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JD Features:
Volume 2
Issue 8
Table of Contents:
From the Editor: Reasons and Excuses for an Unconscionably Late Issue
Feature Stories:
Correction in our Special Edition
How the Legal and Medical Systems failed Patricia and Ryan Stallings
The Michael Brown Story. Is Michael serving a sentence for some one else?
Andy Riendeau, an American Indian who is also known as John Two Names, asserts his innocence of the crimes he was charged with and believes his incarceration is in retaliation for his political activism for his People. You decide.
Robert Waterhouse This is an unusual story for us to publish, but especially fascinating, as we're sure you'll agree. Not everyone would have the time, money or inclination to pursue getting to know his or her namesake across the ocean, and that's only one element that makes this story unique.
Ray Krone is Free At Last. After being wrongly convicted in 1992 and sentenced to death for the 1991 murder of Kim Ancona, Ray Krone was again wrongly convicted in 1996 after a retrial ordered by the Arizona Supreme Court. Sentenced to life imprisonment, DNA tests returned on April 4, 2002 conclusively proved Mr. Krone was innocent. Four days later, on April 8th, a Phoenix judge ordered Ray Krone released from prison after he'd served 10-1/2 years for a murder he didn't commit.
Pamela Sue Reser is Free At Last. Pamela Sue Reser, wrongly convicted in 1999 of raping her four small children and sentenced to 116 years in prison, was released on May 31, 2002 when an investigation by the Oregon State Police uncovered that the crimes she was convicted of hadn't occurred.
Updates:
Mumia Abu-JamalFBI's Frame Up of Four Innocent Men
Tice conviction overturned!
James H. Neal -- Free at LastFeature Articles:
It's About Time! Fred Woodworth's Questioning Of Fingerprint Evidence Is Long Overdue. Read Fred Woodworth's fingerprinting articles. Mr. Woodworth has granted JD the right to reprint his articles.
Register-Guard, the Eugene, OR newspaper publishes an article about Justice Denied.
Voices from Behind the Bars We have three poems: Singing Soul and Transmutation by Donald Marvin Carter and Crossing Over by Harry Fowler archived here.
Caged Bird Reviewed by Clara A. Thomas Boggs
This month in SnapShots: Fingerprint Evidence No Longer Sticks, Conservative US Circuit Court Judges Back Post-Conviction DNA Testing and Historical Times For The Death Penalty.
Reasons and Excuses for an Unconscionably Late Issue
Dear Folks:
This will not be so much an editorial as a plain-speaking letter telling you what's been going on.
As most of you know, we finally did publish that hard-copy edition, although it was touch and go there for a while. We got caught flat-footed. We pushed to publish so that one of our JD Team could take the magazines for what was going to be an event that for various reasons didn't materialize. We didn't have our addresses in order. Many of the magazines were given away by various team members. In the meantime yours truly got stuck with about fifteen hundred copies. Next, the person handling getting addresses together became very ill and is in treatment. She was also a key person for prisoner mail, and we had to reroute that as well.
The next problem-challenge was to promote the benefit dance concert for JD. I had no one to help me promote it, so I hit the streets and put up signs and went everywhere I could to promote the concert. As fate would have it, the date was ill chosen because there were many other competing events that same evening. Our turnout was nowhere near where it needed to be, but some very good things came of it all. We did break even, and the band was excellent. Among the good things is that I met fellow activist Carla Crouch who came from Portland. She runs a group called WEFT (Women Embracing Freedom Together). Hans Sherrer, longtime writer for JD also came for the event, and he in turn invited Royal and Gail Gasso, two excellent people who made a very nice contribution to JD.
The biggest thing to come from the benefit was an interview by a reporter from the Register Guard in Eugene, Oregon. Larry Bacon and photographer Chris Pietsch came to the land to interview me. Once that story appeared on Monday July 8, 2002, the Associated Press picked up the story and it was then published all over Oregon. I got many telephone calls from people who tracked me down since the story told where I live. Mail has also been coming in. At the same time that this has been a blessing for publicity for us, it seriously dented my time available for other things. I do need to add that we are very grateful for the publicity, but there were many errors in the article. I thought I'd learned to always check a reporter's story, but this slipped past me. You may read the article here.
Another event just about did us in on the home front. We had a call from Chip's (my husband's) brother telling us that his father was on full life support. In other words, he had literally died, but was resuscitated. His pancreas ruptured. In an all-out effort, we got him to St. Louis where Al Boggs fell ill. Chip's brother and two sisters shared responsibility for being with their mother in St. Louis, and Chip just returned there for another week's stay. The good news is that Mr. Boggs is now better and may soon be sent home.
One other event has impacted me deeply, and it is that Stormy Thoming-Gale, our able web master has had to give up publishing JD for us because her life has gotten too full of teaching, her children, and the need to take another job. I will be making my maiden voyage in publishing after we publish this issue on the web.
I have also fielded calls from a couple of reporters concerning Derek Tice, who was featured in our November 2000 edition of JD. Derek's father, Larry Tice, is one of those people who knew exactly what to do with what we did for him, sending the story to everyone he could and capturing the attention of television. The calls I got looking for him came from CBS' 48 Hours. It has always been our goal to provide the wrongly convicted person with a tool to tell others of the wrong. In this issue, look for the story of Michael Brown, whose champion knows what to do and has a campaign all planned.
My next huge challenge was that my faithful old computer completely died. Our computer man told me to give it up and step into the future -- that I had to get a new machine. I did, and am still on the learning curve. Because of the new machine, the old Brother printer wouldn't work with Windows XP, so I have to get a new printer as well.
These months have been a big challenge. Stormy wants us to change web hosts, and I'm sure that will take some doing, but she also has said that we will publish two issues back to back to make it up to our readers. I agree, and we intend to give our readers their just due.
Other JD members have also gone through some rough times, and we have become so close that we all feel it keenly when the others suffer. One lost her father-in-law to cancer, and the other has been dealing with becoming a grandmother, while the third has been looking after sick parents and also lost a father-in-law. We are all only human and beg your understanding for that humanity.
The good news is that we have a few people working on getting grants for us, and if that comes to pass, we will be able to hire some people to help us become more professional.
In the meantime, consider yourselves let into our JD Family to get a glimpse of what's plagued us and beset us since you last heard from us.
For the great staff of JD,
Sincerely yours,
Clara A. Thomas Boggs
Twice Wrongly Convicted of Murder -- Ray Krone Is Set Free After 10 Years
By Hans Sherrer
Ray Krone was walking a free man in the bright Arizona sun on the afternoon of Monday, April 8th. That was remarkable because that morning, as every morning for the previous 10-1/2 years, he'd awakened in a prison cell after being convicted twice of 36-year-old Kim Ancona's brutal December 1991 murder in a Phoenix lounge.
