Dec. 7 VIRGINIA: Va. Anti-Death Penalty Activists to Protest California Execution Virginia anti-death penalty activists plan to hold a benefit Wednesday to protest the execution of Stanley Tookie Williams in California. The Virginia Committee to Save Tookie will host a short program in Arlington before screening "Redemption: The Stan Tookie Williams Story" starring Jamie Foxx. Virginians for Alternatives to the Death Penalty is co-sponsoring the event. Williams is the founder of the murderous Crips gang. Governor Arnold Schwarzenegger is considering whether to spare his life for killing 4 people during 2 robberies 26 years ago. Williams has professed his innocence and written children's books about the dangers of gang life. He is scheduled to be executed December 13th. (source: ABC News) OHIO: In Cincinnati, a federal appeals court seemed reluctant to order a new round of hearings over Ohio death row inmate John Spirko's claim that authorities hid evidence that could clear him. One member of a three-judge panel of the 6th U.S. Circuit Court of Appeals openly portrayed Spirko's case as flimsy Tuesday, saying it fell short of undercutting the inmate's death sentence. Spirko's lawyer, Thomas Hill, said that a postal inspector assigned to investigate the 1982 murder of rural postmaster Betty Jane Mottinger in northwest Ohio has long harbored doubts about Spirko's guilt. There is no physical evidence such as fingerprints that links Spirko to the slaying. Hill told the panel the case against Spirko that was presented to a jury in the early 1980s was "untrue and incorrect" because authorities theorized at the time that they might have arrested the wrong man. He said postal inspector Paul Hartman, for example, realized the jury was being given false information about the role of Spirko's best friend and onetime co-defendant in the kidnapping and murder. At the trial, prosecutors did not tell the jury, nor did they disclose to the defense that Hartman had collected photographs and witness statements that placed Spirko's friend Delaney Gibson more than 600 miles away in North Carolina the night before the crime. Starting last year, Hartman told several people - including a Mottinger family member - that he never believed Gibson was involved and that he told prosecutors of his doubts before the trial. Circuit Judge Martha Craig Daughtrey said that Gibson's whereabouts don't carry much weight in her analysis of Spirko's fate. "I'm going to put this as diplomatically as I can," she said. "If Gibson was not involved in the Mottinger murder - so what?" Assistant Attorney General Charles L. Wille argued that no evidence had been hidden, and that Spirko was a liar responsible for implicating Gibson in the crime. Authorities have dropped a murder indictment against Gibson, whom Spirko had claimed was the actual killer. "Now he's saying he's innocent because his best friend didn't commit the crime," Wille said of Spirko. Spirko's lawyers first brought the quest to reopen the case to U.S. District Judge James Carr of Toledo, who rejected their arguments in September. Carr said there was no misconduct by the state. (source: Cleveland Plain Dealer) ************* Deters denies hiding evidence -- Convicted child killer Wogenstahl seeking new trial Hamilton County Prosecutor Joe Deters told a judge Tuesday that neither he nor anyone in his office broke the rules during the trial of convicted killer Jeffrey Wogenstahl. In testimony in federal court, Deters defended his office against Wogenstahl's claims that he and his assistant prosecutors hid evidence and allowed a witness to give false testimony during the 1993 murder trial. The trial ended with a death sentence for Wogenstahl, who was convicted of beating and stabbing to death 10-year-old Amber Garrett. He's now seeking a new trial and is presenting evidence to support his claim this week to U.S. District Court Magistrate Michael Merz. A key issue is whether prosecutors knew that a witness, Eric Horn, had a drug conviction and failed to disclose it to Wogenstahl's lawyers. 2 Harrison police officers testified Monday that they shared the information about Horn with prosecutors, even phoning Deters at home. But Deters and 2 assistants, Mark Piepmeier and Rick Gibson, testified Tuesday that they knew nothing about it. "I don't recall that," Deters said. "It would have been highly unusual for a police officer to call me at home." Wogenstahl's attorneys have said the prosecution's aggressiveness in the case led them to withhold information from defense lawyers, most notably about Horn's drug-related arrest. They say Horn, Amber's half-brother, was an important witness because he disputed Wogenstahl's explanation for why he went to Amber's house the night she disappeared in 1991. Wogenstahl said at his trial that he was there to buy marijuana from Horn, but prosecutors said Wogenstahl went there to trick Horn, who was baby-sitting, into leaving the house so he could abduct Amber. Horn denied at the trial that he sold drugs to Wogenstahl or anyone else, a statement Wogenstahl's lawyers say is contradicted by Horn's 1992 guilty plea to a drug abuse charge in juvenile court. They suggested that Horn may have received a favorable plea deal - he originally was charged with drug trafficking - in exchange for his testimony against Wogenstahl. Prosecutors said they knew nothing about Horn's juvenile case and would not have offered such a deal to Horn. (source: Cincinnati Enquirer) USA: 1,000 U.S. executions America's record of putting people to death