Feb. 25
UTAH:
Capital punishment debates highlight flaws in criminal justice system
In response to another My View about capital punishment debates, Wayne Overson
explains how the death penalty hurts the justice system more than it helps it.
As a retired professor of criminal justice from Weber State University, the
article by Marc Hyden ("Capital punishment legislation fails to consider real
problems," Feb. 10) was of special interest to me. I would like to add to it.
I believe that keeping the death penalty "on the books" is based on our
emotion. Not only is it possible to have executed the wrong person, but the
death penalty can also be used to coerce an innocent person into pleading
guilty in order to avoid being killed. An accused person may accept a plea
bargain to a lesser sentence with the hope of later being proved innocent. In
some cases, co-actors in a robbery, murder and/or other crime may lie as part
of their plea bargain. Are eyewitnesses completely reliable? Quite often I see
a person who strongly reminds me of someone else, even a good friend.
The death penalty does prevent future crime by the person who is executed.
However, as Mr. Hyden pointed out, it cannot be proved that the death penalty
prevents or deters crime that may be committed by others. In a Deseret News
article from a couple of years ago, during the half-year prior to the execution
of Ronnie Lee Gardner, there were 26 homicides and there were 26 more in the 6
months afterward. In fact, 2 murders took place later in the day of his
execution.
Mr. Hyden emphasized the waste of money for the years of court proceedings. My
contention is that not only is it a huge waste of money, but there is a
corresponding lack of money to prevent crime. How? There are at least three
ways to prevent future violent and nonviolent felonies. Haven't we all heard of
serial murder, rape, robbery, arson and so on? How many rape kits have not been
processed? And why not? I would also propose the creation of 2 state law
enforcement units. One unit would be assigned to investigate "cold" violent
crime cases. Additionally, more funds should be spent to enlarge the unit of
officers whose job is to search for, serve warrants on and arrest wanted
felons.
Why not drop capital punishment completely and spend the money saved to prevent
future crimes?
Maybe we should substitute the death penalty with a "virtual death penalty,"
where the convicted is never allowed visitors other than defense attorneys and
prison guards. And, who knows, the convicted may later be proven innocent. A
news article from 2014 reported that in 2013, in the United States, there were
87 prison inmates proven innocent and released.
In reality, our criminal justice system, due to human imperfections, is not
free of errors.
(source: Wayne Overson is a retired professor of criminal justice from Weber
State University----Deseret News)
MONTANA:
Death penalty repeal stymied
Representatives have voted down a bill that would end capital punishment in
Montana.
Members of the House of Representatives voted 50-50 on Monday to fail House
Bill 370 on 2nd reading. 3 Democrats and 47 Republicans voted against the
measure and 12 Republicans joined 38 Democrats in voting for it.
Republican Rep. David Moore of Missoula introduced the proposal in the House
Judiciary Committee on Feb. 13. Committee members passed the bill 11-10.
Representatives debated the repeal for more than 20 minutes. Supporters called
for life imprisonment over death. Opponents said repealing the death penalty
would be unfair to victims.
Similar bills have survived the Senate, but in the last 2 sessions have failed
in the House.
2 men currently imprisoned in Montana have been sentenced to die.
(source: Associated Press)
ARIZONA:
My Jodi Arias trial prediction: 100 % guaranteed
I know exactly how the sentencing trial of the convicted murder Jodi Arias will
turn out. And so do you.
Here's the verdict:
WE LOSE.
Taxpayers have spent millions of dollars on a death penalty case that shouldn't
have been a death penalty case in the first place. And we've spent a big bunch
more on a sentencing trial that should not have been a sentencing trial.
After the 1st jury convicted Arias but failed to make a decision on the death
penalty Maricopa County Attorney Bill Montgomery should have left the
sentencing decision up to Judge Sherry Stephens. Once the death penalty is off
the table the judge would have sentenced Arias to life in prison, period, or to
life with the possibility of parole after 25 years.
Instead, we are after all this time and all this expense, getting final
arguments from the Arias defense team and prosecutors in the sentencing trial.
If this 2nd jury also can't come up with a decision it will go to the judge,
where it should have gone in the first place.
Not that it matters anymore.
