Dec. 10


Bar high for death penalty ---- New Hampshire hasn't executed anyone since

Before the sun rose on Oct. 16, the Manchester police received a report of
gunfire at a city apartment. Officer Michael Briggs, a bicycle patrolman
and Concord father of 2, responded to the call. An hour later, the police
say, Briggs was shot in the head while chasing 1 of the suspects down a
dark alley.

The police soon arrested Michael "Stix" Addison, an unemployed 26-year-old
living in Manchester, and charged him with capital murder. Addison has
spent the past month in prison, awaiting a trial that could take years and
end with his execution.

But the lawyers attempting to prove his innocence, those attempting to
prove his guilt and the 12 citizens who will decide his fate have no
playbook to work from. Neither does the judge. That's because New
Hampshire last executed someone in 1939, and the law has since changed.

"In law, we turn to precedent," said Jim Rosenberg, a Concord lawyer and
former homicide prosecutor for the state attorney general's office. The
lawyers in the Addison case "operate in a vacuum," he said.

As one of 38 states where the death penalty is legal, New Hampshire has,
in recent history, charged people with crimes punishable by death. But so
far, none of those cases has resulted in a trial. Of all the states with
the death penalty on the books, New Hampshire is the only one without an
inmate on death row.

It's not only a lack of legal history, however, that makes trying a
capital murder case in New Hampshire tough, lawyers and judges said. It's
also the procedure. For one, the case doesn't necessarily end with a

"What people have to understand is if Mr. Addison is convicted of capital
murder, that does not lead to anything close to an automatic conclusion
that he will get the death penalty," said Chuck Temple, head of the
criminal law clinic at Franklin Pierce Law Center in Concord.

Instead, if a jury decides the accused is guilty, the law says jurors must
then make another decision, one based on a whole new crop of deeply
personal evidence. In a subsequent hearing, they must decide whether he
will live the rest of his life in prison or whether he will die by lethal

It's a delicate process. And everyone involved knows that any mistakes
could be grave.

"Any lawyer will tell you death is different," said Jim Moir, a Concord
attorney who once helped defend a man accused of hiring 2 people to kill
his wife, a capital crime. "If you make mistakes, a person will die."

A narrow law

The state's capital murder law is narrow. So narrow that former state
attorney general Phil McLaughlin, who oversaw three potential capital
murder cases during his tenure, likened the law to a fine sieve.

"If a case gets through and the jury finds for the death penalty, it's a
remarkable thing," he said.

There are only 6 circumstances in which someone can be charged with
capital murder in New Hampshire, including killing a police officer,
killing someone during a rape or killing someone for pay. To be found
guilty, a jury must decide that the accused acted "knowingly," a
distinction sandwiched between "purposely" and "recklessly" in the state
criminal code.

Afterward, jurors face the task of choosing the sentence, an untested
process in New Hampshire, by weighing opposing factors, known as
aggravating and mitigating factors.

An aggravating factor is something that shows the person deserves the
ultimate punishment. It could be that he has a heinous criminal record or
that he committed the murder to avoid arrest. A mitigating factor is
something that shows he deserves mercy; maybe he had a traumatic childhood
or was under severe pressure when he committed the crime.

The factors are not equal. Aggravating factors are harder to prove and the
jury has to unanimously decide their truth. Mitigating factors, on the
other hand, are considered true if just one juror believes them. A
sentence of death can only be imposed if all 12 jurors think the
aggravating factors outweigh the mitigating factors.

That complicated balance is why some local lawyers said the death penalty
law is invoked so infrequently. To prove that someone deserves to be
executed, no matter how solid the criminal evidence, isn't easy, they

"Factually speaking, even if it seems . . . the state would have a
compelling murder case, it's not necessarily so that they've got a
slam-dunk for a death penalty case," Rosenberg said.

The last time

The state's last attempt at a capital murder case was in 1997, when
then-22-year-old Gordon Perry was charged with fatally shooting Epsom
Officer Jeremy Charron. The police said Perry pulled the trigger after
Charron approached him and a friend while they slept in a car near a
popular Epsom swimming hole.

