Nov. 23 OKLAHOMA: Oklahoma Death Row Inmate Dies Of Cancer Prison officials say a death row inmate has died of cancer. 44-year-old Cyril Wayne Ellis was sentenced to die for the 1986 shooting rampage that killed three and injured 4. Oklahoma County prosecutors expected to re-try Ellis this year. Assistant District Attorney Cassandra Williams says the Tenth US Circuit Court of Appeals granted Ellis a new trial because a doctor who was set to testify about his mental condition died shortly before the trial nearly 20 years ago. Williams says there's no doubt Ellis was the one who committed the shootings, but the question of sanity would've been debated. Ellis committed himself for mental treatment at Saint Anthony Hospital the day before the shooting. He checked himself out of the hospital and then shot 7 people at 3 Oklahoma City locations on January 30th, 1986. Most of Ellis' victims were co-workers. He had been fighting with his employer, Consolidated Freightways, about an on-the-job injury and workers' compensation payment. (source: Associated Press) ********************* Attorneys threaten to refuse death row cases Oklahoma attorneys who represent death row inmates are warning they will refuse to take some of those cases unless an appeals court comes to their rescue. At issue is whether the attorneys will be compensated for representing inmates in clemency hearings and 11th-hour court proceedings, such as stays of execution, after regular appeals are exhausted. The state of Oklahoma does not pay attorneys to represent indigent inmates awaiting execution for those types of cases. U.S. District Judge Terence Kern in Tulsa ruled last year that neither would the federal government pay. Attorneys who specialize in death row cases say the ruling will leave inmates, many with little education, "left to beg" by themselves for why they should serve life prison terms instead of being executed. State prosecutors would then have the process stacked in their favor, the attorneys contend in written arguments at the Denver-based 10th U.S. Circuit Court of Appeals. If the appellate judges do not overturn the lower-court ruling, they should order the state of Oklahoma to stop executing inmates "until such time as the state adequately funds clemency representation," wrote one of the attorneys, Steven Presson of Norman. He and his law partner, Robert Jackson, warned of consequences if the judges don't order a change. "The private attorneys currently on the special death penalty panel will no longer accept appointments for capital habeas corpus cases anywhere in Oklahoma because of the certain substantial financial harm to their practices, harm which could force small private (law) firms into bankruptcy," Presson wrote. In habeas corpus cases, inmates allege violations of federal constitutional rights to a fair trial after normal appeals have been exhausted. There are 34 attorneys in the state approved by the chief federal judges in Oklahoma City, Tulsa and Muskogee to be on the panel, said Susan Otto, head public defender for the federal court in Oklahoma City. She oversees the statewide panel. There were 54 habeas corpus cases of Oklahoma death-row inmates in the most recent fiscal year, she said. In a "friend of the court" written argument, Otto sided with Presson, calling the appeal "a question of exceptional importance." She said the public defenders as well as the private attorneys "will be prohibited from clemency proceedings" if the appeals court allows Kern's ruling to stand. The appeals court is taking the rare step of having all 12 full-time judges consider the matter. Normally the court functions in three-judge panels. "The Oklahoma Pardon and Parole Board is on record as stating that it is extremely important for both sides -- the state and the condemned inmate -- to be represented by counsel at the clemency hearings," Jackson and Presson told the appellate judges. Prosecutors are represented by "a well-funded attorney general's office which routinely brings victims' families to the hearings to plead for the execution of the inmate," Presson wrote. Kern's decision is contrary to federal law, which mandates federal funding, and contrary to past practices of other federal judges in Oklahoma, according to Presson and Otto. They cite a law that says attorneys appointed to represent an inmate sentenced to death "shall represent the defendant throughout every subsequent stage of available judicial proceedings ... together with applications for stays of execution ... and proceeding for executive or other clemency." Kern denied Presson's and Jackson's request to confirm their reappointment to represent Scott Allen Hain for his clemency hearing. They sought $12,515 for that work. Hain, then 17, and co-defendant Robert Lambert were convicted of the October 1987 burning deaths of Tulsans Michael Houghton, 27, and Laura Lee Sanders, 22. The victims were abducted from behind a Tulsa bar and robbed, then placed in the trunk of a car and driven to Creek County, where the car was ignited. In denying payment to Jackson and Presson, Kern concluded, "Congress never intended for the federal