The StandDown Texas Project

Texas' 500th Post-Furman Execution Looming

"Woman will be 500th execution since Texas resumed death penalty," is Allan Turner's report for the Houston Chronicle.  Here's the beginning:

The illuminated clock set in red-brick facade of the Walls Unit may be the most dreaded timepiece in Texas. Minute by minute, it ticks away dreary years behind bars. On some days - 15 times last year, 40 times in 2000 - its black hands signal another criminal justice milestone.

Six o'clock, the hands say. Another killer will be dead and gone.

Barring a last-minute stay, Kimberly McCarthy on June 26 will become the 500th Texas killer to be executed since the state re-activated the death penalty in 1976. Texas leads the nation's 33 death penalty states in executions, killing more than the next five most active states combined.

Virginia, with 110 executions, places second.

Minutes before the killing hour, McCarthy, 52, condemned for the 1997 murder-robbery of a 70-year-old Dallas County woman, will be strapped to a gurney in a room deep within the 164-year-old prison. Then, as a warden and chaplain stand silently nearby, she will be injected with a lethal dose of a drug commonly used to euthanize cats and dogs.

McCarthy, a one-time occupational therapist and home health care worker, will be the fourth woman in Texas executed by injection.

Related posts are in the execution date and execution category indexes.

Earlier coverage of Kimberly McCarthy's case begins at the link.

More From Bill Pelke

Bill Pelke is the founder of the Journey of Hope.  He appeared on Democracy Now, earlier today.  Video of, "Sister Helen Prejean & Bill Pelke on Freeing the Death Row Prisoner Who Killed Pelke’s Grandmother," is available at the link.

In a remarkable story on the journey from grief to forgiveness, Bill Pelke joins us along with renowned activist and "Dead Man Walking" author Sister Helen Prejean to discuss the latest victory for the movement against the death penalty.

On Monday, the state of Indiana freed Paula Cooper, the Indiana woman convicted for the 1985 murder of Pelke’s grandmother, elderly bible school teacher Ruth Pelke, in Gary, Indiana. At the time Cooper became the youngest person on death row. She had been the victim of child abuse and had attended 10 different schools by the time of her arrest. Her case galvanized human rights activists and death penalty opponents around the world, including Bill Pelke himself.

Partnering with Sister Helen, he campaigned against the death penalty and plead for Cooper to be granted clemency.

"I became convinced beyond a shadow of a doubt that my grandmother would have been appalled by the fact that this girl was on death row," Pelke recalls. "I was convinced she would have had love for Paula Cooper and her family. I felt she wanted some of my family to have that same sort of love and compassion."

Earlier coverage of Paula Cooper's release begins at the link.

Oklahoma Executes

Oklahoma carried out its second execution of 2013, last night.

"James Lewis DeRosa, Okla. man, executed by lethal injection for couple's 2000 death, report says," is the AP report, via CBS News.

James Lewis DeRosa was killed by lethal injection at the Oklahoma State Penitentiary in McAlester, becoming the state's second inmate executed this year.

At a clemency hearing last month, DeRosa took responsibility for his role in the Oct. 2, 2000, stabbing deaths of Curtis and Gloria Plummer, for whom he had previously done some ranch work. He also apologized to their family.

"I can't express how truly sorry I am for the pain I've caused the Plummer family," DeRosa said. "I take full responsibility for their deaths. If not for me, they wouldn't have died that night."

The Oklahoma execution was the 16th of the year in an  American death penalty state.  To date there have been a total of 1,336 post-Furman executions since 1977.

Oklahoma has conducted 104 executions since 1990.  It trails Texas, with 499 executions, and Virginia (110)  in the number of post-Furman executions.  These three states account for 53% of American executions.

Related posts are in the execution category index.

Arkansas Governor Will Not Set Execution Dates

"Ark. governor to hold off on executions," is the AP report filed by Jeannie Nuss, via the Baxter Bulletin.

Arkansas Gov. Mike Beebe said Tuesday he doesn’t have any immediate plans to schedule executions for seven death row inmates, even though the attorney general has asked him to do so.

The governor’s decision to hold off on setting execution dates comes as the Department of Correction plans to rewrite its lethal injection protocol and as nine death row inmates challenge the state’s new execution law in court, governor’s spokesman Matt DeCample said.

“We have to be in a place where we’re confident to proceed, and when you now have an active court challenge over the statute and the uncertainty around the protocol, we’re not in that position right now,” DeCample said.

The Associated Press first reported Monday that the Department of Correction planned to rewrite its lethal injection procedure to include a different drug. That news came after the state last month said it lost its account with a pharmaceutical company that previously supplied it with chemicals.

It’s not clear when the revised protocol will be complete, but the expected shift in procedure follows changes in the past year at the state Capitol and the Arkansas Supreme Court.

"Beebe won’t set execution dates for now," is the Arkansas News Bureau post.

Gov. Mike Beebe has decided to hold off on setting execution dates because of litigation over Arkansas’ execution law and problems with its death penalty protocol, a spokesman for the governor said Tuesday.

Attorney General Dustin McDaniel last month asked Beebe to set execution dates for seven condemned killers after the state Supreme Court declared stays that had been granted to six of them from a previous case challenging Arkansas’ old lethal-injection procedure were no longer in effect.

Beebe spokesman Matt DeCample said Tuesday that a legal challenge of a new execution law adopted this year was a factor in the governor’s decision to defer setting executions dates, along with problems with the procedure for actually carrying out the death penalty.

“The drug that we acquired, the manufacturer has made clear they don’t want used for executions,” DeCample said, “and there is strong uncertainty whether we would even be able to use the drugs we have now before they expire, just due to the legal entanglements.”

New Jersey-based West-Ward Pharmaceuticals last month closed its account with the Arkansas Department of Correction after learning that the state planned to use drugs it had purchased from the company for executions. The department had bought 25 vials of phenobarbital, an anti-seizure drug, and 25 vials of lorazepam, a sedative, from the company in April.

A Department of Correction spokeswoman said Monday that because of the company’s action, the agency will rewrite its lethal-injection protocol and look at using other drugs — of the same class — in executions.

Earlier coverage from Arkansas begins at the link.  Arkansas is one of a handful of states with a de facto moratorium on executions due to lethal injection issues.

Paula Cooper's Path to Rehabilitation

"Ind. woman sentenced to death at 16 to leave prison," is by Tim Evans of the Indianapolis Star and Gannett News. Here's the beginning:

Paula Cooper was 16 when she was sentenced to death for killing an elderly Bible study teacher.

That made the Gary, Ind., teen the youngest person ever in the state to face the death penalty. At the time in 1986, she also was the youngest Death Row inmate in the United States.

To many, Cooper was a monster beyond rehabilitation. But others saw her as a victim of an abusive childhood and racist criminal justice system.

A legal challenge and international campaign to overturn her death sentence, which included an appeal from Pope John Paul II, saved Cooper's life.

The Indiana Supreme Court commuted the death sentence in 1989 and sent her to prison for 60 years. For the past 24 years, she has lived in relative obscurity.

On Monday, Cooper will try to put all of that behind her when she walks out of the Rockville Correctional Facility.

It will be the 43-year-old's first taste of freedom since her arrest in 1985.

Cooper was 15 when she was charged with murder in the grisly stabbing of 78-year-old Ruth Pelke during a robbery. Three other co-defendants - also teenage girls at the time - went to prison but have been released.

"Paula Cooper Released: Ind. Woman Sentenced To Die At 16 To Walk Free," is the AP report by Charles Wilson, via Huffington Post.

Cooper's sister, Rhonda Labroi, said she hopes people will see Paula as more than a killer. After getting in trouble 23 times during her time in prison, Paula Cooper turned to education, earning a bachelor's degree in 2001.

"She was just a child at the time that happened, and now she is an adult and people should wait and see and give her a chance," Labroi said. "Give her an opportunity. Maybe she'll do some wonderful things for children who are growing up and aren't so fortunate, like she was.

"There are second chances," she said. "It seems like God has given her another chance. I think if people give her a second chance, she'll do fine."

Bill Pelke, Ruth's grandson, is a leader in the death penalty abolition movement and the founder of the Journey of Hope.

Stateline on State Trends

"Some States Speed Up Death Penalty," is the Stateline report by Maggie Clark.  Here's the beginning:

Supporters and opponents of capital punishment agree: The current death penalty is expensive, inefficient, and arbitrary. Some state legislatures have reacted to those faults by abolishing the death penalty, while others are trying to speed it up.

Since 2007, six states have abolished capital punishment—most recently Maryland, which did so this year. But other states, troubled by some of the same problems, have moved in the opposite direction:

• Republican lawmakers in North Carolina, which hasn’t executed any convicts since 2006, repealed the state’s Racial Justice Act. That law created an additional appeal for death row inmates who believed their death sentences were the result of racial bias. GOP legislators also ended medical licensing board restrictions that kept doctors and nurses from administering execution drugs.
• Florida Republican Gov. Rick Scott recently signed a law that will speed up Florida’s execution process. The governor now must sign a death warrant within 30 days of the Supreme Court certifying that an inmate has exhausted all appeals. The execution date must be six months from the date of the warrant.
• California death penalty supporters are working on a citizens’ initiative for the 2014 ballot to restart the death penalty in that state. Last year’s attempt to end the death penalty on the ballot failed.
• And attorneys general in California and North Carolina are vigorously contesting lawsuits in state and federal court that claim their executions by lethal injection are “cruel and unusual,” and thus unconstitutional.

Earlier coverage from California, Florida, and North Carolina begins at the links.

Florida Roundup

Today's Tampa Bay Times publishes the editorial, "Recklessly speeding to execute."

Gov. Rick Scott and the Florida Legislature are speeding up executions in an era when other states are slowing them down or repealing the death penalty. The legislation that Scott signed into law Friday puts him on track to be the most active executioner in modern Florida history, in a state that has had more exonerations off death row than any other in the country. The only backstop now is if Scott uses his executive clemency powers to try to avoid future injustices.

The new law addresses a nonexistent problem. The death penalty has had support from governors across party lines. Both Democrats and Republicans have ordered executions, but they were able to do so on a timetable that reflected the unique circumstances of each case. The new law strips away a governor's discretion, requiring him to sign a death warrant within 30 days after the inmate has exhausted his appeals and the executive clemency process is complete. The only bright spot is that some flexibility is retained by the governor since only he can order a clemency review. Scott's general counsel, Pete Antonacci, urged the addition of the clemency provision, a step that adds a safeguard from reckless speed.

No one has a clear picture of whether there are innocent people among the 405 people on Florida's death row, but the state has exonerated 24 prisoners off death row in the last decade — more than any other state. Frank Lee Smith died of cancer on Florida's death row in 2000 after spending 14 years there. A posthumous DNA test found that he had been innocent of the crime and identified the real murderer.

"Timely Justice Act misunderstood by many," is Mark Schlakman's South Florida Sun-Sentinel OpEd.  He's with the Center for the Advancement of Human Rights at Florida State University.

First, I'm not a proponent of Gaetz's Timely Justice Act per se.

While concerns about undue delay in the appeals process shouldn't be ignored they'd be more appropriately addressed within the context of a comprehensive review of Florida's entire death penalty process by all branches of state government to minimize the risk the state might execute innocent people (or others who shouldn't be subject to the death penalty), precisely what The Florida Bar urged state officials to launch in a resolution it adopted in February.

Former Florida Supreme Court Justice Raoul Cantero, appointed by Gov. Jeb Bush, and I sought that position from Bar leadership for nearly two years.

Capitol News Service posts, "Timely or Shameful Justice?"  It's by Mike Vasilinda.

Governor Rick Scott is executing inmates at a higher rate than any Governor of Florida since the death penalty was resumed in 1979. After taking office two and a half years ago, 8 death sentences have been carried out. New legislation to speed up the process even more is drawing both cheers and jeers.

There is also Florida political polling news from a Quinnipiac University poll.

AP coverage is, "Scott's Approval Rating Up But He Still Trails Crist," by Brendan Farrington, via the Lakeland Ledger.

Florida Gov. Rick Scott’s approval rating is improving, a poll released Tuesday shows, though not to the point that it’s likely to deter any potential challengers in 2014.

The Quinnipiac University poll shows 43 percent of voters approve of the job Scott is doing, compared to 44 percent who disapprove. Meanwhile, 40 percent of voters have a favorable opinion of him compared to 42 percent who have an unfavorable view.

While those numbers aren’t sizzling, they are better than the 36 percent job approval and 33 percent favorable rating that voters gave Scott just three months ago.

The numbers suggest that Scott’s “It’s Working” message, which he’s using to tout Florida’s improving economy, is starting to work.

Still, the Republican governor will have to improve those numbers if he wants to win re-election.

"Gov. Rick Scott gains ground in new statewide poll, but still trails former Gov. Charlie Crist," is by Steve Bousquet for the Miami Herald.

The percentage of voters who have a favorable view of Scott is up to 40 percent, the highest since he took office nearly two-and-a-half years ago. But he has persistent problems with women, who favor Crist by 51 to 32 percent, and Hispanics favor Crist over Scott, 40-33 percent.

Crist’s 13 percent share of Republican crossover votes is slightly higher than Scott’s 8 percent share of Democrats.

Voters still say by a margin of 50 percent to 35 percent that Scott does not deserve to be re-elected, but that too is an improvement over the previous survey in March, when 55 percent said he didn’t deserve a second term and 32 percent said he did.

"It is an indication of how far down Gov. Rick Scott’s numbers have been that he can take some solace from a poll that finds him losing by 10 points to his predecessor in the governor’s office," said Quinnipiac’s Peter Brown. "In addition to cutting the deficit between himself and Crist, Scott sees his tepid job approval and favorability numbers and still-negative re-election numbers as notably improved. That doesn’t mean that happy days are here again for the governor, but if he is going to make a comeback, these are the kinds of steps that would be required."

Flagler Live posts, "Scott Makes Up Some Ground Against Crist and Improves Favorability to Still-Low 40%."

In a match-up against Crist–who has not announced his candidacy in the race–Scott trails, 47 to 37 percent, but that’s a significant improvement from March, when he faced a 16-point deficit in the Quinnipiac poll, and a 12-point deficit in a Public Policy Poll. Scott would also lose against Sen. Bill Nelson, if Nelson were to decide to run for governor. He would beat Scott 48 to 38 percent. Some Democrats are pushing Nelson, who’s had his run-ins with Scott, to run. He was elected to his third U.S. Senate term in November. Florida Democrats gathered for an annual gala last weekend boasted that whoever they would field against Scott would win.

