Plea Deals Lighten Jail, Court Time
Critics Charge Process Leads to More Arrests

By Jay Stapleton
Daytona Beach - News Journal Online
July 17, 2006

Juries Decide Punishment In Capital Cases

By Nancy Benac
Associated Press
February 27, 2006

Even the "trial of the century" was a hurry-up affair by today's standards.

In 1935, it took jurors just 11 hours to find Bruno Hauptmann guilty of kidnapping and killing the Lindbergh baby and to decide he should be executed.

Jurors now must clear many more hurdles to make the same leap from guilt to death.

After three decades of Supreme Court decisions designed to make the use of the death sentence less arbitrary, juries decide punishment in a distinct and elaborate penalty phase of state and federal trials, as in the case of terrorist conspirator Zacarius Moussaouri

This has given rise to a relatively new breed of defense advocates known as "mitigation specialists." They delve into the social history of criminals, looking for a troubled childhood, a hard life or any such information that might sway jurors to act with compassion.

A death sentence is far from a foregone conclusion once a jury assigns guilt in a capital case.

Since the federal death penalty was reinstated in 1988, in cases where juries have reached the point of choosing between life and death, they have imposed 93 life sentences and 49 death sentences, according to the Capital Defense Network, which supports defense lawyers in death penalty cases.

On state-level convictions where the death sentence is an option, juries choose execution roughly half the time, according the Death Penalty Information Center. It attributes the higher odds of a death sentence in state cases to lower-quality legal representation.

Moussaoui's sentencing in federal court will be anything but typical.

The confessed al-Qaida conspirator pleaded guilty to conspiring to fly planes into U.S. buildings, although he claims to have had no role in the terrorist plot of Sept. 11, 2001.

Jurors at Moussaoui's penalty trial will first decide whether his actions qualify him for the death penalty and, if so, whether he deserves it. If either answer is no, he will get a life sentence. Opening arguments and the first witnesses are set for March 6.

The sentencing phase of trials increasingly is divided into two parts. One determines if the crime warrants the death penalty; the second decides if that particular criminal warrants execution.

A trial's penalty phase sometimes is called a trial for life.

"It is a trial for life in the sense that the defendant's life is at stake, and it is a trial about life, because a central issue is the meaning and value of the defendant's life," law professor Gary Goodpaster wrote in 1983.

The two-part trial gives criminals a chance to plead for their lives, express remorse and explain their behavior after they have been found guilty something foolish to do before a verdict had been returned.

It offers a venue, too, for victims' loved ones to speak about the pain of the crime.

Defendants, the Supreme Court said in one case, must be treated as "uniquely individual human beings." The justices called for paying special attention to "the compassionate or mitigating factors stemming from the diverse frailties of human kind."

With that kind of guidance, lawyers now poke through a defendant's life history, sometimes going back three generations, looking for anything that might move jurors toward mercy.

The American Bar Association now says no defense team in a death penalty case is complete without a mitigation specialist.

It takes special skills to ferret out useful information because the defendant and family members may be embarrassed to acknowledge past abuse, neglect, drug use, mental problems or other mitigating factors.

"If I were on trial for my life, I'd want a dozen mitigation specialists to figure out ways to frame this trial in ways that would save my life," said Douglas Berman, a law professor at Ohio State University and a specialist on sentencing.

Moussaoui's lawyers would not discuss their strategy. Their legal filings indicate they plan to highlight Moussaoui's difficult life as part of a broken family with a history of mental illness and suggest he fell under the influence of radical clerics in London when his personal life was in disarray.

Prosecutors have laid out plans to call about 45 victims and relatives to testify in what is sure to be wrenching terms about the losses they suffered from the 2001 attacks.

In 1987, the Supreme Court banned victim testimony from capital sentencing trials, saying it could only inflame jurors and deny defendants a fair sentence. A more conservative court reversed course in 1991, allowing juries to take into account the suffering of relatives.

Defense lawyers say victims' testimony often is so compelling that it makes it hard for juries to make a rational decision on punishment and can turn sentencing hearings into memorial services.

"It may be more than the law should expect of the human beings who sit on juries," said capital defense specialist David Bruck.

Convicted killer Gary Gilmore, the first person executed after the Supreme Court reinstated the death penalty in 1976, did little to help his case during the half-day penalty phase of his two-day trial.

Gilmore, put to death by a firing squad in Utah in 1977, had been expected to express remorse when asked if he had anything to say. He said: "I am finally glad to see that the jury is looking at me."

The sentencing in 2001 of two men convicted in the terrorist bombing of a U.S. embassy in Africa, in which 11 people died, could well be more instructive for Moussaoui's defense team. The jury deadlocked twice on whether to impose the death penalty for Khalfan Khamis Mohamed and Mohamed Rashed Daoud al-'Owhali, effectively sentencing both followers of Osama bin Laden to life in prison just months before the Sept. 11 attacks.

