Jan. 12 MARYLAND: Glendening Urges Return to Death Penalty Moratorium Former Governor Parris Glendening says Maryland should bring back his death penalty moratorium. And he says he's disappointed that Governor Robert Ehrlich and state lawmakers haven't addressed the disparities in the state's use of capital punishment that were found in a University of Maryland study that Glendening commissioned. Glendening says the state should halt executions until it can guarantee that discrimination is not a factor and until there is no doubt about a convicted killer's guilt. A Baltimore County judge signed a death warrant Monday for Vernon Evans and scheduled his execution for next month. Evans was found guilty of the 1983 contract killings of 2 Pikesville motel clerks. (source: Associated Press) NORTH CAROLINA: Charges in death penalty protest tossed Wake County prosecutors have dismissed trespassing charges against 17 protesters at Central Prison in Raleigh on the eve of the nation's 1,000th execution since the death penalty was reinstated in 1977. The protesters walked toward the front door of the prison before the execution of Kenneth Lee Boyd on Dec. 2 by lethal injection. Protesters are restricted to the sidewalk in front of the prison. Officials dismissed the charges because prosecuting them would be a poor use of limited court resources. (source: The Charlotte Observer) DELAWARE: Capano death penalty overturned----Delaware Supreme Court ruling could lead to life in prison; victim's family will have say in whether to relive penalty phase U.S. Attorney Colm F. Connolly spent three years on the case. "I certainly understand the reasoning of the Delaware Supreme Court and respect it," he said. CASE HISTORY Thomas J. Capano, part of a wealthy Delaware family, was convicted of killing Anne Marie Fahey and sentenced to death in 1999. Fahey, who was scheduling secretary to then-Gov. Tom Carper, had been romantically involved with Capano but was trying to break off the relationship. Her body was never found. The case received national attention and was the subject of books, documentaries and a television movie. WHAT HAPPENED WEDNESDAY The Delaware Supreme Court announced it overturned the death sentence, saying it was flawed under the Delaware Constitution based on a 2002 decision by the U.S. Supreme Court (Ring v. Arizona). To invoke the death penalty, the jury should have voted unanimously that the murder was the result of premeditation and substantial planning. The jury voted 11-1. WHAT'S NEXT The state now has several options. State Attorney General Carl C. Danberg could decide to seek the death penalty a second time with a new penalty hearing. Or the state could decide to ask Superior Court to sentence Capano to life in prison. Thomas J. Capano, a wealthy and politically powerful Wilmington lawyer before he was found guilty of the 1996 murder of his lover, has won a reprieve from the death penalty from the Delaware Supreme Court. Prosecutors said they will meet with the family of murder victim Anne Marie Fahey to decide whether to again seek the death penalty by retrying the penalty phase of the case. If they do not retry the case, Capano will receive life in prison without possibility of parole. In an opinion made public Wednesday, the Supreme Court decided that Capano's death sentence was flawed under the Delaware Constitution based on a 2002 decision by the U.S. Supreme Court. The crux of the state's ruling was that, to invoke the death penalty, the jury should have voted unanimously that Fahey's murder was the result of premeditation and substantial planning. The jury only voted 11-1 in Capano's penalty hearing. News that Capano's death penalty had been overturned caught many people by surprise. The case was one of the most lurid in Delaware history and became the subject of several books and television programs. Capano, who is part of a wealthy real estate development family, was arrested and accused of Fahey's murder in November 1997, more than a year after she disappeared. Fahey, who was scheduling secretary to former Gov. Tom Carper, had been romantically involved with Capano but was attempting to break off the relationship. Her body was never found. Capano's brother, Gerard "Gerry" Capano, testified that he and Thomas dumped her body from an ice chest on Gerard's boat into the ocean off the New Jersey coast. U.S. Attorney Colm F. Connolly, who spent three years on Capano's case, said he was disappointed but "had no qualms with the basis of the decision." "I certainly understand the reasoning of the Delaware Supreme Court and respect it," he said. Joseph M. Bernstein, the Wilmington lawyer representing Capano in the appeal, said, "Anytime you get somebody off death row, it's a victory." Going forward, the state now has several options. State Attorney General Carl C. Danberg could decide to seek the death penalty a second time with a new penalty hearing. Or the state could decide to ask Superior Court to sentence Capano to life in prison. Bernstein said he was disappointed that the top state court did not agree with his argument that Capano could not be subjected to a new penalty hearing. "The best he can do is a new life sentence," Bernstein said. "The ball's in the state's court." Bernstein also had sought to overturn Capano's conviction, but the court rejected that appeal. State Prosecutor Steven P. Wood said the state plans to study the opinion, reflect on it and then discuss the matter with the victim's family before deciding "the best way forward." Fahey's sister, Kathleen Fahey-Hosey, said in October that she would rather see Capano get life in prison than have to go through a new penalty hearing, which would force her to relive her sister's death. But on Wednesday, Fahey-Hosey said she would not comment on this until she and her family discussed the issue. Lawyers said another death penalty hearing would be like the first jury trial, with testimony from witnesses in the sensational six months of proceedings held from October 1998 to March 1999. Capano's guilt or innocence would not be at issue, only whether he should be put to