April 28 SOUTH CAROLINA: Pro bono 'duties' debated----Proposal would let lawyers buy an exemption from court-appointed cases Should a lawyer be able to buy his way out of representing the poor? He could under a proposal that has passed the S.C. House and is being considered by the Senate. Lawyers could become exempt from court-appointed cases for 1 year in exchange for a payment of at least $1,000 under a bill introduced by House Speaker Pro Tempore Doug Smith, R-Spartanburg. He also has tacked the proposal onto the states $7.3 billion budget bill as a temporary law known as a proviso. The S.C. Supreme Court would set the annual exemption rate and determine what to do with the collected money. The bill is 1 of 2 competing visions for reform of the state's court-appointment system, which provides lawyers to the needy, including civil cases, like the determination of parental rights in child-abuse cases. Many lawyers complain that the state unconstitutionally requires lawyers to represent the poor, usually paying them about $40 an hour well below normal billing rates. That money comes from court fees and fines. "This is a public duty borne on the back of 1 profession," said Brad Waring, a Charleston lawyer with Nexsen Pruet and president of the nearly 12,000-member S.C. Bar. Smith and Waring agree that small firms in rural counties often are burdened by an unmanageable number of civil court appointments. Lawyers who specialize in areas like real estate and corporate law might be appointed to child-custody cases, Waring said, where they are unfit to serve and doing a disservice to their clients. "It's just a horribly inefficient system," he said. Smith and Waring support setting money aside for lawyers willing to specialize in court-appointed work. They disagree, though, on how to pay for it. "Lawyers do have a duty," said Smith, a Spartanburg lawyer. "Lawyers are supposed to do pro bono work." But if they feel that court appointments are not cost-effective or not their specialty, they should pay a fee and opt out, Smith said. They can still take other pro bono cases. But that doesn't fly with Waring, who wants money from the state budget to pay higher rates to lawyers trying court-appointed cases. Such funding could help create a "cottage industry" of lawyers willing to specialize in court-appointed cases and relieve other lawyers of their appointments. In large legal firms, it is common practice for senior lawyers to pass their court-appointed cases to a junior lawyer in the firm so they can work on more lucrative cases. "We just felt (Smith's bill) was a substitution of one tax for another," said Waring, who said the fee may create a system of "haves and have-nots" those who can afford an exemption and those who can't. The S.C. Bar also dislikes giving the Supreme Court the authority to impose a fee. "We think that's a slippery slope," Waring said. Smith responded that since the exemption fee is optional, he doesn't understand how the S.C. Bar considers it a tax. "That's baloney," he said. Greenwood lawyer Rauch Wise said he doesn't usually apply for reimbursement of $40 an hour in civil cases. "It's not worth your time unless you've got a lot of hours in it," he said. Smiths idea might be a good solution, Wise said, though it struck him as similar to another practice. "That's what was done in the Civil War, wasn't it?" he said, referencing conscripted soldiers who were allowed to pay to send another man to war in their place. Paul Fata, a lawyer and assistant solicitor in Lee County, said some lawyers consider the work a community contribution. "I guess that's how you can justify such low compensation." He sympathizes with a lawyer in a large firm "that's got a million-dollar deal cooking and has to come over here and work for $40 an hour." And they might not be competent to try a civil case. "Just because you have a law degree doesn't mean you can do everything," Fata said. Rauch said pending court rulings could result in even more people soon becoming eligible to get court-appointed attorneys including people who are unable to make child-support payments. It's important that everyone gets a fair shake in court, he said, especially when determining the custody of a child. "We, as a society, expect lawyers to be there to defend the poor," Wise said. "The problem is, really, how are you going to pay for it?" WHAT THEY ARE PAID Rates for court-appointed lawyers in South Carolina CIVIL CASES $40 per hour $1,750 cap $1.2 million paid in fees in 2005 CRIMINAL CASES Hourly rates vary $3,500 cap $2.2 million paid in fees in 2005, not including death-penalty cases [Source: S.C. Commission on Indigent Defense] (source: The State) TENNESSEE----new death sentence Jury sentences man to death in fatal shooting of Bristol officer A Bristol, Virginia, man has been sentenced to death in the fatal shooting of a Bristol, Tennessee, police officer. Nikolaus Johnson was convicted on Tuesday of killing Officer Mark Vance in November 2004. Vance was shot in the head while responding to a domestic violence call at the home of Johnson's girlfriend, who was then 17 and pregnant. Witnesses testified Johnson had just found out his girlfriend had lied about having an abortion and threatened to kill the first person to enter the home