JULY 5, 2010: USA: The Uneven Hand of Justice

JULY 5, 2010:

USA:

The Uneven Hand of Justice

There have been a number of articles over the past months on the racial bias of the death sentence and in jury selection. To be more accurate, the issue is one of disenfranchisement of Blacks from their legal right to sit on juries. This is a subject I was involved with in 1991 when I was a pro bono expert witness on precisely this issue. I am not going to recount the details only to say we lost in District Court but won in Appellate Court: 3-0. (Three-zip in an Appellate Court is the equivalent of a grand slam home run.) The Appellate Court agreed with our position that jurors were struck because of race.

Even though I have been thinking about this article since Virginia's Republican Governor Bob McDonnell declared April to be "Confederate History Month," it was Elena Kagan's confirmation hearings that crystallized the focus of this blog. Kagan was cross-examined by Senators Jeff Sessions (R-AL), Lindsey Graham (R-SC), and others who called Supreme Court Justice Thurgood Marshall an activist. Followed by Lindsey Graham asking her where "her people" spent Christmas? Kagan did say: "Chinese restaurants," allowing her to add still a third minority to the hearings. (In fairness, an apparently obscure concept in the Senate, Graham did not say "her people;" it was implied.) The New York Times commented on a study entitled "Illegal Racial Discrimination in Jury Selection" by the Equal Justice Initiative (EJI). The report discusses the ongoing discrimination of excluding Black jurors in the South to increase the probability of a death penalty verdict.

The game prosecutors play is simple. There is a strong rejection by Blacks of the death penalty. So Southern prosecutors know the likelihood of successfully seeking the death penalty depends on the exclusion of Black jurors who are part of the jury pool (i.e., voir dire). Because the prosecution has a finite number of challenges (i.e., exclusions), the prosecutor must have a pool of jurors that does not have a high number of Black jurors. It is this balance between challenges and the number of Blacks in the jury pool that dictates whether prosecutors will seek the death penalty. Depending on the demographics of a county, the pool of Black jurors can be so small that a prosecutor can remove all Blacks from serving on a jury for a particular case. The net result of this process is that the death penalty in the South varies by county. Just like real estate: The where matters.

While my own investigation convinced me that the prosecutor in this particular case had a long history of discriminating against Blacks sitting on juries, what concerns me is the huge divide between Black and White views on the death penalty. Is it any wonder that Blacks have a strong opposition to the death penalty? One hundred and thirty-five years after the Civil War, we have a Virginia Governor who wants to celebrate the Confederacy and US Senators questioning a Supreme Court nominee on her "dangerous" association with Justice Thurgood Marshall, one of the great forces in desegregation.

Common sense dictates when we have a reasonable, causal basis for an action, coupled with numerous supportive studies, we accept the fact that race is the single largest contributing factor to the death penalty, when the defendant is Black and the victim White. Yet, common sense seldom prevails.

(source: Gary Liberson, Huffington Post)

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GEORGIA:

Troy Davis case full of murky legal questions

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail.

Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial. Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."

The Supreme Court set the burden on Davis to "clearly establish" his innocence with evidence that wasn't available at his 1991 trial, when Davis was convicted of shooting MacPhail as the off-duty officer rushed to help a homeless man being attacked.

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles.

If Davis succeeds in proving his innocence, things get murkier.

Michael Mears, a John Marshall Law School professor who's defended numerous capital cases in Georgia, suspects Davis may be granted a new trial. That's what Davis' lawyers were seeking in 2007 when his latest round of appeals started.

But Stephen Bright, a Yale Law School lecturer and veteran death penalty attorney, argues a favorable ruling for Davis would likely result in the Supreme Court ordering Georgia authorities to free Davis. A 2nd trial, he says, would amount to double jeopardy.

"We're in totally uncharted waters," Bright said. "There would be arguments all over the ballpark on it."

A major factor in the judge's ruling will be whether he believes witnesses who say they lied at Davis' trial or caved under police pressure to point to Davis as the killer.

Mears said the credibility of Davis' witnesses will be his biggest hurdle.

"They start off in the hole being admitted perjurers," said Mears, a former head of the Georgia Indigent Defense Council. "They've admitted they lied under oath at one point. How much credibility does that give them now?"

Davis' lawyers are also counting on 2 witnesses who testified that Sylvester Coles, who was with Davis moments before the slaying, later told them he shot the officer. One says he witnessed Coles shoot MacPhail.

But the judge criticized Davis' attorneys for failing to subpoena Coles for the latest hearing. He denied being the shooter at Davis' trial.

Because Coles didn't get a chance to answer the new accusations in his courtroom, the judge said he may disregard any testimony against him as inadmissible hearsay.

Davis' lawyers failure to put Coles on the witness stand "may very well be fatal," said Donald E. Wilkes Jr., a University of Georgia law professor and expert on death penalty appeals.

"I've never heard of anybody in a post-conviction case committing such egregious, damaging blunders," Wilkes said.

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt.

The judge has asked lawyers to weigh in by Wednesday on 2 broader issues that could restrict his authority.

The judge's 1st question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?

Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled.

Appeals courts found that Davis received a fair trial. If he later proves he's innocent, would it be cruel and unusual punishment to execute him? Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."

Still, legal experts say they doubt the Supreme Court would have ordered a hearing for Davis if it thought the federal courts were powerless to take action.

The judge hasn't laid out what options he's considering in Davis' case, and hasn't given himself a deadline to rule. The Supreme Court has recessed until October, so the wait could be weeks if not months.

(source: Associated Press)

THANX to Dr. Rick Halperin and his Death Penalty News and Updates for BOTH of these current and crucial items!