Mazel tov: Thoughts on my freedom to marry

By Barb Feige, Deputy Director, ACLU-PA

Dawn Plummer and Diana Polson, two of our clients in Whitewood v. Corbett

Dawn Plummer and Diana Polson, two of our clients in Whitewood v. Corbett

So, I got married last weekend. It was a small wedding, performed in accordance with my observant Jewish faith and practice as well as in accordance with the law and regulations of the Commonwealth of Pennsylvania. And everyone had a lovely time, including me and my new husband, whose name is Sanford, but who is known as Sandy.

As we ran the errands and got all the required paperwork in order in the weeks leading up to the wedding, I couldn’t help but think about other couples who would like to get married, but can’t… like those who are a part of our ACLU-PA lawsuit to rid the state of its Defense of Marriage Act. Two weeks ago, as I waited in line to apply for and then a week ago when picking up our marriage license, I thought about those women whose loves may have the same name as my love, but who happen to be female Sandy’s. They can’t sit in a stuffy hallway in the Allegheny County Marriage License Bureau, smiling because you just can’t help it, and realizing how “official” everything is about to become. They and my gay men friends- couples who have been together for 20 and 30 years, and who have warned Sandy that he better treat me right – cannot know the tingle of saying for the first time, “This is my husband” or “This is my wife”, without anyone casting a sidelong glance.

Sandy and I are not exactly a young couple and we are combining two complete households, so we had no desire or need to register for gifts. Instead we thanked friends and family for the gift of their love and support and asked that if they wished to do something to honor and celebrate our marriage, that they make a donation to one of six specified organizations (including the ACLU-PA, of course). We received an acknowledgment from one of the organizations a few days ago—it was addressed to “Ms. Feige and Ms. R_______”. Obviously the Western PA Humane Society had no trouble acknowledging the marriage of what they thought to be two women!

As Jews, we break a glass at the conclusion of the ceremony as a reminder that not all is well and peaceful and joyful in the world and that our job is to make the world better – tikkun olam. I was happy and joyful on my wedding day but was reminded that not everyone can have that same joy and I am more committed than ever to doing what I can—as an individual and as an ACLU-PA staff member – to bring about the freedom to marry for all Pennsylvanians.

"A grave miscarriage of justice"

Last week, after 21 years on Pennsylvania’s death row, James Dennis of Philadelphia finally had his moment of justice. Federal district court Judge Anita Brody ruled that the 1992 conviction of Dennis for the murder of Chedell Ray Williams was “a grave miscarriage of justice,” citing highly questionable eyewitness identification, evidence that was withheld from the defense by the prosecution, and ineffective assistance of defense counsel. 

Judge Brody went so far as to say that “in all probability he did not commit” this crime.

In 1991, Ms. Williams was killed when she was robbed for her earrings by two men. Prosecutors presented no physical evidence and never recovered the stolen earrings. Dennis was convicted and sentenced to death on the basis of three eyewitnesses.

But half of the witnesses to the crime described someone who was taller and heavier than Dennis and didn’t pick Dennis from a photo lineup. Even those three who did pick him and testified initially identified him with hesitation. Ms. Williams’ companion that day described the perpetrators as people she recognized from her high school, which Dennis did not attend. And a witness who could have confirmed Dennis’s alibi that he was on a bus miles away from the shooting gave the incorrect time of day that she saw him, an error of which the prosecution was aware.

The Philadelphia District Attorney’s office withheld this critical evidence from Dennis’s defense counsel. Meanwhile, his trial attorney never interviewed a single witness.

Judge Brody vacated Dennis’s death sentence and conviction and ordered a new trial within six months. Otherwise, Dennis must go free, according to the ruling.

Philadelphia District Attorney Seth Williams has yet to announce his next move, but in a statement reminiscent of his predecessor, Lynne Abraham, he claimed that Dennis’s appeals team is lying. Meet the new boss, same as the old boss.

This case should shock the senses. The commonwealth of Pennsylvania sought to execute a man under these highly questionable circumstances. Governor Corbett even signed a death warrant for Dennis in 2011, which was vacated by the federal court.

While those of us who work regularly on this issue- I’ve been doing it for 13 years- don’t really lose the outrage factor when we hear about a case like this, we are certainly not surprised by the circumstances that created it. Mistaken eyewitness identification is the number one reason why innocent people are convicted of crimes. According to the Innocence Project, 75 percent of people who have been exonerated by DNA testing were convicted by eyewitness identification.

Regrettably, official misconduct by public officials too often plays a role in wrongful convictions. While the Innocence Project does not quantify how often prosecutorial misconduct occurs, it notes, “DNA exonerations have exposed official misconduct at every level and stage of a criminal investigation.”

Finally, the commonwealth’s broken indigent defense system regularly leads to breakdowns in the criminal justice system. More than 200 death sentences have been vacated in Pennsylvania since capital punishment was reinstated in 1978, and a majority of those involved ineffective assistance of defense counsel.

The confluence of these missteps in this case led to the conviction of and a death sentence for a man that a federal judge now says is likely innocent.

The death penalty in Pennsylvania is a failed government program. Jimmy Dennis’s day in the sun has finally come. And the day of reckoning for capital punishment should not be far behind.

Cross-posted at Pennsylvanians for Alternatives to the Death Penalty

Voter ID Trial Day 12: Closing Arguments

By Sara Mullen, Associate Director, ACLU of Pennsylvania

Today was the twelfth and final day of the voter ID trial. In front of a full courtroom, which included Secretary of State Carol Aichele, attorneys for both sides presented their final arguments to Judge McGinley.

Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia (PILCOP), argued for the petitioners. The law, she said, unreasonably burdens the cherished right to vote. Voting shouldn’t be a test of whether people are willing to go to PennDOT multiple times or endure immense physical pain to get an ID.  Pennsylvania’s constitution, unlike the U.S. Constitution, specifically states that “no power… shall at any time interfere to prevent the free exercise of the right to suffrage.”

Ms. Clarke walked the court through the various figures for people lacking PennDOT-issued ID, including testimony from Rebecca Oyler, until recently an official with the Department of State, who estimated 4-5% of registered voters (or 320,000-400,00 individuals) lack ID, to Secretary Aichele’s statement at a recent legislative hearing that 3.5% of Philadelphia voters who voted in November 2012 lacked ID (if applied statewide, that would be 190,000), to petitioner’s expert Dr. Bernard Siskin’s estimate of 511,000 registered voters who lack ID. No matter who you ask, it is clear that at least a hundred thousand if not hundreds of thousands of registered voters are at risk of disenfranchisement.

Throughout her argument Ms. Clarke wove in stories of the real voters who would be disenfranchised if the voter ID law is allowed to go into effect. Voters like Marian Baker, an elderly Berks County woman who wanted to obtain a valid ID after she learned about the law. The last time she had renewed her ID she had to stand in line for four hours at PennDOT, but a leg injury prevented her from doing so again. She called PennDOT to explain her situation and asked for an accommodation, including obtaining an ID through mail, but was told she would have to wait “just like everybody else.” Unaware that the injunction blocking enforcement of the law had been extended to the May 2013 primary, she did not vote in that election, mistakenly believing she did not have the necessary ID.

he commonwealth has argued that thanks to the “streamlined” process for obtaining a Department of State (DOS) ID at one of the 71 PennDOT locations around the state, voters can easily obtain the necessary ID for voting, said Ms. Clarke. But the Department of State’s own “exceptions spreadsheet” shows that hundreds of voters who applied for the DOS ID left PennDOT empty-handed, and even using the commonwealth’s figures (a major point of dispute during the trial), dozens of registered voters who applied for the ID before the November 2012 election either received the ID long after the election or never received it at all. If the voter ID law had been in effect, these legally registered voters would have been disenfranchised.

The commonwealth also failed to educate the public about the DOS ID. In its $4 million ad campaign, the Department of State chose not to include information about the existence of this “easily accessible” ID, nor how or where to obtain it. When asked about this oversight, Deputy Secretary for External Affairs and Elections Shannon Royer said they did not want to confuse voters by “talking about an ID most people had never heard of.”  Kurt Myers of PennDOT spoke of a “shared responsibility” that voters had to know what kind of ID they needed and where to obtain it, but if the information isn’t provided, “how can people take that responsibility?” Ms. Clarke asked.

For those unable to obtain an ID, the law provides no safety net, said Ms. Clarke. Unlike some other states with voter ID laws, the Pennsylvania version does not allow a voter who shows up at the polls without an ID to sign an affidavit affirming his or her identity. Pennsylvania also lacks another critical safety net other states have – no-excuse absentee voting.

Alicia Hickok, an attorney with Drinker Biddle Reath, argued for the commonwealth. She said that state employees worked “tirelessly and diligently” to help voters and took their responsibilities seriously. The voter ID law was to protect the public good – not the good of individuals or private interests. The Department of Aging has been reaching out to seniors, the age group most of the petitioners’ witnesses fall in to, to help them, she said.

Ms. Hickok disputed that large numbers of people lack acceptable ID, saying that petitioners’ expert played “fast and loose” with the data, and pointed to the fact that college students can use their student IDs if they have expiration dates and that those in nursing homes and personal care facilities can use an ID printed by that facility. In her rebuttal, Ms, Clarke noted that many colleges still do not issue voter ID-compliant IDs, and two Department of State officials admitted they do not track which nursing homes and personal care facilities offer their residents IDs and therefore did not know how many of residents were actually able to obtain an ID.

Ms. Hickok’s main argument was that the legislature was allowed to “regulate the franchise,” and that the voter ID merely regulates the election process – it does not “deny the franchise.” Requiring voters to show ID promotes integrity of the election. She cited Crawford v. Marion County Board of Elections, a 2008 case out of Indiana, in which the U.S. Supreme Court found that Indiana’s voter ID law was constitutional.

In her rebuttal, Ms. Clarke noted that the challenge to Pennsylvania’s voter ID law differs in several critical ways, including the fact that petitioners brought their suit under the Pennsylvania constitution and not the U.S. Constitution. In the Indiana case, petitioners did not provide testimony from a single witness who would be disenfranchised – in stark contrast to the Pennsylvania case, in which numerous witnesses testified.

When the fundamental right to vote is burdened, said Ms. Clarke, we have to weigh that against the justification. In this case, the commonwealth has not argued that there is fraud. Instead, they say it is about the “integrity of the election.” Yet the Department of State’s top career official overseeing elections, Jonathan Marks, testified that he was confident of the integrity of Pennsylvania’s elections.

In the 16 months since the law was initially passed, despite numerous tweaks and attempts to improve the system, the state has still not been able to show that no one will be disenfranchised under the voter ID law. “It is time to put an end to this and enjoin this law,” Ms. Clarke concluded.

During her closing arguments, Ms. Hickok did agree to extend the preliminary injunction blocking enforcement of the law through the November 2013 election. Petitioners are asking that the injunction continue until the case has been completely resolved. They are also asking that the “soft roll-out” aspect of the injunction, in which voters are asked for but not required to show ID, be eliminated going forward.

Following the two sides’ closing arguments, the judge announced that the court was recessed and left. For several minutes, spectators and attorneys looked around in confusion, not sure if court would be coming back into session. Several minutes later, the bailiff stuck his head out of the door to judge’s chamber and called out, “Adjourned!” With that, the voter ID trial finally came to a close.