May 24 INDIANA: Death sentence tainted, say lawyers for cop killer A man scheduled to be executed next month for killing a Muncie police officer deserves clemency, his attorneys say, because the jury improperly heard family and colleagues give statements about the victim. Attorneys for Michael Lambert say those statements tainted the jury. The state Supreme Court already has ruled that the jury should not have heard statements from the widow of Officer Gregg Winters about the effect of her husband's death on her family. But the Supreme Court concluded the aggravating circumstances outweighed the mitigating circumstances and affirmed the death sentence. Lambert's attorneys contend that is not fair. "They found error, but they wouldn't give him any relief on that," attorney Alan Freedman said Monday. Lambert is scheduled to be executed June 22 for the Dec. 28, 1990, shooting of Winters. The shooting occurred after police arrested Lambert for public intoxication, briefly patted him down and put him in the back seat of Winters' cruiser. A few minutes later, 2 officers watched as Winters' approaching car suddenly slid off the road. Winters had been shot 5 times in his head and neck. Lambert's attorneys contend in his clemency request that he would be the 1st person executed in Indiana based on an invalid jury recommendation. The clemency request also contends he was sentenced before Indiana's rules setting standards for adequate defense attorneys for people facing the death penalty. His attorneys contend use of the death penalty is arbitrary; 14 people who killed police officers in Indiana since 1981 have not faced execution. They also contend Lambert has a history of mental illness and was very drunk at the time of the shooting. Lambert is scheduled to present his clemency request to the Parole Board at the Indiana State Prison on June 13. The board is scheduled to hold a public hearing June 17 and make a nonbinding recommendation later that day. The state has executed two people this year, and Gregory Scott Johnson is to be executed early Wednesday. Indiana has not executed more than 2 people in a year since the death penalty was reinstituted in 1977. ************************* Governor lets execution proceed Gov. Daniels' statement "In view of the family relationship, I accepted the sincerity of Mr. Johnsons motivation in making this offer. If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request. But ultimately I was not faced with that decision. The advice of medical experts, including Debra Otis own specialist, was definitive that she should not pursue a procedure with Mr. Johnson as donor, but rather will be better served by accepting transplanted organs through the conventional process." (source for both: Associated Press) ************************************** Gov. Mitch Daniels denied clemency or a reprieve for convicted murderer Gregory Scott Johnson today, just hours before he was to be executed for the beating death of an Anderson woman. Daniels said he found "no grounds to second guess years of court rulings or to reject the recommendation of the parole board." That board voted unanimously on Friday to recommend that Daniels deny clemency or a request that Johnson receive a 90 day reprieve so he could donate part of his liver to an ailing sister. Daniels said he accepted the sincerity of Johnsons motivation in offering to donate part of his liver, but said medical experts had advised against, saying Johnsons sister would be better served by accepting a new organ through the conventional process. Johnson, 40, is scheduled to die by lethal injection early Wednesday for the beating death of 82 year old Ruby Hutslar. He was convicted of breaking into her home in 1985, beating and stomping on her, then setting her house on fire to hide his crime. The state attorney generals office says he fully admitted to the murder originally, but changed his story after his conviction. During a hearing before the parole board last week, he denied killing Hutslar but said he was in the house with an accomplice and set the fire. (source: Indianapolis Star) **************************************** Death-row donation request raises ethical concerns This Michiana Point of View was submitted before the Indiana Parole Board's May 20 recommendation that the governor deny clemency to convicted murderer Gregory Scott Johnson. -- Editor As Gregory Johnson faces execution at the Indiana State Prison in Michigan City on Wednesday, he has asked to donate his liver to his sister, who is dying of liver failure. Should he be able to do so? There is much to be said in favor of supporting his decision. Most importantly, Johnson could save the life of his sister. The donation also would permit him to make some atonement for the murder he committed. Allowing him to donate might draw needed attention to the tragic shortage of organs for transplantation in this country. It could even be argued that since he is scheduled to die anyway, he should not be deprived of the right to make a donation. Important as these considerations are, on closer examination, we believe that serious ethical concerns should preclude this donation, whether before or after the execution. Taking his liver before the execution would kill him, and we cannot take one person's life to save the life of another person. Johnson has suggested a "split liver" procedure, in which he would donate