June 27 PENNSYLVANIA: A change of heart over dying----Death row inmate's reversal poses problem for courts >From the start, Hubert Michael was unequivocal about wanting to die. Charged with the murder of a 16-year-old girl, he confessed, pleaded guilty and demanded the death penalty. After a judge granted his wish, he began a long fight to join the growing ranks of death row "volunteers" -- murderers who give up their appeals and seek to hurry their executions. But with just weeks to go until his scheduled execution, Michael stunned prosecutors in May by telling a judge that he wants to live. The announcement has thrown the case into nearly uncharted legal territory. Lawyers for the state appeared before a federal appeals court last week to argue that it is too late for Michael to change his mind. Michael's court-appointed lawyer, Joseph Cosgrove, asked for the case to be reopened. The case appeared to frustrate a 3-judge panel of the 3rd U.S. Circuit Court of Appeals. "We don't do do-overs," said Judge Michael Chertoff, a former federal prosecutor appointed to the court last year by President Bush. Judge Morton Greenberg, a Ronald Reagan appointee, was more blunt. "Did he plan this all along, and then just jerk this around for years?" he demanded of Cosgrove, who replied that he was certain that his client had acted in good faith. Greenberg wasn't satisfied. "You know what they say. 'Be careful what you ask for, you just might get it.' Well, he got it. He got what he asked for," he said. Michael was not alone in his wish to be executed. As of late spring, 103 of the 915 people who have been executed in the United States since 1976 went to their deaths voluntarily, according to the Death Penalty Information Center. But cases in which death row inmates ask to be executed, then change their minds, are rarer. David Paul Hammer, a federal prisoner sentenced to die for killing a cellmate in Pennsylvania, has vacillated for years over whether he wishes to continue his appeals. His execution was scheduled earlier this month, but was postponed after the 3rd Circuit ruled the courts had not properly explored whether he had "knowingly, intelligently and voluntarily" waived his appeals. Michael's case poses a different set of questions. Unlike Hammer, the court has already ruled Michael received a full and proper hearing to determine whether he was knowingly giving up his appeal. Cosgrove argued the case could be revived on a number of technicalities, including a ruling that had briefly left Michael without an attorney. He also said a psychologist who told the court Michael was sane has since changed his mind. Cosgrove argued Michael's appeals shouldn't be declared dead on procedural grounds, as they might be in other cases, because, as the Supreme Court has recognized, "death is different" as a punishment. "What about the death of a little girl?" Greenberg interrupted, referring to Michael's victim, Trista Eng, who was kidnapped and shot in York County in 1993. Greenberg said there was "100 percent certainty" Michael had committed the murder, and asked Cosgrove to consider whether it was fair to Eng's relatives to allow her killer to tie the legal system in knots. The panel did not indicate when it would rule in Michael's case. (source: Associated Press) ARIZONA: DNA deadlock? Sen. Jon Kyl, R-Ariz., is helping to block a bill to expand access to DNA testing for death-row inmates and others convicted of serious crimes - biological tests that can both exonerate the innocent and confirm the guilty. A measure in the House (House Resolution 3214) has passed overwhelmingly. But supporters say the Senate version (Senate Bill 1700) of the "Advancing Justice Through DNA Technology Act" is under threat of being gutted or derailed by Senate Judiciary Committee members Kyl and Sen. Jeff Sessions, R-Ala., and other conservatives. Their opposition comes when a U.S. Justice Department official in April issued a letter criticizing the section of the bill called the "Innocence Protection Act." That section allows a judge to insist on DNA testing in only the most serious federal offenses, including murder, and in state offenses where a defendant has shown he cannot get testing under state law. The aim, supporters say, is to limit frivolous overuse. But U.S. Assistant Attorney General William Moschella wrote in his letter that provisions geared toward post-conviction testing could encourage "abusive litigation" by death-row inmates and capital defendants. The bill also would authorize $5 million to help pay for the additional tests and provide more money to help reduce the backlog of DNA samples awaiting testing in state labs. There's a provision that would make $100 million in federal grants contingent on states improving the quality of defense counsel in death-penalty cases. Efforts last week to obtain a rundown from Kyl's office on what, exactly, the senator finds wrong with the bill scheduled for Judiciary Committee markup on July 7 went unanswered. But not so silent on Thursday was the editorial page of the Boston Globe, which ran an editorial noting that Kyl has filed a competing bill that "strips away the Innocence Protection and death-penalty sections." "Kyl's alternative would devastate the bill's original intent," the editorial warned. "The U.S. system of justice