June 28 TEXAS: Convict's federal case alleges racial bias in jury questioning The defense attorney for a Texarkana, Texas, man on Texas' death row argued Monday in federal court that there was racial disparity in the jury selection for his client's trial. A jury found Julius Jerome Murphy, 24, guilty of the Sept. 19, 1997, robbery and murder of Jason Erie, 26, of Texarkana and sentenced him to death by lethal injection. Murphy has since tried to get the conviction and death sentence overturned but has been unsuccessful twice through the Texas Court of Criminal Appeals. Murphy's defense attorney, Kevin Dunn, now contends the jury selection for the August 1998 trial singled out black potential jurors with criminal records but did not question a white potential juror with a criminal offense from 1974. Dunn asked Assistant Bowie County District Attorney Al Smith if he asked minorities different questions from white potential jurors in the jury selection procedure. Smith said it is customary to ask questions of potential jurors based on the answers on their questionnaire and he does not work with a script when interviewing them. Smith denied asking different questions depending on the person's race. Dunn contends Smith asked one black potential juror about her criminal background, but did not ask a white potential juror about a finding on her background check that was unclear. Smith replied that the black woman was evasive in answering questions concerning arrests on shoplifting, forgery and theft. He also said the white woman, who was eventually put on the list as a potential juror, had just one speeding ticket and the 1974 crime that was most likely not a felony. He said his office tried unsuccessfully to find out the severity of the crime, which was listed only as "ASC," but did not find an answer at that time. He added that he recently heard speculation that the crime could be that of hindering a secured creditor. A conviction of hindering a creditor would occur if a person received a loan for a car and then sold the car before paying off the loan, or if a company in the process of bankruptcy sold inventory and kept the money to keep the company afloat instead of turning it over to the bank. Smith said a crime of this nature, especially happening more than 20 years ago, is far less severe than a felony. Anyone who has been convicted of a felony cannot serve on a jury. He also added that the white juror was far down on the list of potential jurors and could have served on the jury only if a number of jurors could not serve. Dunn also wondered aloud why only six of the approximately 100 people called for jury selection were black and why five of those were turned away by the state. The state approved one black juror, who was later sent home by the defense. Craig Henry, Murphy's trial and appeal attorney, also took the stand. Henry said he noticed the state targeted blacks with questions they knew would be misinterpreted. Henry said the state started out questioning minority potential jurors about reasonable doubt, then questioned whether or not the potential jurors had been convicted of a criminal offense. Henry said the state began most of the interviews with white potential jurors with the explanation of capital murder, then the special issues of the trial and the state's slant on those issues. U.S. Magistrate Judge Caroline Craven will have a report on the hearing ready within 30 days. Erie's car had broken down near his parents' Summerhill Road home in the early morning hours, when Murphy and Christopher Solomon (source: Texarkana Gazette, June 22) CALIFORNIA: Prosecutors in Peterson Trial Faltering Courtroom observers at the Scott Peterson murder trial say the defense is winning points with the jury -- weeks before it even gets a chance to put on its own case. Defense attorney Mark Geragos has used prosecution witnesses to bolster his argument that authorities conducted a shoddy investigation before charging Peterson with killing his pregnant wife. Geragos was scheduled to resume his cross-examination Monday of Detective Allen Brocchini, the 1st investigator assigned to the report that Laci Peterson had vanished. Last week, Geragos got Brocchini to admit to several investigative lapses. "It's still a horse race. It's just not a close one right now," said former Alameda County prosecutor Michael Cardoza, now a practicing criminal defense lawyer. Peterson, 31, is accused of murdering his pregnant wife on or around Dec. 24, 2002, then sinking her body in San Francisco Bay. Defense lawyers say he was fishing on the bay when Laci Peterson disappeared, and that someone else must have abducted her near their Modesto home, then framed Peterson after hearing his well-publicized alibi. Over two days of questioning last week, Geragos cornered Brocchini on several details of the investigation, including: -- That police didn't fully exhaust the lead that a witness reported seeing a pregnant woman walking a golden retriever, the same kind of dog the Petersons had, on Dec. 24. Brocchini said the witness couldn't positively identify the pregnant woman as Laci Peterson. -- That Brocchini's report didn't include a police interview with a woman who saw Laci Peterson at the warehouse where her husband stored his small boat. Prosecutors have insisted that Peterson hid the boat as part of his plan. -- That Brocchini didn't know of two witnesses who reported seeing Laci Peterson walk the couple's dog the day before she vanished. Prosecutors have questioned Peterson's story by asserting his wife stopped