History > 2008 > USA > Justice > Death penalty (III)

Jury Issues First Death Sentence

in New Hampshire Since the 1950s

December 19, 2008
The New York Times
By KATIE ZEZIMA

BOSTON — A New Hampshire jury on Thursday issued the state’s first death sentence in nearly a half-century.

The jury decided that Michael Addison, 28, who was convicted of capital murder last month in the 2006 shooting of a police officer, should die by lethal injection. Defense lawyers said they would appeal the verdict, which will automatically be reviewed by the State Supreme Court.

The police officer, Michael Briggs, 35, was on a bicycle patrol in Manchester, N.H., when he and his partner encountered Mr. Addison and an accomplice, who were wanted for a series of crimes. Mr. Addison shot Officer Briggs once in the head at close range to avoid arrest, prosecutors said.

Mr. Addison was arrested hours later at his grandmother’s house in Boston.

His lawyers admitted that he shot Officer Briggs but argued that the crime was not premeditated. They also said their client should be spared the death penalty because he had a traumatic childhood.

But the New Hampshire attorney general, Kelly A. Ayotte, who argued the case, said Mr. Addison was a hardened criminal intent on killing Officer Briggs, a five-year veteran of the Manchester Police Department and the father of two.

“A life sentence doesn’t do justice in this case,” Ms. Ayotte said during closing statements.

A New Hampshire inmate has not been executed since 1939. The last time a New Hampshire court issued a death sentence was in 1959, for two convicts, but a 1972 ruling by the United States Supreme Court spared their lives.

State law limits the offenses that can result in execution. They include murdering a police officer, murder for hire and murder in the course of kidnapping.

“The death penalty hasn’t been used that often in New Hampshire, probably because there are not many death-penalty-eligible cases,” said Albert E. Scherr, a professor at Franklin Pierce Law Center, in Concord. “It’s a small state, and there are not much more than 30 homicides a year.”

This is the second capital murder trial that Ms. Ayotte’s office has prosecuted this year.

In October, a jury convicted John J. Brooks, a millionaire businessman, of capital murder for hiring three men to kill a handyman who Mr. Brooks believed had stolen from him. A jury last month rejected the death penalty in Mr. Brooks’s case and sentenced him to life in prison.

The two cases have raised the issue of race in a state that is 95 percent white. Officer Briggs and Mr. Brooks are white; Mr. Addison is black.

Judge Kathleen A. McGuire, who is presiding over the Addison case, said race had not precluded Mr. Addison from receiving a fair trial. Ms. Ayotte pointed out in an interview after the verdict that the jury foreman was black. Also, jurors signed a statement saying race had played no role in their decision.

But Professor Scherr expressed skepticism.

“Brooks was very wealthy and white; Addison was not wealthy and black,” he said. “You can’t not think about what role that might have had.”

    Jury Issues First Death Sentence in New Hampshire Since the 1950s, NYT, 19.12.2008, http://www.nytimes.com/2008/12/19/us/19death.html

In Georgia, Push to End Unanimity for Execution

December 17, 2008
The New York Times
By ROBBIE BROWN

ATLANTA — For three and a half years, prosecutors in Georgia carefully built their argument for sentencing Brian G. Nichols to death for a rash of murders in downtown Atlanta in 2005. With Mr. Nichols admitting to killing four government employees, it seemed like an open-and-shut case in a state where the death penalty remains common.

But on Friday, three jurors shocked the legal community here by failing to agree with nine others on a death sentence and therefore, under Georgia law, sparing Mr. Nichols from execution. Without a unanimous sentence from the jury, a judge instead gave him 11 life sentences, plus 485 years in prison without parole.

Now, just days after the decision, Georgia legislators have began lining up to introduce bills eliminating the requirement that juries be unanimous for a death sentence. Hard-on-crime lawmakers have long favored easier rules on death sentencing, but the Nichols sentence has given new urgency to their cause.

“Unfortunately, you have people who say they’re willing to consider the death penalty, but when they get on a jury, it becomes clear that they’re actually death penalty opponents,” said Representative Barry A. Fleming, a Harlem Republican who twice sponsored efforts to revoke the unanimity requirement. Most recently, the proposal died in the State Senate in March.

Jurors in the Nichols trial reported that one juror was so opposed to the death penalty that she plugged her ears with earphones and solved a crossword puzzle during the sentencing phase, said Paul Howard, the district attorney of Fulton County.

Representative David Ralston, a Blue Ridge Republican who is chairman of the House Non-Civil Judiciary Committee, said, “The Nichols case, because it’s so recent and so high profile and the guilt of the defendant is so clear, has provided a great deal of momentum to the supporters of a change.”

