Nov. 7 KANSAS: Kurtis to share death penalty insight >From his Chicago office, Bill Kurtis isn't oblivious to the rumblings in Kansas. Especially when it comes to one of his favorite topics -- the death penalty. The former Kansas newsman, one time gladly in favor of it, now offers his take on why capital punishment should be abolished. "One of the big arguments of Kansas is it's just too expensive," said Kurtis, who on Friday will speak at a Washburn University School of Law event about the death penalty. Kurtis graduated in 1966 from the law school and then launched his career in broadcast journalism in Topeka. He quickly moved on, working for CBS News, and now hosts or produces programs for cable's A&E network -- "Cold Case Files" and "American Justice." Last year, he wrote a book -- "The Death Penalty on Trial: Crisis in American Justice" -- about why the death penalty should disappear from the justice system. He will talk about his findings at 7:30 p.m. at Washburn University's Bradbury Thompson Center, S.W. 17th and Jewell. ** THE SPEECH Who: Bill Kurtis What: "What I Have Learned About the Death Penalty" Time: 7:30 p.m. Friday Place: Washburn University's Bradbury Thompson Center, S.W. 17th and Jewell, Topeka Sponsored by: Washburn University School of Law Center for Excellence in Advocacy and the Kansas Coalition Against the Death Penalty 38 states with the death penalty Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Illinois, Kansas*, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York*, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming * The New York (6/24) and Kansas (12/17) death penalty statutes were declared unconstitutional in 2004. 12 states without the death penalty Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin Source: Death Penalty Information Center, www.deathpenaltyinfo.org The presentation is open to the public. ** "It comes at a good time for Kansas," Kurtis said during a telephone interview last week. In Kansas The Kansas Supreme Court in December 2004 struck down the state's death penalty, saying the law was written in a way that violated the federal prohibition against cruel and unusual punishment. The state has appealed to the U.S. Supreme Court, which will hold oral arguments Dec. 7. The case has both political and legal implications in the Sunflower State. 6 men could be set free from death row should the death penalty be struck down. Kansas Attorney General Phill Kline has a lot riding on the issue, pledging to argue the case himself before the U.S. Supreme Court in defense of the state's death penalty statute. The case also has spurred renewed discussion about whether the Legislature should do away with the death penalty, which was reinstated in 1994 but has yet to result in any executions. If the Kansas court's decision is upheld, proposals are certain to hit the Legislature to put the death penalty back on the books. 'Too many mistakes' Now comes Kurtis. He said that when he attended law school at Washburn he was fully in support of the death penalty. And he lived out nearly an entire career in television journalism -- covering court issues -- steadfastly in that camp. He covered such notorious murder cases as that of Charles Manson and serial killer John Wayne Gacy. "I was ready to pull the lever on all of them," he said. Then, Kurtis said, a DNA investigation exonerated 13 death row inmates in Illinois, where Kurtis now lives and works. Subsequent studies by court experts showed flaws in even more death penalty cases nationally. "In our justice system, we have a 50-50 chance of being right. Death is too serious a thing to get wrong," Kurtis said. "My bottom line is we just make too many mistakes." In his book, Kurtis analyzes 2 capital punishment cases -- one in Arizona and one in Pennsylvania -- in which the convicted killers eventually were freed from death row. Kurtis wanted to reveal what went wrong in each case. In the Arizona case, the problem was sloppy work by police and prosecutors. At one point, prosecutors ignored evidence from a bite mark expert who was steering them away from the falsely accused. The bite mark proved critical in the man's conviction, which later was overturned. By that time, Arizona had wasted 10 years in legal expenses and had to pay the man $1.4 million in restitution, Kurtis said. In Pennsylvania, witnesses changed their stories throughout the litigation. All told, Kurtis said, he found 8 reasons why people are improperly sentenced to death -- including overzealous prosecutors, corrupt policemen and unreliable witnesses and jailhouse informants. Kurtis said he hasn't been actively pushing for states to abolish their death penalties. But he was asked recently to testify before New York lawmakers. And earlier this year, Kurtis submitted comments to the Kansas Senate Judiciary Committee. Kansans react Kansas death