Ray's conviction in 1992 was primarily based on "expert" testimony that his teeth matched bite marks on Ms. Ancona's breast and throat. After spending four years on Arizona's death row, Ray's conviction was thrown out by the Arizona Supreme Court. The reversal of his conviction was based on the prosecution's concealment from Ray's lawyers of a videotape about the bite mark evidence until just before the trial began. The Court did not rule on the issue in Ray's appeal that the prosecution had also concealed exculpatory test results of a prosecution forensic odontologist that concluded Ray's bite mark wasn't consistent with those found on Ms. Ancona.
Although DNA tests introduced at his second trial proved that blood found on Ms. Ancona didn't belong to either her or Ray, he was again convicted on the basis of "expert" testimony linking his teeth to the bite marks on Ms. Ancona. The prosecution had no other physical "evidence" that it claimed linked Ray to Kim's murder.
After his second conviction in 1996, Ray told The Arizona Republic he was innocent. "I was not there that night. "[This] pretty much rules out any faith I have in truth and justice." The trial judge, Maricopa County Superior Court Judge James McDougall, expressed doubt about the outcome of the trial when he wrote, "The court is left with a residual or lingering doubt about the clear identity of the killer." Judge McDougall also wrote after sentencing Ray to life in prison, "This is one of those cases that will haunt me for the rest of my life, wondering whether I have done the right thing."
Ray Krone, an Air Force veteran with no criminal record, was a postal worker and regularly played darts at the CBS Lounge in Phoenix where Kim Ancona worked. They casually knew each other, and Ray had even given Kim a ride to a Christmas party in his prized 1970 Corvette a week before her brutal murder. Ray's roommate corroborated Ray's statement to the police that he went to bed at 10 p.m. on the night of her murder.
Proclaiming his innocence since the time he first came under suspicion, the April 4th DNA test results of saliva and blood found on Ms. Ancona's clothes and body proved Ray Krone had been telling the truth. Not only did the tests exclude Ray, but they also implicated a man, Kenneth Phillips, currently imprisoned in Arizona for sexually assaulting and choking a 7-year-old girl. At the time of Kim Ancona's murder Kenneth Phillips lived 600 yards from the CBS Lounge and was on probation for breaking into a neighboring woman's apartment and choking her while threatening to kill her. Twenty days after Ms. Ancona's murder Mr. Phillips was accused of assaulting the 7-year-old.
After the DNA test results were obtained on April 4th, Ray's lawyer, Alan Simpson, said: "This proves with certainty that Ray Krone is an innocent man. Every day from this point forward that Ray spends in jail is a day the county acts at their own peril." Four days later Ray was a free man.
By Charles Whitehouse, AP Ray Krone, right, leaves prison with lawyer Christopher Plourd.Maricopa County Attorney Rick Romley defended his prosecution of Ray Krone by saying there was "strong circumstantial evidence" of his guilt. In response to the conclusive proof that an innocent Ray Krone spent 10-1/2 years in prison, four of which was spent on Arizona's death row, Prosecutor Romley said, "we will try to do better." He neglected to mention that the prosecution's concealment of the odontologist's report that cast doubt on Ray's guilt prior to his first trial indicates they may have knowingly prosecuted an innocent man.
The prosecution's primary witness, Nevada forensic dentist Dr. Raymond Rawson defended his testimony. In an April 8, 2002 article The Arizona Republic quoted Dr. Rawson as saying, "The bite marks were just one piece of evidence with whatever else the jury considered, that is what convicted him." The callousness of Dr. Rawson towards the horrific wrong he was instrumental in inflicting on Ray Krone is indicated by the fact that the jury in both of Ray Krone's trials stated their guilty verdict was based on the bite mark testimony, not on "whatever else the jury considered."
Dr. Rawson's defense of helping to put an innocent Ray Krone on Arizona's death row is all the more feeble when viewed from the latest research about the unreliability of bite mark analysis. The coauthor of a book on forensic evidence, Arizona State University Law School Professor Michael J. Saks describes bite mark testimony as "classic junk science." The Los Angeles Times reported on April 10, 2002 that 63.5% of bite mark investigations resulted in "false positives" and another 22% resulted in "false negatives," according to a study by the American Board of Forensic Odontologists. Put another way, bite mark testimony may be no more likely to accurately identify the perpetrator of a crime than if the prosecution enlisted an astrologer to link a suspect to a victim by working out their respective astrological charts and plotting a convergence point at the time of the crime. Yet, the prosecution's reliance on "junk" bite mark evidence, and the jury's false belief it was scientific, put Ray Krone on track to have a one way trip to Arizona's death chamber. Professor Saks was quoted in the LA Times' article as saying, "At an absolute minimum, jurors should be informed of the relative accuracy or inaccuracy of these tests so they don't think there is more to them than there is."
Although Ray was twice convicted of the brutal stabbing murder of an attractive woman, his family's unwavering belief in his innocence led them to spend over $300,000 fighting for his exoneration and freedom. A key person was Jim Rix, a cousin Ray had not met before his conviction. After visiting Ray in prison, Mr. Rix, a Lake Tahoe businessman, organized the efforts that culminated in Ray's release. As Ray said the day of his release, "Justice has finally come." He got strength from knowing he was innocent, and "there was the strength I got from my friends and family. They never doubted I was innocent. They did everything they could to help me not get down."
Standing outside the prison in Yuma from which he had just been released, Ray said in an interview with Phoenix's KPNX-TV, "For 10 years I felt less than human. This is certainly a strange feeling, and I think it'll take a while for it to set in." Kim Ancona's mother was quoted in The Arizona Republic as saying after learning of the DNA test results, "My God, I hope he becomes a millionaire, because I can't give him those 10-1/2 years back."
According to the Death Penalty Information Center, Ray Krone is the 100th innocent man in the past 29 years released from prison after spending time on death row waiting to be led to a State's death chamber. Before his prosecution, Ray believed in the death penalty because he thought it was reserved for vicious criminals and mass murders. He knows better now. The Arizona Republic on April 9th quoted him as saying, "They would have executed me. Could I have any faith in it anymore? Absolutely not. I can't be the only one. ... People need to address this issue."
The New York Times echoed those sentiments in an April 10th editorial about Ray Krone's exoneration titled Death is Different. That editorial read in part:
" Given the way death-penalty crimes are prosecuted, as the wrongful-conviction scandals in Illinois a few years back showed, a certain number of mistaken convictions are essentially built into the process." A sad reality of the criminal justice system is that in all too many cases, defendants are convicted of serious crimes on the flimsiest of evidence. Juries often hang guilty verdicts on the word of a single witness, despite numerous academic studies showing that witnesses are frequently unreliable.