that night, saying he would rather go to prison for murder than statutory rape. While the jury took little more than 90 minutes to find Johnson guilty of 1st-degree murder, deliberations during the sentencing phase of the trial took longer. The jury heard closing arguments in the sentencing phase yesterday morning, received the judge's instruction and then deliberated about four hours before returning to the courtroom with a verdict. The jury's options were to sentence Johnson to life in prison, life in prison without parole or death. (source: Associated Press) ALABAMA: Innocence, guilt in the real world The way I read an appellate brief filed by Alabama Attorney General Troy King, he thinks we Alabamians ought to be throwing a party every time another Death Row inmate breathes his last breath. "Perhaps, in a perfect world, every inmate would have a lawyer at the ready at all times," King argued in Barbour v. Haley. "But we live in the real world." And in this real world, the evidence mounts that Death Row sentences are not punishing only the guilty, which is what King wants the higher courts and us to believe. Instead, in far too many instances, death row inmates have been discovered to be innocent - or at least not guilty of capital crimes. Thanks to DNA testing, we also know this is true of a growing number of those convicted of non-capital offenses as well. The most recent is Jerry Miller, who became the 200th person exonerated by DNA evidence on Monday. The crime he didn't commit? The 1981 rape of a woman in a Chicago parking garage: Miller spent 25 years in prison because he was misidentified by 2 parking garage attendants. But Miller was lucky. The real rapist left DNA evidence on the woman's clothes, which led the Innocence Project to push for a test. "Only 10 % of serious felony cases, it is estimated, have any biological evidence which you can do DNA testing on and determine who's guilty or innocent," said Barry Scheck, co-founder of the Innocence Project, on Wednesday. "You have to wonder, how many mistaken identifications, false confessions, bad lab work, there are in those cases." Aside from now no longer having to register as a sex offender, the DNA test only confirmed what Miller already knew: He was innocent, falsely convicted of a horrible crime. The real rapist may still be out there. So for the rape victim, Miller and their families, there still is no justice. Of course if he had been charged with a capital crime, Miller might be dead by now. Illinois was a death penalty state until 2000, when then Gov. George Ryan, a Republican, instituted a moratorium. In a 21-year period, Illinois had seen more Death Row inmates exonerated than executed. The governor, who still believed that the death penalty was appropriate in some cases, rightly concluded that the system was flawed and that it was more important not to kill the innocent than to execute the guilty. "There have been tens of thousands of people who have been arrested in this country since 1989 when forensic DNA testing began to occur," Scheck said. "And then before the trial, they did a DNA test and found they weren't the person (who committed the crime). "Nobody really knows for sure how many innocent people are in prison in America." We also don't know how many innocent people have been executed in Alabama. But because seven death row inmates have had their capital convictions overturned or have been completely exonerated since 1975, it's natural to wonder if at least one of the 35 who have been executed may have been innocent. The real world about which King speaks is one where witnesses, police officers, prosecutors, juries and judges are human. Sometimes, mistakes will be made. Facts will get confused. Agendas will be twisted. No matter how hard he tries, King can't guarantee that every conviction will be the right one. He can't say for sure that no other Alabama death row inmates will ever be exonerated, or at least have a capital conviction overturned. Without that guarantee, the death penalty in Alabama is fatally flawed. And in the world in which I live, I don't know how King can live with that. (source: Opinion, David Person, Huntsville Times) ********************* Kids need qualified voice in court, too THE ISSUE: State ranks poorly in a survey on how well foster children's legal rights are being looked after. Nobody should be surprised Alabama ranks poorly in a survey of how well states protect the legal rights of children in foster care. Alabama regularly ranks near the bottom in national surveys of child well-being. But it looks like a trend. Alabama is 1 of only 2 states that doesn't provide legal counsel for death row inmates in the latter stages of appealing their convictions. Our state is a poor state, and defending the indigent, whether on death row or in foster care, is expensive and isn't high on many state leaders' priority lists. Except Mississippi and Louisiana are poor states, too, and they get the highest marks for protecting the legal rights of foster children. Georgia and Tennessee made good grades, too. What's wrong with us? According to First Star, a nonprofit organization that works to improve the lives of abused and neglected children, there's plenty wrong - enough to give Alabama a grade of D overall. (For