Victims Again: Survivors Suffer Through Capital Appeals

Victims Again: Survivors Suffer Through Capital AppealsAuthor(s): TOM GIBBONSSource: ABA Journal, Vol. 74, No. 9 (SEPTEMBER 1, 1988), pp. 64-68Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760104 .

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DEATH PENALTY

Victims Again

Survivors Suffer

Through Capital Appeals

BY TOM GIBBONS

It has been nearly nine years since Dr. James Goldstone sat through the murder trial of the thug who

abducted his wife from a hospital parking lot in Chicago, locked her in a car trunk for 36 hours, repeatedly raped and beat her and finally ended the terrorized woman's ordeal by shooting her as she screamed for

mercy. The killer, Hernando Williams,

has never denied murdering Linda Goldstone, a 29-year-old mother, whose son was 3 years old when she was killed. Williams has called him self "a monster" with a split person ality, and gave police a 32-page confession only hours after being ar rested. He confessed again when he pleaded guilty in October 1979 to the brutal slaying, and was sentenced to death.

But Williams has avoided his date with the executioner time and time again.

Tom Gibbons is a reporter for the Chicago Sun-Times.

While the 34-year-old convict sits on death row, his lawyers have vig orously filed appeal after appeal challenging their client's death sen tence. A final ruling on whether his sentence will be carried out will be delayed for several more years.

"Enough is enough," says Gold stone, an obstetrician who has since remarried and tried to rebuild his life.

"I know you want to be careful not to execute an innocent man, but there's no doubt here," he says. "This is just an example of a ridiculous bu reaucracy" that prolongs the suffer ing of the victim's family.

Goldstone said the endless ap peals have made it especially hard for his dead wife's parents to put the hor ror behind them.

"Every time they hear about an other appeal, another delay, it throws them into a grave depression," he said. "I think it happens to all of us.

We're all thrown back to square one." But James Goldstone is not alone. The failure of the justice system

to control the duration of capital lit igation is a complaint heard repeat edly from frustrated family members

64 ABA JOURNAL / SEPTEMBER 1, 1988



Roberta Roper with a portrait of her daughter, Stephanie.

ABAj/iiSA berg ABA JOURNAL / SEPTEMBER 1, 1988 65



of crime victims. The plight of the

family of Linda Goldstone is typical of the problems faced by relatives of crime victims.

More often than not, says Rob erta Roper, victims' families become victims themselves of the crime and of the judicial system, "it never seems to be over for the family," she says.

Roper is the director of the Ste phanie Roper Committee and Foun dation in Maryland, a victims' rights group she co-founded with her hus band in 1982 after their daughter was

brutally raped and murdered. Scott Beard, spokesman for the

Washington, D.C-based National Or ganization for Victim Assistance, put it succinctly: "Families of murdered victims are forced to serve a life sen tence without parole."

Take the publicized case of Wil lie Jasper Darden, 54, who was exe cuted in Florida in March for the 1973 killing of a Lakeland furniture store owner. His case had become a symbol to many of the frustrating lack of fi nality in death-penalty litigation.

Darden, who was arrested the day after murdering James Turman while robbing Turman's wife of $15, challenged his conviction for nearly 15 years. His case was reviewed by at least 95 state and federal judges and

was before the U.S. Supreme Court on five separate occasions, Darden won six stays of execution, delaying execution of his sentence longer than any of the other 1,982 inmates on the nation's death row.

"What happened in the Willie Darden case shows how ludicrous our system has become," says Florida Deputy Attorney General Jim York, who represented the government in the Darden case. York has also been fighting appeals by serial sex killer Ted Bundy, who has been on death row since 1979.

"Mrs. Turman not only has to live with the image of her husband's murder for the rest of her life, she was also forced to see Willie Darden parading himself on television and in the newspapers for 14 years," he says.

"No one is suggesting the elimi nation of the constitutional protec tions afforded capital defendants, but there is a crying, desperate need," says York, to streamline the appeal process on both the state and federal levels so that capital cases don't lin ger in the system for a decade or more,

The ABA position The long duration of appeals in capital litigation causes distress for the families of murder victims. However, the ability of inmates to have their claims reviewed through habeas corpus writs has exposed flaws in their trials, critical enough to overturn convictions and modify sentences.

ABA policies and resolutions recognize the need for competent representation and complete review of constitutional claims in capital cases. The ABA opposes in principle capital punishment for persons convicted of crimes committed while minors. In addition, the ABA recommends that courts should appoint two attorneys as trial counsel in death penalty cases, and that the primary attorney must have substantial trial experience.

The ABA's Post-conviction Death Penalty Representation Project provides free representation for indigent prisoners on death row. Chaired by lawyer SaraAnn Determan of

Washington, D.C., the project goals are to educate the public about the lack of representation for indigent prisoners, to increase the number of volunteer lawyers and to create state-level resource centers for unrepresented inmates.

"Due process does not come cheaply and it does not come quickly," Determan said. "Any system which sacrifices the rights of persons who may be put to death at the altar of speed for speed's sake is not a system of justice."

thwarting legitimate judgments of state courts.

Prosecutors like York object to a system in which convicted murder ers, in their struggle to beat the sen tence, rely on questionable delaying tactics and a slow-moving judiciary that routinely sends capital cases back down the appellate ladder and allows defense attorneys to keep rais ing new and often duplicative legal issues.

What's left in the wake of these cases are clogged courts, a disproportionate

amount of resources?in both money and manpower?spent on a handful of cases, and inmates left in legal limbo for years while a kind of "super due process" plays itself out.

Jonathan Gradess, executive di rector of the New York State Defend ers Association, explained in an essay

appearing in the Washington Post earlier this year why capital cases can cost 10 times more than non-capital ones?an estimated $5 million per case.

"The investigation is more ex pensive, the number of pretrial pro ceedings is substantially increased and the jury selection takes longer," he says. "After conviction, a separate

penalty phase is conducted to deter mine the sentence. Because manda

tory death sentences have been ruled unconstitutional, the sentencing jury must consider a defendant's individ ual characteristics. Preparation for this phase is extensive; in essence, it is a trial for life."

After sentencing, Gradess says, all convicted murderers have the right to initiate judicial review at 11 different levels. And all the while, year after year, the prisoner is held in a costly, high-security cell.

"Some people think of it as a lack of finality, others refer to it as tech nicalities, and there are those of us who call it the Constitution," says Henry Schwarzschild, director of the American Civil Liberties Union's Capital Punishment Project.

It's not right, Schwarzschild says, to blame defense lawyers and their clients for the the slow pace built into the capital-appeals process. Counsel in these cases are often ineffective because of the complex nature of the litigation, and new issues are often found later in the appeal process, prompting courts to overturn convic tions or death sentences. And he says, judges are extraordinarily diligent in these cases because the stakes are so

high. "When the penalty is death," said

Justice Robert Jackson, "we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully con demned man another chance." Stein v. New York, 346 U.S. 156 (1953).

The Darden case also illustrates another benefit of a slow-motion sys tem: more time to consider possible injustices, and to correct them. In a

speedier system, Darden would have been executed before two alibi wit nesses came forward 15 years after the crime. The new evidence prof fered by these witnesses led the U.S. Supreme Court in January to grant Darden his latest stay, 10 days before he was to be electrocuted.




Susan

Asquith with a photo of

her mother.

But the glacial pace of capital ap peals exacts a high price from families of victims trying to put

the horror of the crime behind them. Studies have shown that the af

tershock of a violent crime can de stroy both individuals and their families. Crime victims and their families have found themselves faced with divorce, severe bouts of depres sion, alcoholism, drug addiction, and stress-related illnesses such as ulcers, nervous breakdowns and heart at tacks. Suicide, especially among younger siblings of murder victims, is not uncommon.

"We find people who just can't function anymore. They turn their anger inward," says Nancy Ruhe, ex ecutive director of Parents of Mur dered Children and Other Survivors of Homicide Victims, a victims' rights group formed in 1978 in Cincinnati, Ohio.

She notes that many members of her own organization, which now has 63 chapters in 49 states, are not very healthy people. "They can't get over the haunting feelings. They won't let go," she adds.

Ruhe says the public might think it's only the crime victim who suf fers, but that is simply not true.

"For any one person murdered there are at least 10 people who are affected," said Ruhe. "You get this tumbleweed effect that touches the lives of many people."

Susan S. Asquith, a 28-year-old housewife, says she has never been the same since her mother was beaten, raped and murdered in the basement of her Buffalo, N.Y., home over the Labor Day weekend in 1986.

The killer has never been caught. "I have nightmares. I can't sleep.

I have depression. I am afraid of everything. I'm afraid to be home alone at night with my two chil dren," says Asquith, who now lec tures on the impact violent crimes have on victims and their families.

Asquith relates that it's almost a

daily fight to gain control over her life, a fight that has put a strain on her marriage and has "driven some people away from me."

"I've learned that I lost my abil ity to make small talk," she says. "I'm so focused on my mother's death that it's hard to relax with people."

She says other family members of murdered victims have expressed similar concerns. "They tell me that all they want to do is talk about their loved one and what happened. It

makes it very hard to make new friends and to keep old friends," she adds.

Brian E. Forst and Jolene C. Her non, who compiled "The Criminal Justice Response to Victim Harm" for the National Institute of Justice in 1985, found that victims are most likely to be satisfied with the crimi nal justice system "when they know the outcome of the case, when they perceive that they influenced the outcome."

That's not to say victims of crimes and their families have not

had a number of victories in recent years.

An estimated 1,500 pieces of new legislation aimed at assisting crime victims have been passed by state and federal legislators since the Presi dent's Task Force on Victims issued its report in 1982.

About 31 states now have crime victim bills of rights; 39 states allow victim-impact statements; 34 states, as well as the federal government, have crime-victim restitution laws, and most states have laws requiring that victims be notified of critical court proceedings either before or after they occur.

But crime victims believe they are still facing an uphill fight, despite some significant gains. They argue that victims are still viewed by many as being more concerned with vigi lante "street justice" than with the fair administration of justice. And beyond the victim's intent, concerns have been raised that greater victim participation may interfere with a defendant's fair trial guarantee by in flaming judicial proceedings with un due emotionalism.

"It's not fair. No one has the right to keep us locked out of the judicial process," says Roberta Roper.

"We don't have trouble discuss ing due process rights of a defendant, but as soon as victims talk about rights and services we are suddenly

ABAJ/WIDE WORLD

ABA JOURNAL / SEPTEMBER 1, 1988 67



called a lynch mob," she adds. And the frustration created by

such a system is perhaps most felt by the families of murdered victims.

Roper argues that these families are not only forced to cope with the violent death of a family member, they must also deal with a judicial system that treats them like a piece of evidence.

"We're told to show up for court, testify and then we're disregarded until they need us again. It's very cal lous," she says.

The need for victims and their families to be involved is sup ported by researchers in a na

tional study of victim harm. Scott Beard, of the National Or

ganization for Victim Assistance, says the proliferation of victim assistance programs?about 5,000 nation wide?is slowly making it easier for victims and their families.

"We're nowhere near 100 per

cent, but things are getting better," he argues. "You're looking at a much greater awareness by the system."

He points to a variety of actions aimed at helping victims. Many states require that victims or their families be informed about the status of a case; restitution is much more common place; there's a greater effort to pro tect the privacy of victims, and several states allow victims to remain in the courtroom after they have tes tified rather than excluding them from the trial of their accused assail ant. Alabama even allows victims to sit at the prosecutor's table at trial.

The American Bar Association's House of Delegates in 1986 also ap proved a 23-point guideline devel oped by the Criminal Justice Section to reduce the adverse effects of case continuances on victims.

The guidelines include recom mendations to prosecutors that they not require victims and witnesses to attend criminal proceedings unless their testimony is essential, and when continuances are granted that vic tims be notified promptly so they are not unduly inconvenienced.

Still, there have also been set backs for victims.

Last summer, for instance, the U.S. Supreme Court curtailed the use of victim-impact statements when sentencing an offender. Booth v.

Maryland, 107 S.Ct. 2529 (1987).


'These peeple have had their

day in ceurt and their

cases shouldn't be relitigated ever and over

again.'

In Booth, the Court voted 5-4 that judges and juries may not consider testimony from a victim's relatives in deciding whether to condemn a con victed killer. John Booth was sen tenced to death for the 1983 stabbing

murders of Irvin Bronstein, 78, and his wife Rose, 75, during a burglary in their West Baltimore home.

Under Maryland law, which was similar to the laws in 38 other states, victim-impact statements could be made in writing or in person during the separate sentencing stage of cap ital trials. Writing for the Court, then Justice Powell said testimony by a victim's relatives in capital cases is "irrelevant" and "could divert the ju ry's attention away from the defen dant's background and record, and the circumstances of the crime."

He added that death sentences should not depend on how articulate or persuasive a victim's family mem ber may be in emotion-charged tes timony, noting that letting judges or juries consider it risks imposing the death penalty in "an arbitrary and capricious manner."

Roberta Roper of the Stephanie Roper Committee and Foundation, which played a part in helping to draft the Maryland law, said the Su preme Court ruling hurt victims' ef forts, but she stressed it was a narrow ruling only applying to capital cases.

"To date, we have passed 14 pieces of legislation in Maryland to

help ensure that crime victims have the same rights as the accused," she said. 'There will be setbacks, but we will not go away."

Utah's Chief Assistant Attorney General Earl F. Dorius, who repre sented the state in the Gary Gilmore case, said he's glad to see victims playing a greater part in the criminal justice system, especially those who have to endure the murder of a rela tive and then watch a case drag through the courts for a decade or

more.

"No one is trying to deny a de fendant due process, especially when the government is seeking to take that person's life," he says. "But some

thing wrong has happened to our criminal justice system since the 1950s," when executions were car

ried out a few years after sentencing. "These people have had their day

in court and their cases shouldn't be relitigated over and over again."

Dorius gives the example of the endless legal maze in the "Ogden hi fi shop murders," among the most gruesome ever committed in Utah.

In that case, William Andrews and Pierre "Dale" Selby were con victed of committing a triple homi cide in April 1974 in a stereo shop in the small town of Ogden. The pair went into the store to commit a rob bery, and before they left four hours later had poured liquid drain cleaner down the throats of five victims, raped a sales girl and shot the hos tages in the head at point-blank range.

Three of the victims died from their wounds; a fourth suffered se vere brain damage. The fifth re covered from his physical injuries, although he has to live with the memory of his daughter being shot before his eyes.

Selby was executed on Aug. 28, 1987, the only prisoner to be exe cuted in Utah since Gilmore. An drews, after 14 years on death row, is still appealing.

"What has happened," says Dor ius, "is that there is a moratorium

mentality. There is a presumption in favor of stalling. The public is being denied their due process.

"The most gratifying thing for me at the end of the Selby ordeal was to talk to the survivors of the crime and tell them that their long night

mare was over."



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Victims Again: Survivors Suffer Through Capital Appeals