April 27 TENNESSEE: High Court hears jurisdiction case -- Examines whether death penalty ruling can be reconsidered The U.S. Supreme Court heard arguments Tuesday over when an appeals court loses jurisdiction over cases, taking up the unusual case of a Tennessee death row inmate whose execution was stalled after a court unexpectedly withdrew its earlier judgment. At issue is whether the 6th U.S. Circuit Court of Appeals followed the proper procedures when it decided, of its own accord, to reconsider the case of convicted murderer Gregory Thompson after previously denying his appeal. Thompson was convicted in 1985 of killing Brenda Lane, a 28-year-old former newspaper reporter who was abducted from a Wal-Mart parking lot in Shelbyville, Tenn., driven to a remote area and fatally stabbed with a rusty butcher knife. Thompson confessed to the crime, and a jury sentenced him to the death penalty. His case worked through state and federal courts, and after the U.S. Supreme Court declined to consider it, Tennessee set an Aug. 19, 2004, execution date. That process was stopped in June 2004, partly because of the appeals court's decision to vacate its earlier ruling. Jennifer L. Smith, an attorney representing the state, argued that federal law required the appellate court to issue a "mandate," or notice signaling the end of its authority, within seven days of the Supreme Court's decision not to take the case. The Cincinnati-based court never issued the mandate in Thompson's case, and the inmate's lawyers argued that gave the court flexibility to reconsider its decision when a judge discovered new information. While appellate Judge Richard F. Suhrheinrich was researching a law review article on capital cases, he looked over Thompson's file and found the opinion of an expert witness who believed Thompson suffered from schizophrenia. The expert's opinion had been appended into an appeal but never entered into the record. Calling the expert's opinion significant, the court withdrew its decision 18 months after denying Thompson's appeal and sent the case back to district court for an evidentiary hearing. Justice Ruth Bader Ginsburg questioned why a court couldn't reconsider an earlier decision if a judge finds a "key piece of evidence" was left out of consideration. (source: Associated Press) USA: Whither the death penalty? Last year, it turns out, wasn't a good year for the death penalty. Just 125 people were sentenced to death, less than 1/2 the number who received that sentence in 1998. The reasons for this decline aren't hard to discover. The U.S. Supreme Court, in a series of decisions, has limited the classes of people who can receive the death sentence and juries generally have seemed more reluctant to impose the death sentence, especially now that most states allow sentences of life in prison without the possibility of parole. But while it's true that death penalty opponents have had a lot of good news lately, it hasn't been entirely bleak for capital punishment supporters. On the same day the figures cited above were announced, the Supreme Court decided to review a case out of Oregon, which - if allowed to stand - could badly muddy the process juries must use before imposing the death sentence. The Oregon case revolves around Randy Lee Guzek, who was convicted of two counts of murder stemming from a 1988 burglary. Guzek and two confederates planned that burglary and also planned to kill the occupants of the home. Guzek was ultimately convicted of both murders. In one instance, he "prompted" an associate to shoot and in the other, Guzek fired 4 shots into the victim. He was sentenced to death, not once but three times. The first 2 sentences were set aside because of general federal court rulings on the submission of mitigating evidence and the taking of victim impact statements. His third death sentence was set aside last year by the Oregon Supreme Court on grounds that Guzek was denied the opportunity to submit "alibi evidence" during his sentencing phase. It is this ruling that will be reviewed by the U.S. Supreme Court, and no wonder. The Oregon Supreme Court tossed out Guzek's death sentence based on a very novel, if not nutty, interpretation of a couple of earlier U.S. Supreme Court cases. That was a mistake; the high court doesn't much like it when lower courts misapply earlier cases. In the Guzek case, it is quite clear the Oregon court went too far and almost willfully ignored the language of earlier Supreme Court cases and applicable Oregon law. In his third sentencing hearing, Guzek's attorneys attempted to