July 5 TEXAS: 5th Circuit Court rules in its own way----Its decisions have a history of defying the Supreme Court AT A GLANCE----About the 5th U.S. Circuit Court of Appeals: -Home: Based in New Orleans, serves the region comprising Texas, Louisiana and Mississippi. -Cases: A court of appeals hears appeals from the district courts within its circuit, as well as appeals from decisions of federal administrative agencies. -Judges: The 5th Circuit Court has 17 active judges, but nearly all cases are handled by three-judge panels. Occasionally, the entire court sits en banc to consider a case. DEFIANT HISTORY In at least 6 cases in the past 5 years, the U.S. Supreme Court has rebuked the 5th U.S. Circuit Court of Appeals for not following the law laid down by the higher court in death-penalty cases. -June 2001: Supreme Court overturns the 5th Circuit Court for the 2nd time in the case of Texas killer Johnny Paul Penry. The high court said in a 6-3 ruling that the lower court failed to enforce the spirit of its 1989 decision in the same case requiring juries to consider evidence that could lead to a life sentence rather than death. -February 2003: The court finds in an 8-1 decision that the 5th Circuit should have given Thomas Miller-El a chance to appeal his capital murder conviction. The court explicitly outlines how the 5th Circuit should analyze the case. -February 2004: Citing what it calls prosecutorial misconduct, the Supreme Court throws out the sentence of Delma Banks Jr. Ruling 7-2, the court says Bowie County prosecutors allowed 2 key witnesses to lie to the jury and did not tell the defense that one witness was a paid police informant and the other a 2-time felon whose arson charge was dropped in exchange for his testimony. -June 2004: The Supreme Court rejects a method of review devised by the 5th Circuit Court for cases in which the accused has low intelligence. In a 6-3 ruling in the case of Robert Tennard, the court says the test "has no foundation in the decisions of this court." -June 15: The Supreme Court again reverses the 5th Circuit in the Miller-El case, saying in a 6-3 ruling that the lower court's reasoning "blinks reality." During oral arguments, the justices express displeasure that the 5th Circuit adopted the reasoning of the lone dissenting opinion in the Supreme Court's previous rebuke to the lower court. Even with its reputation for being unfriendly to death penalty appeals, the 5th U.S. Circuit Court of Appeals was expected to follow directions last year when they came from the U.S. Supreme Court. The high court had issued at least 3 opinions chastising the lower court for failing to abide by previous rulings. Most recently, in an 8-1 decision in 2003, it had lambasted the appeals court for rejecting an appeal by condemned murderer Thomas Miller-El and sent it back for a new hearing. So observers were floored when the 5th Circuit issued a new opinion in the Miller-El case that ignored a majority ruling spelling out how the lower court should rule. Even more surprisingly, the lower court used the language of the lone dissenting justice, Clarence Thomas, in some cases lifting entire paragraphs without attribution. That instance convinced many that the lower court had crossed a line and was openly defying the Supreme Court. "It's extraordinary," said Neil Siegel, assistant professor of law and political science at Duke University. "They got smacked down once and they came back with what was verbatim from the sole dissent. It appears to be an act of outright defiance." As expected, the Supreme Court issued another rebuke recently in unusually strong language, saying the 5th Circuit's opinion "blinks reality." The Supreme Court "came very close to saying that the (appeals) court was disingenuous," said Sandra Guerra Thompson, a professor at the University of Houston Law Center. Aggressive and willful "Defiance" is the word Thompson and other scholars and attorneys used to describe the 5th Circuit's opinion in the case of Miller-El, who was convicted in Dallas County. Siegel says the opinion confirmed a defiance that was merely suggested in the 5th Circuit's earlier rulings. "The 5th Circuit is more out of step than any circuit in the country when it comes to the death penalty," Siegel said. "You just don't see anything like this in any other court. The way they differ from other courts of appeal is the aggressiveness and the willfulness in capital cases. "Part is ideology and part is willfulness, a refusal to get the message from the Supreme Court," he said. Among those who agree is Jim Liebman, a professor at the Columbia University law school who headed a study examining 22 years of U.S. capital cases. Liebman said his study showed that some courts, such as Texas state courts and the 5th Circuit, adopt the attitude, "'We are not going to look at these cases clearly and it's going to take a 2-by-4 to the head before we are going to overturn these cases.'" The Supreme Court rebukes began in 2001 with its second decision in the case of Texas killer Johnny Paul Penry. The high court ruled 6-3 that the 5th Circuit had failed to enforce the spirit of a 1989 Supreme Court decision in the Penry case, requiring juries to consider evidence that could lead to a life sentence rather than death. Supreme Court frustrated The Supreme Court delivered its 1st slapdown in the Miller-El case in February 2003, ruling 8-1 that the 5th Circuit should have given Miller-El a chance to appeal his conviction. The court explicitly outlined how the 5th Circuit should analyze the case. The Supreme Court again chastised the appeals court in February 2004 in the case of Delma Banks Jr. Ruling 7-2, the court said Bowie County