August 8 USA: Judge Roberts's Rules of Law and Order----While Deputy Solicitor General, the Nominee Saw State Criminal Prosecutions as Priority Defenders and critics of Supreme Court nominee John G. Roberts Jr. have been parsing his position on issues such as abortion, civil rights and school prayer. But one issue that has gotten less public scrutiny has been his staunch law-and-order record. During Judge Roberts's time as principal deputy solicitor general in the administration of George H.W. Bush, his office chose to get involved in dozens of state cases to limit the rights of criminal defendants. The cases backed state prosecutors seeking to preserve convictions won with warrantless searches and confessions obtained without Miranda warnings about the right to remain silent; to dismiss claims by inmates of "cruel and unusual punishments"; and to validate aggressive law-enforcement techniques, such as sobriety checkpoints and "protective sweeps" of crime-infested dwellings. According to Judge Roberts himself, promoting law and order -- a bedrock priority of Republican presidents since Richard M. Nixon -- marked his years in the solicitor general's office, at least as much as limiting abortion rights or opposing racial set-asides. That stance set apart the policies of a "conservative Republican solicitor general" from a "liberal Democratic one," he wrote in a 1993 opinion article published in The Wall Street Journal. "The question is one of priorities," Judge Roberts wrote in that article, observing that of hundreds of friend-of-the-court, or amicus, briefs his solicitor general's office chose to file, one-third backed local prosecutors against criminal suspects. Because state governments "typically find experienced adversaries like the [American Civil Liberties Union] arrayed against them," the solicitor general provided legal ammunition to "help ensure that the states are not hampered...by erroneous constructions of the Constitution," he wrote. Judge Roberts's tenure in the solicitor general's office has become a flash point over his confirmation. Senate Democrats argue that his record as 2nd in command to Solicitor General Kenneth Starr in the administration of the current president's father offers important clues to his thinking. They want access to behind-the-scenes papers in 16 pivotal cases during his time working in the office, from 1989 to 1993. The Bush administration on Friday refused the Democrats' request, citing lawyer-client and "deliberative process" privileges to withhold the records. [The Tenth Justice] In that flap, Democrats are focusing on cases involving civil rights, the environment and privacy issues. Few politicians court criminal suspects as a constituency, and Senate Democrats are unlikely to challenge Judge Roberts, who currently sits on the federal appeals court for the District of Columbia, for siding with law enforcement over defendants and convicts. Judge Roberts's views may not do much to alter the high court's current direction. Justice Sandra Day O'Connor, whom Judge Roberts has been nominated to succeed, also generally sided with prosecutors. Still, Judge Roberts could become a more prominent voice on an issue that divides the high court. In a speech Saturday, Justice John Paul Stevens said "serious flaws," including the risk of executing the innocent, plagued the criminal-justice system, the Associated Press reported. Speaking at the American Bar Association convention in Chicago, he also criticized the use of "victim impact" evidence in capital sentencing hearings, saying that it "serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason." In contrast, Judge Roberts's office fought to help states speed executions by limiting appeals and to reverse a state-court ruling that such victim-impact statements violated the Eighth Amendment, which guarantees protection from "cruel and unusual punishments." Already on the court's next term, which begins Oct. 3, are cases pitting condemned prisoners against prosecutors eager to cut off their appeals and others testing the limits of landmark Warren Court rulings that created the Miranda warning and enforced the exclusionary rule, which bars admission of evidence police obtained in violation of constitutional rights, such as the Fourth Amendment protection from "unreasonable searches and seizures." Several of the positions the solicitor general took under Judge Roberts could re-emerge under a new context: the war on terrorism. Judge Roberts's office intervened to overturn state-court rulings that sobriety checkpoints and bus sweeps -- where police officers board a bus at random and question the passengers -- ran afoul of the Constitution. Judge Roberts's office acknowledged that an "individualized suspicion" generally is required before a search, but contended that the threats of drunk driving and drug trafficking rendered such general searches reasonable under the circumstances. With New York police adopting a policy to search the bags of subway riders, and similar policies under consideration elsewhere, the high court is likely to face again the question of what is "reasonable" in the post-Sept. 11, 2001, era. Cases already on the court's docket echo many of the issues the solicitor general joined during Judge Roberts's tenure. In June, for instance, the court agreed to decide whether new DNA evidence suggesting a Tennessee inmate's innocence