September 3
MARYLAND: Death penalty has cost----Circumstances, resources guide Baltimore's policy Baltimore State's Attorney Patricia C. Jessamy has been consistent about what she says it takes for her to seek a criminal's death, something she has done just twice in her 11 years on the job. "It should be a case that is just so shocking to the conscience that it cries out for the death penalty," she said four years ago. Only a week ago, she reiterated that same point: "It should be reserved for those individuals who commit the most heinous crimes." But 2 recent Baltimore cases involving multiple murders are prompting some to ask: If not the death penalty now, then when? Raymont Hopewell pleaded guilty last month to raping and asphyxiating 3 women, ages 60, 78 and 88. He strangled another 78-year-old woman with his bare hands. He robbed and beat to death an 82-year-old deaf man. At least 5 other elderly victims also suffered his savage attentions in a 5-year span. Days before Hopewell's plea, Policarpio Espinoza and Adan Canela were found guilty of killing 3 children, ages 8, 9 and 10, whose throats had been slashed so deeply that they were almost decapitated. In neither of those cases - notorious for their brutality and for the vulnerability of the victims - did Jessamy seek the death penalty. The 3 men will be sentenced this month, likely to life in prison without the possibility of parole. "He's a mass murderer, and he got a plea deal," Ivan Wingfield says of Hopewell, his mother's killer. "This just shows that there is no death penalty in Baltimore. It's not fair." In her 16 years as a defense attorney, Margaret A. Mead represented 1 man for whom Jessamy thought death was appropriate and many others for whom death never arose as a possibility, though their crimes qualified. "It has almost been an unwritten policy not to go for the death penalty," she says. Jessamy has not categorically ruled out capital punishment. In 1998, she pursued it for Joseph R. Metheny, a man who claimed to have killed 10 people, dismembering and assaulting the bodies of his victims. She sought it again in 2004 for a man who shot to death Detective Thomas G. Newman. "We are seeking justice," Jessamy said. "There are many cases with heinous facts, but there's more to consider." Interviews with Jessamy and others suggest that her rare use of the death penalty is a result of a combination of considerations: resources, politics, policy and specific circumstances in some of the cases. Jessamy's approach is not a sharp departure from that of her most recent predecessors in the Baltimore state's attorney's office. Since the death penalty's reinstatement in 1978, city prosecutors have sought to use it only about 18 times in the thousands of homicide cases that have come across their desks, according to veteran city homicide prosecutors. No statistics are kept. In the 1980s, Kurt L. Schmoke only occasionally pursued the death penalty, and Stuart O. Simms, who flatly opposes it, even less so. Simms sought the death penalty 3 times. Jessamy, though she says she is not philosophically opposed to capital punishment, has trimmed its use further. Her record is particularly conspicuous because of adjoining Baltimore County, where State's Attorney Sandra A. O'Connor maintains a policy of seeking death in nearly every case that legally qualifies. Right now, there are 7 active death-penalty cases - more than the city has seen overall in the past 2 decades. A matter of money Some say budget problems are the biggest obstacle to more death penalty cases in the city. As Donald J. Giblin, a veteran city homicide prosecutor, says, "I don't have a moral problem with the death penalty; I have a resource problem with it." Death penalty proceedings stretch out over the years and are hugely expensive, with the trial and penalty phases costing at least $500,000, prosecutors estimate. And that doesn't take into account what can become decades of appeals. Jessamy says an informal office analysis showed that about 10 % to 15 % of 200 or so city homicide cases that come across prosecutors' desks each year qualify for the death penalty under state law. That translates to more than 500 possible capital cases since 1978. Jessamy's defenders say she couldn't possibly seek capital punishment in all of the crimes that are eligible. "The system would crash," says Baltimore Circuit Judge Timothy J. Doory, a former assistant state's attorney and the city's most experienced death penalty prosecutor. Even a death penalty conviction means long years of appeals with no guarantee that a killer will be executed in the end. "Most of the time," Jessamy says, "the death penalty doesn't give you closure." She often refers to the case of John Booth-El, the only Baltimore man on death row, when she speaks to the families of homicide victims who favor the death penalty. "23 years, and still this matter is pending. They need to know that," she