Oct. 20 TEXAS: The Flame Still Burns, Part II In Part 1, Cameron Willingham was charged with and convicted of murdering his 3 children, after a fire he was accused of starting ravaged their home. "I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do," declared Cameron Willingham right before he was executed in Texas for setting fire to his Corsicana, Texas home, which took the lives of his 3 daughters. Willingham spent 13 years on death row at Huntsville State Prison, one of the toughest in Texas. Testimony alleging that he confessed guilt to a jailhouse snitch, along with Willingham's former neighbors' claims that he didn't try hard enough to save his children, all but sealed his fate. The smoking gun for prosecutors was the testimony by arson investigators that the fire in Willingham's home was deliberately set, having 3 points of origin. As a matter of procedure, Willingham's appellate attorneys filed one appeal after the next. By January 2004, with all avenues of relief exhausted, a date of Feb. 17 was set for Willingham's execution. With only weeks to go before Willingham was scheduled to die, one of his cousins, Pat Cox, happened to see a television program that featured Gerald Hurst, an industry-renowned arson expert. Cox, who believed strongly in Willingham's innocence, thought perhaps Hurst could help prove her right. She contacted Willingham's appellate attorney, Walter Reaves, who had run out of ways to help his death-bound client and figured anything was worth a shot. Upon hearing some of the key elements that sent Willingham to death row-including the report written by one of the original arson investigators, Manuel Vasquez, outlining his theory that the Willingham fire was deliberately set-Hurst became intrigued. He agreed to review the entire case, free of charge. Hurst poured over trial testimony as well as an hour-long videotape of the wreckage. Immediately, it was evident to Hurst that many of the conclusions of the original arson investigators did not measure up to the NFPA 921, the standard National Fire Protection Association document used by fire investigators as a guideline. NFPA 921 had been published 6 weeks after the fire at the Willingham home. Key testimony by arson experts at Willingham's trial may have left no doubt with the jury that convicted him, but the jurors had no way of knowing that the theories of arson presented by experts were probably wrong. "At the time of the Corsicana fire, we were still testifying to things that aren't accurate today," said Edward Cheever, one of the state deputy fire marshals who had worked on the initial investigation of the Willingham inferno. What investigators considered to be true and accurate conclusions at the time have become outdated theories. 13 years later, investigator Hurst was able to dispute the 20 indicators of arson cited by the original investigators. Experts had indicated such things as weblike patterns, called "crazed glass," as signs of arson. They believed that this was a sure sign that an accelerant was used. In recent years, experts have determined that the weblike patterns that appeared post-fire actually occurred when the water used to extinguish the fire hit the hot glass. 4 days before Willingham was scheduled to die by lethal injection, his attorney sought relief one last time from the Texas Court of Criminal Appeals and Gov. Rick Perry, based on a report by Hurst, who had concluded that the Willingham fire was not arson. According to Hurst, "most of the conclusions reached by the fire marshal would be considered invalid in light of current knowledge." This time, Willingham's attorney, Reaves, believed his client actually had a chance for things to go his way. At the very least, Reaves believed Willingham would be granted a hearing, during which time he could present the new facts that had come to light. After all, Hurst, a renowned expert, had been instrumental in helping exonerate others in similar circumstances as Willingham. Local prosecutors balked at the notion of holding a hearing based on the report of investigator Hurst. They argued that even if Hurst was correct and the Willingham fire was accidental, it didn't fall under the category of newly discovered evidence, and could have been presented years earlier. The appeals court and Gov. Perry agreed with prosecutors and turned aside the Hurst report. The truth wasn't relevant. Cameron Willingham's life was inconsequential. Due process had taken place. Ironically, 6 months after Cameron Willingham was executed, Hurst was instrumental in the exoneration and release of another man on death row in Texas, Ernest Willis, whose circumstances were almost identical to that of Willingham. Willis spent 17 years on death row before Hurst was able to show scientifically that Willis was convicted based on a now outdated understanding of the physics of fire analysis. Subsequently, 3 additional fire experts were called on by a local Texas newspaper to review the case. All 3 came to the same conclusion as Hurst: The fire that Cameron Willingham would die for setting was an accident. It was too late, though, for their findings to help Cameron Willingham. He knew he was going to die, according to his father, Gene Willingham. Since 1973, according to the Death Penalty Information Center, 121 prisoners condemned to die have been released from U.S. death rows after evidence of