July 20
KENTUCKY:
Lexington Death Penalty Case That Was Overturned May Be Headed Back To Court
It appears that a Lexington death penalty case that was overturned by the
Kentucky Supreme Court will be headed back to trial next year.
Carlos Ordway was in court Friday morning, where attorneys scheduled a status
hearing for October 25. Prosecutors and defense attorneys said they should be
ready to set a new trial date by then.
Ordway was convicted in 2010 of two counts of murder for the shooting deaths of
Patrick Lewis and Rodrieques Turner. Police say all three men had been involved
in a bank robbery in Louisville where two tellers were shot.
The high court overturned the verdict last year after finding numerous problems
with the trial, including improper testimony and a juror that should not have
been seated.
(source: lex18.com)
NEBRASKA:
Affidavit reveals link between Omaha deaths ---- Police discover similarity of
stab wounds on victims' necks
Police called in May to an Omaha home where a prominent pathology doctor and
his wife had been killed noted striking similarities between the stab wounds on
the right side of the victims' necks and those inflicted on an 11-year-old boy
and a housekeeper slain 5 years earlier.
That parity was detailed in an arrest affidavit unsealed Thursday in the case
of Dr. Anthony Garcia, who is charged with 4 counts of 1st-degree murder and
weapons counts in the May deaths, as well as the slayings in 2008.
Police soon discovered it wasn't just the stab wounds that linked the victims.
The slain doctor, Roger Brumback, was the chairman of the Creighton University
School of Medicine's pathology department. The boy stabbed to death five years
earlier in a nearby neighborhood was the son of a professor who worked closely
with Brumback in the same department. That connection led police to research
those associated with the department, uncovering another eye-opener - that
Hunter and Brumback had fired Garcia from the pathology residence program for
"unprofessional conduct" in 2001.
The affidavit was used to support a Nebraska warrant for Garcia, who was
arrested Monday in southern Illinois. Nebraska prosecutors say Garcia shot and
stabbed Brumback and fatally stabbed Brumback's wife, Mary. Garcia is also
charged in the stabbing deaths of 11-year-old Thomas Hunter and his family's
housekeeper, Shirlee Sherman.
According to documents that Brumback sent to Indiana medical licensing
officials in January, Garcia was fired for trying to sabotage another Creighton
resident's efforts to complete his residency. The documents say Garcia called
the colleague's wife to needlessly demand that her husband return to the
university's pathology department. The wife then tried to contact her husband,
who was taking a high-stakes test for his residency at the time.
Documents to and from various medical schools and state medical licensing
agencies show that Garcia also left a New York residency program in 1999 to
avoid disciplinary action, and that his application for medical licenses in
various states were rejected following his firing from Creighton. Police have
cited those troubles as a likely motive for the killings.
Garcia's attorneys said Wednesday that Garcia, who was extradited from southern
Illinois' Jackson County Jail to the Douglas County Jail in Omaha on Thursday,
denies the charges.
Nebraska prosecutors are weighing whether to seek the death penalty against
Garcia. Regardless, a conviction of 1st-degree murder in Nebraska brings a
minimum sentence of life in prison without parole.
The Nebraska prosecutor, Douglas County Attorney Don Kleine, said Wednesday
that Garcia would likely be arraigned Monday or Tuesday.
Kleine did not return messages seeking comment Thursday.
The affidavit says the killer used knives found at the homes in the attacks and
that the weapons were left behind to be found by police.
Parts of a gun used to shoot Roger Brumback also were found inside his home.
The affidavit says the parts were matched to a Smith & Wesson SD9 handgun that
police say Garcia bought in March from a gun retailer in Terre Haute, Ind.,
where Garcia has been living.
Garcia made credit card purchases and a cellphone call in Iowa, about an hour
away from Omaha, on May 12, the day the Brumbacks were killed, the affidavit
said. Omaha police released a photo of a man who looks like Garcia, taken that
day inside a convenience store in Council Bluffs, Iowa, which lies across the
Missouri River from Omaha.
(source: Associated Press)
ARIZONA:
Jodi Arias Trial Update: Plea Deal Rejected; Arias Says 'Sorry Taxpayers'
Maricopa County Attorney Bill Montgomery made his position clear Tuesday: no
plea deals; Jodi Arias deserves the death penalty.
During an uncharacteristically quick hearing earlier this week, which took
place mostly in Judge Sherry Stephens' private chambers, prosecution lawyer
Montgomery rejected the defense's third attempt for a plea bargain, indicating
the state will continue to pursue the death penalty for Arias. As is the norm
at this point in the trial, Arias' Twitter account vented her passive
aggression after court let out, apologizing to Arizona taxpayers for the burden
of funding her lawyer fees.
