July 2 TEXAS: 10th Court chief justice must control anger Lady Justice is usually portrayed as blindfolded, a sword in one hand and a perfectly balanced scale in the other. The idea is that justice is meted out swiftly, fairly and without favor or prejudice. For our system of laws and justice to succeed, we have to believe in this concept, that each of us is equal in the eyes of the law. It doesn't always work that way, but for the most part it does. We have to believe that, should we have cause to go to court, that our case - civil or criminal - will be considered honestly and fairly at each step of the process. If we lose that belief, for whatever reason, then justice in America ceases to be just. The situation that has been brewing on the 10th Court of Appeals in Waco, in which one judge routinely takes increasingly personal and vitriolic potshots at the other 2 justices on the court, is calling into question the impartiality of justice. This affects us in Brazos County because all appeals from our 3 district courts and 2 courts-at-law - except for death penalty cases - go to the 10th Court. In Texas, any civil or criminal verdict rendered in a district court or court-at-law may be appealed. Cases in which the death penalty is assessed are automatically appealed to the Texas Court of Criminal Appeals, 1 of the 2 highest courts in Texas. All other cases are appealed to one of 14 courts of appeal located throughout the state. Until 2 years ago, Brazos County cases went to either of two Houston courts of appeal - the 1st or 14th - or the 10th in Waco. Because of consistent overcrowding in the 2 Houston courts, it was decided to put Brazos County entirely within the 10th District's jurisdiction. Appellate courts must take every case appealed to them. Most of the cases appealed to them go no further. Some, though, are appealed to either the Court of Criminal Appeals for criminal matters or the Supreme Court of Texas for civil matters, including all cases in which defendants are tried as juveniles. Both high courts accept only cases they choose, which may include cases in which the law is unclear or 2 or more of the 14 intermediate courts have decided similar issues differently. Because most cases go no further than the intermediate courts, it is imperative that decisions issued by those courts be clear, fair and impartially rendered. That isn't always the case with the 10th Court of Appeals. Chief Justice Tom Gray is often at odds with other two justices - a fancy name for judges - who sit on the court: Bill Vance, a former Brazos County judge, and Felipe Reyna. All three are elected by the voters and, with the exception of some clerical duties assigned to the chief justice, all have equal power and authority. Cases coming into the 10th Court from any of the 18 counties it serves are assigned on a rotating basis to one of the three justices. With the help of staff attorneys, the justice writes an opinion on the case and circulates it to the other two justices for review and comment. Issues raised by either of the other judges often are incorporated into the final opinion, which then has to be approved by at least two of the three justices on the court. Occasionally, a justice will write a concurring opinion, bringing up issues not included in the opinion itself. Sometimes, when a justice disagrees strongly, he will write a dissenting opinion, pointing out why he thinks the majority opinion is incorrect. Such dissenting opinions are not rare, but they aren't that common either - except in the 10th Court, where Chief Justice Gray writes dozens of dissenting opinions each year, far more than any other justice on any of the 14 courts of appeal. In 2004, for instance, Gray wrote 78 dissents, Vance wrote 10 and Reyna, in his first year on the court, wrote none. Not only is Justice Gray writing many dissents, he is using them more and more to criticize personally the other 2 justices on his court. A story by a Waco reporter said Gray uses terms such as "schizophrenic," "irrational" and "unlawful" in his dissents. He has called opinions by Vance and Reyna similar to a "mediocre law-review article" and compared their work to that of a "first-year law student." So much for collegiality. In a recent case from the 272nd District Court in Brazos County, Vance and Reyna originally joined with Gray in upholding the original verdict, but, as was his right, the defendant asked the court to take a second look at the issues raised in his appeal. At that point, after researching previous cases, Vance and Reyna agreed that one of the issues had merit and issued a final opinion overturning the verdict and sending it back to Brazos County for retrial. In his dissent, Gray criticized Vance and Reyna for frequently taking 2nd looks at cases before them when asked. Gray, in his dissent, noted the number of cases awaiting opinions