was enough to block his execution. In 1992, Judge Roberts helped prepare a brief arguing that if a defendant was convicted in a fair trial, it was constitutional to execute him regardless of new evidence suggesting his innocence. A 6-3 Supreme Court agreed, and the Texas inmate was executed 4 months later. Conservatives long have complained that judge-made rules such as the Miranda warning, intended to deter police misconduct, come at too high a cost -- protecting the guilty -- and under Judge Roberts, the solicitor general's office fought to pare them back. In 1989, for instance, the office backed Illinois prosecutors fighting a state-court decision that threw out a drug conviction because police searched a home with neither a warrant nor permission of its occupant, but rather on the say-so of an "infrequent visitor." A 6-3 Supreme Court sided with the solicitor general, finding that the police, though mistaken, "reasonably" believed the visitor had authority to let them search the home. The court will hear a related question this fall -- whether police can search a home when one occupant consents and the other objects. To be sure, Judge Roberts wrote in the 1993 Journal opinion article that his office didn't "support the states reflexively" if convincing legal arguments couldn't be found. Indeed, on rare occasion the office sided against the state, as in a 1991 case in which it argued that a lower court made it too hard for an inmate beaten by guards to prove he had suffered an unconstitutional "cruel and unusual" punishment. Moreover, as a political appointee with no experience as a prosecutor, Judge Roberts often left criminal cases to others in the Justice Department. In private practice, he, like other attorneys, sometimes represented criminal defendants to fulfill his pro bono obligation. With his internal memorandums withheld by the Bush administration, Judge Roberts's personal views on any particular position taken by his office are uncertain. His 1993 article sought to call attention to the solicitor general's criminal-justice record while he served in the office -- in contrast with the priorities of the incoming Democratic solicitor general, Yale law professor Drew Days. Judge Roberts may have been particularly sensitive to such partisan distinctions at the time, as Senate Democrats recently had blocked his nomination to the appeals court by the first President Bush so that his successor, Bill Clinton, could fill the vacancy. Judge Roberts wrote that the solicitor general's amicus briefs could make the difference at the Supreme Court, citing studies showing that the side the government backs "prevails about 75% of the time." Then there is the other 25%. On Election Day 1992, Judge Roberts himself argued before the Supreme Court that police should be able to falsely promise prisoners leniency in exchange for confessions, and that convicts had no right to raise Miranda violations in federal habeas corpus petitions if the claim already had been made in state court. A 5-4 Supreme Court rejected the argument. In a sense, however, the opinion could be marked as a victory for the solicitor general's office. The court-appointed private attorney representing the prisoner was Seth Waxman -- who later would serve as solicitor general under President Clinton. (source: Wall Street Journal) FLORIDA: FLORIDA JUSTICE--Make DNA testing routine practice In February 2002, I interviewed Barry Scheck, co-founder of the Innocence Project, a New York-based legal center that works on post-conviction cases involving DNA, for a story on Florida's flawed capital-justice system and the group's efforts to free the wrongly convicted. The Innocence Project helped win the release last week of Luis Daz, the wrongly convicted "Bird Road rapist," based on DNA tests. Florida leads the nation in the number of death row inmates exonerated because of DNA. I learned through research that access to post-conviction DNA testing is essential to ensure the right person does the time for the crime. Our justice system is wrought with flaws. Science speaks truths. Prosecutors, detectives, witnesses and victims sometimes do not. Shortly after our interview, Scheck and the law school students who work on the project celebrated a revision to existing New York legislation that guaranteed an inmate access to DNA testing and eliminated the earlier requirement that the conviction must have come before 1996. And in October 2004, Congress passed the Justice For All Act, granting any federal inmate the right to petition a federal court for DNA testing to support a claim of innocence. Florida, however, has no comparable law for those convicted in state court. Instead, in 2001, after the DNA exoneration of a Death Row inmate who had died before his execution, the Florida Legislature passed a law giving inmates the right to apply for post-conviction DNA testing if they could show that the test results were likely to exonerate them. The right was available only to those who had pleaded not guilty. But sometimes the accused will accept a plea deal for reasons that have nothing to do with actual guilt. In addition, the law applied only to those who could make their case within two years. The right to DNA testing in Florida expired Oct. 1, 2003. It was later extended to October of this year after lawyers with the Innocence Project filed suit in the Florida Supreme Court. On