Scott’s numbers have been climbing slowly but rather steadily since his lowest approval rating in May 2011, when it bottomed out at 29 percent, among the worst for any governor in the nation.

Earlier coverage from Florida begins at the link.

Arkansas Rewriting LI Protocol Due to Drug Availability

"Department of Correction to rewrite execution protocol," is the Arkansas News Bureau report.

The state Department of Correction will rewrite its execution protocol because the drugs it intended to use for lethal-injection procedures have become unavailable, a spokeswoman said Monday.

New Jersey-based West-Ward Pharmaceuticals closed its account with the agency last month because its London-based parent company, Hikma Pharmaceuticals, did not want its products used in executions. The state had purchased phenobarbital, a barbiturate, and lorazepam, a sedative, from West-Ward Pharmaceuticals with plans to use the drugs in executions.

“That pharmaceutical company closed our account; we’re not going to be able to acquire those any longer. So that’s the reason for the rewriting of the protocol,” said Department of Correction spokeswoman Shea Wilson.

Wilson said the new protocol likely would change the specific drugs to be used but would still comply with Act 139 of this year. The law directs the Department of Correction to carry out executions using a benzodiazepene, or a drug that slows the central nervous system and calms the prisoner, and “a barbiturate in an amount sufficient to cause death.”

"Arkansas to Look at Other Execution Drugs," is AP coverage, via Arkansas Business.

Officials say Arkansas plans to consider using different drugs in lethal injections after the state lost its account with a pharmaceutical company that supplied it with drugs earlier this year.

State Department of Correction spokeswoman Shea Wilson told The Associated Press Monday that the agency no longer has a supplier for the drugs listed in its current lethal injection protocol. So, Wilson says the department plans to look at other drugs and to rewrite its protocol.

The AP first reported in April that Arkansas planned to use an anti-seizure drug called phenobarbital in executions, even though that chemical has never been used in a lethal injection in the United States.

Associated Press also reports, "Ark. death row inmates amend execution lawsuit," via KTHV-TV.

Nine death row inmates challenging Arkansas' new lethal injection law have amended their lawsuit against the state.

The inmates filed a modified complaint on Friday that asks a judge to declare that the Arkansas Department of Correction can't use a 2013 execution law to put them to death, but instead must follow a 1983 law.

The amended complaint says the nine prisoners involved in the lawsuit were convicted of capital murder and sentenced to death when the 1983 law was in effect.

The laws differ on the drugs to be used in lethal injections.

No execution dates are currently set in Arkansas.  The state's last execution occurred in 2005.

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

Related posts are in the lethal injection category index,  A recent recap by ProPublica reports on current lehtal injection issues.

Salinas v. Texas

The Supreme Court ruling in Salinas v. Texas is available in Adobe .pdf format.

"Supreme Court says pre-Miranda silence can be used by prosecutors in court," is the AP report by Jesse J. Holland, via the Washington Post.

The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

"SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting," is the ABA Journal coverage by Debra Cassens Weiss.

Justice Samuel A. Alito Jr. wrote the controlling opinion (PDF), joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Alito wrote.

The court had accepted the case to resolve a split of authority on whether prosecutors can use a defendant’s silence at trial, when the defendant’s interview with police takes place before a formal arrest. “But because petitioner did not invoke the privilege during his interview,” Alito said, “we find it unnecessary to reach that question.”

Justice Clarence Thomas, in an opinion joined by Justice Antonin Scalia, said he would rule against Salinas even if he had formally invoked the privilege. The prosecutor did not compel Salinas to give self-incriminating testimony, Thomas said, so Salinas’ claim should fail. “A defendant is not ‘compelled . . . to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence,” Thomas wrote.

Courthouse News Service posts, "Fifth Amendment Can't Shield Selective Answers," by Dan McCue.

A murder suspect's silence during initial questioning by police can be used against him at trial, the sharply divided Supreme Court ruled Monday.

Because Genovevo Salinas freely answer several questions posed by officers about two murders that had occurred in Houston, Texas, in December 1992, prosecutors were free to use his refusal to answer one specific question - about the murder weapon - at his trial, according to the ruling.

Salinas had been a suspect in the murders of Juan and Hector Garza from the very beginning, but he eluded the police for nearly 15 years before he was tracked down and put on trial.

Harvard Law prof Noah Feldman writes, "Clarence Thomas’s Legal Time Machine Zooms to 1789," for Bloomberg.

Don’t let the U.S. Supreme Court’s very contemporary cases on gene patenting and same-sex marriage fool you: At least one justice is still living in the 18th century and doesn’t care who knows it.

Justice Clarence Thomas followed his astonishingly consistent originalism in Alleyne v. U.S. today, joined by the court’s four liberals -- and none of its conservatives -- in holding that a fact that increases a defendant’s mandatory minimum sentence must be found true by the jury, not by the judge alone.

Just a few minutes earlier, however, it was announced that Thomas had provided the deciding vote in Salinas v. Texas, arguing that a defendant’s exercising the right to remain silent can be used by the prosecutor to argue to the jury that silence is evidence of guilt.

From a policy perspective, these two opinions, one liberal and one conservative, make no sense. The only way to reconcile them is to enter the mind of Justice Thomas, in which the court’s job is to bring us back to the nation’s founding and damn the consequences.

Thomas’s opinion on what facts must be submitted to the jury derives from a series of opinions he has written over the past 15 years, all of which amount to a concerted historical attack on the way modern legislatures and judges handle criminal punishment. In the good old days, the English common law defined a limited set of felonies, and they all had the same punishment: death. Like the Islamic Shariah, the Jewish Halakha and many other early legal systems, the common law wasn’t so much bloodthirsty as designed to operate in an environment with little formal police enforcement. Capital punishment was counterbalanced by a low likelihood of detection -- kind of like harsh sentences for insider trading.

Related posts are in the Supreme Court category index.

An Update From Ohio

The Cleveland Plain Dealer reports, "Task force urges state panel be created to evaluate death penalty prosecutions," by Robert Higgs.

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.

But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.

And:

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.

It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.

“It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law.

Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Earlier coverage of the Ohio task force begins at the link.  More information is at the Joint Task Force to Review the Administration of Ohio's Death Penalty website.

Florida Governor Signs Timely Justice Act into Law

The text of HB 7083, the Timely Justice Act is available, via the Florida Legislature website.  It was one of 60 bills that Florida Governor Rick Scott signed Friday afternoon.

"Scott signs bill speeding up capital punishment," is AP coverage by Gary Fineout and Tamara Lush..  It's via the Miami Herald.

Gov. Rick Scott on Friday signed into law a measure designed to overhaul the state's capital punishment process. That process has been criticized for allowing some condemned inmates to remain for decades on death row.

The "Timely Justice Act of 2013" creates tighter timeframes for appeals and post-conviction motions and imposes reporting requirements on case progress.

It also re-establishes a separate agency for north Florida to provide appellate-level legal representation to inmates sentenced to death, and requires them to "pursue all possible remedies in state court."

Scott said in his signing statement that the state's current death row inmates who have exhausted their judicial appeals have been awaiting execution for an average of 22 years.

"An inmate who has been on death row for 22 years has had a fair opportunity to discover all of the evidence needed to challenge his conviction, especially when the inmate has received the multiple levels of review and the extraordinary due process afforded death-sentenced offenders," Scott wrote. He said such lengthy delays are "a crushing burden of uncertainty to the victims' families."

But even before the new law Scott has picked up the pace of executions. Two men - Elmer Leon Carroll and William Van Poyck - have been executed by lethal injection in the last month. A third man - Marshall Lee Gore - is scheduled to be executed on June 24. Scott, a Republican, has signed 11 death warrants since taking office in 2011 and seven executions have been carried out.

Florida has 405 inmates on its death row, more than any other state except California.

"Scott Signs Fast-Track Execution Bill, Making 13 Death Row Inmates Immediately Eligible," is by Flagler Live and News Service of Florida.

Gov. Rick Scott on Friday signed the controversial “Timely Justice Act,” a measure aimed at reducing delays in carrying out the death penalty in Florida. The signature makes at least 13 inmates immediately eligible for death warrants, which must be signed within 30 days of the state Supreme Court certifying that an inmate’s appeals and clemency reviews have been exhausted. Once the governor signs a death warrant, executioners at Starke state prison have six months to carry out the killing.

Opponents have argued that the measure (HB 7083) will heighten the possibility of executing innocent people, but Scott rejected that argument as he signed it. With that new law, Scott may be on course to sign the death warrants of at least 21 inmates since he took office, in one term, equaling the number of inmates executed during Jeb Bush’s eight years. On Wednesday, William van Poyck became the eighth inmate executed on Scott’s watch. Marshall Gore will be the ninth when he is killed by lethal injection on June 24.

Since Florida resumed executions in the 1970’s, twenty-four wrongfully convicted death row prisoners have been exonerated thus far (the largest number of wrongfully convicted and exonerated death-sentenced prisoners of any state in the country) while seventy-seven prisoners have been executed. “That’s one exoneration for every three executions,” said Mark Elliott, Director of Floridians for Alternatives to the Death Penalty. “It is unconscionable to hurry up executions and further restrict access to evidence of innocence.”

And:

The measure cuts the time between sentencing and execution by imposing strict time frames for appeals, post-conviction motions and reports on case progress.

In part, it requires the clerk of the Florida Supreme Court to notify the governor when a Death Row inmate’s state and federal court appeals have been completed. The governor would then have 30 days to issue a death warrant if the executive clemency process has finished. The warrant would require that the execution be carried out within 180 days.

"Gov. Rick Scott Signs Bill To Speed Up Executions In Florida," is by Mary Ellen Klas for the Tampa Bay Times.

The bill, which passed the House 84-34 and was approved by the Senate 28-10, allows the governor to control the execution schedule slightly because it requires him to sign a death warrant after the required clemency review is completed and only the governor may order the clemency investigation. Scott's office told lawmakers that because at least 13 of the 404 inmates on death row have exhausted their appeals, his office has already started the clock on the clemency review.

If Scott were to sign death warrants for the 13 eligible inmates, and their executions were to continue as planned, he will be on schedule to put to death 21 people since he took office in January 2011. The only other recent governor who executed that many people was former Gov. Jeb Bush, who ordered the execution of 21 convicted killers over an eight-year period.

The only governor to commute a death sentence since the state passed its current capital punishment law in 1973 was former Gov. Bob Graham, who reduced the sentences of seven men between 1979 and 1983 for various reasons, according to the Death Penalty Information Center.

The clemency provision was added at the request of Scott's general counsel, Pete Antonacci. The clemency investigation allows for the state Parole Commission to conduct an off-the-record review of the entire case and recommend whether the death warrant be signed or the sentence commuted.

Opponents warn that the accelerated clock will diminish the opportunity to exonerate anyone on death row who has been wrongly convicted, reduce the opportunity to challenge convictions because of ineffective counsel and produce a "bloodbath" of executions in the next month.

"Governor signs bill to shorten execution delays," by Dara Kam and John Kennedy for the Palm Beach Post.

Rejecting nearly 15,000 pleas for a veto, Gov. Rick Scott on Friday signed into law a measure speeding up executions. The law includes protections for Death Row convicts and “does not increase the risk of execution of persons who did not commit murder,” the governor said.

The Florida Current posts, "Governor signs 60 new laws," by Bill Cotterell.

Mark Elliott, director of Floridians for Alternatives to the Death Penalty, said Florida leads the nation in death row exonerations with 24 inmates freed by DNA evidence or other factors, often discovered long after sentencing.

"No one knows how many more innocent people are awaiting execution on Florida's death row," Elliott said. "A new law that speeds up executions by limiting appeals will almost certainly lead to the execution of innocent men and women."

Earlier coverage from Florida begins at the link.

Colorado Roundup - Polling, Holmes Case

"What poll means for death penalty," is the title of a Denver Post editorial.

Interestingly, 57 percent of Coloradans said they did not think the death penalty deters murders.

Another revealing statistic: 53 percent said they thought the death penalty was applied fairly in Colorado, despite a mountain of evidence that its use in death-penalty eligible cases is quite arbitrary.

How informed are Coloradans about the death penalty debate? Forty-four percent said they had heard or read "a little" about the debate while 26 percent said they had heard or read "nothing at all."

Only 30 percent said they had heard or read "a lot" on the subject.

Of those Coloradans who did support abolishing the death penalty, the top reason was listed as, "No one has the right to take a life/It's murder." The second most-cited reason was, "Fear of executing an innocent person/Irreversible."

Those seem like pretty good reasons for opposing the death penalty — and there are many more — although apparently they don't resonate with most Coloradans.

We hope the conversation continues and that the governor leads it, polling aside.

Also in today's Post, the news article, "James Holmes' attorneys suggest they might withdraw his insanity plea," by John Ingold.

Attorneys for Aurora movie theater shooting suspect James Holmes have suggested they might withdraw his insanity plea if his upcoming independent psychiatric evaluation doesn't go their way.

This month, Holmes formally pleaded not guilty by reason of insanity, prompting the judge to order him to undergo a mental-health evaluation at a state hospital in Pueblo.

Earlier coverage of the Colorado public opinion polling, James Holmes case, and the Nathan Dunlap reprieve begins at the links.

Let the Racial Justice Act Stand

That's the title of an editorial in the News & Observer of Raleigh, North Carolina.

Sen. Thom Goolsby, a New Hanover County Republican, successfully pushed through a bill to repeal North Carolina’s Racial Justice Act. He said that the original legislation was “poorly written.”

But the truth is the law was written with impressive clarity, starting with the title. It is a law about race and justice. Those two words were not often aligned in the Old South, especially in state laws. That was what made the RJA a monument to the New South and a credit to the state that has on many fronts led the South forward.

And:

The bill to repeal the Racial Justice Act succeeded because prosecutors resented having their motives questioned, and they wanted the threat of death to pressure suspects into plea bargains. They weren’t acting as ministers of justice. They were acting as administers of convictions.

The governor has the opportunity to show he’s willing to change his mind in light of the facts. This bill offers the first serious test of where he wants to lead North Carolina. Will it be forward or backward?

