April 12 OHIO----new execution date Supreme Court sets execution date for man who stabbed mother In Columbus, the Ohio Supreme Court on Wednesday set a June 15 execution date for a man convicted of robbing and stabbing his partially paralyzed mother to death while he was high on crack cocaine. Jeffrey Hill, 42, may ask federal courts to delay the execution until a decision in a case in which he and other inmates are challenging Ohio's method of execution by lethal injection as cruel and unusual punishment, said Kim Norris, spokeswoman for Ohio Attorney General Jim Petro. However, the 6th U.S. Circuit Court of Appeals last year refused to grant a stay for a similar argument by John Hicks, who was executed in November. The Ohio Supreme Court also rejected Hill's request for a delay. A message seeking comment was left with Tim Payne at the Ohio Public Defender's office, who has represented Hill. He exhausted his state and federal appeals last year on his conviction and sentence. Hill had argued his trial and appellate attorneys were ineffective because a psychologist who specializes in the influence of addiction on aggression wasn't contacted until the day before he testified Hill's sentencing hearing. Court records show Hill, then 26, borrowed $20 from Emma Hill on March 23, 1991, and bought crack. When he returned to her Cincinnati apartment, the 61-year-old who had suffered a stroke complained he didn't visit enough. He stabbed her 10 times with a kitchen knife, took another $20 and her car, then returned later and took $120 he found in her closet. (source: Associated Press) MARYLAND: Sniper asks to subpoena 178 witnesses----List includes alleged accomplice in Maryland shooting spree A judge will not immediately subpoena witnesses requested by Washington-area sniper John Allen Muhammad in his upcoming murder trial because prosecutors complained many were not relevant. Muhammad, who is defending himself against six Maryland murder charges in the 2002 shootings, asked in a handwritten filing last week for 178 witnesses. He also wanted to subpoena the 354 potential witnesses identified by prosecutors. Muhammad's list includes his accomplice, Lee Boyd Malvo, and some that appear on the prosecution's list. But he is vague on other names; some include no identifying or contact information. Prosecutors said his long list included many people who did not appear to have a strong connection to the case. Prosecutors plan to call only about 100 witnesses. "Many of the defendant's potential witnesses cannot provide competent, material or relevant testimony," prosecutors wrote. Montgomery County Circuit Judge James L. Ryan agreed Friday to wait to issue subpoenas until a hearing on evidence April 24. Muhammad and Malvo are accused of 10 murders in the October 2002 shooting spree in Maryland, Washington and Virginia. Both have already been convicted in Virginia; Malvo faces life in prison, and Muhammad was given a death sentence. (source: Associated Press) CALIFORNIA: Prosecutors To Seek Death Penalty In CHP Murder In Woodland, the 2 main defendants in the November shooting death of a California Highway Patrol officer plead not guilty in court this morning. The prosecution announced they will be seeking the death penalty for both Brendt Volarvich and Gregory Zielesch. The defendants face murder and conspiracy charges in the shooting death of CHP officer Andy Stevens outside of Woodland. A 3rd defendant in the case, Lindsey Montgomery was sentenced to 8 months in a residential drug rehabilitation program and 5 years probation. Volarvich and Zielesch will be back in court June 13th. (source: CBS News) USA: Remembering all death penalty victims On Good Friday, we again remember the most known execution in the history of the world. We remember Jesus being nailed to the cross in accord with the laws of his country. We also remember Mary standing at the foot of the cross --- watching as her son is killed by the state. There are many victims involved in every case that ends with an execution, beginning with the family members of the person who was killed in the crime that led to the conviction. To those who believe in restorative justice, the family of the person who is executed becomes the newest set of victims. Both have lost loved ones at the hands of another --- in the latter case, it is the State who creates this new set of victims. Another set of victims of the death penalty seldom comes to mind: the people the State hires to carry out the execution. This was clearly brought home to me when I was part of a delegation to San Quentin last September. The California Catholic Conference of Bishops arranged the visit to the prison and to death row. Our day ended with a visit to the death chamber. A lieutenant who has participated in all of the more recent California executions took us step by step through the execution process. He recounted the killing process as if he were a