[Deathpenalty] death penalty news-----MD., CALIF., S.C.

[Rick Halperin]

July 20



MARYLAND:

Home grown spies----Our view: State Police unit overstepped its bounds


As revealed in a series of computer logs, the undercover operations of a
Maryland State Police unit are an embarrassing assault on citizens' rights
to peacefully protest the actions of their government. Hundreds of hours
spent spying on a bunch of peaceniks and death penalty opponents who meet
to drum up support for their causes? The idea that these groups,
identified in state documents obtained by the American Civil Liberties
Union of Maryland, were potential threats would be laughable if it wasn't
scary. What's truly chilling is that the same State Police unit behind
these misguided operations is still in business.

As the ACLU has shown all too clearly, domestic spying is not solely the
preoccupation of the Bush White House. The Maryland branch sought
government documents after learning about surveillance work by a
"Baltimore intel unit," information revealed in the criminal prosecution
of a peace group. In 2005 and 2006, members of the Homeland Security and
Intelligence Division dispatched undercover agents to meetings and events
of the Baltimore Pledge of Resistance, an anti-war group, the Baltimore
Coalition Against the Death Penalty and the Committee to Save Vernon
Evans, a death row inmate.

What's egregious, and potentially unlawful, is that they monitored the
groups even though they observed no illegal or criminal activity by them.
Investigators kept detailed notes about the political views and activities
of individuals. A serious consequence of this unchecked, unwarranted
surveillance is that the names of innocent Marylanders may have been
entered into a slew of federal law enforcement databases, including a drug
trafficking one.

The surveillance took place under a previous administration. And while
Gov. Martin O'Malley and State Police Superintendent Terence B. Sheridan
said the police units haven't interfered with citizens who lawfully
exercise their free speech rights, they should have condemned this
operation as a huge waste of taxpayer dollars. They also should
investigate how the surveillance began and why it continued so long in the
absence of any criminal activity.

The State Police should make public data on any other group its spied on
unnecessarily. And every effort should be made to remove from federal
databases the names of innocent individuals targeted by the police unit.
Their reputations have been needlessly sullied.

(source: Editorial, Baltimore Sun)






CALIFORNIA:

Experts say Alvarez death penalty arguments fell short


Legal and capital punishment experts say prosecutors who argued strongly
for the death sentence for 29-year-old convicted murderer Juan Manuel
Alvarez had little chance of winning that recommendation from the jury.

On Tuesday a jury of 9 women and 3 men rejected the prosecution's call for
the death penalty, instead believing the defense's contention that Alvarez
had not meant to kill or harm anyone. The panel sentenced him to life in
prison without the possibility of parole for the deadly Jan. 26, 2005,
crash.

Experts say prosecutors failed to make their case for death - but note
that they also were up against a high standard of proof and faced a
defendant with a sympathetic personal story that in the end helped spare
his life.

"The evidence, the story the prosecution told about the defendant's intent
to kill people, didn't persuade the jury," said Peter L. Arenella, a UCLA
law professor and expert on criminal procedure who followed the case.

"The jurors who were interviewed made it pretty clear that while they felt
he was doing something terrible to attract attention, it wasn't his desire
to kill anybody on that train," Arenella said.

"And without that type of intent to kill, generally juries are going to be
reluctant to impose the death penalty when you have the alternative of
life imprisonment without any possibility of parole."

Diane Marie Amann, a University of California, Davis, law professor, said
prosecutors were also unable to convince the jury Alvarez deserved death
because of his horrendous childhood - having been beaten repeatedly by his
father and sexually molested by an uncle.

"I think that although you have the tragedy of so many lives lost, you
also have some very troubling information about the defendant," said
Amann.

"And we reserve capital punishment in California for people who truly are
the worst of the worst and have not only caused great loss of life but
have done so in a very evil state of mind. And what was learned about this
defendant in the course of the trial is that he's very troubled."

Ellen Kreitzberg, associate professor of law at Santa Clara University's
School of Law and an expert on capital-punishment law, raised another
issue.

"I think the more interesting question is why the prosecutor decided to
pursue the death penalty in this particular case," said Kreitzberg. "Even
though there were a number of people who lost life, it at least appears
even from an objective look at the evidence and from the jurors'
statements that this was predicated on a felony murder - the fact that it
was a felony and people died without any intent to kill being shown by the
defendant.

"I think we should be asking whether or not prosecutors should be thinking
more carefully or more thoughtfully about seeking the death penalty where
they are not really making a showing of any intent to kill."

Lawyers said that under the state's felony murder rule a defendant found
guilty of intending to commit a crime in which someone dies - such as
arson in Alvarez's case - is held liable for murder even if he did not
intend to kill anyone.

In explaining their sentencing decision after only about 3 hours of
deliberations, the three male members of the jury said they likely would
not have even convicted Alvarez on the 11 counts of first-degree murder in
the eight-week trial if it had not been for the felony murder rule.

Pressed on what the jury would have convicted Alvarez of had there been no
arson, the foreman said: "If there was no arson, second-degree murder, or
I won't go there."

Deputy District Attorney John Monaghan did not return a call seeking
comment on whether prosecutors considered not seeking the death penalty in
the Alvarez case.

But in a written statement after the sentencing, District Attorney Steve
Cooley appeared to address the issue.

"Given the human suffering and loss of life inflicted by Alvarez, this
case was appropriately put before the jury for a penalty decision," Cooley
said.

Elisabeth Semel, director of the Death Penalty Clinic at Boalt Hall, the
University of California School of Law at Berkeley, said there is never an
easy answer in pursuing death penalty cases.

"When a jury deliberates on sentencing in a murder case where the death
penalty is under consideration, the fact that it is a death penalty case
shows that the murder or murders were horrendous enough to warrant its
consideration - but that does not mean that the death penalty is
automatic," said Semel.

"A jury takes many things into consideration in its deliberations, and
there is no question that there is often an uphill battle for the
prosecution and that the death penalty is not a foregone conclusion."

Superior Court Judge William R. Pounders set Aug. 20 as the date on which
he will formally sentence Alvarez.

University of Colorado at Boulder sociologist Michael Radelet, one of the
nation's leading criminologists and most-cited experts on the death
penalty, said that often the extent or even the depravity of the crimes
alone does not guarantee death sentencing convictions.

"This case reminds me a great deal of the Jeffrey Daumer case in Wisconsin
where so much emotional testimony was allowed during the sentencing phase
but Daumer wound up (with) 15 life terms in prison and eventually died
there," said Radelet.

"In this case, the jury agreed that this guy is going to die - it's just
going to be in prison and a few years down the road."

(source: Los Angeles Daily News)





SOUTH CAROLINA:

Creation of rape-death penalty statute was bad politics


In Kennedy v. Louisiana, the U.S. Supreme Court held that the Eighth
Amendment bars imposition of the death penalty where the crime does not
result in the victim's death.

Order a Reprint Only six states, including South Carolina, have statutes
providing for the death penalty in child rape cases. The enactment of
South Carolina's statute was a perfect example of bad politics controlling
legislation. In the wake of some horrific and high-profile child rape
cases followed by the media, some legislator decides that it will be great
PR to campaign for the death penalty for these monsters. Once the
legislation has been introduced, no politician wants to vote against it
because, hey, it is pretty good PR, and you are either for it or you are
in favor of the child rapists, which certainly does not win you any votes.

Although the politicians and some victim advocates speak out about how
they want the death penalty for child rapists, and it makes a good sound
byte during election time, the Supreme Court of the United States points
out that there is a national consensus against the death penalty for child
rape.

Since the court's 1972 decision in Furman v. Georgia, nine states have
permitted capital punishment for adult or child rape, and yet no person
has been executed for any non-homicide offense since 1963. Louisiana is
the only state that has sentenced a person to death for child rape,
resulting in the opinion in Kennedy: Despite rape's permanent and
devastating impact on a child, "in terms of moral depravity and of the
injury to the person and to the public, (non-homicide crimes including
child rape) cannot compare to murder in their severity and
irrevocability."

The court looks at whether the death penalty for child rape would serve
the purposes of retribution and deterrence. Looking at retribution, the
death penalty will not lessen a rape victim's hurt, given that capital
cases require a long-term commitment to testify for the prosecution over a
period of many years. By enlisting a child victim to assist in seeking the
death penalty over the course of years "forces a moral choice on the
child, who is not of mature age to make that choice."

The goal of deterrence is not furthered because "evidence suggests that
the death penalty may not result in more effective enforcement but may add
to the risk of non-reporting of child rape out of fear of negative
consequences for the perpetrator, especially if he is a family member."
Also, by making the punishment for murder the same as the punishment for
rape, it gives the rapist an incentive to kill the victim.

The court takes note of the "relevant systemic concerns in prosecuting
child rape, including the documented problem of unreliable, induced and
even imagined child testimony, which creates a special risk of wrongful
execution in some cases."

There are many problems with cases involving child testimony. Child
molestation cases often arise in the context of divorces and custody
disputes, and there are often problems with the testimony. One problem
that arises quite often is the problem of suggestive interviewing
techniques with children and the problem of repeated interviews.

I have seen cases where the interviewer asks the child leading questions
(suggestive of the answer), the child denies the allegations, and the
interviewer continues asking the same leading question in different ways
or keeps coming back to the question, until the child gives the answer the
interviewer is looking for.

This can be compounded by the effect of multiple suggestive interviews,
often beginning with a family member who may be suspicious or have an ax
to grind, followed possibly by other family members, followed by an
officer and then one or more interviews by a child advocate.

The effect of suggestive interviews on a very young child, particularly
when they are repeated, is that the child may begin to believe the
allegations, even if they were not true to begin with. The state then has
a very credible and believable witness with which to prosecute its case.
In South Carolina and other states, laws have been passed that would allow
the presentation of videotaped testimony by the child in court - without
the opportunity to cross-examine and in violation of the right to confront
witnesses.

The dangers of a prosecution for child rape, particularly when there is no
corroborating evidence, should be clear. Juries do not want to take any
chance on releasing a person who might then hurt more children. Due to the
prejudicial nature of the accusations, defendants are often presumed
guilty as soon as they are accused, and it is an uphill battle to
demonstrate the flaws in the case and to get beyond the preconceived
notions of the jury.

The court made the right decision in Kennedy, but it is still disturbing
that four of nine justices voted to allow states to kill defendants under
these circumstances.

(source: Bobby G. Frederick of Myrtle Beach is a criminal defense
attorney; Spartanburg Herald Journal)