Aug. 16
TEXAS----new execution date
Dad who killed girls has new execution date
John Battaglia - the man who murdered his young daughters out of revenge while
their mother listened over the phone - has a new execution date.
State District Judge Robert Burns scheduled the execution for Dec. 7.
That doesn't necessarly mean the lethal dose of drugs will be administered
inside the state's death chamber in Huntsville. A federal court has ordered a
hearing to look into Battaglia's claims of mental incompetency. The execution
date had to be set before the hearing could take place.
Battaglia, now 61, was scheduled to be executed in March but won a last-minute
stay from the 5th U.S. Circuit Court of Appeals so his lawyer could pursue the
incompetency claims.
No date has been set for the hearing in Burns' court.
Battaglia was sentenced to death for killing Faith, 9, and Liberty, 6, at his
Deep Ellum loft in May 2001. He arranged a call with his ex-wife, who listened
on the phone as the older girl begged: "No, Daddy! Don't do it!"
He later headed to a nearby tattoo parlor to have 2 red roses etched on his arm
in memory of the girls. That night, he recorded a message on their answering
machine: "Good night, my little babies. I hope you are resing in a different
place. I love you."
Psychiatrists testified for the defense at his trial that Battaglia suffered
from bipolar disorder. An adult daughter from his 1st marriage later said he
was also diagnosed with narcissistic personality disorder, characterized by
manipulative behavior, a hyper-inflated sense of self-improtance and lack of
empathy.
Christine Womble, an appellate attorney at the Dallas County's district
attorney's office, has said she's "confident" of Battaglia's guilt and his
competency.
One of Battaglia's attorneys, Gregory Gardner, argued in court documents that
Battaglia has long "exhibited bizarre behavior consistent with severe mental
illness."
In a 2014 interview with The Dallas Morning News, Battaglia said he was "a
little bit in the blank" about what happened to Faith and Liberty.
"I don't feel like I killed them," he said.
He called his daughters his "best little friends," just the "nicest little
kids" imaginable, and said he doesn't grieve for them beacuse they remain with
him.
"Why would I worry about where they are now?" he asked. "We're all here, we're
all gone at the same time. I'm not worried about it."
(source: Dallas Morning News)
**************************
Executions under Greg Abbott, Jan. 21, 2015-present----19
Executions in Texas: Dec. 7, 1982----present-----537
Abbott#--------scheduled execution date-----name------------Tx. #
20---------August 24----------------Jeffrey Wood----------538
21---------August 31----------------Rolando Ruiz----------539
22---------September 14-------------Robert Jennings-------540
23---------October 5----------------Barney Fuller---------541
24---------October 19---------------Terry Edwards---------542
25---------November 2---------------Ramiro Gonzales-------543
26---------December 7---------------John Battaglia--------544
(sources: TDCJ & Rick Halperin)
NORTH CAROLINA:
North Carolina to Mark 10 Years Since Last Execution
The death chamber at Central Prison in Raleigh has sat empty since the morning
of August 8, 2006. That was the last time an inmate was executed in North
Carolina.
"In North Carolina in particular, there has been a law change last year to make
it easier to implement the death penalty," said Steven Friedland with Elon
School of Law. "It's no longer requiring doctors, it's other medical
professionals. However, it does not mean that the state will overcome all of
these issues that still are on the table."
Lawsuits prompted the moratorium, after concerns about the way executions are
carried out in North Carolina and additional questions if physicians could give
the lethal injections. There are also ongoing questions about racial bias in
sentencing and potential botched executions.
"The death penalty is, of course, the ultimate protection," said Friedland.
"The question is, is it fair? And is it cruel and unusual punishment under the
8th Amendment to the Constitution?"
In the time since the moratorium has been in place, 4 people have been released
from death row and exonerated. Some argue it may be time to put an end to the
death penalty in North Carolina.
"I think we feel like the writing is on the wall," said Kristin Collins with
the Center for Death Penalty Litigation. "Nationally the number of executions
is going down and down and down each year. There have only been 3 states that
have managed to carry out an execution in 2016."
Right now, 31 states have the death penalty, but several states have done away
with their death penalty in the past few years.
"It's been 10 years since we have had an execution, and during that time the
murder rate has actually declined," said Collins. "So the argument that we need
to be executing people as a deterrent to crime and murder doesn't seem to be
holding up."
For North Carolina, the death penalty will continue to remain in limbo as
litigation continues.
(source: twcnews.com)
FLORIDA:
Deltona murder suspect Luis Toledo has court date amid death penalty questions
While the Florida Supreme Court has yet to rule on the state's death penalty, a
hearing is set Friday for Luis Toledo, the Deltona man accused of killing his
wife and her 2 children.
Toledo is charged with 2nd-degree murder in the killing of his wife, Yessenia
Suarez, 28, and two counts of 1st-degree murder in the killing of her children,
Thalia Otto, 9, and Michael Otto, 8. If convicted of killing the children,
Toledo could face the death penalty. Their bodies have not been found. The
hearing for Toledo is set before Circuit Judge Raul Zambrano at the Volusia
County Courthouse in DeLand.
A trial date in the fall had been discussed as attorneys sought more time for
issues over the death penalty to be settled but questions remain as the state
Supreme Court has yet to issue its ruling.
Just days before Toledo, 34, was to go on trial in January, the U.S. Supreme
Court struck down Florida's death sentencing process. The state legislature
quickly revamped the death penalty law, but did not require a unanimous vote
for death by the jury.
The Florida Supreme Court is now reviewing Florida's death penalty in light of
the U.S. Supreme Court decision and challenges brought by attorneys in other
Florida cases.
Once the state Supreme Court rules, a committee it appointed will get back to
work on drawing up death penalty instructions for jurors. The Supreme Court
committee tasked with writing the instructions is chaired by Judge F. Rand
Wallis of the 5th District Court of Appeal in Daytona Beach.
Wallis said in a phone interview that the committee requested public comments
and the general response from attorneys was that drafting the jury instructions
before the state Supreme Court's decision would be premature. The committee
decided to stop working on the instructions and wait for a decision.