says. John Booth-El and an accomplice killed 78-year-old Irwin Bronstein and his wife Rose, 75, in 1983. A city jury sentenced Booth-El to death Oct. 16, 1984. But that was only the beginning. The sentence was overturned in 1987 by the U.S. Supreme Court, reinstated after a 2nd trial in May 1988, overturned by the state Court of Appeals in 1989 and reinstated after a 3rd trial in August 1990. The odds that 3 separate city juries would sentence a man to death were remote, "almost an impossibility," in the words of veteran city prosecutor Mark L. Cohen. Even so, Booth-El still has not been executed, and Jessamy says she is angry that the Bronsteins, who have attended every court proceeding, "still haven't gotten justice." In Jessamy's sparing use of the death penalty, many say, she reflects the desires of her community. Baltimore residents - the people who elect the state's attorney who would seek death, and the people on the juries who would impose death - are not as comfortable with capital punishment as are other state residents, prosecutors and defense attorneys say. Baltimore County, in addition to having a smaller workload of criminal cases and therefore better financial resources than the city, is a more conservative community that has encouraged O'Connor's policy. The result is that defendants in the county are 13 times more likely to face capital punishment than in the city, according to the 2003 state-sponsored study by University of Maryland professor Raymond Paternoster. "The death penalty equals politics. It's not about the justice system," says Mead, who represented Metheny. "Jessamy is responding to her constituents, and Sandra O'Connor is responding to hers." Robert Blecker, a New York Law School professor who advocates the death penalty only for "the worst of the worst" and has studied its application in cities such as Washington and New York, says race plays a role in a person's view of capital punishment. "The black community's view of the death penalty is more subtle and nuanced," he says. "It's a community that understands the street realities that produce the killings. They often realize that the defendant could just as easily been the victim, so they think, 'Why compound the tragedy with more death?'" Race is a factor that Booth-El has raised in his latest effort to avoid lethal injection. Booth-El is black; his victims were white. In a pending post-conviction appeal, his lawyers point to 26 other death penalty-eligible cases - including those of a man charged with murdering his girlfriend and her daughter, and a man charged with the rape and murder of a 93-year-old woman - in which death was not pursued. In those cases, the victims were black. That's a perspective shared by John W. Wingfield, 81, whose wife of 44 years, Lydia, was raped and strangled by Hopewell. "If [the victims] were white, he would get the death penalty, no question about it," he says. "That's why we have so much killing in black neighborhoods, because nobody cares when a black person is killed." Jessamy, her prosecutors and some defense attorneys say race is a non-issue. In the 2 capital cases brought by Jessamy, Newman and his killers were black, and Metheny and his victims were white. Offering some closure The policies of Jessamy and her predecessors, say Schmoke and Doory, might be less formulaic than O'Connor's, but they're more realistic for Baltimore City. By taking death off the table, Jessamy insists, in many cases she is able to deliver a measure of closure to victims' families. She says she often turns to life without the possibility of parole, which became a sentencing option in 1987, in cases that otherwise would qualify for the death penalty. "That gives you assurance that they're not going to be out on the street again," she says. Some Baltimore juries also seem to regard life without parole - rather than death - as the ultimate punishment. Newman was ambushed and shot to death in November 2002 as he left a Southeast Baltimore bar. His relatives were "ardent" in their view that the 2 men accused of shooting him should be put to death, says Giblin, the prosecutor in the case. Jovan House was the 1st to stand trial, in February 2004. Giblin says jurors told him he had proved House was guilty, even proved House qualified for the death penalty. "But they told me, 'We think he'll suffer more if he spends the rest of his life in jail. We don't consider our verdict a merciful one. We consider it just the opposite - a merciless one,'" Giblin says. After that trial, even Newman's family agreed with the decision to abandon the death penalty and give the second shooter a plea deal of life without parole, Jessamy says. Giblin has tried two other cases in which juries have declined to impose capital punishment. "It's my impression that jurors are looking for reasons not to give the death penalty," he says. In Maryland, not every 1st-degree murder - even some with shocking