robot. There were no feelings attached what he was relating to us. He explained the death of another human being as if neither of them were humans. The death penalty had killed all that was human inside him. He had to deny his own humanity and rid himself of feelings to do the job he was asked to do. As we stepped outside the death chamber, we had our final discussion with the captain who had been our escort for the day. He has worked on death row for quite awhile and on weekends he is pastor of a Christian church in a nearby community. We asked him how he could preach the love of Jesus on weekends and be part of this killing process during the week. He stunned us with his reply: "You have to leave your faith at the gate when you come to work in this place." These two men are both victims of the death penalty. One's humanity has been killed and the other's faith dies every time he comes to do the killing work of our state. As we remember the execution of Jesus, we need to continue to pray for all victims of capital crimes: the murder victims' families, the executed persons' families, and the people that we, the people of California, hire to kill in our name. (source: Father George Horan co-directs the archdiocesan Office of Restorative Justice: Viewpoint, The Tidings) ********************* Testimony from 9/11 victims: How much is fair?----In Moussaoui's trial, it can help jurors grasp the full impact of 9/11, say some. Opponents say it encourages jurors to rely on emotion. This is the week jurors in the sentencing trial of Zacarias Moussaoui saw the face of terrorism up close and personal. There was nothing pretty about the raw and gut-wrenching images of the 9/11 terror attacks placed on public display in a federal courtroom in Alexandria, Va. - A father's final cellphone conversation with his son moments before the son's jetliner was deliberately crashed into the World Trade Center. - Vivid photographs of the charred remains of service men and women at the Pentagon after a fireball of jet fuel engulfed the west side of the building. - Desperate emergency calls from office workers stranded high up in the burning World Trade Center as they realized they had but moments to live. The massive violence of that morning almost five years ago is so far from the routine of American life that it has some analysts questioning whether anyone accused of involvement in the 9/11 attacks could receive a fair hearing in court. Much of the debate revolves around the appropriateness of permitting victims to testify about how the crime has affected their lives. Victim's rights advocates say such testimony helps the jurors gain a broader appreciation of the full impact of an accused criminal's actions. Opponents say graphic testimony from victims can corrupt jury deliberations by encouraging jurors to rely more on emotion than reason. In addition, analysts say that all Americans to some extent are victims of the 9/11 attacks - including members of the jury who soon must decide whether Mr. Moussaoui, an admitted Al Qaeda conspirator, should be sentenced to life in prison or death. Prosecutors had selected more than 40 of 800 identified victims and surviving family members to tell their stories to the jury. This was their opportunity to help the jurors understand not only their personal loss, but the enormity of the crime. "It is really important for the jury to hear that because it is the only way they can get a true sense on a human level of what that person's death means and how much suffering was caused by the perpetrators of this crime," says Mary Lou Leary, executive director of the National Center for Victims of Crime in Washington. Legal analysts say defense lawyers trying to save Moussaoui's life face a difficult task following the victims' emotional testimony. "The jurors are [being] reminded of all the emotions they felt from that day, from watching television or whatever connections they have to 9/11," says Joshua Dressler, a professor at Ohio State's Moritz College of Law in Columbus. "I find it difficult to imagine how they will find mercy for someone who had put them and those victims and families through that." Other analysts say there is nothing wrong with jurors understanding just how terrible a terrible crime is. "The magnitude of the crime is what victim impact is supposed to bring into the case. That is not prejudice, that is probative," says Kent Scheidegger, a capital-punishment expert at the Criminal Justice Legal Foundation in Sacramento, Calif. Mr. Scheidegger says the enormity of 9/11 cannot and should not be sugarcoated. "Most murders are horrendous," he says, "but this one is orders of magnitude more horrendous." Steve Twist, a victim's rights lawyer in Phoenix, takes a similar view. "It is impossible to divorce emotion from a murder case," he says. "I don't care if it is the Twin Towers murders or an individual murder." But legal experts say this doesn't mean prosecutors should be entitled to call all 800 victims to the stand. US District Judge Leonie Brinkema has warned the government about presenting so much graphic and emotion-laden testimony that it might raise questions among appeals court judges about the fairness of the trial. There is no clear standard of how much victim testimony might be too much in a death-penalty sentencing hearing. In 1987, the US Supreme Court ruled that any victim-impact testimony would violate constitutional protections. "The formal presentation of this information by the state can serve no other purpose than to inflame the jury," wrote then-Justice Lewis Powell, for the majority. 