Aug. 28
USA:
Just how fair does justice have to be?
The U.S. Supreme Court is getting ready to hear argument in the upcoming term
on a core issue of the nation's legal system, one that goes to the heart of
fairness in criminal cases -- under what circumstances do prosecutors have to
reveal evidence that might help defendants show innocence?
First, a disclaimer: You're about to read material on issues that should be of
concern to every American who cares about the quality of U.S. society but
usually dismissed by the average person. It largely concerns the rights of
people who may be guilty of horrendous crimes. Technically, it comes under the
heading of "legal stuff."
A major purveyor of "legal stuff," the American Bar Association, says it's time
to broaden the obligations of prosecutors who would just as soon "Brady
material" -- evidence held by the prosecution that might help a defendant --
never see the light of day.
Over the years, the courts have recognized that some prosecutors and police are
so convinced of the guilt of some defendants, they are unwilling to introduce
evidence that might needlessly confuse the issue in the minds of jurors.
The Supreme Court's opinion in Brady vs. Maryland has been settled law for
nearly 5 decades. In the case, a prosecutor had withheld from the defense
evidence that might have helped John Brady, the defendant convicted in a murder
trial, avoid the death penalty.
The high court ruled 7-2 that suppression by the prosecution of evidence
favorable to an accused who has requested it violates constitutional due
process -- where the evidence is material either to guilt or to punishment,
regardless of the good faith or bad faith of the prosecution.
But the court majority also said when the Maryland Court of Appeals restricted
the defendant's new trial to the question of punishment -- the guilty verdict
would stand -- it did not deny him due process or equal protection of the laws
under the 14th Amendment, "since the suppressed evidence was admissible only on
the issue of punishment."
Justice William O. Douglas wrote the majority opinion, but Justice William
Brennan announced it.
"Petitioner and a companion ... were found guilty of murder in the 1st degree
and were sentenced to death, their convictions being affirmed by the Court of
Appeals of Maryland," Douglas wrote, adding, "Their trials were separate,
petitioner being tried first. At his trial Brady took the stand and admitted
his participation in the crime, but he claimed that (Donald) Boblit (the
companion) did the actual killing. And, in his summation to the jury, Brady's
counsel conceded that Brady was guilty of murder in the 1st degree, asking only
that the jury return that verdict "without capital punishment.'"
Before trial, "petitioner's counsel had requested the prosecution to allow him
to examine Boblit's extrajudicial statements" -- those statements not admitted
as evidence. "Several of those statements were shown to him; but one dated July
9, 1958, in which Boblit admitted the actual homicide, was withheld by the
prosecution and did not come to petitioner's notice until after he had been
tried, convicted, and sentenced, and after his conviction had been affirmed."
A constitutional violation, but the parameters of that violation weren't
infinite.
Douglas concluded: "A sporting theory of justice might assume that if the
suppressed confession had been used at the first trial, the judge's ruling that
it was not admissible on the issue of innocence or guilt might have been
flouted by the jury just as might have been done if the court had first
admitted a confession and then stricken it from the record. But we cannot raise
that trial strategy to the dignity of a constitutional right and say that the
deprival of this defendant of that sporting chance through the use of a ...
bifurcated trial ... denies him due process or violates the equal protection
clause of the 14th Amendment."
48 years after Brady, the Supreme Court is scheduled to hear argument in
November in a Louisiana case that revisits the Brady issue. The ABA says it may
be time to recognize obligations beyond the constitutional level.
In that Louisiana case, Smith vs. Warden Cain, Juan Smith was convicted of five
counts of murder in the "Morrison Road" case and sentenced to life in prison
without parole. The state trial court, the state 4th Circuit Court of Appeal
and the state Supreme Court all denied Smith's petition for review. Smith
contends that the Louisiana courts disregarded established precedents on "Brady
material."
There was plenty of murder to go around in the case.
On the evening of Feb. 4, 1995, Tangie Thompson, her boyfriend, Andre White and
her 3-year-old child were killed in their New Orleans residence on Roman
Street.
Juan Smith was convicted in the "Roman Street" case and sentenced to death for
the 3 murders.
On the evening of March 1, 1995, 3 armed men entered another home in New
Orleans on Morrison Road and ordered 6 people to lie down on the floor. 5 were
shot multiple times and died. One of the victims, Shelita Russell, was severely
injured but conscious after the attack and interviewed by police.
