Once again, we welcome James Clark, Death Penalty Field Organizer for the ACLU of Southern California as we repost his recent article dealing with the financial realties of capital punishment upon a state’s budget. 

In the past, we’ve pointed to the obvious money motive for California – and other states – to end the death penalty on merely a bottom line, dollars and cents, approach.  (See, e.g., California Could Save $1 Billion By Abolishing Death Penalty.  How Bad Will It Get B4 They Do?)

However, today Mr. Clark provides us with the perspective of a Californian, speaking to his neighbors and friends who are living in the beautiful state we all know is facing financial ruin. 

Here is James Clark’s article (with his approval, of course).  It’s worth your time to read it:

How Would You Spend $64 Million?
by: ACLU
Fri Aug 13, 2010 at 11:32:01 AM PDT

By James Clark, Death Penalty Field Organizer, ACLU of Southern California

Remember that episode of The Simpsons where Homer is so broke he breaks into his daughter’s piggy bank, only to find it full of IOUs from himself?

On Wednesday, that scene was reenacted in Sacramento, with Gov. Schwarzenegger playing the role of Homer. The governor announced that he would be "borrowing" $64 million from the General Fund in order to move forward with one of his pet projects, the construction of a new death row facility at San Quentin. And $64 million is just the tip of the iceberg. Altogether, the new facility is expected to total upwards of $400 million. That’s half a million dollars per prison cell — roughly the cost of a nice house in California.

Of course, the General Fund is virtually broke already, so our governor is borrowing against nonexistent budget. And didn’t Gov. Schwarzenegger threaten that he wouldn’t sign a budget at all? Every government agency in the state is in fiscal emergency, our social safety net is in tatters, and the state is weeks away from paying state employees with IOUs.

Which is why building a new death row is exactly what we don’t need need right now.

California has by far the largest and most costly death row in the country, with over 700 inmates, nearly double the closest runner-up. All of these inmates live in a prison that predates the Civil

Continue Reading California Death Penalty: Guest Blogger Asks How Would You Spend $64 Million?

Earlier, we posted an organized list of the mitigating factors recognized by the various states still imposing the death penalty, and that effort has received a good response. It’s been helpful. 

Accordingly, In tandem with that state list, we provide an itemized list (hopefully user-friendly) of the corresponding mitigating factors – as well as aggravating factors – that are recognized in federal death penalty cases (non-military).

Federal Death Penalty Statutes – Overview

Federal law provides for the sentence of death when a wide variety of crimes have been committed.  Under federal law, you can be executed without having yourself killing anyone.  For a complete list of the various federal statutes allowing for the death penalty, please refer to the excellent resource list provided by the Death Penalty Information Center.  There’s over 40 listed there, at last count. 

In federal death penalty cases, the defense must have two attorneys, and one of them must be death-penalty qualified.  After guilt has been adjudicated, there is a separate trial to determine first if capital punishment is legally an option; thereafter, evidence is presented on the aggravating factors and the mitigators. 

Mitigating circumstances need only be proven by a preponderance of the evidence; however, the prosecution must establish its aggravating circumstances beyond a reasonable doubt.  The federal death penalty jury cannot sentence a defendant to death unless the vote is unanimous. 

Mitigating Factors In Federal Death Penalty Cases

(1) Impaired capacity.

The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

(2) Duress.

The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

(3) Minor participation.

The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.

(4) Equally culpable defendants.

Another defendant or defendants, equally culpable in the crime, will not be punished by death.

(5) No prior criminal record.

The defendant did not have a significant prior history of other criminal conduct.

(6) Disturbance.

The defendant committed the offense under severe mental or emotional disturbance.

(7) Victim’s consent.

The victim consented to the criminal conduct that resulted in the victim’s death.

(8) Other factors.

Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

Aggravating Factors in Federal Death Penalty Cases

Federal law defines different aggravating factors depending upon the crime involved: treason, for example, has a different set of aggravating factors than homicide or a drug conviction.  The aggravating factors in federal capital punishment cases are as follows:

Continue Reading Terry Lenamon’s List of Federal Death Penalty Aggravating Factors and Mitigating Circumstances

News coverage of Timothy O’Reilly’s murder trial this week is providing an example of what occurs during the penalty phase of a death penalty case, specifically one in the federal system, as the Detroit federal courtroom hears testimony from both prosecution and defense in the Timothy O’Reilly case. 

