The StandDown Texas Project

The Death Penalty in Washington State

The Walla Walla Union-Bulletin's series continues with five major articles.  The first installment, an overview published on Sunday, was noted here.

"Dollars add up in capital trials," by Andy Porter, ran in Monday's Union-Bulletin.

Estimating the cost of a murder trial involving the death penalty versus one that does not is a tricky business. But several past studies indicate costs are significantly higher for capital cases.

Nineteen years after the state's current death penalty law was adopted, Washington state Supreme Court Justice Richard P. Guy examined the costs for 25 aggravated murder trials between 1997 and 1999, eight of which involved the death penalty.

Adjusted for inflation, the 17 non-capital trials would cost an average of $163,063 today while the eight capital trials would average $497,398 in 2009 dollars, a difference of about $334,000 each.

That difference was slightly more than costs cited in a 2004 study by Mark Larranaga and Donna Mustard of the Washington Death Penalty Assistance Center.

In that report, the authors said "under one review, an average death penalty trial from 2000 to 2003 costs $432,000, compared to $153,000 for a non-death penalty trial." Adjusted for inflation, this would be $487,572 for a capital trial today compared to $172,681 for a non-capital trial, a difference of about $315,000.

A third study, done in 2006 by the Washington state Bar Association, concluded "death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel."

In today's dollars, that would be $497,043 extra for a trial involving the death penalty with an added $49,704 to $74,000 for court costs. But the report did not provide an estimate for a non-capital trial, as did the previous two reports.But the authors of the 2006 Bar Association report note that any aggravated murder trial is likely to carry a high price tag whether it involves the death penalty or not.

"Run-up to date with executioner runs up tab, too," also by Porter, also ran Monday

Eight hours before Cal Coburn Brown was scheduled to die, the bill for his execution was more than $75,000 and climbing.

It was a warm late afternoon March 12, a Thursday, and preparations were well under way at the Washington State Penitentiary. Checkpoints were in place at parking lot entrances to search arriving vehicles, areas for pro and anti-death penalty protestors had been readied and remote broadcast trucks were setting up.

Then word came down that the state Supreme Court had granted Brown a stay, bringing things to a screeching halt.

The bulk of the thousands of dollars spent up to that point consisted of the wages and overtime for the Department of Corrections personnel and officers, travel expenses for DOC officials and more than $13,000 for "goods and services," which included extra fencing for protestor areas, portable toilets, expenses for bringing the victim's family to Washington state to witness the execution and other items, said Maria Peterson, DOC spokeswoman.

Peterson said the only way the final bill could be calculated would be if the execution had actually gone off.

For instance some expenses, such as travel expenses for herself and other DOC officials, had already been included in the money spent up to the point the execution was called off while other expenses, especially for wages and overtime, couldn't be calculated because of people going off the clock or back on the clock during the countdown. Any complications in the process would also have added significantly to the final bill.

"Death penalty divides local law enforcers," By Terry McConn was published Tuesday.

Top law enforcement officials in Walla Walla County express differing views when discussing the death penalty — just like most of the nation.

Walla Walla police Chief Chuck Fulton is opposed to capital punishment; College Place Chief Dennis Lepiane is a proponent.

And County Sheriff Mike Humphreys says a public vote on the issue may be in order.

Polls suggest that nationwide, about two-thirds of people support capital punishment, but are split down the middle when a sentence of life without parole is mentioned as an alternative.

And:

Humphreys said the death penalty is expensive, but the desires of victims’ families should weigh heavily into any consideration of abolishing the law.

“I think maybe it should go to a public vote. It’s costing us this much money. Let the people make that decision,” Humphreys said.

Fulton, however, would rather see the Legislature abolish the practice to avoid widespread emotional debate that would arise from an election.

He believes the death penalty just creates more victims. The four executions at the Washington State Penitentiary in past years have resulted in a “carnival atmosphere” that adversely affects penitentiary workers, law enforcement officers responsible for maintaining security and everyone else involved.

“That saddens me about our system,” Fulton said. “I feel sorry for all of those who have to deal with that.”

He added he has “absolutely zero remorse” for somebody who commits murder. “But for the whole of society, I don’t know if the death penalty is truly the answer.”

Also:

A survey this year of leading criminologists ranks expanding the death penalty as dead last in reducing violent crime. No. 1? Reducing drug abuse, which makes sense to the local officials.

Humphreys believes 70 to 80 percent of all crimes are related to the use of illicit drugs or alcohol.

“If we’re going to reduce the drug abuse, we’re going to reduce all crimes,” he said.

“From thefts to murder.”

"Capital punishment has long history in world, state," ran Wednesday.

Government-sponsored killings date back to hundreds of years before Christ was born.

The Death Penalty Information Center Web site says capital punishment was codified in Babylon in the 18th century B.C. for 25 different crimes. Similar laws were enacted in subsequent centuries in Athens, Rome and Britain.

"Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive and impalement," according to the Web site.

Laws established by European settlers to the new world were mostly influenced by Britain, which by then employed various means to execute perpetrators of any of more than 200 crimes.

And:

The Washington state Legislature addressed constitutional flaws in this state's law that year (1977) by removing the "mandatory" provision and adding a special sentencing procedure for imposing a death sentence.

