[Deathpenalty] death penalty news----NEB., COLO., USA, US MIL.

[Rick Halperin]

Aug. 20


NEBRASKA:

Death penalty battle in Nebraska just beginning

Editor's note: This is the 1st of a 3-day series of stories on the status of 
the death penalty in Nebraska, amid efforts to gather enough signatures to 
place the issue on the November 2016 ballot.

--------------------------------------------------------------------------------

Coming into last year's legislative session, state Sen. Paul Schumacher didn't 
have a strong opinion on the death penalty.

"My predisposition was that we have the best of both worlds," said the Columbus 
legislator.

What he meant was that because Nebraska hadn't executed anyone since 1997, it 
made the death penalty practically nonexistent, and that appeased opponents. 
But having it as state law allowed county attorneys across the state the 
benefit using the threat of it in negotiating plea deals.

As a former Platte County attorney, Schumacher respected that.

But by the end of the 2015 legislative session, Schumacher was praising the 
repeal of the death penalty in Nebraska, and a photo of him bumping arms in 
celebration with state Sen. Ernie Chambers of Omaha was an image that helped 
rally death penalty supporters.

The Legislature voted to repeal the death penalty via Legislative Bill 268 and, 
later, to override Gov. Pete Ricketts' veto by a vote of 30-19 - the exact 
number needed to preserve the repeal.

It's a decision that's spurred a petition drive to place the issue before 
Nebraska voters in 2016, provided tangible proof of the effects of term limits 
for state lawmakers and caused a statewide and even national examination of 
capital punishment in Nebraska.

Each side has opinions on how the decision came to be. For proponents of 
repeal, it was a practical decision resulting from a broken system. But for the 
opposition, it was an out-of-touch Legislature not making good on its 
constituents' wishes.

The latter is how Vivian Tuttle of Norfolk and many others around the state 
feel.

Tuttle is the mother of Evonne Tuttle, who was 1 of 5 people killed in the 2002 
U.S. Bank shootings of Norfolk. She wants the perpetrators of that horrific 
crime - Jorge Galindo, Erick Vela and Jose Sandoval - given the sentence handed 
to them: the death penalty.

Vivian Tuttle, who was part of an effort to raise public support for the death 
penalty as the Legislature debated the issue this spring, said the situation is 
a direct result of bad politics.

"We wanted people to know what was going on, and we wanted people to get a hold 
of their senators," she said.

Many tried but weren't given an opportunity to speak in person with lawmakers 
and express their support for retaining the death penalty.

"They (senators) went ahead and voted how they wanted to," she said.

Now Tuttle and others like her around Nebraska are gathering signatures as part 
of a petition drive financially backed by Nebraskans for the Death Penalty, of 
which Ricketts' $200,000 donation comprises nearly a third of funding.

Tuttle, like some others, isn't taking any compensation for her work and 
guesses that she'll spend more than $2,000 of her own money traveling to towns 
to circulate petitions.

But it's worth it, she said.

The purpose is to allow Nebraskans to vote on repealing LB268 and thereby 
retain the death penalty. The possibility also exists that, if enough 
additional signatures are collected, that LB268 would not become law until the 
2016 vote is taken. If that happens, those individuals on Nebraska's death row 
will remain on the path toward execution.

Schumacher said the Legislature's action came from a policy-focused effort to 
hear out both sides and see what did and didn't work about Nebraska's system.

Schumacher said that, in his opinion, proponents of the death penalty ended up 
making the weaker argument. At the legislative hearing on the issue, for 
example, there were more than 40 advocates of repeal who testified, while just 
one testified in favor of retaining the death penalty.

Schumacher, who has a legal practice in Columbus, sums up the arguments against 
the death penalty in terms of the standard 4 reasons for criminal punishment: 
deterrence, rehabilitation, incapacitation and retribution.

Of the 4, deterrence - keeping similar acts from happening again - has always 
been touted by those in favor of the death penalty. The governor, for example, 
has used the argument of public and police safety multiple times as a need for 
the death penalty.

But when proponents of repeal shared studies showing the death penalty's 
presence had no definitive effect on violent crime - and supporters couldn't 
present an effective counter-argument - Schumacher said it was clear to him 
that deterrence isn't all it's cracked up to be.

"The overwhelming evidence shows that the death penalty, or even a life 
sentence, isn't on people's mind when they commit a murder," Schumacher said. 
"For deterrent purposes, it's not there, and such a weakness in the argument of 
people for the death penalty was a major consideration by the Legislature."

In addition, rehabilitation - the effort to build a more productive member of 
society - and incapacitation, which is taking a criminal out of the societal 
equation, are irrelevant when deciding between a life sentence and the death 
penalty, he said. Either way, offenders aren't reintroduced to the public.

The lawmaker said the only true argument brought forth for retaining the death 
penalty focused on retribution - the eye-for-an-eye argument.

Schumacher said he believes that, in most cases, the death penalty is a false 
promise because the lengthy appeals process and the lack of the needed lethal 
drugs to execute leave almost all on death row. In the cases where the death 
penalty is carried out, it addresses only a select few, he said.

"That disparity between a small, small percentage of victims' families who get 
that retribution and the large number of those who do not is a real problem," 
Schumacher said. "It's an indication of some kind of imbalance in the system."

Tuttle said the appeals process is the 1st thing that needs to be fixed if 
Nebraska votes to reinstate the death penalty. One idea would be to offer 90 
days of hearings and appeals at each level - local, state, national and again 
on the local level - to expedite the process.

But that may not be realistic. No state has achieved anything like that. Even 
someone sentenced to death in Texas - the state responsible for almost 40 % of 
executions in the past 10 years - has an average time on death row of 10.87 
years.

State Sen. Jim Scheer of Norfolk said there's a reason the appeals process is 
so thorough.

"If we're going to have true justice, you have to make sure they have the ample 
opportunity to protect their rights and their ability to prove their 
innocence," said Scheer, who voted against the repeal of the death penalty.

Scheer is among those who don???t believe the death penalty serves as a true 
deterrent, but he also strongly believes that government still has a 
responsibility to dole out appropriate punishments for heinous crimes.

He said the death penalty also has value as a bargaining chip for lawyers 
involved in prosecuting cases. The fact that many lawyers in Nebraska did not 
want to see LB268 passed is a testament to that.

Schumacher said that, in the past, he felt the same way. Threatening to pursue 
the death penalty was an effective tool to get low-cost plea deals that makes 
taxpayers and county boards happy while cutting around technicalities in the 
legal system.

But the problem, he said, is that it's proven on more than one occasion to be 
too effective of a tool.

Look at the Beatrice 6 of 1985 in which 6 people were incarcerated on a plea 
deal obtained by threatening the death penalty - in addition to falsified 
evidence from a forensic investigator. The accused were released in 2009 when 
further evidence found them innocent. The state's paid over a million dollars 
for the wrongful convictions.

For the most part, these opinions and talking points aren't new information.

Many Nebraskans are well aware that Chambers has introduced a bill to repeal to 
the death penalty every session he's served as a senator since 1976, except 
from 2009 to 2012 when he was out of the Legislature.

The last time it came close to reaching this point was 1979 when it was vetoed 
by then-Gov. Charles Thone.

So what about this year was different?

Both sides agree that one of the main factors was the influx of new state 
senators, a result of enacting term limits on lawmakers of 2 4-year terms.

17 new senators were sworn in this past session - over 1/3 of the Legislature. 
Of those 17, 10 voted to pass LB268, as well as to override the governor's 
veto.

The impact of the presence of new senators is viewed differently by each side 
of the debate.

Tuttle said she believes the new group of senators was more interested in 
personal convictions than protecting or bettering the state as a whole.

"They were easy enough to sway because they were told that's what you do," she 
said. "You trade votes so you can get what you want."

Schumacher disagrees, saying there's an answer more practical than that.

When you substitute out such a large number of senators, the Unicameral is 
going to surprise voters with decisions that reflect a morphing legislative 
body.

"You're going to see this over and over with term limits," Schumacher said. 
"You're going to see large numbers of new people coming in and thus what you 
thought was a political landscape is not that way, and what you thought was a 
viable idea is not. And what you thought would never see the light of day 
becomes something openly discussed."

* * *

Coming tomorrow: Will the Nebraska Legislature's decision to repeal the death 
penalty have a nationwide impact?

(source: Norfolk Daily News)

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ACLU asks for investigation in death penalty drug purchase


The ACLU of Nebraska has asked U.S. Attorney Deborah Gilg to open an 
investigation into Nebraska's ongoing efforts to obtain lethal injection drugs 
from a "sketchy" foreign source.

In a letter from ACLU of Nebraska, Legal Director Amy Miller said 
communications between the state and the Drug Enforcement Authority demonstrate 
a months-long effort by the Nebraska Department of Correctional Services "to 
obtain illegal drugs despite clear and unequivocal notice that their conduct 
was prohibited by federal law."

Those lethal injection drugs are sodium thiopental and pancuronium bromide.

According to documents obtained by the ACLU through open records requests, 
Miller said, federal authorities clearly informed Nebraska officials that 
federal law prohibits import of the drugs.

Nebraska officials paid $54,000 in taxpayer funds to India-based Harris Pharma 
for the drugs that have yet to be produced and are now months past initial 
assurances of their delivery date.

Gov. Pete Ricketts said Wednesday the department is still negotiating with the 
DEA to obtain the drugs, but would not give a timeline on when they might be 
delivered.

According the ACLU letter, the state sent customs forms July 31 to Harris 
Pharma in India.

"The ACLU is committed to holding state officials accountable for their ongoing 
efforts to secure lethal injection drugs in violation of federal rules," said 
ACLU of Nebraska Executive Director Danielle Conrad.

The documents provided show state officials have been told repeatedly by 
federal authorities that there is no legal way to import the drugs yet they 
continue to repeat a suspect claim that they are "working with federal 
officials to secure the drugs," Conrad said.

Nebraska taxpayers deserve a straight answer, she said.

"It is time to end this charade," Conrad said. "Nebraska officials should 
request an immediate refund of over $50,000 of taxpayer funds they committed to 
this sketchy foreign source without doing any due diligence and should cease 
and desist from all future attempts to skirt federal rules."

Miller said rather than wait for illegal drugs to enter the country, Gilg 
should assure the state complies with federal law and stop all efforts to 
"flout" clear FDA provisions.

(source: Journal Star)






COLORADO:

Does Colorado's death penalty have a race problem?


James Holmes was sentenced to life in prison despite killing more people than 
the 3 African American men, on Colorado's death row, combined. Now, many are 
asking, does race affect who gets death? A new study from the University of 
Denver's law school suggests that the answer may be yes.

James Holmes killed more people during his movie theater massacre than Nathan 
Dunlap, Sir Mario Owens and Robert Ray combined. Dunlap, Owens and Ray, all of 
whom are black, are on death row. Holmes, who is white, will spend the rest of 
his life in prison.

Why?

The 3 jurors - 2 wavering, 1 resolute - who chose to spare Holmes' life 
reportedly did so because of his mental illness, not his race. Attorney Forrest 
"Boogie" Lewis, who defended Dunlap in 1996, said, "It is folly to speculate on 
the motivation of individual jurors in such emotional, complex cases."

Still, on the day of the Holmes verdict, Colorado state Rep. Jovan Melton 
tweeted, "Today's verdict proves again that the death penalty is arbitrary. 
Only people on death row in CO are Black. It has no place in CO."

Melton's Tweet echoes the "If he was white, he'd still be alive" argument that 
presents itself each time police kill another unarmed person of color. If 
Holmes were black, would he now be facing execution?

'DISQUIETING DISCRETION'

A recent study from the University of Denver Law School adds credibility to a 
theory as widely reported as it is unpalatable: Colorado's death penalty has a 
race problem.

The DU study, titled "Disquieting Discretion," features statistical analysis of 
more than 500 Colorado prosecutions from 1999 to 2010. Controlling for both the 
heinousness of crimes and the variable rates at which different racial groups 
commit crimes, researchers found that nonwhite defendants here are 5 times more 
likely to face the death penalty than their white counterparts. Of the 22 
capital cases tried in those years, only 2 were against white defendants. The 
study's other major finding - that the 18th Judicial District prosecutes 
disproportionately more than its share of death penalty cases - suggests a 
potential explanation why. The decisions of individual juries cannot be 
controlled, but across the state, prosecutors pursue death against many fewer 
defendants than are eligible for it. District attorneys, in other words, have a 
large amount of discretion when it comes to deciding whose lives are put on 
trial.

This finding is not entirely new. Gov. John Hickenlooper acknowledged the 
discretion when he granted Dunlap an indefinite stay of execution in 2013.

