Nov. 8 NEW YORK: Bar Group Opposes Federal Tort Reform Bill The New York State Bar Association, expressing grave concern over what it views as congressional encroachments on state law and criminal procedure, has taken aim on two pending measures - a proposed "tort" reform bill that has already passed the House of Representatives and a controversial measure that would largely eliminate federal habeas review of many state court convictions. At its regular fall meeting on Saturday, the organization's House of Delegates unanimously condemned both the Lawsuit Abuse Reduction Act of 2005 and the Streamlined Procedures Act. The habeas corpus measure is an outgrowth of the Federal Antiterrorism and Effective Death Penalty Act, which was passed in 1996 to ensure prompt review of state court judgments by the federal courts. Under the proposed Streamlined Procedures Act, the federal courts would largely lose jurisdiction to consider many habeas petitions. It was drafted to prevent lengthy delays in carrying out death sentences, but would apply to non-capital cases as well. The bill is opposed by the American Bar Association, the Judicial Conference of the United States, the NAACP Legal Defense Fund, the National Conference of Chief Justices, current and former federal and state prosecutors (including former Eastern District U.S. Attorney Zachary W. Carter), 2 former directors of the FBI (William H. Sessions and William H. Webster) and two former judges of the New York Court of Appeals (Stewart F. Hancock Jr. of Syracuse and Howard A. Levine of Albany). State Bar President A. Vincent Buzard of Harris Beach in Rochester said yesterday he is increasingly concerned over Congress' tendency to enact preemptive laws and to intrude in areas that had been the province of the states. He pointed to a recent federal highway bill that, along with appropriating money for road projects, eliminated New York's law imposing vicarious liability on auto leasing companies. Although the state bar supported the elimination of the vicarious liability provision as a matter of state statute, Mr. Buzard is uneasy with the federal government's roundabout maneuver, which caught many in New York off-guard. "As long as the Congress is going to meddle in state's rights we need to beef up our efforts in dealing with Congress as a state bar," Mr. Buzard said. The group is developing a "federal key contacts program," he said, through which it can contact federal lawmakers and work with the American Bar Association to keep up with events. "We need more notice and we need to make the public more aware," he added. Mr. Buzard said the federal tort reform measure, which unlike the habeas corpus initiative seems to have momentum, amounts to an extraordinary effort to impose the will of Congress, though the federal courts, on the state courts. At Saturday's meeting, Jean T. Walsh, vice-chair of the Criminal Justice Section, presented a report on the habeas corpus measure. It was sparked by the New York County Lawyers' Association, which in a recent letter urged the state bar to stake a position against the measure. (source: New York Law Journal) ALABAMA: When death is on the line Troy King----Defends Alabama's capital punishment system Bryan Stevenson----Says the system is unreliable When Opelika's Mike Williams was appointed to defend James Wyman Smith on a capital murder charge, Williams had little experience in criminal law, much less in defending someone whose life was on the line. A general practice lawyer who had graduated from night law school a few years before, Williams admits he hadn't fully read the death penalty statute before Smith's 1st trial. "No regular, single lawyer can keep up with everything," Williams said. "The law on capital cases is so voluminous and complicated, it's like a specialty." Smith was sentenced to death for abducting and strangling a store clerk in Lee County. The Alabama Supreme Court overturned Smith's conviction in 1991 because of improper conduct by prosecutors. A more experienced Williams defended Smith a 2nd time, but the results were the same. Smith died on death row of natural causes. Williams got on-the-job training from the case, but little else. Due to limits on state pay to indigent defense lawyers, Williams figures he earned $4.98 an hour for the Smith case, and then only after the trials were completed. Williams' experience is hardly unusual. One of the most dangerous flaws in Alabama's capital punishment system is the lack of a statewide public defender system. Instead, the state offers a hodgepodge, bare-bones way of providing lawyers to defend poor suspects. These court-appointed lawyers often have little experience in capital cases, and limits on pay discourage highly qualified lawyers from taking cases. Worse, there are no guarantees after the 1st round of appeals that an inmate even will have legal help. "I doubt that