introduce evidence that Guzek could not have committed the murders "because he was elsewhere at the time," according to two relatives. The court refused to allow this testimony, citing an Oregon law that says once the prosecution has presented evidence that the death penalty is warranted, the defense may introduce evidence "concerning any aspect of the defendant's character or background or any circumstance of the offense." In the typical murder case, that mitigating evidence might involve the defendant's childhood, his upbringing, his good acts, his remorse or his reluctance to be involved in the crime. In its 2004 decision, however, the Oregon Supreme Court greatly expanded the notion of what constitutes the "circumstance of the offense" to include testimony intended to show that the defendant didn't commit the crime in the first place. It doesn't take much of an imagination to guess what future defendants might be able to do should the U.S. Supreme Court rule that sentencing procedures may now include unlimited testimony on whether the defendant was even in the area where the original crime was committed. The term "unlimited" applies here because the Oregon law specifically commands the court to hear "any mitigating evidence" having to do with the "circumstance of the offense." The nation's highest court has never spoken directly to the narrow issue raised in the Oregon case, but as two dissenters on the Oregon Supreme Court have pointed out, it has spoken to two very closely related issues that leave little doubt of the outcome. As the dissenters put it, the phrase "circumstance of the offense" cannot possibly mean "revisiting the issue of guilt or innocence of the underlying offense." If it does, future sentencing hearings won't need judges as much as circus ringmasters. (source: Column, Al Knight, Denver post) VIRGINIA: Officials Say There Is No Evidence to Back Moussaoui's Story Counterterrorism officials said on Tuesday that they did not believe Zacarias Moussaoui's statements that he had been involved in a plot to fly an airplane into the White House as part of a plan to free an Islamic cleric serving a life sentence for terrorist acts. Mr. Moussaoui, in pleading guilty last Friday to 6 counts of conspiracy to engage in terrorism, insisted that although he was a member of Al Qaeda and had trained to fly planes into buildings, he was not part of the Sept. 11 attacks in New York and Washington. Instead, he said, he was preparing to participate in a different plot on a different day to free Sheik Omar Abdel Rahman, a blind Muslim scholar serving a life sentence for conspiracy to blow up New York landmarks in 1993. Prosecutors and investigators, accustomed to Mr. Moussaoui's unpredictable, often angry courtroom ramblings, were surprised by the assertions, said the counterterrorism officials, who spoke on the condition of anonymity because much of the investigation remains classified. After more than 3 years of investigation, they had never heard of or found evidence of such a plot, they said, and in the days since Mr. Moussaoui's plea, they have not uncovered any information to corroborate it. Mr. Moussaoui's statements about his plans were imprecise. He said he had planned to use a hijacked plane to fly Sheik Rahman to Afghanistan. But he also said, "I came to the United States of America to be part, O.K., of a conspiracy to use airplane as a weapon of mass destruction, a statement of fact to strike the White House, but this conspiracy was a different conspiracy than 9/11." Mr. Moussaoui has a strong motive to disassociate himself from the attacks: he faces a trial before a jury over whether he should be put to death or imprisoned for life. He told Judge Leonie M. Brinkema of Federal District Court that he would fight the death sentence and that linking him to Sept. 11 would lead the jury to hold him responsible for those killed in the attacks. Justice Department officials have insisted that Mr. Moussaoui, the only person to stand trial in the United States for the Sept. 11 attacks, was directly involved in them. They point to a statement signed by Mr. Moussaoui in connection with his guilty plea in which he acknowledged that he misled investigators the month before the attacks, when he told them he had enrolled in flight school for the pleasure of it. The authorities said that at the time of his arrest in August 2001, Mr. Moussaoui could barely have flown a small plane by himself, much less piloted a wide-bodied airliner. Prosecutors also noted, in the statement of facts that accompanied the guilty plea, that