Nov. 23
USA: Congress Moves to Limit Prisoner Habeas----AG, not appellate courts, would review states' indigent defense work Congress moved on several fronts last week to impose sweeping limits on the ability of prisoners to challenge the legality of their convictions and sentences in federal court. Most of the Republican-led efforts occurred outside of the traditional committee system, which includes public hearings and public "mark-up" of proposed legislation and amendments. Just hours before the Senate Judiciary Committee on Nov. 16 was scheduled to hold its second hearing on the so-called Streamlined Procedures Act, S. 1088, which would make the most dramatic changes in federal habeas review in nearly a decade, House and Senate members of a conference committee on legislation to reauthorize the USA Patriot Act inserted a key and controversial provision of S. 1088 into the Patriot Act legislation. That provision takes away from federal appellate courts the responsibility for determining whether states, through improvements in their indigent defense systems, have met the requirements of the 1996 Antiterrorism and Effective Death Penalty Act in order to "opt in" to the 1996 law's expedited time frames for review of capital habeas petitions. Under the provision, the U.S. attorney general would set the standards for opt-in status and would decide whether a state complies. An appeal of the attorney general's decision could be made only to the U.S. Circuit Court for the District of Columbia. During the judiciary committee hearing on S. 1088, former Solicitor General Seth Waxman, now of Washington's Wilmer Cutler Pickering Hale and Dorr, said it was "dismaying" to include the provision in legislation dealing with terrorism. He also called it a "very grave mistake and an unwarranted act" to remove an adjudicative function from the courts and to give it "in the context of an adversarial criminal justice system" to a prosecutor. But Senator Jon Kyl, R-Ariz., chief sponsor of S. 1088, noted that only Arizona has qualified for opt-in status under the 1996 act. There is "no resolution or reliance" if the decision is left to the courts, he insisted. U.S. Senior District Judge Howard McKibben of Nevada, chairman of the Judicial Conference Committee on Federal-State Jurisdiction, said preliminary statistics show that "by and large, states have not made the effort Arizona has to opt in. There is no empirical data to indicate the courts have not properly determined opt-in requests." McKibben and Waxman repeatedly urged the committee to gather data to determine whether there is a systemic problem of delay in habeas review or just isolated cases in certain circuits before approving the comprehensive overhaul in S. 1088. However, the committee chairman, Senator Arlen Specter, R-Pa., indicated that he and his Republican colleagues were ready to send S. 1088 to the Senate floor despite widespread opposition from state and federal judges, the organized bar and others. The bill is supported by a number of state and local prosecutors and victims' groups. The conference report on the USA Patriot Act reauthorization also was heading for a final vote in both chambers at press time. GUANTANAMO ACTION Earlier in the week, the Senate also approved an amendment to the National Defense Authorization Act, which severely restricts the ability of Guantnamo Bay detainees to challenge their detentions through federal habeas petitions as permitted by a 2004 Supreme Court decision. The amendment allows detainees designated as "enemy combatants" one appeal of that designation, which would be made only to the D.C. Circuit, with possible review by the Supreme Court. And any detainee sentenced by a military tribunal to at least 10 years in prison would receive an automatic appeal to the D.C. Circuit. The amendment appears to eliminate habeas review for detainees not designated "enemy combatants." Because the House version of the defense spending bill is silent on this issue, House-Senate conferees will address it when they meet to resolve differences between the two measures. New limits on federal courts' habeas jurisdiction as well as new time limits for disposal of habeas petitions are also proposed in four pending bills: H.R. 3132, the Children's Safety Act of 2005 (already approved by the House); H.R. 3860, Protecting Our Children Act of 2005; S. 1605, Law-Enforcement Officers' Protection Act of 2005; and H.R. 2388, Prevention and Deterrence of Crimes Against Children Act of 2005. (source: The National Law Journal) MARYLAND----impending execution Baker denied stay of execution by appeals court----Inmate had cited study reporting racial disparities in Md. death penalty Maryland's highest court rejected a request today for a stay of execution from Wesley E. Baker, who is scheduled to die the week of Dec. 5 for a 1991 murder. Baker's lawyers had argued he should get a new trial because of a state study showing racial and geographic discrimination in the way capital punishment is imposed in Maryland. In a brief order, the Maryland Court of Appeals rejected his request for a stay of execution and also denied him the right to file an appeal from a Harford County court ruling that rejected his request for a new sentencing hearing. The order did not give reasons for the ruling and did not say how the seven members voted. Baker was sentenced to die by lethal injection for killing Jane Tyson, 49, in a Baltimore County shopping center parking lot as her grandchildren watched. Gary Christopher, a federal public defender currently representing Baker, said he will file an appeal next week with the U.S. Supreme Court. He also has filed a new appeal with the state Court of Appeals saying Baker should get a new hearing because the lawyers who represented him when he was sentenced to death did not present evidence about the abuse he suffered as a child. (source: Associated Press) ******************* Attorneys try to halt execution of killer----Evidence was omitted about inmate's past With less than 2 weeks before death row inmate Wesley Eugene Baker could be executed, his lawyers filed court papers yesterday saying that the convicted killer's death sentence should be overturned because his attorneys at sentencing did not offer evidence of a troubled and abusive childhood that led Baker to drink vodka and use marijuana by age 10 and shoot heroin by 14. Baker's lawyers argue that a sentencing judge might have spared the man's life in 1992 had his trial attorneys called as witnesses Baker's mother and a social worker who had compiled a family history documenting Baker's birth to an unstable 13-year-old girl, the domestic violence he witnessed as a child and his frequent attempts to run away. The lawyers, however, decided not to call their mitigation witnesses. Told just before the sentencing hearing about the family history his attorneys planned to present, Baker forbade his lawyers from presenting any of it, according to court papers. Additional investigation by Baker's defense team revealed that he had been beaten and sexually abused as a child, the court papers show. "People will denigrate it as the abuse excuse, but it's not an excuse," said Gary W. Christopher, a federal public defender and one of Baker's lawyers. "It's evidence of how a person fell into the cracks of society and ended up on the fringes, doing all sorts of self-destructive things that ended on the worst day of his life with murdering someone." Baker, 47, is scheduled to be executed the week of Dec. 5 for the 1991 killing of Jane Tyson, a 49-year-old teacher's aide, in front of her grandchildren in a Baltimore County mall parking lot. A death row inmate in another Baltimore County case, Lawrence Michael Borchardt Sr., was granted a new sentencing hearing in May after pressing the argument that an attorney who defended him at a capital sentencing hearing in 2000 provided ineffective counsel by not presenting mitigating evidence that might have persuaded a jury to spare the convicted killer's life. In another Baltimore County case, the U.S. Supreme Court in 2003 threw out the death sentence of convicted murderer Kevin E. Wiggins, saying trial lawyers in his 1989 case failed to present mitigating evidence about horrific childhood abuses. Prosecutors have said, however, that Baker's case differs in that his lawyers had collected - but chose not to present - evidence of Baker's troubling childhood. In their petition to the Harford County Circuit Court, where Baker's case was tried, defense attorneys Michael E. Lawlor and Gary E. Proctor wrote that they "continue to be flabbergasted by the total abdication of trial counsel's failure to present a case in mitigation, an omission inexplicably exacerbated by appellate counsel's failure to raise it on appeal and in collateral proceedings." (source: Baltimore Sun) NORTH CAROLINA: North Carolinians Voice Support for Death Penalty Many adults in the Tar Heel State believe capital punishment should be allowed for specific crimes, according to a poll by Elon University. 61 % of respondents in North Carolina think death is the most appropriate punishment for 1st-degree murder. Since 1976, 997 people have been put to death in the United States, including 53 during 2005. More than 1/3 of all executions have taken place in the state of Texas. 14 states and the District of Columbia do not engage in capital punishment, and a moratorium on executions has been issued in Illinois. In the Tar Heel State, 38 persons have been executed since 1984 - including four this year. The North Carolina Senate approved a 2-year moratorium on executions in April 2003, citing the need to review flaws in the system. The states House of Representatives never voted on the bill. Polling Data What do you think is the most appropriate punishment for 1st-degree murder? Death penalty----61% Life without parole----27% Other----5% Dont know----6% (Source: Elon University) Methodology: Interviews with 488 North Carolina adults, conducted from Nov. 14 to Nov. 17, 2005. Margin of error is 4.5 %. (source: Angus Reid Consultants) ALABAMA: Slaying in Monroeville will be subject of movie An unsolved killing that haunted the hometown of "To Kill a Mockingbird" author Harper Lee for 19 years is set to become the subject of a movie produced by a Chicago-based independent film company at work on a screenplay of Pete Earley's book "Circumstantial Evidence." Earley and Ruckus Media Group announced this month that a deal to option the rights to Earley's book was final, with work already under way on a script. The book explores the killing of 18-year-old coed Ronda Morrison in 1986 and the struggles of a black man who spent 5 years on death row for a crime he did not commit. Morrison was shot in broad daylight in a dry cleaning store where she worked on one of Monroeville's busiest streets. Months later, officers arrested Walter "Johnny D" McMillian, a poor logging worker with a scant criminal record. Despite testimony from several witnesses that McMillian had been at home that day at a fish fry and had been working on his truck, jurors believed testimony of two whites who implicated McMillian. Both had cut deals, agreeing to testify in exchange for lesser sentences in an unrelated crime in a neighboring county. Producer Ron Sapienza said he was intrigued by the story and found the book compelling enough to support a feature film. "First and foremost, we find it very difficult to walk away from a story that so clearly entertains, educates and inspires one to 'reinvestigate' what they think they truly believe," Sapienza stated in an e-mail. "Circumstantial Evidence" won the Robert F. Kennedy Book Award and the 1995 Edgar Award for best crime fact book and was listed as a best seller by the New York Times. "As I read the book, I was struck that this story had all the intriguing twists and turns of a James Patterson novel, along with vibrant and memorable characters that could have stepped right out of a Tennessee Williams play ... and the best part is it's all true," Sapienza wrote. "I've always thought it was a very interesting case that spotlights problems in the criminal justice system," said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama. Stevenson, a Harvard-trained attorney, worked in the late 1980s and early'90s to free McMillian from death row following his wrongful conviction in the death of Morrison. Stevenson was able to prove that evidence was concealed and testimony tainted in McMillian's case, winning an appeal of his death penalty trial. With the state's case in shambles, District Attorney Tommy Chapman had the charge against McMillian dropped, and he walked free from death row in 1993, 5 years after his wrongful conviction. Race a factor? Stevenson said racism played a role in McMillian's conviction. That factor invites comparisons between the case and the fictional case of Tom Robinson in "To Kill a Mockingbird." In Lee's novel, Robinson, a black man, is falsely accused and convicted of raping a white woman. "Race was not the only factor," Stevenson said, "but I believe it was one factor that made it easier to presume him guilty instead of innocent. His relationship with a white woman also made him a target. There are issues of poverty" and a botched investigation as well, he said. "Everyone has a right to demand equal justice -- a fair and honest justice system," Stevenson said. "This case should make a film that will spotlight problems. What people ought to be outraged about is that someone got away with murder, and Mr. McMillian, who had nothing to do with it, was gravely mistreated." Chapman, who was not the prosecutor at the time of the killing or initial trial of McMillian, said he has never closed the case. He goes back through the file regularly and checks on any new leads. He said this week he's not happy about the prospect of a film. He said it can only open old wounds between people who work in law enforcement. His own staff can't agree about who is responsible for Morrison's death. Monroe County Sheriff Tom Tate and some state investigators remained convinced of McMillian's guilt, leading to a bitter rift between the prosecutor and some in law enforcement that has only begun to heal in recent years. 'Killer is out there' Chapman said at first he believed McMillian was guilty, but after an interview on a news program, he took a detailed look at the transcript of the trial and at the evidence. He said it was obvious McMillian was innocent. "The killer is still out there," Chapman said. "But until we recover a murder weapon or find someone with information we don't have now, an arrest is not likely. The crime scene was so contaminated by passersby that there was not a lot of physical evidence left to go on. There was a tragic outcome for the Morrisons and for Johnny D. The ironic thing is, if he hadn't been sentenced to death, there would have been no automatic appeal, the case wouldn't have been overturned, and he'd still be in prison." Chapman said he has policies in place to avoid a repeat of the errors that led to McMillian's flawed trial. The news of the upcoming film was not greeted warmly by all residents in the Monroe County seat where some residents said they felt people here did not get a fair shake in the book. Some of the people involved in the case said the book, in their opinion, is "fiction." Despite considerable evidence to the contrary, some still believe McMillian is guilty. Some say the debate about the case is best left in the past. Filmmakers don't agree. "Has anything of significance ever been achieved without controversy?" asked Tom Gorham, screenwriter for the project. "I see this as more than one town's story. This is about all of us, our system, the things that work and the things that don't. Most of us like to believe that individually we are fair and honest people, but the truth of the matter is that oftentimes we find it easier to choose the path of least resistance, to follow the crowd. "It's that simple question of morality taken to its ultimate," Gorham said, "a decision of life and death. To me, 'Circumstantial Evidence' is a reflection of society as a whole and our strength or weakness as individuals to find the moral fortitude to stand up and seek the truth." Parents want truth "I think this movie coming out will be about like the book," said Bertha Morrison, the mother of the slain teenager. "We asked them not to publish it, but there was nothing we could do to stop it." Charles Morrison and his wife still grieve deeply over the death of their only child. They say they want the truth about their daughter's killing, all the while knowing they will likely never get it. They hang on tidbits of information. Frustration and despair sit plainly on their faces. They said their only hope is that the film might prompt someone to come forward with new information. Nineteen years of gossip and wild rumors have left them angry with investigators and the court system. They said they heard the evidence and testimony at trial. They were convinced of McMillian's guilt. Now, they said, they want to be sure their daughter's name is not tarnished. "We don't want an innocent man in jail," Bertha Morrison said. "We want the right person convicted. This whole thing belongs to us. She was our child and we just want the truth. We had a lot planned for our life, for our daughter and we watched it all go down the drain. We'd like a little peace." Sapienza said the Morrisons have borne the crushing weight of losing their child, and his hope is the film might lead to a break in the case. Stevenson said McMillian has been battling health problems recently and is living with a sister. He was unavailable for comment. Pete Earley wrote on his Web site that he is "impressed not only with the evolution of this (film) project but with the talented people behind it." Sapienza said that if all goes according to plan, filming could begin as early as June 2006. (source: Mobile Register)
