Sept. 28 USA: Drastic Expansion of Death Penalty Linked to Overbroad "Terrorism" Definition (section 110) Section 110's expansion of the federal death penalty would be drastic. In addition to creating 23 separate new death penalties in one stroke, section 110 also creates an unprecedented "catch-all" death penalty for any federal crime, or any attempt or conspiracy to commit such a crime, that meets the PATRIOT Act's overbroad definition of terrorism. First, the bill makes all of the 43 "Federal crimes of terrorism" listed at 18 U.S.C. 2332b(g)(5) death-eligible offenses; currently, 20 of these crimes are potentially capital offenses. The attached chart shows lays out current penalties for all of these crimes, showing which federal crimes would be made death-eligible by this provision of the bill. Congress should not simply adopt, without examination, the list of "Federal crimes of terrorism" as a proxy for crimes that are serious enough to warrant the death penalty. In listing "Federal crimes of terrorism," Congress did not choose only the most serious terrorism offenses for which it considered the death penalty to be an appropriate punishment, but also included other crimes that Congress created for the goal of preventing and deterring terrorism, including terrorism financing, material support, and computer-related offenses. Some of these crimes have been defined very broadly to enable the government to prosecute persons whose actions may have some relationship to terrorism but whose involvement is more peripheral than those who commit bombings, hijackings, murders or other terrorist acts that already carry the death penalty. For example, one crime that currently does not carry the death penalty is the offense of providing "material support" to a designated foreign terrorist organization. This offense was created in 1996 with a maximum sentence of 10 years in prison. The USA PATRIOT Act increased the maximum sentence to 15 years in prison, with a possibility of a life sentence if death results. There remains substantial controversy about the breadth of the "material support" offense because a conviction requires only that the government show the individual "knowingly" gave assistance to an organization designated as a terrorist organization, even if the assistance was only for the organization's lawful activities. The government argues that a defendant may be convicted even if he did not know of the designation, believed the assistance would support only charitable activities, and even if the assistance in fact only benefited charitable activities. One federal appeals court has now ruled the material support statute, as amended by the USA PATRIOT Act, must be construed to require knowledge of the designation or of the organization's unlawful activities, and that its prohibitions on providing "training" and "personnel" are void for vagueness. Adding a death sentence to such a broad statute will only contribute to its constitutional flaws. While the bill would only permit the death penalty for material support if death results, a prosecutor could be expected to argue that any financial or other contribution to a designated foreign terrorist organization - even for humanitarian activities - is fungible and therefore assisted the organization in committing terrorist acts that resulted in death. Second, the bill adds a sweeping "catch-all" death penalty that makes a federal felony a potential capital offense if it meets the broad definitions of "international terrorism" or "domestic terrorism" contained at 18 U.S.C. 2331 and death results. The number of new federal death penalties created by this provision is limited only by the ever-expanding number of criminal offenses. This "catch-all" death penalty provision would not only dramatically increase the number of federal capital offenses, but would seriously exacerbate the already considerable chilling effect of the USA PATRIOT Act's "domestic terrorism" definition on political protest groups that use tactics of civil disobedience. This provision would also exacerbate the already serious civil liberties problems of the definition of international terrorism and of the similar definition of domestic terrorism enacted by the USA PATRIOT Act. The USA PATRIOT Act, at section 802, provides that any actions, occurring primarily within the United States, are "domestic terrorism" if they (1) "involve" a violation of state or federal criminal law, (2) "appear to be intended" to influence government policy or a civilian population by "intimidation or coercion" and (3) "involve acts dangerous to human life. 18 U.S.C. 2331(5). The federal codes definition of "international terrorism" is similar, except that the actions must occur primarily outside the United States or "transcend national boundaries" and may involve "violent acts" instead of (or in addition to) "acts dangerous to human life." 18 U.S.C. 2331(1). These definitions of "terrorism" are so broad that many legitimately fear they could cover the civil disobedience activities of diverse protest organizations, including Operation Rescue, Greenpeace, and the anti-globalization movement. Blocking entrances to abortion clinics, for example, could "involve" violations of federal law punishable by more than one year in prison and may certainly "appear to be intended" to influence government policy or a civilian population by "intimidation or coercion." Blocking clinics under some circumstances involves "acts dangerous to human life" in that such actions could threaten the lives of the protesters (if protesters block traffic, for example) or interfere with the ability of women to get needed medical treatment. The anti-globalization movement is also known for civil disobedience tactics, such as chaining protestors together to block traffic, that could meet the USA PATRIOT Act's overbroad definition of terrorism. Because of the chilling effect of this definition on ideologically diverse protest groups, section 802 is one of the provisions of the USA PATRIOT Act that organizations on the left and the right have agreed must be amended to protect civil liberties. These organization agree that the definition of "domestic terrorism" should be amended so that it applies only to actions that constitute a "Federal crime of terrorism" under 18 U.S.C. 2332b(g)(5). By limiting "domestic terrorism" to serious federal crimes, Americans of all political persuasions will be reassured that the federal government will not treat them as terrorists because they may be involved in civil disobedience. This narrower definition is strongly supported by groups from the right and left, including the American Conservative Union, Free Congress Foundation, Gun Owners of America and the ACLU, and by a diverse group of House members, including Reps. Butch Otter (R-ID), Jeff Flake (R-AZ), John Conyers (D-MI) and Barney Frank (D-MA). The proposed legislation goes in exactly the opposite direction - not only leaving in place the USA PATRIOT Act's definition of terrorism but broadening the definition by adding a potential death sentence. Protest organizations have already been significantly chilled by the USA PATRIOT Act's definition of some civil disobedience tactics as forms of terrorism. A death penalty based on that definition would multiply the chilling effect dramatically. Creating 23 new federal death penalties - along with an expandable "catch-all" death penalty - will not make America safer from terrorism. Rather, it will undermine international cooperation against terrorism by further complicating efforts to obtain the cooperation of governments that have abolished the death penalty. The exoneration of more than 100 former inmates of America's death row has not gone unnoticed abroad. Diplomacy concerning the issue of the death penalty has become increasingly tense and complex. After the bombing of United States embassies in Africa by Al Qaeda terrorists, Germany only extradited an alleged conspirator to face trial in the United States after negotiating assurances the suspect would not face the death penalty. Many European nations, including the United Kingdom, have restated their opposition to the death penalty after September 11, 2001 and conditioned any extraditions in connection with the global fight against terrorism on similar assurances. Adding even more death penalties will not deter suicidal, religiously motivated terrorists who have not been deterred by the 20 federal death penalties for crimes of terrorism already on the books (not to mention other federal and state death penalties that may be available) and may instead simply attract new followers to the cause. The death penalty is in need of reform, not expansion. According to the Death Penalty Information Center, one hundred thirteen prisoners on death row have now been exonerated. Chronic problems, including inadequate defense counsel and racial disparities, plague the death penalty system in the United States. With 20 death penalties for federal crimes of terrorism already on the books, prosecutors have ample opportunity to seek the death penalty in serious terrorism cases. The expansion of the death penalty potentially to any crime that meets the definition of "terrorism" creates an opportunity for more arbitrary application of the death penalty. (source: ACLU) MARYLAND: Death row inmate questions appealing sentence----Killer tells court he'll stop fight, then changes mind A death row inmate from Baltimore County said during a court hearing yesterday that he wanted to give up the legal fight to save his life, but then changed his mind and decided to allow his legal team to proceed with a challenge alleging that he had ineffective counsel during his 2000 trial. The hearing, in Anne Arundel County Circuit Court, was ultimately postponed until early next year. Lawrence Michael Borchardt Sr., who was convicted for the Thanksgiving Day 1998 killings of an elderly couple in Rosedale, initially told the judge during yesterday's hearing that he wanted to end his challenge to his death sentence because of his poor health, saying, "They're going to kill me anyway." "Life without parole is basically the same thing as I got now," Borchardt, 53, told Anne Arundel Circuit Judge Pamela L. North at another point. He said of the death sentence, "At least I'll make their family feel a little better." However, after questioning by North and after speaking with his three lawyers, Borchardt agreed to allow the hearing to continue without him, saying it would be unfair to his legal team to withdraw the post-conviction claim. Borchardt, who told the judge he suffered from a long list of health problems, including diabetes and brain damage, limped as he was led out of the courtroom. Borchardt's lawyers later asked for the hearing to be postponed, saying they had a scheduling problem with witnesses. A new court date has been set for Feb. 15. Borchardt, a former heroin addict from Rosedale, was sentenced to death by an Anne Arundel County jury in 2000 for the stabbing deaths of Joseph Ohler, 81, and his wife, Bernice Ohler, 82. The Ohlers were found by a neighbor Nov. 26, 1998, in their home in the 6500 block of Golden Ring Road. Borchardt's trial had been moved to Anne Arundel County after his lawyers requested a change in venue. The Maryland Court of Appeals affirmed Borchardt's conviction and death sentence in 2001, and the U.S. Supreme Court in 2002 denied his request to hear the case. In addition to raising the issue of his trial counsel, Borchardt's lawyers in his post-conviction proceedings plan to argue that his health problems and a history of being abused as a child are among the mitigating factors that should have led to his receiving either a life sentence or life without parole, said Jeffrey B. O'Toole, one of his new attorneys. Several of the Ohlers' relatives and close friends were in the courtroom yesterday. (source: Baltimore Sun) CALIFORNIA: Scott Peterson not alone in describing Laci in past tense Scott Peterson wasn't the only member of Laci Peterson's family who seemed to sense in the days just after her disappearance that she was dead. Modesto police believe that the reason Scott Peterson spoke of his wife in the past tense days after he reported her missing Dec. 24, 2002, was that he had killed her. But in a Redwood City courtroom this morning, Peterson defense attorney Mark Geragos showed that Laci Peterson's mother, brother and sister all talked about her in the past tense in television interviews with reporters the week after she disappeared. A Sacramento reporter called Modesto police shortly after interviewing Laci Peterson's brother Brent Rocha on Dec. 26, 2002, to say she found it odd that he was speaking of his younger sister in the past tense, Geragos said. Sharon Rocha, Laci Peterson's mother, and her sister Amy Rocha also spoke of her in the past tense, Geragos said during cross-examination of Modesto police Detective Craig Grogan, the lead investigator in the case. "Everyone who was close to her referred to her in the past tense within the 1st week," Geragos said. "If those quotes are correct, then yes," Grogan replied. Grogan testified last week that police thought it was suspicious that Scott Peterson had talked about his eight-months-pregnant wife in the past tense. It was one of several reasons police began to suspect him in her killing. Peterson, 31, said that when he last saw his wife, she was preparing to take their dog for a walk and do some last-minute errands for Christmas. When he returned from a day of fishing on San Francisco Bay, he said, she was nowhere to be found. The bodies of Laci Peterson, 27, and the couple's unborn son washed up on the Richmond shoreline 4 months later and police charged him with their murders. This is the 18th week of the prosecution's case against Scott Peterson. Grogan's testimony is expected to resume this afternoon. ********************* THE PETERSON TRIAL/Defendant had another affair/Defense lawyer reveals dalliance at Cal Poly in 1998 Well before Amber Frey came along, Scott Peterson had 2 affairs during his 1st year of marriage, and his wife was aware of one, his defense attorney said Monday. In an apparent effort to show that Peterson's dalliance with masseuse Frey wasn't a motive for killing Laci Peterson, attorney Mark Geragos used his cross-examination of the lead Modesto police detective in the case to let the jury know his client had cheated twice shortly after the couple were married Aug. 9, 1997. Detective Craig Grogan testified that a woman had called police after Laci Peterson disappeared in December 2002 to say she'd had a five-month relationship with Peterson in 1998. At the time, Scott Peterson was still a student at Cal Poly San Luis Obispo, and Laci Peterson had moved temporarily to Prunedale (Monterey County) to start a job with a winery. The woman, who wasn't identified in court, told police that Peterson had never told her he was married. She discovered the truth only after walking in on Peterson, who was in bed with Laci Peterson at a house he shared with roommates. "She said there was no way Laci could not have known, because there was quite a scene," Geragos told Grogan, who did not argue the point. Grogan said he had interviewed another woman who also attended Cal Poly and dated Scott Peterson for two months in 1998. At the time, Peterson told her he was separated from his wife and was getting a divorce, Grogan said. She learned otherwise while sitting next to Peterson during their graduation ceremony when Laci Peterson walked up, put a lei around his neck and kissed him. Family and friends insist that Laci Peterson knew nothing of her husband's affair with Frey. But even her closest friends and her mother have said Laci Peterson never told them about his affair with the woman who found the couple in bed. Prosecutors are trying to convince jurors hearing the case in Redwood City that Peterson, 31, killed his 8-months-pregnant wife in December 2002 so he could be with Frey. Geragos has countered that the affair may have made Peterson a cad, but not a killer. In a television interview taped in January 2003 and played for jurors last week, Scott Peterson maintained he had told his wife about the relationship with Frey. Although she wasn't happy about his infidelity, Peterson said, his wife was "at peace" with it. Geragos also tried to show jurors Monday that Peterson wasn't trying to hide from his wife or anyone else the fact that he bought a new fishing boat Dec. 9, 2002, as prosecutors have suggested. Prosecutors theorize that Peterson killed his wife, then stashed her body in the secretly purchased boat and dumped her in the bay off the Berkeley Marina. Her body and that of the couple's unborn baby washed ashore in Richmond 4 months later, and Peterson was charged in their deaths. Several friends and family members testified earlier in the trial that Peterson had told no one of the boat, not even his closest friends or Laci Peterson's stepfather, who was an avid fisherman. Geragos, however, said Monday that two witnesses placed Laci Peterson at the warehouse where Peterson stored the boat, just days before she disappeared. Although Peterson did not register the aluminum fishing boat with the state, as required, he filed a release of liability form with the Department of Motor Vehicles, Geragos said. Rather than give an alternate address such as his business, Peterson listed his home address. The home address, Geragos theorized, is where the DMV presumably would send mail about the boat and where Laci Peterson might easily spot correspondence about the boat's registration. Earlier in court Monday, Geragos tried to show that his client had reacted the same way to his wife's disappearance as her family -- by presuming the worst. Last week, Grogan testified that one reason police focused on Peterson was because he was speaking of his wife in the past tense just days after he reported her missing. But Geragos showed the jury that Laci Peterson's mother, brother and sister all had talked about her in the past tense in TV interviews the week after she disappeared. Day 60 Wardrobe wars: The issue of what clothes Laci Peterson was wearing when she died came up again Monday. Police theorize that Scott Peterson killed his wife Dec. 23, 2002, the night before he reported her missing. To prove that point, prosecutors have tried to show that the pants found on Laci Peterson's body when it washed ashore 4 months later were the cream-colored pants her sister recalls her wearing the evening of Dec. 23. Scott Peterson has told police that the last time he saw his wife Dec. 24, she was wearing black pants and a white shirt and was getting ready to walk the family dog. Defense attorney Mark Geragos is trying to prove she was wearing a different set of clothes altogether, clothes she put on the morning of Dec. 24 as she headed out to walk the dog. Under cross-examination Monday, Modesto police Detective Craig Grogan acknowledged that during a search of the couple's home in February 2003, Laci Peterson's sister Amy Rocha found what she believed to be the blouse, scarf and shoes that Peterson had been wearing Dec. 23 and pants that were similar to or the same as the cream-colored pair. The clothing question goes to the heart of Scott Peterson's story, because prosecutors have used testimony of friends, family and her doctor to show that the eight-months-pregnant woman tired easily and had stopped walking her dog. Geragos tried to bolster his client's version Monday by showing that in an interview of one week after Laci Peterson disappeared, her mother and stepfather had said walking the dog was part of Laci's daily routine. (source for both: San Francisco Chronicle)
