When Lawyers Misspeak

Last September David Hoke and Debra Graves were brought before the North Carolina Bar to answer to their performance (or lack of it) as prosecutors in the initial trial of Alan Gell. The facts surrounding the Gell case have become almost self evident because of the extensive coverage from the Raleigh News and Observer. For those that missed it, evidence was withheld in the first Gell trial and as a result of that and new interpretations of physical (forensic) evidence by medical examiners, the case was subsequently retried and resulted in an eventual acquittal.

Today’s “digression” being offered up by N&O staff reporters (Joseph Neff) is related to some statements made by the state’s senior prosecutor, Jim Coman during a hearing where the NC Bar Association considered what punishment was appropriate for prosecutors Graves and Hoke. At issue is whether or not state prosecutors are intentionally withholding evidence that should be presented to defense attorneys when appeals are considered or prior to trial. It should be noted that recent legislation has been passed (that was inspired by the case in question) that now requires full disclosure of evidence against the accused prior to trial.

Anyone familiar with the Gell case already understands that established disclosure procedures allowed defense attorneys to uncover the questionable statements that were withheld at first trial. Eventually this information was used to impeach or undermine the testimony of witnesses who implicated Gell in the murder of Allen Ray Jenkins. Now media reporters and lawyers for condemned inmates believe they’ve discovered an “odd policy”.

It’s understandable that lawyers (or media persons?) representing condemned inmates should question why prosecutors might not divulge all witness statements before trial. Even still, some testimony or witness statements may seem more relevant to the case at hand than others or some statements resemble “trash”. Sometimes during interrogation or questioning witnesses become agitated or sarcastic and say things that they might later regret. Are prosecutors required to provide evidence or testimony to other lawyers that they believe is not true or just stupid things that angry 15-year-old girls say when they are implicated in a murder? What happened then is now a moot issue. The law now says even when those witnesses “talked trash” it should be shared prior to trial. The lawyers in the Gell trial have since been admonished (or publicly spanked?) for their indiscretions.

None of the statements that impeached witnesses for the state were permanently hidden. All the evidence that existed prior to trial was eventually turned over by the same prosecutors who were eventually admonished. Some would argue that Alan Gell got more consideration in the courts because his case was considered in a “capital way” and that this worked in his favor. Even those who know and love Alan Gell, knew he was no “choir boy” before Jenkins was murdered. If law enforcement and prosecutors were eager to believe in Gell’s guilt it might have been because he’d already impeached himself. These facts or Gell’s history as a felon prior to being accused of murdering Jenkins escapes acknowledgement in the pages of the N&O. Now, who is withholding more or more often?

Missing in the pages of the Raleigh News and Observer is any reference to who (other than Alan Gell) might have murdered Allen Ray Jenkins. In their search for a “story” (not truth?), they’ve focused on attacking officers of the court or faults they think they see in procedure. Suddenly (or not so suddenly) it has become more important to reference information (or digressions) about other unrelated cases (Munsey) instead of the case at hand (Gell). If there is “new news” on the Jenkins murder, when will readers hear about it? Or is it more important to focus on misstatements by state prosecutors?

The courts have spoken on the Gell case (acquittal). The North Carolina Bar Association has admonished the lawyers involved in withholding evidence in the first Gell trial. If defense attorneys suspect that evidence has been wrongfully withheld in individual cases, arguments should be presented in our courts and decided “one by one” based on evidence, testimony, logic and facts, not en-masse or supported only by rumor, hearsay or speculation. If the Attorney General’s office has ever engaged in any “odd policies”, past or present, on other cases, that remains to be seen.

Is the Raleigh News and Observer "reporting" news (as it happens) or manufacturing it? Or is it in the business of creating fear, uncertainty and doubt where there really doesn’t need to be? More importantly, where’s justice for the family of Allen Ray Jenkins? If this really is more than “just another story” to the N&O, maybe they can do more than poke at prosecutors who happen to misspeak.

Lost Generations

Statistically speaking black men are committing more crimes and face more and longer terms of incarceration. “These lost generations” are not just a racial issue or related to one race. Think of the victims that these young men (of all races) leave in their wake. The impacts are inter-racial and cross generational.

http://www.ojp.usdoj.gov/bjs/cvict.htm
http://www.ojp.usdoj.gov/bjs/cvict_v.htm

I consider myself lucky. I grew up in a household where my siblings and me lived with both my mother and father until I was almost 16. Then my parents divorced. Mom wasn’t rich; she was a schoolteacher. My father wasn’t any better off financially speaking. I grew up in South Florida in an area where drugs and bad influences were as common as anywhere else. Trouble was easy to find for those who weren’t afraid of it (or just didn’t care). Nothing prevented me from joining the military in the early 1980’s and I didn’t. I didn’t finish college either; I just went to work. The thought of going to prison was shameful. Taking something that wasn’t mine or harming someone else purposefully was appalling too.

A lot of kids these days don’t have any shame when it comes to criminal activities. Their role models are all eventually imprisoned or accused of some crime. Only a precious few (if any) college or professional athletes have clean records (legal or medical). They grow up with a Nintendo mentality (say “I’m sorry” and everything’s ok). They play Grand Theft Auto on video game machines at home in and in the real world.

Where do today’s youths learn about personal responsibility? Presidents commit adultery on the job, CEO’s are subpoenaed, investigated, convicted and imprisoned every year. When parent’s fail, why should we think it’s just their fault? Let’s face it, when “Junior” ends up in prison for life, it’s too darn late for everyone.

Members of the Saiz family have expressed support for the execution of convicted murderer Dwight McLean. They (Saiz’s) will share a life sentence dreading potential escapes or violent infractions of inmates like McLean. After sentencing, the State represents the offender; they are responsible for his well being now. As far as the State is concerned, the Saiz’s have all the justice they are going to get. It’s “case closed” as far as the courts are concerned. Lawyers say that life without parole means McLean will die in State custody. Lawyers also argue about the definition of the word “is”. No one can personally guarantee that McLean’s last breath of air will be drawn behind prison walls, or that he will never harm another person or never escape. Sad, ain’t it?

WRAL forgot who the victims are here. Yes, McLean was only a kid (17) when he murdered Robert Saiz, but 16 year old kids are given drivers licenses every day by the North Carolina DMV and they are entrusted to make life or death decisions on our roads. McLean committed PREMEDITATED MURDER, not an accidental traffic infraction. McLean wasn’t charged with being careless or stupid. He purposely pulled the trigger on a firearm (during a robbery) and shot his victim from behind (a victim trying to flee).

I don’t blame Dwight McLean’s parents for the murder of Robert Saiz. They didn’t pull the trigger. I blame Dwight McLean. He knew better and murdered anyway. Now he has to live with the consequences. Dwight McLean is not a victim! When we “feel sorry” for these murderers or put them up on a pedestal or glorify them in any way, we enable the next generation to do the same things.

The courts said that executing Dwight McLean might be the wrong thing to do; as a result, he was sentenced to “life”. Whose life? Only time will tell if he doesn’t harm a corrections officer, another offender or commit suicide. Things happen in prisons that are crueler than taking a nap on a gurney. There are no questions concerning guilt in McLean’s case. He’s not been in prison for all that long and he’s already committed a few “minor infractions”. Let us all hope that Saiz family's concerns about a mere life sentence or justifications for an execution are not confirmed. Dwight’s probably got another 50 years to go before this is over…

http://www.wral.com/news/3976105/detail.html

Laws, Lawyers and the Lawless

The New York Times recently published an extensive piece regarding some cases that the Supreme Court of the United States has rebuked (or might reverse) from the State of Texas. By some accounts recent reversals are supposed to send a message to the Fifth Circuit Court, that they need to focus on the principals of appellate law or previous Supreme Court decisions.

One of the arguments being made in the Supreme Court involves some Texas cases where white jurists and black defendants may have been involved in some sort of unfairness. What’s being implied (but not said, in as many words) is that some form of bias is the reason is why juries agreed on a death sentence, instead of life without parole. If these claims can be substantiated with proof of bias, that remains to been seen. On the surface, it looks like some defense attorneys think it is unreasonable to believe that a mostly white jury is capable of an impartial and objective decision for as long as the victim or defendant are not also white. How convenient?

Arguments are that these death sentences couldn’t have been a result of a jury’s impartial assessment of guilt or a defendant’s confirmed and established behaviors based on evidence, testimony, logic and facts, which were presented in court. Not when you ask a defense attorney, that’s for sure. I don’t usually read claims of unfairness aloud in a nasal tone for entertainment. Please excuse my sarcasm and disbelief. This doesn’t mean that claims of prejudice should be dismissed without due consideration or that they are considered flippantly.

