Nov. 29
TEXAS:
The British woman on death row
Last night, Channel 4 screened a documentary about convicted murderess Linda
Carty; with major contributions from Clive Stafford Smith, it could only have
been an exercise in special pleading.
For those who can receive it, The British Woman on Death Row can currently be
found here.
This is a documentary about Clive Stafford Smith - patron saint of lost causes
- as much as about convicted murderess Linda Carty. It is introduced as the
extraordinary story of the British woman on death row. The reality is that
while Linda Carty was indeed convicted of an extraordinary murder, her claim to
British citizenship is as tenuous as Stafford Smith's grip on reality. The
entertainer Cliff Richard was born in India; does anyone claim Cliff Richard is
Indian?
A much younger Clive Stafford Smith appears in this video, dating from the time
he shot to fame as the gullible limey lawyer who advocated for Edward Johnson,
who was executed for murder in 1987. We are told here that Johnson was executed
in spite of many of the guards on death row believing him to be innocent,
though we are not told how many of those guards sat on the jury that convicted
him and sentenced him to death. That claim of innocence is echoed by Mr
Stafford Smith who writes on the Reprieve website:
“One of the executions I witnessed was one of an innocent man: Edward Earl
Johnson, who was executed in a Mississipi gas chamber in 1987”. (His spelling
of Mississippi).
Got that, Ed Johnson was innocent. Right?
Although this documentary is about Linda Carty, it is worthwhile making an
excursion to the Johnson case here to demonstrate just how objective and honest
is our crusading lawyer.
Let us see what the United States Court of Appeals, Fifth Circuit said on May
19, 1987.
In Johnson's brief, to which Stafford Smith contributed, it is argued:
(A) His trial counsel were ineffective. - That old useless lawyer gambit again;
it is truly amazing how many bad lawyers there are in the good old US of A, and
somehow they all seem to get lumbered with innocent clients on capital charges.
(B) His prior habeas corpus counsel were ineffective. - Obviously, if his
lawyers were so bad.
(C) An instruction of the trial court created a mandatory presumption that
improperly shifted the burden of proof to him. - Hmm, like explaining how he
came to be in possession of the murder weapon?
(D) The prosecution concealed the fact that a biased juror failed to disclose
her bias. - Apparently, the juror had a relative in the county, a stepson, who
was in no way connected with these proceedings. That one is weak indeed.
(E) A statement taken from Johnson violated his right to counsel under the
sixth and fourteenth amendments. - These appear to relate to the right to a
speedy trial and perhaps something to do with (playing the) race (card), a well
worn tactic for black defendants who are as guilty as sin. (F) It would violate
the eighth amendment to execute Johnson because he was only 18 years old at the
time of the crime. - The crime he did not commit?
(G) The Mississippi capital statute under which Johnson was tried is
unconstitutional on its face because it limits the mitigating circumstances he
could develop for the jury.
Whatever that means, does the reader notice a curious desideratum? Not one of
these grounds of appeal claims Johnson is not guilty/innocent and has been
wrongly convicted. That is hardly surprising because in the judgment we are
told:
“Johnson asserts that at a time when he was the only suspect, when he was in
custody, and after his family had told law enforcement agents that they wished
to get Johnson an attorney, a statement was taken from him by officers. In this
statement, Johnson implicated himself and gave officers sufficient information
to enable them to recover Marshal Trest's gun that Johnson had used to murder
the officer.”
Oops. What was that about “One of the executions I witnessed was one of an
innocent man: Edward Earl Johnson, who was executed in a Mississipi gas chamber
in 1987”, Clive?
Then there is this classic: “Johnson's new counsel contend that the admission
of this statement was obviously prejudicial.”
Well, yes, if you tell the police where you hid the murder weapon, that might
just be prejudicial to a verdict of not guilty.
Now that we have established the veracity of Clive Stafford Smith - not for the
first time on this site - let us return to Carty. The documentary maker Steve
Humphries has dug up or been given access to a lot of footage, including crime
scene photographs of Joana Rodriguez, the woman Carty smothered with a plastic
bag in the trunk of her car. The fact that Houston Police gave him free access
to so much material speaks volumes for their belief in Carty's guilt. They are
saying in effect, this is an open and shut case; we have nothing to hide.
Amusingly, Clive Stafford Smith likens the death penalty applied to convicted
murderers to the same applied to those convicted of witchcraft in a bygone age.
What he seems to forget is that murderers are real; witches are not.
For those who are not au fait with this case or who want a recap, check out
this article and this one, and most important, the findings of fact by the
appellate courts. They refute all the nonsense and special pleading in this
documentary which Steve Humphries has overlooked or glossed over, for whatever
reason, like the oft' repeated claim that Carty's original lawyer is to blame
for not informing the British consulate, the embassy or the Queen herself that
one of her loyal subjects had been arrested on a murder charge and was in
desperate need of a get out of jail free card. Carty lied to Jerry Guerinot,
telling him she was an American citizen.
There is also a lot of guff about Carty entering into a number of abusive
relationships, including with a drug dealer, and how she risked life and limb
working undercover for the DEA. All lies.
Humphries concludes that her trial was a fiasco and that this poor woman
deserves our sympathy. He does make one good point, that is that if Carty is
guilty - if? - then what she did is crazy, or words to that effect, and by
implication she should not have been tried.
This claim has some merit, unfortunately though, Carty did not elect to run an
insanity defence, so it is too late to go back for a 2nd bite of the cherry.
Will she be executed, and does she deserve it?
Certainly there are far worse people in line for lethal injection in Texas, but
if ever a woman deserved to die for one murder, then that woman is Linda Anita
Carty. Don't shed any tears for her; there are many, far more tragic cases on
death row all over America, and unlike Carty, a few of them might just be
innocent.
(source: Alexander Baron; This opinion article was written by an independent
writer)
ARIZONA:
Court considers setting executions of 2 Arizona inmates
The Arizona Supreme Court will consider clearing the way for 2 Arizona inmates
to be executed.
The court could issue execution warrants Tuesday for Robert Henry Moormann and
Robert Charles Towery.
If their execution warrants are approved, the 2 could be put to death sometime
in the next two months in Florence.
Moormann was convicted of killing and dismembering his adoptive mother in
Florence while on a prison release in 1984.
Towery was convicted of killing a man while robbing his home in 1991.
The last inmate to be executed in Arizona was Thomas Paul West, who was put to
death July 19 for the beating death of another man in a 1987 robbery.
(source: Associated Press)
GEORGIA:
Lee Davis: Georgia's Requirement of Proof of Mental Retardation Beyond A
Reasonable Doubt Constitutional
On Nov. 22, the Eleventh Circuit held that Georgia’s requirement that criminal
defendants prove their mental retardation beyond a reasonable doubt
constitutional in Hill v. Humphrey.
Georgia was the first state to enact a prohibition against the execution of the
mentally retarded. Years later, and after a national consensus adopting this
policy was formed, the United States Supreme Court held in Atkins v. Virginia
that imposing the death penalty on the mentally retarded is unconstitutional in
violation of the 8th amendment.
In Hill, the sole question before the en banc Court was “whether the Georgia
Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt
standard does not violate the Eighth Amendment— is contrary to clearly
established federal law, as announced in Atkins.” As noted above, the Eleventh
Circuit held that it was not.
Atkins appears to be straightforward—the government can’t execute the mentally
retarded. However, the Supreme Court did not provide guidelines for how to
determine who is mentally retarded nor did it address how to allocate the
burden of proving mental retardation. The Eleventh Circuit in Hill relied
primarily on the fact that the Supreme Court left these decisions to the
states.
The Eleventh Circuit determined that the state standards regarding mental
retardation that Georgia did adopt are within reason. Georgia’s definition of
“mentally retarded” means (1) having “significantly sub average general
intellectual functioning,” (2) “resulting in or associated with impairments in
adaptive behavior,” and (3) “which manifested during the developmental period.”
The court opined that Georgia’s definition essentially tracks the AARM and APA
definitions of mentally retarded, which were mentioned in Atkins.
The court then noted that Georgia’s reasonable doubt standard, to be ruled
unconstitutional, would have had to have been contrary to clearly established
federal law. The court noted that this is a difficult requirement to meet
“because the purpose of AEDPA is to ensure that federal habeas relief functions
as a ‘guard against extreme malfunctions in the state criminal justice
systems,’ and not as a means of error correction.” The majority did not address
the merits of the beyond-a-reasonable-doubt standard at any length, only noting
that it was not discussed in Atkins.
Finally, the court noted that Georgia has sufficient procedural protections in
place by allowing a criminal defendant to assert mental retardation and
allowing the jury to find the defendant guilty, but mentally retarded.
Justices Martin, Barkett, Marcus, and Wilson dissented. Unlike the majority,
the dissent primarily focused on this burden of proof itself and the effects of
imposing such a high burden. The dissent opined that the effect of the
beyond-a-reasonable-doubt standard would be contrary to the purpose of the
Supreme Court’s decision in Atkins—that Georgia’s beyond-a-reasonable-doubt
standard would result in the execution of the mentally retarded.
(source: Lee Davis is a Chattanooga attorney; The Chattanoogan)
OREGON:
Death penalty opponents praise Oregon governor's moratorium
Catholic and other opponents of the death penalty praised Oregon Gov. John
Kitzhaber for placing a moratorium on the use of the death penalty for the rest
of his term.
"Those of us who respect the dignity of human life from conception to natural
death applaud this decision," said Portland Archbishop John G. Vlazny.
"This is what we have been praying for and asking for," said Ron Steiner, a
member of Queen of Peace Parish in Salem and an organizer for Oregonians for
Alternatives to the Death Penalty.
Kitzhaber announced his decision Nov. 22, saying he regretted allowing two men
to be executed during his first time in office in the 1990s. A Democrat, he was
out of political life for eight years before being elected again in November
2010. His new term began in January and ends in January 2015.
Having received letters and petitions from Oregon Catholic leaders and other
foes of capital punishment, the governor said he is morally opposed to the
practice and supports life without parole as the most serious sanction for
aggravated murder.
With the moratorium in place, Oregon joins 16 other states and the District of
Columbia that do not have the death penalty. Of those 16, Illinois is the most
recent one to abolish it, in 2011.
His decision halts for now the planned execution of double-murderer Gary
Haugen, who was set to die by lethal injection Dec. 6.
Haugen, who had sought his own death, is one of 37 men on Oregon's death row.
All now have at least a temporary reprieve. Kitzhaber, his voice trembling,
sounded as if he wished he had established the ban 15 years ago, before the
executions of Douglas Wright and Harry Moore in 1996 and 1997. Like Haugen, the
two men refused to continue legal appeals.
"I do not believe those executions made us safer," Kitzhaber said during a news
conference. "Certainly I don't believe they made us nobler as a society. And I
simply cannot participate once again in something I believe to be morally
wrong."
Kitzhaber, made it clear he was not commuting Haugen's sentence and has no
compassion for killers. He called Oregon's death penalty system "broken" and an
"expensive and unworkable system that fails to meet basic standards of
justice."
In a statement parallel to a letter sent to him in November by 1,000 death
penalty opponents, the governor said, "I do not believe for a moment that the
voters intended to create a system in which those condemned to death could
determine whether that sentence would be carried out."
Backers of the death penalty criticized Kitzhaber for thwarting the will of
voters. Josh Marquis, Clatsop County district attorney, called the action
"arrogant and presumptuous."
Haugen was serving a life sentence for bludgeoning his former girlfriend's
mother, Mary Archer, when he stabbed fellow inmate David Polin 84 times in
2003. It was for that second murder that he received a death sentence.
Kitzhaber's voice halted when he said he had spoken to victims' families and
knows his action will delay closure for them.
Calling for a statewide conversation about the death penalty, Kitzhaber said he
will support any ballot measure that comes forward to make it illegal.
Oregon's death penalty, part of the state constitution, can only be repealed by
a vote of the people. Oregonians for Alternatives to the Death Penalty, a
coalition that includes Catholic officials, will organize members to lobby
legislators about referring a ballot measure for the next election.
"We can be confident that we are on the right side of this question, and that
Oregonians will respond as we present them with more cost-effective,
restorative and humane ways to respond to violent crime," says coalition
organizer David McNeil.
The Catholic Church long taught that capital punishment was allowable as a
regrettable last resort if safety could be ensured in no other way. But as Pope
John Paul II taught in "Evangelium Vitae," a 1995 encyclical on the sanctity of
life, modern methods of incarceration have made the death penalty unnecessary
in almost all cases.
In a written statement, Steiner of Oregonians for Alternatives to the Death
Penalty said the governor's action will help an ongoing effort to educate the
public.
"It is our contention that when all the facts are known, it is difficult to
support a death penalty," Steiner wrote.
Meanwhile, supporters of the death penalty planned to defend it.
"This will make passion rise on both sides," said Father Tim Mockaitis,
associate director of the Archdiocese of Portland's Office for Life, Justice
and Peace. Saying he was "pleased and surprised" at the Nov. 22 announcement,
Father Mockaitis noted that Kitzhaber's statement was about morals, not legal
issues.
(source: National Catholic Reporter)
*******************
Oregon’s death penalty cop-out
The latest death penalty drama is playing out in Oregon. On Nov. 22, Gov. John
Kitzhaber (D) granted convicted killer Gary Haugen an indefinite reprieve from
his scheduled Dec. 6 execution. Kitzhaber announced that he would not authorize
any executions as long as he is in office. His term expires in 2015.
Fighting back tears, Kitzhaber voiced regrets for allowing 2 executions during
a previous stint as governor. “I simply cannot participate once again in
something that I believe to be morally wrong,” he said.
An Amnesty International official hailed Kitzhaber’s “principled stand.”
Oregon’s chapter of the American Civil Liberties Union applauded the
“courageous” action. A New York Times editorial praised the governor’s “firm
moral stand.” Opposition came from prosecutors as well as the Portland
newspaper the Oregonian, which questioned Kitzhaber’s claim that Oregon’s
death penalty system is “broken,” “inequitable” and “compromised.”
Haugen himself has weighed in, albeit with the coherence and consistency that
you might expect from someone awaiting execution for murdering a fellow prison
inmate.
Haugen had “volunteered” to die by waiving his appeals — his way of protesting
the same alleged flaws in the death penalty that Kitzhaber is protesting by
sparing him. At first, Haugen praised Kitzhaber; then he changed his mind and
told the Salem newspaper the Statesman Journal that the governor’s decision was
“a coward’s move.”
I agree with Haugen’s revised view — though for different reasons, I’m sure.
Kitzhaber’s gesture is a cop-out, and illogical to boot.
If the death penalty is “morally wrong,” as Kitzhaber says, and if Haugen’s
death sentence is the product of a “broken” system, then the thing to do is
permanently commute that sentence to life without parole, not offer a reprieve
that the next governor might undo. There is no reason to prolong the
uncertainty for the prisoners on death row or for their victims’ families.
In fact, why not commute the sentences of all 37 death-row inmates in Oregon?
The state constitution gives Kitzhaber that power. One predecessor, Robert D.
Holmes, commuted all three death sentences handed down during his tenure from
1957 to 1959. Several governors in other states have done the same.
Kitzhaber said he rejected that option “because the policy of this state on
capital punishment is not mine alone to decide. It is a matter for all
Oregonians to decide.”
But Oregon’s “policy” on capital punishment includes the constitutional
provisions that give governors absolute power to reverse death sentences.
Exercising this counter-majoritarian authority would have implemented state
policy, not thwarted it.
Kitzhaber said his purpose was to prod the state legislature into a “long
overdue reevaluation” of the death penalty. Well and good. But if capital
punishment is “morally wrong,” as Kitzhaber says, then what’s the point of
reforming it?
Kitzhaber’s main criticism of the Oregon death penalty was that “the only
factor that determines whether someone sentenced to death in Oregon is actually
executed is that they volunteer.”
It’s true: Both men put to death in the state over the past quarter-century
had waived their appeals. For everyone still left on death row, post-conviction
litigation drags on. That’s how their lawyers keep them alive.
But this is a strange complaint for a death penalty opponent. If the
legislature passes a bill that speeds up executions by limiting due process,
will Kitzhaber sign it?
I respect moral opposition to the death penalty, just as I respect support for
it, or the view (which I hold) that the death penalty should be retained but
substantially reformed and limited.
What no one should respect, though, is a politician’s attempt to take all sides
of the issue while washing his hands of it.
Kitzhaber claims to heed both his conscience and the voice of the people. It
looks to me as though he is trying to get credit for moral courage without
alienating anyone politically. Given that most people don’t share his moral
opposition to the death penalty, this is not easily achieved.
Ostensibly brave but actually self-regarding and timid, Kitzhaber reminds me
of Maryland governor Martin O’Malley. O’Malley, too, has denounced the death
penalty and called, unsuccessfully, for its abolition — but he has declined to
back up his words by clearing Maryland’s five-man death row.
With enemies like these, the death penalty doesn’t need friends.
(source: Charles Lane, Editorial Writer; Lane is a Post editorial writer,
specializing in economic policy, financial issues and trade, and a contributor
to the PostPartisan blog. )
***************
2 Volunteers for Execution, 2 Governors Who Would Not Let Them Die
While abolitionists cheered the news that Oregon Gov. John Kitzhaber had
declared a moratorium on executions last week, the public reacted with
surprise. Oregon has the death penalty?
Indeed, only two Oregonians have been executed in the last 27 years. (Texas
killed 2 in the last month alone.) But Gary Haugen, 49, was scheduled to die on
Dec. 6 -- until Democratic Gov. Kitzhaber decided that 2 was enough. "I refuse
to be part of this compromised and inequitable system any longer," he declared,
calling the system "broken."
Good for the governor. The former emergency room physician saved a life and
laid the groundwork for Oregon to become the seventeenth state to abolish
capital punishment.
Still, why would the governor choose Gary Haugen to make the case for a
moratorium? Haugen is not, after all, the sort to attract much sympathy.
Unlike Anthony Porter, an innocent man whose brush with execution inspired
Illinois Gov. George Ryan's moratorium a decade ago, Haugen is guilty as sin.
He raped and murdered the mother of his ex-girlfriend in 1981. 12 years later,
he brutally killed a fellow prisoner, the type of crime death penalty
proponents use to justify society's ultimate punishment. (Funny how the
law-and-order crowd cares deeply about the safety of prisoners.) A shrink
concluded that Haugen is delusional and suffers from uncontrolled seizures and
bouts of rage, making him about as endearing as a rabid dog.
But the kicker is that Haugen had let the governor off the hook. Known in death
penalty circles as a "volunteer," Haugen had waived his appeals and said he was
ready to die. He opposed the death penalty, but was tired of the endless legal
bickering and unsuitable living conditions, especially the fatty food and
"mind-numbing" boredom. "It kills your spirit," he complained.
Haugen was the 3rd volunteer this year. (The others, condemned in Alabama and
South Carolina, quickly got their wish.) Yet Gov. Kitzhaber, who had presided
over 2 previous executions of volunteers, picked Haugen to live and called on
the Oregon legislature to consider alternatives to capital punishment.
In musing about Haugen as an improbable catalyst for change, I was reminded of
a similar situation here in Illinois. In 2003, while Republican Gov. Ryan
contemplated the fate of the 167 prisoners on death row, one case particularly
stood out. It was personal for the governor.
A lowlife named Danny Edwards had kidnapped a close friend of the Ryan family,
businessman Stephen Small, and buried him alive until Small's loved ones could
deliver a ransom. The air holes failed, Small suffocated, and Edwards was
caught. He landed on death row.
On Gov. Ryan's last week in office, after heated debate over how many death row
inmates should receive clemency, he commuted everyone's sentences to life in
prison or less. The governor made his announcement at Northwestern University,
and afterward I asked him if he'd struggled over sparing Danny Edwards.
"It was a bitter pill," the governor nodded, and not only because Edwards'
murder victim had been the Ryan's neighbor and babysitter. "Danny wrote me a
while back saying he wanted to die," Ryan explained. "He begged me to allow his
execution to go forward." The governor simply could have removed Edwards' name
from the commutation list, an option endorsed by Ryan's wife. "But it would
have been wrong," he said.
The reason: "I concluded that the system was completely broken, so it wouldn't
have been fair to choose between who lived and who died. Especially for
personal reasons." Thus, Edwards -- a volunteer for death -- lived to become
part of a seminal moment in the history of capital punishment.
Like Gary Haugen, Danny Edwards had done everything possible to challenge the
Illinois governor's moral stance, and the governor did what was right -- in
spite of him.
I've read that Oregon's Gov. Kitzhaber has come under fire for his decision.
That is as troubling as it is expected. Our country cries out for moral
leadership, yet we trash officials with a moral vision that is not predictably
popular.
Few would have cared if Gary Haugen died next week, including Gary Haugen. He
would have been briefly known as the first person to be executed in Oregon
since 1996, and the last person to be executed in the U. S. in 2011.
Now he will be briefly known as the killer who tested the moral courage of an
obscure governor -- who will be long remembered for acing the test.
(source: Huffington Post; David Protess.President, Chicago Innocence Project)
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