Jan. 23 NORTH CAROLINA: A matter of life and death -- North Carolina is again expected to look at a 2-year moratorium on executions Alan Gell is pushing for the N.C. General Assembly to adopt a 2-year halt to executions to make sure that no more Alan Gells end up on death row. Gell, 30, sat on North Carolinas death row for nearly 6 years for a murder that a Bertie County jury said nearly a year ago that he didnt commit. "One of the reasons we need to have a moratorium is to have a time out while we look at other guys cases and see if there is anybody else like I was," Gell said. This year, the General Assembly is likely to consider a proposal to establish a 2-year moratorium on executions while the state conducts a study on the death penalty in North Carolina. Such a measure passed the state Senate in 2003 but died in the House. Gell was convicted in 1998 of the 1995 murder of Allen Ray Jenkins. After evidence that Gell was actually in jail on unrelated charges at the time of Jenkins death emerged, Gell was eventually given a new trial. In February 2004, he was acquitted. Gell, who was 19 when he was arrested for Jenkins murder, finally became a free man at age 29. Opponents of the moratorium, however, dont believe that a delay in executions is necessary. They say that enough safeguards are already in place and point to Gell's case as an example of the system working. "Even in the poster child, with Alan Gell, the system worked," said Onslow County District Attorney Dewey Hudson. "He didn't get the death penalty." Alamance County District Attorney Rob Johnson said that a moratorium would amount to unnecessarily delaying a process that already takes years to complete. "The process is slow enough already," Johnson said. State officials need to go ahead and "deal with" capital cases, including cases such as Gells, he said. "I think it's shameful allowing them to continue sitting there on death row." Gell disagrees that his case shows that the system works. Instead, he said it shows how messed up the system is. "I went through my appeals process," Gell said. First, his case went to the N.C. Supreme Court, then to federal courts. "The state Supreme Court first said that I had a fair trial and should be executed," Gell said. "I went through a federal court and they agreed." It was later that attorneys were able to use the exculpatory that Gell was in jail when Jenkins was killed, file a motion for appropriate relief and win a new trial. Stephen Dear, executive director of People of Faith Against the Death Penalty, said that Gells case shows that there are problems in capital cases in North Carolina. "More and more North Carolinians and legislators are aware that the death penalty system has serious flaws," Dear said. Dear said that a moratorium is simply a measure to improve the state's criminal justice system. "We're just trying to have done what would be done in any other public program where innocent life would be in danger, be it the space shuttle, or prescription drugs, or big airliners - where innocent people could die," Dear said. Johnson said that he believes that there may be an anti-death penalty current underlying the effort by many moratorium proponents. "I think the moratorium is just another step in trying to eliminate capital punishment," he said. Hudson, whose office has tried several capital cases in Onslow County, agreed. "This is nothing but another opportunity to try to stall the death penalty, the will of the people," Hudson said. Dear countered that such a moratorium, if it ever makes it into law, would automatically expire within 2 years. "The argument is specious," Dear said. Gaston County District Attorney Mike Lands said he believes that enough safeguards are already in place. He added that establishing a moratorium would amount to lawmakers sending mixed signals about the law. "My problem with the moratorium is that it would be the legislators saying that we have a law in North Carolina that provides for a death sentence, but we're taking the view that we dont want the law carried out," Lands said. Hudson agreed that there are a number of safeguards to prevent an innocent person from being executed built into the law. He pointed to some changes in recent years that should help: - law passed last year requiring police files to be open to defense attorneys. - law giving DAs some discretion in whether to seek the death penalty in a 1st-degree murder case. - law mandating raising the standards for defense attorneys in capital cases. Plus, Hudson said, a defendant still has his appeals process through the courts and can appeal to the governor for clemency. Gell said that those changes are good and should help going forward. But hes concerned about people who are already on death row and didnt have the benefit of these changes when their cases came to trial. "What North Carolina is doing is trying to prevent another Alan Gell, but theyre not looking back," he said. "You can't forget about those that did not have a fair trial and were not treated fairly." Lands countered that people on death row already have attorneys who are scrutinizing their cases to see if they got a fair trial. Aides to both Gov. Mike Easley and Attorney General Roy Cooper said that both were on record opposing a moratorium. "The governor supports the death penalty and does not see a need for a moratorium," said Cari Boyce, a spokeswoman for Easley. "The attorney general doesn't support one at this time," Noelle Talley said of Coopers opposition. However, supporters hope that theyll be able to push a moratorium through the General Assembly this year and have a bill on Easley's desk. If that happens, Boyce said that Easley would carefully review the bill and make a decision about whether to sign it, veto it or allow it to become law without his signature at that time. ********************* Death Row Special: By the Numbers and Who's Who By the numbers Heres the racial, age and gender breakdown of North Carolinas death row inmates White ---- male, 66; female, 2; total, 68 Black ---- male, 102; female, 1; total, 104 Indian ---- male, 6; female, 1; total, 7 Other ---- male, 4; female, 0; total, 4 Totals ---- male, 178; female, 4; total all, 182 Whos who Death row inmates at North Carolinas Central Prison who are linked to cases in Onslow and neighboring counties. NOTE: Carteret County has no inmates on death row. DOC stands for Department of Correction. Johnny W. Hyde DOC number - 0542024 Gender: Male Age: 32 Race: Indian Birth date: July 26, 1972 Convicted on: July 23, 1998 Primary offense: Murder first degree Admitted to Central Prison: July 23, 1998 County: Onslow Marcus D. Jones DOC number: 0217326 Gender: Male Age: 57 Race: White Birth date: Feb. 14, 1947 Convicted on: Nov. 9, 2000 Primary offense - Murder first degree Admitted to Central Prison: Nov. 9, 2000 County: Onslow Bryan Bell DOC number: 0592464 Gender: Male Age: 23 Race: Black Birth date: Feb. 11, 1981 Convicted on Aug. 24, 2001 Primary offense - murder first degree Admitted to Central Prison: Aug. 24, 2001 County: Convicted in Onslow. Offense occurred in Sampson. Clifford R. Miller DOC number: 0742512 Gender: Male Age: 27 Race:Asian Birth date July 30, 1977 Convicted on: Oct. 25, 2001 Primary offense: Murder first degree Admitted to Central Prison: Oct. 25, 2001 County: Onslow Terrance D. Campbell DOC number: 0064125 Gender: Male Age: 41 Race: Black Birth date: Sept. 16, 1963 Convicted on: March 27, 2002 Primary offense - Murder first degree Admitted to Central Prison on: March 28, 2002 County: Pender Levon B. Jones DOC number: 0217191 Gender: male Age: 46 Race: Black Birth date: Sept. 10, 1958 Convicted on: Nov. 20, 1993 Primary offense - Murder first degree Admitted to Central Prison on: Nov. 20, 1993 County: Duplin John W. Jones DOC number: 0216650 Gender: Male Age: 55 Race: Black Birth date: Jan. 24, 1949 Convicted on: Aug. 16, 1990 Primary offense - Murder first degree Admitted to Central Prison on: Aug. 16, 1990 County: Jones How some recent death row cases involving area inmates concluded. Bobby Lee Harris----Jacksonville Aug. 21, 1991: Sentenced to death in Onslow County Superior Court for murdering John Redd earlier that year. Dec. 4, 2000: Execution date set for Jan. 19, 2001 Jan. 17, 2001: Witnesses named for Harris execution Jan. 17, 2001: Execution stayed by Durham Superior Court Judge Wade Barber pending outcome of hearing set for Feb. 20 Jan. 18, 2001: Stay of execution upheld by North Carolina Supreme Court Oct. 22, 2001: Judge Wade Barber vacates Harris death sentence. The murder conviction is allowed to stand. Harris awaits re-sentencing. April 8, 2003: Harris sentenced to life in prison Robert Bacon----Jacksonville June 4, 1987: Sentenced to death Onslow County Superior Court for murdering Marine Corps Glennie Leroy Clark on Feb. 1, 1987. April 5, 2001: Execution date set for May 18, 2001 May 15, 2001: North Carolina Supreme Court vacates restraining order, allowing clemency hearing to proceed. May 17, 2001: North Carolina Supreme Court agrees to hear case brought by inmates Robert Bacon, Richard Cagle and Elton McLaughlin. Execution stayed pending hearing on June 7. May 14, 2001: Superior Court Judge David LaBarre issues temporary restraining order prohibiting Gov. Michael Easley from holding clemency hearing in the Bacon case. Aug. 2, 2001: Stay of execution dissolved Aug. 15, 2001: New execution set for Sept. 21, 2001 Sept. 18, 2001: Execution rescheduled for Oct. 5, 2001 at request of Gov. Mike Easley. Oct. 2, 2001: Gov. Mike Easley commutes Bacons sentence to life in prison without parole Ernest Basden----Duplin County April 9, 1993: Ernest Basden sentenced to death in Duplin Superior Court for the murder of Billy Carlyle White Dec. 30, 1994: North Carolina Supreme Court affirms Basdens death sentence Oct. 5, 2002: Supreme Court of the United States denies Basdens petition for a writ of certiorari to review the decision of the U.S. Fourth Circuit Court of Appeals which affirmed Basdens conviction and sentence of death. Nov. 5, 2002: Correction Secretary Theodis Beck sets Basdens execution date for Dec. 6, 2002 Dec. 6, 2002: Ernest Basden executed at 2 a.m.; pronounced dead at 2:19 a.m. A long time The last Onslow County man executed in North Carolina was Edward Lee "Kaiser" Mattocks who went to the gas chamber in May, 1939 for the Nov. 29, 1938 beating death of an elderly Bear Creek storeowner in an apparent robbery. (source for both: The Jacksonville Daily News) ****************** Death row INTERRUPTED-----Gell seeks death penalty moratorium Death row Alan Gell was condemned for a crime he didn't commit. He's free now, and there's something he has to do. Pacing and smoking, smoking and pacing, Alan Gell looks like a man awaiting his own execution. He's walking the floor outside the Bertie County government building, awaiting a chance to speak to the Bertie County commissioners. The agenda lists him as Mr. Alan Gell. That's new. Just months ago, he was a death-row inmate at Central Prison in Raleigh, just one more condemned man in a red jumpsuit, with prison tattoos and a tough-looking mug shot and too much time to think about his fate. Now he's free, exonerated of the crime that kept him behind bars for nine years, truly awaiting the executioner. He wants to be on his motorcycle speeding toward Myrtle Beach. Instead he's waiting for a 10-minute window in which he will ask these county commissioners to join the growing ranks of civic and religious leaders calling for a temporary halt to executions in North Carolina so the state can reconsider the fairness and effectiveness of the death penalty. Since a judge pronounced him free to go last February, he's spoken at dozens of these meetings. Yet he's still nervous. This place in the northeast corner of the state is his home, but that's not necessarily a good thing. One of the commissioners was sheriff when Gell was arrested for murdering Allen Ray Jenkins 9 years ago. Another lost a family member to murder. Plus, the man who's supposed to help him with his presentation just called from Williamston, 20 minutes away. He's running late, and Gell just might have to do this by himself. "Jeremy is supposed to explain the bill, the legal precedent and what other states have done," Gell says, throwing his hands up. "I'm just, you know, the compelling reason." So he smokes and paces, paces and smokes, pausing only to tuck his N.C. State golf shirt -- a personal gift from football coach Chuck Amato -- into his blue jeans. He could walk the streets of downtown Windsor. He could stroll across the parking lot. But he confines himself to a small space -- the size, say, of a prison cell. He was a nice kid, quite and polite and reasonably attentive in school, until his mother and stepfather moved from Maryland to tiny Lewiston, N.C., 16 years ago. Gell, 14 when his family relocated, soon fell in with a crowd of boys who spent their Friday nights drinking beer, riding motorcycles and smoking cigarettes. One night, as they sat in a cornfield next to his parents' house, a friend offered him a joint. He took a few puffs and fell in love. "I was like, 'Woo, this is the stuff for me,'" he said. "'I've got to get me more of this.'" He started smoking after school, then before school. He began selling pot to help pay for his habit. The profit margin wasn't high enough, so he shifted to selling cocaine as well. At the start of his sophomore year, he dropped out of school to sell and smoke his drugs. "It was a business decision," he says, laughing bitterly. "I felt like going to school or working 9 to 5 was for dummies who didn't know how to sell drugs." Driving through Bertie County, a flat landscape of trailers, peanut fields and vast emptiness, it's hard to imagine a booming drug trade. Yet Gell had plenty of customers. "Around here, you either work on a farm or you work at the chicken plant or you work at the sawmill. Anyplace where people work at very stressful jobs, especially if they're not getting paid a lot of money, you're going to have the drinking and you're going to have the drugs," he says. "This might seem like a nice little quiet town, but there are plenty of what you might call nefarious characters around." Gell's chosen career did not endear him to police. In the spring of 1995, he was in and out of jail. On April 2, 1995, police arrested him for stealing a tractor but released him that night. On April 4, he drove a truck belonging to a friend's father to Virginia and Maryland, looking for drugs. When he returned, police charged him with stealing the truck and put him in jail for two weeks. After they released him, he stole blank checks from his mother, cashed them and drove to Florida. In Bradenton, he tried to run out of a Pizza Hut without paying. Police arrested him again