Oct. 3
TEXAS:
Duane Buck deserves a color-blind sentencing trial
Gerald Kogan, a former assistant state attorney and chief prosecutor in the
Dade County, Fla., State Attorney's Office, served as a justice on the Florida
Supreme Court from 1987 to 1998, including 2 years as chief justice. Tim Cole
served as an elected Texas district attorney from 1993 to 2006. The authors are
co-signers of an amicus brief filed in the Buck case.
As former prosecutors, we recognize that the state's decision to seek a death
sentence involves the utmost ethical responsibility. Capital cases, more than
any other, require meticulous adherence to prosecutorial ethics. Thus, the
prosecutors' ethical code, adopted by the National District Attorneys
Association, as well as the U.S. Constitution, make clear that no death
sentence can be based on a factor as arbitrary as race.
But the pernicious use of race, among other troubling issues, including
astonishingly ineffective defense lawyering, is at the center of the Duane Buck
death-penalty case, which will be argued to the Supreme Court on Wednesday.
Following Buck's 1997 conviction in the murder of his former girlfriend and her
friend, Buck's court-appointed trial counsel relied on an "expert" who
testified during the trial's sentencing phase that, because he is black, Buck
was more likely to commit violent crimes in the future. Setting aside for the
moment that this claim is patently false, it was particularly significant
because in Texas, jurors must find that a defendant will pose a "future danger"
before they can impose a death sentence. The prosecutor, on cross-examination,
asked the expert to repeat his opinion that Buck's race increased the
probability that he would be a danger in the future and, at closing, encouraged
the jury to rely on the expert's testimony in support of a finding of future
dangerousness. After deliberating for 2 days, and requesting the expert
reports, jurors found Buck to be a future danger and he was sentenced to death.
This is an extraordinary case that demands extraordinary relief. One reason is
the uniquely injurious nature of racial discrimination itself. The testimony
connecting Buck's race to his likelihood of dangerousness not only deprived him
of his fundamental right to a fair trial, it also compromised the integrity of
the criminal-justice system overall. An assessment of future dangerousness is
properly based on an individual's personal history, not on innate, immutable
traits.
It is also extraordinary because Texas recognized the unconstitutional nature
of the testimony and promised Buck a new sentencing hearing, but
incomprehensibly refused to honor that promise.
In 2000, Texas's then-attorney general, John Cornyn, became aware of this
particular expert's problematic testimony about race and future dangerousness
when another capital defendant challenged it in a U.S. Supreme Court appeal. On
behalf of the state of Texas, Cornyn admitted that the introduction of such
testimony "violated [the defendant's] constitutional right to be sentenced
without regard to the color of his skin." He agreed to have the defendant's
sentence vacated so that a new sentencing hearing untainted by such racial
discrimination could be held.
Following that concession, Cornyn conducted a thorough investigation of Texas's
death row to determine if any other cases were similarly tainted by this
expert's unconstitutional race-equals-dangerousness testimony. His office
concluded that the sentences of 6 death-row inmates, including Buck, were
poisoned by such evidence. Texas promised new sentencing hearings for all 6
prisoners but, without explanation, reversed course in only Buck's case.
The failure of the prosecutors involved in this case to honor their ethical and
professional obligations has been compounded by the failure of the judiciary to
recognize the urgent need for relief. Incredibly, the U.S. Court of Appeals for
the Fifth Circuit denied Buck's request for permission to appeal the denial of
relief on his resentencing request, declaring that Buck had "not made ... even
a minimal showing that his case is exceptional" as required under the relevant
federal rule.
We would be hard-pressed to think of a more extraordinary case. Prosecutors
play a critical role in maintaining public confidence in the criminal-justice
system. They are entrusted with the responsibility to seek justice and enforce
state and federal law. In Buck's case, that trust was violated by the trial
prosecutor's exploitation of the defense counsel's constitutionally deficient
performance in introducing the race-as-dangerousness testimony and by the Texas
attorney general's failure to keep his promise to ensure that Buck received a
new, fair sentencing hearing.
Our Constitution, and the integrity of our criminal-justice system, require
more from our prosecutors. We call on the Supreme Court to grant relief to
Duane Buck so that he may obtain the new, colorblind sentencing trial that
Texas promised him.
