Jan. 8 FLORIDA: Judge allows state to seek death penalty The state can seek the death penalty for Roy Lee McDuffie in his double murder trial now that a judge has denied the defense attorney's motion that the death sentence is unconstitutional. "I understand what you're doing," Circuit Judge S. James Foxman told attorney Gerard Keating in a hearing Friday, "but I respectfully deny your motions." McDuffie is charged with shooting and stabbing Dawnielle Beauregard and Janice Schneider in 2002 during a robbery at the Deltona Dollar General store where they all worked. The trial is expected to begin Monday. Earlier speculation that the jury might tour the crime scene during the trial became moot Friday when Assistant State Attorney Raul Zambrano withdrew the motion to request the tour. Zambrano wouldn't comment on his reasons for the withdrawal. The attorneys came to agreement on several items such as witnesses and evidence to be presented at trial. Keating will allowed the prosecution to present several documents that show McDuffie was in debt at the time of the robbery and murders. Zambrano will allowed to the defense present information on other crimes in the area and a tape from a local McDonald's that shows McDuffie and his wife shortly after the murders. Jury selection begins Monday, and Foxman expressed concern about finding enough jurors who have not heard about the high-profile case. "We may be overwhelmed by people who know something about this case," he said. "It's a definite possibility." The only spectator in the courtroom Friday besides a reporter was Ted Teixeira, Schneider's longtime boyfriend. That will change Monday because the trial is expected to be covered heavily by local and national media. Court TV, a national cable channel, has been chosen as the television pool channel, meaning only its cameras will be allowed in the courtroom; all other broadcast media must get their feeds from Court TV. The trial is scheduled to begin with jury selection at 9 a.m. Monday at the Volusia County Courthouse in DeLand. (source: Daytona Beach News-Journal) ******************* Prosecutors won't seek death penalty in $1.10 Immokalee murder/robbery case 2 teenagers and two adults charged with robbing and killing a man in Immokalee for $1.10 won't face the death penalty if convicted, state prosecutors said Thursday. Marcos Antonio Garcia, 15, Brent Lee Falcon, 20, Joyrell Reed, 22, and Shane Harrell, 17, face first-degree murder and armed robbery charges in the Oct. 3, 2003, slaying of Miguel Mundo, 33, on a wooded path across from the Tex Mex store, 2307 Lake Trafford Road. The 4 were indicted on a 1st-degree murder charge, which is punishable by death or life imprisonment. However, Assistant State Attorney Mike Provost said state law prevents capital punishment for defendants younger than 17. Garcia and Harrell were 14 and 16, respectively, when the shooting occurred. Florida law and state Supreme Court rulings demand that sentences for co-defendants be proportional to each other. In this case, if the 2 most culpable in Mundo's death can't be executed if they're convicted, the 2 lesser defendants have to receive sentences that balance with what the other 2 would receive. "In this particular case, I'm not sure these guys (Falcon and Reed) even planned it. They just said they'd be lookouts, and it was the 2 juveniles who wanted to go out and rob the guy and shoot him," Provost said. Even without the death penalty as an issue for them, Garcia and Harrell will stand trial as adults and could face life in prison, the same as Falcon and Reed could, prosecutors said. Collier County sheriff's investigators say Mundo pleaded with his assailants not to hurt him just seconds before one shot him in the left temple. His body was discovered when deputies called to the area found him on a foot path. Several days later, investigators received a tip that an Immokalee High School student had information about the shooting. One suspect, Harrell, was bragging to a fellow student about shooting a man in the woods near the Tex Mex store. Harrell showed off the revolver, which he had tucked into the waistband of his pants, investigators said. Investigators say they learned the details of the robbery plan from a third teen who has not been charged. Garcia and Falcon were lookouts while Reed and Harrell confronted the victim, whom none of the four knew, investigators say. The juveniles were anxious to commit such a crime, court records say. Donald Day, Falcon's attorney, said his client's case clearly doesn't rise to the level of capital punishment. A sentence of death would certainly be overturned upon appeal if a judge imposed it. "I think the prosecutors are doing the right thing evaluating these cases beforehand and deciding not to go after the death penalty," Day said. His client is set for a Feb. 4 hearing on a defense request to suppress as evidence several statements Falcon made to investigators. What's contained in the statements isn't public record, and Day wouldn't describe what his client said that the lawyer wants to keep away from a jury. Reed is set for a hearing the same day on an issue surrounding his mental competency. His attorney, Robert Hines, asked the court to appoint experts to evaluate Reed to determine if he's mentally able to stand trial. Hines was unavailable Thursday for comment on the death penalty issue. All 4 co-defendants are held in Collier County jail on no bond and have pleaded innocent. (source: Naples Daily News) USA: On Law: A government of laws In the late 1980s another reporter and I were sitting in a Defense Ministry conference room in Moscow, listening to the deputy commander of Soviet ground forces talk about his hopes for his country. It was the time of glasnost and perestroika, and Western journalists were beginning to get unprecedented access to the Soviet military. Like most generals, this one had a large physical presence and