Troy Davis has been executed amid much protest and controversy.  As the memory fades and people turn to other causes it is important to note that he is not the 1st person to be executed whose factual guilt was in question and unfortunately  through sheer probability wont be the last without major reform to the death penalty system.  The saga will play on indefinitely until we as a nation including the Supreme Court realize that no number of the legally guilty executed justifies executing one factually innocent person. Finality in the system is not a valid excuse for killing when we as human beings apart from the system, are unsure of guilt.

Jonathan Bruce Reed is on trial in Dallas County for the alleged murder of 26-year-old Wanda Jean Wadle in November 1978.  He is facing the death penalty. This is Reed’s third trial.  His previous two convictions and death sentences were overturned (the jurors will not know this).  The prosecution’s case rests on the testimony of one eyewitness, the roommate,  Kimberly Pursley, who was also attacked when she came home. Pursley survived by feigning unconsciousness. She was unflappable in her testimony that Reed is the guy.  Another witness, Mickey Green, testified that Reed knocked on her door at the same apartment complex, posing as a maintenance man just before Wadle was attacked. While the defense has done the usual cross exam to poke holes in the identifications, unlike Troy Davis, no witness has recanted.  There is even DNA in this case.  The catch is that it is not Reed’s DNA. The defense presented evidence that the DNA found on Wadle came from two unidentified men, but not Reed arguing that one of those men is the real killer.  The prosecution has countered that as Wadle was not raped, this could not be the case and was probably consensual sex.

Another twist to the case was the overturning of a ruling by Dallas County Criminal District Court No. 4 Judge John Creuzo precluding the state from seeking the death penalty.  Creuzo had granted a motion by Reed who argued that the 30+ year delay in his case caused by the state’s alleged misconduct had made a constitutionally adequate sentencing investigation impossible with regards to mitigation. Key records are no longer available. Mr. Reed’s father and his stepmothers who raised him are deceased, as well as other critical witnesses, including teachers, childhood physicians and mental health workers.

While it “feels” like Reed murdered Wadle, one eyewitness after 30 years with no DNA linking him to the crime  is not enough to justify sending him to his death if convicted.  With no way to mitigate after the passage of 30 years, and this being Texas, if Reed is convicted, a lethal injection is waiting.  Hopefully a higher court will take another look at this issue and side with Creuzo.  I don’t know if Jonathan Reed will generate the same outcry as Troy Davis but he should.  Not because he is innocent but because someone will be.  It is a statistical certainty. That is unacceptable.

Humberto Leal has been convicted of rape and murder.  He is sentenced to death.  He is to be executed by lethal injection sometime after 6p.m.(CT) today.  He  was convicted in 1995 in the  rape and murder of teenager Adrea Sauceda.  A  jury took 45 minutes to convict him.

This would seem to be just one more routine execution of which Texas leads the nation. It would also seem that if anyone deserved to be executed, Mr. Leal should certainly have that place in death penalty lore.  There is one minor twist.  Mr. Leal is a Mexican national. He was allegedly never told he had a right to contact the Mexican consulate after his arrest, which is a violation of the Vienna Convention. The Vienna Convention is an international treaty governing in part, the treatment of citizens of different nations outside of their home countries.  The United States is a signatory to this treaty.  Texas Governor Rick Perry however, contends that Texas is not bound by the treaty.  In the 2008 case of  Medellin v. Texas, the US Supreme Court noted that the  Vienna treaty was not self-executing.  It did not trump the law of a state unless and until Congress implemented it with a statute.

The Obama administration is fighting to save the life of Mr. Leal.  The administration claims there a bigger picture at stake. The picture frame encompasses the rights of United States citizens who may find themselves in similar situations in Mexico and other foreign nations.  The administration has asked the U.S. Supreme Court stop Texas from executing Leal and delay the execution for up to six months to give Congress time to consider legislation that would enforce the U.N. treaty.

The bottom line is that regardless of any effect this has on consular relations and rights of American nationals in other countries, given the Medellin precedent Governor Rick Perry will almost certainly refuse to stay the execution without SCOTUS intervention which, given the Medellin ruling, probably will not happen.  Texas will get it’s pound of flesh to which it is morally entitled if you support the death penalty.  Would consular access have resulted in Mr. Leal not making incriminating statements?  We will never know.  What I do know is this. Humberto Leal will probably be executed today and  I won”t be visiting Mexico any time soon.

