The StandDown Texas Project

More Questions in Ohio's Kevin Keith Case

"New evidence in Crawford Co. murder case should be studied," is th editorial in today's Mansfield News Journal.

The Ohio Supreme Court should look again at the case against Kevin Keith -- not just the legal procedures, but the evidence -- before Keith is put to death for crimes he may not have committed.

Former Crestliner Kevin Keith, 45, is on death row for allegedly spraying a Bucyrus apartment with gunfire and killing 24-year-old Marichell Chatman, her 4-year-old daughter Marchae Chatman and Marchae's aunt Linda Chatman, 39, in February 1994.

Last week, the Ohio Innocence Project raised questions about Keith's guilt based on evidence that was not available to the defense at the time of Keith's trial three months after the murders. Keith has exhausted his regular state and federal appeals, losing his argument of innocence in lower courts. He has now asked the Ohio Supreme Court to consider his claim he was not the shooter.

The Ohio Innocence Project, a nonprofit program run through the University of Cincinnati College of Law, fights to free inmates convicted of crimes they didn't commit. The program relies on DNA technology and other evidence to cast doubt and overturn convictions. The program rejects almost half of the requests for help it receives, and will not advocate for an inmate "unless we really believe they are innocent," says academic director Jenny Carroll.

The Project helped free Clarence Elkins, a Mansfield Correctional Institution inmate, in 2005, six years after the Magnolia-area man was wrongly convicted of raping and murdering his mother-in-law and raping and assaulting a 6-year-old niece.

We don't know if Keith is guilty of the 1994 killings. We do know that some of the evidence now available raises doubt. The time to re-examine the facts of the case is now, before Keith is led to a gurney to receive an injection that will stop his heart.

Earlier coverage of this case is here.

New Lethal Injection Scholarship

Ty Alper's, "The Truth about Physician Participation in Lethal Injection Executions," is at SSRN and soon to be published in the North Carolina Law Review.  Alper is associate director of UC Berkeley Law School's Death Penalty Clinic.  Here's the abstract:

This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states. In short, several of the Justices’ opinions in Baze were premised on the faulty notion that doctors cannot and will not participate in executions. As a result, several Justices appeared to rule out the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy.

This Article seeks to expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As the Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participate in executions. States, however, have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to find willing doctors. They have also exploited the activism of the death penalty abolitionist movement, which has long decried physician participation in executions. Lawyers for death row inmates - many of whom consider themselves abolitionists - have argued in litigation that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol. Abolitionist calls for discipline of medical professionals who participate in such executions directly undermine the credibility of this position, and feed the perception that death penalty lawyers are talking out of both sides of their mouths.

Lower courts now grappling with how to implement Baze should know the truth about physician participation. The requirement that trained medical personnel monitor lethal injection executions to ensure that inmates do not suffer excruciating pain should remain on the table as a plausible remedy. Courts should recognize the discussion in Baze on this issue for what it is: dicta, unaided by the record, and based on unfounded assumptions.

His recent OpEd on the proposed California LI protocol is noted here.  Related articles can be found in the lethal injection and scholarship category indexes.

Most Texas Prisons Lack A/C

That's the title of an AP report carried in today's Austin American-Statesman.  LINK

Only 19 of 112 Texas state prisons are air-conditioned, leaving most of the state's 155,000 prisoners and those who guard them to face the summer heat with fans and primitive air-circulating systems.

Texas Department of Criminal Justice officials say the 19 air-conditioned prisons are generally reserved for inmates who are sick or mentally ill. This year, nine inmates and seven workers have suffered heat-related illnesses.

The prisons have hot-weather procedures that go into effect when the heat index reaches 90 degrees. Work crews get longer breaks and more water and begin shifts earlier.

Temperatures are monitored hourly, said Eileen Kennedy, warden at the Ellis Unit in Huntsville. She said prisoners and guards are schooled in the signs of heat-induced illness.

As many as 15,000 miniature electric fans are sold at prison commissaries systemwide each year for $22 each; loaners are provided to inmates deemed indigent. Hallways, day rooms and dormitory units have fans.

"Texas state inmates use fans to beat the heat," is a slightly different version of the AP report via the Fort Worth Star-Telegram.

State Sen. John Whitmire, chairman of the Senate Criminal Justice Committee, said the heat is "part of the reality of going to prison."

"There are a lot of inconveniences of serving time. There's no question it's hot," the Houston Democrat told the Houston Chronicle. "But it's a matter or prioritizing resources."

Many Texans, he said, would be less than sympathetic to prisoners' heat concerns. Even if Texans were sympathetic, he said, retrofitting prisons for air conditioning is too expensive.

Prisons in hot states like Louisiana and Florida are also go without air conditioning.

The American Civil Liberties Union of Texas said heat cases come to the court only when prison officials knew of and ignored perilous conditions for prisoners.

More News From California's Lethal Injection Public Hearing

Last week's hearing for public comment on the state's proposed lethal injection protocol concuded Tuesday afternoon, but is still making news.  "Morales suffered physical, psychological attack on day of execution, attorneys say," is the title of Scott Smith's report in today's Stockton Record.

The state tortured Michael Angelo Morales in a mock execution three years ago when officials delayed his death sentence but waited hours to tell him, attorneys for the Stockton man argue in a letter critical of California's newly proposed lethal injection procedure.

Holding Morales in a death watch cell awaiting execution caused a level of psychological torment banned by federal and international law, the attorneys say, adding that every jingling key or turned lock struck him with terror.

"Morales simultaneously felt as if he were already dead, while also being wracked with uncertainty that he would be killed," attorneys argue. "Morales was overwhelmed by the traumatic sense of being under psychological and physical attack."

The letter filed on behalf of Morales comes during a renewed public debate over capital punishment in California.

In a first for the state, prison officials took oral comments Tuesday from more than 100 people and received more than 5,000 letters on the state's proposed lethal injection method.

Morales' attorneys, through the courts, forced the state to open up the execution procedure to comment in an ongoing legal battle over the way Morales and other death row inmates should be executed to avoid excessive pain.

His attorneys argue that others should not undergo the same treatment as Morales, who was told his execution would happen just after midnight on Feb. 20, 2006. He ate what he thought would be his last meal and called his parents to say goodbye.

Hours later, prison officials called off the execution because they couldn't meet a court order to ensure a painless death. Yet Morales' attorneys said the delay wasn't communicated to the condemned inmate waiting for guards to come and get him.

"The specter of impending death hung over Morales until 3 p.m. that day - 15 hours after he was first scheduled to die, twelve hours after he was told that his execution had been postponed, and seven hours after the indicated time for the rescheduled execution," Morales' attorney wrote.

And:

The letter submitted on behalf of Morales strings together such notables as Sen. John McCain and Kenneth Starr. Starr, who prosecuted President Bill Clinton, co-authored the letter picking at the execution procedure with Morales' lead attorney, David Senior.

The duo drew on McCain's opposition to torture based on the former prisoner of war's experience in Vietnam. The attorneys quote McCain, who described enduring death threats as "torture, very exquisite torture."

Among their criticisms, Starr and Senior criticize the state's new protocol for lacking contingency plans to inevitable delays. They don't want inmates subjected to mock executions like the one Morales experienced.

News coverage of the hearing is here and here.

Capital Prosecutions in One Louisiana Parish

Today's New Orleans Times-Picayune carries the report, "Surge in death penalty prosecutions slows in Jefferson Parish," written by Paul Purpura.  Here are two excerpts from the lengthy article:

After Louisiana reinstated the death penalty in 1975, Jefferson Parish juries sent 28 people to death row at Angola.

Half of those inmates have been sent there since Jefferson Parish District Attorney Paul Connick Jr. took office in 1997. By the time his first six-year term ended, 10 people were sentenced to death.

But what began as an aggressive pursuit of capital prosecutions has declined in recent years, leading court observers to question whether Connick is shying away from the death penalty or if Jefferson is mirroring a national trend.

It has been five years since a Jefferson Parish jury recommended a death sentence and four years since prosecutors tried a capital case. While suspects have been indicted on capital murder charges in some high-profile homicides, prosecutors later reduced the charges to second-degree murder, which carries a mandatory life sentence.

Now, one person is charged with capital murder in Jefferson Parish, a paltry figure compared to neighboring New Orleans, where 31 people face first-degree murder charges.

While Connick acknowledged that his office is pursuing fewer capital prosecutions, it does not reflect a change in his philosophy.

And:

But observers say Jefferson Parish is in line with a national trend away from capital prosecutions, which have declined 65 percent since 1999, according to the Death Penalty Information Center, a nonprofit organization in Washington.

"This is certainly not a unique response by Paul Connick," said capital punishment opponent Nick Trenticosta of the Center for Equal Justice in New Orleans, which steers death sentence appeals. "It's a response all across America. Offices all over the country are cutting back on the death penalty."

"Executions are down, death sentences are down, capital prosecutions are down," said lawyer Denny Leboeuf of New Orleans, a death penalty opponent who directs the ACLU's John Adams Project in New York.

In Jefferson, prosecutions for second-degree murder are the norm, even as police routinely book suspects with first-degree murder.

"The trend in these numbers, as across the country, reflects the emerging view that life without parole is an incredibly serious punishment and that juries, prosecutors, the public and family members of victims are increasingly preferring the certainty of a life sentence over the confusion and delays, multiple retrials and high error rates that are inherent in capital cases," said Jelpi Picou, executive director of the Capital Appeals Project in New Orleans.

Double Tragedies

That's the title of a new report issued by the National Alliance on Mental Illness, available here.

The news release, "Death Penalty and Mental Illness: Families of Victims Speak Out at National

Convention; 'Double Tragedies' Report Released," is by Susannah Sheffer.

For the first time, families of murder victims have joined with families of persons with mental illness who have been executed to speak out against the death penalty.

Double Tragedies, a report being released today at a special session on the first day of the annual convention of the National Alliance on Mental Illness (NAMI), calls the death penalty "inappropriate and unwarranted" for people with severe mental disorders and "a distraction from problems within the mental health system that contributed or even directly led to tragic violence."

The report calls for treatment and prevention, not execution. It is available online at www./nami.org/doubletragedies.

The U.S. Supreme Court has already ruled the death penalty unconstitutional in cases involving defendants with mental retardation (Atkins v. Virginia, 2002) and juvenile defendants (Roper v. Simmons 2005).

The report, a joint project of NAMI and Murder Victims' Families for Human Rights (MVFHR), is based on extensive interviews with 21 family members from 10 states: California, Florida, Georgia, Illinois, Louisiana, Maine, Massachusetts, North Carolina, Tennessee and Texas.

"Family opposition to the death penalty is grounded in personal tragedy," said MVFHR executive director Renny Cushing. "In the public debate about the death penalty and how to respond in the aftermath of violent crime, these are the voices that need to be heard."

"Most people with mental illness are not violent," said NAMI executive director Mike Fitzpatrick. "When violent tragedies occur they are exceptional -- because something has gone terribly wrong, usually in the mental health care system. Tragedies are compounded and all our families suffer."

The report identifies an "intersection" of family concerns and makes four basic recommendations:

• Ban the death penalty for people with severe mental illnesses.
• Reform the mental health care system to focus on treatment.
• Recognize the needs of families of murder victims through rights to information and participation in criminal or mental health proceedings.
• Families of executed persons also should be recognized as victims and given the assistance due to any victims of traumatic loss.  

Diane Jennings writes, "Families of victims and families of mentally ill offenders release death penalty report," at the Dallas Morning News Crime blog. 

Double Tragedies, a report detailing the impact of capital crimes committed by mentally ill people, is being released by the National Alliance on Mental Illness and Murder Victims' Families for Human Rights. The two organizations launched a campaign last year in San Antonio in opposition to the death penalty for the mentally ill.

One of the Texas cases highlighted in the report is that of Larry Robison of Tarrant County who killed five people several years after being diagnosed as paranoid schizophrenic. His parents, Lois and Ken Robison tried for years to get help for him.

"Everybody said they couldn't help him, because he wasn't violent," Lois Robison told the report's author Susannah Sheffer. "And if he ever got violent, then they would commit him to a mental hospital. And instead they committed him to death row."

Larry Robison was executed in 2000.

Sheffer, said she heard similar stories over and over. "Sometimes these families are perceived as "sort of neglectful and not involved," she says. But "it's not a case of somebody not trying--they tried every conceivable thing and this is what happened."

Related articles are in StandDown's mental illness index.

Art in London

"Face-to-face with death row inmates at London show," is the title of Julie Mollins' Reuters report.

Death row inmates depicted in oil paintings by British artist Claire Phillips, on view in London's South Bank gallery@oxo, have one thing in common.

"All are demonstrably innocent, or very probably innocent," according to Clive Stafford Smith, director of prisoners' rights organization Reprieve, which sponsors the touring five-day "Human Face of Death Row" exhibit on show at Oxo until July 5.

"They are very powerless people who face an incredible distillation of hatred resulting in society wanting them dead."

Among the paintings of three current inmates is Briton Linda Carty, who has been on death row in Texas for eight years for murdering a neighbor. Her case is in the final stage of the appeals process.

The prosecution's case was based on testimony from three people accused of the same murder who, in exchange for statements against Carty, avoided the death penalty, according to Reprieve.

The four-hour visit Phillips had with Carty was held under armed guard.

And:

Phillips, originally from Hammersmith in London, was not permitted to take any painting tools with her when she visited the inmates, so created the portraits from memory and other sources.

The exhibition also includes images of three former death row inmates who were freed after serving prison terms, along with an executioner; a legislator who introduced lethal injection and a foreperson on a jury that convicted and sentenced a man to death who was later found to be innocent.

"All the black people are on death row and all the white people are in positions of authority," Phillips said of her portraits.

"I didn't intend to become a campaigner," she added. "As an artist I wanted to communicate their stories.

"I've achieved putting the stories together. Make your mind up -- is this system the way to go?"

Reprieve founder and lawyer Stafford Smith is also featured in one of the paintings.

Phillips selected him as a subject because she was intrigued by him as someone "who had all the advantages of a public school education and yet had chosen to ignore the attractions of wealth and materialism in order to defend the powerless and vulnerable."

More on the exhibit is here.

The Death Penalty in New Mexico

Albuquerque Journal writer Leslie Linthicum writes "Closing the N.M. Death Penalty Door."  The death penalty has been repealed, but two capital trials may yet take place for crimes committed before the new law took effect.  Linthicum's column appeared in the Thursday edition.  Here's an extended excerpt:

If I'm going to start a diet on Monday morning, you can be sure to find me face-first in the ice cream container on Sunday night. It is the yo-yo dieter's logic that it's a good idea to get all the fattening stuff out of the house — yes, by eating it — before the calorie restriction begins.

The state of New Mexico launched a diet Wednesday, cutting out death sentences for murders from our moral menu. But it's possible we'll sneak in one more binge.

It's one of those situations that make perfect sense and no sense. Let's see how we got here.

Earlier this year, the New Mexico House and then the Senate decided it was time for New Mexico to stop killing people for killing people. The governor mulled it over and ultimately signed the bill that wipes away the death penalty and replaces it with a prison sentence that lasts until the prisoner dies.

Here's where the problem lies. Two murder defendants in New Mexico currently face the death penalty in cases that began before the Legislature acted to repeal the law. Michael Astorga is accused of fatally shooting a Bernalillo County sheriff's deputy during a traffic stop, and William Watson is accused of hiring someone else to kill a Roosevelt County rancher.

The New Mexico Constitution bars state lawmakers from passing laws that are retroactive, so Astorga and Watson can be subject to the death penalty. The Salvadoran gangsters who are accused of shooting up a Denny's in Albuquerque and killing a cook a week before the capital punishment expiration date could also be tried and sentenced under the old law.

Then there are the two men currently on death row in New Mexico who also still face execution. Although Gov. Bill Richardson, who signed the death penalty repeal, says he wouldn't consider commuting their sentences, a future governor could.

One, two, three, four or more executions? That's an awful lot of capital punishment for a state that's sworn off it.

Bernalillo County District Attorney Kari Brandenburg tells me prosecutors really have no choice. Only now that the death penalty has expired, is it replaced with a true life-in-prison sentence? If she or any other prosecutor were to drop the death penalty option for those older cases, the harshest sentence a jury could hand down for a murder would be 30 years in prison, and she doesn't want that to happen.

If a true life-in-prison sentence were available now, Brandenburg says, it might very well change how she thinks about prosecuting Astorga. She says she's never been much of a fan of the death penalty because it doesn't work well as a deterrent to criminals.

Earlier coverage from New Mexico begins here.  Thanks to Jim Ellis for circulating.

California Counties Diverge on Death Penalty

That's the title of Phillip Reece's article in today's Sacramento Bee.  LINK

Murderers are more likely to be sentenced to death in conservative California counties, particularly in the southern part of the state, according to a Bee analysis of recent data from the state attorney general's office.

From 1998 to 2007, prosecutors obtained about one death penalty conviction for every 100 murders statewide, the figures show. In Orange County, the rate was twice as high; in Riverside County, it was three times as high.

At the same time, San Francisco and San Mateo counties haven't sentenced anyone to death in 15 years (with the exception of the Scott Peterson case transferred to San Mateo from Modesto.)

Overall, the five large California counties with the highest rate of registered Republicans sentenced murderers to death almost three times as frequently as the five counties with the lowest rate of Republicans.

There are major exceptions. Largely Republican Placer County hasn't issued the death penalty in 20 years while largely Democratic Alameda County condemns murderers somewhat frequently.

And:

Most murders can be charged as death penalty crimes, said UCLA law professor Stuart Banner, so it often comes down to the preference – and politics – of a district attorney.

"District attorneys are elected," said Banner, author of "The Death Penalty: An American History." "The death penalty is more popular in some counties than in others."

The expense of capital cases also can deter prosecutors in both very small and very large counties, Banner added.

Riverside County District Attorney Rod Pacheco, a former Republican assemblyman, noted that many convictions in the state's figures came or started under his predecessor's watch. His office now spends more time listening to law enforcement, victim's families and even defense attorneys before making a decision about whether to seek the death penalty, he said.

Nonetheless, noted UC Berkeley law professor Elisabeth Semel, Pacheco seems to have continued prosecuting death penalty cases at the same rate as his predecessor.

Pacheco said he did not know whether his approach had shifted the numbers, but noted that his constituency generally is tough on crime, as is he.

"The people here have a very different view of public safety than the people in San Francisco," Pacheco said.

Yesterday's SacBee preview is noted here.

Colb on Melendez-Diaz

At FindLaw.com, regular columnist Sherry Colb writes, "The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms."  Here's the beginning of a must-read for those who want to dig deep into the ruling.

Last week, the U.S. Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts. The Court held that the prosecution may not introduce into evidence a sworn certificate showing the results of forensic analysis (specifically, the fact that a seized substance was cocaine) without triggering the defendant's Sixth Amendment right to confront the witnesses against him. This holding means that if the analyst who certified forensic test results will not appear at trial, then the trial court must exclude the certificate.

Though Justice Scalia's majority opinion expressed great confidence in this result, the dissenting opinion (which reflected the views of four Justices) was equally disdainful of it. The combination of the two exposes a startling lack of consensus among the Justices about the constitutional status of hearsay, a basic feature of interpreting a core protection in the Bill of Rights.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him." Two questions arise from this text: What is involved in being confronted? And, who counts as a "witness against" the defendant? The second question is the one that most occupied the majority's attention in the Court's recent decision.

No one seems to dispute that the category of witnesses that trigger confrontation rights includes, at the very least, the people who testify for the prosecution at a defendant's criminal trial. And for such witnesses, confrontation means availability for cross-examination. Thus, the defendant has a right to cross-examine every prosecution witness who appears at trial. If a witness dies of natural causes after testifying against the defendant, but before being subject to cross-examination, then the judge must (at a minimum) instruct the jury to disregard that witness's testimony. And if the testimony is necessary to prove guilt beyond a reasonable doubt, then the case must be dismissed.

But does anything or anyone else (aside from witnesses who testify for the prosecution at a criminal trial) count as "witnesses against" the defendant for Confrontation Clause purposes? One controversial possibility is that when the prosecution offers hearsay against the defendant, the speakers of such hearsay are always and necessarily "witnesses against" the defendant and must therefore also be subject to cross-examination by the defense, just as they would be if they had appeared as live witnesses.

Earlier coverage of the ruling is here; more at the Scotus Wiki Melendez-Diaz page.

Sacramento Bee Examines Geographic Disparity of California Death Sentences

The SacBee is previewing an article that will be in tomorrow's print edition.  It contains an interactive map examining the geographic disparity of death sentences in the state, at this LINK.

Several factors can affect how often prosecutors obtain death penalty convictions. These include, but are not limited to, how often prosecutors seek the death penalty, law enforcement's murder arrest rates, the makeup of juries and the frequency of particularly heinous killings.

The web version also contains brief interviews with:

Interview with Riverside County District Attorney Rod Pacheco

Has that changed the number of death penalty prosecutions?: Every case is different. I don't know if we've had more or less (death penalty prosecutions) ... The people here have a very different view of public safety than the people in San Francisco.

Interview with ACLU researcher Natasha Minsker.

How much does the political leanings of juries come into this?: I have seen no evidence that political beliefs play a part in this. In Northern California, Alameda County stands out as having the most convictions, and it is one of the most progressive counties in the state. ... (Because the voir dire process weeds out jurors who say they can't impose the death penalty) the juries you end up with in Alameda County are all still pro-death penalty.

More on the California debate begins here.  I'm looking forward to the SacBee's full coverage tomorrow.

Cultural Background Gains Traction as a Legal Defense

That's the title of an article in today's Wall Street Journal written by Amir Efrati.  LINK

The old saw among law enforcement is that ignorance of the law is no defense.

But some think it should be, at least in some circumstances, particularly when immigrants act in ways that seem ordinary in their homeland but are illegal in the U.S. Defense attorneys and even some judges are increasingly pushing the idea that immigrants at times should be able to defend themselves by arguing that their cultural background influenced them.

"Taking a person's cultural background into consideration is no different from judges taking into consideration a defendant's gender, age and mental state," says Alison Dundes Renteln, a political science professor at the University of Southern California.

Critics of the defense say the law should be applied equally to all U.S. citizens and that juries shouldn't be asked to assess immigrants' guilt based on the defendants' own standards. It is wrong for prosecutors "to treat one class of people differently from another class of people just because of their national origin," says Cristina Johnson, deputy district attorney in Monterey County, Calif.

And:

But advocates say they aren't arguing that immigrants who break the law should get a free pass. Rather, they say evidence that defendants acted in accordance with their cultural norms should be included at trial or potentially serve as a mitigating factor during sentencing. Under the right circumstances, they say, some defendants should qualify for plea bargains, or probation rather than prison.

"Cultural issues are arising more frequently in the courts, and judges and lawyers need to be sensitized to recognize them," says Delissa A. Ridgway, a federal judge on the U.S. Court of International Trade who became interested in the topic while training judges and lawyers in other parts of world. She now organizes seminars on the cultural defense.

And:

Culture-based legal defenses aren't new. As a country founded by immigrants, the U.S. has long wrestled with the issues of law versus custom. But such defenses began attracting interest amid the influx of non-European immigrants in recent decades, particularly with a few high-profile cases in the 1980s.

In one, a Japanese woman living in California who discovered her husband had an extramarital affair tried to kill herself and the couple's two children as a way to save face. The children died, but she survived. Based in part on evidence that her acts were part of a traditional Japanese practice now illegal in that country, prosecutors allowed her to plead guilty to manslaughter rather than face murder charges.

State and federal appellate courts have provided little guidance on how lower courts should treat such defenses, and many trial judges continue to be skeptical. As a result, such defenses often don't work. Even the most culturally aware judge is unlikely to be sympathetic to a child beater, regardless of the attitudes about corporal punishment in other countries. Defense attorneys would prefer to try other avenues, such as challenging the legality of the arrest or the evidence.

Sixth Circuit Reinstates Tennessee's Lethal Injection Procedure - UPDATED

AP reports, "Breaking News: TN's death penalty."  It's written by Michael Silence, via the Knoxville News Sentinel.

A federal appeals court has vacated a lower court's ruling that Tennessee's lethal injection process is unconstitutional.

In 2007, the U.S. District Court in Nashville supported a claim by convicted murderer Edward Jerome Harbison that the process violates his Eighth Amendment right because it involves an "unnecessary ... infliction of pain."

The state appealed based on a U.S. Supreme Court decision that upheld Kentucky's lethal injection process, which is similar to Tennessee's. The case did not prevent Tennessee from carrying out another execution earlier this year.

The 6th Circuit on Thursday agreed with the state and vacated the injunction barring the state from executing Harbison, despite the dissension of one judge.

The ruling is here, in Adobe .pdf format. 

The Tennessean has, "Court of Appeals favors Tennessee's lethal injection process."  It's written by AP writer Lucas.

In 2007, the U.S. District Court in Nashville supported a claim by Edward Jerome Harbison, 54, that Tennessee's lethal injection process violates his Eighth Amendment right because it involves an "unnecessary ... infliction of pain." Harbison was convicted in the 1983 beating death of an elderly woman in Chattanooga.

The state appealed the lower court's ruling based on a U.S. Supreme Court decision that upheld Kentucky's lethal injection process, which is similar to Tennessee's. The case did not prevent Tennessee from carrying out another execution earlier this year.

The 6th Circuit on Thursday agreed with the state and vacated the injunction barring the state from executing Harbison, despite the dissension of one judge.
Judge Eric Clay said an "evidentiary hearing" is necessary in light of the Supreme Court decision.

He said by failing to give the district court the chance to consider Tennessee's lethal injection process, the 6th Circuit "effectively usurps the district court's role as fact-finder and decides an issue never presented to the district court: whether there are material differences between Kentucky's and Tennessee's lethal injection protocols."

"As a court of appeals, we are obligated to provide the district court with the first opportunity to receive evidence and rule on this question," Clay wrote. "I therefore respectfully dissent."

Earlier coverage from Tennessee is here; related articles, in the lethal injection category.

Arizona Lethal Injection Procedure Ruled Constitutional

"Execution method of lethal injection approved," is Michael Keifer's report in today's Arizona Republic.

A federal judge Wednesday removed a major obstacle to executions in Arizona, ruling that the state's lethal-injection procedure is similar to one approved by the U.S. Supreme Court.

Executions have been on hold in Arizona since November 2007, when the Arizona Supreme Court postponed the death of convicted murderer Jeffrey Landrigan pending the U.S. Supreme Court's analysis of how inmates were put to death in Kentucky.

The high court's ruling approved the Kentucky protocol, but left the door open for other death-row defendants to question how it was done in their states.

Federal public defenders in Phoenix quickly filed such an appeal in Maricopa County Superior Court on Landrigan's behalf. And they filed a nearly identical suit in federal court on behalf of nine Arizona death-row prisoners who have not yet exhausted their appeals.

The two cases have been simultaneously working their way through the courts with similar arguments and nuances tailored to state and federal law. But the federal case was decided first.

U.S. District Court Judge Neil Wake on Wednesday ruled in favor of the Arizona protocol.

The Superior Court case has yet to be decided, but its outcome likely will be influenced by the federal court decision.

Assistant federal public defender Dale Baich, who oversees both cases, said he will appeal Wake's decision to the 9th U.S. Circuit Court of Appeals.

But Assistant Arizona Attorney General Kent Cattani said he doubted the Appeals Court would overturn the decision, given the state's similarities to the Kentucky protocol.

Related articles are in the lethal injection category index.  Earlier coverage from Arizona is here.

CCA Again Rejects Rodney Reed's Appeal

The Court of Criminal Appeals order is here.

"Reed's death sentence again upheld," is the title of Chuck Lindell's report in today's Austin American-Statesman.

The state's highest criminal court has again rejected death row inmate Rodney Reed's claims that he did not kill Stacey Stites, a 19-year-old who was raped and strangled in Bastrop County in 1996.

Reed's case now is expected to move into the federal court system for his next — and final — round of appeals before his execution can be scheduled.

Reed's latest appeal built on allegations, contained in earlier court petitions, that Stites was murdered by her then-fiancé, Jimmy Fennell, a former Georgetown and Giddings police officer who was later sentenced to 10 years in prison for kidnapping and improper sexual activity with a woman in his custody.

But the Texas Court of Criminal Appeals ruled Wednesday that the latest allegations against Fennell did not change the case against Reed.

"The allegations of Fennell's misconduct and domestic violence do not exonerate (Reed)," the court ruled in an unanimous, unsigned opinion. "The totality of the evidence before us still supports a guilty verdict."

Reed's latest appeal included information compiled by Georgetown police during their investigation into an October 2007 incident when Fennell responded to a domestic disturbance call, drove the woman to a secluded area in his patrol car and sexually assaulted her.

According to police reports detailed in Reed's appeal, Fennell also forced a woman he met during a Georgetown traffic stop in July 2007 to have sex with him, abused his now ex-wife and stalked a Giddings woman in 1997 while working for the Giddings Police Department.

Reed's lawyers argued that the new information, coupled with earlier allegations of Fennell's misconduct, points to Fennell as Stites' killer. They also claim no jury would have convicted Reed had it known about Fennell's abusive history with women.

Reed's appeal — his sixth petition for a writ of habeas corpus since his May 1998 conviction — also included a vague account of a woman who said she may have seen Reed and Stites together before the killing. Reed has asserted that his DNA was found on Stites' body because the two had a secret sexual relationship in the weeks before her death.

The Houston Chronicle carries the AP filing by Michael Graczyk, "Condemned inmate Rodney Reed loses appeal again."

Texas death row inmate Rodney Reed lost another appeal before the Texas Court of Criminal Appeals, which on Wednesdsay rejected his claims that new evidence pointed to another man as the killer of a 19-year-old woman in Bastrop County 13 years ago.

In a sixth petition to the state's highest criminal appeals court, Reed's lawyers argued they had evidence suggesting the boyfriend of Stacey Stites as the person who abducted, raped and murdered her.

Stites' fiance, Jimmy Fennell, is a former police officer who later was jailed for abducting and having improper sexual activity with a woman in his custody.

The court, however, said the information submitted by Reed failed to show innocence and failed to show that prosecutors withheld it.

"The allegations of Fennell's misconduct and domestic violence do not exonerate (Reed)," the court said in a brief decision. "The totality of the evidence before us still supports a guilty verdict."

The latest challenge cited Fennell's misconduct as he worked as a police officer in Georgetown and earlier in Giddings. It also pointed to a report of domestic violence from Fennell's ex-wife and an affidavit of a "possible sighting of the victim and (Reed) together," according to the court.

Reed, 41, has insisted he and Stites had a continuing secret affair even though Stites was engaged to soon marry Fennell when her body was found along a rural road after she failed to show up for work at a supermarket in Bastrop, southeast of Austin.

Reed is black and Stites was white and Reed's lawyers have described the racial aspects of the case as explosive. The also accused prosecutors of improperly withholding evidence. Prosecutors denied any wrongdoing and disputed the claims of a secret relationship between the victim and Reed.

Earlier coverage is in the Rodney Reed category index.

North Carolina Racial Justice Act Continues to Advance

"Bill on death-penalty disparities advances," is James Romoser's report in today's Winston-Salem Journal.  Here's an extended excerpt:

A bill aimed at reducing racial disparities in the imposition of the death penalty advanced another step in the N.C. General Assembly yesterday.

Supporters of the bill, which is known as the "North Carolina Racial Justice Act," say that it would combat racial bias by giving defendants and death-row inmates clear legal procedures to argue that race played a significant role in decisions to impose the death penalty.

But the bill is controversial because of the way it would allow defendants and inmates to use statistics to try to show racial bias.

The bill would allow them to use data from other death-penalty trials within the same county, prosecutorial district, judicial division or the state at large. For instance, a black defendant might argue to a judge that, statistically, blacks are much more likely than whites to receive the death penalty in one or more of those jurisdictions. The statistical evidence alone would be enough for a judge to throw out the death penalty for that defendant -- regardless of the particular facts of the defendant's case.

Supporters say that the bill is necessary to overcome a legacy of systemic bias in the criminal-justice system that has been especially pronounced in the realm of capital punishment. Murders involving black defendants, or white victims, or both, are more likely to result in death sentences.

The bill's sponsors also said that defendants would have to meet high standards before a judge would rule that race played a significant role in decisions to impose the death penalty.

"I just want to re-emphasize that the burden of proof in this act is with the defendant," said state Rep. Earline Parmon, D-Forsyth. She and Rep. Larry Womble, also D-Forsyth, are two of the bill's biggest advocates.

"This is a bill for fair sentencing," Parmon added. "And it's been around a long time, and it's time for us to move forward on it."

The legislature is doing just that, but the bill is far from a sure bet to pass into law. Yesterday, the bill was approved by a key judiciary committee in the N.C. House. The committee's vote was 7-6.

It must go through one more committee before coming up in the full House, where Republicans plan to oppose it aggressively, and some conservative Democrats may be unenthusiastic about the bill.

"I think it will be close," said Rep. Paul "Skip" Stam, R-Wake and the House minority leader. "We will fight it hard."

Another test for the bill is in the N.C. Senate. That chamber previously approved a version of it, but the bill has undergone significant changes since then that may make it less palatable to some senators.

The News & Observer carries a brief item, "Death penalty bill moves."

The Racial Justice Act, which would allow challenges to death sentences based on race, narrowly cleared a House committee Tuesday.

The act would require defendants to prove that race played a "significant factor" in a prosecutor's decision to seek the death penalty, or in a jury vote to impose the sentence. It allows the use of statistics to show, among other things, that the death sentence was sought or imposed more frequently for people of one race versus others.

A successful challenge would keep a prosecutor from seeking the death penalty, or would vacate a death sentence in exchange for life in prison without parole.

Opponents, including Rep. Paul Stam, an Apex Republican, argued that the act could lead to quotas on the number of inmates of one race who could be sentenced to death.

But supporters, including Sen. Floyd McKissick, a Democrat from Durham, said the bill could create fairness.

Earlier coverage of the legislation begins here.

NYT Examines the Yogurt Shop Murders

"New Evidence Opens Old Wound in 1991 Slaying of 4 Girls," is the title of James McKinley's report in today's New York Times.

Seventeen years have come and gone. The yogurt shop where four teenage girls were raped and murdered has been replaced with a payday loan store. No sign remains of the fire the killers set to cover their tracks; no plaque marks the place where the girls died.

Yet this city has been unable to put the horrific crime to rest. Last week, two men who were awaiting retrial for the murders walked out of jail on bond after new evidence surfaced suggesting that someone else might have taken part in the attack.

The men, Michael Scott, 35, and Robert Springsteen, 34, had been convicted in one of the slayings years ago, but an appeals court overturned the verdict, ruling that the men’s confessions were improperly used against each other.

Now the new evidence — an unknown man’s DNA found on at least one of the girls — has thrown those confessions into doubt. The district attorney’s office has tested scores of people, hunting for the mystery person.

Defense lawyers argue that the DNA belongs to the true killer and proves their contention that the confessions of the convicted men were a coerced mass of falsehoods. But the authorities say investigators may have contaminated the evidence.

The events have raised two possibilities deeply troubling to many in this city, which is home to both the state Capitol and the University of Texas. One is that two innocent men have served nine years in prison for a crime they did not commit. The other is that there might be another killer out there.

“We wanted this case to be closed, but there is this gnawing sense that perhaps it wasn’t,” said Thomas Spencer, the head of an association of ministers in Austin. “We wish we had more certainty.”

Some Austin residents are angry at the turn of events.

“We’re stressed because they let these two guys go,” said Terry Ayers, 61, a cousin of one of the slain girls. “They totally botched this whole case.”

Earlier coverage begins here.  Our independent alt-weekly, the Austin Chronicle has an extensive archive of its earlier coverage.

Commentary on the California Hearing

Los Angeles Times columnist Tim Rutten writes, "California death row's dicey math."

When Tuesday's hearings in Sacramento on proposed changes in California's method of executing convicted murderers veered into a discussion of why solutions to the state's budget crisis ought to include the abolition of capital punishment, it was another example of how divided our attitude on this issue remains.

In fact, if you look back through this vexed issue's history here, what emerges clearly is a deep ambivalence -- a popular unwillingness to renounce the death penalty as a symbol of the state's ultimate sanction against criminality, and a persistent current of reluctance to see it imposed too frequently. It's that division that sets California apart from most other capital punishment states.

And:

Though 60% of Californians continue to support capital punishment, few people are calling for eliminating procedural safeguards and speeding the rate of execution. As they have historically, the people of this state appear to support the idea of the death penalty, but to be dubious about its application.

No doubt the work of attorneys Barry Scheck and Peter Neufeld and their New York-based Innocence Project, which has relied on DNA testing to exonerate wrongly convicted men and women across the country, has had an impact on peoples' attitudes toward the death penalty. Americans will quarrel to the death over points of principle, but science is science. And what the application of genetic science to the criminal justice system has made clear is that what we hopefully call "due process" is too often a crap shoot.

Given California's deep ambivalence about capital punishment, the arguments being made by former Los Angeles District Atty. and state Atty. Gen. John Van de Kamp -- a longtime capital punishment supporter -- and others that death row simply has become too expensive to maintain have a new resonance. Van de Kamp and Gov. Arnold Schwarzenegger's former state corrections chief, Jeanne Woodford, argue that cash-strapped California will spend as much as $1 billion to keep the death penalty on the books over the next five years.

Assuming the state eventually comes up with an execution protocol that passes judicial muster, that's a lot to spend for the deaths of fewer than five convicts, who just as easily could be sentenced to life without parole.

Natasha Minsker, death penalty policy director for the ACLU of Northern California, posts, "Day of Action to End the Death Penalty," at Daily Kos.

The  hearing comes after three years of legal challenges and three years  without executions in California. If the rules are adopted and more  pending legal challenges are resolved quickly, executions could resume  as soon as 2010. But only four people have exhausted all of their  appeals and would even be eligible for execution. Meanwhile in the last  three years, 16 people on death row have died of natural causes or  suicide. California has only managed to carry out 13 executions since  the death penalty was reinstated in 1977.

Yet despite having no official method of execution for the last three years, California has wasted hundreds of millions of dollars on the death penalty system, and stands poised to waste another $1 billion over the next five years. So after voicing their opinion on executions today, concerned taxpayers will also have their chance to voice their opinion on wasteful  spending, calling on the Governor to end the death penalty altogether  and save the state millions.

Coincidentally, it was exactly one year ago that Californians got the first comprehensive report on exactly how dysfunctional and expensive the death penalty system already is. On June 30, 2008 the bipartisan  California Commission on the Fair Administration of Justice released  their report on the death penalty, finding that it costs taxpayers $137  million each year, yet remains riddled with serious flaws, including a  real risk of wrongful execution and an appeals process that causes  suffering to murder victim survivors. On the other hand, the Commission  found that the alternative of permanent imprisonment for all those  currently on death row would save $125 million each year, while still  protecting the public. Now, one year later, the system is just as  dysfunctional and even more expensive.

Earlier coverage, here.

News Coverage of the California Hearing

"Opposition to death penalty in California voiced at hearing on lethal injection," is the title of Carol Williams' report in today's Los Angeles Times.

Corrections officials heard overwhelming condemnation of proposed new lethal injection procedures Tuesday at the first-ever public hearing on execution methods in the state.

Contrary to the solid majority of Californians who in opinion polls expressed support for the death penalty, only two out of more than 100 speakers supported a resumption of death sentences once legal hurdles are cleared.

But the opponents' sentiments are unlikely to be persuasive because the hearing was intended to review specific execution procedures, not the pros and cons of capital punishment, which remains a legal option in the state.

Executions have been on hold since a federal judge raised concerns 3 1/2 years ago that California's three-drug method could inflict cruel and unusual punishment. Their resumption isn't expected in the near future, not because of opposition but because of legal and financial obstacles the state has yet to overcome.

Tuesday's hearing by the California Department of Corrections and Rehabilitation concluded a two-month period for public comment that drew more than 5,000 written opinions, which will be considered before the protocols are adopted, said department spokesman Seth Unger.

Two court cases still stand in the way of executing any of the 682 prisoners on death row, both filed by Michael A. Morales, the convicted murderer whose challenge to the constitutionality of the process brought the de facto suspension in February 2006.

When and if the protocols are approved, in two months at the earliest, the legal reviews are expected to take a year -- and probably longer if opponents are successful in raising other constitutional issues. Condemned prisoners have a right to habeas corpus appeals in federal court, but a lack of funds for lawyers and jammed court calendars grossly delay the cases. It now takes an average of 25 years between conviction and execution.

Despite what was supposed to be a narrow discussion, religious leaders, doctors, lawyers, teachers and family members of murderers and their victims seized the opportunity to rail against "state-sponsored killing" and the $125 million a year spent to maintain a dysfunctional death row.

The Sacramento Bee has, "Public hearing turns into passionate debate on death penalty," by Sam Stanton.

It was supposed to be a dry public hearing on a "notice of proposed regulations," a meeting to let citizens speak about technical aspects of how lethal injection is administered to condemned inmates.

But anti-death penalty groups galvanized hundreds of their supporters to file into a Sacramento auditorium Tuesday for an emotional, day-long debate on whether capital punishment is justified or should be abolished.

It was clearly a one-sided debate.

By the time the scheduled 3 p.m. close of the hearing arrived, nearly 100 people had spoken – only two in favor of the death penalty – and the hearing was extended two hours because so many more people wanted to talk.

"I have a commission from on high," Bill Babbitt, a 66-year-old Elk Grove man who travels the nation speaking out against the death penalty, said before he took the lectern. "God has told me what he wants me to do with my life."

Babbitt has believed that since he watched his brother, Manny, die in the San Quentin death chamber in 1999 on Manny Babbitt's 50th birthday.

He was executed for killing a 78-year-old Sacramento grandmother, Leah Schendel, in 1980, despite pleas that he be spared because his service in Vietnam had left him with mental disorders.

And:

With California teetering on the financial brink, many speakers said abolishing the death penalty could save the state millions of dollars, despite the corrections department's statement that the new lethal injection process would have no fiscal impact.

Proponents of abolishing the death penalty cite a state study that says housing 680 inmates on death row and trying to implement the death penalty costs $137 million each year, while placing them all in prison for life would save $125 million.

Mike Farrell, the former M*A*S*H star who now heads the anti-death penalty group Death Penalty Focus, said there are too many unknown costs associated with capital punishment, including psychological pressures on execution team members and wardens.

Lance Lindsey, the group's executive director, called the death penalty procedures "heinously flawed," and said it was something "you will take with you for the rest of your lives."

Scott Smith writes, "Death debate rages," in today's Stockton Record.

One by one, a line of capital punishment opponents stepped up to a podium Tuesday, making impassioned arguments against California's newly proposed lethal injection procedure.

Each speaker was limited to three minutes. A woman talked of watching Stanley "Tookie" Williams writhe in a botched 2005 execution. Another speaker said his father-in-law was recently executed in China, giving him painful insight into state killings.

Elizabeth Zitrin, representing Death Penalty Focus, said California's efforts to jump start capital punishment put it in league with countries such as China, Saudi Arabia, Pakistan, Iran and Iraq.

"We're in the company of the world's worst human rights abusers," she said. "Today the world is watching California."

More than 100 people used California's first-ever open hearing on the death penalty to deliver their criticism of the state's execution procedure. Some 250 people filled the auditorium a short walk from the Capitol.

Attorneys for Stockton's Michael Angelo Morales prompted the hearing, winning a ruling on appeal last year to make the state put its lethal injection procedure up for public comment before adopting it. Morales is the next California prisoner in line for execution.

Paul Elias' AP report is via the San Francisco Chronicle as, "Public comments on Calif lethal injection proposal."

After Tuesday, the state will have up to a year to assess the comments and edit the proposed procedures before they become official regulations. Only then will they be presented to U.S. District Court Judge Jeremy Fogel, who has suspended executions in California until prison officials fix the deficiencies he identified in the lethal injection process.

In 2006, Fogel halted executions until officials expanded the death chamber at San Quentin prison and provided more executioner training and other upgrades to ensure the condemned do not suffer cruel and unusual punishment.

The state has since constructed a new death chamber and the proposed new regulations require execution team members to undergo monthly mock executions. The rules would require three syringes, each filled with different drugs, to be administered by staff licensed to give injections in California. A physician must be on hand to declare death.

At least 10 death row inmates complained in writing that they have not received copies of the new regulations.

Among the issues brought up at Tuesday's hearing, religious groups complained that a proposal requiring a chaplain to send a written report to prison officials discussing the mental state of a condemned inmate violates the confidentialy promises implied by clergy.

The proposed regulations also don't discuss how women will be executed, said Gloria Killian, who was released from California prison in 2002 after serving 16 years for a murder she didn't commit. There are currently 15 female inmates on death row.

"Where will they be housed in an all-male prison?" Killian asked. "Women deal with emotion, trauma and other events differently than men do."

Even if the state's proposal passes legal muster, it would take at least a year to reinstate the death penalty.

Whatever is decided in California, which has the nation's largest death row at 680 condemned inmates, is expected to shape how other states carry out executions.

Since the U.S. Supreme Court signed off on Kentucky's lethal injection process last year and lifted a brief nationwide moratorium, the federal government and 36 states that employ the execution method have experienced varying degrees of success in restarting capital punishment.

Maryland has embarked on a public comment process like California's. A federal judge has ordered a halt to executions in Missouri. And other states such as Texas have carried out a combined 68 lethal injection executions since the Supreme Court's ruling in 2008.

Earlier coverage begins with yesterday's post previewing the hearing.

Ohio Innocence Project Presses Death Row Case

AP reporter Andrew Welsh-Huggins writes, "Condemned Ohio killer of 3 says he's innocent," via the Dayton Daily News.

An organization devoted to freeing innocent inmates has gone to bat for a condemned Ohio killer, a rare move for a group better known for using DNA evidence to challenge convictions in non-death penalty cases.

The Ohio Innocence Project says Kevin Keith did not kill three people, including a 7-year-old girl, and wound three others in a 1994 shooting in Bucyrus.

"This case gave me grave concerns," project director Mark Godsey said. "I feltwe should weigh in."

The group, which has asked the Ohio Supreme Court to consider Keith's claim of innocence, generally steers clear of death penalty cases because inmates already have attorneys making their case. In this one, Keith's public defenders say there is another suspect and that a police detective lied about a witness' statement.

And:

Innocence claims by Ohio death row inmates are relatively rare. Ohio public defenders have filed only a handful of similar claims in the past five years. The state has 172 men and one woman on death row.

The shooting happened Feb. 13, 1994, at an apartment in Bucyrus, about 65 miles north of Columbus.

Prosecutors say Keith entered the apartment and sprayed it with gunfire, killing Marichell Chatman, 24; her 4-year-old daughter, Marchae; and the child's aunt, Linda Chatman, 39. Marichell Chatman was the brother of an undercover police informant whose efforts led to a four-count indictment against Keith for selling drugs, according to prosecutors.

Three others were shot that night but survived: Richard Warren, who would testify against Keith at trial; Quanita Reeves, 7; and her brother Quinton Reeves, 4.

Keith's public defenders say they uncovered evidence that bolsters a theory first presented at Keith's trial: that there was another suspect.

That person was a suspect in a series of pharmacy robberies around the time of the killings. He testified at trial that he told surviving family members that the shootings might have been in retaliation over the informant.

'Scent Lineups' Stink to Critics

That's the title of a report in today's USA Today written by Kevin Johnson.  LINK

Two federal lawsuits are casting a harsh spotlight on an investigative tool long beloved by American law enforcement: a bloodhound's nose.

Lawsuits filed in Victoria, Texas, allege that Fort Bend County Sheriff's Deputy Keith Pikett and his team of hounds — James Bond, Quincy and Clue — failed controversial sniff tests known as "scent lineups."

Much like in traditional lineups, the dogs link human scents left at crime scenes to samples from suspects.

In each case, the suits allege, Pikett's dogs called attention to the wrong person. Both former suspects have been cleared.

The legal challenges are "a first for us," says Randall Morse, an assistant county attorney who is representing Pikett. He says the hounds have worked about 2,000 cases across the country, including the search for Olympic Park bomber Eric Rudolph.

And:

Defense lawyers say the technique smacks of forensic voodoo and casts further suspicion on the broader use of scent dog evidence.

"It's a fraud on so many levels," says Jeffrey Weiner, former president of the National Association of Criminal Defense Lawyers.

Since 2004, two men in Florida and one in California have been freed after DNA evidence exonerated them. They had been convicted, in part, on the use of scent evidence, according to the Innocence Project, which uses DNA to exonerate the wrongly convicted. Pikett's dogs weren't involved in those cases.

National Police Bloodhound Association spokesman Dennis Guzlas says the association urges that scent lineups be used with caution.

An Interview With Sandra Day O'Connor

The Daily Beast today has "A Justice Reflects."  SDO was interviewed by Walter Isaccson, the CEO of the Aspen Institute, author, and former journalist.  Here's an excerpt:

Are you happy that a woman, Sonia Sotomayor, has been nominated to fill the latest vacancy on the Supreme Court?

I should say so. I was disappointed when I stepped down that I wasn’t replaced by a woman. It’s important for people to look around and see that women, who make up slightly more than 50 percent of the population, are represented on the court.

Judge Sotomayor’s supporters say that her background and life story would make her a good addition to the court. Should such things matter in picking a justice?

We’re all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court. We have our life experiences. For example, for me it was growing up on a remote ranch in the West. If something broke, you’d have to fix it yourself. The solution didn’t always have to look beautiful, but it had to work. So that made me a little more pragmatic than some other justices. I liked to find solutions that would work.

You were the last elected official to serve on the court. You were the Republican leader in the Arizona state Senate, and you served in all three branches of state government. Was that important to your work on the High Court?

Absolutely. And here’s something I want to emphasize. It’s important for the Supreme Court to have a broader set of life experiences than just people who have served as judges. Judge Sotomayor’s appointment would mean that all nine justices are products of the federal courts of appeals. It used to not be that way. I was from state government. William Rehnquist had never been a judge before he was appointed to the Supreme Court. Lewis Powell had never been a judge. But they had broad real-life experiences, and I thought that helped make them good justices. In years past, you always had people on the court who had not spent their entire career as judges.

Do you think empathy is an important quality for a justice, as President Obama has said?

I’m not quite sure what that means. I have always tried to set aside emotional feelings when deciding a case. When you’re deciding an abstract principle, I don’t think it’s helpful to have an emotional attachment. But you do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.

 Justice O'Connor is one of the speakers at the Aspen Ideas Festival,which continues through July 5; more on the program at the link.

Clemency Denied in Oklahoma

"Oklahoma Pardon and Parole Board denies clemency," is the title of the AP brief, via NewsOK.

The Oklahoma Pardon and Parole Board has unanimously denied clemency for a 32-year-old man facing execution for killing two men in southern Oklahoma. The decision came Monday after testimony from the condemned man, Michael P. DeLozier, and from the family of his victims. DeLozier is set to die by injection July 9 for the 1995 killings of Paul Steven Morgan and Orville Lewis Bullard.

The Joplin Globe carries a longer AP report, "Oklahoma: Board denies clemency for death row inmate."

The Oklahoma Pardon and Parole Board voted unanimously Monday to deny clemency for a man facing execution for killing two campers in southern Oklahoma nearly 14 years ago.

Board members heard two hours of testimony from lawyers, a medical expert, the victims’ family members and the inmate, Michael P. DeLozier, via video connection before making their decision.

Phyllis Morgan, widow of victim Paul Steven Morgan, let out a muffled cheer and embraced a family member after the vote.

The hearing was one of the final avenues of relief left for DeLozier, 32, who is scheduled to die by lethal injection July 9 at the Oklahoma State Penitentiary in McAlester. Had the board decided in favor of clemency, the recommendation would have been forwarded to Gov. Brad Henry, who would’ve had the final say in whether the death sentence was commuted to life in prison with or without parole.

Oklahoma's clemency process is mentioned in the 2005 report "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  Role of Mercy was issued by  Texas Appleseed and the Texas Innocence Network.  Related articles are in the clemency category index.

California's Long Process to Resuming Executions

That's the title of an AP report by Paul Elias, via today's San Francisco Chronicle.  LINK

A Contra Costa County judge last week sentenced Darryl Kemp to death for the random rape and murder of a young jogger. But chances are that Kemp will not be executed anytime soon, if at all.

He is 73. It takes an average of 20 years to execute an inmate in California. And capital punishment has been suspended since February 2006 when Michael Morales came within two hours of execution for the rape and murder of a 17-year-old girl.

On Tuesday, the return to capital punishment takes a step forward when prison officials convene a daylong public hearing on proposed rules for lethally injecting condemned inmates with three drugs. Even if the proposal passes legal muster, reinstating the death penalty is expected to take up to a year.

Whatever is decided in California, where there are 680 condemned inmates, is expected to shape how other states carry out executions.

Since the U.S. Supreme Court signed off on Kentucky's lethal injection process last year and lifted a brief nationwide moratorium, 36 states and the federal government, which employ the execution method, have experienced varying degrees of success in restarting capital punishment.

A federal judge in 2006 halted executions in California until officials expanded the death chamber at San Quentin prison and provided more executioner training and other upgrades to ensure the condemned do not suffer cruel and unusual punishment.

The Department of Corrections and Rehabilitation has since constructed a new death chamber and the proposed new regulations require execution team members to undergo monthly mock executions. The rules would require three syringes, each filled with different drugs, to be administered by staff licensed to give injections in California. A physician must be on hand to declare death.

A state judge ruled that the 42 pages of execution protocols, including instructions for mixing and injecting the drugs, had to be subjected to California's lengthy regulatory process, starting with a 45-day public comment period.

Corrections officials have received more than 1,400 written comments, the vast majority opposed to the proposed procedures or death penalty generally.

And:

Maryland has embarked on a public comment process like California's. A federal judge has ordered a halt to executions in Missouri. And other states such as Texas have carried out a combined 68 lethal injection executions since the Supreme Court's ruling in 2008.

"Death row foes now fight the cost of executions," is Carol Williams' report in today's Los Angeles Times.

Nearly 3 1/2 years into a court-ordered suspension of executions, opponents have embraced a new argument: that Californians can't afford to carry out the death penalty in a constitutional manner.

They contend that by commuting all 682 death row inmates' sentences to life without the possibility of parole, the state could save up to $1 billion over the next five years -- a view expected to be offered, and challenged, during a public hearing today in Sacramento on proposed changes to the lethal injection procedures.

The cost-saving argument has emerged as abolitionists have unsuccessfully lobbied for repeal of capital punishment on moral grounds.

They have been empowered by the state's budget crisis, as well as by some influential law-and-order advocates who have concluded that deficiencies in the legal and corrections systems are beyond repair.

More California death row inmates have died in the time that executions have been halted than were put to death in the previous 30 years: 16 have died since early 2006, 11 of natural causes and five by suicide, compared with 13 put to death since 1976.

Today's six-hour hearing concludes a two-month period for public comment on the revised lethal injection routine that has drawn at least 2,000 written opinions.

Among those calling for commutation on economic grounds are former California Atty. Gen. John Van de Kamp and former corrections chief Jeanne Woodford.

"With California facing its most severe fiscal crisis in recent memory -- with draconian cuts about to be imposed from Sacramento that will affect every resident of the state -- it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books," Van de Kamp argued.

A death penalty advocate through his long prosecutorial career, Van de Kamp led a review last year of the state's capital punishment apparatus by the California Commission on the Fair Administration of Justice.

The bipartisan panel concluded that the system is dysfunctional and needs nearly $100 million more annually to provide adequate legal representation for capital cases and cut in half what is now an average of 25 years between conviction and execution.

Earlier coverage begins here.

Troy Davis

The Supreme Court ended its term yesterday without acting on the cert petition filed by Troy Davis' attorneys.  Today's Atlanta Journal-Constitution carries the AP report, "Supreme Court delays Troy Davis decision."

Death row inmate Troy Anthony Davis got another legal break Monday when the U.S. Supreme Court recessed for summer without acting on his latest appeal, likely delaying any developments in his case until fall. Earlier, his supporters presented Savannah’s district attorney with 60,000 petition signatures urging him to reopen the case.

Davis has spent nearly 18 years on death row after his conviction for killing an off-duty police officer, and his case has become a rallying point for death penalty opponents worldwide. His attorneys say Davis is innocent of killing officer Mark MacPhail and deserves a new trial after several prosecution witnesses reconsidered testimony given at his 1991 trial.

Davis has been spared from execution three times since he was first scheduled to die by lethal injection in 2007, as various courts have weighed and ultimately rejected his appeals.

Davis’ attorneys filed his latest appeal with the U.S. Supreme Court after the 11th Circuit Court of Appeals rejected their request for a new trial in April. The Supreme Court had not decided whether it would hear Davis’ appeal when justices recessed for the summer Monday. They won’t reconvene until September.

“It’s definitely good news,” said Jason Ewart, Davis’ attorney, who interpreted the court’s inaction as a sign it wants to take a closer look at the case. “It’s not just a move buying more time.”

While the Supreme Court’s in recess, the next move would be up to Chatham County District Attorney Larry Chisolm.

There’s no stay of execution preventing Chisolm from seeking a judge’s order to move forward with Davis’ death sentence. The prosecutor released a brief statement Monday that stopped short of saying he would wait for the Supreme Court before acting.

“As previously stated, the Chatham County District Attorney’s office has no comment on the substance of this case until all appeals are exhausted,” Chisolm said.

Chisolm’s spokeswoman, Lydia Sermons, declined to comment further.

Davis’ supporters say Chisolm has another option. They’re working to pressure Chisolm to reopen Davis’ case without waiting for the courts.

“He doesn’t have to wait for them,” said Martina Correia, Davis’ sister. “He could still open this case at any time.”

Earlier coverage begins with this post from yesterday morning.

The Charles Raby Case

"HPD crime lab back in the spotlight," is the title of Roma Khanna's report in today's Houston Chronicle.

A death row inmate from Houston, whose conviction is receiving new scrutiny after DNA tests contradicted evidence in his case, will return to court next week where his lawyer will seek his release or a new trial.

A Harris County jury sentenced Charles D. Raby to death in the 1994 murder of a 72-year-old woman assaulted and stabbed in her own home. It is a case that once again highlights errors in work from the Houston Police Department crime lab, with the city’s own expert calling the original testimony “incorrect … and not supported.”

State District Judge Joan Campbell on Monday is scheduled to resume a hearing that began in January when Raby’s lawyer presented new DNA tests on scrapings from the victim’s fingernails, which include no evidence from Raby. Since then, his case has stalled as prosecutors and the Houston Police Department sought expert opinions.

Raby’s lawyer, Sarah Frazier, goes so far as to call the crime lab evidence presented at trial false and claimed prosecutors failed to disclose information about the forensic tests that could have helped Raby before his 1994 trial.

“Trying to pretend that Mr. Raby’s trial was at all legitimate is becoming more and more strained,” Frazier said. “He clearly is entitled to a new trial after all this time.”

The Harris County District Attorney’s office has maintained that the new fingernail evidence is inconclusive and does not clear Raby. Prosecutors on the case were unavailable Friday and a spokeswoman for the district attorney’s office declined comment.

In January, Assistant District Attorney Lynn Hardaway said the new evidence should not affect Raby’s conviction because “the absence of DNA doesn’t mean he didn’t do it.”

And:

At Raby’s trial, jurors heard testimony from HPD crime lab analyst Joseph Chu, who told them that tests conducted on scrapings from under Franklin’s fingernails were inconclusive.

Years later, as revelations about chronic problems at the HPD crime lab came to light, Raby’s case received a second look.

Experts questioned Chu’s conclusions. Patricia Hamby, an expert hired by HPD, found that Chu had strayed from accepted procedures for body-fluid testing and had drawn faulty conclusions.

“The reporting of the blood typing of the ‘fingernails’ as ‘inconclusive’ … is contrary to and not supported by the recorded laboratory results,” Hamby wrote in a report last month to Irma Rios, HPD’s crime lab director.

In 2005, the Court of Criminal Appealsapproved DNA testing on the fingernail scrapings. A private lab in California last year completed analyses that revealed the profiles of two men. They matched neither Raby nor Franklin’s two grandsons.

“The grandsons’ exclusion is significant because these were the only individuals who had regular contact with the victim — a frail, malnourished woman in her 70s who rarely left her home or entertained strangers,” Frazier wrote.

In fact, a forensic expert hired by Raby’s lawyers testified in January that it is rare to find foreign DNA under a crime victim’s fingernails, and that if often can be traced to the person’s partner or attacker.

Khanna, who covered the HPD Crime Lab scandal for years, also wrote an earlier version for the Chronicle website, "Judge seeks expert testimony in Death Row inmate's case."

A Harris County judge wants to hear testimony from a forensic expert before deciding whether new DNA evidence is favorable to death row inmate Charles D. Raby, condemned in the 1994 murder of an elderly woman.

Raby’s conviction is receiving new scrutiny because DNA tests contradict evidence from the Houston Police Department crime lab in his case. His lawyer is seeking his release or a new trial.

On Monday, state District Judge Joan Campbell delayed closing arguments in an evidentiary hearing on the DNA evidence to allow testimony from the city’s expert, Patricia Hamby. She has called the original testimony and lab work by HPD analyst Joseph Chu “incorrect … and not supported.”

Hamby, who is based in Indiana, is expected to testify sometime next month. After her appearance, Campbell will decide whether the new evidence is favorable to Raby’s case, a decision that could provide an opening for his attorney to seek his release or a new trial.

The Houston Press has, "Death-Row Inmate Finally Gets A Break In Crime-Lab Case," by Mike Giglio.

An outside expert, Patricia P. Hamby, determined that the much-maligned Houston Crime Lab had been, at best, misleading in reporting its blood work during the original trial. Blood was found under the victim's fingernails, and it belonged to neither Raby nor the victim. Yet analyst Joseph Chu reported the results as "inconclusive".

It remained to be seen whether Hamby's conclusion would be relevant within the narrow confines of Raby's challenge. That question seemed to be answered this morning, when the judge decided to both accept Hamby's testimony into the record and hear from her in person.

That means closing arguments, scheduled for this week, will be put off indefinitely -- yet again -- until Hamby can appear before the judge.

"I don't know exactly who's going to pay for it. I don't know whose witness she's going to be. But one way or another Patricia Hamby is going to come down to Houston and tell us what she discovered," Sarah Frazier, Raby's lawyer, tells Hair Balls. "I think it's powerful stuff."

Related articles are in the crime lab category index; coverage of the HPD Crime Lab problems, here.

Group Sheds Light on Wrongful Convictions

That's the title of a report from News 8 Austin concerning a weekend rally in Austin.  LINK  It was prepared by Jenna Hiller.  News 8 Austin is the Time Warner Cable 24-hour local news channel for central Texas.

A small, but determined group marched to the Capitol Saturday hoping to bring awareness to the number of wrongful convictions in the United States.

Austin's Freedom March was one of 17 across the country. According to group organizers, Texas leads the nation in verified wrongful convictions, with 38 people exonerated by DNA evidence, so far.

"We've seen 133 people exonerated and released from death row, due to evidence of their wrongful conviction, since 1973 and that includes nine here in Texas," Kristin House, with the Texas Coalition to Abolish the Death Penalty, said. "I think it's this issue of whether or not we can get it right, and if we can't get it right 100 percent of the time, should we really be in the business of killing people?"

The majority of Saturday's crowd consisted of a group from Corpus Christi who know Hannah Overton.

In 2007 a jury found Overton guilty of capital murder for poisoning a foster child she and her husband were trying to adopt.

And:

Overton's supporters say she didn't get a fair trial.

"We believe that the jurors found Hannah guilty of murder without intent, which has to be proven in a murder case," Overton's pastor Rod Carver said.

Carver said the mother of five didn't know the child was suffering from sodium poisoning until he'd been sick for more than an hour.

"They didn't prove she poisoned the child," he said. "They found her guilty of not getting to the hospital quick enough."

Earlier coverage of the Overton case is here.

New Lab Report Case Granted - UPDATED

That's the title of Lyle Denniston's SCOTUS Blog post, concerning today's cert grant in Briscoe, et al., v.
Virginia, 07-11191.

The Supreme Court, in the final round of orders for the Term, agreed on Monday to review a sequel to its decision last week limiting the use of crime lab reports as evidence in criminal trials. The new case (Briscoe, et al., v. Virginia, 07-11191) involves the constitutionality of a procedure used in Virginia that requires an accused to assert a demand to question the technician who prepared the lab report. The state Supreme Court ruled that, if an accused does not follow the demand procedure, he surrenders his right to confront and cross-examine the report's author. 

UPDATED - Denniston's post has been updated and retitled, "Analysis: Is Melindez-Diaz already endangered?" 

"Forensic ruling adds burden for prosecutors," is the title of Tony Mauro's report on the Melindez-Diaz ruling in today's National Law Journal.

Both sides agree: The U.S. Supreme Court's June 25 ruling requiring that forensic evidence be presented at criminal trials by a witness who can be cross-examined will impose new burdens on prosecutors.

But initial reaction to the 5-4 decision in Melendez-Diaz v. Massachusetts was split over how big that burden will be — or whether it's a cost that just has to be borne to meet the requirements of the Sixth Amendment's confrontation clause. The Court said that written lab reports or affidavits alone won't suffice.

"I don't think there's any doubt it is going to be burdensome," said Sidley Austin partner Jeffrey Green, who wrote a brief in the case for the National Association of Criminal Defense Lawyers. "But so is a jury trial. All constitutional rights are burdensome to a degree, but it's difficult to imagine anything more critical to the outcome of a trial than examining whether a substance really is what it is."

Massachusetts Attorney General Martha Coakley, who argued and lost the case before the high court, said that "the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the commonwealth's courts." Prosecutors say laboratory personnel will be diverted to waiting for court appearances instead of processing drug and DNA evidence.

And:

Justice Antonin Scalia wrote the opinion, which flows from his 2004 landmark decision in Crawford v. Washington that breathed new life into the confrontation clause. That part of the Sixth Amendment gives a person accused of crimes the right "to be confronted with the witnesses against him." Luis Melendez-Diaz invoked Crawford to challenge his conviction on drug trafficking charges, which was based in part on a certificate presented at trial — but not by a witness — stating that the substance obtained from his car was cocaine. State courts upheld the conviction.

In the Melendez-Diaz opinion, Scalia said the confrontation clause allows no way of presenting such evidence other than by a witness who can be cross-examined. "The Confrontation Clause," wrote Scalia, "is binding, and we may not disregard it at our convenience." Scalia also displayed a measure of skepticism about forensic evidence in a passage likely to be quoted often by defendants on appeal. "Forensic evidence is not uniquely immune from the risk of manipulation," Scalia wrote, in explaining why it should be subjected to scrutiny at trial.

More at the Melendez-Diaz Scotus Wiki page; earlier coverage at StandDown, here.

No Word From Supreme Court on Troy Davis Petition

The Court held it's last public session of the 2008-2009 term today, as noted by Tom Goldstein and his SCOTUS Blog crew.  The Court still has before it the cert petition for Troy Davis.  Goldstein posted:

The Court will issue an orders list  before it releases the opinions  -- saying which petitions it is granting, and which it is denying.   But that won't resolve all the petitions, so there will be another orders list -- presumably later today or tomorrow morning.

Today's Atlanta Journal-Constitution reports, "Clock ticks on Davis' petition to high court," written by Katie Leslie.

If the court does not decide by Tuesday whether to hear Davis’ most recent petition to retry his 1991 case in the murder of a Savannah police officer, justices won’t convene again until fall. This current petition is largely considered Davis’ most viable option to stay alive, said Laura Moye of Amnesty International’s Death Penalty Abolition Campaign.

But a delay could be good news for Davis’ legal team and supporters.

“It buys more time for all of the advocates to get more publicity on the case,” Moye said.

If the court decides against hearing Davis’ petition, it will be up to Chatham County District Attorney Larry Chisolm whether to pursue Davis’ fourth execution warrant. Chisolm could not be reached for immediate comment Sunday.

Davis, 40, was convicted of murdering Savannah police Officer Mark Allen MacPhail, 27, though no physical evidence directly linked him to the crime.

Since Davis’ trial, seven of nine witnesses have recanted their testimony and some people have implicated Sylvester “Redd” Coles as the shooter. Coles was the first person to implicate Davis in the killing.

Davis’ execution has been stayed three times as his attorneys work to save his life. Requests for a new trial in Chatham County have been denied, as have their petitions to have new evidence considered in the case.

Earlier coverage begins with John Berendt's recent OpEd on the case.

Kansas City Star Calls for Missouri Moratorium

"Moratorium on Missouri executions makes sense," is the title of the Kansas City Star editorial.  It appeared in the Sunday edition. 

Executions in Missouri are on hold — again.

Any delay is to be applauded. The death penalty is expensive and impossible to mete out fairly. It is simply a flawed public policy.

But Missouri is allowing inmate appeals to determine how and when the state administers capital punishment. The on-again, off-again pace of executions is excruciating for family members of both victims and inmates.

Incoming state Supreme Court Chief Justice William Ray Price Jr. said last week the state will likely schedule no execution dates while officials await the outcome of a federal appeal filed on behalf of death row inmate Reginald Clemons.

And:

Last session, the Missouri House took a step toward resolving the uncertainty when it seriously considered a moratorium on executions. Lawmakers stopped short of taking that step. But they voted to create a commission that would review cases to ensure those sentenced to death are guilty and received adequate legal counsel, and to consider possible alternative punishments.

Unfortunately, the Senate didn’t endorse comparable legislation. So the legislature passed up its best opportunity in years to lead the discussion on capital punishment.

The state has a sorry history of handling capital cases. Several inmates have been released from death row after flaws were found in the legal process. Serious questions remain about the fairness of some executions that took place.

A moratorium and a study are the best ways for Missouri to resolve the many troubling issues that have arisen from its application of the death penalty.

Reluctant lawmakers may find some encouragement in a new report in the Journal of Criminal Law & Criminology, published by the Northwestern University School of Law.

The report, by University of Colorado-Boulder professor Michael L. Radelet and researcher Traci L. Lacock, notes problems with previous studies that claim death penalty laws deter people from committing murders.

Radelet and Lacock surveyed 76 criminologists who have been cited by peers as leaders in their field. Of those experts, 88 percent said they don’t think the death penalty acts as a deterrent.

Earlier coverage of the Radelet & Lacock study begins here.  More on the lethal injection debate in Missouri is here.

California's Lethal-Injection Plan Is Proven to Be Inhumane

That's the title of an OpEd by Ty Alper in the Sunday edition of the Silicon Valley Mercury News.  He's the associate director of UC Berkeley Law School's Death Penalty Clinic.  It appeared in the Sunday edition.  LINK

On Tuesday, California prison officials will hear public comment on their proposed procedures for conducting lethal-injection executions. Although officials claim their goal is to achieve humane executions, the Department of Corrections and Rehabilitation plans to stick with a three-drug protocol that risks just the opposite.

The protocol is so fraught with danger that it would be illegal to use to euthanize a dog or cat in this state.

It involves the administration of three drugs: first, an anesthetic; second, a drug that paralyzes the inmate; and third, potassium chloride to stop the heart.

Activists have denounced the practice of paralyzing inmates before executing them, and for good reason. Executioners are typically not qualified to administer anesthesia, let alone monitor the inmate's reaction to the drug throughout the execution. If the inmate is paralyzed and the anesthesia fails, he will feel the excruciating burn of the potassium chloride as it scorches through his veins, but will be unable to indicate he is in pain. His death will appear peaceful, and the public will never know that yet another execution has been botched.

Such a procedure would be illegal if used on animals in California. Even when accompanied by anesthesia, paralytic drugs are generally banned in euthanasia because of the risk that failed anesthesia can go undetected in a paralyzed animal. For that reason, a shelter worker who administers a paralytic during animal euthanasia is guilty of a misdemeanor and subject to a $2,000 fine and a year in jail. That's been the law in this state since 1978.

And:

If this method of killing is unconscionable for animals, why does California insist on using it to execute people? Prison officials cannot claim ignorance. There are decades, even centuries, of evidence that these drugs have the potential to inflict a painful and horrifying death.

In 1868, a Swedish physiologist described paralytic drugs as "the most cruel of all poisons." In the 1970s, military officers in the Philippines, Brazil and Uruguay used paralytics to torture political prisoners. The Humane Society's current training manual states that its members have a "moral and ethical duty" to end the practice of injecting animals with paralytic drugs.

Some Californians believe that inmates should suffer the same painful death that they inflicted on their victims. We cannot deny the grief and rage that accounts for these emotions, but the Constitution requires humane executions. It is time to abandon a drug that has been used to torture both people and animals, and has been rejected by veterinary and animal welfare communities for decades.

The Stockton Record takes an advance look at the Tuesday hearing, "Death penalty argument will focus on cost," by Scott Smith.

Opponents of capital punishment plan to make a big showing in Sacramento on Tuesday at the state's first public hearing to scrutinize California's proposed lethal-injection procedure.

A court ruling won, and upheld on appeal last year, by attorneys for Stockton's Michael Angelo Morales required the state to put the procedure up for comment before adopting it. Morales is the next California prisoner in line for execution. Tuesday's hearing will be at the state's Department of Health Services.

The new procedure calls for - among other things - an executioner to be in the death chamber. After the initial sedative is injected, the executioner will speak to the inmate and jostle him to ensure he is unconscious before the lethal drugs are given.

And:

While the hearing narrowly focuses on the steps of an inmate's execution outlined in the procedure, the ACLU of Northern California, according to Natasha Minsker, plans to highlight the excessive cost of executions at a critical time financially for California.

"We're very concerned about the fact the state is spending so much money trying to resume executions when we're in such dire fiscal straights," Minsker said. "We have so many more important things to do."

The Record notes:

State officials will take public comments from 9 a.m. to 3 p.m. Tuesday on the proposed lethal-injection procedure at the California Department of Health Services, 1500 Capitol Ave., Sacramento.

Earlier coverage of the lethal injection controversy begins with this post.  Related articles are in the lethal injection index.

More on the Yogurt Shop Murders

Austin American-Statesman reporter Steven Kreytak recaps the lengthy history of the controversial case in, "Yogurt shop trials to be a challenge for DA," in the Sunday edition.

Robert Springsteen and Michael Scott walked out of the Travis County Jail last week on personal recognizance bonds after almost a decade behind bars. Given the state of the cases against them, it is unclear whether the men once convicted in the 1991 killings of four teenage girls at a North Austin yogurt shop will ever face re-trials.

Serious questions about the prosecutors' theory of the slayings have arisen recently after DNA from an unknown male — not defendants Scott or Springsteen — was discovered in evidence taken from the bodies of at least two teenage victims.

That further muddles a case that has had problems since firefighters who were extinguishing a blaze set by the killers washed out the crime scene at the I Can't Believe It's Yogurt Shop on West Anderson Lane, where Amy Ayers, 13, Eliza Thomas, 17, and sisters Sarah and Jennifer Harbison, 15 and 17, were found bound, gagged and shot in the head Dec. 6, 1991.

And:

After the crime, Austin's homicide unit was overwhelmed with thousands of tips. Detectives brought in what one investigator estimated could be as many as 60 teenagers for interviews in the first two weeks of the investigation, which quickly went awry when too many of those teens repeated back to police details about the crime that police had sought to keep secret, according to court testimony. A string of confessions investigators believed were false also marred the pursuit of the killers.

Soon, police were investigating their own leaks, and some investigators were removed from the case.

Earlier coverage begins here.

Imprisoned, Facing Impeachment, Kent Resigns Federal Judgeship

"Facing impeachment trial, U.S. judge resigns," is Suzanne Gamboa's AP report, via the Dallas Morning News.

An imprisoned federal judge who's facing an impeachment trial in the Senate in a sex-abuse case says he will resign from the bench at the end of the month.

U.S. District Judge Samuel Kent of Texas produced the resignation letter when he was served with a subpoena for his impeachment trial, Terrance Gainer, the Senate sergeant-at-arms, said on Thursday.

Kent said in the letter that he will resign effective June 30. His attorney, Dick DeGuerin, was in court and could not be reached for comment.

Kent is serving a 33-month sentence in a Massachusetts federal prison for lying to judicial investigators about sexually assaulting two female employees in his court. He was impeached by the House last week, and this week the Senate began work to bring him to trial on the four articles of impeachment.

Lise Olsen writes, "Embattled Kent resigns amid impeachment proceedings," for today's Houston Chronicle.

U.S. District Judge Samuel Kent resigned via an unusual no-frills letter that he hand-delivered in prison to two Senate officials who had come to serve a summons on him as part of ongoing impeachment proceedings in U.S. Congress.

The resignation of Kent, a convicted felon who had continued to collect his $174,000-a-year salary in prison, was announced to the surprised participants at the first meeting of the Senate’s impeachment trial committee Thursday afternoon in Washington. The committee is chaired by Sen. Claire McCaskill, D-Mo., who announced Kent had handed in a resignation, effective Tuesday, on plain paper to the Senate’s sergeant-at-arms during a prison visit.

Kent had earlier offered to resign in mid-2010 — a move that angered U.S. House officials, who quickly voted to impeach him rather than let him collect his salary for the first year of his 33-month sentence. He could be removed from office only after a trial in the U.S. Senate.

Kent pleaded guilty earlier this year to obstruction of justice and admitted to sexually molesting two women who worked for him when he served as the federal judge in Galveston.

Earlier coverage begins here.

A Chaplain's Take on Capital Punishment

That's the title of Bob Lively's religion column which will appear in tomorrow's Austin American-Statesman.  LINK

The last time I checked, seven out of 10 Texans approved of the death penalty, and not surprisingly, Texas executes more people than any other state (and for that matter, most foreign countries). Hence, it should surprise no one that our current governor has sat by while 200 fellow human beings have been executed over in Huntsville. If he commuted death sentences, he'd never be re-elected.

But I wonder about those pro-death penalty Texans. Don't they know that Jesus was a victim of the same state-sanctioned murder to which we've become so tragically inured here in the Lone Star State? The Jewish Sanhedrin did not kill Jesus. Rome did! And from the very beginning of his brief three-year ministry, Jesus opposed any and all expressions of violence.

By far, the most authoritative book I've read on the subject of the death penalty was "Within These Walls: Memoirs of a Death House Chaplain," written by a fellow Presbyterian minister, Carroll Pickett. The Rev. Pickett begrudgingly began assisting with executions back in the '70s when capital punishment was once more ruled legal. Today Carroll Pickett travels coast to coast, advocating passionately and effectively against the death penalty, but more importantly he witnesses to the life and to the radical love of Jesus.

I think Pickett's book is a must-read for every human being who, like me, believes that all human life is sacred. Pickett has come to understand that Caesar's kind of justice all too often looks and smells a whole lot like vengeance, while for God justice is quite simply always the same thing — an incomprehensible love made public.

Boston's Phoenix has new musings on the documentary, "At the Death House Door," written by Peter Keough.

What with the crashing economy, the North Koreans having a nutty and Iran melting down - to name just a few of the crises spinning at the moment - the status of the death penalty would seem to be near the bottom of President Obama's list of priorities. Nonetheless, he'll have no choice but to take a stand on the issue pretty soon, since the cases of six federal death row inmates will probably see their stays of executions expire in the next few months.

Then Obama, who has the authority to pardon them or not, will have to decide whether they live or die.

"The death penalty in the abstract is one thing," says Dianne Rust-Tierney of the National Coalition Against the Death Penalty to "Politico." "The reality of the death penalty and all of its nasty details is a very different thing."

Perhaps the president might want to prep himself for this decision by watching Steve James and Peter Gilbert's ("Hoop Dreams") wrenching, sublimely restrained and expertly crafted documentary, "At the Death House Door,"  which will be released by Facets Video tomorrow. It concerns, in part, the strange career of Rev. Carroll Pickett, who served as the Death Row chaplain at the Huntsville, Texas prison, ushering condemned prisoners through the last 12 hours of their lives.

Pickett's first experience at the prison traumatized him. In 1974, inmates took several civilian workers hostage. Among them were two of his parishioners. He watched them get gunned down in a bloody shootout.

In 1982, six years after the Supreme Court had reinstated the death penalty, Huntsville Prison was in the business of executing people. Pickett, then the prison chaplain and a compelling force for good who had already changed the lives of many prisoners through his ministry and his choir, was enlisted into the "Lethal Injection Team" as the person who would accompany the condemned through his (or her; one victim was a woman) last day, offering them comfort and consolation and, as the warden put it, "seduce" their emotions so they wouldn't "fight" when they had to walk that last 8 feet to be strapped to a gurney and put to death.

Given the murders of his parishioners in 1974, Pickett initially, if abstractly - had no problem with the death penalty. His leather-tough Texas dad used to say "hang them fast and hang them high." But he discovered, as Rust-Tierney noted above, that the reality is different. He was so shaken by the experience that he made a tape recording of his feelings and impressions after each execution. Thirteen years and 95 executions later, including that of one man, Carlos DeLuna, whom he was certain was innocent, Pickett was no longer in favor of capital punishment. Anyone who watches this film will be hard-pressed to support it, either.

Today's Arkansas Online carries Philip Martin's, "ON FILM: Death House Door puts penalty on trial."

Watching At the Death House Door (Facets, $29.95), a 2008 documentary by Peter Gilbert and Steve James (best known for Hoop Dreams) released this week on DVD, I was reminded of the story of Albert Pierrepoint.

Pierrepoint - portrayed by Timothy Spall in the 2005 film The Last Hangman (also known as Pierrepoint) - served as the United Kingdom’s official hangman from 1932 to 1956 and presided at the executions of more than 400 people (including some 200 Nazi war criminals hanged after World War II).

By all accounts, he was extremely precise and methodical, a true professional who dispatched his “clients” with as little ado as possible. He was a mercifully swift worker - rarely did more than 30 seconds elapse between the condemned’s arrival on his gallows and execution. (Having done some work for the U.S. Army during World War II, he hated the way the Americans dithered around for six or seven minutes reading lengthy charges while the condemned waited on the trap door.)

Dealing in officially sanctioned homicide gave Pierrepoint a unique perspective on capital punishment. In the end, he became if not an abolitionist at least convinced that the policy had no deterrent effect.

“I have come to the conclusion that executions solve nothing,” he wrote in his autobiography, “and are only an antiquated relic of a primitive desire for revenge which takes the easy way and hands over the responsibility for revenge to other people.”

Pierrepoint’s opinion is unlikely to change the minds of capital-punishment advocates - the issue is an emotional one, highly resistant to any evidence and all testimony. It may take something more dramatic than cold numbers to change anyone’s mind about whether the state should have the power of life and death over its citizens.

At the Death House Door starts out as a cinematic portrait of the Rev. Carroll Pickett, a Presbyterian minister whose views on capital punishment were shaped by a “hang ’em high” father, the absence of his murdered grandfather and, years before he worked at the prison, the killing of two of his parishioners - civilian library workers - during a 1974 prison siege. Pickett, once described by a Texas newspaper as “27 degrees right of Rush Limbaugh,” thought the death penalty was appropriate and effective.

During his 16 years as prison chaplain of the Texas State Penitentiary at Huntsville, Pickett witnessed 95 executions by lethal injection. Like Pierrepoint, he was changed by his experience from capital punishment advocate to opponent.

Earlier coverage of the documentary and Carroll Pickett begins with this post.  His book is in the right-column Books section.

DoJ Announces Commitment to Public Defenders, Legal Aid

That's the title of coverage of a speech by Attorney General Eric Holder posted at the Blog of Legal Times, aka, The BLT.  LINK  The post is written by Mike Scarcella.

Attorney General Eric Holder Jr. today outlined a plan in which the Department of Justice seeks to expand its commitment to improving legal services for indigent criminal defendants.

Calling services for indigent offenders in a state of “crisis,” Holder vowed the department will have a greater role in dialogue among public defender agencies across the country.

“Our goal at this Department of Justice is that justice shall be done,” Holder said in remarks delivered to the National Legal Aid & Defender Association today in Georgetown. “That means that when the system breaks down, we all lose.”

The Justice Department, Holder said, is planning more regular meeting with the public criminal defense bar. The goals of prosecution and defense are not irreconcilable, he said.

Holder said Justice components intend to include public defenders in meetings. And the department is planning a national conference to highlight innovative programs and to strategize for greater funding. Holder called it an ambitious agenda.

 The DoJ has posted the Attorney General's prepared remarks at the American Council of Chief Defenders Conference.  Here's an excerpt:

Ten years ago, when I was Deputy Attorney General, I worked with Attorney General Janet Reno to begin a national dialogue on indigent defense.   We brought together the defense bar, prosecutors, judges, and others to talk about the crisis in our public defense system and to explore solutions.   We held two national conferences – one in 1999 and one in 2000 – during which Janet and I helped NLADA launch the American Council of Chief Defenders.   

 

Yet despite this promising start a decade ago, it is clear to me that the crisis in indigent defense has not ended.   And the Justice Department has not remained an active part of the conversation about indigent defense in recent years.   Groups like you have been carrying the mantle, but you should not have to carry it alone.   When I took the oath of office as Attorney General, I swore to support and defend the Constitution of the United States.   Supporting and defending the Constitution includes, in my view, a responsibility to serve as guardians of the rights of all Americans, including the poor and underprivileged.

 

Now, the obstacles to representing the indigent are well-known.   We know that resources for public defender programs lag far behind other justice system programs – they constitute about 3 percent of all criminal justice expenditures in our nation’s largest counties.   In many cases, contract attorneys and assigned lawyers often receive compensation that doesn’t even cover their overhead.   We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients.   We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.   Finally, we know that there are numerous institutional challenges in public defense systems, like budget shortfalls.

 

These challenges are not new.   Justice Hugo Black saw the problem 45 years ago and wrote that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”   What can be done?

 

Let me start with a first principle.   Some may perceive the goals of the prosecution and the goals of the defense as irreconcilable – that those who represent the state and those who represent the accused are forever at odds.   I served as a prosecutor for many years, and I strongly reject that premise.   Our system of justice is adversarial to be sure, but the prosecutor is a special kind of adversary – for criminal litigation is not like civil litigation in one important way.   As the Supreme Court described United States Attorneys long ago, prosecutors are representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Let me repeat – our goal at the Department of Justice is “that justice shall be done.”

 

That means that when the system breaks down, we all lose.   And this is true not just because our shared principles are undermined, but for practical reasons too.   When defendants fail to receive competent legal representation, their cases are vulnerable to costly mistakes that can take a long time to correct.   Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors.   When that happens, no one wins.

 

It also means that we at the Department put a premium on truth-seeking.   The Department’s commitment to ensuring that justice is done is why, for example, I think defendants should have access to DNA evidence in a range of circumstances.   DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty.   As you know, the Supreme Court held last week that there is no substantive due process right to access DNA evidence in post-conviction proceedings.   But the Department distinguishes what is constitutional from what is good policy.   And we have maintained that in a full and fair justice system, it is good policy to permit such access.   Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

 

Now, with that same goal of doing justice in mind, I am very glad to be here today and to renew the Department’s commitment to improving the indigent defense system by announcing five first steps that will bring us closer to making sure that we achieve our goal.

Holder's fifth step:

Fifth, and finally, the Department will host a national conference focusing on issues relating to indigent defense.   This conference will build on the two conferences held in 1999 and 2000, which centered on strategy development and innovative collaborations.   We hope that this conference will help to develop a series of best practices among indigent defense programs throughout the country.   We also hope to highlight innovative programs and efforts, including those that use tools like technology and mentoring in new and effective ways.   Finally, a major goal of this conference will be to help public defense programs strategize about how to get involved in the decision-making process related to funding and, generally, find support in difficult economic times.   As you can tell, this is an ambitious agenda – that’s because there is a lot that can be done.   Putting together the conference and achieving its goals will require help from people like you, who are in the trenches of indigent defense, and I have asked Laurie Robinson and her team at the Office of Justice Programs to consult with members of your bar in planning the conference.

Nickel-and-Dimed to Death

That's the subtitle of a report at North Carolina's Indy Week, "The high cost of the death penalty," written by Matt Saldana.

The cheapest part of executing a prisoner is the killing itself.

The state's procedure of lethal injection costs about $500: $168 in medicine and syringes, plus roughly $340 for the doctor, who is present for three to four hours, according to the N.C. Department of Correction. (See details below.)

Yet court fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars. The costs are incurred even if the charges are reduced or dismissed. Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used. Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money.

In North Carolina, Sen. Floyd McKissick, D-Durham, recently told the House Ways and Means Committee, "We might want to, at some point, revisit whether the death penalty ought to be imposed, or whether we ought to impose a life sentence without parole, because it's a strong, persuasive and convincing argument when you talk about the astronomical expense of capital cases."

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report. (See box at right.) IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.

And

Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately—even if the charges are eventually dropped or reduced or the cases don't go to trial.

Cases resulting in a death sentence—just one of 12 capital-murder trials last year—are automatically appealed to the state Supreme Court; defendants are eligible for a lengthy post-conviction process, adding to the cost. In the past two years alone, three North Carolina inmates have been released under these circumstances—aided by investigations by nonprofit legal groups—after serving a combined 35 years in prison for crimes for which they were exonerated.

"North Carolinians are paying for an extremely broken death penalty system," says Jeremy Collins, campaign coordinator for the N.C. Coalition for a Moratorium. "We're paying a car note on a vehicle that does not run properly."

Related articles are in StandDown's cost index.

Way Off Topic ... A Friday Night Diversion

Jessica Blank and Erik Jensen wrote the play, "The Exonerated," which has done so much to raise awareness of wrongful convictions; the causes and the personal horror of wrongful incarceration.  Over the years I've highlighted some of Jessica's other work.  Erik is acting in a show being broadcast Friday evening on Fox, and Jessica has sent a message:

As many of you already know, Erik acted in an amazing pilot this year, "Virtuality," by the creators of "Battlestar Galactica." 
 
The ensemble cast (including Erik!) is extraordinary, the show is brilliant, and it deals with issues that, let's say, are not being widely and intelligently dealt with on network television.  The politics of the show are really challenging and good. Tt's extremely intelligent science fiction. This show REALLY DESERVES A CHANCE.
 
"Virtuality" is airing TOMORROW NIGHT on FOX at 8 pm (EDT).  it's being billed as a TV movie, but really the network is trying to see if it gets good enough numbers to pick it up as a series.
 
so...we don't usually do this....but we could really use your help.
 
THE ONLY WAY THIS SHOW WILL GET PICKED UP IS IF ENOUGH PEOPLE WATCH TOMORROW NIGHT AND LET THE NETWORK KNOW THEY LIKED IT.
 
I'm sorry to be so shameless about it, but this show is GREAT -- and my brilliant, amazing husband has been dying to be part of a science-fiction universe since he was, oh, about eight.  This show getting picked up would be a really big deal for us, and there are a couple REALLY simple things you can do to help.
 
It would mean SO much to us if you would:
 

1. Let others know; it will really make a difference.
 
2. WATCH tomorrow night on fox at 8 pm EDT!
 
3. this one is important: as soon as it's over (or on Saturday or Sunday), please go to the show's website to send an email to FOX and to SciFi letting them know you liked the show and want to see more.

Follow the link for more information on Virtuality.  Ill add Virtuality to the Diversions webroll on the bottom left column.

More on the California Debate

Today's San Francisco Chronicle carries the OpEd, "Replace death penalty with permanent improisonment."  It's written by Jon Streeter, Bill Hing and Diane Bellas; all served on the California Commission on the Fair Administration of Justice.

After spending four years on the California Commission on the Fair Administration of Justice, we were pleased to see state Sen. Tom Harmon, R-Huntington Beach, cite our commission's report on the death penalty in his June 15 Open Forum piece, "Legal stalling packs Death Row." We are concerned, however, that Harmon did not disclose the reasons we concluded that California's death penalty is not working. He also failed to disclose that it will cost more than $230 million a year to fix it.

The commission was created by the Senate to investigate the problems of wrongful convictions and wrongful executions. After issuing eight reports on the causes of wrongful convictions, we turned our attention to the administration of the death penalty. Ours was the first comprehensive analysis of the problems with the California's death penalty, the reforms needed, the possible alternatives and the costs.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all.

And:

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

As Sen. Harmon stated, "California can't afford the dysfunctional death penalty system in place." What he fails to disclose is that California can't afford to fix it either.

We have an alternative, however. California can and should replace the death penalty with the sentence of permanent imprisonment: life with absolutely no possibility of parole. The past 30 years have shown that permanent imprisonment succeeds where the death penalty fails. It provides severe and certain punishment, ensuring that dangerous people are off the streets. It also provides peace of mind and finality to the family of murder victims, while the death penalty drags them through decades of painful appeals. And, it would save the state hundreds of millions of dollars a year.

It is time for the voters to fix this system: We should replace the death penalty with permanent imprisonment.

Earlier coverage from California begins here.

Marlyand Releases New Lethal Injection Rules

The draft procedures are here.

"Maryland moves toward resuming executions," is Laura Smitherman's report in today's Baltimore Sun.

Gov. Martin O'Malley's administration took a reluctant step Wednesday toward resuming executions in Maryland after the governor failed earlier this year to persuade the General Assembly to outlaw capital punishment.

The state issued revised protocols for lethal injections, which O'Malley had postponed as he sought to build support for a repeal in the legislature. The governor, a Roman Catholic, had made it a personal crusade to end the death penalty. A de facto moratorium has been in place since December 2006, when the state's highest court ruled that the protocols had been improperly developed.

The new protocols largely mirror death-penalty procedures that had been used by the Department of Public Safety and Correctional Services but had not been formally adopted through the regulatory process, which also includes public review. Some changes include extending the time death-row inmates spend with family before being executed, and allowing them to order a special last meal.

But it's unlikely that an execution will be carried out for months or even years.

The regulations must be vetted by a joint legislative committee that is co-chaired by two staunch death penalty opponents, who could delay final approval of the regulations and are likely to hold public hearings. Death penalty foes plan to raise concerns about the drug cocktail used for executions and the presence of medical personnel.

And while O'Malley has said he would uphold the law despite his personal misgivings, he plans to review the cases of the five prisoners on death row before signing their death warrants, and he could decide to commute their sentences. The death-row inmates also may continue their appeals.

Today's Washington Post has, "Md. Releases Rules That Could Restart Executions," by Lisa Rein.

Gov. Martin O'Malley's administration issued new regulations yesterday that could clear the way for Maryland to resume executions by lethal injection, effectively ending a 2 1/2 -year moratorium on capital punishment.

The regulations were delayed for months while O'Malley (D) pushed unsuccessfully to abolish the death penalty. The General Assembly agreed instead in March to tighten evidence standards in capital cases. The manual, written by corrections officials, must be approved by a 20-member legislative committee that is split between supporters and opponents of capital punishment.

The committee's Senate leader, Paul G. Pinsky (D-Prince George's), a death penalty opponent, said yesterday that he is "in no hurry" to call for a vote.

"We may even put a hold on these," Pinsky said. "At the same time, I know the legislature has spoken."

If the committee, which reviews administration regulations, does not act within a review period of about three months, O'Malley could put the procedures into effect.

And:

The manual is the first public document to lay out execution procedures since Maryland reinstated the death penalty in 1978. The biggest change is that the new regulations require medical personnel who inject the lethal combination of drugs into an inmate's veins to find an alternative to the arms if those veins are too scarred to accept a needle.

The change was prompted by a lawsuit by Vernon L. Evans Jr., who said his arms were so scarred by drug use that he would be harmed when the three lethal drugs were administered. Evans is one of five inmates on Maryland's death row.

Other changes in the manual requested by the state's public defender's office include allowing the corrections chief to grant an inmate's request for a special last meal; allowing the inmate to choose which of his attorneys he wants to witness his execution; and allowing family members to visit as late as three hours before the execution instead of four.

The procedures also prohibit the state from using a medical procedure known as a "cut down" to guide the needle to a hard-to-locate vein. A cut down allows the inmate's skin to be cut, a method used in several states that has been criticized as antiquated and as causing the prisoner pain.

The Daily Record's Steve Lash writes, "State drafts lethal injection rules."

Completion of the draft regulations follows an unsuccessful legislative effort this year to repeal the state’s death penalty, an attempt O’Malley backed. A compromise measure was passed that greatly restricts the use of capital punishment.

O’Malley praised the new law and said he had no choice but to allow the drafting of new protocols to move forward after the repeal effort failed.

“These new regulations mark an important step in ensuring that the death penalty in Maryland is carried out in a manner consistent with state and federal law,” O’Malley said in a statement after the draft regulations were released. “While I personally oppose the death penalty, I took an oath to uphold the laws of our state.”

And:

The proposed lethal-injection regulations would do the following:

* Clarify prohibitions preventing a Department of Corrections employee from performing a medical procedure known as a “cut down” — in which an incision is made to expose a vein — at the time of execution in order to administer the injections;

* Reinforce requirements for pre-execution examination of the convict to determine appropriate locations to insert intravenous needles necessary for execution;

* Reduce from four hours to three hours the time before execution that the condemned may have visitors, excluding attorney and clergy;

* Require that an inmate with multiple attorneys decide which one, if requested, witnesses the execution;

* Require a contracted paramedic to be immediately outside the execution area if a certified paramedic is not on the execution team; and

* Clarify existing requirements for non-Department of Corrections execution team members to have appropriate credentials to perform assigned duties.

"State drafts new rules for lethal injection," is the AP report via the Cumberland Times-News.

The rules also will be published in the Maryland Register for public inspection and comment for 60 days.

The 35 pages of draft regulations prohibit a procedure called a “cut-down” that was part of the old protocol in case the execution team had trouble finding an arm vein in which to insert a standard intravenous needle. The procedure involves cutting into an inmate’s limb to put a catheter in a deeper vein.

Instead, the proposed rules require a pre-execution examination to locate a vein, whether in the arm, ankle, behind the knee or elsewhere, in which to administer the drugs.

Jane Henderson, executive director of Maryland Citizens Against State Executions, said barring cut-downs could be an improvement. She objected, though, to the inclusion of pancuronium bromide, a paralyzing drug, in the lethal mix. Maryland uses three drugs during executions: sodium pentothal to render the inmate unconscious, pancuronium bromide to paralyze the inmate’s breathing and potassium chloride to stop the heart.

Henderson said the role of pancuronium bromide “is to make it appear to be a peaceful death” even if the inmate is in pain.

Another change requires a certified paramedic to be either part of the execution team or stationed immediately outside the death chamber.

Related articles are in the lethal injection index.  Earlier coverage of Maryland's lethal injection procedure begins here.

Yogurt Shop Murder Defendants Released

It has been a spectacularly tangled case since December 1991 when four girls were killed in a North Austin yogurt shop.  Problems with the investigation were apparent from the beginning.  Four men were identified as suspects and pursued, but it has always been an open question as to whether those convicted were actually guilty.  Yesterday, the case took another dramatic turn.

"Suspects in yogurt shop killings released," is Steven Kreytak's report in today's Austin American-Statesman

More than nine years after telling police they participated in the grisly slayings of four teenage girls at a North Austin yogurt shop in 1991 — confessions their lawyers say were coerced under psychological pressure — Robert Springsteen and Michael Scott were released from jail on bond Wednesday.

State District Judge Mike Lynch ordered the men to be released on their own recognizance after prosecutors said they were not prepared to go to trial as scheduled July 6 given questions raised by recently discovered DNA evidence. Each man remains charged with four counts of capital murder.

Scott, 35, and Springsteen, 34, were each previously convicted of capital murder, but those convictions were tossed on appeal. The men have been locked up since 1999, with Springsteen spending four years on death row. Scott had been sentenced to life in prison.

Just before 3 p.m. Wednesday, Scott walked arm-in-arm with his wife from the Travis County Jail, smiling briefly when a handful of supporters cheered. He said nothing to a throng of assembled media.

Behind him was Springsteen, who gazed wide-eyed at the crowd and up into the live oak trees outside the jail.

And:

Prosecutors said they want to conduct more DNA testing to determine whose male DNA was found in a vaginal swab taken from 13-year-old victim Amy Ayers. DNA from the same male was later found in another victim.

Defense lawyers say the male DNA could have been found in a third victim, but the profile is incomplete, and that another unknown male DNA profile was found on a wrist ligature used to bind a fourth victim.

Tests show conclusively that none of the DNA belongs to Scott, Springsteen or two previous co-defendants, lawyers have said.

Defense lawyers say the new DNA evidence exonerates Scott and Springsteen.

Jordan Smith writes, "Yogurt Shop Murder Defendants Set Free," for the Austin Chronicle.

Lynch's decision to free the two men dealt a devastating blow to the prosecution, raising questions about the D.A.'s ability to withstand mounting evidence supporting the defense. Scott was scheduled for retrial starting July 6, a date set months ago, but on June 24 the Travis County District Attorney's Office announced in court that it was not ready to prosecute. At issue is the discovery last year of unknown male DNA found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers. The D.A.'s Office has been searching for a match to the DNA but after testing more than 100 people – including crime scene and lab personnel, police, firefighters, and friends and acquaintances of the defendants – has not been able to identify the donor. Attorneys for Scott and Spring­steen say the discovery of the unknown male DNA exonerates their clients, but D.A. Rosemary Lehmberg says that isn't so. "It just does not exonerate anybody," she said during a Wednesday press conference following the judge's decision.

Still, it doesn't appear that Lynch is willing to let the prosecution off the hook indefinitely. The case will be back in court Aug. 12, when prosecutors will be asked to update their progress and discuss when they'll be ready to try Scott. Lynch said he expected the state to come prepared with a "more definite game plan," or the court will produce its own.

The latest chapter of the seemingly endless courtroom saga began in March 2008, when new DNA testing by Fairfax Lab (Virginia), working for the state, revealed an unknown male DNA profile inside the body of Ayers, who was murdered with three other young women in a North Austin yogurt shop in 1991. The DNA profile from Ayers' body does not match Springsteen or co-defendant Scott or two other men – Maurice Pierce, who prosecutors had dubbed the "mastermind" behind the grisly murders before dismissing all charges against him in 2003, and Forrest Welborn, who prosecutors had charged acted as a lookout but against whom two grand juries failed to return an indictment.

That revelation sparked yet another round of DNA testing, undertaken by the defense. In court last week, Joe James Sawyer, one of Springsteen's attorneys, said those additional tests, completed by experts with the company Orchid Cellmark, revealed what could be yet another unknown male DNA profile – on vaginal swabs taken from Sarah Harbison, 15, and on a ligature removed from Eliza Thomas, 17. Importantly, testing has also revealed that a swab taken from the fourth victim, Sarah's older sister, Jenn­ifer Harbison, 17, matches the unknown DNA found inside Ayers.

The startling results, Sawyer said at last week's hearing, not only exclude Springsteen – to a "scientific certainty" – from having left any iota of DNA at the scene but also exonerates him from having participated in the grisly quadruple murder.

"2 suspects freed in Texas yogurt shop murder case," is the AP report by Jim Vertuno, via the Fort Worth Star-Telegram.

Police chased thousands of leads and received several false confessions. Springsteen, Scott and two other men were arrested in 1999. Charges against the two other men were eventually dropped, and they are not implicated by the new DNA test.

And:

Scott and Springsteen initially confessed, and each man implicated the other. But both quickly recanted and said their statements were made under police pressure.

The convictions were overturned because in each case, the defense had been unable to cross-examine the co-defendant about his purported confession.

Springsteen was 17 when the girls were killed; the U.S. Supreme Court later banned execution of defendants who were juveniles at the time of the crime. The new DNA tests were conducted in 2008 using technology not available during the defendants’ first trials.

Travis County District Attorney Rosemary Lehmberg said investigators have conducted at least 100 new DNA tests and need more time to keep testing. She suggested that a previously unknown fifth suspect participated in the crime.

A key element of Springsteen’s confession was admitting sexually assaulting Ayers. Now prosecutors face a DNA sample that doesn’t match his confession.

The Austin Chronicle has an extensive archive of its earlier coverage.  Earlier StandDown coverage is here.  I'll have commentary on the case later today.

In ’98, Hints From Sotomayor on Death Penalty

That's the title of a report in today's New York Times on Supreme Court nominee Sonia Sotomayor.  It's written by Benjamin Weiser.  LINK  Here's an excerpt from the beginning:

As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly — and weighing the lives of two men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

“We gave her enough ammunition that she could have struck down the death penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it — had she wanted to reach out and do it — and she didn’t.”

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

And:

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be two executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on one point, she cautioned that his approach could lead to a reversal of any verdict.

“Remember two things,” she told him. “A conviction is important. Surviving conviction is more important.”

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

The National Law Journal has an excellent resource, "The Sotomayor Nomination."  Earlier coverage at StandDown is here.

The Pace of Executive Clemency in Maryland

Today's Baltimore Sun carries a column by Dan Rodricks, "Justice reform not an O'Malley priority."

According to The Washington Post, Gov. Martin O'Malley is about to issue his first pardons since taking office in January 2007, and there are no convicted killers on the short list of those who will catch a break from the Democratic governor. In fact, Mr. O'Malley's mercy extends only to seven people, and they were convicted years ago of petty theft and disorderly conduct.

"I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," the governor and former mayor of Baltimore told the Post. "You probably won't see me doing as many of these as past governors."

Mr. O'Malley, a one-time prosecutor, is also a war-on-drugs warrior. Two years ago, he opposed a relatively modest change in Maryland law that would have given judges discretion in how they sentence low-level, nonviolent drug dealers, the kind who generally sell dope to pay for their own habits. On a talk-radio show, Mr. O'Malley called drug dealing a "violent crime" that needed to be punished, and he opposed the reform.

So I wasn't shocked to see where he's pretty much hit the brakes on pardons.

Mr. O'Malley might have come out against the death penalty and crusaded for its repeal. But opposition to the death penalty does not a corrections reformer make.

Mr. O'Malley is more aptly described as a savvy Democrat in the post-Willie Horton era. Democrats in this era - a prolonged period of hesitance to present effective corrections reforms - have tried to earn and keep tough-on-crime bona fides to counter Republican accusations that they are too soft. With few exceptions, Democrats have been big 'fraidy-cats when it comes to ending the war on drugs, putting corrections (and common sense) back into corrections or challenging the death penalty.

Rodricks references the article, "O'Malley Puts the Brakes on Clemency in Md.," written by John Wagner, which appeared in the Sunday edition of the Washington Post.  Here are two extended excerpts:

During his four years as governor of Maryland, Robert L. Ehrlich Jr. (R) drew national notice for the aggressive use of his executive clemency powers, pardoning or commuting the sentences of 249 convicts, including several serving life sentences for murder.

His successor, Gov. Martin O'Malley, has quietly but abruptly reversed that trend.

Nearly 2 1/2 years into his term, O'Malley is preparing to grant his first pardons, to seven people convicted years ago of such crimes as petty theft and disorderly conduct. Those cases were advertised Friday, as required by law, in a legal newspaper. O'Malley's only previous acts of clemency were releasing two prisoners who were in advanced stages of AIDS. Both were required to return if their conditions improved.

O'Malley (D), a former mayor of Baltimore, said he views clemency requests as less pressing than his other public-safety priorities, including expanding a state DNA database used to solve crimes.

"I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," he said. "You probably won't see me doing as many of these as past governors."

In an interview, Ehrlich declined to comment directly on O'Malley's approach but said he received little criticism for his more expansive approach.

"The criminal justice system has flaws, and it's the job of the governor, when appropriate, to correct those flaws," Ehrlich said. "When you try to make the system better, you don't get much criticism."

The state's last Democratic governor, Parris N. Glendening, was loath to commute life sentences, a view O'Malley said he shares. Glendening did pardon 134 former convicts during his eight years in office.

O'Malley's approach has raised concerns among those in the legal community who see the possibility of clemency as an incentive for offenders to improve their behavior and not offend again years after their release.

In Maryland, applicants for pardons must be crime-free for at least five years after they serve their sentences, including probation. Pardons can open doors for past offenders, including eligibility for jobs they would not otherwise be considered for.

"These are people who have been out many years, and they're looking for forgiveness," said Margaret Colgate Love, a Washington-based lawyer who specializes in executive clemency cases across the country. "I think withholding this sort of official forgiveness is not sensible, and it's not safe."

Love said O'Malley's stance is also out of step with a growing number of governors, including Ehrlich, Virginia Gov. Timothy M. Kaine (D) and Mike Huckabee, the former Arkansas governor and Republican presidential aspirant who came to realize the benefits of clemency despite apparent political risks.

And:

In Virginia, Kaine has accelerated the practice of restoring former felons' rights to vote and serve on juries, one of several types of executive clemency stepped up by his predecessor, Mark Warner (D), now a U.S. senator.

Kaine, who is in the final year of his term, granted 3,148 restorations as of June 12, eclipsing the pace of Warner, who granted 3,486 during his four years as governor.

The state's previous two governors, Republicans James S. Gilmore III and George Allen, granted 238 and 460, respectively.

Kaine has also been more active than his predecessors in issuing simple pardons, a form of clemency in Virginia that restores no privileges. He has not commuted more sentences, however.

In Maryland, Ehrlich drew praise from some unlikely sources for his prolific use of clemency powers. Shortly before leaving office in January 2007, Ehrlich issued a statement citing the number of "good people who make mistakes in life" whom he had been able to help.

During his tenure, Ehrlich granted 228 pardons to former convicts and rejected applications from 211 others.

Perhaps more noteworthy were 15 commutations of sentences of current prisoners, including five serving life sentences for murder.

One such case involved a man convicted in a 1968 robbery and beating death in Baltimore. Others involved in the attack had been released, and the man still imprisoned did not wield the bat used in the killing.

Ehrlich also released six prisoners for medical reasons.

His willingness to commute life sentences marked a significant departure from the policy of Glendening, his predecessor, who maintained a "life means life" policy. During his eight years in office, Glendening did not commute any life sentences except for medical reasons.

In granting 134 pardons, Glendening also made a practice of not allowing former convicts to gain access to guns, a privilege that often comes with a pardon. Some of Ehrlich's pardons allowed access to guns, including cases in which applicants said firearms were needed for jobs, such as security guard positions.

In an interview, O'Malley said he is aligned with Glendening's policy. "I do believe that life should mean life," he said.

O'Malley, an opponent of capital punishment, said he would review death penalty sentences "on a case-by-case basis" with the possibility of commuting them to life without parole. He did not elaborate, but aides said such decisions are not likely to be made anytime soon.

Related articles are in StandDown's clemency index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency. 

Missouri Executions on Hold Because of Federal Review

That's the title of the AP report via today's Joplin Globe.  LINK

Executions effectively are on hold again in Missouri.

Incoming Chief Justice William Ray Price Jr. said Tuesday that it’s unlikely the state Supreme Court will schedule any additional executions while a federal stay is in place for the execution of Reginald Clemons.

The 8th Circuit U.S. Court of Appeals put a hold on Clemons’ scheduled June 17 execution after his attorneys challenged Missouri’s lethal injection procedures. They are seeking further court proceedings to ensure Missouri is using competent personnel who will not put inmates in pain with insufficient amounts of anesthesia before lethal injections.

Price said a federal decision in the Clemons case could apply to all Missouri inmates facing execution. So although numerous execution requests are pending, it’s unlikely the court will schedule any more.

Google News carries a longer version of the AP report, "Mo. executions on hold because of federal review," written by David Leib.

The state's incoming chief justice said Tuesday that it was unlikely any executions would be scheduled in Missouri while the courts assess an inmate's lawsuit challenging the state's lethal injection procedure.

Executions had been on hold in Missouri for four years until the state executed an inmate last month. Reginald Clemons' execution was the second scheduled in the state since the courts ruled that lethal injection in general, and the state's three-drug method in particular, was constitutional.

And:

Executions are set by the full seven-member Supreme Court, not just the chief justice, but Price said he doubted the court would "do anything so long as the 8th Circuit is looking at issues of general applicability."

Of the 35 states that allow the death penalty, executions also are effectively on hold because of court cases or moratoriums in California, Delaware, Illinois, Maryland, Nevada and North Carolina, according to the Washington, D.C.-based Death Penalty Information Center.

Missouri, once a leading death penalty state, had conducted no executions from October 2005 until this May.

Price said the Missouri Supreme Court has "tried to move as expeditiously as possible" in setting executions but has been slowed by the federal courts. "We can't help that," he added.

In 2006, a federal judge declared Missouri's lethal injection process unconstitutional after the surgeon who was overseeing executions testified he sometimes transposed numbers and operated without written procedures or supervision.

The Missouri Department of Corrections responded by adopting written procedures detailing the precise amounts and order of the chemicals to be injected. A federal judge upheld the protocol in 2008, and the state Supreme Court in February upheld the process by which Missouri adopted the execution procedures.

Clemons' attorneys argued before the 8th Circuit in February that the state has not shown that it can carry out the procedures correctly. The court, which has not yet ruled on the appeal, granted a stay on June 5 without giving a reason.

Today's Kansas City Star carries a brief item, "Executions in Missouri are put on hold by state high court," by Jason Noble.

In a rare meeting with reporters, state Supreme Court Judge William Ray Price Jr. said his court interpreted the federal court’s stay to apply to all executions in the state.

Related articles are in the lethal injection category index.  Several posts of note include:

• Voices From Missouri
• AP Interview with Dr. Alan Doerhoff
• Missouri Execution Nurse Had Criminal Record
• Missouri Doctor Proud of Role in Executions

More Opinion From California

"Time for Californians to end death penalty," is the title of Janis Gay's OpEd in today's Napa Valley Register.

John Van de Kamp’s commentary in the June 12 edition of the Register calling for the end of the death penalty was spot on.

Van de Kamp was California Attorney General for eight years and after retiring from politics the chair of the California Commission on the Fair Administration of Justice.
The commission met 31 times over several years and examined many aspects of California’s justice system. Only three of those sessions examined the death penalty in California, yet Mr. Van de Kamp was so moved by what he learned he now speaks in a reasoned and clear voice for its abolition.

Others in law enforcement are joining him.
Recently Jeanne Woodford, former San Quentin warden who oversaw the execution of Robert Lee Massie, joined Van de Kamp at an event to talk about her change of attitude. “It is a public policy that devalues our very being and detracts crucial resources from programs that could truly make our communities safe.”

And:

There are more than 670 men on death row in San Quentin. We have executed 13 since 1977 and four times that many have died from natural causes or suicide. The system is broken and it would take a minimum of an additional $95 million annually to fix it. If the governor would commute all the sentences of the men on death row to permanent imprisonment, we will save more than $125 million a year.

At a time when we are making our state less safe by cutting law enforcement, safety departments and victims’ services, it just is crazy not to end the futility and madness of the death penalty.

There is one area in which I would disagree with Mr. Van de Kamp. He says we need a courageous governor to stop the death penalty. It is not the governor’s decision; it will be ours. Unlike most states in the U.S., Californians must vote to end the death penalty. Until we have that opportunity, we can all make it clear to California district attorneys that death penalty trials cost too much and threaten our safety.

Earlier coverage from California begins here.

John Berendt on the Troy Davis Case

Berendt, the author of the monster best-selling book Midnight in the Garden of Good and Evil, set in Savannah, writes the OpEd, "Why the rush to execute Davis?"  It appears in today's edition of the Savannah Morning News.

Time is running out for Troy Davis, who was convicted of murdering Savannah policeman Mark MacPhail in 1989. He now faces the death penalty, despite new evidence that suggests he might actually be innocent.

Seven of the nine witnesses who identified Davis as the shooter have since recanted their testimony in sworn affidavits. Some complain the police pressured them. One of the two witnesses who did not recant became a suspect himself when five new witnesses came forward to say they had heard him confess.

Nonetheless, District Attorney Spencer Lawton refused to order an evidentiary hearing, bucking a growing consensus that the most reasonable course would be to reopen the case - a position supported by former FBI chief William Sessions, former Congressman Bob Barr, Jimmy Carter, the European Parliament, Amnesty International and others.

Last October, before leaving office, Lawton broke his 17-year silence to tell his side of the story in a remarkably combative statement.

He opens by questioning the motives of those who have petitioned for a new hearing: "The only information the public has had in the 17 years since Troy Davis's conviction has been generated by people ideologically opposed to the death penalty."

This is patently untrue. Many of the petitioners, including Bob Barr and Judge Sessions, support the death penalty. They draw the line, however, at executing a defendant who might be innocent.

As to the seven witnesses who recanted their testimony, Lawton says loftily, "This is not believable." He suggests that their affidavits might have been "paid for, or coerced, or the product of a fading memory."

All the more reason to hold a court hearing where the recanting witnesses would be cross-examined under oath.

And:

Despite Lawton's arguments, doubts remain - and so does the question: What is the urgency to execute Troy Davis?

Fortunately, the case is no longer in Lawton's hands but in those of the new DA, Larry Chisolm, who comes to it unencumbered by years of appellate wrangling. One can hope Mr. Chisolm will opt for the humane course and finally let all the evidence be properly heard.

Earlier coverage of the Troy Davis case begins here.

Washington State & Lethal Injection

"State's top prisons doctor quit over execution policy," is the title of a report in today's Seattle Times.

About two years ago, Dr. Marc Stern tripped over a jarring line in Washington's death-penalty policy:

As head doctor for the state's 16,000 prison inmates, he had to ensure the state's lethal-injection table was in working order before each execution.

"This is ludicrous," Stern, then medical director for the Department of Corrections (DOC), remembers telling his boss. "I can't do this. I won't do this. I'm not allowed to do this."

That was the beginning of Stern's unlikely evolution into a hero of the anti-death-penalty movement. He quit the DOC late last year on the eve of a scheduled execution, formally accused the DOC of illegally obtaining the lethal-injection drugs and, last month, was a star witness for death-row inmates challenging their executions in court. He is heralded on blogs and recently received a letter from Denmark's Amnesty International praising his "brave, difficult and recommendable act" of quitting.

Stern says he opposes the death penalty but insists he is no zealot for the condemned. Instead, he felt he had to quit when he found out some of his 700 health-care staffers had become involved in preparations for an execution.

To Stern, medical-ethics policies as far back as the 4th century B.C. — Hippocrates' admonition to do no harm — apply to his actions and to his supervision. If he couldn't play a role, neither could his staff. And he wasn't willing to suggest alternatives, because that would, indirectly, assist in the execution.

But little did Stern know at the time, his staff was far more involved than he imagined, according to depositions taken as part of a pending lawsuit filed by two condemned inmates challenging the constitutionality of the lethal-injection procedure.

And with three potential executions within the next year, the question of medical ethics and executions is likely to grow.

And:

The American Medical Association (AMA), like other medical groups, admonishes physicians from any direct role with lethal injections, including "an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned."

Richard Deiter, executive director of the Death Penalty Information Center, said he knows of a handful of physicians willing to act as roving consultants for lethal injections, but relatively little is known about the involvement of medical staff because of secrecy surrounding executions.

"States are in a bind because they are bound to avoid cruel or unnecessarily painful punishment, and this is a medical procedure, so doing all you can means usually having a doctor involved," Deiter said. "The best course of action is one that is ethically compromised or questionable [for physicians]."

And:

In the days before he resigned in November, Stern consulted with Dr. Robert Greifinger, former medical director of New York's prison system who quit in 1995 after being ordered to be involved in an execution. "It is a moral-code issue," Greifinger said. "It has nothing to do with execution as a means of punishment. It's the physician role."

Since he quit, Stern has taught at the University of Washington and worked as a consultant on a project to improve medical-records access in the state's jails.

Stenson's execution — and two others scheduled for last March — were all stayed, pending various further court actions. In March, the four-member execution team quit for fear their identities would be disclosed in a pending lawsuit.

Blonien, the DOC administrator, said it is possible medical staff from outside DOC would be hired for lethal injections, but, with no executions imminent, that decision has not been made.

But the issue that made Stern quit remains. A doctor who assumed some of his duties has lodged similar objections about involvement of DOC staff. No changes have been made to the state execution policy, but Vail, the DOC secretary, took the issue "under advisement," according to a spokeswoman.

Related articles are in the lethal injection category index.  Earlier coverage from Washington State begins here.  Notable posts include:

• More From Washington State
• Doctor Quits Prison Job Over Execution
• Lethal Injection and Medical Ethics

Failing the Test

That's the title of an editorial in today's Houston Chronicle regarding the Supreme Court's Osborne ruling.  The editorial is subtitled, "Court ruling denies inmates the right to DNA evidence."

Texas is not known as a liberal state when it comes to criminal justice. Yet back in 2001, Lone Star prosecutors and defense attorneys came together to back state legislation requiring the preservation of biological evidence in criminal cases and to allow convicted inmates the right to petition for DNA testing that could conclusively establish their guilt or innocence.

The result is that DNA testing has exonerated 38 wrongfully convicted Texans. Nationwide, the Innocence Project, a prisoner advocacy group, says the tests have established the innocence of 240 inmates serving time for crimes they did not commit, including at least 17 facing execution. Despite those convincing statistics, three states currently lack laws allowing convicts the right to petition for DNA testing and several others permit it only in death penalty cases.

Last week’s 5-4 decision by the U.S. Supreme Court denying a constitutional right to convicted prisoners to test DNA evidence creates an unfair legal disparity. The vast majority of states gives the wrongfully convicted an opportunity to rectify injustice. In the states that don’t, prisoners seeking to prove their innocence are just out of luck.

And:

In its ruling the court has turned its back on those imprisoned in the handful of states that refuse to accept the necessity of such tests. Justice shouldn’t depend on the location where one happens to be tried and convicted.

Coverage of the Osborne ruling begins with this post.