And Now, All Eyes are On the Governor - Will Virginia's Tim Kaine Stop the Execution of John Muhammad, the DC Sniper?

Virginia executes more people in this country than any other state than Texas, so the statistics seem to sway us toward a prediction that Governor Tim Kaine will allow the upcoming execution of John Muhammad, the DC Sniper. 

And Kaine is the only barrier betweeen John Muhammad and death. 

That's because the United States Supreme Court officially declined to hear Mr. Muhammad's appeal yesterday -- and what is unusual about that is they did so long before anyone expected them to do so.  As Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor explained in a joint statement authored by Stevens, under standard operating procedure the high court would have taken this matter under consideration during its November 24th Justices' conference. 

By declining to stay the execution in order to maintain that SOP Justice Stevens wrote, "...we have allowed Virginia to truncate our deliberative process on a matter -- involving a death row inmate -- that demands the most careful attention." 

Importantly, the Justices' statement points out a crucial problem in this case, something of which we all need to be aware:  Virginia scheduled John Muhammad's execution before all of his legal avenues had been exhausted. 

That's right -- Virginia scheduled a man for death before the legal processes had been completed, those legal safeguards that are in place to insure that no legal errors had been made.  To quote the Statement, " '[t]his case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."

Perversity indeed. 

We're watching, Governor Kaine.

US Supreme Court Finds Prosecution Intentionally Violated Due Process in 20 Yr Old Death Penalty Case

Monday, the Supreme Court heard argument in the Bies case (see 04/27/09 post), and the very next day issued its opinion in Cone v. Bell, 555 U.S. ___ (2009), both capital punishment cases where the defendant argued a diminished capacity of some sort. In today's case, there was an intentional hiding of the ball by the State and a definite due process problem.

Gary Cone was a known drug addict who murdered two people.

It is undisputed that Gary Cone was a Vietnam veteran who returned home to Memphis, Tennessee, and failed to cope well with civilian life. One Saturday morning in 1980, Gary Cone robbed a jewelry store - obviously, not very well - and was promptly pursued by local police in what turned into a high speed chase.

Veering into a residential neighborhood, Cone abandoned his car and shot both a police officer and a Good Samaritan who tried to stop him as Cone fled on foot. On the hunt for another getaway car, Cone tried to carjack someone and when they refused to give them the keys, he tried to shoot them, too, only to find he was out of bullets. By this time, helicopters were flying overhead and the scene was escalating to a frantic pace. (You've seen the reality TV shows like COPS, you can visualize these events.)

Somehow that Saturday afternoon, Cone got away. No one could find him. However, early the next morning, Gary Cone was still in the neighborhood - knocking on the door of an elderly couple, Shipley and Cleopatra Todd. He asked to use their phone; Cleo Todd refused and slammed the door on Cone. Cleo called the cops, and still Cone could not be found.

The tragedy occurred later that same day. Cone returned to the Todd home, forced himself into their house, and beat the two senior citizens to death before tearing their house apart. He shaved there, got himself to the Memphis airport, and was busted while robbing a drug store in Pompano Beach, Florida a couple of days later.

Vietnam Vet Cone Asserted an Insanity Defense - He Didn't Contest His Actions

Vietnam vet Gary Cone was arrested, tried, and convicted of the Todds' murder. He never challenged evidence that showed he committed these horrific acts. What he asserted as his defense was his mental illness: Cone's defense team brought forth evidence to show that Cone suffered from chronic amphetamine psychosis, a mental disorder caused by excessive drug abuse.

Experts testified that the drug use began while Cone was serving in Vietnam, where he was using "horrific" quantities of drugs while dealing with the bodies of dead soldiers. The mental illness caused by this drug use created a level of paranoia and a disorder including hallucinations that would keep Cone from understanding or being able to conform to everyday life and the boundaries imposed by Tennessee law.

In sum, the entirety of Cone's defense was mental illness. He was legally insane when the crimes were committed.

Prosecution Hid Reports from Cops on the Scene that Cone was "Wild-Eyed" and looked frenzied, and was acting crazy and weird

Who knows why the prosecution did such a blatantly wrong thing, but they did. They decided NOT to turn over witness statements and police reports from cops on the scene that obviously supported the lunacy of Gary Cone.

And these eyewitness accounts from police on the scene back in 1980 that fateful weekend in Memphis were crucial to the mental insanity arguments made by Gary Cone. They said things like Cone was "acting weird" and looked like he "was drunk or high." A cop reported that Cone was looking around in "a frenzied manner," and walking around in "an agitated manner." (For all the details, check out the Supreme Court opinion.)

These witness statements and police reports were withheld in direct contravention of the due process guarantees provided by the United States Constitution as well as the directives of the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). Brady holds that when a State suppresses evidence favorable to an accused that is material either to the finding of guilt or to the assessment of punishment, the State violates the defendant's right to due process, "irrespective of the good faith or bad faith of the prosecution." Id., at 87.

However, the Cone case is particularly egregious because the prosecution made no mistake here - they intentionally kept this evidence back. Those present at the oral argument in the Cone case report that the Justices were particularly upset about this fact and showed their displeasure in their questioning of the attorneys arguing on behalf of the prosecution. Imagine that - now that is real courtroom drama.

Supreme Court Sends the Case Back - Sentencing Phase Due Process Was Thwarted

The written opinion came down yesterday. Justice John Paul Stevens, writing for the majority, explained that information in the documents that were withheld by Tennessee prosecutors would not have sustained Cone's insanity defense - the police reports and witness statements were not enough to clear him of the crimes - but they were extremely relevant to his sentencing and whether or not the death penalty should be imposed:

"[b]ecause the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted."
Now, a federal judge will decide whether Gary Cone should remain on Death Row.

Here's another example of why criminal defense attorneys are committed to their work.

And for those of you wondering why people like me do what we do, well here is one prime example.

Due process is the only thing that protects the individual in this society when those in authority don't do the right thing. And it's through criminal defense attorneys at the trial and appellate levels that bring these cases through the review process, so that justice can be served and the backdoor maneuvers of overzealous prosecutors can be brought into the light of day.

News sources:

Reuters
All Headline News
The Tennessean

U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) - but does 32 years in a Death Row cell amount to cruel and unusual punishment?

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn't mean we don't have a lot to consider from the opinion that did spring forth. Let's ponder the following:

Justice John Paul Stevens' Statement

First, I've read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, "[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer's Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson's spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson's accomplice - who might have been more culpable than Williamson in the underlying crime - was not sentenced to death. Interesting point.

Justice Clarence Thomas' Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court's denial of certiorari. In it, Thomas opined ""[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel, ..." and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn't This Cruel - If Not Unusual? Oh, and What About the Budget?

States across the country are arguing - and deciding, case in point being New Mexico (see last Monday's post), that capital punishment is too darn expensive given the state of the economy.

And, here comes a case where the U.S. Supreme Court has the opportunity to address this situation - is it cruel to keep a man, isolated, in a 6 foot by 9 foot cell, for over 30 years after he's had constitutional guarantees of a speedy trial that apparently aren't going to grant him anything close to a speedy appellate process?

Wouldn't providing for a speedy appellate process in death penalty cases not only help prisoners on Death Row, but help society as a whole by streamlining the costs of capital punishment?

This practicality was the jumping-off place for Justice Stevens in his Williamson Statement, where he pointed to his past work in Baze v. Rees, 533 U.S. __ (2008), slip op. at 12, quoting his prior words there, " ... time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."

 
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