The StandDown Texas Project

Texas Criminal Justice Roundup

Yesterday's Austin American-Statesman carried two news reports of note.  "Judge: Mentally incompetent state inmates being kept in jail too long," is by Andrea Ball.  Here's an extended excerpt:

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley, spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

"Getting people into treatment as quickly as possible is extremely important to us," said Carrie Williams, a spokeswoman for the Department of State Health Services. "The sooner the better. We're always working toward that, and we will explore how we would logistically comply with a final order."

The ruling, issued Monday, stems from a 2007 lawsuit filed by Disability Rights Texas, a federally funded organization that advocates for people with disabilities, including mental illness. In that lawsuit, the group claimed that the health department regularly refuses to take forensic commitments because the hospitals do not have space for them. Once at such facilities, inmates receive psychiatric drugs and other treatments to restore their mental ability to face their criminal charges.

But the delay in getting inmates into hospitals clogs local jails, slows the legal system and violates inmates' rights to due process, said Beth Mitchell, a lawyer with Disability Rights Texas. On Wednesday, the Travis County Sheriff's Office had 18 inmates waiting for a bed at a psychiatric facility.

Related posts are in the mental illness index.

Mike Ward writes, "New study: Texas spends 23 percent more on prisons."

Texas taxpayers pay an average 23 percent more for state prisons than the state’s annual corrections budget reflects, a first-of-a-kind national study shows.

The new report by the Vera Institute of Justice, a New York-based research organization that tracks criminal justice trends, calculates the state’s total costs for its adult corrections and prison programs at $3.3 billion — almost $783 million higher than the $2.5 billion annual budget for the Texas Department of Criminal Justice.

Usually, corrections spending is tracked by comparing the budgets for prison and parole agencies. The Vera Institute study includes additional costs such as contributions to pension and benefit programs and capital costs.

Nationally, corrections spending is the second fastest-growing budget item for states, behind Medicaid. In Texas, the prison system’s budget was trimmed by about 10 percent last year thanks to cuts that were mandated because of a projected revenue shortfall.

The study found that among the 40 states that responded to a survey, the total fiscal year 2010 taxpayer cost of prisons was $38.8 billion, $5.4 billion more than in state corrections budgets for that year.

That is important because as state budgets tighten up, lawmakers in Texas and elsewhere have begun looking at better ways to ensure public safety and provide less-expensive ways of rehabilitating and correcting low-level, non-violent offenders offenders.

With another tight state budget expected in 2013, the costs of state corrections programs — especially the mushrooming cost of providing health care to an aging population of convicts — are expected to be a key topic for debate when the Legislature reconvenes in a year. The cost of prison health care is among the fastest-growing items in the state budget, after Medicaid.

The report, The Price of Prisons: What Incarceration Costs Taxpayers by the Vera Institute of Justice is available in Adobe .pdf format

The Georgia Volunteer

Greg Bluestein posts, "Georgia judge turns down attempt by death row inmate's brother to appeal on his behalf," for AP.  It's via the Republic.

A Georgia judge on Thursday rejected an appeal by a death row inmate's brother that would postpone the condemned man's scheduled execution next week.

The order, signed by Butts County Superior Court Judge Thomas Wilson, clears the way for Nicholas Cody Tate to be executed on Tuesday for the 2001 murders of a Dallas, Ga., woman and her 3-year-old daughter.

Death penalty cases typically take well over a decade to work through the appeals process, but Tate has refused to challenge his conviction and death sentence through habeas corpus appeals. His brother, Dustin Wade Tate, sought to file an appeal on his behalf but Thursday's order concludes he wasn't able to prove the inmate was "incompetent."

The inmate's current and former attorneys won't comment on why Tate, who is 31, won't let them file the appeal, although a transcript from a 2009 hearing highlights his thoughts on the process.

And:

Nicholas Tate pleaded guilty to murder charges in November 2005 and was sentenced to death a month later. His brothers also admitted to committing the violence. They are serving life sentences in prison, and Dustin Wade Tate sent the appeal this month on his behalf.

Nicholas Tate filed a motion for a new trial in 2006, but three years later he had a change of heart. That's when he said he wanted to waive all future appeals, and a trial judge accepted his request, noting that he was coherent and articulate.

His attorneys went ahead with a direct appeal, asking the Georgia Supreme Court to overturn the sentence.

Earlier coverage of Tate's execution date is at the link.  Related posts are in the volunteer index.

Ohio Roundup

"Attorney General: Ohio refining execution policies," is the title of Andrew Welsh-Huggins' latest AP filing on the state's execution protocol.  It's via the Coshocton Tribune.

The state once again is refining its execution policies following a judge's ruling that criticized minor variations to Ohio's procedures, Attorney General Mike DeWine said Thursday.

The announcement comes as another execution was temporarily placed on hold while the debate over these variations works its way through the federal courts.

"We believe we have a constitutional system," DeWine told The Associated Press Thursday. "We want to make it a better procedure pursuant to the federal judge's order."

U.S. District Court Judge Gregory Frost stopped an execution in December because he said Ohio had broken its promise to follow its execution rules to the letter. He criticized the state for not properly recording a death row inmate's medical chart before an execution last fall and for not documenting the use of the lethal injection drug according to the written policies.

And:

The Department of Rehabilitation and Correction could not immediately say Thursday what policies were being refined.

DeWine said that even if the new procedures pass muster with Frost, there are no plans to withdraw an appeal pending before the U.S. Supreme Court. DeWine said there are large constitutional issues that the high court must decide.

The article notes that Ohio's next scheduled execution in February 22nd.  Michael Webb has petitioned the Ohio Parole Board for clemency.

Earlier coverage of Ohio lethal injection issues and the Webb case at the links.  Related posts are in the lethal injection index.

Also from Ohio is news of the state's newly consolidated death row.

"CCI death row receives final inmates," is in today's Chillicothe Gazette.  It's written by Jona Ison.

The final death row inmates have settled into Chillicothe Correctional Institution during the past week.

Mark Hooks, CCI public information officer, said the final inmates arrived Jan. 18. The first 27 death row inmates arrived in Chillicothe on Dec. 6.

"It's really going the way we want it to go. With anything new, there's little adjustments," Hooks said, adding no significant changes were made to the original plans for the move.

Altogether, 136 death row inmates were taken without incident in five trips to CCI from facilities in Mansfield and Youngstown, Hooks said.

And:

CCI is not housing all of Ohio's inmates on death row --the lone female death row inmate remains at the Ohio Reformatory for Women, four remain at the Franklin Medical Center, and six others, including four involved in the 1993 Lucasville prison riot, remain at the Ohio State Penitentiary in Youngstown. The six are considered the highest security risks, meaning they are prone to repeated violent actions against prison staff and inmates.

The move of death row, which was decided in October, is part of the state's overall goal of reducing violence in Ohio's prisons by opening up several hundred needed high-security beds at Mansfield and in Youngstown.

Location was one of the deciding factors in the selection process since CCI is about midway between Southern Ohio Correctional Facility in Lucasville, where executions are performed, and the Franklin Medical Center in Columbus, where inmates needing medical attention are treated.

WSYX-TV has video in "Lawmakers Tour New Chillicothe Death Row," by Steve Levine.

Ohio Lawmakers spent some time in prison, locked up on death row.

House and Senate leaders took a tour of the newly renovated death row area inside the Chillicothe Correctional Institution.

140 inmates were recently transferred there to save state money and open up cell space.

$40,000 in tax money was used to remodel a section of the prison and install additional security equipment.

Earlier coverage of Ohio's death row consolidation begins at the link.  Related posts are in the incarceration index.

CCA Overturns Murder Conviction - Journalists Faulted Forensics

A Texas case examined in a Pro Publica/PBS Frontline report on autopsies and forensics has been overturned by the Texas Court of Criminal Appeals.  The Court's ruling in Ex Parte Lopez is available in Adobe .pdf format.

Pro Publica reports, "Texas Court Voids Conviction in Child Death Case."  It's by by A.C. Thompson.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

"Judge Tosses Conviction Of Texas Man Accused Of Sexually Assaulting Infant," is the NPR report by Joseph Shapiro.

The NPR, Frontline and ProPublica investigation found nearly two dozen cases in the United States and Canada where people were convicted of killing children, but were later cleared when it turned out the accusations were based on flawed or biased work by forensic pathologists and other medical professionals.

Lopez's current lawyers argue that his case should get counted as one of those false convictions. They say Isis Vas died, not because she was beaten and sexually assaulted, but because of an undetected blood disorder that can create bruises and bleeding that mimic child abuse. But no witnesses were called to make that case at the original trial.

On Wednesday, the Texas Court of Criminal Appeals, the state's highest court for criminal cases, ruled that Lopez had received "deficient representation" and that had such witnesses testified on behalf of Lopez, there was a "reasonable probability the jury would not have convicted him."

And:

There is an added risk for Lopez in a new trial. Originally, Lopez was indicted on child sexual assault and murder charges. Prosecutors chose to go to trial on the sexual assault case first, and got a conviction. Jurors only learned that the child had died when it was time for them to determine Lopez's prison sentence. A new trial could also include the murder charge, and prosecutors could seek the death penalty.

Lopez's attorneys are ready to present medical experts who say there was evidence that Isis Vas suffered from a series of problems that suggested she had a rare blood disorder. They will argue that this is consistent with what Lopez told paramedics, doctors and the hospital: That the baby had been sick, lethargic and eaten little from the time her mother brought her to the Lopez house three days earlier.

The Amarillo Globe-News reports, "Sims: Will retry sex assault case."  It's by Bobby Cervantes.

Potter County’s chief prosecutor said Thursday he will retry an Amarillo man whose sexual assault conviction was overturned Wednesday.

47th District Attorney Randall Sims said Ernie Lopez, 41, will be brought back to Potter County within the month to face the 2001 indictment for aggravated sexual assault of a child.

“He’s coming back on the exact charge,” he said. “The case is at the same place any case would be right after it’s been indicted by the grand jury.”

And:

A grand jury in 2001 also indicted Lopez on a capital murder charge, which prosecutors decided to drop in lieu of the sexual assault charge.

Sims did not comment on whether he would pursue additional charges in the case.

“Other than that, I can’t tell you what’s going to transpire when he comes back,” he said

The Pro Publica series on questionalbe forensics is, "Post Mortem: Death Investigation in America."  The PBS Frontline report is also available.  Additional coverage of the series is available.  Related posts are in the forensics index.

Texas Execution

Texas carried out its first execution of 2012, last night in Huntsville.  It was the state's 478th post-Furman execution since 1982, and the 239th execution conducted under the administration of Rick Perry.  He became Governor of Texas in December 2000. 

Texas has the most active death chamber in the nation, accounting for more than 37% of the nation's executions.  To date, there have been two executions in America this year; a total of 1,279 post-Furman executions since 1977.

The Huntsville Item coverage of the execution of Rodrigo Hernandez is, "Hernandez put to death for Bexar Co. murder."   It's by Cody Stark.

According to TDCJ, five execution dates have been set thus far in 2012; one was recently stayed.  The nexte executions are scheduled for February 28th and 29th.

At the Kentucky Legislature

"Ky lawmakers weighing execution halt, task force," is the title of Brett Barrouquere's AP filing.  It's via the Bowling Green Daily News. 

Executions in Kentucky could be halted for a year or more if lawmakers form a task force to study how the system works and correct problems with how death penalty cases are handled, legislators said Wednesday.

Members of the House Judiciary Committee said the proposal will likely be dealt with during the current legislative session, but the details of who would be on the task force and how long executions would stop remain unresolved. The task force idea, though, drew the backing of both death penalty supporters and opponents who heard testimony about how 64 percent of death sentences in Kentucky since 1976 have been overturned.

"This is too ... serious to have this many errors in it," Rep. Brent Yonts, D-Greenville, a death penalty supporter and committee member, told The Associated Press. "You don't take people's lives unless you know what you're doing."

The push for a task force came after members of an American Bar Association team presented lawmakers with a summary of a two-year study of Kentucky's capital punishment system. The study found that state or federal courts overturned the sentences or convictions of 50 of the 78 people sent to death row since the penalty was reinstated in Kentucky in 1976. The ABA committee initially returned its report in December and faulted how the state handles the severely mentally ill, the preservation of evidence and a lack of safeguards against executing the innocent.

Rep. Mary Lou Marzian, D-Louisville, pitched the idea of a task force during the committee meeting and said lawmakers can tackle one issue this session by passing a bill prohibiting the state from executing anyone found to be severely mentally ill.

"In order to be sure you do it right," Marzian said of executions, "you should look at it from all the angles."

Mike Bowling, a former state representative from Middlesboro who sponsored Kentucky's lethal injection bill in 1998, said ABA team members backed the idea of a task force and a halt to executions while lawmakers study the issue and consider possible corrections. Bowling said any suspension would likely last about a year.

Gov. Steve Beshear didn't respond directly to the possibility of a task force, but noted that the state is still under a judge's order stopping all executions.

"In the meantime, we will continue to carefully review and study the 400-plus page report provided by the ABA assessment team," Beshear said in a statement.

And:

Franklin Circuit Judge Phillip Shepherd in 2009 stopped all executions in Kentucky, saying the state didn't have an adequate method of ensuring the mental competency of an inmate once an execution date is set. Shepherd's final ruling in the case is pending. Kentucky has executed three people since 1976, the last in 2008.

Coverage of the ABA's Kentucky review begins at the link; coverage of Kentucky lethal injection issues is also available.  The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Arizona's Dirty Secret: Executions

That's the title of E.J. Montini's column in today's Arizona Republic.

The Arizona Republic's Michael Kiefer reported serious problems with how the DOC got the drugs used in executions. Also, proper background checks were not done on members of the execution team.

And the team member who was administering IVs was a DOC employee who got his training in the military, although he wasn't a licensed medical professional and he hadn't been in the service since 1996.

Meantime, the doctor who served as the team's leader (a doctor must be present at executions) called the court experience "very unpleasant" and, according to court records, said, "It's not really anything that I care to go through again."

We don't know if that means he quit. The Department of Corrections isn't saying, although there are executions scheduled for the coming months.

There is a lot of secrecy surrounding executions in Arizona and, again, I can't imagine why.

First, there is a state law that protects the privacy of the execution team. It reads in part: "The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure."

Why? Executions are legal. The public approves of them. Why should we not know who performs what Arizona deems to be a public service?

Besides, the law also declares that any professional who participates in an execution and happens to be licensed by a board -- for example, a physician -- cannot have his or her license suspended or revoked.

So, why not know who they are? Particularly since we are said to pay the leader of our "execution team" about $6,000 a day, with the average execution requiring two days of practice and one day to carry out the death sentence.

Earlier coverage of Arizona lethal injection issues begins at the link.

A Decision Too Big Not to Be Unanimous

That's the title of a Tampa Bay Times column by Sue Carlton, on the Florida capital sentencing scheme.

