• Ohio governor grants clemency to death row inmate

    By Isolde Raftery, msnbc.com

    ­­­­In 1987, Prosecutor Gary Van Brocklin addressed a panel of three judges deciding the fate of a man who had killed store clerk Ihsan Aydah of Youngstown, Ohio.


    “Give him the same consideration he gave Ihsan Aydah – give him death,” Van Brocklin said. The judges agreed and sent the defendant, John Jeffrey Eley, then 38, to death row.

    On Tuesday, 25 years after Eley was sentenced, Ohio Gov. John Kasich granted him clemency, in part because Van Brocklin, police detective Joseph Fajack and Judge Peter Economus changed how they felt about the case.

    “It was something that bothered my conscience,” Van Brocklin told msnbc.com on Tuesday. “He wasn’t smart.”

    At the time, a clinical psychologist found that Eley had borderline intelligence. Since then, a psychiatrist has found him to be mentally disabled -- relevant because the Supreme Court ruled in 2002 that mentally disabled defendants cannot be sentenced to death.

    Van Brocklin recalled that Eley hadn't seemed sharp. The former county prosecutor, a self-described conservative Republican, said he had offered Eley a four-to-six year sentence in exchange for his testimony against his accomplice, Marvin Green. Green had given Eley the gun and told him to hold up the store.

    But Eley refused to testify against his old friend.

    “To this day, he quotes the Bible saying you shouldn’t be a witness,” Van Brocklin said. “But the Bible says you shouldn’t bear false witness. He’s not a bright guy.”  

    There were other details about the case that bothered the three lawmen. Eley had waived his right to a jury trial – that wouldn’t happen today. Also, life without parole was not a possible sentence at the time.

    “This was the kind of case that nowadays would not be indicted capitally,” Van Brocklin said. “John Eley killed a man – life without parole would be a fair punishment. I never felt that I was overzealous, but I felt that it wasn’t fair.”

    In June, Judge Economus wrote the parole board: "If I had been presented the additional mitigating evidence outlined in the clemency petition at the time of the trial, especially evidence of Mr. Eley's low intellectual functioning, his impoverished childhood, his significant alcohol and substance abuse, and his probable brain impairment, I would have voted for a sentence less than death." 

    It hadn't helped over the years that defending Eley was difficult, said Vicki Werneke, the assistant federal public defender who oversaw his case. Eley refused to be evaluated and spoke with her only by phone.

    “He told his sisters he thought he would be released from prison and that Jesus was going to save him,” Werneke told msnbc.com. “I’m a believer and I think that maybe God did have a hand in it, but maybe it was through us.”  

    But the state didn't heed their pleas. On June 20, exactly 10 years after the Supreme Court ruling, an Ohio parole board voted, 5-3, to uphold Eley's death sentence.

    It was unusual for the board to be divided, Werneke said. Even more so, however, was that the governor overruled their decision.

    Then again, Gov. Kasich appears to be examining death row cases. In September, he spared a man who had slashed a woman’s throat during a 1987 robbery, The Associated Press reported. The governor said he was compelled by the man’s mental health history and the story of his tragic childhood.

    In June, the governor removed a man from death row because the details of the crime were “frustratingly unclear.”

    Of the governor, Van Brocklin said, “I have to commend him for a courageous stand. It’s easy to run the other way.”

    More content from msnbc.com and NBC News:

    Follow US News on msnbc.com on Twitter and Facebook

  • Texan to Obama: Forget Thanksgiving turkey, pardon long-dead writer O. Henry!

    Courtesy O. Henry Museum, Austin

    William S. Porter, better known by his pen name, O. Henry, was convicted of embezzling in 1898. But the prolific American writer, especially celebrated for his short stories, is the subject of a new campaign for a posthumous presidential pardon.

    By Kari Huus, msnbc.com

    A Texas activist wants big changes in the way the criminal justice system works, but he’s launching his campaign with a goal that he thinks should be easy for people to agree on — the presidential pardon of celebrated American writer O. Henry, 102 years after his death.

