Feb. 16 TEXAS: Bexar jail granted short staffing reprieve The State Commission on Jail Standards is trying as hard as it can to pass Bexar County's jail. So on Wednesday it gave the jail an "incomplete" and another month to do the minor tweaking on staffing ratios that state inspectors say it needs. "We did not say they did not pass," said Terry Julian, executive director of the Texas Commission on Jail Standards. "We just gave them an incomplete to finish some issues, because the jail administrator was out of the country." Jail Administrator Dennis McKnight took over the jail this month after Deputy Chief Amadeo Ortiz retired. It's a perennial struggle for Bexar County, which has only passed annual inspections twice since 1990. Along with Harris and Dallas counties, it's one of the largest urban centers in the state that doesn't meet state jail standards. County Judge Nelson Wolff said he's glad of the reprieve, because he hopes the jail's fortunes will change with McKnight's takeover and the creation of a new executive director of Criminal Justice Planning and Coordination. The Bexar County Jail got a barely failing grade last year, when inspectors found that there weren't quite enough detention guards on the 11 p.m. to 7 a.m. shift, also called the "dogwatch." This year, they're even closer. "They want us to do some readjusting of our duty rosters to give them a better idea of whether we are actually short staffed or not," said Assistant Jail Administrator Earl Griffin. "They think we can utilize our manpower a little bit differently." And if they don't, not much will happen. "We don't really discipline anybody," Julian said. "We find them in noncompliance." Bexar County's problems may not be as difficult to resolve as those in Dallas, which has wrestled with medical care deficiencies, and Houston, which has at times had up to 1,000 inmates sleeping on the floor. Harris also had a high-profile escape in November when a death-row inmate slipped into civilian clothes and walked out of the jail. Bexar County's crowding problems are more marginal, with administrators struggling to keep the deputies staffed at one per 48 inmates. The toughest time to cover, Griffin said, has been the dogwatch, and he believes the jail as a whole needs more deputies. Wolff disagrees. "I think it's managing the staff right," he said, "and making sure that people that don't belong in jail are not there." Wolff has said that commissioners have provided Sheriff Ralph Lopez with the funding for enough people to run a full jail. Julian concurred. "Judge Wolff and the Commissioners Court have tried to be supportive to Sheriff Lopez," Julian said, "and we've tried to support them in the past and will continue to do that." One management issue that the state could help with, said Criminal Justice Planning and Coordination executive director Keith Charlton, is relaxing the one-to-48 staffing ratio on low-risk inmates. Commissioners and Lopez sent Julian a letter requesting the change earlier this month. Lopez did not return telephone calls. (source: San Antonio Express-News) ************************* Suit claims jailers ignored inmate sex----Private system blamed in suicide of prisoner who reported rape A civil rights lawsuit announced Wednesday blames the private corrections system for the 2004 suicide of a South Texas woman found hanging in her cell after reporting that a male inmate raped her. LeTisha Tapia, who died at the Val Verde County Jail in July 2004, was housed in the same cell block as male inmates and reported that guards allowed male and female inmates to have sex with each other, according to the lawsuit filed by the Texas Civil Rights Project on behalf of the woman's family. "It's unbelievably outrageous what happened here. Sexual relations between inmates is just beyond the pale," civil rights attorney Scott Medlock said Wednesday. "When prisons and jails are privatized, the company's bottom line is placed above inmate health and safety." The lawsuit, filed in the federal district court for the Western District of Texas in San Antonio, names GEO Group Inc., the nation's second-largest private prison company, among the defendants. "We obviously haven't had an opportunity to review the lawsuit. So, at this point, I wouldn't have any comment," said GEO Group spokesman Pablo Paez. Also declining immediate comment were the U.S. Marshals Service and several Val Verde County officials named as defendants in the civil action. The Marshals Service contracts with Val Verde County for jail space and the county, in turn, hires GEO Group to run the jail, which houses 784 inmates. Tapia, who spent nearly six months in the jail before her death, was awaiting transfer to a federal facility after pleading guilty to a marijuana possession charge, Medlock said, adding that she had about a year left on her sentence. While in the county jail, male inmates were moved into maximum-security, solitary confinement cells that are connected to the women's cells by a common day room, the lawsuit said, but jailers allowed the inmates to have contact with each other. "Female inmates discovered they could open the cells of the male inmates using a toothbrush," the lawsuit alleged. "Guards would open the door between the hallways and tell the inmates to 'do what you want to do, or what you gotta do.' Some female inmates began to have sexual relations with male inmates." The close quarters for male and female inmates