death. "They would have to put on their whole case again in order to prove premeditation and substantial planning," said Eugene J. Maurer Jr., a Wilmington criminal defense lawyer who was one of Capano's attorneys for the 1st trial. Charles M. Oberly III, a Wilmington lawyer who represented Capano through the trial and was attorney general from 1983 to 1995, said he believes that the wishes of the Fahey family will weigh very heavily on the decision to go through another penalty hearing. Oberly said money would not be an issue for the Attorney General's Office. Lawyers close to the defense said the cost to defend Capano at the first trial was about $1 million. "The burden of the trial falls on the innocent victims, their families and even the family of the perpetrator. The lack of finality, it's debilitating. They've gone through it, and now they've got to face it again," Oberly said. Janice Fitzsimons, public information officer with the Delaware Attorney General's Office, said there is no timetable on the decision at this point. "It's a bump in the road, but in any death sentence case there is a lot of legality involved," Fitzsimons said. Despite the first victory in a Delaware court, Capano's legal team and family members were not jubilant. Bernstein said he told Capano, who has been incarcerated at the Delaware Correctional Center near Smyrna since 1999, of the court's decision Wednesday morning. He declined to characterize Capano's reaction, but indicated Capano and his legal team had felt optimistic the court would reverse the death sentence based on a federal ruling. Lee Ramunno, a Wilmington attorney and Capano's brother-in-law, said he was pleased the death penalty was vacated "since I do not believe that it was justified in the 1st place." "But I believe the Supreme Court should simply have imposed life imprisonment rather than require a new hearing, which will be traumatic to everybody concerned," Ramunno said. "Hopefully, the state will decide not to seek the death penalty and allow him to spend the rest of his life in prison. If they choose to pursue a penalty hearing, hopefully the jury will not impose the death penalty." In the federal case, Ring v. Arizona, the U.S. Supreme Court ruled that an aggravating circumstance under any state law -- such as substantial planning or killing a witness -- has to be found by a jury to impose the death penalty. In Capano's 1st appeal in 2000, the Delaware Supreme Court affirmed Capano's death sentence, rejecting his argument that the jury vote in the penalty phase must be unanimous. But after Ring v. Arizona in 2002, the U.S. Supreme Court changed the rules for the first time. It ruled that defendants do have a constitutional right to have a jury determine beyond a reasonable doubt whether a statutory aggravating circumstance exists, Wood said. Delaware Supreme Court was obliged to reinterpret the case in light of Ring v. Arizona, he said. "In this appeal, the Delaware Supreme Court is obligated to follow that rule," Wood said. The court ruled unanimously that Capano's death sentence was unconstitutional. But the justices were divided over the issue of whether Capano could be subjected to a 2nd penalty hearing. Two of the judges, Chief Justice Myron T. Steele and Vice Chancellor John W. Noble, dissented from the majority opinion. Noble, who is a judge in Delaware's Chancery Court, sat in for Justice Carolyn Berger, who recused herself from the case. Steele and Noble concluded that a life sentence "must be imposed." There is precedent in Delaware for holding a second penalty hearing in a murder case. Last year, a jury was selected to sit on a penalty hearing of two men convicted and sentenced to death nearly 10 years before. The death penalty in that case also had been overturned. The new jury agreed with the original jury and voted that Michael Manley and David Stevenson should be sentenced to death for the 1995 execution-style murder of Kristopher Heath. Heath, a Macy's security guard, was about to testify against Stevenson in a theft case. But the Capano case is far from over. The ruling could be appealed by either side to the U.S. Supreme Court. Capano's attorneys could argue that the Delaware Supreme Court erred by not giving him an automatic life in prison sentence, and prosecutors can argue that the court misinterpreted Ring v. Arizona by giving him a new penalty hearing. Bernstein said Wednesday he will ask for a new trial in U.S. District Court in Delaware on separate grounds. Now that the appeals process has been exhausted in the state court, he has three weeks to file the appeal. Bernstein said he will claim that the jury was not given options concerning a lesser offense, such as 2nd-degree murder or manslaughter, that can carry less prison time. Jules Epstein, associate professor at Widener University School of Law, said the federal appeal is a much higher standard. If the state were to proceed with a new penalty hearing, it could conflict with the federal appeal. Either the federal or state actions could be stayed. Wilmington defense attorney Joseph A. Gabay, who represented Manley along with Bernstein, said Capano's case could take a long time to play out. "There's still a lot of fight left in this dog before it goes to trial," Gabay said. (source: News Journal) CALIFORNIA----impending execution Double life of a death row killer -- Charismatic multiple murderer Clarence Ray Allen, 75, didn't turn really bad until his 40s By any measure, condemned inmate Clarence Ray Allen has lived a double life, confounding the people who have known him as a kind man and those who have experienced his cruelty. The former warehouse manager served as a church deacon, raised 2 boys and became a successful business owner in Fresno. But in his 40s, he embarked on a violent crime spree with a gang of misfits. One thing led to another, including murder -- and then, 3 additional murders. Allen is scheduled to die by lethal injection at 12:01 a.m. Tuesday at San Quentin State Prison, one day after his 76th birthday. If executed, he will be among the oldest prisoners ever put to death in the United