Sept. 5
KANSAS:
Death penalty unlikely for BTK
If he's ever caught and prosecuted, Wichita's most notorious serial killer
would be tried under the laws that were in effect when his crimes
occurred.
If Wichita's BTK strangler were ever caught, convicted and sentenced for
his crimes, it's unlikely he would get the death penalty.
In fact, the man who terrorized the city in the 1970s through a series of
brutal killings could be convicted of all the charges against him and
still be eligible to see a parole board in 15 years.
That's because BTK would be tried under the laws in effect at the time of
the crimes -- and death penalties across the country were invalidated by
the U.S. Supreme Court in 1972, before the first known BTK killings
occurred.
It wasn't until 1994, eight years after the last killing that BTK takes
credit for, that Kansas reinstated its death penalty.
"The death penalty, as it was written in Kansas at that time, was
unconstitutional," said Richard Ney, a former Sedgwick County public
defender. "I don't think you can just get in your time machine and take
the law back to 1974."
It's one more twist in a case involving the city's most notorious serial
killer, who claimed national headlines in March when he broke 25 years of
silence by sending a letter to The Wichita Eagle.
Wichita police say BTK committed seven murders from Jan. 15, 1974, when
four members of the Joseph Otero family were killed, through Dec. 8, 1977,
when Nancy Fox was found dead in her home.
At least 1 former prosecutor, Steve Joseph, said if he were still in the
district attorney's office, he'd like to take a shot at prosecuting BTK
for capital murder.
"The capital punishment statute in Kansas was not repealed until 1978,"
Joseph argues. "Therefore, at the time of the Otero killings, and any
other killings up until to July 1, 1978, the death penalty was still in
effect in Kansas."
Joseph said he thinks it might be possible to apply the current capital
murder sentencing procedures to the 1970s capital murder law. Kansas was
one of many states that kept capital murder laws on the books after the
Supreme Court said that Georgia's law constituted cruel and unusual
punishment. The court said states needed to write guidelines for judges
and juries to follow when choosing between life and death. Kansas did that
when it re-enacted its law in 1994.
"Everybody sort of sailed along throughout the country, just assuming
their statutes were no good anymore," said Joseph, who as a prosecutor
visited the scene of one of the BTK crimes -- the March 17, 1977,
strangulation of Shirley Vian in her home at 1311 S. Hydraulic.
"But they weren't repealed."
Joseph's opinion was not shared by others who were asked the question.
Wichita lawyer Jack Focht said he doesn't think capital murder charges
would stand in a case that occurred during a time the state's death
penalty law was deemed unconstitutional. He said he didn't buy Joseph's
notion that the current sentencing law could be applied to a 1974 law.
"I'd rather have the other side of that argument," he said.
Focht, a former prosecutor, represented defendants in capital cases under
the old death penalty law in the 1960s.
Vern Miller, who was Kansas attorney general when BTK's first known crimes
occurred and Sedgwick County district attorney in 1977, also was
skeptical. But he didn't rule out the possibility of prosecutors trying to
do it.
"I think that probably would have to be litigated," he said.
All lawyers and judges who were asked about the case agreed that a BTK
trial would have to follow the laws in effect when he was active in the
1970s and 1980s -- long before the state enacted the Hard 50 prison
sentence and the current death penalty.
"You prosecute under the law that exists at the time of the crime,"
District Attorney Nola Foulston said.
She wouldn't speculate on what charges might be filed in the event of a
BTK arrest.
"I can tell you he would be exposed to the fullest extent of the law,"
Foulston said.
District Judge Greg Waller, who heads the criminal division of Sedgwick
County District Court, said the state's murder statute hasn't changed much
since the 1970s.
"The sentencing is what would be the key," he said. "He'd have to be
sentenced under the 1970s law."
Waller, who prosecuted many murder trials in the 1980s and 1990s, said the
state's current criminal code went into effect in 1970, when laws dating
as far back as the 1800s were rewritten. The 1970 parole law said:
"Persons confined in institutions shall be eligible for parole after 15
years if sentenced to life imprisonment."
That language was replaced in 1978 by a law that authorized judges to run
life sentences consecutively.
In 1985, Arnold Ruebke Jr. received 12 consecutive life terms for the Oct.
29, 1984, shotgun slayings in Reno County of 2-year old twins James and
Andrew Vogelsang and their 18-year-old baby sitter, Tammy Mooney. That
effectively gave him a minimum sentence of 180 years -- the longest of
anyone sentenced in Kansas in the past 30 years.
Retired judge Keith Sanborn, who was the Sedgwick County district attorney
when the first 5 BTK killings occurred, said he didn't think BTK, if
caught and convicted, would ever be paroled.
