Oct. 7 SOUTH DAKOTA: Supreme Court upholds conviction and death penalty In Pierre, the South Dakota Supreme Court has once again upheld Donald Moeller's convictions and death sentence for the 1990 killing and rape of a 9-year-old Sioux Falls girl. The high court ruled unanimously Thursday that DNA evidence was properly admitted in Moeller's trial, his lawyers did an effective job of representing him, and the procedures used to impose the death penalty were constitutional. "We're delighted," South Dakota Attorney General Larry Long said of Thursday's decision. The Supreme Court's ruling may end Moeller's appeals in state courts, but he is unlikely to be executed for a number of years because he is expected to pursue further appeals in federal court. "We're not looking for an execution anytime soon," Long said. Moeller, 52, has been sentenced to die by lethal injection for the May 8, 1990, slaying of Becky O'Connell of Sioux Falls. He also was given a 25-year sentence for raping the child. Prosecutors have alleged that Moeller abducted the girl near a Sioux Falls convenience store, drove her to a secluded area near Lake Alvin in Lincoln County, and then raped and killed her. Her nude body was found the next day. Her throat had been slashed and she had been stabbed several times. Moeller was convicted by a Yankton County jury on Sept. 1, 1992, for 1st-degree murder and rape. But the state Supreme Court reversed the convictions in May 1996, ruling that improper evidence was used at the trial. A 2nd trial was held in Rapid City, and Moeller was convicted again in 1997. The second jury also imposed the death penalty. The Supreme Court upheld those convictions and Moeller's death sentence in a direct appeal in 2000. Moeller then returned to court to argue his convictions should be set aside because his constitutional rights were violated by the introduction of some evidence, faulty instructions to the jury, and the process used to sentence him to death. Moeller contended he was unfairly convicted because the judge in his trial improperly allowed the admission of DNA evidence that concluded he was virtually the only person on Earth who could have raped and murdered the girl. The appeal also argued that Moeller's trial lawyers did not adequately defend him because they failed to fully contest that DNA evidence. His two lawyers refused to take part in a 2-day hearing after saying they did not have enough time to prepare for it, and a circuit judge then ruled the DNA evidence could be used in Moeller's trial. The Supreme Court said the evidence was admissible, the same ruling the high court made when it considered Moeller's direct appeal 4 years ago. At issue is the final piece of DNA evidence introduced in Moeller's trial. The justices noted that reported court decisions indicate that no other U.S. court has ruled that kind of DNA evidence admissible, but they said a circuit judge followed proper procedures in determining that the genetic evidence was reliable enough to be used in the trial. In addition, Moeller's lawyers provided him with adequate assistance, both in dealing with the DNA evidence and with soil evidence, the Supreme Court said. The lawyers challenged the validity of the DNA evidence during Moeller's trial, the high court said. And the trial judge ruled that the lawyers' refusal to take part in the hearing on admissibility of the DNA evidence was a tactic they hoped would lead to a later reversal of his conviction. Moeller argued that his rights were violated because critical soil evidence linking his pickup to the crime scene was destroyed by an expert hired by the state. The expert said the soil sample had to be destroyed because a substance used to test it could cause cancer. The Supreme Court said the soil evidence was admissible because the defense had access to comparable soil samples and Moeller presented an expert witness who challenged the state's contention that the evidence linked Moeller's pickup and the crime scene. The appeal also contended that Moeller was denied a fair trial because the judge refused to give jurors further guidance when they were deciding whether to sentence Moeller to death or life without parole. The jury asked whether Moeller would ever have a chance for parole if he got a life sentence. The Supreme Court said no further explanation was necessary. "There is no ambiguity in an instruction that defines life imprisonment as 'life without parole,'" Justice John K. Konenkamp wrote for the court. Moeller also argued his rights were violated because the indictment charging him with murder did not list the aggravating circumstances the state would seek to use as justification for the death penalty. A jury must find the existence of at least 1 aggravating factor in order to impose the death penalty. South Dakota's highest court said recent U.S. Supreme Court decisions do not require that aggravating circumstances be included in an indictment or other formal charge issued by a prosecutor. Moeller got adequate warning about the factors that would be