The New Jersey Supreme Court's opinion inState v. Feasterleads off this edition. The Court in Feaster addresses serious questions about how forthright the trial prosecutors were at trial, including the real possibility of suggesting to their key witness that he perjure himself. The witness recanted post-trial. The Feaster court, however, side-steps the ultimate issue in the case and remanded for further proceedings, on the narrow issue of why the state apparently threatened the recanting witness with criminal charges should he recant his trial testimony at any post-conviction hearings in the case.

As noted in the last edition, a "what were they thinking moment" moment is noted below featuring the Fifth Circuit. The Fifth Circuit in Murphy v. Dretkedenies relief even after noting that white and black jurors were asked different questions in voir dire by the state, that five of six prospective African-American jurors were struck by the prosecution and that Respondent's acknowledgment the strikes "appear to be 'suspect'." The opinion is written from one of the members of the recalcitrant panel members inMiller-El v. Dretke II. Unfortunately, due to the fact intensive nature of the opinion it is not conducive to excerpting..

In advance of thenext editiona few wins are noted A Fifth Circuit win is reported on juror misconduct,Brooks v. Dretke, concerning a juror who picked up charges during the trial in the county where the crime was being tried. The Third Circuit also granted relief inLaird v. Horn as the trial court failed to adequately explain in its jury instructions that a co-conspirator can not be convicted of first-degree murder under Pennsylvania law absent a shared specific intent to kill.

In the news, Massachusetts Governor Romney's proposed death penalty law, called "foolproof" & "the gold standard" was effectively DOA at the legislative hearing on his bill. "Mark-up" on the Streamline Procedures Act, featured here a few weeks ago, was put off by the Senate Judiciary Committee again this week; with the nomination of Judge John Roberts for the Supreme Court it is unclear whether the Senate will move on the bill this year. Finally, and surprisingly, SCOTUS Judge Roberts has spoken on the death penalty and capital defense practice, those comments at his 2003 confirmation hearing are reprinted below, including his statement, contemplating the Ray Krone's exoneration, "when you're talking about capital punishment, it is the ultimate sanction, and sort of getting it right in most cases isn't good enough."

As always thanks for reading. - k

Executed

July

19 Mike Pennington Oklahoma

Serious X- Dates

July

26 Rickey Newman Arkansas / vol

27 Kevin ConnerIndiana

28 David Martinez Texas

August

4 George Sibley Alabama

10 Gary Sterling Texas

11 Kenneth Turrentine Oklahoma

23 Robert ShieldsTexas

Full edition archived athttp://capitaldefenseweekly.com/archives/050718.htm

Leading Cases

State v. Feaster, 2005 N.J. LEXIS 820 (NJ 7/14/2005) Remand ordered on allegations the State suborned perjury at trial and allegedly threatened the perjurious witness when they tried to recant.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Belmontes v. Brown, 2005 U.S. App. LEXIS 14320 (9th Cir 7/15/2005) On remand from the Supreme Court in light of Brown v. Payton, relief still required due to confusing penalty phase jury instructions.

Decisions Favoring Death

Murphy v. Dretke, 2005 U.S. App. LEXIS 13808 (5th Cir 7/11/2005) Relief denied on an unusually strong Batson claim: white and black jurors were asked different questions in voir dire by the state, that five of six prospective African-American jurors were struck by the prosecution and that Respondent's acknowledgment the strikes "appear to be 'suspect'."

McNair v. Campbell, 2005 U.S. App. LEXIS 14099 (11th Cir. 7/13/2005) "[W]e reverse the district court's grant of McNair's petition on the basis of ineffective assistance of counsel and affirm the district court's denial of the petition on all other grounds.

People v. Wilson, 2005 Cal. LEXIS 7289 (Cal 7/11/2005) Use of witness's prior testimony permissible where defendant had previously had an opportunity to cross-examine the witness & the witness was reasonably unavailable.

State v. Gill, 2005 Mo. LEXIS 239 (Mo 7/12/2005) Relief denied on claims relating to (1) the "murder verdict directors" as whether Gill or his co-defendant shot the victim; (2) the verdict directors for armed criminal action and the use accomplice liability language; (3) failure to plead in tech indictment statutory aggravators; (4) use of "receiving money" aggravator in a case other than a murder for hire; (5) state statute that requires where a challenged juror is stricken by a party there can be no finding of reversible error; (6) victim impact statements; and (6) proportionality.