4 years later in 1991, a different majority of justices overturned that decision, declaring that victim-impact evidence serves entirely legitimate purposes. Nonetheless, the opinion by then-Chief Justice William Rehnquist also cited the possibility that too much victim-impact evidence might render a trial "fundamentally unfair." Ms. Leary, a former federal prosecutor, says the Moussaoui hearing has been fair. "In this case, I think the judge is wise to be on guard about how far [prosecutors] might go toward the line, and make sure they don't go over it," she says. "But I really don't think they have crossed the line." (source: The Christian Science Monitor) ******************* Joking aside, less severe punishments deter murders I suffer from a self-inflicted curse. Having a J.D. in law and a Ph.D. in economics, I'm a member of two of America's most joked-about professions. Cocktail-party acquaintances use the fact that I'm educated well beyond my abilities to regale me with endless jokes involving scurrilous lawyers becoming roadkill and pointy-headed economists living in ridiculous dream worlds. I usually play along and laugh and pretend that I'd never before heard the one about the engineer, the lawyer and the economist stranded on a desert island. But, in fact, I've heard this joke, and all of the others, too many times to count. Sometimes at cocktail parties, after enduring yet another economist or lawyer joke, I strike back by breaking into my own skit of "Have you heard the one about?" For example ... Have you heard the one about how economists who study law explain why rape isn't punished as severely as murder? Think about it; the answer's not obvious. Everyone this side of sociopathy agrees that rape is a hideous crime. And most people agree that if we punished it even more severely than we do now, its incidence would fall. So why don't we punish rape even more severely -- say, by executing convicted rapists? When I ask my fellow partygoers this question, they typically have no good answers. After watching them struggle to figure out where I'm going with this question, I hit 'em again: "Knowing that we can reduce the number of rapes by making it a capital crime, does the fact that we don't punish rape this severely mean that our society doesn't care as much as it should about women? Does it mean that we secretly think that there's some value to rape?" Except for 1 woman a few years ago who mistook my motives for asking these questions and became giddy with delight that I might share her belief that current laws against rape reflect Western capitalist male hegemonic hatred of women, almost everyone agrees that laws dealing with rapists probably have a more rational explanation. But what is that explanation, exactly? The answer is supplied by none other than the much-joked-about economists and lawyers who study such matters. The short, academic answer is "the need for marginal deterrence." The plain English answer is "if rapists were punished as severely as murderers, the number of murders would rise." Put yourself in the place of a man who is a threat to rape women. If you learn that rapists will no longer merely be locked in prison for years but, instead, executed, you're a bit less likely than before to rape. That's good. But suppose that this higher "marginal" cost of committing a rape isn't sufficient to prevent you from raping a woman. So you rape a woman. Once you commit the rape, you are subject to being executed if you're caught and convicted. What will you now lose by becoming also a murderer? Nothing. In fact, you have everything to gain by killing your rape victim. If you let her live, you run a real risk of being identified, captured and convicted -- and then executed. But if you murder the woman after you rape her, you reduce your chances of being caught and convicted. (The chief eyewitness to your heinous crime, after all, will be in her grave.) So with nothing to lose and much to gain by killing your rape victim, you're more likely to kill her than you would be if the penalty for rape were lower than is the penalty for murder. Punishing rape less severely than murder ensures that rapists still have something more to lose if they kill their victims. Of course, the same logic applies also to other crimes. We don't execute armed robbers not because we don't want to further reduce the incidence of armed robbery; it's because we don't want to strip armed robbers of incentives to let their victims live. And likewise for the entire range of criminal sanctions. For all of its imperfections, our current criminal law generally -- and sensibly -- punishes crimes of lesser significance less severely than it punishes crimes of greater significance. Pickpockets impose real costs on society, but (because pickpockets are both unarmed and don't invade the privacy of people's homes) these costs aren't as high as those costs imposed by robbers and burglars. So the law recognizes that it would be a fool's gambit to attack pickpocketing by increasing the severity of its punishment so much that pickpockets shift into robbery and burglary. It's no joke. Law-and-economics scholars are full of important insights. (source: The Pittsburgh Tribune-Review - Donald J. Boudreaux is chairman of the Department of Economics at George Mason University in Fairfax, Va.) ********************** Working With an Expert Witness: The Seven Deadly Sins "So, I'd really like it if you could say this ..." If you've just said that to your expert witness, you've just made his blood boil. And that's probably not going to be very good for your case. As engineer Steven Murray, Ph.D., of Exponent Failure Analysis Associates in Menlo Park, Calif., says, "Our job is not to support a lawyer's theory, it's to find out the technical truth." Working on a case can be like a juggling act -- you've got your client, the other side, the other side's attorney(s), your witnesses, your expert witnesses, the other side's witnesses and experts. That's a lot of balls in the air. But you should never lose sight of your expert witnesses -- they can make or break your case. Commit too many of the Seven Deadly Sins and you can sabotage your chances of getting the best results. 1. WAIT UNTIL THE LAST MINUTE Less experienced lawyers are often surprised by how early in a case they should hire experts and how much the guidance can help. For example, you may be an expert in the area of product liability theory, but you're not an engineer. If your case involves a car that overturned, you're probably going to need to talk to an engineer at some point. Doesn't it make more sense to do it sooner than later? "This is one of our major pet peeves about working with attorneys," Murray says. "If we're brought in early enough to a case, we can establish the technical facts very well, and lawyers can use that to guide their strategy. The legal strategy that you can start off on, given all the facts, is usually just as beneficial and of course much more tenable than the legal strategies that you would embark on without all the technical facts." Waiting too long to hire an expert, whether it's because you didn't realize the deadline is nearing or because you were hoping the case will settle before you have to pay the expert's retainer fee, is asking for trouble. "Waiting until the discovery deadline may force the attorney into hiring an expert who just gives an opinion that the attorney wants to hear, and not necessarily bound by the constraints of Mother Nature," says engineer Dirk Duffner, of Principia Engineering Services in San Francisco. "At time of deposition or trial, this could undermine the expert's credibility under examination." And an expert with a credibility problem is going to become a problem for your client. 2. HIRE THE FIRST PERSON WHO TELLS YOU WHAT YOU WANT TO HEAR As with everything else, you should comparison shop. Interview several potential experts for their thoughts on your case and be sure they can tell you how their process works. "At the time of the first phone call, an expert should be able to give an attorney a list of specific tasks that need to be accomplished and an approximate cost," Duffner says. Psychiatrist and expert witness Dr. Carole Lieberman of Beverly Hills, Calif., advises attorneys not to pick an expert because he charges less than others. "Too often lawyers collect the CVs and fee schedules of experts, they pick the expert whose fees are the lowest," she says. "They don't stop to think about why the expert is less expensive." Murray warns that it can be a mistake to go with an expert based on impressive credentials. "In the courtroom, convincing evidence and a convincing demonstrative that show your theory fits the evidence will routinely trump great credentialing from the other side," he says. "So you can have someone that's a professor, that has participated in this technical field for years and years, and his opinion will not be valued as strongly as one good videotape that shows a perfect re-creation of the incident." 