Sept. 15
TEXAS:
How Do You Sleep at Night?----Frances Newton and the Prospects for a New
Abolitionism
As I write this, Frances Newton is waiting to be executed in a prison
south of Huntsville, Texas, having seen her most recent request for
clemency denied by the Supreme Court. If the sentence is carried out, she
will be the third woman executed in the state since the Civil War, and the
first black woman. By the time anyone has a chance to read this, any call
I might make for letters to the relevant power-holders may very well be
too late. If she is still alive, by all means, write to them. Overload
their inboxes. Call them potential murderers. But if she is dead, perhaps
her death might serve as an occasion for those of us who find the death
penalty abhorrent and disgraceful to take stock of how miserably we are
losing this battle, and to contemplate the efficacy of our strategy.
As the New York Times reports, the bodies of Newton's husband and children
were discovered on April 7, 1987. Her husband had been shot in the head,
the two children in the chest, all with a .25-caliber pistol. The police
believe they have conclusive evidence that the murder weapon can be traced
back to Newton. On top of this, there is plenty of damning circumstantial
evidence. 3 weeks before the slayings, Newton took out $50,000 life
insurance policies on herself, her husband and her daughter. As the Times
reports, she named herself as beneficiary and said she signed her
husband's name to prevent him from discovering she had set aside money to
pay for the premiums.
So much for the details. What is Newton's position? "I know I did not
murder my kids and my family," she told The Associated Press in a death
row interview. "It's frustrating ... nobody's had to answer for that." Is
she telling the truth? I have no idea. What is certain, though, is that
any further discussion of the veracity of her claim to innocence will be
of no use to her after her death.
Nature has seen to it that no legal case shall be held open indefinitely.
Many a Nazi has managed to die of old age before justice caught up with
him. John Demjanjuk was too old and feeble to really be susceptible to any
effective punishment when it was discovered he had lied on his citizenship
application about his stint as a camp guard. Short of the limits imposed
by cruel time, the punisher of all, it seems reasonable that justice
should proceed as does science: every verdict shall be subject to revision
on the basis of disconfirming evidence. Capital punishment is not only
morally objectionable, but, in a justice system that pretends to link
punishment to proof of guilt, is epistemologically sketchy as well.
Exactly a month ago, the only woman ever to be executed in Georgia was
granted an official pardon, 60 years after her death. One would think that
this could have served as a lesson to the executioners down the road in
Huntsville. There is something about post-mortem pardons that is very
nearly as shameful as the punishment the pardonners acknowledge to have
been wrongly meted out, at least for those of us who believe that the only
real goods are those that come to one between the horizons of birth and
death. And such belated reckoning can't but raise the question: if the
state can wrongly kill someone, and then get away with a meek 'sorry', why
can't the murderer do so as well?
But what if she is guilty? Many on death row of course are. We
abolitionists, however, must never lose sight of the abhorrence of the
death penalty as such, not of a death penalty that occasionally misfires
and wrongfully executes the innocent, as may or may not be the case of
Frances Newton. For the problem is not just that the system, when it
executes innocents, tends to cull these innocents from a certain social
class, but also that in the application of the penalty to true killers,
those from this same class are given priority treatment.
Abolitionism is in a delicate spot, since pragmatically it seems best to
work on a case-by-case basis, and the most promising cases are the ones
where guilt is in question. And all the better if the death row inmate is
mentally handicapped. Let us proceed pragmatically, but never lose sight
of our principled opposition to execution tout court. Let us also not
neglect the cases of confessed murderers. For here, too, the state is
moving outside of its domain of competence in deciding when and how, and
at whose hands, the murderer will die. The state uses tax revenue to pay
the salaries of people who are charged with the task of soberly and
methodically strapping down human beings, physically in the prime of life,
injecting poison into them, and depriving them of this life. This is wrong
in a way that is fundamentally different from the wrongness of the murders
that precipitate executions. It is a moral stain on all of us.
