July 8 USA: For Libby, Bush Seemed to Alter His Texas Policy Until he commuted the 30-month prison sentence of I. Lewis Libby Jr. on Monday, President Bush had said almost nothing about his philosophy in granting clemency while at the White House. As governor of Texas, though, Mr. Bush discussed and applied a consistent and narrow standard when deciding whether to issue pardons and commutations. And that standard appears to be at odds with his decision in the Libby case. Mr. Bush explained his clemency philosophy in Texas in his 1999 memoir, "A Charge to Keep." "In every case," he wrote, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?" In Mr. Libby's case, Mr. Bush expressed no doubts about his guilt. He said he respected the jury's verdict, and he did not pardon Mr. Libby, leaving him a convicted felon. And Mr. Bush acted before the courts had completed their review of his appeal. "As governor, Bush essentially viewed the clemency power as limited to cases of demonstrable actual innocence," said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates. "The exercise of the commutation power in Libby," Professor Steiker continued, "represents a dramatic shift from his attitude toward clemency in Texas, and it is entirely inconsistent with his longstanding, very limited approach." In the 6 years that George W. Bush was governor of Texas, a state that executes more people than any other, he commuted a single death sentence and allowed 152 executions to go forward. He also pardoned 20 people charged with lesser crimes, said Maria Ramirez, the state's clemency administrator. That was fewer than any Texas governor since the 1940s. As president, Mr. Bush has commuted three sentences in addition to Mr. Libby's and denied more than 4,000 requests, said Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s. He has also issued 113 pardons and denied more than 1,000 requests. "His grant rate is very low compared to other presidents'," she said. In commuting Mr. Libby's sentence, Mr. Bush said he had found it excessive. If Mr. Bush employed a similar calculus in Texas capital cases, he did not say so. Even in cases involving juvenile offenders and mentally retarded people, Mr. Bush allowed executions to proceed, saying that he was satisfied of the inmates' guilt and that they had received a fair hearing. The United States Supreme Court has since barred the execution of juvenile offenders and mentally retarded people as a violation of the Constitution's ban on cruel and unusual punishment. Jeanie Mamo, a White House spokesman, said on Saturday that Mr. Bush "has been very careful and deliberative in the use of his pardon powers." "The president commuted - not a pardon - the sentence of Mr. Libby based on thoughtful and deliberate reasoning and acted within the lawful authority granted to him under the Constitution, which he has used very sparingly," Ms. Mamo said. "As the president has said, he respects the jury's verdict and he felt the punishments that the judge determined were adequate which included a $250,000 fine, 2 years probation and a felony conviction. However, in this case, the president considered the 30-month jail sentence for Mr. Libby to be excessive."As governor, Mr. Bush did not issue formal statements giving reasons for granting or denying clemency. But in his memoir, Mr. Bush wrote that he considered clemency requests carefully. "For every death penalty case," he wrote, "they brief me thoroughly, review the arguments made by the prosecution and the defense, raise any doubts or problems or questions." Mr. Bush made many of his decisions in Texas based on case summaries prepared by his legal counsel, Alberto R. Gonzales, now the attorney general of the United States. The 57 summaries were examined in a 2003 article by Alan Berlow in The Atlantic Monthly. Mr. Berlow found that they were relatively brief, often dwelt on the details of the crime and sometimes omitted information that lawyers for the inmates said was crucial. Mr. Bush apparently rarely reviewed the inmates' actual clemency petitions. In a 1998 interview with The Austin American-Statesman, Mr. Bush said the Texas capital justice system, including its clemency process, was working well. "All I can tell you," he said, "is that for the 4 years I've been governor, I am confident we have not executed an innocent person, and I'm confident that the system has worked to make sure there is full access to the courts." Mr. Bush did commute one death sentence, that of Henry Lee Lucas, who, though convicted of several other murders, had falsely confessed to the crime that sent him to death row. He also pardoned Roy Criner, who was serving a 99-year sentence for rape, after Mr. Criner was cleared by DNA evidence in 2000. Mr. Bush's attitude toward clemency may have been influenced by a pardon early in his governorship. In 1995, he pardoned a man with an eight-year-old conviction on his record for marijuana possession so that he could work as a constable. A few months later, the man was arrested for stealing cocaine from a police station. But most of the public scrutiny of Mr. Bush's attitude toward clemency concerned the capital cases that reached him. There are significant differences, of course, between those cases and the obstruction of justice and perjury charges on which Mr. Libby was convicted. In capital cases, juries decide if the defendant is to live