Smith's lawyers say this interview was never turned over to the defense.
Russell died several days later.
The lawyers also contend the prosecution withheld a jailhouse confession that
involved another suspect in both murders, and made a very favorable deal with
the jailhouse suspect in exchange for testimony against Juan Smith in the
Morrison Road trial.
Witnesses also were forced to identify Smith in a photo lineup under highly
suspect circumstances, the lawyers contend.
The trial judge and appeals courts refused to suppress this evidence, and the
U.S. Supreme Court initially refused to review in 2003. But the justices agreed
to hear the case on "Brady material" grounds in November during the upcoming
2011 Term.
While Smith awaits his day before the Supreme Court, the ABA has singled out
the case as the chance to give the Brady precedent a broader, more concrete
effect.
"The present case involves numerous serious allegations of non-disclosure that,
post-trial, a court must evaluate under this (Supreme) Court's Brady
jurisprudence," the ABA says in a friend-of-the-court brief. "However, a
prosecutor's pretrial ethical disclosure obligations, as governed by the
attorney disciplinary rules of the state or jurisdiction in which the
prosecutor practices, are separate from and broader than the constitutional
standards."
The brief says an ABA Model Rule, specifically 3.8(d), "mandates disclosure of
exculpatory and mitigating evidence without regard to materiality. This rule's
widespread acceptance is reflected in the fact that 49 states, including
Louisiana, as well as the District of Columbia, the United States Virgin
Islands and Guam have adopted ethics rules that include a provision identical
or substantially similar to it.
"Similarly, various provisions of the ABA Criminal Justice Standards promote
broad disclosure of all exculpatory evidence, without regard to the materiality
standard that is required for post-trial analysis under Brady," the brief adds.
"Accordingly, this (Supreme) Court should again recognize that a prosecutor's
pretrial ethical disclosure obligations are distinct from the constitutional
standards that control a court's post-trial determination of Brady claims."
The ABA contends those ethical considerations are as potent as the
constitutional obligations.
"While the post-trial constitutional determination of Brady claims must
consider the materiality of a non-disclosure" -- how germane it is to guilt or
innocence -- "this (Supreme) Court has noted on several occasions that the
prosecutor's ethical obligations are broader than those set out in Brady and
that the 'prudent prosecutor will err on the side of transparency, resolving
doubtful questions in favor of disclosure'" -- citing 2009's Cone vs. Bell.
The brief also cites the 1908 ABA Canons. "The primary duty of a lawyer engaged
in public prosecution is not to convict, but to see that justice is done."
(source: United Press International)
US MILITARY:
Study: Racial disparities taint military's use of death penalty
10 of the 16 men whom the military has sentenced to death in the last 27 years
share another common characteristic: They're all minorities.
The racial imbalance in the military's death penalty isn't new. As far back as
the early 1970s, the military has acknowledged racial bias in its judicial
system. The civilian court systems have similar disparities.
But one recent statistical analysis has found that the problem endures and is
in some ways worse than on the civilian side.
A study by a group of law and statistics professors found that minorities in
the military were twice as likely to be sentenced to death as their white
counterparts, a statistic higher than is known to exist in most civilian court
systems.
The professors concluded that the military's efforts in 1984 to reform its
capital system "failed to purge the risk of racial prejudice from the
administration of the death penalty."
"There is no suggestion here that any participant in the military criminal
justice system consciously and knowingly discriminated on the basis of the race
of the accused or the victim," the study's authors said in their report.
"However, there is substantial evidence that many actors in the American
criminal justice system are unconsciously influenced by the race of defendants
and their victims."
The study, led by professor David Baldus of the University of Iowa College of
Law and associate professor Catherine Grosso of the Michigan State University
College of Law, was obtained by McClatchy and is set to be published late this
year in the peer-reviewed Journal of Criminal Law and Criminology.
Of the 16 death sentences the military has handed down since 1984, the study
found that race appeared especially to be a factor in 5 cases that involved
multiple victims with at least 1 victim who was white.
The cases included 3 men who remain on death row.
•Ronald Gray, a black former Army private who raped and murdered 4 women, is
expected to be the 1st military execution in 50 years.
•Dwight Loving, a black former Army private at Fort Hood, Texas, was convicted
of killing 2 taxi drivers.