he had acknowledged a personal relationship with Osama bin Laden, who is said to have had a fondness for Mr. Moussaoui, a French citizen born in Morocco. Mr. bin Laden, by this account, had selected Mr. Moussaoui to take part in an aircraft attack and urged him to "follow his dream," which investigators said meant a suicide attack on the White House. Whether the White House was a target on Sept. 11 remains unclear. Ramzi bin al-Shibh, who helped plan the attacks, said during interrogation that from the start, Mr. bin Laden had wanted to attack the White House, according to the final report of the independent commission that investigated the attacks. But Mohamed Atta, the leader of the Sept. 11 attacks, regarded the White House as a "difficult" target, according to the report. At a meeting on Aug. 3, 2001, Mr. Atta told Mr. bin al-Shibh that he would keep the White House under consideration, but wanted to keep the Capitol as an alternative, the report said. Initially, authorities believed that Mr. Moussaoui was a backup pilot for United Airlines Flight 93, which crashed in Pennsylvania. In the months before the attack, the intended pilot of that plane, Ziad al-Jarrah, was uncertain that he wanted to participate, the officials said. After one clash with Mr. Atta, the commission report said, Khalid Sheikh Mohammed, the mastermind of the attacks, ordered Mr. bin al-Shibh to "send the skirts to Sally," a coded instruction to wire money to Mr. Moussaoui so he could begin training. Mr. Mohammed denied in his interrogations that he had ever thought of Mr. Moussaoui as part of the Sept. 11 plot, the commission report said. Mr. Mohammed said that he believed Mr. Moussaoui was to be part of a "2nd wave" of attacks that never materialized. Some investigators suspect that even though Mr. Moussaoui was a favorite of Mr. bin Laden, other Qaeda operatives regarded him as unstable and undisciplined. Beyond that, there was no evidence that Mr. Moussaoui had met the other Sept. 11 hijackers, which investigators said indicated he was not meant to take part in the attacks. (source: Associated Press) NORTH CAROLINA: Marines Testify in Iraq Murder Hearing A Marine testified that a fellow soldier accused of killing two Iraqis left a sign near their bodies bearing an "inappropriate" Marine slogan. Second Lt. Ilario Pantano, 33, has admitted to shooting the men during an April 2004 search in Mahmudiyah, Iraq. He has claimed the slayings were in self-defense. Fellow Marines testified Tuesday that Pantano shot the men in the back and put a sign near the bodies bearing a Marine slogan: "No better friend, no worse enemy." First Lt. Samuel Cunningham testified that after being told of the sign, he told Pantano to remove it, then called to have the bodies taken away by Iraqi National Guardsmen. "I was surprised," Cunningham said of the sign. "I told him it was inappropriate. ... It's just unprofessional." Cunningham called it "a death card." Testimony was to continue Wednesday in the Article 32 hearing. The case has stirred debate on whether troops should be second-guessed for split-second decisions made in combat. In the incident, Pantano's unit was ordered to search a house in Mahmudiyah, and stopped Hamaady Kareem and Tahah Ahmead Hanjil as they tried to leave a residence suspected of being a terrorist hideout. According to written charges, Pantano ordered other troops to remove the suspects' handcuffs and look away, then shot the pair in the back, vandalized their vehicle and hung the sign. A second Marine, identified only as "Corporal O" and described as a cook working to be an Arabic linguist, said the men were scared and claimed to be visiting family in the residence. In a statement, Pantano has told investigators the Iraqis had their backs to him and continued talking to each other despite warnings to be quiet. "After another time of telling them to be quiet, they quickly pivoted their bodies toward each other. They did this simultaneously, while speaking in muffled Arabic. I thought they were attacking me and I decided to fire my M-16A4 service rifle in self-defense," the statement said. "Corporal O" testified he was inside the house talking with women and children when the shooting occurred. He said they confirmed the men's story that they were visiting relatives, though on cross-examination he said it was common for Iraqis to deny involvement with the insurgency. After the hearing, Maj. Mark E. Winn will make a recommendation to the commanding general of the 2nd Marine Division about whether there is enough evidence for a court-martial. The