June 27 USA: Latest reversal par for the court----5th Circuit rulings often struck down 3 times in the past 3 years, the U.S. Supreme Court has rebuked the 5th U.S. Circuit Court of Appeals' handling of death penalty cases, occasionally using blunt language to portray the New Orleans court as inattentive to legal precedents and evidence. And although those capital punishment cases have drawn a great deal of scrutiny, the reversals have continued in the 2004-05 Supreme Court term, expanding into other areas. The high court, for example, has overturned the 5th Circuit's decision sustaining the criminal conviction of accounting firm Arthur Andersen; a pay dispute involving Jackson, Miss., police officers; and 2 environmental cases. And there is one more high-profile challenge to a 5th Circuit ruling to decide. The Supreme Court is expected to rule this week whether a Ten Commandments display on the Texas State Capitol steps violates the constitutional separation of church and state. The 5th Circuit concluded that the display passed constitutional muster because the intent of the sponsoring group, the Fraternal Order of Eagles, was to push a personal code of behavior rather than to promote religious beliefs. With that case still pending, the 5th Circuit, which handles appeals from Louisiana, Texas and Mississippi, is in the running for the "most reversed appellate court" for the 2004-05 term, according to Arthur Hellmann, a law professor at the University of Pittsburgh who tracks federal court rulings. In the latest death penalty reversal, Justice David Souter expressed surprise the 5th Circuit had failed to conclude that African-Americans had been systematically excluded from the 1986 Dallas jury that found Thomas Joe Miller-El guilty of murder. Souter wrote that prosecutors used their right to strike potential jurors to reject 10 out of 11 eligible African-Americans, questioned potential black jurors more aggressively than white jurors and took cues from a manual that found black people are more resistant to the death penalty than are white people. "It blinks reality," Souter wrote, to not see that discrimination in jury selection was prevalent enough to require a new trial. In 2004, Justice Sandra Day O'Connor was equally blunt in taking the 5th Circuit to task for failing to consider Robert Tennard's reduced IQ in upholding his death penalty for killing a Houston neighbor in 1985. O'Connor said the 5th Circuit, the nation's 2nd-busiest federal appeals court, was "paying lip service" to principles of jurisprudence and that its reasoning in the case "has no foundation in the decisions of this court." David Dow, a University of Houston law professor who represents some Texas death row inmates, said it seems clear the Supreme Court "has lost confidence in the 5th Circuit's handling of capital cases. The New Orleans court's entire focus, he said, seems devoted to "trying to find a reason" why a death penalty should be sustained. "The likelihood of getting relief from the 5th Circuit approaches zero," Dow said. To be fair, Dow said, the chances of prevailing in a death penalty appeal are very slim across the country. "We are talking about the difference between hardly ever prevailing in the rest of the country and almost never prevailing in the 5th Circuit. It is a very thin distinction, but an important one," Dow said. He said the consequences are more significant in the 5th Circuit because it handles appeals from Texas, which employs the death penalty more often than any other state. In an e-mail response to questions, Carolyn Dineen King, a Carter appointee and chief judge in the 5th Circuit, said she could say little about the recent criticism from some constitutional lawyers, including Dow, who was once her clerk. "Beyond saying that generalizations about this court, or any court, are generally not fair or accurate descriptions of all the work of the court, I can't help you," she wrote. Moderates v. conservatives Douglas Laycock, a constitutional scholar at the University of Texas Law School, said moderates, led by King, have been clashing for years with conservatives appointed by Presidents Reagan, George H.W. Bush and George W. Bush. The 16-member court includes 4 justices nominated by Democratic presidents -- 1 by President Carter and 3 by President Clinton -- and 12 nominated by Republican presidents -- 5 by Reagan, 4 by the senior Bush and 3 by the current president. In recent years, he said, the conservative judges have gotten the upper hand and interpreted congressional passage of a crime bill in the mid-1990s, designed to limit delays in death penalty cases. Paul Rosenzweig, a senior fellow at the conservative Heritage Foundation, sees no evidence to support the accusations from law professors and others that the 5th Circuit is out of control and thumbing its nose at the Supreme Court on use of the death penalty. "I would characterize this as the Supreme Court doing a bit of moving the goal posts," said Rosenzweig, who contends that the high court in the Miller-El case modified its own precedent by deciding that defendants can use arguments in an appeal that they didn't make in the original trial. Rosenzweig said the 5th Circuit may have erred in denying an appellate hearing to Miller-El, which the Supreme Court reversed in 2003. But the court seemed on "sound legal ground" last year when it denied him a new trial, even if the Supreme Court disagreed, Rosenzweig said. Supreme Court Justice Clarence Thomas, writing a dissent in the Miller-El case supported by Chief Justice William Rehnquist and Justice Antonin Scalia, the three most conservative members of the court, also sided with the 5th Circuit. Thomas said that if African-Americans were excluded from the Dallas jury in a discriminatory way, as maintained by his