We elect judges to make the hard calls, none of them harder than whether a man deserves to die for his crimes.

And could there be a tougher decision than the one Hillsborough Circuit Judge Emmett Lamar Battles will soon make on the fate of convicted cop killer Humberto Delgado Jr.?

Sentencing someone to death should never be easy, but maybe it's clearer when the criminal is a predator, a serial killer, a vicious person driven by greed or meanness. It must also help when the same jurors who said guilty then vote unanimously for the ultimate punishment, since the judge must give their opinion great weight.

The vote to recommend the death penalty for Delgado was 8-4, not unanimous as is required in other states, and more on that in a minute. And his case is a complicated one.

And:

Other states require a unanimous jury vote for death. Ours has the dubious distinction of being the only one that allows a simple majority vote for what might be the biggest decision an average person will ever make.

A pending bill would require that vote to be 12-0. If it goes nowhere because your legislators worry about looking like coddlers of killers, it's too bad. Because decisions like the one before Judge Battles — you know, hard ones — are what we elect lawmakers for, too.

The column also makes it clear that Delgado suffers from mental illness.

Earlier coverage of the jury issue in Florida is at the link.  Alabama and Delaware also allow non-unanimous jury determinations in death penalty cases.

Related posts are in the jury and mental illness indexes.

Georgia Repeal Bill Filed

Today's Atlanta Journal-Constitution reports, "Bill To Abolish Death Penalty Filed in State Senate."  It's by Kristina Torres.

A bill to abolish the death penalty has been filed by five Democrats in the state Senate.

Senate Bill 342 represents a quixotic quest; it isn't likely to gain much support from the Republican majority. But it also follows the Sept. 21 execution of Troy Anthony Davis, whose innocence claims attracted international attention despite his conviction in the killing of a Savannah police officer.

The bill, sponsored by Sen. Lester Jackson, D-Savannah, states the death penalty "has become increasingly problematic as more persons convicted of serious crimes are being found innocent by new evidence, often years or decades after their sentence was imposed, and it is impossible to believe that such errors are limited to noncapital offenses."

Earlier coverage from Georgia begins at the link: a state capitol rally was held earlier this month urging repeal.

Washington State Repeal Legislation

"Lawmakers consider bill to abolish death penalty," the AP report by Rachel La Corte, via the Seattle Post-Intelligencer.

Lawmakers are considering a measure to abolish the death penalty, an effort that has failed in Washington state in recent years but which supporters hope will gain traction after other states have recently either issued moratoriums or outlawed it completely.

The bill, sponsored by Democratic Sen. Debbie Regala, of Tacoma, is set to receive a public hearing Wednesday before the Senate Judiciary Committee.

"We can keep the public safe with putting people in prison for the rest of their life, as opposed to the costly expense of executing them," she said.

Regala also argued that the death penalty doesn't deter someone from committing a murder. She cites her own personal experience with the 1980 murder of her brother-in-law. His killer was never caught. Even if the killer was charged, Regala said she wouldn't have wanted the assailant to face death.

"It doesn't do anything to heal your grief," she said. "It doesn't bring the victim back."

Fiscal documents from a similar bill last year showed that, not counting incarceration costs, a death penalty case runs about $1.2 million in state and local costs, compared with $89,000 for a life-without-parole case.

Lawmakers are in the midst of a 60-day legislative session where they are tasked with patching a projected $1 billion dollar shortfall.

"It's always important and valuable for us to look at public policy and see if it's actually getting us the results that we want," Regala said. "When you're facing an economic crisis, you add an extra lens."

Democratic Gov. Chris Gregoire has not taken a position on the measure, said her spokeswoman, Karina Shagren.

The Seattle Times reports, "Some state lawmakers want to abolish the death penalty, although their proposal faces strong opposition."  It's written by Jordan Schrader.

Add another controversial social issue to the Legislature's growing agenda: Abolishing the death penalty.

Supporters of that cause will convene in Olympia Wednesday to rally behind state Sen. Debbie Regala, D-Tacoma, and other lawmakers trying to end capital punishment in Washington.

Regala knows what it's like to want justice for a violent crime. The Tacoma Democrat said her brother-in-law was killed in 1980 and his body dumped in a Seattle park. The killer was never found, she said.

"It's still painful and hard for me to talk about because the hurt never goes away," Regala said, "but executing that person doesn't solve that problem for me."

Her proposal's prospects seem dim this year, especially in a key House committee. Rep. Steve Kirby, D-Tacoma, says he will withhold his vote, effectively blocking it unless his fellow Democrats can persuade a Republican to join them.

And:

"De facto right now, we don't have a death penalty in the state of Washington," said Sen. Mike Carrell, R-Lakewood.

Carrell said capital punishment is little more than a "bargaining chip" for prosecutors to use to force plea deals. But he thinks it's crucial for prosecutors to have that threat, which was used, for example, to force Green River killer Gary Ridgway to reveal the locations of some of his victims' bodies. Ridgway is serving a life sentence.

The legislation is Senate Bill 6283 and House Bill 2468.

Related posts are in the abolition and state legislation indexes.

Nebraska Federal Judge Confirmed

The Hill reports, "Senate confirms Obama judicial nominee over Republican objections."  It's by Josiah Ryan.

The Senate confirmed John M. Gerrard of Nebraska to be United States District Judge for the District of Nebraska 74-16 on Monday in its first vote of the year.

Sen. Jeff Sessions (D-Nev.) lead the Republican opposition to the judge stating Gerrard was a good man but had shown signs of holding allegiance to his personal view on the death penalty over the law during his years as a member of the Nebraska Supreme Court.

And:

Both of Nebraska's senators, Ben Nelson (D) and Mike Johanns (R), defended the judge however, claiming Gerrard had proven to his dedication to the rule of law. 

“In all cases, I have supported candidates for the judiciary who convinced me they would follow the law, and would not manipulate it to promote a personal or activist agenda,” said Nelson, speaking from the Senate floor on Monday.

"Gerrard confirmed to federal bench," by Joseph Morton for the Omaha World-Herald.

The U.S. Senate confirmed Nebraska Supreme Court Judge John Gerrard as the state’s next federal judge.

The Senate voted 74 to 16 Monday in favor of the nomination, which was supported by all four senators from Nebraska and Iowa.

President Barack Obama nominated Gerrard to replace U.S. District Judge Richard Kopf, who took senior status last month.

And:

Gerrard was in the majority for the 4-3 decision in 2007 to put the Carey Dean Moore execution on hold temporarily while the court considered another death row inmate’s claim that the electric chair was unconstitutional.

The decision was unusual because Moore wasn’t seeking the delay. Rather, the high court acted on its own motion, saying there was a high obligation to carry out the death penalty lawfully.

The court later found use of the electric chair unconstitutional, and the Legislature then approved the use of lethal injections. Moore remains on death row.

Also:

Sen. Ben Nelson, D-Neb., said Gerrard and the rest of the court had ruled against a particular method of execution but upheld the death penalty itself. He said Gerrard was a member of the court when it set dates for other executions that were carried out.

“In every instance Justice Gerrard has ruled on the death penalty, he has been balanced, even-handed and, most important, faithful to the Constitution,” Nelson said.

Earlier coverage of federal judicial nominations begins at the link. Related posts are in the judiciary and politics indexes.

The Carlton Gary Case in Georgia

"Stocking strangler case: Judge cuts federal funds for Carlton Gary's defense," is the Macon Telegraph report written by Tim Chitwood.

U.S. District Court Judge Clay Land has cut federal funding for convicted Stocking Strangler Carlton Gary’s defense team while arguments over DNA testing evidence from the serial killings continue in Muscogee Superior Court.

Land’s order set Dec. 31 as the cut-off date after which the federal government no longer would fund Gary’s defense, which is not entitled to such support in state judicial proceedings, the judge wrote.

Gary’s lead attorney Jack Martin said the defense has appealed Land’s decision to the 11th Circuit Court of Appeals, which has scheduled arguments for Feb. 15. The defense maintains the Superior Court proceedings are a continuation of Gary’s death-penalty appeals, he said.

Land disagrees. The judge wrote that were Gary to seek a clemency hearing before the Georgia Board of Pardons and Paroles, the feds likely would pay for that, as it’s an additional step in his federal appeals process. But they will not pay for defense attorneys’ trying to get Gary a new trial in Muscogee Superior Court, Land said.

Earlier coverage of the case is at the link.

Texas Execution Scheduled for Thursday - UPDATED

Texas is scheduled to carry out its first execution of the year, Thursday night in Huntsville.  It would be the state's 478th post-Furman execution since 1982. 

It would be the 239th execution conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

The San Antonio Express-News reports, "Killer sticks to story as execution looms," by Eva Ruth Moravec.

In Rodrigo Hernandez's mind, he's a family man who respects women, has never been in trouble, and believes strongly in Christianity.

But a lengthy criminal record and two capital murder cases — he was convicted in the 1994 rape and murder of a San Antonio woman and charged in the 1991 rape and murder of a homeless woman in Grand Rapids, Mich. — paint another picture.

Hernandez is set to be executed Thursday for the 1994 capital murder of Susan Verstegen, 38, pending the outcome of a clemency petition before the Texas Board of Pardons and Paroles and a writ before the Texas Court of Criminal Appeals.

UPDATE - AP reports, "Texas parole board won't block Thursday execution."  It's via KTRK-TV.

The Texas Board of Pardons and Paroles has rejected a clemency petition that sought to keep convicted murderer Rodrigo Hernandez from the death chamber later this week in Huntsville.

The board voted 7-0 Tuesday against Hernandez' request.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CST), Thursday.

TDCJ notes that six additional executions are already scheduled for 2012, including one on February 1..

To date there hsa been one execution in the nation this year; a total of 1,278 post-Furman executions since 1977.

Also From Ohio

"Condemned Ohio man claims innocence in arson death of 3-year-old son, asks governor for mercy," is by AP Legal Affairs Writer Anderw Welsh-Huggins.  It's via the Republic.

A condemned Ohio man scheduled to die next month says he's innocent of the arson death of his 3-year-old son and is asking the governor for mercy.

Michael Webb says new arson science disproves the state's argument about where the 1990 fire began, and he says the state didn't turn over evidence at trial about an alternative suspect.

Attorneys for the 63-year-old Webb planned to make their case to the Ohio Parole Board Tuesday in Columbus.

Joe D'Ambrosio Becomes Nation's 140th Death Row Exoneree

Today's Cleveland Plain Dealer reports, "U.S. Supreme Court closes case against Joe D'Ambrosio for murder."  It's written by Pat Galbincea.

The 23-year-old case against Joe D'Ambrosio, the former death row inmate now living in North Royalton, has finally ended.

That's because on Monday, the U.S. Supreme Court refused to hear the state's appeal of a 2011 ruling blocking the retrial of D'Ambrosio - thereby ending the case.

D'Ambrosio becomes the sixth Ohio man to be exonerated from death row and 140th nationally.

D'Ambrosio, who turned 50 in December, was convicted of the 1988 murder of Anthony Klann in Cleveland. In 2009, a federal judge ruled that Cuyahoga County prosecutors failed to provide 10 pieces of evidence that could have exonerated D'Ambrosio at his trial. He was released after 21 years in prison on death row.

Last August, the appellate court in Cincinnati upheld U.S. District Court Kate O'Malley's ruling forbidding the reprosecution of D'Ambrosio - but the Ohio Attorney General appealed to the U.S. Supreme shortly afterwards.

Rev. Neil Kookoothe, the Catholic priest at St. Clarence Church in North Olmsted who helped rescue D'Ambrosio from prison, was pleased to hear that the case has closed.

"It's a thrill to hear this good news, but to wait 23 years for this day is inexcusable," Kookoothe said. "Justice denied this long isn't justice, but it also shows the system works...even if it is too slow of a process. It's a good day for Joe, his lawyers, and everyone who has supported him."

"US Supreme Court decision means man who spent 21 years on Ohio's death row will remain free," is the AP filing by John Seewer.  It's via the Republic.

"Today was 23 years in the making," D'Ambrosio said in a statement that also thanked his attorneys. "Justice has finally prevailed."

A federal judge ruled in 2006 that prosecutors withheld from D'Ambrosio and his lawyers 10 key pieces of evidence that might have exonerated him.

D'Ambrosio was freed and awaiting trial in 2010 when a federal judge then ruled that D'Ambrosio cannot be retried because a key witness had died, leading to the dismissal of the murder charge against him.

Death penalty opponents say the case shows why Ohio should get rid of the death penalty.

"This case exemplifies one of the most serious flaws of our death penalty system, the dangerous risk Ohio runs of executing someone for a crime he didn't commit," Kevin Werner, executive director of Ohioans to Stop Executions.

"Court: Man freed from Ohio death row after 2 decades can't be retried," is the MSNBC report.

“What this case clearly shows is that the death penalty system in Ohio with all of its safeguards still makes mistakes and I think we’re just relieved that Joe D’Ambrosio had some extraordinary attorneys who worked tirelessly for … 20, 30 years to prove that he was not guilty,” Kevin Werner, executive director of Ohioans to Stop Execution, told msnbc.com.

“This is a moment that really should give Ohio officials pause because right now they’re fighting over the lethal injection process and how those rules are or are not followed at the same time that the state Supreme Court has commissioned a task force to assess how fair and accurate is the death penalty system, and I think Joe D’Ambrosio’s case is a pretty clear indication that the death penalty system is not working,” he added.

The number of death sentences imposed in the U.S. has taken an “historic drop” -- about 75 percent -- over the last 15 years, accompanied by a nearly 60 percent decline in the number of executions, the Death Penalty Information Center said in its annual report in December.  

Recent polls showing a withering of support for capital punishment over controversial cases like that of Troy Davis, who was executed in Georgia in September. The decline in the use of the death penalty also has likely been influenced by states’ worsening financial conditions, said Richard Dieter, the center’s executive director.

There is more on the case at the Death Penalty Information website.  DPIC maintains a list of death row exonerations.  Related posts are in the exoneration index

Ohians to Stop Executions is urging Ohio Governor John Kasich to impose a moratorium on executions in the state.

Recent coverage from Ohio includes problems with the state's lethal injection protocol, a meeting of the state's Joint Task Force to Study Administration of the Death Penalty, as well as comments by Ohio Supreme Court Justice Paul Pfeifer on abolishing capital punishment.   In December an Ohio legislative hearing was held on capital punishment issues.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; moreon that ruling via Oyez. Related posts are in the prosecutorial misconduct index.

Indigent Defense Roundup

From Georgia, the Macon Telegraph reports, "Latest invoice for death penalty case concerns Houston commission chair."  It's written by Becky Purser.

A bill for the county’s share of the capital murder defense of two Eatonton men accused of slaying a Warner Robins man for his car raised a red flag when it came across the desk of Houston County Commission Chairman Tommy Stalnaker.