Courts admit evidence of dubious quality at trial, and send defendants to prison -- or to death -- on the basis of it. The case against Mr. Krone was largely circumstantial, including expert but apparently inaccurate, testimony that his teeth matched bite marks on the victim.
In the face of this powerful evidence that the system is broken, the courts should be chastened -- and they should be working hard to build in protections against executing the wrongfully convicted. Sadly, however, the Supreme Court appeared unconcerned about the fairness of the death penalty in its ruling in a case two weeks ago involving effective assistance of counsel."
In the case referred to in the Times' editorial, Mickens v. Taylor, Warden, No. 009285 (March 27, 2002), the Supreme Court ruled that it was not fundamentally violative of due process for an accused murderer to be appointed a lawyer that unbeknownst to him was the victim's lawyer at the time he was killed, which was the business day preceding his appointment as the defendant's attorney. In other words, one day the attorney represented the victim and the next business day he was appointed to represent his client's accused killer: all the while concealing that fact from his "new" client who was convicted and sentenced to death for killing the lawyer's previous client. In his dissent, Justice John Paul Stevens noted: "A rule that allows the State to foist a murder victim's lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice." Justice Breyer, with whom Justice Ginsburg joined in dissenting, was more direct in assessing the meaning of the Court's action: "This kind of breakdown in the criminal justice system creates, at a minimum, the appearance that the proceeding will not reliably serve its function as a vehicle for determination of guilt or innocence, and the resulting criminal punishment will not be regarded as fundamentally fair."
Every Court in the country takes its cues from the attitudes expressed by the Supreme Court, and as the New York Times noted in its editorial, the highest court in the land is no longer concerned with whether it even appears a defendant is accorded a fair trial. In the absence of a court acting in a manner that creates the appearance a defendant received a fair trial, it is unlikely he or she received one. That lack of concern by the nation's courts with a defendant's possible innocence nearly condemned Ray Krone to a life in hell, even though he is as innocent of Kim Ancona's murder as you, or any other readers of this report, are. That emphasizes the most troubling aspect of Ray's case and the lesson it has for us to again be reminded of: There are a disturbing number of "Ray Krones," reliably estimated to number over a hundred thousand people, who have been left to twist in the wind by the Courts of this country to serve a prison sentence for a crime the person didn't commit.
It is heartening that Ray Krone had a happy ending to his gruesome 10-1/2 year saga. Now 45, he has the opportunity to begin life anew on the outside. Without restraint he can drive his Corvette and spend time with the people who cared enough to support him while he was imprisoned.
On the other hand, it is sobering to realize that Ray was blessed in two crucial ways: he had caring relatives with the money to hire a competent lawyer to fight for his freedom; and DNA tests capable of excluding him as Kim Ancona's murderer were developed after his conviction. Otherwise, he would have spent the rest of his natural life imprisoned in the nightmarish hell of Arizona's prison system due to the inability of this country's judicial process to reliably distinguish the guilty from the innocent.
Sources: "DNA good new for convict: Convicted twice in slaying," Beth DeFalco (staff writer), The Arizona Republic, March 23, 2002.
"DNA frees Arizona inmate after 10 years in prison: 10 years included time on death row," Dennis Wagner, Beth DeFalco, and Patricia Biggs, The Arizona Republic, April 9, 2002.
"DNA Leads to Release of Ariz. Convict," Foster Klug (AP), Seattle Post-Intelligencer, April 8, 2002.
"Death Penalty Foes Mark a Milestone: Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U.S. prisoner to be exonerated since executions resumed," Henry Weinstein (staff writer), Los Angeles Times, April 10, 2002.
"Death is Different," Editorial Staff, The New York Times, April 10, 2002.
Innocent Small-Town Oregon Woman Freed From 116 Year Sentence For Non-existent Crimes
By Hans Sherrer
Introduction: Pamela Sue Reser, wrongly convicted in 1999 of raping her four small children and sentenced to 116 years in prison, was released on May 31, 2002 when an investigation by the Oregon State Police uncovered that the crimes she was convicted of hadn't occurred.
On January 9, 1999 Pamela Sue Reser of McMinnville, Oregon had her life turned upside down in the most horrific way imaginable. She was the 33-year-old single mother of three sons and a daughter, all less than eight years old, when she was arrested on the accusation of raping her children.
Protesting her innocence, Pamela testified on her behalf at her five-day trial in 1999 that the allegations she forced her children to have sex with her, each other and her boyfriends was pure fantasy. Pamela suggested the children had been influenced to make up their stories by their foster mother. There was no physical evidence of any kind supporting that any of the alleged events had occurred, and the sole evidence against Pamela was the testimony of her young children. Pamela was nevertheless convicted of seventeen counts of first-degree rape, eight counts of sodomy and four counts of first-degree sexual abuse. Remarkably, none of the men allegedly involved in the alleged rapes was prosecuted.
After her conviction Pamela told her lawyer, "Eventually, my children will talk about this and the truth will come out."
Resolutely affirming her innocence at her sentencing, the judge was unmoved and issued her the spirit-crushing sentence of 116 years in prison.
Labeled as a heinous sexual predator and buried in the depths of the Oregon state prison system for what was effectively a life sentence, Pamela made a simple plea for help on an Internet web site for women prisoners. On her Ladies Behind Bars web page Pamela wrote:
"Lady in Need: Imagine being convicted of a crime you didn't commit, who would be in your corner?"
Picture of Pamela Sue Reser as she appeared on her Internet web page asking for help.The break Pamela needed to have her innocence proved came as rapidly and unexpectedly as the bewildering accusations and prosecution that put her in prison for life. In May of 2002, it came to light during an unrelated investigation that Pamela's children had recanted their testimony against their mother. Oregon State Police detectives were called in to investigate. After interviewing the children and other witnesses involved in the case, the OSP detectives verified that Pamela's four children admitted they made up the alleged abuse she was convicted of. A polygraph test of one of the children confirmed to the investigators the recantations were real.
On Wednesday, May 29th Pamela was appointed a lawyer to represent her. Given the weight of evidence Pamela Reser had been wrongly convicted of non-existent crimes, just two days later, on May 31, 2002, Yamhill County Circuit Judge John Hitchcock granted a motion for a new trial and ordered her immediate release from custody. Judge Hitchcock was the same judge who had presided over her trial and sentenced her to a lifetime entombed in prison.
