July 22 GEORGIA: Public Interest Projects----New Trial for Death Row Inmate For the past 6 years, pro bono lawyers at Davis, Polk & Wardwell in New York have worked on behalf of a mentally retarded client on Georgia's death row who was convicted of a double homicide and robbery. On Wednesday, the Davis Polk team - associates Hayward H. Smith and Andrew B. Dean, partner James W.B. Benkard and senior counsel Ogden N. Lewis - prevailed in a habeas petition before the Superior Court of Butts County, winning a new trial for Larry Jenkins and sparing his life. During direct appeals, the Davis Polk team and attorneys from the Georgia Resource Center argued that Mr. Jenkins had ineffective assigned counsel and that prosecutors had suppressed exculpatory evidence implicating an individual who was questioned by police but never indicted for the 1993 crimes. In addition, Superior Court Judge Anne Workman found that since Mr. Jenkins was a juvenile in 1993, he should not have received the death sentence, in accordance with the U.S. Supreme Court decision last March in Roper v. Simmons, No. 03-633. Prosecutors have 30 days to file an appeal before the Supreme Court of Georgia. Former Davis Polk attorneys who worked the case include Professor Jennifer Chacon of the University of California School of Law at Davis; Victor Fleischer, a visiting professor at Georgetown University Law Center; and Amy Garcia of the Nassau County District Attorney's Office. (source: New York Lawyer) CALIFORNIA: Fined Lawyer Claims to Be 'Victim' of Novel Court Program Sacramento attorney Thomas Riordan didn't know what he was getting into in 1991 when he agreed to handle death row inmate Richard Dean Turner's appeal. He had never tackled a death penalty defense, but chose to participate in a novel California Supreme Court program that assigned civil lawyers to capital cases in hopes of reducing a huge backlog. Riordan floundered, even with assistance from experts in the field. When the opening brief had not been filed more than 10 years later, an angry and unsympathetic state Supreme Court held him in contempt, fined him $1,000 and ordered the repayment of more than $42,000 in fees. On Aug. 2, Riordan faces more repercussions from the Turner case when he goes to the State Bar Court in San Francisco to defend himself against charges he performed incompetently. He will make the simple and compelling argument that in some ways, he was the victim of a Supreme Court program that never really worked. He plans to show that he was in way over his head and that the Supreme Court contributed to his failure by refusing to release him from his commitment. "Some attorneys, despite their best efforts, will be unable to get up to speed on a case," San Francisco solo practitioner Jerome Fishkin, who represents Riordan, wrote in court documents. "Their duty at that point is to recognize the problem and withdraw. "Mr. Riordan recognized the problem and sought to withdraw," Fishkin added. "He was denied permission, then held in contempt for his inability to perform. This is not a case that should result in discipline." Riordan, on the advice of Fishkin, declined to comment. State Bar prosecutors are recommending that Riordan, a 1982 Boalt Hall School of Law graduate, be publicly reproved. That's far less serious than disbarment or suspension, but it's still a punishment that would permanently scar his previously unblemished Bar record. "It's public discipline and it's serious," State Bar Supervising Trial Counsel Donald Steedman said Tuesday. "[It's] not a good thing." Riordan was tapped to defend Turner while working as an associate at what's now Sacramento's Hansen, Culhane, Kohls, Jones & Sommer. Desperate to cut back on a growing capital case backlog, the high court in the early '90s began recruiting civil attorneys at large law firms to take cases, with the knowledge that they would be assisted by attorneys with the California Appellate Project, a San Francisco-based group that serves as a resource for lawyers tackling direct death appeals or habeas corpus proceedings. The experiment was largely a failure, with the big firms mired in cases requiring considerable time, money and manpower and the individual lawyers finding themselves overwhelmed and lacking the skill to produce a quality death-case brief. "It didn't seem to be working all that well for a variety of reasons," Beth Jay, principal attorney to Chief Justice Ronald George, said Tuesday. In the past year, the Supreme Court has been trying to woo big firms back by limiting their commitment to two years in the habeas corpus proceedings and to offer additional resources that include not only the full expertise of CAP, but San Francisco's Habeas Corpus Resource Center and former state Public Defender Lynne Coffin. Pillsbury Winthrop Shaw Pittman and Bingham McCutchen immediately stepped forward. "The changes that HCRC, CAP and the court have made, with support from legal experts, has made a 100 percent difference," Bingham McCutchen partner Nora Cregan said late last year. "People would have been loath to take on another commitment like we did 15 years ago." Berkeley, Calif., solo Wesley Van Winkle, an experienced death-case defender, said that "lots of people" warned the high court in the early '90s that dropping civil lawyers into death penalty cases "was not a great idea -- that these folks just didn't have the experience. "People took these cases and got into them and found out it was much more than they anticipated," he added. "And the court sort of said, 'Sorry, too late now.' It was almost like a bait and switch." In softer language, Fishkin said that's essentially what happened to Riordan. "He tried to do the right thing," Fishkin said Tuesday, "and he got caught between 2 impossible situations" -- in that he wasn't allowed to quit the case, but also knew that he wasn't capable of filing a brief that would pass constitutional muster. According to court documents, after he was denied the right to withdraw, Riordan -- now of counsel at Sacramento's Weintraub Genshlea Chediak Sproul -- co-counseled with Robert Sanger, a well-known death-penalty defender. But even with Sanger, a partner in Santa Barbara, Calif.'s Sanger & Swysen, on board, the opening brief was filed much later than the court desired. Sanger, who had been handling Turner's habeas corpus case, was briefly held in contempt by the high court in March 2002 after taking over Turner's direct appeal. The high court later lifted that sanction, following a barrage of complaints from the death-penalty defense bar, but not before Sanger was lectured harshly by the chief justice. Turner's opening brief was finally filed by Sanger on May 7, 2002. His death sentence -- for murdering Merle and Freda Claxton in their San Bernardino County home in 1979 -- was affirmed on Nov. 1, 2004. State Bar prosecutors weren't required to file charges against Riordan, but decided that he not only performed incompetently, but also willfully disobeyed the Supreme Court's orders on filing a timely brief and also failed to report to the State Bar that he had been sanctioned. Fishkin hopes to get the punishment reduced to a mere admonition, if not dropped completely. "He's already been held in contempt by the Supreme Court," Fishkin said. "What else does the system need to do to someone who tried his best?" The trial before State Bar Court Judge JoAnn Remke is expected to last no more than two days. The case is In the Matter of Riordan, 02-0-11078. (source: The Recorder) *************************** Samantha Runnion's killer could get the death penalty A man convicted of killing a 5-year old California girl is expected to find out today if he'll be sentenced to death. Alejandra Avila was convicted in the 2002 death of Samantha Runnion, who was seized kicking and screaming outside her Stanton home. A judge formally sentences him today after a jury recommended the death penalty in May. It's extremely rare for a judge to set aside such a recommendation. Defense attorneys had urged jurors to spare Avila's life. They claim the abduction was prompted by a brutal childhood in which Avila was beaten by his father, raped by an uncle and neglected by his mother. (source: Associated Press) KANSAS: Kline to argue death penalty before Supreme Court The U.S. Supreme Court will hear arguments Dec. 7 about whether the Kansas death penalty is constitutional, and Attorney General Phill Kline plans to be there to make the state's case. Kansas' is 1 of 4 death penalty cases scheduled before the nation's highest court when it begins its new term in October. 7 men who had been sentenced to die in Kansas might yet face execution if the court upholds the law. In December, the Kansas Supreme Court declared the 1994 death penalty law was flawed because of how it said juries should consider the evidence for imposing a death sentence. Kline appealed, and the high court agreed in May to take the case. "He has been preparing ever since the court said it would hear the case and has a definite game plan. He will be well prepared to represent Kansas," said Whitney Watson, spokesman for the attorney general's office. Watson said this will be Kline's first time to argue before the justices, although he appeared before them in October when the court heard arguments in an Arkansas River water rights case between Kansas and Colorado. At issue in the death penalty statute is