Nov. 23
CALIFORNIA:
Ruling on death penalty in Peterson trial delayed
The process to determine whether Scott Peterson should die for killing his
pregnant wife Laci was put on hold Monday as defense lawyers appealed a
decision denying selection of a second jury in another county.
Amid word of possible juror misconduct, and news that a previous jury
foreman had been dismissed after asking to be excused, attorney Mark
Geragos said he needed more time to prepare for the process and to appeal
Judge Alfred Delucchi's rejection of his change-of-venue motion.
Citing the former jury foreman Gregory Jackson, Geragos said deliberations
took on an impassioned flair. That emotionally charged atmosphere, he
said, unfairly led to a guilty verdict and left one-time juror Frances
Gorman "physically disintegrated."
Delucchi removed both Gorman and Jackson from the jury.
In asking to be removed from the panel, Jackson told Delucchi in private
that he faced "an enormous amount of hostility" during deliberations and
that he was concerned for his safety, a transcript of the conversation
showed.
His ability to determine a just verdict, he said, had been compromised and
he would never have known whether he was giving "the community's verdict,
the popular verdict, the expected verdict, the verdict that might, I don't
know, produce the best book."
Juror No. 6, a Half Moon Bay, Calif., firefighter, told Delucchi, he was
uncertain why Jackson felt the way he did. He did point out, though, that
the dismissed foreman wanted to deliberate much more than the others and
took more time to do so.
Gorman told reporters after the verdict - against an order barring her
from doing so - that she agreed with the outcome, but was removed for
independently investigating the case. Jackson has not talked publicly and,
like Gorman, is under a court order not to do so.
Geragos asked last week to move the sentencing phase, which was scheduled
to begin Monday, and to pick a new jury to decide whether Peterson should
be executed for killing or sent to prison for life.
He pointed to the chaotic crowd of as many as 1,000 people amassed outside
the courthouse Nov. 12 to hear the verdict. Jurors were subjected to that
publicity, he said, when they were allowed to go home rather than face
continued sequestration.
"I thought it was something out of an old newsreel where there was a mob
outside the courthouse," Geragos told Delucchi. "I fully expected someone
to start building a gallows in some parking lot across the street."
Prosecutor David Harris said nothing indicated that jurors acted
inappropriately or had been influenced by the courthouse crowds.
"When you look specifically at the facts," Harris said, "there's a lot of
speculation, there's a lot of innuendo" in the defense argument.
The jurors had been sequestered since Nov. 3 as they deliberated whether
Peterson killed Laci and their unborn son Conner. The process stalled
several times, leading to further jury instructions and later the
dismissal of 2 jurors.
Jurors eventually found on Nov. 12 the former Modesto fertilizer salesman
guilty of two murder counts. They also affirmed a special circumstance
that forced the case into a penalty phase.
In denying the defense motion, Delucchi said trial publicity has been too
pervasive to escape, no matter where it might be moved.
"My wife knows somebody who just came back from Rome, Italy and they had
it on the radio in Rome, Italy not to mention Al-Jazeera and everywhere
else," Delucchi said. "I get letters from Mississippi. I get letters from
Florida. Everybody knows about this case."
"This is a problem without a solution," he said. "A change of venue is not
going to change anything."
Geragos said he planned to ask a higher court to review the ruling.
Legal analysts said it was unlikely the decision would be reexamined,
clearing the way for the penalty phase to begin Nov. 30.
"What Judge Delucchi is going to do is live with this jury," said San
Mateo, Calif., lawyer Paula Canny.
Geragos, she added, was simply laying the groundwork for a future appeal.
"This is an appellate lawyer's petri dish of issues," she said.
Former prosecutor James Hammer said the delay was a victory for the
defense because it stops the march toward a death sentence.
"Every day that goes by is a day where something could go wrong with a
juror," Hammer said. "But Judge Delucchi is probably correct that the best
shot we have is with these 12 people."
