Dec. 11
USA:
Protecting life by taking it away
LAST MONTH, by a vote of 237-4, the US Conference of Catholic Bishops
adopted a pastoral statement calling for an end to the death penalty. The
11-page document makes a number of claims. Among them: that the execution
of murderers ''violates respect for human life and dignity," that it fuels
a ''cycle of violence [that] diminishes us all," and that ''we have other
ways to punish criminals and protect society." The bishops acknowledge in
passing that Catholic teaching has never banned the death penalty outright
or declared it ''intrinsically evil." Nevertheless, they insist, since the
modern state ''has other nonlethal means to protect its citizens, the
state should not use the death penalty."
They aren't breaking new theological ground. Pope John Paul II made a
similar argument in his 1995 encyclical "Evangelium Vitae." But the new
document is shockingly blunt in brushing aside the suffering of the
victims, or the viciousness of the murder, as irrelevant to the question
of capital punishment. "No matter how heinous the crime," it says, "if
society can protect itself without ending a human life, it should do so."
Executing killers, in other words, has nothing to do with justice. No act
of murder, however calculated or cruel or catastrophic, requires as a
matter of sheer decency that the murderer forfeit his life. In the world
according to bishops, the death penalty never balances the scales of moral
judgment. Timothy McVeigh shouldn't have been executed. Ted Bundy
shouldn't have been executed. Not even Osama bin Laden, with the blood of
thousands on his hands, would deserve to be executed if we had him in our
power.
This is what it means, the bishops claim, "to reject a culture of death,
and to build a culture of life." Their pastoral statement closes with a
quotation from Deuteronomy 30: "I have set before you life and death, the
blessing and the curse. Choose life, then, that you and your descendants
may live." Choose life, that is, by keeping murderers alive.
But is that really what Deuteronomy teaches? Does God frown on the death
penalty even when it comes to the worst killers in our midst?
I am neither Catholic nor a theologian, and I wouldn't presume to teach
religion to a bishop. But the point of view the bishops express is sharply
at odds with the Judeo-Christian tradition in which American law is
rooted. It is no coincidence that the United States is the only advanced
Western nation in which (some) murderers are still put to death. The
United States was founded by religious believers; its culture to this day
remains deeply influenced by faith and the Bible. And on this point,
biblical tradition is unambiguous: For premeditated murder, death is an
appropriate punishment.
No passage in the Bible -- Old or New Testament -- disapproves of the
death penalty, which is why the bishops do not cite one. The Sixth
Commandment (in Catholic reckoning, the Fifth) is clearly no bar to
capital punishment. The penalty for those who violate "You shall not
murder" (Exodus 20:13) is made explicit just a few lines later: "Whoever
strikes a man and kills him shall surely be put to death" (Exodus 21:12).
The text goes on to specify that this applies only to deliberate murder,
not unintentional killing. Accidents are not capital crimes. For a willful
killer, there can be no sanctuary: "Take him even from My altar and put
him to death" (Exodus 21:14).
Similar declarations appear in all 5 books of Moses, nowhere more
dramatically or universally than in Genesis. Speaking to Noah after the
Flood, God enjoins him -- and through him, all of human society -- to
affirm the sanctity of human life by making murderers pay the ultimate
price for their crime. "Whoever sheds the blood of man, by man shall his
blood be shed; for in the image of God has man been made" (Genesis 9:6).
By man shall his blood be shed. Scripture could hardly be more explicit,
yet the bishops make no mention of Genesis 9:6. They deride the idea that
we can "teach that killing is wrong by killing those who kill."
But Judeo-Christian teaching has always been clear: When murderers keep
their lives, human blood is cheapened. That is why reverence for life and
capital punishment belong to the same ethical tradition. Civilized
communities have not only the right but the responsibility to execute
murderers. It may be a difficult responsibility to carry out. It may
involve an assertion of moral authority that modern thinkers condemn.
But easy or not, popular or not, the duty is ours to perform. The
protection of human life is a grave obligation -- never more so than when
it involves taking a life away.
(source: Editorial, Jeff Jacoby, Boston Globe)
NEW JERSEY:
Unused death penalty too costly for state
I read with interest the New Jersey Policy Perspective report regarding
the New Jersey death penalty. ("Report: Keeping capital punishment a waste
of money," Nov. 22. )
Having spent a career investigating 300-plus homicides, which included a
number of capital murder cases, I can say the death penalty is not only a
waste of time and energy, it is a waste of millions of dollars spent on 2
trials (guilt and penalty), appeals, retrials, expert witnesses, specially
assigned defense attorneys, as well as the establishment of a capital case
unit at Trenton State Prison to house the convicted defendants.
Our newly elected governor and our Legislature should work toward amending
the sentencing guidelines for a defendant convicted of purposeful and
knowing murder to life without parole. Let's redirect any future funds
budgeted for capital cases to establish a college fund for the children of
murder victims, including police officers and firefighters killed in the
line of duty; to the State Police Crime Labs to enhance the science of
crime fighting, and to law enforcement in an effort review "cold case"
homicides files.
I would suspect that if an actuary took a look at the numbers spent in the
past 23 years, $253 million, a lot more would be accomplished in the next
23 with less funds and more results.
Phil George----ALLENHURST
RETIRED CAPTAIN----MONMOUTH COUNTY PROSECUTOR'S OFFICE
(source: Letter to the Editor, Asbusy Park Press)
FLORIDA:
Truth and justice----Florida needs an innocence plan
Florida finally did right by Wilton Dedge.
Mr. Dedge is the 44-year-old Brevard County man who spent 22 years in
prison for a rape he didn't commit. Thursday, lawmakers approved a $2
million compensation package for him.
If Mr. Dedge's claim of innocence were unique, legislators could
confidently assure themselves that there couldn't possibly be other cases
like his and go about their business without concern for other injustices.
Sadly, that isn't so.
A year after Mr. Dedge was released from prison in August 2004, Florida
authorities released Luis Diaz.
Mr. Diaz served 26 years in prison after his conviction on seven rape
charges. Like Mr. Dedge, he was finally cleared by DNA testing. (In Mr.
Diaz's case, DNA was preserved in only 2 of the 7 rapes, and tests showed
that he wasn't the rapist in either of them.)
Most of the time, the criminal justice system works reasonably well. In
some cases, however, the wrong person winds up behind bars. Advocates for
inmates say there may be hundreds of such cases in our state. On Florida's
death row alone, 2 dozen inmates have been freed.
Prison is no picnic under any circumstances, nor should it be. But for an
innocent person serving time for a crime he didn't commit, it surely is a
nightmare.
The Dedge and Diaz cases were unusual in that DNA evidence existed, and
was preserved. Such evidence, when tested, can conclusively determine
guilt or innocence. It does not exist in the vast majority of cases.
In those where it does, there should no question about access to testing,
with no deadlines attached. Our sense of justice demands as much.
Potential remedies
A bill already filed for the 2006 legislative session - SB 186 by Sen.
Alex Villalobos, R-Miami - would abolish such deadlines and establish
uniform procedures for postconviction testing.
Mr. Villalobos' bill is an excellent start. But if "truth" and "justice"
are meant to be more than cheap rhetoric, Florida should do more to reduce
the chances that innocents serve time for someone else's crime.
Florida should follow the leads of North Carolina and Connecticut by
creating a special commission that screens and investigates all claims of
innocence. The idea is not only to reduce the possibility of wrongful
conviction, but also to increase the likelihood of convicting the truly
guilty.
The North Carolina commission, established by that state's Supreme Court
in 2002, has studied several causes of wrongful conviction - including
faulty eyewitness identification, forensic error and prosecutorial
misconduct - and proposed various remedies.
In 2003, Connecticut became the first state to legislative create an
innocence panel.
When a crime is committed, it is essential to place responsibility where
it rightfully belongs. But when blame is misplaced and the wrong person
goes to prison, there should be no qualms about righting the wrong and
pursuing solutions so that similar mistakes aren't repeated.
(source: Tallahassee Democrat)
MISSOURI:
Prisoner awaits results of DNA retest
Missouri death row inmate Brian J. Kinder has insisted for years that the
DNA test linking him to the rape and murder of a relative in 1990 was
altered to falsely incriminate him.
Authorities deny it. And although a simple retesting of evidence might
settle the matter, some officials fear it could trigger a flood of inmate
demands that would swamp crime labs already awash in DNA work - and prove
nothing.
Courts were initially averse to Kinder's request for a new look, but
eventually allowed a re-examination of some of the evidence. In a hearing
on Wednesday, he will learn whether the result moves him one step closer
to execution or one step closer to exoneration in the slaying of Cynthia
Williams.
Her 11-year-old son, Donald, discovered his mother's body in her home in
Crystal City on Dec. 22, 1990, the morning after her death. She had been
beaten with a metal pipe and raped.
Williams, 32, was a clerk-typist for the St. Louis County Recorder of
Deeds Office, a churchgoer and the mother of three children. She had been
estranged from her husband, Donald, for about a year.
Witnesses said Kinder, now 46, of Festus, and Williams, a distant cousin,
were at the same bar the night of Dec. 21, 1990. Prosecutors said Williams
had offered him a place to sleep.
But defense attorney Frederick Duchardt Jr. says Kinder was never at the
house at the time of the killing. Witnesses who said they saw him there
had "axes to grind," the attorney insists.
It took jurors in the 1992 trial about 5 1/2 hours to find Kinder guilty
of first-degree murder, rape and armed criminal action. It took them six
hours more to decide that he should die for the crime.
Racial bias?
Kinder's initial appeals focused on allegations of racial bias by
then-Associate Circuit Judge Earl Blackwell, who was facing an election
battle for his seat.
In a written statement the week before Kinder's trial, Blackwell said he
had switched political parties because, "The Democrat Party places far too
much emphasis on representing minorities such as homosexuals, people who
don't want to work and people with skin that's any color but white. I
believe the time has come for us to place much more emphasis and concern
on the hard-working taxpayers in this country."
After the comments surfaced, Blackwell denied that he was prejudiced and
said Kinder, who is black, could not find a stronger supporter of his
constitutional rights.
Kinder asked the Missouri Court of Appeals to remove Blackwell from the
case, but it refused.
Blackwell lost the election later that year.
After Kinder's conviction, the Missouri Supreme Court rejected his appeal
6-1, saying that Blackwell's comments did not affect the trial and that
his statements were political, not judicial. The dissenting judge, Ronnie
White, called Blackwell's comments "race-baiting" and said Kinder should
have gotten a new trial.
State and federal appeals courts rejected Kinder's DNA-based appeals, too.
In 2001, after legislators passed a law allowing post-conviction DNA
testing in cases in which the testing hadn't been done and could make a
difference, Kinder's attorney appealed again, citing the new law. That
appeal also failed.
"We perceive no legislative intent to allow serial retesting of evidence
due to a change in DNA technology," Judge Lawrence E. Mooney of the
Missouri Court of Appeals in St. Louis wrote in October 2003. Doing so
would allow a prisoner "to claim that, with every new technology or new
refinement thereof, he had a right to retest the evidence. Such an
interpretation of the statute could result in repeated requests for DNA
retesting, thereby preventing a conviction from ever becoming final,"
Mooney wrote.
In 2002, the attorney general's office asked the Missouri Supreme Court to
set an execution date for Kinder. But after repeated challenges to the
original DNA test results, the court instead has appointed a "special
master" to decide what old biological samples should be tested or
retested.
New technology
Duchardt is not just arguing that better technology would yield a
different result. He is arguing that the original test result contained a
mark, which someone erased, that would indicate that the DNA was someone
else's. He says someone erased it so aggressively as to leave an
indentation on the document.
Kinder's original attorneys thought the DNA test had excluded their client
and discovered only after it was too late to do their own testing, that it
had not, Duchardt said.
Exacerbating the problem, the court exhibit at issue has since been lost.
Opponents of more testing, including the Jefferson County prosecutors'
office and the attorney general's office, have argued that Kinder passed
up his chance to test the DNA at trial. The claims that the DNA mark was
erased are false, they say.
They also caution that opening the door for one inmate to re-test DNA that
has already been tested could cause "chaos," inspiring other inmates to do
the same.
There are 2 problems with that logic, Duchardt said. "Number one, so what?
What they are wanting to do is take a man's life. Is that something that
this argument has any moment against?"
Secondly, Duchardt said, new DNA techniques do represent a huge
technological advance from the days of the trial.
"This was truly chemistry-set kind of technology," Duchardt said. "This is
literally going from horse-and-buggy days to jet airplanes."
Assistant Attorney General Michael Spillane argued in court filings that
Duchardt was "placing an unfair 'spin' on the evidence."
The original test was never altered, Spillane wrote, and a DNA expert
testified in the trial that the mark in question had either been produced
by photocopying or did not exclude Kinder anyway. 5 chromosomes matched
him, Spillane wrote.
In March, St. Louis Circuit Judge Lisa Van Amburg, appointed special
master by the Missouri Supreme Court, ordered that the Missouri State
Highway Patrol crime lab test biological material recovered from bedding,
a pipe and the victim. The result will be presented Wednesday in Jefferson
City.
If the material matches with Kinder, the courts could move his case toward
execution. If there is no match, Van Amburg could order testing of more
bedding and other samples from the original lab work to see if they
conclusively rule him out.
Donielle Williams, who was 10 when her mother was killed, remains
convinced of Kinder's guilt and said last week that she planned to attend
Wednesday's hearing. She said she wanted closure and an opportunity to
talk to Kinder, although she has been told that he will not be there.
"My whole purpose is to ask him, 'Why? Why did you do that?'" she said.
"And to let him know that he destroyed a family."
(source: St. Louis Post-Dispatch)
**************
CRIMINAL JUSTICE----For lawyers, death cases can be brutal; Lawyers
appointed to represent death penalty cases find they are in over their
heads, in an extremely specialized area of the law.
Attorney Joanne Descher was practicing securities law when she first
learned she had been appointed to represent a Missouri death row inmate in
his federal appeals of two first-degree state murder convictions.
She had no experience in the highly specialized body of law and procedure
known as habeas corpus, the crux of the appeal of her client, Marlin Gray.
But she dove into the case in April 1995, found mentors and speed-learned
the law.
"I realized the magnitude of the appointment, that it was a life and death
situation," she said. "I had to try the best I could."
Few lawyers know this odd hybrid of civil and criminal law, which is
complex, time-consuming and not at all lucrative.
Judges understand they're not likely to select an expert from the pool of
6,000 lawyers admitted to practice in federal court in the Eastern
District of Missouri.
Only 100 of them have any experience with habeas corpus, where federal
courts examine state court proceedings for constitutional problems, and
that number is further whittled to 40 who are routinely tapped for federal
death penalty defense.
"It's an expertise that's hard to come by,'' said James Woodward, federal
court clerk for the Eastern District in St. Louis, which assigned Descher
the case. But most federal judges in St. Louis are impressed by civil
attorneys' vigorous representation of their criminally charged clients, he
said.
Descher represented Gray because she agreed to take some pro bono cases as
a condition of being admitted to the federal court bar here. Although she
felt underqualified, she later had a co-counsel to lean on.
Few lawyers volunteer for defense in death penalty trials or appeals
because they are economically and emotionally demanding, and not
financially rewarding, said Sean O'Brien, who heads the nonprofit Public
Interest Litigation Clinic and has handled death penalty cases since 1983.
O'Brien said it's a "horrible idea" for civil law practitioners to be
thrown into habeas corpus, a specialty he says is fraught with procedural
land mines that trip up even skilled lawyers and may cause a client to
lose a case. And they're up against seasoned specialists in the attorney
general's office.
"There are a thousand ways to accidentally lose a case," said O'Brien, a
visiting professor at the University of Missouri-Kansas City law school.
Ronald Tabak, pro bono coordinator for the Skadden firm of New York, said
civil attorneys should do habeas corpus petitions in capital cases only if
they are extensively trained and mentored by experts in criminal and
capital law.
FEWER AVENUES
Legal experts in Missouri and around the United States say a 1996 federal
law left prisoners with even fewer avenues for habeas corpus relief as
Congress responded to calls to speed up the death penalty process, which
averages eight to 10 years.
The Anti-Terrorism and Effective Death Penalty Act of 1996 severely
restricted the legal basis for arguing that lower court proceedings should
be reviewed for constitutional errors. It shortened deadlines and limited
what federal courts could consider for a 2nd look at a case.
"People think there's all these legal loopholes in getting a conviction
set aside, but the reality is it is government that has all the loopholes
and procedural barriers," said St. Louis attorney Richard Sindel, who is
in that small pool of "learned counsel" for federal death penalty trials
and appeals.
"You rarely are able to present the issues of the case."
Furthermore, many cases are stymied by incompetent trial attorneys, said
David Elbaum, a New York civil lawyer appealing the murder conviction and
death sentence of Reginald Clemons, Gray's co-defendant in the 1991
killings of 2 sisters at an abandoned Mississippi River Bridge in St.
Louis.
"Arguments are not made, leads are not followed through, objections are
left out," he said.
During the appeals process, Woodward added, "It's not just a matter of
finding mistakes at trial, but isolating the claims that can be redressed
by the federal court."
Gray exhausted his appeals after 10 years and was executed on Oct. 26.
APPEALS CONTINUE
Clemons' attorneys, including a former federal prosecutor, are continuing
his appeals.
Descher, who spent hundreds of hours working on Gray's appeal -- only some
of it compensated, at only $125 an hour, or about a third the going rate
in St. Louis -- now practices civil, commercial and family law. She isn't
sure she'd accept another death penalty case.
"Professionally, it was challenging, but it changed me as a person," she
said.
"I got a firsthand look at what the process is of trying to rectify wrongs
that occurred at trial and found it so very, very difficult to do, so
difficult to achieve justice."
She said so many points were barred from consideration that she found
herself more opposed to the death penalty by the time it was all over.
"I have no confidence in how the death penalty is administered," she said.
"There are too many mistakes made, too much room for error."
(source: Associated Press)
