Nov. 5 MARYLAND----new execution date Ehrlich Gives Execution Order----13-Year-Old Sentence Stayed During Race Study Maryland Gov. Robert L. Ehrlich Jr. has signed a death warrant for condemned inmate Wesley E. Baker, ordering what would be the state's 1st execution in more than a year and the 2nd since 1998. Baker's sentence was stayed 3 years ago to give state-sponsored researchers time to complete an analysis of racial and other inequalities in the application of the state's death penalty law. Ehrlich (R) signed a warrant Thursday for his execution during the 5-day period beginning Dec. 5, acting on the same day that prosecutors requested the warrant and choosing the earliest date available under the law. "This is the shortest window we've ever had in anyone's memory," said Baker's attorney, Gary W. Christopher, who may seek to have the warrant stayed and, if that fails, the sentence commuted. "There's just an enormous amount to do in a short period of time." Jervis Finney, Ehrlich's chief legal counsel, said the governor believes such "proceedings should take the normal course and not go on forever." Baker was sentenced to death 13 years ago for murdering Jane Tyson in a Catonsville mall parking lot. Last month, the state's highest court denied Baker's argument that disparities documented by the researchers rendered his sentence illegal. The researchers found that prosecutors were far more likely to seek the death penalty for black suspects who, like Baker, were charged with killing white victims. The study, commissioned in 2000 by then-Gov. Parris N. Glendening (D), fueled efforts to impose a moratorium on executions and to push anti-death penalty measures in the legislature, none of which passed. "Maryland has not addressed what the findings of the study were," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "Nothing has been done by the governor, by the legislature, by the courts." (source: Washington Post) ******************** Ehrlich signs warrant, setting Dec. execution Gov. Robert L. Ehrlich Jr. has signed a warrant scheduling the execution of death row inmate Wesley E. Baker in December for the 1991 killing of a Baltimore County woman in front of her grandchildren in a mall parking lot. The governor signed the death warrant late Thursday afternoon, exactly one month after Maryland's highest court rejected on procedural grounds Baker's bid to have his sentence overturned. Baker's lawyers based the appeal on a University of Maryland study that found racial and geographic disparities in the state's use of capital punishment. Court of Appeals decisions do not become final until 30 days after an opinion is issued. The order schedules Baker, 47, to be put to death by lethal injection during the week of Dec. 5. Gary W. Christopher, a federal public defender and one of Baker's attorneys, expressed concern yesterday over the timing of the execution order- both in terms of when the warrant was sought and the 4-week window between the date of the order and scheduled execution. State law requires that an execution be scheduled within 4 to 8 weeks of the issuance of a death warrant. Christopher said he had thought that Baltimore County prosecutors would seek a death warrant next week. When he learned yesterday morning that they had made their request Thursday afternoon, he faxed a letter to the governor, asking Ehrlich to wait for Baker's latest round of legal challenges - filed 2 weeks ago - to make their way through the courts. "By the time the governor got it, it was too late," Christopher said. "They'd already issued the warrant. There's no reason for these appeals to be under the glare of an issued warrant." The most recent appeal asks the court to reopen Baker's post-conviction proceedings to consider the state-funded University of Maryland death penalty study. Stephen Bailey, Baltimore County's deputy state's attorney, said those issues were decided by the appeals courts. "We didn't feel there was any reason not to move the process forward," he said. Baker was convicted of murder in 1992 for killing Jane Tyson, a 49-year-old teacher's aide. She was shot June 6, 1991, in front of two of her grandchildren in the parking lot of Westview Mall in a robbery that netted $10. He was originally scheduled to be put to death the week of May 13, 2002. But on May 9, then-Gov. Parris N. Glendening imposed a state moratorium on executions while the University of Maryland death penalty study was completed and reviewed. Because Glendening stayed Baker's execution, the request for a new death warrant had to go to the governor's office rather than to a Circuit Court judge, as is typically the case. Christopher, the defense attorney, said he intends to ask for a new stay of execution. (source: Baltimore Sun) MISSOURI: Experts: Too few 'learned counsel' to handle death penalty cases One day in April 1995, attorney Joanne Descher learned she had been appointed to represent a Missouri prisoner in his federal appeals of 1st-degree murder convictions that carried a death sentence. Descher, practicing