penalty opponents are chomping at the bit for capital punishment to be abolished. What had seemed a futile battle since the death penalty was reinstated in 1994 was given a shot in the arm by the Kansas Supreme Court ruling last year. "It gave a lot of hope," said Donna Schneweis, director of the Kansas Coalition Against the Death Penalty. Right now, they are playing the waiting game. The U.S. Supreme Court could rule during the next legislative session, which begins Jan. 9. If the court upholds the state ruling, death penalty supporters will begin pushing to have the law reinstated. That could be easily done -- most believe the death penalty has strong support in Kansas and the flaw in the current law could be changed through a simple language fix-up. But opponents say the death penalty is too expensive in Kansas -- given the costs for mandatory appeals -- and that convicted killers should be given life in prison without parole instead. Supporters say Kurtis' concerns don't fly in the Sunflower State. Sen. Phillip Journey, R-Haysville, said the current Kansas death penalty is narrowly drawn to allow only a limited number of cases to be tried under its provisions. The suspect in a recent Johnson County murder case involving the attempted rape of a 19-year-old girl, although high profile, won't be tried under the death penalty because prosecutors didn't believe the crime was accompanied by enough aggravating factors. He said concerns about overzealous prosecutors, bad defense lawyers and jury error are overblown. "(Kurtis) paints Kansas with far too broad a brush," he said. (source: Topeka Capital-Journal) OHIO: Ruling still pending from high court in Richey case The U.S. Supreme Court has met 3 times to discuss and rule on cases in the past month and has yet to issue a decision in Kenneth Richey's death penalty case. The case has sat in limbo with the nation's highest court since one of its justices intervened in July, preventing the state from retrying Richey after the 6th Circuit Court of Appeals overturned his conviction. The state filed the appeal to the high court trying to overturn the ruling but also was preparing to retry Richey for the 1986 death of 2-year-old Cynthia Collins at a Columbus Grove apartment complex. Collins died in a fire that Richey was accused of setting which ultimately put him on death row. But while his conviction has been overturned he sits on death row, waiting the ruling. Richey's attorney, Ken Parsigian of Boston, said it is highly unusual for the court to not rule on a pending case during 3 meetings referred to as conferences. Parsigian doesn't know why the court has not ruled and can only offer speculation. He said the most likely scenario is a justice or 2 wants to file a dissent and needs some time to write a it. In the meantime, Parsigian, Richey and everyone else must wait. The next orders are issued Monday and Parsigian is hoping he has an answer today, he said. The chance the high court will take the case, however, is remote. The court looks for cases of great public interest dealing with questions of law. The 6th Circuit had tossed Richey's case saying Richey's trial attorneys did not do an adequate job representing him and that under Ohio law at the time, prosecutors needed to prove Richey intended to kill the young girl to convict him of capital murder. Prosecutors said Richey's target was his ex-girlfriend. (source: Lima News) ********************** John Spirko doesn't deserve death penalty The case of John Spirko is a classic example of what is wrong with the death penalty. This is a man who is almost certainly not guilty of the murder with which he has been charged. There is no real proof of his guilt. That doesn't matter to the state of Ohio. He will be executed on Nov. 15, regardless of his innocence. If you agree that this is wrong, tell Gov. Bob Taft. He is the only person who can save Spirko's life. DR. CARL D. HYDE - Yellow Springs (source: Letter to the Editor, Columbus Dispatch) ******************* Hope for the innocent -- Ohio law that allows inmates post-conviction DNA testing should be continued The Dispatch has strongly supported the use of DNA evidence to convict criminals, sometimes in cases that went unsolved for years until the evidence was properly analyzed. The power of DNA testing to reveal the truth demands that it also be available to prove the innocence of wrongly convicted prisoners. Ohio gave such prisoners a chance to use DNA to prove their innocence but put time limits on it. Senate Bill 11, which allowed prisoners to ask the state for DNA testing under certain circumstances, took effect two years ago. It was to expire after a year but was extended another year after prisoners' advocates complained that the program had been difficult to use. It expired for real on Oct. 29. The question is, why put a time limit on justice? Just