"The State rejected my 3rd request for a plea to settle quietly and less
expensively. Off to retrial we go. Sorry, taxpayers," Arias' Twitter account
emoted.
Arias was not able to afford her own defense. Since the trial first began in
January, Arias has amounted over $1.7 in court fees, with each of her lawyers
making $250 an hour.
Oddly, the person tweeting on behalf of Arias was not her friend Donavan
Bering, a women who has been Arias' de facto mouthpiece via Twitter since
April. Inmates are not allowed to communicate through the Internet in prison.
Arias' infamy and fame have swelled thanks to her alternately antagonistic and
histrionic online musing. She currently has more than 78,000 followers on
Twitter, and sells her own artwork through a personal website.
Arias, 33, was found guilty of premeditated first-degree murder in May in the
killing of her ex-boyfriend, 30-year-old Travis Alexander, in June 2008. Arias
claimed it was self-defense, citing a history of domestic abuse and sadistic
behavior that forced her to fight for her life one day when Alexander suddenly
attacked her at his home. The state argued it was a spurned lover's final act
of revenge.
This is far from the first time the defense or Arias has resorted to such
tactics. When the trial was thrown into limbo in June following a hung jury,
Arias' attorneys Kirk Nurmi and Jennifer Willmott wrote a press statement to
the Arizona Republic claiming Arias deserved to live, because, among other
things, continuing the trial was simply a waste of tax dollars.
While no official court date was decided, Judge Stephens instructed the
prosecution and defense to prepare for a September trial date to begin Arias'
new penalty phase. The defense has until Aug. 5 to submit its final argument
for vacating the "especially cruel" ruling from the initial trial, a condition
that made Arias eligible for the death penalty.
Attempting to take the death penalty off the table, Arias' defense team has
filed a motion claiming that "especially cruel" was too vague of a term for
jurors to understand because they didn't possess adequate legal knowledge to
judge what specific factor would make one murder more heinous than another.
Arizona law defines "cruel manner" as when a victim suffers physical and/or
mental pain.
The defense's filing directly challenges a 2002 U.S. Supreme Court decision
that ruled defendants have the right for a jury to decide what aggravating
factors could qualify them for the death penalty.
Maricopa County Attorney Bill Montgomery denounced the defense's motion as
nothing more than a typical "procedural move."
"Those are defense attorneys doing their job advocating for their client,"
Montgomery said. "Obviously, we disagree."
Arias' next court date is scheduled for Aug. 26.
(source: Latinos Post)
CALIFORNIA:
Death sentence for former Marine who murdered couple
A judge handed down a death sentence Friday, July 19, for one of three Marines
convicted of murdering a fellow Marine and his wife in 2008, saying the "savage
brutality" of the crimes suggests he is "a man without a semblance of morality
or a conscience."
Tyrone Miller, 25, wore a stony expression as he sat in a Riverside courtroom
through tearful statements from more than a half dozen of his victims'
relatives and also as Judge Christian Thierbach sentenced him to death.
Henryka Varga lamented Miller's apparent lack of remorse for the killings of
her son, Marine Sgt. Jan Pietrzak, and her daughter-in-law, Quiana
Jenkins-Pietrzak.
"He has no respect for human life," Varga said.
"Look, he's yawning," she said, gesturing towards Miller, who sat in shackles
and orange jail clothes. "It's boring to him."
Testimony in the trial began in April and 2 juries heard the case against the 3
defendants -- all former Marines. Miller, Emrys John, 23, and Kevin Cox, 25,
were found guilty June 5 of 2 counts of murder and allegations of burglary and
robbery in the shootings of Pietrzak, 24, and Jenkins-Pietrzak, 26. John was
found to have been the shooter. Miller was found guilty of murder in the
commission of a sexual assault on Jenkins-Pietrzak.
Jurors on June 20 recommended the death penalty for Miller and John, and
returned a life without the possibility of parole verdict for Kevin Cox, 25.
John and Cox are scheduled for sentencing Aug. 16.
A 4th defendant, Kesaun Sykes, 26, will be tried separately on the same charges
and prosecutors are also seeking the death penalty for him. His next court date
is scheduled for August.
There are more than 700 inmates on the state's death row, yet only 13 have been
put to death since 1978, according to the California Department of Corrections
and Rehabilitation. Due to ongoing legal questions over lethal injection
protocols, the last California execution was in 2006.
