreme Court set a July 14 execution 
date for convicted murderer David Zink, Nebraska's single-house Legislature 
voted to abolish capital punishment.

Go figure.

The 2 states share a border, though admittedly a short one. They share 
Midwestern values, though admittedly Missouri's have turned pretty Deep South 
in recent years. They share conservative-dominated politics. Republicans have 
veto-proof majorities in both houses of the Missouri Legislature. Nebraska's 
Legislature officially is nonpartisan, but those who keep track say the 
49-member "uni-cam" has 35 Republicans, 13 Democrats and 1 independent.

And yet the unicam voted 30-13, with 17 Republican "ayes," to abolish the death 
penalty. It is largely a theoretical issue because the state hasn't executed 
anyone since 1997. There are 11 inmates on its death row.

Missouri has executed 56 men since 1997, including 10 in 2014 alone. That tied 
Missouri with Texas, which has 20 million more people, for the year's most. 2 
more execution dates have been set: June 9 for Richard Strong, 48, convicted of 
the stabbing deaths in St. Ann in 2000 of Eva Washington and her 2-year-old 
daughter, Zandrea Thomas. Zink's date comes up 5 weeks later. He was convicted 
of the 2001 abduction and strangulation of Amanda Morton, 19, of Strafford.

Clearly Nebraska's conservatives are a more enlightened breed than Missouri's.

Their case for opposing the death penalty is steeped in classical conservative 
theory about limiting the role of government. In floor debate, Sen. Colby 
Coash, R-Lincoln, said, "If any other system in our government was as 
ineffective and inefficient as is our death penalty, we conservatives would 
have gotten rid of it a long, long time ago."

"The death penalty fails to live up to a lot of conservative ideals," Marc 
Hyden, a coordinator with Conservatives Concerned About the Death Penalty, told 
the Wall Street Journal. "It's not pro-life, it's not limited-government, and 
it doesn't deter crime."

There's also the question of cost. A death penalty case carries about $1 
million more in long-term costs than a non-capital case.

None of this persuades Nebraska's Republican Gov. Pete Ricketts, who has vowed 
to veto the bill, even though there appears to be more than enough votes to 
override him.

2 weeks ago, Mr. Ricketts announced that the state had stocked up on the 
execution drugs it needed for the three-drug lethal-injection protocol that the 
state has never employed. In 1997, when Nebraska last executed anyone, it still 
used the electric chair.

Many states, including Missouri, have abandoned the three-drug process because 
no U.S. or European manufacturer will sell the drugs for use in capital 
punishment. Mr. Ricketts got his supply from India. He may have to eat the 
$51,000 cost if the unicam overrides his veto, or if federal courts block the 
use of Indian-made drugs, as has happened in other states.

There is simply no argument, from any place on the political spectrum, that 
capital punishment serves any purpose but satisfying an urge for revenge. That 
is not nothing, but neither is it justice. Missouri one day will realize that. 
The sooner the better.

(source: News-Leader Editorial Board

Daniel Norselli President and Publisher

Linda Ramey-Greiwe Director of Sales

Paul Berry Executive Editor

Cheryl Whitsitt Managing Editor

Sony Hocklander Engagement Editor)








OKLAHOMA:

Oklahoma voters to decide death penalty



Oklahoma voters will have an opportunity to weigh in on at least two issues 
during the 2016 next general election ??? whether the death penalty and if the 
right of citizens to farm and ranch should be enshrined in the state 
constitution.

Dozens of proposals were introduced in the Legislature this year to send a 
variety of issues to a public vote: issues including firearm regulations, 
restrictions on public office-holding and bond indebtedness. However, only 2 
made it all the way through the process and onto the ballot.

The 1st proposal, which passed overwhelmingly through the House and Senate on a 
bipartisan vote, seeks a public vote on amending the constitution to 
specifically state that the death penalty is not cruel and unusual and that the 
Legislature has the authority to designate various execution methods.

State Sen. Anthony Sykes, R-Moore, has said the goal of sending the proposal to 
a public vote is to have the people's will to enforce the death penalty 
protected in the state constitution.

But death penalty opponents say they fear its approval could prevent lawmakers 
in the future from ever abolishing the death penalty, like Nebraska's 
Republican-controlled Legislature did last week.

"The death penalty is state-sponsored murder and it's disgusting," said Rev. 
Adam Leathers, a spokesman for the Oklahoma Coalition to Abolish the Death 
Penalty, "and we're telling the rest of the world that not only are we OK with 
it, but we're making it a fundamental value and putting it in our constitution.