plenty of charisma beneath his silver hair. Even more impressive, however, were the words he was saying. After more than 60 years of dictatorship, the old general said -- his eyes shining -- his country was striving to acquire, like the United States, "a government of laws rather than a government of men." I was much younger then and relatively stupid, but even I knew what it meant when a Soviet general starts paraphrasing William Penn and John Adams. The Russians, it seemed, wanted the freedom that's inherent when living under a government of laws. Under a government of laws, you can only lose your freedom if you violate the laws. You know the ground rules and you have rights that the government cannot take away. In contrast, a government of men too often rules on personal whim, and there is no safety or security for the people or their rights. Thinking back, I cringe at how smug I was during that conversation. I took it for granted that the Russians had a lot to learn from our society. The truth is, about every 50 years or so, here in the United States we mount an attack on own principle. I was certainly old enough to remember the "Impeach Earl Warren" billboards of my childhood, and George Wallace standing in the schoolhouse door, trying to keep black kids out of the University of Alabama. The lynching and other murders in the Deep South live in black-and-white newscasts in the memories of the baby boomers. Chief Justice Earl Warren was reviled by what seemed like half of the nation, and possibly more, for the Supreme Court decision in Brown vs. Board of Education, ending the myth of separate-but-equal treatment for the races in U.S. education and elsewhere. He was also despised for Miranda vs. Arizona, the landmark decision that forced police to tell suspects of their rights, including the right to a court-appointed attorney. Miranda was credited back then with helping to spark the rising crime rate in the United States. Today, Brown and Miranda are regarded as crystalline high points in the Supreme Court's case law. Even police officers now believe Miranda was the right decision and feel they at least know what they are supposed to do under its provisions. But the only reason Warren kept his job in the 1950s and 1960s is that back then more people in the United States, and more members of Congress, believed in the importance of judicial independence than believed in punishing judges for unpopular decisions. Now we are entering a new era of judicial criticism. Disregarding the attacks on "activist judges" before and during the presidential campaign, one of the earliest salvos came from the chairman of the House Judiciary Committee, who delivered a scathing lecture to the Judicial Conference of the United States behind closed doors last March. The Judiciary chairman, Rep. F. James Sensenbrenner, R-Wis., told the conference that judges should not object to being held individually accountable when they are singled out for giving lenient sentences to convicted criminals. The conference is the policymaking body of the U.S. courts and is led by Chief Justice William Rehnquist. It is made up of the chief appellate judge and one trial judge from each of the 12 geographic appeals court circuits, plus the chief judges of the Federal Circuit, which deals in intellectual property, and the Court of International Trade. Congress passed the PROTECT Act in 2003, "which among other things reformed the federal criminal laws concerning child abduction and child pornography," Sensenbrenner said. "Among the provisions of the bill were reforms of the federal sentencing guidelines; particularly, reforms correcting abuse by federal judges of downward departure authority." Judges use "downward departure" when they hand down lighter sentences than called for under sentencing guidelines. The act requires that data be kept on individual judges showing how often they use "downward departure." "Of course, I think we all can agree that impeachment ought not lie simply because Congress may disagree with a judge's 'judicial philosophy' or because Congress considers a judge's ruling 'unwise or out of keeping with the times,'" Sensenbrenner said. "That is a far cry from the suggestion that Congress lacks authority, or should not exercise it, to conduct appropriate oversight of the judicial branch, including individual judges." Sensenbrenner also attacked what he called the Supreme "Court's increased reliance on foreign laws or judicial proceedings in the interpretation of American constitutional and statutory law," and warned, "Article VI of the Constitution unambiguously states that the Constitution and federal statutes are the supreme law of the land. America's sovereignty may be imperiled by a jurisprudence predicated upon laws and judicial decisions unfound in our Constitution and unincorporated by the Congress. Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our founders and threatens to undermine the legitimacy of the American judicial process. I anticipate congressional examination of this issue in the coming months." The judiciary responds by saying at least 40 percent of "downward departures" are the result of prosecution plea bargain deals with defendants. As for "increased reliance on foreign law," the Supreme Court will hear argument on whether about 50 Mexican nationals on U.S. death rows should have their sentences revoked because they were not informed of the right to contact their country's consul after their arrests. Consular contact is guaranteed under the international Vienna Convention, not U.S. law, and if the Supreme Court rules for the Mexican inmates it will stir up a hornets' nest in Congress, with calls for new curbs on the judiciary. Rehnquist, in his annual report released by the Supreme Court on New Year's Day, added his powerful voice to the larger debate when he warned that anticipated efforts to remove "activist judges" because of unpopular decisions