[Deathpenalty] death penalty news----N.Y., NEB., KY., N.J.

[Rick Halperin]

June 12



NEW YORK:

Goal of innocence commission to prevent unlawful imprisonment


4 men recently appeared before the Codes Committee of the New York State
Assembly and in quiet, articulate, and electrifying detail described how
they had spent a total of 63 years in New York state prisons for crimes
they did not commit. Jeffrey Deskovic and Douglas Warney described how,
despite DNA evidence proving their innocence, they had been forced to make
false confessions to murders. Roy Brown described how, despite DNA
evidence proving his innocence, he was convicted of a murder based on
false scientific evidence. And Alan Newton described how he implored the
New York City police repeatedly during his twenty-one years imprisonment
for rape to locate the DNA evidence that would ultimately prove his
innocence, and which requests the police ignored because they had
misplaced the evidence and could not find it.

The conviction and imprisonment of defendants who are actually innocent
poses the most daunting challenge to our criminal justice system. New York
State, with 23 exonerations, ranks third behind only Texas and Illinois in
convicting the innocent, and in the past 16 months has had nine
exonerations, more than any other state. New York leads all other states
in executing the innocent; eight New Yorkers have been executed in error,
according to a 1991 New York University Law Review article. The more than
200 DNA exonerations nationwide intuitively suggests that there must be
hundreds of other innocent people in prison who lack the powerful tool of
DNA evidence, or other investigative resources, to prove their innocence.
And, lest we forget, every time the system miscarries and an innocent
person is convicted, the guilty perpetrator remains at liberty to commit
other crimes.

How should the justice system respond to what Assemblyman Michael
Gianaris, D-Queens, calls an "epidemic" of wrongful convictions in New
York? Several proposals are currently on the table before the state
Legislature - expanding the DNA database, mandating the preservation of
crime scene evidence, imposing broader responsibilities on prosecutors,
and establishing an "Innocence commission" to inquire into the causes of
wrongful convictions and propose ways to prevent mistakes from recurring.

The concept of an "innocence commission" would serve the same function as,
for example, the National Transportation Safety Board when it conducts an
inquiry into a catastrophic transportation accident and proposes ways to
prevent such accidents from recurring. Surely the public interest in
protecting innocent persons from being wrongfully convicted and imprisoned
is not dissimilar to the public interest in protecting persons from unsafe
modes of transportation. Indeed, a prototype for such an Innocence
Commission was created by Westchester District Attorney Janet DiFiore, who
recently appointed a commission composed of law enforcement experts to
find out what happened in the Jeffrey Deskovic case so that it does not
happen again. Five other states - California, Connecticut, Pennsylvania,
Wisconsin, and North Carolina - have established Innocence Commissions
under varying procedures and protocols.

There are some important differences between the Senate and Assembly bills
seeking to create such a commission. The Assembly bill, which won passage
last week and in my opinion is preferable, explicitly requires the
commission to be an independent agency separated from other criminal
justice agencies, and with subpoena power to conduct intensive fact-based
investigations. The Senate bill, by contrast, places the commission within
the Division of Criminal Justice Services, which raises some question as
to whether such commission will be able to exercise the kind of
independence and objectivity that is necessary for it to make sometimes
difficult and controversial policy recommendations. Moreover, the Senate
bill does not appear to contemplate an intensive fact-based investigation
that the Assembly bill advocates.

Even with the most dedicated law enforcement officials constantly vigilant
to the potential for mistakes, there is probably no way to insure against
an innocent person being wrongfully convicted. Nevertheless, given both
the recognition and urgency of the problem, the innocence-related
legislation being discussed in Albany has the capacity to reduce the
chances that a person will be convicted by mistake. Our state government
must seize this important moment to enact legislation that would both
protect the innocent and insure that the guilty do not escape punishment.