part of his liver before the execution, leaving both his sister and him with sufficient liver tissue to survive. However, the split liver procedure is very risky for both donor and recipient and not an option for most liver transplants. Doctors also cannot take his liver after his execution. At a minimum there remain some questions about the effect on Johnson's liver from the lethal drugs that would execute him. In addition, the liver would have to be removed very quickly after death, while it is still vital. In Johnson's case, that would require his execution to take place in an operating room. But medicine is a healing profession, and it would compromise that essential ethic to have executions take place in a hospital. Although Johnson's proposed donation should not go forward, we should consider whether other condemned prisoners might have that option. What if another death row inmate wanted to donate a kidney or what if another inmate could undergo a split liver procedure? There are serious issues of voluntary consent, the morality of medicine, and the integrity of the criminal process that require attention. Concerns about consent arise especially with the "split liver" procedure. As mentioned, it poses serious risk for both the donor and recipient, risk that many people would not choose to assume. Most prisoners on death row however, will do whatever they can to forestall their execution. Intended recipients might also agree to a split liver procedure and unduly risk their lives, in the hope that it would help the donor gain clemency. These factors suggest that the standards for a voluntary, informed consent (for both donor and recipient) may not be met. Death row donations may also threaten the morality of medicine. As the ethics code of the American Medical Association indicates, there is an important consensus in medicine that physicians should not be complicit in executions. Yet doctors would have to coordinate their organ retrieval with prison officials, and that makes it very difficult to maintain a separation between the execution and the surgery. Finally, death row donations may threaten the integrity of the criminal process. How would the possibility of organ donation affect decisions by the governor and the courts as they weigh requests for clemency? What if another inmate, as Johnson has done, requests a delay in the date of execution to accommodate necessary medical tests? More fundamentally, by permitting an execution to go forward, the governor and the courts could ensure that the inmate's organ would become available to save a family member's life. The subconscious influence of that possibility might distort their judgment. Or juries in future death penalty cases might be more willing to impose a death sentence if they thought a murderer's organs could be donated after death. Perhaps the concerns we have raised might be overcome with the adoption of strict safeguards to avoid abuse. Indeed, not all of these concerns are unique to organ donation by death row inmates. We encourage careful thought and reflection on this and cases like it. While it is difficult to draw lessons from exceptional cases like this, it is not difficult to recognize that this case presents society with an unusual confluence of two of our most profound ethical and legal challenges: the ethics of organ donation and the ethics of capital punishment. (source: Dr. David Orentlicher is co-director of the Center for Law and Health at Indiana University School of Law, Core Faculty at the Indiana University Center for Bioethics, and a state representative. Eric M. Meslin is director of the Indiana University Center for Bioethics and Assistant Dean for Bioethics at the Indiana University School of Medicine. Both men reside in Indianapolis. (source: Op-Ed; South Bend Tribune) TEXAS: Justices dismiss Mexican's appeal of death penalty The Supreme Court on Monday turned aside an appeal by a Mexican citizen on death row in Texas who contended he and 51 other Mexicans should have their death sentences overturned because they were improperly denied legal help from their consulates in violation of international law. In an unsigned decision, justices dismissed as premature the case of Jose Medellin, who argued he was entitled to a federal court hearing on whether his rights were violated when a Texas court tried and sentenced him to death in 1994 on rape and murder charges without consular access. The court cited a last-minute maneuver by President Bush ordering state courts to revisit the issue, making Supreme Court intervention unnecessary at this time. It reserved the right to hear the appeal again once the case had run its full course in state court. "In light of the possibility that the Texas courts will provide Medellin with the review he seeks," the opinion stated, "we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented." The case, which attracted worldwide attention, was seen as a test of how much weight the Supreme Court would give in domestic death penalty cases to the International Court of Justice, or ICJ, in The Hague, which ruled last year that the 51 convictions violated the 1963 Vienna Convention. In 1969, the Senate ratified the Vienna Convention, which requires consular access for Americans detained abroad and foreigners arrested in the United States. The Constitution states that U.S. treaties "shall be the supreme law of the