Sept. 19 DELAWARE: Court upholds killer's death sentence----Man who strangled pregnant woman can't raise new arguments on appeal The Delaware Supreme Court has denied convicted killer Brian D. Steckel's appeal of his death sentence. Now, the state Attorney General's Office is expected to return to Superior Court and seek a new execution date. In an opinion signed by the full court and made public last week, the justices affirmed Steckel's conviction and death sentence, saying it was too late for him to make new arguments. Steckel was convicted in 1996 of raping and strangling a pregnant 29-year-old woman in 1994, then setting fire to her apartment. Before his capture, Steckel called The News Journal to brag about the killing and during his trial he sent a copy of victim Sandra Lee Long's autopsy to her mother. He wrote on it, "Read it and weep, she is gone forever. Don't cry over burnt flesh." This was the 2nd attempt by Steckel to overturn his death sentence. Earlier, he unsuccessfully argued he had ineffective legal representation at trial. In this appeal, Steckel argued through attorney Joseph Bernstein that Delaware's death penalty law was unconstitutional. The argument was expected to be a preview of arguments Bernstein will make on behalf of Tom Capano, the one-time millionaire convicted of the 1996 murder of Anne Marie Fahey. Fahey was the scheduling secretary for then-Gov. Tom Carper, now a U.S. senator. The state Supreme Court, however, didn't get to the merits of Steckel's argument on that point, ruling he was procedurally barred from raising new issues on appeal. Such arguments have to be made within three years, according to the opinion, and Steckel's convictions became final in 1998, meaning his options expired in 2001. This latest argument was first made in court papers in May 2004. While the Supreme Court did not directly address Steckel's appeal arguments in its decision, a footnote appears to signal that such an argument would have failed anyway. "We note that this Court has held that Delaware's hybrid form of sentencing ... is not contrary to the Sixth Amendment of the United States Constitution," justices wrote. Law changed The U.S. Supreme Court ruled in 2002 that juries -- not judges -- must decide whether a case qualifies for the death penalty. The 2002 ruling applied to Arizona, Colorado, Idaho, Montana and Nebraska, which until then had relied on judges alone to decide whether cases qualified for the death penalty. Delaware had a similar law, allowing juries only to advise whether a case qualified for the death penalty. The General Assembly changed Delaware's law in June 2002 to comply with the U.S. Supreme Court decision, and today juries here must unanimously agree on whether a case qualifies for the death penalty. Delaware judges still have the final say on whether to order it. Not a surprise Bernstein said the Steckel decision was not a surprise. And while the footnote would seem to be a bad sign for Capano, Bernstein said the questions about the constitutionality of Delaware's death penalty law is "only a small part" of Capano's argument. "His case is completely different," Bernstein said. Even if Capano fails at the state Supreme Court, he still has appeals options in the federal court system. (source: The News Journal) USA: Stones in the pathway of justice One concept both sides of the death-penalty debate can embrace is this: If America continues to allow people to be executed, we better make absolutely certain those getting the ultimate punishment are both truly guilty and deserving of capital punishment. Legislation quietly wending through Congress would create more uncertainty in the application of the death penalty. After the Senate Judiciary Committee concludes hearings on the John Roberts' nomination to the Supreme Court, it will consider a bill to strip federal courts of the power to review state criminal cases for constitutional error. The Streamlined Procedures Act, authored by Jon Kyl (R. Ariz.), is being steamrolled through the United States Senate. If it passes, it will create a conveyor belt to the death chamber and virtually eliminate a hallmark of American justice -the writ of habeas corpus. For centuries, habeas corpus has been a means for prisoners to challenge the constitutionality of their convictions or sentences in the federal courts. The Streamlined Procedures Act would eliminate the power of the federal courts to preserve the integrity of the constitution and protect the rights of our citizens. The proposed legislation will fracture the carefully structured mosaic of laws and court decisions that guide the habeas corpus review process. Nine years ago, Congress amended the habeas corpus statute with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), and in the process created a colossal, unwieldy law with numerous ambiguous provisions. Since then, federal courts, including the Supreme Court, have been deciphering those provisions and have made the habeas corpus process operate efficiently. Kyl's legislation would upset many of the decisions the Supreme Court has made to address ambiguities in AEDPA and would introduce additional provisions that would require many years to interpret. A salvo of constitutional challenges would be unleashed. Pending cases, including 63 Arizona death penalty cases now in the federal courts, would be held up while the courts resolve questions about the meaning of the new law. The legislation comprises a shocking about-face, coming at a time when more and more death row prisoners are proving their actual innocence or demonstrating their trials were unfair - unfair because of misconduct by the prosecutor or because their lawyers were ineffective - most often by asserting their rights under the habeas corpus statute. Moreover, it comes at a time when Congress is making a concerted effort to improve the administration of justice. Just last year, with the overwhelming passage of the Innocence Protection Act, Congress acknowledged the need for additional safeguards and oversight to prevent errors in our criminal justice system. President Bush also recognized the need for fair proceedings in death penalty cases in his State of the Union address this year. By limiting federal review, the Streamlined Procedures Act will erode many of these protections. Habeas corpus review by federal courts is not a mere stall tactic, as supporters of Kyl's legislation suggest. The writ is a pathway to justice. Sometimes