anybody can defend the reliability of the system," said lawyer Bryan Stevenson of the Montgomery-based Equal Justice Initiative of Alabama, a nonprofit organization that represents death row inmates. Yet this system puts people to death. This newspaper's editorial board embraces a culture of life, but our system of capital punishment has created a culture of death. Attorney General Troy King maintains Alabama's capital punishment system is as good as any in the world. Yet, considering its built-in flaws, King's assurances cannot be sustained with even a modest degree of confidence. Clearly, the best hope for somebody charged with a death penalty offense is a vigorous, thorough defense at the initial trial in circuit court. But the system in Alabama works hard against that obvious and basic premise. Our inadequate system increases the chances of an innocent person being convicted and sentenced to death - a possibility a civilized society should never accept - and the chances of having to retry cases overturned by appeals courts. That's a practical, bottom-line reason for citizens to insist on highly competent defense counsel for death penalty cases: It saves taxpayers millions of dollars on retrials and laborious appeals. But the problem, more fundamentally, is one of justice. Alabama needs to provide proper legal representation so no one is wrongly convicted and put to death. Most people charged with capital crimes must depend on court-appointed attorneys. For the few who can pay for a capital defense, attorney fees can be $100,000 or more, with another $50,000 or more for experts and investigators. Because there is no bond in capital cases, defendants often lose their jobs and cannot afford to pay private attorneys. It is imperative the lawyers who represent these suspects have the ability and experience to do a good job. A death penalty trial actually is two separate trials: One to determine guilt and the other to decide a sentence, either death or life without parole. Attorneys appointed to such cases must prepare for both phases, which requires hours of investigation into the facts of the case, researching the background of the defendant and finding appropriate experts. The Equal Justice Initiative's Stevenson said preparing competently for each part of a death penalty case takes at least 500 hours, but in some cases attorneys have spent fewer than 12 hours getting ready for trial. Stevenson said in one case, one of the 2 attorneys appointed to defend James Harvey Callahan didn't even meet the defendant before his Calhoun County trial. After examining witnesses and sitting at the counsel table during the guilt phase of the trial, that lawyer never returned for the penalty phase. The sentence was thrown out by a federal judge, but reinstated last month by the 11th U.S. Circuit Court of Appeals. Callahan could face execution next year. Crucial phase: With a defendant's life on the line, the penalty phase is crucial. The defense attorney must be prepared to show reasons why his client should not be put to death. This often requires mental health evaluations, learning extensive family and medical history and finding friends to speak for the defendant. Yet, there are cases where attorneys have done little to plead for their clients' lives; in some cases, they haven't even called witnesses or presented evidence during the penalty phase of the trial. Some may not know better. In Alabama, a defense counsel for a death penalty case is only required to have five years' experience in criminal law, but the experience can be in defending petty crimes such as shoplifting or writing bad checks. According to court filings by Stevenson, a circuit judge refused to allow a lawyer to remove himself from a capital case in Colbert County, even though the lawyer knew he didn't have the relevant criminal law experience. The defendant, John Forrest Parker, was convicted in 1989 and sentenced to die. His appeal is pending in federal court. Alabama's weak standards for appointing capital defense attorneys fall far below the American Bar Association's guidelines. The guidelines call for "substantial knowledge and understanding of the relevant state, federal and international law, both procedural and substantive, governing capital cases," including familiarity with "common areas of forensic investigations, including fingerprints, ballistics, forensic pathology and DNA evidence," and even "skill in the investigation, preparation and presentation of evidence bearing upon mental status." The guidelines also call for lawyers appointed to death penalty cases to complete a "comprehensive training program ... in the defense of capital cases," which Alabama doesn't require. Conversely, a district attorney's office, which prosecutes individuals charged with capital crimes, may have highly experienced attorneys who deal with homicide trials regularly. The