Jan. 1 TEXAS: Court shows scorn for civil rights Texas is 1st in the nation in executions, with 336 since 1976. But to keep the state's machinery of death humming at top speed, the courts that oversee the process have been short-changing justice. The state's Court of Criminal Appeals and the federal 5th U.S. Circuit Court of Appeals have, at times, barely acknowledged the due process guarantees afforded capital defendants, leading an exasperated U.S. Supreme Court to take more appeals from Texas. The extremity of the problem was voiced recently by Justice Sandra Day O'Connor - not known as an opponent of the death penalty - who wrote in June that the 5th Circuit pays "lip service to principles" in death penalty rulings. Before the court now is the case of Thomas Miller-El, a black man convicted of murdering a clerk at a Holiday Inn in Dallas in 1985. The high court already has heard this case once. In 2003, in an 8-to-1 ruling, the court said that Miller-El appears to be the victim of the kind of racial bias in jury selection that was historically used as a regular tactic by Dallas prosecutors. It then returned the case to the 5th Circuit for a final judgment. But because the lower federal court ignored the findings of the Supreme Court and discounted the evidence of systematic exclusion, the Supreme Court has to wade into the case again. Dallas has a long, sorry history of excluding racial minorities from juries. At one time prosecutors were instructed in writing not to allow "Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated." While that particular manual was retired before Miller-El faced a jury in 1986, the biased practices persisted. Prosecutors in his case twice used a technique known as a jury shuffle to move potential black jurors down the list of prospects. And they used their peremptory challenges to remove 10 of 11 eligible black jurors. During oral arguments last month, Justice Stephen Breyer read essentially identical answers to prosecutors questions about the death penalty from 1 black and 1 white potential juror. Only the black juror was challenged. The 5th Circuit had dismissed these blatantly discriminatory acts, finding valid reasons for each peremptory strike. And in open defiance of the Supreme Court, the court virtually transcribed paragraphs from Justice Clarence Thomas' lone dissent without attribution and used them in its majority opinion to justify finding against Miller-El. The high court cannot allow this insubordination. It must forcefully respond. Perhaps most saddening is that there was a time when the 5th Circuit, headquartered in New Orleans, was considered a beacon of civil rights. Its judges ushered in a new era of legal equality and justice. Jurists such as Judge John Minor Wisdom and Judge Elbert Tuttle passionately enforced the rule of law, despite the deep institutional and public resistance to their desegregation rulings. They have been replaced with judges who display a hostility toward the due process rights in the Constitution. For the sake of justice, the Supreme Court will have to keep a careful eye on the 5th Circuit. (source: Editorial, St. Petersburg Times) ************************ Texas judge challenges death-penalty bid A judge hearing the case involving the nation's deadliest human-smuggling attempt said she will tell jurors that prosecutors ignored her order to show why they are seeking the death penalty for the man accused of driving and abandoning the tractor-trailer. In a ruling made public Thursday, U.S. District Judge Vanessa Gilmore said she will let Tyrone Williams' attorneys use the government's refusal of her order as evidence during the penalty phase if he is convicted on a death-penalty charge. The defense says Williams was singled out for the death penalty because he is black, a charge denied by the government. Prosecutors say information about why they want an execution is privileged. Williams, 33, is accused of driving the tractor-trailer that was abandoned in May 2003 at a truck stop near Victoria, about 100 miles southwest of Houston. Seventeen immigrants were found dead in the trailer, and two more died later. Jury selection is to begin Wednesday. (source: Seattle Times) ********************* Lawsuit demands DA's removal 44 people in San Augustine and Sabine counties are asking a judge to remove the district attorney. The lawsuit against District Attorney John C. Fisher was filed Wednesday afternoon, according to county officials and court records. Fisher has been the district attorney since January 2001 for the First Judicial District of Texas, which covers both Sabine and San Augustine counties. He was re-elected in this year's March primary. Fisher could not be reached for comment Wednesday. The petition states Fisher should be removed on the grounds he is "incompetent, or has engaged in incompetence or official misconduct" and cites 10 specific counts. The 24-page lawsuit alleges, in part, Fisher used less than 9 percent of the designated criminal trial days made available to him since he became district attorney; that he paid jail inmates to wash his private vehicle and they, in turn, bought drugs; that he illegally freed an inmate from the Sabine County Jail; and that he failed to file an annual budget or financial statement with either of the commissioners courts in his jurisdiction during his tenure. The suit further alleges Fisher occasionally refers to his enemies as the Anti-Christ and Satan, and perceives himself as being persecuted by "unholy demonic and satanic forces." Those "diatribes" - according to