Jan. 1, 2006 PENNSYLVANIA: Welsh S. White | Former Phila. Prosecutor Welsh S. White, 65, a former Philadelphia prosecutor and longtime University of Pittsburgh law professor who emerged as a prominent critic of the death penalty, died yesterday. The cause of death was lung cancer, university spokeswoman Maddy Ross said last night. Mr. White was the author of a 10-year study of police interrogations and wrote several books on capital punishment, including the forthcoming Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. "His carefully crafted scholarly work helped change views of the death penalty and the way that it is administered," Chancellor Mark Nordenberg said. Mr. White joined Pitt's law faculty in 1968, following service as an assistant district attorney in Philadelphia and a lawyer for the Philadelphia firm of White and Williams, founded by his grandfather, Thomas Raeburn White. He graduated from Harvard University in 1962 and Penn Law School in 1965. Mr. White is survived by his wife, Linda Timmons White; 2 sons, Henry White and Ryan White; two daughters, Robin White and Kathryn Hawkins; and 2 brothers, William White and Alexander White. Services are private. (source: Philadelphia Inquirer) MASSACHUSETTS: Death Wish----Its been almost 60 years since our last execution. We went to Texas to see what we could learn from a land that embraces capital punishment. On October 6, it was Ronald Ray Howard's turn. Hed spent his last days reading, sleeping, cleaning his cell, and receiving visitors. Hed requested no last meal. At 6 in the evening, guards at the prison compound in Huntsville, Texas, escorted him from a holding cell to the execution chamber, a small, stark box of a room with brick walls painted turquoise, empty but for a gurney covered by a thin mattress and a hospital pillow. Members of the "tie-down team" fastened the gurney's leather straps around Howard and secured his arms to the narrow boards that winged out to either side of the mattress. They covered his lower body with a white sheet. They stuck both his arms with IVs. Attendants to the execution filed into 3 separate compartments: one small viewing room for witnesses who had been close to the murder victim, one for Howards witnesses, and another room from which an anonymous technician would administer the poison. As a reporter, I was admitted to one of the witness rooms - the victim's room, as it happened - where I stood behind the widow and daughter and former colleagues of Bill Davidson, the man Howard had killed 13 years earlier. From the back of the room, I found myself in the odd position of straining to get a better view of something I didn't want to see: Ronald Howard's execution. "It's painfully surreal," a defense lawyer who had been to 2 executions had warned me. "The idea that you go into a room where somebody's alive and you're not going to come out until they're dead. . . . It haunts me." Through the spaces between the bodies in front of me, I could make out the warden stationed by Howard's head, the chaplain at his feet. A microphone descended from the ceiling over the gurney, so that he could give his last statement. Howard was a big handsome 32-year-old black man from Houston who had shot and killed Davidson, a white state trooper, when Howard was 18. He lifted his head from the pillow and faced the barred window that separated him from our room. "To the victim's family," he said softly, "I hope this helps a little. I don't know how, but I hope it does. "And to y'all," he added, turning to the other window, behind which his younger brother and 2 friends were watching, "I love y'all. You know I love you." He thanked them for locating several of his children and repeated that he loved them. At 6:12, the lethal dose began flowing. "I love you. I love you," he whispered before lying back down. One of the drugs administered, pancuronium bromide, collapses the lungs; another, potassium chloride, stops the heart from beating. Howard's last breath was a sharp intake followed by a sigh. Linda Sue Davidson and Kimberly Karl, Bill Davidson's widow and daughter, waited before the window, just a few feet from Howard, their arms around each other. They were substantial women in heavy makeup; the widow wore a mans wedding band on a chain around her neck. After Howard closed his eyes, they turned to face each other and whispered, "I love you." Then they kissed lightly. At 6:24 Howard was pronounced dead by a doctor in a dark suit and rubber gloves. This is the way it goes in Texas, which has executed more people than any other state and carried out more than 1/3 of the executions in the United States since 1976. Howard was the 14th person to be executed here in 2005, the 350th since Texas reinstituted the death penalty 30 years ago. More than 2/3 of Texans support the death penalty, though it's not as if they clamor for it: The machinery of capital punishment has been grinding away steadily for so many years that another execution barely draws notice, much less outspoken approval. Although Howard's crime was notorious at the time it went to trial, most people had long forgotten about it by the time of his execution. In truth, lately there's been more discussion of the death penalty in Massachusetts than in Texas. The last 3 Massachusetts governors have all supported capital punishment. In 2003, the death sentence handed down to Gary Lee Sampson - convicted under a federal death penalty statute after murdering 2 people in Massachusetts during carjackings - reignited debate within the state. Then last April, Governor Mitt Romney introduced a bill that would have reinstated capital punishment, only to see state representatives reject it in November. "We knew it was an uphill battle, but it's still disappointing as I hoped the Legislature would take a second look at the protections built into my bill," he says. "My hope is that over time the members of the Massachusetts Legislature will come to believe, as I do, that there are some crimes that deserve the ultimate penalty and that just as science can free the innocent, it can also identify the guilty." Last month, in announcing he won't seek re-election, Romney said getting his death penalty bill passed with a Democratic-controlled Legislature was impossible. The governor's critics scorned his proposal as a mere political gesture, one that would endear him to conservative voters were he to run for president. Even so, Romney's attempt to bring a "state of the art" death penalty system to Massachusetts illustrates the enduring support for capital punishment - in a 2005 State House News Service poll, 2/3 of the state's residents favored his proposal - while pointing to the same questions raised in my mind by Ronald Howards execution: How does the death penalty help? What purpose has it served? And given the egregious flaws in existing death penalty systems, could the death penalty ever be made "fair"? Between the time of Howard's initial conviction in 