May 23
INDIANA:
Poorly executed----State goes to great lengths to shield death-penalty policies
2 pages quietly added to the state's 175-page budget bill last year hid from
public view details of Indiana's death-penalty procedures. But a lawsuit
challenges the state's efforts to conceal the information and reveals public
officials' vigorous efforts to maintain secrecy.
A public records request filed four years ago set off the chain of events
prompting the lawsuit. A. Katherine Toomey, a Washington, D.C., attorney whose
clients include death penalty opponents, filed a complaint with the Indiana
Public Access Counselor in 2014 after the Indiana Department of Correction
refused to release information regarding the drugs used in executions and any
correspondence related to execution protocol. Public Access Counselor Luke
Britt's advisory opinion found the Department of Correction in violation of
state public records law.
Toomey filed suit in a Marion County court in 2016, seeking release of the
information. She won a summary judgment, the Indianapolis Star noted in a
report last week, but the battle was just beginning. The state appealed the
ruling, but lost. It sought transfer of the case to the Indiana Supreme Court,
but was denied.
Next came the budget-bill measure, inserted after midnight on the last day of
the 2017 session, at the request of Gov. Eric Holcomb. The language grants
anonymity to drugmakers that agree to supply lethal-injection drugs used in
executions. Pharmaceutical companies became increasingly reluctant to sell the
drugs to states after a botched execution in Oklahoma in 2014 created a public
outcry.
"There are many drugmakers who fear being identified as the provider of an
execution drug," Department of Correction spokesman Doug Garrison said last
year. "We want the ability to protect their identity."
The language, inserted in the must-pass bill, was also retroactive. The state
went back to the court and cited the newly passed law as grounds to deny the
summary judgment in Toomey's favor.
"You can't enact a statute directed specifically at Kate Toomey," Peter M.
Racher, an Indianapolis attorney representing Toomey, told the Star. "You can't
say, 'This law is to affect her.' We contend that's exactly what happened here.
The state had no other request other than the one our client made."
The state's retroactive confidentiality law is more narrow than it seems,
Racher said. And while it will be the focus of the case now before the Court of
Appeals, arguments last week raised yet another transparency issue: Whether
sealed evidence obtained during discovery should be made public.
The state argued it should not, claiming the information related to lethal
injections is exempted from public records law as "deliberative" material and
the records could identify "individuals who are involved in crafting public
policy as it relates to the death penalty. Revealing the identity of these
individuals could subject them to harassment, public shaming and even violence
from those who oppose the death penalty."
Racher said Department of Correction officials - under deposition - admitted
that no member has received threats regarding implementation of the death
penalty. Names are redacted in the documents.
And keeping with its insistence on secrecy, the state filed a motion to cancel
last week's public hearing. The judge denied the request.
"That's when we realized," Racher told the Star, "this is insult upon insult to
anyone who cares about transparency in government and openness in
representative government."
Hoosiers on both sides of the death penalty debate should be aware of the great
lengths state officials have gone to conceal public information.
It might be to preserve a policy they support in this case; it might be to
preserve actions they oppose in another.
(source: Editorial, The Journal Gazatte)
ILLINOIS:
Rauner's wish to resurrect the death penalty deeply flawed
Gov. Bruce Rauner seems to be one of the few people in Illinois who misses the
death penalty. There has been no mass outcry for its reinstatement from the law
enforcement community or from the people of Illinois, who seem content to avoid
the harsh injustices and added expense that capital punishment brought with it.
There has never been convincing evidence that capital punishment deters people
from becoming murderers. Rather, our experience since the death-penalty
moratorium confirms that there is not a correlation between the murder rate and
executions.
Whatever its motivation, Rauner's proposal to restore the death penalty for
mass killers and people who murder law enforcement officers reflects a lack of
experience with the issue. The late U.S. Sen. Paul Simon, a co-chair of the
13-member death-penalty review commission, warned us in 2000 that states cannot
create a death penalty that protects only peace officers. Firefighters will be
the next to demand the same protection; after them it will be the EMTs.
Historically, the death penalty has always escaped its boundaries. As soon as
it exists, it expands. A death-qualifier for multiple murders will soon face
demands that it be enlarged to include torture murders, child murders or
terrorist murders. Every person has a different moral sense of what is the
worst of the worst. And when capital punishment exists, each constituency
demands that its own sense of morality be vindicated.
We will soon be back to where we were, with the inevitable return of what is
truly the worst of the worst for any system of justice: sentencing the innocent
to die, which has happened too often in the highly charged atmosphere of
capital cases.
Finally, a "beyond any doubt" legal standard is entirely unworkable. By
focusing on the quality of the evidence, rather than the nature of the crime,
this standard seems distressingly irrational in practice. An 18-year-old who is
videotaped shooting 2 rival gang members will be eligible for the death
penalty. And someone like Timothy McVeigh, who murdered 168 people in 1995 by
blowing up the Alfred P. Murrah Federal Building in Oklahoma City, would not
be, since the case against McVeigh did not include beyond-any-doubt proof such
as DNA or other doubt-free forensic evidence. Worse, our judges have no
experience applying such a standard. Our courts of review would wrestle for
many years trying to figure out what such an unprecedented standard means.
While that is going on, we will have yet another de facto moratorium, because
no one can be put to death when the meaning of the governing standard is
unclear.
The "new" death penalty will only further erode confidence in our government
and our politicians, who make promises to voters in an election year, only to
find that what they swore to enact is unworkable and cannot be implemented
without years of litigation and delay. In the meantime, citizens of
cash-strapped Illinois will have to pay the exponentially larger costs of
capital punishment - for capital defense counsel, who almost always are hired
at public expense; for the countless appeals that death-penalty cases bring
that strain the budgets of prosecutors' offices; for the increased costs of
confinement of death-sentenced inmates, who have reduced incentives to behave
in the penitentiary; and even the expense of refurbishing our death chambers.
An Illinois native, Washington Post columnist George Will remarked a while ago,
"The death penalty is just another government program that has failed." It was
bad enough the 1st time around. Reimplementing a failed system riddled with
race and class bias in practice invites comparison to that familiar definition
of psychosis: repeating the same behavior and expecting a different result.
(source: Commentary; Scott F. Turow, a Chicago attorney and best-selling
author, served on the Illinois Commission on Capital Punishment----Chicago
Tribune)
*******************
Rauner should not bring back death penalty
What in the world is the governor thinking in reinstating the death penalty?
Several years ago, following the rash of wrongful convictions and after strong
debate, the Illinois General Assembly voted to abolish the death penalty.
Now, to bring it back by a governor fiat will be a tremendous slap in the face
to all Illinois citizens. Keep the current law, as recognized by our
legislature and Supreme Court, in effect.
Governor, don't make a change.
Michael B. Metnick Springfield
(source: Letter to the Editor, State Journal-Register)
MISSOURI:
Death penalty possible for man charged with murder after Northland shooting
spree
A Kansas City man who told authorities he was hearing "voices" when he wounded
2 men has been charged with fatally shooting a 3rd man on the same night.
Arnoldo Pompa-Rascon, 41, is facing several charges including 1st-degree
murder. He was in court Tuesday.
Prosecutors say he went on a violent crime spree opening fire at 3 locations on
May 11 before being arrested a few days later.
Tuesday's court proceedings went smoothly. Inside, Pompa-Rascon had headphones
on so a translator could tell him what the judge was saying.
Pompa-Rascon is charged with 1st-degree murder and armed criminal action after
the killing of popular tattoo artist Russell Fisk. These charges are in
addition to 2nd-degree burglary and stealing firearms among other charges in
Jackson County and 2 counts of 1st-degree assault in Clay County.
Pompa-Rascon told police he heard voices telling him to shoot the victims.
In addition to these charges, the other question moving forward is how his
immigration status will impact the cases.
Pompa-Rascon is in the United States illegally and snuck back into America 4
times.
"He will have to serve any sentence if he is convicted of those charges before
anything would happen with respect to his immigration status," Platte County
Prosecutor Eric Zahnd said.
Pompa-Rascon has a $1 million cash bond both in Platte and Clay counties.
If he is convicted, he could spend life in prison, but he could also be given
the death penalty.
(source: KCTV news)
COLORADO:
There are 2 sides to the death penalty
Perhaps Laura Eurich's confusion over the advisability of supporting the death
penalty ("Faced with the Death Sentence," SemiNative, May 9) might be relieved
by the following facts.
Statistical studies by reputable researchers suggest that a 4.1 % wrongful
conviction rate in capital cases is a conservative estimate. The most recent
U.S. Bureau of Justice assessment (2016) lists 2,814 people on death rows in
the United States. 115 of these, then, are wrongly convicted. The chances that
their wrongful convictions will be overturned before they are executed are
slim.
My late brother-in-law was convicted of murder, rape, arson and robbery back in
the 1970s. His conviction was overturned by the Colorado Court of Appeals, but
reinstated by the Colorado Supreme Court on the grounds that the Constitution
guaranteed "a fair trial, not a perfect trial." Fortunately, Colorado had no
death penalty at that time, so my brother-in-law was not executed. Not only I,
but a great many people, including judges, attorneys and clergy, are convinced
that he was wrongly convicted in the first place.
Indeed, we cannot guarantee perfection in any human activity. If Ms. Eurich is
comfortable with a 96 % chance that the prosecution's case is legitimate and
has been proved, then she should be comfortable voting for a death penalty
conviction. If she is not comfortable with that margin of error, then she
should no longer support the death penalty.
-- Malcolm McCollum, Colorado Springs
(source: Letter to the Editor, Colorado Springs Independent)
CALIFORNIA:
Abandoning a long-held position, Dianne Feinstein says she now opposes the
death penalty
Sen. Dianne Feinstein says she now opposes the death penalty, a surprising
reversal from her long-standing support for capital punishment - a stance that
helped catapault her to the U.S. Senate 25 years ago.
"Several years ago I changed my view of the death penalty. It became crystal
clear to me that the risk of unequal application is high and its effect on
deterrence is low," she said in a statement to The Times.
The shift is the latest example of Feinstein - who built her career as a
moderate Democrat - embracing more liberal positions as she faces reelection in
November in a state that has become increasingly progressive.
She also recently softened her position on federal enforcement actions against
recreational use of marijuana.
Her staff said the change of heart on capital punishment went largely unnoticed
because Feinstein was rarely asked about it. They could not pinpoint exactly
when the shift occurred.
Numerous media reports, including some in the last year, have continued to
mention Feinstein's support for the death penalty. Her office acknowledged that
it never sought to correct the record.
When constituents specifically asked her office for her position on the death
penalty, they received a letter detailing the new stance, a spokesman said.
"It has now become clear to me that the death penalty is being applied
inconsistently," the letter states. "There is more and more evidence that
innocent people have been put to death and that the death penalty is applied
arbitrarily or discriminatorily on the basis of race, gender, and geography."
Feinstein is adjusting her centrist formula as California drifts further to the
left
In many ways, her support for the death penalty was pivotal to Feinstein's
initial bid for higher office. When Feinstein ran for governor in 1990 - a time
of higher crime and more Republican voters in California - she used her support
of capital punishment to draw a distinction between herself and the Democratic
Party base, which at that time was more left-leaning than the overall state
population.
"Yes, I support the death penalty. It is an issue that cannot be fudged or
hedged," Feinstein said in her address to delegates. It prompted a wave of boos
and cost her the party endorsement.
She used footage of the speech in campaign ads to showcase her moderate views
and appeal to liberal Republicans. And it became a key part of her stump
speech.
In 1996, Feinstein was the only Democrat to co-sponsor the Antiterrorism and
Effective Death Penalty Act, which among other things limited how many times a
death-penalty sentence can be appealed. It passed by a 91-8 vote.
In 2004, Feinstein put then-San Francisco Dist. Atty. Kamala Harris on the spot
by calling for the death penalty for the killer of San Francisco Police Officer
Isaac Espinoza during a speech at his funeral, which both women attended.
Harris, an opponent of capital punishment who is now Feinstein's colleague in
the Senate, had declined to seek the death penalty. Feinstein described the
killing as "the special circumstance called for by the death penalty law" and
said at the time that she wouldn't have endorsed Harris if she'd known Harris
opposed the death penalty.
In 2013, Feinstein said the prosecution of a man accused of the Boston Marathon
bombing "should likely be a death penalty case under federal law."
A 2016 UC Berkeley Field Poll found that backing for the death penalty among
California voters remained essentially static at 45% support since 2009. The
share of voters undecided on the issue dropped, with 55% of voters saying they
prefer life without parole as a punishment.
(source: Los Angeles Times)
*****************
California prosecutor opposes new DNA test in 1983 murders
California prosecutors on Monday opposed new DNA testing in an infamous
35-year-old murder case, saying previous tests showed the right man is on death
row.
San Bernardino County District Attorney Mike Ramos asked Gov. Jerry Brown to
deny Kevin Cooper's clemency petition, though his attorney said he was framed
by investigators.
Cooper, 60, is awaiting execution for the 1983 Chino Hills hatchet and knife
killings of four people. He escaped from a nearby prison east of Los Angeles 2
days before the slayings of Doug and Peggy Ryen, their 10-year-old daughter
Jessica and 11-year-old neighbor Christopher Hughes.
Ramos said his office agreed to new testing in 2001 and 2002 of material
selected in part by Cooper's own DNA expert. That testing showed Cooper was in
the home at the time of the murders, smoked cigarettes in the Ryen's station
wagon after he stole it and his blood and the blood of at least one victim was
on a t-shirt found by the side of a road leading away from the murders, Ramos
said.