(source: Contra Costa Times)
*******************
Scott Peterson Judge Rules Out New Jury
A judge has ruled that the same jury that convicted Scott Peterson of
killing his pregnant wife and the fetus she was carrying also will
determine whether he lives or dies for his crimes.
Judge Alfred A. Delucchi on Monday denied defense motions for a new jury
and a move to another county, saying he knew of no place where potential
jurors have not heard of the case.
"Where could I send this case in the state of California that hasn't been
inundated with the media coverage?" Delucchi asked. "There's no place to
send this case.
"My wife knows somebody who just came back from Rome, Italy and they had
the verdict on the radio in Rome, Italy," the judge added. "I've never
seen anything like it before."
Defense lawyer Mark Geragos filed a motion Wednesday, seeking a new jury
in San Mateo County or a new jury somewhere else, such as Los Angeles
County.
He argued a new jury was needed after panelists were released from
sequestration and sent out into the community, where he said they have
been tainted by intense media coverage.
Prosecutor Dave Harris argued that there was "absolutely no showing" the
jury had been prejudiced. "We have on the record a fair and impartial jury
... just because they were released from being sequestered doesn't change
that," Harris told the judge.
Geragos told the judge he would appeal, hoping a higher court would find
Delucchi erred in his ruling and halt the penalty phase for further
review. Geragos said he would take the case to the state Supreme Court.
Delucchi also delayed the start of Monday's penalty phase until Nov. 30,
citing discovery issues between attorneys in exchanging evidence. The
panel is now set to determine whether to sentence Peterson to life in
prison or the death penalty.
Jurors on Nov. 12 found Peterson guilty on 1 count of 1st-degree murder
for the death of his wife, Laci, and 1 count of 2nd-degree murder for the
killing of her fetus.
(source: Associated Press)
OHIO:
Death Penalty Cases: A Lengthy Process
There has been one death penalty trial in Washington County since the
death penalty was reinstated in Ohio. Larry Lee was accused of killing his
estranged wife and a male friend in 1983 in Marietta, but the jury
couldn't reach a verdict on one of the 2 slayings.
"Everybody on the jury said that given the proper circumstances they would
be able to find for the death penalty," Spahr recalled. "Then, right in
the middle of the trial, one of the jurors decided she couldn't do that,
and therefore created a hung jury."
One thing that didn't play a role in jury selection was pre-trial
publicity.
"There were enough people form outlying parts of the county who had not
read the paper or not watched television," Spahr says, "that it wasn't
that tough to get a jury."
Spahr says the toughest part of a death penalty case doesn't involve the
trial itself, but what comes after the conviction.
"You go through the trial, the Court of Appeals, the Ohio Supreme Court,
through the federal system all the way to the (U.S.) Supreme Court. Then
there's the post-conviction where someone goes through your file looking
for something that isn't perfectly correct. They've just made it so
discouraging if you have a capital case."
But while there's seemingly been a large number of Ohio executions since
1999, it doesn't match the number of prisoners put to death in Texas and
the south.
The Ohio House of Representatives earlier this month approved a bill
allowing a committee to conduct a study of capital punishment, but it
isn't certain whether the State Senate will take up the measure before the
current session ends in December.
(source: WTAP News)
**********************
Legislative leaders just won't breathe life into study of death penalty
How come things work the way they do around the Statehouse? Take a look.
The Ohio House recently passed legislation calling for a study of capital
punishment in Ohio. Granted, the proposed study hitched a ride on another
bill; nevertheless, it's now properly before the Senate.
But Senate President Doug White said there's not enough time to give the
matter thorough consideration before the current lameduck session expires
next month.
White stepped on the study's oxygen hose and he's not taking his foot off,
despite the fact that the proposal has been around for years.
That's the prerogative of the Republican from Adams County. That's why
he's the president. He controls the agenda. And studying the death penalty
is not on his radar screen.