According to a Washington State Bar Association report: "Under this statute, the sentencing jury was asked to determine whether guilt was established by 'clear certainty'; whether aggravating mitigating factors existed; and whether the defendant would commit additional violent acts in the future." Absent any of those findings, the punishment was life in prison without the possibility of parole.

But that law, too, was found lacking -- this time by the Washington state Supreme Court. Justices in early 1981 declared it unconstitutional because it allowed defendants who pleaded guilty to escape the death penalty. The court said that practice "chilled" a defendant's right to trial and created an inequitable sentencing scheme.

The present law was enacted by the Legislature on May 14, 1981.

Hanging remained the primary form of execution until 1996 when the Legislature switched to lethal injection as the default method. Condemned prisoners may choose hanging if they desire.

Washington state has executed 109 people since 1849, according to a database known as the Espy File.

Seventy-seven men (no women) have been put to death at the state Penitentiary since 1904.

Four of the executions have been carried out since the 1981 statute was enacted -- all since 1993.

All but the last two at the prison have been hangings.

"Death penalty a rarity in Washington," is in the current edition of the Union Bulletin.

The death penalty is seldom imposed in Washington state.

Since 1981, more than 7,000 homicide cases have been filed. Only 30 death sentences have been handed down.

That's partially because Washington's death penalty law is narrowly structured. But add to that an appellate court system that historically has been reluctant to allow an execution to take place and it becomes clear why the death chamber at the Washington State Penitentiary has been allowed to gather dust.

A breakdown of the 30 cases is as follows:

Four men have been executed.

Eight are on death row.

And 18 (of the 22 convictions or sentences that have completed review) have been reversed by either the state Supreme Court or federal Ninth Circuit Court of Appeals based in San Francisco. That 81 percent reversal rate is about double the national figure of 43 percent, calculated from 1977 through 2004.

A 2004 report by the Washington Death Penalty Assistance Center says the reversals "have been attributed to all aspects of the criminal justice system," including constitutionally prohibited errors, judicial errors, prosecutorial and jury misconduct, and ineffective defense counsel.

That partly can be explained by the complicated nature of capital punishment laws in Washington and throughout the country.

The American Bar Association has noted that "death penalty litigation is extraordinarily complex, both for the courts and for the attorneys involved," according to the Assistance Center report. "Not only do the cases incorporate the evidentiary and procedural issues that are associated with virtually every non-capital case, but they also involve a host of issues that are unique to capital cases."

Memo to Kay

That's the title of Michael Hall's web extra column for Texas Monthly.  It's subtitled, "Even someone who supports the death penalty, as you do, can and should be up in arms over the Cameron Willingham case."

Hey Senator Hutchison, would your campaign have any interest in painting your opponent, Governor Rick Perry, as a corrupt, cold-hearted political hack who will do anything to cover his ass when he looks like he did something really bad? I figured you might, so I drafted this memorandum to help you express your outrage at Perry’s latest actions. You know, how he fired three members of the Texas Forensic Science Commission on the eve of a meeting at which the commission would have heard an expert say, in so many words, that Texas, under the governor’s watch, had executed an innocent man. Even someone who supports the death penalty, as you do, can and should be up in arms over this. Here’s how.

First, just to recap: Cameron Todd Willingham was accused of setting a fire in Corsicana in 1991 that killed his three children. He was convicted on the testimony of two arson experts who said they found evidence the fire had been intentionally set. Willingham protested his innocence for years and finally found an ally in January 2004, when Gerald Hurst, an Austin fire investigator, analyzed the original arson report. Hurst was alarmed at the lack of hard science and scientific reasoning; his conclusion was that there had been no arson. The fire had been an accident. Hurst wrote up a report and faxed it to the Board of Pardons and Paroles, which unanimously turned Willingham down. Governor Perry did too, denying a stay of execution. On February 17, 2004, Willingham was executed.

Later that year the Chicago Tribune asked three other fire experts—John Lentini, John DeHaan, and Kendall Ryland—to analyze the evidence. They agreed with Hurst that there had been no arson. In 2006 the Innocence Project hired Lentini and three additional experts—Douglas Carpenter, Daniel Churchward, and David Smith—to look at the case. They concluded that “the evidence used to convict [Willingham] was invalid.” Willingham’s conviction and execution were, the report concluded, “a serious miscarriage of justice.”

And:

He got his Ph.D. in Engineering at Harvard, his M.S. in Mechanical Engineering at Cornell, his M.Sc. in Fire Safety Engineering from the University of Edinburgh, and his B.S. in Fire Protection Engineering from the University of Maryland. Since 1990 he has been the technical director at Hughes Associates, a world-renowned Baltimore engineering company that specializes in fires—how they get started, how they spread, how they react to different materials, how to fight them, how to protect against them. He’s the chair of the International Association for Fire Safety Science. He’s a member of the Society of Fire Protection Engineers Technical Steering Committee and the National Fire Protection Association’s Toxicity Technical Advisory Committee. He’s taught graduate courses in Combustion, Fire Dynamics, and Fire Chemistry. He’s won awards from the Institution of Fire Engineers, and the Society of Fire Protection Engineers. I would say that’s pretty impressive.

