Reprieve Film Night - 23 November

It is five years since Australian man Van Nguyen was put to death.  Please join us for a special screening of a film about Van, 'Just Punishment', followed by a Q & A with producer Shannon Owen. 

Venue: Loop Bar, 23 Meyers Place, Melbourne (near the corner of Bourke and Spring Streets)

Date: Tuesday 23 November, 6:30pm (for a 7:00pm screening)

RSVP: To John at john.riordan@reprieve.org.au by Friday 19 November 2010

Admission is free but voluntary donations will be very much appreciated. Spaces are limited so get in early.

www.reprieve.org.au

Reprieve Talk - Tuesday, 3 August

Mallesons is hosting a Reprieve panel discussion next week on the death penalty.

Here are the details:

3 lawyers discuss how their encounters with capital punishment influenced their careers and perspectives on the law

Julian McMahon is a Melbourne based barrister who has acted in a number of death penalty cases in the Asia Pacific region including acting for Van Nguyen and the Bali Nine.

Mark Gibson is a Melbourne based barrister who has experience acting for both the defence and the Crown. Mark has worked with indigent defendants facing the death penalty in the US and has represented defendants with the Aboriginal Legal Service in Darwin.

Lucy Adams is a lawyer at PILCH who has previously worked at Clayton Utz and as a volunteer representing those facing execution in Louisiana.

DETAILS:
Tuesday 3 August
5.45 for 6:00

Mallesons Stephen Jaques
Level 50, 600 Bourke Street
(Cnr Bourke & King)
Melbourne

www.reprieve.org.au

Refreshments to be served afterwards
RSVP by Thurs 29 July (for catering purposes) rsvp@reprieve.org.au

Martyrs of a higher truth

 "Van Nguyen's light not extinguished by death" - The Age

A well written article about the impact of two close friends of Van Nguyen. It's coming on to 5 years since Van Nguyen was executed in Singapore on 2 December 2005. I've written about the impact of the death penalty on those who are effected by it personally, and a lot of my feelings on the subject come from talking with these two women. In this article they bravely articulate the extent to which they have been permanently scarred by the horrific experience of having a friend executed, but at the same time the unshakable goodness with which he was imbued before his death.

Re-reading my first essay on the death penalty, which I interviewed Bronwyn for, I compared Van to Albert Camus' "tragic hero" from The Outsider, Meursault. Bronwyn had spoken of the bravery with which he faced his execution and the forgiveness and love that he bore for everyone, especially his murderers.

This almost Christ-like forgiveness is challenging to comprehend but certainly suggests that perhaps not all that arises from capital punishment is anger, hatred and weakness. Indeed, Camus would seem correct in suggesting that those who die beneath our revenge and conceit, like Meursault and Van, are martyrs of a higher truth, “a truth that is greater and superior to man”, and perhaps they are even the “only Christ we deserve”.

In hindsight, and it's a shame I didn't acknowledge this at the time, Meursault died with an existential disregard and apathy for this hypocritical human urge to kill, but also a complete and vitriolic rejection of any religion. Camus recognised this most basic contempt for humanity as an affirmation of the absurdity of capital punishment. I don't think the fact Van and Meursault are completely different in this respect negates my original comparison. Meursault almost demonstrates a sort of forgiveness borne of indifference whereas Van's is born of compassion. Regardless of the source, this forgiveness stands in stark contrast to an execution, an action that is "unrelenting and deliberate" and completely devoid of any understanding and compassion.


Quote of the day:

"But [now] his heart wasn't beating, he wasn't breathing, he felt so cold. It just wasn't right ... and all the world's humanity was lessened because of it."

- Bronwyn Lew

Happy 20th Birthday for the 2nd Optional Protocol

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty is a side agreement to the International Covenant on Civil and Political Rights. The Optional Protocol commits its members to the abolition of the death penalty within their borders.