prosecutors allowed 2 key witnesses to lie and did not inform the defense that one witness was a paid police informant and the other a 2-time felon who testified in exchange for having an arson charge against him dropped. In June 2004, voting 6-3 in the case of Robert Tennard, the Supreme Court rejected a policy the 5th Circuit had developed in reaction to the Penry decision. The high court said the policy "has no foundation in the decisions of this court." Last month, the Supreme Court again reversed the 5th Circuit Court in the Miller-El case, expressing strong frustration that the lower court had failed to follow its clear instructions in the earlier ruling. The opinion by Justice David Souter said the 5th Circuit decision was a "dismissive and strained interpretation" that "blinks reality." Fifth Circuit Counsel Bill Zapalac, the court's attorney, said the court speaks only through its opinions and does not respond to critics. The Texas Attorney General's Office, which represents the state in all cases before the 5th Circuit, declined to comment, as did the Harris and Dallas county district attorneys' offices. 'Activist' court Polk County District Attorney William Lee Hon, who assisted in the Penry prosecution, disagrees with the critics. "I don't think (the 5th Circuit judges) are willfully defying the Supreme Court," he said. Hon said the 5th Circuit judges believe they have a duty to respect decisions by Texas courts and juries and are trying to balance that duty with Supreme Court decisions, which often are vague. Siegel, however, calls the 5th Circuit an "activist" court. "It's a refusal to be bound by the law when it's clear," he said. "If that's not activism, I don't know what is." Since the Supreme Court hears very few 5th Circuit decisions, Siegel said, it's clear the appeals court is ignoring the high court's instructions in many other cases because the decisions probably won't be reviewed. For example, George Kendall, a New York lawyer who represented Delma Banks, said the 5th Circuit rejected "scores of appeals" that should have been accepted, according to the Supreme Court's decision in the Penry case, before the high court got around to correcting the 5th Circuit in the Tennard case. Resistant to the high court In a 2003 capital case that never reached the Supreme Court, 5th Circuit Judge Harold R. DeMoss Jr. dissented from a ruling by the entire 18-judge court. "I am amazed that our en banc court would have the audacity to turn around and reach the same result the Supreme Court just vacated," he wrote. The 5th Circuit's seeming resistance to Supreme Court death penalty rulings appears even more remarkable in view of the high court's tendency to side with the prosecution in capital cases, said Liz Semel, a professor and director of the death penalty clinic at the University of California, Berkeley's Boalt Hall School of Law. The 1996 Anti-Terrorism and Effective Death Penalty Act required the courts to be deferential to lower court opinions in death penalty cases unless there was a strong reason for overturning a decision, Semel said. "The standard is high," she said. "When the Supreme Court said 'That's wrong' in the Miller-El case, that was really wrong." Liberal subordinate Semel said the popular idea that death penalty decisions are dismissed on technicalities is misplaced, because convicted murderers must have an overwhelming case to succeed. "In a death penalty case, the word 'technicality' is just not in the dictionary, because the burden is so great," she said. Moreover, said Liebman, the Supreme Court is far more likely to overrule a lower court that ruled against the prosecution. "This is a conservative Supreme Court when it comes to death cases," Siegel said. "You have a Supreme Court that is conservative that the 5th Circuit is significantly out in front of." The 5th Circuit is not the 1st appeals court to go its own way before being reined in. The liberal 9th Circuit issued so many stays of execution in a case during the 1990s in contradiction of Supreme Court rulings that the high court finally ordered the judges to stop, said David Dow, a professor at the University of Houston Law Center and founder of the Texas Innocence Network. Liebman said the 4th Circuit, perhaps the only appeals court that is more conservative than the 5th, was the Supreme Court's problem court on capital cases in the 1990s. "What's different about the 5th Circuit, even from the 4th Circuit, is when the Supreme Court overturned the 4th Circuit, they only had to do it once," Liebman said. The high court has had to revisit 5th Circuit cases on 2 occasions, in the Penry case and the Miller-El case, he said. Not all of the 5th Circuit judges are willing to contravene the Supreme Court. Liebman said there are moderates and conservatives on the court who disagree with the high court but understand their obligation to follow its decisions. Another problem is a 5th Circuit rule binding the entire court to opinions reached by 3-judge panels, Dow said. Although the court has 18 members, nearly all cases are handled by panels. Attorneys say the number of pro-prosecution judges on the court makes it unlikely that a panel will have at least 2 judges willing to overturn a Texas court. (source: Houston Chronicle) PENNSYLVANIA: Jury Selection Begins For Travaglia Penalty Trial More than 25 years after his crimes, a jury is again being selected Tuesday to determine whether Michael Travaglia deserves death for his so-called "Kill for Thrill" murders. Travaglia and John Lesko have both been convicted of murder in the shooting death of Apollo police officer Leonard Miller, which capped a week-long rampage in which they killed 3 others in January 1980. Both were sentenced to death but appealed. Lesko has since received a new death penalty trial and was again sentenced to death in 1995. Travaglia's new penalty trial in Westmoreland County will begin when the new jury is selected. The case is set in Westmoreland County because Miller drove across a bridge into neighboring Westmoreland County, before he was shot. Authorities said Lesko and Travaglia sped past Miller several times to lure Miller, a rookie officer, into chasing them just so they could gun him down. (source: Associated Press) OHIO: Only the stubborn keep Kenny caged Almost 5 years ago, I was packing up my suitcase and getting ready to fly to the United States. I wasn't going on holiday, but it did end up being the trip of a lifetime, the sort of journey that you're never likely to forget. I was going to the hick town of Mansfield, Ohio. With a population of just under 50,000, it boasts no tourist attractions and is notable for no other reason than it is home to the maximum-security prison of the same name. The purpose of the trip was to try to arrange an interview with Kenny Richey, the Edinburgh man on death row. In July 2000, when the prison authorities finally granted the Evening News access to the prison, Kenny had already been on death row for 13 years, waiting to be executed if his appeals failed, or set free if the seemingly impossible happened, and the authorities listened to the evidence. The sentence he had served was a good 2 years longer than that which he was offered in a plea bargain. Regular readers of the News will be familiar with the bare facts of the case. Kenny, the son of an US serviceman and a Scottish mother, was accused of starting a fire which killed a 2-year-old girl, Cynthia Collins, in Columbus Grove, Ohio, on June 30, 1986. After his trial in January 1987, Kenny was sentenced to death. As far as the US authorities, and even the Scottish public, were concerned, that should have been the end of the story. Certainly, Kenny would have been expected to appeal against the conviction, or at least the death sentence, and to plead for his life. But few Death Row inmates - and there are hundreds of them in Ohio alone - serenely accept their fate. But thanks to campaigners who took up Kenny's cause, flaws in the case began to appear which have slowly unravelled the prosecution's arguments to the point where their theory of what happened that night in Ohio seems so far-fetched as to be ridiculous. Their story goes something like this: after a drunken party, Kenny was supposed to have decided he wanted to kill an ex-girlfriend and her new lover, who were asleep in the apartment below Cynthia. In order to do this, Kenny, who had his arm in plaster, is supposed to have broken into a nearby greenhouse, stolen some paint thinners, and climbed on top of a shed to get into Cynthia's home. Once inside, he is said to have splashed the paint thinners around, set fire to the apartment and disconnected the smoke detector, with the intention of killing the sleeping couple. Yet no traces of paint thinners were found on his clothing and arson experts say the burn patterns were more consistent with an accidental fire, such as a discarded cigarette. Indeed, Cynthia had a history of starting fires, as a firefighter at the scene that night told me. Several witnesses also saw Kenny trying to get into the blazing apartment to rescue Cynthia, and he had to be restrained. All this and much, much more convinced me that a serious miscarriage of justice had taken place in Putnam County, Ohio. The question was, why was it taking so long for the authorities to admit they had got it wrong? There are some vested interests, not least because the assistant prosecutor of the case, Randall Basinger, was running for judge at the time. On top of this, the appeals system for death penalty cases is notoriously slow, and this of course favours the guilty who can string out their existence for as long as possible before the needle of lethal injection pierces their veins. For the innocent, it prolongs the agony of waiting for justice, if indeed justice ever comes. In January, it appeared that justice had finally arrived for Kenny. The 6th Circuit Court of Appeals overturned the conviction and ordered the state to set him free or retry him. His campaigners were jubilant: the evidence was so compelling that a retrial would be fruitless, they said. Unfortunately, it has been confirmed that the state will not free him without a fight, and a retrial has been ordered which may not take place until next year - 20 years after the "crime" which was no more than a tragic accident. There is no doubt in my mind that if Kenny finally gets a fair trial, and the evidence is heard, he will be freed. But it is clear now that there will never be any admission of culpability from the US authorities responsible for this miscarriage of justice. (source: Jennifer Veitch, Edinburgh Evening News) USA: Giving innocence a chance The U.S. Supreme Court agreed last week to hear the appeal of a death penalty conviction that I wrote about shortly before the presidential election. It was the one on which the Republican-nominated judges and Democrat-nominated ones on the 6th U.S. Circuit Court of Appeals at Cincinnati had split 8-to-7 along those strictly partisan lines. The issue was whether to go ahead and kill a man in spite of new evidence. The bare-majority Republican contingent said to kill anyway. The Democrats said no, or at least wait. My point was that one's vote in a presidential election could be important, even a matter of life and death. But that's moot. We voted. The executioners won. What's still relevant is what the Supreme