May 29
SOUTH DAKOTA:
SD High Court Hears Death Sentence Appeal
For the 2nd time, a convicted killer's death sentence is in front of South
Dakota's Supreme Court. Rodney Berget won an element of his 1st appeal to the
high court, but his attorney returns with arguments that the process and
procedures of his sentencing aren't fair.
Rodney Berget's attorney begins speaking to 5 justices on the bench in South
Dakota's Supreme Courtroom with an acknowledgement that the Court doesn't
embrace this appeal. Jeff Larson says he submitted petitions, briefs and a
request for oral arguments, which the high court denied. But statute says, when
the sentence is capital punishment, the parties shall have the right to present
oral argument.
"A motion to reconsider denial of oral argument was filed with the court.
Although we have never received a ruling on this, we did 2 days later receive a
letter from the clerk stating the request for oral argument had been granted,"
Larson says. "So I stand here before you today facing the dilemma of presenting
an oral argument you, as a Court, have already indicated you do not want to
hear."
Larson has been here representing Rodney Berget before. His earlier appearance
in front of the state Supreme Court resulted in the court siding with the state
on 11 of 12 issues. Berget's guilty plea to the murder of correctional officer
Ron Johnson during an escape attempt from the state penitentiary 3 years ago
stands. Aggravating factors exist that make the death penalty a legal
punishment in South Dakota.
But convicted killer Rodney Berget won on one issue. The high court said trial
Judge Bradley Zell should not have considered a psychiatric report in
determining punishment, so the Supreme Court ordered Zell to re-sentence Berget
without that piece of evidence. Zell did that, and he resentenced Rodney Berget
to death.
Now Attorney Jeff Larson argues that his client deserves a new sentencing from
a new judge for 3 primary reasons. Larson says the 1st is that the more recent
sentencing didn't allow Berget to offer evidence that could mitigate some of
the grave factors working against him. Larson says one is that Berget now has a
meaningful relationship with his son.
"Rodney Berget knew he had a son. He always assumed his son knew that Rodney
was his father and had stayed away because of Rodney's problems with the law,"
Larson says. "After these hearings became public, his son learned that Rodney
was his father, the 1st time he had learned that. His son's family sought us
out. There is now a relationship."
Larson says the lower court followed the Supreme Court's instructions and
didn't believe it could consider that new mitigating factor. Larson claims the
relationship speaks to Berget's character and intrinsic worth - and that it
indicates he could lead a constructive life in prison.
Assistant Attorney General Paul Swedlund says that isn't enough. He says Berget
knew of his son for more than 3 decades, and he can't sit on mitigating
evidence to bring it up later. Swedlund says Berget failed to follow a legal
path to incorporating the evidence of his familial ties.
"When his rehearing petition was denied, he did not tell this Court, 'I have
this evidence, and I need to put it in.' In being coy with the Court about what
his remand evidence was in his rehearing petition, he waived any further right
to present that evidence," Swedlund says.
Even if this was an oversight, Swedlund calls not acknowledging Berget's new
family relationship...harmless. He says it can't possibly outweigh the mountain
of aggravating evidence that is the foundation of Berget's sentence of death.
In another element, Attorney Jeff Larson says the statute the Supreme Court
cited for the resentencing doesn't apply, but Assistant Attorney General Paul
Swedlund says that doesn't really matter, because the Supreme Court - simply
because it is the top court - has inherent authority to direct lower bodies.
Rodney Berget's lawyer Jeff Larson has another primary argument for his client.
Larson says the re-sentencing violated Berget's rights. He says Judge Zell's
decision to resentence Berget without a hearing stripped him of his ability to
make a statement on his own behalf and to be present in person when a sentence
is rendered. Justice Steven Zinter questions Larson.
ZINTER: The court asked if you wanted any other hearings at the remand hearing,
and you didn't indicate you wanted to reallocute it.
LARSON: I think the question is, Do you want any other hearings about the
Supreme Court's directive? I think is what was said. I can tell you I don't
think I presumed that my client was going to be sentenced to death without
seeing the judge face-to-face.<>P> The state counters that point. Assistant
Attorney General Paul Swedlund cites the federal counterpart to state law.
"A defendant need only be present when his sentence is made more onerous or
when the entire sentence is set aside and the cause remanding for resentencing.
Now, Berget's sentence was certainly not made more onerous, and, as I've
discussed, what this court ordered - though it used the term resentencing - it
was more a remand for a redetermination of the sentence by the judge from the
point of error than a full evidentiary resentencing trial," Swedlund says.
In the final appeal element in front of South Dakota's highest court, Rodney
Berget's lawyer wants his client's case in the hands of a new trial judge.
