[Deathpenalty] death penalty news----TEXAS, N.C., FLA. ALA.

[Rick Halperin]

Aug. 16



TEXAS----new execution date

Dad who killed girls has new execution date


John Battaglia - the man who murdered his young daughters out of revenge while 
their mother listened over the phone - has a new execution date.

State District Judge Robert Burns scheduled the execution for Dec. 7.

That doesn't necessarly mean the lethal dose of drugs will be administered 
inside the state's death chamber in Huntsville. A federal court has ordered a 
hearing to look into Battaglia's claims of mental incompetency. The execution 
date had to be set before the hearing could take place.

Battaglia, now 61, was scheduled to be executed in March but won a last-minute 
stay from the 5th U.S. Circuit Court of Appeals so his lawyer could pursue the 
incompetency claims.

No date has been set for the hearing in Burns' court.

Battaglia was sentenced to death for killing Faith, 9, and Liberty, 6, at his 
Deep Ellum loft in May 2001. He arranged a call with his ex-wife, who listened 
on the phone as the older girl begged: "No, Daddy! Don't do it!"

He later headed to a nearby tattoo parlor to have 2 red roses etched on his arm 
in memory of the girls. That night, he recorded a message on their answering 
machine: "Good night, my little babies. I hope you are resing in a different 
place. I love you."

Psychiatrists testified for the defense at his trial that Battaglia suffered 
from bipolar disorder. An adult daughter from his 1st marriage later said he 
was also diagnosed with narcissistic personality disorder, characterized by 
manipulative behavior, a hyper-inflated sense of self-improtance and lack of 
empathy.

Christine Womble, an appellate attorney at the Dallas County's district 
attorney's office, has said she's "confident" of Battaglia's guilt and his 
competency.

One of Battaglia's attorneys, Gregory Gardner, argued in court documents that 
Battaglia has long "exhibited bizarre behavior consistent with severe mental 
illness."

In a 2014 interview with The Dallas Morning News, Battaglia said he was "a 
little bit in the blank" about what happened to Faith and Liberty.

"I don't feel like I killed them," he said.

He called his daughters his "best little friends," just the "nicest little 
kids" imaginable, and said he doesn't grieve for them beacuse they remain with 
him.

"Why would I worry about where they are now?" he asked. "We're all here, we're 
all gone at the same time. I'm not worried about it."

(source: Dallas Morning News)

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

Executions under Greg Abbott, Jan. 21, 2015-present----19

Executions in Texas: Dec. 7, 1982----present-----537

Abbott#--------scheduled execution date-----name------------Tx. #

20---------August 24----------------Jeffrey Wood----------538

21---------August 31----------------Rolando Ruiz----------539

22---------September 14-------------Robert Jennings-------540

23---------October 5----------------Barney Fuller---------541

24---------October 19---------------Terry Edwards---------542

25---------November 2---------------Ramiro Gonzales-------543

26---------December 7---------------John Battaglia--------544

(sources: TDCJ & Rick Halperin)






NORTH CAROLINA:

North Carolina to Mark 10 Years Since Last Execution


The death chamber at Central Prison in Raleigh has sat empty since the morning 
of August 8, 2006. That was the last time an inmate was executed in North 
Carolina.

"In North Carolina in particular, there has been a law change last year to make 
it easier to implement the death penalty," said Steven Friedland with Elon 
School of Law. "It's no longer requiring doctors, it's other medical 
professionals. However, it does not mean that the state will overcome all of 
these issues that still are on the table."

Lawsuits prompted the moratorium, after concerns about the way executions are 
carried out in North Carolina and additional questions if physicians could give 
the lethal injections. There are also ongoing questions about racial bias in 
sentencing and potential botched executions.

"The death penalty is, of course, the ultimate protection," said Friedland. 
"The question is, is it fair? And is it cruel and unusual punishment under the 
8th Amendment to the Constitution?"

In the time since the moratorium has been in place, 4 people have been released 
from death row and exonerated. Some argue it may be time to put an end to the 
death penalty in North Carolina.

"I think we feel like the writing is on the wall," said Kristin Collins with 
the Center for Death Penalty Litigation. "Nationally the number of executions 
is going down and down and down each year. There have only been 3 states that 
have managed to carry out an execution in 2016."

Right now, 31 states have the death penalty, but several states have done away 
with their death penalty in the past few years.

"It's been 10 years since we have had an execution, and during that time the 
murder rate has actually declined," said Collins. "So the argument that we need 
to be executing people as a deterrent to crime and murder doesn't seem to be 
holding up."

For North Carolina, the death penalty will continue to remain in limbo as 
litigation continues.

(source: twcnews.com)






FLORIDA:

Deltona murder suspect Luis Toledo has court date amid death penalty questions


While the Florida Supreme Court has yet to rule on the state's death penalty, a 
hearing is set Friday for Luis Toledo, the Deltona man accused of killing his 
wife and her 2 children.

Toledo is charged with 2nd-degree murder in the killing of his wife, Yessenia 
Suarez, 28, and two counts of 1st-degree murder in the killing of her children, 
Thalia Otto, 9, and Michael Otto, 8. If convicted of killing the children, 
Toledo could face the death penalty. Their bodies have not been found. The 
hearing for Toledo is set before Circuit Judge Raul Zambrano at the Volusia 
County Courthouse in DeLand.

A trial date in the fall had been discussed as attorneys sought more time for 
issues over the death penalty to be settled but questions remain as the state 
Supreme Court has yet to issue its ruling.

Just days before Toledo, 34, was to go on trial in January, the U.S. Supreme 
Court struck down Florida's death sentencing process. The state legislature 
quickly revamped the death penalty law, but did not require a unanimous vote 
for death by the jury.

The Florida Supreme Court is now reviewing Florida's death penalty in light of 
the U.S. Supreme Court decision and challenges brought by attorneys in other 
Florida cases.

Once the state Supreme Court rules, a committee it appointed will get back to 
work on drawing up death penalty instructions for jurors. The Supreme Court 
committee tasked with writing the instructions is chaired by Judge F. Rand 
Wallis of the 5th District Court of Appeal in Daytona Beach.

