PERRY COMMUTES FOSTER!

Perry commutes sentences of man scheduled to die Thursday

By MICHAEL GRACZYK
Associated Press Writer

HUNTSVILLE, Texas — Gov. Rick Perry accepted a recommendation from the state parole board and said Thursday he would spare condemned prisoner Kenneth Foster from execution and commute his sentence to life.

Foster had been scheduled to die Thursday evening.

"After carefully considering the facts of this case, along with the recommendation from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Perry said in a statement.

"I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously and it is an issue I think the legislature should examine."

The seven-member parole board had voted 6-1 to recommend the commutation.

Perry was not obligated to accept the highly unusual recommendation from the board whose members he appoints. The commutation is the first in his more than eight years in office this close to an actual execution. The board decision was announced about seven hours before Foster was scheduled to die. Perry's announcement came about an hour later.

Foster was the getaway driver and not the actual shooter in the slaying of a 25-year-old man in San Antonio 11 years ago.

Foster acknowledged he and his friends were up to no good as he drove them around San Antonio in a rental car and robbed at least four people before the slaying of Michael LaHood Jr.

"It was wrong," Foster, 30, said recently from death row. "I don't want to downplay that. I was wrong for that. I was too much of a follower. I'm straight up about that."

Their robbery spree, while they were all high on alcohol and marijuana, turned deadly when Foster followed LaHood and his girlfriend to LaHood's home about 2 a.m. Aug. 15, 1996. One of Foster's passengers, Mauriceo Brown, jumped out, walked up to LaHood, demanded his wallet and car keys, then opened fire when LaHood, 25, couldn't produce them. LaHood, shot through the eye, died instantly.

Brown ran back to Foster's car and they sped away. Less than an hour later, Foster was pulled over for speeding and driving erratically. Foster, Brown, Dwayne Dillard and Julius Steen — all on probation and members of a street gang they called the Hoover 94 Crips — were arrested for LaHood's slaying.

Brown and Foster, tried together, were convicted of capital murder and sentenced to death. Foster was set to die 13 months after Brown, 31, was strapped to the same death chamber gurney in Huntsville for lethal injection.

Foster's execution would have made him the third Texas prisoner executed in as many days and the 24th this year in the nation's most active capital punishment state. On Wednesday evening, John Joe Amador, 32, was put to death for the slaying of a San Antonio taxi driver 13 1/2 years ago.

Foster's scheduled execution piqued death penalty opponents who criticized his conviction and sentence under Texas' law of parties, which makes non-triggermen equally accountable for the crime. Foster would join a number of other condemned prisoners executed under the statute, including one put to death earlier this year.

"This is a new low for Texas," said Larry Cox, executive director of Amnesty International USA, a human rights organization that opposes the death penalty in all cases. "Allowing his life to be taken is a shocking perversion of the law."

Foster's lawyers were arguing in the courts that statements from Dillard and Steen, who were in Foster's car that night, clarify and provide new evidence that support Foster when he says he didn't know Brown was going to try to rob and shoot LaHood.

"I didn't kill anybody," Foster insisted from death row. "I screwed up. I went down the wrong path. I fault myself for being in this messed-up system."

Foster said he was some 80 feet away from the shooting.

"It's hard for you to anticipate how Brown is going to react," Foster said. "Texas is saying flat out: You should have known better.

"In life, we have hindsight. Texas is saying you better have foresight. They're saying you better be psychic."

Dillard now is serving life for killing a taxi driver across the street from the Alamo two weeks before LaHood's slaying. Steen testified at Brown's trial and received a life sentence in a plea bargain.

Brown testified at his trial the shooting was in self-defense, that he believed LaHood had a gun. Authorities, however, never found another weapon near LaHood's body. Foster did not testify.

"I thought what (Brown) said was good enough," he said from death row.

Mike Ramos, among the Bexar County prosecutors handling the case when it went to trial, said he found Foster's claims unbelievable and was irritated by a publicity effort to spare Foster.

"When you let somebody out of your car with a loaded handgun, what do you expect?" Ramos said. "If he didn't realize it could happen, I think he's a liar."

Last weekend a group of Foster supporters picketed outside an Austin church Gov. Rick Perry attends.

