Herman Lindsay Freed From Florida Death Row, Will David Eugene Johnston Be Next?

Earlier this month, Herman Lindsay was freed from Death Row after the Florida Supreme Court ruled that there just wasn't enough evidence to find Mr. Lindsay guilty of anything -- much less sentence him to death.  Herman Lindsay became a free man this month, after being tried and convicted in 2006 for the robbery and murder of a pawn shop owner back in 1994.   In an unianimous verdict, the high court found that the trial court judge made a mistake in allowing the conviction to stand.

Meanwhile, over in Orlando, David Johnston is fighting to get off Death Row, as well....

Having decided the fate of Herman Lindsay, the Florida Supreme Court now holds the life of David Eugene Johnston in its hands.  Convicted of the 1983 murder of an elderly woman in her Orlando home, Johnston was scheduled to die in May.  However, the high court halted the execution in order for more DNA testing to be done.  There was a skirmish between prosecution and defense based upon missing DNA samples, and some accusations of mishandling of the DNA itself.

The Florida Supreme Court put a kabash to all this by ordering more testing, and an agreement was reached between counsel for an outside lab, based in North Carolina, to take the remaining samples and test them to see if Johnston's male chromosomes appear in the crime scene evidence.

For David Eugene Johnston, the test results mean everything.  If the North Carolina lab returns with results that exonerate him, then he may be joining Mr. Lindsay on the Florida highways and byways.  If not, then his execution may well be rescheduled sometime soon.

Another Example of the Power and Importance of the Florida Supreme Court

Within the past sixty days, two men sitting on Death Row -- and their loved ones -- have looked to the justices sitting on the Florida Supreme Court to make decisions that have literal life and death results.  

It's important to remember that the appellate process is an important and vital component to justice -- just because there is a trial, that doesn't mean that justice has been found.  And just because there is a conviction, it doesn't mean that the fight is over. 

To learn more about who sits on the Florida Supreme Court, go here.

The Death Penalty in Japan - Three Executions This Week

Here in the United States, it depends upon which state you're considering -- some states have the death penalty, some do not. Some are zealous in executing those on Death Row (think Texas), others have inmates living on Death Row for years and years (think Oregon).

However, in Japan, things are different. Japan has the death penalty for treason and murder (usually, multiple murders with aggravating factors). There's only one method of execution: hanging. And the execution is performed within a prison facility, in an execution-designed room.

The Japanese inmate is told that he is going to die on the date of the execution. No advance notice. He or she does get a last meal of their choosing. No one is invited to watch the hanging, and the inmate's family (as well as his lawyers) are told of the death after the execution has taken place.

The Japanese Death Row is different than the United States, too. All Death Row inmates live in solitary confinement. Two exercise periods per week are given with no exercise allowed in the cells, and they can have only three books. No TV. Visits are not often and all visits are supervised. Death Row inmates cannot talk with each other.

This week, Japan executed Three Men

In a press release yesterday, the locals as well as the world learned that three men had been hung by the Japanese Government as punishment for their crimes. This brings the total number of executions in Japan for this year to 7 (Japan executed 4 men this past January). Last year, Japan carried out 15 death sentences.

The three men? All convicted of murder, ranging in age from 25 to 41. Hiroshi Maeue, 40, was convicted of three murders in 2005. Maeue was found guilty of finding victims through the internet, where they had posted on a type of suicide forum. Yukio Yamaji, 25, was convicted of the sexual assault and murder of two sisters, also in 2005. Chen Detong, 41, was convicted of the robbery and murder of three roommates, back in 1999. Two of the hangings took place in the Osaka facility, the third in Tokyo.

Let's Consider the Differences

Japan doesn't take as long to go from conviction to execution. There's no advance warning to the inmate, and there's no comfort to the inmate or his loved ones by any goodbye, or being present at the time of execution. Of course, the victims' families aren't allowed the opportunity of closure by being present at the execution, either. No lawyers are there. And, the method of execution is considered by many to be cruel and unusual punishment - one wonders why Japan doesn't follow the trend of lethal injection. Capital punishment may not happen as often as it does in the United States, but when it does occur it is a secretive event whose speed and absence of review and witness would not be tolerated here.

If there must be capital punishment in this country -- WHILE there is capital punishment in this country -- at least we can take some small measure of comfort in recognizing all the benefits that our due process protections provide us.

It is a horrific thing, to consider that the government kills its own citizens. But at least we get to be present to take comfort in being there for those last moments, and thank God we have procedures in place (like WITNESSES) to make sure those deaths are not cruel and inhumane.

