Feb. 19
TEXAS:
If you see a crowd at the courthouse Friday, it's those anti-death penalty
people calling on the DA
This here is a public service announcement on an anti-death penalty observance
taking place this weekend in North Texas. It kicks off with a press conference
at the Dallas County criminal courthouse, at the office of District Attorney
Craig Watkins.
As this newspaper has written before, Watkins, considering his race and
background, has become the most unlikeliest of DA's to lead the state - and
probably the nation - in sending people to death row. (An editorial called it
the county's "dubious distinction.")
Remember, Watkins' great-grandfather was executed by Texas in 1932 and was
buried in the prison cemetery in Huntsville. Watkins has expressed moral
opposition to putting people to death, while acknowledging that it's his sworn
duty to uphold the law. Watkins also says there are racial undercurrents in the
criminal justice system that can't be denied.
This makes it fascinating that anti-death penalty activists will be on Watkins'
doorstep Friday morning. They probably have more common ground with this DA
than probably any other, and they would have a bigger beef with his prosecution
record than any other. Ponder that.
Here is the announcement for Friday's event, from the Texas Coalition to
Abolish the Death Penalty:
In conjunction with the Annual Conference of the Texas Coalition to Abolish the
Death Penalty in Fort Worth on February 22, 2014, Board Member Rev. Jeff Hood,
members Rev. Wes Magruder of the North Texas Annual Conference of the United
Methodist Church and Lynn Walters of Hope for Peace and Justice will conduct A
Faithful Pilgrimage to Abolish the Death Penalty from Dallas to Fort Worth on
Friday, February 21, 2014.
The approximately 35-mile walk will begin with a press conference with other
Dallas faith leaders at the Dallas County District Attorney's Office in the
Frank Crowley Courts Building at 133 N. Riverfront Blvd., L.B. 19? Dallas,
Texas 75207 at 8:30 am, proceed from Dallas through Grand Prairie and Arlington
along Texas-180 West and conclude with a rally and press conference with other
Fort Worth faith leaders outside the Tarrant County District Attorney's Office
in the Tim Curry Criminal Justice Center at 401 West Belknap Fort Worth, Texas
76196 at approximately 9:00 pm.
We encourage all who are inspired by or interested in this walk to meet us in
Fort Worth for a concluding press conference and rally right outside the Tim
Curry Criminal Justice Center at 9:00 pm.
(source: Rodger Jone, Editorial Writer, Dallas Morning News)
*****************
Executions under Rick Perry, 2001-present-----271
Executions in Texas: Dec. 7, 1982-present----510
Perry #--------scheduled execution date-----name---------Tx. #
272------------Mar. 19-------------------Ray Jasper-----------511
273------------Mar. 27-------------------Anthony Doyle-------512
274------------Apr. 3--------------------Tommy Lynn Sells-----513
275------------Apr. 9--------------------Ramiro Hernandez----514
276------------Apr. 16-------------------Jose Villegas--------515
277------------May 13--------------------Robert Campbell------516
(sources for both: TDCJ & Rick Halperin)
PENNSYLVANIA:
Death penalty sought in homeless man's slaying in Doylestown
A Doylestown man accused in the brutal stabbing and beating death of an elderly
U.S. Army veteran near the borough train station could face the death penalty.
Prosecutors on Wednesday put Dale Wakefield, 21, on notice that they will seek
capital punishment if he's convicted of murdering 71-year-old George Mohr.
Wakefield got the news during his arraignment hearing in Bucks County Court in
Doylestown.
Prosecutors say Wakefield attacked Mohr after the homeless man approached him
and asked for money in the early morning hours of July 3.
Mohr, whose last known address was in Arizona, was stabbed at least 71 times
and suffered massive head trauma. A passerby found him sprawled on the ground
in a pool of blood on South Clinton Avenue around 2:45 a.m. Rescue workers
initially thought that he'd been struck by a train.
Mohr died July 6 in a Philadelphia hospice. The slaying was the first murder in
the county seat in more than 40 years, officials said.
