Jan. 22 CONNECTICUT----impending volunteer execution High court questions lack of regulations for commuting death sentence Members of the state Supreme Court on Saturday questioned how serial killer Michael Ross could waive his rights to have his death sentenced commuted, when no regulations exist defining those rights. In a rare weekend session, the justices heard an appeal from the Missionary Society of Connecticut, which argues that the state can't execute anyone until the Board of Pardons and Parole approves regulations to hear death penalty cases. The board was created by the General Assembly last year and met for the first time in October. "We're not asking you to commute him," attorney James Wade, who represents the society, told the court. "We're asking you to say, 'If you're gonna kill him, you've got to have a set of rules."' An animated Wade suggested that no harm would come of postponing Ross' execution until board members establish those regulations, which could then be reviewed by the General Assembly. Ross is on death row for the murders of 4 young women in eastern Connecticut in the early 1980s. His arrest in 1984 ended a 3-year spree of attacks that stretched from Connecticut to New York, North Carolina, Illinois, and Ohio. He raped most of his victims, and killed 8 of them, 6 in Connecticut. Ross' execution, which would be the 1st execution in New England since 1960, is scheduled for Wednesday. That date was set last year after Ross fired his public defenders and announced he would forgo all further appeals of his death sentence. Attorney General Richard Blumenthal argued that the board is under no obligation to set regulations. He said the state has a policy to accept commutation requests only from inmates - not a 3rd party. But Judge William J. Lavery questioned whether such a policy could exist without regulations to back it up. The key issue is whether the Missionary Society, an arm of the Connecticut Conference of the United Church of Christ, has standing to bring the appeal, Blumenthal said. "At a minute before 2 o'clock on January 26, if Michael Ross raises his hand and says, 'I want commutation, or I want to file in court, the machinery of death will stop," Blumenthal said. "But people who are members of the general public, no matter how deeply they may feel and no matter how sincere their convictions, simply do not have the legal right to stop a lawful process." The court has not indicated when it will rule. It also must decide on appeals heard Friday from the state's public defenders, and Ross' father, Dan Ross, who are seeking to file post-conviction appeals on Michael Ross' behalf. On Monday morning, U.S. District Court Judge Robert N. Chatigny is scheduled to hear arguments from the public defenders that Ross in not mentally competent to give up his appeals. Last week, the state Supreme Court ruled that the public defenders have no "meaningful evidence" of Ross' incompetence. Judge Chatigny has told the public defenders to be prepared to call witnesses. Robert Nave, the head of the Connecticut Network to Abolish the Death Penalty, said he has been asked to testify. Nave has been a frequent visitor to Ross on death row. Ross' attorney, T.R. Paulding, said it's unclear if Ross will be asked to participate in the hearing, either in person or by closed-circuit television. "He really at this point is just trying to see friends and family, and he would prefer not to have to do this all over again," Paulding said. ******************** New England's last execution was 'Mad Dog' Taborsky New England's last execution was 45 years ago, but Gerald Demeusy still remembers how peaceful Joseph "Mad Dog" Taborsky looked as he walked to the electric chair. And he remembers the snap of Taborsky's large body convulsing against the leather straps of the chair as he was jolted with electricity. Steam gushed out from a helmet placed on his head. "The violence of that initial hit is unbelievable," said Demeusy, who witnessed the execution as a newspaper reporter for The Hartford Courant. "The leg hair goes up in flames. Even though he's dead, each time they turn that juice on, he reacts to it. It's like he's coming back to life _ you can see the fingers dancing." Serial killer Michael Ross is scheduled to die Wednesday in the 1st execution in New England since Taborsky was put to death in 1960 for a series of murders and robberies. Connecticut changed its method of execution from the electric chair to lethal injection in 1995. Like Ross, Taborsky struck widespread fear in Connecticut and spurred support for the death penalty