Friday, Gov. Jeb Bush ordered police agencies not to destroy DNA evidence. Luis Daz was convicted based almost exclusively on eyewitness testimony. One woman after another pointed at the 134-pound fry cook, swearing he was their assailant. Not a single piece of physical evidence linked Daz to the rapes. In fact, the initial description provided to police by a victim in 1977 described an attacker who weighed approximately 200 pounds and stood at least 6 feet tall. Daz is 5 foot 3. What most lay people do not realize -- certainly the Daz jury did not -- is the inherent unreliability of victim and witness identification. According to Innocence Project research, mistaken identification is the No. 1 factor leading to wrongful convictions. Science provides the only irrefutable and reliable evidence. Science cannot be manipulated by zealous prosecutors or clouded by memory lapses. Newspaper and television reports showed Daz leaving the Richard E. Gerstein Justice Building last Wednesday, flanked by his family and Scheck, flashing peace signs and the kind of smile you would expect from a 67-year-old man drawing his first breath of freedom in more than 26 years. I can't even begin to imagine how much money it would take to compensate an innocent man for spending decades in prison. Nineteen states do attempt to right the wrong with cash, including Alabama, California and Tennessee. In the Justice For All Act, Congress increased the amount of compensation for those wrongfully convicted of federal crimes to up to $100,000 a year for those exonerated from Death Row and $50,000 a year for others. But like its ungenerous DNA-testing policy, Florida does not offer a cent. There is no compensation law on the books, so there is no guarantee that money will be forthcoming when the innocent are forced to face a new life out of prison where freedom is often best supplemented with a paycheck. It is time for Florida to guarantee DNA testing for any inmate who requests the test -- when the material is available, without conditions -- and to compensate the wrongfully convicted by enacting appropriate legislation. Fairer laws would have guaranteed an aging, innocent Luis Daz a few more breaths of precious freedom and compensate him for those many lost years. (source: Opinion, Miami Herald; Jennifer Santiago is a reporter for CBS 4 News) ALABAMA: Serial killing suspect's defense says drug influenced confessions Lawyers for suspected serial killer Jeremy Jones say their client's multiple alleged confessions may have stemmed from an unprescribed, jail-issued medication. Defense attorney Habib Yazdi says Jones was administered the drug Risperdal, used to treat bipolar disorder, between September and November 2004. Yazdi says the defense will argue in an August 12th court hearing that anything Jones said while under the drug's influence should be suppressed. Yazdi said Jones could not make a decision to waive his rights and talk while taking the medication. Alabama Assistant Attorney General Don Valeska, whose office is prosecuting Jones, says he is aware of Yazdi's claims. He said -- quote -- "We will address the matter in court." Jones is currently being held in Mobile County Metro Jail, charged with the murder of Turnerville resident Lisa Nichols. Her mutilated and badly burned body was found in her mobile home in September 2004. Authorities say Jones has confessed to the murder several times, and at least one of those confessions came before the drug was allegedly administered. Jones has denied confessing. Jones has also been charged with killing a teenage girl in Georgia and a woman in New Orleans. Authorities have said he confessed to or is being investigated in the deaths of a couple and the disappearance of 2 teenage girls in Oklahoma, as well as the killing of another woman in Georgia. ************************** Judge restricts testimony on video games in murder trial A judge ruled Friday that expert testimony on video games can't be presented in the trial of Devin Moore, who's accused of killing 3 members of the Fayette Police Department. Moore's defense attorney had wanted to present testimony that compulsive playing of the video game Grand Theft Auto had programmed the young man to kill. But Fayette County Circuit Judge James Moore ruled against it. Devin Moore is accused of killing 2 Fayette police officers and a dispatcher. His trial continues today. (source for both: Associated Press) KENTUCKY: Death penalty's flaw: human error The national debate regarding capital punishment continues. In Rompilla vs. Beard, the U.S. Supreme Court overturned yet another death sentence, with the justices reportedly focusing on "defects in capital cases." And in Kentucky, Franklin Circuit Judge Roger Crittenden stayed two executions until legal questions regarding Kentucky's lethal injection protocol are settled. The specific defect cited in the Rompilla case and the debate regarding Kentucky's execution protocol pale in light of the inherent defect in all capital cases: human error. Allowing for potential error of any kind in decisions that can end a human life is unconscionable, no matter what despicable act that person may be judged to have committed. We are all human. We all err. Innocent people are sentenced to die. We need not debate methods of execution or defects in specific cases. The solution is clear: abolition of the death penalty. Volumes