[Deathpenalty] death penalty news----KY., KAN., NEB., CALIF., USA

[Rick Halperin]

Nov. 10



KENTUCKY:

Letters on death penalty package


As usual The Courier-Journal only presents 1 side of an issue. Sunday's Forum 
(Nov. 8) had several articles protesting the death penalty, but none with a 
pro-death penalty alternative.

When a killer murders people, with no questions of guilt, some courts have the 
choice of the death penalty or a government-funded retirement package, offering 
food, shelter, clothing, medical services, recreational facilities and the 
chance to obtain educational degrees. Most people work their entire lives to 
receive retirement packages not nearly as complete as what murderers get. This 
doesn't make sense! The next time a murderer is found guilty, see what our 
courts give the person, a death penalty or a retirement package.

Dick Cesler

Louisville 40299

---

"Unjust. Unfair. Costly. Dehumanizing." These words topped the Forum coverage 
of the death penalty, but one word was missing: "Association."

I know Americans are loathe to consider us anything but "exceptional," but the 
most compelling argument against this barbaric punishment is the company we 
keep.

China, Iran, Iraq, North Korea and Saudi Arabia use the death penalty. Great 
Britain, France and the rest of the European Union do not. (Texas alone, with 
12, would be 10th on a worldwide list of most executions for 2015.)

France and Denmark may be punchlines in our presidential debates but shouldn't 
we be keeping better company?

John Carbone

Louisville Ky

---

"Time to abolish the death penalty"? Are you kidding? We are supposed to be a 
benevolent society. Right? While I agree we should not be cruel to those who 
are convicted of a crime, we should and must assure that the penalty reflects 
the crime.

Should a person who rapes, tortures and burns to death another innocent human 
being be allowed to live a long and comfortable life? I don't think so. If we 
are a truly civilized society and if we cherish human life a person who commits 
the ultimate crime against society should and must suffer the ultimate penalty 
and lose their life.

I am not saying that anyone responsible for the death of another should die. Of 
course not. But there are some crimes so despicable, so horrendous, so vile, so 
repulsive that the perpetrator must not be allowed to keep their own life.

By abolishing the death penalty we do not show the world that we cherish human 
life. Just the opposite is true, we minimize human life.

Paul Lon

Jeffersontown, KY 40299

---

At the risk of sounding like an apostate from my Church's stance, let me state 
that there is another way to view the death penalty system, rather than 
constantly condemning it. Here are some anti-death penalty statements and (to 
me, anyway) some logical rebuttals.

There is Declining Support for the Death Penalty. In the 1990s, the support for 
the death penalty was around 80 %, so there is a definite decline in support as 
of 2014. However, 61 % of the public still supports the death penalty (Gallup, 
May 14 poll) and 44 % say it's not used enough. So to say that there is 
declining support for the death penalty, while true, is not entirely honest. If 
you use that logic to say there is a "sea change" in opinion, then let's just 
allow gay marriage everywhere, for example, as more people now support it than 
ever did before.

The Death Penalty is Racially Biased. Since 1976 there have been 1,386 
executions. 56 % of these were white felons, only 34% black. According to a 
December 2014 Department of Justice report, 
(http://www.bjs.gov/content/pub/pdf/cp13st.pdf) blacks currently make up 42 % 
of death-row inmates, whites at 56 %. Hardly a racial bias, unless, perhaps, 
you're white. The crime -- not the color of the criminal -- should be the 
determinant.

The Costs of the Death Penalty are Exorbitant. Admittedly, this is true, when 
you factor jury selection, extra evidence and time allowed to admit it, the 
automatic appeals process, and further appeals, etc. It's easily a million 
dollars when all is said and done. I would submit that if we streamlined the 
appeals process and formed special courts just for handling these cases, we'd 
reduce costs and superfluous appeals. In addition, consider this: to house an 
inmate (depending on the state) runs from $28,000 (North Carolina) to more than 
$47,000 (California) per year. This counts their health care, rehabilitation 
programs, security and logistics costs to supervise them, etc. If you sentence 
someone to prison for life when they're 20, and they live to be, say, 75, then 
using this range of costs the taxpayers will spend between 1.5 - 2.6 million 
dollars, on average, to let one death inmate stay alive. Think of how that 
money could be instead used for the impoverished, or toward education, or to 
rebuild our nation's infrastructure.

The Death Penalty isn't a Deterrent. While nearly everyone agrees with this, 
we???re talking apples and oranges. While the threat of the death penalty 
doesn't deter the commission of a crime, it lowers the recidivism rate (i.e., 
the recurrence of crime by an individual) to zero.

It is Cruel and Unusual Punishment. Supreme Court verdicts over the years have 
consistently disagreed with that statement. And ask yourself if it isn't 
somehow more "cruel" to lock a man up like a dog in a cage for the rest of his 
life, even with TV and exercise facilities at their prison.

Another question you need to ask: what if it were your child who was raped, 
murdered, strangled, or abused? Is the report of a "poor" inmate - someone who 
raped and murdered a pregnant girl and buried her alive -- gasping for air for 
an hour on the execution gurney really the moral equivalent of the crime they 
committed? For every family member who forgave the killer in question, I would 
submit to you that there are at least the same amount -- or more - who support 
equal retribution for the crime they committed.

