December 9, 2011
The New York Times
By WILLIAM GLABERSON
One of Connecticut’s most agonizing courtroom dramas came to
an end on Friday as a jury voted to impose the death penalty on the second of
two killers of three family members after an ordeal of violence and sexual
assault that challenged suburban ideals of safety.
Lawyers for the second convicted killer, Joshua Komisarjevsky, 31, had waged an
aggressive fight to avoid a capital sentence since Oct. 13, when he was
convicted of the crimes, which drew national attention in 2007. But the jury in
New Haven unanimously voted for capital punishment on each of the six capital
counts he faced.
Mr. Komisarjevsky’s trial in Superior Court followed the trial of his
co-defendant, Steven J. Hayes, who was sentenced to death last year. The two men
burst into the home of the Petits in Cheshire, Conn., beat and tied up the
father, Dr. William A. Petit Jr., and wreaked havoc for hours before setting the
house on fire with the family’s two girls tied to their beds.
The crime and the long court proceedings, attended by Dr. Petit, the lone
survivor, brought legal reforms, played a central role in the failure of an
effort to repeal the death penalty and seemed to rivet the state until, in
recent months, a kind of mass fatigue with the depressing details of the crime
and its punishment appeared to set in.
“I believe God’s will has been done,” Dr. Petit said to a crowd outside the
courthouse just after the verdict. But, he added, “The pain is there forever.”
One juror, Timothy Anderson, said jurors were sobbing on Friday as they reached
the verdict. Mr. Anderson said he was the last to decide to vote for death, “but
when you look at the whole thing, it’s so horrific.”
The defense lawyers presented a series of misfortunes that they said Mr.
Komisarjevsky had suffered in his life as they worked to change perceptions of
him that had been forged by revulsion at the killing of Jennifer Hawke-Petit,
and her daughters, Hayley, 17, and Michaela, 11.
Mr. Hayes was convicted of raping and strangling Ms. Hawke-Petit and killing the
daughters, who died of smoke inhalation. At his separate trial, Mr.
Komisarjevsky was convicted of the killings and a host of other crimes,
including sexually assaulting the 11-year-old and making prurient photographs of
her on his cellphone.
In weeks of testimony, the defense lawyers worked to cast Mr. Komisarjevsky as a
damaged person worthy of life, though one that would certainly be lived behind
prison bars.
The lawyers said that Mr. Komisarjevsky was sexually abused as a child, suffered
mood disorders and head injuries, abused drugs and cut himself with glass,
knives and razors, and that his evangelical Christian adoptive parents denied
him proper care, relying instead on religion.
On Friday night, Mr. Komisarjevsky’s family issued a statement: “From the very
beginning, we have spoken out about the horror of the crime and taken the
position that whatever verdict the jury reached was the right verdict. With
today’s jury decision, our view is the same. The crime was monstrous and beyond
comprehension. There are no excuses.”
The killings dominated the state’s front pages and airwaves for so long that
some in Connecticut said they had grown weary of Mr. Komisarjevsky’s trial..
Colin McEnroe, one of the state’s best-known columnists and commentators, wrote
during the trial that he avoided articles about it because he felt he already
knew what he needed to know about the case.
“It is not possible to have lived in this state since 2007 and not know the
Petit case,” Mr. McEnroe said. “It enters our night dreams and day musings.
There is no vaccine against it.”
December 7, 2011
The New York Times
By TIMOTHY WILLIAMS
Prosecutors in Philadelphia announced Wednesday that they had
halted the state’s effort to execute Mumia Abu-Jamal, the death row inmate
convicted of killing a police officer 30 years ago, whose subsequent legal case
based on claims of innocence has received international attention.
Mr. Abu-Jamal will spend the rest of his life in prison without the possibility
of parole, said Seth Williams, the district attorney for Philadelphia.
“This has been a very, very difficult decision,” Mr. Williams said at a news
conference, adding that he believed Mr. Abu-Jamal was guilty of the murder and
should be executed. “The sentence was appropriate. That would have been the just
sentence for this defendant.”
In April, a federal appeals court ordered a new sentencing hearing for Mr.
Abu-Jamal because jurors had received potentially misleading instructions during
his 1982 trial. In October, the United States Supreme Court declined to hear the
case.
Mr. Williams said Wednesday that the appeals court ruling — and others that have
spared Mr. Abu-Jamal’s life over the years — had led him to drop his pursuit of
the death penalty, in part because witnesses are no longer available. He said he
made the decision after discussing it with Maureen Faulkner, the widow of Daniel
Faulkner, the slain police officer.
During his long stay on death row, Mr. Abu-Jamal, 57, a former Black Panther and
radio reporter, became a vocal and — to some — convincing advocate of his own
“Free Mumia” movement. That cause became particularly prominent around college
campuses, where students collected donations for his legal defense fund and sold
buttons and posters carrying images of his pensive face and long dreadlocks
beneath that slogan. The Beastie Boys and Rage Against the Machine performed at
a benefit concert on his behalf in 1999, and a suburb of Paris named a street
after him in 2006.
The case has been played out repeatedly in court and the news media, and found a
place in popular culture that has extended into the Internet age on blogs and
Facebook pages. The trial was said to be either a miscarriage of justice based
on racism, or a cut-and-dried murder of a law enforcement officer in which the
issue of race prevented justice from being carried out. Mr. Abu-Jamal survived
at least two execution dates — in August 1995 and December 1999.
On Wednesday, Ms. Faulkner, who appeared at the news conference with Mr.
Williams and other city officials, said she had agreed to give up her advocacy
for Mr. Abu-Jamal’s execution because the case had dragged on for too long.
At times, she employed stinging language to express her vexation at Mr.
Abu-Jamal’s ability to avoid execution, calling the judges who overturned Mr.
Abu-Jamal’s death sentence “dishonest cowards.”
“Rest assured I will now fight with every ounce of energy I have to see that
Mumia Abu-Jamal receives absolutely no special treatment when he is removed from
death row,” she said. “I will not stand by and see him coddled as he had been in
the past. And I am heartened by the thought that he will finally be taken from
the protected cloister he has been living in all these years and begin living
among his own kind — the thugs and common criminals that infest our prisons.”
But Christina Swarns, director of the criminal justice practice at the NAACP
Legal Defense Fund, which is representing Mr. Abu-Jamal, said that she was
“delighted” by the decision — and that the Free Mumia movement had some
influence.
“We’re at a time in this country when support of the death penalty is at an
all-time low, and that reflects some of the concerns expressed by Mumia’s
supporters in terms of the fairness of the process,” she said.
Mr. Abu-Jamal, who is black, was convicted of fatally shooting Officer Faulkner,
who was white, on Dec. 9, 1981, after the officer pulled over Mr. Abu-Jamal’s
brother for driving the wrong way on a one-way street. A jury found that Mr.
Abu-Jamal had shot Officer Faulkner in the back and then, as the officer lay
bleeding, shot him four more times. Mr. Abu-Jamal had been shot in the chest by
the officer.
Mr. Abu-Jamal has said that he was at the scene but that someone else — whom he
has not identified — was the killer.
November 11, 2011
The New York Times
By THE ASSOCIATED PRESS
NEW YORK (AP) — A convicted serial killer sentenced to death
in five grisly stranglings in California is fighting to avoid being brought to
New York to face new charges in two 1970s murders here, saying he needs to work
on his appeal more than New York authorities need to prosecute him.
Rodney Alcala says he needs to stay on California's Death Row to work on his
appeal — especially because he represented himself in a sometimes surreal
southern California trial last year.
Extraditing Alcala to New York "pits his right to a meaningful capital appeal
against a non-death penalty case in another state that is more than 30 years
old," public defenders wrote on his behalf in court papers filed last month in
California's Marin County. Authorities haven't yet responded, and a judge's
decision is months away.
Alcala's move marks the latest turn in authorities' decades-long legal joust
with the former amateur photographer and TV dating-show contestant, who's said
to have an IQ that tops 160.
Initially arrested in California in 1979, he was found guilty twice in one of
the California killings and had both verdicts overturned before his latest
conviction last year. It came after a trial where prosecutors depicted him as a
killer with a habit of sexually abusing and torturing his victims, and Alcala
offered a diffuse defense that included questioning one victim's mother, playing
Arlo Guthrie's 1967 song "Alice's Restaurant" and showing a TV clip of himself
on a 1978 episode of "The Dating Game."
Meanwhile, Alcala had been suspected in one of the New York cases for more than
30 years before Manhattan prosecutors announced in January that they had finally
gotten an indictment in the two cases here — the 1971 strangling of a flight
attendant and the death of a Hollywood nightclub owner's daughter whose remains
were found in 1978 after she disappeared the year before.
While Manhattan District Attorney Cyrus R. Vance Jr. faced questions about
expense and point of prosecuting an out-of-state prisoner already sentenced to
die, he said the New York women's cases deserved to be pursued and he was
determined to bring Alcala to New York.
"The ends of justice require the arrest and return of Alcala to this state,"
Vance wrote in an extradition request in May. New York Gov. Andrew Cuomo and
California Gov. Jerry Brown signed off on the move in August.
But Alcala and lawyers working with him say he needs to stay in California to
prepare for his appeal by reviewing the trial transcript for accuracy and
participating in any related hearings — defense work only he can do because he
chose not to have a lawyer for the trial, he and his advocates say. They note
that his life may ultimately be at stake.
"His ability to defend against . . . impending execution should be given
precedence over New York's wish to prosecute" him on charges carrying a maximum
of life in prison, Michael G. Millman, who runs the nonprofit California
Appellate Project, wrote to accompany Alcala's Oct. 24 filing in Superior Court
in Marin County, where he's being held in San Quentin State Prison.
The Marin County Public Defender's office, which filed Alcala's bid to halt the
extradition, didn't immediately return a call Thursday. State Attorney General
Kamala Harris's office has several weeks to respond. The Manhattan DA's office
declined to comment.
Alcala, now 68, was convicted of strangling four women and a 12-year-old girl in
California. He raped one victim with a claw-toothed hammer and posed several
victims nude in sexual positions after their deaths, prosecutors said.
After last year's conviction, authorities released more than 100 photos of young
women and girls found in Alcala's storage locker, and prosecutors said
authorities were looking into whether Alcala could be connected to cases in New
York and other states.
He's now charged in New York with killing Cornelia Crilley, a Trans World
Airlines flight attendant found raped and strangled with a pair of stockings in
her Manhattan apartment, and Ellen Hover, whose remains were found in the woods
on a suburban estate. Hover, who had studied biology and music, was the daughter
of comedy writer Herman Hover, a former owner of the one-time Hollywood hotspot
Ciro's. Both women were 23.
___
Dearen reported from San Rafael, Calif. Associated Press writer Amy Taxin
contributed to this report from Santa Ana, Calif.
WASHINGTON — Cory R. Maples, a death row inmate in Alabama, had what turned out
to be the bad fortune to be represented by one of the most prominent law firms
in the nation. The Supreme Court heard arguments in his case on Tuesday, and
Justice Samuel A. Alito Jr. described where matters stood.
“Mr. Maples has lost his right to appeal through no fault of his own,” Justice
Alito said, “through a series of very unusual and unfortunate circumstances.”
When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the
New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them
back unopened and marked “Return to Sender.” A court clerk in Alabama filed the
returned envelopes and did nothing more.
Mr. Maples’s deadline to appeal the ruling came and went, and so far every court
to hear his case has said, in effect, tough luck.
Mr. Maples was convicted of murdering two companions after a night of drinking,
and his guilt is not in serious dispute. His main argument is that his
court-appointed trial lawyers in Alabama failed to present important evidence
about his background at the penalty phase of the trial.
Several justices seemed inclined to find a way to help Mr. Maples and appeared
to be frustrated by the conduct of Alabama officials.
Justice Alito, for instance, pressed John C. Neiman, Alabama’s solicitor
general, about why the state had opposed Mr. Maples’s efforts to have the
deadline waived instead of addressing his claims on the merits.
“Why push this technical argument?” Justice Alito asked.
Mr. Neiman did not give a direct answer.
Justice Elena Kagan wondered whether the court clerk should have done more to
make sure the ruling was actually received by Mr. Maples’s lawyers in New York.
“Is this what somebody would do if they actually wanted to accomplish notice, if
they actually wanted the person to get that letter?” Justice Kagan asked.
“So you send off this letter,” she added, “and you get it back from the
principal attorneys, and you ask yourself: ‘Huh, should I do anything now?’ What
would you say?”
Mr. Neiman responded, “Your Honor, I suspect that in those circumstances I might
well personally do something else.”
Justice Antonin Scalia proposed a wrinkle. “The clerk has to believe it’s an
important letter,” he said.
That caveat did not trouble Justice Kagan. “Justice Scalia is right,” she said.
“I am assuming that a letter disposing of a ruling in a capital case issued
after 18 months when nobody knew that that letter was coming, that that’s an
important letter for a death row prisoner to get.”
The ruling came in response to a filing by two lawyers from Sullivan & Cromwell,
both associates, who argued that Mr. Maples’s trial lawyers had been
ineffective. But the associates had left the firm by the time the state court
ruled, and neither they nor the firm had informed the court or, seemingly, the
firm’s own mailroom.
Mr. Maples, now represented by Gregory G. Garre of Latham & Watkins, argued that
the lawyers from Sullivan & Cromwell had abandoned him and that their mistakes
should therefore not be imputed to him.
At one point, Mr. Garre said, the state seemed to acknowledge that Mr. Maples’s
lawyers had disappeared. When the deadline for appeals had passed, an Alabama
prosecutor wrote directly to Mr. Maples in prison to tell him so, Mr. Garre
said, “which would have been unethical if the state had known or believed that
he was represented by counsel.”
Chief Justice John G. Roberts Jr. seemed to find that letter both significant
and offensive.
“Why did he do it?” Chief Justice Roberts asked. “Just gloating that the fellow
had lost? What was the point of it? He must have thought there was a problem,
right?”
Mr. Neiman said only that the prosecutor knew that Mr. Maples’s lawyers from
Sullivan & Cromwell had failed to file an appeal.