Even if prosecutor Juan Martinez gets the death penalty that he has lusted
after for so long there undoubtedly will be an appeal based on the numerous
objections the defense already has raised. Who knows how much that will cost
us. But the case will go on.
Arias will be in jail for all of this, of course, which is where she belongs.
But prosecutors could have, and should have, saved taxpayers a ton of money.
Arias murdered her boyfriend Travis Alexander in 2008. That seems like a long,
long time ago. There were nearly 30 knife wounds on his body. His throat was
slit. He was shot in the forehead. It was an awful, ugly crime for which Arias
deserves to spend the rest of her life in prison.
She may end up doing that even if this 2nd jury votes to give her the death
penalty.
The appeals drag on and on.
There's no mystery left in this case, and no mysteries left concerning the
outcome. Among the prosecutors and defense attorneys and the defendant there
will be no clear winners, no matter what happens with the sentencing jury.
But there will be one very clear loser.
Us
(source: Commentary, EJ Montini, The Arizona Republic)
*********************
Mohave County to retry death penalty case----High court overturned capital
punishment in murder case
Every person deserves his or her day in court.
Some of them get more than 1.
More than 2 months after the Arizona Supreme Court overturned the murder
conviction - and subsequent death penalty - of Darrell Bryant Ketchner, 57, the
Mohave County Attorney's office has decided to retry the case. They have done
so despite the fact Ketchner will still remain in prison for the rest of his
natural life due to convictions that were not reversed and add up to a 75-year
term.
But that time would not be served on death row, where Mohave County Attorney
Matt Smith firmly believes Ketchner should be.
On July 4, 2009, a raging Ketchner violated a restraining order and barged into
the Pacific Avenue home of his estranged girlfriend, Jennifer Allison.
There, he stabbed Allison's 18-year-old daughter Ariel Allison 8 times, killing
her. He also stabbed and shot Jennifer Allison in the head. Jennifer survived
after a lengthy convalescence, which left her with no memories of that night.
Ketchner was found passed out on the Cerbat Cliffs Golf Course the next day. He
had the handgun he used to shoot Jennifer Allison - it was hers - pornographic
movies, sex toys, zip ties and medications in his possession.
Prosecutor Megan McCoy prosecuted Ketchner in a trial filled with drama and
heartbreak.
Defense attorneys David Shapiro and John Napper never challenged the state's
contention that Ketchner killed Ariel Allison and grievously injured her
mother. Instead, they argued Ketchner did not intend to kill and maim that
night.
Premeditation is a key component of a 1st-degree murder conviction, but the
jury was not unanimous in that aspect of deliberations.
Still, they found 3 other aggravating factors did exist, and that was
sufficient for all 12 jurors to hand down the death penalty.
They also found Ketchner guilty of attempted 1st-degree attempted murder,
1st-degree burglary and 3 counts of aggravated assault.
Why was it overturned?
The testimony of a single witness, Dr. Kathleen Ferraro, was sufficient for the
Supreme Court to reverse the murder and burglary convictions, but the remaining
convictions were upheld.
The high court reversed the murder and burglary convictions because justices
believe Ferraro's testimony focused on "domestic violence patterns and the
general characteristics exhibited by domestic violence victims and abusers,"
according to the Supreme Court opinion.
Napper objected to Ferraro testifying during the trial, arguing she would
impermissibly create a profile that would unduly sway jurors. The issue was
raised on appeal, and the high court agreed with Napper's argument that
allowing Ferraro to testify was an abuse of discretion.
Ferraro also testified to separation assault. Jennifer Allison had requested
and been granted no less than 3 protective orders against Ketchner, and one was
in effect the night he went to her Pacific Avenue home and killed her eldest
daughter and tried to kill her.
Ferraro said abusers are very dangerous when the victim attempts to end the
relationship and they use violence to regain control.
Mohave County attorneys disputed the contention that Ferraro offered profile
evidence, arguing that Ferraro was called to testify not to show Ketchner fit
the profile of a domestic violence abuser profile, but to show the relationship
between the two was typical of abusive relationships.
What now?
Chief Deputy County Attorney Jace Zack said the case will begin as if it were
on the eve of trial.
