March 5 FLORIDA: DEATH ROW INMATE'S APPEAL CHAMPIONED BY LEGAL GIANT----The petition to save Florida Death Row inmate Billy Kelley has been submitted to the U.S. Supreme Court, familiar territory for powerhouse attorney Laurence Tribe. In the wee hours of the morning, a third-year Harvard law student of professor Laurence Tribe's sat staring at his laptop on his grandmother's 1930 dining-room table in a drafty Victorian house. He wore the same green flannel pajamas he had put on two days before, and had not slept since. At 2:30 a.m. Thursday, he clicked the ''send'' icon on his screen. With this gesture, he began the last step in an adversarial process that is the bedrock of the American justice system: the right of the criminally convicted to overturn grave error. And, so, a petition was on its way to the U.S. Supreme Court. At stake: The life of Billy Kelley on Florida's death row. 21 years ago, a jury convicted him for the murder of Sebring citrus grower and cattleman Charles Von Maxcy -- which occurred 39 years ago. >From Cambridge, Mass., Tribe's 40-page plea went by e-mail to a Boston print shop, which made 40 copies and sent them overnight to Washington, D.C., for a Friday arrival at the high court. LEGAL TWISTS, TURNS In 2002, Broward U.S. District Judge Norman C. Roettger, who died in 2003, granted Kelley a new trial. State prosecutors said they could not retry Kelley, clearing the way for his release from prison. Roettger, known as a champion of the death penalty, said he believed Kelley was innocent. He also named the likely killer (now dead) in court documents, and signed an order saying Kelley could leave Florida's death row and go live with his brother in Tewksbury, Mass. "Billy had his toothbrush packed," said Texan Jimmy Lohman, one of Kelley's appellate lawyers. But a 3-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta overturned Roettger's decision and reinstated Kelley's conviction. Chief Justice Gerald Tjoflat wrote the opinion. Now the only thing standing between Kelley, 62, and a lethal shot of potassium chloride is the petition to the U.S. Supreme Court by Tribe -- a legal giant who represented Al Gore in the recount battle after the 2000 election. Charles Von Maxcy was stabbed to death in the bedroom of his Sebring ranch house in October 1966. In 1967, a jury convicted Boston mobster John Sweet, the secret lover of Maxcy's wife, Irene, for the murder after Irene testified against him. But Sweet was released from prison a year later after Irene admitted having an affair with the lead homicide detective in the case. By 1981, Sweet, who died in 1989, was facing a hefty prison sentence for running theft and fraud rings in Massachusetts. To save himself, he offered to name the hitmen in the Von Maxcy murder in exchange for immunity. One was dead; the other, he said, was Kelley, a small-time Boston crook. 'NOTHING TO GAIN' At Kelley's 2nd murder trial in Sebring -- the first ended in a mistrial -- the only evidence against him was Sweet's testimony. No witnesses, no blood samples, no hair, no fingerprints connected Kelley to the murder. After closing arguments, the jury was so confused about Kelley's possible role in the murder that the foreman sent a note to the judge questioning Sweet's motives for implicating Kelley and asking the prosecutor if Sweet had anything to gain by his testimony. The prosecutor, Hardy Pickard, now a prosecutor in Polk County, responded that "Sweet had nothing to gain by his testimony." In 2002, after Kelley had been on Death Row for 18 years, Roettger ruled that Kelley should be given a new trial because Pickard "misled the jury" about the immunity deal and was guilty of "prosecutorial misconduct" for "withholding evidence." But a year later, the 11th U.S. Circuit Court of Appeals reinstated the conviction. The primary reason: The appellate panel did not think the jury needed Pickard's clarification on the immunity deal to consider Sweet a "sullied witness" because of information already revealed by cross-examination about Sweet's dishonesty. In the petition "for writ of certiorari" that Tribe filed to the Supreme Court, he argued that in a capital case no evidence should be overlooked because "withholding even a single item of exonerating evidence might well tip the scales against the accused . . ." To further entice the court, Tribe wrote that the Kelley "case is a fitting vehicle" for the high court "to address [a] circuit split" -- a difference of opinion in federal appellate courts across the country -- about whether additional impugning evidence should be introduced. "If Billy's case had been heard in Washington, D.C., or the Ninth Circuit [which consists of nine western states], he would have been set free. A life shouldn't depend on geography," Tribe said. A FIRST FOR TRIBE Although Tribe has argued 36 cases before the U.S. Supreme Court -- 22 of them successfully -- he has never involved himself with a capital