Oct. 16
TEXAS:
New program for attorneys in death penalty cases
Jefferson County Commissioners Court voted unanimously to authorize County
Judge Jeff Branick to execute an interlocal agreement with Lubbock County and
the organization Regional Public Defenders for Capital Cases to provide for the
defense of indigent inmates charged with the offense of capital murder.
Jack Stoffregen is the chief public defender for the organization and has run
the office since it was established in Lubbock in 2008. He told The Examiner
they were handling cases like this for 158 Texas counties at the end of last
year and expect that number to grow to more than 200 counties this year.
Stoffregen said planning is currently underway to open a regional public
defenders office in Beaumont.
In an earlier workshop, commissioners were informed of the cost savings offered
by this plan while meeting the county's obligation to provide effective defense
counsel for those facing the death penalty who do not have enough money to
mount an effective defense - which turns out to be the majority of those facing
such charges.
In 2015, the 84th Texas Legislature appropriated additional funding through the
Texas Indigent Defense Commission Multi-Year Discretionary Grant Program. The
high cost of prosecuting a death penalty case - which includes providing
lawyers for indigent defendants - has strained the budgets of many smaller
counties who can now pay a fee proportionate with their population to
participate. Jefferson County declined an opportunity to join this program in
the past, but the additional funding has brought the annual cost to the county
down to a level where commissioners decided it made fiscal sense.
The county will pay $92,442 per year to be covered by the Regional Public
Defenders for Capital Cases. This contrasts with more than $2 million spent in
the last 5 years, including 2015 to date. The annual amounts in the past have
varied with the number of capital murder cases in a given year. In 2013, there
were 13 new cases with ongoing cases on appeal bringing the total number to 22.
The cash outlay for Jefferson County was $732,711, which makes the annual
payment of $92,442 seem like a bargain.
There are some potential additional expenses for the county. In cases where
there are co-defendants in capital murder cases, the Regional Public Defenders
for Capital Cases will only represent the 1st defendant. The county will be
responsible for appointing - and paying - for lawyers for the other defendants.
The public defender will be responsible for the fact investigators and the
mitigation specialists required to explore all punishment options when the
death penalty is sought. The cost of any additional expert witnesses will also
fall to the county.
The need for additional counsel in the multi-defendant cases will keep local
capital murder defense attorneys in the game, although probably at reduced
compensation levels. For the years 2011-15 to date, attorney Doug Barlow was
paid a total of $1,094,702 to represent indigent inmates charged with capital
murder. During that same period, attorney James Makin was paid $546,104, with
others receiving lesser amounts. Most attorneys are not qualified to represent
defendants in capital cases. A list of certified capital case attorneys who can
take the lead role in defending these cases is maintained by the judicial
district, and all of the Regional Public Defender for Capital Cases attorneys
will be on that list.
Cases where prosecutors seek the death penalty have become increasingly rare in
recent years for a variety of reasons. The high cost of prosecuting such cases
and seeing them through the lengthy appeals process, the availability of long
sentences including life without parole and a growing ambivalence about the
death penalty in some circles are all contributing factors.
(source: The Examiner)
PENNSYLVANIA:
Defense attorney wants case dropped in death of Wolfe sisters
Attorneys for a man accused of killing 2 East Liberty sisters have asked a
judge to halt the prosecution, alleging that the district attorney's office
improperly obtained their client's educational, physical and mental health
records over a judge's orders.
Common Pleas Judge Edward J. Borkowski will convene a hearing on the issue
Tuesday.
Allen Wade, 44, is charged with 2 counts of homicide, robbery, burglary, theft,
receiving stolen property and a firearms count in the deaths of Susan and Sarah
Wolfe, who were found dead in their Chislett Street home on Feb. 7, 2014.
Prosecutors intend to seek the death penalty against Wade if they obtain
convictions on 1st-degree murder.
