April 16 CALIFORNIA: Graveyard Shift----An increasingly conservative 9th Circuit is growing less receptive to capital claims It used to be that a capital habeas corpus petition at the 9th U.S. Circuit Court of Appeals was a gimme: California death row inmates could pretty much count on the circuit to live up to its liberal reputation and order them some form of relief. Not any more. In seven capital habeas cases decided since Sept. 21, the court has ruled against the prisoner 5 times. Before that, it had ruled in favor of the petitioner 17 times in a row. "It's absolutely true that you're less likely to win in a capital case now than three years ago," said Professor Rory Little, who teaches criminal procedure at Hastings College of the Law. The recent spate of habeas denials means as many as four people could be scheduled for execution in California later this year. In January, Donald Beardslee became the first person put to death in California since January 2002. It could be that the circuit is finally getting the message from the U.S. Supreme Court, which has reversed many of the 9th Circuit's death penalty rulings and more than once specifically told the court to butt out. But there's another change that has pushed the court rightward: President George W. Bush's four appointments to the circuit. Lawyers and judges predict that the 9th Circuit's rightward tilt in capital cases will become even more pronounced in coming months. The 1996 Anti-terrorism and Effective Death Penalty Act, which Congress designed to limit the ability of federal courts to overturn state decisions, is becoming more of a factor in habeas petitions. In addition, four vacancies remain on the court out of a total of 28 active judgeships. If Bush manages to overcome the current Senate filibusters, he could transform a court that's been a bastion of liberalism. "It would only take one to two appointees to turn this into a conservative court," said a 9th Circuit judge who asked to remain anonymous. Bush's 1st pick for the 9th Circuit was Judge Richard Clifton in July 2002. Then came Jay Bybee, Consuelo Callahan and Carlos Bea the following year. The influence of Bush's judges in the recent habeas denials is apparent. In 4 of the 5 cases, the denials stood on three-judge panel decisions without going to en banc review. In the case of Williams v. Woodford, 05 C.D.O.S. 1005, at least nine judges -- all of them Democratic appointees -- urged an en banc vote but fell a few votes short of a majority. Only active judges can participate in en banc voting. Because it's a straight majority vote of all the active judges, it's a good measure of which way the court is leaning on a particular issue. The court does not release the results of en banc voting. But another 9th Circuit judge who asked to remain anonymous said the influence of the Bush judges in habeas cases is clear. "If you could see the votes I think you would see that they were very close," said the judge. "You add 4 more [Bush judges], you will have very, very few death penalty cases going en banc, if any." That would be fine with Senior Assistant California Attorney General Dane Gillette, the state's capital case coordinator. He said there could be a number of explanations for the court's recent habeas denials, including the Bush judges and the beginning of the impact of AEDPA. "Or it may be a function of the court having felt that it has worked out all the serious problems," Gillette said. "It's really very difficult to say what's going on. Obviously, we're hopeful that [9th Circuit judges] will continue showing deference to state courts." CALLING A HALT For this story, The Recorder examined 9th Circuit rulings for 24 prisoners over the last three years. For purposes of the analysis, a "grant" is a ruling in favor of the prisoner on any claim for relief, including remands for evidentiary hearings. A "denial" means the court ultimately ruled against the prisoner on all claims. Michael Laurence, executive director of the Habeas Corpus Resource Center, said it's dangerous to assume Bush judges are more inclined to deny habeas petitions. "I don't think the ideology of a president is a measure of what is going to happen in a capital case," Laurence said. Laurence learned that lesson 15 year ago when he represented Robert Alton Harris, the 1st person executed after California reinstated the death penalty in 1978. A Ronald Reagan appointee, Judge John Noonan, halted the execution in 1990. Harris was executed 2 years later, after four more stays, and after the high court specifically ordered the circuit to back off. "Bush judges have not changed the practice in the 9th Circuit," Laurence said. "You still need to create a very compelling reason of why you are entitled to relief no matter who your judge is." Laurence believes the more significant trend is that an increasing number of petitions are reaching appellate panels after district judges have held evidentiary hearings "so that the merits are the centerpiece of the appeal," he said. The 9th Circuit is much less likely to grant relief on the merits compared to procedural grounds, such as a request for an evidentiary hearing. Only 11 people have been put to death in California since capital punishment was reinstated. There are currently 638 inmates on death row, many of them there for more than 20 years as the state and then the federal courts sort out their appeals. Arizona, the 9th Circuit state with the next-largest death row, has executed 22 since 1992. Currently there are 128 prisoners on that state's death row. 