in a region of the country reluctant to carry out executions. His crimes reversed momentum to abolish the death penalty in Connecticut, helping to keep the law on the books when Ross began his killing spree in 1982. "There was something reminiscent of a monster about Taborsky," Demeusy wrote in his book, "Ten Weeks of Terror." "Besides his towering height he had mammoth hands, deep-set eyes, thin cruel mouth, a stilted gait and an elongated jaw that earned him the nickname 'Chin."' Taborsky grew up during the Depression in a Hartford apartment with a prison view. He developed an early affection for crime as he watched the prisoners in the yard from his bedroom window. "To him, criminals were somebody to be admired," said Demeusy, now 87. "He'd hear the siren and know there was a breakout and hoped they would get away." Taborsky, whose father was put in a mental institution, pulled one of his first capers when he was 6. He stole jewelry from an apartment and gave the loot to his mother, Mabel, the only person he seemed to love. He stole a bike at 8, broke windows on the way to school and landed in reform school at 16. After that, he would embark on a series of robberies during the winter of 1956-57 that would change Connecticut for decades to come. Taborsky and an accomplice murdered 5 men and 1 woman during the 10-week robbery spree of liquor stores and gas stations in the Hartford area. They ordered their victims to kneel before shooting them in the head. "Joe admitted to me the reason they shot them in the head was to destroy the ballistics of the bullets going through the skull," Demeusy said. "His hatred for other people is what drove his criminal career." The killers netted about $35 for each robbery. Shopkeepers bought guns and attack dogs, closed early and only allowed known customers to enter their stores. Taborsky finally left a clue during a robbery of a shoe store in North Haven when he asked to see a shoe in size 12. The store owner survived a pistol-whipping and relayed the shoe size to authorities, who discovered Taborsky's name when they checked prison records for inmates with the large shoe size. During his trial, Taborsky would walk into the packed courtroom and point an imaginary gun at the spectators and pretend to shoot them, Demeusy said. Before the killings, momentum was building in Connecticut to abolish the death penalty. But the savage crimes made Taborsky as much a poster child for execution as Ross would be decades later. Taborsky might have avoided the execution, but decided not to pursue further appeals, Demeusy said. The U.S. Supreme Court overturned the conviction of his accomplice based on overly aggressive police tactics to obtain his confession. For his last meal, Taborsky had a banana split, a cherry soda and a few cigarettes. In a move that surprised Demeusy, Mad Dog donated his organs. "Somebody today is seeing through his eyes," Demeusy said. Like Ross, Taborsky was determined to die rather than live in prison. (On death row, one of his 1st jobs was to clean up after other executions). "When that door opened, he looked very serene and at peace with himself," Demeusy said. "He walked in and sat down and tried to strap himself in. They said, 'We'll do that, Joe.'" Taborsky, whose angry demeanor gave way to a sheepish grin as he came into the room at an old prison in Wethersfield, stopped the guards when they tried to strap one of his arms to the chair. Demeusy thought he was going to call a halt to his execution, but instead Taborsky simply waved goodbye to the reporters. But the memory of his crimes would live on long after he was executed. 3 decades later, liquor store owners cited Taborsky's terror when they resisted a proposal in the mid-1990s to permit the stores to remain open later. A recent poll showed strong support in Connecticut for the execution of Ross. Demeusy traces that support in part to Taborsky's legacy. "He's a bad memory to Connecticut," Demeusy said. "I think it hardened a lot of people." *************** A look at the 126 known executions in state history The following is a look at the 126 recorded executions in state history, beginning in 1639 and ending with Connecticut's last execution in 1960, according to the Death Penalty Information Center, based in Washington, D.C. The center uses a national database compiled by M. Watt Espy and John Ortiz Smylka titled, "Executions in the United States, 1608-1987: The ESPY File." Their research is based on Department of Corrections records, newspapers, county histories, proceedings of state and local courts, holdings of historical