government to pay attorneys for a state court defendant to pursue remedies sought in state proceedings. The state ought to shoulder the burden." Although the appellate judges in 2003 stayed Hain's execution to consider whether attorneys will be paid for clemency work, the U.S. Supreme Court allowed Hain to be executed before the judges in Denver took up the issue. This year, the Supreme Court barred the execution of people who were under 18 when they committed the crime. Otto said federal judges in Oklahoma have authorized taxpayer funding for attorneys to represent 47 death row inmates in clemency hearings the past 10 years. Speaking for the other side, Assistant U.S. Attorney Kevin Danielson of Tulsa argued the context of the law shows it applies only to proceedings in federal court, not state clemency hearings. He cited a 1994 decision by the appellate judges that said "federal courts should not be required as a routine matter to fulfill the state's obligation to provide an adequate and effective" appeal for indigent criminal defendants. "Because Oklahoma created the right to a clemency hearing, it is Oklahoma's responsibility to fund legal representation for the inmate seeking clemency if it wishes to do so," Danielson wrote. "It is not the responsibility of the federal government." (source: The Oklahoman) ARKANSAS----impending execution Appeals court vacates stay of execution for Arkansas man In St; Louis, a federal appeals court has vacated a judge's stay of the November 28th execution of an Arkansas death row inmate. The court said the issue of whether 45-year-old Eric Nance is mentally retarded and, therefore, cannot be executed has already been raised and decided by the courts. Nance was convicted of capital murder in the 1993 slaying of 18-year-old Julie Heath of Malvern. Her body was found in a wooded area and her throat had been slashed with a box cutter. Federal public defenders had argued for the staying, saying that Nance's previous lawyers did not adequately raise the issue of mental retardation. (source: Associated Press) VIRGINIA: Sailors' clemency plea a dilemma for Warner A clemency petition on the desk of Gov. Mark Warner poses a mind-boggling indictment of the criminal justice system. If allegations that 7 innocent men were arrested and four convicted in the 1997 rape-murder of a young Norfolk Navy wife are correct, then police, prosecutors, defense attorneys, juries and judges all failed. And they failed multiple times. The three men seeking clemency are serving life sentences for the murder of Michelle Moore-Bosko. A fourth man convicted of her rape seeks to clear his name through a separate clemency bid. The other 3 are already in the clear, their charges dropped after DNA established an 8th man, Omar Ballard, as Moore-Bosko 's rapist and he confessed to her murder. To accept the innocence of the Norfolk Four, as they are being called, one must believe that they each gave false confessions, including graphic details of depravity, and false testimony in court against one another, all in a bid to save themselves from execution. That scenario may strike many as unbelievable. Outlandish as the claims may sound, there are 3 reasons why they have a ring of truth: The credibility of the sponsors of the petition. The review was initiated by The Innocence Project at the Benjamin N. Cardozo Law School in New York City. It has helped to exonerate 163 wrongly convicted individuals. Presented with numerous claims of innocence, the project accepts only the most plausible cases. At its request, major law firms in Washington, D.C., and New York conducted an exhaustive analysis of the conflicting claims and confessions. The attorneys emerged convinced of a massive injustice. Their conclusions rely on genuine leaders in the field of crime-scene analysis, false confessions and forensic pathology. Consider Larry E. McCann, a highly regarded 26-year veteran of the Virginia State Police. He reconstructed the crime scene and found, in his view, incontrovertible evidence of a single assailant. McCann, whose forensic consulting firm seldom takes defense cases, almost didn't accept this one. "I don't like defense cases. I don't like defense attorneys. For 29 years, I worked to put people in prison," he said in an interview. "But these are 3 innocent guys. They had as much to do with that crime as you did, zero." The confessions are riddled with inconsistencies and provable error. This is most obvious when considered as a group, not individually as a judge or jury would have done. Over several years, as police drew an ever-wider dragnet in the quest for a DNA match, theories of the crime changed dramatically, from one perpetrator to 2, to 3, to eventually eight. Confessions were altered, withdrawn, re-entered and withdrawn again, all against an ever-changing litany of police promises and threats. Anyone doubting the innocence claims should review a four-page chart comparing the conflicting claims about entry to Moore-Bosko's apartment, location of the crime, the number of assailants, the nature of the sexual assault, the murder weapon, and so forth, to the actual