Mr. Maples’s case, Maples v. Thomas, No. 10-63, is complicated by the fact that
a third lawyer, in Alabama, had indisputably received the crucial document.
That lawyer said in a sworn statement that he was Mr. Maples’s lawyer in name
only, serving as local counsel because the New York lawyers were not licensed to
practice in Alabama. He added that he had not passed the ruling along to his
co-counsel or to his client.
That did not satisfy Justice Scalia. “He’s the counsel of record, right?”
Justice Scalia asked. “I’m counsel of record, but I don’t even do so much as to
forward notices to the guys that are doing the real work?”
The death penalty is not “immoral,” “grotesque” or “unjust.” Rather, it is a
just punishment that should be reserved for the grotesque and immoral crimes
that we hear and read about every day.
However, the administration of the death penalty is a different story. You
correctly state that it is subject to arbitrariness, discrimination and other
problems, including that mistakes are made.
The statistics do show that in our country a sentence of execution is more
frequently given to minorities and the poor in certain geographic regions. DNA
evidence has also proved that innocent people have been put on death row.
However, DNA can be used as both a sword and a shield. The same way that DNA
exonerates the innocent, it should condemn the guilty, but only with additional
safeguards, including eyewitness testimony, video surveillance and confessions
that are subject to judicial oversight to test their reliability.
Without indisputable video surveillance or DNA evidence together with other
forms of reliable evidence, a sentence of life imprisonment without the
possibility of parole should be applied instead of the death penalty.
ALAN SASH
Chappaqua, N.Y., Sept. 26, 2011
The writer is a commercial litigation lawyer.
Readers React
Mr. Sash’s letter speeds right past the central issue. The problem with the
death penalty is not that we may be executing innocent people; notwithstanding
widespread concern about the Troy Davis case, we’re doing much better at
avoiding questionable executions with the help of DNA testing and multilevel
review of the evidence and trial process.
The problem with the death penalty is not that it fails to provide effective
deterrence to serious crimes, or that botched executions are cruel and unusual.
The problem with the death penalty is that it’s just plain wrong for a civilized
society to kill people.
That’s why all our friends in the community of nations have abolished the death
penalty or no longer use it, and why China, Iran, North Korea, Yemen and Syria
continue to use it. Using it diminishes us as a country.
I’m a part-time circuit court judge, and I believe in law and order. But people
who commit our most heinous crimes should be removed from society for the rest
of their lives; they shouldn’t be killed.
L. PHILLIPS RUNYON III
Peterborough, N.H., Sept. 28, 2011
There are indeed crimes that demand the death penalty, when we can agree that a
murderer has forfeited his right to live in society, even a society of fellow
prisoners, and the state must end his life in the name of justice. But these are
not what Mr. Sash calls “the grotesque and immoral crimes that we hear and read
about every day” (are there moral crimes?). Rather, the death penalty should be
reserved for exceptional circumstances.
Even when a killer is guilty beyond any doubt, imprisonment should almost always
be the default penalty. There must be a compelling reason to justify execution.
STEVE NELSON
Washington, Mass., Sept. 28, 2011
I support the death penalty. You cannot look at a crime like the brutal murder
of a mom and her two girls in a Connecticut home invasion and not think “those
responsible should die.”
In my former career as a military attorney, I both prosecuted and defended
hundreds of criminal cases, from first-degree murder to shoplifting. Proof
beyond a reasonable doubt is proof beyond a reasonable doubt. There is no higher
or better standard of proof.
There is nothing inherently difficult in proving that one human being killed
another. From a prosecutor’s standpoint, it can be harder to prove a bad-check
case than a murder case.
Finally, I am fed up with the idea that a defense counsel is incompetent if he
fails to present, after his client is found guilty, psychological testimony
about how sad and pathetic the defendant’s childhood was. The jury doesn’t care.
Its attitude is the same as mine: You committed a heinous crime. Now face the
consequences.
PAUL McBRIDE
Sacramento, Sept. 28, 2011
As with all human institutions, the criminal justice system suffers in various
degrees from corruption, incompetence and malfeasance. Even the most ardent
supporter of the death penalty would agree that, in some cases, innocent people
are convicted, and the guilty walk free. We know this from the 138 exonerations
of death row inmates.
The penalty of death is too permanent to accept inevitable errors or willful
misconduct by the police, judges or prosecutors. The danger of executing an
innocent person is greater than the societal benefit derived from putting a
guilty prisoner to death, particularly when reasonable alternatives exist, such
as life in prison with no possibility of parole.
The rationale for imprisoning a convicted criminal is threefold: to protect
society from future harm, to deter other would-be criminals and to punish the
offender. Jail fulfills these objectives; no circumstances warrant use of the
death penalty.
JEFF SCHWEITZER
Spicewood, Tex., Sept. 28, 2011
Prison as an alternative to the death penalty, even prison without possibility
of parole, is sometimes not a suitable punishment for heinous crimes. In today’s
prisons, inmates participate in sports activities and have access to libraries,
entertainment and medical care. Thus prison life, while of course not desirable,
is at least tolerable to many inmates.
LEROY KAYSER
East Hampton, N.Y., Sept. 28, 2011
A central point in the Times editorial that Mr. Sash does not address is the
lack of decent counsel for poor defendants, especially at their initial trial.
Texas, the state that executes the most people every year, has an abysmal record
of providing defense counsel to the indigent, which includes most capital
defendants. Even states that have relatively decent public defender systems do
not spend nearly enough time or money to ensure justice for all.
Should it be any surprise that prisons — including death rows — are filled with
the poor, especially people of color?
The problem of the unfairness of the death penalty is not separate from the rest
of the criminal justice system. It is an integral part of a system that is often
unfair, discriminatory and mistaken at various points. The death penalty merely
magnifies the inherent unfairness, perhaps because of its finality.
DANIEL E. HOOD
New York, Sept. 28, 2011
The writer is a retired professor of criminology.
Mr. Sash suggests that the death penalty is acceptable with “indisputable video
surveillance” and “other forms of reliable evidence” to prove guilt. When he can
also guarantee perfect judges, infallible juries and error-free defense
attorneys, then he may have a point.
As long as human beings are part of the judicial system, there will be wrongful
executions. The question is what benefit do we get from hundreds of “just”
executions, and is that benefit worth even a single person put to death
unjustly?
STEVEN COHEN
South Windsor, Conn., Sept. 28, 2011
As a European, I am bewildered and disgusted in equal measure by this seemingly
perpetual American obsession with executing people. Even a seemingly sensible
person like Mr. Sash thinks it is perfectly reasonable, moral and just to take
the life of another human being, as if revenge equaled justice.
We dispassionate Northern Europeans tend to be of the opinion that the purpose
of incarcerating people is to prevent the criminal from continuing to commit
crimes and, for nonviolent crimes, to deter others. Punishment for its own sake
doesn’t even enter the equation.
For serious violent crimes, the threat of punishment has no deterring effect
whatsoever. If it did, Texas would have the lowest violent crime rate in the
Western world. So even if one ignores the morality (or lack thereof) of the
death penalty itself, surely we can argue, more prosaically, that it simply
doesn’t work?
NILS WETTERLIND
Stockholm, Sept. 28, 2011
I wish I could share Mr. Sash’s hope that judicial oversight furnishes the
safeguards necessary to render eyewitness testimony, video surveillance and
confession evidence, and yes, even DNA evidence, sufficiently reliable in all
cases to render a death sentence the “just punishment” he and many others
believe it can be in certain circumstances.
Unfortunately, with rare exceptions, the state and federal trial courts in which
I have appeared in my 35-plus years as a lawyer defending capital and noncapital
criminal cases decline to provide that oversight. Trial judges are human, and
can be as defiant or mistaken about what is required of them as anyone else. But
most of the time when trial judges fail to provide that crucial oversight, it is
because the appellate courts tell them they do not have to.
ALISON STEINER
Jackson, Miss., Sept. 28, 2011
The Writer Responds
I disagree with Mr. Runyon that “the problem with the death penalty is that it’s
just plain wrong for a civilized society to kill people,” and with Mr.
Schweitzer that “no circumstances” warrant its use.
Society recognizes that some crimes are so heinous that no other punishment
besides death will suffice. When you combine that with the certainty that a
defendant committed the crime, you arrive at Mr. Nelson’s position that “there
are indeed crimes that demand the death penalty,” in “exceptional
circumstances.”
Mr. Schweitzer voices the universal concern that we may execute an innocent
person. To prevent that, the death penalty should be reserved for cases where
there is 100 percent certainty of guilt, subject to appellate review.
This process is fair as long as the defendant has access to effective counsel,
as guaranteed by the Sixth Amendment. If, as a society, we believe that the
death penalty is a just punishment for some offenses, then we need to ensure
that the system is properly funded.
When the Supreme Court reinstituted the death penalty 35 years
ago, it did so provisionally. Since then, it has sought to articulate legal
standards for states to follow that would ensure the fair administration of
capital punishment and avoid the arbitrariness and discrimination that had led
it to strike down all state death penalty statutes in 1972.
As the unconscionable execution of Troy Davis in Georgia last week underscores,
the court has failed because it is impossible to succeed at this task. The death
penalty is grotesque and immoral and should be repealed.
The court’s 1976 framework for administering the death penalty, balancing
aggravating factors like the cruelty of the crime against mitigating ones like
the defendant’s lack of a prior criminal record, came from the American Law
Institute, the nonpartisan group of judges, lawyers and law professors. In 2009,
after a review of decades of executions, the group concluded that the system
could not be fixed and abandoned trying.
Sentencing people to death without taking account of aggravating and mitigating
circumstances leads to arbitrary results. Yet, the review found, so does
considering such circumstances because it requires jurors to weigh competing
factors and makes sentencing vulnerable to their biases.
Those biases are driven by race, class and politics, which influence all aspects
of American life. As a result, they have made discrimination and arbitrariness
the hallmarks of the death penalty in this country.
For example, two-thirds of all those sentenced to death since 1976 have been in
five Southern states where “vigilante values” persist, according to the legal
scholar Franklin Zimring. Racism continues to infect the system, as study after
study has found in the past three decades.
The problems go on: Many defendants in capital cases are too poor to afford
legal counsel. Many of the lawyers assigned to represent them are poorly
equipped for the job. A major study done for the Senate Judiciary Committee
found that “egregiously incompetent defense lawyering” accounted for about
two-fifths of the errors in capital cases. Apart from the issue of counsel,
these cases are more expensive at every stage of the criminal process than
noncapital cases.
Politics also permeates the death penalty, adding to chances of arbitrary
administration. Most prosecutors in jurisdictions with the penalty are elected
and control the decision to seek the punishment. Within the same state,
differing politics from county to county have led to huge disparities in use of
the penalty, when the crime rates and demographics were similar. This has been
true in Pennsylvania, Georgia, Texas and many other states.
So far, under this horrifying system, 17 innocent people sentenced to death have
been exonerated and released based on DNA evidence, and 112 other people based
on other evidence. All but a few developed nations have abolished the death
penalty. It is time Americans acknowledged that the death penalty cannot be made
to comply with the Constitution and is in every way indefensible.
September 24, 2011
The New York Times
By ROSS DOUTHAT
IT’S easy to see why the case of Troy Davis, the Georgia man
executed last week for the 1989 killing of an off-duty police officer, became a
cause célèbre for death penalty opponents. Davis was identified as the shooter
by witnesses who later claimed to have been coerced by investigators. He was
prosecuted and convicted based on the same dubious eyewitness testimony, rather
than forensic evidence. And his appeals process managed to be ponderously slow
without delivering anything like certainty: it took the courts 20 years to say a
final no to the second trial that Davis may well have deserved.
For many observers, the lesson of this case is simple: We need to abolish the
death penalty outright. The argument that capital punishment is inherently
immoral has long been a losing one in American politics. But in the age of DNA
evidence and endless media excavations, the argument that courts and juries are
just too fallible to be trusted with matters of life and death may prove more
effective.
If capital punishment disappears in the United States, it won’t be because
voters and politicians no longer want to execute the guilty. It will be because
they’re afraid of executing the innocent.
This is a healthy fear for a society to have. But there’s a danger here for
advocates of criminal justice reform. After all, in a world without the death
penalty, Davis probably wouldn’t have been retried or exonerated. His appeals
would still have been denied, he would have spent the rest of his life in
prison, and far fewer people would have known or cared about his fate.
Instead, he received a level of legal assistance, media attention and activist
support that few convicts can ever hope for. And his case became an example of
how the very finality of the death penalty can focus the public’s attention on
issues that many Americans prefer to ignore: the overzealousness of cops and
prosecutors, the limits of the appeals process and the ugly conditions faced by
many of the more than two million Americans currently behind bars.
Simply throwing up our hands and eliminating executions entirely, by contrast,
could prove to be a form of moral evasion — a way to console ourselves with the
knowledge that no innocents are ever executed, even as more pervasive abuses go
unchecked. We should want a judicial system that we can trust with matters of
life and death, and that can stand up to the kind of public scrutiny that
Davis’s case received. And gradually reforming the death penalty — imposing it
in fewer situations and with more safeguards, which other defendants could
benefit from as well — might do more than outright abolition to address the
larger problems with crime and punishment in America.
This point was made well last week by Pascal-Emmanuel Gobry, writing for The
American Scene. In any penal system, he pointed out, but especially in our own —
which can be brutal, overcrowded, rife with rape and other forms of violence — a
lifelong prison sentence can prove more cruel and unusual than a speedy
execution. And a society that supposedly values liberty as much or more than
life itself hasn’t necessarily become more civilized if it preserves its
convicts’ lives while consistently violating their rights and dignity. It’s just
become better at self-deception about what’s really going on.
Fundamentally, most Americans who support the death penalty do so because they
want to believe that our justice system is just, and not merely a mechanism for
quarantining the dangerous in order to keep the law-abiding safe. The case for
executing murderers is a case for proportionality in punishment: for sentences
that fit the crime, and penalties that close the circle.
