Oct. 11 CALIFORNIA: A Risk-Filled Use of DNA At first glance, Proposition 69 seems an easy call: The measure, as its backers argue, would probably help solve more cold crimes by rapidly expanding the state's existing criminal DNA database. But the measure is so broadly written that each year it would turn thousands of people not found guilty of a crime into perpetual suspects. Proposition 69 is a good example of the problems of lawmaking by initiative. If California's DNA database needs expanding, the Legislature should do it, using appropriate safeguards to protect individuals not convicted of a crime. Proposed laws can be debated, modified, softened or hardened. Ballot initiatives are take-it-or-leave-it. State law already requires all convicted felons to give a DNA sample that goes into a continuously growing databank. Because repeat offenders commit most crimes, this sampling strategy makes sense. DNA is a powerful tool that, when carefully analyzed, can definitively exonerate or implicate suspects. That's why Bruce Harrington, a Newport Beach attorney and real estate developer, spent $1.3 million of his own money to get this measure on the ballot. Harrington's brother and sister-in-law were murdered in 1980 by an unknown serial killer, and he believes that wider DNA collection could identify the perpetrator. But Proposition 69 goes too far by requiring a cheek swab from all adults and juveniles arrested for a felony, whether they are found guilty or not. With few exceptions, the samples would stay on file forever. Each year, an estimated 50,000 Californians arrested on felony charges are found not guilty or their cases are dropped. Yet under Proposition 69, the DNA swabs taken when these individuals are booked could stay in the database virtually at a judge's unappealable discretion. The initiative turns these Californians into permanent "persons of interest" and clouds the bedrock presumption that one is innocent until proved guilty. Supporters argue that some of the 34 states that collect DNA include arrestees for serious felonies along with convicts. Yet only Louisiana samples all arrestees, as Proposition 69 would allow. Moreover, every state with a DNA registry, including Louisiana, does more than California would do to expunge the records of those not convicted. The lack of safeguards could lead to abuses like trumped-up arrests just so police officers could get an individual's DNA sample. Big deal, say backers - a law-abiding citizen whose DNA ends up in the state's database has nothing to fear. Backers argue that as a unique identifier, DNA is not much different from a fingerprint. Since everyone with a driver's license or a passport has been fingerprinted, why the fuss? For one thing, fingerprinting is ubiquitous and not in itself a mark of suspicion. It is a narrow form of identification and does not carry the broad personal information of DNA. If the goal is to expand the state's DNA database, the Legislature should at least build in safeguards to protect the innocent. The Times urges a "no" vote on Proposition 69. (source: Editorial, Los Angeles Times) **************** Death Penalty Question in Johnston Murder A decision on whether a North Valley murder suspect should face the death penalty, if convicted, has now been put on hold. Michael Williams is one of two people accused of killing 19-year-old Rose Johnston and burning her body back in March. The Madera County District Attorney's office decided to wait to make a formal declaration until the defense can present its reasons why Williams should not face the death penalty. Johnston's mother said the family of the victim is willing to accept whatever decision is made. A decision on whether the death penalty will be sought is expected in November. Another suspect, Raymond Elisarraras, took his own life while in jail back in August. (source: ABC News) TENNESSEE: Still on death row though 6 judges think he is innocent? You might call it a travesty. No, there's no might about it. Call it a travesty, for that is what is happening in the case of Tennessee death row inmate Paul Gregory House. House, in his mid-40s, remains on death row although 6 of the 15 members of the U. S. Sixth Circuit Court of Appeals said Wednesday that he is not guilty of the murder for which he was convicted in 1986 and should be freed immediately, according to a report in The New York Times. Eight other judges on the court said in an appeal decision that House should be executed while another judge said the inmate who was sentenced from Union County should at least be given a new trial. "I am convinced that we are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed," Judge Ronald Lee Gilman of Memphis wrote in a dissenting opinion. "Was Carolyn Muncey killed by her down-the-road neighbor, Paul House, or by her husband Hubert Muncey? "The evidence at House's state-court trial clearly pointed to him as the perpetrator, highlighted by the physical evidence of the semen and the blood. But the evidence at House's habeas corpus hearing before the district court just as clearly pointed to Hubert Muncey as the guilty party, highlighted by Muncey's confession of guilt to two female acquaintances, the uncontroverted fact that the semen found on his wife's clothing turned out to be his own and the considerable doubt cast on how the victim's blood came to appear on House's blue jeans." Gilman added: "At the end of the day, I am in grave doubt as to which of the above 2 suspects murdered Carolyn Muncey. " A new trial would allow the jury to assess House's guilt or innocence free from the erroneous introduction of the semen evidence, with full knowledge of the controversy surrounding the blood evidence and with the benefit of the testimony implicating Hubert Muncey. Under circumstances where we face the execution of a man who might well be innocent, I believe that our system of justice demands no less." Then there was Judge Gilbert Merritt of Nashville, who said in a dissenting opionion that "I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide. "The court's opinion, like the attorney general's argument for the state, regards as 'undisputed' old evidence and inferences that are now contradicted by other evidence in the case. It fails to describe adequately the persuasive case of actual innocence that the petitioner's newly discovered evidence raises. "Nor does it adequately describe the legal standards to be applied." Merritt later wrote in his dissent that "all of the state's physical evidence, both blood and semen, allegedly tying House to the murder, has been effectively rebutted." "The new body of evidence as a whole so completely undermines the case against House and establishes a persuasive case against Muncey that, had it been presented at trial, no rational juror could have found evidence sufficient for conviction. "The new evidence so completely turns the case around that the proof is no longer constitutionally sufficient to warrant a conviction or imposition of the death penalty. Thus, House should be immediately released." But Paul Gregory House remains incarcerated at Riverbend Maximum Security Prison in west Nashville because eight other judges on the Sixth Circuit Court of Appeals, all appointed by Republican presidents, voted to uphold his sentence. House is housed in Riverbend's infirmary because he suffers from a severe case of multiple sclerosis. His attorney, federal public defender Stephen M. Kissinger, told me Thursday that House's case will surely be appealed to the U.S. Supreme Court. "He is absolutely innocent," Kissinger said in a telephone interview. "There is no doubt that he's innocent. He's been cleared of rape by DNA, and the victim's husband has confessed to murdering his wife and hiding her body in much the same manner as it was found. "There are so many things which point to Mr. House's innocence. It's easily the best case of innocence I have seen in 20 years of practicing law." Kissinger is worried that his client won't make it to see what the U.S. Supreme Court does with his case. He's worried that his client might die before then, die in prison on death row even though he may well be an innocent man. Wouldn't that be an awful thing to happen? And while it wouldn't be the 1st time for that to happen somewhere, it would be impossible to undo. And that would be more than awful. (source: Dwight Lewis is a columnist, regional editor and member of the editorial board for The Tennessean) ****************** A troubling death-row case and a divided court Even those people who believe in their hearts that capital punishment is appropriate for the worst offenders should be troubled by a death penalty case from Tennessee just decided by the Sixth Circuit Court of Appeals. The decision and the dissent issued last week in the case of Paul Gregory House were diametrically opposed - so much so that one wonders if the judges considered the same facts. The judicial divide was also totally partisan, with eight Republican appointees voting for execution, 6 Democratic appointees voting that the defendant is innocent, and one separate dissenter calling for a new trial. House was convicted of the 1985 rape and murder of Carolyn Muncey in Union County. Prosecutors offered as evidence Mrs. Muncey's garments, which bore semen that matched House's blood type. Since then, DNA testing, which was unavailable at the time of the trial, determined that the semen was that of Mrs. Muncey's husband, Hubert. At a subsequent federal court hearing in the case, 6 witnesses implicated Hubert Muncey, including two residents who said that he admitted to killing his wife accidentally while beating her. The judges in the majority concluded that the lack of rape evidence doesn't mean that House didn't abduct and murder the victim. The dissent, written by Judge Gil Merritt of Nashville, characterized this as a case where investigators, prosecutors and reviewers have closed ranks and refused to admit error. What makes this decision so remarkable is that it doesn't turn on a narrow question of law, but on House's actual guilt or innocence. The New York Times' story last week quoted Hofstra University law professor Eric Freedman as saying the House case was "unprecedented." House is hardly the 1st death row inmate to claim innocence. Yet numerous federal judges, including Justice Sandra Day O'Connor, have admitted the likelihood that this nation's system of justice is allowing innocent people to be executed. This state has executed just one person since the death penalty was reinstated. But many other cases are in the pipeline, and as the ultimate punishment approaches in each case, the questions of legality, certainty and morality must be more intense. This page opposes the death penalty on moral grounds. The House case, however, presents many more reasons to stop this execution. Even those people who believe in their hearts that capital punishment is appropriate for the worst offenders should be troubled by a death penalty case from Tennessee just decided by the Sixth Circuit Court of Appeals. The decision and the dissent issued last week in the case of Paul Gregory House were diametrically opposed - so much so that one wonders if the judges considered the same facts. The judicial divide was also totally partisan, with eight Republican appointees voting for execution, six Democratic appointees voting that the defendant is innocent, and one separate dissenter calling for a new trial. House was convicted of the 1985 rape and murder of Carolyn Muncey in Union County. Prosecutors offered as evidence Mrs. Muncey's garments, which bore semen that matched House's blood type. Since then, DNA testing, which was unavailable at the time of the trial, determined that the semen was that of Mrs. Muncey's husband, Hubert. At a subsequent federal court hearing in the case, 6 witnesses implicated Hubert Muncey, including two residents who said that he admitted to killing his wife accidentally while beating her. The judges in the majority concluded that the lack of rape evidence doesn't mean that House didn't abduct and murder the victim. The dissent, written by Judge Gil Merritt of Nashville, characterized this as a case where investigators, prosecutors and reviewers have closed ranks and refused to admit error. What makes this decision so remarkable is that it doesn't turn on a narrow question of law, but on House's actual guilt or innocence. The New York Times' story last week quoted Hofstra University law professor Eric Freedman as saying the House case was "unprecedented." House is hardly the 1st death row inmate to claim innocence. Yet numerous federal judges, including Justice Sandra Day O'Connor, have admitted the likelihood that this nation's system of justice is allowing innocent people to be executed. This state has executed just one person since the death penalty was reinstated. But many other cases are in the pipeline, and as the ultimate punishment approaches in each case, the questions of legality, certainty and morality must be more intense. This page opposes the death penalty on moral grounds. The House case, however, presents many more reasons to stop this execution. (source: Editorial, Tennessean) USA: Court weighs execution of 17-year-old murderer No one disputes that the murder of Shirley Crook was horrific. Awakened in the middle of the night by two young intruders, the Missouri woman was bound with duct tape, dragged out of her home and thrown -- alive and conscious -- off a railroad trestle into the river below. And no one is denying that Christopher Simmons did it along with a friend. He confessed a day after two fishermen found Crook's body floating in the water. A jury convicted him of murder, and a judge sentenced him to death. But should Simmons, who was then 17, pay the ultimate penalty? The Supreme Court is to take up that question Wednesday, when it hears arguments about whether the government can execute Simmons and others who are 16 or 17 when they kill. The issue has broad ramifications, not only for Simmons and the 71 other juvenile killers on death row, but because it again focuses the court on whether to curtail the use of the death penalty. "In recent years, the court has been concerned about the arbitrariness of the way the death penalty is imposed," said Steven Drizin, a law professor at Northwestern University who has urged the court to stop the execution of juvenile killers. "It's a court that's more open-minded to the problems that exist with death penalty practice." Last year, the court reversed the death sentence of a Maryland man because it concluded that his lawyers did not adequately defend him, saying effective legal representation is a key safeguard against injustice. 2 years ago, the court said the Constitution prohibits the execution of mentally retarded people. The court had ruled the year before that states could not execute killers who are younger than 16 when they commit murder but concluded that there was no national consensus against executing people who kill at age 16 or 17. Simmons' lawyers note that 31 jurisdictions and the federal government prohibit the execution of those who murder at 16 or 17. That's the same number that opposed executing the mentally retarded when the court 2 years ago found a consensus against that practice, Simmons' lawyers said in court papers. Texas, however, continues the practice most regularly, said Victor Streib, a law professor at Ohio Northern University who publishes a periodic report on the juvenile death penalty. Of the 22 juvenile killers executed in the past 3 decades, 13 were put to death in Texas. (source: Chicago Tribune) ********************* Teen brain too immature for execution When I started medical school more than 20 years ago, the dean met with us on the first day and told us, "Half of what we're going to teach you is wrong ... the problem is, we don't know which half." It turns out that the nature of brain development was one of those areas where our existing assumptions and knowledge were less than fully accurate. At that time, it was widely assumed and taught that brain development was essentially complete by the age of 3. Today, we realize this is far from the case. Recent research has demonstrated that the brain continues to change and mature throughout childhood and well into adolescence. We now understand that the teenage years, in particular, are a very active time of growth and development at the physical level of the brain. We have also learned that the primitive, or instinctual part of the brain develops first, followed by the parts of the brain that control reasoning and help us think before we act. Scientific research using functional magnetic resonance imaging has also demonstrated that adolescents actually use their brains differently than adults when solving problems. For example, they tend to rely more on instinctual structures, like the amygdala, and less on the more advanced areas, like the frontal lobes, which are associated with more goal-oriented and rational thinking. They also have a greater tendency to misunderstand social cues and overreact to stressful or uncertain situations. These findings suggest that from a biological perspective, an anxious adolescent with a gun in a gas station or a convenience store is significantly more likely to pull the trigger than an adult would be under the exact same circumstances. Based on the stage of their brain development, teenagers are more likely to act on impulse, and less likely to think twice, change their mind, or pause to consider the consequences and the finality of their actions. I am not suggesting that these issues in any way excuse violent criminal activities, but I do think the information is relevant and helpful as we try to understand the impact of biology and brain development on adolescent behavior and culpability. I also believe that adolescents who commit crimes, even serious crimes, require a different response than adults who commit comparable offenses. This week the U.S. Supreme Court will hear oral arguments in Roper v. Simmons to determine the constitutionality of the juvenile death penalty. The biology of adolescence is the primary reason why the American Medical Association, the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, the American Society for Adolescent Psychiatry and the American Academy of Psychiatry of the Law have filed an amicus brief in this case, in which they state their opposition to the execution of juvenile offenders. As a physician, I hope that the discussion of this case will be informed by a careful review of the recent research findings as well as our contemporary understanding of adolescent brain development and behavior. If it is, I believe the court will decide that it's time to end the practice of executing juvenile offenders. (source: David Fassler is a practicing child and adolescent psychiatrist and a clinical associate professor of psychiatry at the University of Vermont. He is also a trustee at large of the American Psychiatric Association; Knight Ridder Tribune) ****************** Death penalty in U.S. no longer child's play One day, we hope, the United States Supreme Court will rule that the death penalty is unconstitutional. In the meantime, the nation's highest court can take a step toward that end by ruling it unconstitutional to execute a juvenile. On Oct. 13, the court will hear arguments in Roper vs. Simmons, a challenge to the constitutionality of the death penalty for persons who committed crimes when they were 16 or 17 years old. The United States is one of only a handful of nations where such executions are still possible. In 1988, the court prohibited the execution of those whose crimes were committed at 15 or younger, but it ruled the next year that capital punishment for 16- and 17-year-old defendants does not constitute "cruel and unusual punishment." While there have been few executions for juvenile crimes in recent years, the United States has executed more juvenile offenders than the rest of the world combined since 1990. It is a shameful record. The United States does not allow a 16-year-old to buy cigarettes, buy a six-pack of beer, sit on a jury or vote on Election Day because we don't trust his capacity to make the right decision. That is an old argument, but it is sound. By any measure or definition, a 16-year-old is still a child. In July, 48 nations formally asked the U.S. Supreme Court to end the execution of juveniles. Briefs were also filed by 18 Nobel Peace Prize winners, 28 U.S. religious organizations, the American Bar Association and the nation's largest doctors' organization urging the nation's highest court to declare it unconstitutional. Few cases before the court have generated such a loud and uniform response. In 2002, the court decided by a 6-3 margin that the execution of the mentally retarded is cruel and unusual punishment, and thus unconstitutional. We hope that the justices would use the same logic on Oct. 13. 4 justices - John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter - issued an unusual statement last year calling the death penalty for juveniles "inconsistent with evolving standards of decency in a civilized society." One more makes a majority. Can 4 Supreme Court justices and 18 Nobel Peace Prize winners be wrong? (source: Editorial, The (Mass.)Republican) **************** Terror backlash puts death row progress at risk Serious doubts are being raised about the validity of the death penalty as part of a civilised society in the USA, civil rights activists claimed this weekend. But the war on terror could be used as an excuse to reverse progress made by campaigners against capital punishment, Amnesty International said last night. World Day Against the Death Penalty yesterday saw protesters focus on the USA, where 38 states can still punish serious crimes by death. But Amnesty International admitted that in an age of terrorist atrocity and execution of hostages, stamping out the death penalty altogether is going to prove difficult. Death by legal decree is a growth industry, with 3,487 inmates on American death rows as of April this year, and the USA's refusal to abolish the penalty seems to be the most famous example of a global trend. Democratic countries like India, Indonesia and the Philippines have started imposing the death penalty again, or have threatened to. One of liberated Iraq's first independent decisions was to restore capital punishment. Last year, 1,146 people are known to have been executed worldwide, most of them in China, Iran, the USA and Vietnam, Amnesty International says. Amnesty International says that death row is getting crowded. Irene Khan, Amnesty International's secretary-general, speaking at the Second World Congress against the Death Penalty, in Montreal, said, "The death penalty is the ultimate irreversible denial of human rights. It is often applied in a discriminatory manner, follows unfair trials, or is applied for political reasons. It is not a unique deterrent against crime, and is an irreversible error when there is miscarriage of justice." She said that a perceived terrorist threat and crueller world after September 11, 2001 should not be an excuse to throw human rights out the window. "Public opinion in many parts of the world still feels that the death penalty is needed to deter crime or terrorism. "We must build greater public support for abolition. These are tough times for human rights and we must be determined in our response to hold up the values in which we believe." Bianca Jagger, a goodwill ambassador for the Council of Europe, also made a direct appeal to the USA to stop executing prisoners. "The death penalty is biased," said Jagger, the ex-wife of Rolling Stones singer Mick Jagger. "In general, the people that are on death row today in America and in many parts of the world are the poor, minorities, so how can the death penalty be a just application of justice? "I want to say to all of you throughout the world there is no room for the death penalty in the 21st century." Emily Maw, who travelled from Wales to Louisiana to help prisoners on death row, said she was inspired to help after hearing about the state which has the highest incarceration rate in the United States with more than 36,000 prisoners. It also imposes the longest sentences, with 3,808 prisoners serving life without parole, and holds 92 death row inmates, awaiting lethal injection. But there have been more than 100 people exonerated and released from death rows in 25 states across the USA. Six of those came from Louisiana, and three of those were represented by Clive Stafford- Smith, from England. Ernest Willis was the most recent, released last Wednesday from Texas's death row after a state court ruled he likely did not start the fire that killed 2 young women in June 1986. He criticised President George Bush who, as Texas governor, allegedly ignored his innocence. Death row's controversial, chilling subject matter has proved material for film and literature over the years. Cell 2455 Death Row was an early and often overlooked example of the genre, chronicling the life of a convicted criminal on San Quentin's list of condemned men. Sister Helen Prejean, who also helps death row prisoners in new Orleans, wrote the book Dead Man Walking - made into perhaps the most famous death row film starring Susan Sarandon and Sean Penn in 1995. 1998's A Letter from Death Row starring Charlie and Michael Sheen provided a more modern take, with Bret Michaels from the band Poison as the star, writer, director, editor and composer. The Green Mile, made in 1999, features Tom Hanks as a prison guard who develops a friendship with one of the inmates. It is based on a novel by Stephen King, who has just secured a new writing partnership with fellow novelist Stewart O'Nan after O'Nan wrote a book called The Speed Queen. It was originally going to be called Dear Stephen King and features a main character on death row. (source: The (Wales) Western Mail)
