Oct. 15
TEXAS:
Lawyer considers morality of death penalty
2 1/2 hours after her lecture concluded, one of Meg Penrose’s clients was
executed for killing a police officer.
“Today is a somber day. It’s a difficult thing to talk about,” she said.
“Tonight, as my client is executed, there are many people who will feel
vindicated.”
Penrose, a professor of law at Texas A&M University and death penalty expert,
spoke Wednesday evening at Eck Hall of Law about the moral debate surrounding
death row, in a lecture titled “The Death Penalty, Dignity and Doing Justice.”
Meg Penrose, a professor at Texas A&M and Notre Dame law graduate, reflects on
her experiences as a lawyer for people on death row at a lecture in Eck Hall of
Law on Wednesday evening.Chris Collins | The Observer
Meg Penrose, a professor at Texas A&M and Notre Dame law graduate, reflects on
her experiences as a lawyer for people on death row at a lecture in Eck Hall of
Law on Wednesday evening.
“He’s been on suicide watch for about a month in his cell, and they keep him on
camera watch, and they will take him to the place, and I presume he’ll have his
last meal and perhaps he’ll have discussions with people close to him, perhaps
a spiritual advisor,” Penrose said. “Members of the victim’s family will be
driving down, and they’ll witness what they believe to be justice. But law and
justice are not certainly the same thing.”
Penrose, a Notre Dame Law School graduate, said her client’s — 33-year-old
Licho Escamilla — case moved through a number of courts before eventually being
tried in the U.S. Supreme Court.
“I was literally the last attorney this client was permitted to have,” she
said. “My boss called me up and said, ‘Meg, I need you to take this client.
He’s fired everyone else before this.’ I said that’s a pretty bad way to start,
but I was his last option. He tried to fire me, but I was all he had.”
As Penrose’s client’s case moved through the various courts, she said the
juries scrupulously looked at the evidence and the previous jury’s decision.
“We live in a society defined by laws, and the jury gave a sentence that was
looked at several times,” Penrose said. “They actually sought the record, they
wanted to actually look at the case.”
Penrose said this particular case caused her to continue discussing her ongoing
personal conflict regarding the death penalty.
“I’m at a point in my career where I’m conflicted,” she said. “I don’t
understand it from my religious background — I agree with the Pope. I don’t
understand it from my moral perspective. But we need to find a just penalty
that preserves the human dignity of the person.”
Penrose said her mother played a role in her decision to represent people who
had committed heinous enough crimes to warrant the death penalty.
“I got this from my mother. She didn’t agree with the death penalty,” Penrose
said. “She got it from Matthew, the verse ending with ‘for what you do for the
least of my brothers, you did for me.’”
Penrose said her Notre Dame education shaped her to be a better person.
“I’ve learned about service, about serving those who are least deserving of
justice, those who are least deserving of my time, my effort, the least
deserving and yet, we help them,” she said. “The work is not popular. I would
say it’s thankless. Every individual in the United States deserves
representation. That’s not necessarily why I took that case. I’m not here to
justify the crime, but the crime and the penalty are separate issues.”
Penrose also said there are unique opportunities and responsibilities for
lawyers, particularly lawyers graduating from Notre Dame.
“You’ll learn about other cultures and other people and that will shape who you
are, and it will make you a better person,” she said. “You are a part of the
Notre Dame family. You are a different kind of lawyer. You are a Notre Dame
lawyer. Do something to help someone. Do justice.”
(source: ndsmcobserver.com)
NORTH CAROLINA:
Racial Justice Act ruling: 18 months later, still no decision in N.C.
It's been 18 months since the N.C. Supreme Court heard arguments in the state's
controversial Racial Justice Act cases and the court still hasn't issued issued
a decision.
Most cases don't take that long, said former Associate Justice Ed Brady of
Fayetteville. He strove to get court opinions finished in three to six months,
he said.
The other four cases that the state Supreme Court heard in April 2014 were all
decided before the end of that year. The Racial Justice Act rulings may be put
off until next year because the U.S. Supreme Court is considering a similar
matter, a death penalty lawyer said.
In the meantime, the four defendants in the Racial Justice Act cases - each
convicted in some of the Fayetteville area's highest-profile murders - and the
families of their victims are waiting to hear whether the defendants will be
sent back to death row. The defendants used the act in 2011 and 2012 to
persuade a judge to commute their death sentences to life in prison without
parole.