"There are going to be a number of constitutional challenges to the statute and
some have already been argued in front of the Supreme Court," Wallis said.
The U.S. Supreme Court struck down Florida's death sentencing process because
it said it gave judges too much power and gave jurors too little. The
Legislature changed Florida's law so that jurors must unanimously agree on at
least 1 aggravator which would support the imposition of the death penalty.
Florida had required only a simple majority recommendation for death by the
jury for a judge to be able to impose the death sentence. The Legislature made
it tougher by requiring a 10-2 vote for death. But it still left Florida as
only 1 of 3 states that did not require a unanimous jury vote for death before
a judge could impose a death sentence.
That means some big questions remain, such as whether the U.S. Supreme Court's
decision is retroactive and whether a 10-2 vote is enough.
"What findings are acceptable being 10 to 2 and what needs to be unanimous, so
there's a lot of unknown's right now," Wallis said.
Wallis said once the state Supreme Court makes its rulings the jury
instructions will be a high priority.
"Once the law is clear the jury instructions should follow because obviously
there are cases that are pending in the trial court that want to know how to
apply the statute and how to instruct the jury," Wallis said.
State Attorney R.J. Larizza declined to comment for this story through a
spokesman saying it would be improper due to the pending death penalty cases.
(source: Daytona Beach News-Journal)
ALABAMA:
The Legacy of Lynching, on Death Row----In Alabama, Bryan Stevenson is saving
inmates from execution and memorializing the darkest episodes of America's
past.
In 1989, a 29-year-old African-American civil-rights lawyer named Bryan
Stevenson moved to Montgomery, Alabama, and founded an organization that became
the Equal Justice Initiative. It guarantees legal representation to every
inmate on the state's death row. Over the decades, it has handled hundreds of
capital cases, and has spared 125 offenders from execution. In recent years,
Stevenson has also argued the appeals of prisoners around the country who were
convicted of various crimes as juveniles and given long sentences or life in
prison. One was Joe Sullivan, who was thirteen when he was charged in a sexual
battery in Pensacola, Florida. Sullivan's original trial, in 1989, established
that he and 2 older boys had burglarized the home of a woman named Lena Bruner
on a morning when no one was there. That afternoon, Bruner was sexually
assaulted in the home by someone whose face she never saw. The older boys
implicated Sullivan, and he was convicted. They served brief sentences.
Sullivan was sentenced to life in prison, with no possibility of parole.
In 2005, the Supreme Court decided Roper v. Simmons, a landmark ruling that
held that states could no longer execute offenders who had committed their
crimes before the age of 18. At the time, the Equal Justice Initiative had
several clients in Alabama who had been charged when they were teen-agers and
were now exempt from execution. To inform them of the ruling, Stevenson went to
death row at the Holman Correctional Facility. He described his visit to me as
we sat in his windowless office at E.J.I.'s headquarters, a converted warehouse
in downtown Montgomery.
"When I went down and started talking to the guys and said, 'I've got great
news, they're not going to execute,' it wasn't, like, joy, because they were
all still quite young," Stevenson recalled. "It was just another kind of death
sentence. 'Oh, 70 more years in prison.'"
But Stevenson saw an opportunity in the Roper ruling. "The Court was saying, in
a categorical way, 'Look, children are fundamentally different from adults.'"
If the Supreme Court ruled that children were too immature to be sentenced to
death, Stevenson reasoned, then they shouldn't be sentenced to life, either. In
order to push for an extension of Roper, he needed to find a test case. He
began a nationwide search for inmates who had been convicted of crimes as
juveniles and sentenced to life without parole.
Joe Sullivan is 40 now, and he lives in the Graceville Correctional Facility, a
privately run prison in a remote part of northern Florida. His speech is
halting and slurred, owing to a long-standing mental disability and to multiple
sclerosis, which was diagnosed more than 20 years ago. "I didn't do nothing,"
Sullivan told me. "I was just with the wrong people at the wrong time. They
said I'm the mastermind to everything. They said I did a sexual battery. I
couldn't spell 'sex' in those days."
On November 9, 2009, Stevenson stood before the nine Justices of the Supreme
Court and began, "Mr. Chief Justice, and may it please the Court: Joe Sullivan
was 13 years of age when he was arrested with 2 older boys, one 15 and one 17,
charged with sexual assault, ultimately convicted, and sentenced to life
without parole. Joe is 1 of only 2 children this age who have ever been
sentenced to life without parole for a non-homicide, and no child has received
this sentence for non-homicide in the last 18 years." The Justices dismissed
Sullivan's case on procedural grounds, but in a companion case, argued earlier
that day, they had embraced Stevenson's argument: juveniles in non-homicides
could not be sentenced to life.
After the decision, Stevenson took Sullivan's case back to the Florida trial
court for resentencing. In light of Sullivan's record in prison, the Florida
Department of Corrections informed him that he would be released on June 30,
2014. Sullivan had had a rough time in custody. As a young teen in an adult
state prison, he had been the victim of numerous sexual assaults. His current
prison was not a violent place, Sullivan told me, but his M.S. had got much
worse. "As he became someone who couldn't walk, and needed a wheelchair, the
state was terrible in recognizing his needs," Stevenson said. "He was basically
in a dorm where he was forced to walk places. This caused mini seizures, which
will leave him more impaired." Sullivan had had only sporadic contact with his
family over the years, and his only visitors came from E.J.I. In anticipation
of his release, Stevenson rented a wheelchair-accessible apartment for Sullivan
just outside Montgomery. "Mr. Bryan, he's like my father," Sullivan told me.
"He gave me a lot of hope.
3 weeks before Sullivan's scheduled release, he received a notice from the
Department of Corrections stating that his release date had been miscalculated.