societies, and other listings of executions. According to the database: - The oldest known person executed in Connecticut was 79-year-old Adonijah Bailey in 1824. - The youngest known person executed in Connecticut was 12-year-old Hannah Ocuish in 1786. - 7 people were executed in the mid-1600s because they were accused of being witches. - Hanging was the state's method of execution between 1639 and 1936. It switched to electrocution in 1937 and to lethal injection in 1995. NAME AGE Date of Execution Crime Nepauduck NA Oct. 30, 1639 Murder George Spencer NA April 1, 1642 Sodomy/buggery/beastialilty Achsah Young NA May 26, 1647 Witchcraft Mary Johnson NA 1649 Witchcraft Goodwife Bassett NA 1651 Witchcraft Elizabeth Knapp NA 1653 Witchcraft NA NA 1655 Sodomy/buggery/beastiality NA NA 1655 Sodomy/buggery/beastiality Rebecca Greensmith NA January 1662 Witchcraft Nathaniel Greensmith NA January 1662 Witchcraft Mary Barnes NA March 1662 Witchcraft William Potter NA June 6, 1662 Sodomy/buggery/beastiality NA NA 1700 Murder NA NA 1700 Murder NA NA 1700 Murder Catherine Garrett 27 May 3, 1738 Murder Sarah Bramble NA Nov. 21, 1753 Murder Isaac Frazier NA September 1768 Housebreaking/burglary John Jacobs NA Nov. 21, 1768 Murder Moses Paul NA Sept. 2, 1772 Murder Moses Dunbar 30 March 19, 1777 Treason Griswold NA 1778 Treason Barnet Davenport 20 May 8, 1780 Murder Hannah Ocuish 12 Dec. 20, 1786 Murder Joseph Mountain 33 Oct. 20, 1790 Rape Richard Doane NA June 10, 1797 Murder Thomas Starr NA June 14, 1797 Murder Anthony NA Nov. 8, 1798 Rape Caleb Adams 18 Nov. 29, 1803 Murder Samuel Freeman 25 Nov. 6, 1805 Murder Henry Niles NA Nov. 4, 1807 Murder Miner Babcock NA June 6, 1816 Murder Peter Lung NA June 20, 1816 Murder Amos Adams 28 Nov. 30, 1817 Rape Adonijah Bailey 79 1824 Murder George Washington NA June 1, 1824 Murder Oliver Watkins NA Aug. 2, 1831 Murder Caesar Reynolds 30 Sept. 6, 1833 Murder William Teller 28 Sept. 6, 1833 Murder Sherman NA June 13, 1834 Murder Andrew Potter NA July 20, 1846 Murder Henry Foote NA Oct. 2, 1850 Rape/murder James McCaffrey NA Oct. 2, 1850 Murder Michael Jennings 18 July 11, 1854 Murder Gerald Toole NA 1862 Murder Albert Starkweather 25 Aug. 17, 1866 Murder James Wilson 47 Oct. 13, 1871 Murder Henry Hamlin NA May 28, 1880 Murder Philip Palladoni NA Oct. 5, 1888 Murder John Swift NA April 18, 1889 Murder Jacob Scheele NA June 18, 1891 Murder Andrew Borjensen NA Jan. 29, 1892 Murder Angelo Petrillo NA Nov. 14, 1892 Murder John Cronin 38 Dec. 18, 1894 Murder Kaspar Hartlein 40 Dec. 13, 1896 Murder Thomas Kippie 42 July 14, 1897 Murder Gussippi Fuda 31 Dec. 3, 1897 Murder Nicodemo Imposino 24 Dec. 17, 1897 Murder Charles Bainay 34 April 14, 1898 Murder/burglary Benjamin Willis 21 Dec. 30, 1898 Robbery/murder Frederick Brockhaus 21 Sept. 6, 1899 Robbery/murder Charles Cross 18 July 20, 1900 Rape/murder Paul Misik 34 Feb. 11, 1904 Murder Joseph Watson 18 Nov. 17, 1904 Murder Gershon Marx 73 May 18, 1905 Murder Ephriam Sherouk 24 Jan. 9, 1906 Robbery/murder Henry Bailey 40 April 16, 1907 Robbery/murder Alexander Herman 26 May 10, 1907 Murder John Washelesky 32 July 1, 1908 Murder Lorenzo Rossini 31 July 24, 1908 Murder John Zett 48 Dec. 21, 1908 Murder Raeffaele Carfaro 19 Feb. 24, 1909 Murder Giuseppe Campagnolo 28 Feb. 24, 1909 Murder John Zawedzianczek 28 Feb. 9, 1910 Murder Andrea Tanganelli 26 March 29, 1912 Murder George Redding Jr. 21 Nov. 1, 1912 Robbery/murder Louis Saxon 29 July 27, 1913 Murder James Plew 48 March 4, 1914 Murder Matijins Rikteraitis 29 May 8, 1914 Murder Joseph Buonomo 24 June 30, 1914 Murder Joseph Bergeron 40 Aug. 11, 1914 Murder Bernard Montvid 23 Aug. 6, 1915 Murder Frank Grela 41 Aug. 13, 1915 Murder Harry Roe 22 March 3, 1916 Robbery/murder Isaac Williams 30 March 3, 1916 Robbery/murder Pasquale Zuppa 28 March 10, 1916 Murder Francisco Vetere 25 Oct. 5, 1917 Murder Joseph Castelli 24 Oct. 5, 1917 Murder Stephen Buglione 20 Nov. 16, 1917 Murder Giovanni DonVanso 21 Nov. 16, 1917 Murder William Wise 23 Dec. 14, 1917 Murder Carmine Lanzillo 24 June 17, 1918 Robbery/murder Carmine Pisaniello 21 June 17, 1918 Robbery/murder Frank Dusso 25 June 17, 1918 Robbery/murder Erasmo Perretta 28 June 27, 1919 Murder Joseph Perretta 33 June 27, 1919 Murder Nikifor Nechesnook 28 Dec. 3, 1919 Murder Daniel Cerrone 31 March 5, 1920 Murder Elwood Wade 24 May 20, 1921 Murder John Kaurawskas 36 May 27, 1921 Murder Emil Schutte 55 Oct. 24, 1922 Murder Gerald Chapman 35 April 6, 1926 Murder Wing Soo Hoo 19 Nov. 8, 1927 Murder Lung Chin 33 Nov. 8, 1927 Murder John Feltovic 19 Dec. 10, 1929 Murder Frank DiBattista 26 Feb. 21, 1930 Robbery/murder Henry Lorenzo 26 Aug. 12, 1930 Murder John Simborski 30 April 7, 1936 Murder James McElroy 45 Feb. 10, 1937 Murder Frank Palko 26 April 12, 1938 Murder Vincent Cots 32 April 29, 1940 Robbery/murder Ira Weaver 36 April 29, 1940 Robbery/murder Peter Gurski 28 Feb. 23, 1943 Rape/murder Wilson Funderburk 38 April 20, 1943 Rape/murder Carlo DeCaro 20 May 3, 1944 Robbery/murder Nicholas Rossi 33 June 18, 1945 Murder/burglary James McCarthy 21 Oct. 1, 1946 Murder Arthur Tommaselli 25 Oct. 1, 1946 Murder Raymond Lewie 19 Oct. 1, 1946 Murder Robert Bradley 38 April 12, 1948 Murder William Lorain 34 July 11, 1955 Murder Robert Malm 32 July 18, 1955 Rape/murder John Donahue 33 July 18, 1955 Murder George Davies 41 Sept. 20, 1959 Rape/murder Frank Wojculewicz 42 Oct. 26, 1959 Murder Joseph Taborsky 36 May 17, 1960 Robbery/murder (source for all: Associated Press) ************** Noted Anti-Death Penalty Nun Will Be At Ross' Side----Killer Requested Presence of Sister Helen Prejean Sister Helen Prejean, the Roman Catholic nun from New Orleans whose campaign against the death penalty has been chronicled in book and film, has been asked by Michael Ross to be with him during the hours leading up to his scheduled execution Wednesday. Prejean, author of "Dead Man Walking" and in California on a tour promoting her new book, "The Death of Innocents," will be with Ross on Tuesday, said Sister Margaret Maggio, who is Prejean's administrative assistant. Both women belong to the Sisters of St. Joseph of Medaille and live in New Orleans. By law, Ross is entitled to 4 visitors on the eve of his execution. Brian Garnett, spokesman for the state Department of Correction, declined Friday to confirm that Prejean would be with Ross. "I won't discuss who his visitors will be," he said. However, both Ross' attorney, T.R. Paulding Jr. of Glastonbury, and Maggio said Prejean will be at the Osborn Correctional Institution in Somers, where the execution is to take place, at Ross' request. Ross, 45, has admitted killing 8 women in Connecticut and New York during the 1980s and is on death row for the murders of 4 young women in eastern Connecticut. His execution, scheduled for just after 2 a.m. Wednesday, would be the 1st in New England since 1960. Prejean, who believes that state-ordered executions are both morally wrong and unconstitutional, has accompanied 6 men to their executions as their spiritual adviser. However, it is unclear what her status will be Tuesday. "I'm not sure whether she'll be considered spiritual adviser because Michael Ross has been talking with a priest for some time. But she will be there, said Maggio. "She visited with him a month or so ago and has been talking with him on the phone." Prejean, who is 65 and was born in Baton Rouge, La., wrote her first book, "Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States," in 1993 about her experiences with the Louisiana execution process. That book, nominated for a Pulitzer Prize and on The New York Times Best Seller list for 31 weeks, was made into a 1995 film starring Susan Sarandon as Sister Helen and Sean Penn as a death row inmate. Sarandon won the Oscar for Best Actress for her performance. "Dead Man Walking" was also made into an opera that premiered in 2000 in San Francisco. In her new book, Prejean talks about 2 men who she believes were wrongly convicted and put to death. Among her many efforts in her crusade to abolish the death penalty, Prejean founded Survive, a victim's advocacy group in New Orleans, and continues to counsel families of murder victims as well as inmates on death row. Interviewed earlier this month on National Public Radio's "All Things Considered," Prejean said she finds the United States "in an impossible situation with the death penalty. ... Over the last 20 years, the Rehnquist court has slowly stripped away all the constitutional protections like you should have effectiveness of counsel, jury of your peers, they haven't dealt with race, and a number of things that structurally make the death penalty unconstitutional." She said the only the way this country will be rid of the death penalty - 38 states have it as law - is a federal order. "They won't take it off books until federal courts make them," she said, "like the southern states wouldn't take segregation off the books until courts told them." (source: The Day) ALABAMA: Bennett still facing death penalty A Uniontown man charged with a 2004 double-murder will not receive any different treatment from the new District Attorney serving Perry County. "There is no change in our plans for prosecution," said assistant DA Mickey Avery, speaking for newly inaugurated Perry County DA Michael Jackson, sworn in last week. "I can't speak for our strategy in court at this time, but I can tell you we will still be seeking the death penalty." The defendant in the case is Charlie Bennett of Uniontown. Bennett is charged with the murders of Lawrence Alvin Smith and Kenneth Dixie in Uniontown in June of last year, a crime which is punishable by death by lethal injection. The case drew statewide attention when it was revealed that a blunder in the prison system's paperwork allowed Bennett to walk free long before a sentence for bank robbery had expired. Avery asserted Friday that the new face in the DA's chair would mean little in the case's execution. "I have worked here for 11 years, and the staff here is unchanged," he said. "We do have a new DA, but we do not have a new office." Although a trial date is forthcoming, Avery stated that a "pending mental evaluation" has yet to be completed to determine Bennett's competency to stand trial. Without the finished evaluation from state physicians, no trial date can be set. Avery also added that it was "too early to speculate" on whether any kind of plea offer might be made to the defendant. Although the placement of Bennett back into federal custody for his bank robbery conviction was a consideration in the case's initial few weeks, Bennett remains incarcerated at the Perry County Jail in Marion. According to Avery, as a defendant in a capital case he is prohibited from posting bond. Bennett is represented by court-appointed attorney George Jones III of Selma, who was unavailable for comment as of press time. (source: The Demopolis Times) MISSISSIPPI: Prosecutors will not seek death penalty in murder trial Prosecutors announced Friday that they won't seek the death penalty in the capital murder trial of Mary Scarbough, accused of luring a 52-year-old man to a Moss Point park to rob him of his Social Security check. Assistant District Attorney Tim Jones said the state will be seeking life without parole, the only other sentence possible if Scarbough is convicted of capital murder. A spokesman for District Attorney Tony Lawrence said the decision was made after discussions with the victim's family. Scarbough, 20, is accused of luring Dorian Johnson to Eddie Khayat Park in Moss Point to rob him of his Social Security disability check in 2002. Johnson was beaten, stabbed and left for dead on a logging road in Vancleave Her trial is set for Jan. 31. A jury will be selected in Adams County and then transported to Pascagoula to hear the case. In August, Scarbough was offered an opportunity to plead guilty to murder, but declined to accept the offer. Scarbough is 1 of 4 people arrested in 2003 in connection with Johnson's death. Other defendant Anthony Terrell Booker, 17, was convicted of capital murder and sentenced to life without parole. Another defendant Shawn Davis, 17, pleaded guilty to murder in connection with the case. 4th defendant Desmond Shields, 20, is awaiting trial. (source: Associated Press) KENTUCKY: Goodrums family wants to speak out----Relatives of man charged in death of WKU student want judge to allow Website, access to the media Family members of the man accused of killing a Western Kentucky University freshman have requested permission to speak to the media and continue their Web site, LucasIsInnocent.com. The request was filed Friday following a hearing earlier this month in Warren Circuit Court when Special Judge Thomas Castlen of Daviess County said that anyone with an interest in the outcome of the March 1 trial of Lucas Goodrum would face possible jail time if he or she talked publicly about the case. Goodrum, 23 of Scottsville is accused of the May 2003 slaying of 18-year-old Katie Autry. Castlen said he gave the warning out of concern for finding an impartial jury in Warren County. Castlen, who has not yet written the order, has already made allowances for an out-of-county jury pool to be called should an adequate jury not be formed from the 300 Warren County candidates scheduled to report. Goodrums mother and stepfather, Donna and Bruce Dugas of Aubrey, Texas, have not removed the Web site they established in June to proclaim their sons innocence and have now filed a motion - to be heard Tuesday - seeking clarification of Castlens words. The memorandum refers to an hour-long discussion between the judge and attorneys behind closed doors at the last pretrial conference on Jan. 10. During the in-chambers discussion, Castlen asked the familys attorney, William D. Kirkland of Frankfort, for information about "research" that had been done in the case and for "insights regarding the power of the court to enter an order restraining family members or others ... from making public comment regarding the case," according to the motion Kirkland filed Friday. The nature of the research was not elaborated upon in the memorandum, and the couple agreed not to run any more advertisements promoting the Web site - an issue specifically addressed by Castlen in court - but asked that they still be allowed to comment to the media, "as long as they do not disseminate information not already within the public domain." The Dugas family requested clarification of the order, which they feel currently prohibits all public speech, and pointed to a prior Kentucky Court of Appeals ruling as an example of what is appropriate in such cases. A judicial order several years ago attempted to prohibit public comment by family members of three young Kentucky girls slain at a Paducah high school by Michael Carneal, and the family appealed on the basis of their right to free speech. In the appeal, James v. Hines, the higher court ruled that when the ability to form an impartial jury is a concern, public comment should be restricted only after other measures have been considered, including jury sequestration, trial continuance and change of venue. The Court of Appeals also ruled that "prior restraint on speech is presumptively unconstitutional (and) must be supported by findings that a clear and present danger or actual prejudice or an imminent threat to the defendant is present." Shortly after the Jan. 10 hearing, a legal expert representing newspapers across the state also questioned if Castlen overstepped his duty. "My reaction to that is he's gone too far," Louisville attorney Jon Fleischaker said at the time. He added that, though the judge has power to issue a gag order over state officers, attorneys and parties directly involved in the case, his latest words impinge on the First Amendment rights of citizens. "You cannot gag the community. What hes worried about is creating an environment where it would be difficult to create an impartial jury - and I understand his concern - but I think hes gone too far," Fleischaker said then. If Castlen agrees to clarify his verbal order as requested, Bruce and Donna Dugas will waive their right to an evidentiary hearing regarding his reasons for issuing the order, as required by the Court of Appeals ruling, their motion states. Goodrum is currently in Warren County Regional Jail without bond, facing charges of murder, 1st-degree rape, 1st-degree sodomy and arson, or complicity to those crimes. His former co-defendant, Stephen Soules, 21, of Scottsville, pleaded guilty in March to murder, first-degree rape, rape by complicity, 1st-degree sodomy, sodomy by complicity, arson by complicity and 1st-degree robbery. Soules was sentenced to life in prison without the possibility of parole. Prosecutors are seeking the death penalty against Goodrum. (source: Bowling Green Daily News) USA----book review 'The Death of Innocents': A Reasonable Doubt THE DEATH OF INNOCENTS-An Eyewitness Account of Wrongful Executions. By Helen Prejean. 310 pp. Random House. $25.95. IN "Dead Man Walking," her fine, furious denunciation of the death penalty, Sister Helen Prejean assumed that the men she saw executed were guilty. That presented the question of the morality of capital punishment in its pure form, and it lent power to her position. In "The Death of Innocents," she makes a different argument. She asserts that 2 men she accompanied to their deaths by lethal injection were innocent. More broadly, Sister Prejean, a Roman Catholic nun from Louisiana, and other opponents of the death penalty now say that the death penalty should be abolished not only because it is wrong but also because it is unreliable in separating the innocent from the guilty. As Sister Prejean puts it: "Honorable people have disagreed about the justice of executing the guilty, but can anyone argue about the justice of executing the innocent? And can anyone doubt, after the revelations of the past five years, that we do it all the time?" To many, the argument that we are executing innocent people seems more persuasive than the argument that execution is morally wrong. People may support the death sentence in principle, but they have enough qualms about its application to be reluctant to impose it in individual cases. The number of death sentences imposed annually is in steep decline, from an average of 290 each year in the 1990's to an average of 174 in recent years. In 2003, 144 death sentences were issued, the fewest since 1977, the year after the Supreme Court reinstated the death penalty. But Sister Prejean and other abolitionists are stretching the facts. Few serious students of the death penalty think we execute innocent people ''all the time.'' Indeed, there is no proof that anyone surely innocent has been executed in the modern history of the death penalty in America. To be sure, 30 or 40 categorically innocent people have been released from death row, as have many others convicted on flimsy and unreliable proof. Prosecutors say this is proof the system works. They are wrong. It is proof of something quite different: unspeakable incompetence, prosecutorial malice, harrowing injustice. And it does suggest the possibility of the execution of innocent people, but it does not prove it. The 2 cases Sister Prejean discusses in "The Death of Innocents" -- of Dobie Gillis Williams, a poor black man from rural Louisiana with an I.Q. of 65, accused of rape and murder, and Joseph Roger O'Dell, a white man with a long record, arrested for murder, rape and sodomy in Virginia -- are typical. The evidence against them was not insubstantial, but some of it was inconsistent, some of it suggested other potential killers and much of it was open to question. In both cases, a decent lawyer could probably have gotten them off. A decent lawyer certainly could have saved their lives. As Justice Ruth Bader Ginsburg has said, "People who are well represented at trial do not get the death penalty." Williams's lawyer did not conduct rudimentary testing on blood evidence, failed to object to an all-white jury and offered almost no evidence at sentencing that might have allowed the jury to show leniency. O'Dell foolishly decided to represent himself, though it is hardly clear that the typical court-appointed lawyer would have done better. Once the trials were over, rules of appellate procedure limited the ways the two men could attack their convictions and sentences. In O'Dell's case, Virginia prosecutors acted shamefully in denying him and his estate the chance to test biological evidence. Had Williams and O'Dell brought their appeals in the Northeast or in California rather than in Louisiana or Virginia, appeals courts would probably have found a way to save their lives. Indeed, O'Dell at one point came within 1 vote in the Supreme Court of a new sentencing hearing. The decision had nothing to do with the evidence in the case. Instead, the court said that one of its rulings, about jury instructions, did not apply retroactively. It came, that is, too late to help O'Dell. There is something appalling in seeing a man's life or death turn on a 5-to-4 vote. Williams also had the misfortune of being tried too soon. In 2002, three years after his execution, the Supreme Court ruled that the Constitution bars the execution of the mentally retarded. But none of this -- not the questionable evidence, not the bad lawyering, not the happenstance of being tried in the South and before key rulings -- makes the 2 men innocent, at least not in the usual sense of the term. They were surely not guilty, though, in the beyond-a-reasonable-doubt sense. Early on, Sister Prejean gives the reader a muscular dose of Catholic theology, which on the whole slows the book down. She is less sure-footed in her legal analysis, and her march through the Supreme Court's death penalty jurisprudence, much of it in the form of an imagined dialogue with Justice Antonin Scalia, is thin and tendentious. "The Death of Innocents" comes alive when the author discusses her time with Williams and O'Dell. Her prose is, as in "Dead Man Walking," luminous, undecorated, angry and very moving. Her description of the comfort she offered to these men in their final hours and the torment they endured in anticipating their ends tests our conception of human decency. "He has only a couple of hours to live, and we are talking about rolling cigarettes," she writes of Williams. "We are talking about everything. What are the best things to talk about before you die? I remember Patrick Sonnier and I talked about God, death, love, remorse, forgiveness, his daughter Star's karate lessons and how his mama made venison stew." She is a tough nun. When O'Dell confides that he does not intend to go quietly, she does not try to dissuade him. "I surely don't know," she tells him, "what I would do if a group of people were hauling me off to kill me." (source: The New York Times -- Adam Liptak is the national legal correspondent of The Times)