their innocence came to light. Countless others-like Cameron Willingham-have gone to their deaths, despite doubts as to their guilt. Imagine what they were thinking. (source: Axis of Logic) ********************** Condemned man's claim could throw twist into cases Jaime Elizalde Jr. always said he was innocent of the murder that sent him to death row. Now, he claims he already killed the real killer. The claim could profoundly affect him and another man serving time in a Texas prison. Elizalde, who is scheduled for execution in 2 weeks, claims in a sworn statement that in January 1995 he strangled Albert Guajardo with a nylon rope and then hit him on the head several times with a blackjack. After noticing that he was still alive, Elizalde took a large hunting knife and slit his throat. His body was found rolled up in a carpet that had been dumped in a ditch in northeast Harris County. "The reason I did it was because a substantial amount of drugs were stolen from me by Albert after he entered my home along with some paperwork with certain information he had no right to possess," he says in the affidavit. In a separately filed clemency petition before the governor and the state Board of Pardons and Parole, Elizalde's attorney claims it was Guajardo who had killed 2 men outside an east Houston cantina in November 1994 - the crime that landed Elizalde on death row in 1997. He is asking to have the Nov. 2 execution date set aside. The Harris County District Attorney's Office is investigating, and a spokesman said Wednesday that it is too early to judge the merit of Elizalde's confession. "It's early on, and we've still got a lot of investigating to do," said Assistant District Attorney Jack Roady. But the statement already is being used by the attorney for the man serving a life sentence for Guajardo's murder. Norman Silverman filed a request in state district court and a state appeals court that Elizalde be brought back to Harris County to testify about the Guajardo murder. "If it looks like it can't be accomplished in time, we'll ask about rescheduling" the execution, Silverman said. Silverman represents Hermilio Herrero Jr., who was convicted of Guajardo's murder 3 1/2 years ago and sentenced to life in prison, largely on the testimony of two fellow prison inmates who said Herrero had bragged to them about killing Guajardo. At the time, Herrero was serving time in a Beaumont federal prison for drug crimes. Family contacted Silverman said Elizalde contacted Herrero's family earlier this year and said he had something to tell them. He visited Elizalde on death row in Livingston and got the confession signed Oct. 12. Jaime Elizalde's sister, Veronica Elizalde, said this week that her brother had never talked about the Guajardo murder and that she was both surprised and confused. "I'm not sure why he did it," she said. Elizalde's attorney for the clemency petition, Lubbock-based lawyer Philip Wischkaemper, said the pardons and parole board should look only at the issue of whether Elizalde committed the cantina murders. Wischkaemper filed that petition just a day after Elizalde signed the confession. Retardation claimed Wischkaemper said the clemency appeal focuses on the innocence claim and includes "good evidence of mental retardation." To support the latter claim, he notes that Elizalde was tested in April 1990 when he was sentenced to state prison for a drug-related offense. The test showed he had an IQ of 60, well below the standard used for mental retardation. While incarcerated for 4 years, Elizalde was a leader of the Mexican Mafia prison gang. He reportedly stabbed someone in prison and assaulted guards. In a death-row interview last week, Elizalde said he "had nothing to do with this case," referring to the one he is currently imprisoned for. "From the get-go, I've maintained my innocence," he said. "Why would I kill 2 men outside a bar where everybody knew me?" Elizalde acknowledged that he is "no saint." But it was neither he nor his father, Jaime Elizalde Sr., who killed Juan Saenz Guajardo and Marcos Sanchez Vasquez outside El Lugar Drive Inn more than a decade ago, he said. Pool game sparked quarrel The 2 men had quarreled a few days before with the elder Elizalde over a pool game, Elizalde Jr. said. On the night of the murders, both men arrived at the bar separately and at different times, and sat on opposite sides of the room. Elizalde Sr. was using a pay phone outside the cantina when he gestured to the victims to come outside. Elizalde Jr. reportedly pulled a gun out from his waistband and shot the men to death. It is unclear whether there is any relation between Juan Saenz Guajardo and Albert Guajardo. Speaking from behind a Plexiglas window on a telephone last week, Elizalde said he knows who killed the two men. At the time, he would not divulge any names because he said he didn't want to put his family in jeopardy. Also, he added, "I despise a snitch." (source: Houston Chronicle) OHIO: Ohio Parole Board rejects Spirko clemency bid -- Recommends Taft uphold death penalty For the 2nd time in two months, a divided Ohio Parole Board recommended Wednesday that death-row inmate John Spirko be denied clemency for the 1982 slaying of a rural Ohio postmaster. By the same 6-3 margin in an August recommendation to Gov. Bob Taft, the board majority said Spirko's claims about a flawed investigation and trial were not persuasive and that the inmate's own words were enough to convict him in 1984. "The majority is not convinced that any manifest injustice occurred in Mr. Spirko's case," the 6 wrote. In a dissent, three board members said too much doubt has been raised about Spirko's guilt to execute him. They recommended that Taft commute his sentence to life in prison without parole. Execution requires "the most stringent test of due process," they wrote. "We are left to wonder if that threshold has been met in Spirko's case." Unless Taft rejects the board's recommendation, which he has never done in a death penalty case, Spirko is scheduled to die Nov. 15 for the murder of Elgin, Ohio, postmaster Betty Jane Mottinger. Spirko still has a review pending before a federal judge, who has agreed to examine documents that could cast further doubt on the credibility of retired postal inspector Paul Hartman, the investigator most responsible for putting Spirko on death row. No physical evidence ever connected Spirko to Elgin or Mottinger. But prosecutors said he committed the murder with his best friend, Delaney Gibson, and argued that Gibson was seen in Elgin the day of the crime. The dissenters said they doubted that theory, and they noted that evidence putting Gibson 600 miles away from Elgin the evening before the murder was not given to the defense. The fact that Gibson was never prosecuted added to their doubts. The 6 didn't agree that the Gibson evidence was intentionally withheld, saying Spirko's trial lawyers simply made a "strategic decision" not to pursue it. They said that Spirko knew crime details that had not been made public and that they were not convinced that Hartman might have supplied them. The 6 deferred to the 1984 jury's assessment of Spirko's alibi and certain other evidence, saying that "the jury was in the best position to assess credibility regarding this testimony." (source: Cleveland Plain Dealer) USA: More Fuel Added to Debate Over Federal Habeas Review----New data, new bill intensify the exchange If the chief judges of state and federal appellate courts, the organized national bar and a host of others say that a bill that would strip the federal courts of nearly all authority to review state convictions and sentences is a mistake, you'd think the bill's proponents might back down. Think again. Just over a week ago -- and only a week after a second cautionary letter from the Judicial Conference of the United States -- the Senate Judiciary Committee was prepared to vote on S. 1088, the so-called Streamlined Procedures Act of 2005, making the most sweeping changes in federal habeas review in a decade. But lack of a quorum and strong objections by some Democratic senators forced a delay in the chairman's call to vote out the bill and deal with its problems later. The bill's sponsor, Sen. Jon Kyl, R-Ariz., and supporters are expected to try again. But this time, a substitute measure -- offered by judiciary Chairman Arlen Specter, R-Pa. -- will be on the table, and Democratic committee members have pressed successfully for a public hearing on it on Oct. 26. SPECTER'S SUBSTITUTE Specter, who had sought unsuccessfully to get a vote on his substitute at the meeting less than 2 weeks ago, said then that his version meets the concerns of the Judicial Conference. That's news to the policy-making body of the federal judiciary. "Our people hadn't seen it by then," said Richard Carelli, a spokesman for the Administrative Office of the U.S. Courts. "I'm assuming we will have some reaction to it." But the substitute amendment, by virtue of its very existence, fails to do the one thing that federal and state chief judges have urged the senators to do: conduct a study on whether there is any unwarranted delay in resolving habeas corpus petitions in the federal courts. The Judicial Conference recently sent the committee the results of a preliminary review of statistical data on the federal courts' handling of noncapital and capital habeas cases filed by state prisoners. Based on that analysis, "The Conference does not believe that the data as a whole supports the need for a comprehensive overhaul of federal habeas jurisprudence," wrote Leonidas R. Mecham, conference secretary and director of the Administrative Office of the U.S. Courts, the management arm of the federal judiciary. "We oppose the [Specter] substitute," said Kyle O'Dowd, the legislative affairs director for the National Association of Criminal Defense Lawyers. "We don't think it's a reasonable legislative proposal. Senator [Russell] Feingold [D-Wis.] said this is a solution in search of a problem. There needs to be some systematic study of the issue before we even talk about legislation." But the Specter proposal is "a good and necessary" bill, said Kent Scheidegger of the Criminal Justice Legal Foundation. The Antiterrorism and Effective Death Penalty Act of 1996 "didn't accomplish what states wanted to see done," he insisted. "There's no confidence that is going to happen. The courts have had 10 years to implement AEDPA." FAST-TRACK REFORM The debate has now boiled down essentially to 2 problems that Kyl believes justify a habeas overhaul: delay -- both in handling state prisoners' habeas corpus petitions and in carrying out death sentences -- and a broken bargain under the 1996 AEDPA, which itself imposed sweeping limits on federal habeas review. AEDPA