just passed the 1,000 mark since the U.S. Supreme Court reinstated capital punishment in 1976. Meanwhile, several studies show that public support for the ancient custom of killing murderers is fading. Once overwhelmingly popular, executions still are backed by more than half of the populace, but the rate is declining. Whether to kill killers is an emotional question. Passions on each side are strong - as illustrated by a clash between 2 high-profile U.S. Catholics, Supreme Court Justice Antonin Scalia and Sister Helen Prejean, who comforts death row prisoners in their final hours. As professor Gerald Beller notes on the facing page, Scalia subscribes to St. Pauls declaration that governments are "ordained of God" and become Gods instruments to "execute wrath upon him that doeth evil." In a Pew Forum debate, the justice quoted Paul to support executions. He noted that Europe lost its Christianity, then abolished the death penalty - while both religion and execution sentiments remain high in America. "Indeed," Scalia told the forum, "it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has the least support in the churchgoing United States. I attribute that to the fact that, for a believing Christian, death is no big deal." The justice said his own Catholic church is wrong to oppose executions. During a question period, Scalia was asked about unfairness in executing some defendants but not others. "You want to have a fair death penalty?" he replied. "You kill; you die. Thats fair." After Scalias strong stand was reported, Sister Prejean voiced an equally strong rebuttal. She recounted his views in her latest book, The Death of Innocents, and wrote: "I'm flabbergasted at the arrogance of a man who says 'death is no big deal,' when it's not his child whos being put to death, or his father or his wife, or himself. ... When Scalia sends people to their deaths, he never sees their faces. But I see their faces as they turn to me when they are being killed. Scalia quotes the Bible to justify government's 'divine authority' to kill 'evildoers' - and I summon the words and example of Jesus, who transformed the mandate of 'an eye for an eye' by urging forgiveness, even of enemies." We think the nuns outlook is humane, while the justices view is barbaric and bizarre. We think European nations that have ceased executions show compassion. They dont coddle murderers they just dont want society to sink to the same level of the murderers by killing in return. As weve said many times, were proud that West Virginia stands among American states that stopped killing prisoners. We wish that pro-death states would adopt this humanitarian value. (source: Editorial, The Charleston (W.VA.) Gazette) ************** Protect the accused, protect justice What does Khalid el-Masri of Germany have in common with Stanley "Tookie" Williams of California and Steven Avery of Wisconsin? Each offers a bracing example of why, in pursuit of justice, we need to respect the inescapable ability of human beings to make mistakes. A big mistake was made in el-Masri's case. He's the German national of Lebanese descent whom Secretary of State Condoleezza Rice confirmed to German leaders was mistakenly snatched into America's anti-terrorist snare on New Year's Eve 2003 during a vacation trip in Macedonia, all because his name sounded like that of an Al Qaeda suspect. The Washington Post quoted an unnamed former CIA official as saying the local agency chief "believed [el-Masri] was someone else. ... She didn't really know. She just had a hunch." In a lawsuit, assisted by the American Civil Liberties Union, el-Masri says he was taken to a U.S. prison in Afghanistan where he was tortured and interrogated until March 2004 when authorities realized they had the wrong man. Still, he is reported to have been held for two more months before being flown to Albania, where he made his way back to Germany. However his suit turns out, el-Masri's case illustrates the worst fears of fair-minded Americans. Human rights need to be respected, even in pursuit of terrorists who show no respect for anyone's rights but their own. After all, if we don't respect human rights, what does that make us? The el-Masri case also illustrates the real reason why I don't think celebrity Death Row inmate Stanley "Tookie" Williams, co-founder of Los Angeles' infamous Crips street gang, should be executed as scheduled on Dec. 13. It is not because I am particularly impressed by the celebrities, including Jamie Foxx, Snoop Dogg and Danny Glover, who have rallied to have his sentence commuted to life by California Gov. Arnold Schwarzenegger. Now 51, Williams has changed his ways, by all accounts, and that's good to know. Williams is hardly the first bad guy to have a death row conversion. As Samuel Johnson might have said, were he around today, nothing concentrates the mind like the prospect of lethal injection. No, I oppose Williams' execution for the same reason that polls have shown declining support nationwide for executions in recent years: I've seen too many people sent to death row by mistake. In Illinois, 18 men and women were exonerated by the late 1990s, leading former Gov. George Ryan to empty the state's death row of its 164 prisoners. Other states have opened projects like the Center on Wrongful Convictions at Northwestern University School of Law, where students reopened cases that led to the Illinois exonerations. All of which brings me to Steven Avery. Avery was freed two years ago by DNA evidence from a rape conviction reopened by the