[Deathpenalty] death penalty news-----GA., FLA., PENN.

[Rick Halperin]

Aug. 8



GEORGIA:

Troy Davis' 'day in court' brought travesty of justice


I've been called a lot of things, but a "bleeding heart liberal" is not
one of them. I am a firm believer in the propriety and historic soundness
of the death penalty. But, as a proponent of our Constitution and its
attendant Bill of Rights, I believe just as strongly in the fundamental
fairness that lies at the heart  or should lie at the heart  of our
criminal justice system. Because of its obvious finality, the death
penalty must be employed with as close to absolute fairness and certainty
as humanly possible. Several recent cases, including that of Troy Davis
here in Georgia, have raised legitimate questions about just that
proposition. True conservatives, as much as the most bleeding heart
liberals, should be unafraid to look carefully at such cases.

A new study of wrongful convictions  "Judging Innocence" by University of
Virginia law Professor Brandon Garrett  provides cause for concern.
Professor Garrett studied 200 cases of wrongful convictions and found that
in each case, DNA evidence conclusively proved the individual's innocence
and resulted in exoneration. According to Garrett, the leading cause of
these wrongful convictions was erroneous identification by eyewitnesses,
which occurred in an overwhelming 79 percent of the cases. Even more
disturbing, in 25 % of the cases, this faulty eyewitness testimony was the
only evidence against the defendant.

In 31 of these 200 cases, the prisoners appealed to the U.S. Supreme
Court, but the court refused to hear the appeal or ruled against them. In
other cases, higher courts decided that trial errors were "harmless" and
therefore did not constitute grounds to reverse. Even with DNA evidence
conclusively clearing them, many of these defendants faced enormous
obstacles in convincing courts to overturn their convictions.

These individuals had their proverbial "day in court," but the wrong
person was convicted and sent to prison or death row. Perhaps equally
troubling, the real perpetrators remained free and in at least some cases
committed more crimes.

Garrett concluded that the resistance of courts was not the only reason
why these innocent people were unable to prove they were innocent. Another
reason is that procedural obstacles often prevent courts from hearing
evidence, even evidence of innocence. Also, good lawyers are essential to
enable a defendant to mount a defense and raise all relevant issues.
Several years ago, a commission of distinguished Georgians concluded that
our state failed to provide a "constitutionally sufficient, fair criminal
justice system." The commission said the state must provide
"[s]ignificantly more money ... for those without adequate resources to
provide [a defense] for themselves." It found that while more money was
essential, it was equally important for the state to create a public
defense system that "insures quality, uniformity and accountability."
Georgia responded by creating a much-improved defense system.
Unfortunately, because the Legislature failed to provide a practical
mechanism to implement and fund the new system, it is itself now
threatened by a funding crisis.

Troy Davis, recently granted a 90-day stay of execution by the Georgia
Board of Pardons and Paroles and a promised hearing before the state
Supreme Court, had his "day in court." Yet nearly every reason Garrett
cites for wrongful convictions applies in the Davis case. The murder
weapon was never found, and there was no other physical evidence tying
Davis to the crime. While it was representing him, the Georgia Resource
Center's budget was slashed; his lawyer admitted the best he could do was
to try "to avert total disaster." 7 of the 9 eyewitnesses have since
recanted or changed their testimony, some even saying they implicated
Davis only because of extreme pressure from the police. And new witnesses
have now implicated one of the remaining witnesses as the real killer.

Troy Davis' life is at stake; but so is the credibility of our criminal
justice system. If a "day in court" means anything, it is that this man is
entitled to a thorough and fair review of evidence that he is innocent.
Georgia's highest court has determined that a "day in court"  crucial for
those accused of capital offenses  must be measured not only temporally
but qualitatively as well. In this, we should all applaud them.

