Clemency News and Developments: 2006

Governor's Adviser Recommends Clemency for Mentally Ill Inmate

Mark Urban, chairman of the Governor's Advocacy Council for Persons with Disabilities, has requested that North Carolina Gov. Mike Easley fully consider death row inmate Guy LeGrande's request for clemency. LeGrande (pictured), who is scheduled for execution on December 1, has been diagnosed as psychotic and delusional.

"Mr. LeGrande was allowed to represent himself even though he believed near the time of his trial that Oprah Winfrey and Dan Rather were speaking to him personally through television sets," Urban wrote. "It appears his mental illness made it impossible for him to get a fair trial." LeGrande asked the jury at his trial to sentence him to death.

Several Eastern North Carolina pastors and bishops have also asked Easley to grant clemency, along with Carnell Robinson, chairman of N.C Black Leadership Caucus, and Julian Bond, chairman of the NAACP's national board of directors.
(News & Observer, Nov. 16, 2006). See Mental Illness. The American Bar Association and the American Psychiatric Association have called for an exemption from the death penalty for those who were severely mentally ill at the time of their crime.

Clemency Urged for Mentally Ill Man in North Carolina

At a press conference on November 1, the North Carolina Black Leadership Caucus called for the governor to commute the death sentence of Guy LeGrande (pictured). Le Grande is scheduled to be executed on December 1. He was allowed to represent himself at his 1996 murder trial, despite the fact that he claimed to be hearing messages from Oprah Winfrey and Dan Rather through television sets. His defense lawyer, Jay Ferguson, said LeGrande falsely believes he has already been pardoned and will receive a large sum of money. "The problem is you have a mentally ill person representing himself," Ferguson said. "When his standby counsel asked the court to review his mental competency, the judge asked the defendant if he wanted to do that and he said no. His response was to tear up the paperwork. So you've got a mentally ill defendant making the call on whether his competency should be examined."

The Black Caucus also pointed to issues of fairness and race in calling for a life sentence for LeGrande. The co-defendant in the case, Tommy Munford, paid LeGrande to commit the murder of Munford's estranged wife. Munford, who is white, received a life sentence. LeGrande, who is black, was sentenced to death by an all-white jury. "The awful reality may be that as a society we value White lives more than we do Black lives. We value all human life," said Rev. Dr. William Barber, State Conference President of the NAACP. "We want to stop the killing of our White brothers and sisters as well as our Black brothers and sisters."
(Herald Sun (NC) (Associated Press), Nov. 1, 2006; NC NAACP Press Release, Nov. 1, 2006). See Mental Illness, Race, and Arbitrariness.

INTERNATIONAL SECOND THOUGHTS: Great Britain Moves to Pardon 300 Soldiers Executed During War

The British Government plans to seek Parliamentary approval of a pardon for more than 300 soldiers executed for military offenses during World War I. The announcement came just after a pardon was revealed for Private Harry Farr, who was executed at age 25 for refusing to fight.

Defense Secretary Des Browne said:

"I believe a group pardon, approved by Parliament, is the best way to deal with this. After 90 years, the evidence just doesn't exist to assess all the cases individually.

"I do not want to second guess the decisions made by commanders in the field, who were doing their best to apply the rules and standards of the time.

"But the circumstances were terrible, and I believe it is better to acknowledge that injustices were clearly done in some cases, even if we cannot say which - and to acknowledge that all these men were victims of war."

(The Guardian - online edition, August 16, 2006; Press Association). See Clemency and Military Death Penalty.

NEW VOICES: Kenneth Starr and Other Officials Join Discussion of Death Penalty

The Pew Forum on Religion and Public Life, together with the Federalist Society and the Constitution Project, recently sponsored a panel in Washington, D.C., examining the application, morality and constitutionality of the death penalty in the United States.

The panel was moderated by Virginia Sloan of the Constitution Project and featured Samuel Millsap, Jr., former Texas District Attorney, William Otis, Counselor to the Head of the Drug Enforcement Administration, Kenneth Starr (pictured), former Special Prosecutor and now Dean of the Pepperdine Law School, and Bryan Stevenson, Director of the Equal Justice Initiative in Alabama. Excerpts from a transcript of the panel's presentation follow (in order of speaking):

As the former Bexar County district attorney in Texas and the head of the office that prosecuted Ruben Cantu, Samuel Milsap urged vigilance from his fellow prosecutors to ensure that innocent people are not wrongfully convicted:

I've come to the conclusion — and it's based not on the Cantu case specifically but rather on other things that I've seen happen in the criminal justice system — that the system as it relates to capital murder is simply broken. It's my view in fact that because it's driven by human beings and decisions that are made by human beings, it can't be fixed, and that as a result what has to happen is that the option to put people to death has to end.
. . .
I would say to Justice Scalia, who said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn't even a crime. Carlos De Luna, the most recent, was probably innocent. And the person I prosecuted in 1985, Ruben Cantu, was probably innocent. And it didn't matter as far as I'm concerned in my position today whether Ruben Cantu was in fact innocent or not: the system simply doesn't work. What we see over and over again are situations where witnesses who have no reason to lie recant testimony and for good reasons.
. . .
I would say to the members of the jury in the Cantu case [ ] the following: you did your job very well; you did only what we as prosecutors asked you to do. You made the only decision that you could've made based on the evidence that was available to you. You are not responsible for the execution of Ruben Cantu. I am responsible for the execution of Ruben Cantu as the prosecutor who made all of the decisions that resulted in the presentation of that case to the grand jury, all of the decisions as to how that case would be prosecuted, and all of the decisions as to how that case would be argued and what we would ask the jury to do.

Dean Kenneth Starr talked about his experience representing two death row inmates and highlighted the importance of clemency in the fair administration of the death penalty:

[M]y own experience in recent years — in the Robin Lovitt case in Virginia . . . and in the still-unfolding Michael Morales case in California — suggest to me that governors and their advisors are tending to neglect this historic role of clemency and pardon in the system.
. . .
Michael Morales' case is illustrative of what I think is a terrible trend, abject deference to the judicial system with its inevitable flaws and a frank unwillingness on the part of virtually every governor in the country, and those who advise them, to fulfill their assigned role in our constitutional structure. This isn't just a Supreme Court admonition; it is taking note of a constitutional structural point.
. . .
And even in our bloodiest war, which pit brother against brother, Mr. Lincoln took time to review personally the files of those seeking clemency. It was part of his greatness.

Bryan Stevenson, who defends people facing the death penalty in the south, questioned society's need for capital punishment:

For the last 20 years I've actually been representing people on death row, and I've spent too many hours next to people who are about to be electrocuted, watching the hair shaved off their body before they're put in the electric chair or squirming on lethal injection tables and seeing the tears and the anguish. And I believe that the death penalty ought to be abolished because it is corruptive. It corrupts all of us. It is corrupting our courts. It is corrupting prosecutors. It is corrupting police. It is corrupting defense attorneys. It is corrupting jurors. It is corrupting our society. I think that because I see so much evidence of it, so much pain and trauma. And it's not just that we're unwilling to talk about it. We don't have the will in this country to recognize what we have to do for people who are disfavored.
. . .
The death penalty is largely employed in this country against the poor, the mentally ill, the vulnerable, and so I say we do have to end it. And to me the question isn't whether people deserve to die for the crimes they commit. The death penalty debate has been terribly misaligned. It's not a choice between the death sentence and no punishment; it's a choice really between two kinds of death sentences. Most jurisdictions have life in prison without parole. It's just another kind of death sentence.
. . .
And so in my mind this issue should not be just a question of whether people deserve to die, but whether we deserve to kill. We have tolerated so much error, so much injustice, so much unfairness; we have a system that is driven by poverty, that is undermined by race.
. . .
And with that history and with that awareness and with that consciousness, I think it's time for the death penalty to end. It's time that we put this behind us so we can begin to deal with these vexing problems of poverty and race and dysfunction and injustice.

  William Otis spoke against the abolition of the death penalty:

There are two central problems, I think, with a strict abolitionist argument. One is that it is a one-size-fits-all, don't-pester-me-with-the-facts sort of position. It simply does not matter, under that position, what the killer did, how utterly incontestable the evidence is of his guilt, how gruesome or cold blooded or calculated it was, how many people he killed, or how many people he killed in the past. None of that matters. A position like that significantly oversteps the justifications typically offered on behalf of the abolitionist position: bad lawyering, possible racism in any given case, that the police are hiding or manufacturing evidence. All of those things can be gone over and are gone over in great detail and over a long period of review in case-by-case analysis under the most exacting standards that the law knows. But that is a far cry from justifying complete abolition in every case no matter what.
. . .
The second basic, overriding problem with outright abolitionism is that it simply shoves off to one side what in any other context is the accepted and indeed the uncontroversial maxim that governs criminal punishment, and that is that the punishment should fit the crime. . . . It's fine to give a long sentence to a carjacker, to a child molester, to someone who poisons kids — teenagers by selling them dangerous drugs, for instance — but that is a different kind of thing. It's frequently said in these debates that death is different. It is different and so are the crimes like Lawrence Horn's and James Perry's and Timothy McVeigh's that bring about the death penalty. Let the punishment fit the crime.

(Event Transcript from the Pew Forum, July 21, 2006). See also Arbitrariness, Clemency and Innocence.  

Advocates in Upcoming North Carolina Execution Present Case for Mercy

Samuel Flippen is scheduled to be executed on August 18 in North Carolina for the 1994 death of his two-year-old step-daughter, Britnie Hutton. On the day of Britnie's death, Flippen made emergency 911 calls seeking medical attention for her. There had been no history of him previously injuring Britnie. Defense attorneys claim that Flippen's actions preceding Britnie's death are strong evidence that he had no intention of harming his step-daughter. The attorneys are seeking clemency from the governor.

Before being sent to death row, Flippen had never been charged or convicted of any crime. He was devoted to his school and church and was known as an upstanding and contributing member of the community. The state originally offered Flippen a plea bargain to second degree murder.

Britnie's father is opposed to Flippen's execution. During the trial, he got to know Flippen's mother and father well. He says he knows how terrible it is to lose a child and does not want Flippen's parents to suffer in the same way. He has said that the State of North Carolina does not need to execute Flippen for justice to be served.

(Attorney Press Release, August 3, 2006). See also Clemency and Arbitrariness

Virginia Governor Delays Execution Pending Mental Illness Inquiry

An hour before the scheduled execution of Virginia death row inmate Percy Levar Walton, Governor Tim Kaine (pictured) issued a temporary stay to allow time for an independent inquiry to determine whether Walton is too mentally ill to be executed. "Due to the history of judicial concern about his mental status, the claims in Walton's clemency petition are entitled to serious consideration. It would be imprudent to either proceed with the execution or grant clemency without further review," Kaine said in a statement issued as he ordered Walton's scheduled execution be delayed for six months.

Legal and mental health experts have debated Walton's mental illness status since his capital conviction nearly a decade ago. During a 2003 hearing, Walton misstated key facts about his cases and repeatedly gave irrational answers when questioned by attorneys. A psychiatrist testified at that proceeding that Walton believed he would ride a motorcycle to Burger King after he was put to death. Walton's defense attorneys noted that their client has exhibited signs of mental illness since he was 16 and that his IQ was measured at 66 in 2003. Psychiatrists generally consider someone with an IQ below 70 to be mentally retarded.

Gov. Kaine's statement appears below.

(Washington Post, June 9, 2006). See Mental Illness and Executions.

COMMONWEALTH OF VIRGINIA
Office of the Governor
Timothy M. Kaine
Governor
FOR IMMEDIATE RELEASE
June 8, 2006

Contact: Kevin Hall
Phone: (804) 225-4260
Cell Phone: (804) 393-9406
Internet: www.governor.virginia.gov

STATEMENT OF GOVERNOR TIMOTHY M. KAINE
~ On the scheduled execution of Percy Levar Walton ~

RICHMOND -- Governor Timothy M. Kaine issued the following statement on the scheduled execution of Percy Levar Walton by the Commonwealth of Virginia:

"Percy Levar Walton was convicted of the murders of Jessie E. Kendrick, Elizabeth W. Kendrick, and Archie D. Moore, Jr. between November 19 and 28, 1996. He killed these three innocent people in their homes * where people should feel most secure from acts of violence. Mr. Walton admitted that he committed these horrific crimes and, after pleading guilty, was sentenced to death.

"Given the nature of these crimes, I have no reason to question the prosecutor's decision to seek the death penalty or the judge's decision that death was an appropriate sentence. In addition to the death sentence, Walton was sentenced to life sentences for each of three robbery convictions, ten years for burglary, and three years for each of six firearms convictions.

"State and federal courts have consistently upheld Walton's convictions. However, courts considering his death sentence have struggled with the question of whether his mental capacity imposes a bar to his execution.

"It is unconstitutional to execute a person who is mentally incompetent. The U.S. Supreme Court has held that a person must have sufficient mental capacity to understand the punishment he is about to suffer, and why he is to suffer it.

"A few days before Walton's scheduled execution date of May 28, 2003, the U.S. District Court for the Western District of Virginia granted Walton a stay of execution in order to determine Walton's mental competence. In July 2003, following extensive submission of evidence about Walton's mental state from 1997 through 2003, the court ruled that he was competent to be executed. A three-judge panel of appellate judges of the United States Court of Appeals for the Fourth Circuit vacated the lower court ruling, directing a broader inquiry into Walton's mental state. Before that inquiry took place, the entire court reconsidered the panel's decision in an en banc review. The en banc Court found Walton competent to be executed by a narrow 7-6 majority.

"In issuing its ruling, the Fourth Circuit properly limited its consideration to the evidence before it regarding Walton's mental state as of 2003. However, three years have passed since the evidence was presented. Walton's clemency petition presents significant information suggesting that he has schizophrenia, that such a mental illness can cause serious deterioration of mental competence, and that there is more than a minimal chance that Walton no longer knows why he is to be executed or is even aware of the punishment he is about to receive. Due to the history of judicial concern about his mental status, the claims in Walton's clemency petition are entitled to serious consideration.

"In order to comply with the law forbidding execution of a mentally incompetent person and to insure just application of Virginia's capital punishment statute, it is important to have current and independent information about Walton's mental condition. It would be imprudent to either proceed with the execution or grant clemency without further review.

"Therefore, I have decided to delay Walton's execution date until December 8, 2006, for the purpose of conducting an independent evaluation of his mental condition and competence, on terms and conditions prescribed by this office."

# # #

MENTAL ILLNESS: Rutherford Institute Calls Attention to Upcoming Virginia Execution

John W. Whitehead (pictured), founder and president of the Rutherford Institute, called for clemency for Percy Lavar Walton, a Virginia inmate scheduled to be executed on June 8. Walton is a psychotic schizophrenic who has suffered with severe mental illness since adolescence. He is on death row for three murders he committed when he was 18 years old. Whitehead writes:

Dubbed “Crazy Horse” by prison officials, Walton . . . is scarcely conscious of the fate that awaits him. While others on death row bide their time in counting down to their final hours, Walton spends his time amassing a large pile of salt, pepper and sugar packets in his prison cell.

And while state officials may view Walton’s pending execution as the final form of punishment, Walton does not see execution as the end of his life. Instead, he believes that his execution will restore life, bringing him, his grandfather and his victims back to life. During his sentencing hearing, he reportedly laughed, waved to family members in the courtroom and wrote incoherent notes to his attorney.

Clearly, this is not a sane man. Nor does he seem to have sufficient mental acuity to view his pending state-enforced death as the ultimate punishment. Most medical experts concur. . . . Two independent doctors have officially diagnosed him as schizophrenic. One doctor noted that Walton has continually suffered from severe depression, an inability to focus and moderate to severe levels of insanity. Another doctor pointed out that he presents symptoms of hallucinations, delusions, bizarre behavior and positive formal thought disorder. State psychiatrist Dr. Patricia General described Walton as “floridly psychotic”. . . .

Walton’s delusions are so far-fetched that he has claimed to be everyone from his own father to the King of Hearts, Superman, Queen Bee and Jesus Christ. He insists that the Bible was written about him and that he hears voices and sees a disturbing image of a face with a fishhook in its eye. Walton also believes that if he closes his eyes, he can become invisible.
. . .

No truly civilized and humane society executes the helpless. To do so is to resort to barbarism. There must be lines beyond which we will not cross, even in the name of seeking justice or a greater good.

(Rutherford Institute, Commentary, May 24, 2006). See Mental Illness and New Voices.


PHILIPPINE PRESIDENT ORDERS COMMUTATIONS OF ALL ON DEATH ROW

Philippine President Gloria Macapagel-Arroyo (pictured) ordered the commutation of all death sentences to life in prison, an order that will spare the lives of the 1,205 people on death row. As her nation marked Easter Sunday, she issued the clemencies: "I wish to announce that we are changing our policy on those who have been imposed the death penalty. We are reducing their penalty to life imprisonment. Anyone who falls and makes mistakes has a chance to stand up and correct the wrong he has committed." Since Arroyo became President in 2001, no death sentences have ben carried out and she has repeatedly issued stays to those facing execution. The Philippines abolished the death penalty in 1987, but it was reimposed by Congress in 1994. Since 1999, when executions resumed, seven people have been executed by lethal injection. The Catholic Church in the Philippines has opposed the death penalty. (Bangkok Post, April 17, 2006). See International Death Penalty and Life Without Parole.

NEW VOICES: California Judge Seeks Clemency for Man He Sentenced to Death

More than two decades after Ventura County Superior Court Judge Charles R. McGrath condemned Michael Morales to die, McGrath is asking California Governor Arnold Schwarzenegger to grant clemency because the conviction was likely based on false testimony from a jailhouse informant. Morales is scheduled to be executed on February 21. McGrath's letter was included in a clemency petition filed by Morales' attorneys, David Senior and Kenneth W. Starr, dean of Pepperdine Law School and a former federal judge.

In his letter to Schwarzenegger, McGrath said that executing Morales would be "a grievous and freakish injustice." McGrath noted that in exchange for testimony given by the jailhouse informant, prosecutors dropped four of six felony charges against him. The informant testified that while he and Morales were together in a crowded cellblock, Morales confessed in Spanish to the rape and murder of Terri Winchell. A later investigation by the state attorney general discovered that Morales does not speak Spanish. McGrath's letter stated that the informant's testimony convinced the jury that the killing was egregious, and his testimony was the only evidence to support the single special circumstance that made Morales eligible for the death penalty.

McGrath told Schwarzenegger that California law requires judges to review the death verdicts of jurors to protect "the integrity of the judicial system, public confidence in the administration of the state's power to impose death and the rights of defendants to individualized sentencing decisions." He then added that had he known of the informant's falsehoods, "I would not have let the death sentence stand, and the awesome decision to spare his life would not be before you at this time. Under such circumstances, executing Mr. Morales would frustrate the design of our sentencing laws."

If executed, Morales would be the first Latino executed in California since capital punishment was reinstated. Senior and Starr note that the decision to bring their client up on capital charges was fueled by racial and ethnic concerns and that the district attorney who prosecuted Morales did not seek the death penalty in six other egregious crimes that happened during the same period, including the beating death of a black teenager by a white male.

(Los Angeles Times, January 28, 2006). See New Voices, Clemency, and Race.

NEW VOICES: Former Warden and Supreme Court Justice Seek Clemency for California Man

Former California Supreme Court Justice Joseph Grodin and former San Quentin warden Daniel Vasquez are urging California Governor Arnold Schwarzenegger to grant clemency to Clarence Ray Allen. Allen, who will turn 76 just a day before his scheduled execution on January 17, is blind and disabled, conditions that his attorneys have argued would make his execution cruel and unusual punishment.

In a letter to Schwarzenegger, Grodin, who authored the court's 1986 opinion upholding Allen's conviction and death sentence, stated, "[T]he issue now - for you as governor and for me as private citizen - is whether the execution of Mr. Allen would serve any legitimate societal interest in either retribution or deterrence. My own judgment, considering the time that has elapsed, the physical suffering that Mr. Allen has endured and the state's likely involvement in that suffering, is that it would not. On the contrary, to execute Mr. Allen now, under these conditions, for a crime which he committed more than a quarter century ago, would itself violate societal standards of decency."

Vasquez, who was San Quentin's warden from 1983 to 1993, wrote in his letter to the governor that Allen's case is "an extraordinary one for which commutation of his death sentence is warranted." Stating that Allen "presents absolutely no risk to institutional safety or to public safety," Vasquez added, "[H]e is physically declined so dramatically since his reception on Death Row that he is physically incapacitated from promoting any violence. According to CDC [California Dept. of Corrections] records and my own observations, he is verifiably blind and disabled. . . . He is an old man who has fallen apart in almost every respect."
(Inside Bay Area, December 29, 2005). See New Voices and Clemency.