The correct date was December, 2019 - more than 5 years later. Stevenson has
gone back to court to challenge the department???s determination, but Sullivan
remains incarcerated. (State officials have declined to comment.) "It's been
very frustrating," Stevenson said. 'We were just all set. Joe sent me a
Father's Day card. It breaks your heart." Sullivan remains hopeful. "I say,
'PUSH yourself every day,'" he told me. "PUSH - Pray Until Something Happens."
Was the Sullivan case a success or a failure? It was, in one sense, a great
victory, because Sullivan, who was facing the prospect of dying in prison, will
now be released at some point. But, almost 3 decades after he was incarcerated,
he remains in prison, in a wheelchair. Of course, Stevenson has experienced
grimmer disappointments in his career as a death-row lawyer. Stephen Bright,
the president and senior counsel of the Southern Center for Human Rights, told
me, "Many people do this work only for a period of time. It's a very brutal
practice. Your clients get killed."
Stevenson and his colleagues have managed to slow, but not stop, the
death-penalty machinery in Alabama - an enormous challenge in view of the
state's conservative and racially polarized politics. Alabama has an elected
judiciary, and candidates compete to be seen as the toughest on crime. It's
also the only death-penalty state in which judges routinely overrule juries
that vote against imposing death sentences. (In their campaigns, judges boast
about the number of death sentences they've imposed.) Alabama's population is
about 27 % African-American. The 19 appellate judges who review death
sentences, including all the justices on the state Supreme Court, are white and
Republican. 41 of the state's 42 elected district attorneys are white, and most
are Republican. The state imposes death sentences at the highest rate in the
nation, but the Equal Justice Initiative has limited the number of executions
to 22 in the past decade, and there has been only 1 in the past 3 years. "It's
just intensive case-by-case litigation," Stevenson told me. "We've gone more
aggressively than anyone in the country on racial bias against
African-Americans in jury selection. We have extensive litigation on the
lethal-injection protocols. We identify inadmissible evidence. We push hard on
every issue."
But Stevenson, who is 56, has come to believe that the defense of people
enmeshed in the criminal-justice system, while indispensable, is an inadequate
response to the deeper flaws in American society. He served on President
Obama's Task Force on 21st Century Policing, and he has been an ally of the
Black Lives Matter movement. The recent police shootings of African-American
men in Baton Rouge, Louisiana, and outside St. Paul, Minnesota, have increased
his pessimism. "These police shootings are symptoms of a larger disease," he
told me. "Our society applies a presumption of dangerousness and guilt to young
black men, and that's what leads to wrongful arrests and wrongful convictions
and wrongful death sentences, not just wrongful shootings. There's no question
that we have a long history of seeing people through this lens of racial
difference. It's a direct line from slavery to the treatment of black suspects
today, and we need to acknowledge the shamefulness of that history."
After a TED talk in 2012, called "We Need to Talk About Injustice," Stevenson
is said to have received the longest standing ovation of any speaker, and the
talk has been viewed more than 5 million times on the Internet; it raised a
million dollars for his organization, and propelled a death-row lawyer into a
public figure. His 2014 memoir, "Just Mercy: A Story of Justice and
Redemption," spent years on best-seller lists. He is in constant demand as a
lecturer across the country, and he's booked for commencement addresses years
in advance.
As a longtime resident of Montgomery, he often thinks about Rosa Parks, whose
refusal to sit at the back of a local bus in 1955 set off the modern era of the
civil-rights movement. "We have reduced her activism to this celebratory tale -
'It was all great,'" he told me. "Here's what most people don't know. After the
boycott was declared officially over, and black people were sitting on the
buses, there was unbelievable violence. There were a dozen people who were shot
standing waiting on buses. We had white people going around Montgomery shooting
black people who dared to get on the buses." For a time after the boycott, the
city shut down bus service altogether. And then, to make way for the I-85
highway, the local authorities, led by a state transportation commissioner who
was also a member of the Ku Klux Klan, bulldozed the city's major middle-class
black neighborhood.
Stevenson believes that too little attention has been paid to the hostility of
whites to the civil-rights movement. "Where did all of those people go?" he
said. "They had power in 1965. They voted against the Voting Rights Act, they
voted against the Civil Rights Act, they were still here in 1970 and 1975 and
1980. And there was never a time when people said, 'Oh, you know that thing
about segregation forever? Oh, we were wrong. We made a mistake. That was not
good.' They never said that. And it just shifted. So they stopped saying
'Segregation forever,' and they said, 'Lock them up and throw away the key.'"
That dark view of American history may explain a passage in "Just Mercy," in
which Stevenson describes a failed attempt to stop the 2009 execution of a
49-year-old client named Jimmy Dill, who had severe mental impairments. He had
wounded a man during a botched drug deal in 1988. Months later, as the victim
was recovering, his wife, who had been caring for him, left him, and his health
deteriorated. He eventually died, and Dill was resentenced for murder. Dill's
mental impairments might well have entitled him to a reprieve from the death
penalty, but he couldn't afford lawyers, and missed various procedural
deadlines for appeals. When Stevenson took the case, a few weeks before the
execution, it was too late. "After working for more than 25 years," Stevenson
wrote, "I understood that I don't do what I do because it's required or
necessary or important. I don't do it because I have no choice. I do what I do
because I'm broken, too."
The family of Stevenson's mother, Alice Golden, like that of millions of other
African-Americans, took part in the Great Migration from the rural South to the
urban North in the early 20th century. They went from Virginia to Philadelphia,
where Alice was born. She later reversed the customary trajectory when she
married Howard Stevenson, in 1957, and went south with him, a little more than
a hundred miles, to his home town of Milton, in rural Delaware. They had 3
children: Howard, Bryan, and Christy.
"You have to understand that there are 2 Delawares," Howard Stevenson told me.
"The north, around Wilmington, is basically part of the North, but we lived in
the south, which was part of the South. It was very rural, very country. We
lived basically in the woods, farm country. We lived next door to my uncle and
aunt, and he used to slaughter hogs."
