Jan. 5 MISSISSIPPI: Miss. high court upholds death sentence in George Co. case The Mississippi Supreme Court has rejected arguments from a death row inmate that his appearance in a George County courtroom in shackles tainted prospective jurors and required he get a new trial. The justices, however, sided with the trial judge who determined that any glimpse that prospective jurors got of Fred Sanford Spicer Jr. was accidental and did not prejudice the case. Spicer was convicted of capital murder and sentenced to death in 2003. The Mississippi Supreme Court on Thursday upheld his conviction and sentence. Defense attorneys argued the U.S. Supreme Court last year found it is unconstitutional to force capital murder defendants to appear before juries in shackles during the penalty phase of trial. That decision came in a Missouri case. The nation's high court said shackling almost always implies that authorities consider the offender a danger to the community, a factor juries weigh in considering a sentence, Spicer had argued on appeal. Spicer was arrested in 2001 after he was stopped in Pascagoula while driving a vehicle registered to a man found dead at his home. Authorities said a deputy discovered the body of Edmond Herbert, 42, also of George County, when he went to the man's house to ask why Spicer had his vehicle. The two men lived together, according to prosecutors. Prosecutors said Spicer killed Herbert by striking him in the head with a sword while Herbert was sleeping. Spicer argued in his appeal that he was brought into the courtroom in civilian clothes and with leg, arm and waist restraints. When the defense complained, the trial judge concluded the incident was unintentional and those in the courtroom got only a fleeting glimpse of the restraints, prosecutors said. Critics of restraints contend that prosecutors try to misuse them to scare juries into sentencing people to death. Supporters contend that defendants can be dangerous - especially if they already know they're facing at a minimum life behind bars. Mississippi Presiding Justice Kay Cobb, writing Thursday for the court, said Spicer failed to prove that any short glimpse of him in shackles turned the jury against him. Cobb said the U.S. Supreme Court clearly said that "being shackled during an entire proceeding, as opposed to being briefly and inadvertently seen entering the courtroom in shackles, is what the Constitution forbids." "In the present case, potential jurors possibly observed Spicer shackled in his brief walk of approximately 6 feet, from the back entrance of the courtroom to the witness room. That would not require a mistrial," Cobb wrote. (source: Associated Press) ILLINOIS: 2 lawyers cast in unlikely role as crusaders You may have seen the stories last month about intriguing new allegations in a famous old Illinois death-penalty case: Alstory Simon, who confessed on videotape to having killed two people in 1982, a crime for which Anthony Porter was then sentenced to die, is now claiming that he's innocent, that his confession and subsequent guilty plea were bogus. It was intriguing because Porter's case was the most galvanizing among the raft of wrongful convictions that led to death-penalty reform in the state. Porter had won a reprieve just 50 hours and 22 minutes from a scheduled lethal injection, and then-Gov. George Ryan referred to him by name when announcing the moratorium on executions that is still in place. It was intriguing also because Simon's claims of innocence directly attacked the integrity of two men who have been famously active in investigating and publicizing cases of wrongful conviction: Northwestern University journalism professor David Protess and private investigator Paul Ciolino, who cracked the Porter case. And they indirectly attacked Ryan and all the lawyers, activists and journalists, including me, who frequently cite the Porter case as an example of the death penalty's fatal flaw. What you didn't see in these stories, however, was also intriguing. The volunteer lawyers who now represent Alstory Simon are not exactly typical crusaders against the system. One of them, James Sotos, virtually personifies the system. For most of his career, Sotos, 48, has specialized in representing cities, counties and law enforcement officials in cases where citizens file suit alleging violations of their civil rights--beatings, coerced confessions and that sort of thing. Sotos is the attorney for Jon Burge, the former Chicago police commander who was fired for torturing a murder suspect and is named in numerous other police-torture claims. Sotos was the attorney who appeared on behalf of DuPage County before the Illinois Prisoner Review Board to call Rolando Cruz a "con man" when Cruz sought a full pardon for his overturned capital conviction in the 1983 murder of Jeanine Nicarico. Sotos was the attorney who appeared on behalf of McHenry County before the Prisoner Review Board to belittle Gary Gauger's claims of innocence when Gauger sought a full pardon for his overturned capital conviction in the 1993 slaying of his parents. Both Cruz and Gauger ultimately received full pardons, and both had been convicted based on alleged confessions 10 times more dubious than the confessions of Alstory Simon. Simon's