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Judge Richard FitzGerald Comments on the Death Penalty

Judge Fitzgerald

Judge FitzGerald

I went on the bench in 1975 and retired after 25 years.

During my first year as judge and for the next five years if a juvenile committed a serious violent offense we had the discretion to decide if a child should remain in juvenile court or could be tried under ordinary law. Children were not eligible for the death penalty. Kentucky then changed the law removing judicial discretion and allowed juveniles to qualify for the death penalty.

In one of the death-qualified cases I sent to the grand jury, neither the juvenile court nor the trial court was informed of the horrific abuse the defendant witnessed as a child. Years later, the U.S. Supreme Court found this was unconstitutional. Great work by Kentucky attorneys Gail Robinson and Kevin McNally brought attention to this anomaly of law.

In 1982, my wife’s parents were murdered in LaPorte, Ind. My father-in-law was the mayor; they were attacked by a disgruntled, city employee. I witnessed the grief and pain their slayings brought to my wife and her six siblings. Personally, I had problems saying the Lord’s Prayer in church.

The prosecutor allowed the family to make a decision whether to seek the death penalty. After prayerful consideration, the family decided not to seek death in part for some form of finality and a belief in the sanctity of life.

After their murders, I no longer tried criminal cases and stayed in juvenile and family court. I could not trust myself while still struggling with grief and anger.

In a civilized society, we give up our right for vengeance to the state with the expectation that a fair trial with due process will determine guilt or innocence. It is important that victims get a sense of finality. Life without parole or determinate sentencing gives finality where victims can process their grief. It also saves them from being subjected to numerous and costly court procedures.

Photo: Richard FitzGerald Facebook Photo

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Federal Court Declares California Death Penalty Unconstitutional.

A Federal Court for the Central District of California has vacated the death sentence of Ernest Dewayne Jones and declared the California death penalty unconstitutional.

In its decision, after describing how remote the possibility of death is for Jones and about how dysfunctional the system there is, the Court wrote:

Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

In the 29-page order, the description there frequently mirrors what is happening in Kentucky. The American Bar Association report detailed flaws in the Kentucky system that no one has begun to address.

California has the largest population of death row inmates in the nation. The decision will certainly be appealed and opinions differ about whether or not this decision will stand. Nonetheless it highlights the arbitrary nature of the death sentencing process.

This action takes place as Kentucky lawmakers are paying more attention to the death penalty. The interim joint Judiciary Committee of the General Assembly plans to spend almost an entire meeting in August discussing the issue. More about that when the official announcement of the meeting is announced.

We hope readers will keep their State Senators and Representatives informed about dramatic developments like today’s decision regarding California so they can carefully consider whether a change in Kentucky’s policy of executing a few persons at great expense to the Commonwealth is wise.

To read the full decision of the Court, click here: Federal Court strikes down California death penalty.

Map: California Department of Corrections and Rehabilitation

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Revered Defense Attorney Gunned Down

Mark Stanziano

On June 27, an armed man, described as mentally ill, gunned down prominent defense attorney Mark Stanziano. Mark was an advocate for many defendants whom others considered not deserving of his time and talents.

We note his death here because of all the hours he spent working to keep the Commonwealth from killing many of those whom he represented. He stood steadfastly in the way of the killing machine in Kentucky and limited the number of those who could be on our death row.

At his funeral The Advocate Messenger reported that Public Advocate Ed Monahan said,

“He was a warrior who changed the stars for his clients.”

One of those clients, Bryan Daniels, was not on the program but gave a tear-choked tribute to the man who “saved my life.”

Daniels, of Wayne County, was accused of murder in 2009 when his 20-month son died after drinking drain cleaner left over from a methamphetamine cook at an apartment where they were staying. Stanziano won an acquittal.

“I’m a free man now because of him,” Daniels said. “Mark believed in me when no one else did. He fought for me when no one else would. Mark treated me like a son. He taught me how to be a better man.”

The Lexington Herald-Leader reported that a fund honoring him is being established:

Several of Stanziano’s classmates started a drive to collect money for an endowment in his name to support the criminal law moot court team at the law school.

“We hope to keep Mark’s legacy alive by helping students improve their skills in the criminal law field,” those behind the fund drive said in a message to other graduates.

On July 1 Monahan used his authority and named Stanziano the first Honorary Kentucky Public Defender. Read his remarks and those of many who worked with him by clicking here.

