The Other Victims Of The DP

[mustangsally]

The Other Victims
For every inmate on Death Row there is a mother, a wife, a sister, a son grieving in slow motion. They are the other victims.

BY BECCI ROBBINS

Margaret Abbott's son is on Death Row. She sees him for two hours once a week through a glass partition. Visiting days are bittersweet. Much as she misses her son, it is hard to see him like that, suspended in the strange netherworld between life and death. In many ways, she lives there with him.
Abbott's friend Della Martin is one of the few people who really understands what she is going through. Martin, not her real name, is also the mother of a Death Row inmate. Her son was arrested in 1991, and three years later was sentenced to die. Since then Martin has grown emotionally exhausted. "I wish God would come and take him away."

Abbott nods. "That way it would be over," she says. "We would have closure."

They could visit their sons' graves in peace — with no guards, no bars, nobody watching. They could finally get off the freakish roller coaster they have been riding for nearly a decade. It has been, they say, a terrifying trip.

"What lots of people don't realize is that we become victims too," Abbott says. "I would give my own life to change what happened that night. My grandson lost a father. The victim, her son lost a mother. I cry when I think of the other side, too, because we all become victims."

The two friends, and Martin's 12-year-old granddaughter, are sharing the back booth at a Waffle House off I-20 in Columbia. They meet here each Thursday morning to carpool to the maximum security prison near Ridgeville, more than an hour away.

Today, just back from the prison, the strain is palpable. South Carolina is suffering record August heat and nerves are raw. Abbott, who lives in Gaston, is nearly home, but Martin still has the drive back to Augusta, where she lives with her granddaughter and another son.

"Right now I am very depressed, very angry at everything and everybody," she says. "At this point I just feel hopeless, and that's a horrible way to feel. It's hard. Very, very hard."

Martin is still processing recent news that her son lost his appeal, and she is in a gray mood.

Margaret Abbott and her son, Michael Charping, clown at Folly Beach in 1989, just months before he was arrested for murder.

"I've been where she is," Abbott says. "It's like having a terminal illness."

The long drives each Thursday wear on Martin, but they are her last link to her son. "When you know the state is about to execute your child, and you only get to see him once a week," she says, "like I told the district coordinators, if they would just let me move in with him I would."

Martin's granddaughter stares into her lap, her dark hair almost hiding the tears streaming down her face.

On another day, in the middle of a fast food restaurant's lunch crowd, it is Abbott who suddenly begins to cry. She is flipping through a scrapbook of family photographs. There is one of her son, her only boy, in his Little League uniform, smiling, sun-bleached. A Polaroid shows him all grown up, carrying his own son on his shoulders. There is a professional portrait of Abbott and her son, with him standing behind her, his hands on her shoulders. A later photo captures them in an almost identical pose, but the background, instead of a lush studio drape, is the stark white interior of a state facility.

She apologizes for her tears, saying that for the most part she has learned to control her emotions. It wasn't always so. After her son was sentenced to die, Abbott spent four years in a deep depression. She didn't open her mail, she paid her bills late and left the house only to go to work.

"My marriage went down the drain," Abbott says. "It destroyed my family." They were never the Cleavers; Abbott married five times, to men who, as was her father, were alcoholic. She regrets the marriages but not what they made possible. "I got five great kids out of it," she says. "We didn't always have a lot of money, but my kids knew I loved them."

Her four daughters, who she says remain close, were devastated when their brother went to prison. They believe him when he says he doesn't remember killing anyone. Abbott says her son was blinding drunk the night the drug deal he was involved in went horribly wrong.

Two friends were with him. One is serving a life sentence; the other, after testifying against his buddies, walked free.

"The whole trial was a nightmare," Abbott says. "No matter what I said the lawyers would turn it around to make it different. They talk so much legalese. It's an intimidating process, totally confusing."

While she was prepared for the worst, and knew there would be an automatic appeal, Abbott was not prepared to hear the sentence when it was read out loud. Upon hearing that her son was sentenced to die in six weeks, Abbott collapsed. "My daughter had to carry me out," she says.

The seemingly endless hours in court hardened Abbott. "It has destroyed the faith I had in the system. I always knew it wasn't great, knew that if you had money you could get off, but I didn't know all the tricks that were pulled, actual lies that were told. It floored me."

Abbott says she has learned a lot about how things work. One: "Murderers come from all socioe-conomic levels, but the higher you go, the more chance you have of getting life in prison rather than the death penalty. If you're poor you've had it."

Two: "What I didn't know before is that one of the questions they ask a jurist is `Can you give the death penalty?' If you can't, you're excused. So it's a stacked deck."

Three: "A lot of this turns out to be a little bit on the political side. Everyone wants to be attorney general."

The more Abbott learns, the angrier she gets. After nearly a decade battling the criminal justice system, Abbott has turned into an activist, a consciousness that came fairly naturally. "I've always fought for the underdog, always felt bad for people who didn't have."

She started by just helping other relatives of inmates navigate the prison bureaucracy. "Once I knew there was a problem in the system," she says, "I knew people needed help getting through it. You feel so lost and alone."

When Abbott's son was sentenced to die, women who had been through her nightmare reached out to help her cope. "When this happens you almost feel like an unknown human being," Abbott says. "You become faceless, you become this monster, but we could be your mother, your coworker, your favorite aunt, your best friend. Others in my situation see me as a person, as a person who has been hurt. They gave me my face back."

Abbott and Martin have became involved with the state and national Coalition to Abolish the Death Penalty, and stay in touch with grass-roots activists from across the country.

In South Carolina, they have helped organize IFF ONLYS (Inmates, Family, Friends: One Network Ladder for Your Support), a network of organizations and individuals opposed to capital punishment. They hope the network will serve several roles: support group, advocacy organization and information resource.

The members also want to work to restore the privileges that inmates were deprived of during prison chief Michael Moore's administration. Moore, who last year was named secretary of the Florida Department of Corrections, instituted sweeping changes in South Carolina's 32 prisons. Moore's get-tough policies sparked this state's bloodiest prison uprisings in 20 years, with six prison guards and 32 inmates injured.

"We used to have personal contact visits; they took that away from us," Martin says. "We used to be able to send Christmas packages; they took that away from us. They used to be able to do things like painting and basket-weaving to occupy their minds. Our telephones doubled and tripled in cost. I don't know how much more damage [Moore] could have done."

While death penalty proponents often challenge those who oppose capital punishment with, "How would you feel if it were your loved one who was murdered?" Martin's answer might surprise them.

Twenty years ago, long before she lost her son to Death Row, Martin lost a daughter to murder. "It was unexpected — painful," she remembers. "She was my only daughter, and she was the light of our lives. Her husband killed her."

The murder of Martin's daughter devastated the family. Instead of being bonded by the tragedy, they were fractured by it. Martin's husband wanted revenge, but she did not.

"I have always felt that the person who killed my daughter, that his death would never have brought her back," Martin says. "I couldn't waste my time, my energy, on hating him.

"My thing has been going to her grave and being thankful she's in a better place. Hatred just isn't going to get you anywhere. I saw what it did to my husband, I saw what it did to her two brothers, and it was not nice. They never did heal."[/red]

Martin, 74, says she had always looked forward to retiring and finally doing some travelling. "I had big plans." She would leave her husband behind and travel to all the places she had dreamed of seeing. Cheated of that, the only traveling she does now is to a maximum security prison in the middle of nowhere.

[antideathpen67]

Della Martins son has since been murdered by the State of South Carolina right in front of her...

[sclcookie]

Never forget the Other Victims

hugggz,
Suzanne

[sclcookie]

Dear Friends,

FYI , here is the testimony of Murder Victims' Families for Human Rights Board
Members Robby Meeropol and Bill Babbitt before the Massachusetts Legislature
yesterday. They did an incredible job of putting a human face on executions
and the families of the executed as part of the panel of witnesses who spoke in
opposition to the reinstatement of the death penalty.

Best,

Renny Cushing


Renny Cushing, Executive Director
Murder Victims' Families for Human Rights
617 930 5196
[e-mail]
www.murdervictimsfamilies.org


Massachusetts State House July 14, 2005

Testimony of Robert Meeropol 413-529-0063

My name is Robert Meeropol, I grew up in New York State, but I have been
a resident of Massachusetts for 35 years. I live in Easthampton. I am an
attorney, although I am not in private practice. I am here today as a
private citizen and in my capacities as Executive Director of the
Rosenberg Fund for Children, and as a Founding Board Member of the new
organization, Murder Victim’s Families for Human Rights (MVFHR).

I have a personal relationship with the death penalty. I’m Robert
Meeropol now, but I was born Robert Rosenberg. My birth parents, Ethel
and Julius Rosenberg, were executed in Sing-Sing prison on June 19^th ,
1953 when I was six. My name was changed when Abel and Anne Meeropol
adopted my brother, Michael, and me after the executions. I believe my
brother and I are unique in American history. We are the only people to
have both their parents executed by the government.

You might wonder why am I addressing you on MVFHR’s behalf. In MVFHR we
oppose the death penalty and believe state-sponsored executions, the
premeditated killings of human beings by the state, are murders. I
address you as a murder victim’s family member. We in MVFHR also believe
extra-judicial as well as judicial killings violate Article 3 of the
Universal Declaration of Human Rights, and thus constitute human rights
abuses.

I am not going to address the politics of my parents’ case, the
overwhelming body of evidence that they were wrongfully executed
regardless of whether one or the other of them may have done something
illegal or why for almost 30 years after their deaths I supported the
death penalty, particularly for those who engineered my parents’ murder.
I’m also not going to discuss the many reasons why I oppose capital
punishment today. Instead I’ll focus on one aspect of capital punishment
that others may not have addressed.

As a child who survived his parents’ execution and as an adult who works
with many children whose parents are in prison or, in one case, on death
row, I have an unusual perspective to share with you. I was three when
my parents were arrested and six when they were executed. I believe
you’ve heard little or no testimony about capital punishment from the
perspective of a child who has had one or both parents executed.

How does a child who has just turned six understand such events? How
does something like that affect a six-year-old? How much do I remember?
Actually I remember a lot.


I don’t remember my parents’ arrests. In fact, my earliest distinct
memories of my parents are of visiting them on death row. But I have
clear memories of the last week of my parents’ lives. On Monday June 15,
1953, when the Supreme Court adjourned for the summer, my parents were
scheduled to die that Thursday. On Tuesday a special petition was
presented to Justice Douglas as he left for vacation. On Wednesday
Douglas stayed the execution and went on vacation. On Thursday the
Supreme Court was recalled into special session. On Friday morning
Douglas’ stay was overturned by a 6-3 vote. My parents were executed
that evening, Friday June 19, one minute before sundown so as not to
“desecrate” the Jewish Sabbath.

Although I couldn’t read the newspapers, I saw this on TV and heard
about it on radio. My six year-old’s interpretation of these events was
that the Supreme Court Justices asked my parents’ lawyer to give them
ten reasons why my parents should not be killed and he did. So the
Supreme Court stayed the execution. But then they recalled the court and
asked the lawyer for an eleventh reason, and he was unable to provide
it. So my parents were killed. I think I confused repeated radio
references to “eleventh hour appeals” with giving an eleventh reason. I
pretended not to understand so adults would not fuss over me. In some
ways I did not understand, but I got the essence.

What kind of impact did this have on me? Clearly, I didn’t completely
understand what was going on, but I had a sense that “they” were out
there, “they” were very powerful, and “they” were attacking “us.” Of
course I didn’t know exactly who “they” and “we” were and what these
groups represented. So I had a generalized sense of anxiety, an
incomprehensible sword of Damocles hanging over me. I was frightened,
angry and grew up with a suppressed need to attack those who had
attacked my family. I survived because a supportive community surrounded
me, but what about other children who do not have such a support system?

This raises a disturbing question: If Massachusetts passes any death
penalty statute [and what a horrifyingly absurd concept our governor has
introduced – a “gold standard” of killing] what will the impact be on
children whose immediate family members are executed or are placed on
death row? No one can deny that it is qualitatively worse to have a
family member on death row or executed than to have a family member in
prison. But that’s not much of an answer. You must have a better answer
to this question, because as legislators, you have a solemn obligation
before passing a law to understand its impact. That obligation becomes
even more serious when you are dealing with matters of life and death as
you are here.

Before enacting capital punishment legislation, shouldn’t you consider
its impact on children with family members on death row? Nationally,
there is an apparent disregard for children who have a family member on
death row or who’ve had a family member executed. We don’t even know how
many children have an immediate family member on death row in the United
States today. Worse, we don’t know the effect that having a parent
executed will have upon their impressionable lives, and cost society may
pay, for that impact. As far as I can tell no one has bothered to study
this even though these children are all innocent victims of the state’s
efforts to kill their loved ones.

I believe most of you before me oppose this bill. I’m honored to call
you my representatives. This is one reason why I’m so proud to call
Massachusetts my home. But for those of you who are considering bringing
back state-sanctioned ritualized killings in a gold wrapper, shouldn’t
you at least study this issue first? It is past time to realize such
“collateral damage” is yet another powerful reason to keep the death
penalty out of Massachusetts.

[sclcookie]

Testimony of Bill Babbit before the Massachusetts Legislature, July 14, 2005



My name is Bill Babbitt. I’m a member of Murder Victims’ Families for Human
Rights. I grew up in Wareham, and my brother Manny is buried there now. Manny
was killed in 1999. I have a copy of his death certificate. If you look
closely at the certificate, you can see that under “cause of death” it says
“homicide.” Manny was executed by the state of California, and execution, like
any kind of killing, leaves a grieving family behind.

Manny served two tours of duty in Viet Nam. Here’s a picture of Manny at age
18, in combat fatigues. During the siege at Khe Sanh, Manny picked up pieces
of his fellow Marines. Then he got wounded and medevacked out in a helicopter
on a pile of dead bodies. Ever since he returned home, he suffered from
post-traumatic symptoms. It was like he never really left Viet Nam. He would
hallucinate; he would act as if he was still on the battlefield.

The Bridgewater State Hospital here in Massachusetts diagnosed Manny as
paranoid schizophrenic. In 1980, after he was released from Bridgewater, Manny
came to live with me and my wife in Sacramento. We gave him money and tried to
help him get work. But I was worried. He was acting strange. I saw that his
demons were coming to the surface.

Then in December something terrible happened. A woman in our neighborhood
named Leah Schendel died during a robbery of her home. The newspapers said
that she had a heart attack during the robbery.

I found a cigarette lighter among Manny’s things with the initials L. S. on it.
My wife and I found coins stashed around the house, and I remembered that the
newspapers had said Leah Schendel had been playing the nickel slots in Reno
just days before the murder. The terrible thought hit me: I think Manny was
responsible for this woman’s death.

My wife and I agonized over what to do. One option was to give Manny a bus
ticket and just get him out of there. But if I did that, I would have his
victim's blood on my hands. Was there another Leah out there who might become a
victim of my brother and his demons?

I couldn’t live with that. I went to the police and told them what I suspected.
They promised me that Manny would get the help he needed. I agreed to help
lead them to Manny. After they arrested Manny, an officer said to him, “You’re
not going to go to the gas chamber or anything like that.’

I believed that. My mother believed it. We never really thought he would be
executed, right up until the last half hour when I watched my brother be put to
death at San Quentin on May 4, 1999.

This is a picture of my mother during the vigil that took place while Manny was
being killed. I don’t know if I can explain to you what it does to a mother to
know that the state is taking the life of one of her children. This is a
picture of Manny in Marine Corps dress blues lying in his casket.

For the rest of my life I have to live with the fact that I turned my brother
in and that led to his death. I turned him in because I was so afraid that
Manny’s demons would lead to more killing. I didn’t want there to be more
victims. What I want you to understand is that executions create more victims,
too.

I wish we had been able to get Manny the help he needed. I wish that as a
society we would devote our resources to treating people like Manny instead of
devoting those resources to imposing the death penalty and creating more
funerals, more grief.

I’ve always been proud that my home state doesn’t have the death penalty. I
plead with you to keep it that way. In the name of the families that
executions leave behind, I ask you not to bring the
death penalty to Massachusetts.

[janet]

The 'other victims' are not often given much thought. Although, there's little I can add but my heartfelt condolences to both Robby Meerapol and Bill Babbitt, the human face they put upon those loved ones who were executed should give anyone in favour of the death penalty pause for thought. Violence begets violence and creates so many innocent, usually faceless victims.

[oztash]

Thankyou for posting this, was very moving...A true human account of the victims of the dp, and a strong case for the end of the dp..

Love Tasha

[mikebook]

Yes, but what of the tragedy inflicted upon the families of the victims of the inmate? The people that lost a family member? I would say that they lost the most. I am also sure that they do not care one bit about the family of the person that killed their loved one. There are some that can forgive, but the inmate still has to face justice, which is the Death Penalty. I realize that this may anger some people, but the truth is the truth...

When criminals stop using the threat of violence and murder to get their way, I will be the first to demand the stopping of the death penalty. But until then I will support its use on people that have killed other people or conspired to murder others. The victims of the criminals deserve justice and if the justice is the death, then that is the justice the inmate faces. He gets a judge, jury, a lawyer, a trial, and many appeals. Which is far more than the appeals the dead received at the hands of the inmate...

[tinachurch]

SOON the "OTHER VICTIMS" will have a voice. Stay tuned. It's all underway. Richard Cartwright never died in vain--We will all see how much of an impact he will ultimately have on fighting the DP.

Tina Church

God Bless Rich and his precious mother Irene and little Rickki!

[sclcookie]

tinachurch said:

SOON the "OTHER VICTIMS" will have a voice. Stay tuned. It's all underway. Richard Cartwright never died in vain--We will all see how much of an impact he will ultimately have on fighting the DP.

Tina Church

God Bless Rich and his precious mother Irene and little Rickki!

[CCADP]

Tina has been doing amazing work in this area all by herself for over a decade!

Go; Tina; Go Tina !

[janet]

It's impossible to say who has lost the 'most' ... these are human lives about which we're speaking. The loss of life is the loss of life. There are family members on both sides who lose. Justice isn't the death penalty. It can never be sanctioned, nor should the families of victims be permitted to give 'Victim Impact Statements'. A Court of Law is not a place whereby emotion should be permitted. It sways juries and is not the venue for venting personal emotion. Since we are each human and affected by emotion, I strongly feel that there must be another venue for victims of crime to express their anger and grief. It sounds harsh, however, the Courtroom is a place for impartial, dispassionate review of factual matters.

[mikebook]

Yes. And the person that caused the most pain is the person that took those lives. Victims family and friends should be allowed to speak, to talk of the grief and sorrow, of what that person meant to them.

[sclcookie]

mikebook said:

Yes. And the person that caused the most pain is the person that took those lives. Victims family and friends should be allowed to speak, to talk of the grief and sorrow, of what that person meant to them.

What makes is worse is that's not true for every death row inmate.

Here's are some places for the families of murder victims can be heard:
www.mvfr.org/
www.willsworld.com/~mvfhr/

I hope these people can help the victims family.

hugggz,
Suzanne

[sclcookie]

The Death Penalty's Other Victims

By Dave Lindorff, Salon. Posted January 8, 2001.

Ellen Reasonover found out the hard way that no good deed goes unpunished. When the St. Louis resident approached police with information she thought might help them catch the killer of a gas-station attendant, they arrested her instead, based on highly circumstantial evidence.

Constructing a case against her by relying on the testimony of two jailhouse snitches, the state sought the death penalty. An all-white jury convicted the young black woman, and all but one member of the panel voted to have her executed. Earlier this year, a federal judge threw out her conviction, ruling that the witnesses -- with the knowledge of the prosecutor -- had fabricated their testimony. So after serving 18 years in prison, Reasonover was released.

Reasonover's jury was ready and willing to believe the prosecutor's case at least partly because, as in all capital cases, the jury pool had been carefully, and legally, purged of anyone who had doubts about the death penalty -- a category that conveniently and disproportionately includes African-Americans and women. The very people many experts say are most likely to question prosecutors' arguments and hold to a presumption of innocence -- death-penalty opponents -- had been systematically kept out of the jury box.

A majority of Americans still back the death penalty, but polls have shown a steady erosion in support. A Gallup poll done in February, for example, indicated that 66 percent support it, down from 80 percent in 1984. Moreover, with growing numbers of people exonerated in the past few years after long prison stays, many people are apparently also losing confidence in the integrity and fairness with which it is administered.

The fairness issue became a leitmotif in the presidential campaign. Although both presidential candidates said they supported capital punishment, the media focused on Bush's record of presiding over more executions than any previous Texas governor, including 40 just this year, and on the apparent inequities in the state's judicial system. During the second debate, Bush seemed to grin when discussing the death penalty -- an action that prompted a pointed question from a member of the audience during the third and last debate.

The questions about capital punishment have prompted some states to take some precautionary steps. In Illinois, where more than a dozen death-row inmates have been proven innocent since 1977, the Republican governor, George Ryan, announced a moratorium earlier this year. Other states are studying the issue and facing growing calls for similar moratoria and for automatic access by condemned convicts to DNA testing, which in some cases has conclusively exonerated inmates.

Yet despite this new concern, a major and controversial element of the system is being largely ignored: the right of prosecutors and judges to eliminate, "for cause," any potential jurors who say they might not be willing or able to vote for death during the penalty phase of a murder trial.

Whatever one might think about the death penalty itself, the trouble with screening out death-penalty skeptics -- a process known as "death-qualifying" the jury -- is that it does a lot more than simply eliminate jurors opposed to capital punishment. It makes for juries that tend to be white, male and significantly more likely to convict the person accused of the crime in the first place. In a 1968 landmark study, Hans Zeisel, a law professor at the University of California at Berkeley, found that death-qualifying juries led to an 80 percent increase in the conviction rate.

"When you excuse all the people who are opposed to the death penalty, it's a kind of law-and-order screening device," says Craig Haney, a professor of psychology and sociology at the University of California at Santa Cruz who has been polling jurors and studying jury selection for 35 years. "You end up with a group of people who evaluate evidence a little differently, who are more likely to find evidence to be incriminating, and who generally don't even understand or accept the concept of presumption of innocence."

But proponents of death-qualifying say that if there were no such procedure, nearly every jury would likely include one or more members who would veto any death-penalty conviction, essentially rendering void the capital punishment statutes of 31 states and the federal judicial system. Moreover, they add, defense attorneys get to excuse any potential juror who publicly admits to an inflexible intent to impose death on anyone convicted of murder, regardless of mitigating circumstances or the instructions of a judge.

But defense attorneys counter that since not many potential jurors are willing to state such a position so bluntly, few actually get excluded on those grounds. And they stress that the effects of death-qualification on the racial composition of juries can be quite stark.

In a 1994 study, for example, Haney and coauthors Aida Hurtado and Luis Vega reported that while minorities accounted for 18.5 percent of the people in the California jury pools they examined, they represented 26.3 percent of those excluded from jury panels through the death-qualifying process.

A North Carolina jury study conducted in 1982 found an even greater disparity, with 55.2 percent of black potential jurors being excluded during the death-penalty qualifying process in contrast to 20.7 percent of whites. Studies also indicate that women tend to be excluded, since they are also more likely to oppose the death penalty.

The net effect is that -- despite Supreme Court rulings that excluding jurors because of race is grounds for a mistrial -- prosecutors can achieve much the same result without specifically using race as the criterion. "Death-qualifying a jury basically eliminates half of the potential black jurors," agrees David Bruck, a South Carolina defense attorney who specializes in death-penalty cases. "It's quite an ethnic cleansing that goes on and it is very disturbing."

The right to excuse jurors for cause is important because both sides in a criminal case are granted only a limited number of so-called "peremptory challenges," which allow them to dismiss potential jurors without having to offer any reason at all.

Prosecutors know that death-qualifying a jury is a great way to help ensure a conviction. That, say experts, is one reason why many of them -- particularly in jurisdictions with high death-penalty rates like Texas, Florida, Illinois, Virginia, California and Pennsylvania -- deliberately overcharge in murder cases even where they know the death penalty is not appropriate or likely.

In other words, the process can lead to higher conviction rates -- and most likely to more wrongful convictions -- not just in capital cases, but in other murder cases, too.

In Philadelphia, District Attorney Lynne Abraham seeks the death penalty from the outset in an astonishing 85 percent of murder cases, according to a study from the city's public defender's office. One reason for the Philadelphia district attorney's predilection for capital cases may be a jury selection training tape prepared in the mid-1980s by then Assistant District Attorney Jack McMahon.

In that tape, which is featured in the appeal by black journalist Mumia Abu-Jamal of his 1982 death sentence for the killing of a white Philadelphia cop, McMahon urges prosecutors to seek to impose the death penalty in as many cases as possible. That way, he explains helpfully, they then get the benefit of death-qualifying jurors, and with their peremptory challenges they can remove even those who express vague or minor concerns about imposing the ultimate sanction.

Abraham's office did not return repeated phone calls seeking comment.

Ironically, McMahon, now in private practice, has become a vocal critic of the very practice he once championed. "The reason district attorneys like Abraham so frequently seek the death penalty is that they get a conviction-prone jury," says McMahon, who now defends clients in capital cases. "Now they'll all tell you they don't do that, but they're full of crap and they know it. No one who's been working in this business would say that if they were honest. The whole process of death-qualification is terribly unfair."

McMahon insists that he hasn't had a change of heart. "I've always known this to be true," he explains. "But when you're a prosecutor you do what works to your advantage as a prosecutor. It's permissible, so you take advantage of it. But I will say that now that I'm on the defense side, I can see what a handicap it is for the defense."

In Abu-Jamal's 1982 murder trial in Philadelphia, the jury pool was in fact gutted of blacks during the death-penalty screening conducted by prosecutor Joseph McGill, despite objections raised by the defendant's attorney. In a city that is almost 44 percent black, the former Black Panther ended up with a single African-American on the jury that convicted him and sentenced him to death. In addition to screening out more than 20 black jurors through the death-qualification process, McGill used his peremptory challenges to eliminate another 11 black potential jurors who hadn't expressed any particular concern about the death penalty.

The National Association of Attorneys General takes no position on the issue of the fairness of death-penalty qualifying of juries.

But one academic expert who does defend jury qualifying in death-penalty cases is Paul Cassell, a law professor at the University of Utah College of Law and a former federal prosecutor. A death-penalty advocate who served as an attorney for the families of victims of the 1995 Oklahoma City bombing, Cassell questions the accuracy and significance of the jury attitudinal surveys cited to challenge death-qualifying.

"I am not sure that juror attitudes carry over into the convicting or sentencing of people," he says. While conceding that he is not aware of any studies refuting the claim that death-qualified juries are more conviction-prone, he insists that the argument remains unproved.

Meanwhile, critics of death-penalty qualifying say the problem is not just that the impaneled jurors are more inclined to listen to prosecutors. The very process of death-qualifying, they say, can bias potential jurors against the defendant.

Consider this. In any other criminal trial, whether it's petty larceny, assault with a firearm or attempted murder or rape, attorneys are expressly barred from discussing possible penalties before or during the trial. The reason: Courts have long felt that discussing the penalty could encourage the jurors to start assuming that the defendant is somehow guilty.

"Yet in death-penalty cases, where the issue of guilt or innocence is most crucial, we go ahead and discuss the ultimate penalty every time before the trial," says Santa Cruz psychology professor Haney.

We all laugh when the Queen of Hearts in "Alice's Adventures in Wonderland" says, "Sentence first -- verdict afterwards." But in this country's capital trials, that's basically what's going on.

The qualification process itself can become extremely contorted and bizarre. Once potential jurors have expressed opposition to the death penalty, the defense attorney -- seeking to salvage that person for the panel or at least force the prosecutor to use up a peremptory challenge -- often postulates particularly heinous murder scenarios so they will concede that under some extreme circumstances they might indeed consider voting for death.

Take Betty Brown. The 67-year-old black Philadelphia woman was thrown off the panel of prospective jurors in the Abu-Jamal trial after she said she opposed the death penalty. Trying to keep her on the jury panel, a defense attorney asked how she would feel about the death penalty if one of her two sons had been murdered. "'I don't even like to think about something like that happening to my boys,'" she recalls saying. "But I told the judge, 'Killing a murderer wouldn't bring back my son'"

Brown says she thinks it is "simply wrong" for people like her to be excluded from juries for their beliefs. But given her firm opposition to the death penalty, might she have been unable to find the defendant in that capital case guilty? "No, no," she says flatly. "If he's guilty, he's guilty, and I'd say it. And I was willing to serve."

While many potential jurors are kept off panels because of their anti-death-penalty beliefs, Haney reports that some impaneled jurors who are squeamish about imposing the death penalty can end up having their earlier comments thrown back at them during the penalty deliberations.

"A lot of jurors we've interviewed after trials have told us when they'd object to death other jurors would tell them, 'You promised the judge that you'd be willing to impose the death penalty,'" says Haney. "The hypothetical argument that they could conceivably impose death in some particular situation is later treated like a pledge to do it."

Given the inherent problems in death-qualifying juries, why has there been so much focus on possible moratoriums, DNA testing, poor defense lawyering and other factors and so little concern expressed about the very fairness of the jury-selection process?

Probably the main reason is that the Supreme Court has already ruled the matter -- in favor of the prosecution. Before 1968, it was routine for all those opposed to the death penalty to be excluded from juries in capital cases. That year, in Witherspoon vs. Illinois, which dealt specifically with the process of vetting potential jurors for their death-penalty views, the Supreme Court imposed strict limits on how easily they could be excluded.

After hearing about the higher conviction rates found in the Berkeley study and other research, it ruled that only those who absolutely, under no imaginable circumstances, could ever vote for death, could be excluded. The court held that by excluding all death penalty opponents the state had "crossed the line of neutrality" and created "a tribunal organized to return a verdict of death."

But in 1986, a reconstituted high court under Chief Justice William Rehnquist broadened the permissible grounds for excluding jurors. In Wainwright vs. Witt, the court basically granted prosecutors free rein to excuse any potential juror who expressed any qualms at all about imposing the death penalty, since that would "impair the performance of his duties as a juror in accordance with his instructions and his oath." Under this standard, salvaging a juror through "witherspooning" -- getting death-penalty opponents to acknowledge that under particularly heinous circumstances they would vote for death -- has become much tougher.

The high court also made state courts the final arbiters of the fairness of jury selection, making it extremely difficult to obtain federal review of convictions on jury-selection grounds.

"The problem is that once the Supreme Court decides something, Americans have a tendency to assume that it means it is a good thing, not just an allowable thing, so they just stop thinking about it," says South Carolina attorney Bruck. "But in this case, the court didn't say it was a good thing, just that they'd allow it unless more studies came along to show it was a really serious problem."

A major difficulty in addressing the issue is that -- short of eliminating the death penalty -- there's no easy fix. And though some members of Congress would like to reform the death-penalty system at the federal level, a Bush presidency does not augur well for change.

Neither does the composition of the Supreme Court. Even if the courts found the practice to be unconstitutional because it ends up biasing a jury, it could cause monumental nightmares by potentially opening up the door to a new trial for nearly every one of the 3,600 inmates on death row -- not to mention many more who, like Reasonover, received less than capital sentences but were judged by a death-qualified jury.

Nor is simply allowing defendants' attorneys the unfettered right to dismiss death-penalty proponents the answer. Assuming we maintain the death penalty, as is clearly the popular inclination at the moment, that approach would make it difficult to impanel jurors who would convict in capital cases -- a politically untenable solution in death-penalty states.

Some have suggested using unscreened jurors for the guilt phase of a trial and then screening and seating a new panel for the penalty phase. But the new pro-death-penalty jurors would have heard none of the nuances of the trial evidence and would clearly be prejudiced against a defendant already found guilty of the crime.

A modified reform being proposed by some critics, including Haney and Bruck, is to wait until the penalty phase of a trial to death-qualify the jurors; those expressing strong objections to the death penalty could be replaced with alternate jurors who had attended the entire trial. But in order to have enough alternates on hand, there would have to be many more of them than usual to avoid the chance of a mistrial. Given the difficulty courts are already having filling jury boxes, this would be a major challenge.

A third possibility suggested by death-penalty advocate Cassell would be to grant the judge the authority to impose the sentence without a jury's direction, as happens in Colorado and Arizona. But for the most part both sides oppose such a move -- prosecutors because it deprives them of the benefits of death-qualifying, and defenders because they generally would rather bet on convincing at least one juror to vote against death than on having to convince a judge.

The public's opposition to the death penalty is not likely to increase dramatically anytime soon. So unless new studies prove that qualifying juries is so discriminatory that even the current conservative Supreme Court feels compelled to reexamine the issue, we're stuck with a process that is clearly flawed -- and flawed in a way many experts agree increases the likelihood of mistaken convictions and executions.

"Nowadays more people believe in the death penalty, so I don't think there's much chance there will be a change in the way we pick death-penalty case juries," says Haney. "But my philosophy is that you have to keep collecting the data and making the case until some court is willing to look at it again and do something about it."

source: www.alternet.org/story/10304/