At the time her release was ordered, a hearing on Pamela's retrial was scheduled for July 1, 2002. The Yamhill County prosecutor, however, indicated that since her conviction was solely based on the testimony of her children, no retrial could occur given the children's admissions no crimes had occurred. Remarkably, in the face of having prosecuted and been responsible for the imprisonment of an innocent Pamela Reser, the prosecutor also said: "It was one of the stronger cases I prosecuted. She denied all along the facts and circumstances." If the prosecution of an innocent woman who unwaveringly asserted her innocence was one of the prosecutor's stronger cases, then there is little doubt he has prosecuted numerous other innocent men and women who may continue to languish in Oregon's prison system.
Pamela Sue Reser was quietly let out the back door of the Yamhill County Jail in McMinnville, Oregon an hour and a half after her release was ordered. It was where her nightmare had begun more than three years before, and the prison issued release clothing she was wearing were a sign of the ordeal she had endured. Waiting for Pamela was her mother and four friends. As she saw them she exclaimed: "I can't believe I'm out! My God! My God!"
Picture of Pamela Sue Reser as she was greeted by her mother and friends when released.Her mother, Millie Reser, is angry at the ordeal her daughter was made to endure: ....The McMinnville NewsRegister reported her as saying: "It was a misjustice. They need to know what happened."
What happened is that Pamela's children were apparently upset at their mom, and she readily admits to have been a "bad mommy." That personal self assessment however, may be as much due to her having had more than three years in prison to think about why her children would make up fantastic stories about her, as it may be rooted in the reality of possible deficiencies in her parenting skills.
After kissing a flowering bush, Pamela said as she was leaving the jail parking lot, "I'm so overwhelmed. I've got to take it slow."
Pamela's lonely and improbable path to being exonerated is reflected by searching on Google's Internet search service for web sites listing "Pamela Reser." A single reference to Pamela is generated. That lone reference on Google is for the tenuous lifeline between Pamela and the outside world created by her pen pal web page, and it says simply: "Pamela Reser - Seeking help and friends in a wrongful conviction."
Source: "Wrongly jailed mom freed," Matthew D. LaPlante (staff), McMinnville NewsRegister McMinnville, OR, June 1, 2002.
"Reser not the first to face false accusations," David Bates (staff), McMinnville NewsRegister, McMinnville, OR, June 1, 2002.
Special recognition is given to radio talk show host Mary Starrett for bringing the details of Pamela Sue Reser's case to the authors attention during her program on June 3, 2002. Mary Starrett's program is on 810 am in Portland, Oregon from 2pm to 4pm West Coast time, Monday through Friday, and it is broadcast live over the Internet at www.kpdq.com.
Note by Hans Sherrer:
One only has to spend a few minutes glancing through the web site that Pamela Reser had her web page on, Ladies Behind Bars, to find other women who claim they were wrongly convicted. Just like Pamela Reser, some or perhaps all of those women are innocent of the crimes they were convicted of. It would mean a lot to any one of those women to send a colorful postcard of a nature scene and write some encouraging words. I suggest sending a postcard, because colorful things of beauty taken for granted by people on the outside are sorely missing in the drab world of a women' or men's prison. The Ladies Behind Bars web site is at: http://4lbb.com/browse.htm. There are a number of other web sites listing women prisoners that can be found doing an Internet search.
By William Kreuter
On December 18, 2001, a federal district court judge in Pennsylvania, William Yohn, overturned the death sentence of Mumia Abu-Jamal. Yohn ordered the state to hold a new sentencing trial within 180 days; if the state fails to do so then the sentence will default to life imprisonment -- although appeals of Yohn's order make it unlikely that this deadline will be enforced.
Abu-Jamal, well-known for his "Live From Death Row" radio commentaries, several books and his career before incarceration as a radio journalist, political activist and one-time Black Panther member, has been imprisoned since Daniel Faulkner, a Philadelphia policeman, was killed in December, 1981. Abu-Jamal was convicted in 1982 in a trial denounced by Amnesty International and many others as not meeting minimum world standards of due process.
Yohn cited problems with the jury charge and verdict form in the 1982 trial. The judge said jurors should have been able to consider mitigating circumstances during sentencing even if they did not unanimously agree those circumstances existed.
The judge denied all Abu-Jamal's other claims and refused his request for a new trial. Both sides are appealing to the Third Circuit; the district attorney of Philadelphia, Lynne Abraham (called "America's Deadliest DA" by the New York Times because her office so frequently seeks death sentences), will seek to reinstate the death sentence, while Abu-Jamal's attorneys will seek to overturn the conviction.
Abu-Jamal exhausted the state appeals process two years ago, but in a petition filed in September 2001 he argued that the defense had new evidence to clear him, including a confession by a man named Arnold Beverly. A judge ruled in November, 2001, that she did not have jurisdiction to consider this claim. In a 1999 affidavit, Beverly stated he was hired by the mob to kill Faulkner because the officer had interfered with mob payoffs to police.
This December, on the twentieth anniversary of Faulkner's death, Faulkner's supporters dedicated a plaque on the spot where he was gunned down and Abu-Jamal's supporters held a rally at Philadelphia City Hall and were harassed by authorities. Harassment both of his supporters and of his lawyers has frequently marked the case since 1981.
The trial judge, Albert Sabo, who died May 8, 2002, was a lifetime member of the policemen's union, which has mounted a nationwide campaign for Abu-Jamal's execution. Sabo was almost universally regarded as biased against defendants. A court official has sworn in an affidavit that Sabo said of Abu-Jamal, "I'm going to help them fry the nigger." Even before Abu-Jamal's 1982 trial, Sabo had sentenced more convicts to death than any other judge in America. At the trial and also in the several appeal hearings over which Sabo presided, Sabo almost without exception granted every objection of the prosecution and denied each of the defense. He excluded Abu-Jamal from the trial courtroom for a time and was described by at least one conservative journalist as blatantly antagonistic to the defense. At one hearing he imprisoned one of Abu-Jamal's lawyers for attempting to raise an objection. Not long after presiding over Abu-Jamal's proceedings in the mid-1990s, Sabo was removed from the bench by the Pennsylvania Supreme Court, apparently on account of his having intimidated lawyers in numerous cases.
A death sentence was obtained when Sabo allowed the prosecution to question Abu-Jamal about his abstract political beliefs as a former teenage member of the Black Panthers. Because Abu-Jamal had happened upon Faulkner by accident and the crime occurred during a scuffle, the crime clearly was not premeditated and the state therefore needed (and was permitted) to resort to a distortion of Abu-Jamal's politics, to which he in any event had a First Amendment right, to obtain a death sentence.
Yohn refused to grant relief on that basis, nor on any of numerous other claims, including Sabo's bias, ineffective trial counsel, that Abu-Jamal's supposed confession and much other evidence were fabrications, that state witnesses were coerced or were granted favors, and that Abu-Jamal had ballistics evidence in his favor. The sole defense issue favored by Yohn was that of improper jury instructions. While not granting relief on grounds that Sabo and the prosecution illegally kept blacks off juries, Yohn did find "arguable merit" in that claim, which gives Abu-Jamal more latitude to appeal on that basis than on the 27 other claims he made.
Amnesty International and other groups which have criticized the prosecution, while praising the vacating of the death sentence, continued to call for a new trial. Amnesty said, "After many years of monitoring the case and an exhaustive review of the trial transcript and other documents, [we have] concluded that the proceedings under which Abu-Jamal was tried, convicted and sentenced to death failed to meet minimum international standards for fair trials. [Amnesty] believes that only a new trial that allows for the introduction of new evidence will provide a just and fair verdict."
The capital-punishment director of the American Civil Liberties Union said, "Today's decision by U.S. District Judge William Yohn to throw out Mumia Abu-Jamal's death sentence due to improper courtroom procedure underscores the point that our nation's death penalty system is riddled with flaws."
Abu-Jamal was recently made an honorary citizen of Paris. Support for him is widespread at official levels in Europe. Despite, or because of, Abu-Jamal's familiarity in this country, Yohn's was among the few even partly favorable rulings. At one point, the United States Supreme Court reversed itself twice, in effect creating rules that uniquely applied only to Abu-Jamal, to his disadvantage.
If Yohn's decision ultimately is upheld, resulting in a new penalty trial but not a new trial of guilt, then prospects for a second death sentence are unclear. Appeals in any event are certain to last years.
William Kreuter volunteers as death penalty abolition coordinator in Washington State for the worldwide human-rights group Amnesty International. Kreuter is a former board member of the Washington Coalition to Abolish the Death Penalty.
Update for William Heirens, by Dolores A. Kennedy, JD Affiliate{Note: The case on William Heirens may be found in Volume 1, Issue 10.}
On April 4, 2002, a clemency hearing was held in Chicago, IL on the case of William Heirens, convicted of three murders in 1946, and incarcerated in Illinois prisons since that time. Heirens, who confessed to the murders under a plea agreement, has been maintaining his innocence for 56 years. Lawrence Marshall of Northwestern University's Center on Wrongful Convictions and Steven Drizin, of the Children and Family Justice Center, represented Heirens at the hearing.
"The Heirens case has more sources of error leading to wrongful conviction than any other case we have studied," said Drizin. He named police and prosecutorial misconduct, bad lawyering, junk science, shoddy lab work, mistaken eyewitness identification and coerced confessions as those sources of error.
The hearing generated enormous publicity both locally and nationally. The clemency board is expected to make their recommendation to Governor George Ryan within two weeks. There is no time frame under which the Governor is obligated to make a decision. For more on the Heirens case, visit www.freeheirens.com.
The Heirens case is the subject of A&E's American Justice program scheduled to air at 5:00 p.m. ET on May 10, 2002. Entitled "Who is the Lipstick Killer?" the show first aired on March 20, 2002.
Update On the FBI's Frame-up of Four Innocent Men in Boston
By Hans Sherrer
Justice Denied published an article in the May 2001 issue (V 2 Issue 5) about four innocent men framed by the FBI for the 1965 murder of Edward Deegan in Boston. The prosecution's star witness against the men was Joseph Barboza. In December 2000, lawyers for two of the men obtained documents proving that Mr. Barboza was an FBI informant who was involved in Mr. Deegan's murder. After Mr. Barboza gave his perjured testimony against the innocent men at their 1967 trial, he was rewarded by being the first person placed in the U.S. Department of Justice's witness protection program.
Two of the four innocent men died in prison, and the two survivors, Joseph Salvati and Peter Limone, were released after spending 30 and 33 years respectively in prison.
The U.S. House's Government reform Committee is investigating the FBI's handling of informants, including the agency's role in the frame-up of the innocent men who wrongly spent decades in prison for Mr. Deegan's murder. On December 14, 2001, President Bush invoked executive privilege for the first time during his presidency when he refused to comply with a subpoena from the Committee for prosecutor's records, including those related to Mr. Deegan's murder, the frame-up of the innocent men, and informant Barboza's role in the murder and frame-up.
In refusing to turn the prosecutor's records over to Congress, some of which are more than 35 years old, President Bush claimed disclosure of the information would "inhibit the candor necessary" for the functioning of the executive branch, and it would be "contrary to the national interest."
Shocked at President Bush's claim that it was in the interests of national security to conceal records, committee chairman Dan Burton (R Indiana) exclaimed: "This is not a monarchy." He also said he might seek Congressional authorization to file a suit in federal court seeking a court order for the executive branch to produce the documents.
Concerning the President's refusal to comply with the subpoena, the LA Times-Washington Post wire service story distributed nationally stated in part:
"Burton is particularly incensed about the now-closed case of Joe Salvati, a man the FBI knew was innocent when he went to prison for 30 years on murder charges. Burton said Salvati was convicted on the basis of lies told on the stand by Joe "The Animal" Barboza, a prized FBI informant who had a grudge against Salvati."So the nearly four decades long FBI and Justice Department cover-up related to Mr. Deegan's murder continues. However, the threads are slowly unraveling.
One of the cover-up threads unraveled in mid-December of 2001. A fifth man convicted of Mr. Deegan's murder, Wilfred French, was ordered released from prison by a Massachusetts's Superior Court Judge. Imprisoned for 33 years, the state's prosecutors conceded that Mr. French was deprived of a fair trial by the FBI's misconduct and concealment of information. Although it is unknown at this time if Mr. French is innocent like the other four men exonerated of Mr. Deegan's murder, there is no question he didn't get a fair trial.
It seems likely that President Bush would refuse to honor a Congressional subpoena unless the requested records contained damning information about the activities of the FBI and the U.S. department of Justice. So when that concealed information comes to light, there may be startling revelations about the government's deliberate prosecution and imprisonment of at least four innocent men for Mr. Deegan's murder.
Sources:
"Four Men Exonerated of 1965 Murder After FBI Frame-up is Exposed," By Hans Sherrer, Justice Denied, May 2001, vol.2, no. 5, 15-16.
"Bush claims privilege, rejects two congressional subpoenas," Ellen Nakashima (LA Times-Washington Post Service), The Oregonian, December 14, 2001, A32.
"Man freed after 33 years in Massachusetts prison," John Bacon (Staff Writer), USA Today, December 20, 2001, 3A.
Tice conviction overturned!Derek Tice: An update by his father, Larry Tice.
An article was written and published in the November 2000 issue of Justice Denied entitled "A Tragedy of Coerced Confession -- The Derek Tice Injustice Story". This article can be read at http://www.justicedenied.org/derecktice.htm
Following the publication of the article, there was little activity until March of 2001, when I received an email from a producer for Medstar Television in New York who had read the article. There was a small amount of discussion and production was started in April 2001. The program broadcast date was set for June 7, 2001 on The Learning Channel. June 7th had another additional significance in that it was exactly one year earlier, June 7th, 2000, that we were in a Norfolk Court Room as Judge Charles E. Poston sentenced Derek to two life terms in prison. The trial had started on Monday, February 7, 2000 with the jury returning a guilty verdict on Friday, February 11, 2000. Then on Monday, February 14, 2000, the day after Derek's thirtierth birthday, the jury recommended the two life terms.
The Learning Channel aired the program twice on June 7th and once on June 9th. The program was on their Medical Detectives series and was entitled "Eight Men Out". Most Medical Detectives programs are half-hour programs but there are some one-hour programs. This was one of them. The Learning Channel again showed the program three times in September, then another three times in January 2002. With each group of showings I received emails from people who had seen the program and wanted to express their disbelief that such a travesty of justice could have occurred and their anger that it had occurred. Through this program some people could associate with Derek with the realization that this happen to a member of their family. We are taught to trust our police and other officials, but here is an example of the system gone awry, where the facts are disregarded and the innocent are prosecuted without regard for the truth.
Some of the emails have included offers of assistance and a request to be kept informed as things happen. There has been one web site developed by a lady in Texas and another is under construction by an individual who just wants to do something. Derek is in correspondence with several individuals who care. The list of supporters continues to grow all across the United States and as far away as Malaysia. One supporter has placed a copy of the Medical Detectives "Eight Men Out" episode in the library of Johns Hopkins University and even includes Derek's case in their classes.
After the trial a Motion for Appeal was filed with the Virginias Court of Appeals based on three points: 1. That the jury was mis-instructed to the extent that the instruction allowed the prosecution a lesser burden of proof. 2. That the court erred in its not allowing the introduction of Omar Ballard's confession and the letter that he had written in which he also admitted to the rape and murder. 3. That the court erred in its not allowing the introduction of Ballard's criminal record. The Virginia Court of Appeals did approve the motion to appeal but only on items 1 and 2. Item 3 was to be excluded. Arguments before a three-judge panel were presented on January 15, 2002. The Court of Appeals overturned both convictions, rape and murder, and remanded the case back to the Norfolk Commonwealth's Attorney's Office. The Norfolk Commonwealth's Attorney at the time of the crime was Mr. Calvin Depew, who later left Norfolk and was replaced by Mr. Doyle. Mr. Doyle was the attorney for one of the defendants, Rick Pauley, and, citing a conflict of interest, asked that the Chesapeake Commonwealth's Attorney handle the case. Shortly after Mr. Doyle replaced Mr. Depew, the assistant prosecutor, Mr. D. J. Hansen left Norfolk and went to Chesapeake. Now he may be the prosecutor for the retrial.
Item 3 of the Motion for Appeal was the lack of admission of Ballard's criminal record, which consisted of an incident that occurred on June 24, 1997, in which Omar Ballard maliciously wounded or caused bodily injury to M. M. with intent to maim, disfigure, disable or kill. The victim of this offense lived in the same apartment complex as the Boskos. This was thirteen days prior to the rape and murder of Michelle Moore-Bosko. Then he was arrested and confessed to the rape of a fourteen-year-old girl on July 18, 1997. This offense occurred eleven days after the rape and murder of Michelle. The bruises on the 14-year-old girl were consistent with choking and were similar to the bruises found on Michelle Moore-Bosko. Yet Judge Poston ruled that this could not be admitted because it was not in close enough proximity.
During the original trial, the prosecution, consisting of Valerie Bowen and D. J. Hansen, went to great lengths to show, complete with crime scene and autopsy photos, that indeed Michelle Moore-Bosko was raped and murdered. All this was intended to make a psychological impact on the jury and to show that anyone who could commit such a crime had to be punished. Yet when it came to producing any evidence to connect Derek to the crime, they couldn't, because there was no evidence to be presented. The only thing that the prosecution had was the coerced confession. According to Dr. Richard Leo, a leading authority on false confessions, for a confession to be valid it should be compared to the crime scene evidence. If the confession does not match the evidence then the confession is probably false. Omar Ballard's confession matched the crime scene evidence, whereas Derek's did not. Omar Ballard had the only DNA match, but again Derek did not. According to Virginia's own forensic lab technician, Derek was absolutely excluded as being a contributor to the DNA, while Ballard was an absolute match.
As for police Detective R. G. Ford, as more and more people hear of Derek's case, we receive more information. Although not yet substantiated, I have been told that Ford sometime in the 1980's was brought up on charges of physically beating a suspect. I do have a copy of the newspaper article from 1990 where Ford was reassigned from the detectives because of the coercion of a confession from three teenagers. Ford was reassigned to the detectives in 1997 where he is said to have coerced a confession from a retarded person. Although the court sealed the documents, I have a physical record of this and we know the name of the retarded person's lawyer. Then there were the coercions connected with Michelle's case. There is even an, as present, unsubstantiated report that Ford has been accused of framing an inmate for murder. Excuse me but is there a pattern here?
Now we wait for a retrial scheduled for January 27, 2003 in Alexandria Circuit Court.
Questions to ponder:
What is the reasoning behind the decision to retry a case with no physical or forensic evidence?
How can Ford continue his method of investigation with such apparent immunity?
Why were we never able to file a complaint against Ford with the Norfolk Police Departments Internal Affairs Division?
Why did letters to the Chief of Police, the Mayor, the City Manager, and the head of Internal Affairs Division get totally ignored by all but the Chief of Police, who merely wrote back and said that Ford's actions were "not in the purview of this division"?
Why do members of the so-called justice system have to make you believe that they do not make mistakes? After all we are all human and therefore are prone to make mistakes; it is just part of being human. Since when do members of the Commonwealth's Attorney's Office and judges or anyone in the so-called justice system get the concept that they are infallible? I am an electrical engineer by profession and a registered professional engineer in several states, yet I make mistakes and when I do I am held accountable for them. I am human and I make mistakes, I readily admit that. Why are members of the so-called legal system not held accountable for their mistakes that they do make but to which they refuse to admit? Why is it that you can go downtown looking for "justice" and all you find is "just us"?
So, for now the nightmare continues. Our son continues to be a pawn in the sick, demented game called Virginia justice.