Cooper's scheduled execution in 2004 was stayed when a federal appellate court
in San Francisco called for further review of scientific evidence that Ramos
said led another judge to determine that "Cooper alone was responsible for
these terrible murders."
A San Diego judge in 2011 blocked Cooper's request for a 3rd round of DNA
testing.
"The families of the victims and the surviving victim have waited patiently for
35 years for justice in this case," Ramos said in a statement. "They have
endured not only the loss of their loved ones, but also the repeated and false
claims from Cooper and his propaganda machine designed to undermine public
confidence in the just verdict."
Interest was renewed by a column last week by New York Times' columnist
Nicholas Kristof suggesting Cooper was framed. U.S. Senator Kamala Harris, who
previously was the state's attorney general, and Democratic gubernatorial
candidate and state Treasurer John Chiang are among those supporting new DNA
tests.
Cooper's clemency request is being reviewed by Brown's office, which will
determine if new DNA tests are appropriate, spokesman Evan Westrup said.
California hasn't executed anyone since 2006.
Cooper's attorney, Norman Hile, said more sensitive DNA testing would prove
Cooper's innocence and that the 2004 testing showed his client was framed. It
showed the blood sample contained a preservative and also was contaminated with
someone else's blood, he said.
More sensitive DNA testing available today would also be able to show who wore
the bloody t-shirt, Hile said. He said Cooper's blood was planted on the
t-shirt worn by one of the real killers.
Ramos also said more sensitive testing of the hatchet, the hatchet sheath, the
t-shirt and a prison button found in Cooper's alleged hideout would be useless
because they have been touched by others over the years.
Hile said the button was the wrong color and also was planted by investigators.
Law enforcement is to blame if the evidence was contaminated by others over the
years, he said, though he said the hatchet handle was given a protective cover
that should have preserved any DNA.
"If there are tests that could be done and we will pay for them, why shouldn't
they be done before somebody is executed?" Hile said.
(source: Associated Press)
***********************
He's on death row. But Is He Innocent?
Re "Framed for Murder?" (Sunday Review, May 20):
Nicholas Kristof's column about Kevin Cooper was both astounding and deeply
disturbing. Sadly, I wasn't surprised that a sheriff's department in 1983 might
have been motivated by racism and politics to ignore and destroy evidence of
brutal murders by 3 white men, and turn its attention to an innocent black man
instead - although I'd like to think the extreme lengths it apparently went to
to frame Kevin Cooper are exceptional.
I am surprised, however, to learn that two people whom I respect - Gov. Jerry
Brown and Senator Kamala Harris, former attorney general of California -
compounded this injustice by declining to authorize advanced DNA testing, which
could prove Mr. Cooper's innocence. While Ms. Harris's recent tweet supporting
DNA testing now is helpful, it is not enough.
I hope Senator Harris and Governor Brown will do everything they can to at
least partially right the wrong, so that testing can proceed, and Mr. Cooper
can reclaim the portion of his life that still lies ahead. They owe it to Mr.
Cooper. And they owe it to the millions who now know of this horrific
injustice, and wonder whether the America of 2018 is any better than the
America of 1983.
BETH KARPF, BOULDER, COLO.
To the Editor:
The government's willful blindness to Kevin Cooper's meritorious claim of
innocence is shocking. But Mr. Cooper is only 1 of 115 people in the country
estimated to be innocent who are awaiting execution. Delve into any case
involving similar innocence claims, and the shock continues.
Darlie Routier, featured in our upcoming ABC death-row series, "The Last
Defense," has been on Texas' death row for more than 20 years despite no
credible evidence linking her to the crime. A bloody print could reveal the
identity of the person who killed her 2 sons. Yet the government has delayed
running it through the F.B.I.'s database of 70 million fingerprints.
Julius Darius Jones, also featured in the series, was convicted in Oklahoma in
a racially charged trial based on dubious informant testimony - the leading
cause of wrongful convictions in capital cases. His co-defendant, who served 15
years, fit the perpetrator's description. Mr. Jones did not.
After a verdict, the burden shifts to the convicted to prove innocence from
their cell - a herculean endeavor. Those on death row are up against the clock.
Executions are irreversible.
When the government refuses to reopen these cases, national attention can be
the only hope. Nicholas Kristof's spotlight on Mr. Cooper may be the catalyst
for testing that could prove his innocence.
VANESSA POTKIN
AIDA LEISENRING
The writers, both of whom are lawyers who litigate wrongful-conviction cases,
are executive producers of "The Last Defense."
(source: Letters to the Editor, New York Times)
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