Rick Halperin
Fri, 12 Dec 2008 22:03:36 -0600
Dec. 12 TEXAS: Death penalty system fatally flawed----[Sam Millsap is a former Bexar County district attorney.] According to a report released last week by the Texas Coalition to Abolish the Death Penalty Texas Death Penalty Developments in 2008: The Year in Review this year Texas juries condemned the fewest number of people to death in more than 30 years. As of Dec. 10, a total of 10 people (9 men and 1 woman) had been sentenced to death in Texas in 2008. Perhaps this reflects the public's growing uneasiness with the death penalty or prosecutors' recognition that the costs of the ultimate punishment both human and financial are too high. Or perhaps my fellow Texans have come to share my realization that a fallible system that puts people to death simply cannot be trusted. Evidence of misplaced trust in the death penalty system was on stark display on Aug. 25, when a Collin County court dismissed all charges against death row inmate Michael Blair for the 1993 rape and murder of 7-year-old Ashley Estell. After the results of new DNA testing failed to connect him to the crime, those involved in the case agreed that there was not enough evidence to uphold the conviction. Blair had spent 14 years on death row. Michael Blair was the fourth person exonerated from death row nationally in 2008 and the 130th overall since 1973, according to the Death Penalty Information Center. DNA played a role in just 17 of these cases. Blair is the ninth person exonerated from death row in Texas. Such willingness to admit a mistake has come too late for several inmates who claimed to be innocent of the crimes for which they were executed. In an interesting turn of events, the Texas Forensic Science Commission agreed this past August to a request from the Innocence Project to investigate the possibility of misconduct in the arson case of Cameron Todd Willingham. Willingham was convicted in 1991 of setting a fire that killed his three daughters; he was executed by the State of Texas in 2004. According to the Innocence Project, a panel of leading experts later determined that the fire was not arson and that forensic experts at the time of Willingham's trial should have known that the fire was an accident. The commission will investigate the faulty forensic analysis used to convict Willingham. Similar analysis was used in 2004 to exonerate Ernest Ray Willis, who had spent 17 years on Texas' death row for a crime that did not occur. Should the results of this investigation rule out arson, it will further undermine the credibility and integrity of the Texas death penalty system though clearly too late to benefit Mr. Willingham. In another Texas case, that of Carlos De Luna, a documentary film released earlier this year continued to call into question his guilt. "At the Death House Door" is based on an in-depth inquiry by journalists with the Chicago Tribune. To date, no official investigation has taken place, although strong evidence points to another suspect in the crime (now deceased) for which De Luna was executed 19 years ago. We cannot sanction a death penalty system that gets it right most of the time. An honest assessment of the problems associated with the death penalty is long overdue. I urge Texas lawmakers to consider the cases of Cameron Todd Willingham, Carlos De Luna, Michael Blair, Ernest Ray Willis and others when they reconvene in January and to recognize the ultimate fallibility of a system that no longer deserves our trust... or our support. When it comes to human life, a system that gets it right most of the time should not exist at all. (source: San Antonio Express-Newa) ***************** In recommending an end to the state's death penalty, the Maryland Commission on Capital Punishment overwhelmingly supported a critical finding: Maryland's death penalty system carries a real risk of executing an innocent person. At the risk of being called a carpetbagger, I want to address this issue from Texas, the execution capital of the free world, and echo the commission's findings that the risk is real - even in Maryland. I am no wild-eyed, pointy-headed liberal from some out of the way backwash. I am the former elected district attorney in San Antonio, Texas, the 7th-largest city in America, and was, until a few years ago, a strong supporter of the death penalty. As Bexar County district attorney, I was responsible for the prosecution of several capital murder cases, each of which resulted in the conviction and execution of the defendant. In 2005, the Houston Chronicle, in a remarkable piece of investigative journalism that has complicated my life immeasurably, argued persuasively that one of my prosecutions - the Ruben Cantu case - may have resulted in the execution of an innocent man. I fervently hope that there are only a few current and former prosecutors in America today who find themselves, as I do, in the position of having to admit an error in judgment that may have led to the execution of an innocent man. Maryland and Texas are very different places when it comes to the imposition of the death penalty. We have executed more people since January than Maryland has in the last 40 years. But Texas and Maryland are identical in those aspects that matter most. The people and courts of Maryland - like those in Texas - are not infallible. The fundamental court system is the same in both states, as it is in every state in the country. Maryland juries determine guilt or innocence based on testimony from fact and expert witnesses who may or may not be telling the truth and who, even when they tell the truth as they know it, are sometimes simply wrong. As is the case in Texas, the criminal justice system in Maryland, on its best day, is driven by decisions that are made by imperfect human beings. Try as we do to always get it right, we sometimes get it wrong. The Cantu case offers haunting lessons and could happen anywhere - even in Maryland. Cantu had a fine defense lawyer, a fair judge, and a jury that returned the only possible verdict, based on the evidence presented. The trial prosecutor I assigned to the case was one of the most honorable and ethical prosecutors I have ever known. He investigated the case carefully and was confident when he stood before the jury that Cantu had committed the crime. Since that time, the key witness has recanted and the alleged accomplice has said Cantu was not involved. Whether Cantu is actually innocent or not, it is clear that, 15 years after his execution by lethal injection, there are serious doubts in the case. The bottom line is that we will likely never know for sure - and doesn't an irreversible act like taking a life demand that we know for sure? Decisions by prosecutors drive the criminal justice system. The best prosecutors, acting entirely in good faith, make all sorts of judgments in capital murder cases and, because we are human, we make mistakes. Added to that undeniable fact is the reality that judges, jurors, defense attorneys and witnesses also make mistakes despite their best intentions. What you end up with is a system that, by definition, can never know for sure - and therefore cannot be relied on to protect the innocent in capital murder cases. Some suggest that it's good enough if we get it right most of the time - that good intentions, strong procedural safeguards, and a fair trial provide sufficient protection. If you believe that we must always get it right in capital murder cases, that the system must guarantee the protection of the innocent, accepting a system that tries hard and gets it right most of the time is simply not good enough when the sanction is so final. (source: Sam Millsap; The writer is the former district attorney for Bexar County, Texas--- Opinion, Hometown Annapolis) NORTH CAROLINA: DA: Accused killers won't face death penalty at trial for Yarmolenko killing Gaston County District Attorney Locke Bell said 2 suspects arrested and charged with murdering Ira Yarmolenko won't face the death penalty. To prosecute a death penalty case, Bell said prosecutors must prove one of 11 aggravating factors took place. After reviewing the case, Bell said the evidence does not prove any aggravating factors necessary for capital punishment in accordance with N.C. 15A-2000. "The statute does not provide for it," Bell said. "It will not be a capital case." Bell said he met with detectives for the 4th time Thursday to discuss the case and issue arrest warrants for Mark Bradley Carver, 40, and Neal Leon Cassada Jr., 54. On Friday, Bell said he has no idea, when the case would go to trial. Bell said he could not discuss the details of the case or talk about the suspects. (source: Gaston Gazette) GEORGIA: Brian Nichols avoids death penalty----On Saturday, judge will impose life sentence on courthouse killer Superior Court Judge James Bodiford declared the jury in the Brian Nichols death penalty trial deadlocked on the penalty Friday night which means Nichols will face a life sentence for the four murders the jurors convicted him of a month ago. Bodiford said he would impose the sentence Saturday, choosing between life in prison without parole and a life prison sentence with the possibility of parole. "I have 2 options tomorrow," Bodiford said. "That will be my job." The jury deadlocked 9-3 on whether Nichols should be sentenced to death or life in prison, splitting 9 for death and 3 for life imprisonment without parole. Bodiford said the jurors seemed to want to eliminate the option of life with the possibility of parole. The same jury of 6 black women, 2 white women, 2 black men, 1 white man and 1 Asian man convicted Nichols on Nov. 7 of killing Fulton Superior Court Judge Rowland Barnes, court reporter Julie Brandau, sheriffs Deputy Hoyt Teasley and U.S. Customs agent David Wilhelm. The families of the victims, having been strenuously warned against outburst, sat with sullen faces in the court pews behind the prosecutors. Nichols mother and father sat behind their son, their faces expressing neither happiness nor release. Nichols, as he had throughout the trial, showed little emotion. At one point while the jury was being polled, one of his attorneys, Robert McGlasson, put his arm on Nichols' shoulder, as if to congratulate him. Spectators in the packed courtroom looked tired and the lawyers at the prosecution table looked defeated. The defense team, often beleaguered during the 12-week trial, had an easy, almost relaxed air. Bodiford had warned spectators not to make any sound, to show no emotion and to stay seated. He ordered the courtroom's contingent of 6 marshals to "take down" anybody who stood because he would consider standing an "imminent threat." "If your mind wanders and you stand up, it will be the worst day of your life," said Bodiford, telling the crowd in the courtroom that any violators would be sentenced to 20 days in jail. The jury begin delivering its verdict at 8:14 p.m., saying they had found Nichols guilty by unanimous vote to the aggravating circumstances required for a death sentence, but that on sentencing they were deadlocked. Bodiford thanked the jurors for their work. "You were faced with the hardest decision the judicial system will ever ask anybody to make," Bodiford told the jurors. "Everyone in Atlanta will have a comment on what you have done. They have not sat in those chairs. They have not filled your shoes." Then, after 56 days of trial, he dismissed them at 8:42 p.m. Jurors left without comment. The jury foreman, contacted at his home, declined to discuss the trial Friday night. In the hallway outside the courtroom, the families and friends passed by a knot of reporters, but none spoke. They said they would Saturday after Bodiford sentenced Nichols. As he left the courthouse, Nichols father, Gene Nichols, told a television reporter that "we thank the jury." The jury deliberated for 4 days on whether Nichols should be sentenced to death, life without parole or life with the possibility of parole. Georgia law requires a unanimous verdict for a death sentence. Bodiford told the jurors that both the defense and prosecution legal teams had ensured a fair trial. "I think they did an excellent job," Bodiford said. "They gave it their all and then some. I have no idea about how many hours they spent on the case but I was impressed with them." Nichols rose to infamy when he escaped from custody during his rape trial on March 11, 2005, and murdered the judge, the court reporter and a sheriffs deputy. After he escaped, he murdered a off-duty federal agent that night. The murders shocked metro Atlanta. Fulton County District Attorney Paul Howard has sought the death penalty at least 10 times before juries, which so far have sentenced only 2 to death: one in 2000 for the unprovoked killing of a police officer and the other last July for a triple murder, including a 3-year-old boy. Next month, Howard's office is scheduled to begin the death penalty trial of Kenneth Reese, who is accused of murdering Fulton County police officer Aaron Blount in 2003. Based on the Nichols verdict, Howard's office should offer Reese a plea of life imprisonment out of fairness, said Michael Mears, a professor at Atlantas John Marshall Law School, who defended death penalty cases for years. Georgia law requires death sentences to be proportional to penalties given for similar murders, Mears said. "If Brian Nichols does not receive the death penalty, how is the Georgia Supreme Court going to allow any other death penalty stand that involves the murder of a police officer or court official?" Mears asked. "It is not the fault of the prosecutor. He is asking for the death penalty. He just can't get the jury to agree with him." The jury heard 144 witnesses and considered more than 1,200 pieces of evidence. The cost to taxpayers for the defense alone is estimated to have been well over $2 million perhaps more than $3 million although a final accounting won't be known until all vouchers for lawyers, their staff and four expert witnesses are submitted. One question that is unknown is whether Nichols will be turned over to federal authorities to serve his sentence at the Supermax prison in Florence, Colo., because he is an escape risk and because he was convicted of killing a federal officer. At Florence, Nichols likely would be under 23-hour-a-day lockdown in a solitary cell with an hour granted for solitary exercise. (source: Atlanta Journal-Constitution) *************** Jury Can't Agree, Nichols Avoids Death Penalty Atlanta courthouse gunman avoids death sentence as jury fails to unanimously agree on sentence. A judge old the jury in the Atlanta courthouse shooting case to deliberate for 2 more hours Friday about whether Nichols should be sentenced to life or death for killing a judge and 3 others. Superior Court Judge James Bodiford told jurors to debate for 2 more hours today after they told the judge a 2nd time they are deadlocked about what the penalty for Nichols should be in the 2005 shootings. The jury told the judge it was deadlocked yesterday morning, but the judge told them to continue deliberating. It has now deliberated more than 30 hours, starting Tuesday morning. The jury told the judge today it "reached a stage where further deliberations will not change an opinion." It is deadlocked 9-3 but has not said which way it is leaning. Prosecutors had asked the jury to sentence Brian Nichols to death. Georgia law requires that a death sentence must be a unanimous jury decision. If at least seven of the 12 jurors vote for death or for life in prison without parole, the judge can impose a life sentence, with or without possibility of parole. (source: Associated Press)