and shipped him back to North Carolina. That's where he was when investigators began asking, amid questions about stolen cars and unpaid pizza tabs, about a dead man named Allen Ray Jenkins. "I told them I didn't know what they were talking about," he says. "I don't think they believed me." Jenkins, a retired state truck driver, lived in a mobile home in Aulander, about 10 miles from Lewiston. He'd had his own troubles with the law -- Jenkins enjoyed entertaining teenage girls in his trailer, and in 1990 pleaded guilty to taking indecent liberties with a 14-year-old. On April 14, 1995, a friend found Jenkins' body in the bedroom of the trailer, shotgun pellets and maggots littering his corpse. Detectives began questioning young women who knew Jenkins and, soon enough, came to 15-year-old Crystal Morris. Morris knew Alan Gell through her best friend, who was dating him. Morris said Gell had confessed to the crime. Over the next few months, Morris would offer police 8 different and contradictory versions of what happened to Jenkins. In each, Gell was the killer, masterminding a plan to rob and murder Jenkins. The actions of Morris and her best friend varied between versions, but generally consisted of some role in the plan. Gell said he'd never met Jenkins, much less shot him twice in the chest. But the stars, if not the evidence, were aligned against him: The first and second lawyers assigned to his case each quit to go to work for the district attorney. His third was taking divinity school classes, and dropped his defense only after telling him, he says, that the state's case was airtight and he needed to get right with God. "She slid a Bible across the table to me and said, 'Son, you need to read this and read it good, because you're going to prison for an awfully long time,'" he said. He didn't believe it. Prosecutors had no physical evidence placing Gell in Jenkins' home or the shotgun in Gell's hand. They had no concrete proof that Jenkins died on April 3, the one day Gell was in state and out of jail to commit the crime. The foundation of their case was the testimony of two teenagers -- Morris and Gell's former girlfriend, Shanna Hall -- whose stories had wavered as much as they'd intersected. Both pleaded guilty to 2nd-degree murder and received 9-year sentences in exchange for testifying. Sitting in court, in his newly purchased suit and his freshly cut mullet, Gell could not imagine going to prison. "I didn't understand the justice system," he said. "I spent the trial looking at those people thinking, `Can you believe this? You can't be buying this.' and it turns out they were staring at me going, `I can't believe you did that. You little creep.'" The jury needed little more than an hour to convict him. They took 2 hours to sentence him to death. He was 22. "I was terrified. I thought I'd be up there in Raleigh with the worst of the worst, with monsters," he says. "But it didn't take me too long to figure out that everybody up there was human. None of us wanted to die." One truth of prison life is that North Carolina's death row inmates are actually among the best-behaved men and women in the state prison system. Unlike the main maximum-security population, they have incentive to behave: years of appeals and, eventually a commutation hearing before the governor. There's a reason to be a model citizen. That's what Gell became. He spent his days reading automotive magazines and books on construction and electrical engineering. He became an artist, sending home dozens of paintings and sketches. Most hang in his mother's house, including a charcoal sketch of Gell hugging his mother for the last time before he entered prison and a pastel portrait of Jesus Christ. He made friends in prison and watched them prepare to die. On nights of executions, inmates were locked in, and the lights went off early. But from their windows in the old death row, they could watch the ambulance come to carry the dead man away. They could also hear the protesters singing on their behalf just outside the prison's front gate. "When I went into prison, I probably was for the death penalty. I believed in the justice system to get it all right, and I believed in the state to do the right thing. It makes sense: You kill someone; you should die for it," he says. "But we're dealing with a system set up by humans. Humans make mistakes. Sometimes really big ones." In October 2000, 2 years after his conviction, the prosecution gave his appellate lawyers their entire file against him. In the boxes of paperwork and evidence, Gell's appellate lawyers found Crystal Morris' conflicting statements -- including a tape recording in which she tells a friend she needs to make up a story to tell police. They found interviews with 17 people who had seen Jenkins alive after he was supposed to have died. By law, state prosecutors are required to give defense lawyers any evidence they find that might help exonerate