Police say Wakefield escaped to Baltimore after the killing. He was arrested
and jailed there, then mistakenly released by jail staff before being
recaptured several hours later and returned to Pennsylvania.
Prosecutors say Wakefield confessed to his sister that he killed Mohr. She
alerted authorities.
Wakefield did not testify at the brief hearing before county Judge Wallace
Bateman. In a clear, steady voice he answered "yes" when the judge asked him if
he understood the charges.
To make a murder a capital case, prosecutors must identify an aggravating
factor in the slaying. In Wakefield's case, the aggravator is torture.
First Assistant District Attorney Michelle Henry declined to comment on the
charges Wednesday. Wakefield's lawyers from the county Public Defender's Office
also refused to talk about the case.
Wakefield's attorneys told Bateman that they would need time to hire "experts,"
but did not indicate if a mental health defense is in the works.
Numerous sheriff deputies surrounded Wakefield inside the courtroom. The
21-year-old has a history of violence, police say.
According to court records, he previously pleaded guilty to terroristic threats
and simple assault for an incident in which he reportedly shot at his mother
with a BB gun and held a knife to her throat near her home in Carbon County. In
2012, Wakefield was accused of threatening a security guard at the Connecticut
trade school he was attending, causing the campus to go into lockdown.
Wakefield is charged with 1st-degree murder and aggravated assault. He remains
in the county prison without bail and will stand trial in October.
(source: Bucks County Courier Times)
VIRGINIA:
Another Chance for the Justices to Say No to Prosecutorial Misconduct; Virginia
prosecutors hid exculpatory evidence and defied a federal judge in a
death-penalty case. Will the Supreme Court let them get away with it?
Justice Sonia Sotomayor is 1 of only 2* current members of the United States
Supreme Court with experience as a prosecutor and she has often said, even as
recently as a few weeks ago, that this background pushes her to expect more and
better from the prosecutors whose hands are forever dirtied by the cases they
handle. If she is serious about this, she will able to demonstrate it Friday
morning when she meets in private conference with her colleagues to discuss a
Virginia case the Court has been asked to accept for review.
Wolfe v. Clarke is about a murder conviction and death sentence that unraveled
under the force of the truth. It is a case about state prosecutors getting
caught hiding exculpatory evidence, and getting scolded for it by the federal
courts, and then violating the federal court order sanctioning them by
threatening a witness and spoiling the retrial of a man they helped to wrongly
convict. It is a case where prosecutors did all of this, right up to the brief
they filed with the justices, without an evident shred of public contrition for
their improper conduct.
If the Supreme Court lets Virginia get away with this, your fair trial rights
will never be the same.
All of this makes me think 1 of 2 things will likely happen to Wolfe v. Clarke.
Either at least 4 justices will agree that the prosecutorial misconduct that
occurred here is so egregious that it merits review, in which case we'll get an
oral argument later this year and a ruling sometime after that. Or the Court
will turn its back on this case and we will get a pointed dissent from the
denial of certiorari from Justice Sotomayor in which she laments the Court's
continuing abdication of its role as guardian of Sixth Amendment rights.
There is a simple factual narrative about the case - about what state
prosecutors were willing to do first to gain and then to regain a murder
conviction against Justin Michael Wolfe. And there is a more complex legal
narrative about the standards the federal courts ought to apply when
prosecutors behave as badly as they have in this instance. But don't be fooled
by the distinctions: If the Supreme Court lets Virginia get away with what has
been done to Wolfe, the fair-trial rights of all of us will be jeopardized.
Commonwealth v. Wolfe
On March 15, 2001, Daniel Petrole was shot and killed outside of a townhome he
owned in Northern Virginia. The police promptly arrested Owen Barber as the
suspected shooter. But there was a twist. The police also were convinced that
Barber had been hired to kill by Justin Michael Wolfe. One detective told
Barber about this theory and suggested to the suspect that the commonwealth
might "entertain the idea of not charging him" with the death-penalty-eligible
crime if he incriminated Wolfe. This exchange was memorialized in a written
police record that prosecutors never disclosed to the defense at Wolfe's trial.
There was more. State officials also withheld from Wolfe's defense team
evidence that Barber and Petrole had a contentious history with one another,
that Petrole had a "hit" out on Barber at the time of Petrole's death, and that
Barber's roommate had told prosecutors that Barber had told him that he had
acted alone. All of this evidence was manifestly exculpatory because it would
have helped the defense impeach Barber's credibility. Under the constitutional
principles set forth in Brady v. Maryland, known as the "Brady Rule," state
prosecutors had an absolute duty to share this information with Wolfe.
Faced with the choice between a death sentence and incriminating someone else,
Barber did what a lot of people in his position do: He caved. He made the deal.
The only direct witness against Wolfe, he delivered for the commonwealth the
conviction and death sentence they had sought against Wolfe. He was the star
witness - the murderer telling jurors that he had been commissioned to commit
murder. Wolfe's state appeals went nowhere. He was scheduled for execution. But
then, from prison, Barber recanted. And after years of legal tumult, a federal
judge took his recantation seriously enough to hold an evidentiary hearing.
This hearing took place in November 2011 - approximately 9 years after Wolfe's
conviction and sentencing. Barber told the judge that he had lied at the trial
and that Wolfe had no role in the murder of Petrole. Of the prosecutors, Barber
said: "[T]hey said they wanted the truth, but at the same time they said that
this is what you have got to say or you are getting the chair." At this
hearing, state officials conceded that they did not always disclose exculpatory
evidence to defense counsel. They "choreographed and coordinated witness
testimony through a series of joint meetings," the judge concluded.
The Courts Respond
U.S. District Judge Raymond A. Jackson, a former Army captain and federal
prosecutor, was the trial judge who presided over this hearing. His amended
order of July 26, 2011, in which he granted Wolfe relief, is worth reading
today for a sense of just how far these prosecutors diverged from standards of
professional conduct. They didn't just hide material evidence from Wolfe. They
didn't just tamper with witness testimony. They then sought to hide their
misdeeds by arguing, over and over again, that it was everyone else who was
lying under oath. That the only credible story was the one they were spinning.
They didn't just hide material evidence. They didn't just tamper with witness
testimony. They then sought to hide their misdeeds by arguing that everyone
else was lying under oath.
To Jackson, this was not a close call. Prosecutors had evidence from many
different sources, including the police, that undermined the credibility and
reliability of the lone direct witness against Wolfe and they shared none of it
with the defense. Citing Brady, the judge vacated all of the convictions
against Wolfe and ordered Virginia to retry him, if it chose to do so, within
120 days. Virginia did not accept this verdict or take responsibility for the
pattern of misconduct the judge chronicled in his order. Instead, it appealed
Jackson's order.
The Fourth U.S. Circuit Court of Appeals, among the most conservative in the
nation, upheld Jackson's ruling, writing that the trial judge had "rightly
lambasted" prosecutors for conduct that was "abhorrent to the judicial
process." It was not the first time this court had chastised these prosecutors
for illegally withholding evidence. The Fourth Circuit used the word
"flabbergasted" to describe its reaction to the concession by Virginia's
prosecutors that they routinely violated their constitutional obligations under
Brady by keeping exculpatory away from defendants.
Let's pause here for a moment. If this were all this case were about, if this
were the moment at which prosecutors began to dutifully comply with their legal
and constitutional obligations, we'd have what amounts to a run-of-the-mill
Brady case where prosecutors cheat, get caught, get punished, and promise to do
better next time. These cases happen far too often, and the courts have done
too little to prevent it, and a great many cases of such misconduct go
unnoticed. But from here things got worse in this case. Virginia, unrepentant,
still refused to follow the law or the courts' commands - and so state
officials again went after Barber.
Virginia v. Barber, Round II
Virginia went after him again to get him to recant his recantation - and to
again incriminate the man he said he had falsely incriminated more than a
decade earlier. Prosecutors did this even after 2 federal courts had sanctioned
them for their handling of Barber the first time around. Only this time,
Barber, older and wiser, didn't cave. Instead, he found himself a lawyer, who
promptly told state officials that Barber was going to exercise his Fifth
Amendment right against self-incrimination. If Virginia were going to retry
Wolfe, Barber's attorney told prosecutors, they would have to do so without his
client.