The jurors had used lengthy "verdict sheets" to help them make their decisions. In al-'Owhali's case, for example, 10 jurors felt that killing him would make him a martyr, nine doubted it would relieve the victims' pain, five found life in prison a greater punishment and four took note that the defendant had been raised in a different culture and belief system.

Overall, fewer death sentences are being imposed nationwide 125 in 2004, compared with 300 in 1998.

Possible explanations include less confidence about verdicts, growing questions about the fairness of the death penalty, prosecutors less frequently seeking the death penalty and growing confidence that an alternative sentence of life without parole truly will keep someone behind bars forever.

Only three federal executions have taken place since the death penalty was reinstated, most notably that of Oklahoma City bomber Timothy McVeigh.

In case, jurors had weighed a series of aggravating and mitigating factors, the latter including the facts that he had no criminal record and had earned a Bronze Star in the first Gulf War. Jurors wept as victims and family members testified about how their lives had been devastated by the bombing.

McVeigh later said he thought the jurors "ruled too much on emotion," but he did not fight his sentence.

 High Court to Assess Sentencing in State

Bob Egelko
The San Francisco Chronicle
February 27, 2006

Uncertainty surrounds thousands of prison sentences in California after the U.S. Supreme Court announced it would decide whether the state's 29-year-old sentencing system violates a defendant's right to a jury trial.

The court's ruling in a case from Contra Costa County, due by June 2007, could require reconsideration of at least 3,000 sentences issued since 2004 and force the state to change its law, Gerald Uelmen, a Santa Clara University law professor, said Friday.

"It will be a mess to sort out,'' he said.

Some California prosecutors are changing their practices to cushion the impact of a possible ruling declaring the current procedures unconstitutional, said David LaBahn, executive director of the California District Attorneys Association. He said such a ruling would probably shorten some sentences but would not require wholesale changes.

"We can very quickly respond to it, either legally or legislatively,'' he said.

The state law, passed in 1977, prescribes three possible sentences for most felonies: for example, six, 12 or 16 years for continuous sexual abuse of a child, the crime in the case before the Supreme Court. The middle term is required unless the judge justifies the higher or lower term by finding specific factors, which do not have to be specified in the jury's guilty verdict.

The Supreme Court granted review Tuesday of an appeal by John Cunningham of San Pablo, who was sentenced to 16 years in prison in 2003 for sexually abusing his son between December 1999 and October 2000. The youth turned 10 during that period and claimed his father had sexual contact with him two to three times a week, sometimes accompanied by threats or beatings.

Cunningham, who was then a Richmond police officer, has denied guilt. He said his son had a history of lying and was upset about not getting a Christmas present. The Supreme Court, however, granted a review only of his sentence.

In imposing the upper term rather than the middle term of 12 years, the trial judge found, among other things, that the boy was particularly vulnerable, the crime was committed with great violence and Cunningham posed a danger to society, none of which had been determined by the jury.

Cunningham based his appeal on the Supreme Court's June 2004 ruling that overturned sentencing laws in the state of Washington because they allowed the trial judge to increase a prison term above the level prescribed by the jury verdict. That violated a defendant's constitutional right to a jury trial, the court said.

Defendants sentenced to upper terms in California -- about one-sixth of all felony sentences, according to the state Supreme Court -- challenged the state sentencing law after the 2004 ruling. But the state's high court upheld the law in a 6-1 ruling in June, saying the California statute preserved the jury's traditional role and imposed more limits on the judge's authority than the Washington system did.

Cunningham, whose case was among those affected, then appealed to the nation's high court. He remains under a 16-year sentence while the case is considered. His lawyer, Peter Gold, said the California law, like the overturned Washington law, denies a defendant "the right to a jury trial on factual issues that are directly relevant to the sentence he ends up with.''

If the Supreme Court agrees, every upper-term sentence issued since the original June 2004 ruling would have to be revisited, said Santa Clara's Uelmen.

"Unquestionably there will be thousands of cases impacted,'' said LaBahn, the district attorneys association director. But he said most of the sentences would probably be reaffirmed.

Before the state Supreme Court ruling in June, he said, some prosecutors' offices were taking the precaution of asking juries to make additional findings of facts that could lead to an increased sentence, such as the vulnerability of the victim or the level of violence involved in the crime. Those practices have been relaxed but are likely to resume now that the U.S. Supreme Court has again called the state system into question, LaBahn said.

A ruling in Cunningham's favor would also require California to change its law and prohibit judges from increasing sentences beyond the level permitted by the jury verdict.