“I can see this expense getting out of hand as far as local governments are concerned,” Stalnaker said.

The $18,936.88 bill from the Georgia Public Defender Standards Council also drew the ire of Commissioner Tom McMichael.

And:

The bill is for the county’s share of the indigent defense of Joshua Dupree Rounsoville, 24, and Stewart Calvert Brannon, 22, who are accused of the August 2008 fatal shooting of Maurice Smith, a 25-year-old maintenance worker for the Houston County Board of Education.

The total cost for the defense of Rounsoville so far has been $188,935.71, with the total cost for Brannon at $44,718.10, according to figures provided to the county by the Georgia Public Defender Standards Council. Brannon initially hired his own attorney but ran out of money, and a capital defender was assigned to him, Houston County Superior Court records show.

Under state law, the county is responsible for 25 percent of the defense expense once the state agency has expended $150,000 and then for 50 percent of the cost once the agency has spent $250,000.

For the first time since the county has been billed for its portion of Rounsoville’s expense, the cost of defending him and Brannon were lumped together -- the first red flag for Stalnaker.

Thus far, the cost for defending Rounsoville and Brannon totals $233,653.81, and that’s significant, Stalnaker noted, because the combined cost nears the $250,000 threshold for when the county becomes responsible for 50 percent of new costs. Also, the county had not been incurring an expense for Brannon, whose case so far is well below the $150,000 threshold, Stalnaker said.

Earlier coverage of Georgia indigent defense issues begins at the link.

From South Dakota, "Public defender dismissed amid murder cases," is by John Hult for the Sioux Falls Argus Leader.  It's a lengthy examination of the role of public defender in capital cases, involving models from other states.

Dwight Ree could spend his entire adult life in prison if he’s convicted of murder.  James McVay could be executed.

The dismissal of a veteran public defender a little more than a month ago leaves both men to fight those ultimate penalties in court without the aid of their primary and most familiar advocate.

The ouster of Jeff Larson could have far-reaching implications for McVay, Ree and the dozens of others the 57-year-old represented when he found his things piled up outside the door of the public defender office the week of Dec. 12.

It also indirectly could affect hundreds of other defendants because the young lawyers he worked with no longer will have Larson’s 30 years of experience to guide them.

Representing clients in death penalty cases can be challenging and emotionally taxing. Many states have strict requirements for public defenders, and many law firms put only their most experienced lawyers on such cases. Asking less experienced lawyers to take on the cases could slow the system and raise issues about the quality of their defense.

Larson’s departure comes amid six unresolved homicide cases in Minnehaha County, all of which are being defended with county resources, including the two death penalty cases. It’s an unusually high number for the county.

Related posts are in the cost and indigent defense indexes.

Alabama Roundup

Today's Birmingham News carries the editorial, "U.S. Supreme Court sends much-needed message to Alabama about how it treates poor defendants charged with capital crimes."

The U.S. Supreme Court sent the state of Alabama at least two messages last week when justices ruled against the state in the case of Death Row inmate Cory Maples, who missed a deadline to appeal after his lawyers dropped his case without telling him.

First, the high court made clear the state and courts were wrong in denying Maples his day in court. Maples missed a 42-day window to file an appeal after a state court judge ruled against his claims of ineffectiveness of counsel and other problems at trial. But the missed filing was through no fault of his own. Two pro bono lawyers had abandoned Maples' case without notifying him or the state. Copies of the trial court's order sent to them at their old law firm were returned unopened to the court clerk, who did nothing.

"Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," the court said in its 7-2 ruling. "In these circumstances, no just system would lay the default at Maples' death-cell door."

But Alabama's system did blame Maples. Which brings us to the court's second, and more important message: Our state's system of capital punishment is not a just system.

Justice Ruth Bader Ginsburg, who delivered the opinion, made that clear in her criticism of how the state provides -- and in some cases doesn't provide -- lawyers for poor defendants charged with capital crimes.

Among the problems she cited: Alabama requires that a lawyer appointed to defend a death-penalty case only be a member of the state bar and have five years' experience practicing criminal law; no experience with capital cases is required; the state doesn't provide, or require, professional education or training in capital cases; appointed lawyers are underpaid; and Alabama is "nearly alone among the states" in not guaranteeing that poor Death Row inmates have legal representation in postconviction proceedings -- those state and federal appeals after the initial round of "direct" appeals.

The opinion in Maples v. Thomas is available in Adobe .pdf format.  Earlier coverage of the Supreme Court ruling in the Alabama case begins at the link.

"Dothan man to be sentenced for third time in slayings," is the title of a report in the Dothan Eagle written by Matt Elofson.

Lawyers expect to select a jury Monday for the third time to sentence a Dothan man for the slaying of three people.

Attorney David Hogg said his client, 40-year-old Jerry Jerome Smith, had his first two sentences reversed.

And:

The death sentence was reversed because of comments made by some of the relatives of victims in the murders during the jury selection of the trial.

United States v. Jones

The Supreme Court ruling in United States v. Jones is available in Adobe .pdf format.

"Justices Say GPS Tracker Violated Privacy Rights," is Adam Liptak's post at the New York Times.

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants. 

The case decided Monday, United States v. Jones, No. 10-1259, concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

"High court: warrant needed for GPS tracking," is the AP filing by Pete Yost and Jesse J. Holland.

The decision was a defeat for the government and police agencies, and it raises the possibility of serious complications for law enforcement nationwide, which increasingly relies on high tech surveillance of suspects, including the use of various types of GPS technology.

And:

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor the vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote. He concluded that the installation of the device on the vehicle without a warrant was a trespass and therefore an illegal search.

All nine justices agreed that the GPS monitoring on the Jeep violated the Fourth Amendment's protection against unreasonable search and seizure, a decision the American Civil Liberties Union said was an "important victory for privacy."

Washington lawyer Andy Pincus called the decision "a landmark ruling in applying the Fourth Amendment's protections to advances in surveillance technology." Pincus has argued 22 cases before the Supreme Court and filed a brief in the current case on behalf of the Center for Democracy and Technology, a civil liberties group with expertise in law, technology, and policy.

The Democratic chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, said the court's decision is "a victory for privacy rights and for civil liberties in the digital age." He said the ruling highlights many new privacy threats posed by new technologies. Leahy has introduced legislation to update the Electronic Communications Privacy Act, a 1986 law that specifies standards for government monitoring of cell phone conversations and Internet communications.

Scalia wrote the main opinion of three in the case. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Sotomayor also wrote one of the two concurring opinions that agreed with the outcome in the Jones case for different reasons.

"Supreme Court limits police use of GPS to track suspects," by James Vicin for Reuters Legal.

Civil liberties groups were concerned that vast amounts of personal data can be collected from GPS devices and police might use other technologies such as beepers, cellphones, computers, surveillance cameras and satellites to monitor people.

They voiced alarm at giving the government unlimited and unprecedented new power to track people in public through the use of GPS devices or other surveillance technology without court permission.

The case began in 2005 when the police went to a public parking lot in Maryland and secretly installed a GPS device on a Jeep Grand Cherokee used by a Washington, D.C., nightclub owner, Antoine Jones.

Jones was suspected of drug trafficking and the police tracked his movements for a month. The resulting evidence played a key role in his conviction for conspiring to distribute cocaine.

The appeals court had thrown out Jones' conviction and his life-in-prison sentence, and ruled prolonged electronic monitoring of the vehicle amounted to a search.

South Dakota Legislation Update

The Sious Falls Argus Leader reports, "Attorney general argues for limits on death penalty appeals."  It's written by Steve Young.

South Dakota’s top prosecutor has introduced Senate Bill 42, an attempt to curb what he calls frivolous and repetitive delays at the back end of the state’s criminal justice system. Patterned after similar federal law, Jackley’s bill puts a cap on how often indigent defendants can argue that their court-appointed lawyers are ineffective, and the time frame in which they can make that claim.

It is legislation, defense lawyers and law professors counter, that is an assault on individual constitutional rights.

Jackley’s bill passed 5-1 out of the Judiciary Committee after it was amended to give defendants two years after their direct appeal to the state Supreme Court to argue ineffective counsel and make other claims. Jackley first had wanted the statute of limitation at one year, as it is at the federal level. The proposal also was amended to allow claims to be made after two years if new evidence arises or if changes to constitutional law would affect the conviction and sentence.

It now goes to the full state Senate.

And:

While defense lawyers seem amenable to improvements, they’re not lining up yet behind this proposal, said Lindsey Riter-Rapp, a Pierre lawyer and lobbyist for the state Association of Criminal Defense Lawyers.

Riter-Rapp said her group could accept a two-year period for habeus corpus action, which is the same amount of time defendants have to come in after they have been convicted and ask for a modification of their sentence.

Defense lawyers also were glad to see protections added to the proposal to allow for a habeas action to come after the two-year period if new evidence arises, or if a Supreme Court ruling changes a law affecting a defendant’s case.

But Riter-Rapp and others are particularly troubled by Jackley’s insistence on limiting defendants to one habeas action questioning the effectiveness of their trial or appellate lawyers. They’re also bothered by language that gives judges discretion in deciding whether to appoint counsel for a post-conviction claim.

Donald E. Wilkes Jr., a professor at the University of Georgia School of Law for 40 years and author of five books on post-conviction remedies, said more than 30 states have enacted similar time restraints since the federal law was enacted in 1996. But few states are removing a statutory right to counsel in post-conviction proceedings as Jackley is seeking.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

Earlier coverage of the South Dakota legislation to limit appeals is at the link.

Kansas Repeal Legislation

"Tuesday forum to focus on repeal of state’s death penalty law," is Ron Sylvester's Wichita Eagle report.

As a bill to repeal the death penalty languishes in the Statehouse, a local church-women’s group hopes to help revive legislators’ interest on the issue.

The United Methodist Women’s group at College Hill United Methodist Church in Wichita is sponsoring a forum on the death penalty Tuesday. It follows a daylong rally last November at Wichita State University by the Kansas Coalition Against the Death Penalty, which said it is seeing similar programs sprouting up across the state.

“The death penalty has reached a point where it’s outdated,” said Jeff Wicks, an attorney with the Kansas Death Penalty Defense Unit and one of Tuesday’s speakers. “It comes from a time when we didn’t have the ability to maintain law and order, as we do now.”

The forum hopes to generate interest in House Bill 2323, which would abolish the death penalty in Kansas in favor of life in prison without the possibility of parole. The bill was introduced last February and remains in the House Committee on Federal and State Affairs.

Rep. Steve Brunk R-Wichita, chairs the committee and said he doesn’t foresee any action on the bill this year.

“We’ve got a lot of issues before us this session, and so far this hasn’t risen to the top 10,” Brunk said. “I just don’t see it gaining a lot of traction in the legislature.”

And:

Death penalty opponents say capital punishment is a budget issue that could save the state millions of dollars. Two studies in the past decade show it costs the state about four times as much to pursue the death penalty as it does to keep someone in prison for life.

“It’s not just the state, but it costs the county, too,” said Donna Schneweis, chair of the board for the Kansas Coalition Against the Death Penalty. “The county bears the brunt of the costs of these prosecutions.”

More on the Kansas cost factor at the link; also, coverage of Kansas repeal legislation in 2010.  Related posts are in the state legislation index.

 here: http://www.kansas.com/2012/01/23/2186507/tuesday-forum-to-focus-on-repeal.html#storylink=cpy

Read more here: http://www.kansas.com/2012/01/23/2186507/tuesday-forum-to-focus-on-repeal.html#storylink=cpy

MA

Lethal Injection Roundup From Arizona, Ohio

"Death penalty hurdle remains," is the title of Michael Kiefer's Arizona Republic report.

Arizona has two executions scheduled in the next seven weeks, but it remains in question whether there is an executioner to carry them out.

Robert Moormann is scheduled to die on Feb. 29, and Robert Towery is scheduled for March 8. Both are convicted murderers who have been on death row for 20 years or more.

But the medical doctor who supervised the state's last five executions reportedly quit last October during a deposition for a lawsuit that questioned his fitness for the job.

The Arizona Department of Corrections will not say if another doctor has been hired, or if the last doctor actually quit. All its spokesmen will say is that the department will abide by court orders.

The state's court-approved protocol for lethal injection requires a medical team led by a licensed physician to administer the drugs.

The state's execution protocol is the reason the doctor supposedly quit.

And:

In Arizona, the identities of executioners are protected by state statute. During last month's bench trial over the protocol in federal court, the courtroom was sealed when the doctor testified.

What is clear from the redacted transcript of court testimony and depositions from last October and from 2009 is that the executioner is a former military doctor who served in Iraq, has emergency-room experience and now works in an outpatient clinic for the federal government.

He makes $160,000 a year, according to court records, and was paid $18,000 in cash for each of the executions he carried out.

Initially, he was introduced to the process by a former supervisor in a military setting who had been contacted by the Department of Corrections. He observed the execution of Robert Comer in 2007.

In fall 2010, he was contacted by Ryan and asked if he would take the job. He served as medical-team leader on five subsequent executions in 2010 and 2011

Earlier coverage of the lethal injection protocol in Arizona begins at the link.

"Ohio appeals to US Supreme Court on lethal injection policy after killer’s execution halted," is the AP report via the Washington Post.

The office of Attorney General Mike DeWine says that, without Supreme Court action, Ohio is in danger of having dozens of executions delayed on a case-by-case basis.

The appeal filed Friday asks the court to let Ohio put to death 45-year-old Charles Lorraine, sentenced to die for fatally stabbing an elderly couple in Warren in 1986.

U.S. District Court Judge Gregory Frost halted Lorraine’s execution on Jan. 12, saying the state failed to properly document the drugs used in its last execution in November and failed to review the medical chart of the inmate who was put to death.

Ohio had already announced its intent to appeal Judge Frost's ruling, which had been upheld by the U.S. Court of Appeals for the Sixth Circuit.  Earlier coverage from Ohio begins at the link.

Related posts are in the lethal injection and physician indexes.

New Mexico Governor Again Calls for Reintroduction of Death Penalty

UPDATE - "Death penalty push unwise," is the blog post at the El Paso Times' NM Capitol Report blog post by Milan Simonich.

Gov. Susana Martinez this week called for reinstatement of the death penalty.

Neither her friends nor her foes was surprised.

Martinez, 52, is an ambitious Republican who used to be a prosecutor. Capital punishment fits into her political platform, though she did not pursue a death sentence in the most notorious case she prosecuted -- the rape and murder of Katie Sepich.

Martinez's interest in reviving death sentences did not create much anxiety for a simple reason. It seems that everyone at the Capitol knows she has almost no chance of succeeding.

Martinez's administration got nowhere on a death penalty bill last year, when the Legislature met for 60 days. This year's session is 30 days.

Moreover, it was only three years ago that New Mexico legislators outlawed the death penalty and then-Gov. Bill Richardson signed the bill. The worst criminals now face a penalty of life in prison with no chance of parole.