States. Police, prosecutors, judges and the families of Allen's victims describe him as a criminal mastermind, a vicious, unrepentant killer who relied on others to do his dirty work. He was convicted of orchestrating a triple homicide in 1980 at a Fresno market from his cell at Folsom Prison, where he was already serving a life sentence for murder. One of the people Allen ordered killed had testified against him in a previous trial. Allen's friends and family say he's a sentimental, kind-hearted soul who provided shelter and jobs to those in need, donated uniforms to the Little League and supported 4-H Club youth activities. They say that before Allen was imprisoned in 1977, he was a considerate boss, a devoted father and someone who picked up restaurant tabs and purchased furniture sets for his friends. >From his early days, however, there was another thread to Allen -- one that showed itself in acts of petty thievery as a young adult and grew into something darker in middle age. "He presented himself as a typical, successful businessman, but on the side he had a group of young people who were doing robberies," said Jerry Jones, a former chief deputy district attorney for Fresno County who prosecuted two of Allen's accomplices. "He was kind of a charismatic fellow, bright enough that he was able to walk between both of these worlds," Jones said. "He was a controlling guy, a scary guy. ... They did as he told them." Ray Allen, as he was known to his family, was born at home in January 1930 in Blair, Okla., the youngest of five children. The family, with ancestral roots to the Choctow tribe, lived a marginal existence off the land. Allen began picking cotton when he was 11 or 12, then moved with his family in the early 1940s to south Texas, where he finished his schooling in the seventh or eighth grade, before resettling in the San Joaquin Valley. At 17, Allen married Helen Sevier, whom he had met a year earlier while working in the fields. She recalled at a 1997 court hearing that, even though picking cotton was "good money," he would steal from other laborers' cars. While saving to buy a house, the young couple lived in what Sevier described as "a little chicken coop" near Pixley (Tulare County). They had two boys, and Sevier testified that Allen was a responsible husband and parent. She said he had been "saved" and "was called to preach" at a church. He didn't smoke or drink, and he urged others to attend services. In the mid-1950s, Allen began working for Sunland Olive Co. He rose to warehouse manager but in 1962 was convicted of conspiring with several employees to steal olives. Sunland officials estimated that the ring stole as many as 3,000 cases of olives and sold them to vegetable stands in the Central Valley. Allen was jailed for a year on the county honor farm. After his release, the Allens divorced, and Ray Allen took custody of the couple's two sons. The youngest, Roger, recalled how his father worked in the late 1960s at a steel plant in Fresno County during the day and as a security guard at night. Allen used his guard's keys to a Fresno country club to sneak into the kitchen with his son and eat, Roger Allen said. Allen started his own security firm in 1968, and the business soon prospered as ranchers struggling with the United Farm Workers union hired the outfit to guard their operations. At its height, the firm employed 60 workers and owned 2 planes. Allen had his own plane, a ranch and show horses, including an Appaloosa mare that he purchased for his second wife, Darlene. His friends from those days said they couldn't reconcile the Allen they knew with the man who later would put out contracts for murders. Chris Sund recalled at the 1997 court hearing how she and her husband, Richard, had befriended Allen through horse shows. She said Allen "wrote poetry about everything," including a poem commemorating the Sunds' 40th wedding anniversary, which Allen printed in calligraphy and framed as a gift for them. Sund also said that when her husband was ill and needed donations of blood, Allen "was the first one there." Connie Seidel testified that her husband, Larry Turner, had worked as a security guard for several years for Allen's company. Allen hosted barbecues for the families of his employees, loaned her husband money and paid for their child's day care so Seidel could work for the security firm as a receptionist, she said. Seidel said her boss "always made sure the families had proper time together." One of Allen's 5 grandchildren, Paula Allen of Fresno, said Wednesday that "he never forgot holidays. He was always there at my soccer games. Here I am, 36 years old, and he's never forgotten my birthday." No one has explained what prompted Allen's transformation from successful business owner and family man to the vengeful leader of a criminal gang. The "typical pattern is for somebody to be involved in violent activity in their youth, and then, as they get older, for this pattern to abate," said Dr. Craig Haney, a social psychologist who testified at Allen's evidentiary hearing in 1997. "In Mr. Allen's case, it's turned on its head." Authorities eventually linked Allen to eight armed robberies of homes or businesses from 1974 to 1977 in the Central Valley. He used the same security firm he had built up as a legitimate business to gather information for accomplices to carry out at least two of the heists, prosecutors said. To those accomplices, Allen bragged that he was a Mafia hit man who had blown 2 people in half with a shotgun in Nevada, prosecutors said. In the early 1970s, he posed for a photo in dark sunglasses while holding an automatic weapon. "He styled himself as sort of this romantic criminal figure. ... He was just a criminal," said Jim Ardaiz, who prosecuted Allen in the 1970s and now is a state appellate judge. "He had a gang of hangers-on," Ardaiz said. "They were followers. They were easily manipulated petty criminals. He terrified the people around him. ... They were scared to death of the man." Allen didn't just write poetry for wedding anniversaries. One he worked up in 1977 began: "Ray and his sons