"This will truly make us look ignorant, brutish and all manner of negative 
attributes."

(source: Associated Press)








NEBRASKA:

Nebraska governor moves ahead with 10 executions, despite repeal of death 
penalty



Nebraska Republican Gov. Pete Ricketts says lawmakers' repeal of the death 
penalty won't stop his administration from proceeding with executions of 10 
people already sentenced to death.

Ricketts said Friday that he doesn't plan to cancel a shipment of lethal 
injection drugs that the state bought earlier this month.

The GOP-controlled Legislature this week approved a law repealing the death 
penalty over the governor's veto. The law doesn't go into effect for 3 months.

The office of Attorney General Doug Peterson said Thursday that it plans to 
challenge part of the law that effectively changed the sentences of Nebraska's 
10 current death row prisoners to life in prison. Attorneys plan to argue that 
the law violates the state constitution, which gives the Board of Pardons 
exclusive power to change final sentences.

The attorney general's office cited a portion of the law that says: "It is the 
intent of the Legislature that in any criminal proceeding in which the death 
penalty has been imposed but not carried out prior to the effective date of 
this act, such penalty shall be changed to life imprisonment."

"We believe this stated intent is unconstitutional," the office said in the 
statement.

Sen. Ernie Chambers, the new law's sponsor, said his measure makes clear that 
the Legislature isn't changing the sentences. Chambers said the law merely 
removes the death penalty as a punishment, meaning the state has no legal way 
to carry out executions. So-called intent language doesn't carry the force of 
law, he said.

Chambers said it's up to the Department of Correctional Services to decide 
whether the men remain on death row.

The attorney general's announcement came one day after state Sen. Beau McCoy of 
Omaha announced the formation of a new group, Nebraskans for Justice, which 
will look into a citizen-led ballot initiative to reinstate capital punishment.

Nebraska's referendum process allows citizens to suspend a law if they can 
collect signatures from 10 % of the state's registered voters - roughly 115,000 
people - in the 90 days before the law goes into effect.

Death penalty supporters also have the option to gather signatures from 5 % of 
Nebraska's registered voters, which would place the issue on the ballot but 
wouldn't keep the law from going into effect.

In either case, voters would decide the death penalty's fate during the next 
statewide election in 2016.

McCoy said he would prefer a 3rd option that would give organizers more time: a 
petition drive for a constitutional amendment to restore the ultimate 
punishment. Citizens can propose a law for the ballot if they gather signatures 
from 7 % of registered voters, and a constitutional amendment if they collect 
signatures from 10 % of registered voters. Petitions would have to be submitted 
to Nebraska's Secretary of State by July 2016.

"I would like to see this enshrined in the constitution so that it can't be 
removed by a future Legislature without a vote of the people," McCoy said 
Thursday. "That's certainly a process we're likely to explore. But we're going 
to look at all of the options."

Chambers said Wednesday that McCoy was within his rights, but said he doubts it 
will succeed.

"He won't get to first base with it," Chambers said.

A spokesman for Ricketts declined to say whether the Republican governor would 
endorse a ballot campaign.

Putting the death penalty on the ballot would likely require an organized and 
well-financed campaign to gather enough signatures. Last year, the group 
Nebraskans for Better Wages campaign spent nearly $1.5 million on its ballot 
drive and subsequent campaign to raise the minimum wage.

Sen. Jeremy Nordquist of Omaha, a death penalty opponent who led the minimum 
wage effort, questioned whether the issue of capital punishment would attract 
enough donors for a sustained ballot drive.

"I think there are a lot of other causes that people would put their money 
behind first," Nordquist said.

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

Nebraska's Governor Vows To Proceed With Executions Despite Death Penalty 
Repeal



Nebraska Republican Gov. Pete Ricketts says lawmakers' repeal of the death 
penalty won't stop his administration from proceeding with executions of 10 
people already sentenced to death.

Ricketts said Friday that he doesn't plan to cancel a shipment of lethal 
injection drugs that the state bought earlier this month.

The GOP-controlled Legislature this week approved a law repealing the death 
penalty over the governor's veto. The law doesn't go into effect for 3 months.

Attorney General Doug Peterson has raised questions about whether it 
unconstitutionally changes the sentences of current death row inmates to life 
in prison.