as DNA evidence from crime scenes, matched against samples from prisoners, has led to gratifying instances of criminals suddenly brought to justice after going unpunished for years, examples are mounting of people freed after being jailed for crimes they didn't commit. The Innocence Project, which supports DNA testing for prisoners claiming innocence, says the technique has exonerated more than 150 men nationwide. In Ohio, only one of 12 inmates who were granted tests has been exonerated because of Senate Bill 11. But the 16 years that Donte Booker of Cleveland spent in prison for a rape committed by somebody else are a powerful argument in favor of keeping the opportunity alive for other inmates. So is the experience of Clarence Elkins, who, before Senate Bill 11, had to find enough supporters to raise $20,000 to conduct DNA testing privately. And that was possible only after his attorney spent several years prodding prosecutors to make evidence available to be tested. Had a law requiring post-conviction DNA testing been in place when Elkins began his quest, his long struggle would not have been necessary. Now, Ohio Attorney General Jim Petro has stunned prosecutors, especially in Summit County, where Elkins was convicted of murder and rape in 1999, by declaring that the results of the DNA testing Elkins' supporters paid for prove him innocent. Elkins' case is made more dramatic because his attorney says Elkins' independent DNA testing has identified the true killer in Elkins' case. Elkins suspected Earl Mann, a neighbor of the victims, after Mann was later convicted of raping 3 girls. When Elkins encountered Mann in prison, he filched one of Mann's cigarette butts. It was tested, and Mann's DNA was determined to be a match to that found on the victims in Elkins' case, according to Elkin's attorney. Elkins' bid to prove his innocence hasn't been resolved, but his case shows how crucial DNA evidence can be. Petro has declared himself in favor of making the post-conviction DNA testing program permanent. Prosecutors' organizations oppose it, saying that two years should have been enough time. They also contend that police departments shouldn't have to save evidence "forever." But critical bits of DNA evidence needn't take up much space. In Richmond, Va., 3 men convicted in separate rape cases more than 15 years old were exonerated in recent years, after a tenacious attorney with the Innocence Project discovered that the crime-lab technician in his client's case had taped snippets of DNA evidence to paper case files. The find seemed miraculous and inexplicable, given that DNA testing hadn't been developed at the time the samples were saved. Whatever the technician's reason for saving them, their successful use so long after collection is more proof that such evidence should be saved at least as long as someone is imprisoned and that the opportunity to use it shouldn't be subject to a time limit. DNA science continues to advance, and techniques not yet discovered might be capable of exonerating someone years down the line. Moreover, any number of reasons could lie behind an inmate's failure to seek DNA testing in the past 2 years. Continuing the program would do little damage to law enforcement and prosecutors and could mean the world to someone wrongfully imprisoned. (source: Editorial, Columbus Dispatch) ALABAMA: Many murders, few executions Michael Landrum hired a hit man in 2003 to kill his own 3-year-old daughter and her grandmother. Ida Little was shot in the head and stomach; young Mikayla Little was shot in the face. The child's mother, who was not Landrum's wife, was serving in Iraq at the time. Prosecutors claimed Landrum wanted Mikayla dead to keep his wife from learning about his extramarital affair - and to get out of paying child support. The hit man, who pleaded guilty and testified against Landrum, said he got $500 for the killings in rural Marengo County. The same year, Julian and Florence McKinnon were found bludgeoned to death in their Elmore County home - the day after they received $10,000 for selling some land in Clio. Soon after, police found the McKinnons' longtime handyman, Charlie Washington, with a sizable sum of cash and crack cocaine. He was arrested and convicted of killing the couple. Both the Washington and Landrum cases more than qualified for a death sentence under Alabama law. Washington had multiple victims who were killed in the course of a robbery or burglary. Landrum's crime met even more of the criteria for capital murder: a murder-for-hire, with multiple victims, one of them younger than 14. A Marengo County jury and judge spared Landrum's life, sentencing him to life in prison with no chance for parole. An Elmore County jury and judge sentenced Washington to death. What separated the cases? Both defendants were black. Both claimed innocence. Neither had criminal