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CIA's Overthrow Plans for Iran Agency musters Swiftboat vets, pumps funding into destabilization program aimed at Teheran. Trish Schuh reveals how White House approves race-baiting smears of Islam. Remember how Leadbelly got ripped off by Lomax, how Louis Armstrong's agent got richer than his most famous client? The rip-offs never die. Fred Wilhelms narrates how artists and musicians are being shafted in the age of the internet. Meet the real Judge John Roberts, serf for big business. Cockburn and St Clair dissect the Court's new nominee. Tailhook vet and self-proclaimed Tom Cruise model bites dust in Pentagon scandal: a defense industry parable. St. Clair on Duke Cunningham's Crash Landing. Get the answers you're looking for in the latest subscriber-only edition of CounterPunch ... CounterPunch Online is read by millions of viewers each month! But remember, we are funded solely by the subscribers to the print edition of CounterPunch. Please support this website by buying a subscription to our newsletter, which contains fresh material you won't find anywhere else, or by making a donation for the online edition. Remember contributions are tax-deductible. Click here to make a donation. If you find our site useful please: Subscribe Now! or write CounterPunch, PO BOX 228, Petrolia, CA 95558 |
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Other Lands Have Dreams: From Baghdad to Pekin Prison by Kathy Kelly  Today's Stories August 19, 2005 Gary
Leupp August 18, 2005 Alexander
Cockburn Greg
Moses Ramzy
Baroud Joshua
Frank Monica
Benderman Paul
Craig Roberts
August 17, 2005 Alexander
Cockburn Robert
Jensen Carl
G. Estabrook Mike
Whitney Niranjan
Ramakrishnan Norman
Solomon Dave
Zirin Jennifer
Loewenstein CounterPunch
August 16, 2005 Greg
Moses Thomas
Larson Diana
Barahona Dave
Lindorff Rep.
Cynthia McKinney Elisa
Salasin David
Krieger Alexander
Cockburn Website
of the Day
August 15, 2005 Greg
Moses Paul
Craig Roberts Mike
Whitney Robert
Jensen CounterPunch
Wire Norman
Solomon Kathleen
Christison
August 13 / 14, 2005 Cockburn
/ St. Clair William
Blum Gary
Leupp Jack
Z. Bratich Brian
Cloughley Ron
Jacobs John
Farley Dave
Lindorff Tim
Wise J.L.
Chestnut, Jr. John
Gershman Felice
Pace Fred
Gardner David
Krieger Roxanne
Dunbar-Ortiz Ben
Tripp Poets'
Basement
August 12, 2005 Christopher
Brauchli Greg
Moses Ramzy
Baroud Norman
Solomon Chris
Genovali Chris
Floyd Tariq
Ali
August 11, 2005 Saul
Landau Dave
Lindorff Ralph
Nader Talli
Nauman Gary
Leupp Sharon
Smith Paul
Craig Roberts
August 10, 2005 Tim
Wise Ron
Jacobs Joshua
Frank Cynthia
McKinney Rick
Wilhelm Stan
Goff
August 9, 2005 Mike
Ferner Monica
Benderman Mike
Marqusee Rep.
Cynthia McKinney Paul
Craig Roberts
August 6-8, 2005 Alexander
Cockburn Jason
Leopold Ray
McGovern David
Krieger Sharon
K. Weiner / Robert Jensen Fred
Gardner
August 5, 2005 Bill
Christison Paul
Craig Roberts Alexander
Cockburn
August 4, 2005 Tom
Barry Lila
Rajiva Greg
Moses Alexander
Cockburn August 3, 2005
August 3, 2005 Alexander
Cockburn Paul
Craig Roberts William
A. Cook Dave
Zirin Dave
Lindorff José
Pertierra
August 2, 2005 Ramzi
Kysia William
A. Cook Paul
Craig Roberts Mike
Whitney Ron
Jacobs Norman
Madarsz Tim
Wise
August 1, 2005 Virginia
Rodino Diana
Barahona Joshua
Frank Mike
Whitney Norm
Dixon Norman
Solomon James
Petras
July 30 / 31, 2005 Alexander
Cockburn JoAnn
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Rampton Jack
Z. Bratich Greg
Moses Jordan
Green Patrick
Cockburn Brian
Cloughley Justin
Taylor Saul
Landau John
Walsh Joshua
Frank Ron
Jacobs Fred
Gardner John
Chuckman Liaquat
Ali Khan Remi
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Heinberg Max
Watts Ben
Tripp Poets'
Basement
July 29, 2005 Cockburn
/ St. Clair P.