KCADP joins others in expressing gratitude for the life he lived and for the lives he saved. His family and friends are in our thoughts and prayers during this difficult time.

Photo: Facebook Page, Mark Stanziano

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U. S. Supreme Court: Can’t Execute Mentally Disabled

In a Florida case, the U. S. Supreme Court has ruled states can’t simply use an IQ score to determine the mental disability of persons facing the death penalty. The Wall Street Journal reported that in its 5-4 decision the Court found that

Florida’s practice disregarded modern medical standards, which consider an IQ score an imprecise measurement that shouldn’t be viewed in isolation when determining intellectual ability.

The Journal added that the

ruling follows a 2002 Supreme Court holding that said executing intellectually disabled people violates the Eighth Amendment’s prohibition of cruel and unusual punishments, and that had defined the condition as an IQ of “approximately 70.”

In the opinion Kentucky and Virginia are singled out as the only two states whose statutes require the 70 IQ score. The Coalition and its partners successfully advocated for passage of a bill in 1990 that ended the death penalty for persons who are mentally disabled. The U. S. Supreme Court used that and the fact other states had done the same in reaching its 2002 conclusion in Atkins.

After passage of Senate Bill 172, sponsored by State Senator Danny Meyer, and signed by Governor Wallace Wilkinson, the KCADP newsletter described how all this came about. Click here to discover why the 70 IQ requirement ended up in Kentucky law.

Photo: Courtesy Death Penalty Information Center


Look Who’s Talking About the Death Penalty

The recently botched execution in Oklahoma has catapulted discussion of the death penalty to a new high and revealed some new voices, including retired Lt. Col. Oliver North.

Writing on Politisite.com, Kevin Williams tells us that North has opposed the death penalty for a long time. In a conversation recently North reiterated that position:

“I’m a “law and order” guy. Don’t get me wrong. Individuals need to be held accountable. I don’t believe in mass punishments and group responsibilities and the kinds of fuzzy-wuzzy stuff of the Left, but I have always felt… and always said that there are very serious questions about the justice of the death penalty.

North isn’t the only person who recognizes problems with the implementation of the death penalty. In the New York Daily News, S. E. Cupp makes a conservative case calling for an end to executing prisoners. In answering her own question, “Is it just,” she says:

Starting from a pro-life point of view, it hardly seems consistent with a culture that values life. In fact, a couple of Republicans in Kentucky are reconciling that very notion right now. State Rep. David Floyd introduced a bill to repeal the state’s death penalty, arguing in the Louisville Courier-Journal that conservatives “should not support a state government program that can kill innocent people.”

The other Republican she refers to is State Rep. Julie Racque Adams, who served as the primary co-sponsor of HB 330.

Running against the tide was the Rev. Albert Mohler, president of Southern Seminary. In a recent column on the CNN religion blog titled “Why Christians Should Support the Death Penalty” he states:

I believe that Christians should hope, pray and strive for a society in which the death penalty, rightly and rarely applied, would make moral sense.

This would be a society in which there is every protection for the rights of the accused, and every assurance that the social status of the murderer will not determine the sentence for the crime.

And even though he points out that the above conditions do not exist, he does not call for a moratorium on executions until they do.

Shane Claiborne is a prominent social activist, advocating for nonviolence and service to the poor. He is also the author of the popular book, The Irresistible Revolution: Living as an Ordinary Radical. His response to Rev. Mohler’s column points to the absence of any mention of Jesus by Rev. Mohler:

[He] wrote a piece this week defending the death penalty. In his 1200 word argument for why Christians should support the death penalty, he does not mention Jesus a single time.

Digging deeper, as you read the official pro-death penalty statement of the Southern Baptists, there is not a single reference to Jesus or the Gospels.

At the end of his reflection Claiborne concludes:

We cannot ignore Jesus as we discuss the death penalty. As was the case with slavery, many Christians misused Scripture to justify injustice and ended up on the wrong side of history. It is my hope that Southern Baptists will reconsider their statement on capital punishment in light of Jesus, and not have to apologize 100 years from now for being on the wrong side of history.

KCADP believes we are on the right side of history by working together to end the death penalty in Kentucky. If you have not done so, please become a financial supporter of the Coalition and sign up to receive our eNewsletter today.

Photos: courtesy Wikimedia Commons

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