Oct. 22 TEXAS: Crime lab furor threatens execution cases -- Texans debate need for ban as Houston testing in cases elicits concern Edward Green lived 2 hours longer than expected. It wasn't because there was a serious possibility that the death-row inmate was innocent but because of growing evidence that Houston and Harris County have been guilty of running a shoddy justice system. The inmate, who confessed to killing an elderly couple he robbed in 1992, was supposed to be executed at 6 p.m. Oct. 5. But the U.S. Supreme Court's consideration of his appeal, citing problems at the Houston crime lab, delayed the lethal injection until after 8 p.m.The tardy proceedings that night, some say, suggest that endless bad news out of Harris County poses a serious threat to the death penalty in Texas. "I'm worried about the courts," said state Sen. John Whitmire, D-Houston, chairman of the Senate Committee on Criminal Justice and a capital punishment supporter. "But I'm also worried what Texans think of the Texas criminal justice system." The U.S. Supreme Court halted capital punishment once before because of mounting evidence of unfairness in several states. The justices overturned old laws, old ways of doing things and imposed new standards, resulting in a nationwide moratorium from 1967 to 1977. ** HOUSTON CRIME LAB PROBLEMS As of Oct. 15, 2004 1,342 -- Police cases reviewed for DNA problems 395 -- Cases selected for DNA retesting 324 -- Retests, reviews finished 292 -- Affirmed by retesting 26 -- Inadequate DNA to test, other problems 2 -- Convictions overturned since controversy began* ON DEATH ROW 17 -- Death row cases retested** 10 -- Death row cases affirmed 4 -- Death row cases results not back 3 -- Death row cases that may be unconfirmable RETESTING Retest labs: Identigene of Houston, Orchid Celmark of Dallas, Reliagene of New Orleans Cost: $2 million * One reversal because of blood test error, not DNA ** Among the 395 cases selected for DNA retesting (source: Dallas Morning News research) ** Polls show Texans still support the death penalty by a wide margin, although a big majority also believes that innocent people have been executed. Mr. Whitmire has said the best way to maintain the confidence of the courts and the public is to impose a moratorium on Harris County executions pending resolution of the Houston lab problems. "If we feel strongly about it, we better do it right, or we might lose it," he said. Gov. Rick Perry has rejected the idea, saying careful review of individual cases is the appropriate response. Harris County District Attorney Chuck Rosenthal agrees with the governor. 3 more executions have occurred since Mr. Green's. A moratorium is unneeded, Mr. Rosenthal said. "Many of the cases ... have absolutely no HPD [Houston police] forensic laboratory involvement." The district attorney also downplayed the risk of disenchantment with the death penalty. "I think it is a mistake to paint with a broad brush all death penalty cases because they're all unique," he said. The controversy began in late 2002 amid news reports of errors by the lab's DNA section. The Houston Police Department halted DNA work and identified more than 1,300 cases for review. From that list, the Harris County district attorney's office pulled 395 for DNA retesting, including 17 involving people on death row. Retest results are incomplete, but so far only 2 noncapital cases have been reversed since the review began. A number of other flaws have been found in the lab's work, however. The Police Department's credibility sustained another blow in August. Officials announced that 280 boxes of mislabeled evidence from the lab were found in storage. The discovery involved more than 8,000 case files. It set off a new effort, expected to take months, to identify and catalog the materials. That disclosure was the last straw for Mr. Whitmire and Houston Police Chief Harold Hurtt, who issued calls for a death-penalty moratorium. It also shook other supporters of a get-tough approach to criminal justice. "To see that mountain of evidence that was largely uncataloged and not stored properly was very upsetting to me," said state Sen. Tommy Williams, R-The Woodlands, vice chairman of the Senate Criminal Justice Committee. He has not called for a moratorium but now says he's not opposed to one. The discovery of 280 mislabeled boxes sent anti-death penalty lawyers into a frenzy, with a petition filed on behalf of Mr. Green calling for suspension of Harris County executions. They filed suit in federal court Thursday demanding access to the boxes. "There might be evidence in