DA's office also often has in-house investigators, easy access to state forensics experts, and the cooperation of police departments, their homicide detectives and evidence specialists. Those kinds of resources aren't available to court-appointed attorneys. That's because Alabama does capital defense on the cheap. The great majority of today's Death Row inmates were convicted before 2000. Yet until 1999, court-appointed lawyers were paid $20 an hour for out-of-court work and $40 an hour for in-court work; until 2000, they got $30 an hour out of court and $50 an hour in court. Also until 2000, the court-appointed lawyers were capped at $1,000 for out-of-court fees, meaning they were limited in the pretrial hours they could work on a case, unless they worked for free. Today, court-appointed attorneys receive $60 an hour for in-court work and $40 per hour for out-of-court work, which is still low. Until this year, court-appointed defense lawyers could at least bill (on average, $29 an hour) for overhead costs - that is, for expenses such as rent, insurance and office staff necessary to run a competent law firm. Attorney General King banned that practice in February. In September, a judge ruled the payments must be reinstated, but the issue of overhead expenses is likely to remain part of the indigent defense debate. In a system like Alabama's that does not pay for or guarantee a high-quality, aggressive defense at trial for each death penalty case, it's even more important the trial get a close examination on appeal. But the death penalty appeals process is stacked heavily against somebody fighting for his life. Serious errors: The 1st appeals are automatic, called "direct appeals," and generally focus only on serious errors made by the trial judge. Again, court-appointed lawyers usually handle these appeals - but there is a $2,000 limit on fees the lawyer can collect for each automatic appeal. Even at the far-below-market rate of $60 an hour, the appointed lawyer is getting paid for just 33 hours of work, yet he is expected to investigate the case from scratch, review thousands of pages of trial transcripts and evidence. How else can he competently represent his client? But it gets worse. The 2nd round of appeal is known as the state "collateral" appeal, and every state provides for this last shot at the state courts. This appeal is a chance for the condemned to raise issues such as the competence of his lawyers or to present evidence that shows the death sentence was wrongly given or proves the defendant's innocence. Unlike all surrounding states, the condemned person in Alabama isn't assured legal help to prepare for this crucial appeal, which is very technical and must include specific information in a certain form, or it will be denied outright, regardless of the merits. Adding to the pressure, these petitions must be filed within 12 months after the state Supreme Court has affirmed a death sentence. Unless certain deadlines are met, the inmate also forfeits access to some federal appeals. Yet today, more than a dozen Death Row inmates do not have lawyers to help them file these appeals. This is unacceptable. There is not an endless pool of money to pay for defending the poor. Alabama, however, has the resources - and the responsibility - to do much more than it does. Indeed, it must ensure a decent legal defense if it is going to embrace and encourage death for those who commit the most serious crimes against society. Anything less unconscionably devalues life **************** Poor system can mean poor results An unfortunate byproduct of a hodgepodge system of courts appointing lawyers for defendants charged with capital crimes, especially without strong standards for doing so, is that some inmates get less-than-excellent results. Some examples: George Daniel was tried, convicted and sentenced to death in Russell County for shooting a police officer. His trial lawyers asked Daniel's mother for his last paycheck, supposedly for evidence, but cashed it and kept the money for themselves. Daniel had become severely mentally ill after a car wreck that caused brain damage. His bizarre behavior in the wreck's aftermath led to the confrontation with the officer. But an "expert" from the state had declared Daniel mentally fit, and his trial lawyers never questioned the expert's qualifications. The "expert," it turns out, was a high school dropout with no degree, training or credentials. A U.S. district court judge granted Daniel relief, and he was removed from death row and sent to a mental hospital. In 1988, a Talladega County jury convicted Judy Haney of capital murder and sentenced her to death for hiring someone to kill her allegedly abusive husband in 1984. At her original trial, Haney's court-appointed lawyer, Gould Blair, "was so drunk during the trial ... that he was held in contempt and sent to jail," according to