What about the other seven “latter-day supposed experts”? Glad you asked. Here’s where you could really drive the point home. Hurst got his Ph.D. in chemistry from Cambridge and has been investigating fires since 1994; Carpenter has been a fire-protection engineer and investigator since 1996; Churchward is a fire investigator who has worked as a deputy, firefighter, and insurance-company investigator since 1972; Lentini has been a certified fire investigator and chemist since 1978; Smith, a former detective, has been a certified fire investigator since 1971; DeHaan, Ph.D., has been an arson criminologist since 1987 and an independent forensic consultant since 1998; and Ryland is a Louisiana fire chief and former college professor.

Concluding:

Let’s review: The governor appointed a previous political appointee of his to head a commission that was looking into whether the governor himself had overseen the execution of an innocent man, and the appointee canceled a meeting where it was to hear testimony from an expert who would have said that, yes, the executed man had committed no crime. Again, you don’t have to be against the death penalty to think that something is terribly wrong here. Unless you’re Rick Perry. Which you’re not. Right?

Earlier coverage begins with the preceding post.  As I've pointed out before, Texas Monthly writer Michael Hall and I are not related.

More News From the Aftermath of the Senate Hearing

Elise Hu's Texas Tribune coverage of the Senate Criminal Justice Committee, noted in this post,  picked up differences between former Forensic Science Commission Chair Sam Bassett and the new Chair, John Bradley.  Those differences have increased dramatically since the hearing.

"Forensics panel overhaul may delay arson inquiry for years, ex-official says," is the title of Robert Garrett's report in today's Dallas Morning News.

The pending overhaul of a state forensic science panel could delay by two years or more its review of the arson investigation that led to the 2004 execution of Cameron Todd Willingham, the panel's former head said Wednesday.

Sam Bassett, an Austin criminal defense lawyer, said Gov. Rick Perry's newly appointed chairman of the Texas Forensic Science Commission wants to spend too much time rewriting rules and standards for the fledgling panel.

"The commission doesn't need to evolve into a large, bureaucratic state agency to carry out its mission," Bradley warned in an e-mail to reporters.

He said a complaint about junk science used in the Willingham case, filed with the commission three years ago, could drag into 2011 "or beyond."

Williamson County District Attorney John Bradley, tapped by Perry to replace Bassett on Sept. 30, said Bassett wants to deflect attention from his own shortcomings.

"Bassett utterly failed to adopt even a definition of negligence or misconduct to be applied to investigations of forensic science," Bradley wrote in an e-mail to The Dallas Morning News. "In the scientific world, that amounts to incompetence."

Bassett responded that he won't engage in "dialogue which is personally attacking," and that he and fellow members of the commission "did the best job we could under the circumstances."

For the Morning News Trail Blazers blog, Garrett posted, "Barbs fly over Rick Perry's foray into forensics," yesterday afternoon.  It's a must-read.  Here's an excerpt:

Elbows are flying in the aftermath of yesterday's legislative hearing on Gov. Rick Perry's shakeup of the Texas Forensic Science Commission.

This morning, former commission chairman Sam Bassett, an Austin criminal defense lawyer, sent reporters an email warning that new chairman John Bradley's desire for comprehensive written rules and standards for the fledgling panel could unduly delay a pending review of science used to send convicted arsonist Cameron Todd Willingham to his death in Huntsville in 2004. A complaint by the Innocence Project, a New York-based group, has been before the panel since 2006 and Bradley's rule-making could stretch the review into 2011 "or beyond," Bassett wrote.

That'd be "far from timely," he said. A 2005 law creating the commission ordered it to be just that, he notes. (See jump for Bassett's statement.)

Bradley (above, AP photo) sent me an email in response. (It's also reprinted on the jump). He says Bassett's changing his story about the commission's readiness to conduct a hearing on the Willingham case -- an event squelched by Perry's late September replacement of Bassett with Bradley.

And:

State Democratic Chairman Boyd Richie and Democratic gubernatorial candidate Hank Gilbert also leapt into the fray yesterday. Richie said "Perry's politically motivated cancellation of an essential review" puts everyone charged with a crime at risk of being a victim of junk science. Gilbert trained fire on Bradley's remarks this week that he'd like to see some of the commission's preliminary communications and discussions of cases exempted from public meetings and records laws.

Gilbert said it fits a concerted effort by Perry to "promote secrecy in every corner of Texas government."

I'm seeking a response from Perry's office.

Dave Montgomery writes, "Current and former Texas forensic commission chairmen squabble," for the Fort Worth Star-Telegram.

The chairman of the Texas Forensic Science Commission and his predecessor engaged in testy claims and counterclaims Wednesday, a day after the panel’s current leader appeared before a Senate committee to outline his priorities for the revamped commission.

In e-mails to the media, former Chairman Sam Bassett and current Chairman John Bradley quarreled over Bradley’s assertions that the commission will have to adopt new rules before proceeding with pending cases, including a now-stalled inquiry into an arson investigation that led to the 2004 execution of Cameron Todd Willingham.

"What may have been lost in the discussion of 'rules and procedures’ is that the statute creating the Commission requires investigation of complaints to occur 'in a timely manner,’ " Bassett, an Austin defense attorney, said in a news release that opened the exchange.

"Two of the complaints the Commission unanimously voted to investigate were filed in 2006. The idea that the Commission will likely conclude these investigations in 2011 or beyond is far from timely. Texas deserves better," he said.