"The inmates currently on death row have committed heinous crimes, but so have 
many others who are serving mandatory life sentences," Hickenlooper said. "The 
fact that those defendants were sentenced to life in prison instead of death 
underscores the arbitrary nature of the death penalty in this State, and 
demonstrates that it has not been fairly or equitably imposed."

BLACK AND WHITE

Bob Grant, a former prosecutor whose case against white defendant Gary Lee 
Davis led to the state's last execution in 1997, said prosecutorial discretion 
is not problematic.

"You can do all the statistical studies you want, and they're not going to get 
to the full story." Grant said. "Race has nothing to do with a death decision. 
Never has." Defense attorney David Lane disagreed.

"The death penalty is, was and always will be about race," Lane said.

The study's authors agree with Grant that race is likely not an explicit factor 
for prosecutors or juries.

"We're definitely not in the business of saying that these prosecutors or these 
jurors were out to kill a black person," said Sam Kamin, one of the study's 
authors.

But implicit bias, Kamin said, is a powerful thing.

"I think that all of us in society carry these preconceptions around about 
people, and it would be surprising if that didn't manifest in our criminal 
justice system," he said.

It's possible that jurors are more likely to consider mental illness a 
mitigating factor for white defendants than minorities.

"I think that (Holmes') mental illness was more important than his race," said 
Robert Dunham, executive director of the Death Penalty Information Center. 
"However, if you change his race, I'm not sure the same calculus applies."

Lane speculated that jurors may have been more sympathetic to Holmes because of 
his race and class background. He was a graduate student. His parents took the 
witness stand and spoke articulately about his happy, stable childhood.

"If Holmes had been equally crazy and black, would one juror have said that 
mental illness for this African American man is so significant that I'm not 
going to pull the trigger?" Lane asked.

CRIME AND PUNISHMENT

Longtime Democrat Rhonda Fields, a member of the Colorado House, never thought 
she'd be a death penalty advocate.

"I didn't support it," she said. "I didn't think I would ever be touched by 
it."

But in 2009, capital punishment became personal for Fields.

Days before her son, Javad Marshall-Fields, was to testify against defendant 
Robert Ray for the killing of Marshall-Fields' best friend, he and his fiance 
were ambushed and murdered while driving. Ray had ordered the murders to 
protect himself from Marshall-Fields' testimony. His friend Sir Mario Owens, 
who is also now on death row, carried them out.

"I support the death penalty because I believe that some people commit such 
heinous crimes that they deserve the worst punishment on the books," Fields 
said.

She, along with many death penalty advocates, believes capital punishment 
differentiates the worst killers from those who commit, in the words of 18th 
Judicial District prosecutor George Brauchler, "run-of-the-mill 1st degree 
murders."

Fields supported the death penalty for Ray because he was already facing life 
in prison for the previous shooting, and she also wanted him punished for the 
death of her son.

"Why would I want to give him a freebie?" she asked.

An African American woman, Fields is hesitant to say that race has anything to 
do with the decision to pursue the death penalty.

"I really have great confidence in the criminal justice system," she said. "If 
a DA doesn't want to use it as an option, it's probably because the crime 
doesn't meet the criteria."

Still, she said, "I know race matters. We've seen these things play out."

WITNESS PROTECTION

Grant insists that the specifics of each crime, not race, are what matters. He 
pointed out that the study's rough measurement for heinousness - whether a 
defendant killed more than one person - doesn't give enough information about a 
crime to know whether the defendant deserves death.

"Look at the aggravating factors and decide for yourself," he said. "They are 
what separate a domestic violence murder, for instance, or an individual 
dispute murder ... from the most heinous, the most aggravated murders."

One of the main aggravating factors against both Owens and Ray was the fact 
that they'd killed a witness. Outside the courtroom on the day Ray was 
sentenced to death, then district attorney of the 18th Judicial District Carol 
Chambers said, "Killing a witness undermines the very foundation of the 
criminal-justice system."

In 2003, Caleb Burns and Nathaniel York - both white - kidnapped, bound, gagged 
and then murdered 2 teenagers they believed were witnesses to an earlier 
attempted murder. Like Owens and Ray, these white men committed their crimes in 
the 18th Judicial District.

Burns and York were both able to plead guilty in exchange for life sentences.

"Black men who kill witnesses in the 18th Judicial District get the death 
penalty," said Lane. "White men get life."

THE NEXT PHASE

Many state and national studies have indicated that race affects prosecutions 
and outcomes of death penalty cases.

But the U.S. Supreme Court has made it clear that statistics are not enough. In 
1987, University of Iowa professor David Baldus studied 2,000 murder cases in 
Georgia and found that killers of white victims were more likely to receive the 
death penalty than killers of black victims.

But when death row inmate Warren McCleskey attempted to use the study to 
overturn his sentence, SCOTUS ruled against him. Even if the statistics were 
accurate, the court ruled, it wasn't enough to prove any racial motivations for 
McCleskey's own case.

In an infamous opinion, Justice Powell wrote for the majority, "Apparent 
discrepancies in sentencing are an inevitable part of our criminal justice 
system."

The sentencing trial of Dexter Lewis, who stabbed 5 people to death in a Denver 
bar in 2012, is set to conclude in the upcoming weeks.

A life sentence for Lewis, who is also black, could imply that Coloradans are 
simply becoming lukewarm toward the death penalty. Though 2/3 of Coloradans 
polled said they supported death for Holmes, support for capital punishment is 
at a 40-year low nationwide.

But a death sentence for Lewis will likely cause outrage, perhaps justified, 
among death penalty opponents.

In his executive order granting Dunlap a stay of execution, Hickenlooper wrote, 
"If the state of Colorado is going to undertake the responsibility of executing 
a human being, the system must operate flawlessly. The death penalty in 
Colorado is not flawless."

He then added, "It's a legitimate question whether we as a state should be 
taking lives."

(source: The Colorado Independent)






USA:

Coerced Confessions and Jailhouse Snitches: Why the Death Penalty Is So Flawed


If a majority of the Supreme Court justices eventually strike down the death 
penalty as unconstitutional, Henry Lee McCollum may be an important reason why. 
Perhaps that will provide some small comfort to him, given the 30-year ordeal 
he suffered on death row in North Carolina as an innocent man.

McCollum and his brother, Leon Brown, had falsely confessed to the murder of a 
11-year-old girl. They were young, intellectually disabled, and they quickly 
recanted their confessions as having been forced on them by the local police, 
who used overbearing interrogation tactics. Last year, when DNA testing on 
evidence that had remained hidden for decades finally exonerated them, the 
results implicated another man, a serial murderer. Both men have now been 
pardoned.

In one of the last opinions announced by the Supreme Court this Term, in 
Glossip v Gross, by a 5-4 margin the Court approved the lethal injection 
"cocktail" now being used in Oklahoma and other states. What makes the case so 
important, though, were the defensive remarks by justices in the majority, who 
perhaps now sense that the days of the death penalty are numbered.

In his remarkable dissent, Justice Stephen Breyer, joined by Justice Ruth Bader 
Ginsburg, argued that the death penalty is flat-out unconstitutional. Justice 
Breyer explained just how rare and unusual death sentences are, raising serious 
concerns under the Eighth Amendment, but also a dilemma: the very delays that 
prolong litigation in death penalty cases, also result in remarkable number of 
reversals and outright exonerations of innocent prisoners. And Justice Breyer 
cited the case of Henry McCollum, noting how in 1994, the Supreme Court denied 
relief in his case, over the dissent of just 1 justice.

At the time, Justice Antonin Scalia loudly proclaimed that the death penalty 
was richly merited in "the case of an 11-year old girl raped by four men and 
then killed by stuffing her panties down her throat. How enviable a quiet death 
by lethal injection compared with that!" It took 20 additional years for DNA to 
prove that McCollum was innocent. No comment from Justice Scalia.

False confession cases such as McCollum's show it is inevitable that innocent 
people will be sentenced to death. Death penalty cases often heavily revolve 
around confession evidence. One half of the 20 cases of individuals exonerated 
by DNA testing from death row in the US included false confessions. Each of 
those confessions supposedly included specific details of the crime that only 
the murderer could have known.

The police claimed that Brown and McCollum had each separately told them in 
gruesome detail how the victim had been raped and murdered, including how she 
was asphyxiated by her own panties: we now know that they were innocent and 
their confession statements were contaminated - meaning that police must have 
actually told the brothers each of those facts during the interrogation.

Confession Contamination

Such confession contamination has happened in case after case. I have found 
that almost without exception, the false confessions by DNA exonerees were 
contaminated. Of 69 false confessions, 65 had been contaminated. Nineteen of 
these exonerees who had falsely confessed were even convicted despite DNA tests 
that cleared them at the time of trial - such is the power of confession 
statements, even false ones.

Indeed, in a 1997 death penalty case, that of Damon Thibodeaux, police did not 
conduct DNA tests that would have proved his innocence, because they had 
secured his (false) confession (54 minutes were recorded of his 9-hour 
interrogation).

At his trial, the prosecutor explained that if "somebody confesses" you do not 
"need DNA to tell you" who the culprit is. And police still fail to record 
entire interrogations; videotaping who said what in the interrogation could 
help to prevent confession contamination.

Death penalty cases continue to centre on confession evidence. In Virginia, I 
have found that 7 of the 20 capital cases that have gone to trial since 2005 
have involved confession statements, most of which were undocumented.

Far broader studies of murder cases have found similar figures. Professor John 
Donohue, in his important study of the Connecticut death penalty, found 59% of 
death eligible murders since 1973 involved confession statements made to the 
authorities, and in addition, 43% involved incriminating statements to third 
parties.

The classic study lead by Professor David Baldus of the Georgia death penalty 
found that 29% in a sample of 1,066 murder and voluntary manslaughter cases 
involved self-incriminating statements.

Snitched Up

Why do many capital cases have confessions? Police may be particularly keen to 
conduct lengthy coercive interrogations in capital cases. Henry McCollum knows 
this well. And still more death penalty cases involve confession statements 
supposedly made to informants or jailhouse "snitches" (of the 20 DNA-related 
exonerations in death penalty cases, 10 involved testimony by informants).

Around the world, the most serious murders are often "solved" using 
interrogations and confessions. In Japan, Iwao Hakamada spent a horrifying 47 
years on death row based on a false confession, until DNA tests exonerated him. 
Indeed, in Japan - and Japan is far from alone in this respect - nearly all 
criminal cases generally rely on confessions to police.

Interrogations themselves can be improved through safeguards such as 
videotaping. But the death penalty itself cannot be made foolproof - and 
indeed, high-profile murder investigations may be even more prone to tragic 
errors.

This is a problem internationally and in any criminal justice system, since 
error is inevitable. The death penalty makes those errors irreversible and in 
the most serious criminal cases. As most states in the US have realised, as 
most of the globe has realised - and as four US Supreme Court justices seem to 
have realised: the death penalty is broken and it cannot be fixed.

(source: truth-out.org)

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

Supreme Court to Decide 3 Thorny Capital Cases


The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in 
October on 3 tough cases on capital punishment from the minority of states 
which still maintain a de facto death penalty.

In Kansas v. Carr, Gleason, the issues presented involve the trial judge's 
instruction to the jury and the question of joinder and severance for 2 
defendants during the sentencing proceeding. Carr and Gleason were brothers who 
were convicted of a series of brutal rapes and murders during a crime spree in 
Wichita, Kansas in 2000. There was little doubt as to the result of the guilt 
phase of the trial.

During the death penalty hearing the judge denied the defendants' request for 
severance of their cases. The defendants' case of mitigation was in the words 
of the Kansas Supreme Court, "so weak it would not pull the skin off of rice 
pudding." Although the evidence was not openly antagonistic between the 2 
defendants, the appellate court later speculated that some of the evidence may 
not have been admitted against both defendants if there had been separate 
proceedings. The jury's verdict was death.

The Kansas Supreme Court affirmed the convictions but reversed the sentences as 
a violation of the 8th Amendment prohibition against cruel and unusual 
punishment. The joint proceeding deprived the defendants of an individualized 
sentence determination. The court went on to hold that the trial judge should 
have instructed the jury that the defendant need not prove mitigating 
circumstances beyond a reasonable doubt. Instead, the judge had instructed that 
each juror should assess and weigh the mitigating circumstances.

Predicting the Court's decisions in the emotion-packed morass of death penalty 
cases is never easy but not as difficult as divining the rationales of each 
Justice to support her/his vote. Separating the ultimate result from the nuance 
of the legal issue without distorting the evolution of the case law in 
non-capital cases has been a tortured exercise for decades. The defendants 
point to little concrete harm that resulted from the joinder, but this seems 
the better issue for them. The instruction issue seems less persuasive.

Hurst v Florida

The following week, October 13th, the Court will hear the case of Hurst v. 
Florida on whether its previous case of Ring v. Arizona should be extended to 
void the Florida practice of making the jury's sentence verdict as only 
advisory to the trial judge, who makes the decision on a penalty of death, as 
well as issues on how the jury goes about deciding the advisory verdict.

Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a 
Popeye's Fried Chicken restaurant in Escambia County Florida in 1998. The 
psychologists testified that Hurst's IQ was between 69 and 78 and therefore not 
ineligible for the death penalty as being "retarded."

The jury's advisory verdict to the trial judge did not identify which 
"aggravators" they found or whether a majority agreed on a single theory. They 
voted 7-5 to recommend death. This procedure leaves open the possibility that 
less than a majority agreed on a single aggravating circumstance, which would 
justify the jury's recommendation. The trial judge conducted his own hearing on 
the issue and ultimately sentenced Hurst to death.

The Supreme Court in Ring held that whether the State has proven beyond a 
reasonable doubt the necessary aggravating circumstance warranting a death 
verdict is an issue of fact finding for the jury to determine. It did not spell 
out whether that decision had to be binding on the sentencing judge or how the 
jury was to go about the process. The case left some knotty issues: whether the 
jury's role could be in the form of an advisory opinion to the trial judge; 
whether individual jurors could use different theories of aggravation; and 
whether the vote of a majority of the jury was a constitutionally adequate 
verdict.

Florida death penalty litigation has been a fertile ground for death penalty 
opponents. The state may want to allow Texas to devise the statutory system 
since Texas has been so much more efficient and successful at imposing and 
upholding its death verdicts and administering the fatal drug combination.

It is hard to believe that the Supreme Court will uphold a system in which all 
three of the potential issues left over from Ring have coalesced. Justice 
Breyer has already made clear his own views that only juries can decide to 
impose a death verdict. Both he and Justice Ginsburg have called for the Court 
to accept a case on the issue of the constitutionality of the death penalty 
itself.

Montgomery v Louisiana

The 3rd capital sentencing case for October, Montgomery v. Louisiana, did not 
ultimately result in a death penalty but life without parole imposed on a 
juvenile. Henry Montgomery was a 17 year old African American 11th grader with 
an IQ in the 70s who shot and killed a white Sheriff Deputy in East Baton 
Rouge, Louisiana in 1963. With crosses burning in the neighborhoods and the KKK 
actively promoting racial tension, Montgomery was convicted and sentenced to 
death without any opportunity to present mitigating circumstances during a 
sentencing proceeding.

The Louisiana Supreme Court reversed, he was re-tried, convicted and 
automatically sentenced to life imprisonment without possibility of parole. 
Montgomery is now 69 years old and has been in prison for 52 years.

In 2012 the Supreme Court in Miller v. Alabama held that sentences of mandatory 
life without parole for defendants under the age of 18 violated the 8th 
Amendment. But the Court has never decided whether Miller should be applied 
retroactively.

Retroactivity in criminal procedure cases is determined by a 1989 Supreme Court 
case called Teague v. Lane, whose rule requires the finding either that the 
decision involves a new substantive rule of criminal constitutional procedure 
or, if procedural rather than substantive, whether the case implicates 
fundamental fairness and accuracy of the criminal proceeding.

These are slippery concepts and there are those who think that the Justices 
first decide the end result of the case from a policy perspective and then 
apply the Teague rule accordingly. The equities of the Montgomery case weigh on 
both sides of the balance. A law enforcement officer was killed, but a half 
century has passed since the defendant killed him. For my money, once you 
decide to make the sentence unavailable for minors (whether you agree with this 
policy or not), to make it not applicable to cases after 50 plus years seems 
fundamentally unfair.

Three cases with thorny legal issues to be decided under the rule of law as 
part of a larger agonizing debate about whether we should have 2 systems of 
punishment in this country, one by the vast majority of states which have 
concluded for various principled and practical reasons to abolish the death 
penalty, and the other in a handful of states which have concluded that the 
ultimate penalty of death is necessary for their system of criminal justice. 
Anomalies will always exist in a federal system but few seem so profoundly 
perplexing.

(source: Ross Parker was chief of the criminal division in the U.S. Attorney's 
Office in Detroit for 8 years and worked as an AUSA for 28 in that office; 
ticklethewire.com)






US MILITARY:

Military court upholds death sentence in 2003 'fragging' case


The nation's highest military court has affirmed the conviction and death 
sentence for a University of California, Davis, graduate who admitted killing 2 
fellow U.S. soldiers at the start of the Iraq War.

In a closely split decision, the U.S. Court of Appeals for the Armed Forces 
rejected claims by Los Angeles native Hasan K. Akbar that his original defense 
team was ineffective. Akbar argued at trial that he was mentally ill when he 
killed 2 and wounded 14 in the March 2003 attack in Kuwait.

"We conclude that if there ever was a case where a military court-martial panel 
would impose the death penalty, this was it," Judge Kevin A. Ohlson wrote.

The court's 3-2 decision leaves Akbar 1 of 6 military men to be facing 
execution at the U.S. Disciplinary Barracks in Leavenworth, Kan. Though he had 
launched a wide-ranging challenge to his conviction and sentence, a big part of 
the case decided Wednesday dealt with his claim of ineffective counsel.

"With the benefit of appellate hindsight, we could dissect every move of these 
trial defense counsel and then impose our own views on how they could have 
handled certain matters differently and, perhaps, better," Ohlson noted. 
"However, that is not the standard of review we are obligated to apply."

Ohlson, a former Army paratrooper and federal prosecutor appointed to the court 
by President Barack Obama, observed that Akbar was "represented by 2 
experienced military attorneys who devoted more than 2 years to preparing and 
presenting the defense in this case."

The 2 dissenting judges countered that Akbar's trial defense attorneys fell 
short, with specific mistakes that included providing Akbar's 313-page diary to 
the court-martial panel.

"These pages included a running diatribe against Caucasians and the United 
States dating back 12 years, and included repeated references to (his) desire 
to kill American soldiers 'for Allah' and for 'jihad," Judge James E. Baker 
noted.

Baker, who has since retired, explained that "the defense intended the diary to 
reflect (Akbar's) descent into mental illness," but that it was "offered 
without adequate explanation, expert or otherwise."

More broadly, Baker observed that the defense team had a hard time in making 
the case for Akbar because "the armed forces have no guidelines regarding the 
qualifications, training, or performance required of capital defense counsel."

Born Mark Fidel Kools, the son of a felon and the product of broken home, Akbar 
was from a young age "indoctrinated in the Nation of Islam's militant 
teachings," defense attorneys recounted in a brief.

Nonetheless a top student in high school, Akbar graduated in 1997 from UC-Davis 
with dual degrees in aeronautical and mechanical engineering. Akbar took 9 
years to complete college, subsequently enlisting in the Army in 1998.

He was a sergeant assigned to the 326th Engineer Battalion of the 101st 
Airborne Division when his unit deployed to Kuwait. Early on the morning of 
March 23, 2003, as the U.S. invasion of Iraq was unfolding, Akbar threw 
incendiary and fragmentation grenades and fired his M-4 rifle in his solo 
assault on officers sleeping in several tents.

Army Capt. Christopher S. Seifert, a Pennsylvania native and intelligence 
officer, and Air Force Maj. Gregory L. Stone, a Boise resident and member of 
the Idaho Air National Guard, died in the attack.

Stone, the appeals court noted, "was killed from 83 shrapnel wounds."

The Army's subsequent investigation found evidence that Akbar had previously 
contemplated attacking his fellow soldiers.

"As soon as I am in Iraq, I am going to try and kill as many of them as 
possible," Akbar wrote in a Feb. 4, 2003, diary entry, made public at his 
court-martial held at Fort Bragg, N.C.

The court-martial panel required only 2 1/2 hours to convict Akbar, a decision 
later upheld by the U.S. Army Court of Criminal Appeals. Akbar's attorneys 
subsequently challenged the conviction and death sentence in a massive 328-page 
brief submitted to the U.S. Court of Appeals for the Armed Forces, a panel of 
civilians based in Washington.

"Against all odds," Army Capt. Aaron R. Inkenbrandt and Akbar's other appellate 
attorneys wrote, "Akbar seemed fated for success, until mental illness weakened 
the resolve that for so long repressed years of deprivation."

(source: San Luis Obispo Tribune)