The Religious Argument(s): (1) It's God Who Determines Who Takes a Life. Romans 
13 tells us to obey the government, as it was set up by God. Obviously you 
shouldn't obey a morally wrong government, but are we morally wrong in 
executing a handful of incorrigible thugs for their heinous crimes? And if you 
follow this line of reasoning, then we shouldn't be fighting wars, lest we kill 
an innocent human being. (2) If you shy from executions because of the phrase, 
"Vengeance is Mine, Sayeth the Lord," then ask whose hand God used to exact 
vengeance, say, on the Axis powers during World War II. He was with "the good 
guys," but we are God's tools on Earth, and we work His ways through our 
actions (or lack thereof). (3) We are all God's creatures. I would reply, "Yes; 
but so what?" Hitler was one of God's creatures, as was Charlie Manson, as are 
the ISIS radicals in the MidEast. Even Satan was once an angel. The argument is 
specious. Just because we're children of God doesn't mean that His children 
don't rebel or "act badly." And God tells us of the punishment for those who 
stray from Him and His ways.

There are currently only about 3,000 inmates on death row nationwide. Why are 
we expending so much angst for people who have chosen - of their own free will 
- to distance themselves from God and to commit such grievous sins on their 
fellow citizens? I will readily admit that the wrongful accusation (and 
exoneration) numbers that we now see should cause a thorough review of every 
death penalty case, to preclude the truly innocent (of that crime, anyway) from 
being executed. In the past 5 years an average of 5 people a year have been 
DNA-cleared from death row. So attention to detail should be used in every 
instance to ensure that only the truly guilty are executed. But to expend 
mountains of time and energy for the sake of a mere 3,100 murders, rapists, and 
molesters so they can live the rest of their lives on the taxpayer's dole -- 
even as we complain about the cost of building new prisons to house these 
long-term felons - seems to defy logic.

Mark Fassio

Pendleton, Ky. 40055

---

I disagree with the position taken by Rep. David Floyd in Death Penalty Has 
Been Bad Investment For Kentucky and the essence of what the rest of those have 
written about the same subject in Sunday's Forum section. There are cases where 
the penalty for committing a particularly heinous crime DO deserve the taking 
of the perpetrator's life.

The fact that those in the religious, legal, and political professions have 
made its use so convoluted, corrupt, and unfairly applied (as these pieces 
note) does not mean that it is morally wrong, nor fair, or unjust to do so. If 
St. Thomas Aquinas' "just war doctrine" can be made for our efforts to secure 
oil and kill off a virulent sect of Islam because of a "greater good" I have no 
problem in taking the life of a convicted child rapist and murderer. The latter 
being just one example, there are others, of societal appropriateness.

What we need here in its application is honesty, clarity, and finality. Not the 
furtherance of religious, political agendas and cottage industries surrounding 
the current law. To do so the following changes in policy and procedures should 
be made: All executions will be done via firing squad. All legal appeals 
completed within 11 months of conviction and executions within a month after 
that, i.e., total 1 year time frame from conviction to death maximum. No 
exceptions, if the 365 day limit is not met the convicted individual is set 
free. Period.

Easy as 1, 2, 3.

Joseph C. Kopacz

Prospect, Ky. 40059

---

Take this as a "Super Rant:" opponents of the death penalty as posited by 
Sunday's CJ are laboring under the weight of personal convictions that contend 
society is "civilized." Guess again. Take a look around at the world. .. the 
USA just happens to have enacted, practiced and enforced a state of morality 
that surpasses most nations. Given our crime rates, our civilized society 
"sucks" in many respects.

I hold that those that demonstrate unmitigated threat to the common weal earn 
immediate elimination. The litigious construct of interminable pleas by 
self-serving lawyers - I refuse to recognize them as a profession - more akin 
to leeches, aggrandizers, parsers, obfuscators, et al. All under the guise of 
"rights."

In my book, you kill and you will be summarily killed. You have forfeited any 
"rights" by dint of your actions. Now what about questionable guilt? Demand 
firm limits on establishment of culpability. Period. What about errors? Too 
bad.

Lead a life so civil there is never a doubt you are innocent.The public 
taxpayer does not owe the criminal element anything beyond a minimal 
life-sustaining incarceration.

Robert A. Korkin

Louisville, 40205

(source: Letters to the Editor Courier-Journal)






KANSAS:

White Supremacist to Learn If He Will Be Sentenced to Death


A Missouri white supremacist who killed 3 people at 2 Kansas Jewish sites last 
year is about to find out if he will be sentenced to death.

Frazier Glenn Miller Jr. was convicted in August of capital murder, attempted 
murder and other charges. The same jury that convicted him after a weeklong 
trial recommended the death penalty.

Johnson County District Judge Thomas Kelly Ryan will announce his ruling at a 
sentencing hearing Tuesday.

Miller is an avowed anti-Semite who said his intent was to kill as many Jewish 
people as he could on April 13, 2014, when he went to Overland Park, Kansas, 
and opened fire at 2 Jewish centers.

The 74-year-old Aurora, Missouri, man has chronic emphysema and says he doesn't 
think he has much longer to live.

(source: Associated Press)






NEBRASKA:

Nebraska Corrections Director grilled over execution drugs


Nebraska's corrections director is facing criticism for spending more than 
$54,000 on foreign-made lethal injection drugs in May that the state still 
hasn't received.