One should not be surprised if some (or most) of these claims are just another series of weak boilerplate arguments that defense attorneys made on behalf of their clients . In many cases the racial bias claims are false ones. If bias does exist in an individual cases and jurists really have based their decisions on some prejudice, it should be argued, but with some kind of proof or witness testimony, not supposition. The courts should not be burdened with guesses or arguments that are made for the sake of arguing. Frivolous claims should result in some kind of disciplinary action but unfortunately, that’s not usually the case when baseless claims are made.

The purpose of playing the “racial card” is to shift blame for a verdict to other persons when juries decide that an execution is appropriate. The more desperate the client or the defense, the more likely there will be an attack on the courts. To some extent, trial lawyers are sometimes “professionally suicidal” when they sabotage their clients defense in some way (as drunken or sleepy lawyers) or are revealed to have used some arguably ineffective strategy. Another defense tactic is to attack the credibility of witnesses or jurists or other officers of the courts (judges or prosecutors).

A tendency for defense attorneys or media persons (or Hollywood actors) sensitive to the interests of death row inmates to reduce court arguments to “politics” (or ideology) is often observed as well. When prosecutors serve in higher (appellate) courts, it’s perceived to be an injustice to persons who are convicted by defense attorneys or advocates for the condemned. These justices serve at the pleasure of the public. When confidence in these persons is lost, they can be (and often are) replaced. If there are faults with decisions made in appellate courts, the Supreme Court of the United States has proven itself (repeatedly) capable of reversing decisions or admonishing inferior court decisions when they see error. For some reason, these persons who represent the condemned who find fault with appellate courts don’t find fault with public defenders that seek employment with private firms. Is that fair, or objective?

Oftentimes, the goal of the defense team is to reverse or re-try a case until a more satisfactory (for the accused) sentence or verdict (not guilty?) is reached. The defense’s first obligation is to their client or what they believe to be in the best interests of their client. That’s their perception of justice. It’s a necessary part of the judicial process and how adversarial parties achieve what some persons call “fairness”. If a criminal is wrongfully released because of an error, that is not "their problem" either. Really!

Part of the problem (undermined confidence in our courts) is founded in myth or ignorance. For instance, if all a person knew about trial lawyers or the courts was what they read in certain papers or anti-death penalty websites, justice could never be trusted. Contrary to popular belief, the requirements for passing State Bar exams or for becoming a lawyer don’t include alcohol related problems or some condition that makes a person a complete dolt or morally bankrupt. Rarely do advocates for the condemned describe their peers as professional or even remotely competent.

Reality is not TV; most trial lawyers (defense, prosecutors or judges) look and sound like normal persons. They are not actors or actresses who recite from scripts written by Hollywood’s best scriptwriters. In fact, many court proceedings are quite boring to most citizens.

Some cases are just made less boring. The media often “spins” cases in such a way that they can stimulate fear or uncertainty in even the most blatantly one-sided trials or decisions. When they (media) create doubt, it sure doesn’t hurt ratings (or revenue). The media is quick to point out that when prosecutors withhold evidence (even unintentionally), or when defense attorneys might have made a mistake. They remind the public that they should be wary. Yet, the media regularly withholds information about some murderers that makes many murder cases less controversial (offender infraction records during incarceration, prior offenses or convictions etc). Lies of omission are played for all they are worth, sometimes.

The goal of these persons who are advocating for condemned murderers is to undermine the faith that others (media, officers of the court, or the public) have in executions. The race card argument has nothing to do with the actual guilt or innocence of the client, and claim concerning prejudice are in many cases, nothing but a digression. Lawyers are using racial arguments as justification for postponements, these lawyers are engaging in “delay tactics”. These arguments are intended to avoid “the inevitable”, (delay and deny) for as long as possible. It should come as no surprise that many who represent indigent clients are compensated by the number of hours that they put into a case. So it should be even less of a shock when it’s made clear that many of the best arguments made on a clients behalf aren’t made until the last minute or until after an execution is actually scheduled.

Using racially charged arguments serves another purpose for defense attorneys. “Promotion of their client” is the politically correct term by these lawyers. When claims of racial bias are made without justification, reasonable persons have to wonder if they are also motivated by a desired to engage in a very public form of self-promotion (for the benefit of the trial lawyer, not the accused). In such cases the accused is reduced to a prop. In other cases, lawyers have actually "bonded" in some way with their clients. In one case in North Carolina, a death row inmate professed his love for one of his attorneys shortly before his execution. If arguments for a condemned murderer become too personal or failure to save a client more heartbreaking than usual, its possible that an attorney got too close to a client or involved in a case.

Now that states such as Texas have executed many of the offenders who were more violent, had cases that were more easily proven or those that were less defendable, it should come as no surprise that a number of cases have been rebuked or reversed because of some technicality. Should that encourage doubts in persons who support executions or encourage persons who oppose capital punishment to become more vocal? I don’t think so.

I think we should encourage the courts to focus on making quality decisions and enforcing the will of juries. Implementing and abiding known best practices actually works in everyone’s best interests. If some of us know enough to complain about the judicial system, we should challenge ourselves to propose tangible and reasonable solutions that can be implemented by sensible people. We shouldn't whine or encourage whining. We certainly shouldn’t limit ourselves to a defense attorney’s definition of the word “fair” when it comes to capital punishment. Such a thing probably won’t happen in Texas. Some prosecutors could argue at length that those on death row, even in Texas, aren’t any closer to dying than the average citizen. Especially in states like California or New York.

One thing is for sure, for as long as the courts tolerate frivolous claims, frivolous claims will be made. Part of determining the merit of these claims (specious or real) is hearing them in court. So don’t hold your breath waiting for things to change. When our courts or advocates for the condemned go “above and beyond the call of duty, to circumvent the will of a jury”, I think it should be done sparingly and with care (within the limits of the law). If problems with individual cases exist, they should be addressed one by one with quality arguments or evidence, not personal attacks or supposition. Just because a court affirms a sentence or a claim is determined to be unverified or an error is determined to be harmless, this doesn’t mean that the defense is entitled to retry case in the media. If we are not going to abide the will of our juries and enforce the sanctions they recommend, why do we have courts or laws? Isn’t that just another form of lawlessness (with a false perception of due process)?


http://www.nytimes.com/2004/12/05/national/05texas.html?hp&ex=1102309200&en=cb3c23993931bdaa&ei=5094&partner=homepage

Charles Walker's execution stayed.

Charles Walker's execution date was stayed on December 2nd, 2004.

http://www.doc.state.nc.us/dop/deathpenalty/walker_chronology.htm
http://www.newsobserver.com/news/story/1895086p-8230821c.html



Walker has at least two convictions in his record, one for the first-degree murder and another for conspiracy to commit murder of Elmon Tito Davidson, Jr. He was in disciplinary segregation (10/16/2004) at Central Prison in Raleigh.

http://webapps6.doc.state.nc.us/apps/offender/offend1?DOCNUM=0420511&SENTENCEINFO=yes&SHOWPHOTO=yes&numtimesin=2


On 12 August 1992, Walker, Sabrina Wilson, Antonio Wrenn, Pamela Haizlip, Rashar Darden, and Jesse (Jay) Thompson were at Nicki Summers' apartment, directly across from Haizlip's apartment. Summers and Wilson told Walker and Haizlip that Davidson attempted to take money and drugs from Haizlip's apartment the preceding night. Walker told Haizlip to lure Davidson into her apartment and keep him there. Thereafter, Walker, Darden, and Thompson entered Haizlip's apartment through the back door and found Davidson sitting on the couch. As they entered, Walker said that they were going to kill Davidson. Walker and Darden were armed with pistols, and Walker told Haizlip to leave.

Walker and Darden then pulled their guns, pointed them at Davidson, and made him sit down on the floor. Thompson tied Davidson's hands with duct tape and radio wire. Walker talked to Davidson; then Davidson's mouth was taped, and his feet were tied with rope or string. Walker hit Davidson on his kneecaps at least three times with a hammer. Davidson's hands came loose and were then secured by handcuffs. Walker gave a .380-caliber pistol to Thompson and left the apartment. Davidson was laid on the floor. Thompson cut Davidson's throat three times and then shot him through a pillow in the little finger and in the arm. Darden also shot Davidson several times with a .22-caliber pistol. Afterwards, Darden left and talked with Walker at Summers' apartment. Darden told Walker, "He ain't dying." Walker then reentered Haizlip's apartment, took the gun from Thompson, and shot Davidson in the neck. After the shooting and when Davidson ceased to move, Walker left the apartment.