'ROUNDS AND ROUNDS' The 1996 Anti-terrorism and Effective Death Penalty Act was designed to limit federal court review of state court decisions in capital cases. But Laurence, unlike his counterpart at the AG's office, does not believe AEDPA will speed things up. In fact, he said, the law is the single biggest reason cases take so long to resolve right now, because lawyers go through "rounds and rounds" of litigation over whether and how it applies. And the 9th Circuit isn't helping to clear things up. Just last month, a 9th Circuit en banc ruling that had interpreted AEDPA favorably for prisoners was reversed by the U.S. Supreme Court. Brown v. Payton, 05 C.D.O.S. 2398, held that "the Ninth Circuit's decision was contrary to the limits on federal habeas review imposed by AEDPA." Ninth Circuit Judge Alex Kozinski, who was appointed by President Reagan in 1985 and is scheduled to become the next chief judge, said it's difficult to spot the influence of particular judges because there are so few death cases "and any one judge may only sit on 1 or 2 of them." "I think it will take quite a bit more time to spot trends in the court as a whole. Occasionally, we have something big here -- like AEDPA -- and that may affect the outcome," Kozinski said. "I wouldn't guess there was a trend. I certainly don't see myself as being a part of it. But fish maybe can't see the stream." Judge Sidney Thomas, who serves as the circuit's capital case coordinator, also does not see any significance to the recent denials. "Obviously, each case is decided on its own merits," he said. Thomas agreed with Laurence, though, about the district court work on cases, which now come to the circuit with many issues already resolved. "Legal questions get settled. Cases that raise similar issues are more easily decided," Thomas said. That means there's less for 9th Circuit judges to hang a hat on. Kozinski said judges are not reacting to criticism from outside the court, nor does he lose any sleep over getting reversed by the Supreme Court. But both he and Thomas said capital cases get special attention. "There tends to be a lot of traffic from other judges" in the form of internal memoranda, Kozinski said. "Often, if there is an amended opinion, you can infer that it may have been prompted by another judge's suggestion." TOO LATE TO SEE TRENDS So what does this all mean for the attorneys who work the cases? Tracy Dressner is a La Crescenta, Calif., solo who worked on a petition for inmate Larry Davis, who was denied relief in September by a three-judge panel in Davis v. Woodford, 04 C.D.O.S. 8599. There's still an en banc petition pending in Davis, and Dressner recently began briefing another habeas case at the 9th Circuit. Dressner said the cases take so long to get through the courts that "the trends tend to happen after you've already done your briefing." However, she said, if the current spate of denials continues, it could discourage attorneys from taking the cases in the first place. California already suffers from a shortage of qualified death penalty lawyers. "It's one thing to engage in litigation and have a happy outcome, which is what was happening for years in the 9th Circuit," Dressner said. "And it's another thing to realize that there is a possibility that the state is going to kill your client at the end of the day." (source: The Recorder) SOUTH CAROLINA: 10 years in jail without a trial----Case of 27-year-old murder suspect may be unique in nation A man charged with a Lexington County murder 10 years ago has sat in jail ever since. Lawyers and legal experts can't recall another case in South Carolina and possibly the nation in which a murder defendant has remained behind bars that long without a trial. Calen John Radwill, 27, should stand trial in November, said Trey Gowdy, a Spartanburg County prosecutor assigned the case in February when the Lexington County prosecutor's office said it had a conflict of interest. Radwill was 17 in June 1995 when authorities say he kidnapped 15-year-old Brandon Vinson from a grocery store where Vinson worked and stabbed him about 70 times. Brandon's body was found several days later in an abandoned chicken coop near Gilbert. Radwill has been in jail ever since. "My son for 10 years has maintained his innocence," the suspect's mother, Lisa Radwill, told The (Columbia) State. "When they do take him to trial and acquit him, how do you give back 10 years of his life?" Neither Lexington prosecutor Donnie Myers nor Radwill's main lawyer, John Delgado of Columbia, will discuss why Radwill hasn't been tried, citing a court gag order issued in 2002. "It's uncivilized," said Bill Nettles, past president of the S.C. Association of Criminal Defense Lawyers. "Nobody should sit in jail that long." Unlike the federal government, South Carolina law does not set deadlines for trying cases and allows its prosecutors to set criminal court dockets, Nettles said. "This is the dirty secret about the South Carolina criminal justice system," Nettles said. "If you get arrested and you can't make bond, and they don't have a good case against you, you're going to sit in jail." Joseph Savitz, the lead lawyer in the S.C. Office of Appellate Defense said he has never heard of a case taking this long to go to trial with the defendant behind bars. The near decade-long delay in Radwill's case may also have set a national record, according to the National Center for State Courts in Virginia and the Pretrial Services Resource Center in Washington, D.C., a nonprofit information clearinghouse. Some lawyers said there could have been good reasons by both sides for some of the delay. Delgado convinced the court to postpone the last-scheduled trial in October pending the U.S. Supreme Court ruling on teen killers. The court in March banned executions of killers who were younger than 18 when they committed their crimes. Prosecutors had been seeking the death penalty against Radwill before the Supreme Court's decision. If convicted now, Radwill could spend the rest of his life in prison, though under old sentencing laws, he could be eligible for parole in about 10 years with credit for time served. (source: Associated Press) ALABAMA: Juvenile Murderer Sentenced To Death Gets Life; Family, Prosecutors Outraged Friday marked the end of National Crime Victims' Rights Week, but instead of healing, there is anger. Earlier in the day, a Montgomery judge