Their mother never forgot her roots in Philadelphia. "She didn't want us to
grow up with a southern-Delaware frame of mind," Howard said. "She did all she
could to make sure we never forgot the rest of the world. There were places
around us with no running water, so Philly was the gateway to the rest of the
world." Alice Stevenson placed a heavy emphasis on education; Christmas
presents were microscopes, not footballs. She also had strong views on racial
equality. "Some of the black folks in southern Delaware were much more
deferential in the face of white people," Howard said. "Her style was
different. She didn't believe in accepting any kind of racism." Once, when
Bryan was in 1st grade, she wrote a letter to the town newspaper calling for
the integration of the local public schools. Another time, a few years later,
she protested when the town's public-health officers asked the black children
to stand at the back of the line to receive their polio vaccines. "She made
such an issue of it that for a moment we weren't sure if they'd even give us
our shots," Bryan recalls.
In the 60s, when the Stevenson children were growing up, the neighborhoods,
schools, and swimming pools of southern Delaware were all segregated, in fact
if not by law. "There was never a time you could get the majority of people in
Alabama or Mississippi, or even southern Delaware, to vote to end segregation,"
Bryan told me. "What changed things was the rule of law, the courts. Brown v.
Board of Education was ushered in by a movement, but it was a legal decision.
And so, for me, I went down the law path, because to be a politician trying to
do anti-discrimination work meant you had to work in a handful of communities
that were basically majority black." The jurisdiction of the courts applied
everywhere.
Both of Bryan's parents had long commutes to jobs in the northern part of the
state. Alice Stevenson had a civilian post at Dover Air Force Base and became
what would later be called an equal-opportunity officer, working to insure that
African-Americans received fair housing and education. Howard Stevenson was a
lab technician at a General Foods plant in Dover. "We believed that our dad
thought he could feed us completely based on what he snuck home from G.F.,"
Bryan told me. "I've avoided Jell-O since I was 10." The Stevenson children
absorbed their mother's lessons. Howard Stevenson is a professor of urban
education and Africana studies at the University of Pennsylvania; Christy, the
youngest of the 3 children, teaches music at an elementary school in Delaware.
Bryan followed Howard to Eastern College, a small Baptist-affiliated school
outside Philadelphia, where he majored in history and philosophy. Then he
applied to Harvard Law School, which turned out to be a disappointment. "The
courses seemed esoteric and disconnected from the race and poverty issues that
had motivated me to consider the law in the first place," he wrote in his
memoir. But as a 2nd-year student, in December, 1983, he took a monthlong
internship at what was then called the Southern Prisoners Defense Committee, in
Atlanta. Stephen Bright, the organization's leader, happened to be on the same
flight to Atlanta as Stevenson. "By the time the plane landed, we were very
close," Bright recalled. "Bryan had found his calling." He joined the group
after graduating, in 1985, replicating his mother's migration south - which
worried members of the family. "When I heard he was going on his own down
there, I almost fainted," Fred Bailey, Stevenson's cousin and a retired
Philadelphia police detective, said. "Bryan's a humble guy and a spiritual guy,
and he sees the good in everyone. But he knew no one. And he had no family down
there."
Bright's group did death-penalty and prisoners'-rights litigation in a hostile
region and era. "We were the dance band on the Titanic, this very small group
of 8 or 9 people trying to hold back this tide of executions in the old
Confederacy," Bright said. The lawyers divided up the region, and Stevenson,
more or less by happenstance, was assigned the cases in Alabama. He showed an
aptitude for death-penalty litigation, which is both emotionally taxing and
technically demanding. Capital cases have a complex choreography, involving
multiple courts in state and federal jurisdictions, all with their own
deadlines, rituals, and rules. Lawyers' mistakes can prove fatal.
The crime rate rose in the late 80s and early 90s, and the few death-penalty
lawyers in the South became overwhelmed. In response, a group of lawyers and
judges persuaded Congress to fund several state-based death-penalty defense
organizations, called resource centers. In 1989, Stevenson, who was still in
his late 20s, was appointed to run the Alabama operation. When Republicans took
control of Congress after the 1994 midterm elections, one of their first acts
was to eliminate funding for the resource centers. Stevenson turned the Alabama
resource center into a nonprofit, the Equal Justice Initiative, which survived
largely because he was awarded a MacArthur grant the following year, and he
used the cash, about 300,000 dollars, to keep the organization afloat.
In time, Stevenson achieved a measure of economic stability for E.J.I., thanks
mostly to grants from various foundations and a yearly fund-raiser in
Manhattan. (With an annual operating budget of 6 million dollars, the
organization now employs 17 full-time attorneys and 12 legal fellows, young
lawyers who spend 2 years with the group.) "We were having success in
overturning these convictions that are wrongful, but it became clear that race
was the big burden," Stevenson told me. "By 2006 or 2007, I had begun to
realize that we were going to have to get outside the courts and create a
different narrative about race, race consciousness, racial bias, and
discrimination in history before we can go back into the courts and expect the
courts to do the things that they did 60 years ago, or to create the kind of
environment where we could actually win."
Around this time, Stevenson began studying Alabama history. He didn't have to
look far to find it. The E.J.I. warehouse is on Commerce Street, in Montgomery;
the original commerce conducted there was in enslaved people. E.J.I.'s offices
stand at nearly the midpoint between the dock on the Alabama River where the
human cargo was unloaded and Court Square, which was one of the largest
slave-auction sites in the South. Between 1848 and 1860, according to E.J.I.'s
research, the Montgomery probate office granted at least 164 licenses to slave
traders operating in the city. Thousands of people were auctioned a few hundred
yards from where Stevenson practices law. Slaves awaiting auction were held in
chains on the site where E.J.I.'s warehouse was later built.
Montgomery has dozens of cast-iron historical markers celebrating aspects of
the Confederate past. Stevenson wanted to put a marker up in front of E.J.I.'s
door, to point out the presence of the slave trade. "We went to the Historical
Commission and said, 'How do you get a marker up?'" Stevenson recalled. He was
told that if he provided accurate information the commission would erect a
marker. E.J.I. put together a 60-page proposal for 3 markers commemorating the
slave trade. Norwood Kerr, of the Alabama Department of Archives and History,
e-mailed E.J.I. in response:
I have considered your request for the Alabama Historical Association to
support the placement of 3 historical markers relating to the city's slave
trade. While your scholarship appears accurate . . . I do not think it is in
the best interests of the Association to sponsor the markers given the
potential for controversy.