a defendant. Gell's prosecutors did not do that. Buoyed by this new information, Gell's legal team re-interviewed the scientists who had analyzed Jenkins' body and sent their evidence to researchers at the famed body farm at the University of Tennessee. The experts' conclusion: Jenkins could not have died on April 3, and he couldn't have died the way Crystal Morris described. Thus, Gell could not have killed him. On Dec. 9, 2002, Gell and his lawyers gathered in the same Bertie County courtroom where he was originally convicted. They wanted Superior Court Judge Cy Grant to schedule a hearing during which they could present the new evidence they'd unearthed. Grant did better than that: He threw out Gell's conviction, marking the 1st time in state history that a judge has overturned a jury's ruling simply on arguments from attorneys, without hearing from witnesses or experts. Attorney General Roy Cooper could have dropped the charges against Gell, but opted to try him again. Once more, state prosecutors called Crystal Morris and Shanna Hall to tell their stories. Once more, Gell looked at jurors and wondered, "You can't really believe I did this?" And once more, jurors took just a few hours to reach their decision. This time, they acquitted Gell. Cooper declared the case closed unless new evidence turns up. Pointedly, he did not make any move to cancel the state's plea agreement with Morris and Hall -- suggesting state prosecutors still believe their version of events. Gell was little more than an adolescent when he went in, and at 30, there's still a lot of boy to him. At first glance, he seems the strong, silent type. He tells his life story in a deep but faint monotone, and merely shakes his head when asked how he feels about the prosecutors who tried him and the women who testified against him. Yet he clings to his mother and sister like a boy who's been without affection for a long, long time, wrapping them in bear hugs, kissing their cheeks, holding their hands. When he first came home, he slept with a light and the television on. He began hyperventilating during his 1st post-prison shopping trip. Slowly, he's adjusting. He knows how to use his cell phone now, and is becoming computer literate. He's gained 20 pounds since his release, and rents as many movies as he can in an attempt to catch up on all he's missed. He recently moved into his own place. Still, he looks -- and acts -- younger than his years. He drives to the county commission meeting leaning back, extra-cool. A Boys II Men CD, soulful boy band music circa 1992, plays softly on the car stereo. He pulls into a convenience store saying he wants a Sprite. He's actually stopping in to see his girlfriend, who works behind the counter, and blushes when called on the ruse. He's tempted to leave all this, to escape from a collection of communities so small that his mother ran into Crystal Morris at Wal-Mart on her 1st weekend out of prison. (Hall is scheduled for release in February.) He says he's not tempted to fall back into his old lifestyle, the one that landed him in trouble with police to begin with. But just in case, he's staying busy, taking a full load of classes at a nearby community college -- a state senator helped get him enrolled -- and starting a nonprofit through which he'll talk to middle-school students about staying off drugs and choosing the right friends. Next month, he and his lawyer plan to start the process of asking Gov. Mike Easley to pardon him. If Easley agrees, Gell would receive $20,000 for every year spent in prison. "I could sit here and say, 'Oh, the state screwed me,'" he says. "But I let them. I put myself in that position." He's made another choice. He spent much of the spring and summer -- including his 30th birthday -- wandering the halls of the General Assembly, lobbying legislators to consider a two-year halt to executions in North Carolina. The N.C. Senate passed a moratorium during the 2003-04 session, but House Co-Speakers Jim Black and Richard Morgan refused to bring the legislation up for a vote. Moratorium opponents say it is simply a way for death-penalty abolitionists to chip away at capital punishment. Gell, who'll be back in Raleigh on behalf of the Center for Death Penalty Litigation when the General Assembly convenes this week, has strong feelings about capital punishment. He doesn't see the morality or the logic in the state killing people who've killed. But he doesn't talk much about that in his presentations. Instead, he prefers to tell town councils, church groups and college students about what he sees as inequities in the way the death penalty is applied. The 1st time he spoke in public, at a Wilmington gathering, he broke down crying, and many of the people in the audience wept right along with him. Outside the commissioners' meeting, he's still pacing. Jeremy, the other speaker, shows up just as the meeting begins. But he hasn't brought any of