The Pietrzaks were newlyweds and had been living in their Bermuda Street house
for a few months when 4 Marines armed with guns came to their door in the wee
hours of Oct. 15, 2008, prosecutors have said. Several hours later, the
couple's bodies were found in their ransacked home with gunshot wounds to their
heads. Jenkins-Pietrzak was naked, bound and had been sexually assaulted. There
was duct tape wrapped around her head and spray-paint on her body. Her husband
had been beaten, hog-tied and gagged with a sock.
Cox, John and Miller all worked with Pietrzak - a helicopter mechanic - at one
time while stationed at Camp Pendleton.
Prosecutor Daniel DeLimon said the motive for the killings was robbery, but
that the defendants also got a sadistic thrill out of committing crimes. He
portrayed Miller, who admitted to disliking Pietrzak, as the mastermind.
The defense argued that Miller, then 20, never intended to kill, that he was
upset over an alleged threat Pietrzak had made to his promotion and that he was
extremely intoxicated the night of the murders.
Varga said in court Friday that she tortures herself thinking about the
horrible way in which her son and daughter-in-law died. She said no penalty
will ever satisfy her.
"What I want...I want my children back. I want my life back," she said.
Varga, who moved to the United States from Poland with her family when her son
was 10 years old, said she used to think she was living the American dream.
"But now," she said, "this is (an) American nightmare."
Jenkins-Pietrzak's mother, Glenda Faye Jenkins, wiped tears from her eyes as
she spoke in court, wearing a T-shirt with a smiling photo of her daughter on
the front.
"I always say my lights went out on Oct. 15, 2008," she wrote in her statement
to the court, part of which was read by a victims advocate.
Since the murders, Jenkins said, she has been "an empty shell that walks and
talks."
When the killers took the lives of her only child and her son-in-law, she said,
"They took my life, too."
"They were my reason for living," Jenkins said, "my heart and soul."
(source: Press-Enterprise)
*********************
Ex-Marine sentenced to death for S. Calif. murders
A former Marine was sentenced to death Friday for the murders of a fellow
Marine and his wife in what a judge called an attack of "savage brutality" on
their Southern California home.
Riverside County Superior Court Judge Christian Thierbach ordered the sentence
for 25-year-old Tyrone Miller, 1 of 3 former Marines convicted of killing Sgt.
Jan Pietrzak and his wife, Quiana Jenkins-Pietrzak in 2008. The couple was
found gagged, tied and shot in the head in the living room of their Winchester
home.
Miller lacks "even a semblance of morality or a conscience," Thierbach said
during sentencing.
Miller was convicted last month with 2 other former Marines of 1st-degree
murder with special circumstances of murder during a robbery and burglary and
multiple murders. He looked straight ahead as Thierbach spoke. He did not speak
on his behalf during the hearing.
Jurors have recommended the death penalty for Emrys John, 23, and life without
parole for Kevin Cox, 25. They are scheduled to be sentenced Aug. 16.
A 4th former Marine charged in the killings, Kesaun Sykes, 26, is being tried
separately.
Prosecutors say the 4 men went to Pietrzak's home in October 2008 to rob him
and forced their way inside. Pietrzak, who was Miller's supervisor at Miramar
Marine Corps Air Station in San Diego, was assaulted and his wife was sexually
assaulted before they were killed. Jewelry was missing and a fire was set in an
apparent attempt to destroy the evidence.
Prosecutors have said Miller told another Marine after the shooting that he
handed a gun to John that night and said, "Do them." During trial, Miller
testified that he did not order the killings or see who fired the fatal shots.
Pietrzak's mother, Henryka, said she was pleased the judge handed down the
toughest sentence possible, but not even that could satisfy her.
"No ruling and no money can bring them back," she said after the ruling. "Their
presence is what we crave."
Defense attorney John Dolan said while he didn't agree with jurors'
recommendation of death for Miller, he respected their decision. He said the
case would automatically be appealed.
"This is a day when we should focus on the family of the victims," he
said.Miller, who grew up in North Carolina, testified in May that he was upset
when he went to Pietrzak's home because the sergeant had told him he would not
get a promotion. Miller said he was drunk on brandy and tequila and fought with
the helicopter airframe mechanic and wrote racial slurs on the walls in an
attempt to hurt Pietrzak's feelings. Pietrzak's wife was black.
During the hearing on Friday, Jenkins' mother, Faye, told the court that losing
her only daughter and son-in-law had turned the world she knew into a cold,
lonely place.
Even now, she prays the devastating news won't be true and somehow the couple
will be returned to her, according to her impact statement.