Attorney Jeff Larson says it's unfair to put Judge Bradley Zell in a position
to hear 2 trials for separate defendants accused of the same crime when one
contests nothing and the other fights the state's arguments. He says the judge
either contradicts his own rulings or has to side with the state.
Justices on the Supreme Court listen and question that line of discussion, but
the Attorney General's office says the court already decided that issue when
they first heard the appeal in 2012 and sided against Rodney Berget.
Berget and Eric Robert both pleaded guilty in separate trials for the murder of
correctional officer Ron Johnson. Robert did not appeal his conviction or
sentence, and he was put to death by lethal injection in October of 2012.
South Dakota Attorney General Marty Jackley says the arguments Tuesday in front
of the Supreme Court have no connection to issues surrounding last month's
botched execution in Oklahoma.
"We are not yet to the stage where it's carrying out of the capital punishment,
which is really what was at issue in Oklahoma was not the conviction, not the
sentence, but [the] carrying out of the sentence. So at this stage here in the
Berget case, there's been a conviction," Jackley says. "There are still
questions and challenges associated with the sentence. Once the courts have
addressed those challenges, we would then go to that final stage, and that is
the carrying out of the sentence by the Department of Corrections."
Jackley says Rodney Berget's current appeal is specific to the procedure and
process of sentencing.
(source: South Dakota Public Broadcasting)
************************
Many reasons to end death penalty
The Argus Leader's opinion panel stories are always good to read for thoughtful
observations on a wide variety of news items. The panel's recent views on our
state's death penalty really made me think.
I personally believe that South Dakota should abolish the death penalty for a
number of reasons. The possibility of a death sentence does nothing to stop
really bad people from doing terrible things. The death penalty, with its many
and long appeals, costs state taxpayers much money that could better be spent
on other things. The death penalty goes against my religious beliefs of thou
shall not kill and let God judge people.
Let's abolish the South Dakota death penalty and keep really terrible criminals
locked up for life, with no hope of parole.
David J. Nickel---Spearfish
(source: Letter to the Editor, Argus Leader)
COLORADO:
Attorneys in Holmes Case to Discuss Jury Selection
Attorneys in the Colorado theater shooting case are back in court to discuss
the logistics of jury selection.
Thursday's hearing is set to focus on how prospective jurors should be
interviewed. The judge also planned to hear arguments on what jurors should be
asked in a written questionnaire, but he postponed that.
James Holmes pleaded not guilty by reason of insanity to charges of killing 12
people and injuring 70 in the July 2012 attack at a suburban Denver movie
theater. Prosecutors are seeking the death penalty.
Jury selection is scheduled to start in October, and the judge has said it
could take up to 3 months. About 5,000 potential jurors will get a summons, and
the judge expects 3,200 to 3,500 to respond.
(source: Associated Press)
ARIZONA----new execution date
Arizona sets execution date for convicted killer
A July 23 execution date has been set for an Arizona death row inmate convicted
in the killings of his estranged girlfriend and her father in Tucson nearly 25
years ago.
The Arizona Supreme Court on Wednesday set the execution date for 55-year-old
Joseph Rudolph Wood III.
Wood was sentenced to death for the August 1989 murders of Debra and Eugene
Dietz at the Tucson auto-body shop where they worked.
Appeals courts have upheld Wood's convictions and death sentence and the
Arizona Attorney General's Office says Wood has exhausted his appeals and has
no action pending in any court.
A defense lawyer for Wood is opposed to Arizona's intent to use midazolam and
hydromorphone in a 3-drug protocol, saying the drugs were problematic during
recent executions in other states.
**********************
Death penalty sought in Phoenix jail killing
Prosecutors are seeking the death penalty against a man accused of killing his
cellmate in a Maricopa County jail while he was incarcerated on another murder
charge.
The Maricopa County Attorney's Office says Andrew Ward, 27, should face the
death penalty in the April 2 death of cellmate Douglas Walker, 33, because Ward
carried out the killing with gratuitous violence and in an especially cruel
manner.
Investigators say Ward stabbed Walker, beat him and forced a plastic bag down
Walker's throat.
Prosecutors are also seeking the death penalty against Ward in the March 12
fatal stabbing of his 12-year-old half-brother.
Investigators say Ward explained his motive in his half-brother's death by
saying, "Honestly, I just felt like killing."
Ward has pleaded not guilty to charges in both cases.
(source for both: Associated Press)
*************************
Jodi Arias trial will not be aired live, plus details not revealed at trial
It has been over a year since Jodi Arias was found guilty in the 1st degree
with aggravating factors of cruelty for the brutal slaying of Travis Alexander.
Since then, the court of public opinion and the family of the victim Travis
Alexander have been waiting very patiently for justice to be served and for
Jodi to receive her sentence. A key question surrounding the trial and the many
delays of the Jodi Arias trial for sentencing has been the question of whether
or not the sentencing phase will be broadcasted live. Arizona Family reports on
May 27 that Judge Sherry Stephens presiding over the State of Arizona versus
Jodi Arias has ruled that the sentencing phase of the trial will not be aired
live or broadcasted live.
Judge Sherry Stephens has allowed the recording of the sentencing phase of the
Jodi Arias trial while in progress, but will only permit the airing of any
recordings after the sentencing verdict has been read according to Arizona
Family and the Chicago Tribune.The Chicago Tribune also suggests that there may
be a change to this decision by Judge Stephens, and that some broadcasts during
the sentencing phase may occur.
Judge Stephens has placed a caveat on that decision, saying if that ruling is
made in the future regarding broadcasting, there will be a 15 minute delay on
any broadcast events during the sentencing phase of the Jodi Arias trial. In
her ruling, Judge Stephens wrote: "Any violation of this court order will
result in immediate expulsion from the courtroom."
It was just over one year ago when a jury of 4 women and 8 men found Jodi Arias
guilty according to CBS. The jury was given multiple options to consider when
it came to determining the final decisions. First degree murder, 2nd degree
murder, manslaughter, and acquittal were the options presented to the jury in
the Jodi Arias trial for the murder of Travis Alexander.
As reported previously by the Toronto Relationships Examiner, that jury had no
difficulties determining the level of guilt for this now convicted felon. A
copy of the indictment papers that were used to arrest Jodi Arias on these
charges is included in the slideshow seen here.
It would be difficult based on that evidence alone to suggest that there was no
premeditation or cruelty in the act of the murder of Travis Alexander. The
State of Arizona has made their case very clear, and the jury of 4 women and 8
men also found Jodi guilty with aggravating factors of cruelty.
As is suggested in these indictment papers, Jodi Arias was plotting the murder
of Travis Alexander long before he ever found out about it. The night before
she killed him, she slept with him and took pictures of him, all the while
reportedly knowing what was about to happen to him, with Travis being none the
wiser.
The State of Arizona has accused Jodi of stealing a gun from her grandparent's
home, removing the plates on her rental car in order to avoid being caught, and
also turning off her phone while in the State of Arizona during the time of the
murder so that law enforcement could not place her in the state. The State has
also alleged that Jodi went to considerable lengths to cover up the crime.
As well, sources close to the victim of Travis Alexander know a lot about this
case that was not revealed during the Jodi Arias trial last Spring. Many people
know that Jodi Arias was not indicted on the charges of 1st degree murder for a
full month after the incident. The dates of the murder and the dates of the
indictment are shown very clearly here.
What many people do not know is that in the month that occurred between the
time when Jodi Arias murdered Travis and was charged is that she was planning
to flee the State and flee the charges. Not only was she planning to flee the
State, but her mother Sandra Arias was reportedly helping her to do so, by
allegedly planning and packing an alternative rental car for Jodi to flee in.
That would explain why Sandra Arias told CNN in 2013 why she was not surprised
about the charges for Jodi when they came down. Sandra Arias was also heavily
criticized during the trial last year for giggling during testimony with her
twin sister, and for other inappropriate acts of courtroom behavior.
In May 2013 Jodi Arias was found guilty of first degree murder and will be
sentenced to either life in prison without parole, life in prison with the
possibility of parole, or the death penalty. The jury in 2013 was deadlocked on
whether or not to sentence her to death. The jury at the time reported to HLN
that a key reason for the deadlock was the presence of mitigating factors.
Maria de la Rosa, key player for the defense team of Jodi Arias is the
mitigation specialist responsible for putting those factors together. She will
be a key player in the sentencing phase of the trial, and will once again
present mitigating factors to the jury in an attempt to save Jodi's life. She
has already been successful in deadlocking one jury.
Even so, she has been in some hot water herself since the May 2013 verdicts,
and that may be a setback for the defense when they present mitigating factors
at the next sentencing trial.
By all accounts every delay tactic known to the justice system has been used to
delay the sentencing phase of her 1st degree murder trial. There's been fake
Jodi Arias lawsuits, a long laundry list of motions filed by the defense in the
Maricopa County Justice records, and even some mitigation specialist drama.
Jodi Arias may have run out of delay tactics.
In the meantime, the family of Travis Alexander counts the days. They are
counting the days that she is in prison for the brutal murder of their beloved
brother, and they are counting the days until when she will be held
accountable. If she is sentenced to death, they will most likely be counting
down those days as well.
The question of whether or not cameras and broadcasting of the trial has been
said to be one of the last delays in the sentencing phase of the Jodi Arias
trial. Other matters will be heard at the next hearing on July 1, the
sentencing phase will begin on September 8. At this time, jury selection will
begin and the trial will resume and Jodi Arias will not be able to delay her
fate much longer.
(source: The Examiner)
USA:
Williams eligible for death penalty
A federal jury today begins the task of deciding whether to sentence a former
Hawaii soldier to death or life in prison without parole. Jurors last week
decided that Naeem Williams was eligible for the death penalty in the 1st
capital case in the history of Hawai`is statehood, after finding him guilty
last month in the 2005 beating death of his 5-year-old daughter Talia.
Hawaii's territorial government abolished capital punishment in 1957, meaning
the death penalty hasn't been an option in Hawaii since it became a state. But
Williams was tried in the federal system because the crime occurred on military
property. His attorneys argued he was ineligible for a death sentence because
of his low IQ.
Prosecutors said Talia's age and other factors made the killing heinous enough
to warrant the death penalty.
(source: Associated Press)
*********************
Alito's Statistics Lesson Misses the Mark in Death-Penalty Dissent, Experts Say
First, there was Justice Antonin Scalia's mistaken account of a prior
environmental ruling he wrote. Then there was Justice Elena Kagan's confusion
over where Jews first settled in America.
And now, according to several statistics experts, it appears that Justice
Samuel Alito could use some fact-checking too.
Justice Alito's forceful dissent in Tuesday's death penalty ruling contains
what statistician experts say are at least 2 mistakes - 1 of them having
significant bearing on the argument that he and 3 other colleagues who joined
him leveled against the majority.
Both apparent errors have to do with statistical tools for measuring the
accuracy of an IQ test, a central issue in a ruling that gave intellectually
disabled defendants greater protection from the death penalty.
A spokesperson for the Supreme Court declined to comment.
In his dissent, Justice Alito scolded the majority for what he claimed were
"factual mistakes" about how to apply a standard error of measurement, or SEM,
to IQ test scores.
Simply put, the SEM refers to the margin of error used to quantify the level of
certainty for any single IQ test. Because IQ measures are imprecise, we can't
be absolutely certain that any one given test is accurate. The SEM, then, is
our best guess of the probability that a person's test results match their true
IQ. The more confident we are in the reliability of a score, the lower the SEM.
Based on criteria used by medical professionals, the majority in its ruling
assumed that IQ tests have a +/- 5-point margin of error. In doing so, the
court held that a defendant must be allowed to introduce additional evidence
when their IQ scores are as high as 75.
In his dissent, Justice Alito argued that the 5-point standard is arbitrarily
high, noting that it's double the +/- 2.16 margin of error for the most recent
IQ test administered to Freddie Lee Hall, the convicted double-murderer who
brought the challenge against Florida's 70 IQ cutoff.
Such a standard, Justice Alito said, underestimates the accuracy of the tests,
leading to an overly cautious standard for assessing if a defendant is too
mentally disabled to be eligible for the death penalty.
"To blindly import a 5-point margin of error when we know as a matter of fact
that the relevant SEM is 2.16 amounts to requiring consideration of more than 2
SEMs - an approach that finds no support in Atkins [v. Virginia] or anywhere
else," he wrote.
Problem is, Justice "Alito was comparing apples and oranges in that instance,"
Dr. Marc J. Tasse, a former president of the American Association on
Intellectual and Developmental Disabilities, told Law Blog.
The 5-point standard adopted by the majority is a margin of error based on a
95% confidence level. That means if someone scores a 70, there's a 95%
probability that the defendant's true score is anywhere between 65 and 75.
The 2.16 margin of error that Justice Alito references corresponds to a 68%
confidence level. Again, that means that there's a 68% probability that Mr.
Hall's true score is within 2.16 points higher or lower than his obtained IQ
score.
Reaching a 95% confidence level with respect to Mr. Hall would require doubling
his margin of error to roughly 4.3 points, which is a lot closer to the 5-point
range that Justice Alito criticized.
That brings us to the 2nd, smaller apparent mistake in his opinion. Justice
Alito repeatedly refers to "the 66% confidence interval." That figure should be
68%, which is the widely accepted probability value for analyzing uncertainty
in a person's score, according to experts.
Justice Alito's 66% figure comes from a court brief that repeats what appears
to be a misprint in a recent edition of the AAIDD's intellectual disability
manual.
"I'm 99.99% sure that the 66% was a simple misprint," AAIDD President Dr. James
R. Thompson told Law Blog by email.
Both of Justice Alito's apparent errors were brought to Law Blog's attention by
Kevin McGrew, an IQ expert who is a visiting professor in educational
psychology at the University of Minnesota and who worked with the American
Psychological Association on a brief it filed with the court in the case.
