[Deathpenalty] death penalty news----TEXAS, ARK., COLO., USA, PENN., TENN.

[Rick Halperin]

May 11



TEXAS:

Berry found guilty, could be given death penalty -- Jury to decide if he
gets death penalty


The man arrested in the shooting death of El Paso police Officer Angel
Andrew Barcena was found guilty of capital murder Wednesday by a state
jury, which now has begun hearing testimony related to his punishment.

The verdict in the trial of Theodore Michael Berry, 44, was returned to
Judge Sam Medrano of the 409th District Court after jurors deliberated for
about 9 hours over 2 days.

The jury found that Berry fatally shot Barcena on Sept. 25, 2004, while
Barcena and his partner were responding to a domestic dispute at Berry's
West Side home.

When the verdict was read, Berry remained silent and simply continued
looking at the jury. The conviction moved Barcena's family members,
including his widow, Kumi Barcena, to tears.

The punishment phase will continue today. Prosecutors have asked jurors to
consider sentencing Berry to death. In Texas, capital murder is punishable
by death or life imprisonment.

The fallen officer's family declined to comment after the verdict was
read. As Barcena's family walked out of the courtroom, they stopped to hug
one another and could be heard thanking God for the verdict.

Berry's wife, Stephani Berry, did not attend the proceeding. His lawyers
declined to comment.

During opening statements of the punishment phase, Clara Hernandez, one of
Berry's lawyers, told jurors "my client's wife has abandoned him."

Hernandez also said that Berry did not want them to introduce any more
evidence that could aid him, but that out of obligation to Berry and the
jury, they would continue to defend him.

Hernandez then told jurors about Berry's childhood and mother, saying
Berry had an irresponsible mother who liked to drink. Berry then blurted
out to the judge, "I want her to stop! I want her to stop!"

Medrano temporarily halted the trial. The trial resumed after Berry told
the judge he would not have another outburst.

Jurors then heard from Veronica Lynn O'Conner, who lived with Berry in El
Paso and in various places in Oregon. She said that on Oct. 31, 2000,
Berry became drunk and during an argument with her about his alcoholism,
he choked her until she passed out. When she awoke, she testified, he
placed the barrel of a shotgun on her chest and threatened to shoot her,
her two children and her dog.

She said he was arrested and convicted for the crime. Court records show
he was convicted in Lane County, Ore., on a domestic disturbance involving
a firearm charge.

(source: El Paso Times)

****************

Man indicted in death of infant


A 42-year-old Cleburne man has been indicted for capital murder in the
death of a 3-month-old child that he and his wife were adopting when the
infant died of head injuries.

Capital murder was the top count of a 5-count indictment returned late
Tuesday against David Michael Giddens in the Feb. 8 death of Nicholas
Hoffert.

The Johnson County grand jury also indicted Giddens on murder, felony
murder, injury to child and injury to child by omission charges in
connection with the babys death.

All 5 counts allege that Giddens caused the infant's death by striking him
by an object unknown to the grand jury. Blunt force trauma to the babys
skull caused his death, according to 2 autopsy reports presented to the
grand jury, District Attorney Dale Hanna said.

Hanna said he probably will not seek the death penalty against Giddens
because he has no criminal record. That means Giddens would automatically
be sentenced to life in prison without a possibility of parole if he is
convicted of capital murder by knowingly causing the death of a child
under 6, Hanna said.

If a jury rejects capital murder, the other 4 options are 1st-degree
felonies with sentences ranging from 5 years to 99 years to life in
prison.

Giddens is also eligible for probation. With a finding that he used a
deadly weapon to kill the baby, however, he would have to serve at least
1/2 of his sentence or 30 years of a life sentence before being eligible
for parole, Hanna said.

Giddens' attorney, Dick Turner, contends that prosecutors still must prove
that Giddens injured the baby and, if so, that he did so intentionally.

Giddens initially was arrested and charged with injury to a child by
failing to provide medical attention for the baby after his wife found the
infant not breathing when she went to check on him and his twin brother
early in the morning at their Cleburne home, police said.