from both Reyna and Vance but conveniently left out any mention of those awaiting his opinion. In doing so, he implied that Reyna and Vance are not keeping up with their work load, which isn't the case at all. Both justices routinely issue the vast majority of their opinions in timely fashion. While most cases probably don't need a 2nd review, it is appropriate and within the law for justices to do so. And if they decide they need to change their mind, they should not hesitate to do so. Fairness demands it and Justice Gray is wrong to suggest otherwise. Gray says the 10th Court is the most reversed in the state, although he can provide no statistics that verify that. Of course, justices are obligated to dissent when they truly believe the majority opinion is wrong. Much as the public would like to think the law is clearly black and white, such often isn't the case and good justices and judges can honestly disagree on what the law says and intends. That's why we have appellate courts. Since Justice Gray issues so many dissents and they have become so vitriolic, the public has to wonder what his purpose is. Is he dissenting because he truly believes he is right or is doing so as a way to spew his dislike of his colleagues on the court? That such a question has to be asked - and it must - causes concern about the decisions rendered by the court. On most of the 14 Texas courts of appeal, disagreements over opinions would be discussed and worked out by the justices before the majority opinion is issued. That doesn't happen on the 10th Court because Gray apparently won't speak to Vance or Reyna unless absolutely necessary. No longer do the 3 justices get together to consider the cases before them. Making the problem worse is that the 10th Court is one of only four courts of appeal in Texas with only three justices (the others are in Texarkana, El Paso and Tyler). It is easier to deal with such personal disagreements on larger courts. The appellate courts in Beaumont and Amarillo each have four justices, while all others are at least 5. The 2 Houston appeals courts have 9 justices each and the court in Dallas has 13 justices. Justice Vance says he will retire when his term is up at the end of next year. Justice Reyna, whose term expires in 2010, has said he will run again. Justice Gray was just re-elected last year, so he has 5 1/2 more years left on his 6-year term. That's too long if he continues to behave as he has. Justice Gray certainly doesn't have to like Justice Vance or Justice Reyna. And if he honestly disagrees with their opinions, he should write a dissent. But that dissent should be based on the law, not on the personalities of the 3 justices. The dissents should be restrained and should avoid personal attacks. If he cannot do so, then perhaps it is time he leave the court, either voluntarily or by the actions of the State Commission on Judicial Conduct. Absent that, we are likely to lose faith in our 10th Court of Appeals, and, by extension, the other courts we rely on to mete justice fairly and equitably. (source: Editorial, The Bryan College Station Eagle) FLORIDA: Lethal questions ---- State's death-penalty rules still flawed Gov. Charlie Crist says he's ready to crank up executions again in Florida after the state adopted 37 recommended changes in procedure that supposedly make lethal injection less brutal and less prone to gruesome accidents. We'd urge Crist to reconsider. Much as the governor backed away from his old persona as "Chain Gang Charlie," the state should back away from its bloodthirsty reputation and move toward a system that emphasizes justice over vengeance. The problems with the death penalty aren't going away. Even if Florida found a painless and foolproof execution method (the current system is likely to be neither, even after the changes) fundamental injustices remain. The death penalty is still applied so randomly that it's comparable to lightning striking. Racial and socioeconomic inequities still riddle the system. And the question of innocence still throbs as the sorest point of all. The man whose execution prompted a review of lethal-injection procedures went to his death proclaiming his innocence. There were no eyewitnesses to the killing of a Miami strip-club manager for which Angel Nieves Diaz was convicted, and a jailhouse "snitch" later testified that he lied when he said Diaz confessed to the crime. But it was the manner in which Diaz died that raised so many questions. Florida's lethal-injection procedure was adopted because it was advertised as being sterile and quick, with no unsightly twitching or flames. But Diaz's execution took more than 30 minutes. Needles meant to inject a triple cocktail of lethal chemicals into his bloodstream were inserted through, not into, his veins, leaving the caustic fluid to pool in the muscles of each arm. Witnesses said