evidence of what occurred. They should further test their assumption by reading McCann's 20-page, point-by-point analysis of what each person said and how the statements compared with the evidence. Only 1 person, Ballard, gave a confession that matched provable fact. Though improbable, false confessions by several people are not unheard of. Perhaps the most prominent such case was that of 5 young black and Latino men who confessed, some with their parents present, to participating in the 1989 rape and near murder of a white woman jogging in New York's Central Park. In 2002, after DNA linked another man to the crime and he confessed, the Manhattan district attorney obtained their release. The claimants in the Norfolk case, all young sailors at the time of their arrests, are a mixed lot, some smarter than others. But all were subjected to many hours of interrogation without lawyers present, falsely told that evidence incriminated them, threatened with execution, and presented with confession as a way to save their lives. These are accepted police tools, but they carry a risk. Put the confessions aside, and here's what is left. Not a single piece of forensic evidence connects anyone to the crime, except Ballard. A nearly undisturbed crime scene must somehow have accommodated the coming and going of 7 other men without fingerprints, footprints, witnesses, hair, blood, semen or even evidence of a struggle left behind. The one proven rapist had not previously known the other 7. Is that believable? Many people have dealt with individual pieces or threads of this case, but Mark Warner is the 1st authority given the opportunity to see the puzzle whole. No matter what the fallout and how far-reaching the consequences, he has a moral imperative to say so if the pieces don't fit. (source: The Virginian-Pilot) *********************** Warner may allow DNA test----Testing evidence from 1981 could shape the debate over how capital punishment is implemented today. Gov. Mark Warner appears willing to order DNA testing to determine whether Virginia executed an innocent man in 1992, according to a forensic scientist involved in the case. Edward Blake, who has the evidence that could confirm Roger Keith Coleman's guilt or exonerate him posthumously, said the governor's office has recently shown an interest in tests that were not possible at the time of Coleman's 1982 trial. Ever since Coleman was put to death -- maintaining his innocence from the electric chair -- questions about the case have transcended the stone courthouse in Buchanan. County where he was convicted of raping and murdering his sister-in-law. In a case that received national publicity at the time, Blake was hired by Coleman's lawyers to conduct post-trial DNA testing on biological evidence that strongly suggested, but never conclusively proved, that Coleman's jury was right. Since then, Blake has kept the remaining evidence in a freezer at his California laboratory. Earlier this week, Blake said he had recently received a letter from Warner's office indicating an interest in having the remaining evidence tested, this time using advanced technology that was not available for the first round of testing. Centurion Ministries, a New Jersey organization that investigated Coleman's case and believes he was innocent, asked Warner in February 2003 to order the testing. "As far as I know, it's just a matter of working out some details," Blake said. Warner spokeswoman Ellen Qualls confirmed Tuesday that the governor's office had been negotiating with Blake in recent weeks. But no decision has been made, she said. While cognizant of the issue's potential to cause turmoil in Buchanan County, Warner has also said he wants to be sure that the evidence has remained uncontaminated over the years and that another test would yield valid results. "We've gone to great lengths to work with Centurion Ministries," Qualls said. The governor is proceeding cautiously, she added, because "the implications are profound." Although the life of a condemned man is no longer at stake, the testing of biological evidence from a 1981 crime scene could play a major role in shaping the debate over how capital punishment is implemented today. If the tests were to find that Coleman was innocent -- a prospect that many people familiar with the case say is unlikely -- it would be the first time in the United States that scientific evidence has shown that an innocent person was executed, according to the Death Penalty Information Center in Washington, D.C. Well aware of the potential for Coleman's case to aid their cause, death penalty opponents have followed the case closely and urged Warner at every turn to order the tests. Jack Payden-Travers of Virginians for Alternatives to the Death Penalty has dogged the governor on radio call-in shows for nearly three years. He said he suspects that politics played a large role in Warner's decision to delay a decision until the final weeks of his administration. If Warner were to order the tests now, the results would likely not be known until after he left office. "He comes off smelling like a rose because he can say: 