July 29 TEXAS: Texas execution is latest chapter in family's ordeal The piercing pain in the woman's voice at the other end of the line jarred the soul. "It's been a difficult time for the family,'' said the woman who answered the phone this week at the Bloomington home of Kiersa Paul's uncle. "They prefer not to talk right now. It's very easy to say the wrong thing. "I had no idea how bad it would be until it happened to our own family," added the woman, who declined to give her name. "I'm sorry. I have to go now." On Thursday night, David Aaron Martinez, 29, was executed by lethal injection in Texas for the 1997 slaying of Paul, then 24 and a University of Minnesota art student. The crime was particularly heinous: Paul was raped, sodomized, strangled, her throat slit several times and an "X" carved across her chest. Her body was found the next morning off a popular biking and hiking trail in Austin, Texas. For some reason, Paul's death barely registered here when it happened. It merits attention now, if at least to remember a young woman who by all accounts embodied Minnesota Nice. "We wanted girls who were outgoing and adventurous," Margaret Paul, the victim's mother, told reporters shortly after Martinez was convicted of the murder and sentenced to death in 1998. "We taught her to listen to people with problems. Now, sometimes, I think: 'Should we have taught her fear? Or suspicion?'" It's a fine line parents tread on this point, regardless of whether the setting is small town or big city. We want to raise them to be good but also to be street smart and wary when they need to be. Turn the other cheek if you must, but be ready to block and counteract if anything does come your way. It is indeed tough sometimes to be "Easter people living in a Good Friday world," as a church pastor I know is fond of saying. Paul, then a sophomore at the U, grew up in Bloomington and thought she was the oldest of 3 sisters until she learned she had an older sister, who had been placed for adoption, residing in Austin. A happy reunion took place. The 4 sisters received silver rings with the words "Sisters Forever" engraved in French one Christmas. Paul decided to take a break from school at the end of classes in 1996 and moved to Austin. Somewhere, she met and befriended Martinez, then 21. On July 22, 1997, Paul told her sister she was meeting up with "Wolf," Martinez's nickname, after work at a local bakery. Martinez hardly hid his crime. Police found Paul's Raleigh bicycle and book bag inside his residence 2 days later. They also found a pocketknife in his possession with the victim's blood on it. The evidence was clearly overwhelming. It took jurors just 15 minutes to convict Martinez of capital murder. The death penalty verdict took a little longer - about 4 hours. Defense attorneys implored the jury to spare Martinez, to give him life behind bars. They argued that Martinez's troubled life - struggling with depression and homelessness - stemmed from a traumatized childhood. They claimed Martinez was abused and neglected by his mother and allegedly sexually abused by a father who manufactured sadomasochistic toys from his Iowa home. The jury chose death. Martinez became the 10th inmate to be put to death this year in Texas, the reigning execution capital of this nation. The victim's parents and a younger sister and her husband attended the execution. So did the killer's mother. Both sides left to resume lives forever scarred by such senseless violence. Perhaps the Paul family found solace and resolution. Perhaps they may be left wondering, like some of us will be, whether the execution of their daughter's killer softened the blow or just added to it. In the end, it's never a crime to raise kids to be humane and loving in a sometimes inhumane and cruel world that is also our own creation. Just throw some boxing lessons and common sense into the mix. (source: Pioneer Press) TENNESSEE: Appeals court backs death penalty reversal -- Killer's abusive childhood not presented at trial for 1981 murder The 6th U.S. Circuit Court of Appeals yesterday upheld a decision to set aside the death sentence of Ronald Harries - a convicted murderer who spurred the state of Tennessee to change conditions on death row. The court upheld the 2002 decision of U.S. District Judge John T. Nixon that vacated Harries' death sentence. Harries, 54, was sentenced to die for the 1981 murder of Kingsport convenience store clerk Rhonda Green during a robbery earlier that year. The court faulted Harries' lawyers for failing to investigate his background thoroughly or to present evidence of his troubled background for the jury to consider in sentencing. "Here, had counsel conducted an adequate investigation, they would have discovered evidence of Harries's traumatic childhood, including the significant physical abuse Harries suffered at the hands of his mother, stepmother, and