But Turner said several other people cared for the baby, including
Giddens' wife, Latresa, and an older woman who cared for the baby and his
twin brother while Latresa Giddens worked.

Giddens, who has multiple sclerosis, told police and child abuse
investigators that any injuries he might have inflicted on the baby were
accidental, not intentional, Turner said.

"He gave about 3 different statements trying to explain what happened from
his point of view when I'm not sure he was in the best mental condition to
be giving statements without a lawyer," Turner said.

Turner said he will challenge the admissibility of those statements before
Giddens' trial, which probably will not take place until next year.

"His intention was not to hurt this child. He was trying to adopt this
child," Turner said. "He's got a medical condition that caused him to be
unsteady. He takes medication for that also. If he had anything to do with
it, it was an accident."

But Hanna said neither prosecutors nor grand jurors believe the baby's
death was an accident. Nor do they believe that anyone other than Giddens
was responsible for the baby's injuries.

"There were some other people around the child at the time, but we think
we have excluded them as suspects," Hanna said. "We're comfortable that we
have the right person charged with the baby's death. I feel very
comfortable that it was not an accident, and I don't think his medical
condition had anything to do with it."

Giddens remains in the Johnson County Jail in lieu of $150,000 bail set at
the time of his arrest in Nicholas' death. However, the grand jury
recommended the bond be raised to $250,000 on the capital murder
indictment.

No charges have been filed in connection with physical and sexual abuse
involving the dead baby's twin and an older girl the Giddens had adopted
earlier.

The surviving twin boy, who had broken ribs and other injuries, was
returned to the state of Michigan, which retained custody while the
Giddens adoption was pending. The 9-year-old girl, who was placed in state
custody after she told investigators she had been sexually abused, is
expected to be returned to Latresa Giddens custody next month.

Hanna and Turner were uncertain whether the allegations involving the
other children will be introduced in Giddens' trial.

(source: Fort Worth Star-Telegram)

********************************

The Cantu case: We must face up to the mistakes---0NAACP unit posts
material to try to spark investigation


DURING my 24 years as a staff lawyer and now as president and
director-counsel of the NAACP Legal Defense and Educational Fund, I have
worked on many cases. Our job is to confront injustice, so we see a lot of
the legal system at its worst, in Texas and across the country. But we
also often see the legal system at its best. Over the years, I have
developed a high regard for the legal institutions of the state of Texas
when they operate at their best.

We saw the worst in Tulia, where several dozen poor African-American
defendants were sentenced to long terms in prison in 1999 on the basis of
the uncorroborated word of a single undercover narcotics officer. Our
organization took their cases and discovered that the officer had
fabricated the evidence, lied in court and caused the convictions of
innocent people. While a remedy to the injustices in Tulia did not come
swiftly or easily, the Texas legal system ultimately worked to correct
those mistakes. The Texas Court of Criminal Appeals appointed a respected
retired judge from a different county to handle the cases; that judge
concluded that the convictions were based on perjury and recommended that
they be reversed; the Legislature unanimously passed special legislation
to permit the immediate release of those who were still in prison; and in
August 2003, Gov. Rick Perry pardoned 35 Tulia defendants.

We may be seeing the worst of the Texas legal system again, but this time
in a case in which the stakes were life or death. After the Tulia cases,
the Legal Defense Fund undertook an investigation into the possibility
that Ruben Cantu, who was sentenced to death in San Antonio in 1984, was
innocent of the murder for which he was executed in 1993. Once we started
looking into the case, we were immediately troubled by what we found.

The Cantu prosecution was fraught with systemic errors. Perhaps most
egregious was the fact that Cantu was convicted on the basis of a single
eyewitness identification, which was given under tremendous pressure from
police (according to the eyewitness) and which was subsequently recanted.
Mistaken eyewitness identification is the leading cause of wrongful
conviction in this country. In some cases, mistaken convictions are
revealed by DNA or other forensic evidence, but unfortunately for Cantu,
none was available in his case.

The Legal Defense Fund has investigated potential wrongful executions in a
few other cases. But uncovering the real facts in these cases is extremely
difficult and costly. In one case, that of Larry Griffin in St. Louis,
Mo., we had the assistance of a Chicago law firm, with whose generous help
we completed the investigation to our satisfaction, and presented the
chief prosecutor, the Circuit Attorney for the City of St. Louis, with
persuasive evidence that Griffin was in fact innocent of the murder for
which he was executed.