Late last week, defense attorney Lisa Phillips filed a motion seeking to bar
Wade's prosecution after she alleged that the commonwealth violated an order
issued by Judge Borkowski on Sept. 18.
According to Ms. Phillips' motion, the prosecution in February sought
permission from the court to gain access to a variety of records associated
with Wade, including psychological, psychiatric, school, jail, medical,
military, probation and others.
Throughout the case, at each status conference, the prosecution, including
assistant district attorney William Petulla and deputy district attorney Robert
Schupansky, has asked Judge Borkowski for a ruling on the issue. At each
hearing, Ms. Phillips said, the judge reserved ruling, pending a determination
of the motions' relevance.
Then, on Sept. 18, Judge Borkowski denied the motion, writing, "Defendant has
not indicated an intention to present psychological/psychiatric evidence and/or
testimony," he wrote.
"The commonwealth, absent a court order from this honorable court, circumvented
this court and issued subpoenas for many of the defendant's records," Ms.
Phillips wrote.
Mike Manko, a spokesman for the office, said the issue will be addressed at
next week's hearing.
Among the records the prosecution has received, Ms. Phillips said, are Wade's
junior high and high school records, employment records, family court records
and records from his various incarcerations with the county and state.
They also have obtained Wade's medical records, Ms. Phillips said.
"The defendant's medical records not only contain protected medical information
but also contain protected mental health disclosures, medications and
treatments," she wrote.
They were also obtained without a warrant, Ms. Phillips said, in violation of
Wade's due process rights as well as his right against unreasonable search and
seizure and right against self-incrimination.
The records aren't relevant to Wade's prosecution, Ms. Phillips wrote.
"The commonwealth egregiously abused its discretion in issuing these
subpoenas," she said. "Any information derived from the commonwealth's gaining
improper access to the defendant's medical and/or mental health records and
other records cannot be 'unlearned' by the commonwealth and would taint the
prosecution of the defendant in this capital case."
In addition to asking the judge to halt Wade's prosecution, Ms. Phillips also
asked him to bar the use of the evidence the commonwealth received as well as
bar the pursuit of the death penalty.
"A tainted prosecution of the defendant, if the jury returns a verdict of
guilty, would result in a death sentence which was the product of prejudice and
arbitrariness," Ms. Phillips wrote.
Wade's trial is scheduled to begin with jury selection Nov. 2.
(source: Pittsburgh Post-Gazette)
*****************
Death row 5 win round in court
A lawsuit by 5 Pennsylvania death row inmates questioning the state's execution
method will be allowed to go forward, the Commonwealth Court ruled Thursday in
a suit that charges the Department of Corrections improperly changed the drug
cocktail it intends to use for lethal injections.
The prisoners - who include Lehigh Valley mass murderer Michael Eric Ballard -
are suing the corrections department, maintaining the 3 drugs called for in its
most recent execution protocol conflict with the mixture set by state law.
In allowing the suit to proceed, the 7-member Commonwealth Court panel rejected
a request by the state that it be thrown out at the preliminary stages as
meritless. Lawyers for the corrections department unsuccessfully argued the
inmates lacked standing to pursue the suit and failed to offer valid legal
claims.
The central issue is whether corrections officials can change the drugs used in
executions without action by lawmakers, said David Rudovsky, a Philadelphia
lawyer who brought the suit on behalf of the state's 184 death row inmates.
"This is a pretty direct ruling that there are significant problems with the
department trying to do that," Rudovsky said.
The Department of Corrections rewrote its protocol in recent years amid
difficulties in getting lethal-injection drugs from manufacturers, who have
faced public pressure from opponents of capital punishment. But Pennsylvania
hasn't executed anyone since the 1990s, and in February, Gov. Tom Wolf declared
a moratorium on the death penalty.
Wolf has been granting reprieves to anyone facing the death chamber - including
this month to Ballard, who massacred 4 people in a Northampton home in 2010 -
until a legislative task force studying capital punishment issues a report and
its recommendations are acted on.
