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NEW VOICES: 30 FBI Agents Call for Pardon in VA Case with Death Penalty Implications

On November 10 in Richmond, Virginia, thirty former FBI agents held a press conference calling for the pardon of four sailors, known as the Norfolk Four, who were convicted of rape and murder. Their convictions were based mainly on their own confessions, which were apparently made out of fear that they might otherwise receive the death penalty. The FBI agents pointed out that DNA and forensic evidence now points to a prison inmate who has confessed as the sole perpetrator of the crimes. They asked Virginia Governor Tim Kaine to pardon the men. “After careful review of the evidence we have arrived at one unequivocal conclusion: The Norfolk Four are innocent,” said Jay Cochran, a former assistant director of the F.B.I. and former special agent who served at the bureau for 27 years. “We believe a tragic mistake has occurred in the case of these four Navy men, and we are calling on Governor Kaine to grant them immediate pardons.”

“We are not bleeding hearts, and we don’t take this type of public action lightly,” said Cochran. “However, we also believe that law enforcement has an obligation to protect the most innocent from wrongful conviction.” The agents joined a long list of notable people calling for a pardon, including 4 former Virginia attorneys general, 12 former state and federal judges and prosecutors, and a past president of the Virginia Bar Association.


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Georgia Execution Stayed to Allow a Parole Board Hearing

UPDATE: Parole Board Denied Clemency on Sept. 16 and Jack Alderman was executed.

On September 15, Fulton County Superior Court Judge Melvin Westmoreland granted a stay of execution for Jack Alderman in Georgia. Judge Westmoreland stayed the execution, scheduled for Sept. 16, until Alderman receives a “meaningful” meeting with the state’s Board of Pardons. The judge stated: “If the state’s going to impose the extreme penalty of death … due process of the law is never more important.” Alderman was sentenced to death in 1975 for the murder of his wife a year earlier.

The Board of Pardons had denied Alderman's request for a hearing, saying they had enough information on the case. The judge asked, “How hard, how difficult would it before the state takes someone’s life, as a matter of grace … for you to have this hearing?”


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Upcoming Arkansas Execution In Doubt Because of Lethal Injection Problems and Clemency Recommendation

A state judge in Arkansas has thrown further doubt on whether the upcoming execution of Frank Williams will be carried out on September 9 because the state did not follow proper procedures in adopting its lethal injection protocol.  Pulaski County Circuit Judge Timothy Fox barred the Arkansas Department of Correction from using the protocol in its execution of Frank Williams, Jr. because the new execution procedures should have been subject to public comment before implementation. Chief Deputy Attorney General Justin Allen commented, “The million-dollar question is: What does that do to the September execution date? That is still uncertain.” Judge Fox referred to the Arkansas Administrative Procedure Act in his ruling that the new protocols are subject to public scrutiny and input. Allen said Williams' execution will likely be delayed if the Arkansas Supreme Court doesn’t overturn the lower court's ruling.

Earlier in August, the Arkansas Parole Board recommended that Frank Williams' death sentence be commuted to life without parole. The Board had received petitions for clemency from 13 state, national, and international organizations and developmental disabilities experts which concluded that Mr. Williams suffers from mental retardation based on his sub-average adaptive functioning and the diagnosis of psychological experts. The requests for clemency emphasized the fact that executing a mentally retarded person is unconstitutional based on both Arkansas’ 1993 statutory ban and the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. Courts have not reviewed the evidence of Mr. Williams' mental retardation because neither his trial lawyer nor his post-conviction appeals attorney raised this issue. The appellate courts have concluded that Williams is now barred from proving his mental retardation because it was not presented earlier.

The recommendation for clemency now goes to Governor Mike Beebe, who will decide whether to accept the Board's recommendation or allow the execution to go forward. The judge’s ruling on lethal injection may also affect the September 9 execution date.
(Associated Press, “Judge’s ruling could delay Arkansas inmate’s execution,” August 29, 2008; R. Moritz, “Parole board recommends clemency for condemned killer,” Arkansas News Bureau, August 6, 2008). See Mental Retardation, Lethal Injection, and Clemency. (This is an update of an item posted earlier.)


 


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Executions Since Supreme Court's Upholding of Lethal Injection

On April 16, 2008, the U.S. Supreme Court upheld Kentucky's lethal injection process in Baze v. Rees, thereby opening the door to a resumption of executions which had been on hold since September 2007. Since then, there have been 18 executions:

  • 100% have been in the South
  • 33% have been in Texas
  • All but one have been by lethal injection.

Of the 18 defendants executed:

  • 8 were white
  • 8 were black
  • 2 were Hispanic.

Of the 25 victims in the underlying murders:

  • 13 were white
  • 9 were black
  • 2 were Hispanic
  • 1 was Asian.

During the same time period there have been:

  • 3 clemencies granted
  • 2 cases are pending relief (one stayed by Ala. Sup. Ct., one with a recommendation of clemency from the Pardons Board in Ark.).

As of August 9, 2008. See Executions and Clemency.


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Arkansas Parole Board Recommends Life Without Parole for Mentally Disabled Man

In a 4-3 vote, the Arkansas Parole Board recommended that Frank Williams' death sentence be commuted to life without parole. The Board had received petitions for clemency from 13 state, national, and international organizations and developmental disabilities experts which concluded that Mr. Williams suffers from mental retardation based on his sub-average adaptive functioning and the diagnosis of psychological experts. The requests for clemency emphasized the fact that executing a mentally retarded person is unconstitutional based on both Arkansas’ 1993 statutory ban and the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. Courts have not reviewed the evidence of Mr. Williams' mental retardation because neither his trial lawyer nor his post-conviction appeals attorney raised this issue. The appellate courts have concluded that Williams is now barred from proving his mental retardation because it was not presented earlier.

The recommendation for clemency now goes to Governor Mike Beebe, who will decide whether to accept the Board's recommendation or allow the execution to go forward as scheduled on September 9th.
(R. Moritz, “Parole board recommends clemency for condemned killer,” Arkansas News Bureau, August 6, 2008). See Mental Retardation and Clemency. (This is a revised version of an item posted earlier.)

 


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Mental Retardation Group Pleads for Clemency for Mentally Disabled Man in Arkansas

Arkansas’ leading advocacy organization for people with mental retardation, Arc Arkansas, delivered a letter to Governor Mike Beebe and the Arkansas Parole Board urging clemency for Frank Williams, Jr. because of his mental retardation. He is scheduled for execution on September 9 and the Arkansas Parole Board is holding a clemency hearing on his case on August 4. The letter notes that executing a mentally retarded person is unconstitutional based on both Arkansas’ 1993 statutory ban and the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia.

Williams was held back in school three times before dropping out in the 10th grade. Arc Arkansas’ Chief Operating Officer, Cynthia Stone, wrote, “It would be a great injustice and a violation of our own state laws to execute Frank Williams, Jr., who is a person with lifelong mental retardation.” She added, “The Parole Board should recommend and Governor Beebe should grant clemency for Mr. Williams in order to prevent this terrible injustice.” The letter further describes the circumstances of his sentence as tragic compounded by bad timing and woefully inadequate representation.
(A. Davis, “Group urges clemency for death-row inmate,” Arkansas Democrat Gazette, July 31, 2008). See Mental Retardation and Clemency.


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Oklahoma Governor Commutes Death Sentence at Juror's and Parole Board's Request

Oklahoma Governor Brad Henry commuted the death sentence of Kevin Young to life in prison without parole on July 24. Henry stated, "This was a very difficult decision and one that I did not take lightly." He explained that, "after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence." This is only the second time the Governor has granted clemency since taking office.

A week earlier Henry granted a 30-day stay of execution for Kevin Young who was scheduled to die on July 22. The Oklahoma Pardon and Parole Board recommended clemency for Young after hearing tape recorded statements from jurors stating that they hadn’t wanted to give Young the death sentence but didn’t receive clarification when they asked whether he would be eligible for parole if he was sentenced to life without parole. One juror explained, “We felt that the crime did not warrant the death penalty. We did not want this man on the street ever. Period. When we asked for clarification, we were told that we had all the information that we needed to make a decision. We’re not lawyers, and all we knew is what we saw on TV.”

While the jurors wanted to sentence Young to life without parole so he would not be let out of prison, the lack of information left them believing they had no choice but the death sentence. The same juror said he has frequently looked back on the decision and wished they had come to a different conclusion. When the opportunity arose to make a statement to the Pardon and Parole Board, he felt he had to speak out. “When the opportunity came up to try to right the wrong I took [it],” he said. The Board has only recommended clemency 4 times in the last 5 years. The governor stated he granted the stay because, “This is a life and death matter, and a deliberative review process cannot be completed by the scheduled execution date.” He added, “I take all clemency recommendations very seriously and I will do my best to render a fair and just decision.”
(M. McNutt, "Gov. commutes inmate's death sentence," Oklahoma News, July 24, 2008; see also J. Bisbee, "Clemency bid for Kevin Young brings 30-day execution stay---jurors requested clarification," Oklahoman, July 16, 2008).  See Life Without Parole and Clemency.


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Execution Stayed Because Jurors May Have Been Misinformed about Life Sentence

Oklahoma Governor Brad Henry granted a 30-day stay of execution for Kevin Young who was scheduled to die on July 22. The Oklahoma Pardon and Parole Board recommended clemency for Young a week earlier after hearing tape recorded statements from jurors stating that they hadn’t wanted to give Young the death sentence but didn’t receive clarification when they asked whether he would be eligible for parole if he was sentenced to life without parole. One juror explained, “We felt that the crime did not warrant the death penalty. We did not want this man on the street ever. Period. When we asked for clarification, we were told that we had all the information that we needed to make a decision. We’re not lawyers, and all we knew is what we saw on TV.”

While the jurors wanted to sentence Young to life without parole so he would not be let out of prison, the lack of information left them believing they had no choice but the death sentence. The same juror said he has frequently looked back on the decision and wished they had come to a different conclusion. When the opportunity arose to make a statement to the Pardon and Parole Board, he felt he had to speak out. “When the opportunity came up to try to right the wrong I took [it],” he said. The Board has only recommended clemency 4 times in the last 5 years and Governor Henry has only granted clemency once since taking office in 2003. He granted the stay because, “This is a life and death matter, and a deliberative review process cannot be completed by the scheduled execution date.” He added, “I take all clemency recommendations very seriously and I will do my best to render a fair and just decision.” The new tentative execution date for Young has been set for August 21.
(J. Bisbee, "Clemency bid for Kevin Young brings 30-day execution stay---jurors requested clarification," Oklahoman, July 16, 2008). See Life Without Parole and Clemency.

UPDATE: Governor commuted the execution on July 24, 2008.


 


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Supreme Court Agrees to Hear Two Death Penalty Cases

The U.S. Supreme Court agreed on June 24 to hear two death penalty cases, both from Tennessee. The first case, Cone v. Bell, No. 07-1114, focuses on whether federal courts can consider issues that state courts dismissed on state procedural grounds. The petitioner, Gary Cone, had claimed that his use of drugs mitigated his guilt in the underlying murder of which he was accused.   The prosecution at trial denied that there was any evidence of the defendant's drug use, and Cone was sentenced to death. It was shown later that the district attorney’s files contained evidence confirming Cone's extensive drug problem, and Cone maintains that such evidence should have been released to the defense in discovery. F.B.I. files also showed evidence of Cone’s drug use.  However, when Cone requested a new trial and tried to present this new evidence to the Tennessee courts on appeal, the courts ruled that he had made the claim of withheld evidence earlier and lost.  Hence, his present claim was dismissed as duplicative, rather than being reviewed on the basis of the new evidence he was presenting.

When the U.S. Court of Appeals for the Sixth Circuit was presented with Cone's claim through a habeas corpus petition, they denied it because the matter had been resolved in Tennessee under state procedural law.  When Cone requested a rehearing en banc by the Sixth Circuit, he was denied, but seven judges dissented.  Judge Gilbert Merritt, writing for the dissenters, said, "[W]e should not err again by failing to insure that the State’s prosecutorial misconduct in concealing exculpatory evidence is considered on the merits.” Cone had previously been granted relief by the Sixth Circuit on two other issues, but both of those rulings were overturned by the U.S.  Supreme Court, making this the third time that the High Court will review Cone’s case.

The second case, Harbison v. Bell, No. 07-8521, asks whether a federal law that provides lawyers to indigent state death row inmates for parts of their appeal guarantees them the continuation of that representation through the state clemency process.  The law, part of the Terrorist Death Penalty Enhancement Act of 2005, says that such lawyers are to represent their clients in "all available post-conviction process," including "proceedings for executive or other clemency."  Federal appeals courts have been divided over the interpretation of the law, with one side saying that the law applies only to federal clemency proceedings.
(A. Liptak, “Death Row Inmate’s Case Gets 3rd Hearing,” New York Times, June 24, 2008).  See Supreme Court and Clemency.  See also Scotus.blog for a discussion of these cases and links to briefs.


 


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ARTICLES:The Story of a Death Row Inmate Who Wanted to Die

In 1996, Illinois Governor Jim Edgar commuted the death sentence of Guin Garcia to life without parole, even though Garcia herself had stopped fighting for her life. Garcia would have been the first woman executed in the U.S. in twelve years. She had been convicted of killing the man who had physically abused her, but she had dropped her appeals because she said she was done “begging for her life.” Chicago Sun-Times reporter Carol Marin followed Garcia's case after the commutation and recently wrote about the changes in Garcia's life. Marin told the story of Garcia's early life: her mother's suicide, sexual abuse by her uncle, becoming an alcoholic and prostitute by age 16. Last month, Garcia received an associate degreee in liberal studies from Lake Land College at a graduation ceremony at the Dwight Correctional Center. Fellow graduates at the ceremony pointed to Garcia, now 49, as the reason they earned their GED’s, professional certificates, and furthered their education. They called her “Granny” and said she demanded they straighten out their life as she led through example.

The complete article appears below:

A commuted sentence, and a life reborn

By CAROL MARIN | Sun-Times columnist | [email protected]

Ten days ago, I took a trip I wouldn't have predicted. This is a story about a
near-execution, a graduation and a decision by former Gov. Jim Edgar that has
delivered unexpected consequences.

It's a story about rising up and reaching down.

In January 1996, Guin Garcia, an inmate on Death Row at Dwight Correctional
Center in Downstate Illinois, was on the verge of execution.

Months earlier, Garcia, a 36-year-old convicted double murderer, had dropped
her court appeals, said she was done "begging for her life" and put the wheels
in motion for her death by lethal injection. It would mark the first execution
of a woman in the U.S. in two decades. It became an international story.

Garcia's biography wasn't pretty.

At age 2, she saw her mother jump out a window and die.

Her father split. She was reared by grandparents and an uncle. The uncle began
raping her when she was 7, giving her alcohol to calm her and shut her up.

Family members confirm the grandmother knew but did nothing.

By 16, she was an alcoholic and a prostitute. By 17, she was married and
pregnant.

Her baby, Sara, was not yet 1 when she suffocated her with a plastic dry
cleaning bag rather than face the prospect of DCFS taking Sara away to live
with the grandmother and the pedophile uncle.

She confessed, went to prison for 10 years, married one of her tricks, an
older man named George Garcia, who once, according to Supreme Court records,
genitally mutilated her with a broken bottle.

Drunk one night, she shot and killed George.

Her sorrow over Sara is something Guin Garcia lives with every day. She is not
sorry about George.

Fourteen hours before her scheduled execution in 1996, Gov. Edgar, who had
signed off on the executions of four men, suddenly stopped the wheels from
turning on this one. For a Republican who supported the death penalty, it was
not an easy decision. Edgar commuted her sentence to natural life.

Last week, I went back to the prison at Dwight. With a 3.95 "A" average,
Garcia was graduating magna cum laude from Lake Land College.

Dressed in caps and gowns, marching to "Pomp and Circumstance," 57 other women
received GEDs and certificates in computer technology, commercial cooking, dog
training and business management.

Friends and family filled the prison gym. Small children were in their Sunday
best, waving to their mothers. There aren't many happy days in prison, said
Warden Mary Sigler. This was one.

As one of the inmates rose to claim her diploma, a young man in a back row
proudly cried out, "That's my Mom!"

Garcia was last to be called up, the only one that day to accept a college
degree, an associate in liberal studies.

You might be asking, what's the point? Why waste tax dollars on a lifer?
There's an answer.

It's what Pulitzer Prize-winning author Anna Quindlen calls "Rising up,
reaching down."

Graduates I talked to that day, including one who is 28 and has been locked up
since she was 15, told me the reason she earned her GED last year and got a
certificate in professional dog grooming this year was that Garcia, whom
younger inmates call "Granny," demanded that she straighten up and fly right.

Garcia's quest for education helped motivate hers.

That young woman -- a slight, pretty African American -- will get out in two
years better prepared to go forward because Guin Garcia, in life's depths,
somehow found it in herself to rise up and reach down.

Today, Garcia is 49, with no illusions about getting out. And yet, thanks to a
decision by a pro-death penalty governor to spare one life, new life has been
given.

Rise up. Reach down.

It can happen anywhere.

(C. Marin, ”A commuted sentence, and a life reborn,” Chicago Sun-Times, June 8, 2008). See Life Without Parole and Clemency.


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