Pending Senate Bill Will Expand Federal Death Penalty

Last week, as an amendment to the Department of Defense fiscal authorization bill to cover 2010 expenses, the U.S. Senate passed the Matthew Shepard Hate Crimes Prevention Act.

This week, the Senate passed an amendment to the Act - and if this becomes law, it will allow capital punishment for those found guilty of hate crimes if certain circumstances are met.

Right now, this Death Penalty Amendment to the Hate Crimes Prevention Act can be killed: in September, the joint House-Senate has to reconcile the two versions of the legislation (House version, Senate version) before it comes to a full Congressional vote. And, assuming it stays put, it still will be a bill awaiting Presidential approval before it becomes law.

Still, this is a scary thing to have happened, and it shows the extent to which the death penalty is considered a worthwhile form of punishment by many in this country today.

What is the Matthew Shepard Hate Crimes Prevention Act? If enacted, it will allow the Justice Department to investigate and prosecute hate crimes based on the victim's actual or perceived sexual orientation, gender, gender identity, or disability - just as the feds are already allowed to do when faced with hate crimes provoked by the victim's race, color, religion, or national origin.

Does the name "Matthew Shepard" sound familiar? It should. This was a notorious case out of Wyoming where a young man was tortured and murdered - targeted because he was gay. The story was made into a TV movie starring Sam Waterston and Stockard Channing.

By the way, neither defendant who was tried and convicted for the murder of Matthew Shepard was sentenced to death. Just something to think about.

Considering the Importance of Sonya Sotomayor and Capital Punishment, looking back to Furman v. Georgia and its 5 -4 vote

The news has been filled this week with the questioning of the Latina who may well be our next U.S. Supreme Court Justice, and some may be wondering why all the hoopla. Well, let's look back to 1972, where one single justice's vote successfully halted capital punishment in this country for four years.

Furman v. Georgia, 408 U.S. 238 (1972)

This was a case of a robbery gone bad. Billy Furman was robbing a house in the middle of the night and the homeowner woke up. The homeowner challenged the burglar, and ended up dead. Billy Furman gave two versions of what happened: in one statement, he was trying to escape, tripped, and his gun went off, killing the homeowner. In another statement, Furman shot blind into the darkness, trying to get away, and inadvertently shot the victim.

Either way, someone died during the commission of a felony and under Georgia law, Billy could die for this. And after a jury trial, Bill Furman was sentenced to death for killing the person whose home he was trying to rob.

The case made its way through the appellate courts to the U.S. Supreme Court. Furman's lawyers' question to the high court: does imposing the death penalty constitute cruel and unusual punishment under the 8th and 14th Amendments of the U.S. Constitution?

One page opinion - death penalty was unconstitutional

After reading briefs from the Furman team as well as the State of Georgia and various interested parties in their "friend of the court" briefs (amicus curaie), a majority vote of 5 to 4 held that the death penalty violated the United States Constitution.

One vote, by a single justice was the deciding factor. A very, very important swing vote.

Lots of written explanations by the Justices

Of course, that one page opinion didn't get filed of record all by itself. The justices wrote to justify their positions on the vote, filing concurrences with the majority opinion and formal dissents to the outcome.

Every single justice wrote his own explanation of why he voted the way he did in Furman v. Georgia:

Justice William Brennan voted yes, believing that the death penalty was unconstitional, period. "...Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the [Cruel and Unusual Punishment] Clause, however, was left behind with the 19th century. Our task today is more complex. We know "that the words of the [Clause] are not precise, and that their scope is not static." We know, therefore, that the Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ... That knowledge, of course, is but the beginning of the inquiry."

Justice Thurgood Marshall agreed with Brennan. "...The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. Hence, we must proceed with caution to answer the question presented. By first examining the historical derivation of the Eighth Amendment and [408 U.S. 238, 316] the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint. Candor is critical to such an inquiry. ... Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error."

Justice Potter Stewart didn't believe that the way that the death penalty was imposed was constitutional. He voted yes. "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Justice William Douglas had problems with an apparent arbitrary imposition of the death penalty and on those grounds, found capital punishment to be unconstitutional. He also voted yes. "The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

Justice Byron White agreed with Justice Douglas on the arbitrariness concern. Another yes vote. "The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment."

Justice William Reinquist voted no. "The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded."

Justice Burger voted no. "If we were possessed of legislative power, I would either join with [Justice Brennan and Justice Marshall] ... or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment."

Justice Blackmun voted no. "...I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided."