continued for more than a month, the lawsuit said. Tapia reported the sexual contact to the prison warden in April 2004, but he did not move the male inmates to another section of the jail, the lawsuit said. Tapia was raped after female inmates forced her into a male inmate's cell as punishment for being a "snitch," the lawsuit said, and her mental state deteriorated. Tapia later reported feeling depressed and anxious and asked to see a psychiatrist in a medical request marked "URGENT," according to the complaint, but she did not see a doctor for another 10 days. After Tapia smuggled a telephone from the infirmary into her jail cell, an individual described only as "Lt. Duggar" physically and psychologically abused her and sexually humiliated her in front of others, the lawsuit alleges in graphic detail. The next day, Tapia was found dead in her jail cell, hanging by a sheet. (source: Houston Chronicle) ************************ DA candidates make their case----Dallas County: Three seeking GOP spot tout varying backgrounds In a banquet hall full of their attorney peers, the Republican candidates for Dallas County district attorney sought Wednesday to differentiate themselves from one another by touting their rsums and management philosophies. Toby Shook, a 22-year veteran prosecutor who is now the office's chief felony prosecutor, said he alone can make a seamless transition if elected while still placing his own mark on the office. Although the other 2 candidates - former Judges Vickers Cunningham and Dan Wyde - worked in the district attorney's office earlier in their careers, Mr. Shook said he is the only candidate with experience supervising prosecutors. "You have to be able to walk the walk and talk the talk," Mr. Shook said at the debate at the Belo Mansion sponsored by the Dallas Bar Association. "You have the respect of your peers, and that's what I have." Mr. Cunningham said he has demonstrated his management capabilities as a judge, efficiently moving cases while holding more trials and employing fewer court-appointed attorneys than his judicial peers. He said he also collected a record amount in court costs and fines. "You've got to have the managements skills and proven results when you go into an office that large," Mr. Cunningham said. Mr. Wyde also touted the way he managed his misdemeanor court before he resigned in December to enter the campaign. Mr. Wyde said he plans to be a visible presence in the courthouse if elected. "You're managing people when you're managing cases," he said. On the subject of the 2001 scandal in which paid police informants planted fake drugs on innocent people, Mr. Cunningham said the district attorney's office has already made adequate policy changes to prevent such situations. Mr. Cunningham said if he had been district attorney during the aftermath of the scandal, he would have taken other measures to restore trust in the system, such as asking a judge to appoint on independent prosecutor to investigate the scandal rather than appointing one himself. Mr. Wyde called the district attorney's handling of the cases a "complete whitewash" and suggested that prosecutors intentionally hid evidence and kept innocent people in jail. Three investigations into the cases concluded that prosecutors did not respond quickly enough and did not communicate with one another, but the inquiries did not find that prosecutors intentionally withheld information. Mr. Shook distanced himself from the scandal, saying he was focusing on 6 death penalty trials at the time the bogus cases surfaced. He said prosecutors might have discovered the bad drug cases handled by former detective Mark Delapaz sooner had police and the district attorney's office communicated better "on all levels." The 3 Democratic candidates will square off in a debate at 11:30 a.m. Monday at the Belo Mansion in downtown Dallas. Early voting begins Tuesday for the March 7 primary election. THE FULL STORY A look at some of the statements made by Republican candidates for district attorney during Wednesday's debate: The statement: Talking about curbing violent crime, Vickers Cunningham said he might pursue ideas similar to an initiative he implemented while a felony district judge in which he worked with U.S. marshals to round up probation violators who had come through his court. The rest of the story: Probation violators are a problem, but the county justice system is ill-equipped to deal with it. A recent internal audit concluded that the county's probation department suffers from poor internal communications and has lost track of thousands of probationers. And the county jail is so crowded that four additional jail floors have had to be reopened in the last year at a cost of $1 million per floor per month. The statement: Toby Shook said, "I'm the only candidate in this race who has prepared and tried a death-penalty case as a prosecutor." The rest of the story: That's true. As the top felony court trial prosecutor who has spent 22 years with the district attorney's office, Mr. Shook has been a part of some of the highest-profile and most serious trials in recent history. But while he's the only candidate to prosecute such a case, he's not the only one with death-penalty trial experience. Mr. Cunningham, who stepped down as a felony court judge to run for district attorney, presided over 5 of the 6 death-penalty trials involving members of the Texas 7 prison escapee gang. Mr. Shook