are known as the Allen Gang/ Sometimes you have often read/ how we rob and steal/ and for those who squeal/ are usually found dying or dead." Allen's journey to death row began in June 1974, when he decided to burglarize a grocery store east of Fresno called Fran's Market. He had known the owners, Ray and Frances Schletewitz , for more than a decade. Using an alarm key lifted from the pocket of the Schletewitzes' son Bryon during a pool party, Allen and 2 employees in his security guard firm broke into the market late at night and removed a safe containing $500 in cash and $10,000 in money orders. Roger Allen and four others cashed the stolen money orders in Southern California. One of the accomplices, 17-year-old Mary Sue Kitts, was Roger Allen's live-in girlfriend. Kitts had misgivings about the burglary and told the younger Schletewitz what had happened. When Allen found out, he ordered his associate Lee Furrow to kill her -- and told Furrow that unless he complied, he would be killed as well, prosecutors said. Kitts was strangled and dumped into the Friant-Kern Canal, Allen later admitted to police. Her body, weighted down with stepping stones, was never recovered. Allen was arrested in March 1977 when a robbery at the Visalia Kmart store went awry, resulting in the shooting of an employee. Authorities eventually linked him to the 1974 killing, and Allen was convicted and sentenced to life in prison. Furrow pleaded guilty to 2nd-degree murder. Allen's imprisonment did not stop him from seeking revenge. At age 50, prosecutors say, Allen hatched a plan to silence the witnesses who had testified against him -- to retaliate against them and prevent their testimony at a retrial if he won his appeal. Allen recruited Billy Ray Hamilton, a soon-to-be paroled fellow inmate at Folsom. On the evening of Sept. 5, 1980, just before closing time, Hamilton and his girlfriend Connie Barbo entered Fran's Market. The 2 drew their weapons and herded the employees to the back of the store, where Hamilton methodically killed Bryon Schletewitz, 27, Josephine Rocha, 17, and Douglas White, 18, with a sawed-off shotgun. Schletewitz had testified against Allen; the 2 teenagers were store employees who had nothing to do with the earlier case. Rocha, a high school senior, had hoped to become a teacher and raise a family. Schletewitz was known as a witty, good-natured boss. White, a former member of the Clovis High School choir, was attending community college and planned to study architecture and law. Hamilton also fired a shot from just 3 feet away at teenager Joe Rios, who had hidden in a rest room. Rios managed to raise his arm and take the blast in his elbow. He survived and later identified Hamilton and Barbo. "It was a horrible crime scene," said Ardaiz, who was among the 1st law enforcement officials called to Fran's Market. "As a prosecutor, I've probably been to over 100 murder scenes. Three young people had just been executed at close range with a shotgun. ... There was a lot of blood, pools of blood. "These were just kids. All the officers at the scene were very shaken." Hamilton was arrested days later when he tried to rob a liquor store in Modesto. Police said he was carrying a hit list of people who had testified against Allen at the Kitts trial, including Schletewitz. Hamilton was convicted and sentenced to death; Barbo was sentenced to life in prison. Allen was charged with 3 counts of murder and with conspiring to kill 7 witnesses. His eldest son, Kenneth, who supplied the weapons and transportation for Hamilton and Barbo, testified against him in exchange for a sentence of life without parole. Ray Allen was convicted and sentenced to death. Allen has spent 23 years on Death Row and has outlived 3 previous execution dates. In recent years, however, his health has deteriorated. He cannot walk and uses a wheelchair. An advanced case of diabetes has left him legally blind. He is hard of hearing and frail of voice and suffered a heart attack Sept. 2. On the prison yard, he wears sunglasses bequeathed to him by condemned inmate Stephen Wayne Anderson, who was executed in 2002. The dark lenses "protect his almost sightless eyes from the light," Allen's lawyer, Michael Satris, wrote in a petition to Gov. Arnold Schwarzenegger seeking clemency. Retired Justice Joseph Grodin, who wrote the state Supreme Court's 1986 opinion that affirmed Allen's death sentence, asked Schwarzenegger in a Dec. 23 letter to spare the prisoner's life. The governor is still considering the request. Grodin said Allen's declining health appears to have been hastened by substandard medical care at San Quentin, and he said his execution would not serve "any legitimate societal interest." State Attorney General Bill Lockyer insists that Allen's death sentence be carried out. "Allen was 50 years old when he orchestrated the Fran's Market murders," Deputy Attorney General Ward Campbell said in a brief. "There was nothing impulsive about his actions. The fact that he now faces execution as a senior citizen is his responsibility." Allen's lawyers say there is a "lingering question of his innocence,'' arguing that the bulk of evidence against him came from informants who were given favorable treatment by prosecutors. Last January, the Ninth Circuit U.S. Court of Appeals in San Francisco upheld Allen's death sentence, ruling that evidence of his guilt was "overwhelming." It also noted that he had expressed no remorse. Both the state Supreme Court and the federal appeals court said Allen's trial lawyer had erred in putting only one witness on the stand during the penalty phase to testify about the good things he had done in life. Both courts, however, concluded that even if a parade of witnesses had told of Allen's redeeming qualities, it wouldn't have made a difference to jurors. Ardaiz recalled a conversation outside Fran's Market on the night of the triple murder in 1980 when he and a district attorney's investigator shared their concern that Allen might have ordered the killings. "Most people are not capable of making that cold a decision," the former prosecutor said. "It was