The House, Wednesday, March 25, 2009

Rep. Steven Lindsey (D - Ches 3)Thank you, Madam Speaker. Colleagues, I am the sponsor of this bill and I am here to defend its life. I'm a death penalty abolitionist and I'll give you the reasons why. Do we endeavor, cry and caterwaul, kibitz and shatter, but I think we can settle this right now here in this room. We can search our hearts and search our conscience if we ask ourselves three questions. That's three questions and if you can answer one of them in the affirmative, then you can make up your mind right now. The first question, do two wrongs make a right? Two wrongs, do they add up to a right? I think any school child can tell you the answer to that one. The second question, do we want to give the state the power of execution? Do we trust an institution made up of man who is not infallible to carry out something as important as this, something that demands perfection? Life or death demands perfection, do we have that capability? I think we've seen over the last couple of years with DNA analysis and innocent people found behind bars that you already know the answer to that too. The last question, number three, the third question, I pose to you right here is that are we infallible, do we have that right, the right that is normally accorded to perfection, to God? Search your hearts and search your conscience and let's make a decision now and we won't have to sully our states good name should this practice become expected. Thank you. Thank you, Madam Speaker. Speaker: Will the member yield to a question? The member does not yield. The question before the House is on the adoption of the majority committee report of Inexpedient to Legislate on HB 556. The Chair recognizes the member from Strafford, Representative Perry.

Rep. Robert Perry (D - Straf 3)Thank you, Madam Speaker. Friends and colleagues, following the revelations years ago that the State of Illinois put to death several innocent victims of a justice system gone awry, I quickly abandoned my support for capital punishment and rise today to speak in opposition to ITL on HB 556. The Innocence Project, a New York based affiliate of the Cardozo School of Law reports that since 2000 the nation has looked to Illinois as a leader on reforming it's criminal justice system in the wake of exonerations. The state has made important and historic progress toward making the system more fair and accurate in capital cases but has fallen short in other cases. For example, Dean Cage, after serving 14 years of a 40 year sentence for a crime he did not commit, is the 29th person in Illinois exonerated through DNA testing and one of 217 prisoners exonerated through post conviction DNA testing nationwide. The Justice Project, based in Washington DC reports that since the reinstatement of the death penalty in 1976, 130 people have been exonerated from death row in 26 states. That bears repeating. 130 death row inmates were found innocent of the crimes for which they faced death. Quote, "The most comprehensive study of capital trials ever conducted found that nearly 7 of every 10 death sentences handed down by state courts from 1973 to 1995 were overturned due to serious reversible error, including egregiously incompetent defense council, suppression of exculpatory evidence, eye witness misidentification, false confessions, snitch and accomplice testimony and unreliable forensic science." Unlike the state of Texas, with the most executions of any other state, New Hampshire is fortunate not to have exercised capital punishment since a death by hanging in 1939. Kirk Bloodsworth was the first person sentenced to death row to be exonerated by DNA evidence following two separate criminal trials and convicted at both. Think about the terror in his mind being convicted for a second time. He was sentenced to death for the sexual assault, rape and first degree premeditated murder of a nine year old Maryland girl. After years of asserting his innocence and demanding a DNA test, that test was finally afforded Mr. Bloodsworth and the lab concluded that his DNA did not match any of the evidence received for testing. After serving nine years for a crime he did not commit, two of them on death row, Mr. Bloodsworth was released in 1993 with a Governor's pardon. In May of 2004, a man named Kimberly Shay Ruffner, who's DNA matched evidence from the crime scene pled guilty to the