or die, while a federal judge, following federal sentencing guidelines, sentenced Mr. Libby. The respect for a jury's judgment that Mr. Bush expressed in the Libby case may have led him to defer to the death sentences recommended by Texas juries. Mr. Bush's power to grant clemency in Texas was also more limited than the absolute power that presidents have where federal crimes are concerned. As governor, he could issue a pardon or commute a sentence only after the state's Board of Pardons and Paroles issued a recommendation that he do so. But the 18 members of the board were appointed by the governor, and by the end of his governorship Mr. Bush had appointed every member. Mr. Bush also had the power to grant a 30-day reprieve at any time. Austin D. Sarat, a professor of jurisprudence and political science at Amherst College and author of "Mercy on Trial," a study of executive clemency, said it was hard to reconcile Mr. Bush's actions as governor with the reasons he cited in the Libby matter. "The grounds he offered for commuting Libby's sentence were equity - that the sentence was out of line with other sentences - or compassion," Professor Sarat said. "Those 2 grounds seem so out of character with anything Bush had ever said or done in the area of clemency that it's as if he has become a different person." In addition to possible innocence, as governor Mr. Bush said he was focused on the adequacy of the legal proceedings. Here, too, however, he took a relatively narrow view. In 2000, Mr. Bush spoke to reporters about the execution of Gary Graham, whose court-appointed lawyer performed poorly at trial. The prosecution's case relied mostly on the testimony of a single witness who said she saw Mr. Graham from 30 to 40 feet away through her car windshield. There was no physical evidence linking Mr. Graham, who was 17 at the time, to the killing. "This is a responsibility I take very seriously," Mr. Bush said in a grave tone, according to news reports, "because the final determination of innocence or guilt is among the most profound and serious decisions a person can make." 5 of the 18 members of the state parole board voted for clemency for Mr. Graham. A former member of the board, Paddy Lann Burwell, said in an interview on Friday that the board took pains to insulate Mr. Bush from the decision. "We took a straw vote," he said, "and I was told that if the vote looks really close it will look bad." Mr. Burwell, who was appointed to the board by Mr. Bush, voted for clemency. "He didn't commit the crime we executed him for," Mr. Burwell said of Mr. Graham. As for Mr. Bush, "I thought he was harder on crime than he needed to be," Mr. Burwell said. In his memoir, Mr. Bush wrote about agonizing over the case of Karla Faye Tucker, who in 1998 became the 1st woman executed in Texas since the Civil War. Ms. Tucker, who was convicted in the ax murders of 2 people during a robbery in 1983, had become a born-again Christian while in prison, and her case drew support from across the political spectrum. Mr. Bush described feeling "like a huge piece of concrete was crushing me" as he waited with aides for Ms. Tucker's execution. It was, he said, "the longest 20 minutes of my tenure as governor." In June, before the Libby commutation, The Austin American-Statesman reviewed Mr. Bush's record on clemency as president and governor in a front-page article. The headline said, "Bush history gives Libby little hope for a pardon." (source: New York Times) NEW YORK: In the summer of 1977, Son of Sam had N.Y., nation on edge In the summer of 1977, the nation was captivated and horrified by a New York City serial killer who called himself Son of Sam in taunting letters to police and the New York Daily News. "Sam loves to drink blood," the killer wrote. "I feel like an outsider. I am on a different wavelength than everybody else - programmed to kill." The .44-caliber killer, known by his weapon of choice, had eluded capture for almost a year. As the 1st anniversary of the start of Sam's killing spree loomed on July 29, an all-out police manhunt was under way. Hundreds of officers blanketed neighborhoods in the Bronx and Queens. Volunteers manned bridges and main arteries. New Yorkers stayed close to home. Officers were ordered to shoo couples away from secluded spots. On July 31, Robert Violante and Stacy Moskowitz, both 20, were in a parked car facing the water in Brooklyn. Sam, trained in guerrilla warfare in Vietnam, crept up to the car and pointed his gun. Ms. Moskowitz would die within hours, and Mr. Violante would lose an eye. But it was the beginning of the end. A woman walking her dog told police she thought she saw the killer - and said he appeared to have parked next to a fire hydrant. His car may have been ticketed. Investigators now had the break they so desperately needed. The parking ticket pointed to postal worker David Berkowitz, and on Aug. 10, officers made their move. Inside Mr. Berkowitz's car, they found the .44-caliber weapon and a fully loaded submachine gun, along with another letter. As police surrounded Mr. Berkowitz's apartment, he suddenly appeared around 10:30 p.m. "Well, you got me," he said. And what America saw was a paunchy, moon-faced, nerdy-looking man of 24 who had methodically shot 13 people in a reign of terror. Mr. Berkowitz blamed it all on demons. He pleaded guilty to killing 6 and wounding 7. But he managed to avoid the death penalty because there was no capital punishment law in effect at the time. He remains in the upstate Sullivan Correctional Facility, where he's described as a model prisoner. And why did he take the name "Son of Sam"? His orders to kill, he explained, came from neighbor Sam Carr's Labrador retriever. Near his mattress, Mr. Berkowitz had scrawled: "Sam Carr - My Master." Killing Spree: July 29, 1976: Donna Lauria, 18, was killed and her friend, Jody Valenti, 30, was wounded in the Bronx. These would be the 1st shootings credited to the Son of Sam. March 8, 1977: Virginia Voskerichian, 19, was shot in Queens. Police for the 1st time publicly linked 5 shootings to the same gun. April 17, 1977: The killer left a taunting note next to the bloody bodies of Valentina Suriani, 18, and Alexander Esau, 20, in the Bronx. "I'll be back! I'll be back!" the letter warned police. June 26, 1977: Brunette Judy Placido and boyfriend Sal Lupo were wounded outside a Queens disco. The shooting churned up fear that spread through the city like wildfire. July 31, 1977: On their 1st date, Stacy Moskowitz and Robert Violante, both 20, were shot near a Brooklyn playground. She died; he lost an eye. Nearby, 2 cops ticketed a parked car owned by postal worker David Berkowitz. Aug. 10, 1977: Police nabbed Mr. Berkowitz outside his Yonkers apartment building. He was carrying a manila envelope that contained a revolver. Inside his car were the .44-caliber weapon and a fully loaded submachine gun. (sources: Dallas Morning News/ New York Daily News) FLORIDA: Region's group of inmates on death row may grow to 20 When a jury unanimously recommended recently that Alwyn Tumblin should be put to death for the murder of Fort Pierce auto shop owner Jimmy Johns, the wheels were set in motion for him to join a small, but infamous group of residents from the Treasure Coast and Okeechobee County. Tumblin will be sentenced later this summer by Circuit Judge James McCann, and the judge must give the jury's decision "great weight" when he hands down the punishment. If Tumblin receives death, he would be the 3rd person in a year on the Treasure Coast to head to death row: Eugene McWatters was sentenced to die in December for the murder of 3 women and Steven Hayward received the same fate in June for his killing of a Tribune news carrier. Although it might appear being sentenced to death is the end of the line, the judge's sentence is really just the start of a process that can last decades and actually might never end with execution. Some cases have lingered on Florida's death row for decades, but recent changes could mean less delay from sentencing to execution. More recent death penalty cases have been moving faster after the state and federal government streamlined the process and imposed stricter time limits on when inmates could file claims, according to Assistant State Attorney Ryan Butler, head of the local legal affairs division. Cases that have occurred since 2000 fall under these new time limits, and those cases have been heard before the Florida Supreme Court faster and also had post-conviction motions, in which inmates typically make complaints about the quality of their attorneys, move faster, too. "Whether that will translate to a quicker execution, we'll see in 5 or 10 years," Butler said. "Certainly their appeals are being exhausted more quickly." The process still frustrates prosecutors who see inmates sit for years and years on death row waiting for an execution that gets pushed further and further into the future. "It's just become a game for the defense bar to delay and stall for as long as possible," said Chief Assistant State Attorney Tom Bakkedahl. "Our position is that we wish to litigate these issues rapidly and expeditiously because it just delays justice." But Chief Assistant Public Defender Mark Harllee, who has handled a number of local capital cases, said the system does move faster than it has in the past and delay is not necessarily a bad thing. "I feel like you've got to strike a balance between the interests of the victim's family and the due process rights of the convicted killer and you don't want to do it so quickly that you miss something just for the sake of going quickly through the process," Harllee said. "There's been quite a few cases that have made their way well into the process that have been reversed for one reason or another." THE APPEALS PROCESS Once a defendant is sentenced to death, the case goes on automatic appeal to the Florida Supreme Court. Recent cases from the Treasure Coast have taken about two years before the justices have heard oral arguments, and the opinions typically are not released until months later. The justices look for any errors that occurred during the trial, such as a judge making a bad ruling on a motion or evidence being wrongly admitted. A new trial potentially could be ordered. The process then moves into post-conviction challenges. This is when the inmate addresses the performance of his attorneys: decisions on what witnesses they called or didn't call, how they prepared for the case and motions or objections they made. The post-conviction challenge is heard before a circuit judge, sometimes the same judge that presided over the trial. This process can be like a "mini-trial" with witnesses, but no jury, and can take a week or more. If the judge finds no problems with how the lawyers performed, the case goes back to the Florida Supreme Court for review. If the Florida Supreme Court again finds no reason to overturn the conviction and sentence, the inmate typically appeals to the federal system, first to a district court, then an appeals court and finally to the U.S. Supreme Court. This must be done within one year of the end of the inmate's state appeals. Appeals beyond this point require unusual circumstances, such as a change in the law or newly discovered evidence. At that point, an inmate again can work a new claim through the state and federal systems. Once all appeals are exhausted, the governor signs a death warrant. This typically prompts another wave of last-minute motions at state and federal levels, but these motions usually are expedited. GETTING OFF DEATH ROW Having a death sentence thrown out in the appeals process does happen. Here are two recent cases when it occurred: Rodney Lowe, 37, was sentenced to death after being found guilty in 1991 of the murder of a Palm Bay convenience store clerk. A circuit judge set aside his death sentence and granted a new penalty phase hearing after new evidence emerged he did not act alone in the incident and another person confessed to the shooting. Daniel Perez, 29, was sentenced to death for the 2001 murder of a Port St. Lucie woman who was bludgeoned and stabbed 94 times during a burglary at her home. The death sentence was overturned by the Florida Supreme Court, and Perez agreed to a deal with prosecutors that put him in prison for life rather than going through a new penalty phase of the trial. HOW CLOSE ARE SOME LOCAL KILLERS TO EXECUTION? All of the state and federal appeals are exhausted for Jim Chandler, 52, who bludgeoned an elderly Sebastian couple to death in July 1980. He now is pursuing claims about the method of execution being cruel and unusual related to problems that occurred in a December execution and is the closest to being executed of anyone from the Treasure Coast, according to the State Attorney's Office. Billy Kearse, 34, who shot Fort Pierce police Sgt. Danny Parrish 13 times in 1991, currently is appealing the quality of his legal assistance before the Florida Supreme Court, and he has joined a petition filed by numerous death row inmates against the current method of lethal injection. The appeal of Alphonso Cave, 48, who along with co-defendants J.B. Parker and James Earl Bush kidnapped and killed Julia Frances Slater in 1982, is currently in the federal system. J.B. Parker, 45, has a hearing set for October to determine whether he had adequate legal help during his trial and to determine if he is too mentally incompetent to be executed. Bush was executed in 1996. ABOUT EXECUTIONS IN FLORIDA: Prior to 1923, executions were carried out by individual counties, typically by hanging. In 1923, the electric chair was designated the official state means of execution and in 2000, lethal injection was added as an alternative, with inmates given the right to choose which method they wanted. 3 drugs are currently used in Florida's lethal injections: sodium pentothal, an anesthetic; pancuronium bromide, a nerve blocker and muscle paralyzer; and potassium chloride, a drug to stop the heart. The executioner is a private citizen who is paid $150 per execution. The identity is kept anonymous by state law. A TEMPORARY HALT TO EXECUTIONS: Angel Diaz, a convicted murderer asked "What's happening?" twice during his Dec. 13 execution, which took 34 minutes, twice as long as is typically normal. It was later learned the IV needles for the lethal injection had pushed completely through his veins, with the poison collecting in the muscles of his arms and slowing the process. Former Gov. Jeb Bush called for a moratorium on the state's death penalty and asked for a commission to study lethal injection Florida was one of seven states that put the penalty on hold while studying lethal injection. Gov. Charlie Crist announced in May he would begin signing death warrants again after the commission came up with 37 suggestions to improve executions in the state. Among the changes were more training for execution teams, better lighting in the death chamber and improving the communications systems. Critics say the process is still too secret and the execution teams lack proper medical training doctors and other medical professionals are barred by ethics rules from participating in the procedures. There also have been arguments raised that the 3 chemicals used causing excruciating pain that likely violates constitutional bans on cruel and unusual punishment. WHAT'S LIFE LIKE ON DEATH ROW? Death row cells are 6-by-9-by-9.5 feet high; inmates are moved to different cells once a death warrant is signed. Men are held at Florida State Prison in Starke or at Union Correctional Institution in Raiford; women are held at Lowell Correctional Institution Annex in Lowell Inmates get three meals a day, served at 5 a.m., 10:30 a.m. and 4 p.m. Last meals must be purchased locally and cost no more than $40 Inmates are allowed to shower every other day They are kept in their cells except for medical reasons, exercise and visitation Inmates are allowed to receive mail and can have cigarettes, snacks, radio and a 13" television in their cells. They are not allowed cable TV or air conditioning. They do not have common rooms. They can watch church services on TV. All death row inmates wear special orange T-shirts, but they wear the same blue pants worn by regular inmates. (source: TC Palm; Material for boxes comes from the State Attorney's Office, the Florida Department of Corrections and the Associated Press) **************** Activist: Grand jury process in cop killing flawed Cops can do no wrong. Rarely does a grand jury - or any law enforcement agency investigating possible criminal police behavior - find fault with an officer in Lee County. Howard L. Simon, executive director of the American Civil Liberties Union of Florida, says indictments against cops disappear almost like magic. "The magic words are: 'I have reasonable fear for my safety,'" says Simon, state ACLU director for 10 years. Poof! Goodbye indictment. "And if he says those magic words, it looks like there's a pass on this thing," Simon says. The latest pass went to Fort Myers Officer Joseph Martinez. Martinez shot and killed Ernest L. Weston, a mentally disturbed Fort Myers man, at C Street and Delaware Avenue on Feb. 2 after he, Sgt. Fred Dunaway and Officer Glenn Eppler responded to a shooting. Witnesses set the scene for disaster by incorrectly telling the officers Weston, 41, had a gun. The cops said Weston ignored their commands and continually went to his waistband, making them believe he had a gun. None was found. A grand jury decided last month Martinez, a 5-year veteran, acted within the law when he killed Weston. "It is crucial to consider all of the evidence in any case before forming an opinion, thereby refusing to accept the words of a few, whom in this case, were not present that evening," says Cecil Pendergrass, president of the local Florida Police Benevolent Association and a Fort Myers police corporal, about critics of police officers. Simon disagreed. "The job of the police officers is to take Weston into custody, not to execute him," Simon says. "A situation that ends with his murder is not a successful outcome. It was bad policing, malignant policing." Execute is a strong word, but it is not an exaggeration. Martinez shot Weston 7 1/ 4 inches below the base of his neck. A foot higher, it resembles an execution-style killing. "When you're 1 to 2 feet away from somebody who is lying face down - who already has been shot twice - how difficult would it have been to cuff him and bring him into custody?" Simon asks. Martinez shot Weston in the stomach and abdomen from 7 to 10 feet away before burying a fatal slug in his back, according to Dr. Robert Pfalzgraf, deputy chief medical examiner. Pfalzgraf says grand jurors did not ask him where Martinez was standing for the last shot. That revelation brought back Simon to Fort Myers on Friday, where he and local advocates continue to push for a civilian police review board. "I don't blame the grand jury," Simon says. "They are ordinary citizens. They may not be legally trained. I think the focus goes to the state attorney's office." Simon wonders if the state brought forward all evidence so the grand jury could make an informed decision. Samantha Syoen, a spokeswoman for State Attorney Steve Russell, says the grand jury - whose proceedings are secret - received a fair and accurate presentation of evidence. But Simon says that if grand jurors didn't ask the medical examiner about the shooter's proximity to the victim, and the state did not present same evidence, the process is defective. "I think the grand jury deserved to know that information," Simon says. The Weston case was a hot potato for the state from the get-go. That's why Russell, who calls a grand jury "the conscience of the community," tossed it to grand jurors. By doing so, he took his office off the hook for a decision. Simon says the unnecessary last bullet could have affected the grand jury's decision. "A police officer might have been indicted, and then the state attorney's office would have been charged with the responsibility of prosecuting that police officer," Simon says. "It raises very, very troubling questions about why crucial information would not have been available." Again, because proceedings are shrouded in secrecy, we don't know what evidence was presented to the grand jury. Yet we know the medical examiner wasn't asked a pertinent question. It's no secret a skillful prosecutor can lead a grand jury like a team of horses to a preferred decision for the state. "Does (Russell) want the job of prosecuting police officers if they were indicted - and what that means in this community?" Simon asks. "And, frankly, what that means is bullying by police unions and their likely retaliation against him the next time he's up for re-election." Simon says he doesn't know if the shooter-to-victim evidence would have made a difference to grand jurors, but he questions how a community can have confidence in fairness of the investigation. "A guy is essentially shot and killed in the back - executed - by a nervous officer," he says. "Then a grand jury gives him a pass on the killing because he claimed reasonable belief of fear for his safety. "If there is an incident that calls for an investigation independent of the criminal justice system and independent of the police department, this is it." Cops can do wrong. (source: Column, Sam Cook, News-Press)
[Deathpenalty] death penalty news----USA, N.Y., FLA.
Rick Halperin Sun, 8 Jul 2007 16:48:01 -0500 (Central Daylight Time)