attorneys and a majority of his colleagues on the Supreme Court, then Miller-El and his attorneys should have raised the issue earlier. "The state courts held two hearings, but despite ample opportunity, Miller-El presented little evidence that discrimination occurred during jury selection," Thomas wrote. "In view of the evidence actually presented to the Texas courts, their conclusion that the state did not discriminate was eminently reasonable." Jury instructions Even among the justices on the 5th Circuit, there has been controversy about some of the majority decisions in death penalty cases. In 2003, the 5th Circuit upheld the murder conviction of Mark Robertson for killing a friend and the friend's grandmother, earning him the death penalty for the latter killing. The 5th Circuit upheld the death penalty, even though the jury instructions used in the case were declared unconstitutional in an earlier ruling by the Supreme Court. In an opinion by Judge Edith Jones, a Reagan appointee, the 5th Circuit ruled that the Supreme Court decision wasn't meant to apply to all cases in which the questionable instructions were issued. That drew a slap in a dissenting opinion written by Judge Harold DeMoss Jr., an appointee of the 1st President Bush. "I have to conclude that the Supreme Court is telling us we reached the wrong result in the panel decision," DeMoss wrote. "And, when the Supreme Court vacates and remands this case to us, I am amazed that our . . . court would have the audacity to turn around and reach the same result the Supreme Court just vacated." The newest justice on the 5th Circuit, and perhaps its most famous member, Priscilla Owen, was sworn in earlier this month, winning confirmation after Democrats in the Senate had blocked her nomination for 4 years. Called a brilliant jurist by supporters and vilified as out of the mainstream by critics, her views in death penalty cases aren't known. As a justice on the Texas Supreme Court for more than a decade, Owen did not rule on death penalty cases because in Texas they are assigned to a separate appellate court. 5 rulings struck down The 5th Circuit record for this term includes Supreme Court rulings that the New Orleans court: -- Was wrong to conclude that the manufacturers of pesticides and weed killers cannot be sued and forced to pay damages when their products cause damages. -- Erred in sustaining a criminal conviction of Arthur Andersen for destroying documents related to the financial ruin of Enron, the once giant energy company. The Supreme Court ruling came too late for Arthur Andersen, which was forced to shut down after the criminal conviction. -- Was mistaken to allow a Texas firm to collect environmental contamination cleanup costs through the federal Superfund law from the company responsible for the toxic waste. In that case, the 5th Circuit appeared more liberal in its judicial philosophy than the Supreme Court. -- Erred in deciding that employees cannot sue under federal age discrimination prohibitions for adverse pay consequences if their employer did not actually intend to discriminate. The case involved senior police officers in the Jackson, Miss., Police Department. -- Made a mistake in not ordering a new trial for Miller-El because prosecutors had effectively excluded black jurors from the panel that convicted him of murder and imposed the death penalty. (source: Times-Picayune) ILLINOIS: A confession? Be cautious Robert Milan learned the warning signs of a bad confession the hard way--he experienced it firsthand. Milan, second in command in the office of Cook County State's Atty. Dick Devine, was involved in the case of Corethian Bell, a young man who confessed on videotape that he had killed his mother. Prosecutors thought they had a slam-dunk case--until DNA evidence implicated a different man in the murder. Bell was freed. Milan could have made excuses, could have taken his lumps and moved on. Instead, he turned the story of Corethian Bell into a learning tool for prosecutors. He now uses the videotaped confession by Bell at regular training sessions he conducts with prosecutors here and out of state. The 1st lesson of those training sessions is this: People sometimes confess to crimes they didn't commit. Kevin Fox confessed on videotape, after a more than 14-hour interrogation, to the rape and murder of his 3-year-old daughter, Riley. But he was released last week after DNA tests failed to link him to the crime. Right now, the top priority for Will County law enforcement officials is to identify Riley Fox's killer. After that, it should be to identify what went wrong in the Fox interrogation and figure out whether interrogators acted improperly. And learn how to avoid the next false confession. A close examination of the final videotaped statement of Fox would be a good place to start. Would someone who had completed Milan's training session have made a similar mistake? That's hard to say. But it's worth taking a look at what Milan has learned and what he imparts to prosecutors. He provides a sound guide for prosecutors, as well as for any of us who try to weigh likely guilt or innocence in a high-profile crime. Milan elaborated on his finds in an article published earlier this year in The Practical Prosecutor magazine. Among his lessons: - Beware of clean rap sheets. "If his criminal history is incompatible with this crime, give the case a closer look." - Beware of what happened at the very beginning of the investigation. Was the suspect identified through a detective's confidential informant? By an eyewitness who picked out his mug shot? Many wrongful prosecutions go awry at the outset of the investigation. Prosecutors should interview those informants or eyewitnesses themselves. They should visit the scene to determine whether the witness could