This article was posted on the main page today, but I wanted to re-post it here and point out that this Georgia project is just the first of 16 that the ABA has underway, including one on Texas. For more, see here:

ABA Moratorium Project

"Texas Assessment Team"

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Atlanta Journal-Constitution
Published on: 01/29/06

Georgia should place a moratorium on seeking the death penalty because it cannot ensure fairness in defendants' trials and appeals, according to a new report by the American Bar Association.

The report, to be published Monday, found seven flaws that compromise Georgia's administration of the death penalty. In two instances, the ABA report said, Georgia makes it tougher for capital defendants to avoid execution than any other state.

Georgia stands alone in the nation in not guaranteeing lawyers to death row inmates at a critical stage of their appeals, the report noted.

The ABA report also found that Georgia has set the toughest standard in the United States for a defendant to prove he or she is mentally retarded. Georgia and 25 other states prohibit the execution of a prisoner with mental retardation.

Asked if Gov. Sonny Perdue would consider a moratorium, his spokesman, Dan McLagan, said simply: "Nope."

Attorney General Thurbert Baker, through a spokesman, said he does not agree with the call for a moratorium. The spokesman did not elaborate.

The recommended moratorium on death penalty prosecutions is contained in a 323-page report prepared by 10 prominent Georgia lawyers and political figures, including a former state chief justice, law professors, criminal defense lawyers, former prosecutors and a legislator. The 400,000-member ABA is the nation's largest legal organization.

"The purpose of this [study] is to move the system forward so that it's more capable of providing even-handed justice on a consistent basis," said Anne Emanuel, associate dean of the Georgia State University law school and chair of the ABA study.

All 10 members of the assessment team, except Donnie Dixon, a former U.S. attorney in Savannah, recommended the moratorium.

Dixon said Saturday he supported many of the report's findings but felt most death penalty cases had been handled properly.

"Most of the cases on death row, the individuals got there through a fair process," Dixon said.

The report likely will be used as ammunition by national groups opposed to the death penalty and by lawyers handling appeals for inmates on death row. But the death penalty has strong support from Georgia voters and politicians, and any substantial change would seem unlikely before this year's stateelections.

Bills were introduced in the Georgia Legislature last year to hold off on executions while the state studied whether there were inequities in the way the death penalty is applied. The bills went nowhere.

"We're not trying to debate the death penalty," said Sen. Sam Zamarripa (D-Atlanta), who introduced the Senate version. "We're just trying to determine if we in Georgia have the highest and best practices."

Harold Clarke, retired Georgia Supreme Court chief justice and a member of the ABA study team, supports a moratorium. "There are too many instances � and one's too many � where folks are convicted and turn out not to be guilty," Clarke said, "and then there are some more that we probably never know about."

Prosecutors argue that existing safeguards are adequate. They note there is no known instance of an innocent person being executed in Georgia.

"Georgia is very careful and very deliberate in its imposition of the death penalty," said Dougherty County District Attorney Ken Hodges, vice chairman of the Prosecuting Attorneys Council of Georgia. "The defendant in a capital case is given every right afforded him or her under the U.S. and Georgia constitutions. They get a heck of a lot more constitutional protections than the victims, who are heinously, brutally raped and murdered."

Hodges cited the case of William Marvin Gulley, who killed an 81-year-old Albany woman and raped her 60-year-old daughter. The state Supreme Court overturned Gulley's death sentence last summer after finding his lawyers failed to show jurors that Gulley saved the lives of two people in 1992.

"The system worked," Hodges said. He said he later agreed to a sentence of life in prison without parole for Gulley because the victims' family did not want another trial.

Numerous problems

Nine years ago, the ABA called for a nationwide moratorium on executions in the 38 states with the death penalty but stopped short of asking for a suspension of capital prosecutions. The organization in 2003 launched a comprehensive review of death penalty systems in 16 states that had not already done them.

The ABA's report on Georgia, the first to be completed, found numerous problems in the way capital defendants are tried here:

�Georgia is the only state that does not guarantee a lawyer for a condemned inmate's habeas corpus appeals, which challenge the constitutionality of convictions and sentences and sometimes result in new trials. "The lack of counsel ... creates a situation where this critical constitutional safeguard is so undermined as to be ineffective," the report said.

�It is unclear if a new statewide defender system for capital cases will be properly funded so it will work as planned. The report noted many death sentences were imposed before the new system, which guarantees experienced lawyers for indigent defendants, was funded by the Georgia Legislature in 2004.

�The state Supreme Court must ensure each death sentence is not disproportionate to penalties imposed in similar cases. But the court does not consider murder cases where a sentence less than death was imposed, meaning its review is "incapable of uncovering potentially serious disparities."

�Surveys show too many jurors misunderstand a judge's instructions about what evidence they can consider when weighing the death penalty. "Death sentences resulting from juror confusion or mistake are not tolerable," the report said.

�Race remains a factor in convictions, with convicted murderers of white victims much more likely to receive a death sentence than murderers of black victims.

�Of the 26 states that have prohibited execution of the mentally retarded, Georgia is the only one that makes defendants prove retardation beyond a reasonable doubt � the highest burden of proof.

�Georgia law allows the death penalty for the crime of felony murder, which is a killing in the commission of another felony. The report said the death penalty should only be imposed for malice murder, where a defendant acts with an intent to kill or a reckless disregard for human life.

Death sentences decline

Even though capital punishment has strong public support nationwide, the number of executions and death sentences has been steadily declining. Legal experts cite the passage of laws allowing jurors to sentence convicted killers to life without parole as a major reason.

Since 1998, when 302 murder defendants were condemned nationwide, the number of death sentences has dropped by two-thirds. Last year, 96 defendants were sentenced to death nationwide.

Four states with death penalty statutes have halted executions for the time being. Earlier this month, New Jersey banned executions for a year while a task force determines whether the state's application of the death penalty is fair. Six years ago, then-Gov. George Ryan halted executions in Illinois after revelations that wrongfully convicted inmates were on death row.

Appellate courts in Kansas and New York, citing unfair sentencing laws, declared the death penalty unconstitutional there in 2004. Capital punishment has yet to be restored in either state.

Lawmakers in more than a dozen states derailed legislation to impose a death penalty moratorium last year.

Georgia's history

In Georgia last year, prosecutors sought capital punishment against about four dozen defendants. One woman and 107 men reside on Georgia's death row. One woman and 107 men reside on Georgia's death row.

Georgia has played a pivotal role over the past four decades in the ongoing debate over capital punishment.

From the 1930s to the 1960s, Georgia executed more prisoners than any other state. Many anti-death penalty activists criticized the state's use of executions, arguing it was racist and capricious.

The issue came to a head when Henry Furman, convicted of killing a man during a burglary, appealed his death sentence to the U.S. Supreme Court. Furman's lawyers argued that executing Furman would be arbitrary and violate the Eighth Amendment's guaranteee against "cruel and unusual punishment."

In 1972, the Supreme Court ruled 5-4 that the Furman case, as well as similar cases in Florida and Texas, should be overturned. In a deeply divided ruling, the majority of the court � in five separate opinions � determined that the death penalty, as then applied in those states, was unconstitutional.

The court's chief complaint was that the three states did not have clear rules for when a prosecutor could seek the death penalty. Justice Potter Stewart compared receiving a death sentence to being struck by lightning.

The ruling led to a de facto national moratorium on the death penalty.

In response, Georgia lawmakers established guidelines for prosecutors on the death penalty. In 1976, the high court ruled 7-2 that Georgia's guidelines were constitutional and reinstated the death penalty.

Georgia has executed 39 men since then.

Find this article at:
http://www.ajc.com/news/content/metro/stories/0129deathpenalty.html

Interesting little factoid I just found on that ABA website ...

quote:

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Who is funding the project?

The ABA received the majority of its funding for this project as a grant from the European Commission's European Initiative for Democracy and Human Rights. The ABA received additional funding for this project from the JEHT Foundation.

---

For more on the JEHT Foundation, you can click here for the official website, or here for another, more revealing view of this organization ...

(don't you just love the internet sometimes?)

Did anyone else look at the makeup of the ABA's Texas group? There appears to be no representation from North, East, or West Texas. In fact, I didn't see anyone listed on their group who wasn't from the Houston area and maybe San Antonio. Shouldn't an assessment team have people who can represent perspectives from throughout the State, especially one as large as Texas? I guess that would presume that they actually planned a real review and not just a vehicle to attack the death penalty with a predetermined result.

I also looked at the team.
Didn't notice the "regional" connection but did notice some other similar connections.
I can hardly wait for the result of their assessment.

Watch the Texas project -- if any of the assessors are authors of, or have anything to do with the new, cutting edge empirical study and expose (insert accent mark) entitled "Deadly Speculation -- Misleading Texas Juries With False Predictions of Future Dangerousness" (long title, even for lawyers), be advised there has been much information in that publication proven untrue or dare I say, completely FALSE. It is just the kind of "book" that would spearhead an attack on the Texas capital punishment system.

Senator to seek moratorium on executions

The Atlanta Journal-Constitution
Published on: 02/23/06

Sen. Vincent Fort, D-Atlanta, will submit legislation today calling for a moratorium on the death penalty in Georgia and the appointment of a commission to study purported problems with how the state sends defendants to death row.

Fort's legislation comes 24 days after a panel of prominent Georgia lawyers and political figures issued a report calling for the same thing. Fort was a member of the group, which included a former state chief justice, law professors, criminal defense lawyers and former prosecutors. The study was sponsored by the 400,000-member American Bar Association, the nation's largest legal organization.

"The ABA report is very, very important," Fort said Wednesday. "It gives us a new touch point for a debate about the death penalty. ... It really has us in a new place."

The article

Death-penalty changes advised

Report finds inconsistencies in Arizona

William Hermann
The Arizona Republic
Jul. 18, 2006 12:00 AM


County attorneys should relinquish their authority in the charging of capital crimes to the state, according to a new report recommending major changes to Arizona's death penalty.

The report, sponsored by the American Bar Association, also calls for state supervision of county and municipal crime labs, better pay for court-appointed attorneys, standardization of sentencing and a clear definition of what constitutes a "cruel and heinous" crime.

A team working under the supervision of the ABA released the 21-month study Monday. It was an Arizona case that prompted the European Union to fund this and other studies. The team included a former Arizona Supreme Court justice, an Arizona State University law college professor, ASU law students, several Valley attorneys and a state Attorney General's Office official.

ASU law Professor Sigmund Popko said one of the most significant findings is that there is little consistency in how defendants in murder cases are charged. There is "arbitrary treatment of defendants; we have 15 counties with 15 county attorneys, each with the authority to seek the death penalty as he or she sees fit," he said.

That finding was met with some scorn by the Maricopa County Attorney's Office and caution from the Arizona Attorney General's Office because it calls for usurping the authority of elected officials. Maricopa County Attorney's Office spokesman Bill Fitzgerald said it wasn't clear at all that a statewide authority is needed.

"We believe the system is very much skewed in favor of defendants," he said. "It commonly takes 20 years or more for murderers to be executed for their crimes, due to numerous appeals and other issues. We think the system has a number of areas that should be reviewed and that the system certainly isn't shortchanging defendants and their rights."

He said the office had declined to participate in the ABA study "because the ABA is on record calling for a halt to all executions in America."

The office soon would issue its own report on the topic, he said.

The new report was part of the ABA's Death Penalty Moratorium Implementation Project. The ABA in 1997, called for a moratorium on the death penalty. The organization said inconsistencies nationwide in many aspects of charging capital cases made the system manifestly unjust.

Deborah Fleischaker directs ABA death penalty studies and said similar projects are going on in eight other states. "We asked the Arizona team to look at the state's system and note concerns. We did not require them to make a conclusion about whether there should be a moratorium on the death penalty; they chose not to," Fleischaker said.

"We wanted them to determine if Arizona's system is fair and accurate. Then the onus is on Arizona to improve that system."

She said the studies are being funded by the EU as a result of the 1999 Arizona execution of two German-born brothers, Karl and Walter LaGrand. The two were convicted of the 1982 murder in Marana of a bank manager. The International Court of Justice, which has no power to enforce rulings, had nonetheless ruled to stop the executions.

"The European Union gave us about $1.3 million for these studies as a result of the outrage over the LaGrand executions," Fleischaker said. "They view the death penalty as one of the major human rights issues of our time."

Between 1963 and 1991, there were no executions in Arizona because of legal challenges.

Team member and Phoenix attorney Larry Hammond said one of the most significant threats to the rights of Arizona defendants is the county-to-county differences in the way justice is, or isn't, delivered.

"It's beyond question that whether the death penalty is sought will depend on where charges are sought," Hammond said. "We clearly need a statewide authority here."

Arizona Attorney General Terry Goddard said that while he agreed with some recommendations of the report, he was more cautious about infringing upon the authority of county attorneys.

"The county attorneys are elected specifically to make that kind of (capital case) decision," Goddard said. "This is a very serious matter, one of constitutional import.

"Still, if one county is charging many crimes as a capital offenses and another is charging very few, you may have a disproportionality of capital offenses. Perhaps there could be a (state) review; but you would not want a usurpation by any group."

Hammond and Fleischaker said it is the hope of the ABA and the study team that state officials will use the report to improve Arizona's capital cases system.

"The governor, the attorney general, the chief justice of the Supreme Court, Superior Court justices, legislators, the Board of Executive Clemency, all will see this report," Hammond said.

"We are seeing that it goes to the decision makers who can move this question forward."

The ABA called me recently and wondered why I didn't want to join their organization. Seemed very surprised when I explained that I had no interest in joining a group who has taken a position undermining the death penalty (and a position that was adopted without the vote of those in law enforcement). I think I added something about they don't serve to advance our criminal justice system, one approved by voters and one we are sworn to uphold. I guess I didn't make a friend .......and they did not get my money. Last term, Justice Scalia spoke for me too.

Has any other prosecutor been solicited recently? Why do they suddenly care about career prosecutors?

I too steadfastly refuse to join and support the ABA for the reasons John mentioned.

Shannon, I wonder if the ABA would be satisfied if the Arizona Legislature established and adequately funded a "death penalty" budget line item to fully fund any capital murder/death penalty prosecution in any Arizona county where the elected district attorney chose to seek it? Surely, that would alleviate most of the "arbitrariness" they seem to be so concerned about.

I was solicited a few months ago and gave them a very similar answer. They do not represent the values of the criminal justice system or the viewpoint of prosecutors. I declined their "invitation" to join for those reasons.

Mr. Steve McGinty
Assistant Director, New Member Programs
American Bar Association
321 North Clark Street
Chicago, Illinois 60610-4714

Re: ABA membership

Dear Mr. McGinty:

Thank you for your association�s recent invitation to my office or me to join the ABA. Regrettably, upon review of the ABA�s positions on issues of interest to prosecutors, I must decline the invitation.

While I acknowledge the stature of the ABA in a general sense, my review of the regard in which prosecutors seem to be held by the association is troubling. Most recently, the association has stridently favored journalist shield laws and generally opposed capital punishment. Politically and legally, I could not differ more from the association�s stances. Historically, as well, the ABA�s focus on criminal justice issues has taken a decidedly cynical view of the state�s side of the bar. Apparently, the fairly universal obligation upon prosecutors not to convict but to see that justice is done is of little moment to the ABA. If I thought the association viewed prosecutors as more than hyper-competitive �jack-booted thugs,� my decision might be different. Unfortunately, I see no evidence to dispel my conception.

Should I see a more concerted effort to include a prosecutorial perspective in how the ABA views and speaks on criminal justice issues, I may reconsider my position.

Sincerely,



Scott Brumley
Potter County Attorney

Ditto, Scott. Well said.

well said. well spoken.

I quit the ABA while a defense lawyer in Waco back in the early 90's. During the same year they took a stand on abortion that had nothing to do with the law and everything to do with politics, recognized Anita Hill as lawyer of the year (without citing what contributions she made to the law that year-- the award was presented by a presidential candidate's wife ( now a U.S. senator)), and other stands for the "law" that really ended up being about politics.

They quit being about a professional organization some time ago and have displayed no effort to return.

I cannot imagine why any lawyer, prosecutor or defense, would want to be affiliated with that bunch.

This is off the original topic, but it is ABA-related:
-------------------------------------

An ABA Hit Job
Political payback against a judicial nominee.

Wednesday, July 26, 2006
WSJ Online

In March 2001, barely two months after taking office and two months before announcing his first judicial nominees, President Bush told the American Bar Association to buzz off. Specifically, Mr. Bush ended the tradition of providing the ABA's Committee on the Federal Judiciary with the names of nominees before they were made public. The ABA would still evaluate candidates for the federal bench, but it would do so from a status more consistent with the role it plays--that of a political interest group.

Too bad Mr. Bush didn't go all the way and cut out the ABA entirely. Instead, the lawyers' lobby retains a special role as the only national organization authorized by the Administration to interview judicial nominees. And when it has given a favorable rating to a Bush nominee, the Administration has been only too happy to shout it from the rooftops.

Enter Michael Wallace. Anyone who still clings to the fiction that the ABA can be counted on to provide professional evaluations of judicial nominees without regard to politics should take a look at the current squabble over Mr. Wallace, whom Mr. Bush has nominated for the New Orleans-based Fifth Circuit Court of Appeals. In May the ABA panel rated Mr. Wallace as "unanimously not qualified" for the federal bench.



Mr. Wallace is a highly regarded attorney in private practice in Mississippi, where his nomination has bipartisan support. He clerked for the late Chief Justice William Rehnquist and in the early 1980s served as counsel to then-Congressman Trent Lott. In 1999, Mr. Lott hired him back as special counsel during President Clinton's impeachment trial.
That's not a professional background likely to endear the nominee to liberals. But here's the real disqualifier: During the Reagan and George H.W. Bush Administrations, Mr. Wallace served on the board and then was chairman of the federally funded Legal Services Corporation, whose ostensible mission was to provide legal help for the poor but which was a haven for liberal legal activism.

Mr. Wallace's efforts to reform the LSC had many critics, among them an attorney by the name of Michael Greco. Another opponent was the then-president of the New Hampshire bar, Stephen Tober, who accused him of having a "political agenda" at one particularly contentious hearing. Mr. Greco is now president of the ABA, and Mr. Tober is chairman of the ABA committee that nixed Mr. Wallace. Mr. Wallace's reforms were adopted, and now it's apparently payback time.

In any case, the ABA selection panel's deliberations are secret and it hasn't said why it considers Mr. Wallace unfit for the federal bench. In an exchange of letters last month with Mr. Tober, Senator Arlen Specter, chairman of the Judiciary Committee, said he would call the ABA to testify on its "Not Qualified" rating. He requested materials supporting the rating "as soon as possible."

Mr. Tober replied that "we will do our best" to submit the materials 48 hours in advance of the hearing--a schedule that would make it difficult and perhaps impossible for Republicans on Judiciary to evaluate the ABA's charges and prepare for the questioning. Senator Specter threatened a subpoena and the ABA supplied an advance copy of its testimony but not the supporting documents. The immediate effect of the ABA's delaying tactics has been to push Mr. Wallace's hearing date into September, when election-year politics make confirmation unlikely this year.

The ABA judicial screening panel has a long history of such ideological sandbagging, going back to its sabotage of Robert Bork and Clarence Thomas. We'd have thought Republicans had learned their lesson. Given the political revenge that seems to be at work in the Wallace hit, it is past time to cut the ABA out of the vetting process altogether.

A very pleasant young lady called me at work last year to ask if I would like to join the ABA. Figuring she was just trying to make a living and had no particular personal investment in the organization, I told her with as much gentleness as possible that I would join the ranks of the damned in Hades before I would join the ABA.

You and Chief Justice John Roberts, apparently, Ben -- I just read that he is not a member of the ABA, either.

The Chief's stock just went waaaay up in my book!

Here's an interesting take on the ABA's recent attack on the death penalty in Ohio ...

The article

Tuesday, October 2, 2007

Death penalty report results in backlash

BY ANDREW WELSH-HUGGINS | THE ASSOCIATED PRESS

COLUMBUS - Death penalty opponents hoping a long-awaited study would bolster their efforts to end capital punishment saw the opportunity overshadowed by questions over the study's bias and much bigger news from the U.S. Supreme Court.

The analysis released last week by the American Bar Association said Ohio's death penalty system was so flawed that Gov. Ted Strickland should immediately halt executions until the state could do its own study and fix problems identified by the ABA.

Anticipation over the report was high, and the state's American Civil Liberties Union chapter scheduled a rally two days later, hoping to ride the tide of the report's findings.

But the study found itself in trouble almost immediately over the makeup of the 10-person team of Ohio lawyers that compiled the findings.

No members are current prosecutors. Four are defense lawyers, a fifth is a lawyer and professor who works to free innocent people through DNA testing, and a sixth is a Democratic lawmaker, Rep. Shirley Smith of Cleveland, long opposed to the death penalty.

Geoffrey Mearns, a former assistant U.S. attorney general who prosecuted Oklahoma City bomber Terry Nichols, turned out to have strong reservations about capital punishment.

Even the name of the ABA project, reviewing laws in eight states, seemed to indicate a bias: the "Death Penalty Moratorium Implementation Project."

"All you have to do is look at the membership of this group and see where it's going to go," said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.

The 495-page study was particularly critical of Hamilton County Prosecutor Joe Deters.

The study said the chance of getting a death sentence in Hamilton County is 2.7 times higher than in the rest of the state. Further, a convicted killer from the Cincinnati area is 3.7 times more likely to be sentenced to die than a convicted killer from Cleveland and 6.2 times more likely than one from Columbus, the study found.

"We don't plea-bargain death penalty cases," Deters told The Enquirer last week. "We take cases very seriously. If proof is not a problem, we seek the death penalty.

"Tell me: Who is on death row that shouldn't be? To these people, it's not about innocence, it's about whether their lawyer could have been a little trickier."

Although the study made the front page of most newspapers, the rally two days later, for which supporters had promised crowds in the thousands, drew only about 200 people, about average for Statehouse protests.

Yet opponents weren't left without hope. The day after the ABA report was released, the U.S. Supreme Court said it would consider a challenge to lethal injection by a pair of Kentucky death row inmates.

The inmates say injection constitutes cruel and unusual punishment because prisoners can suffer agonizing pain if the three-drug cocktail isn't administered properly.

A ruling in favor of the inmates likely wouldn't end the death penalty, since lower-court federal judges have already noted that states' procedures are readily fixable. But it could force delays or changes as states debate their injection protocols.

That makes it the bigger news of a big death penalty week in Ohio, though not perhaps what opponents expected as they first unveiled the ABA study.

The study found the state's system met only four of 93 standards identified by the ABA for a properly functioning capital punishment system. The report says Ohio fails to provide adequate legal help, doesn't preserve DNA evidence long enough, doesn't properly compare one death sentence to other similar cases and has produced a system full of racial and geographic disparities.

The ABA's defense of the team's makeup fell flat, especially when former ABA president Michael Greco, who handled the report's release, said he didn't know the positions members held on the death penalty.

That stretched credulity given Smith's efforts over almost a decade to pass bills to study the fairness of the death penalty.

Sounds like they need a good spanking. And not the Monty Python kind of spanking. More ike the Animal House kind of spanking. For details, go to the Spanking Thread. Another fine TDCAA User Forum service.

Imagine that!

The ABA stacking a panel to achieve their desired outcome.