chilling." ********************** Death Row lawsuit is rejected A lawsuit by Marin County to stop construction of a new Death Row at San Quentin State Prison was rejected Wednesday, quashing county officials' hope of blocking the project except in the unlikely event of a successful appeal. The suit, which was denied by Judge Vernon Smith of Marin County Superior Court, said that the California Department of Corrections and Rehabilitation had failed to consider other sites in its environmental impact report or look seriously at alternatives to building a new death row. "We are disappointed because we believe our arguments were well taken," said David Zaltsman, the deputy counsel for Marin County. The county Board of Supervisors will decide within a couple of weeks whether to file an appeal. It was Marin's 2nd failure to block the proposed $233 million, 768-bed death row from being built on prison grounds. The other rejected lawsuit said that corrections officials needed approval from the Legislature to reduce the size of the proposed death row from 1,024 to 768 cells. Marin supervisors and Assemblyman Joe Nation, D-San Rafael, argue that San Quentin is a crumbling, archaic money pit that should be closed and turned into a regional transit hub and ferry port, which won't happen if the state goes through with its plans. (source for both: San Francisco Chronicle) ************* Death penalty for murderer not unjust On Dec. 13, 2005, at 12:35 a.m., Stanley "Tookie" Williams died at the hands of the authorities carrying out his sentence. Williams, in 1971, played a role in the formation of the Los Angeles Crips gang. In 1981, he was convicted of 4 murders and had been on death row ever since. The judicial system saw the death sentence as a proper punishment, but I cannot help but feel remorse and a pang of sympathy for a man who has paid the ultimate price for the crimes he committed. I have always agreed with the death penalty and also the necessity to separate my own emotions from the decisions determined under our justice system. Even the Catholic Church sees the punishment's value, as stated on AmericanCatholic.org: "While the gospel leads the bishops to oppose the death penalty, they also recognize the need society has to protect itself." But as the family members of the victims watched the slow and methodical execution of this killer, in knowing that Williams would never take another breath, how much justification or satisfaction will they gain? A life for a life. It is easy to say, "Oh yeah, I am for the death penalty," but as I nervously checked the clock that evening, until exactly midnight, I was counting down the minutes Williams had left to live, wishing that time would stop for his sake. Knowing that one's death is marked on a calendar seems to be taking away that person's right to die with dignity. Sophomore Chris Clarkson does not believe in the death penalty because murder is illegal. "By killing the murderer, you are committing the same crime. Why do the same thing to the same person, what does killing the murderer do?" Clarkson said. The capital punishment controversy is found at all levels of our society. Reverend Jesse Jackson said that by Gov. Arnold Schwarzenegger's refusal to grant Williams clemency on Dec. 8, he "missed the moment to choose life over death, redemption over revenge." Is it our place to take a life? It may have been planned and neat but Williams was killed. Did we as a society have the to right to deem it acceptable to take a life? A life for a life? My conclusion consists of a lack of resolution, an incomplete and undecided decision. It was always my intention to separate church from state in political decisions, but being a Catholic is a part of who I am. The Bible says, "I swear I take no pleasure in the death of a wicked man, but rather in the wicked man's conversion, that he may live." Unfortunately, some people have no respect for life and this warrants a severe punishment. It was reported that while in prison, Williams actually wrote a children's book discouraging gang involvement. But regardless of Williams' behavior in prison, the fact is that he took the lives of human beings and started a gang that killed many other innocent victims. Williams truly deserved to die and receive an eternal judgment in the afterlife that I believe follows. (source: Opinion, Annie Rose Ramos is a sophomore English major at Santa Clara Univ; The Santa Clara) ************ Judge Asked to Block Execution California's oldest condemned inmate asked a federal judge late Wednesday to block his execution next week, saying it would be cruel and unusual because of his age and health problems. The last-ditch legal move by attorneys for Clarence Ray Allen follows a decision a day earlier by the California Supreme Court rejecting the same challenge. Allen is to be executed Tuesday. "Mr. Allen seeks that relief because his execution would inflict cruel and unusual punishment upon him in violation of the Eighth Amendment in light of his advanced age and infirmities following more than 23 years of confinement on death row," Allen's attorney, Somnath Raj Chatterjee, wrote in court papers. Allen, 75, is legally blind and nearly deaf. He had a heart attack in September and uses a wheelchair. State prosecutors said they would urge the court to reject Allen's petition. While serving time for murder at Folsom State Prison in 1980, Allen was sentenced to death for hiring a man to kill 3 people at a Fresno market. Allen had them killed because he feared their testimony would hurt his appeal chances. (source: Associated Press) ***************** Justices Restore Death Sentence----The Supreme Court overturns the 9th Circuit in the case of a Bakersfield man. The Supreme Court narrowly reinstated the death sentence of a Bakersfield man Wednesday in the 1st capital punishment case to come before the high court since John G. Roberts Jr. became chief justice. With Roberts and retiring Justice Sandra Day O'Connor in the majority, the court voted 5 to 4 to overturn a 2004 decision of the U.S. 9th Circuit Court of Appeals, which had voided the death sentence