Tuesday, March 29, 2005

Robert Harlan

The Colorado Supreme Court has vacated the death sentence of Robert Harlan and commuted his sentence to life without parole. The Court held that it was improper for several of Harlan's jurors to look up Bible passages regarding an "eye for an eye" and copying them for discussion in deliberations. Colorado law prevents jurors from bringing in any outside material for deliberation.

This ruling has put many "people of faith" up in arms. They claim that jurors should not be required to leave their faith at the door of the jury room, that they should be allowed to consider their moral stand on these questions and should not have to erase from their memory moral teachings. I'm not sure I agree with the principal of that statement. However, regardless of the main concept expressed by challengers to this ruling, the situation here is different. In this case, the jurors did not simply rely on teachings and moral concepts they had developed throughout life. Rather, they copied down Biblical passages and brought them in to share with other jurors. It is possible that some juror who did not share the same moral convictions was influenced by these materials. It is a wholly different situation than a juror who simply quotes the Bible from memory. It has a different strength when its seen in writing...whether the reader would be inclined to believe it as "God's word" or not.

The funny thing about "eye for an eye" is that there are plenty of other passages regarding punishment in the Old Testament portion of the Christian Bible that no one bothers to bring up in today's society. For example, Biblical society stoned adulterers. I wonder how many of the jurors (or lawyers involved) would vote for that punishment. Be consistent; if you are going to advocate death for murderers based on Biblical principals that are seriously outdated (certainly for Christians since Jesus reportedly created a "new covenant" and a "new law"), then you should advocate the other punishments "required" by God in the Old Testament. Of course, as I recall, Jesus also advised a group of angry citizens to think carefully before throwing the first stone on a woman accused of adultery. He advised "let he who is without sin cast the first stone." Perhaps consistency is appropriate here as well. I wonder how many of the jurors would have felt comfortable pulling the switch or pushing the buttons. I wonder how many could cast that stone.

I also wonder what the outcry would have been if it had not been the Christian Bible used in deliberations, but instead had been the Koran or perhaps even Buddhist teachings on peace and nonviolence. Would religious and moral teaching have had a place in the jury room then? Or is such teaching only valuable when it comes from the Christian perspective? Of course, portions of the Koran advocate removal of the hands for the crime of theft. Why is that different than "eye for an eye"?

Death sentence by jury that discussed Bible thrown out

Tuesday, March 22, 2005

William Payton: Brown v. Payton

The United States Supreme Court issued its ruling in Brown v. Payton today. William Payton was before the Court asking for a new trial based on a botching of the jury instructions during the penalty phase. In a 5-3 holding, the Supreme Court vacated the holding of the Ninth Circuit (en banc) that Payton deserved a new trial.

In an opinion drafted by Justice Anthony Kennedy (who this time joined the Scalia/Thomas contingent along with Justice Breyer who arguably switched from his Simmons vote with a concurrence related to the state court's rights under AEDPA), the Court held that it was inconsequential that the prosecutor incorrectly argued that evidence of Payton's religious conversion was irrelevant to evidence of mitigating factors. Irrelevant? Such evidence is highly relevant both to evidence of mitigating factors and to future dangerousness. The justices held that the prosecutor's statements were not enough to warrant a new trial since the jury had heard evidence of the religious conversion and could consider it if they chose. Wait a minute? Doesn't the judge have a duty to ensure that the jurors know exactly what mitigation means? By allowing those statements to go to the jury without (at least) further extrapolation and retraction, the judge essentially allowed the prosecutor's comments to become part of the jury's instructions and part of the definition of mitigation. The jury was told by the State of California that Payton's religious conversion was of no consequence when it came to mitigation. Essentially they were told that it was not a consideration in whether Payton deserved to die for his crimes or whether his life should be spared. Without correction in the jury instructions, there was no reason for the jury to think it SHOULD consider the evidence. Just because evidence is presented does not mean it is relevant to the consideration before the jury. They jury's charge is defined by the jury instructions. Those are under the purview of the judge. By not, at the very least, correcting the mitigation instruction to assure the jury knew of its ability to consider this evidence, the judge essentially nullified the Eighth Amendment's protections against unfair sentencing and its allowance for consideration of mitigating factors (as defined by the United States Supreme Court and the courts of many states). Even more infuriating, the United States Supreme Court today approved that judge's omission and essentially told the bench that it would not be held accountable for its duty to explain mitigation.