have seen the crime and the suspects. - Beware of "single finger" identifications. Even the seemingly most confident witness can get it wrong. Best not to hang the case solely on that. "Many of the wrongful conviction cases that have occurred across the country were the result of misidentification by well-meaning witnesses," Milan wrote. Prosecutors should try to corroborate any witness's story with other concrete evidence. - Beware of charging a suspect before all the physical evidence is tested. "Uninformed decisions lead to wrongful convictions." - Beware of cases where co-defendants have no connection to each other. "If you cannot [find a connection] you may have a serious problem with your case." - Beware of confessions from young adults, juveniles and those with very low IQs. Prosecutors should do their own interviews and tests of the suspects to determine mental competence. "If the confession does not make sense in light of the physical evidence and other evidence you have, you may have a problem." - Beware of alibis that can't be disproved. Two witnesses may identify a suspect from a lineup. Even then, if the suspect's alibi stands up, proceed cautiously. This isn't a prescription to avoid prosecutions. It's a cautionary note about the most dangerous patterns that can lead to wrongful convictions. As police and prosecutors in Will County are learning, and as Robert Milan learned long ago, nothing poses a greater threat to public confidence in law enforcement than a case that unravels before our eyes. (source: Editorial, Chicago Tribune) CALIFORNIA: Story of last execution in Napa won't leave you hanging----Museum sits inside new sheriff's building Tucked away on the bottom floor of the new Napa County Sheriff's Department facility is a tiny museum with a big story to tell - the last execution by hanging carried out by a California county. William Roe - or Rowe, depending on which official documents you read - died at the end of a noose in 1897 for the murder of a local rancher's wife. It was the last execution carried out by a county before the job was turned over to the state and San Quentin State Prison. When the sheriff's department built its new facility in the Napa County Airport industrial area this year, a small room was turned over to retired deputy and history buff Richard Andersen to display of some of the department's artifacts. He chose to recreate the original Napa County Sheriff's Office and prominently feature the actual gallows used to execute Roe. "The gallows were found in the attic of the old (Napa County) courthouse," sheriff's Capt. Gene Lyerla said, adding that the wooden structure was never really lost, just forgotten. "They are rediscovered about every 30 years," he said. "We decided to put them in a safe, secure place." The exhibit includes photographs of the condemned man just before, during and after the hanging. Also on display is the actual noose, binding straps, engraved invitations to the execution, Roe's handwritten confession and other historical items associated with the event. The dropping platform the prisoner steps on still bears the painted footprints designed to show where the condemned should place his feet to ensure the best chance of a fast end by broken neck rather than a slow, strangling death. "Those (footprints) were the last things Mr. Roe saw in his life," Lyerla said. Roe's long journey to the hangman's noose started in 1891 when he and a companion approached John Greenwood, a former sea captain and owner of the Greenwood Ranch that once covered the area where the airport industrial area is now located. According to an account in the old Vallejo Evening Chronicle, Greenwood said the pair first asked him for work and then food. When offered neither, they pulled pistols and demanded money. They took the rancher into the house - the same one that now sits at the entrance to the airport area - and tied him to a chair after administering some kind of drug. About that time, Greenwood's wife Mary entered the ranch in a wagon. The assailants dragged her into the house, drugged her and tied her to a chair as well. They once again demanded money. The men then forced Mary Greenwood into a bedroom and started ransacking the house. They took Greenwood into the front hall and left in the wagon. The rancher was able to free his feet and make his way to the bedroom where his wife lay bound and unconscious. Unable to wake or free her, he fell. When he awoke, Roe and his accomplice had returned. They dragged him back into the hall and shot him twice in the head. "I heard a shot after they shot me; then they went away," Greenwood told the Chronicle. "I had no idea they were shooting my wife. I thought it was the dog. "I saw or heard no more of them. I could hear every stroke of the clock from then till morning as I lay there." While Greenwood's wife had been killed, it turned out that the rancher himself was not even seriously injured. One bullet had entered his cheek and passed out the opposite side. The 2nd struck the top of his skull and came out the back of his neck. Roe was captured 5 years later in Denver after bragging to a woman he hoped to marry that he was wanted for murder. She turned him in and claimed the reward. Roe was executed for the crime outside the Napa County Courthouse where a tent was set up, and engraved invitations were issued for the event. (source: Vallejo Times-Herald) INDIANA: Prohibit executions of the mentally ill Joe Corcoran's case is back in the news, and I don't think I ever covered a sadder one. I don't say that just because of the innocent lives he snuffed out - but because it was all so preventable. The facts of Corcorans case are well known. One July evening in 1997 he killed his brother and three other guys at his sisters northside home. Judge Fran Gull sentenced him to die. Corcoran refused to seek the appeals he was entitled to. The judge, in a later hearing, found Corcoran competent to make that decision. Corcoran changed his mind, but the state Supreme Court said it was too late. Now the court has set a date. Unless a federal court intervenes, Corcoran will be executed July 21. I'm not the only person who wonders why Indiana wont execute a person who is retarded or a juvenile but will allow the execution of persons as mentally ill as Joe Corcoran. At least 4 others out of the 20 now on death row have a major mental illness. I've followed the Corcoran case closely from the day after his arrest. I talked with Judge Gull a few days later and told her anybody who killed four people because he thought they were talking about him had to be psychotic. I just assumed she agreed. A federal judge who also followed the case told me the same thing over lunch. I wrote editorials and columns about it. I interviewed Corcoran at length several times. I interviewed his sisters, including one long session in the living room where the murders took place. I interviewed his attorneys and the experts who examined Corcoran and concluded that he is paranoid schizophrenic - as severe a mental illness as it gets. I don't excuse what he did. It was a horrible, senseless crime. Given his history and the nature of his illness, I have no problem seeing him locked up for life. And although I doubt it will ease their anger and hurt, I'm sure the victims' families wont mind seeing Corcoran executed. But this tragedy has a long history, going back to Corcorans childhood. His brother Jim used to say, "There's something wrong with Joe." Indeed. A very bright kid, Joe Corcoran rigged an alarm on his bedroom door at age 6. He abused animals. As a teenager, he threatened to shoot a friends father who caught the boy shooting cats. All alarm bells. Corcorans mothers handwritten diary recounts her obsessive worries about him and the bizarre things he said and did. But even after years living with this disturbed young man, the parents did not seek to have him evaluated by a psychiatrist or enlist the advice of a counselor. They just didn't understand. When Corcoran was 16, his older sister Kim stopped by their parents' Ball Lake home in Steuben County for a brief visit. She found to her horror that their father and mother had been shot to death. Corcoran had calmly gone to the bus stop and went to school. Twin sisters Kim and Kelly told me they thought the police had botched the investigation into their parents' murders. And neither seemed very sure that Corcoran had in fact killed their parents. Jim Corcoran, who had been away in the Marines, was pretty sure he had. (Years later, when I visited Joe Corcoran at the Michigan City prison, I asked him if he had killed his parents. He nodded yes.) In the trial for the deaths of his parents, Corcoran was acquitted. Then he moved to Fort Wayne to live with sister Kelly. At this time, his illness appeared to be full blown. When he was working with Kelly, he once tried to strangle her. He assembled a veritable arsenal in his bedroom and would answer the door with a gun in his hand. He could be unconsolable over the death of the family pet. But he could seem without any empathy toward the suffering of another person. After his parents were killed, a psychologist evaluated Corcoran. He then found the boy to be mentally ill. But no therapy followed. No wonder. Neither the defense nor the prosecuting attorney advised the sisters of Corcorans illness so they could get him help. When Corcoran was awaiting sentencing for the killings in Fort Wayne, I showed them that experts report. They both appeared shocked. They hadnt a clue how sick Corcoran was. If there ever was a case for diagnosing and treating a child who exhibited the signs of mental illness, it's Joe Corcoran. 6 people died. Totally, utterly needlessly. And soon to be a 7th. Whatever the specifics of Corcoran's illness, I think most people, including the family members of his victims, understood that he was in some way a diminished person and not fully responsible for what he did. Before his trial, prosecutor Bob Gevers offered him a plea bargain. He would have avoided the death penalty and gotten life without parole. But defense attorney John Nimmo couldnt talk Corcoran into taking the deal. "He wanted to see the show," Nimmo told me. And I recall only one of the 5 or 6 family members who testified at the sentencing urged the judge to follow the jury's recommendation to sentence Corcoran to die. Days before that hearing, when I spoke on the phone with the jury foreman, he said if Judge Gull ignored the jury's recommendation and gave Corcoran life in prison without the possibility of parole, he would still feel that justice had been done. I wish judges, attorneys and state officials understood more about mental illness. Most of these folks aren't dangerous. Corcoran is an exception. I doubt if he's any more evil than the next human being. But he's very, very sick. I saw it in my interviews with him. I saw it in the videotape of his confession to detectives that awful night in July. Half a dozen experts can't be wrong: His delusions are quite real to him. Yet his intelligence permits him to deny his illness and, when he pulls it all together, to appear normal. I'm not optimistic that a federal court will intervene and spare Corcoran's life. But I hope the state will use the occasion of his death to take up the execution of the severely mentally ill and exempt those who suffer from the death penalty. I believe most Hoosiers, including the foreman of Corcorans jury, would see that as justice. (source: Fort Wayne Journal Gazette -- Larry Hayes is the retired editorial page editor and columnist for The Journal Gazette)