a 1995 report by the Death Penalty Information Center, an anti-capital punishment group. Blair maintained Haney got good representation. "I would affirm to anybody the fact that I had a bad day in court does not in these circumstances mean this woman was other than more than adequately represented," he said. On appeal, Haney argued Blair had not adequately represented her. Blair "had a severe drinking problem at the time of the trial" and "appeared intoxicated in court during the trial on other occasions," the filing said. Talladega Circuit Court Judge Jerry Fielding reduced Haney's sentence to life without parole in 1997. In 1998, David Hocker lured his boss to a rural area near Dothan, stabbed him to death and stole his truck. The mentally ill man was convicted in a trial that lasted one day. Hocker's defense lawyer, Michael Crespi, called no witnesses on his behalf, saying his client didn't want his family embarrassed by his troubled background. Jurors never heard about the defendant's mental illness, his abusive upbringing or his father's mental illness and suicide. Hocker was sentenced to death. Despite clear signs of mental illness - he mutilated himself on Death Row, including removing his testicles - Hocker was allowed to abandon his appeals before courts could determine whether he was competent and had received an adequate defense. Hocker was executed in 2004. Sources: Equal Justice Initiative, Death Penalty Information Center, news archives. (source for both: Editorial Board, Birmingham News) ILLINOIS: Accused Peoria serial killer could go to trial by next fall An accused serial killer who prosecutors say has confessed to killing 8 Peoria women and burning some of their bodies to ash and bone could stand trial by the second half of next year, his attorney said Monday. Possible trial dates will be discussed when 39-year-old Larry Bright next appears in court Jan. 27, Peoria County Circuit Judge James Shadid told the attorneys during a brief court hearing. James Elmore, one of Bright's court-appointed lawyers, said outside court that the potential death penalty case could go to trial by late summer or early fall. Peoria County State's Attorney Kevin Lyons did not immediately return a call for comment. Elmore told the judge that Bright's three-attorney legal team would file a change of venue motion within a month to move the trial out of Peoria County because of extensive media coverage of the case. Prosecutors did not say whether they would contest the move. The judge on Monday also approved a psychiatric evaluation for Bright. Bright will be examined by Springfield forensic psychologist Terry Killian, who earlier found the former concrete worker fit to stand trial. Prosecutors say Bright has confessed in the deaths of 8 Peoria women since mid-2003, burning half of the bodies for up to 2 days in backyard pits and dumping the others along little-travelled country roads. Bright is charged with 1st-degree murder in 2 of the deaths and faces the death penalty if convicted. Authorities are awaiting results of DNA tests that could bring new charges against Bright, who was arrested in January by a task force investigating the deaths and disappearances of black women in the Peoria area. After his arrest, police say Bright led them to hundreds of charred skull and bone fragments that he dumped in neighboring Peoria and Tazewell counties, including on his grandmother's property. Authorities say the remains - none bigger than a golf ball - are from at least 2 different victims, but aren't sure DNA tests will provide identities because some fragments were so badly burned. Elmore said tests have been completed at an Illinois state police lab, but the findings have not been released. Bright, who smiled at his mother as he walked into court, tried to plead guilty during his first two court appearances, but judges rejected it to protect his rights. His attorneys have entered a not guilty plea and say Bright's family has convinced him to fight for his life despite his remorse over the killings. Prosecutors have declined to discuss a motive but say Bright, who is white, developed a fascination with sex and pornography involving black women. The victims were all black and led what authorities called "questionable lifestyles," including prostitution and drug use. Bright is being held without bond in the Tazewell County Jail. (source: Associated Press) TENNESSEE: Thompson's attorney asks for another delay A lawyer for a death row inmate who killed a Shelbyville woman has asked the Tennessee Supreme Court to postpone his execution until after federal court considerations are completed. Michael J. Passiono of Nashville filed the request on Monday for Gregory Thompson who was convicted 20 years ago for the stabbing death of Brenda Blanton Lane. Thompson also abducted Lane to get her car so he and his girlfriend could drive to Georgia. Passino