Wallis said in a phone interview that the committee requested public comments 
and the general response from attorneys was that drafting the jury instructions 
before the state Supreme Court's decision would be premature. The committee 
decided to stop working on the instructions and wait for a decision.

"There are going to be a number of constitutional challenges to the statute and 
some have already been argued in front of the Supreme Court," Wallis said.

The U.S. Supreme Court struck down Florida's death sentencing process because 
it said it gave judges too much power and gave jurors too little. The 
Legislature changed Florida's law so that jurors must unanimously agree on at 
least 1 aggravator which would support the imposition of the death penalty.

Florida had required only a simple majority recommendation for death by the 
jury for a judge to be able to impose the death sentence. The Legislature made 
it tougher by requiring a 10-2 vote for death. But it still left Florida as 
only 1 of 3 states that did not require a unanimous jury vote for death before 
a judge could impose a death sentence.

That means some big questions remain, such as whether the U.S. Supreme Court's 
decision is retroactive and whether a 10-2 vote is enough.

"What findings are acceptable being 10 to 2 and what needs to be unanimous, so 
there's a lot of unknown's right now," Wallis said.

Wallis said once the state Supreme Court makes its rulings the jury 
instructions will be a high priority.

"Once the law is clear the jury instructions should follow because obviously 
there are cases that are pending in the trial court that want to know how to 
apply the statute and how to instruct the jury," Wallis said.

State Attorney R.J. Larizza declined to comment for this story through a 
spokesman saying it would be improper due to the pending death penalty cases.

(source: Daytona Beach News-Journal)






ALABAMA:

The Legacy of Lynching, on Death Row----In Alabama, Bryan Stevenson is saving 
inmates from execution and memorializing the darkest episodes of America's 
past.


In 1989, a 29-year-old African-American civil-rights lawyer named Bryan 
Stevenson moved to Montgomery, Alabama, and founded an organization that became 
the Equal Justice Initiative. It guarantees legal representation to every 
inmate on the state's death row. Over the decades, it has handled hundreds of 
capital cases, and has spared 125 offenders from execution. In recent years, 
Stevenson has also argued the appeals of prisoners around the country who were 
convicted of various crimes as juveniles and given long sentences or life in 
prison. One was Joe Sullivan, who was thirteen when he was charged in a sexual 
battery in Pensacola, Florida. Sullivan's original trial, in 1989, established 
that he and 2 older boys had burglarized the home of a woman named Lena Bruner 
on a morning when no one was there. That afternoon, Bruner was sexually 
assaulted in the home by someone whose face she never saw. The older boys 
implicated Sullivan, and he was convicted. They served brief sentences. 
Sullivan was sentenced to life in prison, with no possibility of parole.

In 2005, the Supreme Court decided Roper v. Simmons, a landmark ruling that 
held that states could no longer execute offenders who had committed their 
crimes before the age of 18. At the time, the Equal Justice Initiative had 
several clients in Alabama who had been charged when they were teen-agers and 
were now exempt from execution. To inform them of the ruling, Stevenson went to 
death row at the Holman Correctional Facility. He described his visit to me as 
we sat in his windowless office at E.J.I.'s headquarters, a converted warehouse 
in downtown Montgomery.

"When I went down and started talking to the guys and said, 'I've got great 
news, they're not going to execute,' it wasn't, like, joy, because they were 
all still quite young," Stevenson recalled. "It was just another kind of death 
sentence. 'Oh, 70 more years in prison.'"

But Stevenson saw an opportunity in the Roper ruling. "The Court was saying, in 
a categorical way, 'Look, children are fundamentally different from adults.'" 
If the Supreme Court ruled that children were too immature to be sentenced to 
death, Stevenson reasoned, then they shouldn't be sentenced to life, either. In 
order to push for an extension of Roper, he needed to find a test case. He 
began a nationwide search for inmates who had been convicted of crimes as 
juveniles and sentenced to life without parole.

Joe Sullivan is 40 now, and he lives in the Graceville Correctional Facility, a 
privately run prison in a remote part of northern Florida. His speech is 
halting and slurred, owing to a long-standing mental disability and to multiple 
sclerosis, which was diagnosed more than 20 years ago. "I didn't do nothing," 
Sullivan told me. "I was just with the wrong people at the wrong time. They 
said I'm the mastermind to everything. They said I did a sexual battery. I 
couldn't spell 'sex' in those days."

On November 9, 2009, Stevenson stood before the nine Justices of the Supreme 
Court and began, "Mr. Chief Justice, and may it please the Court: Joe Sullivan 
was 13 years of age when he was arrested with 2 older boys, one 15 and one 17, 
charged with sexual assault, ultimately convicted, and sentenced to life 
without parole. Joe is 1 of only 2 children this age who have ever been 
sentenced to life without parole for a non-homicide, and no child has received 
this sentence for non-homicide in the last 18 years." The Justices dismissed 
Sullivan's case on procedural grounds, but in a companion case, argued earlier 
that day, they had embraced Stevenson's argument: juveniles in non-homicides 
could not be sentenced to life.

After the decision, Stevenson took Sullivan's case back to the Florida trial 
court for resentencing. In light of Sullivan's record in prison, the Florida 
Department of Corrections informed him that he would be released on June 30, 
2014. Sullivan had had a rough time in custody. As a young teen in an adult 
state prison, he had been the victim of numerous sexual assaults. His current 
prison was not a violent place, Sullivan told me, but his M.S. had got much 
worse. "As he became someone who couldn't walk, and needed a wheelchair, the 
state was terrible in recognizing his needs," Stevenson said. "He was basically 
in a dorm where he was forced to walk places. This caused mini seizures, which 
will leave him more impaired." Sullivan had had only sporadic contact with his 
family over the years, and his only visitors came from E.J.I. In anticipation 
of his release, Stevenson rented a wheelchair-accessible apartment for Sullivan 
just outside Montgomery. "Mr. Bryan, he's like my father," Sullivan told me. 
"He gave me a lot of hope.

3 weeks before Sullivan's scheduled release, he received a notice from the 
Department of Corrections stating that his release date had been miscalculated. 
The correct date was December, 2019 - more than 5 years later. Stevenson has 
gone back to court to challenge the department???s determination, but Sullivan 
remains incarcerated. (State officials have declined to comment.) "It's been 
very frustrating," Stevenson said. 'We were just all set. Joe sent me a 
Father's Day card. It breaks your heart." Sullivan remains hopeful. "I say, 
'PUSH yourself every day,'" he told me. "PUSH - Pray Until Something Happens."

