Oct. 20 DELAWARE: Capano Sentence Reconsidered -- 11-1 jury vote recommending death not enough, lawyer argues Delaware Supreme Court justices raised the possibility of overturning Tom Capano's death sentence Wednesday and either letting the one-time millionaire spend the rest of his life in prison or holding a new penalty hearing in the case. Chief Justice Myron T. Steele and Justice Randy J. Holland led the questioning during an appeal hearing, focusing on a key defense contention that Capano's death sentence should be set aside because jurors, after the 1999 trial, did not unanimously agree there was an aggravating circumstance that qualified Capano for execution. At trial, prosecutors said Capano killed Anne Marie Fahey, the scheduling secretary to then-Gov. Tom Carper, in 1996 because she was about to break off an affair. Capano, a former state deputy attorney general, was not in the courtroom Wednesday, but the man who led the prosecution, U.S. Attorney Colm F. Connolly was, sitting next to Kathleen Fahey-Hosey, sister of Capano's victim. Four justices and Vice Chancellor John Noble, sitting in for Justice Carolyn Berger, who recused herself, heard the arguments, giving each side 25 minutes to make its case. Berger is not required to disclose her conflict, and did not. Capano attorney Joseph Bernstein said the jury's 11-1 vote that the murder was premeditated meant it failed to find Capano eligible for the death penalty "beyond a reasonable doubt" -- just as an 11-1 vote in a criminal trial fails to result in a conviction. An aggravating circumstance, such as premeditation, is necessary to impose the death penalty in Delaware. Although the state Supreme Court turned down a previous appeal by Capano, Bernstein said the U.S. Supreme Court's 2002 decision in the Ring v. Arizona case has changed the law. In the Ring decision, the justices ruled that a jury, not a judge, had to determine whether a case merited the death penalty. Bernstein said Capano's case is unique among the death penalty cases that have been reconsidered in Delaware since the Ring decision because of the 11-1 vote. In all the other cases, juries were unanimous in their findings about death penalty eligibility, he said. Capano also is arguing that he had ineffective counsel at trial, but Bernstein did not address those arguments Wednesday, nor were they brought up by prosecutors or the court. Assistant U.S. Attorney Ferris Wharton, who was arguing on behalf of the state, said that the defense's interpretation of the Ring ruling is too broad. Wharton was the state's prosecutor at Capano's trial. Wharton said the Ring ruling only applies to states where the jury has no role in deciding death penalty eligibility. That does not apply to Delaware, he said, because at the time of the Capano trial, the jury had an advisory role in the decision and the judge made the final determination. But even if the justices disagree with that reasoning, Wharton said, the Ring ruling does not require the jury to be unanimous in its finding of eligibility for the death penalty. Bernstein countered that if the state's argument is accepted, it would set a lower standard for finding someone eligible for the death penalty than for finding someone guilty of murder. "Where is the logic [in that]?" he asked. That seemed to strike a chord with Holland, who asked Wharton whether allowing an 11-1 vote instead of a unanimous jury verdict would fly in the face of more than 200 years of tradition in Delaware requiring juries to be unanimous. "That is where we need help to sort it out ... either you require it or you don't," he said. Holland also seemed concerned about what standard would be used for a jury vote on death penalty eligibility if unanimity was not required. "Would 9 to 3 be enough?" If the justices decide the Ring decision requires setting aside Capano's death sentence, then the 11-1 vote should be treated like a hung jury, Wharton said. That would allow prosecutors to conduct a second penalty hearing with a new jury to decide whether Capano should get the death sentence. Justice Henry duPont Ridgely, however, said such a ruling could allow prosecutors to seek endless rehearings until they get the recommendation they want. At the end of the proceeding, Bernstein would not speculate on the court's ruling but said he felt good about the arguments he made. "I don't have a crystal ball," he said. "You can draw your own conclusions from the questions asked." Wharton said he thought it went well enough. "I came out alive," he said. Fahey-Hosey said she found the proceeding "very technical." But she said the Fahey family will continue to attend every proceeding "to fight Anne Marie's last fight." At the same time, Fahey-Hosey said if the choice is between giving Capano life in prison or going back to Superior Court for a new penalty hearing, "I'd rather he just get life and get back into the regular prison population." Going through the penalty phase again -- where Anne Marie's death would be described in detail to a jury and the family would be called on to tell a jury about their loss -- would be difficult, she said. The court is expected to make a decision in the next several months. If Capano fails in this appeal to the state Supreme Court, he still has appeal options in the federal courts. His execution remains on hold while his appeals are pending. (source: Delawareonline) NORTH CAROLINA: Audit: N.C. prison system overpays employees North Carolina's prison system may never recover all overpayments to guards and other workers, partially because of the high rate of turnover, prison officials said in response to a state audit. "We're doing a lot better job of collecting," Barbara Baker, the prison's head of procurement and finance, told the News & Record of Greensboro. "But I don't know if we'll ever catch up." The audit released Wednesday found that on average, 54 prison workers a month get salary or other payments they should not. The report says the prison system doesn't expect to collect at least $154,000 of those overpayments, although that figure could be higher. In 7 months last year, prisons overpaid workers $242,000. The problem is not new. "We first noticed this issue during the 2000 fiscal-year audit," said Dennis Patterson, a spokesman for the Office of the State Auditor. Patterson could not say whether the overpayments have been an ongoing problem or may have been corrected in the past and then reoccurred. The prison system has about 20,000 employees and has a payroll of more than $54 million a month, which means the overpayment rate is relatively low, Baker said. Baker and Pam Walker, a spokeswoman for the prison system, said a high turnover rate is partially to blame. More than 300 workers leave the prison system every month, the report said, and the prisons use direct deposit to pay salaries and other benefits such as workers compensation. The prison system taken some protective steps, such as using new computer software to better track when employees should not be paid, they said. But overpayments likely will continue, they said. "It's a constant challenge for us," Walker said. "We're doing all we can to make sure that it doesn't happen, but I think it's going to continue to be a challenge." Walker pointed out that it was prison chief Theodis Beck who asked for part of the review audit. The agency sought the audit April 1 after The Charlotte Observer requested contracts that revealed a pattern of multiple purchases, some just days apart, for the same goods. Many orders were valued a few hundred dollars below the $5,000 limit for ordering without seeking competitive bids, according to an Observer review. Buying in small quantities is "likely to increase costs," said the 15-page report released Wednesday. But auditors could not say whether "the failure to seek competitive bids" cost taxpayers more money. Walker said the purchasing problems were limited to Correction Enterprises, a Correction Department unit that operates prison factories where inmates work. The unit's management told auditors they were "not aware or only vaguely aware of state purchasing rules." Managers also said they knew contracts were split into small orders, thought that was permitted and had been doing it for more than 9 years. Purchasing policies have been clarified, and workers made more aware of them, Walker said. (source: Associated Press) ****************** Death penalty foes plan forum People of Faith Against the Death Penalty will host a forum Nov. 14 on the future of the penalty. The forum, at 7 p.m. at the Chapel of the Cross, 304 E. Franklin St., will examine the chances for a moratorium on executions in 2006. Participants will include local organizers, PFADP staff, attorneys and lobbyists as well as state Reps. Joe Hackney and Verla Insko and state Sen. Ellie Kinnaird. For more information, contact Justin Harvey at 933-7567 or [email protected] or Martin Caver, at 933-7567 or mca...@pfadpp (source: The Herald-Sun)