Instead of dismissing this point of view as backward and barbaric, criminal
justice reformers should try to harness it, by pointing out that too often our
punishments don’t fit the crime — that sentences for many drug crimes are
disproportionate to the offenses, for instance, or that rape and sexual assault
have become an implicit part of many prison terms. Americans should be urged to
support penal reform not in spite of their belief that some murderers deserve
execution, in other words, but because of it — because both are attempts to
ensure that accused criminals receive their just deserts.
Abolishing capital punishment in a kind of despair over its fallibility would
send a very different message. It would tell the public that our laws and courts
and juries are fundamentally incapable of delivering what most Americans
consider genuine justice. It could encourage a more cynical and utilitarian view
of why police forces and prisons exist, and what moral standards we should hold
them to. And while it would put an end to wrongful executions, it might well
lead to more overall injustice.
September 22, 2011
The New York Times
By DAHLIA LITHWICK and LISA T. McELROY
ON Wednesday night, Troy Davis was executed for a crime he may
or may not have committed. But the real crime on Wednesday night was the action
— or really the lack of action, the absolute radio silence — of the United
States Supreme Court, which, as the nation watched and waited, did nothing for
203 minutes past the scheduled execution time. Or at least nothing anyone could
see.
It is a truism of the American justice system that the Supreme Court operates in
secret, unmoved by candlelight vigils and protests, polls and placard-wielding
crowds. That is right and proper. It’s the reason the justices are unelected and
also the reason they are required to write fully developed opinions and orders.
But we must keep in mind that the court knew for several days that the execution
was scheduled for Wednesday at 7 p.m. It knew that it would receive a
last-minute petition for a stay and that Georgia would not carry out the
execution until it spoke. Under those circumstances, for it to consider a matter
of life and death, while for over three long hours America and the world are
told absolutely nothing, is a violation of that basic bargain. It is a show of
power without reason and of authority without accountability.
For 203 minutes on Wednesday night Americans speculated and wondered, worried
and guessed, without recourse — waiting for a single sentence from the Supreme
Court. While the court considered the petition for far longer than was typical,
all while communicating nothing, even Mr. Davis’s own lawyers were unclear as to
why the delay had happened, what exactly the Supreme Court was debating, and
when the court would decide Mr. Davis’s fate.
For 3 hours and 23 minutes the foremost lawyers and pundits in the country tried
to guess at what was going on in Washington, while the Supreme Court’s Web site
offered no information about the matter. If any other branch of government had
exercised such power without explanation, it would have looked like all of
democracy had been put on hold.
And then there’s the human dimension. Because while the court went dark for over
three hours, a man waited to learn whether he would live or die, as did his
family. The family of Mark A. MacPhail Sr., the Savannah police officer whom Mr.
Davis was convicted of killing, waited for closure.
We may never know what took the Supreme Court so long. After all, only its
formal opinions speak for the institution as a whole. And, usually, the American
public accepts that state of affairs, embracing the rule of law as a vital tool
of democracy.
But the court’s three long hours of silence on Wednesday night — perhaps a
result of an internal debate among the nine justices, a procedural problem, or a
good-faith but unsuccessful effort to reach consensus — represented a
spectacularly public failure to acknowledge that in this day and age, no branch
of government can go behind closed doors with no communication for an entire
evening.
It wasn’t that we needed much. Just a one-sentence statement, even. A simple
acknowledgment that much of the country was holding its breath would not have
offended the court’s sense of gravitas. An acknowledgment that the life of the
law is the people, not the court would have served.
That lack of awareness reflects badly on the court. Wednesday night could have
been a teachable moment about what makes the court great, but the moment passed
with silence, then an inscrutable one-sentence conclusion.
The relationship between the court, the public, the media, and new technology is
deeply complicated, and the justices think hard about these issues. We respect
that. But the institutional decision to say nothing while we waited appeared to
be the court’s putting form over function, formal procedure before compassion.
The Supreme Court missed an opportunity on Wednesday night to remind the
American public that, while justice must be blind, the justices are not blind to
the needs of the American people — and of a capital defendant who would die
without having gotten reasons or answers.
Dahlia Lithwick is a senior editor at Slate who covers the
Supreme Court. Lisa T. McElroy is an associate professor of law at Drexel
University.
In Death-Penalty Debate, Execution Offers Little Closure
September 22, 2011
The New York Times
By JOHN SCHWARTZ
After decades of litigation, the final legal ruling allowing
the execution of Troy Davis was a one-sentence order from the United States
Supreme Court so terse that it could have fit neatly into a Twitter message with
room to spare.
But it is hardly the last word on the case, or in the national debate over the
death penalty.
The finality of Mr. Davis’s sentence, and the outpouring of protest worldwide,
leaves in its wake more than its share of questions — many that go beyond the
facts of the case to encompass fundamental issues of capital punishment. Because
Mark MacPhail, the Savannah, Ga., police officer he was convicted of killing in
1989, was white and Mr. Davis, above, was black, the progress of Mr. Davis’s
case over two decades widened fault lines on the death penalty and, in
particular, over the question of whether a black person in the South could be
guaranteed the same justice as a white one.
The nature of those doubts and the arguments for Mr. Davis’s innocence could be,
and will be, debated endlessly. And while no judge who reviewed the minimal
physical evidence and the testimony and witness recantations ever overturned Mr.
Davis’s conviction — one judge dismissed the defense arguments as “smoke and
mirrors” — activists portrayed the case as a symbol of the fallibility of
eyewitness identification, of the intransigence of the justice system and of its
unwillingness to correct errors — and even as a failure of the nation itself.
“The execution of an innocent man crystallizes in the most sickening way the
vast systemic injustices that plague our death penalty system,” Denny LeBoeuf,
director of the Capital Punishment Project at the American Civil Liberties
Union, said in a statement.
Amnesty International, which mobilized much of the opposition to the Davis
execution, pledged to redouble its efforts against the death penalty in the
United States, and the executive committee of the N.A.A.C.P. voted this week to
raise the death penalty to the forefront of its list of priorities in future
advocacy.
Stephen Dear, executive director of People of Faith Against the Death Penalty,
an interfaith advocacy group based in Carrboro, N.C., said his group also
planned to use the momentum generated by religious leaders who opposed the Davis
execution to galvanize broader opposition. “This has been a teachable moment for
America’s religious leadership: that the death penalty is so awash with bias and
errors that there’s no morally acceptable alternative but repealing it,” Mr.
Dear said.
But can the debate over the death penalty even be called a national
conversation, or is it simply two factions shouting past each other? Does it
change hearts and minds, or harden advocates in their positions? Brawls, after
all, do not persuade.
This execution underscores the uncomfortable relationship Americans have with
the death penalty. A Gallup poll last October showed that 64 percent of those
surveyed supported it for those convicted of murder, a level that had been
relatively consistent for the previous seven years. Support had been higher — 80
percent in 1994 — but it has slipped, in part because of the hundreds of
convictions overturned because of DNA evidence.
Gallup has asked whether people favor life imprisonment without parole as an
alternative to the death penalty, and those surveyed are almost evenly split,
with 49 percent supporting capital punishment and 46 percent preferring life
imprisonment.
Jurors have shown a growing reluctance to vote for the ultimate penalty; in
1994, 314 people were placed on death row, but that number has dropped by
roughly two-thirds since, according to figures compiled by the Death Penalty
Information Center, a nonprofit group that opposes the death penalty.
Even among more casual observers, death penalty politics have become more
prominent in light of the questions in the Davis case. Big Boi, a rapper from
Savannah who showed up at the state prison in Jackson, Ga., on Wednesday to
oppose the death penalty, said the issue was one he and his friends were
concerned about. “People are starting to think about this,” he said. “ ‘Thou
shalt not kill’ should apply to governments and people.”
Mr. Davis’s execution and the crusade it ignited ultimately bring to bear larger
questions of a longing for an end to seemingly endless appeals.
William Otis, a former federal prosecutor and special White House counsel under
the first President George Bush, said “there has to be finality for any system
that’s going to work,” but added: “To say that there has to be finality is not
to say that things should be rushed. The primary duty of courts is to get it
right.”
A problem for Mr. Davis’s defenders, he said, is that judges tend to look at
recantations, especially from witnesses who are in prison, “with a flinty eye.”
Mr. Otis added: “The question is not whether you can avoid errors. The only
realistic question in an adult mind is which set of errors you’re going to
accept. You have to be mature and honest about it, and understand there is the
risk of executing an innocent person.”
Douglas A. Berman, who teaches sentencing law at Ohio State University, said
that Mr. Davis was the 1,269th person to be executed since the Supreme Court
lifted its ban on the practice in 1976. (The 1,268th prisoner met his death
hours before Mr. Davis; Lawrence Russell Brewer was executed Wednesday for the
dragging death of James Byrd Jr., a black man, in 1998.) “I’m not sure we’re
going to have a healthy national dialogue” on the death penalty because of the
Davis case, Mr. Berman said.
“Many of the people asserting confidence in his guilt are much more expressing
confidence in our legal system and our jury system,” he said. “That’s why the
shouting gets so loud — because what is nominally a factual issue of his guilt
is really a dispute over how that issue gets resolved,” and by whom.
To Eric M. Freedman, a professor at Hofstra Law School and an expert on the
death penalty, the desire for finality is “understandable in some respects,” but
the process of reversing convictions places too high a bar in front of
defendants. At trial, he said, the state has the burden of proving them guilty,
and if “one reasonable juror would have had a reasonable doubt, that would have
gotten you acquittal.”
“After conviction,” Professor Freedman said, “the burden shifts to them.”
Thus, he said, the process “allows error to justify error” through its efforts
to respect the decisions of juries.
“The system does bury its mistakes,” he said.
Laurie Goodstein and Kim Severson contributed reporting.
September 21, 2011
The New York Times
By KIM SEVERSON
JACKSON, Ga. — Proclaiming his innocence, Troy Davis was put
to death by lethal injection on Wednesday night, his life — and the hopes of
supporters worldwide — prolonged by several hours while the Supreme Court
reviewed but then declined to act on a petition from his lawyers to stay the
execution.
Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years
ago, entered the death chamber shortly before 11 p.m., four hours after the
scheduled time. He died at 11:08.
This final chapter before his execution had become an international symbol of
the battle over the death penalty and racial imbalance in the justice system.
“It harkens back to some ugly days in the history of this state,” said the Rev.
Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.
Mr. Davis remained defiant at the end, according to reporters who witnessed his
death. He looked directly at the members of the family of Mark MacPhail, the
officer he was convicted of killing, and told them they had the wrong man.
“I did not personally kill your son, father, brother,” he said. “All I can ask
is that you look deeper into this case so you really can finally see the truth.”
He then told his supporters and family to “keep the faith” and said to prison
personnel, “May God have mercy on your souls; may God bless your souls.”
One of the witnesses, a radio reporter from WSB in Atlanta, said it appeared
that the MacPhail family “seemed to get some satisfaction” from the execution.
For Mr. Davis’s family and other supporters gathered in front of the prison, the
final hours were mixed with hope, tears and exhaustion. The crowd was buoyed by
the Supreme Court’s involvement, but crushed when the justices issued their
one-sentence refusal to consider a stay.
When the news of his death came, the family left quietly and the 500 or so
supporters began to pack up and leave their position across the state highway
from the prison entrance. Mr. Davis’s body was driven out of the grounds about
midnight.
During the evening, a dozen supporters of the death penalty, including people
who knew the MacPhail family sat quietly, separated from the Davises and their
supporters by a stretch of lawn and rope barriers.
The appeal to the Supreme Court was one of several last-ditch efforts by Mr.
Davis on Wednesday. Earlier in the day, an official with the National
Association for the Advancement of Colored People said that the vote by the
Georgia parole board to deny clemency to Mr. Davis was so close that he hoped
there might be a chance to save him from execution.
The official, Edward O. DuBose, president of the Georgia chapter, said the group
had “very reliable information from the board members directly that the board
was split 3 to 2 on whether to grant clemency.”
“The fact that that kind of division was in the room is even more of a sign that
there is a strong possibility to save Troy’s life,” he said.
The N.A.A.C.P said it had been in contact with the Department of Justice on
Wednesday, in the hope that the federal government would intervene on the basis
of civil rights violations, meaning irregularities in the original investigation
and at the trial.
Earlier in the day, his lawyers had asked the state for another chance to spare
him: a lie detector test.
But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr.
Davis’s clemency after a daylong hearing on Monday, quickly responded that there
would be no reconsideration of the case, and the polygraph test was abandoned.
Mr. Davis’s supporters also reached out to the prosecutor in the original case
and asked him to persuade the original judge to rescind the death order.
Benjamin Jealous, the president of the N.A.A.C.P, also tried to ask President
Obama for a reprieve.
The Innocence Project, which has had a hand in the exoneration of 17 death-row
inmates through the use of DNA testing, sent a letter to the Chatham County
district attorney, Larry Chisolm, urging him to withdraw the execution warrant
against Mr. Davis.
Mr. Davis was convicted of the 1989 shooting of Officer MacPhail, who was
working a second job as a security guard. A homeless man called for help after a
group that included Mr. Davis began to assault him, according to court
testimony. When Officer MacPhail went to assist him, he was shot in the face and
the heart.
Before Wednesday, Mr. Davis had walked to the brink of execution three times.
His conviction came after testimony by some witnesses who later recanted and on
the scantest of physical evidence, adding fuel to those who rely on the Internet
to rally against executions and to question the validity of eyewitness
identification and of the court system itself.
But for the family of the slain officer and others who believed that two
decades’ worth of legal appeals and Supreme Court intervention was more than
enough to ensure justice, it was not an issue of race but of law.
Inside the prison, Officer MacPhail’s widow, Joan MacPhail-Harris, said calling
Mr. Davis a victim was ludicrous.
“We have lived this for 22 years,” she said on Monday. “We are victims.”
She added: “We have laws in this land so that there is not chaos. We are not
killing Troy because we want to.”
Mr. Davis, who refused a last meal, had been in good spirits and prayerful, said
Wende Gozan Brown, a spokeswoman for Amnesty International, who visited him on
Tuesday. She said he had told her his death was for all the Troy Davises who
came before and after him.
