United States: Death Penalty Updates

When Illinois Governor George Ryan granted blanket clemency to all 167 inmates in the state’s death row last January, the last thing one might have expected was for any of them to object. But for Gregory Madej, still residing in Stateville Prison in Joliet, the Governor’s commutation of his death sentence to life in prison was a let-down.

Mr. Madej, a Polish national, was convicted of murder and felony murder in 1982 for rape, deviate sexual assault, and armed robbery. He was sentenced to death. He spent the next two decades appealing his conviction and sentence. In March 2002, Judge David Coar of the Northern District of Illinois granted him a writ of habeas corpus, because he had received ineffective counsel at his original sentencing. The court vacated Mr. Madej’s death sentence and ordered that the state re-sentence him within 60 days of the March order, as supplemented on September 25, 2002.

In August 2002, when he was represented by the Chicago office of Skadden Arps, Mr. Madej applied for clemency from Governor Ryan. He attempted to file a clemency petition that took into account his vacated sentence. He asked for a commutation to a term of years or no relief at all. Instead, Governor Ryan commuted his sentence to natural life.

A new element came into play in February. The new Illinois Attorney General, Lisa Madigan, challenged the clemency order with a writ of mandamus to the Illinois Supreme Court asking it to command the Department of Corrections not to carry out the clemency order. In the case of Madej, Madigan contended that Ryan exceeded the scope of his constitutional authority. With regard to approximately 30 of the 167 inmates granted clemency in January, the Attorney General argued that the Illinois Constitution limits his power to cases of those convicted and sentenced.

After the Attorney General filed the suit in the Supreme Court, Skadden Arps moved to withdraw as counsel because it had another client who was satisfied with the clemency order. Mr. Madej wanted relief from the com-mutation order. Skadden had a conflict because it could not appear in the Supreme Court and argue to uphold the clemency on behalf of one client and to attack it on behalf of another client. So we were asked to take over the case.

Mr. Madej now enjoys formidable legal firepower: Mike Feagley, Mark Ter Molen, John Touhy, Marc Kadish, and Sean Dailey. We appeared before both Judge Coar and the Presiding Judge of the Criminal Division, Paul Biebel, asking that Mr. Madej be resentenced. Judge Coar denied the motion until such time as the Illinois Supreme Court acts. Judge Biebel was precluded from conducting a sentencing hearing when the Illinois Supreme Court entered a stay of all the death penalty cases involved in the mandamus action.

We did not file any briefs on behalf of Mr. Madej in the Supreme Court because of the uniqueness of his position. Although we agreed with the state’s position that Mr. Madej should be resentenced, we did not agree with their reasoning. We believed the brief filed on behalf of the other "unsentenced" petitioners was correct. To our knowledge, all the other unsentenced prisoners received a com-mutation order setting natural life as the maximum sentence they could receive. We believe Mr. Madej was the only prisoner who received a commutation to natural life. This argument can only be developed before a trial court.

The Supreme Court heard oral arguments on the cases on September 16, and has not yet ruled.

The State is no longer seeking the death penalty in the case of our client, Samuel Lupo, Jr., who beat to death his live-in girlfriend (a Chicago police officer) during a heated argument in 2000. The State’s reasons for its decision aren’t entirely clear. The trial itself is expected to start soon. Partners Sheila Finnegan and Craig Woods and Marc Kadish are leading the defense, which includes associates Dorressia Hutton, Zachary Barnett, and paralegal Julie O’Keefe.

The case of Deryl Wayne Madison—who narrowly escaped execution last year when we won the right to habeas corpus review of his death penalty conviction—stands to benefit from a new case before the U.S. Supreme Court, for which our new Houston office appellate practice has written an amicus brief.

Our argument in the Madison case was based on the U.S. Supreme Court’s Penry cases, which twice overturned a condemned prisoner’s death sentence. In those cases, the Court held that the lack of a separate jury interrogatory on mitigation meant that the jury did not have a sufficient opportunity to consider and "give effect to" mitigating evidence. This rule was expected to be followed throughout the United States.

The Fifth U.S. Circuit in Texas, however, has interpreted the Penry standards very narrowly—more narrowly than most defense lawyers believe is valid. In Texas alone, the fate of 40 death row inmates might be determined by the Fifth Circuit’s narrow interpretation. Brett Busby, newly arrived at the firm and a former clerk for Justices Bryon White and John Paul Stevens, worked with other Houston office attorneys to prepare an amicus brief on behalf of the Harris County Criminal Lawyers Association and the Texas Criminal Lawyer Association in the case of Robertson v. Cockrell. The brief argues that the Fifth Circuit’s narrow interpretation has multiple flaws, including: it impermissibly confines Penry only to cases involving mental retardation; it does not allow the jury to give effect to all mitigating evidence; it introduces an impermissible harmlessness inquiry for Penry-type errors; and it allows the court to usurp the jury’s individualized sentencing determination.

A decision favoring our position can only help our Madison case, which has figured in a larger appellate trend focusing on the adequacy of jury instructions at the sentencing stage.

Copyright © 2007, Mayer, Brown, Rowe & Maw LLP. and/or Mayer Brown International LLP. This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Mayer Brown is a combination of two limited liability partnerships: one named Mayer Brown LLP, established in Illinois, USA; and one named Mayer Brown International LLP, incorporated in England.