Wisconsin Innocence Project at the University of Wisconsin Law School. After a missing woman's remains were found recently in a salvage yard owned by his family, Avery was accused of her murder. Calumet County sheriff's police say a sport-utility vehicle that belonged to Teresa Halbach, who disappeared Oct. 31, contained her blood and Avery's, though Avery denied ever being inside her vehicle. At a time when the death penalty appears to be losing ground, advocates for executions have seized on the Avery case to argue ... what? Do they really want to jail people for crimes they have not committed on the off-chance that another crime might be avoided? Of course, Avery's earlier conviction makes him a poor poster child for revoking the Constitution's protections against preventive detention. Convicted of rape in 1985, Avery was freed in 2003 after new DNA testing of a pubic hair found on the victim linked the crime to another man already in prison for another sexual assault. Most of the death row inmates who have been exonerated have not been accused of new murders. Focusing on one who has is like focusing on an airliner that has crashed: It's news, but only because it is not typical of what usually happens. More typical is another nagging reality: Punishing the wrong suspect also leaves the real one not only unpunished but free to commit more crimes. When we shortchange the rights of the accused, we dilute our ability to protect ourselves. (source: Chicago Tribune) ******************* Death row, international law playing increasing role MARK COLVIN: International lawyers and academics have been discussing capital punishment at a conference in Tokyo this week. American lawyer Sandra Babcock directs a program that's been giving legal help to Mexican citizens on death row in the United States. She's been telling Shane McLeod they've had some success in overturning executions, and she says their approach may work for other countries too. SHANE MCLEOD: Well in the United States there are approximately 120 foreign nationals on death row. And in those cases, foreign governments have played a decisive role in persuading courts that they should take a second look at those cases. We haven't been successful in all cases, but the Government of Mexico in particular has been a very vocal advocate on behalf of its nationals on death row. And that has led, most recently, to the commutation of 2 death sentences of Mexican nationals in the United States. SANDRA BABCOCK: On what grounds can foreign countries make these arguments? SHANE MCLEOD: Well, I can only speak from my experience in the United States. But in US courts, foreign governments can file what are called amicus briefs - those are an amicus brief is a brief by a friend of the court, somebody who has an interest in the case, and a foreign government whose citizen is facing execution certainly has an interest in protecting that national's rights. So that is one way that foreign governments have been able to have an influence in these cases. The other thing that foreign governments have done - and particularly Mexico and Germany and Paraguay - they have taken cases to the International Court of Justice, and to the InterAmerican Court on Human Rights in order to obtain decisions that can then be used as precedent in domestic fora. SANDRA BABCOCK: Do you get a sense that this type of case can put pressure on governments, and do you think it might reduce the reliance on death penalties in other parts of the world? SHANE MCLEOD: I think the role of international law is increasingly significant. Not just in the United States, but worldwide there is an inexorable trend internationally toward to abolishment the abolition, of the death penalty. Most recent we heard yesterday at this conference in Tokyo from a person who is from Korea, talking about the very promising changes that are coming in Korea, and the possibility that the death penalty there will be abolished. Sierra Leone, Senegal, who are two of the most recent countries to have abolished the death penalty. Africa is becoming an execution-free zone, just like Europe and Latin America. And I think that role of international law and the role of foreign governments in bringing pressure to bear on those outlying countries that continue to insist that the death penalty is purely a matter of domestic penal policy, when in reality this is a human rights issue that is increasingly recognised as an archaic and barbaric form of punishment by the international community. SANDRA BABCOCK: Is there a danger that that international pressure will harden some countries' resolve, and countries like Singapore or Japan might see it as meddling in their own affairs? SHANE MCLEOD: I think that's always a danger. I think that particularly in the short term we've seen those kinds of reactions. And I think that we have to be careful in our advocacy, we have to be, we have to have a multifaceted approach in advocating for the abolition of the death penalty. But I think it's a mistake to not make the arguments, and to not tell countries that by employing a mandatory death penalty, for example, they are violating not only customary international law but the International Covenant on Civil and Political Rights. And countries that have, that are part of the international community, that depend on the international community for assistance in combating terrorism and other things have to realise that if they're going to receive the assistance of the international community, then they have to play by the rules. And