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.

The brief also tells us that some of the same state officials who came late to the Sandusky scandal, reassuring their mortified constituents that they are sensitive to the difficulties in reporting child sex abuse, have cynically turned that argument around in Williams' case. He didn't come forward, either, for many years, to report the ways in which he was being raped by older men, including older men in positions of power and trust. And now, say these politicians and bureaucrats, it's too late for Williams to bring it up; too late even though his life is on the line. From their letter:

How does Williams explain his curious failure to mention this allegation earlier? By likening himself to a young altar boy who is sodomized by his parish priest and so traumatized that decades pass before he is able to verbalize what was done to him. But the attempted analogy is cynical.

Terrance Williams is no altar boy, silenced by fear. He is a serial felon and murderer who has been claiming abuse for at least 15 years. There was the neighbor who raped him when he was five, the older friend who took advantage of him, the teacher who crossed the line, the assault in juvenile detention facility. How is it that he neglected to mention, either at trial or on his many appeals, the one alleged incident that would have been most closely related to his crime?

They think it's all a lie, that Williams has a "long record of manipulative and malevolent behavior" and that he's making it all up. Maybe they are right. But such a position means that that prosecutors also don't believe Norwood's widow, or the five jurors or the primary witness, Draper, whose testimony they relied on to get Williams' death sentence in the first place. It means they don't believe the former judges and prosecutors, scores of them, who wrote to say that Williams' trial was flawed. It means they don't believe the doctor who also recanted his trial testimony. They are all making it up. They are all in on the conspiracy.

Even though such extrajudicial evidence goes to the heart of the clemency process, even though it is patently relevant to an inquiry like this, none of these objections to Williams' death sentence, none of these requests for mercy from people involved in the original trial, were even addressed, much less disputed, in the state's letter. Then, at the hearing, after that last-minute call to Norwood's daughter, prosecutors tried to pit her against her own mother, implying that the feelings of the former were somehow more accurate and valid than the wishes of the latter. But no law requires the victims of a crime to be unanimous for clemency.

On Tuesday, the extent to which prosecutors are invested in defending this result became even more clear. Williams attorneys filed a request to have the Board reconsider its ruling because of what they called "a substantial misrepresentation" made by one of the prosecutors. Gubernick, who voted against clemency, asked if there were any validity to Williams' claim that Draper was promised prosecution help in getting parole in exchange for his trial testimony. The prosecutor said no. Defense attorneys say "that is simply false"-- and also the subject of a hearing Thursday in state court.

At that hearing, Williams attorneys plan to introduce a 1998 letter from Williams' trial prosecutor, a woman named Andrea Foulkes, who wrote to the Pennsylvania Board of Probation and Parole on behalf of Draper. "That I provide you with the particulars of Mr. Draper's cooperation was the only benefit or promise conveyed to him in exchange for his complete truthful cooperation," she wrote. The letter was obtained from Draper himself two weeks ago-- prosecutors never revealed it and then, when asked about on Monday, evidently denied its existence. Is that the kind of justice Cawley and Gubernick want to reward?

I can understand why the state wouldn't want to focus on the facts supporting clemency -- and why prosecutors would want to pitch the absurd idea that a clemency decision must be based upon a judicial decision. I can understand why prosecutors would want to use some of the same sleazy tactics now that they used at the long-ago trial. That's what far too many prosecutors do. What's revelatory here is that two pardons board members would endorse these tactics by rejecting clemency in this case -- at a time when the entire state is absorbing the terrible costs of child sexual abuse and the failure of people to timely report it.

Late last week, when I first wrote about this, I suggested that the Williams' case would shine a bright light on Pennsylvania's pardons system. And it has. And with that light has come great clarity. We now know that clemency in Pennsylvania, like clemency in Texas and far too many other states, is a cruel joke, a set-up where the deck remains forever stacked against men like Williams. As the case shows, requiring unanimity in a clemency case defeats the very purpose of clemency. One vote should be enough. And including a lieutenant governor on the board guarantees that the governor will always get the result he wants.

We'll likely never know why Cawley and Gubernick voted the way they did. My guess is that they felt that the prosecutors' letter provided enough legal justification, enough political cover, to justify the denial of clemency in the face of the significant public opposition to Williams' execution. Pennsylvania takes its death penalty seriously, is the message. Indeed. If Williams is executed in two weeks -- he has a last-chance court hearing on Thursday -- it is a decision Gov. Tom Corbett and his toadies on the Pardons Board are going to have to live with for the rest of their lives. I don't envy them the choice they have just made.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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