was the lead prosecutor in all 6 of those trials. The statement: Dan Wyde said the 2001 fake-drug scandal in which police informants planted fake drugs on innocent people "has become a national $10 million black eye to the Dallas County district attorney's office and the Dallas County legal community." The rest of the story: 3 investigations into the scandal concluded that the district attorney's office failed to respond quickly enough to the bogus cases filed by a crooked police detective and the police informants. But it was the Dallas Police Department that faced federal lawsuits for violating the civil rights of innocent people, with Dallas ultimately paying out more than $8 million. No legal wrongdoing was found within the district attorney's office. (source: Dallas Morning News) **************************** Kinky's Mexican Riptide Born in Chicago on Halloween in 1944, Kinky Friedman came to Texas a year later with his parents, both educators. In 1953, they opened the Echo Hill Ranch summer camp, which continues to operate on the family's 400-acre spread in Medina, where Friedman still lives, sharing with 60 dogs that call Utopia Rescue Ranch home. He graduated from UT (with honors) in 1966 and did a Peace Corps tour in Borneo before returning to the U.S. Since then, Friedman has achieved a fair amount of success as well as notoriety, first as the lead singer and songwriter for the Jewboys, and later as a writer of novels and essays. Aside from a 1986 foray into Kerrville politics, when he ran as a Republican candidate for justice-of-the-peace, previously Friedman has only danced on the edge of political life. He did this often in ironic and sometimes edgy Jewboy ditties such as "Ride 'Em Jewboy," a ballad about the holocaust, and in "Get Your Biscuits in the Oven and Your Buns in the Bed," a lament over women's liberation from the point-of-view of a chauvinistic boyfriend (a tune that, in a double-dose of irony, earned Friedman the National Organization for Women's 1974 "Male Chauvinist Pig of the Year" award); more recently he's addressed social and political questions in his writing, as in a March 2004, Texas Monthly piece about the state's paper-thin case against Texas death row inmate Max Soffar. (Soffar's conviction was overturned on April 21, 2004. At press time, he's being retried in a Harris Co. court.) It took a Mexican riptide and an Irish heckler to convince Friedman to make a direct jump onto the political stage. The transformation began five years ago, he says, during a vacation in Mexico with his friend, hair product mogul John McCall, now his campaign treasurer. Friedman was alone, taking a walk on the beach when a "freak riptide" engulfed him, tossed him around, and spit him out, forcing him to scramble up a cliff to safety. "I was lost [and] dehydrated," he recalls. "While I was on the cliff-side, I was prepared to die. I thought, I have to do more with my life," he recalls. It wasn't about near-death deal-making with the Almighty, he insists, but a realization that "I am not really a musician or an author; they're really both extensions of my personality, somebody who wants to be a truth-teller." About a year later, at a Jewboys gig in Northern Ireland, he was approached by a man who'd just seen the show. "'The patter between songs is much better than your music,'" Friedman recalls the man saying. "'Kinky,' he said, 'you're not really a musician, you're a politician.'" The observation didn't exactly charm Friedman. "My heroes are not [U.S. Rep.] Tom DeLay or [former California Gov.] Gray Davis," Friedman says. "They're Will Rogers and Mark Twain; they were humorists, not clowns." Still, the man got him thinking about his Mexican cliff-side epiphany, and about Texas, his home. He began to look at things differently, and he didn't like what he saw: the state's public education system a mess, with teachers merely "teaching to a test" and not free to truly educate; the state's capital punishment machine churning forward, while serious questions of innocence (as in Soffar's case) seem to go unanswered; the border with Mexico a sieve, and people "dying in the backs of trucks." And no one - least of all the Republicans, led by Rick Perry, who had effectively swallowed state government whole - appeared to be doing anything at all to turn things around. "People are tired of these 2 parties - [of politicians that] never get off their asses except to attack someone," Friedman says. What the people need, he says, is what he has to offer: "A little bit of honesty; that's what people are dying for." It all made sense, he says: he would run for governor. "All the stars are in a line, boy; it's time." (source: Austin Chronicle) ******************** Price earns GOP nod for state appeals court The Texas Court of Criminal Appeals needs new leadership. While it has improved its handling of death penalty cases, it's still rebuked too often by the U.S. Supreme Court on issues including executing juveniles. These and other problems, such as the court needing a more forceful advocate for public defenders, leads us to recommend Tom Price over Sharon Keller in the GOP primary race for presiding judge. The court's current leader, Judge Keller, is a smart, unflappable jurist. In fact, there is much to admire in the 52-year-old Dallas native's professionalism, including her about-face on a couple of death penalty cases. But the court has been slapped down one too many times during her tenure and needs a makeover. We've previously questioned Judge Price's work ethic; the 60-year-old former Dallas judge would not be our first choice as a challenger to Judge Keller. On the plus side, Judge Price already sits on this court and has ideas about improving its image, including stopping executions stemming from Harris County's faulty crime lab. Texans will be better served if Republicans give Tom Price a chance to lead. (source: Editorial, Dallas Morning News) ************************ Jury deliberations in capital murder trial have to wait----Lack of available hotel rooms puts closing arguments in 1980 case on hold until Tuesday Max Soffar will have to wait five days before a Harris County jury begins deliberating whether he should be returned to prison for a crime that first landed him on Texas' death row 25 years ago. Though attorneys on both sides have finished presenting evidence, closing arguments will not begin until Tuesday morning because this weekend's NBA All-Star Game and related events have resulted in a lack of available hotel rooms for jurors. Harris County juries are nearly always sequestered for cases in which the death penalty is considered, so the availability of hotel rooms is crucial for deliberations to proceed. It is the latest delay in a case that has dragged on for nearly three decades. Since 3 people were shot to death and another critically wounded during a northwest Houston bowling-alley robbery in 1980, Soffar has been convicted and condemned for the crime, then won a reprieve in 2004 when a 3-judge panel of the 5th U.S. Circuit Court of Appeals overturned his capital murder conviction, citing ineffective representation from his lawyer. Confessions recanted Since the new trial began last week, prosecutors have tried to prove he was involved in the shootings, relying heavily on audiotaped confessions Soffar gave in 1980 - confessions he later recanted. Defense attorneys have focused on ballistics evidence, noting that details in Soffar's 1980 confessions do not match findings at the crime scene or the sole survivor's version of events. Defense attorneys say there is "not a shred" of physical evidence connecting Soffar to the crime scene other than his words 25 years ago - words that, they say, proved to be fiction. During the final day of testimony Wednesday, jurors heard from a forensic science consultant who concluded that only 4 gunshots were fired in the Fair Lanes Windfern Bowling Center that night - not 5, as Soffar had contended back in 1980. Evidence at the crime scene did not support Soffar's description of a 5th gunshot - a "warning shot" - being fired into the bowling alley's floor, said Ken Braunstein, an associate professor emeritus of criminal justice at the University of Nevada hired by Soffar's defense team. He suggested one of the bullets ricocheted into the carpet after striking one victim in the head. "That would not be consistent with a bullet fired into the floor. There'd be much more of a crater," Braunstein said, as jurors viewed a photograph of minor damage to the bowling alley's floor. Braunstein said he also found portions of Houston Police Department reports made in 1980 that supported his conclusion. Conflicting evidence Soffar's description of where the victims' bodies landed also conflicted with the ballistics and physical evidence, Braunstein said. The sole survivor of the shootings consistently described a single gunman who was acting alone. Soffar, on the other hand, claimed to have entered the bowling alley with an accomplice that night and said they took turns shooting the victims. Defense attorneys tried to show that Soffar's confession 25 years ago may have been an ill-conceived attempt to collect reward money offered for information in the case. Soffar's sister testified Tuesday that she recalled him remarking that his friend resembled a composite drawing of the gunman and that perhaps he could collect the reward money by pointing out the likeness. Prosecutors say Soffar never asked the police about collecting the reward money, although defense attorneys dispute that. Assistant District Attorney Lyn McClellan told jurors the robbery was planned to get money to buy drugs. The state also presented testimony from 2 witnesses - 1 alive, 1 dead - who claimed to have heard Soffar confess to the shootings. (source: Houston Chronicle) ILLINOIS: We interrupt this trial to laud the defendant If I were just slightly less of a gentleman, I would have spit out my coffee in a great geyser the other morning upon reading the news that the doorman at George Ryan's Chicago condominium building had testified as a character witness at the former governor's federal corruption trial. The doorman told jurors that Ryan is "a man of integrity, trust and loyal to his constituents." How does he know? From seeing him about 15 times a month since 1990 and spending a night in the governor's mansion during the Illinois State Fair. Nothing against doormen, but that's java-spewing absurd. No matter how affable the relationship between a building employee and a tenant--particularly a part-timer whose real home is in Kankakee--neither is in a good position to evaluate the other's overall integrity, trustworthiness or loyalty to third parties. In that same light, many of the other character witnesses Ryan's defense lawyers are interspersing this week are also absurd--specifically the anti-death-penalty activists who adore Ryan for perhaps the most anomalous act of his career, emptying Death Row during his final week as governor. But perhaps this is fitting because the law that allows character witnesses in the first place is also absurd. Think about it: In every other stage of a trial, judges strive to keep a sterile focus on facts that are directly relevant to the charges at hand. Jurors aren't allowed to read news accounts, discuss the case with anyone or even hear the lawyers argue about relevance. Then comes character-witness time, when the defense "is permitted to call witnesses to testify from hearsay," as the U.S. Supreme Court explained in a 1948 opinion upholding the practice. "The witness may not testify about defendant's specific acts," the court said, but is "allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself." Suddenly, the trial devolves into "opinions and gossip," in the neat summary of Northwestern University School of Law professor Ronald Allen, who teaches evidence and criminal procedure. "It can be a real mess. What are the opinions and gossip based on? The witness can't get into it." The very idea is a holdover from "the frontier phase" of justice, when trials were community events, according to the Supreme Court opinion in Michelson vs. the United States. "Calling friends to vouch for defendant's good character, and its counterpart--calling the rivals and enemies of a witness to impeach him by testifying that his reputation for veracity was so bad that he was unworthy of belief on his oath--were favorite and frequent ways of converting an individual litigation into a community contest and a trial into a spectacle," Justice Robert A. Jackson wrote. Yet, "character is relevant in resolving probabilities of guilt," Jackson wrote. A defendant "may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. ... Such testimony alone ... may be enough to raise a reasonable doubt of guilt." The drawback? Once the defense starts calling character witnesses, the prosecution can rebut with negative character witnesses, thus opening "a veritable Pandora's box of irresponsible gossip, innuendo and smear," Jackson wrote. Assistant U.S. Atty. Joel Levin told me Wednesday in the hallway outside the trial that the government has no plans to call witnesses to offer random negative opinions about Ryan to counter the roughly 1 dozen likely to testify on Ryan's behalf, and that he finds the character-witness issue "goofy." Nearly 60 years ago, Justice Jackson all but agreed, calling the practice "archaic, paradoxical and full of compromises." Nevertheless, the court upheld it as "a workable, even if clumsy, system." The question for us today is whether the jury will swallow this testimony or, like some of us, choke on it in disbelief. "If I were on that jury, I might well be insulted listening to the doorman's testimony," said DePaul University law professor Leonard Cavise, who has attended the trial. "I'd say, `We've been sitting here more than four months! Now this? What are you doing?'" (source: Column, Eric Zorn, Chicago Tribune) GEORGIA: Bill would shield doctors at executions----Death penalty critics want punishment for physicians The Georgia House overwhelmingly approved legislation today to protect physicians who assist the state in carrying out the death penalty through injection. Lawyers for anti-death penalty activists have sued to try to force the state to punish doctors who monitor executions, contending that they are violating the American Medical Association's code of ethics, as well as their Hippocratic oath. They argue doctors sometimes participate in executions - helping to locate a vein for injection, for example - rather than merely observing. House Bill 57, which passed 157-1 with no debate, would protect any doctor or medical professional who assists in an execution from having their state license challenged, suspended or revoked. It would apply to executions that take place after July 1. State Rep. David Ralston (R-Blue Ridge), chairman of a House Judiciary Committee, said this only became an issue after the state decided in 2001 to allow lethal injection as an alternative to the electric chair. "Since then there have been challenges to the licensure of people who participate," Ralston said. Last July, Arthur Zitrin, a retired psychiatrist and death penalty opponent from New York, filed suit in Fulton County Superior Court to try to force the state Composite Board of Medical Examiners to take action against Georgia doctors who help with state executions. The suit is pending. In 2004, Zitrin tried without success to get the composite board to revoke the license of a doctor who helped the state Department of Corrections carry out lethal injections. The medical board refused to investigate Dr. Hothur V. Sanjeeva Rao, who later quit helping the prison system perform executions. (source: Atlanta Journal-Constitution) CALIFORNIA: Lawyers object to new execution plan----California judge ordered anesthesia before lethal injection Lawyers for a California murderer-rapist scheduled to die by lethal injection Tuesday are objecting to a court-ordered plan to alter the procedure. The attorneys said in court papers Thursday that the changed plan reduces the condemned man "to little more than a test subject." California, for the 1st time, intends on using an anesthesiologist at the execution of Michael Morales to assure he is unconscious when a paralyzing agent and heart-stopping