the section that states if the evidence for or against imposing the death sentence seems equal, the jury must choose death. The Kansas court disagreed, saying when the evidence seems equal, the defendant should benefit. To do otherwise amounts to cruel and unusual punishment and violates defendants' rights to due legal process, the court said. Earlier this year, legislators could have fixed the flaw by rewriting the law. But they felt that doing that could discourage the high court from accepting the appeal and would end any chance of those on death row facing execution by lethal injection. The last executions in Kansas were in 1965 when serial killers George York and James Latham were hanged at Lansing State Penitentiary, where any future executions will be conducted. The death penalty law in all states was struck down in 1972 by the U.S. Supreme Court. The high court began allowing executions again in 1976, but it took nearly 2 decades to get a new law enacted in Kansas. The case is State v. Michael L. Marsh II. In the U.S. Supreme Court, it's No. 04-1170. For the Kansas Supreme Court, it's No. 81,135. On the Net: U.S. Supreme Court: http://www.supremecourtus.gov Kansas Supreme Court: http://www.kscourts.org ******************* Supreme Court to Hear Arguments in Death Penalty Case -- Attorney General Phill Kline will argue the state's case when the U.S. Supreme Court hears arguments on December 7 on whether the Kansas death penalty is unconstitutional. The state Supreme Court struck down the death penalty in December. The court said it was flawed by stating that if the evidence for and against imposing the death penalty seems equal, the jury must choose death. The Kansas court said when the evidence seems equal, the defendant should benefit. The attorney general appealed that ruling and the nation's highest court accepted the case. Today it announced it would hear arguments in December. 7 men convicted of capital murder in Kansas might yet face execution if the death penalty is upheld. The state's last executions were in 1965. (source for both: Associated Press) NORTH CAROLINA: Lawmakers have plenty of evidence to support need for death penalty study in N.C. When there is such blatant and irrefutable evidence that North Carolina courts have sent innocent men to prison and to death row, its hard to fathom why there isnt sufficient support in the state House of Representatives to place a moratorium on executions while the use of the death penalty is studied. Earlier this week, the North Carolina House postponed a vote on a bill that would require a study of the death penalty in North Carolina, but would not impose a moratorium on executions while the study is conducted. The vote is expected to take place early next week. A House judicial committee originally approved a bill similar to an already-passed Senate version that calls for a 2-year moratorium. But House leadership chose not to call for a vote on that version of the bill because it was clear there wasnt sufficient support among House members to pass it. Instead, the bill was withdrawn and sent back to committee for revision. "We have searched for a way to address the problem that would be acceptable to a majority in the House," Rep. Joe Hackney, a Chapel Hill Democrat and lawyer who sponsored the bill, told the Raleigh News & Observer. Under the new version, inmates up for execution during whats now proposed as a 3-year study, could ask judges to postpone their lethal injections individually. To win a temporary reprieve, they would have to provide credible evidence of specific problems, such as racial bias or cheating prosecutors. It appears that even the watered-down version of the bill might not pass. The Judiciary Committee that approved the first version of the bill heard testimony from Alan Gell and Darryl Hunt, two men who spent years in prison after being convicted of murder, but were later exonerated. Gell spent several years on death row. Misconduct by prosecutors, incompetent defense lawyers and unfairness in the way the death penalty is handed out are just some of the issues that need to be studied. Many North Carolinians who have read Hunts and Gell's stories or have heard them speak are justifiably concerned about the fairness of the North Carolina court system. It shouldn't need to be said that the faith of the people in the institution of the courts is vital to a state that depends on the rule of law. It may well be that after a 3-year study, the citizens of North Carolina will conclude that there is no fair and foolproof way of administering the death penalty. Its possible that a majority will want lawmakers to eliminate it as a way of punishing people. If such a