“I will not stop fighting until I’ve taken my last breath,” she recounted him as
saying. “Georgia is prepared to snuff out the life of an innocent man.”
The case has been a slow and convoluted exercise in legal maneuvering and death
penalty politics.
The state parole board granted him a stay in 2007 as he was preparing for his
final hours, saying the execution should not proceed unless its members “are
convinced that there is no doubt as to the guilt of the accused.” The board has
since added three new members.
In 2008, his execution was about 90 minutes away when the Supreme Court stepped
in. Although the court kept Mr. Davis from execution, it later declined to hear
the case.
This time around, the case catapulted into the national consciousness with
record numbers of petitions — more than 630,000 — delivered to the board to stay
the execution, and the list of people asking for clemency included former
President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress,
entertainment figures like Cee Lo Green and even some death penalty supporters,
including William S. Sessions, a former F.B.I. director.
Kim Severson reported from Jackson, and John Schwartz from New York.
Troy Davis is scheduled to be executed on Wednesday for the
1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole
board’s refusal to grant him clemency is appalling in light of developments
after his conviction: reports about police misconduct, the recantation of
testimony by a string of eyewitnesses and reports from other witnesses that
another person had confessed to the crime.
This case has attracted worldwide attention, but it is, in essence, no different
from other capital cases. Across the country, the legal process for the death
penalty has shown itself to be discriminatory, unjust and incapable of being
fixed. Just last week, the Supreme Court granted a stay of execution for Duane
Buck, an African-American, hours before he was to die in Texas because a
psychologist testified during his sentencing that Mr. Buck’s race increased the
chances of future dangerousness. Case after case adds to the many reasons why
the death penalty must be abolished.
The grievous errors in the Davis case were numerous, and many arose out of
eyewitness identification. The Savannah police contaminated the memories of four
witnesses by re-enacting the crime with them present so that their individual
perceptions were turned into a group one. The police showed some of the
witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was
set apart by a different background. The lineup was also administered by a
police officer involved in the investigation, increasing the potential for
influencing the witnesses.
In the decades since the Davis trial, science-based research has shown how
unreliable and easily manipulated witness identification can be. Studies of the
hundreds of felony cases overturned because of DNA evidence have found that
misidentifications accounted for between 75 percent and 85 percent of the
wrongful convictions. The Davis case offers egregious examples of this kind of
error.
Under proper practices, no one should know who the suspect is, including the
officer administering a lineup. Each witness should view the lineup separately,
and the witnesses should not confer about the crime. A new study has found that
even presenting photos sequentially (one by one) to witnesses reduced
misidentifications — from 18 percent to 12 percent of the time — compared with
lineups where photos were presented all at once, as in this case.
Seven of nine witnesses against Mr. Davis recanted after trial. Six said the
police threatened them if they did not identify Mr. Davis. The man who first
told the police that Mr. Davis was the shooter later confessed to the crime.
There are other reasons to doubt Mr. Davis’s guilt: There was no physical
evidence linking him to the crime introduced at trial, and new ballistics
evidence broke the link between him and a previous shooting that provided the
motive for his conviction.
More than 630,000 letters pleading for a stay of execution were delivered to the
Georgia board last week. Those asking for clemency included President Jimmy
Carter, 51 members of Congress and death penalty supporters, such as William
Sessions, a former F.B.I. director. The board’s failure to commute Mr. Davis’s
death sentence to life without parole was a tragic miscarriage of justice.
September 20, 2011
The New York Times
By KIM SEVERSON
ATLANTA — Barring an unimaginable legal reversal, Troy Davis
will be executed by lethal injection at a Georgia prison on Wednesday.
In the days that follow, Amnesty International and other groups that fight the
death penalty will move on to other cases.
The family of Mark MacPhail, the Savannah police officer who was trying to break
up a fight in a fast-food parking lot when Mr. Davis shot him in the face and
the heart, will look for closure after 22 years of courtrooms, news coverage and
three heart-ripping stays of execution.
Legal experts will debate whether a case built on a tiny amount of physical
evidence and shifting witness testimony was enough to warrant execution, and
whether death penalty politics in the United States have reached a tipping
point.
But here, in this capital city of the Deep South, the case will continue to
resonate as a barometer of racism in this country, many said.
Throughout Tuesday and into the evening, when a few hundred people gathered at
the Capitol downtown, people spoke again and again of how Mr. Davis was wrongly
accused, wrongly convicted and now, in their minds, about to be wrongly executed
by a legal system stacked against minorities.
“What am I supposed to tell my son? That we still live in a Jim Crow society?”
said Mary Ross, 37, who attended a somber news conference inside Ebenezer
Baptist Church in the neighborhood where the Rev. Dr. Martin Luther King Jr.
preached.
There, members of the N.A.A.C.P. and Amnesty International and the church pastor
outlined what are clearly Hail Mary efforts to stop the execution.
They pleaded publicly to the Georgia State Board of Pardons and Parole, which
earlier in the day denied Mr. Davis’s clemency after a daylong hearing Monday.
In a brief statement, the five-member board, which is appointed by the governor,
said that its members “have not taken their responsibility lightly and certainly
understand the emotions attached to a death penalty case.”
Mr. Davis’s supporters were reaching out to the prosecutor in the original case,
asking that he persuade the original judge to rescind the death order. Benjamin
Jealous, head of the National Association for the Advancement of Colored People,
who planned to visit Mr. Davis on Wednesday, was trying to ask President Obama
for a reprieve.
The Innocence Project, which has had a hand in the exoneration of 17 death-row
inmates through the use of DNA testing, sent a letter to the Chatham County
district attorney, Larry Chisolm, urging him to withdraw the execution warrant
against Mr. Davis, although there is no DNA evidence at issue in the case.
Regardless of whether those hope-against-hope efforts work, the N.A.A.C.P. and
others said they would call for the Department of Justice to investigate the
case as a civil rights violation, asking that the original police investigation
and the legal process that led to Mr. Davis’s conviction be examined.
“It harkens back to some ugly days in the history of this state,” said the Rev.
Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.
But for the family of the slain officer, and countless others who believe that
two decades worth of legal appeals and Supreme Court intervention is more than
enough to ensure justice, it is not an issue of race but of law.
Calling Mr. Davis a victim is ludicrous, said Mr. MacPhail’s widow, Joan
MacPhail-Harris.
“We have lived this for 22 years,” she said Monday. “We are victims."
She added, “We have laws in this land so that there is not chaos. We are not
killing Troy because we want to.”
Her daughter, Madison, 24, along with her brother, Mark, 22, will be at the
execution Wednesday. The officer’s mother, Anneliese MacPhail, will not. But she
welcomes it, saying: “I’m not for blood — I’m for justice. We have been through
hell, my family.”
Mr. Davis’s family, who had gathered in an Atlanta hotel to await the decision,
learned that he would be put to death from members of his legal team and Amnesty
International. They immediately went to the state prison in Jackson, about an
hour’s drive south of Atlanta, to be with him.
Mr. Davis, who has refused a last meal, was in good spirits and prayerful, said
Wende Gozan Brown, a spokeswoman for Amnesty International, who visited Mr.
Davis on Tuesday.
He told her that his death was for all the Troy Davises who came before and
after him.
“I will not stop fighting until I’ve taken my last breath,” he said in a
conversation relayed by Ms. Brown. “Georgia is prepared to snuff out the life of
an innocent man.”
The case has been a slow and convoluted exercise in legal maneuvering and death
penalty politics.
This is the fourth time Mr. Davis has faced the death penalty. The state parole
board granted him a stay in 2007 as he was preparing for his final hours, saying
the execution should not proceed unless its members “are convinced that there is
no doubt as to the guilt of the accused.” The board has since added three new
members.
In 2008, his execution was about 90 minutes away when the Supreme Court stepped
in. Although the court kept Mr. Davis from execution, it later declined to hear
the case.
In the week before his third execution date, the United States Court of Appeals
for the 11th Circuit issued a stay to consider his lawyer’s arguments that new
testimony that could prove his innocence had not been considered.
The appeals court denied the claim but allowed time for Mr. Davis to take his
argument directly to the Supreme Court, which ordered a federal court to once
again examine new testimony.
But in June, a federal district judge in Savannah said Mr. Davis’s legal team
had failed to demonstrate his innocence, setting the stage for the new date.
This time around, the case catapulted into the national consciousness with
record numbers of petitions — more than 630,000 — delivered to the board to stay
the execution, and a list of people asking for clemency included former
President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress,
entertainment figures like Cee Lo Green and even some death penalty supporters,
including William S. Sessions, a former F.B.I. director.
September 20, 2011
The New York Times
By KIM SEVERSON
ATLANTA — Troy Davis, whose death row case ignited an
international campaign to save his life, has lost what appeared to be his last
attempt to avoid death by lethal injection on Wednesday.
Rejecting pleas by Mr. Davis’s lawyers that shaky witness testimony and a lack
of physical evidence presented enough doubt about his guilt to spare him death,
the Georgia State Board of Pardons and Paroles ruled on Tuesday morning that Mr.
Davis, 42, should die for killing Mark MacPhail, an off-duty police officer, in
a Savannah parking lot in 1989.
“He has had ample time to prove his innocence, and he is not innocent,” said Mr.
MacPhail’s widow, Joan MacPhail-Harris. “We have laws in this land so that there
is not chaos. We are not killing Troy because we want to. We’re trying to
execute him because he was punished.”
She, Mr. MacPhail’s mother and the couple’s two grown children were tearful
after the hearing on Monday, pleading exhaustion.
“I’m not for blood. I’m for justice,” said his mother, Anneliese MacPhail. “We
have been through hell, my family.”
The family of Mr. Davis, who had gathered in an Atlanta hotel to await the
decision, learned that he would be put to death from members of his legal team
and Amnesty International.
“I just left the room, it’s very quiet up there,” said Wende Gozan Brown, a
spokeswoman for Amnesty International, who was on her way to visit Mr. Davis in
prison. Whether he will be able to offer a statement was in question. Prison
officials were tightly controlling his access to visitors.
“They are definitely going to listen to everything he says or does,” she said.
A vigil is planned for Tuesday night on the steps of the Georgia State capital.
The case has been a slow and convoluted exercise in legal maneuvering and death
penalty politics. It has included last-minute stays and a rare Supreme Court
decision.
Because Georgia’s governor has no power to stay executions, the parole board was
the last hope for Mr. Davis.
“I don’t see any avenues to the Supreme Court,” said Anne S. Emanuel, a law
professor at Georgia State University who has formally reviewed the case and
found it too weak to merit the death penalty. “There’s nothing else apparent.”
The last-ditch effort to spare Mr. Davis’s life produced a widespread reaction
among people who believe there was too much doubt to execute him.
More than 630,000 letters asking the board to stay the execution were delivered
by Amnesty International last Friday. The list of people asking that the Georgia
parole board offer clemency included President Jimmy Carter, Archbishop Desmond
Tutu, 51 members of Congress, entertainment figures like Cee Lo Green and death
penalty supporters, including William S. Sessions, a former F.B.I. director.
On Friday, more than 3,000 people gathered at the Ebenezer Baptist Church, in
the heart of Martin Luther King Jr.’s former neighborhood, for a prayer vigil
and protest.
This is the fourth time Mr. Davis has faced the death penalty. The state parole
board granted him a stay in 2007 as he was preparing for his final hours, saying
the execution should not proceed unless its members “are convinced that there is
no doubt as to the guilt of the accused.” The board has since added three new
members.
In 2008, his execution was about 90 minutes away when the Supreme Court stepped
in. Although the court kept Mr. Davis from execution, it later declined to hear
the case.
In the week before his third execution date, the 11th Circuit Court of Appeals
issued a stay of execution to consider arguments from his lawyer that new
testimony that could prove his innocence had not been considered.
The appeals court denied the claim but allowed time for Mr. Davis to take his
argument directly to the Supreme Court, which ordered a federal court to once
again examine new testimony.
But in June, a federal district court judge in Savannah said his legal team had
failed to demonstrate his innocence, setting the stage for this latest execution
date.
Lawyers for Mr. Davis on Monday laid out a case of mistaken identity.
Information was presented from several witnesses who said they had been
pressured by the police and changed their testimony, although others stood by
their original testimony.
Another witness implicated the man who first identified Mr. Davis as another
gunman to the police.
Throughout the ups and downs of the case, members of both families have attended
all the legal proceedings.
Mr. Davis’s sister, Martina Correia, a former soldier who made saving him her
life’s work and who is weak from fighting breast cancer, was in the hearing
Monday.
So were members of Mr. MacPhail’s family, who testified toward the end of the
hearing.
“A future was taken from me,” said his daughter, Madison, 24. “Not just my
father. The future we would have had together as a family.”
She said she would be at the execution, along with her brother, Mark, 22.
Anneliese MacPhail will not. But she welcomes it.
“It sounds terrible but I can close this book,” she said. “I can finally get
peace. I can never get closure, but I can get peace.”
September
16, 2011
The New York Times
By KIM SEVERSON
ATLANTA —
As Troy Davis faces his fourth execution date, the effort to save him has come
to rival the most celebrated death row campaigns in recent history.
On Monday, the Georgia State Board of Pardons and Paroles will give Mr. Davis
what is by all accounts his last chance to avoid death by lethal injection,
scheduled for Wednesday.
Whether history will ultimately judge Mr. Davis guilty or innocent, cultural and
legal observers will be left to examine why Mr. Davis, convicted of killing a
Savannah police officer, Mark MacPhail, 22 years ago, has been catapulted to the
forefront of the national conversation when most of the 3,251 other people on
death row in the United States have not.
The answer, experts say, can be found in an amalgam of changing death penalty
politics, concerns about cracks in the judicial system, the swift power of
digital political organizing and, simply, a story with a strong narrative that
caught the public’s attention.
“Compelling cases that make us second-guess our justice system have always
struck a chord with the American public,” said Benjamin T. Jealous, president of
the N.A.A.C.P. “Some are simply more compelling in that they seem to tap deeply
into the psyche of this country. A case like this suggests that our justice
system is flawed.”
