Death Row Exoneree to Speak Nov. 7

Kerry Max Cook, Let Nothing Keep You Down, will lecture at Indiana University School of Law-Indianapolis on Friday, November 7th at 5 p.m. in the Wynne Courtroom Inlow Hall, with reception and book signing at 6 p.m. The event is free and open to the public. Cook is an advocate for legal reform and has lectured at Princeton, Yale, and the University of Chicago, as well as internationally since gaining his freedom from death row.

Cook was born in Stuttgart, Germany into an Army family, and spent much of his youth on Army bases. He returned to the United States with his family in 1972 to live in Texas. In 1997, at age 20, Cook was arrested and wrongly convicted of capital murder, a crime for which he would spend the next two decades on death row. Kerry Max Cook’s story was part of the critically acclaimed play and movie “The Exonerated.” Cook has appeared on Nightline, Geraldo, Catherine Crier Live, the Today Show, and Frontline.

Cook’s book, Chasing Justice, was voted “book of the year” in 2007 by Reader’s Digest and can be purchased at the reception and personally autographed. Books are $15 and cash or checks can be accepted. www.chasingjustice.com

Troy Davis Execution Stayed

The execution of Troy Davis which had been scheduled for October 27th was stayed by a federal appeals court last Friday:

Troy Davis, 40, was scheduled to be executed Monday for the murder of Savannah Police Officer Mark MacPhail. But the three-judge panel of the 11th U.S. Circuit Court of Appeals stayed the execution and ordered his attorneys to prove whether he can meet "stringent requirements" to press his appeal.

Davis' supporters have called for a new trial because seven of the nine key witnesses against him have recanted their testimony, and the doubts about his guilt have won him the support of former President Jimmy Carter and other prominent advocates.

It was the third time since July 2007 that Davis has been spared the death penalty by a late court decision.

A Quarter-Century Later, Zolo Azania Sentenced to 74 Years

Around 2:30 today, the state of Indiana dismissed its request for the death penalty for Zolo Azania in a deal for a sentence of 74 years.

Azania was originally convicted in 1982 and now, 26 years later, there is closure.

When 78% Testimony Recantation Isn't Enough

Troubling news from the Supreme Court:

AP:

The Supreme Court has cleared the way for a Georgia man to be put to death for killing a police officer two weeks after it halted his execution to consider his appeal.

Troy Davis asked the high court to intervene in his case and order a new trial because seven of the nine witnesses against him have recanted their testimony.

...Davis' lawyers say new evidence proves their client was a victim of mistaken identity. Besides those who have recanted their testimony, three others who did not testify have said Sylvester ''Red'' Coles -- who testified against Davis at his trial -- confessed to the killing.

SCOTUSblog:

Refusing to decide whether the death penalty is barred for an individual with a strong claim of innocence, the Supreme Court on Tuesday turned aside the appeal of Georgia death-row inmate Troy Anthony Davis. The order clears the way for the state to set a new execution date; a Supreme Court stay of the execution expired with the denial of review. The case is Davis v. Georgia (08-66).

Case Closed

Today, the U.S. Supreme Court added a footnote to the Kennedy v. Louisiana opinion and announced that they would not be rehearing it.

Certainly an appropriate and measured response to the revelation that they had missed a relevant federal statute when considering the case (none of the briefs mentioned the statute--a military blogger brought it up of all things).

Money Matters

Today's Star Press had this editorial on the death penalty and the role of its high costs in the debate about its use:

To intentionally take a human life -- whether it's a cold, calculated crime or merely carrying out the law of the land -- is the ultimate 'punishment.' No amount of genuine remorse or sudden insight can reverse the decision.

...There are plenty of legitimate arguments both in favor of and against capital punishment that get at the real heart of the issue, that frankly, makes the cost issue ridiculous by comparison.

We're talking about the taking of a human life, not whether or not to purchase a new courthouse. To bring money into the equation only adds to the argument that capital punishment is unjust.

And then, the kicker:

It's time for discussion on a state-wide level, with a state-wide solution.

Doug Berman at Sentencing Law and Policy weighs in:

Put simply, it costs millions of dollars for a state to weigh heavily "every facet of each and every case," and thus the death penalty is always going to be an expensive enterprise. Unless and until taxpayers promise never to complain about tax increases, I find it badly misguided and quite dangerous to assert that cost issues are off the table in a debate over capital punishment.

While I agree that perhaps in a perfect world, cost would not be a defining factor in how people feel about the death penalty and the gravity of its irreversibility, we live in a world with limited and seemingly ever-scarcer resources at every level of government. The fiscal and human resources that the death penalty diverts from other programs that may more effectively keep the public safe should disturb many, and tends to be the tipping point for many audience members during presentations that I give.

I couldn't agree more with the editorial's point that the costs create an uneven playing surface and that we need a real, honest, and informed discussion around the state to determine how to address this and the many other flaws and big questions that make Hoosiers uncomfortable with the current system.

Indiana Lawyer Examines Innocence in Indiana

This week's Indiana Lawyer has two excellent articles looking at DNA evidence and cases of wrongful conviction in Indiana. The first is a profile of exoneree Larry Mayes:

“I just couldn’t believe they’d put someone innocent away like they did,” Mayes said, reflecting on his wrongful conviction. “I’d heard people talk about this, but I never would have believed it until I experienced it for my own self. But it does happen, and it’s been a long, hard road.”

The second details the work done by the Innocence Project and the IU-Indy Defense Clinic in taking cases of potentially innocent defendants:

It’s an ongoing saga unfolding nationwide, and the numbers continue to increase. Before 2008, Indiana had five exonerations. Now, six have been freed, and other defendants who’ve maintained their innocence from the start are attempting to obtain their own exonerations.

...“It’s awful to have someone in prison you believe is innocent,” said Fran Watson, an attorney and Indiana University School of Law – Indianapolis professor who leads a criminal defense clinic that handles wrongful-conviction cases. “It’s not just enough to be innocent; you have to show the violation. As long as it takes, you’re particularly glad when justice gets done, finally."

DNA testing continues to improve, becoming more accessible to more defendants. However, it still isn't cheap and you can only test DNA in cases where such evidence exists. Of the 129 death row exonerations, DNA was a significant factor in only 16 of the cases.

In fact, today is the final day of a fundraising effort by the Innocence Project to acquire testing for their defendants. If you're so inclined, head to their website and make a donation to push them over their goal.

America Continues to Execute Fewer

Professor Doug Berman at Sentencing Law and Policy makes this poignant observation:

...before tonight there had not been a single execution in the United States in over a month.

...Barring an unlikely rush of Fall executions, it appears that this year there will be the fewest total number of executions in the United States since 1994.

Hopefully this trickle of executions rather than the flood that many anticipated will create the appropriate environment for the crucial and fundamental questions to be asked about the death penalty around the country.

Victims’ Families Gather to Oppose Death Sentences for the Mentally Ill

All too often, victims' family members are either ignored in the death penalty debate, or are used for political gain and to inspire knee-jerk reactions. The reality is that the death penalty is much more complex and nuanced than we'd like and it is exactly for this reason that Murder Victims' Families for Human Rights and the National Alliance on Mental Illness have joined forces to bring together 20 families of victims and executed alike who have been effected by mental illness and the death penalty on October 3rd in San Antonio.

This is a great effort by both respected organizations and those of us who are working on the policy end of the issue always appreciate the profound courage and compassion of those who have been effected so personally.

You can read more about the project here and read MVFHR's blog here.

Kennedy v Louisiana Rumblings

While the Supreme Court had struck down execution of child rapists as unconstitutional this past June in the case Kennedy v. Louisiana, in the interim it was discovered that all the parties involved completely overlooked a federal statute that permitted this penalty through the military justice system.

This past Monday, the Court asked for new briefs so that they may consider a rehearing. From SCOTUSBlog:

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21.

That issue, of course, is whether the Court should modify or expand the substance of its ruling in the case because the decision did not take account of a federal law authorizing a death sentence for child rape as part of the military justice system. This embraces several other related issues: Will the Court rethink its conclusion that there is a “national consensus” against the penalty for that crime? Will it clarify whether one basis for its decision (the absence of a “national consensus”) was more important than the second basis (the Court’s independent view that the punishment was excessive for the crime)? Will it make clear whether rulings under the Eighth Amendment apply to the same degree in the military justice system as in civilian courts? Will it comment in any way on the constitutionality of the military justice provision for the death penalty for child rape?

As always, excellent questions but no answers for a while.

Jonothan Adler at Volokh Consipiracy weighs in:

The Court's decision to seek briefing on the question of rehearing is heartening news, as I believe the Supreme Court needs to rehear the case if for no other reason than to restore the Court's tarnished credibility.

Doug Berman at Sentencing Law and Policy has a number of posts that track the progression of this case up to this point.