Sept. 18
DELAWARE:
Lindsey Bonistall's parents: Killer's death term 'fair' but 'no justice'
For the White Plains parents of Lindsey Bonistall, Monday's sentencing of their
daughter's killer to death by lethal injection is "fair" but hardly heals the
wounds they've suffered for the past 7 years.
"For me there is no justice because Lindsey will not be coming home with us,"
Kathleen Bonistall said outside of the Wilmington, Del., courthouse where James
E. Cooke Jr. received his death sentence.
Kathleen and Mark Bonistall had watched in the hushed gallery as a gasp went up
through the packed courtroom when the sentence was delivered. The jury members
who convicted Cooke, 41, of brutally killing the University of Delaware student
in May 2005 and then setting her off-campus apartment on fire held hands and
cried as they heard the judge hand down the sentence they recommended in May.
"She was a completely innocent victim of a violent crime," Superior Court Judge
Charles Toliver IV said of Bonistall.
Toliver went on to call Cooke's killing of the 20-year-old Bonistall "cruel,
violent and sadistic."
Cooke, meanwhile, insisted on his innocence.
"You claim to give me death for something I never done," Cooke said to Toliver.
"I never got a fair trial period. You know it and I know it."
Cooke then went on a tirade, calling the judicial system corrupt before he was
led away by guards.
In Delaware, there is an automatic appeal to the state Supreme Court in death
sentence cases.
Cooke placed Bonistall's body in a bathtub and piled personal belongings such
as a guitar on her. He also filled the apartment walls with racist graffiti
including "KKK" in a bid to throw police off the track.
Cooke is African-American; Bonistall was white.
Cooke was convicted in 2007 of her murder and sentenced to death.
But that verdict and sentence were overturned by Delaware's Supreme Court,
which said in 2009 that Cooke's lawyers had wrongly argued that he was guilty
of the killing but suffered from mental illness. The lawyers had not received
Cooke's permission to make such an argument.
Cooke was retried this year and convicted again of 1st-degree murder.
"Nothing changes the fact that Lindsey will not return home with her mom, dad
and sister to Westchester County today," Delaware Attorney General Beau Biden
said in a written statement Monday. "However, the sentence handed down reflects
the brutality of her attack and murder."
The retrial was frustrating for the Bonistall family, with Kathleen Bonistall
saying the money spent on a retrial could have been better spent forging better
prevention programs.
"It begs to ask what are we doing to prevent this type of crime?" Kathleen
Bonistall said.
The end of the trial does not mean an end to the pain for the Bonistalls.
"This isn't an end for us," Kathleen Bonistall said. "It's an end to an arduous
process where we had to sit and endure lies about our daughter as a defense."
(source: Newsday)
***********
Death sentence verdict in Delaware rape and murder case of Lindsey Bonistall
James Cooke Jr., has been sentenced to death by lethal injection, again, in the
rape and murder case of University of Delaware student Lindsey Bonistall.
The ruling came Monday afternoon from Superior Court Judge Charles H. Toliver
IV. However, Cooke still claims his innocence. "I never got a fair trial," said
Cooke in the courtroom filled with jurors and Bonistall's family.
"The verdict I think was fair, it was proven twice now that Lindsey was an
innocent victim and that she was killed by a career criminal. The way that
Lindsey died was undeserving of any human being," said Kathleen Bonsitall, the
victim's mother.
The murder of Bonistall who was killed in her off campus apartment in May 2005
went to trial twice, but the guilty verdict in the first trial was later
overturned by the Delaware Supreme Court. Cooke represented himself during the
retrial earlier this year and received the death sentence.
"It was pretty much anticipated that the judge was going to come down with the
death sentence, we were prepared for that, said Anthony Figliola who
represented Cooke after Judge Toliver suspended Cooke's right to represent
himself.
An automatic appeal because of the death penalty will be filed in the next few
weeks. "You are totally wrong for sentencing me period," said Cooke after Judge
read all the charges in detail.
"What happened here today doesn't change the fact that Lindsey won't be getting
in the car this afternoon returning home to West Chester, New York with her
sister and her dad and her mom....but at least today's sentence reflects the
brutality of Lindsey's attack and her murder," said Attorney General Beau Biden
who was there during the ruling.
"This isn't an end for us, this is an end to an arduous process where we had to
sit and endure lies about our daughter as a defense, there's something wrong
with that system, it's broken, it needs to be fixed....victims need a voice and
their voices need to be heard," concluded Kathleen.
(source: Newsworks)
****************************
Delaware Supreme Court overturns death sentence
The Delaware Supreme Court has overturned the death sentence of a taxi driver
who murdered a 78-year-old Lewes woman in her home in 2009.
Leslie Small was sentenced last year to death by lethal injection after a
Sussex County jury found him guilty of stabbing June McCarson to death with a
pair of scissors on the floor of her mobile home, then stealing her Social
Security money to buy crack cocaine.
Small's defense attorneys appealed the decision and argued prosecutors tainted
the sentencing process by describing Small's defenses as "excuses."
To avoid the death sentence, Small's lawyers presented a list of mitigating
factors for jurors to weigh when deciding if his life should be spared.
The factors included Small's strained relationships with his family, his drug
addiction and his HIV-positive status.
The Supreme Court ruled that the prosecution unfairly characterized them as
"excuses" several times in remarks to the jury, which could have led jurors to
believe the defenses stated by Small's lawyers were not to be taken seriously.
"A penalty hearing conducted without the prosecutorial misconduct may have led
to the jury's vote being split or in favor of life imprisonment," wrote Chief
Justice Myron T. Steele in an opinion released Tuesday. "Although Delaware law
would have permitted the trial judge to impose the death penalty even if the
jury had voted differently, we cannot be confident that the trial judge would
have done so."
The Attorney General's Office would not say if prosecutors will try again for a
death sentence.
"Small will, at the very least, remain in prison for the rest of his natural
life," read a statement released by AG spokesman Jason Miller.
"The ultimate decision regarding further sentencing proceedings will be made
after a full examination of the matter and discussion with those the closest to
Ms. McCarson."
(source: The News Journal)
NORTH CAROLINA:
Former death row inmate now charged in wife's killing
Joseph Green Brown refused to run from his troubled past. He'd tell audiences
he was only hours from being executed on Florida's death row. He'd talk about
how an appeals court overturned his rape and murder convictions in 1986 and how
he walked out of prison a free man -- with a goal of ending the death penalty.
Now Brown is back in jail, this time facing 1st-degree murder charges in the
death of the woman he married 20 years ago, Mamie Caldwell Brown of Charlotte.
"This is just horrible," said Sherry Williams, Mamie Brown's aunt. "From what
we could tell, he was sweet and caring. And now this? We are all in shock. How
could this happen?"
Brown was in a Mecklenburg County courtroom Monday for a preliminary hearing.
The judge ordered the 62-year-old Brown held without bond until a Sept. 26
hearing. A daughter of the victim shouted, "Oh, my God!"
Mamie Brown, 71, was found dead in her apartment last Thursday after police
were asked to check on her. Joseph Brown was arrested late Friday at a hotel in
Charleston, South Carolina.
Joseph Brown was convicted and sentenced to death for a 1973 rape and murder in
Hillsborough County, Florida. His conviction was reversed in 1986 because of
false testimony from a co-defendant.
During a brief hearing in Charlotte, Brown was escorted into a courtroom in
handcuffs. Wearing an orange prison jump suit, he glimpsed at his wife's family
in the courtroom, but quickly turned away.
Outside, Mamie Brown's family said Brown never hid that he was on death row. In
fact, they said, he embraced it.
"He went around talking to groups about it," Williams said. "He even talked to
my church about it. He told people what they had to do to stay out of trouble.
He was a good motivational speaker. That's how he made a living."
It's unclear whether Brown had an attorney Monday afternoon.
Charlotte-Mecklenburg police are still investigating Thursday's slaying.
District Attorney Bill Stetzer said prosecutors would present the case soon to
a grand jury.
Brown's 1974 conviction and death sentence by a Florida jury was for raping and
murdering Earlene Treva Barksdale, the owner of a clothing store. He was
scheduled for execution Oct. 17, 1983, but a federal judge ordered a stay 15
hours before he was to be put to death. The U.S. Circuit Court of Appeals
overturned the conviction in early 1986, saying the prosecution knowingly
allowed false testimony from a leading witness.
The prosecution decided against retrying Brown and he was released from prison
on March 5, 1987.
After his release, Brown took the name Shabaka and frequently spoke out against
the injustice and finality of the death penalty, including to a U.S. House
Judiciary subcommittee in 1993.
Richard Blumenthal, now a U.S. senator from Connecticut, represented Brown on
appeal as a volunteer attorney for the NAACP Legal Defense Fund. He was in
private practice at the time.
Blumenthal said in 1987 that the Brown case changed his view of the death
penalty "because it provided such a dramatic illustration of how the system
could be fallible and cause the death of an innocent person."
Blumenthal declined to comment Sunday on his involvement in the case, and did
not respond to requests for comment Monday.
After prison, Brown went to the Washington D.C. area where he met his future
wife. They got married about 20 years ago and moved to Charlotte about 5 years
ago, family members said.
"We thought they were happy," said Marcus Williams, who is Mamie Brown's
cousin.
He said the family didn't worry about Brown's past.
"He didn't seem like a threat. He was upfront about everything. He was always
smiling and trying to help people. He was a motivational speaker. He liked to
warn people what could happen in the legal system," he said.
Joyce Robbins, another relative, said she stared at Brown in court.
"He had a blank look. I don't know that person. I've never seen him before,"
she said.
J. Michael Shea, a Tampa attorney who defended Brown on the Florida murder
charge, said over the years, they appeared together on television shows and
spoke at law schools. He said he talked to Brown by telephone at least each
Christmas, and last saw Brown about a decade ago when both appeared on the
Jenny Jones syndicated TV talk show to discuss the case.
He said Brown cared about his wife.
"I can recall that he cared a lot about this woman. I mean, he always talked
very favorably about her. And usually when I talked to him (on the phone) she
was there. I could either hear her say, 'Oh, hello Michael,' in the background
or she actually got on the phone or whatever. So it was a real shock that this
has happened."
(source: Associated Press)
***********************
Death penalty in a state of confusion
Stanley Peele, a columnist for The Herald-Sun and Chapel Hill Herald, wrote a
3-part series on the death penalty that appeared in The Herald-Sun this week.
He highlights a number of concerns with how the death penalty is implemented,
and what the state of death row is today in North Carolina.
Death row is in limbo in North Carolina, thanks to a number of factors that
have combined to result, in essence, in a moratorium on the death penalty in
our state, in all but name.
No inmate has been put to death since Aug. 18, 2006, though 155 inmates remain
on death row.
It is a relief that death row has ground to a halt. A system as rife with
inconsistencies and potential unfairness as this one should not be used to deal
out the ultimate punishment.
Peele, a judge who serves in an emergency capacity throughout the state, makes
a number of compelling points in his series.
Defendants are more likely to get a death sentence in Wake County, which has 10
death row inmates, than Durham County, which has none.
About 149 cases stand to be litigated under the Racial Justice Act, a law that
allows statistics to be used in order to show bias, and if bias is shown, a
sentence would be reduced from death to life without parole. Those cases, Peele
writes, may take years in some instances to decide. The Racial Justice Act was
used in a case this year to reduce a sentence to life, although since that case
it has been weakened by an amendment passed in July.
The state may be unable to find medical assistance to perform executions, with
both the American Medical Association and North Carolina Medical Board opposed
to having doctors attend. (North Carolina's method of execution is lethal
injection).
With no executions for 6 years, when might executions possibly resume?
"The easy answer is nobody really knows," Peg Dorer, executive director of the
N.C. Conference of District Attorneys, told WRAL in May. "If it ever does
resume, I'd say it will be 20 years."
"It is possible," Peele concludes, "that there will never be executions in this
state."
If that is the case, then what to do about the inmates currently on death row?
Peele suggests possible ways to reduce the number of death row inmates, such as
by examining criminal records to find those with less egregious convictions;
removing inmates over a certain age; or removing inmates based on when the
crime is committed.
None of these are perfect options, and there seems to be no easy way forward.
What is clear, though, is the current state of death row in North Carolina is
unfair to victims' families, those incarcerated and their families - it's a
terrible situation for everyone.
(source: Editorial, The Herald-Sun)
CONNECTICUT:
Death row case to test scope of repeal
The Connecticut Supreme Court agreed Thursday to hear death row inmate Eduardo
Santiago's request to extend the recent abolition of the death penalty to his
own sentence, despite the bill???s iron-clad language restricting the repeal to
new cases.
In April, the state legislature passed a repeal of the death penalty, but the
legislation did not apply to those sentenced to death before the law was
passed. Out of the 11 inmates currently on the state's death row, 5 of them
have already appealed to the Court regarding the validity of their sentences.
Santiago's death sentence was overturned in June because of withheld evidence,
but he will have to face re-trial unless he can successfully argue that the
legislature's appeal should apply to him, said Mark Rademacher, his attorney.
State legislators interviewed were split on how they think Santiago's case will
turn out, with pro-death penalty Republicans predicting he will escape his
sentence and anti-death penalty Democrats expecting the appeal to fail.
Republican State Reps. David Labriola and Arthur O'Neill said they have no
doubts about Santiago's success in appealing to the Court. Labriola called the
repeal's "prospective" language, which aims it only at future cases,
"disingenuous," echoing the concerns of many death penalty advocates who feared
last spring that a repeal would be used as grounds for the appeals of sentences
regardless of its wording.
Both charged that the prospective language was a ploy on the part of repeal
advocates designed to rally as many votes as possible, but State Rep. Gary
Holder-Winfield, a Democrat from New Haven and one of the most outspoken
proponents of repeal, responded that it was a political compromise necessary to
ensure the success of the death penalty abolition movement.
"What we did is not what I would do if I had my way, but if people say that's
not a smart way to go, then they're not paying attention," he said.
Holder-Winfield said he does not see good odds for Santiago's case. Although he
believes the death penalty is not an appropriate punishment for anyone, "you
don't subvert the law," he said. He argued that because the court is bound to
look at the legislators' will in passing the repeal, they will not steer around
its provision restricting it to future defendants.
State Senate Majority Leader Martin Looney, another Democrat from New Haven,
agreed: "There's nothing in the language of the statute that we passed that
would give any leverage to the case," he said.
Still, Santiago's lawyer said he remains optimistic that his client will win
his appeal.
"Does Connecticut want to be that outlier state that executes people even after
[the repeal] was confirmed?" Rademacher said.
The most compelling argument facing the court, he said, will be Connecticut's
status as the only state with prisoners on death row after passing a repeal on
the death penalty. According to Yale political science professor Kelly Rader,
however, this claim will most likely not sway the court.
"The fact that no state has ever done it before doesn't seem legally relevant,"
she said. "Constitutionally, it doesn't fly."
While Rader conceded that the repeal legislation means there is little logical
reason to "justify executing people under the old regime," she said she does
not think Santiago's death sentence is unconstitutional. Yale Law School
professor Robert Burt, on the other hand, said he thinks the prospective repeal
is a "violation of equal protection and thus unconstitutional."
"If I were a justice I would conclude that the distinction between past and
present [crimes] is fundamentally irrational," he said. "All of the reasons or
any of the reasons that the legislatures would have concluded [in passing the
repeal should] apply equally."
Santiago and 2 other men were convicted in the fatal shooting of 45-year-old
Joseph Niwinski in West Hartford, Conn., in 2000. According to police records,
Santiago was promised a pink-striped snowmobile in return for the murder.
(source: Yale Daily News)
MISSOURI:
Hearing re-examining Missouri death row inmate's case
Evidence that has come to light in the years since Reginald Clemons was
convicted of killing 2 sisters sheds doubt on his involvement in the crime, the
death row inmate's attorney told a judge Monday at a hearing re-examining the
case.
Clemons was 1 of 4 men convicted in the 1991 killings of 20-year-old Julie
Kerry and 19-year-old Robin Kerry. The sisters and their cousin, Thomas
Cummins, who was in town visiting, were pushed off an abandoned bridge into the
Mississippi River in St. Louis. Cummins survived.
The case has drawn the attention of groups opposed to the death penalty,
including rights group Amnesty International. And concerns were strong enough
that Jackson County Circuit Judge Richard Manners was appointed to preside over
the special hearing. He will issue a report to the Missouri Supreme Court,
which will decide whether to commute Clemons??? death sentence and possibly
require a new trial. That ruling isn't expected for several months.
Clemons, 41, attended the hearing dressed in a dark suit with a red tie. He was
not handcuffed or shackled, but 2 police officers sat directly behind him, and
2 others sat along the center aisle. The courtroom was packed, mostly with
supporters of Clemons.
The hearing is expected to last about a week.
On the night of April 5, 1991, the Kerry sisters took their cousin Cummins,
then 19, to the abandoned Chain of Rocks Bridge to show him a poem they had
written on the span. They were approached by four young men. The sisters were
raped and pushed off the bridge. Cummins also was pushed.
Julie Kerry's body was found three weeks later, 150 miles downriver. Robin
Kerry's body was never recovered.
Clemons was 12 days away from being put to death in 2009 when the U.S. 8th
Circuit Court of Appeals postponed the punishment over concerns about
Missouri's execution method.
"Without the 8th Circuit, Reggie would be dead," Clemons' attorney Josh Levine
said.
In opening statements Monday, Levine cited what he called "injustice during
every point in Reggie's road to death row." Levine alleged that police
questioning Clemons about the crime beat a confession out of him. The lawyer
also said key evidence was withheld from the original defense lawyers,
including a medical examiner's test that showed no evidence that Julie Kerry
was raped.
Assistant Attorney General Sue Boresi said there was ample evidence to convict
Clemons. She described how the sisters were raped on the bridge while their
cousin was forced to the ground.
Boresi said all 3 were then led through a manhole down to a lower deck of the
bridge. She said Clemons blocked the manhole - the only escape route - while
another man, Antonio Richardson, shoved the victims over the railing.
Clemons confessed to the killings, but later recanted. He is expected to
testify that police beat him into confessing.
The sisters' cousin, Cummins, also originally confessed to the crime, but the
handling of his confession raised additional concerns, Levine said. According
to the original police report, Cummins told officers he made sexual advances on
Julie Kerry. When she spurned the advances, the report said, they argued as she
sat on a bridge railing and he accidentally pushed her over the railing. The
report said Cummins claimed to have "blacked out" before realizing he had
either pushed Robin Kerry over the railing, too, or that she had jumped in to
save her sister.
But Clemons' trial attorney, Jeanene Moenckmeier, testified Monday that the
defense lawyers were given a revised report that downplayed Cummins' alleged
confession. She said that report had Cummins saying Julie Kerry fell on her
own, and Robin Kerry jumped in after her sister. It also excluded a quote from
Cummins about the alleged confession: "That's the truth. Believe me."
Cummins later recanted and received a $150,000 settlement over allegations that
he was beaten by police.
Moenckmeier said the original prosecutor in the case, Nels Moss, did not
disclose that the medical examiner performed a rape analysis after the body of
Julie Kerry was found. The analysis found no evidence of rape. The existence of
a rape kit only came to light in 2010.
Boresi said Julie Kerry's body was so decomposed after 3 weeks in the river
that evidence of rape was no longer detectable.