alleged when he received written notice eight months before his trial that the prosecutor would seek the death penalty, the justices said. The U.S. Supreme Court's recent decisions have required that juries, not judges, decide whether to impose the death penalty. But those decisions have not required that indictments include the alleged aggravating factors that could justify a death sentence, the South Dakota court said. (source: Associated Press) USA: Study of Capital Jurors Challenges the Juvenile Death Penalty A just-published study by two University of Delaware faculty members and two Northeastern University researchers challenges the constitutionality of the juvenile death penalty. The study, which was conducted by UDs Valerie P. Hans, professor of sociology and criminal justice, and Benjamin D. Fleury-Steiner, assistant professor of sociology and criminal justice, in conjunction with William J. Bowers and Michael E. Antonio of Northeastern University, finds jurors very reluctant to give the death penalty to juvenile defendants because of their immaturity and dysfunctional family backgrounds. "We've discovered why jurors across the nation very rarely sentence a juvenile defendant to death," Hans said. "Jurors see juveniles as cognitively and socially immature, which makes them less than fully responsible for their crime. They're too young for the death penalty." "Juvenile capital defendants come from families that are often dysfunctional and have done a poor job raising children," Fleury-Steiner said. "Jurors are especially angry at the defendants families and hold them partly to blame. As one female juror told us, 'I wish we could put his parents on trial.'" "Jurors find the death penalty less acceptable for juveniles than defendants with mental retardation for whom the death penalty has already been declared unconstitutional," Bowers, a principal research scientist, said. "Additionally, the likelihood of a death sentence drops off drastically when jurors know the defendant was under the age of 18 at the time of his crime." On Wednesday, Oct. 13, the United States Supreme Court is scheduled to hear oral arguments about the constitutionality of the juvenile death penalty in Roper v. Simmons. Christopher Simmons was 17 at the time of his crime, but a jury convicted him and sentenced him to death. Earlier this year, the Missouri Supreme Court set aside his death sentence on the grounds that execution of persons under 18 years of age at the time of their crimes violates the U.S. Constitution. The U.S. Supreme Court will decide whether the death penalty for juveniles violates the "conscience of the community." The decision-making of capital jurors is a key way to measure community conscience, Hans said, and the new study from the Capital Jury Project examines the decision-making of 48 jurors from 12 capital cases with defendants 17 or younger at the time of their crimes, comparing their views with more than a thousand jurors who decided capital cases with older defendants. The study finds that jurors are far less likely to impose the death penalty when the defendant is less than 18 years of age than when the defendant is an adult. The study shows that the much greater reluctance of jurors to impose death sentences in juvenile than in adult cases is explained by jurors thinking about the defendant, his responsibility, and his maturity. The extensive juror interviews reveal that jurors view juvenile defendants distinctively. Jurors in juvenile cases see a defendant's dysfunctional family background and upbringing as responsible in part for his or her behavior. They see the defendant as less than a fully mature and responsible member of society. Jurors emphasize the juvenile defendant's diminished or partial responsibility for the crime. All these factors lead jurors to decide on life rather than death for the vast majority of juvenile capital defendants. The study also shows that jurors are more reluctant to impose a death sentence when the defendant is under 18 than when they believe he or she is mentally retarded. The U.S. Supreme Court has now outlawed capital punishment for the mentally retarded because it violates the conscience of the community. The findings are based on data from the Capital Jury Project, a study of the decision making of capital jurors conducted by university-based researchers from 14 states with the support of the National Science Foundation. The project has interviewed 1,198 jurors from 353 capital trials in 14 states including Alabama, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia - states responsible for 76 % of the persons on death row and 78 % of those executed. The death penalty is rare for juvenile offenders. Nationally, they comprise only 2 % of death row inmates and those executed. Of the 1,198 capital jurors interviewed by CJP investigators, 48 served on cases with a juvenile defendant. The juvenile cases in the CJP sample are regionally diverse and representative of juvenile cases on death row. They come from