histories. Each was convicted of a brutal crime resulting in two deaths. But there were key differences: Landrum was a football star, the first black quarterback ever to play at the University of Alabama. He had a good job, a respected family and the resources to hire his own lawyer. Washington was a poor high-school dropout who had to rely on court-appointed lawyers. In addition, there's this: Landrum's victims were black; Washington's were white. The contradictory results are hardly a fluke. The death penalty isn't applied fairly in Alabama. If it were, the horror of a particular crime and the guilt of a particular defendant would determine whether a case ended with a sentence of death. Instead, the outcomes often hinge on the status of the accused, the quality of the defense, the race of the victim, even the location of the crime. Deep defects: Those who revere life in all its precious forms, as this editorial board does, should be troubled by the deep defects in Alabama's system of dealing with cases that can end in death. Who gets the death penalty - and who doesn't - is a monumental issue across the country. It's especially important in Alabama, a state that sentences more people to death and has more death penalty crimes than most other states. 18 varieties of murder, from killing someone in a car, to killing a police officer, can buy you a 5-by-8 cell on death row. But not everyone who commits one of these crimes is condemned to die - not by a long shot. In 2003, Alabama logged close to 300 homicides, according to the Alabama Criminal Justice Information Center. That same year, more than 130 people were charged with capital murder. Of the cases that had been resolved by late summer, less than half ended with a capital murder conviction - and only 3 ended with death sentences, according to the Administrative Office of Courts. Those who get the ultimate punishment are not necessarily the worst of the worst. For every classic psychopath on Death Row, there are others who killed in a fit of rage, in the throes of mental illness, in a fog of drugs, or in a garden-variety holdup gone terribly awry. And for every person sentenced to die for a perfectly horrendous crime, there are dozens spared despite equally horrendous crimes. In cases from 2003, the 3 people condemned to die were Washington; Jimmy Lee Brooks, who killed a 12-year-old and buried the boy's father alive; and Christopher Shane Hyde, who killed three people at a funeral home robbery in Walker County. For each of these defendants, many more also could have gotten the death penalty that year: defendants including Shanta Phillips, who shot a 6-year-old during an apparent attempt to ambush police officers in Prichard; Rashad Woods, who shot a 30-year-old Ensley woman between the eyes for her necklace and VCR; and, of course, Landrum. There were almost as many scenarios as there were murders that year. But at least one common thread united the cases ending in a death sentence: The victims were white. This isn't a coincidence. An obvious role: We use cases from 2003 because it's the most recent year in which a sizable number of death penalty cases have been resolved. But year in and year out, race has played an obvious role in who gets the state's most severe punishment. It's not so much that blacks are disproportionately sent to death row, although they are. They make up 1/4 of the state's population and 1/2 of death row. But the more striking disparity involves the race of the victim. Blacks are much more likely than whites to be murder victims. In 2003, for instance, blacks made up 60 % of the homicide deaths. But death row doesn't reflect that lopsided statistic. Indeed, it's just the opposite. Of murder victims whose killers were sentenced to death over the past 30 years, more than 75 percent were white, according to the Equal Justice Initiative of Alabama, a Montgomery-based nonprofit group that represents death row inmates. Attorney General Troy King says race isn't a factor in how his office handles cases. "I believe we are seeking justice regardless of the color of the person's skin," he said. "I believe the death penalty is a strong signal that we value life." But if putting killers to death is a way of expressing how strongly society feels about the lives of victims, as King argues, the only way to interpret our state's record is that we treasure white lives much more than black lives. "Even if it's not intentional, it has that image," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. Even biases that are buried can emerge in capital cases because humans make the call about who gets life and who gets death. Local district attorneys decide whether to charge people with capital crimes, whether to let defendants plead (as most do) to lesser offenses and whether to seek the death penalty. Juries decide guilt and recommend a