1993 and the present, the death penalty has come under greater scrutiny around the country, in large part because of the number of exonerations from death row - 122 people have been released since 1973, 54 of them since 1997. DNA testing of evidence has accounted for some of those cases, but only a fraction. Almost 90 % of exonerations have resulted from other developments, such as the recanting of witness testimony or refinements of forensic techniques, according to the Death Penalty Information Center. These cases highlight not only the risk of convicting and killing an innocent person (an act that has almost certainly happened) but also the broader flaws and inequities of the process. Still, the executions continue. Since 1977, an average of 1 person every 10 days has been put to death in the United States - more than 1,000 total - and another 3,400 sit on death row in the 38 states that have capital punishment. The flaws in death penalty systems have convinced many to support state moratoriums, most prominently George Ryan in 2000, when he was governor of Illinois. Before Romney sent his bill to the Legislature, he both acknowledged the widespread criticism of existing systems and challenged the assumption that they couldnt be fixed by convening a commission to come up with a better system for Massachusetts. The state needs a death penalty, he says. Although there's little research evidence that the death penalty serves as a deterrent to crime, in an interview with me shortly before his bill was voted down, he insisted that it would. "Studies can show whatever you want them to show," he says. "Punishment has an impact on action, and the idea that a more severe punishment would have an impact on action is obvious to even a schoolchild. There's absolutely no question but that the death penalty would reduce a certain number of heinous crimes." In December 1923, after Texas legislators voted to replace locally administered hangings with state electrocutions, an electric chair (soon to be known as "Old Sparky") was installed in the Huntsville prison. Captain R.F. Coleman quit his job as the Huntsville warden a month later. "It just couldn't be done, boys," he told reporters. "A warden can't be a warden and a killer, too. The penitentiary is a place to reform a man, not to kill him." The record of Texas's capital punishment system, likened to a lottery by Texas Monthly magazine after a 2002 investigation, suggests how difficult it is to impose a death sentence justly. The Texas system's shortcomings - among them court-appointed defense lawyers napping during a trial and inept crime labs - have been widely publicized. It is indigent defendants who end up with narcoleptic legal representation - and who end up on death row. "Most of the people that are sentenced to death are the underprivileged and the poor," says James Marquart, a professor of criminology at the University of Texas at Dallas and coauthor of a history of the state's capital punishment. "We define them as being different from the rest of us, and when somebody is defined as different, you can treat them in some pretty harsh ways." Back in 1972, in part because of evidence that the death penalty was meted out disproportionately to poor and minority defendants, the Supreme Court ruled that capital punishment as it had been practiced was unconstitutional. To resume executions, state legislatures had to draw up stricter sentencing guidelines for juries to follow. In Texas, that meant making only certain kinds of murders eligible for capital punishment and requiring that juries find the defendant to be a continuing threat to society. Since the change in the law, the racial bias in death sentencing has been reduced in Texas, but black defendants still make up the highest percentage of the states death row. Take Ronald Howard, who grew up in Houston's South Park ghetto and started stealing cars and dealing drugs as a teenager. The DA who prosecuted him portrayed him as a ruthless gang member; his own attorney maintained that gangsta rap had prompted him to kill Davidson. No one disputed that on the night of April 11, 1992, Howard was driving a stolen GMC Jimmy down a highway in Jackson County south of Houston when Davidson pulled him over for a broken headlight. As the officer approached, Howard grabbed a 9mm pistol his mother had bought at a pawnshop. He rolled down the window, took one shot, then drove off. Other officers took up the chase, and Howard slammed the car into a house before being caught. Davidson died a few days later. Murder of a law enforcement officer is a capital crime in Texas; whether to seek the death penalty in a capital case is up to the district attorney. "We get all the information we can and find out about mitigating and aggravating factors," explains Lyn McClellan, a prosecutor for the Harris County district attorneys office. "Is this a first offender? Does he have mental disabilities? Does he have drug problems? This is all taken into consideration on whether or not we'll seek death or try it as a non-death capital." Texas death penalty trials are divided into 2 phases: the guilt-innocence phase and the punishment phase. It's this 2nd phase that charges 12 ordinary people with weighing another person's worth. They consider whether the offender is likely to pose a future threat to society and whether any mitigating factors might merit sparing him or her. Thus the decision about death depends a great deal on the temperament of the jury and the quality of the storytelling in the punishment phase of the trial. Jurors who have just found someone guilty of a brutal murder are not typically disposed toward lenience, but the defense attorney's job is to try to explain "what were the influences that went into making this person who they are, be they societal problems or issues, mental health issues, family issues," says John Niland, director of the Texas Defender Services Capital Trial Project. In Howard's case, tried a year after the crime, the Jackson County DA, Robert E. Bell, sought the death penalty. Since Howard admitted guilt, the only question at issue was whether he would live or die. Trying to persuade the jury to let him live, defense lawyer Allen Tanner explained that Howard had lived all his years in a neighborhood where relations between residents and police were poor and in a city where 2 people had been killed in confrontations with law enforcement officers in recent years. He said that Howard felt Davidson had pulled him over just because he was black. He said that Howard had been to jail before and hadn't wanted to go again and that Howard thought by wounding Davidson he might get away. Tanner said Howard hadn't intended to kill Davidson and didn't pose a risk to society. And he said that Howard had been listening to albums that advocated violence against cops, like Tupac Shakurs 2Pacalypse Now. He even played rap recordings for the jury. (One wonders whether this helped or