In Pennsylvania, a Clemency Catch-22

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More child sex abuse allegations, in yet another Pennsylvania case -- only this time local prosecutors are singing a different tune.

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Governor Tom Corbett (left) speaks to the Pennsylvania House as Lieutenant Governor Jim Cawley looks on. (Associated Press)

In the Alice-in-Wonderland world that is the Pennsylvania justice system, a man who won his clemency hearing Monday is scheduled to be executed anyway in two weeks. Terrance Williams -- a man raped throughout his childhood until he finally murdered his adult rapists; a man whose life before prison and redemptive life in custody caused even his victim's wife to lobby on his behalf; a man whose jurors tried 25 years after his trial to rescue him -- received three of five clemency votes Monday following a 90-minute hearing before the state Pardons Board. He won the day, 3-2, and yet he's still scheduled for lethal injection on October 3.

This is so because Pennsylvania law requires a unanimous clemency vote in capital cases, even where, as here, the condemned prisoner seeks no release from custody but rather life in prison without parole. It's been this way since 1997. The two dissenting votes -- two more death sentences for a man whose 1986 trial was incomplete and inaccurate -- came from the state's lieutenant governor, Jim Cawley, and Harris Gubernick, a longtime prison official. Voting in favor of clemency were state Attorney General Linda Kelly, "victim representative" Louise B. Williams, and Dr. Russell A. Walsh, a psychologist.

There was no written ruling that accompanied the vote. There was no official explanation or justification from the state Pardons Board to help us understand how dooming Williams serves the interests of justice. There was no press conference or email blast. But, really, what could the dissenters have said? That they blew off the wishes of Mamie Norwood, the victim's wife, who says today that Williams is "worthy of forgiveness" after all these years? It was her husband, Amos Norwood, who reportedly preyed on Williams, savagely raping him over and over again until Williams brutally murdered him in 1984.

Prosecutors evidently did reach out to Norwood's daughter -- by telephone, on the night before the clemency hearing, after 28 years -- and on Monday they told the pardons board that she was against clemency for Williams. Even Cawley was skeptical of the timing of the revelation. Pennsylvania also reportedly reached out to Mamie Norwood herself to get her to change her mind. Defense attorneys say that Mamie has told them that prosecutors and detectives came to her house twice recently to get her to recant. When a family member is against clemency, Pennsylvania rushed to embrace the news. The family member who was for clemency, the victim's widow, an elderly lady, got cajoling police officers at her door.

What in the world could Cawley and Gubernick possibly have written to justify ignoring the five jurors who served on Williams' 1986 jury? All five of them came forward recently, under oath, and said they never would have recommended a death sentence for Williams had they known about the sexual abuse he suffered, for years, as a child and young adult. Does that not satisfy the burdensome requirements for clemency? What would the dissenters have said to the three jurors who said they never would have recommended a death sentence had the trial judge candidly told them that a life sentence meant a life sentence with no parole?

What's revelatory here is that two pardons board members would reject clemency in this case -- at a time when the entire state is absorbing the terrible costs of child sexual abuse.

What could the dissenters say in the face of the recanted testimony of the state's primary witness against Williams, a man named Marc Draper, who says now that he lied at trial after getting a deal from prosecutors? What could they say about the fact that Williams' initial attorneys were so bad that they triggered "ineffective assistance of counsel" concerns on the part of appellate judges? Everything about this case stinks of inaccuracy and fraud, of a broken capital system common in states with scores of death row inmates. That's why even the state's Attorney General, its chief law enforcement agent, voted for clemency.

Usually, when politicians and bureaucrats vote in secret to execute someone, they come out later and say that they have done so in defense of the sanctity of victims' rights, or to defend the honor of the jury's verdict, or to ensure that the state's interest in justice is complete. Here, manifestly, there are none of these interests left to defend. So, instead, Cawley and Gubernick have defended an indefensible result; a flawed verdict that has been repudiated by the very people (the jurors, the witness, and the victim's wife) closest to the case. In this upside-down world, their pleas just weren't good enough. What was? We'll likely never know.

But we do know what prosecutors argued, and, for now, that will have to suffice. On September 7, the district attorney submitted a response to the Williams' clemency petition. In their five-page letter to the Board of Pardons, prosecutors first made an argument they say was given to them by the Board itself, on its website, where it says "the pardoning power has been used for extenuating circumstances in which the court could not act." Don't act like a "super court," prosecutors told the Board, don't do anything that all those state and federal court appellate judges weren't willing to do. Don't "overrule" the justice system.

But of course that defeats the very purpose of clemency, which is to serve as a backup in case the judicial system does not, for whatever reason, fix an injustice. Since clemency is rarely even requested, much less granted, when a defendant has a legal remedy that has been recognized by the courts, the prosecutors' theory of clemency here would make it a charade; you could only get relief if you didn't need it. And if you really needed it, like Williams does, because the courts have failed, then you can't get it because the courts weren't first willing to give it to you. It's a Catch-22 that could spell the end of Williams' life.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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