In the Cantu case, despite a substantial commitment of resources, more
work remained to be done. We shared the information we had with
independent journalists at the Houston Chronicle. After reviewing our
information they decided that the case merited full investigation. They
did an award-winning job of pursuing the investigation and published their
findings in a series of articles last November. Their stories revealed
strong new evidence of Cantu's innocence.

The Houston Chronicle looked into this case to determine whether a man
executed by the state was innocent. Compelling evidence that they
uncovered suggests that he was. Whether this is true, and, if so, how such
a miscarriage of justice could have occurred are questions that must be
addressed in an open and unbiased investigation by an appropriate arm of
the state government. Unfortunately, to date, the state has responded
mostly by issuing or threatening unwarranted subpoenas, including to the
newspaper itself.

We don't think this course of action helps answer the questions at hand.
In order to focus the inquiry back where it belongs, we are posting on our
Web site (www.naacpldf.org/) the materials that first interested us in the
case and prompted our discussion with the Houston Chronicle, so they are
available to all who are interested. We hope this access to information
opens up the dialogue and sparks a full, fair and serious investigation
into this case.

The NAACP Legal Defense Fund is opposed to capital punishment. We came to
that position in the 1960s, in large part because of the long history of
racism in the use of the death penalty against African-Americans and other
minorities. However, our position on capital punishment is not at issue in
the Cantu case. Whatever one's views on the death penalty, no American
favors executing innocent people. That is the issue here.

To avoid terrible mistakes in the future, we must face up to the mistakes
we may have made in the past - as the state of Texas did in Tulia -
without fear of what we may find.

(source : Houston Chronicle, Viewpoints -- Theodore Shaw is president and
director-counsel of the NAACP Legal Defense and Educational Fund)






ARKANSAS:

Death Penalty Sought In Road Rage Case


The prosecutor in Benton County says she may seek the death penalty for
the alleged shooter in an alleged road rage slaying.

Serafin Sandoval Vega,19, is charged with capital murder for the Saturday
slaying, which occurred after an apparent dispute in traffic.

A judge denied bail for Sandoval Vega and a defendant charged with being
an accomplice, 25-year-old Manuel Enrique Camacho-Ambriz. Also charged
with being is an accomplice is 21-year-old Roxana Hernandez, who was
granted a $250,000 bond.

Prosecutor Robin Green says the grounds for seeking the death penalty for
Sandoval-Vega would be that he "knowingly created a great risk of death to
a person other than the victim."

Daniel Ray Francis was a passenger in a car when he was shot. Police say
the shooter was in the back seat of the other car.

(source: Associated Press)






COLORADO:

Death Penalty Ruled Out For Camp Murder Suspect


A man accused of shooting a fellow camper to death near Dotsero last fall
will not face the death penalty if an Eagle County jury finds him guilty.

District Attorney Mark Hurlbert confirmed his decision in a motion filed
Wednesday in court.

Charles Anthony Gross, 55, is accused of 1st degree murder with extreme
indifference in the Oct. 7, 2005 killing.

Investigators said he shot Maria Madrid, 35, after becoming angry
believing her family was leaving a mess at their campsite.

A deputy previously testified Gross admitted to the shooting but said
Gross told him that he "didn't mean" to kill anyone and blamed the
incident on "rage."

Gross' arraignment has been continued until Sept. 7.

(source: Associated Press)






USA:

Dead Man Walking Reborn with Live DVD


The live concert of Dead Man Walking is finally being released in
conjunction with the re-release of the contriversial film's original
soundtrack. This special Legacy edition hosted by Tim Robbins features
never before seen footage of Eddie Vedder, Lyle Lovett, Ani Di Franco,
Steve Earle, John Densmore and others.

DEAD MAN WALKING REBORN WITH DVD Available Directly at www.activemusic.org
DEAD MAN WALKING: LEGACY EDITION

- DEAD MAN WALKING (1996) STARS BRUCE SPRINGSTEEN, JOHNNY CASH, NUSRAT
FATEH ALI KHAN, LYLE LOVETT, TOM WAITS, STEVE EARLE, PATTI SMITH AND
OTHERS

Expanded edition CD contains newly recorded bonus track by Eddie Vedder,
and bonus DVD premiering all-star benefit concert of 1998 - starring Steve
Earle, Ani DiFranco, Lyle Lovett, and Eddie Vedder with Rahat Nusrat Fateh
Ali Khan.

Expanded edition CD contains three bonus tracks previously unreleased in
the U.S. - and collectable fan club CD of demos, live performances and
rarities now commercially available for the 1st time.

Newest addition to Legacy Edition Series arrive in stores June 13th on
Columbia/Legacy (DEAD MAN WALKING)

"I wanted to see what Sister Helen's experience would inspire if it were
given to songwriters. I had found the story immensely moving. It was
loaded with feeling, it raised questions, it was an epic story of
struggle. We were telling that story in the film but what about all the
side stories? What about the emotion felt but left unsaid? What was going
on in the minds of these characters?"

- Tim Robbins, from the original liner notes to DEAD MAN WALKING

Rock in the real world - rock with a collective conscience and conviction
in the midst of the disillusionment and self-absorption of the '90s -
links a new entry into the prestigious Legacy Edition series of deluxe
commemorative multi-disc packages. DEAD MAN WALKING: LEGACY EDITION honors
the 10th anniversary of writer-director Tim Robbins' controversial film
(which premiered December 29, 1995), based on the book written by Sister
Helen Prejean, csj that opposed capital punishment. The soundtrack -
starring Bruce Springsteen, Johnny Cash, Nusrat Fateh Ali Khan, Tom Waits,
Steve Earle, Patti Smith and others - now becomes an expanded edition CD
with one newly recorded bonus track by Eddie Vedder, and a bonus DVD that
premieres the all-star benefit concert of 1998.

The Legacy Edition title will arrive in stores June 13th on
Columbia/Legacy, a division of SONY BMG MUSIC ENTERTAINMENT.

The original DEAD MAN WALKING soundtrack was executive produced by Tim
Robbins and David Robbins (music supervisor and composer of the film
score). The album takes off with the opening title track, performed by
Bruce Springsteen, which was nominated for an Academy Award. An
unprecedented gathering of stars contributed newly written and recorded
tracks to the project including (in subsequent order of appearance) the
late Johnny Cash, Suzanne Vega, Lyle Lovett, the late Nusrat Fateh Ali
Khan (who died a year later in 1997) on 2 tracks with Pearl Jam's Eddie
Vedder, Tom Waits, Michelle Shocked, Mary Chapin Carpenter, Steve Earle,
and Patti Smith.

As noted by Tim Robbins in his original liner notes (which are reproduced
on this Legacy Edition), a portion of the proceeds of the album go to the
Murder Victims Families for Reconciliation (MVFR), a group that looks
toward ending violence as an answer for violence; and to Hope House in New
Orleans, Sister Helen Prejean's community based organization that utilizes
educational programs and food distribution to help wipe out the root
causes of violence.

On Sunday night, March 29, 1998, a little over 2 years after the movie and
soundtrack releases, "Not In Our Name: Dead Man Walking - The Concert" was
staged at the Shrine Auditorium in Los Angeles as a benefit for Sister
Helen Prejean, csj Hope House and MVFR. Several of the artists who had
contributed tracks to the album - including Steve Earle, Lyle Lovett,
Eddie Vedder, and Tom Waits - enlisted for the concert, reprising several
of their songs from the soundtrack CD. Adding to the night, Ani DiFranco
performed three original songs. 2 numbers from the movie score brought
together Eddie Vedder, fellow Pearl Jam founder Jeff Ament, singer Rahat
Nusrat Fateh Ali Khan, tabla player Dildar Hussain, John Densmore (of the
Doors), and composer David Robbins.

The Concert was recorded by Alan Ames and Associates in conjunction with
ActiveMusic and is now being released as a DVD. "This was a one of a kind
event, the kind that will linger in the minds of the audience for quite
some time," said Alan Ames, who produced and directed the live concert
video. "Not only are the performances stunning, but the issue of the death
penalty is one all Americans must come to grips with."

Reflecting back upon the concert event, evocative liner notes are offered
from Sister Helen Prejean, Densmore, and Rahat. In "An Open Letter,"
Susann McMahon, who produced the concert, gives important background on
the capital punishment issue, and explains how the concert enabled her to
launch ActiveMusic, a 501(c) 3 non-profit production company
(www.activeMusic.org). "ActiveMusic's mission," she writes, "is to
accelerate social change through the power of music and media. We maximize
the impact an artist can have on the issues they care about. ActiveMusic
partners with artists to inspire, educate and empower individuals to make
socially responsible choices in their daily lives and communities."

In 1972, the Supreme Court declared capital punishment unconstitutional.
After a 4 year moratorium, the death penalty began to be reinstated by a
handful of states in 1976, led by Texas and Florida. In December 2005, the
1,000th inmate was executed since 1976.

DEAD MAN WALKING SOUNDTRACK: LEGACY EDITION (Columbia/ Legacy CK 83655,
originally issued 1996, as Columbia 67522) Disc One - Selections: 1. Dead
Man Walking - Bruce Springsteen; 2. In Your Mind - Johnny Cash; 3. Woman
On The Tier (I'll See You Through) - Suzanne Vega - 4. Promises - Lyle
Lovett; 5. The Face of Love - Nusrat Fateh Ali Khan with Eddie Vedder - 6.
The Fall of Troy - Tom Waits; 7. Quality of Mercy - Michelle Shocked - 8.
Dead Man Walking (A Dream Like This) - Mary Chapin Carpenter; 9. Walk Away
- Tom Waits; 10. Ellis Unit One - Steve Earle; 11. Walkin Blind - Patti
Smith; 12. The Long Road - Eddie Vedder with Nusrat Fateh Ali Khan; Bonus
track: 13. Dead Man - Eddie Vedder (previously unreleased).

Disc Two: NOT IN OUR NAME: DEAD MAN WALKING - THE CONCERT (DVD) - Program:
1. Ellis Unit One - Steve Earle; 2. Promises - Lyle Lovett; 3. L.A. County
- Lyle Lovett; 4. Lungs - Lyle Lovett with Steve Earle; 5. Crime For Crime
- Ani DiFranco; 6. Up up up up up up - Ani DiFranco; 7. Fuel - Ani
DiFranco; 8. Trouble - Eddie Vedder; 9. Dead Man - Eddie Vedder & Jeff
Ament; 10. The Long Road - Eddie Vedder, Jeff Ament, Rahat Ali Khan,
Dildar Hussain, John Densmore & Dave Robbins; 11. The Face of Love (same
personnel as track 15); 12. Billy Austin - Steve Earle. (Filmed at the
Shrine Auditorium in Los Angeles on March 29, 1998, hosted by director Tim
Robbins.) For further information on DEAD MAN WALKING, LEGACY EDITION
contact:

Alan Ames #713-627-0145

www.alanamesandassociates.com

OR

ActiveMusic www.activemusic.org

###

Contact Information

Alan Ames and Associates

Alan Ames

713-627-0145

alan at alanamesandassociates.com

www.alanamesandassociates.com

Purchase this now at www.activemusic.org

(source: PR.com)

************************

What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision
Provides Some Insights


As the Supreme Court moves into the climactic months of the current Term,
all eyes are focused on the impact of the new Justices, John Roberts and
Samuel Alito, on the Court's political balance and its approach to cases.

The signs so far have been rather confusing - as I explain. It's already
clear that, in a number of ways, both Roberts and Alito are likely to defy
predictions.

In this column, I'll briefly explain why Roberts has defied expectations,
even in the short time he's been on the Court - and I'll analyze a recent,
important Court decision penned by Alito to examine what kind of Justice
he may turn out to be.

It May Be Roberts, Not Alito, Who Resembles Scalia

Most prognosticators, based largely on the confirmation hearings, assumed
that Roberts would prove more moderate and open-minded than Alito.
Certainly, Roberts portrayed himself -- and was portrayed by a bi-partisan
group of supporters -- as someone with few ideological pre-commitments and
a penchant for extraordinary collegiality.

Alito's allies tried to play upon the same themes; indeed, his Third
Circuit Court of Appeals colleagues, of various political stripes,
testified on his behalf. But somehow, Alito came off as not only nerdier
than Roberts, but harder-edged - a Reagan revolutionary whose views,
unlike Roberts, had never been tempered by the compromises and moral
ambiguities of litigation and of big firm private practice.

So far, however, the roles have been reversed. At oral argument (a tricky
barometer, but one of the few we have thus far), Roberts has often sounded
little like the placid moderate conservative of his confirmation hearings,
and a lot like Antonin Scalia, aggressively conservative and sometimes
caustically so. On the bench, Roberts's questioning has sparked some testy
exchanges with his liberal colleagues, some of whom are rumored to have
found little evidence of Roberts's much ballyhooed collegiality in their
experience with him thus far.

Certainly, Roberts's first published dissent (in Georgia v. Randolph, a
Fourth Amendment case about a co-occupant's power to consent to a police
search of a home) gave the Court's liberal wing no comfort. It was biting
and uncharitable in its critique of the majority holding - and yet, often
overly glib in the arguments it put forth, as Sherry Colb noted in a
recent column for this site.

A Revealing Decision By Alito: His Work on a Decision Overturning a Death
Sentence

Alito, by contrast, has been studiously even-handed at oral argument. And,
now, in his first published opinion, Alito has authored a unanimous
decision in Holmes v. South Carolina overturning a murder conviction and
death sentence.

This is a slim reed on which to rest any predictions about Alito, the
Justice - and other imminent decisions will tell us much more. But Alito's
work on Holmes - his inaugural effort - is worth parsing, and offers at
least some useful clues. (Full disclosure, I was one of Holmes's lawyers
at the Supreme Court).

Bobby Lee Holmes was convicted and sentenced to death for the rape-murder
of an elderly South Carolina woman in 1989.

At trial, the prosecution relied very heavily on forensic evidence,
including a palm print and DNA blood evidence that implicated Holmes.

In response, Holmes sought at trial to undermine this evidence in 2 ways:
first, by introducing expert testimony suggesting that the forensic
evidence had been contaminated and was unreliable; and, second, by trying
to show that the police had planted the incriminating forensic evidence in
a plot to frame him.

In support of both these defenses, Holmes sought to introduce evidence
that the crime had actually been committed by another man, Jimmy White.
Holmes had witnesses who placed White in the immediately vicinity of the
crime at the approximate time of the crime. He also had witnesses who
would testify that White had acknowledged to them that Holmes was innocent
of the crime and that he, White, in fact was the perpetrator. In a
pretrial hearing, White denied making these statements and offered an
alibi; but yet another potential defense witness refuted the alibi White
offered.

The trial court excluded all of Holmes's evidence of "3rd-party guilt."
And, after Holmes's conviction and sentencing, the South Carolina Supreme
Court affirmed.

The South Carolina Supreme Court's Decision

As a starting point, the South Carolina court noted that, in order to be
admissible, 3rd-party guilt evidence must involve "a train of facts or
circumstances as tends clearly to point out such other person as the
guilty party" or, put differently, must raise a "reasonable inference" as
to the defendant's own innocence.

But then the court went much farther. It held that, where there is "strong
evidence of appellant's guilt, especially where there is strong forensic
evidence, the proffered evidence about a third party's alleged guilt does
not raise a reasonable inference as to appellant's own innocence."

Accordingly, the court concluded even third-party guilt evidence that, if
believed, would conclusively exonerate the defendant was inadmissible in
cases of "strong" forensic evidence because the 3rd-party guilt evidence
"cannot overcome" that evidence to create a reasonable inference of the
defendant's innocence.

Holmes's Arguments

Before the U.S. Supreme Court, Holmes challenged South Carolina's rule
under several theories:

First, he argued that South Carolina had violated his right - rooted in
the Due Process, Compulsory Process, and Confrontation Clauses - to
present a complete defense, and not to be encumbered by arbitrary rules
regarding witness competence or the reliability of evidence.

Historically, the Supreme Court had struck down several limitations on the
admissibility of evidence, including bans on the admissibility of
co-defendant testimony or hypnotically- refreshed testimony.

Nevertheless, this first argument faced some obstacles: In several cases,
the Court had also emphasized that states have wide latitude to create
evidentiary rules, and had rejected challenges to other evidentiary bars,
including a bar on the admissibility of polygraph evidence. And a number
of the Court's conservative Justices had expressed skepticism toward the
precedents striking down state evidence-admissibility limitations.

Holmes's second argument was that South Carolina had deprived him of his
right to have a jury determine all facts relevant to the issue of guilt or
innocence. After all, under South Carolina's rule, the trial judge was
called upon to act as a kind of preliminary trier-of-fact charged with
determining the credibility of the defendant's proffered evidence, and
then weighing that evidence against the state's.

Particularly in cases involving forensic evidence, under South Carolina's
approach, if the judge ruled against the defendant - as occurred in
Holmes's case - then the jury would never get to hear even competent,
probative third party guilt evidence. The upshot would be that the trial
judge would have screened out that evidence -- and thus partially
pre-judged the facts of the case - before the case ever got to the jury.

That reality clashed strongly with the basic division in our criminal
system: The judge says what the law is and instructs the jury on it,
whereas the jury is the sole trier of fact - assessing the evidence
presented to it.

Unlike Holmes's first argument, this 2nd argument tended to appeal to some
of the more conservative Justices on the Court - who'd championed the
necessity of jury fact-finding. Indeed, in a line of cases including
United States v. Booker, the conservatives had struck down various
sentencing guideline schemes (both state and federal) for allowing judges
to impose criminal sentences based on facts found by a judge, rather than
a jury.

Alito Replaces O'Connor: The Fear that This Would Be Bad News For Holmes

After the Court granted review in Holmes, but before oral argument, Alito
replaced Sandra Day O'Connor. It seemed, at the time, that this could only
be bad news for Holmes. O'Connor was a very strong advocate for the line
of cases on which Holmes's 1st argument - the due process/confrontation
clause argument -- rested.

Alito, by contrast, came to the Court with no track record on these
issues. And all indications from the record Alito did have, seemed
negative: He had been a federal prosecutor, and seemed to be a supporter
of the death penalty and states' rights. The fear was that he might bend
over backward to give states leeway in crafting evidentiary rules, and
would be dismissive of a defense that rested in significant part on an
alleged police frame-up. Prosecutors, after all, depend on, and often
trust deeply, the police or FBI agents with whom they work, and whom they
must put on the stand. As a result, prosecutors don't tend to look kindly
upon allegations that these investigators are corrupt or duplicitous.

But Alito's opinion declaring South Carolina's rule unconstitutional did
not fulfill any of these fears. Instead, it reflects much of the persona
Alito ascribed to himself at his hearings - namely, that he was a
plainspoken, pragmatic, and precedent-oriented judge. Whereas Roberts has
thus far shown signs of being more strident and less open-minded than
advertised, Alito has been true to his word during his brief tenure. So
far, he's vindicated the many colleagues who vouched for him.

Alito's Decision Style in the Holmes Case: Clear and Minimal

Only 11 pages long, his decision is a study in minimalism.

Unlike many death penalty opinions, which wallow in the gruesome facts of
the crime, Alito's sticks to the bare-bones story.

Unlike countless Court opinions that engage in long academic discussions
of doctrine, Alito's contains almost no theorizing at all. Indeed, his
opinion never even clearly states exactly what constitutional provision it
is that South Carolina's rule violates. Instead, Alito briefly summarizes
the relevant cases, and simply adduces a pragmatic rule that state
evidentiary rules must be rationally related to the goal of excluding
evidence with "only a very weak logical connection to the central issues"
of a case.

In applying this test, Alito's pragmatism again shows through. It cannot
be, he concludes, that the strength or weakness of a defendant's 3rd-party
guilt evidence can be viewed by measuring it against prosecution evidence
that is already assumed by the judge to be credible.