"I keep my front porch light on in hope she'll find her way home to me,"
Jenkins wrote in remarks that were read aloud to the court by a victim's
advocate after she broke down sobbing.
Prosecutor Daniel DeLimon said Miller deserved the death sentence but it
doesn't make victims' relatives feel any better.
"This isn't a happy or joyous moment," he said. "It's just the only option."
(source: The Tribune)
US MILITARY:
Maj. Nidal Malik Hasan - Defendant
Maj. Nidal Malik Hasan was born in Arlington, Vir., in 1970 to parents of
Palestinian descent. He graduated from Virginia Tech University in 1992 with an
engineering degree. In 1995 he began active duty service with the U.S. Army.
Hasan, 42, entered medical school at the Uniformed Services University of the
Health Sciences in 1997 and graduated in 2003. He had his residency at Walter
Reed Army Medical Center from 2003 to 2006 in the center's psychiatry program.
According to a senate report on domestic terrorism, outward signs of religious
radicalism began to manifest in his performance and interactions with
colleagues during his residency, despite uniformly positive performance
reviews. In his third year of residency, a superior urged Hasan to resign his
commission. A captain at the time, Hasan also explored seeking conscientious
objector status in 2006.
His reported Islamic extremism came into plain view as he concluded his
residency. In a study he authored in 2008, Hasan suggested that revenge might
be a motive for the Sept. 11, 2001, terrorist attacks and presented extremist
interpretations of the Quran indicating a support for harming non-Muslims.
Despite criticism for a lack of scientific merit, Hasan was allowed to graduate
the program.
He entered post-residency fellowship at USUHS from 2006 to 2008, which he later
confided to a colleague that he only applied for the position to avoid
deployment to a Muslim country. The lone applicant, the university accepted
him.
Classmates there reported Hasan used nearly every available opportunity to
espouse beliefs that continued to teeter towards radical fundamentalist Islam.
In August 2007, he gave a presentation titled "Is the War on Terror a War on
Islam: An Islamic Perspective?" theorizing the wars in Iraq and Afghanistan
targeted Muslims and gave a hypothetical defense of Osama bin Laden. At this
point, several classmates later said Hasan began to make statements supporting
radical Islam and suggested that similar views could lead to murder within the
ranks. Over the course of the following months, he dedicated study to 2 more
projects revolving around the study of radical Islam.
Despite being in the bottom 25 % in both his residency at Walter Reed and the
fellowship at USUHS, Hasan received glowing performance reviews and was
recommended for promotion to major. He deployed to Fort Hood in late 2008 and
was promoted in May 2009. His superior then gave him orders to deploy to
Afghanistan in the fall of 2009.
Hasan has admitted to the Nov. 5, 2009, shooting that left 12 soldiers and one
civilian dead in numerous forums. From statements to court documents, Hasan has
said he carried out the mass shooting with a motivation consistent with the
senate report relating to Hasan entitled "A Ticking Time Bomb." He has since
made his opposition to the war in Afghanistan apparent, calling it an illegal
war. His views may have led him to choose the location of the shooting spree
that he allegedly committed at a Fort Hood installation where soldiers undergo
routine redeployment procedures.
On the day of the shooting, many heard Hasan shout "Allahu Akbar" before
opening fire, according to past testimony. Then shooting lasted several minutes
and ended when Fort Hood civilian police shot the major four times. His wounds
left him paralyzed from the chest down. He retained Belton defense attorney
John Galligan, a retired colonel with the Judge Advocate General's office,
shortly after the shooting.
Since april 2010, Hasan has been held in custody at Bell County Jail in an
infirmary cell. In November 2010, after weeks of testimony in a pretrial court
hearing similar analogous to a grand jury investigation, the Army preferred 13
charges of premeditated murder and 32 counts of attempted premeditated murder,
one charge for each person killed or wounded during the attack. The Army later
authorized the death penalty as a possible sentenced for his alleged crimes. He
fired his civilian attorney prior to his arraignment.
Hasan's views on the shooting shifted after the shooting. He told a court in
2013 that fellow Muslims contacted him, telling the major he had broken his
military oath and gone against Islam when he opened fire on post. It led Hasan
to pursue pleading guilty to all charges. He submitted paperwork to indicating
his intentions. However, military justice rules disallow soldiers from pleading
guilty to capital charges if the death penalty is a possible sentence.
In the spring of 2012, Hasan told the court he had developed a keen belief that
his death was imminent. His decision was driven in part by the increasingly
visible signs of security surrounding the Fort Hood courtroom where his trial
will take place. In order to die as a dutiful Muslim, Hasan said he decided to
grow a beard. His decision bristled the presiding judge, Col. Gregory Gross.