Was the Sullivan case a success or a failure? It was, in one sense, a great 
victory, because Sullivan, who was facing the prospect of dying in prison, will 
now be released at some point. But, almost 3 decades after he was incarcerated, 
he remains in prison, in a wheelchair. Of course, Stevenson has experienced 
grimmer disappointments in his career as a death-row lawyer. Stephen Bright, 
the president and senior counsel of the Southern Center for Human Rights, told 
me, "Many people do this work only for a period of time. It's a very brutal 
practice. Your clients get killed."

Stevenson and his colleagues have managed to slow, but not stop, the 
death-penalty machinery in Alabama - an enormous challenge in view of the 
state's conservative and racially polarized politics. Alabama has an elected 
judiciary, and candidates compete to be seen as the toughest on crime. It's 
also the only death-penalty state in which judges routinely overrule juries 
that vote against imposing death sentences. (In their campaigns, judges boast 
about the number of death sentences they've imposed.) Alabama's population is 
about 27 % African-American. The 19 appellate judges who review death 
sentences, including all the justices on the state Supreme Court, are white and 
Republican. 41 of the state's 42 elected district attorneys are white, and most 
are Republican. The state imposes death sentences at the highest rate in the 
nation, but the Equal Justice Initiative has limited the number of executions 
to 22 in the past decade, and there has been only 1 in the past 3 years. "It's 
just intensive case-by-case litigation," Stevenson told me. "We've gone more 
aggressively than anyone in the country on racial bias against 
African-Americans in jury selection. We have extensive litigation on the 
lethal-injection protocols. We identify inadmissible evidence. We push hard on 
every issue."

But Stevenson, who is 56, has come to believe that the defense of people 
enmeshed in the criminal-justice system, while indispensable, is an inadequate 
response to the deeper flaws in American society. He served on President 
Obama's Task Force on 21st Century Policing, and he has been an ally of the 
Black Lives Matter movement. The recent police shootings of African-American 
men in Baton Rouge, Louisiana, and outside St. Paul, Minnesota, have increased 
his pessimism. "These police shootings are symptoms of a larger disease," he 
told me. "Our society applies a presumption of dangerousness and guilt to young 
black men, and that's what leads to wrongful arrests and wrongful convictions 
and wrongful death sentences, not just wrongful shootings. There's no question 
that we have a long history of seeing people through this lens of racial 
difference. It's a direct line from slavery to the treatment of black suspects 
today, and we need to acknowledge the shamefulness of that history."

After a TED talk in 2012, called "We Need to Talk About Injustice," Stevenson 
is said to have received the longest standing ovation of any speaker, and the 
talk has been viewed more than 5 million times on the Internet; it raised a 
million dollars for his organization, and propelled a death-row lawyer into a 
public figure. His 2014 memoir, "Just Mercy: A Story of Justice and 
Redemption," spent years on best-seller lists. He is in constant demand as a 
lecturer across the country, and he's booked for commencement addresses years 
in advance.

As a longtime resident of Montgomery, he often thinks about Rosa Parks, whose 
refusal to sit at the back of a local bus in 1955 set off the modern era of the 
civil-rights movement. "We have reduced her activism to this celebratory tale - 
'It was all great,'" he told me. "Here's what most people don't know. After the 
boycott was declared officially over, and black people were sitting on the 
buses, there was unbelievable violence. There were a dozen people who were shot 
standing waiting on buses. We had white people going around Montgomery shooting 
black people who dared to get on the buses." For a time after the boycott, the 
city shut down bus service altogether. And then, to make way for the I-85 
highway, the local authorities, led by a state transportation commissioner who 
was also a member of the Ku Klux Klan, bulldozed the city's major middle-class 
black neighborhood.

Stevenson believes that too little attention has been paid to the hostility of 
whites to the civil-rights movement. "Where did all of those people go?" he 
said. "They had power in 1965. They voted against the Voting Rights Act, they 
voted against the Civil Rights Act, they were still here in 1970 and 1975 and 
1980. And there was never a time when people said, 'Oh, you know that thing 
about segregation forever? Oh, we were wrong. We made a mistake. That was not 
good.' They never said that. And it just shifted. So they stopped saying 
'Segregation forever,' and they said, 'Lock them up and throw away the key.'"

That dark view of American history may explain a passage in "Just Mercy," in 
which Stevenson describes a failed attempt to stop the 2009 execution of a 
49-year-old client named Jimmy Dill, who had severe mental impairments. He had 
wounded a man during a botched drug deal in 1988. Months later, as the victim 
was recovering, his wife, who had been caring for him, left him, and his health 
deteriorated. He eventually died, and Dill was resentenced for murder. Dill's 
mental impairments might well have entitled him to a reprieve from the death 
penalty, but he couldn't afford lawyers, and missed various procedural 
deadlines for appeals. When Stevenson took the case, a few weeks before the 
execution, it was too late. "After working for more than 25 years," Stevenson 
wrote, "I understood that I don't do what I do because it's required or 
necessary or important. I don't do it because I have no choice. I do what I do 
because I'm broken, too."

The family of Stevenson's mother, Alice Golden, like that of millions of other 
African-Americans, took part in the Great Migration from the rural South to the 
urban North in the early 20th century. They went from Virginia to Philadelphia, 
where Alice was born. She later reversed the customary trajectory when she 
married Howard Stevenson, in 1957, and went south with him, a little more than 
a hundred miles, to his home town of Milton, in rural Delaware. They had 3 
children: Howard, Bryan, and Christy.

"You have to understand that there are 2 Delawares," Howard Stevenson told me. 
"The north, around Wilmington, is basically part of the North, but we lived in 
the south, which was part of the South. It was very rural, very country. We 
lived basically in the woods, farm country. We lived next door to my uncle and 
aunt, and he used to slaughter hogs."