A jury has just returned a guilty verdict in the matter, finding that Timothy O’Reilly committed the crime of murdering Norman Stephens, 30, during an armed robbery of the Dearborn Federal Credit Union in Dearborn. Michigan.  This week, the penalty phase began.

Aggravating Factors – Prosecution’s Argument to the Jury that O’Reilly Should Get Death Penalty

It’s reported that many have cried as the victim’s wife, daughter, niece and nephews testified about the slain armored car guard.  The victim’s family spoke today about the loss they have experienced in the eight years since their loved one died.  The prosecution’s remaining aggravated evidence is from tape-recorded jailhouse conversations between O’Reilly, his family, and other prisoners. 

Mitigators – Defense’s Evidence to the Jurors Against O’Reilly Receiving Capital Punishment

Tomorrow, O’Reilly’s defense team is expected to give mitigating evidence to the jury that will include evidence on abnormalities in Mr. O’Reilly’s brain function as well as the troubled childhood that he suffered.  They will ask the jury to forego the penalty of death, and opt for a life sentence in the case.

Mitigation evidence should take the rest of this week, with jurors making their decision as soon as next week, after formal deliberations begin.  And, these Michigan men and women will need to have some time to consider everything they’ve heard as they decide whether or not they will be merciful.  The federal death penalty decision must be a unanimous one.
 

What is the Penalty Phase in a Trial?

As we’ve discussed here before, during the trial phase of any capital punishment case it is guilt that is at issue.  Judgment is the focus.  If the defendant is adjudged guilty, as O"Reilly has been found, then mercy takes the place of judgment for the decision-maker.

First, the prosecution provides evidence of factors it believes supports its request for death as the appropriate punishment for this man.  Afterwards, the defense produces evidence of mitigating circumstances that argue against the ultimate price for the adjudicated crime. 

Michigan?  Yes, The O’Reilly Case is a Death Penalty Case Out of Michigan.

We’ve posted about this case earlier, since it is very unusual to be discussing a capital punishment case coming out of Michigan.  The State of Michigan removed the death penalty from its books over a hundred years ago (1846). 

However, Tim O’Reilly was charged and is being tried under federal law, in federal court — and of course, the death penalty is still an option under federal law.  Occasionally, the federal death penalty will come into play: recent examples include the Oklahoma trial of Timothy McVeigh and the recent Florida trial in the Turnpike killings. 

And the truth remains:  had this man been charged under state law instead of federal, he would have been tried in a state courtroom close to the district court in which his fate resides, with jurors theoretically chosen out of the same population as sets in the federal trial today.  Death?  If he were in the Michigan courthouse, of course, it wouldn’t be on the table. 

The dichotomy speaks for itself, really, and it’s a lot to ponder.  First, in the national news this week, we have a prominent New York law firm, Sullivan & Cromwell, whose errors may cost Alabama Death Row’s Cory Maples his life.  On the other end of the spectrum, we learn yesterday that Iran’s Sakineh Mohammedi Ashtiani’s death penalty attorney who had been missing for almost a week, Mohammed Mostafaei, is alive and seeking asylum in Turkey after, apparently, advocating too well for his adultery-charged client who faces execution by stoning. 

The Quality of Representation Received by Alabama Death Row’s Cory Maples

Earlier this week, we wrote on the Cory Maples situation.  In sum, two New York associates from swanky Sullivan & Cromwell walked into an Alabama trial court, post-conviction (pro hac vices granted), and filed a motion under Rule 32 of the Alabama Rules of Criminal Procedure.  Thereafter, the two associates left the law firm, and when the court clerk sent out notices that the Rule 32 motion had been denied (tick tick tick of the appellate clock), Sullivan & Cromwell returned the notices: "return to sender." 

Of importance, the Rule 32 Motion was denied in part because of (1) failure to state a claim and (2) asserting arguments that were to be made in direct appeal. Also of importance, their signature blocks never gave the firm’s name, just the individual attorneys — and yet, the law firm kept the representation after the two lawyers left its employ, learning of the missed appellate deadlines only after their client’s mother called to check on status.  

This very serious situation has been made the subject of this week’s Brief of the Week at the National Law Journal.   

The Quality of Representation Received by Iran’s Sakineh Mohammedi Ashtiani

After writing about the possibly imminent stoning execution of Sakineh Mohammedi Ashtiani, a woman tried twice for adultery and sentenced – without evidence – to death by stoning under Iranian law, it was even more shocking to learn that fellow blogger and Death Penalty defense attorney for Ashtiani, Mohammed Mostafaei, had gone missing after leaving an interrogation by prison official. 

 

Continue Reading Death Penalty Defense: Cory Maples’ Sullivan & Cromwell Representation vs Sakineh Ashtiani’s Mohammed Mostafaei

New York Times columnist Adam Liptak once again does us all a great service by bringing the national media spotlight to bear upon the crisis facing Cory R. Maples, who sets today on Alabama’s Death Row. 

Sullivan & Cromwell Missed the Deadline to Appeal

Maples’ case currently awaits the determination of the United States Supreme Court.  The High Court must decide the fate of Cory Maples, who relied upon the well-known law firm Sullivan & Cromwell to represent his interests — only to have the deadline pass for him to file an appeal. 

That’s right:  elite Sullivan & Cromwell representation and a basic, basic deadline was blown. 

What the Heck Happened?

As Liptak explains, the Big Firm did not place its firm name within the signature block of the two associates that were on the record as being Maples’ defense counsel.  Nevermind the question of whether or not these two were death qualified, had any past criminal defense experience, etc.  We don’t get there (yet). 

Apparently, Sullivan & Cromwell felt it would be bad public relations to represent a man facing death at the hands of the State of Alabama so shame (and that’s the core issue here, let’s not beat around the bush) kept the firm name off the mailing list.  Which wasn’t such a big deal until the two lawyers left the firm.

Did Sullivan & Cromwell forward the mail addressed to the two associates to their new mailing address?  No.  They sent the notices back to the court.  That’s right: the court.

Return to Sender

Sullivan & Cromwell returned the court’s correspondence back to the court itself.  As the New York Times reports, there were TWO envelopes sent back to the court clerk. 

One was marked “Return to Sender — Left Firm” handwritten across the front and just to make sure, it was also stamped “Return to Sender — Attempted Not Known.” The second piece of court correspondence was stamped “Return to Sender — Attempted Unknown,” without any added handwritten message.

Curious by its absence, any reference to the forwarding addresses of the two lawyers who had left the firm.  Surely the law firm knew them.  Surely the State Bar website could provide them.  Apparently, the Sullivan & Cromwell perspective was that the court could figure it out — it wasn’t Sullivan & Cromwell’s problem.

Except it was.  And it is.  Because the representation of Cory Maples didn’t leave with the two associates — it was merely reassigned to two other firm lawyers. Who knew zip about what was happening until Cory’s mother called to check on the status of the appeal.

What Did Sullivan & Cromwell Do Next?

Swanky Sullivan & Cromwell went before the Atlanta federal appeals court on behalf of Cory Maples.  And lost.   Now, the firm has seen fit to bring in a former United States solicitor general, Gregory G. Garre, to argue on behalf of Mr. Maples before the United States Supreme Court.  And, indirectly of course, he’s arguing for Sullivan & Cromwell at this point. 

His big argument to the High Court on why they should grant his petition?  That Cory Maples should not be responsible for his lawyer’s mistake. 

However, the federal precedent is filled with clients that do get left holding the bag for their lawyer’s mistakes – limitations are passed, deadlines are missed, and the law usually says that the client’s remedy is to sue the law firm for malpractice.  Except that Cory Maples can’t get his life back from Sullivan & Cromwell.  Sullivan & Cromwell’s mail room glitch might well cost Mr. Maples his life. 