general will then determine whether to proceed to trial or modify the charges. (source: Associated Press) *********************** Hearing Begins for Marine Accused of Killing 2 Iraqis Military prosecutors ended months of silence on Tuesday as they presented their 1st witnesses in the case of a marine accused of murder during his platoon's search of a suspected insurgent hideout near Baghdad last year. The accused marine, Second Lt. Ilario Pantano, 33, a former energy trader from New York City, could face the death penalty if formally charged and convicted of premeditated murder, the top charge that military officials are considering. Lieutenant Pantano has stated that he killed Hamaady Kareem and Tahah Ahmead Hanjil in self-defense, after they made what he perceived as a threatening move toward him, as they searched their own automobile under his order near Mahmudiyah, Iraq, about 15 miles from Baghdad, on April 15, 2004. Prosecutors made no opening statement at the preliminary hearing on Tuesday, thus giving no road map to their case. But first clues to their basis for prosecution emerged as their first witnesses gave testimony before a hearing officer. An Arabic translator who was at the scene of the killings, identified at the hearing only as Corporal O because of what officials said was his involvement with counterintelligence operations, said he questioned the two men after they were seized while leaving a house suspected of being an insurgent nest. Corporal O said that the men offered no resistance but appeared frightened, and that they denied involvement with insurgent forces. The corporal said he spoke with the men's relatives, who were outside the house in a different area, and had been gone from the pair for about a half-hour when he heard gunfire. When he returned, he said, he saw the 2 men dead on their knees, half in and half out of their sedan. "One in the front seat, one in the back seat, a door separating the two bodies, their knees on the ground," Corporal O said. "They looked like they were on their knees; they were shot in their backs." Another prosecution witness, Lt. Samuel Cunningham, testified that he and other members of his squad were stationed a distance from the house when he heard 40 to 50 shots. Maj. Stephen Keane, the lead prosecutor, asked Lieutenant Cunningham about methods of dealing with insurgents, and asked whether it was wise to have two Iraqis searching their own vehicle, as Lieutenant Pantano told investigators he had done. Lieutenant Cunningham said he would not order such a search because it would pose a security risk for him and for the insurgents. Charles Gittins, Lieutenant Pantano's civilian lawyer, said after Tuesday's hearing that his defense was not affected by the number of times Lieutenant Pantano fired, and that the position of the bodies as seen by a military translator were not germane to the case. The defense team began its case before testimony began, when it challenged the fitness of the hearing officer, Maj. Mark E. Winn, to preside. Capt. Brandon Bolling, a defense team member, asked Major Winn whether he had made disparaging remarks about defense counsel in a conversation last week. The major was also asked whether he had said that he did not want any part of hearing the case and that a military judge should be handling it. The conversation, Mr. Gittins said, took place at a bar called Kelsey's and involved a military member of the defense team. Major Winn denied having any such conversation and turned down a defense challenge to his authority. (source: New York Times) ********************* Lawyers Meet With Easley Regarding Scheduled Execution Gov. Mike Easley met Tuesday with prosecutors and defense attorneys for a former drill sergeant on death row for brutally killing a Cumberland County woman and her two children in 1991. Easley will decide whether to commute the death sentence of Earl Richmond Jr,, who is 43. Richmond's execution is scheduled for 2 a.m. May 6th at Central Prison in Raleigh. A Cumberland County jury in 1995 sentenced Richmond to die for the killings of 27-year-old Helisa Stewart Hayes, her son Phillip and her daughter Darien. He also received a life sentence for first-degree rape. The clemency arguments at Easley's office were closed to the public. Easley could commute Richmond's sentence to life in prison. Since he took office in January 2001, Easley has granted clemency to two death-row inmates. In 19 other cases, inmates have been executed, according to the state Department of Correction's web site. (source: Associated Press)