Sen. Ernie Chambers of Omaha, the law's lead sponsor, has said it's 
constitutional. Chambers says the Legislature can't change a prisoner's 
sentence, but his law eliminates the state's authority to carry out executions.

(source for both: Associated Press)

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

OHCHR PRESS BRIEFING NOTE - USA / Death penalty



Press Release: United Nations Human Rights Commissioner

OHCHR PRESS BRIEFING NOTE - USA / Death penalty

Spokesperson for the UN High Commissioner for Human Rights: Ravina Shamdasani

We welcome the abolition of the death penalty in the state of Nebraska on 
Wednesday, making it the 19th state in the US to have done so. Nebraska has not 
executed any inmates since 1997. The number of people executed each year, and 
the size of the population on death row in the US have progressively declined 
in the past 10 years. In 2014, the death penalty was carried out only by 7 
states, and the number of executions was 35, the lowest since 1994.

We hope that Nebraska's example will be considered by the other states 
(Colorado, Delaware, Montana and Kansas) whose legislative bodies are currently 
debating the abolition of the death penalty. We also echo the recommendation of 
the Human Rights Committee in March 2014, which called on the US Federal 
Government to "consider establishing a moratorium on the death penalty at the 
federal level and engage with retentionist states with a view to achieving a 
nationwide moratorium", as a 1st step towards abolition.

(source: Scoop news)








COLORADO:

DA reflects on death penalty cases----Thanks other agencies for their support



District Attorney Brittny Lewton reflected on the recent death penalty cases 
her office handled during the Logan County Republicans' monthly luncheon 
Thursday at Plainsman Grill.

Lewton, who will seek re-election in 2016, had sought the death penalty for 
Brendan Johnson and Cassandra Rieb, who were charged with murders of Johnson's 
grandparents, Charles and Shirley Severance, last year. However, both cases 
concluded two weeks ago when the two teens pled guilty and were sentenced to 
life in prison without parole and 80 years in prison respectively.

"That was something very positive for our county, in that we ended up spending 
a total of about $4,000, was all it cost," she said, noting that the money was 
used to pay for a forensic anthropologist who could examine one of the victim's 
skeletal structures. "Other than that we really did everything else ourselves, 
between the Sterling Police Department, the Logan County Sheriff's Office, my 
office and CBI (Colorado Bureau of Investigations)."

One of her first thoughts with the cases was whether they were the kind of 
cases the community would expect the death penalty for. Lewton and Doug Copley, 
an investigator with the DA's office, met right away with the Attorney 
General's Office and had a very lengthy conversation. Lewton also met with the 
Logan County Commissioners, because death penalty cases can go on for years and 
be very expensive, as is the case for the James Holmes case, a four month trial 
going on in Denver right now, that has cost about $1 million, not including 
taxpayer money spent for the court, the public defenders, courtroom security, 
etc.

"I want to be sure before I embarked on that path that everybody was with me," 
Lewton said. "But truthfully, I didn't really start out really wanting to have 
to... it wasn't as though I filed the notices right away, because my hope was 
that Brendan in particular would take responsibility up front and say, 'I've 
committed this offense against my grandparents and I deserve to go to prison 
for the rest of my life.'"

She pointed out death penalty cases have started to become more of a strategic 
battle between the attorneys, "which I really think is unfortunate and to some 
extent unethical."

"It's really not appropriate for the lawyers to sit around and barter with each 
other over people's lives and that was my beginning position as well," Lewton 
said. "But, be that as it may, the public defenders office decided that they, I 
think, and by their statements, wanted to push the case through. I don't think 
they believed that my office could handle the case and could do it quickly, so 
they immediately set for preliminary hearing and set things in motion before we 
were even finished investigating."

When it became clear that they weren't going to take life without parole, she 
had no choice but to seek the death penalty, which led the defendants to take 
plea deals.

"If we had a fast lane and I could say, 'line them up, stick the injection into 
their arm right now,' I'd do it and I would have done it," Lewton said, 
pointing out that Colorado has a slower moving death penalty system, so she 
knew it would be a lengthy process if she continued to pursue that sentence.

She noted there are years of appeals with death penalty cases, "so it's an 
untold amount of money and an untold amount of time that it's left out there. 
This way, not only did we get what we wanted out of it, but he can't, he has no 
appeal."

Rieb's case is a little bit different, but Lewton said an 80-year stipulated 
sentence is unheard in most cases. Rieb will serve 65 to 70 % of that sentence.