Justice Powell voted no. "It is the judgment of five Justices that the death penalty, as customarily prescribed and implemented in this country today, offends the constitutional prohibition against cruel and unusual punishments. The reasons for that judgment are stated in five separate opinions, expressing as many separate rationales. In my view, none of these opinions provides a constitutionally adequate foundation for the Court's decision."

Last Words from Death Row Inmates

TruTV has published a collection of the last words uttered by those executed in various states across this country, just before they died. And while some may feel that these efforts of TruTV are sensational tabloid marketing, ghoulish and crass -- there is another argument to be made.

All too often, those living on Death Row are dehumanized. Perhaps dehumanizing here is a simple, human response to a situation where that individual is subject to death at the hands of the government - and therefore, at some level, by you and me. (We the people and all....)

However, when you read the words that these folk have said -- just minutes before they meet their Maker -- you get a good idea of who they were as people....

Some of them loved their families, and reached out to give them comfort.
Some asked for forgiveness, some spoke of the Lord.
A few said little at all.
Some of them seem bright, some of them seem dull.
Some took responsibility for their crimes, and some did not.

Photographs accompany the collection of statements. It's a site that is definitely worth your time to visit.

Claire Phillips' Portraits of Death Row - Foreign Citizens Sentenced to Die

Claire Phillips is a British artist who has traveled throughout the United States on a tour of Death Row facilities. Although she's not allowed to bring any of her tools of the trade with her - no sketchbooks, no brushes, no palette knives or pens - she spends sufficient time with her chosen subjects to replicate their images from memory. And Claire Phillips does a very good job.

In a recent gallery viewing, her portraits included:

Krishna Maharaj, a British subject who was convicted of murder here in Florida and originally sentenced to death. Luckily, efforts were successful to move Mr. Maharaj off Death Row, and his sentence was commuted to life imprisonment. Unfortunately, additional work was not successful in lessening that punishment and Mr. Maharaj can expect to spend the rest of his days in a Florida prison.

Linda Carty is an Englishwoman (she hails from the British Virgin Islands) who faces execution in Texas. With the current state of review (she has exhausted her state remedies and is pursuing a federal appeal), Ms. Carty may not be able to escape capital punishment.

According to the official summary from the Texas site, "[o]n 05/16/2001 Carty and three co-defendants invaded the home of a 25 year old female. The victim and her three day old baby were kidnapped and two other victims were beaten, duct taped, and left in the residence. The 25 year old female was hog-tied with duct tape, a bag was taped over her head, and she was placed in the trunk of a car. This victim died from suffocation."

Apparently, Linda Carty and her codefendants were accused of killing a mother in order to keep her newborn baby. The co-defendants took plea deals, leaving Linda Carty to face trial alone for the crimes. Without any forensic evidence tying her to the crime, and no eyewitness testimony, Carty was nevertheless found guilty and sentenced to death.

Earlier this year, Houston law firm Baker & Botts filed a federal appeal asking for a new trial for Linda Carty based, in part, upon ineffective assistance of counsel. The British Government filed its own amicus in her case with the Fifth Circuit Court of Appeals in New Orleans last month. That appeal is pending.

Recommended Websites: Jeffrey Deskovic Speaks

Jeffrey Deskovic has a unique story, and with it comes a perspective that can help us all understand the American criminal justice system a bit better than before. You see, Mr. Deskovic spent 16 years in prison for a murder and rape for which he was innocent.

Arrested when he was only 16 years old, the police coerced a false confession from the teenager after 7.5 hours of interrogation. Using that conviction, Deskovic was convicted and sentenced to 15 years to life, even though: (1) DNA evidence showed that semen inside of the victim; and (2) hair found on the victim were not a match for Deskovic, supporting his claims of innocence.

It was only through the efforts of the Innocence Project that Jeff Deskovic was freed - and this was not due to the courts reversing his case on appeal. No.

The only way that Mr. Deskovic was freed was because the Innocence Project collected the DNA evidence, compared the DNA to the state database, and discovered the real evildoer. Once again, thank God for the Innocence Project.

Now that he's fully exonerated, Jeffrey Deskovic devotes his time to fighting against wrongful convictions in this country. One of the ways that he does this is via the internet, and at his website, you can read about:

1. Mr. Deskovic's speechmaking around the country, including his national fight against the death penalty (he points out that if he had been 18 and not 16 when was convicted, he may well have been executed before he could have been exonerated under the current death row timelines);

2. Mr. Deskovic's articles that published in various media across the country, urging the repeal of the death penalty in various states as well as on the federal level;

3. Forum discussions where site members (membership is free) discuss topics of interest, such as the position of Judge Sotomayor on the death penalty (FYI, Jeff Deskovic is against Sotomayor being appointed to the U.S. Supreme Court).