Sainath Niranjan
Ramakrishnan Dave
Lindorff J.L.
Chestnut, Jr. Pat
Williams Norman
Solomon Sen.
Russ Feingold
July 28, 2005 Paul
Craig Roberts William
S. Lind Gilad
Atzmon Joshua
Frank Lila
Rajiva Amina
Mire Website
of the Day
July 27, 2005 Roger
Morris Gary
Leupp Paul
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Corr Mike
Whitney Dave
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Bradley Norman
Solomon Website
of the Day
July 26, 2005 Suren
Pillay JoAnn
Wypijewski Patrick
Cockburn David
Anderson Joshua
Frank Lenni
Brenner David
Swanson
July 25, 2005 Paul
Craig Roberts M.
Shahid Alam Uri
Avnery Stan
Cox Norman
Solomon Ramzy
Baroud Mickey
Z. Website
of the Day
July 23 / 24, 2005 Alexander
Cockburn Tariq
Ali Robert
Fisk Dave
Lindorff Ricardo
Alarcón Col.
Dan Smith Brian
Cloughley Kevin
Zeese Bill
Quigley Fred
Gardner Rep.
Ron Paul Joshua
Frank Shivali
Tukdeo Gilad
Atzmon James
Petras Ben
Tripp Poets'
Basement Website
of the Weekend
July 22, 2005 Heather
Gray David
Domke Lance
Selfa JoAnn
Wypijewski
July 21, 2005 Rose
Ann DeMoro William
Blum J.L.
Chestnut, Jr. Christopher
Brauchli Joshua
Frank Brian
Concannon, Jr. Patrick
Cockburn Website
of the Day
July 20, 2005 Cockburn
/ St. Clair Roxanne
Dunbar-Ortiz Ray
McGovern Chris
Floyd Uri
Avnery Dave
Lindorff Norman
Solomon Bill
Quigley
July 19, 2005 Tariq
Ali John
Ross Davey
D. Greg
Weiher Brian
McKinlay Norman
Solomon Dave
Lindorff Bill
Christison Joshua
Frank
July 18, 2005 Joshua
Frank M.
Shahid Alam Jude
Wanniski Ron
Jacobs Mike
Whitney William
MacDougall Seth
Sandronsky Richard
Lichtman Paul
Craig Roberts Website
of the Weekend
July 15 / 17, 2005 Alexander
Cockburn Jeffrey
St. Clair Paul
Craig Roberts Harry
Browne Uri
Davis, Ilan Pappe and Tamar Yaron Andrew
Rubin Patrick
Cockburn J.L.
Chestnut, Jr. Fred
Gardner Christopher
Brauchli Chris
Floyd Ben
Tripp Col.