As an addendum to this article, I note that, as far as Frances Newton is
concerned, it is indeed too little too late. She was executed last night.
I would love to hear from anyone in Texas who can honestly say they feel
any better, or will sleep any easier, now that this woman has been
discarded.
(source: CounterPunch; Justin Smith is a professor of philosophy and
writer living in Montreal)
****************************
Sacrificial Murder by Texas----Frances Newton Died for Bush's Sins
Frances Newton died Wednesday for Bush's sins.
The 40-year-old black woman, executed by the death-obsessed state of Texas
last night following a rejection by the US Supreme Court of her attorneys'
last-ditch appeal, and after the state's craven and bloodthirsty "pardons
and parole" board refused to recommend a stay to Gov. Rick Perry, hardly
merited mention in the nation's media, which is now awash in stories about
Bush's disaster in New Orleans. (The story got a 79-word shirt-tail report
on page 25 of the New York Times, tucked under a larger story about the
House changing rules for hate crimes and child molesters, and next to a
story about Hurricane Ophelia.)
Those who are looking for an example of an innocent person's being
executed by the state may well find it in the case of this unfortunate
woman, who almost certainly was not guilty of killing her husband and
child as charged by the state of Texas.
Her guilt was always hard to fathom, with the prosecution claiming that,
after killing her alleged victims, Newton somehow left the scene, disposed
of the gun, and returned only 30 minutes later with not a trace of blood
on her body or clothes, which were all dry-a good trick, as OJ Simpson
could attest, given the amount of blood at the scene.
Newton insisted on her innocence of the crime right up to her death, and
offered an alternative theory-that her husband and 7-year-old had been
killed over a debt to a drug dealer-a theory that her notoriously inept
and subsequently suspended attorney Ronald Mock never bothered to
investigate. Newton claimed she had removed a gun from the house after
hearing her husband and his brother talking about "some trouble," and she
thought it better to get the weapon out of the house.
The trial was rife with improprieties and prosecutorial misconduct- the
most egregious of which was that investigators had recovered not 1 but 3
identical .25 cal. Pistols during their investigation of the case, while
the prosecution pretended there had been only 1 pistol recovered and hid
the other 2 from the defense. It was also rife with the standard neglect
and incompetence we've come to expect from underpaid, unmotivated and
incompetent public defenders provided to poor and black defendants in such
cases-Mock never even brought in Newton's husband's parents, who had
volunteered to testify on her behalf, and who have steadfastly opposed her
execution!
Ironically, when there was more attention being paid to the case back in
December 2004, Gov. Perry granted a 120-day stay from execution because of
evidentiary questions in the case that raised some doubt about her guilt.
Yet the matter of the multiple guns and the outrageous hiding of important
exculpatory evidence from defense- which raised much more serious
questions about her guilt and about the fairness of her trial--came up
subsequent to that stay. In other words, doubts about Newton's guilt were
much greater the day she was executed than they were last year when Perry
granted a stay.
So what was different between December '04 and September '05? The lack of
public and media attention to the case.
Katrina and the disastrous Bush response to the deadly flooding of New
Orleans simply trumped the story of the 1st execution of a black woman
since the Civil War.
Of course, Newton also got less media attention all along because of her
race. The execution of an admitted female killer, Karla Faye Tucker, by
Texas only seven years ago, was page-one news for weeks leading up to her
execution. What was different? Certainly not the depravity of the crime,
as her bloodthirstiness was stunning. The real difference was her
race-Tucker was white--and the fact that Tucker had "found God" while on
death row.
So, in a sense one could say Newton is yet another victim of Hurricane
Katrina, though given her race and class, it is quite likely she would
have died anyway had the hurricane never hit the Gulf Coast. She is,
however, clearly also another notch for chief executioner George Bush. It
was while he was governor that her shameful trial unfolded. It was on his
watch as governor that her initial efforts to win a new trial were
rejected, it was a state pardons and parole board that still bears the
marks of Bush's appointments that rejected her plea for her life, and it
was in Bush's shadow as the former Governor Death that her latest effort
to win a stay or a pardon from Bush's successor, Gov. Perry, that she
finally met her fate with a lethal injection.