"The point is," he reasons, "that, by evaluating the strength of only one
party's evidence, no logical conclusion can be reached regarding the
strength of contrary evidence offered by the other side to rebut or cast
doubt."

There is nothing magical about Alito's phrases; no lyricism in his
opinion-writing. But on a Court that routinely divides sharply over death
penalty issues, his unadorned logic brought unanimity and a surely just
result.

Holmes, to be sure, is not a blockbuster case. It overturns an unfair
verdict. It undoes an unfair rule. And it is an important reminder that
DNA evidence, despite its strong scientific moorings, still depends for
its reliability on human factors such as the honesty of the police, and
the integrity of the collection process.

But perhaps a small step in the right direction by Alito holds the promise
of larger steps to come. This Spring will hold many other clues about
that.

(source: FindLaw - A former federal prosecutor, Edward Lazarus is the
author of 2 books -- most recently, Closed Chambers: The Rise, Fall, and
Future of the Modern Supreme Court)






PENNSYLVANIA:

Death warrants signed for 2 inmates


Gov. Ed Rendell signed warrants Wednesday for the execution of two
convicted Philadelphia murderers, bringing to 53 the number of warrants he
has issued in more than 3 years in office.

The execution of Jose DeJesus, 27, convicted of shooting to death Carlos
Martinez in 1997, was scheduled for June 27.

James Lambert, 55, convicted of killing James Graves and James Huntley in
September 1982, was scheduled to die by lethal injection on June 29.

There were 220 men and 5 women on Pennsylvania's death row as of May 1,
according to the Corrections Department. The 3 men executed in
Pennsylvania since the state's death penalty was reinstated in 1978 all
ended their appeals voluntarily.

(source: Associated Press)






TENNESSEE:

State asks for Holton execution date


Tennessee's attorney general on Wednesday asked the state supreme court to
set an execution date for a Shelbyville man who is convicted in the
November 1997 shooting deaths of his 3 sons and stepdaughter.

The request came within a week of an opinion by the justices who said a
state-paid law office created to represent death-row inmates can't speak
up for Daryl Keith Holton because Holton hasn't agreed to such
representation.

State Post Conviction Defender Donald Dawson has said that Holton hasn't
spoken with anyone for years except his mother, and his refusal to meet
with anyone else reflects a mental condition that would render him
incompetent for execution.

2 of Attorney General Paul Summers' attorneys noted that Dawson has issues
pending before a federal judge in an attempt to prevent Holton's
execution.

However, much of what Dawson has told the federal judge is the same thing
he told the state supreme court justices in briefs and during a hearing on
Feb. 2 which led to their decision that eliminated state obstacles for
execution of Holton, according to Solicitor General Michael E. Moore and
Jennifer L. Smith, associate deputy attorney general.

A call to Dawson's office Wednesday revealed he was unavailable because he
was preparing legal arguments.

Holton, 45, divorced his wife, Crystle, in 1993 after she became pregnant
by another man. Reconciliation had failed. He concluded that his
children's lives were ruined because they'd be raised in a broken home, so
he killed them. He planned to go to Rutherford County and kill their
mother and himself but realized if he died, he couldn't explain himself,
so he surrendered to police in Shelbyville.

A June 8, 2005, execution date had been set in Holton's case, but it was
put on hold nearly one year ago by Senior Judge Don Harris who presided
over Holton's case here on May 16, 2005. Moore and Smith said Dawson's
request to Harris was late and wasn't supported by Holton, so that failed
and his request for relief in the federal courts should also fail for the
same reasons.

A federal judge could decide he has jurisdiction, Smith and Moore said.
But without action on Dawson's requests in federal court, the state
supreme court justices are not constrained from acting.

Holton has not "demonstrated any intent to challenge his convictions
and/or death sentences," Summers' lawyers wrote to the justices.
Therefore, the request for an execution date should not be seen as
premature.

Rather, the attorney general is simply trying to enforce state law that
calls for an execution date when there's a conviction, death sentence and
no request from the defendant, they said. Since Holton hasn't opposed his
own execution, it's proper to set a date.

(source: Shelbyville Times-Gazette)