"I'm comfortable with where we are," he said of the 1981 law on capital
punishment. "We haven't abused it. There haven't been any glitches."
When lawmakers have to study whether to have a study, they're thinking too
hard. Especially when they regularly pass bills proclaiming December as
Trim a Hangnail Month and naming the J. Fred Muggs Highway in Paulding
County.
Rep. Shirley Smith initially proposed a study of the death penalty in
2000. Her proposal languished for a whole session and never went anywhere,
perhaps with good reason. She wanted to suspend the death penalty while
the study was being conducted.
The Cleveland Democrat reintroduced her proposal May 6, 2003, and it sat
in committee ever since. But on Nov. 10, Rep. Tom Brinkman, a Cincinnati
Republican, attached it - minus the moratorium on capital punishment - to
a related bill on sentencing violent sexual offenders. The amendment
passed, 64 -30.
That's when White put his foot down. He said the proposal emerged so
unexpectedly that the Senate needed more time. "We need to find out who's
behind it and what are the motives," he said.
Well, opponents of capital punishment are behind it, and their motive is
to see if the death penalty has been administered fairly since 1999, when
Gov. Bob Taft allowed the first execution in 36 years.
The legislature has, at most, three weeks left in its session. The House
had the proposal for 18 months and never did anything with it. "If this
was something that had come through our committees, fine," White said.
OK, we'll give him that point.
But White also objected to the proposal because it would "create
consternation and debate." Yes, the death penalty generally raises
emotions. "It could be controversial and thus interfere with the
priorities I've set for this session," he said.
We certainly wouldn't want debate on capital punishment to pre-empt some
of the bills that are under consideration in the House and Senate in these
remaining weeks: declaring the 4th week in September "Parents Week,"
creating Rock and Roll Hall of Fame license plates, and specifying how to
fold the state flag.
Smith pointed out that a "study" of the situation couldn't hurt anyone,
unless it found that the death penalty isn't being applied fairly; that it
affects a disproportionate number of poor and minority Ohioans.
"It's almost like we're hiding something," Smith said. "Like we don't want
something to come out."
Again, White wants senators to concentrate on tax reform, campaign-finance
reform and, oh, yes, the shopping list of capital projects that they can
take home, stick their thumbs proudly in their overall straps and say,
"Lookit what I got for us."
He's entitled to his priorities. But in this lame-duck session, there'll
be plenty of last-minute amendments that piggyback on other bills.
One of the criticisms of term limits is that lawmakers don't spend enough
time weighing the long-range issues affecting the state.
No one knows how the study of the death penalty would turn out, but isn't
it about time to evaluate it?
Years ago, lawmakers would give the Legislative Service Commission
assignments to do during session breaks. The commission would evaluate how
programs were working or study certain issues and report back. What better
time to call for such a study of the death penalty? Perhaps no changes are
needed. But if they are, a future legislature would be equipped to make
them.
But maybe it's easier just to hear no evil, see no evil and speak only
about the official state fiddling championship.
(source: The Dispatch, Nov. 22)
USA:
The President's Yes Man
In nominating Alberto Gonzales to be the next attorney general, President
Bush has selected a man with a long record of giving him the kind of legal
advice he wants. Unfortunately, that advice has not always been of the
highest professional or ethical caliber.
Gonzales is perhaps best known for a controversial January 2002 memorandum
to the president in which he argued that Geneva Convention proscriptions
on torture did not apply to Taliban and al Qaeda prisoners, and that the
conventions are, in fact, "obsolete."
This interpretation of international law, which many have linked to the
abuses at the Abu Ghraib prison, will no doubt be a focus of confirmation
hearings. Senators might also want to quiz Gonzales about a less
well-known June 1997 memo involving another treaty, the Vienna Convention
on Consular Relations. Written when Gonzales was counsel to then-Gov.