Uelmen said several approaches would be possible. Juries could be allowed to decide all facts affecting the sentence, either at the guilt phase or in a new sentencing phase of the trial, he said. Or sentencing rules could be changed so that the upper term is required unless the judge makes findings to justify leniency, which would not affect the right to a jury trial.

But LaBahn said prosecutors would prefer a simple solution, largely modeled after a U.S. Supreme Court ruling last year that preserved the basic structure of the federal sentencing system by converting previous mandates into guidelines. Even if California's law is struck down, he said, the current range of three sentences could be maintained by eliminating the preference for the middle term and allowing the judge to choose freely among all three terms.

Although the judge in such a system would no longer have to make formal findings to justify a sentence, LaBahn said, "practically, they'll continue to make findings and let defendants know why they're being sentenced.''

WASHINGTON - Thousands of suspects unable to afford lawyers are wrongly convicted each year because they are pressured to accept guilty pleas or have incompetent attorneys, the American Bar Association says in a report.

The study by a committee of the nation's largest lawyers' group says legal representation of indigents is in "a state of crisis." These defendants are at constant risk of wrongful conviction and unjust punishment, including the death penalty, according to the study being released today.

"The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States," the study states. "All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights."

The ABA committee wants Congress and local governments to spend more money and create oversight groups to guard against shoddy legal representation. Judges also are asked to be more vigilant in ensuring defendants have competent counsel.

It has been more than 40 years since the Supreme Court ruled the government must provide legal counsel to indigent defendants who are charged with serious crimes.

The report comes one week after President Bush called for more training for lawyers who represent accused killers and greater use of DNA testing. That proposal is not on the agenda at the ABA winter meeting in Salt Lake City, which runs through Tuesday.

The ABA study points to people like Brandon Moon of Kansas City, Mo., who served nearly 17 years for the rape of an El Paso, Texas, woman before DNA tests determined he was not responsible; and Ryan Matthews, a Louisiana man who sat on death row for five years before he was exonerated.

(Country's Poorest Defendants At Risk of Wrongful Conviction -

You can assess the ABA  Report of the Standing Committee on Legal Aid and Indigent Defendants  can be accessed at  "Gideon's Broken Promise: America's Continuing Quest for Equal Justice,

Order in the Court By Brad Buck The Palatka Daily News April 4, 2004 PALATKA, FL - Plea bargains are part of the daily grind of any courthouse. Without them, nothing would get done, local attorneys say. It's a little like an episode of Law and Order. Imagine detectives Lennie Briscoe and Ed Green catching the "perps" they suspect committed a crime. They take the case to Assistant District Attorneys Jack McCoy and Serena Southerlyn. The prosecutors pore over the information and decide whether to press charges. If they do, they may later decide that a plea bargain is the best way to go. Usually that part comes between 10:30 and 11 p.m. in the TV show. In the Putnam County Courthouse, that could mean anytime shortly after the alleged crime is committed and just before or even during a trial. In fact, most of the time, the defense and prosecution come to a plea deal. More than 90 percent of criminal cases nationwide end in plea agreements, according to the American Bar Association. Local prosecutors say the percentage is probably higher here. Rarely do cases go to trial. The Palatka office of the state attorney for the Seventh Judicial Circuit, which includes Putnam County, handles more than 10,000 criminal cases each year, records show. Of those, about 2,000 are felonies, court records show. The office took about 25 felony cases to trial last year, said Assistant State Attorney Robin Strickler. After reviewing evidence, Strickler and his staff do not file charges in some cases. They may file charges and later dismiss them, and sometimes a judge will throw out the charges. Then around the thousands of plea deals, some cases go to trial. Strickler, division chief in the Palatka office, said many factors are taken into consideration: The evidence available, the seriousness of the alleged crime and the chances of winning the case before a jury are some of the factors. "We analyze the evidence, talk to the victims, look at the defendants' criminal history, then we try to make a reasonable offer," Strickler said. "Of course, we look at the nature of their crime and whether it's in the state or the victim's interest" to go to trial or offer a plea deal, he said. "You're as honest as you can be. You can predict pretty much what's going to happen - not with 100 percent accuracy." Some pleas happen right before a trial is about to start. That happens because, even though everyone has reviewed the evidence and potential testimony, sometimes a witness backs out on the state and decides not to testify, said Bennett Ford, senior attorney in the main office of the Public Defender for the Seventh Judicial Circuit in Daytona Beach. Sometimes the reverse could happen: Someone the defendant didn't think would testify against him decides he now will, Ford said. Bill Bookhammer, an assistant public defender in the Palatka office, said of plea bargains: "It's pretty much a necessary part of the system. It would be impossible to try every one of these things." Judges order prosecutors and defense attorneys to meet before a client is arraigned, Bookhammer said. That is so both sides can go over the evidence and testimony to see if an agreement can be worked out, he said. "Sometimes, clients prefer a negotiated settlement rather than taking their chances" before a jury, Bookhammer said. "It doesn't mean we have a weak case. Clients need to make an informed decision." Bookhammer said if he went into court without first discussing a plea agreement with his clients, he would feel remiss in his duty. "Clients are scared of the system. Sometimes they want to just get it over with. The common perception is, if you go to trial and lose, the judge is going to throw the book at you." Normally, the state will ask for a stronger sentence if they go to trial, but the judge won't always hand one down, he said. Defense attorneys and prosecutors discuss the cases with each other. Defense attorneys then talk about the case with their client and the prosecutor talks with the alleged victims and their families. "I will ask them, 'What do you want out of this?’" Bookhammer said. "'What are you willing to accept? What do you want me to shoot for?'" Strickler and his staff will lay out the parameters of the state sentencing guidelines that the judge must obey and see if victims and their families are willing to accept that. That sentence could be 15 to 30 years and the victim needs to understand that once they say "yes," that is their final answer. Families of defendants may wonder why someone got, say, two years in prison, while someone else got probation for the same crime, Bookhammer said. "Every case is so unique," he said. Additionally, he cannot answer most of the families' questions because that would violate attorney-client confidentiality. Sometimes, the state attorney's office offers a plea; sometimes the defense attorneys offer a plea. Ford said the "ultimate plea" is life in prison vs. the death penalty. That would happen in capital cases, like murder and rape. Ford, who has worked in the Seventh Judicial Circuit for 23 years, said his most recent capital case in Putnam involved Curtis Daniels, a Palatka man who strangled his godmother three years ago. "That was a sure death penalty case," Ford said. "It had all the aggravating circumstances. What we found was that he was borderline mentally retarded." Daniels will spend the rest of his life in prison after pleading guilty to first-degree murder in the strangling death of Lula Mae Thorpe. If the case had gone to trial, State Attorney John Tanner, who was going to prosecute the case, said he was going to seek the death penalty. With the guilty plea, Daniels avoided the possibility of the death penalty. Assistant State Attorney Patrick McClintock said after the plea and sentencing that the state agreed not to go to trial and pursue the death penalty because Daniels' IQ is low. Higher courts have consistently ruled that people who are mentally challenged cannot be put to death, McClintock said. "What we want to emphasize is that he's doing life without the possibility of parole," Strickler said at the time. "He will never be out of prison." So both sides agreed a plea deal would be in Daniels' best interest. Some people don't want to go through the aggravation of a trial with the potential that the outcome might be appealed, Ford said. They would rather get closure on the case and make sure the defendant definitely goes to prison for a certain number of years. Prior to 1970, in the case of North Carolina vs. Alford, defendants could only plead guilty, which meant they admitted they committed the crime for which they were charged. The Alford decision allowed defendants to plead no contest. In pleading no contest, the defendant sees evidence stacked against him and thinks it's in his best interest to plead, but he is not admitting guilt, nor should he be assumed guilty of the crime. People will often take the chance between a 15- to 30-year sentencing parameter over taking their chances on going to prison for the rest of their lives. A recent Putnam County case illustrate plea bargains. An Interlachen man, seen by some as an ideal family man and citizen, but by others as the man who took away a father, was sentenced in January to 15 years in state prison for reportedly shooting his daughter's boyfriend to death in November 2002. Circuit Judge Ed Hedstrom sentenced Eugene Townsend, 50, after hearing from Townsend's family, friends and other character witnesses in the Interlachen area, as well as family members of the victim, Billy Morris, 27, also of Interlachen."It was within the sentencing guidelines," Strickler said after the court hearing. Townsend pleaded no contest in October 2003 to manslaughter. Under his plea agreement, Townsend faced 15 to 30 years. Putnam County sheriff's deputies had charged Townsend with first-degree murder in Morris' fatal shooting the night of Nov. 15, 2002. There were allegations in court at Townsend's sentencing that one of Townsend's daughters grabbed the gun from her father as he tried to fire a warning shot and that that's how the bullet went from Townsend's gun to Morris' face. "I grabbed the gun, and that's when it discharged," Townsend's daughter, Christina, testified. Christina Townsend did not show up for the grand jury hearing in 2002, when her father was indicted for first-degree murder. She originally told sheriff's investigators her father had shot Morris. Then she changed her story, Strickler said. People from Townsend's and Morris' family were both sullen or sobbing after the sentence was handed down, but attorneys for both sides - Strickler and defense attorney Ronald Clark - said there would be no winners. "I feel for victims," Strickler said. "That why I'm in the business."

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