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posted by G.M.Heller at Wednesday, March 30, 2005
Wednesday, March 30, 2005
About Me
- Name: G.M.Heller
- Location: Berkshire County, Massachusetts, Washington, D.C., United States
Hailed by Berkshire cognoscenti as that "crank on the grassy knoll".
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3 Comments:
Stack the deck for death penalty
By Robert F. Jakubowicz
The Berkshire Eagle
Tuesday, June 12, 2007
PITTSFIELD
DEATH PENALTY opponents worry that the conservative majority of Supreme Court justices with their recent 5 to 4 split decision of Uttecht v. Brown stacked the deck to execute defendants in capital punishment cases. In that case the defendant was sentenced to death for murder.
The constitutional issue raised by him on appeal was the exclusion of a potential juror to sit on his case. During the examination or voir dire of jurors, a juror was asked about his views on the death penalty. He replied that it should be imposed in severe situations. He also said he did not think it should never happen and there were times when it is appropriate. He was asked to explain when he thought it was appropriate to impose the death penalty. He replied that it was appropriate if he thought the defendant would commit the same crime if he was released from prison.
It was then pointed out to the juror that in this case the defendant, if convicted, would never be released because there were only two alternative penalties, either a life sentence without parole or the death penalty. He replied that even if he knew that the defendant would never be released, he would still be able to consider voting for the death penalty. Based on this exchange, the trial judge dismissed the juror for cause.
Jurors can be removed from a jury panel essentially in two ways. One is by a peremptory challenge by either the prosecutor or defense counsel. Such a challenge entitles either of the parties at the trial to remove a juror from the panel without having to give a reason. These challenges are limited in number. The other method is to challenge a juror for cause. These challenges are unlimited in number, but they require a legally recognized good reason.
The juror in the Uttecht v. Brown case was dismissed by the trial judge for cause. And the issue before the Supreme Court was whether his statements about the death penalty at his examination were legally good reasons for his dismissal for cause.
The Supreme Court in a 1968 case established the basic rule for disqualifying potential jurors for cause in capital punishment cases based on their personal views of that punishment. In that case the defendant was found guilty of murder and sentenced to death in an Illinois court. And at that time an Illinois state law stated that in murder trials it shall be a cause to challenge any juror who on examination states he has "conscientious scruples" against the death penalty or that he "opposed" it.
The trial judge at the voir dire examination of the jurors said: "Lets get these conscientious objectors out of the way, without wasting any time on them." Then in rapid succession 47 jurors were dismissed for cause. Some of these individuals said they didn't believe in the death penalty. Others said they wouldn't impose the penalty in any circumstances. And still others said they had conscientious or religious scruples against the penalty. There was no attempt by the trial judge to find out if their views and scruples would compel them to vote against the penalty in this case.
The defendant in this case appealed on the basis that his constitutional right to an impartial jury was violated by the Illinois state law and the trial judge's application of it to the jury panel. The Supreme Court reversed the murder conviction. The justices said that when a state excludes from a jury all of those who express conscientious or religious scruples against the death penalty and all of those who oppose it in principle, then this crosses the line of neutrality. They said this state law was designed to produce a jury "uncommonly" willing to condemn a defendant in a capital case to die. And this, the justices said, unconstitutionally stacked the deck in favor of executing the defendant.
Later court cases confirmed the rule of this case, namely, that a juror who opposed the death penalty generally or has reservations about it does not mean such a juror should be dismissed unless on further examination such a juror says that he or she is unable to set that view aside and impose the death penalty under the circumstances of the case in question.
The majority in the Uttecht v. Brown case affirmed Brown's murder conviction. They concluded that based on the statements made by the dismissed juror, he had a serious misunderstanding of his role as a juror because of his attitude about the death penalty. And this they said was a good legal cause for the dismissal. Justice Stevens, who wrote the dissent, criticized the majority decision. He said they either changed or misunderstood the well established rule. Stevens said that while the juror had reservations about the death penalty, he did make it clear he could vote for it in this case. And this clearly was within the rule.