"Again, it's community safety, so that is ensured, because the acts that were 
committed by the two of them are unexplainable," Lewton commented, adding that 
"it's one thing to have somebody who's on meth and we can tell you why they're 
committing a crime or what they might do next, but when 2 younger folks who 
didn't appear to be under any real substances, just commit a heinous crime like 
that, no reasoning, those are the ones that scare us."

Ultimately, she is glad the 2 cases are taken care of and "I'm glad we were 
able to show people outside of this county that our district and our county is 
perfectly capable of handling a case like this, just as well as a metro office 
or better. "

Lewton acknowledged that taxpayers will have to pay for Johnson and Rieb's 
living expenses, whatever they are, but that would be true regardless of 
whether or not they received the death penalty, because there are years of 
appeals and those sentenced to death in Colorado, such as Nathan Dunlap, aren't 
being executed.

"Although that expense exists, the best outcome is he cannot ever hurt anybody 
again, in this community or anywhere but in prison," she said.

Lewton talked about other cases her office is dealing with, noting that Logan 
County continues to maintain the highest level of felony filings, as it has for 
the past 6 year years. She said SPD and LCSO are a large part of that. "They 
are out there really trying to do the best they can to get as much of the crime 
as we can figured out."

She mentioned the drug situation, calling it "bad," noting meth is still a 
problem. Even though people aren't cooking it, they're using it and meth use 
causes a chain reaction of child abuse, sex assault, theft and other cases.

"I think all of the agencies try very hard to figure out ways to get ahead of 
it; it's just a little bit difficult," Lewton said, adding that the battle is 
against what's happening with the state, "our state has completely flipped side 
to everyone should be on probation, no matter what."

"We can't seem to get the courts and the system to understand that some of 
these people just have to go to prison," she commented, noting that getting 
prison time on a drug case is "virtually impossible."

Lewton also thanked Copley, who is retiring in 30 days, for his service, noting 
he has been instrumental in helping both the previous DA, Bob Watson, and 
herself get things done right, "as well as just bringing with him knowledge 
that he can share with the rest of the district."

Of the 7 counties in her district, Lewton said what's special about Logan 
County is "the working relationship in this county between myself and coroner, 
the sheriff, the police department is excellent and I think because of that and 
only because of that, is why we are honestly a force to be reckoned with, when 
it comes to any case."

(source: Journal-Advocate)








IDAHO:

Ban Idaho's Death Penalty



For more than 30 years, Jaimi Charboneau sat in an Idaho prison -- some of it 
on death row.

Now he's out after a judge concluded the evidence used to convict him was 
corrupted.

In 1989 -- 4 years after a Jerome County jury convicted Charboneau of murdering 
his ex-wife Marilyn Arbaugh - the victim's daughter Tira Arbaugh, who is now 
deceased, wrote a letter accusing prosecutors of telling her to lie and conceal 
evidence.

She admitted not telling the truth at Charboneau's trial.

It took another 21 years before Tira Arbaugh's letter emerged. Charboneau's 
lawyer Brian Tanner argues it was concealed by state prison officials. And 
while Arbaugh's family calls the letter a fraud, it was sufficiently authentic 
for Fifth District Judge Robert J. Elgee to throw out Charboneau's conviction 
and release him on a $20,000 bond.

"The state's hands ... at least as far as the Idaho Department of Correction is 
concerned are very dirty. If ... Tira Arbaugh's letter is true, the dirt in 
this case goes way beyond the state's fingers and elbows and goes all the way 
to their eyeballs," Elgee said.

This is far short of an exoneration. Prosecutors intend to seek a new trial, 
but appeals could put that off for years.

But it wouldn't be the 1st time flawed or even altered evidence was used to 
wrongly convict someone of murder and send him to Idaho's death row.

20 years after his 1981 conviction for the murder of Kimberly Ann Palmer in 
Post Falls, Donald M. Paradis walked free.

The federal courts had discovered medical evidence used against him had been 
altered.

But it took the NAACP Legal Defense fund, attorneys Edwin Matthews of New York 
and William Mauk of Boise, national media attention and the political courage 
of then-Gov. Phil Batt to stop the state's machinery of death just long enough 
to allow this new evidence to emerge.

In the end, Paradis collected a $900,000 settlement for prosecutorial 
misconduct.

