Bad news. Judge Jed Rakoff of the Southern District of NY has been reversed on his decision declaring the death penalty unconsitutional.

From an email we received:

"USA v. Quinones, 02-1403(L), 02-1405

"2d Circuit panel unanimously rules: We hold that (1) we have jurisdiction to entertain this appeal, (2) the constitutional challenge was ripe for consideration prior to trial, (3) to the extent the defendants claim relies upon the Eighth Amendment, it is foreclosed by the Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153 (1976),and (4) the Federal Death Penalty Act does not violate the Due Process Clause of the Fifth Amendment. "

The full text is likely available on Findlaw.

The New York Times has this article on the case.

"Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals" is a comprehensive study of the quality of representation afforded to death row inmates in the state post-conviction process. Not surprisingly, as the New York Times reports, the study finds "Death row inmates in Texas are often assigned incompetent or unqualified state appellate lawyers who do not raise legitimate constitutional arguments and who fail to unearth facts that could prove the innocence of their clients."

"The overall message of the study is that our post-conviction system is broken in Texas," said Jim Marcus, executive director of Texas Defender Service and an author of the report. "Our system is so unreliable that innocent people or people with serious constitutional questions in their case are going to be executed without any real review."

The study also finds fault with the Texas Court of Criminal Appeals, the state's highest criminal court. "It accused the court of often appointing unqualified and inexperienced lawyers to handle state habeas appeals, noting that one lawyer still listed by the court as approved is dead. The study also criticized the court as being indifferent when presented with persuasive evidence that an inmate was being poorly represented."

While declining formal comment, a spokesman for the Court had this to say: "We've seen these criticisms before."

Dec 3rd Rally -- Exploiting the Sniper Tragedy

Don't let politicians turn tragedy into a blank check to execute!

Tuesday, December 3rd, 7pm
George Washington University's Marvin Center -- 3rd Floor Amphitheatre, at 21st and H St. NW, near Foggy Bottom Metro (Washington, DC)

Speakers:

Shujaa Graham, former death row inmate
Johnny Barnes, Executive Director ACLU, National Capital Area
Robin Maher, Director American Bar Assoc., Death Penalty Representation Project***
Jack Payden-Travers, Director Virginians for Alternatives to the Death Penalty
Mike Stark, Campaign to End the Death Penalty

Why: As the region searches for answers to the horrible sniper shootings, politicians like Attorney General John Ashcroft and Maryland Governor-elect Bob Ehrlich are eager to use this tragedy to sell and expand the death penalty. Ashcroft quickly moved sniper suspects, Gulf War veteran John Muhammad and John Lee Malvo, to Virginia to ensure their quick execution; Ehrlich pledged to overturn Maryland's moratorium on executions and to lower the eligible age for the death penalty to 17.

Attend the indoor rally and show Ashcroft and Ehrlich that you won't let them turn back the clock!

Sponsored by the Campaign to End the Death Penalty

For more information email them .

*** The American Bar Association does not oppose the death penalty. It does support a moratorium and opposes the execution of juveniles.

The Sixth Circuit has resolved a long-standing conflict by allowing death row inmates with claims of factual innocence to pursue them, even though they have been determined to be procedurally barred from doing so. The opinion doesn't free the defendant, Paul House, but it stops his execution while the case goes back to the state court in Tennessee to determine whether other avenues may exist to review the claim.

We know, it sounds awfully technical, and it is, but some of the language in the opinion, particularly that criticizing the dissent point of view, is instructive, hopeful and worth a read through:

The opinion is written by Judge Gilbert Merritt (no relation) and available here.

From the opinion:

"In this death penalty case from Tennessee, the habeas petitioner presents a strong claim of "actual innocence" or "miscarriage of justice".... The Supreme Court has assumed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim."....Justice O'Connor has referred to such an execution as a "constitutionally intolerable event." 506 U.S. 417. As a matter of traditional comity and respect for our colleagues on the Supreme Court of Tennessee, we therefore certify certain questions to that Court in order to ascertain whether there remains a "state avenue open to process such a claim" in this case."

" The petitioner, Paul House, has been sentenced to death on the basis of a set of facts that now turns out to be false in significant respects...."