The suit charges the prison system improperly replaced a 2-drug cocktail
calling for "ultrashort-acting barbiturate" and "chemical paralytic agents"
with a 3-drug mixture of pentobarbital or thiopental, followed by pancuronium
bromide and potassium chloride.
Neither pentobarbital nor potassium chloride fall under the drugs authorized by
the Legislature, says the suit, which charges the mixture runs afoul with the
law's aim of a humane method of execution.
Corrections spokeswoman Susan McNaughton declined to comment Thursday, saying
the department does not discuss litigation.
In legal filings, the corrections department argued that the "plain language"
of the law shows that nothing prohibits the department from using other drugs
in executions.
The court's ruling, authored by Judge Bernard McGinley, permitted all but one
of the suit's claims to proceed to the discovery portion of a case.
The exception was a challenge to whether the state's execution procedures
violate the ethical standards of the nurses or paramedics who would inject the
drugs. The court found the inmates lacked standing to pursue that claim.
In a concurring opinion, Judge Patricia McCullough urged the state Board of
Nursing to consider whether registered nurses are violating their professional
duties if they participate in executions. She also encouraged legislators to
take up the question of whether the state's drug cocktail is appropriate.
"Unlike this court, the General Assembly has at its disposal objective
fact-finding tools, including the ability to conduct comprehensive
investigations and policy hearings," McCullough wrote. "Given that the death
penalty is still legally permissible in Pennsylvania, there is an overwhelming
public interest in ensuring that it is imposed in strict accordance with the
law."
(source: Morning Call)
VIRGINIA:
Virginia Quietly Grants Death Row Inmates New Privileges
Only a few months ago, the condemned men on Virginia's death row left their
tiny cells just three days a week for showers, and an hour a day five days a
week for recreation in a fenced outdoor cell. A sheet of glass separated them
from family during visits.
Now, the 7 men awaiting execution get an extra half-hour of recreation each
day, and officials are building a new yard with a basketball court and exercise
equipment. They can hang out with up to 3 other death row inmates for an hour
daily, and the state is building a room where they can watch TV, make phone
calls, play games and send emails. They can hug and hold hands with relatives
when they visit.
"Those kinds of things are meaningful when so very little is granted to the
inmates," said Victor Glasberg, an attorney who represents several of the
condemned men challenging Virginia's restrictions, which for years effectively
held the inmates in solitary confinement and were among the most stringent in
the U.S.
Those policies were quietly overhauled recently after months of legal
challenges, the 1st of which was filed by a man convicted of 3 murders who was
executed Oct. 1. Alfredo Prieto first won more privileges when a federal judge
agreed that Virginia can't automatically place death row inmates in solitary
confinement, but an appeals court later overturned that ruling.
The U.S. Supreme Court dismissed Prieto's appeal this week, but another lawsuit
filed by other death row inmates before the overhaul is still moving through
the courts. They argued they were entitled to the same privileges as Prieto and
said their isolation amounted to cruel and unusual punishment.
Michael Bern, Prieto's attorney, declined to comment. A Department of
Corrections spokeswoman said Director Harold Clarke was not available for an
interview and declined to comment because litigation is pending.
The agency has said in the past that federal courts have ruled that long
periods of isolation aren't considered cruel and unusual punishment. But Clarke
said in an August affidavit that he authorized the changes "in an effort to
explore improvements to the overall environment on Virginia's death row."
Virginia Attorney General Mark Herring said in court documents last month that
conditions on death row are now "significantly more progressive," though
Glasberg said he's meeting with officials Friday to discuss further changes.
"When your comparators are horrible, it goes just so far to say that you're at
the top of the heap," Glasberg said.
The changes bring some comfort to Paul Burns, whose older brother William
Joseph Burns has served on Virginia's death row for 15 years. But Paul Burns
still doesn't think he can face visiting his brother, who was sentenced to
death in 2000 for raping and killing his mother-in-law.