Perry was assigned several public defenders, including Richard Guerriero
and Barbara Keshen. A year after the shooting, Perry pleaded guilty to
murder as part of a deal that spared him the death penalty.

Now, 9 years later, Guerriero will defend Addison, along with public
defender Donna Brown, in the state's 2nd capital murder case in a decade.
Guerriero did not want to comment for this story.

But Keshen, who now works for the New Hampshire Civil Liberties Union,
said Perry's defense lawyers knew from the start that they'd have to raise
every legal challenge they could. By the time Perry accepted the plea
deal, his lawyers had filed 19 motions alleging that the state's death
penalty statute was unconstitutional.

"There's an attitude, and there should be, of no stone left unturned on
the part of the defense," Keshen said. "Every single motion that can
possibly be raised will be raised."

The challenges raised in the Perry case ranged from complex legal
arguments to simple moral questions. Guerriero, Keshen and the others
argued that the death penalty law was flawed, for example, because there
are no specific instructions on how to weigh aggravating and mitigating
factors. They also argued that executing someone by lethal injection is
cruel and unusual punishment.

"Lethal injection is not a kinder, gentler way of killing," they wrote in
a court filing. The reality, they said, is "bursting veins, convulsions,
unexpected drug interactions, needles popping from arms, blood and toxins
spraying the walls of the execution chamber, witnesses traumatized to the
point of unconsciousness."

"No matter what the worst of our murderers deserve," Perry's lawyers
concluded, "we as a community do not deserve to have our values betrayed
by the legalization of torture."

By the time Perry pleaded guilty, former Merrimack County Superior Court
judge Joseph Nadeau, who was assigned to the case, had ruled on less than
half of the challenges, all of which he shot down. Keshen said she expects
Guerriero and Brown to raise the same issues - and more - in the Addison

"You don't have the luxury of picking and choosing in a death penalty
case," she said.

Nadeau, who's now retired, agreed. When society decides to execute
someone, he said, people want to make sure every possible defense has been
raised and rightfully defeated, no matter how long it takes.

"That's part of what makes people accept capital punishment," Nadeau said.

The penalty's history

The 1st 2 people executed in New Hampshire were killed on the same day:
Dec. 27, 1739. Sarah Simpson and Penelope Kenny (whose last name has also
been spelled Kenney and Henry) were hanged in Portsmouth for murdering
their newborn babies after a dead infant girl was found in a well.

Though the identity of the dead baby was never discovered, both women were
convicted of her murder. Neither was married, and concealing the death of
a bastard child was a capital crime. So were murder, rape and bestiality.

200 years later, when the state executed its last prisoner, the law had
changed. In 1939, Howard Long was hanged for murder, the only offense
punishable at the time by death. Long fatally beat a young boy with a car
jack after the boy resisted his sexual advances. He was executed at the
state prison in Concord on July 14.

In the time since Long's hanging, the law has become more limited and the
method of execution has changed to lethal injection. But the state has yet
to kill anyone by that means because no one has mounted a successful death
penalty case in the past 70 years.

There have, however, been contenders. McLaughlin, now in private practice
in Laconia, can recall 3 from his 6 recent years as attorney general: the
man who raped and killed Elizabeth Knapp, a 6-year-old Hopkinton girl;
Carl Drega, a man who went on a North Country shooting spree that left
four people dead; and Gordon Perry.

But in each case, McLaughlin said, something prevented him from seeking
the death penalty. The Knapp case was weakened, he said, because the
police first arrested the wrong man. Drega was killed when police officers
returned fire. And McLaughlin said he was hesitant to try Perry because
the only witness to Charron's shooting was unreliable.

Though the law says prosecutors must only prove the aggravating factors in
a death penalty case beyond a reasonable doubt, McLaughlin said he thinks
it's unlikely that a jury would ever sentence someone to die unless they
were absolutely sure he deserved it.

That's why, McLaughlin said, he suspects the state lawyers prosecuting
Addison have important evidence that hasn't been made public, evidence
that would make them confident enough to pursue a capital murder charge.
The fact that another police officer witnessed the shooting also helps, he

But even if they're successful, McLaughlin said he knows it won't be a
much-celebrated victory.