Like others involved in the case, he credits Mr. Davis’s sister, Martina
Correia, a media-friendly former soldier who has long argued that the police
simply got the wrong man, with keeping the story alive.
And the story has been compelling. A parade of witnesses have recanted since the
original trial, and new testimony suggests the prosecution’s main witness might
be the killer.
There are racial undertones — Mr. Davis is black and the victim was white — and
legal cliffhangers, including a stay in 2008 that came with less than 90 minutes
to spare and a Hail Mary pass in 2009 that resulted in a rare Supreme Court
decision.
Altogether, it had the makings of a story that has grabbed many armchair lawyers
and even the most casual opponent of the death penalty.
The list of people asking that the Georgia parole board offer clemency has grown
from the predictable (Jimmy Carter, Archbishop Desmond Tutu, the Indigo Girls)
to the surprising, including 51 members of Congress, entertainment heavyweights
like Cee Lo Green and death penalty supporters including William S. Sessions, a
former F.B.I. director, and Bob Barr, a former member of Congress, and some
leaders in the Southern Baptist church. (Unlike some other states, in Georgia
the governor cannot commute a death sentence; only the parole board can.)
Propelled by a recent flood of digital media including Twitter traffic and
online petition requests, the case has become fodder for discussion in
fashionable Atlanta bistros, Harlem street corners and anywhere living room
sleuths gather in their search for another Casey Anthony trial to dissect.
On Friday, about 1,000 people marched to Ebenezer Baptist Church here for a
prayer vigil, one of hundreds of rallies being organized by Amnesty
International around the world.
The facts of the case itself captured the attention of Nancie McDermott, a North
Carolina cookbook author who usually spends her time in the kitchen but who took
up the cause with a passion once she started reading about it on liberal Web
sites.
“I think if my brother or son or dear friend from college were about to be put
to death, and there was no physical evidence, and seven of nine witnesses had
recanted and testified to coercion in that original testimony, would I shrug and
say, ‘The jury made its decision?’ ” she wrote in an e-mail. “I just want
people, particularly all the churchgoing people like me, to look me in the eye
and tell me, just once, that this is justice.”
There are some larger political themes weaving through the case.
As executions becomes less common and sentences for executions decline —
dropping to about 100 a year from three times that in the 1990s — the focus on
execution as a means of punishment and a marker of the nation’s cultural and
political divide becomes sharper, legal analysts said.
That divide results in a culture that in the same week can generate hundreds of
thousands of letters of support for Troy Davis and, conversely, bring a cheering
round of applause from the audience at a Republican presidential debate when
Gov. Rick Perry of Texas was asked about the 234 executions in his state during
his term of office.
“We’ve gotten to a critical point in the death penalty in this country,” said
Ferrel Guillory, a professor of journalism and mass communication at the
University of North Carolina. “These cases are being phased out but at the same
time they don’t make the front page anymore, so when one comes along with a
strong narrative and a good advocate, it gets our attention.”
Matthew Poncelet, a Louisiana convict, had Sister Helen Prejean, whose story of
her work with him in the final phase of his life brought “dead man walking” into
popular lexicon after Hollywood released a film version of the case in 1995.
Mumia Abu-Jamal, the former journalist and Black Panther who was convicted of
shooting a white Philadelphia police officer in 1981, rode the power of his own
charisma. His case became so popular globally that a road in a Parisian suburb
bears his name.
Mr. Davis’s case not only offers a good narrative with strong characters people
can relate to — his father was a law enforcement officer, his mother was a
churchgoer, his sister is fighting both cancer and for her brother’s innocence —
but has also benefited from an explosion in social media.
“Back in 2007, nobody outside of Savannah knew who Troy Davis was,” said Laura
Moye, director of Amnesty International U.S.A.’s Death Penalty Abolition
Campaign. “Now it’s safe to say over a million people do.”
For proof, she offers the 633,000 petitions she and others delivered to the
parole board in an elaborate media event on Friday. About 200,000 of them were
electronic signatures gathered by Change.org in less than a week.
“It’s a new era of activism,” she said.
Online organizing drew Anderia Bishop, 37, of Atlanta, to the case last week.
She learned about Mr. Davis through an e-mail from ColorOfChange.org, a black
political organization.
The fact that there was very little physical evidence and no DNA and a case
built largely on witnesses who changed their story got her attention.
“I thought, literally, it could be me, and that’s something a lot of people who
are casually watching this case think,” she said. “There are just too many
questions.”
But public pressure and intense media attention can cut both ways, said Stephen
Bright, president of the Southern Center for Human Rights and a longtime capital
defense lawyer.
“It certainly heightens the attention a case gets, but there also can be some
defensiveness,” he said. “There has historically been that worry that people
from out of state will come in and not understand what really happened.”
The difference, he said, is that in today’s information-rich age, people around
the world actually do know most of the facts in the case.
“It tells the State of Georgia that the whole world is watching,” he said.
September 16, 2011
The New York Times
By MANNY FERNANDEZ
HOUSTON — In May 1997, a psychologist took the stand in a
courtroom here during the sentencing hearing of Duane E. Buck, a black man found
guilty of killing his former girlfriend and her friend.
The psychologist, Walter Quijano, had been called by the defense, and he
testified that he did not believe Mr. Buck would be dangerous in the future. But
on cross-examination, the prosecutor asked Dr. Quijano more detailed questions
about the factors used to determine whether Mr. Buck might be a danger later in
life.
“You have determined that the sex factor, that a male is more violent than a
female because that’s just the way it is, and that the race factor, black,
increases the future dangerousness for various complicated reasons,” the
prosecutor asked Dr. Quijano. “Is that correct?”
“Yes,” the psychologist replied.
That statement, and how it was handled by the Harris County District Attorney’s
Office, helped spare Mr. Buck from the death chamber on Thursday, and has become
the center of a case that has raised questions about the role of race in the
Texas criminal justice system at a time when Gov. Rick Perry’s support of the
death penalty has become a factor in his campaign for the Republican
presidential nomination.
Mr. Buck, 48, had been scheduled to be executed on Thursday evening, but the
Supreme Court intervened, granting a temporary stay of execution pending a
decision about whether it will review an appeal of his case. Mr. Buck’s lawyers
had argued that his death sentence was based, at least in part, on his race, and
that in carrying out his execution, the state would violate the Equal Protection
Clause of the Constitution, which prohibits discrimination by state governments.
At Mr. Buck’s sentencing hearing in 1997, the Harris County prosecutor told the
jury in her closing argument to rely on the psychologist’s expert testimony,
telling the jury: “You heard from Dr. Quijano, who had a lot of experience in
the Texas Department of Corrections, who told you that there was a probability
that the man would commit future acts of violence.”
In 2000, while the case was on appeal, the state attorney general at the time,
John Cornyn, made an unusual announcement, conceding error in Mr. Buck’s case
and six others in which the government had relied on race as a factor in
sentencing. Mr. Cornyn, now a United States senator, stated that if the lawyers
for the defendants in those cases challenged the government’s reliance on race
at sentencing, he would not object. All of those cases centered on testimony
from Dr. Quijano, a former chief psychologist for the state prison system.
“The people of Texas want and deserve a system that affords the same fairness to
everyone,” Mr. Cornyn said then.
Of the defendants, all of whom were on death row, Mr. Buck was the only one who
had not been granted a new sentencing hearing. The others were later
re-sentenced to death.
The efforts to stop Mr. Buck’s execution drew widespread support. Linda Geffin,
a former assistant district attorney in Harris County who helped prosecute Mr.
Buck, wrote a letter to state officials, including Mr. Perry, asking them to
halt the execution, writing that it was regrettable that “any race-based
considerations were placed before Mr. Buck’s jury.” In addition, a survivor of
Mr. Buck’s attack, Phyllis Taylor, had urged the Texas Board of Pardons and
Paroles and the governor to halt the execution.
Ms. Taylor was a friend of Mr. Buck’s former girlfriend, Debra Gardner. Mr.
Buck’s lawyers have not denied his guilt in the case: In July 1995, about a week
after they had ended their relationship, Mr. Buck barged into Ms. Gardner’s
house in Houston with a rifle and a shotgun and opened fire, killing Ms. Gardner
and one of her friends, Kenneth Butler, while injuring Ms. Taylor. Ms. Gardner’s
two children saw Mr. Buck shoot her.
Sixteen years later, Ms. Taylor met with a lawyer in Mr. Perry’s office and a
member of the state parole board in recent days, urging them to grant clemency.
The parole board, however, later recommended against clemency.
In papers filed with the Supreme Court on Thursday, lawyers for the Texas
attorney general, Greg Abbott, wrote that Mr. Buck’s constitutional rights were
not violated and that Mr. Abbott had, in 2005, determined that Mr. Buck’s case
was not similar to the other cases involving Dr. Quijano’s testimony. “Buck
called Quijano, and Buck opened the door to this issue,” the lawyers wrote. “The
prosecutor’s cross-examination on this topic merely asked Quijano to restate
what he had said on direct. But neither Quijano nor the state suggested to the
jury that they rely on race as a factor in deciding that Buck would be a future
danger.”
Mr. Perry, who has the power to grant a 30-day stay of execution, was
campaigning in Iowa on Thursday. He has rarely granted clemency in
capital-punishment cases, overseeing more than 230 executions since he took
office in December 2000. At a debate last week among the Republican presidential
candidates in California, Mr. Perry was asked if he had lost sleep over his
record of executions, and he replied, “No, sir, I’ve never struggled with that
at all.”
Officials with the state prison agency, the Department of Criminal Justice, were
informed at 7:40 p.m. Thursday that the Supreme Court had granted a stay of
execution. Mr. Buck had already eaten his last meal of fried chicken, fried
fish, salad, jalapeno peppers, apples and an iced tea. Under state law,
executions can be carried out in a six-hour window from 6 p.m. to midnight. One
of Mr. Buck’s lawyers, Kate Black, with the Texas Defender Service, called him
to tell him the news.
Jason Clark, a spokesman for the prison agency, said of Mr. Buck: “He was
praying when I walked over. He stopped praying and said, ‘Praise the Lord
Jesus.’ ”
16 September 2011
Updated: At about 7:40 p.m.
the U.S. Supreme Court stayed the scheduled execution of Duane Edward Buck.
The Texas Tribune
by Brandi Grissom
Buck was praying when Texas Department of Criminal Justice officials informed
him of the news, said spokesman Jason Clark. "He said, 'God is worthy to be
praised. God's mercy triumphs over judgment, and I feel good,'" Clark said.
Buck had already had his last meal of fried chicken, salad, French fries, fried
fish, jalapeño peppers and apples before state officials received the decision
from the high court, Clark said. Buck is now being transferred back to death row
at the Polunsky Unit in Livingston.
Original story:
Lawyers for Buck sent Gov. Rick Perry a letter Wednesday night seeking a 30-day
reprieve for the death row inmate scheduled to be executed this evening. State
Sen. Rodney Ellis, D-Houston, former prosecutor Linda Geffin and Phyllis Taylor,
one of Buck's victims, joined in the request.
The Tribune thanks our Supporting Sponsors
"No other capital case has ever come before your desk more demanding of your
immediate intervention," the lawyers wrote.
Buck was sentenced to death in 1997 for the shooting deaths of Debra Gardner and
Kenneth Butler. During a drug-induced shooting spree, Buck also shot Taylor, a
woman with whom he grew up, but she survived the wound to her chest. Last week,
Taylor called on Perry and the Board of Pardons and Paroles to halt Buck's
execution. Linda Geffin, who was a prosecutor at the original trial, also urged
clemency. The board denied the request, though.
Now, Buck's hopes for halting the execution scheduled for tonight lie with the
U.S. Supreme Court and the governor. The governor has authority to grant a
one-time, 30-day reprieve from execution. Perry has only granted such a reprieve
four times since he took office Dec. 21, 2000. But, because Perry is out of the
state campaigning for president, the final reprieve decision today will come
from Lt. Gov. David Dewhurst, who acts as governor in Perry's absence. Spokesman
Mike Walz said Dewhurst would not comment on the case until all of Buck's court
options were exhausted.
Buck's guilt is not in doubt, but his lawyers and supporters argue he deserves a
new sentencting trial because race was a factor during his original sentencing
in 1997. Dr. Walter Quijano, a psychologist the defense called as a witness,
said that Buck would not likely be a future danger to society. But during
cross-examination, prosecutors asked Quijano whether he believed the fact that
Buck was black increased his potential threat to society. Quijano said yes. The
jury sentenced Buck to death.
Then-Attorney General John Cornyn in 2000 admitted that Quijano's testimony
regarding race amounted to a constitutional error in seven cases, including
Buck's. He agreed not to oppose requests for new sentencing trials. The other
six defendants received new trials. "The people of Texas want and deserve a
system that affords the same fairness to everyone," Cornyn said at the time.
All of the defendants who received retrials were resentenced to death, and one
has been executed. Buck's lawyer, Kate Black, said he was not allowed a new
trial because his case was in state court at the time of Cornyn's error
admission, which meant that the district attorney, not the attorney general, had
jurisdiction over the case. By the time Buck's case reached the federal court,
Black said, "the AG chose inexplicably not to follow through on that promise."
In Buck's case, the U.S. Fifth Circuit Court of Appeals in 2009 denied his
request on procedural grounds, but they also wrote that his appeal would likely
fail on the merits because it was Buck's own attorneys who introduced Quijano as
a witness. "Buck cannot now claim surprise at the opinions that Dr. Quijano
expressed," the New Orleans court opined.
Buck is scheduled to be executed at 6 p.m. tonight. His execution would be 236th
during Perry's gubernatorial tenure, and it is one of four executions scheduled
for this month.
In a press release, Sen. Ellis called on Dewhurst and Perry to allow the case to
be reviewed. "Mr. Buck may have committed a horrible crime, and may deserve to
be punished, but in cases involving the ultimate penalty, I believe we must
guarantee a fair trial untainted by racially prejudicial testimony," Ellis said.
Racism in the application of capital punishment has been well documented in the
civilian justice system since the Supreme Court reinstated the penalty in 1976.
Now comes evidence that racial disparity is even greater in death penalty cases
in the military system.
Minority service members are more than twice as likely as whites — after
accounting for the crimes’ circumstances and the victims’ race — to be sentenced
to death, according to a forthcoming study co-written by David Baldus, an
eminent death-penalty scholar, who died in June.
The analysis is so disturbing because the military has made sustained, often
successful efforts to rid its ranks of discrimination. But even with this
record, its failure to apply the death penalty fairly is more proof that capital
punishment cannot be free of racism’s taint. It is capricious, barbaric and
discriminatory, and should be abolished.
The number of capital cases in the military system is small: of 105 cases in
which the death penalty might have been applied between 1984 — when the military
revamped its death penalty process — and 2005, 15 defendants were sentenced to
death. (Another capital case in 2010 was not included in the study.) Eight have
since been removed from death row because of various legal errors, and two were
granted clemency.
In its analysis, the new report found a significant risk that minority service
members would be given the death penalty in cases in which there was at least
one white victim, while a similarly situated white defendant would more likely
be spared.
This connection between race and the death penalty is notably different from the
results found in state criminal courts. A landmark study of state cases by Mr.
Baldus and others in the 1980s showed that a death sentence often hinged not on
the race of the defendant, but on the race of the victim. People accused of
killing white victims were four times as likely to be sentenced to death as
those accused of killing black victims.
Clearly, the military has not succeeded in keeping racial bias out of its
judicial process. The broad discretion of judges and jurors in military
tribunals and the system’s lack of transparency may make it harder to root out
discrimination.
Still, the number of military capital cases has dropped to roughly one every two
years since life without parole became a military option in 1997, far fewer than
in the previous decade. Military courts now generally avoid seeking the death
penalty when the crime is no different from crimes handled in civilian courts
except that the defendant is in the military.
Almost all the capital cases involve victims who were American troops on duty or
otherwise significant to the military. The reversal rate on these cases has been
shockingly high: eight out of 10 death sentences have been overturned, compared
with a reversal rate of 3 to 8 percent in military non-capital cases. An
important reason is inadequate counsel: the military often assigns inexperienced
military lawyers incapable of mounting a strong defense.
The last military execution was in 1961. The de facto moratorium has not made
the country or the military less secure. The evidence of persistent racial bias
is further evidence that it is time for the military system to abolish the death
penalty.
David R. Dow attacks capital punishment for its statistical bias against
minorities (“Death
Penalty, Still Racist and Arbitrary,” July 9). Death penalty opponents have
brought arbitrariness upon themselves.
In 1972 the Supreme Court held that it was unconstitutional to allow juries to
decide arbitrarily whether a murderer would live or die. Reacting to this
decision, a number of states enacted laws requiring the death penalty for all
first-degree murders. These laws assured that a first-degree murderer would die
regardless of the race of the victim or defendant. They properly based
punishment on the crime instead of the criminal.
A closely divided Supreme Court, with the hearty concurrence of those who now
complain about the arbitrary nature of capital punishment, struck down these
laws, making discretion an inescapable part of the process. The way to address
the inequities claimed by Mr. Dow is to allow the automatic death penalty for
first-degree murder.
JAMES A. DUEHOLM
Washington, July 9, 2011
To the Editor:
David R. Dow correctly points out that, as a host of studies demonstrate, judges
and juries exhibit a prejudice that sees white lives as more valuable than black
lives. Mr. Dow is also correct that this results in a prejudice against black
murderers of white victims.
However, this prejudice, perhaps surprisingly, implies that, nationally, there
is death penalty discrimination not against blacks, but against whites.
This is why: The overwhelming percentage of victims of black murderers are
black, and the overwhelming percentage of victims of white murderers are white.
As a result of the prejudice that views white victims’ lives as more valuable,
white murderers are more often (on a percentage basis) given the death penalty,
because they more often murder whites. National statistics bear this out.
STEVEN GOLDBERG
New York, July 9, 2011
The writer is professor emeritus of City College, CUNY.
To the Editor:
It is hard to dispute the fact that the death penalty is indeed racist and
arbitrary, as David R. Dow states in his Op-Ed article. It is also hard to
dispute the fact that it drains state coffers far more than the alternative of
life without parole. Add to that the rising number of exonerations — people
wrongfully convicted and sentenced to death.
Yet 34 states and some Supreme Court justices cling to capital punishment. Most
countries in the world no longer use this form of punishment. Why are we so
reluctant to let go of an unfair and costly government program?
NANCY OLIVEIRA
San Francisco, July 9, 2011
The writer is former chairwoman of the San Francisco chapter of Death Penalty
Focus.
LAST week was the 35th anniversary of the return of the American death penalty.
It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of
Iowa law professor, David C. Baldus (who died last month), along with two
colleagues, published a study examining more than 2,000 homicides that took
place in Georgia beginning in 1972. They found that black defendants were 1.7
times more likely to receive the death penalty than white defendants and that
murderers of white victims were 4.3 times more likely to be sentenced to death
than those who killed blacks.
What became known as the Baldus study was the centerpiece of the Supreme Court’s
1987 decision in McCleskey v. Kemp. That case involved a black man, Warren
McCleskey, who was sentenced to die for murdering a white Atlanta police
officer. Mr. McCleskey argued that the Baldus study established that his death
sentence was tainted by racial bias. In a 5-to-4 decision, the Supreme Court
ruled that general patterns of discrimination do not prove that racial
discrimination operated in particular cases.
Of course, the court had to say that, or America’s capital justice system would
have screeched to a halt. Georgia is not special. Nationwide, blacks and whites
are victims of homicide in roughly equal numbers, yet 80 percent of those
executed had murdered white people. Over the past three decades, the Baldus
study has been replicated in about a dozen other jurisdictions, and they all
reflect the same basic racial bias. By insisting on direct evidence of racial
discrimination, the court in McCleskey essentially made the fact of pervasive
racism legally irrelevant, because prosecutors rarely write e-mails announcing
they are seeking death in a given case because the murderer was black (or
because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of Harris
County, Chuck Rosenthal, resigned after news emerged that he had sent and
received racist e-mails. His office had sought the death penalty in 25 cases;
his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite
defendant.
Since 1976, Texas has carried out 470 executions (well more than a third of the
national total of 1,257). You can count on one hand the number of those
executions that involved a white murderer and a black victim and you do not need
to use your thumb, ring finger, index finger or pinkie.
Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at
age 16 beat an elderly couple while robbing their home. The 79-year-old husband
died of his injuries. Mr. Taylor was sentenced to life in prison; there he
joined the Aryan Brotherhood, a white gang, and, four years into his sentence,
murdered a black inmate and was sentenced to death. When Mr. Taylor was
executed, it was reported that he was the second white person in Texas executed
for killing a black person. Actually, he should be counted as the first. The
other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was
white.
The facts surrounding Lee Taylor’s execution are cause for further shame. John
Balentine, a black inmate, was scheduled to die in Texas the day before Lee
Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed
appellate lawyer had botched his case, and that he should have an opportunity to
raise issues the lawyer had neglected. Less than an hour before Mr. Balentine
was to die, the Supreme Court issued a stay.
Lee Taylor’s lawyers watched the Balentine case closely; their client too had
received scandalously bad representation, and, they filed a petition virtually
identical to the one in the Balentine case. But by a vote of 5-to-4, the
justices permitted the Taylor execution to proceed. If there were differences
between the Balentine and Taylor cases, they were far too minor to form the
boundary between life and death. But trivial distinctions are commonplace in
death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in
the McCleskey majority, retired from the court in 1987. Following his retirement
he said he had voted the wrong way. If Justice Powell had changed his mind
sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be
alive.
And because of a vote from a single Supreme Court justice, John Balentine lives
while Lee Taylor died. When capital punishment was briefly struck down, in 1972,
Justice Potter Stewart said the death penalty was arbitrary, like being struck
by lightning.
It still is, and it’s the justices themselves who keep throwing the bolts.
David R. Dow, a professor at the University of Houston Law
Center, is the author, most recently, of a memoir, “The Autobiography of an
Execution.”
This article has been revised to reflect the following
correction:
Correction: July 14, 2011
An Op-Ed article on Saturday about the death penalty misstated the year Justice
Lewis F. Powell Jr. retired from the Supreme Court. It was 1987, not 1991. To
have made a difference in the case of Warren McCleskey, who was executed in
1991, Justice Powell would have had to change his mind in 1987 (not “a year
sooner” than 1991, as the article said), when he was in the 5-to-4 majority that
said Mr. McCleskey could be executed.
David C. Baldus, 75, Dies; Studied Race and the Law
June 14, 2011
The New York Times
By ADAM LIPTAK
David C. Baldus, whose pioneering research on race and the death penalty came
within a vote of persuading the Supreme Court to make fundamental changes in the
capital justice system, died on Monday at his home in Iowa City. He was 75.
The cause was complications of colon cancer, his wife, Joyce C. Carman, said.
Professor Baldus’s work was at the center of a 1987 Supreme Court decision,
McCleskey v. Kemp, which ruled that even solid statistical evidence of racial
disparities in the administration of the death penalty did not offend the
Constitution. The 5-to-4 ruling closed off what had seemed to opponents of the
death penalty a promising line of attack.
The Supreme Court had reinstated the death penalty in 1976 in Gregg v. Georgia
after a four-year moratorium. Georgia and other states had in the meantime
enacted provisions meant to address discrimination in capital punishment.
“It seemed to us that Gregg had indulged the assumption that race had been
flushed out of the system,” said John C. Boger, who argued the McCleskey case
for the defendant and who is now dean of the University of North Carolina School
of Law.
Professor Baldus, a longtime faculty member at the University of Iowa College of
Law, and two colleagues, Charles Pulaski and George Woodworth, set out to test
that assumption. Their study examined more than 2,000 murders in Georgia,
controlling for some 230 variables.
The study’s findings have often been misunderstood. They did not show that
blacks were significantly more likely to be sentenced to death than whites. What
the study found was that people accused of killing white victims were four times
as likely to be sentenced to death as those accused of killing black victims. In
other words, a death sentence often hinged not on the race of the defendant but
on the race of the victim.
Professor Baldus’s work was meticulous, said Anthony G. Amsterdam, a law
professor at New York University and an authority on the death penalty. “Dave
had a unique genius for digging into masses of messy factual information and
discovering crucial human forces at work behind the purportedly impersonal
administration of criminal law,” Professor Amsterdam said.
The study was presented to the Supreme Court by lawyers for Warren McCleskey, a
black man sentenced to die for killing a white police officer. “David was really
the whole foundation of the case,” Dean Boger said.
But Justice Lewis F. Powell Jr., writing for the majority, said individual
criminal cases cannot be decided on the basis of social science research,
however sound.
“In light of the safeguards designed to minimize racial bias in the process, the
fundamental value of jury trial in our criminal justice system, and the benefits
that discretion provides to criminal defendants,” Justice Powell wrote, “we hold
that the Baldus study does not demonstrate a constitutionally significant risk
of racial bias affecting the Georgia capital sentencing process.”
In 1991, after he retired, Justice Powell was asked whether there was any vote
he would have liked to change.
“Yes,” he told his biographer, John C. Jeffries Jr. “McCleskey v. Kemp.”
Justice John Paul Stevens, who retired last year and who was one of the
dissenters, wrote about the case in December in The New York Review of Books.
“That the murder of black victims is treated as less culpable than the murder of
white victims provides a haunting reminder of once-prevalent Southern
lynchings,” Justice Stevens wrote.
David Christopher Baldus was born in Wheeling, W.Va., on June 23, 1935. He was
educated at Dartmouth College, the University of Pittsburgh and Yale Law School.
He joined the University of Iowa College of Law faculty in 1969.
Professor Baldus wrote two books, “Statistical Proof of Discrimination” and
“Equal Justice and the Death Penalty.”
Professor Baldus’s first marriage ended in divorce. In addition to his wife, he
is survived by a sister, Sue Gittins of Port Charlotte, Fla.; two daughters from
his first marriage, Katherine Baldus and Helen Baldus, both of Brooklyn; and
four stepchildren, Jeffrey Carman of Paducah, Ky., Craig Carman of Iowa City,
and Kate Robinson and Glen Carman, both of Chicago.
In a 1995 speech on what he called “the death penalty dialogue between law and
social science,” Professor Baldus considered what had led the Supreme Court to
allow executions to proceed in the face of his study.
“Perhaps most important, in my estimation,” he said, “is that race-of-victim
discrimination does not raise the same sort of moral concerns as
race-of-defendant discrimination — even though, from a constitutional
standpoint, discrimination on the basis of any racial aspect of the case is
illegitimate.”
April 13, 2011
The New York Times
By JOHN SCHWARTZ
A shortage of one of the three drugs used in most lethal
injections has caused disarray as states pursue a desperate and sometimes
furtive search that might run afoul of federal drug laws.
At the same time, it has given death-penalty opponents fresh arguments for suing
to block executions.
Until recently, states that use the drug, the barbiturate sodium thiopental, got
it from a domestic supplier, Hospira Inc. But that company stopped making the
drug in 2009 because of manufacturing problems and announced this year that it
would stop selling the drug altogether. International pressure on suppliers by
groups opposed to the death penalty has further restricted access to the drug.
States had to find a new source, but importation of sodium thiopental is highly
restricted under federal law.
Recently released documents emerging from lawsuits in many states reveal the
intense communication among prison systems to help one another obtain sodium
thiopental, and what amounts to a legally questionable swap club among prisons
to ensure that each has the drug when it is needed for an execution.
In depositions from Arkansas officials, Wendy Kelley, a deputy director of the
Department of Correction, said she obtained sodium thiopental from a company in
England after hearing about it from corrections officers in Georgia. Her state,
she said, at various times had given the drug to Mississippi, Oklahoma and
Tennessee free of charge, and obtained the drug from Texas — she traveled to
Huntsville herself — and from Tennessee.
“I went wherever they had them,” Ms. Kelley said. “As best as I’m aware, the
agreement my director had with other directors, any time there was an exchange,
was that there would be a payback when needed.”
When Kentucky went searching for execution drugs this year, the state’s
corrections commissioner, LaDonna H. Thompson, wrote in a memo that she had
contacted departments in Georgia, Nebraska, South Dakota and Tennessee. A
Georgia official “referred me to a distributor in Georgia that he thought might
have a supply,” she wrote, adding that she had gotten information on “an
organization in India,” Kayem Pharmaceuticals. (That company halted shipments to
the United States last week under international pressure.)
Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has
urged the Food and Drug Administration and the attorney general, Eric H. Holder
Jr., to block the importation of unapproved execution drugs into the United
States, said the states had been “pretty heedless of the legal lines” regarding
the purchase and importation of powerful drugs like sodium thiopental. It was as
if “because this was death-penalty related, it was somehow exempt from all the
normal rules,” Mr. Berenson said. “As a legal matter that was not true.”
States sometimes took remarkable measures to obtain the drugs, the documents
suggest.
Georgia prison officials were clearly growing anxious last summer as their
supply of sodium thiopental neared expiration and a shipment from England lay
stalled for weeks in Memphis. Customs agents had detained the package pending
inspection by the Food and Drug Administration. By July 6, a corrections
official sent a terse e-mail to a colleague asking, “Any word?”
The response: “We got word but not the ‘good’ word.” The shipment was still held
up. “I continue to track the package several times each day.”
So officials explored a new tactic, the documents show: instead of going through
the usual channels of ordering the drug through a Georgia health care company
and a local pharmacy, might the British company simply send the drug directly to
the department?
The owner of Dream Pharma, a wholesaler run out of the back room of a driving
academy’s offices in London, replied, “I am more than happy to assist.” Matt
Alavi, the owner, also warned that a certain carrier was “very stringent with
U.S. customs.” A Georgia corrections official approved the deal — “Yes. Make it
happen” — with instructions to seek a supply with long expiration dates, and the
drugs were soon on their way to the United States.
This approach may well have broken federal drug laws, said John T. Bentivoglio,
a former associate deputy attorney general, in a February letter to Mr. Holder
on behalf of a Georgia death row prisoner, Andrew Grant DeYoung. The Drug
Enforcement Administration seized Georgia’s drugs last month, and this month
Kentucky and Tennessee turned over theirs as well.
“I think it’s quite reasonable to expect a state criminal justice agency like a
department of corrections to abide by federal law,” Mr. Bentivoglio said in an
interview.
Other documents show close cooperation among the states. A California road trip
that transported sodium thiopental from Arizona to San Quentin emerged in nearly
1,000 pages of documents released by the A.C.L.U. of Northern California late
last year. They showed e-mails from Scott Kernan, under secretary for operations
for California’s Department of Corrections and Rehabilitation, telling aides of
a “secret and important mission,” and warning that it was “very political and
media sensitive.”
Mr. Kernan sent a thank-you note to Charles Flanagan, the deputy director of
Arizona’s Department of Corrections, that read, “You guys in AZ are life
savers,” adding, “by you a beer next time I get that way.”
When Arizona ordered its own shipment in September, documents show, the state
worked closely with Customs and Food and Drug Administration officials to
prevent the kind of delays that plagued Georgia, and made sure that the port of
entry was Phoenix, where its own broker could help. The shipments were labeled
as being for veterinary use, which lawyers for the prisoners argue was intended
to get the drugs lighter regulatory scrutiny.
“Based upon our review of documents released by federal agencies, it appears
that there was a culture of premeditated deception,” said Dale Baich of the
federal public defender’s office in Arizona. “Someone came up with a plan to
bypass the process that would have stopped the drugs at the border.”
Kent E. Cattani, chief counsel for capital litigation in the Arizona attorney
general’s office, called the accusation “absurd,” and cited correspondence going
back as far as December with the Food and Drug Administration explicitly stating
that the drugs were necessary “for carrying out an execution warrant.”
Representatives of the Food and Drug Administration, the Drug Enforcement
Administration and the Department of Justice said agencies’ policies did not
allow comment on pending litigation.
Until the drug shortage, the routine for lethal injections had been a fairly
settled process. States allowed little change for fear of deviating too far from
practices that have been declared constitutional. The three-drug protocol widely
used for a quarter-century involves sodium thiopental or a similar sedative,
pentobarbital, to render the prisoner unconscious. A second drug, pancuronium
bromide, brings on paralysis and a third, potassium chloride, stops the heart.
Supporters of the death penalty criticize the recent challenges as yet another
delaying tactic in a long history of try-anything challenges. Kent S.
Scheidegger, the legal director of the Criminal Justice Legal Foundation in
California, said the conflicts “seem to be accelerating the switch to
pentobarbital,” which is more readily available, but also show vulnerabilities
inherent in lethal injection. He recently called for a return to the gas
chamber, using nontoxic gases that would displace oxygen in the chamber.
Douglas A. Berman of Ohio State University, an expert on sentencing and
punishment, says the recent legal challenges concerning death penalty drugs are
more than a mere inconvenience to the process. “This mess is a speed bump,” he
said, “but one that does raise serious issues about the death penalty.” The
bigger issue beyond what he called the “Keystone Kops” fumbling of state
officials, Professor Berman said, is what the disruption to the process says
about the temperamental nature of what death-penalty abolitionists call the
“machinery of death.”
I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve
been free since 2003, exonerated after evidence covered up by prosecutors
surfaced just weeks before my execution date. Those prosecutors were never
punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won
against them and the district attorney who oversaw my case, ruling that they
were not liable for the failure to turn over that evidence — which included
proof that blood at the robbery scene wasn’t mine.
Because of that, prosecutors are free to do the same thing to someone else
today.
I was arrested in January 1985 in New Orleans. I remember the police coming to
my grandmother’s house — we all knew it was the cops because of how hard they
banged on the door before kicking it in. My grandmother and my mom were there,
along with my little brother and sister, my two sons — John Jr., 4, and Dedric,
6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess
they thought they were coming for a murderer. All the children were scared and
crying. I was 22.
They took me to the homicide division, and played a cassette tape on which a man
I knew named Kevin Freeman accused me of shooting a man. He had also been
arrested as a suspect in the murder. A few weeks earlier he had sold me a ring
and a gun; it turned out that the ring belonged to the victim and the gun was
the murder weapon.
My picture was on the news, and a man called in to report that I looked like
someone who had recently tried to rob his children. Suddenly I was accused of
that crime, too. I was tried for the robbery first. My lawyers never knew there
was blood evidence at the scene, and I was convicted based on the victims’
identification.
After that, my lawyers thought it was best if I didn’t testify at the murder
trial. So I never defended myself, or got to explain that I got the ring and the
gun from Kevin Freeman. And now that I officially had a history of violent crime
because of the robbery conviction, the prosecutors used it to get the death
penalty.
I remember the judge telling the courtroom the number of volts of electricity
they would put into my body. If the first attempt didn’t kill me, he said,
they’d put more volts in.
On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary —
the infamous Angola prison. I was put in a dead man’s cell. His things were
still there; he had been executed only a few days before. That past summer they
had executed eight men at Angola. I received my first execution date right
before I arrived. I would end up knowing 12 men who were executed there.
Over the years, I was given six execution dates, but all of them were delayed
until finally my appeals were exhausted. The seventh — and last — date was set
for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in
from Philadelphia to give me the news. They didn’t want me to hear it from the
prison officials. They said it would take a miracle to avoid this execution. I
told them it was fine — I was innocent, but it was time to give up.
But then I remembered something about May 20. I had just finished reading a
letter from my younger son about how he wanted to go on his senior class trip.
I’d been thinking about how I could find a way to pay for it by selling my
typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr.
is graduating from high school.” I begged them to get it delayed; I knew it
would hurt him.
To make things worse, the next day, when John Jr. was at school, his teacher
read the whole class an article from the newspaper about my execution. She
didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson
about making bad choices. So he learned that his father was going to be killed
from his teacher, reading the newspaper aloud. I panicked. I needed to talk to
him, reassure him.
Amazingly, I got a miracle. The same day that my lawyers visited, an
investigator they had hired to look through the evidence one last time found, on
some forgotten microfiche, a report sent to the prosecutors on the blood type of
the perpetrator of the armed robbery. It didn’t match mine; the report, hidden
for 15 years, had never been turned over to my lawyers. The investigator later
found the names of witnesses and police reports from the murder case that hadn’t
been turned over either.
As a result, the armed robbery conviction was thrown out in 1999, and I was
taken off death row. Then, in 2002, my murder conviction was thrown out. At a
retrial the following year, the jury took only 35 minutes to acquit me.
The prosecutors involved in my two cases, from the office of the Orleans Parish
district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of
evidence. And most of them are still able to practice law today.
Why weren’t they punished for what they did? When the hidden evidence first
surfaced, Mr. Connick announced that his office would hold a grand jury
investigation. But once it became clear how many people had been involved, he
called it off.
In 2005, I sued the prosecutors and the district attorney’s office for what they
did to me. The jurors heard testimony from the special prosecutor who had been
assigned by Mr. Connick’s office to the canceled investigation, who told them,
“We should have indicted these guys, but they didn’t and it was wrong.” The jury
awarded me $14 million in damages — $1 million for every year on death row —
which would have been paid by the district attorney’s office. That jury verdict
is what the Supreme Court has just overturned.
I don’t care about the money. I just want to know why the prosecutors who hid
evidence, sent me to prison for something I didn’t do and nearly had me killed
are not in jail themselves. There were no ethics charges against them, no
criminal charges, no one was fired and now, according to the Supreme Court, no
one can be sued.
Worst of all, I wasn’t the only person they played dirty with. Of the six men
one of my prosecutors got sentenced to death, five eventually had their
convictions reversed because of prosecutorial misconduct. Because we were
sentenced to death, the courts had to appoint us lawyers to fight our appeals. I
was lucky, and got lawyers who went to extraordinary lengths. But there are more
than 4,000 people serving life without parole in Louisiana, almost none of whom
have lawyers after their convictions are final. Someone needs to look at those
cases to see how many others might be innocent.
If a private investigator hired by a generous law firm hadn’t found the blood
evidence, I’d be dead today. No doubt about it.
A crime was definitely committed in this case, but not by me.
John Thompson is the director of Resurrection After Exoneration, a support
group for exonerated inmates.
April 4, 2011
The New York Times
By TIMOTHY WILLIAMS
A former Army recruiter convicted of killing a woman he met in
a Fort Worth bar nine years ago is scheduled to be executed Tuesday, though his
lawyers were seeking a last-minute reprieve on Monday as part of a challenge to
one of the drugs that is to be used to kill him.
The recruiter, Cleve Foster, 47, a veteran of the Persian Gulf war, was
convicted in 2004 of killing Nyanuer Pal, 28, a Sudanese immigrant who was known
as Mary. Mr. Foster’s roommate, who was also convicted in the murder, died in
prison last year.
For Texas, which executes more prisoners than any other state, Mr. Foster’s case
has been complicated by a nationwide shortage of sodium thiopental, one of three
drugs that have typically been used in executions.
The shortage, which has vexed prison authorities in states that permit the death
penalty, led Texas to decide to substitute pentobarbital for sodium thiopental.
Pentobarbital is a sedative that is often used to euthanize animals and to treat
seizures in humans.
At least two states, Oklahoma and Ohio, have executed inmates since December
using pentobarbital after running out of sodium thiopental.
Hospira Inc., which had been the only American manufacturer of sodium
thiopental, announced in January that it would no longer produce the drug in the
United States. The company had planned to resume production at a plant in Italy,
but the Italian authorities said they would not permit the export of the drug if
it might be used for capital punishment.
As recently as January, 34 of the 35 states that allow lethal injections for
executions used sodium thiopental, usually administered as the first of three
drugs that are intended to prevent pain, inhibit muscle movement and then stop
the heart.
Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said
Monday that Mr. Foster’s execution was one of seven scheduled in Texas through
August.
Ms. Lyons said that the state had plenty of sodium thiopental on hand, but that
it reached its expiration date at the end of March.
Maurie Levin, one of Mr. Foster’s lawyers, said Monday that Texas had failed to
adhere to its own administrative rules when it decided to switch to
pentobarbital and that it had not properly notified the public of the change.
Mr. Foster’s lawyers also say the state used an invalid federal permit to buy
pentobarbital.
“Given the frequency of which we carry out this ultimate act, it should be done
in compliance with the law, with transparency and deliberateness and care,” said
Ms. Levin, who also teaches at the University of Texas. “It is experimental, a
drug that is brand new to lethal injections.”
On Monday, the Third Court of Appeals of Texas upheld a lower court ruling that
rejected the defense’s argument, but Mr. Foster’s lawyers said they would take
their challenge to the State Supreme Court.
The story of Mr. Foster, a former sergeant first class, has been full of twists
since he was arrested in the 2002 murder of Ms. Pal.
In January, he was just hours from being executed — he had eaten his final meal
— when the United States Supreme Court stayed the execution to examine an appeal
by his lawyers.
The appeal claimed that Mr. Foster’s trial lawyers had erred by not calling a
blood spatter expert to challenge a police detective’s testimony about Mr.
Foster’s role in the killing. The appeal was ultimately rejected.
Mr. Foster and his roommate, Sheldon Ward, were convicted of murdering Ms. Pal
on the night before Valentine’s Day in 2002. Her nude body was found in a creek
bed in a wooded area the next morning. She had been shot once in the head.
The two had met Ms. Pal at Fat Albert’s bar in Fort Worth. Witnesses said the
three had chatted there, and that as Ms. Pal drove away, the two men followed in
Mr. Foster’s truck.
Mr. Ward, who was 30 when he died of a brain tumor last year, had been one of
the people Mr. Foster helped recruit into the Army. Prosecutors say that Mr.
Ward pulled the trigger, but that Mr. Foster assisted him, including helping him
dump Ms. Pal’s body.
Mr. Foster has said he had taken sleeping pills and was passed out at the time
of Ms. Pal’s death.