exercising weeks prior because of pregnancy-related dizziness. Geragos also got Brocchini to suggest innocent explanations for several pieces of evidence that other Modesto policemen concluded could be part of Peterson's attempts to clean up a murder scene at his home, such as a pile of dirty towels on a washing machine. Cardoza, who has watched most of the trial firsthand, said it appears authorities rushed to arrest Peterson last year before they had built more than a circumstantial case. "Unless there's really some smoking gun somewhere, they're going to be awfully sorry they filed this case," Cardoza said. Even some attorneys who believe prosecutors have enough evidence to convict Peterson find fault with their execution. "The pieces of it are all there. The trouble is with the prosecution's presentation," said Dean Johnson, a former San Mateo County prosecutor and now a criminal defense attorney. (source: Associated Press) ********************** Peterson's prosecutors watch trial go downhill -- Despite bad week, it's too early to panic, experts say Prosecutors have been thrown off kilter by their own witnesses. A juror who was excused blasted their case. Sure, it's been a rough week for prosecutors in the Scott Peterson double- murder trial in Redwood City, but that's no reason to panic, say legal experts. It's still early in a case that's expected to last months. "I'm sure the prosecutor has realized that he hasn't come close to proving his case," said former San Francisco prosecutor Bill Fazio. "But he should start getting his act together." Things started to go downhill for Stanislaus County Deputy District Attorney Rick Distaso and his team on Monday with testimony from Laci Peterson's prenatal yoga instructor. Prosecutors intended to use her to knock down Peterson's story that his 8-months-pregnant wife, Laci, planned to take the family dog for a walk the day she was reported missing. The instructor, Debra Wolski, told jurors that Laci Peterson was so weak and her feet so swollen in the days before she disappeared that she needed help walking from the class to her car. Wolski said she had told that to police and prosecutors. The trouble is, as the jury learned the next day, she hadn't, a point which called Wolski's credibility into question. Things got worse when Justin Falconer, juror No. 5, was dismissed Wednesday for reasons that are still unclear, then walked out of the courthouse and into a crowd of media. In a blistering critique, he said the prosecutor's case was confusing, dull and unconvincing. Things went from bad to worse on Thursday when Modesto Police Detective Al Brocchini admitted under cross-examination that he omitted information from his investigatory report that could help exonerate Peterson, who is on trial for the 2002 murder of his wife and their unborn son. There was not much prosecutors could have done to muffle Falconer, but they clearly stumbled when Brocchini and Wolski offered their unexpected testimony under cross-examination, experts agreed. "Lawyers certainly should never be surprised by their own witnesses," San Francisco criminal defense lawyer Stuart Hanlon said. "If you are, you're not doing a very good job, because your job is to know everything that's going to happen in court before it happens." There may have been setbacks, but don't expect prosecutors to throw in the towel. They'll have a chance to recover Monday when they question the detective again. Besides, court observers say, after four weeks of testimony, it's still relatively early in a case that's expected to stretch over 5 months. At this point, they say, prosecutors are still setting up the foundation of their case, presenting the individual pieces of evidence that they hope to bring together at the end. "Quite frequently, prosecutors will save the more telling evidence until the end of the case, because that's what the jurors will remember," prominent Danville defense lawyer Bill Gagen said. Perhaps more troublesome for prosecutors than problematic witnesses and the slow start is what observers say is a case that is being delivered in an often plodding, tedious and occasionally hard-to-follow way. Veteran lawyers speculate that Distaso and his crew of attorneys may have fallen into the trap in a prominent trial of over-trying their case. It's called the "dragnet approach," San Francisco Public Defender Jeff Adachi said. "You bring in any facts that may intrigue the jury." However, "you risk not having the jury focus on what's important in your case," he said. Dean Johnson, a criminal defense lawyer and former San Mateo County prosecutor who has been following the trial, said that prosecutors are both "over-trying and under-trying the case." "They are putting in a lot of evidence that apparently they have no need for whatsoever," he said. "They're under-trying it in that they seem underprepared." Hanlon said the key for the prosecution is to be prepared. He estimates that for every hour in court that he spends presenting his cases, 10 hours are spent in preparation. "If these guys aren't prepared," he said, "I don't know what else they've been doing for the past year." (source: San Francisco Chronicle, June 27) NEW YORK: COURT RULING OFFERS OPPORTUNITY ---- Overhaul state death-penalty law; Decision throwing out current statute opens the way to broad revision of capital- punishment system Last week's state Court of Appeals decision overturning the death sentence of Stephen LaValle is welcome news. It spares his life, invalidates the death sentences of New York's other 3 death-row