Gross ordered Hasan to shave and repeatedly held the major in contempt of court
for disobeying his orders and defying military regulations on soldiers'
appearance.
The dust up over his beard delayed the original August 2012 start date to
Hasan's trial and ultimately led to the dismissal of the judge in December
2012. A new judge was immediately detailed to the case, and hearings resumed in
2013.
Hasan's views on the shooting appeared to revert back to the radical Isamic
beliefs he reportedly held prior to shooting as his new trial date approached.
In May, he fired his government-appointed attorneys and told the judge he was
now pursuing a defense strategy that would justify the shooting rampage as a
pre-emptive attack on the enemies of Islam. He told the court he was defending
the Taliban in Afghanistan, specifically its spiritual leader Mullah Omar.
(source: Killeen Daily Herald)
USA:
David Renz under 'high observation' in mental health unit of Onondaga County
jail
David Renz is kept in a glass-walled cell so Onondaga County sheriff's jail
deputies can watch him 24 hours a day.
Renz isn't allowed to mingle with other inmates, only leaving his 5th-floor
cell to the secure common area when no one else is there. He's been under "high
observation" since arriving at the jail in March. He's 1 of 7 inmates at this
moment in a glass-walled cell, out of a jail population of 600 or more inmates.
Renz, 29, of Cicero, pleaded guilty Wednesday to killing Lori Bresnahan and
sexually assaulting a 10-year-old girl with her near the Great Northern Mall in
Clay.
Though he's slated to go to state prison for life after his sentencing this
fall, Renz may be at the county jail longer than planned. That's because the
federal government is still deciding whether or not to pursue a death penalty
trial against him.
Renz won't be going to state prison until after that determination is made.
His 1st night in county jail, Renz suffered a broken nose while in a holding
cell with other inmates. He never should have been put into the general
population, Sheriff Kevin Walsh said at the time.
Since then, Renz has been in the jail's mental health unit under constant
supervision. He is not considered a suicide threat given his past, so he's not
under one-on-one supervision, said Deputy Herb Wiggins. But the glass walls
allow deputies to watch him at any time.
In addition to housing inmates with mental illnesses, the unit is a place for
inmates who may want to harm themselves or be harmed by others, Wiggins said.
Renz is among a growing number of mentally ill inmates at the jail which has
led to plans for a new, $30 million jail expansion.
Assuming Renz is sent to state prison, his lawyer has asked that he be placed
in a special program for high-profile inmates. The Assessment Program and
Preparation Unit is located at the Clinton Correctional Facility, a
maximum-security prison in Dannemora.
The purpose of that program is to counsel inmates before releasing them into
the general state prison population.
(source: The Post-Standard)
******************
Tide may be turning for U.S. capital punishment as recent votes reveal states
divided on life and death issue
Lawyers for Dzhokhar Tsarnaev applied this week to add a death penalty expert
to his defence team, in expectation the United States will seek capital
punishment for the accused Boston Marathon terrorist.
Prosecutors in Ohio, meanwhile, are still deciding whether to seek the same for
Cleveland kidnapper Ariel Castro.
Texas last month gave a lethal dose of pentobarbital to Kimberly Lagayle
McCarthy, 52, for the 1997 robbery and murder of her neighbour, Dorothy Booth,
71, a retired psychology professor. The crime was so brutal that, after asking
for a cup of sugar, McCarthy attacked Ms. Booth with a knife and a candelabra,
and cut off her finger to steal her wedding ring.
Kimberly McCarthy, 52, was executed for a 1997 robbery, beating and fatal
stabbing. The crack addict and former wife of a founder of the radical New
Black Panther Party was suspected in 2 other deaths. She became the 500th
person to be executed in Texas since 1982 (the 502nd was carried out Thursday),
6 years after the U.S. Supreme Court reinstated capital punishment after a
4-year legal moratorium.
Since then, America has become an outlier among industrialized nations: it is
the only executioner in the New World, alone with Japan in the Group of Seven
and Belarus in the Organization for Security Cooperation in Europe.
Public support for capital punishment remains strong, solidly 60% in both the
U.S. and Canada, which abolished it in 1976, and came within two dozen House of
Commons votes of reinstating it in 1987.
But there are signs this modern period of American justice might not last. In
March, Maryland became the most recent of five states in six years to abolish
capital punishment.
What these votes have revealed is a country formally divided, state against
state, on a life and death issue.
Virginia, Ohio and national leader Texas are lined up against New York, New
Mexico and Michigan, with California unsure where to stand, as it curiously
registers death sentences but does not carry them out. Only 9 states used it in
2012. It was 13 the year before. The national tally is 32 with, 18 without, and
closing.