Legislators have not decided who will introduce the proposal to end unanimity or how many jurors’ votes it will require for a death sentence, Mr. Ralston said. But if the proposal passes, Georgia will become the only state to allow non-unanimous juries to sentence defendants to death.

The federal government also requires a jury to be unanimous to impose death. (In Alabama, Delaware, Florida, Montana and Nebraska, judges can impose death sentences after a jury issues its recommendation.)

It is not clear, however, that a Georgia proposal can withstand a constitutional challenge. Carol Steiker, a death penalty expert at Harvard Law School, said it could violate the 14th Amendment guarantee of due process and the Eighth Amendment ban on cruel and unusual punishment. Although the Supreme Court allows non-unanimous juries in many cases, Ms. Steiker said, death sentences require the highest standards.

“As the Supreme Court tends to say, ‘Death is different,’ ” she said. “It’s different in severity and it’s different in finality. This case really illustrates one of the problems with states trying to maintain thoughtful and circumscribed death penalty rules. There’s incredible pressure on these legislatures to change the laws at critical moments after high-profile cases.”

Even critics of the death penalty worried about the message sent by Mr. Nichols’s sentence.

“This case shows how arbitrary and irrational the death penalty can be,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “People shake their heads when they hear that someone got the death penalty for robbing a 7-Eleven, and Brian Nichols got life in prison for his heinous crimes.”

There may be another opportunity for prosecutors to sentence Mr. Nichols to death. District Attorney Howard has suggested that federal prosecutors could try him for one of the killings because a victim, David Wilhelm, was a United States customs agent. The Justice Department will review the evidence before making any decisions, said Patrick Crosby, a spokesman for the department.

Ever since Mr. Nichols shot four people and led the police on a daylong chase across Atlanta on March 11, 2005, his case has generated tremendous attention, for both the brutality of his crimes and the exhaustiveness of his trial.

The county spent more than $3 million on a 54-count trial featuring 144 witnesses and 1,200 pieces of evidence, and much of that money could have been saved had the prosecution accepted Mr. Nichols’s offer to plead guilty in exchange for a sentence of life without parole. Mr. Howard scored a victory by convicting Mr. Nichols on all counts, but his primary goal was always a death sentence.

For years, the case’s length and cost have fueled criticisms of Georgia’s public defender system. State Senator Preston W. Smith, a Rome Republican, accused defense lawyers of spending like “drunken sailors on shore leave” to provide an “O. J. Simpson-style defense, all on the taxpayer’s dime.”

And frustration over the trial’s handling intensified after the sentencing.

Mr. Dieter, of the Death Penalty Information Center, said the case’s outcome demonstrated the growing difficulty of achieving a death sentence, even in the South. Across the country, death sentences have declined steadily over the past decade, to 115 in 2007 from 306 in 1998.

This downward trend reflects the public’s distrust of the death penalty and the increased reliance on the life-without-parole sentencing option, said Stephen B. Bright, a lecturer at Yale Law School and director of the Southern Center for Human Rights, who opposes the death penalty.

“To get 12 people to decide to kill somebody is a difficult undertaking,” Mr. Bright said. “People are overwhelmingly in favor of the death penalty when the Gallup poll calls. But when you ask them in a courtroom to actually impose the death penalty, a lot of people feel very uncomfortable.”

Adam Liptak contributed reporting from Washington.

    In Georgia, Push to End Unanimity for Execution, NYT, 17.12.2008, http://www.nytimes.com/2008/12/17/us/17death.html

U.S. Reverses Death Penalty Bid in Drug Case

December 13, 2008
The New York Times
By BENJAMIN WEISER

The United States attorney general, Michael B. Mukasey, has reversed a decision made by his predecessor and will not seek the death penalty in a federal murder case in Brooklyn that is set to go to trial next year.

The unusual decision, which was made public on Friday, came in a case in which a judge had specifically asked that Mr. Mukasey review an earlier decision to seek capital punishment made by Alberto R. Gonzales, who announced his resignation as attorney general in August 2007.

“I just think that a clearheaded independent evaluation is in order with regard to this case,” the judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, said a month later, after President Bush made known that he would name Mr. Mukasey as Mr. Gonzales’s successor.

Although Judge Garaufis said he was “agnostic about the outcome” of such a review, he suggested that he did not agree with Mr. Gonzales’s view that capital punishment was warranted.

“It’s important for the Justice Department to examine the use of the very limited resources of the United States attorney’s office and of the court in pursuing the death penalty in this case,” the judge said.