land," but does not make clear who interprets them. The case, however, took an unexpected turn in February when Bush ordered states to comply with the ICJ ruling and hold new hearings. At the same time, the administration made clear it was Bush's decision - not the judiciary branch's - decision whether to comply with international law. To avoid future questions about the role of international tribunals in domestic death penalty cases, the administration also announced it was withdrawing from the portion of the Vienna Convention that gave the ICJ authority to hear U.S. disputes. After that decision, lawyers for Medellin urged justices to hold the case without dismissing it so that they could pursue relief in state court first. Texas, meanwhile, asked the high court to rule that Medellin had no right to a federal court hearing because he failed to raise objections about consular access at his state trial. With the court's move to dismiss the case, Medellin retains the option to raise his claims in federal court later should he lose again in the new state hearing. Texas has already said it believes Bush has no authority to order states to hold new hearings, raising questions as to whether states will choose to comply. (source: Associated Press) ********************** Justices, for Now, Rebuff Mexican on Appeal of Death Sentence The Supreme Court today turned away as premature the appeal of a Mexican on death row in Texas whose case has attracted international attention because he was convicted and sentenced long before officials of his country were notified of his situation. In an unsigned 5-to-4 ruling, the court held that Jos Ernesto Medelln had not yet exhausted all his appellate avenues in the state courts. The decision sends the case back to the Texas courts, although justices on both sides today made it clear that they would not be surprised if it ultimately came back to them. The case of Mr. Medelln, who was 18 when he took part in the gang rape and slayings of 2 teen-age girls in the Houston area in 1993, has been closely followed because he is one of 51 Mexicans in several states who are under death sentences. Capital punishment is an issue that has divided the United States and some of its closest allies in recent years, with the execution of Mexicans in Texas a particular sore point. The Supreme Court decision today means the cases of Mr. Medelln, and probably the other 50 Mexican citizens, will continue to draw judicial and diplomatic scrutiny. The Vienna Convention, which the United States embraced in 1969, requires the authorities of a government detaining a foreign citizen to act "without delay" in notifying the prisoner of the right to seek help from a consul of his home country. Mexico sued the United States in the World Court last year on behalf of Mr. Medelln and the other 50 Mexican nationals. The United States opposed the suit, arguing that Mexico's suit amounted to an unacceptable intrusion into the American criminal justice system. In ruling for Mexico, the World Court said the United States should provide an "effective review" of all 51 cases. Before the World Court ruling, the Texas courts had seemingly disposed of the case, with the Texas Supreme Court having affirmed the conviction and sentence. But President Bush said early this year that the United States would comply with the World Court ruling and see to it that the 51 defendants got new reviews. The president's pledge was cited by the majority today in the decision that the justices did not have to decide Mr. Medelln's case at this time. The four justices in the minority would have sent the case back to the United States Court of Appeals for the Fifth Circuit, in New Orleans, rather than to the Texas state courts, for further review. The Fifth Circuit has already ruled against Mr. Medelln, in part because he failed to raise the treaty issues at his 1994 trial. The five in the majority were Chief Justice William H. Rehnquist and Justices Clarence Thomas, Anthony M. Kennedy, Ruth Bader Ginsburg and Antonin Scalia. They noted that the trial judge found that Mr. Medelln had "failed to show that he was harmed" by the lack of notification of the Mexican authorities. While not ruling on the merits of the defense's case, the majority observed that "the police officers informed Medelln of his right to legal representation before he confessed to involvement in the murders." They noted, too, that "Medelln does not challenge the voluntary nature of his confession," given shortly after his arrest. The 4 who would have sent the case back to the Fifth Circuit were Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Stephen G. Breyer. In an opinion written by Justice O'Connor, the minority asserted that it was only "speculation" that the defendant might get relief in new state court proceedings. "It seems to me unsound to avoid questions of national importance when they are bound to recur," Justice O'Connor wrote. But Justice Ginsburg, in an opinion concurring with the unsigned majority decision, said the Texas courts are in the best position to review the case now. "In turn, it will be this court's responsibility, at the proper time and if need be, to provide the ultimate answers," she wrote. The case is Medelln v. Dretke, No. 04-5928. (Doug Dretke was named as director of the Texas prison system.) Mr. Medelln was one of five gang members charged with capital murder