June 21 US MILITARY: Rules for court-martial How military trials differ from civilian trials: Probable cause: In civilian court, a grand jury meets in private to hear evidence and determine if there is "probable cause" to indict a suspect a reasonable belief that the suspect committed a crime. The suspect is not present and is not represented by an attorney. There is no grand jury in the military, but suspects get an Article 32 hearing to determine if there is enough evidence to bring charges. Such proceedings are open and the suspect is represented by an attorney who is allowed to submit evidence and question witnesses. The hearing officer makes a recommendation to a senior commander, and that commander - known as the convening authority - decides whether to order a court-martial. Jury selection: The pool of potential jurors for a court-martial is typically smaller than a jury pool for a civilian trial. And in military cases, the prosecution and defense may remove fewer potential jurors without cause - so-called peremptory strikes. Officers typically serve as court-martial jurors, but enlisted personnel may serve if the defendant is enlisted and the juror isn't lower in rank than the accused. In civilian and military capital cases, 12 jurors are required; to get a conviction, the jury must unanimously decide that the defendant is guilty "beyond a reasonable doubt." Sentencing: In a civilian capital trial, if the defendant is convicted, the jury then hears more evidence and decides what sentence to recommend. The judge imposes the sentence. In a military capital case, the jury votes up to 4 times: 1st, whether the soldier is guilty or not guilty; if guilty, whether the jury believes that the soldier should be executed; whether mitigating circumstances outweigh the factors that made the case a capital crime; and whether jurors believe after weighing all factors that death is the appropriate sentence. A single juror who decides against a death sentence at any point effectively prohibits it. Appeal: In civilian cases, a defendant may pursue several avenues of appeal, starting with asking the trial judge to set aside the verdict or sentence. A capital conviction and death sentence gets an automatic review in many state court systems. In addition, people convicted in state courts may file a writ of habeas corpus to seek a review of their case in federal court. In military cases, convictions and sentences are reviewed by the convening authority. Death sentences are automatically appealed to the U.S. Supreme Court, and any execution must be approved by the president. (source: Courier-Journal) CALIFORNIA: Low IQs offer escape from death row When a San Mateo County jury decided 16 years ago that Jose Arnaldo Rodrigues deserved the death penalty, nobody at his trial had mentioned his low IQ, his poor grades in special-education classes or his inability to take care of ordinary tasks, such as keeping his hair washed and his teeth brushed or cooking a meal for himself. But now that he is on death row for robbing and killing a Menlo Park man, Rodrigues is pinning his hopes for avoiding execution on the argument that he is mentally retarded and thus exempt from the death penalty. Two years after the U.S. Supreme Court banned the execution of the mentally retarded, states across the nation are struggling with how to apply the ruling to condemned inmates such as Rodrigues. And no state is struggling more than California, where dozens of condemned killers have invoked the ruling in special legal claims asserting they were mentally retarded when they committed the crimes that put them on death row. A Mercury News review of the more than 30 California claims of mental retardation -- which could double as more inmates on the country's largest death row file appeals -- shows the courts may spend years figuring out where to draw a line between who can be executed and who cannot. Standards undefined >From old report cards to IQ tests, inmates are trying everything to establish the elusive legal definition of mental retardation, much to the dismay of prosecutors who say they are mostly malingerers just using every avenue to avoid the death penalty. The California Supreme Court recently identified a Los Angeles case in which it is expected to set the standards here for this murky area of capital punishment, and the U.S. Supreme Court may offer further clarification in a Texas case it is expected to rule upon by the end of this month. "I'd be surprised if the courts in California came down with any bright line rule," said San Francisco defense lawyer Michael Burt, a leading death penalty expert. The 46-year-old Rodrigues, for example, has offered enough proof to be one of only two death row inmates Attorney General Bill Lockyer has so far agreed should be considered as possibly mentally retarded. Among other things, his IQ ranged between 70 and 76 in childhood, hovering around the generally accepted measure of 70 as mentally retarded. Yet the Mercury News found the evidence in Rodrigues' case is not dramatically different from many others whose claims have been dismissed as frivolous by prosecutors. Decision left to states Prosecutors have a simple answer to how they have responded to the retardation claims. "It's completely fraudulent in a lot of the cases," said Assistant Attorney General Dane Gillette, who supervises death penalty appeals for the state. The