Asked to respond to Bassett’s assertion that the Willingham inquiry could extend into 2011 and possibly beyond, Bradley told the Star-Telegram by e-mail: "I don’t comment on pending cases. I would note that he had the case for two years. I’ve had it for a month. Do the math."

The Williamson County district attorney also charged that Bassett "utterly failed to adopt even a definition of negligence or misconduct to be applied to investigations of forensic science. In the scientific world, that amounts to incompetence."

The Willingham inquiry stalled after Gov. Rick Perry replaced four commission members, including Bassett.

Bradley, named as Bassett’s successor, told the state Senate Criminal Justice Committee on Tuesday that he plans to resume the Willingham inquiry but declined to give a timetable. The commission’s next meeting is January.

Bassett said he disagreed with Bradley’s contention that rules and procedures are needed before the commission can move forward. "Though the Commission might benefit in the long term from development of written standards, I do not believe that this should result in paralysis of Commission activity," he wrote. "The Commission doesn’t need to evolve into a large, bureaucratic State agency to carry out its mission."

Syndicated political columnist Dave McNeely's column today is, "'Junk Science' on Trial Before Senate Committee."

With almost as much tension and drama as a death penalty court case, plus some politics, the Texas Senate's Criminal Justice Committee on Tuesday ((11/10)) grilled the new chairman of a state commission on forensic science.

John Bradley, the Williamson County District Attorney that Gov. Rick Perry named Sept. 30 to chair the commission, is normally accustomed to being the prosecutor, and asking the questions.
  
But in this hearing, with several death penalty opponents and more than a dozen television and other journalists in the audience, Republican Bradley was on defense more than offense.

The governor had put Bradley in a position where he felt called upon to defend what many Democrats, including state party chairman Boyd Richie, charge was to stall a hearing on a reportedly mistaken death penalty until after the March 2 Republican gubernatorial primary.

And:

Sen. Rodney Ellis, D-Houston, who chairs the New York-based Innocence Project, asked whether politics came into play in Bradley's appointment because "something would come out to embarrass someone."

"It's not my job" to defend any person or party, Bradley said. "I don't see myself as someone's pawn."

Bradley repeatedly refused, to the committee and to reporters later, to say when a decision might come in the Willingham case.

"I'll give you the answer when the commission makes its decision," he told the committee.

Ellis has heard from several people "who think it's a delaying tactic," he told Bradley. "How long will this take?"

Bradley told Ellis that "when you hold your press conference" with Innocence Project director Barry Scheck, to remember that, as a prosecutor, he lets more people off every year than "Senator Ellis's New York non-profit."

"I'm for the death penalty," Ellis shot back, noting he'd signed off on three executions as acting governor while Senate president pro-tem. "I prefer we get the right person."

"Sometimes, mistakes are made, and that's why this commission was created," Ellis said. He doesn't want Texas seen nationally as using "junk science to get convictions," he added.

Perry was within his powers in the abrupt replacement of commission members, Ellis said, and it's not Bradley's fault, but there is "no question that a cloud has been put over this commission."

Earlier coverage begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Justice Alito and the ABA Guidelines

National Law Journal reports, "A Justice's Curious Comment About ABA Guidelines for Death Penalty Lawyers."  It's written by Marcia Coyle.

The Supreme Court this week, in an unsigned opinion, reversed relief granted by the 6th U.S. Circuit Court of Appeals to a death row inmate because of his lawyer's ineffective assistance. But Justice Samuel Alito wrote separately -- and curiously -- to emphasize his view that no "special relevance" should be given to the American Bar Association's guidelines on the appointment and performance of defense counsel in death penalty cases.

In Bobby v. Van Hook, the justices found that, among the 6th Circuit panel's errors, was its reliance on ABA guidelines announced 18 years after Robert Van Hook went to trial.

The per curiam opinion said the Sixth Amendment entitled defendants to representation that does not fall below an "objective standard of reasonableness." Restatements of professional standards, the Court added, can be useful guides as to what reasonableness entails, "but only to the extent they describe the professional norms prevailing when the representation took place."

The Court said the 6th Circuit made "matters worse," by treating the 2003 guidelines not merely as evidence of what reasonably diligent attorneys would do, "but as inexorable commands with which all capital defense counsel 'must fully comply.'"

In a concurring opinion, Justice Alito said that the ABA is a "venerable" organization with a history of service to the bar, "but it is, after all, a private group with limited membership." Its views, he added, do not necessarily reflect the views of the bar as a whole.

Courts must decide whether a defense lawyer's work meets the constitutional standard, he said, adding, "I see no reason why the ABA Guidelines should be given a privileged position in making that determination."

And:

The ABA's 2003 guidelines have been cited widely in decisions by state and federal courts, including the Supreme Court, most recently in Rompilla v. Beard, a 2005 decision finding ineffective assistance of counsel in a death case.

"The law has always been that the ABA guidelines are only guides to putting content on the very vague Strickland standard," said Eric Freedman of Hofstra University School of Law, a member of the steering committee of the ABA's Death Penalty Representation Project. The original guidelines were approved in 1989 and revised and adopted without dissent in 2003.