The defendant, Gerard Price, was charged in a 1999 drug-related killing that could have carried the death penalty on conviction. Prosecutors charged in a federal indictment that Mr. Price was one of the leaders of a narcotics trafficking organization.

One of Mr. Price’s lawyers, Carl J. Herman, said in an interview on Friday that he received a phone call from a prosecutor late Thursday night informing him of the decision. He then told his client, who is being held in the Metropolitan Correctional Center in Manhattan.

Mr. Price, who has pleaded not guilty, could still be sentenced to life in prison if he is convicted, but he was pleased to hear that “his life is no longer hanging in the balance,” Mr. Herman said. “He had a big smile on his face and he shook my hand and he said, ‘It’s been a long time.’ ”

The Price case is not the first capital case over which Judge Garaufis has presided.

In March 2007, he imposed the death penalty on a Staten Island man, Ronell Wilson, who had been sentenced to death by a jury for killing two undercover police detectives in 2003. That case was the first successful federal death penalty prosecution in New York in more than 50 years.

Mr. Herman declined on Friday to speculate about why Mr. Mukasey had decided to reverse the earlier decision to seek the death penalty.

Spokesmen for Mr. Mukasey and Benton J. Campbell, the United States attorney in Brooklyn, declined comment on the decision, which prosecutors disclosed in a note to the judge on Friday.

Kevin McNally, a lawyer in Kentucky who is director of the Federal Death Penalty Resource Counsel Project, which provides information to defense lawyers in capital cases, called Mr. Mukasey’s decision significant.

“It suggests that toward the end of the Bush administration, some rationality has returned” to the Justice Department, he said.

In seeking capital punishment, prosecutors had cited claims like a lack of remorse by Mr. Price, the fact that the killing occurred in the course of a narcotics crime and the danger that Mr. Price could pose a continuing threat.

Mr. Herman said that the defense, in opposing capital punishment, cited factors like Mr. Price’s difficult childhood, a learning impairment and emotional problems. He added that Mr. Price had previously been tried for the murder in state court and was acquitted.

    U.S. Reverses Death Penalty Bid in Drug Case, NYT, 13.12.2008, http://www.nytimes.com/2008/12/13/nyregion/13death.html

Ethics Dilemma for Lawyers

When Inmates Seek Death

November 19, 2008
Filed at 2:42 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

LOUISVILLE, Ky. (AP) -- John Delaney faced the toughest moment of his legal career -- his condemned client wanted to drop his appeals and die by injection, an act Delaney opposed and had been trained to try to prevent.

''What do you say?'' asked Delaney, a public defender in northern Kentucky who represented Marco Allen Chapman.

It's a question that has arisen 131 times since states resumed executions in 1977, and each time it leaves defense lawyers struggling against their training to act in the best interest of their clients and justice.

''We're trained as lawyers to be an advocate for someone and fight as hard as we can,'' said Stephen Harris, a University of Baltimore law professor who represented execution volunteer John Thanos in Maryland in 1994. ''Here's someone who says, 'I don't want you,' then, 'I want to die.'''

The first volunteer after the U.S. Supreme Court reinstated the death penalty in 1976 was Gary Mark Gilmore, put to death a year later by a firing squad in Utah for killing a gas station attendant. The 128 men and two women who have followed suit often gave similar reasons -- mainly remorse, a desire for atonement and not wanting to spend their lives in prison -- according to the Death Penalty Information Center, an anti-capital punishment group that compiles statistics on executions.

About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned their appeals and asked for their sentences to be carried out, said Richard Dieter, executive director of the center and a law professor at Catholic University in Washington. Each time, the inmate either fired the defense lawyer or told them to stop filing appeals.

''It amounts to the same thing,'' Dieter said.

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law.

''Their hands are pretty well tied,'' Mello said. ''These are the cases that haunt you. This is the most hideous of cases.''

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994.

''I really liked Keith,'' said Cahill, a public defender in Boise. ''You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do.'''

Harris, who opted not to try to talk Thanos into sticking with his appeals, said cases of death penalty volunteers always come with second thoughts, but knowing that a client went willingly to his execution is something attorneys just have to come to grips with.

''I don't know what was in his mind,'' he said. ''You always have regrets about that stuff. But I think I made the right decision.''

Chapman, 36, is to die Friday at the Kentucky State Penitentiary in Eddyville for killing a 7-year-old girl and her 6-year-old brother six years ago in a crack cocaine-fueled attack on a family for whom he'd worked as a handyman.

Delaney, 49, was assigned the case in 2004, and Chapman quickly made it clear that he didn't want a defense and didn't want his life spared. Chapman said at several court hearings and in letters to judges that he wanted to plead guilty and be sentenced to death.