"I think if the person is discovered, there would be plenty of things to
charge him with," he said.
(source: Wichita Eagle)
USA:
Campaign '04: Kerry, Bush at near-opposite extremes on death penalth
Should Sen. John F. Kerry be elected in November, the United States would
have as president its strongest opponent of the death penalty in at least
the last half-century, capital punishment opponents believe.
Kerry would be "the most anti-death penalty president elected in the
modern era," according to David Elliot of the National Coalition to
Abolish the Death Penalty.
Between the Massachusetts Democrat and his Republican opponent, President
George W. Bush, there are clear distinctions when it comes to capital
punishment. The topic is among a series of issues addressed by the U.S.
Catholic bishops in their election-year publication, "Faithful
Citizenship: A Catholic Call to Political Responsibility."
As governor of Texas, Bush signed off on 152 executions. As president, he
has maintained his support for the death penalty. Three men have been
executed under federal law while he has been in office, the 1st federal
executions since 1963. (In 1972 the Supreme Court overturned death penalty
laws. A revised federal law was enacted in 1988.)
Bush also has expanded use of the death penalty through new
terrorism-related provisions and he is seeking further broadening of the
Patriot Act to allow capital punishment in more cases. Attorney General
John Ashcroft also has encouraged federal prosecutors to evaluate more
crimes for possible capital prosecution under federal laws, especially in
states that do not have state-level capital punishment laws.
Kerry has said he opposes capital punishment except in cases involving
terrorism. While he may have voted in favor of some omnibus crime bills
that included expansions of capital punishment, on stand-alone legislation
Kerry has opposed the death penalty in a variety of ways.
He was one of just 5 co-sponsors of a 2001 bill calling for a nationwide
moratorium on executions while a study is conducted of how the death
penalty is applied.
He opposed bills that would have re-established the death penalty in the
District of Columbia and battled efforts to make certain drug offenses
capital crimes. Kerry also has supported bills to prohibit capital
punishment for juveniles and the Innocence Protection Act, which would
open up the use of DNA evidence.
Frank McNeirney, director of Catholics Against Capital Punishment, said
that as far as the death penalty is concerned Kerry represents a
refreshing change of pace among presidential candidates.
Every president in recent history has supported the death penalty while in
office. Former President Jimmy Carter now speaks out against the execution
of juveniles and other forms of capital punishment, but as governor of
Georgia he signed a law reinstating the death sentence there.
McNeirney noted that this year the Democratic platform even dropped a
reference to supporting capital punishment, which it had included for at
least the previous three campaign cycles. The Republican platform says the
party supports "courts having the option to impose the death penalty in
capital murder cases."
Most U.S. provisions for the death penalty are at the state level, and the
president has no role in how they are applied, with the somewhat distant
exception of the appointment of federal judges who may ultimately rule on
some capital cases.
The federal death penalty does fall under the president's purview,
however, particularly through decisions of the Justice Department about
when capital convictions are pursued.
"One reason why death penalty opponents would welcome a Kerry victory is
that it would undoubtedly result in the appointment of a U.S. attorney
general who either opposes capital punishment or, at the least, would be
far less aggressive in seeking death sentences for crimes covered by
federal law than ... Ashcroft," McNeirney said.
He described Ashcroft's "passion for seeking the death penalty" as
unprecedented, and noted that the attorney general frequently overrides
the advice of local U.S. attorneys to decide in favor of prosecuting more
cases under death penalty laws, "extending even to states where citizens
and their lawmakers have long ago abolished executions."
McNeirney noted that the president can exercise clemency for those
convicted of federal crimes as well as potentially influence the use of
capital punishment in military prosecutions.
The president might also create a commission to evaluate the application
of the death penalty nationwide, as has been done by some states, he
added.
The Kerry campaign did not respond to requests from Catholic News Service
for comment about how he might approach those issues.
"Faithful Citizenship" summarizes the church's position by saying,
"Society has a right and duty to defend itself against violent crime and a
duty to reach out to victims of crime. Yet our nation's increasing
reliance on the death penalty cannot be justified. We do not teach that
killing is wrong by killing those who kill others."
It goes on to note that Pope John Paul II has said the death penalty is
"both cruel and unnecessary" in modern society.
"We encourage solutions to violent crime that reflect the dignity of the
human person, urging our nation to abandon the use of capital punishment,"
the document says. "We also urge passage of legislation that would address
problems in the judicial system, and restrict and restrain the use of the
death penalty through use of DNA evidence, a guarantee of effective
counsel, and efforts to address issues of racial justice."