plaintiffs - are "irrational and delusional," suggesting Fisher is unfit for public office. Because several allegations involve either 273rd Judicial District Judge Charles Mitchell or District 1 Judge Joe Bob Golden, a letter in the petition asks both to recuse themselves and forward the petition to Administrative Judge Olen Underwood "so that a judge of his choosing may consider it and thereby help avoid any question of partiality." (source: The Beaumont Enterprise, Dec. 30) FLORIDA: Victim's husband plans to be at trial The husband of a victim in the Dollar General murders said Friday attempts to bar him from the courtroom during the upcoming trial are unfair. Ted Teixeira's wife, Janice Schneider, was 1 of 2 store clerks killed in the Deltona Dollar General store Oct. 25, 2002. Prosecutors are seeking the death penalty against Roy Lee McDuffie, a former store employee who they say killed the women after stealing $6,000. McDuffie's attorney filed a motion last month asking for Teixeira to be banned from the courtroom. According to court records and sheriff's reports, Teixeira admitted to bringing a gun to the courthouse and had plans to kill McDuffie. Teixeira did not deny the accusations Friday but would not say more about them. He said he has no intention of harming McDuffie. "They know I'm not going to try anything," Teixeira said. "It's ridiculous. I trust the justice system to take care of him." Circuit Judge S. James Foxman will rule on that motion and others, including a request from prosecutors for jurors to walk through the crime scene, on Thursday. Additional motions concerning the defense's objections to the death penalty are scheduled for Friday. Prosecutors say McDuffie, who had just been hired at the Dollar General store, used duct tape to tie up Schneider and co-worker Dawnielle Beauregard, 27, then shot them and robbed the store. During a sit-down interview Friday, Teixeira said he and the couple's 16-year-old son, Tom, do not support the death penalty. If McDuffie were to be convicted after his trial this month they would not want him sentenced to death, they said. Their opposition to the death penalty, Teixeira said, has nothing to do with sympathy for McDuffie or any doubts about the man's guilt. "It's not for his benefit; it's for my family," he said. "He could sit on death row for 20 years (if convicted) and put in appeal after appeal. I don't want my children to go through that." Teixeira said if the judge grants the motion to keep him out of the courtroom he will do everything he can to fight it and plans to be there every day of the trial. "This was my wife," he said. "I have to be there. For my children; for me." In the meantime, Teixeira said every time he is in the courtroom a Volusia County sheriff's deputy follows him around for security reasons. "They never leave my side," he said. "How could I do anything?" The trial, scheduled to start Jan. 10, has Teixeira nervous, he said, but also relieved. "Nothing will bring Janice back," he said, "but I think this will finally bring us some sort of closure." (source: Daytona Beach News-Journal) USA----book review LEADING THE FIGHT AGAINST CAPITAL PUNISHMENT-----Sister Helen Prejean - the inspiration for the film Dead Man Walking - challenges the abuses of the death penalty MO< THE DEATH OF INNOCENTS: An Eyewitness Account of Wrongful Executions, by Sister Helen Prejean. Random House, 310 pp., $25.95. Conservative Christians get a lot of attention these days, and rightly so. They control our federal government and command the allegiance of much of the population. They increasingly influence the political discourse on issues such as gay marriage, reproductive rights, evolution and even stem-cell research, all issues they regard as matters of "moral values." We don't hear nearly as much about Christians who are concerned with other moral questions, such as racial justice, poverty and the death penalty, but thanks to brave individuals like Sister Helen Prejean, this tradition - as old as Jesus himself - has not completely vanished from our landscape. Prejean has been played by Susan Sarandon in "Dead Man Walking," the movie based on the nun's bestselling book of the same title about her experience as the "spiritual adviser" to Patrick Sonnier, a man condemned to execution in Louisiana. Prejean's 1st book challenged the morality of executing anybody, even a person guilty of a horrendous crime: Sonnier had killed a teenage couple, David LeBlanc and Loretta Bourque, who were found lying face down in a field with bullet holes in the back of their heads. In her second book, "The Death of Innocents: An Eyewitness Account of Wrongful Executions," Prejean approaches a dimension of the issue likely to evoke far more public sympathy: the fact that some people are condemned to die for crimes they did not commit. "The Death of Innocents" eloquently chronicles two executions Prejean witnessed. In both cases, she believes the men were wrongly convicted and presents convincing evidence of their innocence. Dobie Gillis Williams - yes, he was named after a TV character - was an indigent, mildly retarded Louisiana man (several years after his execution, the Supreme Court declared it unconstitutional to execute the retarded). A black man accused of killing a white woman, Williams was convicted by an all-white jury, on DNA evidence that was extensively challenged by experts. The dead woman's husband, who was in the house at the time of her murder, was never even questioned as a suspect - highly unusual in any homicide case. A mild-mannered man, Williams, when asked for his last words, replied, "I just want to say I got no hard feelings for anybody." Joseph O'Dell, put to death by the state of Virginia, was convicted on the testimony of a jailhouse snitch, who later admitted he had lied. The victim's boyfriend, who stayed in a motel room with her the night of her murder, was never interviewed as a suspect. O'Dell had chosen to represent himself in his trial - almost always a tragic mistake in death penalty cases - and he was no match for his bloodthirsty prosecutors. Prejean movingly describes the romance between O'Dell and Lori Urs, an activist who becomes involved in his case; the two marry the day before his execution in a prison ceremony in which they are not even allowed to kiss. In addition to these men's stories, Prejean provides compelling evidence that the death penalty is systemically applied in a horrifyingly unjust manner, showing a shocking privileging of white lives over black lives: Not only are poor, black men far more likely to be sentenced to death than anybody else, a white person's death is far more likely to be avenged by a death sentence. (Since 1976, eight out of 10 of those executed for murder have been convicted of killing white victims.) Prejean also documents the extent to which incompetent lawyers - upon whom the poor largely depend - can be responsible for sending clients to their deaths. But she is not arguing for a better, less racist killing machine: She eloquently argues that these disparities show that the state should never be entrusted with taking human life, as governments, whenever they have had the right to kill citizens, have always chosen to kill the marginal and weak. Prejean wrote about O'Dell's case in a letter to the pope urging that the Vatican take a stronger position against capital punishment. One week later, the Catholic Church officially changed its Catechism to reflect "progress in doctrine" on the death penalty, an important step in evolving Catholic opposition to capital punishment, which has greatly strengthened the movement to abolish the death penalty in the United States. Prejean believes that even though most Americans say they support capital punishment, "there are promising signs that Americans are beginning to abandon the death penalty" in practice. She points to the declining number of executions in the nation as a whole. New York State, 6 years after its death penalty was reinstated in 1995, had only 6 people on death row. California has more than 600 but rarely executes anybody. Although, in 2003, 89 percent of all U.S. executions occurred in the South, the death penalty isn't flourishing in all red states: Colorado, thanks to a well-funded and highly capable public defender's office, has only one person on death row. Stories like those in Prejean's book - stories of innocents sentenced by the state to die - help fuel this public ambivalence: Evidence on wrongful convictions recently inspired the state of Illinois' moratorium on executions. Prejean's book will likely strengthen the anti-death penalty forces - known in this country as "abolitionists," reflecting the movement's sense that the death penalty is part of a long legacy of murderous racism in this country. It may also shine some light on those less visible Christians - those for whom morality doesn't mean policing the private behavior of individuals, but changing the unjust structures of society. The "quest for social justice," Prejean writes, "isn't only what 'political activists' must do, it's what Christians must do." Prejean also provides an inspiring example of personal responsibility: As a young nun, she writes, she used to pray to God to right wrongs in the world, but later she realized "that God had entrusted these tasks to me." (source: Liza Featherstone, Newsday) ******************* Rehnquist Resumes His Call for Judicial Independence Chief Justice William H. Rehnquist, delivering his 19th and most likely his last year-end report on the federal judiciary, returned on Friday to one of his longtime themes: a need to safeguard the independence of federal judges from intrusive Congressional oversight. Criticism of judges and their decisions "is as old as our Republic" and can be a healthy part of the balance of power between the branches, the chief justice said in remarks issued by the court's press office. But he added that criticism from Congress had "in the eyes of some taken a new turn in recent years" - an oblique locution that nonetheless left no doubt that he himself was among those discerning a new and disturbing twist to the attacks. Chief Justice Rehnquist mentioned a measure Congress passed in 2003 requiring special scrutiny of judges who issue sentences shorter than those called for by the federal sentencing guidelines. In his year-end report last year, the chief justice said this approach "could appear to be an unwarranted and ill-considered effort to intimidate individual judges." This year he took account of more recent developments: "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action." There have been calls in Congress to strip the federal courts of jurisdiction to hear challenges to the phrase "under God" in the Pledge of Allegiance, to the display of the Ten Commandments on government property and to the Defense of Marriage Act, a federal law that permits states to withhold recognition of same-sex marriages performed in other states. On another front, a resolution with dozens of sponsors was introduced in the House last spring criticizing the Supreme Court for citing foreign legal authority in several recent decisions. The court has mentioned foreign law in such rulings as those striking down capital punishment for the mentally retarded and invalidating the Texas criminal sodomy statute. The House measure, the Reaffirmation of American Independence Resolution, declared that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority." Justice Sandra Day O'Connor, addressing a judicial conference in California 6 months ago, called the resolution "very worrisome" and said the relationship between Congress and the federal courts was "more tense than at any time in my lifetime." Representative Tom Feeney, a Florida Republican who was one of the resolution's main sponsors, said when he introduced it that judges who based decisions on foreign precedents would risk the "ultimate remedy" of impeachment. Chief Justice Rehnquist said in his report on Friday that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment." "Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them." In 1992, the chief justice published a book, "Grand Inquests," in which he recounted the politically driven effort to remove Justice Samuel Chase from the bench 2 centuries ago. Though Chase was impeached by the House, the Senate's decision not to convict and remove him "represented a judgment that impeaching should not be used to remove a judge for conduct in the exercise of his judicial duties," Chief Justice Rehnquist said Friday. His 18-page year-end report made only glancing reference to his personal situation. Under aggressive treatment for a serious and usually fatal form of thyroid cancer, the 80-year-old chief justice has been absent from the court since late October. "On a personal note, I also want to thank all of those who have sent their good wishes for my speedy recovery," he said, without giving any indication of when he might return. He also offered "my best wishes to President Bush and Vice President Cheney and to the members of the 109th Congress." Although the chief justice has accepted an invitation from Mr. Bush to administer the oath of office on Inauguration Day, Jan. 20, it remains uncertain whether he will be able to carry out the duty. He did not attend the court's Christmas party 2 weeks ago. (source: New York Times, Dec. 31) NEW JERSEY: Prosecutors may seek death penalty in murder case Prosecutors may seek the death penalty against the man charged with killing Krista DiFrancesco, whose brutal murder in May 2003 shocked the region and terrified the residents of her Evesham neighborhood. The attorney for Christopher Kornberger, however, says the case might be resolved in a manner that would spare Kornberger's life. But decisions by the prosecutors and defense attorney won't be made until after the results of DNA tests in the case are received. Kornberger, 19, of Mill Road in Evesham is charged with murder in connection with the death of DiFrancesco, who was found with multiple stab wounds but alive on May 10, 2003, near her Kings Grant townhouse. DiFrancesco, 24, who lived with her husband and infant daughter, was returning home after spending an evening with friends at Prospector's Grille & Saloon on Route 38 in Mount Laurel when she was attacked. She died 2 days later. Burlington County Prosecutor Robert D. Bernardi said prosecutors would ask a grand jury to consider 2 aggravating factors that could make Kornberger eligible for the death penalty. Those factors are that DiFrancesco's death occurred in a heinous and deprived manner and that the murder occurred during the commission of a sexual assault, Bernardi said. Bernardi said the case originally was to be presented to a grand jury in November but was postponed because prosecutors are awaiting the results of DNA tests. A new grand jury date has not been scheduled, he said. Bernardi declined to comment on any evidence investigators gathered at the murder scene or on the confession Kornberger gave after his arrest in May in connection with the attempted murder and aggravated assault of another Evesham woman 6 months after DiFrancesco's murder. "We are absolutely considering our options with whether we are going to proceed as a capital case," Bernardi said. Michael Riley, Kornberger's lawyer, said he has not discussed the evidence in the DiFrancesco case with prosecutors, but that a plea offer might be tendered afterward. Riley said the results of any DNA tests in the case would play a role in whether Kornberger pleads guilty. "Once we do that, I expect we'll have some conversations (about reaching a plea agreement)," Riley said. "I'm sure they'll be an offer on the table. Clearly, those test results are going to have a substantial impact on the nature of the conversations I'm going to have with the prosecutor's office." Kornberger also has been charged with the Nov. 3, 2003, attack on Nancy Clark outside her home in the Santuary development in Evesham, as well as attacks on a 3rd Evesham woman and 2 women in Waterford Township, Camden County, last year. Bernardi has said the motive in all the attacks was sexual assault and that most of the targets were picked at random. Clark, 47, was stabbed multiple times but survived the attack. Detectives linked Kornberger to Clark's attack through a cigarette butt he discarded on the ground. Kornberger voluntarily provided a DNA sample to investigators in March. That sample matched DNA found on the cigarette butt and in material underneath Clark's fingernails, the prosecutor said. Kornberger is being held in Burlington County Jail in Mount Holly on $1.1 million bail. (source: Burlington County Times)