"When you've got a family member on death row, it just hurts to go see them.
You know he's living a hell of a life in there," he said.
Conditions among the 31 death penalty states vary widely and are difficult to
track because there are no reporting requirements and the policies can change
frequently, said Richard Dieter, senior program director at the Death Penalty
Information Center, which opposes the death penalty.
Nearly all isolate death row inmates in some way, and most offer more
privileges than Virginia had previously, according to a survey conducted by the
Association of State Correctional Administrators in 2013 and cited by Virginia
officials in court documents.
Most of the states surveyed allow inmates to participate in certain group
activities, like religious services and therapy, but fewer than half let
inmates touch their family members and friends during visits. The new room in
Virginia will be used for religious services, behavioral programming and
employment opportunities for the condemned inmates, Clarke said.
Missouri, which has the least stringent policies, is the only state that houses
its death row inmates with the general prison population, and they're offered
the same programs as other offenders. Meanwhile, in Colorado and other states,
inmates can't participate in group activities, get recreation time with other
inmates or have contact visits, according to the ASCA survey.
Even the families of some victims don't object to the new privileges in
Virginia. Harold McFarland said he believes the man who killed his 32-year-old
son deserves to die. But he supports giving William Morva more freedom within
prison walls.
"While he's still on the Earth, he should be treated as a human," McFarland
said.
(source: Associated Press)
SOUTH CAROLINA:
State wants to prosecute Charleston church shooting 1st
South Carolina wants to go to trial before the federal government in the
Charleston church shootings as it seeks the death penalty for Dylann Roof.
"That is our preference," state prosecutor Scarlett Wilson wrote in a letter
late last week to U.S. District Judge Richard Gergel, who is presiding over the
federal case. "I appreciate any consideration you may give us in this regard."
If the state goes 1st, Roof is scheduled to face trial July on 9 murder counts
and other state charges. The 21-year-old white man is accused of killing 9
black parishioners during a June 17 Bible study inside the city's historic
Emanuel AME Church.
Roof also faces dozens of federal charges. Several - including weapons
violations and obstructing the practice of religion, resulting in death - carry
a possible death sentence, but the federal government has not said whether it
will seek the death penalty.
Gergel has not set a trial date in the federal case, although it would not be
until January at the earliest.
Debra Gammons, a professor at the Charleston School of Law, said it doesn't
necessarily make any difference, but prosecutors prefer to go first.
Wilson "probably wants to go 1st to avoid any hiccup that may occur in the
other trial," she said. "Something may happen in the first trial in the federal
court and that could reduce her chances or reduce evidence that could be
introduced in state court. It's to her advantage to go first."
"In my 20-plus years of prosecution at both the federal and state levels, I do
not recall the Department of Justice actively pursuing a federal case while the
state was in the midst of a prosecution," Wilson wrote. She added that the
state trial judge and state Supreme Court have issued orders protecting the
defense attorneys from appearing in other trials until the Roof case is
resolved.
If the federal government goes 1st, the state case could be delayed until 2017,
said Richard Harpootlian, a Columbia attorney and former prosecutor.
(source: Associated Press)
FLORIDA:
Supreme Court weighs death row law
U.S. Supreme Court justices Tuesday spent an hour questioning attorneys in a
case that could force key changes in the way Florida carries out the death
penalty.
The appeal was brought on behalf of death row inmate Timothy Lee Hurst, who was
convicted in the 1998 murder of a fast-food worker in Escambia County, and
contends that Florida's unique sentencing system is unconstitutional.
In part, Florida's system does not require unanimous jury recommendations
before judges can sentence defendants to death. Also, the case focuses on the
interplay between juries and judges on "aggravating" circumstances, which must
be found before death sentences can be imposed.
2002 ruling cited
Seth Waxman, a former U.S. solicitor general representing Hurst, argued Tuesday
that Florida's sentencing system is unconstitutional under a 2002 U.S. Supreme
Court ruling known as Ring v. Arizona, according to a transcript of the
hearing.