•Kenneth Parker, a black former Marine lance corporal, killed 2 white Marines
after hearing rumors that a group of white males planned a lynching.
The other 2 men were resentenced to life in prison after appeals courts
overturned their death sentences.
Other legal experts have asserted that civilian jurors and prosecutors are more
likely to weigh race in their decision-making in civilian capital cases when
the crime involves multiple victims who are white. The more heinous the crime,
the more likely there will be racial bias, the theory goes.
In the military, the professors found that base commanders, who decide whether
to seek the death penalty, are less influenced by race than juries are.
The authors said they thought that the officers, who were trained and advised
by a legal adviser in a profession that prided itself on "race-neutral
decision-making," were more likely to resist racial considerations.
In contrast, military juries "are on their own in their decision-making and
normally have had no reason to consider issues of equal justice."
The study found no evidence of racial disparity in cases that involved a
significant military interest, such as the murders of fellow troops or
officers. In murders of civilians who had little ties to the military, the
disparities were the most noticeable.
The professors theorized that military juries were able to rise above racially
charged decision-making when the military's interests were at stake.
To discourage racism from entering into verdicts, the study recommends that the
military reserve the death penalty for murders in which there's significant
military interest.
"Such a limitation of death eligibility under military law would also simplify
the costs and complexity of the current system without impairing the charging
and sentencing authorities' ability to protect vital military interests through
the use of the death penalty," the authors concluded.
(source: Bellingham Herald)
********************************
Many death sentences in U.S. military overturned
In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the
first military execution in almost 50 years.
The rapist and murderer of 4 women had sat on death row for 2 decades by the
time President George W. Bush approved his death warrant.
But the week before Gray was to receive a lethal injection, a federal judge
halted the execution because of a new appeal.
Now, federal defenders who took over his case say they've found new evidence
that his original military lawyers should have discovered. If they're
successful, Gray could join a growing number of soldiers, airman and Marines
who have been spared execution.
Of the 16 men sentenced to death since the military overhauled its system in
1984, 10 have been taken off death row. The military's appeals courts have
overturned most of the sentences, not because of a change in heart about the
death penalty or questions about the men's guilt, but because of mistakes made
at every level of the military's judicial system.
The problems included defense attorneys who bungled representation, judges who
didn't know how to properly instruct a jury and prosecutors who mishandled
evidence.
In all of the cases, the men have been resentenced to life in prison.
Eventually, they could be eligible for parole.
Yet by many measures, they're the military's worst of the worst. Convicted of
crimes such as serial murder and rape, they're the kinds of criminals that many
people would agree the death penalty should be reserved for.
Then why have they been spared?
Critics say the military botched the cases because its judicial system lags
behind civilian courts and isn't equipped to handle the complex legal and moral
questions that capital cases raise.
Civilian courts have demanded that experienced lawyers be appointed in capital
cases and have pushed for a more uniform application of the death penalty. The
military, however, hasn't made any major institutional changes to address such
problems in more than 25 years.
At almost every level - from trial to appeals - young, inexperienced lawyers
routinely have been appointed to represent capital defendants.
"If you have a system where it's always amateur hour and where the lawyers are
always trying their first capital case, you're going to guarantee the same
kinds of mistakes that have resulted in many, many cases being reversed -
because of ineffective assistance of counsel - for the last 30 years are going
to be made over and over again," said David Bruck, the director of the Virginia
Capital Case Clearinghouse, a legal aid clinic.
"Even worse, you may have cases where the person is not only sentenced to death
because of their lawyers' mistakes but because the courts will say that it's
close enough for government work."
Even though the military has assigned more seasoned lawyers in some recent
high-profile cases, the efforts are inconsistent and often can depend on the
branch.
For instance, Charles Gittins, a civilian lawyer who hadn't tried a capital
case, asked the Army earlier this year to appoint qualified counsel to help him
represent a client who was eligible for the death penalty. Gittins was turned
down.
In contrast, the Guantanamo detainee who's accused of masterminding the 2000
suicide attack on an American Navy warship recently was appointed a civilian
attorney with decades of capital experience. In fact, all 6 Guantanamo
detainees likely to face the death penalty before a separate military
commissions system are guaranteed experienced attorneys.
That's because a 2009 law requires the military to appoint qualified attorneys
or "learned counsel" for the terrorism suspects. No such provision exists for
the regular courts-martial where service members face criminal charges.
