The Death Penalty: An American History

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Summary: More Florida Death Penalty Litigation History:
Review: After Mark Olive voluntarily resigned from CCR about March 1988, Billy H. Nolas became the next Chief Litigator.

It is extremely odd that Michael Mello (author of "Dead Wrong" and "Death Work") doesn't mention his name nor Martin "Marty" McClain's names in the book. For a vast variety of reasons he should have. One can only interpret Mello's non-inclusion of their names and histories because Mello is a Holdman cheerleader.

Nolas was and is an excellent litigator like Olive was and is. Nolas was the Chief Litigator for about the last two years of Gov. Martinez "regime", which was the most difficult time in CCR history (during my employment there) with Martinez signing death warrants as if he was at a Republican Party event signing autographs.

Nolas sadly resigned at the end of 1990, when Martinez had been defeated by former U.S. Senator Lawton Chiles and former U.S. House of Representatives member Buddy MacKay.

Nolas was completely drained from the years he endured and litigated while at CCR, both due to the hugh case load and due to the internecine warfare within the agency. McClain and his faction within CCR basically did their best to cause Nolas to leave -- eventually they were successful -- and THAT is when clients's cases began to suffer.

McClain can be an excellent litigator, however his strategic decisions in various cases is a different matter. When Mello writes on page 245 of the hardcover version regarding CCR, "Look beneath the surface of CCR's 'success rates', however, and you'll find an artifice typical of hack public defender officers. CCR has in the past farmed out the hardest cases to outside lawyers (by finding that it has a 'conflict of interest')"

As the penultimate example of McClain alleging a "conflict of interest" [and I can only assume with the director of CCR at the time, Michael Minerva, consent] is the client Jerry Layne Rogers, Sr. -- a clearly wrongfully convicted innocent man -- in Mr. Rogers's case there were 80 boxes of documents, from court files, prosecutor and law enforcement files, trial and evidentiary hearing transcripts, etc. Mr. Rogers's case was the largest and most complicated that CCR has ever represented. The second largest and most complicated was that of Mr. Gerald Stano, whose lead attorney during most of the development of his case was Olive.

McClain simply didn't want to have such a complicated case as a CCR case, so McClain, in my considered insider opinion as Mr. Roger's only investigator from 1989 until my involuntary departure in 1992, alleged in a misrepresentation to the Florida Supreme Court (FSC) that he had a "conflict of interest" with Mr. Rogers -- while Mr. Rogers's case was pending at the FSC.

As a result, Mr. Rogers had no counsel for an extended period of time until the Washington, D.C. law firm Covington and Burling became his pro bono counsel in 1995. The result was an unanimous FSC 26 page opinion ordering a new trial in Mr. Rogers's case due primarily to prosecutorial misconduct, in particular Brady v. Maryland violations.

To read the opinion, go to www.flcourts.org, then to Opinions, then to the year 2001, then toward the bottom on February 15, 2001, one will find the FSC opinion.

Two other cases in particular McClain's strategic decisions may very well cost the clients their lives: Peter Ventura and Roy Swafford. More on these two cases another time, except to note that in both cases the FSC decided 4 - 3 against Mr. Ventura and Mr. Swafford in their most recent FSC cases.

Rating:
Summary: Introduction to the Florida history and more Florida history
Review: First an introduction: From 1986 - 1992 I was employed as an investigator at the Office of Capital Collateral Representative (CCR) in Tallahassee, Florida, where Scharlette Holdman worked as the supervisor of the investigators from October 1985 - March 1988.

I have known Scharlette since the mid-1970s death penalty debates at Florida State University, including the debate between Professor Richard L. Rubenstein (author of "After Auschwitz", "My Brother Paul", "The Cunning of History: Mass Death and the American Future", "The Age of Triage", "Religion and Eros", and other books) vs. Baptist Minister and Philosopher Will Campbell (the debate was circa 1977).

Her office, the Clearinghouse on Criminal Justice, was in the same wing of the Petroleum Building as my office at Common Cause in Florida (where I was a full-time volunteer during the day and worked at the Brown Derby Restaurant at night from 1981 - 1986).

The Petroluem Building was next to the State Capital, the Florida Supreme Court and the State Archives and Library. When it was torn down, the space and the space for the first CCR office became the Mary Brogan Art and Science Museum and a storm water retaining pond. The Petroleum Building was called by those of us who worked or volunteered there the "Forces of Good" (FOG) Building -- as opposed to FOE -- Forces of Evil, such as Associated Industries, the Chamber and other big business interests in Florida. The FOG building also included (not an exhaustive list) the Clean Water Action Project, the ACLU, NOW, Florida Legal Services, Migrant Farmworker's Organization (directed by Cliff Thaell, who has more recently been a Leon County Commissioner for about ten years or more), Mike Vasilinda's television news service.

