Kentucky Legislature Conducts Hearing on the Commonwealth's Death Penalty
A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.
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Death-Penalty Juror Describes “Anguish” of Imposing a Death Sentence
Lindy Isonhood (click to enlarge picture) served on the Mississippi jury that sentenced Bobby Wilcher to death in 1994. In a commentary published on Medium, she writes that the decision to condemn Wilcher "continue[s] to haunt me today." Isonhood—whose experience as a death-penalty juror is the subject of a new documentary film, Lindy Lou, Juror Number 2—explains how little she and her fellow jurors knew about the death-penalty system when they were tasked with determining Wilcher's fate. They were unaware of the rarity of death sentences, the lack of adequate counsel, and changing public attitudes toward capital punishment. She describes feeling "guilt and complicity" for her role in Wilcher's execution. "Judges, lawyers, prison guards, families of the victims and families of the condemned — along with ordinary jurors like myself — are swept into a world where judgments of death are handed down, but everyone else is expected to emerge untouched," she wrote. The one-hour film, which will premiere on PBS on July 16, 2018, follows Isonhood's journey to visit other jurors from the case and discuss their experiences. Isonhood met with Wilcher before his execution, and said, "I saw him as a fellow human being, flawed but caring, even towards me." She concludes, "If I was called to serve on Bobby Wilcher’s jury today, I could not sentence him to death. I say this not because of what I learned about him before his execution, but because of what handing down a death sentence can do to people like me. I no longer feel as guilty about my decision in Bobby’s case, but I wish I could have foreseen how it would affect me and my loved ones for the rest of my life."
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Retired Warden, Former Judge and Prosecutor Urge Ohio to Grant Clemency to Raymond Tibbetts
The Ohio Parole Board held a hearing on June 14, 2018 to consider clemency for death-row prisoner Raymond Tibbetts, whose February 13 execution was halted by Governor John Kasich to consider a juror's request that Tibbets be spared. Ross Geiger, one of the twelve jurors who sentenced Tibbetts to death in 1997, wrote to Governor Kasich on January 30 expressing “deep concerns” about a “very flawed” trial and saying he “would not have recommended the death penalty” had the jury been provided complete information about Tibbetts’ upbringing. Tibbetts’ clemency application has been buoyed by the support of two criminal justice experts, Judge James A. Brogan (pictured), a former prosecutor and past chief justice of the Ohio Courts of Appeals Judges Association who chaired the Ohio Supreme Court's Joint Task Force to Review the Administration of Ohio’s Death Penalty, and George D. Alexander, a former Ohio prison warden and prison chaplain. Geiger wrote that the jury had voted for death after the prosecution had led them to believe that Tibbetts and his siblings had lived normal lives and his siblings ”had turned out fine.” He later learned that Tibbetts’ trial lawyer had failed to present evidence that Tibbetts had been abandoned at age 2, then abused and malnourished in foster care, and that “of Mr. Tibbetts’ four siblings, one committed suicide, one also spent time in prison, one is essentially homeless and unemployed, and only his sister is now doing well, despite having had a very turbulent younger life.” In a guest column in the Columbus Dispatch, Judge Brogan lauded Governor John Kasich’s decision in February to grant Tibbetts a reprieve so that Geiger could present his case to spare Tibbetts to the parole board. Brogan noted that the vote of just one juror is enough to prevent the imposition of a death sentence. “Fundamental flaws in the trial process deprived the jury of key facts that would have prevented this juror from voting in favor of death,” he wrote. “These truly extraordinary circumstances cry out for a clemency recommendation rather than an execution.” Alexander, the former prison warden and chaplain, added that Tibbetts has shown remarkable rehabilitation during his time in prison. “By all accounts, by the grace of God, Tibbetts has experienced a radical transformation,” Alexander wrote in a commentary published in the Akron Beacon-Journal. “He is no longer the troubled criminal, addicted to drugs and alcohol, as he was when he entered death row 20 years ago. He is remorseful, reflective and reformed.” The parole board will make a recommendation for or against clemency, but the ultimate decision rests with Governor Kasich. [UPDATE: On June 22, the Ohio parole board recommended that Governor Kasich deny clemency to Mr. Tibbetts.]
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Georgia Supreme Court Hears First Death-Penalty Appeal in Two Years Amidst Sharp Decline in Death Sentences
In the midst of a sharp decline in death sentences in the state, the Georgia Supreme Court on June 4 heard a direct appeal in a capital case for the first time in two years. In March 2018, Georgia reached the four-year mark since it had last imposed a death sentence, a dramatic change for a state that once handed down 15 death sentences in a single year. The decline in Georgia's death penalty exemplifies broader national death-penalty trends. In 1987, when Georgia handed down those 15 death sentences, 288 people were sentenced to death across the country. Thirty years later, in 2017, Georgia was completing its third consecutive calendar year with no death sentences, and the national total was just 39. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, credits the public's preference for life without parole (LWOP) sentences, saying the availability of LWOP has made a "huge difference." "[W]hen you sit down with victims’ families and discuss the process of a death-penalty case with all the pretrial hearings, then the years of appeals that follow, I have found that families like the finality of life without parole. It lets them get on with their lives," he said. Other prosecutors have found that the reluctance of juries to impose death sentences has made them less likely to seek death. Gwinnett County District Attorney Danny Porter called it "a self-fulfilling prophesy," noting, "As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort." The Georgia capital defender office's early intervention program has also reduced the number of death sentences by presenting prosecutors with reasons to decapitalize a case and reaching plea deals before a trial begins. Jerry Word, who leads that office, said, "The average time to resolve a case in early intervention has been less than eight months. The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county." Although prosecutors are seeking and juries imposing fewer and fewer death sentences, Georgia has continued to carry out controversial executions of defendants who likely would not be sentenced to death today. These include the December 2015 and March 2018 executions of Brian Keith Terrell and Carlton Gary, despite evidence that they may have been innocent; the May 2018 execution of Robert Earl Butts, Jr., although no Georgia jury has sentenced any defendant to death in the past decade in a case like his that involved a single victim and only one aggravating circumstance; executions of several men whose equally or more culpable co-defendants received lesser sentences; and prisoners who were intellectually disabled. The U.S. Supreme Court also has ruled against Georgia in three capital cases since 2016, Foster v. Chatman, involving race discrimination in jury selection; Tharpe v. Sellers, involving a juror who said he doubted whether black people had souls; and Wilson v. Sellers, which presented a procedural habeas corpus issue.
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Voters in Durham, North Carolina Expand Reach of National Reform Movement, Elect Anti-Death Penalty Prosecutor
Voters in North Carolina added their voices to an expanding movement for local criminal justice reform, ousting sheriffs who closely cooperated with federal authorities seeking to detain and deport immigrants and nominating reform candidates in local district attorney races. In Durham County, considered the state's most progressive county, voters in the Democratic primary opted for a candidate who advocated more rapid reform and said she would never pursue the death penalty, replacing incumbent Roger Echols with former defense attorney, Satana Deberry (pictured). With no Republican challenger in the Fall, the nomination virtually assures that Deberry will be elected district attorney. Durham County voters also unseated incumbent Sheriff Mike Andrews, who had honored constitutionally problematic immigration detainers, in favor of former Duke University police chief Clarence Birkhead, who vowed "to not cooperate with ICE." In an historic primary election in Mecklenburg County, Democratic voters ensured for the first time ever that African Americans would be elected to the offices of sheriff and district attorney in the county. Thirty-year Charlotte Mecklenburg Police Department veteran Garry McFadden said he would end incumbent sheriff Irwin Carmichael's controversial immigrant dentention policies and interim District Attorney Spencer Merriweather called his election "a beginning in the process of building trust in our criminal justice system." Neither of the candidates face opposition in the general election. During the Durham district attorney's campaign, Echols and Deberry both said they would work to reform policies that have contributed to over-incarceration, but Deberry challenged the pace at which Echols pursued reform and called for a "culture change" in the DA's office. The candidates' views on capital punishment typified their different approaches to reform. In responses to a candidate questionnaire from the Durham's People's Alliance Political Action Committee, Echols said he was "not a proponent of the death penalty" and favored its abolition, but "recognized[d] that it is allowable under the law" and should be considered "at most ... [on] rare occasions." By contrast, Deberry's questionnaire response was unequivocal: "I am morally, ethically, theologically, and in all other ways opposed to the death penalty [and] ... as District Attorney, I would not seek the death penalty in any case in Durham County." Deberry wrote that capital punishment "is irrevocably flawed and does not provide justice to victims nor society. I believe it suffers from racial and socioeconomic bias and there is no way to ensure that it is being ethically applied." She called the death penalty "a human rights violation" and said it "should be abolished." Deberry is one of a growing number of prosecutors, such as Denver's Beth McCann and Philadelphia's Larry Krasner, who have announced they will not use the death penalty. In another closely watched local election that is considered a bell-weather for the strength of reform efforts, San Diego district attorney challenger Geneviéve Jones-Wright recently committed to exercise her prosecutorial discretion to decline to seek the death penalty. "Although the death penalty is still legal in California, it is not mandatory that a District Attorney imposes it," she responded to an ACLU-sponsored California District Attorney candidate questionnaire. "The death penalty is discriminatory, costly, and ineffective as a deterrent. I am morally opposed to it," Jones-Wright said. Jones-Wright, whose campaign is supported by the progressive REAL Justice PAC and by philanthropist George Soros' California Justice & Public Safety PAC, is attempting to unseat incumbent interim DA Summer Stephan, whose campaign is backed by a PAC sponsored by the California deputy district attorney’s association. Stephan did not respond to the questionnaire.
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Powerful New Documentaries Explore Death-Penalty Issues
Three powerful new documentaries that explore the modern death penalty in the United States are set to premiere this April. Oscar-winning actress Viola Davis and Julius Tennon are executive producers of The Last Defense, a new documentary series premiering for the first time at the 2018 Tribeca Film Festival on April 27. The seven-episode documentary series exposes flaws in the U.S. justice system through the personal narratives of death row prisoners Darlie Routier and Julius Jones, both whom maintain their innocence, and premieres June 12 on ABC. On April 30, PBS will air the television premiere of Jamie Meltzer's documentary True Conviction, which follows the detective agency started by Christopher Scott, the late Johnnie Lindsey, and Steven Phill—three wrongly convicted Dallas men who were exonerated after spending a combined 60 years in prison—as they work to attempt to free death-sentenced Max Soffar and other wrongly convicted prisoners. Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project have hailed the film as "unprecedented" in its approach, "focusing on the experiences of a group of exonerees who are themselves learning to investigate" and "highlight[ing] the challenges and roadblocks of investigating and proving another man’s innocence." The film premiered at the 2017 Tribeca Film Festival and was awarded a Special Jury Mention in the Best Documentary Category. On April 11, the American University School of Communications premiered excerpts of another documentary film, In the Executioner's Shadow, produced by AU professors Maggie Burnette Stogner and Richard Stack. That documentary weaves the intersecting stories of Vicki and Syl Scheiber, whose daughter was murdered, Boston Marathon bombing survivor Karen Brassard, and former Virginia state executioner Jerry Givens, who had carried out 62 executions, as they grapple with moral and personal issues arising from their involvement in capital punishment. In a panel discussion moderated by the producers, Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, joined the film's protagonists in discussing those issues. Stack is a former public defender and author of two books on the death penalty Dead Wrong: Violence, Vengeance, and the Victims of Capital Punishment and Grave Injustice: Unearthing Wrongful Executions. He said he hopes the film will spark dialogue on the complex subject. "We've discovered through our various interviews that one side talks past the other. It's a mutual predicament. And we're trying to get people to talk to each other," Stack said. Following a screening of the first hour of the Julius Jones case in The Last Defense, the producers will lead a panel discussion with death-penalty lawyer Dale Baich.
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NEW VOICES: Law Enforcement Officials in Washington, Texas Call for End of Their States’ Death Penalties
Drawing on their experience in the criminal justice system, elected law enforcement officials in Washington and Texas have urged repeal of their states' death-penalty laws. In Washington, King County (Seattle) prosecutor Dan Satterberg (pictured, left), a Republican, testified January 22 before the Senate Law and Justice Committee in favor of a bipartisan legislative proposal to repeal Washington's capital-punishment statute. Telling the Texas Tribune “[w]e’re killing the wrong people,” former Dallas County sheriff Lupe Valdez (pictured, right), currently a candidate for the Democratic Party nomination for governor of Texas, announced her opposition to Texas's death penalty. Satterberg's testimony came on the heels of an op-ed he wrote in The Seattle Times in support of SB6052, a bill that would prospectively abolish capital punishment. Satterberg, who has worked in the King County prosecutor's office for 27 years and witnessed Washington's last execution in 2010, wrote: "It is my duty to report that the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims." Sitting alongside Democratic Attorney General Bob Ferguson, Satterberg told the committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn't work. Our criminal justice system would be stronger without the death penalty.” The abolition bill was introduced by Republican state Sen. Maureen Walsh, with bipartisan co-sponsorship, at Ferguson's request. In a news release, Ferguson said: “The death penalty is expensive, unfair, disproportionate — and it doesn’t work. More than a third of all U.S. states have abolished the death penalty. Washington should join them.” The bill passed the committee by a 4-3 vote on January 25. In a Texas candidate's forum in Austin, Valdez—who served as sheriff from 2005 to 2017 before resigning to run for governor—referenced on-going concerns about wrongful capital convictions and wrongful executions. “Some of those [sentenced to death in Texas] have been exonerated," Valdez said. "We cannot continue being in a situation where we risk killing a person who is not guilty.” Since 1973, 13 people have been exonerated from death row in Texas, and questions have been raised about the guilt of several executed prisoners, including Carlos DeLuna, Cameron Willingham, and Robert Pruett. Valdez joined another leading Democratic contender for governor, businessman Andrew White, in opposing the death penalty. Incumbent Governor Greg Abbott, a former Texas attorney general, is a strong supporter of capital punishment.
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Bipartisan Effort to Abolish Death Penalty Gains Momentum in Washington
With the backing of the state's governor and attorney general, Democratic and Republican sponsors of a bill to repeal Washington's capital-punishment statute have expressed optimism that the state may abolish the death penalty in 2018. In 2017, Attorney General Bob Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling on the legislature to end the state's death penalty. Ferguson, who has said "[t]here is no role for capital punishment in a fair, equitable and humane justice system," is pressing legislators to take up the bill this year. Governor Jay Inslee featured the bill in his January 9, 2018 State of the State address, urging legislators to "leave a legacy that upholds the equal application of justice by passing a bill to end the death penalty in the state of Washington." The bill, now numbered SB 6052, has bipartisan backing: two of its sponsors in each house are Republicans. And Senator Jamie Pedersen (D-Seattle), the chair of the Senate Law and Justice Committee, to which the bill has been referred, said "[t]he stars may be aligning now for support of doing away with the death penalty." Both Republican sponsors in the Senate have questioned the value of the death penalty for murder victims' families and stressed that capital punishment runs counter to conservative values. Sen. Mark Miloscia (R-Milton) wrote in a recent op-ed, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." He said continuing with the death penalty is unjustifiable given its failure to contribute to public safety, its high cost, and the "ever-present risk of killing an innocent person." Sen. Maureen Walsh (R-Walla Walla) said, "The death penalty isn’t really accomplishing a wonderful relief to [victims'] families." The repeal bill was stalled in 2017 when Senator Mike Padden, the former judiciary committee chairman, refused to hold hearings on the bill. When Democrats gained control of the state senate after the November 2017 elections, Pederson replaced Padden, paving the way for committee action on the bill. “The votes are there,” Attorney General Ferguson said. “I’m reasonably optimistic that this could be the year.” Miloscia said he, too, is “highly optimistic .... I think this is something that people on both sides of the aisle want to get done.” Washington has a similar profile to other states that have recently abolished the death penalty. Its murder rate is significantly below the national average and, as with most of the states that have done away with capital punishment, it has a very low rate of murders of police officers. The high cost of the death penalty is also a factor for legislators. According to a 2015 Seattle University study, each death-penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. In an email to the Washington Newspaper Publishers Association, Senator Walsh said "taxpayers foot the multi-million dollar appeals process for the accused and we spend $50,000/year for incarceration. ... A life sentence with no chance of early release saves money and issues the ultimate punishment by denying the convicted their freedom and liberties for life.” Washington has not carried out an execution since 2010, and Governor Inslee—who imposed a moratorium on executions in February 2014—has said he will not allow executions to take place while he is in office.
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Idaho County Considers Leaving State Defense Fund As Way to Deter Capital Prosecutions
To deter future use of the death penalty in their county, the Blaine County, Idaho County Commissioners on January 2 voted to consider withdrawing from the state's Capital Crimes Defense Fund as a way to choke off state funding in capital prosecutions. “This is a way for our county to say we don’t support the death penalty, and that we don’t want the prosecutor seeking it in Blaine County,” said Commissioner Larry Schoen (pictured), who proposed the withdrawal. Two days later, however, the commissioners backtracked after learning that participation in the fund was a prerequisite for the county to be eligible to receive the services of the State Appellate Defender's office in a wide range of non-capital appeals. The commissioners had believed that, by requiring the county to absorb the entire cost of defending death penalty cases, pulling out of the fund would create a disincentive for local prosecutors to seek the death penalty. At a minimum, Schoen said, “the prosecutor would have to certainly be aware that [a capital prosecution] would be an enormous financial burden on the county.” Blaine County Prosecuting Attorney Jim Thomas, who has not sought the death penalty since assuming office in 2000, strongly opposed the proposal, saying that decisions to seek the death penalty should not be based on cost. “It’s probably the most important, weighty decision that I would make,” he said. “And to think that we would make it on the basis of finances, I think that’s probably what insulted me most, frankly.” After considering a letter from Thomas and reviewing the conditions of Blaine County's agreement with the appellate defender's office—under which the county would lose an estimated $22,000-$25,000 annually in state appellate assistance in non-capital felony cases if it withdrew from the Capital Crimes Defense Fund—the commissioners decided against withdrawing. “My underlying thoughts haven’t changed," Schoen said. “But at this point, there would likely be too many unintended consequences and negative implications involved with not participating.” As a result, he recommended that the county “continue participation in the Capital Crimes Defense Fund, though I hope we can pursue a legislative solution to decouple that from access to the state’s public defenders.” A 2014 study of death-penalty costs in Idaho by the Idaho Legislature’s Office of Performance Evaluations found that the State Appellate Public Defenders office spent 44 times more billable hours on the average death-penalty appeal than on cases in which a life sentence had been imposed. The study also concluded that, on average, capital trials took seven more months to reach a conclusion than non-capital cases. More than half of the 40 people sentenced to death in Idaho since 1977 have had their death sentences overturned on appeal and then received lesser sentences. In November, the commissioners in Ada County—the state’s largest county and the county that most aggressively seeks the death penalty—voted to leave the fund to reduce payments for capital defense services. The commissioners reconsidered that decision after realizing that withdrawal from the fund would make the county responsible for hundreds of thousands of dollars in appellate costs for non-capital cases.
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Murder Victims’ Family Members Speak of Moving Forward, Without the Death Penalty
Family members of murder victims share no single, uniform response to the death penalty, but two recent publications illustrate that a growing number of these families are now advocating against capital punishment. In From Death Into Life, a feature article in the January 8, 2018 print edition of the Jesuit magazine America, Lisa Murtha profiles the stories of how several prominent victim-advocates against the death penalty came to hold those views. And in a recently released compilation of essays, Not in Our Name, nine family members of murder victims share their stories of coping, grieving, and reconciliation in the face of losing a loved one to murder, and tell how their experiences transformed their views about capital punishment. “While each has endured the extreme pain of losing a loved one to murder, they all are staunchly opposed to what they say is more violence in the form of a state-sanctioned execution and a death penalty,” said Ron Steiner, leader of Oregonians for Alternatives to the Death Penalty, which released the essays in November. The death penalty is often characterized as providing justice and closure for family members of the victims. But, Murtha writes, "for many, the death penalty provides neither the closure nor the healing that legal and political systems oftentimes promise. Instead, a growing number of victims’ families are saying it inhibits that healing." Murtha reports on the different reasons offered by five different victims’ families who spoke out against the death penalty in 2016. "One learned how profoundly the murderer had changed in prison, another just wanted the appeals to stop and another discovered that the men originally convicted of the crime were actually innocent," she writes. Murtha also recounts the emotional journeys of Bob Curley, Marietta Jaeger Lane, and Bill Pelke, who are now vocal opponents of the death penalty. After his 10-year-old son Jeffrey was murdered, Curley launched a years-long crusade to reinstate capital punishment in Massachusetts, believing the death penalty might prevent something like this from happening [again].” He came to oppose the death penalty after seeing that the man he believed was less culpable for the death of his son received a harsher sentence and became convinced that "the system is just not fair" and could not be trusted to reach the right result in capital cases. Lane, a lifelong practicing Catholic, said she initially wanted to kill the man who abducted and murdered her 7-year old daughter, but she said, "I surrendered [and] did the only thing I could do, which was [give] God permission to change my heart.” Pelke's 78-year-old grandmother was robbed and murdered by group of teenage girls, and 15-year-old Paula Cooper was sentenced to death. Pelke was convinced his grandmother "would have had love and compassion for Paula Cooper and her family and that she wanted me to have that same sort of love and compassion. I learned the most important lesson of my life .... I didn’t have to see somebody else die in order to bring healing from Nana’s death.”
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