grandmother," the written opinion said. The court cited evidence of mental illness and violence that extended to other family members, including the rape of his sister by a stepfather and the beatings his mother suffered by both his father and stepfather. The court noted that "the likelihood that the mitigating evidence available in this case would have influenced the jury is 'sufficient to undermine confidence in the outcome' reached at Harries's sentencing." Barring an appeal to a higher court, a new sentencing hearing will be held in Sullivan County. Neither Judge Nixon nor the federal appellate court overturned the murder conviction. "Ron Harries had a very strong case to present at the trial and it wasn't presented," his Nashville lawyer Bill Redick said. "The federal courts have now heard this case, and if this decision by the 6th Circuit stands, then he will have an opportunity to present his case (at sentencing)." Harries came within 2 days of dying in the electric chair in 1984 after giving up all appeals, saying he preferred to die than to live on Tennessee's death row, where inmates were locked up in cramped quarters for 23 hours a day. The execution was stayed indefinitely by Nixon after lawyers sued on his behalf arguing that cruel and inhumane conditions on death row made the defendant incompetent to decide his fate. Harries and other death row inmates joined in a class-action suit against the state, prompting Nixon to declare conditions on Tennessee's death row unconstitutional. The state improved conditions for condemned inmates as a result of the case. (source: The Tennessean) ARKANSAS: Several motions filed on behalf of defendant facing death penalty Several motions were filed Thursday in the Washington Circuit Court Clerks office on behalf of Stevie Ray Hunter, who faces the death penalty on a capital murder charge in connection with the Nov. 3 shooting death of 35-year-old Clarence Thomas Spear near West Fork. Kimberly Yvonne Jackson, 19, of Fayetteville is also charged with capital murder in the case, which is tentatively set for trial beginning Aug. 22. A hearing is scheduled for Aug. 5 in the case. Jackson and Hunter are being held in the Washington County Jail. She is being held on $500,000 bond - $250,000 for the capital murder charge and $250,000 for aggravated assault and kidnapping charges related to her alleged involvement with Spears death. Hunter, 32, of Fayetteville, who faces all 3 of those charges, too, is being held in the Washington County Jail on $250,000 on the capital murder charge, and $500,000 on the other 2 charges. Both have pleaded innocent. Capital murder carries a punishment of death or life in prison without parole. Hunter is represented by the Public Defenders Office. His attorney, Brock Showalter, Thursday filed several motions, many of them related to this being a death penalty case. He has filed motions to: - Severe the kidnapping and aggravated assault from the capital murder charge. - Preclude creation of snitch testimony to compel disclosure of aggravating and mitigating factors. - Set the standard of proof in a capital case. - Prohibit the state from using voter registration lists to select the jury panel, claiming the unconstitutionality of the master list from which the jury is selected because it under-represents, among others, blacks and women. - Hold provisions of the death penalty statute in the state as unconstitutional. Showalter also made motions to allow his client to wear civilian clothes without restraints at all court appearances and to request information concerning the character of the victim, Spear. He also filed a notice of heightened standard of due process and reliability in this, a capital case, and to prohibit victim impact evidence. Other motions he filed were for the defense to view the crime scene, and to suppress statements and physical evidence, siting its being taken in violation of Hunters rights. Jacksons attorneys are Tim Buckley and Kent McLemore. She and Hunter were arrested in Little Rock on Nov. 6 on suspicion of aggravated assault and kidnapping. They were brought back to Washington County that night and pleaded innocent to the kidnapping and aggravated assault charges on Nov. 9. The charges were later amended to include capital murder after a blood stain in the Ford Explorer they drove the day of the shooting was tested by the state Crime Laboratory and found to be Spears. Investigators say Jackson and Hunter took Spear in the Explorer to a wooded area near West Fork early Nov. 3. Police say the couple stabbed Spear in the back, placed him against a tree and shot him in the head after a dispute over counterfeit money Spear paid to their escort service. Spear is from North Carolina and had lived in Fayetteville for a short time before his death. A hunter found Spears body the next day on Bethlehem Road about 2 1 / 2 miles south of Jacksons