PRETRIAL MOTION ON DEATH PENALTY FOR SPIES IS REJECTED

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000605540013-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 22, 2016
• Document Release Date: May 8, 2012
• Sequence Number: 13
• Publication Date: July 18, 1985
• Content Type: OPEN SOURCE

Declassified in Part - Sanitized Copy Approved for Release 2012/05/08: CIA-RDP90-00965R000605540013-1
ARTICLE A?prAlro
WASHINGTON TIMES
18 July 1985
Pretrial motion on death
for spies is rejected
By Ed Rogers
THE WASHINGTON TIMES
A federal. judge who will preside
over a Navy spy trial in Norfolk has
rejected a motion to find the death
penalty constitutional in peacetime
espionage cases.
Retired Lt. Cmdr. Arthur James
Walker, 50, goes on trial on Aug. 5 on
charges of violating, a federal espi-
onage law that includes a death pen-
alty provision that is widely believed
to have been voided by a 1972
Supreme Court ruling.
The Washington Legal Founda-
tion, a 200,000-member public inter-
est group, and eight congressmen
urged U.S. District Judge J. Calvitt
Clarke Jr. to set the record straight
and rule that Mr. Walker could be
sentenced to death if found guilty.
The Supreme Court did not void
the death penalty for peacetime
espionage, as widely believed, in
overturning "arbitrary" state death
statutes, the group contended.
However, Judge Clarke ruled that
its brief was inadmissible.
"The court is.of the opinion that
competent counsel represent the
government and the defendant and
that they are fully capable of repre-
senting the best interests of the pub-
lic and the defendant," Judge Clarke
said.
The foundation and the same con-
gressmen had filed a similar motion
in the case of John Walker Jr., 47,
brother of Arthur Walker, and John
Walker's son Michael, 22, who face
trial next October on espionage
charges in Baltimore.
U.S. District Judge Alexander
Harvey 11 has accepted their brief in
that case but has not ruled on the
merits of its arguments in behalf of
the death penalty in peacetime espi-
onage.cases.
Paul D. Kamenar, the foundation's
executive legal director, said he is
considering filing a similar motion
in the case of Jerry Whitworth, 45,
the fourth defendant in the Walker
spy-ring case, who faces trial in San
Francisco.
The foundation also is consider-
ing similarfilings- in the cases of.
Sharon cranage, a former CIA
clerk m Ghana, and Michael Sous-
soudis, a Ghanaian national, who
atrial in Alexandria, Mr.
Kamenar said.
We are the only public interest
group that regularly battles the
ACLU (American Civil Liberties
Union) and the NAACP I National
Association for the Advancement of
Colored People) on death penalty
issues:' he said. "Consequently, we
felt it .was incumbent upon us to
make a legal argument that no one
else has made in these cases:'
The foundation said in its brief
that it "strongly believes that capital
punishment serves the valid princi-
ples of punishment, retribution and
deterrence."
"The provision is still on. the
books, but there has been an errone-
ous. belief in the legal community
that a 1972 Supreme Court decision
struck down all death penalty laws,
but it did not do that," Mr. Kamenar
said.
The Supreme Court, in ruling on
three cases captioned Furman vs.
Georgia, held. 5-4, that "the death
penalty in these cases constitutes
cruel and unusual punishment in
violation of the Eighth and 14th
Amendments:'
The court's opinion "makes it
clear that only those cases before
the court were being addressed:' the
brief says. .
The Supreme Court was con-
cerned about the arbitrary imposi-
tion of the death penalty on racial or
other grounds in murder or rape
cases - a concern that is not likely
to apply to a spy case - the brief
says.
The last time the death penalty
was imposed in the United States for
espionage was in 1952 when Julius
and Ethel Rosenberg were executed
for passing secrets about the atomic
bomb to the Soviet Union.
The foundation. maintains that
absence of the death penalty in espi-
onage cases may be responsible for
the increase in the number of
arrests on spying charges.
From 1965 to 1972, no Americans
were charged with espionage, but 38
people have been arrested since
then, Mr. Kamenar said.
The death penalty issue arose in
San Francisco last year in the case
of James D. Harper, who was
accused of selling military defense
secrets to the Soviets. A federal dis-
trict judge ruled the death penalty
was available, but he was overruled
by the the 9th U.S. Circuit Court of.
Appeals.
This ruling raises difficulties in
filing a death penalty motion in the
Whitworth case in San Francisco
because the trial. judge would be
bound by the appellate decision, Mr.
Kamenar said.
Rather than filing the founda-
tion's standard.motion, Mr. Kamenar
said, he may try to persuade the U.S.
attorney in San Francisco to raise
the issue. The government could
then appeal an adverse ruling to the
,Supreme Court. .
However, the Justice Department
took the position in the Harper case
that the death penalty provision in
the espionage statute was unconsti-
tutional.
Mr. Kamenar said Judge Clarke's
decision in Norfolk was a "slap in the
face of the members of Congress
who are pleading with the court to
uphold the law."
"We are disappointed that the
court is afraid or reluctant to hear
the viewpoint of all legal argu-
ments:" he said.
Tommy Miller, assistant U.S.
attorney, said he would not seek the
death penalty against Arthur
Walker.
"Congress has not passed the pro-
cedures that can be applied to get
the death penalty," he said.
. Brian Donnelly, one of Mr. Walk-
er's two court-appointed attorneys,
said he was upset about the filing 'of
the death penalty brief. "It just con-
tributed to the hysteria:' he said.
Declassified in Part - Sanitized Copy Approved for Release 2012/05/08: CIA-RDP90-00965R000605540013-1