Sept. 6 ALABAMA: FOP asks judge to condemn Spencer to death A national police union is asking Jefferson County Circuit Judge Tommy Nail to override a jury's recommendation and condemn Kerry Spencer to death for killing 3 police officers. Sgt. Allen Treadaway, president of the Birmingham Fraternal Order of Police chapter, hand-delivered to the judge a resolution passed at the national conference in New Orleans in August with the unanimous vote of 4,000 delegates representing more than 320,000 police officers across the country. The national FOP's auxiliary group, made up mostly of law enforcement spouses, also passed a resolution calling for the execution of Spencer. "Our purpose was not to make a political statement. It was not to have a public debate over the death penalty. It was to let the judge know in this case how the law enforcement community feels about this issue," Treadaway said. "The judge has seen the pain from the families involved in this tragedy, but we wanted him to know how painful this has been for all law enforcement and how important it is to us." Nail will sentence Spencer on Friday. A jury in June convicted him on 4 counts of capital murder in the deaths of Birmingham police officers Carlos Owen, 58, Harley Chisholm III, 40, and Charles Robert Bennett, 33. The 4th capital murder charge is for killing 2 or more people during 1 act. The officers were killed June 17, 2004, while trying to serve a months-old misdemeanor warrant on Nathaniel Woods, Spencer's roommate, at their Ensley drug house. Woods will be tried in October. The jury took only 4 hours to convict Spencer, but deliberated 2? days before recommending the judge sentence him to life in prison without the possibility of parole. State law requires at least a 10-2 vote for a death recommendation. At least 7 votes are needed to recommend life without parole. The recommendation outraged Birmingham area law officers and officials. Alabama Attorney General Troy King said he was "shocked and sickened" by jury's decision. "State law allows a judge to override a jury and we feel that's certainly fitting in this situation. We know the jury certainly struggled with this issue," Treadaway said. "It is our position if ever a crime warrants the death penalty, this certainly is it." Treadaway said officers and the union remained quiet on the issue during the trial. Now that sentencing is near, he feels the need to speak out. "We think it's important not only to punish someone for taking the life a police officer, let alone three, who is out there protecting us," he said, "but the message must be sent that the taking the life a police officer will result in death because as we know on the streets we work out here there are people who don't fear, as they put it, 3 hot meals and a cot." (source: Birmingham News) MARYLAND: Md. Trial Dates Set for Sniper Deaths John Allen Muhammad is to stand trial May 1 in the 6 Maryland deaths linked to the 2002 Washington-area sniper spree, a judge ruled Friday. His alleged accomplice, John Lee Malvo, will be tried beginning Oct. 10, 2006. The men are charged with 6 counts of 1st-degree murder in the October 2002 deaths in Montgomery County. Both already have been convicted of shootings in Virginia. Authorities there agreed to send the pair north for prosecution after Maryland promised to return them when their trials are over. Malvo, 20, appeared by closed-circuit television from the Montgomery County Correctional Facility, speaking only when the judge asked questions about whether he waived his right to a speedy trial. Muhammad, 44, did not appear at all. Muhammad's lawyer, Paul DeWolfe, had argued unsuccessfully Friday for a later trial date. Prosecutors had asked for a January or February trial for Malvo, but defense attorney William Brennan had conflicts with other cases in those months. Muhammad's trial could last 2 months, depending on whether the state attempts to seek a death penalty, DeWolfe said. Malvo, who was 17 at the time of the shootings, is not eligible for the death penalty. His trial will run 6 to 7 weeks, Brennan said. Muhammad was convicted of a sniper shooting in Manassas, Va., and sentenced to die. Malvo is serving a life term in prison for a shooting in Falls Church, Va. The 2 are accused of killing 10 people and wounding 3 in Virginia, Maryland and Washington, D.C. They have also been linked to shootings in Alabama, Georgia, Louisiana and Washington state. Louisiana and Alabama also have plans to prosecute Muhammad and Malvo. (source: Associated Press) CALIFORNIA: Nation's late death row bill blasted Prisoner advocates blasted last-minute legislation that would require an independent review of San Quentin's plans for a new death row. Critics attacked a bill introduced by Assemblyman Joe Nation, D-San Rafael, and state Sen. Jeff Denham, R-Merced, late last month - just as the legislative session heads to a close Friday. "When Joe Nation and his