Feb. 2 MASSACHUSETTS: Death penalty bill deserves support Though a recent Amnesty International poll indicates most Democratic legislators from the North of Boston region are still opposed to it, House Minority Leader Bradley H. Jones' proposal to reinstate the death penalty in Massachusetts deserves serious consideration. Like Gov. Mitt Romney previously, Jones is proposing that the pain of execution be reserved for those found guilty beyond any doubt of committing the most heinous crimes. Modern technology such as DNA screening can establish guilt to the point of it being an almost absolute certainty. And there are certain crimes - the murder of a judge or police officer, terrorist acts, homicides involving torture or sexual assault - whose perpetrators have forfeited their right to live. New Hampshire has the death penalty, but it has not had an execution since 1939. Similarly, we expect the penalty would be rarely employed in the Bay State. But it should be available to prosecutors here as it is to those at the federal level and in 37 other states. (source: Cloucester Daily Times) CONNECTICUT: Judge's Teleconference Has Experts Talking--Chatigny's Chastising Of Ross' Attorney Draws Both Outrage And Applause In Legal Circles Chief U.S. District Judge Robert N. Chatigny's intercession against the execution of Michael Ross last week is creating a stir in national legal circles, with experts divided on whether it was an extraordinary but justifiable judicial intervention or outrageous meddling by a powerful judge driven by a personal bias. The judge's harangue of Ross' lawyer, T.R. Paulding, delivered during a teleconference Friday, is widely viewed as having resulted in the postponement of the serial killer's execution. In impassioned and sometimes intemperate terms, the judge assailed Paulding's representation of Ross, who had elected to forgo appeals of his death sentence, ostensibly to spare victims' families further anguish. Chatigny told Paulding, "I'll have your law license," if it was later found that Ross' mental condition had been impaired by his years on death row. "It is outrageous," said Robert Blecker, who has done extensive research on death row conditions and is on the criminal law faculty at New York Law School. "[Chatigny] should remove himself or be removed from the case. I think he has lost any pretense of neutrality." But Geoffrey Hazard, who specializes in legal ethics and procedure and is on the faculties of the Universities of Pennsylvania and California, was equally adamant in defending the substance, if not the language, of what was essentially a one-sided conversation in which Chatigny lectured Paulding. "The bottom line is it is a very extraordinary intervention by the judge in a very extraordinary situation," Hazard said. "Put aside the language in which he expressed it and it was a proper exercise of judicial authority." Chatigny initiated the call, in which he, Paulding and seven other lawyers joined, at 3 p.m. Friday - 11 hours and one minute before Ross was scheduled to be executed by lethal injection. During the 55-minute call, Chatigny alternately lectured and grilled Paulding, clearly displaying the belief that Paulding had not been sufficiently vigorous in investigating Ross' competence to waive further rights of appeal. "When I was in practice as a litigator, my investigation - I don't mean to pat myself on the back - but my investigation in a typical run-of-the-mill injury case would be more comprehensive than your investigation of this," Chatigny told Paulding. One aspect of the teleconference on which lawyers agree is that Paulding was in an unusual position in his representation of Ross. He is an opponent of capital punishment who had agreed to advocate on behalf of a confessed murderer who wanted to be executed. In the relatively brief remarks he was permitted to make during the teleconference, Paulding said he believed Ross had the mental competence to decide to allow his life to be ended. Chatigny's concern, expressed repeatedly, was that Paulding didn't do enough to confirm his personal belief through independent psychiatric review. And lawyers involved in the matter said Chatigny was concerned that courts that had made prior rulings had not been fully informed of suggestions that Ross' faculties could have become impaired by a phenomenon called death row syndrome. Those who say the syndrome exists contend that the close confinement of death row can cause inmates to lose the will to fight for their lives. The theory has been embraced in Europe by lawyers fighting extradition of murder suspects to U.S. states that have the death penalty. The theory has yet to be tested by the U.S. Supreme Court, but as a result of his role as a judge in an unrelated capital case, Chatigny said during the teleconference, he had undertaken a significant amount of research on the syndrome. In the days before the teleconference, lawyers seeking to block Ross' execution provided Chatigny with several pieces of evidence suggesting Ross' competence had been clouded by years on death row. During the teleconference, one defense lawyer informed Chatigny of an affidavit supporting claims of the syndrome. A portion of the evidence presented to Chatigny about death row syndrome in Ross' case was so new it had not been presented before courts