Another Lesson in the Crisis of Indigent Defense of Death Penalty Defendants

Why was an elite New York law firm appointed to represent an indigent criminal defendant?  The New York Times reports that the trial lawyers actually told the jury during the penalty phase that they weren’t experienced here, and warned the jurors they “may appear to be stumbling around in the dark.” Result?  The jury came back in favor of the death penalty, with a vote of 10 to 2.

It’s all about money.  Alabama doesn’t budget for indigent appellate defense for those on death row.  Alabama lets elite firms take these cases on pro bono, and they don’t even have to be within the state lines: elite firms like Sullivan & Cromwell.   

The reality is that the error that may cost Cory Maples his life isn’t just the fault of Sullivan & Cromwell.  It’s the responsibility of all who fail to acknowledge and provide for adequate funding for qualified, experienced indigent defense representation in capital punishment cases. 

Sakineh Mohammadi Ashtiani is the woman we wrote about last week — she faces the horrible, horrible death sentence of stoning in Iran.  Her crime?  Adultery.  Evidence?  None.  Trials? Two (no double jeopardy protection there).

Was the Stoning Carried Out?

There have been no news reports since our post to confirm that Sakineh Mohammadi Ashtiani has indeed been executed.  Last we knew, the Mullahs had reported that they were not going to respect any stays offered by other local authorities, and the stoning was said to occur within a 24 hour time frame. 

And by stoning, again we mean she will be buried in sand up to her chest and then stones – not too big and not too small – will be thrown at her until she dies.  (They don’t want her to die too quickly.) 

Where is Her Lawyer?  He’s Gone Missing.

We don’t know if Sakineh Mohammadi Ashtiani is alive or dead right now.  And, according to Amnesty International, we also don’t know where her defense lawyer is. He’s gone missing.

Mohammad Mostafaei (shown above) was reported to have been interrogated at Evin prison in Tehran, Iran, on Saturday.  Amnesty International believes he was released, asked to return, and never seen again. 

Mostafaei’s Wife and Brother-in-Law Held Without a Lawyer

Meanwhile, the defense lawyer’s wife, Fereshteh Halimi, and his brother-in-law, Farhad Halimi, have been taken by authorities and held without legal counsel. 

Mostafaei Is Another Death Penalty Defense Lawyer Who Blogs

Interestingly, Mr. Mostafaei blogs.  That’s right.  He blogs in Iran.  And, apparently he posted something on his blog last Saturday after he left the prison interrogation, as well as updating his Facebook account.  On Facebook, he predicted he would be arrested.

Check out his blog (use Google Translate): looks like it’s been shut down. 

Our prayers are with Mr. Mostafaei and his family — and we are honored to count him as one of our brethren.  Please help spread the word of this continuing injustice.  To learn more about what you can do, visit theActivism Center at Amnesty International’s website. 

 

Recently, I received a very nice letter from a student in Great Britain who was studying capital punishment – specifically, the American Death Penalty.  She asked my take on things, generally speaking, and I was honored by the query and proud to be able to reply.  Having taken some of the language of my response from this blog, I thought it only fitting to share with its readers what I sent to Pavan last week.

Dear Pavan,

Thank you so much for writing me and asking my thoughts on the death penalty, as an American death penalty criminal defense attorney. I’m honored to be asked, and I hope that the following is helpful to you:

I’ve been practicing criminal law for a long time, and still I get asked on a weekly basis, why DO I defend what some call "the worst of the worst"? Just why is it that I defend those people that have been described on more than one occasion (and by more than one prosecutor) as the worst of the worst?

First, a word about what I do. I’m a private practice criminal defense attorney who focuses upon death penalty cases. In Florida, where I live and do most of my work, death penalty cases have two lawyers, known as first chair and second chair.

As first chair in a death penalty case, my job is concerned with the guilt finding of the defendant – the focus is judgment. As second chair, my job is to convince the jury to spare the life of the person if they are convicted – the focus is mercy. Here, arguing for mercy is legally known as "mitigation," a specialized area. Within that area, I have further specialized in mental health aspects of mitigation.

I represent young and old, the unknown and the infamous. Most recently, I was given extensive media coverage as the initial death-penalty qualified attorney in the Casey Anthony case. (I withdrew from the representation a long while back.)