Members of a legislative oversight committee grilled Scott Frakes on Thursday, 
saying he approved the pre-payment without following typical procedures or 
taking steps to ensure the state could recover the money.

"What we saw at the tail end of today's hearing," Sen. Paul Schumacher, of 
Columbus, said, "was a lot of politics and not very much business."

Schumacher was referencing how Frakes relied on attorney-client privilege with 
the Attorney General's office to not answer specific questions, and how Frakes 
seemed unable to remember particular details or conversations with Governor 
Pete Ricketts regarding the drugs.

Lawmakers said there's a very good chance the taxpayer dollars the state paid 
will never be seen again, and the drugs will likely never be imported to the 
state.

Legal experts and lawmakers have said the FDA will not import the drug death 
penalty proponents are seeking.

State officials bought the supply from Chris Harris, a distributor in India who 
sold execution drugs to the state in 2010. The drugs' manufacturer later 
accused Harris of misrepresenting how he intended to use them.

Frakes acknowledged under questioning that he allowed Harris to dictate the 
price of sodium thiopental and pancuronium bromide, both of which are required 
in Nebraska's 3-drug protocol. He disputed that the state's efforts to import 
the drugs violate federal law.

In the 4 1/2 hour meeting Thursday, lawmakers also asked Frakes about the 
progress he's making during his 1st year as director. Senators were 
disappointed in auditor's complaints that it took awhile to receive important 
documents needed to complete the audit released Monday.

"It would be frustrating if I were waiting for documentation to answer a 
question and I wasn't getting it," Frakes said.

"That's why I inserted myself in the process early on."

Lawmakers said they appreciated Frakes involvement in the process, but, wanted 
to make sure a similar situation didn't happen again.

Frakes was not asked about his strategic plan released Wednesday that details 
immediate goals in the next 2 years and long term goals spanning the next 6 
years.

State representatives said they'd had less than 24 hours to review the material 
and need to ask him questions at a later date.

"We recognize that a substantial amount of money and substantial haste has got 
to be put into the corrections department," Schumacher said.

"We're lucky we have not been taken to task in the federal courts at this 
point."

(source: KGWN news)






CALIFORNIA:

Judge denies attempt to tie murders to convicted serial killer on death row


After more than 5 days of hearings about DNA evidence related to the "Grim 
Sleeper" killings of 9 women and a teenage girl, a judge Monday denied a 
defense motion to present evidence suggesting that 20 other people, including 
an already convicted serial killer, might be responsible for the crimes.

Lonnie Franklin, a 63-year-old former city employee, is charged with the "Grim 
Sleeper" murders. Prosecutors are seeking the death penalty.

An expert called by defense attorney Seymour Amster testified that some DNA 
evidence related to the crimes could be linked to convicted serial killer 
Chester Turner and 19 other less notorious individuals.

But Los Angeles Superior Court Judge Kathleen Kennedy said the defense expert's 
analysis fell short of scientific standards and ruled that the DNA testimony - 
called 3rd-party culpability evidence - would not be allowed at trial or during 
the penalty phase.

Another motions hearing on other matters is scheduled for Nov. 16. Jury 
selection in the long-delayed case is expected to begin Dec. 15.

Franklin is charged with the murders of 9 women - who were mostly in their 20s 
- and a 15-year-old girl. The victims' bodies were dumped in alleys and trash 
bins in and around South Los Angeles, Inglewood and unincorporated county 
areas. He is also charged with the attempted murder of another woman.

The killings occurred between 1985 and 1988, and 2002 and 2007, with the 
assailant dubbed the "Grim Sleeper" because of the roughly 13-year break 
between killing sprees.

Detectives have said they are also investigating whether Franklin might be 
connected to the disappearances or deaths of 8 other women whose photos were 
found in his home near 81st Street and Harvard Boulevard.

Chester Turner was sentenced to death in 2007 for 10 murders that occurred 
between 1987 and 1998. He was charged with 4 more killings and convicted in 
2014, and was again sentenced to death.

(source: mynewsla.com)






USA:

Foster claims racial bias, takes death row case to Supreme Court


The most striking thing about Foster v. Chatman isn't the very strong evidence 
of race discrimination that brought this death penalty case to the Supreme 
Court - it is the nearly comic levels of incompetence by the prosecution that 
enabled this race discrimination to be discovered.

Jury selection, in the end, boils down to how prosecution and defense lawyers 
use their so-called peremptory strikes. Just like prosecutors have an interest 
in securing convictions by drawing a jury panel that's sympathetic to their 
case, defense lawyers too want jurors who will view their client favorably.

The U.S. Supreme Court struggled on Monday over how to resolve an appeal by a 
black Georgia death row inmate convicted of murdering an elderly white woman in 
a 1987 trial in which he contends prosecutors unlawfully excluded black jury 
candidates.

Foster's attorneys hope that, if the Supreme Court does, in fact, decide that 
the jury selection process is racist and discriminatory (as it was applied in 
his case), he will be given a new trial.

A 1986 Supreme Court ruling made it unlawful to take race into account when 
excluding potential jurors from a trial. Proving a racial motive can be 
complicated, as attorneys manage to concoct other reasons for their peremptory 
challenge.

5 different courts in Georgia, including the state supreme court, have examined 
the prosecutors' actions and found them acceptable. Chief Justice John Roberts 
and Justice Samuel Alito noted prosecutors objected to a few of the black 
jurors because they were women or relatively young, but they did not refute the 
emphasis on race.

"Doesn't that show pretext?" A North Carolina study of jury selection in 173 
death penalty cases found that black prospective jurors were more than twice as 
likely to be struck by the prosecution as similarly situated white jurors.

In Foster's case, the reasons the prosecution gave for excluding black jurors 
are described by Huffington Post writer Cristian Farias as "bulls**t". Finally, 
notes also indicated the prosecutors and investigator ranked the black jurors 
against each other if "it came down to having to pick 1 of the black jurors". 
"Meanwhile, prosecutors accepted every white teacher and teacher's aide in the 
jury pool".

The trial court concluded that the 'prosecutors involved undertook long and 
careful assessment based on many factors, 'which contributed to the court's 
finding there was no purposeful discrimination in the strikes. No black jurors 
sat in Foster's trial. Another failed to make eye contact. In the notes, the 
names of potential black jurors were highlighted and marked with a letter "B".

Arguing for Foster, Stephen Bright painted a picture for The Court of the 
systemic racism that was known to permeate the judicial system in Rome, 
Georgia.

"Surely it is the judge that hears the testimony who is best able to judge 
whether asserted reasons are phony reasons or not', he said.

"What do we do with the failure of the prosecutor to even ask these black 
jurors about their concerns?"

"Some lower courts have upheld a strike if they can find there is one 
legitimate reason for it", Justice Sonia Sotomayor observed.

According to Bright, the states' race-neutral justifications don't hold up.

Burton tried to persuade the justices that the notes focused on black people in 
the jury pool because prosecutors were preparing to defend against 
discrimination claims.

"They insisted that the Church of Christ took a strong position against the 
death penalty and that any member of the Church of Christ would vote against 
the death penalty", Bright says.

Then there was prospective juror Marilyn Garrett.

Once the procedural discussions were concluded, a majority of justices appeared 
to side with Foster, suggesting he may yet have his death sentence overturned 
and a retrial ordered.

The state of Georgia refused to provide anyone to be interviewed for this 
story.

Foster???s attorneys also point to inconsistencies between the prosecution???s 
explanation for removing jurors and the record in the case.

On Monday, the case arrives at the United States Supreme Court.

Judges seem to have a high threshold for seeing racial bias, even in supposedly 
liberal states.

Many defense attorneys and legal scholars argue that Batson v. Kentucky has 
proved to be a weak regulator of behavior.

(source: or-politics.com)

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

New Report Shines Light on Military Veterans Facing the Death Penalty----Key 
Decision Makers in Justice System Often Ignore Critical Mitigating Evidence 
Related to Vets' Service


More than 1 million veterans have returned from wars in Vietnam, Afghanistan, 
and the Middle East with symptoms of Post-Traumatic Stress Disorder (PTSD). 
Most veterans go on to live exemplary lives and are rightly honored for bravely 
serving their country. However, for a small but significant number, their 
mental wounds contributed to their committing acts of violence and they are now 
on death row. Many others with similar problems have already been executed.

A new report released on the eve of Veterans Day by the Death Penalty 
Information Center (DPIC) exposes the scope of this crisis and calls on 
authorities to better account for service members facing execution and identify 
where the system has fallen short. DPIC estimates that there are at least 300 
veterans on death row, representing about 10 % of the nation's death row 
population.

As the country prepares to honor its military veterans on November 11, it may 
be a sobering and surprising revelation that many veterans have been adjudged 
as "the worst of the worst," condemned to death, and executed by the government 
they once served. The 1st person executed this year was Andrew Brannan, a 
decorated combat veteran who fought in Vietnam, but returned with PTSD. He 
qualified for 100 % disability from the Veterans Administration because of his 
mental disabilities. In a fleeting moment of out-of-character violence, he 
killed a police officer who had stopped him for speeding. At his trial, 
Brannan's lawyer made little mention of the mental scars from his military 
service and the prosecution mocked his claim of PTSD. The Georgia Board of 
Pardons and Paroles denied him clemency. Other veterans have received their 
medals for dedicated service while on death row, but no real mercy.

"PTSD is not an excuse for all criminal acts, but it is a serious mental and 
emotional disorder that should be a strong mitigating factor against imposing 
the death penalty," said Richard Dieter, DPIC's Senior Program Director and the 
author of "Battle Scars: Military Veterans and the Death Penalty." "Defense 
attorneys representing veterans accused of capital crimes often fail to 
investigate and present evidence of PTSD and other war-related mental injuries. 
Prosecutors, judges and juries are often not adequately informed about the 
psychological effects of being immersed in combat, even though the mental scars 
of war can be just as debilitating as physical injuries."

"At a time in which the death penalty is being imposed less and less, it is 
disturbing that so many veterans who were mentally and emotionally scarred 
while serving their country are now facing execution," said Robert Dunham, 
Executive Director of DPIC. "It is our hope that a better understanding of the 
extreme and long-lasting effects of trauma and the resulting disabilities many 
veterans have experienced will lead to a larger conversation about imposing 
capital punishment on trauma survivors and other people with severe mental 
illnesses."

The report is not offered as the final word on this important issue, but rather 
is intended as a wake-up call to government officials and the public that some 
veterans are being left behind.???