(source: Catholic News Service)
MISSISSIPPI:
Miss. prisons owe better conditions
I appreciated Perspective Editor Sid Salter's article about prisoners
serving time on death row ("Death row: 69 inmates, 97 victims waiting on
justice," Aug. 8) because it reminds Mississippians that the men and 1
woman sentenced to die in our state are individuals with names, faces, and
lives that continue on, sometimes for decades, despite their sentences.
In June, a unanimous panel of judges for the 5th U.S. Circuit Court of
Appeals agreed with Willie Russell and the other men housed on the
Mississippi State Prison at Parchman's death row that the filth, stifling
heat, biting insects and lack of mental health care created living
conditions that are inhumane and cruel.
The state may be authorized to execute death-sentenced prisoners, but it
may not torture prisoners to death while they are pursuing their right to
appeal sentences.
I applaud the commonsense statements issued by the federal courts that "no
matter how heinous the crime committed, there is no excuse for such living
conditions." Mississippi's prisons must do better.
Nsombi Lambright, ACLU of Mississippi----Jackson
(source: Letter to the Editor, Clarion-Leldger)
OREGON:
Short rations starve appeals courts
An Oregon State Bar committee has completed a needed inspection of state
Supreme Court and Court of Appeals operations. The probe produced good
news and bad about courts that mostly correct errors in prior court and
agency proceedings and explain the law.
In broad terms, the judges and justices ork hard with the resources they
have, but serious shortages of funding and staffing, compounded by needed
organizational reforms, produce delays and inefficiencies. Some specifics:
Oregon's 10 Court of Appeals judges handle a "staggering workload" of
about 4,000 filings per year, regularly second or third in the nation in
filings per judge and per capita. A downside result is that most cases are
dismissed or "affirmed without opinion," so lawyers and clients get no
legal guidance.
The Supreme Court "is meagerly staffed" -- a handful of central court
lawyers plus one law clerk per justice. Consequently, fast-track cases
that the Legislature assigns (the PERS controversies, for example) can
force the court to table consideration of other appeals. Also, a broad
array of administrative and mandatory-review cases (ballot titles, lawyer
and judge discipline), plus budget shortages that delay replacement of
court staff and that caused a partial court furlough in 2003 can
significantly slow decisions.
Understaffing and high workloads of required cases and administrative
duties have another unsettling effect. They reduce the Supreme Court's
ability to accept cases that the justices think are important to clarify
issues of constitutionality, jurisdiction or legality of agency actions.
More than 40 percent of high court cases are appeals or direct reviews
that the justices must accept for review.
Justices and their aides spend 25 % to 40 % of their time deciding which
petitions they will accept for discretionary review. A screening system
could simplify this workload, improve time-to-decision and preserve
fairness, the bar committee said.
It typically takes 2 1/4 years for cases to move from filing to issuance
of a high court judgment. The briefing, decision and total time on review
periods "are longer than advisable." The premium the court puts on
unanimous decisions (less than 10 % of cases have separate opinions) adds
to the delay, the committee hinted.
Resolving death penalty appeals seems to test the outer bounds of normal
life expectancy, many think. The justices decide most of these cases in 8
to 9 months from argument. This is not excessive, considering the number
of alleged errors the court must address. But the period leading up to
high court arguments -- 4 to 5 years to complete transcripts and briefing
-- is "by almost any measure . . . unreasonable," the bar committee found.
Cutting the time extensions granted lawyers and reducing how long it takes
for cases to get to oral argument, possibly by holding oral arguments more
often, are among the less-technical recommendations that the committee
thinks could speed the court's output.
The committee also suggested "some ideas that the court might wish to
consider": putting a 90-day time limit on an initial draft opinion from a
justice assigned a case; a "drop-dead deadline," again perhaps 90 days, to
produce a changed draft or separate opinion; tickler systems and extra
support to see that no case languishes under advisement for more than 15
months; and quick dismissal of cases in which justices are unlikely to
reach a majority opinion. Despite the deferential tone of this section,
its message comes across: Some justices' work ethic needs to be improved
by stricter internal rules at the court.
Oregon's appeals courts do need to make reforms, including investments in
data gathering, to boost efficiency and timely decision-making. Some
changes can be made at no cost simply by changing some internal practices.
But it's near-impossible for this co-equal branch of government to make
big changes when its operations are disproportionately underfunded
compared with those of the Legislature and the Governor's Office.
(The full Appellate Process Review Committee Report, including
recommendations by the Oregon State Bar's board of governors, can be found
at www.osbar.org/.)
(source: The Oregonian)
