Thursday, December 30, 2004

Blog break!

The blog is taking a much-needed vacation!

We will return on Monday, Jan. 10th.

Year in review

As we wrap up 2004, let's look at where we're at:

Executions at a five-year low (59, compared with 65 last year and compared with 98 in 1999).

Death row population down slightly.

Death sentences dramatically down (an estimated 130 in 2004, compared with 144 in 2003 and 282 in 1999).

Courts in Kansas and New York struck down the death penalty.

California created a death penalty study commission.

New Jersey could be on the verge of abolition (and, perhaps, Connecticut too).

North Carolina may pass a moratorium this next year.

The U.S. Supreme Court may soon strike down the juvenile death penalty.

Texas may be headed for a court-enforced moratorium, unless and until the Texas Court of Criminal Appeals and U.S. Fifth Circuit Court of Appeals agree to start obeying the law and providing the comprehensive review of death sentences that the U.S. Supreme Court (and the U.S. Constitution) demand.

All in all, not a bad year for the abolition movement.

Champagne, anyone?

6,000 visitors and counting!

Earlier today, we had our 6,000th visitor to this blog.

That's not a lot compared with some huge blogs out there like daily kos or talking points memo or talk left.

But it's quite more than I imagined when we launched this blog as an experiment last summer!

I'd like to thank not only all of the progressive blogsters out there who have linked to us (and thus provided most of our traffic) but also my brother and sister blogs at grits for breakfast and lonelyabolitionist for their often and kind mentions.

Wednesday, December 29, 2004

Mr. Warner dithers

The Washington Post ran yet another editorial today calling for DNA testing for Roger Coleman, executed more than a decade ago by Virginia. The editorial begins:

Dithering on DNA

WHEN MARK R. WARNER became Virginia's governor three years ago, we greeted him with the friendly suggestion that he order new DNA testing in the case of Roger Keith Coleman. The commonwealth executed Mr. Coleman back in 1992, but both before and since the execution, his guilt has been heatedly disputed. An early form of DNA testing before his death suggested that he did commit the rape and murder for which he was condemned, but its methodology was controversial, and more modern testing might finally put the matter to rest. Ordering the testing should not be a tough call. New tests might -- by proving Mr. Coleman's guilt once and for all -- remove a cloud that has hung over Virginia's criminal justice system since the execution.

It continues:

This is getting ridiculous. It should take no great political courage for Mr. Warner to order the testing. It's hardly as though Mr. Coleman -- who is dead, after all -- will walk free if the testing exonerates him. The only questions the case still raises are of historical accuracy and retroactive accountability for the state's criminal justice system.

And it concludes:

Mr. Coleman, after all, insisted upon his innocence from the day of his arrest to his haunting last words: "An innocent man is going to be murdered tonight." If he was telling the truth -- however improbable that might seem -- respecting the "finality" of his conviction means never prosecuting the person who actually committed the murder. Every day that Mr. Warner dithers, he tacitly betrays an anxiety that the justice system over which he presides cannot withstand daylight.

To read the entire piece go here.

Tuesday, December 28, 2004

What would your last meal be?

Go here to see an interesting flash animation. (If you have a slow browser, it may take a while to's worth it!)

Thursday, December 23, 2004

'Foolproof death penalty?'

The New York Times is spoofing attempts by Massachusetts Gov. Mitt Romney to create a "foolproof death penalty" in his state.

I think the operative word here is "fool!"

This is kind of like the annual Darwin awards, if you follow those (or, for those of you in my home state of Texas, the "Bum Steer Awards" given out each year by Texas Monthly).

To read all about it, go here.

Wednesday, December 22, 2004

Death in Texas

There's an amazing essay that just hit the newstands, written by Sister Helen Prejean and published in the January issue of the New York Times Review of Books.

It's about George W. Bush and executive clemency. Here's part of the article:

Here was Karla Faye, a woman who had transformed her life and would have been a source of healing love to guards and prisoners for as long as she lived, yet the iron protocol of retributive justice demanded that she be put to death. It was as if Bush and Albert Gonzales and the pardons board had freeze-framed Karla Faye Tucker in the worst act of her life, then freeze-framed themselves into killing her. That's the way a machine works, relentless and preordained, with no room for the personal transcendence that conscience gives. It was all so mechanical, so unthinking, so political. That's why on the night of Karla Faye's killing, my anger at George W. Bush turned to outrage when Larry King aired Bush's press statement and I heard the way Bush invoked God to bless his denial of clemency. I already knew the substance of Bush's position toward Karla Faye, but I had never heard the last sentence of his press statement: "May God bless Karla Faye Tucker and may God bless her victims and their families."

Immediately after the statement, King turned to me for a response. When I heard Bush say, "God bless Karla Faye Tucker," I had to struggle to keep a vow I made to reverence every person, even those with whom I disagree most vehemently. Inside my soul I raged at Bush's hypocrisy, but the broadcast was live and global. With not much time to rein myself in, I took a quick breath, said a fierce prayer, looked into the camera, and said, "It's interesting to see that Governor Bush is now invoking God, asking God to bless Karla Faye Tucker, when he certainly didn't use the power in his own hands to bless her. He just had her killed."

As governor, Bush certainly did not stand apart in his routine refusal to deny clemency to death row petitioners, but what does set him apart is the sheer number of executions over which he has presided. Callous indifference to human suffering may also set Bush apart. He may be the only government official to mock a condemned person's plea for mercy, then lie about it afterward, claiming humane feelings he never felt. On the contrary, it seems that Bush is comfortable with using violent solutions to solve troublesome social and political realities.

The aphorism "A hammer, when presented with a nail, knows to do only one thing" applies, par excellence, to George W. Bush. As governor of Texas, Bush tackled the social problem of street crime by presiding over the busiest execution chamber in the country. At the time of the thirteen death row exonerations in Illinois, Bush stated publicly that although states such as Illinois might have problems with a faulty death penalty system, he was certain that in Texas no innocent person had ever been sent to death row, much less executed. That remains to be seen. What is clear is that he had, as governor, no quality of mercy.

To read the whole article, go here.

Tuesday, December 21, 2004

Watch Larry King Live tonight...

Ray Krone, who was sentenced to death in Arizona and later completely exonerated (can one be partially exonerated?) will be on Larry King Live at 9 p.m. Eastern tonight (unless he gets bumped by breaking news).

Ray is a really, really nice guy and has an amazing story to tell.

I don't know what Larry King is up to, but Kirk Bloodsworth is tentatively scheduled to be on his show on Dec. 29. Bloodsworth also is a really nice guy -- and, I believe, a former member of the U.S. Marines track and field team (he threw the discus). Bloodsworth is an exoneree out of the state of Maryland and was actually the first person proven to be innocent by DNA testing.

Monday, December 20, 2004

The death penalty in the year 2022

Where will the death penalty debate be in the year 2022? It's a fascinating question. For one scholarly take -- constituional law meets up with informed science fiction -- go here:

Friday, December 17, 2004

Gov. Ryan, part one

Kristen Bell is a friend, a senior at Stanford University and a former NCADP intern. In fact, the few of you who followed this blog early last summer know that she was helping out back then, when we were struggling to get five or ten readers a day!

Now Kristen returns to us as a guest blogger. She heard Gov. Ryan speak recently at Stanford University and she files this two-part report:

It was the first night of finals week at Stanford University. Like a house on the night before Christmas, the campus was silent. Students do not go to class, athletes do not attend regular practices, clubs do not meet, the campus newspaper is not even published. Needless to say, it is not a good time for speakers to come if they want a decent audience.
But students, faculty, and staff filled one of the largest lecture halls in the Law School that night to hear Gov. George Ryan speak. With standing room only, the room was abuzz.
The attendance came as a welcome surprise to me, since a death penalty speech by lawyer and author Scott Turow was very poorly attended earlier this year. And now it was finals week.
“Wow,” I thought. “Maybe people really do care about the death penalty.”
I wondered how many people in the audience were like me—decided opponents of the death penalty who had come to see a real live hero of the abolitionist movement.
I wondered how many people in the audience were like my friend sitting next to me—genuinely undecided people who had come to hear a former government official give a balanced argument against the death penalty.
“I've heard all the arguments and such, but always from advocates,” said my friend before the speech. “It'd be interesting to hear a governmental or political stance.”
We both got what we came for.
I saw the man whose face in a newspaper covers the back of my binder. Hearing him speak filled my eyes with tears and my heart with a rejuvenated sense of purpose.
My friend saw an old, card-carrying GOP-member explain how he came to reject a corrupt system of punishment. Hearing him speak prompted her to write down some facts and questions. Perhaps she did not leave with a burning desire to abolish the death penalty, but—quite in the spirit of finals week—she left with some new things to think about.

Gov. Ryan, part two

Kristen continues:

I too left with some new questions to think about.
Gov. Ryan spoke about the practical problems associated with carrying out a capital punishment system—problems like corrupt police officers forcing confessions, incompetent lawyers sleeping through trials, discrimination on the basis of skin color, mistakes in determining guilt and innocence.
These problems caught his eye in the Chicago Tribune. These problems made him examine the system. And these problems led him to commute the sentences of all 167 death row inmates in Illinois.
It seemed to me, then, that Gov. Ryan was opposed to the death penalty because of these practical problems. The issue for him was the just practice of a policy, not the moral fabric of the policy itself.
But perhaps not.
After the speech, he was asked, “What about the moral question of the death penalty?” Ryan responded that he was morally opposed to the death penalty.
I asked him if he thought retribution was a suitable justification for the death penalty (the Supreme Court does cite retribution as a justification for the death penalty). “No,” Ryan said, point-blank. “Retribution is wrong.”
I wonder how he had changed his opinion on that moral question. He used to believe that bad guys deserved to die. Now he believes not only that we cannot perfectly identify the bad guys in practice, but also that we cannot say bad guys deserve to die on moral grounds.
That’s not just a change of mind, that’s a change of heart.
How does that change of heart happen? And how can we bring it to the heart of America?

News flash

Kansas' Supreme Court has just struck down that state's death penalty law. Here's the AP story:

TOPEKA - Kansas' death penalty law is unconstitutional because it favors the state over defendants when aggravating and mitigating circumstances are equally split, the Kansas Supreme Court ruled in a 4-3 decision today.

The decision came in the case of Michael Marsh of Wichita, who was convicted of killing Marry Ane Pusch and her 19-year-old daughter, Marry Elizabeth in 1996.

The decision was not a broad, sweeping indictment of capital punishment, but rather identified a technical error in the law the state Legislature could fix during their upcoming session.

The three justices who disagreed with the ruling, however, said it would wipe out the death penalty in other cases, including Reginald and Jonathan Carr, convicted of killing four people in Wichita in December 2000; Douglas Belt, sentenced to death last month for killing Lucille Gallegos in Wichita; and John Robinson, convicted in Johnson County of killing two women and stuffing their bodies in barrels.

The court also ordered a new trial for Marsh on capital murder and aggravated arson charges. The trial court erred by refusing to allow testimony that the victim's husband may have been involved in the murder, the Supreme Court ruled.

In a dissent, Chief Justice Kay McFarland wrote that the Supreme Court upheld the death penalty under similar circumstances in the case of Gary Kleypas, convicted in the 1996 rape and murder of Carrie Williams in Pittsburg.

"To now strike down the Kansas death penalty law is, in my opinion, wholly inappropriate and unjustified," she wrote.

Thursday, December 16, 2004

Incredible developments in New York

It really is beginning to look like the death penalty is on its way out in the state of New York. You may recall that earlier this year, a New York state court struck down the existing death penalty statute.

Now the Republicans (and a few Democrats) are trying to bring it back, but the public and media backlash against the death penalty has been incredible! Yesterday, at a hearing in New York City, hundreds of people turned out in opposition to the death penalty, and only two witnesses testified in favorite of it.

NCADP's own David Kaczynski had this to say, as quoted in New York Newsday:

"It's political, it's revengeful, and it ultimately doesn't work," said
David Kaczynski, head of the advocacy group New Yorkers Against the Death
Penalty. The brother of notorious "Unabomber" serial killer Ted Kaczynski,
he's been campaigning against the death penalty ever since he turned in
his mentally ill brother to federal authorities in 1996, only to have them
try to impose the death penalty. Ted Kaczynski eventually got a plea deal
that gave him life without the possibility of parole.

Add to that this comment from Manhattan District Attorney Robert Morgenthau:

He told the Assembly members that he opposes the death penalty because it doesn't deter crime, it's expensive, its only reason is vengeance, its application "mostly closely resembles the lottery," and its main purpose is to allow public officials to prove how tough they are on crime.

New York, New York, the abolition train is a-coming.

Regarding Scott Peterson

Eric Predoehl, who operates the blog EP Rants You got a problem with that?, writes logically of the Scott Peterson dilemma:

Millions have dollars have been spent on the Scott Peterson case, and the recommendation for the death penalty will ensure that millions of more dollars will be spent by the state of California for the invariable appeals process. As the state of California struggles with massive budget problems, leading to a shut-down of various fire stations, libraries, educational programs, and other important public services, there always seems to be plenty of money to pay for the business of death. The prosecution and defense lawyers will be gainfully employed for the continuing process, while the families will endure the trauma of this hellish legal nightmare with each and every new trial.

To read the entire essay, go here.

Wednesday, December 15, 2004

A new day in New York City

This morning, a hearing was held in New York City on a proposed bill to reinstate the death penalty in New York. (Earlier this year, a state court struck down New York's existing death penalty statute.)

Here's what a columnist for Newsday has to say about the state of things:

At 10 o'clock this morning on West 44th Street, in a meeting hall at the Bar Association of the City of New York, Assembly Speaker Sheldon Silver will hold a rare public hearing on whether the state should be in the death business again.

A big crowd is expected today. But just before the hearing begins, people from 300 religious groups, unions, activist organizations and others will announce a giant coalition to keep the death penalty off the books in New York. Standing at the front of this group is Andrew Cuomo, Mario's son.

The issue is the same it has always been. But suddenly, the ground is not.

"I remember when my father first ran," said the younger Cuomo, who was federal housing secretary and made a brief run for governor two years ago.
"The only thing people knew the governor of New York did was he passed the death penalty. The only thing they knew about my father is that he was against the death penalty, and they were for it."

But something has obviously changed in the past 10 years on the politics of death.

"Crime is down," Cuomo said. "The discussion is more sober. People are in a different place. I'm not sure it was the death penalty that people really wanted before. It was their way to say, 'I'm afraid of crime. I'm afraid for my family and not enough is being done.' It is their way of saying, 'I am so scared and angry, I'll go to the extreme.

To read the entire column, go here.

Tuesday, December 14, 2004

One direction.

Today, the Death Penalty Information Center released its annual report, sort of a state-of-the-death-penalty if you will. DPIC Executive Director Dick Dieter had this to say:

"The events of the past year and the statistical evidence all point in one direction," said Richard Dieter, executive director of the Death Penalty Information Center.

"The public's confidence in the death penalty has seriously eroded over the past several years. Because of so many failures, the death penalty is rightly on the defensive. Life-without-parole offers the public a better alternative without all the risks and expense."

To read's story on the DPIC report, go here.

Monday, December 13, 2004

Playing politics with the death penalty

Virginia is one of the few states (New Jersey being the only other, I think) that elects its governor during odd-numbered years. So, next November, Virginia will choose between two candidates. Frontrunners are Republican Attorney General Jerry Kilgore and Democrat Lieutenant Gov. Timothy Kaine. Kaine has a history of opposing the death penalty.

This is a nonpartisan blog, so we can't officially endorse. However, we are allowed to publish information about the race. In this vein, we offer up this editorial from today's Washington Post:

Mr. Kilgore's False Start

Jerry W. Kilgore, the Republican attorney general of Virginia, apparently needs a refresher course on the Constitution. In attacking his likely opponent in the state's 2005 gubernatorial race, Democratic Lt. Gov. Timothy M. Kaine, the attorney general said last week that Mr. Kaine "not only opposes the death penalty but actually represented death row inmates." As it happens, Mr. Kaine, a fair-housing and small-business lawyer at the time, acted as a court-appointed attorney to represent 2 Virginia death row inmates -- one in the mid-'80s, the other around 1990.
He did so, he says, after much soul-searching and in the knowledge that lawyers are bound by the ethics of their profession not to reject cases simply because they may be unpopular. As an attorney appointed by the state Supreme Court, Mr. Kaine was fulfilling a public service.

Mr. Kilgore's inane accusation is an affront to the principles of justice he is sworn to uphold. It's no great shock that he embraces the death penalty; what's surprising is that, as the state's top law enforcement official, he would imply that there is something wrong with representing defendants or convicts in capital cases. In fact, the attorney general in Virginia, whatever his stance on capital punishment, should be applauding lawyers who agree to represent inmates on death row, many of whom have no defense counsel whatever.

Mr. Kilgore was also once a lawyer in private practice. We assume that all his clients were law-abiding paragons of righteous behavior, but for the sake of argument let's say some of them were not. Should Mr. Kaine then attack him for his former clients' transgressions? Of course not.

Friday, December 10, 2004

Ronald Williamson: dead at 51

From today's New York Times:

Ronald Williamson, Freed From Death Row, Dies at 51

Ronald Keith Williamson, who left his small town in Oklahoma as a high school baseball star with hopes of a major league career but was later sent to death row and came within 5 days of execution for a murder he did not commit, died on Saturday at a nursing home near Tulsa. He was 51.

Mr. Williamson's early life appeared charmed. As a pitcher and catcher in Ada, he twice led his high school teams to the championship of a state where another native son, Mickey Mantle, enjoyed the status of near deity. The Oakland Athletics picked Mr. Williamson in the 2nd round of the 1971 amateur draft.

After 6 years in the minor leagues, Mr. Williamson saw his career end because of arm injuries. He returned to Oklahoma and worked at a sales job, but began to show signs of a mental illness that was eventually diagnosed as bipolar disorder.

In late 1982, a waitress, Debbie Sue Carter, 21, was found raped and killed in her apartment in Ada. The case remained open until 1987, when a woman who had been arrested for passing bad checks told the police that she had heard another prisoner discussing the killing. The man, she said, was Mr. Williamson, who had been in the jail for kiting checks.

Mr. Williamson was charged with the killing. So was a 2nd man, Dennis Fritz, a high school science teacher who had been one of Mr. Williamson's few friends when he returned to town after his baseball career. The evidence, the authorities said, consisted of 17 hairs that matched those of Mr. Williamson and Mr. Fritz, and the account provided by the woman who said she had heard Mr. Williamson confess. A 2nd jailhouse informer later stepped forward to buttress the case against Mr. Fritz.

Mr. Williamson and Mr. Fritz were tried separately and found guilty. Mr.
Fritz was sentenced to life in prison, and Mr. Williamson - who had not received his psychiatric medicines for months before the trial and shouted angrily at the prosecution witnesses - was sentenced to die.

Mr. Williamson later said the prison guards taunted him over an intercom about Ms. Carter's murder. In September 1994, when all of his state appeals had been exhausted, he was taken to the warden's office and told that he would be executed on Sept. 24. He recalled filling out a form that directed his body to be returned to his sister for burial.

A team of appellate lawyers, however, sought a writ of habeas corpus from Judge Frank H. Seay of Federal District Court, arguing that Mr. Williamson had not been competent to stand trial and that his lawyer had not effectively challenged the hair evidence or sought other suspects. Judge Seay granted a stay 5 days before Mr. Williamson was scheduled to die.

In 1998, lawyers from the Innocence Project at the Benjamin C. Cardozo School of Law in New York arranged DNA tests for Mr. Williamson and Mr. Fritz. They showed that neither man had been the source of the semen or hair collected from the victim's body. Another man, Glen D. Gore, has since been convicted of the killing and sentenced to die for it.

Thursday, December 09, 2004

Closing in on innocence

For some time now, I have felt that the whole nature of the death penalty debate will change once we can prove that an innocent person has been executed in what we call the "modern era," i.e., the era since 1976, when executions were allowed to resume in the U.S.

We're getting close to being able to prove such a thing. One case currently is perculating in Virginia, one in Oklahoma, one or two in Texas.

And now, suddenly, this story pops up in today's Chicago Tribune:

Texas man executed on disproved forensics
Fire that killed his 3 children could have been accidental

By Steve Mills and Maurice Possley
Tribune staff reporters
Published December 9, 2004

CORSICANA, Texas -- Strapped to a gurney in Texas' death chamber
earlier this year, just moments from his execution for setting a fire
that killed his three daughters, Cameron Todd Willingham declared his
innocence one last time.

"I am an innocent man, convicted of a crime I did not commit,"
Willingham said angrily. "I have been persecuted for 12 years for
something I did not do."

While Texas authorities dismissed his protests, a Tribune
investigation of his case shows that Willingham was prosecuted and
convicted based primarily on arson theories that have since been
repudiated by scientific advances. According to four fire experts
consulted by the Tribune, the original investigation was flawed and it
is even possible the fire was accidental.

Before Willingham died by lethal injection on Feb. 17, Texas judges
and Gov. Rick Perry turned aside a report from a prominent fire
scientist questioning the conviction.

The author of the report, Gerald Hurst, reviewed additional
documents, trial testimony and an hourlong videotape of the aftermath
of the fire scene at the Tribune's request last month. Three other
fire investigators--private consultants John Lentini and John DeHaan
and Louisiana fire chief Kendall Ryland--also examined the materials
for the newspaper.

"There's nothing to suggest to any reasonable arson investigator that
this was an arson fire," said Hurst, a Cambridge University-educated
chemist who has investigated scores of fires in his career. "It was
just a fire."

Ryland, chief of the Effie Fire Department and a former fire
instructor at Louisiana State University, said that, in his workshop,
he tried to re-create the conditions the original fire investigators

When he could not, he said, it "made me sick to think this guy was
executed based on this investigation. ... They executed this guy and
they've just got no idea--at least not scientifically--if he set the
fire, or if the fire was even intentionally set."

To read the whole story (it's long!) go here.

Wednesday, December 08, 2004

Fry fish, not people

That's the slogan of Alaskans Against the Death Penalty, an affiliate of NCADP's.

This is no ordinary affiliate. Two of their members happen to be Bill Pelke and Rich Curtner, the chair and the vice chair of NCADP's Board of Directors.

This past Sunday, the Anchorage Daily News ran a great feature story about Bill and Rich:

There are a lot of numbers and percentages on the National Coalition to Abolish the Death Penalty Web site, but meaning can also be calculated in a list of 57 names. They are the names of the Americans executed so far in 2004. They are among 944 people executed in this country since the reinstatement of capital punishment in 1976.

When Bill Pelke looks at this list, the name James Allridge III stands out. Pelke, an Alaskan and one of the most vocal opponents of the death penalty in the nation, corresponded with Allridge for several years and worked throughout August to stop his Aug. 26 execution.

"When I look at that list, his name pops right out at me," Pelke said by phone from Washington, D.C., where he was traveling over Thanksgiving to visit family and promote the cause. "It says that the death penalty is unnecessary. It's totally ridiculous."

You can read the entire story here. The blog recommends it!

Tuesday, December 07, 2004

More on Miller-El

One more post on Thomas Miller-El, whose case was argued -- for the second time -- before the U.S. Supreme Court yesterday.

Reading the Houston Chronicle's article summarizing the case, one can anticipate that this is not going to be a close call for the court. Here's how the article starts out:

Court majority finds discrimination

Justices say prosecutors left blacks off jury deliberately in death penalty case
Copyright 2004 Houston Chronicle Washington Bureau

WASHINGTON - Faced with a Dallas County prosecutor's old training manual advising against choosing jurors who are black, Jewish, Hispanic, Italian-American, bearded, fat or female, a U.S. Supreme Court majority said Monday that a black defendant clearly suffered discrimination when blacks were excluded from his 1986 jury.

Antonin Scalia was the only justice to speak in favor of the state of Texas, which executes more killers than any other and is defending the way Thomas Miller-El was sentenced to die for capital murder.

For the second time in two years, the high court heard legal arguments from the state and the convict's lawyers Monday. A decision on Miller-El's move to overturn his conviction is expected by July.

Most of the justices Monday were openly critical of the lower courts that handle Texas death penalty cases. Court-watchers predicted the court will again try to corral what is considered a rogue appeals court, the New Orleans-based 5th U.S. Circuit Court of Appeals.

Perhaps the only question now involves how strong the rebuke will be.

Judicial defiance

It's not exactly former Alabama Gov. George Wallace standing defiantly in front of the schoolhouse door to keep blacks out, or former Arkansas Gov. Orval Faubus forcing LBJ to call out the national guard.

But today, in an editorial, the Washington Post pointed out the obvious: The Texas Court of Criminal Appeals and the U.S. Fifth Circuit Court of Appeals are defying U.S. Supreme Court edict.

Here's the editorial:

Judicial Defiance

Tuesday, December 7, 2004; Page A24

THE SUPREME COURT should not have had to hear the case of Thomas Joe Miller-El once, let alone twice. But yesterday the court for the second time held oral arguments in a capital case that ought to embarrass even Texas, with its unrivaled enthusiasm for executions. The question is simple: How overtly discriminatory must jury selection be before it becomes unconstitutional? Nearly two years ago, the Supreme Court instructed a lower appeals court to seriously examine evidence of racial bias in the jury's selection. The high court's message should have been clear when it expressed suspicion that "the State sought to exclude African-Americans from the jury." But after that ruling, the U.S. Court of Appeals for the 5th Circuit again averted its gaze from substantial evidence of discrimination, treating the case with what seems like willful disregard for the high court's meaning.

The backdrop of this case is Dallas's ugly history of keeping blacks out of the jury box. In 1963, a training manual for the district attorney's office stated: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." By the time of Mr. Miller-El's murder trial in 1986, such formal policies no longer existed, but office insiders testified that some prosecutors still observed them. And the Dallas Morning News reported that, in 100 cases studied, prosecutors had eliminated 92 percent of African Americans using peremptory strikes, a device for removing jurors who would otherwise be qualified.

The manipulations in Mr. Miller-El's case were not subtle. Prosecutors exploited rules to move potential African American jurors out of contention; of 11 who got past that barrier and were qualified to serve on the jury, 10 were struck by peremptory challenge. The only African American not challenged was one who declared that lethal injection is "too quick. They don't feel the pain. . . . What I call punishment is back to the old Indian days. . . . Pour some honey on them and stake them out over an ant bed." Texas argues that would-be jurors' statements, not their race, explain their being barred; but as the Supreme Court noted in its last opinion, prospective black jurors were questioned differently from others.

Amazingly, both the Texas court system and the 5th Circuit judges have consistently approved the prosecutors' conduct. In the last go-round, the 5th Circuit declined even to hear the case, contending that reasonable judges could not disagree on the subject. After eight Supreme Court justices disagreed and ordered the lower court to consider the merits of Mr. Miller-El's claims, the lower court rejected them -- using passages lifted nearly verbatim from Justice Clarence Thomas's lone dissent.

This case is no longer only about how big a fig leaf Texas gets when its prosecutors keep blacks out of the jury box. It also poses the question of whether the Supreme Court will allow a lower tribunal -- keen to keep the machinery of death humming -- to all but openly defy it. The answer must be no.

Monday, December 06, 2004

Which court is worse?

Scott Henson, a criminal justice reform activist in my hometown, asks this question on his blog. Which court is worse, the federal Fifth Circuit Court of Appeals, which is based in New Orleans and has jurisdiction over Texas, Louisiana and Mississippi, or the Texas Court of Criminal Appeals, which is the highest court in Texas that deals with criminal matters.

It is a tough call, but a relevant one, given that the U.S. Supreme Court is hearing arguments this morning in the case of Thomas Miller-El. (Scroll down a bit to get to the appropriate entry.)

Rather than answer Scott's question directly, I want to talk about the Fourth Circuit Court of Appeals a bit. The Fourth Circuit, which has jurisdiction over North Carolina, South Carolina, West Virginia, Maryland and Virginia, is extremely conservative. But judges who sit on that court really seem to base their decisions on the law, although I grant you that it is a most conservative reading of the law.

Contrast that court with the Fifth Circuit and the Texas CCA. These courts are simply pro-prosecution and anti-defendant, but they do not seem to base their hostility against the individual on any judicial philosophy. Rather, they seem to identify the result they want to reach and then fashion their opinions, however sloppily, to meet that result.

In my mind, both the Fifth Circuit and the Texas CCA are embarrassments, compared with the Fourth Circuit, which is merely objectionably conservative. This is why we probably will see, at some point in the next four years, a Supreme Court nomination come out of the Fourth Circuit and not the Fifth.

In any case, it's a good question that Scott asks. Drop him a line and weigh in!

Friday, December 03, 2004

Four and out

Football fans know that the term "four and out" refers to an offense that gets the ball, fails to make a first down, and has to punt.

Combined, the states of Kentucky, Texas, Pennsylvania and North Carolina went four and out this week.

That's right: We had four executions scheduled in four days and we got four stays. No additional executions are scheduled for December and -- if this holds -- this will be the first month since July 1994 that we did not have a single execution!

Folks, that's amazing.

The four scheduled executions this week were:

Thomas Bowling, Kentucky. Bowling received a stay some weeks ago.
Frances Newton, Texas. You've read all about her.
George Banks, Pennsylvania. He is severely mentally ill.
Charles Walker, North Carolina. In an unusual move, the North Carolina Supreme Court allowed a stay in his case to remain in effect.

Thursday, December 02, 2004


Harris County District Attorney Chuck Rosenthal is quite the character. He's the guy who tried to get the death penalty for Andrea Pia Yates, the woman who was convicted in connection with the drowning deaths of her children, after suffering from post-partum psychosis.

Now Rosenthal, according to these paragraphs out of the New York Times, is disappointed that his buddy and fellow Republican, Texas Gov. Rick Perry, didn't consult with him before granting Frances Newton a 120-day reprieve so that her guilt can be ascertained:

In an effort to sway the governor, Mr. Rosenthal said, he submitted an affidavit on Wednesday from the Texas Department of Public Safety saying that the test on the skirt, which it had originally performed for the trial in 1988, could not be duplicated today.

"Rick didn't call me," he said of the governor, a fellow Republican. "I kind of thought he would."

Wednesday, December 01, 2004

Newton gets a stay!!!

Gov. Rick Perry has accepted the Texas Board of Pardons and Paroles and granted Frances Newton a 120-day reprieve so that her lawyers can continue to investigate her case.

This is wonderful news. There will be no execution tonight.

Newton update

Late yesterday, the Fifth Circuit Court of Appeals declined to halt today's scheduled execution.

That means Newton has two remaining venues for relief: the U.S. Supreme Court and Texas Gov. Rick Perry, who could accept the Texas Board of Pardons and Paroles' recommendation for a stay.

Perry likely will not take action until the U.S. Supreme Court acts. And the U.S. Supreme Court likely will not release its decision until late this afternoon.

This means that we probably will not know the outcome until around the time of Newton's scheduled execution -- 6 p.m. Texas time.

An African American radio network is going a show on Newton's case at noon central time, 1 p.m. east coast time. You can listen over the Internet by going here.