drugs are administered at San Quentin State Prison. The prisoner's attorneys say that isn't good enough, and want the execution blocked amid concerns that the paralyzing agent might cause constitutionally unacceptable levels of pain if Morales is not unconscious. They say the anesthesiologist, according to prison rules, cannot remain at Morales' side once the lethal cocktail begins flowing, and the doctor doesn't have any power to stop the execution even if Morales is perceived to be conscious. That and other concerns "reduces Mr. Morales to little more than a test subject," San Francisco attorney John Grele wrote U.S. District Judge Jeremy Fogel in a court filing Thursday. Morales, 46, of Stockton, California, was convicted in 1983 of murdering Terri Winchell, 17, who was found beaten, stabbed and raped in a secluded San Joaquin County, California, vineyard. On Tuesday, in response to Grele's lawsuit, Fogel ruled that California must change its lethal injection method for Morales' execution because the current mix of drugs may constitute cruel and unusual punishment. Fogel said the state could employ an anesthesiologist or use a barbiturate to ensure he's unconscious. Fogel, like Grele, was concerned that a prisoner might be conscious after given a sedative and suffer too much pain when a paralyzing agent is injected. The judge said either one of his two proposals "preserves both the state's interest in proceeding with plaintiff's execution and plaintiff's constitutional right not to be subject to an undo risk of extreme pain." Morales' attorneys were not immediately available for comment Thursday. Fogel was expected to finalize his decision later in the day. The U.S. Supreme Court has upheld executions, in general, despite the pain they might cause inmates, but has never directly addressed whether alleged pain in lethal injections is unconstitutionally excessive and can be avoided. (source: Associated Press) *************** Clemency flap puts Starr in spotlight again -- Apparently bogus documents mar his bid to halt execution Kenneth Starr, the special prosecutor in the impeachment of President Bill Clinton, seemed an unlikely ally at first glance for a Stockton murderer-rapist facing execution Tuesday. Michael Morales' lawyers rejoiced in their recruitment last month of the prominent Republican attorney, who had just won clemency for a condemned Virginia inmate, to make the case to Gov. Arnold Schwarzenegger to spare their client's life. At the very least, Starr's involvement was guaranteed to draw attention to the case. Instead, much of the attention has been drawn to Starr, and what he knew about a bizarre sequence of events in which documents submitted to Schwarzenegger supporting clemency for Morales were apparently forged. Over the weekend, Starr and the other lead attorney for Morales withdrew those documents -- purported statements from six jurors backing clemency and a prosecution witness recanting her testimony -- after prosecutors produced evidence they were bogus. All were submitted by the same defense investigator, Kathleen Culhane of San Francisco. Culhane has not surfaced to explain herself. David Senior, Morales' longtime lawyer, who hired Culhane last month and recruited Starr to the defense team, said Wednesday he had done his best to verify the statements after their authenticity was challenged. "Ken Starr and Dave Senior presenting false evidence to the governor, to the attorney general -- it wouldn't happen," Senior said. "We would never do that in a million years, knowingly." The case raises some serious questions, said Los Angeles attorney Diane Karpman, a former State Bar Court referee who writes a monthly column on ethics for the State Bar Journal. "It's not unlikely that the State Bar will look into this." However, Karpman and most other experts on legal ethics contacted by The Chronicle said the episode, though possibly disastrous for Morales, did not show improper conduct by the lawyers. They said Starr and Senior had apparently acted promptly when they first had reason to doubt the statements' authenticity. Morales, 46, of Stockton, was convicted of raping and murdering 17-year-old Terri Winchell near Lodi in 1981 and is scheduled to be executed Tuesday at San Quentin State Prison. In seeking clemency, his lawyers said Morales was remorseful for killing the girl. But they also maintained he had been sentenced to death primarily because of a jailhouse informant's false testimony that he bragged about the killing and solicited witnesses' murders. The prosecution witness' purported statement in support of clemency, claiming her testimony had been coerced by police, was sent to Schwarzenegger on Jan. 27. 10 days later, San Joaquin County prosecutors called it a forgery and presented their own statement from the witness, denying she had ever spoken to anyone representing Morales. Defense lawyers responded by accusing prosecutors of coercing false testimony, and submitted the juror statements the next day. Prosecutors then obtained contradictory statements from the same jurors and renewed their accusations of forgery. This time, they had corroborating evidence -- some signatures were misspelled, and one person had supposedly been interviewed at a home where she no longer lived. On Sunday, Morales' lawyers withdrew all the declarations and said they would conduct their own investigation. It was a blow to whatever hopes Morales had for leniency from Schwarzenegger, who has denied clemency in all 4 cases he has considered. Morales' lawyers could face inquiries under State Bar rules that prohibit attorneys from presenting false evidence and require them to act promptly to correct unintentional misrepresentations. They could also be investigated under a provision requiring lawyers to act competently when supervising the work of others. Violations are punishable by discipline that ranges from private reprimands to disbarment. Most disciplinary complaints against lawyers come from litigants, but State Bar prosecutors can also open cases based on news articles, said Bar prosecutor Russell Weiner. He declined to comment on Starr or the Morales case. Most veteran practitioners in attorney ethics and discipline interviewed for this article said the lawyers did not appear to have broken any rules. Once Starr and Senior were on notice of problems with the declarations, "they acted apparently immediately and exactly appropriately," said Monroe Freedman, a law professor at Hofstra University in New York and a national authority on legal ethics. Although it might be a bad idea for lawyers to submit declarations from an investigator whose work has already been challenged, false statements are grounds for discipline only if they're intentional, said attorney Richard Flamm, former ethics committee chairman for both the San Francisco and Alameda County bar associations. One who disagreed was Walnut Creek attorney Carol Langford, who teaches at UC Hastings College of the Law and is co-author of the textbook "Legal Ethics in the Practice of Law." She said Starr and Senior should have known something was amiss when prosecutors first presented evidence that the prosecution witness' recantation was forged. "My view is that these lawyers were trying so zealously for their client that they crossed the line," she said. San Francisco attorney Richard Zitrin, who has written three books on legal ethics and teaches a course on the subject at Hastings and the University of San Francisco, said the defense lawyers were obliged to "sit down with the investigator and give her the 3rd degree" after the 1st hint that she might have forged a document. Besides a lawyer's duty not to mislead a court or a governor, Zitrin said, "you also have an obligation to your client not to present false testimony, because it's going to come out and your client is going to get slammed." Culhane, the San Francisco investigator who submitted the documents, has done work for a number of anti-death penalty groups, including the California Appellate Project. Efforts to reach her were unsuccessful. "Her reputation is one of the best in the field," Senior said. He said she had eight years of experience as an investigator in death penalty cases and had been recommended by two top lawyers in capital cases. Starr has not responded to requests for interviews, though he issued a statement this week saying the controversy should not overshadow the "compelling case for clemency." Starr, 59, is a former federal judge who was solicitor general, the Justice Department's top litigator, under President George H.W. Bush. He is best known as the independent counsel whose investigation of Clinton's lies about a sexual relationship with a White House intern led to the president's impeachment. His hardball tactics in the Clinton probe made Starr a polarizing figure, widely distrusted by Democrats and the liberal groups whose causes include opposition to the death penalty. But it was Starr who won the most recent grant of clemency for a death row inmate in the United States, prevailing on Virginia Gov. Mark Warner to spare Robin Lovitt a day before his scheduled execution in November. Starr, brought into the case without a fee by his Washington, D.C., law firm, persuaded Warner that a court clerk's destruction of DNA evidence called his client's guilt into question. That led to his recruitment for the Morales case, in which he is also working for free. "We consider it a very positive sign that this noted conservative figure has signed onto the case," Ben Weston, a lawyer in Senior's office, said shortly after Starr came aboard 3 weeks ago. "We understand that his perspective is different than organizations who are fighting against the death penalty," Weston said. "Judge Starr really helps us understand the perspective that Governor Schwarzenegger may have." Starr, now dean of the Pepperdine University law school, said in his statement that he hoped the governor would look beyond the controversy over the documents. "It would be profoundly unjust now for the wrongdoing -- if there was wrongdoing -- on the part of a single investigator in the clemency effort to compromise, much less jeopardize, the plea for mercy," Starr said. (source: San Francisco Chronicle) TENNESSEE: Inmate challenges injection procedure----Abdur'Rahman claims method unconstitutional Tennessee death-row inmate Abu-Ali Abdur'Rahman filed an appeal yesterday to the U.S. Supreme Court challenging the constitutionality of the lethal injection procedures the state uses. The petition says the execution protocol, which includes the use of a drug called Pavulon, is unconstitutional because of the risk that it will result in inhumane pain and suffering. Pavulon paralyzes inmates to the point that they cannot express the pain they feel, said Bill Redick, one of Abdur'Rahman's attorneys and director of the Tennessee Justice Project, which advocates changing how the death penalty is administered. Abdur-Rahman's appeal of his death sentence is pending in the 6th U.S. Circuit Court of Appeals. No execution date is set. He began his challenge of the lethal injection protocol in 2002 in Davidson County Chancery Court, which approved the protocol. That decision was upheld late last year by the Tennessee Supreme Court. Scores of cases challenging lethal injection protocols have been filed across the country, mostly by inmates who have execution dates coming, Redick said. Abdur'Rahman's case is different because it's not an 11th-hour appeal and has been argued in lower level courts, he said. The U.S. Supreme Court will decide before the end of its term in June whether to take up the appeal, Redick said. (source: The Tennesean) OHIO: Longtime public defender resigns After pleading guilty in the shooting of his estranged wife, Shirley Nameth, on Sept. 13, 1999, John Nameth, flanked by defense attorney Janet Fogle McKim, listens as Shirley's mother makes a statement in Washington County Common Pleas Court. After being convicted of her murder, John Nameth was sentenced to life in prison with the possibility of parole after 23 years. With her unmistakable laugh and a witty comeback always at the ready, Washington County Public Defender Janet Fogle McKim has a reputation of being somewhat of a "character." To the thousands of clients she represented over the past three decades, McKim is known as someone who has always been of the utmost character. She's known for defending each of her clients to the best of her ability - no matter what the crime. Last week, McKim announced she is leaving her post, citing a progressive genetic disease that she has battled since age 12. She has worked at the office for 24 years. "I'm just to the point where I can't do it anymore," McKim said. "I've missed so much work in recent months that it just is not fair to my clients or partners ... I woke up one night and finally realized that I'm a disabled person." For years she has walked with the assistance of braces on her legs. The muscle-wasting disease has also taken away most of the use of her hands. Her doctors have advised her to only move around with the assistance of a walker, but she admits she has always been too proud and too stubborn. A few recent falls on her way to court played a role in her decision to step down from office. Until then, nothing could keep her from the courtroom. "I've watched Janet for 25 years and she is one of the bravest people I know," said Washington County Common Pleas Judge Ed Lane. "She has never let her illness slow her down or in any way hinder her performance. "She has always represented her clients ethically and to the best of her abilities. She's just a good trial attorney." A few of McKim's accolades include being named the 1st woman in Ohio to be certified to handle death penalty cases. She represented clients in 4 such trials. She is proud of the fact none was sentenced to death. Also, McKim campaigned for the creation of a local public defender's office, which was established in 1982. She has headed up the local office since its inception. McKim's departure from office means for the 1st time in 80 years no member of her family will be practicing law locally. Her grandfather and father had the offices of Fogle & Fogle in Marietta. Despite the family legacy in the legal profession, McKim said her father tried to steer her away from law. She even followed his advice for a short while. She earned a master's in education, and taught school for one year in Athens County. "It wasn't for me," McKim said. "I was born to be a public defender." McKim said she convinced her father of the fact and he helped her enroll at the University of Akron School of Law. McKim practiced a short while in Columbus, and returned to Marietta in the late 1970s. Eventually she took over her father's practice. A resolution written by the Washington County Bar Association honoring her father's dedication and devotion to serving the poor of the community has always adorned her office wall. McKim says she thinks she has lived up to her family's reputation. Her success, she says, comes from family influences and by learning some tough life lessons. She openly discusses her younger days as a self-described "hippie" and drug abuser and says many of her own experiences have enabled her to connect and relate with many of her clients. McKim has battled both alcohol and drug addiction, something many of her clients have faced. "I finally prayed to God for help and I cleaned up," McKim said. "And I'll always be there to help others struggling to stay straight." Ray Smith, an assistant public defender, called McKim a true advocate for the poor and working-class. "She's always said we are the last defenders of the (U.S.) Constitution and has always just cared about people in general," Smith said. "She clearly has believed in the cause of being a public defender." McKim said most of her clients were a pleasure to work for. Others, such as some violent and sexual offenders, were hard for her to stomach. Three of those former clients threatened violence against her. "I still gave them my best," McKim said. "I was there to ensure their rights to a fair and speedy trial." McKim said although she will no longer be allowed to practice law, she intends to continue being an advocate for the poor who are accused of crimes. (source: Marietta Times)