promises that if the states establish procedures for the appointment, compensation and payment of reasonable litigation expenses of competent counsel for indigent death row inmates in post-conviction cases, the states can take advantage of AEDPA's expedited time frames for federal review of habeas petitions. The federal circuits decide whether a state qualifies for "opt-in" status. To date, only Arizona is an opt-in state. On the delay issue, the Judicial Conference recently reported to the judiciary committee that it reviewed statistical data compiled for fiscal year 2004 and found the following: District Courts: There were 18,432 noncapital habeas corpus petitions filed by state prisoners in U.S. district courts, and 6,774 in U.S. courts of appeals. The total number of terminations for 2004 showed that the federal courts are bringing to conclusion nearly as many noncapital habeas petitions from state prisoners as are filed annually. The median time from filing to disposition for those cases in the district courts has remained relatively constant since 1998, and in 2004 was 6 months. In the courts of appeals, the median time also remained relatively stable between 1998 and 2004, ranging from 10 to 12 months. "Thus, the statistics appear to indicate that the district and appellate courts are handling noncapital habeas corpus petitions originating from state prisoners expeditiously," said Mecham. For capital habeas corpus petitions, the data showed that from 1998 to 2002, more cases were filed in district courts than were concluded. As a result, the number pending increased from 466 at the end of 1998 to 721 at the end of 2002. But in 2003 and 2004, the number terminated nearly equaled the number filed, so the growth in the pending caseload slowed and was 732 at the end of 2004. The median time from filing to disposition of state capital habeas cases was 13 months in 1998; 24.5 months in 2001; 20 months in 2003; and 25.3 months in 2004. Habeas scholar Ira Robbins of American University Washington College of Law said that he could only speculate on why the disposition time for state capital habeas nearly doubled in the district courts from 1998 to 2004. "In that 6-year period, habeas corpus has gotten increasingly difficult," he said. "While Congress may have intended to speed up the process, new statutes like AEDPA often tend to slow it down -- especially when there is a long period of interpretative, or 'shake-out,' litigation, as there has been with AEDPA. "This is one of the arguments against the pending habeas legislation: Now that the interpretative period of AEDPA has matured and judges know how to work with it, it would only slow down the process to add yet another layer of habeas complexity," he said. Circuit Courts: In the courts of appeals, the Judicial Conference reported that the number of terminations of state capital habeas corpus appeals kept pace with the number of filings between 1998 and 2000. But in 2001, the number filed was more than the number terminated, which increased the number of cases that are pending. From the end of 1998 to the end of 2004, pending state capital habeas cases rose from 185 to 284. The median time from filing to disposition of capital habeas appeals ranged from 10 to 13 months between 1998 and 2002. The median time increased to 15.5 months in 2001; dropped to 13 months in 2003; and rose to 15 months in 2004. Those appeals pending 3 years or more increased from 5 (2.7 % of all pending state capital habeas cases) at the end of 1998 to 36 (12.7 %) at the end of 2004. Without further information, the conference, said, "The judiciary is unable to draw a definitive conclusion" as to the causes for these increases or whether the time frames are unreasonable. BROKEN BARGAIN The debate over whether circuit courts have refused unfairly to certify states as "opt-in" states under AEDPA is mostly an anecdotal one. There appear to be no studies supporting either view. Thomas Dolgenos, chief of the Federal Litigation Unit of the Philadelphia District Attorney's Office, said: "A fair number of states have tried but none has been able to meet the requirements to the satisfaction of the courts. The feeling around prosecutors I've spoken to about it is the system is sort of rigged. We're not sure if we're ever going to get compliance. A lot of states thought they should now be in compliance. They've taken steps but can't convince the circuits of that." But long-time capital litigator George Kendall, senior counsel to Holland & Knight, called the opt-in reason a "red herring." "Most states tried to opt-in right after AEDPA in cases pending," he said. "They wanted certification and hadn't crossed their 't's and dotted their 'i's. "In most other cases, the states don't care to opt in. They don't have to provide lawyers and don't have to spend any money, because the general amendments to habeas in the 1996 act really cut it back. It's not like states have been going back and back and courts are irresponsibly saying, 'No, we're not going to certify.'" American University's Robbins, who tracks habeas corpus decisions for his habeas textbook, agreed, saying, "I think it is generally accepted wisdom that states have stopped trying to opt-in because AEDPA's general habeas corpus reform provisions are already enormously state-favoring. As far as I know, there has been no major litigation on