(source: source: Death Penalty Information Center)

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

300 Veterans, Some With PTSD, Are on Death Row: Report


During Courtney Lockhart's capital murder trial, the jury heard testimony that 
he had returned from a bloody 16-month deployment to Ramadi, Iraq, a changed 
man.

His sweet nature was replaced by anger and paranoia, his ex-fiancee said. He 
hid in the closet at night, started living out of his car, drank too much and 
once put a gun to his own head.

The defense argued he was suffering from untreated PTSD and that he wasn't in 
his right mind when he abducted, robbed and fatally shot college student Lauren 
Burk in 2008.

The Alabama jury rejected the prosecution's call for the death penalty and 
sentenced him to life. But in a rare move, a judge overrode the panel's 
decision and put him on death row.

The case of Lockhart - whose brigade had a dozen other men charged with murder 
or attempted murder after coming home from Iraq - is highlighted in a new 
report by the Death Penalty Information Center, a group that opposes capital 
punishment.

"At a time in which the death penalty is being imposed less and less, it is 
disturbing that so many veterans who were mentally and emotionally scarred 
while serving their country are now facing execution," said Robert Dunham, the 
center's executive director.

About 300 veterans are on death row nationwide, about 10 percent of all those 
condemned to die, the group estimates.

It's unclear how many have been diagnosed with PTSD or have symptoms, but 
Dunham says that in too many cases, a veteran's mental scars are not examined 
closely enough by defense lawyers, prosecutors, judges, juries and governors 
who can commute death sentences.

The 1st prisoner executed this year, Andrew Brannan, was a Vietnam vet on 
disability for PTSD and bipolar disorder when he fatally shot a deputy nine 
times during a speeding stop.

Dash-cam video showed Brannan dancing in the street and saying "shoot me" 
before he pulled a rifle from his car and fatally shot the 22-year-old cop. The 
U.S. Supreme Court declined to stop his lethal injection.

Kent Scheidigger, legal director of the pro-capital punishment Criminal Justice 
Legal Foundation, said that since PTSD does not normally cause sufferers to 
become violent, the condition "may not have anything whatever to do with the 
crime."

"If a crime is sufficiently heinous, a death sentence may be the just outcome," 
he said. "Mental issues may be weighed in the balance, but they would have to 
be very severe before they outweighed, say, torture or serial killing."

At Lockhart's trial, according to media accounts at the time, a prosecution 
expert testified that he was not mentally ill and knew what he was doing was 
wrong when he killed Burk. A defense expert said he had symptoms of PTSD but 
not a diagnosed case.

After the jury heard testimony from those close to Lockhart about the problems 
he experienced after his military service, the panel voted 12-0 to spare his 
life, but the judge overruled them, saying they didn't know about other 
robberies he had committed.

Supreme Court Justice Sonia Sotomayor later wrote that jurors were "influenced 
by mitigating circumstances relating to severe psychological problems Lockhart 
suffered as a result of his combat in Iraq.''

"Lockhart spent 16 months in Iraq; 64 of the soldiers in his brigade never made 
it home, including Lockhart's best friend," she wrote. "The soldiers who 
survived all exhibited signs of posttraumatic stress disorder and other 
psychological conditions. 12 of them have been arrested for murder or attempted 
murder."

The Death Penalty Information Center said its report was meant as a "wake-up 
call" to spark conversation about imposing capital punishment on trauma 
survivors.

"The country owes its veterans a thorough examination of the use of the death 
penalty in their cases, even when their offenses are especially grievous," the 
report said.

(source: buzzfeed.com)

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

Military veterans on death row deserve special consideration, says 
report----With at least 300 veterans estimated to be awaiting execution - 10% 
of the total number - a new study says their service should be seen as a 
mitigating factor


For a fleeting moment in 2009, James Davis was a wounded war veteran belatedly 
receiving his Purple Heart 4 decades after he fought in Vietnam. But after the 
medal was pinned, it was removed, his shackles snapped back on, and he was 
escorted back to his cell on death row, where he remains to this day.

One spring day in 1995, Davis walked into a tool company in Asheville, North 
Carolina, and opened fire. With a rain of bullets, Davis killed 3 people, 
including 2 of his bosses who had fired him earlier that week.

As his murder the trial progressed, testimony showed that Davis was mentally 
ill, that he suffered from post-traumatic stress disorder, and that he had been 
abused as a child. But this was not raised until late into his trial, a misstep 
that advocates say led to Davis's death sentence.

Davis is 1 of hundreds former service members condemned to death at the hands 
of a government they risked their lives to protect and serve, according to a 
report, Battle Scars: Military Veterans and the Death Penalty, published by the 
Death Penalty Information Center on Tuesday.

"The government shouldn't be taking the life of people who spent part of their 
life serving the government and were wounded mentally in that process," said 
Richard Dieter, the center's senior program director and the author of the 
report. "Their service should exclude them from being treated as the 'worst of 
the worst'. It's a mitigating factor, the same as age or disability might 
remove them from part of the death penalty. It's an exemption from part of the 
punishment, certainly not all of it."

As the nation prepares to honor its citizens who have served in the US armed 
forces on 11 November, Dieter said he hopes the report will act as a "wake-up 
call" for the criminal justice system and the American public warning them that 
they have failed a small but significant population of veterans.

Though the exact number of veterans on death row is not known, the report 
estimates, based on a variety of surveys, that at least 10% of the condemned 
population in the US, at least 300 inmates, had prior military service - and 
more have already been executed.

