Letters: Release repeal bill from Judiciary Committee, and State has no right to execute while bias exists

Thank you to Connie Jones and Joanne Cabry for raising their voices asking for fair and appropriate behavior on the part of our legislators and courts:

On Fri, Apr 25, 2014, Connie Jones’ letter was published in the Coastal Point:

Editor:
It’s time to let the House of Representatives vote on repealing the death penalty.
Senate Bill 19 calls for the repeal of the death penalty. After passing the Senate, the bill was placed in the House Judiciary Committee in March 2013, and there it remains because there are not sufficient committee members willing to vote to release it. The vote was 6 to 5, according to one representative.
I believe committee members who voted against releasing SB 19 should explain why they are blocking their fellow representatives from voting on this very important bill. Perhaps they could also explain why the criteria for releasing a bill are different in the House and the Senate? In March 2013, the Senate Executive Committee determined it was ready and appropriate to release the bill to the full Senate for a vote. Yet the House committee has had the bill tabled for over a year.
A representative has the right to vote against repeal of the death penalty, but the place to cast that vote is on the House floor, not in a committee hearing.
Connie Jones
Lewes

 

On Fri, Apr 25, 2014 at 10:23 PM, Joanne Cabry <jcabry@gmail.com> wrote:
Delaware State News 04/25/2014, Page A06

Justice for all — who can afford it

Two recent news stories have strengthened my conviction that we must repeal capital punishment in Delaware.

In January, prosecutors opened a sealed envelope from the Office of the Chief Medical Examiner in Wilmington during a drug-prosecution case in Kent County and discovered Oxycontin pills had been replaced with blood-pressure medicine. [“Police probe drug evidence tampering,” article, Feb. 22, and subsequent articles.] Since then, over 60 cases of tainted evidence have been discovered, and there are thousands of drug samples from 2010 to the present yet to be tested.

I have heard over and over again that we don’t execute innocent people in Delaware. How can anyone say that with certainty – especially in light of the ongoing investigation of massive contamination of evidence in the Medical Examiner’s office? Judges and prosecutors are humans, subject to the same human frailties we all possess. We all make mistakes.

I have also heard the argument that we have a legal system that protects the defendant. Sadly, I think the reality is we have a legal system that protects the defendants who can afford to pay for their own defense.

In June 2008, a state prosecutor offered Robert Richards IV a plea to a single count of fourth- degree rape of his 3-year- old daughter, which carries no mandatory time. Richards accepted, admitting in court that he abused his child. Superior Court Judge Jan Jurden, at the recommendation of the prosecution, suspended an eight-year prison sentence and sentenced Richards to a treatment program for sex offenders. [“Legal brethren back judge in du Pont heir sentencing,” article, April 9] Richards’ attorney commented, “It was more than reasonable, an enlightened plea offer.” As a multimillionaire, Richards could afford to hire a private attorney to defend him. Even though I disagree with the decision of Judge Jan Jurden, who has been described as “an outstanding jurist” by Delaware’s attorney general and a number of lawyers and their professional organizations, I acknowledge Robert Richards’ right to use his financial resources to engage a lawyer or legal team to get him the best deal possible.

But the vast majority of capital defendants don’t have Robert Richards’ money. An article in the National Law Journal concluded that capital trials are “more like a random flip of the coin than a delicate balancing of scales,” because the defense attorney is “too often … ill-trained, unprepared [and] grossly underpaid.”

Justice Ruth Bader Ginsburg has observed that “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve- of- execution stay applications in which the defendant was well represented at trial.”

Study after study has shown that whether or not a defendant will be sentenced to death depends more on the quality of his legal team than any other factor.

Until we can change the sad reality that a person’s wealth determines the quality of his or her defense, and until we can say humans never make mistakes, the state has no right to execute a human being.

Joanne Cabry
Chair, Progressive Democrats of Sussex County Rehoboth Beach

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DCODP monthly meeting Monday 4/28/14 at 5:30pm

Senate Bill 19 can still pass this year! Join in the effort at our monthly DCODP meeting, Monday 4/28/14 at 5:30 pm. LOCATION: Wilmington Friends Meeting House, 1st floor Social Room, 401 N. West St, Wilmington, DE 19801. Park in the parking lot on the 5th Street side or on the street. Ring the doorbell at the West Street entrance. Call 302-379-0488 for info. All are welcome!

More evidence that Delaware’s criminal justice system is not infallible

Certificate: Sussex prison death a homicide 4/21/14  “The February death of a man being held at the Sussex Correctional Institution has been ruled a homicide due to multiple blunt force injuries, according to a death certificate provided an attorney representing the man’s family.”