Their mother never forgot her roots in Philadelphia. "She didn't want us to 
grow up with a southern-Delaware frame of mind," Howard said. "She did all she 
could to make sure we never forgot the rest of the world. There were places 
around us with no running water, so Philly was the gateway to the rest of the 
world." Alice Stevenson placed a heavy emphasis on education; Christmas 
presents were microscopes, not footballs. She also had strong views on racial 
equality. "Some of the black folks in southern Delaware were much more 
deferential in the face of white people," Howard said. "Her style was 
different. She didn't believe in accepting any kind of racism." Once, when 
Bryan was in 1st grade, she wrote a letter to the town newspaper calling for 
the integration of the local public schools. Another time, a few years later, 
she protested when the town's public-health officers asked the black children 
to stand at the back of the line to receive their polio vaccines. "She made 
such an issue of it that for a moment we weren't sure if they'd even give us 
our shots," Bryan recalls.

In the 60s, when the Stevenson children were growing up, the neighborhoods, 
schools, and swimming pools of southern Delaware were all segregated, in fact 
if not by law. "There was never a time you could get the majority of people in 
Alabama or Mississippi, or even southern Delaware, to vote to end segregation," 
Bryan told me. "What changed things was the rule of law, the courts. Brown v. 
Board of Education was ushered in by a movement, but it was a legal decision. 
And so, for me, I went down the law path, because to be a politician trying to 
do anti-discrimination work meant you had to work in a handful of communities 
that were basically majority black." The jurisdiction of the courts applied 
everywhere.

Both of Bryan's parents had long commutes to jobs in the northern part of the 
state. Alice Stevenson had a civilian post at Dover Air Force Base and became 
what would later be called an equal-opportunity officer, working to insure that 
African-Americans received fair housing and education. Howard Stevenson was a 
lab technician at a General Foods plant in Dover. "We believed that our dad 
thought he could feed us completely based on what he snuck home from G.F.," 
Bryan told me. "I've avoided Jell-O since I was 10." The Stevenson children 
absorbed their mother's lessons. Howard Stevenson is a professor of urban 
education and Africana studies at the University of Pennsylvania; Christy, the 
youngest of the 3 children, teaches music at an elementary school in Delaware.

Bryan followed Howard to Eastern College, a small Baptist-affiliated school 
outside Philadelphia, where he majored in history and philosophy. Then he 
applied to Harvard Law School, which turned out to be a disappointment. "The 
courses seemed esoteric and disconnected from the race and poverty issues that 
had motivated me to consider the law in the first place," he wrote in his 
memoir. But as a 2nd-year student, in December, 1983, he took a monthlong 
internship at what was then called the Southern Prisoners Defense Committee, in 
Atlanta. Stephen Bright, the organization's leader, happened to be on the same 
flight to Atlanta as Stevenson. "By the time the plane landed, we were very 
close," Bright recalled. "Bryan had found his calling." He joined the group 
after graduating, in 1985, replicating his mother's migration south - which 
worried members of the family. "When I heard he was going on his own down 
there, I almost fainted," Fred Bailey, Stevenson's cousin and a retired 
Philadelphia police detective, said. "Bryan's a humble guy and a spiritual guy, 
and he sees the good in everyone. But he knew no one. And he had no family down 
there."

Bright's group did death-penalty and prisoners'-rights litigation in a hostile 
region and era. "We were the dance band on the Titanic, this very small group 
of 8 or 9 people trying to hold back this tide of executions in the old 
Confederacy," Bright said. The lawyers divided up the region, and Stevenson, 
more or less by happenstance, was assigned the cases in Alabama. He showed an 
aptitude for death-penalty litigation, which is both emotionally taxing and 
technically demanding. Capital cases have a complex choreography, involving 
multiple courts in state and federal jurisdictions, all with their own 
deadlines, rituals, and rules. Lawyers' mistakes can prove fatal.

The crime rate rose in the late 80s and early 90s, and the few death-penalty 
lawyers in the South became overwhelmed. In response, a group of lawyers and 
judges persuaded Congress to fund several state-based death-penalty defense 
organizations, called resource centers. In 1989, Stevenson, who was still in 
his late 20s, was appointed to run the Alabama operation. When Republicans took 
control of Congress after the 1994 midterm elections, one of their first acts 
was to eliminate funding for the resource centers. Stevenson turned the Alabama 
resource center into a nonprofit, the Equal Justice Initiative, which survived 
largely because he was awarded a MacArthur grant the following year, and he 
used the cash, about 300,000 dollars, to keep the organization afloat.

In time, Stevenson achieved a measure of economic stability for E.J.I., thanks 
mostly to grants from various foundations and a yearly fund-raiser in 
Manhattan. (With an annual operating budget of 6 million dollars, the 
organization now employs 17 full-time attorneys and 12 legal fellows, young 
lawyers who spend 2 years with the group.) "We were having success in 
overturning these convictions that are wrongful, but it became clear that race 
was the big burden," Stevenson told me. "By 2006 or 2007, I had begun to 
realize that we were going to have to get outside the courts and create a 
different narrative about race, race consciousness, racial bias, and 
discrimination in history before we can go back into the courts and expect the 
courts to do the things that they did 60 years ago, or to create the kind of 
environment where we could actually win."

Around this time, Stevenson began studying Alabama history. He didn't have to 
look far to find it. The E.J.I. warehouse is on Commerce Street, in Montgomery; 
the original commerce conducted there was in enslaved people. E.J.I.'s offices 
stand at nearly the midpoint between the dock on the Alabama River where the 
human cargo was unloaded and Court Square, which was one of the largest 
slave-auction sites in the South. Between 1848 and 1860, according to E.J.I.'s 
research, the Montgomery probate office granted at least 164 licenses to slave 
traders operating in the city. Thousands of people were auctioned a few hundred 
yards from where Stevenson practices law. Slaves awaiting auction were held in 
chains on the site where E.J.I.'s warehouse was later built.

Montgomery has dozens of cast-iron historical markers celebrating aspects of 
the Confederate past. Stevenson wanted to put a marker up in front of E.J.I.'s 
door, to point out the presence of the slave trade. "We went to the Historical 
Commission and said, 'How do you get a marker up?'" Stevenson recalled. He was 
told that if he provided accurate information the commission would erect a 
marker. E.J.I. put together a 60-page proposal for 3 markers commemorating the 
slave trade. Norwood Kerr, of the Alabama Department of Archives and History, 
e-mailed E.J.I. in response:

I have considered your request for the Alabama Historical Association to 
support the placement of 3 historical markers relating to the city's slave 
trade. While your scholarship appears accurate . . . I do not think it is in 
the best interests of the Association to sponsor the markers given the 
potential for controversy.

