Thursday, December 27, 2007

Death Penalty Moratorium Committee Cites Legal Flaws In Executions

Twelve Areas Of Review Noted


The Cool Justice Report
Dec. 27, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Earlier this year, this column visited the issue of a growing demand for a moratorium on the death penalty as opposition to its infliction has grown.

The American Bar Association created the Death Penalty Moratorium Implementation Project seven years ago. Recently, that group released the results of its study of eight states: Alabama, Florida, Arizona, Indiana, Pennsylvania, Georgia, Ohio and Tennessee. (See, "State Death Penalty Assessments and Key Findings." October 29, 2007)

The committee members included a mixture of senior litigation attorneys and law school professors. The committee's creation highlighted the concerns that permeate death penalty litigation among the states that permit it. The same issues arise repeatedly and are wrestled with by judges through the long, torturous appellate process. Families of victims, who have come to view the imposition of death as some sort of catharsis, anguish for the decade plus that most state and federal appeals require before the penalty is finally administered.

The committee was mandated to focus of these common issues:

"Although the moratorium movement has gained ground in recent years, it no longer can be doubted that many of the 3,500 death row inmates nationwide have not received the quality of legal representation that the severity and the finality of a death sentence demand. Restrictions on meaningful appellate review and inconsistencies in prosecutorial treatment of cases remain serious problems. Racial and ethnic bias still are endemic in the criminal justice system. Geographic disparities still are rampant in the application of the death penalty. Mentally retarded individuals still are being executed. Young people still are being tried and sentenced to death for offenses they committed when they were under age 18. And the innocent still are not protected adequately from erroneous conviction. Indeed, our system cannot protect the innocent unless it is protecting everyone in a criminal justice system that administers capital punishment in a fair and nondiscriminatory way. Until that time, the need for a moratorium remains as urgent as ever, both to prevent further executions of individuals whose convictions and death sentences have been imposed by an unfair and arbitrary system and to ensure an atmosphere conducive to full and objective analysis of systemic problems and remedies."

The committee studied 12 areas commonly involved in death penalty review: (1) collection, preservation, and testing of DNA and other types of evidence; (2) law enforcement identifications and interrogations; (3) crime laboratories and medical examiner offices; (4) prosecutorial professionalism; (5) defense services; (6) the direct appeal process; (7) state post-conviction proceedings; (8) clemency; (9) jury instructions; (10) judicial independence; (11) the treatment of racial and ethnic minorities; and (12) mental retardation and mental illness.

The committee issued a series of recommendations to attempt to remedy injustices highlighted by its review of the issues noted above. It studied the eight states, all proponents of the death penalty, as to whether they were in compliance with the ABA's recommendations. The results were concerning. The recommendations the committee promulgated should serve as the minimum standards for true due process of law where death is sought. The committee found those states studied to be largely non-compliant with its recommendations.

On December 17th of this year New Jersey Governor John Corzine signed a ban on the death penalty, commuting death row sentences to life imprisonment without the benefit of parole. Corzine's approved a bill that had passed overwhelmingly in the Democratic controlled legislature. The new law angered families of victims. Among those awaiting execution in New Jersey was Jesse Timmendequas, the sex offender convicted in the rape and murder of Megan Kanka, the inspiration for Megan's Law sex offender registration.

Executions have been stayed since the last in Texas on September 25th as the United States Supreme Court considers whether death by lethal injection violates the Eighth Amendment proscription on cruel and unusual punishment. That action was spurned as a result of empirical evidence that the lethal mixture employed failed to sedate the condemned prior to the administration of the drugs designed to arrest cardiac and respiratory function. Some see this as the precursor to a total ban on death sentences.

Also this month, hearings began in Connecticut on consolidated habeas corpus petitions filed by seven of the nine death row inmates claiming racial disparity in the selection of cases where death is sought.

If the state is permitted to continue executing offenders, the process must be one in which right thinking people can be assured that all constitutional safeguards have been employed. Proponents of capital punishment argue that this panoply of rights was not afforded to the murdered victims. Although true, this emotional response fails to recognize that unlike the murderers who are being prosecuted, ours is a system of laws and conscience that requires careful assessment and deliberation before a life is forfeited.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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