(source: Wall Street Journal)
*****************
Supreme Court: An IQ Point or 2 Shouldn't Determine Who Lives and Who Dies
IQ tests are intrinsically imprecise. On one, Freddie Lee Hall scored 71. On
other tests, he's gotten various scores between 60 and 75.
The problem for Mr. Hall is that until today, scoring over 70 on even one IQ
test gave Florida the green light to execute him. That one time score of 71 put
Mr. Hall just over the line in the sand drawn by the state's legislature, after
the 2002 Supreme Court decision finding that it violates the Eighth Amendment
to kill people who are mentally disabled.
No one seems to dispute what the Florida Supreme Court wrote 15 years ago, that
"there is no doubt that [Mr. Hall] has serious mental difficulties, is probably
somewhat retarded, and certainly has learning difficulties and a speech
impediment."
And that's exactly the point - even if someone meets the other criteria for
mental disability, Florida was clinging to an unscientific and outmoded cut-off
number of 70 and using this erroneous indicator to draw a line between those
killed and those sent to prison for life.
This has happened often, not just to Mr. Hall.
One group of scholars determined that half of the defendants who lost mental
disability challenges to their death sentences in Florida had lost because of
the strict 70 IQ cut-off score. And a large minority of states also adopted
schemes under which the difference of one or two IQ points demarcated who could
be killed and who could not.
Now these states have to change their dubious and dangerous ways of determining
mental disability, thanks to yesterday's Supreme Court decision favoring
science over arbitrariness.
The strict IQ cut-off rests on the fiction that a score, whether it is 70 or
71, is the precise value of the person's intellectual functioning.
Psychiatrists and mental health professionals are crystal clear: an IQ score is
an approximation, and because of a host of factors that score must be
understood within a standard error of measurement, most commonly understood as
a range of plus and minus five points. In other words, we can be relatively
confident that a defendant whose IQ score is reported as 71 has a true IQ
between 66 and 76, not that his or her score was exactly 71.
The professional community of psychiatrists is unanimous that a strict 70 IQ
cut-off score will erroneously exclude individuals who qualify as
intellectually disabled. Given this "inherent imprecision," in the words of
Justice Anthony Kennedy, it is no longer constitutional to use the IQ cut-off
method to determine who will live and who will die. In rejecting Florida's
cut-off score of 70, the Court stressed repeatedly the importance of
consistency with the definitions of intellectual disability adopted and
understood by the "medical community" and "medical experts."
In the battle between expediency and science, this is a clear win for science.
While the Supreme Court's ruling today comes too late for the unknown number of
intellectually disabled death row inmates who already have been executed under
strict cut-off schemes, it takes a large step towards ensuring that the death
penalty is not used against people with intellectual disabilities, in Florida
and beyond.
(source: ACLU)
***************************
Effect of mental disability ruling on Alfonso Rodriguez death penalty case is
uncertain; U.S. Supreme Court Supreme Court rejected rigid IQ test standards
Alfonso Rodriguez once boasted of reading hundreds of books, but dropped out of
school at the age of 18 without graduating.
The man convicted of the 2003 kidnapping and murder of Dru Sjodin is mentally
retarded, according to his lawyers, and therefore should be spared the death
penalty.
But prosecutors argue that Rodriguez is not mentally disabled, and therefore
should be executed, as allowed under federal law.
The issue of mental disability and the death penalty resurfaced after a
decision Tuesday by the U.S. Supreme Court that rejected rigid IQ test
standards in determining whether to impose the death penalty.
Testing error presents an "unacceptable risk" of executing a mentally disabled
person, which would violate the Constitution, the justices decided in a 5-4
opinion.
Some states, including Florida, use a strict threshold, such as an intelligence
test score of 70 or above, to determine eligibility for capital punishment.
But the federal system under which Rodriguez was convicted and sentenced does
not use a rigid test, lawyers and experts said Wednesday.
"There's no bright-line test," said Keith Reisenauer, an assistant U.S.
attorney involved in Rodriguez's prosecution. "There's nothing like that."
Joseph Margulies, one of Rodriguez's defense lawyers, said he is aware of the
Supreme Court decision striking down rigid intelligence tests.
"I haven't had a chance to examine closely how it will intersect with our
litigation," he said, adding that he also hasn't had a chance to consult with
other lawyers on the defense team.
"It is obviously a step in the right direction," he added. "I view it as a good
decision, not just for Mr. Rodriguez. It's a good decision for the law."
The federal death penalty law involves weighing a number of factors in
determining a defendant???s mental eligibility for the death penalty, said
Richard Dieter, executive director of the Death Penalty Information Center.
Even before Supreme Court rulings forbade executing mentally disabled
criminals, federal law barred the practice, Dieter said.