For several years, Stevenson has taught part time at the New York University
School of Law, but he doesn't have his own apartment in the city. He lives on
his N.Y.U. earnings and takes no salary from E.J.I. His personal style is
nearly ascetic. He has never married. Keeping a promise that he made to his
grandmother when he was a teen-ager, he has never let a drop of alcohol pass
his lips. (Alcoholism plagued his family.) For years, he lived in a series of
small apartments in Montgomery, until he decided to renew his commitment to the
piano, which he once played semi-professionally in jazz groups. He decided to
buy a piano, then a house, but rarely finds time to play. E.J.I. has no
development staff, so Stevenson must raise the 6-million-dollar budget
virtually alone. Between fund-raising and court appearances, he travels
incessantly. Before one of my visits to Montgomery, he had been on planes for
12 consecutive days; before another, 7 days.
He has cultivated a network of supporters around the country. In the E.J.I.
break room, a state-of-the-art Starbucks machine dispenses free coffee. Since
lawyers tend to work late, it gets a lot of use. "This machine has saved
lives," Sia Sanneh, a senior attorney for E.J.I., told me. Howard Schultz, the
chief executive of Starbucks, said, "Just by coincidence, 2 people sent me
Bryan's book at the same time, and I read it in 2 or 3 sittings. I was so moved
by his story and his selfless acts, and his humanitarianism, that I reached out
and called him cold." They arranged to meet in New York, and then Schultz and
his wife visited E.J.I. in Montgomery. "We all meet interesting people, and
some of the people don't live up to their press," Schultz said. "Bryan is one
of the rare individuals who exceed your expectations." Schultz arranged for
"Just Mercy" to be displayed at Starbucks counters for a month; some 45,000
copies were sold. Schultz also donated the coffee machine.
The world of public-service lawyering can be competitive and petty, even among
ideological allies, but Stevenson's colleagues speak of him with something
close to awe. "Bryan is absolutely in a class of his own," Chris Stone, the
president of George Soros's Open Society Foundations, which has funded E.J.I.,
said. "He is a modest, straightforward, ordinary person, and yet he is magical.
He is a gift to this country and to a cause that would not be the same without
him." Darren Walker, the president of the Ford Foundation, said, "Bryan is one
of the transformational leaders of my generation. He is one of the great
prophetic voices of our era." Barry Scheck, the co-founder of the Innocence
Project, said, "Bryan is without question the most inspirational lawyer of our
times, not just because he's charismatic, and also a brilliant litigator, but
because he connects emotionally with people like no one else." Anthony Romero,
the executive director of the American Civil Liberties Union, said, "Most of us
who do this kind of work are good. He's head and shoulders above us all. He's a
genius. He's our Moses."
For all the ties he has forged around the nation, Stevenson is at this point an
Alabaman. He knows where to find the pressure points in the local system, a
knowledge that he put to good use after the Alabama Historical Association
rejected his petition. He enlisted a small organization devoted to
African-American history in Alabama as an alternative sponsor. In 2013, E.J.I.,
with its new ally, was allowed to put up 3 markers in downtown Montgomery.
During the controversy, Stevenson visited the University of Texas Law School,
in Austin, for a conference on the relationship between the death penalty and
lynching. Jordan Steiker, the professor who convened the meeting, told me, "In
one sense, the death penalty is clearly a substitute for lynching. One of the
main justifications for the use of the death penalty, especially in the South,
was that it served to avoid lynching. The number of people executed rises
tremendously at the end of the lynching era. And there's still incredible
overlap between places that had lynching and places that continue to use the
death penalty." Drawing on the work of such noted legal scholars as David
Garland and Franklin Zimring, Steiker and his sister Carol, a professor at
Harvard Law School, have written a forthcoming book, "Courting Death: The
Supreme Court and Capital Punishment," which explores the links between
lynching and state-sponsored executions. The Steikers write, "The practice of
lynching constituted 'a form of unofficial capital punishment' that in its
heyday was even more common than the official kind."
Lynchings, which took the form of hangings, shootings, beatings, and other acts
of murder, were often public events, urged on by thousands, but by the 1930s
the behavior of the crowds had begun to draw criticism in the North. "The only
reason lynchings stopped in the American South was that the spectacle of the
crowds cheering these murders was becoming problematic," Stevenson told me.
"Local law enforcement was powerless to stop the mob, even if it wanted to. So
people in the North started to say that the federal government needed to send
in federal troops to protect black people from these acts of terror. No one in
power in the South wanted that - so they moved the lynchings indoors, in the
form of executions. They guaranteed swift, sure, certain death after the trial,
rather than before the trial."
In 2007, Sherrilyn Ifill, the president and director-counsel of the N.A.A.C.P.
Legal Defense Fund, published "On the Courthouse Lawn," which focussed on 2
lynchings in Maryland. "What I learned is that an alarming number of lynchings
took place not in secret, in the woods, but in public, on the beautiful lawns
that are still there in all these communities," Ifill told me. "And there is
nothing to commemorate these lynchings on those lawns, which are in the center
of every town in the South." Lynchings were often covered in local newspapers,
and sometimes even previewed in them, and these records were indispensable
resources for the E.J.I. researchers.
The staffers at E.J.I., in addition to their legal duties, attempted to
identify every lynching that took place in twelve states. They found records
for about 4,000 lynchings, roughly 800 more than in previous counts. Stevenson
became convinced that lynching had a historical and a contemporary relevance
that needed to be more visible. At first, he imagined erecting more historical
markers, but he soon expanded his plan. "One factor, to be honest, was that we
started talking about a memorial for 9/11 victims within 5 years," he said.
"It's not as if we haven't waited long enough to begin the process of a
memorial for lynching. So that's when it became clear to me that, in addition
to the markers, we needed to be talking about a space, a bigger, deeper, richer
space. The markers will give you a little snapshot, but we need to tell the
whole story."
On a steamy Saturday morning in May, about 100 volunteers assembled at the
warehouse. Stevenson commands a stage without being especially commanding. He's
of average height, with a shaved head - a concession to encroaching baldness -
and he has the politician's gift for making his set pieces sound as if he were
delivering them for the first time.
"I continue to believe that we're not free in this country, that we're not free
at birth by a history of racial injustice," he told a diverse group of
students, retirees, local activists, and supporters from around the country.
"And there are spaces that are occupied by the legacy of that history that
weigh on us. We talk a lot about freedom. We talk a lot about equality. We talk
a lot about justice. But we're not free. There are shadows that follow us."
His cadence alternates between preachy intensity and lawyerly restraint. As
Henry Louis Gates, Jr., the Harvard professor, put it, "There are 2 different
streams of rhetoric in the African-American tradition, the sacred and the
secular. Martin Luther King didn't sound like Thurgood Marshall. You can't
argue in court like you're preaching in the Abyssinian Baptist Church. But
scholars like Cornel West and Michael Eric Dyson in recent years have drawn
from both traditions. Bryan does, too."
Stevenson told the group, "If you'd come to Montgomery a few years ago, you'd
find a city with more than 50 markers or monuments to the Confederacy but
hardly a word about slavery. And it's not like in the South we don't want to
talk about the past. We love talking about the past." He noted that Alabama
still observes Confederate Memorial Day (the last Monday in April) and
Jefferson Davis's birthday (celebrated on the 1st Monday in June). In lieu of a
separate Martin Luther King, Jr., Day, the state celebrates a joint Martin
Luther King, Jr. - Robert E. Lee holiday. He also pointed out that the 2
largest high schools in Montgomery are Robert E. Lee High and Jefferson Davis
High. "Both overwhelmingly black."
The group had gathered to participate in Stevenson's project to commemorate the
history of lynching. "Lynching was racial terrorism," he said. "Old people of
color come up to me sometimes and say, 'Mr. Stevenson, I get so angry when I
hear someone on TV talking about how they're dealing with domestic terrorism
for the 1st time in our nation's history after 9/11. You need to make them stop
saying that, because that's not true.' People who had endured lynchings and
bombings and threats had a tremendous shape on our lives. We haven't done a
very good job of understanding the legacy of lynching, but the black people
that are in Cleveland and Chicago and Detroit and Los Angeles and Oakland and
Boston and Minneapolis did not go to those communities merely as immigrants
looking for new economic opportunities. They went to those communities as
refugees and exiles from the American South."
After Stevenson's speech, the volunteers headed out in small teams to fill
gallon-size glass jugs with soil from the sites of the 363 lynchings that
E.J.I. had documented in Alabama. Many of the sites are approximate, and the
soil project, which has been going on for about a year, is meant to be symbolic
rather than scientific. Along the back wall of the room where Stevenson was
speaking were about a hundred jugs already filled with soil. The colors of the
soil samples varied, from nearly black, in the Black Belt communities across
the middle of the state (which was named for its rich soil as well as for its
ethnic composition), to the tan, sandy soil from the Gulf Coast, around Mobile.
The names of the victims and the dates of their deaths, which ranged from 1877
to 1950, are marked on the jugs.
The soil-collection project is part of a plan to erect the 1st national
memorial to lynching victims, to be built on 6 acres of vacant land in downtown
Montgomery. The project will cost twenty million dollars, and will include a
museum at E.J.I. headquarters. It will transform the look, and perhaps the
reputation, of Montgomery. A key part of the plan is a dare to the communities
in which the lynchings took place. "We're going to name thousands of people who
were the victims of lynchings," Stevenson told the group before they received
their trowels and jars. "We're going to create a space where you can walk and
spend time and go through that represents these lynchings. But, more than that,
we're going to challenge every county in this country where a lynching took
place to come and claim a memorial piece - and to erect it in their county."
Montgomery offers the project a rich civil-rights history and low-priced real
estate. For the most part, the streets of downtown are quiet, and the sidewalks
are empty. (There is no Starbucks.) Stevenson was able to assemble 6 1/2 acres
of contiguous abandoned lots that were once the site of a failed public-housing
complex, for about 600,000 dollars. It's a 15-minute walk from the warehouse,
and up a small hill above the Greyhound bus station where the Freedom Riders
were assaulted in 1961.
From a distance, the lynching memorial, designed by Michael Murphy and a team
from the MASS Design Group, of Boston, will look like a long, low colonnade.
Once visitors enter the structure and follow the path downhill, they will see
that the columns are hanging in the air, as if from trees. Each column is 6
feet tall. The current plans call for the soil collected by volunteers to be
used in coloring their exteriors. There will be 801 columns, 1 for each county
and state in which a lynching took place. The names of the victims and the
dates of the lynchings will be inscribed on the columns.
The memorial also has a more provocative component. Adjacent to the colonnade
will be another eight hundred and one columns, exact duplicates. Each county in
which a lynching took place will be invited to remove its memorial column and
display it in its own community. The columns that remain in Montgomery will
stand in mute rebuke to the places that refuse to acknowledge their history of
lynching. "For us, it's the kind of activism that has clarity, purpose, and a
goal," Stevenson told me. "Sometimes the goals aren't very clear or very well
articulated, and you don't know whether you're getting closer or not. This will
give us a way of measuring that. We'll know the places that are resisting, and
it should build pressure on those communities, and the people in those
communities, that are either not doing enough or need to do more."
The city of Montgomery has come to embrace Stevenson's plans, in the name of
economic development. Mayor Todd Strange told me last spring, "We certainly
appreciate the fact that it's going to lead to a big influx of people who want
to come and gain some understanding. Those are good, clean tourist dollars."
But he was also aware that, as he put it, "history is a battleground."