in the deaths of the girls, aged 14 and 16, who were raped, then kicked, beaten and strangled. Two defendants were sentenced to die but escaped execution because of the Supreme Court's recent ruling that prohibited the execution of defendants who were under 18 at the time of their crimes. Another defendant was Mr. Medelln's brother, Venancio, who was 14 at the time. He was sentenced to 40 years in prison. At his 1994 trial, Jos Medelln was given a court-appointed lawyer who called no witnesses. At the penalty phase of the trial, which lasted two hours, the lawyer called only one expert witness, a psychologist who had never met the defendant. (source:New York Times) NEVADA: Nevada defender reacts to death sentence ruling The U.S. Supreme Court's decision Monday to turn aside an appeal from a condemned inmate in Texas who claimed international law violations doesn't mean an end to the issue that affects dozens of death row convicts, a federal defender in Nevada said. The high court ruling involved an appeal by a Mexican citizen who contended he and 50 other inmates around the country should have their death sentences overturned because they were improperly denied legal help from their consulates in violation of international law. Michael Pescetta, who specializes in death penalty cases, said the high court's ruling "didn't resolve anything. The issue is still alive for any foreign national who has a violation of the consular notification treaty." "We will continue to litigate that issue in the cases where it has arisen," Pescetta said. He added there are five Nevada death row inmates who might have an appeal based on the consulate issue: Avram Nika, Jose Echavarria, Carlos Gutierrez, Siaosi Vanisi and Fernando Hernandez. In an unsigned decision, the U.S. Supreme Court dismissed as premature the case of Jose Medellin, who argued he was entitled to a federal court hearing on whether his rights were violated when a Texas court tried and sentenced him to death in 1994 on rape and murder charges without consular access. The court cited a last-minute maneuver by President Bush ordering state courts to revisit the issue, making Supreme Court intervention unnecessary at this time. It reserved the right to hear the appeal again once the case had run its full course in state court. The case, which attracted worldwide attention, was seen as a test of how much weight the Supreme Court would give in domestic death penalty cases to the International Court of Justice, or ICJ, in The Hague, which ruled last year that the 51 convictions violated the 1963 Vienna Convention. In 1969, the Senate ratified the Vienna Convention, which requires consular access for Americans detained abroad and foreigners arrested in the United States. The Constitution states that U.S. treaties "shall be the supreme law of the land," but does not make clear who interprets them. (source: Las Vegas Sun) OKLAHOMA: Shades of gray: Death sentence standards narrow A Comanche County jury found no shades of gray in the 2003 murder of a state trooper. Jurors last week quickly convicted the killer and recommended that he die for the crime. Such black-and-white cases are getting harder to find. Capital punishment opponents and judges have introduced all kinds of gray matter. In the same week Ricky Ray Malone was convicted of killing trooper Nikky Joe Green, a killer scheduled to be executed in McAlester was granted a stay based on one of those gray matters. Garry Thomas Allen will go before another jury, 18 years after being sentenced to die for murdering his wife. The jury will be asked to determine if Allen is mentally competent. A physician who examined Allen said he is no longer that way. We wonder if spending nearly 20 years on death row would leave anyone with his wits about him. Indeed, defense attorneys elsewhere have made the claim that life on death row makes one so crazy he can't be lawfully executed. Thus, the people who help killers extend their time on death row can subsequently claim that so much time waiting for an execution has left them incapacitated. "Eligibility" standards for executions are growing more narrow. These standards include the age of the defendant at the time of the crime, his nationality and, as we've just witnessed, his mental capacity. Even then killers agree to waive appeals, they are said to be insanely engaging in consensual suicide. This was said of Timothy McVeigh. The popularity of shows such as "CSI" is said to be influencing jurors away from recommending the ultimate penalty because they believe all murder cases should include irrefutable scientific evidence. Such evidence isn't always available, but killers can't be excused merely because a case doesn't meet the "CSI" test. (source: Editorial, Oklahoman) ILLINOIS----new death sentence Jurors order death for Chicago podiatrist convicted of murder A Chicago podiatrist was condemned to die Monday for shooting a disabled woman to death to keep her from testifying against him in a Medicare fraud case. The same jury that found Ronald Mikos guilty in federal court May 5 voted unanimously to sentence him to death. Mikos was convicted of killing disabled nurse Joyce Brannon only days before she was scheduled to tell a federal grand jury about how he had defrauded Medicare by claiming to have performed numerous surgeries on her that never actually took place. The stocky, crewcut Mikos sat at the