The Court also used AEDPA to avoid having to truly rule in this case. That fact actually makes me even more angry, especially in light of Bush v. Gore, the Schiavo case, and the constant flutter about same sex marriage at the federal level (I'm sorry, but when did marriage become a federal concern?). AEDPA, for those of you who don't know, is a federal law that defines what kinds of habeas cases can be decided by the federal courts. It is federalism at its "best." Under its provisions, the federal courts are only supposed to overturn state decisions in cases where the actions of the state fly in the face of the U.S. Constitution and clear federal law protections as interpreted by the United States Supreme Court. One of my main problems with it (besides the fact that President Clinton broke my heart by signing it), is that it does not allow for "new" constitutional questions on habeas review. If the United States Supreme Court has not ruled on the issue before, that does not necessarily mean that the defendant's constitutional rights were not violated just because the state courts upheld the conviction and the actions of the state (the state in which it sits without lifetime tenure). On more than one occasion while I was a clerk at the United States Court of Appeals, I saw a panel turn away a case that clearly had constitutional implications simply because there was no United States Supreme Court precedent upon which to base a decision. So, why have the habeas post conviction relief opportunity anyway? If the federal courts cannot review the constitutionality of a state court's decisions without restraint, what role does habeas review serve in protecting an individual's rights? I suppose there is still some, but AEDPA is just subjective enough that a court can use it as an excuse to not have to rule on a difficult question. That, in and of itself, is annoying. (For the record, I OF COURSE find value in habeas review...I'm just expressing my irritation through sarcasm).

William Payton is probably out of stops. Its possible California will see a second execution this year. Payton has been on California's death row for 25 years while this question was fought. The federal courts awarded him a new trial. They gave him hope. Today, that hope was taken away.

Justices:Death row inmate's religious conversion properly considered

Monday, March 21, 2005

Fred Freeman (and others)

I am so angry I could explode! Apparently, a former prosecutor from Alameda County, California has filed a sworn statement averring that he and other assistant prosecutors "routinely" used their peremptory challenges to keep Jews and black women off juries in capital cases and that keeping Jews off death cases was "standard practice." In addition, in Fred Freeman's case (the individual for whom the prosecutor filed his statement) this former prosecutor claims to have colluded with the judge (Superior Court Judge Stanley Golde, himself Jewish) to keep Jews off the jury. Apparently, the judge told this prosecutor that "No Jew would vote to send a defendant to the gas chamber."

I'm furious that this kind of deliberate racism, antisemitism and xenophobia continues within our "justice" system (and elsewhere!). Of course, I knew that it did, but having a sworn acknowledgement of it from a capital case prosecutor just boils me. Perhaps its better that it is now out in the open. Perhaps now, something will be done about it. Perhaps now, juries in California will be more fairly empaneled and the defendant will have just as fair a shot at NOT getting a death sentence as getting one. God forbid we would put people who object to executing human beings on a jury. Of course, that's just the legal (and moral!) implication of purposefully leaving particular ethnic or religious groups off juries. The much broader statement is the statement made by the assumptions and stereotypes implied in the idea that Jews or black women would not be proper jurors in a death case because they would never send someone to death row.

Of course, on the bright side, for either side to purposefully exclude a juror from serving on a panel simply because of race, ethnicity, gender, or religion is grounds for a mistrial. As such, if the California Supreme Court determines through its hearings (it ordered hearings on this issue after seeing the statement in Freeman's case) that such exclusionary racist, anti-semitic behavior has indeed occurred, it will open the door for many individuals currently on death row to receive new trials and new sentencing. When it comes to someone on death row, a shot at a new trial and new sentencing is an excellent thing (at least for the accused and for the justice system...however, it can be a horrible ordeal for the victim's family...which is exactly why the state should get it right the first time and not trample all over peoples' rights just because they think they can get away with it! No one wants a retrial to result in the person responsible being released because the evidence is too old and the new jury has reasonable doubt. Unfortunately, such a result is possible with a retrial. If that happens, then the state is essentially responsible for putting a murderer back on the street because its overzealousness to get a death sentence somehow required a need to trample the Constitution).

Ex-prosecutor says he kept Jews off juries

Thursday, March 17, 2005

Sorry gang. I know I'm really behind in my posting. I've missed at least two executions, maybe three (isn't it sad that I don't even know? That's how crazy I've been!). There are also some legal developments I've been meaning to blog on. I'll get back up to date soon, I promise. Until then, keep up the good fight!

Thursday, March 10, 2005

Blast it all! The U.S. has pulled out or part of the Vienna Convention. For 35 years, the Vienna Convention has assured that citizens of its signatories are allowed consult with their home-country diplomat when jailed abroad. The United States has now withdrawn itself from that portion of the Convention (referred to as an "Optional Protocol").

The United States has used this portion of the Convention on more than one occasion to protect its own citizens abroad. However, death penalty opponents and foreign governments have used it as argument in death penalty cases of foreign nationals in the U.S. (OFTEN foreign nationals are given death sentences without the opportunity to consult with their diplomat). As noted in a post below, the Bush administration granted hearings to 51 Mexican death penalty inmates to review whether they were given ample opportunity to speak to their diplomat. The United States Supreme Court is also about to hear a case regarding this very issue.

I am ashamed that "my" government would pull itself out of one portion of such an important Convention simply because it does not want to have to provide foreign nationals with the opportunity to consult their governments before they are given the ultimate punishment. Of course, this whole thing has created quite a rift between Bush and Mexican President Vicente Fox. I imagine withdrawal from this portion of the treaty is not going to help that relationship. After all, now Mexican nationals who are arrested and charged with capital crimes will not even have the right to consult. At least before today, that right was just being violated...it wasn't removed. Huh...which is worse?

U.S. Quits Pact Used in Capital Cases

Donald Ray Wallace Jr. - Indiana

The State of Indiana executed its first man of 2005 early this morning (its 12th since the death penalty's reinstatement in 1977). Donald Ray Wallace Jr. died at 1:23 this morning after spending 25 years on Indiana's death row. By all reports, Wallace was a changed man. However, he did not seek clemency from the Governor and instructed his attorney not to file a petition on his behalf. David Elliot posted a column about Wallace's change on the NCADP blog site. Its worth reading.

The family of Wallace's victims attended a vigil on Wednesday evening to remember their family members. The vigil was held at the same church where the Gilligans were married. Wallace visited with friends during the hours before his death and expressed his hope that everyone can now find peace.

Man put to death for killing 4 in 1980

Wednesday, March 09, 2005

William H. Smith - Ohio

The State of Ohio executed William H. Smith yesterday morning. Smith died at 10:19 a.m. after asking the grandson of his victim, Mary Bradford, for forgiveness.

Smith was diagnosed with a brain lesion after being sent to death row. His attorneys argued unsuccessfully that Smith may have been spared the death penalty had they known of the brain lesion before his sentencing.

Once again, this is the case of a murder that happened under the influence of drugs and alcohol. Smith and Bradford spent some time drinking and then used cocaine together shortly before Smith killed her. One has to wonder what affect the drugs and alcohol had on Smith's state of mind.

In Smith's last statement he very poignantly said "I cannot control anything from this day on. Find the right way. Be a better person than I am. Don't wait until its too late to try to save somebody else."

William H. Smith Executed
The Bush administration has ordered review of the death penalty cases of 51 Mexican nationals. Earlier this year (as you may recall me commenting), the International Court of Justice ruled that the rights of these 51 individuals were violated when the prosecution failed to notify the Mexican government of their arrests and prosecutions. The Bush administration made its announcement through a brief it filed with the United States Supreme Court related to upcoming arguments in Medellin v. Dretke, a case involving this very issue.