hurt Howard's cause.) Bell, on the other hand, characterized the murder as "a coldblooded execution" of a husband and father just doing his job. After 6 days of deliberation, during which 2 of the jurors held out for life, the jury agreed with the prosecution and voted unanimously for death. In the view of prosecutors like McClellan, death sentences result from the horrible facts of the crime itself, not the quality of the lawyers. "People think, 'These Texas juries, theyll kill you,'" McClellan says. "Well, these Texas juries are about 60 % people from up north. I defy you to find one thats not. People think everybody here was born and raised Texan with a 6-shooter on their side, and that's just not the way it happens." But without belittling the seriousness of Howard's crime, even a death penalty supporter might question whether the 18-year-old should be sentenced to die for it. Or whether we ought to execute those who murder impulsively in the course of a robbery. Are they "the worst of the worst"? Marquart, a capital punishment supporter, maintains that the death sentence has undergone something like mission creep. When legislators designed the new law in the 1970s, he says, "you had to be a continuing threat to society, with a sustained history of violence and pathology in your background. It was Ted Bundys and people like that - thats what they wanted in the beginning. To me, the death penalty has just been overused for crimes that I don't think meet that kind of criteria." So what would a "better" death penalty system look like? Enter Mitt Romney, who pledged during his 2002 campaign for governor that he would attempt to reintroduce capital punishment in Massachusetts. In 2003, he appointed an 11-member commission to develop recommendations for "a new kind of death penalty," one that would be narrowly applied and require the highest possible standard of evidence. The Massachusetts Governor's Council on Capital Punishment, which included scholars, lawyers, and forensics experts, did not consider whether capital punishment should be reinstated - only how a better law might be written - and its members pledged to set aside their opinions about the morality and desirability of the death penalty. "I actually deliberated for months before accepting the appointment, in part because I work at a hospital, where our mission is to alleviate pain and suffering," says Frederick Bieber, a forensic DNA expert and associate professor of pathology at Harvard Medical School who served as cochairman of the council. "And I wondered, quite frankly, whether it might be an inherent conflict to have any role in a discussion of taking a life." But in the end, he accepted "with enthusiasm," he says, "because 38 states and the federal government and the US military all have legislation allowing the death sentence, and many are beginning to reevaluate their existing laws, and I felt if we did a good job, we could have a positive influence on other groups." In contrast to the reform commission called for by then-governor Ryan in Illinois, the Massachusetts group was not constrained by a death penalty law already on the books, with its associated institutions and vested political interests. The commission operated free of practical concerns. What a capital punishment system would cost and how it would be implemented were outside its purview, a great advantage, according to Joseph Hoffmann, an Indiana University law school professor and a cochairman of the commission. "The governor said, Give us the gold standard; tell us the best we can do,' and that's the reason I got involved," Hoffmann says. "It was an opportunity to go places nobody had gone before and put together something better than anything that exists today." The commissioners limited death-eligible crimes to a short list of highly aggravated murders: murder committed as political terrorism or to obstruct justice; murder following prolonged torture; multiple murders; or murder committed by someone who had already been convicted of 1st-degree murder. Some of the commission's other recommendations, incorporated into Romney's bill, required the use of scientific evidence and a "no-doubt" standard of guilt to avoid false convictions, established a system of capital-case-qualified defense lawyers to represent the accused, and incorporated multiple layers of review that would detect bad cases or wrongful convictions. To have a fairer death penalty, Hoffmann says, the state would have to implement all of the proposals, not pick and choose. "These are not in isolation, and one of the real dangers is to think that if we just do 1, 5, and 7, we'll be all right," he says. Like Bieber, Hoffman hopes the commission's work will influence reform in other states, even if a death penalty bill never passes in Massachusetts. Problems with capital punishment elsewhere, however, are directly linked to a state's unwillingness to pay the high price of strong capital defense. "How many on death row get executed because of a failure of their lawyer?" asks David Dow, director of the Texas Innocence Network at the University of Houston Law Center. "Almost everybody. Getting death is only distantly related to what he did. Proximately, it's that he had a bad lawyer, a corrupt prosecutor, corrupt police - that is what lands people on death row. We still have lawyers abandon their clients at various stages of the legal proceedings." Ronald Howards lawyer, Dow contends, failed to file a final appeal with the US Supreme Court. And while the state can require that death penalty cases go to more experienced lawyers, as Texas did in 2001, "what you can't guarantee is an adequate defense, because the state is not willing to pay the lawyers enough," Dow says. That's not a problem only in Texas. Massachusetts lately has had trouble assigning lawyers to poor defendants in criminal cases because of the low fees paid by the state. Last year, Romney denounced lawyers' refusal to take such cases and, initially at least, resisted calls for raising the pay scale. But Romney brushed away questions about the cost of his proposal. "This is not a measure based on cost. This a measure based on life, the preservation of life through the deterrent of the death penalty," he told me. "In my view, those people who oppose the death penalty on moral grounds have an understandable and fair posture, but those who try to manufacture other reasons are ducking." The last time Massachusetts came close to passing a death penalty law was in 1997, after Jeffrey Curley, a 10-year-old Cambridge boy, was abducted, sodomized, and murdered by 2 men. The crime received heavy media coverage, and in the Legislature, the 10-vote margin opposing passage of a death penalty bill dissolved overnight. The Senate adopted one version, and the House voted 81-79 to pass another, and only in a 2nd House vote did the bill fail, because 1 legislator changed his mind. Since then, the state's Republican governors have