securities law at the time, didn't know anything about the highly specialized body of law and procedure known as habeas corpus, the crux of her client Marlin Gray's federal appeal. Few lawyers know this odd hybrid of civil and criminal law, which is complex, time-consuming, and not at all lucrative. "It's an expertise that's hard to come by," said James Woodward, federal court clerk for the Eastern District in St. Louis, which assigned Descher the case. In fact, few lawyers volunteer for defense in death penalty trials or appeals because they are economically and emotionally demanding and not financially rewarding, said Sean O'Brien, one such defender since 1983. O'Brien heads the nonprofit Public Interest Litigation Clinic and is a visiting professor at the University of Missouri-Kansas City law school. O'Brien said it's a "horrible idea" for civil law practitioners to be thrown into habeas corpus, where federal courts examine state court proceedings for constitutional problems. He said it is a complex specialty fraught with procedural land mines that trip up even skilled lawyers and may cause a client to lose a case. And they are up against seasoned specialists in the attorney general's office. "There are a thousand ways to accidentally lose a case," he said. Legal experts in Missouri and around the U.S. say a 1996 federal law left prisoners with even fewer avenues for habeas corpus relief as Congress responded to calls to speed up the death penalty process. The Anti-Terrorism and Effective Death Penalty Act of 1996 severely restricted the legal basis for arguing that lower court proceedings should be reviewed for constitutional errors. It shortened deadlines and limited what federal courts could consider for a 2nd look at a case. "People think there's all these legal loopholes in getting a conviction set aside, but the reality is it is government that has all the loopholes and procedural barriers," said Richard Sindel of St. Louis, one of a small pool of Missouri attorneys considered to be the caliber of "learned counsel" required in a 1988 law for federal death penalty cases. "You rarely are able to present the issues of the case. The law sets up all these barriers." The Effective Death Penalty Act of 1996 also permits states to speed the flow of death penalty cases by opting into an expedited litigation schedule - but only if the states improved the level of defense at capital trials. O'Brien said Missouri has tried to become an "opt-in" state but so far hasn't produced the needed reforms. "A lot of these cases have real problems with proficiency of counsel. Arguments are not made, leads are not followed through, objections are left out," said David Elbaum, a New York civil lawyer appealing the murder conviction and death sentence of Reginald Clemons, Marlin Gray's co-defendant in the 1991 murder of 2 young women at an abandoned Mississippi River Bridge in St. Louis. Elbaum and 2 other attorneys, including a former federal prosecutor, were recruited for Clemons' pro bono defense by the NAACP Legal Defense and Educational Fund. Ronald Tabak, pro bono coordinator for the Skadden firm of New York, said civil attorneys should do habeas corpus petitions in capital cases "only if" they are extensively trained and mentored by experts in criminal and capital law. Descher got Marlin Gray's case because she had agreed to take some pro bono cases as a condition of being admitted to the federal court bar here. Federal clerk Woodward said most federal judges in St. Louis are impressed by civil attorneys' vigorous representation of their criminally charged clients. Descher said she dove into the Gray case, found mentors and speed-learned the law. She also leaned on co-counsel Kent Gipson in Kansas City, who had experience in federal habeas corpus petitions. "I realized the magnitude of the appointment, that it was a life and death situation," she said. "I had to try the best I could." After a 10-year haul, the appeals were unsuccessful, and Gray was executed on Oct. 26. On Monday, spokesman Scott Holste said the Missouri Attorney General's office was within weeks of asking the Missouri Supreme Court to set an execution date for Clemons. His attorneys said they will continue his appeals. Descher, who now practices civil, commercial and family law, isn't sure she would accept another death penalty case. "Professionally it was challenging, but it changed me as a person," she said. "I got a firsthand look at what the process is of trying to rectify wrongs that occurred at trial and found it so very, very difficult to do, so difficult to achieve justice." She said so many points were barred from consideration that she found herself less ambivalent and more opposed to the death penalty by the time it was all over. "I have no confidence in how the death penalty is administered," she said. "There are too many mistakes made, too much room for error." (source: Associated Press) CALIFORNIA: Death row plan OK'd over Marin objections State officials yesterday ignored warnings that San Quentin State Prison's