While Zack has been advised Napper and Shapiro will again represent Ketchner,
Napper is now the Yavapai County Public Defender and by law cannot retry the
case. Whoever represents him, taxpayers will pay the bill.
According to the Arizona Department of Corrections, Ketchner remains on death
row despite the Supreme Court's reversal of his 1st-degree murder conviction.
Whether he will be transferred to the Mohave County jail to await trial is up
to the defense, said Zack. The issue will be decided based on which location
would make it easier for them to communicate with Ketchner - here rather than
at the Browning Unit, where death row is, in Florence.
State law calls for such cases to be retried within 90 days from the Supreme
Court's decision, but Zack said capital cases "always take longer."
(source: Kingman Daily Miner)
*************************
Lawyer urges Jodi Arias jury to spare her life, with pictures of happier times
A defense lawyer displayed a series of happy images of Jodi Arias on Tuesday as
he tried to garner sympathy from a jury that is deciding whether to send the
convicted murderer to prison or death row.
Lawyer Kirk Nurmi put the Arias photo album on display as he urged jurors to
spare her life. He called it a monumental decision as he asked jurors: "Would
you kill Jodi Arias for what she's done?"
"In some ways, the choice before you is simple, right? Life or death," Nurmi
said.
Nurmi showed jurors a series of photos from throughout Arias' life, including
images of her family and victim Travis Alexander. He reiterated that the
34-year-old Arias has borderline personality disorder and suffered physical and
emotional abuse from her parents and Alexander - claims that have never been
corroborated but have become a centerpiece of Arias' efforts to avoid the death
penalty.
Prosecutor Juan Martinez was scheduled to also make his closing argument
Tuesday.
Prosecutors said Arias attacked Alexander in a jealous rage after he wanted to
end their affair and planned a trip to Mexico with another woman. Arias has
acknowledged killing Alexander but claimed it was self-defense after he
attacked her.
The closing arguments in the penalty phase came as a lengthy trial is drawing
to a close.
Arias first went on trial in January 2013 in the deadly stabbing and shooting
of Alexander. She was convicted of 1st-degree murder 5 months later after a
salacious trial that revealed intimate details of her and Alexander's love life
along with gruesome details of the killing.
The same jury could not agree on a punishment for Arias, creating a new penalty
phase of the trial that began last year. That phase dragged on for several
months amid a series of expert witnesses and the surprising October decision by
Judge Sherry Stephens to remove reporters and spectators from the courtroom so
Arias could testify in private. A higher court halted the testimony on its
second day amid complaints from news organizations.
The retrial revealed few new details about the crime and was more subdued than
Arias' first trial, which turned into a media circus. At the retrial, the judge
barred the broadcast of footage from the proceedings until after a verdict is
reached. She did, however, agree to allow live broadcast coverage of the
sentencing verdict.
Arias passed up a chance Monday to address the jury, saying she wanted to make
such comments but insisting the courtroom be cleared. She said she wouldn't
make any remarks if she could be seen and heard from a remote viewing room.
Stephens said an appeals court has forbidden Arias from making such comments
behind closed doors.
(source: CBS news)
OREGON:
Brown must jump-start death penalty debate
New Oregon Gov. Kate Brown said last week she plans to continue a death-penalty
moratorium imposed by her predecessor while she seeks a debate about "fixing
the system."
It's the same narrow line that former Gov. John Kitzhaber was walking beginning
in 2011, when he announced that he would block all executions during his
tenure. Kitzhaber said at the time that he believed capital punishment is
applied arbitrarily and called for a statewide vote on whether Oregon should
continue to use the death penalty.
Then he did little to advance the issue, and it never gained much traction
during the 2014 campaign.
So here's what Brown should do: She should ask the Legislature - this session -
to refer the issue to Oregon voters. And she should vow to abide by the results
for as long as she's governor.
It has been more than 3 decades since Oregonians weighed in on the death
penalty in a statewide vote. It could very well be that the attitudes of state
residents toward capital punishment have changed since then.
But the only way to find out for sure is to push for a statewide referendum.
And the best way to kick-start the statewide debate on the death penalty that
Kitzhaber said he wanted and that Brown now says she wants is for the new
governor to use some of her political capital with the Legislature to push the
issue onto the ballot.