is balanced between respect for the defendants' rights and the need to punish wrongdoers," the Globe added, urging the Senate to approve the bill as passed by the House. (source: Arizona Republic) CALIFORNIA: Ex-bartender takes stand in Cooper case A former bartender testifying in the case of death row inmate Kevin Cooper said he remembered 3 unfamiliar men entering his bar on the night 4 people were killed in a nearby home. But Ed Lelko said Friday the men were not covered in blood, contradicting written statements from 2 patrons who said they also saw the men enter the bar on the night of June 4, 1983. Defense attorneys for Cooper say three white men committed the murders for which he was sentenced to die, and that police framed him for the murders. Investigators found a bloodstained T-shirt near the bar shortly after the killings, and DNA tests showed that the blood was a mixture of Cooper's and one of the victims. David Alexander, lead counsel for Cooper, said Saturday that he did not consider Lelko's testimony a setback to his client's case. "When all the witnesses have been heard on this matter and everything comes out, it will support Mr. Cooper's innocence," Alexander said. Alexander said another seven witnesses - all of them either patrons or employees of the Canyon Corral Bar - are scheduled to testify when hearings resume Monday in U.S. District Court in San Diego. The bar was about a mile to a mile and a half away from the crime scene. Cooper's attorneys contend the three men committed the murders and that police planted his blood on the shirt. Cooper was eight hours away from being executed in February when the U.S. 9th Circuit Court of Appeals granted him a stay and ordered the lower court to determine if additional testing of evidence was warranted. A federal judge this month ordered DNA tests on hairs found on 2 of the 4 victims. Cooper was convicted in 1985 of killing Douglas and Peggy Ryen, their 10-year-old daughter, Jessica, and 11-year-old family friend Christopher Hughes, who was attending a sleepover at the Ryens' Chino Hills home. 8-year-old Joshua Ryen had his throat cut but survived. Prosecutors said Cooper attacked the family with a butcher knife and hatchet. USA: Sentencing Bombshell The Supreme Court dropped a bombshell on the world of criminal sentencing last week. The case, Blakely v. Washington, is the latest and most dramatic in a line of cases in which an ideologically eclectic five-member majority has sought to breathe new life into the right to trial by jury. The cause seems noble. But this line of cases has been a Pandora's box, opened now by the Blakely decision. The decision casts grave and unwarranted constitutional doubt on sentencing regimes around the country, including federal sentencing guidelines, that have been designed to make punishments more predictable and more evenly applied. The principle, first articulated 4 years ago in Apprendi v. New Jersey, seems simple and attractive from a civil libertarian point of view: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." A fact that pushes a sentence beyond the statutory maximum for a particular crime, the theory goes, is really an element of a different, more serious crime -- and such elements, under the Constitution, must be proven to the jury. But the court has never been clear about what facts count as elements and what facts count as mere factors in sentencing, which traditionally can be weighed by judges. Now, in Blakely, the court has answered this question, and its answer is stunningly disruptive. Ralph H. Blakely Jr. was not, in fact, sentenced beyond the statutory maximum that his kidnapping offense could have garnered him. He was sentenced to 90 months in prison on a crime that could have netted him 10 years under Washington state law. Yet under Washington's sentencing guidelines, Mr. Blakely's presumptive sentencing range was limited to only 53 months, though the sentencing judge was permitted to exceed this range if he found exceptional circumstances -- which he did. But these circumstances, Justice Antonin Scalia held for the court, must be proven to a jury. In other words, just about any factor that increases a sentence beyond a legally prescribed expectation needs to go to a jury, even if the ultimate sentence imposed remains within the range prescribed by law. Under this principle, Justices Sandra Day O'Connor and Stephen G. Breyer argued in passionate and lucid dissents, years of sentencing reform at the state and federal level cannot stand. For many reform laws rely on factors found by judges and probation officers after conviction to guide prison time up or down. The results of forbidding this are perverse. Legislatures will either have to end the trend toward more predictable sentencing -- thereby injecting back into the justice system the unevenness and inequity that sentencing reform was meant to address -- or prosecutors will have to list every potential sentencing factor in their indictments. This latter option would mean that highly prejudicial material now kept from juries and considered only in sentencing hearings would be put before them. The results of this reckless opinion could well be a system less fair than the one that -- in the name of the rights of the accused -- it replaces. (source: Editorial, Washington Post)
