The Freedom Bulletin

In last week’s Herald, Peter Gelzinis wrote a great column about the death of former Libyan dictator Moammar Gadhafi (Qaddafi? Kaddafi? However you want to spell it). He contrasted Gadhafi’s brutal death at the hands of an angry mob with the decision of Chief Judge Mark Wolf of Boston’s federal courthouse to throw out the death penalty against convicted spree killer Gary Sampson after a juror lied on her questionnaire.

I agree that no one deserves to die the way Gadhafi did a couple weeks ago. He was captured alive, beaten, dragged, kicked, taunted, verbally abused, shot multiple times, possibly sexually assaulted (warning, link is somewhat graphic), and then his body was displayed in a shopping mall. No matter what Gadhafi did, it isn’t right to treat anyone like this. There are plenty of public figures I strongly dislike, and that I think never deserve to hold any elected office or position of power ever again, but I don’t wish death upon them, let alone a death as barbaric as Gadhafi’s.

“It is appalling that anyone can express joy at the death of a man executed without a fair trial, dragged along the street, paraded on a truck, and displayed to the public in a meat shop,” wrote Raymond Hu in a letter to the editor in the Toronto Star, putting it better than I could. Christopher Hitchens at Slate and Andrew Meldrum at the Global Post make good points about why Gadhafi should have been tried in the International Criminal Court, and Hamid Dabashi at Al Jazeera explains why his body should have been treated with dignity.

I don’t oppose the death penalty, but because it is such a severe and irreversible punishment, it should only be used in as humane a way as possible and after careful, unbiased deliberation. I appreciate that Judge Wolf, knowing that he would elicit outrage from victims’ relatives and the public, made sure to stick to this standard. The rebel fighters who killed Gadhafi did not, and at the absolute least the media should be paying attention to this failure of justice, and an impartial investigation should be conducted.

Convicted murderer Troy Davis was executed in Georgia last night, despite significant doubts about the validity of his conviction. The 42-year-old maintained his innocence to the end, lifting his head from the gurney in the death chamber to say, “I am innocent. All I can ask is that you look deeper into this case so that you really can finally see the truth. I ask my family and friends to continue to fight this fight.”

Although I’m not opposed to the death penalty for people who did exceptionally horrible things, there are simply too many doubts of Davis’s guilt for his execution to be called justice.

Davis was convicted in 1991 of murdering police officer Mark MacPhail. The verdict was based on the testimony of nine eyewitnesses (who, according to some research, can be unreliable), but then  seven of them recanted or changed their stories. The government presented no DNA evidence, surveillance video, or murder weapon.

Former prosecutor Mark Osler wrote that the legal system has to balance competing values: finality on the one hand, with mercy, as well as certainty, on the other. Yes, it’s important for people to know that verdicts and sentences aren’t going to change, but it’s also important to know that the verdicts and sentences are correct, and to give the defendant the benefit of the doubt if enough doubt exists. In cases like Davis’s, where there is some amount of doubt, sentencing the defendant to life in prison would provide finality while also allowing the opportunity that the defendant could be freed if it turned out that his guilt was no longer certain.

2008 Libertarian presidential candidate Bob Barr made another good point. In the evidentiary hearing that the Supreme Court ordered for Davis after doubts emerged about his conviction and sentence, he was required to prove his innocence in order to avoid execution. Although he succeeded in showing that the government’s case was “not ironclad,” in the words of the judge, this wasn’t enough. Sadly, it wasn’t enough for the Board of Pardons and Paroles, either, nor was it enough for the Supreme Court when they rejected Davis’s last ditch bid for a stay of execution in his final hours.

At the end of the day, I’m not sure whether Davis is guilty or innocent. And that is exactly the reason why it was wrong to execute him.

Another day, and more arguments in the hearing on Gary Sampson’s 2255 petition for a new trial. I wasn’t there for the entire time, but today seemed to feature Sampson’s least persuasive arguments. The judge, Mark Wolf, actually said, “Mr. Sampson’s counsel has done a good job. They put the weakest arguments towards the end.”

Here are a few of today’s apparently not so good arguments by Sampson’s defense team:

First, Sampson’s lawyers argued that his trial lawyers failed to investigate the effects of Depakote on his demeanor, or to offer testimony to explain his demeanor to the jury. According to various news reports, Sampson had a “flat affect,” showed no remorse or emotion, and looked bored during his trial. Sampson’s lawyers today argued that the medication caused this behavior, and that his trial lawyers should have called an expert witness to explain this to the jury. Prosecutors, however, argued that Sampson was only taking Depakote for his headaches, that his bipolar disorder and not the medication caused his unsympathetic demeanor, and that despite the medication he did show emotion, crying when the death penalty verdict was announced and yelling at officers in jail. Judge Wolf indicated informally that this claim might deserve further arguments and might not be summarily dismissed.

Sampson’s attorneys also claimed that the jury had seen the victims’ bloody shirts, which would be prejudicial. Judge Wolf, who was also the trial judge, excluded the shirts, but one might have been briefly visible during a doctor’s testimony. Sampson’s then-lawyers failed to move for a curative instruction or a mistrial.

Additionally, Sampson’s team argued that his trial lawyers failed to adequately investigate and develop evidence of his brain damage by conducting more detailed testing. Prosecutors tried to shoot down this claim, praising the trial attorneys’ good lawyering and thorough testing.

On Monday, Sampson’s lawyers presented what the judge likely considers their strongest arguments – that his trial attorneys failed to present enough evidence of his background, mental illness, and brain damage. In order for Sampson to get a new trial, all of these alleged mistakes by the trial lawyers must add up to actual incompetence, and there must be a ”reasonable probability” that if it weren’t for this incompetence, the jury would have reached a different verdict, namely life in prison instead of the death penalty.

Tomorrow I probably won’t have a Sampson update because I’m going to watch Thomas Mortimer’s arraignment. I’m not sure how long these hearings will go on or when the judge will issue his ruling. This sure has been a busy week for trials .

The hearing on Gary Sampson’s 2255 (habeas corpus) petition continued today. Sampson’s defense team has raised 18 issues that they believe violated Sampson’s constitutional rights and entitle him to a new trial.

Today’s arguments aren’t as interesting to write about as yesterday’s, and Judge Mark Wolf considers them less likely to succeed. Sampson’s main argument today was that his trial lawyers failed to adequately investigate the option of pleading guilty earlier on in the process and thereby avoiding the death penalty. The law on this issue was complicated and difficult for me to understand, but I think that if Sampson had pled guilty right away, he would have been ineligible for the death penalty. However, because of a Supreme Court decision sometime during Sampson’s legal proceedings, that no longer was an option by the time he decided to plead guilty.

Sampson’s team argued that his trial attorneys failed to plan for this Supreme Court decision, which was foreshadowed by several prior decisions, and to properly advise their client. Prosecutors, however, argued that expecting someone to predict Supreme Court decisions is unreasonable and stressed the experience and competence of Sampson’s trial lawyers. In order to receive a new trial, Sampson must show that there is a reasonable probability (doesn’t have to be more likely than not) that the jurors would not have arrived at a unanimous death penalty verdict if it weren’t for the incompetence of his trial lawyers.

The hearing will continue tomorrow and probably after that. Then Judge Wolf will formally issue a ruling on whether or not to summarily dismiss Sampson’s claims. If there are any claims he does not summarily dismiss (which is likely), then there will be more detailed hearings on those. Stay tuned!

Today was the first day of a series of hearings in the case of Gary Sampson, a convicted triple-murderer who was sentenced to death back in 2004. Sampson, from Abington, MA, pleaded guilty to murdering three random, completely innocent people in a 2001 crime spree: Philip McCloskey, Jonathan Rizzo, and Robert “Eli” Whitney.

Two of the murders took place in Massachusetts and one in New Hampshire. Although Massachusetts does not have the death penalty, federal law allowed Sampson to be tried in federal court, where he received a death sentence.  

Now, Sampson and his defense team have filed a habeas corpus petition, or 2255 petition, an attempt to get a new trial because he claims his constitutional rights were violated. In this particular petition, Sampson’s lawyers claim that his trial lawyers, including Robert Sheketoff and Stephanie Page (who represented Neil Entwistle) were ineffective.

I attended today’s hearing on the 2255 petition, which lasted for most of the day at the Moakley Federal Courthouse in Boston. Family members of the victims were in the courtroom, as well as five lawyers representing Sampson and four federal prosecutors. Sampson is spending his time on federal death row in Terre Haute, Indiana, and was not at the hearing.

The prosecutors have filed a motion for summary dismissal, a request to have Sampson’s petition thrown out without discovery or detailed arguments. At the hearing, Judge Mark Wolf ruled tentatively that he would deny the government’s motion and allow the 2255 petition to go forward, at least with respect to most of the issues the lawyers argued about today.

Sampson’s main complaint is that his trial lawyers failed to introduce adequate evidence of his history of mental illness during the penalty phase of the trial, which was essentially the only part, because he pled guilty. If it weren’t for their incompetence, Sampson’s team claims, at least one juror might have voted for life in prison.

According to defense attorney William McDaniels, Sampson fell ten feet down a flight of stairs when he was 4, was physically and emotionally abused, injured his head in about a dozen fights over the years, was in a car accident at age 20, jumped off a roof, was beaten in prison, and compounded these problems with drug and alcohol use. McDaniels says that Sampson is in the bottom 1% of the population in terms of mental functioning, and that he has bipolar disorder, as well as damage to the frontal, temporal, and occipital lobes of his brain, which combined to cause his recklessness, arrogance, and lack of remorse. However, little evidence was introduced at trial to corroborate these claims.

Sampson’s lawyers claimed that his trial attorneys failed to contact his family and friends in a timely fashion and did not try hard enough to get them to testify about his background and childhood. The prosecutors, on the other hand, defended the defense lawyers from the trial. They claimed that they tried all available means to contact Sampson’s family short of issuing subpoenas, but they refused to talk. Also, according to prosecutors, Sampson’s trial lawyers delayed contacting his family to give them time to get over the shock of learning of their son’s crimes, or decided against calling them to the witness stand because they would hurt Sampson’s case.

Additionally, both sides agreed that Sampson’s trial lawyers failed to introduce records from the Brockton Hospital of Sampson’s childhood head injury. Prosecutors downplayed this omission, arguing that it would not have changed the verdict.

The lawyers also argued about the credibility of a witness who downplayed the abuse Sampson suffered as a child. Sampson’s attorneys said that the trial lawyers should have impeached this witness, while the prosecutors, as they did throughout today’s hearing, maintained that the trial attorneys were competent and did a more than adequate job.

The arguments will continue tomorrow and most likely the day after. I’ll probably continue stopping by and will be sure to blog back with whatever I observe of the proceedings.

Read more at the Globe, Herald, and AP.