[Deathpenalty] death penalty news----TEXAS, N.H., ARK., N.MEX., CALIF.

[Rick Halperin]

Oct. 3



TEXAS:

Duane Buck deserves a color-blind sentencing trial


Gerald Kogan, a former assistant state attorney and chief prosecutor in the 
Dade County, Fla., State Attorney's Office, served as a justice on the Florida 
Supreme Court from 1987 to 1998, including 2 years as chief justice. Tim Cole 
served as an elected Texas district attorney from 1993 to 2006. The authors are 
co-signers of an amicus brief filed in the Buck case.

As former prosecutors, we recognize that the state's decision to seek a death 
sentence involves the utmost ethical responsibility. Capital cases, more than 
any other, require meticulous adherence to prosecutorial ethics. Thus, the 
prosecutors' ethical code, adopted by the National District Attorneys 
Association, as well as the U.S. Constitution, make clear that no death 
sentence can be based on a factor as arbitrary as race.

But the pernicious use of race, among other troubling issues, including 
astonishingly ineffective defense lawyering, is at the center of the Duane Buck 
death-penalty case, which will be argued to the Supreme Court on Wednesday.

Following Buck's 1997 conviction in the murder of his former girlfriend and her 
friend, Buck's court-appointed trial counsel relied on an "expert" who 
testified during the trial's sentencing phase that, because he is black, Buck 
was more likely to commit violent crimes in the future. Setting aside for the 
moment that this claim is patently false, it was particularly significant 
because in Texas, jurors must find that a defendant will pose a "future danger" 
before they can impose a death sentence. The prosecutor, on cross-examination, 
asked the expert to repeat his opinion that Buck's race increased the 
probability that he would be a danger in the future and, at closing, encouraged 
the jury to rely on the expert's testimony in support of a finding of future 
dangerousness. After deliberating for 2 days, and requesting the expert 
reports, jurors found Buck to be a future danger and he was sentenced to death.

This is an extraordinary case that demands extraordinary relief. One reason is 
the uniquely injurious nature of racial discrimination itself. The testimony 
connecting Buck's race to his likelihood of dangerousness not only deprived him 
of his fundamental right to a fair trial, it also compromised the integrity of 
the criminal-justice system overall. An assessment of future dangerousness is 
properly based on an individual's personal history, not on innate, immutable 
traits.

It is also extraordinary because Texas recognized the unconstitutional nature 
of the testimony and promised Buck a new sentencing hearing, but 
incomprehensibly refused to honor that promise.

In 2000, Texas's then-attorney general, John Cornyn, became aware of this 
particular expert's problematic testimony about race and future dangerousness 
when another capital defendant challenged it in a U.S. Supreme Court appeal. On 
behalf of the state of Texas, Cornyn admitted that the introduction of such 
testimony "violated [the defendant's] constitutional right to be sentenced 
without regard to the color of his skin." He agreed to have the defendant's 
sentence vacated so that a new sentencing hearing untainted by such racial 
discrimination could be held.

Following that concession, Cornyn conducted a thorough investigation of Texas's 
death row to determine if any other cases were similarly tainted by this 
expert's unconstitutional race-equals-dangerousness testimony. His office 
concluded that the sentences of 6 death-row inmates, including Buck, were 
poisoned by such evidence. Texas promised new sentencing hearings for all 6 
prisoners but, without explanation, reversed course in only Buck's case.

The failure of the prosecutors involved in this case to honor their ethical and 
professional obligations has been compounded by the failure of the judiciary to 
recognize the urgent need for relief. Incredibly, the U.S. Court of Appeals for 
the Fifth Circuit denied Buck's request for permission to appeal the denial of 
relief on his resentencing request, declaring that Buck had "not made ... even 
a minimal showing that his case is exceptional" as required under the relevant 
federal rule.

We would be hard-pressed to think of a more extraordinary case. Prosecutors 
play a critical role in maintaining public confidence in the criminal-justice 
system. They are entrusted with the responsibility to seek justice and enforce 
state and federal law. In Buck's case, that trust was violated by the trial 
prosecutor's exploitation of the defense counsel's constitutionally deficient 
performance in introducing the race-as-dangerousness testimony and by the Texas 
attorney general's failure to keep his promise to ensure that Buck received a 
new, fair sentencing hearing.

Our Constitution, and the integrity of our criminal-justice system, require 
more from our prosecutors. We call on the Supreme Court to grant relief to 
Duane Buck so that he may obtain the new, colorblind sentencing trial that 
Texas promised him.

(source: Opinion, Washington Post)

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

A US supreme court case that could set the tone for the post-Scalia era ---- 
The impact of the 8-member court on the law may be minimal at first, but the 
'4-4 split' may change the way the justices communicate their decisions

When the justices of the US supreme court take their seats on Tuesday morning 
for the first set of oral arguments of their 2016-2017 session, many 
court-watchers will have their eyes more on the makeup of the court than the 
cases themselves. Since Justice Antonin Scalia's death in February, the 9-seat 
court has had only 8 members, while Senate Republicans have refused to consider 
Barack Obama's pick, Judge Merrick Garland.

Having only 8 members of the court means that, theoretically, any and every 
case could result in a tie between the court's 4 remaining conservative members 
and the liberals, even in those cases expected to resolve disparities in lower 
courts' rulings.

Renee Cramer, a professor of law, politics and society at Drake University, 
cautioned that the effects of the 8-member court on the law - at least at the 
beginning of this term - are likely to be minimal. "The political implications 
are probably greater than the judicial implications," she said.

"The 4-4 split wasn't changing decisions incredibly" in the wake of Scalia's 
death, she explained. "But it was maybe changing the way that those decisions 
were communicated."

"They appear to be appealing to a desire not to be seen as overreaching," she 
added, issuing rulings "more narrowly tailored to the specific instances". Of 
the 19 cases currently scheduled for oral arguments, here is 1 that could have 
the broadest implications.

Buck v Davis

Duane Buck shot and killed his ex-girlfriend and her friend in Texas in 1995 
and was convicted; the case before the court challenges his death penalty 
sentence. During the penalty phase of his trial, Buck's defense attorney - 
called one of the worst defense lawyers in capital cases in the country - 
brought to the stand an expert witness intended to demonstrate to the jury that 
Buck was not a continuing threat to the community, a key standard for imposing 
the death penalty. Instead, the defense introduced the testimony of Dr Walter 
Quijano, who wrote that, statistically speaking, Buck was more likely to commit 
crimes in the future because he is black.

He was sentenced to death, and appealed on the grounds that his counsel had 
been ineffective, though not because his lawyer introduced Quijano's testimony.

The state of Texas later admitted before the supreme court that Quijano's 
testimony was prejudicial. But the state objected to the challenge of Buck's 
death sentence because his own lawyer introduced the evidence, and because 
prosecutors do not believe that the circumstances of Buck's sentencing rise to 
the level of extraordinary circumstances.

The court may decide the case on either question.

(source: The Guardian)






NEW HAMPSHIRE:

NH Right To (some) Life


To the Editor:

According to the mission statement of New Hampshire Right To Life, "The Mission 
of New Hampshire Right to Life is to foster respect for all human life from the 
moment of fertilization to natural death."

Yet NHRTL president Jane Cormier was told she could not represent NHRTL in a 
panel discussion on the death penalty due to some board members being for the 
death penalty.

So they are telling us that if you are for the death penalty then you respect 
all human life? I don't think so.

Jane Cormier told me, "Our board discussed this issue at the Friday board of 
directors' meeting and it was decided that NHRTL would stand by our mission and 
bylaws statement which center on fighting abortion and euthanasia."

Nowhere in their mission statement does it say they respect all human life only 
in the case of abortion and euthanasia. I have asked for the resignation of 
those on the NHRTL board that are for the death penalty.

JIM PREISENDORFER

Concord

(source: Letter to the Editor, Union Leader)






ARKANSAS:

Death Penalty Opponent to Speak, Answer Questions at U of A


Furonda Brasfield, director of the Arkansas Coalition to Abolish the Death 
Penalty, will give a presentation and answer questions about her organization's 
mission and initiatives at 6:30 p.m. Thursday, Oct. 6, in Kimpel Hall room 306. 
The event is free and the public is welcome.

Brasfield's presentation is part of the University of Arkansas' One Book, One 
Community Project and is offered as a lead-up to the public lecture by Bryan 
Stevenson, author of Just Mercy: A Story of Justice and Redemption at 6:30 p.m. 
Nov. 3 in the Reynolds Auditorium.

The Arkansas Coalition to Abolish the Death Penalty was founded in 1977 and is 
a non-partisan, non-sectarian coalition of religious and civic organizations 
and concerned citizens working together to end capital punishment in Arkansas. 
Its ultimate goal is for the General Assembly of Arkansas to pass and the 
governor sign into law a bill striking the death penalty from the criminal 
sentencing statutes of the state.

About the University of Arkansas: The University of Arkansas provides an 
internationally competitive education for undergraduate and graduate students 
in more than 200 academic programs. The university contributes new knowledge, 
economic development, basic and applied research, and creative activity while 
also providing service to academic and professional disciplines. The Carnegie 
Foundation classifies the University of Arkansas among only 2 % of universities 
in America that have the highest level of research activity. U.S. News & World 
Report ranks the University of Arkansas among its top American public research 
universities. Founded in 1871, the University of Arkansas comprises 10 colleges 
and schools and maintains a low student-to-faculty ratio that promotes personal 
attention and close mentoring.

(source: uark.edu)






NEW MEXICO:

Journal Poll: 65% support bringing back death penalty in NM


As debate rages at the Roundhouse and around New Mexico after recent killings 
rocked the state, a new Journal Poll has found that nearly 2/3 of likely state 
voters support reinstating the death penalty for certain violent crimes.

65 % of likely voters said they would favor reinstating the death penalty for 
individuals convicted of killing children, police officers or corrections 
officers, while 28 % of voters said they would oppose doing so. The rest of 
those surveyed either had mixed feelings or wouldn't say.

Debate over the controversial punishment has reignited in recent weeks after 
the death of 10-year-old Victoria Martens of Albuquerque, who police say was 
drugged, raped and killed, and the killings of police officers in Hatch and 
Alamogordo. Police officers were also shot and killed last year in Rio Rancho 
and Albuquerque.

"These are fresh in the minds of New Mexico voters, so I'm not surprised to see 
support as high as it is," said Journal pollster Brian Sanderoff, president of 
Research & Polling Inc.

Gov. Susana Martinez announced last month that she would add reinstatement of 
the death penalty to the agenda of an ongoing special legislative session, 
along with 2 other crime-related proposals.

The 2-term Republican governor, a former prosecutor, said cop killers and child 
murderers deserve the ultimate punishment.

"It's time we say enough is enough," Martinez said.

However, opponents of the death penalty have criticized the governor for adding 
the issue to the special session mix, with Archbishop of Santa Fe John C. 
Wester blasting the proposal as a politically motivated "red herring" aimed at 
distracting lawmakers from a precipitous state revenue downturn.

The Journal Poll asked voters whether they would support or oppose reinstating 
the death penalty for individuals convicted of killing children, police 
officers or correctional officers, essentially the proposal being pushed by 
Gov. Martinez.

Registered Republicans were more likely than Democrats to support 
reinstatement, but a majority of Democratic voters surveyed - 54 % - also said 
they favored the proposal, the Journal Poll found.

Meanwhile, about 2/3 of independent voters surveyed - 68 % - said they would 
support bringing back the death penalty, while 29 % of voters in the growing 
bloc of independent voters said they oppose the proposal.

Hispanic voters were almost as likely as Anglo voters to support reinstatement 
of the death penalty, while voters with graduate degrees were far less likely 
to favor the proposed reinstatement of capital punishment than were those with 
college degrees, high school diplomas or less formal education.

Repealed in 2009

New Mexico had the death penalty on its books for years, but then-Gov. Bill 
Richardson signed legislation in 2009 repealing capital punishment and 
replacing it with a maximum sentence of life in prison without the possibility 
of parole.

Opponents of the death penalty had argued that capital punishment was not 
cost-effective, and Richardson, a Democrat, said at the time he signed the 
repeal bill into law that he did not have enough confidence in the criminal 
justice system to be the final arbiter of who lived and who died.

However, the repeal applied only to crimes committed after its effective date, 
and 2 inmates - Robert Fry and Timothy Allen - remain on death row in New 
Mexico.

Before abolishing the death penalty, New Mexico had executed just 1 inmate 
since 1960. That happened in 2001, when Terry Clark received a lethal injection 
after having been convicted of raping and killing Dena Lynn Gore, a 9-year-old 
Artesia girl.

Nationally, there's been a movement away from the death penalty. 20 states, 
including New Mexico, currently do not have death penalty laws on their books, 
and 4 states - Illinois, Connecticut, Maryland and Nebraska - have abolished 
capital punishment in the past 5 years, according to the National Conference of 
State Legislatures.

At the ongoing special session at the state Capitol, the proposal to reinstate 
New Mexico's death penalty passed its first House committee on a party-line 
vote Friday - with Republicans in favor and Democrats opposed - and could be 
debated by the full House today.

(source: Albuquerque Journal)






CALIFORNIA:

Proposition 62 Backers: 'It's Time to End California's Death Penalty'


In 2005, Dionne Wilson was desperate for revenge. Her husband, Dan Niemi, a San 
Leandro cop, was shot seven times and killed in an ambush while answering a 
public disturbance call. The killer was on probation and desperate to avoid 
going back to prison for having guns and drugs in his possession.

The Alameda County district attorney asked the jury to return a death sentence 
for the killer, Irving Ramirez. And Wilson wanted it, too.

"I begged for it," Wilson remembers. "I told them they had to. They have to 
give me this justice for my children and for my family."

Wilson got her wish. Ramirez was sentenced to death. But it didn't have the 
effect she hoped for.

"That verdict was supposed to be the thing that made me feel better," Wilson 
says. "And I felt nothing. All I felt was betrayed, disappointed, let down. I 
was still full of hatred and anger, and it had nowhere to go. It made it worse. 
It actually made it worse for me."

Wilson no longer supports capital punishment. In fact, she's become an advocate 
for criminal justice reform and supports Proposition 62 to end the death 
penalty and make life in prison without the possibility of parole the toughest 
penalty for 1st-degree murder in California.

Dionne Wilson's husband Dan Niemi was shot and killed while on duty as a San 
Leandro police officer. His killer received the death penalty, but she's now 
opposed to capital punishment.

"The whole system is so broken that there really is no repairing it," Wilson 
says. "I think what makes the most sense is just to end it. Let's be smart on 
crime instead of this tough on crime that has utterly failed."

Wilson is not your typical crime victim advocate. Most not only want to keep 
the death penalty, they want to speed up executions with Proposition 66. Most 
of California???s 58 district attorneys, including Anne Marie Schubert from 
Sacramento, oppose Proposition 62. Schubert says the death penalty should be 
reserved for what many call "the worst of the worst," whose heinous crimes 
affected hundreds of victims.

"We're talking about well over 200 children, 44 or 45 police officers killed in 
the line of duty," says Schubert. "We're talking about women who have been 
kidnapped, raped and tortured. We're talking about serial killers, mass 
killers."

Schubert says it would be an injustice to their victims if those death 
sentences are overturned.

If there's one thing supporters and opponents of capital punishment agree on, 
it's that California's death penalty as it is today doesn't work. Since 
California reinstated capital punishment in 1978, about 875 death sentences 
have been handed down.

Of the 119 deaths among condemned inmates in California, only 13 were the 
result of a state execution. The vast majority died of natural causes or 
suicide.

The last execution occurred in 2006. That same year federal Judge Jeremy Fogel 
put a hold on further executions over concerns about the state's 3-drug 
protocol for putting inmates to death. More than a decade later, California has 
still not given final approval to a new procedure. Even before that latest 
legal delay, the average time between conviction and an execution was about 20 
years.

The number of death sentences handed down each year in California has been 
declining since peaking at 38 in 1999. Last year 14 death sentences were 
returned, and so far this year there have been only 6, including one last month 
in Alameda County.

Geography matters a lot, too. Los Angeles, California's largest county, also 
has given out the most death sentences - 267 since 1978. But a few smaller 
counties, including Riverside, Kern and San Bernardino, are responsible for a 
disproportionate number of them.

Death penalty opponents say capital punishment can't be fixed and should be 
scrapped. They argue it's too expensive, doesn't deter crime or provide any 
relief to crime victims' families. And, they say there's always the chance 
legal errors could lead to the execution of an innocent person.

Proposition 62 would replace all existing death sentences with life in prison 
without the possibility of parole. The inmates would also have to work while 
behind bars, with some of their wages going to pay restitution to their 
victims.

The last time a measure to ban capital punishment was on the ballot was 2012, 
when voters rejected Proposition 34 by 53 to 47 %. This time around a Field 
Poll in mid-September showed Proposition 62 leading but still short of the 50 % 
needed to pass.

(source: Scott Shafer, KQED news)