Freedman said that if the entire court had endorsed Alito's comments, the justice would not have had to write separately; the comments would have been in the opinion.

"No one is suggesting the ABA has some special role," said Freedman, adding the guidelines are an "honest effort" to state what a reasonable attorney would do in these cases.

"The ultimate point is courts are to decide the [ineffective assistance] issue," he said. "If a judge is asked what was the standard of care in 1990, he or she has to find it somewhere. It certainly seems a sensible viewpoint, which the per curiam opinion doesn't contest, that in seeking illumination, the carefully written ABA standards are one good place to look."

The revised edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases provides an outline for minimally sufficient representation in capital cases.  The ABA Guidelines also form the basis for the State Bar of Texas' Guidelines and Standard for Texas Capital Counsel, adopted in 2006.

Minnesota Lawyers Protect Rights of Those on Death Row

That's the title of Sam Barr's Behind the Bar column at MinnPost. LINK  Here's an extended excerpt from the beginning of the article.

About 3,300 people are on death row right now. Few are represented by competent lawyers at public expense, despite the need to be sure — certain, if possible — that only the guilty will be executed. Most death row inmates desperately need a lawyer.

At its annual awards ceremony a week ago, the Minnesota Justice Foundation highlighted the injustice that pervades the death penalty in the United States and recognized the Minnesota lawyers and law firms that donate time and money in the pursuit of justice for those on death row.

According to U.S. Magistrate Judge Jeffrey Keyes, "the criminal justice system, by and large, is infected with error. In a death penalty case, all of those inherent flaws are multiplied."

So it would seem: at least 17 people have been exonerated by DNA evidence after they were sentenced to die for crimes they did not commit. Minneapolis law firm Maslon Edelman Borman & Brand, LLP, may be representing the next one.

Douglas Armstrong was convicted of murder in south Texas. He claims he came on a man lying in a pool of blood, and tried to drag him to help. His story has never changed. Someone saw him, and he gave it up, only to be arrested shortly afterward. His trial counsel gave a half-hearted effort, and Armstrong was convicted. He was sentenced to death because the police claimed they found the victim's Medicaid card on Armstrong, and called that an aggravating factor. Maslon won the right to test the DNA evidence, which could refute the state's evidence and exonerate Armstrong.

But DNA evidence is not available in all cases.

Further, according to University of Minnesota law professor Carl Warren, the criminal justice system targets, convicts and executes minorities far more than whites. Warren points to research suggesting that the death penalty is a legal replacement for lynchings in some southern states. Panelists at MJF's seminar on death penalty litigation noted the frequency with which prosecutors pack the jury of a black defendant with white jurors.

Numerous other errors come up again and again in death penalty cases, from prosecutorial misconduct to incompetent defense counsel and more.

The only way to correct errors is on appeal, but there is little assistance available to those sentenced to die. During its 1995-96 term, Congress eliminated funding for resource centers that provided post-conviction representation. The same year, it shortened the time convicts had to file an appeal. Only a handful of states provide any assistance after conviction. Since 99.5 percent of those on death row are impoverished and cannot afford a lawyer, most errors go uncorrected.

Worse, some of those sitting on death row probably should not be there. Until 2002, the mentally retarded could be executed. But proving mental retardation takes a competent lawyer and expensive experts. Robin Maher, director of the American Bar Association's Death Penalty Representation Project, believes many of those on death row will be executed even though they are mentally retarded

Maher says she is angry. "I know how much there is to be angry about." Like a defense lawyer who told the jury his client's life was not worth saving. Or other defense counsel who were drunk or high during their clients' trials. Or U.S. Supreme Court Justice Antonin Scalia, who said the innocent may be executed as long as the proprieties are observed. (Scalia also says he does not believe anyone who is innocent has ever been executed.) Or judges in Alabama who often overrule juries when the juries decline to sentence the convicted defendant to death. Or the fact that until 2005, children could be sentenced to death.

Those on death row are in desperate need of lawyers to ensure that justice — whatever that may mean in a particular case — is done.

Recognition for a Leader in Adolescent Developmental Studies

If I had a Good Timing category, this would be filed there.  Temple University has issued a news release, "Psychology professor honored for exceptional scientific achievement impacting the lives of young people."  Dr. Laurence Steinberg acted as scientific consultant on the amicus curiae brief submitted by the American Psychological Association in Sullivan v. Florida and Graham v. Florida.

Laurence Steinberg, Distinguished University Professor and Laura H. Carnell Professor of Psychology at Temple University, has been named the recipient of the inaugural Klaus J. Jacobs Research Prize in the field of youth development. The prize was announced today by the Jacobs Foundation, one of the largest foundations in Europe.

Presented to individuals in recognition of outstanding scientific accomplishments that represent groundbreaking contributions to improving the lives of young people, the Jacobs prize carries an award of one million Swiss francs, the equivalent of one million U.S. dollars.

“I am honored to have the work my colleagues and I have done recognized,” said Steinberg, a member of Temple’s psychology faculty since 1988. “But I’m also proud that our field is receiving this recognition. The Jacobs prize draws attention to the fact that the scientific study of adolescent development is an important enterprise.”

And:

An internationally recognized expert on psychological development during adolescence, Steinberg is a former President both of the Society for Research on Adolescence and the Division of Developmental Psychology of the American Psychological Association. 