other lawyer, Terry Ekl, is a former prosecutor with close ties to the DuPage County establishment. Ekl, 57, does mostly defense work but once served as Republican State's Atty. Joe Birkett's campaign manager, and he successfully defended former prosecutor Thomas Knight in the "DuPage 7" trial of officials charged with conspiring to railroad Cruz. Simon's claim is that Protess and Ciolino variously deceived and threatened him and the witnesses who implicated him in 1999. These wiles prompted Simon to confess several times, to plead guilty in court and to apologize to the mother of one of the victims. Protess and Ciolino deny any wrongdoing. Ekl and Sotos told me they believe Simon. They told me that they didn't take his case in an effort to discredit those in the justice movement with whom they have so frequently clashed, nor did they seek him out. Ekl said Simon's fellow inmates at Danville Correctional Center, where he is serving 37 years, happened to have Ekl's address. Simon wrote to explain his plight and Ekl was intrigued. When the city of Chicago filed a strategic civil suit against Simon as part of its defense against Anthony Porter's (recently failed) wrongful arrest suit, Ekl asked Sotos, "an excellent civil attorney," he said, to join the case. Their 34-page post-conviction petition seeks a full evidentiary hearing on Simon's claims, the sort of request you see all the time from attorneys who devote themselves to exposing wrongful convictions. Ekl and Sotos assure me they are completely sincere in their desire to free a man they feel is innocent. And in turn, I assure them that I'll believe them when they make a habit out of it. (source: Chicago Tribune) LOUISIANA: Data on DeLouche goes to defense Information on any sexually deviant behavior by former Deputy Sheriff Donald "Lucky" DeLouche could affect how jurors assess his credibility, Judge Wilford Carter said Wednesday. Carter ordered attorneys in DeLouche's domestic court cases to turn over certain information to lawyers representing capital murder defendant Ricky Joseph Langley. DeLouche, a former homicide investigator with the Calcasieu Parish Sheriff's Office, recorded a confession from Langley and is the state's chief witness against the defendant. Langley is scheduled to be retried this year for the third time on allegations he killed and possibly sodomized a 6-year-old Iowa boy in February 1992. Since Langley's 1st 2 trials, allegations have surfaced about DeLouche and errant sexual behavior. DeLouche, a longtime sheriff's detective and former head of a now-defunct crime task force, left his post as Jennings police chief amid accusations of video voyeurism and sexual harassment. No charges were ever filed. References to possible errant sexual behavior were apparently made in 2 of three divorce cases against DeLouche. Christine Lehmann, one of Langley's lawyers, argued Wednesday that such evidence could be relevant to how Langley's jurors assess DeLouche. Carter agreed and ordered attorneys in the domestic cases to turn over any information on DeLouche's possible sexually deviant behavior. The information is to be sealed, and it will not be disclosed to the public, he said. Carter disagreed with Lehmann's claims that the evidence could be relevant to her contention that DeLouche extracted a false confession from Langley. The interrogation sessions during which Langley reportedly confessed were all videotaped, and anything improper would have been recorded, Carter said. But Lehmann said parts of the conversations between the two were not taped. Never during the 1st 2 trials did defense attorneys claim that Langley had given a false confession, said Assistant District Attorney Wayne Frey. The claim is another attempt by the defense to "trash Lucky DeLouche," he said. Carter ordered attorneys to provide Lehmann with the information on DeLouche, but he made it clear his ruling didn't mean he would allow the defense team to present the evidence to Langley's jurors. Carter scheduled a Feb. 22 hearing to make that determination. But the entire matter may be moot depending on rulings from higher courts on whether Langley is again subject to a death sentence, he said. Last October, Carter ruled Langley cannot face capital punishment in his 3rd trial, and he banned prosecutors from seeking a death penalty in the case. Frey said oral arguments on the issue are set to be heard next month by the 3rd Circuit Court of Appeal. If Carter's decision is upheld, Langley will face only a charge of 2nd-degree murder - altering the prosecution of his case. Prosecutors claim that since the 3rd Circuit declared Langley's second trial null and void, they can retry Langley on first-degree murder and again seek a death sentence. But Carter said the actions of the jury in that second case could not be ignored. Jurors obviously considered the option of convicting Langley on the original charge, but they thought the state had not proved its case beyond a reasonable doubt, he said. He considered that action an acquittal on the capital charge. Jurors then considered the lesser offense of 2nd-degree murder. They convicted Langley of that charge, which carries a mandatory penalty of life in prison without parole. Defense attorneys decided to appeal the