APril 7 USA: Law professors say foreign laws influence constitutional issues The United States must to begin adopt the international consensus against the death penalty and torture in order to recognize universal human values and rights, said Michael Tigar, a research professor of law at American University in a lecture Thursday at UT's School of Law. Tigar, a former UT law professor, was in town to commemorate the opening of the law school's Capital Punishment Clinic, which gives students an academic as well as hands-on clinical understanding of issues related to the death penalty. At least 60 people attended the talk. Tigar discussed Roper v. Simmons, the 2005 case in which the Supreme Court rule against administering the death penalty on crimes committed by anyone under the age of 18, and how the role of foreign laws and norms played out in the decision. Robert Owen, a UT adjunct law professor who assigned his students to the lecture, said that in light of the Roper decision, the adoption of foreign constitutional opinions is an inevitable trend of the U.S. Supreme Court that will influence future cases on capital punishment and torture. At several points, Tigar was critical of the war in Iraq and said that the Bush administration displays "an alarming moral ambiguity on torture." In the current debate, in which some scholars and those within the administration have OK'd torture under certain circumstances, Tigar said lawyers must "distinguish universal rights and wrongs." While notions of democracy and human rights in the Constitution have been heavily borrowed from foreign documents, the American Constitution is also a great source of inspiration for other democracies, Tigar said. Referring to the war on terrorism, he said it is not justifiable to impose those ideals on the rest of the world through military force. Individual liberties, he said "are valid and important no matter where in the world we live." Daniel Klein, a 3rd-year law student and part of the school's Criminal Defense Clinic, which represents indigent misdemeanor defendants in Travis County, said that while he disagreed with the content of much of Tigar's talk, he found the issues he raised relevant. "He was a brilliant speaker - funny and engaging," Klein said. Tigar has argued 7 cases in front of the U.S. Supreme Court and more than 100 appellate cases. (source: The Daily Texan) ***************** Justice Alito Joins Cert Pool Party Supreme Court Justice Samuel Alito Jr., like his predecessor Sandra Day O'Connor, has joined the justices' so-called "cert pool" -- leaving John Paul Stevens once again as the only justice not participating in the controversial case-pooling arrangement. Alito confirmed his action in response to a query from Legal Times. Justices in the pool divide up incoming certiorari petitions among their law clerks, so that one clerk produces a memorandum on each case that is then shared with all the justices in the pool. The pool, created in 1972 to cut down on duplication and cope with increased caseload, was not controversial until gradually, more and more justices joined it. With 8 of 9 justices participating, critics have said the arrangement gives too much power to individual clerks to determine the fate of incoming cases. "I am concerned about the fact that only Justice Stevens has opted out at the present time," says Florida International University law professor Thomas Baker, co-author of a text on appellate courts. "Right now, an individual law clerk has the most influence over the cert decision to grant or deny review. That clerk is often one year out of law school." Alito was noncommittal when he was asked about the cert pool at his confirmation hearing in January, though he said he was "aware of the issue" and would talk to other justices about it once confirmed. "I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases," Alito said at the Jan. 10 hearing. "We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have." Fellow newcomer and chief justice John Roberts Jr. in a speech in 1997 said he found the practice "disquieting" -- a common view among fellow Court practitioners who must explain to high-paying clients why it is likely that their petition was turned down with only one justice, or even no justices, actually reading it. But Roberts joined the pool anyway, as has Alito -- at least for now. "It's interesting to me that whatever qualms the justices have about reliance on a single clerk's memo, those qualms aren't sufficient to keep justices from joining and remaining in the pool," said Ohio State University political scientist and Court scholar Lawrence Baum. "I think the justices -- especially the more liberal justices -- will have to face their qualms more directly when Justice Stevens leaves the Court." Stevens himself does not read all the petitions, since he divides them up with his own clerks. But he has felt some duty to remain outside the pool to serve as