Stevenson has been cautious about unveiling the project, which recently
completed the zoning-approval process. Plans for the memorial had been
mentioned only briefly in the Advertiser, the local daily. Strange told me,
"Bryan has wanted it quiet. We still today have not made an announcement
relative to the museum and the memorial park." For the moment, Stevenson has
given the project the generic name of the Memorial for Peace and Justice, which
provides no clue that it's all about lynching.
The reaction of Dick Brewbaker, a Republican state senator who represents a
district in Montgomery, may presage a less warm welcome. Brewbaker, who is a
prominent auto dealer, was not aware of the project when I asked him about it.
"If he wants to do it, he needs to do it with private funds," Brewbaker said.
(Stevenson has used no government funds.) Brewbaker went on, "Why is racially
motivated violence worse than any other kind of violence? I don't give a damn
what the motive of the offender was if an act of violence was committed.
Interjecting even more race talk into Alabama's politics is not productive."
Brewbaker noted that Montgomery has several museums about the civil-rights era,
including one devoted to Rosa Parks, another to the Freedom Riders, and a 3rd
to the movement as a whole (at the Southern Poverty Law Center). "I'd say the
imbalance has been corrected pretty quickly, especially when you consider the
Confederate symbols that have been removed." In 2015, Governor Robert Bentley
ordered the removal of Confederate battle flags from the grounds of the
Capitol. The flags are gone, but the plaques that described them remain.
Stevenson's 1st round of fund-raising for the memorial and the museum has
garnered a 2-million-dollar commitment from the Ford Foundation and a million
dollars from the charitable arm of Google; he has also earned more than a
million from his book, the sale of movie rights, and his relentless
speechmaking. That still leaves a considerable gap for a 29-million-dollar
undertaking, which Stevenson hopes, optimistically, will open in 2017. For the
moment, he bears the financial burden himself. Darren Walker, of the Ford
Foundation, told me, "One of the things I've wanted to do is help Bryan situate
his institution in a way that is durable and resilient and not so reliant on
him as a charismatic leader." To that end, the Foundation has given E.J.I. a
grant to hire a professional development staff.
I wondered how someone who was successfully juggling so many responsibilities
could describe himself as "broken." Stevenson told me about the moment when he
was talking to his client Jimmy Dill, just before Dill was executed, in 2009.
"I've been in that setting before, but there was something different about
this, because the man had this speech impediment," Stevenson said. "He couldn't
get the words out, and he was going to use the last few minutes of his life -
his last struggle was going to be devoted to saying to me, 'Thank you' and 'I
love you for what you're trying to do.' I think that's what got to me in a way
that few things had. And I, for the 1st time in my career, just thought, Is
there an emotional cost, is there some toll connected to being proximate to all
this suffering? I think that's when I realized that my motivation to help
condemned people - it's not like I'm some whole person trying to help the
broken people that I see along the road. I think I am broken by the injustice
that I see."
After Stevenson spoke at the warehouse on that Saturday morning this spring, a
50ish volunteer named Susan Enzweiler, who had recently retired from a job in
historic preservation, received an assignment to visit the site of the lynching
of a man named Ebb Calhoun. He died on April 29, 1907, in the village of
Pittsview, on Alabama's border with Georgia. According to the materials
provided by E.J.I., on the day before the attack Calhoun's son reportedly
walked between a white man and his daughter on the street, brushing against the
woman. The white man, a "prominent merchant," according to a contemporary
report, shoved the son to the ground; the man was already "annoyed by the
boisterousness of a large crowd of negroes" in the town that day. E.J.I. gave
the approximate address for the lynching as 88 Le Conte Street, in what was
described as the central business district of Pittsview.
When Enzweiler and I arrived in Pittsview, we found what appeared to be the
shell of a business district. A convenience store and a 1-room post office
survived, but the structure at what might have been 88 Le Conte was a crumbling
brick building. Enzweiler studied the arrangement of the bricks. When bricks
were more fragile and less standardized than they are today, builders would
alternate "stretchers" (bricks laid lengthwise) with "headers" (bricks with the
short side exposed). There were headers every 6 rows in the building, which
Enzweiler took to mean that it was constructed around the beginning of the
twentieth century. It had probably been standing at the time of the lynching.
As Enzweiler was looking around, a woman drove up to the post office, across
the street. She was a letter carrier. She said that her route covered Pittsview
and the neighboring town of Cottonton. "Pittsview is majority black and
minority white," she said. "Cottonton is the opposite." She said that the
residents on Le Conte where Enzweiler was standing were all white; the
residents farther up the block, on the other side of a traffic light, were all
black. The road of demarcation between the racial enclaves was called Prudence.
Stevenson had asked the volunteers to try to imagine the events that led to the
lynchings. Ebb Calhoun had returned the next day to the site of his son's
confrontation. Several white men, including the merchant who had had the
altercation with the son, harassed Ebb and then accused him of firing a shot at
a visitor from Columbus. A group of whites assembled, surrounded Calhoun, and
then shot him dead. "This was the main drag. They executed him in a public
place," Enzweiler said. "Mr. Calhoun must have known what was going to happen.
He was trying to protect his son, taking the hit that was probably meant for
him. Ebb was a hero." She took out her trowel, bent over to brush away pieces
of crumbled brick, and began to fill her glass jar with soil.
(source: Jeffrey Toobin has been a staff writer at The New Yorker since 1993)
*************
The slow decline of the death penalty
In the New Yorker, Jeffrey Toobin profiles the heroic Bryan Stevenson.
In 1989, a 29-year-old African-American civil-rights lawyer named Bryan
Stevenson moved to Montgomery, Alabama, and founded an organization that became
the Equal Justice Initiative. It guarantees legal representation to every
inmate on the state's death row. Over the decades, it has handled hundreds of
capital cases, and has spared 135 offenders from execution. In recent years,
Stevenson has also argued the appeals of prisoners around the country who were
convicted of various crimes as juveniles and given long sentences or life in
prison . . .
Stevenson and his colleagues have managed to slow, but not stop, the
death-penalty machinery in Alabama - an enormous challenge in view of the
state's conservative and racially polarized politics. Alabama has an elected
judiciary, and candidates compete to be seen as the toughest on crime. It's
also the only death-penalty state in which judges routinely overrule juries
that vote against imposing death sentences. (In their campaigns, judges boast
about the number of death sentences they've imposed.) Alabama's population is
about 27 % African-American. The 19 appellate judges who review death
sentences, including all the justices on the state Supreme Court, are white and
Republican. 41 of the state's 42 elected district attorneys are white, and most
are Republican. The state imposes death sentences at the highest rate in the
nation, but the Equal Justice Initiative has limited the number of executions
to 22 in the past decade, and there has been only one in the past 3 years.
"It's just intensive case-by-case litigation," Stevenson told me. "We've gone
more aggressively than anyone in the country on racial bias against
African-Americans in jury selection. We have extensive litigation on the
lethal-injection protocols. We identify inadmissible evidence. We push hard on
every issue."
In portions of the profile, Stevenson seems pessimistic, citing the recent
spate of police shootings and white hostility to the civil rights movement. The
profile also focuses more on Stevenson's admirable efforts to build a memorial
to American lynchings than on his litigation.
But given Stevenson's lifelong work on the death penalty, it's worth taking the
opportunity to point out just how rare executions are these days. At the
national level, we're seeing a significant slowdown. Certainly, there are still
hot spots where the death penalty is flourishing, and in those areas it still
retains a familiar litany of problems: Those executed aren't the "worst of the
worst." Rather, the death penalty is arbitrarily applied. It's racially
discriminatory, with respect to the race of both the perpetrator and the
victim. And the people executed aren't always the most culpable. Often, it's
used as extra punishment for those who protest their innocence, or as leverage
for a killer to give up accomplices. In the few states that still execute, the
entire process is also getting more secretive and less accountable.
But there's good reason to think that the efforts in those states are capital
punishment's death rattle. In a large and growing part of the country, the
death penalty is becoming a relic of the past. Delaware's Supreme Court just
ruled capital punishment unconstitutional. Nebraska's legislature repealed the
death penalty, even overriding a veto in the process (though it may be
resurrected with a ballot measure this fall). As NPR reported last December:
The death penalty is in decline no matter the measure, a new study released by
the Death Penalty Information Center has found.
The report found that 28 people were executed this year, the lowest since 1991.
The number of death sentences dropped by 33 %.
Only 6 states executed convicts during the year, and Texas, Missouri and
Georgia accounted for 86 % of the executions.
There have been 15 executions so far this year, and just 2 since April. Only 5
states have carried out executions. Georgia and Texas alone account for 12 of
the 15 executions.
According to Gallup polling, while 3 in 5 Americans (61 %) still support the
death penalty, that figure also marks a 40-year low. Pew polling also shows a
40-year low, with support even lower, at 56 %. Among those ages 18 to 29, it's
at 51 %.
Stevenson isn't the sort to take a bow, but the tireless work from groups such
as EJI, the Innocence Project and the Death Penalty Information Center are a
big reason for all of this - both in changing public opinion and in slowing
down the machinery of capital punishment. You could argue that the progress has
been too slow. But there's no question that there has been progress.
(source: Opinion; Radley Balko, Washington Post)
******************
Pinkston attorney argues Ala. death penalty unconstitutional
A Calhoun County judge Monday heard arguments by an attorney that the rights of
his client, charged with 2 counts of capital murder, were being infringed upon.
Attorney Will Broome Jr., representing Walter Craig Pinkston, argued that his
client has the right to a jury throughout the entirety of his trial, which has
not yet begun, and sentencing should only come from those twelve people. In
Alabama, a judge has the final say on sentencing, which Broome said was
unconstitutional.
"The state draws an arbitrary line that is convenient for them," Broome said
after the hearing. "In other states, the jury is involved in every aspect of
the trial. Here they leave after they give their verdict and sentencing
recommendation."
Pinkston, 35, and Monica Marie Shively, 33, allegedly stabbed 89-year-old Alma
Fleming to death in 2013 while they were attempting to commit robbery and
burglary, according to court records. Calhoun County Coroner Pat Brown said in
2013 that he believed Fleming was stabbed to death 2 days before her son, Wayne
Fleming, found her at her home on South Stebbins Street.
If Pinkston is found guilty of capital murder he could be sentenced to either
death or life without parole. The trial itself is not scheduled to begin until
at least December.
Broome called upon recent Supreme Court decisions striking down death penalty
statutes in Delaware and Florida this year for a similar issue. Broome argued
that there are 3 phases that the jury should be a part of - the verdict, the
sentencing recommendation and the actual sentencing.
"They want to cut a line at a convenient point to put the decision in your
hands," Broome said referring to the prosecutors. "The state wants to cut off
his right to a jury trial at that point. Ultimately when the jury renders its
advisory, that is just a recommendation. We're the only state that takes that
and puts it solely in your hands."
Broome continued to argue that allowing the jury to make a sentencing
recommendation, and then allowing the judge to sentence the defendant based on
a pre-sentencing report and the facts of the trial is double-jeopardy.
"He is being tried twice, essentially, and judged twice for the same offense,"
Broome said. "That's double jeopardy."
Calhoun County Chief Assistant District Attorney Lynn Hammond argued that a
jury's recommendation is only that, a recommendation. Speaking in
hypotheticals, Judge Brian Howell asked Hammond why even have the jury make a
recommendation if he can legally override the suggestion.
"It is paramount that the judge has the opportunity to hear what the populace
believes," Hammond said. "It's just as constitutional as the guilt or innocence
phase. I do not agree with the defense in this, I agree with the court of
criminal appeals."
Broome in part agreed with Hammond.
"It is the community who should decide," he said in response. "It should be the
wishes of the community. You could overrule it, you have that capability and
that's why the death penalty is unconstitutional. The jury should decide each
and every part of the trial."
Howell said he'd file a written order on the subject by the end of the week.
(source: The Anniston Star)
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