would endanger an independent judiciary. The chief justice was speaking mainly to fellow conservatives when he wrote about the increasing political pressures on the judiciary. Critics on the right have vehemently protested the decisions of "activist judges," particularly in cases involving social issues such as abortion or gay rights. "Criticism of judges has increased dramatically in recent years," Rehnquist wrote, "exacerbating in some respects the strained relationships between the Congress and the federal judiciary." Criticism is healthy, but the protests "have in the eyes of some taken a new turn in recent years. I spoke last year of my concern, and that of many federal judges, about aspects of the PROTECT Act that require the collection of information on an individual, judge-by-judge basis." Critics should remember historic principles that guide the relationship between the legislative and judicial branches, Rehnquist said. "First, Congress's authority to impeach and remove judges should not extend to decisions from the bench," Rehnquist said. That principle has prevailed throughout for more than 200 years. "A judge's judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence -- instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them." If judges cannot be removed from office for judicial decisions, how can the judicial branch be subject to the popular will? Rehnquist said judges are appointed and confirmed by elected officials who do indeed respond to popular will. "It is not a perfect system -- vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated," Rehnquist said. "But for over 200 years it has served our democracy well and ensured a commitment to the rule of law." The fact that Rehnquist made judicial independence one of the main themes of his year-end report is an indication of how seriously he takes the issue. Whether his admonitions are strong enough to help keep the country from sliding into another era of disrespect for the courts remains to be seen. (source: Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.) INDIANA: Kernan commutes man's death sentence----Governor reduces penalty for '78 murder, criticizes state's system of trying capital cases. Gov. Joe Kernan on Friday commuted the death sentence of a man convicted in the 1978 murder of a local minister during a robbery that netted $1. Kernan reduced Michael W. Daniels' punishment to life without parole for killing Allan Streett as he shoveled snow from his driveway. The action came three days before Kernan leaves office and marked just the second time in nearly 50 years that an Indiana governor has spared the life of a condemned killer. That commutation also was ordered by Kernan, in July. Kernan said his review of the Daniels case and that of Darnell Williams, convicted of the 1986 murders of a Gary couple, revealed weaknesses in Indiana's system for trying and reviewing death sentences. He called on state government to examine whether the sentencing system in death penalty cases is fair. "These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences," Kernan said in a written statement. A spokeswoman for Mitch Daniels, who takes office Monday, said the Republican governor-elect had no comment. Among the reasons Kernan gave for commuting Michael Daniels' sentence was his mental illness and lingering questions about whether he was the triggerman. Allan Streett's son, Tim, supported Kernan's decision. Tim Streett witnessed the killing of his father as a 15-year-old. Years later, Streett befriended Daniels' accomplice in the murder, Don C. Cox, helping him to get out of prison early. He also reached out to Daniels, writing a letter of forgiveness to him in prison. Streett said he does not believe the death penalty serves as a deterrent, as many claim. And he called the time that Daniels has spent on Death Row -- roughly 25 years -- "cruel and inhumane." Daniels, 46, was 19 at the time of the murder, which authorities said began as a robbery. When Allan Streett, a chaplain at Fort Benjamin Harrison, took a step backward, he was fatally shot. The robbers then grabbed Tim's wallet and stole the single dollar inside. Daniels and Cox were convicted of murder. A 3rd suspect, Kevin Edmonds, testified against the others and received a 10-year sentence. While his co-defendants have been out of prison for years, Daniels remained on death row. A string of appeals and court-ordered stays kept delaying his execution. In his decision, Kernan said that partly because of ineffective trial counsel, evidence that would have supported Daniels was never presented in court. The governor also took into account that Daniels' IQ has been measured at just above the level to be considered mentally retarded. He said Daniels, who is held at the Maximum Control Facility in Westville, was psychotic and has for some time been unable to assist in his own defense. A judge determined that Daniels' paranoia and delusions render him unable to make rational decisions. He is represented by a guardian. Kernan wrote that clemency may be appropriate where there is credible evidence suggesting a miscarriage of justice, or when there is a defect in the judicial process "that would erode our confidence in the integrity of those proceedings." "Daniels' case," the governor concluded, "presents those circumstances." Kernan noted that Daniels' 2 co-defendants in the 1978 crime have been released. "If Daniels was not, in fact, the person who shot Streett, he has been punished disproportionately," the governor wrote. Daniels' attorney, Eric Koselke, who did not represent Daniels at trial, praised Kernan's decision. "It took a lot of courage on the governor's part," he said. "He did the right thing despite what public opinion may be." Daniels' case was one of nine death penalty cases presented to Kernan for consideration of clemency. The governor declined to make a ruling in the others. (source: Indianapolis Star)