"Khalid Sheikh Mohammed can expect to get learned counsel, but your average
military guy can't," said Gittins, a former military lawyer. "It's really
bizarre to me that a terrorist who attacked the country can get qualified
counsel but a U.S. citizen and soldier can't."
Military officials could argue, and often do, that they can't provide the kinds
of expert attorneys that most civilian courts now require. Defense attorneys
and prosecutors generally rotate out of their jobs after a couple of years, and
many are unlikely to get experience in capital cases.
The military also shrugs off its 80 % overall sentence-reversal rate as a
natural part of the appeals process in highly scrutinized cases. The civilian
court system, however, has responded to a 47 % reversal rate as a sign of the
need for reform.
"Each outcome was entirely case-specific," said Jennifer Zeldis, a spokeswoman
for the Navy's Office of the Judge Advocate General, which had 4 of its 5
capital cases overturned on appeal. "Attempting to draw conclusions as to
systemic issues is problematic because of the small number of death penalty
cases tried over a wide number of years."
In January, the Army launched a review of its handling of capital cases, but
officials said it wasn't prompted by any specific concerns.
"Any good criminal justice system worth its salt is constantly looking at how
it does business," said Col. Chuck Pede, who oversees criminal law policy for
the Army's Office of the Judge Advocate General.
Pede, who has experience as a prosecutor and defense attorney over a 24-year
legal career, said the Army has teamed up less experienced lawyers with more
seasoned attorneys or supervisors in more complex cases.
"I don't see any major systemic issues that cry out for action on the part of
the armed forces," he said of capital cases.
But for at least a decade, military judges and lawyers have called on the U.S.
military to fix its capital system.
Critics say the military has resisted broader changes because it views its
court system as separate and unique. Created by Congress to keep order in the
military ranks, the military has a judicial system where all the constitutional
rights taken for granted in civilian courts don't always apply, experts said.
The system is decentralized and each branch operates independently, making
sweeping criminal-justice reform difficult.
"If you look at the strength of the military, it's an admirable quality in our
military men and women that they have a can-do, make-do attitude. It's a
recognition that military conditions are not always ideal and a real leader
steps up and figures things out," said Denny LeBoeuf, the director of the
American Civil Liberties Union's Capital Punishment Project. "That's a great
attitude in a lot of situations, but it is not protective of the standards that
are necessary in capital cases."
Further, the Pentagon is consumed with two wars and facing the hard choices of
cost cutting. The criminal justice system isn't as much of a priority.
But experts said there were alarming signs of the need for reform, including a
racial disparity that's worse in some ways than in civilian courts. 10 of the
16 men who've been sentenced to death since 1984 were minorities. Of those, 6
had their sentences overturned.
According to one recent study obtained by McClatchy Newspapers, minorities are
twice as likely to be sentenced to death in courts-martial as their white
counterparts, a statistic that's higher than is known to exist in most civilian
court systems.
Almost 40 years ago, the U.S. Supreme Court recognized that sentencing in
capital cases resulted in stark disparities, often along racial lines. The
landmark ruling, Furman v. Georgia, invalidated much of the civilian capital
system and ushered in a string of other capital decisions, including
recognizing the importance of qualified defense attorneys.
The military has tried to improve the quality of its attorneys appointed in all
criminal cases. In 2007, for instance, the Navy established a program that
allows a group of more than 50 lawyers to remain in criminal justice throughout
their military careers. The Army has revamped its training.
However, the new attorney for the only Navy defendant whose sentence hasn't
been reversed is five years out of law school and has no experience with death
penalty cases. To prepare for litigation that the Supreme Court has concluded
is among the most difficult, the attorney attended a 3-day conference offered
by a nonprofit group.
Over the course of his appeal, the defendant, Kenneth Parker, who was convicted
of killing two fellow Marines, has had at least seven lawyers. They've written
so many different briefs that the courts recently ordered his new lawyer to
start from scratch and file one appeals brief, as is customary in a capital
case.
"The case is dazzlingly complex," said the lawyer, Maj. Kirk Sripinyo. "Anyone
at any experience level would say it's difficult."
The judge who's overseeing a crucial issue in Parker's appeal - questions about
whether Parker is mentally retarded and therefore ineligible for the death
penalty - was discovered to have discussed the case with one of the experts in
the case without the knowledge of the lawyers. Such discussions are seen as
improper and could be a sign that even the judge was out of his depth, experts
said.
Making matters more complicated, Parker's evidence was tested by a discredited
North Carolina bloodstain pattern analyst who recently was accused in other
cases of hiding or manipulating evidence to ensure a win for prosecutors
In the meantime, an appeals court overturned part of the conviction of Parker's
accomplice 3 years ago because the judge mishandled an expert's misconduct at
trial. At a new trial last year, the other defendant was sentenced to life.
Yet almost 2 decades after Parker's conviction, his case hasn't even completed
the first level of appeal, a delay that's striking even in a capital case and
that "has not been explained to me," his lawyer said.
Such examples have prompted even some former prosecutors and military lawyers
who favor the death penalty to conclude that the military could do more to
improve its handling of capital cases.
Charles Feldmann, who prosecuted Jessie Quintanilla, a Marine sergeant
convicted of murdering his superior officer and almost killing another, said he
was too inexperienced to be the lead prosecutor in the case when it was tried
in 1996.
In his 20s with less than three years of experience as a lawyer, he ended up
making mistakes, he said. One of them, he said, was to keep the murder weapon,
a gun, as a trophy and to hang it on the wall of his office.
"It was the action of an extremely emotional and over-aggressive prosecutor who
did not see the big picture," Feldmann said of his behavior. "I can't describe
to you how easy it is to get rolled into the passion and the emotion of some of
these cases. You can lose some of your judgment." A military appeals court
overturned Quintanilla's sentence because of the judge's mishandling of the
jury selection.
Separately, the court excoriated Feldmann and the other prosecutors for
"unethical" behavior, saying it had "besmirched the military justice system."
After the trial, one of the other prosecutors had given the surviving victim
the bullet that had pierced his chest. The same prosecutor also kept a knife
from the crime for himself.
"There is a line between zealous prosecution infused with righteous
indignation, on the one hand, and unethical conduct, on the other," the
Navy-Marine Corps Court of Criminal Appeals wrote. "These two judge advocates
crossed that line on several occasions in this capital court-martial."
Instead of retrying him, the military sentenced Quintanilla to life in prison.
He's eligible for parole, although the families of his victims had wanted him
to be executed.
"This guy is a monster and deserves to be on death row," said Feldmann, who's
now a civilian attorney and volunteers his time to help teach military lawyers,
partly because of what happened in the case. "But because I didn't know how to
handle death penalty cases, I failed. I failed the Marine Corps and I failed
the family of the victims."
Despite such high-profile screw-ups, the military has chosen not to follow the
lead of civilian courts.
Last year, Navy Lt. Cmdr. Stephen Reyes surveyed capital systems in the country
and found that 80 % of all state systems, plus the federal court system, have
set up minimum standards for the quality of the defense appointed in death
penalty cases. The military has no such requirement for its courts-martial, and
Reyes thinks it should.
Experts said the military could create an office for complex cases such as
capital trials made up of lawyers from all the military services, similar to
what was created for the separate military commissions system for Guantanamo
detainees. Or the military could hire more seasoned civilian lawyers, a
phenomenon that's already occurring in a limited way across the military's
justice system in general.
"We've already seen massive transformations in the civilian courts when it
comes to defense counsel," said Reyes, who's represented military defendants
accused of capital crimes. "Now it's time for the military courts-martial to
get on track, before a miscarriage of justice occurs."
(source: McClatchy Newspapers)
GEORGIA:
Local death-penalty decision raises questions
On Thursday, the Chatham County district attorney’s office announced in court
it no longer intends to seek the death penalty for Bobby Lavon Buckner.
Instead, Chief Assistant District Attorney David Perry said, the prosecutor’s
office will seek life in prison without the possibility of parole in the 2003
slaying of 12-year-old Ashleigh Moore.
A 2009 change in Georgia law allows prosecutors to ask for the
life-without-parole sentence without first seeking the death penalty, Perry
said.
As he stood before Superior Court Judge Penny Haas Freesemann, Perry told her
the decision was made because of the “tremendously burdensome and expensive
process” involved in a capital case.
The victim’s family members also agreed with the state’s position, Perry said,
adding, “They never were adamantly seeking the death penalty in this case.”
Here’s the background.
Ashleigh moore was a DeRenne Middle School honor student when she disappeared
from her Weiner Drive home April 18, 2003. An intense search was launched in
Savannah and South Carolina and drew national attention.
Her body was found on May 14, 2003, near the Savannah Marriott Riverfront on
General McIntosh Boulevard.
Buckner, who was the live-in boyfriend of Ashleigh’s mother, Michelle Moore, at
the time, faces charges of murder, kidnapping with bodily injury, child
molestation, statutory rape and a recidivist count in a 2011 indictment, the
third in the case.
He was arrested April 19, 2003, and remains in custody at the Chatham County
jail on an unrelated probation revocation in a 1995 molestation and statutory
rape case.
In April 2011, District Attorney Larry Chisolm and Perry filed their intent to
seek the death penalty after Buckner was indicted for Ashleigh’s death on March
23.
Here’s what’s troublesome.
While we’re reluctant to second-guess a prosecutor’s decision on whether to
seek a death penalty, we have to wonder whether cost and a “burdensome” process
are the reasons or whether the lack of seasoned prosecutors is the real
problem.
Former Assistant District Attorney Isabel Pauley had been second-chair to Perry
on the case until she resigned last month. During her 11 years with the
prosecutor’s office, Pauley prosecuted some of the largest, most violent cases
with the special victim’s unit in Chatham County Superior Court.
She left to join the prosecution team in the adjoining 6-county Atlantic
Judicial Circuit to tackle cases in Liberty and Long County.
In her new job, she will be reunited with former Chatham County Assistant
District Attorney Greg McConnell who left the local office in April 2010 after
24 years.
McConnell’s resignation in a dispute with Chisolm’s management style was the
first of a number of resignations/retirements that left the district attorney
without long-term, experienced assistants and support personnel.
At least 6 of his more seasoned assistants have left since McConnell, including
former chief assistant Meg Heap.
If Pauley, McConnell, Heap and others still were with the district attorney’s
office, would a different decision have been made on Buckner?
It’s a troubling question with no apparent answer.
(source: Savannah Morning News)
NEVADA:
Death penalty sought for 2 in killing of NV teen
Elko County prosecutors have decided to seek the death penalty for two West
Wendover teenagers accused of murdering a 16-year-old classmate in March.
The Elko Daily Free Press reports the district attorney's office filed the
paperwork this week to make it a capital case after listening to recorded
confessions from the two 18-year-old suspects, Toni Fratto and Kody Patten.
Both have pleaded not guilty in the killing of Micaela Costanzo after she left
track practice at West Wendover High School.
Investigators say she was beaten with a shovel and her throat cut before she
was buried in a shallow grave in the desert.
Fratto's trial is set for February, Patten's in March.
The Free Press says it's the county's 1st death penalty case in 11 years.
(source: Associated Press)
*********************************
Douglas County doctor due to be paroled for kidnapping now faces capital murder
charges
A former Douglas County emergency room doctor, scheduled to be released Sunday
from Nevada on second-degree kidnapping charges, was charged today with capital
murder in the death of the ex-husband of the woman he kidnapped.
Arkansas authorities will seek the extradition of Richard Conte, 61, to face
murder charges in the May 18, 2002, deaths of Carter Elliott, 49, and his
employee, Timothy Robertson, 25, in Conway, Ark.
Both Conte and Elliott had been married to Lark Gathright-Elliott. Conte’s
marriage to her in 2001 lasted 3 months.
A month after the pair were slain in Arkansas, Conte kidnapped
Gathright-Elliott from Utah and took her to his Clear Creek Canyon subdivision
home. A contract physician with Carson-Tahoe Hospital, he drugged her.
Sheriff’s deputies rescued her.
Conte pleaded guilty in 2003 to second-degree kidnapping and to illegally
administering a controlled substance and received a 15-year sentence.
Cody Hiland took over as prosecuting attorney in Arkansas’ Twentieth Judicial
District, which includes Conway, in January.
As to why he waited until the Friday before Conte’s release to file charges,
Hiland replied: “This is an extensive file and obviously a serious issue. We
had to examine it to determine whether prosecution was warranted.”
As far as prosecutors before him not filing charges, Hiland said, “I can’t
speak for what has happened since 2002.”
Like Nevada, not every murder case in Arkansas can be a death penalty case.
Hiland declined to discuss what justified the death penalty charges against
Conte.
Based on his experience with these kinds of cases, he expects it to go to trial
in 15 months to 18 months, Hiland said.
Lake Tahoe lawyer William Cole, who defended Conte on the Nevada charges, said
in a 2003 interview that Conte has an alibi. Someone can place Conte in
southern Utah the weekend of the Arkansas murders, Cole said.
“He’s a sitting duck for these kinds of accusations because of what happened
with his wife,” Cole said. “If you look in one place hard enough, all the
evidence seems to point in that direction because you’re not looking anywhere
else.”
Investigators pointed out that they were able to find on Conte’s computer an
Internet map for Conway and a list of law enforcement frequencies for central
Arkansas.
“As far as our division is concerned, we’ve got the right man,” Conway, Ark.,
police Maj. Mark Elsinger said in 2003.
(source: Reno Gazette-Journal)
LOUISIANA:
Law office sues to block info in ex-clerk's book
A New Orleans law office specializing in death penalty cases is suing a former
summer intern who wrote an essay about her work at the nonprofit group,
accusing her of disclosing confidential information and undermining clients'
defenses.
The Louisiana Capital Assistance Center is seeking a court order blocking
Alexandria Marzano-Lesnevich from publishing any privileged information she
obtained while working as a law clerk for the center for several weeks in 2003.
Her lawyer says she is writing a book that is part memoir and "part literary
journalism" about the prosecution of Ricky Langley, one of the center's
clients. Langley, a sex offender, was convicted of strangling a 6-year-old boy
to death near Lake Charles in 1992 and sentenced to life in prison in 2009.
Marzano-Lesnevich, a Harvard Law School graduate who is pursuing a writing
career instead of practicing law, wrote an essay on the same subject that was
published by the Bellingham Review. The literary journal, based in Bellingham,
Wash., removed the piece from its website after the center complained.
Lori Mince, Marzano-Lesnevich's lawyer, claims the center is trying to stifle
her free speech rights. Mince said her client's essay, "In the Fade," doesn't
disclose anything confidential about the case against Langley.
"Her core position is 'there's nothing privileged about what I'm saying and you
can't get a court to order me not to talk,'" Mince said.
The center sued Marzano-Lesnevich in state court in June, but the Boston
resident had the case transferred to federal court in New Orleans on Wednesday.
In the lawsuit, the center said Marzano-Lesnevich understood she had to adhere
to the same ethical and legal obligations as an attorney. But her essay
divulges confidential information about cases, including "litigation strategy"
and clients' "state of mind," the suit claims.
"Marzano-Lesnevich also uses information relating to her representation of
LCAC's clients to their disadvantage by mischaracterizing their roles in
alleged criminal conduct and characterizing the clients as guilty," the suit
says.
In a court filing last week, Mince countered that her client isn't bound by the
rules governing attorneys' conduct. But she hasn't violated any confidentiality
requirements even if they did apply to her, Mince said. She added that
Langley's own attorneys have written numerous articles and given interviews
about the case.
In the essay, which is posted on her website, Marzano-Lesnevich recalls being
asked to visit Langley in prison. She wrote that she "knew he'd killed a boy"
and described the murder, including the "red ligature mark ringing the boy's
neck from where the man had used a piece of wire he'd found in the house."
"I knew he had done this only after suffocating the boy with a sock stuffed
down his throat, piling one method upon the other, killing the already dead,"
she wrote.
She also recalled representing a 21-year-old man who had "put bullets in the
head of a 3-year-old girl."
"He had pulled the trigger not once, not twice, but three times, landing all 3
bullets in the toddler's tiny head," she wrote. "No, he was not innocent."
Brenda Miller, editor-in-chief of the Bellingham Review, said in an email that
Marzano-Lesnevich's essay is a "wonderful piece of creative nonfiction" that
the journal was proud to publish last year. Although the edition in which the
essay appeared is still for sale, Miller said the Bellingham Review complied
with the center's demand to remove the piece from its website.
"We are a small journal, with a mostly volunteer staff running the journal on a
shoestring, and so could not afford the time or resources to get involved in a
legal process," Miller wrote.
Marzano-Lesnevich didn't respond to an email seeking comment, but her attorney
said she didn't want to be interviewed. The center's director, Richard Bourke,
also declined to be interviewed.
A state judge in Calcasieu Parish convicted Langley of 2nd-degree murder after
his earlier convictions were overturned on appeal. The center is asking the
Louisiana Supreme Court to review his latest conviction.
(source: Associated Press)
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