Also, unrelated to the Racial Justice Act, the court system is still reviewing
the legality and constitutionality of the state's death penalty practices.
Executions in this state have been in hiatus since January 2007 because of that
litigation.
Nov. 6 is the next scheduled day for the N.C. Supreme Court to issue rulings,
but there is no telling when it will decide the Racial Justice Act cases.
North Carolina's justices may be waiting because the U.S. Supreme Court has
before it a similar case from Georgia, said lawyer Ken Rose of the Center for
Death Penalty Litigation. Brady said it would be prudent for the North Carolina
court to wait in light of the Georgia case.
The Georgia case, Foster vs. Chatman, and the North Carolina cases focus on
whether prosecutors illegally used juror strikes to specifically prevent blacks
from serving on the juries, possibly on the assumption that a black juror would
be less likely to convict or less likely to impose a death sentence.
It's illegal for a lawyer to consider a person's race during jury selection.
The outcome of the Georgia case could affect the North Carolina cases, Rose
said.
The four Racial Justice Act defendants are Marcus Reymond Robinson, who killed
a teen in a robbery; Tilmon Golphin, who killed a state trooper and deputy;
Christina S. "Queen" Walters, who led a gang that killed two women; and Quintel
Augustine, who killed a police officer.
The Racial Justice Act was enacted in 2009 to rectify incidents of
institutional racism in the criminal justice system. Most of the state's death
row inmates, regardless of their race, sought to get their death sentences
commuted.
The legislature repealed the act in 2013.
Former Associate Justices Brady and Patricia Timmons-Goodson, who also is from
Fayetteville, could not speak specifically about the Racial Justice Act cases
but discussed in general why some cases may take a while.
The court's overall caseload can be a factor, Timmons-Goodson said, and some
cases are more complex, requiring more time.
Former Associate Justice Bob Orr of Asheville said the last opinion he wrote, a
ruling in a major lawsuit over state funding of public schools, had six boxes
of files.
"If the law clerks are having to go through all the records, that does eat up a
boatload of time," Orr said.
Efforts to get the justices to agree on the majority opinion (instead of having
several issue separate concurring opinions) may also add to the time it takes
to issue a ruling, Brady said
(source: Fayetteville Observer)
FLORIDA:
Florida Judges Can Kill You
The state’s perverse death sentencing system is surely unconstitutional—right?
That conclusion appeared all but unavoidable after oral arguments on Tuesday in
Hurst v. Florida, a capital sentencing case whose complex problems all point
toward a simple solution. For a surprisingly entertaining hour, the justices
returned to the death penalty after a brief reprieve. Only this time, instead
of a bickering brawl, the justices engaged in a thoughtful debate that might
actually bring sorely needed justice to some death row inmates.
Hurst is a simple case about who gets to decide whether a defendant will live
or die. Under current Supreme Court jurisprudence, a capital defendant may
present to the jury “mitigating circumstances”—factors, such as childhood
trauma, which diminish his culpability. Prosecutors, however, may present to
the jury “aggravating circumstances”—factors, such as extreme depravity or
premeditation, which increase the defendant’s culpability. Typically, the jury
decides whether these aggravators were proved beyond a reasonable doubt, and
whether they outweigh mitigators. If so, the jury sentences the defendant to
death. If not, the jury spares his life.
Florida follows this constitutionally mandated system—with two perverse twists.
First, while a jury of 12 does assess aggravators and mitigators, it doesn’t
have to decide unanimously whether aggravators outweigh mitigators. In fact, it
doesn’t have to decide anything unanimously during sentencing. So long as just
seven jurors believe an aggravator justifies the death penalty, the jury must
recommend that the defendant be executed. Even if each of the 7 jurors cites a
different aggravator, the jury as a whole must endorse execution. And the
defendant is barred by state law from asking the jury to explain which
aggravators justified capital punishment.
Since Scalia tends to err on the side of willy-nilly executions, he doesn’t
like the system.
The 2nd twist is similarly bizarre. Although the jury recommends a sentence to
the judge, she is under no obligation to follow it: The jury’s decision is, by
law, “advisory.” That means judges can actually override a jury’s
recommendation of life in prison and condemn a defendant to death instead. And
yes, Florida judges have done exactly that. It also means that the judge can
impose death based on aggravators that the jury found irrelevant or unproven.
And if the jury can’t reach a decision? Under Florida law, that’s no problem:
The judge can simply impose death on her own. (The only other state to give
judges so much power over life and death is Alabama, where judges routinely
override jury recommendations for life in prison and impose capital punishment
instead.)