George W. Bush, the memo puts forward the novel view that because the
state of Texas was not a signatory to the Vienna Convention, it need not
abide by the treaty. Or, put another way, Texas is not bound by Article VI
of the Constitution, which states that U.S. treaties are "the supreme Law
of the Land."
That memo was written to dismiss State Department concerns about the
impending execution of a Mexican national whose rights under the
convention had clearly been violated by Texas police. And it is on the
subject of executions that Gonzales's most questionable legal writings may
be found.
Bush approved 152 executions during his six years as governor. For each of
the first 57, he made his judgment based on a 3- to 7-page "execution
summary" prepared by Gonzales and on an oral briefing that typically
lasted no more than 30 minutes that the chief counsel usually presented on
the day of the execution. In nearly all these cases, Gonzales was the only
person standing between the executioner and a governor who made it
abundantly clear he had little or no interest in granting clemency.
Where some might view this as a terrifying and formidable responsibility,
Gonzales's "confidential" memos suggest that he saw his role as more of an
expediter of his boss's preordained conclusion. Far from presenting an
evenhanded or nuanced discussion of the case for and against clemency,
Gonzales's execution summaries display a consistent prosecutorial bias.
Not once does he attach a clemency petition in which the condemned put
forward his or her best case for a reprieve. And Gonzales's summaries
repeatedly play down or fail to report the most important issues at hand:
claims of ineffective counsel, conflicts of interest, mitigating evidence,
evidence never presented to a jury, even evidence of innocence. Not
surprisingly, a disinterested observer relying solely on Gonzales's memos
would probably do exactly what Bush did: deny clemency in every single
case.
Consider the case of Terry Washington. Gonzales's 3-page summary
misleadingly suggests that there was doubt about the central issue in
Washington's plea for life: the fact that he was brain-damaged and
mentally retarded. But the state of Texas did not dispute the fact that
Washington was retarded. Gonzales doesn't inform Bush that Washington's
incompetent attorney never called a mental health expert to testify, never
advised the jury that his client was retarded, or that he had an IQ
between 58 and 69 and had been beaten with whips, water hoses, extension
cords, fan belts and wire hangers as a child. 9 hours after Gonzales's
briefing, Washington was executed. The Supreme Court has since found
executions of the mentally retarded to be cruel and unusual punishment.
In the case of David Wayne Stoker, there were enough red flags for a May
Day parade, yet Gonzales spotted none of them. For starters, a federal
appellate judge had concluded that the state's star witness was just as
likely the murderer as Stoker. Gonzales's 18-sentence summary also failed
to note that a key witness recanted after Stoker's conviction (explaining
that he'd been pressured by the prosecution to present perjured testimony)
and that the state's star witness received a financial reward for
fingering Stoker, had felony drug and weapons charges dropped and
therefore had an obvious motive for accusing Stoker. Gonzales also didn't
tell Bush that this witness and 2 police witnesses lied under oath at
trial, that the state's expert medical witness pleaded guilty to seven
felonies involving falsified evidence and that the state's psychiatric
witness, whose testimony was essential to securing a death sentence, never
even interviewed Stoker. The psychiatrist had since been expelled from the
American Psychiatric Association for repeatedly providing unethical
testimony in murder cases.
Senators might want to know how none of this public information made it
into Gonzales's report. And they might ask how Gonzales's office could be
prescient enough, a full week before Gonzales wrote his summary and
briefed the governor, to inform Stoker's attorney that there would be no
grant of clemency.
One could, of course, argue that the client calls the shots, and that
Gonzales delivered exactly what Bush wanted. But the 57 cases Gonzales
summarized were all matters of life or death. They included people such as
Stoker, who may have been innocent, and others such as Washington who had
something less than a fair trial. Given the stakes, one must ask whether a
fair-minded or ethical lawyer would simply do as he'd been told.