meted out to Ronald L. Sanders in 1982. The case turned on a complicated issue involving the manner in which juries consider evidence during the penalty phase of a capital trial. Sanders, now 43, was sentenced to death for bludgeoning Janice Allen to death during a robbery in Bakersfield in 1981. Sanders and an accomplice also were found guilty of attempting to kill Allen's boyfriend, Dale Boender. Testimony was presented at trial that Sanders and his accomplice broke into the victims' apartment, tied them with electrical cord and beat their skulls with a heavy blunt object. Boender survived and testified against Sanders. In sentencing Sanders, jurors considered four aggravating factors, two of which - that the crime was committed during a burglary and was committed in a cruel or heinous fashion - were later found invalid by the California Supreme Court. Nonetheless, California's highest court in 1990 concluded that the death sentence was still valid because the jury could have sentenced Sanders to death based on any of the four aggravating factors. Though it upheld Sanders' murder conviction, the 9th Circuit vacated his sentence, saying that the jurors' consideration of the invalid factors prejudiced the sentencing proceeding. The California attorney general's office asked the high court to review the case, contending that a valid death sentence could have been imposed on Sanders despite the invalid factors presented to the jury. The high court agreed in a ruling written by Justice Antonin Scalia. "The erroneous factor could not have 'skewed' the sentence and no constitutional violation occurred," Scalia wrote. "If the jury finds the existence of one of the special circumstances, it is instructed to 'take into account' a separate list of sentencing factors describing aspects of the defendant and the crime," Scalia continued. "These factors include, as we have said, [t]he circumstances of the crime of which the defendant was convicted in the present proceeding." Because the invalid factors were not needed to make Sanders eligible for a death sentence, they made no difference and the sentence can stand, Scalia concluded. In addition to Roberts and O'Connor, associate justices Anthony M. Kennedy and Clarence Thomas concurred in Scalia's opinion. The court's moderate and liberal justices dissented in 2 separate opinions. Justice John Paul Stevens, joined by David H. Souter, wrote that "the decision is more likely to complicate than to clarify our capital sentencing jurisprudence." Justice Stephen G. Breyer, joined by Ruth Bader Ginsburg, said the ruling could "deprive a defendant of a fair and reliable sentencing proceeding." The majority opinion, in a footnote, cited a decision written by U.S. 3rd Circuit Court of Appeals Judge Samuel A. Alito Jr., who on Wednesday completed his 3rd day of Senate confirmation hearings to succeed O'Connor on the court. In the 1995 decision, Flamer vs. Delaware, Alito ruled that two death row inmates in Delaware were not entitled to a new sentence despite problems in the penalty phase of their cases. The 2 were executed months later. Nathan Barankin, a spokesman for California Atty. Gen. Bill Lockyer, said the office was pleased with Wednesday's ruling. He said that if the Supreme Court had found in Sanders' favor it could have affected dozens of other death sentences in California. "This decision recognizes that juries entrusted with the responsibility to make the choice between life or death take those responsibilities seriously." Berkeley lawyer Nina Rivkind, who has represented Sanders for many years on appeal, said "we are very disappointed in the court's decision. We hoped that the court would conclude that sentence was unconstitutional because two of the 4 circumstances the jury was told to consider on the death side of the scale were later held invalid." Rivkind said the case would return to the 9th Circuit for consideration of other penalty phase issues that the appeals court declined to resolve earlier. (source: Los Angeles Times) USA: Alito: Death penalty, end of life issues arise in hearings In his 4th day of confirmation hearings, Supreme Court nominee Samuel Alito has been taking some questions on matters of life and death. Democrat Patrick Leahy quizzed Alito on his thoughts on the death penalty and the end-of-life issues brought up by Terri Schiavo's death last March. The Vermont senator asked Alito if the Constitution bars the execution of an innocent person. Alito replied that it's unconstitutional to execute someone who isn't found guilty beyond a reasonable doubt. Leahy followed up, asking about executing someone who is convicted, in a case where evidence arises later suggesting innocence. Alito replied, "We all want to avoid the tragedy of having an innocent person executed." (source: Associated Press) *********************** A 1986 Case Could Aid Appeals Along Death Row An argument before the Supreme Court in a 20-year-old murder case suggested on Wednesday that the court might be willing to open the door a bit wider to death row inmates seeking access to federal court to present plausible but belated claims of innocence. It was a gritty argument with an unusually intense focus on the evidence that a Tennessee jury considered in convicting Paul G. House of the murder of a neighbor, Carolyn Muncey. Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them. Mr. House has always maintained his innocence, and in 2004 he came within one vote of persuading a federal appeals court to reopen his case. The debate on the appeals court was over whether recently developed scientific evidence had cast enough doubt on the basis of his conviction to overcome the very high bar that the Supreme Court has set for federal courts to hear new claims that were not presented in the initial round of appeals. The vote against Mr. House, in the United States Court of Appeals for the Sixth Circuit, in Cincinnati, was 8 to 7; all eight judges in the majority had been appointed by Republican presidents, and all seven dissenters had been named by Democrats. Six of the dissenters concluded that Mr. House had proved his innocence, while the seventh said that he was at least entitled to a new trial. Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt." Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet. Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it." The court's focus, Mr. Kissinger said, should now be on "the effect of the entirety of the evidence on a reasonable juror" rather than on dissecting each disputed piece of evidence. Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute." Underlying this argument was the question of whether the courts should adjust their rules to take account of the recent string of exonerations based on DNA evidence. Briefs filed by the Innocence Project, a legal clinic in New York, and by the American Bar Association point out that the Supreme Court decided Schlup v. Delo and other cases limiting inmates' appeal rights before DNA testing had revealed flaws in a disturbing proportion of criminal convictions. Those flaws call for new flexibility, the briefs argue. In this case, House v. Bell, No. 04-8990, the new DNA evidence alone did not produce a clear exoneration. Rather, it substantially undermined the prosecution's theory of the case, which was that sex was the motivation for the crime and that Mr. House had killed the victim in the course of raping her. Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. The state maintains that this new evidence does not disprove that Mr. House was guilty of the murder. The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997. Mr. Kissinger said that if the case passed through the gateway, he would argue that Mr. House was deprived of the effective assistance of counsel at his trial and that the state withheld favorable evidence it was constitutionally obliged to produce. Representing Tennessee at Wednesday's argument, Jennifer L. Smith, an associate deputy state attorney general, said that all of Mr. House's new evidence "fails to raise sufficient doubt" about the original verdict to get past the gateway into federal court on those or any other claims. Now it was Justice Breyer's turn. He challenged the state's lawyer on a long list of evidentiary issues, leading Justice Scalia to interject at one point, "We could call on these witnesses ourselves and hear them all over again." Justice Breyer said, "My goodness, I don't know who committed this crime." Only nominally addressing Ms. Smith, Justice Scalia said: "Justice Breyer has not heard these witnesses. The district court did." Along with Justice Breyer, Justice David H. Souter expressed strong doubts about the state's case. Justice Anthony M. Kennedy said that "at a minimum," he had questions about the death sentence if not the conviction. Justices Ruth Bader Ginsburg and John Paul Stevens said little, but if they follow Justice Breyer's lead, as is likely, there would be 5 votes to reopen the case, even assuming that Justice Sandra Day O'Connor, who was uncharacteristically quiet, is no longer on the court by the time a decision is issued. Justice O'Connor's vote proved essential in a decision the court issued in another death penalty case on Wednesday, the first 5-to-4 decision since John G. Roberts Jr. became chief justice. In Brown v. Sanders, No. 04-980, the court reinstated the death sentence of a California inmate whose habeas corpus petition had been granted by the federal appeals court in San Francisco. The appeals court had overturned the sentence because two of the four factors the jury cited in making the defendant, Ronald L. Sanders, eligible for the death penalty were later found by the California Supreme Court to be invalid. Writing for the majority on Wednesday, Justice Scalia said there was no constitutional error in the sentence because the jury was able to give proper consideration to the same facts and circumstances through the remaining, valid factors. Chief Justice Roberts and Justices O'Connor, Kennedy and Clarence Thomas joined the majority opinion. Justices Stevens, Breyer, Souter and Ginsburg dissented. (source: New York Times) ***************** Writing an end to the executions "An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty . .." Such were the final words of a 22-year-old Appalachian coal miner, Roger Keith Coleman, before his electrocution for the 1982 rape and murder of his sister-in-law Wanda Fay McCoy. Until minutes before Coleman was strapped into the electric chair, Princeton resident Jim McCloskey was with him. Jim is a Haverford High School (near Philadelphia) schoolmate of my husband and a good friend. In 1980, he became a pioneer in what is today an important movement: seeking the exoneration of innocent prisoners from life-in-prison and death-row sentences. Today, big names like the Innocence Project and Barry Schenk are carrying the torch, but, 25 years ago, Jim McCloskey and Centurion Ministries, which he founded, were all but alone in the effort. Spending years on each case, Jim and his staff struggle to uncover new and often suppressed evidence. The result is that 36 innocent men and women have been released. They have spent, in total, more than 700 years in prison for crimes they haven't done. Roger Coleman wasn't exonerated, and the case haunts Jim to this day. In spite of substantial proof of innocence uncovered by Centurion during a 4-year investigation, Coleman was executed in Virginia in 1992. Jim is now in Virginia. In a day or two, he will know if Coleman was innocent or guilty. Virginia Gov. Mark Warner, who a week ago ordered that a Toronto, Canada, laboratory test the DNA found at the 24-year-old crime scene, wants to announce the result before he leaves office Saturday. If the DNA is a match with a sample of Coleman's blood, he was guilty of the crime. If it isn't, he was innocent. The repercussions are enormous. Virginia realizes this and, for years, blocked the testing of the Coleman-case DNA. If innocent, Roger Coleman will be the 1st person in the United States to have been - officially and wrongfully - executed. Personally, I believe that the official act of killing a person is wrong, but the horror of killing an innocent man should shake the very foundations of this country and its justice system. It should put into question the seeming love affair the United States has had with the death penalty for the last 10 years. The irreversibility of the death penalty leaves no room for error. But we are riddled with errors, human and otherwise. Remember Gov. George Ryan of Illinois, a death-penalty proponent who was the first to declare a moratorium on executions? He did this, not on a whim, but because he saw that between 1987 and 2000 a total of 13 prisoners on death row, some close to execution, had been declared wrongly convicted and freed from prison. Today, the number of those exonerated and freed from death row in Illinois has grown to 18. Florida has 21. How can we get it so wrong? Jim McCloskey sees justice go awry every day. He sees poverty, racism, mistaken eyewitness and falsified testimonies, incompetent defense lawyers, defective or fraudulent scientific evidence and prosecutorial and police misconduct. There are a dozen good reasons to overthrow the death penalty. Internationally, 122 countries have virtually abolished it; 74 retain it. In 2004, Amnesty International recorded that 97 percent of executions took place in 4 countries: China, Iran, Vietnam and the United States. Executions are legal in 38 states of which New Jersey is one. But things are changing. In December, our state Senate passed a bill to put a moratorium on executions. Last Monday, the Assembly concurred. We are the 1st state to legislatively mandate such a moratorium. Today, only 14 of the nation's 3,400 death-row prisoners are in New Jersey. We're well on our way to making that number zero. (source: Op-ed; Mea Kaemmerlen lives in Plainsboro, N.J.----Centurion Ministries) ***************************** DNA twists the death penalty This line from a Washington Post story brought me up short: "The Supreme Court has never squarely ruled that executing an innocent person is unconstitutional." I understand the outrage over wiretapping Americans without a warrant, but isn't executing an innocent person a more serious violation of civil liberties? The story, published last week, concerns the 1985 murder of Carolyn Muncey, 29, who was beaten to death in Luttrell, Tenn. A jury convicted Paul Gregory House in 1986 and sentenced him to death. I don't have space to provide all the details, but strong evidence points to House and strong evidence points to Carolyn's husband. DNA testing that wasn't available in 1986 showed in 1998 that semen on Carolyn's body was her husband's and not, as prosecutors incorrectly told the jury, House's. House's lawyers argued Wednesday before the U.S. Supreme Court that under some conditions, the availability of DNA testing gives defendants the right to a new trial, even if the 1st trial was fair by the standards then current and appeals have run out. Seems like a slam dunk, but lawyers for Tennessee said there was enough evidence to convict House regardless of the new DNA evidence. In that and other cases, the advent of DNA evidence is twisting the judicial system into a double helix. On Monday, Ohio Gov. Bob Taft delayed the execution of John Spirko, sentenced to die for killing Berry Jane Mottinger 24 years ago. Investigators are testing hairs stuck to duct tape used to wrap a tarp around her body. Also Monday, the New Jersey Assembly voted for a death-penalty moratorium so a panel can study whether capital punishment is fair. Illinois and Maryland already have governor-initiated moratoriums. California is considering a moratorium. The biggest DNA-fueled controversy is in Virginia, where outgoing Gov. Mark Warner has ordered testing to determine the guilt or innocence of Roger K. Coleman, who was convicted and sentenced to death for the 1981 rape and murder of his 19-year-old sister-in-law. Coleman won't get a reprieve, even if the evidence shows he didn't do it. The state of Virginia sent him to the electric chair in 1992. Gov. Warner told The Associated Press, "I believe we must always follow the available facts to a more complete picture of guilt or innocence." While that might seem like a obvious position, even for - or especially for - death-penalty advocates, the AP says Virginia officials routinely have refused to reexamine evidence. Florida is a little luckier in that regard. Both Gov. Bush and the state Supreme Court have acted to preserve possibly exculpatory DNA evidence in the face of legislative attempts to let law-enforcement agencies destroy it. The Coleman case is a big deal because it could mark the first clear evidence that the government executed an innocent person. Most Americans still support the death penalty. But the 64 percent support that Gallup found last fall is the lowest level ever. No doubt the string of cases in which DNA has cleared inmates who spent decades in prison and on death row has made the public nervous. If DNA shows that Virginia made an irrevocable mistake when it killed Roger Coleman, that could just about doom the death penalty. It would be ironic. The emergence of DNA technology actually should decrease the likelihood that innocent people will be convicted and executed. The mistakes being uncovered now are mistakes that shouldn't happen from this point forward. But the death penalty is more emotional than rational. If capital punishment were a deterrent, it should continue even if a small percentage of executions were in error because, on balance, more lives would be saved. Most likely, though, capital punishment deters only the executed individual, an outcome that life in prison can accomplish. Just as support for the death penalty erodes, however, along comes an atrocity like a more recent crime also out of Virginia. Ricky Gavon Gray and Ray Joseph Dandridge, both 28, last week were arrested on suspicion of killing 7 people in 2 Richmond families. Victims, including little girls aged 9 and 4, were tied up with tape and then had their throats cut. Robbery was the motive. If the evidence, perhaps including DNA evidence, proves Gray and Dandridge guilty, why don't they deserve to die? (source: Editorial, Palm Beach Post)
