During his 8 years in office, former Los Angeles District Attorney Gil Garcetti had no problem telling his prosecutors to push hard to get death sentences for those he thought deserved it. Now Garcetti is one of those leading the charge for a ballot proposition to replace the state’s capital punishment statute with a sentence of life without the possibility of parole.

The Ventura Star has story on the issue that is a must read for anyone who wishes to have an opinion—for or against—the death penalty in the state of California.

Here’s a clip:

…..It takes five years just to appoint an attorney to handle a condemned murderer’s automatic appeal to the state Supreme Court, and typically five more years for the court to decide his case. The state habeas corpus proceedings take another two years. Then constitutional issues are raised in federal courts, where it typically takes 10 years for those cases to make their way through to the court of appeal — where relief is granted nearly 70 percent of the time, resulting in either new trials or new penalty proceedings.

Since the death penalty was reinstated in California in 1978, judgments of death have been rendered 812 times. The resolution of those cases to date: 718 inmates are incarcerated on San Quentin’s death row, 55 condemned inmates have died of natural causes, 19 have committed suicide, six died from other causes, one was executed in Missouri for a separate crime. And California has carried out just 13 executions.

As of 2008, there were 30 people who had been on death row for more than 25 years.

The cumulative cost for all this, above what taxpayers would have borne had the ultimate penalty been a life sentence without possibility of parole, is estimated at $4 billion. Just this year the cost of having the death penalty on the books is estimated at from $120 million to $184 million.

The record leads to one blunt conclusion, expressed by the authors of an exhaustive study published earlier this year in the Loyola of Los Angeles Law Review: “California has the most expensive and least effective death penalty law in the nation.”

That reality has been enough to make a convert of Garcetti, who has joined with other past participants in carrying out the death penalty such as former San Quentin warden Jeanne Woodford and Don Heller, the attorney who wrote the state’s death penalty law, to say the system just doesn’t work — not for taxpayers and not for public safety.

“You have people involved in the process who have reached the same conclusion,” he said. “It’s ineffective, and we can’t afford it.”

This death penalty case about returned mail and multiple oversights on the part of lackadaisical court clerks and ball-dropping lawyers seemed to get a positive hearing from everyone but Scalia who reportedly was the only obvious contra.

The AP’s Mark Sherman has the story.

Here’s how it opens:

WASHINGTON (AP) — The tale of returned mail and a missed deadline might seem comical if it did not involve a man trying to stave off execution. Supreme Court justices had harsh words Tuesday for lawyers who abandon their clients and a state legal system that does not seem overly concerned.

At the end of a lively hour of arguments, it appeared the court would order a new hearing for Alabama death row inmate Cory Maples, who had lost the chance to appeal his death sentence because of a mailroom mix-up at the New York law firm Sullivan and Cromwell and the diffidence of a local court clerk.

Two Sullivan and Cromwell lawyers had been pressing Maples’ claim that his earlier legal representation was so bad that it violated the Constitution – until they both left the firm without telling him or the Alabama courts.

Deadlines usually matter a lot at the Supreme Court, where a few years back a defendant who was late to file an appeal because the judge gave his lawyer the wrong date still lost his case. Another principle the court often holds dear is that it’s tough luck for defendants whose lawyers make mistakes.

But Tuesday’s case, perhaps because it involves the death penalty, was the rare instance when the court seemed prepared to grant some leeway on both counts.

Justice Samuel Alito is a former federal prosecutor who often votes for the government in criminal cases. But he said he did not understand why Alabama fought so hard to deny Maples the right to appeal when the deadline passed “though no fault of his own, through a series of very unusual and unfortunate circumstances.”

FYI: Maples isn’t arguing innocence at this point, only basic fairness in being allowed an appeal. Nice to see the Supremes responding.

The NY Times has this editorial on the case.

FEDS: NO GUNS OR AMMO FOR MED MARIJUANA USERS…..MONTANA: OH, REALLY? SEZ YOU!

Oh, how, I love the folks in my other home state.

This is by Charles Johnson from the Missoulian. A clip to get you started.

Attorney General Steve Bullock voiced his objection Monday to the U.S. Justice Department over its recent memo banning the sale of guns or ammunition to licensed medical marijuana users and urged the agency not to prosecute anyone for now.

Bullock wrote U.S. Attorney General Eric Holder about the Sept. 21 memo from the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives to licensed gun dealers. The memo said it is illegal for medical marijuana cardholders to buy guns and ammunition, and illegal for dealers to sell these products to them.

The letter from Bullock followed criticism of the policy last week from all three members of Montana’s congressional delegation, Sens. Jon Tester and Max Baucus, and Rep. Denny Rehberg. A firearms advocacy group and a medical marijuana group had earlier blasted the memo.

Bullock told Holder said he’s willing to work with the U.S. Justice Department staff “on exploring a reasonable solution to the problems created by the Bureau of Alcohol, Tobacco, Firearms and Explosives letter.”

The goal, he said, is to find an approach that works for the Montana and the other 15 states and the District of Columbia that have legalized medical marijuana.

“This would be much better than the type of unilateral proclamation represented by the ATF letter, which was issued without any advance notice or discussion with the elected officials who represent more than one-fourth of this nation’s population and one-third of its states,” Bullock wrote.

“In the meantime, I respectfully request that the Department of Justice not pursue any criminal prosecutions against law-abiding citizens in Montana who exercise their constitutional rights to possess guns and enjoy hunting, or the licensees who are implicitly threatened by ATF’s letter.”

Bullock said Montana had about 200,000 hunters last year, and the state Department of Fish, Wildlife and Parks sold more than 580,000 hunting licenses. As Montanans purchase guns and ammunition from sporting good stores, some of them may also have medical marijuana cards, he said.

Go Big Sky!

(For the record, I’m a wine drinker, not a toker—med or otherwise. And I don’t like guns. However, that isn’t the point. But thank you for inquiring.)

THOUGHTS IN THE AFTERMATH OF THE EXECUTION OF TROY DAVIS

The execution of Troy Davis was deeply disturbing for large numbers of Americans—and for many elsewhere in the word.

In the hours since Davis died at 11:08 Georgia time on Wednesday, September 22, there has been a flood of columns, news stories, tweets and random opining.

Some of the opinions have featured sloppy thinking. For instance, there were many comparisons to the Casey Anthony case that, when pulled apart, don’t hold up logically.

Then the cyber vigilante group Anonymous reportedly plans a “Day of Vengeance” against the Georgia Board of Pardons and Parole. (NOTE TO ANONYMOUS: YOU’RE NOT HELPING!)

Yet there are other essays and articles that surfaced after Davis’ death that are very much worth your time. —like this story by Mansfield Frazier writing for the Daily Beast.

Frazier tells how, on Wednesday morning, the day of the execution, six high ranking retired corrections officials, people who had personally “been there” when it comes to state executions, weighed in forcefully on the Troy Davis case. The six—including Dr. Allen Ault, the retired director of the Georgia Department of Corrections and former warden of the Georgia Diagnostic and Classification Prison, and California’s own former CDCR director and former warden of San Quentin Jeanne Woodford—sent a joint letter to Georgia corrections officials and Gov. Nathan Deal asking them to urge the Georgia Board of Pardons and Paroles to reconsider the decision they made Tuesday, Sept. 20, to deny Davis clemency.

Here is some of what they wrote:

“Like few others in this country, we understand that you have a job to do in carrying out the lawful orders of the judiciary. We also understand, from our own personal experiences, the awful lifelong repercussions that come from participating in the execution of prisoners. While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner.

“We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight. We know the legal process has exhausted itself in the case of Troy Anthony Davis, and yet, doubt about his guilt remains. This very fact will have an irreversible and damaging impact on your staff. Living with the nightmares is something that we know from experience. No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt. Should our justice system be causing so much harm to so many people when there is an alternative?

“We urge you to ask the Georgia Board of Pardons and Paroles to reconsider their decision. Should that fail, we urge you to unburden yourselves and your staff from the pain of participating in such a questionable execution to the extent possible by allowing any personnel so inclined to opt-out of activities related to the execution of Troy Anthony Davis. Further, we urge you to provide appropriate counseling to personnel who do choose to perform their job functions related to the execution. If we may be of assistance to you moving forward, please do not hesitate to call upon any of us….”

Two more stories that might interest you: one is by death row attorney and law professor David Dow. The second is by Slate’s legal reporter, Dahlia Lithwick. The two essays are interesting to read together in that Dow and Lithwick each take a different side of the question: Will Troy Davis be the tipping point in America’s feeling toward capital punishment?

AS LA CRIME CONTINUES TO DROP, LASD SHOOTINGS OF UNARMED SUSPECTS GOES UP

The LA Times’ Robert Faturechi reports on the study just released on Thursday by Merrick Bobb, special counsel to the LA County Board of Supervisors and the founding director of the Police Assessment Resource Center (PARC)

Here’s a clip:

Those shootings jumped from nine in 2009 to 15 last year, according to the report. Last year also saw the highest proportion of people shot by deputies who turned out to be unarmed altogether.

The Sheriff’s Department already requires its patrol deputies to do scenario-based shooting training every two years. According to the report, though, almost a third of the deputies who shot at people before seeing an actual gun failed to meet that training requirement.

According to the report, the number of officer-involved shootings generally correlates with the criminal homicide rate. But in the last two years, as the homicide rate in Los Angeles County has fallen, the number of Sheriff’s Department shootings has risen.

NOTE: LIGHT BLOGGING today. Back to full force on Monday.

7:05 pm Eastern time

US SUPREME COURT DELAYS EXECUTION IN ORDER TO CONSIDER A STAY

Twitter had it first, but then around 7:15 a few news stories emerged. Here’s the story from the Guardian. Troy Davis was schedule to be executed on Wednesday at 7 pm eastern.

Here is some additional information from MSNBC.

“We are in a delay, waiting for a decision from the U.S. Supreme Court,” Peggy Chapman of the Georgia Department of Corrections told NBC News. “There has not been a reprieve issued.”

About 200 Davis supporters gathered outside the Jackson prison cheered as news of the lethal-injection delay spread. Police were on hand to deal with any possible disturbance if the execution goes ahead.

The last-ditch effort with the U.S. Supreme Court came just 45 minutes before the execution was scheduled and after state officials refused to grant Davis a reprieve in the face of calls for clemency from former President Jimmy Carter, Pope Benedict XVI and others.

Late Wednesday afternoon, Georgia’s Supreme Court had rejected a last appeal by Davis’ lawyers. Earlier, a Butts County Superior Court judge also declined to stop the execution. Davis was convicted in the 1989 slaying of off-duty Savannah police officer Mark MacPhail.

In their U.S. Supreme Court filing, Davis’ attorneys said “substantial constitutional errors” were made when the lower courts denied his claims that “newly available evidence reveals that false, misleading and materially inaccurate information was presented at his capital trial in 1989, rendering the convictions and death sentence fundamentally unreliable,” NBC News reported.

7:53 pm

DEMOCRACY NOW LIVE STREAMING UNTIL 9 P.M. FROM OUTSIDE PRISON

Here’s the link.

Martina Correa, Davis’s sister is extremely impressive, by the way.

Here is the Atlanta Journal Constitution’s timeline. The AJC has a reporter also with Mark Allen MacPhail’s mother, Anneliese, whom they wrote was “….surrounded by friends and relatives at her home, was leafing through photos of her son, and in her words ’smoking like a steam engine’ as she awaited word on whether the execution would proceed tonight…”

SCOTUS DENIES STAY. TROY DAVIS DIED AT 11:08 PM EASTERN.

Here’s the timeline from the AJC:

11:25 AJC reporter Rhonda Cook and other media witnesses report that Davis addressed the MacPhail family directly from the gurney and again proclaimed his innocence, asked mercy for those about to kill him and asked his friends and supporters to continue working to get to the truth of officer MacPhail’s death.

11:08 Davis pronounced dead.

10:57 State Attorney Generals office notifies MacPhail’s mother Anneliese “[Davis] is on the gurney, the needle is in.”

10:52 ORDER IN PENDING CASE 11A317 DAVIS, ANTHONY TROY V. HUMPHREY, WARDEN:

The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. (Link to SCOTUS.)

10:31 About 150 remaining Davis supporters were still in prayer outside the state Capitol 10 minutes after hearing the stay had been denied.

10:27 “I’d like to have some peace now that it’s over,” Anneliese MacPhail mother of murdered officer Mark Allen MacPhail to CNN.

10:18 Davis’ attorneys say the U.S. Supreme Court has denied the stay.

10:08 State Attorney Generals office notifies MacPhail’s mother Anneliese they have received an email from the U.S. Supreme Court to expect word in another 10 to 20 minutes.

The Guardian’s Ed Pilkington was more eloquent than most other reporters in writing about Troy Davis’s last words. In fact Pilkington has consistently done a better job than most in conveying the unfolding facts of the matter, but not bleaching the meaning out of the circumstances, when reporting on the wrenching Davis case.

Moments before he was put to death, Troy Davis lifted his head from the gurney to which he was strapped and looked the family of Mark MacPhail, the police officer for whose murder he was convicted, directly in the eyes.

“I want to talk to the MacPhail family,” he said. “I was not responsible for what happened that night. I did not have a gun. I was not the one who took the life of your father, son, brother.”

He then appealed to his own family and friends to “keep the faith”, said to the medical personnel who were about to kill him “may God have mercy on your souls”, and laid his head down again.

He was administered with a triple lethal injection of pentobarbital, pancuronium bromide and potassium chloride, and at 11.08pm he was pronounced dead.

The debate about what happened in Georgia’s Diagnostic and Classification Prison in Jackson late on Wednesday night will continue long after the gurney has been put away. In the final gruesome hours of waiting, the American judicial system at its very highest echelons was involved – including the US supreme court, which issued the decisive final ruling. The decision to press ahead with the death sentence despite serious doubts over Davis’s guilt drew accusations that this was the system at its most grotesque.

It was Davis’s fourth execution date, and it was dragged out, for more than four hours, to what must have been tortuous effect for the prisoner and his family.

Davis, 42, became the 52nd man to be executed in Georgia since the same supreme court reinstated the death penalty in 1973. His lawyers and thousands of supporters around the world were convinced that an innocent man had been sent to his death.

To take a life when a life has been lost is revenge, not justice.
– Desmond Tutu

The path for Troy Anthony Davis’s to receive a lethal injection appears to be now cleared. His execution is scheduled for 7 pm on Wednesday.

The Christian Science Monitor (among others) has the story. Here’s a clip:

Pope Benedict, President Carter, and former FBI head William Sessions were among nearly 700,000 people around the world who campaigned, via signatures and testimony, that Mr. Davis’s life be spared after seven of nine witnesses to the 1989 murder of off-duty Savannah, Ga., police officer Mark MacPhail changed or recanted their testimony in recent years.

The parole board appeal was a last-ditch effort for Davis after the Supreme Court, in a highly unusual move, demanded a district court review of the case last year. In the end, the review found that new evidence and changes in witness testimony didn’t substantially affect the validity of the original 1991 murder conviction.

After three hours of testimony on Monday, Davis’s lawyers said they believed they had demonstrated “substantial doubt” that Davis was the triggerman in the shooting of Mr. MacPhail, a former Army Ranger and young father, outside a Burger King in Savannah, Ga. One piece of new evidence included testimony that a different man at the scene later confessed he pulled the trigger.

But MacPhail’s family, including his wife, told the clemency board that “it’s time for justice.” Joan MacPhail-Harris, his wife, told reporters that Davis’s claim of innocence was “a lie.”

Because of its high profile and byzantine journey through the US death penalty system, the Troy Davis case has been seen by some legal experts as a bellwether case for a justice system that sets a high bar for death row inmates trying to prove their innocence.

“Davis could not clearly establish that he was actually innocent,” despite dramatic reversals in witnesses’ stories and new questions about a key ballistics test, says Russell Covey, a law professor at Georgia State University, in Atlanta.

Here’s an impassioned essay from writer/commentator Kevin Powell.

The Atlanta Journal Constitution columnist Jim Galloway is keeping track of reactions from local figures in the state of Georgia.

From E.D. Kain writing for Forbes

….If Davis is not guilty and we kill him nonetheless then we have simply stacked one murder on top of another. The life of Mark MacPhail will not be avenged. If Davis is guilty, surely serving out the remainder of his life in state prison should be enough. Justice does not require retribution.

Death is tragic. The death of Mark MacPhail is a tragedy that will never be undone. Not by blood, not by prison bars, not by time, not by proof that Davis is guilty or proof that he is innocent. But if we have even a glimmer of doubt about his guilt, there will be no justice in his death. If we have even a hint of uncertainty over whether this man did the deeds he was accused of, but which most of his accusers have since recanted, we should stay his execution.

But the history of justice in America is scarred across by such tragedies.

Andrew Cohen, chief Legal analyst and legal editor for CBS writing for the Atlantic.

……In the modern era of capital punishment — since the Supreme Court’s decision in Gregg v. Georgia — three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.

With the Buck case coming back around later this month, with the Davis case right before us this week, with a leading presidential candidate making his capital punishment record a point of political pride, and with the Tea Party crowd cheering execution statistics, now seems as good a time as any to dig around a little at this strange legal confluence we’ve come to on the death penalty. Nearly 40 years after the Supreme Court first took away the death penalty, we may be closer than many people think to another turning point on capital punishment. We may be reaching the Icarus point — and don’t say I didn’t warn you.

[HUGE SNIP]

Whether the trial witnesses against [Davis] were lying then or are lying now, by fighting against his requested relief Georgia is saying that its interest in the finality of its capital judgments is more important than the accuracy of its capital verdicts. You can certainly find concern for such chilling sentiment in the gloomy language of Furman. But you sure can’t find it in the puffy language of Gregg. In their zeal to make good on cynical campaign promises to be “tough on crime,” in their pursuit of vengeance on behalf of grieving families, in their reckless disregard for the racial realities of capital punishment, elected or appointed proponents of the death penalty are in the process of ruining the mandate the Supreme Court gave them 35 years ago.

Fool me once, shame on you. Fool me twice, shame on me. I’ll continue to cover these death penalty stories, sure I will, but I promise I’ll no longer coddle what Justice Brennan called the “delusions” of opportunists like Rick Perry when they look into a camera and tell us that they’ve “never struggled” over death penalty cases. It’s crazy talk like that, truly “wanton and freakish,” to use Justice White’s words in Gregg, which gave us Furman to begin with and which, I believe, will ultimately bring it round again.

UPDATEs: TROY DAVIS’S ATTORNEYS SAY DAVIS WILL TAKE A POLYGRAPH TO PROVE HE IS NOT THE KILLER

This was the news from late Tuesday night. The Atlanta Journal Constitution has the story.

Also, here’s a link to the Board of Parole’s full statement.

NY TIMES CALLS THE DECISION “A GRIEVOUS WRONG.”

Here’s how the editorial opens:

Troy Davis is scheduled to be executed on Wednesday for the 1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime. …

A NEW GROUP OF 250,000 PETITION SIGNATURES will be delivered to to the offices of Chatham County District Attorney Larry Chisolm Wednesday morning at 9 a.m., in the hope that Chisolm will intervene and request that Davis’ death warrant be revoked.

(Of course, last week, more than 650,000 signatures were delivered to the Georgia Board of Paroles and Pardons—and we saw how well that worked out.)

This seems like something of a frail hope in that the prosecutor said in a statement Tuesday that he is powerless to withdraw an execution order for Davis issued by a state Superior Court judge.

That leaves the U.S. Supreme Court.

WEDNESDAY MORNING, POLYGRAPH REQUEST BLOCKED BY GEORGIA DEPARTMENT OF CORRECTIONS. ATTORNEYS ASK FOR LAST MINUTE 90 DAY STAY FROM LOCAL SUPERIOR COURT

CBS News has the story.

#TooMuchDoubt and #Who Is Troy Davis are each drawing about 20 tweets every 30 seconds.

Photo by David Tulis for the AP

Late on an August night in 1989, an off-duty Savannah police officer named Mark Allen MacPhail tried to intervene when he saw a homeless man being pistol whipped in a restaurant parking lot by another man. But as MacPhail ran toward the scene, the person doing the whipping turned his .38 on the approaching officer and fired three times, killing the father of two who was trying to be a good Samaritan.

In short order, then-20-year-old Troy Anthony Davis was arrested and, in 1991, tried and convicted of the murder of Mark Allen MacPhail, and sentenced to death.

Other than the bullets, there was no physical evidence at the crime scene, and no gun was ever recovered, so Davis was convicted largely on the basis of witnesses. Over the years, however, seven of the nine primary witnesses have recanted saying that they were pressured to ID Davis when they did not see him do the shooting at all. One of the two witnesses against who has not disavowed his or her story is a man named Sylvester “Redd” Coles whom other witness now say was, in fact, the man who did the beating and the shooting. Interestingly, back in 1989, it was Coles who went to the police and pointed the finger at Davis.

Now more than 20 and many appeals later (Including a trip to the U.S. Supreme Court), 42-year-old Davis is scheduled to die on September 21, this Wednesday. MacPhail’s mother says Davis’s execution will bring her and her family “peace.”

The only thing that stands between Davis and a lethal injection is the Georgia Board of Pardons and Paroles which will hear Davis’s petition for clemency on Monday.

Although Davis has hundreds of thousands supporters all over the world, including such unlikely people as William Sessions (the former Director of the FBI under Presidents Ronald Regan, George HW Bush and Bill Clinton), 1,500 legal professionals, more than 3,300 religious leaders, 26 death-row exonerees and 110 relatives of murder victims, absent the magic of DNA or some other conclusive evidence (like, say, someone else—Redd Coles, maybe— confessing convincingly to the murder), there is no way to conclusively prove Davis innocent—if in fact he is innocent. (Davis has never wavered in his insistence that he had nothing to do with the crime, but was leaving the parking lot when he heard the shots fired that killed MacPhail.)

Yet, the problem that many have with this case is the fact that the more deeply one looks into the changed testimony and at the affidavits of new witnesses who have come forward with statements damning to Coles, the more doubt about the guilt of Troy Anthony Davis emerges. Two of the jurors who sentenced Davis to death in 1989 have famously stated that they would not do so knowing what they know today. There is now much too much doubt, they say.

And that, in the end, is the point: Maybe Davis is innocent but, absent physical evidence, will never be able to prove it, and so the real killer will go free. Or maybe the original prosecutor and the cops who investigated the murder decades ago are correct, that the right man was convicted.

The truth is, we simply don’t know.

One thing we do know, is that there is a hell of a lot of uncertainty surrounding this case—reasonable doubt and then some.

And we cannot in any kind of good conscience execute a man when his guilt is not a sure thing. Maybe we can legally. But morally we cannot.

In the case of the death penalty, the moral truth must hold the high card.

Otherwise who are we?

NOTE: For those wishing to research the issue further, here are a couple links to get you started:

The local Savanna news coverage of the 1991 trial.

Savanna’s more current coverage.

Statements from affidavits by those who recanted witness statements or by others who have come forward with evidence against Redd Coles.

Marisa Taylor For McClatchy has done an excellent three-part series on the military’s use of the death penalty.

Here are clips from all three parts:

RACE AND THE DEATH PENALTY IN THE MILITARY

Interestingly, it seems that the racial disparities are the starkest when those killed are outside the military. Military on Military murders seem to be less affected to the st

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They’re all minorities.

The racial imbalance in the military’s death penalty isn’t new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system. The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.

A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

DEATH SENTENCES HANDLED SO POORLY THEY ARE FREQUENTLY OVERTURNED

It is rarely question of innocence at all when these military capital cases are overturned. It is a matter instead of hopeless bungling by the defense at trial, of evidence grossly mishandled by prosecutors, and more.

In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.

The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.

But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.

Now, federal defenders who took over his case say they’ve found new evidence that his original military lawyers should have discovered. If they’re successful, Gray could join a growing number of soldiers, airman and marines who have been spared execution.

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military’s appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men’s guilt, but because of mistakes made at every level of the military’s judicial system.

The problems included defense attorneys who bungled representation, judges who didn’t know how to properly instruct a jury and prosecutors who mishandled evidence.

In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they’re the military’s worst of the worst. Convicted of crimes such as serial murder and rape, they’re the kinds of criminals that many people would agree the death penalty should be reserved for.

Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn’t equipped to handle the complex legal and moral questions that capital cases raise.

THE DETAILS OF A BAD DEFENSE

Nobody is suggesting Army Maj. Nidal Malik Hasan didn’t commit the horrific murders of which he was accused. “It’s not a whodunit, but a whydunit,” said Dwight Sullivan, senior appellate defense counsel for the Air Force.

When military jurors sentenced former Marine Lance Cpl. Ronnie Curtis to death, they had every reason to believe that he deserved to be executed. No one disputed that he’d stabbed and killed his superior officer and the officer’s wife inside their home. The only real question was why.

But what the jury learned at trial made the crime seem even more inexplicable. After all, he had a good Christian upbringing by caring parents. No one could have predicted the murders based on his background.

On appeal, his lawyers discovered a very different story. They found that Curtis’ adoptive father was frequently drunk, including during the lawyers’ visit to their client’s childhood home in Kansas. When questioned about his son, Curtis’ father showed off the horsewhip he’d used to beat him after adopting him at age 2.

In capital cases, such details could be enough to save a defendant from death row. Yet the realities of Curtis’ troubled childhood, along with evidence that he was drunk when he committed the murders, were never presented at his sentencing at Marine Corps Base

AND THERE’S THE LITTLE MATTER OF THE MILITARY CRIME LAB

<hr?.

AND IN OTHER NEWS: TWO SIDES CLASH OVER RELEASE OF PROP 8 TRIAL VIDEO

The SF Chron has the story:

Adversaries in the legal battle over same-sex marriage in California clashed Monday over the release of courtroom videos, with gay-rights groups arguing for the public’s right to watch last year’s trial and their opponents saying the judge promised to keep the footage sealed.

The videos, whose live broadcast was blocked by the U.S. Supreme Court, are still “the ultimate judicial record (that) will allow the public to see exactly what led Judge (Vaughn) Walker to strike down Proposition 8,” Theodore Boutrous, lawyer for two gay and lesbian couples and an advocacy group, said at a federal court hearing in San Francisco.

NOTE: LIGHT BLOGGING TODAY (WEDDING PREP AND ALL THAT)

CAN NEUROSCIENCE HELP US SENTENCE MORE EFFECTIVELY?

An intriguing new book by Professor Deborah Denno is coming from Oxford University Press: It’s called Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively.

Here is some of the summary from the abstract on the book:

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change — either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.

PS: Thanks to Doug Berman at Sentencing, Law & Policy for pointing to Denno’s book.

I hope the book lives up to its promise. If so, it could be particularly helpful in the arena of juvenile justice, where we seem to be ever more eager to shove kids into adult court in defiance of everything we know about how the human brain matures (not to mention just basic psychology).

In fact, it has long struck me that so much of contemporary sentencing, incarceration and parole policy is designed with a bizarre disregard for nearly everything we have learned about human behavior in the last century. With rare exceptions, we use our prisons almost solely to punish—even though there is nothing in research or anecdotal observation that tells us that punishment alone will improve behavior and/or expand one’s ability to function as an upright, productive citizen. In most cases, it makes people worse, not better. We seem also to forget that 95 percent of 2.3 million who are locked up in our nation’s prisons at any given time, will eventually come home. Then, we act shocked and dismayed when more than half of the more than 700,000 Americans who are paroled each year, do not succeed on the outside.

I long for the time when our policies are based more promoting public safety and community health instead of some atavistic notion of vengeance.

THE FEDS AND THE DEATH PENALITY

Carrie Johnson for NPR reports that “…a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level..” That “quiet revolution” means fewer executions. Read the details here.

THREE MULTIMILLION $$ EXECUTIONS

The Seattle Times reports that various counties in Washington state have put capitol punishment on hold due to budgetary concerns. In King County, which still has active death penalty cases, the paper reports that “.…the cost of prosecuting two men and a woman accused of two of the most heinous crimes in King County in recent years is $656,564 and counting.

The cost of defending them is even higher: $4.3 million, and also climbing.”

Last year’s prosecutor of a third case has thus far cost the county $2.4 million.

All three of these cases, the defendants appear to be the worst of the worst-–people that one is hard-pressed to believe that the planet will miss all that much.

Still, even some of the Washington’s death penalty advocates are wondering if maybe the price tag is too high for the state to afford.

IF LAW-N-ORDER STATES LIKE TEXAS CAN REVISE THEIR SENTENCING LAWS, WHY CAN’T CALIFORNIA?

Charlie Savage of the New York Times has this story:

Fanned by the financial crisis, a wave of sentencing and parole reforms is gaining force as it sweeps across the United States, reversing a trend of “tough on crime” policies that lasted for decades and drove the nation’s incarceration rate to the highest — and most costly — level in the developed world.

While liberals have long complained that harsh mandatory minimum sentences for nonviolent offenses like drug possession are unjust, the push to overhaul penal policies has been increasingly embraced by elected officials in some of the most conservative states in the country. And for a different reason: to save money….

FULLERTON’S CITY COUNCIL APPROVES LA’S MIKE GENNACO TO EXAMINE THE PRACTICES OF FULLERTON P.D. IN WAKE OF KELLY THOMAS BEATING DEATH

The LA Times’ Richard Winton has the story. Here’s a clip:

The Fullerton City Council late Tuesday gave the go-ahead for an independent review of the city’s embattled Police Department and to investigate the circumstances surrounding the death of a homeless man after a violent encounter with six officers.

Michael Gennaco, who oversees Los Angeles County’s Office of Independent Review and scrutinizes the Los Angeles County Sheriff’s Department’s actions, said the two contracts approved by the Fullerton council allow him to review Kelly Thomas’ death and conduct a separate extensive review of department policies and procedures.

The council’s decision came after a meeting dominated by more than two hours of public comments criticizing how the Police Department and the city handled the July 5 altercation that resulted in Thomas’ death and its aftermath. The meeting grew so heated that three council members briefly walked out.

Illustration from SerenaDraws

Since the advent of DNA evidence, America has been dealing with an ever growing list of men and women who have been found to be innocent of serious crimes after having spent years or decades behind bars.

When the innocent are released we have laws in place (on a state by state basis) that allow an individual and a family to bring suit for the harm done.

But what if the injustice is taken to the extreme? What happens if we find that we have executed an innocent person? What then are we obligated to for the surviving family?

Professor Meghan Ryan has written a provocative paper about this question.

You can find the abstract here. (You can also download the full paper at that same site.)

In the meantime, here’s a clip:

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however.

This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.

Part I traces Willingham‘s story of a man who was executed in the face of evidence suggesting that he was innocent. It takes a look at his relatives‘ recent attempts to clear his name and explains that his story is not yet over. Part II examines the difficulties of exonerating individuals who have been wrongfully executed. It explains how DNA is often essential to posthumous exonerations and notes prosecutors‘ reluctance to release DNA evidence for fears that it could undermine interests in finality of convictions and even prosecutors‘ own convictions rates. Part III explores possible remedies for determinations of wrongful executions….

NEW REPORT TELLS HOW SIX STATES ARE REDUCING INCARCERATION RATES AND COSTS WHILE PROTECTING COMMUNITIES

The ACLU has released a new report called Smart Reform Is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities.

It looks in detail at what six traditionally “tough on crime” states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — in the way of significant reforms to reduce their prison populations and budgets. These same states saw their crime rates drop while the new policies were in place.

The report also looks at some states that are “working toward reform,” with California at the top of the list as the governor works to successfully implement his realignment strategy.

DID SCHOOL ADMINISTRATORS IGNORE WARNING SIGNS BEFORE OXNARD MIDDLE SCHOOLER BRANDON MCINERNEY SHOT AND KILLED CLASSMATE LARRY KING?

The LA Times’ Catherine Saillant, who is covering the trial, writes a nuanced and sad story on the issue that has become a big deal in McInerney’s defense.

Here’s a clip:

Brandon McInerney is the defendant in the Chatsworth courtroom, accused of bringing a gun to his middle school and killing gay classmate Larry King. But as the case unfolds, the school itself has come under scrutiny.

One teacher after another has testified in the murder trial about their deep worries that King’s feminine attire and taunting behavior could provoke problems — and that E.O. Green Junior High administrators ignored them.

It wasn’t just that King, 15, had begun wearing makeup and women’s spiked-heeled boots, witnesses testified. It was that he seemed to relish making the boys squirm at his newly feminized appearance and was taunting them with comments like “I know you want me.”

“They wanted to beat Larry up for what he was doing to them and they came to me because I wanted to keep them out of trouble,” E.O. Green teacher Jill Ekman testified. “I told them that I would work on getting assistance from the office and we would work this out.”

But that didn’t happen, Ekman and others testified. After days of escalating tensions between King and McInerney, McInerney, then 14, brought a handgun to the Oxnard school on Feb. 12, 2008, and shot King twice in the back of the head. King died two days later.

Photo courtesy of Willingham family

SCOTUS REVIEW IS SOUGHT FOR 2 ONLINE FREE SPEECH CASES, ONE INVOLVING STUDENTS AND “DOUCHEBAGS”

(Yes, you’re right, my inner 9-year-old does think it’s funny each time I type the word “douchebag.”)

Ahem…

The Student Press Law Center reports that the lawyers for two cases that involve online communication by students, and First Amendment rights, hope that the US Supremes will agree to hear their cases. Both address similar issues and have the potential to set precedent. Here are the rundowns on the cases, as reported by SPLC:

CASE 1: The Right to Mock in MySpace

“J.S.” was a student at Blue Mountain Middle School in Pennsylvania in 2007 when she was suspended for 10 days after creating a MySpace profile mocking the school principal, James McGonigle. Her parents sued the school district on her behalf for violating her First Amendment rights and their due process rights to discipline their child as they wished.

Both the district court and a three-judge panel of the Third Circuit found in favor of the school district. However, when the full Third Circuit court reheard the case along with an extremely similar one, Layshock v. Hermitage School District, it found in favor of the students in both cases.

