Monday, Feb. 9, 1998--



MISSOURI:

Now that Texas Gov. George Bush has shown his commitment to gender
equality by refusing to stop the execution of Karla Faye Tucker,
Missouri Gov. Mel Carnahan can show his support for gender equality by
commuting the death sentence of Reginald Powell.

Powell is sentenced to die on the 25th of this month.

If he were a woman, we wouldn't execute him.

I don't mean to excuse what he did. His crime was terrible. It was
every
bit as wanton and depraved as Tucker's. While she used a pickax to kill
her 2 victims, Powell used a knife. And before he stabbed his victims,
he jumped up and down on their chests, breaking nearly all their ribs.

What's more, just as Tucker told authorities that she had found a certain
satisfaction in killing, Powell, too, was totally devoid of remorse when
he was arrested the day after the murders.

"You know, we'll say I had the last - the last laugh," he said during his
tape-recorded confession.

Still, if he were a woman, we wouldn't execute him.

That's because of the relationship he had with his public defender
during his trial. The 2 of them had sex in the holding cell behind the
courtroom. She was in her mid-30s. He was 19.

The lawyer managed to keep this relationship secret until sometime after
the trial, when prison authorities, suspicious of her visits to the
prison, searched Powell's cell and confiscated letters she had sent him.
The letters contained graphic references to the activities that went on
during the trial.

Before we talk about gender equality, though, let me throw in one other
fact. Powell, a real dead-end kid, was never considered the brightest
kid on the block. In fact, during his trial, his attorney/lover told the
jurors that he functioned at the level of an 8- or 9-year-old.

She was talking, I suppose, about his mental functioning. Judging from
the
confiscated letters, she had no complaints about his physical abilities.

So imagine, for a minute, if the sexes were reversed. How would the
system have reacted had it learned that a male lawyer in his mid-30s was
having sex with his mentally impaired teen-aged client during her murder
trial?

Almost certainly, there would have been a move to discipline the lawyer.
The Missouri Bar Association took no action against the female lawyer.

Furthermore, the system would have taken a long, hard look at the quality
of representation the lawyer had provided his client.

That never really happened in this case.

When lawyers who were subsequently appointed to handle Powell's appeal
argued that the sexual relationship had to hamper the lawyer's ability
to provide an adequate defense - What does such a relationship say
about her judgment? - the courts airily dismissed the argument.

"Quite to the contrary, such a relationship arguably provides the
impetus for counsel to strive to provide her client with the best
representation she is capable of," wrote a federal judge.

Say what?

Furthermore, the lawyer did not allow Powell to testify on his own
behalf during the penalty phase of the trial. Powell's current lawyer,
federal public defender Bruce Livingston, has suggested that the lawyer
was afraid Powell would blurt out something about their relationship.

There's no proof of that, the courts have said.

Bear in mind, too, that because of Powell's diminished mental capacity,
this was not a slam-dunk death penalty case. In fact, the jurors were
unable to come to a unanimous decision, and so it was the trial judge
who decided upon death.

Last month, the U.S. Supreme Court refused to hear his appeal.

"We've exhausted our appeals. We're depending on the governor at this
point," Livingston told me.

By the way, Livingston visited Powell on Friday and reports that the
condemned man is optimistic.

I'd share that optimism if Powell were a woman. There is no way we
would execute a woman under these circumstances.

(source: St. Louis Post-Dispatch)

NEW HAMPSHIRE:


A 17-year-old breaks his little brother's finger and causes a fatal
infection. A man strangles his wife after she gets a restraining order.
A getaway car driver's buddy shoots a store clerk.

All could be executed under a capital punishment bill debated last week,
according to critics who consider it dangerously broad.

Much of the focus was on the morality of executions. But critics also
warn that a surge of death penalty cases could overwhelm an unprepared
judicial system.

Several of the proposed changes "look like they make a lot of sense, but
in reality could be much broader than anyone anticipated," said Andrew
Schulman, a former public defender who supervises the criminal law clinic
at Franklin Pierce Law Center.

The state's death penalty now can be applied to someone who kills a law
enforcement or judicial officer or hires someone else to commit murder.
Also covered are people who kill during a kidnapping, a rape, certain
drug crimes or while serving a life prison term without chance of
parole.

A bill sponsored by Deputy House Speaker Donnalee Lozeau, R-Nashua,
would add to that list someone who knowingly kills a child under 13, a
witness or informer in a criminal case, or multiple victims. Serial
murderers and convicted murderers who kill again also would be
covered under the bill, drafted with the governor and attorney general.

A "felony murder" provision would make people subject to the death
penalty if they took part in a kidnapping, rape, armed robbery or armed
burglary in which someone was murdered.

Adding the murder of children to the law is in keeping with a nationwide
trend of expanding the death penalty to cover the deaths of specific
groups such as the elderly, according to Richard Dieter, director of the
Death Penalty Information Center in Washington.

Expanding felony murder laws is not a trend, though 18 of the 38 states
with the death penalty have such laws, he said. He estimates that most
prisoners on death row were convicted under felony murder laws.

"It's a big step," he said. "It brings in some questionable cases in
which a person who gets the death penalty didn't even commit the
murder," he said. "If a death occurs in the course of a robbery, you
may be out of the room even, and if someone else kills, you could get
the death penalty."

Schulman said including the murder of witnesses in the law could turn
most domestic homicide cases into capital murder cases because a woman
who files a restraining order against an abuser would be considered a
witness.

"That may or may not be what people of the state want to do, but it will
be what they do if the state passes this law," he said.

Under the bill, causing "serious bodily injury that results in death''
also could earn a death sentence. That provision, too, could mean
a deluge of cases, Schulman said.

"That doesn't mean life-threatening injury," he said. "What it means is
serious injury such as a broken finger, a broken arm, a scratched eyeball
or the loss of a couple of teeth."

For example, Schulman once defended a client who punched a man over a
botched drug deal. The man hit his head on the sidewalk and died.

His client was convicted of 2nd-degree assault. But the proposed law
could have made it 1st-degree murder or even capital murder because it
involved a drug crime, Schulman said.

"Thus, a simple unarmed street fight which results in an accidental death

could result in protracted and expensive litigation followed by a
lifetime of imprisonment," or even death, he said.

Schulman said that of the 11 people charged with 1st- or 2nd-degree
murder that he represented, about half could have faced capital murder
charges under the bill.

Albert Scherr, a professor at Franklin Pierce Law Center, also believes
the felony murder proposal could greatly increase the number of death
penalty cases. But he said the potential for that to happen does not
mean it would happen.

"The attorney general's office will still have a lot of say," he said.
"Just because they will have a greater number of cases in which they
could ask for death doesn't mean they always will."

That's what worries Merrimack County Attorney Michael Johnson.

"Before we dramatically expand the death penalty in this state we should
establish a careful and rational review process within the office of the
attorney general to ensure that when the state confronts a potential
death
penalty defendant, the decision whether or not seek the state's most
severe sanction is made in a dispassionate, careful, thoughtful, reasoned
and professional way," he said.

Although there is some disagreement about whether changing the law would
result in a flood of cases, all agree that even a small increase would
create a substantial burden on the judicial system.

"One of the things the Legislature really has to think about is the way
the prosecution of homicide cases works now," Scherr said. "Is the way
so unsatisfactory and are the sentences so unsatisfactory now that we
want to create a situation where we have a lot more death penalty cases,
which take a lot more time and money?"

According to the state Judicial Council, other states spend $750,000 to
$2.2 million for each capital murder case resulting in an execution. In
contrast, New Hampshire spends about $19,000 a year to house an inmate
in the state prison. At that rate, the state can house a prisoner for
nearly 40 years before spending $750,000.

Both the attorney general's office and the public defender program would
need more money to handle death penalty cases, Scherr said.

"The story of the death penalty down South is a pretty embarrassing one
in terms of the quality of representation some defendants have gotten.
That's not the tradition here in New Hampshire, Scherr said.
"(Legislators) better think very seriously about how much this is going
to cost them."

Money isn't the only issue.

"These cases are much more complex than other cases," Schulman said.
"Right now, there are a limited number of lawyers capable of handling
capital cases. If this becomes routine, it will be an enormous strain
on everyone connected with the judicial system."

(source: Associated Press)

Rick Halperin
AI-Texas

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