they saw Diaz moving his head, grimacing and mouthing words as the execution dragged on. But state officials say Diaz felt no pain. That claim is barely credible. The changes in execution procedure since adopted by the state don't offer much comfort. Among other things, prison officials will take care not to move the gurney onto which a prisoner is strapped during an execution, and watch the inmate's arms for signs that a needle has been misinserted. But the state won't change the chemicals used in exections, despite medical testimony that the 3-drug combination -- an anesthetic, a paralytic, and a drug that stops the heart -- could be excruciatingly painful. Florida leaders shouldn't focus on making executions less dramatic. They should be asking whether all the controversy and debate is worth it, whether the effort is justified to preserve a system that any rational evaluation shows to be unjust. The answer, clearly, is no. (source: Editorial, News-Journal) USA: Insane men, optional justice A death sentence overturned Thursday by the U.S. Supreme Court proves how arbitrary the American capital-punishment machine can be. Scott Louis Panetti, convicted in Texas of killing his wife's parents, claimed to be inhabited by an alter ego named Sarge Ironhorse and said he was being persecuted for his religious beliefs. In other words, he's crazy as a bedbug -- and the Supreme Court held that it's illegal to execute the insane. That makes perfect sense. Panetti's delusions made him incapable of assisting in his own defense (raising serious questions about the trial court judge's decision to allow Panetti to represent himself.) But if it's illegal to execute the insane now, why was it legal in 2000 to kill Thomas Provenzano, the man who walked into an Orlando courthouse in 1984 and opened fire? Provenzano had a lengthy history of mental illness and went to his death believing himself to be Jesus Christ. 2 heinous and inexplicable crimes. 2 perpetrators, both obviously insane. One lives, the other dies. And once again, Americans see proof of just how arbitrarily and unfairly the death penalty is administered in this country. (source: Editorial, News-Journal) *************************************************** Our View: Cloudy issue Our Position: SCOTUS justified in death penalty intervention. The issue of death penalty is a clouded one. On one side, there is the argument that it brings justice to victims of violent crime and their families; that it is an effective message which says acts of violent crime and murder will not be tolerated and will be met with the harshest punishment possible; that it goes by the Biblical tenet of an "eye for an eye." On the other side, it could be said that it is costly to our prison system, and therefore costly to taxpayers; that it has never solved society's crime problems and acts of violence still and will continue to occur regardless; that it betrays the Biblical tenet of "judge not, lest ye be judged." It's a weighty topic, and if ever there was a subject that could test the purpose of debate, the death penalty is it. Statistics for either side of the argument are always open to interpretation. It will never be an issue of simple right and wrong. It's not often the nation's highest court, the Supreme Court, becomes involved in a death penalty case. Oftentimes, it is relegated to the state and the Court of Appeals. Recently, the high court ruled on a death penalty case from Texas in which a mentally ill man was convicted in 1992 for killing his in-laws in front of his wife and child. Lawyers for the convicted murderer, Scott Panetti, say he suffers from a severe documented illness that is the source of gross delusions. A former ranch hand and native of Hayward, Wis., Panetti had a history of mental problems, including schizophrenia, recording 14 hospital stays over 11 years before his conviction. Four courts said he was competent when he fired his trial lawyers. A jury and two courts rejected his defense of not guilty by reason of insanity. He personally argued that only an insane person could prove the insanity defense, dressing in cowboy clothing and submitting an initial witness list that included Jesus Christ and John F. Kennedy. Whatever the cause, the act of murder - whether it is thought out or an act of passion - is evil and sick by today's standards, both religious and not. When someone is murdered, their life is taken against their will. There is often no time for them to understand why they are about to die and what purpose their death will serve. The Eighth Amendment of the Constitution bars "the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing." One of the Panetti's lawyers, Scott Hampton of Austin, said "executing Scott Panetti would have been a mindless, meaningless, miserable spectacle. What this decision means is that you can bring in experts to try