June 20
TEXAS:
High Court Asked to Intervene in Case It Has Already Decided----Death row
inmate's lawyers say appellate judges didn't heed sufficiently an order to
review their client's claim of racial bias.
The U.S. Supreme Court is known for not liking to have to repeat itself.
In a case before it this week, though, attorneys for a Texas death row
inmate are joined by a coalition of courtroom veterans and citizen groups
in asking the court to say it again, louder.
Last year, the high court rebuked a trio of federal appeals court judges
for failing to adequately review the claims of a black inmate who argued
that prosecutors had unfairly excluded African Americans from the jury in
his 1986 murder trial. Prosecutors said they were simply trying to get
jurors sympathetic to the death penalty.
By a vote of 8 to 1, the high court sent the case back to the U.S. 5th
Circuit Court of Appeals with directions to reexamine whether jury
selection was tainted. "Happenstance" cannot explain why more than 90% of
the eligible black jurors were rejected by the prosecutors, Justice
Anthony M. Kennedy wrote for the majority.
The 5th Circuit looked at the case again, and in February, let stand the
conviction of 53-year-old Thomas Miller-El.
Those asking the Supreme Court to intervene a 2nd time argue that the
review was so cursory that the authority of the high court has been
defied. Rather than basing its review on the majority opinion in the case,
the 5th Circuit relied on the rationale offered by prosecutors and the
lone justice who dissented in the case, they say.
Miller-El's lawyers have been joined in the new appeal to the Supreme
Court by former FBI Director William S. Sessions and a coalition of former
federal judges and prosecutors, the NAACP Legal Defense Fund, Common Cause
and the League of Women Voters.
The high court has scheduled a conference on the case for Thursday.
If the 5th Circuit ruling stands, it "will undermine the public reputation
and integrity of the courts," according to a brief filed on behalf of the
dozen former federal judges and prosecutors.
"It seems to me that the 5th Circuit is thumbing its nose at the Supreme
Court," said John Gibbons, a member of the group and a former 3rd Circuit
Court of Appeals judge appointed by President Nixon. "You don't have the
rule of law if intermediate appellate courts think they can ignore
directions from the top."
The judges' brief asserts that the 5th Circuit "disregarded specific
conclusions drawn by [the Supreme] Court," among them that prosecutors
questioned prospective black more jurors more intensely about their
attitudes on the death penalty than prospective white jurors.
Rather than conducting its own analysis, the brief says, the 5th Circuit
"adopted, sometimes verbatim and always without attribution," prosecution
arguments and the dissenting opinion written by Justice Clarence Thomas.
The brief, submitted by Miller-El's lead lawyer, Jim Marcus of the Texas
Defender Service, and Washington attorney Seth P. Waxman, also contends
that the 5th Circuit flouted the Supreme Court's ruling.
The case stems from a 1985 robbery at a Holiday Inn in a Dallas suburb by
Miller-El, his wife Dorothy and Kenneth Flowers.
Hotel employee Doug Walker was shot and died from his wounds; fellow
worker Donald Hall survived and testified against Miller-El. The state
sought the death penalty only against Miller-El, having concluded that he
was the triggerman.
The jury that convicted Miller-El and voted for a death sentence consisted
of nine whites, one Latino, one Philippine American and one African
American.
Miller-El's lawyers argued at the time that prosecutors had systematically
excluded African Americans from the jury pool by making challenges based
on race and utilizing "jury shuffles," a process whereby attorneys are
able to rearrange the order in which prospective jurors come up for
questioning.
Those claims were rejected by the trial judge, Texas appeals courts, a
federal district judge and a 5th Circuit panel composed of Harold R.
DeMoss Jr., an appointee of President George H.W. Bush, and W. Eugene
Davis and Edith H. Jones, both appointed by President Reagan. Jones
frequently has been mentioned as a possible nominee for the Supreme Court
if a vacancy occurs during the presidency of George W. Bush.
Last year, the high court said the trio, like the other courts that had
reviewed the case, had turned a blind eye to evidence that prosecutors
violated the law.
