Leading off this week is United States v. Green. Although just a federal district court opinion the opinion is a good glimpse in what can be done to get two separate juries for the guilt-innocence and penalty phase. Key in the opinion is the analysis of how death qualification of a jury would result in a jury made up disproportionately of white men. In dicta the Court also suggests that it has deep concerns about recent studies linking death qualification to an increased likelihood of conviction.

Other wins noted this week include Busby v. Florida where the trial court improperly denied Busby’s challenge for cause against a juror whose responses during voir raised doubt as to his fitness to serve as juror. The Sixth Circuit in Mapes v. Tate grants relief on an appellate ineffective assistance counsel claim after counsel for Mapes failed to present a claim relating to limitations placed on the presentment of mitigation evidence. Finally, the Washington Supreme Court in In re Davis vacates the Defendant's death sentence after the jury had observed him in chains.

Elsewhere, in Tennessee the execution of Donnie E. Johnson has received a stay pending the resolution of the Sixth Circuit's en banc hearing in Abdur 'Rahman v. Bell. (Motion for stay./ Motion for Relief). In Ohio an unexpected coalition of Republicans and Democrats joined together in the Ohio House to approve a bill requiring an in-depth study Ohio's capital punishment system.

As always, thanks for reading. - k

Archived on the internet at http://capitaldefenseweekly.com/archives/041108.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

SUPREME COURT

The Court this week heard oral argument in Brown v. Payton as to the definition of "unreasonable application" for purposes of the AEDPA. Here the California Supreme Court held the trial court's use of the “catch-all” mitigation instruction was all that was needed to permit juror's to consider evidence of his post-arrest conversion to Christianity and his “good works” in jail. The Ninth Circuit held that this was unreasonable. Reports from the Court make it a hard read on which way the justices are leading.

CAPITAL CASES (Favorable)

United States v. Green, et.al., 2004 WL 2475483 (D.MA 11/3/2004) Granting use of dual juries for guilt-innocence & penalty phase. FDPRC has the briefs.

Busby v. Florida, 2004 WL 2471387 (FL 11/4/2004) (dissent) Relief granted as the trial court improperly denied Busby’s challenge for cause against a juror where juror's responses during voir dire to questions regarding his ability to be impartial raised reasonable doubt as to his fitness to serve as juror.

Mapes v. Tate, 2004 WL 2452457 (6th Cir 11/2/2004) Appellate counsel was ineffective for failing to raise a preserved issue concerning sentencing court's jury instruction that precluded the jury from considering mitigating evidence regarding defendant's prior murder conviction.

In re Davis, 2004 WL 2473459 (Wash 11/4/2004) Penalty phase verdict must be vacated due to the jury observing the defendant in shackles. A similar issues is before the United States Supreme Court in Deck v. Missouri, 04-5293.

CAPITAL CASES (Other Than Favorable)

Sepulvado v. Louisiana Bd of Pardons and Parole, 2004 WL 2491678 (5th Cir 11/5/2004) (unpublished) Affirming the dismissal, for lack of standing, of claim that the clemency process of the Louisiana Board of Pardons and Parole does not meet minimal due process standards. Court does not reach whether the issue is properly raised in a sec. 1983 challenge or in a habeas petition.

McKaney v. Foreman, 2004 WL 2451738 (AZ 11/2/2004) (dissent) Noting a split in jurisdictions, but overwhelmingly in support of the state’s position, neither indictment nor information needs to specify aggravating factors in support of death penalty, even if an aggravating factor is the functional equivalent of an element of the offense.

Thorson v. Mississippi, 2004 WL 2479893 (Miss.) Relief denied most notably on claims including: (1) sufficiency of evidence; (2) not suppressing Thorson's confession; (4) Batson, (5) failure to provide a full panel of jurors; (6) admission of certain exhibits; (7) failure to provide an expert on interrogations and confessions; (8) refusal to permit defense to be present during court-ordered mental health evaluation; (9) submission of the avoiding arrest / effecting escape aggravator; (10) use of HAC aggravator; (11) applicability of Ring to state statute; (12) unanimity instructions; (13) purported limitations on mitigation; (14) not giving requested defense instructions on weighing, mercy, default for innocence instruction, and mere suspicion instruction; as well as, (15) "send a message closing" in penalty and other prosecutorial misconduct.