murder for which Bloodsworth had been wrongfully convicted, again, twice. After nearly twenty-six years in a Texas prison, Johnnie Earl Lindsey was released in 2008 after post conviction DNA testing proved his innocence. Lindsey became the 19th man to be exonerated by DNA evidence since 2001 in Dallas County which leads the nation in DNA exonerations. Johnnie Earl Lindsey's conviction was through erroneous eye witness identification. Michael Graham was convicted of murder in 1987. After fourteen years in confinement on death row in Louisiana for a crime he did not commit, he was finally released with the help of a pro-bono lawyer in 2000. The case against Graham consisted of three witnesses who later recanted their testimony and a prosecution that withheld evidence of his innocence. Joseph Amrine convicted on weak circumstantial evidence and snitch testimony was sentenced to death following a 1986 Missouri murder trial. After spending seventeen years on death row for a crime he did not commit, Joseph Amrine was finally freed in 2003. Three years before his own death in 1961, my father returned from his mother's funeral. As he passed by me, head down on his way up the stairs to grieve for his mother, he said to me, "The trouble with death is that it's so finale." Not all of those accused of a crime have the benefit of DNA exoneration since not all crime scenes provide such evidence, so in those cases, we might never know when our system of American jurisprudence has failed those defendants. I urge that after 174 years of death penalty debate in New Hampshire, we conclude here today that the risk is too great that we might put an innocent person to the finality of death. We can do so by killing the death penalty. Thank you. Speaker: Will the member yield to a question? The member does not yield. The Chair recognizes the member from

Rep. Larry Brown (D - Straf 1)Thank you, Madam Speaker. Thank you, colleagues, I don't know which way the eyes are working today so it may take a time to find out which pair of glasses to use. What is remarkable about this House is the difference of opinion we have, different routes that we take and the courtesy to which we disagree. I will probably be speaking to the same side but I have a different perspective to offer. I came across an interesting question and the question is, what is the nature of grace and how does forgiveness enter our lives? It's not a question that we usually get in Municipal and County Government, but I think you will find that it resonates throughout the issues of this bill. Those who do not know Psalm 137 may recognize it by its first lines of the haunting sadness, "By the rivers of Babylon, there we sat down. Yea, we wept when we remembered Zion and we hanged our harps on the willows." If you know the old grave yards of New Hampshire, you will see those carved willows from 300 years ago for love and remembrance. If we can honor the love and remembrance of willow for life gone 300 years ago or 3000, why should we flinch to repay unmerited death with statutory death for murder done today? For me the answer to that question is at the end of Psalm 137, "Happy shall he be that taketh and dasheth thy little ones against the stones." Let me translate that for you. When our turn comes, we will take the Babylonian children for the love and remembrance of our own and we will smash their heads into the rocks. For the love and remembrance of our own. When our time comes what should the state of New Hampshire do for love and remembrance for unmerited death. I am not a charitable person and I am not as you might think, religious. My view of retribution is darker than death and I would like to demonstrate something for you. My idea is prison, prison and prison. To the gray destruction of gray concrete, gray walls and gray food and gray air. Prison when your mother dies outside the wall. Prison while family and friend turn to their own lives. Prison where one year is lost to the next, but time does not move. Prison where no one ever runs in the green grass of springtime with the fresh air of kites and the sound of children's voices. For me, you can convert to Jesus any day you want, but you will never leave this earth until you have every decay that time and earth can offer. Thank you for your attention. Thank you, Madam Speaker. Speaker: Will the member yield to a question? The member does not yield.