New York Times publishes debate on death penalty

Six experts debate the death penalty in today’s issue of the New York Times. The fact that the death penalty has reached this level of civil, open, public conversation gives me great hope for the future.

What It Means If the Death Penalty is Dying, NYT, 4/7/14

  • “Rare and Decreasing” by Richard C. Dieter, Death Penalty Information Center
  • “Punishment Needs to Be Punishment” by Robert Blecker, Author, “The Death of Punishment”
  • “No Justice for Victims of Color” by Khalilah L. Brown-Dean, Political Scientist
  • “Of Course It’s Cruel and Unusual” by Kirk Noble Bloodsworth, Witness to Innocence
  • “Claims of Racial Disparity Are Misleading” by John McAdams, Political Scientist
  • “The Most ‘Unusual’ It’s Ever Been” by Paul Butler, Law Professor and Former Prosecutor

Comment on 4/6/14 Death Row Stories episode by Richard Kiger

Tonight’s episode of the series questioning how some people ended up on death row was about a man named John Thompson who was convicted of murder in 1985. The treatment of his connection to the murder of a young man was a little on the thin side. That’s not the point. The problem examined, once again, was government misconduct. In this case, Thompson was convicted of two crimes, one involving a car-jacking with people in the car and the other a murder. It was important to the prosecution case to go to trial first on the car-jacking and get a conviction because that conviction could then be used against Thompson in the murder trial, to show that he had a record. The conviction effectively prevented Thompson from taking the witness stand in his own behalf because the conviction could be used against him. As I remember the description of Thompson, he did not have a record otherwise.

There was evidence collected at the scene of the car-jacking indicating that the person responsible was injured and his blood ended up on the clothing of the victims. The clothing disappeared and the blood test performed on it was not revealed to the defense. When this aspect of the case was investigated years later, it turned out that the presumed criminal had a different blood type from Thompson. If the police theory is correct that the blood on the victim’s clothing was that of the car jacker, this would exonerate Thompson. The government’s explanation of its treatment of evidence is not credible, leaving one to infer that it was not in the prosecution’s interest to tell the defense it had good reason to believe Thompson was innocent. Of course, this is not what was said, but that is, I suggest, a reasonable interpretation of the evidence set forth in the show. There was also a question of the reliability of eyewitness testimony.

The murder case was built upon the car jacking case, so its foundation was shaky at best. It turns out that the star witness was paid $10,000 to testify against Thompson. There was a reduced sentence deal in this trial also. None of this was revealed until Thompson had been in jail for many years. Eventually, the convictions were vacated and after some indecision on the part of the prosecution, Thompson had a new trial on the murder charge and was not convicted. Because he was, for all intents and purposes framed by the government, as presented in this show, he sued the authorities involved and received a judgement of $14,000,000. This was appealed and reversed in a decision by the United States Supreme Court. The 5-4 decision was written by Justice Thomas.

What I’ve said up to now raises many questions. Here are a few that jump out.

Who has $10,000 to buy a witness’s testimony? We’re all familiar with plea deals, but who has that kind of money to give someone? That is, where did it come from? If the government itself, where does the paper trail lead and why were we not told that someone has been prosecuted? I assume we were not told about a prosecution because no one was prosecuted. Surely, this is not a legitimate governmental use of public money, so what about a prosecution of any government officials involved in this transfer of funds? If it was private money, wouldn’t that qualify as corruption, obstruction of justice, if you will? Suborning perjury? Maybe misprision of a felony (perjury)? Again, where’s the prosecution? Surely, even in Louisiana this must be wrong, mustn’t it?

Also, supposedly one of the goals of any justice system is to punish those who commit crimes, especially violent crimes with victims. Does anyone care that an innocent person was convicted and lost many years of his life in a jail cell instead of being with his family, and the person who committed the crime was free to commit more crimes if he chose? The law enforcement personnel in these shows never seem to care about these things, and I don’t have the impression (I may be wrong) that the show is trying to paint them in a bad light in these instances.

Next, why should we respect the rulings of the United States Supreme Court? That’s not a rhetorical question. Brady v. Maryland was decided in 1963. The murder case under discussion was tried in1985. That’s over two decades when lawyers are supposed to know that exculpatory or potentially exculpatory evidence has to be revealed to the defense. Put aside for the moment the payment of money to suborn perjury and just look at the Brady material. Maybe there is an important decision to be made at times as to whether evidence is exculpatory. I don’t think that was the case here or in some of the other shows we have seen in this series. No one gives a damn about complying with the ruling in Brady, apparently, and it seems as though we hear next to nothing about this attitude. Why should ordinary members of the public respect the rulings of the United States Supreme Court when it is obvious that there are law enforcement personnel, some of them lawyers, who must not respect the rulings because they do not obey them.

There is a part of this evening’s show that strikes me as poorly handled or perhaps just disingenuous. Prosecutors were asked about the guidance they received in the office for situations such as those involving Brady material. They said that there was no intention to share anything more than could not be avoided and handbooks were incorrect in setting forth standards. Well, so what? Handbooks are there for the use of those who need guidance in such matters. We are talking about lawyers, I assume members of the Bar in Louisiana, who ought to know what the Supreme Court has said about the conduct of the cases they handle. It is pathetic to hear Harry Connick, Sr. say that he hasn’t opened a law book since law school. That by itself probably tells you everything you need to know about the justice system in New Orleans if not all of Louisiana. What about the younger prosecutors who came into the office as the years passed? Should we really believe they knew nothing of something covered in basic criminal procedure courses in law school? For that matter, if I remember correctly, Connick was the DA from about 1972 to 2003, so it is not clear from this information when he was graduated from law school (or where he went to school, not that the school should make a difference as long as it was an ABA accredited school), but is it too much to ask that he be familiar with a critical element of law enforcement that had been the law of the land for about 10 years when he became DA? In other words, it sounds like he was never worthy of the job from the time he took office until he left. That statement is based on his words, and is not merely a personal opinion on my part.

A well-known retired Superior Court judge in Delaware told the lawyers in a case he was hearing before his retirement that he kept up with changes in the law by reading Readers Digest. I was told that by one of the lawyers in the pretrial conference who heard him say it. I do not practice criminal law, but I have been a faithful watcher of Law & Order for many years.

You see, there really are ways to find out about developments in the law that took place in the ancient days of 1963.

Aside from an innocent person or someone wrongfully convicted going free occasionally, is there ever any reason to pay attention to Brady? For most of us, that is a rhetorical question and the answer is that we have a personal code of ethics that demands we try to do our jobs properly. By now, we all know of too many instances when Brady material is not made available to the defense, and so we must conclude that there are prosecutors who do not intend to obey the law. How can we respect the law when we know there are people entrusted with its enforcement who do not obey the law? To be vulgar about it, is there ever an episode of the new Hawaii 50 where the perp should not go free because of egregious police misconduct in handling the case?

Something I wonder about a lot is the Wong Sun doctrine. This is sometimes referred to on tv shows as the “fruit of the poisoned tree” doctrine. Briefly, if you break the law to gain evidence and this results in finding evidence of criminal conduct on the part of the person being investigated, it cannot be used against that person because of the way the evidence was obtained. It makes sense and it seems right, but does anyone really abide by it?

Step back from these situations and look at the big picture. There are a lot, a very large number, of police officers and prosecutors who are dedicated to doing their jobs lawfully and well, and they deserve the respect and gratitude of all citizens. The people in law enforcement who do not obey the law stand out from the others because their behavior is so unacceptable and offensive. I really do not believe they are in the majority. The problem is, how are we to know who is a bad apple? Eventually, it will come out, but knowing that it may take a long time, perhaps years or even decades, how can we afford to have a death penalty that may lead to the executions of innocent people? It’s bad enough that an innocent person may spend years in jail, but there can be release and perhaps even a monetary reward that will never make amends. You can’t say that with the death penalty.

The 5-4 decision to prevent Thompson from receiving compensation for his years in jail may be rightly decided. I haven’t had a chance to read it and so I don’t have an opinion. As presented in this show, it is unsupportable. My own bias may come into play here. I’ve never had a good opinion of the author. As you may recall, when Justice O’Connor was still on the Court he took a position that there was nothing wrong with prison guards beating up prisoners. Justice O’Connor and others wrote that this behavior could be described as “cruel and unusual punishment.” There’s no way we can get more information out of one of the people responsible for putting him on the Court, the one who advocated the single bullet theory unless he left diaries or letters that have yet to see the light of day. There is, of course, someone still alive who had a role in this appointment, but how can you know what to believe when he talks about his career? That’s rhetorical, too.

Perhaps the big lesson we can take from the cases aired on this show is that government misconduct that can lead to the imprisonment or even deaths of persons charged with crimes they did not commit is not restricted to one geographic area. It does, however, appear to happen a lot to those unable to afford a good defense. Thompson, tonight, did not even know his own blood type, which strikes me as evidence of socioeconomic disadvantage during most or all of his life. Would someone differently situated have ended up on death row? That’s a fair question and I’m not sure there is a really good answer, although I suspect the correct answer is “no”. Is there any wonder that many people distrust law enforcement? That is not healthy for any segment of society.