To me, this feels like a peremptory challenge. It feels as though the Bush administration is trying to make the issue "moot" so that the United States Supreme Court will not rule on the question and will, therefore, not expand death penalty jurisprudence. I suppose I could be stretching things. Perhaps the administration is just trying to do the right thing. I somehow doubt that thought. If I'm skeptical, it's because this particular administration is not known for being sensitive to those on death row or to immigrants. Bush's Texas administration also had a reputation of avoiding death penalty questions and a lack of sensitivity to immigrants. SO...I'm skeptical that there are not alternative motives behind this call for action. Of course, many of the 51 cases affected involve individuals in Texas. I wonder how many of those were convicted and sentenced under Bush's watch...

New hearings sought for Mexicans on death row

George Anderson Hopper - Texas

The State of Texas executed its fourth man in 2005 last night. George Anderson Hopper was executed for a murder he committed for hire in the 1980s. Hopper, 49, died shortly after 6:00 p.m. He made a final statement in which he apologized to the four family members who were there to observe his killing. He called his actions "an atrocity," and begged for forgiveness.

Convicted hit man executed in Texas

Tuesday, March 08, 2005

The link below is to a very interesting commentary on Roper v. Simmons written by FindLaw Columnist Edward Lazarus. Lazarus is an attorney and law professor living in Los Angeles. He is also a former prosecutor. For those of you interested in the legal implications of the Simmons decision (i.e. what it means for the Supreme Court now and going forward), this is a particularly interesting column.

The Supreme Court and the juvenile death penalty

Thursday, March 03, 2005

Napolean Beazley

David Elliot has posted the final statement of Napolean Beazley on the NCADP blog. The State of Texas executed Beazley on May 28, 2002. Had the U.S. Supreme Court's ruling in Simmons come before May 28, 2002, Beazley would be alive. Napolean Beazley was a wild teenager when he killed John Luttig. A prime example of the changes that come between adolescence and adulthood, Napolean matured into an upright young man. The murder of his victim was tragic and unjustifiable, something Napolean Beazley admitted. That, however, makes the murder of Napolean Beazley no less shameful...

Please, take a moment to read Napolean's statement. I think you'll find it worth your time.

Tuesday, March 01, 2005

Stephen Mobley - Georgia

As wonderful as the Simmons decision is, it unfortunately did not outlaw all executions.

Thirty-nine year old Stephen Mobley died at shortly after 8 p.m. this evening. The Georgia Parole Board had denied his request for clemency on February 26th, and the U.S. Supreme Court refused to prevent the execution. Shortly before his death, Mobley stated that he was grateful for the opportunity to atone for his sins. He was only 24 when he robbed a pizza store and fatally shot John Collins, the store clerk.

According to reports, had life without possibility of parole been an available sentence in 1991, the victim's family, the prosecutor and 6 of the 10 jurors on Mobley's jury would have preferred that option over the penalty of death. Two years after his conviction, Georgia allowed the possibility of life without parole as an alternative to death in capital murder cases. Yet, the state killed Stephen Mobley tonight. I guess timing is often a source of irony isn't it?

Man executed for pizza store murder

Roper v. Simmons: Unconstitutional!

I'm amazed. In fact, I'm so happy, I started to cry sitting here at my desk.

The United States Supreme Court has ruled that it is unconstitutional to execute someone for a crime he or she committed while under the age of 18. The Court held that executing juveniles violates the Eighth Amendment's prohibition against cruel and unusual punishment. Justice Anthony Kennedy drafted the opinion. He was joined by Justices Ginsburg, Stevens, Souter and Breyer. In the opinion, Kennedy wrote: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime." (emphasis added)Nineteen states still allowed the execution of those who committed their crimes under the age of eighteen. The decision affects 72 individuals on death row. Those 72 individuals will now be allowed to live.

It's a good day.

High court: Juvenile death penalty unconstitutional