3. GO BARGAIN BASEMENT Money is always an uncomfortable topic. You're a lawyer, so you may know how it feels to have clients breathing down your neck, watching the clock and demanding explanations for every second billed. Don't do it to your expert. Find someone whose skills you feel comfortable paying for, hire her on retainer and let her do her job. Lieberman says, "You should not expect experts to 'discount' their fees. This is not a flea market. A good expert is not supposed to be a 'bargain.'" You can help prevent billing surprises, according to forensic document examiner James R. Daniels of Houston, by being communicative about your billing processes, what your restrictions are and anything else that will help your expert meet your expectations. Duffner adds, "At the time of your 1st phone call, an expert should be able to give an attorney a list of specific tasks that need to be accomplished and an approximate cost." 4. PROVIDE INADEQUATE INFORMATION Provide your expert with all of the materials and information available, and don't make excuses. Whether it's blueprints, handwriting samples or medical records, your witness probably needs something from you other than your list of questions. It's your job to get it to him. If you don't have access to all the information, let your expert know, but understand that it may affect your results. Daniels says that attorneys sometimes "think having a great excuse for the absence of something is as good as the presence of something. If the car is out of gas, a great excuse for not having gas isn't going to start the car." One of the worst things you can do is hide information from your expert just because it doesn't support your theory. "It is extremely important not to hide any facts from your expert, even if you think they will damage your case," according to Lieberman. "It is far worse for your expert to be confronted with these facts on the witness stand." 5. ASK THEM TO BACK UP CRAZY THEORIES Expert witnesses are called that because they're experts. They have some sort of education, training or experience that makes them more knowledgeable in their field than you are. Respect that. You may not like what she's saying, but if your expert witness tells you that your theory is rendered impossible by the immutable laws of physics, you should listen. She's trying to help you. Let her look at the information and do her job and tell you what happened. Then you can work out your legal approach. "Anytime that you introduce a technical theory into court, as an attorney or as an expert, you've got to assume there will be some smartass from MIT that will pick you apart with a fine-toothed comb," Murray says. "The good news is that if your theory is right and it's the technical truth, there's no way it can be picked apart. But if it's not right, it should be relatively straightforward to crush your theory in a way that will be easily demonstrated to the jury." 6. IGNORE DIFFERENCE BETWEEN LEGAL STIPULATION AND SCIENTIFIC TRUTH The practice of law is loaded with theory. Lawyers argue, expound and pontificate. Expert witnesses generally work with hard facts. So even though you think a photocopy of a signature is good enough, your forensic document examiner may not. Did opposing counsel's expert say a copy was good enough? That's great, but your expert wants an original document. Try harder to find one. "Lawyers can mentally get into this world of what is legally true or false, as by stipulation, or everyone agrees that such and such, but that doesn't make it factually true," says Daniels. 7. ACT UNETHICALLY AND ASK THEM TO DO SO, AS WELL Your expert is as concerned about his or her reputation as you are about yours. And just like lawyers, expert witnesses can get reputations for ethical or unethical behavior. Lawyer jokes often focus on how unethical lawyers will do anything for a buck. Don't be that lawyer. Don't go for the "hired gun" expert who will skirt the edges of junk science to match your theory. And don't ask a legitimate expert witness to compromise on integrity. For example, if you've hired a psychiatrist to be an expert witness but you want her to review medical records instead of examining the patient, and she says no, she's not being difficult -- she's being ethical. Taking the high road can be more expensive up-front. Your expert witnesses may run up higher expenses or take longer to perform necessary research. But in the long run, when you win cases because your expert witness' statements are unassailable, it will be worth it. Pet peeves, deadly sins and communication errors aside, many people who frequently serve as expert witnesses really do like lawyers. And they want to help you find the answers. All they ask is that you follow the Golden Rule. "The bottom line," says Lieberman, "is for a lawyer to treat an expert with the respect and professionalism that the lawyer would expect for himself." (source: Law.com)
[Deathpenalty] death penalty news----OHIO, MD., CALIF., USA
Rick Halperin Wed, 12 Apr 2006 17:26:31 -0500 (Central Daylight Time)