In re Conklin, 2005 U.S. App. LEXIS 1409 (11th Cir 7/12/2005) Successive petition barred under sec. 2244.

Conklin v. Terry, 2005 Ga. LEXIS 460 (Ga 7/12/2005) Stay denied over dissent.

Outtakes from Opinions of Note

State v. Feaster, 2005 N.J. LEXIS 820 (NJ 7/14/2005) (dissent) Remand order on prosecution suborning perjury at trial and allegedly threatening the recanting witness.

In this opinion, we address only one issue raised by defendant in his PCR petition. At the PCR hearing, defendant intended to call Michael Sadlowski, a key State's witness who had recanted his trial testimony in a certified statement made to defendant's attorneys. Before Sadlowski took the stand at the hearing, the prosecutor indicated to Sadlowski's attorney that there would be "considerations" if he testified consistent with his recantation statement. When called as a witness, [*13] Sadlowski withdrew his certified statement and invoked his Fifth Amendment privilege against self-incrimination. Defendant contends that the prosecutor's thinly veiled threat to prosecute Sadlowski for perjury if he testified in defendant's favor deprived him of a critical witness. We agree. We will not theorize whether Sadlowski would have invoked the privilege even in the absence of a prosecutorial threat. We now hold that the prosecutor substantially interfered with Sadlowski's decision to testify and, therefore, denied defendant a witness who might have supported his claim that he was wrongly convicted and sentenced to death. The prosecutor's interference with that witness's decision to testify violated defendant's state constitutional due process and compulsory process rights.

****

Post-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system. State v. Rue, 175 N.J. 1, 18, 811 A.2d 425 (2002). A PCR hearing in a capital case is not a pro forma exercise, but a meaningful procedure to ensure that the trial that led to a sentence of death was as fair as the lot of humanity permits. Ibid. Not only the defendant, but the "'state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty.'" State v. Martini, 144 N.J. 603, 617, 677 A.2d 1106 (1996) (Martini III) (quoting State v. Koedatich, 112 N.J. 225, 332, 548 A.2d 939 (1988) [*30] (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). Indeed, our interest in the reliability of death sentences carries such weight that we do not permit a capital defendant to waive his right to post-conviction relief. Martini III, supra, 144 N.J. at 616-17.

This Court's jurisprudence has underscored the importance of fair play at every stage of a capital proceeding. We are mindful that a death sentence is "'profoundly different from all other penalties,'" State v. Ramseur, 106 N.J. 123, 326, 524 A.2d 188 (1987) (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978) (plurality opinion)), cert. denied sub nom. Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993), and of the heightened "'need for reliability in the determination that death is the appropriate punishment in a specific case.'" Ibid. (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976)). The prosecutor has a "special duty to seek justice" in a capital case, and [*31] "conduct that falls short" of that duty must be "scrupulously reviewed." Feaster I, supra, 156 N.J. at 59 (citing State v. Biegenwald, 106 N.J. 13, 40, 524 A.2d 130 (1987) (Biegenwald II)).

An accused in a criminal case has a constitutional right to present witnesses in his defense, pursuant to the due process and the compulsory process provisions of the federal and state constitutions. N.J. Const. art. I, PP 1, n3 10; see also U.S. Const. amends. V, VI, XIV � 1. "The right to offer the testimony of witnesses, and to compel their attendance, . . . is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967). In a capital case, the need for compulsory process of a recanting witness at a post-conviction relief hearing should be self-evident. See N.J. Const. art. I, P 10. The suggestion that even a well-intentioned prosecutor intimidated a key defense witness in a capital case into refusing to testify [*32] at a PCR proceeding requires close examination. n4