to determine a person's rationality." Hampton added that the number of people on death row with the kind of mental illness that Panetti suffers from is relatively small. The high court ruled 5-4 to block Panetti's execution. It doesn't resolve the argument of whether or not the death penalty is right, but at least it offers some clarity to a very clouded issue. (source: The Daily Nonpareil (Iowa) ) ****************** Death is barbaric penalty It's been 35 years since the Supreme Court's watershed death penalty decision, yet little has changed with the disturbing use of capital punishment in America. In the 1972 Furman v. Georgia case, the high court found in a 5-4 decision that the death penalty was arbitrarily imposed and racially biased. It also found that it was cruel and unusual punishment in violation of the U.S. Constitution. The majority cited factors such as the poor quality of court-appointed lawyers for the accused and the risk of executing the innocent. In the 4 years after Furman, 37 states enacted new death penalty laws to address the court's concerns about arbitrariness and discrimination. By 1976, the Supreme Court upheld the new statutes passed by Georgia, Florida and Texas. And by 1977, America's death machine resumed operation. Today, more than 1,000 executions later, the death penalty still is arbitrary and unfair. In its 1997 report calling for a moratorium on the death penalty, the American Bar Association declared that "administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency." In other words, it is a game of pure chance. Each locality has its own standards, and each prosecutor decides whether to seek death. Only 2 percent of those eligible for a death sentence actually receive death. Co-defendants might receive different sentences for the same crime, with one receiving death and the other receiving jail time. 95 % of death row prisoners can't afford an attorney and must take a court-appointed attorney, who often is overworked, underpaid or lacks experience in capital cases. The most important factor that determines whether someone will get the death penalty is the race of the victim. Over the past 30 years, an overwhelming majority of people executed in the United States - more than 80 % - were convicted of killing a white victim, according to Amnesty International. Blacks, however, are about half of all murder victims. And 1/3 of America's death row inmates is black. Since 1973, 124 people have been released from death row because they were wrongfully convicted, according to Amnesty International and the Death Penalty Information Center. In January 2000, then-Illinois Gov. George Ryan declared a moratorium on executions after 13 death row prisoners were found to have been wrongfully convicted in the state since 1977, while 12 others were executed. The death penalty offends international sensibilities and violates human rights law. Since the United States resumed executions, 70 countries have abolished the death penalty, for a total of 128 nations that have repudiated killing by the state. Most of all, the death penalty isn't the deterrent its supporters claim. The murder rate for states with the death penalty was 46 % higher than those without in 2005, according to the Death Penalty Information Center. The United States virtually stands alone in the developed world in the use of judicial executions, and it is not a brave or principled stance. As the only industrialized nation with such a hunger for death in its justice system, the nation cannot justify the barbaric practice. One cannot fix a system that is inherently flawed. Now is the time to put the death penalty to sleep, for good. (source: David A. Love is a lawyer in Philadelphia. He wrote this for Progressive Media Project; appeared in Athens (Ga.) Banner-Herald) ******************** Fired Prosecutor Says Gonzales Pushed Death Penalty----Figures Show Attorney General Often Overrules U.S. Attorneys' Arguments Against Capital Charges Paul K. Charlton, one of nine U.S. attorneys fired last year, told members of Congress yesterday that Attorney General Alberto R. Gonzales has been overzealous in ordering federal prosecutors to seek the death penalty, including in an Arizona murder case in which no body had been recovered. Justice Department officials had branded Charlton, the former U.S. attorney in Phoenix, disloyal because he opposed the death penalty in that case. But Charlton testified yesterday that Gonzales has been so eager to expand the use of capital punishment that the attorney general has been inattentive to the quality of evidence in some cases -- or the views of the prosecutors most familiar with them. "No decision is more important for a prosecutor than whether or not to . . . deliberately and methodically take a life," Charlton said. "And that holds true for the attorney general." His testimony before