"These guys are rewriting history," Ramos said. "He was far from any kind of angel they're trying to portray."

Ramos said it was clear to him that Foster was "the puppet master pulling all the strings" during the robbery spree.

Nico LaHood, whose brother was killed, said Wednesday he was frustrated that people were willing to believe only Foster's story, which he called "ridiculous and not true."

"I don't know what dynamics are going on that allow us to make the person who is the wrongdoer to become the victim in this case," LaHood said. His brother, he said, was being "lost in the whole thing."

On Wednesday, Amador asked for forgiveness for himself and peace "for people seeking revenge toward me," then was put to death for the fatal shooting of San Antonio taxi driver Mohammad Reza Ayari.

Another execution, the first of five scheduled for September in Texas, is set for next week when South Carolina native Tony Roach faces injection Wednesday for the strangling of an Amarillo woman, Ronnie Dawn Hewitt, 37, during a burglary of her apartment nine years ago.

___

On the Net:

Texas Department of Criminal Justice execution schedule http://www.tdcj.state.tx.us/stat/scheduledexecutions.htm

Kenneth Foster http://www.freekenneth.com

Race & the death penalty in the late Texas summer of 2007

Just for the fun of it, here is the ethnic breakdown of recent and scheduled Texas executions:

Lonnie Johnson-Black
Kenny Parr- Black/Hispanic
Johnny Conner- Black
Daroyce Mosley- Black
John Amador- Hispanic
Kenneth Foster- Black
Tony Roach- White
Joseph Lave- Black
Clifford Kimmel- White
Michael Richards- Black
Carlton Turner- Black

I'm not saying anything, but...

[h/t Z]

The life of Kenneth Foster Jr.

I'll be out of town beginning Wednesday, so I won't be able to attend. But if you're in the Washington, D.C. area, please consider stopping by and supporting this event.

This comes from Art Laffin, longtime death penalty opponent and the family member of a murder victim:


SAVE THE LIFE OF KENNETH FOSTER!
Abolish the Death Penalty!

Vigil at Supreme Court on Wednesday, August 29, from 4:30 - 6:00 p.m.

Dear Friends,
As a murder victim family member who opposes the death penalty, I'm writing to invite you to join me and other death penalty abolitionists in helping to save the life of Kenneth Foster, who is scheduled to be executed in Texas on Thursday, August 30, at 6:00 p.m. (See below more info about Foster's case).

I also ask you to oppose two other scheduled executions in Texas this week: Daroyce Mosley--August 29, and John Amador--August 29.

Kenneth Foster is innocent of the murder of Michael LaHood. The state of Texas has admitted that Foster did not commit the murder. LaHood was killed by Maurecio Brown, who has already been executed. The murder of LaHood occurred when Brown left the car that Foster was driving and got into an altercation with LaHood. Foster had no prior knowledge that Brown would carry out this killing. But under the state's "Law of Parties" Foster was convicted and sentenced to die. We can not let this happen.

All over Texas people are organizing and demanding that Foster's life be spared and that he be pardoned. Foster is now on a hunger-strike to protest his execution. According to Democracy Now, Foster and another prisoner, John Amador, are refusing all food since Wednesday, August 23. Both men said they will commit to a protest of passive non-participation in their executions. In a statement released on August 22 the men said: "We will not walk to our executions and we will not eat last meals. We will not give this process a humane face."

What can we do here in the D.C. area? I would like to invite you to a vigil at the Supreme Court on Wednesday, August 29 from 4:30 - 6:00 p.m. to call on the Supreme Court Justices to grant a stay of execution for Kenneth Foster as well as for John Amador.

Thank you for doing what you can to save Kenneth Foster's life and to stop state-sanctioned homicide.

In peace and hope,

Art Laffin

If you'd like to write Texas Gov. Rick Perry a letter opposing Foster's execution, you can do so here. Perry has the option of issuing a 30-day stay; only he and the Texas Board of Pardons and Paroles, acting in concert, can commute Foster's sentence.

AGAG A-Gone!

The celebrating has begun. Attorney General Alberto Gonzales, Aka AGAG, has resigned.