that means respecting the human rights of all people, including people who have committed crimes. Nobody forfeits the right to life, and everybody has to be treated with human dignity and respect. And that's the.... that's the world that we're working towards. MARK COLVIN: Sandra Babcock, the Director of the Mexican Capital Legal Assistance Program, with Shane McLeod in Tokyo. (source: ABC News) ***************** Killing is Blasphemy: Only God can Take a Human Life When I was young, adventurous and still willing to sleep in hostels and live on French bread, I went to Florence, Italy -- hitchhiked there from Paris with a very cute International Herald-Tribune newsboy named Trig -- and visited the Duomo, a magnificent Renaissance cathedral that would knock your eye out with its glory and lush decoration. As I stood there in the center of the church, I was totally overwhelmed. The church's massive and intricate design created within me such a feeling of God's power and awe that I was absolutely dumbstruck. Then it occurred to me. "This effect of awe was created deliberately. The church's architects really put in an effort to make this place overwhelming and to make the power of God seem HUGE." Now why would they do that? Wouldn't they want to do the opposite and make God seem to want to be my savior, companion and friend? "I bet you anything," replied the scholar/tourist next to me, "that they did it because they were trying to prove a point -- that if God was so all-powerful and yet could stoop so low as to notice the likes of the people who built this cathedral, then the people He noticed must be God-like too." Aha. This cathedral was an ego trip! I immediately went outside and, like St. Francis of Assisi, began looking for God in the sun, the moon and the stars instead. I am afraid that modern man is following in the footsteps of the egotists of the Renaissance. I bet they are thinking, "Only God can create a man, true, but if WE have the power to destroy God's ultimate creation, then we must be on a par with God too." No. That's blasphemous. Only God -- o! r Allah or Yahweh or the Great Spirit or the Tao or string theory or whatever one chooses to call the magnificent power that holds the universe together -- can destroy what only God can create. Whether one kills by dropping bombs upon people one cannot see from 30,000 feet in the air or whether one kills in the heat of battle or whether one kills while committing a violent crime or when giving a fatal injection to a prisoner on death row, taking another human life is the ultimate blasphemy. With regard to Stanley Tookie Williams III, who is scheduled to be snuffed by the State of California on December 13, 2005, the same thing holds true. Did he commit the cold-blooded murders that he was accused of? He says that he didn't. But as a lawyer I know once! told me, "I gave up practicing criminal law because I got tired of having my clients lie to me." But it doesn't MATTER if Williams committed the crime or not. It doesn't even matter that he has redeemed himself in prison by doing good works. What matters is this: To kill this man is to commit the ultimate blasphemy against the Master of the Universe -- to pretend to be God also. That's just WRONG. And God don't like ugly. (source: Jane Stillwater, Al-Jazeerah) ******************** Flashbacks Vietnam and capital punishment Capital punishment in our time has always reminded me of the Vietnam war. "Certain blood for uncertain reasons," as Tim O'Brien wrote of his war. The only measure of success was the body count. No front lines, and no rear areas. No epic battles, only a series of brutal firefights against a largely invisible enemy. No lasting victories. Only casualties. At 2 a.m. this morning, a Vietnam veteran became the 1,000th person executed in the U.S. since capital punishment was reinstated in 1976. Kenneth Lee Boyd had served as bulldozer operator in Vietnam, where he was shot at by snipers daily. Boyd's execution gave me flashbacks. Nearly 2 decades ago, I had the honor of serving as counsel for David Funchess, the 1st Vietnam veteran executed in America. David was execution number 56. There is a mordantly appropriate symmetry here. We are now, again, engaged in an unpopular war against an unconventional enemy. Through David's case I first learned about a new illness called post-traumatic stress disorder (PTSD). David had it bad. At the time of David's capital murder trial in the mid-1970s, virtually no one had ever heard of PTSD. By the time David was scheduled to die, in spring 1986, much more was known about PTSD. We tried to tell that to the courts. The courts refused to listen, telling us we should have raised PTSD at the time of David's trial. David Funchess was a war hero. For his service in combat in Vietnam he received the Purple Heart, the Vietnam Service Medal and the Vietnam Campaign Medal (with device). The Vietnam War also destroyed David Funchess. David Funchess was on death row for a botched robbery of a liquor store that left two people, Anna Waldrop and Clayton Ragan, dead, and which left a third person in a coma. Florida's Gov. Bob Graham signed David Funchess' death warrant on March 20, 1986. Funchess had already been through one full round of appellate and post-conviction litigation, state and federal. To stop the execution this time, Funchess's lawyers, led by Mark Olive, and his investigators, led by Scharlette Holdman, would need to come up with some pretty powerful new evidence on why David Funchess did not deserve to die for his