pals look at San Quentin, they see dollar signs," said Barry Zack, executive director of San Rafael-based Centerforce, a federally-funded organization serving prisoners and their families. "They don't see the 50,000 family visits that take place there every year, or the dozens of positive programs happening each day." Zack said more studies aren't needed because the $233 million death row needs to be built at San Quentin - not at other sites in the state. "San Quentin is a flagship in rehabilitation programs," Zack said. "The last thing we need is to close prisons in metropolitan areas that have access to the courts and prisoners' attorneys." The bill, in the Assembly's appropriations committee, would require the state Department of Corrections and Rehabilitation to look at other sites for the death row - instead of a 40-acre tract next to the aging prison on the bayfront near Larkspur Landing. The corrections department last month said it would cut the number of cells in the new facility from 1,024 to 768 to curb cost overruns. A state Department of Finance memo noted that, without the cutbacks, the project cost was estimated at $265 million - $45 million more than the $220 million originally appropriated. The cut in the number of cells would reduce the cost to $233 million, the state said, still 6 percent over budget. Nation said the death row would be full in a few years. Then, the state would be forced to look at other sites because there is no expansion room at San Quentin, he said. "The facts in this case are clear," Nation said. "This expansion of death row is a short-term solution; we'll be back to where we started in just a few years." Nation said the expansion of death row at San Quentin "doesn't make any sense at all for a state that doesn't have money to spare or to waste." Corrections officials say they need the new facility because the current death row is crowded, with security so inadequate that the lives of prisoners and guards are at risk. Nation and Marin officials including Supervisor Steve Kinsey say they don't argue with the need for better housing for condemned inmates, but they question the economics of building the death row in Marin. "If we were looking for a new location for a death row, we would not put it on the one of the most expensive places on the bay near San Francisco," Nation said. Debbie Reyes, of the California Prison Moratorium Project, claimed Nation's real goal was not just to move the new death row out of Marin, but to close San Quentin all together. "The only winner would be whoever got to redevelop the San Quentin site and build the new prison," Reyes said. Marin officials, who have filed suit challenging the death row's environmental impact report, have said the property would have more regional benefit as a transit hub or affordable housing. "It's not my job to determine what the re-use will be," Nation said in response to Reyes' comments. "My job is to determine whether this is the right investment for California." Nation, a death penalty opponent, said he agreed with comments by Ari Wohlfeiler of Critical Resistance, a community safety group in Oakland. "If they really want to save money on a death row, what about ending the death penalty?" Wohlfeiler said. Nation said he supported a proposal in the Legislature for a death penalty moratorium, but acknowledged "it was very much a long shot." "It doesn't mean we shouldn't do it," Nation added. (source: Marin Independent Journal) NEW YORK: Court Urged to Rule On Constitutionality Of Capital Statute The Association of the Bar of the City of New York is pressing New York's highest court to take a legal and political plunge by putting an end to capital punishment once and for all. Appearing amicus curiae in the first capital case to reach the Court of Appeals since the tribunal rendered the statute unenforceable nearly one year ago, the city bar argues that the judges should grasp for the thorny constitutional questions that even the defense agrees the Court needs to reach in order to resolve the appeal of Robert Shulman. Regardless, and well aware that the Court of Appeals is generally loath to venture further than necessary, the city bar's Committee on Capital Punishment is urging a full-fledged examination of capital punishment, and a conclusion that no death penalty statute could satisfy the heightened constitutional safeguards in the state Constitution. The essence of the brief filed by Joshua L. Dratel is that the death penalty should be adjudicated under a strict scrutiny test - meaning that to survive constitutional muster capital punishment would have to be the least restrictive remedy to achieving a valid state interest. And it argues that the Court of Appeals should apply that test here and now in the case of People v. Shulman. "The Governor and the Legislature asserted three interests that the death penalty may serve: deterrence of future serious crime, incapacitation