Death Penalty
Marty Lieberman
Marty is a past-president of AACJ and a past-president of the Arizona Death Penalty Forum. He has recently been appointed by the governor as the State Capital Post Conviction Defender. Until recently he was also co–chair of AACJ's Indigent and Capital Representation Committee.
Aug 04, 2007
Some victories, some defeats
Its been a while since last I wrote for this column. After much cajoling from AACJ's web guy (who is now known as the nudge guy), I will try to update the column on a more regular basis.
Some changes have occurred during the past year. First and foremost, Gary Bevilacqua and Joe Stazzone are racking up an increasingly amazing record of life verdicts without a death penalty. There's been quite a learning curve in trying these cases to a jury and Gary and Joe have been at the forefront. Kudos to them and the team at the Maricopa County Public Defender's Office.
The Arizona Supreme Court, over the past year, has affirmed most death sentences presented to them. One exception was Roque. Congratulations to Stephen Collins and Anna Unteberger of the Maricopa County Public Defender's Office. A second exception was Grell where the Court held that Grell had indeed preserved his right to a jury trial on sentencing factors prior to Ring and remanded for a sentencing trial. Congrats to Jim Rummage, Maricopa County Public Defender's Office.
Death penalty cases affirmed over the past year and a half, are:
Additionally, the Supreme Court held, in Apelt that, 1) a defendant can establish a rebuttable presumption of mental retardation through IQ scores and 2) that evidence from lay witnesses of post-age-eighteen adaptive behavior may be relevant to a determination of mental retardation.
2007 saw the creation of the State Capital Post Conviction Public Defender's Office. That office will represent capital defendants in Rule 32 post conviction proceedings. As this column is written, the office is being staffed and hopes to be accepting cases this fall.
Finally, Congress, when it re-authorized the Patriot Act, enacted amendments to the capital habeas corpus statutes which are designed to speed the process through the federal courts. In some cases, it is feared, individuals sentenced to death may find themselves unable to obtain federal review due to strict application of the statute of limitations. Only states which are certified by the Department of Justice are eligible for this rocket docket. The Arizona Attorney General has stated that he will be seeking certification for Arizona. Keep tuned for more details.
Feb 09, 2006
ASU hosts former state Supreme Court justice, others at Arizona's death penalty forum
Everyone seems to have an opinion about the death penalty.
A conference at Arizona State University Saturday, March 4, will look at Arizona's death penalty to see how it is functioning.
The conference, titled "Arizonašs Death Penalty in 2006," is sponsored by the ASU School of Justice and Social Inquiry, Arizona Death Penalty Forum, Catholic Charities and the Coalition of Arizonans to Abolish the Death Penalty.
The conference will be held in the Maricopa Room of the Memorial Union at ASU's Tempe campus.
Doris Marie Provine, director of the ASU School of Justice and Social Inquiry, will welcome attendees at 9:30 a.m.
Speakers include:
10 a.m. Thomas Zlaket, former chief justice of the Arizona Supreme Court, who will reflect on his personal evolution concerning the death penalty while serving on the Arizona Supreme Court.
11:15 a.m. Psychologist Katherine Norgard speaks on a motheršs thoughts of what it's like having a son on death row.
1 p.m. Deborah Fleischaker and Sigmund Popko of the American Bar Association will speak on the death penalty in Arizona and elsewhere.
A legislative panel at 2 p.m. concludes the day.
Rudy Gerber, a lecturer in the School of Justice and Social Inquiry in ASU's College of Liberal Arts and Sciences and one of the event organizers said, "The conference offers a special opportunity to the American Bar Association researchers to share with the public its findings regarding how well or poorly the Arizona death penalty functions in this state."
Registration fee is $10, which includes lunch if reservations are made by Feb. 25. Students may attend free, with lunch included, if reservations are received by Feb. 25. Walk-ins will be accepted. You may register using this form.
For more information call Lynn Leonardo, (602) 285-1999, or e-mail lleonardo@cc-az.org.
Jan 09, 2006
Judge Alito and the Death Penalty
The following summary is from a report prepared by Gordon Liu and Lynsay Skiba for the AmericanConstitution Society for Law and Policy. The full report can be found at http://www.acslaw.org/pdf/Alito_Death_Penalty.pdf
This month, a North Carolina inmate named Kenneth Boyd became the 1,000th personexecuted in the United States since the Supreme Court reinstated the death penalty in 1976.Over this period, the United States has executed an average of one person every 10 days. Theuse of capital punishment continues today amid growing evidence of its uneven application,departure from international norms, and high susceptibility to error. As the final arbiter of dueprocess of law, the Supreme Court has the ultimate responsibility for ensuring fairness in theadministration of the death penalty. In evaluating a Supreme Court nominee, it is important toknow how the nominee would approach this critical issue.
In his 15-year career on the U.S. Court of Appeals for the Third Circuit, Judge SamuelAlito has participated in 10 capital cases. Five were decided unanimously by three-judge panels.The other five provoked strong disagreement between Judge Alito and his colleagues. In each ofthe five contested cases, Judge Alito ruled against the inmate. His opinions, which we examinein detail, show a disturbing tendency to tolerate serious errors in capital proceedings. Theyreveal troubling perspectives on federalism, race, and due process of law, and they haveworrisome implications for the protection of individual liberties in the war on terror.Although Justice Sandra Day O'Connor, whom Judge Alito would replace, has longsupported capital punishment, she has at times supplied a crucial vote in contentious cases infavor of greater vigilance and care in the application of the death penalty. Yet it is precisely inthe most contentious cases that Judge Alito has shown an unbroken pattern of diluting norms ofbasic fairness. At a time when America's commitment to due process of law is being closelyscrutinized at home and abroad, Judge Alito's record raises serious concerns.
Dec 08, 2005
Death Penalty Sentencing Instructions Clarified by Arizona Supreme Court
On December 8, 2005, the Arizona Supreme Court considered jury instructions in the penalty phase of capital trials. The State had been asserting that the jury be instructed at the close of the penalty phase ofthe trial that the defendant bears the affirmative burden, by a preponderance of the evidence, to prove thatmitigation is "sufficiently substantial to call for leniency." The Supreme Court concluded that thisinstruction was improper because there is no "presumption" of death and, therefore, to require the defendantto prove that the mitigation is sufficiently substantial to call for leniency, would require the accused to rebuta presumption that doesn't exist. The Court went on to say that no party bears the burden of proof withrespect to the sentence to be imposed; rather, "the jurors must assess whether to impose the death penaltybased upon each juror's individual, qualitative evaluation of the facts of the case, the severity of theaggravating factors, and the quality of any mitigating evidence. ..... This assessment is not mathematical, butinstead must be made in light of the facts of each case."
Although previous cases had described the sentencing assessment as a "weighing" process, the Courtrejected the notion that the sentencing decision is itself a 'factual determination.' The Court concluded:
We therefore now clarify that the determination whether mitigation issufficiently substantial to warrant leniency is not a fact question to be decidedbased on the weight of the evidence, but rather is a sentencing decision to bemade by each juror based upon the juror's assessment of the quality andsignificance of the mitigating evidence that the juror has found to exist. Weconclude that the use of "outweighing" language in jury instructionsexplaining the evaluation of mitigating circumstances, while technicallycorrect, might confuse or mislead jurors. We thus discourage the use ofinstructions that inform jurors that they must find that mitigatingcircumstances outweigh aggravating factors before they can impose asentence other than death. Instead, jury instructions should focus on thestatutory requirement that a juror may not vote to impose the death penaltyunless he or she finds, in the juror's individual opinion, that "there are nomitigating circumstances sufficiently substantial to call for leniency." A.R.S.§ 13-703(E). In other words, each juror must determine whether, in thatjuror's individual assessment, the mitigation is of such quality or value thatit warrants leniency.
It should be noted that the Court's decision was based upon statutory grounds leading some cynics tospeculate that the prosecutors may seek a change in the death penalty statutes.Gary Bevilacqua and Joe Stazzone of the Maricopa County Public Defender's Office represent thedefendant. The opinion can be found at the Supreme Court's website: http://www.supreme.state.az.us/opin/pdf2005/CV050155PR.pdf