sentence. Judges make the ultimate call about punishment. At each step, there are openings for unfairness to creep in. Start with the prosecutors, who each have their own approach to death-penalty cases. Jefferson County District Attorney David Barber says his philosophy is to charge any crime that meets any of the legal criteria as capital murder - and to seek the death penalty. "That way we won't get in a situation of picking and choosing," he said. Yet one county away, Shelby County's Robby Owens does pick and choose. He says he doesn't go after the death penalty unless the murder was calculated, there's no question of guilt and he believes the defendant isn't worth saving. Owens believes his approach reserves Death Row for the worst of the worst. But that leaves Shelby County open to questions of fairness. Exhibit A: Indeed, death row inmates who complain of disparities like to point to one of Owens' cases as Exhibit A: the case of road-rage killer Shirley Henson. Technically, the crime qualified as a death-penalty offense because Henson was in her car when she shot Gena Newell Foster on Interstate 65. But Owens didn't seek the death penalty, saying the crime wasn't "thought out." Henson, a former legal secretary, hired one of the state's premier criminal lawyers to defend her. Instead of a death sentence, she was convicted of manslaughter and served four years in prison. The point isn't that she deserved to die. The point is that her fate could have been different if the highway confrontation had occurred a county away - particularly in Talladega County. Talladega is the 15th-largest county in Alabama, but has the 3rd-largest contingent of inmates on death row. Talladega had 13 condemned inmates as of October, behind only Jefferson and Montgomery. The reason is simple, Talladega County District Attorney Steve Giddens said: Those inmates committed crimes worthy of the ultimate punishment. "They get the death penalty for themselves," Giddens said. "They're not picked out of the phonebook or picked up off the streets. I'm getting tired of hearing it's not fairly applied." But how fair can it be when a crime in one county is deemed worthy of the state's worst punishment, while an almost identical crime in another county is not? The issue goes beyond the prosecutor. There's also the jury. "I call it the uncommon denominator," Barber said. "You've got the 8th wonder of the world sitting in the jury box." Giddens believes most jury decisions in death penalty cases are right. But there's no question jurors in some counties are more likely to recommend death sentences than jurors in other counties. Bryan Stevenson, who represents a number of death row inmates through the Equal Justice Initiative, said the death penalty is more likely to come out of counties with mixed racial populations and wider income disparities. Stevenson believes the death penalty is used in those counties as a way to enforce social order - a motivation that can lead to unfairness. Judges, too, play a role - more so in Alabama than in most other states. Here, judges can impose a death sentence even when a jury recommends against it. That is a frightening power, considering Alabama judges are elected and under pressure to be tough on crime. Liberal overrides: Only a handful of states grant judges this kind of power, and even then, it is restricted and rarely used. In Alabama, it is used liberally, accounting for about 20 5 of the people on death row. Worse, the override power adds another arbitrary element to capital cases in Alabama because some judges are more willing than others to use it. Some have never sidestepped a jury's wishes to sentence someone to death; others have done so on more than one occasion. Since 1982, 53 judges have handed down 83 death sentences against a jury's wishes; more than 1 in 5 overrides were the work of just three judges. One of the three, retired Montgomery Circuit Judge Randall Thomas, sent five people to Death Row using the override power. He says he struggled with the decisions, but ultimately ruled based on the people and cases before him. Thomas won't tell you he never made a mistake. But, he said, "I can look you in the eye and tell you I never made the wrong decision for the wrong reason." He believes judges need to have this kind of discretion. But Thomas acknowledges the flip side to discretion is sometimes disparity. "Everybody is equal in the eyes of the law," he said, "but there are no two people who are the same." But the difference between life and death should at least be grounded in real distinctions between crimes and criminals. Those distinctions are not always apparent in Alabama, as the Landrum and Washington cases demonstrate. We live in a state where the outcome of a death-penalty trial may hinge on "who you are, how much money you have, which district you're in, which judge, which