He is a frequent consultant to state and federal agencies and lawmakers on juvenile justice issues and public policy.

The U.S. Supreme Court’s 2005 ruling in Roper v. Simmons, abolishing the juvenile death penalty, relied significantly on the argument advanced by Steinberg and his colleagues that adolescents are fundamentally different from adults in ways shown by scientific studies of brain and behavioral development.

Steinberg also served as scientific consultant on the amicus curiae brief submitted by the American Psychological Association in Sullivan v. Florida and Graham v. Florida. These landmark juvenile justice cases, argued before the U.S. Supreme Court on Nov. 9, raise questions about the constitutionality of sentencing juveniles to life imprisonment without the possibility of parole. 

“In many respects adolescents are just as smart as adults. But it is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking,” said Steinberg.

Compared to adults, adolescents are more susceptible to peer influence, less oriented to the future, more sensitive to short-term rewards, and more impulsive."

Steinberg’s research findings have not only transformed legal policy and practice, they have also changed the way society thinks about teenagers. In addition to his current work on teen decision making, risk taking and crime, Steinberg has been a leader in the study of parent-adolescent relationships, school achievement, and the employment of teenagers in after-school jobs. He currently chairs the National Academies’ Committee on the Science of Adolescence.

Steinberg is the author or co-author of 11 books, including Adolescence, the leading college textbook on adolescent development, now in its eighth edition; You and Your Adolescent: A Parent's Guide for Ages 10 to 20; Beyond the Classroom: Why School Reform Has Failed and What Parents Need to Do, which The New York Times cited as one of the decade’s most important books on education; The Ten Basic Principles of Good Parenting, which has been translated into ten languages; and Rethinking Juvenile Justice.

Related posts are in the juvenile and scholarship category indexes.

More Commentary on the Juvenile Sentencing Cases

"Ugly Truth: Most U.S. Kids Sentenced to Die In Prison Are Black," is the title of Liliana Segura's post at AlterNet.

Monday's oral arguments covered a lot of ground, including whether life-without-parole is comparable to the death penalty (which has been banned for juveniles); whether the purpose, ultimately, is about deterrence or retribution -- "What is the State's interest in keeping ... the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger?" --  whether, for sentencing purposes, there's any practical difference between a 13-year-old or a 10-year-old -- or, for that matter, an 18-year-old and a 17-and-11-month-old ("the line has to be drawn somewhere.") At points, it got downright philosophical ("Why does a juvenile have a constitutional right to hope, but an adult does not?" asked Justice Kennedy.) But at the center of the argument was the question of whether children -- and their potential for rehabilitation -- should be judged by the same standards as that of grown-ups. "To not recognize the difference between a child and an adult is cruel and unusual," defense attorney Bryan Stevenson told Justice Antonin Scalia.

Conspicuously absent from the oral arguments, however, was any discussion of race. The one time Stevenson attempted to mention it, as one of the "arbitrary features" of the distribution of life-without-parole sentences -- these prisoners are "disproportionately kids of color," Stevenson said -- he was interrupted by Justice Alito, who questioned the reliability of his statistics. ("What is your response to the State's argument that these statistics are not peer-reviewed?" he asked.)

It can be tricky to pin down exact numbers when it comes to specific prison populations from state to state, particularly given the differences between sentencing statutes across the country. And states have not traditionally kept track of how many juveniles are in their adult prisons. But when it comes to juvenile lifers, there are some figures that have been widely accepted (and not contested by the state of Florida.)

"There are 73 children 14 and younger who have been imprisoned for life without parole," Stevenson told the Court. "...For the age of 13 and younger, there are only nine kids, and that's including both kids convicted of homicide and non-homicide. For non-homicide, there are only two. They are both in Florida and Joe Sullivan is one of them."

What he did not get to say is that of the vast majority of kids who are sentenced to die in prison are black.

This is unfortunate. Racism has been central to the policies that led to the rise in life sentences for juveniles in the first place -- and not just in Florida. The Supreme Court may rely on legal precedents to make their decisions -- but that does not mean it necessarily considers history.

At TownHall.com, Ken Klukowski posts, "Court Should Uphold Life Without Parole for Minors."

The two current cases are the predictable result of the 2005 decision Roper v. Simmons. In Roper, a 5–4 divided Court held that applying the death penalty is unconstitutional if the perpetrator was under 18 when he committed the crime. That case involved a home robbery where the woman victim saw the 17 year-old robber’s face. Realizing he had been seen, he kidnapped the woman, bound her with duct tape, and threw her off a bridge to drown in a river. A Missouri court sentenced the murderer to death, but the Supreme Court struck down that penalty.

The most troubling aspect of Roper, however, was its reliance on foreign law to interpret the meaning of the U.S. Constitution. It cited the U.N. Convention on the Rights of the Child, a treaty that the United States has never ratified. Citing that treaty and the laws in other nations, the Court (in an opinion by Justice Anthony Kennedy) reasoned that these foreign sources helped define what is “cruel and unusual” means in our Constitution.

Some are pushing for the Court to consider foreign law again in deciding the current cases.

The second of these Nov. 9 cases, Sullivan, may not be decided on the merits. There is a strong argument that under Florida law the time for making this claim ran out years ago. If so, then there’s no jurisdiction to hear the case, and it could just be dismissed.