and other attorneys have argued that Thompson should not be executed because of his mental condition. That and other procedural arguments have increased since the state Supreme Court set a second execution date for Thompson. The U.S. Sixth Circuit Court of Appeals hasn't finished considering Thompson's case, Passino wrote for Thompson in papers filed Monday. "By letter of Oct. 26, [that] court directed the state to respond to Mr. Thompson's rehearing petition," the lawyer wrote. "Thus, the federal court is still reviewing the case and future federal proceedings are reasonably anticipated." When the state Supreme Court set Feb. 7 as Thompson's execution date, there was still a process in federal court to be completed, Passino said. And 3 weeks ago, when the state Supreme Court denied several requests for Thompson -- to stop the execution because of a change in his mental condition and hear an appeal to commute his sentence -- the state court also set Nov. 18 as a deadline for defense arguments. That deadline of Friday next week should be postponed because federal proceedings are incomplete, Passino said. Final defense arguments due on Nov. 18 should address Thompson's "Ford claim," the Supreme Court said. Stemming from case law, the claims seek to establish that the condemned inmate is not competent for execution because he doesn't understand or comprehend 2 facts of life and death in his case; that the state intends to take his life for his murder of another person. Thompson's victim, a former Shelbyville Times-Gazette reporter, was abducted from what was the Wal-Mart parking lot at the Big Springs Shopping Center. Thompson had been found competent for execution, but since then his attorneys have presented papers saying that Thompson's condition has changed and that he's no longer competent to be executed. In recent months, several lawyers who've spoken about the state's standard of competency for condemned prisoners have acknowledged that it is a low standard. (source: Shelbyville Times-Gazette) CALIFORNIA: Nobel Nominee and Death Row Prisoner Stanley Tookie Williams Files Petition for Clemency With California Governor Arnold Schwarzenegger Stanley Tookie Williams' petition for clemency will be filed with California Governor Arnold Schwarzenegger on Tuesday, November 8, 2005. Stanley Williams is scheduled to be executed by the State of California on December 13, 2005. The clemency petition asks Governor Schwarzenegger to exercise his discretionary power to spare Stanley Williams' life. The basis of the petition is Stanley Williams' personal redemption, the hope given to others by his message of education, self-discipline, purpose and peace, and the positive impact his message will continue to have if the Governor spares his life by granting clemency. Peter Fleming Jr., of Curtis, Mallet-Prevost, Colt & Mosle, LLP, clemency co-counsel for Stanley Williams, states: "We file this petition with faith it will receive conscientious review by Governor Schwarzenegger. We file it with belief, for all the reasons set forth in the petition, that the Governor will exercise clemency and thereby send a message of hope to those for whom Stanley Williams is a symbol of hope." Background on Stanley Williams Stanley Williams was one of the founders of the Crips street gang. He was convicted of four murders in 1981, and has been on death row at San Quentin for the past 24 years. Stanley Williams has always maintained his innocence of these crimes. While on death row, Stanley Williams has undergone a personal redemption. He has openly apologized for his role in forming the Crips and his actions as a gang member, and become a prominent anti-gang spokesman. He has written a series of anti-gang books for children, promoted gang truces, and given numerous talks to at-risk youth about the power of education, self-discipline and peace. He has received thousands of emails from individuals influenced by this message. As a result of his work while on death row, Stanley has been nominated for the Nobel Peace Prize and for the Nobel Prize in Literature. This year, he received the President's Call to Service Award. In 2004, the Ninth Circuit, in an extraordinary opinion, denied Stanley Williams legal relief but volunteered, in respect to clemency, that Stanley Williams' "good works and accomplishments since incarceration may make him a worthy candidate for the exercise of gubernatorial discretion." Clemency The last California Governor to grant clemency was Ronald Reagan in 1967, 38 years ago. Clemency is not a reversal of the judgment of the courts, but an exercise of executive discretion. The Founding Fathers of this Nation vested the clemency power in the executive, and the Governor's power to grant clemency is found in the California Constitution. Website: http://www.cm-p.com/clemency.htm Website: http://www.tookie.com/ (source: PRNewswire)