UN High Commissioner for Human Rights Navi Pillay said in a statement that she "would like to take this opportunity to congratulate all those States that have abolished the death penalty...While the death penalty remains legal under international law in limited circumstances, there is, as the Optional Protocol notes, a strong suggestion in international law that the total abolition of the death penalty is desirable...I urge those States still employing the death penalty to place a formal moratorium on its use, with the aim of ultimately ratifying the Optional Protocol and abolishing the punishment altogether everywhere."

Quote of the day:

These bloody days have broken my heart.
My lust, my youth did them depart,
And blind desire of estate.
Who hastes to climb seeks to revert.
Of truth, circa Regna tonat. (It thunders through the realms)

- Thomas Wyatt (After witnessing the execution of Anne Boleyn in the Tower of London)

In The News - October

It's been a wild few months on death row. You've got both sides of the debate chewing heads over the Todd Willingham case (see earlier blog entry), Texas Governor Rick Perry desperately trying to avoid the fallout, Dr. Craig Beyler report receiving a withering amount of praise and criticism,  Judge Sharon (Killer) Keller under professional review (see below) and Japan's death row is under serious scrutiny. At home in Australia, there is an anti-death penalty rally in Melbourne, Herald Sun readers call for death penalty to return to Victoria and, finally, a man who escaped the gallows forty years ago when Victoria abolished the death penalty has murdered again.

Willingham - Executed & Innocent?

There's been an interesting twist in the Willingham case as both sides of the debate become even more entrenched. The new chairman who was appointed by Gov. Perry has indefinitely postponed the review of Dr. Beyler's report on the fire forensics used at trial. It seems that the new chairman, John Bradley, a close colleague of Perry and a prominent conservative has been assigned to either shut down the review or make a finding that is favourable to the Governor. Bradley's words, as pointed out in the blog entry, even wreek of foul intention, "It is my experience that leadership is best applied to moving forward rather than looking back". Does this imply that he is planning to ignore the Willingham case and look only to the future of reforming archaic fire science? It's hard to say for sure but if this review doesn't take place before Gubernatorial election coming up next year in Texas then I think it speaks for itself.

It's tragic that a claim of innocence has been boiled down to pure politics. It reflects terribly on the death penalty in Texas and has done tremendous damage to public confidence. Perry has come out of this little foray looking like a dissembling weasel.

It's also worth mentioning that there has been alot of criticism of Beyler. The fact that he used Willingham's statements to police even though his statement was contradicted by the findings after the fire. There's certainly alot of misinformation flying about from both sides. There are Willingham sympathisers who claim that Beyler's report rejects arson as the cause of the fire. However, the report wasn't able to categorically count out that it was arson, however it was unable to prove that it was arson. As far as a legal standard goes, this is enough to create reasonable doubt.

On appeal after conviction it's not necessary to prove innocence beyond reasonable doubt, merely to show that a reasonable jury, properly instructed, considering the new evidence could not find the defendant guilty beyond reasonable doubt.

Is it possible to find a man guilty of arson without having ironclad proof that the fire was deliberately lit? Perhaps with exceptionally pursuasive circumstantial evidence. In this case, however, all we are looking at is evidence of inconsistent statements by Willingham, witness statements that claim he was acting strangely outside the fire (many of which were later recanted) and a psychologists report that claims he is a sociopath because he listens to Iron Maiden, has their posters on his wall and has violent tattoos.

Satisfactory? Not on your life.

What's going to happen next? It's impossible to say but I'll be sure to update as soon as there has been any kind of developments.

Japan Death Row in Tatters

After Amnesty International released a report stating that death row inmates in Japan were languishing in isolated and inhumane conditions and that they had were suffering from terrible psychological illness due to the stress of their present conditions and the uncertainty of their future. The report also condemned the secrecy surrounding the system which executed 15 inmates last year, the highest in three decades. The report coincided with the appointment of a new justice minister Keiko Chiba, an outspoken death penalty critic and member of the Parliamentary League for the Abolition of the Death Penalty. Without directly stating she would not sign death warrants, it seems quite clear that there will now be an effective halt to executions.

This, however, is no consolation to the 102 left lingering on death row with even more uncertainty as to their fate. Hopefully Chiba can put into action a process for the abolition of the death penalty but seeing as 80% of the population of Japan support it, this would be a hard fight. Perhaps simply removing the veil of secrecy from the system would open the eyes of many Japanese to the injustices that are occuring.

Melbourne Rally Against Death Penalty

On 10 October 2009, the seventh World Day Against the Death Penalty, Melbournians marched against the barbaric practice of state sanctioned killings all around the world. Speaking to the rally was Melbourne lawyer Julian McMahon who worked alongside Lex Lasry in support of Van Nguyen and who is the lawyer for Myuran Sukumaran and Andrew Chan, convicted drug traffickers who are on death row in bali. It's great to see Julian still campaigning so stalwartly fighting the good fight. Having assisted Julian on both Van and the Bali 9 cases I know how tirelessly he works and how committed he is to the cause.
I wish I could have been there for the march but I'll just have to wait for lucky number eight!

"Execution is premeditated, ritualised, state-sanctioned violence by brutalised societies. There is no crime no matter how terrible that could not be properly punished by decades in a cell."

Herald Sun Readers: Bring Back DP After Man Escapes Gallows and Murders Again

So the Herald Sun conducted a poll in early October asking whether or not Victoria should bring back the death penalty. To be honest, the issue is moot as the Australian government has an international obligation since ratifying the 2nd Optional Protocol to not only seek the abolition of the death penalty worldwide, but to put in place laws that will block the death penalty from every returning, no matter what government is in power.

The result was no surprise. Almost 80% supported the death penalty being reintroduced, and this can be explained by the context in which the poll was taken.

In 1968 Leigh Robinson was sentenced to death by hanging in Victoria for the stabbing murder of his ex-girlfriend, Valerie Dunn in her home in Chadstone. Upon the abolition of the death penalty in Victoria his sentence was commuted to the 20 year maximum that murder carries. He was then paroled and released only to murder again. Tracey Greenbury was his second victim and he has now been convicted of the crime and sentenced.

This guy is a real piece of work. During his cross examination he called the victim a "silly bitch" and said that he was just trying to help her up some steps when she slipped and his shotgun offloaded into her head accidently. Here's part of his testimony before the court:

"She started to fall and stumble and I went to grab her and all of a sudden, yeah, and that's why I'm standing here... One hell of a friggin' bang … [and I] packed me dacks and turned around and left."

I've said it before. I think that preventing recidivism is one of the most perverse reasons for supporting the death penalty. Killing someone for a perceived future crime they may or may not commit is not only foolishly misguided but also a complete rejection of the principles of the justice system, and that is reformation. Losing complete faith in the human spirit is the first step towards becoming incredibly cruel and unforgiving towards those in society who are most in need of serious help and understanding. We need to work out how the system failed both Robinson and Tracey Greenbury rather than wishing we had just killed him to begin with. As I have said before, this Stalinesque approach of "no man, no problem" is totally inhuman.

Forced Perspective

It's hard to see the big picture sometimes. For a long time this was just a building that, while at first totally alien, is now comfortingly familiar. In a quiet area in The Hague, nestled between the city centre and the beach, the ICTY is the home of so much more than meets the eye.

The trial of Radovan Karadzic towards which I have been working the past 4 months has finally started. The sense of a massive undertaking was palpable the moment that Judge Kwon asked Prosecutor Alan Tieger to start his opening statement. I have worked on many different elements of this case. Some things are shocking and confronting, for certain, but these occur in small, relatively out of context tasks. Perhaps I find myself working on organising evidence for trial and come across something incredibly graphic. It's easy to compartmentalise and disassociate yourself from what you're seeing. When Mr. Tieger started to summarise clearly and concisely the many different elements and facts of the case that had once been a jumbled mess of information in my head it suddenly became so clear. It's almost like I had the knowledge of the case by not the understanding to put the many pieces together. He told the story of Radovan Karadzic as I knew it but had never heard it. Parts of the story seemed so familiar but I had never put them into context. Yes, Sarajevo was shelled and sniped for 44 months, Srebrenica was taken over and thousands were executed, hundreds of thousands of people were displaced and thousands killed during the process. Karadzic stood astride all of these atrocities as the Supreme Commander of the Bosnian Serb forces.

Was this destruction and death just a product of war? No, it was the purpose of the war.

"[He] harnessed the forces of nationalism, hatred and fear to implement his vision of an ethnically separated Bosnia."

It was an amazing opening statement, and it's not over yet (there is still one more day to go). But this isn't what really opened my eyes. This made the facts of the case more clear. Something else made this new clarity that much more real. I suppose months of working on esoteric elements of trial preparation can very quickly skew your perspective of exactly what you are working towards. Yesterday things were very clearly brought into focus.

It's not so much the fact that the building was surrounded by media. It's not the fact that it appears on every major news syndicate. All of these things are relatively straight forward and to be expected. This is a massive trial that spans over years of violent history in Europe, specifically the Balkans. No, it's the presence of the victims.

The ICTY is unique international court in the sense that it is completely divorced from its context. The crimes were committed in the battle torn Balkans, yet the trial takes place in the placid city of the Hague. Compare this to the ICTR or the SCSL, both which exist, for the most part, in the places where these crimes occured. The purpose behind this are clear. Where the crimes occured is also where you will find the people who were affected. It's important for victims to feel that they are represented, especially if any kind of post war reconciliation is to be achieved. If you leave work from the ICTR in Arusha, Tanzania you are surrounded by people who fled Rwanda during the genocide. Everyday you would be mingling in with communities that have been destroyed by the civil war.

The viewing gallery was completely filled up by media and diplomats from various countries. This meant that every employee watched the beginning of the trial streaming live on their computers. Some people even brought their friends into the office to watch it as well. Everyone, no matter what case they were on, was watching Courtroom 1 and the opening statement against Radovan Karadzic. But the difference that I felt most keenly was that of the Srebrenica wives and daughters. They filed through the corridor and in to the conference room just outside my office. There, just like the rest of us, they watched the trial start. To me it was a moment where all the facts came together in a neat package, for victims it was so much more than that, it was a truth that has tortured them for 14 years. And there they all sat, more than 50, all seated in one large room watching the proceedings that had such an incredible personal significance to them. Wives and daughters who had, in some cases, lost most of the men in their family and had been forced to raise the decimated families in an unforgiving warzone. Solemn respect doesn't even begin to qualify the feelings that come from encountering people who have suffered through so much. The few times I would pass them in the hallway was strange at first. They knew everything about this conflict from intimate personal experience but so little about what goes on at the tribunal. To me I know nothing about what these people really went though during the war, but I know exactly how this tribunal operates from day to day. As some of them filed passed our office on their way out of the building, after watching the opening statement, they would peek their heads into the office and with a gentle smile and say thankyou.

Everyone at this tribunal is here to do justice for the people of the former Yugoslavia, but sometimes you need to be reminded, especially when Bosnia feels so far away from the Hague. Sometimes you need to step back from the specific and finicky legal, administrative and procedural issues and realise that this story is a tragically real one for a huge amount of people. Sometimes certain things need to force your perspective towards the most important reason behind these trials, the victims.

Quote of the day:

"Power is the relation of a given person to other persons, in which the more this person expresses opinions, theories and justifications of the collective action the less is his participation in that action."

- War & Peace by Leo Tolstoy

Innocent and Executed

With every passing week it is becoming increasingly clear that an innocent man was executed in Texas on 17 Feb, 2004.

The New Yorker published an article in September (It's quite lengthy!) outlining the case in all its excruciating detail. To summarise it briefly, Todd Willingham was charged with the murder of his three children by deliberating setting fire to the family home on 23 Dec, 1991 . The case against him was a mix of witness testimony, psychological examinations and, of course, arson forensics. The witnesses stated that Willingham appeared calm outside the front of his house as it burned down and didn't seem to make any attempt to rescuse his children from the house. The psychologists stated that he was a man with violent tendencies and a disturbed mind due to his graphic tattoos and interest in explicit and violent music. However, the most damning of all the evidence was that of the forensic arsonist. What he explained is all very techinical, but suffice to say he found evidence that fuel had been poured around the childrens bedroom, essentially turning the room into a death trap, while making it easy for Willingham to escape.

He was found guilty and sentenced to die.

Even before Willingham was executed almost all of the witnesses recanted their testimony. Most of them stating that Willingham was indeed extremely distressed and had to be physically restrained by firemen to stop him from reentering the house. The psychologist was completely discredited and turned out to be a close friend of the prosecutor. But the most important element is the forensic evidence. A prominent fire expert reexamined the evidence brought against Willingham at trial and was shocked at just how archaic the methodology was. Dr. Craig Beyler prepared a report (found here). Dr. Beyler found that the methods were similar to that of a "mystic or psychic" and were completely without merit or understanding of fire analysis.

As if all the dysfunctional elements of the Texas justice system were coaelscing into one tragic event, Sharon "Killer" Keller (see below) was the judge presiding in Willingham's final Habeas appeal to the Texas Court of Appeal. She refused the compelling claims of innocence.

This is the kind of morbid holy grail that anti-death penalty supporters have been waiting for.

At the moment Governor Rick Perry has appointed a panel of experts to examine the fire and the scientific methodology used at trial. However there have been further scandals regarding Rick Perry's attempt to cover up the whole issue. Three members, including the chairman, were removed three days before they were meant to review the expert report that refutes the fire being arson. The officials have stated that they were met with representatives of Rick Perry's and were pressured and influenced. It's all very political and hard to pin down with any certainty, but one thing is for sure, and that's the fact that something is seriously out of whack.

Perhaps the saddest element of this entire case is that the truly callous and cruel amongst those who support the death penalty are coming out of the woodwork. It's as if, once sentenced to death, you must be proved innocent beyond reasonable doubt. This simply isn't the case and it is only necessary to present that there was clearly reasonable doubt and that no charge of arson could possibly be upheld. It seems that death penalty supporters are more frustrated than horrified with this present situation. They would rather innocent people weren't executed so that they didn't have to explain it away.

For me, the execution of an innocent man is an incredible tragedy and one that can never be rectified. However, the potential for innocent victims has never played an important role in my opposition to the death penalty. The issue goes far deeper than the fact that the death penalty could execute an innocent person. The death penalty is far too indiscriminate with the pain and suffering it imposes on those caught in its mechanisms. It's an act of intolerable cruelty to the victim's family, the condemned's family, the jurors and the society that witnesses a state sanctioned execution. For as long as we hold on to nothing else but the fear that innocent people will be executed as our founding principles for opposing this barbaric practice, we are tacitly supporting the death penalty in situations where there is no doubt as to a man's guilt.

What is so crucially important about this case is seeing that the state of Texas is forced to pay the price of confronting the truth. I have no doubt that the very foundations of the death penalty will be uprooted if the innocence of Todd Willingham is found to be finally irrefutable. What is it going to take for this conclusion to be reached? Probably alot of politics, dirty fighting and nitpicking, but I have no doubt that in the long run this institution of death in Texas and the U.S. will suffer a mortal wound from which it won't ever recover.

Quote of the day:

"The only statement I want to make is that I'm an innocent man - convicted of a crime I did not commit."
- Cameron Todd Willingham's last words