It's not clear why Kitzhaber didn't do more to deal with that issue in 2011 and
2012, after he unilaterally decided to give a reprieve to Oregon death row
inmate Gary Haugen, convicted of 2 murders. You'll recall that Haugen didn't
want the reprieve and sued over the issue, but the state Supreme Court ruled
that the governor was within his powers.
Maybe it's that Kitzhaber thought he had bigger fish to fry at the time. Maybe
it's that the Cover Oregon debacle started to draw too deeply into his store of
political capital.
Whatever the reasons were, they don't apply to Brown. She has the opportunity
now to revive the statewide debate. Our hope, as we have written before, is
that the debate ends with a resounding vote to abolish the death penalty.
If Brown chooses to let this opportunity slide, however, she may well be
vulnerable in 2016, when she is expected to run to fill the remaining two years
of Kitzhaber's term, to the same tough question that dogged Kitzhaber.
That question goes like this: The governor takes an oath to uphold the laws of
the state of Oregon. The death penalty - think of it what you will - still is
the law of this state. We know, governor, of your position on the death
penalty. What other laws will you choose to ignore?
(source: Editorial, Corvallis Gazette Times)
**************
Time and justice at odds on Oregon's Death Row
Timing is everything in the renewed scrap over Oregon's death penalty.
Gov. Kate Brown has extended John Kitzhaber's moratorium on executions because
she understands this may not be the time for a contentious "broader discussion"
on the just rewards for Randy Guzek, Jesse Caleb Compton and Craig Bjork.
Given the suddenness of Kitzhaber's vanishing act, no one is yet prepared to
resume hostilities over Gary Haugen.
And, finally, there's the crucial time stamp on those death sentences, a detail
that is all but lost in the timeless campaign by Oregonians for Alternatives to
the Death Penalty.
In Kitzhaber's final days in power, OADP urged him to commute the sentences of
the 34 long-suffering residents of Oregon's death row.
On Feb. 15, the advocacy group boldly announced, "While Governor Kitzhaber is
still in office ... he has the power to commute death row sentences, changing
them to life without parole."
Say again? "Life without parole."
"That is simply not true," Josh Marquis has countered, often, over the last 10
days.
Why? Because timing is everything. Marquis -- the district attorney in Clatsop
County -- was the prosecutor in three of Guzek's four death-penalty trials.
Should a governor commute a death sentence in Oregon, he argues, that inmate is
subject to the next most severe penalty available at the time he or she was
sentenced.
And for 7 of those found guilty of aggravated murder -- Guzek, Michael Martin
McDonnell, Marco Antonio Montez, Mark Allen Pinnell, David Lynn Simonsen,
Jeffrey Ray Williams and Robert Paul Langley -- life without parole is not an
option.
"When they committed their crimes and when they were sentenced, 'true life' was
not a penalty that existed in Oregon," Marquis says.
For the gentlemen sentenced before July 1, 1990, the only other option for the
somber juries was life ... with the possibility of parole after 30 years.
It's been difficult to find someone who disagrees with this. Only one member of
OADP's Board of Directors responded to phone calls or emails over the last
week.
"I think you are right that commutation would make several people eligible for
parole," Tom O'Connor, the former head chaplain with the Oregon Department of
Corrections, wrote. "I will check on the website and let you know."
As of 5 p.m. Tuesday, the OADP's curious argument was still prominently
featured on the website. Then, again, so was this Sister Helen Prejean quote:
"Government ... can't be trusted to control its own bureaucrats or collect
taxes equitably or fill a pothole, much less decide which of it's (sic)
citizens to kill."
The disdain for our imperfect union -- not to mention punctuation -- is almost
as savage as Prejean's contempt for juries.
"Hundreds of jurors - 48 in Guzek alone - took the tortuous path in deciding
death was the right decision in these cases," Marquis reminds us.
The last 12 Guzek jurors bumped into this problematic true-life issue in 2010.
One of the reasons Guzek's fourth death-penalty trial became necessary is that
the Oregon Supreme Court decided life without parole should have been an option
for the jury in Guzek III.
At the onset of jury selection, however, Guzek delivered a 6-page legal brief,
arguing that "the application of life without parole to my case" violated his
constitutional rights on several counts. After Judge Jack Billings took true
life off the table, Guzek was, once again, sentenced to death.
Unless these 7 death row waive ex post facto objections to sentencing options
that didn't exist prior to July 1990, Marquis says, commutation would make them
eligible for parole hearings.
In Guzek's case, that would force those who still love and remember Rod and
Lois Houser -- murdered by Guzek and Mark Wilson in 1987 -- to listen to him
preach about mercy and rehabilitation.
Time, I suspect, is pushing us in that direction. Time heals wounds. Haunts
witnesses. Ages prosecutors. Fogs memories. Numbs us all.
(source: The Oregonian)
USA:
Why I Oppose the Death Penalty: Redemption is Always Possible, so Killing is
Always Wrong
Imagine the worst thing you've ever done. Hold onto that thought for a moment.
Now ask yourself: Does that moment define you? Should that moment define you?
If you're like me, you'll find that even though we all make mistakes in life,
even though we all fall short of our greatest ideals and hopes, our worst
decisions don't necessarily reflect our true character. How many of us did
stupid things when we were younger? How many have committed acts we regret? As
we age, we make mistakes. As we make mistakes, we learn and grow.
How does it make sense, then, to brand convicted felons as permanently
"unworthy" of life? If we were truly rational and consistent in our moral
outrage, this possibility would be wholly untenable - for they, like us,
possess the capacity to change - yet we persist in our delusional thinking
about retributive punishment, character, and ethics. We forget why we condemn
murder in the 1st place - its incredible and horrible finality, its absolute
denial of any and all ability to learn and grow. This rebuff of human
potentiality confuses justice for vengeance.
Don't get me wrong: The death penalty is about many things - retribution,
punishment, anger, a misguided desire for some illusory "cosmic balancing" of
the scales of justice. Yet it is most about imagination. Because even though
society takes solace in a belief that the people we legally murder deserve
death because they once caused it, this rationale lies in the realm of fiction,
not reality. Because people change.
The men and women who were sentenced to death decades ago are not the same men
and women alive today. After languishing for perhaps 15 years in solitary
confinement, one finds a lot of time to think and to read and to reminisce and
to regret and to immerse oneself in redemptive activity and thought. While of
course not all death row inmates avail themselves of these opportunities, many
do. Many go through a crucible of pain and suffering and emerge as better
people, as people who are shed of past wrongdoings in character if not in deed,
as people who are immersed in religion or philosophy or wisdom drawn from a
well of mistakes made and sufferings suffered.
As a result of the mere existence of this natural process of change, we are (in
a sense) executing innocent people: That is to say, we are killing men and
women so far changed from who they were when they committed their horrendous
crimes that to say we are doling out truly retributive justice - much less just
justice - is nonsensical. We aren't executing the same person. We are killing,
instead, a much-improved "version" of the criminal we sentenced, a person who
bears little to no resemblance to the dumb, inexperienced kid who committed a
heinous crime perhaps 15 or 20 years ago.
Anecdotes are plentiful. There is William Happ, who committed a brutal murder
in 1986 only to recant decades later. There is Robert Waterhouse, who may well
have been innocent in the legal manner rather than the manner I use the term in
this essay, and who maintained his innocence until the end. The list is
tragically long. For every death row inmate who didn't change for the better
after his sentencing, there is another who recanted in sincere and moving ways.
What good does it do to kill these people? What good, when they have made so
much moral progress?
The death penalty is dying; it's only a matter of time. How many people will it
need to take with it? Society rightly condemns murder because death is the very
definition of finality. It can't be undone. So of course I understand why the
impulse to kill those who kill exists. Faced with the death of a loved one, I
sometimes wonder whether I myself would be able to uphold my ideals and forgo
the impulse for retribution. I don't have the temerity to judge anyone who
supports the death penalty.
But killing people who kill is wrong for the same reasons killing others is
wrong: Death's finality denies all possibility of change. By killing people who
kill, we either (1) kill men and women who have changed for the better or (2)
deny murderers the possibility of reforming their characters and lives. This is
repugnant to all moral systems, but especially Christianity. In the immortal
words of Justice William Douglas, the "principle of forgiveness and the
doctrine of redemption are too deep in our philosophy to admit that there is no
return for those who have once erred."
Murder is the most heinous crime there is. But it is a better society where
murderers, already justly suffering through a life in prison, can at least
meditate on their crimes and redeem themselves by changing - mentally - for the
better. Killing killers denies the possibility of redemptive change while
perpetuating the very crime that put these people in prison in the first place.
If we are really consistent in our condemnation of murder, if we truly
acknowledge the power of change and the possibility for redemption, we should
not ourselves - through our votes and through our politics - become collective
murderers.
Stop killing people.
(source: Michael Shammas, Harvard Law Record)
**************************
Boston Bar Asks Obama's AG Nominee To Remove Death Penalty In Tsarnaev Case
There's a new call for the death penalty to be taken off the table in the
federal trial of accused Boston Marathon bomber Dzhokhar Tsarnaev.
The Boston Bar Association is asking President Obama's nominee for U.S.
attorney general to remove the death penalty from consideration.
The 1st president of the Boston Bar Association was the 2nd president of the
country: John Adams. Almost 12,000 lawyers belong to the group. And its
opposition to the death penalty is not new either.
But the BBA has found a new opportunity now, with the Tsarnaev trial headed for
high gear.
Julia Huston, the president of the Boston Bar Association, is reaching out to
Obama's nominee, federal prosecutor Loretta Lynch, of the eastern district of
New York.
"We are hopeful that the new attorney general will revisit the issue and
perhaps give consideration to a plea agreement that involves life imprisonment
as an alternative to the death penalty," Huston said.
The BBA statement says a sentence of life without parole for Tsarnaev "will
more swiftly bring a close to this chapter in our history."
*****************
Why The Boston Bar Association Wants The Death Penalty Removed From Tsarnaev
Trial
With a jury expected to be in place in the federal trial of accused Boston
Marathon bomber Dzhokhar Tsarnaev, there is a new call to take the death
penalty off the table and allow a plea deal instead.
The call comes from the Boston Bar Association, which BBA President Julia
Huston says has opposed the death penalty for more than 40 years. She joins
Morning Edition to explain the group's position.
Why The BBA Is Pushing For This Now
Julia Huston: "The Boston Bar Association has opposed the death penalty for
more than 40 years. In the latter part of 2013, we specifically studied the
application of the death penalty in non-death penalty states, such as
Massachusetts, in federal trials. And we recommended that the death penalty not
be applied in such states due to systemic problems with the death penalty that
make it impossible to administer fairly.
'3 Fundamental Problems With The Death Penalty'
1) 'Innocent people will die'
JH: "First, the inevitability of error in criminal cases makes it
overwhelmingly likely that applying the death penalty will lead to the
execution of innocent defendants. We know that this has happened - it happens a
lot. So, innocent people will die."
2) Applied to miniorities unfairly
JH: "In practice, the death penalty has a disproportionate impact on members of
racial and ethnic minorities."
3) Death penalty is expensive
JH: "Pursuit of the death penalty is incredibly expensive. It is often 8 times
the cost of seeking a punishment of life without parole, and we think that that
is not a sensible allocation of resources in a criminal justice system already
laboring under huge financial strain."
On Why Emotion Should Not Drive Decision To Apply Death Penalty
JH: "Certainly, our hearts go out to the victims of this horrible crime. It is
difficult to imagine a more horrible crime than the kind of mass terror alleged
in this case. There is a lot of emotion around this issue. But we don't believe
that emotions should drive the decision of whether to apply the death penalty
if in fact Tsarnaev is determined to be guilty.
Because of these systemic problems, we as a society need to look at the death
penalty in a different way - not just in an emotional way in a single case, but
as a system. And this is a system that does not work."
Boston Bar Says Plea Bargain Would Bring 'Speedy Closure' To Tsarnaev Case
"We believe that the better course for the residents of Boston and the people
who were affected by this tragedy is to allow this defendant to plead guilty -
should he wish to do so - in exchange for life in prison without parole. That
will bring speedy closure to this case rather than years of uncertainty and
appeals."
(source for both: WBUR news)
US MILITARY:
Guantanamo defense attorney: Emails portray Pentagon meddling in death-penalty
trials
A USS Cole case defense attorney read aloud from just disclosed emails Tuesday
in a ongoing bid to portray a recent order to war court judges to 5 permanently
at Guant???namo as unlawful meddling meant to rush justice in the death-penalty
case.
Navy Cmdr. Brian Mizer, defending Abd al Rahim al Nashiri, said the documents
he got through a court order overnight demonstrated that the Pentagon office
knew that the rule change adopted last month would not just make waves but
could constitute the U.S. military crime of unlawful influence.
"In trying to speed up a trial, are we affecting its fairness?" wrote a legal
adviser, Cmdr. Raghav Kotval, on the staff of the Convening Authority for
Military Commissions. "If, for example, the judge is less inclined to grant a
continuance because it means more time on Gitmo, is that adverse to the
accused?"
The Nov. 14 email circulated among U.S. military legal staff reviewing a
proposed war-court regulation for the Convening Authority, retired Marine Maj.
Gen. Vaughn Ary, the Pentagon-based overseer of military commissions. Less than
a month later, on Dec. 9, Ary formally asked Deputy Secretary of Defense Robert
Work for the change. Work did just that on Jan. 7, ordering judges assigned to
Guantanamo cases to give up their prestigious day jobs.
Defense lawyers cast the open-ended relocation order to judges living with
family in more comfortable settings in Italy and the East Coast of the United
States as punishment that exiles them for not proceeding swiftly through a
complicated pretrial phase to trials. The 9/11 and USS Cole case judges have
spent years navigating thorny pretrial issues - such as torture and secrecy,
CIA involvement in the court and evolving war court law.
A case prosecutor, Navy Lt. Paul Morris, dismissed the documents as nothing
more than routine "brainstorming of potential issues" among colleagues. Another
prosecutor, Army Col. Robert Moscati, said there was no proof that their boss,
Ary, knew of the reservations they raised.
Ary was scheduled to testify Wednesday by video-teleconference from his
headquarters outside Washington, D.C.
In a filing, prosecutors defend the judge's move-in order as simply surging
staff to the war court for "the increased operational tempo that's expected."
The 3 war court judges hearing Guantanamo cases have not complied, in part,
because the top lawyers in the Army, Navy and Air Force were taken by surprise
by the decision that strips them of judges who handle the courts-martial of
American service members, too.
Mizer cast Kotval as a potential whistleblower, and asked the judge to order
his testimony along with that of 2 other U.S. military officers serving as
Ary's legal advisers in the email chain that received this from Kotval:
"Issue: Are we coercing or by unauthorized means influencing the action of a
judge?" he wrote. "If not, why are we intruding on what is not typically or
traditionally a convening authority's role. What is the explanation for the
action?"
Defense attorneys call the order an example of unlawful command influence - a
crime in the U.S. military - designed to rush the judges to trial so they can
leave this remote base. They want the case dismissed.
Nashiri, a 50-year-old Saudi, is accused of masterminding the al-Qaida suicide
bombing that killed 17 U.S. sailors off the coast of Yemen, and the Pentagon
prosecutor wants him executed if convicted.
But his trial has been mired in complex pretrial proceedings involving secrecy
surrounding his 2002-06 detention in the CIA's secret prison network before he
was brought to Guantanamo for possible trial.
Judge Spath, for his part, sounded troubled that there was no wider
consultation, for example with the top lawyers of the different services,
before Ary went to the Deputy Secretary of Defense.
He left open the possibility that he might call some of the emailers in Ary's
office as witnesses - as well as the Army's top lawyer, Lt. Gen. Flora Darpino,
who according to another email that surfaced in the case was resisting the
Pentagon order to provide judges to the war court declaring, "I can't afford to
lose them to Cuba."
Spath said he was also troubled to see a staffer's email declaring - "The
judges and the defense are aligned on this issue" and "The judges don't want to
move" - and wondered aloud if the junior lawyers on Ary's staff got that
impression from the boss.
Spath added that the question of "unlawful influence" could "permeate
everything in a trial," and that he would address nothing else at Guantanamo
until the issue was resolved.
"I want to get you a ruling while we're down here," he said, "so we can all
then go to our respective places and deal with whatever fallout that might
bring."
(source: Miami Herald)
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