the opt-in question in a long time -- at least not at the circuit court level." SUBSTITUTE HABEAS The Specter substitute reduces the amount of jurisdiction-stripping in the original Kyl bill, said opponents and supporters, but is still not acceptable to most of the original opponents. On the opt-in issue, Specter adopts the Kyl approach that would give the U.S. attorney general the authority, and not the circuit courts, to determine whether a state qualifies as an opt-in state for the benefit of expedited review procedures in capital cases. But Specter would not, as Kyl would, eliminate all federal habeas review once a state has qualified. Both approaches would make the proposed review changes applicable to all cases pending at the time of enactment of the legislation but Specter eases the new time limits if they would have started for some cases on a date before enactment. For procedurally defaulted claims, both senators would require the habeas petitioner to show cause why the claim was not raised in state court and add a requirement that the petitioner show he or she was innocent of the underlying crime. Specter would provide some narrow protection for the attorney-client relationship when an indigent petitioner asks the court for funds to hire experts or investigators. He, like Kyl, still would prohibit ex parte communications with the judge on that request and require notice to the government and an opportunity to respond. Stephen Saltzburg of George Washington University Law School, who has been working on alternative proposals on behalf of the American Bar Association and the Constitution Project, said there should not be much federal review when a petitioner has gone through state procedures and the state courts did it right. "I understand the goals [Kyl and supporters] have," he said. "But that doesn't mean you have to basically cut off federal habeas completely. The problem is Arizona has a pretty good system, but a lot of other states don't. In some jurisdictions, it's a necessary protection." (source: National Law Journal) NEW YORK: 'Karla': Earle's dis to death penalty Talent, fame, wives, drugs, divorce, jail and redemption - Steve Earle's life could be a country song. It has certainly been, at the least, theatrical.Now, the country rebel's latest challenge takes him to the theater realm with "Karla," his Off-Broadway "old-fashioned 95-minute one-act play" about the 1st woman executed in Texas since the Civil War. Earle is having coffee a block from the 45 Bleecker Theatre, where "Karla's" limited-engagement begins Sunday. The Grammy-winning Texan so identified with the South has some surprising traits: He has embraced New York, has an apartment on Jones St. and is a lifelong Yankees fan. And the tough-hombre musician is more likely to attend a play than live music, and thought "Caroline, or Change" was "brilliant." But "Karla," which stars Obie Award winner Jodie Markell in the title role, isn't musical whimsy. "The play opens with her execution," says Earle, "and everybody in it is dead." The story follows Karla Faye Tucker - the double murderess who found God while awaiting execution - into the afterlife, where she encounters, among others, her victims. Earle started writing the play six years ago, after a stint in rehab and in the midst of a creative regeneration. He initially staged "Karla" in his adopted home of Nashville, where "people who go out to theater want to see the touring company of 'Cats.'" In Tennessee he had to create an audience; here he just has to convince one. Earle is an overtly political artist. "Karla," though, is "artistically motivated. "I'm opposed to the death penalty," he says, "but the play isn't my diatribe. It's about forgiveness." Nonetheless, the larger goal is to eradicate execution in America, and, adds Earle, "I believe music and different forms of art can do that better than rhetoric." For instance, "the wrongful convictions thing has turned around the energy toward the death penalty, and 'The Exonerated' was a big part of that." An Off-Broadway smash in 2003, "The Exonerated" featured a rotating cast of celebrity actors telling the stories of 6 innocent death row survivors in their own words. Allan Buchman, artistic director of the Culture Project theater group, met Earle while developing that play. More than Earle's artistic director, he's a believer. "Clearly, many of [Earle's] songs are like miniplays," says Buchman, "so his skills as a storyteller are highly developed. And his personal experience in witnessing an execution brought a subtext." Now there's an understatement. Earle came to know 11 men on death row - "none of them innocent." He witnessed the lethal injection of one, Jonathan Nobles, on Oct. 7, 1998. Watching what he believes to be state-sponsored murder shook Earle to his foundations. "My opposition to the death penalty isn't about saving anybody on reath row - it's about keeping me from going to hell." Well, hell has many rooms, and theater critics have sent their share of playwrights there. Earle does worry about being dismissed as a dilettante, "but it's not gonna stop me from writing another play." That confidence will come in handy. Buchman reminds: "Even the most seasoned playwrights are nervous before exposing their work to the sometimes heartless critics of New York." Earle is ready to face his judges. (source: New York Daily News)