'I have let the truth be known,' " Payden-Travers said. "But he doesn't have to deal with the political fallout of the innocence of someone who has been executed." With Warner being mentioned as a possible presidential candidate, ordering the tests in Coleman's case could play well to voters in states where the death penalty does not carry as much support as in Virginia, Payden-Travers said. In their most recent radio conversation, Warner all but promised that he would order the testing, saying "it's just a matter of working out the procedures," Payden-Travers said. Blake said he has received similar assurances: "The governor's office has made moves to have the sample tested. Whether or not that's going to come to fruition, and I expect that it will, will be up to the governor's office." Although the request for DNA testing has yet to reach Warner's desk for a final decision, negotiations with Blake in recent weeks appear to have removed some complications. Last year, Blake insisted that he do the tests himself. He threatened to refuse to turn the evidence over to Virginia, noting that the state has destroyed biological material in other death penalty cases that could have been subjected to post-trial testing. Blake said he recently agreed to back off that demand in the interest of seeing the issue resolved. The evidence at issue is a semen sample taken from the body of Coleman's sister-in-law. Wanda McCoy was found dead in her home on the banks of Slate Creek, which runs through the town of Grundy in far Southwest Virginia. She had been raped and her throat was slashed. Because DNA testing did not exist at the time of Coleman's trial, authorities could only use blood typing on the sample to narrow the pool of suspects to include Coleman. Since then, Centurion Ministries has argued, advances in technology make it possible to either confirm his guilt or exonerate him with one final test of the evidence. Joined by four newspapers, Centurion Ministries first asked the courts to allow DNA testing. Rebuffed by a Buchanan County circuit judge and the Virginia Supreme Court, the organization then turned to the governor's mansion as a last resort. The sample in Blake's freezer is so small that a final examination would likely consume it, the scientist has said earlier. And there's no way to be sure that it will produce meaningful test results. The only way to find out would be to do what for years has only been talked about: Remove the evidence from a small plastic vial where it has been held for the past 15 years and conduct the tests. (source: Roanoke Times) *********************** DNA testing talks proceed----The exam could prove an executed inmate's guilt or innocence The governor's office, a group that helps prove inmates innocent and a scientist in California are trying to reach an agreement on possible DNA testing in the case of Roger Keith Coleman, executed in 1992. Centurion Ministries of Princeton, N.J., requested in 2003 that the testing be ordered by Gov. Mark R. Warner after efforts in the courts by Centurion and 4 newspapers, including the Richmond Times-Dispatch, failed. Warner leaves office in January. Some believe that Coleman was innocent and that DNA testing could prove for the first time since executions were allowed to resume in the U.S. in 1976 that an innocent person has been executed. Others say testing would likely further implicate Coleman, putting to rest decades of controversy. Evidence in vial The evidence, spermatozoa, is in a vial held frozen for 15 years by Edward T. Blake of Forensic Science Associates, in California. Blake has said DNA technology has since progressed and it might now be possible to definitively prove whether Coleman was guilty. The sample was taken from Wanda McCoy, who was raped and murdered in Grundy on March 10, 1981. Coleman was tried, convicted and sentenced to death in 1982. The evidence against him included blood and hair samples and his confession to a fellow jail inmate. Coleman had an alibi, but the jury didn't buy it. Coleman was executed on May 20, 1992, not long after he made the cover of Time magazine and was interviewed for TV by Larry King. DNA testing was not available at the time of his trial. However, in 1990, a judge had Blake test the evidence. Blake concluded that Coleman and the donor of the tested spermatozoa were within the same 2 % of the population who could have raped McCoy. Failed lie-detector test That test, coupled with other blood tests, found Coleman was within 0.2 % of the population that could have been the perpetrator. Coleman also failed a lie-detector test administered shortly before he was executed. Coleman supporters and others contend that the earlier DNA test was not interpreted properly and that the results were based on flawed assumptions. Blake and James C. McCloskey, executive director of Centurion Ministries, could not be reached for comment yesterday. Ellen Qualls, spokeswoman for Warner, said Warner's counsel, Robert Crouch, "has been working for many months with Centurion Ministries and Dr. Blake to try to come to some agreement about how the evidence can be retested with integrity." Qualls explained that it must somehow be certified that the sample has not been compromised over the years it has been in storage. If there is retesting, Qualls said, it must also be agreed that it be done by an independent, third-party laboratory. "They're making progress," Qualls said, but they all "need to be in agreement that the process would have integrity before it is something we would take to the governor for a decision." Qualls said Warner has also been mindful of the impact retesting could have on the community of Grundy. A book, "May God Have Mercy" by John C. Tucker, was written about the case, outlining evidence for and against Coleman's innocence. Tucker said yesterday that new testing should be done for 2 reasons: If Coleman was innocent, it's important to catch the real killer, and it's important to the public debate about the death penalty to know if an innocent man was executed. The Virginia attorney general's office fought new testing of the evidence in the courts. However, a spokeswoman said yesterday that the decision is now up to Warner. (source: Richmond Times Dispatch) ******************* Pardon These Innocent Men, Governor Warner: It can be easier to put a man in jail than to get him out, even in America, even when everything says you're innocent. Sometimes being innocent works against you, because it means someone somewhere has made a mistake. The system rallies round the accuser, not the wrongly accused. Better that an innocent man remain in prison than the legal system be put on trial. That's the sad state of affairs in Norfolk, Virginia, where 3 young sailors appear to have been pressured into confessing to the rape and murder of a Navy wife, Michelle Moore-Bosko. The 3 men, who are 29, 33 and 35 years old, are serving life terms with no possibility of parole. Their cause has been taken up by the Innocence Project, a nonprofit legal clinic, and by 3 law firms working pro bono, Hogan & Hartson LLP, Holland & Knight LLP and Skadden Arps Slate Meagher & Flom LLP. 'Egregious Miscarriage' On Nov. 10, the law firms filed a clemency petition with Virginia Governor Mark Warner. In the petition, Richard Ofshe, a University of California at Berkeley social psychologist who specializes in false confessions, says what happened to the three sailors "may well be the most egregious miscarriage of justice I have examined." How do innocent men admit to something they didn't do? Try coercion, exhaustion, fear, weakness and cutting a deal to escape the death penalty. All of that is at play, according to affidavits and other documents gathered by the lawyers. Though there isn't one piece of DNA or other evidence linking the men to the crime -- even according to the state's own forensic experts -- and despite the fact that the men have recanted and another man has admitted he committed the crime alone, neither the police nor the prosecution will back down. Here is what happened, according to documents filed with the clemency petition and interviews with Deborah Boardman, a Hogan & Hartson attorney working on the case. The Norfolk police department didn't return my phone calls. 9 Hours On July 8, 1997, Moore-Bosko's husband returned from his tour at sea expecting to be picked up by his wife. She was not at the ship to greet him. When he arrived home by cab, he found her body, bloody from multiple stab wounds, on the floor beside their bed. After arriving at the scene, the police turned their attention to a neighbor, Danial Williams, who had called 911 at the husband's request. Williams, whose wife had just returned home from cancer surgery two days before (and who would die four months later), accepted their invitation to go to the police station, thinking, according to his affidavit, he might be helpful. He was interrogated for 9 straight hours. Although the police had nothing to connect Williams to the crime, they said they did. They said DNA evidence would prove him guilty. They claimed to have an eyewitness placing him in the apartment. (They never produced any such witness.) According to Williams's affidavit, one detective repeatedly yelled in his face, poked him in the chest and told Williams he knew he had killed Michelle. The detective threatened the death penalty if Williams didn't cooperate and promised leniency if he did. 'Wore Me Down' Williams said in his affidavit that the detectives also told him he had failed a lie detector test that he had volunteered to take. Actually, he had passed, according to a Norfolk police polygraph report obtained by his present lawyers. Exhausted, frightened and with no lawyer to advise him otherwise, Williams spewed out a nonsensical confession that didn't come close to matching the crime. He said, for instance, that he had hit Michelle with a shoe. When the autopsy came in a few hours later showing Bosko had been stabbed to death, the police got Williams to amend his confession. He told them that yes, he had stabbed her. Explaining to his parents the next day why he had confessed, Williams said in his affidavit: "I told them I confessed because the police wore me down." As far as the police were concerned, they had caught their man. Until reality intruded, in the form of DNA evidence: It wasn't Williams's blood or semen at the scene, according to the forensic lab. 7 Arrests So the police began to search for accomplices and proceeded to arrest a friend of Williams, and then another and another. By January 1999, they had rounded up 7 men. None of them proved a match for the DNA evidence. Still, 3 of them, after interrogations that they describe as similar to Williams's, confessed. (The fourth was convicted of rape and released from prison in September; he has a separate clemency petition pending.) In February 1999, Omar Ballard, an acquaintance of the dead woman who was in prison for rape, wrote a chilling letter to his sister-in-law boasting that he had killed Moore-Bosko and that he had acted alone. The sister-in-law took the letter to the police. Confronted by police with his letter, Ballard at first denied everything. But confronted with a DNA match, he admitted everything. Unlike the others who had falsely confessed, Ballard had the details right, including one consistent with Virginia's forensic analysis: only one person had come into Michelle Moore- Bosko's apartment that night. New Statement During plea bargaining, Ballard changed his confession. To avoid the death penalty, he agreed to sign a new statement typed up by detectives saying that the other accused men had been in the apartment. Ballard is now serving a life sentence for the crime. Once his deal was cut, Ballard went back to his original statement that he had acted alone. He has signed an affidavit to that effect for the clemency petition, on behalf of the three sailors whom he says he has never met. Williams and the others "did not participate in any way in the murder of Michelle Moore-Bosko," Ballard says in the affidavit, dated March 30. 2 of the 3 men now serving life sentences, including Williams, pleaded guilty. One went to trial and was convicted, but the conviction was overturned in a second trial. An interesting piece of information came out in that second trial, according to the trial transcript. Out of the hearing of the jury, the detective that the 3 men say coerced them into confessing admitted he had extracted false confessions in an earlier case. "3 young men, Navy veterans, are wasting their lives away in prison to justify a string of false confessions about a crime they had nothing to do with," attorney Boardman told me. "Governor Warner should intervene." Time is short for Warner. He has only two months left in office. The governor also has presidential ambitions. Candidates are tempted to play it safe, to make no decision that can be misconstrued in a 30-second Willie Horton ad. But he should take the risk and right a terrible wrong. That's what a man who would be president should do. (source: Margaret Carlson, Bloomberg) **************** Inmate won't face death penalty Dewey Keith Venable, the 25-year-old convict charged with the murder of his cellmate, Richard Alvin Ausley, Virginia's most notorious pederast, is no long facing a possible death sentence. Venable will now be tried for 1st degree murder next February, his lawyers say. Ausley, 64, was strangled and beaten to death in January 2004. In 1973, he abducted a then 13-year-old boy and kept him buried in a box while repeatedly sexually assaulting him. (source: Richmond Times-Dispatch) NEW JERSEY: Need for reform----Costs, non-use make death penalty a loser New Jersey has a death penalty on the books, but not in practice. No one has been executed in the state since the death penalty was reinstated in 1982 following a U.S. Supreme Court ruling a few years before. There is no reason for the state Legislature to allow the current state of affairs to continue. If we wish to have the death penalty, let's figure out a way to use it. If not, let's do away with it. We prefer the latter option for the simple reason it has proven so difficult to administer the death penalty fairly. As the law stands now, a defendant must first be found guilty by a jury. After that happens, a second trial is held to consider whether the defendant should be executed. That second proceeding includes the introduction of "aggravating," and "mitigating" factors for the jury to consider. If the jury comes down in favor of execution, that ushers in multiple appeals. Death penalty opponents Monday cited a study by New Jersey Policy Perspective that said the state has spent $253 million on various death penalty cases since 1982. We have no independent verification of that number, but the group's point is well taken. The Legislature should do away with the death penalty -- something that does not exist in practice -- in favor of life without parole. State Sen. Anthony R. Bucco, R-Boonton, who backs the death penalty, says he worries about a cop killer, or a child killer, getting away. That's a legitimate worry, but let's be practical: life without parole is not getting away. Governor-elect Jon Corzine has said he opposes the death penalty. We hope he will push the Legislature to get rid of something that isn't even being used. (source: Opinion, Daily Record)