Dan Smith Jason
Leopold Jack
Random Norman
Solomon George
Ochenski Website
of the Weekend
July 14, 2005 Jeffrey
St. Clair Subcomandante
Marcos Dave
Lindorff Joshua
Frank Jude
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Zirin Kevin
Zeese Robert
Jensen Reza
Fiyouzat Carol
Norris Website
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July 13, 2005 Brian
Cloughley George
Galloway Carlos
Fierro Sarah
Knopp Norman
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Z. Jim
Minick Pat
Williams Andrew
N. Rubin Website
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July 12, 2005 Laith
al-Saud Kara
N. Tina William
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Bratich Amina
Mire Dick
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Zeese Paul
Craig Roberts Website
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July 9 / 11, 2005 Alexander
Cockburn Uri
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Fisk Stephen
Winspear Saul
Landau Behrooz
Ghamari Karl
Beitel Brian
Concannon, Jr. Fred
Gardner John
Whitlow Niranjan
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Tripp Poets'
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Craig Roberts Tariq
Ali Monica
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July 7, 2005 Cockburn
/ St. Clair John
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Marqusee Gilad
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Random Norman
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August 19, 2005 Not a Catholic When It Comes to ExecutionsJudge Roberts and the Death PenaltyBy ELAINE CASSEL We have rightly heard a great deal of commentary on an important question: What would the confirmation of Judge John Roberts - who would take retiring Justice Sandra Day O'Connor's Supreme Court seat - mean for the right of privacy, and for Roe v. Wade? In this column, I want to ask another important question: What would John Roberts's confirmation mean for the Supreme Court's death penalty jurisprudence? My analysis suggests that it may mean a great deal. Justice O'Connor's Recent Death Penalty Vote In 2002, Justice O'Connor joined the majority in an important death penalty opinion, Atkins v. Virginia. There, the Court held -- in a 6-3 vote -- that executing a defendant whom the jury finds to be mentally retarded is unconstitutional. In this case, and in other
recent cases that put limits on the death penalty, the Court
majority cited evolving public "standards of decency"
for its ruling, If Roberts takes O'Connor's seat, a single vote could make it even harder to make further progress in this area. As I will explain below, there is reason to think a Justice Roberts will be quite conservative on the death penalty. Yet, further progress is required if the mandate of Atkins, to take just one example, is not to be an empty promise. How Would a Justice Roberts Vote on the Death Penalty? The public knows little about what Judge Roberts thinks about the death penalty. On one hand, he is a staunch Catholic and the Catholic Church has often taken a stand against the death penalty. On the other hand, in a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases." Roberts was correct that by the time a state death penalty case gets to the Court it may have been evaluated three or four times. The trial court has made legal rulings in the case. SO' probably, has a state appellate court. Then, in a last ditch effort, a defense team may have filed a habeas corpus petition in federal court. But unlike all these courts, only the Supreme Court can decide to overrule prior Supreme Court precedent - as it did in Roper and Atkins. (Atkins reversed Penry v. Lynaugh (1989), in which the Court found that execution of the mentally retarded was not per se unconstitutional.) So Roberts is not right that the Supreme Court is merely fourth- or fifth-guessing determinations made by the prior courts. It is making one entirely original determination, on which no other court has yet ruled: Should prior Supreme Court death penalty precedent be modified under the particular set of facts before it? Today, the Supreme Court's docket is only about half of what it was when Roberts was writing the memo. So if he was truly worried about overcrowding the courts' docket with death penalty cases, that worry ought to have disappeared (though it seems we shouldn't look to Roberts to expand the Court's death penalty docket). But if Roberts's real point was the Court should not take very many death penalty cases, because they are typically reviewed multiple times anyway, he may close even further the already- narrow gate that lets only a few death penalty cases reach the Court each year. Yet, behind each of these appeals is a human being for whom the Court's decision means the difference between life and death. Should this individual's plea for review be framed simply as a matter of docket control?
As a D.C. Circuit judge, Roberts had few occasions to decide criminal cases. But one was a remarkable for its outrageous results. Washington D.C. police made local headlines when they arrested a twelve-year-old African-American girl, Ansche Hedgepeth, in a D.C. subway station. Her crime? She'd put a single French fry into her mouth - violating a ban on eating on the Metro. For this, she was handcuffed, taken to the station in the back of a squad car, and ultimately convicted. In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts saw no constitutional violation - even though, anomalously, adults who committed the same offense, under the law, merely received a citation. Nor did he see any constitutional violation in the gross disproportion between what Ansche had done, and how she was treated by the police. This decision, and Roberts's view that death penalty cases waste the Court's time, bode ill for any hope that Roberts might be more like Justice Kennedy than Justice Rehnquist (who dissented in both Roper and Atkins), when it comes to death penalty cases. After all, Roberts clerked for Rehnquist. Perhaps he shares Rehnquist's view - expressed in his dissent in Atkins -- that the only inroads in the death penalty ought to be those made by state laws and state juries. In other words, according to this view, the Court should in effect abandon scrutiny of the death penalty on Fourteenth Amendment grounds and leave every state to its own standards of due process and cruel and unusual punishment. In light of Roberts's likely role on the Court if confirmed, perhaps the conjunction of two impromptu remarks made last week by 85-year-old Supreme Court Justice John Paul Stevens was no coincidence. Speaking to the American Bar Association, Justice Stevens expressed dismay over the "serious flaws" in the country's use of the death penalty. He also mentioned that the retirement of Justice Sandra Day O'Connor was a "very, very wrenching experience" for him. The First Reason Why Staying the Course Is Not Good Enough: Technology Cuts Against the Death Penalty Readers may ask: Given that Atkins and Roper were significant advances in the Court's death penalty jurisprudence, will it matter very much if a more closely divided Court now does little in this area for a while? The answer is: Absolutely. Though some progress was made on the unfair application of the death penalty in the last 30 years, more is needed. Why? Justice Stevens pointed out two of the reasons in his speech to the ABA. And there are many more to add to these; I'll explore just one more, in this column. First, as the Justice noted, we've increasingly seen death row inmates exonerated as innocent by DNA analysis. Now, granted, in some cases, DNA analysis may be able to prevent such mistakes from ever occurring again - mooting this issue for the future. But in many other cases, the possibility of future DNA analysis may be a compelling reason to keep the defendant alive -- for he may be exonerated in the future when DNA that currently matches neither his DNA, nor anyone else's in the system, is matched to a new arrestee. And of course, this can always happen with fingerprints; because not everyone's prints are in the system, unmatched fingerprints can always be matched to a new arrestee. Our terrific technology, for these reasons, is a reason to wait until we know the truth - not a reason to kill now and ask questions later. America's technological excellence can and should mean a better quality of justice for its citizens. The Second Reason Why Staying the Course Is Not Good Enough: "Death-Qualified" Guilt Phase Juries Second, as Justice Stevens remarked, the Supreme Court allows prosecutors to control the jury in capital cases and seat only "death-qualified" fact-finders. That means that at both the "guilt" and "penalty" phases, judgments are made exclusively by jurors willing to impose the death penalty. The Supreme Court has ruled, conversely, that the defendant is not allowed, over a prosecutor's obvious objections, to seat jurors who have qualms about capital punishment. Behavioral science research into jury behavior has consistently found that jurors who are "death-qualified" and likely to impose the death penalty are also more likely to convict the defendant. That's a violation of the Sixth Amendment's fair trial guarantee, and the Court should say so. At least the "guilt" stage jury - at the very minimum -- should be empanelled without regard to their respective views on capital punishment. To continue the current practice is a gross infringement of fundamental fairness. The Third Reason Why Staying the Course Is Not Good Enough: The Supreme Court Needs to Further Refine Its Mandates There is also a third area where progress is needed, though Justice Stevens did not explore it in his speech: The Court sometimes needs to revisit cases in order to give further direction as to how states carry out its rulings. To see why, it's helpful to look more closely at the case of Daryl Atkins - and what happened when it was sent back to Virginia. Surely that ruling meant that Atkins received more justice in his second "sentencing phase" trial, back in Virginia state court? Not exactly. On August 5, a Virginia jury delivered its finding in the resentencing of Atkins. It found, once again, that he was not mentally retarded, and thus could and should be executed. Two possible reasons exist for this finding: the first, discussed above, that jurors are primed for the death penalty. The second has to do with the proof required to prove mental retardation. Atkins left it to each state to define mental retardation. States have uniformly adopted the American Psychological Association's diagnostic criteria for mental retardation, drawn from The Diagnostic and Statistical Manual of Mental Disorders (DSM). And the current DSM requires that in order to be diagnosed as mentally retarded, a person must currently (1) score below 70 (with 100 being average) on one of the major standard intelligence assessments and (2) have functional impairments that are apparent in daily life, work, and/or educational settings to a degree consistent with the level of retardation diagnosed (there are four levels, ranging from mild to severe). Further, these factors must have been apparent before the individual reached the age of 18 years. The defendant has the burden of proving his mental retardation by a preponderance of evidence. The difficulty in proving that last requirement is very often what sends mentally-retarded defendants like Atkins to their death. It forces them to prove their impairment is a developmental disorder, and not one that was caused by adult-onset factors like head injuries, accidents, or other processes that cause cognitive decline. Practically speaking, such evidence is hard to come by. Few defendants will have been tested for IQ while a juvenile. Today, IQ tests are not done on public school students unless the students are being assessed for special education classes - a process that often results from teacher observation of the student over a significant portion of the school year, and from parental involvement. Many, if not most, capital defendants drop out of school or attend school erratically. Fewer grew up in families with the resources to track their educational and social needs. Moreover, even if defendants were IQ-tested, or tracked into special-education courses as juveniles, records from year ago--20 years in the case of Daryl Atkins-- may not be available. Impressively, Atkins's team found several witnesses, including a schoolteacher who testified that she did not think that Atkins functioned on a "normal" IQ level. But there was no IQ test from his school years. Finally, even the first requirement, a current IQ below 70, may be hard for genuinely mentally retarded defendants to meet. The Atkins case shows why. At his first sentencing, Atkins had introduced expert evidence that his IQ score was significantly below 70-- it was 59, bordering between mild and moderate retardation. At that sentencing, the prosecution's expert, who did not administer an IQ test, said that he could tell from talking to him that Atkins was not retarded. The Supreme Court agreed with the Virginia Supreme Court in finding the prosecution expert's opinion "incredulous." In preparation for his resentencing, Atkins scored between 70 and 74 on IQ tests administered by defense and prosecution experts, a score that put him clearly out of the diagnostic range for mental retardation. Ironically, Atkins's attorney and psychologist noted that his higher scores may be attributable to repeated testing, something they argued in sentencing. The Unfulfilled Promise of Atkins and Similar Cases A jury wanting to spare Atkins life--one not primed for death-- could have and maybe would have. But not this York County jury. Although his co-defendant had long ago been given life in prison, Atkins once again was sentenced to die. Perhaps the Supreme Court needs to revisit Atkins's case, or another capital case involving a mentally retarded defendant, and scrutinize the methods by which states make findings of mental retardation. Maybe the criteria being used are unfair to defendants like Atkins who may be retarded but cannot prove it under existing standards. (The Court has often heard cases involving the same defendant, with different issues, in order to refine its death penalty jurisprudence.) The Court might mandate that states do what some (those that are not as death-happy as Virginia) have already done, and require that a judge make a finding of mental retardation, not a death-qualified jury. Once a judicial finding is made, the death penalty would not be an option for the prosecution. In the meantime, the trial judge ordered that Atkins be executed on December 2. His attorneys may try to bring his case before the Court once again, perhaps to challenge some of the issues I have raised. If sO' would a Justice Roberts
vote against reviewing Atkins's case yet again? Most likely.
It is safe to assume that Daryl Atkins, and defendants in similar
positions, will find one less justice willing to grapple with
what Justice Stevens called the "serious flaws" in
the death penalty. Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime's dismantling of the Constitution at Civil Liberties Watch. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: ecassel1@cox.net
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