(source: Washington Post; Alan Berlow is a Washington-based writer who
often deals with death penalty issues. He adapted this column from a
longer piece in Atlantic Monthly)
**********************
'Who can decide who is the worst of the worst and who dies?'-----Sister
Helen Prejean and her friend and collaborator, the actor Susan Sarandon,
tell Alex Hannaford why they will never give up their mission to abolish
the death penalty
A few months ago, 65-year-old Sister Helen Prejean travelled from her home
in New Orleans to the Texas town of Huntsville, an hour north of Houston,
to pay her last respects to a man she had only known for a few years.
James Allridge, 41, had been sentenced to death in 1987 for the murder of
a convenience-store clerk in Fort Worth. He had spent 17 years on death
row.
"There is no touching, there are no hugs allowed there," she says.
"The thing about this contrived, artificial event is that it's not like
visiting someone in hospital. James Allridge was fully alive. The only
thing that told me he was about to die was my mind and my watch, ticking
away on my wrist."
Prejean first visited Allridge at Huntsville's redbrick prison, known as
the Walls on account of its imposing fortress-like surround, on August 6.
"He was the most gentle, insightful, loving man, and he really thought
that because he had changed so much he could challenge the clemency
process. He thought they wouldn't kill him." A film made by Allridge's
defence counsel, containing interviews with former prison guards who
testified that he was no longer a danger to society, was sent to the Texas
Board of Paroles and Pardons. They were unswayed, and voted 6-0 in favour
of proceeding with the execution.
Allridge was executed by lethal injection on August 26, and his story now
forms part of Prejean's second book, The Death of Innocents, published by
Random House next month. At Allridge's request, Prejean returned to
Huntsville to witness the execution. Before he died, she says, he spoke to
the witnesses gathered in the small room beyond the glass partition. "He
sounded like he was making a little speech to friends," Prejean says. "He
turned his eyes to his victim's family and said, 'I'm so sorry I have
destroyed your life.' Then he turned to Christa, a friend who had come
over from Switzerland, and said: 'To the moon and back. I came into this
world in love and I leave this world in love.' He was so poised."
Since beginning her ministry work in 1981, Prejean has witnessed 6
executions. Famously, she became a pen pal to Patrick Sonnier, the
convicted killer of two teenagers who was sentenced to die in the electric
chair in Louisiana (and who was executed in 1984). This experience, and
their relationship, were related in Prejean's 1993 book, Dead Man Walking,
subsequently made into a film by Tim Robbins and Susan Sarandon.
For the past 20 years, Prejean has continued to campaign against the death
penalty, most recently against the execution of minors. The supreme court
is currently hearing a case which will determine whether it is
unconstitutional to implement the death penalty against juveniles. If the
answer is yes, 75 could be freed from death row. (Between 1990 and 2003,
the US executed more juveniles than the rest of the world combined. In the
past four years, only 4 other countries have executed minors - Congo,
China, Iran and Pakistan.) Prejean also founded a victims' advocacy group,
Survive, based in New Orleans, which counsels death row inmates as well as
the families of murder victims.
Prejean remains a close friend of Sarandon's, her collaborator on Dead Man
Walking. When the actor first contacted her, more than a decade ago,
Prejean had barely heard of her. "I didn't even know what she looked like,
and she was suggesting turning my book into a mainstream film. It took her
nine months to convince Tim Robbins." Robbins has since adapted the film
for the stage, but before it reaches Broadway, Prejean has asked that the
script be made available to US schools; the 1st performance will be at a
high school in California.
It was Sarandon who first told Prejean about Allridge's case. "I stay with
her and Tim when I'm in New York," says Prejean. "Susan showed me a note
from James, and then in April this year she called me, saying he had been
given an execution date. She had been writing to him for 8 years. You get
into the habit of writing to inmates, and when this happens you can't
believe the state is actually going to kill them. And then she hit me with
the bombshell - James had asked if I could be with him when he died."
(Sarandon also visited Allridge shortly before his execution.)