conclusion is reached, how sad it will be to have executed people during the time the study was being conducted. That's assuming there is a study. (source: Asheville Citizen-Times) ***************************** Compromised anti-death penalty bill creeps through NC House A revised execution moratorium bill was scheduled to go before the House Judiciary Committee I on Tuesday (July 12). The legislation drops language calling for a two-year suspension of the death penalty, instead allowing executions to proceed while giving superior court judges the power to stay executions if procedural problems are found. The legislation has been renamed: "Study the Death Penalty/Permit Executions During the Study Absent a Judicial Stay." Rep. Joe Hackney, a Democrat from Chapel Hill who is the bills primary sponsor, said he expects the bill to receive support from the majority of the Judiciary I Committee, which he chairs. An earlier version of the bill passed the committee 8-6 in March, with committee member John Blust, a Republican from Greensboro, missing the vote. "There have been some mistakes made in our court systems which involved an innocent person being on death row," Hackney said. "We need to pause and make sure that what were doing is accurate correct and fair." Similar legislation passed the Senate in 2003 but stalled in the House Judiciary I Committee and never received a full floor vote. Co-sponsors of the bill include four Greensboro Democrats, Reps. Alma Adams, Pricey Harrison, Maggie Jeffus and Earl Jones. Harrison sits on the Judiciary I Committee with Hackney. 2 other cosponsors of the bill, Rep. Martha Alexander, D-Charlotte, and Rep. Verla Insko, D-Chapel Hill, are also members of the Judiciary Committee. Rep. Bonner Stiller, a Republican from Brunswick County who serves as vice chairman of the Judiciary I Committee, said he hasnt read the revised legislation, but expects that hell vote against it, just as he voted against the earlier version. He said his fellow House Republicans are also unlikely to support the bill. "I'm not opposed to studying or double checking any questionable case, but there are some cases where people dont deny they did it," he said. Stiller, a defense attorney, said he supports the death penalty and doesn't want to see it suspended for capital defendants who are unambiguously guilty. He cited the case of slain Boiling Springs Lake police officer Mitch Prince. "You had a police officer and a guy got out of his car, took his service revolver, and executed him," Stiller said. "He was the kind of guy you would want to stop your child because he would just say, 'Hey, you need to slow down a little bit.' He was a deacon in his church. There's a situation where the guy did it and everybody knows he did it because he was still firing the service revolver when the police arrived on the scene to arrest him. In my mind, in my heart, that guy deserves the death penalty. That fellow didnt give Mitch an opportunity for a moratorium." The revised legislation is designed to win over lawmakers like Stiller, who support the death penalty, but are somewhat sensitive to concerns that it isn't always applied appropriately. Gone is the language prohibiting the state's secretary of correction from setting a date for execution any sooner than 2 years after the legislation is passed. In its place, the bill states that in the 2-year period a state committee studies the fairness of the death penalty, a superior court judge may issue a stay of execution following appeal by a capital defendant if the judge finds credible evidence that at least one of the following applies: factual evidence of innocence, prosecutorial misconduct, incompetent defense counsel, membership of a racial group that is disproportionately impacted by the death penalty and other factors. Stiller said he expects the "Study the Death Penalty" legislation to sail through the Judiciary I Committee, where Democrats comprise the majority, but go down in defeat in a House floor vote because of opposition from conservative Democrats. People of Faith Against the Death Penalty, an organization based in Carrboro, issued an e-mail alert on July 8 urging its members to call their representatives and urge them to support the bill. "While [People of Faith Against the Death Penalty] and its partners in the North Carolina Coalition for a Moratorium would prefer a suspension of executions for 2 years, we know well that there are not enough supporters in the House to make a suspension a political reality," the e-mail alert reads. "If pass the revised bill would represent one of the most successful state laws to halt executions in the United States, short of abolition." (source: YesWeekly)
