Death Penalty

Earl Wesley Berry is scheduled to be executed May 21 for the murder of Mary Bounds.  Whatever the alleged benefits of the death penalty are in theory, several aspects of this case demonstrate what an ugly sordid mess it is in practice. 

One of the problems in Earl Wesley Berry's case is that he may be mentally retarded.  Or not.  We'll probably never know.  After the US Supreme Court decided in Atkins v. Virginia, 2002, that people with mental retardation could not be executed, the Mississippi Supreme Court ruled that any inmate with an IQ below 75 could have an evidentiary hearing.  But despite meeting the criteria, Earl Wesley Berry was denied such a hearing because one of his lawyers failed to file an affidavit on time.  With capital punishment in this country, life and death often hinge on such technicalities.

Last year, just before Halloween, Berry's execution was stayed by the US Supreme Court because of the pending Baze lethal injection case.  The stay was granted with only 18 minutes to spare.  I wrote then about how this process tormented the families involved.  Earlier this month, Mary Bounds' daughter Jena Watson reflected on that last minute stay:  "It hit us like a brick in October. We didn't expect it to hit us so hard. It was like she'd died all over again."   

The death penalty and the years spent waiting for an execution have kept this family focused on the killer, the crime, and the traumatic death of their loved one, while a life sentence would have allowed them to begin healing years earlier. 

And last month, when the US Supreme Court ruled in Baze on April 16 that lethal injection could be constitutional and effectively lifted the national moratorium on executions, Mississippi Attorney General Jim Hood acted swiftly, calling on the Mississippi Supreme Court to set Berry's execution date for May 5. May 5 just happened to be Berry's 49th birthday. 

Was this a coincidence, or a shameless political stunt? 

If the latter, it would be just another example of the way the death penalty, and especially the dramatic spectacle of executions, politicizes criminal justice, which is supposed to be about diligently seeking truth, not a forum for creepy (and probably ineffective) political pandering.  For what it's worth, the Mississippi court didn't accept AG Hood's suggestion, and set the date for May 21.  No hearing has been held on Berry's claims of mental retardation.

You can take action to stop the execution here.

Brian

DPAC

The US Supreme Court agreed today to hear the case of Edward Nathaniel Bell (Bell v. Kelly), who was scheduled to be executed in Virginia on July 24. The main issue in Bell's case is that his attorneys presented absolutely no mitigating evidence during the sentencing phase of his trial, basically leaving the field to the prosecution and virtually ensuring that he would get a death sentence.  On appeal, the Virginia Supreme Court upheld the death sentence, ruling that Bell's trial attorneys had not been ineffective.

But the federal courts ruled that the work of Bell's trial attorneys was indeed constitutionally deficient.  Nonetheless, they held that Bell had still not been "prejudiced" by his attorneys' behavior.  The federal courts upheld the Virginia Supreme Court's ruling in part by relying on the 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA), which requires federal courts to show substantial deference to state courts, unless their rulings are "unreasonable".   

Bell argues that in fact he was "prejudiced" by his attorneys' deficient performance, and that the federal courts, including most recently the 4^th Circuit US Court of Appeals, had misinterpreted AEDPA and should have ruled that way, and further, that if he had been in a different circuit (for example, the 3rd, 10^th or 11^th) he would have gotten the favorable ruling he deserved.  Bell's petition to the Supreme Court urges them to take the case in part to resolve this discrepancy in interpretation between the different circuits.  The Supreme Court will hear it in the Fall.

Brian
DPAC

On Sunday, 60 Minutes profiled Dallas District Attorney Craig Watkins, who has proactively sought out and exposed the wrongful convictions of his predecessor, Wade.  In all, 18 men from Dallas County have been cleared by DNA testing; a total of 33 men have been cleared across Texas.   At a "Summit on Wrongful Convictions" in Texas on May 8, legislators, lawyers, exonerees, law enforcement officials, and even a couple of judges discussed how to deal with the inescapable fact that Texas has been getting it wrong an awful lot.   AP coverage of the summit is here, and video of the conference itself should eventually be available here.  An April 30 press conference feature Texas Senator Rodney Ellis announcing the summit is there now.

So, where to begin?

As DA Watkins pointedly remarked, "It can be argued that Texas ... may have one of the worst criminal justice systems in this country.  We have to start where we have the most problems."

Suggestions offered included:

• Mandating how lineups or photos are presented to eyewitnesses. (James Waller, who is 6 foot 4, spent 10 years in prison for a rape committed by a man the victim described as being 5 foot 8.)
• Creating an authority that would oversee crime labs the way a health department oversees restaurants.
• Setting up crime labs that are independent of police departments.
• Re-examining how appeals filed by inmates are treated. (James Woodard, for example, who spent 27 years in prison for a crime he didn't commit, was labeled an abuser of the system for filing too many appeals and requests for DNA testing.)