In 1982, Charles Irwin Fain's fate was sealed by the testimony of jailhouse 
snitches, faulty interpretation of hair sample evidence and the loss of a rape 
kit that could have refuted it. In spite of passing a lie detector test, a 
Canyon County jury convicted Fain of raping and murdering 9-year-old Daralyn 
Johnson, and he received a death sentence.

Almost 20 years later, defense attorneys Spencer C. McIntyre of Seattle and 
Frederick Hoopes of Idaho Falls used DNA evidence on the same hair samples to 
prove Fain was nowhere near the scene of the crime.

Fain was released on Aug. 23, 2001.

1 time you could dismiss as a fluke.

Twice is hard to ignore.

3 times is a pattern.

No region of the state is immune.

In Idaho, innocent people get convicted and sentenced to die. It happens 
because capital punishment relies on human nature.

It would be naive to think the only mistakes made are the ones we've learned 
about. Paradis, Fain and Charboneau benefited from a strong 2nd defense that 
was able to use new evidence to overcome a presumption of guilt.

What if we learn of other mistakes too late?

What if we never find out?

Wednesday, Nebraska became the 1st conservative state to end capital 
punishment.

Idaho has every reason to become the 2nd.

(source: Marty Trillhaase, Lewiston Tribune.








CALIFORNIA:

Subway shooting suspect could face death penalty



Alleged Subway shooter Steven Drew Allee made his 1st appearance in San Joaquin 
County Superior Court on Friday since being charged with the murder of a 
sandwich shop employee in northeast Stockton.

Dressed in a red jail-issued jumpsuit, Allee sat with his hands and feet 
shackled as Judge Franklin Stephenson advised him of his rights and the charges 
he is facing. Allee, 32, is charged with murder in the shooting death of 
43-year-old Subway employee Jerry Lucero and 2 counts of robbery stemming from 
cases in Lodi, Chief Deputy District Attorney Ron Freitas said.

"He's also been charged with 2 special circumstances in the murder, and that 
qualifies him for the death penalty," Freitas said. "We'll make the decision as 
to whether we'll actually seek the death penalty following the preliminary 
investigation."

Allee did not enter a plea and requested a public defender. A representative of 
the public defender's office requested further arraignment, which was scheduled 
for 10 a.m. June 8 in Department 21.

Allee was arrested Wednesday afternoon, a day after Lucero was gunned down 
during an attempted robbery at a Subway restaurant on East Hammer Lane. 
Investigators believe Allee was also responsible for 2 robberies in Lodi, 1 at 
a K-Mart and another at a Subway store, Freitas said.

(source: Stockton Record)








USA:

UN Fights for Moratorium on Death Penalty in the US



The UN High Commissioner for Human Rights Department called today for a 
moratorium on the use of the death penalty in the United States, as a 1st step 
towards abolition.

>From Geneva, the spokeswoman of that body, Ravina Shamdasani, stated that the 
Office headed by Ra'ad Zeid Al Hussein echoes the recommendation made in March 
2014 by the Human Rights Council to Washington, to promote the postponement of 
the ultimate punishment nationwide.

In a press release, the spokeswoman welcomed the recent abolition of the death 
penalty in Nebraska, the nineteenth state of the Union to do so, and urged 
others to 'follow its example'.

We hope that States debating in their legislative bodies the elimination follow 
the initiative, she noted referring to Colorado, Delaware, Montana and Kansas.

Of the 50 states, 32 keep prisoners' execution as legal, although many of them 
did not apply it in recent years.

Shamdasani noted that the number of executions and people on the death corridor 
decrease annually in US territory, an scenario that could be favorable for the 
moratorium.

Only 7 states applied the death penalty last year, with 35 inmates killed, the 
fewest since 1994, she said.

The death penalty in the United States in 2014 triggered the attention of UN 
experts in human rights, following the extreme suffering inflicted on prisoners 
sentenced to the death penalty, starting from irregularities in the use of 
lethal injection and the electric chair.

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

Awaiting execution, Marvin Gabrion says he deserved mistrial for punching 
attorney



Marvin Gabrion has asked a federal judge to vacate his death sentence in the 
1997 killing of Rachel Timmerman.

Among the reasons: the trial judge failed to declare a mistrial when Gabrion 
punched 1 of his attorneys.

Gabrion's voluminous filing - 604 pages - asks U.S. District Judge Robert 
Holmes Bell to grant him a new trial, vacate a jury's guilty verdict for 
murder, or vacate, set aside or correct his sentence. It also asks that Bell 
recuse himself and set an evidentiary hearing over what it considers disputed 
issues.