The writer teaches law at Pace University Law School. He also appeared
before the Codes Committee, testifying on the need for an innocence
commission, the prosecutor's duty to avoid wrongful convictions, and the
right of convicted defendants to have access to the courts to challenge
their convictions. He is a frequent contributor on criminal justice
matters.

(source: Opinion, New York Journal News)






NEBRASKA:

Suspects await 'speedy' trial


On May 5, 1958, Charles Starkweather swaggered into a Lincoln courtroom,
on trial for the murder of Robert Jensen. The trial lasted 18 days, and a
jury brought back a guilty verdict within 24-hours.

On January 21, 1958, the 19-year old high school dropout with an obsession
with actor James Dean visited his 14-year old girlfriend at her home at
924 Belmont in Lincoln. He argued with her mother and stepfather, who were
opposed to Charlie Starkweather's relationship with their daughter, Caril
Ann Fugate.

In interviews given before his execution, Starkweather admitted shooting
Caril's mother and stepfather, and stabbing her 2-year old half-sister to
death.

After pinning a note, "Everybody sick with the flue (sic)", the couple
spent the next six days watching television, having sex and gorging on
junk food.

Suspicious relatives alerted law enforcement and when Lincoln police
arrived at the house, the couple had disappeared. Another week passed
before they were captured in Wyoming. In the two weeks following the
murders of Marian and Velda Bartlett, and Caril's half-sister, Betty Jean,
2, they left a total of 11 dead bodies and a stunned and stricken Nebraska
in their wake.

On May 24, 2007, 18-year old Michael Grandon and 15-year old Alisha Ochoa
were escorted from Lincoln County Jail to the courthouse for their 1st
appearance in court after they were arrested in Wyoming. The pair were
charged with the murder of Ochoa's mother, Lori Solie, 38, and her
half-sister Tiara Solie.

The parallels between the Starkweather-Fugate murder spree and the
Grandon-Ochoa case are hauntingly similar. The ages of the accused, the
familial relationship between the accused and the victims fleeing to
Wyoming to avoid capture.

However, the distance from 1958 and 2007 encompasses much more than time.

In today's court system, it is practically unheard of to have a 5-month
time period between arrest and trial for any major crime. Inmates
sentenced to death remain on death row for years. Starkweather was
executed on June 25, 1959, 17 months after his arrest.

"There have been big changes in the law since the Starkweather trial,"
said Jerry Soucie, attorney for the Nebraska Commission on Public
Advocacy. "In those days, you would have a trial and then essentially one
appeal to a higher court, the Nebraska Supreme Court. The federal
government didn't get involved.

"Today, you have a trial, then a direct appeal," Soucie said. "Then you
have the right to appeal your attorney's competency. Since the adoption of
the state post-conviction act, you have the right to a federal judge
deciding whether the state court did their job."

Logistics adds 1 to 2 years to the process, Soucie said.

In 1963, the U.S. Supreme Court ruled in Gideon vs. Wainwright that state
courts are required to provide lawyers in criminal cases to defendants
unable to afford their own. Prior to 1963, the Supreme Court had ruled in
1935 in the famous Scottsboro Boys case that a right to counsel was
essential, but had left implementation up to individual states.

"Gideon created the public defender system," Soucie said. "Now defendants
have a federal right to an attorney.

"If you have that right, what happens if the state courts are not honoring
your federal constitutional rights? That's a federal issue," Soucie said.

A 1990 study, "A Broken System," revealed that 68 % of capital cases
nationwide had serious, reversible errors over a 23-year period.

"Lawyers are being much more careful, with discovery, expert witnesses,
everything," Soucie said. "A competent attorney will log up to 2,000 hours
on a capital case.'

For example, most defendants had chaotic childhoods, and most capital
defendants in Nebraska are from somewhere else.

"I had a case where my client was from Texas," Soucie said. "I had to go
to Texas to interview his grandmother, schoolteachers, childhood friends.
It all takes time."

Changes in the law have slowed down the process - something Soucie says
isn't necessarily a bad thing.

"I've been doing this for more than 20 years, and I've never had a delay
in a case for the sake of delay," Soucie said.

Caril Fugate was the youngest female ever to be tried for 1st-degree
murder in America. She went to trial on Oct. 27, 1958, less than a year
after the crimes. At that time, juveniles could receive the death penalty.
Chief prosecutor Elmer Scheele told the Fugate jury, "Even 14-year-old
girls must recognize they cannot go on murder sprees. The time has come
when she must face the consequences of her actions."

Fugate was convicted on Nov. 21, 1959, and sentenced to life in prison.
She was paroled in 1979.

(source: North Platte Telegraph)






KENTUCKY:

Death row inmate asks state to execute him----SAYS DEATH PART OF THE DEAL
IN HIS GUILTY PLEA FOR '02 CRIME


A Kentucky death row inmate is asking the state Supreme Court to uphold
the "benefit" of a death sentence, saying it was what he bargained for and
wanted.

Marco Allen Chapman filed an affidavit with the high court last week,
saying he wants to be put to death for the murders of two children and a
brutal attack on 2 other people in Northern Kentucky in 2002. Chapman
pleaded guilty to the attacks in 2004 and asked to be sentenced to death.

"My bargained-for benefit in my 'plea deal' was the Death Sentence, and I
specifically, knowingly, intelligently, and voluntarily requested the same
from the Circuit Court," Chapman wrote in a 3-page affidavit.

The Supreme Court is reviewing Chapman's case, as it does with all death
sentences. Chapman said he intends to waive the remainder of his appeals
as soon as possible.

Chapman, 35, admitted to killing Cody Sharon, 6, and Chelbi Sharon, 7, and
attacking their mother, Carolyn Marksberry, and their sister, Courtney
Sharon. Chapman said he deserved to die for the Aug. 23, 2002 attack at
Marksberry's home in Gallatin County.

The trial judge, Tony Frohlich, said at the time that he could find no
legal reason not to grant Chapman's request.

Chapman's court-appointed attorneys, Donna Boyce and Randall Wheeler,
argued before the Supreme Court that Frohlich shouldn't have gone along
with Chapman's request for a death sentence. They also argued that
Chapman's plea should be set aside and Chapman treated for depression
before a new plea hearing is held.

The attorneys filed a motion in response to Chapman's affidavit saying
they are attempting to put together a procedure that both meets Chapman's
desire to be executed and the constitutional requirements of a death
sentence.

Chapman said in the affidavit that sending his case back to the trial
court would invalidate his rights, as well as the rights of other inmates
who choose to plead guilty.

"My rights are mine, and I am entitled to waive them just as is any other
defendant," Chapman wrote.

Vicki Glass, a spokeswoman for the Kentucky Attorney General's office,
declined to comment on Chapman's affidavit.

Volunteering for a death sentence is not new. Since 1977, when Gary Mark
Gilmore waived his appeals and was killed by firing squad in Utah, 124
inmates in 26 of the 38 states with a death penalty law have waived
appeals and asked to die, according to the Death Penalty Information
Center in Washington, D.C.

A 2nd Kentucky death row inmate, Shawn Windsor, is also attempting to
expedite his own execution. Windsor pleaded guilty in 2006 to killing his
wife and son. He is on Kentucky's death row, but Chapman's case is further
along in the automatic appeals process granted in death penalty cases.

(source: Associated Press)




NEW JERSEY:

Lawsuit filed over imprisonment


Larry Peterson filed a civil rights lawsuit Monday against the Burlington
County prosecutor and the state police laboratory for wrongfully
prosecuting a 1987 rape and murder for which he spent nearly 18 years in
prison before his case was overturned.

Peterson, 56, of Pemberton Township, eventually won court appeals as a
result of DNA testing in what had initially been a death-penalty case. He
has has been a free man since the charges were finally dropped in 2006.

The lengthy court fight waged by Peterson to clear his name in this
Burlington County murder and rape case is also the subject of a 2-part
national radio documentary that begins airing today.

In the lawsuit filed in U.S, District Court here, Peterson alleges that
Prosecutor Robert Bernardi and at least a half-dozen of his investigators
manufactured evidence in the original investigation of the 1987 crime.
Bernardi has refused to comment on the suit.

"He was falsely convicted based on perjured testimony and junk science and
sent to prison for 18 years," the lawsuit states. "Luckily, he was spared
the death penalty . . . and eventually exonerated in 2006 by DNA
evidence."

William Buckman, Peterson's lawyer, said the lawsuit defendants engaged in
"a series of misleading tactics aimed at forcing and/or inducing persons .
. . to provide false testimony and false statements against Larry
Peterson."

For example, Buckman said they used misleading photographic
identification, coerced key trial witnesses to provide false statements
and did not turn exculpatory polygraph evidence over to the trial
prosecutor.

Also, he alleges Gail Tighe, a former technician at the state police
laboratory, improperly compared hair and other scientific evidence at a
time when DNA evidence was not yet available.

Buckman accuses the prosecutor's office of fostering constitutional
violations to a fair trial and other rights, describing an office culture
where misconduct was ignored and investigators abided by a "code of
silence."

"Under this code, investigative officers charged with upholding the law
routinely ignored and otherwise failed to report or take action against
fellow investigators who engaged in misconduct," Buckman wrote.

Among six other named defendants from Bernardi's office is Michael King,
the chief of county detectives who retired May 31.

The lawsuit seeks an unspecified amount of money to compensate Peterson.

Meanwhile, National Public Radio will detail Peterson's life since his
release from prison and the DNA testing that led to the reversal of his
conviction for murdering and raping a mother of two in Pemberton Township.

The radio network wanted to explore what happens to a convict after his
release back into society as a result of DNA testing that led to his
freedom, said station spokeswoman Anna Christopher.

DNA scientific testing was not available when Peterson, 56, was convicted
in 1989 of the sexual assault and murder of Jacqueline Harrison in the
Browns Mills section of Pemberton Township in 1987. He was sentenced to 40
years in state prison and spent more than 17 years behind bars before
being released in 2005 after DNA testing of hairs and semen on the victim
could not link him to the crime.

A Superior Court judge then overturned his convictions, but the charges
were not dropped completely until 2006.

Today, Peterson is out of work since leaving a construction job and is
awaiting resolution of a separate Superior Court lawsuit seeking
compensation from the state treasurer for wrongful imprisonment.

"New Jersey -- I just can't get rid of New Jersey. New Jersey has a stench
on me," Peterson told NPR host and senior reporter Robert Siegel of his
compensation lawsuit, which may take several more years to resolve. The
documentary includes interviews with the victim's sister, who believes
Peterson is guilty despite DNA evidence, and Robert Elder, a former friend
and a key prosecution witness who helped convict Peterson. Last year,
Elder recanted his court testimony that Peterson told him he sexually
abused and killed the woman.

Siegel said he spent two years following the case beginning in 2005 as
Peterson was about to be released from jail.

Bernardi, who did not grant NPR interviews for the documentary, said
Monday he declined comment because of the ongoing compensation lawsuit in
Superior Court. Previously he has told the media that DNA is only one type
of evidence and lack of it does not mean a defendant did not commit a
crime.

Bernardi had hoped to retry Peterson on the basis of witness testimony but
dropped the case in 2006, saying that Elder's recantation substantially
weakened the state's circumstantial case.

ON THE RADIO

"The Exoneration of Larry Peterson' will air today and Wednesday as a
segment on the daily NPR news magazine program "All Things Considered,'
which begins at 4 p.m. The Peterson documentary is scheduled to begin on
WHYY-FM (90.9) in the South Jersey- Philadelphia region at 4:30 p.m. each
day. The program also is accessible at www.npr.org.

(source: Courier-Post)