case before Kelley's. His main reason for this involvement, he said, is to answer this question: "How much should prosecutors be permitted to suppress key evidence and get away with it, especially when they deceive the defense, the judge and the jury?" Tribe does not lack backup legal firepower. He sought the advice of top experts on the death penalty, including Anthony Amsterdam, who directed the legal challenge that invalidated the death penalty in 1972. For the high court's previous term -- October 2003 through June 2004 -- the justices received 8,883 petitions from death row inmates. They heard only 91. Said Kelley from death row: "If I lose, I'll just appeal to the Big Guy." (source: Miami Herald) CALIFORNIA: Death Row Often Means a Long Life----California condemns more murderers than any state but Texas, yet it accounts for only 1% of the nation's executions. Today, 640 inmates await the penalty. When prison guards strapped nervous three-time killer Donald Beardslee to a gurney and administered a lethal injection just after midnight here on Jan. 19, it was the 1st California execution in more than 3 years. Beardslee, who in 1981 brutally murdered two young San Francisco area women after he was paroled from a Missouri prison on another murder conviction, waited 21 years for his day of reckoning. He was 61 and had been on death row longer than the entire life span of one of his victims. In the quarter century since Californians voted overwhelmingly to restore the death penalty, county prosecutors and juries have put more condemned murderers on death row in this state than in any other except Texas. Despite the public's willingness to hand out death sentences, California is one of the more hesitant among the 38 capital punishment states to use the penalty, causing some to question if the enormous ongoing cost of capital punishment is worth the relatively few executions it produces. California has 640 inmates on death row, about 20% of the nation's total. But the state has accounted for only 1% of the nation's executions - or 11 deaths - since 1978, when the death penalty was restored. "What we are paying for at such great cost," said UC Berkeley law professor Frank Zimring, "is essentially our own ambivalence about capital punishment. We try to maintain the apparatus of state killing and another apparatus that almost guarantees that it won't happen. The public pays for both sides." According to state and federal records obtained by The Times, maintaining the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts. With 11 executions spread over 27 years, on a per-execution basis, California and federal taxpayers have paid more than a quarter of a billion dollars for each life taken at state hands. Capital punishment advocates argue that the death penalty saves money by eliminating state costs of housing the executed inmates. The rare California executions do produce some savings for the state. For example, had Beardsley lived to age 77, the average life expectancy for California males, it would have cost the state an additional $2 million to house him. But these kinds of savings make only a small dent in the overall sums needed to maintain the system. Former California Atty. Gen. Dan Lungren, now a Republican member of Congress from Sacramento, accuses capital punishment opponents of conducting a "war of attrition" against the death penalty, jacking up the cost and greatly prolonging appeals with the intent of making the process too expensive to keep up. "I don't think society ought to be forced to give up the death penalty just because of actions by those who have been ratcheting up the costs," said Lungren, who helped write a 1996 federal law attempting to speed up capital case appeals. "It is very difficult to calculate the human costs or even the economic costs of those who are not killed because of the deterrence of capital punishment." Other states execute much more rapidly than California. Eleven Southern states - led by Texas (337 executions), Virginia (94) and Oklahoma (75) - account for 90% of all executions in the last 27 years. This is partly because California, similar to other non-Southern capital punishment states, dedicates much more time and money to state and federal appeals. Another important factor is that the U.S. 9th Circuit Court of Appeals, serving California and composed largely of Democratic appointees, is more likely to hear death penalty petitions than the more conservative appeals courts serving Texas (5th Circuit) and Virginia (4th Circuit). "We don't turn them [executions] out the way a lot of Southern states do," California Chief Justice Ronald M. George said in an interview. "The virtue of our system is also its vice. We go to such lengths to minimize the possibility of error, and we've built in a lot of delay. The part I find most dysfunctional is that we have a delay of three to 4 years between the time of the death penalty