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Witnesses all agree repealing death penalty is a must

fili@samoanews.com

Public Defender Ruth Risch-Fuatagavi describes the local death penalty statute as unconstitutional because it's “cruel and unusual punishment” and she “strongly supports” repealing the statute, which is being proposed by Gov. Togiola Tulafono.

With such a small island community, it's difficult to find "a fair and impartial” jury to hear such a case, if prosecutors move to impose capital punishment, which will be very costly to defend, she said.

Risch-Fuatagavi, along with Attorney General Fepuleai A. Ripley Jr., Deputy Attorney General for criminal division Mitzie Jessop and American Samoa Bar Association president Marcellus Talaimalo Uiagalelei testified yesterday before the House Legal Affairs Committee on the bill to repeal the death penalty, which has been in the law book for years.

Uiagalelei, who is also in private practice, was the first to testify, telling the committee that he only received the summons on Monday, while this particular issue has not been discussed by the association and its members, and therefore he could not testify as president of the bar.

House Vice Speaker Fa’afetai Iaulualo requested for the committee’s record, an official written statement from ASBA on this matter to assist the House in making their final decision on the proposal.

Uiagalelei was given the chance to testify as a local attorney and a resident of the territory and he told the committee that he believes a change to the law is long overdue, pointing out that American Samoa is a Christian nation.

He recalled during his time as an assistant attorney general several years ago when the Attorney General’s Office discussed the death penalty in the government’s case against Richard Majhor , who was convicted by a six-member jury in early 2006 for first-degree murder in connection with the death of 23-year-old Wyatt Bowles Jr., in February 2003. He was also convicted of felonious restraint, tampering with physical evidence and first-degree property damage.

However, the AG’s Office opted not to proceed with the move in court after the defense planned to proceed with the protection of the defendant’s constitutional rights, he said.

Uiagalelei, who is currently serving as temporary Independent Prosecutor, recalled for the committee that the last time a death penalty case was carried out in American Samoa was in the late 1930s during the U.S. Naval administration, and since then courts in the U.S. have moved to protect the constitutional rights of the accused.

He said changes to the current death penalty law “are appropriate”, adding that another issue to be addressed under the current statute is the cost involved in defending and prosecuting capital cases.

Risch-Fuatagavi said she “strongly supports repealing the death penalty” statute and noted that there are several reasons for this. Among them, she said the death penalty “is not a deterrence tool” and the death penalty is “vengeance” and not justice.

She stated that the current statute is “unconstitutional” because it is cruel and unusual punishment. Another issue related to the U.S. Constitution, is that a jury is composed of a 12-member panel while in American Samoa, there are only six jurors to decide a capital case.

Furthermore, it's always difficult “to find a fair and impartial jury” on an isolated island with a small community such as American Samoa, Risch-Fuatagavi said, noting that notorious cases are highly published in the news media and on the internet and even before a trial, a jury is already influenced by the publicity.

She also reminded lawmakers there is no method of carrying out the death penalty and there will be “enormous costs” to implementing such a penalty. She pointed out that if a lethal injection is used, “you need to find a doctor” who is willing to carry out the injection.

Risch-Fuatagavi again shared with lawmakers that it costs the defense between $6 and $10 million to properly defend a capital case, which goes through various appeal phases. She said this does not include costs for prosecuting such a case. (She first shared this information during the Fono joint budget hearings).

Fepuleai said he supports the intent of the bill, and that he believes the changes are good. For the executive branch, he said enforcement of current laws can be done, but implementing this particular statute will be difficult and he echoed the  testimony of the Public Defender dealing with the high costs involved.

He also told the committee that he just received a copy of the bill Tuesday and there wasn’t sufficient time to discuss it with others in his office for their reaction. He then referred to Jessop, who has been handling the government’s criminal cases, including that of Siaumau Siaumau Jr., accused in the 2010 shooting of a police lieutenant.

Jessop said capital cases are very difficult to prosecute and echoed statements by her boss and Risch-Fuatagavi of the high costs involved in such a case going to trial, and making sure that the constitutional rights of the accused are not infringed upon.

Procedurally, she said, if such a person is found guilty during trial, then comes the sentencing phase, which is a different trial all together. “It is very difficult” she said, adding that prosecutor and the government will be faced with another problem, in that there is no method to carry out the death penalty if there is a guilty verdict. She said in jurisdictions where the death penalty exists, it's “costly to implement” such a punishment.

She also recalled that the last time a death penalty was carried out in the territory was in the 1930s and the punishment was hanging. “And to quote the governor — we’re a Christian nation.”

The committee is to decide soon on whether to move the bill to the floor for a vote.



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