handed down a new sentence for a convicted murderer that allows him to escape the death penalty he got 13 years ago. The change, ordered by the U.S. Supreme Court, is what the attorney general calls a slap in the face for the victim's family. Shirley Vinson's heart is broken again. Earlier today, she endured sitting in the same courtroom with the person convicted 13 years ago of killing her sister Helen Rhodes. This time, she says he was the winner. "We did get justice, and it's been taken away from us," Vinson said. In 1989, William Knott escaped from the Mt. Meigs Youth Prison and went on a rampage. Investigators testified that he broke into a series of houses, stole guns and then lay in wait for Helen Rhodes. He killed her as her 2 year old son watched. Montgomery County District Attorney Ellen Brooks prosecuted the case. "I will never forget the description that David Rhodes gave at trial, of how he came home from church to find his wife dead in a pool of blood and that baby hugging his mama, hoping he could make it all right," she said. Even Knott's own grandfather labeled him a troublemaker. "I had him put in jail in Birmingham they sent him down here, nobody watching him, he'd just walk off," Charles Morse said in 1992. Knott was 17 years and 11 months old at the time of the murder. He was one of two minors convicted in Montgomery County and handed the death penalty since 1977, and it appeared he would soon face the death chamber. Then the U.S. Supreme Court ruled defendants under the age of 18 should not face death, a decision both Democrats and Republicans are blasting. Brooks said, "There's no law in it. It simply says we polled America, and America is not so pro-death penalty anymore, and juveniles should be given a break." Alabama Attorney GeneralTroy King is also angry. "Here's somebody who was 17 years old and 11 months. A month away from being eligible for the death penalty. A month away! And we're saying that month would have made so much difference they shouldn't be given this punishment. It makes no sense," he said. But the greatest and most heartfelt criticism comes from the murder victim's sister. "If just one member of the U.S. Supreme Court had experienced what we've experienced, I really feel like they wouldn't have made this decision if they had gone through this heinous crime like we did," Shirley Vinson said. William Knott is the 1st of 13 Alabama defendants who can ask for a new sentence under the Supreme Court ruling. Brooks says the other minor handed the death penalty from Montgomery County is expected to ask for that process to begin soon. King says his office won't file the paperwork for the other defendants in the state. They will have to do that for themselves. As that happens, Shirley Vinson says she will support any move to get the president to appoint new Supreme Court justices who might overturn the decision. (source: WSFA News) FLORIDA: Protecting life--Re-examine Florida's death penalty stance Since 1971, 25 Floridians have been exonerated of crimes that put them on death row. Another four were executed despite evidence that they were probably innocent. Nobody knows how many more have been put to death on faked evidence, mistaken eyewitness testimony or attorneys' mistakes. Few would have cared, if not for the rapidly advancing science of DNA testing. In hundreds of years-old cases across the country, DNA tests have overturned convictions and freed innocent people. But DNA only goes so far. In some cases, evidence has not been preserved well enough for testing. In others, there was never any DNA to test. It may be impossible to know how many of those convictions were mistaken. But at the least, people are now asking the questions. And raising serious doubts about the death penalty. Last week, the New York State Assembly killed a measure that would have reinstated the death penalty after that state's high court declared it unconstitutional. The chief reason cited: Doubts about wrongful convictions. Florida's leaders have raised similar concerns. They've passed legislation giving inmates more rights to DNA testing. This session, lawmakers are debating a bill that would dramatically increase compensation for people who have been imprisoned on convictions that are later overturned. The state has also adopted laws that allow for life in prison without parole. Polls show that a majority of citizens find that an acceptable alternative to the death penalty. Yet Florida's governor, its Cabinet and its legislators remain wedded to the concept of the death penalty. This state has the 3rd-largest death row in the nation. It spends millions of dollars each year to prosecute death-penalty cases and then to defend the convictions. Why? Not to protect victims or prevent future murders -- a sentence of "real life" behind bars accomplishes that very well. Not to reduce costs -- it's actually far more cost-effective to imprison someone for life than to incur the expense of a death-penalty prosecution and appeals. Not to deter crime -- studies have repeatedly shown that the death penalty does little (if anything) to reduce the murder rate. And not for the sake of justice. In Florida, the death penalty sentence is handed down so randomly that former Florida Supreme Court Chief Justice Leander Shaw compared it to "lightning striking." Across the country, former death-penalty proponents have examined the growing evidence of innocence, and their own consciences, and changed their minds. Florida's Gov. Jeb Bush professes a strong dedication to the sanctity of life, as do state lawmakers and most of the Cabinet. State leaders must have been visited by the same misgivings that have led others to change their minds about the death penalty. Perhaps -- like Illinois Gov. Jim Ryan and Pope John Paul II, who reversed the church's official stance on the death penalty -- their consciences can no longer abide a penalty so demonstrably unfair and so irreversible. (source: Editorial, News-Journal)
