[Deathpenalty] death penalty news----N.J., N.C., PENN., MISS.

[Rick Halperin]

June 10


NEW JERSEY:

Judge's critique pounds system----Suspension fails to calm Mathesius


If anyone thought a monthlong suspension without pay would cure Mercer
County Judge Bill Mathesius of his irreverent outspokenness and sarcastic
courtroom demeanor, they were wrong.

6 months after the state Supreme Court ordered Mathesius to take time off
to ponder his caustic judicial manner, the self-proclaimed "impolite and
impolitic" jurist has published his reflections in a scathing critique of
the state judicial system.

Posted online by New Jersey Lawyer, a trade publication, the missive
accuses the state's highest court of an "assault on judicial independence"
and calls its disciplinary panel "a judicial SWAT team of scolds."

The 66-year-old judge was suspended in December for violating the canons
of judicial conduct for remarks to jurors, a letter and comments to other
judges, and a controversial opinion he wrote in 2002 upholding the
conviction of death-row inmate Ambrose Harris.

In his online missive, Mathesius admitted he has a "tendency to shoot off
my yap," but said he was targeted for his temerity to criticize the
state's death penalty.

He expressed outrage that the Supreme Court has stricken that opinion from
the judicial record.

"For a court -- never mind the Supreme Court of New Jersey -- to so
indulge was, at the very least, a violation of democratic etiquette, if
not a rather disingenuous expedition into censorship," Mathesius wrote. He
called the move "seemingly antithetical to any notion of the First
Amendment of the Constitution of the United States of America."

A message left on Mathesius' home phone was not returned yesterday. A
spokeswoman for the state Department of Judiciary declined to comment,
saying no one in that office had seen Mathesius' comments yet.

With his tongue firmly in cheek, Mathesius begins his online missive by
explaining that he accepted the court's suggestion for reflection. He said
he removed himself to a "remote and undisclosed location to encourage
contemplation."

"I subsisted on a Zen macrobiotic vegetarian diet, an occasional leaf or
two of organic radicchio and Evian water, foraging as best I could for
native fruits and nuts," Mathesius wrote.

The following essay, laden with contempt and laced with the very sarcasm
that got him into trouble in the first place, launches an extraordinary
attack on the state's legal system and the people who run it.

In it, Mathesius accused the high court of "ideological surveillance," and
of a "repressive and chilling practice of disciplining judges who write
opinions with which one or another or all Justices disagree."

"When I was sworn in nobody asked me to check my Constitutional rights at
the door," he wrote. "I wouldn't have. I didn't."

Mathesius goes on to mock the process in which he was called on to answer
for his judicial transgressions. He characterized his 1st meeting with
Chief Justice Deborah T. Poritz as an "absurdist skit."

"The Chief swept in, clad in diaphanous tulle and a high-fashioned
shatoosh," he wrote. "Her diamonte Harlequin glasses provided interesting
accent. The picture collectively brought to mind a hint of a mature Andrea
Dworkin with a touch of Dick Cheney."

In the ensuing hearing before the Advisory Committee on Judicial Conduct,
which Mathesius called a "mugging," the panel originally recommended a
six-month suspension, three without pay.

The high court eventually suspended Mathesius for one month without pay,
which cost the Hopewell Township resident $12,000 of his $141,000-a-year
salary.

"Thus underscored is the incipient ability of such a collection to
manipulate or chill what should be the otherwise unfettered expression of
a sitting judge," he wrote. "Judges beware."

Mathesius called his punishment "Fatwa Lite," saying he had been found
"guilty of a crime of opinion."

He said his First Amendment free speech argument was "categorically
rejected."

"The subject is, apparently, just too nettlesome, too indelicate, too
ineffable to handle," he wrote.

Mathesius has long been known for his courtroom theatrics and caustic
demeanor on the bench.

In February 2005 after a jury acquitted a man of gun possession, Mathesius
spoke to the jurors asking them, "What the hell were you thinking?"
according to testimony.

In a murder trial in 2004, Mathesius went into the jury room to dismiss
the jury late in the day without informing the assistant prosecutor or
defense lawyers. He later explained that he did so with a sheriff's
officer due to the security situation in the century-old criminal
courthouse. Later, when a defense lawyer objected, Mathesius snapped:
"Thank you. You can do that when you're a judge. I'll do it the way I do
it when I'm a judge."

"As harsh and unbecoming as that sounds, I may have compounded my
crassness with a sneer," Mathesius wrote in his reflective piece. "In any
event, he left the court weeping ..."

On another occasion Mathesius asked a defendant who had turned down a plea
bargain, "Are you nuts?"

Mathesius also wrote a letter to Appellate Division Judge Jane Grall
criticizing her reversal of a Hamilton robbery case, accusing her of
having engaged in a "folly" that "breeds a sense of Dickensian disrespect
of the law not only to its practitioners but to the general public at
large."

In his online piece Mathesius said he considered the letter "constructive,
if not helpful criticism."

"It was apparently not received in the same vein," he wrote. "The Letter,
however, was ungallant and was probably better unwritten, but if you can't
take a joke ..."

(source: The Times of Trenton)






NORTH CAROLINA:

Nifong case affects State Bar----Prosecutor's hearing not first to look at
N.C. officials withholding evidence


Many N.C. lawyers, starting with the state's attorney general, have
shunned Durham District Attorney Mike Nifong as a rogue prosecutor.

But when he faces a disciplinary hearing this week for his handling of the
sexual assault case arising from a Duke lacrosse team party last spring,
the entire State Bar will face judgment with him.

The N.C. State Bar, the state agency that licenses and disciplines
lawyers, will be on a symbolic trial for its own spotty history of
effective oversight.

As Nifong fights to save his law license, he goes before a bar battling
its own image problems.

The State Bar has disbarred about 170 lawyers since 1996. But never has an
N.C. prosecutor been deprived of the ability to practice law, even for a
single day, because of prosecutorial misconduct.

In 2004, the bar came under withering criticism for its tepid prosecution
of 2 lawyers from the state attorney general's office who put an innocent
man on death row.

In 2006, there was more uproar when the bar's judicial arm cited
technicalities to dismiss charges of misconduct against two more
prosecutors in a death penalty case.

This time, there is pressure for the bar to get it right.

Many people are expected to tune in to hear the testimony of Nifong,
police investigators and others involved with the lacrosse case who have
not been closely questioned in public.

Some observers will be at the state legislature.

The bar's past lapses have prompted legislators to discuss whether lawyers
should be trusted with the power to regulate themselves.

The State Bar has charged Nifong with a number of ethical violations:
making inflammatory statements out of court, misleading the public, hiding
DNA evidence favorable to the defense and then lying about it to the
court.

The last charge, withholding evidence, took center stage in the case of
former death row inmate Alan Gell, a Bertie County man wrongly convicted
of murder in a slaying that happened while he was in jail on unrelated
vehicle theft charges.

In that case, two prosecutors from the attorney general's office, David
Hoke and Debra Graves, withheld statements given by people who saw the
victim alive after Gell had been jailed. They also withheld a recording of
the state's star witness saying she had to "make up a story" for the
police.

The misdeeds of the prosecutors won Gell a new trial in 2002. With the
tape and statements available to him at retrial, Gell was speedily
acquitted.

The bar delivered a written reprimand to Hoke and Graves after a 2-day
hearing on misconduct charges. The lenient punishment was widely
criticized.

In response, the State Bar held a public meeting in October 2004 in a
downtown Sheraton hotel ballroom.

Dudley Humphrey, then-president of the bar, was met with derisive laughter
when he asserted Gell was not the victim in the prosecutorial misconduct
case. "The system was the victim," Humphrey said.

The bar appointed a panel to review the case and make recommendations for
handling future high-profile cases.

For Nifong's case, State Bar representatives early on contacted the three
exonerated lacrosse players: Dave Evans, Collin Finnerty and Reade
Seligmann. Seligmann, Evans' father and Finnerty's mother are expected to
testify.

The bar has turned to outside help, hiring Douglas J. Brocker, a lawyer in
private practice who built a reputation as a dogged and thorough
prosecutor when he worked at the State Bar. He is teamed with Katherine
Jean, the bar's top counsel.

For months, the 2 have pored over the extensive Nifong file and
interviewed key witnesses under oath.

But perhaps the biggest difference is a rule change prompted by the Hoke
and Graves case.

In 2004, the bar had the high standard of proving that the prosecutors
knowingly withheld evidence. Hoke testified that he had not read the
entire file and argued that the State Bar rules did not require
prosecutors to do so.

It will be much harder for Nifong to use that sort of negligence defense;
the State Bar changed its rules to require prosecutors to diligently seek
out evidence favorable to the defense and hand it over.

"What's ironic is that what Nifong allegedly did to those kids at Duke is
exactly what Hoke and Graves did, that being withholding evidence of
possible innocence," said Mark Chilton, the Carrboro mayor and an Orange
County lawyer who has been outspoken on the Gell case.

(source: McClatchy Newspapers)






PENNSYLVANIA:

Killing the executions? Group wants death penalty put on hold, county
officials say system is fine as is


Beaver County's district attorney thinks a recent call to put a 2-year
moratorium on executions in Pennsylvania is simply a way to try to get
around the state Legislature and abolish the death penalty.

Not so, says Marshall L. Dayan, state strategies coordinator of the
national ACLU's Capital Punishment Program. Instead, he questioned,
wouldn't it be much harder to abolish a death penalty system that has all
its flaws corrected?

"This is not abolition in sheep's clothing," Dayan said Thursday.

Last month, a group called the Pennsylvania Moratorium Coalition called
for a moratorium on executions, saying the system is flawed. The
coalition, made up of individuals including state legislators, religious
leaders, former death-row inmates and the American Civil Liberties Union,
wants to introduce a bill in the state Senate that would form a 6-member
panel to see whether the death penalty is being applied appropriately and
fairly.

Dayan said that across the nation, there have been 124 death penalty
convictions overturned, six in Pennsylvania.

"It's not done from ill will or malice, but it happens because we are slow
in changing out techniques that will reduce the chance of error," Dayan
said.

Among the problems that exist, Dayan said, is that while most counties
have professional prosecutorial offices, that's not necessarily the case
with defense attorneys.

"There are some attorneys who handle divorces in the morning, real estate
issues in the afternoon, and the next day, have a murder case," Dayan
said.

Dayan also said there are problems with the way police have victims
identify a defendant, that they should not show a group of photos, but
should show pictures one at a time.

Dayan said that his group doesn't think that death penalties have been
levied unfairly based on the race of the defendants. Instead, he said,
statistics show that a defendant who kills a white person, no matter what
his or her race is, is 3 times more likely to be sentenced to death than
in a case in which a member of a racial minority is killed.

Dayan said there are racial disparities in the Philadelphia area as to
which defendants are being sentenced to death, but his group does not have
an answer as to why, and that's another reason why his group wants another
look at the death penalty system.

Beaver County District Attorney Anthony J. Berosh said that for all
intents and purposes, there is a moratorium right now on executions in
Pennsylvania; the most recent one took place in 1999. Dayan acknowledged
there is a jam-up with cases on appeal at the federal level, but he said
once that jam is broken, it's important to have a system in place that
works.

Berosh said that in his office, a group of assistant district attorneys
discuss each homicide case to decide whether the death penalty should be
sought, with attorneys fighting for and against it.

Even when a case doesn't meet the strict requirements set in place to make
it a death penalty case, including aggravating circumstances, Berosh said,
his office still will review it.

He said that opponents of the death penalty will move from one argument to
the next, hoping, in essence, that one will stick at some point.

He said that many death penalty opponents won't take into account the race
of the victims, that many times, the race of the defendants and the
victims is the same. In all Beaver County death penalty cases in the past
couple of decades, the race of defendants and victims has been the same.

"If they want to start that argument, I'll finish it," Berosh said. "It's
fair to say that in Beaver County, race has been rendered neutral."

This isn't the first time that groups have tried to place moratoriums on
the death penalty. In 1999, the state Senate overwhelmingly rejected a
moratorium, and in 2003, a report by the state Supreme Court recommended a
moratorium, but no action was taken on that recommendation.

Beaver County Assistant District Attorney Ahmed Aziz said that if he
thought there were major problems with the Pennsylvania death penalty
system, he would encourage an extensive review.

"But I don't see (problems)," Aziz said.

ON DEATH ROW

In Pennsylvania, there are 225 inmates on death row. 3 men are on death
row for committing crimes in Beaver County. They are:

Charles Cross, 60, of Center Township

Crime: In 1981, Cross went to the 1530 Duss Ave. home of Denise Lucic, 27,
and her children, John Jeffrey Lucic, 4, and Danielle Lucic, 8, and killed
them.

Sentence: In 1982, Cross was convicted of 3 counts of 1st-degree murder
and sentenced to death.

Status: In 2005, a federal judge overturned Cross' death sentence, saying
he deserved a new sentencing hearing because of ineffective counsel. The
case has been selected for oral argument in the 3rd U.S. Court of Appeals
in Philadelphia, but no date has been scheduled. Cross is in state prison
in Greene County.

Andre Stevens, 63, of Monaca.

Crime: In 1992, Stevens walked into a Rochester bar and shot his estranged
wife, Brenda Jo Stevens, 28, and Michael Love, 28.

Sentence: In 1993, Stevens was convicted of 1st-degree murder for both
killings and sentenced to death.

Status: In 2004, a federal judge ruled that Stevens' constitutional rights
were violated during jury selection for his 1993 trial, because a
potential juror who said she didn't believe in the death penalty was
dismissed.

The Beaver County district attorney's office has appealed that decision to
the U.S. Supreme Court. Stevens is in state prison in Greene County.

Richard Baumhammers, 42, of Mount Lebanon.

Crime: Went on a shooting spree in Allegheny and Beaver counties in April
2000, killing 5 people and wounding 1 other. Among the dead was Garry Lee,
22, of Aliquippa, shot to death in a Center Township karate studio.

Sentence: In 2001, Baumhammers was convicted of 5 counts of 1st-degree
murder and 1 count of attempted murder, and sentenced to death.

Status: Baumhammers' convictions remain on appeal in the Pennsylvania
Supreme Court. He is in state prison in Greene County.

[Sources: Times files; the Pennsylvania state attorney general's office]

(source: Beaver County Times)




MISSISSIPPI:

Parchman's most difficult offenders decry conditions


Parchman's maximum security Unit 32 houses 1,000 of the state's most
troublesome inmates.

But prison activists say the solitary confinement in Unit 32 drives many
insane.

While many will spend the rest of their lives there, nearly half will be
released in the next 7 years.

The maximum security unit at Parchman is designed for the worst of the
worst - murderers, rapists, gang leaders - but it's also home to hundreds
of other inmates with lesser crimes in their pasts.

Of the almost 1,000 inmates at Mississippi State Penitentiary's Unit 32,
1/10 are burglars, one in 20 is in prison for drugs and a handful of
inmates are there for a variety of other assorted crimes, including
illegal discharge of a firearm, shoplifting or fraud, according to
Mississippi Department of Corrections data The Clarion-Ledger obtained
through an open records request.

Another column in that data explains why some nonviolent inmates are in
Unit 32, said Corrections Commissioner Chris Epps, who is entangled in a
lawsuit filed by the American Civil Liberties Union over conditions in
Unit 32, where many inmates spend 23 hours a day in solitary confinement.
That column lists disciplinary infractions, which number more than 100 in
some cases.

Epps said Unit 32 is the most effective way to handle difficult prisoners,
but he said the ACLU would dismantle the operation, endangering the lives
of guards and other inmates and threatening the security of the entire
prison.

"The ACLU hasn't got a clue about running a prison," he said.

Margaret Winter, an attorney with the ACLU National Prison Project, said
Unit 32 is hardly the solution the state claims it to be.

"There is unquestionably a small number of prisoners who are so
exceedingly dangerous they need to be held under the tightest possible
security, but that is a very small number, relatively speaking," she said.
"Even with that small number, there is no justification for holding them
in conditions as harsh as Unit 32."

The unit is loud and dangerous. Last month, inmate Lamarcus Lee Hillard
stabbed to death fellow prisoner Boris Harper using an improvised spear.
And in April, a guard resigned after allegedly beating prisoner Kevin King
with a pair of handcuffs.

According to court testimony from staff, prisoners and visitors, mentally
ill inmates flood their cells, start fires and stay up all night howling.
When staff members stray too close to the cells, they run the risk of
being hit with feces and urine.

Winter said many inmates classified as being discipline problems actually
are mentally ill, while other inmates develop mental illness from the
trauma of living on the unit. The conditions amount to torture, she said.

"We're a nation that is completely wedded to the idea that torture in any
form is unacceptable," she said. "We don't tolerate barbaric treatment of
anyone, including prisoners."

Winter said the conditions inside Unit 32 are not doing anything to reform
prisoners or prepare them to re-enter society.

But Epps said teaching prisoners is a part of his job.

"It is my staff's job in Parchman to try to change behavior," he said.
"That's why it's called correction."

Nearly 1/2 of the prisoners in Unit 32 are scheduled to be released within
the next 7 years.

Epps defended the prison's classification system as objective and fair.
Aside from being on death row, there are several ways prisoners get
assigned to Unit 32, Epps said.

Inmates with life sentences are sent to Unit 32 immediately for
observation. The high-security custody allows prison officials to see how
the inmate will adapt to prison before reassigning him to a general
population unit.

Prisoners who are deemed disorderly or unruly, those who refuse to work on
the prison farm, or those who won't attend school or other programs may be
assigned to Unit 32, Epps said. All but a handful of inmates in Unit 32
have been cited for rules violations. Half of the inmates have had more
than 19 violations in their time in prison, but a few have been written up
100 or more times.

There are 89 charges of escape among the Unit 32 population with some
inmates having multiple escape attempts.

One such unruly inmate is Maywood, Ill., native Michael Rias, who was
sentenced to 20 years on two counts of uttering a forgery. Rias has been
in trouble 3 times since he came to Parchman a year ago.

Epps said he attempted to falsify a urine test, threatened an employee and
attempted to bribe another employee.

(source: Clarion Ledger)