Court will decide and the historic precedent it may set. The issue is whether our criminal justice system will be bound - by case law, not merely conscience and good sense - to consider new and possibly extenuating DNA evidence that was unavailable at the time of a death penalty conviction. This is the Tennessee case of Paul House, whose two old rape convictions render him something much less than a sympathetic figure. Nevertheless, 2 horrible crimes don't prove a third, especially when the DNA on the rape and murder victim's nightshirt, a scientific finding of fact unavailable at the time of the trial in 1985, turned out to be that of the hard-drinking husband of the victim. That finding is enhanced by this: According to new witnesses coming forward since the trial, the husband has either confessed to the crime or called himself responsible for it. Yes, he might merely have meant that he shouldn't have been out drinking, but at home to defend his wife when House dragged her into the woods, raped her and killed her to cover up the rape. That would be something to argue about at a new trial, which would seem to be called for by this obvious and overwhelming consideration: Execution is irreversible and morally difficult, and we would seem to want to go that extra mile not to impose it on a conceivably innocent man. But the 8 Republican judges on the 6th Circuit weren't persuaded. They rubber-stamped the prosecutor's arguments. You had House's criminal history. You had blood evidence, though the medical examiner had testified to its possible mishandling. You had new witnesses whose credibility was dubious owing to the fact that they came along after the fact and to the likelihood that the husband was only blaming, not incriminating, himself. 6 of the 7 Democratic judges went overboard the other way, saying House ought to be set free on the basis that the DNA removed any evidence of his committing rape, and that covering up rape was the only motive for murder. The only wise man on the panel was the 7th Democratic nominee, who said the new evidence simply warranted a new trial. So, there remains that simple and central question, one the Supreme Court will now decide: When new and conceivably extenuating DNA evidence comes along after a death penalty conviction, will the state be required to delay the execution and put the accused up for a new trail to include the new evidence? Surely it should. The matter seems too basic for controversy. But here's betting the high court will split 5 to 4, the outcome perhaps hinging on the replacement for the soon-to-retire Sandra Day O'Connor. One biographical sketch of O'Connor describes her as "cautiously conservative on the death penalty." May her successor be the same. It would seem both cautious and conservative to try this man again, and any others similarly situated. (source: John Brummett, Arkansas News Bureau) ************************************** Death penalty foes attack lethal-injection drug Have condemned inmates who have died because of lethal injection done so peacefully, or has a drug that paralyzes the muscle system masked horrific side effects? States are grappling with that question in the latest wave of death row appeals. The Tennessee Supreme Court heard arguments about the drug Pavulon, or pancuronium bromide, in a death row case last month, and is expected to rule by September. In Kentucky, a similar issue is expected to reach the state Supreme Court soon. In Missouri, an inmate got a last-minute stay in May so the U.S. Supreme Court could review his death penalty procedure case before denying his claim 5-4. He was put to death. In the majority of U.S. lethal injections, an anesthetic puts the inmate to sleep. The second drug is Pavulon, which paralyzes the muscle system. The 3rd drug, potassium chloride, stops the heart. Correction departments across the country say that lethal injection is a more humane way to kill inmates than the electric chair or gas chamber and therefore does not violate the Constitution's Eighth Amendment banning cruel or unusual punishment. According to eyewitness accounts, some electrocutions turned gruesome, with flames coming out of inmates' bodies, flesh burned to the bone and repeated jolts of electricity needed over long periods of time to put the inmate to death. Death penalty opponents say lethal injection also can induce horrifying pain because Pavulon, which is banned by the American Veterinary Medical Association for animal euthanasia, will mask any signs that the anesthetic has failed to work. They have little to support those claims except a few anecdotes of inmates gasping and convulsing and an article in the British medical journal Lancet. They also attack lethal injection by saying that the steps to complete it haven't been reviewed by medical professionals. State correction departments who handle the death penalty process counter that doctors do not, indeed, cannot, do such reviews because their professional code of conduct prohibits physicians from purposely killing someone. "The department has had difficulty finding medical professionals to get involved," state attorney Joe Whalen told the Tennessee high court. The American Medical Association's Code of Ethics doesn't allow physicians to participate in most aspects of an execution. The Lancet study by University of Miami researchers involved 49 executions in Arizona, Georgia, North Carolina and South Carolina. In 21 of the deaths, the study concluded from autopsy toxicology report data that inmates probably were conscious when they received potassium chloride, which meant Pavulon masked the ability to determine if there was pain and suffering. (source: Associated Press)