Rep. Robert Renny Cushing (D - Rock 21)Thank you, Madam Speaker. Members of the House, I rise to speak in opposition to the pending motion and I want to acknowledge at the outset that there is probably no more somber and solemn a discussion that will take place in these chambers than that which we have on this particular topic. In the first decade of the 21st century, the reason we have a discussion about the death penalty is because people are murdered and at the end of the day we are going to have, no matter what action we take, it's not going to be a vote or a discussion that we feel good about because at the end of the day people are still going to be murdered. I know that people of good faith have different perspectives on the death penalty. Some people support it. Some people oppose it. Some people don't know. I want to acknowledge that this discussion that we are having today, nobody has the moral high ground. There is a moral position in support of the death penalty and there is a moral position in opposition of the death penalty. I know that the speaker who will follow me, the member from Wolfeboro, is as articulate a spokesperson in support of the death penalty as we will find. I respect him and I respect his work. I respect his work as a member of law enforcement and I pay tribute to that and I know we all pay tribute to those who work in law enforcement and on the front lines of danger in order to make us all safer as a society. I would note that at the end of the day, we all share a common goal. That is the goal to live in a society where there is no violence, where people and their property are respected and that when criminals do wrongdoing, they are held accountable, punished and rehabilitated. I know that on this matter we are probably evolving. The discussion about the death penalty is constantly evolving in our thoughts. I also know that I want to honor and respect those people in law enforcement who have paid the ultimate sacrifice. I know that I stand here and recall people such as Michael Briggs and Jeremy Charron, Leslie Lord and Scott Philips and the other members of law enforcement whose names are inscribed on the memorial across the street in front of the legislative office building. I know that the families of those fallen officers woke up this morning and their loved ones are still gone and they still miss them and it's the same for everybody who has had a loved one taken by murder. That it's not just whether you're a member of law enforcement or a priest or a waitress or a teacher. For the individual whose had a family member taken by murder, that murder is the most heinous murder of all. It is the greatest robbery of life. It is the one that you love who was taken that rips your heart apart. There is a paradigm in our country, I think in our society that presumes that everybody who's had a family member murdered wants to see the person responsible put to death. They need that in order to find closure or find some kind of solace. As a consequence, legislators and elected officials everywhere are under almost a moral obligation to provide for an execution solution to victims pain. I have to tell you that that paradigm is not the truth. There are exceptions. Twenty years ago I went and stopped to visit my mother and father at their home for an evening and when I left, my father was sitting at the kitchen table reading Fosters Daily Democrat and my mother was on the couch watching the Boston Celtics playoff game. A little while after I left, there was a knock on the front door and my dad got up to open it and my mother watched as two shotgun blasts rang out turning his chest into hamburger. He died in front of my mother in the home that they lived in for 35 years and where they raised their seven children. For me, when I talk about what you do in the aftermath of homicide and the aftermath of murder, it's not an intellectual exercise, its part of my life. I can just tell you that murder is different. We are used to having death come, hopefully in the night when we are about 108 or maybe we will get a disease or maybe it will happen in an accident, but we are used to death coming in a way that we can't really comprehend. We recognize it as being the act of the deity. When the death comes at the hands of another human being, that's very disconcerting because it's hard for us to try to recognize and none of us can imagine us playing the role of a life taker. When you deal with murder, you experience the grief that we all have when we lose a loved one, but you also deal with a trauma and you also deal with a crime. The trauma tosses everything in your life up in the air and for the survivor of a murder victim, the process after the killing is all about trying to regain control over your life, that control that's been taken away from you by the killer. I found out that murder was a different kind of crime right after my dad was murdered. I remember having to go and stand at a phone bank and make a call to my six brothers and sisters in the Exeter Hospital. The same bank I had stood at six weeks earlier to announce that my first daughter had arrived. I made the calls to tell them my father had died, but also that he had been killed and I couldn't explain why. I remember not being able to take my dads body at that moment to a funeral parlor because my father's body was no longer his body, it had become a piece of evidence and I watched it as it was loaded into the ambulance and taken to Concord where it would be photographed and dissected and otherwise preserved for some future criminal justice process. I knew that my father was murdered in the house and the house was no longer a home, it was a crime scene. I remember what it was like after the police had left and taken down the yellow tape looking and seeing my father's blood on the floor and walls and thinking to myself, how am I going to get that up? I am a pretty resourceful person but I couldn't do that, I had to ask for help. I remember what it was like three weeks later when my mother got a bill in the mail from the ambulance corp. and she opened it up and she said, "I can't believe that I have to pay for my husband's murder," because it was about getting a bill for transporting my father's corpse from the home to the hospital. Those are all part of the experiences that being a survivor of a homicide victim that often times people don't understand. I share that with you because I think it's important for you to know that this is a really complicated issue. I can say that after my father was murdered I didn't think right