new death row will cost more than $300,000 per cell and voted unanimously to approve the project's preliminary construction plans. It was the last public vote necessary before construction can begin. "This is a $1 billion boondoggle and the governor is still asleep," said Assemblyman Joe Nation, D-San Rafael, after the packed meeting of the state Public Works Board. "This is a huge disappointment." The public works board's 3-0 vote came just hours before Sacramento Superior Court Judge Lloyd Connelly denied Marin County's request for a temporary restraining order to block the state Department of Corrections and Rehabilitation from taking further action on the project. "I don't see that there will be any irreparable harm occurring in the next 15 days," Connelly said. "The project isn't due tobreak ground until June 2006." Connelly's ruling was in response to a lawsuit filed Wednesday by the Marin County Board of Supervisors. The suit claims the state Department of Finance violated state code when it approved a revised scope for the $233 million, 768-cell maximum security facility. State code allows for no more than a 20 % increase in a project's cost from the level of funding authorized by the Legislature, and the finance department's approval of the revised scope was inappropriate, the county claims. The county wants the downsized project sent back to the Legislature for reconsideration. Connelly set a Nov. 21 hearing date on the county's lawsuit. Even before the judge denied the temporary restraining order, state corrections staff were moving ahead with the new death row. "I've already called our architect and told him to begin refining our drawings and get them ready to go out to bid the construction contracts," said George Sifuentes, facilities manager for the corrections department, after the public works board vote. Sifuentes said he expected to start advertising the first bid for demolishing old buildings at the site by February." The death row, to be built on the bayfront near Larkspur Landing, was approved by the state Legislature in 2003 for 1,024 cells at a cost of $220 million, but in August was shrunk to 768 cells after projected costs rose to $265 million. At $233 million, the new proposal is a 6 % increase in cost from the original $220 million. But the county argues that, with the reduced scope, it amounts to an effective 30 to 35 % increase in the price tag. "What happened today is the public works board washed its hands from recognizing the significant reduction of scope in the project with an increase in costs," said Marin Supervisor Steve Kinsey, who testified along with Nation before the public works board. "It's not just an expensive ferry boat they're dry-docking there on the bay - it's a continuing wake of waste that will ripple out for the next 100 years." The $233 million in total charges means each of the the 768 cells would cost more than $300,000. The new death row would be one of the most expensive public building projects to be located in Marin. "Obviously this can't be a good decision," Kinsey told the public works board. "This is the most expensive land in California - bayfront land in a vibrant urban setting - and the most difficult place to staff a prison and the highest cost of construction." State Finance Director Mike Genest, a member of the public works board and chairman of yesterday's meeting, said the board "was not a policy-making body and we have no jurisdiction to act on a decision that has been already made by the Legislature." The board reviews state public works projects to determine whether plans are in order. Other voting members of the public works board were Will Kempton, of the Department of Transportation, and Barry Hemphill of the Department of General Services. Cindy Aronberg, of the state controller's office, was part of the board meeting, but her office does not vote on bond matters. Genest noted that lawmakers did not oppose the reduced scope in a Sept. 16 letter from the Joint Legislature Budget Committee. He asked for comment from Jeanne Woodford, former San Quentin warden and now state corrections department undersecretary. Woodford said the corrections officials had considered alternative sites for death row other than San Quentin, but none seemed viable due to public opposition. "Over the years, we've looked at housing condemned inmates at Pelican Bay, Folsom and even Corcoran (state prisons)," Woodford said. "There isn't any community that has said, 'Bring death row to our community.'" Woodford said the need for more secure death row housing was increasingly critical. When she was warden, she said, 2 death row prisoners almost escaped due to faulty security. "We've run out of room, and the public safety risks in our current facility are very clear," Woodford said. "We need a modern facility." She maintained the revised project would accommodate condemned prisoners until 2026, and that the new cells would be large enough to double-bunk the death row inmates. She said at least 2 other states are already double-bunking condemned prisoners. "At least 80 % of death row inmates behave just like the general population," Woodford said. "I do not see any reason why we cannot double-cell them." Nation said later that Woodford's comments contradicted statements from other corrections staff at last week's hearing in San Rafael. At that hearing, some officials said the long-range plan was to come back for more money to build another expansion of death row when they run out of room. Nation said last week the new death row will be filled to capacity within 2 to 3 years of opening in 2008. "The Department of Corrections is contradicting itself every step of the way," Nation said. "They're going to say anything they have to say to move this project forward." Nation and Kinsey say they realize the need for safer housing for condemned inmates, but that the San Quentin site would have more regional benefit as a transit hub and transit-oriented waterfront community. Kinsey said the county would "continue to find ways to get this plan before the governor." Kinsey and Nation were promised a hearing on the issue 10 months ago before Gov. Arnold Schwarzenegger's staff, but so far the event has not been scheduled. Marin County also has an earlier lawsuit pending against the death row's environmental impact report. A hearing on that suit is set for Dec. 14. COMPARING PRICE TAGS At $233 million, the San Quentin State Prison's new death row, approved for construction yesterday, is one of the most expensive public building projects to be located in Marin. Here are some of the others: - Marin Civic Center, San Rafael, built in 3 phases from 1959 to 1971 for a total $19.9 million. - Buck Institute for Age Research, Novato, built in 1996 for $100 million. - Marin County Jail, San Rafael, built in 1994 for $27 million. - Marin City public housing and retail complex, approved in 1992 for $110 million and opened in 1996. - Original San Rafael Courthouse, built in 1904 for $45,000, expanded in 1938 for $125,000, remodeled and expanded in 1949 for $400,000. (source: IJ library archives) (source: Marin Independent Journal) KANSAS: ALI KEMP CASE----Law is clear about death penalty cases It took Kansas many years to pass a law allowing capital punishment, and its terms reflect the reservations held by lawmakers. Only the "worst of the worst" killers were meant to be sentenced to death. Authors of the 1994 law had sound reasons for limiting its scope. Other states were straining under the costs and emotional toll of numerous death penalty trials and appeals, many of them successful. Kansas legislators decreed that death sentences could be imposed if a defendant was found guilty of first-degree, capital murder, and if the case met at least 1 of 8 aggravating factors. At the same time, they required that persons convicted of capital murder but not sentenced to death would serve lengthy prison terms of up to 50 years without the possibility of parole. Death penalty cases are emotionally and financially consuming and often cause years of pain for families and communities. Kansas lawmakers were wise in their wish to limit capital punishment to the most heinous of crimes. Whats best for a state doesnt always meet the needs of a grief-stricken family, however. Ali Kemp was a college student with a promising future when a stranger strangled her in June 2002 at a Leawood swimming pool. The killing was a terrible tragedy for her family and community. Roger Kemp, Alis father, voiced anguish after Paul Morrison, the Johnson County prosecutor, said he would not seek the death penalty for the man accused of the murder. Sympathy goes out to the Kemp family. But Morrison made the right call under Kansas law. "The facts of this crime are horrifying," said Michael Kaye, who teaches criminal law at Washburn University. "But murder alone is not punishable by death in our state. It's got to be beyond that." Kansas law allows a prosecutor to seek a death sentence if the defendant acted "in an especially heinous, atrocious or cruel manner." Morrisons judgment is that Kemp's murder doesn't meet that standard. A body of legal opinion backs up this judgment. In a 1980 case, Godfrey v. Georgia, the U.S. Supreme Court overturned a death sentence, ruling that "especially heinous, atrocious and cruel" must be narrowly defined to involve circumstances such as torture. That decision has formed a precedent in other death cases. Prosecutors often bear the brunt of anguish brought on by difficult decisions concerning capital punishment. But integrity requires a prosecutor to place current law above emotion. Morrison did that. (source: Editorial, Kansas City Star) FLORIDA: Bill Seeks Unanimous Jury Votes To Execute 2 state lawmakers say they plan to introduce legislation next year that would change how Florida courts impose the death penalty. The legislation, being proposed by Sen. Alex Villalobos, R-Miami, and Rep. Jack Seiler, D-Pompano Beach, would require unanimous jury votes to recommend death sentences. Currently, state law requires a simple majority of a 12-member jury. Although