U.S. Supreme Court laid the groundwork for this latest conflict over the fairness of the death penalty with its June 2002 decision. The ruling left it to the states to define mental retardation for the purpose of applying the death penalty, generating a flurry of legislation and court battles. Although defense attorneys are trying to expand its reach, the ruling did not cover inmates with mental illnesses that can sometimes flourish on death row. It focused on mental retardation, a condition traced to childhood. Some states are well ahead of California. Convicted killers in North Carolina, Nevada, Texas and elsewhere have been removed from death rows after state officials or courts agreed they qualified for mercy under the Supreme Court's decision. Like most death penalty states, California, after a fierce political fight, enacted legislation that went into effect in January to define how to apply the high court decision to both new trials and old cases. The legislation does not include the 70 IQ benchmark, though some other states have included the measure as one of the criteria to demonstrate mental retardation. Fixed guideline unlikely Instead, California's law relies on various factors set out by mental retardation experts, including poor adaptive functioning in society and mental impairment that shows up before the age of 18. But IQ still comes into play and is cited in many of the cases filed in the state Supreme Court. None of the California death row inmates seeking relief has an IQ as low as that of Darryl Atkins, the Virginia killer who won the case in the U.S. Supreme Court with an IQ of 59. But most have been tested in the 70s or lower at some point in their lives. For lawyers fighting over the issue, the question becomes: Is close good enough to be spared? "I know the general public would like to say, 'OK, there's a number,'" said Harry Simon, a Los Angeles federal public defender. "That's not even close to realistic." The test case chosen by the California Supreme Court involves death row inmate Andrew Hawthorne, sentenced for the 1982 shootings of two Los Angeles gang rivals. Court papers say Hawthorne was slow in school, functionally illiterate and had IQ tests ranging from the mid-70s to 86. But state lawyers say it would stretch the U.S. Supreme Court's reasoning to give a break to an inmate such as Hawthorne. They contend his case would provide "an escape hatch from execution to those who are merely F students in school." Prosecutors argue that Hawthorne is one of many inmates abusing the mental retardation issue. Among others, they cite the case of Kevin Cooper, a condemned San Bernardino County killer of four who was hours away from execution this year when a federal appeals court intervened for reasons unrelated to retardation. In separate proceedings last year, Cooper, with little evidence, unsuccessfully tried to argue he is mentally retarded. Prosecutors fear scams Another case is David "Mookie" Welch, a notorious Oakland mass murderer and gang leader. Welch, with one IQ test of 78, has raised the mental retardation issue in the state Supreme Court, infuriating veteran Alameda County prosecutor Jim Anderson. "What he's trying to do is just a scam," Anderson said. "He might have a few screws loose. But that doesn't mean he's retarded." But while cases like Welch's may draw skepticism, many others now on the Supreme Court's plate illustrate the subjective nature of the mental retardation claims. The Mercury News review of the petitions filed in the state Supreme Court shows other death row inmates with evidence whose claims are being contested by the state. They include: Kern County killer John Lee Holt, whose IQ tested in the low to mid-70s and who was treated at mental health centers as early as 9 years old. Clarence Ray Jr., another Kern County murderer who failed throughout school and had IQ tests ranging from 70 to 75. Jack Gus Farnum, a Los Angeles murderer who grew up in homeless shelters and had IQ tests as low as 67. David Fierro, a Riverside killer with IQ tests in the mid-60s to low 70s who was put in classes for the mentally retarded in school. In those cases, the state denies the defendants should even be evaluated further for mental retardation. No easy solutions Gillette, the state's top death penalty lawyer, insists there would be no reluctance to remove a mentally retarded inmate from death row, but there has to be compelling proof. These responses lead defense lawyers to say California is going to be more stubborn than other states that have volunteered to abandon the death penalty in some cases. The result, experts say, will be repeated conflicts over whether old school records, IQ scores, family memories and mental health evaluations can be parlayed into death row reprieves. The California Supreme Court, and most likely the federal courts later, will be forced to settle the life-or-death question in each case. (source: San Jose Mercury News) ALABAMA: Death Row inmate still waits for ruling on new evidence Evidence of Anthony Ray Hinton's possible innocence sits in a torn cardboard box at the Jefferson County Courthouse. The files, hefty and disheveled, lie on the floor of the Circuit Clerk's office. Workers try not to trip over them. Hinton, meanwhile, sits on Alabama's death row. For 2 years, he's been waiting for a judge to rule on new evidence that could free him, but he has heard nothing. Hinton's lawyers presented the testimony in June 2002. 