Winston v. Virginia, 2004 WL 2480948 (VA 11/5/2004) Relief denied on issues concerning appointment of defense experts, seating and removal of jurors, admission of evidence, in-court identification testimony, jury instructions and verdict forms, malice, concerted action/joint participation, depravity of mind, lesser included offenses, as well as sufficiency of the evidence, double jeopardy, and mental retardation issues.

United States v. Bodkins, et.al., 2004 WL 2491615 (W.D.VA 11/5/2004) Federal death penalty prosecution trial court order granting defendant’s discovery motion, denying motions for pre-authorization disclosure, and denying, in part, government’s motion to quash subpoenas directed at state law enforcement agencies including state crime lab.

OTHER NOTABLE CASES

United States v. Manning, 2004 WL 2496456 (N.D. Ill 11/5/2004) Suit against numerous federal actors as to misconduct in the wrongful conviction and death sentence of Manning.

HOT LIST

United States v. Green, et.al., 2004 WL 2475483 (D.MA 11/3/2004) Granting use of dual juries for guilt-innocence & penalty phase. FDPRC should have the briefs.

Defendants' claims raise the following questions:

1) Does 18 U.S.C. § 3593 require that the guilt/innocence jury and the punishment jury be one and the same?

2) If the punishment jury must be "death-qualified," does it follow that the guilt/innocence jury also must be "death-qualified"?

3) Can the defendant waive rights under § 3593 over the government's objection?

4) If these rights can be waived, how can the government's interests be protected?

II. LEGAL FRAMEWORK

A. 18 U.S.C. § 3593 Only Requires a Bifurcated Proceeding; it Does Not Mandate a Unitary Jury

1. Gregg v. Georgia

In Gregg v. Georgia, 428 U.S. 153, 190-91, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court held that the Constitution requires a bifurcated proceeding in a death penalty case, one to determine guilt and the other to determine punishment. A single proceeding to resolve both issues, the Court found, had serious constitutional flaws. For example, the government would be obliged to introduce highly prejudicial evidence (like criminal record) that is not otherwise admissible. Limiting instructions would be inadequate to cure the prejudice suffered by the defendant. As the Court noted: "When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman v. Georgia [408 U.S. 238 (1972) ]." Id. at 191-92.

*4 Gregg, however, did not address the issue of whether that bifurcated proceeding had to be held before a single jury or two juries. The Georgia statute which the Court reviewed involved a unitary jury, with a penalty phase immediately following a liability phase. [FN4] The issue before this Court was not raised.

2. Death Qualification

Long before Gregg and the bifurcated jury requirement, it was a "nearly universal" practice for a state to permit the broad exclusion of veniremen with conscientious scruples against capital punishment. [FN5] In Witherspoon the Court scrutinized this practice, narrowing what "death qualification" meant. The Court vacated the sentence of a defendant from whose jury the state had excluded all venire persons expressing any scruples against capital punishment. Such a practice, the Court held, created a "tribunal organized to return a verdict of death." Witherspoon, 391 U.S. at 541. The only jurors who could be excluded were those who "made unmistakably clear ... that they would automatically vote against the imposition of capital punishment," or that they could not assess the defendant's guilt impartially. Id. at 522-523 n. 21.

But again, Witherspoon and its progeny, Wainright, did not address the question before me--whether the Court is obliged to death-qualify a unitary jury. While the Court raised concerns about the practice, and suggested two juries, it did not resolve the issue.