judgment is imposed by the trial court and the time the defendant is appointed counsel." George said that 115 death row inmates still have not been appointed lawyers for the 1st direct appeal to the state Supreme Court that is mandated by state law. And 149 lack lawyers for state habeas corpus and executive clemency petitions. In recent years, both state and federal courts have increased the incentives for qualified defense attorneys to take death penalty cases. The state Supreme Court offers $125 an hour or fixed fees ranging from $135,000 to $314,000 for capital case defense representation. The federal courts recently increased their hourly rate to $150 for defense lawyers in capital cases. But even at those rates, only a relative handful of attorneys from the 200,000 licensed to practice in California are willing to devote the years of work and vast number of filings a typical capital case can take. Because of the long appeals process, the delay between sentencing and execution in California averages nearly 20 years. As a result, there is a general graying of the population on death row. According to Department of Corrections statistics, 180 death row inmates are older than 50; 42 are older than 60. Prison records show that California death row inmates are far more likely to die of natural causes than they are at the hands of the executioner. Since 1978, during the same period that 11 inmates were put to death, 28 died naturally, 12 committed suicide and two were killed in incidents on the San Quentin exercise yard. "The leading cause of death on death row," George said, "is old age." Capital punishment California style has become a small industry. Every February, organizers with the California Attorneys for Criminal Justice and California Public Defenders Assn. host a conference on death penalty issues in Monterey, Calif. This year's convention, titled "Executing Justice, not People" was held at a cost of $300 a head. More than 1,500 participants attended workshops on topics that included "What the Enemy Is Doing" and "Sexual Abuse of Our Clients When They Were Young." Among the tactics routinely discussed by attendees is how to prolong appeals. The public cost of maintaining the death penalty, meanwhile, continues to mount. The annual bill breaks down like this: According to Corrections Department spokeswoman Margot Bach, it costs $90,000 more a year to house an inmate on death row, where each person has a private cell and extra guards, than in the general prison population. That accounts for $57.5 million annually. Atty. Gen. Bill Lockyer, whose deputies represent the counties during appeals, estimates that he devotes about 15% of his criminal division budget to capital cases, or about $11 million annually. The California Supreme Court, which is required by law to review every death penalty case, spends $11.8 million annually for court-appointed defense counsel. The Office of the State Public Defender, which represents some death row inmates, has an annual budget of $11.3 million. The San Francisco-based Habeas Corpus Resource Center, another state-funded office, represents inmates and trains death penalty attorneys on a budget of $11 million. Finally, federal public defenders offices in Los Angeles and Sacramento, and private attorneys appointed by the federal court system for California cases, receive about $12 million annually. The resulting $114-million annual cost does not include the substantial extra funds needed to try the complicated capital cases in county courts. Research by the UC Berkeley School of Public Policy in 1993, the most recent study of its type available, showed that in Los Angeles County, a capital murder trial costs 3 times more to try than a noncapital murder case, $1.9 million compared to $630,000. One reason for the extra costs is that capital cases require a jury trial for sentencing after guilt has been determined in the 1st trial. Typically, capital cases have four times as many pretrial motions, more investigators and expert testimony and much more exhaustive jury selection. Other spending not included in the total are courtroom, staff and filing costs at the California Supreme Court, 4 federal district courts and the U.S. 9th Circuit Court of Appeals. In an interview, George estimated that the state's highest court spends about 20% of its time and resources on death penalty cases alone. Federal habeas corpus appeals in death cases are so expensive that the 9th Circuit assigns a U.S. district judge just to review the budgets of each capital case. For the present, activists both for and against the death penalty are unhappy. "When we reinstated the death penalty, I don't think anyone believed it would look like it does today," said Dane Gillette, a senior assistant attorney general who overseas the state's death penalty cases. "The system is twisted and corrupted in ways that were not anticipated." Michael Laurence, director of the