away much about the issues related to the death penalty. I was more concerned about what to do with the empty chair at the table and what to do with the emptiness in your heart and what to do with the crying that was going on in my household. Something happened a couple of days after my father's killers were arrested. I went to the corner store and an old friend came up to me and he said, "Ray, I hope they fry the bastards. I hope they fry the bastards so you and your mother and your family can get some peace." I was taken aback and didn't know what to say. I couldn't say anything at that moment but I know this paradigm that's out there that presumes that murder victim family members want the death penalty and I understand that he was trying to give me some kind of comfort by saying he wished that. What struck me about it is that he knew me and he had known me my whole life and he knew that prior to my father's murder I had opposed the death penalty. I did so in part because of being raised in the Irish Catholic faith tradition, but also because when I was my own daughter's age I'd made some decisions about the kind of life I wanted to live and the world I wanted to live in. That included a world where there wasn't violence, where life was respected, but I never thought the death penalty would affect me directly. I thought about what he said to me and I realized that he had presumed that because my father was murdered I would change my position on the death penalty. I realized that if I did that that would only give over more power to the killers. That would only give over more power to the murderer because not only would my father be taken from me, but so would my values. It is the same for society as it is for individuals. If we let those who kill make us into killers, then evil triumphs and we all lose. I also realized as I was going through that, that in a way because in our society silence is consent, that in a way, oh my God, another burden imposed upon me as a survivor of a murder victim. Because silence is consent I almost had an obligation to speak out to tell people who presumed that as a murder victim family member I support the death penalty that they were wrong and that in fact I oppose the death penalty. I stand here in front of you today in part to honor my father and in part to say that not all family members of murder victims want the death penalty. After my father was murdered it was really easy to see how my family had been affected, how my neighborhood had been impacted and everybody in my circle of friends. In time I came to see that those who were impacted by my father's killer included the family of my father's murderer. I didn't know the man who killed my father. My father's name was Robert Cushing and I'm Robert Cushing, Jr. The man whose finger on the trigger, took my father's life, his name was Robert McLaughlin and he had a son, Robert McLaughlin, Jr. One day in Rockingham County Superior Court, Robert McLaughlin, Jr. was there at a pre-trial hearing and afterwards he and I met. It was kind of a weird thing to meet somebody under those circumstances. The only thing you have in common is a homicide. He started apologizing for my father's murder and I said, "You don't have to apologize to me. We both lost our fathers on June 1st." Because, mine was in the grave and his was in the jail cell. I wish my father had never been murdered, but I'm glad for the values he gave to me. I was just thinking that I hear him all the time in my children's voices and that is kind of a nice thing and I can talk about him. I look at Robert McLaughlin, Jr. and he is the son of a murderer. That is an entirely different cross to bear. I think about that and I hear things like the apple does not fall far from the tree and it enrages me. Think about what the state of New Hampshire tells me I should want for him because we have this particular penalty for killers. I'm told that to be a good victim, to value my father's life I first of all want the most severe punishment. I'm supposed to want for Robert McLaughlin, Jr. to go down the street outside the state prison, wait until his father is taken from his cell, strapped to a gurney and a needle pumped into his vein until he is dead so he can claim that? Know the pain of the funeral parlor and the emptiness of the graveyard? That doesn't bring my father back. Filling another coffin just creates another grieving family and it's not something that I want as a tribute to him at all. I will tell you it's a difficult journey being the survivor of a homicide victim and healing. We care about holding perpetrators accountable. No one wants to see killers held accountable more than me. We believe in justice, it's very important, but at the end of the day there is an individual challenge and this is also a society challenge and that is people want to heal. Healing is a process, it's not an event. I have to say that those people who advocate for the execution solution to victim's pain have a fundamental lack of understanding that you don't get better from a ritual killing by public employees of a prisoner. No matter how many times you kill them, it doesn't bring anybody back. I want you to know that it would be important to those of us who have had family members murdered who oppose the death penalty that the State of New Hampshire make a statement on behalf of life. I want you to know that its time to abolish the death penalty. There is a guy named Nelson Mandela who knew about the death penalty. He faced it at one time and then spent twenty-seven years in prison and when he got out he didn't look back in anger, he had work to do. He had to free South Africa from the burden of apartheid and he went on to become the President of a new South Africa. A country where one of the first steps he did was abolish the death penalty. Nelson Mandela was asked one time what he thought about parliamentarians, what he thought about political leaders or legislators who supported the death penalty. In his soft way he said, "Those law makers who support the death penalty just haven't fully evolved." I would hope that you would think about that and I would hope that as a society in New Hampshire and as law makers that we would evolve to the point where we can recognize that the death penalty is something that we can live without. I would ask you today to press the red button to defeat this motion. Press the red button and then go on to abolish the death penalty. I ask you to do that in the name of my father. Speaker: Will the member yield to a question? The member does not yield.