(source: Op-Ed; Former congressman and U.S. Attorney Bob Barr practices
law in Atlanta; Atlanta Journal-Constitution)






FLORIDA:

Judge: Jessica Lunsford's killer fit to die


A convicted sex offender found guilty of kidnapping, raping and burying
alive a 9-year-old neighbor is not mentally retarded and is eligible for
the death penalty, a judge ruled Tuesday.

Defense attorneys for John Evander Couey, 48, argued that he suffered
lifelong mental abuse and possessed a below-normal IQ.

A 2002 U.S. Supreme Court ruling prohibits the execution of mentally
retarded people.

A jury had voted 10-2 to recommend that Couey be executed. Florida law
puts the final sentencing decision in the hands of a judge, who must give
great weight to a jury recommendation.

Circuit Judge Ric Howard in Citrus County ruled that the most credible
intelligence exam rated Couey's IQ at 78, slightly above the 70 level
generally considered retarded, the St. Petersburg Times reported.

Couey was convicted of entering the home of Jessica Lunsford in February
2005, taking the girl and killing her. Her body was later found in a grave
in Couey's yard, about 150 yards from her own home. He was arrested in
Georgia.

"A person who is mentally retarded simply could not have planned such a
sophisticated crime, and escape," Howard wrote.

A telephone message could not be left for Couey's public defender, Daniel
Lewan, by The Associated Press after hours Tuesday.

Sentencing has been scheduled for Friday.

(source: Associated Press)






PENNSYLVANIA:

Life row: Does Pa. really have a death penalty?----226 inmates sit, wait
and keep appealing


Landon May brutally murdered Terry and Lucy Smith in their Ephrata home
nearly 6 years ago. He was sentenced to die and has been awaiting
execution for nearly 4 years  years filled with multiple appeals to
multiple courts.

May actually was scheduled to die by lethal injection March 1, but his
defense attorneys obtained a stay of execution so they could file
additional appeals.

That was fine by Terry Smith's two daughters, who early in the case told
prosecutors they strongly oppose the death penalty and would settle for
life imprisonment.

But it didn't sit well with Smith's two sisters, who believe May's appeals
should be cut off and he should be put to death.

"Why does this person who killed 2 people have the right to years of
appeals?" asks one of those sisters, Nancy Bergerstock, of Milton.

The Smith family obviously is of 2 minds about the death penalty.

So, apparently, is Pennsylvania. The state Legislature reinstated capital
punishment in 1978, but an elaborate appeals process and numerous
death-sentence reversals ensure that the ultimate penalty is rarely
carried out.

In the past three decades, Pennsylvania has executed three men. Each
abandoned appeals and essentially asked to die. The most recent execution
occurred in 1999.

The most recent execution of a Lancaster County criminal  Franklin &
Marshall College student Edward Gibbs  took place in 1951.

Of the 226 Pennsylvanians currently on death row, 6  Landon May and his
father, Freeman May; Orlando Baez; Francis Harris; Kevin Dowling; and
Tedor Davido  are from Lancaster County.

Three others from this county  Roderick Frey, Robert Zook and Leroy
Stallworth  successfully appealed their capital convictions and are
serving life sentences. They are among some 50 Pennsylvanians who have had
death sentences revoked since 2000.

Thanks to appeals and execution stays, more than two-thirds of the 226
Pennsylvanians sentenced to die, including 3 of the 6 Lancaster County
men, have been on death row for 10 or more years.

Pennsylvania's death-row population, fourth largest in the country, also
is the oldest. Some inmates have been on the row for more than a quarter
of a century as appeals work their way through state and federal courts.

Given all that, some observers wonder whether the state actually has a
death penalty.

"Essentially, we don't execute people in Pennsylvania," says Craig
Stedman, who prosecuted the Landon May case for the Lancaster County
District Attorney's Office. "Appeals delay executions indefinitely."

Gov. Ed Rendell signed May's death warrant after the U.S. Supreme Court
rejected his appeal. But May's attorneys persuaded a federal district
court to stay the execution so they can appeal again.

After those appeals are filed in county and federal courts later this
month, prosecutors will reply. Then appellate judges will consider the
case once more.

It is very likely that Landon May, who was 19 when he killed the Smiths
and is 25 now, could turn 30 before the appeals process plays out.

Bergerstock believes that is wrong.

"There are cases when the death penalty isn't warranted, and some on death
row don't deserve to be there," she concedes. "But they have Landon May's
DNA. This case was so brutal and so premeditated, and there is not a shred
of doubt."

But Stedman explains that the relative strength of the case has no bearing
on the appeals process.

"Every case where we obtain the death penalty, regardless of how strong
the evidence is, (the appeals process) is all by the same rules," he says.
"Landon May's case could continue for many, many years."

***

An increasing number of people, but still a relatively small minority,
seems to be satisfied that the system grinds slowly.

A Pew Research Center poll, released early this summer, shows that most
Americans support the death penalty; but the majority has shrunk from 78 %
in 1996 to 64 % now.

A Gallup Poll taken last year showed respondents almost equally divided
when asked to choose between a death sentence or life without possibility
of parole.

Meanwhile, the number of death sentences actually handed down nationwide
is plummeting  from 277 in 1999 to 128 in 2005.

And the number of executions nationwide also has dropped  from 98 in 1999
to 53 in 2006.

One of the reasons for these shrinking numbers is that 123 people have
been released from death row since 1973, including at least 6 in
Pennsylvania.

Not only their death sentences, but even their convictions were overturned
by appeals courts that found the defendants actually innocent of capital
crimes.

The Death Penalty Information Center, which opposes capital punishment,
issued a report in June that emphasized "an erosion of confidence" in the
ultimate penalty, in large part because of the number of conviction
reversals.

Pennsylvania's reversals in death penalty cases have come from state
(about 70 percent) and federal (30 percent) appellate courts.

Many of those reversals occurred because of what appellate judges
perceived as legal errors in the original trials.

For example, after spending 20 years on death row for killing a typewriter
repairman and his girlfriend in Lancaster, Zook left death row last year.
The Pennsylvania Supreme Court ruled that juries that sentenced him to
death had not been told about a brain injury his attorneys claimed he
suffered as a child.

Stallworth, who was sentenced to death for killing his estranged wife in
Lancaster, also left death row last year, after the state's highest court
ruled that prosecutors had misstated an aggravating circumstance in his
case.

Murder convictions for both men remain in place, and they will remain in
prison for the rest of their lives.

But James Karl, the county's chief public defender and past president of
the Public Defender Association of Pennsylvania, says most cases aren't
overturned simply because of a flawed defense in the original trial.

He says expert defense attorneys pursue a number of avenues in defeating
the prosecution on appeal.

The county's Public Defender's Office carries cases through the original
verdict. Then the Capital Habeas Corpus Unit of the Defender Association
of Philadelphia, a federally funded stable of lawyers dedicated to
overturning death penalty convictions, represents cases through the
appeals process.

"They're very good attorneys and they have very good resources at their
disposal," Karl explains. "They're going to go over these cases with a
fine-tooth comb."

***

The Defender Association long ago took over appeals for Baez, who was
sentenced to die in 1993.

Baez was convicted of murdering 22-year-old Janice "Sissy" Williams in her
West King Street apartment in 1987. Prosecutors said Baez raped and beat
the woman and stabbed her more than 100 times.

After the local trial, the Defender Association took the case through
state appeals. In 1999, Gov. Tom Ridge signed Baez's death warrant. But
execution was delayed to permit further appeals.

2 years ago, the state Supreme Court kicked the case back to Lancaster
County, where it is pending.

The state Attorney General's Office has taken over the prosecution, while
the Defender Association continues the defense.

The victim's mother, Janice Lee Williams, of Lancaster, supports continued
prosecution. But she says Baez should have been executed years ago.

"I thought once he was found guilty and the decision was for the death
sentence that it would be over," says Williams. "It's been so long. I just
hope I live to see it."

Williams says she would not support life in prison without parole  an
alternative backed early this summer by prosecutors and the remaining
family of Jesse Dee Wise Jr., who killed six of his relatives in Leola
last year.

"No, that wouldn't be right," Williams says. "(Baez) tortured my daughter.
He raped her. He should have the death penalty. It's not fair for her.
It's not fair for the victim or the family. We can't forget about it."

Baez has always maintained his innocence, so 14 years of appeals could
extend for many more years.

Taxpayers are footing the bill for both sides of this case and almost all
other capital cases  few defendants can afford to pay for their own
attorneys during years of appeals  and that mounting cost disturbs both
prosecution and defense.

Arguing an original capital case doesn't take much more preparation than
other cases, notes Lancaster County's District Attorney Donald Totaro. But
defending against death penalty appeals is considerably more costly than
defending against other appeals, he says.

The Defender Association has "seemingly unlimited resources," Totaro says.
That creates "a significant burden for county prosecutors, and
consequently many appeals are referred to the Pennsylvania Attorney
General due to lack of resources."

But Karl says Totaro has created his own problem by seeking the death
penalty in a relatively high number of cases.

2 decades ago, Karl says, the county's district attorney sometimes would
go more than a year without identifying a death penalty case. That trend
has changed in the last decade.

5 of the county's 10 pending homicide cases are death penalty cases, Karl
notes. That capital-case ratio is far greater than in the past.

"That means the death penalty is still in effect, yes," Karl says. "We
have to budget for it. We have to spend our resources on it. It's an
extreme drain that is controlled exclusively by the DA."

The state Legislature is also responsible, Karl explains. When the
Legislature reinstated the death penalty in 1978, it listed just 6
aggravating circumstances that could trigger a death sentence.

Legislators have expanded that list to 18.

The district attorney would not have been able to tag several of the
current homicides as death penalty cases under the old rules, Karl notes.

As one example, he cites Meghan Lippiatt, a Mount Joy woman accused of
killing her 2 children in 2004. The aggravating circumstance  multiple
murders  is one of the more recent additions.

For his part, Totaro says he simply follows the law, reviewing all
homicide cases for aggravating circumstances. If such circumstances exist,
his office recommends the death penalty.

"All defendants are treated equally," he says, "and there can be no
suggestion that the death penalty in this county is applied in an
arbitrary or discriminatory manner."

***

In recent years, a dozen states  mostly in New England and the Midwest
have found significant problems with the death penalty and have enacted
bans or halted executions.

Pennsylvania has maintained the status quo, except for increasing the
number of aggravating circumstances that can trigger the penalty.

Gibson Armstrong, a Republican who represents Lancaster City and western
Lancaster County in the state Senate, says he's not happy with the way the
death penalty is being handled in Pennsylvania, but he's not proposing
changes.

"I don't think the death penalty is much of a deterrent," he notes, "but
if we changed the law and made it even stiffer, that wouldn't help."

He shifts all blame back to criminals.

"We can pass all the laws we want and we can execute them twice," he says.
"That's just not going to solve the problem. Unfortunately, you can't make
a law to change people's values."

Michael Sturla, a Democrat who represents the city in the state House,
says he is not unhappy with the present system that encourages years of
appeals for death row inmates.

"There are a lot of people sitting on death row because of circumstantial
evidence," he says. "I'm not a big fan of circumstantial evidence. I think
we should err on the side of caution instead of just killing people so
someone gets vengeance."

Sturla says he believes life without parole is as useful as a deterrent as
the death penalty and, considering the pricetag of the appeals process,
probably costs no more.

"All the statistics show that the death penalty doesn't serve as a
deterrent," he says. "It's a fairly barbaric form of punishment."

Legislative and judicial efforts to suspend the death penalty in
Pennsylvania failed several years ago. There is no pending legislation.

(source: Lancaster New Era)