crimes. Olive and Holdman did come up with powerful new information. Part of it came in the form of statements from people who knew Funchess before his service in Vietnam. They described a quiet, intelligent, and caring person who was in no way headed toward a life of crime. Funchess did well in school, graduating in 1965 with a rank of 47 out of 167 in his class. He had no criminal record, worked hard, and was well on the way to transcending the race, class, and family problems that were so prevalent in his youth. But for Vietnam, all indications were that he was well on his way to entering Florida's middle class. David embraced the traditional American value of patriotism, and upon his graduation from high school he enlisted in the U.S. Marine Corps. He was subsequently sent to Vietnam, where he was immediately thrust into intense combat. In addition to the horrors of jungle combat, Funchess was exposed to the herbicide Agent Orange, which has since been linked to a wide range of serious health problems in Vietnam veterans. Among the common symptoms among many Vietnam veterans has been neuropsychological damage. After his return from Vietnam, Funchess was a deeply disturbed and confused young man. Compounding these problems, the medication he was receiving for his painful leg wounds eventually led him onto a debilitating heroin habit. All U.S. veterans returning from Vietnam had challenges to overcome when they tried to readjust to civilian life; some met these challenges more ably than others. The damage that the war did to David Funchess, and to too many other soldiers, made his transition to civilian life extremely difficult. In addition to the effects of their time in combat, Vietnam veterans had to contend with the negative reception many Americans gave the returning soldiers. The American public was sharply divided over the country's involvement in Vietnam, and U.S. soldiers suffered greatly from this division. The unpopularity of the war carried over into many Americans' attitudes toward returning Vietnam veterans. Not only did they receive little recognition for having served their country, many were overtly ostracized upon their return to the United States. As of mid-1971, 6 months after David Funchess was discharged from the service, the unemployment rate for Vietnam veterans aged 20-24 was 12.4 %; for African-American a nd disabled veterans it was 25 %. Many people viewed the veterans as either violent or drug addicts or both. Gov. Bob Graham signed David Funchess's death warrant in February 1986. My public defender office, CCR, took the lead in litigating the claim that Funchess deserved a new trial because PTSD was not recognized at the time of Funchess's original trial, and because Funchess's moral blameworthiness for the murders could not be fairly judged without reference to PTSD. The procedural barriers made such an argument futile, however. Funchess's best chance was clemency, because the clemency process is not burdened with the legal technicalities that exist in the appellate courts. Governor Graham was free to consider Funchess's PTSD, and he had said some things that indicated he was sympathetic to the problems of Vietnam veterans. Governor Graham denied clemency, however, at 6:30 p.m. on Monday, March 21, 1986, with Funchess's execution scheduled to take place at 7 the next morning. Now it was up to the courts. CCR's offices were only a few blocks from Florida's then new Vietnam War Memorial. In the days and nights before Funchess's scheduled execution, his fellow Vietnam vets stood around-the-clock vigil at the memorial. Taking shifts, they stood at attention, day and night, rain or shine. Whenever we at CCR had a lull in our battle to keep Funchess alive, we would leave our offices and walk to the war memorial. Although the memorial is in the heart of downtown Tallahassee, what I remember most about being there was the silence of the place. It was as though the quiet dignity of all those vets absorbed the city noises of Tallahassee, creating a sort of a black hole for sound. Nothing loud could enter the perimeter of their vigil for David Funchess. About an hour after Governor Graham denied clemency, Mark Olive called CCR from the federal district court in Jacksonville to tell us that no decision on our stay application was expected until 8:30 or 9 p.m. At 8 p.m., I left the CCR office for the vigil, where I stayed for about an hour. Some religious leaders had joined the Vietnam vets, including Tom Horkin, director of the Florida Catholic Conference. At 10:30 that night, Mark called again from Jacksonville. The federal trial court had denied everything, including permission to appeal. He read us the judge's opinion over the phone, and it was a killer: procedural technicality piled upon procedural technicality. There are bad ways of losing a capital case in court, and there are worse ways - this was the worst way. I delivered the bad news to the folks standing vigil. When I told them that Funchess's hopes of a stay were dead, their response was silence and sadness. There was no surprise. At midnight, Mark called to chat, and after our conversation, as soon as I hung up the phone, it rang again. It was a clerk for the U.S. Supreme Court calling: "Have you heard? Did the Eleventh Circuit tell you what they did?" I said no. "Then I'd better let them tell you. Call em now." I tried, but I got a busy signal. Finally, at 12:30 a.m. I got through to the Eleventh Circuit clerk's office and found out that the court had granted a stay until noon on