To Delaney, Chapman's reasoning for dropping his appeals made sense on some level.

''Marc wanted to try to make amends to the family,'' Delaney said.

That didn't make it easy to step out of the way of Chapman's execution. Delaney repeatedly tried to get the inmate to at least let a jury determine what sentence to impose. He refused.

Delaney told Chapman to fire him before pleading guilty.

''I wasn't going to help him,'' Delaney said. ''He wasn't in left field for what he wants, though.''

A judge granted Chapman's request to dismiss Delaney and appointed him standby counsel in case Chapman changed his mind.

Delaney tells himself he did everything possible for his reluctant client.

If the execution goes through as scheduled Friday night, he said, he'll be having a drink and tell himself that at least one more time.

    Ethics Dilemma for Lawyers When Inmates Seek Death, NYT, 20.11.2008, http://www.nytimes.com/aponline/us/AP-Suicide-By-Court.html

Execution of Georgia Man

in Killing of Officer Is Stayed a Third Time

October 25, 2008
The New York Times
By ROBBIE BROWN

ATLANTA — A federal appeals court on Friday halted the execution of a Georgia inmate convicted in the 1989 killing of a police officer, the third time in 16 months that a stay of execution has been ordered in the case.

The inmate, Troy A. Davis, 40, was scheduled to die by lethal injection on Monday for the murder of Mark A. MacPhail, a Savannah police officer.

In deciding to consider a new hearing for Mr. Davis, the United States Court of Appeals for the 11th Circuit, in Atlanta, asked his lawyers to prove that no reasonable person today would find him guilty.

Since Mr. Davis’s conviction in 1991, seven witnesses have recanted their testimony, including two who said they had felt pressure by the police to testify against Mr. Davis and three who said a different man had admitted to the killing. Prosecutors presented no DNA evidence or murder weapon, although they linked bullet casings found at the scene to a gun they said Mr. Davis had used in an earlier shooting.

The case has bounced around the judicial system, appearing before at least 29 judges in seven types of reviews. The Georgia Supreme Court twice denied Mr. Davis a new hearing, and the United States Supreme Court and the Georgia State Board of Pardons and Paroles have issued stays of execution before rejecting his appeal.

“It’s extraordinary for three stays to be issued in one case,” said Stephen B. Bright, a visiting lecturer at Yale Law School and president of the Southern Center for Human Rights. “Clearly, the case has been very troubling to each of the courts that examined it.”

Mr. Davis’s lawyers have asked the appeals court to decide whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of the innocent, the same question that the Supreme Court declined to consider.

If the appeals court agrees to hear the case, the stay of execution will continue until a decision is reached. If not, Georgia may proceed with the execution.

The outcome is difficult to predict, Mr. Bright said, because previous decisions in the case have been so close.

The Georgia Supreme Court voted 4 to 3 in March against a new trial, and the United States Supreme Court made the unusual decision to meet in conference twice before declining the case.

Officer MacPhail was shot to death early on Aug. 19, 1989, while moonlighting as a security guard. He was breaking up a fight between two men over a beer in a Burger King parking lot when, prosecutors say, Mr. Davis fired three shots from a pistol into his leg, chest and face. Mr. Davis says he left the scene before the shooting.

Mr. Davis has received an outpouring of publicity and support, including demonstrations against his execution on Thursday in 35 cities around the world.

“It’s another small victory in a big war,” said Mr. Davis’s sister, Martina Correia. But the officer’s mother, Anneliese MacPhail, called the ruling the latest episode in a recurring nightmare. “Why in the world do we have to go through this again?” she asked. “I thought when the Supreme Court in Washington ruled, it would be over.”

    Execution of Georgia Man in Killing of Officer Is Stayed a Third Time, NYT, 25.10.2008, http://www.nytimes.com/2008/10/25/us/25execute.html

Inmate Who Says He's Too Fat to Die

to Be Executed

October 14, 2008
Filed at 4:34 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

CINCINNATI (AP) -- A double murderer who says he's too fat to be executed humanely has passed a pre-execution exam and is cleared to receive a lethal injection Tuesday.

Richard Cooey, 41, was given a visual examination by the state when he arrived at the death house on Monday, and officials found nothing that should cause a problem in delivering the deadly chemicals.

The 5-foot-7, 267-pound Cooey had tried to avoid execution by arguing that his obesity would prevent humane lethal injection because viable veins in his arms are hard to find.

A more detailed examination was to be conducted Tuesday morning, when he is scheduled to die for killing two college students in 1986.