CASE 2: The…er….Douchebag Matter

On April 25, a panel of judges from the 2nd U.S. Circuit Court of Appeals concluded that Connecticut student Avery Doninger’s First Amendment rights were not violated when she was prevented from running for class office, and later prevented from accepting the office she was elected to by write-in ballot, after calling school administrators “douchebags” on her blog in 2007.

The Second Circuit determined that the district had been “objectively reasonable” in their decision to punish her for her blog post. It granted the district immunity from the lawsuit but did not address whether Doninger’s rights were violated.

Doninger attorney John Schoenhorn wrote in an email that he intends to ask the Supreme Court to hear an appeal in this case as well because the conflict between the Second Circuit and Third Circuit’s decisions could create confusion.

Here’s a more detailed account of the Doninger case.

Let us hope that the Supremes take on or both cases as the arguments will be interesting.

LAUSD AND THE NEW HOMEWORK POLICY

The LA Times Howard Blume writes about the Los Angeles Unified School District’s new homework policy, and how it is not a simple wrong/right matter.

Here’s how it opens:

Vanessa Perez was a homework scofflaw. The Marshall High School senior didn’t finish all of it — largely because she worked 24 hours a week at a Subway sandwich shop.

Alvaro Ramirez, a junior at the Santee Education Complex, doesn’t have his own room and his mother baby-sits young children at night. “They’re always there and they’re always loud,” he said, explaining his challenges with homework.

The nation’s second-largest school system has decided to give students like these a break. A new policy decrees that homework can count for only 10% of a student’s grade.

Critics — mostly teachers — worry that the policy will encourage students to slack off assigned work and even reward those who already disregard assignments. And they say it could penalize hardworking students who receive higher marks for effort.

Some educators also object to a one-size-fits-all mandate they said could hamstring teaching or homogenize it. They say, too, that students who do their homework perform significantly better than those who don’t — a view supported by research.

But Los Angeles Unified is pressing forward.….

IS THE LOCKE TAKEOVER BY GREEN DOT WORKING? A REPORT CARD

It’s been three years since Green Dot Charter Schools fought for and won the right to take over and try to transform LAUSD’s desperately failing Locke High School. So how is the grand experiment doing?

An LA Times editorial says the progress is not exactly dramatic, yet it is slow, steady and in small increments.

That’s what I’ve heard too. In my experience, however, some miracles occur, not in a blinding flash of light, but in slow motion. Yet they are miracles nonetheless. Maybe the changes at Locke could be said to fall in that category.

Let us hope so.

The editorial is a good one. Here’s a clip. But read it all.

How did Green Dot do at stemming the tide of students who disappear from campus into lives usually plagued by high unemployment and low wages? Solidly better, but not the quick and extraordinary transformation everyone had hoped for. Not yet, anyway.

Charter schools are not the ultimate solution to bad public schools; rather, the solution lies in improving public schools so that they have adequate resources, good teachers and a stimulating curriculum. Like many charter operators, Green Dot has had financial help from outside foundations, help that isn’t available to most public schools.

Still, well-run charter schools have played a valuable role in pressuring public schools to improve, and they can be a lifeline to students who are sinking in crummy neighborhood schools or, in many cases, leaving school far too soon. In the case of Locke, the switch appears to be working, albeit more slowly and haltingly than Green Dot expected.

The charter operator deserves praise for its massive and earnest effort at Locke. It was the first charter school in Los Angeles to accept all of the students within its attendance boundaries, just as public schools do, rather than restricting enrollment and accepting students through a lottery. Students who choose their charter schools are motivated to follow the rules and achieve; public schools take all comers. The Locke takeover served as the model for L.A. Unified’s Public School Choice initiative, in which new schools and some failing schools were turned over to outside groups that filed the most promising applications. Some of those were groups of teachers, others were charter schools. All had to follow Green Dot’s example and admit all students within their enrollment boundaries.

BILL WANTS TO ABOLISHED THE DEATH PENALTY IN CALIFORNIA

Don Thompson of the AP has the story. Here’s how it opens:

A state lawmaker on Monday introduced a bill seeking a public vote on whether California should abolish capital punishment and convert death sentences to life in prison, citing a study that said most condemned inmates die of suicide or old age despite billions in taxpayer costs.

Democratic Sen. Loni Hancock, of Berkeley, said the state can no longer afford the cost of trying capital cases, defending them through a lengthy appeals process and housing inmates in the nation’s most populous death row.

She cited a study prepared by Judge Arthur L. Alarcon of the 9th U.S. Circuit Court of Appeals and Loyola Law School professor Paula M. Mitchell that calls the capital punishment system “a multibillion-dollar fraud on California taxpayers.”

Their analysis, to be published next month, estimates California has spent more than $4 billion on capital punishment since the death penalty was reinstated in 1978. In that time, California has executed just 13 inmates, which works out to $308 million per execution.

“Capital punishment is an expensive failure and an example of the dysfunction of our prisons,” Hancock said in a statement. “California’s death row is the largest and most costly in the United States. It is not helping to protect our state; it is helping to bankrupt us.”

Yeah. What she said.

NBC San Diego also has a report on the bill.