that had previously affirmed Ross' competency. Stephen Duke, a death penalty opponent who teaches federal criminal law at Yale Law School, said Chatigny was properly concerned that Paulding was attesting to Ross' competency without enough corroboration from psychiatric experts. "I have trouble separating my bias out of this thing," Duke said. "But personally I think [Chatigny] is right on. I don't know anything about this judge, but I like what he says. The position that this lawyer is in is certainly unique. Generally speaking, lawyers who represent clients have obligations to fully investigate the facts before they do anything. And they are guilty of incompetence if they don't. Basically what I think this judge is telling this lawyer is that, `You're mouthing off. You're saying things and you haven't investigated the facts. And that's unprofessional.' "Even if [Ross] was competent two years ago, does that mean he is competent today?" Duke added. "That is the uniqueness of the death penalty situation. Any new evidence could be just enough. I mean his mental state is an ongoing thing that could change overnight. And, apparently, there is some evidence that has never been considered before." John H. Blume, director of the Cornell University Law School death penalty project, agreed with Chatigny's questioning of Paulding, but suggested the tone opened him to criticism. "Would I have said everything exactly like the judge said?" Blume said. "Probably not. But on the other hand I think the judge himself felt he had some moral responsibility as the fact finder that there wasn't some kind of miscarriage of justice. I think his motivation was in making sure that they didn't go ahead with the execution and the next day it comes out that Ross had everybody fooled. He was really crazy as a loon and had been coached on what to say to get through this thing. I guess the feeling was that you don't want to have egg on your face in a situation where the egg can't be wiped off." Those who endorse Chatigny's comments during the teleconference tend to oppose capital punishment. Blecker, who teaches constitutional history and a death penalty course at New York Law School, supports capital punishment and is one of those who are sharply critical of Chatigny's remarks. "That the judge would threaten to take away [Paulding's] law license, so clearly coercing him into a course of conduct that the judge is convinced is morally right, is in itself unprofessional, intemperate, beyond the bounds of responsible judicial action," Blecker said. Blecker said Paulding was browbeaten for taking positions contrary to Chatigny's beliefs - in particular that Ross' competence could be impaired by death row syndrome or by the disorder of sexual sadism. Blecker's research shows that incarceration on death row is in some aspects less confining than incarceration in the general prison population. And he argues that sexual sadism "is a description of evil which warrants death in this case, rather than sickness which warrants mercy." "What mistake would we be making by executing him on the misapprehension that he is doing it to spare the victims' families when in fact he is selfishly doing it to spare himself any more time on death row?" Blecker said. "We would have executed an eight-time murderer and a seven-time rapist who unquestionably deserves to die. We would have made the mistake of executing him not because he wanted to spare the pain of his victims but because he wanted to spare more of his own pain. It would have been an alternative moral justification. He should be executed regardless of why he is making the move. "The judge crossed the line," Blecker said. "I think he ceased to look and act like the court, much less an officer of the court, and descended to the role of advocate." Critics of Chatigny, 53, who has a lifetime appointment, said lawyers working in court to have Ross executed could ask the judge to remove himself from further involvement in the case, arguing that his remarks showed a bias against capital punishment. It is not unusual for lawyers to ask judges to remove themselves from cases. Many Connecticut lawyers are critical of Chatigny's remarks, but few would speak publicly for fear of antagonizing a judge or alienating clients who may agree with the judge. However, Chief State's Attorney Christopher Morano suggested, in rather circumspect terms, that he disagrees with Chatigny's assertion that Ross should not have been sentenced to death because he is a sexual sadist. "I am extremely troubled by the comments," Morano said. "However, at this point, I'm focusing my attention on Michael Ross and the pleadings we have to respond to. We'll save that for another day." Connecticut Attorney General Richard Blumenthal said he was disturbed by Chatigny's remarks, but he also refused to elaborate. "I join the chief state's attorney in having grave reservations about that teleconference," Blumenthal said. "But the appropriate place to comment on what a judge of the United States District Court says or does is in the courtroom. And we will comment on that teleconference at the appropriate time and in the right courtroom." ******************* Judge to hear motions in Ross case The case of serial killer Michael Ross is returning to New London Superior court. Judge Patrick Clifford, one