With a tip of the hat to positive universe, we bring you the following links:

GONZALES RESIGNATION/CELEBRATION DAY

The Protect Gonzales Act of 2007
http://www.thenation.com/doc/20070827/williams

You may be glad to keep watching Bill of Rights Defense Committee daily, throughout the day. Former Chairman of Amnesty I/USA, Joe W. (Chip) Pitts is Founder President of the Board
http://www.bordc.org/news/

Alberto Gonzales vs. Alexander Hamilton
By Nat Hentoff
http://www.jewishworldreview.com/cols/hentoff062507.php3

We’ve Been Overtaken by a Cult
Sy Hersh on Alberto Gonzales
http://www.democracynow.org/article.pl?sid=05/01/26/1450204

June 28 2007 Gonzales “Death Cult” (Harpers Mag. quoting the Atlantic Monthly classic article of August 2003 http://harpers.org/archive/2007/06/hbc-90000398

Bill Moyers Interviews Jon Stewart on Gonzales, et al
http://www.truthdig.com/avbooth/item/bill_moyers_interviews_john_stewart/

Alberto Gonzales: Tip of the Iceburg
http://marjoriecohn.com/2007/04/alberto-gonzales-tip-of-iceberg.html

Older yet especially relevant
Here is perhaps the most startling to date
http://www.theatlantic.com/doc/200307/berlow
(be sure to look up the Letters to the Editor which followed this mind-boggling, well-researched article still quoted classic on Gonzales–with plenty of clues for what would come with his nomination to US AG)

Gonales Won’t Repudiate Torture Memo
http://www.abpnews.com/www/188.article.print

Alberto Gonzales Archives
http://dir.salon.com/topics/alberto_gonzales/

Texas 400

Johnny Ray Conner became the 400th condemned inmate Texas has put to death in the “modern era.” Like many who came before him, Conner had a plausible claim of factual innocence and was convicted on facts that could have just as well produced a not guilty verdict.

Unlike most before him, a Texas federal district court determined Conner's had received an unfair trial and should be retried. Despite the district court's determination that Conner's received an unfair trial, the Fifth Circuit, as it often does, determined Conner's should die.

Conner was killed for for the 1998 shooting death of Houston convenience store clerk Kathyanna Nguyen. She was murdered during a robbery. Three people had identified Conner as the shooter, although each gave identification statements at odds with the others. Three other people failed to identify Conner as teh shooter.

Texas resumed executing inmates on Dec. 7, 1982 when it killed Charlie Brooks ushering in Texas’s “modern era” of executions. Conner becomes the 21st condemned inmate to be put to death this year in Texas; there are 3 more executions set for this month and 5 more in September in Texas. Conner becomes the 161st condemned inmate to be put to death since Rick Perry became Governor of Texas in 2001. The figure represents the most executions carried out during the tenure of any single state governor in American history. Conner becomes the 35th condemned inmate to be put to death this year in the USA and the 1092nd overall since the nation resumed executions on January 17, 1977.

400th Texecution 90 minutes away

This just in over on the Abolish list with regard to tonight's scheduled execution by the people of Texas of Johnny Conner in revenge for the murder of Kathyanna Nguyen:

The application for stay has been denied by the US SC as well as the

petition for writ of cert. Read it here:

http://www.supremecourtus.gov/orders/courtorders/082207pzr.pdf

That is to be expected. It's Texas. Milestones being what they are, this one is just a small bump on the road to Abolition - a road that gets shorter with each and every unnecessary and wasteful execution. But still we must pause to consider the numbers. If it goes forward this will be the 1092nd prisoner killing in the US under current death penalty laws, and the 400th in Texas. More than one third from one state. and 25% of those from one county - Harris County.

If there is a point to be made, it is in those numbers. Texas continues to have one of the highest rates of violent crime per capita. BUT, I'm just pausing to note a milestone....

Thanks to all who are out in protest tonight in Texas and to those who continue to weigh in against executions everywhere....