For several years, Stevenson has taught part time at the New York University 
School of Law, but he doesn't have his own apartment in the city. He lives on 
his N.Y.U. earnings and takes no salary from E.J.I. His personal style is 
nearly ascetic. He has never married. Keeping a promise that he made to his 
grandmother when he was a teen-ager, he has never let a drop of alcohol pass 
his lips. (Alcoholism plagued his family.) For years, he lived in a series of 
small apartments in Montgomery, until he decided to renew his commitment to the 
piano, which he once played semi-professionally in jazz groups. He decided to 
buy a piano, then a house, but rarely finds time to play. E.J.I. has no 
development staff, so Stevenson must raise the 6-million-dollar budget 
virtually alone. Between fund-raising and court appearances, he travels 
incessantly. Before one of my visits to Montgomery, he had been on planes for 
12 consecutive days; before another, 7 days.

He has cultivated a network of supporters around the country. In the E.J.I. 
break room, a state-of-the-art Starbucks machine dispenses free coffee. Since 
lawyers tend to work late, it gets a lot of use. "This machine has saved 
lives," Sia Sanneh, a senior attorney for E.J.I., told me. Howard Schultz, the 
chief executive of Starbucks, said, "Just by coincidence, 2 people sent me 
Bryan's book at the same time, and I read it in 2 or 3 sittings. I was so moved 
by his story and his selfless acts, and his humanitarianism, that I reached out 
and called him cold." They arranged to meet in New York, and then Schultz and 
his wife visited E.J.I. in Montgomery. "We all meet interesting people, and 
some of the people don't live up to their press," Schultz said. "Bryan is one 
of the rare individuals who exceed your expectations." Schultz arranged for 
"Just Mercy" to be displayed at Starbucks counters for a month; some 45,000 
copies were sold. Schultz also donated the coffee machine.

The world of public-service lawyering can be competitive and petty, even among 
ideological allies, but Stevenson's colleagues speak of him with something 
close to awe. "Bryan is absolutely in a class of his own," Chris Stone, the 
president of George Soros's Open Society Foundations, which has funded E.J.I., 
said. "He is a modest, straightforward, ordinary person, and yet he is magical. 
He is a gift to this country and to a cause that would not be the same without 
him." Darren Walker, the president of the Ford Foundation, said, "Bryan is one 
of the transformational leaders of my generation. He is one of the great 
prophetic voices of our era." Barry Scheck, the co-founder of the Innocence 
Project, said, "Bryan is without question the most inspirational lawyer of our 
times, not just because he's charismatic, and also a brilliant litigator, but 
because he connects emotionally with people like no one else." Anthony Romero, 
the executive director of the American Civil Liberties Union, said, "Most of us 
who do this kind of work are good. He's head and shoulders above us all. He's a 
genius. He's our Moses."

For all the ties he has forged around the nation, Stevenson is at this point an 
Alabaman. He knows where to find the pressure points in the local system, a 
knowledge that he put to good use after the Alabama Historical Association 
rejected his petition. He enlisted a small organization devoted to 
African-American history in Alabama as an alternative sponsor. In 2013, E.J.I., 
with its new ally, was allowed to put up 3 markers in downtown Montgomery.

During the controversy, Stevenson visited the University of Texas Law School, 
in Austin, for a conference on the relationship between the death penalty and 
lynching. Jordan Steiker, the professor who convened the meeting, told me, "In 
one sense, the death penalty is clearly a substitute for lynching. One of the 
main justifications for the use of the death penalty, especially in the South, 
was that it served to avoid lynching. The number of people executed rises 
tremendously at the end of the lynching era. And there's still incredible 
overlap between places that had lynching and places that continue to use the 
death penalty." Drawing on the work of such noted legal scholars as David 
Garland and Franklin Zimring, Steiker and his sister Carol, a professor at 
Harvard Law School, have written a forthcoming book, "Courting Death: The 
Supreme Court and Capital Punishment," which explores the links between 
lynching and state-sponsored executions. The Steikers write, "The practice of 
lynching constituted 'a form of unofficial capital punishment' that in its 
heyday was even more common than the official kind."

Lynchings, which took the form of hangings, shootings, beatings, and other acts 
of murder, were often public events, urged on by thousands, but by the 1930s 
the behavior of the crowds had begun to draw criticism in the North. "The only 
reason lynchings stopped in the American South was that the spectacle of the 
crowds cheering these murders was becoming problematic," Stevenson told me. 
"Local law enforcement was powerless to stop the mob, even if it wanted to. So 
people in the North started to say that the federal government needed to send 
in federal troops to protect black people from these acts of terror. No one in 
power in the South wanted that - so they moved the lynchings indoors, in the 
form of executions. They guaranteed swift, sure, certain death after the trial, 
rather than before the trial."

In 2007, Sherrilyn Ifill, the president and director-counsel of the N.A.A.C.P. 
Legal Defense Fund, published "On the Courthouse Lawn," which focussed on 2 
lynchings in Maryland. "What I learned is that an alarming number of lynchings 
took place not in secret, in the woods, but in public, on the beautiful lawns 
that are still there in all these communities," Ifill told me. "And there is 
nothing to commemorate these lynchings on those lawns, which are in the center 
of every town in the South." Lynchings were often covered in local newspapers, 
and sometimes even previewed in them, and these records were indispensable 
resources for the E.J.I. researchers.

The staffers at E.J.I., in addition to their legal duties, attempted to 
identify every lynching that took place in twelve states. They found records 
for about 4,000 lynchings, roughly 800 more than in previous counts. Stevenson 
became convinced that lynching had a historical and a contemporary relevance 
that needed to be more visible. At first, he imagined erecting more historical 
markers, but he soon expanded his plan. "One factor, to be honest, was that we 
started talking about a memorial for 9/11 victims within 5 years," he said. 
"It's not as if we haven't waited long enough to begin the process of a 
memorial for lynching. So that's when it became clear to me that, in addition 
to the markers, we needed to be talking about a space, a bigger, deeper, richer 
space. The markers will give you a little snapshot, but we need to tell the 
whole story."