elements - can become a capital case. No one under age 18 or deemed mentally retarded is eligible for the death penalty. Prosecutors must prove the existence of at least one of 10 "aggravating circumstances" spelled out in the state law. Circumstances include participating in a contract killing, killing an on-duty police officer or correctional officer, killing inside a correctional facility, killing more than 1 person during the same incident or killing someone while committing or trying to commit an arson, carjacking, rape, robbery or sexual offense. Schmoke, in a recent interview, says he took particular offense at people accused of killing law enforcement officers. Under Schmoke's watch, Flint Gregory Hunt ambushed Baltimore police Officer Vincent J. Adolfo in an alley and shot him to death. Hunt was executed in 1997. "Killing police officers, to me, is an attack on society," Schmoke said. In all instances except contract killing, prosecutors must prove that the defendant was the "principal in the 1st degree" - meaning, the actual killer. This is how Policarpio Espinoza and Adan Canela escaped capital punishment. Canela was 17 when the children were slain May 27, 2004, in Northwest Baltimore, making him ineligible. Espinoza was 22. DNA and other evidence might have pointed to Canela and Espinoza as the killers, but the evidence did not specify which man killed which child. Prosecutors would not have been able to prove that Espinoza was the "principal in the 1st degree." But even considerations such as resources, politics, policy and circumstances seem unable to explain the Hopewell case. In the view of Blecker, who has studied serial killers, Hopewell "unquestionably deserves the death penalty" because of the torturous way in which he is alleged to have killed his victims. He was eligible for death in 4 of the 5 killings to which he pleaded guilty last month. As part of the deal, he will receive 4 consecutive terms of life without parole and hundreds more years in prison time. The evidence seemed solid. Police said they have DNA - semen in bodies, saliva on cigarettes and soda cans - and fingerprints linking him to each crime with which he was accused. Hopewell confessed to killing Carlton Crawford, 82, during a robbery, and he put himself at the scene of 78-year-old Lydia Wingfield's rape and killing. Jessamy said she could not discuss Hopewell's case because he has not been sentenced. She met with relatives of Hopewell's victims to tell them of her decision. But Ivan Wingfield is not satisfied, and he plans to convey his anger at Hopewell's Sept. 14 sentencing hearing. "This was a slam-dunk case. The judge, the state's attorney, I'm going to let them all know that they have dropped the ball for our family and for the citizens," he says. "The day we go to sentencing will be the saddest day in Baltimore." (source: Baltimore Sun) WASHINGTON (state): Death penalty a costly proposition A possible death penalty case that has dragged on for more than a year and a half and has cost Yakima County taxpayers more than $1.1 million in defense costs is still months away from trial. It's "possible" because Prosecuting Attorney Ron Zirkle has yet to decide whether to seek the death penalty against 2 men accused of aggravated 1st-degree murder in the Feb. 20, 2005, shooting deaths of 21-year-old Ricky Causor and his 3-year-old daughter, Mya. Considering that Zirkle might elect not to seek the death penalty, the delays and enormous costs in the case have caused plenty of grumbling at the courthouse. The county has not had a death penalty trial since 1989. Zirkle says there's not much he can do about it, blaming the delays and mounting expenses on an informal statewide practice based on case law that forces prosecutors to consider mitigating circumstances before seeking the death penalty. To avoid being overturned on appeal, trial-level courts tend to give defense attorneys free reign and, some say, a blank check. "The way case law works is not cost-efficient and I wish something would be done to make it more cost-efficient," Zirkle says. "But I'm not even allowed to know what (defense attorneys) are spending the money on. In fact, the trial judge doesn't even know. That's being done by another judge. "If someone wants to say this doesn't look like a very good system, I would agree with that. I didn't create it and I can't change it." Most of the defense spending in the case has been on behalf of Junior Sanchez, 1 of 2 suspects in the Causor attack. To date, his attorneys have billed the county $857,331.02 in pretrial expenses. Investigators say Sanchez and co-defendant Mario "Gato" Mendez were responsible for the execution-style slayings of 3-year-old Mya and her young father during a drug rip-off at the Causor family's apartment on South 18th Avenue. Also wounded in the attack was Ricky Causor's girlfriend, Michelle Kublic, who was shot four times while shielding the couple's