a check or backstop to avoid mistakes. Informed that Alito has joined the pool, Roanoke College professor Todd Peppers, author of a forthcoming book on law clerks, says the news probably foreshadows other opinion-writing practices Alito will adopt. "I predict that he will call upon his clerks to prepare the first drafts of majority, concurring and dissenting opinions," Peppers said, "a practice followed by all Rehnquist Court justices except for Justice Stevens, whose clerkship employment practices were undoubtedly influenced by his own clerkship with former Supreme Court Justice Wiley Rutledge." (source: Legal Times) ***************** Justice delayed "I'm one of the strongest human beings ever created," Nick Yarris says without a hint of ego. He's entitled to the claim. After spending 23 years on Death Row in solitary confinement for a crime he didn't commit, to be functional and sane at all is a Herculean accomplishment. Yarris is one of seven men profiled in "After Innocence," a documentary by Jessica Sanders that powerfully explores the struggles faced by those whom DNA testing has exonerated after years behind bars. With no more than an apology, if that, these victims of an imperfect justice system are thrust back into the world to try to reconnect with lives and families rudely interrupted by fate and incompetence. The film shows how the organization the Innocence Project (www.innocenceproject.org), started by attorneys Barry Scheck and Peter Neufeld, has helped wrongfully convicted inmates (175 to date) obtain their freedom. But it also focuses on the challenges faced by those exonerated once they're plunked back in the real world. Shockingly, being freed from prison doesn't automatically mean their criminal records are expunged. This means that a guy like Vincent Moto, who served more than 10 years for a rape and robbery he didn't commit, still can't find steady work because officially he's a convicted felon. There's also the issue of compensation; it's disturbing to learn that very few states have laws requiring financial payment to those who've been victimized this way. The time lost, the earning power forever diminished, the social stigma of being a convicted rapist -- frequently, none of it is worth a dime. There seems to be a general reluctance on the part of prosecutors and governments to even acknowledge their errors, much less try to make up for them. This is demonstrated most forcefully in the story of Wilton Dedge, sentenced in 1982 to life in prison for sexual battery, whom "After Innocence" follows on his Kafkaesque quest for justice. Dedge requested DNA testing in 1996, which proved in 2001 that the pubic hair found at the crime scene was not his. Still, the state of Florida refused to acknowledge his innocence, arguing on procedural grounds and at one point insisting he should not be released even if they knew he was absolutely innocent. Seeing Dedge, and especially his stoic parents, deal with this nightmarish scenario is both appalling and inspiring. Realizing that the stories told in this film are the ones with relatively happy endings is horrifying. After all, only crimes with biological evidence, generally sexual assaults, are eligible for post-conviction DNA testing. Even most of those freed through testing surely don't adjust as well as these 7. And how many who could have been exonerated were executed? We may never know. That the criminal justice system is flawed should surprise no one. But the scope of the problem, with likely thousands of innocent people incarcerated thanks mostly to errant eyewitness testimony, should give pause to anyone who thinks that life is as simple as black and white, innocent and guilty. (source: The Oregonian) ALABAMA----female faces death penalty Suspect refuses to deal----Prosecutors to pursue death penalty against Orange Beach woman after she refuses to accept manslaughter plea An Orange Beach woman charged with capital murder for allegedly drowning her newborn son rejected a plea agreement offer from prosecutors Thursday. Marsha Gossett Colby was offered a 20-year prison sentence if she agreed to plead guilty to manslaughter, instead of facing the death penalty, according to testimony at a hearing Thursday. When Colby turned that down through her attorney, Wilson Myers, prosecutors said they would continue to pursue the death penalty against her. Attorneys on both sides had discussed a possible plea deal for months, but never reached an agreement, Myers said. "I'm certainly not shutting the door on a plea offer in the case," he said after the hearing. "I'm just hoping the process will continue. We're just not there right now." He continued, "Marsha maintains her innocence in this case, as that she did not intentionally kill the child." Baldwin County Circuit Court Judge James H. Reid set an Aug. 21 trial date, but said he would hear a defense motion to set a bond for Colby in the next few weeks. Colby, 41, is being