"Red State Resurgence Greenlights Executions," is by Martin Clancy at Huffington Post.  He's the co-author of the recently published, Murder at the Supreme Court: Lethal Crimes and Landmark Cases.

Supporters of the Racial Justice Act saw it as a historic measure that addressed a long history of injustice. As the Winston-Salem Journal noted in an editorial, some examples were blatant: a black defendant who got the death penalty in Stanly County being referred to in trial testimonyz as a "nigger from Wadesboro"; a juror in a Randolph County case who said after the trial in which he voted for death for the black defendant that "blacks do not care as much about living as whites do."

A study by Michigan State University researchers determined that over the two decades preceding passage of the Racial Justice Act, North Carolina prosecutors rejected twice as many blacks as potential jurors than they did whites; the rejection rate was even higher in cases where the defendant was black.

"Repealing this law in the face of clear evidence that it is still much needed in our court rooms comes perilously close to institutionalized discrimination in our justice system," said the Wilmington Star-News.

Republicans now wield more political cloat in North Carolina than they have for generations. They captured control of the legislature in 2010 for the first time in a century, then broadened their majority while also capturing the governorship in 2012.

The Racial Justice Act was one of the issues prompting weekly demonstrations against Republican efforts to roll back fiscal and social measures put in place by their predecessors. Dubbed "Moral Mondays," the six weeks of demonstrations at the state Capitol have so far resulted in over 380 arrests.

But neither the editorials nor the protests have deterred the powerful Republican majorities in both houses of the General Assembly. They not only repealed the Racial Justice Act, but also conferred legal protection on medical professionals who might assist in executions. Doctors, nurses and technicians would not be liable to regulators or ethics boards for their participation in administering lethal injections. So much for the Hippocratic oath to "do no harm."

Earlier coverage from North Carolina begins at the link; also available, more on Murder at the Supreme Court.

Former Ohio Supreme Court Justice Now Opposes Death Penalty

"Former Justice Stratton says she’s now opposed to death penalty," is by  Alan Johnson in today's Columbus Dispatch.

In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death.

From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.

But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views.

Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”

Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.

"Former Ohio Supreme Court justice now opposes death penalty, saying it doesn't deter crime," is the AP report, via the Daily Journal.

Stratton, now an attorney in private practice in Columbus, spoke Thursday to a state Supreme Court task force analyzing the effectiveness of Ohio's capital punishment law. The committee has examined racial bias in death penalty cases, ways to improve the legal representation of capital defendants and other topics. But it isn't debating whether the state should have the death penalty.

The former justice was asked to speak to the panel about her concerns with capital punishment in cases of mentally ill defendants.

Stratton told the panel she didn't have a strong overall opinion about the death penalty when she served on the court from 1996 through late last year. The state put 49 men to death by lethal injection during that time, the newspaper reported.

It's not uncommon for sitting judges to change their mind on the death penalty, and Stratton isn't the first Republican jurist in Ohio to have a change of heart on the issue.

Justice Paul Pfeifer, who helped write Ohio's death penalty law three decades ago when he was a young state senator, has argued for its end since early 2011 and called for the state to stop using capital punishment.

Also from AP, "Ohio death penalty task force continues work," via the Martins Ferry Times Leader.

The committee that convened Thursday in Columbus has examined everything from racial bias in death penalty cases to ways to improve the legal representation of capital defendants.

Chairman James Brogan, a retired appeals court judge, has said he expects two reports from the committee, one from a majority backing recommendations, the other from a minority of members with different views.

Ohio Supreme Court Chief Justice Maureen O'Connor convened the task force while making it clear it won't debate whether the state should have the death penalty.

The group includes judges, prosecutors, defense attorneys and academic experts.

Earlier coverage of the Ohio task force begins at the link.  The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information and future meeting dates.

More on Justice Pfeifer's break with capital punishment is also available.

Oklahoma Governor Rejects Commutation Recommendation

"Governor denies clemency for Oklahoma death-row inmate," is by Cary Aspinwall for the Tulsa World.

Gov. Mary Fallin did not issue a stay of execution for convicted murderer Brian D. Davis on Thursday despite the Pardon and Parole Board’s recommendation for clemency.

Davis is scheduled to be executed June 25 at the Oklahoma State Penitentiary in McAlester.

The board voted 4-1 last week to recommend clemency for Davis, who was convicted in Kay County of raping and stabbing to death his girlfriend’s mother in 2001. Board members recommended that the death sentence be commuted to life without parole. 

And:

Clemency is rare in Oklahoma death-penalty cases: Only four death-row inmates have been granted clemency in Oklahoma since 1976, according to the Death Penalty Information Center. It has executed 103 people during that time, according to the Death Penalty Information Center.

Gov. Lee Cruce was one of the only Oklahoma governors to grant clemency broadly — he commuted every death sentence imposed during his administration from 1911-1915.

Gov. Brad Henry commuted the sentences of three death-row inmates — Osbaldo Torres, Kevin Young and Richard Tandy Smith — during his eight years in office.

Henry was concerned about disparate sentencing and said that after reviewing the facts of the three cases, he determined that life without parole was a more appropriate sentence for each inmate.

In 2001, Gov. Frank Keating granted clemency to death-row inmate Phillip Dewitt Smith, saying he had doubts about Smith’s guilt.

AP coverage is, "Okla. gov. rejects clemency for death row inmate," by Tim Talley.  It's via the San Francisco Chronicle.

Gov. Mary Fallin rejected Thursday the Oklahoma Pardon and Parole Board's recommendation that she commute the death sentence of Brian Darrell Davis, who is scheduled to be executed this month for the rape and murder of his girlfriend's mother almost 12 years ago.

Fallin's executive order comes just one week after the board voted 4-1 to recommend that Davis' death sentence be commuted to life in prison without the possibility of parole. The order states that Davis is to be executed as scheduled June 25 by lethal injection at the Oklahoma State Penitentiary in McAlester.

Earlier coverage of the case begins at the link.

From Madrid: Fifth World Congress Against the Death Penalty

The Swiss Broadcasting Corporation posts, "Minister calls for ‘world without death penalty’."

Foreign Minister Didier Burkhalter has highlighted Switzerland’s commitment to the abolition of capital punishment at the opening of the Fifth World Congress against the Death Penalty in Madrid.

“Switzerland aims to ensure that those countries which have not as yet abolished the death penalty at least place a moratorium on its use,” he said in a statement released by the foreign ministry.
 
In it, he added that capital punishment was incompatible with the values represented by Switzerland and had an impact on the country’s other obligations such as the prohibition of discrimination.
 
The death penalty was abolished from Swiss federal criminal law in 1942, but remained available in military criminal law until 1992.

Together with Spain, France and Norway, Switzerland is patron of the Fifth World Congress against the Death Penalty which is hosting around 1,500 delegates from over 90 states in Madrid until Saturday.

"Former death row inmates fight capital punishment," is the AFP report, via the Sun of Malaysia.

Twelve years after leaving death row in Florida, Joaquin Martinez still cannot abide traditional lightbulbs.

"At the time we still had the electric chair and just like in the movies, the bulbs flickered and went out when they executed someone," said Martinez, who is visiting Madrid to join the fifth World Congress against the Death Penalty.

"I don't have any normal lightbulbs at home, just halogens," he said.

His hair impeccably brushed back, the well-dressed 41-year-old Spaniard was arrested in 1996 in Florida on suspicion of double murder before being found not guilty by the US justice system and freed in 2001.

"I still dream sometimes that I am a prisoner. I wake up with a shudder," he said in a presentation event ahead of the June 12-15 congress, organised by the French lobby group Ensemble Contre La Peine de Mort (Together Against the Death Penalty).

Organisers say they expect 1,500 people from 90 countries, including high-profile politicians such as French Foreign Minister Laurent Fabius, to gather for the congress.

The debate will be punctuated by testimony from people who were once condemned to death or the relatives of those now living on death row.

Related posts are in the international category index.

Dallas Morning News Editorial

"Getting it right on capital punishment," is the Morning News editorial published today.

State lawmakers meant business in the high-crime 1990s, getting tough on so-called writ abuse by convicted killers who could file multiple appeals in state courts and drag out a case for years.

The upshot was passage of the Habeas Corpus Reform Act in 1995, a political no-brainer. The catchphrase was “one bite at the apple” for death-row appeals. The promise was sure and swift justice.

So why is Texas still litigating capital cases from the 1990s?

For good cause, it turns out.

In a 1996 murder case out of San Antonio, Trevino vs. Thaler, the U.S. Supreme Court decided May 28 that the state’s 18-year-old, two-pronged system of automatic appeals for death-row inmates is still not adequate in assuring competent counsel.

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format

Earlier coverage of the Trevino ruling begins at the link.

Court: Texas Inmate's Decades-Old Sentence Invalid

That's the title of an AP report by Michael Graczyk, via WBAY-TV.  It's also available through Huffington Post as, "Jerry Hartfield, Texas Inmate, Has Life Sentence For Murder Deemed Invalid By Court of Criminal Appeals."

The Texas Court of Criminal Appeals ruling in Hartfield v. Thaler is available in Adobe .pdf format.

Here's an extended excerpt from the AP report:

The life sentence given to a Texas man who has remained in prison for 33 years since being pulled off of death row isn't valid, Texas' highest criminal court said Wednesday, possibly paving the way for a new trial or the inmate's release.

The Texas Court of Criminal Appeals said once it overturned Jerry Hartfield's murder conviction in 1980 for the killing of a bus station worker four years earlier, there was no longer a death sentence for then-Gov. Mark White to commute.

The opinion was given in response to a rare formal request by the 5th U.S. Circuit Court of Appeals to confirm the validity of its ruling overturning Hartfield's conviction, in light of the governor's 1983 commutation. The New Orleans-based federal court made the request, which upheld a lower state court's ruling that the sentence was invalid.

"The status of the judgment of conviction is that (Hartfield) is under no conviction or sentence," Judge Lawrence Meyers wrote in a decision supported by the court's other eight judges. "Because there was no longer a death sentence to commute, the governor's order had no effect."

Hartfield, now 57, was convicted and sentenced to death for the 1976 robbery and killing of a Southeast Texas bus station employee. The criminal appeals court overturned his murder conviction, ruling that a potential juror improperly was dismissed after expressing reservations about the death penalty.

White commuted Hartfield's sentence in 1983 at the recommendation of the Texas Board of Pardons and Paroles, and he has remained in prison since then, unaware until a few years ago that his case was in legal limbo. Court documents in his case described him as an illiterate 5th-grade dropout with in IQ of 51, although Hartfield says he's learned to read and write while in prison.

In its failed appeal to the 5th Circuit, the state argued that Hartfield's life sentence should stand because he missed a one-year window in which to appeal aspects of his case.

Earlier coverage of Jerry Hartfield's case begins at the link.

Colorado Public Opinion Polling

The Quinnipiac University Poll Release Detail is at the link.

"Poll: Coloradans back death penalty, disapprove of Dunlap reprieve," is by Chuck Plunkett at the Denver Post.

Coloradans said that the death penalty will be an important factor when they cast ballots in next year's governor's race, and also harbor strong disapproval of the state legislature, according to a wide-ranging national independent poll released Thursday.

In the poll conducted by the Quinnipiac University Polling Institute, 74 percent of residents say that the issue over the state's death penalty will be either "very important" or "somewhat important" in a contest where Republicans will be vying to unseat incumbent Democratic Gov. John Hickenlooper.

In May, Hickenlooper granted an indefinite reprieve to Nathan Dunlap, a convicted murder who killed four people at an Aurora Chuck E. Cheese in 1993. Dunlap was scheduled to be executed in August.

The poll found that 67 percent of Coloradans disapprove of Hickenlooper's decision to grant the reprieve to Dunlap, compared to 27 percent who approve of it.

"The governor has made it clear that certainly on his watch it doesn't appear anyone is going to be executed in this state, and that's an important point," said Tim Malloy, assistant director of the Quinnipiac Polling Institute.

The AP filing is, "Poll shows strong Colorado support for death penalty," by Nicholas Riccardi.  It's via the Coloradoan.

Hickenlooper was a rare Democrat elected during the Republican wave year of 2010, and has positioned himself as a nonpartisan centrist. But he ended up in an increasingly partisan corner after Democrats retook the statehouse in November and muscled through a number of contentious measures, including a package of new gun control laws. That could be taking a toll on Hickenlooper’s ratings. The poll said 49 percent of voters disapprove of the Legislature and only 36 percent approve.

Democrats have won the past three gubernatorial elections in Colorado. The state remains evenly split between Democrats, Republicans and independents. Republicans and independents overwhelmingly support the death penalty, by 87-11 and 73-21 margins, respectively, the poll suggested. Democrats support it more narrowly, 49-41.

The poll indicated voters narrowly approve of Hickenlooper’s performance as governor, 47 percent to 43 percent. But the governor is struggling with independents. Only 44 percent approve while 47 percent disapprove.

The poll of 1,065 registered voters was taken from June 5-11 with live telephone interviews on landlines and cellphones. It has a sampling error margin of plus or minus 3 percentage points.

National Journal posts, "Poll: Tancredo Ties Sliding Hickenlooper in Colorado," by Scott Bland.

Quinnipiac surveyed 1,065 registered voters from June 5-10. The poll's margin of error is plus-or-minus 3 percentage points. Only 24 percent of respondents identified themselves as Democrats, nine percentage points lower than the share that turned out in 2010, according to exit polls. Still, the survey reveals that the governor is suffering with independents, 47 percent of whom disapprove of Hickenlooper, compared to 44 percent who approve. However, Hickenlooper actually lost independents to Tancredo in 2010, despite beating Tancredo by nearly 15 percentage points overall; the Republican ticket led by businessman Dan Maes captured only 11 percent of the vote.

The new poll also suggests it's no stretch to draw a line between Hickenlooper's declining popularity and recent items on his agenda. Hickenlooper granted a temporary death penalty reprieve to convicted murderer Nathan Dunlap in May, saying Colorado's application of the death penalty was "imperfect and inherently inequitable."

But 69 percent of voters say the state should continue having the death penalty as a legal option, and 67 percent said they disagreed with Hickenlooper's decision to grant the reprieve. Tancredo cited Hickenlooper's decision as a main motivator for entering the race again next year.

