PENA MORTE: USA,CONDANNATO
CONTESTA LIMITE LUNGHEZZA RICORSI VIRGINIA ORDINA SINTESI IN MOZIONI, MA AVVOCATI PROTESTANO
NEW
YORK, 17 FEB - Cinquanta pagine per elencare tutti gli argomenti
legali contro la pena di morte e per cercare di salvare una vita, sono
troppo poche: e' l'argomento innovativo che i difensori di un condannato a
morte in Virginia hanno portato all'attenzione della Corte suprema degli Usa,
nel tentativo di bloccare un'esecuzione fissata per il 31 marzo.
Gli avvocati di Dennis Orbe, 39 anni, non contestano l'accusa che il
loro assistito abbia effettivamente ucciso nel 1998 un commesso di
una stazione di servizio, il reato per il quale dovrebbe morire. Il
condannato e
i suoi difensori sostengono pero' che non aveva intenzione di
uccidere e
quindi non merita la massima pena. Il problema e' che la Virginia ha
introdotto una legge che limita a 50 pagine la consistenza di un
ricorso
legale e per questo una corte si e' rifiutata di esaminare il caso di
Orbe, perche' era descritto in 113 pagine.
''E' come tirare al bersaglio con un revolver dal quale sono stati
tolti meta' dei proiettili - ha argomentato Eric Freedman, un esperto di
diritto che appoggia il caso Orbe -. Vorresti sparare sei colpi, ma ti
accorgi che
ne hai solo tre. Cinquanta pagine possono non essere sufficienti per
salvare la vita al tuo cliente''.
Lo studio legale che assiste Orbe ha tentato di sintetizzare al
massimo gli argomenti legali a sostegno degli undici motivi per cui, a loro
avviso, il condannato non dovrebbe essere ucciso, ma gli avvocati non sono
riusciti a restare dentro il limite di 50 pagine. Adesso tocchera' alla Corte
suprema decidere se i diritti di Orbe sono stati danneggiati dalla
sintesi.
VIRGINIA:
Death row appeal challenges rule limiting filings
With successful challenges to the death penalty increasing, a Virginia
man awaiting execution has come up with an attack that draws on all the
others: He says the state's 50-page limit on post-conviction petitions made
it impossible for his attorneys to present all the different arguments that
might persuade courts to reverse his sentence.
Though he admits his crime, Dennis M. Orbe, 39, maintains he did not
intend to kill 39-year-old Richard Burnett, an Exxon convenience store clerk,
early in the morning on Jan. 24, 1998, and therefore should not die. A jury,
however, sentenced him to death.
On Thursday, York County Judge Prentis Smiley Jr. scheduled Orbe's
execution for March 31.
Next month, Orbe will petition the US Supreme Court with the hope that
the justices will agree to hear his theory that the Virginia procedural rule
designed to speed up the litigation process thwarted his right to a fair
defense. With so many different challenges succeeding in courts these days,
50 pages is not enough space to introduce all the arguments that could save
an inmate's life, his lawyers contend.
"It's like target shooting with a revolver from which half the
bullets have been removed," argued Eric M. Freedman, a Hofstra Law
professor. "You'd like to take 6 shots, but you have only 3. 50 pages
may not be sufficient to save your client's life."
Three years ago, Orbe's 113-page habeas corpus petition to the Virginia
Supreme Court was denied because it exceeded the 50-page limit. And despite
efforts to squeeze 11 arguments into the space requirements, Orbe's
attorneys had to pick 4 arguments to drop, including a claim of jury
misconduct and an argument that one of Orbe's original attorneys was
unqualified.
"We went to a condensed font, we cut out every superfluous
word," said Michele Brace, Orbe's attorney. "We tried to compress
as much as possible, but we could still not fit everything into 50 pages."
Page limits in everyday court proceedings have been commonplace for years
and aim to control the court's workload by encouraging attorneys to stick to
their best arguments. In capital cases, however, the restriction is more
recent, having popped up in the past decade in eight states, including
Arizona, Florida, and Oklahoma.
Opponents say it is often impossible to stick to these strict page
limits, considering the complexity of capital cases and the court's
requirements that defense counsel properly establish each argument with a
multitude of supporting facts and relevant legal citations.
Being forced to choose which claims to drop exposes defense attorneys to
an agonizing moral and professional dilemma, they said. The attorneys feel
they are gambling with their client's life by having to select certain
claims while sacrificing others that might have been successful arguments.
Orbe is not an innocent man. Security video caught him shooting Richard
Burnett in the chest as he stepped away from the store's cash register. It
was the peak of a 10-day crime run that also included shooting another
robbery victim in the leg, taking three women hostage, and leading a
high-speed car chase on Richmond roads, where he was caught. One of the
kidnapped women, Patricia Tuck, says she still has trouble being alone and
vividly remembers Orbe's words when he locked them in a bedroom closet:
"Don't try anything stupid, because I've killed 1 person, and I don't
have anything to lose."
Supporters of the death penalty say Orbe's crime meets all the
requirements for a death sentence because of the cruel and depraved manner
in which it was conducted. They believe his page-limit argument is a classic
example of defense attorneys tying up the court system with frivolous claims.
"For death row inmates and their counsel, every delay is a win, and
they delay at all costs," said Dianne Clements, president of
Texas-based Justice for All, a victims' group. "It's a pathetic process
where the videotaped guilt of this killer is usurped by attorneys who are
verbose and use big font. A 50-page limit should be sufficient if the issue
is presented succinctly and to the point."
In the past, the US Supreme Court has maintained that there is a
heightened need for reliability on capital cases. Jeffrey L. Kirchmeier, a
law professor at the City University of New York School of Law, argues that
a page limit compromises that position.
"Basically, someone could die because of a procedural matter,"
he said.
Tim Murtaugh, a spokesman for the Virginia attorney general, contends
that Orbe had ample opportunities before the habeas corpus petition to enter
the 4 arguments that his lawyers had to drop. Murtaugh added that the
arguments were dismissed.
According to the American Bar Association, that does not matter because
there is always the chance that a court, particularly the Supreme Court,
will reverse its own ruling. And in its practice guidelines for lawyers in
capital punishment cases, the bar association maintains it is an attorney's
duty to test existing laws and assert legal claims even when the chances of
success "are at best modest."
Pointing to the high court's recent reversal on the death penalty for
mentally retarded inmates and last month's decision to reconsider the
execution of juveniles, Kirchmeier noted that the Supreme Court has often
changed its mind.
"You can never be sure what's going to be the next successful claim,"
said Kirchmeier, coauthor of a Supreme Court amicus brief filed by the New
York Bar Association supporting Orbe. "Attorneys for years argued that
they have mentally retarded clients who shouldn't have been executed.
Eventually they won, but it was a losing claim for a lot of people."
And because habeas corpus guidelines prevent lawyers from raising new
claims in federal court that were not first raised at the state level, they
have probably lost the chance to raise the arguments later.
For example, Kirchmeier cited the hundreds of inmates on death row in
Nebraska, Arizona, Montana, Idaho, and Colorado who never challenged the
idea that a judge, rather than a jury, applied their death sentence. In
2002, the US Supreme Court ruled that only a jury could impose death, but
these other inmates had never challenged the judge's decision at the state
level, and are thus prevented from raising it in federal appeals.
The inmates are hoping the Supreme Court reverses itself again, and
allows new issues to be raised at the federal level.
Meanwhile, a rash of such reversals has only increased the public
skepticism about the reliability of capital punishment that has been brewing
since the introduction of DNA evidence and former Illinois governor George
Ryan's decision in 2000 to declare a moratorium on state executions.
Since the death penalty was restored in 1976, 112 death row inmates have
been exonerated, according to the Death Penalty Information Center. And the
awareness that people have been wrongly sentenced to die has led jurors to
hesitate before condemning someone to die, opting instead for life in prison.
Consequently, in the past 3 years, the number of death sentences issued has
dropped from an average of 300 a year in the 1990s to an estimated 139 last
year.
"There is queasiness with the realization that innocent people can
be sentenced to death," said John Blume, a habeas corpus specialist and
the director of the Cornell Death Penalty Project.
Orbe filed an initial petition in the fall asking the Supreme Court to
hear his argument that he should be allowed to present the court with the
remaining 4 arguments for why he should not be executed. The request was
denied without comment, presumably because Orbe had not exhausted his
appeals at the state level. Now that he has, Brace, Orbe's lawyer, expects
to submit a revised petition to the court next month, a week before his
scheduled execution.
Specialists hesitate to speculate what impact a favorable decision by the
Supreme Court might have. If Orbe were to win, it would open the door to
bulkier habeas corpus petitions. But even if he loses, it probably won't be
the last time the high court hears an appeal about an unfair page limit.
"The moral of the story is to raise every claim and keep raising
them every single time because the courts, especially the Supreme Court,
have shown a proclivity to change their minds," said Ronald Tabak,
cochairman of an American Bar Association committee on the death penalty.
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