On a steamy Saturday morning in May, about 100 volunteers assembled at the 
warehouse. Stevenson commands a stage without being especially commanding. He's 
of average height, with a shaved head - a concession to encroaching baldness - 
and he has the politician's gift for making his set pieces sound as if he were 
delivering them for the first time.

"I continue to believe that we're not free in this country, that we're not free 
at birth by a history of racial injustice," he told a diverse group of 
students, retirees, local activists, and supporters from around the country. 
"And there are spaces that are occupied by the legacy of that history that 
weigh on us. We talk a lot about freedom. We talk a lot about equality. We talk 
a lot about justice. But we're not free. There are shadows that follow us."

His cadence alternates between preachy intensity and lawyerly restraint. As 
Henry Louis Gates, Jr., the Harvard professor, put it, "There are 2 different 
streams of rhetoric in the African-American tradition, the sacred and the 
secular. Martin Luther King didn't sound like Thurgood Marshall. You can't 
argue in court like you're preaching in the Abyssinian Baptist Church. But 
scholars like Cornel West and Michael Eric Dyson in recent years have drawn 
from both traditions. Bryan does, too."

Stevenson told the group, "If you'd come to Montgomery a few years ago, you'd 
find a city with more than 50 markers or monuments to the Confederacy but 
hardly a word about slavery. And it's not like in the South we don't want to 
talk about the past. We love talking about the past." He noted that Alabama 
still observes Confederate Memorial Day (the last Monday in April) and 
Jefferson Davis's birthday (celebrated on the 1st Monday in June). In lieu of a 
separate Martin Luther King, Jr., Day, the state celebrates a joint Martin 
Luther King, Jr. - Robert E. Lee holiday. He also pointed out that the 2 
largest high schools in Montgomery are Robert E. Lee High and Jefferson Davis 
High. "Both overwhelmingly black."

The group had gathered to participate in Stevenson's project to commemorate the 
history of lynching. "Lynching was racial terrorism," he said. "Old people of 
color come up to me sometimes and say, 'Mr. Stevenson, I get so angry when I 
hear someone on TV talking about how they're dealing with domestic terrorism 
for the 1st time in our nation's history after 9/11. You need to make them stop 
saying that, because that's not true.' People who had endured lynchings and 
bombings and threats had a tremendous shape on our lives. We haven't done a 
very good job of understanding the legacy of lynching, but the black people 
that are in Cleveland and Chicago and Detroit and Los Angeles and Oakland and 
Boston and Minneapolis did not go to those communities merely as immigrants 
looking for new economic opportunities. They went to those communities as 
refugees and exiles from the American South."

After Stevenson's speech, the volunteers headed out in small teams to fill 
gallon-size glass jugs with soil from the sites of the 363 lynchings that 
E.J.I. had documented in Alabama. Many of the sites are approximate, and the 
soil project, which has been going on for about a year, is meant to be symbolic 
rather than scientific. Along the back wall of the room where Stevenson was 
speaking were about a hundred jugs already filled with soil. The colors of the 
soil samples varied, from nearly black, in the Black Belt communities across 
the middle of the state (which was named for its rich soil as well as for its 
ethnic composition), to the tan, sandy soil from the Gulf Coast, around Mobile. 
The names of the victims and the dates of their deaths, which ranged from 1877 
to 1950, are marked on the jugs.

The soil-collection project is part of a plan to erect the 1st national 
memorial to lynching victims, to be built on 6 acres of vacant land in downtown 
Montgomery. The project will cost twenty million dollars, and will include a 
museum at E.J.I. headquarters. It will transform the look, and perhaps the 
reputation, of Montgomery. A key part of the plan is a dare to the communities 
in which the lynchings took place. "We're going to name thousands of people who 
were the victims of lynchings," Stevenson told the group before they received 
their trowels and jars. "We're going to create a space where you can walk and 
spend time and go through that represents these lynchings. But, more than that, 
we're going to challenge every county in this country where a lynching took 
place to come and claim a memorial piece - and to erect it in their county."

Montgomery offers the project a rich civil-rights history and low-priced real 
estate. For the most part, the streets of downtown are quiet, and the sidewalks 
are empty. (There is no Starbucks.) Stevenson was able to assemble 6 1/2 acres 
of contiguous abandoned lots that were once the site of a failed public-housing 
complex, for about 600,000 dollars. It's a 15-minute walk from the warehouse, 
and up a small hill above the Greyhound bus station where the Freedom Riders 
were assaulted in 1961.

>From a distance, the lynching memorial, designed by Michael Murphy and a team 
from the MASS Design Group, of Boston, will look like a long, low colonnade. 
Once visitors enter the structure and follow the path downhill, they will see 
that the columns are hanging in the air, as if from trees. Each column is 6 
feet tall. The current plans call for the soil collected by volunteers to be 
used in coloring their exteriors. There will be 801 columns, 1 for each county 
and state in which a lynching took place. The names of the victims and the 
dates of the lynchings will be inscribed on the columns.

The memorial also has a more provocative component. Adjacent to the colonnade 
will be another eight hundred and one columns, exact duplicates. Each county in 
which a lynching took place will be invited to remove its memorial column and 
display it in its own community. The columns that remain in Montgomery will 
stand in mute rebuke to the places that refuse to acknowledge their history of 
lynching. "For us, it's the kind of activism that has clarity, purpose, and a 
goal," Stevenson told me. "Sometimes the goals aren't very clear or very well 
articulated, and you don't know whether you're getting closer or not. This will 
give us a way of measuring that. We'll know the places that are resisting, and 
it should build pressure on those communities, and the people in those 
communities, that are either not doing enough or need to do more."

The city of Montgomery has come to embrace Stevenson's plans, in the name of 
economic development. Mayor Todd Strange told me last spring, "We certainly 
appreciate the fact that it's going to lead to a big influx of people who want 
to come and gain some understanding. Those are good, clean tourist dollars." 
But he was also aware that, as he put it, "history is a battleground." 
Stevenson has been cautious about unveiling the project, which recently 
completed the zoning-approval process. Plans for the memorial had been 
mentioned only briefly in the Advertiser, the local daily. Strange told me, 
"Bryan has wanted it quiet. We still today have not made an announcement 
relative to the museum and the memorial park." For the moment, Stevenson has 
given the project the generic name of the Memorial for Peace and Justice, which 
provides no clue that it's all about lynching.

The reaction of Dick Brewbaker, a Republican state senator who represents a 
district in Montgomery, may presage a less warm welcome. Brewbaker, who is a 
prominent auto dealer, was not aware of the project when I asked him about it. 
"If he wants to do it, he needs to do it with private funds," Brewbaker said. 
(Stevenson has used no government funds.) Brewbaker went on, "Why is racially 
motivated violence worse than any other kind of violence? I don't give a damn 
what the motive of the offender was if an act of violence was committed. 
Interjecting even more race talk into Alabama's politics is not productive." 
Brewbaker noted that Montgomery has several museums about the civil-rights era, 
including one devoted to Rosa Parks, another to the Freedom Riders, and a 3rd 
to the movement as a whole (at the Southern Poverty Law Center). "I'd say the 
imbalance has been corrected pretty quickly, especially when you consider the 
Confederate symbols that have been removed." In 2015, Governor Robert Bentley 
ordered the removal of Confederate battle flags from the grounds of the 
Capitol. The flags are gone, but the plaques that described them remain.

Stevenson's 1st round of fund-raising for the memorial and the museum has 
garnered a 2-million-dollar commitment from the Ford Foundation and a million 
dollars from the charitable arm of Google; he has also earned more than a 
million from his book, the sale of movie rights, and his relentless 
speechmaking. That still leaves a considerable gap for a 29-million-dollar 
undertaking, which Stevenson hopes, optimistically, will open in 2017. For the 
moment, he bears the financial burden himself. Darren Walker, of the Ford 
Foundation, told me, "One of the things I've wanted to do is help Bryan situate 
his institution in a way that is durable and resilient and not so reliant on 
him as a charismatic leader." To that end, the Foundation has given E.J.I. a 
grant to hire a professional development staff.

I wondered how someone who was successfully juggling so many responsibilities 
could describe himself as "broken." Stevenson told me about the moment when he 
was talking to his client Jimmy Dill, just before Dill was executed, in 2009. 
"I've been in that setting before, but there was something different about 
this, because the man had this speech impediment," Stevenson said. "He couldn't 
get the words out, and he was going to use the last few minutes of his life - 
his last struggle was going to be devoted to saying to me, 'Thank you' and 'I 
love you for what you're trying to do.' I think that's what got to me in a way 
that few things had. And I, for the 1st time in my career, just thought, Is 
there an emotional cost, is there some toll connected to being proximate to all 
this suffering? I think that's when I realized that my motivation to help 
condemned people - it's not like I'm some whole person trying to help the 
broken people that I see along the road. I think I am broken by the injustice 
that I see."

After Stevenson spoke at the warehouse on that Saturday morning this spring, a 
50ish volunteer named Susan Enzweiler, who had recently retired from a job in 
historic preservation, received an assignment to visit the site of the lynching 
of a man named Ebb Calhoun. He died on April 29, 1907, in the village of 
Pittsview, on Alabama's border with Georgia. According to the materials 
provided by E.J.I., on the day before the attack Calhoun's son reportedly 
walked between a white man and his daughter on the street, brushing against the 
woman. The white man, a "prominent merchant," according to a contemporary 
report, shoved the son to the ground; the man was already "annoyed by the 
boisterousness of a large crowd of negroes" in the town that day. E.J.I. gave 
the approximate address for the lynching as 88 Le Conte Street, in what was 
described as the central business district of Pittsview.

When Enzweiler and I arrived in Pittsview, we found what appeared to be the 
shell of a business district. A convenience store and a 1-room post office 
survived, but the structure at what might have been 88 Le Conte was a crumbling 
brick building. Enzweiler studied the arrangement of the bricks. When bricks 
were more fragile and less standardized than they are today, builders would 
alternate "stretchers" (bricks laid lengthwise) with "headers" (bricks with the 
short side exposed). There were headers every 6 rows in the building, which 
Enzweiler took to mean that it was constructed around the beginning of the 
twentieth century. It had probably been standing at the time of the lynching.

As Enzweiler was looking around, a woman drove up to the post office, across 
the street. She was a letter carrier. She said that her route covered Pittsview 
and the neighboring town of Cottonton. "Pittsview is majority black and 
minority white," she said. "Cottonton is the opposite." She said that the 
residents on Le Conte where Enzweiler was standing were all white; the 
residents farther up the block, on the other side of a traffic light, were all 
black. The road of demarcation between the racial enclaves was called Prudence.

Stevenson had asked the volunteers to try to imagine the events that led to the 
lynchings. Ebb Calhoun had returned the next day to the site of his son's 
confrontation. Several white men, including the merchant who had had the 
altercation with the son, harassed Ebb and then accused him of firing a shot at 
a visitor from Columbus. A group of whites assembled, surrounded Calhoun, and 
then shot him dead. "This was the main drag. They executed him in a public 
place," Enzweiler said. "Mr. Calhoun must have known what was going to happen. 
He was trying to protect his son, taking the hit that was probably meant for 
him. Ebb was a hero." She took out her trowel, bent over to brush away pieces 
of crumbled brick, and began to fill her glass jar with soil.

(source: Jeffrey Toobin has been a staff writer at The New Yorker since 1993)

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

The slow decline of the death penalty


In the New Yorker, Jeffrey Toobin profiles the heroic Bryan Stevenson.

In 1989, a 29-year-old African-American civil-rights lawyer named Bryan 
Stevenson moved to Montgomery, Alabama, and founded an organization that became 
the Equal Justice Initiative. It guarantees legal representation to every 
inmate on the state's death row. Over the decades, it has handled hundreds of 
capital cases, and has spared 135 offenders from execution. In recent years, 
Stevenson has also argued the appeals of prisoners around the country who were 
convicted of various crimes as juveniles and given long sentences or life in 
prison . . .

