Advocate‘Ilie

Vol. 1, No. 5 A bi-monthly publication of the Office for Public Advocacy Aug.,1979

NOTE DEFENDER OF THEMONTHEDITORSPUBLIC

The August Newsletter is the first to go to print since the premeditated killing f John Spenkelink by the State of Florida. It is appropriate then, to lead this issue with the following article by Robert Pittman which appeared in the St. Petersburg Times of July 1, 1979, and is reprinted here with permission.

THE VALUE OF A DOG’S LIFE AND A HUMAN LIFE

This death warrant was signed, not by Gov. Bob Graham, but by the presi dent of Floridians Against Executions FAE. Rick Receveur, the Public Defender of the month, can truly be described as "Whereas the state of Florida has "a legend in his own time." Rick embarked on a series of executions; began his amazing public defender and whereas citizens of the state in career as an intern in the Jefferson order to form valid opinions of execu County Public Defender’s Office for tions need to know about them; and three semesters during law school at whereas the governor has arranged a the University of Louisville. When he deliberate program to hide the reality graduated from law school in 1975, he of executions from the citizens in became a full time public defender. whose name they are performed; now, He has served with tremendous compe therefore, is issued this warrant tency and dedication. directing the public execution of one Mixed Breed Dog at 8 a.m., The word in the Hall of Justice in Wednesday, July 4, 1979, at Fourth Louisville is that when Rick is street and Central Avenue in the city appointed to defend someone the pro of St. Petersburg, Fla." secutor immediately starts offering

Continued, Page 15 Continued, Page 2 PROCEDURE Office the notification is APPELLATEto procure an extension of time in the circuit court In order to enable the Office For to have the record certified as being Public Advocacy to properly process complete. All notifications made an appeal for an indigent defendant pursuant to the regulation and statute from a circuit court to the appropriate should be sent to the Office For Public appellate court, local public defenders Advocacy in care of Tim Riddell. If must comply promptly with the regu any questions arise concerning appel lation and statute governing the pro late procedure, feel free to contact cessing of appeals. See 504 KAR Tim at 502-564-5214 and he will be glad 1:030 and KRS 31.115. The regula to answer them. tion and statute were promuglated for the sole purpose of ensuring that an indigent defendant will be timely Continued from Page 1 afforded his constitutional right to appeal if he desires to appeal his good deals. Rick has been a principal conviction. participant in the Death Penalty Task Force at the Louisville PD office and Once. the defendant does express his has tried a number of capital cases. desire to appeal and once the notice of None of his clients have been sen appeal and the designation of record tenced to death. He has also fought have been duly filed, the local public hard to prevent the prosecutors from defender should immediately notify the seeking the death penalty in cases Office For Public Advocacy in Frank- where the crime charged was allegedly fort if he wishes the Office to handle committed before the new statute was that defendant’s appeal. Included in enacted. Rick’s anti-death penalty that notification must be the following: work has been outstanding. I the defendant’s name, his present address, and, if the defendant is not The case of which Rick is the proudest in one of the penal institutions, his is Charles Erwin Williams. Mr. Williams telephone number; 2 the name, was sentenced to two life sentences for address and telephone number of the murder and robbery after a jury trial. court reporter; 3 a statement indi Rick then uncovered evidence that the cating whether or not the defendant prosecutor had arranged for the chief has been released on bail pending the prosecuting witness to receive very appeal and, if so, the amount of the favorable treatment and concealed that bail; and, 4 a brief statement of any fact at trial. Rick won a new trial for suspected errors which occurred Mr. Williams on appeal. Williams v. during the trial. Certified copies of Commonwealth, Ky., 569 S.W.2d 139 the final judgment and the notice of 1979. Williams is now free on bond. appeal should be sent with the notifi cation. Rick is always willing to take time out from his very busy schedule to talk Once this notification is received in with a fellow attorney who has a the Office For Public Advocacy, the puzzling problem. He also manages to primary responsibility for processing play his banjo with a bluegrass group the appeal to the appropriate appellate on the side. court falls within the hands of the Office; however, it must be remem Unfortunately for the public defender bered that a local public defender’s system Rick, who has just tried three responsibility for his defendant’s case capital cases in a month, has resigned continues until the record on appeal is as of August I to begin private prac filed in the appropriate appellate tice. We thank him for the incredible clerk’s office an example of what a job he has done during his long public local public defender may be called defender career. upon to do subsequent to sending our

-2- ______NOTE- Protection & Advocacy for theDevelopmentally Disabled

UNITED STATES SUPREME COURT June 12, 1979. "The Supreme Court RULES ON WHETHER COLLEGE MUST ruled unanimously yesterday that MODIFY CLINICAL NURSING PROGRAM educatibn institutions don’t have to TO ADMIT HEARING IMPAIRED STU lower or substantially modify their DENT standards to admit handicapped per sons." Based in part on "It Isn’t the Greatest, But Put Away the Hemlock: Fortunately, the Supreme Court’s The Supreme Court’s decision in decision was neither that broad nor Southestern Community College v. that negative. The narrow issue Davis or Don’t Get Your Legal Analysis which the Court addressed was stated From the News Media" by Robert L. at the beginning of the opinion as Burgdorf, Jr., copies of which are follows: available upon request to Marie Allison 1-800-372-2988. "This case presents a matter of first impression for this Court: Whether On July 11, 1979, the Supreme Court Section 504 of the Rehabilitation Act of of the United States in a unanimous 1973, which prohibits discrimination decision ruled for the first time on the against an ‘otherwise qualified handi merits of a claim under Section 504 of capped individual’ in federally funded the Rehabilitation Act of 1973. This programs ‘solely by reason of his Act prohibits discrimination against an handicap,’ forbids professional schools otherwise qualified handicapped indi from imposing physical qualifications vidual in federally funded programs for admission to their clinical training "solely by reason of his handicap." programs." The case, Southeastern Community College v. Davis, U.S. 47 As can be seen, the scope of the deci L.W. 4689, involved a woman who sion was actually so narrow as to only suffers from a serious hearing dis apply to consideration by professional ability and was denied admission to the schools in relation to their admissions nursing program of Southeastern qualifications to their clinical training Community College because that facility programs. believed that her hearing disability made it impossible for her to partici The outcome of the decision reflects pate safely in the normal clinical the limited precedential value of the training program or to care safely for case: patients. "Nothing in the language or history of The reaction to this decision by the Section 504 reflects an intention to news media was to distort the impact limit the freedom of an educational and import of the decision by printing institution to require reasonable statements similar to the fbllowing physical qualifications for admission to banner headline which appeared on a clinical training program. Nor has Page A-i of the Washington Post on there been any showing in this case

Continued, Page 4

-3- that any action short of a substantial issue of whether a private cause of change in Southeastern’s program action exists under Section 504, it would render unreasonable the quali implicitly ruled that there is such a fications it imposed." emphasis cause by virtue of its addressing the added merits of the case. It could have U failed to decide the case on a juris It is thus apparent that the Court dictional basis and ruled specifically limited the impact of its decision that there is no private cause of through its specific statement of the action. issue and by its reliance upon the "reasonableness" of the qualifications There are obviously also some negative sought to be imposed. Accordingly, aspets to the case which must be whether or not an advocate agrees acknbwledged: with the Court’s subjective deter mination of what constituted "rea 1 The Court’s decision allows sonable" accommodations in the context colleges to continue to design their of this particular fact situation, the clinical programs in a generalized advocate certainly has the opportunity manner, requiring aM clinical program to distinguish this case factually from students to learn a vast array of one 1n which she or he is seeking skills. Thus, even though a handi reasonable accommodations under capped student may be capable of Section 504. mastering a limited number of skills which would qualify him or her for a Despite the fact that many advocates specialized practice or for a particular for handicapped persons view this job, that student may be denied the decision with disappointment, there are opportunity to receive that training some position aspects to the decision: solely because the handicap prevents the person from participating in the 1 The Court interpreted the total training program. This holding meaning of Section 504 as follows: is particularly disappointing in light of the Court’s recognition in a footnote "It requires only that an "otherwise that "there does appear to be a qualified handicapped individual" not number of settings in which the plain be excluded from participation in a tiff could perform satisfactorily as an federally funded program ‘solely by RN, such as in industry or perhaps a reason of his handicap,’ indicating physician’s office. Certainly [respon only that mere possession of a dent] could be viewed as possessing handicap is not a permissible ground extraordinary insight into the medical for assuming an inability in a and emotional needs of those with particular context." emphasis added hearing disabilities."

This interpretation is a satisfactory Apparently, the Court was more con one in the opinion of many advocates cerned with preserving the status quo for rights of persons with handicaps. of the training program than ordering modifications which would permit Ms. 2 The Court generally recog Davis to receive training appropriate nized the validity of HEW regulations for employment at the positions for under Section 504. which they acknowledge she could become qualified with training. The 3 The Court acknowledged that Court viewed the modifications pro "situations may arise where a refusal posed by Ms. Davis as a "fundamental to modify an existing prog’am might alteration" of the training program and become unreasonable and discrimin - considered those changes to be beyond atory." what the regulation requires. 4 While the Court specifically stated that it did not address the Continued, Page 14

-4- 4 Judge Montgomery dissented in this decision for two reasons. See Ayers V. Davis, Ky., 37,7 S.W.2d 878 1964. First, he felt that reliance on 28 U.S.C.A. Section 2255 was misplaced since the constitutionality of its sus pension of the federal writ of habeas corpu had never been passed on by the United States Supreme Court. RCr 11.42 MOTION VS. PETITION Also, unlike 28 U.S.C.A. Section 2255, FOR WRIT OF HABEAS CORPUS: RCr 11.42 contained no express pro ISAPPROPRIATE? vision as to the suspensionWHICH of the state habeas corpus writ. On January 1, 1963 Kentucky Rule of

Crimin4 Procedure, RCr 11.42, became Second, Judge Montgomery felt that - effective. That rule entitles a pri the provisions for habeas corpus soner, who claims he has a right to be traditionally provided prompt and released from custody under a sen immediate consideration and should not tence subject to collateral attack to be subservient to the slower RCr 11.42 proceed by motion in the court which motion. Despite Judge Montgomery’s imposed the sentence to vacate, set reasoning and his claim that the sus aside or correct it. RCr 11.421. pension of the writ was unconstitu The former Kentucky Court of Appeals tional, his views have never been has stated that the remedy afforded by accepted and the principle enunciated this rule is comparable to the remedy in Ayers continues to be observed provided federal prisoners by 28 today. A petition for a writ of U.S.C.A. Section 2255, the habeas certiorari in the Supreme Court of the corpus statute for prisoners in federal United States by Ayers was denied on custody. June 15, 1964. See 84 S.Ct. 1891.

In Ayers v. Davis, Ky., 377 S.W.2d The Court of Appeals addressed Judge 154 1964, the Court of Appeals Montgomery’s concerns in 1969 in discussed the procedural ramifications Richardson v. Howard, Ky., 448 of the enactment of RCr 11.42 on the S.W.2d 49 1969 when a habeas state writ of habeas corpus by com corpus petition alleged that due to the paring it with 28 U.S.C.A. Section length of time needed to pursue a 2255. The Court stated that the remedy under RCr 11.42 that it was federal statute expressly suspends the inadequate. The Court disallowed this right of a federal prisoner to proceed as a factor of inadequacy stating that by a petition for a federal writ of time considerations were balanced by habeas corpus if the applicant fails to the fact that in most situations the apply by motion for relief to the court prisoner is benefitted under a motion in which he was sentenced or if that pursuant to RCr 11.42 since it is court has denied him relief, unless it directed to the sentencing court, not also appears that the remedy by motion the circuit court of the county in is inadequate or ineffective. Even which he is incarcerated, therefore though RCr 11.42 has no suchexpress broadening the scope of the remedy by provision, the Court held that its affording the court all pertinent purpose plainly implied it. Accord records relevant to the issue. ingly, in Ayers, the Court upheld a circuit court’s dismissal of a state Continued, Page 6 habeas corpus petition since no show ing was made that an RCr 11.42 motion would be inadequate.

-5- ______,

The Court has also held that the mere It should also be kept in mind, how denial of an RCr 11.42 motion does not ever, that in some situations neither establish inadequacy and that the RCr 11.42 nor the writ of habeas proper course of action upon such a corpus will be of any use. in Brown denial is an appeal, not the filing of a V. Wingo, Ky., 396 S.W.2d 785 1965, petition for a writ of habeas corpus. a habeas corpus petitioner alleged that Waddle v. Howard, Ky., 450 S.W.2d an RCr 11.42 motion would be inade 233 1970. The remedy under RCr quate because the issue, illegal search 11.42 is also not inadequate where one and seizure, had been held not to be a such motion has been pursued omitting ground for relief under RCr 11.42. an allegation raised later in the habeas But even though RCr 11.42 could not corpus petition. Walker v. Wingo, be utilized the Court affirmed the Ky., 398 S.W.2d 885 1966. If the circuit court’s dismissal of Brown’s issue reasonably could have been habeas corpus petition since the issue raised in the RCr 11.42 motion, RCr was one that could have been raised 11.423 disallowed raising it in a on appeal and "habeas corpus cannot subsequent RCr 11.42 motion. The be used to undo an error that could fact that a habeas corpus petitioner have been corrected by timely appeal." lost his RCr 11.42 remedy on that grounds. does not mean that the rule does not RECENTprovide an adequate remedy U.S. SUPREMECOURT allowing resort to habeas corpus. The CASELAWCAPITAL Court has stated that the rule itself makes plain the purpose of placing a On May 29, 1979 the United States reasonable limit on the number of Supreme Court decided Green v. post-conviction proceedings so as to Georgia, U.S. 99 S.Ct. prevent a never ending flood of such 2150, 60 L.Ed.2d 738 1979. Green motions and petitions. was coindicted with Moore for capital murder with the aggravating factor of The bottom line of the cases cited rape. They were tried separately, above is that RCr 11.42 has virtually and both were sentenced to death. done away with the habeas corpus remedy in the Commonwealth. In all In his sentencing proceeding, Green cases where the conviction is subject was prevented from introducing testi to collateral attack the motion under mony of Thomas Pasby to the effect RCr 11.42 should be considered as the that Moore told him that he killed the primary vehicle with which to proceed. victim, shooting her twice after direct However, the habeas corpus petition is ing Green to run an errand. The trial not totally useless. For instance, in court ruled that Pasby’s testimony was Herndon V. Wingo, Ky., 399 S.W.2d inadmissible hearsay. The Supreme 486 1966 the appellant claimed a Court held that the exclusion of the right to be released based not on the hearsay testimony, which was highly invalidity of his conviction but that relevant to a critical issue in the Kentucky had effectively forfeited its punishment phase, denied Green a fair jurisdiction of him by releasing him to trial on the issue of punishment in Tennessee without complying with the violation of fourteenth amendment due proper transfer procedures outlined by process. KRS 440.330. Since the appellant did not claim that his sentence was subject Interestingly, the Court noted that the to collateral attack, making no assault state considered the testimony of on the validity of the original convic Pasby sufficiently reliable to use it tion, the Court held the petition for a against Moore at his trial, and base writ of habeas corpus to be the proper his death sentence on it. procedure. Continued, Page 7

-6- More than just being interesting, not technically under arrest, he could Justice Rehnquist, in dissent, uttered be detained merely on the basis of with unrestrained outcry that the "reasonable suspicion." The Court majority was embalming the law of observed that "detention for custodial evidence in the due process clause, interrogation - regardless of its label - and that in effect the Court had intrudes so severely on interests concluded that ". . .alI capital defen protected by the Fourth Amendment as dants who are unable to introduce all necessarily to trigger the traditional the evidence which they seek to admit safeguards against illegal arrest." are denied a fair trial." The Court then concluded that, inas much as Dunaway had been unlawfully WEST’S REVIEW OF detaine, his resultant statements were COURTDECISIONS inadmissible against him. RECENT

A number of important U.S. Supreme In Lo-Ji Sales v. New York, 25 CrL Court decisions dominate the case law 3135 June 11, 1979, the Court re for the months of May and June. affirmed the fundamental requisites of a search warrant. The warrant chal In Kentucky V. Whorton, 25 CrL 82 lenged in Lo-Ji authorized the seizure May 21, 1979, the Court reviewed of certain named obscene films plus the decision of the Kentucky Supreme "the following items which the Court Court in Whorton v. Commonwealth, independently has determined to be Ky., 570 S.W.2d 627 1978. In that possessed in violation of Article 235 of case, a majority of Kentucky’s highest the Penal Law. . . . "A magistrate then court, interpreting Taylor v. accompanied police to the premises to Kentucky, 436 U.S. 478, 98 S.Ct. be searched in order to complete the 1930, 56 L.Ed.2d 468 1978, declined warrant by identifying any obscene to entertain the possibility of harmless matter other than the named films. error in determining whether the trial The Supreme Court found this proce court’s refusal to instruct the jury on dure "reminiscent of the general the presumption of innocence consti warrant or writ of assistance of the tuted reversible error. The U.S. eighteenth century." The warrant was Supreme Court reversed, stating that issued in violation of the Fourth any holding that the error violated due Amendment in that it "did not purport process must be reached "in light of to particularly describe . . . the the totality of the circumstances." It things to be seized." The fact that a should be noted that this decision has magistrate had completed the warrant no immediate impact in Kentucky in did not validate it because the magis view of the Kentucky Supreme Court’s trate had not acted in a "neutral and earlier decision in Watson v. Common detached manner" but as "a member, if wealth, Ky., 26 K.L.S. 12 1979, not the leader of the search party." electing as a matter of state law not to Consequently, all matter other than apply the harmless error doctrine. the named films was illegally seized.

The Court reexamined the legality of In Arkansas v. Sanders, 25 CrL 3096 custodial interrogation conducted with June 20, 1979 the Court was con less than probable cause for arrest in fronted with the warrantless search of Dunaway v. New York, 25 CrL 27 luggage removed from a lawfully seized June 4, 1979. Dunaway had been car. The Court held the search involuntarily taken to police head unreasonable because, once the car quarters where he made incrimjnating had been stopped and the luggage was admissions. The Court rejected the secured by police, exigent circum contention that, because Dunaway was stances ceased to exist. The luggage was not "attended by any lesser rigorous "reasonableness" standard expectation of privacy" merely because with respect to automobile searches it was taken from a car. than the U.S. Supreme Court has been willing to discern in the Fourth The Court opened the doors of federal Amendment. habeas corpus relief to state prisoners a allegedly convicted on insufficient And finally, the Court of Appeals in evidence in Jackson v. Virginia, 25 Ivey v. Commonwealth, Ky.App., CrL 3229 June 28, ‘ 1979. Federal decided June 29, 1979, has held that habeas has previously been available an indigent is entitled to appointment only upon a showing that the peti of counsel to represent him on a tioner’s conviction rests on "no evi motion pursuant to RCr 11.42. The dence." Thompson v. Louisville, 326 lower ourt had refused Ivey’s request U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 for counsel on the grounds that Ivey’s 1959. The new test, as stated by se RCr 11.42 motion could be the Court, is whether "any rational disposed of without a hearing. The trier of fact [could] have found the Court of Appeals, reversing, found essential elements of the crime beyond that "substantial rights" of a movant a reasonable doubt." The decision is under RCr 11.42 are at stake regard significant since the test announced is less of the absence of need for a compelled by due process. Thus, it hearing since the failure to include all appears that the Sanders test displaces available grounds in a first motion may the rule enunciated by the Kentucky preclude them from being raised later. Supreme Court in Trowel v. Com monwealth, Ky., 550 S.W.2d 530 1977, that a conviction will stand if FEDERAL DISTRICT COURT "it would not be clearly unreasonable OVERRULES KENTUCKY for a jury to find the defendant SUPREME COURT guilty." In two cases in the past few months, the United States District Court for Two decisions rendered by Kentucky’s the Western District of Kentucky has appellate cou rts require discussion. made it clear that comments on post arrest silence will not be tolerated. In In an important decision the Kentucky Hockenbury v. Commonwealth, Ky., Supreme Court has held that, in the 565 S.W.2d 448 1978 and Mishler v. absence of consent of the owner or Commonwealth, Ky., 556 S.W.2d 676 authorized user, a warrant is required 1977, the Kentucky Supreme Court’ to search the interior of an impounded held that where a defendant makes a car. Wagner v. Commonwealth, 26 statement at the time of arrest, then a. K.L.S. 12 May 1, 1979. "Mere legal comment by the prosecutor on his custody of an automobile by law en post-arrest silence does not constitute’ forcement officials does not automatic a constitutional violation. Not so said ally create a right to rummage about the United States District Court. In its interior." The Court’s holding is both cases, a petition for writ of based on Section 10 of the Kentucky habeas corpus was granted, the Court Constitution and thus is not at odds holding that such comments by the with the holding of the U.S. Supreme prosecutor were constitutional error Court in South Dakota v. Opperman, and were not harmless. The holdings 428 U.S. 364, 96 S.Ct. 3092, 49 L. were all the more remarkable because Ed.2d 1000 1976, that the inventory in both trials defense counsel had search of an impounded automobile is failed to object to the prosecutor’s reasonable under the Fourth Amend comments. ment. The decision is ol major significance because it adopts a more

-8- THE DEATHPENALTY Death is Different

SENTENCESCHANGE: DEATHneeded .. .. The spectators were all DOESRESULTNOT edified by the solicitude of the parish priest of St. Paul’s who despite his This is an article by John Filiatreau. great age did not spare himself in It appeared May 22, 1979. Copyright offering consolation to the patient." c 1979, The Courier-Journal. Reprinted with permission. This ugly narrative perhaps ought to make us grateful that we’ve progressed A look irfto history, to help put into beyond such primitive and public perspective last week’s signing by methods of execution. Florida Governor Robert Graham of death warrants against John But capital punishment today, while Spenkelink and Willie Darden, whose certainly less spectacular, is just as executions are tentatively scheduled final and nearly as ugly. We just for tomorrow: aren’t invited to see the ultimate proof of the state’s dreadful power. On March 2, 1757, in Paris, Damiens of the Regicide is condemned to death. French philosopher Michael Foucault calls it one of the greatest changes in By royal order, he is "to make the the recent history of criminal justice: amende honorable before the main door "The disappearance of torture as a of the Church of Paris," then to be public spectacle." "taken and conveyed in a cart, wear ing nothing but a shirt, holding a According to Foucault’s analysis, the torch of burning wax weighing two change means that: "Punishment. pounds, on a scaffold that will be will tend to become the most hidden erected there, the flesh will be torn part of the penal process. This has from his breasts, arms, thighs and several consequences: it leaves the calves with red-hot pincers, his right domain of more or less everyday per hand, holding the knife with which he ception and enters that of abstract committed the said parricide, burnt consciousness; its effectiveness is seen with sulphur, and, on those places as resulting from its inevitability, not where the flesh will be torn away, from its visible intensity; it is the poured molten lead, boiling oil, burn certainty of being punished and not ing resin, was and sulphur melted the horrifying spectacle of public together and then his body drawn and punishment that must discourage quartered by four horses and his limbs crime.... As a result, justice no and body consumed by fire, reduced longer takes public responsibility for to ashes and his ashes thrown to the the violence that is bound up with its winds." practice."

On April 1, the Gazette d’Amsterdam Though our executions take place in reported of the public spectacle: secret, and exist in our minds only in "Finally, Damiens was quartered. the abstract, in the United States we This last operation was very long, are the government, and we are the because the horses used were not were executioners. I wonder how much not accustomed to drawing; conse progress we really have made. quently, instead of four, six were Continued, Page 10 If capital punishment is to be a national policy, my feeling is that we ought to be forced to deal with it on the most visceral level. If we are the executioners and we are, then we ought also to be witnesses.

Perhaps the jurors who condemn a man to death should be required to witness his execution; or perhaps all our executions should be made public, and should take place on television.

The arguments against capital punish ment are compelling. No nation in history has ever managed to apply the death penalty fairly. In our country, disproportionate numbers of blacks and poor ‘eopIe have died on gallows, in electric chairs and in gas chambers.

Many experts believe that the death penalty doesn’t deter crime. Some others argue that there are extreme cases, assassination of a head of state, for one, in which the death penalty is THE KENTUCKY CHAIR justifiable, even necessary. DEATH ROWU.S.A. The problem is that the death penalty, when approved for such extreme AS OF JUNE 20, 1979, TOTAL NUMBER OF cases, is almost inevitably extended to DEATH ROW INMATES KNOWN TO THE NAACP apply in cases of heinous but common LEGAL DEFENSE FUND: 512 crimes, such as murder committed in the course of a robbery or rape; and Race: as a consequence, large numbers of criminals are sentenced to death. Black 215 41.99% Spanish Surname 18 What results is a mechanical, pendulum % White 274 53.52% effect, in which the law and public Native American 4 0.78% opinion swing back and forth between Unknown 1 0.19% support for total abolition of the death penalty, and its use for routine Crime: Homicide crimes. Sex: Male 507 99.02% The tragedy is that the pendulum Female 5 0.98% swings back and forth while most citizens ignore altogether the issue and DISPOSITIONS SINCE JULY, 1976 its philosophical implications. Executions: 2 The situation in Florida has relevance Suicides: 4 for us. Three prisoners are. on Ken Death Sentences vacated as unconsti tucky’s Death Row today, sentenced to tutional: 504 crimes that are horrible, and death for Convictions or sentences reversed: horribly routine. Will we kill them, or 171 not?

-10- PUBLICATIONS LEGAL It is authored by Millard Farmer, The office has updated its attorney, and Courtney Mullin, psy Penalty Manual May, 1979. It chologist, of Atlanta DeathTeam Defense. is available to local defenders for the Jhe article appeared in HOW TO TRY asking. Otherwise, it is available for A CAPITAL CASE 1977 and is re $5.00 in order to cover printing costs. printed with permission of the North Contact Edward C. Monahan. Carolina Academy of Trial Lawyers, P.O. Box 767, Raleigh, N.C. 27602: Also available is: Motion File: Criminal Law Motions and Memorandums The family background, the psycholo May, 1979. This publication contains gist, the theologians, the people who over 900 pages of sample motions and can mnd and help in that area. memorandums. Because of enormous Often rawyers question how this is printing costs, it is necessary to charge $25.00 for this publication. Contact Bill Ayer.

DID YOU KNOW?

Did youknow that a capital murder in Kentucky does not necessarily carry the possibility of a death sentence?

The legislature has denominated every murder a capital offense. See KRS 507.0202. However, this designation is a misnomer since only certain capital murders carry the ‘possibility of a sentence of death. According to KRS admissible. They call up and say, "I 532.0253, the death penalty is a have a man who witnessed 187 execu possible punishment only if one of the tions in Texas and I understand you seven statutory agg ravatory factors have used him in many trials but my listed in KRS 532.025 2a17 judge isn’t going to let him testify. It exists. Without the presence of one of isn’t permissible." The D.A. says I the statutory aggravatory factors, a can’t get it in." You see that’s be capital murder carries a maximum cause you’ve made it a regular trial. possible punishment of life imprison You tried the case in a sterile atmos ment. phere and you haven’t done what is necessary, you haven’t let them know DEATH PENALTYASSISTANCE that it is a trial really about this individual’s life. There are going to A number of attorneys in the office be very few judges anywhere in this have formed a group in order to country, regardless of their views, provide assistance to trial attorneys that are going to keep out any of your handling capital cases. efforts on the penalty segment. They are going to say, "Look, let’s let the If you are interested in our assis jury see it all." And that’s your tance, contact Edward C. Monahan, argument to the prosecutor. What are Chairman, Death Penalty Task Force. you afraid to let these people know? Why are you afraid for them to find it TRIAL CAPITAL EMPHASIS ONTHE out? STAGE OF ACASE..’PUNISHMENT Continued, Page 12 This is the third of a four part article.

-11- DefenseInsanity death as punishment does not accom But you’ve got to have a theme for plish the goals they want it to accom that and you’ve got to understand a plish. There is a book called way to get it in. Get in the members Executions in America written by of the family by merely saying this is William Bowers at Northwestern Uni information the psychologist or the versity, an exhaustive study that psychiatrist needs to testify later on. shows not only does death as punish You don’t have to say the man is ment not deter crime but he also insane to have a psychologist or psy found, to his surprise, that the homi chiatrist there. You don’t have to say cide rate rises significantly in the those things about him. You don’t have to reduce him down to being an animal. And it’s a mistake. The old "insanity" defenses when you don’t have any other defenses are the dumbest defenses going. They are of no value. You want to develop an explanation for what could happen to the iriividuaI from here out and what might have happened up until this point. You’ve got to carry it out with every little thread and every little witness that has testified and all the voir dire examination.

I can’t tell you all of the different month following an execution. The kinds of people who have been used executions by the State cause more throughout the country in these pen homicides to occur in the community. alty phase trials. Some of them He explains it like the phenomenon include many executioners in this when a famous person commits suicide country. In fact, most executioners and there is a rash of suicides. Other will now come and tell you it’s wrong. people who have problems say that It shouldn’t be done. It shouldn’t person had so many problems they have been done. And they want to couldn’t deal with them so they killed have their little part in stopping it. I themself and got rid of their problems. know very few executioners out of the People see the State as a symbolic last era who are now living who authority figure to look up to. It wouldn’t come and testify for you. can’t solve its social problems so it simply wipes away a life that causes One main point in the penalty phase is its problems. The State kills that to approach the problems of why person in a barbaric manner and they people believe in the death penalty or think, "Well, I’ve got these people who say they believe in the death penalty. are problems to me and I’ll go out and In North Carolina, particularly around I’ll kill them and I’ll get rid of them, the more urban areas, people are too." Not only does the death penalty going to say it deters crime. The law not deter murder but it causes a rise itself is a symbolic response of our in the rate of homicides. society to peoples’ fear about being robbed, etc. They think that somehow There have been a number of studies by passing this to be able to execute that completely repudiate a poorly done people, they are going to stop crime. study that showed the death penalty We have a long history of passing does deter in terms of economic poor, symbolic laws which this one is. theory. There are people who you We need to approach and confront people with evidence to show them Continued, Page 13

-12- could get to talk to the jury from the In other words, we are going to have basis of economic theory of predict to find that more people in the public ability that the death penalty does not don’t want death as punishment before 4 deter homicides. There are people we find the rule of law that says that who have been on death row and who it is cruel and unusual, or whatever are now living socially acceptable lives we are going to say it is. There are in this society. This is to tell the groups composed of various segments jury people on death row, people who of society from the far left to the far have killed change and can be rehabili right. Whichever of those groups you tated, can change and become good can work with, you can tap them to citizens of our society. We can get help you. Don’t forget the power of chaplains on death row to talk about having the pastor or preacher of the the quality of people, what it’s like to victim testify. Go talk to the victim be a chaplain on death row, and the and say retribution isn’t what you privation suffered by many inmates on ought to be concerned about. death row. Explain the differences "Suppose you go with me to the between the people on death row as District ALtorney and let’s talk about opposed to the people with life in this individual being punished, yes, prison’ You can get theologians to but not inhumanely dealt with through talk about what I think is the whole death as punishment." We probably problem, what is underlying peoples’ have turned around two cases and had belief in the death penalty that is one trial stopped in the middle because retribution. We believe in an eye for the family of the victim told the D.A. an eye. If you are going to kill, we to stop it. They did not want the are going to kill you. In our exper death penalty against that individual. ience in rural areas even a great It was going to be a real scene in the number of ministers and religious courtroom if he didn’t stop the trial. people are telling their congregations, The D.A. stopped the trial, the client "Yes, we believe in capital punish took life. The victim’s wife went up ment, we believe that it’s a good and hugged the black mother and cried thing". So you need, particularly in a and said, "Listen, I hate your son. state like North Carolina in the rural But I couldn’t sit here and see you as areas, to come at that directly. There a mother week after week fighting for is a Baptist preacher in Georgia but it your son’s life. I could imagine it was would be much better to get one in me there sitting if my son had done North Carolina to say, "No, we believe something wrong, fighting for his life. in life. We don’t believe in an eye for I don’t care what it is, that D.A. is an eye, and that’s not the way that not going to do this to you". The should be interpreted." Refute that judge saw this as a very reasonable whole argument. solution to the case to stop the trial. You can tap the resources by having It is important to realize what un them come to the courtroom, have tapped resources you have. In all of support for you in the courtroom. It’s the states now there are coalitions of important for the fight for that one individuals and groups who conscien client; it’s important in the overall tiously oppose death as punishment. fight that you won’t be trying death The polls now report it is probably cases back to back, day in and day 70-30. Only 30 percent of the people out in that county just because the believe that we should not have death D.A. has found that he has a green as punishment and it’s going to have light to the death penalty. So tap to be turned around in th street that resource. before it’s turned around in the court.

-13- Continued from Page 4 prevent their accommodations so that it 2 The Court seemed to base its is clear to the courts that their propo decision partially on the financial sals fall into the category of required burden which would be placed upon accommodations and not into the excep I. the college. In a footnote the Court tions. referred to a section of the Rehabili tation Act of 1978 which authorizes 4 Finally, it is evident from the grants to state units for such pur entire decision that the safety of poses as providing interpreters and patients whose welfare would be stated: affected by Ms. Davis during the clinical program, as well as the safety "Whatever effect the availability of of po’ential patients of Ms. Davis, was these funds might have on ascertaining of considerable concern to the Court. the existence of discrimination in some This extra factor may have resulted in future case, no such funds were the Court’s leaning toward a narrow available to Southeastern at the time interpretation of Section 504. Since respondent sought admission to its this patient safety factor will lie in nursing program." only a limited number of factual situa tions, there may be more favorable This footnote leaves the impression decisions in other cases brought before that perhaps the decision would have the Supreme Court. been different had financial aid been available to the college to accomplish In conclusion, the first decision inter the proposed modifications. preting Section 504 of the Rehabili tation Act of 1973 had positive and 3 Although the Court was cog negative aspects. Since the scope of nizant of the regulation, 45CFR Section the decision was of a limited nature, 84.44 which requires recipients of advocates can fairly easily distinguish federal funding to provide auxiliary future cases from this case of first aids to handicapped persons, it con impression. Advocates must, however, strued the term auxiliary aid to ex learn to select their cases for appeal clude the type of accommodation which to the Supreme Court in a careful Ms. Davis sought. Ms. Davis pro manner to avoid establishing prece posed that under the definition, dents that are indeed damaging to the "close, individual by a nursing in rights of persons with handicaps. structor" there could be protection of Finally, there should be a down play the safety of any patients whom she of the negative aspects of the case and attended during the training program. emphasis upon the positive aspects of Since the applicable regulation specifi the case so as not to discourage per cally lists interpreters for the deaf as sons who have handicaps from seeking an example of the type of auxiliary aid their rights under Section 504 and so which would be required to be pro that institutions covered by the Act vided, the Court could have analogized will be cognizant of their continued the close, individual services, since obligation to comply with it. indeed the purpose of the attention would be to serve as the ears for Ms. Davis. However, the court adopted a different approach and compared the proposed accommodation to the cate gory of activities which are not re quired by recipients of federal money - - services of a personal nature. Thus, advocates need to be cautious in the manner in which they

-14- Continued from Page 1 or die?" asked a St. Petersburg resi AT FIRST it seemed a kooky idea. dent. Another writer called FAE The group of dedicated opponents of members "weird pinko commies who executions planned to stage an electro think they are God." 4 cution of an unclaimed dog already sentenced to death by the SPCA. The Early Monday the carpenter began news media and the public would be assembling the small electric chair. invited in the hope that the ‘ vivid Within hours protesters arrived with descriptions of the pain and disfigure picket signs. By midday about 50 ment caused by the electricity would persons were marching around the site rally public opposition. chanting, "This dog must live. This dog must live." Few people paid much attention to the first announcement. The second press ON TUESDAY the execution site was so release said FAE has commissioned a crowded that St. Petersburg police carpenter in Pinellas Park for $150 to were called out to keep traffic moving build the electric chair for the dog. It on Fourth Street N. The Times was to be a 4foothigh oak chair with printed still another page of protesting four trong leather straps for the letters. Only one letter supported the front and rear paws. The announce execution. It was unsigned. ment mentioned in the final paragraph that a Tampa television station had Governor Bob Graham was asked about agreed to film the execution for broad the execution as he walked to a cast on its’ evening news. Cabinet meeting. "The execution of this dumb animal is making a spectacle The next day an indignant officer of of Florida in a senseless attempt to the SPCA said no dog would be re draw a parallel between my own efforts leased from the pound for such a cruel to carry out the law as it is written and senseless spectacle. Mayor and supported by the vast majority of Corinne Freeman told a press con Floridians and this gruesome side ference that no executions of dogs show," lie said. "I have full confi would be permitted on public property. dence in the ability of the good citi zens of this state to draw a clear line The president of FAE replied that his of demarcation between the lawful acts organization has made arrangements to of the governor’s office and the extra obtain a dog that had killed another legal events that are taking place in dog in a fight staged in Dade County. St. Petersburg." He said it was strange that human beings could be electrocuted on state Tuesday afternoon was busy. Mayor property but dogs could not be electro Freeman appealed to the citizens of St. cuted on city property, but that he Petersburg to condemn the execution. would move the execution to a vacant The Pinellas County Health, Department lot on Fourth Street N owned by a issued an order prohibiting the execu member of FAE. tion as a threat to public health. FAE went to Circuit Court, where a judge ON SUNDAY before the event The declared the health order invalid. Times printed a full page of letters decrying the execution. The news The SPCA announced that it planned paper said it had received 452 letters to seek prosecution of FAE under against it and none in favor of it. Chapter 828 of the Florida statutes, One woman in Seminole wrote that "this which prevents cruelty to animals. bizarre killing of an innocent dumb That sent FAE lawyers back to court. animal by a bunch of frustrated zealots The judge gave them an injunction has kept me awake for two nights." when they pointed out that the statute prohibits only the killing of an animal "Who elected these people to decide "in a cruel and inhuman manner." whether man’s best friend should live

-15- Walter Cronkite broadcast the story head. A sponge soaked with salt that night. He shook his head in water rested on its skull, a large disbelief as he read it, ending, "And screw in it connected to a black wire that’s the way it is, Tuesday, July 3, that ran down the back of the chair, 1979." and then inside the mobile home. Another wire was connected to an That night the protesters kept a vigil electrode strapped on the dog’s right at the execution site. leg.

THE MORNING of the execution was TENSION GREW between the angry, hot and muggy. About 1,500 persons agitatd crowd and the businesslike were crowded into the lot, including 14 members of FAE. At 7:45 a pushing newspaper reporters, five photo incident broke out. At 7:50 several graphers, two radio broadcasters and people left in disgust, saying they three TV camera teams. The crowd could not watch such well-planned, shouted and chanted constantly, "Stop cold-blooded cruelty. the killing." At 7:55 the president of FAE shouted A mobile home had been set up for for quiet. "It’s off," he said. "We death row. At 7 a.m. six members of have made our point. We never FAE dressed in black brought out the intended to do it. We just wanted to dog. The animal was placed upright make Floridians think about the value in the chair, its legs strapped of life - a dog’s life and a human securely. Body straps were not to be life." used so the public could see the dog’s body surge from the powerful charge In the confusion, two FAE members of electricity. The fur had been quickly unbuckled the straps holding shaved on the top of the dog’s head the dog. They lifted it to the ground and on its lower right leg. and patted its shaved head. The dog wagged its tail and sauntered back A small cap-like device made of bands inside the trailer where its breakfast of copper was fitted over the dog’s waited.

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