Condemning someone to death "should be about the hardest thing we make
people do," he said. "And it is."

(source: Concord Monitor)


Presidential candidate stays in the pen

Sen. Sam Brownback took his budding presidential campaign to prison this
weekend, spent a restless night among inmates and pressed his message that
faith can work even to improve the lives of hardened criminals.

The Kansas Republican had no expectation that the drug cartel hit man,
serial rapist or other convicts in his cell block would vote for him.
After all, about nine in 10 of the inmates are serving life sentences. His
mission at the Louisiana State Penitentiary, rather, was to promote
religious-based prison efforts to curtail violence and provide inmates
with an alternative to crime once - or if - they got out.

On Friday night, Brownback joined hundreds of inmates at a prayer service
before prison officials escorted him to his modest sleeping quarters. On
Saturday morning, he emerged from his 7-by-10-foot cell to tour the
maximum-security facility and take a walk down death row.

"There aren't probably a lot of votes for me here," he said. "There can be
a lot of prayers, though."

Last Monday, Brownback formed an exploratory committee that allows him to
raise money for a possible run for president. He kicked off a multistate
tour with a more conventional trip to Iowa on Tuesday before traveling to
the prison.

About 90 % of the 5,108 inmates at Angola are lifers. Half are convicted
murderers. Eighty-five are on death row.

Burl Cain, the prison's warden since 1995, attributed a drop in violence
at the prison to Angola's commitment to "moral rehabilitation" programs.
The prison has 6 interfaith chapels, nightly prayer services, 4 part-time
chaplains and a "Bible college" that has trained dozens of inmates to be

Brownback, 50, said programs such as Angola's can "break the cycle" that
sends two-third of inmates back to prison after they are released.

"We don't want to build more prisons in the country," he said. "We don't
want to lock people up. We want people to be good, productive citizens."

Sidney Deloch, an inmate who is 28 years into a life sentence, said
faith-based programs also have made life better inside the prison.

"This prison used to be one of the bloodiest in the country," said Deloch,
a Baptist minister at Angola. "It's still bloody because it's covered with
the blood of Jesus Christ, and this blood is saving people's lives."

Brownback, an opponent of abortion, gay marriage and embryonic stem-cell,
long has been a champion of religious conservatives. He also has been a
staunch advocate of government's use of religious-based initiatives to
combat poverty and crime.

"I believe in a separation of church and state, but I do not believe in a
removal of faith from the public square," he told the prisoners. "Our
motto of our land is, 'In God We Trust.'"

States with religious prison programs are watching how federal courts
resolve a lawsuit by Americans United for Separation of Church and State
against the state of Iowa, challenging a program run by Prison Fellowship
Ministries. The ministry organization is appealing a federal judge's order
to end the Iowa prison program and repay the state $1.53 million.

Brownback may face long odds against candidates with much better name
recognition, but he hopes to broaden his appeal by accentuating issues
such as prison reform and AIDS. He recently took an AIDS test with Sen.
Barack Obama - an Illinois Democrat considering a presidential run, too -
to encourage others to be tested.

Brownback, who also has stayed overnight at a Kansas prison and at a
homeless shelter in Washington, D.C., said his night at Angola was a
"little rough." One of the inmates on his cell block was a hit man for a
drug cartel. Another was a serial rapist serving 19 life sentences.

"I didn't sleep the best," he said. "But to go and feel and smell it, I
think it gives you a feel for something you just can't read about."

When he addressed the inmates on Friday, he assured them he is not "soft
on crime." On Saturday, as he shook hands and chatted with prisoners on
death row, one inmate pressed him for his stance on capital punishment.
Brownback said he preferred it be "limited in its use."

"I only support it in cases where we can't protect society from a person
who perpetuates the crime," he told the inmate.

Brownback was introduced to the inmates by Jorge Valdes, a convicted drug
trafficker who earned a master's degree and a doctorate in New Testament
studies after 11 years in prison. He now frequently counsels inmates at

"I would like to one day see an article that says, 'From the Big House to
the White House.'" Valdes said, urging prisoners to get on their knees and
pray for Brownback.

(source: Associated Press)

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