The US occupies an uncomfortable position on the list of countries that
still implement the death penalty. In fact, the list reads like a roll
call of those nations America views - or once viewed - as hostile: North
Korea, Afghanistan, Iraq, Iran, Libya, Lebanon, Syria. Since 1976, when
executions resumed in the US after a 9-year moratorium, 69 people have
been released from death row after evidence of their innocence emerged.
In 1996 a poll showed that 78% of Americans supported the death penalty. A
2004 Gallup poll found that this figure has now dropped to 64% - the
lowest in 20 years. According to the Death Penalty Information Centre,
public support for execution drops to below 50% when voters are offered
alternative sentences such as life without parole.
"The disturbing thing," says Prejean, "is that although 38 states still
have the death penalty on their books, over 80% of executions happen in
the southern states where slavery was rife. In practice, the death penalty
has always been a southern thing. Overwhelmingly, when a black person
kills a white person, they are given the death penalty. There is no
consistency. Look at the Green River Killer [Gary Leon Ridgway, who last
year confessed to the murder of 48 women]. He didn't get sentenced to
death. Who can decide who is the worst of the worst and who dies?"
In the Death of Innocents, Prejean recounts the stories of two death-row
inmates she ministered to: Dobie Williams, a black man from Louisiana with
an IQ of 65, and Joseph O'Dell, a 54-year-old white man from Virginia.
After witnessing Williams's execution, Prejean wrote an open letter to the
Louisiana Coalition to Abolish the Death Penalty. "For the first time, I
believe, I befriended a truly innocent man on death row," she wrote. "A
38-year-old indigent black man, I believe, was railroaded to death, for
the death of a white victim in a small, racist southern town."
Prejean says that O'Dell asked for one evidentiary hearing and a DNA test
so that he could prove his innocence of charges of rape and murder. "This
was denied and after his death they destroyed the DNA so we will never
know," she says. "After the Pope got involved, the governor's office
received 10,000 faxes from the people of Italy. Then when Joseph died, the
mayor of Palermo made him an honorary citizen and his body was shipped
over to Italy and buried there."
Prejean is hopeful that the supreme court will rule against the continued
execution of minors; a judgment is expected next spring. "If you are under
18 in the US you can't buy alcohol or tobacco or serve in the military
and, ironically, you can't witness an execution. I think the Supreme Court
will rule it unconstitutional for the same reasons it ruled against
executing the mentally retarded: these people have no culpability for
their actions. The rest of the world is watching. The US and Somalia are
now the only countries that have not signed up to the Convention on the
Rights of the Child."
Speaking from her home in New York, Sarandon says she believes she will
see an end to the death penalty in her lifetime. "I have to believe that.
It is a very tough thing to participate in that system - for the guards,
the jurors, for everybody - because there are so many people involved. And
I think that the jury in James Allridge's case was affected. A number of
them asked that his sentence be commuted to life because they had not been
given all the information, such as his background, when sentencing him.
"The thing that frightens me about the state of our dear nation and our
world is this pre-emptive strike philosophy, and of violence as a means of
solving everything, whether it is directed against the individual or a
country. It is the elimination of all moderation. The most horrific thing
about the death penalty - besides the fact that it is arbitrary and
capricious and only affects those who have no money - is what it does to
society."
She says she has never seen the death penalty as an effective deterrent.
"It is archaic - there is a reason why it is outlawed everywhere else."
Sarandon spoke to Allridge over the phone on the afternoon of his
execution. "When his last meal came he was a little shocked. He had really
convinced himself there was a chance. I don't think he ate anything but
had a cigarette instead. I was terrified for him and felt so useless. One
of my kids said to me once, 'People don't die, because energy doesn't die,
so you'll always be here with me.' When I'm feeling positive, I agree
wholeheartedly. When I'm not, I'm not so sure."
The Death of Innocents: An Eyewitness Account of Wrongful Executions by
Sister Helen Prejean will be published by Random House in December.
(source: The (UK) Guardian, Nov. 22)