The U.S. Supreme Court on Monday denied one of two pending appeals to stop the execution. It turned down without comment Cooey's claim that his obesity was a bar to humane lethal injection. The argument also had been rejected by a federal appeals court in Cincinnati and the Ohio Supreme Court, with both courts ruling that he missed a deadline for filing appeals.

Cooey was still waiting for a ruling on his appeal of the Ohio Supreme Court's dismissal Monday of his complaint that the state's protocol for lethal injection could cause an agonizing and painful death. He wanted the state to use a single drug rather than a three-drug combination, and asked for a stay of execution pending a hearing on that motion.

Cooey is 75 pounds heavier than when he went to death row -- the result of prison food and 23-hour-a-day confinement, his lawyers said.

They also argued that a migraine medicine prescribed by a prison physician could reduce the effect of the anesthetic used as part of the three-drug lethal injection.

They claimed that Ohio has a history of botched executions.

The last Ohio inmate to be executed was Christopher Newton -- who was similar in size to Cooey -- in May 2007. The execution team had trouble putting IVs in his arm, delaying his execution nearly two hours. There were similar problems in the execution of another inmate in 2006.

Cooey made an earlier trip to the death house. But a U.S. District Court judge intervened hours before his scheduled execution in July 2003 when the Ohio Public Defender's office said it needed more time to assess the case after an appeals court dismissed his previous attorneys for inadequate representation.

Cooey and a co-defendant were convicted in the sexual assaults and slayings of University of Akron students Dawn McCreery, 20, and Wendy Offredo, 21, in September 1986. His co-defendant was 17 and was sentenced to life in prison because of his age.

The Ohio Board of Parole and Gov. Ted Strickland have refused Cooey's plea for clemency.

Cooey dined Monday evening on the special meal he ordered, including T-bone steak with A-1 sauce, onion rings, french fries, four eggs over easy, toast with butter, hash browns, a pint of rocky road ice cream, a Mountain Dew soft drink and bear claw pastries.

------

On the Net:

Ohio Death Row: http://www.drc.ohio.gov/Public/deathrow.htm

    Inmate Who Says He's Too Fat to Die to Be Executed, NYT, 14.10.2008, http://www.nytimes.com/aponline/us/AP-Death-Penalty-Ohio.html

Supreme Court

Won’t Revisit Death Penalty Case

October 2, 2008
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Tuesday voted, 7 to 2, not to reconsider its decision last June that the death penalty is unconstitutional punishment for the rape of a child.

On the first day of its new term, the court slightly amended its June ruling, but left the basics of it alone. As a result, death penalty laws in Louisiana and five other states that allowed the execution of child rapists in instances in which the child was not killed remain void.

Justice Anthony M. Kennedy, writing on Tuesday for the five justices in the original majority, said some facts that the court was unaware of when it ruled on June 25 did not alter the court’s analysis.

The court’s announcement that it would not rehear the case, which originated in Louisiana, was not a surprise, since petitions for rehearing cases already decided by the Supreme Court are very rarely granted. But the circumstances of the case, known as Kennedy v. Louisiana, were unusual, in that the arguments and deliberations were accompanied by a factual error that surfaced only after the justices ruled.

In its 5-to-4 decision in June, the court reasoned that, because so few states allowed the execution of child rapists, there was a national consensus against applying the ultimate punishment to such criminals. Not long afterward, it was disclosed that the lawyers arguing the case, and the justices themselves, had been unaware of a 2006 amendment to the Uniform Code of Military Justice, specifically making child rape committed by service members a capital crime.

Thus, the State of Louisiana argued in urging the justices to reopen the case, the high court should review its conclusion that there was a national consensus against the execution of child rapists.

Not so, Justice Kennedy wrote on Tuesday. The 2006 change to the military-justice code merely tinkered with a statute that had authorized capital punishment for the rapes of children (and adults) all along, he wrote. Besides, he said, “authorization of the death penalty in the military sphere does not indicate that penalty is constitutional in the civilian context.”

In the Louisiana case, Patrick Kennedy was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter. Joining Justice Kennedy in the majority ruling voiding the penalty in June were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, who were in the minority in June, voted on Tuesday not to rehear the case. Justice Scalia called the original decision disingenuous, but suggested that nothing would have changed it. “The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision,” Justice Scalia wrote on Tuesday.

Justices Clarence Thomas and Samuel A. Alito Jr. voted on Tuesday to rehear the case, but did not offer reasons.

    Supreme Court Won’t Revisit Death Penalty Case, NYT, 2.10.2008, http://www.nytimes.com/2008/10/02/washington/02scotus.html

    Related > http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf