ARBITRARINESS: Different Outcomes in Similar Murder Cases in Tennessee

Gaile Owens (pictured) and Mary Winkler are two women who committed similar crimes under similar circumstances in Tennessee. Both women suffered from abuse from the spouses they killed, and both were examined by the same psychologist, twenty years apart.  The psychologist said both women suffered from battered woman's syndrome. Mary Winkler confronted her husband with a shotgun and shot him in the back in 2006. Gaile Owens hired a stranger to kill her husband.  Winkler was indicted for first-degree murder, convicted of voluntary manslaughter and served about two months in a mental health facility. She is now free and has custody of her children. Owens is on death row, awaiting execution by lethal injection.

According to an article by John Seigenthaler in the Tennessean, "The dramatic difference in the sentences received by Winkler and Owens relates directly to the manner in which the two cases were tried, how their separate teams of lawyers handled their cases and how two different judges dealt with their 'battered woman' defenses."  Winkler testified on her own behalf regarding the abuse she suffered, while Owens did not take the stand in order to protect her children from hearing the details of her abuse. Winkler was represented by experienced criminal lawyers, whose expenses were paid by her friends. Owens, on the other hand, had trouble finding legal representation. Her first lawyer withdrew from the case because she could not pay him. Perhaps the starkest difference between the two cases were the women's pleas. Winkler pled not guilty on the basis that she was a battered wife. Owens accepted the prosecutor's plea deal in return for a life sentence, but the prosecutor subsequently refused to accept the agreement when Owens's co-defendant would not accept the same plea. They were tried and sentenced to death together.

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Legal Scholar Calls Withdrawal of Model Penal Code a "Quiet Blockbuster"

Franklin E. Zimring is a distinguished professor of law and scholar at the Berkeley School of Law who has followed the development of the modern death penalty over many decades.  Writing recently in the National Law Journal, Prof. Zimring said the recent action by the American Law Institute to withdraw the death penalty provisions  from its Model Penal Code deprives the punishment of any legal legitimacy.  "[T]he institute has pulled the intellectual rug out from under the current system of deciding between life and death," he wrote. Recalling that when the Supreme Court stopped the death penalty in Furman v. Georgia in 1972, he noted many states turned to the Model Penal Code to fashion new death penalty laws that the Court would accept.  But that model has now been discredited.  "Now that the creators of the modern system of death penalty sentencing have disowned that system, there is no support for distinguishing the current death penalty lottery from the lawless system that Furman condemned. The apparatus that the Supreme Court rushed to embrace in 1976 has been exposed as a conspicuous failure."

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ARTICLES: "Selective Empathy" at Issue in Recent Supreme Court Opinion

Linda Greenhouse, former Supreme Court writer for the New York Times, recently wrote about the reversal of a death sentence by the U. S. Supreme Court. The Court overturned George Porter Jr.'s death sentence because of the inadequate representation he received and the powerful mitigating evidence in Mr. Porter's life that his attorney failed to investigate and present to the jury considering his client's life.  The Court's opinion noted, "Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did." Ms. Greenhouse's article contrasted this ruling with one handed down last month in the case of Robert J. Van Hook, who also claimed inadequate counsel. In his case, the Court overtuned a federal appeals court's grant of relief, concluding that Van Hook's lawyer made "professionally reasonable" decisions regarding his case. Van Hook was also a military veteran, and like Porter, was also a product of a violent and abusive childhood.

Greenwood writes, "Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were - indeed, how common such childhoods were among the hundreds of death-row inmates… It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate. I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed…on one of that number."  Read the full article below.

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Subject of Famous Supreme Court Decision Has Made a New Life

James Tyrone Woodson's death sentence was overturned by the U.S. Supreme Court in 1976 because the jury had not been allowed to consider any mitigating factors in his life or about his peripheral role in the crime.  The Court not only rejected Woodson's death sentence, but held that a mandatory death penalty system was unconstitutional.  Woodson had been convicted in 1974 of first-degree murder, which was automatically punishable by the death penalty under North Carolina law. Woodson had been in a car during the robbery and murder, and he maintained that he was threatened to assist with the robbery.  Woodson and 120  other death row inmates' lives were spared because of the Supreme Court ruling.  He eventually became eligible for parole and was released in 1993.  Since his release, Woodson has led a crime-free life. He used to be the kitchen manager at the Raleigh Rescue Mission. He now has a job in Raleigh and preaches at Wake Correctional Center.  "You have to want to change. Nobody can make you change," he said recently about his work helping others. He continued, "There's a choice in the matter in life itself.  Do you want to live? Do you want to be helpful to another individual because you've been helped?"

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Supreme Court Decides One Capital Case and Agrees to Hear Another

On November 16, the United States Supreme Court accepted for review and handed down a per curiam decision in Wong v. Belmontes (No. 08-1263). The Court reinstated Fernando Belmontes' death sentence and overturned the decision of the Ninth Circuit granting relief because of ineffectiveness of counsel. Belmontes was sentenced to death for murdering a woman during a robbery in 1981 in California. The appeals court ruled in 2008 that Belmontes' lawyer had represented him incompetently by neglecting to introduce evidence of family strife and depression that would have likely led to a different sentence. The Supreme Court assumed that the attorney should have presented more evidence but concluded it would not have made any difference in sentencing.  Justice Stevens issued a concurring opinion stating that he believed the Supreme Court had erred in a previous consideration of this same case.

On the same day, the Court agreed to hear Magwood v. Culliver (No. 09-158).  Billy Joe Magwood received a death sentence for killing a sheriff in 1979 in Alabama.  At the time, Alabama law required two conditions before the state could sentence a defendant to death, only one of which was satisfied by Magwood's crime.  Magwood's death sentence was overturned on other grounds in 1985, and he was resentenced to death the next year.  However, it was not until 1997 that Magwood's lawyers challenged whether his crime was death-eligible under Alabama law.  Alabama claims Magwood took too long to raise this argument and his appeal is barred by the Anti-terrorism and Effective Death Penalty Act, which imposes strict limits on successive federal habeas corpus petitions. The Eleventh Circuit agreed.  Magwood claims that he is bringing his claim under his new death sentence and therefore is not barred by AEDPA.

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Leading Law Group Withdraws Model Death Penalty Laws Because System is Unfixable

The Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code.  The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated.  Section §210.6  of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice.  This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

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Court Pressure in Arizona Leads to Settlements in Death Cases

A growing backlog of death penalty cases and delays in starting trials in Arizona’s Maricopa County has forced Superior Court judges to apply pressure on both sides by refusing to postpone trial dates and demanding that attorneys discuss settlements. The backlog came as a result of County Attorney Andrew Thomas’s aggressive pursuit of death sentences in more than 120 cases since taking office in 2005. The number of death penalty defendants grew faster than the courts could handle them. Over 100 death penalty defendants are still awaiting trial in Maricopa County, most of whom are beyond the 18-month time period in which they are supposed to be tried.  “I think firm trial dates settle cases,” said Presiding Criminal Judge Gary Donahoe.  The pressure is apparently working. This year, Thomas has allowed 27 defendants who faced the death penalty to plead to life sentences or less – nearly twice as many as last year, and eight times as many as in the year Thomas first took office. There is a schedule to try to settle more than 20 cases before the end of 2009. Thomas has also filed fewer notices of intent to seek the death penalty.

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NEW VOICES: Judge Says Death Penalty "too fraught with variables to survive"

Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“

Regarding Ohio's lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn't cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ Read the entire article below.

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OPINION: Florida’s Death Penalty System Still ‘Fraught with Problems’

A recent op-ed in the Florida Times-Union pointed to continuing problems in Florida’s death penalty system despite prior recommendations for change in an American Bar Association report three years ago. The article was written by Raoul Cantero III, a former Florida Supreme Court justice appointed by Gov. Jeb Bush, and Mark Schlakman, a senior program director for Florida State University's Center for the Advancement of Human Rights.  The authors state that little has been done by either the state government or the Florida Bar Association in response to the ABA's findings. The ABA report addressed the often abysmal legal representation of defendants in post-conviction proceedings, socioeconomic and geographic bias in seeking the death penalty versus a life sentence, and lack of fairness and accuracy in the system. The authors note that these problems remain, but there is a chance that new political leaders could still bring about change: "The challenge for those who hold and aspire to elected office is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems.  Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive."

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STUDIES: Errors by Texas Medical Examiners Led to Wrongful Convictions

A recent investigaton by the Fort Worth Star-Telegram uncovered a series of mistakes by medical examiners in Texas. “Medical examiners have goofed up eye color and gender. They’ve made mistakes on the locations of scars or tattoos, described gallbladders and appendixes that had long since been removed – even confused one body for another,” noted the story.  Webb County Chief Medical Examiner Corinne Stern was criticized for an autopsy she performed on an infant while she was working in Alabama. Her report indicated that the infant was suffocated, but other experts concluded “her finding was based on junk science and that the [baby] was stillborn.”  Following the experts' report, the capital murder charge against the baby’s mother was dropped.

In 2007, former Travis County medical examiner Roberto Bayardo recanted his original testimony that helped convict Austin baby-sitter Cathy Lynn Henderson of capital murder and placed her on death row for the death of a baby. Twelve years earlier, Dr. Bayardo had testified that the baby’s cause of death was from receiving intentional blows. His new testimony said it was unclear what had happened and Henderson may have accidentally dropped the child.  "The work of the medical examiner's office is just so slipshod," said Tommy Turner, the former special prosecutor who put a Lubbock medical examiner behind bars for falsifying autopsies.


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