Bell presided over Gabrion's trial.

The government showed that Gabrion kidnapped and killed Timmerman, 19, 2 days 
before he was to stand trial in Newaygo County Circuit Court for raping her. 
Her body was found in a remote lake. She was bound, gagged and weighed down by 
a concrete block.

The body of her 11-month-old daughter, Shannon Verhage, has never been found. 
The government believes he killed her as well as 3 others. The federal 
government, which allows use of the death penalty, prosecuted Gabrion because 
the killing occurred on federal land.

State law in Michigan does not allow executions.

His attorneys say in motion filed Friday, May 29, that he should not be 
executed because he has suffered severe mental illness for decades. They also 
say he was provided ineffective assistance of counsel at trial.

Gabrion, 61, recently asked that he be allowed to file his Section 2255 motion 
under seal. The judge said that only sensitive information about third-parties 
could be redacted.

Gabrion has filed numerous appeals over the years. A federal appeals panel once 
overturned his death penalty but the entire Sixth Circuit Court of Appeals in 
Cincinnati re-instated the sentence.

Among questions Gabrion's 3 attorney cite as grounds for a new trial or 
sentence:

-- Did the grand jury allege an aggravating circumstance to make Gabrion 
eligible for the death penalty?

-- Was there insufficient proof to show Timmerman's killing happened on 
federal land?

-- Whether the judge erred by refusing to relieve one of Gabrion's attorneys 
and declare a mistrial after he punched the lawyer during the penalty phase of 
proceedings.

-- Whether the judge erred in refusing a defense request for another 
competency evaluation "after a neurologist testified that Mr. Gabrion was brain 
damaged and after Mr. Gabrion's mental state deteriorated during the trial to 
the point that he punched his attorney in front of the jury during the penalty 
phase."

-- Whether the court wrongly denied Gabrion's attempt to confront a Newaygo 
County prosecutor about a report that alleged "prosecutorial misconduct and 
evidence of a vendetta against Mr. Gabrion."

-- Whether the judge should have instructed the jury about Gabrion's courtroom 
behavior or allow argument about it.

-- Whether witnesses should have been allowed to testify during the penalty 
phase of trial about other bad acts by Gabrion.

-- Whether evidence should have been allowed that 3 men with connections to 
Gabrion had disappeared.

-- Whether the victim's mother should have been allowed to testify that she 
wanted Gabrion executed.

-- Whether Gabrion's rights were denied because the jury foreman told The 
Grand Rapids Press after the sentencing that "I knew he was off the wall before 
the trial."

(source: mlive.com)

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

The Death Penalty Is Just and Merciful ---- Alternatives to it are not less 
cruel.



It is possible to view Nebraska's recent vote to abolish the death penalty - a 
vote that brought together liberals, budget balancers, and social conservatives 
- as a heartening sign that partisan divisions can be overcome, that moral 
progress can arrive even in places that vote Republican, and that the brutal 
facade of structural racism may one day crack and topple.

This view has much to recommend it: It appeals to our desire to overcome 
tiresome divisions, confirms the superiority of the present over the past, and 
does honor to the principled people who have argued, often very eloquently, 
that we must unknot the hangman's noose. It also suffers from certain defects.

Its story of moral progress asks us to overlook the countless cruelties of our 
criminal-justice system as we congratulate ourselves on the elimination of a 
relatively rare punishment (Nebraska's last execution was in 1997).

It suggests that the only purpose of criminal justice is deterrence - a view 
long championed by Beccaria, Bentham, and other apostles of cruel efficiency. 
It asks us to ignore that life imprisonment, the only alternative to capital 
punishment, is hardly more humane.

Indeed, comparing our differing reactions to capital punishment and life 
imprisonment is one of the more direct ways to see what lies behind most 
death-penalty opposition. As Pope Francis has observed, "Life imprisonment is a 
hidden death penalty."

His suggestion that we abolish both is rather questionable (taken seriously, it 
requires parole for Pol Pot, halfway houses for Hitler), but his basic insight 
is sound. Is it really more barbaric to grant a terrible murderer a dignified 
death than to force him to live a life of confinement, perhaps to undergo 
humiliating force-feeding, and then to die in the hands of the state even if 
not by the state's hand?

While some writers have made detailed arguments distinguishing death from other 
punishments, most people who oppose the death penalty do so based on loose 
intuitions, about barbarity and humaneness, that should apply with equal - 
perhaps greater - force to life imprisonment. That we are ready to accept the 
latter but not the former reflects that much of the opposition to the death 
penalty comes not from moral indignation but from aesthetic revulsion.

We have undergone not an increase in conscience but an intensification of our 
squeamishness. We seek bloodless means, however cruel they may be.

Most people who oppose the death penalty do so based on loose intuitions, about 
barbarity and humaneness, that should apply with equal - perhaps greater - 
force to life imprisonment.

How did we get here?

As Stephanos Bibas writes in his book The Machinery of Criminal Justice, such 
Enlightenment thinkers as Cesare Beccaria argued that the purpose of punishment 
was "to deter crime rather than exact deserved retribution."

As Jeremy Bentham said, criminal justice should function as a "mechanism to 
inflict enough pain to outweigh the pleasure of crime."

Whenever opponents of capital punishment say that it has no deterrent effect, 
they speak with the voice of Bentham. Punishment is no longer about just 
retribution, about reintegration into the community, about moral education: It 
is simply a matter of brute deterrence.

The views of these thinkers have gained currency because their approach 
promises to eliminate the inequalities that can result from an ethic of mercy 
(which is bound to be applied unequally) and the apparent establishment-clause 
problems that come with ideas of retribution and moral instruction - it was not 
uncommon for colonial-era judges to deliver religious exhortations to those 
they were sentencing.

Yet this view fails to recognize the moral and human dimensions of punishment - 
the reference to a higher power, the principle that retribution should be 
proportionate to the crime, the possibility of reconciliation - that makes 
criminal justice a matter of punishing men rather than herding animals. It may 
lead to outcomes that are less "problematic," but it has gone hand in hand with 
the rise of a system that is at once sterile, hygienic, and cruel. It is 
regrettable that the claim, made most prominently in John Paul II's Evangelium 
Vitae, that deterrence is the only legitimate justification for capital 
punishment has encouraged an attenuation also of Christian reasoning on 
punishment.

Indicative of this loss is the remark by the Catholic writer and Jesuit priest 
James Martin that "it is wrong, in all cases, to take a human life." John Paul 
II's words are better read in the broad sweep of Christian tradition, in the 
manner recommended by Avery Dulles in his article "Catholicism and Capital 
Punishment": The Catholic magisterium does not, and never has, advocated 
unqualified abolition of the death penalty.

I know of no official statement from popes or bishops, whether in the past or 
in the present, that denies the right of the State to execute offenders at 
least in certain extreme cases. The United States bishops, in their majority 
statement on capital punishment, conceded that "Catholic teaching has accepted 
the principle that the State has the right to take the life of a person guilty 
of an extremely serious crime."

Joseph Cardinal Bernardin, in his famous speech on the "Consistent Ethic of 
Life" at Fordham in 1983, stated his concurrence with the "classical position" 
that the State has the right to inflict capital punishment.

Recently Alex Tuckness and John M. Parrish have written against "the decline of 
mercy in public life."

If we are to reverse that decline, if we are to erect a criminal-justice system 
that is less cold and cruel, we could do worse than to defend and extend the 
death penalty.

This is a conclusion that I reach as a Catholic, as someone who has marched 
against the application of the death penalty in individual cases, and as a 
native Nebraskan inclined to take pride in his state but unable to do so in 
this case.

The alternatives to the death penalty are not less cruel, and perhaps more so; 
the arguments against it are either narrow or absurd; the reasons for it, which 
have always gone well beyond deterrence, remain as real in our time as they 
were in Hammurabi's. Simply as a sign that punishment is not just about the 
carrots and sticks of deterrence but that it is an inevitably moral project 
concerned with right and wrong, justice and injustice, the death penalty has 
much to teach us still.

In countless individual cases, mercy will be called for, but both justice and 
mercy are obscured when we call the death penalty unjust.

(source: Matthew Schmitz is deputy editor of First Things----National Review)

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

FBI notifies crime labs of errors used in DNA match calculations since 1999



The FBI has notified crime labs across the country that it has discovered 
errors in data used by forensic scientists in thousands of cases to calculate 
the chances that DNA found at a crime scene matches a particular person, 
several people familiar with the issue said.

The bureau has said it believes the errors, which extend to 1999, are unlikely 
to result in dramatic changes that would affect cases. It has submitted the 
research findings to support that conclusion for publication in the July issue 
of the Journal of Forensic Sciences, the officials said.