of the judges who had ruled that Ross is mentally competent, will be holding a hearing tomorrow afternoon on motions filed by lawyers in the case. New London County State's Attorney Kevin Kane filed a "motion for determination" in Court seeking whether there is a possible conflict of interest between Ross and his private attorney, T.R. Paulding. The state Supreme Court on Monday issued a stay of execution for serial killer Michael Ross, who agreed to stop his lethal injection and have his mental competency examined. The court sent the case back to New London Superior Court. The 45-year-old Ross has admitted killing 8 young women in eastern Connecticut and New York in the early 1980s. He fired the public defenders last year and decided to forgo his remaining appeals. His execution by lethal injection was originally scheduled for last Wednesday, but is now on hold while his competency is examined. (source: Associated Press) *********************** 'Conflict' Now Legal Focus In Ross Case After a week of frenzied legal activity leading up to the indefinite postponement Monday of serial killer Michael Ross' execution, the action has slowed to a trickle. New London State's Attorney Kevin Kane filed a motion Tuesday afternoon asking Superior Court Judge Patrick Clifford to determine if there is any conflict of interest in attorney T.R. Paulding's representation of Ross, and, if so, whether Ross would agree to let Paulding represent him anyway. Ross was 4 hours away from his scheduled execution 2 a.m. Saturday when the U.S. Supreme Court late Friday night gave the green light. But in an unpredictable turn of events, Paulding asked to halt the execution. He cited a potential conflict of interest in his representation of Ross, but would not elaborate at 12:45 a.m. Saturday, when he and state officials announced that the execution was off. Before he filed papers in federal court in Hartford Monday morning, expressing a willingness to join Ross' former public defenders in exploring whether years of restrictive housing conditions prompted Ross to "volunteer" to be executed, Paulding described the conflict. He said it was between his advocacy of Ross' desire to be executed and his obligation to the court to present any and all evidence available to him. Paulding said he believed he had resolved the conflict by agreeing - with Ross' acquiescence - to pursue a new competency hearing for Ross, during which the "death row syndrome" would be addressed. Paulding said Ross has not wavered in his decision to forgo further appeals and volunteer to be executed. He said Ross just wants to clear away the legal obstacles that transformed his Jan. 26 execution date into the start of a legal marathon that would see 5 execution dates set in the course of 6 calendar days. Kane, who would not comment on his motion, clearly wants to foreclose the one issue that stood between Ross and certain execution. His motion states that he wants the court "to determine whether there is a possible conflict of interest between the defendant and his attorney and, if so, its potential implication and whether [Ross] is aware of and waives the conflict or conflicts." It was still unclear Tuesday which court - federal or state - would hear the matter of Ross' competence. Chief U.S. District Judge Robert N. Chatigny began a hearing on Ross' competence Jan 24 - two days before the originally scheduled execution date - citing the failure by state courts to examine the possible effects of oppressive conditions on death row. Chatigny subsequently entered 2 orders to halt the execution, only to have those vacated by federal appeals courts. It was the federal court hearing that Paulding sought to join Monday with his motion to intervene. But if Clifford convenes a hearing in state court on the conflict motion, it could be used as a platform for taking control of the case once again. It was Clifford who concluded Dec. 28 that Ross was competent - that he was fully aware of the legal options open to him and that he knowingly and voluntarily waived them. Clifford made that finding after denying Ross' former public defenders the opportunity to participate in the competency hearing. The public defenders put evidence that Ross may have been influenced by oppressive conditions on death row before the state Supreme Court, and then before Chatigny. Neither Chatigny nor Clifford has scheduled a hearing. The state will have to go back to court to secure a new execution date for Ross, a date likely to be months from now. (source for both: Hartford Courant) *************** After a Serial Killer Gets a Reprieve, the Spotlight Shines on a Federal Judge's Challenges Chance may have landed the serial killer Michael Bruce Ross before Judge Robert N. Chatigny of the Federal District Court. But if Mr. Ross truly wanted to die, as he claimed, Judge Chatigny was not the person he wanted to hear his case. A last-minute call to Mr. Ross's lawyer from the judge on Friday, just hours before Mr. Ross was scheduled to receive a lethal injection in the first execution in New England in more than 40 years, has put off the execution indefinitely and made the judge's conduct a topic of debate in legal circles. Judge Chatigny, 53, a former white-collar defense lawyer, has raised questions in the past about whether prolonged confinement on death