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Attorneys debate executive clemency

Executive clemency, which goes back to the days of the Roman Empire, when Pontius Pilate spared Barabbas' life, is dwindling away in America.

So said four capital-case lawyers who spoke Monday evening at the University at Buffalo in Amherst on "Executive Clemency in Capital Cases."The event was sponsored by the UB Capital Advocacy Project.

Why should governors have the privilege of making the eleventh-hour phone call to cancel a convicted murderer's execution?

Jonathan Harris, the California lawyer who worked in vain to avert the execution last Dec. 13 of Stanley "Tookie" Williams, co-founder of the Crips street gang, said this goes back to Roman times but was traditionally a review of factors that hadn't come up during the trial.

But today, he said, governors look for legal loopholes to justify clemency instead of asking whether the prisoner actually committed the crime.

Williams published nine books warning schoolchildren about gangs and prison and was nominated for Nobel Prizes for both literature and peace, he said.

"This was a place in America for clemency based on rehabilitation," Harris added. "We were not successful."

Sarah Nagy, an Indiana lawyer who won clemency for the mentally ill killer Arthur P. Baird II, said giving the clemency option to the executive branch of government provides a check and balance against the judiciary and the legislature.

"It's impossible to eliminate politics from the clemency issue," said John Blume, a Cornell University law professor who recently argued death-row inmate Bobby Lee Holmes' case before the U.S. Supreme Court. "I mean, death is politics."

Blume said death sentences are sought, defended and upheld by elected district attorneys and elected appellate justices.

The U.S. Supreme Court reinstated the death penalty in its 1976 Greg v. Georgia ruling. Since then, Blume said, there have been only 229 clemencies granted. In Texas, just one clemency came while 361 killers were executed.

"Many people say it's because the appellate process is more extensive and elaborate than it once was, eliminating the need for clemency," he said. "But I disagree."

Bloom said governors don't have the backbone to ask whether a prisoner actually committed the murder. Instead, he said, they look for legal errors that the appeals courts should have found.

"Nobody on our death row is innocent," said Harry Weller, the senior appellate prosecutor for the State of Connecticut. Serial killer Michael Ross died last May 13, the state's first execution in 45 years.

"None of those now on death row have ever contested their guilt," Weller explained. "It's harder to get a death penalty in Connecticut. So it's not worthwhile for prosecutors to seek it. Connecticut juries are required to make a reasoned moral judgment on whether the prisoner should die."

As for the governor's role, Weller said, "Clemency is an act of grace -- there should be a reason for grace. If not, the death warrant must be executed after all appeals have failed."

e-mail: acardinale@buffnews.com

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