(source: Opinion, Washington Post)
*****************
A US supreme court case that could set the tone for the post-Scalia era ----
The impact of the 8-member court on the law may be minimal at first, but the
'4-4 split' may change the way the justices communicate their decisions
When the justices of the US supreme court take their seats on Tuesday morning
for the first set of oral arguments of their 2016-2017 session, many
court-watchers will have their eyes more on the makeup of the court than the
cases themselves. Since Justice Antonin Scalia's death in February, the 9-seat
court has had only 8 members, while Senate Republicans have refused to consider
Barack Obama's pick, Judge Merrick Garland.
Having only 8 members of the court means that, theoretically, any and every
case could result in a tie between the court's 4 remaining conservative members
and the liberals, even in those cases expected to resolve disparities in lower
courts' rulings.
Renee Cramer, a professor of law, politics and society at Drake University,
cautioned that the effects of the 8-member court on the law - at least at the
beginning of this term - are likely to be minimal. "The political implications
are probably greater than the judicial implications," she said.
"The 4-4 split wasn't changing decisions incredibly" in the wake of Scalia's
death, she explained. "But it was maybe changing the way that those decisions
were communicated."
"They appear to be appealing to a desire not to be seen as overreaching," she
added, issuing rulings "more narrowly tailored to the specific instances". Of
the 19 cases currently scheduled for oral arguments, here is 1 that could have
the broadest implications.
Buck v Davis
Duane Buck shot and killed his ex-girlfriend and her friend in Texas in 1995
and was convicted; the case before the court challenges his death penalty
sentence. During the penalty phase of his trial, Buck's defense attorney -
called one of the worst defense lawyers in capital cases in the country -
brought to the stand an expert witness intended to demonstrate to the jury that
Buck was not a continuing threat to the community, a key standard for imposing
the death penalty. Instead, the defense introduced the testimony of Dr Walter
Quijano, who wrote that, statistically speaking, Buck was more likely to commit
crimes in the future because he is black.
He was sentenced to death, and appealed on the grounds that his counsel had
been ineffective, though not because his lawyer introduced Quijano's testimony.
The state of Texas later admitted before the supreme court that Quijano's
testimony was prejudicial. But the state objected to the challenge of Buck's
death sentence because his own lawyer introduced the evidence, and because
prosecutors do not believe that the circumstances of Buck's sentencing rise to
the level of extraordinary circumstances.
The court may decide the case on either question.
(source: The Guardian)
NEW HAMPSHIRE:
NH Right To (some) Life
To the Editor:
According to the mission statement of New Hampshire Right To Life, "The Mission
of New Hampshire Right to Life is to foster respect for all human life from the
moment of fertilization to natural death."
Yet NHRTL president Jane Cormier was told she could not represent NHRTL in a
panel discussion on the death penalty due to some board members being for the
death penalty.
So they are telling us that if you are for the death penalty then you respect
all human life? I don't think so.
Jane Cormier told me, "Our board discussed this issue at the Friday board of
directors' meeting and it was decided that NHRTL would stand by our mission and
bylaws statement which center on fighting abortion and euthanasia."
Nowhere in their mission statement does it say they respect all human life only
in the case of abortion and euthanasia. I have asked for the resignation of
those on the NHRTL board that are for the death penalty.
JIM PREISENDORFER
Concord
(source: Letter to the Editor, Union Leader)
ARKANSAS:
Death Penalty Opponent to Speak, Answer Questions at U of A
Furonda Brasfield, director of the Arkansas Coalition to Abolish the Death
Penalty, will give a presentation and answer questions about her organization's
mission and initiatives at 6:30 p.m. Thursday, Oct. 6, in Kimpel Hall room 306.
The event is free and the public is welcome.
Brasfield's presentation is part of the University of Arkansas' One Book, One
Community Project and is offered as a lead-up to the public lecture by Bryan
Stevenson, author of Just Mercy: A Story of Justice and Redemption at 6:30 p.m.
Nov. 3 in the Reynolds Auditorium.
The Arkansas Coalition to Abolish the Death Penalty was founded in 1977 and is
a non-partisan, non-sectarian coalition of religious and civic organizations
and concerned citizens working together to end capital punishment in Arkansas.
Its ultimate goal is for the General Assembly of Arkansas to pass and the
governor sign into law a bill striking the death penalty from the criminal
sentencing statutes of the state.
About the University of Arkansas: The University of Arkansas provides an
internationally competitive education for undergraduate and graduate students
in more than 200 academic programs. The university contributes new knowledge,
economic development, basic and applied research, and creative activity while
also providing service to academic and professional disciplines. The Carnegie
Foundation classifies the University of Arkansas among only 2 % of universities
in America that have the highest level of research activity. U.S. News & World
Report ranks the University of Arkansas among its top American public research
universities. Founded in 1871, the University of Arkansas comprises 10 colleges
and schools and maintains a low student-to-faculty ratio that promotes personal
attention and close mentoring.
(source: uark.edu)
NEW MEXICO:
Journal Poll: 65% support bringing back death penalty in NM
As debate rages at the Roundhouse and around New Mexico after recent killings
rocked the state, a new Journal Poll has found that nearly 2/3 of likely state
voters support reinstating the death penalty for certain violent crimes.
65 % of likely voters said they would favor reinstating the death penalty for
individuals convicted of killing children, police officers or corrections
officers, while 28 % of voters said they would oppose doing so. The rest of
those surveyed either had mixed feelings or wouldn't say.
Debate over the controversial punishment has reignited in recent weeks after
the death of 10-year-old Victoria Martens of Albuquerque, who police say was
drugged, raped and killed, and the killings of police officers in Hatch and
Alamogordo. Police officers were also shot and killed last year in Rio Rancho
and Albuquerque.
"These are fresh in the minds of New Mexico voters, so I'm not surprised to see
support as high as it is," said Journal pollster Brian Sanderoff, president of
Research & Polling Inc.
Gov. Susana Martinez announced last month that she would add reinstatement of
the death penalty to the agenda of an ongoing special legislative session,
along with 2 other crime-related proposals.
The 2-term Republican governor, a former prosecutor, said cop killers and child
murderers deserve the ultimate punishment.
"It's time we say enough is enough," Martinez said.
However, opponents of the death penalty have criticized the governor for adding
the issue to the special session mix, with Archbishop of Santa Fe John C.
Wester blasting the proposal as a politically motivated "red herring" aimed at
distracting lawmakers from a precipitous state revenue downturn.
The Journal Poll asked voters whether they would support or oppose reinstating
the death penalty for individuals convicted of killing children, police
officers or correctional officers, essentially the proposal being pushed by
Gov. Martinez.
Registered Republicans were more likely than Democrats to support
reinstatement, but a majority of Democratic voters surveyed - 54 % - also said
they favored the proposal, the Journal Poll found.
Meanwhile, about 2/3 of independent voters surveyed - 68 % - said they would
support bringing back the death penalty, while 29 % of voters in the growing
bloc of independent voters said they oppose the proposal.
Hispanic voters were almost as likely as Anglo voters to support reinstatement
of the death penalty, while voters with graduate degrees were far less likely
to favor the proposed reinstatement of capital punishment than were those with
college degrees, high school diplomas or less formal education.
Repealed in 2009
New Mexico had the death penalty on its books for years, but then-Gov. Bill
Richardson signed legislation in 2009 repealing capital punishment and
replacing it with a maximum sentence of life in prison without the possibility
of parole.
Opponents of the death penalty had argued that capital punishment was not
cost-effective, and Richardson, a Democrat, said at the time he signed the
repeal bill into law that he did not have enough confidence in the criminal
justice system to be the final arbiter of who lived and who died.
However, the repeal applied only to crimes committed after its effective date,
and 2 inmates - Robert Fry and Timothy Allen - remain on death row in New
Mexico.
Before abolishing the death penalty, New Mexico had executed just 1 inmate
since 1960. That happened in 2001, when Terry Clark received a lethal injection
after having been convicted of raping and killing Dena Lynn Gore, a 9-year-old
Artesia girl.
Nationally, there's been a movement away from the death penalty. 20 states,
including New Mexico, currently do not have death penalty laws on their books,
and 4 states - Illinois, Connecticut, Maryland and Nebraska - have abolished
capital punishment in the past 5 years, according to the National Conference of
State Legislatures.
At the ongoing special session at the state Capitol, the proposal to reinstate
New Mexico's death penalty passed its first House committee on a party-line
vote Friday - with Republicans in favor and Democrats opposed - and could be
debated by the full House today.
(source: Albuquerque Journal)
CALIFORNIA:
Proposition 62 Backers: 'It's Time to End California's Death Penalty'
In 2005, Dionne Wilson was desperate for revenge. Her husband, Dan Niemi, a San
Leandro cop, was shot seven times and killed in an ambush while answering a
public disturbance call. The killer was on probation and desperate to avoid
going back to prison for having guns and drugs in his possession.
The Alameda County district attorney asked the jury to return a death sentence
for the killer, Irving Ramirez. And Wilson wanted it, too.
"I begged for it," Wilson remembers. "I told them they had to. They have to
give me this justice for my children and for my family."
Wilson got her wish. Ramirez was sentenced to death. But it didn't have the
effect she hoped for.
"That verdict was supposed to be the thing that made me feel better," Wilson
says. "And I felt nothing. All I felt was betrayed, disappointed, let down. I
was still full of hatred and anger, and it had nowhere to go. It made it worse.
It actually made it worse for me."
Wilson no longer supports capital punishment. In fact, she's become an advocate
for criminal justice reform and supports Proposition 62 to end the death
penalty and make life in prison without the possibility of parole the toughest
penalty for 1st-degree murder in California.
Dionne Wilson's husband Dan Niemi was shot and killed while on duty as a San
Leandro police officer. His killer received the death penalty, but she's now
opposed to capital punishment.
"The whole system is so broken that there really is no repairing it," Wilson
says. "I think what makes the most sense is just to end it. Let's be smart on
crime instead of this tough on crime that has utterly failed."
Wilson is not your typical crime victim advocate. Most not only want to keep
the death penalty, they want to speed up executions with Proposition 66. Most
of California???s 58 district attorneys, including Anne Marie Schubert from
Sacramento, oppose Proposition 62. Schubert says the death penalty should be
reserved for what many call "the worst of the worst," whose heinous crimes
affected hundreds of victims.
"We're talking about well over 200 children, 44 or 45 police officers killed in
the line of duty," says Schubert. "We're talking about women who have been
kidnapped, raped and tortured. We're talking about serial killers, mass
killers."
Schubert says it would be an injustice to their victims if those death
sentences are overturned.
If there's one thing supporters and opponents of capital punishment agree on,
it's that California's death penalty as it is today doesn't work. Since
California reinstated capital punishment in 1978, about 875 death sentences
have been handed down.
Of the 119 deaths among condemned inmates in California, only 13 were the
result of a state execution. The vast majority died of natural causes or
suicide.
The last execution occurred in 2006. That same year federal Judge Jeremy Fogel
put a hold on further executions over concerns about the state's 3-drug
protocol for putting inmates to death. More than a decade later, California has
still not given final approval to a new procedure. Even before that latest
legal delay, the average time between conviction and an execution was about 20
years.
The number of death sentences handed down each year in California has been
declining since peaking at 38 in 1999. Last year 14 death sentences were
returned, and so far this year there have been only 6, including one last month
in Alameda County.
Geography matters a lot, too. Los Angeles, California's largest county, also
has given out the most death sentences - 267 since 1978. But a few smaller
counties, including Riverside, Kern and San Bernardino, are responsible for a
disproportionate number of them.
Death penalty opponents say capital punishment can't be fixed and should be
scrapped. They argue it's too expensive, doesn't deter crime or provide any
relief to crime victims' families. And, they say there's always the chance
legal errors could lead to the execution of an innocent person.
Proposition 62 would replace all existing death sentences with life in prison
without the possibility of parole. The inmates would also have to work while
behind bars, with some of their wages going to pay restitution to their
victims.
The last time a measure to ban capital punishment was on the ballot was 2012,
when voters rejected Proposition 34 by 53 to 47 %. This time around a Field
Poll in mid-September showed Proposition 62 leading but still short of the 50 %
needed to pass.
(source: Scott Shafer, KQED news)
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