of dangerous criminals, and retribution against those who have committed evil deeds," Mr. Dratel argues in the brief (available at http://www.abcny.org/pdf/report/shulmanamicus.pdf). "However, they cannot carry their burden of showing that the death penalty is the least restrictive means to any of those ends." Mr. Dratel and the city bar urge the Court to put the death penalty to a full, probing judicial examination, which they argue it will never pass. "Although capital punishment was added to New York law by the democratic process, this Court must test the action of the political branches for consistency with the constitutional requirements of due process and strike it down if it impermissibly interferes with the citizenry's fundamental rights," Mr. Dratel said in his brief. Governor George E. Pataki and the Republican-controlled Senate are eager to rectify the statute and restore capital punishment. But the Democratic Assembly has refused to take action. Shulman arrives on direct appeal even though the Court in People v. LaValle, 3 NY3d 88, last year rendered the death penalty null by declaring a key provision both unconstitutional and unseverable. In LaValle, the Court struck the so-called "deadlock provision," which required judges to advise jurors that failure to reach unanimity on a sentence of either death by lethal injection or life imprisonment without the possibility of parole would result in a parole-eligible term. The Court found the provision coercive. Mr. Shulman was sentenced to death before LaValle was decided. But even though the death penalty is no longer an option in that case, there are numerous appeal issues ranging from relatively routine suppression questions that would have arisen whether the matter was a capital prosecution or not, to issues that would arise only in a capital appeal. 'Shulman' Background The case centers on the gruesome homicides of 3 prostitutes.Mr. Shulman, a 42-year-old postal worker, was arrested in 1996 and prosecuted in Suffolk County, where 2 of the bodies were found. All of the women had been bludgeoned to death, dismembered and deposited in Dumpsters or trash bins. One victim, Kelly Sue Bunting, was found near a Melville factory on Dec. 11, 1995. Another, who was never identified, was discovered dead at the side of a Medford road a year earlier. The third victim, Lisa Ann Warner, was found at a Brooklyn recycling plant in April 1995. Mr. Shulman was convicted of one count of 1st-degree murder, for which he was sentenced to death, and 1 count of 2nd-degree murder, for which he was sentenced to a 25-year-to-life term. The defense, led by Andrew C. Fine of the Legal Aid Society's criminal appeals bureau, portrays a defendant with a troubled childhood, a family history of mental illness and at least 2 suicide attempts. It challenges the voluntariness of a confession obtained during a round-the-clock interrogation and claims police should have videotaped the confession. It also raises numerous issues regarding jury selection, including a question of whether the trial judge correctly overrode the defense counsel's strategic decision to keep a juror who believed the defendant was guilty but had qualms about the death penalty. Initially, it also raised several issues unique to a death penalty prosecution, including the bedrock question of whether the death penalty is per se unconstitutional under the state Constitution. However, the defense has apparently abandoned that avenue, admitting in its brief that many of the death penalty-specific issues were rendered moot by People v. LaValle. The key defense issue seems to be the basis for the 1st-degree murder charge. That charge was brought under the theory that Mr. Shulman murdered Ms. Bunting and "intentionally caused the death of 2 . . . additional persons within the state in separate criminal transactions within a period of 24 months . . . in similar fashion." Mr. Fine, who will be joined by associate counsel Arthur H. Hopkirk and Denise Fabiano, argues the provision is unconstitutionally vague. Arguing for the prosecution are 3 Suffolk County assistant district attorneys: Guy Arcidiacono, Glenn Green and Michael J. Miller. They contend the conviction should stand, but acknowledge that two prior capital precedents, Matter of Hynes v. Tomei, 92 NY2d 613, and People v. Harris, 98 NY2d 452, "preclude affirmance of Mr. Shulman's capital sentence." Mr. Shulman went to trial under a statutory scheme that was stricken in Hynes v. Tomei (1998) and People v. Harris (2002). The decisions dealt with a plea-bargaining provision that permitted suspects to avoid the possibility of a death sentence by pleading guilty, thereby exposing defendants to the death penalty because they exercised their constitutional right to a jury trial. People v. Robert Shulman, 130, is the only case on the calendar for today. Arguments are expected to last all afternoon. (source: New York Law Journal)