Most of what has happened since shows that legislators and Richardson made good decisions.

Death penalty prosecutions are costly. Appeals can last for decades. Worst of all, police and prosecutors can be wrong in the biggest cases, even with limitless government resources available to them.

Money should not be the primary consideration in this debate, but the truth is that states are struggling and death-penalty prosecutions are the most expensive cases of all.

The Las Cruces Sun-News reports, "Governor seeks reinstatement of death penalty."  It's by Milan Simonich.

Gov. Susana Martinez, a former district attorney, proposed Thursday that New Mexico legislators consider a bill to reinstate the death penalty.

But the lawmaker most prominent in the repeal of capital punishment in New Mexico said Martinez's idea would go nowhere.

"How many jobs is that bill going to create?" asked state Rep. Gail Chasey.

Chasey, D-Albuquerque, led a successful movement to repeal of the death penalty in 2009. She said the economy should be the main focus of legislators during this 30-day session.

Still, Chasey said she was not surprised by Martinez's message stating that she would be receptive to a death penalty bill. But Chasey said such legislation did not appear to be a priority for anyone, even the governor.

"She didn't even mention it in her (State of the State) speech," Chasey said.

New Mexico was the 15th state to outlaw capital punishment, though the repeal was not retroactive. Two men previously sentenced remain on death row.

Also from New Mexico, "Lawmaker Wants Voters To Decide On Death Penalty," is an AP filing, via public radio station KRWG-FM.

A state legislator proposes reinstating the death penalty in New Mexico, but allowing voters to decide whether that should happen.

Republican Rep. Dennis Kintigh of Roswell has introduced a constitutional amendment to restore the death penalty in certain circumstances, including the murder of a police officer.

New Mexico abolished the death penalty in 2009, replacing it with a sentence of life in prison without the possibility of parole.

Kintigh has introduced similar legislation in the past.

Earlier legislative coverage from New Mexico begins at the link.

An Update From Georgia

"Condemned inmate's brother files appeals," is the title of Bill Rankin's Atlanta Journal-Constitution report.

The brother of Paulding County killer Nicholas Cody Tate is asking state and federal judges to allow him to pursue appeals on his condemned brother's behalf.

Tate, convicted of killing Chrissie Williams and her 3-year-old daughter Katelyn in 2001,  is set to be executed by lethal injection at 7 p.m. on Jan. 31.

In November 2005, Tate pleaded guilty to the crimes, waived a trial by jury and was sentenced to death by a Paulding judge after a sentencing hearing. Tate has since exhausted his automatic appeals, but he has yet to file his habeas corpus appeals, which are routine in capital cases.

This week, Tate's younger brother, Dustin Wade Tate, who was a co-defendant in the case and serving a life sentence for the crimes, has filed motions in state and federal court to litigate final appeals on his brother's behalf.

According to court filings, if a death-row inmate declines to pursue available appeals due to a mental disease or defect, another person who has a significant relationship with the condemned inmate can pursue them on his behalf. The filings cite an affidavits from mental health experts who say Nicholas Cody Tate was severely abused during his childhood and likely suffers from post-traumatic stress disorder.

The state Attorney General's Office is asking for these filings to be dismissed.

Earlier coverage of Tate's case is at the link. Related posts are in the volunteer index.

New Questions From Arizona on Lethal Injection Protocol

"Questions raised over Arizona's execution team," is the AP report by Amanda Lee Myers.  It's via the Arizona Republic.

An attorney for a death-row inmate in Arizona is raising questions about who will carry out the state's executions after the physician who conducted the last five said he won't do them anymore and the other execution team member's arrest record came to light.

In a letter to the Arizona Department of Corrections sent late Wednesday, attorney Dale Baich asked whether a new execution team was in place for the state's upcoming executions, and if so, whether the department has conducted proper background checks and verified the medical licenses of the team.

Baich also pointed out that with the former medical team leader bowing out, the department was left with the team's only other member -- a Yuma-based corrections officer who lacks a medical license and has an arrest record for drunken driving and public intoxication.

The officer assisted the medical-team leader on the state's last five executions by inserting intravenous lines.

The identities of both medical team members have been withheld for their protection.

Arizona Department of Corrections spokesman Bill Lamoreaux could not immediately say Thursday whether a new execution team has been chosen.

The qualifications of the medical team and other aspects of the way Arizona conducts its execution were the subject of a recent lawsuit filed by Baich arguing the state's execution practices violate constitutional protections against cruel and unusual punishment.

And:

But Baich lost his arguments Dec. 21 when Judge Neil Wake dismissed his lawsuit, saying the state did not violate inmates' constitutional rights by deviating from written execution protocol. Baich is appealing the decision to the 9th U.S. District Court of Appeals in San Francisco.

Baich said Thursday the correction officer's arrest record "is a concern" and that his background administering IVs in the military doesn't qualify him to help carry out executions, especially since his service ended in 1996 and he is not a licensed medical professional.

"It's clear that the state did not follow the protocol in the last five executions in terms of selecting the medical team," Baich said.

Meanwhile, the execution-team leader who was in charge of the last five executions, most recently on July 19, said during an hours-long deposition in October that he would no longer participate in executions and didn't know anyone who could take over for him.

The article also notes two Arizona execuction dates set for February 29 and March 8..

Earlier coverage of Arizona lethal injection issues begins at the link.

Friday

I'll be out of the office this morning.  Posts will resume after lunch.  Take this opportunity to visit the Daily Must Reads and other sites in the left-column webroll.

Additional Coverage of Maples v. Thomas - Updated

"Supreme Court grants death row inmate chance for new appeal," by David G. Savage in the Los Angeles Times.

The Supreme Court, citing a "perfect storm" of missing lawyers and unopened letters, gave an Alabama death row inmate a new chance to appeal his conviction in a case that sharply split the conservatives on the bench.

Corey Maples had been "abandoned" by his two New York lawyers who left their law firm without telling him and missed the deadline for filing his appeal. "In these circumstances, no just system would lay the default at Maples' death-cell door," Justice Ruth Bader Ginsburg wrote for a 7-2 majority.

It was the second time in two weeks the high court rebuked prosecutors and judges from the South in a case of justice gone wrong. In both cases, Chief JusticeJohn G. Roberts Jr.and JusticeSamuel A. Alito Jr.sided with the majority in ruling for the defendant.

And:

Virginia Sloan, president of the Constitution Project, a bipartisan legal reform group, praised the ruling for putting "justice over technicalities and fundamental fairness over procedural rules."

Death penalty foes have pointed to Alabama as having a "broken" system of capital punishment. Its trial lawyers are poorly paid and often are newcomers to capital cases. No state funding is provided for appeals. Most defendants must rely on out-of-state law firms that volunteer to represent them.

CNN posts, "Justices rule for death row inmate after legal mistakes," by Bill Mears.

This high court victory for Maples does not mean he will eventually receive the new trial he is seeking. Because so much of the facts and testimony of the various parties remains in question -- particularly the actions of the county clerk and the in-state attorney for Maples -- lower state and federal courts could be wrestling with this case for years.

I have to also point readers to Jeff Gamso's post, "Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia," at his Gamso - For the Defense blog.

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation. 

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

Gamso's blog is one of the left-column Essential Law Blogs.  Visit it for more of his takes on criminal justice.

Coverage of yesterday's Supreme Court ruling is at the link.  The opinion in Maples v. Thomas is available in Adobe .pdf format.

Georgia Roundup

"Georgia Supreme Court chief urges lawmakers to fund new clerk for death penalty cases," is an AP report via the Republic.

The Georgia Supreme Court is asking state lawmakers to fund a new clerk who would only work capital cases.

Chief Justice Carol Hunstein on Wednesday urged lawmakers to approve the request for about $80,000 to hire a new capital case docket clerk for those cases.

She said "I don't think anyone outside the judiciary understands how complicated and complex these cases are."

Georgia executed four people in 2011, including Troy Davis, whose claims of innocence attracted international attention.

There is also news of an execution date set for a volunteer, an inmate who has waived his appeals.  "Ga. death row inmate refuses to file habeas appeal," is by AP writer Greg Bluestein.  It's via the Rockdale Citizen.

Nicholas Cody Tate could delay his execution at the end of this month for years if he filed a new round of appeals. But his refusal to do so has made his death sentence for the murders of two people one of the fastest-moving in recent memory in Georgia.

In the glacial-paced world of death penalty law, Tate’s death sentence for the 2001 killings of a woman and her 3-year-old daughter moved through the appeals process quickly. That’s because he refused to challenge his conviction and sentence by filing a habeas appeal in state or federal court.

His current and former attorneys won’t comment on why Tate, who is 31, won’t let them file the appeal. But the transcript from a 2009 court hearing helps illuminate his thoughts on the process.

“You caught me red-handed,” he said during the hearing, when he waived his motion for a new trial. “None of my rights were violated ... I choose to waive any and all future appeals.”

A Paulding County judge last week cleared the way for his execution, and state officials on Tuesday scheduled the lethal injection for Jan. 31 at 7 p.m. Death penalty opponents say Tate’s case highlights the problems with capital punishment.

“The appeals process exists as a safeguard to protect the integrity of the judicial process,” said Kathryn Hamoudah, who chairs Georgians for Alternatives to the Death Penalty. “Proceeding without is tantamount to allowing state assisted suicide.”

"Tate execution set for Jan. 31," is an AP brief, also via the Rockdale Citizen.

The Georgia Department of Corrections has set a Jan. 31 execution date for Nicholas Cody Tate, who killed a Paulding County woman and her daughter in 2001.

Tate is to be put to death by lethal injection at 7:00 p.m. at the Georgia Diagnostic and Classification Prison in Jackson.

And:

Tate pleaded guilty to the murders in 2005 and waived a trial by jury. After a sentencing hearing, the trial judge sentenced Tate to death. Tate's case is highly unusual in that he has not challenged his conviction and sentence through a petition of habeas corpus in either state or federal court.

Related posts are in the judiciary and volunteer indexes.

South Dakota Legislation Aimed at Limiting Appeals

Today's Sioux Falls Argus Leader reports, "Proposal targets criminal appeals."  It's by Steve Young.

Attorney General Marty Jackley wants to rein in criminal cases that drag on for years with appeals and cost taxpayers hundreds of thousands of dollars.

The state’s top prosecutor is pushing Senate Bill 42, which would curtail what he calls frivolous and repetitive filings by people after they have been convicted, sentenced for their crimes and have made their direct appeal of those actions to the state Supreme Court.

A person convicted of murder can argue on direct appeal to the Supreme Court that his lawyer was ineffective, but shouldn’t be able make that claim on every lawyer that represents him afterward, Jackley said. His office is proposing a one-year statute of limitations on state court appeals after the direct review. It wants the court to be able to decide whether a defense lawyer has to be appointed on every appeals claim. And it wants to limit repetitive proceedings.

The bill gets its first hearing at 8 a.m. today before the Senate Judiciary Committee in Pierre.

“What we’re proposing is modeled after current existing federal law,” Jackley said. “The reason that’s important is, there’s no way there could be constitutional challenges to what we do because that’s what the feds do. It really comes down to two things. ... you have to file your appeals in one year, and you can’t do repeat fillings.”

His office has met with officials representing the South Dakota Association of Criminal Defense Lawyers to see whether they can agree on tweaks and amendments that would make the legislation more palatable. Lindsey Riter-Rapp, a Pierre lawyer and lobbyist representing defense lawyers, said her constituency isn’t adverse to discussing the issue, but they’re not entirely on board at this point, either.

Riter-Rapp said one of the most problematic provisions in the bill is the one-year statute of limitations for appeals after the direct review by the state Supreme Court. There is wording in the current statute that refers to a five-year timetable, she said.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

Ohio Justice Continues to Speak Out

"Justice Paul Pfeifer rethinks death penalty," is by Henry S. Conte in the Bucyrus Telegraph-Forum.

Bucyrus native Justice Paul E. Pfeifer has indicated in recent years that the death penalty statute he helped establish needs to be taken away.

"I think a little bit of it comes from personal experience, but I think it has more to do with what the Legislature has done now, which is what we were trying to do in the Senate before," Pfeifer said.

The senior associate justice of the Ohio Supreme Court was referring to the law that now allows a life sentence with no hope of parole.

"I always felt as though a life sentence without the possibility of parole was the preferred sentence," Pfeifer said. "It is a death lottery the way it is now. It depends on where you commit the offense as to whether or not the death penalty is sought.

"I know that Joe Deters (prosecutor) in Hamilton County -- his attitude is that they are all death penalty cases. It is just the luck of the draw as to where it happens."

And:

"There is a change coming, but I don't think it is going to be this year. It may be three, four or five years from now, maybe even a decade. I think we have a hard time claiming high moral ground as a nation with a straight face if we continue to have the death penalty. Most of the developed countries in the world do not have it. You can't even be in the European Union if you have it, and Canada doesn't have it."

Earlier news coverage from Ohio includes the state's ongoing lethal injection problems and the Ohio's Joint Task Force to Study Administration of the Death Penalty. 

There is also additional coverage of Justice Pfeifer's call for repeal. 

In 2007, an ABA assessment team issued a report detailing problems with the state's administration of capital punishment.  The complete ABA Moratorium Implementation Project's Ohio Assessment report is available via the ABA.

 

More From Delaware

"State's death penalty should be reconsidered," is the editorial in the Wilmington News Journal.

Gov. Markell was right to commute the death sentence of Robert Gattis. Enough questions had been raised about his sentence to warrant reducing his sentence to life in prison.

And:

The jury in Mr. Gattis' trial split 10 to 2 in recommending the death sentence for his actions. A year earlier, that would have spared Mr. Gattis the death sentence because the law required a unanimous recommendation. But the law was changed because of public outrage over another case a year earlier. Judges were allowed to impose the death penalty despite such split verdicts. That difference of a year raises questions about the arbitrariness of Delaware's death penalty law.

Our society holds that the imposition of the death sentence should be fair and swift. Automatic legal appeals have extended capital cases into decades-long affairs. Rulings, such as the one that recently overturned Jermaine Wright's 1992 death sentence, bring into question the fairness of the process.

These questions will not go away. It is time to rethink Delaware's law.

The News Journal also carries a news article, "Gattis agrees to commutation conditions," by Sean O'Sullivan.

In exchange for his life, Gattis agreed to abandon any future legal appeals and to never challenge in any way his conviction for the May 1990 murder of his onetime girlfriend Shirley Y. Slay. He also had to agree to spend the rest of his life in the maximum security unit at the state prison near Smyrna.

Sitting in the back of the courtroom Wednesday were Shirley E. and Willie Slay, the parents of Gattis' victim.

Gattis did not make a statement and instead answered a series of "yes" and "no" questions from Superior Court President Judge James T. Vaughn Jr. designed to ensure that Gattis' waiver was knowing and voluntary.