some of these rediscovered files that is relevant," said David Dow, a University of Houston law professor and director of the Texas Innocence Project. The Supreme Court's 2-hour delay of the Green execution may indicate growing high-court interest in the problem, some analysts say. "Each of these disclosures alone is very disturbing," said Jim Marcus, director of the Texas Defender Service, which represents indigent death row inmates. "But taken together, it really calls into question the integrity of the criminal justice system in Houston." Meanwhile, efforts to work through the controversy continue in Houston. Retesting of questioned cases continues, and Chief Hurtt is stepping up the push to restore the lab's credibility. Most of the retesting of the original batch of cases is done, and three-fourths of the time, private labs have supported the police lab's DNA findings the 1st time through. But problems of varying severity were discovered in 7 % of all cases, with the remainder still awaiting final determination. "Most of the time they got it right," Assistant District Attorney Marie Munier said, arguing that the results are a tribute to the "robustness" of the technology even when tests are improperly performed. Questions about the lab have extended beyond the DNA section. 1 of 2 reversed cases involved blood testing. And two weeks ago, a Houston federal judge ruled that another Harris County convict must be released or given a new trial in a capital case involving ballistics evidence. Police response to the crime lab's problems - which have included contamination due to a leaky roof, unqualified personnel and failure to follow procedures - was initially slow. Chief Hurtt, who took over the Police Department in March, said he plans to hire an outside expert to lay the controversy to rest. "We've made great progress," said Capt. David Watkins, in charge of coordinating efforts. But it will take months more to survey the newly discovered boxes and complete the recovery. "We're looking at a year," he said. (source: Dallas Morning News) IOWA----federal death penalty trial Jury begins death penalty discussions in Honken case They filed out of the courtroom, ready to begin making what attorneys acknowledged was an "important and unimaginable" decision. Should Dustin Honken, already found guilty of murdering 5 people, including 2 young girls, be sentenced to death? For nearly an hour before they headed to their deliberations at 11:18 a.m. Thursday, the 10 women and 2 men heard the impassioned pleas of the prosecution and the defense, the arguments why the 35-year-old Britt, Iowa, native deserved to live or die. By 3 p.m., the jury remained undecided and left. Deliberations will resume at 8:30 a.m. Monday in Iowa's 1st death penalty case in more than 40 years. Iowa does not have the death penalty, but the sentence is a possibility because the case is being tried in federal court. In addition to considering the evidence from the murders, jurors contemplating the death penalty must weigh factors such as the impact of the deaths on the victims' families against the affect of Honken's execution on his family. During his closing arguments, Assistant U.S. Attorney C.J. Williams repeatedly mentioned the deaths of Kandace and Amber Duncan, ages 10 and 6, respectively. Williams recounted the terror the girls must have felt watching their mother, Lori Duncan, and Greg Nicholson being bound and gagged after Honken and his girlfriend entered their home on July 25, 1993, then drove them out into the country and shot them. Trial testimony showed Honken 1st led Nicholson and Duncan from the car to a wooded area and shot them, then returned for the girls. Did the girls try to run? Did they see their dead mother? No one will ever know, Williams said. But certainly, he said, one of the girls had to watch her sister die. "To murder children is an unspeakable, unholy, unforgivable act," Williams said, his voice rising. "If these facts don't call for the death penalty, then no case does. If not now, when?" Defense attorney Leon Spies urged jurors to opt for sentencing Honken to life in prison without parole. Executing Honken will not bring the victims back to life and will leave three children without a father who loves them, Spies said. "The vengeance and pain and hurt we all feel for the families of the victims ... is real pain. In balancing that pain, that sadness, you also have to look at the pain of Dustin Honken's family," Spies said in his calm, quiet voice. It wasn't Honken's fault he grew up the son of an alcoholic, uncaring father who bragged about breaking