In an adversarial criminal proceeding, the "search for truth" is not well served when the State attempts to fortify its case "by sealing the lips of witnesses." State v. Fort, 101 N.J. 123, 131, 501 A.2d 140 (1985). The basic premise of our judicial system is "'that the fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice. [*33] '" State v. Jamison, 64 N.J. 363, 375, 316 A.2d 439 (1974) (quoting In re Richardson, 31 N.J. 391, 396, 157 A.2d 695 (1960) (internal quotations omitted)). With that principle in mind, a defendant's due process rights are violated when there is "substantial government interference with a defense witness' free and unhampered choice to testify . . . ." United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir. 1979) (internal quotations omitted), reh'g granted, 605 F.2d 862, 864 (5th Cir. 1979) (modifying remand to permit defendant to choose between having new trial or accepting prior judgment); see also Newell v. Hanks, 283 F.3d 827, 837 (7th Cir. 2002) (same); United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998) (same); cf. Lambert v. Blackwell, 387 F.3d 210, 260 (3d Cir. 2004) ("In order to violate the Constitution, the government's conduct must have 'substantially interfered' with a witnesses's [sic] choice to testify.").

We have admonished both trial judges and prosecutors when they have improperly interfered with a defendant's right to call witnesses in [*34] his own defense. In Jamison, supra, the trial court substantially interfered with a defense witness's decision to testify. 64 N.J. at 374-77. The witness, who had previously given a statement to the prosecutor implicating the defendant, was prepared to confess to the crimes for which the defendant was on trial. Id. at 368-69. The trial judge advised the witness, while sworn and on the stand, "(a) that his statements would be used against him; (b) that he had a right to assigned counsel; (c) that he had a right to remain silent; and (d) that he could receive 21 years for the offenses and would 'probably' be so sentenced if before the judge." Id. at 369. The judge also "directed that a public defender" represent him. Id. at 369-70. After consulting with assigned counsel, the witness had a change of heart and denied that he had committed the crime. Id. at 370. When the defendant called the witness to testify, he asserted his Fifth Amendment privilege. Id. at 371-73.

We disapproved of the trial judge's interference and held that the "first concern of the court should [*35] have been the free flow of evidence for the enlightenment of the jury in that trial." Id. at 376. We further noted that "the wise judicial course would have been, and ordinarily will be, to leave the matter of suspicion of criminality attendant upon the actions of the prospective witness to the prosecutor, for such attention at the conclusion of the case as he might deem warranted." Ibid. (emphasis added). In reversing the defendant's conviction, we observed that "there should have been weighed in the balance the more immediate interests of the defendant on trial and those of the general public to the fullest disclosure of the relevant evidence before the trial jury before any solicitude for protection of the volunteering witness." Id. at 377.

****

Sadlowski had alleged in his certified statement to defendant's attorney that he gave false testimony at defendant's trial as a result of promises of favorable treatment by an investigator and assistant prosecutor. Given the nature of Sadlowski's expected finger-pointing at the trial prosecutor and investigator, it was unseemly for the PCR prosecutor [*51] to issue a threat that had the effect of sealing Sadlowski's lips. The State, obviously, believed that Sadlowski had completed the crime of perjury or false swearing when he signed his sworn recantation. The PCR prosecutor had the authority to deal with any indication of false swearing "at the conclusion of the case as [she] might [have] deemed warranted." Jamison, supra, 64 N.J. at 376. The prosecutor should have considered that the court was entitled "to the fullest disclosure of the relevant evidence . . . before any solicitude for protection of the volunteering witness." Id. at 377.

That the PCR prosecutor may have acted in good faith to spare Sadlowski a second round of false swearing is not a valid basis for choking off the " free flow of evidence for the enlightenment" of the court. Id. at 376. Such an approach does not advance the truth-seeking function of a trial or a PCR hearing. We have confidence that our courts and juries are capable of detecting falsehoods with the aid of the adversarial process. The State can prosecute those who commit perjury or false swearing; the State simply cannot threaten a defense witness [*52] to keep him off the stand.

The annals of the criminal law are filled with countless examples of witnesses who have recanted their trial testimony, despite the potential jeopardy in which they have placed themselves. See, e.g., State v. Ways, 180 N.J. 171, 186-87, 850 A.2d 440 (2004); State v. Carter, 69 N.J. 420, 426-27, 354 A.2d 627 (1976); State v. Puchalski, 45 N.J. 97, 99-100, 211 A.2d 370 (1965). We do not share the dissent's absolute confidence that Sadlowski would have invoked the privilege regardless of the prosecutor's comments, post at ___ (slip op. at 19), which both the PCR court and the State acknowledged conveyed the threat of a possible perjury prosecution.