Florida’s sentencing scheme presents a serious constitutional conundrum. The
Sixth Amendment’s guarantee of a jury trial requires that, in death penalty
cases, all aggravators be proved to a jury beyond a reasonable doubt. But in
Florida, a judge can rely on aggravators that were not proved to a jury. She
can even rely on aggravators a jury never considered. Moreover, several
justices have found that the Eighth Amendment’s bar against “cruel and unusual
punishments” requires a jury, not a judge, to impose the death penalty. Juries,
these justices believe, reflect the community’s “moral sensibility” and
“considered judgment,” which the Constitution requires in any death sentence. A
jury’s decision represents the wishes of at least a fraction of the defendant’s
peers. A judge’s decision might represent nothing more than her empty stomach.
At the top of the hour, all eyes are on the unusually engaged Scalia, a wild
card in jury trial cases. Scalia may not care about sparing death row
inmates—this is, after all, the man who thinks executing the innocent is
perfectly constitutional—but he’s obsessed with the right to a jury trial. In
2002, he even agreed (hesitantly) that capital defendants have a constitutional
right to put aggravators before the jury.
But that was a long time ago, years before Scalia became the Fox News justice.
As soon as Scalia opens his mouth on Tuesday, it seems his vote is going to
Florida.
“This necessity of finding an aggravating factor, we made it up, right?” Scalia
asks Seth Waxman, the former solicitor general who is arguing against the
Florida law. You can almost see Waxman bid adieu to Scalia’s vote. Soon after,
Scalia continues: Florida’s laws “require unanimity for a conviction, right?
They just don’t require unanimity on the sentence.”
Scalia’s point here is that the whole system of aggravators and mitigators was
largely imposed on states by the Supreme Court to keep them from executing
inmates willy-nilly. Since Scalia tends to err on the side of willy-nilly
executions, he doesn’t like the system, and isn’t eager to strike down
Florida’s workaround.
Justice Elena Kagan jumps in to help Waxman, unspooling a Breyer-esque
hypothetical designed to demonstrate why a merely advisory jury verdict would
violate the Sixth Amendment. Justice Samuel Alito—who spends much of the
morning leaning way back in his chair, eyes closed, lips pursed—abruptly sits
forward and strikes.
What if, Alito asks, the jury is told that “if you decide on death, the judge
is going to review it, and the judge has the power to sentence to life”
instead?
This is an obvious question with an obvious answer—a disappointing performance
for the typically trenchant Alito.
“Our view,” Waxman responds smoothly, is that under the Eighth Amendment,
“capital sentencing has been, and as a matter of constitutional law should be,
done by a jury.” A judge can choose to spare a defendant’s life in
contravention to a jury’s verdict—and indeed, in some states, they do (albeit
rarely). But the Eighth Amendment prevents a judge from sentencing a defendant
to death when the jury votes for life. Alito’s point effectively defanged,
Waxman returns to his seat triumphant.
Allen Winsor, the Florida solicitor general who has the unenviable task of
defending his state’s indefensible law, doesn’t fare quite so well. Justice
Stephen Breyer, the court’s leading death penalty skeptic, pummels Winsor with
questions meant to show that a judge can impose death when a jury wants life
under Florida’s law. Winsor evades the question for a few painful minutes
before Breyer demands a real answer.
“My simple question is,” the justice declares, “as a matter of Florida law, can
the judge impose the death sentence? Yes or no.”
“As a matter of Florida statutory law, yes,” Winsor responds—but as a matter of
constitutional law, “no.” There is a moment of silence as everybody realizes
that Winsor just gave away his case, openly admitting that Florida’s capital
sentencing laws are incompatible with the Constitution. Breyer relents, but
spends the rest of the morning looking frustrated, gazing at the audience like
a captain looking out over a foggy sea.
Justice Anthony Kennedy, the probable swing vote here and possibly for all
eternity, remains conspicuously silent throughout the morning, appearing
listless and bored. So everyone’s head snaps up when he asks his first
question.
“You’re saying that it is possible,” Kennedy proceeds cautiously “that under
Florida law, the jury would not find the existence of an aggravating factor,”
but “the judge could then proceed to find an aggravating factor and impose the
death penalty?”
Winsor tries to stammer out a response, but Kennedy continues.
“Now, you say this hasn’t happened. He’d probably be reversed. But
theoretically this could happen?”
Predictably, Winsor dodges Kennedy’s question, swerving toward some amusing
banter with Kagan. But Kennedy brings it up again, sternly advising Winsor that
“a death case is not funny.” Winsor’s stammering response makes no sense, and
Kennedy’s face veers from stultified to pissed off. You don’t sidestep a
question from the most powerful man in America.
Arguments close with a rousing, largely uninterrupted rebuttal by Waxman, then
the justices file slowly off the bench. As they amble toward the robing room,
the resonant sound of Justice Clarence Thomas’ laughter echoes into the
courtroom. He’s chatting with Breyer, and the 2 are all smiles and camaraderie.
One of them will likely lose this case, but at that moment, it didn’t seem to
matter. Meanwhile, 394 people sit on Florida’s death row, many of whom may have
been sentenced unconstitutionally. For them, the outcome of Hurst could be the
difference between life and death. But the specter of the execution chamber is
far away from the court as the justices head to lunch. Thomas’ laughter fades,
and we all exit the courtroom into the sunny fall afternoon, putting images of
gurneys and needles out of our minds as we stroll down the blindingly white
marble steps.
(source: slate.com)
ALABAMA:
Judge gives woman until Friday to decide whether she will testify in Wylam
twins slaying
A judge has ordered Crystal Nelson to decide by Friday whether to accept a plea
deal with prosecutors in which she would agree to testify against one of her
co-defendants in the 2013 shooting deaths of 17-year-old twin brothers Jeremi
and Jonathan Berry.
The Berrys' mother also was wounded in the shooting.
ALA., Jefferson County Circuit Judge Tracie Todd said during a Thursday hearing
for one of Nelson's co-defendants, Stanley Chatman, that Chatman's defense
attorneys are to be notified by or on Friday as to whether Nelson will agree to
testify at his trial.
"She (Nelson) should know at this point whether she is going to cooperate or
not," the judge said.
Nelson, 23, of Birmingham, is charged with murder in the case.
Chatman, 28, of Birmingham, and Terrell Corey McMullin, 22, of Fairfield, are
charged with multiple counts of capital murder and the two men would face the
possibility of the death penalty if convicted.
Deputy Jefferson County District Attorneys Neal Zarzour and Misty Reynolds
declined comment regarding a possible deal with Nelson to testify at Chatman's
trial.
Chatman is represented by attorneys Emory Anthony and Chris Burrell.
Nelson's attorney, Lynniece Washington, had not responded to a request for
comment prior to publication of this story.
Todd had held Wednesday's hearing in Chatman's case to consider a several
motions by the defense and prosecution. Chatman's case has been set for trial
April 4.
McMullin, whose trial is set for Jan. 25, also was to have had a hearing on
Wednesday but it was continued after one of his attorneys didn't show up
because he was in another case in Shelby County. Todd appointed another lawyer
replace the attorney.
Nelson, Chatman and two other men, Quentin Nixon and Dayjuan Tuggle, were
charged soon after the June 28, 2013 slayings of the Berry twins and the
attempted murder of their mother, LaTasha Berry, in Wylam.
Since then there have been several twists in the case:
- Charges were dropped against Nixon and Tuggle in March 2014 after
Nelson wrote a letter saying the two men were not in the car that day.
- McMullin was arrested and charged in April 2014.
- Police in June 2015 shot another man who also had been identified as
a suspect in the case. Charges, however, have not been filed against him
related to the Berry twins' deaths.
Chatman is currently serving a 99-year sentence for his conviction on a murder
charge in the March 1, 2013 shooting death of Derrick Dewayne King.
Chatman was out on bond after King was killed when he was charged in the Berry
twins' slaying. Chatman also had been released in November 2012 from prison
after serving a sentence for his manslaughter conviction in the 2005 shooting
death of another teen.
(source: al.com)
USA:
'Shrimp Boy' could face rare federal death penalty case
The U.S. Justice Department may soon review whether to pursue a rare federal
death penalty prosecution against Raymond "Shrimp Boy" Chow, a reputed Asian
organized crime figure preparing to go to trial on racketeering charges.
In court papers filed Wednesday, the San Francisco U.S. attorney's office asked
U.S. District Judge Charles Breyer to delay Chow's scheduled Nov. 3 trial date
because of the possibility that new murder charges -- expected to be added to
the case as soon as Thursday -- could trigger the Justice Department's death
penalty review process.
Chow's lawyers could not immediately be reached. Breyer gave Chow's lawyers
until Thursday morning to respond to the government's request for a delay;
Chow, who is in jail, has refused other trial delay proposals.
Chow, who has a long criminal history, faces sweeping racketeering charges for
his alleged role as head of a San Francisco crime syndicate in a case that
spawned the political corruption indictment of former state Sen. Leland Yee.
Yee and many other defendants have pleaded guilty to racketeering, but Chow
insists he is innocent and is fighting the charges.
But federal prosecutors on Wednesday suggested the stakes may be higher for
Chow because of the addition of new allegations he arranged the murders of two
other Asian gang figures in 2006 and 2013.
"The government has been in consultation with the Department of Justice and,
due to the criminal history of defendant Chow, (the U.S. attorney's office) is
not authorized to bring the ... murder charge as a non-death eligible offense
without the review and decision of the Attorney General," federal prosecutors
told the judge.
That automatic death penalty review process can take months. The Justice
Department has pursued only a handful of federal death penalty cases during the
Obama administration, including the recent case of Boston Marathon bomber
Dzokhar Tsarnaev.
Bay Area federal prosecutors have unsuccessfully pursued several death penalty
prosecutions the past few decades, including charges against leading San
Francisco Western Addition gang members five years ago.
(source: San Jose Mercury News)
**************************
The Death Penalty and Human Rights: An interesting dynamic
When most people think of the phrase “human rights” it often brings to mind
campaigns to protect minority groups or prevent civilian casualties of war.
This seems natural, as these are undeniably important and pressing issues and
are quite often covered in the media.
But what about something like the death penalty?
A Pew Research poll conducted this year shows that while support for the death
penalty has gone down among Americans, the number still remains at a majority
of 56%, with only 38% percent in opposition.(1)
Among Canadians this number is also strikingly high. In 2013 an Angus Reid poll
found that 61% of Canadians said that the death penalty, abolished in 1976, was
warranted for murder.(2)
From where I stand, this is strange. Aside from the fact that one of the most
often cited (and arguably heartless) justifications of the death penalty, it’s
cost effectiveness, is no longer a given in countries like the United States,
there is also the question of human rights.(3)
The Universal Declaration of Human Rights proclaims the right of every
individual to not be deprived of life and states that no one is to be subjected
to cruel or degrading punishment. Numerous UN conventions and statements have
followed up this declaration clarifying this position. More recently in 2005,
the UN Commission for Human Rights approved a resolution calling on all states
to abolish the death penalty completely.(4)
Additionally, bodies like the Canadian Supreme Court have rebuked the death
penalty in cases such as United States v. Burns. Here the Supreme Court claimed
that the finality of punishment would aggravate gross injustices committed
against those wrongfully convicted, of which there have been many.(5)
These points bring up the question: where do we draw the line between populist
sentiment and the supposed “inalienability” of human rights? If these polls are
to be believed, a majority of Canadians and Americans alike would be willing to
deprive those convicted of murder of what the UN has declared is to be
considered an inalienable right.
So, is it that our societies have suddenly gone so morally bankrupt that we
advocate human rights abuse? Or is there an indication here that the framers of
the UDHR may have been out of touch with what average people in North America
truly consider to be a human right? Or is this just a case of norm creation
from the top down rather than the bottom up?
Maybe there are deeper justifications that people consider to be trumping what
“others”, like the UN High Commissioner for Human Rights, consider to be human
rights, but these are interesting questions to go along with our theme on this
blog.
Check out this link to information from Amnesty International for some basic
info on the death penalty, a map of where it is practiced and why it is opposed
on human rights grounds: https://www.amnesty.org/en/what-we-do/death-penalty/
Cited
(1)http://www.people-press.org/2015/04/16/less-support-for-death-penalty-especially-among-democrats/
(2)http://www.thestar.com/news/canada/2012/02/08/majority_of_canadians_support_return_of_death_penalty_poll_finds.html
(3)http://www.forbes.com/sites/kellyphillipserb/2014/05/01/considering-the-death-penalty-your-tax-dollars-at-work/
(4)http://www.amnestyusa.org/our-work/issues/death-penalty/international-death-penalty/death-penalty-and-human-rights-standards
(5)https://www.law.kuleuven.be/iir/nl/activiteiten/documentatie/OldActivities/DeathPenalty/Burns.pdf
(source: McGill International Report)
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