3 national firearms experts challenged the accuracy of information leading to his conviction in a series of restaurant robbery-shootings in the 1980s. 2 restaurant managers died in the attacks, and a third was injured. The experts - including the former chief of the FBI's firearm and toolmark identification unit - said their tests on the gun that Alabama authorities used to tie Hinton to the crimes did not match bullets recovered at the crime scenes. "It was never even close," Lannie Emanuel, a Texas gun expert, said at the time. Hinton, 48, has been locked up 19 years. Takes too long: "People claim it takes too long for these cases to get to execution. Well, the same thing is true for exoneration," said Hinton's attorney, Bryan Stevenson. He is executive director of Equal Justice Initiative, a Montgomery nonprofit law firm that represents poor people on death row. In February, Equal Justice lawyers renewed their arguments in a 24-page motion that detailed 3 grounds under which Hinton should be freed. Still, they heard nothing. "Here's a case where we're begging the court, begging the state to act responsibly, and what we're getting is silence and willful avoidance. And that's very troubling. But it's reflective of the problems with the death penalty in Alabama," Stevenson said. The decision is pending before former Jefferson County Circuit Judge James Garrett. Though retired, Garrett retained some cases, including this one, court officials said. He does not keep an office at the courthouse, and efforts to reach him were unsuccessful. Argues against delays: The Alabama attorney general's office defended Hinton's conviction at the 2002 hearing. The AG's office, too, has argued against delays, saying they hinder its ability to prove Hinton's guilt and have him executed. Of the 29 people executed in Alabama since 1976, it has taken an average of 13 years four months between sentencing and execution, Attorney General Troy King said. The delay is most unfair to victims, he said. Hinton went to trial at a time when Alabama paid attorneys $1,000 to defend indigent people charged with capital murder. Sheldon Perhacs, his trial attorney, persuaded the judge to compensate him $1,600 because Hinton was accused of 2 counts. It didn't even cover his overhead, Perhacs said. Stevenson says inadequate resources are at the heart of the problems with older capital convictions, and one of the reasons defendants linger on Death Row for years. Hinton is one. There are dozens more. With no statewide indigent defense system, Alabama has one of the largest death rows in the country per capita. It is easier for prosecutors to get convictions because they are often unchallenged by experienced, adequately compensated defense attorneys, Stevenson said. "We have 193 people on death row in Alabama. Seventy percent of those prisoners were represented by attorneys who were subject to the $1,000 cap," Stevenson said. King said the system works, and that he did not know of any innocent person on Alabama's death row. The $1,000 defense cap has been lifted. Caps were in place: Caps were in place when Hinton, a paroled car thief working at a Bruno's warehouse, was sent to death row. His arrest came as restaurant employees were on edge in 1985 after two robbery-slayings. Manager John Davidson was killed that February at Mrs. Winner's Chicken and Biscuits on Southside. Thomas Vason, a manager of Captain D's on First Avenue, was killed under similar circumstances that July. There were no witnesses. But there was a third crime at a Quincy's. This time the manager survived. Sidney Smotherman identified Hinton as his attacker. Police searched Hinton's home and retrieved a rusty revolver from his mother's bedroom. State forensics investigators testified the bullets from the killings matched that gun. Hinton was sentenced to death based on that match. Working on a shoestring, Perhacs found one expert willing to challenge the state's evidence at trial. But the man was blind in one eye, and could not operate the microscope used for bullet comparison. A first set of appeals failed. In 1999, Stevenson and other Equal Justice lawyers began digging into Hinton's claims of innocence. Among their findings, as outlined in February's renewed request for Hinton's freedom: Similar fast-food robberies continued in the area after Hinton's arrest. Hinton had an alibi, his Bruno's time card. And prosecutors failed to disclose reports prepared by the Alabama Department of Forensic Sciences that their initial ballistics exam could not link Hinton's gun to the bullets that killed Davidson. Forensics experts later testified that there was a match, helping convict Hinton. State evidence has since been lost. The state scientists involved have retired. And, Stevenson said, "somebody's gotten away with 2 murders and an attempted murder." (source: Birmingham News) NORTH CAROLINA: Will Curtis Dixon face the death penalty? On Monday, accused murderer Curtis Dixon will find out if he will face the death penalty. The 21-year-old UNCW student will face another judge in a hearing that will decide whether or not he will face the death penalty for the murder of 18-year-old Jessica Faulkner. Faulkner was found dead in Dixon's campus dorm room just over a month ago. Dixon is charged with 1st degree murder, kidnapping, rape, and a sexual offense. (source: WECT News)