Stevenson and his colleagues have managed to slow, but not stop, the 
death-penalty machinery in Alabama - an enormous challenge in view of the 
state's conservative and racially polarized politics. Alabama has an elected 
judiciary, and candidates compete to be seen as the toughest on crime. It's 
also the only death-penalty state in which judges routinely overrule juries 
that vote against imposing death sentences. (In their campaigns, judges boast 
about the number of death sentences they've imposed.) Alabama's population is 
about 27 % African-American. The 19 appellate judges who review death 
sentences, including all the justices on the state Supreme Court, are white and 
Republican. 41 of the state's 42 elected district attorneys are white, and most 
are Republican. The state imposes death sentences at the highest rate in the 
nation, but the Equal Justice Initiative has limited the number of executions 
to 22 in the past decade, and there has been only one in the past 3 years. 
"It's just intensive case-by-case litigation," Stevenson told me. "We've gone 
more aggressively than anyone in the country on racial bias against 
African-Americans in jury selection. We have extensive litigation on the 
lethal-injection protocols. We identify inadmissible evidence. We push hard on 
every issue."

In portions of the profile, Stevenson seems pessimistic, citing the recent 
spate of police shootings and white hostility to the civil rights movement. The 
profile also focuses more on Stevenson's admirable efforts to build a memorial 
to American lynchings than on his litigation.

But given Stevenson's lifelong work on the death penalty, it's worth taking the 
opportunity to point out just how rare executions are these days. At the 
national level, we're seeing a significant slowdown. Certainly, there are still 
hot spots where the death penalty is flourishing, and in those areas it still 
retains a familiar litany of problems: Those executed aren't the "worst of the 
worst." Rather, the death penalty is arbitrarily applied. It's racially 
discriminatory, with respect to the race of both the perpetrator and the 
victim. And the people executed aren't always the most culpable. Often, it's 
used as extra punishment for those who protest their innocence, or as leverage 
for a killer to give up accomplices. In the few states that still execute, the 
entire process is also getting more secretive and less accountable.

But there's good reason to think that the efforts in those states are capital 
punishment's death rattle. In a large and growing part of the country, the 
death penalty is becoming a relic of the past. Delaware's Supreme Court just 
ruled capital punishment unconstitutional. Nebraska's legislature repealed the 
death penalty, even overriding a veto in the process (though it may be 
resurrected with a ballot measure this fall). As NPR reported last December:

The death penalty is in decline no matter the measure, a new study released by 
the Death Penalty Information Center has found.

The report found that 28 people were executed this year, the lowest since 1991. 
The number of death sentences dropped by 33 %.

Only 6 states executed convicts during the year, and Texas, Missouri and 
Georgia accounted for 86 % of the executions.

There have been 15 executions so far this year, and just 2 since April. Only 5 
states have carried out executions. Georgia and Texas alone account for 12 of 
the 15 executions.

According to Gallup polling, while 3 in 5 Americans (61 %) still support the 
death penalty, that figure also marks a 40-year low. Pew polling also shows a 
40-year low, with support even lower, at 56 %. Among those ages 18 to 29, it's 
at 51 %.

Stevenson isn't the sort to take a bow, but the tireless work from groups such 
as EJI, the Innocence Project and the Death Penalty Information Center are a 
big reason for all of this - both in changing public opinion and in slowing 
down the machinery of capital punishment. You could argue that the progress has 
been too slow. But there's no question that there has been progress.

(source: Opinion; Radley Balko, Washington Post)

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

Pinkston attorney argues Ala. death penalty unconstitutional


A Calhoun County judge Monday heard arguments by an attorney that the rights of 
his client, charged with 2 counts of capital murder, were being infringed upon.

Attorney Will Broome Jr., representing Walter Craig Pinkston, argued that his 
client has the right to a jury throughout the entirety of his trial, which has 
not yet begun, and sentencing should only come from those twelve people. In 
Alabama, a judge has the final say on sentencing, which Broome said was 
unconstitutional.

"The state draws an arbitrary line that is convenient for them," Broome said 
after the hearing. "In other states, the jury is involved in every aspect of 
the trial. Here they leave after they give their verdict and sentencing 
recommendation."

Pinkston, 35, and Monica Marie Shively, 33, allegedly stabbed 89-year-old Alma 
Fleming to death in 2013 while they were attempting to commit robbery and 
burglary, according to court records. Calhoun County Coroner Pat Brown said in 
2013 that he believed Fleming was stabbed to death 2 days before her son, Wayne 
Fleming, found her at her home on South Stebbins Street.

If Pinkston is found guilty of capital murder he could be sentenced to either 
death or life without parole. The trial itself is not scheduled to begin until 
at least December.

Broome called upon recent Supreme Court decisions striking down death penalty 
statutes in Delaware and Florida this year for a similar issue. Broome argued 
that there are 3 phases that the jury should be a part of - the verdict, the 
sentencing recommendation and the actual sentencing.

"They want to cut a line at a convenient point to put the decision in your 
hands," Broome said referring to the prosecutors. "The state wants to cut off 
his right to a jury trial at that point. Ultimately when the jury renders its 
advisory, that is just a recommendation. We're the only state that takes that 
and puts it solely in your hands."

Broome continued to argue that allowing the jury to make a sentencing 
recommendation, and then allowing the judge to sentence the defendant based on 
a pre-sentencing report and the facts of the trial is double-jeopardy.

"He is being tried twice, essentially, and judged twice for the same offense," 
Broome said. "That's double jeopardy."

Calhoun County Chief Assistant District Attorney Lynn Hammond argued that a 
jury's recommendation is only that, a recommendation. Speaking in 
hypotheticals, Judge Brian Howell asked Hammond why even have the jury make a 
recommendation if he can legally override the suggestion.

"It is paramount that the judge has the opportunity to hear what the populace 
believes," Hammond said. "It's just as constitutional as the guilt or innocence 
phase. I do not agree with the defense in this, I agree with the court of 
criminal appeals."

Broome in part agreed with Hammond.

"It is the community who should decide," he said in response. "It should be the 
wishes of the community. You could overrule it, you have that capability and 
that's why the death penalty is unconstitutional. The jury should decide each 
and every part of the trial."

Howell said he'd file a written order on the subject by the end of the week.

(source: The Anniston Star)