have been written regarding this highly emotional issue, including painstakingly and dispassionately researched studies offering compelling arguments supporting both sides. While most professionals in the criminal justice system are capable, dedicated and honest, it would be naive to ignore the fact that defendants' rights are sometimes subordinated to the political aspirations and personal prejudices of prosecutors, defense attorneys, law enforcement professionals and the judiciary. In many instances, court-appointed attorneys for defendants in capital cases are inexperienced, underpaid and overworked. Even though these lawyers' motives may be noble, their integrity unquestioned and their desire to defend the rights of the accused admirable, a defendant facing the death penalty should have counsel experienced in criminal law and who has the resources to provide effective representation. The argument is frequently made regarding the fiscal cost of execution versus housing inmates for extended periods of time. The costs of the appeal process mandated in capital cases, however, far exceed the costs of long-term incarceration, sometimes by as much as 3 or4 times. Many people support the death penalty out of mistrust of a criminal justice system that allows murderers to live among us. Given the alternative of a sentence of life without parole, many jurors would not impose the death penalty. Indeed, one of the flaws in our system is that in many capital cases, the jury is not even advised that the option exists. Many supporters of the death penalty say executions provide closure for the victim's loved ones. But about 95 percent of the people sentenced to die are not executed. Moreover, the appeals process results in an average wait of 13 years before an actual execution occurs. Doesn't the emotional roller coaster surrounding the appeals process add to the anguish of those who already have been subjected to unimaginable pain and suffering? Recently, there have been numerous media reports regarding celebrity justice. Unfortunately, verdicts in celebrity cases are much more favorable to the defendants than those in which indigent defendants are represented by attorneys who are sometimes ill-equipped to provide effective representation. The Pledge of Allegiance ends with the words "with liberty and justice for all." We must ensure that justice is, indeed, for all -- not just for those who are able to pay for it. But the most appalling evidence of human error in our system is that in recent years, more than 100 death row inmates have been released not on legal technicalities but because they were proven to be innocent, some within hours of their scheduled executions. I can neither imagine the unspeakable pain and suffering of the victims of violent crime nor the anguish of their loved ones. But there is an alternative to execution: life imprisonment without parole. Can we continue to tolerate a system where the potential for the killing of innocents exists? (source: Herald-Leader; Penelope J. Evans of Lexington is a member of the Kentucky Coalition to Abolish the Death Penalty. CONNECTICUT: Logic that supports death penalty flawed Editor: >From time to time, my job as executive director of the Connecticut Network to Abolish the Death Penalty is made easy. Since there are so many flaws in our criminal justice system (there have been 119 people released from death rows in our nation over the last 30 years due to innocence) and because the logic of the death penalty is not there (we teach people killing people is wrong by killing people), when a person like Stephen Woodruff writes an emotion-based letter in support of the death penalty, it simply points out all that is wrong with capital punishment. The only thing Stephen Woodruff proved in his letter supporting the death penalty is he likes to generalize and stereotype people, which is a form of prejudice. It is also clear he simply does not know his facts about capital punishment. What his letter does do is point out one of the many inherent problems with capital punishment. In his letter, Mr. Woodruff says capital punishment is a good idea because if we killed those who kill, then they can never kill again, as in the case of Thomas Wood. So, if that is his logic, what does he suggest we as a society do with all those people who are convicted of attempted murder, for they had the intention of killing, but just failed? Does he suggest we kill them also? Where do we draw the line? The system of capital punishment is arbitrary and capricious. That is just another reason why this cost-ineffective system of vengeance needs to be abolished. ROBERT NAVE----Executive Director, Connecticut Network to Abolish the Death Penalty (source: Letter to the Editor, Norwich Bulletin) OHIO: Clemency Hearing Scheduled for Inmate Herman Ashworth The Ohio Parole Board will conduct the clemency hearing for death row inmate Herman Ashworth, #A348155, on Wednesday, August 31, 2005 at 10:00 a.m. The hearing will take place at the Adult Parole Authority Office located at 1030 Alum Creek Drive, Columbus, Ohio. Any media wishing to attend should arrive at the site no later than 9:45 a.m. If you plan to attend the clemency hearing, please contact the DRC Public Information Office no later than Friday, August 19, 2005. For more information, please contact the DRC Public Information Office at (614) 752-1150.