inmates, and effectively imposes a court-ordered moratorium on New York's death-penalty law. New York's highest court held unconstitutional the "deadlock" provision of the state's death-penalty law. Under this provision, a jury was informed that if it could not agree on either of 2 sentencing choices - capital punishment or life without parole - the judge would impose a 3rd, more lenient, choice: life with the possibility of parole. The court ruled that this instruction could coerce jurors into voting for a death sentence they did not favor, to avoid the possibility of a killer getting paroled. In so ruling, the court enforced the state constitution's clear demand for reliable, non-arbitrary sentencing in cases where a human life is at stake. Significantly, this ruling provides the opportunity to re-examine the 1995 law in light of the knowledge gained over the past decade that New York's death-penalty law is seriously flawed. The governor and the legislature should maintain the moratorium on executions created by the ruling and establish a blue-ribbon commission to undertake a thorough, nonpartisan study of the death-penalty statute to answer these and other vital questions: Is the death penalty being fairly applied in New York? How great is the possibility of executing innocent persons? Does the law deter homicide? Is the law necessary to safeguard the public? Is the death penalty an effective use of financial and judicial resources? Reasonable people on both sides of the death-penalty debate - and now New York's highest court - agree that the current death-penalty law in this state is defective and unjust. The law is not being applied fairly and evenly. In New York, district attorneys are more than twice as likely to seek a death sentence when the victim is white. In a vast state with 62 counties, 3 of the 8 persons sentenced to death since 1995, including LaValle, have come from Suffolk County. There is also the real possibility of executing innocent persons. Two years ago, 3 Long Island men were set free after DNA tests showed they had been wrongly convicted of rape and murder. What's more, New York's death-penalty statute lacks many of the safeguards recommended in some recent major studies on capital punishment, most notably the findings of the Ryan Commission, which spent two years examining Illinois' death penalty to find out why so many innocent people had been sentenced to death in that state. Officers, for example, should be required by law to videotape the questioning of suspects in murder cases when in police custody. The death penalty should not be imposed in any case relying only on uncorroborated testimony. Capital punishment is far more costly than a system that imprisons for life. It has been estimated that the cost of the death penalty would reach approximately $250 million before an execution takes place. When a sentence of life or death depends on the defendant's race, economic resources or county of residence; the whim of the prosecutor or political pressures; or other factors unrelated to the severity of the crime or the defendant's character, then what we have is not justice but a hollow legal process that threatens the elemental fairness on which justice depends. Now is not the time for the legislature to rush in with an expanded or broader death- penalty law, as some have suggested in view of the court ruling. Rather, we should take the time to carefully scrutinize all existing flaws. This should include studying how to improve services to the victims of violent crime, whose needs for support continue long after the judicial proceedings end but are too often sorely neglected. People of goodwill may disagree about the ultimate morality of capital punishment, but a moratorium represents common ground for people on both sides of the issue who care about justice and who want their tax dollars invested wisely. While we continue to believe the death penalty is not an appropriate or effective answer to the problem of violent crime, for the sake of justice we support a continued moratorium on executions and a thorough analysis of capital punishment and its application in New York. (source: Opinion, David Kaczynski, who is executive director and Thomas Boland, the assistant director of New Yorkers Against the Death Penalty, Newsday) ARIZONA: Our opinion: Court ends its indecision on death penalty The U.S. Supreme Court made the correct ruling in an Arizona death penalty case last week, ending decades of court waffling on the issue. In a ruling issued Thursday, the court let stand the death sentence imposed on Warren W. Summerlin for the 1981 rape and ax murder of a woman in Tempe. It is astounding that 23 years after the crime was committed, Summerlin's case still is being litigated. But the Supreme Court has had a difficult time deciding who should impose the death penalty - and has reversed its ground several times. Until 1972, all U.S. death sentences were imposed by juries. But that year, the Supreme Court suggested that judges, with experience and knowledge, should have that responsibility instead of leaving it to the whim of randomly constituted juries. So many states, including Arizona, gave the sentencing authority to judges. In 1990, the Supreme Court heard an Arizona case that challenged a judge's right to impose a death sentence. The court rejected that appeal, ruling that sentencing by a judge was legal. Another case in 2000 supported that ruling. In June 2002, the court again reversed its position, ruling that juries must impose death penalties. Left