mothers house. When Spears body was found, he had knife and gunshot wounds and appeared to have been in the wooded area for 24 to 36 hours, according to Det. Chuck Rexford of the Washington County Sheriffs Office. The State Medical Examiner ruled the death a homicide with the cause determined as a gunshot wound to the head, stab wound to the back, and knife wounds to the neck and face. (source: Northwest Arkansas Times) USA: Can Novels Educate Us About Complex Death Penalty Issues? A Review of 2, By Richard North Patterson and Kermit Roosevelt, That Attempt to Do Just That ---- Richard North Patterson, Conviction (Random House 2005)----Kermit Roosevelt, In the Shadow of the Law (Farrar, Straus & Giroux 2005) It's stating the obvious to say that whether, and under what circumstances, the death penalty should be part of our criminal laws are difficult questions. For lawyers, though, the death penalty may pose questions still harder than those faced by the general populace in considering this issue: Not only do lawyers wrestle with the general moral questions involved in government-sanctioned executions, but the maze of legal issues that accompany a death sentence are as complex as any in the law. Of course, the law of habeas corpus, which governs all collateral challenges to a criminal sentence, is the same in theory regardless of whether the sentence is one of death or a year's imprisonment. But in practice, everyone understands that death sentences will be litigated until the moment the death warrant is carried it out, unlike terms of imprisonment, which generate far less intense litigation. As a result, a Byzantine federal jurisprudence has arisen to govern the multiple federal challenges to state death sentences. Although death sentences make up a tiny percentage of the nation's caseload, they occupy an important and visible chunk of the Supreme Court's docket; although the Court hears less than 100 cases per year, it seems that it hears multiple death cases every term. Although I haven't done any studies, it's hard to imagine another area of the law that, year after year, occupies as central a position in the Court's jurisprudence. In the mid-nineties, Congress entered the fray of habeas litigation by passing the Anti-terrorism and Effective Death Penalty Act (AEDPA), which was designed to cut down on the multiple habeas petitions that led to prisoners sitting on death row for, in some cases, over twenty years before finally being executed. AEDPA is a highly controversial law: its defenders claim that it streamlines a process that had begun to resemble Bleak House in its procedural complexity; its opponents charge that it unfairly limits appeals in an arena where mistakes cannot later be undone. Into this highly-pressurized arena, come 2 recent novels with lofty aims: to entertain the reader while also providing education about this convoluted topic. While Conviction is the latest work of Richard North Patterson, the best-selling writer of a number of legal and political dramas, In the Shadow of the Law is Kermit Roosevelt's 1st fictional work. In this column, I will assess both how well the two books each work as novels, and how well each illuminates the death penalty issues it raises. Contrasting the Two Books: A Polemic Versus a Caricature of Legal Practice Both authors have goals beyond education and entertainment. Patterson has produced a vicious anti-death penalty polemic and is clearly bent on convincing the public of the injustice of the current system in general, and of AEDPA in particular. Roosevelt, however, has written a book that tries to portray the "biglaw" legal community as it exists today. Writing on a legal commentary blog known as "Prawfsblawg," Roosevelt - a professor at U. Penn's Law School -- has stated that law school does not "have the descriptive component that I think would benefit students: this is what your life will be like if you go to a big firm, a smaller firm, a clerkship, a prosecutor's office, and so on. That kind of preparation, and an understanding of some of the choices and tradeoffs that come with these different career paths, is something I think students really don't get from law school. And that, in part, is why I wrote the novel In the Shadow of the Law, which tries among other things to look at the legal system from the perspective of a number of these different actors, and to give a sense of what it's like to occupy these different roles." Roosevelt's is an admirable goal: many law students do indeed graduate from law school with no idea what their life will be like as a practicing lawyer. Unfortunately, the portrait In the Shadow of the Law provides is so caricatured and unrealistic that I can't believe that any student who followed its teachings would even choose to go into law at all. The book examines a large, fictional Washington law firm, Morgan Siler; all of the important