The implication of the Uttecht v. Brown decision, as stated by Justice Stevens in his dissent, is that it will encourage trial court judges to include only those jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that under all circumstances they cannot impose it. And in my view this case is a big step toward stacking the deck in favor of killing all defendants in capital cases.
Robert "Frank" Jakubowicz is a former assistant DA and a regular Eagle contributor.
THE BOSTON GLOBE
Letters
Override Patrick's veto of court funds
July 21, 2007
WE WERE dismayed to learn of Governor Deval Patrick's $11.9 million reduction in court funding for fiscal 2008 ("Patrick vetoes $41m in budget," City & Region, July 13), particularly when the total trial court budget represents only 2.2 percent of the annual state budget.
It appears that the trial courts are being unduly burdened with 28 percent of the $41.4 million vetoed by the governor. Underfunding the Massachusetts court system makes no sense when people depend on the courts to hear their cases promptly and to administer justice fairly and efficiently. These cuts would impair the tremendous gains that have been made in recent years as a result of the cooperative efforts of the judiciary, court administrators, legislators, and the bar to improve the court system.
If the governor's vetoes are not overridden by the Legislature, the wheels of justice will slow, and the public will be the loser.
MARK D. MASON
Springfield
JACK CINQUEGRANA Boston
Mason is president of the Massachusetts Bar Association, and Cinquegrana is president of the Boston Bar Association.
Dear Dan Bosley, et al:
I like Dan Bosley because he is really intelligent on public policy issues. While many less than intelligent Legislators get to go to the State House and ignorantly vote on issues, such as Denis E. "Gold-Digger" Guyer, Representative Dan Bosley is able and willing to stand up to the private sector bureaucrats and other high level policy wonks with a high level of intelligence that at times even puts "Ph.D.'s from Harvard University" to shame. I admire Dan Bosley for not always selling out to the private sector power-brokers.
I also like that Dan Bosley said that I can be his friend, despite being persecuted by then-State Senator Andrea F. Nuciforo, Jr. (aka Luciforo) and the long-standing Berkshire County Sheriff Carmen C. Massimiano, Jr. I also like that Dan Bosley is a human being first, and a big government Pol second. I admire his commitment to his family, Northern Berkshire County, and the Commonwealth of Massachusetts. I hope that I am considered to be a friend of Dan Bosley, despite my long-standing disagreements with him on public policy issues and letters of dissent. I would also like to see Dan Bosley be elected Speaker of the State House of Representatives someday.
What I don't like about Dan Bosley is that he is "a public sector bureaucrat impostering a Legislator!" Bosley knows how to administer public programs in a fair and comprehensive manner, but instead, he chooses to stay in the good graces of his State House leadership team and so he chooses to corrupt the issues at hand accordingly. I don't like Dan Bosley because he knows the difference between rational and perverse incentives, and he uses his intelligence for his own perverse ends in order to please his fellow legislative masters.
The column by former Massachusetts Attorney General Scott Harshbarger not only squarely and purposely misses the main point on the ongoing gambling debate, but also, it illustrates my views of the pro's and con's of Dan Bosley's "leadership" on Beacon Hill. First of all, Dan Bosley is a current, not former, State Representative. Harshbarger should get his facts straight. Aside from the other technicalities that Harshbarger addresses in dangerously ignorant and broad brush strokes, the issue of gambling in Massachusetts boils down to PERVERSE INCENTIVES, and Dan Bosley knows it!
The State Lottery is not just about increasing state aid to local governments, but rather, it is also much more about raising tax revenues via regressive means: from the poor instead of the wealthy. The whole point of the State Lottery is to tax the poor so that the Pols don't have to tax the rich -- especially wealthy businesses -- as much as they otherwise would have to tax them without a lottery. By keeping taxes artificially lower than they should be on powerful business interests, the Pols are able to raise even more "special interest" campaign monies for themselves than they would be able to otherwise receive. If a casino cut into lottery revenues, which is the real point of contention, then the state would have to raise taxes on the rich, especially wealthy businesses.
Unfortunately for the People, the whole argument really boils down to who gets to receive what share of regressive revenues from inequitable public and/or private gambling programs/enterprises. The real tragedy here is that no one is advocating for the poor! This is state government at its very worst, and not even Dan Bosley can get away with looking good on this ongoing issue!