judges sentence defendants convicted of first-degree murder to death or life in prison, they are expected to give "great weight" to the jury's recommendation. The proposal comes in response to last month's state Supreme Court decision in the case of Alfredie Steele Jr., a Lacoochee man charged with 1st-degree murder in the shooting death of a Pasco County sheriff's lieutenant. Written by Justice Raoul Cantero III, the court's majority opinion included a suggestion that the Legislature change the state's death penalty statute to bring it more in line with recent U.S. Supreme Court rulings and other states' death penalty laws. Villalobos and Seiler said they interpreted the court's opinion in the Steele case to mean that Florida's death penalty law could be successfully challenged if left unchanged. "I'm a supporter of the death penalty," Villalobos said. "I believe if we don't fix it, we're going to get in a situation where everyone sentenced to death in Florida might get a rehearing, and their sentence might change. That would just cause chaos." Opinion A Wake-Up Call? Considering that the opinion came from Cantero, a conservative justice, it should be a wake-up call to legislators, Seiler said. "So many times, we sit and say that the court is activist or is overreaching," Seiler said. "Here, I think the court politely sent a very clear message." It's unclear whether the legislation would even make it out of committee hearings. Legislative committees also can amend bills so that the finished product bears little resemblance to what was initially submitted. Even if a bill makes it out of committee, the Senate president and the speaker of the House can kill it by refusing to bring it to a vote. Senate President Tom Lee, R-Brandon, said he would not stop Villalobos' bill from being debated on the Senate floor. "I think this is an important issue for the Legislature, even if they decide they want the status quo," he said. "It'll be very healthy, I think, for us to have a debate about why Florida is the only state in America that doesn't require a unanimous consent for the death penalty." Lee said debate over the bill is likely to lead to discussions about other areas of death penalty law, such as whether a judge or a jury should sentence a defendant. Seiler said he has spoken briefly about the bill with Speaker Allan Bense, R-Panama City. Bense spokesman Towson Fraser said Bense has seen no evidence that change is needed. "Unless there is some indication that Florida's death penalty statute is in jeopardy, the speaker would not favor requiring a unanimous jury vote for the recommendation of death," Fraser said. Seiler said Bense's position doesn't necessarily mean he will quash the bill. He said Bense has been a fair speaker with a record of giving bills a hearing in the House. Legislators are scheduled to be in Tallahassee next week for committee meetings. The general session begins the first week of March. No Guidance Since Ring V. Arizona Florida's death penalty has been under scrutiny since the U.S. Supreme Court's 2002 decision in Ring v. Arizona. In Ring, the court held that juries, not judges, should decide whether a defendant is sentenced to death. The Florida Supreme Court has never issued a definitive ruling on how the state's trial judges should deal with Ring. That has left trial judges presiding over 1st-degree murder cases without guidance. In Steele's case, the appeal came when Circuit Judge Lynn Tepper attempted to satisfy what she saw as concerns related to the Ring decision. Prosecutors appealed, disagreeing with Tepper's attempts, which included the use of a special verdict form detailing juror votes on aggravating factors. Aggravating factors are elements of a crime or a defendant's history that provide the legal justification for imposing the death penalty. In recommending life or death, jurors weigh aggravators against mitigating factors presented by the defense. The 2nd District Court of Appeal referred the case to the state Supreme Court. The high court issued its ruling Oct. 12. Steele is still awaiting trial. (source: Tampa Tribune) ********************* Jury picked for Carlie Brucia slaying trial In Sarasota, a jury of 8 women and 4 men has been seated to hear the trial of the man accused of kidnapping, raping and killing 11-year-old Carlie Brucia last year. Following two weeks of screening, the panel plus 6 alternates were chosen yesterday for the trial of Joseph P- Smith. The trial opens Monday. Smith could face the death penalty if convicted. Prosecutors say Smith is the man captured on a car wash security camera grabbing Carlie by the arm as she walked home from a friend's house on February first, 2004. Her body was found 4 nights later on the grounds of a nearby church. Smith was arrested on unrelated drug charges 2 days after Carlie disappeared. According to testimony in pretrial hearings, Smith confessed to the slaying to his mother and brother during a jailhouse visit and then helped them lead authorities to Carlie's body. (source: Associated Press)