--abe@abolition.org

A video challenge: Kenneth Foster

An interesting, and experimental, development in the efforts to save Kenneth Foster life, a Youtube Petition Campaign. In a nutshell - it is a challenge to send a video message calling on Governor Perry to do the right thing and spare Kenneth Foster's life. As explained below:

For more information on upcoming events please visit Kenneth's Blogspot and website. Other information can be found by visiting the Texas Moratorium Network. You can take action by writing Governor Perry, Members of the Board of Pardons and Paroles and Members of the Texas Legislature to Stop the Execution of Kenneth, here. The NCADP Execution alert for Kenneth Foster and Amnesty International's Execution alert provide excellent background information and steps you can take.

[UPDATE]
The video messages are being compiled here.






[h/t the Persian Cowboy]

The blog may be silent...

...for a few days, unless my friend and fellow blogging cohort Karl steps in.

As for me, I am going to New Orleans.

Some things, you have to see for yourself.

We got letters

If it seems like we've been blogging quite a bit on Alabama lately, well, it's because there's a lot going on in Alabama.

Today we bring you a rather clever letter to the editor that appeared in the Birmingham News. It is written by Esther Brown, who is with our Alabama affiliate, Project Hope to Abolish the Death Penalty:

Danny Lemley, a former assistant district attorney now in private practice, said: "Luther (Williams) is why they have the death penalty."

It is not too often I find myself in agreement with an assistant district attorney, former or still active, but Lemley hit the nail on the head with the above statement. Yes, Williams could indeed be a poster child for why we have the death penalty in Alabama: He is black and poor, and the victim was white. Not only that, but Williams himself was an innocent victim as a child when he was abandoned by his parents. But what does self-righteous, vengeful Alabama care about that? Add to that Williams' being in the ninth grade at age 20. And people don't think there are mental retardation issues?

We all love to talk about justice, but all too often when we do, we mean just us. Justice means a level playing field. In this case, as in all the other death penalty cases, it means enough money for an adequate defense and all necessary tests. If Alabama cannot afford that, we cannot ethically afford the death penalty, unless we want to do as one of my legislators suggested to me - take them out and shoot them all. Now, why does that remind me of Alabama's history?

Esther Brown

Executive director, Project Hope to Abolish the Death Penalty
Chairwoman, Alabama NAACP Death Penalty/Moratorium Committee

Thanks, Esther!

Aghast over AGAG

By AGAG, of course, we mean Attorney General Alberto Gonzales.

And aghast we are over the proposal to further undermine the ability of death-sentenced inmates to pursue meaningful habeas appeals.

Today we take the unusual step of publishing an entire op-ed on this blog. The op-ed, which appears in today's Los Angeles Times (hat tip, Steve Hall over at Stand Down Texas) is written by Duke University Law Professor Erwin Chemerinsky.

If you're wondering why all the buzz over the proposed "opt-in" regulations being bandied about by the Department of Justice, Chemerinsky does a better job than anyone else when it comes to laying it out in plain English:

Don't rush to execution
California must reject the U.S. attorney general's effort to bend death penalty rules.

By Erwin Chemerinsky
Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court. State Atty. Gen. Jerry Brown should make clear that California wants no part of this.

To understand what's going on here, you need a little background.

Let's say you were convicted of murder in California. Generally, as soon as you have exhausted your appeals in state court, the clock starts ticking: You have one year to file a petition for habeas corpus in federal court. (A writ of habeas corpus is a request for federal court review of a conviction on grounds that a person is imprisoned in violation of the Constitution and laws of the United States.)

That one-year timeline was set by the Anti-terrorism and Effective Death Penalty Act, adopted in 1996. But that law also allows a shorter time limit -- six months -- in death penalty cases.

Why less time for death penalty cases? It seems perverse, but Congress was actually trying to encourage states to provide lawyers for those on death row.

The Constitution guarantees the right to an attorney at trial when you're facing imprisonment or death and when you appeal your conviction at the state level. Beyond that, you're on your own. But the proceedings that come next -- collectively called "collateral review" -- can be crucial. It's at this stage, which includes habeas corpus petitions, that serious flaws in trial are often exposed, including the kind of mistakes that lead to the execution of innocent people.

Almost no states provide counsel in these crucial proceedings. So the 1996 law laid out this deal: If a state starts providing lawyers to capital defendants, it will get the benefit of a shorter, six-month statute of limitations.

So far, only Arizona has complied. Other states have decided that it's not worth the expense.

Enter Gonzales and the Patriot Act.

When it reauthorized the Patriot Act last year, Congress added a little-noticed provision that lets the attorney general, rather than federal judges, decide whether states are complying with the 1996 law. No one paid much attention, until now.

Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.

Those who favor the shorter statute of limitations are frustrated by the long delays before executions are carried out. But Gonzales' move is not about preventing delays; at most, it speeds things up by six months. It is about preventing some inmates from having a habeas corpus petition heard at all.

Death row prisoners will still be without free attorneys, trying to file habeas corpus petitions on their own. But that process is rife with complex rules and technicalities. The U.S. Supreme Court, for instance, ruled this year that the habeas clock is ticking even while an inmate is asking for the high court to review state post-conviction proceedings. So inmates have to file both requests at the same time.

All of this creates serious pitfalls even for well-informed and highly diligent prisoners. Six months leaves little room for error. Undoubtedly, many more habeas petitions, including highly meritorious ones, will wind up dismissed, deemed too late.

We now know of more than a dozen innocent people whose convictions were overturned on a writ of habeas corpus in recent years. Last year, John Grisham published a bestselling nonfiction book about one: Ron Williamson, whose death sentence in Oklahoma was overturned by a federal judge. Shortening the statute of limitations risks that others like him will never get their day in court.

Gonzales' certification can be challenged before a federal appeals court in Washington. But it shouldn't have to go that far. Brown should make clear that California will not invoke the six-month statute of limitations, no matter what Gonzales does.

There's a new blog in town

Kristin Houle is one of the hardest-working, most competent and effective people working to abolish the death penalty in the U.S. She recently became a Soros Justice Fellow, and is working in the office of the Texas Coalition to Abolish the Death Penalty to conduct public education around the intersection of the death penalty and severe mental illness.

That's a tough issue, and an important one. Estimates vary as to how many of the approximately 3,350 people on death rows across the U.S. are severely mentally ill, but most experts I know would put the figure at five to ten percent.

Kristin, who used to be Program Associate for Amnesty International USA's Program to Abolish the Death Penalty, is currently building a coalition of criminal justice reform, anti-death penalty, and mental health advocates to further explore this issue. She also is developing and disseminating resource and educational materials, reaching out to faith communities, waging clemency campaigns for severely mentally ill death row inmates, and promoting alternatives to the death penalty for mentally ill offenders.

Somehow, in addition to all this, she recently launched a blog called Prevention Not Punishment: Educating the public on the intersection of the death penalty and severe mental illness

Check it out. And go Kristen!

A deadly numbers game

Today we are turning the blog over to Dale Wisely, a clinical psychologist and volunteer with our Alabama affiliate, Project Hope to Abolish the Death Penalty. Dale also is the father of former NCADP Jesuit Volunteer Sarah Wisely. He has written the following excellent essay:

A DEADLY NUMBERS GAME

Dale Wisely, Ph.D.

In the news recently we learned that John Couey, convicted for the horrific abduction and murder of Jessica Lunsford in Florida, has been deemed by the courts not to be mentally retarded and so is now eligible for the death penalty. If I understand the news reports, his IQ score was measured at 78. In Florida, mental retardation depends, among other criteria, on a score below 70.

In 2004, the Supreme Court ruled in Atkins v. Virginia, ending the execution of those with mental retardation. The Court held that the execution of the mentally retarded violates the Eighth Amendment ban on cruel and unusual punishment.

As an opponent of capital punishment I applauded this decision, reasoning that it would prevent some executions, even at the risk of making the practice of the death penalty more palatable to the general public, and slowing progress toward banning it entirely. But I immediately predicted that this ruling was going to cause the courts a lot of problems. There are fundamental problems with a system that is willing to spare the mentally retarded and execute the not-quite-retarded. Morality aside, there is a problem in the nature of measuring something as complex and vaguely defined as human intelligence.

Psychology, psychiatry, and education have no consensus about a specific definition of mental retardation. We have a consensus about a broad definition. A definition adopted in 2002 by the American Association on Mental Retardation (AAMR) summarizes this consensus.

Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.

Absent from this definition are specific IQ scores and scores on measures of what psychologists and educators call "adaptive behavior." Some states have attempted to establish a definition of mental retardation. Some more or less follow the AAMR definition. Others supply a cut-off score, most commonly 70. States which have non-specific definitions, or none at all, will presumably rely on a body of evidence, including expert opinion. This will be messy and courts will have to weigh conflicting evidence with the inevitable error when courts weigh conflicting evidence

Those states that establish more specific criteria, including IQ score cut-offs, will have difficulties as well, as apparently was the case in Florida.

Mental retardation is often identified when a person is given a standardized intelligence test, the score or scores fall below a cut-off score, and when the person also has substantial deficits in the way he or she actually functions in everyday life ("adaptive behavior"). IQ cannot, under any circumstances, be precisely measured. An IQ is an estimate and an estimate, by the way, of only a sampling of a person's cognitive abilities. (This is even more true of measures of adaptive behavior.) Because of the unavoidable "error of measurement" in IQ and adaptive behavior measures, these scores are always accompanied by a range of scores in which the person might well have scored. In other words, an IQ is always plus-or-minus a certain number of points.

Take this hypothetical: Two equally culpable codefendants are tried for capital murder in a state that establishes a cut-off IQ of 70. Putting aside adaptive behavior, one defendant has an IQ of 71. The other has an IQ of 69. Any psychologist or educator will tell you that there is no meaningful difference in those scores. None. This would be true of three points, four, six, or eight points difference. So, are we going to execute one of these defendants and spare the other?

If, as I think most reasonable people agree, it is wrong to execute persons with mental retardation then the only right thing to do, barring abolition of the death penalty entire, is to refrain from executing any person for whom there is any amount of credible evidence supporting a claim of mental retardation.

All out for Kenneth Foster Jr.

If the death penalty represents flawed public policy -- and we happen to think it does -- then it follows that every execution is wrong, regardless of the circumstances.

But those of us who do this work know that every execution is not equal. Some executions offer up "teachable moments," moments that allow us to focus on a certain case to demonstrate how deeply flawed the death penalty system in the U.S. is.

The scheduled execution of Kenneth Foster Jr. three weeks from today is one of those moments.

Here's the beginning of a Democracy Now report that talks about this case:

Three weeks from today, a 30 year-old African American man on death row in Texas is scheduled to be executed. Kenneth Foster was sentenced to death ten years ago in a San Antonio court for the murder of Michael Lahood, a white man, in 1996. What makes Foster's case unique is that he didn't commit or plan the murder. Even the trial judge, the prosecutor, and the jury that sentenced him to die admit he never killed anyone.

Foster is scheduled to be executed under a controversial Texan law known as the law of parties. The law imposes the death penalty on anybody involved in a crime where a murder occurred. In Foster's case he was driving a car with three passengers, one of whom left the car, got into an altercation and shot a Michael LaHood dead. At the time of the shooting, Kenneth Foster was 80 feet away in his car. Since Foster's original trial, the other passengers have testified that Foster had no idea a shooting was going to take place.

On Tuesday, the Texas Court of Criminal Appeals denied death row prisoner Kenneth Foster's final appeal. In a six-to-three-decision the appeals court denied Foster's final writ of habeas corpus. Foster's last recourse is the Board of Pardons and Paroles, and Texas Governor Rick Perry. According to Foster"s criminal attorney, Keith Hampton, five of the seven board members must recommend clemency in order for Governor Perry to consider granting it. Kenneth Foster's scheduled execution date is August 30th.

To listen to the entire story, go here and click on "listen to segment."

Also, our colleagues over at Amnesty International have been blogging on this case. You can find a good post here.

You can see the web page created to support Foster here (check out the cool you tube video while you're there!)

Finally, go here to take action to save Foster's life. This is NCADP's action alert, which with a couple of clicks allows you to send a message on Foster's behalf.

The case of Luther Williams

What a long, strange summer it has been.

We've had three scheduled executions where substantial claims of innocence have been made (Troy Anthony Davis, who has been spared, at least temporarily; Darrell Grayson, executed by the state of Alabama last month; and Kenneth Foster, Jr., scheduled for execution later this month. We'll be talking about Foster's case a lot more in the coming days and weeks.)

There are also cases where innocence may or may not be in play, but it is fundamentally apparent that the inmate did not receive a fair trial and was not afforded full and meaningful access to appeals.

Which brings us to Luther Williams, scheduled to be executed on Aug. 23 by the state of Alabama. (Yes: Alabama is on a roll these days.)

Some facts pertaining to Luther's case:

The court denied funding for psychological testing and then paradoxically faulted Luther Williams for not providing the evidence that this testing would have revealed.

Pretrial investigation of guilt or innocence and mitigation was not done due to lack of funds.

Appropriate psychological testing had not been done due to lack of funds.

The two year window for presenting possible mental retardation was missed.

The prosecutor referred to Luther Williams as a "little black rat."

When it comes to the death penalty, it takes a lot to "one up" Texas. But as I say, Alabama is on a roll.

Intentional, willful, malicious prosecutions

An interesting op-ed in the New York Times draws the distinction between innocent mistakes and willful prosecutorial misconduct:

The Presence of Malice
By RICHARD MORAN
South Hadley, Mass.
LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.
My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.
Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.
Richard Moran is a professor of sociology and criminology at Mount Holyoke College.

Troy Davis -- BIG, BIG, BIG news

The Georgia Supreme Court agreed Friday to hear the discretionary appeal of Troy Davis, whose scheduled execution last month was put on hold by the state Board of Pardons and Paroles. The court has put it on its November calendar.

Davis’ lawyers have tried to present the new witnesses information to appeals courts, but they have refused to hear it —- in part due to a federal law designed to expedite death penalty appeals. Through the courts, Davis had asked a judge in Savannah to grant him a new trial, but the trial court judge, Judge Penny Haas Freesemann, held Davis’ new evidence did not meet the excrutiatingly high barriers for new trials.

The Georgia Supreme Court agreed Friday to consider that evidence. At the moment Troy’s execution date should be considered to be stayed indefinitely. Expect Amnesty International (who have been key in spearheading the activist efforts for Troy along with NCADP & its affiliate GCADP) to have more soon. Congrats to pro bono counsel, Arnold & Porter, as well as all those in Georgia behind the scenes who made this happen.

Spokesman for Death

Exciting times over at the ACLU blog. Here's an interesting entry:

Vernell Crittendon: Spokesman for Death Speaks for Himself
The New Yorker, a magazine well-known for publishing fiction, recently ran a story about a subject that is all too real. State-sponsored killing. The article is about Vernell Crittendon, the recently retired spokesperson for San Quentin State Prison in California. According to his job description, Crittendon was responsible for dealing with the condemned person before his execution and informing the press about the killing. As a matter of fact, he was responsible for just about everything related to California capital punishment process.

In some ways, Crittendon's story parallels that of a person convicted of a capital crime. The article reports that as a prison guard, he had done some terrible things. As a young corrections officer, he was responsible for beating black inmates under orders from white supervisors.

The most important trait shared by people on death row and Crittendon is the recognition that this final punishment does not need to continue. Even though he attempted to be detached from the execution process, Crittendon, who witnessed 13 executions, saw the senseless, pointless suffering. When Manny Babbitt, a Vietnam veteran who saved a life of a fellow soldier, was put to death, Crittendon thought, "Poor Manny." (Manny Babbitt's story can be seen on Freedom Files: Freedom to Live on ACLU.tv). He also recognized some of the factors that explain why many death-row inmates committed their crimes, stating: "I would never have chosen for my legacy, 'He put to death people who grew up in terrible, deprived circumstances and didn't have much chance.'"

Crittendon also witnessed the problems of carrying out the punishment. He watched as the gas chamber was ruled as cruel and unusual in California. He retired as the debate over the cruelty of lethal injection continues in California and elsewhere in the country. In fact, he saw how some inmates, including Manny Babbitt, suffer because of that flawed method.

Most of all, Vernell Crittendon, like many death row inmates, seeks redemption. He has participated in programs that try to keep youngsters out of prison. To reach this goal, he used inmates to talk to at-risk youth. He has learned that a person cannot be judged by a single bad deed.

As he struggles to "make sense of this thing," Crittendon comes to the conclusion many of us do — it is not possible to make sense of it. The story closes with Crittendon speaking in the third person as if to be further separated from the issue. He says, "if someone were to tell me tomorrow, 'Vernell there will be no more executions in the state of California,' Vernell would not be sad.'"

He speaks for many of us with that statement.

Regarding Kenneth Foster Jr.

This blog entry, found over at the Huffington Post, certainly speaks for itself:

Kenneth Foster, Jr.: An Innocent Man Texas Will Soon Execute
By Sean-Paul Kelley
Get to know this name: Kenneth Foster, Jr. You are going to be hearing a lot of it the next 30 days because I have a personal stake in this matter.

You see, one night in August 1996 one of my best friends, Michael LaHood, was murdered by Mauriceo Brown. And Kenneth Foster, Jr. was driving for Mauriceo that night. I don't know what the circumstances of Kenneth's involvement were beyond the fact that he was still in the car when Mauriceo pulled the trigger that sent a bullet through my friend's brain, ending his life immediately.

Was he being forced to drive? Or was he along for the ride? I don't care. Kenneth deserves and is receiving punishment for his role in the tragedy that occurred that night. But whatever punishment Kenneth does deserve for his role in my friend's cruel murder, execution should not ever have been (or be) an option. He did not pull the trigger, or encourage Mr. Brown to pull it in any way, nor was he even aware that the murder was being contemplated or had been committed until after the fact. His punishment should not be execution.

But we are in Texas and in Texas, barbaric laws prevail, like something out of Beowulf or the Old Testament or Reservoir Dogs -- one of the very few movies I could not watch to the end for its unspeakable cruelty. Never mind that we are in the 21st century. Never mind that we are supposed to be modern.

I miss Michael, my dear friend, whom I nicknamed 'Chainsaw.' He was a big, musclebound, softhearted jabber-mouth, always talking and always cracking jokes. Mike was full of life. And although he was a body builder I never saw him angry and I never saw him so much as hurt anyone. His joy was infectious -- everyone wanted to hang out with Mike and the ladies loved him, although he didn't quite have the confidence to take advantage of it (yet). Why he chose a long-haired, poetry writing, guitar playing miscreant and reformed pothead/high school dropout like myself I will never know. But I loved him dearly. The only time I ever cheated in college or university was for Mike. He hated poetry and asked if he could use one of my poems for his Freshman Comp? How could I say no?

I still remember eating chicken fried steak with him and D-Day -- the third and most successful leg of our triumviral friendship -- at Maggies at 3 a.m. after clubbing, back when the three of us attended the local junior college, were obsessed with the opposite sex but too stupid to realize they were just as obsessed with us as we were with them. God, how I'd give anything to have him back. Thinking of him brings a tear to my eyes even now. What makes it worse is that I'd returned from living out of the country a few months before he was killed. A new career kept me busy. We kept postponing getting together. My last words to Mike -- two weeks before he was murdered -- were a cliché for all clichés: "We'll do it next weekend, buddy, we've got all the time in the world." I couldn't hear the clock ticking. I wish I'd listened closer.

And for that I hated Mauriceo and his gang even more, and for a long time. But the execution of a young man who didn't even kill Mike? That's not justice. It's senseless vengeance, a barbarism cloaked in the black robes of justice.

Never knowing that a friend of one of the men involved in Mike's murder might reach out to me for help I wrote this two years ago about the death penalty:

Whenever people ask me about the death penalty I always reply: when you make it to the Pearly Gates, and Saint Peter asks, "justice or mercy?" Which will you choose?

Usually they sputter or blurt something out like, "The death penalty doesn't have anything to do with that." I reply, "The death penalty has everything to do with that. You just can't see it."

Then they say, "What if it happened to someone you know." And I reply, "In1996 one of my best friends, Michael LaHood was murdered. And I don't want his killer to die. I want his killer to repent. And then spend the rest of his life in prison helping other prisoners with less onerous sentences to see the light."

That's when they say, "You're a softy, wishy-washy feel-good, self-helping liberal wimp." By that time it's too late to ask them, "What requires more courage: revenge or forgiveness?"

I prefer mercy, wimp or not.

Kenneth did not ask for my help and he's already accepted his fate. Someone he helped asked me to help him. I cannot live with myself if I don't try. Wimp or not.

He is scheduled to be executed on the 30th of August.