About every two years at CCR there was a Marxist-Leninist-Stalinist-Maoist purge due to the pressures and dysfunctions of the work and the people. I survived two such purges. With the third, I was the first to go in the spring and summer of 1992.

When Scharlette had essentially declared war upon CCR in 1987 and thereafter, some of us decided to investigate her background given some things that we had heard. Low and behold, Scharlette's claim of a PhD in anthropology from the University of Hawaii and a Master's Degree from (if my memory serves me correctly) the University of Birmingham don't exist.

We used Scharlette's Social Security number, her maiden name and her married name -- with all this information, both universities had no record of Scharlette having received any degrees from these institutions.

As I understand Scharlette, she needed the "degrees" to confer upon her "credentials" that she really never needed as she is indeed then and now a national expert on capital mitigation, litigation, etc. However Scharlette can be deceptive, as her lack of a PhD and Masters so demonstrates. Even today she claims to have the degrees as when she gives presentations regarding capital cases, she is identified as "Dr." A key word search of her name will bring up some of the presentations that she has made in the past several years with the title "Dr." preceding her name.

If she has received any honorary or other degrees since 1990, that would be new information for me. If anyone can assist in this matter, please contact me at [e-mail] or my mailing address: P.O. Box 38458, Tallahassee, FL 32315-8458. Thank you.

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Summary: RE: Florida cases: Roy Swafford and Peter Ventura:
Review: For those interested in reading the four to three vote Florida Supreme Court opinions regarding two more death sentenced persons whose innocence is an authentic issue, please go to www.flcourts.org, then go to "Opinions and Rules", then chose the correct year and scroll down to the following two cases:

Roy Swafford: April 18, 2002 Case No. 92.173

Peter Ventura: May 24, 2001 Case No. 93.839

These two cases are findable under "Court Orders: Case Disposition Orders" and "Briefs in Other Cases" sections of the "Press Page":

Roy Swafford: March 26, 2004 Case Nos. 03.931 and 03.1153

Rating:
Summary: A balanced, and well-researched overview of the subject
Review: Having read a number of books on the subject, I would have to say that this book is about the best, providing an excellent overview of capital punishment in America. Containing recent data as well as historical accounts, the author paints a vivid picture of how capital punishment has evolved over the past three hundred years in this country.

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Summary: A Superb, Even-handed History of Capital Punishment
Review: It's a testament to the balance found in Stuart Banner's history of the death penalty in the U.S. that I'm still unsure where he stands on the controversial issue. If I had to take a position, I would say that he's probably against it, but even after reading his three-hundred page book I can't be sure. That's a remarkable feat for a subject matter that immediately unbalances many people.

But "The Death Penalty: An American History" has other virtues. The book is scholarly, yet still an easy read for any interested layman; it is comprehensive, but doesn't get bogged down in details. Banner begins with capital punishment as practiced in colonial America and ends with public attitudes and constitutional issues in the late twentieth century. While the book basically follows a straightforward chronology, its chapters are arranged thematically.

Some of the most interesting parts of the book are in the beginning. How Banner describes public opinion toward the death penalty in the seventeenth and eighteenth centuries, the way executioners then -- who often were killing a man for the first and only time in their lives -- handled their duties, and the relationship between the public who viewed the execution and the condemned man, were all very fascinating to me.

But no part of this history is boring. Banner does a remarkable job of sustaining interest even when the book turns to modern times, where the history of the death penalty focuses more on legal and abstruse matters. Banner always clarifies the issues at hand, explaining clearly and objectively the importance of what he is writing about. I cannot recommend this book too highly. If you have any interest in the death penalty, read it.

Rating:
Summary: Well balanced and interesting
Review: Most books that are written about the death penalty tend to be partisan either filled with impassioned criticisms or passionate defences. This book is unusual as it is measured and objective.

It is not a long book but it looks at a surprisingly large number of issues not only about the penalty itself but the ritual around it, the means used and a detailed explanation of the constitutional argument that led to its abolition and its resurrection...

In describing the way the death penalty is administered the one interesting point made by the author is the discrepancy in its implementation. Almost all of the death penalty cases occur in the Southern States. There appear to be a number of reasons for this one being the fact that these states have the highest rates of murder, the only crime which realistically now attracts the penalty. The author however makes the point that another key factor in the geographic distribution of the death penalty is the way that defendants are represented. In the North the state funds public defenders officers which provide a high standard of legal representation. This means that during the penalty phase of the trial care is undertaken to call evidence that will lead to imprisonment rather than execution. In the South the system of providing legal assistance is for the state to pay private lawyers to undertake death penalty cases. The fees are stingey and as a result defence lawyers are often have no experience or skill in running such cases. Mitigatory evidence is seldom called and the usual methods of arguing for a lesser penalty are not used. Capital cases in the South are littered with tales of incredibly incompetent defence lawyers.

The writer appears to be a legal academic and the most interesting part of the book is the explanation of the constitutional arguments over the legality of the penalty. The explanation of the arguments over how it was argued that the penalty was cruel and unusual and the legislative changes which were used to overcome these arguments is excellent and makes a complex area easy to grasp.

All in all an interesting book for those who wish to read about the subject.

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Summary: A History of Popular Sentiment About the Death Penalty
Review: Prof. Banner draws on legal sources, the text of sermons and newspaper accounts to examine the evolution of popular sentiment about the death penalty over the past four centuries. I found the book enlightening on several different levels.

First, changes in popular views about the rightness of the death penalty.

Second, the co-evolution of popular feeling of what is "right" and the law itself. This gave me something to think about relative to the old debate about the law as a living thing vs. "strict constructionism" that the law (that is the basic law (constitution) and basic principles) are what we think the founding fathers meant when they wrote it.

Third, an interesting sidelight was the discussion of the emergence of long-term imprisonment as an alternative to the death penalty in the early 19th century.

Finally, the discussion of the meaning behind the gradual change from public executions to executions witnessed only by a few -- a reflection of general discomfort about the death penalty was another interesting line of evidence that I had never considered before reading this book.

Rating:
Summary: Balanced look at a controversial subject
Review: Stuart Banner has taken on one of the more politically volatile subjects in American history and come up with a well-written book that explores the death penalty's development in this country and the related controversies.

In the colonial era there were no prisons, so execution - primarily by hanging - was the only option for a myriad of crimes: not just murder, but arson, rape, burglary and in some cases, acts like blasphemy. The hangings were public events that were widely attended by men, women and children. As prison provided an alternative punishment, execution began to be used only for the most serious crimes, and eventually began to be done in a more private forum and by newer, more "humane" methods.

Banner covers all these issues well and with such an objective approach it is difficult to even see what side of the issue he is on. That's what helps make this book so great: with Banner's balanced approach, you never get the feeling he is pushing either a pro- or anti-death penalty agenda.

Balance by itself would not be enough, but Banner also is a good writer and this book is a fascinating read. Whether you are for the death penalty or against it, you should read this book. It probably won't change your mind, but it will give you much more insight as to why we use the death penalty like we do.

Rating:
Summary: As Objective as possible
Review: The recent actions by former Illinois Governor Ryan have raised many questions about capital punishment in the United States. I have read or heard several commentaries that have suggested the new focus on the death penalty may lead to its abolition. As an opponent of capital punishment, I hope this is true. But I doubt it.

A reader of Stuart Banner's "The Death Penalty: An American History" will realize very little new can be added to the debate. Banner provides an extensively detailed account of all aspects of the death penalty throughout the past 350 years. From colonial times through the execution of Timothy McVeigh, this book looks at the logistics, politics, and theology of capital punishment. The author comes as close to complete objectivity in presenting the history as possible. Banner is fair in showing the strengths and weaknesses in arguments for and against capital punishment. And he provides fascinating information concerning the debates that surrounded periodic changes in how the death penalty was administered. Throughout history there have been many debates: the merits of hanging versus electrocution; the arguments for and against public execution; the role of penitence (thus the name penitentiary) in punishment.

I found that this history of one issue was very much a microcosm of the broader history of the United States. For instance, I was not familiar with the legal term petit treason. This describes the concept of treason-an offense against someone to whom absolute loyalty is owed-in private life. Those convicted of petit treason were subject the "more severe" punishment of death by burning. In 17th and 18th century America two classes were capable of being convicted of petit treason. The classes were slaves "convicted of murdering their owners or of plotting a revolt" and women "convicted of killing their husbands." (p. 71)

Class played a pivotal role in the move from public hangings to jail yard executions. Banner describes how elites in the 19th century became appalled at public hangings because the large crowds were rowdy and displayed lower class sensibilities. Simply put, those in power were not opposed to hanging-they were opposed to being in the presence of the working class when the restraints of the workplace were removed.

Class, race, and gender divisions are evident in almost every area of this controversial issue. And no great American controversy would be complete with religious implications. In fact, no less a public preacher than Cotton Mather worried in the 17th century that he could rise to the occasion of giving the sermon to the crowd of thousands that attended executions. As the author notes about public hangings: "An execution could be a splendid occasion for reinforcing religious authority." To this day, capital punishment attracts those in authority to make religious arguments both in opposition and support of the death penalty.

As stated earlier, this book is not a polemic. It is an accurate history of one of our most contentious issues. As is the case with history, I am sure both those if favor of capital punishments and abolitionists can find many facts to support their beliefs. It is also true that a better understanding of history must allow all involved to reconsider some beliefs. "The Death Penalty: An American History" should be read by every legislator who will vote on state-sanctioned killing.