Of the other 3 suspects in the case, Marlin Gray was executed in 2005;
Richardson is serving life in prison after his death penalty was overturned
because of a procedural error; and Daniel Winfrey pleaded guilty to 2nd-degree
murder after agreeing to testify against the others. He was released on parole
5 years ago.
(source: Associated Press)
**************************
Determining Life or Death: Day One of the Reggie Clemons Hearing
Day 1 of the Reggie Clemons hearing concluded in St Louis, Missouri yesterday.
I left with its intensity lingering in my bones. Directly in front of me was
the man himself, Reggie Clemons, sitting quietly in a suit provided to him less
than an hour before the hearing was to begin. His alert eyes followed the
proceedings that will have a bearing on whether he will live or die. To my
right was Rev. Thomas, his father. In front of him was the victims' mother,
Mrs. Kerry. Both sat silently. I guessed that they had a mixture of numbness
and pain in the face of a 21-year legal process set in motion by the terrible
events of a dark night in 1991.
Behind me was an audibly frustrated woman, who I learned was the grandmother of
1 of the other 2 African American men who, with Reggie, was sent to death row.
(His sentence has since been changed to life). Filling in the remaining
stretches of pew space in the small courthouse were mostly Reggie supporters
and some journalists.
The hearing got off to a smooth start with little emotion, despite the intense
feelings running through the many individuals in the room who had a connection
to the human beings involved in the case. Reggie's lawyers presented their
theory of what actually happened in the case and why he deserved to have his
death sentence removed and a new trial granted. The state described the case
from a very different point of view and argued that Reggie's case should stand
as it is because there was no new evidence, except for some new DNA testing,
which they will describe in more detail as the hearing proceeds this week.
Reggie's lawyers called 2 witnesses to the stand and played a video of a third
witness who they had previously deposed. Their focus for most of the day was to
prove that the prosecutor (who was cross-examined) acted inappropriately by
editing a police report that was key to the case. The video-recorded police
detective said, "I don't think a prosecutor has ever made changes to a draft
report." He agreed that many of the lines struck from the original report were
inappropriately removed in the final report. The draft of the report showed the
DA's handwritten notes marking which lines to omit from the final version. This
included the coast guard's assessment of the river and how unlikely the star
witness' story was that he jumped into the river and could survive. It also
changed the sense that the star witness offered testimony on his own, in one
version of the story, rather than as a result of police suggestion.
The state pushed back that the defense had ample opportunity to challenge this
at trial and other stages in the legal process. And if they were right to a
certain extent, what does it mean when you have an incompetent lawyer who fails
to mount a vigorous defense? Are you simply out of luck, especially if you face
a prosecutor whose behavior was essentially the opposite - aggressive to the
point of being found in contempt of court, ordered to pay a fine? After all,
the law requires that you get to go through the process, but does not require
that the defense and prosecution are equally matched.
And what does it mean for the families to go through numerous proceedings,
trying to address these issues that get calcified in a legal system that
doesn't like to alter the course set at the trial?
This process is an important opening. The Missouri Supreme Court's willingness
to assign a special master to Reggie's case was an unusual and significant
move. I hope that more truth will come to light so that the human rights of all
involved are ultimately respected and these families can start to heal. The
truth that is shining brightly for me is how dangerous and damaging it is to
allow fallible institutions made up of fallible human beings to wield such
awful and uncorrectable power.
(source: Laura Moye, blog, Amnesty International USA)
****************************
Clemons' lawyers claim he was coerced into confessing 1991 bridge murders
Attorneys for Reginald Clemons argued this morning that an altered police
report, a coerced confession and withheld lab evidence cast doubt on the 1993
conviction that sent him to death row.
Lawyers from the Missouri attorney general's office disputed those
characterizations and said many of the debated points have already been
litigated.
Clemons, now 41, was one of four men convicted in the murders of Julie and
Robin Kerry, sisters who were raped and forced to leap into the Mississippi
River from the old Chain of Rocks Bridge on April 5, 1991. The women's cousin,
Thomas Cummins, said that he was made to watch and then forced off the bridge
himself. He alone managed to swim to shore.
Under interrogation in 1991, Cummins confessed the crime before recanting. His
statements took center stage today, at the start of an evidentiary hearing to
help determine whether Clemons' death sentence or even conviction might be
overturned.
Clemons' lawyers produced a draft police report of Cummins' statements to
detectives, which differed from a final report that was entered into the record
at Clemons' trial.
In the early version, Cummins is reported to have said he made sexual advances
toward Julie Kerry, who refused him, and that he accidently pushed her off the
bridge while they were arguing. In the final report, the detectives suggest
Cummins harbored sexual feelings toward his cousin, admitted it, and said Julie
Kerry fell on her own.
Also in the 1st version, Cummins says Robin Kerry must have jumped or he pushed
her. In the final report, he says she must have jumped in after her sister.
The draft report contains handwritten notes in the margin from the
then-prosecutor, Nels Moss, in which he seemingly adds a statement from
Cummins, in which he admits, "I did it."
Clemons' attorney, Josh Levine, said the changes to Cummins' early confession
demonstrate "a prosecutor who was intent on getting a conviction at any cost."
More disturbing, he said, was that the draft report was not shared with the
defense until 2010, 17 years after Clemons' trial and a year after Clemons was
scheduled to be executed but granted a stay.
In 1995, Cummins received a $150,000 settlement from St. Louis police on his
claims that a false confession had been beaten out of him. Clemons' attorneys
say the circumstance bolsters Clemons' claims that his confession was also the
result of police brutality.
Sue Boresi, of the attorney general's office, pointed out that Clemons'
attorneys at trial had been allowed to see the draft report, and noted the
judge was also made aware of it. She suggested that Moss' notations were an
attempt to get the facts straight after refusing to issue warrants against
Cummins.
In addition, Boresi said the trial judge had heard Clemons' claim of being
coerced and refused to allow it in evidence.
Another topic in dispute today was a lab report that says no seminal fluid was
found during an autopsy of Julie Kerry's body. The report was never presented
at trial, which Clemons' lawyers now argue was a violation of the Supreme
Court's Brady case ruling that the defense is entitled to evidence favorable to
its side.
Boresi countered that the report did not fall under Brady because Clemons had
only admitted raping Robin Kerry, whose body was never found. Boresi noted that
the medical examiner, Michael Graham, testified at trial that Julie Kerry's
body was moderately decomposed when it was recovered after 3 weeks in the
Mississippi River, making if difficult to find evidence of rape.
DNA testing, not available at trial, has since been performed on a used condom
found on the bridge, the attorneys said. It showed DNA matching the victims,
and which could not exclude Clemons or 1 of his co-defendants.
The Missouri Supreme Court ordered the hearing, which began today, for a 3rd
review of evidence. Judge Michael Manners of Jackson County, appointed as
"special master" on the case, will hear the evidence this week and make a
recommendation later to the state's high court.
One of the suspects in the case has since been executed, another is serving an
life term and a 3rd received early parole in exchange for testimony against the
other 3 defendants.
Clemons came within days of lethal injection 3 years ago, before a federal
appeals court halted the execution.
(source: St. Louis Post-Dispatch)
USA:
Fanning furor, Justice Scalia says appeals court judge lied
U.S. Supreme Court Justice Antonin Scalia on Monday escalated a war of words
with a prominent appeals court judge, saying the judge lied in a recent
criticism of Scalia's judicial philosophy.
Scalia, 76, the longest-serving justice and a leading conservative on the
court, said Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals,
lied in a review in August of a book co-authored by Scalia.
In the review, Posner accused Scalia of deviating from his own strict,
text-based approach to interpreting law when he struck down a District of
Columbia handgun ban in 2008 by considering the legislative history behind the
law.
"To say that I used legislative history is simply, to put it bluntly, a lie,"
Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler.
Scalia and legal scholar Bryan Garner were discussing their new book, "Reading
Law: The Interpretation of Legal Texts," published by West, a unit of Thomson
Reuters.
The 567-page book sets out the legal philosophy, called "textual originalism,"
which says judges should adhere strictly to the text of laws and give them the
meaning understood by the people who adopted them. Laws do not change in
meaning over time, they contend.
The book has sparked a heated debate in legal circles after Posner accused the
authors of making flawed arguments based on sloppy research. Posner said
numerous cases that the authors held up as models of text-based decisions were
influenced by other factors, including judges' personal views.
Scalia fanned that debate on Monday, saying Posner was only able to make such
an assertion because he was writing in a non-legal publication, The New
Republic. "You can get away with it in The New Republic, I suppose, but not to
a legal audience."
Posner declined to comment on Monday night.
As an example of originalism, Scalia said the death penalty was not covered by
the U.S. Constitution's prohibition against cruel and unusual punishment. At
the time that clause was adopted, he said, the death penalty was a standard
punishment for a felony. If people want to ban it, they must amend the
Constitution or vote to abolish it at the state level, he said.
When asked what happens when linguistic analysis of a law conflicts with
existing court decisions, Scalia said that judges cannot reinvent the wheel,
particularly if precedent has been in place for a long time.
"We are textualists. We are originalists. We are not nuts," he said.
One prominent exception to that is Roe v. Wade, the Supreme Court's 1973 ruling
that legalized abortion. He does not consider that binding precedent, he said,
because it was wrong, remains controversial and is an issue better left to
legislators than judges.
What's more, the court's subsequent decisions on abortion are based on the
judge-made theory of "substantive due process," which guarantees certain
fundamental rights like privacy. It's "utterly idiotic," Scalia said.
Scalia said he accepts being frequently on the losing side of Supreme Court
decisions, because that's what it takes to follow his philosophy of sticking to
the letter of the law.
And he said he was happy to be out of the running for the role of chief
justice, with its pressures of having to build a consensus among the nine
justices. Former Chief Justice William Rehnquist had to temper his approach
after being promoted to chief, he said.
"He was a shin kicker. He was very, very opinionated," Scalia said. "He changed
when he became chief. I didn't have to worry about that."
Scalia emphasized that taking a principled approach, rooted in the original
meaning of the text of laws, does not necessarily lead to socially and
politically conservative results, as some have argued.
"I should be the pinup of the criminal defense bar," Scalia said, pointing out
originalist opinions have strengthened defendants' right to a trial by jury and
to confront opposing witnesses.
Scalia acknowledged that today's court can be divided more easily along
political lines than in the past. But he bristled at hearing the court
described as political.
"It really enrages me to hear people refer to it as a politicized court," he
said. His colleagues were appointed because of who they are, and that informs
how they vote, he said.
In its biggest decision of the past term, the Supreme Court on June 28 ruled to
uphold President Barack Obama's healthcare law, handing the president and
fellow Democrats an election-year victory.
In that decision, Chief Justice John Roberts surprisingly joined the court's 4
liberal members to uphold the law's key provision, which requires that most
Americans buy health insurance or pay a tax. Scalia joined in a sharply worded
dissent. Subsequent media reports suggested that tempers had flared between
Scalia and Roberts, reports that Scalia has rejected.
On Monday, Scalia largely steered clear of discussing the healthcare
deliberations and ruling. He did, however, respond to an audience member who
asked about a 1798 law requiring merchant seamen to obtain health insurance.
The federal government has powers over admiralty and shipping that it does not
have over the average citizen, Scalia responded.
When asked about whether television cameras should be allowed in the courtroom
during oral arguments, Scalia said his views on the subject had evolved. When
he first went onto the bench, he thought televising courtroom proceedings would
help educate the American public. Now, he thinks the opposite.
The vast majority of the court's time is spent grappling with the intricacies
of laws like the Internal Revenue Code and the Employee Retirement Income
Security Act, not "contemplating our navel" about the right to abortion, he
said. But people will see a 30-second clip on the nightly news that will give
them a misimpression of the court.
(source: Reuters)
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