the record, Alabama tied with 5 states while 15 others, including Florida, scored F's.) The survey gives the state good marks in several areas: Unlike death row inmates, every child in the child welfare system has legal counsel. But the skill level and consistency of representation are spotty at best. For example, children have no right to have the same attorney through the review and appellate process. Alabama also doesn't mandate that attorneys express the child's wishes. Some children, of course, are not capable of providing what is called "client-directed legal representation," but many children are able to make their wishes known. When that happens, their lawyers should be compelled to represent those wishes if they're not detrimental to the child's mental or physical well-being. And just as lawyers in death penalty cases aren't required to have special training in death penalty law (they only need 5 years of criminal law experience), lawyers who represent children aren't required to have professional training in child welfare cases, either. Fortunately, nearly 900 lawyers statewide have completed a six-hour training course to be certified to work on child cases. Unfortunately, that training is not mandatory. It is reasonable to expect that lawyers who represent death row inmates will be trained in capital punishment law, as it is reasonable to expect lawyers who represent foster children will be trained in child welfare law. Reasonable in most places, but not in Alabama. (source: Opinion,The Birmingham News) *********************** Appeals panel denies Jones' stay of execution A 3-judge federal panel Friday denied a stay of execution for Alabama death row inmate Aaron Jones, who is scheduled to die May 3 by lethal injection for 2 killings more than 28 years ago. His attorneys had asked the U.S. 11th Circuit Court of Appeals in Atlanta to block the execution until a lower court hears another prisoner's challenge to lethal injection. But the 11th Circuit panel refused: "The state and the surviving victims have waited long enough for some closure to these heinous crimes. We will not interfere with the state's strong interest in enforcing its judgment in this case." An attorney for Jones said an appeal would be filed with the U.S. Supreme Court. Jones, 54, one of the longest-serving death row inmates in Alabama, is scheduled to die by lethal injection at 6 p.m. (CDT) Thursday at Holman Prison for the gruesome slayings of a Blount County couple and attacks on other family members during a home robbery in 1978. The 11th Circuit panel agreed with the state's attorneys' argument that Jones had waited too long to challenge the constitutionality of lethal injection, saying Jones could have done that years ago when the state adopted that type of execution. By waiting until November 2006 to challenge the state's lethal injection procedure, Jones' purpose was to delay the execution, not fight the method, the court concluded. Opposing any execution delay, state prosecutors said that while Jones and another death row inmate have separate appeals with identical lethal injection claims, each case must be settled on its own merits and Jones should be executed. The appeals panel agreed, saying the "mere possibility of a trial date in another case does not affect the balancing of the equities in this case." Jones, who lived in Birmingham, has filed many appeals over the last 27 years, the latest challenging lethal injection as a method of execution. He was convicted of capital murder and sentenced to death -- first in 1979 and then in a retrial in 1982. Jones' pro-bono attorney, Heather K. McDevitt of the New York, had argued in a brief before the 11th Circuit that Jones should be granted a stay of execution until a Montgomery federal judge hears a challenge to lethal injection from another death row inmate, Darrell Grayson, who has a July 26 execution date. Attorneys from the Atlanta-based Southern Center for Human Rights, representing Grayson, are expected to request a stay of execution on Monday. Alabama Attorney General Troy King, in a brief filed Friday in the 11th Circuit, said there's no guarantee Grayson will be given a trial on the constitutionality of lethal injection. U.S. District Judge Keith Watkins has indicated a June 26 trial is a possibility and gave attorneys a timetable to submit briefs. The constitutionality of Alabama's method of execution by lethal injection has never been decided by the courts. A half-dozen inmates have filed lethal injection challenges in the Montgomery federal court. State's attorneys say each claim is "virtually identical," and they expect more will be filed as the clock ticks down toward an execution date. Jones' attorney told the 11th Circuit that a stay of execution in his case should be granted until there's a ruling on Grayson's challenge to Alabama's execution procedures. McDevitt said the state "can point to no legitimate interest in rushing" to execute Jones next week as opposed to 2 months from now when the matter is decided in the same court in which Jones' challenge was pending. "To proceed otherwise is unjust and tends to create an appearance that the system is arbitrary and capricious in matters of such grave importance," McDevitt argues. She said at least eight