    Scott Henson, a former investigative journalist and blogger on the criminal justice system, launched a petition drive Thursday, with the aim of delivering 10,000 signatures to President Barack Obama by Sept. 11, O. Henry’s birthday.


    Kari Huus


    Follow Kari Huus on Twitter and Facebook.


    "This petition aims both to honor and exonerate a great American writer and to call attention to a withering and atrophied clemency process, one which no longer functions as robustly either as justice demands or America's constitutional framers intended," said Henson.

    O. Henry, whose real name is William S. Porter, was convicted in 1898 of embezzling from an Austin bank where he worked as a teller.

    Some historians say the trial was badly flawed and there were serious problems with the bank’s lax record keeping at the time — so Porter’s actual guilt is in question.

    Porter made things worse for himself when he skipped bail and fled to Honduras. But on news that his wife was critically ill, he returned to Austin to care for her, and appear at his trial, according to a Texas history web site, Lonestar Junction.

    Porter’s wife died, and he served five years in an Ohio prison, after which he stopped using his real name altogether in an effort to hide his identity. He moved to New York, where he produced some of his most acclaimed works.

    But he died of alcoholism at the age of 47, nearly penniless.

    Even if O. Henry was legitimately convicted of the crime, Henson says, his case is an excellent opportunity for a presidential pardon, an executive power held by governors and U.S. presidents that is exercised far less than it was half a century ago.

    O. Henry published hundreds of stories, before, during and after his prison sentence, gaining fame for his detailed depictions of Texas and New York.

    One of the more famous stories "The Cop and the Anthem" depicts a New York hobo named Soapy who tries repeatedly -- and fails -- to get arrested so he can be a guest of the jail. Finally, while passing by a church, Soapy is inspired to clean up his life, only to be arrested for loitering and sentenced to 3 months in jail.

    The most prestigious award for American short stories is the PEN/O. Henry. There are museums that celebrate his legacy, including the O. Henry Museum in Austin, Tex. — as well as towns, schools and other buildings named after him, including the University of Texas-owned building that housed the court where Porter was convicted.

    This year, the 150th birthday of O. Henry’s birth, the U.S. Postal Service is rolling out a postage stamp featuring O. Henry’s face.

    When President Obama pardoned the Thanksgiving turkey in 2011, who did he quote? O. Henry.

    The irony of that presidential ritual prompted Henson to write “Eat the turkey, Pardon O. Henry,” in his blog on Texas criminal justice system, "Grits for Breakfast." He then bought the domain names PardonOHenry dot-com, dot-org, and dot-net.

    The petition invokes the case of O. Henry as a way of highlighting the power of presidents to restore the political rights of ex-felons, expunge criminal records, commute sentences, clear the name of someone falsely or unfairly convicted, even those of the deceased.

    "Pardoning William S. Porter would signal that you understand and value the true purpose of executive clemency powers in the justice system — not just as a symbol but also a remedy for both actual innocence and unfortunate guilt,' (referring to an expression from the Federalist Papers) one that provides a healing salve even for century-old wounds," says a letter accompanying the petition to Obama.

    Obama has so far been among the stingiest American presidents in exercising the powers of clemency, as recently reported by msnbc.com, but Henson says that this is merely the continuation of a trend among modern presidents.

    Watch US News videos on msnbc.com

    And posthumous pardons are extremely rare.

    A recent study by Stephen Greenspan, clinical professor of psychiatry at the University of Colorado, tallied  posthumous pardons for 106 individuals throughout U.S. history, including 12 who were executed.

    At least one previous effort to win a posthumous pardon for O. Henry in 1985 ended without success.

    Another posthumous pardon request — arguably one with more symbolic heft — was rejected by the Obama administration in 2009.

    In that effort, spearheaded by Sen. John McCain, R-Ariz., and Rep. Peter King, R-N.Y., the subject was black heavyweight boxer Jack Johnson, who was imprisoned nearly a century ago for violation of the Mann Act, which made it illegal to transport women across state lines for "immoral purposes." The case was seen as punishment for Johnson's unapologetic relationships with white women, and a warning to other black men.

    That petition was rejected at the time by Obama’s justice officials who said that the administration did not grant posthumous pardons.

    But Henson sees growing interest in the presidential pardon power — or the lack thereof. It gives Henson a "test drive" opportunity for a new lobbying organization that he is setting up to press for criminal justice reform, including greater use of clemency.

    And, he’s billing a pardon of O. Henry as an easy move in the right direction.

    "It’s kind of a low-risk thing for Obama, just like it’s a low-risk thing for me," said Henson. "It’s a fun campaign to be the first thing out of the gate and, meanwhile, the pardon issue is a real issue."

    More content from msnbc.com and NBC News:

    Follow US News on msnbc.com on Twitter and Facebook

    Follow Kari Huus on Facebook

     

     

  • President Obama 'stingy' on pardons, says clemency expert

    By Kari Huus, msnbc.com

    Pool / Getty Images

    President Barack Obama greets guests during a Cinco de Mayo reception in the Rose Garden at the White House on Thursday.

    President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.


    Kari Huus


    Follow Kari Huus on Twitter and Facebook.


    "It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

    As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.

    While campaigning for office, Obama was critical of the mandatory minimum penalties for drugs, especially those that specified much heavier sentences for those using crack cocaine than to the ones associated with more expensive powder cocaine.

    Mandatory minimums, which emerged in the 1980s, are partially responsible for swelling federal prison populations — to 218,261 on the week of May 3, compared to 24,363 in 1980, according to government documents. 

    In April 2010, the president signed into law the Fair Sentencing Act, which aimed to even out the mandatory minimums, which critics say are discriminatory to African Americans.

    But Obama did not — as some expected or hoped — go on to throw open the doors for large numbers of people incarcerated under the old mandatory sentences.

    Instead, most of the president’s acts of clemency — about half of them for drug-related offenses — have followed a pattern that has changed little since President Eisenhower.

    "The great majority of activity that goes on today is pardons — typically for old, minor offenses, and minor sentences. All it does is restore (the convicted person) their rights — so they can vote, carry a gun to go hunting,” Ruckman said. "Arguably they are most often given to the people who need them the least."

    Single commutation for drug sentence
    In fact, most people who are pardoned have not served any jail time. In Obama’s case, that was true of 12 of the 23 people he pardoned. All but one of the others had long since been released.

    See Ruckman's chart of pardons by president
    See Ruckman's chart of pardons by presidential term

    That one exception came on Nov. 21 — the president’s most recent use of his pardon powers — when he commuted the sentence of Eugenia Marie Jennings, 34, who had served about half of her 22-year prison term for a cocaine distribution offense. She got out in December, with eight years of supervised release.

    In a statement then from the nonprofit Families Against Mandatory Minimums, president Julie Stewart urged Obama "to continue exercising his clemency power and grant more commutations to the many deserving federal prisoners, like Eugenia, who have paid a hefty price for their mistakes and deserve a second chance."

    Obama could step it up in the last quarter. Historically, presidents do tend to grant more pardons in the fourth quarter of each year, especially the fourth quarter of the final year in the term, Ruckman said.

    Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32.

    Watch the Top Videos on msnbc.com

    The odds of being granted clemency have become much tougher over the years, with applications climbing into the thousands per year, and presidents awarding fewer of them, as illustrated in this graphic from the Department of Justice.

    Second-term flurry?
    Obama may also be reserving acts of clemency for his second term, if he gets one. 

    Presidents Bill Clinton and George W. Bush both granted many more pardons in their second terms than they did in their first. Clinton famously — and controversially — pardoned 120 people in his final hours in office, including his half-brother Roger Clinton who had already completed a sentence for drug charges, and Marc Rich, a fugitive millionaire who was living in Switzerland and was wanted in the United States on tax evasion charges.

    But none of these recent presidents comes close to President Franklin Delano Roosevelt in the use of pardon power. He granted about 600 pardons and commutations by the end of his first term, and about 2,800 over the course of his historic 12 years in office (1933-1945) before the two-term limit went into effect. 

    But even among modern presidents, Obama's current pace keeps him firmly among the most conservative American presidents to use these powers of forgiveness.

    The average age of individuals pardoned by Obama is about 61, according to Ruckman and the average time between the original sentence and executive clemency granted by this president is 24.3 years. 

    Follow Kari Huus on Facebook

    More content from msnbc.com and NBC News:

    Follow US News on msnbc.com on Twitter and Facebook

     

  • Board rejects clemency for Ohio man facing execution over son's arson death

    By Miranda Leitsinger, Staff Writer, NBC News

    A man sentenced to death for intentionally setting a blaze that killed his 3-year-old son was denied clemency on Wednesday by the Ohio Parole Board, despite his attorneys' arguments that there was another viable suspect and that authorities should re-examine the case due to scientific advances made in fire investigation.

    Michael Webb, 42, was found guilty of aggravated murder in the death of Michael Patrick Webb in a Nov. 21, 1990. fire in Goshen Township in Ohio (Webb's wife and his three other children survived the blaze). He was also convicted of aggravated arson, attempted aggravated murder and aggravated theft. His lawyers wanted his sentence commuted to life without parole to give him time to pursue a new trial.

    In its recommendation to the governor to deny clemency, the Parole Board discounted the possibility of another suspect, saying it would require "an extraordinary stretch of the imagination," and noted that Webb's "stealing money from his daughters' trust fund for years" had created a "powerful motive."

    "This crime was very heinous," said the eight-member Parole Board, which voted unanimously. "The courts have reviewed the claim that the prosecutor withheld important evidence, and determined that it is without merit. ... Given the overwhelming evidence of guilt, there is no manifest injustice in this case that would warrant the grant of executive clemency."

    Township Fire Chief Virgil Murphy's investigation revealed that gasoline had been poured on the bed of one of Webb's daughters and he smelled it on the bedclothes of his other daughter. Other "trailer" patterns that contained gasoline were found on Michael Patrick's bed and at the base of the bed in the master bedroom, according to the Ohio Supreme Court opinion in the case, the board said.

    AP Photo/Ohio Department of Rehabilitation and Correction

    Undated photo provided by the Ohio Department of Rehabilitation and Corrections of Michael Webb.

    The board interviewed Webb on Jan. 13 via video conference from the Chillicothe Correctional Institution. In it, he "asked for clemency claiming that he is innocent of the crime of setting his house on fire and killing his son. He said that he would like to get a new trial and clear his name," the board noted.

    Webb's execution, initially set for Feb. 22, has been delayed due to problems with Ohio's lethal injection method. A new date has not been set, said one of Webb's attorneys, Jim Owen.

    At a hearing last week on the clemency request, Owen and another attorney for Webb, Keith Yeazel, said the jury was "deprived of two key pieces of evidence" in the case: the information about another suspect and the modern scientific interpretation about the fire's site of origin, according to the board decision.

    The site of origin was important because a report, submitted by Webb's attorneys, showed it could have started elsewhere on the first floor -- not just outside the bathroom where Webb was standing. This made "it plausible that someone besides Webb started the fire and that Webb would not have seen the actual arsonist," his lawyers argued, the board said in its finding.

    The report, by Texas-based arson expert Gerald Hurst, said the fire chief relied on methods that 20 years of arson science have found unreliable, according to The Associated Press.

    However, the Parole Board noted that Hurst's report did "not preclude the state's version of the offense as it indicates that the point of origin of the fire could have been anywhere on the first floor. Therefore, the point of origin could have been the bathroom and the closet as was testified to by (Township Fire) Chief (Virgil E.) Murphy."

    Owen said the decision was not “unexpected” and they were working with other lawyers to file a motion for a new trial. He noted that new trials have been granted in cases based on "improper fire science evidence."

    “The clemency board really didn’t address the issue we raised, which was that the testimony about the point of the origin of the fire at trial was wrong and not based on science. As a matter of fact in their statement of facts, they cited Murphy’s testimony that we’ve proved was not based on science and that fact is uncontroverted," Owen said. "There’s no scientific expert opinion offered by the state that says that the trial testimony was correct. Every person that’s looked at this and given a scientific opinion concludes that the testimony was wrong.”

    Death-penalty cases need a higher standard, than "beyond a reasonable doubt," said Richard Dieter, executive director of the Death Penalty Information Center, which in mid-December reported an "historic drop" in the number of death sentences imposed in the U.S. over the last 15 years.

    "With the advancements in science I think these cases do present some doubts ... changes in what the jury would hear today from what they heard at the original trial," he said. "Given the stakes here that the person's life will ride on this decision, I think that should be part of the governor’s ultimate decision, is there any doubt? Is there a lingering doubt?”

    In a statement submitted to the board, Webb's ex-wife, Susan Beck, asked for "no leniency" for him, saying he "showed us no mercy on the morning of November 21, 1990."

    Looking back at journals she kept for three years after the fire, "it becomes more unbelievable that my family survived what Mike Webb did to us, plus its aftermath. I can't believe we stood behind this murderer ... this baby-killer ... who saturated us with gas, lit us on fire and made no attempt to save us. ... Because of Mike Webb, my dreams of raising a family literally went up in smoke."

    More content from msnbc.com and NBC News

  • Pardon of violent criminals sets up Miss. legal battle

    On his last days in office, Mississippi Gov. Haley Barbour confused many of his constituents when, without explanation, he granted pardons or early releases to more than 200 convicts. NBC's Mark Potter reports.

    By msnbc.com staff and news services

    Updated 8:40 p.m. ET: In response to criticism about the pardons, former Gov. Haley Barbour released a statement from his office Wednesday evening that said 189 of the more than 200 people pardoned were already out of prison.

    "My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases," the statement said.

    The statement, reported by WTVA of Tupelo, went on to say 13 of the 26 inmates released from custody cost the state a lot of money due to their medical expenses and can be returned to custody if they commit another crime.

    Updated 8 p.m. ET:  Mississippi Circuit Judge Tomie Green has temporarily blocked the release of 21 inmates who'd been given pardons or medical release by Republican Haley Barbour in one of his final acts as governor.

    Original story

    JACKSON, Miss. -- The state attorney general on Wednesday moved to block the release of some inmates pardoned by Gov. Haley Barbour in his last days in office, claiming the move may have violated the state Constitution.

    Attorney General Jim Hood said the law requires a legal notice of plans to pardon to be published 30 days prior to the action. He said his office couldn't find such a record.

    “Unfortunately our research has revealed that Gov. Barbour violated the Constitution,” Hood told The Clarion-Ledger. “We’re seeking to stop the release of any prisoners.”

    Hood told WLBT-TV in Jackson, Miss. that he planned to file an injunction at Hinds County Circuit.

    Read original story from WLBT.com

    On his last day as Mississippi governor, Barbour, a Republican, surprised friends and foes by granting more than 200 pardons, clemency or early release for people convicted of crimes including murder, rape and armed robbery. His actions included 21 people convicted of murder, according to NBC News. 

    Also included were four inmates who had worked at the governor's mansion doing odd jobs under a program that rewarded good behavior.

    Among the pardoned was the brother of retired National Football League star quarterback Brett Favre. Earnest Scott Favre was convicted in 1996 of driving while intoxicated resulting in the death of his best friend. He was sentenced to a year of house arrest and two years probation.

    'Seems very excessive'
    While pardons by outgoing governors and presidents are not unusual, the number and the types of crimes stand out, said Marty Wiseman, a Mississippi State University political scientist and director of the school's John C. Stennis Institute of Government.

    "That seems very excessive to me," Wiseman told The Associated Press. "I don't recall this many crimes that serious being pardoned by anybody."

    Barbour has provided no public statement on the decisions. Former Lt. Gov. Phil Bryant, also a Republican, has officially taken office as governor.

    Until this month, Barbour had issued only five pardons and three indefinite suspended sentences in eight years as governor.

    The Associated Press contributed to this report.

    More content from msnbc.com and NBC News: