Progress in Alabama

From this morning's Birmingham News:

Results of a poll released Thursday show that 57 percent of Alabamians surveyed support a suspension of the death penalty while questions of fairness and reliability are studied.

Less than half, 47 percent, believe the death penalty is applied fairly in the state, and 80 percent think an innocent person could be executed, according to the poll of 863 likely voters statewide. It was conducted earlier this month by the Alabama Education Association's Capital Survey Research Center.

To read the whole story go here.

Amnesty International has a blog!

Two blogs, actually. One on the death penalty, which can be found here, and one opposing torture/Guantanamo Bay, etc. You can find that one here.

China to give increased scrutiny to death penalty

My friend Karl Keys directed me to this story. It seems China is going to start giving enhanced review to death penalty cases. This comes as Congress is considering the afore-mentioned Streamlined Procedures Act, which would, in essence, gut the whole concept of federal habeas review.

When even China is marching towards greater protections to ensure against killing the innocent is the Steamlined Procedures Act all that smart of a thing to do?

Here's part of the story:

BEIJING, July 23 -- Courts at all levels have been ordered to set tougher procedural standards for trials involving the death penalty - a step legal experts have hailed as a sign that China will reduce its use of capital punishment.

"Every procedure of the first trial, second trial and retrial, as well as the reviewing of the death penalty, must be rigidly executed," Cao Jianming, vice-president of the Supreme People's Court (SPC), said at a recent seminar for senior justice officials in Dalian in Northeast China's Liaoning Province.

Courts are now also being urged to examine evidence more carefully to avoid incorrect death sentences, he said.

"Lessons should be learnt from trials to perfect the system in the area of capital punishment," the vice-president said.

"Cao's speech indicates that the nation plans to decrease the number of capital punishment sentences in order to follow the policy to 'kill fewer, kill carefully'," Chen Xingliang, a law professor at Peking University, said.

Recent examples such as the case of She Xianglin, who was wrongly convicted and served 11 years in prison for murder, and the unjust murder case of Nie Shubin have widened debate over the possibility of abolishing the death penalty in China.

To read the whole story go here.

Turning reason on its head

Ran across this letter to the editor in today's New York Times:

To the Editor:

That Larry Griffin may have been executed by mistake in Missouri should give us pause ("In a 1980 Killing, a New Look at the Death Penalty," news article, July 19). After acknowledging the advantage such a revelation would provide death-penalty opponents, Joshua Marquis, a pro-death penalty prosecutor, points out that "innocence is very different than saying this guy maybe didn't do it."

His implication is that we need not worry about the case unless it provides us with indisputable proof of innocence.

This turns reason on its head; the demand for absolute certainty should be up front when someone is sentenced to death.

The real travesty is that defendants are often sentenced to death with evidence that yields something less than full certainty. Experience has shown that all too often we are missing that mark.

Edwin Colfax----Chicago, July 19, 2005

The writer is director, Death Penalty Education Project, Center on Wrongful Convictions, Northwestern University School of Law.

Executing Atkins?

Remember Atkins v. Virginia? That's the historic U.S. Supreme Court ruling that outlawed the execution of people with severe mental retardation.

Strange thing is, even though Atkins won, the state of Virginia is still trying to execute him:

At 18, Daryl Atkins had racked up a childhood of failures. He flunked out of second grade, barely made it through 4th, and took home a heavy load of D's and F's on his report cards. By high school, a teacher decided to put the books aside to focus him on more practical skills: reading menus, understanding road signs.

This was around the time that Atkins failed driver's education and did so poorly at football practice that he was kicked off his high school team in Hampton, Va. The teenager regularly confused his right with his left and had trouble learning plays, according to a recent psychological report.

Now, a decade later, there is a fierce debate about whether these details and others demonstrate that Atkins is mentally retarded. Prosecutors argue that he is not, with one of their experts pointing out his use of such words as parab le and deja vu and his recitation of the mathematical value of pi.

At a trial that will start Monday, a jury in York County will decide the issue, knowing that a death sentence hangs in the balance. Unless Atkins is deemed retarded, he faces execution by the State of Virginia.

To read the whole story, go here.

When will they ever learn?