We cannot know whether Sadlowski would have testified consistent with the contents of his certified statement under different circumstances. Like the courts in Morrison, supra, and Shapiro, supra, we will not speculate that the witness would have invoked his Fifth Amendment privilege regardless of the State's threat. We, therefore, must presume that the PCR prosecutor's threat made the witness unavailable to testify. [*53]

We hold that the State may not use threats or intimidating tactics that substantially interfere with a witness's decision to testify for a defendant. n11 Such conduct, even if motivated by good faith, cannot be tolerated, particularly in a capital case. We conclude that defendant's due process and compulsory process rights were violated under our state constitution and that the outcome was not harmless to defendant. n12

Focus

Remarks by Judge Roberts testimony at his 2003 confirmations hearingsas they relate to the deth penalty are repeated below. Discussion of his views on other criminal law and sentencing issues immediately preceed this excerpt from the transcripts.

[Question by Senator FEINGOLD] In response to a written question from Senator Durbin, you stated that you have assisted your colleagues at Hogan & Hartson in the firm's representation of an inmate on Florida's death row. Could you tell me more about that case, and your involvement and what was the outcome?

Mr. ROBERTS. Well, he is still alive. That is sort of the goal in representing inmates facing the death penalty. I'm certainly not' don't have lead responsibility in the case.

What happened, and this was some years ago, a motion was being made in connection with one of his many sentences, and I was asked to assist in reviewing the motion. It had moved up to an appellate stage, and that was my specialty, and I looked at that and worked on that motion. I think it actually was not successful, but the long-term representation, as I said, he's still with us.

Senator FEINGOLD. Well, I congratulate you on your involvement in this. You and your firm represented the Florida death row inmate pro bono. Hogan & Hartson, of course, has enormous resources and is one of the best law firms in the Nation. Of course, not all death row inmates are lucky enough to secure such talented, well-resourced representation, especially at the trial stages of a capital prosecution. And I understand that law firms like yours typically don't get involved in capital cases until the appellate stage.

Given your experience with that case, do you believe that all capital defendants receive adequate legal representation in the current death penalty system, and are you concerned that poor defendants may not receive adequate legal representation, especially at the trial level of a capital case?

Mr. ROBERTS. I don't know sufficiently what the situation is with respect to appointed counsel. I have certainly seen the cases where the counsel, whether attained or appointed, has been inadequate. I mean, some of them, you know, where the counsel was asleep or not present or the type of conduct, even apart from whether particular motions were made or not.

So the answer to your question is, no, it certainly can't be the case that in all cases they receive adequate representation. I have.

Senator FEINGOLD. Does it rise to a level where you have concerns?

Mr. ROBERTS. Well, certainly. If you're in a capital case and the lawyer is asleep, of course. I have long been of the view that whether you're in favor of the death penalty or opposed to it, the system would work a lot better, to the extent that defendants have adequate representation from the beginning. The reason a lot of these cases drag out so long is because you spend decades scrutinizing the conduct of the lawyer in the initial case. If you make sure that there is adequate representation in the beginning, that should obviate the necessity for that, in most cases.

Senator FEINGOLD. Finally, on this issue, and my last question, as you may know our Nation last year reached a troubling milestone. Over 100 death row inmates have now been exonerated in the modern death penalty era'people who were actually on death row, having been sentenced to death. What is your sense of the fairness of the administration of the death penalty in our Nation today' Do you think that the current system is fair or do you agree with an ever-increasing number of Americans that it risks executing the innocent?

Mr. ROBERTS. I think one thing that is unfair about the system is that it is not, and I believe this is one of the Supreme Court cases saying that it would be applied this way, it's not certain, it's not definite, and there doesn't seem to be any reasonable time limitation. The effectiveness, if you believe in capital punishment, the effectiveness of capital punishment diminishes if the crime was committed 30 years ago. And if it takes that long to get through the system, it's not working, whether you're in favor of the death penalty or opposed to it.

Senator FEINGOLD. But what about the fact that 100 people have been exonerated, who were already sentenced to death, how do you feel about that?

Mr. ROBERTS. Well, obviously, the first reaction is that the system worked in exonerating them. I don't know the details of the particular cases, but if they've been exonerated, that's how it's supposed to work.

Senator FEINGOLD. Is it your guess that we've gotten all the ones that are innocent on death row?

Mr. ROBERTS. Of course, it causes concern whenever somebody gets to that stage. It would be important to know at what stage it is. If it's on direct review, you feel a little more comfortable about it. If it is something coming out years later that should have come out before, that does cause some degree of discomfort. Because, of course, when you're talking about capital punishment, it is the ultimate sanction, and sort of getting it right in most cases isn't good enough. I agree with that.

P74 in the adobe reader, page 62 of the transcript

Around the Web

DPICnotes:

Massachusetts Governor's Proposed Death Penalty Law Meets Strong Opposition at Hearing

Massachusetts Governor Mitt Romney recently testified that the proposed "foolproof" death penalty statute he hopes will bring capital punishment back to the state does not eliminate the possibility that an innocent person could be executed. Romney acknowledged to members of the joint House and Senate Judiciary Committee that the proposed law cannot protect the state against the potential for human error, stating, "A 100 percent guarantee? I don't think there's such a thing in life. Except perhaps death - for all of us."

Representative Michael A. Costellow, one of the lawmakers who questioned Romney during the hearing, said that the Governor's admission "does knock out the initial premise" that the plan is foolproof, adding, "I think they put the best and the brightest together to try to come up with a foolproof policy, and it isn't foolproof."

Massachusetts is one of 12 states that does not have the death penalty. The last execution in the state was in 1947. (Boston Globe, July 14, 2005). Almost all of the testimony presented at the hearing opposed the governor's bill. Romney's response to many of the criticisms of the proposed law was that the threat of execution would at least lead to more plea bargains to life sentences. Some objected that it might also lead to innocent people pleading guilty to avoid the death penalty. Read testimony given by DPIC's Executive Director, Richard Dieter, during the Massachusetts hearing. See also Innocence.

POSSIBLE INNOCENCE: Doubts Linger About Guilt of Arizona Juvenile Offender

More than a decade after juvenile offender Martin Soto Fong and two other men were tried and sentenced to death in Arizona, questions about Fong's guilt linger and are underscored by the fact that he is the only one of the three men to remain convicted of the crime. The prosecutor who won their convictions, Kenneth Peasley, was disbarred last year for intentionally eliciting false testimony to win capital murder convictions in the re-trials of Soto's co-defendants, Christopher McCrimmon and Andre Minnit. McCrimmon was aquitted in a retrial and Minnit was released when the Arizona Supreme Court vacated his conviction.

In ordering Peasley's disbarment, a rarity for someone of his stature, the state Supreme Court stated, "We cannot conceive of a more serious injury, not just to the defendants but to the criminal justice system, than a prosecutor's presentation of false testimony in capital murder cases." Though Fong was removed from death row after the Supreme Court outlawed the execution of juvenile offenders earlier this year, he remains in jail and those familiar with Peasley's misconduct believe Fong may be innocent. "I do not believe McCrimmon and Minnit did this. I have seriously strong doubts about Fong," notes Karen Clark, the State Bar of Arizona attorney who headed the effort to disbar Peasley. Clark states that among the problems with Soto's case are 2 police reports covering the same anonymous tip that name different suspects. (Associated Press, July 18, 2005). See Innocence.

NEW VOICES: Former Texas Death Row Chaplain - In His Own Words

The Reverend Carroll Pickett, former chaplain on death row in Texas:

Ninety-five times, I personally walked a man who was sentenced to die to the death chamber in Texas. From the very first person executed by lethal injection, through 16 years of walking those eight steps from the holding cell in the death house to the impeccably clean gurney in the death chamber, I led a man - some were older, some convicted in their teens, some mentally ill, some very hardened by life and, I fully know, some who were innocent.

Each one was different. They were brought to my unit early in the morning, usually, to be held for death at midnight, so I was with them for 18 hours, and in some cases even longer if their cases went to appellate courts and stays were held until 3, 4 or 5am - or the latest which was 6.20am the next day.

More than 200 men came to the death chamber in my time as chaplain there, and of those, 95 were murdered by the state in the name of "justice", but in all reality, it was "retaliation" or "punishment" or simply "murder by law".

During those many hours I spent talking with, mostly listening to, the men who would die after midnight when needles filled with three chemicals were inserted into their bodies, there was one question that was asked by many of those waiting to die: "How can we say that killing is wrong if we continue killing in the name of the state?"

( Edinburgh Evening News, July 18, 2005, quoting The Reverend Carroll Pickett, author of Within These Walls: Memoirs of a Death House Chaplain).

Criticism of "Streamlined Procedures Act" Grows

A variety of legal experts and national organizations have expressed strong concerns about a bill introduced in Congress that would greatly limit federal review of death penalty cases.

The American Bar Association called for rejection of the legislation:

S. 1088 should not be enacted. Its primary effect would be to insure that the federal courts did not hear compelling claims – including claims of actual innocence. Any possible gain in speed would be offset by the certain loss of justice. As the ABA has long advocated, true reform lies in the direction of eliminating the technical barriers whose elaboration now occupies so much of the time of the federal courts dealing with habeas corpus petitions in favor of having those courts promptly reach the constitutional merits.

(Statement of Prof. Eric Freedman on behalf of the ABA before the Senate Judiciary Committee, July 13, 2005 (executive summary)). The New York Times editorialized about the repercussions that the bill could have:

Congress is quietly considering whether to destroy one of the pillars of constitutional law: the habeas corpus power of the federal courts to determine whether an indigent defendant has been unjustly sentenced to death in state courts.

A bill making alarming progress in committee would effectively strip federal courts of most review power and shift it to the attorney general. That's right: the chief prosectuor of the United States would become the judge of whether state courts behave fairly enough toward defendants appealing capital convictions. If a state system was certified as up to snuff, then the federal courts would lose their jurisdiction and condemned defendants their last hope.

It is appalling that lawmakers would visit such destruction on a basic human right that's been painfully secured across three centuries of jurisprudence.

(N.Y. Times Editorial, "Court Gutting in Congress," July 16, 2005). Prof. Barry C. Scheck of the Cardoza Law School and co-director of the Innocence Project also testified before the Senate Judiciary Committee regarding the bill:

It would bury the truly innocent under a welter of state and procedural bars. It would undermine efforts to raise the low standard of representation of the indigent tolerated by state courts. And inevitably, by keeping the innocent in prison and out of court, it will leave the real perpetrators free to commit more crime.

(Testimony of Prof. Barry Scheck, Senate Judiciary Committee, July 13, 2005).

See also Representation.

Around the blogs

Abolish the Death Penalty Blognotes:

When will they ever learn?

Massachusetts Gov. Mitt Romney, a likely candidate for the 2008 Republican presidential nomination, is not getting very good ink in response to his efforts to reinstate the death penalty in his state. Here's an example:

No guarantees in life - or in death penalty

Gov. W. Mitt Romney told lawmakers Thursday that his proposal to reinstate the death penalty comes with a guarantee that no innocent person would ever be executed in Massachusetts if his bill becomes law.

"This is as foolproof a death penalty as exists, and you will not have false convictions and false executions under this bill," the governor told the Judiciary Committee. "This won't happen."

If lawmakers believe that, we've got a tunnel in Boston we could sell them.

Since 1973, 119 convicted murderers in 25 states have been freed after evidence surfaced that they had been wrongly convicted, according to the Death Penalty Information Center.

Earlier this month, a prosecutor in Missouri said she will reopen the case of convicted murderer Larry Griffin after receiving evidence of his possible innocence - 10 years after he was executed by lethal injection.

Romney believes his bill has safeguards to prevent such mistakes, including a requirement for conclusive scientific evidence such as DNA analysis.

The death penalty, however, can never be made foolproof, as Romney later acknowledged when pressed by lawmakers.

A commission created by George Ryan when he was governor of Illinois concluded in 2002 that "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death."

2 years ago, Romney vetoed funds approved by the Legislature to create a Department of Forensic Sciences - just the type of department that would be necessary to provide the strict burden of proof that the governor promises in his bill.

In addition, the state's crime laboratory, medical examiner's office and local police departments are not funded at the levels needed to ensure that only the guilty are executed.

This newspaper has long opposed the death penalty, and will continue to speak out against it each time an attempt is made to reinstate it in Massachusetts. The death penalty does not deter violent crime; it unfairly targets blacks and other minorities, and it relies on a judicial system that, while the best in the world, is not perfect.

There are no guarantees in life - or in the death penalty.

'We have become what we hate'

Ran across this letter to the editor in the Rutland Press in Vermont. It is in response to the federal death sentence handed down to Donald Fell. Vermont becomes the third state (joining Massachusetts and Iowa) that has recently seen a federal death sentence handed down even though it has no state death penalty statute.

Will we rest better if Fell dies?

Today, the jury sentenced Donald Fell to death for the brutal murder of Tressa King, an innocent woman with a family who loved her, who was just going to work.

Will we rest better now because we will kill Fell? Is his death about punishment or vengeance? Those of us who oppose the death penalty have sympathy for King's family and are horrified by the violent way she died.

My opposition to the death penalty automatically makes me an enemy of King's family. My empathy for her and sorrow for her family are lost in a fierce debate over whether the death penalty is a viable choice in a civilized society.

It is the same old battle cry. We kill to teach that killing is wrong, and we all become complicit in Fells' execution because we live in the state. My money will kill Fell. People will not stop killing people because we kill Fell.

What is worse is that those who imposed the death penalty won't have to be the ones who kill him. Someone else will do that for them.

We have become the thing we hate and that scares me.

Sandra Nall----Montpelier

Monday, July 18, 2005

As a minister in Texas' prison system, Reverend Carroll Pickett was present at 95 executions in Texas, including one I was unfortunate enough to witness. His book Within These Walls: Memoirs of a Death House Chaplain, will be published later this month. An interesting op-ed by Rev. Pickett just popped up in my email box. It starts off like this:

NINETY-FIVE times, I personally walked a man who was sentenced to die to the death chamber in Texas. From the very first person executed by lethal injection, through 16 years of walking those eight steps from the holding cell in the death house to the impeccably clean gurney in the death chamber, I led a man - some were older, some convicted in their teens, some mentally ill, some very hardened by life and, I fully know, some who were innocent.

Each one was different. They were brought to my unit early in the morning, usually, to be held for death at midnight, so I was with them for 18 hours, and in some cases even longer if their cases went to appellate courts and stays were held until 3, 4 or 5am - or the latest which was 6.20am the next day.

More than 200 men came to the death chamber in my time as chaplain there, and of those, 95 were murdered by the state in the name of "justice", but in all reality, it was "retaliation" or "punishment" or simply "murder by law".

During those many hours I spent talking with, mostly listening to, the men who would die after midnight when needles filled with three chemicals were inserted into their bodies, there was one question that was asked by many of those waiting to die: "How can we say that killing is wrong if we continue killing in the name of the state?"

To read the whole thing, go here.

Bringing back Napolean Beazley

Napolean Beazley is one of the last juvenile offenders to be executed by the state of Texas before the U.S. Supreme Court outlawed the death penalty for juveniles.

Just this week, a new play chronicling the life and death of Napolean opened in Austin. The Austin Chronicle has an amazing story about the play. It's a bit of a long read (and certainly too long to post here) but I highly recommend it. I don't want to do the piece a disservice by excerpting from it. So go here.

Sentencing Law & Policynotes

Talk Leftwrites:

Death Row Inmate OD's on Heroin

California death row inmates are alone and locked in their cells 20 of 24 hours a day. So how would one geta syringe and heroin?

A convicted murderer awaiting execution at San Quentin State Prison has died of an apparent heroin overdose -- making him California's first inmate to OD on Death Row.

Michael Camacho, theL.A.deputy district attorney who prosecuted Rodriguez for the 1999 crimes, said the apparent overdose didn't surprise him. Rodriguez had a history of drug use, he said, and drugs are easy to get in prison -- even on Death Row. "The accessibility of narcotics is rampant in the Department of Corrections, even though they would prefer not to admit it,'' Camacho said.

THE SMALL PRINT

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