"In a country that is proud of its renewed respect for veterans, and that is 
using the death penalty for a dwindling number of offenders, capital punishment 
stands out as a questionable punishment for those who have served in the 
military ..." he wrote in the report. "The country owes its veterans a thorough 
examination of the use of the death penalty in their cases, even when their 
offenses are especially grievous."

Decades of studies on former servicemen and women have established ties between 
combat in war zones and increased rates of unemployment, substance abuse, 
domestic violence, homelessness and criminality.

The report includes several recommendations for keeping veterans off death row 
including "mental health assessments for capitally charged veterans by 
professionals with experience in military health issues; mandatory training and 
assistance for defense teams handling such litigation from military experts; 
education about PTSD and related matters for prosecutors, judges, and defense 
attorneys who may be involved in such cases; allowance of mitigation testimony 
regarding military culture at capital trials; questioning of potential jurors 
regarding their views about the military; and allowing VA therapists to testify 
in capital cases".

Most surprising, Dieter said, was how often a veteran's military service was 
overlooked, discounted or even presented as an aggravating factor in capital 
cases.

"Defense attorneys failed to investigate this critical area of mitigation; 
prosecutors dismissed, or even belittled, their claims of mental trauma from 
the war; judges discounted such evidence on appeal; and governors passed on 
their opportunity to bestow the country???s mercy," he wrote in the report.

A defendant's military history is a "double-edged sword", said Ken Rose, a 
defense attorney with the Center for Death Penalty Litigation in North Carolina 
who represents clients sentenced to death, including Davis, because lawyers, 
juries and judges can interpret it as both a mitigating and an aggravating 
factor.

"On the one hand it shows a commitment to the country. It's patriotic and 
sometimes even a heroic service to the nation," said Rose, who represents 
Davis. "But at the same time it can be seen as an indication that their client 
is a mad dog - a person who is totally out of control, who may get out and kill 
again."

Rose agrees with the report's suggestion that defense attorneys receive 
training when handling a case involving a veteran. To properly present a 
person's service as a solely mitigating factor, rather than an aggravating one, 
and sharply draw a connection between trauma suffered in combat and the act of 
violence takes a deep understanding of the military and mental illness, he 
said.

If not, Rose said: "Defense attorneys don't bring up this very valuable 
mitigating evidence for fear that it be turned against them."

The American public is starting to recognize the unique pressures veterans face 
when they return home from war, but the legal system has been slow to 
accommodate them, said Art Cody, the legal director at the Veterans Defense 
Program of the New York State Defenders Association. (Cody does not represent 
veterans in capital cases as New York does not have the death penalty.)

"Right now they're getting what I call the military discount," Cody said. "The 
military discount is, 'Well, just like at Home Depot, I'll give you 10% off so 
I'll give you 10 years instead of 12.'"

But in exchange for a more lenient punishment, Cody said he believes judges and 
prosecutors disregard testimony that is related to a defendant's combat 
experience and mental illness.

"We haven't reached the point yet where we're fully understanding the 
conditions that our troops are going through," Cody said.

(source: The Guardian)

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

When 'Race-Neutral' Reasons for Striking Jurors Aren't Neutral in the Slightest


Last week, the U.S. Supreme Court heard arguments in a case regarding whether 
Timothy Tyrone Foster lives or dies.

Nearly 30 years ago, an all-white jury sentenced Foster, then an 18-year-old 
Black kid, to death for the murder of an elderly white woman in Floyd County, 
Georgia. The prosecution had eliminated every eligible Black person from the 
jury pool. And once the prosecution had obtained an all-white jury, the lead 
prosecutor, Stephen Lanier, urged said jury to impose the death penalty in 
order to "deter other people out there in the projects."

The all-white jury obliged.

Now, one of the issues looming before the Supreme Court is whether or not the 
prosecution's purportedly race-neutral reasons for striking the Black jurors 
ensured that Foster would face a jury that would be susceptible to racially 
inflammatory comments like Lanier's.

The racism in Lanier's statement to the all-white jury about "other people out 
there in the projects" certainly seems clear - after all, at the time 32 of the 
34 units in the local housing projects were occupied by Black families. And 
it's hard to believe that Lanier would have made that statement to the jury if 
there were a Black person sitting in the box.

But there wasn't, because the prosecution had used its peremptory challenges to 
strike each of the four qualified Black jurors.

Lawyers in criminal cases are permitted to use nine peremptory challenges to 
eliminate jurors for any reason they want to, with some important limitations.

In 1986, in a case called Batson v. Kentucky, the U.S. Supreme Court ruled that 
jurors could not be excluded from sitting on a jury because of their race, and 
set up a system by which a trial court could hold a special Batson hearing and 
determine whether a prosecutor was striking jurors due to their race, or due to 
some race-neutral reason.

Foster, through his attorneys, asked the trial court to hold just such a 
hearing. Ultimately, the trial court didn't think that Lanier used his 
challenges to strike every Black juror because of their race.

Every subsequent appellate court agreed; the prosecution had provided 
sufficient race-neutral reasons for striking the Black jurors, they said, 
leaving Foster's fate in the hands of an all-white jury.