In a statement on a Facebook page created for him, Mr. Foster has written: “I
was convicted February 2004, and am now on death row waiting to die for a crime
another man has confessed to. I am not a rich man nor was my family able to hire
the proper lawyers willing to fight and prove my innocence. I do enjoy writing
people, so if you’d like to write please do. I would also like to ask those who
pray, please add me to your prayer list.”
WASHINGTON — The Supreme Court on Tuesday threw out a $14
million jury award in favor of a former death row inmate who was freed after
prosecutorial misconduct came to light.
The 5-to-4 decision divided along the court’s ideological fault line and
prompted the first dissent read from the bench this term, from Justice Ruth
Bader Ginsburg.
The former inmate, John Thompson, had sued Harry F. Connick, a former district
attorney in New Orleans, saying his office had not trained prosecutors to turn
over exculpatory evidence. Prosecutors in the office had failed to give Mr.
Thompson’s lawyers a report showing that blood at a crime scene was not his.
Justice Clarence Thomas, writing for the majority, said that only a pattern of
misconduct would warrant holding Mr. Connick accountable for what happened on
his watch.
Mr. Thompson spent 18 years in prison, 14 of them on death row. “I was delivered
an execution warrant in my cell seven times,” he said in a statement on Tuesday.
“I was only weeks from being executed when my lawyers got the killing stopped.”
The blood evidence would have proved Mr. Thompson innocent of a 1984 armed
robbery. Soon after he was convicted on that charge, prosecutors tried him for
an unrelated murder. After the failure to turn over the blood evidence came to
light in 1999, prosecutors dismissed the armed robbery charges. A state appeals
court later reversed the murder conviction, reasoning that Mr. Thompson’s armed
robbery conviction had dissuaded him from testifying in his own defense in the
murder case. In 2003, Mr. Thompson was retried for the murder and found not
guilty.
“The role of a prosecutor,” Justice Thomas wrote, “is to see that justice is
done.”
“By their own admission,” he continued, “the prosecutors who tried Thompson’s
armed robbery case failed to carry out this responsibility. But the only issue
before us is whether Connick, as the policy maker for the district attorney’s
office, was deliberately indifferent to the need to train the attorneys under
his authority.”
The answer to that question was no, Justice Thomas wrote, given what he said was
an absence of proof concerning a pattern of misconduct.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M.
Kennedy and Samuel A. Alito Jr. joined Justice Thomas’s opinion.
Justice Scalia, in a concurrence joined by Justice Alito, said the misconduct in
the case was the work of a single “miscreant prosecutor,” Gerry Deegan, who
suppressed evidence “he believed to be exculpatory, in an effort to railroad
Thompson.” No amount of training, Justice Scalia wrote, would have countered
such willful wrongdoing.
In her dissent, Justice Ginsburg wrote that “no fewer than five prosecutors”
were complicit in a violation of Mr. Thompson’s constitutional rights. “They
kept from him, year upon year, evidence vital to his defense.”
The prosecutors’ conduct, Justice Ginsburg wrote, “was a foreseeable consequence
of lax training.” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan
joined the dissent.
At a news conference on Tuesday, Leon A. Cannizzaro Jr., the current district
attorney in New Orleans, expressed relief over not having to pay a judgment that
with interest was approaching $20 million, more than his office’s annual budget.
He said his office “should not be held financially responsible for the
intentional, unethical and illegal acts of a rogue prosecutor.”
Mr. Thompson expressed frustration about the Supreme Court’s ruling in his case,
Connick v. Thompson, No. 09-571.
“If I’d spilled hot coffee on myself, I could have sued the person who served me
the coffee,” he said. “But I can’t sue the prosecutors who nearly murdered me.”
Campbell Robertson contributed reporting from New Orleans.
WASHINGTON — The Supreme Court on Monday turned down what were
probably the last set of appeals from Troy Davis, a death row inmate from
Georgia who was convicted of murdering an off-duty police officer and whose case
has attracted international attention.
In 2009, Mr. Davis obtained a new hearing from the Supreme Court by an unusual
route, filing an original writ of habeas corpus with the justices rather than
appealing from a lower-court ruling. The court responded by ordering a federal
trial court in Georgia to consider whether new evidence clearly established Mr.
Davis’s innocence. Several witnesses in the case against him had recanted, and
some had implicated the prosecution’s main witness as the actual killer.
In August, the trial judge, Judge William T. Moore Jr., concluded that Mr.
Davis’s evidence was “largely smoke and mirrors.” On Monday, the justices
refused to review that ruling.
In other action on Monday, the court agreed to decide when schools run by
churches are subject to federal antidiscrimination laws. Courts have recognized
a “ministerial exception” to such laws grounded in religious freedom. That
exception precludes judicial interference with relationships between churches
and some employees with religious duties. But the courts have disagreed about
the scope of the exception.
The case the court agreed to hear, Hosanna-Tabor Church v. Equal Employment
Opportunity Commission, No. 10-553, involves a teacher at a Michigan school run
by a Lutheran church who says she was discriminated against based on a
disability, narcolepsy, in violation of federal law. The teacher, Cheryl Perich,
taught mostly secular subjects but also taught four half-hour religion classes
each week and attended chapel with her class.
A three-judge panel of the federal appeals court in Cincinnati ruled that the
ministerial exception did not apply and that the suit could go forward, saying
that “Perich’s primary duties were secular.” The church, in urging the Supreme
Court to hear the case, said the appeals court had engaged in improper
“religious second-guessing.”
March 5,
2011
The New York Times
By CHRISTIAN LONGO
Salem, Ore.
EIGHT years ago I was sentenced to death for the murders of my wife and three
children. I am guilty. I once thought that I could fool others into believing
this was not true. Failing that, I tried to convince myself that it didn’t
matter. But gradually, the enormity of what I did seeped in; that was followed
by remorse and then a wish to make amends.
I spend 22 hours a day locked in a 6 foot by 8 foot box on Oregon’s death row.
There is no way to atone for my crimes, but I believe that a profound benefit to
society can come from my circumstances. I have asked to end my remaining
appeals, and then donate my organs after my execution to those who need them.
But my request has been rejected by the prison authorities.
According to the United Network for Organ Sharing, there are more than 110,000
Americans on organ waiting lists. Around 19 of them die each day. There are more
than 3,000 prisoners on death row in the United States, and just one inmate
could save up to eight lives by donating a healthy heart, lungs, kidneys, liver
and other transplantable tissues.
There is no law barring inmates condemned to death in the United States from
donating their organs, but I haven’t found any prisons that allow it. The main
explanation is that Oregon and most other states use a sequence of three drugs
for lethal injections that damages the organs. But Ohio and Washington use a
larger dose of just one drug, a fast-acting barbiturate that doesn’t destroy
organs. If states would switch to a one-drug regimen, inmates’ organs could be
saved.
Another common concern is that the organs of prisoners may be tainted by
infections, H.I.V. or hepatitis. Though the prison population does have a higher
prevalence of such diseases than do non-prisoners, thorough testing can easily
determine whether a prisoner’s organs are healthy. These tests would be more
reliable than many given to, say, a victim of a car crash who had signed up to
be a donor; in the rush to transplant organs after an accident, there is less
time for a full risk analysis.
There are also fears about security — that, for example, prisoners will
volunteer to donate organs as part of an elaborate escape scheme. But prisoners
around the country make hospital trips for medical reasons every day. And in any
case, executions have to take place on prison grounds, so the organ removal
would take place there as well.
Aside from these logistical and health concerns, prisons have a moral reason for
their reluctance to allow inmates to donate. America has a shameful history of
using prisoners for medical experiments. In Oregon, for example, from 1963 to
1973, many inmates were paid to “volunteer” for research into the effects of
radiation on testicular cells. Some ethicists believe that opening the door to
voluntary donations would also open the door to abuse. And others argue that
prisoners are simply unable to make a truly voluntary consent.
But when a prisoner initiates a request to donate with absolutely no enticements
or pressure to do so, and if the inmate receives the same counseling afforded
every prospective donor, there is no question in my mind that valid
organ-donation consent can be given.
I am not the only condemned prisoner who wants the right to donate his organs. I
have discussed this issue with almost every one of the 35 men on Oregon’s death
row, and nearly half of them expressed a wish to have the option of donating
should their appeals run out.
I understand the public’s apprehension. And I know that it could look as if what
I really want are extra privileges or a reduction in my sentence. After all, in
a rare and well-publicized case last December, Gov. Haley Barbour of Mississippi
released two sisters who had been sentenced to life in prison so that one could
donate a kidney to the other. But I don’t expect to leave this prison alive. I
am seeking nothing but the right to determine what happens to my body once the
state has carried out its sentence.
If I donated all of my organs today, I could clear nearly 1 percent of my
state’s organ waiting list. I am 37 years old and healthy; throwing my organs
away after I am executed is nothing but a waste.
And yet the prison authority’s response to my latest appeal to donate was this:
“The interests of the public and condemned inmates are best served by denying
the petition.”
Many in the public, most inmates, and especially those who are dying for lack of
a healthy organ, would certainly disagree.
Christian
Longo, a prisoner at Oregon State Penitentiary, is the founder of the
organization Gifts of Anatomical Value From Everyone.
February
22, 2011
The New York Times
Filed at 10:51 a.m. EST
By THE ASSOCIATED PRESS
LOUISVILLE,
Ky. (AP) — Kentucky has acquired a key drug used in lethal injections from a
Georgia company, but can't schedule any executions because of a judge's order in
a single case.
Kentucky Justice and Public Safety Cabinet spokeswoman Jennifer Brislin told The
Associated Press on Tuesday that 18 grams of sodium thiopental arrived at the
Kentucky State Penitentiary in Eddyville last week.
Brislin said the drug's packing says it was made by Sandoz GmbH, a European
generics company. It expires in May 2014.
The drug, one of three used in a lethal injection, has been in short supply
since the sole maker of it in the United States, Hospira Inc. of Lake Forest,
Ill. halted production.
The Kentucky Supreme Court is reviewing a judge's order in a case regarding the
state's lethal injection procedures and has halted all executions in the
interim.
January 21,
2011
The New York Times
By ERIK ECKHOLM and KATIE ZEZIMA
The sole
American manufacturer of an anesthetic widely used in lethal injections said
Friday that it would no longer produce the drug, a move likely to delay more
executions and force states to adopt new drug combinations.
The manufacturer, Hospira Inc., of Lake Forest, Ill., had originally planned to
resume production of the drug, sodium thiopental, this winter at a plant in
Italy, giving state corrections departments hope that the scarcity that began
last fall would ease.
But the Italian authorities said they would not permit export of the drug if it
might be used for capital punishment. Hospira said in a statement Friday that
its aim was to serve medical customers, but that “we could not prevent the drug
from being diverted to departments of corrections” and the company did not want
to expose itself to liability in Italy.
Hospira does not have domestic facilities that can make sodium thiopental, said
Daniel Rosenberg, a spokesman, and has decided to “exit the market.” No other
American companies manufacture the drug, which has largely been supplanted by
alternatives in hospitals but is used by 34 of the 35 states that use lethal
injection to carry out the death penalty. An average of 55 executions have taken
place annually over the last 10 years, with 46 last year and 52 in 2009,
virtually all of them by lethal injection.
During what had been described as a temporary halt to production last year,
scarcity of sodium thiopental led to delays in scheduled executions in at least
two states, California and Oklahoma.
The extent to which execution schedules will be further disrupted by the drug
shortage is not yet clear, but it could be considerable. In many states,
adopting a new protocol for lethal injections requires formal proposals, public
comment and often challenges in court — a process that can take months or more,
said Richard Dieter, executive director of the Death Penalty Information Center.
But in others, switching drugs might be done more quickly, by administrative
fiat.
Lethal injections commonly involve a sequence of three drugs that is set by
state regulations: an anesthetic — sodium thiopental in every state but Oklahoma
— intended to prevent pain, followed by a muscle relaxant and a drug that stops
the heart.
As the shortage became acute last fall, California and Arizona obtained
shipments of sodium thiopental from England, but the British government has
since refused to allow exports of drugs for use in capital punishment, a policy
that is under consideration by the entire European Union.
Those were two of several special shipments to corrections departments permitted
by the Food and Drug Administration in 2009 and 2010, said Christopher Kelly, a
spokesman for the agency. “No shipments are currently being held,” Mr. Kelly
said on Friday.
Texas, which carries out more executions than any other state, has an aging
stock of sodium thiopental that will expire in March, leaving it unusable.
“There currently are four executions scheduled in Texas — two in February, one
in May and one in July,” said Michelle Lyons, director of public information at
the Texas Department of Criminal Justice. “At this time, we have enough sodium
thiopental on hand to carry out the two executions scheduled in February. In
March, our supply of this particular drug is set to expire.”
“The Texas Department of Criminal Justice will explore other options, including
possibly seeking an alternate drug for use in Texas’ lethal injection process,”
she said in an e-mail.
Two states, Ohio and Washington, use only one drug, sodium thiopental, which is
fatal at larger doses for executions.
“What I can tell you is Ohio does have enough sodium pentothal to carry out the
execution scheduled in February,” said JoEllen Smith, a spokeswoman for the Ohio
Department of Rehabilitation and Correction, using an alternate name for the
drug. “But beyond that we are going to decline to comment on our supply of the
lethal injection drug.”
Officials in Washington said that they had not had time to consider how to adapt
to the news that sodium thiopental will no longer be available. The state has
seven people on death row, but no executions are currently scheduled.
Officials in Arizona, where 134 people are on death row, said they had enough
sodium thiopental for five executions, although none are currently scheduled.
Many states are expected to follow the lead of Oklahoma, substituting
pentobarbital — another, more easily available anesthetic — in a similar
three-drug sequence.
Pentobarbital is widely used in veterinary medicine and is also used in legal
human euthanasia in Oregon. Death penalty opponents challenged the switch last
year in Oklahoma, arguing that the effectiveness of pentobarbital in preventing
pain during executions had not been proved. But a federal judge sided with the
state, which has since used the new drug in three executions.
Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said the
department orders the drug through a “private pharmacist” but would not specify
who.
Only one company, Lundbeck Inc., now markets injectable pentobarbital in the
United States, according to the F.D.A., but the agency said it was not aware of
any shortage.