But there’s no such obstacle in the Graham case, so the Court is going to have to decide the question of whether the sentence is unconstitutional.

Graham’s argument is summed up in his lawyer’s opening statement, that sentencing life without parole is essentially a death sentence and, “cruelly ignores the inherent qualities of youth and the differences between adolescents and adults.”

Ben Smith posts, "Life in prison at 13," at the Indiana Daily Student.

The United States is, in fact, the only nation in the world that still allows children to be sentenced to life in prison without any hope for parole.

These are, perhaps, the most extreme illustrations of the American criminal justice program’s harsh treatment of juveniles. The crimes in question were violent, and to a certain degree, they deserve a harsh penalty. But even when it comes to more inconsequential crimes, the justice system can be proportionately irrational.

When I was in high school, for example, a friend of mine was arrested for stealing a pack of Mountain Dew off the back of a delivery truck. He spent multiple nights in jail awaiting his court date, despite the fact that his theft amounted to less than $10 in value.

We’ve all heard the warning: Keep your life straight, or else you’ll find yourself trapped within the confines of the “system,” which is relentless and unforgiving. But when the justice system perpetuates criminal behavior with- out working actively to reform or rehabilitate individuals – and in particular, juveniles – it is entirely dysfunctional.

If the Supreme Court rules that sentencing juveniles to life without parole is unconstitutional, then America’s penal system will be made more effective and more humane. But I think we are a far cry from having a program that maintains law and order appropriately.

If our criminal justice system operated more out of motives of compassion and support, which is often what juvenile offenders need, rather than uncompromising punishment, then maybe our justice system would be successful in its endeavors to reform.

Earlier coverage begins with the preceding post.

Editorials on the Juvenile Sentencing Cases

"Cruel and unusual," is the title of the editorial in today's Houston Chronicle.

On Monday, the Supreme Court heard petitioners argue that sentencing people to life in prison without any possibility of parole for crimes they committed as juveniles, where no homicide was committed, violates the Eighth Amendment's ban on cruel and unusual punishment.

There should be little argument over whether the punishment is unusual: The United States is the only country in the world to impose such a draconian sentence on children, with 109 people serving life without parole for non-homicide juvenile offenses. Even here, it is rare to non-existent in all states but Florida, which accounts for 77 of that total, according to a recent Florida State University study.

Seven other states account for 32 of the 109, while 39 states have none, including Texas, which — as of September, 2009 — does not permit life without parole sentences for offenders under 17. (Statistics for three states were not available.)

And:

Four years ago, the Supreme Court faced a similar situation in Roper v. Simmons, when it decided 5-4 that executing a child for crimes committed as a juvenile is a violation of the Eighth Amendment. The same arguments used in that case are equally valid when applied to locking a child up for life — a long-term death sentence.

In the Roper case, Justice Anthony Kennedy, arguing for the majority, called the death penalty “a disproportionate punishment for juveniles,” citing three major areas of differences between them and adults: first, juveniles' lack of maturity and undeveloped sense of responsibility; second, their vulnerability to “negative influences and outside pressures, including peer pressures”; and third, a character not as well formed as an adult's, with personality traits that are “more transitory, less fixed.” To a large extent, noted Stevens, our laws also reflect these differences, barring juveniles from serving on juries, voting or marrying without parental consent.

Professor Ellen Marrus of the University of Houston Law Center told the Chronicle that the juvenile justice system was never intended to treat children as miniature adults: “We have to look beyond the offense and look at children as children,” she said. “We should not be putting them into a system that is going to make them worse instead of helping them.”

Most juveniles grow up to become responsible adults, many of them surviving serious youthful mistakes and terrible choices. To abandon all hope of ever redeeming a young life before that life is fully formed should never be a choice in a civilized society.

Today's Miami Herald editorial is, "Reconsider plight of juvenile 'lifers'."

It is no coincidence that the cases before the court came from Florida, because this state leads the nation in the number of criminals serving life sentences for crimes they committed while juveniles in which no one was killed. Out of 106 such prisoners, 77 are in Florida. This is not something to be proud of.

Instead, argued the attorneys who want the court to ban such sentences, it is something to be ashamed of. The lopsided numbers indicate widespread repudiation of such sentences elsewhere.

Further, they argued, the immature and ``transient'' nature of adolescence makes it impossible to determine at such an early age who should be deemed unredeemably incorrigible and thrown into a jail cell forever.

In support of this view, former U.S. Sen. Alan Simpson of Wyoming filed a brief saying teen criminals deserve a chance of freedom. He was involved in arson and other serious crimes as a teen before making a better life for himself. He may be an exception, but his life would have been wasted in prison without the opportunity provided by parole.

The answer may be to allow for some sort of mandatory parole hearing at a later stage in life. Even Charles Manson, the iconic incarnation of evil, gets a chance to plead his case occasionally, although he's been denied 11 times by the parole board in California.

A parole hearing is not a get-out-of-jail card, but rather an opportunity to show that the prisoner has been rehabilitated. Horrible crimes deserve serious time -- but adolescents deserve a second chance at life beyond prison walls.

Earlier coverage begins with this post, with links to the transcripts and briefing.  Senator Alan Simpson's must-read OpEd is noted here.

