Aug. 20
TEXAS:
Media Advisory: John L. Balentine scheduled for execution
Pursuant to a court order by the 320th District Court of Potter County, Texas,
John Lezell Balentine is scheduled for execution after 6 p.m. on Wednesday,
August 22, 2012.
On April 16, 1999, a Potter County jury convicted Balentine of capital murder
for killing 17-year-old Mark Caylor, Jr., and 2 15-year-old boys, Kai Geyer and
Steven Brady Watson.
FACTS OF THE CASE
The U.S. District Court for the Northern District of Texas described the
murders of Mark Caylor, Jr., Kai Geyer, and Steven Brady Watson as follows:
At 2:30 a.m., on January 21, 1998, Officer Timothy Hardin of the Amarillo
Police Department responded to a call that shots had been fired in an Amarillo,
Texas, neighborhood. While investigating the call, he noticed [Balentine]
walking from the area where the shots had been fired. Believing [Balentine] to
be acting in a suspicious manner, Officer Hardin conducted a Terry stop. See
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). [Balentine]
gave the officer incorrect information regarding his identity and address. A
subsequent frisk of [Balentine's] person revealed a .32 caliber bullet in his
possession. However, no weapon was found and [Balentine] was not taken into
custody, but was eventually released. Later that morning, 3 young men were
discovered murdered in that same neighborhood, and in a house where [Balentine]
had resided until a few weeks before the incident when he broke up with Misty
Caylor, his girlfriend who lived there. Each of the young men had been shot in
the head with a .32 caliber bullet while they slept. One of the murder victims
was Mark Caylor, who had threatened [Balentine] because of [his] treatment of
Misty Caylor, Mark's sister. The investigation focused on [Balentine] and an
arrest warrant was issued. [Balentine] left the Amarillo area shortly after the
murders, but was later arrested in Houston, Texas. After his arrest in Houston,
[Balentine] confessed he had committed these crimes.
PROCEDURAL HISTORY
On April 16, 1998, a Potter County jury found Balentine guilty of capital
murder as charged in the indictment.
On April 19, 1998, after the jury recommended capital punishment, the 320th
Judicial District Court of Potter County, Texas sentenced Balentine to death by
lethal injection.
On April 3, 2002, the Texas Court of Criminal Appeals rejected Balentine's
appeal and affirmed his conviction and sentence.
On January 22, 2001, Balentine sought to appeal his conviction and sentence by
seeking an application for a state writ of habeas corpus raising 21 grounds for
relief. On December 4, 2002, the Texas Court of Criminal Appeals denied
Balentine's application based on the findings and conclusion of the habeas
trial court.
On December 1, 2003, Balentine petitioned for federal habeas relief from his
conviction and sentence in the U.S. District Court for the Northern District of
Texas, Amarillo Division.
On August 19, 2004, Balentine amended his petition, limiting it to nine grounds
for relief, and filed a separate volume of exhibits.
On September 27, 2007, the U.S. Magistrate Judge for the Northern District of
Texas, Amarillo Division, issued a report and recommendation to deny habeas
relief after finding several of Balentine's claims to be defaulted and other
claims to lack merit.
On March 31, 2008, the U.S. District Court overruled Balentine's objections,
denied Balentine's motion for an evidentiary hearing, adopted the U.S.
Magistrate Judge's findings and conclusions, and denied habeas relief. By
separate order issued the same day, the U.S. District Court denied Balentine's
motion to stay proceedings and issued final judgment.
On May 29, 2008, the U.S. District Court adopted the recommendation of the U.S.
Magistrate Judge to grant Balentine a certificate of appealability (COA) on 2
claims, and to deny COA on all other grounds.
On April 13, 2009, the Fifth Circuit Court of Appeals affirmed the district
court's denial of habeas relief and rejected Balentine's request to expand the
issues on appeal.
On June 23, 2009, the 320th Judicial District Court of Potter County, Texas
ordered Balentine's execution for September 30, 2009.
On July 2, 2009, Balentine petitioned the U.S. Supreme Court for certiorari
review of the Fifth Circuit's decision denying relief and denying COA, and
applied for a stay of execution.
On July 16, 2009, Balentine moved the Fifth Circuit for a stay of execution,
which was denied.
On August 21, 2009, Balentine filed a successive state habeas application
alleging ineffective assistance of trial counsel for failure to investigate and
present mitigation evidence, and arguing that potential jurors were improperly
excluded in violation of Batson. Alternatively, Balentine moved to reopen his
initial state habeas proceedings for reconsideration of an ineffective
assistance claim. Balentine also moved for a stay of execution.
On September 22, 2009, the Texas Court of Criminal Appeals dismissed
Balentine's successive habeas application as an abuse of the writ, declined to
reopen the initial writ proceedings, and denied a stay of execution.
On September 23, 2009, Balentine moved the U.S. District Court to reopen the
final judgment pursuant to Fed. R. Civ. Proc. 60(b)(6) in order to reconsider
its procedural default ruling.
On September 28, 2009, Balentine petitioned the U.S. Supreme Court for
certiorari review of the order of the Texas Court of Criminal Appeals
dismissing the Batson claim in his successive state habeas application, and
moved for a stay of execution. On the same day, the U.S. District Court denied
Balentine's motion for Fed. R. Civ. P. 60(b)(6) relief, but granted Balentine a
COA to appeal the issue.
On September 29, 2008, Balentine appealed the denial of Rule 60(b)(6) relief
and moved to stay his impending September 30th execution date. The Fifth
Circuit granted a stay of execution.
On October 20, 2009, the Fifth Circuit heard oral argument in Dallas on
Balentine's Rule 60(b)(6) appeal. On the same day, the U.S. Supreme Court
denied certiorari review of the Fifth Circuit's April 2009 decision affirming
the denial of habeas relief and denying Balentine a COA.
On November 02, 2009, the U.S. Supreme Court denied certiorari review of the
order of the Texas Court of Criminal Appeals dismissing Balentine's successive
habeas application.
On June 18, 2010, the Fifth Circuit determined that the dismissal of a
successive state habeas application constitutes a review of the merits and
reversed the U.S. District Court's order denying Rule 60(b)(6) relief.
However, on November 17, 2010, the Fifth Circuit granted a panel rehearing,
withdrew its prior opinion, and issued a new opinion affirming the denial of
Rule 60(b) relief. The Fifth Circuit also lifted the order staying Balentine's
execution.
On December 29, 2010, the Fifth Circuit denied Balentine's motion for panel and
en banc rehearing, and issued mandate.
On March 25, 2011, Balentine petitioned the U.S. Supreme Court for certiorari
review of his Rule 60(b) appeal.
On March 31, 2011, the Honorable Don Emerson, presiding judge of the 320th
District Court of Potter County, Texas, ordered that Balentine be executed on
Wednesday, June 15, 2011.
On April 7, 2011, Balentine moved the Fifth Circuit for a stay of execution,
which was denied.
On June 6, 2011, the U.S. Supreme Court granted certiorari review in Martinez
v. Ryan, 131 S. Ct. 2960, (U.S. June 6, 2011), to consider whether ineffective
assistance of 1st postconviction counsel might serve as cause to excuse the
default of ineffective-assistance-of-trial-counsel claims.
Relying on the certiorari grant in Martinez, on June 6, 2011, Balentine moved
the U.S. Supreme Court for leave to file an untimely petition for rehearing the
2009 denial of certiorari review on federal habeas, and applied for a stay of
execution.
On June 13, 2011, the U.S. Supreme Court denied certiorari review of
Balentine's Rule 60(b) appeal.
On June 13, 2011, Balentine filed a 3rd state habeas application in the
convicting court. The following day, the Texas Court of Criminal Appeals
dismissed Balentine???s second successive habeas application.
On June 14, 2011, Balentine petitioned the U.S. Supreme Court for certiorari
review of the Texas Court of Criminal Appeals's order of dismissal, and applied
for a stay of his impending June 15 execution.
On June 15, 2011, the U.S. Supreme Court denied Balentine's June 10th motion
for out-of-time rehearing and denied his application for stay of execution.
However, the high court granted a stay of Balentine's execution pending
consideration of the question presented in Martinez.
On March 20, 2012, the U.S. Supreme Court issued a decision in Martinez v.
Ryan, 132 S. Ct. 1309 (U.S. 2012), announcing a narrow exception to procedural
default in initial-review proceedings.
6 days later on March 26, 2012, the U.S. Supreme Court denied certiorari review
in Balentine's case, thus lifting the order staying his execution.
On April 13, 2012, the convicting court ordered Balentine be executed after
6:00 p.m. CST, on Wednesday, August 22, 2012.
On July 12, 2012, Balentine filed an opposed motion in the U.S. District Court
for the Northern District of Texas, Amarillo Division, seeking relief from
final judgment under Fed. R. Civ. P. 60(b)(6), contending that the holding in
Martinez excuses Balentine's procedural default.
On July 24, 2012, Balentine petitioned for a reprieve, for commutation of
sentence to a lesser penalty, and for a hearing from the Texas Board of Pardons
and Paroles.
On July 30, 2012, the U.S. Magistrate Judge issued a report and recommendation
to deny Balentine's Rule 60(b)(6) motion.
On August 6, 2012, Balentine filed an opposed motion in the U.S. District Court
seeking a stay of his August 22 execution.
On August 10, 2012, the U.S. District Court denied Balentine's request for a
stay but granted a motion for a certificate of appealability.
On August 13, 2012, Balentine filed notice appealing the U.S. District Court's
denial of Rule 60(b)(6) relief and an application for a stay of execution.
On August 17, 2012, the United States Court of Appeals for the Fifth Circuit
issued an unpublished opinion denying Balentine's motion for stay and affirming
the district court's denial of Rule 60(b)(6) relief.
On August 20, 2012, Balentine petitioned the United States Court of Appeals for
the Fifth Circuit for en banc reconsideration of the unpublished opinion
affirming the denial of Rule 60(b)(6) relief. Balentine has also moved for a
stay of execution.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from
being presented to a jury during the guilt-innocence phase of the trial.
However, once a defendant is found guilty, jurors are presented information
about the defendant's prior criminal conduct during the 2nd phase of the trial
- which is when they determine the defendant's punishment.
During the punishment phase of Balentine's capital murder trial, jurors learned
that in 1983, Balentine committed burglary and theft of property by breaking
into a high school JROTC building and stealing several rifles and military
fatigues. In December 1986, Balentine climbed through the roof, entered a
Walmart store, and attempted to steal a large quantity of firearms. Balentine
was convicted of burglary, criminal attempt, and theft of property arising over
the Walmart incident, and received a 5-year sentence in the Arkansas Department
of Corrections. In 1989, while Balentine was on parole, he committed robbery by
hitting a 14-year-old male on the head with a bottle, and taking his money and
cigarettes. Balentine's parole was revoked and he received an additional 5-year
prison sentence.
In November 1996, Balentine broke into the Newport, Arkansas, home of a female
co-worker, abducted her, and forced her into the backseat of her 2-door car.
The woman escaped when Balentine stopped at a convenience store to get
cigarettes. Throughout the ordeal, Balentine told his hostage that he was going
to tie her up, sexually assault her, and kill her.
Further testimony showed jurors that Balentine became uncooperative and
argumentative with Harris County sheriff's deputies in July 1998 while he was
awaiting transfer to Potter County on the capital murder charge. Balentine
knocked down a female deputy's hand and struck another officer in the mouth
with his right elbow, knocking that officer into a wall. Several deputies were
needed to restrain Balentine who kept resisting, kicking, and throwing punches.
MISCELLANEOUS----For additional information and statistics, please go to the
Texas Department of Criminal Justice website at www.tdcj.state.tx.us.
(source: Office of the Attorney General of Texas)
************************
Judge: Ready to Rule Against Swearingen----Transcripts aren't yet in, but judge
has decided
Melissa Trotter was found dead in the Sam Houston National Forest on Jan. 2,
1999.Although attorneys for death row inmate Larry Swearingen have not yet seen
official transcripts from an evidentiary hearing ordered by the Court of
Criminal Appeals, Montgomery County prosecutors say they've gotten word from
trial Judge Fred Edwards that he intends to side with them and sign a ruling
that would deny Swearingen's request for a new trial.
The nod from Edwards came during an in-chambers meeting held while Swearingen's
lead attorney, James Rytting, was out of the country, Rytting said. Edwards'
decision to proceed with a ruling without first having seen the final record,
and without having read each side's proposed findings of fact and conclusions
of law, culled from detailed scientific testimony heard over a period of 2
weeks earlier this year - legal briefs that both parties are required by law to
produce - contravenes the seriousness of the proceedings, he said.
At issue is whether recently discovered forensic evidence - specifically,
histological samples of the victim's heart, lungs, and vasculature, harvested
at autopsy - can prove that Swearingen is innocent of the kidnapping and murder
of 19-year-old Melissa Trotter.
Trotter disappeared on Dec. 8, 1998, during finals week at Montgomery College,
where she was a student. That day, she attended a science class review and did
some work on a college computer. And then she disappeared. 3 days later,
Swearingen was picked up on outstanding warrants and jailed; he's been behind
bars ever since. Although a portion of the Sam Houston National Forest where he
body was ultimately discovered had been searched multiple times, Trotter's body
was not found there until Jan. 2, 1999, lying on the forest floor, with a
scattering of leaf detritus across her front, not far from a recently cleaned
deer carcass. Swearingen was an acquaintance of Trotter's and had been seen
talking with her twice in the days just before she disappeared, including on
Dec. 8 at the college. To the state, it was clear that Swearingen, then a
27-year-old married man with two small children and a history of run-ins with
the local law, was guilty of the crime.
But medical experts from across the state who have reviewed the case now say
that the histological samples retained at autopsy, which went unexamined until
2009, reveal well-preserved tissue that is incompatible with what would be
found in a body that had been decomposing for 25 days. The new evidence
prompted the CCA to stay Swearingen's August 2011 execution, sending the case
back to Edwards for further review.
The 2-week evidentiary hearing began in February (a bit of preview of that is
here and here), and Swearingen called to testify several of the state's best
known medical examiners - Galveston's Stephen Pustilnik, Tarrant County's Lloyd
White, and Harris County's Luis Arturo Sanchez - each of whom agreed that the
tissue samples do not comport with the 25-day "post-mortem interval."
Prosecutors offered testimony from Werner Spitz, the octogenarian medical
examiner who has been involved in a number of high-profile cases over the
years, from investigating the John F. Kennedy assassination to testifying for
the state during last year's trial in Florida of Casey Anthony, and whose
conclusions in recent years ‐ including in the Anthony case - have
occasionally been called into question after he has reportedly appeared at
times to be confused while testifying. The state also called another celebrity
scientist, entomologist Neal Haskell - not only did Haskell testify for the
state at Anthony's trial, but he is also one of the inspirations for the
television franchise CSI - who said that the bug evidence on Trotter was
consistent with her having been dead since disappearance.
The conclusions of each side were, as expected, attacked vigorously by opposing
counsel. The state says that while histology may be good for "disease
recognition," there is no literature that supports the use of histological
samples in determining time of death. The state also questions whether the
samples that the defense has produced actually came from Trotter - prosecutor
Warren Diepraam said that DNA testing was not possible on some samples and that
one sample that was tested revealed male DNA; moreover, he said that there are
gaps in the chain-of-custody for the samples, making their use as evidence
questionable at best. Rytting says the state's problem, in part, is that it is
acting as though histology can be used as a "fine-toothed comb to distinguish
discrete dates," when in fact what it does is "establish a range and excludes"
dates of death, as it has done in this case. Rytting says that histology is key
to forensic pathology and to suggest that there is no literature to back up its
use in determining post-mortem interval is ridiculous. Moreover, he says that
under cross examination, Haskell admitted that he was basing his conclusions
about bug activity on and around Trotter's body based on photos of the scene
and not based on actual bug evidence.
As of this posting, Edwards had not yet signed off on the state's findings and
conclusions, but Diepraam said that the state has argued that the judge should
find not only that "there is no scientific basis for the defense's conclusions"
about Trotter's death, but also that "entomology and taphonomy" - the study of
how organisms become fossilized - are the most reliable sciences for
determining how long a person has been dead. "We believe that's what [Edwards]
is going to find," Diepraam said. "The defense is using junk science not
supported by anybody; ours is supported by decades and hundreds of years of
research."
(source: Austin Chronicle)
GEORGIA:
Ga. death penalty bid falls apart----Feds spend a bundle trying to execute
killer serving life in prison
The Justice Department doesn't often seek the death penalty, but this case
appeared to be as close to a slam dunk as a prosecutor could get.
Brian Richardson was already serving the rest of his life in prison for armed
robberies. Now he had methodically killed his cellmate at the U.S. Penitentiary
in Atlanta. After repeatedly stabbing and then strangling the 60-year-old man,
Richardson decided to shave before alerting guards.
But the government didn't get the death penalty for Brian Richardson. His jury
could not reach a unanimous verdict so, by law, he received life without
parole.
In the meantime, Richardson's case required more than 20 lawyers and consumed
thousands of hours of their time. It cost hundreds of thousands of dollars in
fees from expert witnesses, some who collectively cost the government $1,900 an
hour but were never allowed to testify. And it derailed the careers of two
federal prosecutors --- one accused of defying a court order, the other caught
making outrageous comments to a snitch on a recorded phone call.
"This was a colossal waste of taxpayer money," Brian Mendelsohn, one of
Richardson's lawyers, said. "Brian was willing to plead guilty in exchange for
a life sentence from day one. This entire episode could have been avoided."
U.S. Attorney Sally Yates said she stands by the Justice Department's decision,
which underwent extensive review and was signed off by two attorneys general,
and she holds firmly to the belief that Richardson will kill again. "I don't
have any trepidation or second thoughts as to whether it was appropriate to
seek death in this case," she said.
The 4-year prosecution culminated in a nine-week jury trial this spring. Yates
declined to provide records detailing the cost of the prosecution.
But among the costs to taxpayers was more than $150,000 billed by mental health
experts who planned to testify against Richardson but were prohibited from
doing so. U.S. District Judge Clarence Cooper barred the testimony after
finding prosecutors misled him as to how the government's experts would conduct
Richardson's evaluation.
The prosecutors no longer work for the U.S. Attorney's Office in Atlanta and
are being investigated by the Justice Department's Office of Professional
Responsibility.
Yates admits mistakes were made. But "we don't believe that any of our
prosecutors intended to mislead the court," she said.
'I'm gonna kill somebody'
Court records show 8 prosecutors spent time on the case. The U.S. Attorney's
Office flew in victims of crimes committed by Richardson years ago to testify
at trial. And it helped get reduced sentences for a number of inmates who
cooperated with the prosecution and testified during the trial's penalty phase.
The Federal Defender Program also devoted enormous resources to the case. It
assigned 4 attorneys and 2 investigators to Richardson's defense. It spent
almost $200,000 for its experts and expenses.
In addition, 20 private attorneys were appointed --- and paid $125 an hour ---
to represent inmates asked by prosecutors to testify against Richardson.
At the time of the July 2007 murder, Richardson, 49, had almost 50 years left
on a 65-year prison sentence. An Alabama native and former Marine, Richardson
has several striking tattoos, including a swastika, skulls and the initials CWA
("Cracker With Attitude").
Previously in lockup, Richardson splashed bleach in a guard's face and stabbed
other inmates. He was accused of talking a troubled inmate into committing
suicide.
Transferred to Atlanta because he'd recently attacked an inmate at a Florida
prison, Richardson was put in the same cell with a child molester. Once a
predator, Steven O'Bara had become easy prey.
In his confession, Richardson told FBI agents he killed O'Bara because he was a
pedophile. He said he stabbed O'Bara nine times with a shiv fashioned from a
fire extinguisher pin. He then choked him by stepping on his throat before
wrapping a sock around O'Bara's neck and strangling him.
After he killed O'Bara, Richardson coldly promised to agents he would kill
again --- a fellow inmate or a guard. "Somebody else is gonna get skinned up
bad. First chance I get, I'm gonna kill somebody."
U.S. attorneys off case
When the death penalty notice was filed, Assistant U.S. Attorneys Todd Alley
and Matt Jackson cited Richardson's future dangerousness, present lack of
remorse and violent past.
By the time the case went to trial, Alley and Jackson were no longer on the
prosecution team.
Jackson was removed after Richardson's lawyers came across recorded
conversations he had with Jack Morris, an inmate serving time for dealing crack
cocaine and who was cooperating with the prosecution, discussing his expected
testimony. The calls were recorded as a matter of routine at the prison.
During one call, Morris, referring to one of Richardson's lawyers, said he'd
"murder her verbally" on the witness stand. To which Jackson replied, "Or you
can just jump over the podium and go over and stab her. We'll go light on you.
If you do kill her, a day of community service."
After the U.S. Attorney's Office found out about the phone calls, Jackson was
taken off the case and prosecutors decided not to use Morris as a witness. Even
so, Atlanta prosecutors recommended that 2 years be shaved off Morris' prison
sentence for his cooperation and, court records show, he received a 53-month
reduction.
Cooper, who presided over the case, disqualified Alley from the case after
finding he might have had a conflict of interest because an inmate was alleging
Richardson made threats to kill Alley. But Alley violated Cooper's order by
continuing to stay involved in the case, including giving Morris a cover story
to keep other inmates from knowing he was a government snitch, a defense motion
said.
Neither Jackson, now a federal prosecutor in Florida, nor Alley, now in private
practice in Atlanta, returned phone calls seeking comment.
Psychiatric testimony axed
Before trial, a key thrust of Richardson's defense was to present testimony
from experts who believed he suffered from schizophrenia, which could be
managed with proper medication.
To rebut that evidence, the U.S. Attorney's Office hired the Forensic Panel.
The practice was founded by forensic psychiatrist Michael Welner, who has
testified in numerous high-profile cases.
Welner pioneered a "peer review" process to safeguard the validity of his
findings, using up to three mental health experts in a case instead of one. In
Richardson's case, Welner contracted neuropsychologist Joel Morgan to interview
and evaluate Richardson. Welner also hired neuropsychologist Bernice Marcopulos
and psychiatrist Robert Trestman to review Morgan's work.
The review went forward, but Cooper, the trial judge, found prosecutors misled
him as to how Richardson's evaluation was to be conducted.
In an order, Cooper said he was led to believe Morgan would draft a report free
of input and influence from anyone else and that would be later reviewed by
Marcopulos and Trestman. Instead, Cooper found that Morgan consulted with
Marcopulos and Trestman before interviewing Richardson and then, after
conferring with Trestman, changed his initial diagnosis that Richardson
suffered from schizophrenia to an opinion that he suffered from antisocial
personality disorder.
This meant there was no longer a level playing field --- the government now had
3 mental health experts and the defense had 1, Cooper found.
The judge said that his only remedy, though "grave," was to exclude the
Forensic Panel experts from testifying.
This meant jurors never heard prosecution testimony that Richardson had an
antisocial personality disorder. This would have been akin to calling
Richardson a sociopath --- a person with no regard for right and wrong and who
has no remorse for his violent behavior. It also meant jurors did not hear from
Welner, who was going to testify Richardson was a future danger and could
commit violent acts again.
"It can be quite powerful testimony in a capital trial," said David Bruck, a
professor at Washington and Lee University School of Law. "It can give jurors
something to hang their hats on when deciding to impose a death sentence."
Yates said it would be "pure conjecture" as to whether the loss of the experts'
testimony would have made a difference at trial. She said her office's
conversations with jurors "indicated that those who voted in favor of life in
prison did so for reasons other than Richardson's mental health defense."
Welner said Morgan would have contradicted testimony that Richardson would be
an unremarkable inmate if given the right medication. The defense, Welner said,
fabricated a tale the jury could digest, and the Forensic Panel would have
shown Richardson's violent history was at odds with that narrative.
Welner was also prohibited from testifying as a prosecution witness that
Richardson was a future danger. Welner declined to go into the specifics of his
planned testimony, but he revealed the gist of it in a statement to The Atlanta
Journal-Constitution.
"That [the] defense endeavored to exclude my testimony without knowing what it
even would be speaks to how obvious and frightening Mr. Richardson's future
risk is . . . ," he wrote. "Really, now, would any participant in this case
whose relative is doing time want them anywhere near Brian Richardson?"
The Forensic Panel billed more than $150,000 to the government, Yates
estimated.
Welner charged $475 an hour for his time and for the time of each of his
peer-review panel experts. This meant that when Welner and his three experts
had a conference call, it cost $1,900 an hour, although Welner said this
happened on very few occasions and was a small percentage of the panel's
overall billings.
Court records show the Forensic Panel paid $275 an hour to Morgan and Trestman
and $250 an hour to Marcopulos for the work they did on the Richardson case.
Yates, the U.S. attorney, said she had been unaware of the $200-$225 difference
in how much the panel billed for its experts' work and how much the panel paid
them until it was disclosed during a hearing during the trial.
Welner said the difference helps pay expenses, the overhead at his New York
office, salaries of his staff and the teaching and research the Forensic Panel
provides at no profit. "Like any institution whose doctors practice under its
banner, whether it is a medical center, private hospital or others, doctors who
bill for their time are paid a portion of that fee and a portion of that fee
goes to the institution," he said.
Welner said his peer-review process safeguards objectivity, promotes diligence
and ensures adherence to updated standards. "There are many attorneys who
decide that the costs we save them in the quality of our work outpace the costs
of not using this practice," he said.
Jury split on death penalty
Mendelsohn, one of Richardson's defenders, said that before the trial his
office brought in people who would have qualified as jurors. They were told
about the murder, Richardson's violent past and the fact that O'Bara was a
child molester. Half voted for death and half for life, Mendelsohn said.
At the end of Richardson's trial, seven jurors voted for the death penalty and
5 for life, prosecutors and defense lawyers said.
The victim's brother, Scott O'Bara, supported the decision to seek death for
Richardson and said prosecutors "did a great job as far as I'm concerned."
"Unfortunately, for as long as he lives in prison he may have an opportunity to
kill again," O'Bara said. "For those jurors who voted against the death
penalty, or who were undecided, should it be a prison guard with a family just
doing their job, your vote against or your undecided vote will be something you
will have to live with for the rest of your life."
Stephanie Kearns, who heads the Federal Defender Program, called the outcome a
just result.
