Tuesday, March 10, 2015

PLW: Death-Penalty Dispute Misses the Mark

Matthew T. Mangino
The Pennsylvania Law Weekly
March 9, 2015
The battle in Pennsylvania over the death penalty, although well intended on both sides of the issue, is misguided and will do nothing to advance the fundamental question: Is the death penalty an appropriate punishment in 21st century Pennsylvania?
Gov. Tom Wolf declared a moratorium on the death penalty Feb. 13. Wolf said, "Pennsylvania's system is riddled with flaws, making it error-prone, expensive and anything but infallible."
Wolf immediately came under fire from prosecutors and police officers. The Pennsylvania State Troopers Association excoriated the governor and the Pennsylvania District Attorneys Association admonished the governor, suggesting he exceeded his authority and imposed his will on the citizens of Pennsylvania.
Philadelphia District Attorney R. Seth Williams took the extraordinary step of asking the Pennsylvania Supreme Court to overrule and undo his moratorium on executions.
One might assume that Pennsylvania is a factory of death. An outsider might think that Pennsylvania carries out executions on a regular basis and that Wolf's action has caused the state's machinery of death to grind to a halt.
Not so. Pennsylvania has not carried out an involuntary execution in more than a half-century. There have been three executions in Pennsylvania since 1978 and all three men volunteered to be executed. They gave up their appeal rights and asked to die.
For those pounding their chests and stomping their feet about Wolf's reprieve, here are some things to think about. When Wolf suggested there were flaws with the death penalty, he might have been thinking of Terrance Williams, who was granted a reprieve from his execution scheduled for March 4.
Williams' attorneys and supporters have argued that important evidence was never presented to the jury that might have mitigated the chances that Williams would have been sentenced to death. Jurors from his 1990 trial have come forward to say they would not have sentenced Williams to death had they been aware that he was sexually abused as a child, and that both of his victims had abused him.
None of this mitigation evidence was raised during his direct appeal to the state Supreme Court, nor was the issue raised in post-conviction appeals. He has now exhausted his appeal and post-conviction rights.
In 2012, the Board of Pardons voted 3-2 in favor of commuting his sentence to life without parole. However an amendment to the Pennsylvania Constitution in 1997 requires a unanimous vote from the Board of Pardons to issue a "nonbinding" recommendation to the governor to grant clemency.
When Wolf suggested that the death-penalty process was error-prone, he may have been thinking of Nicholas Yarris. After serving 21 years on death row, Yarris was released in 2004.
Yarris' case shows just how much can go wrong in a high-stakes murder investigation. According to University of Virginia School of Law professor Brandon L. Garrett, Yarris was arrested by local police after being pulled over. He then got into an altercation with the officer. In lockup, he read in the newspaper about a serious rape and murder investigation and made a misguided offer to assist the local police.
Detectives interrogated Yarris, and, without recording the initial conversation, they later asserted, without any notes or documentation, that he had offered two key details about the murder that had never been made public, Garrett said. He supposedly volunteered that the victim had been raped and later described the victim's vehicle.
The prosecution also presented scarcely reliable eyewitness testimony and a jailhouse informant. Yarris was convicted of rape and murder and sentenced to death. He was later exonerated through DNA testing.
There has not been an execution in Pennsylvania in 15 years, and that was unlikely to change even without the governor's intervention. Yet, the Philadelphia district attorney has sought the King's Bench authority of the Supreme Court to intervene.
King's Bench power is a 12th century legal authority the legislature bestowed in 1722 on the state Supreme Court, granting the court constitutional authority over legal and supervisory aspects of the court system in the British colony.
Pursuant to 42 Pa.C.S. Section 726, the Supreme Court "may ... in any matter ... involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done."
In the early 1990s, the state Supreme Court justices faced a King's Bench dilemma. How does the court police itself? In the aftermath of the impeachment trial of Justice Rolf Larsen before the Supreme Court, voters amended the state constitution to limit the court's King's Bench authority. The change created a due process system for judges through a Judicial Conduct Board, which independently investigates misconduct complaints, and a Court of Judicial Discipline, which independently determines a judge's innocence or guilt.
The 1993 amendment to the constitution will have no bearing on the current dispute between the governor and the Philadelphia district attorney. The governor is using his authority pursuant to Article IV, Section 9 of the Pennsylvania Constitution, which provides that the governor has exclusive authority to grant reprieves and may exercise that authority for any reason. There at least two good reasons to exercise that authority.
Last month, the U.S. Supreme Court agreed to hear a lethal-injection case for the second time in seven years. In 2008, the high court upheld the constitutionality of Kentucky's lethal-injection protocol in Baze v. Rees, 553 U.S. 35 (2008).
The new case, Glossip v. Gross, No. 14-7955, was brought by Oklahoma inmates who claim the state execution protocol violates the constitution's ban against cruel and unusual punishment. Just last month,
Ohio Gov. John Kasich postponed all 2015 executions, seven in all, while awaiting a decision from the U.S. Supreme Court on lethal injection.
A second reason for delay was alluded to by Wolf in his announcement of a pause in the death penalty.
Wolf will continue to grant reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment completes its report. I am a member of the task force.
The task force was created by legislative action in 2011. The work of the committee is ongoing and includes the collection and analysis of data. This process is essential to making sound recommendations to the legislature and the governor.
A pause in carrying out executions—which, judging by history in Pennsylvania, seems like much ado about nothing—may nevertheless be helpful as policymakers try to drill down to the meat of the issue: Should Pennsylvania, or any state, have a death penalty? 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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