By:
Larry A. Tice
Derek Tice's father
James H. Neal -- Free at LastPrison ordeal is finally over
By Barbara Jean McAtlin, J:D Staff
On February 19, 2002, James H. "Jimmy" Neal appeared in US Superior Court in Washington, DC, with his lawyer Mark Roshon to request a sentence reduction from Superior Court Judge Eilperin. For many months Roshon had worked tirelessly with assistant US attorney Deborah Long-Doyle to arrive at a satisfactory agreement regarding Jimmy's unfair sentence. Rochon's hard work paid off. The agreement the pair reached included a lengthy probationary period for Jimmy after his immediate release from prison. Considering the circumstances surrounding Jimmy's conviction, the probationary period seemed a tad harsh, but the promise of release was enough to seal the agreement.
Jimmy was greeted by the many faces of his family and friends, including me, as he was escorted into the courtroom. Although Mark Rochon had requested there be no "peanut gallery," Jimmy had so many supporters he was unable to stop people from being there.
After nervously waiting in the courthouse hallway for the courtroom to open for what seemed like an eternity (but was actually only about twenty minutes) we all filed into the courtroom to wait for the proceedings to begin. We stood for Judge Eilperin, then quietly took our seats while the handsome, salt and pepper-haired judge gave us our instructions. His instructions included being quiet no matter what the outcome. Not to fear, we were quieter than any church mouse ever thought of being!
After the judge's speech to us, Mark Rochon stood to begin his argument for a sentence reduction. Even though the evidence of Jimmy's innocence was mentioned periodically, because the issue was a sentence reduction, most of Rochon's very eloquent argument included Jimmy's unfair sentence. Not a single sound could be heard from the gallery.
After Rochon concluded his argument, Ms. Long-Doyle stood to deliver hers. She cited her reasoning for agreeing to grant a sentence reduction to Jimmy and called the judge's attention to particular cases she had found that backed up her argument.
Jimmy was allowed to say a few words and that's when the first tears were seen in the gallery. Addressing the judge, Jimmy asked only for a miracle.
At last the moment of truth had come. Jimmy's fate was in Judge Eilperin's hands now. The judge shuffled some papers, said something to his clerk, raised his gavel and exclaimed, "Time served!"
Of all the scenarios Jimmy's supporters had talked about, "time served" was the one we hadn't even dared hope for. We didn't even think it was within our reach. Here was Jimmy's miracle.
Everything from that moment on is a blur. Rochon met with all of us in the hallway to speak with us, but I seriously doubt any of us really remembers what he said. I know I don't remember leaving the courthouse, screaming an excited message into my boyfriend's voicemail box, or getting on the subway train to head toward home. I do know that Jimmy's daughters, Jashawn and Jimeka, finally got their daddy back and Jimmy's grandparents finally have their grandson with them. Stunned excitement is the only way to describe the feeling after hearing "time served."
Jimmy has been out of prison for just over a week as of this writing. (It's now been five months.) I met him at the DC Jail the night he got out. I was able to watch him use a cell phone for the first time. I was able to watch him hold his five-week-old granddaughter for the first time. He's learning how to use the Internet to communicate with friends. So many things have changed since Jimmy went to prison. The world has moved on. Fifteen years is a long time. A very long time.
Welcome home Jimmy. Knowing you has been a true lesson in friendship for me. Thank you.
(Jimmy Neal had been convicted of a series of purse snatchings that the evidence shows he couldn't possibly have committed. He was sentenced to 49-147 years in prison. His story can be found in the J:D Archives -- Volume 2 Issue 2.)
Fingerprint evidence no longer sticks
By Alana Merritt Mahaffey, JD Staff
It seems that the old saying that no two fingerprints are alike may soon be categorized as not fact but as popular myth.
For over a century experts and average folks alike claimed that no two humans share the same fingerprint. While no more than a theory, this statement has evolved into a staple tool of forensic evidence, and is often used to link accused men and women to their alleged crimes. But its legendary infallibility as a tool to determine guilt and innocence is coming under fire. What is common knowledge, some argue, is not necessarily scientific fact.
Using present-day definitions and standards, it's completely unscientific to assert that no two people have exactly the same fingerprints. More to the point, because human fingerprints share so many pattern similarities, it's entirely possible that experts could, at times, misidentify fingerprints or identify the prints of two different people as having originated from one human. This is not just a theoretical possibility; it's now a matter of record.
Richard Jackson of Pennsylvania was given life for murder in 1998. Fingerprint evidence sealed the case against him until, in 2000, those who prosecuted Jackson admitted to error in the fingerprint matches entered as evidence. Jackson's defense at the time of his trial: a bad fingerprint match. In Scotland, another murder trial was derailed when it was discovered that three prints had been misidentified: those of the victim, the accused, and a police officer who was never present at the scene.
Fingerprint evidence is subject to the fallibility of the examiner, and as long as human error is a factor, the misidentification of prints is a possibility that should not be underestimated, especially in a country still reliant upon the death penalty as a form of punishment.
In January of 2002, The Legal Intelligencer reported that federal judge Louis H. Pollak ruled for the first time, that fingerprint experts cannot tell juries that two fingerprints are a match because the science they rely on does not meet the U.S. Supreme Court's Daubert test. The report notes that the judge did not ignore fingerprint evidence, but clarified that the government should take notice of the fact that fingerprints are both unique and permanent.
According to The Legal Intelligencer, Judge Pollak posed two questions:
1) Whether each individual has a unique set of fingerprints and, if so, whether these unique fingerprints are permanent.
2) Whether latent prints -- fragments of fingerprints "lifted" from a surface touched by an unidentified person -- can accurately be matched to "rolled" prints -- complete fingerprints that are obtained from an identified person through established fingerprinting procedures.
Experts with ties to the forensic community do not seem surprised by Pollak's statement; in fact, experts with varying opinions on the issue have anticipated a conflict with fingerprint evidence for several years, especially as DNA evidence has gathered steam and notoriety as the newer, and infallible forensic link between victim and accused.
Conservative US Circuit Court Judges Back Post-Conviction DNA Testing
Edited by Barbara Jean McAtlin, Justice: Denied Staff
In March 2002, two conservative US judges issued opinions in a Fairfax County, Virginia, rape case that approved giving prisoners access to post-conviction DNA testing to help them try to prove their innocence.
Fourth Circuit Court of Appeals Judge J. Michael Luttig, was the first federal appeals judge to write that prisoners have a constitutional right to test evidence from their cases if they claim the testing could help them prove their innocence.
The chief judge of the 4th Circuit Court, J. Harvie Wilkinson III, wrote that Virginia prisoner James Harvey should receive DNA testing, but he also wrote that the DNA debate is better handled by legislatures than by the federal courts.
President George W. Bush has mentioned both Luttig and Wilkinson as possible choices for the US Supreme Court if any of the Court's current justices step down. Their opinions are representative of the surprising impact that DNA testing has had on the legal community in the past few years.
More than 100 prisoners have been exonerated by DNA testing. Of these, eleven had been sentenced to death. These cases have revealed the types of mistakes that can happen at criminal trials and have motivated Congress and dozens of states to make DNA testing more widely available.
Virginia, Maryland, and the District of Columbia, have newly passed laws that give prisoners access to DNA testing. However, even with these new laws, Virginia prisoners still face an uphill legal battle before the tests are actually granted.
Some prosecutors have claimed that easy access to DNA testing by convicted prisoners would be fraught with frivolous requests that would cause serious backlogs in the court system and in the country's few DNA qualified laboratories, and slow the work on pending criminal cases. Joshua Marquis, a prosecutor in Oregon and a board member of the National District Attorneys Association, said that prisoners would abuse the new rules on DNA testing. He said, "We need a law on DNA testing...but it's dangerous when the courts say, 'This is really cool, and therefore we're going to raise it to a constitutional right.' "
The judge's opinions came during an unusual reconsideration of Harvey's request for DNA testing. A previous request was rejected by a three-judge panel in January. Although the 4th Circuit Court rejected a rehearing of the Harvey case, Luttig and Wilkinson wrote opinions on it anyway. Because the court did not grant a rehearing, Luttig's and Willkinson's opinions are not binding, but they provide powerful hints on how these judges might rule if a case like Harvey's comes before them in the future.
"Our system of justice...is capable of producing erroneous determinations of both guilt and innocence," Luttig wrote in his opinion. "A right of access to evidence for tests which . . . could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required, I believe, as a matter of basic fairness."
In his opinion, Wilkinson wrote, "There is no doubt that Harvey should receive the biological evidence in this case for DNA testing using technology that was unavailable at the time his Virginia conviction became final."
James Harvey is serving a 40-year prison sentence for a 1989 sexual assault he swears he did not commit. His case gained national attention in 2001 when a US District judge in Alexandria, Virginia, became the first judge in the country to rule that prisoners had a constitutional right to DNA testing. Using the new Virginia law, a Fairfax County judge granted Harvey the testing in February 2002.
Fairfax Commonwealth's Attorney Robert F. Horan Jr., who argued against DNA testing for Harvey (as well as a number of other prisoners who have asked for the testing) in the federal and state courts, said he still opposes the testing because the other man convicted in the crime said that Harvey took part in it and that a negative DNA test would not necessarily exonerate him.
Harvey's attorney, Peter Neufeld, said the opinions of the judges "point out that even the most conservative jurists in the country realize that DNA is different."
Historical Times For The Death Penalty
Written by Sheila Howard
Edited by William Kreuter, JD Special StaffSince the reenactment of the death penalty over 30 years ago, few cases have promised national change. On a small scale, mitigating factors, constitutionality of the death penalty, and judicial processes have been argued. These have incited change on a state-by-state basis.
Executions of the mentally retarded were upheld in 1989, in a five-to-four decision, when the Supreme Court ruled that "there is insufficient evidence of a national consensus". This lack of consensus therefore did not violate any "evolving standards of decency", and could not be deemed inhumane.
On June 20, 2002, the Supreme Court reversed itself and ruled that executing mentally retarded individuals is unconstitutional. The six-to-three ruling is contained in the opinion Atkins v. Virginia. Atkins was convicted of shooting an enlisted man for beer money and is reported to have an IQ of 59.
In 1989, only two states prohibited executions of the mentally retarded. In 2002, eighteen of the 38 states still allowing capital punishment prohibited executions of mentally retarded.
''It is not so much the number of these states that is significant, but the consistency of the direction of the change,'' Justice John Paul Stevens wrote for the majority. The root of the case was in the Eighth Amendment's protection against "cruel and unusual punishments" and the interpretation of the definition.
"This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty," Justice Stevens further wrote.
"Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with a level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants," wrote Justice Stevens in the opinion of the court.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented. Their opinions stated that the majority went far beyond factors of state laws, relied too heavily on opinion polls, and gave weight to views of national and international observers.
The twenty states that currently allow these executions are affected by this ruling. Statistics are not available indicating the number of mentally retarded on death row in various states. The term "mentally retarded" was not defined other than generally. Nationally, IQ's below 70 are considered mentally retarded. On a state-by-state basis, however, some states define this as IQs below 50, and some states do not give an IQ equivalent at all. Eventually this ruling may bleed over into all 38 states necessitating a national guideline.
An IQ determination is made by taking the "mental age" or age of "general knowledge" and dividing it by the chronological age of the person taking the test. This decimal is then multiplied by 100 to obtain a general number. An eighteen-year-old with an IQ of 59 would therefore have a mental age or have the general knowledge of an average ten year old. The state of Virginia maintains that Atkins is not mentally retarded and will appeal the ruling.
"Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability" is the only defining statement of the mentally retarded. Not surprisingly, most professionals would also use these same terms in describing a person that is mentally ill. Executing the mentally ill is still constitutional and episodes of hallucinations or paranoid delusions are not a defense in the courts.
When President Bush was a candidate in 2000, he claimed to oppose executing the mentally retarded, even though he thwarted efforts to prohibit the practice and he approved the executions of several retarded prisoners. Rick Perry, the present governor of Texas, vetoed a bill that the legislature passed to ban such executions.
On June 24, 2002 in Ring v. Arizona, the Supreme Court ruled that juries, not judges, must decide if defendants will be sentenced to death. The seven-to-two ruling immediately affects death sentences in five states and could affect nine states altogether. Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist dissented.
Arizona's, Idaho's, and Montana's death penalty laws provide that the trial judge has sole sentencing discretion in deciding a sentence. Colorado and Nebraska have a three-judge panel to decide capital punishment cases. In these five states, 168 inmates are reported to be affected by this ruling.
On July 1, 2002 Indiana's death penalty laws were changed to reflect that a jury's unanimous vote for life or death was binding in the sentencing phase.
Alabama's, Delaware's, Florida's, and (prior to July 1, 2002) Indiana's death penalty laws allow the judge to make sentencing decision after the jury recommendation, but the judge is not bound by this recommendation. In these four states, numbers are not available for inmates sentenced to death against jury recommendations. It is also unclear if this will affect only cases that involved unanimous votes for life in prison by the jury, then sentenced to death by the judge. Death row cases which involved majority votes for life in prison by the jury may not be affected at all.
On July 1, 2002, Judge Rakoff, a federal district court judge in New York, declared the federal death penalty unconstitutional. The reasons given were that the death penalty "deprives innocent people of a significant opportunity to prove their innocence" and that it "creates an undue risk of executing innocent people." The due process guaranteed by the Fifth Amendment to the Constitution is thereby violated.
The decision will be appealed. If the case eventually reaches the Supreme Court, the federal death penalty could be thrown out nationwide.
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