3. Unitary Jury Versus Two Juries

In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Court finally addressed, albeit indirectly, the question of whether the Constitution permits or prohibits a unitary jury or dual juries. In Lockhart the court concluded that the practice of death-qualifying the unitary jury did not violate a defendant's rights. [FN6] See also Buchanan v. Kentucky, 438 U.S. 402 (1987)(finding that the use of death-qualified jury for a joint trial in which the death penalty was sought only against one defendant did not violate the Sixth Amendment right to an impartial jury). Death-qualification of the unitary jury, in short, on the record then presented to the Court, [FN7] did not raise constitutional issues.

But that conclusion did not suggest its opposite, which the government argues here--that a court must have a unitary jury, that the unitary jury must be death-qualified in all cases, and indeed, that the government has a right to a death-qualified unitary jury. The precise question in Lockhart was whether "the Constitution prohibit[s] the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial." Id. at 165. The Court held that the Constitution did not prohibit the removal of death penalty opponents for cause. Importantly, it did not hold that the Constitution requires the removal of death penalty opponents prior to the guilt phase.

*5 Indeed, dicta in Witherspoon supports the view that a unitary jury is not mandated. In Witherspoon, the Court addressed the state's interest "in submitting the penalty issue to a jury capable of imposing capital punishment" on the one hand, and the defendant's "interest in a completely fair determination of guilt or innocence," on the other. The Court suggested that one way to accommodate these concerns was to use one jury to decide guilt and another to fix punishment. Witherspoon, 391 U.S. at 520 n. 18. [FN8] While the Lockhart court ultimately concluded that that accommodation was not mandated by the Constitution, [FN9] nothing in the decision suggests that a court could not implement it in an appropriate case. In any case, the fact that the Court did not find a violation of defendant's constitutional rights, and thus, that there was no need to accommodate those rights with the state's concerns, did not somehow "constitutionalize" the state's interest in the quickest and most efficient capital trial.

4. § 3593 Does Not Require a Unitary Trial; to the Extent it Can Be So Interpreted, the Requirement Can Be Waived

The relevant statute, 18 U.S.C. § 3593, seems to reflect the long-standing practice of a unitary jury. It provides that the capital sentencing hearing "shall be conducted (1) before the jury that determined the defendant's guilt," or (2) "before a jury impaneled for the purpose of the hearing if ... the jury that determined defendant's guilt was discharged for good cause." 18 U.S .C. § 3593(b).

The government argues that there is no authority for the proposition that the court can decide in advance to discharge the guilt jury before the sentencing hearing for "good cause." See 18 U.S.C. § 3593(b)(2)(C). [FN10] Defendants argue that "evidence of systematic error" in administering the death penalty, particularly where a defendant was convicted by a death-qualified jury, rises to the level of "good cause" for dismissing the liability jury and impaneling a separate sentencing jury.

[1] In any event, whatever rights accrue to the defendant under § 3593 can be waived. In effect, by objecting to death-qualifying the guilt jury, defendants are waiving the provisions of § 3593 that arguably oblige the Court to hold guilt and punishment trials before the same jury. [FN11]

If the right to appeal from a sentence can be waived along with a long list of other rights, surely § 3593 rights can be waived. See, e.g., United States v. Teeter, 257 F.3d 14 (1st Cir.2001) (presentence waivers of appeal right are presumptively valid if knowing and voluntary.)

a. Government's Rights to a Fair Jury Will Not Be Violated by a Dual Jury Procedure

[2] In my first decision I indicated that the government did not have a right to a death-qualified jury to hear the question of guilt. The government responded that it has the "right to have a jury of fair minded citizens who are able to apply the law Congress has enacted." And it cites as an example, "a juror does not have to agree with the drug laws in order to sit on a jury for a drug case, but his or her feelings about the drug laws must not be such as to prevent them from fairly rendering a verdict based on the evidence."

*6 [3] But following with the drug analogy: The government has a right to question a juror about whether he agrees or disagrees with the prosecution of individuals for drug offenses. They plainly would not have the right to question a juror about whether he or she thinks 20 years is too long for someone convicted of the crime. In the ordinary case, voir dire does not and should not include questioning about punishment, e.g., what a juror's feelings are about convicting of "x" crime if it results in "y" sentence. Neither should the liability jury voir dire here.