"It was just sort of a simple exclusion, so that leaves it to a trial court" to
determine, weighing expert testimony and intelligence tests, he said. "No
particular restriction is written into the law."
In an appeal pending in U.S. District Court in Fargo, Rodriguez's lawyers have
argued he suffered brain damage resulting from severe post-traumatic stress
disorder caused by sexual abuse in childhood.
Rodriguez spoke Spanish as his first language growing up, and his family moved
between Laredo, Texas, and Crookston, Minn., before settling in Crookston when
he was in the third grade.
He was mocked and taunted by other children, according to court records, and
his school performance declined when he was in the 8th grade. He failed 9th
grade and later dropped out of school.
"I struggled in school," Rodriguez told an interviewer. "I got D's and F's.
Even to this day I struggled to read an article in a newspaper or magazine."
Intelligence tests administered when Rodriguez was in school ranged from scores
of 77, 79 and 80.
Mental health experts who examined Rodriguez for the defense team handling his
appeal determined that he is mentally retarded and suffered from "significant
defects in mental functioning, as reflected on intelligence scores and a
pattern of academic failures."
But experts for the prosecution came to a different conclusion, finding that
Rodriguez scores on the low range of normal intelligence.
Prosecutors noted that Rodriguez completed a high school degree in 1979 while
incarcerated in the Minnesota State Hospital.
"Al is a very good student, capable of dealing with sophisticated ideas," one
teacher at the state hospital wrote in a passage cited by prosecutors. "He
reads well."
In an interview by prosecution experts in the federal prison in Terre Haute,
Ind., Rodriguez spoke of following the news closely on cable television. He
expressed the view that Edward Snowden, the former intelligence contractor who
leaked documents, was a traitor.
In the same interview, last July, Rodriguez characterized religion as "a bunch
of goop," adding, "if He's so merciful you know so and if he doesn't want evil
in the world why doesn't he get rid of it if he's God? You know?"
Sjodin, who was a student at the University of North Dakota, was abducted from
the parking lot of a shopping mall in Grand Forks. Her body later was found in
a ditch near Crookston.
Rodriguez was convicted of her murder and kidnapping in Fargo in 2006. He is
one of 60 federal prisoners now on death row, according to the Death Penalty
Information Center.
(source: Brainerd Dispatch)
***************************
Surprise! SCOTUS Protects the Intellectually Disabled from Death Penalty
On Tuesday, The Supreme Court condemned as unconstitutional a Florida law that
weakened protections against sentencing intellectually disabled people to
death. The law sought to limiting evidence of intellectual disability to a
fixed number on an IQ test.
The Court's ruling in Hall v. Florida was delivered by Justice Kennedy.
Justices Breyer, Ginsburg, Sotomayor and Kagen joined in the ruling that struck
down a law which attempted to "draw bright lines on IQ test results."
Florida's Supreme Court interpreted the law in question to mean that any death
row inmate with an IQ above 70 is not intellectually disabled and "cannot
present evidence that he or she should not be executed."
That rigid and arbitrary standard was the central issue in this case because it
precludes sentencing courts from considering "even substantial and weighty
evidence of intellectual disability as measured and made manifest by the
defendant's failure or inability to adapt to his social and cultural
environment, including medical histories, behavioral records, school tests and
reports and testimony regarding past behavior and family circumstances."
In short, the Florida court's ruling made a snap shot assessment more important
than formal assessments over the course of an inmate's life time. Moreover, the
snap shot assessment was flawed and imprecise.
First, as the SCOTUS ruling pointed out, professionals who design, administer
and interpret IQ tests have, for several years, agreed that the results should
be read as a range, not as a fixed number. This is because IQ tests have a
"standard error of measurement" aka SEM, which are a statistical reality. They
really are an imprecise measure of intellectual ability or disability.
This ruling is an important constitutional and human rights victory against
efforts to broaden eligibility for the death penalty to include people who are
intellectually disabled.
In this case, Hall had substantial and unchallenged evidence beginning in
childhood that he is intellectually disabled - proving the inherent flaw in
defining intellectual disabilities based on an arbitrary number.
As the court noted, there are important reasons that people with intellectual
disabilities should not be subjected to the death penalty. First of all, people
with intellectual disabilities are more likely to be wrongfully convicted. They
are unable or have a limited ability to aid in their own defense. Also, people
with intellectual disabilities are more prone to offer false confessions and
tend to be poor witnesses.
The Florida Supreme Court's rigid criteria for designation of intellectual
disability means an increased probability of wrongful convictions and with it,
wrongful executions.
Even if those weren't issues, as the court notes:
"The diminished capacity of the intellectually disabled lessens moral
culpability and hence the retributive value of the punishment."
As it stands, the United States has the dubious distinction of having one of
the highest rates of killing its own citizens in the world. This is
particularly disturbing considering that, according to studies, 4% of people
sentenced to death in the United States are innocent.
The last thing we need is to expand "eligibility" for the death penalty to
include intellectually disable people based on a precise and fixed score on an
imprecise test.
(source: politicususa.com)
*******************
Who should get the death penalty? Your Say
The Supreme Court ruled Tuesday that intellectual disability, not IQ, should be
the determining factor in death penalty rulings. That makes it harder for
states to execute prisoners. Facebook comments edited for clarity and grammar.
I believe in an eye for an eye. The death penalty should apply to all. There
should be no passes for those who kill, even those with a low IQ score or an
intellectual disability. They were smart enough to kill someone. Why should
they live at our taxpayer expense? Use the money saved to feed those who really
need it.
Gary Kulak
I'm disturbed by the fact that people don't understand the dangerous
implications of treating those with the mental development of children like
other adults. In this case, chronological age isn't as important.
Randy Macklin
Letter edited for clarity and grammar
Tennessee legislators took a giant and deadly step backward in the inexorable
drive to abolish the death penalty when they became the first to reinstate the
electric chair. This method had been abandoned - other than at the inmate's
discretion - due to both its cost and, more important, its grisly nature.
Lethal injection, the primary execution method in the 32 states that have the
death penalty, is on its way out. State officials are scrambling to find a
cheap, easy and humane way to accomplish what is never worthy of a civilized
society. The only thing state legislators in Tennessee should volunteer for is
to make the Volunteer State the 19th to abolish capital punishment.
Walt Zlotow; Glen Ellyn, Ill.
(source: Letters, USA Today)
*****************************
Death Penalty - Defendant with Low IQ
Freddie Lee Hall, an intellectually-disabled man who has been on the death row
in Florida for 36 years, has been given a reprieve by the U.S. Supreme Court.
In Hall v. Florida, the court in a 5-4 decision held that Florida could not
refuse to take into account psychological factors other than an intelligence
test reflecting a borderline IQ. Florida had refused to review the death
sentence on the basis that Hall had scored 71 on an IQ test, even though expert
testimony suggested that Hall's IQ was lower than that.
Richard Dieter, executive director of the Death Penalty Information Center,
discusses the ramifications of the Court's ruling. "In the scientific
community, kind of experiment or test has a margin of error," Dieter explains.
Florida needs to take that into account. This particular ruling will affect a
relatively small number of people, Dieter says. It's not clear how many other
states are in the same situation as Florida. Justice Kennedy observed that
"Florida's law contravenes our nation's commitment to dignity and its duty to
teach human decency as the mark of a civilized world."
Dieter opines that there may be a changing perception of the utility of the
death penalty in a number of states. "People are becoming frustrated with the
death penalty, even those who support it,??? says Dieter. There are many
problems with the penalty, including the lethal injection cases that have been
in the news lately.
(source: Richard C. Dieter is an attorney and native of New York City. He has
been the Executive Director of the Death Penalty Information Center in
Washington, DC since 1992. Mr. Dieter has worked for many years on issues
related to human rights and the death penalty and has testified about the death
penalty before numerous state legislatures and has prepared reports for the
U.S. House Judiciary Subcommittee on Civil and Constitutional Rights ---- The
Legal Broadcast Network)
**********************
Snowden fears death penalty in U.S.; Former NSA analyst called out by John
Kerry
Secretary of State John Kerry has called on Edward Snowden to "man up and come
back to the United States."
Snowden, who worked for the National Security Agency where he leaked
information about the Agency's activities, including details of 2 top secret
U.S. surveillance programs, has been called a hero by some and a traitor by
others, and has currently sought temporary asylum in Russia, avoiding a trial,
which he believes would not be fair. Snowden claims that if he returned to the
U.S. he would be tortured and would face the death penalty.
Join the fight against world hunger.
Snowden has been charged with 3 offenses in the U.S., including espionage and
could face 30 years in prison if convicted.
Kerry denied this on an interview with CBS. "The bottom line is this man has
betrayed his country, sitting in Russia where he has taken refuge," he said.
Kerry argued that Snowden should make his case openly and freely in the U.S.
court system. "Instead he's sitting there taking pot shots at his country,
violating the oath that he took."
Snowden and his family and friends have argued that it would be impossible for
him to get a fair trial in the U.S. because of the numerous public
denunciations by members of Congress, and that the Justice Department as acted
under a presumption of guilt.
As an example, they point to the letter Attorney General Eric Holder wrote to
Russian officials, which sought Snowden's extradition back to America. In the
letter, Holder promised that the former NSA analyst would not be executed.
On May 28, Kerry added that Snowden: "has told terrorists what they can now do
to (avoid) detection."
"I find it sad and disgraceful," he said.
(source: catholic.org)
US MILITARY:
USS Cole defense lawyers ask Guantanamo judge for Senate 'Torture Report'
Lawyers on both sides of the USS Cole bombing case argued over the Senate
Intelligence Committee's "Torture Report" on Wednesday.
Defense lawyers told the war court judge that to prepare for the 1st
death-penalty trial by military tribunal at Guantanamo they need the entire
document, which describes their client's treatment while in CIA custody.
Prosecutors replied that the judge, whose job was created by Congress, has no
authority to order the Senate to hand over a copy of the report. The
prosecutors also said that they haven't obtained or read the Senate Select
Committee on Intelligence report on the CIA's black site program to decide what
portions defense lawyers might be entitled see.
The argument came in a pivotal three-day hearing in advance of the 2015
death-penalty tribunal of Saudi prisoner Abd al-Rahim al-Nashiri, 49, that's
focusing on how much material about the captive's four-year odyssey through the
CIA's black sites his lawyers might see.
Last month, the judge ordered the U.S. government to give al-Nashiri's
attorneys, not the public, much of it - names, dates, places. But the case
prosecutors are arguing that the judge, Army Col. James L. Pohl, misunderstood
the scope of his authority in presiding at the national security trial, and
does not have the power to give that information to defense lawyers. They want
him to rescind his order.
An executive summary - 480 pages - of the Senate report is undergoing a
declassification review, at the request of the White House. But defense lawyers
argue, separately from the judge's order up for reconsideration, that they want
all 6,600-plus pages of it - notably analysis - to evaluate what their client
told them about his torture in U.S. custody between his capture in Dubai in
2002 and arrival at Guantanamo for trial in September 2006.
In a letter to President Barack Obama on April 7, Sen. Dianne Feinstein,
D-Calif., described the report as "the most comprehensive accounting of the
CIA's Detention and Interrogation Program, and I believe it should be viewed
within the U.S. Government as the authoritative report on the CIA's actions."
But the judge questioned aloud in court whether the report constituted evidence
that could be admissible at trial, versus analysis. Lead prosecutor Navy Cmdr.
Andrea Lockhart said neither the prosecution nor the defense lawyers could know
the answer to that because neither side had read it and her team had not
evaluated whether it was material or relevant at trial.
Lockhart left unclear, in direct reply to the judge's question, whether case
prosecutors had actually asked for a copy of the report. She said only that the
prosecution expected the limited executive summary to have undergone a
declassification review sometime this summer.
For al-Nashiri, Army Maj. Tom Hurley noted that there is vigorous debate inside
government over what portion of the Senate summary might be released. "The
cruel part of the cruel joke that is the government's response is that it
suggests this belief that the United States government itself is going to get
it together and disclose some portion of this report." Al-Nashiri is accused of
orchestrating al-Qaida's Oct. 12, 2000, suicide bombing of the U.S. Navy
warship at the port of Aden, Yemen. 17 American sailors died and dozens more
were injured after 2 men motored an explosives-packed skiff alongside the Cole
and blew themselves up.
Wednesday's 3-day hearing began with an unusual closed session of the pretrial
proceedings that got underway without public explanation and "lasted an hour
and a half, roughly," according to an al-Nashiri defense lawyer, Navy Cmdr.
Brian Mizer.
Mizer said he was forbidden to describe what went on in the session, which was
held under a provision of the post-9/11 war court that allows lawyers to huddle
with the judge to figure out what portion of the court proceedings can be
conducted in secret.
In the past, the judge first held an open session to explain in advance the
nature of the proceedings with prosecutors and defense attorneys that would
exclude the public and al-Nashiri.
This time, the attorneys, staff and trial judiciary arrived on a flight from
the Washington, D.C., area Tuesday afternoon and started the hearing at around
9 a.m. without explanation.
According to the judge's docket, a major topic expected this week was a bid by
the prosecution to get the judge to reverse himself on his April 14 discovery
ruling. Once the sides opened the court, Wednesday morning, neither the judge
nor the lawyers mentioned the so-called motion to reconsider and hopscotched
around it in discussion other motions on this week's docket.
It is not known that, even if the judge does not reverse himself, whether the
CIA will comply.
The session began a day after the chief prosecutor, Army Brig. Gen. Mark
Martins, issued a statement that calculated the amount of closed sessions in
the case at "5 % of the proceedings." In the past, the court has weeks after
the closed session released a partial transcript of the closed hearings that
black out secret information but give the public a general sense of what was
discussed.
(source: Miami Herald)
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