"I think what's taking place is a gradual movement away from the death penalty
that now has, by almost any measure, made it into an institution used by a
minority of the population in a minority of the counties," said James Liebman,
professor of law at Columbia Law School in New York.
"But the counties that are using it are sticking to it, and the question really
is how long the majority in the U.S. will continue to be prepared to subsidize
the use of the penalty by the minority."
About 1/2 of Americans live in a jurisdiction that does not execute. Just 1
county in 10 returned even a single death sentence over a given year, and only
1% did so at a rate of more than 1 a year, according to research by Robert
Smith, assistant professor of law at the University of North Carolina Chapel
Hill.
What this reflects is the geographical pattern of the American death penalty, a
lens through which its legal vulnerabilities are being targeted.
Places like Duval and Clay counties in Jacksonville, Fla., shine especially
brightly from this angle, he said. For instance, out of the 406 inmates waiting
on Florida's death row, 60, or about 15%, were convicted in Duval County.
"As everywhere else in the country is getting better, they???re getting worse,"
Prof. Smith said.
Others include New Orleans, he said, where being charged with a downtown murder
at the state level makes the death penalty unlikely, because a jury will be
drawn from areas with high African-American populations, which are
disproportionately opposed to it. But if the charge is taken up by federal
prosecutors, the jury pool widens into the suburbs, and execution becomes far
more likely.
Prof. Liebman said the counties responsible for this trend are characterized by
parochialism and libertarianism. They are "pockets" that "simultaneously resist
the idea of government control...and feel under stress from outside forces of
modernization."
The result is a heightened fear and revulsion at out-of-the-blue stranger
crimes.
(source: National Post)
******************************
SCOV Law Blog: Raising the bar on prisoner appeals
[note: This piece from the SCOV Law Blog is by David Rangaviz]
In re Russo, 2013 VT 35
Prisoners file a lot of cases.
This is both self-evident and a little confusing. For most criminal cases, the
process starts with an arraignment where the charges are heard followed by a
courtroom trial (unless the defendant accepted a plea agreement - which most
do). If found guilty the defendant then appeals to the SCOV. If the SCOV
affirms, the appeal is over.
The end, right?
Wrong.
Criminal cases rarely end with the direct appeal from conviction. In Vermont
state court, prisoners who lose on appeal can file petitions for
post-conviction relief (PCR). And, if all else fails, any prisoner (both state
and federal) can file a petition for a writ of habeas corpus in federal court.
In 2012, prisoner petitions made up about 20 percent of all civil cases filed
in federal courts - 54,300 petitions in total.
This wasn't always the case. In 1966, prisoners filed only 218 civil rights
lawsuits in federal courts. A broadening of criminal laws, with a corresponding
increase in incarcerative sentences, has led to a boom in the prison
population. Although other factors undoubtedly play a role, more prisoners with
longer prison terms generally mean more prisoner lawsuits.
These cases are almost always filed pro se (without a lawyer) and are
dismissed. Given the overwhelming volume, courts have to work hard to separate
the wheat of meritorious cases from the chaff of frivolous ones. This is a
delicate balancing act. Give prisoners too much leeway and they will consume
increasingly finite judicial resources (I'm talking to you, sequestration).
Construe their claims too harshly, however, and you risk imprisoning the
innocent or permitting the continuation of unconstitutional prison conditions
or practices. There are needles in this haystack.
At the federal level, Congress responded to the glut of prisoner litigation by
the passage of the Prison Litigation Reform Act (PLRA) and the Antiterrorism
and Effective Death Penalty Act (AEDPA) in 1996. Those acts, along with
subsequent court decisions, have imposed a number of procedural and substantive
hurdles that prisoners must traverse before being allowed to present their
claims in court.
For example, under the PLRA prisoners who file civil rights lawsuits must now
"exhaust" their administrative remedies in prison - meaning that if they have a
complaint about prison conditions, they must first file an internal grievance
within the prison (and appeal that grievance to the highest level allowed)
before filing a federal lawsuit. (The Supreme Court has interpreted the PLRA
exhaustion requirement particularly harshly.)
AEDPA imposed a similar requirement on habeas petitions from state prisoners.
To exhaust their remedies under AEDPA, state prisoners must first present their
federal claims in state court before proceeding to federal court. But even if
the prisoner exhausts his state remedies and the state court gets it wrong, the
federal court cannot necessarily reverse the judgment. Under AEDPA, the state
court's application of federal law must be both wrong and "unreasonable" (that
is, pretty obviously wrong).