North Carolina Supreme Court Opinion
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=1996%5Csupreme0510%5C&invol=walker

Fourth Circuit Court Opinion
http://pacer.ca4.uscourts.gov/opinion.pdf/0311.U.pdf

Walker’s infraction record during his incarceration includes at least 94 infractions, which include:

FIGHT INVOLVING WEAPONS, SUBSTANCE POSSESSION, INVOLVEMENT W/GANG OR STG, ATTEMPT CLASS A OFFENSE, WEAPON POSSESSION, PROVOKE ASSAULT, HIGH RISK ACT, DAMAGE STATE/ANOTHERS PROPERTY, UNWANTED COMMUNICATE W/VICTIMS, ATTEMPT CLASS B OFFENSE, MISUSE MEDICINE, PROFANE LANGUAGE, DISOBEY ORDER, FIGHTING, OFFER/ACCEPT BRIBE ANOTHER, VERBAL THREAT, THEFT OF PROPERTY, BARTER/TRADE/LOAN MONEY, MISUSE/UNAUTH-USE PHONE/MAIL, THREATEN TO HARM/INJURE STAFF, ATTEMPT CLASS C OFFENSE, NO THREAT CONTRABAND, ILLEGAL CLOTHING, PROPERTY TAMPERING, UNAUTHORIZED FUNDS, and ATTEMPT CLASS D OFFENSE.

http://webapps6.doc.state.nc.us/apps/offender/raw1?DOCNUM=0420511&INMV9CF1=on&SEARCH=Search

Currently his attorneys claim that no physical evidence links Walker to the 1992 murder and that no body, blood or forensic evidence links their client to a crime. They also attack the credibility of witnesses who testified against him.

WRALTV: Attorneys: No Evidence To Link Client To Murder, http://www.wral.com/news/3939581/detail.html Viewed on the Internet November 22nd, 2004

Raleigh News and Observer, Former justices urge mercy, Andrea Weigl, November 24th, 2004.

http://newsobserver.com/news/story/1858025p-8192406c.html

Former N.C. chief justice James G. Exum Jr. and former justice J. Phil Carlton have asked Easley to grant a life sentence for Walker based on his history of paranoid schizophrenia..
Exum's letter said that Walker's mental illness made him unable to fully understand the consequences of rejecting a plea bargain.

In a letter to The News & Observer in 2003, Walker proclaimed his innocence and volunteered to take a lie-detector test, which his lawyer, Megerian said hasn't occurred. Walker has consistently denied any involvement in the crime.

Carlton and Exum both favor a moratorium on executions.

Walker qualified for the death penalty on two factors: his prior conviction for attempted murder and the violence of the killing. Davidson was shot, beaten and had his throat slit with a Ginzu knife. The jury further determined that Walker did not personally commit the killing, though it was convinced that he had prompted it.

In issuing the stay, Guilford County Superior Court Judge John Craig found the case unusual and wrote that "a fundamental miscarriage of justice would result from the court's failure to consider these claims." Prosecutors and defense lawyers are crafting further arguments on issues related to the reliabitity of witness testimony and Walker's role in the cruelty of the murder which will be explored in more detail next year.

Retreat from Capital Punishment…

It should come as no surprise that advocates for condemned murderers respond to “red herrings” offered by the Associated Press that reference downward trends in the number of killers sentenced to death. 

The gross numbers by themselves don’t mean much. The missing part of the story is the reduction in the total number of truly capital crimes or those that lead up to such things. 

For instance, consider some other violent crimes that are often the precursors to aggravated murder (i.e. rape robbery). 

It’s not “new news” that violent crime in general is on a downward trend. So it might also be reasonable to expect that capital murders would also decline in number. http://www.ojp.usdoj.gov/bjs/ 

 If fewer persons are sentenced to death there might also some reasonable explanations that death penaly foes or defense attorneys (some say these persons are the same) don't acknowledge. 

 How about prosecutorial discretion? Consider cases where the closest relatives of a victim don’t want to pursue an execution (many murder cases involve other immediate family members), or they (relatives of victims) don’t want to bear the burden of a prolonged appellate process. 

Why find fault in a reduced number of capital sentences? 

If for the sake of argument, jurists have “raised the bar” in terms of what they are willing to consider to be “reasonable evidence” when they decide on guilt or recommend a death sentence today, then that doesn’t mean that decisions made using a lower standard of proof are necessarily wrong. 

Trial lawyers aren't prevented from demanding clemency for condemned inmates in cases where known technologies or increased standards of proof (i.e. use of DNA or other forensic evidence/technologies) might prove possible innocence. 

Laws already require that such evidence be processed where it might free a convicted murderer. 

These increased burdens on prosecutors to prove a case should represent at least some comfort to persons who question guilt in individual cases. 

 So yes, the option of using some “prosecutorial discretion” might encourage some prosecutors to try fewer cases capitally. This often occurs where the evidence establishes guilt but does not justify an execution in some strong way. 

Since when is a decision based on efficacy, also biased or unfair? Isn’t this also a more efficient use of our courts and jurists? The bottom line on statistics is that, they "might mean more to us" if all murders were committed in the same manner, by the same kinds of offenders and the victims were all equal in every respect, but this is not so. 

Not all cases are equally strong in terms of proving the heinousness of the crime or their motivations. Each murderer represents a unique risk to themself and to others persons (or inmates and corrections staff). Imprisonment means something different for each convicted murderer. Each crime is in fact unique. 

This is why juries make the decisions when it is time to consider an occasional (but deserved) death sentence. In the end, the statistics are just statistics. 

So if polls show no appreciable changes regarding the overall support for capital punishment, that shouldn’t surprise anyone. If Americans continue to support the concept of capital punishment yet recommend the execution of fewer murderers, this should not be cause for concern either. 

Especially, if Americans are being more careful in recommending just who, gets executed. 

Yes, occasional wrongful convictions should make us all more careful and demanding when it comes to meting out death sentences. Few persons acknowledge the fact that in the majority of cases where a supposedly wrongfully convicted murderer was released, that strong evidence indicating guilt usually still exists. 

This is a far cry from the “actual innocence” standard that death penalty foes would encourage persons to believe when a rare case is retried, or results in a acquittal, gets reversed, remanded or an error is found. If anything this proves how reluctant the courts are to follow up with an execution when a case against a condemned murderer is in fact, a weak one. 

 Concluding that the results of local elections reflect a change how the public views capital punishment would be short sighted too. America just re-elected an ex-Texas Governor to the presidency. He is a man with a strong background indicating support for capital punishment, in case no one noticed. 

 If some of us seem to take occasional (and public) joy in a death sentence that should be discouraged. Death sentences mean that the system has failed a victim by preventing a brutal murder. 

Make no mistake about it; murderers on death row are not to be confused with being victims. “Premeditated or 1st degree murder” means they had choices and did wrong. 

It's also worth mentioning that the effectiveness of counsel is considered for every condemned murderer as a part of normal procedure not happenstance. 

 If evidence is wrongfully withheld it should be considered in our courts. If an occasional or rare case demonstrates that these things have happened in the past, it also demonstrates that the courts threw the verdicts out when the circumstances called for it. 

The appellate process is there to root out all such errors and validate prior decisions in the courts. Yet some only find fault in the process when it actually works. Death penalty foes even find fault in our leaders when they occasionally commute or overrule a death sentence. 

North Carolina’s Governor has commuted two condemned murderers sentences to life without parole. This demonstrates that compassion and leniency can be argued for on his watch. If lawyers are going to find fault with individual decisions the Governnor has made they had better substantiate such things with evidence, testimony, logic and facts, not supposition or statistics (or other weak arguments and whining). 

 So legislatively speaking, if the polls indicate that North Carolinians still overwhelmingly support capital punishment and from an evidentiary standpoint, we know that all of the murderers who have been executed were in fact guilty, why should we seek a moratorium on executions? Certainly not just because many advocates for death row inmates object to all executions! 

It makes no matter to them how heinous the crime or dangerous the murderer. Many of those who advocate for condemned murderers have a primary obligation to their clients and/or are paid to object to executions. So, when these persons voice their objections to the occasional and deserved execution we should consider just whom (or what) they are advocating for. Shouldn't we?!

http://www.newsobserver.com/opinion/story/1884679p-8213758c.html

Shades of Gray...

On November 21st, 2004 an article was published in a local newspaper that included some statements from various persons on different sides of the issue of capital punishment. No news article, study or resource can ever fully accomplish the task of explaining why some cases are tried capitally while others are not. In the end, District Attorneys have been given the authority to use some discretion in what penalties to pursue and juries make a decision after guilt is established about whether or not an execution is appropriate.

Some persons object to the idea of an execution no matter how heinous the crime or violent the murderer might be. These persons who advocate for condemned murderers often associate a punishment for another crime or equate an execution with another murder. They also demonstrate what is arguably an “abbreviated attention span for facts” or lack of appreciation for the system even when it works to the benefit of a condemned murderer. When an occasional case is reversed or remanded or results in an acquittal after a new trial, they only find fault. Some persons never distinguish between presumed (or assumed) innocence and proven (or actual) innocence. The idea that our courts might occasionally be overly conservative, careful or cautious, and as a result wrongfully release murderers, escapes their attention.

Many factors are considered prior to trial when officers of the court decide on which punishment to pursue. The issue concerning what punishment a defendant might deserve really should lie with a jury. This does not mean that allowing at least some prosecutorial discretion is wrong. District Attorney’s have a first responsibility to do what they believe is in the best interest of the State. They hold elected positions and can be replaced if their performance is less than the public expects.

The State’s (or District Attorney’s) interests can conflict at times with the needs or desires of the friends or family members of homicide victims, but that does not mean that they are not considered (or shouldn’t be) when a case goes to trial. If a jury recommends a death sentence or "life without parole" in an individual case or there appears to be some unrelated pattern of increasing or decreasing death sentences (or other statistics), or some persons merely find these events/observations to be amusing, it doesn't mean they deserve special notice. Each case should be decided on it's own merits. All of these verdicts and sentencing recommendations deserve the reverence of the public. If additional evidence or facts happen to "change things", we should be supportive of the judicial process, not merely attack it. The public deserves to be notified too.

The idea of offering up disparate (and very recent and real) high profile cases as examples of the decisions that prosecutors face when deciding whether or not to try a case capitally is not necessarily new (Ann Miller-Kontz, Matthew Grant, Scott Peterson). The different sentences or prosecution strategies don’t indicate intentional or obvious unfairness. Persons, who object to instances where an execution was or was not considered, question if the process is fair for different reasons. Efficacy of prosecution is only one factor that should be considered before going to trial. Each case presents its own unique set of facts, circumstances and evidence; all have different levels of quality or present-ability in court. If prosecutors are influenced by the likelihood of a conviction and the efficacy of attaining an actual death sentence, that notion is not "new" either.

Attorneys who represent condemned or condemnable defendants work for the State, as do the prosecutors, on the other side of the courtroom. What makes them different from prosecutors is their primary task is to provide for the best interests of their clients (murderers?). This is a necessary part of the process. An effective and vigorous defense is required to maintain fairness (or that perception) in our courts. If a defense attorney conceded that any murder case deserves to be tried capitally, it might be perceived as a sign of weakness (by his or her peers, or those who depend on their services). So an occasional and public conclusion that a murder case doesn’t demand to be considered in a “capital way” should be considered with at least some reservation when made by certain trial lawyers (defending death row inmates). One should note that such persons rarely miss an opportunity to promote their clients and often engage in pubic appraisals of the judicial system or law enforcement, especially when their cases are particularly weak. One has to wonder how some of these persons sleep at night.

Even the most avid supporters of capital punishment wouldn’t propose to execute every single murderer, yet execution abolitionists believe that all murderers should be treated the same. If all murders and murderers are unique, how can sentencing all murderers to life without parole be considered fair?

Persons who support and oppose executions agree and disagree on almost every other issue. Each victim and defendant is unique. Each crime is unique. To treat all convicted murderers the same dismisses the notion that each murderer represents a unique risk to other persons (or himself) and that each victim represents a different kind of loss. Yes, all murder victims are “equally dead”, but victims all endure different pains and humiliation as they die. These are factors for jurists to consider, along with the desires of the friends and family members of the victims, not just the attorneys.

It’s a logical assumption that the primary issues of deciding whether or not to pursue a case capitally revolve around guilt and culpability, and strength of presentable evidence in terms of proving such things. The conclusion that a jury would “call it quits” or that unreasonable doubts might somehow become “reasonable” in capital cases because a death sentence is considered, fails to account for the fact that sentencing and guilt phases in murder trials are separate events. Special attention given to sentencing is evident in every capital case not just by a jury at trial but later on in the courts (appellate process).

The special attentions that condemned murderers receive are often criticized. Family members of victims are confronted with a State that frequently assumes an almost adversarial role by protecting an offender’s best interests first. Family members of the condemned demand more access to their loved ones, among other things. The fact that many victims and perpetrators are poor indicates some of the motivations that are behind the crimes, which require the ultimate punishment. “Righteous victims” are less prevalent in these populations too. This does not mean that victims or the condemned are being discriminated against in the courts.

If a family chooses not to repeatedly (and publicly) endure the disclosure of the checkered past of their loved one (or victim) and decides not to support pursuing an execution, one shouldn’t find fault with a prosecutor who respects those needs and desires. This doesn’t demonstrate that some families love the ones they’ve lost any less than others who support executions. At times, victims and defendants are closely related and families often wish to preserve what remains of their family, despite what has happened. Some surviving family members of murder victims seek executions because they feel threatened by the murderer. These needs and desires, whatever they are, should be respected.

Murder cases aren’t to be compared with games (playing horsehoes) or gamesmanship. They involve real persons who should be treated (and sentenced) individually. Arguments relating to such things, as “affirmative action” don’t apply to capital murder or executions. Statistical disparities should not be mistaken for actual bias. Issues of bias should be addressed based on logic and fact (not supposition or statistics). The murderers who happen to be on death row are there as a result of their proven behaviors and the results of a process that deserves more respect.

Yes, there are many shades of gray... and when readers, columnists or advocates for the condemned turn the issue into "blacks and whites" or "blacks versus whites" (with no "grays") consider what that means in terms of getting justice. Wouldn't it be wise to consider the motivations that influence these things? Don't we owe it to ourselves to decide each case individually based on the facts (evidence and testimony) on hand and not to mix them all up into indistiguishable shades of gray?


Raleigh News and Observer, Capital cases offer shades of gray, say prosecutors, Oren Dorrell, http://www.newsobserver.com/news/story/1849211p-8175977c.html , Viewed Online November 22, 2004.

Columnist misunderstands Miller case

Re: Educated suspects get break
http://www.newsobserver.com/news/story/1839325p-8158108c.html

Once again Sheehan “gets it all wrong”. As president of the “Death Row Inmates Have Feelings, Too, Club” readers reasonably expected that Ruth Sheehan would vehemently oppose any efforts to give jurists an opportunity to sentence Ann Miller-Kontz to death. Instead she threw readers a curve ball and some twisted logic. Sheehan’s feigned astonishment that the State did not seek an execution for Eric Miller’s accused murderer only confirms her lack of understanding of capital punishment. Whatever Sheehan’s “education” might happen to be on this subject (or murder cases in general), it surely doesn’t pass for knowledge.

Was Sheehan’s comparison of Miller-Kontz (a petite female with no criminal record to speak of) to Matthew Grant (a young man on probation that displayed an escalating pattern of criminal behaviors at the time he murdered a law enforcement officer) fair or objective? I don’t think so.

Grant acted alone when he pulled the trigger on Mark Tucker and even though he had help afterwards, that is more or less irrelevant. The two murders were committed for different reasons and by different persons. Each perpetrator has presented their own unique risks to the public in the past (even before the murders) and capacity to commit future violent crime (after their conviction).

The full story of Miller-Kontz may never be known because one suspect in that murder committed suicide and can’t be interviewed. Questions about culpability might not be so clear in the case of Eric Miller’s murder, when you compare them to a case that is more clear cut like Mark Tucker’s. If prosecutors are occasionally conservative in the way they handle certain cases it might also be related to how much strong and convincing evidence could be presented to a jury, and what they might NOT do. Not all murder cases can be tried capitally. If a District Attorney reasonably believes that a jury will not recommend an execution (based on the facts of the case) he can pursue a life without parole sentence.

If Sheehan believes that the accused/alleged murderer in the Miller case is equally eligible for a death sentence when compared to Matthew Grant, she is dead wrong. If reasonable persons compare Matthew Grant to Michael Peterson, it’s obvious that Peterson would be more likely to die of natural causes behind bars (Mike Peterson isn’t physically comparable to a 19 year old punk who’d have a lot more opportunity to escape, kill another inmate or corrections officer or commit additional crimes during his incarceration) before he might ever be executed.

Prosecutors are often forced to make their decisions on how to prosecute a case based on efficacy, yet Sheehan doesn’t understand this (obviously). In her mind, all murders and murderers are the same. Would she use the same logic if the murderer or victim were one of her own? I don’t think so. While we’re talking about reasons why a prosecutor might seek an execution in one case and not in others, why shouldn’t Sheehan consider the desires of the families of the murder victims? I suspect that thought never crossed her little mind. She hasn’t respected that notion in the past.

So if Sheehan faults prosecutors, she’s entitled to her opinions. That doesn’t mean her thoughts on the subject stand up to the facts related to each of these cases or that her “attention deficit” for these things should be overlooked. Maybe readers should consider that she’s just not qualified to comment on this subject (and others) and that her last column proves her irrelevance (or lack of education?).

http://www.wral.com/news/3922945/detail.html

http://webapps6.doc.state.nc.us/apps/offender/offend1?DOCNUM=0816932&SENTENCEINFO=no&SHOWPHOTO=yes&numtimesin=1

Hostility House

Why would persons representing a religious group (I won’t say what faith or denomination, but you can probably guess who), decide to set up a “hospitality house” for the purpose of comforting friends and family members of condemned murderers within walking of a state prison (where executions are performed) and not do the same kind of thing for families and friends of victims of other violent crimes?

It’s hard to be sure what possesses or motivates some persons to do the things they do. Some choices we humans make are signs of wisdom. Other choices that certain persons or groups tend to make are indicative of indifference, desperation, and ignorance or are just plain unfortunate or misguided. It’s not good judgment or wisdom that drives persons to do bad deeds or reward bad behaviors that much is sure. And “meaning to do well” is not an excuse for a poor performance as a human being or lapse in judgment. As the saying goes, “the road to hell is paved with good intentions”. It’s also worth saying that “some folks just take a different road”.

Obviously the decision to set up a “hospitality house” only for family members and friends of convicted murderers (to the exclusion of other deserving and disadvantaged persons and groups) has to be driven by something, but what? It’s easy to see that there is a need for persons to visit and communicate with convicted felons (not just murderers on death row) so what is it about a death sentence that makes it more “special”? Murderers sentenced to “life without parole” have friends and family who wish to visit them? Why no offers of “hospitality" for them too? It is also self evident that all of us, who are alive today, will die one day and inmates who die naturally in prison are just as dead as those who are executed. So have these persons, who created a “hospitality house” excluded otherwise deserving persons from their thought processes or dismissed their needs? Perhaps, but maybe the real motivation behind their veil of “hospitality” is to make a statement against a punishment (death penalty), by not providing a service to others they know to have a real need. It’s the exclusion of certain persons who might disagree with them that sends the message they really want to communicate, not the service they promise to provide to persons who are related to condemned murderers. Maybe “hospitality house” is a misnomer and “hostility house”, more appropriate?

Does anything prevent these persons from offering “hospitality” as they see fit? No. Nor is anyone proposing to actively protest their actions or shut them down. They are entitled to express their views anyway that they wish, as long as it remains within the law. They are acting out what they perceive to be their faith when they offer their “hospitality” to persons they choose to advocate for (with morality strings attached).

These persons offering “hospitality” are not really in the business of helping those that they claim to. Their efforts are really a passive form of hostility to the families and friends of victims who support the execution of their loved ones murderer. The alternative to saying what they mean in more simple terms might require some additional justification. They’d just be competing for the same attentions (and money) that other groups who oppose capital punishment do too.

If there is any comfort to come from these passive but hostile actions by this supposedly religious group (even holy scriptures support an occasional and deserved execution), it’s in dismissal. Yes, this group has dismissed the families of real victims in their quest to oppose executions. This doesn’t mean that in other ways that persons who oppose their point of view won’t get the same kind of support from another source. Persons who happen to support executions or advocate for real victims can dismiss these so-called “hospitality houses” and what they really stand for (hostility) because in the end, their existence is irrelevant.

The Carrboro Contingency

Recent news articles say “Woman’s killer is executed” and remind readers that a defenseless 92-year-old widow was brutally struck in the head during an attempted robbery. No questions of guilt surround the murder of Doris Poore. Frank Ray Chandler murdered her, that much is certain.

The courts determined that Chandler’s execution should stand and Governor Easley didn’t get in the way of what the jury prescribed for an obviously violent felon. Yet some persons clung to a desperate hope that clemency might be granted in this case. One has to wonder why?

Among those clinging to a desperate hope is the “Carrboro Contingency” which claims that the death sentence should not have stood because a key witness collected a $2500 reward for his damning testimony. These objections don’t include any evidence that indicates that the witness in question was untruthful in court. Also according to the “Contingency”, persons who defended Chandler claim that they used drugs with this same key witness. Are such claims a ”double stab” of sorts at attempting to claim ineffective counsel or undermine a witness’s credibility or a “win at all costs” (even at the expense of the truth), to save a client, kind of defense strategy? Unrelated actions by a prosecutor are brought into the argument to defend Chandler too. Such wild claims make one wonder about who makes them on behalf of condemned murderers and what motivates such persons.

According to certain death penalty opponents, “Governor Easley has gone beyond all reason” when he allowed the execution to proceed as scheduled. If so, the governor is in good company because a jury unanimously recommended death for Chandler and the courts did too, if only by a majority of opinion. That’s what makes recent statements by former State Supreme Court Justice Bob Orr the argument de’ jour. Obviously the Justice Orr stands by his previous dissention and he is entitled to his opinions (even more than most on this issue), but the foundations of our courts are nestled in majority opinions. Even Orr would have to agree, that the execution (dissention and all) was lawfully performed. That Chandler in fact got access to the process he was due. Many thoughtful persons deliberated over his fate. Reasonable and learned persons will disagree on many "little things", but Chandler didn't deserve to be spared over a percieved technicality (that other justices disagree with).

Chandler by all accounts led a very troubled life. No one disputes that notion, but that doesn’t excuse what he did to Doris Poore. Ms. Poore’s relatives did not stand in the way of Chandler’s execution. The “Carrboro Contingency” paid them little notice.

Years of appellate process documented the effectiveness of Chandler’s counsel. If they missed something that was unreasonable during trial it didn’t merit special attention on appeal. Since Chandler’s incarceration began, he proved again (and again) just how violent of an offender he was. Make no mistake about it; Chandler represented a danger to himself and to others for as long as he would be allowed to live. And now he isn’t (alive).

Chandler expressed remorse for his crimes through the Governor before his execution. Like many things, this was too small an effort and much too late for it to amount to anything. It wouldn’t have been required if Chandler had passed up the notion of breaking into a house and breaking a widow’s head wide open during the process. The murder of Doris Poore was no accident and if Chandler got little or no sympathy from a lot of other North Carolinians for what he did, that was probably no accident either. What he did to his victim was unforgivable. If Chandler receives forgiveness, that’s between him and God.

The “Carrboro Contingency” opposed this execution like they do all others. There is no middle ground for them. They said, that our governor couldn’t be reasonable, when he didn’t see it their way. Obviously they didn’t consult the majority of North Carolinians for their opinion on the matter or the families of real victims.

More information about Chandler and his case can be found at:
http://prodpinnc.blogspot.com/2004/11/frank-chandler-11122004.html

Frank Chandler 11/12/2004

Nov. 12, 2004 set as the execution date for Frank Chandler

http://www.doc.state.nc.us/dop/deathpenalty/chandler_chronology.htm



7/20/1993 - Frank Chandler was sentenced to death in Surry County Superior Court for the first-degree murder of Doris Poore a 92-year-old widow who was killed during a burglary of her home on December 11th, 1992. Attached to this murder charge was an attempted larceny of over $200.

Chandler was tried before a jury, which found him guilty of the first-degree murder of Doris Poore under the felony murder rule, with first-degree burglary as the underlying felony. The jury also found him guilty of attempted larceny, but not guilty of attempted first-degree rape or first-degree sexual offense. After a separate capital sentencing proceeding, the jury recommended and the trial court imposed a sentence of death for the first-degree murder conviction and a three-year prison sentence for the attempted larceny conviction.

The victim was lying on the bed with her pajama top open and her body was nude from the waist down; smeared bloody fingerprints were on her abdomen. A pair of pajama bottoms and a pair of panties was wadded together at the foot of the bed between the victim's legs, but slightly beneath her right foot. Mrs. Poore died from a single "massive blow" to the head. The blow resulted in a hinge fracture to the scalp, which effectively caused the skull to snap in two resulting in extensive swelling and hemorrhaging of the brain. Mrs. Poore had numerous abrasions, lacerations, and bruises.

Chandler’s palm and fingerprints were found on the wooden door leading into the kitchen. He has an average-range IQ and was competent to stand trial.

Defendant, in this case, broke into and entered the home of an elderly woman who lived alone, seeking either marijuana or money. Based on defendant's testimony, if believed, as he walked through the house, he heard Mrs. Poore. Upon hearing her, he struck her in the head with such force as to break her skull in two. Thereafter, he carried her to her bed and wiped his bloody hands on her stomach. He then removed her pajama bottoms and underpants. He told his cellmate Jeffrey Kyle Wilson that he did this because he wanted to see what an old woman's "pussy" looked like. He then covered her up and proceeded to search the house for her purse. Unable to find it, he left the house and returned to his aunt's house and went to sleep. Defendant never attempted to seek medical attention for Mrs. Poore after he struck her, but instead left her in her bed in a pool of blood to die.

After the murder, defendant immediately began a failed attempt to establish an alibi. He lied to the police. He tried to convince his cousin to lie to the police and to say that he never left the house on the morning of the murder. He also tried to destroy his fingerprint cards after the police obtained them. He told Wilson that he would try to avoid conviction and would "play crazy." Defendant's lack of remorse is evident.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=1996%5Csupreme0308%5C&invol=chandler

http://webapps6.doc.state.nc.us/apps/offender/offend1?DOCNUM=0072498&SENTENCEINFO=no&SHOWPHOTO=yes&numtimesin=1

Chandler has committed no less that 26 infractions during his incarceration, they include:
SUBSTANCE POSSESSION, WEAPON POSSESSION, LOCK TAMPERING, SEXUAL ACT, MISUSE MEDICINE, PROFANE LANGUAGE, DISOBEY ORDER, VERBAL THREAT, THEFT OF PROPERTY, THREATEN TO HARM/INJURE STAFF, and UNAUTHORIZED LOCATION.

Chandler record of prior incarcerations includes: B & E VEHICLES (PRINCIPAL), B & E (FEL/MISD) (PRINCIPAL), and MISC MOTOR VEHICLE VIOLATION (PRINCIPAL).

http://webapps6.doc.state.nc.us/apps/offender/raw1?DOCNUM=0072498&INMV9CF1=on&SEARCH=Search

Persons who support Chandler say that Doris Poore’s murder was “accidental”. This claim conflicts with the findings of a jury, which made its decisions based on evidence, testimony, logic and facts. These persons or groups who defend Chandler also claim that Chandler did not premeditate the killing without any specific reference to the court documents that they supposedly quote.

Defenders of Chandler also claim that his counsel used illegal drugs prior to trial and as a result he was ineffectively defended. Obviously no one else noticed this at trial (judges, witnesses, prosecutors, jurists, bailiffs, reporters etc). The lawyer’s subsequent behaviors (post-trial) and disbarment have nothing to do with how well Chandler was represented at trial. Chander’s case has been argued at various levels in the appellate courts and confirmed the effectiveness of his trial counsels representation of him. Claims of potential conflicts of interest with his attorneys do not include any specific complaints about what was (or not) said or done which prevented him from getting the assistance he was entitled to. If the appellate courts find no wrong with the representation he’s gotten so far or that any errors that might have occurred are harmless this means that an execution should proceed as scheduled.

Chandler’s supporters have found fault with the prosecutors who handled the trial. Those financial issues that they had have not been linked in any way to the trial or the handling of this case are irrelevant.

Persons who defend Chandler has also attacked the credibility of witnesses who testified against him without providing proof that any of their testimony was false. These claims represent speculation, not fact. Courts should not base their decisons on their imagination. If evidence indicates that false testimony exists, it has not been presented in the proper forum (court). What seems more likely is that when this case was lost in the courts, it was taken to the media so that what their pleas could be heard there (and conclusions would be made on speculation and supposition?).

If judges have dissented over the case, it’s been over technicalities. Chandler is in fact guilty of murder. He murdered a defenseless, old woman and defiled her memory and body after she was dead.

In short, the weakest of arguments have been made to spare Chandler from an execution. This is not due to lack of effort or because qualified persons were not involved in his defense, it is because that is what they are “weak”. These persons are entitled to their beliefs that life without parole might be an appropriate sentence (in their minds). Those arguments however conflict with common sense, the expressed decision of a jury when they recommended sentencing (or death), and with Chandler’s history of behavior on death room. These are not arguments of strength nor do they indicate innocence in any reasonable way. When one considers real facts and arguments, these requests or false justifications for clemency represent a series of digressions or an outright dimissal of what should be justice in this case.

It is clear that Chandler represents a danger to himself and to others. He will remain a danger for as long as he is allowed to live. For these and other reasons, this execution should be allowed to proceed as scheduled.

Ballroom full of lawyers

re: http://www.newsobserver.com/opinion/story/1784509p-8076141c.html

Someone heard a “ballroom full of lawyers” laugh the other day and decided that it could only characterize an instant dismissal of the seriousness of the occasion. Yes, laughter is usually associated with a comedic atmosphere but you have to consider “the laughers” for what they really are. Steve Ford didn’t consider that trial lawyers (most of the laughers were in fact lawyers) in some ways often resemble hyenas. Hyenas are usually associated with being scavengers but they are completely capable of predatory behaviors, even with their own kind. The sounds that hyenas make are often mistaken for laughter, but make no mistake about it, when they start circling a carcass (or something soon to be dead), they aren’t really laughing and many take equal joy in the spoils (living or dead) for as long as they aren’t the meal. Ford didn’t share that observation with readers because it is beyond his imagination. I suppose that the fact that his wife is a trial lawyer has nothing at all to do with that too. Another thing to consider is that every animal (hyena or lawyer) has his place in the food chain. It's understood that each serves it's own unique purpose, so "hyena" is not meant to evoke disrespect for them. They are what they are, they can't help it. One can't argue with what lawyers are. As in any profession, there are many good ones and others many agree need "a good spanking".

One shortsighted observation usually deserves another and Ford didn’t let readers down in that respect. Ford can’t “let go of Gell” and attacked the North Carolina Bar Association or persons entrusted to discipline lawyers for bad performance. It’s an easy guess that this pattern (and associated revenue stream?) will continue.

No one knows better than Debra Graves and David Hoke about their personal knowledge (or what they didn’t know) of case files or about the murder of Allen Ray Jenkins in Gell’s first trial. They’ve claimed to not know about all of the withheld evidence. Ford isn’t buying it. Maybe some other folks aren’t either. One can’t argue with the fact that this disagreement has resulted in continuous employment for a number of N&O reporters and columnists and that uncertainty and doom trigger ratings and revenue. Gell has been used as a prop for persons who oppose capital punishment.

Hoke and Graves (to their credit) have not disputed that the evidence in question was withheld from defense attorneys in the first trial. Had they known about the existence of it, it’s possible that their prosecution strategy would have been different too. Some might even wonder if the case would have even gone to trial a first time. That kind of speculation is only possible if you acknowledge what they have said and accept that they weren’t aware of the conflicting evidence.

To conclude that some kind of conspiracy was concocted solely for the purposes of securing a conviction would be “just plain stupid”. It contradicts what has already been reported. If Hoke and Graves were really trying to get a conviction “at all costs”, they wouldn’t have left exculpatory evidence in the Gell case files. Evidence that might have conflicted with the verdict would have “disappeared”. But it didn’t.

Obviously, Steve Ford and some other persons are clairvoyants. These skeptics (or mystics) seem to know more about what Hoke and Graves knew prior to the end of the first trial. Meanwhile, the North Carolina Bar had to make a decision on disciplinary action based on evidence, testimony, logic and facts (not clairvoyance). Ultimately, no one (not even Ford) could prove that Hoke and Graves lied about the prosecution of Gell.

It’s doubtful that skeptics (like Ford) will ever be silenced. The thought that what some persons now call a wrongful conviction may have resulted in an actual improvement to the judicial process is too much for them to handle. Forget mentioning that new laws have since been enacted to require full disclosure of evidence before trial (not after).

Don’t be fooled by Ford’s digressions into thinking that the hearing concerning Hoke and Graves’ performance was anything about what happened (or might have happened) to Gell. It was all about their performance (or lack of it) as lawyers. In the strictest sense of what the Bar was considering that day, they were not concerned about Gell at all. They were there to address a performance issue (at trial) with two of its lawyers. Ford knows this was not the forum for Gell to “play victim”, but he played that card in his column. Gell’s presence at the occasion was expected and by all rights, he should have been there. If no one asked what the personal consequences of the first trial were for Gell, it was not because they didn’t care. It’s worth mentioning that all persons involved in the disciplinary action understand that the case was initially a capital one (some facts are now self evident). It’s also worth mentioning that some persons in the media have almost forgotten about the Jenkins family and what they deserve in terms of justice. The real victim is in a grave.

It’s entirely possible that Hoke and Graves did their job to the best of their knowledge and provided a zealous prosecution (to a fault). They missed the exculpatory information in their own review of the evidence (and admit as much). Appellate review resulted in extra eyes and understanding of the case, and resulted in a second trial (as it should have).

It’s a shame that the folks at the News and Observer haven’t put as much effort into other cases that resulted in early or wrongful releases of known predators. They haven’t looked more closely into who actually murdered Allen Ray Jenkins, have they? That could mean that a case might be closed, Lady Justice might be satisfied, and revenues (and gloom and doom effect) would be reduced. Wise readers probably shouldn’t hold their breath waiting for a conviction on the Jenkins (not Gell) case, should they? One might as well ask when the killer of Ron Goldman and Nicole Brown Simpson will be convicted.

Yes, some persons will look at recent events and snort and giggle. To some extent, this amounts to unbecoming or disrespectful conduct (as lawyers, columnists or citizens at large) concerning the decisions leaders make on important issues, one must be prepared to live with it (and learn to love it). Ford and other persons who disagree (or giggle) with the Bar are entitled to their opinions, but if they cannot accept that the buck has to actually stop somewhere (or nothing gets done on any case), perhaps they should consider a different kind of employment (where life is more black and white and all of their issues will be more simple). If the issue has been turned into a “fiasco” they have only themselves to blame. One could just as easily conclude that the abuse of power is occurring at a more public bully pulpit (a.k.a. Raleigh News and Observer?).

The next week’s (election) decisions will require us all to separate such wheat from the chaff. Maybe that’s the real agenda of the N&O, to support the election of candidates that loathe or disrespect the system (along with them)? Or perhaps folks at the N&O will refer to this court case as “The Jenkins Case” (which is still unresolved)? Jenkins happens to be the name of the real victim(s). That family and their loss should not be forgotten.

Yes, the prosecutor’s said “My bad” and they’ve accepted the shame and ridicule (and warning from the Bar) that goes along with it. They've been publicly "spanked". Changes have been made to the process to prevent such things from happening again too. Don’t expect to read much more about it in the N&O or from Steve Ford (unless they find fault with it).

Kerry can't have it both ways on executions...

Terminator or Vaccillator?


It’s election season again and make no mistake about it, capital punishment is the law in the majority of our “united states” and it remains a punishment that the federal government reserves for certain murderers. The urge to politicize the death penalty is something that reasonable persons should resist. Sometimes we fail.

Murderers are not usually in the habit of choosing their victims by their politics. They don’t ask for voter’s registrations. There are exceptions like the men who murdered the Kennedy brothers years ago. Some try to assassinate political types to gain attention (John Hinkley). And not executing a proven predator has it’s own set of consequences that are unique in every case, just as executing murderers on occasion does. None of these exceptions or conditions (alone or combined) makes politicizing capital punishment right. A jury should decide each case, and when executions are conducted the will of the jury (at the time of sentencing) is demonstrated.

Registered voters in 2004 are faced with one candidate that has an unwavering track record of support for capital punishment and another who has voiced only a tepid support for an occasional and deserved execution. George W. Bush as governor of Texas saw many executions and saw a few more as president. 1 John Kerry on the other hand has listened to persons who would halt executions while family members of victims endure the learning curve of lawyers who want to make sure capital punishment is dealt out fairly.

Whatever your feelings about executions and the appropriateness of capital punishment happen to be, you can’t be just a little bit for it or a little bit against it. Only lawyers would come up with means to measure murder in degrees or different kinds of so called “life sentences” (murder victims aren’t dead in degrees, they either are, or they aren’t). No legislator, law enforcement officer or presidential candidate can personally guarantee that once a murder is sentenced to “life” or “life without parole” that the murderer will never cause harm to others, escape or maybe murder again. So it’s no small wonder that the candidates don’t run on a simple platform that identifies them as either “for” or “against” the death penalty and just that. This year one could say that both candidates understand that executions are the law (but only one, Bush, has had a real opportunity to demonstrate his resolve on the issue). 2

Capital punishment is no tricky issue. You demonstrate your faith in the system when you exercise the will of juries. John Kerry seems to be playing for votes by saying he supports the idea of an occasional execution but also supports a halt to executions while persons review fairness or claiming that he supports executions of terrorists (but not murderers?). 3 He can’t have “this issue both ways” like he has tried to with others. Duplicity and evasiveness shouldn’t work in our courts and semantic disguises shouldn’t work in the court of public opinion. Voters deserve to know if a candidate is really “for” or “against” capital punishment. How long will Kerry deliberate on this issue or others? Should Kerry’s resolve to do what he thinks is right (whatever his position really is), be dictated by the number of votes it might get him at the polls? I don’t think so.

1.United States Bureau of Prisons,” Executions of Federal Prisoners Since 1927” , http://www.bop.gov/ipapg/ipaexechart.html
2.Texas Coalition to abolish the Death Penalty, “Executions Under George W. Bush”, http://www.tcadp.org/bush.html
3.Jeff Jacoby, ”

Tweaking the Protocol (not a cocktail)

Re: http://newsobserver.com/opinion/ford/story/1719161p-7979808c.html


More information about the process can be found at:

http://www.doc.state.nc.us/dop/deathpenalty/method.htm

It’s striking how dismissive some columnists can be when they refer to lethal injection (a punishment for a heinous and brutal murder) as a “cocktail”. Steve Ford’s article on October 10th came dangerously close to crossing a line in terms of dismissing the families and friends of the real victims or little seven year old girls who are raped before their existence on this earth is permanently snuffed out. Do such persons care more for murderers than they do for victims or innocent lives that might still be in danger for as long as the murderer is allowed to live? This reader wonders about that sometimes.

Ford and other advocates for murderers on North Carolina’s death row seem obsessed with the protocol or the combination of drugs that are administered when executions are allowed to proceed. It’s a shame that the time and energy that these persons waste on saving proven murderers from some perceived (or imaginary?) pain isn’t spent on more useful things such as job creation or education. Perkins was in fact violent at times during his incarceration. Was Sammy Perkins or any of the other recently executed predators really worth Ford’s attentions? I guess only God knows now.

More information about Perkins' case can be found at:
http://pacer.ca4.uscourts.gov/opinion.pdf/0225.U.pdf

Why do the columnists and trial lawyers entertain such notions or state that the procedure “might be” cruel or unusual? Those who are executed certainly aren’t complaining! I’ve not seen Mr. Ford (or trial lawyers or any other persons/organizations that represent murderers) mention anything about what Lashenna "Jo Jo" Moore might have endured in her final moments compared to her murderer (Sammy Perkins) when he laid down on the gurney and “took a nap”. Where’s the fairness there? The terms “cruel or unusual” applies to the crime (murder), not the punishment (execution) and thank goodness the Supreme Court of the United States saw that, as did Governor Easley. Perkins’ execution resulted in justice. For those who take the time to read the constitution, murderers aren’t entitled to a “serene execution”.


Foes of lethal injection (like Ford) object to “the process” no matter how it is administered. One can easily see why such persons only find fault when the warden altered the North Carolina protocol to mirror other states. Obviously these persons never considered that the dosages administered during executions pretty much ensure that the murderer is already dead before the final drugs enter his system. If a lethal dose times ten is given with the new procedure and the old protocol delivered only half of that, the “honoree” at the execution would still be equally dead. I doubt Ford, the trial lawyers or other death penalty foes would consider lying down on the gurney for a “half dose” and not because “it might be painful”, but because the result is the same (a quick death).

Perhaps what upsets death penalty foes most about North Carolina’s execution protocol is not the fact that it mirrors other states today. It’s that they have “less to haggle about in court”, or elsewhere (in the media?) now that it’s not so different. That’s probably why death penalty foes don’t t take the warden for his word and what motivates them to fault the courts, when their point of view is overriden there.

*** Notes ***

http://webapps6.doc.state.nc.us/apps/offender/offend1?DOCNUM=0319156&SENTENCEINFO=yes&SHOWPHOTO=yes&numtimesin=2

Perkins committed at least 13 infractions during his incarceration including : ACTIVE RIOTER, SEXUAL ACT, PROFANE LANGUAGE, DISOBEY ORDER, FIGHTING, VERBAL THREAT, NO THREAT CONTRABAND, and GAMBLING. Obviously keeping such an inmate under close custody or even on death row did not slow Perkins down in terms of harming others or breaking laws.

http://webapps6.doc.state.nc.us/apps/offender/raw1?DOCNUM=0319156&INMV9CF1=on&SEARCH=Search

Cooper made the right decision on Gell case

News and Observer is wrong again!

http://www.newsobserver.com/opinion/story/1774181p-8061471c.html


In a column published on October 28th, 2004, the News and Observer criticized Attorney General Roy Cooper for his decision to try Alan Gell a second time for the murder of Allen Ray Jenkins. The case ultimately resulted in exoneration after the second trial was conducted (with the benefits of new evidence and testimony that was withheld in the first trial). Attorney General Cooper’s decision to retry the case amounts to a display of his confidence in the system. It’s also worth noting that a jury made the final decision concerning Gell’s ultimate release from prison, not just one person (an Attorney General, prosecutor or a judge).

A jury’s decision should have more meaning for all of those involved. Many who advocate for condemned murderers didn’t consider that notion. Who at the N&O is more qualified to acquit Gell (or anyone else) that might be wrongfully convicted than a jury? It’s just as arguable that Cooper’s decision represented an opportunity for the system work the way that it should and that it did. Objective readers might have different views about actual innocence or guilt in that case, but the N&O's criticisms of Attorney General Roy Cooper concerning the Gell case are dead wrong.

More information about North Carolina's Attorney General Roy Cooper can be found at:

http://www.ncdoj.com/about/about_ag_bio.jsp

State perpetuates insanity - allows murderer to sire children

Dix staff seeking off-campus employment for four-time murderer Michael Hayes.



Many of the Dix Hospital residents are employed in off-campus jobs in preparation for their return to society. A usually reliable source has related that the hospital staff has met with resistance from off-campus employers when they were told of Michael Hayes’ “sanitized” history.

On 17 July 1988, Michael Hayes assaulted 24 people with a firearm, 9 were wounded, 4 fatally. At trial, Michael Hayes was advantaged by the jury’s anti-death penalty mind-set well before the issue became a popular cause celebre. To avoid a decision on the death penalty the jury opted for the verdict Not Guilty by Reason of Insanity and he was committed to Dorothea Dix Hospital.

The Dix psychiatric staff has been endeavoring to advance “forensic” unit residents, principally Michael Hayes and Wendell Williamson, through a hospital designed program which will lead to their eventual release. Williamson’s advance was somewhat compromised by his recent conjugal absence. The hospital’s psychiatric spokesman hopes to have Hayes employed off-campus for one, two or three months, so that he can testify to a Superior Court Judge that Hayes has been mingling with society for that period of time and has not killed anyone and that is proof that it is safe to release him

The Dix staff has historically resisted housing insanity acquitees in a restricted forensic environment, complaining that “it was too much like a prison”. Preferring instead to house the sociopaths in wards with more benign residents.

From his commitment in 1988 to November 1991, Michel Hayes enjoyed a more beneficial lifestyle than he had ever known. Endowed with a Social Security Disability allowance – since discontinued - and a salary from his job in the hospital canteen Hayes lived the life of the fabled Riley. Weekly off-campus technician escorted shopping trips and meals in Cameron Village financed by his constantly overdrawn account at the bank there. On the Saturday of Armistice Day weekend, with his hospital-married second wife providing transportation, Hayes absented himself from the Dix campus for the entire day. Some low level employee alerted the Raleigh police, resulting in a statewide brouhaha. The adverse publicity prompted the AG’s office to caution the Mental Health administration about the potential liability to which the State was being exposed. The then Secretary of Human Resources issued a memorandum ordering that, henceforth, forensic residents would be allowed off-campus only by the explicit order of a Superior Court Judge.

The hospital’s catering to Hayes allowed him to sire two illegitimate children on the hospital grounds. This impropriety was revealed to the Court at his annual rehearing by other sources while the Dix staff was representing him to be a model citizen. Periodically during Hayes’ tenure at Dix outside evaluators have determined, mainly through the Minnesota Mutifacic Personality Inventory test, that he is mentally ill, according to the North Carolina statute, and subsequently dangerous.

rbnicholson@earthlink.net

More information about this case can be found at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2000/appeals0718/&invol=hayes

An Industry Thrives on Tragedy.

Brinkhous-Bullit houses the NC Office of the Chief Medical Examiner

Buzzards

Some things are inevitable or unpreventable, like death and taxes. Everyone dies, that’s a fact of life. Conception requires death some day. We live, if we are blessed we love and are loved, and then one day we die. For some death can be a blessing, a release from pain and suffering or life of hard work maybe loneliness. A cemetery I know of comes to mind, one with a sign over an entrance that says something like “That which is so universal, must also be a blessing”. It’s meant to bring comfort for all must go through those gates one day.

Many depart this life long before their time, at the hands of a predator. 1 Friends and family, or those who are left behind, grieve for and honor their dead. Many murders are motivated by greed and selfishness. Some acts or bad actors are motivated by evil in its purest form. The motives for murder are as individual as the assassin. Some seek money, others do what they do because they feel betrayed, and some are clearly delusional or deranged. The impacts on society are unique in every case in that each victim represents a different loss to every family and friend left behind. Each victim leaves their own mark on our world while they are here, and their memory leaves a unique impression or sense of loss.

Once a murder is committed, many things become necessary and are irreversible. A body usually becomes instant evidence. Records, samplings, transcripts and pictures are presented in courts and to strangers. An autopsy reveals a cause, and a manner of death. The event is recorded for posterity in the papers and a certificate is issued. The public is informed and debts are eventually settled, most of the time anyway. Some evidence is kept forever. What represents a lifetime of accomplishments is reduced to boxes, stories and records. Each murder results in a unique decision calculus and a set of dispositions or artifacts.

For a number of persons, it’s “a job”. A mini-industry thrives on tragedy. For some the victim and the accused represent a story to tell or a picture to take. The undertaker and Medical Examiner usually see each and every victim (and many murderers) eventually. The lawyers fight over right and wrong, what might be “fair” and who gets what for those that are left behind, that is if they aren’t already dead. The first group of buzzards circles the living and the lifeless. The “search for truth” or “sifting of lies” has become both a science, and an art form of sorts. The murder, murderer or the victim are transformed into some sick or twisted “entertainment” for a day… or two. Events are reduced to temporary diversions from what seems “normal”. Everything becomes more detached and a little less human for as long as it’s not one of yours or in your back yard. The illusion of safety exists for those who think they can keep the rest of the world at arms length (or further) away.

“The story” isn’t over until the predator is laid to rest after getting the last word. The families leave the buzzards to do their “work”. 2 Some confuse the murderer with being a victim and forget the circumstances, which require a punishment. When does accountability start, when should it end? 3 What does one do to prevent a proven predator from harming other innocents? 4 What makes the lawyers and media any different than buzzards? They always seem to be there to pick through the “bones” or engage in some form of self-promotion.

1. Bureau of Justice Statistics, Homicide trends in the U.S. (1992), http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm
2. Charlotte Observer, NC Executes a man who kills 6, (10/22/04), http://www.charlotte.com/mld/charlotte/news/breaking_news/9986483.htm
3. North Carolina Department of Corrections, Inmate Infraction Detail, http://webapps6.doc.state.nc.us/apps/offender/raw1?DOCNUM=0345539&INMV9CF1=on&SEARCH=Search
4. North Carolina Department of Corrections, Inmate Summary, http://webapps6.doc.state.nc.us/apps/offender/offend1?DOCNUM=0345539&SENTENCEINFO=yes&SHOWPHOTO=yes&numtimesin=2