other daughter, 2-year-old Angelica, from the gunfire. Sanchez, 25, was arrested within a few days. Mendez, 26, eluded immediate capture by fleeing the country. He was arrested in October after he was caught trying to sneak back at the Mexican border. Investigators have described the savage attack as the crowning achievement of an upstart street gang intent on making a name for itself through violence and intimidation. The gang has been linked to the unsolved murder of a 32-year-old Yakima woman weeks before the Causor attack, as well as a string of armed robberies. Aggravated murder is the only charge in Washington punishable by death. By law, prosecutors have 30 days from arraignment to file notice of intent to seek execution. However, the deadline can be extended indefinitely if the defense requests it. That's exactly what has happened in the Causor case 3 times so far. Sanchez's defense attorneys, Jackie Walsh and Steve Witchley, initially were given a full year to compile a report on their client called a mitigation packet. Walsh and Witchley were picked from a short list of lawyers in Washington qualified to try death penalty cases. Walsh, Sanchez's lead counsel, once negotiated a plea bargain in a King County case that spared an accused cop-killer the death penalty. According to published reports, that case took three years to resolve and cost King County more than $1 million. Like many defense attorneys in the state, Walsh also once predicted the plea deal that spared the life of Green River killer Gary Ridgway would effectively take the death penalty off the books in Washington. The state Supreme Court has since rejected that argument. Walsh could not be reached for comment for this story. The first deadline in the Sanchez case came and went in April. The second passed Friday. The latest deadline which Yakima County Superior Court Judge Jim Hutton warned is the last is scheduled for Sept. 29. Zirkle would then have until the end of October to decide whether to seek the death penalty. The trial is now scheduled for Nov. 30. That's the latest plan, anyway. Zirkle says his office has opposed both extensions of the deadline but isn't really in a position to say no, fearing a reversal on appeal. All defense costs in the case have been sealed by court order. Meanwhile, the defense team for Mendez has spent more than $248,000 in his case, which is tentatively set for trial Nov. 27 but will almost certainly be postponed. Zirkle concedes that he could have decided not to seek the death penalty from the beginning and saved taxpayers a lot of money. The only alternative sentence in an aggravated murder case is life in prison without parole. However, by law once he elects not to seek the death penalty he can't change his mind, no matter what investigators learn as the case intensifies and the facts become clearer. Because counties, and not the state, pay for death penalty cases in Washington, the cost in both cases is now straining Yakima County's budget. A state law allows counties to ask Olympia for help after the fact, but reimbursement is not automatic. "This has gone on a lot longer than I expected. We're spending more money than I anticipated, and I'm being criticized," Zirkle observed, adding, "Unfortunately, this is not unusual in a death penalty case." (source: Yakima Herald-Republic) US MILITARY: 4 Soldiers Eligible for Execution if Convicted 4 U.S. soldiers accused of murdering 3 detainees during a raid in Iraq in May are eligible to receive the death penalty if convicted, a military investigator has determined. In a report summarizing the military equivalent of a grand jury investigation, Lt. Col. James P. Daniel Jr. concluded that four members of the 101st Airborne Division deliberately killed the detainees and then tried to cover up by making it look as if the prisoners had attempted to escape. The four soldiers, Staff Sgt. Raymond L. Girouard, Spc. William B. Hunsaker, Pfc. Corey R. Clagett and Spc. Juston R. Graber, say they are innocent, and lawyers for 2 of the men called the death penalty eligibility egregious. "They are trying to say these are just rogue soldiers and this has nothing to do with battle stress or orders. We disagree," Michael Waddington, Hunsaker's civilian lawyer, said Saturday. The 3 men who were killed have not been identified. They are referred to only as "detainees of apparent Middle Eastern descent" in the investigator's 10-page report. A copy of the report, dated Aug. 31, was obtained by The Times on Saturday. Army spokesmen in Iraq and Washington declined to comment. The report findings were first disclosed Saturday by the Associated Press. At least 20 U.S. service members have been charged in connection with the deaths of Iraqis in the war. Most cases have resulted in acquittals or conviction on lesser charges. Military executions are rare. The last soldier to be put to death - for rape and attempted murder of a child while the