the path is circuitous, but most wrongfully convicted people who are exonerated only establish their innocence after first proving that they received inadequate representation or were victims of serious prosecutorial misconduct. All too often today, federal habeas corpus proceedings provide the only opportunity to establish constitutional violations that occurred at trial and pave the way for additional proceedings at which innocence can be proved. It is telling that opposition to Kyl's legislation is coming from some unusual quarters - the Judicial Conference of the United States, the Conference of State Chief Justices, former federal and state judges and prosecutors, the Rutherford Institute, and former Congressman Bob Barr, to name a few. Since Congress passed the AEDPA nine years ago, many flaws in our administration of justice have come to light. Rather than obliterate the process of federal review, we should do more to ensure that the courts fully and fairly study the merits of these cases. When it comes to capital punishment, Americans deserve more certitude, not more attitude. (source: Arizona Republic -- Dale A. Baich is an assistant federal public defender who handles death penalty appeals. He is an adjunct professor of law at Arizona State University College of Law) MASSACHUSETTS----re: federal death penalty trials US judges battle on makeup of juries----Plan to seat more blacks criticized A judge's plan to try to get more African-Americans on a federal death penalty case by targeting certain ZIP codes with additional jury summonses has triggered an extraordinary legal battle that could change how all federal juries are selected in Boston. Federal prosecutors contend that US District Judge Nancy Gertner skewed the randomness of jury selection and overstepped her authority with her plan to change how jurors are chosen in a case set for trial before her. Defense lawyers argue that prosecutors are trying to keep blacks off " juries. "It seems to me that they're trying to keep black people and poor people off the juries in federal court, in this particular case and every case," said Randolph Gioia, a Boston lawyer who represents Darryl Green. Green is one of 2 blacks who face the death penalty if convicted of killing a gang rival 4 years ago. "I guess they feel it gives them a better chance of conviction with fewer black people and fewer minority people," Gioia said. A statement issued by US Attorney Michael J. Sullivan's office yesterday said any suggestion that the office opposed Gertner's order "because it supports or wishes to continue any under-representation of any segment of the population is misleading and false." The chief judge of the federal court in Boston has asked a panel of judges to consider drafting a new jury plan for the whole court. In a 95-page opinion last month, Gertner said it was "profoundly troubling" that an all or mostly white jury could decide the fate of Green and Branden Morris, who face the death penalty if convicted of killing Terrell Gethers during Boston's Caribbean Carnival in August 2001. While Morris and Green are scheduled to go to trial next spring, two codefendants, Jonathan Hart and Edward Washington, were slated to go to trial Monday on racketeering charges. In her opinion, Gertner found that court officials rely on flawed residency lists provided by cities and towns when notifying people to appear for jury duty, leading to an underrepresentation of black jurors in federal court. She cited a study that indicated wealthier towns with fewer minority residents keep more accurate residency lists than more diverse cities, including Boston. As a result, Gertner found, a higher percentage of jury summonses sent to minorities come back as undeliverable or go unanswered, often because the person has moved. She ordered the jury administrator to follow up when a notice is returned as undeliverable by randomly sending a new jury summons to another resident in the same ZIP code. If a summons goes unanswered, Gertner said, court officials should send a second notice. If there's still no response, a new summons should go to another resident in the same ZIP code, she said. Additional summonses targeting specific ZIP codes have already gone out for jury selection in Hart's and Washington's case, but yesterday the US Court of Appeals for the First Circuit prohibited court officials from using any jurors who were summoned that way if they go forward with jury selection Monday. The appeals court said it was only granting the prosecution's request for a stay to give everyone involved in the case more time to file briefs, and was not taking any position on the legality of the new jury selection plan ordered by Gertner. The Appeals Court scheduled a hearing Oct. 3 to hear arguments in the case. The appeals court also granted an unprecedented request yesterday from US District Chief Judge William G. Young to file a brief in the case that will outline his position on the court's jury plan. In a letter to the court Wednesday seeking permission to be heard in the case, Young said he has appointed a committee of 5 judges, including Gertner, to "consider the profound issues" raised in her opinion and decide whether to come up with a new permanent plan for the whole court. On Tuesday, Sullivan's office asked the appeals court to issue an emergency stay to halt Monday's jury selection, arguing that Gertner lacked the authority as an individual judge to change how jurors were chosen in a particular case. A statement released yesterday by Sullivan's office said it appealed the ruling because "any changes to the jury selection plan should be enacted by the district court as a whole and applied to all sessions to avoid the potential for inconsistencies from one case to the next." Although Young said he would not comment on the specifics of Gertner's opinion, he said during a meeting with reporters last week that he believes she had the power to make the ruling. "I think it places a difficult, challenging and very important issue before the court," he said. Patricia Garin, a Boston lawyer who represents Morris, said, "The defendants are all young African-American men and the prospect of facing a jury that has no African-American person on it, no persons of color on it, means to them that they're being judged by people from which a large segment of the community is missing . . . and that means they're not getting a fair trial." (source: Boston Globe, Sept. 16)