Witherspoon and Wainright involved a unique series of questions geared to a juror's ability to impose the death penalty--whether views about the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright, 469 U.S. at 424 (internal citations omitted). The liability jury will not be deciding whether to impose the death penalty, any more than an ordinary jury would. [FN12]

Indeed, in the usual criminal case, courts are scrupulous about avoiding telling jurors about punishment. In Pope v. United States, 298 F.2d 507 (1962), for example, the Court stated, "To inform the jury that the court may impose minimum or maximum sentence ... or other matters relating to disposition of the defendant, tend to draw the attention of the jury away from their chief function as sole judges of the facts, open the door to compromise verdicts and to confuse the issue or issues to be decided ." Id. at 508; see also Shannon v. United States, 512 U.S. 573, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). [FN13]

Indeed, the observations of Shannon and Pope apply with special force here, given the data on the "conviction proneness" of death-qualified juries, on the one hand, and the Court's concerns about jury nullification in Wainright and Witt on the other. If the liability and punishment functions are separated, there is no reason to risk prejudice to either side by death-qualifying a jury addressing only the former.

b. The Government's Concerns about Cost, and Impact of Multiple Proceedings on its Witnesses Can Be Accommodated Through Other Means

[4] The government argues that it is unfair to require its witnesses to participate in multiple proceedings. As I noted in my memorandum on severance, multiple liability proceedings are already required here because of the scope and complexity of the government's indictment--five defendants, a racketeering conspiracy spanning 15 months, antagonistic defenses, co-conspirator's statements.

It is premature to conclude that there will be a need for a punishment phase at all. The capital defendants have a substantial defense--whether the Esmond Street Posse is a gang at all, and whether whatever it is meets the requirements of RICO. While many defendants may make similar claims, these defendants have support for their position in Judge Wolf's findings in Modlin. See Green, 324 F.Supp.2d at 321 n. 16. Moreover, even if Esmond Street were found to be a gang and a racketeering enterprise, the defendants' submissions suggest that there will be defenses to the claim that the murders at issue were in furtherance of that enterprise, or motivated by some other concern. [FN14]

*7 The government concedes the fact that death-qualification of the punishment jury would add substantially to the time it takes for the Darryl Green/Hart trial and the Morris/Washington trial. Indeed, the government's view of what death-qualification requires substantially underestimates the time it will take in a case with multiple defendants and counsel. In a system using separate juries for guilt and penalty phases, time and resources would be saved every time a capital case did not require a penalty phase. It is entirely appropriate for this Court to avoid devoting such substantial resources to jury selection prior to the guilt phase when a "not guilty" verdict as to the murder count would render death-qualification unnecessary.

To be sure, the government plainly has an important interest in avoiding the unnecessary repetition of the trauma, fear, and risk associated with testifying for witnesses and victims of the charged violence. But that concern can be accommodated in a variety of ways, such as stipulated summaries of evidence, transcripts and videoconferencing. See, e.g., Bruce Winick, Prosecutorial Peremptory Challenge Practices in Capital Case: An Empirical Study and a Constitutional Analysis, 81 Mich. L.Rev. 1, 57 (1982).

B. Unique Complexity of Death-Qualifying a Massachusetts Jury

[5] As I noted in my initial order, studies suggest that death-qualification leads to the exclusion of a disproportionate number of black and female jurors, especially in this Commonwealth. Defendant's preliminary data suggests that African-Americans are under-represented in the jury venire [FN15] in the Eastern Division of Massachusetts, by as much as half their representation in the community--particularly that 7.8%--9.1% of residents in the Eastern Division of Massachusetts are in whole or in part African-American, that a significantly smaller percentage are included in the jury venire, that in the United States population 48% of black people (but only 22% of whites) oppose the death penalty, and that 45% of Massachusetts voters overall oppose the death penalty. See Green, 324 F.Supp.2d at 329. Death-qualifying a jury could significantly deplete the already paltry number of minority jurors in the Eastern District.

Initial data gathered by defendants [docket entry # 56] indicates that economic status and racial compositions of cities are closely connected to the return rates of the local census, which determines which names are placed on the Master Jury Wheel. Defendant Branden Morris' Ex Parte Motion for Funds For Andrew Beveridge, filed August 23, 2004, at ¶ 9. Potential jurors whose names are placed on the Master Wheel by the Federal Jury Commissioner are mailed a jury summons and a juror questionnaire. Id. Further preliminary research by defendants indicates that only approximately half of the summonses mailed are returned with completed questionnaires, and that, of the questionnaires returned over the last three years, the percentage returned by African-Americans was around 3%. Id.

*8 These two factors--the large percentage of African-Americans who are opposed to the death penalty and the disproportionately small number of African-Americans in the Eastern District of Massachusetts jury venire--de facto exclude all or most African-Americans from a death-qualified jury.

This result was clear in United States v. Gilbert (98-cr-30044-MAP), where of the 600 people who completed questionnaires, the court conducted voir dire of 203 jurors to qualify sixty-four. Only eight black individuals were voir dired--six opposing the death penalty (75%) and two favoring the death penalty only in special circumstances (25%). No black jurors were seated. The result was the same in United States v. Sampson, (01-cr-10384-MLW) [FN16] where of the 498 jurors that completed questionnaires only twenty-three identified themselves as black (4.6%). Of the potential black jurors, ten (43.5%) were opposed to the death penalty, one (4.3%) was in favor of the death penalty, and ten were neutral (43.5%). No black jurors were seated on that jury either. [FN17]

Moreover, similar studies raise the serious concern that death-qualified juries are more conviction prone. In both of the cases where it considered the issue--Witherspoon and Lockhart--the Supreme Court has rejected this argument citing "tentative and fragmentary" data. Lockhart at 170 (citing Witherspoon at 517-18). Notably, the Court did not wholly foreclose any constitutional infirmities stemming from conviction-prone death-qualified juries. See Witherspoon at 517-518 ("We simply cannot conclude... on the basis of the record now before us... In light of the presently available information... " that excluding jurors opposed to capital punishment increases the risk of conviction to the level of constitutional infirmity) (emphasis added). In the years since Witherspoon and Lockhart were decided, significant social science research has been devoted to studying the effect of death-qualification on jurors.

Updated data presented by defendants in this case overwhelmingly shows that death-qualified jurors are significantly more conviction prone than jurors who are not death qualified. For example, nearly one half (49.2%) of all death-qualified capital jurors make their sentencing decision before the penalty phase of the trial even begins. Darryl Green and Branden Morris's Supplemental Memorandum On the Issue of Impaneling Separate Juries, filed September 10, 2004, at p. 6 (citing William Bowers and Wanda Foglia, Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing, 30 Crim. Law Bulletin 51, 56 (2003)). Several qualitative studies found that jurors who were exposed to the potential punishment during jury selection have a propensity to believe that the subtext of the voir dire is that the trial is not about whether the defendant committed the underlying crime but about what punishment the defendant should receive. Id. at 9-10 (citing Craig Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Human Behavior 121 (1984); Examining Death Qualification: Further Analysis of the Process Effect, 8 Law & Human Behavior 133 (1984); Haney, Hurado & Vega, "Modern" Death Qualification: New Data on Its Biasing Effects, 18 Law & Human Behavior 619 (1994)). These findings represent just a sliver of the recent data indicating that death-qualified jurors are skewed to be conviction-prone.

*9 While this decision does not rest on the conviction-prone juror problem, and its constitutional implications, it surely affects my obligations as a trial judge. Death penalty qualification hinders my responsibility to facilitate, to the best of my ability, a fair trial on guilt. It provides an additional "good cause" justifying bifurcating the juries in the trials of the capital defendants before me.

FOCUS

Back next week

FROM AROUND THE WEB

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Inmate Exonerated of Murder After His Death; Co-Defendant Who Had Been Given Death Sentence Exonerated Earlier

A murder charge against Louis Greco was finally dismissed by Massachusetts authorities 9 years after he died in prison. According to the Associated Press, in 2000, a Justice Department task force uncovered secret F.B.I. memoranda showing that Mr. Greco and three co-defendants, Peter J. Limone, Joseph Salvati, and Edward Tameleo, had been wrongly convicted of a murder that occurred in 1965 based on perjured testimony. (Limone had been sentenced to death, but was later released and exonerated in 2001. Tameleo also died in prison.) The F.B.I.'s relationship with mob informers has been the subject of a Congressional inquiry. In September 2004, a federal judge allowed a suit filed by Limone, Salvati and Greco's family for malicious prosecution and wrongful imprisonment to go forward. In exonerating Greco, assistant district attorney, Mark Lee, of Suffolk County said: "It appears that justice may not have been done." (N.Y. Times, Nov. 5, 2004). Limone was spared execution when Massachusetts abolished the death penalty in 1974. See DPIC's Innocence List for a description of Peter Limone's case.

NEW RESOURCE: New York's Wrongful Convictions

Scott Christianson's new book, Innocent: Inside Wrongful Conviction Cases, examines mistakes in New York's criminal justice system with an emphasis on mistaken identifications, perjury by eyewitnesses, ineffective counsel, false confessions, and police and prosecutorial misconduct. The book includes a log of the state's wrongful conviction cases, including some capital cases. Christianson reminds readers, "Unfortunately, not much is known about the current nature and extent of wrongful conviction. The state does not maintain a master list of its mistakes." He does applaud state and national efforts to review and improve accuracy, including programs such as The Innocence Project at Cardozo Law School and North Carolina's study to investigate the causes of wrongful convictions. (New York University Pres, 2004). See Resources and Innocence.

NEW RESOURCE: Gubernatorial Politics and Executions

The University of Chicago Law School's Journal of Law and Economics features an article by researchers Jeffrey Kubik and John Moran examining the relationship between politics and executions. In their article, Lethal Elections: Gubernatorial Politics and the Timing of Executions, Kubik and Moran found that states are about 25% more likely to conduct executions in gubernatorial election years than in other years. They also found that the effect of elections on executions is more pronounced for African-American defendants than for white defendants and is larger in the South than in other areas of the country. (46 Journal of Law and Economics 1 (2003)) See Law Reviews.

NY Times Magazine Article on the Science of Adolescent Brain Development

As the U.S. Supreme Court considers Roper v. Simmons, a case that will determine the constitutionality of executing juvenile offenders, new scientific research continues to emerge regarding the brain development of those under 18 years of age. New MRI-based research has shown that the brain continues to develop and mature into the mid-20's, and that prior to the completion of this process, adolescents use their brains in different ways than adults. For example, teens often operate from a more instinctual and reflexive part of the brain, and researchers have found that adolescents in stressful situations lack the ability draw on certain parts of the brain that are fully developed in adults to control their behavior. "This is why kids who are good kids, who know right from wrong, sometimes do stupid things. They act on impulse," said Dr. David Fassler, a psychiatrist in Burlington, Vermont, and a spokesman for the American Psychiatric Association. The article in the New York Times Magazine quoted the brief of the American Medical Association: "Scientists can now demonstrate that adolescents are immature not only to the observer's naked eye but in the very fibers of their brain. Normal adolescents cannot be expected to operate with the level of maturity, judgment, risk aversion or impulse control of an adult." While the medical community is quick to point out that these scientific developments do not excuse the actions of teen offenders, they do believe that these developments prove that juvenile offenders are less culpable than adults and should not be held to the same standard as those whose brains are fully developed. (The New York Times Magazine, October 17, 2004). See Juvenile Death Penalty. See DPIC's Roper v. Simmons Web page.

FBI Releases 2003 Uniform Crime Report: South Has Highest Murder Rate

The FBI recently released its Uniform Crime Report for 2003. The number of murders in the United States increased slightly from 16,229 to 16,503. Once again, the South had the highest murder rate (6.9 murders per 100,000 people). In 2003, the South carried out 89% of the executions in the country. The Northeast had the lowest murder rate in the country (4.2 murders per 100,000 people) and carried out no executions in 2003. (2003 FBI Uniform Crime Report, October 27, 2004 (execution numbers from DPIC)). Read the report. See Deterrence.

2003 MURDER RATE BY REGION

(per 100,000 people)

RELIGIOUS VIEWS: Catholic Bishops Oppose Expansion of Federal Death Penalty for Terrorism

Cardinal Theodore E. McCarrick, the Catholic Archbishop of Washington and acting as Chairman of the Domestic Policy Committee of the United States Conference of Catholic Bishops, has urged House and Senate conferees working on anti-terrorism legislation to report out a final bill that would not expand the federal death penalty for terrorists. McCarrick wrote a letter to House and Senate leaders crafting their final version of the National Intelligence Reform Act (S. 2845). The House version of that bill contains provisions to expand the federal death penalty, but the Senate version does not. McCarrick wrote:

"The cowardly acts of September 11 and their tragic human costs still haunt our nation. There can be no diminishing the horror of terrorism or the responsibility of those who employ wanton violence on the innocent. As you know, the bishops of the United States oppose the use of the death penalty in any instance. Catholic teaching on capital punishment is clear: If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person (Catechism of the Catholic Church). Congress need not go any further. Secondly, we feel strongly that terrorists are not going to be deterred by the death penalty. In fact, many terrorists believe that if they die committing an act of terrorism they will become martyrs. At the very least, it would seem that executing terrorists could make them heroes in the minds of other like-minded advocates of terror. As pastors, we believe that the use of the death penalty under any circumstances diminishes us as human beings. As we said in Confronting a Culture of Violence: 'We cannot teach that killing is wrong by killing,'"

(October 25, 2004, Statement from the United States Conference of Catholic Bishops) See New Voices and Federal Death Penalty.

Texas Execution Proceeds Despite Widespread Concerns About Houston Lab's Role

Dominique Green was executed in Texas on October 26 despite calls for a stay from a federal judge, Nobel Peace Prize winner Desmond Tutu, and the victim's family. A U.S. District Court judge in Houston had postponed the execution until the city's police department could complete cataloging 280 boxes of recently discovered evidence that could impact thousands of criminal cases. That stay was overturned by the U.S. Court of Appeals for the Fifth Circuit.

Green had admitted that he was present during the robbery that resulted in Andrew Lastrapes, Jr.'s death, but he had always maintained that he was not the triggerman. In the week leading up to the execution, the victim's son, Andre Lastrapes, and his family issued a statement calling for clemency in the case. After the execution, Andre noted, "I felt it was dirty. They (officials and judges) had their chance. They'll have to face a higher authority, which is God. I pray he (Green) goes to heaven." Before being put to death, Green said, "Tell Andre and them that I didn't get a chance to reach my full potential, but you can help them reach theirs." Eleven more Texas inmates, including six from Harris County, are scheduled to be executed by early March. (Houston Chronicle, October 27, 2004) See DPIC's Report on Texas.

LEGISLATION: Innocence Protection Act Signed Into Law

President Bush signed into law the Justice for All Act (H.R.5107) that includes a version of the Innocence Protection Act. The bill was co-sponsored by Senators Patrick Leahy (D-Vt.) and Orrin Hatch (R.-Ut.). It will create a post-conviction testing process to protect innocent defendants and provide training funds for the defense and prosecution in death penalty cases. (Salt Lake Tribune, Nov. 2, 2004). See the Justice Project for more details on the law.

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