It is now time for death penalty opponents and the team of appellate
defenders who fought for Newton's life to redouble their efforts to prove
her innocence, and to once and for all demonstrate the monstrosity of the
sick, racist death penalty in not just Texas but the entire United States.
(source: CounterPunch: Dave Lindorff is the author of Killing Time: an
Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of
CounterPunch columns titled "This Can't be Happening!" is published by
Common Courage Press. Information about both books and other work by
Lindorff can be found at www.thiscantbehappening.net)
USA:
Excerpt from this morning's testimony by Roberts before the Senate
Judiciary Committee. Exchange is between Roberts and Sen. Russell
Feingold...
FEINGOLD: Turning again to the death penalty, when you worked in the
Reagan administration, you expressed strong opposition to federal courts
reviewing criminal convictions and state courts via writs of habeas
corpus.
As you know, prisoners who believe they were wrongly or unfairly convicted
in state courts may seek to have the federal courts hear their claims via
a writ of habeas corpus. Habeas corpus is a fundamental part of our legal
system that has long protected individual freedom.
In a 1981 memo, you argued that the availability of federal habeas relief
to state prisoners, quote, goes far to making a mockery of the entire
criminal justice system.
In that same memo, you said, quote, The question would seem to be not what
tinkering is necessary in the system, but rather, why have federal habeas
corpus at all, unquote.
Then, in 1983, as Senator Leahy brought up yesterday, you suggested that
if the Supreme Court wanted to reduce its case load, it should quote,
advocate the role of 4th or 5th guesser in death penalty cases, unquote.
Not on First Amendment cases or antitrust cases but death penalty cases. I
know that you've said that your memos in the Reagan administration
reflected the views of the administration and not your own, but in this
area, at least, your memos clearly indicate, I think, that these were your
views.
With the 1981 memo, for example, there's a cover note in your handwriting
directing that the memo be sent to John Rose (ph), an assistant attorney
general at the time, with a cover note that reads, quote, The attached
memorandum contains some thoughts on habeas corpus reform, for whatever
you think they're worth. Judge Friendly and Justice Rehnquist would never
have forgiven me if I'd remained mute, unquote.
That sounds a lot like a memo advocating your views not those of the
department.
With regard to the memo from 1983 that I mentioned, you were analyzing the
chief justice's proposal to create another intermediate appellate court to
take the pressure off the Supreme Court's docket. And you said, and I
quote, My own view is that it is a terrible idea. And you went on to say
that the fault lies with the justices themselves who take too many cases,
including death penalty cases.
And you sent a personal letter to Judge Friendly in 1981 that said, quote,
This is an exciting time to be at the Justice Department, when so much
that has been taken for granted for so long is being seriously
reconsidered. To cite just one example, serious thought is being given to
reform of habeas corpus.
I do not know what will eventuate, as you noted. What has come to pass as
the great writ is regarded by many lawmakers with no idea of the problems
as unalterable perfection, unquote.
Now, that discussion in a personal letter sounds like your own opinion as
well.
A decade later, when you were at the solicitor general's office during the
1st Bush administration, you signed several briefs that sought to strictly
limit federal habeas review. And in 1992, while in private practice, you
testified before the House Republican Task Force on Crime in favor of
further habeas restrictions.
The comments in your memos from the 1980s, I'm sorry to say, don't even
show the slightest concern about innocent lives possibly being lost if
federal habeas were eliminated. Does the possible hostility toward the
habeas process that was expressed in those memos, particularly in death
penalty cases, reflect your current view on federal habeas or have your
views changed or evolved?