conviction. That is when the 3d Circuit Court nullified the proceedings, saying the behavior of presiding Judge Al Gray deprived Langley of a fair trial. Prosecutors viewed the ruling as an opportunity to retry Langley on a charge of 1st-degree murder and again seek a death sentence. But Carter, to whom the case was assigned after Gray removed himself, said that to allow the state to retry Langley on a capital murder charge would punish the defendant for exercising his right to appeal. Carter theorized that defense attorneys chose to appeal in hopes that, if a new trial were granted, they could again seek an insanity verdict. But prosecutors saw the retrial order as another opportunity to push for a death sentence, which they were deprived of during Langley's 2nd trial, Carter said. (source: Lake Charles American Press) NEW JERSEY: Turmoil over death penalty Gary Marsh was an honors graduate at Rider University. Looking to complete aviation training, he took a part-time job at a Lawrence gas station in May 1992. It was the last job he would work. He was murdered, shot in the head less than a week after starting. "Our thoughts about Gary are on a daily basis," his father, Gunnar Marsh said from his Missouri home yesterday. "He's so greatly missed. It was such a senseless killing of a really wonderful young man." While the Marshes think about their son every day, they worry that state lawmakers haven't considered him at all. The Assembly Judiciary Committee is scheduled today to consider Senate-approved legislation that would create a special commission to study the death penalty and impose an execution moratorium. If approved by the committee, the proposal is slated to receive a full Assembly vote Monday and, if approved, be quickly signed into law by acting Gov. Richard J. Codey. Though supporters claim otherwise, critics contend the legislation is a veiled bid to abolish the state's death penalty. The Marshes vow to fight any such plan. As his wife Joyce cried, Gunnar Marsh recalled the man who was convicted of murdering his son. Donald Loftin is among the 10 men on New Jersey's death row. Not only was the Bristol Township, Pa., man convicted of murdering Gary Marsh, he also was convicted of killing a chambermaid at an Atlantic City casino. Gary Marsh was shot in the head at a Lawrence Exxon station at Texas Avenue and Business Route 1 where he was the night manager. His wallet was stolen during the murder but police found no signs of a struggle. "He just assassinated Gary, executed him," Gunnar Marsh said. "He's a bad, evil person and he deserves to die, no question about it." -- -- -- As the moratorium proposal has moved through the Legislature since the November election, the families of victims have yet to be heard. And Joyce Marsh was furious no one had contacted her family to tell them of the advancing bill. But Assembly Majority Leader Joseph J. Roberts Jr., D-Camden, who recently became a prime sponsor of the Assembly bill, said it isn't designed to abolish the death penalty. He scoffed at critics, such as Sen. Gerald Cardinale, R-Demarest, who claim otherwise. "It is my view that support of a death penalty study commission does not necessarily mean that members of the Legislature are opposed to the death penalty," Roberts said. He noted the state hasn't executed anyone since 1963, though capital punishment was reinstated in 1982. Meanwhile, he said, other states have discovered problems with the death penalty, DNA evidence has become vital and questions have been raised about whether the death penalty is biased when it comes to race and economic status. "We have an obligation to do this right, to make sure justice is properly administered," Roberts said. While no one has mentioned Gary Marsh, nearly every death penalty discussion mentions Megan Kanka, the 7-year-old Hamilton girl killed in 1994 by released sex offender Jesse Timmendequas. Cardinale, a leading bill opponent, cited the Kanka case on the Senate floor Dec. 15. "I believe that the majority of citizens in this state would want a Robert `Mudman' Simon, who killed his girlfriend for disobeying his orders, and then killed a cop upon his release from prison for that crime, or a Jesse Timmendequas, who sexually assaulted and murdered Megan Kanka, or an Ambrose Harris, who kidnapped, raped and murdered a young artist (Kristin Huggins) just a couple of hundred yards from here, to receive justice sooner rather than later," Cardinale said. Megan's father, Richard Kanka, said he's followed the moratorium legislation, but the family is more focused on protecting children than the death penalty. "If they put a moratorium on it and then eliminate it, well, so be it," Kanka said. "I don't think there's anything we're going to be able to do. They're going to do what they're going to do anyway." That doesn't mean Kanka doesn't have concerns. "I just don't want this guy to get out of jail ever again," Kanka said of Timmendequas. "If he's on death row, he's never going to get out. If he's not on death row, that's always a possibility." He said the state, if it is going to study the death penalty, should consider requiring DNA testing and asking voters through a ballot referendum whether capital punishment should be legal. "In the back of my