State Solicitor General Allen Winsor disputed that argument, saying "Florida's
capital sentencing system was constitutional before Ring v. Arizona and it
remains constitutional in light of Ring v. Arizona."
It likely will take months for the U.S. Supreme Court to rule, but the case
could have far-reaching effects if justices find the system unconstitutional.
(source: Florida Courier)
LOUISIANA:
Glenn Ford, In The End
I have covered countless wrongful convictions in nearly 2 decades of work as a
legal analyst but I don't think that any case, any cause, ever touched me the
way the Glenn Ford story did. Here was a man, an uneducated black man in the
South, who was railroaded into a murder conviction and death sentence. He then
was left to languish in solitary confinement for decades in one of the most
despicable prisons on Earth, and then upon his belated release denied the
compensation he was owed by the state of Louisiana, by some of the very
officials who allowed his false conviction and sentence to fester for 30 years
in the first place.
Here was a man, a petty thief, whose long-ago trial was a travesty upon
justice, whose lung cancer likely was left untreated, or mistreated, while he
was in confinement, so much so that he lived only a few months as a free man
before succumbing to the disease. In the end, adding insult to injury,
Louisiana officials decided just to wait him out, and watch him die, without
having to pay him restitution for all those decades locked alone in a cell.
Why? Because they say he could not prove that he did not commit a petty crime
the state never charged him with 30 years ago. Now that Glenn Ford is gone his
family is left to pursue those claims; if there is any justice in the world
they will prevail.
But the Ford case reminds us of how little justice exists in Louisiana, then,
and now. On Sunday night, my colleagues at 60 Minutes broadcast a wrenching
segment on the Ford story. You should take 15 minutes out of your day to watch
it. Correspondent Bill Whitaker interviewed Ford just weeks before he died,
penniless, of the cancer that ravaged him. Whitaker also talked to the former
prosecutor, Marty Stroud, who put Ford on death row and later came to regret
it, and talked, too, to Dale Cox, the current prosecutor of Caddo Parish, the
man who helped get Ford free then fought to deny him the money he is owed.
Each interview, alone, would have created an important historical record of the
fallibility of justice in capital cases. Woven together, however, they do
something more; they help explain how these cases happen over and over again.
Stroud today mourns the decisions he made 30 years ago, as a young prosecutor,
when he ensured that Ford's jury would be all white and then snickered when
Ford's capital trial team consisted of a probate lawyer and a junior attorney,
neither of whom had ever tried a capital case.
Cox, meanwhile, is the embodiment of every prosecutor in the country who places
one manner of justice at the expense of another and those many prosecutors who
feel otherwise surely cringed watching him on tape. The justice system worked,
he told Whitaker with a straight face, because Ford was not executed before he
was exonerated. Cox says he doesn't understand why Stroud is apologizing to
anyone for anything since Stroud did what he was supposed to do in prosecuting
and convicting Ford all those years ago. And then Cox went further and said
this:
The question is, was there anything illegally done, improperly done that led to
this. And-- and I can comfortably say, based on the review of the record, no,
there was not.
But that is simply not true. Under the Supreme Court's mandate of Gideon v.
Wainwright, Ford was entitled to competent counsel during his trial and on
appeal. He did not receive that. Under Supreme Court precedent later reaffirmed
in Batson v. Kentucky, Ford also was entitled to a jury selected without racial
bias or prejudice. This, too, he did not receive. Under the Supreme Court's
mandate of Brady v. Maryland he was entitled to know what the police and
prosecutors knew about the informant whose testimony incriminated him. This he
did not receive.