Alabama, Georgia, Indiana, Kentucky, Pennsylvania, Texas, and Virginia. The juror interview findings are consistent with public opinion polls showing that most Americans oppose the death penalty for juveniles, Fleury-Steiner said. Two articles describing the findings are posted on the Capital Jury Project web site at [http://www.cjp.neu.edu]. A summary of the principal research findings can be found in an article titled "Capital Jurors as the Litmus Test of Community Conscience for the Juvenile Death Penalty" in the May-June 2004 issue of the journal Judicature. A full report of the research findings can be found in an article titled "Too Young for the Death Penalty: An Empirical Examination of Community Conscience and the Juvenile Death Penalty from the Perspective of Capital Jurors" in the June 2004 issue of the Boston University Law Review. (source: Univeristy of Delaware) ******************* Scott Turow on the death penalty, law and sweet success Scott Turow's international fame has spread as he penned one best-selling legal thriller after another following the debut of "Presumed Innocent" in 1987. But the 55-year-old attorney also has been prominent in legal circles, as the partner in a prestigious Chicago firm and a member of the Illinois Governor's Commission on Capital Punishment. Turow's service on that 14-member citizens panel resulted in his second non-fiction book, "Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty," now out in paperback from Picador. In this award-winning book, Turow eloquently explains how what he learned on the governor's panel helped him reconcile his conflicting feelings about the death penalty and finally arrive at a position of outright opposition on a variety of grounds. Turow, an engaging talker, discussed this during a Tuesday visit to Seattle. Since "Ultimate Punishment" was published in 2003, are you encouraged or discouraged by developments with the death penalty in America? Anybody who is realistic about the death penalty has to see there's an ebb and flow about this issue. Generally speaking, things continue to inch toward a recognition that the death penalty is just not worth it, but change will be slow in coming. There is a moratorium on use of the death penalty in Illinois now and everybody seems at peace with that. At least until there's another John Wayne Gacy and the whole debate will be revived. You say that if Gacy, who murdered more than 30 men, were on the gurney awaiting lethal injection, you could press the button to start that process. Yet you say you're against the death penalty. How do you reconcile those positions? I don't deny my own anger and moral outrage for crimes like Gacy's. I don't deny there are cases like Gacy's where it does not seem morally repugnant to put a murderer to death in reprisal for his crimes. But my point is: You can never design a death penalty system to reach just the "right cases" without also reaching "wrong cases," where the innocent person may have been convicted or the application of the death penalty has been screamingly unequal. You've had seven best sellers as a writer and your legal career has also been marked by great success. What keeps you writing and practicing law when you could retire? People who've had this success have three things in common. One is that they've been lucky and anybody who has been greatly successful and does not recognize the role of luck in that is a fool. The second is they've worked very hard and the third is they've enjoyed using whatever talent they got and they had a pride in what brought them to prominence. I do what I do because I enjoy it, although I often confess that some aspects of the practice of the law make me worn out on the law and I do not do it as much because of that. There is the pressure to get a brief done on time and dealing with the ugly SOB on the other side. Life -- life is too short. ... There are times when I have walked out of a courtroom and promised myself that I will never try another case. You're probably not going to pick a favorite among your books, but "Presumed Innocent" must hold a special place in your heart. It is my signature book. I remember reading a book at age 16 by the screenwriter for "Bullitt" who said writing it had changed his life. I had dreams of being a writer and I wondered what it would be like to be able to say a book had changed my life. "Presumed Innocent" did that. ... I went from somebody writing on the morning commuter train to being a best-selling novelist at a speed that was great enough to make my head spin like in "The Exorcist." I read a few pages of the novel every now and then and I wish I could understand what it was that made that book so special. If I did, I would put it into a bottle. But I've concluded the thing that makes certain books so compelling is indefinable. ... And the movie version of "Presumed Innocent" -- how could I avoid it, since it is on TV so often. One of my kids is always calling me into the room with, "Hey, Dad, 'Presumed Innocent' is on again!" And we all watch for a few minutes, but it's