Rep. Stanley Stevens (R - Carr 4)Thank you, Madam Speaker. My esteemed colleagues, it is very tough to follow a speaker like that. We are going to talk about New Hampshire, though. He was talking about New Hampshire and I am going to talk about New Hampshire. I'm not going to talk about Illinois and I'm not going to talk about Texas. How they do things is not our business. I'm going to talk about the death penalty as it's applied in New Hampshire in a very narrow way, very closely crafted. Also to remind you that we just passed a bill to study this that I supported. I think we can study this and determine where we can go with this. Now, where I intended to start. Unfortunately, personal tragedy is a very real part of law enforcement. Every officer regardless of rank, age, sex, size of department or any other factor could be called upon at any time to give the ultimate sacrifice. Every officer knows the potential dangers yet willingly takes that risk every time they report for duty. I began my police career in 1963. When I started, the country had never heard of Danny Miranda. He became famous in 1965 as the Miranda in the Miranda Warning. I cite this just to put this time span into perspective. Prior to 1963, there had been four police officers feloniously murdered in the line of duty. The first recorded was 1891. We haven't had organized police departments in this country much before that and in this state they began somewhere around the 1870's. The first in 1891 followed by 1921, 1924 and 1928. Now we are up to 1963 when I started so it has been a number of years when there were no police officers killed. September 12, 1971, that's when we had the next felonious murder. On that date, Rockingham County Corrections Officer, Robert Prescott was on duty at the Rockingham County jail. Prisoner Lawrence Conklin using a makeshift knife stabbed him to death. Officer Prescott died from his injuries before he reached Exeter Hospital. He was 27 years old. We have corrections officers in these prisons right now that have to deal with inmates that are dangerous like this. If we are going to put killers in there, we can expect that these things may well happen because they are now in jail and these corrections officers face them daily. Just one month later, on October 17, 1971, acting Chief Armand J. Roussel, age 50 of the Nashua police department was shot to death. He was trying to break up a hostage situation when he walked up unarmed and was shot and killed. He was survived by a wife, five sons and a daughter. Oddly enough, the inspector that was with him was a friend of mine who later became the Chief in Nashua, Ray Landry. He was with him at the time. It made it a little more personal for me knowing one of the officers involved. Five years passed. In October 1976, Officer Ralph W. Miller of the Nashua police department went to a house on Hall Street to investigate a report of a loud party. He and another officer approached the porch. When they approached the porch, a shot from a high powered rifle came from behind the door hitting Officer Miller in the chest. He died at Catholic Medical Center. He was 25 years old. He was survived by a wife and daughters. His killer was a 15 year old boy. That 15 year old boy is still in the New Hampshire state prison doing life without parole. He's at the top of the heap inside prison because he is a cop killer. It would be eighteen years before tragedy again would strike. On October 3, 1994 Sergeant James Noyes of the New Hampshire State Police was negotiating with an armed and barricaded man when the man shot Sergeant Noyes with a rifle. He survived by his wife and two sons. By the way, his oldest son is now a New Hampshire State Trooper. I knew Jimmy Noyes personally. He was an outstanding police officer, an outstanding family man and member of his community. August 1997 was the single most deadly day for law enforcement in New Hampshire's history. On that date, troopers Leslie Lord and Scott Phillips reported for duty for the last time. By afternoon, they had both been shot to death by Carl Drega. Officer Philips had returned fire when he realized what had happened because he came into the scene. Officer Lord was already down, seriously injured. After Drega shot and killed Philips he walked up to and executed Officer Lord point blank. He wasn't done yet. He went over to a building in the town of Colebrook. He shot and killed Judge Vickie Bunnell. She's the only justice ever murdered. He also killed the editor of the local newspaper, Dennis Joos who had attempted to intervene. Before being killed in a shoot out with police, Drega had wounded two other law enforcement officers. One of them was a conservation officer and you know what saved him? The shot struck him in the badge. That was a real shield for that man. He survived. Trooper Lord was 45 years old. He was survived by a wife and two sons. Trooper Philips was 32 years old. He was survived by his wife, a son and a daughter. Just five short days later, Officer Jeremy Charron of the Epsom police department was shot and killed during a routine check of a suspicious vehicle. He walked up to check the occupants and without a word they fired at him, killed him. He was 24 years old. 1999, I retired from police work. During the time that I was active in law enforcement, six police officers, one correction office and one judge were murdered. In 2000, I became a member of the General Court. I stood here each term asking you to retain the death penalty. During this period, two other names have been added to the list of those who gave the last full measure. On Monday, October 16, 2006, Officer Michael Briggs of the Manchester police department was shot and killed in an alley way. I'm sure most of you are familiar by now with this incident. Officer Briggs left behind a wife and two sons. He was 35 years old. Ironically, Officer Briggs had been a member of the Epsom police department and had worked with Officer Jeremy Charron. Then on May 11, 2007, Corporal Bruce McKay of the Franconia police department was shot and run over by Liko Kenney during a routine traffic stop. Mr. Kenney was subsequently shot and killed at the scene by a passerby. Corporal McKay was 48 years old. He left behind a fianc� and a daughter. Who are these police officers, these judges, these correction officers? I don't mean who are they as individuals; I've given you an overview of them in that respect. I mean who are they as an institution? They represent us as our guidance. They are the ones we send out to enforce the laws that we write. They are the ones that we task with dispensing justice in our name. They are the ones that we expect to maintain order with our jails and prisons. They are sent to stand between us and lawlessness. As such we have had a covenant with them for many years. That covenant is that if someone takes their life while they are performing their duties in our name, that we will place the life of their killers a price that took away our protectors. We don't do this lightly. We set many requirements on our prosecutors. These must be proven beyond a reasonable doubt to a jury, not to the state. You asked the question about the state executing people. The state doesn't convict them. They prosecute the case. You and I, our peers convict them. We do it. The people on the street, our neighbors and they do that in two separate stages. You saw this play out in this recent case. In two cases you saw it play out. In the case of John Brooks, it was a murder for hire. He was found guilty of capital murder and the jury said the death sentence could apply. In that case as in every case, you go to a second phase of trial. That second phase of trial, the jury determines both those factors that they consider make the crime so bad as to deserve murder. Those must be proven beyond a reasonable doubt and the defendant produces mitigating circumstances which they have to prove by preponderance of evidence which is slightly more than the other side, 51/49 balance. That's what they have to prove to the jury. The jury makes that decision. In the Brooks case, they determined after hearing these factors the death penalty would not apply. I will tell you because they don't poll the jury, I can't tell you how many were against that but I know it only takes one. If one person votes not guilty out of the twelve, in the criminal trial you cannot execute. If one person votes no in the penalty phase, you cannot execute. Michael Briggs you saw an opposite result. The jury had to make the same considerations. In that case and I have read both of the jury verdict forms, Michael Addison had a record that is about as long as your arm. This was a young man and he had a horrible record, attempted murder. He had tried to kill another person, fired twice point blank at their head and the gun did not go off. This was not a good person. The jury so found and they said no, we are going to sentence you to death. New Hampshire has a very close tight law. It's purposely so, it has to be so, I want it to be so. I think that if we can go ahead looking into this commission to study this, we may find ways or they may vote eventually to get rid of the death penalty. They may come forward and say that it can be improved in certain way. I think they should have time to work on that. I ask you now to join me and the majority of the criminal justice committee in continuing this covenant in memory of those that have already given and those who will some day make the ultimate sacrifice. Thank you, Madam Speaker and my honorable colleagues. Speaker: Will the member yield to a question? The member does not yield. The House recessed at 12:30 p.m. RECESS (Speaker Norelli in the Chair) The House reconvened at 1:45 p.m.