defense table with folded hands and showed no emotion when the jurors delivered their verdict. U.S. District Judge Ronald Guzman must now follow the jury's decision and sentence Mikos to capital punishment. That sentence can be appealed. The jury began deliberating Wednesday and told Guzman on Thursday that they hadn't reached a unanimous verdict. They took Friday and the weekend off, then reached their verdict Monday. At his trial, Mikos was convicted not only of murder but also of defrauding Medicare out of more than $1 million. (source: Associated Press) CONNECTICUT: Revenge and the death penalty The march toward capital punishment in traditionally progressive New England -- Governor Mitt Romney's push to reinstate the death penalty in Massachusetts where it has not been used since 1947, as well as Connecticut's recent execution of serial killer Michael Ross -- has sparked an intense and largely predictable debate. On one side are those who say that the worst of criminals deserve the worst of punishments; on the other side are those who argue that we are all tarnished when the state kills in our name. If I had to vote on a death penalty law, I would probably vote against it because the problems with its fair enforcement are too great. But much of the deeper philosophical opposition to capital punishment is based on muddled arguments that reflect a misunderstanding of the purpose of criminal justice, a misunderstanding that also gets in the way of effective death penalty alternatives. Take the notion that capital punishment is wrong because it amounts to "state-sponsored killing" and that, in executing a murderer, the state is doing the same thing of which the murderer is guilty. In fact, any non-anarchist society authorizes the government and its agents to perform certain acts that would be illegal if committed by a private person -- specifically, the use of force. Only the most hardcore libertarians would call all taxation "state-sponsored theft" (and very few anti-death penalty liberals would agree). And even the most dedicated civil libertarians don't condemn all arrest and imprisonment as "state-sponsored kidnapping." Arguably, taking a life is radically different from other forms of force. But confining someone to a 6-by-6 cell for life is still a pretty drastic form of coercion. If a private individual did this to an innocent person, we would be horrified, and we would go on to inflict the same fate, lawfully, on that individual. Another common argument is that the death penalty is bad because it's based on revenge. In an article decrying Romney's death penalty proposal in The Oakland Tribune , Oakland-based pastor and syndicated columnist Byron Williams notes that safeguards against wrongful execution do not address the issue of "state-sponsored retribution." Yet retribution is also present in other forms of punishment -- particularly life imprisonment, which clearly does not have rehabilitation as a goal. In part, we imprison criminals to prevent future crimes. But is it the only reason? Former Nazi concentration camp guards and other war criminals leading ordinary lives in our midst arguably pose no threat; yet we still want them brought to justice. Conservative defenders of the death penalty, such as political scholar Walter Berns, have a point when they argue that one goal of punishment is to restore the moral balance violated by the crime. One liberal dissenter from the standard antiretribution rhetoric is writer Susan Jacoby, whose thought-provoking 1983 book, ''Wild Justice: The Evolution of Revenge," remains relevant today. Jacoby argues that while the death penalty is beneath a civilized society, retribution -- the desire to make offenders "pay" for their crimes, to express our moral outrage at their acts -- is an important purpose of the justice system. The death penalty is not the only way, and perhaps not even the best way, to achieve this goal. Jacoby treats revenge and retribution as synonymous, but there is a subtle difference. Vengeance is primarily concerned with the avenger's grievance: It may target a wrongdoer's loved ones, or a person who has caused an accidental death but is faultless or at worst negligent. Retribution, on the other hand, addresses moral culpability (one reason the execution of people with diminished mental capacity is generally seen as especially barbaric). On the other side of the moral ledger, however, is the possibility of executing an innocent person. Given all the mistakes and betrayals of trust that we know about, and the many we don't, empowering the state to end someone's life seems far too drastic. The safeguards proposed by Romney, including a requirement of absolute proof of guilt rather than guilt "beyond a reasonable doubt," could open a new can of worms: If we don't have enough assurance of guilt to execute someone, is life imprisonment really acceptable? On the other hand, this is one instance in which imperfections cannot be tolerated: The price is too high and the decision too irreversible. Without strong evidence that the death penalty saves innocent lives, one innocent person executed is one too many. Death penalty opponents have a strong case. But as long as they deny the legitimacy of retribution, their arguments are likely to fall flat. (source: Opinion; Cathy Young is a contributing editor at Reason magazine. Her column appears regularly in the Boston Globe)