Over and over again the "improper" application of well-settled legal principles
tainted the Ford case. And over and over again the appellate courts of
Louisiana, and the federal courts with jurisdiction over the case, subsequently
excused and justified those errors. Ford never should have been convicted. And
then his conviction should swiftly have been overturned. And Cox's refusal,
even now, to admit this, to admit the "illegal" and "improper" application of
the law in the Ford case, illustrates a pervasive problem within our criminal
justice systems: once a man is convicted too many prosecutors and judges care
more about defending that conviction no matter how flawed it may be than they
do about ensuring that a fair and accurate result has been reached.
Sure, in the end, when he could no longer ignore the evidence before him, Cox
helped exonerate Ford. I suppose that makes him better in some respects than
other prosecutors in other jurisdictions who never try to right a wrong like
this. But the genius of Whitaker's interview with the outgoing prosecutor (Cox
declared a few months ago that he is not running for reelection and a new
election will be held later this month) is that it shows the rationale that
animated Cox's decision. What happened to Ford is not immoral, Cox told
Whitaker. Not immoral, that is, according to Cox's view of morality. Our
justice systems are run according to the moral beliefs of elected officials
like Cox.
Which brings me, at last, to Ford. I only spoke with him after he was released
from prison. I never saw him in the months before he died. But the 60 Minutes
cameras did. His emaciated face on our television screens Sunday night, a man
at the end of a life wasted by our justice system, was a victory of sorts. At
least his story of injustice saw the light of day. At least his exoneration led
his prosecutor, Stroud, to publicly confess what a great many lapsed
prosecutors surely must feel in their hearts when they contribute to an unjust
result. At least now the nation understands better the mindset of a prosecutor
like Cox, who wants you to think he goes to bed at night with a clean
conscience, "reasonably" sure that he has not condemned an innocent man to
death.
There are a lot of clean consciences among prosecutors and judges and police
officers and defense attorneys in Louisiana, I bet. And there also are a lot
more men like Ford wasting away in a cell, wrongfully convicted, bereft of
hope, praying their story will get into the hands of the right lawyer, or
judge, or journalist. If you remember Glenn Ford at all in the coming years
remember him for finally breaking free from his unjust confinement, from his
relentless pain, and from a justice system that dogged him until the day he
died.
(source: Andrew Cohen, Brennan Center for Justice)
*****************
100 religious leaders object to Dale Cox's use of Bible to argue death penalty
More than 100 religious leaders have signed an amicus -- or friend of the court
-- brief objecting to what they say is Caddo District District Attorney Dale
Cox's "misinterpretation and misuse" of the Bible to successfully argue the
death penalty for Rodricus Crawford.
Crawford, of Shreveport, was convicted of killing his 1-year-old son. He was
sentenced to death in 2013.
The ministers, bishops, rabbis, priests, other ordained clergy and religious
leaders signed the brief to bring to the court's attention to 2 instances they
say Cox wrongfully used the Bible as the state's justification to execute
Crawford.
The 1st arose during Cox's cross-examination of the Rev. John Dent Sr.during
the penalty phase of the trial. The defense had called Dent to the stand to
speak as a character witness, the brief which will be filed with the Louisiana
Supreme Court Monday, says.
Under cross examination, Cox asked the pastor if he agreed that scripture
attributed to Jesus Christ means "an earthly life should be terminated for
harming a child." Dent did not agree with Cox's interpretation, the brief says.
In a 2nd instance, Cox quoted the scripture again at the end of the penalty
phase of the trial when the jury had been asked to decided between life in
prison or death.
"He [Jesus Christ] said, to the adult, who would harm 1 of these, "1 of these"
referring to small children, 'Woe be unto you, who would harm on of these,'"
the brief quotes Cox as saying. "Now, this is the Jesus Christ of the New
Testament. 'It would be better if though you were never born. You shall have a
millstone cast around your neck and you will be thrown into the sea."
The brief says what occurred in court was wrong for religious and legal
reasons. It also says the attorney twisted the meaning of the scripture.
A news conference will be held on the steps of the Louisiana Supreme Court in
New Orleans at 10 a.m. Oct. 16.
(source: Shreveport Times)
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