continued to support the death penalty while the margins against it have widened in the House and Senate (the House vote on Romney's bill was not even close, 99-53, and the Senate has no plans to even consider it). Most anti-death-penalty activists feel fairly secure that Massachusetts will not reinstate capital punishment. "We've had leadership in the Legislature who are opposed to the death penalty, which means that no one's pushing it from within," says Norma Shapiro of the Massachusetts ACLU. Still, the activists admit, another crime as gruesome as the Curley murder could tip the balance back the other way. 2 weeks before his execution, Ronald Howard granted me an interview. We spoke by prison phone, seated on opposite sides of a window in the visiting room at the Polunsky Unit, where Texas death row is housed. He'd been saying his goodbyes, preparing for his "date," but at the same time he was trying not to worry too much about it. He was soft-spoken and reflective. "To be real, I feel like if somebody did something to your little one, your loved one, you want revenge," he said. "I want to say no, because I feel like all people can change, but I find myself being conflicted when I think about my own loved ones. All in all, if I was to have to say, a punishment of life probably would be fine. That's more of a punishment anyway. Who wants to grow old in prison?" Speaking of his own case, he continued, "I'm in trouble for having killed a police officer. That one instance labels me for the rest of my life. Is that fair? It's not a process that you really get the worst of the worst, there's no way to ever do that. On Texas death row, you have a lot of people who were between 18 and 22 years old when they got into trouble. 10 years later, are they the same person? Some of them may still be, but a lot of us grew up. A lot of us did things we weren't proud of when we were kids. Do we need to be killed now?" For McClellan, the Harris County prosecutor, the death penalty is "society's right of self-defense." Though, unlike Romney, he doubts that it has a deterrent effect, he likens the death penalty to someone's shooting his attacker. "When you do an unpardonable act that can never ever be changed, you have to face the consequences," he says. But what consequences? The risk of convicting and killing an innocent person is itself one argument against the death penalty, but even the sentencing of murderers who are certainly guilty raises a difficult question: Is there a systematic way of determining who "deserves" to die? Last year, at an Indiana Law School conference convened to analyze the Massachusetts Governors Council report, one scholar noted that requiring the prosecution to meet a "no doubt" standard of guilt would leave some of the most heinous crimes ineligible for the death penalty. I asked Howard what he thought of the jurors whod condemned him. "I wish they could have had a chance to really know me instead of just sensationalism," he said. "I wasn't the person I was portrayed to be. I would never try to tell you that I was an angel, but I wasn't that horrible, the worst of people. No, that wasn't me." The state of Massachusetts last executed a man in 1947, when convicted murderers Philip Bellino and Edward Gertson were put to death in the electric chair at Charlestown State Prison. In the 1950s and '60s, the death penalty was legal in Massachusetts, but a series of anti-deathpenalty governors refused to sign the death warrants of the convicted. And in 1957, Governor Foster Furcolo appointed a commission to study abolishing the death penalty. The majority on the commission concluded that the death penalty did not offer the community more protection than did life imprisonment and recommended that it be abandoned. The Supreme Judicial Court declared the death penalty unconstitutional in 1975 and again in 1984, but the issue of capital punishment nevertheless keeps rearing its head in political campaigns. "We're still living with the fear that rising crime instilled in people," says Boston College professor Alan Rogers, who is writing a history of the death penalty in Massachusetts. "Anyone who has aspirations of running for governor or higher political office does have to say something about the death penalty, and usually what they have to say is that they are in favor of it." Because Romney didn't assign anyone to study the necessity, cost, or practical implementation of a death penalty statute, critics believe his proposal was never serious. "It's solely symbolic," says Franklin Zimring, a law professor at the University of California at Berkeley. "What happened in Massachusetts is the governor said: 'Look, I want to have a death penalty. Go find out for what I should have it.' And they come back and say, 'Practically nothing, but it'll be pretty safe.'" So perhaps Romney did invent the perfect death penalty, one that would never send the wrong man to the execution chamber - a death penalty that's only the idea of the death penalty, never turned into law and therefore never liable to any of the error and injustice that actual death penalties wreak elsewhere. (source: Karen Olsson is a contributing editor for Texas Monthly and the author of a new novel, Waterloo; Boston Globe) CALIFORNIA: Death penalty backlog to stay? The execution of Crips gang co-founder Stanley Tookie Williams at San Quentin State Prison and the looming lethal injections of 2 more men early next year have revived a long-running discussion over whether executions will accelerate on the nation's largest death row. Scholars and attorneys have been projecting a revolving door into California's death chamber, but despite three executions likely in 3 months, California isn't about to turn into an execution mill. "I've said often we don't want to churn them out like they do in other states," California Supreme Court Chief Justice Ronald George said recently. Since 1977, when the death penalty was reinstated, California has executed only 12 inmates, while 646 inmates now wait their turn at San Quentin. It took 24 years to put Williams to death Dec. 13 for 4 1979 shotgun murders in Los Angeles County. By comparison, Texas, the nation's most frequent executioner, has carried out 355 killings since 1982. Death row's growth in California was fueled in part by tough-on-crime prosecutors eager to please voters - 68 % supported the death penalty in a poll last year - and an overloaded court system careful not to kill the innocent. More than 100 of the condemned haven't been appointed an attorney for their mandatory first appeal to the California Supreme Court, in part because lawyers aren't willing to undertake the extensive training required or accept the $125 hourly rate paid by the state, which is low by legal standards. Even when lawyers are appointed, it takes years to exhaust all appeals. The most recent killer who reached that stage is Clarence Allen, who is scheduled to die Jan. 17 for ordering the murders