soldier was stationed in Europe - was hanged in 1961. The final decision to carry out a military death sentence must be affirmed by the president. In 1997, then-President Clinton authorized life in prison without parole as an alternative to death. Among the few on military death row at Ft. Leavenworth, Kan., is ex-Army Sgt. Hasan Akbar, convicted of killing 2 service members and wounding 14 in an attack on his own base at the start of the Iraq war. The killing of the 3 detainees has raised questions that go beyond the four accused soldiers. The military is also investigating whether Col. Michael Steele, commander of the 101st Airborne Division's 3rd Brigade, encouraged unrestrained violence and condoned a culture of racism among his troops. Investigators have said that Steele handed out knives to his soldiers as rewards for killing insurgents. All 4 of the accused were members of his brigade. Steele, a storied officer who led the Somalia rescue mission recounted in the book and movie "Black Hawk Down," has been issued an administrative reprimand. He denies the accusations and is fighting the disciplinary action against him. The May 9 raid targeted insurgents believed to be operating on an island near Samarra, in the vicinity of a chemical complex. According to testimony at the investigative hearing, the U.S. soldiers taking part in the raid believed they were under orders to kill all military-age men. The 3 detainees who were killed had been taken into custody and bound with plastic handcuffs. Pfc. Bradley L. Mason testified that the 4 accused soldiers had taken the detainees out of a house they were searching and had indicated they were going to kill them. Mason, who had already shot and killed one man standing in a window, said he remained behind. Mason testified that he heard gunfire. He said one of the accused soldiers told him the detainees had broken free and attacked, forcing them to shoot. The same soldier later told him that the escape story was made up, Mason testified. Mason also said he was threatened and pressured to keep quiet about the incident. The investigator's report charged the accused soldiers with "staging the murder scene" to make it look as if the detainees had cut Hunsaker with a knife and hit Clagett as they purportedly tried to escape. Clagett's civilian lawyer, Paul Bergrin, suggested it was Mason who was not telling the truth. "Hunsaker was cut and stabbed; Clagett was hit in the face," Bergrin said Saturday. "The detainees cut themselves free while in the course of trying to escape. Using reasonable and necessary force, [the accused soldiers] shot and killed 3 detainees who were known terrorists." Bergrin said his client and the other soldiers were being prosecuted "because of the political climate," and he said they would be acquitted at court-martial, which is expected to take place at Ft. Campbell, Ky., the home base of the 101st Airborne. The 4 have been jailed in Kuwait since their arrests. (source: Los Angeles) *********************************** Officer calls for death penalty in Iraq slayings----4 U.S. soldiers claim self-defense An Army investigator has recommended that 4 soldiers accused of murder in a raid in Iraq face the death penalty if convicted, according to a report obtained Saturday by the Associated Press. Lt. Col. James P. Daniel Jr. concluded the slayings were premeditated and warranted the death sentence based on evidence heard at an August hearing. The case will be forwarded to Army officials, who will decide whether Daniel's recommendation should be followed. The soldiers, all from the Ft. Campbell, Ky.-based 101st Airborne Division's 187th Infantry Regiment, are accused of killing 3 Iraqi men taken from a house May 9, on an island outside Samarra, about 60 miles north of Baghdad. Staff Sgt. Raymond L. Girouard, Spec. William B. Hunsaker, Pfc. Corey R. Clagett and Spec. Juston R. Graber have claimed they were ordered to "kill all military-age males" during the raid. According to some soldiers' statements, they were told the target was an Al Qaeda training camp. Hunsaker told investigators that he and Clagett were attacked by the men and shot them in self-defense. Clagett said he was hit in the face, and Hunsaker said he was stabbed during the attack. Prosecutors argue the soldiers conspired to kill the men and then altered the scene to fit their story. They contend Girouard stabbed Hunsaker as part of the killing plot. Clagett, Girouard and Hunsaker also are accused of threatening to kill another soldier who saw the slayings. Girouard, the most senior soldier charged, faces several additional charges, including sexual harassment and carrying a personal weapon on duty. The 4 are jailed in Kuwait. (source: Associated Press) SOUTH CAROLINA: 7 who are no longer on death row Holman Gossett is out of public office, but the former solicitor's death penalty cases aren't out of the courthouse. During his 2000 primary campaign, the then-Seventh Circuit solicitor boasted that he had sent 9 people to death row, plus one whose sentence was overturned, during his 16 years as top prosecutor for Spartanburg and Cherokee counties. Of those 10 men, 7 are temporarily or permanently off death row, including 5 cases involving prosecutorial misconduct. The latest reversal came Aug. 22, when Circuit Judge John C. Few threw out the death sentence of a Woodruff man because neither Gossett nor defense counsel informed the trial judge that a state witness was also a client of defense attorney Andy Johnston. The order means Jimmy Clifton Locklair, convicted in 1998 of murdering his ex-girlfriend in 1995, will return for a new sentencing hearing in a crime now more than a decade old. Statistics on the average number of death penalty cases overturned because of misconduct from prosecutors are hard to come by. Other solicitors in South Carolina have seen similar ratios of cases overturned because of prosecutorial misconduct, said Miller Shealy, a Charleston School of Law professor and former state and federal prosecutor. The death-penalty reversal record under Gossett, while not "terribly striking," also isn't run-of-the-mill, Shealy said. "It's not a good record," he said. "But to what extent someone is blameworthy, in the bad sense of the word, that depends on a careful examination of each of the cases." Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, said Gossett's record appears to reflect an unusually high number of death penalty cases reversed because of misconduct by prosecutors. "A defense attorney who had violated the rules that number of times would certainly be subject to some sort of sanctions," Dieter said. Gossett has no disciplinary history in South Carolina, said Henry Richardson with the state Office of Disciplinary Counsel. But findings of prosecutorial misconduct by a judge also can include simple errors by prosecutors and don't necessarily rise to the level where sanctions would be warranted. Mistakes, intentional or not, often are made "in the heat of the battle" between prosecutors and defense attorneys, said Ashley Pennington, former chief public defender for Charleston County and a defense attorney since 1980. "It's surprising how often mistakes are made, either deliberately or inadvertently by both sides," he said. "It's also surprising how so many of those mistakes are important mistakes that could change the outcome." Cases overturned Circuit and S.C. Supreme Court judges have found a wide swath of wrongdoings by Gossett or his assistants in the 5 overturned cases involving prosecutorial misconduct. The state Supreme Court overturned the murder conviction and death sentence of Jesse Keith Brown in 1986 in part because Gossett improperly questioned Brown about his lack of remorse, even though he maintained his innocence, and about his self-representation during trial, the court ruled. In 2002, a circuit judge vacated the death sentence of Keith LaSean Simpson, sentenced in September 1994 for the murder of an Enoree storeowner, on grounds of lack of effective defense counsel. The judge also said there was a strong possibility that prosecutors improperly influenced a 10-year-old boy's testimony in favor of the state. Prosecutorial misconduct also was cited as a factor in reversing either the murder convictions or sentences of Ernest Matthew Riddle, first convicted in 1986 for the murder and armed robbery of 76-year-old Abbie Sue Mullinax the year before, and Theodore Kelly, sentenced to death in 1995 for the shooting deaths of his estranged wife and her daughter's fianc. In 2003, Circuit Judge Larry R. Patterson overturned Kelly's 1995 death sentence on grounds including juror bias, ineffective defense counsel and improper action by the judge in Kelly's trial. Patterson's findings of prosecutorial misconduct included: prosecutors "improperly and unconstitutionally selected" then-Circuit Judge Gary E. Clary to preside over the trial; failed to disclose information about a biased juror; used race as a factor in deciding to seek the death penalty; and improperly used Kelly's state psychiatric files during a cross-examination. In the case of Brad Williams, who initially received life in prison in a non-capital murder trial in 1995, the conviction was overturned when the state Supreme Court ruled prosecutors had intimidated a potential defense witness. Gossett said he could not remember the particulars of most of the cases but always acted with the best intentions and never committed an intentional wrongdoing in prosecuting a death penalty case. "When you're going through the process and you're in the moment, maybe decisions could have been made better," he said. "But we did the best we could and made a sincere effort at it." In all cases, Gossett said, his goal was to seek justice and reach justice in the proper fashion. "I did the best I could in handling the matters and tried to play by, proceed by the rules." Death penalty cases receive much higher scrutiny than non-capital convictions, he noted, allowing the judicial system more room to find error in a proceeding. That level of oversight, like the law, constantly changes, said Shealy, the Charleston professor. He likened prosecuting a capital case today to building a castle on shifting sand. Only two men sentenced to death under Gossett have paid the ultimate penalty. The state executed David Rocheville and Richard Longworth in 1999 and 2005, respectively, for the 1991 murders of two employees at WestGate Mall Cinema IV. Andre Kevin Rosemond, convicted in March 1996 in the 1993 murder of his girlfriend and her 10-year-old daughter, remains on death row. When time is the enemy Nothing in the criminal justice system, current Solicitor Trey Gowdy holds, gets better with time. Problems with retrying cases include locating witnesses, proceeding without witnesses or law enforcement officers who have died and convincing witnesses who have moved on with their lives to testify. Memory fades for witnesses and officers alike, said Gowdy, who defeated Gossett during the 2000 Republican primary. The dramatic progress in forensic science means potential DNA evidence was not collected 20 years ago to the extent it is today in homicide investigations, he said. "You're trying a 20-year-old case with 20-year-old memories and 20-year-old evidence collections, and it's being held to a standard of 2006, and that is an almost impossible task." The "sense of community outrage" over brutal murders also tends to dissipate as the years tick past. People forget, move away, and new residents move into the area. Potential jurors might have been in diapers when the crime occurred. That poses another problem for prosecutors, Gowdy said. "How do you recreate the feeling a community had after a decade?" Law enforcement officers often are forced to base their testimony on old notes rather than fresh memories, Spartanburg County Sheriff Chuck Wright said. And many jurors want to see forensic evidence. "People expect science to play a big part in trials today, and you keep having to remind people this wasn't available back then," Wright said. Tony Fisher, Spartanburg public safety director, said good investigators did collect trace evidence and other forensic materials decades ago. But some evidence can be lost over the years or deteriorate so that it cannot be properly tested. Most major homicide cases are assigned to senior investigators at the time of the crime, Fisher said. They likely have retired or moved away 20 years after the fact. Cost becomes a factor. "The issue -- assuming they're not deceased -- is the resources to fly them back and have them here over a period of time, in decent living conditions," he said. Death penalty trials can cost hundreds of thousands of dollars. That includes the regular time and cost of prosecutors, law enforcement and judges, but also flying in experts, hiring jury consultants and paying to sequester a jury. "It's undeniable that when there is a reversal, you go back to square one," said Pennington, the former Charleston County public defender. "It's costly and emotional to everyone who's connected to this case -- the victim's surviving family, the family of the witnesses, the witnesses themselves, the defendant, the defendant's family, etc. It's a very burdensome thing." Gowdy said he expects some of the death penalty cases that have come back to his office might not be resolved until 2008. Before 'real life' In the Riddle death penalty case, the murder occurred on Aug. 8, 1985, in Cherokee County. His death sentence was reversed twice after his initial conviction, but 2 additional trials reinstated it. In May 2006, the state Supreme Court granted Riddle, now 39, a new trial. The ruling held that prosecutors violated Riddle's right to a fair trial by withholding information from defense attorneys and failed to correct testimony by a key witness for the prosecution that they knew to be false. Gossett said he tried the Riddle case conscientiously at the time. "I don't remember doing any of that, but it's been a long time since I tried it," he said. Riddle now will return to Cherokee County for trial. But because the crime occurred before the option of "real life" without parole was instituted in South Carolina for crimes committed before 1996, Riddle could be released from custody any day if convicted of murder but not given the death penalty. If convicted of non-capital murder, Riddle could be eligible for parole in light of 20 years time served. That's unacceptable not only to Gowdy, but to many relatives of crime victims. "I do sit there with families that have been litigating crimes that now took place 20 years ago, 15 years ago, 10 years ago," he said. "They are clearly frustrated with the criminal justice system -- and understandably so." (source: Spartanburg Herald Journal)