"Brian Richardson was a very sick man," she said. "His untreated mental illness
and the culture that had been engrained in him over the 2 decades he spent in
the most violent prison systems of this country, coalesced into the perfect
storm when he found himself locked in a cell with a convicted pedophile."
(source: Atlanta Journal-Constitution)
USA:
Insight: At Guantanamo tribunals, don't mention the "T" word
CIA agents have written books about it. Former President George W. Bush has
explained why he thought it was necessary and legal. Yet the al Qaeda suspects
who were subjected to so-called harsh interrogation techniques, and the lawyers
charged with defending them at the Guantanamo Bay military tribunals, are not
allowed to talk about the treatment they consider torture.
Defense attorneys say that and other Kafkaesque legal restrictions on what they
can discuss with their clients and raise in the courtroom undermine their
ability to mount a proper defense on charges that could lead to the death
penalty.
Those restrictions will be the focus of a pretrial hearing that convenes this
week.
Prosecutors say every utterance of the alleged al Qaeda murderers, and what
their lawyers in turn pass on to the court, must be strictly monitored
precisely because of the defendants' intimate personal knowledge of highly
classified CIA interrogation methods they endured in the agency's clandestine
overseas prisons.
Defense attorneys called that view extreme.
"Everything is presumptively top secret. So if my client had a tuna fish
sandwich for lunch, I couldn't tell you that," Cheryl Bormann, who represents
defendant Walid bin Attash, said after the May arraignment of the men charged
with plotting the 9/11 attacks on the World Trade Center.
At one point in the arraignment, another of bin Attash's attorneys, Air Force
Captain Michael Schwartz, was explaining why his client refused to cooperate.
Just when things got interesting, a security officer cut the audio feed to the
media and others observing the proceedings from behind a soundproof glass wall
with a 40-second audio delay.
"The reason for that is the torture that my client was subjected to by the men
and women wearing the big-boy pants down at the CIA, it makes it
impossible...," Schwartz said during the blocked portion of the arraignment,
according to a partial transcript later declassified.
Prosecutors have said in court filings that any revelations about the
defendants' interrogations could cause "exceptionally grave damage."
Civil libertarians argue that if those interrogation methods really are top
secret, then the CIA had no business revealing them to al Qaeda suspects.
Defense attorneys will challenge the secrecy rules at the pretrial hearing that
begins on Wednesday at the Guantanamo Bay U.S. Naval Base.
Prosecutors have about 75,000 pages of evidence to turn over to defense
attorneys in the 9/11 case, but they won't do it until the judge, Army Colonel
James Pohl, issues protective orders aimed at safeguarding the material.
BORN CLASSIFIED
Hundreds of men suspected of supporting al Qaeda or the Taliban were rounded up
in Afghanistan, Pakistan and elsewhere and shipped to Guantanamo in response to
the September 11 attacks. (Of the 779 men who have been held at Guantanamo
since the prison operation began in 2002, 168 remain.)
The CIA took custody of the "high-value" captives believed to have top-level
information that could help the U.S. and its allies prevent further attacks.
It held them incommunicado for three or four years and transferred them among
secret overseas prisons, questioning them with interrogation methods that
defense attorneys say amounted to torture and which the Obama administration
has since banned.
Some details of the program, including waterboarding, mock executions and sleep
deprivation, have already been disclosed by Bush and the CIA itself. Jose
Rodriguez, a former CIA official, recently defended them in news interviews to
promote his book, "Hard Measures: How Aggressive CIA Action After 9/11 Saved
American Lives."
Yet in both the 9/11 case and that of Abd al Rahim al Nashiri, who is accused
of sending suicide bombers to ram a boat full of explosives into the side of
the USS Cole off Yemen in 2000, the government presumes that every word spoken
by the defendants, in the past and in the future, is classified at the highest
level -- "Top Secret," with a "Sensitive Compartmented Information," which is
routinely shortened to TS/SCI.
The defendants' words are also "born classified," a status their lawyers said
has previously been used only to safeguard details about nuclear weapons. So
are all documents and legal motions related to their cases, which cannot be
made public unless they're cleared by a Department of Defense Security
Classification Review team.
How that team works is a secret.
"I've never seen them. I've never communicated (with them). No one has ever
been able to tell me that," said James Connell, a lawyer for 9/11 defendant Ali
Abdul Aziz Ali.
The Pentagon would say only that the review team includes both civilians and
uniformed military personnel and that it can take up to 15 business days to
make its decisions.
Proscribed topics include details of the defendants' capture, where they were
held and under what conditions, the names and descriptions of anyone who
transferred, detained or interrogated them and the methods used to get
information from them, according to the court documents.
Defense lawyers say the classification system used at Guantanamo violates
President Barack Obama's 2009 order that prohibits using secrecy labels to
conceal lawbreaking or prevent political embarrassment. They say it also
"eviscerates" the legal defense protections Congress set down in the law that
authorizes the Guantanamo tribunals.
The government's secrecy rules mean that every lawyer, paralegal and expert on
the prosecution and defense teams must undergo an extensive background check
and obtain a TS/SCI clearance. Once they get clearance, they are briefed on
what has to stay secret. The document that forms the basis of the presumptive
classification is itself secret.
"It is ridiculous," said Army Captain Jason Wright, one of the lawyers for
accused 9/11 mastermind Khalid Sheikh Mohammed. "The briefing is classified, so
I can't discuss what I can and cannot discuss."
Mohammed's lawyers have asked the UN special rapporteur for torture, Juan E.
Mendez, to investigate claims that their client was tortured. But they could
only share with Mendez the information that has been publicly declassified.
"We are prohibited from sharing any details of his mistreatment, even to the
special rapporteur," Wright said.
FORCED TO LEARN
The American Civil Liberties Union has filed a challenge arguing that the
government has no legal authority to classify information that it not only
disclosed to the defendants but forced them to learn.
"The question here is: Can the government subject people to torture and abuse
and then prevent them from talking about it?" said Hina Shamsi, director of the
ACLU's National Security Project.
The ACLU said the claim of broad authority to gag defendants infringes on the
American public's right to open trials and goes far beyond what the courts have
allowed, namely that censorship must be narrowly tailored and aimed at
protecting a compelling government interest.
"We don't think the government has any interest in classifying personal
observations about conduct banned by the president of the United States,"
Shamsi said.
"The commission certainly will not be seen as legitimate if the proceedings
revolve around judicially approved censorship of the defendants' accounts of
government misconduct."
Prosecutors acknowledged the public has a right to witness the proceedings, but
urged the judge not to substitute the ACLU's judgment on what should be
classified for that of intelligence professionals.
ATTORNEY-CLIENT CONVERSATIONS
Security rules restrict not only what can be made public but also what the
lawyers can talk about with their clients.
In December 2011 the officer then in charge of the Guantanamo detention
operation, Rear Admiral David Woods, issued orders forbidding defense lawyers
from discussing certain topics during client visits. Those included "historical
perspectives on jihadist activities." That apparently means the lawyers cannot
discuss part of the actual charges with their clients because the charges
specifically mention Osama bin Laden's 1996 "Declaration of Jihad Against the
Americans."
The defendants are alleged to be al Qaeda terrorists, but the order prohibits
their lawyers from talking to them about "groups engaged in terrorist
activities."
"It's sort of an illusory idea, which is that we are going to give you a lawyer
but you're not going to be able to talk about the central thing that is
important for you to talk about with a lawyer," said David Nevin, another of
Mohammed's attorneys.
The chief prosecutor, Brigadier General Mark Martins, disputed the defense
attorney's interpretation of Woods' order and said defense attorneys'
conversations with their clients are not restricted.
"They can talk to their clients about anything. What they can't do is take a
document that may have classified information related to sources and methods
and - unless it is cleared as disclosable to the client - they can't show them
that document."
Generally under U.S. law, communications between defendants and their lawyers
are confidential and cannot be used as evidence. Here again, the rules are
different at Guantanamo.
The military and civilian defense lawyers, who mostly live in the Washington
area, are not allowed to telephone their clients at Guantanamo and can
communicate with them only during visits or in writing.
The 9/11 defense lawyers have refused to send legal mail to their clients until
prison camp inspectors agree to stop reading it.
The review teams are made up of Pentagon lawyers, translators and former
intelligence officers - people from the same agencies that detained and
interrogated the defendants and are now prosecuting them.
The lawyers contend that submitting case-related documents for screening would
force them to illegally disclose trial strategy, violating the defendant's
right to a fair trial. They said it was also an ethical violation that could
put their law licenses in jeopardy.
As it turns out, not every word from the 9/11 defendants is treated as
confidential for long. In 2009 the defendants sent a note to the judge
proclaiming themselves "terrorists to the bone" and calling the charges against
them "badges of honor, which we carry with pride."
The note was rapidly cleared for public release and posted on a Pentagon
website. It immediately made headlines, leaving defense attorneys fuming that
potential evidence from their clients had been released to the public before
they knew of its existence.
(source: Reuters)
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