a Senate Judiciary subcommittee reviewing the use of the federal death penalty provided the most detailed account to date of Charlton's interactions with Gonzales's aides about the murder case that contributed to his dismissal. It also was one of the most pointed critiques of Gonzales by any of the fired federal prosecutors, whose removal touched off a furor on Capitol Hill. Justice Department data presented at the hearing demonstrated that the administration's death penalty dispute with Charlton was not unique. The Bush administration has so far overruled prosecutors' recommendations against its use more frequently than the Clinton administration did. The pace of overrulings picked up under Gonzales's predecessor, Attorney General John D. Ashcroft, and spiked in 2006, when the number of times Gonzales ordered prosecutors to seek the death penalty against their advice jumped to 21, from three in 2005. Barry M. Sabin, deputy assistant attorney general for the department's criminal division, testified, "I don't know and haven't evaluated the circumstances of the numbers." He added: "There should be great respect for those who are most familiar with the facts of the case, the co-defendants and the local community." But by law, the attorney general has final say over whether capital charges are filed. According to Charlton, the case on which he clashed with Gonzales involved a methamphetamine dealer named Jose Rios Rico, who was charged with slaying his drug supplier. Charlton said he believed the case, which has not yet gone to trial, did not warrant the death penalty because police and prosecutors lacked forensic evidence -- including a gun, DNA or the victim's body. He said that the body was evidently buried in a landfill and that he asked Justice Department officials to pay $500,000 to $1 million for its exhumation. The department refused, Charlton said. And without such evidence, he testified, the risk of putting the wrong person to death was too high. Charlton said that in prior cases, Ashcroft's aides had given him the chance to discuss his recommendations against the death penalty, but that Gonzales's staff did not offer that opportunity. He instead received a letter, dated May 31, 2006, from Gonzales, simply directing him to seek the death penalty. Charlton testified that he asked Justice officials to reconsider and had what he called a "memorable" conversation with Deputy Attorney General Paul J. McNulty. Michael J. Elston, then McNulty's chief of staff, called Charlton to relay that the deputy had spent "a significant amount of time on this issue with the attorney general, perhaps as much as 5 to 10 minutes," and that Gonzales had not changed his mind. Charlton said he then asked to speak directly with Gonzales and was denied. Last August, D. Kyle Sampson, then Gonzales's chief of staff, sent Elston a dismissive e-mail about the episode that said: "In the 'you won't believe this category,' Paul Charlton would like a few minutes of the AG's time." The next month, Charlton's name appeared on a list of prosecutors who should be fired, which Sampson sent to the White House. In April, Gonzales testified in Congress that Charlton had used "poor judgment in pushing forward a recommendation on a death penalty case." An internal Justice Department memo, laying out the reasons each prosecutor had been fired, said Charlton had shown "repeated instances of defiance, insubordination." At least one former Justice Department official has expressed a different view. James B. Comey, deputy attorney general under Ashcroft, testified last month that Charlton once had persuaded him not to pursue the death penalty. "Paul Charlton was a very experienced -- still is very smart, very honest and able person," Comey told lawmakers. "And I respected him a great deal and would always listen to what he had to say." (source: Washington Post, June 28) SOUTH DAKOTA----impending execution//volunteer South Dakota execution scheduled for July South Dakota death row inmate Elijah Page is scheduled to die sometime next week from a lethal injection. The exact date and time have not been released. Page's execution was delayed last summer when the state's lethal injection laws were questioned. New laws are in place but some opponents of the death penalty say they only complicate the issue and lay the ground work for further legal challenges from other death row inmates. Sioux Falls, S.D. South Dakota's new capitol punishment laws went into effect July 1. The legislation lets the warden decide how to carry out a lethal injection and how many drugs are used. The new laws also prohibit physicians from witnessing executions. Post-mortem examinations are no longer required on the body. State Rep. Bill Thompson (D-Sioux Falls) says he opposed the changes in law. Rep. Bill Thompson"The state has not dictated to any degree how the execution