"The question is not, as our dissenting colleagues seem to believe, whether the trial evidence with the new information remains sufficient for a juror to vote to convict but rather "if they [the new statements] . . . are true," whether "a juror, conscientiously following the judge's instruction requiring proof beyond a reasonable doubt, would vote to convict." 513 U.S. at 331. This is far different from the test used by our dissenting colleagues -- the sufficiency of the evidence in the trial record. The dissent looks to whether there is evidence that could have supported a jury's decision to convict, regardless of the new evidence. But Schlup looks instead to the "likely behavior of the trier of fact" -- what a conscientious juror would do given all the evidence. Justice Stevens specifically holds, in reversing the Eighth Circuit, that "petitioner's showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict." Id.(4)"

" With respect to the question of "delay," it is better to be safe than sorry, as we learned after Lloyd Schlup's case was reversed. We must remember, as members of the Supreme Court have advised us, that "death is different -- that "[t]he taking of life is irrevocable," so that "[i]t is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights," Reid v. Covert, 354 U.S. 1, 45-46 (1957), (Frankfurter, J. concurring), and that "[i]n death cases doubts . . . should be resolved in favor of the accused," Andres v. United States, 333 U.S. 740, 752 (1948), and that "[t]he Court . . . has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-99 & n.9 (1983)."

"We must take seriously the Supreme Court's admonition in Schlup, quoted above, that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim," 513 U.S. 298, 314 n. 28. In such cases as this one, it is not obvious what avenues of relief are open, and we are not inclined to agree with our dissenting colleagues that the door should be closed and the man executed without asking any questions."

Howard Bashman of How Appealing discusses one of the dissenting opinions.

The New York Times today calls on Illinois Governor George Ryan to grant blanket commutations to all prisoners on death row:

"Governor Ryan, a conservative Republican who voted for the death penalty as a legislator, has said repeatedly that he is considering a blanket commutation, which would reduce death sentences to life in prison. But last month's hearings, which received wide attention across the state, appear to have slowed the momentum. The testimony, much of it from families of murder victims, was often heart-wrenching. But as effective as they were as a reminder of the pain that crime causes, the hearings did not refute the fact that Illinois's use of the death penalty is tragically flawed. Governor Ryan, who has made fairness in administering the death penalty a hallmark of his governorship, will end his tenure on a high note if he takes one last stand for justice and issues a blanket commutation."

Laurence Steinberg, Distinguished University Professor of Psychology at Temple University, makes some excellent points in his op-ed piece in today's Washington Post, Judging a Juvenile Killer:

"The Supreme Court has held that the death penalty is unconstitutional for people who are under 16 at the time of their offenses. Currently, only 22 states permit the execution of juveniles -- and in practice, only seven have executed juveniles since the death penalty was reinstated in 1976. Half the states that permit capital punishment allow for the execution of juveniles, and 40 percent of states that permit capital punishment allow the execution of juveniles as young as 16. To those who say that 16 is old enough to know better, it is worth pointing out that in virtually every other area of the law, we treat 16-year-olds as if they are inherently less mature than adults."

"Malvo is not the best poster boy for repeal of the juvenile death penalty. But ongoing research on the links between brain maturation and psychological development in adolescence is beginning to explain why adolescents are not as capable of planning, or as thoughtful and self-controlled, as adults and, more important, why these deficiencies may be inherent to being an adolescent. It is true that the science is a long way from providing a definitive answer to the question of where we should set the age boundary for adult criminal responsibility. But executing juveniles puts the United States in rare company: The only other country that is still committed to the execution of juveniles is Iran. Until the data are in, we should join the rest of the world and prohibit the execution of people under the age of 18."

The Department of Justice authorization procedures for seeking the death penalty in any case are set forth in section 9-10.000 of the United States Attorney's Manual.

"Promulgated in early 1995, the Department of Justice Death Penalty Guidelines and Procedures are intended to set forth the criteria to be utilized by local United States Attorneys and the DOJ in deciding whether to seek the imposition of the death penalty under federal law. The procedures also outline certain procedural steps to which United States Attorneys and Main Justice are supposed to adhere in considering death penalty authorization requests."