Massachusetts Gov. Mitt Romney, a likely candidate for the 2008 Republican presidential nomination, is not getting very good ink in response to his efforts to reinstate the death penalty in his state. Here's an example:

No guarantees in life - or in death penalty

Gov. W. Mitt Romney told lawmakers Thursday that his proposal to reinstate the death penalty comes with a guarantee that no innocent person would ever be executed in Massachusetts if his bill becomes law.

"This is as foolproof a death penalty as exists, and you will not have false convictions and false executions under this bill," the governor told the Judiciary Committee. "This won't happen."

If lawmakers believe that, we've got a tunnel in Boston we could sell them.

Since 1973, 119 convicted murderers in 25 states have been freed after evidence surfaced that they had been wrongly convicted, according to the Death Penalty Information Center.

Earlier this month, a prosecutor in Missouri said she will reopen the case of convicted murderer Larry Griffin after receiving evidence of his possible innocence - 10 years after he was executed by lethal injection.

Romney believes his bill has safeguards to prevent such mistakes, including a requirement for conclusive scientific evidence such as DNA analysis.

The death penalty, however, can never be made foolproof, as Romney later acknowledged when pressed by lawmakers.

A commission created by George Ryan when he was governor of Illinois concluded in 2002 that "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death."

2 years ago, Romney vetoed funds approved by the Legislature to create a Department of Forensic Sciences - just the type of department that would be necessary to provide the strict burden of proof that the governor promises in his bill.

In addition, the state's crime laboratory, medical examiner's office and local police departments are not funded at the levels needed to ensure that only the guilty are executed.

This newspaper has long opposed the death penalty, and will continue to speak out against it each time an attempt is made to reinstate it in Massachusetts. The death penalty does not deter violent crime; it unfairly targets blacks and other minorities, and it relies on a judicial system that, while the best in the world, is not perfect.

There are no guarantees in life - or in the death penalty.

'We have become what we hate'

Ran across this letter to the editor in the Rutland Press in Vermont. It is in response to the federal death sentence handed down to Donald Fell. Vermont becomes the third state (joining Massachusetts and Iowa) that has recently seen a federal death sentence handed down even though it has no state death penalty statute.

Will we rest better if Fell dies?

Today, the jury sentenced Donald Fell to death for the brutal murder of Tressa King, an innocent woman with a family who loved her, who was just going to work.

Will we rest better now because we will kill Fell? Is his death about punishment or vengeance? Those of us who oppose the death penalty have sympathy for King's family and are horrified by the violent way she died.

My opposition to the death penalty automatically makes me an enemy of King's family. My empathy for her and sorrow for her family are lost in a fierce debate over whether the death penalty is a viable choice in a civilized society.

It is the same old battle cry. We kill to teach that killing is wrong, and we all become complicit in Fells' execution because we live in the state. My money will kill Fell. People will not stop killing people because we kill Fell.

What is worse is that those who imposed the death penalty won't have to be the ones who kill him. Someone else will do that for them.

We have become the thing we hate and that scares me.

Sandra Nall----Montpelier

As a minister in Texas' prison system, Reverend Carroll Pickett was present at 95 executions in Texas, including one I was unfortunate enough to witness. His book Within These Walls: Memoirs of a Death House Chaplain, will be published later this month. An interesting op-ed by Rev. Pickett just popped up in my email box. It starts off like this:

NINETY-FIVE times, I personally walked a man who was sentenced to die to the death chamber in Texas. From the very first person executed by lethal injection, through 16 years of walking those eight steps from the holding cell in the death house to the impeccably clean gurney in the death chamber, I led a man - some were older, some convicted in their teens, some mentally ill, some very hardened by life and, I fully know, some who were innocent.

Each one was different. They were brought to my unit early in the morning, usually, to be held for death at midnight, so I was with them for 18 hours, and in some cases even longer if their cases went to appellate courts and stays were held until 3, 4 or 5am - or the latest which was 6.20am the next day.

More than 200 men came to the death chamber in my time as chaplain there, and of those, 95 were murdered by the state in the name of "justice", but in all reality, it was "retaliation" or "punishment" or simply "murder by law".

During those many hours I spent talking with, mostly listening to, the men who would die after midnight when needles filled with three chemicals were inserted into their bodies, there was one question that was asked by many of those waiting to die: "How can we say that killing is wrong if we continue killing in the name of the state?"

To read the whole thing, go here.

Bringing back Napolean Beazley

Napolean Beazley is one of the last juvenile offenders to be executed by the state of Texas before the U.S. Supreme Court outlawed the death penalty for juveniles.

Just this week, a new play chronicling the life and death of Napolean opened in Austin. The Austin Chronicle has an amazing story about the play. It's a bit of a long read (and certainly too long to post here) but I highly recommend it. I don't want to do the piece a disservice by excerpting from it. So go here.

Breaking news

Senate Judiciary Committee markup on the so-called Streamlined Procedures Act, that horrid piece of legislation that essentially would preclude serious federal habeas review, has been delayed.

In plain English: This means the bill's opponents have, for now, stopped it in its tracks. We're not out of the woods yet. But we have some breathing room.

More on Larry Griffin

Editorials and op-eds continue to flood the zone on Larry Griffin, the Missouri man who was executed in 1995 for a crime he probably did not commit. Weighing in today is columnist Bob Herbert of the New York Times:

July 14, 2005 - If Larry Griffin were being tried today for the murder of Quintin Moss, he would almost certainly be acquitted. The evidence is overwhelming that he did not kill Mr. Moss.

But Mr. Griffin is not being tried today. He has already been executed for the murder.

While significant, this development is not that much of a surprise to those who understand that human beings are fallible and that much of the criminal justice system in the United States is a crapshoot. Whether it is this case or some other, it is inevitable that we will learn of someone who has been executed for a crime that he or she did not commit.

To read the entire column, go here.

Linking Griffin to the Streamlined Procedures Act

Yesterday we talked about the 1995 execution of Larry Griffin in the state of Missouri. A district attorney has re-opened the investigation after evidence emerged that Griffin may have been innocent.

On Monday we talked about the Streamlined Procedures Act, a measure pending in Congress that would radically curtail federal habeas appeals and lead to a sharp increase in the execution rate.

Today, the St. Louis Post-Dispatch ties the two issues together:

Reopening Griffin case may sway debate over executions

By Terry Ganey
Of the Post-Dispatch

When death penalty advocates appear before Congress, they often justify their position by saying no innocent person has ever been executed in the United States.

Doubt about that was raised Tuesday in St. Louis with the release of a new report saying Larry Griffin was innocent of the drive-by shooting of Quintin Moss for which Griffin was executed 10 years ago.

The report raised enough questions to persuade Circuit Attorney Jennifer Joyce to reopen the investigation. Although it will be months before she can issue findings, death penalty opponents are expected to raise Griffin's execution in arguments against capital punishment.

That could come as early as today when the Senate Judiciary Committee considers a bill that would streamline federal appeals of state death penalty cases.

Barry Scheck, a lawyer for one of the witnesses to the drive-by shooting in which Moss was killed, is scheduled to testify at the hearing.

"If this bill passes, a number of innocent people will be executed,"
predicted Scheck, who represents Wallace Conners, who was wounded in the drive-by shooting.

To read the entire article, go here.

We're sorry, Larry

Since 1976, 972 people have been executed in the U.S. One hundred and nineteen people have been released from death rows after evidence of their innocence emerged.

But the question that is frequently asked is this: Have we executed innocent people? Academic experts within the abolition community think that around 25 innocent people may have been executed. If that number is correct, that would be about 2.5 percent of the total.

But the truth is, we lack hard, conclusive proof. Once a person is executed, the abolition movement tends to move on to the next case. Investigations into whether or not the state got the right guy are rare.

But now comes the NAACP Legal Defense Fund and the St. Louis Post-Dispatch. The following was reported this morning:

Was the wrong man executed?

Up to the moment that lethal injection took his life in the early morning hours of June 21, 1995, Larry Griffin insisted he was innocent of a drive-by murder in St. Louis.

Now new disclosures support his claim, and St. Louis Circuit Attorney Jennifer Joyce has reopened an investigation of the case.

A man wounded in the same drive-by shooting says Griffin was not involved.
And the 1st police officer on the scene has given a new account that undermines the trial testimony of the only witness who identified Griffin as a killer.

A year-long investigation financed by the NAACP Legal Defense and Educational Fund unearthed the disclosures. The project's lawyers and investigators believe Griffin was innocent of the crime for which he was
executed: the murder of 19-year-old Quintin Moss.

Joyce has assigned 2 top lawyers to investigate the case as if it had just happened. Moss, a drug dealer, was murdered 25 years ago this summer.

The NAACP project's lawyers and investigators believe Griffin should be exonerated. In addition, they have supplied Joyce with the names of 3 men they suspect were responsible for Moss's murder.

Samuel Gross, a University of Michigan law professor who supervised the investigation, said Griffin's case was the strongest demonstration yet of an execution of an innocent man. If true, it would give more credence to death penalty opponents who contend that because human beings make mistakes, the capital punishment system could produce deadly errors.

"There is no real doubt that we have an innocent person," Gross said. "If we could go to trial on this case, if there was a forum where we could take this to trial, we would win hands down."

The report comes at a time when Congress is considering legislation to streamline federal appeals of state-imposed death sentences. Joshua Marquis, a prosecutor and board member of the National District Attorneys Association, has told a House panel considering the legislation that death penalty opponents cannot point to a single case in which a demonstrably innocent person has been executed in the modern history of American capital punishment.

To read the whole story, go here.

Stop this bill

This Wednesday, the Senate Judiciary Committee is scheduled to hold a hearing on a bill called the "Streamlined Procedures Act."

In short, the Streamlined Procedures Act would radically, radically increase the number of executions in the United States. It would practically eliminate federal habeas review in both death penalty and non-death penalty cases. It would apply retroactively to pending cases. Lawyers say it would, in essence, overturn dozens of U.S. Supreme Court cases. One lawyer called it “breathtakingly meanspirited.”

Compared to this bill, the 1996 Anti-Terrorism and Effective Death Penalty Act practically looks like progressive legislation!

On Sunday, the Washington Post ran the following editorial opposing this measure:

Stop This Bill

CONGRESS HAS a novel response to the rash of prisoners over the past few years who have been exonerated of capital crimes after being tried and convicted: Keep similar cases out of court. Both chambers of the national legislature are quietly moving a particularly ugly piece of legislation designed to gut the legal means by which prisoners prove their innocence.

Habeas corpus is the age-old legal process by which federal courts review the legality of detentions. In the modern era, it has been the pivotal vehicle through which those on death row or serving long sentences in prison can challenge their state-court convictions. Congress in 1996 rolled back habeas review considerably; federal courts have similarly shown greater deference -- often too much deference -- to flawed state proceedings. But the so-called Streamlined Procedures Act of 2005 takes the evisceration of habeas review, particularly in capital cases, to a whole new level. It should not become law.

For a great many capital cases, the bill would eliminate federal review entirely. Federal courts would be unable to review almost all capital convictions from states certified by the Justice Department as providing competent counsel to convicts to challenge their convictions under state procedures. Although the bill, versions of which differ slightly between the chambers, provides a purported exception for cases in which new evidence completely undermines a conviction, this is drawn so narrowly that it is likely to be useless -- even in identifying cases of actual innocence.

It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R-Calif.) in the House and Jon Kyl (R-Ariz.) in the Senate, would impose onerous new procedural hurdles on inmates seeking federal review -- those, that is, whom it doesn't bar from court altogether. It would bar the courts from considering key issues raised by those cases and insulate most capital sentencing from federal scrutiny. It also would dictate arbitrary timetables for federal appeals courts to resolve habeas cases. This would be a dramatic change in federal law -- and entirely for the worse.

The legislation would be simply laughable, except that it has alarming momentum. A House subcommittee held a hearing recently, and the Senate Judiciary Committee is scheduled to hold one and then mark up the bill this week. Both Judiciary Committee chairmen surely know better. House Judiciary Chairman F. James Sensenbrenner Jr. (R-Wis.), after all, has fought for better funding and training for capital defense lawyers. And Senate Judiciary Chairman Arlen Specter (R-Pa.) has long opposed efforts to strip federal courts of jurisdiction over critical subjects. Neither has yet taken a public position on the bill. Each needs to take a careful look. It is no exaggeration to say that if this bill becomes law, it will consign innocent people to long-term incarceration or death.

Analyzing the Fifth Circuit

The Houston Chronicle recently had an interesting article pointing out that the Fifth Circuit Court of Appeals is, essentially, a lawless court when it comes to the death penalty:

5th Circuit Court rules in its own way
Its decisions have a history of defying the Supreme Court

By HARVEY RICE
Copyright 2005 Houston Chronicle
- - - - -
DEFIANT HISTORY
In at least six cases in the past five years, the U.S. Supreme Court has rebuked the 5th U.S. Circuit Court of Appeals for not following the law laid down by the higher court in death-penalty cases.

• June 2001: Supreme Court overturns the 5th Circuit Court for the second time in the case of Texas killer Johnny Paul Penry. The high court said in a
6-3 ruling that the lower court failed to enforce the spirit of its 1989 decision in the same case requiring juries to consider evidence that could lead to a life sentence rather than death.

• February 2003: The court finds in an 8-1 decision that the 5th Circuit should have given Thomas Miller-El a chance to appeal his capital murder conviction. The court explicitly outlines how the 5th Circuit should analyze the case.

• February 2004: Citing what it calls prosecutorial misconduct, the Supreme Court throws out the sentence of Delma Banks Jr. Ruling 7-2, the court says Bowie County prosecutors allowed two key witnesses to lie to the jury and did not tell the defense that one witness was a paid police informant and the other a two-time felon whose arson charge was dropped in exchange for his testimony.

• June 2004: The Supreme Court rejects a method of review devised by the 5th Circuit Court for cases in which the accused has low intelligence. In a 6-3 ruling in the case of Robert Tennard, the court says the test "has no foundation in the decisions of this court."

• June 15: The Supreme Court again reverses the 5th Circuit in the Miller-El case, saying in a 6-3 ruling that the lower court's reasoning "blinks reality." During oral arguments, the justices express displeasure that the 5th Circuit adopted the reasoning of the lone dissenting opinion in the Supreme Court's previous rebuke to the lower court.
- - - - -

Even with its reputation for being unfriendly to death penalty appeals, the 5th U.S. Circuit Court of Appeals was expected to follow directions last year when they came from the U.S. Supreme Court.

The high court had issued at least three opinions chastising the lower court for failing to abide by previous rulings. Most recently, in an 8-1 decision in 2003, it had lambasted the appeals court for rejecting an appeal by condemned murderer Thomas Miller-El and sent it back for a new hearing.

So observers were floored when the 5th Circuit issued a new opinion in the Miller-El case that ignored a majority ruling spelling out how the lower court should rule.

Even more surprisingly, the lower court used the language of the lone dissenting justice, Clarence Thomas, in some cases lifting entire paragraphs without attribution.

That instance convinced many that the lower court had crossed a line and was openly defying the Supreme Court.

"It's extraordinary," said Neil Siegel, assistant professor of law and political science at Duke University. "They got smacked down once and they came back with what was verbatim from the sole dissent. It appears to be an act of outright defiance."

....

"The 5th Circuit is more out of step than any circuit in the country when it comes to the death penalty," Siegel said. "You just don't see anything like this in any other court. The way they differ from other courts of appeal is the aggressiveness and the willfulness in capital cases.

"Part is ideology and part is willfulness, a refusal to get the message from the Supreme Court," he said.

To read the entire article, go here.

New web site

There's a great new web site on the death penalty. Check it out here.

Sandra's resignation

NCADP's statement:

NCADP MARKS RESIGNATION OF JUSTICE O’CONNOR

July 1, 2005 – The National Coalition to Abolish the Death Penalty issued the following statement Friday by Executive Director Diann Rust-Tierney:

“Justice Sandra Day O’Connor has played an important role as the Supreme
Court has begun to grapple more directly with the unfairness in the administration of the death penalty. She often cast the pivotal vote in close cases.

“Justice O’Connor expressed concern about the risk of innocent people being sentenced to death. Addressing a group of women lawyers in Minnesota, she once said, ‘If statistics are any indication, the system may well be allowing some innocent defendants to be executed. More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.’”