But crime labs and lawyers said they want to know more about the problem before 
conceding it would not make much difference in any given case.

???The public puts so much faith in DNA testing that it makes it especially 
important to make those the best estimates possible," said Wright State 
University statistics professor Daniel R. Krane, an expert whose work has been 
cited by defense attorneys. "There is no excuse for a systematic error to many 
thousands of calculations in such a context."

Krane, who identified errors 10 years ago in the DNA profiles the FBI analyzed 
to generate the population statistics data, called the consequences of the 
disclosure appalling, saying the data has been used in tens of thousands or 
hundreds of thousands of cases worldwide in the past 15 years. He said when he 
flagged the problems a decade ago, the FBI downplayed his findings.

The issue centers on the FBI's "Pop stats," which are built into the software 
programs used by 9 in 10 U.S. labs and many overseas, Krane said.

While juries might well reach the same decision if errors mean that an 
individual has a 1-in-a-billion chance of matching a crime scene sample instead 
of 1 in 10 billion, for example, that may not be so if errors were to halve, 
say, assertions that person had a 1-in-180 chance of matching, as Krane said 
came up in a case that he testified in last week.

Such low ratios are increasingly common as state and local labs analyze smaller 
and smaller traces of DNA found on objects such as guns or countertops - known 
as "low-copy" and "touch DNA" - and often are sifting through DNA mixtures, or 
profiles contributed by multiple people.

Stephen Mercer, chief of the forensic division of Maryland's Office of the 
Public Defender, said his office on Wednesday notified its attorneys about the 
issue and suggested they consider asking prosecutors about such problems in 
cases involving DNA evidence.

"The prediction that the errors are likely to have a nominal impact has to be 
assessed by the defense in the individual circumstances of each particular 
case," Mercer said.

In a bulletin sent to crime labs, the FBI said the problem stemmed from 
"clerical mistakes in transcriptions of the genotypes and to limitations of the 
old technology and software."

The disclosure comes as some private researchers and lawyers in recent years 
questioned whether errors in the FBI's national database of 13 million DNA 
profiles may have led judges and juries to give undue weight to DNA matches, 
long considered the "gold standard" in forensic science. They have called on 
the government to open the database for private research.  Crime lab analysts 
in the United States generally develop a DNA profile by analyzing 13 or more 
specific locations on chromosomes, called loci, for specific markers that 
appear at different frequencies in a given population. Match probabilities are 
derived by calculating the likelihood of a person sharing the same markers at 
each point.

The FBI is preparing to transition to using more than 20 loci, which 
theoretically should significantly improve the accuracy of results and allay 
concerns about the population statistics it used to generate those frequencies, 
officials said.

With new commercial test kits available using more loci, the FBI commissioned a 
study that re-tested DNA samples used for its original work and uncovered the 
errors.

"We are of the view that these discrepancies are unlikely to materially affect 
any assessment of evidential value," the FBI stated in its May 11 bulletin to 
crime labs, according to a person who has a copy. "However, given that 
statistics based on these data have been included in thousands of lab reports 
and in testimonies, we believe the discrepancies require acknowledgment."

In a public statement late Friday, the FBI said it found errors in 33 of 1,100 
profiles used, or 3 %. The FBI added that the DNA community has cautioned that 
match probabilities should be viewed as varying by a factor of 10, saying, 
"Though these discrepancies are within the internationally accepted range, the 
FBI is committed to correcting the inaccurate values in a transparent manner."

The FBI has prepared a letter to the editor to be published by the Journal of 
Forensic Sciences, which originally published the bureau's study 16 years ago.

David Coffman, chairman of the accreditation arm of the American Society of 
Crime Lab Directors, said it would be premature to comment on the significance 
of the errors until the FBI releases more data.

"They said it would be very minor," said Coffman, who is director of forensic 
services for the Florida Department of Law Enforcement in Tallahassee. "We are 
waiting to see the journal article to see which [data] would be affected, so we 
could evaluate it."

In a statement, the National District Attorneys Association applauded the 
"transparent and responsible manner in which the FBI has disclosed this 
internal finding," adding that "notification to all interested parties is an 
excellent 1st step in addressing this issue."

(source: Spencer S. Hsu is an investigative reporter, 2-time Pulitzer finalist 
and national Emmy award nominee; Washington Post)