characters work at, or have other connections to, the firm. More specifically, the book explores two cases that the firm is working on: a large complex tort defense arising from a fatal fire at a factory in Texas owned by an important client, and a death penalty case taken to fulfill the firm's pro bono obligations. Working in and around these matters are the firm's managing partner, a leading litigator, a top corporate lawyer, an older associate, and a series of junior associates. With the exception of the managing partner, a character so venal and unsympathetic as to defy description, all of the others are miserable. The only one who seems to have any pleasure in his life is one of the junior associates, a recent Supreme Court clerk who is concerned only with milking as much from the system as possible before entering the teaching market. Moreover, this fictional firm's law practice is blatantly unethical. The leading litigator instructs the junior associates to commit obvious discovery violations (by, among other things, sending responsive documents to Canada, where they would not be subject to the court's discovery order). Equally appallingly, the corporate attorney falsifies documents to make it appear that a corporate structure preventing liability for the factory's parent company was in place prior to the fire. I can't claim to have worked in a law firm for a lengthy period of time, but I'm pleased to say that I was an associate in the New York office of a large international firm and I never, ever saw any behavior that remotely resembled that described in this book. Roosevelt himself worked at Mayer, Brown (according to his Penn Law bio) for approximately two years. I can only assume that he never saw any behavior approaching what he describes in his book or that, if he did, he reported it immediately to the bar, as would be his ethical obligation. Of course, this is fiction. But it seems intended to be realistic fiction; Roosevelt's whole portrayal of Morgan Siler is so over-the-top that it strains credulity. I understand that working in large law firms can be very unpleasant, but there were numerous passages where I simply wrote "Oh, c'mon" in the margins, such as where Roosevelt describes a young associate so over-stressed that he "couldn't understand how people found the time for hygiene - he himself had begun to wash only on alternate days." There were times at law firms where I worked very hard, and, like many others, I even pulled a few all-nighters in my relatively short private practice career. But other than those infrequent mornings, I always found time to wash, and so, as far as I could tell, did my colleagues. In fact, our firm was "kind" enough to have a shower at the office so that all of our needs could be taken care of there and we could keep working away. If the firm life is so horrible, surely Roosevelt posits other options for young lawyers, such as public service? Unfortunately not: if the firm lawyers featured in In the Shadow of the Law are committing ethical violations as part of their standard practice, their counterparts in the government are even worse: The prosecutors in the novel are committing actual crimes and intentionally sending innocent men to their death. Small-town practitioners, in Roosevelt's world, are not an alternative for young lawyers, either - they're busy conspiring with the prosecutors to commit those same crimes. As for the capital defenders, they come off as honorable, but so weary and overworked that this is hardly a recommendation. In fact, the only career choices that Roosevelt makes seem attractive, are clerking on the D.C. Circuit and the U.S. Supreme Court - two jobs that, unsurprisingly, Roosevelt himself had. I am sure those are great jobs, but if that is the only option for happiness as a lawyer, then Roosevelt is doing his students a grave disservice by letting them go into the legal profession at all, because this privileged route is not a career path open to many people. Roosevelt's Promising Death Penalty Storyline Ultimately Disappoints As for the legal discussion in In the Shadow of the Law, the death penalty case begins well; in fact, there were a number of times when I wished that Roosevelt would leave off the gratuitous comments about the law firm, and concentrate on how the young associate was doing trying to fumble his way through the habeas process; that story was quite interesting. Yet in the end, this promising storyline ends in such a spasm of fantasy, that the ending degrades all of the positive discussion that has gone before. It's certainly not a realistic description of how a habeas petitions proceeds through the system. In the Shadow of the Law means well, but it just tries too hard, both with its over-wrought characters and its excessively purple prose. The picture of the law that emerges is as divorced from reality as is the use of words like "unguent" and "velleity," or the description of a closet as containing "a crisp army of shirts, a bright artillery of ties, and below, a battalion of shoes like dragons' teeth." Richard North Patterson's Death Penalty Novel Shows Off His Talents as a Writer Conviction, however, is much better, and it shows why Richard North Patterson is so successful. Although there were passages in Conviction that seemed a bit awkward to me, comparing In the Shadow of the Law to Conviction showed me how hard it is to write good legal fiction. I am sure that Roosevelt is a smart and hard-working lawyer, but his book simply pales besides Patterson's, which demonstrates what a real pro can create. In Conviction, Patterson re-introduces the Paget family, who are stalwarts of some of his earlier works: Chris and Terri Peralta Paget are both criminal defense lawyers in San Francisco. The book begins with Terri being assigned as Rennell Price's final lawyer, before he is scheduled to be executed, in approximately 2 months. The book is an all-out assault on the death penalty and AEDPA, and even though I am sure I disagree at least somewhat with Patterson on both of those subjects, I found it extremely compelling reading. If you are looking for some good summer reading that will also make you think a little bit (indeed, more than a little bit) than this book will fit the bill. It's not a perfect book: the manner in which Patterson explains many of the complexities of federal habeas law is to have either Chris or Terri explain them to Carlo, Chris's son who has recently become a lawyer, which makes the discussion seem overly preachy and stilted. And there are references to episodes that took place in earlier books that I had read too long ago to remember clearly; Patterson shouldn't assume even a devoted reader will have read all of his books recently, and ought to refresh our memories a bit. But, all that said, Patterson tells a good story: Price had been charged with killing a nine-year old girl who died after an episode of horrific sexual abuse. Terri takes Price's case and sets about trying to reverse his death sentence and prove him innocent - or in death penalty parlance, to show his "actual innocence," as opposed to showing simply that he was not given a constitutionally sufficient trial. The book follows the case through the federal courts and to the U.S. Supreme Court. Depicting the inner workings of the judicial system is where Patterson really excels; I didn't clerk on the Supreme Court, nor have I ever argued before it, but my impression from speaking to some who have, and from my reading, was that Patterson portrayed its activities with great accuracy. Both of Patterson's most recent books, before Conviction, have concerned hot button social issues: abortion and gun control. Both of them really grated on me, as someone who opposed Patterson's positions. This book, however, did not. Make no mistake, Conviction is also a polemic. There's no question that Patterson wants his readers to close the book as die-hard death penalty opponents. Any book, after all, that opens with Justice Blackmun's famous quote that "I no longer shall tinker with the machinery of death" is not being subtle. And there are times when Patterson goes too far: For example, there are his caricatures of a bow-tied UVA grad clerking on the Supreme Court who wants nothing more than to please his boss, a thinly-veiled Justice Scalia. And there is his portrait of the apparently flawless Caroline Masters, the Chief Justice, whose confirmation hearings were the subject of an earlier Patterson work. Similarly, Terri and Chris are the avenging angels of whom all death penalty opponents dream; as with Tom Clancy's Jack Ryan, they are so virtuous that they don't resemble anyone (especially any lawyers) that I actually know. Even so, Patterson's book is very powerful. I will admit to having finished it just before falling asleep, and that its denouement actually caused me to have some trouble sleeping - a result that my wife would certainly note as virtually unprecedented. If you have not read Scott Turow's Reversible Errors, I would recommend that as a more nuanced depiction of both the death penalty and human beings than Patterson's. Still, having opened Conviction imagining that I would find it irritating, I will admit that I found Patterson's own conviction and passion impressive. At the end of the day and in light of recent studies - such as Cass Sunstein's research showing that, perhaps, there may be a significant deterrent effect from the death penalty (contrary to what has long been the conventional wisdom on the subject) -- my conclusion is that we should at least attempt to tinker with the machinery of death a bit more, before we abandon it as irredeemably unworkable. Yet Conviction did give me pause - and for a novel, especially, that is a great accomplishment. (source: FindLaw)