Meanwhile, 49 percent of the poll respondents said they disapproved of the job performance of the state legislature, which is controlled by Democrats and wrote a number of liberal priorities -- including some contentious ones -- into law this year. A suite of new gun laws caused particular controversy and led to an ongoing recall effort against two Democratic state senators. Hickenlooper did not issue any vetoes in 2013, though he did help scuttle some bills (including a death penalty repeal effort) before they could get to his desk.

"Quinnipiac Finds Strong Colorado Support for Death Penalty, Close Guv Race," by John Tomasic for the Colorado Independent.

Nearly 70 percent of Centennial State respondents told Qunnipiac they would like to retain capital punishment as an option for prosecutors, even though only roughly 50 percent of the voters surveyed believe the death penalty is applied fairly in the state and even though 57 percent say they don’t believe it prevents crime.

Momentum in the U.S. has generally been moving away from capital punishment in recent years. Officials have argued against it as DNA evidence has exonerated defendants who have landed on death row and as repeat studies show death sentences are more frequently meted out in cases featuring poor and ethnic minority defendants.

Colorado Democratic Governor Hickenlooper has drawn fire in the weeks since he granted death row convicted murderer Nathan Dunlap a reprieve. Dunlap gunned down four people in Aurora in 1993. There was never any question about his innocence. Hickenlooper said the reprieve was less about Dunlap than about the fact that the death penalty is unevenly applied in Colorado.

“Our system of capital punishment is imperfect and inherently inequitable,” he said. “Such a level of punishment really does demand perfection.”

The three men currently on the state’s death row all come from Arapahoe County. They are all African American.

Earlier coverage from Colorado begins at the link.  Related posts are in the public opinon polling category index.

DC Circuit Court of Appeals to Review Judge Jones Ethics Complaint

The New Orleans Times-Picayune reports, "5th Circuit judge complaint to be considered by Washington D.C. court," by Drew Broach.

A formal complaint against a judge of the 5th U.S. Circuit Court of Appeals in New Orleans was transferred Wednesday to the federal appeals court in Washington D.C. The one-sentence notice of the transfer, posted on the 5th Circuit's website, does not name the judge or describe the complaint, but it appeared eight days after a coalition of civil rights groups challenged 5th Circuit Judge Edith Jones' possibly racist remarks in a February speech at the University of Pennsylvania.

The 5th Circuit's chief judge, Carl Stewart of Shreveport, sought to transfer the complaint, according to a letter from Supreme Court Chief Justice John Roberts to the Judicial Council of the Court of Appeals for the District of Columbia Circuit. It had been Stewart's duty to determine whether the complaint merited investigation and, if so, to order an inquiry by the 5th Circuit's Judicial Council.

Instead, Stewart turned to Roberts, invoking a rule that allows transfers "in exceptional circumstances."

"Rare formal review ordered for federal judge," is the Houston Chronicle report by Lise Olsen.

Chief Justice John Roberts of the U.S. Supreme Court formally ordered on Wednesday that a rare public judicial misconduct complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones be reviewed by officials in a different circuit — one based in the nation's capital.

"I have selected the Judicial Council of the District of Columbia Circuit to accept the transfer and to exercise the powers of a judicial council with respect to the identified complaint and any pending or new complaints relating to the same subject matter," Roberts said in a letter addressed to the D.C. circuit's chief judge that was posted on the 5th Circuit's website.

It is only one of a handful of times in U.S. history that a federal circuit judge has been the subject of a public judicial misconduct complaint and a formal disciplinary review. Normally such matters are secret under federal law.

"This is a hopeful sign that (federal judges) are taking this seriously," says a lawyer who signed the complaint, James C. Harrington of the Texas Civil Rights Project.

The Austin Chronicle posts, "Complaint About Judge's Alleged Racist Comments Moved to D.C.," by Jordan Smith.

In a brief single-paragraph letter, Roberts wrote that he has selected the D.C. Circuit Court of Appeals to conduct the review of a complaint filed June 4 by a group of civil rights advocates and legal ethicists and alleging that Jones made biased and racist comments during a lecture she gave earlier this year at the University of Pennsylvania School of Law – including that blacks and Hispanics are more likely to commit violent crime and that Mexican Nationals would rather be on death row in the U.S. than in a Mexican prison. Mexico abolished the death penalty in 2005.

Roberts moved the complaint on a request from Fifth Circuit Chief Judge Carl Stewart – who was responding, in turn, to a request to remove the complaint to another circuit made in the original complaint, filed by the Austin NAACP, Texas Civil Rights Project, and LULAC, among others.

The D.C. court will now be tasked with investigating the complaint "and any pending or new complaints relating to the same subject matter," Roberts wrote.

"DC circuit reviewing federal judge's alleged racially discriminatory comments," is the AP filing by Frederic J. Frommer, via the Greenfield Daily Reporter.

The council can take several actions, ranging from a public reprimand to referring the case to the national Judicial Conference of the United States, if the council believes the conduct is grounds for impeachment.

Today's Fort Worth Star-Telegram publishes the editorial, "Judge’s comments raise questions about impartiality."

It’s a mythical ideal that judges are strictly impartial.

They may have preconceived notions about the law, along with well-informed viewpoints based on their experience. And they’re only human; they may form opinions about cases or develop impressions about society based on the perspective those cases provide.

But judges are entrusted with basing decisions on the facts before them and the applicable law, not their presumptions or conjectures. They’re supposed to put aside any biases that might interfere with them acting fairly.

And:

What’s still unresolved, though, are questions about how Texas determines which inmates are too mentally impaired for the death penalty — and how far judges can go in public comments before they undermine public confidence in the courts.

Earlier coverage of the ethics complaint filed against Judge Edith Jones begins at the link.

The ethics complaint filed against Judge Edith Jones is available in Adobe .pdf format.

Texas, Florida Execute

Texas and Florida both conducted executions Wednesday night.

It was Texas' seventh execution of 2013; the 499th post-Furman Texas execution since 1982, Texas is responsible for more than 37% of the nation's  post-Furman executions.

The Longview News-Journal posts the AP report, "Texas executes man who confessed to killing 5," on the execution of Elroy Chester.

The execution was carried out after the U.S. Supreme Court rejected a last-ditch appeal from Chester’s attorneys that focused on the conduct of a judge on the 5th U.S. Circuit Court of Appeals who ruled earlier in Chester’s case.

"Van Poyck executed for role in Palm Beach County officer's death," is the South Florida Sun-Sentinel report by Ben Wolford. It was Florida's third execution in 2013.  

William Van Poyck, whose botched jail break in 1987 left a prison guard dead, spent his last day with family, friends and a spiritual adviser.

An executioner injected poison and stopped his heart at 7:24 p.m. Wednesday at the Florida State Prison in Starke, satisfying his final words, “set me free,” and nullifying 26 years of legal maneuvering to save his life. The U.S. Supreme Court and Gov. Rick Scott rebuffed last-minute appeals for a stay and for clemency.

The Texas and Florida executions were the 14th and 15th of the year in American death penalty states.  To date there have been a total of 1,335 post-Furman executions since 1977.

Earlier coverage of the Texas and Florida cases, at the links.

New 5th Circuit Panel Denies Chester Stay

The new Fifth Circuit panel included Judges Davis, Clement, and Higginson.

IT IS ORDERED that petitioner Elroy Chester's motion for stay of execution is DENIED. His motion to recall mandate also is DENIED.

Pursuant to the court's opinion order of June 11, 2013, re-assigning the matter to us, cognizant of court authority under 5th Cir. R. 41.2, and having reviewed the record in this matter, all legal submissions, written and oral, as well as the court's earlier majority and dissenting opinions and their subsequent history, and in light of our court's earlier and later-reinforcing caselaw, we perceive no injustice, nor any incorrectness, in the affirmance of the district court's order denying habeas relief, and we correspondingly decline to exercise our discretion to recall mandate.

Earlier coverage of Elroy Chester's case begins at the link.

Florida Prepares to Execute

"Man Set to Be Executed by Lethal Injection," is the AP report by Kelli Kennedy.  It's via the Lakeland Ledger.

William Van Poyck argues he doesn't deserve to be executed for the murder of prison guard Fred Griffis, insisting he didn't fire the fatal shots. Griffis' family said even if that's true, it doesn't matter -- they say he planned the botched 1987 attempt to free an inmate Griffis was escorting to a dermatologist and made sure he and his partner were armed.

Van Poyck, 58, is scheduled to die by lethal injection today at Florida State Prison in Starke, the second of three executions scheduled within four weeks.

In his appeals, Van Poyck has argued that his partner, Frank Valdes, fired the fatal shots and that if the jury had known that, he wouldn't have been sentenced to death. The Florida Supreme Court last week rejected his latest appeal involving Valdes' widow, who says her husband told her he was the shooter. The justices noted that Van Poyck planned the escape attempt and he and Valdes carried loaded weapons. Courts have rejected similar arguments in the past, including one from a former inmate who also said Valdes confessed to killing Griffis.

Van Poyck "was in on the escape but he didn't know the other guy was going to kill anybody," said Gerald Bettman, his attorney.

The Orlando Sentinel Religion blog posts, "Prayer service Wednesday on scheduled execution of Van Poyck," by Jeff Kunerth.

A prayer service to abolish the death penalty will be held at 4 p.m., Wednesday, June 12, at St. Margaret Mary Catholic Church, 526 N. Park Ave., Winter Park, on the scheduled execution of William Van Poyck.

The service, open to the public, will be led by Father Richard Walsh, pastor of St. Margaret Mary.community.

Florida's Catholic bishops have written a letter to Gov. Rick Scott to stop executions and eliminate the death penalty.

"We urge you to see that the death penalty diminishes us all and contributes to a growing disrespect for the sacredness of all human life. It perpetuates a cycle of violence and feeds on an underlying sense of vengeance in our culture. Human life, given by God, is sacred," the letter said.

Florida has carried out two executions in 2013.  To date, there have been 13 executions in American death penalty states this year; a total of 1,333 post-Furman executions since 1977.

Earlier coverage from Florida begins at the link.

Steven Hawkins Named Executive Director of AI USA

"Amnesty International USA Names NAACP'S Steven W. Hawkins as Executive Director," is the title of a news release issued by Amnesty International USA, via PR NewsWire.

Amnesty International USA's (AIUSA) Board of Directors announced today that it has named Steven W. Hawkins as executive director. As Executive Vice President and Chief Program Officer of the NAACP, Hawkins is a nationally renowned attorney and grassroots advocacy leader at the forefront of social justice issues, including death penalty abolition, criminal justice system reform and defending civil liberties. He will officially become executive director on September 25.

"Steve Hawkins has an innate understanding of grassroots advocacy and the power of people to bring about social change. He will be a galvanizing force in inspiring and engaging our members, volunteers, supporters and staff," said Shahram Hashemi, Chair of the Board of Amnesty International USA. "We are excited to have Steve at the helm. He is a leader with the heart, vision and drive to help us win the human rights battles ahead."

And:

Hawkins began his career in social justice as an attorney with the NAACP Legal Defense Fund, where for nearly six years he represented African American men facing the death penalty. During this period, he investigated and brought litigation that led to the successful release of three teenagers wrongfully convicted in Tennessee. He later became the executive director of the National Coalition to Abolish the Death Penalty (NCADP) where he helped end the death penalty for juvenile crimes. Hawkins then moved into philanthropic work as senior program manager at the JEHT ("Justice,  Equality Human dignity and Tolerance Foundation, and later as program executive at Atlantic Philanthropies, where he directed the foundation's investment in a $60 million campaign to protect and defend human rights against abusive national security policies.

Related posts are in the activism category index.

Sister Helen: What I Would Tell the President

Politico posts, "Sister Helen Prejean: Death penalty still ‘political game’."  It's by Patrick Gavin.

If Sister Helen Prejean, author of the book “Dead Man Walking,” got a chance to spend five minutes with President Barack Obama, she would implore the president to rethink his stance on the death penalty.

“I understand now the political game of the death penalty,” Prejean told POLITICO. “He knows he wouldn’t have had a snowball’s chance in hell of being elected president if he didn’t say he was in favor of the death penalty.” (The president has said he favors the death penalty for certain “heinous crimes.”)

“If I had five minutes with him, I’d say, ‘President Obama, do you know what overwhelmingly has been the profile of people who have actually been sentenced to death, actually executed? Eighty percent of them are poor people who kill white people. When people of color get killed in this country, it doesn’t even hit the radar screen in district attorneys’ offices.’” Prejean says that far too often politicians use the death penalty as a way to talk tough about crime, but they don’t really want to look at the issue seriously.

“It’s just political rhetoric,” Prejean said. “They say they favor the death penalty and think they can just move on.”

Related posts are in the activism category index.

Wednesday

I am away from the office this morning.  Posts will resume early this afternoon.

New 5th Circuit Panel Ordered to Consider Elroy Chester Stay - Updated

The three-judge panel that earlier rejected a stay for Elroy Chester has ordered a new panel to consider his request.  The order in Chester v. Thaler is available in Adobe .pdf format. 

The basis for the order is the recent ethics complaint filed against Judge Edith Jones, a member of the panel.  Another member of the panel is Chief Judge Carl E. Stewart, to whom the complaint was directed; he will decide what happens to the complaint next.  Judge Jones dissented.  Judge James L. Dennis, the third member of the panel, concurred and wrote seperately to express his opinion that the court should stay the execution in order to provide the new panel with sufficient time to examine the questions.

The Austin Chronicle posts, "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal," by Jordan Smith.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February. In addition to claiming that blacks and Hispanics are more violent than are whites, and that claims of racism and innocence made by death row inmates are mere "red herrings," Jones also opined that the Supreme Court decision that outlawed execution of the intellectually disabled does the disabled a disservice and represents a "slippery slope" in death penalty jurisprudence. Indeed, according to the complaint filed last week, Jones also referred to assertions of mental retardation made by death row inmates as "red herrings," and said that the "manner in which these defendants committed their crimes proved that they were not 'mentally retarded,'" reads the complaint.

During the lecture Jones allegedly singled out Chester's case (among a handful of others) for derision, even though his execution at that time had not yet been carried out, and his case may yet have come back to the Fifth Circuit, and to her, for review. According to an affidavit sworn by death penalty attorney Marc Bookman, who runs the Atlantic Center for Capital Representation, that was filed with the complaint, Jones made "special mention of Elroy Chester," during the February lecture. "She said that Chester claimed to be mentally retarded and had been slow in school but he still managed to go on a burglary spree," reads the affidavit. "In the context of talking about this case and others involving claims of mental retardation, Judge Jones commented that she believes it may do a disservice to the mentally retarded to exempt them from death sentencing."