But this didn't stop prosecutors either. First, they promised Barber immunity
from prosecution so long as he testified "truthfully." As Wolfe's lawyers
quickly pointed out, however, the state's version of the truth is different
from Barber's version of the truth. If Barber testifies truthfully from his
perspective, that is to say if he exonerates Wolfe, Virginia is poised to
prosecute him for perjury. And if Barber testifies truthfully from the
perspective of the state, that is to say he incriminates Wolfe, he will perjure
himself for real. The Constitution, the defense lawyers say here, doesn't
require someone to make that awful choice.
In the alternative, Virginia proposed, if Barber himself were unavailable to
testify in person against Wolfe, state prosecutors would simply read jurors the
transcript of Barber's initial testimony at Wolfe's original trial. Barber
would incriminate Wolfe all over again, at least on paper, and defense
attorneys would be precluded from informing jurors that Barber himself no
longer stood behind those words. This, the defense attorneys reminded the
courts, would obviously violate Wolfe's Fifth Amendment right to confront his
accuser. The dispute thus found its way back into the laps of the courts.
Jackson was furious. Not only had prosecutors failed to retry Wolfe within the
120-day limit but Virginia had "incurably" ruined his chance for a fair retrial
by precluding him from calling Barber as a defense witness. The Fourth Circuit
agreed that prosecutors again had again failed to meet their obligations but
refused to block a retrial. The appeals court thus embraced a restrictive
approach, in conflict with those taken by other appellate courts, and that's
the essential question now before the Supreme Court: How badly may prosecutors
act before their actions precluded them from retrying a capital suspect?
The Stakes
More than anyone else on the Supreme Court, Sotomayor understands both the
pressures and the obligations of being a prosecutor. For more than 4 years she
worked as an assistant district attorney for one of the nation's busiest - and
most honored - prosecutors, New York County District Attorney Robert
Morgenthau. And I can't help but think that she became increasingly dismayed as
she read through the briefs here, not just because of what they say about the
prosecutors but for what they say about the tangle of procedural rules that
judges have constructed to permit state officials to do what they've done here.
This should not be a close case. The prosecutorial misconduct here is so
obvious, and so continuous, that the courts long ago should have precluded a
retrial as a sanction against the state. To do otherwise, as the Fourth Circuit
suggests, is to tell prosecutors everywhere that defendants like Wolfe have no
meaningful constitutional protection - rights without remedies. And for what?
If Wolfe is retried, in these circumstances, the whole gang will be back in
federal court 3 years from now fighting over how badly his constitutional
rights were violated by Virginia's insistence upon using Barber's transcript
testimony.
Sotomayor is not always shy in expressing her disgust with the hands-off
approach the Roberts Court often takes in these criminal procedure cases. Last
November, for example, she dissented from the denial of certiorari in an
Alabama case involving an elected judge who overrode a jury's verdict to impose
a death sentence against a man the jury had recommended a life in prison
without parole. Her dissent sparked a needed national debate over the role of
elected judges in capital cases - which of course was her point. Maybe one day,
because of this debate, Alabama will change its unfair rule.
And last month, notably, Sotomayor expressed herself again in a certiorari
dissent in a case involving a federal prosecutor in Texas who made racially
charged remarks to a jury. Unable to persuade her colleagues to care more about
these troubling cases and unlike her colleagues in that she understands the
pressures that push prosecutors to cheat, she is unafraid to use these dissents
as bully-pulpit moments - to shed light on misconduct even if she cannot
herself change it. The question this week is whether enough of her colleagues
will join her this time to bring any relief to Justin Wolfe.
--
* As an early reader pointed out, Justice Samuel Alito is the other member of
the Court who served as a prosecutor. But his view of these cases, especially
in the context of the death penalty, is almost diametrically opposed to that of
Justice Sotomayor. It will be fascinating to see how he reacts to the facts of
this case and how far the gulf is between his take on this case and the take we
can expect from Justice Sotomayor.
(source: Andrew Cohen, The Atlantic)
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