Former Sen. John Ashcroft, R-Mo., is an able and accomplished man who won the respect of many Senate colleagues in both parties. But he is unfit to be Attorney General. The reason is that during an important debate on a sensitive matter, then-Sen. Ashcroft abused the power of his office by descending to demagoguery, dishonesty, and character assassination.
The death penalty is so politically correct these days that Hillary Rodham Clinton supports it. Her husband, the Democratic President, has championed curbs on death row appeals. So Illinois Gov. George Ryan’s Jan. 31 moratorium on all executions is an extraordinary event. Maybe even a turning point.
BETTY ANN BOWSER: In 1992 George McFarland was tried, convicted and sentenced to die for the murder of a Houston convenience store owner. The trial lasted less than three days–and through much of it one of McFarland’s attorneys was asleep.
GEORGE McFARLAND: So I’m nudging him with my feet–what are you doing–wake up! So later that day I asked him I said: "Well what happened?" "Oh, I was just tired." And I asked him, I told him, I said, "Man, I’m fighting for my life here. You’re supposed to be helping me"–"Oh, I got it under control George." He always told me: "I got it under control."
BETTY ANN BOWSER: McFarland appealed his conviction to the Texas criminal court of appeals, citing, among other things, ineffective counsel. The appeals court said it "did not condone" the behavior of the attorney but ruled that because there was a second lawyer present during the trial McFarland failed "to make any showing that he was not effectively represented" added Congress in here.
Now McFarland wants to go into federal court to seek relief through habeas corpus–a legal term meaning he is alleging his constitutional rights have been violated. But under the anti-terrorism-Effective Death Penalty Act passed by Congress in 1996, it will be harder for him to do that because the new habeas corpus law places a time limit on death row inmate appeals ; streamlines the entire appellate process; and may limit inmates’ ability to appeal state court decisions in the federal system.
Before the new law, McFarland could make one appeal after another sometimes on the same issue. University of Houston Law Professor David Crump says the law is designed to do what is says–make the death penalty more effective.
On Nov. 7, at about noon, the Supreme Court casually cleared the way for an execution at 9 o’clock that night-in the face of overwhelming evidence that the man to be killed was probably innocent of the prison murder for which he had been condemned.
All nine justices knew or had reason to know of Joseph Payne’s probable innocence. It would have been apparent to any fair-minded reader of the briefs and lower court opinions. These show that Payne’s conviction-charge of burning fellow prisoner David Dunford to death in his cell in 1985-hinged on the uncorroborated testimony of "an appalling and known prevaricator" (in the words of the U.S. Court of Appeals for the 4th Circuit) named Robert Smith, who was released from prison 15 years early, mainly for fingering Payne, and who has himself been named as the killer by four eyewitnesses and two others who heard Smith brag of having burned Dunford directly after it happened. (See "Innocent? Execute Anyway," Sept. 30, 1996, Page 29.)
Yet Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, and Stephen Breyer were prepared to let the commonwealth of Virginia kill Joe Payne anyway. Only Justices John Paul Stevens and Ruth Bader Ginsberg dissented from their colleagues’ no-comment denial of a stay of execution.
This willingness to allow the execution of a man who had proven his innocence-by at least a preponderance of the evidence-was a first in recent history. It provides a grim harbinger of what is to come.
At first blush, accused Oklahoma City bomber Timothy McVeigh’s pending motion for permission to give media interviews-including one with a famous TV journalist, to be chosen from a gaggle of eager applicants who have already auditioned for the opportunity-might seem an occasion for revulsion.
Here’s how the prosecution characterized the motion in a seething Aug. 29 court response filed with Chief Judge Richard Matsch, of the U.S. District Court in Denver:
"McVeigh… seeks this court’s authorization of an extraordinary attempt to manipulate the news media to produce a favorable impact on the potential jury pool. According to the motion, defendant’s counsel has already met with such well-known television reporters as Barbara Walters, Diane Sawyer, Tom Brokaw, Dan Rather and others-and now wants to ‘choose among’ them the one least likely to ‘exploit’ an interview of Mr. McVeigh, ‘brow-beat’ the defendant, or ask Mr. McVeigh questions ‘he cannot answer.’… Mr. McVeigh also has ‘interviewed’ representatives of major national newspapers, and now wants to choose among them as well…. And he wants to make a similar selection from among local television and newspaper reporters."
But the motion should be granted. (Indeed, even the prosecution’s response, which exudes distaste for the motion, stops short of explicitly urging that it be denied.) Meanwhile, the media should spurn any conditions restricting what they can say about McVeigh before or after airing any interviews.
This spectacle raises two distinct questions, one of law and one of journalistic ethics:
Should courts allow McVeigh (who is in jail awaiting trial) and other accused monsters to give media interviews when their primary purpose is obviously to curry sympathy with the jury pool?
CHARLAYNE HUNTER-GAULT: In April, President Clinton signed a bill into law that would limit access to federal court by prison inmates. The bill, known as the Anti-Terrorism and Effective Death Penalty Act, was in part a reaction by the President and Congress to the long delays in getting convicted felons executed. In order to speed up the process, the bill imposes strict time limits on Death Row inmates’ appeals. It also permits only one federal appeal of a state court conviction.
The case in front of the court today was brought by Ellis Wayne Felker, who was convicted and sentenced to death in 1983 for sodomizing and murdering a woman in Georgia. Felker’s lawyers based their appeals on the principle of habeas corpus, a provision that allows a person to test whether he is being held in prison legally. The Supreme Court turned down Felker’s appeal for a hearing three times, the last time just before the President signed the effective death penalty act. Felker’s lawyers filed a fourth appeal, and the Supreme Court this time agreed to hear his arguments. The court’s hearing of the Felker case is regarded as a test for whether the act President Clinton signed in April is constitutional.
JIM LEHRER: And now for more on today’s arguments, NewsHour regular Stuart Taylor, correspondent with the "American Lawyer" and "Legal Times." Stuart, welcome.
STUART TAYLOR, The American Lawyer: Nice to be here.
JIM LEHRER: What is the constitutional issue involved in this?
MR. TAYLOR: The issue as framed by the Supreme Court is whether this new law signed by the President is unconstitutional in that it restricts the jurisdiction of the Supreme Court to hear a certain class of these habeas corpus cases, and jurisdiction is power. So it goes to the relative power of Congress versus the Supreme Court.
Now and then a case comes along that tells us a lot about how close we are coming to executing innocent people in this country, and in substantial numbers-and about what will happen if Congress completes the evisceration of the writ of habeas corpus that is already under way in the Supreme Court.
One such case is that of Missouri death row inmate Lloyd Schlup. It took a revealing turn on Dec. 8, when a federal district judge found Schlup to be probably innocent-in the sense that "no reasonable juror would have convicted [Schlup] in light of the new evidence" now in the records-of the 1984 prison murder of which he was convicted. (Schlup was already in prison for two other crimes of (nonfatal) violence.) The judge found credible the recent testimony of 11 eyewitnesses and two alibi witnesses that Schlup was not even present during the murder.
This holding, by Judge Jean Hamilton of St. Louis (a George Bush appointee), is remarkable in several ways:
• The same Judge Hamilton had previously pushed Schlup down the track toward the death chamber without bothering to hold an evidentiary hearing in an August 1993 decision spurning his habeas appeal and vacating his stay of execution.
• Schlup would probably have been executed years ago if the habeas corpus "reforms" that were passed last year by both the Senate and the House (in somewhat different forms) had been in effect.
• Schlup would surely have been executed by now but for the efforts of his first good lawyer, Sean O’Brien of Kansas City, Mo., who did not get the case until six years after Schlup’s December 1985 conviction-and whom Congress is trying to put out of business.
Death row celebrity journalist Mumia Abu-Jamal got an unfair trial before a biased judge. His "confession" was probably fabricated by police, who may have rigged other evidence too. But he is also – probably – an unrepentant cop-killer. So what now?
You’ve probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.
In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.
Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal’s book, Live from Death Row, has helped make him an international cause cÈlËbre, selling more than 50,000 copies since May.
What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.
So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can’t be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?
Buried in a little-noticed Feb. 22 decision by the Supreme Court is an illuminating statistic. It speaks volumes-although the Court pretended otherwise-about the incapacity of many elected state judges, in the current climate, to do justice to persons accused of (capital crimes.
"Alabama’s sentencing scheme has yielded some ostensibly surprising statistics," as Justice Sandra Day O’Connor delicately broached the matter in her majority opinion in Harris v. Alabama. "According to the Alabama Prison Project, there have been only 5 cases in which the [trial] judge rejected an advisory [Jury] verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life."
These numbers are more than "ostensibly surprising." They are stunning. Alabama’s trial judges override jury recommendations to spare the lives of convicted murderers almost 10 times as often as they override jury recommendations of death.
And it’s not just a one-state phenomenon. The same pattern holds in the other two states that allow elected judges to override jury sentences in death penalty cases-although it is especially pronounced in Alabama, perhaps because judges there have more discretion and face partisan elections every six years. In Florida, trial judges opted for death in 134, and life in only 51, of the 185 death penalty cases in which they overrode jury sentences between 1972 and. early 1992. In Indiana, the ratio was eight judicial overrides for death to four for life between 1980 and early 1994.
Why are elected judges dramatically more likely than juries to favor executions? After all, the same citizens who elect the judges sit on the juries- except that juries in capital cases, from which death penalty opponents have been systematically removed (for cause) by prosecutors, are likely to be less sympathetic to defendants than the typical voter.
When barbaric, demagogic, idiotic, patently unconstitutional proposals emanated from members of the once impotent Republican minority in the House of Representatives, it was no big deal.
But when such proposals spew from the mouth of House Speaker Newt Gingrich, the most powerful congressional leader in decades, they must be taken seriously. And one of his latest-a mandatory death penalty for importers of illegal drugs, enforced by mass executions of "27 or 30 or 35 people at a time"-is real cause for alarm. Despite the unlikelihood of any such proposal surviving judicial review, the fact that a savvy (if cynical) politician like Gingrich can predict that it would win popular approval by an 80-20 margin evidences the sad state of the body politic. So the bill that Gingrich plans to introduce in September should not be written off as just another boyish excess.
Here’s how he put his idea at an August 25 fund-raising dinner in Athens, Georgia:
If you import a commercial quantity of illegal drugs into the United States, it is because you have made a personal decision to get rich by destroying our children. I have made the decision that I love our children enough that we will kill you if you do this. The first time we execute 27 or 30 or 35 people at one time, and they go around Columbia and France and Thailand and Mexico, and they say, "Hi, would you like to carry some drugs into the U.S.?" the price of carrying drugs will have gone up dramatically. Perhaps Gingrich would like to commemorate the first of his mass executions by personally bulldozing 30 or so drug mules into a mass grave-sort of a Newt-style ribbon-cutting ceremony.