In addition, these laws limit the number of cases that prisoners can file. The
PLRA includes a "3 strikes" limitation on prison civil rights lawsuits: if
three prior cases filed by the prisoner are dismissed, the 4th must be
accompanied by payment of the full filing fee (a prohibitive cost for most
indigent prisoners). In the area of habeas corpus, AEDPA bars prisoners from
filing second and successive petitions unless they get specific court
permission to do so.
Even if they surmount all of these (and other) hurdles, however, prisoners are
almost always met by a motion to dismiss. They file a complaint in court pro
se, and a government lawyer immediately responds by claiming that the
prisoner's petition is, in some sense, legally defective, effectively arguing
that the case should be kicked out of court before the defendants need to
answer or any discovery takes place.
Fortunately for prisoners (and other plaintiffs), petitions at the motion to
dismiss stage are read liberally in favor of the plaintiff. The allegations are
assumed to be true, and the court will then assess whether those allegations
state a legally valid claim. The theory behind this standard of review is that,
when no evidence has yet been submitted, there is no basis to rebut a
plaintiff's factual allegations. As a result, we must assume their veracity and
assess whether they support the legal claim the plaintiff asserts.
Prisoners face many hurdles to having their day in court. They have to worry
about filing fees, exhaustion, restrictive statutes of limitations, immunity,
standards of review, and, above all else, the legal substance of their claims.
Many prisoner claims are frivolous; but not all of them. Prisoners, like other
litigants, should be able to rely on generally applicable pleading rules -
i.e., that their allegations will be treated as true before discovery begins -
to know that their complaints will survive a motion to dismiss if they state a
legally valid claim.
Today's case involves a 3-2 split among SCOV about how to read prisoner
submissions in the face of one such government motion to dismiss.
The facts are relatively straightforward.
In November 2002, petitioner was arrested after an altercation with his former
mortgage holder in which he allegedly shot at him during a car chase.
Petitioner pleaded guilty to several violations of conditions of release, and a
jury found him guilty of aggravated assault, driving while intoxicated,
unlawful trespass, and driving with a suspended license.
He later successfully challenged his aggravated assault conviction by PCR
petition and was granted a new trial. Awaiting this new trial, petitioner was
held without bail because he was considered a danger to the community
(specifically, to the mortgage holder).
In December 2010, petitioner filed a pro se PCR petition, attacking the earlier
convictions for driving with a suspended license and violating conditions of
release.
But petitioner had already served the sentences on these convictions. The
Vermont PCR statute requires that a petitioner be "in custody under sentence"
at the time of the filing of the petition. How could petitioner challenge
convictions whose sentences he had already served?
Petitioner claimed that the judge in his new case had used the prior
convictions to hold him without bail on the pending assault charge. So even
though he is technically no longer under sentence from the challenged charges,
he is effectively so because the judge used those convictions in making the
bail decision.
The trial court dismissed, concluding that the pretrial detention order did not
suffice to establish that he was "in custody under sentence" of the challenged
convictions.
SCOV affirms. In an opinion by Justice Skoglund, joined by Chief Justice Reiber
and Justice Burgess, the majority fully agrees that petitioner failed to meet
the jurisdictional requirement for a PCR petition.
According to the majority, the relevant question is whether the detention is a
"direct result" of the challenged conviction. Here, in deciding to detain
petitioner, the judge had taken into consideration a number of factors other
than the prior, challenged convictions. Looking to the denial-of-bail order and
the hearing transcripts, the judge had referenced petitioner's criminal history
but did not mention the specific charges that petitioner now challenges.
Furthermore, petitioner had been charged with a crime of violence (felony
aggravated assault), and the court concluded that there was enough evidence to
sustain a guilty verdict on that charge. Given the other factors at play in the
bail determination, the challenged convictions were too remote in relation to
the detention order to support jurisdiction over the PCR petition.
The dissent, written by Justice Robinson and joined by Justice Dooley, would
not have dismissed the case quite so soon.
As stated, courts must assume that all of a petitioner's allegations are true
at this early stage of the proceedings, before any evidence is submitted.
According to the dissent, rather than look solely at the allegations, the
majority has expanded the record to incorporate the denial-of-bail order and
hearing transcripts without giving petitioner an opportunity to present any
evidence in response. In essence, the majority has allowed the government to
submit evidence without giving a reciprocal opportunity to the petitioner.
The dissent is careful to state that it did not necessarily agree with
petitioner's claim, noting instead that the dissent merely felt dismissal was
premature.
So who's right?