"The following is a summary of the Department of Justice policy and procedures in all federal cases in which a defendant is charged with an offense subject to the death penalty, regardless of whether the United States Attorney intends to request authorization to seek the death penalty." [Source, An Overview of the Federal Death Penalty Process , by Dick Burr, David Bruck & Kevin McNally]

The incoming Governor of Illinois, Democrat Rod Blagojevich, who beat Attorney General Jim Ryan (unrelated to outgoing Governor George Ryan) in Tuesday's election, will keep the moratorium on the death penalty , "at least until the Legislature addresses problems pointed out by the death penalty commission."

The Illinois Death Penalty Commission recommended 85 reforms to reduce the unfairness in the application of the death penalty in Illinois, none of which have been implemented by the state legislature.

Our own Government is confirming the arguments of death penalty opponents that the death penalty is not a deterrent to violence. Virginia has scheduled an execution next Thursday for a Pakistani national who was convicted in 1993 of killing two CIA employees. Tonight, the State Department put out a warning:

"The State Department warned Americans Wednesday that the execution next week of a Pakistani convicted of murdering two CIA employees could trigger retaliatory attacks on U.S. interests overseas. The worldwide caution cited the scheduled Nov. 14 execution in Virginia of Mir Ahmad Kasi, convicted five years ago in the 1993 murders of two CIA employees, as cause for extra vigilance."

"The potential exists for retaliatory acts against U.S. or other foreign interests in response to the execution," the State Department said. "These may include facilities where Americans or possibly other foreigners are generally known to congregate or visit, such as residential areas, clubs, restaurants, places of worship, schools, hotels, outdoor recreation events or resorts and beaches."

Violence begets violence. We should stop state-sanctioned killing now.

Amid Doubts About Competency, Mentally Ill Man Faces Execution in today's New York Times:

"Barring an unexpected reprieve, James Colburn will be executed on Wednesday for the 1994 strangulation and stabbing death of Peggy Murphy. He admits he committed the murder, just as prosecutors admit the other salient point in the case: that Mr. Colburn is severely mentally ill."

Mr. Colburn was given copious amounts of anti-psychotic drugs during his trial. He slept through most of it. That is the issue now before the Supreme Court--"whether it matters that he dozed through his own murder trial because he was so heavily medicated with antipsychotic drugs. His lawyers argue that the trial was unconstitutional, because his condition rendered him incompetent to stand trial. The federal appeals courts, so far, have disagreed, and the issue is now before the Supreme Court."

We recommend reading the article for the details of his mental illness, and the jurors' reactions to learning about it after the trial.

Illinois Governor George Ryan is the featured lunch speaker at the meeting of the National Association of Criminal Defense Lawyers at the Drake Hotel in Chicago--at noon. We'll be attending and will report our comments later.

We did get some more info on the Arkansas case involving Wayne Dumond and Huckabee and will fill you in later on that too.

We didn't get to update the news on the left today, so check our media page on the top right for links where you read the sources directly and we'll be back either later tonight or tomorrow.

"The family of a college student who was murdered by a pizzeria worker nearly two years ago will ask a judge to spare her killer's life. Tom Murray, the victim's father, said Tuesday the family believes Gregory McKnight should spend the rest of his life in prison but should not be given a death sentence for killing Emily Murray. "We're going to ask the judge to consider a sentence that would assure McKnight dies in prison but not in the hands of the executioner," Tom Murray said."

A jury recommended the death penalty for Emily Murray's killer, but Emily opposed the death penalty and her parents want to honor her beliefs.

The number of family victims who oppose the death penalty for their loved ones' murders has been steadily growing in recent years. Among the most vocal organizations advancing this welcome shift is Murder Victims' Families For Reconciliation (MVFR).

Founded in 1976 by Marie Deans, the guiding prinicple of the group has been:

"From experience, we know that revenge is not the answer. The answer lies in reducing violence, not causing more death. The answer lies in supporting those who grieve for their lost loved ones, not creating more grieving families. It is time we break the cycle of violence. To those who say society must take a life for a life, we say: "not in our name."

This is a non-profit organization without a religious agenda. Its members come from diverse racial, geographic, economic and religious backgrounds. Their bond has its roots in the loss of a family member due to a criminal act.

We applaud them.