of 3 people in 1980. At 75, he is the oldest on death row and is blind, deaf and uses a wheelchair after having a heart attack. Only 1 other condemned man, Michael Morales, has been cleared for execution by all courts. Morales, 46, was sentenced to die for the 1981 rape and murder of 17-year-old Terri Lynn Winchell in Lodi and is expected to be headed for the death chamber in February. "This constant wait has kept the nightmare of her murder constantly before our eyes, waiting for justice to be served," said Winchell's mother, Barbara Christian. The next condemned inmate in line, Mitchell Sims, 45, likely won't be executed until late next year, if at all, for killing a Glendale pizza deliveryman in 1985. His final appeal rests with the U.S. Supreme Court. On appeal, inmates usually allege evidence was wrongly admitted at trial and that jurors were biased, and typically blame their attorneys for poor representation. After a direct appeal to the state's high court, they often appeal again to the same justices with new complaints. As many as 162 condemned inmates haven't been provided an attorney for their 2nd state appeals. Challenges also languish in the federal system, where about 170 capital appeals are waiting their turn in district courts. Nearly 3 dozen cases are before the 9th U.S. Circuit Court of Appeals in San Francisco, which has reversed more death sentences than it has approved since California lawmakers reinstated the capital punishment. "Most people understand, when we're talking about the state taking somebody's life, you want to make sure everything is done by the book," said Judge Alex Kozinski, a President Reagan appointee on the 9th U.S. Circuit Court of Appeals. The backlog has prompted the graying of death row where inmates idle for decades. 4 times as many inmates have died of natural causes, suicide or murder than the dozen inmates put to death since 1977. Congressional legislation in 1996 was meant to speed the appellate process, and by all accounts it is beginning to limit federal appeals, which experts say will eventually shorten the time from conviction to execution. "If things keep going the way they are going, we are going to have multiple executions each year, which will eventually be monthly and beyond that," said Santa Barbara capital defense attorney Robert Sanger. "Mathematically, it's just a matter of time." California lawmakers hold no illusion that the country's biggest death row will begin shrinking anytime soon. Despite proposals at the Capitol for a moratorium on the death penalty, legislators have approved $223 million to build a new death row at San Quentin. At more than $300,000 per cell, the new death row is projected to have 768 cells, and prison officials said they could begin double bunking when that's full. Assemblyman Joe Nation, D-San Rafael, opposes the prison expansion. It's in his district and he wants the aging facility dismantled. "By the time this is constructed, death row will have at least 1 inmate per cell," Nation speculated. "My prediction is the Department of Corrections will then come back to the Legislature and ask for more money for yet another death row expansion." (source: Associated Press) ************** State expects number of executions to rise California's capital punishment debate -- ignited by the execution of Stanley "Tookie" Williams -- will likely intensify as the state prepares to carry out death sentences at a pace unseen in more than a generation. Williams, the quadruple murderer and co-founder of the Crips whose tale of redemption failed to spare his life last month, was the 12th inmate executed in California since voters reinstated capital punishment nearly 3 decades ago. In 2006, 4 inmates could enter the execution chamber, including the state's oldest death row resident, 75-year-old Clarence Ray Allen, according to the state attorney general's office. Who is next This month, Allen is scheduled to die by lethal injection for masterminding a 1980 triple homicide in Fresno. He has been on death row at San Quentin State Prison for 23 years. Also facing likely executions in 2006, according to the attorney general's office: - Michael Angelo Morales, who arrived on death row in 1983 for the rape and murder of a teenage girl in Lodi. A judge is set Tuesday to schedule an execution date that could be in February or March. - Mitchell Carlton Sims, who was convicted 20 years ago of murdering a Los Angeles-area pizza deliveryman. Sims will soon file a petition in the U.S. Supreme Court. - Stevie Lamar Fields, convicted in 1979 of the kidnap, rape and murder of a University of Southern California student librarian. A federal appeals court ruled against him this month, but that court may not be done with the case. 27 years after Californians voted to reinstate capital punishment, large numbers of death-row inmates are approaching the end of the decades-long appeals process. Since the practice resumed in 1992, only 3 times has the state executed more than 1 inmate in a single year. More than 640 on row Dane Gillette, capital case coordinator for the state attorney general's office, said he expects to see more executions beginning next year. "2 to 3 years from now, it's possible to have a considerable number of cases," he said. With more than 640 inmates sentenced to execution, California has the largest death row in the nation. About 120 inmates' appeals are pending in federal district court. Californians have overwhelmingly embraced the idea of justice through capital punishment for the state's most violent criminals. More than 70 % of voters approved reinstatement of the death penalty in 1978. And last year, 68 % of California voters voiced their support of the death penalty, according to the nonpartisan Field Poll. That number, though significant, was actually down from the 83 % of Californians who supported capital punishment in 1986. Another survey, by the nonpartisan Public Policy Institute of California, found that 57 % of residents polled last year believed in the death penalty. But support dropped to 38 % when life without parole was offered as an alternative sentence for a 1st-degree murderer. The 2004 polling numbers also show that more than 1/3 of voters do not agree that the death penalty has been imposed fairly or free of error. The doubters and DNA Among the doubters is Donald Heller, the Sacramento attorney and former federal prosecutor who drafted the state's 1978 death penalty initiative. Heller, now a defense attorney, said he has grown disturbed over the years at how the law has been applied. He says the proposition he wrote has been enforced in a way he believes is unfair and discriminates against the poor and people of color. At least 6 California inmates sentenced to death were later acquitted of murder charges or had charges overturned and not reinstated, according to San Francisco-based Death Penalty Focus, a grass-roots group seeking to abolish capital punishment. The