Habeas Corpus Resource Center and one of the state's leading capital defense lawyers, sees the whole process as an enormous misuse of resources. "We put all these resources into litigation where we end up killing one person every 2 or 3 years," said Laurence. "What if just a small portion of the money we spent on these cases went for the prevention of child abuse? From my experience, this would have done far more to prevent murders than anything we have done with capital punishment." Possibly as a result of the high costs and bottleneck on death row, there has been a marked decline in death sentences in recent years. In 1999, juries imposed 42 death sentences. In 2004, the number dropped to 9. But the numbers fluctuate, and new admissions to California's death row continue to exceed by many times the number of executions. USC law professor Michael J. Brennan said he and a co-counsel, Los Angeles lawyer Phillip A. Trevino, have represented two California death row inmates on federal appeals for the last 12 years, for which Brennan estimates they have been paid $250,000. Brennan said that when he debates the issue with death penalty supporters, he no longer bothers with the ethical and moral issues. "I had a conversation with someone recently who admitted to being sort of a redneck on the death penalty," Brennan said recently. "But when I said, 'Let's talk about how much it costs,' I suddenly got his attention." (source: Los Angeles Times) USA/WASHINGTON: Brother of "Unabomber" says killing killers is wrong There is no way to devise a fool-proof system - or even a fair system - when it comes to sentencing people to death, and ultimately, killing killers is the wrong way to go, the younger brother of "Unabomber" Ted Kaczynski said at a fund-raising dinner in Seattle last night. David Kaczynski, who turned his brother in to the FBI and is now the executive director of New Yorkers Against the Death Penalty, could not have had a more receptive audience: He addressed about 160 social-justice activists, people from various faith groups and criminal-defense attorneys as the keynote speaker at a dinner and auction at the College Club. The annual event benefits the Washington Coalition to Abolish the Death Penalty. Kaczynski was brought to Seattle by Judith Kay, a social-ethics professor at the University of Puget Sound in Tacoma and a coalition volunteer who visits and provides "death-row support" to the 9 men now facing execution in Washington state. David Kaczynski, Kay said, faced a "horrible ethical dilemma" in deciding whether to step forward with suspicions that his schizophrenic brother was responsible for a 17-year-long bombing campaign that killed 3 and injured more than 20. His brother was arrested in 1996. "I think he's a model of courage and consistency of his convictions against violence," Kay said. "He didn't want any more innocent people harmed, and he didn't want his brother to be killed." It will be 10 years next month that Kaczynski's wife, Linda, first suggested to him the possibility Ted Kaczynski could be the Unabomber, David Kaczynski said last night. He spoke of his anguish, but also of the betrayal he felt when prosecutors decided to seek the death penalty against his brother, saying all that saved Ted Kaczynski from the execution chamber were his lawyers. In a 1998 plea deal, prosecutors agreed not to seek the death penalty. Ted Kaczynski is serving a life sentence in a Colorado prison. Race is also a factor, David Kaczynski said. He told the story of a California man, Bill Babbitt. Babbitt, who is black, also turned his schizophrenic brother in to authorities after suspecting that his brother, Manny Babbitt, was responsible for the murder of an elderly woman. But he didn't get a good lawyer - his attorney had never argued a criminal case, let alone a capital case, Kaczynski said. Manny Babbitt died by lethal injection. But Kaczynski and others celebrated a number of "small victories" last night, namely the U.S. Supreme Court's ruling this week that bars capital punishment for crimes committed before someone turns 18. Kaczynski is also hopeful that New York - whose state Supreme Court last year struck down the state's capital-punishment statute as unconstitutional - will decide not to reinstate the death penalty. As for Washington, there are signs, too, that attitudes are changing, said Mark Larranaga, director of Washington state's Death Penalty Assistance Center. In the last 5 years, Larranaga said, Washington has had the fewest cases where the death penalty was sought, the fewest cases where it was imposed and the highest number of reversals in the state's history. In that time, the number of death-row prisoners has shrunk from 18 to 9, "almost all of them because of reversals" that resulted in life sentences. Still, Larranaga said, in this state "every single African-American man on death row was put there by an all-white jury." (source: Seattle Times)