will be carried out. I know that makes it easier in dealing with the number of chemicals and lethal injection and so on, and who's responsible for doing what," says Thompson. "But it seems to me it also introduces a complexity because it becomes capricious and arbitrary the execution itself because of a lack of stated protocol." There are four men on South Dakota's death row including Elijah Page. Page and two other men beat, stabbed and tortured Chester Allen Poage. Page was convicted 7 years ago for the brutal murder of Poage in Spearfish. Page pleaded guilty and a judge sentenced him to die. John Fitzgerald was the prosecutor in that case and he asked for the death penalty. "There are just some crimes that are so over the top that the death penalty is the only punishment that fits the crime. It's the only punishment that society can feel that justice is served," Fitzgerald says. Elijah Page has stopped his appeals and has asked to die. He won't challenge the state's execution laws. Elijah PageBut that doesn't mean the 3 other men on South Dakota's death row won't. Donald Moeller is one of those men. Moeller's attorney says in court documents the governor essentially declared the old death penalty laws unconstitutional, therefore Donald Moeller should have his death sentence reduced to life without parole. For others, the real debate isn't how death row inmates should die, but whether they should die. Gregory Joseph, state policy director with the National Coalition to Abolish the Death Penalty, doubts the new South Dakota laws will stand up in court. Joseph says South Dakota lawmakers copied laws already being challenged in Florida and California. Questions about the constitutionality of lethal injection have been raised in 9 states, including Florida and California. Those states have put all executions on hold until the matter is resolved. Gregory Joseph says the new South Dakota laws create a veil of secrecy around the execution chamber. "The fact that you will not be able to know or learn from your mistakes by having a postmortem autopsy and measuring the levels of drugs in the individual's system to know what levels for the right body rate, they have done none of this," Joseph says. "They have actually passed laws that make it illegal for a physician to be in the room." Death row located in this buildingProsecutor John Fitzgerald will witness Elijah Page's execution. He says people should be thinking of the victim, not the convicted criminal. Fitzgerald argues the details of this murder are so heinous, death should be the only punishment. Fitzgerald is frustrated some of those details are starting to fade when he retells the story of the murder. "I forgot to mention how they mutilated his body," Fitzgerald says. "That basically, they kicked him so many times they kicked his ears off his head. That Elijah Page had at one point, he said, 'I got to quit now because my foot hurts.' Some of those details start to go away and the best thing is to remember the innocent life that was taken and the circumstances of the innocent life that was taken and focus on that." Elijah Page is scheduled to die the week of July 9. The warden will give at least 48 hours notice for the date and time of the execution. Department of Correction documents list the 3 drugs that will be used in the execution. (source: Minnesota Public Radio) TENNESSEE: "Tennessee's Death Penalty Gets A Closer Look Tennessee lawmakers are taking a hard look at the states death penalty and whether or not its fair. Exactly 1 week before Philip Workman's execution just 2 months ago, a question about the percentage of people on Tennessee's death row being from 1 county. Workman wondered why Shelby County, his home town with only 15% of the states population, made up nearly 1/2 of those on death row. Experts ask themselves if Shelby County is a more violent county or were county prosecutors more aggressive in their pursuit of the death penalty? Those are just a couple of questions of a growing list that a......new state commission will study. Anti-capital punishment advocates, like State Coalition Against State Sponsored Killing, lobbied lawmakers hard to change their stance and approve the death penalty study commission this year. One advocate said, We thought that asking the legislature to take a look and at least insure that the death penalty was fair in Tennessee was a very reasonable step. Lawmakers deemed that 16 people ranging from victim rights advocates to capital punishment opponents will make up the commission. 6 of those people will be appointed by the Governor and leaders of both legislative chambers. The commission will have a year to write a report for lawmakers to consider. (source: WKRN News)
[Deathpenalty] death penalty news----TEXAS, FLA., USA, S. DAK., TENN.
Rick Halperin Mon, 2 Jul 2007 15:24:08 -0500 (Central Daylight Time)