his notes. He needs Gell to lead their presentation. Gell rubs a hand through his dirty blond hair and goes outside for yet another Newport. When his turn to talk arrives, he keeps it brief. He does not talk about the years in prison, the evidence that was withheld from his original defense team, the state's weak witness list, the years he could have been going to college or getting married or simply sitting around his trailer, smoking dope and playing shoot-em-ups on his PlayStation. He sticks to the facts, sounding almost apologetic at taking the commissioners away from their discussions of zoning codes and a new sewer line. "All we want is for the legislature to vote on the moratorium," he says. "This isn't about getting rid of the death penalty. It's about making sure the system works. A moratorium can't take anyone off death row. All it does is stops the executions while we study the system." The board's leader asks if anyone wants to make the motion to consider the moratorium. Several commissioners look down at their laps. One stares at the ceiling. Gell sucks in his breath and stares at them. He does not blink. Finally, the commissioner who lost a family member to murder speaks up: "I guess I will." They need a second. Silence fills the meeting room. 10 seconds pass. 30. A full minute. Gell's eyebrows pop up as the former sheriff sighs and says he'll second the resolution. After that, it's easy. A 5-0 vote, in favor of temporarily halting executions in North Carolina. One more name on the roll call of towns and counties that will be given to the legislators when they return. This one, understandably, means a little more to the man who made it happen. But the commissioners can't tell that. As soon as they cast their votes, Gell is up and out the door, back in the parking lot for another cigarette. He's still pacing, but over a wider path now. He pulls his shirt free of his pants, and stretches his arms over his head. The gesture reveals 2 tattoos on his upper arms. The one on his right arm shows a dragon. The one on the left shows a wizard creating a 2nd dragon. They started off as prison tattoos, the tribal markings of a thug. Since his release, he's had them altered. Now they're symbols, part of a larger story unfolding in Gell's head and heart. The story involves a young man who makes some mistakes, and encounters some powerful people standing in the way of his dreams. Eventually, however, he slays the dragon, wins the girl and lives happily ever after. And free. Opposing Views PRO: Executions should be halted for 2 years while N.C. thoroughly reviews many concerns about how the death penalty is applied. CON: No halt needed to conduct a review; the moratorium is a smokescreen for throwing out the death penalty. Death Row Inmates 182 in N.C. 72 in S.C. (source: Charlotte Observer) NEW JERSEY: A victim cannot live while husband's killer will not die -- Widow seeks justice as state ponders panel on death penalty There are a few details Marilyn Flax remembers about the day 16 years ago when a man called to tell her he had kidnapped her husband and to demand $100,000 ransom. She remembers she was making steak and Caesar salad for dinner. She recalls being wired by the FBI and giving John Martini $25,000 at a diner parking lot. She remembers that Martini eluded authorities and shot and killed her husband. His body was found in car at the Garden State Plaza Mall in Paramus, a few miles from her Fair Lawn home. "Martini told me, 'If you ever call the police, one day somebody will come and get you,'" Flax remembers. "That still goes through my mind. I still get scared." Irving Flax was killed on Jan. 23, 1989. 16 years later, his killer, John Martini, 74, still sits on death row. For Flax's widow, the legal process that has kept Martini alive has been an agonizing ordeal, made more vexing last month when acting Gov. Richard Codey endorsed legislation that would impose a 2-year moratorium on the death penalty in New Jersey. The endorsement came the day after Martini lost his last legal appeal. "I want some justice," Flax said during a recent interview with The Star-Ledger, speaking publicly for the 1st time in several years. "I don't want Martini to take another breath. I don't want him to die of natural causes. My husband didn't." Flax's decision to speak out comes at time when the death penalty issue once again is in the public spotlight. In Connecticut, convicted murderer Michael Ross is scheduled to be executed Wednesday. In New Jersey, a bill is pending in the state Legislature to create a commission to study the fairness of the death penalty and impose a moratorium. New Jersey has not executed anyone in 41 years, and capital punishment is already on hold as the Department of Corrections devises new lethal injection rules. Hearings on those rules are scheduled for Feb. 4. Martini, now ailing with diabetes and using a wheelchair in prison, was sentenced to die in 1991. He is the 1st in line to be executed by lethal injection among the 12 inmates on New Jersey's death row. During his trial, he admitted that he shot Flax in the head three times because the businessman could "identify" him. Martini had come into contact with Flax through an acquaintance who worked in Flax's home. In 1995, Martini stunned his public defenders by announcing he wanted to drop all appeals and be put to death rather than go on eating bad prison food and living in "horrible" conditions. Flax said it was a ploy to buy time. "John Martini has always been a manipulator," Flax said. "He knew that he if played he wanted to die that the system would be delayed by appeals. That stalled him for at least 2 years." Then, in 1999, Martini was just weeks away from execution when a Catholic nun helped change his mind. He said he didn't really want to die. Since then, there have been a flurry of state and federal appeals. In December, the U.S. Supreme Court declined to hear his case. "The system wants to make sure that every possible benefit was given to this defendant before the ultimate penalty is imposed," said Marilyn Zdobinski, who prosecuted Martini in 1991. "This is not a case of any possible innocence," Zdobinski said. "We're not just going by the trial evidence but by his own words." While he was on death row, Martini also pleaded guilty to 2 murders in Arizona and was convicted of another murder in Philadelphia. In his most recent appeal, Martini argues that his previous lawyer made a mistake and that there was a prejudicial jury charge in the death penalty phase. "The appeal focuses on the jury instructions," said Stephen Kirsch, a public defender for the state who was assigned the case a year ago. He rejected the state's argument that Martini's statute of limitations for appeal was up 5 years after his conviction. "I would like to think that in the state of New Jersey, we're not going to execute a guy because he's late on an otherwise meritorious claim," Kirsch said. Bergen County Assistant Prosecutor Catherine Foddai, who will argue against the appeal before Superior Court Judge Bruce Gaeta on Feb. 1, said Martini's time is up. "Martini has had his conviction reviewed numerous times. We know this is not an innocent man on death row," Foddai said. Flax said she plans to send a letter to the governor asking him to meet with her before supporting a bill in the Legislature that would study the death penalty and impose the moratorium. "I really need the governor to step up to the plate and make a difference for me and make a difference for other crime victims who are in tremendous pain, " Flax said. During an interview last week in a small office at Superior Court in Hackensack, Flax broke down in tears as she spoke about her late husband. She wore the gold bracelet with dangling hearts that he gave her on their wedding day. When he died, she was 41 years old. He was 56. Flax said she finds solace through her work at an employment agency and comfort from her 3 children, from a prior marriage, whom Irving Flax helped her raise. "I was really so in love with my husband," Flax said. "He was my prince. If the system did what they should have for me and my late husband, I wouldn't have a heavy heart today. It would still be empty because Irv is not in my life, but it would be a hell of a lot better for me." Ironically, it is the type of pain that Flax and other victims endure that state Sen. Shirley Turner (D- Mercer) says prompted her to sponsor the bill to create a commission to study the death penalty. The commission would determine whether the death penalty is consistent with "evolving standards of decency," whether it is discriminatory and whether it is worth its cost. "The current system that we have is not serving the needs of the victims' families or the state," Turner said. "I don't think that the current statute -- where we claim to have a death penalty, yet we have someone on death row for as many years as Mr. Martini -- works. We have a death penalty on the books, but we haven't implemented it." Celeste Fitzgerald, founder of New Jerseyans for Alternatives to the Death Penalty, said not all relatives of murder victims support the death penalty and that it rarely ends up being a healing process. "This broken system is draining resources that could be spent on helping prosecutors get convictions, helping victims and getting more law enforcement out there," said Fitzgerald. A spokeswoman for Codey, Kelley Heck, said the governor's heart "does go out to the families affected by crimes" like Martini's. "But he does feel there is merit to studying the death penalty in New Jersey to make sure it is fairly applied." In the meantime, Flax said she will continue her quest for justice. "I want it for me. I want it for my husband," the widow said. "It's 16 years later, and I'm in the same place that I was 16 years ago, and it's not fair." (source: Star-Ledger)