I am pro-death penalty.  I think there are some people who simply deserve to die for their heinous acts.   I also understand the argument that there is no true certainty in the criminal justice system and there should therefore be no death penalty. One innocent person executed is one too many. That’s for another blog.

That is not the issue that troubles me today with regards to the Ronnie Lee Gardner execution.  I  am comfortable the right man was sitting in the firing squad chair.   I am troubled by the fact that witnesses saw him move after the bullets entered his body. Did he suffer?  Who knows. Could have been normal body reactions to such trauma.  That is not the point.   The point is that any thought that this cruel murderer may have suffered and died by  bleeding out in his last moments churns at my stomach and soul. I don’t know why.  Is compassion for even the worst of society a bad thing?  I am not sure how that defines me.  It reminded me of a scene from Monsters Ball where the prison guard played by Heath Ledger vomited during the transfer  of the condemned man to the electric chair.  The head guard played by Billy Bob Thornton attacked him for ruining the man’s “last walk”.  Regardless of the heinous nature of that man’s humanity and viciousness of crime, he was entitled to as much peace as a human being in civilized society can have during those last moments in life.  This of course is not a movie.  Randy Lee Gardner is dead.  In my opinion justice was served.  I am just not sure my sense of humanity was.

Martin Grossman is set to be executed in Florida on February 16th.   He was convicted of murdering Pinellas County wildlife officer, Wildlife Officer Margaret “Peggy” Park, 26, in 1984.  He and a friend went to a wooded area on Dec. 13, 1984 to shoot a stolen handgun.  Park interrupted them. Grossman pleaded with her not to report him for having the gun and being outside Pasco County, both of which were violations of his probation for burglary.

During a struggle with Officer Park, Grossman got control of  her gun and shot her in the head.

A jury convicted Grossman of first-degree murder and unanimously recommended a death sentence. Taylor, who was 17 at the time, was convicted of third-degree murder and was released in community supervision after serving two years and 10 months of a seven-year prison term.

There is now an outpouring of support in the Jewish community asking the Governor of Florida to commute his sentence to life in prison.  In reviewing the “fact sheet of Amnesty International who opposes the death penatly in general, the main points seem to be as follows:

1.   Ineffective Assistance Of Counsel at Sentencing-The Appeals Court rejected this claim.

2.   A forensic psychologist hired years after conviction called Grossman’s mental state into question as to whether he could act in a pre-mediated fashion or whether his conduct should be mitigated.   Grossman had a “a high level of fear and depression, and parental neglect, abandonment and mistreatment.”

3.   The jury was not presented with evidence that Grossman was high on mind-altering drugs that negated the state of mind needed for a 1st degree murder conviction.

4.   The length of time Grossman has been on death row-24 years.

5.    He has become a devoutly religious Jew and has been a model prisoner.

The U.S. Supreme Court denied an appeal in 2007. The Florida Supreme Court rejected has latest one 11 months ago.

There is no reason for the governor to spare this guy’s life.

His ineffective assistance  of counsel claim has been considered on appeal and rejected.  It is not a proper purview of a Governor for commutation.

A judge has rejected a motion to consider the fact that the jury never heard about  Grossman being on mind-altering drugs at the time of the crime. This decision was proper.  Voluntary ingestion of illegal drugs generally does not negate the element of intent.

If there was evidence that despite the appeals court ruling, the 1st degree conviction was so out-of-whack with the facts I might be on board with looking at that.  That however is not the case here  Mr. Grossman killed a law enforcement officer in the course of her duties.  He knew she was an officer when he killed her.  In my mind, that is 1st degree murder.

His claim of “finding religion” fails as well. He has become a devout Jew gaining the support of Rabbis and Jewish organizations claiming he is a “changed person”.   I am Jewish.  I am glad Mr. Grossman has found his god in our religion.  That does not get him off the needle.  Theological considerations are not a proper criteria is making a commutation decision.  Are we going to commute the sentence of  every prisoner who claims he/she has “found god”?  I hope Mr. Grossman’s god absolves and blesses him in the after-life.  He however has been judged by his peers with due process on earth.

The fact that he has been a model prisoner carries no weight.  That gets him extra commissary and television privileges, not a  pass on the judgment of a jury.

Matthew Grossman, absent new evidence relating to his innocence or guilt or that the sentence is completely out of whack with the facts(which they do not appear to be) should be denied commutation and  executed as scheduled on February 16th.