It's a start, but one of the biggest "wrongful convictions" problems in Texas is in fact the death penalty.  Texas criminal justice is massively and obviously flawed, and yet the Lone Star State has executed 405 people in 25 years, and has 8 more already scheduled for this year.  While 33 innocent men in Texas prisons did get DNA tests and were rightly exonerated, how many others have not been lucky enough to get tests, or did not have DNA evidence in their cases?  And how many of those are on death row now, or perhaps have already been executed?  The first step for Texans concerned about wrongful convictions should be to stop the execution conveyor belt.

Brian

DPAC

The state of Georgia has always had a special place in the history of the US death penalty.  It was Supreme Court cases out of Georgia that both halted (Furman v. Georgia, 1972) and restarted (Gregg v. Georgia, 1976) executions in the US.  In 1987, the Supreme Court ruled in McCleskey v. Kemp, another Georgia case, that statistics demonstrating systemic racial bias could not be used to argue racial bias in a particular death penalty case. 

Now, 21 years later, the state of Georgia has been the first to resume executions since the Supreme Court ruled that lethal injection could be constitutional in Baze v. Rees (pdf). William Earl Lynd was put to death last night for the murder of his girlfriend, Ginger Moore.  But it is telling that Georgia authorities did not openly brag about this dubious achievement.  Governor Sonny Perdue told the media, "It was not something we wanted to necessarily be first at. It was just the fact that this had been there."

Perhaps this is a sign that times have changed, that displaying ghoulish enthusiasm for the death penalty is no longer seen as a smart political move.  Politicians like Governor Perdue are aware that public opinion has slipped, and that public support for alternatives to the death penalty is now as high or higher than support for executions.  And that juries are increasingly reluctant to sentence people to death - in the last two years, death sentences have been lower than at any time since the death penalty was reinstated in 1976.

There will be more executions this year, maybe a lot more, but there will also undoubtedly be more examples of the grave injustices our capital punishment system is known for.  Between September 25, when Texas controversially executed Michael Richard on the same day the Supreme Court agreed to hear Baze v. Rees, and last night, when Georgia executed William Earl Lynd, five men were exonerated from America's death rows.  (There have now been 129 such exonerations.)

The fundamental flaws in our death penalty continue to be exposed and the public continues to slowly turn away.  With our help, eventually politicians, legislatures and courts will get the message. 

Brian

DPAC

After 13 years on North Carolina's death row, Levon "Bo" Jones was exonerated. Jones is the 129^th person exonerated from death row in the United States since the death penalty was reinstated in 1976 and the eighth condemned man to be freed from North Carolina's death row in less than four months.

His release comes as the legal system is re-examining the use of capital punishment in North Carolina. The investigation led federal Judge Terrence Boyle to overturn the conviction after declaring Jones' rights had been violated because of poor attorney performance. Boyle deemed the performance, of defense attorneys Graham Phillips Jr. and Charles C. Henderson, "constitutionally deficient". He criticized the lawyers for failing to research the state's star witness' history well enough to try to discredit her before jurors. He also said they had inadequately prepared to investigate Jones' mental health problems and troubled childhood in attempts to ask the jury to spare Jones the death penalty.

"Given the weakness of the prosecution's case and its heavy reliance on the testimony of Lovely Lorden, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Lovely Lorden was the state's star witness and Jones' former lover. Last April, in an affidavit that Jones' attorneys filed, she recanted her testimony. Lorden said, "Much of what I testified to was simply not true." She said a detective coached her on what to say at Jones' trial and that of co-defendant Larry Lamb. She collected $4,000 from the governor's office as a reward for offering the clues that led to arrests.

Jones' case proves, once again, that the death penalty, besides all the other problems it has, could take the life of an innocent person. One usually thinks that wrongful convictions, innocent people in jail, only happens in movies or soap operas, and that if it were to happen in real life it will just be one in a million. Unfortunately, wrongful convictions, like Jones' case, are more common than we think. Some of the factors leading to wrongful convictions include: inadequate legal representation, police and prosecutorial misconduct, perjured testimony and mistaken eyewitness testimony, racial prejudice, jailhouse "snitch" testimony, suppression and/or misinterpretation of mitigating evidence and community/political pressure to solve a case.

The death penalty is a system which has already proven to be fraught with error therefore is time to abolish it.

~Tania, DPAC intern