the law before he robbed 2 banks, Spies said. Honken grew up to be a loving father who continues to dote on his two biological children and a former girlfriend's boy Honken considers his son. Executing Honken will only cause more pain. "Dustin Honken's life is a life of real meaning to his children. His life has real meaning to his family," Spies said. "There is worth in Dustin Honken. Can you truly say in looking at Dustin Honken that there is no hope. Can you truly say now or in the future there is not reason for Dustin Honken to live." Williams countered in his rebuttal that the circumstances of the crime "do not call for any mercy, any compassion. They call for justice." "Where were (Honken's) children in his mind when he put a gun to little Amber's head and pulled the trigger?" Williams said. Last Thursday, the jury found Honken guilty of killing Mason City, Iowa, residents Terry DeGeus, 32; Nicholson, 34, his girlfriend Duncan, 31 and her daughters. DeGeus and Nicholson were cooperating with authorities in a 1993 drug case against Honken. It was dismissed after their disappearances. Honken is currently serving a 27-years prison sentence for a 1997 drug conviction. DeGeus disappeared on Nov. 5, 1993, after agreeing to meet Johnson in a remote field near Mason City. There, Honken shot him at least 3 times and beat him with a baseball bat until it was dented. The 5 bodies remained hidden until 2000, when Johnson was tricked by another inmate into drawing maps to the two graves. Johnson, 40, who also faces the death penalty, is scheduled to stand trial in March. (source: Sioux City Journal) NORTH CAROLINA: Prosecutors seek death penalty in killing of editor Prosecutors will seek the death penalty against a man accused of killing a newspaper copy editor in 1984, a crime that sent another man to prison for 18 years. Willard E. Brown rejected two different plea offers that would have required him to plead guilty to first-degree murder, rape, robbery and kidnapping in the attack on Deborah Sykes, who worked for The Sentinel, an afternoon newspaper once published in Winston-Salem. Forsyth County Assistant District Attorney Eric Saunders said both offers would have resulted in Brown receiving a sentence of life in prison, plus an additional number of years. Some of the charges would have been consolidated for sentencing under the offers. Another man, Darryl Hunt, spent 18 years in prison for Sykes' murder. Hunt was exonerated in February after DNA testing linked Brown to the crime, and police said that Brown confessed to committing the crimes and acting alone. Saunders said he considered Brown's confession in deciding to make a plea offer. In a February indictment against Brown on the murder charge, Saunders included one of the aggravating factors under which state law allows the prosecution to ask for the death penalty - that the crime was heinous and atrocious. Prosecutors can still offer Brown a plea at any point before a jury ends deliberations at trial. Saunders said he doesn't think Brown's case will go to trial for at least a year. (sources: Associated Press & Winston-Salem Journal) MARYLAND: Death penalty review possible----Judge sets execution date then issues stay for black man; Defense plans racial bias appeal; UM study to be used to contest Md. capital punishment law For the 1st time since a study suggested that race plays a role in the state's application of the death penalty, a black man has been scheduled for execution - raising the prospect that a court may soon review the contentious issue. Yesterday morning, at the request of prosecutors, a Prince George's County judge signed a death warrant for Heath William Burch, scheduling his execution for the week of Dec. 6. But the judge also granted a defense request for a stay of execution while Burch's attorneys mount another round of legal challenges, which they said would incorporate the University of Maryland death penalty study that was released in January last year. Prosecutors did not oppose the request. "We agreed with them that they should have a chance to raise the issues they want," Prince George's County State's Attorney Glenn Ivey said in an interview yesterday afternoon, adding that he favors a moratorium on executions. The last Prince George's County man to be executed was Lott Glover, who was hanged for murder more than 50 years ago. Burch, 35, was convicted in 1996 of stabbing an elderly Capitol Heights couple with a pair of scissors. Robert and Cleo Davis, neighbors he had known for years, were killed during the drug-fueled burglary. Burch has exhausted his mandated