introduction of DNA evidence and accounts of innocent inmates on death row -- including the death sentence commutations in Illinois by then-Gov. George Ryan 2 years ago -- have inevitably influenced attitudes in California, Heller said. Slow process Appeals don't begin to move until the California Supreme Court appoints defense lawyers. But with willing and qualified defenders in short supply, that takes about 3 years on average, and new lawyers usually must be appointed as cases progress from one phase to the next. Once a defendant is sentenced to death, an automatic appeal process begins in the California Supreme Court. In addition to the appeal, a condemned inmate also has 3 years to file a new case with the same court, making claims based on new evidence and asserted constitutional violations before or during the trial. If the state Supreme Court denies all relief, as it almost always does, both cases move to the federal system. The appeal goes to the U.S. Supreme Court with a request for review. The constitutional case, known as "habeas corpus," goes to federal district court, then the 9th U.S. Circuit Court of Appeals, before making its way to the U.S. Supreme Court. New cases may be filed as investigators continue to dig for new evidence. Appeals limit sought Rep. Dan Lungren, R-Gold River, is backing new legislation to limit federal review of inmate appeals. He said "interminable delays" in the appeals process have allowed cases to pile up over the years, delaying justice for victims' families and the courts that imposed the sentences. The bill has encountered unexpected resistance, however, from the chief justices of the 50 states, who have voted unanimously to oppose it. "We are concerned with speed and efficiency, but we're also concerned with fairness," said California Chief Justice Ronald George, a former death penalty prosecutor who has done much to expedite death penalty cases in the state court system. (source: Sacramento Bee) ******************* Do Not Execute Clarence Ray Allen! Take action at www.democracyinaction.org/dia/organizations/ncadp/campaign.jsp?campaign_KEY=1735 Clarence Ray Allen Jan. 17, 2006 California Clarence Ray Allen, a white man, faces execution in California on Jan. 17, 2005 for 3 counts of murder and conspiracy in Fresno County. Allen is said to have masterminded a number of robberies and murders in Fresno County, including the murders of potential witnesses against him while he was in prison. Reviewing Allen's case, the U.S. Ninth Circuit Court of Appeals in 2005 found that Allen's trial counsel had been inadequate. Allen's sentence was not reversed and no retrial was called for because the court also believed that the evidence in the case was overwhelming. Unfortunately the supposedly overwhelming evidence mostly consisted of the testimony of Allen's several accomplices. Allen's accomplices paint Allen as the mastermind who forced them by threats and scare tactics to commit robberies and murders. Considering the admittedly inadequate representation that Allen received at trial and the sources of much of the evidence against him, clearly the appropriateness of Allen's sentence is questionable. Furthermore, in a dissenting opinion, California Supreme Court Justice Broussard discusses the unconstitutional instruction of Allen's trial jury. According to Broussard's dissent, language used, particularly by the prosecution, to instruct the jury may have led them to believe that they had no option but to return a death sentence at the penalty phase of Allen's trial. The prosecutor told the jury that "if you conclude that aggravating evidence outweighs the mitigating evidence, you shall return a death sentence." According to previous court opinions the law does not require a death sentence in such a situation. Instead the jury is always expected to make a normative decision. According to Broussard "[s]hall, not may, not might, not maybe...is very explicit... [t]here is nothing equivocal in this language, and no freedom for the jury to make [a] normative decision." Clearly the jury instruction in Allen's penalty phase may have prejudiced his sentence. Allen's execution date is the day after his 76th birthday. 75-year-old Allen uses a wheelchair to get around. His advance case of diabetes has left him blind. Also, Allen suffered a heart attack on Sept. 2. Considering his age and health in addition to his inadequate trial representation and prejudiced jury, it is unacceptable for Clarence Ray Allen to be executed. (source: NCADP) ************************** Jailhouse rocking Recorded in front of a captive audience, At Folsom Prison is the album that made Johnny Cash. How did he end up playing behind bars? Over to Gene Beley 'We've been invited to go to Folsom Prison with Johnny Cash," Dan said. It was early January 1968. Dan Poush and I were a team, working for the Star-Free Press in Ventura, California. He was the photographer; I was the writer. "Who invited us?" I asked. "A minister I met at a New Year's Eve party." In that era such an invitation sounded dubious, especially when he added: "He's one of Cash's best friends." The Reverend Floyd Gressett, the pastor of the Avenue Community Church, in Ventura, called me a few days later. "John and June (Carter, his wife) are coming into town the day before the concert," he said. In those days, before the At Folsom Prison album changed his life, our newspaper tended to write negative stories about Cash, like the time neighbours complained about him playing loud Christmas music from the rooftop speakers on his house. Johnny Cash's Folsom Prison concert had its beginnings many years before. Gressett ministered to inmates in the California State Prison system. He had been visiting Earl C Green in the county jail. After Green was convicted, Gressett went to see him on death row at San Quentin, where he was scheduled for execution. "After 18 months on 'the row'," Gressett told me, "he received a reduced term to life imprisonment and was transferred to Folsom Prison. I continued to visit him at Folsom and he became the "Voice of Folsom Prison" on its radio station." Green was a country music fan who especially loved Johnny Cash's records. "One time when I visited Green," Gressett said, "he asked me what the possibility was of Johnny visiting the inmates." Gressett told him he would see what he could do. It took 2 years to schedule a day for the appearance. That 1st, unpublicised concert was held in November 1966. It was such a success that whenever Gressett visited the prison again, the inmates and officials asked when Cash could return. It occurred on January 13, 1968. As we stepped off the plane, she looked at the beautiful California weather and in her southern belle style, proclaimed: "It's a huckleberry-pickin day!" We arrived at the El Rancho Motel and checked in. While waiting for the others, we all met in one of our rooms. Gressett said he had a favour to ask of John. "Johnny, I want you to hear a song written by Glen Sherley, an inmate in Folsom, serving life for armed robbery. I thought if you could mention tomorrow that you've heard the tape, it would please that ol boy who wrote it." "Does anyone have a tape recorder?" Cash asked. "I do," I replied, and went to get the reel-to-reel Sony recorder that I had brought to record the concert for research purposes. "All right, this is a take on 'Greystone Chapel'" a deep voice, similar to Cash's own voice, said on the tape. Then the singing began: "Inside the walls of prison, my body may be, but the Lord has set my soul free..." As the lyrics filled the room, accompanied by a bass beat from the prisoners guitar, Cash's usual straight-faced, deep-creased cheeks began changing to a smile, with his eyes glowing, radiating enthusiasm. The next day we left the motel in black limousines and arrived at the California State Prison at Folsom just after 8 a.m. The huge gates of Folsom opened to allow us inside. A 2nd set had to be opened after the 1st was shut behind us. Once we were inside some of the prisoners hollered welcomes and praise as Cash walked across the yard's concrete path to a temporary dressing room. "How you doin'?" Cash asked individual prisoners. Just before 11 a.m., DJ Hugh Cherry from Los Angeles introduced Carl Perkins, who began warming up the crowd with hits such as "Blue Suede Shoes". Then the Statler Brothers sang. Finally, the one they were all waiting for came out, sat on his stool centre stage and said in that deep, godlike voice: "Hello... I'm Johnny Cash." Johnston was right. The applause was deafening. I was sitting in the audience with Cashs father, Ray, and looked around at the prisoners with some trepidation. I had never been in a prison before. Johnny started right in: "I hear the train a-comin', it's rollin' around the bend /And I ain't seen the sunshine since I dont know when.../ I'm stuck in Folsom Prison and time keeps draggin on..." A middle-aged black man in the audience, sitting close to the front rows, began to grin, showing his missing upper teeth. Another man, who looked like he might be a mechanic with a wife and 3 children in your own neighbourhood, stroked his thinning, red hair with his right hand and waved the other in the air as he whistled. That number finished, the prisoners cheered and screamed again. 2 guards in the wire cage high up over the stage looked nervous, staring out into the faces of a thousand convicts. Cash ran through songs including "Dark as a Dungeon", "I Still Miss Someone" and 19 others, backed by the Statler Brothers, the Tennessee Three and June Carter joining in on songs such as "Jackson". The highlight came when Cash announced he was going to sing Glen Sherley's "Greystone Chapel". Sherley jumped out of his front-row chair with a smile I will never forget. "I hope I do your song justice," Cash told Sherley. The prisoners roared, screaming and stomping their feet, while the guards on the catwalks clutched their rifles. We ate at the prison and returned for a second show. It was close to 10pm when it all ended with "The Orange Blossom Special", and sweat was rolling down Cash's face as he played the final notes on his harmonica. As we left the prison, June said: "You know why the prisoners like Johnny so much? They know he's been in trouble before and looks as mean as they do. They identify with him." When we got back to the motel in Sacramento, Johnston got a call from Chuck Gregory, Columbia's PR man. "How did it go?" "Wonderful!" Johnston replied. "It's going to be a great album." Carl Perkins added that it was an example of Cash's ingenuity: "He takes a $1.98 tape into Folsom Prison and comes out with an album." (source: The Statesman (India) - Originally published in the Virginia Quarterly Review, Winter 2005. Walk the Line opens on 3 February) OHIO----impending execution Do Not Execute John Spirko! Take action at www.democracyinaction.org/dia/organizations/ncadp/campaign.jsp?campaign_KEY=1734 John Spirko OHIO January 19, 2006 The state of Ohio is set to execute John Spirko, a 59-year-old Caucasian man, on Jan. 31, 2005 for the 1982 kidnapping and murder of Betty Mottinger in Van Wert County. Mottinger was the postmistress in Elgin, Ohio when she disappeared on Aug. 9, 1982. Her body was found several weeks later in a field; she had been stabbed multiple times. At the time of the crime, John Spirko had already developed a criminal record. He was incarcerated in Kentucky for murder in 1970. After his release in 1980, he was incarcerated again for parole violations and faced a longer sentence after an attempted escape from jail in October of 1982. Facing a potential transfer to Kentucky's penal system to continue his life sentence for which he had originally received parole, Spirko decided to take advantage of everything he had read about the Mottinger case. He knew that police were anxious to find the killer, and he thought he might be able to lessen his punishment by providing information, even if the information he would provide was false. In interviews with police, Spirko implicated a few men in the kidnapping and murder of Mottinger. Although all of the leads he provided to police turned out to be false, authorities were not able to locate one suspect, Delaney Gibson. Gibson and Spirko met in prison in Kentucky, and during the few months Spirko underwent interviews with police about the Mottinger murder, Gibson was hiding as a fugitive and was not questioned. When Gibson was eventually arrested in late 1982, police found that he had an alibi for the time period directly before the crime. He was in North Carolina, more than 500 miles away just hours before the crime was committed. Gibson admitted that he was friends with Spirko but denied any involvement in the murder of Mottinger. Gibson escaped from jail again before trial, but after a grand jury indicted both Spirko and Gibson. The case presented against John Spirko was fraught with evidence of prosecutorial misconduct. Nearly all of the evidence presented by the prosecution rested on the purported collaboration between Spirko and Delaney Gibson, his friend and so-called accomplice. One prosecution witness testified that she was "100 percent sure" that Gibson was at the post office on the day of the kidnapping. Another eyewitness, giving testimony under hypnosis, stated that he was about 70 % sure that Spirko was at the post office as well. The prosecution repeatedly stressed to the jury that Spirko and Gibson were close friends, probably hoping that this would sway jurors to believe that they would have been and were together at the post office on the day of Mottinger's disappearance. However, the prosecution did not present Gibson's alibi to the jury nor to the defense attorneys, something the prosecuting attorneys should have done under the law.During the appeals process, the Sixth Circuit Court argued that even though the prosecution withheld the information about Gibson's whereabouts prior to the crime, a reasonable jury would still have convicted Spirko based on his knowledge of nonpublic information. This is factually incorrect. The prosecution highlighted several facts that Spirko knew about the crime, including the number of times the victim was stabbed and the location of the wounds. Actually, this information was made public through newspaper articles prior to Spirko's comments about the crime to police. Only two pieces of information that Spirko supposedly provided have still been upheld as nonpublic. This case demonstrates the snags in our justice system. Eyewitness testimony is consistently unreliable. In this instance, the eyewitness who placed Gibson at the scene of the crime insisted that he was clean shaven although pictures of Gibson at times before and after the crime showed him having a full beard. Delaney Gibson was never charged for the murder of Mottinger. He was arrested several more times in the 1980s, yet Ohio prosecutors never sought to try him for the murder of Mottinger, even after they so ardently argued his involvement during Spirko's trial. Gibson was paroled in Kentucky in 1998. Finally, in 2004 charges were dropped against Gibson. Van Wert County Prosecutor Charles Kennedy acknowledged that it was a circumstantial case in the 1980s and that too much time had passed to try Gibson. In fact, there is no statute of limitations for murder. The state's unwillingness to try Gibson only adds to the argument that their case against him was weak at best. Without the state's confidence that Gibson was truly involved in the crime, how can it possibly defend the conviction of Spirko knowing that there was no forensic evidence linking Spirko to the crime, nor is there a written or recorded confession of his involvement? In an Amicus Curiae brief presented to the Supreme Court, four former prosecutors and judges note that the prosecutors urged the jury to look at the bits and pieces of evidence they presented in a sense of the "whole package." Over time, they note that the "whole cloth has unraveled down to the thread of 2 possibly nonpublic facts an investigator asserted John Spirko told him- and that investigator was demonstrably wrong in his assertion that the other facts were nonpublic." In the words of the brief's authors, "A man's life should not dangle by so thin a thread when there exists opportunity for further inquiry." The truth is, the state of Ohio should not be defending the conviction of John Spirko, and it most definitely should not uphold his execution date. Please write to Governor Taft in support of clemency. (source: NCADP) ******************* State execution rate declines in 2005 ---- But number of death sentences increases, against U.S. trend The number of executions and people on Ohio's death row shrank last year, but the state bucked a national trend with more death sentences. Ohio executed 4 killers last year, a drop from 7 in 2004 and far behind the nation-leading 19 in Texas. The number of killers on Ohio's death row - moved late in the year from the Mansfield Correctional Institution to the Ohio Penitentiary at Youngstown - dropped from 205 to 194 after peaking at 212 in 2003. The decline was partially attributed to a suicide, an overturned murder case and deaths from natural causes. Nationally, the number of inmates on death row dropped for the 5th straight year. At the same time, Ohio had seven death sentences handed down in 2005 - including Roland Davis, of Licking County. He was convicted of robbing and fatally stabbing Elizabeth Sheeler, an 86-year-old widow from Newark, in July 2000. 4 death sentences were meted out statewide in 2004. The Death Penalty Information Center in Washington reported that fewer than 100 death sentences were handed down nationally last year, a decrease from 125 in 2004 and the lowest number since capital punishment was reinstated in 1976. The number of death sentences averaged 300 annually in the 1990s, the center found. While the number of murders remained about the same nationally in recent years, juries increasingly have looked at other options. "The year 2005 may be remembered as the year that life without parole became an acceptable alternative to the death penalty in the U.S.," said Richard Dieter, executive director of the Death Penalty Information Center. "More states are adopting this alternative as deathpenalty problems persist." Ohio's 1st execution of 2006 might be further delayed, officials with Attorney General Jim Petro's office said. John G. Spirko Jr. is scheduled to die Jan. 19, once Gov. Bob Taft's reprieve expires. The state is doing DNA testing on several items connected with the 1982 slaying of Betty Jane Mottinger, a northwestern Ohio postmistress. However, another execution is likely to take place. Glenn Benner, 43, of Summit County, is to die Feb. 7 at the Southern Ohio Correctional Facility near Lucasville. He was convicted and sentenced to death for the 1985 kidnapping, rape and murder of 26-year-old Cynthia Sedgwick at Akron's Blossom Music Center. Benner, who has no legal appeals remaining, also was convicted of murdering Trina Bowser, 21, in January 1986. Joseph Wilhelm, chief counsel of the death penalty section for the Ohio Public Defender, said life without parole is having an impact. Between 1990 and 1995, there were 81 death sentences in Ohio, an average of 13.5 per year, Wilhelm said. After a law allowing the sentence of life without parole was adopted in 1996, the numbers shifted. Between 2000 and 2005, death sentences were cut nearly in 1/2 - a total of 42, or 7 per year. "The trend is a reduced number of death sentences," he said. "As some of the older cases wind their way through, there'll be occasional executions." Likewise, James V. Canepa, deputy chief attorney general for criminal justice, predicts a "steady, if not consistent, number of executions for a number of years to come. "Overall, systemwide, you could see a decrease." In both capital and other felony cases, advances in DNA testing are playing an increasingly important role. A non-death penalty case from Summit County - Clarence Elkins, who just before Christmas was cleared by DNA evidence of murdering his mother-in-law and raping his niece - gave Petro the platform he needed to push for renewal of an expired DNA testing law. The law, which expired in October, allowed inmates serving time for a felony with at least a year remaining on their sentence to request DNA testing. Canepa said Petro is seeking a legislative sponsor for a bill renewing the DNA law. While the attorney general is "quite confident" that death row convictions are sound, Canepa said noncapital matters such as the Elkins case aren't scrutinized and might need further examination. "It doesn't shake the confidence," Canepa said of Elkins' exoneration by DNA evidence. "What it does is underscore the need for a better understanding of DNA science at the county level and state level." (source: Columbus Dispatch)