jury, maybe what day it is," said Richard Jaffe, a defense lawyer who has handled a number of capital cases. In other words, the luck of the draw. That may be an acceptable way to determine who wins a poker game. It's no way to determine who lives and who dies. Michael Landrum--Received life sentence Charlie Washington--Sentenced to death (source: Opinion, Editorial Board, The Birmingham News) ********************* Huntsville man charged in Halloween slaying of 80-year-old man A Huntsville man has been arrested and charged with capital murder in the Halloween night slaying of an 80-year-old Athens man. Andrew Reid Lackey, 22, was arrested Saturday after his discharge from Huntsville Hospital where he was treated for a gunshot wound in the chest. Lackey is charged in the shooting and stabbing death of Charlie Newman, according to police. If convicted, he could be sentenced to death or life in prison without parole. Athens Police Capt. Marty Bruce said robbery appeared to be the motive for the slaying. The victim made a living items on eBay, the Internet auction site. Bruce said police recovered two handguns, a bloody knife and property belonging to Newman from Lackey's rented 2006 white Nissan. Lackey has known Newman's son and grandson since he started school in the fourth grade with the grandson, Bruce said. Newman called 911 at 7:35 p.m. on Halloween. On the tape, Newman referred to someone as "son" and said something like "You don't have to do this." Officers arrived 5 minutes after the call and found Newman dead. Police later received a call about Lackey's arrival at the hospital. (source: Associated Press) USA: 'Save me, Joe Louis!'----An oft-told tale of a condemned black man's final words is a myth. The real story illustrates America's painful racial divide. Sometime in the 1930s, a black inmate on death row in a Southern state is asphyxiated in its gas chamber. As he breathes in the fatal fumes - and as observers watch from behind a thick pane of glass - he cries out: "Save me, Joe Louis! Save me, Joe Louis!" The story has been told ever since, usually to illustrate Louis' near-messianic status in a black America that had little else going for it in the years before World War II. The Rev. Martin Luther King Jr. was among those telling it. "Not God, not government, not charitably minded white men, but a Negro who was the world's most expert fighter, in this last extremity, was the last hope," he wrote in 1963. Too bad it never happened. But the real story about that black inmate, 19-year-old Allen Foster, and how he died on Jan. 24, 1936, is a parable of a different sort. Instead of exalting a prizefighter, it illustrates one of the countless forgotten but horrific racial wounds that lie just beneath this nation's veneer of civility and ooze and bleed from even the most superficial incision into our past. Such stories are rarely recounted. To whites, they are largely alien, while to blacks, they are almost too commonplace for comment. But they help explain and illustrate the American racial divide as surely as Hurricane Katrina. They help explain the otherwise inexplicable, like those black crowds cheering O.J. Simpson a decade ago. Foster, born and raised in Birmingham, Ala., was an all-too-familiar figure in the early 20th century South: black, impoverished, fatherless, uneducated, in trouble with the law. He was also mentally impaired. In 1929, at the age of 13, he was convicted of robbery and sentenced to the state Negro Industrial School until the age of 21. His crime: stealing eggs from a boxcar. Foster was with the Civilian Conservation Corps in Ft. Bragg, N.C., when, on Sept. 28, 1935, he left the camp, walked down a country road and held up the wife of a local white farmer. The woman testified that he'd demanded money, then knocked her down with a bottle, then raped her at knifepoint. Within 6 weeks, he'd been tried, convicted and sentenced to death. Foster later said he was clubbed into confessing. It's impossible now to know the truth, though it's surely a fair bet that his trial was perfunctory, his defense limited, his story given little weight against that of a white woman charging a black man with rape. Whether he deserved to die, though, mattered less than how he did. His execution was the first in North Carolina's new gas chamber. Gassing had just replaced electrocution, ostensibly because it was "more humane." It had worked just fine when tested a few weeks earlier on a couple of dogs. Foster's distraught mother did what she could to stave off the execution, sending off a series of pathetic, handwritten appeals on behalf of her only child to North Carolina's governor, J.C.B. Ehringhaus. "I hate to worrie [sic] you so much but I just can't help it Gov.," she pleaded. "If it is just some way he could get life sentence and not be killed. I want to him to live that all I got to live