During appeals, the Texas attorney general's office maintained that the
Dallas prosecutors had done nothing wrong.
Although the Supreme Court did not overturn the conviction, it did rule
that Miller-El had presented sufficient evidence of bias to entitle him to
a full hearing on the issue.
In his majority opinion, Kennedy noted that prospective black jurors were
subjected to more penetrating questions about their attitudes on the death
penalty.
Moreover, Kennedy emphasized that evidence showed that "the culture of the
district attorney's office [in Dallas] in the past was suffused with bias
against African Americans," and that the appeals court had failed to take
sufficient account of this.
"We question the dismissive and strained interpretation" that permitted
the 5th Circuit judges to explain away the evidence, Kennedy wrote.
In his dissent, Thomas said Miller-El had failed to present "anything
resembling clear and convincing evidence of purposeful discrimination."
A year later, after rehearing the case, the same three 5th Circuit judges
came to the same conclusion as they had the first time, affirming the
decision of a federal trial judge who had rebuffed Miller-El's claims that
his constitutional rights had been violated.
In opposing further Supreme Court review, Gena Bunn of the Texas attorney
general's office countered that the 5th Circuit "conscientiously followed
the dictate" of the Supreme Court, but after carefully reviewing the facts
ruled against Miller-El.
The brief filed by Miller-El's lawyers argues that the 5th Circuit's
failed to follow the Supreme Court's direction to consider fully evidence
of a pattern and practice of discrimination by Dallas prosecutors.
"Both the prosecutors involved in [Miller-El's] jury selection joined the
[Dallas] district attorney's office when that office formally trained its
prosecutors to exclude minorities from juries,'' Marcus and Waxman wrote,
citing the Supreme Court decision.
"As this court indicated, that evidence leads to the 'supposition that
race was a factor' in [Miller-El's] jury selection, and this supposition
'could be reinforced by the fact that the prosecutors marked the race of
each prospective juror on their juror cards,'" they wrote.
Those who joined in seeking new intervention by the Supreme Court include
Sessions, who headed the FBI from 1987 to 1993; Gibbons and Arlin Adams,
former federal appeals court judges in Philadelphia; Robert S. Litt, a
former federal prosecutor in New York; Eric H. Holder Jr., deputy attorney
general in the Clinton administration; and Beth A. Wilkinson, one of the
attorneys who prosecuted and obtained a death sentence against Oklahoma
City bomber Timothy J. McVeigh.
The judges' friend of the court brief was prepared by veteran Supreme
Court litigator Carter G. Phillips, along with attorney Elisabeth Semel,
who runs the death clinic at UC Berkeley's Boalt Hall Law School, and
Boalt student Jessica Goneau.
Representatives of Common Cause and the League of Women Voters, neither of
which has a formal position on the death penalty, acknowledged that it is
unusual for their groups to enter this arena, but they said this case
compelled them to sign on to a friend of the court brief.
"The League's basic mission is to encourage the active participation of
citizens in government, and racial discrimination that prevents citizens
from participating in that system offends our core values," said Elizabeth
Lawson, the League's senior lobbyist.
Edwin H. Davis, Common Cause vice president of policy and research, said
"a concern with how government works, the process of government," is "at
the core" of the organization's agenda and activity. "Jury selection is
certainly one of the key elements in our system of justice, and in this
case that element broke down," Davis said.
(source: Los Angeles Times)
USA:
Arbitrary application of justice makes death penalty untenable
Although I have never before felt any need to make a public declaration on
the subject, I have long regarded the death penalty as the proper
punishment for crimes of monstrous savagery.
I know there are strongly held opposing views, and respect others' right
to their positions. But especially specious, to my mind, is the argument
that the execution of criminals cheapens life and may even contribute to
the wider climate of violence.
The plain fact is that there are among us individuals of such bestial
nature that there is no choice but to remove them from society, either by
imprisoning them for life at considerable public expense, or by putting
them to death which is, whatever else, the ultimate safeguard against
recidivism.
Through all of my adult life that has been my position, and I make no
apology for it. If the penalty were applied uniformly, it would be my
position still.
As a practical matter, however, the outcome can turn on pure luck.
Celebrity. Wealth. The ability to bedazzle jurors and the public by one's
fame, and to employ the most celebrated and most expensive legal talent to
conduct the defense. In a real sense, all those are matters of luck.
The issue of penalty never came into play in the double-murder trial of
O.J. Simpson because of the bizarre outcome of acquittal. But certainly
luck was an important factor in the proceedings.
Always, too, there is the issue of the competence or incompetence of the
prosecution. And the prevailing social texture - liberal or conservative,
sophisticated or not - of the community or region from which the jury is
drawn.
And perhaps as important as anything, the privately held beliefs of those
12 men and women sitting in the jury box. And their truthfulness when
responding to the question of their willingness or their inability to
impose the death penalty.
Decisive, for me, has been the recent result of the sentencing phase in
the trial of Terry Nichols for his part in the 1995 bombing of the federal
building in Oklahoma City.
The conspiracy in which Nichols participated was the most horrendous
instance of home-grown terrorism in the modern history of this country.
Among the victims were nearly 20 children, including 8 infants a year old
or younger, and a woman pregnant with her 1st child.
After deliberating just 5 hours, the jury in McAlister, Okla., found
Nichols guilty on 161 counts of murder. In deciding his sentence, however,
several jurors - 4 by one account - would not agree that he should be
executed.
The trial took place in a part of the country where the fundamentalist
view of salvation and belief in the redeeming power of faith are prevalent
cultural motifs.
And the prosecutors and the defense attorneys alike were convinced that
testimony about Nichols' jailhouse conversion as a born-again Christian
was largely responsible for his being spared.
There is nothing either very impressive or exceptional about his newfound
religious fervor, authentic or not. It is not uncommon for murderers to
draw nearer their maker when faced with the prospect of the gas chamber,
the electric chair or lethal injection.
But that does not lessen the monstrosity of their crimes.
And if Terry Nichols is not to be put to death for his part in the killing
of so many innocents, then who under heaven does deserve the ultimate
penalty?
The problem for me is in accepting an outcome arrived at in a manner that
is so patently capricious - a result which allows the lucky to escape with
their lives, while the unlucky are put to death?
In our system of justice, which is better than most but is still
imperfect, that seems increasingly to happen. Not always, but often enough
to be troubling. And that has changed my mind.
(source: Column, C.W. Gusewelle)
INDIANA:
'I'm innocent of killing Mr. and Mrs. Rease'
Darnell Williams will be placed in metal shackles late Monday morning and
slowly walked away from death row long enough to make one final plea for
his life before the Indiana Parole Board.
The 37-year-old does not have high expectations.
"These people are going to do what they're going to do," he said last week
from the Indiana State Prison in Michigan City, where he was moved
recently to count down the last 30 days toward his July 9 execution by
lethal injection.
"Only my Creator can make them do anything other than that, if that's his
plan."
Williams is no stranger to the parole board. He appeared before the group
last summer, just days before his original Aug. 1 execution date and found
most members less than interested in the details of his case.
"It's a farce," he said of the group's role of making a recommendation on
clemency to the governor. "It's a window front. It gives you the
appearance that every measure is being taken to make sure that anything
that is legitimate and relevant to the case can be brought out."
Faith in God, not the system
The board has not given a favorable recommendation to a clemency request
in a capital case since the death penalty was reinstated in Indiana in
1977, said Earl Coleman, assistant to the parole board.
Williams said he plans to watch closely Monday to see if the board members
are more interested this time around.
"I just may have to say, 'Here we go again,'" he said.
Williams, who was 1 of 2 men convicted of murdering John and Henrietta
Rease on Aug. 12, 1986, in the couple's Gary home, has lost faith in a
system he believes has repeatedly denied him justice. Yet, he remains
spirited for a condemned man.
He said he is getting by these last few days through a reliance on his
faith -- a combination of Christianity and Islam. He also takes life one
day at a time, an approach that served him well while growing up as the
oldest of 4 children in a struggling family in Chicago and Gary.
"I know it's there," he said of his upcoming execution date. "But is the
future guaranteed to me tomorrow? I don't know. I don't know."
Williams said he is in regular contact with his mother and other immediate
family members, but he has lost touch with his extended family and hasn't
seen his 17-year-old son in 13 years. When asked if he would like to hear
from his son, he hesitated for a moment and then reacting with some pain,
said he would.
"That's if he wants to," he said. "What I want ain't necessarily what he
needs."
Williams has lost out on much of his adult life during his 17 years on
death row. As the long wait now comes to an end, he maintains his
innocence, while at the same time saying he does not remember a thing
about the shooting deaths 18 years ago.
He remembers going to the Reases' home with a group of others for a reason
unknown to him, but said a combination of marijuana and alcohol cloaked
the rest of the evening in a haze. The Reases operated a candy shop out of
their home and served as foster parents to a couple of the young people
linked with the murder, including Gregory Rouster.
Rouster, who also was convicted of the murder, was released from death row
last summer after it was determined he was legally retarded.
Williams said the next thing he remembers is waking up the following day
in custody at the Gary jail.
"I'm like, 'Oh my goodness, what had happened,'" he said.
It wasn't until after he was tried and sentenced to death that Williams
began piecing together the evening.
His biggest defense involves the blood evidence. He said if he were
anywhere near where the Reases were shot, he would have been covered in
blood like Rouster and the rooms in the house.
"Physics is on my side," he said. "It just can't happen that way."
Police initially found no blood on him or his clothing, he said. The claim
was supported this past week in a sworn statement by former Lake County
forensic technician Ronald Lach, who had inspected Williams just hours
after the shootings.
It was not until the trial that Williams learned two small spots of blood
on his shorts were being introduced as evidence of his guilt. By then, he
said momentum was against him.
"They vilified me," he said. "It seemed like every personal demon that was
raving up in that courtroom was projected on to me."
Williams believes the spots were planted by police, while others have
raised the possibility of contamination occurring during the 3 days he
wore the clothing in jail.
Recent DNA testing found that neither of the blood spots matched murder
victim Henrietta Rease and one spot failed to match victim John Rease and
the other was inconclusive.
The Indiana Supreme Court, which had repeatedly denied the DNA testing
until it was ordered last summer by the late Gov. Frank O'Bannon, recently
rejected an appeal, saying the blood and other evidence failed to
undermine Williams' role in the killings or his death sentence.
The court has said there is other overwhelming evidence of Williams'
guilt.
Last-ditch effort
Williams said he has no history of violence or earlier criminal
convictions.
What he wants is a new trial. It is not enough, he said, to simply have
his death sentence commuted by Gov. Joe Kernan.
"Commuted for what?" he asked. "Don't be using IQ. Don't be using
intoxication. Because I'm innocent of the crime. I'm innocent of killing
Mr. and Mrs. Rease."
If he were given the opportunity to talk to the surviving family members
of Henrietta and John Rease, Williams said he would ask for their help.
"Don't let their parents' death be used as a tool for further injustice,"
he said.
Stretching his imagination even further, Williams said if by some chance
he was retried and released from prison, he would continue the battle
against the injustices he believes he has suffered.
"I am going to be at the city hall, let them know I know what you about
and I'm going to let the people know what you about," he said, referring
to those he believes responsible for putting him where he is.
Various attorneys and others are racing against the clock on Williams'
behalf to derail his execution. Appeals are in the works at the federal
level, including a petition before the U.S. Supreme Court, and clemency
was requested last week from Kernan.
The parole board will take public input on the case June 28 in
Indianapolis and will reconvene the following day to make a recommendation
on the clemency request. Kernan is not bound by the group's
recommendation.
If these efforts fail, Williams said he is not scared by the thought of
his upcoming execution.
"Scared for what?" he asked.
He said he is at peace and faces his death without any judgment of those
responsible for his situation.
"If I tell you the truth about something, that's on you now," he said.
(source: The Times)