unaddressed was a crucial issue: Who was affected by the ruling? Certainly defendants tried after that date had to be sentenced by juries. But was it to be applied retroactively? The U.S. 9th Circuit Court of Appeals ruled that the ruling was retroactive and voided Summerlin's judge-imposed death sentence. The U.S. Supreme Court last week properly reversed that decision, ruling that if murderers sentenced by judges have exhausted their appeals, the sentences will stand. If the court believes it is most fair to have jurors decide whether death is warranted, we won't argue with that. But murderers legally convicted under procedures that the court upheld at that time should not now have their sentences overturned. As a practical matter, it would have been impossible to have a jury review many old cases. Memories have faded, witnesses have died and evidence is old. Those affected have had their sentences upheld numerous times on appeals. This is not a case of new evidence or emerging technology that could clear an innocent person. It is a procedural matter. Laws have an effective date and should not be applicable to incidents that happened before that date. There must be closure at some point - especially for the families of murder victims, who should not have to endure unending rounds of appeals. The Supreme Court now has brought that closure. (source: Opinion, Tucson Citizen) PENNSYLVANIA: Area lawyers: Death penalty ruling to have little impact -- Pa. Supreme Court sets minimum qualifications for murder cases Experience means everything when it comes to capital murder trials, according to the Pennsylvania Supreme Court. The court ruled earlier this month that defense attorneys will be required to meet certain qualifications before being appointed to capital murder trials. Among them, attorneys must have conducted at least 8 felony trials that conclude with a jury verdict and participate in 6 hours of capital trial-related training per year. The changes will take effect within 2 years, but individual counties may impose them earlier, if they choose. Attorney Samuel Stretton, who said he has represented as many as 40 murder defendants, believes the regulations are a good idea. "Part of me feels bad that we have to have a rule that knocks out a lot of people," Stretton said. "But the other side, I've seen so many trials that were butchered." Stretton worked with the Philadelphia Bar Association in the 1990s to establish standards there. The statewide rules will be more strict. Chester County's President Judge Howard F. Riley Jr. said it will be up to the county board of judges whether or not the new rules are enacted before May 2006. Whenever it does take affect here, the judge predicted it would not have a significant impact on the county's ability to find qualified representation for murder defendants. "We've been very fortunate in Chester County," Riley said, "with the caliber of attorneys doing capital murder cases." He called the public defenders office "a credit to the county." "We're blessed with attorneys in the public defender's office that they couldn't afford to hire on the outside," Riley said. Graham Andes, the county's first assistant public defender also agrees with imposing the standards and he said the public defender's office already has several attorneys who would meet the qualifications. "We certainly need standards, no question about that," Andes said. He recalled watching a lawyer - not from the county - botch a murder trial capital trial a few years back. "His performance was abysmal, particularly during the penalty phase," Andes said. "He did not do any of the things I would consider even minimal." The public defender's office handled four capital murder cases between 2002 and 2003. All 4 resulted in pleas, including the triple homicide case of Michael McGrory. McGrory admitted to the murders of Kerry and Katherine Schadler and their unborn baby. He and co-defendant Matthew Eshbach - who was convicted more than a week ago of 3 counts of 2nd-degree murder - will be sentenced today before Judge Juan R. Sanchez. There are 227 people on Pennsylvania death row. Since 1978, when the state reinstated the death penalty, 3 people have been put to death and 5 have had conviction overturned. "It is always important that counsel is qualified to do the area of law they are practicing," said John F. McKenna, president of the Chester County Bar Association "The question is how do you get that experience." He suggested working a capital trial, even as the 2nd-chair attorney, is a good way. Stretton called trying cases a "dying art." He said he conducts 25-30 trials per year, but that is not the trend. "Most attorneys don't get that opportunity, particularly in the smaller counties," Stretton said. Part of the reason is lawyers all specialize in different types of law, he said. It is also because law firms have become "very business conscious," Stretton said, and "usually you don't make money when you are trying cases." So attorney now have fewer opportunities to present a case to a jury. "No matter how bright you are, and how enthusiastic you are, it takes a while to really learn to be a trial lawyer," Stretton said. "Everyone thinks they are the next Perry Mason. It is really a lot of hard work to get to be a good trial lawyer." While that is generally true, Judge Riley said experience does not always outweigh natural skills. "I've seen attorneys on their 1st case that have done a better job than some attorneys who have tried 15 or 20 cases," Riley said. (source: The Phoenix)