for in this world. Please save him from that Gas please. I taught him all I could and all I knowed about the white people law." In another note, she pointed to her son's mental condition. "How offal it is to put a half crazy to Death," was how she put it. "Earnest consideration" was being given to her case, she was assured. But the execution was set for Jan. 24, 1936. And it proceeded as scheduled - though hardly as planned. As a couple dozen newspapermen and witnesses watched at the state prison in Raleigh, Foster entered the death chamber. He wore only a pair of cotton boxing trunks and shivered in the freezing room. He was bound and chained to a chair, with a stethoscope taped to his chest. A dish of hydrochloric acid was placed underneath his seat. After everyone withdrew behind the glass partition, Foster said something, then clenched his fist and threw an uppercut. He was apparently recalling a boyhood bout with Louis, though it was surely imaginary: While born in Alabama, Louis had never been to Birmingham and had only begun to box after leaving the state. (But the Daily Worker later described things differently, and a myth was thereby born.) Foster then said goodbye to his mother and shouted his innocence. THE EXECUTIONER pulled a string, and potassium cyanide pellets fell into the acid. Whitish-gray smoke - hydrocyanic acid - quickly enveloped Foster. He opened his mouth and inhaled what one death row veteran, W.T. Bost of the Raleigh Daily News, called "concentrated hell." When Foster exhaled, it looked as if he were smoking a cigarette. Then he inhaled again. "Merciful minded watchers thought he was gone," wrote Bost; instead, "he hadn't started." 2 minutes and a dozen whiffs later, he was still talking, still saying something. More time passed. Foster's head dropped, his eyes bulged, his body convulsed, and still, he attempted to talk. In all, 10 more minutes came and went, 10 minutes of breaths deep and shallow, of writhing and retching and lurching violently, his eyes rolling grotesquely all the while. For a time, the doctors on hand debated whether to go back into the chamber and put more pellets in the dish. "And still," Bost wrote, "that stout heart beat away." Surely, he speculated, there was a use to which courage so extraordinary could be put. Only after 12 minutes was the inmate finally pronounced dead. Though he'd defiled Southern womanhood, the spectacle left pretty much everyone believing that Allen Foster had gotten even more than he deserved. "Gas Execution Called Savage," the Charlotte Observer declared the next day. Bost, who had witnessed 5 lynchings and as many hangings along with 153 executions in his day, called it "the most barbarous thing I have ever seen." "Between the 2, give me electricity," said the warden, who'd seen all 162 executions in North Carolina since 1909. "Never again for me," said the coroner. "It's slow torture - that's what it is." "In death, Allen Foster is likely to be talked about far more in North Carolina than if he were another Joe Louis," the Observer predicted. Of course, that wasn't so. In fact, whatever outrage there was quickly dissipated - for the next 62 years, North Carolina continued gassings - and Foster was completely forgotten. And would remain, were it not for the "save me, Joe Louis" legend, which developed partly because it was so plausible. After all, to whom else was an African American of that era to pray? "I'm in death row, and I got only six more weeks to go," another black man in another Southern penitentiary had written Louis in the spring of 1935. "Your picture hanging on the wall will make me feel better as I wait for the electric chair." (source: By David Margolick, DAVID MARGOLICK, a contributing editor at Vanity Fair, is the author of "Beyond Glory: Joe Louis vs. Max Schmeling, and a World on the Brink" (Knopf, 2005). Los Angeles Times) NORTH CAROLINA: It's unfair to make one person serve more time in prison than another if both committed the same crime. That idea drove a recent change in state law that encourages the parole commission to release more inmates who were locked up before sentencing guidelines changed in 1994. A prisoner serving 20 years for an offense that now requires only a 10-year penalty might deserve strong consideration for parole. It's a simple matter of fairness. Too bad legislators didn't apply the same principle to inmates on death row. Since a 2001 change in the law, the number of death sentences imposed by North Carolina courts has fallen dramatically. Under the new law, defendants can plead guilty to a charge of first-degree murder and receive a sentence of life without parole rather than go to trial and risk the death penalty. Many prosecutors agree to that outcome. It saves overworked district attorneys' staffs the time and expense of a trial, spares the state a lengthy appeals process and often relieves victims' families of the ordeal they endure when the facts of the crime are rehashed as the killer's execution approaches. In addition, with public attitudes about capital punishment beginning to shift, many jurors are more comfortable voting for a life sentence rather than death as long as they know there's no possibility of parole. The numbers tell the story: In 1999, 24 people were sent to North Carolina's death row; in 2000, 17; in 2001, 15. Then, after the new law went into effect, 7 in 2002; six in 2003, four in 2004; and 6 so far this year. Altogether, 156 of the 177 men and women on death row have been there since 2001 or earlier. Whether most North Carolinians still approve of the death penalty or not, North Carolina juries are slowly eliminating its use. That invites an obvious conclusion: Death row is largely populated by inmates who, if tried again by today's legal standards, would not be sentenced to death. Yet many of them will be executed. The exceptions may win new trials for other legal reasons, be granted a commutation of sentence or perhaps die of natural causes. These people on death row were left out when state legislators this year tried to insert a measure of fairness into the criminal-justice system. Lawmakers said to thousands of prisoners, "You shouldn't be held longer for your crime than you would be if you had committed the same offense after 1994." But to the inmates facing the most severe punishment, they said nothing. Maybe it's not politically smart to give murderers a break. The question, however, isn't whether murderers should go free. Of course they shouldn't. But, if juries today are more inclined to sentence killers to life in prison without parole, it's only fair for legislators to consider the same leniency for those already on death row. (source: Editorial, The News & Record) VIRGINIA: DNA matches win few convictions in Va. It's a staple of TV crime dramas: DNA from a crime scene is matched to a suspect, and a prompt conviction follows. Not so in real life. Virginia's crime lab has found there were convictions in less than one-quarter of more than 3,000 cases in which analysts matched crime-scene DNA to a genetic profile in the state's databases. The analysis is the 1st major study of what happens in criminal cases after a DNA match is found. Forensic analysts say the findings raise questions about the effectiveness of the nation's network of DNA databases, the Combined DNA Index System (CODIS), as the White House proposes to spend $1 billion to greatly expand testing. "We love to talk about our CSI-style matches, but nobody has wanted to look too deeply into what they really amount to," says Max Houck, head of West Virginia University's forensic science program. "We're pouring millions into (the DNA) system, and we don't have any idea whether it's cost-effective in the area that really counts," getting convictions. CODIS is a system of state and federal computers maintained by the FBI and designed to solve crime by comparing the genetic profiles of known offenders to DNA found in blood, semen and other biological material found at crime scenes. The FBI says the network has DNA profiles from more than 2.7 million offenders and has scored nearly 28,000 matches nationwide since 1992. Virginia, which has collected DNA from convicted criminals since 1989, has one of the nation's largest databases, with about 246,000 DNA samples on file. Only Florida and California have larger databases. Virginia, New York and Florida are the only states that have found at least 3,000 matches between crime-scene DNA and profiles in the states' databases. In a report completed last month, Virginia's Department of Forensic Science found that since 1989, there had been 2,744 cases in which DNA from crime scenes was matched to a specific offender in Virginia's database. In 278 other cases, a match was found to an offender in another state, or to evidence from another unsolved crime. It's unclear how many of the out-of-state matches found by Virginia analysts led to convictions. But among the in-state matches, 597 - less than 22% - led to guilty pleas or guilty verdicts after a trial, the report says. In nearly 424 other in-state matches, prosecutors declined to press charges because victims could not be found or were reluctant to testify, or the evidence that was tested turned out to be irrelevant. In 1,760 other matches, investigations were still pending or could not be analyzed because local authorities had lost track of the cases or did not respond to state requests for information. Virginia officials also found a case in which the state lab told local investigators that DNA from a crime scene matched someone in the state database, but investigators apparently did not pursue the suspect. No other details on the case were given in the state's report. (source: USA Today)