ROBERTS: Well, as you know, the law has changed and evolved dramatically
since the early '80s. And, at least with respect to my personal letter to
Judge Friendly -- I guess I thought it was a personal letter...
(LAUGHTER) ... the situation has changed dramatically, as you know.
What I was referring to in the early '80s was a situation where there were
no limits on repetitive habeas corpus petitions; 4, 5, 6, dozens of
different petitions could be filed repetitively.
Congress saw that as a problem. Congress acted to address the very
concerns that I was raising there and passed legislation.
The Supreme Court saw it as a problem. The Supreme Court acted in a number
of cases, the Keeg case and others, in limiting the availability of
successive and repetitive habeas petitions.
Actually, what happened is the Supreme Court, I think, started down that
path and Congress made the decision that this is something they should
look at in a more comprehensive way. So Congress passed laws that restrict
when people can file repetitive and successive petitions.
Those are the very concerns that I was talking about. They were concerns
that had motivated the first person I worked for as a lawyer, Judge Henry
Friendly, to write on the subject. He wrote a famous article on habeas
reform entitled Is Innocence Irrelevant?, because he thought these
successive petitions had made sort of a game out of the whole process in
which the question of innocence was totally lost in these successive
petitions.
And the references to the great writ -- yes, of course the writ of habeas
corpus has an established heritage as a basis for complaining about
illegal confinement, but all the stuff we're talking about there, the 4th
and 5th successive petitions, raising new issues that should have been
raised in the 1st petition -- and as you know, that's what Congress'
legislation focused on.
FEINGOLD: But, Judge, did you not at the time, as I read in your
statement, advocate the abolition of federal habeas review?
ROBERTS: No. The purpose of what I was saying was to certainly reform and
abolish the system as it existed then, where people could file repetitive
and successive petitions. And I'll tell you why.
The main problem, and I think it's a particular concern in death cases, is
that nobody along the way feels that they're making a responsible
decision. If people get in a situation where they know,
OK, if you're on a jury and you sentence someone to death, if you, think,
'Well, he's going to file habeas petitions in state court and they're
going to look at it then'; and the person who considers the state habeas
petition says, 'I know there are going to be successive federal habeas
petitions, they look at the issue then'; everybody is pointing fingers in
opposite directions.
When Congress reformed this system, I think it helped to make clear that
the decisions that are going to be made on the first habeas petition is
going to be critical, and so, hopefully, it's looked at a lot more
carefully than in the prior system when you knew that wasn't the end of
the process, it wasn't even the beginning of the end; the conviction was
just the end of the beginning.
FEINGOLD: Would you agree that had the view that you advocate in your
memos prevailed in the early 1980s, the abolition of the writ, and federal
habeas review of state court convictions was removed entirely, had that
happened, innocent people would have been executed and serious
constitutional errors would have gone unaddressed?
ROBERTS: Well, that wasn't my position.
FEINGOLD: But I'm asking...
ROBERTS: No, my...
FEINGOLD: ... had that view prevailed, not necessarily your personal view,
but the abolition of the writ, isn't it the case that innocent people
would have been...
ROBERTS: I'm not in favor now and was not in favor then of not allowing
any federal habeas review.
FEINGOLD: I'm asking you whether you wouldn't agree that, as a matter of
fact, had the writ been eliminated, that some innocent people would have
been executed.
ROBERTS: Well, they certainly wouldn't have been able to assert their
claim of innocence in federal habeas. And people do succeed at that stage.
I certainly think it serves a valuable purpose.
But that, again was not -- you know the situation with respect to habeas
23 years ago was quite different than it is today. And the reason it's
changed, I think, is because Congress responded to those sorts of
concerns.
FEINGOLD: I take those comments as very important. And I know you can't
comment on this, but there are further efforts now to further limit this
right that could come before you.
And I know you can't comment on it. But I think it's of great significance
that you have acknowledged that some of those changes that were made in
the '90s have significantly affected your view about the propriety of the
habeas process.
(source: Associated Press)