This show is now on hiatus, returning in the summer with new episodes. It will be interesting to see if it continues to present thought provoking stories.

LOBBY DAY with IMAC on Tuesday, 4/8 in Dover.

Join the Interdenominational Ministers Action Council (IMAC) for a rally and lobby day Tuesday April 8th in Dover.

Rev. Beamen will lead a delegation of IMAC members and others who want to see the death penalty repealed in our state. Please join IMAC and the DE Repeal Project on this important lobby day.

TIME: Tuesday, April 8th — 11:45am to 2pm (stay longer if you are able)

GATHER at Wesley United Methodist Church — 209 South State Street, Dover, DE 19901.

RSVP to Abe Bonowitz at abe@abolition.org or 800-973-6548

PLAN:

  • There will be light snacks and we will receive a brief update on the campaign at Wesley United Methodist Church.
  • We will then march together the short distance from the church to Legislative Hall where we will pray together before entering the building. BE SURE TO BRING A PHOTO ID to get through security.
  • We will visit legislative leaders and then be present together as a group inside Legislative Hall as legislators and others enter the House Chamber.
  • Bring a friend, your photo ID, and wear comfortable shoes. The Delaware Repeal Project will provide materials to hand to our legislators.

Comment on CNN’s 3/30/14 Death Row Stories

Comment on CNN’s Death Row Stories from Richard Kiger

Tonight (Duckett [the death row inmate]) is interesting if only because it suggests that some on death row may be there for a good reason. The prosecutor this time did not seem to be as irresponsible as in earlier episodes. Actually, he was pretty decent. There are still problems with Brady material, questionable evidence from a lab (the FBI), unreliable witnesses, what is probably poor training of officers with respect to gathering evidence, and credibility issues.

I am a little surprised that Frank [the investigator] went to Edna Buchanan [the journalist] when he did and that she published without checking things out more carefully. It’s understandable she feels burned and his credibility is now at issue, at least in terms of his judgment and procedural skills. It also troubles me that the defendant seemed, to me, a little cavalier about the situation during the interview.

The allegedly related case in the neighboring county is interesting also. The evidence of misconduct seems pretty thin in terms of what we were told. Can his wife testify against him? I don’t know. There may be a disqualification here because they were married at the time. On the other hand, it does not appear that he told her anything, but, rather, that she observed something, that is, he came home with tangible items that she saw and this made her wonder what he had done. That could be a critical distinction. If she can testify, it remains a good question whether she has a motive to get rid of him, and we don’t know based on what we have been told.

The defense lawyer was a poor choice, it seems. It sounds as though he didn’t do much of anything. On the other hand, what did he have to work with, that is, did he have the resources to conduct discovery and perhaps hire a private detective (something hinted at by the woman who recanted and then un-recanted). Mounting a defense to a case is very expensive; all litigation is expensive. This is one of the problems with a public defender as the defense lawyer: you may be getting a dedicated advocate who is very experienced and knowledgeable, but who is hamstrung by lack of resources to do these very things. Some public defenders are not much, but many are very good lawyers who do their best and work for justice for their clients. I am not knocking PDs, but pointing out that the system does not always allow them to do the kind of job they would like to do.

When you put all these issues side by side, the case against Duckett seems pretty weak and it is natural to wonder if there was a miscarriage of justice. Frank’s misgivings about his innocence are problematic. As individuals, we are all entitled to our opinions as to whether someone is guilty. That’s not the point in a trial. The point is, did the government carry its burden to play by the rules and so present the jury with the evidence it needed to decide if the defendant was guilty beyond a reasonable doubt. I think we are entitled in this case, as presented, to conclude that the system was flawed and so Duckett should not have been convicted. Whether he is guilty of some other crime is irrelevant to this crime.

This brings up another issue. If there is a case against him in the other matter, why does prosecution in that case depend on whether he is set free in the case that was tried to the audience tonight? The answer, of course, is money, but that is cold comfort to the family of the girl who was killed. Is it not cruelly inconsistent to say that the family of the one girl deserve closure, but the family of the other girl can wait another 26 years before they get the same closure? That just doesn’t wash.

All in all, this is an interesting episode because the person on death row appears to deserve to be there, but not for the crime that brought him there. I take that to be the point of tonight’s episode, but if so, the presentation may have been a little subtle for the point that needs to be made. We remain where we have been, presented with a flawed system that is untrustworthy when it comes to convicting people for crimes they are alleged to have committed. I am not ignoring or minimizing the importance of many other reasons to abolish the death penalty, but merely trying to focus on the issue presented.