In Truth,
Jonathan A. Melle
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SCOTT HARSHBARGER
Casinos -- the new gold rush
By Scott Harshbarger | August 2, 2007
Say it ain't so. The Boston Globe has endorsed casino expansion, giving state leaders who have remained silent a free pass on this failed business/economic development strategy. As with prior casino proposals in Massachusetts, the Middleborough proposal is all about money, special interests, and politics. State Treasurer Tim Cahill, who has been through the "gold rush" lobbying before, is one of the few who has stood tall.
The devil is in the details, and the Middleborough proposal has few details on how it would be executed. This is an invitation to casino owners to feast on gambling profits, with few checks and balances. The gold rush has just begun. The only winners in this game are the casino owners. Is Massachusetts and its leadership ready -- or have we already compromised?
What's the rush? Why are we trying to resolve in just a couple of months a complex, multi-year, billion-dollar deal proposed by a major international financier? The details of the project are not defined; there is no guarantee that the contract will be either binding or legal in Massachusetts and no indication that any agreement will be approved in Massachusetts. With little outcry from public and civic leaders, many feel that the wheels are greased, the financial interests are aligned, and the casinos are on their way. If there is one thing to be learned from other states, it's that you can't just have one casino. If this casino proceeds, it won't just be Middleborough; it will be other cities and towns. Those with alleged fiscal problems will reach out to the Native American tribes, the Legislature, and the governor asking that casinos be allowed to be their "solution." This is Fool's Gold -- a classic example of the consumer warning "if it sounds too good to be true, it probably is." When I was attorney general and president of Common Cause, I raised questions for years about expanding gambling to include casinos in Massachusetts. Until now, I believed that the forces of reason, of those who insist upon information, disclosure, transparency, meaningful economic development, sound fiscal and public policy, and values would prevail in Massachusetts.
What is the reason for the change now? Each time we have new leaders in state government, the casino forces try to pounce. The "need" is a fiction created by casino backers to make billions and establish their Beacon Hill presence. The forces of money and special interest are all on one side here; promises are being made about jobs, tax relief, and development, yet many disturbing issues have not been addressed.
Who is looking out for the public interest? Casino owners will make immense profits and make in two days roughly what they promise to pay Middleborough in one year.
Casino gambling is qualitatively different from the lottery and other gambling forms. In other major casino states, such as New Jersey and Nevada, sophisticated regulations are in place to deal with issues related to casinos -- appropriate laws, significant prosecutorial tools, background investigations, as well as programs to ensure fair games, legitimate profits, and avoid corruption and personal and corporate bankruptcies. None of that has been addressed in Massachusetts.
Even economists who tend to report favorably about casino gambling, acknowledge the "cannibalization" of local businesses near a casino. What about other social costs? According to the National Council on Problem Gambling, 2 percent to 3 percent of Americans have gambling problems. Why is no one asked about the problem or how to prevent it? Who would pay for those social costs?
What about economic impact? Will a casino in Middleborough really take away much business from Foxwoods and Mohegan Sun? Is there a saturation point past which each new gambling venue simply weakens a rival venue?Where is the independent review and objective analysis?
What if the optimistic projections don't come to pass? What if Middleborough doesn't become a destination resort? What will be the impact if New Bedford has a casino and race tracks have slot machines? Who's analyzing this?
This decision should be made based on a full and reasoned debate. Let the legislature debate; let the people weigh in. Let's learn about all the issues surrounding casinos. From my own experience, independent observers who have reviewed this for the past seventeen years, especially former Representative Dan Bosley, have concluded that expanded gambling with casinos is a "bad bet" for Massachusetts. Finally, every state that has consumed the casino Kool-aid still has tax problems, education funding issues, economic development issues. In other words, promises are made, but promises are cheap, and often not kept. The only sure bet is that investors in casinos will make huge profits, and the state will get a slice, but we'll all bear huge social costs. .
Former Attorney General Scott Harshbarger is senior counsel at Proskauer Rose LLP.
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