"How can you represent those people?"

There are all the usual stock answers. "I am defending the Constitution." "The death penalty is not a cost effective solution." "There is no deterrent value." "As for retribution, is a life in a cage worse than death?" "The system is not perfect, and innocent people have been sentenced to death." "Death row is overwhelmingly populated by the poor and disadvantaged."

And all of these answers are true, but they don’t tell you the whole story.

Fundamentally, I do this because I want to understand. Why did this happen? How did this person arrive at my figurative doorstep, accused of a horrendous crime? What are the factors, the background, the events that led this person here?

Every person has a story. There is always some underlying common humanity in even those convicted of the most brutal crimes. It is my job to bring these mitigating factors to the jury, to shed light on the darkest heart and most disturbed mind.

To help us all to understand WHY. 

Continue Reading Dear Pavan — My Letter to a British Student about the American Death Penalty

Last year, we had a series of in-depth articles posted over several weeks discussing capital punishment in China, and the horrific reality of the China Death Vans.  Please take the time to read thru this information — information that we found was simply not covered to any great extent in the mainstream media.

China Death Vans and the Harvesting of Human Organs for the Global Transplant Black Market

Fueling the China death penalty is the demand for human transplant organs around the world.  Mobile vans literally roam the Chinese countryside, efficiently harvesting these organs from men and women grabbed off rural roadways and in village squares.  (This is documented, read our series for details.)

This week, China Announces Limiting the Crimes Carrying Death Penalty

Beijing’s China Daily now reports that China will be cutting back on the number of death penalty crimes  — and may abolish capital punishment for anyone already convicted who is over 70 years old.  A draft of the new legislation is reported to be submitted sometime in August to China’s Parliament. 

Details on what crimes are being taken off the death penalty list were not found in the news release; however, it is known that 68 different crimes carry the death penalty in China right now — and 44 of them are for non-violent acts. 

Will this really happen? What About the Human Transplant Organ Market?

Right now, the legislation is still in draft form, with no clear language and no clear date on when it will be voted upon by the National People’s Congress of China. 

Based upon the information we’ve gathered and shared, perhaps the real question is:  how will the black market demand for human transplant organs be met if the China Death Vans are no long a major supplier? 

Let us watch and pray.

World news reports regarding attitudes toward the death penalty in other countries is downright frightening.  As much as we fight against injustice in the United States, the news reports coming out of Pakistan, Iran, and Singapore today only serve to reiterate how the American system of justice is much more merciful and compassionate than so many other jurisdictions on this planet. 

Facebook Founders charged with Death Penalty Crimes in Pakistan for "Draw Muhammad Day"

At first, this seems to be something from Will Ferrell’s Funny or Die series, or maybe another Ashton Punk, or even some twisted publicity attempt for that new Facebook movie.  No.  The ugly truth is that a Pakistani High Court judge has indeed brought in the police after an a Pakistani attorney named Muhammad Azhar Siddique filed documentation with the court requesting a "First Information Report (FIR)," legalese for asking that that a criminal investigation be ordered.

In his application, Mr. Siddique allegedly asserts that Facebook principals have violated Section 295-C of the Pakistan Penal Code, which states:

"Use of derogatory remark etc, in respect of the Holy Prophet, whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (Peace Be Upon Him) shall be punished with death, or imprisonment for life, and shall also be liable for fine."

What’s the brouhaha?  Back in May, Facebook sponsored "Everybody Draw Muhammad Day," when a  27-year-old Canadian woman created a Facebook page joining a Seattle cartoonist in an online protest of cable TV’s Comedy Central’s decision to censor an episode of "South Park," where the Prophet Muhammad was drawn wearing a bear costume. 

After the Royal Canadian Mounted Police visited the Canadian Facebook page administrator’s home, telling her of possible reprisals and death threats against her, she took their advice and removed the page.  The FBI, likewise, visited the Seattle cartoonist, giving similar advice to her — and she likewise took down her online protest and has taken herself out of the public eye.  The names of both the Seattle cartoonist and the Canadian Facebook page administrator appear on hit lists. 

But this must not be enough, to put names on assassination lists. 

There are reports that Pakistan’s Deputy Attorney General has begun an investigation into Facebook Founders Mark Zuckerberg, Chris Hughes, and Dustin Moskovitz, as well as the German woman who initiated the "Draw Muhammad" contest under a pseudonym.  Attorney Sidiqque has told media that he expects the Pakistani officials to enlist the aid of Interpol in coordinating the arrest of these four individuals.  Additionally, Pakistan’s United Nations representative has purportedly asked to escalate the issue in the UN General Assembly. 
 

Singapore Writer Arrest and Iran Stoning after the jump….  

Continue Reading World View of the Death Penalty: Pakistan Death Penalty Charge Against Facebook founders, Writer Alan Shadrake Charged In Singapore – Not Free to Leave, Iran Stoning To Occur Today Without Evidence

Yesterday, Sharon Keller learned the discipline that she would be receiving from the Texas Judicial Commission after a review of her actions as Chief Justice of Texas’ highest criminal court on the day that Michael Richard was executed by lethal injection.(Read the ruling in its entirety here.)

It’s a story we’ve been following for a long while now, waiting to see what would happen to Justice Keller after a shocking series of events that Execution Day afternoon. 

Almost three years have past since Sharon Keller’s infamous response, "the Clerk’s office closes at 5," and around a year since a fact-finding trial judge determined that nothing should happen to Justice Keller – that the mere "public humiliation she has surely suffered" was more than sufficient sanctioning of her conduct.

What Justice Sharon Keller Did on Michael Richard’s Execution Day 

Justice Sharon Keller, as you will recall (the day’s events are summarized in the Commission’s Ruling), went home early on the day that (1) the United States Supreme Court announced it was going to be reviewing the constitutionality of lethal injection method of killing in Baez; and (2) Michael Richard was scheduled to die, by lethal injection. 

Justice Keller went home to meet a repairman.

Attorneys for Richard had literally hours to file the paperwork with the Texas court to stop the execution, but it’s safe to assume – in fact, now there’s been testimony – that the Texas high court was expecting the filing.  There was already an execution day procedure set in place at the court, and another Justice was waiting to get the paperwork. 

No one expected the Texas court to substantively change the state opinion on Richard’s conviction and pending execution.  All that was needed was the Texas court’s denial, so that the defense attorneys could substantiate to the U.S. Supreme Court that state remedies had been exhausted.  It was almost a rubber stamp of the documents, once they actually got filed with the Texas court. 

As detailed in the 19-page ruling issued by the Texas Commission, instead of that execution day procedure being followed, the clerk called Justice Keller at home when the attorneys had technological problems and called to say they’d need to file shortly after 5 o’clock (not unheard of, this happens all over the country).  Instead of following the internal court execution day procedure — i.e., telling the clerk to check with the Justice on stand-by — Justice Keller issued her Red Queen directive that we’ve all heard about for so long.

Sharon Keller Keeps Her Job, Gets a Hand Slap

And for this, she gets a hand slap.  Technically, she’s received a "PUBLIC WARNING" from the Commission.  Keller could have lost her job, been removed from the bench, but she wasn’t. 

Within the ruling, which deserves reading in its entirety, Keller is found to have failed to give "…Richard access to open courts or the right to be heard according to law," which seems serious enough.  But nothing follows.  Almost nothing.   

Tactful language skirts around the reality that the man died. 

The bottom line here is that in hindsight, we know that lethal injection would be found constitutional by the U.S. Supreme Court and that Michael Richard’s execution probably would have gone forward (this is Texas, remember) within the year to 18 months following September 25, 2007.  Or maybe not.  Maybe Michael Richard would be alive today. 

We absolutely know that Michael Richard and his loved ones were denied those days and months between September 2007 and whenever he might have been ultimately executed because of the cavalier actions of Chief Justice Sharon Keller. 

The Imbalance Continues

Today, Sharon Keller has kept her job and experienced some social discomfort.  Or as the fact-finder described it, some "public humiliation." 

How do we balance that against the time period of living that was stolen from Michael Richard?  How can we?