states have recently suspended execution by lethal injection over concerns about the execution process, saying it has come "under heavy scrutiny in the past year and is a matter of serious, national concern." In a response, the attorney general's brief says death row inmates "will certainly argue any doctrine available to prevent re-litigation of the same issues, but every death row inmate will inevitably claim that his case is somehow 'different' and that he is entitled to a trial." However, the state argues, the 11th Circuit has denied stays of execution when inmates could have brought claims in time to permit full consideration without any need to stay their executions. In Jones' case, U.S. District Judge Myron Thompson in Montgomery earlier denied a bid to block the execution. Thompson said Jones' challenge "is dilatory." Jones and cohort Arthur Lee Giles, also on death row, shot and stabbed 3 children, their parents and their grandmother in rural Blount County, a farming area northeast of Birmingham. The parents, Willene and Carl Nelson, died as a result of injuries in the Nov. 10, 1978 attack. Jones, and Giles, 47, are among the longest-serving inmates on Alabama's death row. Only 2 out of the 199 inmates on death row have been there longer, according to Department of Corrections records. (source: Associated Press) NEW HAMPSHIRE: N.H. attorney general to seek death penalty in '05 slaying Lured to a backyard barn in New Hampshire with a ruse concocted by a business owner he had done odd jobs for, Jack Reid Sr . was bludgeoned to death with a hammer, wrapped in plastic, and dumped in a Saugus parking lot in the summer of 2005, according to a police affidavit. Yesterday, New Hampshire's attorney general, Kelly Ayotte, announced she will seek the death penalty for John A. Brooks, 54, formerly of Londonderry and New Castle, N.H., who is accused of masterminding the plot. It is the second time in six months that Ayotte has sought the death penalty. According to the police affidavit provided by Ayotte yesterday, Brooks, former owner of a medical supply company in Manchester, N.H., was angry at Reid, 57, because he believed Reid had shot at his son and stolen some of Brooks's property. Brooks said that he had hired Reid to move items from his house and that he had taken two Harley-Davidson motorcycles and an urn containing his father's ashes. "The most serious decision I have to make as attorney general is whether or not to pursue the death penalty," Ayotte said in a telephone interview. The decision was based on evidence that the homicide was premeditated and carried out in a heinous, cruel, and depraved manner for monetary gain, she said. Last fall, Ayotte announced she would seek the death penalty for Michael "Stix" Addison , who is accused of killing 35-year-old Manchester Police Officer Michael Briggs in October. The last death penalty case in New Hampshire prior to that was 10 years ago, and the last death sentence to be carried out was in 1939 , Ayotte said. A group opposed to the death penalty expressed outrage over the decision. Arnie Alpert , chairman of the New Hampshire Coalition against the Death Penalty , said: "We find it deeply disturbing that this is the second time in less than a year that she's pursuing the death penalty. For the state to seek to execute people shows a disrespect for life and reinforces the disrespect shown by the people who commit murder. And, it's a phenomenal waste of resources in terms of the time and money that prosecutors put into these cases that can drag on for years." Alpert said no protests had been planned as of yesterday, but added that the coalition would probably meet in the coming days to discuss the matter. According to the affidavit, compiled by New Hampshire Trooper John Encarnacao , a daughter of Reid's, Megan , contacted police on June 29, 2005, expressing concern that she and other family members had not seen or heard from her father for 2 days . On July 5, Megan Reid called police again, saying that a woman noticed her father's red-and-black pickup in the parking lot of a Target store in Saugus. Police discovered Reid's body in the bed of the pickup, covered by a tarp and wrapped in plastic. Megan Reid could not be reached for comment yesterday. Through cellphone records, authorities tracked down Brooks and 3 other men they believe were connected to Reid's death. The other men were identified as Joseph Vrooman of Las Vegas, Robin Knight of North Hampton, N.H., and Michael Benton of Manchester. The four were arrested in November and charged with conspiracy to commit murder. The charge against Brooks was upgraded to murder, and he is being held without bail in New Hampshire. In a barn in Deerfield, Benton struck Reid first, pounding a hammer into the side of his head and forehead, according to the affidavit. Reid collapsed and started bleeding profusely. Brooks allegedly grabbed the hammer from Benton, said "stop the heart, stop the bleeding," and hit Reid's chest. Brooks had told Vrooman he would pay him $10,000 if he helped Brooks keep Reid away from Brooks's family , according to the police affidavit. (source: Boston Globe)
[Deathpenalty] death penalty news----S.C., TENN., ALA., N.H.
Rick Halperin Sat, 28 Apr 2007 12:41:29 -0500 (Central Daylight Time)