row amounts to cruel and unusual punishment. The judge was assigned Mr. Ross's case as part of a random assignment process used by the court. But he quickly transformed the case, issuing a stay of execution and then making a conference call in which he threatened to seek the disbarment of Mr. Ross's lawyer, T. R. Paulding, for not doing enough to investigate claims that his client was incompetent. Mr. Ross, who has admitted to murdering eight women and raping many of them, had decided to drop all appeals of his death penalty and said he wanted to die. But his former public defenders and his father had ignored his wishes and gone to court to stop the execution, claiming he was not competent to make the decision to end his appeals. State courts had rejected the claims. In the conference call to Mr. Paulding, the judge expressed concerns about doubts raised by one former prison official about Mr. Ross's willingness to die. He also cited a letter written by an inmate, Ramon A. Lopez, who spoke to Mr. Ross through air vents and said Mr. Ross may have been coerced by harsh prison conditions. "You better be prepared to live with yourself the rest of your life," Judge Chatigny told Mr. Paulding during the conference call, which included several other lawyers. "And you better be prepared to deal with me if, in the wake of this, an investigation is conducted and it turns out that what Lopez says and what this former program director says is true, because I'll have your law license." The call ended at 3:55 p.m. Shortly before 1 the next morning, little more than an hour before the planned execution, Mr. Paulding told reporters that he had asked for the execution to be delayed. By Monday afternoon the execution had been postponed indefinitely, a psychiatrist had cast doubt on his own finding that Mr. Ross was competent, and the one-sided exchange between Judge Chatigny and Mr. Paulding was universally viewed as the turning point. Some lawyers say that Judge Chatigny, chief judge of Federal District Court for Connecticut, overstepped his bounds, though few will criticize him publicly. Others, however, including several specialists in legal ethics, say the judge may have acted with a heavy hand but that the gravity of the circumstances defy conduct codes and precedent. "These are extraordinary acts by the judge but the situation is extraordinary," said Geoffrey C. Hazard Jr., a professor at the University of Pennsylvania Law School who has written extensively on legal ethics and professional responsibility. Paul Chill, a clinical professor and associate dean for academic affairs at the University of Connecticut School of Law, said focusing on Judge Chatigny's conduct in the call detracted from the larger issue. "He clearly stretched the bounds of propriety, if not judicial ethics, in doing what he did," Professor Chill said. "But with a man's life on the line this was for keeps. Death is unique in the law. There's nothing you can do after Ross is dead to fix it." Public defenders argued that Mr. Ross, first arrested in 1984 and later sentenced to death, was making his decision to die out of despair, in part from the years he had spent in solitary confinement on death row. Judge Chatigny has toured Northern Correctional Institution in Somers, Conn., where Mr. Ross had been before being transferred to the prison that has the execution chamber. Some lawyers said that, regardless of how Judge Chatigny expressed himself in the conference call, the turn of events since then, particularly the second thoughts expressed by the psychiatrist, proved the judge had a point. "I think he was trying to convey the significance of the issues and his impression that additional work needed to be done," said Ross H. Garber, a lawyer who was a clerk for Judge Chatigny a decade ago. "It appears as if T. R. Paulding took those issues to heart. And it now looks as if Judge Chatigny was right." (source: New York Times) ******************** Victims' families clash on the death penalty John Cluny of Norwich supports the death penalty. His wife, Elaine, and son, David, 14, were murdered May 24, 1993, by a 15-year-old neighbor, Mark Bernier. Bernier is serving 60 years with no chance of parole. He is eligible for time off for good behavior, however, and could shave as much 18 years off his sentence. "The death penalty enhances the value of life," Cluny said Monday at the state Capitol. "Failure to use it actually devalues everyone's life." Debbie Florence of Brooklyn also understands the pain of losing someone you love to a violent act. Her daughter, Jenny McMechen, and unborn grandson, Nathan, were murdered New Year's Eve 2001. Michael LaTour was sentenced to 70 years for the killing. But unlike Cluny, Florence opposes the death penalty. She came to the Capitol Monday to speak in favor of Connecticut abolishing the death penalty. "It's not going to bring any honor to your loved ones," she said. "I don't think, even under the guise of the law, that it's OK to take another's life." Cluny and Florence were among several hundred who came to Hartford Monday for the opening day of the debate over the state's death penalty statute. "It's a very emotional issue," said state Rep. Melissa Olson, D-Norwich, a member of the Legislature's Judiciary Committee and longtime opponent of the death penalty. "It's not a partisan issue. This is an issue that comes from people's beliefs." The political debate began under the shadow of yet another delay in the state's effort to impose a death sentence for the first time in 45 years. Serial killer Michael Ross brought an end to his scheduled execution Monday morning, concluding a week of legal maneuvering. His scheduled execution was halted 4 times in 6 days. The warrant ordering his execution expired at midnight Monday. It will be months -- if not longer -- before another is issued. Judiciary Committee Chairman and state Rep. Michael Lawlor, D-East Haven, opened the hearing saying he hoped the Legislature would have an opportunity to debate the merits of the death penalty law before a new execution date is scheduled. The committee is expected to vote favorably for the measure to abolish the death penalty. Lawlor admits, however, there is not enough support among lawmakers for the bill to win approval in the full House and Senate, where a full scale debate will likely take place in March. "This is going to be decided in the courts, not here in the Legislature," said State Rep. Jack Malone, D-Norwich, who supports the death penalty. The vast majority who attended Monday's more than 6-hour hearing were opposed to the death penalty. "It's broken," said Gerald Smyth, the state's chief public defender who has led the effort to stop Ross' execution. "If you want to fix it, abolish it." State Rep. Steven Mikutel, D-Griswold, whose district includes the towns where 4 of Ross' victims lived and who supports the death penalty, described Monday's hearing as a "stacked deck" intended to create a case in favor of abolishing the death penalty. "What's at stake is the credibility of our state's criminal justice system," he said. "I blame the death penalty opponents, the public defenders and the judges who stop it. They throw every obstacle they can in front of it, then they turn around and say, 'See, it doesn't work.' They're the ones that are creating this circus." The state's inability to impose the death sentence on Ross, who has admitted his crimes and has asked to be executed, overshadowed Monday's discussions. "Michael Ross doesn't care about the grief he's causing the families of his victims," Florence said. "I can't imagine how they feel. He's playing the system. It's a slap in the face for this crazy process to be allowed to continue." Florence said she does not believe killing Ross will bring satisfaction to anyone. She said the pain is resurrected each time her daughter's death is brought up. She said she has found some satisfaction knowing the man who killed her daughter and unborn grandson is where he belongs, and is paying the price for his actions. "I don't think (executing Ross) will bring closure to the families," she said. "But if we close the door, that might help in letting people deal with it." Cluny sees it differently. "I think it's very important that victims come away feeling they got justice to the best of their ability," he said. "The definition of justice is when the punishment of the crime is equal to the seriousness of the crime. Cold-blooded murder, the price needs to be equal to that." Cluny agreed with Florence that closure cannot be achieved, no matter the outcome of the legal system. "It's an illusion," he said. "You never find closure. Some days are better than others. You learn to cope with it. You learn to live with it." (source: Norwich Bulletin) NEW YORK: Defender Office's 60 Lawyers' Jobs in Jeopardy If NY Death Law Not Reinstated Governor George E. Pataki called for the defunding of the Capital Defender Office in his budget released last month unless the Legislature repairs New York's death penalty law by June 30. The governor's budget proposed $12.3 million for the Capital Defender Office but restricted use of the money to "no more than 30 %" if the death penalty is not restored by June 30, the close of the 1st quarter of the state's fiscal year. The $12.3 million budgeted for the office is several hundreds of thousands of dollars less than the current budget. The Capital Defender Office employs 60 lawyers in New York City, Albany and Rochester. Kevin Doyle, the head of the Capital Defender Office, declined to comment. The office, established by the 1995 legislation that reinstated the death penalty, represents defendants accused of capital crimes who are unable to afford counsel. The New York Court of Appeals put the law on hold last summer when it found unconstitutional the instruction judges were required to give juries if they deadlocked over whether to sentence a defendant to death. Under the provision, judges were required to tell jurors that if they deadlocked over the death penalty defendants would be sentenced to a term where they would be eligible for parole within 20 to 25 years. In capital cases, a separate sentencing phase was to be held for a defendant found guilty of a capital crime. Juries were required to decide whether to sentence a defendant to death or to life without parole. In People v. Lavalle, 3 N.Y.3d 88, the Court of Appeals, by a 4-3 vote, ruled that the jury instruction could not be severed from the rest of the statute, which put the law in limbo until the Legislature remedies the defective provision. Last year, the Senate passed legislation remedying the defect by requiring defendants to be sentenced to life without parole in the event of a deadlock. But the Assembly instead elected to hold a series of public hearings to examine whether the death penalty should be retained. So far, 3 of 5 hearings have been held. Assemblyman Jeffrion L. Aubrey, the head of the Assembly Corrections Committee and 1 of 3 assembly members presiding over the hearings, said that Mr. Pataki had set the June 30 deadline "to abolish the Capital Defender Office" in "an attempt to put pressure on the Assembly to reinstate the death penalty." Mr. Aubrey, a Queens Democrat, said he could not say whether the Assembly would make a determination by June 30, but added it would decide whether to restore the death penalty "solely on the merits" and that the decision would not be rushed. Assemblyman Joseph R. Lentol, head of the Codes Committee and also one of the leaders of the public hearings, was more accommodating. "The governor is merely being practical," he said, by assuming that if the death penalty is not actually in the statute, why put money into the Capital Defender Office. "Even if the office is dismantled," getting it up and running would be a part of our negotiations" to fix the problem in the statute, said Assemblyman Lentol, D-Brooklyn. Ronald J. Tabak, head of New York Lawyers against the Death Penalty, said that during the three days of Assembly hearings both proponents and foes of the death penalty had spoken highly of the quality of legal work performed by the Capital Defender Office. "It would be a great travesty to let the office go out of business" unless lawmakers are sure "they will not bring the death penalty back within any time they can imagine," said Mr. Tabak, pro bono coordinator at Skadden, Arps, Slate, Meagher & Flom. One prosecutor said that the death penalty has been sought in only one case since the Court's Lavalle ruling. That was far fewer than had been typical for a six- month period prior to the ruling, the prosecutor said. According to statistics maintained by the Capital Defender Office, there are two capital cases pending before the Court of Appeals, and lawyers have been appointed in 7 cases where prosecutors have decided to seek the death penalty. There are another 19 cases where prosecutors have stated they are still investigating whether to pursue the death penalty. Several observers pointed out that the governor's power to make funding of the Capital Defender Office contingent upon fixing the death penalty statute was affirmed by the Court of Appeals last year in Silver v. Pataki, (NYLJ, Dec. 17, 2004). Under that ruling, the 2 houses of the Legislature would be powerless to remove the restriction without the governor's consent. (source: New York Lawyer) INDIANA: Kernan asks death-penalty system review----Former governor sees weaknesses in state's handling of capital cases. Indiana's death-penalty system needs more evaluation to ensure sentences are proportional to the defendant's culpability in the crime, and to ensure criminals with mental problems or marginal IQ scores aren't unfairly condemned to die, former Indiana Gov. Joe Kernan said. The death penalty is also being applied more heavily in some counties than in others, Kernan told The Tribune in a Tuesday interview. Kernan commuted the death sentence of death row inmate Michael Daniels earlier last month, saying he had found "weaknesses" in Indiana's system for trying and reviewing capital sentences. He is particularly concerned about eight capital cases that finished before 1990, when the state passed Criminal Rule 24. The rule ensures attorneys representing death row inmates have special training and experience, work in teams and have limited caseloads. "I'm not saying there aren't crimes where the death penalty isn't appropriate. But this is the big leagues, when you're talking about life or death decisions," Kernan said. "That is why ... I encouraged the three branches of government to sit down and revisit this. "There simply needs to be more guidance, if we're going to have a death penalty, about when, and how and if we should go through the process." It was unclear Tuesday whether Gov. Mitch Daniels would encourage such action. Kernan said it was a suggestion, not a "challenge" to Daniels' administration. Daniels' spokespersons could not be reached Tuesday for comment. Michael Daniels was legally eligible for the death penalty because of his participation in the robbery and murder of Allen Streett on Jan. 16, 1978, in Marion County. Michael Daniels asked for clemency because a post-conviction court concluded that the performance of his trial counsel was below standard, and that it was possible that more professional attorneys could have prevented a death sentence. Judges reviewing the case afterward were legally unable to use the issue to vacate the sentence. Also, two current Indiana Supreme Court justices voted to vacate the death sentence based on trial counsels' "ineffective" performance. Additionally, Michael Daniels has a borderline IQ and has been determined currently incompetent because of mental illness. According to Kernan, the key issue in the case was whether he was properly identified as the person who shot Streett. He was identified by one of his co-defendants. He was also identified by Streett's son, Timothy. But Timothy had previously identified two other individuals as the shooter, and he identified Daniels only after being hypnotized. One of the people Timothy previously identified as the shooter was Paul Rowley, and police found shell casings in Rowley's basement matching the shell casings from the weapon that killed Streett. Rowley also admitted having the gun in his possession on the day of the murder, and he admitted being present at one of the other robberies in the string that included Streett, Kernan said. Michael Daniels' original attorneys obtained all of this information before trial, but the lawyers who represented him at trial did not use the information, Kernan said. By a 3-2 vote, the Indiana Supreme Court agreed that the judicial system could not address the inadequacy of Daniels' representation. The justices called some of the trial counsels' failures "incomprehensible" and said the first post-conviction counsel was an inexperienced, overworked public defender. Kernan had heard enough. He commuted Daniels' death sentence to life in prison. In July, Kernan also commuted the death sentence for Darnell Williams, whose conviction for murder had raised similar issues. "What you find is, as you get into these things, where there is someone's life in your hands, is that you take it very seriously," Kernan said. State law bars someone with an IQ of 75 or lower from being executed. But intelligence scores are so subjective, Kernan said, that using them to determine life or death is worrisome. Michael Daniels' IQ was a 77. Williams' was as low as 78. "When someone is that close, and they know that's the bright red line .... should they be automatically eligible for execution?" Kernan said. "I think that's a question that should be answered." Kernan said he received requests for clemency in 8 other capital cases. He made no judgment on them, he said, because the cases hadn't gone before the state's parole board yet. But some of the cases raise questions about whether someone is facing a death sentence because of poor legal help, and whether death is the most appropriate punishment because of someone's "lack of culpability or serious mental illness." "It's very different being on the field than it is being in the stands, when you're looking at these things," he said. (source: South Bend Tribune) ***************** Defense considering final appeal for condemned Evansville killer A defense attorney is considering a final appeal to prevent the execution of a man convicted 23 years ago of killing an Evansville couple and their 2 children. Donald Ray Wallace, 47, has sought to end efforts to block his execution, which the state Supreme Court on Monday set for March 10. The setting of the execution date followed a decision this month by the high court for the 4th time to reject appeals of Wallace's sentence. The execution order has long been awaited by Vanderburgh County Prosecutor Stan Levco, who as young deputy prosecutor worked to put Wallace on death row. "Over the last year, it's become more of a reality to me that this execution was finally going to happen," Levco said. "But it's been so long, it's still hard to believe." Wallace was convicted in 1982 of shooting to death Patrick Gilligan, his wife, Theresa, their 5-year-old daughter, Lisa, and 4-year-old son, Gregory. Authorities said the Gilligans were killed in January 1980 after surprising Wallace as he burglarized their home. Defense attorney Sarah Nagy said Tuesday that she was researching a possible appeal based on the grounds that too much time had elapsed for Wallace to be rightfully executed. "The argument is that to hold someone that long and then take his life is cruel and unusual punishment," she said. "It's been too long - he's been rehabilitated." Nagy said she was discussing an appeal with Wallace, but would not file a motion without his permission. If Wallace refused to consent and Nagy believed the appeal would prevent his death, she said she would seek ethical guidance from the state Supreme Court. "I have an ethical duty to do everything I can to save his life," Nagy said. "On the other hand, he is capable at this point of making his own decisions." Wallace can still ask Gov. Mitch Daniels for clemency. But in letters written to the Evansville Courier & Press over the last several months, Wallace said he has told his attorneys to not seek clemency. Wallace had claimed in his appeals that his legal counsel at his sentencing was ineffective and failed to present sufficient evidence that would have generated sympathy for him. A federal appeals court in March denied his request to have his death sentence set aside. The U.S. Supreme Court in November refused to hear the case. Diana Harrington, Theresa Gilligan's sister, said Levco called her family Monday evening to tell them of the execution order. "I can't quite believe it," she said. "It's just been so long." She said she expected to feel a rush of anger and bitterness toward Wallace. Instead, she said, she found herself saying prayers of gratitude for the years of support from the Evansville community and prayers of concern for Wallace's family. "The support has been very important in our lives," Harrington said. "We hold only Donald Wallace responsible for his actions and recognize what a difficult time this is for his family." (source: Associated Press)