like staring into a fire in the fireplace for us. Then we pull away. (source: Seattle Post-Intelligencer) MASSACHUSETTS: Candidates' Corner: How would you vote on gay marriage and capital punishment? Rep. James Murphy opposes gay marriage and capital punishment. "I support marriage as between one man and one woman only. "I also support civil unions by which 2 individuals may enter into a legal relationship in which legal rights and responsibilities are conferred upon each other. "Most importantly, I believe that this is an issue which should be decided by each individual member of our society and not by judges within the judicial branch. During the last legislative session, I voted to put this question directly to the voters," he said. "I oppose capital punishment. Prior to being elected state representative I served as an attorney and judicial clerk assigned to the Massachusetts Appeals Court which hears statewide criminal appeals including murder appeals. "I also served as an assistant district attorney prosecuting criminal cases throughout the city of Boston. "The cases I prosecuted consisted of drug cases, gun cases, domestic violence cases, and assault and battery cases, among others. One thing I have learned through my legal education at Suffolk University Law School, my time as an attorney and judicial clerk hearing murder appeals, and my time as a criminal prosecutor, is that the judicial system is not a perfect one and it will never be. "One has to look only so far as the many overturned convictions of death row inmates exonerated due to faulty investigations, mistakes in the courtroom, or new evidence. "As a former prosecutor, I believe that individuals who commit crimes should be held fully accountable for those crimes. "However, knowing first hand that the judicial system is not a perfect one, I cannot support capital punishment by which an innocent person will inevitably be put to death. Death is a sentence which can never be reversed," he said. (source: Weymouth News) VIRGINIA: Malvo case exposes states death-penalty split True to Virginias roots, the state political establishment will cast its lot with the executioners when the U. S. Supreme Court takes up the juvenile death penalty on Oct. 13. Attorney General Jerry Kilgore has joined his counterparts in Alabama, Delaware, Oklahoma, Texas and Utah in signing a legal brief supporting retention of the ultimate penalty for youths whose crimes were committed at ages 16 or 17. Unfortunately, thats par for the course from the state that carried out the first execution in the New World and that is second only to Texas in executions since death-penalty statutes were revised in the 1970s. This time, however, the hang-em-high crowd wont be the only ones representing Virginia at a Supreme Court death penalty hearing. Also speaking loud and clear by their actions will be the Chesapeake jury that gave Lee Boyd Malvo life in prison, rather than death, for his role in the I-95 sniper killings 2 years ago. That decision in one of the most notorious crime sprees in American history is powerful testament to evolving community standards on the execution of juveniles. Despite gruesome testimony about Malvos role in the cold-blooded, random killings, jurors appeared persuaded that his susceptibility to adult influence mitigated against death. That, in fact, is the choice of most of the civilized world. When it comes to judging those whose crimes were committed before they turned 18, it is increasingly the choice of Americans as well. An ABC News poll released in December 2003 showed 7 out of 10 Americans oppose the execution of juvenile offenders. 31 states now ban the practice. The 2 most recent additions, South Dakota and Wyoming, joined the list this spring. Virginia is 1 of just 6 states that have carried out executions of individuals who were younger than 18 at the time of their offense. Shamefully, 3 such deaths puts Virginia 2nd only to Texas in the category. Virginia politicians appear not to have heard, or at least heeded, the evolving science about adolescent brains. Increasingly sophisticated research affirms what many parents have long suspected: that full brain development does not occur until the late teens or 20s. Young males often display an impetuousness and lack of control that is eclipsed by age. Since 1994, death sentences for juvenile offenders have dropped nationally. An intensive, soon-to-be-published Columbia University study credits evolving attitudes, rather than factors such as a decreased juvenile homicide arrest rate. Regrettably, many leading Virginia politicians retain their knee-jerk embrace of capital punishment in broad form. When the Supreme Court struck down the penalty for individuals with mental retardation two years ago, state policy-makers cleaved to the losing side. This time, however, their voices may be drowned out by the action of a conservative, tough-on-crime community that came face-to-face with the reality of juvenile crime and drew a life-and-death distinction. (source: Virginian-Pilot)