"Appeals panel rethinks killer’s case after judge’s comments," is the AP filing, via the Austin American-Statesman.

Jones denied the motion Tuesday and dissented in a ruling by a three-judge panel that Chester’s case be reassigned to another three-judge panel of the appeals court. James Dennis, one of the judges on the previous panel that included Jones, said Chester’s scheduled execution should be postponed so the new panel has adequate time to consider the case.

“Chester’s execution, of course, will moot those issues, and any constitutional injury to his rights will be irreparable,” Dennis said in his concurring opinion.

The Houston Chronicle and San Antonio Express-News report, "5th circuit panel agrees to exclude Jones from death penalty appeal," by Lise Olsen.

Two judges on the U.S. 5th Circuit Court of Appeals agreed Tuesday to reassign review of the case of a man facing execution Wednesday to a new panel that would exclude Judge Edith Jones, who is the subject of a formal misconduct complaint.

One of the judges, James Dennis, also supported a stay in the pending execution of convicted killer Elroy Chester, which remains scheduled for 6 p.m.

The new three-judge panel is expected to decide whether to stay Chester's execution.

Earlier coverage of Elroy Chester's case begins at the link.

Texas Execution Scheduled for Wednesday

"Death Watch: Chester to die June 12," is by Jordan Smith for the Austin Chronicle.

In all, Elroy Chester is responsible for at least five murders – including the February 1998 murder of a well-regarded Port Arthur fireman, Willie Ryman III, whom Chester shot after Ryman surprised him during a home invasion; Chester had also raped two of Ryman's nieces. For that crime he was sentenced to die.

Indeed, there is no doubt that Chester is a brutal killer, who terrorized Port Arthur during a crime wave that lasted 11 months – in addition to Ryman, he shot and killed at least four other people. What remains in question, however, is whether Chester is mentally retarded. To date, the courts have declared that he is not, meaning he has been cleared to be executed, scheduled now for June 12. He would become the 499th Texas inmate executed since reinstatement of the death penalty in 1976.

5th Circuit Judge Edith Jones reportedly discussed Chester's case at her UPenn Law appearance, which has resulted in an ethics complaint being filed against her.  Chester's attorneys have filed a motion for a stay, citing her comments, in the New Orleans based federal appeals court.

Earlier coverage of the ethics complaint begins at the link.  Earlier coverage of Elroy Chester's case and Texas' mental retardation evaluation standards is also available.  Related posts are in the mental retardation category index.

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

If Elroy is executed, it would be Texas' seventh execution of 2013; the 499th post-Furman Texas execution since 1982,  To date, there have been 13 executions in American death penalty states this year; a total of 1,333 post-Furman executions since 1977.

Unless a stay is issued, Houston's KPFT-FM will host Execution Watch on the web and its HD radio broadcast signal beginning at 6:00 p.m. (CDT), tomorrow evening.

Euro News posts, "Support for death penalty stable in US as Texas approaches 500th execution," by Dr. Stefan Grobe.

Texas is moving closer to an unflattering jubilee: the 500th execution since the death penalty was reinstated in 1976 – barring any last-minute stays or reprieves. This Wednesday, June 12, Texas will execute its 499th person, and execution no. 500 is scheduled for June 26. Texas uses the death penalty more than any other state, and the competition does not even come close.

No. 2 on the execution list is Virginia, which has killed 110 people – and only five since 2010. Texas has executed more people than the next six states (Virginia, Oklahoma, Florida, Missouri, Alabama and Georgia) combined. It wasn’t always so. Texas executed fewer than 10 people a year until 1992, when executions spiked under then-Governor Ann Richards. They peaked under George W. Bush, who sent 37 people to the death chamber in 1997 and 40 in 2000.

According to TDCJ, eight additional Texas execution dates have been set for 2013.

Colorado Roundup

AP posts, "Prosecutor in Nathan Dunlap case: Prepare for execution despite reprieve," by Dan Elliott.  It's via the Boulder Daily Camera.

Prosecutors asked a judge Monday to keep the case against convicted killer Nathan Dunlap active, in case a future governor decides to reinstate his death sentence.

Even though Gov. John Hickenlooper granted Dunlap a temporary reprieve last month, prosecutors want Arapahoe County District Judge William Sylvester to at least start considering any issues the defense planned to raise before the execution was halted.

"The issues that can be addressed should be addressed," prosecutor Matt Maillaro told Sylvester during a hearing Monday with lawyers in the case. Dunlap, convicted of killing four people in 1993 at a Chuck E. Cheese, didn't attend the proceeding.

Prosecutors want Sylvester to tell defense lawyers to file any motions they have in mind so they can be argued. The defense said that would be speculative and outside the court's power.

Defense attorney Phil Cherner said public standards are evolving, and the death penalty might someday be considered cruel and unusual punishment. It's "equally plausible" that whoever succeeds Hickenlooper will decide to keep the reprieve in place, he said.

Sylvester said he would issue a ruling soon.

The Daily Camera also publishes an OpEd, "Let's end the death penalty, not just kick the can," by Charlie Danaher.

Showing neither the conviction to allow Nathan Dunlap to be executed, nor that to support legislation that would have ended the death penalty in Colorado, Gov. Hickenlooper appears to have taken the easy out when he temporarily commuted Nathan Dunlap's execution. But at least he spared Dunlap's life, and, perhaps, before our state puts another person to death, we can have a real discussion about the legitimacy of capital punishment.

In any argument opposing capital punishment, it is extremely important that we be sensitive to the family and loved ones of those killed. Opposing the death penalty does not, in any shape or form, suggest that the actions of the killers are anything less than horrific.

There are several reasons to not kill Nathan Dunlap. Or anyone else, for that matter.

As we review the reasons, let's keep in mind the four purposes of punishment: Rehabilitation; Defense against the criminal; Deterrence; and Retribution.

Earlier coverage from Colorado begins at the link.

More California Commentary

The Los Angeles Times publishes the column, "Manson and 'Night Stalker' murderers and California justice," by Patt Morrison.

The death penalty is much more expensive in California than life in prison without parole -- about $184 million a year more. A three-year study found that each execution costs the state nearly a third of a billion dollars. Billion, with a “b.”

Death penalty economics, compounded with concerns about the possible factual innocence of death row inmates, explains the mend-it-or-end-it reasoning that has shifted attitudes in California, although not enough to push the anti-death penalty measure over the 50% mark last November. And Ramirez is the gruesome poster boy for death penalty supporters, who argue that if ever anyone deserved to be executed, it was the Night Stalker.

Two days before Ramirez died, a former death row inmate named Leslie Van Houten had her 20th parole hearing. She was turned down, again.

Had TV cameras been allowed into the hearing, they would have shown Van Houten as gray-haired and wrinkled and looking older than her 63 years. She was a 19-year-old follower of Charles Manson when she and her cohorts murdered Leno and Rosemary LaBianca in their Los Feliz home in August 1969.

Earlier coverage from California begins at the link.

DNA: A Test for Justice

That's the title of an OpEd by former federal district judge and FBI Director William Sessions.  It's subtitled, "Increased DNA testing can assure the guilty are convicted and the innocent exonerated.

In two courts, half a country apart, judges last month grappled with the reliability of testimony and forensic hair evidence analysis that Federal Bureau of Investigation agents provided in criminal trials decades ago. John Norman Huffington, imprisoned nearly 32 years in Maryland, had his conviction overturned by a judge after DNA testing revealed that the hair that was presented as key evidence against Mr. Huffington did not belong to him. Willie Jerome Manning, mere hours from death, won a stay of execution from the Mississippi Supreme Court to give his lawyers time to conduct DNA testing, which they believe could exonerate him. FBI testimony in both cases provided key evidence that led to their convictions.

Most of us are aware of the need for accurate and scientifically reliable evidence to ensure that those guilty of crimes are convicted and properly sentenced, and that those wrongfully convicted are exonerated. In Mr. Huffington's trial for the 1981 murders of two people in Harford County, at a time when DNA testing was not yet available, an FBI agent testified that the microscopic hair analysis was 99.98 percent accurate in determining that hair found in the bed where one victim was killed belonged to Mr. Huffington. This April, DNA testing revealed that the hair samples were in fact not his. In overturning his conviction and ordering a new trial, the judge noted that "due to the substantial weight given to the microscopic hair analysis by the jury … as well as the results of the DNA test [directly contradicting the FBI agent's testimony] … there is a significant possibility that the outcome of [Mr. Huffington's] case may have been different."

In Mr. Manning's trial for the 1992 murders of two college students, an FBI agent testified that microscopic hair analysis could identify a hair sample as belonging to Mr. Manning, to the exclusion of all others. Mr. Manning was convicted in 1994, in part based on the FBI agent's testimony. But such testimony, as a U.S. Department of Justice review found, "exceeded the limits of the science," and therefore the testimony was erroneous and "invalid." Had DNA testing (relatively new at the time) been performed on the hair sample, we would have had far greater certainty about the outcome in Mr. Manning's trial.

These are two examples among the potentially thousands of cases in which the reliability of FBI forensic analysis and testimony, particularly microscopic hair analysis, has been called into serious doubt.

Related posts are in the DNA category index.  Sessions is active in the Constitution Project.

Duane Buck Case Featured on HuffPost Live Today

The Duane Buck case will be featured on Huffington Post Live today at 1:00 pm CDT (2:00 pm EDT).  NAACP LDF attorney Christina Swarns and former Texas Governor Mark White will discuss the case.

LDF has also released a new video on the case.  Here's more from the news release:

Today, the NAACP Legal Defense & Educational Fund, Inc. released a new video highlighting the racial discrimination in the Texas death penalty system and the shocking case of death-sentenced prisoner, Duane Buck.  Mr. Buck was sentenced to death in Harris County (Houston), Texas, after his trial prosecutor elicited testimony from a psychologist indicating that Mr. Buck was more likely to be dangerous because he is Black. The video was produced by award-winning documentary filmmakers Emily Kunstler and Sarah Kunstler.

The video is “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case.”

“A Broken Promise in Texas” contains powerful, never-before-seen interviews with Texas civil rights leaders, elected politicians, the surviving victim in the Buck case, one of Mr. Buck’s trial prosecutors and Mr. Buck’s family members, among others, calling for a new, fair sentencing hearing.  The video’s release comes at a critical juncture, as Mr. Buck may soon be at risk of execution:  the Texas Court of Criminal Appeals is currently considering Mr. Buck’s appeal for a new sentencing hearing free of racial bias and the Court is expected to rule in the coming weeks.
 
"Everyone who sees this powerful video will come away from it with the alarming realization that if Duane Buck can be sentenced to death - and possibly executed -- based on racial stereotypes, then our criminal justice system is broken not just for Mr. Buck, but for all of us," said Christina Swarns, Mr. Buck's attorney and Director of the NAACP Legal Defense & Educational Fund, Inc.'s Criminal Justice Project.  "A properly functioning criminal justice system does not condone the flagrant exploitation of racial fears and stereotypes to secure a death sentence.  It cannot countenance a racially biased and unfair execution."
 
Former Texas Governor Mark White, who oversaw the executions of 19 individuals, narrates the video and urges citizens to take action: “It’s unfair to have someone on death row if they are not supposed to be there … Don’t wait until it is too late … Join me and more than 100 civil rights leaders, clergy, former prosecutors, and judges in calling for a new and fair sentencing hearing for Mr. Buck. Tell Texas to keep its promise.” 
 
Over 50,000 people from Texas and around the country have signed a petition calling on Texas officials to grant Mr. Buck a new sentencing hearing. The newly released video exposes the injustice of Duane Buck’s case and encourages support for the petition for a new, fair sentencing.

As the video shows, at Mr. Buck’s 1997 capital sentencing hearing in Harris County, the trial prosecutor elicited testimony from a psychologist that Mr. Buck posed a future danger because he is black. The prosecutor relied on this testimony in arguing in favor of a death sentence. The jury then found Mr. Buck would be a future danger and sentenced him to death. 
 
Three years after Mr. Buck’s capital trial, in 2000, then-Texas Attorney General (now U.S. Senator) John Cornyn identified seven cases, including Mr. Buck’s, in which the State of Texas impermissibly relied on testimony linking race and dangerousness to secure a death sentence. The Attorney General promised to support new sentencing hearings for the seven identified defendants and kept its promise as to six of them. But Texas reneged on its promise to Mr. Buck and is now aggressively pursuing his execution.
 
“It is virtually unprecedented for a state official to confess error in a capital case. And in this situation, [the Attorney General] confessed error in six capital cases,” said Kathryn Kase, Executive Director of Texas Defender Service, in the video. 
 
Mr. Buck’s life was saved by the U.S. Supreme Court before his September 2011 scheduled execution. Two U.S. Supreme Court justices agreed that Mr. Buck’s death sentence requires review because “our criminal justice system should not tolerate” a death sentence “marred by racial overtones.”
 
“When we apply the death penalty and we seek criminal sentences, we have to do so in a color-blind manner. Allowing this kind of racial testimony in any capital sentence proceeding undermines the entire justice process,” said Kate Black, Mr. Buck’s attorney, in the video. 

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

The Latest From California

"Even Richard Ramirez dodged California's death penalty," is the Los Angeles Daily News editorial.  It's available as, "California's death penalty is dead," in the Reporter.

Richard Ramirez is dead. The serial killer dubbed the Night Stalker was the face of evil for many Southern Californians. And he was the face of something else -- the futility of this state's system of capital punishment.

Ramirez was 25 when he was captured in 1985. He was 53 when he died Friday morning at San Quentin State Prison. So he lived most of his life with the death penalty hanging over him but never getting even that sterile version of the satanic horror he perpetrated on 13 murder victims.

And:

The system itself was on Death Row last November when California voters considered Proposition 34, which would have ended the death penalty in the state and converted the sentences of Death Row inmates to life in prison without the possibility of parole. The argument, a good one, was that it was costing the state more than $100 million a year on legal battles and Death Row incarceration.

Yet since the state resumed executions in 1992, only 13 condemned convicts have actually been put to death, while more than 700 others continue to sit in prison; as of last fall, 84 Death Row inmates had died of natural causes.

Voters defeated Proposition 34, and the death penalty survived -- though, in name only.