mind, I think they're doing the wrong thing," Kanka said. The commission would study whether the state death penalty is applied fairly, its costs, whether it is a deterrent and if it should be abolished. The commission would complete its work by Nov. 15, with a moratorium imposed on executions until at least 60 days after it finishes. The bill, without the moratorium proposal, passed both houses in 2003, but was vetoed by then-Gov. James E. McGreevey. Codey supports it. The bill must be approved by noon Tuesday or it expires and any effort to make it law must start anew. It was approved 30-6 by the Senate in mid-December. After the Senate vote, Sen. Shirley Turner, D-Lawrence, cited polls that indicate most New Jerseyans support life without parole over the death penalty. She also mentioned the lack of a state execution since 1963. "It seems like the death penalty is not a good fit for our state," Turner said. "This commission will help take the anecdotal evidence and boil it down to real facts that can help us make an informed decision." -- -- -- For the Marshes, who lived in Chatham but now live in Wentzville, Mo., no decision need be made. "We have to make them understand," Joyce Marsh said, her voice cracking. "This man (Loftin) deserves to die." Gunnar Marsh said no one questions Loftin's guilt. He was arrested a week after the murder when he tried to use Gary Marsh's credit card at the Oxford Valley Mall. "We believe in the death penalty, and I certainly believe this man is in the right place and the penalty should be carried out," Gunnar Marsh said. But others are hopeful the bill will, indeed, lead to abolishing the death penalty. The Catholic Bishops of New Jersey, among others, don't want to see the death penalty imposed. "We are guided by our belief that every person has an inalienable right to life because each human being is made in the image and likeness of God, who alone is the absolute Lord of life from its beginning until its end," the group said in statement released by the New Jersey Catholic Conference. The 13-member commission, if approved, will have to include at least one member of a victim's family organization. "One has to have empathy and understanding for the families who have lost a loved one to murder and other violent crime, but we have an obligation to look at this issue thoroughly," Roberts said. NOTE: Contact State House bureau chief Tom Hester Jr. at [email protected] or at (609) 777-4464. (source: Trenton Times) *************** Study the death penalty New Jersey should abolish the death penalty. The Legislature is unwilling to go that far at this time, but a proposal to hold off any executions until a commission studies the death penalty is a step in the right direction. The state Senate has passed a bill calling for the study commission. An Assembly committee is expected to consider the measure today. And acting Governor Codey has said he would sign it. Good. Thorough examination of capital punishment in New Jersey might force a resolution of this issue that for years has hung in limbo. We hope it would lead to replacing the death penalty with life imprisonment without parole. Since New Jersey reinstated executions in 1982, it has sentenced 60 people to death. But most have had their sentences reduced on appeal to life in prison so that now only 10 are on death row. And because of court appeals, no one has been killed. That infuriates death penalty supporters, who want the state to limit appeals and hasten executions. But the "kill 'em and do it quick" mindset is, thankfully, on the wane. A poll last year by the Bloustein Center for Survey Research at Rutgers found that nearly 1/2 of state residents, 47 %, prefer that murderers get life in prison without parole as compared to 34 % who want the death penalty. That's a reversal from 1999 when 44 % favored the death penalty and 37 % life imprisonment. The proposed commission would need to consider such attitudes in studying "whether the death penalty is consistent with evolving standards of decency," as the bill calls for. Public wariness about executions has increased in recent years as a wave of death row inmates around the country has been exonerated by DNA evidence or other proof of innocence. More and more people just aren't comfortable with the possibility of killing an innocent person. State Supreme Court Justice Virginia Long got it right when she wrote in a 2002 opinion that public attitudes about the death penalty have changed so much since New Jersey reinstated it that it's time for the Legislature to revisit the law. As for the argument that capital punishment serves as a deterrent to criminals, there's not enough evidence of that. An Emory Law School professor wrote in an Op-Ed piece here a few weeks ago that executions appear to serve as a deterrent only in states such as Texas that kill a whole lot of people. In most states, capital punishment shows no deterrent effect and might even increase the murder rate by creating a climate of brutal violence. So there are no good reasons to keep the death penalty and many reasons to abolish it. Perhaps the most important are that it is immoral and uncivilized. A study commission, we hope, would reach a similar conclusion. (source: Editorial, Bergen Record)