After that jury convicted Foster and sentenced him to death, Foster asked the 
court for a new trial. He argued that the trial court had made a mistake when 
it rejected his Batson claim. In response, the prosecution piled on even more 
"race-neutral" reasons for striking all of the Black jurors.

One of those reasons? That the investigator who helped the prosecution during 
jury selection was Black. This is about as close to "one of my best friends is 
Black" as you'll find in a legal context.

The court rejected Foster's Batson claim a 2nd time.

In 2006, almost 20 years after Foster was sentenced to die, his attorneys 
obtained copies of the prosecution's jury selection notes. And those notes 
changed everything, revealing almost mustache-twirling levels of villainy with 
regard to the prosecution's efforts to eliminate every Black juror from the 
pool.

The notes contained 4 copies of a list of prospective jurors. On each of the 4 
copies, the names of the Black jurors were highlighted in green and marked with 
the letter "B." On the juror questionnaires, where prospective jurors had 
indicated their race, the prosecution had circled the word "Black." All of the 
Black jurors were listed on the prosecution's list of "Definite NOs." And the 
prosecution ranked the Black prospective jurors in case, according to a draft 
affidavit signed by the prosecution's investigator, "it comes down to having to 
pick 1 of the black jurors."

The notes confirmed Foster's attorneys' suspicions. They had always believed 
that this was a clear case of racial discrimination. Before jury selection even 
had begun, they informed the trial court in a brief that the District 
Attorney's office had a nasty habit of excluding Black people "from being 
allowed to serve on juries with a black Defendant and a white victim."

And during Foster's Batson hearing after the jury selection process was over, 
Foster's attorneys pointed to a mountain of evidence that suggested the 
prosecution had repeated that nasty habit this time.

In response, the prosecution threw supposedly race-neutral reasons for striking 
jurors at the trial court like so much spaghetti on a wall. "All I have to do 
is have a race-neutral reason," Lanier said, "and all of these reasons that I 
have given the court are racially neutral."

Well, not exactly. A closer look at these reasons reveal that they are dubious 
at best.

During the Batson hearing, Lanier piled on explanations for why he eliminated 
all the Black jurors, presumably in the hopes that the court would latch onto 
one of them, even if other reasons were suspect.

Some of the reasons were thinly veiled dog whistles. Lanier claimed that each 
of the Black jurors was some combination of confused, incoherent, hostile, 
disrespectful, or nervous, and struck them on that basis.

Lanier also removed Black jurors from the jury pool for avoiding eye contact, 
being divorced, being a social worker, or appearing to be bored. When not 
criticizing the Black jurors for their demeanor in court, the prosecution 
exaggerated facts to make them look problematic, and gave reasons for striking 
Black jurors that applied to white ones who made it onto the jury.

For example, Lanier explained to the trial court that his approach in capital 
cases was to discriminate against women, not Black people: "Women have a 
tendency in a case of this nature where the death penalty is being sought - 
they have serious reservations, time conflicts, or whatever it may be, but that 
is what I look at when I am trying a death penalty case." (In 1994, long after 
Foster had already been convicted and sentenced to death, the Supreme Court 
ruled that barring women from serving on a jury violates the Equal Protection 
Clause.)

Of the 4 prospective Black jurors, three were women. In the end, 5 white women 
ended up serving on the jury.

In 1 specific instance, Lanier claimed that Marilyn Garrett, 1 Black juror, was 
too close in age to the defendant. She was 34. At the time of trial, the 
defendant was 19. The prosecution accepted 8 white prospective jurors who were 
35 or younger, including 1 who was 21 years old.

In another, Lanier struck a Black juror, Eddie Hood, because he "asked to be 
off the jury." But when Lanier used a peremptory challenge to strike a 
different Black juror, he said it was because that juror didn't ask to be off 
the jury.

The prosecution also kept changing their tune when justifying their peremptory 
challenges.

In Hood's case, Lanier originally said in the pre-trial hearing that he was 
concerned that Hood had an 18-year-old son, the same age as the defendant.

But on the motion for new trial, after the prosecution accepted 2 white jurors 
who had sons in the same age range as Foster, as well as the aforementioned 
21-year-old white man, Lanier switched gears. Suddenly, Hood's membership in 
the Church of Christ became the primary justification for eliminating him from 
the jury pool.

That reason was suspect too, however. Lanier claimed that the church 
"definitely takes a stand against the death penalty" even though Hood 
repeatedly said that he was not against the death penalty and was willing to 
impose it. Also, Lanier's claim was later contradicted by the prosecution's 
notes, which said the Church of Christ "doesn't take a stand on [the] Death 
Penalty," leaving the issue for "each individual member." And, more 
egregiously, the prosecution's notes said "NO. No Black Church" with an 
emphasis on "Black."

Lanier also said that one of the Black jurors "appeared to have a low income 
occupation." Notably, the Black juror's "low income occupation" counted against 
her, but a white woman who went on to serve on the jury had almost the same 
job. Both women were teacher's aides at local schools. In fact, the prosecution 
said that it wanted jurors that were "teachers or associated with teachers" 
because the victim was a retired schoolteacher. The prosecution proceeded to 
accept every teacher and teacher's aide - except the Black juror.

The prosecution tried to explain away the difference in the way they treated 
the Black and white teacher's aides by claiming that the Black teacher's aide 
worked with underprivileged kids, and the white teachers aides did not. But 
during jury questioning, Lanier did not ask about whether or not the students 
with whom the white teachers and teacher's aides worked were underprivileged.

These examples are but a few of the ridiculous reasons the prosecution offered 
to explain striking every potential Black juror. According to Foster's 
attorneys in the case currently before the Supreme Court, the new evidence from 
the prosecution's notes establishes that the prosecution purposefully 
eliminated Black jurors in order to secure an all-white jury; a jury that would 
impose the death penalty to send a message to Black people in the projects.

It's outrageous, but, sadly, this is simply part of a long tradition of racial 
discrimination in a jury selection system that has failed Black people since 
the founding of this nation.

Numerous studies show that prosecutors strike Black jurors at significantly 
higher rates than white jurors, demonstrating their failure to take seriously 
the requirement in the Constitution that every citizen has an equal right to 
sit on a jury.

In 2012, a North Carolina state court found, based on a study of jury pools in 
173 capital cases, that prosecutors were more than twice as likely to eliminate 
Black jurors from the jury pool than white jurors.

A 2012 study of 332 felony juries trials prosecuted in Caddo Parish, Louisiana, 
between 2003 and 2012 found that prosecutors struck Black jurors at more than 3 
times the rate that they struck white jurors.

And in death penalty cases between 2005 and 2009 in Houston County, Alabama, 
prosecutors used peremptory challenges to eliminate 80 % of qualified Black 
jurors.

This sort of discriminatory behavior harms criminal defendants, especially in 
death penalty cases where the defendant is Black and the victim is white. 
According to the Equal Justice Initiative, "all-white juries tend to spend less 
time deliberating, make more errors, and consider fewer perspectives."

The conduct also harms the excluded juror, who is prevented from participating 
in an important civic duty. Turning away Black jurors furthers stereotypes that 
Black people are unfit to serve on juries, creates false presumptions that 
Black people cannot be fair or follow the law, and, according to one Supreme 
Court case, Miller-El v. Dretke, undermines the integrity of our justice 
system.

This isn't just happenstance or bad behavior by a select group of rogue 
prosecutors. In many instances, prosecutors are trained to cover up racial 
discrimination in the jury selection process by keeping race-neutral 
explanations for striking Black jurors in their back pocket, lest defendants 
mount a Batson challenge, according to an amicus brief filed in Foster's 
Supreme Court case by a group of prosecutors, including author Scott Turow, and 
former Deputy Attorney General Larry Thompson, who served in the George W. Bush 
administration.

In North Carolina, for example, the North Carolina Conference of District 
Attorneys held a statewide training course that provided a list of 
justifications that prosecutors could use when striking Black jurors: a 
document entitled "Batson Justifications: Articulating Juror Negatives."

And in a now-infamous training video, former Philadelphia District Attorney 
Jack McMahon advised trainees that keeping Black, low-income, and educated 
citizens off juries is key to securing convictions.

As reported by Philly.com in 1997, McMahon's advice reached almost comical 
levels of racism as he explained to a group of trainees that:

In selecting blacks, you don't want the real educated ones. This goes across 
the board. All races. You don't want smart people. If you're sitting down and 
you're going to take blacks, you want older black men and women, particularly 
men. Older black men are very good ....

My experience, young black women are very bad. There's an antagonism. I guess 
maybe because they're downtrodden in 2 respects. They are women and they're 
black ... so they somehow want to take it out on somebody and you don't want it 
to be you ....

The blacks from the low-income areas are less likely to convict. I understand 
it. It's an understandable proposition. There's a resentment for law 
enforcement. There's a resentment for authority. And as a result, you don't 
want those people on your jury.

This sort of race-based jury selection isn't 1-sided. Just as prosecutors tend 
to eliminate Black jurors from jury pools, defense attorneys tend to eliminate 
white jurors. The only difference is, prosecutors generally have a larger group 
of white potential jurors to choose from, so it's often easy for a prosecutor 
to eliminate every Black juror from the jury pool. Defense attorneys cannot 
eliminate every white juror from the jury pool because there are too many of 
them. It's a simple numbers game.

If the Supreme Court actually addresses the crux of the case, it's likely that 
it will side with Foster's attorneys, leading to a new trial. After all, 4 
justices agreed to hear it in the 1st place, and it shouldn't be too difficult 
for those 4 to find a 5th to agree with them, especially in light of Snyder v. 
Louisiana, a factually similar case which saw Alito and Roberts siding with the 
liberal wing of the Court to find by a vote of 7 to 2 - with Alito writing the 
majority opinion - that the prosecution's use of peremptory challenges were not 
race-neutral.

I wouldn't be surprised if Alito and Roberts once again join the liberal wing 
if the Court rules in Foster's favor.

But, as Lyle Denniston points out over at SCOTUSblog, during oral arguments, 
the justices spent a lot of time on the procedural complications of the case. 
That may prevent the justices from even reaching the merits of the case - the 
Court may simply kick it back to state court and let Georgia sort it out.

If that doesn't happen, though, the Court will hopefully provide some guidance 
to trial courts about how to evaluate prosecutorial claims of race-neutrality, 
especially when there's overwhelming evidence that the prosecution is 
impermissibly eliminating Black jurors because of their race.

Ultimately, a Batson challenge is toothless if a prosecutor inventing 
after-the-fact race-neutral reasons for eliminating Black jurors can overcome 
it.

(source: rhrealitycheck.org)