Death Row Reversals

(From Philly.com)

Harrison "Marty" Graham was sent to death row in 1988 for strangling seven women, whose corpses he kept beneath piles of trash in his North Philadelphia apartment. In 2003, a state trial-court judge threw out the sentence, and Graham now is serving life.

Kenneth Ford was condemned to die after a jury found him guilty in 1991 of killing two women with a 10-inch Bowie knife in a West Philadelphia candy store. In 2002, the Pennsylvania Supreme Court threw out the sentence, and Ford now is serving life.

Joseph Szuchon lived with his girlfriend in the city until she broke up with him and moved to Erie. In 1981, he fatally shot her there in a cornfield. In 2001, a federal appeals court threw out his death sentence, and Szuchon now is serving life.

In just the last seven years in Pennsylvania, an estimated 50 inmates who were facing execution have gotten new leases on life behind bars, as federal and state judges overturn death sentences at a rate that is buoying opponents of capital punishment and infuriating prosecutors.

Departures from Pennsylvania's death row - with 225 residents, the fourth largest behind California, Florida and Texas - have roughly equaled arrivals since 2000, and could soon eclipse them.

The appeals pipeline is clogged with condemned inmates fighting for life without parole, at the very least. Also since 2000, about 75 of them have scored significant interim victories - new sentencing hearings or retrials - typically after courts found serious legal errors in the way their original cases were tried.

Eyes around the world have been focused on one in particular: Mumia Abu-Jamal, on death row for the 1981 murder of Philadelphia Police Officer Daniel Faulkner.

A federal judge concluded in 2001 that Abu-Jamal should get a new sentencing hearing, a decision that was quickly appealed. He awaits a ruling by the U.S. Court of Appeals for the Third Circuit, where the case was argued in May.

Meanwhile, well out of the public spotlight, state and federal judges have been ruling in favor of other Pennsylvania death-row inmates, including three in just the last two weeks. A convicted murderer from Bucks County got his death sentence changed to life in prison; one from Washington County was granted a retrial; and one from Philadelphia won a new sentencing hearing.

The reversals since 2000 have come from a range of courts. The Pennsylvania Supreme Court issued about 20 percent of them. About 50 percent were overturned by state trial judges during the next level of review. And federal judges handed down about 30 percent of the reversals.
Despite the size of Pennsylvania's death row, executions have been extremely rare since the penalty was reinstated in 1978: three "volunteers" who gave up their appeals and asked to die.

Before them, the last execution was in 1962, when Elmo Smith was put to death for a Montgomery County rape and murder.

Now, prosecutors are complaining, the wave of reversals has turned capital punishment in the state into even more of an expensive charade.

"There is no death penalty in Pennsylvania," said Montgomery County District Attorney Bruce L. Castor Jr. Four death sentences from the county have been thrown out in the last seven years.

State Supreme Court Justice Ronald D. Castille, who often has voted to uphold death sentences, joined his fellow jurists in overturning one just this week. He said that the long appeals process and the reversals have meant that the death-penalty statute is not enforced. "It's only on the books," said the former Philadelphia district attorney.

Death row is all too real, countered Jules Epstein, a Widener University law professor who represents inmates appealing their cases. "There clearly is a death penalty in Pennsylvania," he said. "People get sentenced to death. People sit on death row. And the real reason people haven't been executed yet is because of tremendous problems within the system."

Courts nationwide are becoming more cautious in capital cases, according to Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit research group in Washington. "They're starting to review cases with a more realistic eye about what could be lurking underneath," he said. In Texas, which has executed more prisoners than any other state, four death sentences were reversed just this year by the U.S. Supreme Court.

In New Jersey, the state Supreme Court famously reversed death sentences before a execution moratorium was declared in 2005; its death row is down to eight inmates.

Some of the newfound caution, Dieter said, can be attributed to an attitude shift about the death penalty, stemming largely from the exonerations of at least 75 death-row inmates nationwide since 1993. In Pennsylvania, Nicholas Yarris won his freedom in 2004 when DNA tests cleared him of a Delaware County rape and murder - after 22 years on death row.

Most Americans still support the death penalty, according to a Pew Research Center poll released this month, but that majority has shrunk from 78 percent to 64 percent since 1996. Increasingly, Dieter added, there is support for life without parole as an alternative.

Some sentences have been thrown out because U.S. Supreme Court rulings demand it. At least seven inmates on Pennsylvania's death row, including Marty Graham, were spared when the justices barred the execution of the mentally retarded in 2002. Several others who committed their crimes as juveniles escaped the death penalty after the high court in 2005 abolished it for offenders under 18.

However, the bulk of the reversals have turned on legal errors in the original trials, and most of them were in Philadelphia cases dating to the 1980s and early 1990s. In Kenneth Ford's case, the flaw was "ineffective assistance of counsel" - his lawyer acknowledged that he "dropped the ball" in failing to present mental-illness evidence that might have led the jury to opt for life. In Joseph Szuchon's, a prospective juror had been unfairly dismissed.

Abu-Jamal has argued that African Americans were systematically excluded from his jury, which was made up of 10 whites and two blacks. He also has contended that the trial judge, Common Pleas Court Judge Alfred Sabo, was biased against him and gave misleading jury instructions.

Sabo, who has since died, had a controversial record in capital cases, presiding over trials that ended in 32 death sentences. So far, 24 have been reversed.

Philadelphia Common Pleas Court Judge Benjamin Lerner, who was chief defender in Philadelphia from 1975 to 1990 and now presides over homicide cases, said that city cases from the 1980s have been reversed for good reason.

The court system, he said, "frequently trampled all over the rights of defendants."
Those facing the death penalty often got lawyers hand-picked by judges, who frequently selected friends who didn't necessarily know much about death-penalty law.

Lerner said there also were a few aggressive homicide prosecutors who were not concerned about defendants' rights - just getting convictions.

The result: Defendants landed on death row.

Since then, more stringent training requirements have been put in place for defense lawyers, Lerner said, and the quality of representation in capital trials has improved. And he now gives high marks to homicide prosecutors.

"The court's a lot different, too," Lerner said. "By and large, the judges who have been trying homicide cases for the last eight to 10 years . . . are far more concerned about fair trials."
Changes in the law have made it harder for death sentences to survive "hyper-technical" judicial scrutiny, said Deputy Philadelphia District Attorney Ronald Eisenberg. He added that he also believes courts are "uncomfortable" with the death penalty.

"The higher rate of reversal here," he said, "has to be the attitude of judges."

A review of reversals in Pennsylvania cases shows they were ordered by judges of varying social philosophies.

For example: Antuan Bronshtein was sent to death row in 1994 for the murder of a Montgomery County jeweler. In 2005, a Third Circuit panel ordered a new sentencing hearing; one of the members was Samuel A. Alito Jr., now part of the conservative bloc on the U.S. Supreme Court.

Reversals by an ideological array of judges show that "the problems with the death penalty in Pennsylvania are systemic, endemic and pervasive," said Robert B. Dunham, a federal defender who is part of a special unit known statewide for winning appeals for death-row inmates. By his count, judges have granted new trials or sentencing hearings to 200 condemned prisoners in the state since 1978, with the majority handed down just since 2000.

So will there ever be an execution in Pennsylvania?

Lawyers who follow capital cases say that Alfred K. Albrecht, convicted of setting the 1979 fire

that killed his wife, daughter and mother in Bucks County, is at risk. The Third Circuit, one of the last appellate stops for death-row inmates, ruled against him earlier this year.

If Abu-Jamal loses in the Third Circuit, he, too, will be in jeopardy.

But so far, said Castor, the Montgomery County district attorney, the courts are sending a loud message to those on Pennsylvania's death row: "If you hang in there long enough, you're eventually going to win."

Contact staff writer Emilie Lounsberry at 215-854-4828 or elounsberry@phillynews.com.