Petitioner claimed in his PCR petition that the judge "used" his earlier,
challenged convictions to hold him without bail. If we treat all allegations in
the petition as true (as we must) I don't see how the majority can disregard
this allegation, the only one relevant to the issue of causation. The majority
tries to get around this issue by expanding the record to include transcripts
and written orders from the bail hearings, but this is precisely the 1-sided
admission of evidence that requires that a motion to dismiss be transformed
into a motion for summary judgment (which would then allow the petitioner to
respond).
The majority effectively changed the rules in the middle of the game, expanding
the record to rebut petitioner's allegations without giving him a corresponding
opportunity to submit his own evidence. The closeness of the case reminds us of
the applicable standard of review - all ambiguity and uncertainty as to the
factual allegations must be resolved in petitioner's favor at the motion to
dismiss stage. The State itself had conceded that the earlier convictions were
a factor in the bail determination, but the majority disregarded that
concession in favor of its own view of the evidence. For now, that concession,
along with petitioner's allegations, should have been enough.
Prisoners face many hurdles to having their day in court. They have to worry
about filing fees, exhaustion, restrictive statutes of limitations, immunity,
standards of review, and, above all else, the legal substance of their claims.
Many prisoner claims are frivolous; but not all of them. Prisoners, like other
litigants, should be able to rely on generally applicable pleading rules -
i.e., that their allegations will be treated as true before discovery begins -
to know that their complaints will survive a motion to dismiss if they state a
legally valid claim.
Of course, I hardly blame the majority. Prisoner filings overwhelm the courts.
I'm sure this is particularly true at SCOV, as there is no intermediate
appellate court in Vermont to shoulder the load. But courts must not allow the
daunting caseload to distort their approach to prisoner cases. There is not one
set of pleading rules for prisoners and another for plaintiffs (yet). Indeed,
once they meet the requirements of the PLRA and AEDPA (in federal court) and
applicable state law rules (in state court), prisoners are no different than
any other class of plaintiffs. Assuming their mendacity rather than veracity
hardly hastens the search for meritorious cases. To the contrary, it buries the
needle deeper in the haystack, eventually tricking us into thinking there was
nothing buried there to begin with, reinforcing the belief that all prisoner
petitions are frivolous and justifying their disparate treatment. But these
petitions do not just get dismissed because they are frivolous; they get
dismissed because courts and legislatures have erected special barriers to the
courts in the belief that prisoners file only frivolous cases. Casebooks are
littered with petitions dismissed only because they were unexhausted or
untimely, with no assessment of the legal merits having taken place.
When prisoners somehow survive the hurdles uniquely applicable to them and
state a valid claim - all without a lawyer, in most cases - they should not
have to meet a higher standard of pleading than is applicable to any other
plaintiff. Courts should not be inherently skeptical of prisoner cases just
because of their volume. Each petition must be assessed on its merits, at least
to the degree that laws like the PLRA and AEDPA allow.
Of course, there is one other possible fix for the surfeit of suits: If we want
fewer prisoner petitions, maybe we should consider having fewer prisoners.
(source: vtdigger.org)
********************************
From President Obama's Remarks yesterday:
"The African-American community is also knowledgeable that there is a history
of racial disparities in the application of our criminal laws, everything from
the death penalty to enforcement of our drug laws. And that ends up having an
impact in terms of how people interpret the case."
For the entire transcript:
http://www.nytimes.com/2013/07/20/us/politics/transcript-obama-speaks-of-
verdict-through-the-prism-of-african-american-experience.html?pagewanted=1&_r=1&
(source: New York Times)
****************************
Death penalty convictions and executions are always flawed
Regarding Spencer S. Hsu's "At least 27 death penalty convictions may be
faulty" [front page, July 18]:
All executions are flawed. Consider:
--80 % of criminologists surveyed no longer believe the death penalty is a
deterrent. In fact, studies indicate an instigation effect, in which violent
crime may spike slightly following a highly publicized execution. Thus, society
may be less safe as a result of imposing lethal sanctions. --Capital punishment
is not administered fairly. When the victim is white, those convicted are four
to 11 times more likely to receive a death sentence. --It costs considerably
more to execute an inmate than to incarcerate him for life. It has been
estimated that the pursuit of a death sentence in Maryland adds $2 million to
the expense of prosecuting a capital case.
The irrefutable argument is that, with the death penalty on the books, a
government runs the risk of executing the wrong person. The exoneration of more
than 140 innocent people attests to this. It is time to eliminate the practice
altogether.
Richard Stack, Silver Spring
(source: Letter to the Editor, Washington Post)
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