"Initiative supporters want to bring California death penalty back to life," is by Neil Nisperos of Inland Newspapers.  It's via the Contra Costa Times.

Frustrated by a recent appeals court ruling that invalidates the state's lethal injection procedures, supporters of the death penalty in California plan to launch a campaign to bring the suspended system back to life.

Death penalty supporters hope to circumvent legal challenges to executions through a new initiative that would put in place a single-drug injection procedure for inmates condemned to death, such as the infamous Night Stalker serial killer Richard Ramirez, who died Friday of natural causes.

Advocates of the single-injection protocol seek to avoid supply and legal issues related to the triple-drug protocol used prior to a 2006 moratorium on the death penalty. The ballot initiative would also reform the appellate process to ensure executions for Death Row inmates who have exhausted all appeals and where questions of guilt don't exist.

The proposed initiative would be carried by a coalition of law enforcement, district attorneys, and death penalty proponents who opposed Proposition 34 in the 2012 statewide election. That measure, defeated by 52 percent of voters, would have abolished the death penalty and replaced it with life in prison without parole.

Earlier coverage from California begins at the link.

RJA Editorial Roundup

The New York Times publishes the editorial, "Racial Injustice in North Carolina."

The North Carolina Legislature repealed the state’s Racial Justice Act this week, and the Republican governor, Pat McCrory, is expected to sign the bill. But the state cannot erase the detailed and irrefutable proof of ugly racial bias that led a state trial judge to resentence four death row inmates to life without parole because of this statute.

Passed in 2009, the law made North Carolina the first state in the country to give death row inmates the chance to have their sentences changed if they proved that state prosecutors significantly discriminated on the basis of race — for example, in selecting jurors. Judge Gregory Weeks tried one case on its own and three others together; in 2012, he found the bias of prosecutors intentional in all four cases.

And:

Despite the repeal of the Racial Justice Act, there are still about 150 other cases pending under the act. It is unclear whether these cases must be allowed to go forward under the State Constitution.

The number of death sentences issued in the state declined from 33 in 1993 to 1 so far this year, and North Carolina has executed no one since 2006 — indicators that there is no need for this option to be part of the criminal justice system. The persistence of racial bias in death penalty prosecutions makes abolishing capital punishment even more urgent.

"The Racial Injustice Act," is the Wilmington Star News editorial.

The Racial Justice Act is dead – at least it will be if Gov. Pat McCrory signs its repeal or, as he did with another controversial bill, simply lets the repeal become law. Technically, the repeal – thrown in as an aside to a bill to speed up the executions of death-row inmates – still has another vote to go on Tuesday, when the Senate takes a vote on language reconciling the House and Senate versions. But that is just a formality.

Senate Bill 306, sponsored by Sen. Thom Goolsby, R-New Han­over, eliminates a tool that in only a handful of cases has shown how prosecutors used discretionary challenges to exclude qualified black jurors at a much higher rate than white jurors. It allowed inmates to prove their case – the burden was on them – by using statistics showing a pattern of bias in the justice system as well as the facts in their own case. If they won, the best they could do was life in prison with no parole.

Credible studies and decades of history tell us that the justice system in North Carolina is far from colorblind. The Racial Justice Act was an effort to ensure that sentences were imposed and carried out based only on the facts of the crime, not the race of the defendant or the victim.

The Greensboro News-Record publishes the editorial, "The execution hurry."

The legislation gives license to a physician, nurse or pharmacist to actually administer a lethal injection, contradicting the ethical standards of their professions. It’s an extraordinary step by a legislature to assert its judgment regarding medical matters over that of medical organizations themselves, but that’s exactly what this does.

It infuriates Dr. Charles van der Horst, a professor at the UNC School of Medicine in Chapel Hill and an ardent opponent of capital punishment. He suggests the politicians carry out executions themselves.

“Why do they need doctors, nurses and pharmacists, who want to help people, not kill them?” he asked.

He added that physicians who do participate should be ostracized within the profession — and he’ll lead the effort.

When this bill arrives on his desk, McCrory should consider two questions.

Does he want to side with the legislature against the positions of the American Medical Association and N.C. Medical Board?

And, does he really want to break Easley’s record and become North Carolina’s leading execution governor of modern times?

He should say no on both counts and veto the bill. It is not worthy of our state.

Earlier coverage of the North Carolina legislation begins at the link.

Florida Adopts New Standard for Expert Evidence

That's the title of a news report from ReutersLegal.  The change has implications for both civil and criminal trials.

Florida has become the latest state to adopt new legislation that will make it tougher to admit expert evidence in court cases, but some plaintiffs' lawyers say the move could make litigation more costly and time-consuming.

Florida's Republican Governor Rick Scott on Wednesday signed into law H.B. 7015. The law, which is scheduled to go into effect on July 1, replaces the so-called Frye standard with the more rigorous Daubert standard.

Under the U.S. Supreme Court's 1923 decision in Frye v. U.S., expert evidence is admissible when the expert's methods or practices are generally accepted within the scientific community. In the 1993 decision Daubert v. Merrell Dow Pharmaceuticals, that standard was replaced with a more expansive test, which requires a judge to use a multipart test to determine whether expert testimony is sufficiently reliable.

While federal courts and a number of states including Arizona and Wisconsin have adopted Daubert, Florida remained a Frye state.

Florida's expert evidence standards have made the state a destination for "litigation tourism," making it more attractive to lawyers whose experts were disqualified under a more exacting Daubert standard, according to Florida attorney Stephen Mahle, who specializes in Daubert issues.

After several unsuccessful attempts to adopt the Daubert standard, H.B. 7015 was passed by the Florida Senate and the state House of Representatives on April 29. Scott signed it into law on Wednesday, saying it would create a "fairer system."

Earlier coverage from Florida begins at the link.

Oklahoma Commutation Recommendation Moves to Governor

AP posts, "Clemency recommended for Okla. death row inmate," by Tim Talley.  It's via the San Francisco Chronicle.

The Oklahoma Pardon and Parole Board recommended clemency Thursday for a death row inmate scheduled to be executed this month for the rape and murder of his girlfriend's mother.

The five-member board voted 4-1 to recommend that the death sentence of Brian Darrell Davis be commuted to life in prison without the possibility of parole. The recommendation now goes to Gov. Mary Fallin for approval or rejection.

Members of Davis' family wept and hugged each other when the board's decision was made.

"A weight lifted off of all of us," said his mother, Yvonne Davis. "Brian does deserve a second chance."

Family members and Davis' defense attorney, Jack Fisher, said they will urge Fallin to grant the recommendation. Davis is scheduled to be executed June 25, but Fallin has the authority to grant two 30-day reprieves in order to study the recommendation and meet with prosecution and defense attorneys, officials said.

And:

The board recommended clemency after Davis took responsibility for the victim's death and apologized. Board member Richard Dugger cast the sole vote against clemency.

"I would like to give my apologies to the Sanford family," Davis told the board during a video teleconference from the Oklahoma State Penitentiary at McAlester. "I would like to apologize for putting my family through this. I'm very apologetic for what happened."

Related posts are in the clemency index.

Ohio Prosecutor Fired for Misconduct

"Cuyahoga County prosecutor fired after posing as an accused killer's girlfriend on Facebook to try to get alibi witnesses to change their testimony," is James F. McCarty's report in the Cleveland Plain Dealer.

A Cuyahoga County prosecutor was fired this week after he admitted posing as a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.

Former Assistant County Prosecutor Aaron Brockler insisted in an interview at his Lakewood home Thursday that he had done nothing wrong and shouldn’t have been fired.

"Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth," said Brockler, 35, a county prosecutor since 2006. "I think the public is better off for what I did."

County Prosecutor Timothy J. McGinty said he fired Brockler for good cause.

"This office does not condone and will not tolerate such unethical behavior," McGinty said. "He disgraced this office and everyone who works here."

McGinty continued: "By creating false evidence, lying to witnesses as well as another prosecutor, Aaron Brockler has damaged the prosecution’s chances in a murder case where a totally innocent man was killed at his work."

Brockler was the lead prosecutor in the aggravated murder case of Damon Dunn, 29, of Cleveland, who was scheduled to stand trial for the shooting death of Kenneth "Blue" Adams on May 18, 2012, at an East Side car wash.

Related posts are in the prosecutorial misconduct category index.

Kentucky Judicial Update

The Louisville Courier-Journal reports, "Judge threatens to strangle lawyer, gets suspended," by Andrew Wolfson. 

The Kentucky Judicial Conduct Commission voted Tuesday to temporarily suspend Senior Judge Martin McDonald, despite his claims he has completed his service and will never sit on the bench again.

The commission removed McDonald with pay pending the resolution of charges that he violated the canons of ethics in two cases, including one in which he threatened to strangle an assistant public advocate and disparaged the attorney’s case.

In the first case, it said he refused to let a litigant who was representing himself last August present any argument because he was not a lawyer.

In the second, the commission said in the death penalty case of Roger Dale Epperson last September, McDonald in an “intemperate voice” told assistant public advocate David Barron that “if you ever call me on my cellphone again, I’ll strangle you” and get “your law licensed yanked.”

The charge says McDonald further called motions for new trials based on ineffective counsel “distasteful” and said Barron’s argument “bordered on the ridiculous.”

And:

A former deputy sheriff known for occasional controversies on the bench, McDonald, 55, was removed from two cases last year by Kentucky Chief Justice John D. Minton Jr.

"Judge who angrily lectured appellate counsel in death-penalty case is suspended with pay," is ABA Journal coverage by Martha Neil.

McDonald had argued, through his counsel, Timothy Denison, that the state Judicial Conduct Commission lacked jurisdiction because he has completed his 600-day assignment as a senior judge and does not plan to serve again. However, the commission voted Tuesday to suspend McDonald because it didn't have a record that he had completed paperwork concerning his judicial service in May, the Courier-Journal reports.

“The commission felt the allegations were serious enough that he should be suspended, if in fact he had any more days to serve,” chairman Steve Wolnitzek told the newspaper. “If he has completed his service, obviously the order of suspension would be moot. If he’s done, he’s done.”

Denison says his client plans to appeal on principle and to prevent further damage to his reputation.

Earlier coverage of the Kentucky judicial matter begins at the link.

Commentary on Judge Jones' Ethics Complaint

"Judge Edith Jones reportedly sees the death penalty as some kind of mercy," is New Orleans Times-Picayune columnist Jarvis DeBerry's take.

The death penalty. You've heard it called many things: Vengeance, barbarism, deterrence, justice. But even if you're a faithful, church-going Christian, you may never have heard the death penalty described as Edith Jones, a judge at the federal appeals court in New Orleans, is said to have described it in February. The death penalty, she reportedly said, is an accelerant toward salvation.

And:

Jones has long had a reputation for being rather stonyhearted toward death row inmates. In October 2000, she and another judge upheld the death penalty for Calvin Burdine, a Texas man whose lawyer had slept through much of Burdine's trial. But if she sees the death penalty as a blessing, maybe we should think of her as Burdine's spiritual advocate. She wouldn't have gotten an NAACP award for that ruling though, Burdine being white.

It's not that Jones refuted the testimony of the jurors and the clerk of court who agreed that Burdine's lawyer slept "a bunch" and for "long periods of time." But Burdine, according to a decision that got Jones' approval, had failed to show that his lawyer had napped during "a critical stage" of his trial.

If your life is on the line, you're probably inclined to think that every minute and every second of your trial is a critical stage. Appropriately, a majority of the 5th Circuit disagreed that the napping was no big deal and ordered a new trial for the defendant. Burdine struck a deal with prosecutors after that. In 2003 he pleaded guilty and got three life sentences. His lawyers said then that their client was happy that he was no longer facing execution.

Talking Points Memo posts, "Dem Rep Calls For Investigation Into Judge Accused Of Racial Bias," by Catherine Thompson.

Rep. Cedric Richmond (D-LA) called for an investigation into allegations that a federal judge made racially biased remarks in a speech at the University of Pennsylvania Law School on Wednesday, according to the New Orleans Times-Picayune.

And:

"The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis," Richmond wrote in the letter, as quoted by the Times-Picayune. "These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal."

Additional blog commentary includes:

'Allegedly Racist Judge Has a History of Saying Awful Stuff," by Jesse Lava at Huffington Post.  He's the Campaign Director at Brave New Foundation.

National Review Bench Memos blog posts, "A Disturbing Story About Judge Edith Jones," by  Gerard V. Bradley.

Earlier coverage of the controversy begins at the link.

Continuing Coverage of Judge Jones' Ethics Complaint

The ethics complaint filed against 5th Circuit Judge Edith Jones is available in Adobe .pdf format.  Other documents filed with the complaint are also available from the Texas Tribune.

"Judge in hot water: Allegedly said minorities are prone to violence," is by Ben Brumfield and Marlei Martinez at CNN.

Civil rights groups filed a complaint this week against a federal judge in Houston after she allegedly said during a lecture that some minorities are prone to violence.

Judge Edith Jones, who serves on the 5th U.S. Circuit Court of Appeals and was a Bush-era Supreme Court frontrunner, allegedly made the comment while speaking on the death penalty to The Federalist Society at the University of Pennsylvania in February.

And:

Jones was on President George W. Bush's short list for the U.S. Supreme Court in 2005, though legal observers remarked at the time that her reputation has a staunch conservative -- firmly upholding the death penalty and vocally critical of the Roe v. Wade decision, among other issues -- hurt her odds.

"The decision for which Judge Jones is really best known is her opinion saying, 'While I'm a lower court judge, I will apply Roe v. Wade, but I think it was wrongly decided and should be overruled,'" Supreme Court expert Tom Goldstein told CNN. "That really typifies her role as a lower court judge but signals what she would do if she became a Supreme Court justice."

Bloomberg News posts, "Texas Judge Accused of Misconduct for Remarks on Race," by Sophia Pearson.

Edith Hollan Jones, a federal appeals judge in Texas, is the subject of a judicial misconduct complaint from a coalition of civil rights groups over comments she made about race and the death penalty.

During a February event at the University of Pennsylvania Law School in Philadelphia, Jones said black and Hispanic people are “predisposed to crime” and “prone to commit acts of violence,” according to the complaint filed in New Orleans by the League of United Latin American Citizens, the Texas Civil Rights Project and the Austin, Texas, chapter of the National Association for the Advancement of Colored People.

Jones, 64, also allegedly said death sentences provide a positive service to capital defendants, who are likely to “make peace with God” when facing imminent execution. She said that capital defendants who raise claims of “mental retardation” abuse the system and that claims of racism, arbitrariness or innocence are “red herrings” used by death-penalty opponents, according to a copy of the filing supplied by the groups.

And:

The complaint was filed with Chief Circuit Judge Carl Stewart, who must review it and decide whether it should be dismissed or referred to a special committee. Stewart may conduct a limited inquiry in determining what action should be taken under rules established by the Judicial Conduct and Disability Act.

John Council writes, "Complaint: Judge Edith Jones's Speech Showed 'Racial Bias'," for Texas Lawyer.

The complaint arises primarily from a lecture Jones gave on Feb. 20 entitled "Federal Death Penalty Review" at the University of Pennsylvania School of Law.

The complaint alleges Jones made the following points during her lecture:

• The U.S. system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
• Certain "racial groups like African Americans and Hispanics are predisposed to crime," and are "prone to commit acts of violence," and get involved in more violent and "heinous" crimes than people of other ethnicities;
• Claims of racism, innocence, arbitrariness and international standards are simply "red herrings" used by opponents of capital punishment; and
• Mexican nationals would prefer to be on death row in the United States rather than in prison in Mexico.

The complainants have been unable to locate a video or audio recording of Jones' lecture, says Chuck Herring, a partner in Austin's Herring & Irwin. Herring says he advised the Texas Civil Rights Project in drafting the complaint, in cooperation with other lawyers.

"Circuit Court Judge Edith Jones: How Can I Be Impartial When Everybody Knows Blahs And Browns Are Violent Thugs?" is the Wonkette post.

You guys, have we ever turned you on to Fifth Circuit Judge Edith Jones? We mean, have you ever really listened to her, man? She’s a trip. Such big hits like “Scream At Fellow Judges During Oral Arguments,”  the evocative “Supreme Court is the Source of Moral Decay,” the ear-worm “If You’re Not Actually Raped No Way is it Sexual Harassment,” and her biggest number to date: “It’s Cool if Your Attorney Sleeps Through Your Trial Because Fuck You.”  All of these really pale in comparison to her latest work, though, which we’re calling “Blacks and Hispanics, You So Criminal!”

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones," is Tamara Tabo's Above the Law post.  

Full disclosure before I go further: I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia, and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that.

I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges.

Earlier coverage of the ethics complaint begins at the link.

North Carolina House Casts Final Vote to Repeal RJA

Today's New York Times reports, "North Carolina Repeals Law Allowing Racial Bias Claim in Death Penalty Challenges."  It's by Kim Severson.

After one more perfunctory pass through the State Senate, which already passed a version of the measure, the bill repealing the act will head to Gov. Pat McCrory, a Republican elected last year who has said he will sign it.

A section of the law rescinding the act will now prevent doctors, nurses and other health care professionals from being punished by regulatory boards if they assist in executions. The state medical board in 2007 said it would penalize medical professionals who participated, a policy the State Supreme Court later said was beyond the board’s authority.

The floor debate over the Racial Justice Act began a day after 151 people were arrested in Raleigh as opposition grows to a newly conservative government in a state that has long been considered centrist.

Preserving the act, which was passed when there was a Democrat in the governor’s office and the legislature was not as heavily controlled by Republicans, was among dozens of issues brought up by protesters who have been gathering every Monday since April.

Monday’s protest, organized by the N.A.A.C.P., drew more than a thousand people. Since the protests began, about 300 people have been arrested on trespassing charges and other charges related to acts of civil disobedience.

"N.C. House approves repeal of Racial Justice Act," is the AP filing by Chris Kardish.  It's via the Rocky Mount Telegram.

The N.C. House passed a bill Wednesday clearing the way for executions to resume in the state.

The Republican-controlled House voted mostly along party lines to fully repeal a law that allows convicted murderers to reduce a death sentence to life in prison if they can prove that race played a major role in their cases. The 2009 law had already been weakened last year by Republicans, who successfully pushed to restrict the use of statistics to prove bias and require other forms of evidence.

The House gave initial approval Tuesday after an hour and a half of debate. The Senate already passed the bill but has to approve some minor changes added by the House.

The measure also protects medical professionals who assist in an execution from disciplinary action.

The Yadkin Ripple publishes an OpEd, "Death of Racial (In)justice Act," by Senator Thom Goolsby, leader of the RJA repeal effort.

The prosecutor is a racist and the first-degree, cold-blooded killer is a victim.” This two-part statement is the claim of every legal appeal under the ill-conceived Racial Justice Act (RJA).

Written by death penalty opponents and passed in 2009, RJA has accomplished its desired effect: it has created a de facto moratorium on the death penalty in North Carolina. The poorly written law allows every murderer on death row, regardless of color or ethnicity, to appeal his sentence. Of the 152 inmates on death row, all but four have used RJA to forestall their executions.

Earlier coverage from North Carolina begins at the link.

News From the 9th Circuit

ABA Journal posts, "Was judge senile in death penalty case? 9th Circuit dissenter sees ‘painfully obvious’ incompetence," by Debra Cassens Weiss.

A federal appeals court has discounted allegations that a judge who sentenced a triple murderer to death was suffering from Alzheimer’s disease at the time.

The San Francisco-based 9th U.S. Circuit Court of Appeals reinstated the death sentence for Ronald Deere, convicted of murdering three family members of his ex-girlfriend after she rejected him, the Metropolitan News-Enterprise and Trial Insider report. Deere was seeking a hearing into whether his lawyer was ineffective by failing to challenge the competency of Judge Fred Metheny of Riverside, Calif., during the penalty phase of his retrial in 1986.

Any suggestion that Metheny had Alzheimer’s at the time is supported by “anecdotes recounted by a grand total of three lawyers,” according to the majority opinion (PDF) by Judge Barry Silverman. And those anecdotes “reveal no more than eccentricity as distinguished from dementia,” the court said.

Silverman cited findings that Metheny, who died 25 years ago, was “scrupulously fair and objective” during the proceedings in Deere’s case.

One of the lawyers who submitted an affidavit told of a drawn-out small claims case before Metheny in 1986 in which the judge suddenly stepped down from the bench, started shaking hands with the litigants, and then started shaking hands with people in the spectator section. According to the lawyer, Metheny said he assumed all the people in court were Christians, and remarked upon the lawyers’ inability to settle. He then dismissed the case.

In his dissent, Judge Judge William Fletcher cited that affidavit and other evidence about Metheny's mental state, including a 1987 newspaper article reporting on a survey that found Metheny to be the worst judge on the Riverside bench. “The majority holds that a judge suffering from dementia may sentence a man to death,” Fletcher wrote. “I disagree.”

North Carolina RJA Close to Being Pushed Off Cliff

The News & Observer of Raleigh reports, "NC House vote moves Racial Justice Act closer to repeal."  It's by Lynn Bonner.

The legislature took another step Tuesday toward wiping out a signature law that allows convicted killers to be spared the death penalty if they can show court decisions tainted by racial bias.

The 77-40 vote in the state House was largely along party lines, with one Democrat joining all Republicans to repeal the law called the Racial Justice Act. The preliminary vote – the House will likely take another vote Wednesday – came after more than an hour of debate.

And:

The 2009 law allowed people sentenced to death to use statistical evidence to show that race played a significant part in their trial or in the prosecutor’s decision to seek the death penalty. Successful challengers have their death sentences commuted to life in prison.

Last year, the legislature weakened the law by narrowing the use of statistics. The bill moving through the legislature this year would erase the law. The bill would also prevent regulatory boards from penalizing doctors, nurses and other health care professionals from assisting in executions. In 2007, the N.C. Medical Board said it would punish doctors that participated in executions. State law requires that a doctor be present. The N.C. Supreme Court ruled in 2009 that the board had exceeded its authority.

When the bill passes the House, it must go back to the Senate for a vote of agreement before it’s sent to Gov. Pat McCrory.

The Winston-Salem Journal carries the AP report by Chris Kardish, with Journal staffer John Hinton, "House gives tentative OK to end of Racial Justice Act.

North Carolina legislators gave initial approval Tuesday to a measure that would clear the way for executions to resume in the state.

The Republican-controlled House voted Tuesday to fully repeal a 4-year-old law that allows convicted murderers to get a death sentence reduced to life in prison if they can prove that race played a major role in their cases.

The bill passed 77-40, but Democrats objected to a final vote.

A final vote in the House is likely today.

And:

“No one wants actual racial discrimination, but we also don’t want race to be used as a pretext to stop the death penalty,” Stam said.

He and other Republicans asserted repeatedly — as they have in the past — that the law is a way for Democrats with moral objections to capital punishment to put a de-facto freeze on its practice.

Democrats, particularly African-American members of the caucus, bristled at the suggestion.

Rep. Mickey Michaux, D-Durham, said the claims come from people who can’t fully appreciate racial prejudice, and a life sentence is no reprieve from punishment.

"North Carolina lawmakers want to repeal bias law, restart executions," is by Colleen Jenkins for Reuters, via the Hartford Courant.

Democratic legislators urged their colleagues on Tuesday not to abandon a law they said had helped expose intentional discrimination in cases where inmates had otherwise exhausted their appeals. They said the law was designed to root out prejudice from trials, not to stop the death penalty.

"We remain imprisoned by the past as long as we continue to deny its existence," said Representative Rick Glazier, a Democrat.

Progressive Pulse posts, "Advocates blast repeal of Racial Justice Act," by Rob Schofield.  Here's the beginning:

The good folks at the ACLU-NC issued this statement late yesterday regarding the House’s passage of SB 306 – the bill to repeal the Racial Justice Act:

“The Racial Justice Act has made it possible to shine a light on widespread and indisputable evidence of racial bias in North Carolina’s death penalty system that needs to be addressed,” said ACLU-NC Policy Director Sarah Preston. “It would be beyond tragic if North Carolina turns its back on that evidence and haphazardly rushes to restart executions, knowing full well that our capital punishment process is plagued by racial bias and other flaws that might very well lead to the execution of innocent people. Even those who support the death penalty should agree that capital sentences must be handed down impartially and with respect for due process, yet this bill makes it harder, if not impossible, to achieve that goal.”

Earlier coverage from North Carolina begins at the link.

Additional Coverage of Judge Jones' Ethics Complaint

The ethics complaint filed against 5th Circuit Judge Edith Jones is available in Adobe .pdf format.  Other documents filed with the complaint are also available from the Texas Tribune.

"Complaint: Judge's Death Penalty Remarks Show Racial Bias," is Brandi Grissom's Texas Tribune report.

A federal appellate judge from Texas is facing a judicial misconduct complaint over comments she made regarding race and the death penalty during a speech. 

According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities.

A staff member reached by phone at Jones' office said the judge would not make any comments about the complaint. No audio recording of the speech is available.  

Jones, a former chief judge of the New Orleans-based appeals court who practiced in Houston before her 1985 appointment to the federal bench, wrote the court's opinion last year that allowed the Texas sonogram law to stand. 

At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.

The New York Times coverage is, "Complaint Accuses U.S. Judge in Texas of Racial Bias," by Ethan Bronner.

One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.

Mr. Bookman said in a telephone interview that when the judge was questioned by angry students, “She defensively backed off what she had said or, at least, what the audience had interpreted it to mean.”

Another affidavit is from James M. McCormack, former chief disciplinary counsel for the Texas bar, who said that based on the complaint, “it is my opinion that Judge Jones violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”

Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.

Charles W. Wolfram, one of the country’s experts in legal ethics who is retired from Cornell Law School, said Judge Jones’s alleged statements were a cause of great concern.

“If I were a parent of a black with borderline IQ accused in a capital case, would I be distressed in knowing that Judge Jones was sitting on my case?” he asked in a telephone interview. “Yes, I would. She seems to have made up her mind on these issues. She is slanted. That is the whole point of the impartiality requirement.”

"Federal judge accused of making racial comments," is the AP filing by Will Weissert.  It's via the Austin American-Statesman.

A coalition of civil rights organizations filed a judicial misconduct complaint Tuesday against a conservative federal judge for comments she allegedly made during a speech that are seen as discriminatory.

Judge Edith Jones of the 5th U.S. Circuit Court of Appeals based in New Orleans addressed the University of Pennsylvania law school on Feb. 20. Her comments were not recorded, but five students and one attorney who were in attendance signed affidavits on what was said.

Those were used to generate a 12-page complaint filed in New Orleans stating that Jones “has engaged in conduct that is prejudicial to the effective and expeditious administration of the business of the courts, undermines public confidence in the integrity and impartiality of the judiciary, and creates a strong appearance of impropriety.”

"Federal appeals judge is accused of racial bias for alleged comments on criminal propensities," by Debra Cassens Weiss for the ABA Journal.

Jones is also accused of saying that the death penalty had Biblical origins and it is beneficial to capital defendants. According to the complaint, "She stated that 'a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face God’s judgment.' ”

The complaint also claims that Jones discussed pending cases and that, during a question and answer portion of the program, Jones lost her composure to such an extent that the host of the program abruptly ended the session.

The complaint also targets Jones for a well-publicized confrontation with a colleague during oral arguments in September 2011 in which she accused Judge James Dennis of monopolizing the questioning and told him to “shut up.”

"Complaint alleges federal judge is prejudiced, biased," by Guillermo Contreras for the San Antonio Express-News.

A judge who spent her formative years in San Antonio and was previously considered for a spot on the U.S. Supreme Court is facing a judicial-misconduct complaint over allegations that she made “astonishingly and flagrantly biased” statements against minority groups and people with mental disabilities.

A broad coalition of groups — including an agency funded by the Mexican government (the Mexican Capital Legal Assistance Program), various civil rights organizations, legal ethics experts, and law professors — filed the complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones, who in October relinquished her title as “chief judge” of that court. The New Orleans-based court is one of the most conservative in the country and handles appeals from Texas, Mississippi and Louisiana.

"Judicial complaint cites federal judge for racially charged comments," by John Simerman of the Baton Rouge Advocate.

Another attendee, identified only as “C.C.” in an affidavit, claimed Jones made the statement about black people and Hispanics being “pre-disposed” to crime, adding that “an awful lot of Hispanics are involved in drug trafficking, and that certain races happen to engage in violent crime more than others.”

“The reaction in the room when she made these remarks was one of shock, surprise and offense,” “C.C.” declared. “As a judge, she came off sounding distasteful and tactless.”

Earlier coverage of the ethics complaint is at the link.  As noted in yesterday's Austin Chronicle report, the complaint will be handled by Carl Stewart, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.

Ethics Complaint Filed Against 5th Circuit Judge Edith Jones

The Austin Chronicle posts, "Judge Edith Jones: Blacks and Hispanics More Violent," by Jordan Smith.  Here are excerpts from this must-read:

A complaint filed today by several civil rights groups, including one funded entirely by the government of Mexico, alleges that federal Judge Edith Jones has violated her duty to be impartial and damaged the public's confidence in the judiciary, in statements she made in a public lecture – including that blacks and Hispanics are more violent.

Indeed, Jones also said that a death sentence provides a public service by allowing an inmate to "make peace with God."

Jones, who sits on the 5th U.S. Circuit Court of Appeals – based in New Orleans, its jurisdiction includes Texas – made numerous offensive and biased comments during a February lecture at the University of Pennsylvania School of Law, according to the complaint filed pursuant to the federal Judicial Conduct and Disability Act. The complaint, filed by the Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens (LULAC), and the Mexican Capital Legal Assistance Program (among others) alleges that during her talk – billed as "Federal Death Penalty Review with Judge Edith Jones (5th Cir.)" – Jones violated a number of canons of the code of conduct for federal judges.

The lecture was not recorded, but witnesses recalled a number of Jones' controversial statements. The views she expressed included not only that minorities are responsible for more violent crime than are whites, but also that claims by death row inmates that racism or arbitrariness infected their prosecutions, or that they are actually innocent or even mentally retarded, are merely "red herrings," according to those who attended the lecture. She told the law students and other attendees that she thought the U.S. Supreme Court's ruling outlawing the death penalty for the mentally retarded did intellectually disabled individuals a disservice, and that to create such an exemption from execution was a "slippery slope," reads the complaint.

And:

Complaints such as the one against Jones, signed also by a selection of nationally recognized legal ethicists, are filed with the chief judge of the court of appeals in the circuit where the judge at issue sits – in this case, the complaint goes to Carl Stewart, the current chief judge of the Fifth Circuit. Upon review of the complaint, Stewart is tasked with determining whether it should be dismissed, whether to take corrective action, or whether to appoint a special committee to investigate the allegations. In this case, the filers are asking that the complaint be referred to another circuit for consideration – which, if granted, would remove the matter from Stewart and the Fifth Circuit.

Related posts are in the Fifth Circuit category index.

Obama Nominates Three to DC Court of Appeals

"What Makes the D.C. Circuit Different?" is the title of an editorial in today's New York Times.

Senator Charles E. Grassley, Republican of Iowa, is pushing a bill misleadingly called the Court Efficiency Act, which would eliminate three unfilled seats on the United States Court of Appeals for the District of Columbia Circuit. Next week, President Obama is expected to nominate three highly qualified lawyers for those seats, to bring the court to its full complement of 11 active judges. The Senate should confirm them quickly.

Senator Grassley insists that the District of Columbia court “is the least busy circuit in the country.” But that is simply not true, if measured by the number of pending appeals divided by the number of active judges. By that count, the Court of Appeals for the Eighth Circuit, encompassing seven states in the Midwest, including Iowa, has the lowest workload of any circuit. That was apparently of no concern to the senator when he recently helped speed through the confirmation of Jane Kelly to the court.

Arguing about the caseload, however, misses the point. As Chief Justice John Roberts Jr. explained in a 2005 lecture — “What Makes the D.C. Circuit Different?” — the court has a “special responsibility to review legal challenges to the conduct of the national government.” Because of that role, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, a far greater percentage than are before other appeals courts in the system.

"Obama to Name 3 to Top Appeals Court in Challenge to Republicans," is Michael D. Shear's Times news coverage of the nominations.

President Obama set a confrontation with Senate Republicans in motion on Tuesday morning by naming a slate of judges to a top appeals court and daring his rivals to block their confirmations.

In a formal Rose Garden ceremony normally reserved for Supreme Court nominees and prominent cabinet members, Mr. Obama announced plans to nominate three people to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit.

The president called on Republicans to abandon what he called partisan obstruction of his judicial nominees and approve his nominees quickly.

“This is not about principled opposition. It’s about partisan obstruction,” Mr. Obama said. “What’s happening now is unprecedented. For the good of the American people it has to stop.”

“What I’m doing today is my job,” Mr. Obama said as he announced the nominations. “What I need is the Senate to do its job.”

By nominating the judges as a group, the president is trying to restore what his allies consider to be ideological balance on a crucial court that has overturned some important parts of his first-term agenda. And he hopes to heighten public anger at Republicans for repeatedly using the threat of filibuster to block his choices for the cabinet and the courts.

AP posts, "Obama nominates 3 to appeals court, testing GOP," by Nedra Pickler.

Issuing a forceful challenge to Senate Republicans, President Barack Obama nominated three judges to the influential federal appeals court in Washington, declaring that the GOP has "cynically used Senate rules and procedures" to delay and block past nominees.

"What I'm doing today is my job; I need the Senate to do its job," he said as he announced his nomination of Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins on Tuesday in the White House Rose Garden.

In simultaneously naming three nominees to the understaffed federal appeals court in Washington, Obama set up an aggressive push against Senate Republicans who are trying to keep him from naming any more judges to the influential circuit.

It's the first time Obama has ever held an event to announce nominees to the federal bench other than the Supreme Court, an indication of the pressure the president is trying to put on the Senate to approve his picks.

"There is no reason aside from politics for Republicans to block these individuals from getting an up or down vote," he said.

"Obama to name two female lawyers and an African American federal judge to U.S. appeals court in District of Columbia," is by Juliet Eilperin for the Washington Post.

President Obama will nominate two female lawyers and an African American federal judge Tuesday to serve on the U.S. Court of Appeals for the District of Columbia Circuit, part of an effort to help reshape the federal judiciary before he leaves office.

The president will nominate veteran appellate lawyer Patricia A. Millett; Georgetown University Law Center professor Cornelia ­T. L. Pillard; and Robert L. Wilkins, a judge on the U.S. District Court for the District of Columbia, according to a White House official who spoke on the condition of anonymity because the announcement had not been made.

It is unclear whether Senate Republicans will accept the idea of approving a trio of judges in quick succession to fill the three vacancies on the D.C. Circuit, one of the nation’s most influential courts. Late last month, the Senate confirmed Justice Department official Sri Srinivasan in a unanimous vote. Srinivasan’s appointment marked the first time since 2006 that the Senate has approved a presidential nominee to the D.C. Circuit.

The BLT - Blog of Legal Times - has more details on the nominees in, "Obama to Nominate Three Lawyers to D.C. Circuit," by Todd Ruger. Here's a brief excerpt; follow the link for more.

A White House official said the nominees are Patricia Millett of Akin, Gump Strauss Hauer & Feld; Cornelia "Nina" Pillard, a former Justice Department lawyer who is now a Georgetown University Law Center professor; and U.S. District Judge Robert Wilkins in Washington, a former Venable partner who was unanimously confirmed to the trial bench in 2010.

The announcement will be made at 10:15 a.m. in the White House's Rose Garden, the official said. Millett and Pillard have extensive experience before the U.S. Supreme Court, and work histories that are unlikely to be too controversial during the Capitol Hill nomination process.

Earlier coverage of federal judicial nominations and confirmations begins at the link.

There's much more on the topic at the Judicial Nominations and Judicial Selection Project websites.

RJA Update

"Racial Justice Act could meet its end this afternoon," is by Sarah Brown for the Daily Tar Heel.

Proven racial bias might no longer be enough to spare death-row inmates from the death penalty, if the N.C. House of Representatives votes to repeal a controversial state law this afternoon.

The Racial Justice Act — passed in 2009 with bipartisan support — permits convicted killers to use claims of racial discrimination to have their death-row sentences converted to life in prison without parole.

But many state legislators have said they believe the law creates more problems than it solves.

The Senate approved a bill in April that would repeal the act, and the same bill was voted favorably out of a House judiciary committee last week.

Jennifer Marsh, a UNC law professor, said the Racial Justice Act was the first of its kind in the United States to allow the use of county and state statistics as evidence that race was a significant factor in a judgment.

“It was amazingly groundbreaking, in its original form,” Marsh said.

A 2011 Michigan State University School of Law study — which looked at death row cases in North Carolina from 1990 to 2009 — found that defendants whose victims were white were more likely to receive the death penalty.

“This (law) was important in saying, we are going to look at our past and how the justice system works and make sure that it’s free of racial discrimination,” Marsh said.

N.C. Republicans voted last year to repeal the provision allowing statistics to be the sole indicator of racial bias.

Earlier coverage from North Carolina begins at the link.

What Was All the Fuss About?

That's the title of a Baltimore Sun editorial, subtitled, "Death penalty repeal and gun control measures fail to stir sufficient opposition from Maryland voters to put either on the ballot next year."

So what was all this about a voter referendum or two?

Opponents of a pair of controversial measures backed by Gov. Martin O'Malley and approved this year by the Maryland General Assembly — a repeal of the death penalty and landmark gun control legislation — claimed the local populace was outraged by both. So certain was this that many fully expected them to be brought to referendum and defeated by voters in 2014.

The petition drive to bring the death penalty repeal to referendum was even championed by Western Maryland Del. Neil Parrott who was instrumental in bringing three laws to referendum last year through use of a web site that made the signature-gathering process easier. With those kinds of resources, it should have been a snap to put the matter before Maryland's voters.

And:

In the six weeks since the legislature went home, opponents weren't able to muster enough interest in either issue to generate 18,500 signatures of registered voters — or about a summer weekend's worth of tourists at Fort McHenry or half an Orioles home game. Where was the outrage? Where was the voter anger? Where was this "silent majority" of people seeking to oust those who dared approve these laws?

Here's an idea. Most people weren't outraged because, as polls have indicated, most prefer life without parole to the death penalty, and changes to gun laws that make it more difficult for a Sandy Hook massacre to happen here and for criminals to buy guns through "straw purchases" are overwhelmingly popular. And perhaps those who opposed those measures did not hold such strong convictions that they thought signing a petition, let alone volunteering for a petition drive, was worthwhile.

There is also additional news coverage of the referendum petition failure.  Maryland Gazette.net posts, "Petition drives to overturn Md. death-penalty repeal and gun laws both fail," by Daniel Leaderman.

"Petition Drive To Halt Death Penalty Repeal In Maryland Fails," by Ian Millhiser for Think Progress.

"Petition drive to overturn Maryland gun-control law fails, official says," by John Wagner at the Washington Post.

Earlier coverage from Maryland begins at the link.

In the Wake of Trevino

"Supreme Court orders review of 6 Texas death row cases," is the AP report written by Michael Graczyk.  The article is also available via the Austin American-Statesman.  It comes in the wake of last week's Supreme Court ruling in Trevino v. Thaler.

The U.S. Supreme Court on Monday sent the cases of six Texas death row inmates, including one of the infamous "Texas 7" gang of escapees, back to a lower court for reviews of whether attorneys in earlier stages of appeals let the men down.

The decisions are in line with last week's ruling in another Texas case where the justices, in a 5-4 vote, said a condemned prisoner had deficient legal help early because appeals lawyers didn't raise challenges that his trial lawyers were ineffective.

The high court returned the cases to the 5th U.S. Circuit Court of Appeals for review. None of the six has a pending execution date, although some had come close to being put to death in the past before their punishment was delayed by the courts.

And:

Last week's precedent-setting case for Monday's decisions involved convicted killer Carlos Trevino, 38, a San Antonio street gang member condemned for the 1996 gang rape and fatal stabbing of a 15-year-old Linda Salinas.

Trevino's attorneys argued his trial lawyers were deficient for not investigating evidence of a horrific childhood that could have swayed the Bexar County jury to give him life in prison rather. Then, lawyers in the initial stages of his appeal were equally deficient for not raising the claim that the trial lawyers were ineffective, Trevino's lawyers argued to the U.S. Supreme Court.

The high court disagreed with state attorneys who contended Texas law provided ways to accommodate the challenges and that the appeal was without merit.

The Supreme Court's Order is available in Adobe .pdf format.

Earlier coverage of Trevino begins at the link.

Pennsylvania Roundup

Today's Allentown Morning Call publishes the OpEd, "Pennsylvania should abolish the death penalty.  It's by Karen N. Berry, Judith A. Dexter, Alwyn Eades, and Sarah Snider; Amnesty International members.

Are you in favor of the death penalty? Why? Many people say we need it because the death penalty deters crime, but that is not true. In 2012, the National Research Council evaluated statistical studies only to conclude "that the studies do not provide evidence for or against the proposition that the death penalty affects homicide rates."

So if it does not deter crime, if it doesn't make us safer, why do we have the death penalty and why are we asking now? We ask now because the Pennsylvania Senate has created a task force to study the death penalty and to recommend changes to our judicial system.

In March, Maryland's legislature voted out the death penalty, substituting life in prison without the possibility of parole. Gov. Martin O'Malley cited both costs and deterrence after the vote. "Capital punishment is expensive and the overwhelming evidence tells us that it does not work as a deterrent," he said. Thus Maryland joined 17 other states to abolish the death penalty, and its world did not collapse.

We believe that if citizens of Pennsylvania knew the facts about capital punishment — that it does not deter crime and that it costs more than keeping offenders in jail for the rest of their lives — they would join us in opposing the death penalty. They would no longer wish to be part of the list of countries that actively use the death penalty; China, Iran, Iraq, Saudi Arabia, North Korea are the only countries that use the death penalty at a rate comparable with the USA. Is our moral sense at the level of these countries?

Related posts are in the abolition and OpEd category index.

Also from Pennsylvania, there is a new federal death sentence.  "Jury: Death penalty for dealer," is the AP report, via the Cherry Hill Courier-Post.

A federal jury on Friday recommended the death penalty for a drug dealer convicted of murdering 12 people, including four children and two women who were relatives of an informant and were killed in a firebombing.

Kaboni Savage, 38, already was serving 30 years in prison for a drug trafficking conviction.

Jurors took less than two days to unanimously return 13 death sentences against Savage — one for each of the 12 murders and one for retaliating against witnesses.

Related posts are in the federal death penalty category index.