VISIT Recommended Website: Jeffrey Deskovic Speaks.

In Depth Look at the Law: The Judges' Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant's Right to Effective Assistance of Counsel

At this juncture, we've got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender's office as well as a beleaguered OCCCRC. So, who's next at bat? The private attorney licensed by the State of Florida.

Let's consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn't want to represent the poor people of Florida - the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature's action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don't you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial "effective assistance of counsel" under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you're the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn't giving that judge much of a choice.

Continue Reading...

Innocent Man May Be Executed in Georgia - The Troy Davis Case

Around twenty years ago, a cop was gunned down in Savannah and Troy Davis was caught and convicted for the crime. Nineteen years old at the time, he was sentenced to die, and he has watched all this time pass - 1989 to today - from a small, bleak Death Row cell over in Georgia.

Teen Sent to Die Without Any Physical Evidence

Davis has consistently maintained he is innocent of this crime. Over the years, the evidence used against him has slipped away: 7 of the 9 witnesses who testified Davis did it have changed their minds and recanted their testimony. Oh, and there never was any physical evidence linking Troy Davis to the crime. It's all eyewitness testimony.

No gun. No bullets. No blood or bone or anything else to use DNA testing on - like they seem to always have in CSI or NCIS.

One of Two Remaining Un-recanting Witnesses Is Rumored to be the Real Killer

Meanwhile, there has been some witness identification of another man as being the shooter - a man who is still free, and has been free all the while that Troy Davis has lived his life behind bars. And, rumors have it that this shooter just happens to be one of the two remaining witnesses that pointed their fingers at Troy Davis and didn't recant later. Wow.

Why the Troy Davis Case?

We're visiting the Troy Davis case this week, because the U.S. Supreme Court isn't. The high court has just taken off on its summer vacation, and before they hung up their "gone fishing" sign, a clerk took the time to notify Davis's attorney that they'll get around to deciding his case when they come back to work in September.

Which means that Troy Davis, who has been through the wringer more than once already (he was two hours away from being executed in September 2008 when the U.S. Supreme Court stayed the killing), must wait some more.

The U.S. Supreme Court has Waffled

Last September, the U.S. Supreme Court halted Troy's execution. Then - less than two weeks later - the Supremes decided they wouldn't intervene, and released the hounds as it were for Georgia to proceed with the execution. The cavalry appeared in the form of a federal appeals court in Georgia, which granted a temporary stay of execution and let Davis have the chance to continue his appellate fight.

By its decision, the U.S. Supreme Court last fall was telling Georgia that it would not consider the legal issue of whether or not it is unconstitutional to impose the death penalty when new evidence has been brought forth that shows the inmate's innocence. (This doesn't seem like a hard question to answer, but they refused it anyway.)

With Troy Davis back before them, Georgia considered the possibility that there might be evidence that proved Davis to be innocent, and then denied his request for a new trial - but was nice enough to hold off on capital punishment to let Troy Davis return to the U.S. Supreme Court.

Oh. The Georgia Pardons and Parole Board held hearings, too, and even interviewed Davis and the witnesses all over again ...and then denied clemency. Don't know much about this Board, and apparently no one else does either. No records are made; their hearings aren't open to the public.

Davis is black, the cop was white - and Davis is asking for a new trial, not a free pass

Did I fail to mention before this that Davis is black, the cop was white? Well, some folk think this fact is important.

Did I fail to point out that all Troy Davis is asking for is just the chance to have a trial where this exculpatory evidence can be brought before a factfinder? He's not asking for mercy, he's asking for justice.

Troy Davis has some very big supporters in his corner. Like the Pope.

And lots of people think that Troy Davis deserves another trial, to have a chance to bring forth this new evidence. Over 60,000 U.S. citizens have signed a petition asking for just that ... and there's been a lot of public outcry as well, from some people that you may recognize, like:

1. The Pope. Yes, Pope Benedict XVI knows about Troy Davis's case.
2. The European Union. Yes, all 27 countries have cohesively offered their support.
3. Desmond Tutu of South Africa, winner of the Nobel Peace Prize.
4. Former U.S. President Jimmy Carter.

Laura Moye of Amnesty International has been quoted as saying that this "gone fishing" delay of the U.S. Supreme Court is good, because it gives Troy Davis and his supporters more time to get publicity for his plight: to let people know that an innocent man is facing execution over in Georgia if nothing happens to stop it.

So, here's my little bit of publicity for Troy Davis. Please, spread the word.

For more information, please visit: Take Action for Troy

 
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