At the conclusion, Vaughn made the document Gattis and his attorneys signed agreeing to Markell's conditions an official part of the court record, closing the case.

"It's done. It's done. There is nothing else to say," said Shirley E. Slay, shaking her head as she exited.

And:

Gattis' attorneys Karl Schwartz and John Deckers reiterated that both they and their client were grateful and humbled by Gov. Markell's decision to spare Gattis' life."He doesn't take this lightly," Schwartz said, adding it has added to Gattis' resolve "to do right and to be a better person."

WHYY-FM Newsworks posts, "Before commuting death sentence, Markell met with victim's family."  It's by Shirley Min.  There is audio at the link.

On Monday, the night before announcing his decision to commute Robert Gattis' death sentence to life in prison, Delaware Governor Jack Markell visited with victim Shirley Slay's family.

"It was a very difficult thing to do and I went and apologized to them, but I told them that I wanted them to hear it from me personally."

A judgement call Markell says he felt was the right thing in this case.

"I lost plenty of sleep over it. I read everything very carefully, I prayed about it and it was just, it was an incredibly difficult decision because of the impact on the family of Shirley Slay," said Markell. "In the end, I know, there's a lot of people unhappy about it, but in the end I just was not prepared to go through."

Earlier coverage of Robert Gattis' commutation begins at the link.

The Morton Case

"Morton lawyers press for inquiry of former district attorney," is Chuck Lindell's Austin American-Statesman report.

Dismissing former prosecutor Ken Anderson's defense as strained, feeble and outrageous, lawyers for Michael Morton renewed calls Wednesday for a special court to examine allegations that Anderson intentionally hid evidence to ensure Morton's conviction for a murder he did not commit.

Anderson denied any wrongdoing in a strongly worded court brief, filed two weeks ago, that accused Morton's lawyers of building their accusation around falsehoods, incomplete facts and an incorrect reading of trial records.

And:

Morton's lawyers again asked state District Judge Sid Harle to seek a court of inquiry to examine whether Anderson broke Texas law and should be held in contempt of court for his actions during Morton's trial.

Courts of inquiry are led by an appointed district judge who can subpoena and question witnesses to determine if state laws were broken.

Although Anderson could not be punished if the court concluded he acted improperly, such a finding could result in criminal charges later and have a wider-ranging impact, the Morton brief said.

"Mr. Anderson's conduct in prosecuting the Morton case bears directly on his fitness and character to be a judge in this state," the brief said. A court finding could be used in disciplinary proceedings before the State Bar of Texas and "provide significant information to the voters of Williamson County when he stands for re-election," the brief added.

Anderson's current term ends in 2014.

Earlier coverage of Michael Morton's exoneration and search for causes of his wrongful conviction.

More on the Eroy Brown Parole Case

"Attorney seeks recusals in high-profile parole hearing," is Mike Ward's report in today's Austin American-Statesman.  Here's an extended excerpt:

An attorney for high-profile Texas convict Eroy Brown on Wednesday sought to have two state parole officials removed from deciding whether his client should be approved for a supervised release from prison.

Huntsville lawyer Bill Habern made his unusual request in a three-page letter to Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles. Habern wrote that continuing animosity against Brown from the Texas prison system should disqualify any parole official who once worked for the system or who has a spouse who worked for the prison system.

Although such a request is rare — Habern said in his letter he has never made such a request in his 40 years of practice — parole panels in the past have been handpicked by the chair to handle high-profile cases after other members recused themselves.

Brown, who will soon turn 60, was acquitted in the April 1981 shooting death of a farm manager at a Huntsville prison, Billy Moore, and the drowning death of the warden, Wallace Pack, after a scuffle broke out over a pistol that Pack is said to have pulled on Brown. Prison officials said the deaths were murder, and prisons were later named for both Moore and Pack.

Brown, who said he acted in self-defense, was acquitted of murder charges after three trials, in which testimony about the officials' past conduct and convicts' accounts of the shooting and prison conditions helped corroborate Brown's account. The state's forensic evidence also was disputed, Habern said.

Brown was later sentenced to 90 years for robbing a Waco convenience store of $12 and candy bars, and is in a South Carolina federal prison. A federal judge ordered him to serve his time outside Texas because of concerns about his safety in state lockups.

Habern's letter was filed Wednesday afternoon. Parole officials could not be reached for comment.

The American-Statesman reported Wednesday that Brown is coming up for parole for the eighth time in 17 years. This time, Habern has argued that the parole board should approve Brown's release into a supervised re-entry program in Los Angeles that has a high success rate. Otherwise, Brown will be eligible to walk free without supervision within five years, thanks to credits he's received for good behavior.

Earlier coverage of Eroy Brown's case is at the link.

The New Jim Crow - Now in Trade Paperback

Leonard Pitts' writes, "The new Jim Crow alive and thriving," in his syndicted column.  It's via his home paper, the Miami Herald.

In June of 2010, I wrote in this space about a book, The New Jim Crow, by Michelle Alexander, which I called a “troubling and profoundly necessary” work. Alexander promulgated an explosive argument. Namely, that the so-called “War on Drugs” amounts to a war on African-American men and, more to the point, to a racial caste system nearly as restrictive, oppressive and omnipresent as Jim Crow itself.

This because, although white Americans are far and away the nation’s biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes. And when they are set “free” after doing their time, black men enter a legal purgatory where the right to vote, work, go to school or rent an apartment can be legally denied. It’s as if George Wallace were still standing in the schoolhouse door.

The New Jim Crow won several awards, enjoyed significant media attention, and was an apparent catalyst in the NAACP’s decision last year to call for an end to the drug war. The book was a sensation, but we need it to be more. We need it to be a movement.

As it happens and not exactly by coincidence, Alexander’s book is being reissued in paperback this week as we mark the birthday of the man who led America’s greatest mass movement for social justice. In his battle against the original Jim Crow, Martin Luther King, in a sense, did what Alexander seeks to do: pour sunlight on an onerous condition that exists just beyond the periphery of most Americans’ sight.

And:

On March 15, Alexander has agreed to appear with me at Books & Books in Coral Gables, where I will moderate a discussion with an audience. You’ll also be able to submit questions via Twitter @MiamiHeraldLive and Facebook. Video from the event will be posted on The Miami Herald’s website.

On Monday, Dave Davies interviewed Michelle Alexander on the WHYY-produced Fresh Air on National Public Radio, "Legal Scholar: Jim Crow Still Exists In America."  There is audio at the link.

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.

Related posts are in the books and race indexes.

Protest at the Supreme Court

"Death Penalty Protesters Are Arrested at U.S. Supreme Court," is the AP report via the New York Times.  It's also available via the Washington Post.

Fourteen people have been arrested at the Supreme Court for protesting the use of the death penalty in the United States. A court spokeswoman, Kathy Arberg, announced the arrests soon after justices began hearing oral arguments on Tuesday. It is illegal to demonstrate on the court’s plaza that faces the Capitol. The protests are timed to observe the 35th anniversary of the execution of Gary M. Gilmore; the Supreme Court upheld the constitutionality of the death penalty in 1976, and Mr. Gilmore was put to death in 1977 after a 10-year moratorium on executions.

"14 Arrested In Death Penalty Protest at Supreme Court," is Tony Mauro's post at the BLT.  A photo is at the link.

Inside, the Supreme Court was hearing arguments in a dusty federal tax case. Outside, police were arresting 14 death penalty protesters who unfurled a 30-foot wide banner with the message "STOP EXECUTIONS!" on the Court's marble plaza. One by one this morning, the demonstrators were escorted or dragged away for violating the federal law (40 U.S.C. 6135) that forbids "processions or assemblages" on Supreme Court grounds.

The protest marked the 35th anniversary of the Utah execution by firing squad of Gary Gilmore, the first execution since the high court's reinstatement of the death penalty in 1976. It was a repeat of a similar demonstration five years ago, and in between, numerous others -- from Princeton philosopher Cornel West to demonstrators dressed like Guantanamo detainees -- have been arrested in the same location.

The demonstrators assembled beforehand at the nearby United Methodist Building where they discussed what to expect when arrested, and held hands in prayer. Bethesda, Maryland solo practitioner Mark Goldstone, longtime lawyer for Court protesters, briefed the group on the legalities, and told them, as he put it later, "It's too bad you aren't corporations, because then you would have more First Amendment protections."

Lethal Injection Roundup - Nebraska, Oregon News

From Nebraska, the Omaha World-Herald reports, "Chambers letter twits Bruning."  It's by Joe Duggan.

Nebraska's most ardent opponent of capital punishment has accused Attorney General Jon Bruning of trying to gain a campaign advantage by conducting an execution before the election.

Former State Sen. Ernie Chambers of Omaha sent Bruning a letter last week chastising him for continuing to push for an execution using death drugs that were allegedly obtained illegitimately. Bruning is seeking the Republican nomination for the Senate seat being vacated by Sen. Ben Nelson.

"You seem to be counting on the death penalty ... to transmogrify into the beneficent goose that will lay for you the golden egg of a seat in the U.S. Senate," Chambers wrote.

Bruning's campaign manager, Trent Fellers, declined to comment Monday.

Chambers says he intends to run for the north Omaha legislative seat he was forced by term limits to relinquish in 2008.

Much of Chambers' 4½-page letter centers on the state's acquisition of sodium thiopental, the first of three drugs to be used to carry out a lethal injection.

Earlier coverage of Nebraska lethal injection issues begins at the link.

The Oregonian posts, "Oregon's unused death penalty drugs test pharmaceutical company leaders," by Joe Rojas-Burke.

Oregon's unused lethal injection drugs have set the stage for a test of the sincerity of pharmaceutical executives who say they don't want their products used to execute prisoners. 

Since Oregon Gov. John Kitzhaber cancelled the planned Dec. 6 execution of convicted murderer Gary Haugen, the state has returned the lethal injection drugs to an undisclosed wholesaler. Oregon had obtained 20 50-milliliter vials of pentobarbital; 50 10-milliliter vials of pancuronium and 50 20-milliliter vials of potassium chloride. The supply cost nearly $18,000 and Oregon expects to get much of the money back.

And:

Most physician and nursing organizations have come out strongly against medically assisted executions. American Medical Association guidelines prohibit almost every type of involvement: Physicians should not attend or observe executions, give technical advice, select injection sites, start intravenous lines, prescribe or prepare the drugs or inspect or test lethal injection devices. Last year, the American Board of Anesthesiology decided that involvement in lethal injection is grounds to revoke an anesthesiologist's board certification.

Physicians and influential medical journals have begun pressuring pharmaceutical companies that supply lethal injection drugs to the 34 U.S. states that impose death penalty sentences.

Earlier coverage of Oregon's lethal injection drugs begins at the link.  Related posts are in the lethal injection index.

News Coverage of the Delaware Commutation

Today's New York Times carries the editorial, "A Death Penalty Commutation."

On Tuesday, Gov. Jack Markell of Delaware commuted the death sentence of Robert Gattis to life without parole. In doing so, he said he gave “great weight” to the careful decision of the state board of pardons to recommend that the sentence be commuted, the first such recommendation the board has made since the death penalty was reinstated there in 1974. As a condition of the commutation, which is supported by a long list of former judges and prosecutors, Mr. Gattis is expected to waive all legal challenges and live out his life in prison.

And:

For one board member, the rationale for life without parole is more basic. “When the taking of life is not required as a matter of self-defense,” he explained, “one cannot ethically or morally take that act.” Commuting Mr. Gattis’s sentence meets the imperative of justice. Imposing the death penalty in his case, as in any case, would have been grossly unjust.

Sean O'Sullivan offers extensive coverage in, "Gattis spared: Markell commutes death sentence to life in prison," for the Wilmington News Journal.

Delaware Gov. Jack Markell on Tuesday spared the life of condemned killer Robert A. Gattis, who was scheduled to die by lethal injection early Friday morning.It is the first time in modern memory, and perhaps the first time ever, that a Delaware governor has commuted a death sentence to life in prison.

And:

The Slay family said they were disappointed by the outcome but accepted it.

"We are going to look at it as the way God wanted it to be," said Slay's mother, who also is named Shirley.

She said Markell met with members of the family personally before he made his decision public Tuesday, and they appreciated the chance to share their side of the story with Markell and explain their feelings and concerns.

Markell put conditions on his offer of commutation, stating Gattis must agree to surrender all future legal appeals and to spend the rest of his natural life in the Maximum Security Unit of Vaughn Correctional Center.

To that end, according to Markell's office, a hearing is expected to be held today in New Castle County Superior Court, where Gattis will formally waive his appellate rights before a Superior Court judge and agree to the conditions set by Markell.

The News Journal also carries, "Markell may avoid voter backlash," by Chad Livengood.

One of the Democratic governor's chief Republican critics doesn't think the governor will be hurt politically by the decision.

"I don't see any political fallout," said House Minority Leader Greg Lavelle, vice chairman of the Delaware Republican Party.

Markell explained his decision to legislative leaders Tuesday during their weekly lunch meeting, Lavelle said.

"It's a difficult decision," said Lavelle, R-Sharpley. "I'm glad I didn't have to make it."

"Delaware governor commutes death sentence," is by Bill Mears at CNN.

Markell said he prayed and met with Slay's family before making his decision. He concluded that "moving forward with the execution of Mr. Gattis is not appropriate." But the commutation "in no way relieves Mr. Gattis of his moral or legal guilt."

Gattis, 49, appeared in person at the clemency hearing last week in Dover, saying he is a changed man, and begging for mercy. "I am not the Robert Gattis who killed Shirley Slay, that's not who I am," he said, according to a transcript of the hearing.

The Board of Pardons said there was merit to Gattis' claims of mistreatment suffered as a child. "We accept that if even half of what has been submitted about Mr. Gattis' childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care," said the state panel.

Gattis' lawyers expressed relief at the commutation. "We are humbled by Gov. Markell's morally courageous decision," said attorney John Deckers. "To our knowledge, no prior Delaware governor has ever commuted a death sentence."

Delaware has executed 15 people since capital punishment was resumed in the United States in 1976. Nineteen male inmates now remain on the state's death row.

Reuters posts, "Delaware governor spares life of murderer," by Barbara Goldberg and Michelle Nichols.  It's via the Chicago Tribune.

The Board of Pardon's move, on which Markell said he acted, marked the first time the board had recommended clemency since the death sentence was reinstated in Delaware in 1974.

MSNBC posts, "Del. governor spares murderer facing execution."

Gattis' plea for clemency was based on new evidence about the physical and sexual abuse he suffered as a youth. He said he has become a new person in prison.

"I'm not the Robert Gattis that killed Shirley Slay. That is not who I am now. I am the Robert Gattis who has two sons I love and respect," he said at his parole hearing last week.

Earlier coverage of the historic Delaware commutation begins at the link.

Supreme Court Rules in Favor of Alabama Death Row Inmate

The Supreme Court. ruling in Maples v. Thomas is available in Adobe .pdf format.

"New hearing for death row inmate in mail mix-up" by Mark Sherman for AP.

The Supreme Court on Wednesday ordered a new hearing for an Alabama death row inmate who missed a deadline to appeal when court notices to his lawyers at a big firm in New York were returned unopened.

The court voted 7-2 Wednesday to reverse a federal appeals court ruling that cut off appeals for Cory Maples.

Justice Ruth Bader Ginsburg said in her opinion for the court that Maples had been abandoned by his lawyers at the Sullivan and Cromwell firm when they left for new jobs and neglected to tell the local court or their client.

"Through no fault of his own, Maples, an inmate on death row, was left unrepresented at a critical time," Ginsburg said.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia said the court should have stuck with its usual practice of holding defendants responsible for their lawyers' mistakes. "One suspects that today's decision is motivated in large part by an understandable sense of frustration" with Alabama's refusal to waive its deadlines in this case, Scalia said in an opinion joined by Thomas.

But Justice Samuel Alito, who often votes against criminal defendants, said in a separate opinion that Maples' circumstances were unique. "What occurred here was not a predictable consequence of the Alabama system, but a veritable perfect storm of misfortune," Alito said

And:

Wednesday's decision means a court will hear Maples' claims that his inexperienced, poorly paid trial lawyers did such a bad job on his behalf that their work violated the Constitution's guarantee of representation for criminal defendants.

"Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule," is Adam Liptak's New York Times report.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ginsburg wrote.

In a concurrence, Justice Samuel A. Alito Jr. described what had happened to Mr. Maples as “a veritable perfect storm of misfortune,” starting with the oddity that much of it was attributable to lawyers from “one of the country’s most prestigious and expensive” law firms.

“I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm,” he added.

Yet two lawyers from Sullivan & Cromwell failed to inform Mr. Maples when they left the firm. Nor did they tell the court from which they were awaiting a ruling in his case. When two copies of that ruling were sent to the firm, it returned them unopened.

Justice Ginsburg’s opinion included a critique of Alabama’s capital justice system. At the time of Mr. Maples’s trial, court-appointed lawyers in capital cases were paid $40 an hour for time in court and $20 an hour otherwise, with a $1,000 cap on out-of-court work.

Mr. Maples was convicted of murdering two companions after a night of drinking. “His inexperienced and underfunded attorneys,” Justice Ginsburg wrote, “failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct and woefully underprepared for the penalty phase of his trial.”

At one point the lawyers apologized to the jury, saying that they “may appear to be stumbling around in the dark.” Even so, the jury’s vote recommending the death penalty was 10 to 2, the minimum required under Alabama law.

Justice Ginsburg was also critical of how Alabama handles challenges to convictions. Alabama is nearly alone among the states, she wrote, in that it “does not guarantee representation to indigent capital defendants in post-conviction proceedings.” Instead, the state relies on volunteer lawyers from public interest law firms and from the pro bono practices of major firms like Sullivan & Cromwell.

"U.S. Supreme Court Sides With Death-Row Inmate on Law Firm Mailroom Error," by Greg Stohr for Bloomberg News.

The U.S. Supreme Court revived an appeal from an Alabama death-row inmate who missed a legal filing deadline because of a mailroom error at the law firm that was representing him.

The justices, voting 7-2 today to reverse a lower court, said Cory R. Maples was entitled to another chance to challenge his death sentence for killing two friends in 1995.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ruth Bader Ginsburg wrote for the majority.

The ruling is a victory for criminal defendants at a court that in other cases has been reluctant to excuse missed deadlines. In 2007, the justices threw out an appeal by a convicted murderer who missed a filing deadline because of a judge’s error.

Maples had been represented without charge by two lawyers at New York’s Sullivan & Cromwell LLP in his 2001 bid to overturn his conviction. By the time an Alabama judge ruled against Maples in 2003, both lawyers had left the firm.

When the clerk’s office for the Alabama court mailed the judge’s order to the two lawyers, both envelopes were returned. One was stamped, “Returned to Sender -- Attempted, Unknown,” and the other had a similar stamp along with “Return to Sender -- Left Firm” written by hand.

The clerk’s office didn’t take any additional steps to contact the lawyers, and Maples himself didn’t learn about the order until a month after the appeal deadline had passed.

“Had counsel of record or the state’s attorney informed Maples of his plight before the time to appeal ran out, he could have filed a notice of appeal himself or enlisted the aid of new volunteer attorneys,” Ginsburg wrote.

"U.S. Supreme Court rules in favor of Alabama Death Row inmate Cory Maples," is by Mary Orndorff at the Birmingham News.

The case is now sent back for further proceedings. Maples wants a federal court to consider whether errors during his 1995 trial and sentencing might have kept the jury from voting 10-2 for the death penalty. Maples was convicted in the 1995 shooting deaths of two acquaintances as they sat in a car in his driveway late at night after he had been drinking.

Earlier coverage of Maples v. Thomas begins at the link.

The Ohio Lethal Injection Appeal

Andrew Rosenthal posts, "Death Penalty Death Watch: Ohio," at his New York Times Loyal Opposition blog.

Charles Lorraine, who was convicted of killing an elderly man and his bedridden wife in 1986, was scheduled to be executed by lethal injection today in Ohio. But the Sixth Circuit court isn’t going to let that happen, which is good news for those of us who oppose capital punishment.

And:

What’s notable in this case is that Judge Frost and the 6^th circuit are basing their decisions on the constitution’s equal protection clause—rather than on cruel-and-unusual punishment grounds, as is often the case. On paper, Ohio’s execution rules satisfy legal requirements; but in practice Ohio keeps taking a “big picture, close enough” approach, as Judge Frost puts it.

This story is far from over. Already Ohio has requested a Supreme Court review of the case, while Mr. Lorraine’s attorney has issued a statement calling for a moratorium on executions in the state. But the real “big picture” is this: There is no point to all this pretend tinkering, no way for governments to execute prisoners in a way that is not cruel and unusual punishment or in violation of other parts of the constitution. It is long past time for the United States to join the community of civilized nations and stop this immoral practice.

The latest AP filing is via the Bucyrus Telegraph Forum, "Ohio prepares appeal in case that halted execution."  It's written by Joanne Viviano.

Frost said Ohio failed to document the drugs used in its most recent execution in November and failed to review the medical chart of the inmate who was put to death. He called his decision against the state a "self-inflicted wound" that could have been prevented if the corrections department did a better job of explaining why it might deviate from its policies.

"Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms," he said.

A three-judge 6th Circuit panel upheld the delay while the state's changes are reviewed.

The panel said federal courts must monitor every single Ohio execution "because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death."

"Ohio AG To Appeal Halt Of Execution," is from the Ohio News Network.

The Ohio Attorney General's Office was preparing its appeal to the U.S. Supreme Court on Tuesday to defend its lethal injection procedures against a federal court decision that halted an execution planned for Wednesday.

"We are all saddened that the execution will not occur this week but we've got to look at the big picture here and we believe that we are doing that," Deputy Attorney General Stephen Schumaker said.

Schumaker said that filing the appeal to the U.S. Supreme court concerning the execution of Charles Lorraine is a priority, but there is no real timetable for it, ONN's Denise Alex reported.

"Watkins: Out of my hands," by Christopher Bobby for the Warren Tribune Chronicle.

While the Ohio attorney general's office continued preparing its appeal to the U.S. Supreme Court to defend its lethal injection procedures, Trumbull County Prosecutor Dennis Watkins admitted the case is clearly out of his hands.

''I understand and respect that the decision of how to proceed in this matter resides with the attorney general and the governor, and they have apparently decided on a different course of action, to wit, to appeal the merits of the federal judge's full opinion rather than just the stay itself,'' Watkins said in a news release Tuesday.

And:

A spokesman for Kasich said Tuesday he couldn't confirm if the governor had considered issuing as late as today an official reprieve in the case, which would allow the governor to remain in control of Lorraine's death warrant.

''My understanding is that a reprieve would leave the date up to the governor rather than another (execution) date having to be set by the Ohio Supreme Court,'' said Rob Nichols, a spokesman for the governor.

Local prosecutors say it's possible that the execution of Lorraine - since he is now embroiled in the latest litigation - may now go to the back of the line and follow other scheduled executions.

And DeWine's office reported that similar actions by other death row inmates could join in with Lorraine's latest appeal.

Earlier coverage of the Ohio lethal injection ruling begins at the link.  Related posts are in the lethal injection index.

More on Baze v. Rees , the 2008 Kentucky case in which the Supreme Court ruled on the constitutionality of lethal injection, is via Oyez.  Natiional news coverage and Texas news coverage of the ruling is also available.

Eroy Brown

Mike Ward writes, "Brown case highlights reluctance to parole longtime offenders," for today's Austin American-Statesman.  Here's an extended excerpt from this must-read.

Eroy Brown, whose acquittal on murder charges involving the deaths of a prison warden and a farm manager in the 1980s shook the Lone Star corrections system to its roots, is coming up for parole again.

Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars. The graying, almost 60-year-old is serving time in a South Carolina prison because a federal judge thought his safety could not be guaranteed in a Texas lockup. If he's granted parole, he would be sent to a pre-release program in California.

If he's denied parole, he would be released within five years without any supervision under controversial early release policies enacted in the 1970s to ease prison crowding in Texas.

"He got more publicity for (the acquittal) than Christ on the cross," said Houston attorney Bill Habern, who was Brown's lawyer on the murder charges. "The (prison) system still to this day doesn't believe he should have been acquitted. ... What is probably going to happen is called getting even."

Brown's case highlights a long-standing issue with Texas' parole system: a reluctance to parole longtime offenders with high-profile cases, even those who soon will be freed anyway, and those with serious and costly health problems.

Brown is earning liberal credits for good behavior on his sentence, which he would finish by 2017, according to current calculations. At that time, he would be released free and clear, with no supervision.

Brown is among just 4,208 of Texas' 156,000 convicts who are still accruing such credits under old laws, a number that dwindles each year as more are paroled or released.

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden, Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

And:

Habern said Brown would be better off on supervision after his release. Sister Teresa Groth said Tuesday that Brown has been accepted into the Partnership for Re-Entry Program, an initiative that caters mostly to "lifers" like Brown. Since it opened in 2002, the program, which is affiliated with the Roman Catholic Archdiocese of Los Angeles, has a 100 percent success rate for participants not going back to prison, Groth said.

"He'll be going into a program where he'll be supervised. He won't be coming back to Texas. He'll be in an area where he has relatives and some friends. What could be better than that?" Habern said.

"It seems like that would be much better than squeezing another three or four years out of him and then dumping him out on a street in South Carolina."

Ward's article notes - and I want to highlight - The Trials of Eroy Brown: The murder case that shook the Texas prison system written by Michael Berryhill.  It was published last year by UT Press and is available at the link.  Berryhill is chair of the journalism department at Texas Southern University in Houston.

In November, the Texas Observer published an excerpt from the book.  This is from Berryhill's introduction to the excerpt:

Last June, an administrator at the federal prison in Salters, South Carolina, must have been shocked when he opened the transfer file of a Texas inmate named Eroy Brown. For the past 26 years Brown has been serving a 90-year sentence in various federal prisons. He was sentenced for holding up a Waco convenience store in 1984. What was shocking was not the robbery, which netted Brown and two accomplices $12 and a couple of candy bars, but what happened three years before the robbery. In 1981, Eroy Brown drowned the warden of a Texas prison face down in a drainage ditch and shot and killed a prison farm manager in a struggle for control of the warden’s pistol. Federal prison officials immediately locked their new prisoner in solitary confinement as a dangerous murderer and a possible threat to prison officers.

It is unlikely that the Texas Board of Pardons and Paroles placed the full story of those killings in Brown’s file, for that would have included the fact that Brown was acquitted of those killings by reason of self-defense. The full story is that in 1982, 23 of 24 jurors declared Brown innocent of murder in the drowning of Warden Wallace Pack. In 1984, another jury acquitted him of murdering farm manager Billy Max Moore. And the fuller story is that Brown has been kept in federal custody for a state crime because in 1984 Texas agreed to a civil rights settlement that keeps him from ever serving time in the Texas prison system—it might be too dangerous for him.

Brown’s parole attorney, Bill Habern, one of the lawyers who helped defend Brown’s murder charge, wrote a letter to the federal warden explaining that Brown was not the dangerous murderer he might seem to be, but the victim of two aggressive Texas prison officials. Habern thought Brown deserved the chance to live in the general prison population and hold a job.

If Brown were reviewed for parole on the basis of the crimes for which he was convicted, he would likely be out by now. Brown has served 26 years for a $12 robbery.

Related posts are in the Texas Board of Pardons & Paroles index.

Tarrant County Death Sentenced Reduces for Brady Violation

The action was expected following an agreement reached last year.  "Chelsea Richardson's sentence officially reduced," is the Fort Worth Star-Telegram report written by Alex Branch.

If Chelsea Richardson felt relief when her death sentence officially became a life sentence, she did not show it.

Richardson was back in a Tarrant County courtroom Tuesday, this time to hear visiting Judge Steve Herod accept a sentencing agreement reached by prosecutors and her attorneys for the 2003 murders of Rick and Suzanna Wamsley of Mansfield.

Wearing a baggy yellow jail jumpsuit and dark-rimmed glasses, Richardson, 27, spoke only to acknowledge that she waived her right to appeal.

The hearing was mostly a formality. The Texas Court of Criminal Appeals overturned Richardson's death sentence in November.

The judges ruled that the punishment phase of Richardson's trial in 2005 was affected by misconduct by then-prosecutor Mike Parrish, who withheld evidence from the defense. Parrish retired in 2008.

Richardson and her boyfriend, Andrew Wamsley, were convicted of capital murder in separate trials for the deaths of his parents. Authorities said Andrew Wamsley, Richardson and a friend, Susana Toledano, killed the couple so that Andrew Wamsley could inherit his parents' $1.56 million estate.

Richardson was the only one to receive the death penalty.

Under the new sentence, she must serve 40 years before she is eligible for parole. She will get credit for time served.

Richardson's attorney, Robert Ford, who led efforts to get her conviction overturned, died last year. Attorney Bill Ray represented her at the hearing.

Earlier coverage of Chelsea Richardson's case begins at the link.  Misconduct by the same prosecutor was also an issue in the case of Michael Toney, freed from death row in 2009.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez. Related posts are in the prosecutorial misconduct index.

re here: http://www.star-telegram.com/2012/01/17/3667020/chelsea-richardsons-sentence-officially.html#storylink=cpy

Delaware Governor Commutes Death Sentence

The Delaware Governor's Office has released, "Statement of Governor Jack Markell Regarding the Commutation of Sentence of Robert Gattis."

Pursuant to my authority under Article VII, Section 1 of the Delaware Constitution, I have decided to commute the sentence of Robert Gattis to life in prison without the possibility of parole, subject to the conditions set forth below.

I realize my decision may cause pain to the family and friends of Shirley Slay. For that, I deeply apologize.

In reaching this conclusion, I give great weight to the decision of the Board of Pardons. In the exercise of its constitutional duties, the Board thoroughly reviewed Mr. Gattis’s application for clemency and the State’s response. The Board studied the entire historical record of this case, carefully listened to the statements made by parties on both sides, and had the opportunity to look Mr. Gattis in the eyes and question him. Having done so, the Board took the unusual and perhaps historic step of recommending, by a 4-1 margin, that Mr. Gattis’s death sentence be commuted to life without parole. I take the Board’s considered decision seriously.

Over the last two decades, executions pursuant to death penalty sentences imposed by the State have proceeded only in the absence of an objection from the Board of Pardons and the multiple courts having jurisdiction over the case. In essence, the multiple checks and balances that are in place have historically been in alignment before the extraordinary action of executing a criminal defendant proceeds. While I have supported the imposition of the death penalty in the past and I consider Mr. Gattis’s crimes to be heinous, I am not prepared to move forward with imposition of the sentence in this case.

I undertake this commutation after thorough review of the record presented and substantial contemplation. I have read Mr. Gattis’s application for clemency, the state’s response, and Mr. Gattis’s reply. I have reviewed the many affidavits submitted. I have spent substantial time considering the harm endured by Ms. Slay and her family, Mr. Gattis’s history, and the merits of the clemency application. I have prayed. At the end of the day, although I am not free from doubt, I believe moving forward with the execution of Mr. Gattis is not appropriate under the totality of the circumstances. After my review, I find myself in agreement with the four members of the Board of Pardons who concluded the mitigating evidence here is sufficiently substantial that an act of clemency on my part is warranted. In doing so, I am committed to the fact that Mr. Gattis will spend his remaining life in prison and will pose no threat to public safety.

Even if one were to discount certain of the allegations of sexual abuse recently alleged by Mr. Gattis (as the Board did), the fact remains that Mr. Gattis’s family background is among the most troubling I have encountered. As one of his former attorneys stated in an affidavit, the additional evidence about Mr. Gattis’s childhood “puts Mr. Gattis, his case, and his potential defenses to capital murder in an entirely different light.” This substantial dysfunction, abuse and neglect Mr. Gattis experienced as a youth does not in any way excuse the cowardly murder of Ms. Slay.

This commutation in no way relieves Mr. Gattis of his moral or legal guilt, and I am mindful of the fact that an innocent victim lost her life on the night of May 9, 1990. That is why I have conditioned Mr. Gattis’s commutation on the following: (1) Mr. Gattis shall forever drop all legal challenges to his conviction and sentence, as commuted; (2) Mr. Gattis shall forever waive any right to present a future commutation or pardon request and agree to live out his natural life in the custody of the Department of Correction; (3) Mr. Gattis will be housed in the Maximum Security Unit of the James T. Vaughn Correction Center for the remainder of his natural life, unless constitutionally required medical care is necessary; and (4) Mr. Gattis, after consultation with counsel, shall knowingly, willingly and voluntarily accept these conditions, as determined by the Superior Court. With these conditions, Ms. Slay’s loved ones can at least know that they will never have to go through the painful process again of trials, hearings or requests for release.

My decision is among the most difficult I have had to make in all my years in public service. But in light of the Board’s unprecedented decision and the reasons set forth above, I believe it is the correct one under the circumstances. My thoughts and prayers are with the loved ones of Shirley Slay during this difficult time.

The Wilmington News Journal reports, "Markell spares Gattis the death penalty," by Sean O'Sullivan.

Delaware Gov. Jack Markell today announced he is sparing the life of condemned killer Robert A. Gattis, who was scheduled to die by lethal injection early Friday morning.

It is the first time in modern memory, and perhaps the first time ever, that a Delaware governor has commuted a death sentence.

Markell's action means the execution will now be called off and the 49-year-old Gattis - who was convicted and sentenced to death for the May 1990 murder of his one-time girlfriend Shirley Slay - will spend the rest of his life in prison.

Markell cited the "unusual and perhaps historic" recommendation of the Delaware Board of Pardons, in a 4-1 vote, to commute Gattis’ sentence.

"I realize my decision may cause pain to the family and friends of Shirley Slay. For that, I deeply apologize." Markell said in a statement.

However, as a condition of the commutation, Markell said Gattis must agree to surrender all future legal appeals and instead spend the rest of his natural life in prison. This was a condition recommended by the Pardons Board.

Earlier coverage of Robert Gattis' case begins at the link.

 

Another Former Warden Calls for Repeal

The Salem Statesman Journal reports, "Former Oregon warden seeks end to death penalty."  It's written by Alan Gustafson.

A former state penitentiary warden who oversaw the last two inmate executions in this state has joined an advocacy group determined to repeal Oregon's death penalty.

In an interview Friday with the Statesman Journal, Frank Thompson described the death penalty as "a failed public policy."

"In my opinion, capital punishment fails terribly in meeting any evidence-based outcomes," he said.

The retired Oregon Department of Corrections administrator was at the helm of the Oregon State Penitentiary during the lethal-injection executions of serial killer Douglas Wright in 1996 and Salem double killer Harry Moore in 1997 — the only inmates put to death since Oregon voters reinstated capital punishment in 1984.

This week, Thompson joined Oregonians for Alternatives to the Death Penalty, becoming one of three new members on its advisory council.

And:

The ex-warden said he favors life in prison as the suitable alternative punishment for convicted murderers sentenced to death.

"I do believe that life without the possibility of parole is an effective sanction in lieu of the death penalty," he said.

Looking back on his leadership role in planning and carrying out the two executions in the 1990s, Thompson said he performed his duty as "a good soldier."

But, he said, it was a daunting task that remains etched in his memory.

"It's a life-changing experience," Thompson said.

Earlier coverage of corrections workers speaking against capital punishment begins at the link.

Ohio Appeals Lethal Injection Ruling to Supreme Court

"Ohio postponing execution as it awaits word from US Supreme Court on lethal injection policy," is the updated AP filing, via the Star-Tribune.

Ohio won't go forward with an execution that had been scheduled for this week as it asks the U.S. Supreme Court to rule that the state's protocol for lethal injections is constitutional.

Forty-five-year-old Charles Lorraine had been scheduled to die Wednesday, but a U.S. district judge halted the procedure last week, saying the state had failed to follow its own rules for executions. A federal appeals court agreed that the execution should be delayed while those changes and reasons for them are reviewed.

Attorney General Mike DeWine and Gov. John Kasich announced Sunday that the state was appealing to the U.S Supreme Court.

An earlier version is, "Ohio taking Charles Lorraine death penalty case to U.S. Supreme Court," via the Cleveland Plain Dealer.

The 6th U.S. Circuit Court of Appeals ruling supported an earlier decision by U.S. District Court Judge Gregory Frost, who criticized the state for deviating from policy when an inmate was executed in November.

Earlier coverage of Ohio lethal injection issues begins at the link.

News Coverage of the Delaware Clemency Recommendation

"Board of Pardons votes to spare convicted killer," is Sean O'Sullivan for the Wilmington News Journal.

In an unprecedented 4-1 decision announced Sunday, the Delaware Board of Pardons is recommending that the death sentence for convicted killer Robert A. Gattis be commuted to life in prison.

It will now be up to Gov. Jack Markell to decide if he will accept the board's recommendation to spare Gattis' life or if he will allow the execution of the 49-year-old by lethal injection to go forward as planned early Friday.

The Board of Pardons explained its decision in a press statement, saying that the jury recommendation that Gattis die for the May 1990 murder of Shirley Slay was not unanimous. The vote was 10-2. Board members wrote that they were troubled by the disparity in sentences that have been handed down for essentially the same crime, with some others receiving less than life sentences.

The AP filing is, "Delaware pardons board recommends commutation for killer facing Jan. 20 execution," by Randall Chase.  It's via the Republic.

"The governor will consider the board's written decision and carefully review the case," Markell spokeswoman Cathy Rossi said in a prepared statement. Rossi gave no timetable for when Markell will make his decision.

And:

Joe Rogalsky, a spokesman for the attorney general's office, issued a statement saying his agency respects the time and careful deliberation that went into the board's decision, but that it would not be appropriate to comment further until the decision has been reviewed in its entirety and with Slay's family.

"Del. Pardons Board recommends clemency for Robert A. Gattis," is by Jennifer Hayes for the Dover Post.

"Del. board urges life for death row inmate," is the UPI report.

"Delaware Board of Pardons votes 4-1 in favor of condemned killer's clemency request," by Mark Fowser for WHYY-FM Newsworks.

"Delaware pardons board show clemency to death row prisoner," by Ed Pilkington in the Guardian.

Today's Wilmington News Journal carries the lengthy report, "Doubts increase about death penalty," written by Sean O'Sullivan.  Here's the beginning:

Robert A. Gattis and Jermaine Marlow Wright were both sentenced to death in October 1992, the year many say Delaware made it easier to put criminals to death.

And by an odd coincidence, both men may be spared owing to decisions, one by a judge and one by a pardons board, made this month.

Legal observers and death penalty critics say the sudden turnabout -- for men who have spent almost 20 years on death row -- reflects an increasing skepticism among both the public and the court system about capital punishment.

Gattis, 49, who was convicted for the May 1990 murder of his girlfriend Shirley Slay, is set to die by lethal injection early Friday. But on Sunday, the Delaware Board of Pardons recommended by a 4-1 vote that Gattis' sentence be commuted to life in prison without possibility of parole. Gov. Jack Markell is now considering whether to accept that recommendation and spare Gattis' life or allow the execution to proceed.

Wright, 39, who was convicted of the January 1991 slaying of liquor store clerk Phillip Seifert, had his conviction and death sentence tossed out on Jan. 3 by Superior Court Judge John A. Parkins Jr., a ruling prosecutors appealed to the Delaware Supreme Court last week.

Since Gattis and Wright were sentenced, the use and popularity of the death penalty have waned.

Earlier coverage of Robert Gattis' case and Jermaine Wright's case begins at the links.

Delaware Board of Pardons Recommends Clemency

The decision is now in Governor Jack Markell's hands.  The Board announced its decision on Sunday.

"Pardons Board Is Right to Recommend Clemency," is the Wilmington News Journal editorial.

The Board of Pardons' 4-to-1 decision came almost a week after Mr. Gattis appeared before the board to ask for the clemency recommendation. In addition to rarely recommending clemency, board decisions usually come much more quickly than this one did.

It was obvious from the members' questioning at the hearing, from the length of their deliberation and from their statement Sunday, they took seriously the questions about Mr. Gattis' sentence.

These issues included the history of severe physical and sexual abuse Mr. Gattis suffered as a child. That history did not come to light until long after his trial. The board also noted that the jury's recommendation of the death penalty was not unanimous. In addition, the board pointed out that the punishment meted out in similar crimes did not call for the death penalty. For all of that, the board recommended clemency.

The board members added the condition that Mr. Gattis drop his legal appeals. In other words, he should spend the rest of his life behind bars. That condition is appropriate.

We hope Gov. Jack Markell accepts the board's recommendation and spares Mr. Gattis' life.

Attorneys for Gattis, John Deckers and Karl Schwartz, issued a "Statement from Attorneys in Response to Recommendation to Governor Markell for Commutation to Life Without Parole for Robert Gattis."

"We are extremely gratified that the Board of Pardons has recommended by a 4-1 vote that Governor Jack Markell commute Robert Gattis' death sentence to life in prison without parole. We respectfully urge the Governor to follow the Board's recommendation which is now joined with the many prominent voices including, legislators, former judges and prosecutors, domestic violence organizations, clergy, mental health professionals, members of the bar and concerned citizens, all of whom have called on the Governor to show mercy and spare Mr. Gattis' life."

The Dover Post carries, "Full statement from Board of Pardons on Gattis clemency decision."

"The Board has before it a very difficult decision as a human life hangs in the balance.  By a four to one vote, the Board is recommending that Mr. Gattis's death sentence be commuted, provided that he agrees to spend the rest of his natural life in prison with no further appeals for relief. 

We wish to set forth briefly in writing the essential basis for our recommendation.

The crimes committed by Mr. Gattis were horrific and we find no fault in how this case was handled by the prosecutors and judges involved. We also believe that the family of the victim has good reasons to argue that the sentence of death should be imposed.  State prosecutors and the Slay family are correct to harbor suspicions about some of the testimony on Mr. Gattis’s background.  The Board weighed heavily that Mr. Gattis did not come forward with the full extent of his sexual abuse until 2009 despite having used elements of a child abuse defense twenty years earlier.  In considering the full record, we accept that if even half of what has been submitted about Mr. Gattis's childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care.  There is evidence in the record that Mr. Gattis complained to medical professionals of mental illness and involuntary violent impulses over a year before Ms. Slay’s murder.  Although Mr. Gattis knew right from wrong and was guilty of first degree murder, we, in the exercise of conscience required of us as members of this Board, believe that these are sufficiently mitigating facts to warrant consideration for clemency. 

Three other factors, not specific to the Gattis case alone, also weigh heavily in the decisions of Board members.  For all four of us, we are concerned that our death penalty statute permits the imposition of death on the basis of a non-unanimous verdict.   In the Gattis case, two jurors who heard the trial in its entirety twenty years ago, both of whom were prepared to impose the death penalty if appropriate, would not do so.

Second, some of us share a concern about the disparity in the sentences that are meted out in serious murder cases.  In our time on the Board of Pardons, we have considered other clemency requests arising from domestic disputes that resulted in brutal murders similar in some respects to the case before us.  Though the crimes of Mr. Gattis are more serious, in those other cases, persons convicted not only were permitted to live but will likely one day be released from prison.  The sentencing disparity in these cases has become too great and offends a moral sense of proportionality. 

Finally, one of us believes even more fundamentally that once a prisoner has been incapacitated and poses no threat of future harm to society, then there is no moral justification for taking his life.  When the taking of life is not required as a matter of self-defense, that member believes that one cannot ethically or morally take that act.

We also take into account the reality that Mr. Gattis is not an unusually problematic prisoner, although he is far from a model one.  Within the structured setting of a prison, one thing emerges indisputably from the record: Mr. Gattis does not pose a threat of violence within the prison setting and is not regarded as dangerous by the Department of Correction.   He appears to be viewed as a constructive prisoner by some of the correctional employees who have worked with him over the years, and is not a security threat.

The recommendation for clemency was a very close call for several of us.  One factor that made the decision so difficult is that Mr. Gattis did not take full responsibility for intentionally killing Ms. Slay until earlier this month, leaving doubt as to his contrition.  Given that, and to ensure that the Slay family and the public do not have to go through this painful process again, we condition our recommendation for mercy, on the following:  1) Mr. Gattis shall forever drop all legal challenges to his conviction and sentence, as commuted; 2) Mr. Gattis shall forever waive any right to present a future commutation or pardon request and agree to live out his natural life in the custody of the Department of Correction."

Earlier coverage of Robert Gattis' case begins at the link.  I'll have news coverage of the Board's decision in the next post.

Three Decades of Capital Punishment in Texas

That's the title of a Texas Tribune post written by Brandi Grissom and Ryan Murphy.  The article is accompanied by charts.

Thirty-five years ago today, the state of Utah executed Gary Gilmore by firing squad and restarted the death penalty in the United States. Texas followed suit, reinstating capital punishment in 1982 and quickly becoming home to the nation's busiest execution chamber.

A 1972 U.S. Supreme Court opinion that the states' use of the death penalty was arbitrary and capricious led to a de facto moratorium on the penalty across the nation. States began changing their death penalty laws, and the pause on executions ended with a subsequent high court decision in 1976. 

The first post-moratorium execution in Texas was in 1982. Charles Brooks Jr. was executed for the 1976 shooting death of a mechanic. Since 1982, Texas has executed 477 men and women, more than any other state. And there are more than 300 men and women in Texas awaiting execution now.

And:

In the first graph, we have charted both the frequency of executions and the racial makeup of the executed. The graph is broken into five-year segments starting in 1980 and going through 2011. An interesting trend that becomes visible in this graph is the growing number of Hispanic inmates who are executed. Although the number of executions of black inmates has declined, the number for Hispanic criminals has risen. In 2010 and 2011, more Hispanic criminals were executed than black criminals. The first person set to be executed in 2012 is a Hispanic inmate, Rodrigo Hernandez, from Bexar County.

Despite that trend, the number of black inmates on death row continues to exceed any other, as the graph below illustrates.

According to TDCJ, six exeuctions have been scheduled by Texas district courts for 2012.  The first is January 26.  More on the 1972 case of Furman v. Georgia, in which the Supreme Court ruled existing death penalty laws unconstitutional - as well as the 1976 case of Gregg v. Georgia, via Oyez.

Extensive News Coverage of the Mississippi Pardons

Here's a sampling of the extensive news coverage:

"Barbour's Mississippi pardons unusually bold, law experts say," by Joseph Ax for Reuters, via the Chicago Tribune.

While most of the Republican governor's pardons were granted to defendants who had already finished serving their sentences, 26 current inmates were also given pardons, including several convicted in killings.

"It's the combination of things that make it unusual," said P.S. Ruckman, an associate professor of political science at Rock Valley College in Illinois and an expert in pardons. "Pardoning people as you leave office isn't that unusual. But pardoning so many of them at once?"

"The way he did it, he's getting the heat he deserves, I think," Ruckman added.

The move prompted the office of Governor Phil Bryant, who served as Barbour's lieutenant governor and took office on Tuesday, to announce support for a state constitutional amendment to tweak the governor's clemency powers. A judge has also suspended releases of newly pardoned prisoners.

Typically, governors would offer a commutation, which reduces the length of a sentence, rather than a full pardon for convicts still in jail, experts said. A pardon restores certain civil rights, such as the ability to own a gun or obtain state licenses - rights Barbour referred to in explaining his actions.

"These days, if people who are serving sentences do get a full pardon, it's almost invariably because of some suggestion of innocence," said Margaret Colgate Love, who has written a book on pardons.

"Haley Barbour pardons spark review," by MJ Lee at Politico.

“Governor Phil Bryant has asked Senator Michael Watson, Chairman for the Senate Constitution Committee, to review the current law as it regards to pardons, how it allows the governor to make these type of decisions, and whether we need to address the wording better in a constitutional amendment,” Bryant’s spokesman Mick Bullock said in a statement Thursday, according to Reuters.

“The governor believes a constitutional amendment is the right way to address such an important issue,” Bullock added.

Bryant was sworn into office as the 64th governor of Mississippi on Tuesday.

"Barbour's pardons stir outrage in Mississippi," by Judy Keen for USA Today.

"This is literally a travesty of justice," says John Dedousis, a physician in Bayonne, N.J., whose sister, Lisa, was one of two people killed in a 2009 car wreck caused by Jackson socialite Karen Irby, who was drunk. Barbour changed her 18-year manslaughter sentence to house arrest. Dedousis created a Facebook page, Victims of Mississippi Pardons, to call for an investigation.

Barbour, 64, a Republican, served two terms as Mississippi governor and could not run a third time because of term limits. He announced last April that he would not seek the 2012 Republican presidential nomination.

Barbour said in a statement Wednesday that some people "misunderstood" the clemency and pardon process. About 90% of those affected were no longer in custody, he said, and his actions were meant to "allow them to find gainful employment or acquire professional licenses as well as hunt and vote."

"Changes due for pardons," by Phil West for the Memphis Commercial Appeal.

Gov. Phil Bryant and legislators are considering three ways to curb the governor's nearly unlimited power to pardon criminals in light of former governor Haley Barbour's early release of about 200 inmates, the chairman of the Senate Constitution Committee said Thursday.

Bryant and legislators want to narrow the governor's power of pardon without removing it altogether, said Constitutional Committee chairman Michael Watson, R-Pascagoula.

"We want to make sure we do something smart, that's not knee-jerk," Watson said. "I understand the pardoning powers of the governor are important. We don't want to completely bar all those. Some states have done that."

After meeting with Bryant, Watson said legislators are looking at three potential ways to limit the governor's powers:

Legislation that would bar the Department of Corrections from allowing violent criminals and sex offenders from working at the governor's mansion where they can get cozy with the governor and his family.

A constitutional amendment that would require favorable recommendations from the parole board before an inmate could be considered for pardon.

Limit which type of offenders could be considered by the governor for parole.

"Outgoing Gov. Haley Barbour's pardons shock Mississippi," by Richard Fausset in the Los Angeles Times.

Terrance Winters of Yazoo City, Miss., voted for Haley Barbour in the past, and while he gives the ex-governor a mixed grade these days, particularly on economic matters, he's always given Barbour points for political shrewdness.

Which is why Winters, a 31-year-old cook at a barbecue restaurant, is flummoxed by the mess that Barbour left behind after stepping down from office this week.

"I actually don't know what he was thinking," Winters said.

That is a question most of Mississippi, and the political world far beyond it, is asking.

"Mississippi's new governor supports amendment to cut clemency powers," by Geoff Pender of McClatchy News via the Bellingham Herald.

Bryant's comments come amid a firestorm outgoing Gov. Haley Barbour created when he granted clemency to more than 200 convicted criminals in his final days in office. His lame-duck clemency freed several violent criminals early this week and would have freed more before state Attorney General Jim Hood got a court to grant a temporary injunction halting their release. Hood says some of Barbour's pardons may have violated the state Constitution's requirement that notice of pardon requests be published in newspapers for 30 days prior.

"I say have a constitutional amendment - let the people vote on it," Bryant said. "I'm a big proponent of letting the people decide things."

And:

A constitutional amendment requires a three-fifths majority vote from the Legislature, then ratification by Mississippi voters.

"We want to target sex crimes and violent crimes - really restrict any pardons there," said Watson. He said a draft of the legislation could be ready by as early as next week.

"Experts: Barbour pardons appear done in 'haste,' lack key information," by Miranda Leitsinger at MSNBC.

Many of the more than 200 pardons by Haley Barbour during his last day as Mississippi's governor seemed to have been done in haste, with information missing from the clemency warrants -- which did not have the “look of full technical and procedural regularity,” experts say.

Sentencing information for many of those pardoned, given clemency or granted early release in one of Barbour's final acts as governor was not included on many of the clemency warrants. And, one of the documents even had a semicolon instead of the date the person was discharged on, said P.S. Ruckman Jr., an associate professor of political science at Rock Valley College in Rockford, Ill., who reviewed each of the executive orders.

A typical presidential pardon, said Ruckman, would include standard information, such as offense committed and when the crime occurred.

"So I went to those warrants expecting to find that kind of standard information and ... most of them had maybe, I would say, half of that information. The rest of them were missing some date, one way or another, or some piece of information, like not telling you what the sentence was,” he said.

"When you don’t know how severe the punishment was, then you know, I guess you could be of such a mind to say, well, he was hiding that information so a standard person ... couldn’t kind of see how egregious some of these offenses were," he added.

But Ruckman said he didn't think that was the case. "I think it was just a matter of they were in a rush and they were pumping these things out fast, and so they just didn’t bother to fine track down that information and, or, to write it in the clemency warrant."

Earlier coverage begins with the preceding post.

Commentary on the Mississippi Pardons

Let's start with the editorials and commentary in this post; news coverage, in the next.

Today's Jackson Clarion-Ledger carries the editorial, "Pardons: 'Divine' right trumps victims?"

In his way out the door of the Governor's Mansion, Haley Barbour caused a firestorm of citizen anger by pardoning more than 200 convicted felons.

Barbour seems to have underestimated the amount of citizen ire this decision would cause. It's puzzling on several fronts. For example, as Attorney General Jim Hood noted in temporarily blocking the pardons in court, the Mississippi Constitution may have been ignored by failing to publish 30-days notice about the pardons.

Also, some of these pardons were poorly vetted, for crimes that are still fresh and even premeditated crimes that cannot be simply dismissed as crimes of "passion."

They appear not well researched, which runs against Barbour's history as governor. He has never been so sloppy. Nor in two full terms has he been so insensitive to the politics of a situation.

The Mobile Press-Register editorial is, "Barbour's action was hasty, imprudent and offensive."

Whatever a state's constitution allows, though, usually gives critics little recourse.

That being said, it's going to be up to Mississippi voters to decide whether they are willing to continue to trust their governors with this power. Some politicians are already talking about pushing for a constitutional amendment to change the system, which would need a vote of the people.

Mississippi Attorney General Jim Hood was right to press for a halt to further releases, which a judge granted Thursday. All 200-plus pardons demand a thorough airing. If some warrants were pushed through hurriedly and did not provide sufficient notice, they need to be addressed.

But in the long run, Mississippi's going to have to live with what the law allows -- or act to change it.

Former White House speechwriter Mary Kate Cary writes, "Haley Barbour Was Right to Issue Those Pardons."

Back in the 1990s, I wrote many speeches for Gov. Haley Barbour when he was the head of the Republican National Committee. Now he's finishing his second term as governor of Mississippi and had a lot of people urging him to run for president this year. When you write a lot of speeches for someone, you get to know that person pretty well. Haley Barbour is an honorable, decent man. He's compassionate and treats the people who work for him well. He's also a lawyer, and is one of the smartest people I know in politics.

And:

While I don't know the facts of these cases, nor am I a lawyer, I suspect there's a lot more to the story when it comes to these pardons. As Barbour's office pointed out, the vast majority of those whom he pardoned had already served their full sentences, and his pardons were based on the recommendations of the parole board. I'd bet that at least a few of them were convicted under questionable circumstances, and may or may not have had the benefit of DNA evidence when they were originally tried. I'm sure the governor has seen, as the rest of us have, the increasingly unjust nature of our court system these days. Is there anyone who thinks our criminal justice system isn't tough enough? 

Haley Barbour is a smart, humane man. He understands the need for mercy and compassion in our criminal justice system. He's done nothing wrong.

At ABC News, Huma Khan posts, "Pardon Me: Is Southern Custom Behind Haley Barbour’s Clemencies?"

Four prisoners pardoned by Barbour last Friday worked at the mansion he resided in for eight years. All are convicted murderers.

Mississippi is one of the few states where the “trusty” system is still thriving. Under that system, well-behaved prisoners are allowed to clean, work in the kitchen, wait tables and wash cars at the governor’s mansion, no matter what their crime was.

Proponents say the system helps cut state costs and allows prisoners to put their time to use. North Carolina has a similar program that uses inmates for upkeep of a part of the governor’s residence. South Carolina did the same, but ended its program in 2001 after inmates were found to be having sex in the governor’s residence.

Barbour told The Associated Press in 2008 that it was customary for Mississippi governors to cut short the sentences of inmates who served at the mansion, a tradition that dates back generations. At the time, he faced similar backlash for releasing trusty Michael David Graham, who served 19 years of his life sentence for killing his ex-wife. Graham walked free after working eight years in the governor’s mansion.

The tradition of having inmates work at the governor’s resident is unique to the South, observers say, and is partially inspired by the states’ religious history. Even nationally, the pardoning system, from the state to the federal level, is rooted in some ways in the Judeo-Christian tradition, said P.S. Ruckman, Jr., a professor of political science at Rock Valley College in Illinois, who is writing a book on pardons.

Pardon Power is Ruckman's blog that focuses on clemency issues.  Additional news coverage in the next post.

Earlier coverage of the Mississippi pardons begins at the link.  Related posts are in the clemency index.

Texas Observer on the Linda Carty Case

Alex Hannaford takes a lengthy examination in the current issue of the Texas Observer, "Did Death Row Inmate Linda Carty Get a Fair Trial?"  Here's the introduction:

Trafalgar Square, just a stone’s throw from the very center of the British capital, is an expanse of paved sidewalk, pretty fountains and, most notably, five statues. The central statue is of Admiral Lord Nelson, after whose infamous 1805 sea battle the square is named; King George IV stands in one corner; two historical army generals in the others. The 'fourth plinth', as it's known, remained empty for 150 years, but for the last decade or so it has been used to showcase a series of artworks. For one day in September 2009, though, it carried a cardboard cut-out of an African-American woman, while beneath it, a portable PA system broadcast her voice — calm, and with a slight Caribbean lilt — to passers-by.

“Hello Trafalgar Square,” she said. “My name is Linda Carty and I'm speaking to you from death row in Texas in the United States.”

Her name will mean little to most Texans: the arrests, charges and then sentences in the case were reported locally -- but briefly -- in the Houston Chronicle and a longer piece appeared in the same paper in 2010 following the Supreme Court's refusal to review Carty's case. But the British press had been on it for a long time. In fact, over the last eight years, thanks to news reports (in everything from broadsheets like the Independent and Guardian to tabloids like the Daily Mail and Express), magazine features, a prime time television documentary and a sustained campaign by a London-based human rights group, Carty has become something of a cause célèbre in the UK — and not just for those opposed to capital punishment. Many feel that, irrelevant of her guilt or innocence, Carty simply didn’t get a fair trial.

From the Trafalgar Square plinth, Carty’s disembodied voice continued: “I'm sorry I sound like a desperate woman but I am desperate. The British people may be my last hope. If they ask for my life to be spared, maybe Texas will listen.”

But why has a little-known inmate on Texas’s death row — one of 10 women and 311 men — got the British all a fluster?

Carty was born on the Caribbean island of St. Kitts when it was still a British colony. As such, Carty holds British citizenship, and under the terms of the Vienna Convention on Consular Relations, when she was first arrested, the British consulate in Houston should have been informed. But it wasn’t.

Earlier coverage of Linday Carty's case begins at the link.