held without bond in the Baldwin County Corrections Center in Bay Minette. Myers said he wanted Colby to deny the prosecution's offer "because she's not guilty." Hired by Colby's family, Myers also asked the judge to appoint an additional lawyer to the case because of the extra legal work he expected. The trial could take up to 2 weeks, Myers said. The alleged drowning occurred in February 2005. Prosecutors contend that Colby buried the child's body in a shallow, muddy grave behind her Orange Beach trailer home. A two-count indictment against Colby states that she caused Timothy Colby's death "by drowning or other means" and that she failed "in her parental duty to provide necessary medical services." Colby was arrested about a week after the alleged drowning, when authorities dug up the body. Investigators had found Timothy's body wrapped in a blanket and stuffed into a trash bag, buried in a grave marked by an upright 4-by-4 post. Colby's previous defense attorney, Wayne Doerr, had claimed that the infant was born dead, according to reports. Results of an autopsy have not been made available. Prosecutors have said Colby killed the baby at least partly because she could not afford to raise him. Family members have said that up until the final days of her pregnancy, Colby worked as a roofer in the company she owned with her common-law husband, Glenn Brewer. (source: Mobile Register) SOUTH CAROLINA: Judge to decide if Rita Bixby can face the death penalty In Abbeville, a judge will decide next month if a 73-year-old woman is eligible to face the death penalty even though she wasn't at the Abbeville County house where 2 law enforcement officers were killed more than 2 years ago. Rita Bixby is charged with accessory before the fact of murder, conspiracy to commit murder and lying to police in the deaths of the 2 officers which started a 14-hour standoff in December 2003. Authorities say the family was angry over plans to widen state Highway 72 in front of their Abbeville home. Rita Bixby's son and husband are charged with murder. Prosecutors said they were in the home when the officers were killed and plan to seek the death penalty in those cases too. Rita Bixby left the house before the shooting. But "the only reason she left the home was because she wanted to protect her handicapped son" who lived in an apartment across town, prosecutor Jerry Peace said. She knew her husband and son planned violence against any law enforcement officer who threatened to take any of their land for the highway project, Peace said. During a hearing Thursday, Bixby's lawyer said there isn't a single case where someone with the same charges as Bixby has faced the death penalty and the prosecution's efforts violate state law and her constitutional rights. But Peace said lawmakers could have exempted from the death penalty statute crimes such as accessory before the fact of murder but did not do so. Both sides were asked to submit their arguments by April 21 and Circuit Judge Alexander Macaulay said he would decide if Bixby can face the death penalty by May 8. Several other issues were discussed during Thursday's daylong hearing in Abbeville. Attorneys for Rita Bixby's son, 38-year-old Steven Bixby, asked the judge to keep prosecutors from seeking the death penalty against him because Abbeville County Sheriff Charles Goodwin knew when their client was meeting with expert witnesses - information he was not supposed to have. Macaulay ordered Steven Bixby to the Lexington County jail and told officials they have the responsibility of keeping his appointments private. Steven Bixby is scheduled to stand trial starting Oct. 2 for the deaths of Abbeville County sheriff's Sgt. Danny Wilson, and state constable Donnie Ouzts on Dec. 8, 2003. The judge has delayed deciding whether the trial will be held and where to pick the jury from. He has already ruled Bixby can't get a fair trial from a jury of people from Abbeville County. Also during the hearing, portions of the State Law Enforcement Division's reports on the incident were read in court. Steven Bixby told SLED agents Wilson unclicked the holster to his sidearm when he visited the house and told him state highway officials were going to take their land whether the Bixbys wanted them to or not. SLED agents wrote that Rita Bixby said she was "proud" of her son not for shooting a deputy but for defending his property. Also, Abbeville County deputy Barry New said Wilson was told the Bixbys might become violent about threats to their land. "He agreed to go there and talk to the Bixbys," New said. "Nobody (with the sheriff's office) directed him. One other deputy knew he was going there, or possibly would go there, but he did not know to go as backup." At one point during Rita Bixby's hearing, a man not affiliated with the case asked the judge to hear his motion to have Bixby released from jail. After hearing about the case on asked to America's Most Wanted" in 2003, Donald Sullivan said he felt compelled to defend her from what he called an unlawful prosecution. Sullivan said he was ready to go to jail for trying to act as Rita Bixby's lawyer and wanted "to protect Mrs. Bixby's rights." "I assure you the whole court system of the United States will do that," Macaulay said "And some of us are better qualified than others." (source: Associated Press) UTAH: Appeal hearing postponed for death-row inmate----Lovell told to confer with his attorneys before court date Douglas A. Lovell got a lesson in proper court procedure from a district court judge Wednesday. Lovell, 48, is on death row for killing Joyce Yost in 1985, after she testified that he raped her. He had previously threatened to kill her if she testified. He is now appealing his death sentence. In a hearing Wednesday, Lovell, dressed in an orange jumpsuit and guarded by 3 men, tried to persuade 2nd District Judge Michael Lyon to rehear testimony that Lyon had already ruled irrelevant in November. Lovell said testimony from Rhonda Buttars, if it had been heard during the penalty phase of his capital murder trial, would likely have changed his plea from guilty to not guilty. A previous judge in the case, Stanton Taylor, had also ruled her testimony irrelevant. Lovell argued that he had ineffective representation by his attorney at the time, John Caine. Lyon told the inmate that he should have consulted with his attorneys and should have notified the attorneys representing the state of Utah before he filed a motion regarding the matter. "This is not a free-for-all," Lyon said. "We don't come into court and ambush people." Lovell said he didn't know he needed to provide a copy of recent filings to the prosecutors. Lovell added that he didn't bring briefs and transcripts from earlier hearings with him to court Wednesday because he didn't know he was to be in court. He said he had been unable to have regular contact with his attorneys, James Retallick and Ryan Bushell, because of a phone system at the Utah State Prison that allows inmates to place collect calls but only to Qwest subscribers. "I haven't seen either one since November," Lovell said. So he's communicated by mail with Retallick. Because the attorneys haven't met with Lovell at the prison recently, Lyon asked Retallick and Bushell to meet with Lovell Friday, and Lyon continued Wednesday's hearing until Monday morning. This is the 2nd time the Utah Supreme Court has sent Lovell's appeal to the district court level, Lyon said during the hearing. Lyon said he wants to make sure this is the last time Lovell's case comes back to his court because it's too time-consuming. "It's too expensive," Lyon said. "There needs to be closure by the victims in this case." Assistant Utah Attorney General Thomas Brunker agreed. "All he's doing is causing more and more delay," Brunker said. "This case is 20 years old. . . . We wouldn't have this problem if he had spoken with his attorneys." (source: Deseret Morning News) PENNSYLVANIA: Fannick co-counsel may defend Hugo----Conflict attorneys John Pike, Steve Menn are candidates to defend Hugo Selenski. It seems logical, and probable, for attorneys John Pike and Steve Menn to be appointed to defend Hugo Selenski on his latest homicide charges. The 2 already know Selenski from their work in his 1st trial, and they've already done some research in the case. But, in all likelihood, the familiarity of the intricacies in the case and the rapport between the attorneys and Selenski wont be as strong without the same lead defense attorney, another area lawyer said. Without attorney Demetrius Fannick at the helm of Selenski's defense team in his second case, the attorneys will have to establish their own relationship with Selenski and review loads of documents that Fannick already has memorized, attorney Ferris Webby said. "All this stuff that Fannick has right now, that he wouldn't have to go over, the new attorneys have to go over," said Webby, a defense attorney. "Theyll get through, but it will be time-consuming. They have to start from square one." Fannick on Wednesday said it appeared he would not be retained to defend the 32-year-old Selenski on homicide charges in the deaths of pharmacist Michael Kerkowski and his girlfriend, Tammy Fassett. The news came less than a month after Fannick helped Selenski in March beat 2 homicide charges in the deaths of suspected drug dealers Frank James and Adeiye Keiler. The charges in the first and 2nd cases stem from separate incidents, but they all stem from the same investigation when police converged on Selenski's Kingston Township home in June 2003 and found the remains of at least 5 people or as many as 12 people. Fannick defended Selenski for free in the first case. He said taking on another complex case for free would cut too far into his private practice. He has been unable to come to terms with Selenskis family on payments for defending Selenski in the 2nd case. Fannick has not said how much he asked to be paid, other than dispelling rumors of him asking for $250,000. But another defense lawyer, Nanda Palissery, said it "wouldn't be out of the question" for an attorney to request a $100,000 retainer fee for such a case. The cost could also rise as the case progresses, he said. Now, it's likely Selenski will be appointed attorneys from a group of public attorneys known as conflict counsel. They are attorneys on the Luzerne County payroll and not associated with the public defenders office. They are provided to indigent defendants who have a conflict of interest with the public defenders. Attorneys Pike and Menn, who aided Fannick in defending Selenski in the first case, are in that group of attorneys. And it is likely those two will be appointed to lead Selenski's defense in the 2nd case. A decision could come by today. But even though they were involved in Selenski's 1st case, they still didn't have as much contact with Selenski or review as many documents as Fannick, Webby said. Pike and Menn worked more on the death-penalty aspect of the case, Webby said. So if they are appointed, they will have to spend a lot of time reviewing all the investigative reports and background of the case to prepare for the guilt phase of the trial, he said. There could also be altered levels of comfort and trust, Webby said. Selenski, Webby said, is already comfortable with Fannick. Normally, when a defendant has an attorney in a case that goes well, as Selenski's 1st case did, a defendant has faith in that attorney, Webby said. And there's also going to be some scrutiny from Selenski to his new attorney, Webby said. "The attorney is gonna hear, 'Well, Fannick wouldn't have done it this way,'" he said. "That's only human nature." Fannick, in the last trial, was not easily swayed by Selenskis orders, Palissery said. "I watched the interaction," he said. "Demetrius never did anything - just because Mr. Selenski wanted him to." Having Fannick on the sidelines in the second trial should not have any impact on the prosecution strategy, Webby and Palissery said. District Attorney David Lupas did not offer any comments on Selenskis attorney issue. Pike realizes he and Menn are an appropriate fit to defend Selenski in the second case. "It's just logical that one or both of us would be appointed," said Pike, a 10-year member of the conflict attorney group. Selenski's preliminary hearing is scheduled for April 13. Prosecutors have not revealed whether they will seek the death penalty, but they sought that punishment in Selenski's 1st case. How the system works Conflict attorneys are not automatically appointed to cases, Pike said. If a defendant is indigent and needs to be represented by a public defender, the defendant first has to apply for representation through that office, Pike said. The public defender will determine if any conflict of interest exists in representing the defendant. A conflict, Pike said, could arise when 2 or more people are arrested in the same case. If one of those defendants is represented by a public defender, the others cannot be. Or, he said, if witnesses in the case are represented by public defenders, the defendant also cannot be represented by public defenders. If the public defenders determine a conflict exists, they petition a judge to have a conflict attorney appointed. Each conflict attorney is paid around $25,000 per year. Pike said the conflict attorneys are appointed on a rotating list. But not any attorney can be appointed to a death-penalty case, Pike said. The attorney must have 18 credits from legal classes and seminars and have completed at least 8 significant felony trials. "Then you could be lead counsel," Pike said. Without those qualifications, an attorney could assist on the defense team, Pike said. Currently, Pike and Menn meet those standards. Other conflict attorneys are in the process of being qualified, he said. Palissery said there are several solid attorneys in the county that could handle a complex case such as Selenskis case, but Fannick was masterful in the 1st trial. "Whoever his new counsel is going to be, it's gonna be difficult to be as devoted and committed to this case as Demetrius was," said Palissery, who has done work with Fannick in the past and believes Fannick is an "excellent lawyer" deserving of all the recognition he is now receiving. "He was phenomenal. It's too bad that Mr. Selenski and attorney Fannick could not come to terms because Hugo would be well-represented." Here is a list of the attorneys who make up Luzerne Countys conflict counsel group: - John Pike - Steve Menn - Paul Galante - Sam Falcone - Joe Cosgrove - Mike Senape - Bob Davison - Joe Nocito - Gerald Wassil - Mark Bufalino - Matt Kelly - Brian Corcoran (source: Times Leader)
[Deathpenalty] death penalty news----USA, ALA., S.C., UTAH, PENN.
Rick Halperin Fri, 7 Apr 2006 10:02:59 -0500 (Central Daylight Time)