appeals and will not contest his guilt, said William Kanwisher, one of Burch's lawyers. Instead, Burch's legal team will focus on such issues as the racial disparities cited by the University of Maryland study, Kanwisher said. Professor Raymond Paternoster found that defendants who kill white people are more likely to be charged with capital murder and sentenced to death than killers whose victims are not white. The study found that blacks who kill whites are 2 1/2 times more likely to be sentenced to death than whites who kill whites. Paternoster also noted a geographic disparity in how death sentences are handed down, saying that defendants in Baltimore County are much more likely to face the death penalty than defendants in other jurisdictions. As the study was under way, then-Gov. Parris N. Glendening imposed a moratorium on executions. That moratorium was effectively lifted when Gov. Robert L. Ehrlich Jr. took office last year. Five of the seven men on Maryland's death row, housed in a high-security Baltimore prison known as "Supermax," are black men who killed white people. Burch and 2 others who fit that profile are contesting their sentences based in part on Paternoster's study. John Booth, the only man on death row convicted in Baltimore, has filed legal papers that, in part, raise the issue of racial bias. Baltimore Circuit Court is scheduled to hear the issue next summer, Booth's lawyer said. Booth was convicted of fatally stabbing Irvin S. Bronstein, 78, and his wife, Rose Bronstein, 75, in their home near Pimlico in May 1983. Booth's attorney, Michael Millemann, said he will argue next summer that the death penalty process is "racially biased from the beginning to the end." "An overriding question is whether the death penalty in Maryland is administered in a racially discriminatory fashion," Millemann said. "It's hard to imagine a more important question." Last Friday, death row inmate Wesley Eugene Baker filed an appeal on similar grounds in Harford County, where he was sentenced to die in 1992. Baker was convicted of fatally shooting Jane Tyson, 49, in front of her grandchildren during a robbery in Catonsville. In the 36-page appeal, Baker's lawyers asked that their client's death sentence be vacated in light of the University of Maryland study on the grounds that "evidence now available suffices to establish that Maryland's death law, in its operation, creates a substantial risk - indeed, a probability - that the irrelevant factor of race is in fact very relevant." Consequently, the lawyers wrote, Baker's sentence "was imposed under the influence of cognizable racial prejudice." With an execution date - though one that is stayed - scheduled in Burch's case, his lawyers have begun working on his version of a racial disparity-based appeal. Judge Steven I. Platt, who set the execution date and granted the request for a stay, ordered that Burch's legal team file its motions by Nov. 22. "Racial disparity is obviously a significant issue. It was enough of an issue that the study was commissioned in the first place," Kanwisher said. "The question is whether it rises to the level that one can label as racist. That's what we're going to attempt to answer." The lawyers for all three men are alleging violations of the Maryland Declaration of Rights, which guarantees equal protection without regard to race. But they're also claiming what they believe to be violations of the U.S. Constitution. Should appeals based on the University of Maryland study reach the U.S. Supreme Court, it would not be the first time the nation's highest court weighed the question of whether race influences the application of the death penalty. In a case that helped shape death penalty law, the justices heard in 1987 from Warren McCleskey, a death row inmate in Georgia who cited a study similar to the one completed at the University of Maryland. But the Supreme Court, by a 5-4 vote, rejected McCleskey's appeal, ruling that a defendant must prove that racial prejudice influenced the judge, prosecutor or jury in his case. The most recent execution in Maryland was of Steven Howard Oken, a white man whose victims were also white. His lawyer, Fred Warren Bennett, referred to the Paternoster study in one of the motions he filed in the weeks before Oken's execution June 17, but a Baltimore County Circuit Court judge dismissed it without a hearing and the Court of Appeals refused to take up the matter. Bennett said that because Burch is black, he might stand a better chance of getting an audience with a judge on the issue of racial disparity. (source: Baltimore Sun)