Tuesday; in effect, a five-hour stay. The stay had been granted because an Eleventh Circuit judge had asked for a poll of all the judges on the court, to see if there were enough votes to take Funchess's case en banc, that is, to have it heard by the full Eleventh Circuit. At 1 a.m. Mark called again from Jacksonville to let me know he was heading back to Tallahassee and to ask me to start drafting some additional papers we needed to file in the U.S. Supreme Court. At 1:50 a.m., the Eleventh Circuit's death clerk called to read me the Eleventh Circuit's opinion: The judges had voted against a review by the full court. I continued to work on the draft for the Supreme Court, and then at 5 a.m. I returned to the vigil. The morning drizzle had ripened into a downpour, though, and I stayed for only a few minutes. I returned to the office and a morning of long stretches of waiting interspersed with intervals of frenetic activity: drafting, dictating, editing. At 10:10 a.m. - 1 hour and 50 minutes before the stay was scheduled to expire and David Funchess would be electrocuted - the U.S. Supreme Court's clerk called. The court had extended the stay for 5 more hours, until 5 p.m. The prison rescheduled the execution for 5:01 p.m. We continued to wait. The news from Washington came at 3:25 p.m. The court had denied any additional stay by a vote of 7 to 2, with Justices Brennan and Marshall dissenting. It was over. At 4:30 p.m. I went to join the vigil 1 last time; at 5:01 p.m., I laid a flower at the base of the Vietnam War Memorial. A reporter accurately described the scene at the Florida veterans' memorial the evening David Funchess was executed: At the late afternoon vigil, people looked at their watches. It was 5:20. "It must be over by now," one woman told another. Others held each other and wept. Still others stared at the color photograph of Funchess in his Marine uniform placed atop a basket of flowers. The group formed a circle in between the 2 huge granite columns that form the war monument. The Rev. Jim Hardison, coordinator of the death penalty project for Florida IMPACT, an interfaith lobby group for social justice issues, said he was angered not by capital punishment per se but by the way the state administers it. "Again, we've taken a poor, penniless, minority person who was mentally ill and executed him," Hardison said. Others present said they felt compelled to speak. "We're really appalled by your callous indifference toward David Funchess," said Linda Reynolds, director of the Florida Clearinghouse on Criminal justice, referring to the governor. "Vietnam veterans will not forget what you've done today." "David Funchess was killed twice by society," Reynolds said. "Once in Vietnam and once today." Later, from Jim Thompson, David's friend and fellow Vietnam veteran, who had witnessed the killing, I learned that, at the end, "David was free, from the first burst of electricity." We, Funchess's lawyers and investigators and paralegals and secretaries and support staff, were not fine. We went out to a dinner of steak and red wine, something of a CCR ritual when our clients were executed. That night at dinner we cried. We all cried, Scharlette and I included. For the rest of the night, I slept on Mark Olive's couch at CCR. For some reason, going home to my clean bed and orderly house would have felt like treason. David Funchess was buried on Florida land owned by Jim Thompson. David Funchess was African-American. Did I mention that? (source: Rutland Herald--Michael Mello is a professor of law at Vermont Law School in South Royalton) ********************* Death penalty under fire This year, like the last 5, has seen a stepped-up assault on the death penalty. As 2005 comes to a close, the battle over capital punishment has shifted to 5 cases now before the U.S. Supreme Court and to the governor's office in California. Gov. Arnold Schwarzenegger is under pressure to grant clemency to Stanley "Tookie" Williams, a co-founder of the Crips gang and a convicted quadruple murderer. A number of Hollywood celebrities, whose general opposition to capital punishment is well-known, have taken up the cause. The governor has agreed to hear arguments from both sides Thursday, but it can safely be said that clemency for Williams would be a huge boost for opponents of capital punishment. After all, if a quadruple murderer can't be put to death, what argument is there for executing someone whose crimes are less severe? While most Americans still profess support for the death penalty, it has been clear for some time that opponents of the death penalty are far more zealous than the penalty's supporters. Hardly a month goes by without some new and often imaginative attempt to end capital punishment in this country. That's why the U.S. Supreme Court will hear no fewer than five cases this term testing some aspect of capital punishment. Two will be argued today before a court that still includes Justice Sandra Day O'Connor. It was O'Connor who, earlier this year, told an audience of female lawyers in Minneapolis that "if statistics are any indication, the system may well be allowing some innocent defendants to be executed." But O'Connor failed to offer a list of innocents who have been executed - probably because no such list exists. She was merely using her office to do what others have done before: suggest that because innocent men have been sentenced to death, some innocent persons must have been executed, or are about to be executed. In recent years, the Supreme Court has been busy on the capital punishment front. It has tossed out sentencing schemes that left it to judges to decide life or death and barred executions of the mentally retarded and those who were under 18 when they committed murder. The stakes aren't quite that dramatic in the current death penalty cases, but the outcome of each will surely matter. The 2 cases before the court today are among the most important of the term. In one (Kansas vs. Marsh), the court will decide whether the Kansas Supreme Court was right to strike down the state's capital punishment statute as facially unconstitutional. The Kansas court ruled in 2004 that the state law was invalid because it requires the imposition of the death penalty even when the mitigating and aggravating factors in a specific case are equal. The state of Kansas and the U.S. Attorney General will argue that the Kansas sentencing law is really no different than a number of other state statutes that have been found to be constitutional. They point out that a Kansas juror is free to consider all mitigating factors before reaching an individual decision on whether the death penalty is warranted. In the 2nd case, out of Oregon, the issue is whether a person who has been convicted in a capital case can present evidence suggesting he isn't guilty of the crime. Typically, the sentencing hearing has been restricted to issues of whether or not the death penalty should be imposed. In this case, a defendant claimed he was entitled to present evidence of "lingering doubt" as to his guilt in the sentencing phase. The Supreme Court's resolution of these 2 cases would have immediate effects. Should the court uphold the Kansas Supreme Court decision, it would affect several states directly and limit the future power of all legislatures to write new laws. If it upholds the lower courts in the Oregon case, the court would potentially alter the sentencing procedures in all of the capital punishment states and greatly change the nature of sentencing hearings. Given the scope of the relentless attack on the death penalty in the media and in the courts, we're left to wonder not that the number of executions is declining, but that there are any at all. (source: Denver Post -- Al Knight is a former member of The Post's editorial-page staff) *************** The 1000th Execution in the United States Thanks to the writer Norman Mailer and his "Executioner's Song," history remembers Gary Gilmore, first inmate executed after the reintroduction of the death penalty in the United States in 1976. 3 decades later, the thousandth execution illustrates the doubts which have come over American society concerning the merits of the death penalty. Sentenced to death in 1999 in Virginia for the murder of an employee while he was trying to burgle a billiard room, Robin Lovitt, 42, should have, on Wednesday November 30, become the 1000th person executed since 1976. 24 hours before the scheduled lethal injection, the states Democratic governor, Mark Warner, commuted his sentence to life. The inmate had asked for a DNA test, but, contrary to the rule, the evidence had been destroyed by an employee. It was on this flaw that his lawyer, Kenneth Starr, the impeachment trial prosecutor of President Bill Clinton, based his request for clemency. Governor Warner, who had never commuted a death sentence, hesitated a long time. "The community must be sure, every time the supreme punishment is applied, that it is just," he finally explained. The thousandth execution was therefore put off. Kenneth Lee Boyd, 57, a Vietnam veteran, sentenced in 1994 for having killed his ex-wife and his father-in-law in front of his 2 children, received, Friday December 2 at 2 AM, three injections at the central prison in Raleigh, North Carolina: one to put him to sleep, the 2nd to paralyze him, the third to stop his heart. The prison authorities explained that the choice of the hour was a question of organizational convenience and not a way of discouraging the hundreds of demonstrators massed in front of the prison. The ritual was observed. The condemned mans last meal was made public: roast beef, baked potatoes, salad. Kenneth Boyd was visited by his family. He was also able to give an interview, another tradition of the last day on death row. Associated Press asked him how he felt about the statistical importance of his execution. "I would detest being remembered that way, he replied. "I don't like the idea of being a number." A few hours later on Friday, another inmate was to be executed in South Carolina: Shawn Humphries, for the murder of a salesman. The thousandth execution comes when the death penalty is receding in the country. When the Supreme Court ruled in 1976, only 13% of the Americans were opposed to the death penalty. They now represent 30% of the population. Support remains strong (64%), but it has dropped by 20 points in 10 years. On the eve of the thousandth execution, a thousand religious figures signed an appeal for abolition. In North Carolina, where the execution took place, a professional lawyers association took a poll: 65% of the people questioned (and 59% of the Republicans) favor a moratorium in order to evaluate the functioning of the system. The number of executions has clearly dropped: 59 in 2004 compared with 71 in 2002 and 98 in 1999. However there are still 3415 inmates on death row. Out of the 55 already executed in 2005, 7 were volunteers. They had given up their appeals and were asking to be executed as soon as possible. Doubt had appeared since the modernization of police scientific methods and since the introduction of genetic analyses has permitted bringing to light a considerable number of judicial errors. To date, 122 people sentenced to death have been found innocent. The most recent, Harold Wilson, left a Pennsylvania prison November 16. He was sentenced in 1989. A DNA test proved that he was probably not the murderer. He is the 2nd person found innocent this year. According to the Center on Wrongful Convictions which has studied 51 cases, almost 1/2 of those sentenced were sentenced on the basis of erroneous testimony. The death penalty opponents are now trying to establish what they have long suspected, that someone could be wrongly executed. The first example could be Larry Griffin, executed in 1995 in Missouri. The NAACP has redone the investigation and has concluded that he was wrongfully sentenced. It has provided the justice system with the names of 3 suspects. In July the prosecutor agreed to reopen the case. (source: Le Monde) KANSAS/OREGON: Court Weighs Juries' Death Penalty Decisions The Supreme Court dived into the internal workings of jury deliberations in capital cases Wednesday, debating whether jurors could have lingering doubts about a defendant's guilt after a conviction and whether they could find that evidence for and against the death penalty was evenly balanced. Less than a week after the nation's 1,000th execution since states resumed capital punishment, the justices devoted their entire argument session to whether the Oregon and Kansas Supreme Courts had correctly interpreted the Eighth Amendment's prohibition on cruel and unusual punishment. In both arguments, the justices struggled to understand the positions of attorneys for the death row inmates who wanted the high court to stay out of their cases - and did little to support the rulings from the state courts that said the Constitution protects their clients. "You win on the Eighth Amendment ... and when you leave the courthouse, you say, 'I don't want it anymore,'" an incredulous Chief Justice John Roberts told attorney Richard L. Wolf, who represents an Oregon death row inmate. During the arguments in the Kansas case, Justice Antonin Scalia said jurors, in weighing all of the evidence, always have a way out: they can grant mercy to a defendant. "That clearly exists under (the Kansas) scheme ... What else do you have to do?" he asked of attorney Rebecca E. Woodman, who represents the Kansas inmate. In the Oregon case, the justices were asked to decide whether a jury can consider "residual" or lingering doubts they have about a defendant's guilt in deciding whether to impose life in prison or the death penalty. The state of Kansas also asked the high court to determine whether the Constitution bars states from allowing juries to impose a death sentence if they conclude that aggravating evidence of the crime's brutality and mitigating factors explaining a defendant's actions are equal in weight. The cases are significant because they arise at a time when the court is undergoing one of its biggest shake-ups in decades. The court has a new chief and it is losing one of its most influential members - Sandra Day O'Connor - to retirement. O'Connor has often been the swing vote in capital cases, including a 5-4 decision earlier this year that overturned a ruling against a Pennsylvania inmate by appeals court Judge Samuel Alito, President Bush's pick to replace O'Connor. In 1972, the high court struck down the death penalty because of arbitrary sentencing procedures used by states. Four years later, justices said states could use the death penalty if they added safeguards to sentencing procedures. But in recent years, O'Connor and other justices, including Ruth Bader Ginsburg and John Paul Stevens, have expressed concerns that capital defendants are not getting adequate legal representation. In August, Stevens told the American Bar Association that recent exonerations of death row inmates through DNA testing raise questions about the "wisdom" of continuing with capital punishment. The 1st case argued Wednesday involves Randy Lee Guzek, who is on death row in Oregon for the June 1987 murders of Rod and Lois Houser, the uncle and aunt of Guzek's former high school girlfriend. Guzek's murder convictions have been upheld by the state's highest court. But changes in Oregon law and mistakes by the trial judge led the Oregon Supreme Court to overturn his death sentence 3 times. Yet another jury must decide Guzek's sentence. States - including Oregon - allow previous trial testimony to be used to educate jurors about the crime. The Oregon high court said Guzek can use alibi testimony from his grandfather and mother to impeach 2 co-defendants, who labeled Guzek as the leader in the double murder. But Oregon Solicitor General Mary Williams argued that allowing Guzek to offer evidence of his innocence during the sentencing hearing is improper because it will force prosecutors to prove his guilt all over again. The 2nd case centered on Michael Lee Marsh, who was convicted in the June 1996 killings of Marry Ane Pusch and her 19-month-old daughter, M.P. After hearing Marsh's appeal, the Kansas Supreme Court last year struck down the state's death penalty law, finding that it unconstitutionally directed jurors to impose capital punishment if they determined that the aggravating factors offered by the prosecution and the mitigating evidence touted by the defense were of equal weight. The cases are Oregon v. Guzek, 04-928, and Kansas v. Marsh, 04-1170. (source: Associated Press)