New Clues for Forensic Panel Future

That's the title of Rick Casey's column in today's Houston Chronicle.  LINK

Gov. Rick Perry made a brilliant choice in John Bradley to head the Texas Forensic Science Commission — at least for his own purposes.

But after a two-hour hearing Tuesday before Sen. John Whitmire's Criminal Justice Committee in which legislators grilled the Williamson County district attorney on his plans regarding the commission, it's far from clear that the governor's choice will serve the justice system.

Perry abruptly replaced the previous chairman with Bradley two days before a nationally prominent arson expert was to present to the commission a report that was harshly critical of the methodology through which local fire and police officials found that Cameron Todd Willingham had deliberately murdered his own children by setting his house on fire.

Perry had good cause to be concerned, since he had been sent a similar report by an established expert in the days before Willingham's execution but denied a request to delay the execution so the matter could be further explored.

The expert's report expressed no opinion about Willingham's guilt or innocence, or even about whether arson had taken place. It just said that the investigators had used bad and/or outdated understandings of fire science to reach their conclusions. What's more, the report was only one part of the evidence the commission was set to consider.

But advocacy groups, many in the media and politicians on both sides characterized the report as a judgment on Willingham's innocence, and it wasn't hard to foresee problems for Perry as the commission pursued its work on the case over the next few months.

Bradley, a highly regarded prosecutor, offered a stout defense for delaying indefinitely — certainly until at least after the March primary — the commission's Willingham investigation.

And:

Bradley said he has successfully sought help from a highly regarded Texas Supreme Court staffer for help in setting up the rules, and from the Texas Rangers for help in setting up investigative procedures.

It's safe to say they won't be ready before the March primary.

Bradley's testimony raised other concerns.

It may be natural for a prosecutor to turn to the Texas Rangers to help develop investigative procedures for the commission. But the job of the commission is to investigate science, not crime. The investigative procedures for that should be developed by forensic scientists, not members of a police agency that will be subject to the commission's review.

Or will it? Of even more concern is Bradley's assertion, at least twice, that the focus of the commission should be on accredited police labs. The labs are important, and a scandal in the Houston Police Lab led to the commission's establishment.

But the law recognizes that labs are only one part of forensic science. It also calls for the commission to investigate complaints about any accredited “facility or entity.” That includes arson investigators, police detectives and others.

Earlier coverage begins with the preceding post.

News Coverage of the Senate Criminal Justice Committee Hearing

You can watch streaming video of yesterday's Texas Senate Criminal Justice hearing on the Forensic Science Commission here.  Following the hearing, Senator Rodney Ellis held a news conference with Innocence Project Co-Director Barry Scheck.  It's also available in streaming video, here.

Mike Ward writes, "Forensic panel's inquiry stalls under new chairman ," for today's Austin American-Statesman.

The new chairman of a state panel that sparked a political storm by raising questions about the legitimacy of an arson probe that led to the 2004 execution of a Corsicana man told state legislators Tuesday that the agency must develop new rules before it can proceed with the inquiry.

That could means months of additional delay, a prospect that drew new criticism of whether the agency is dragging its feet to politically benefit Gov. Rick Perry, who is seeking re-election next year.

Forensic Science Commission Chairman John Bradley insisted that is not the case. He said he is intent on keeping politics from interfering with the panel's investigation into whether flawed science played a role in the case of Cameron Todd Willingham, among others.

Willingham was convicted of setting fire to his home a few days before Christmas 1991 in a blaze that killed his three children. He was executed in 2004. Since a fire expert hired by the commission last summer questioned the science used to convict Willingham, the case has raised questions about whether Texas executed an innocent man.

In October, as the commission was poised to hold a public hearing on the controversial report, Perry abruptly replaced the chairman and two other members — all whose terms had expired.

Tuesday's Senate Criminal Justice Committee hearing had been expected to bring fireworks on the politically charged issue.

Instead, it was much lower key, at times almost mellow, despite some frank exchanges over how quickly the commission should act and whether it should be allowed to work in secret sometimes.

Bradley, who is also the Williamson County district attorney, said the commission currently has no rules and must first develop some to know how to handle the complaint about the Willingham case and the two other complaints that are pending before it.

He said he plans to convene a meeting of the commission in January to discuss developing rules. He declined to speculate on how long the rule-making process will take.

Jay Root of AP filed, "Revamped Texas panel to review Willingham case," via the Dallas Morning News.

Williamson County District Attorney John Bradley, appointed chairman of the Texas Forensic Science Commission last month, told a group of lawmakers that the panel needed new rules and procedures.

Speaking with reporters after the legislative hearing, Bradley said he planned to call a meeting of the forensic panel in January. Given the initial focus on the commission's rules and procedures, it was unclear when the Willingham case would be revisited.

And:

Sen. Rodney Ellis, D-Houston, said the criticism has cast a "cloud" over the criminal justice system and urged the commission to act quickly to resolve the Willingham case and others pending before it.

"I am concerned that there appears to be some footdragging in an attempt to come up with roadblocks to delay looking at whether or not Texas has been using appropriate forensic science as it relates to arson cases," Ellis said.

"New chairman of forensic panel plans to resume Willingham case," is Dave Montgomery's Fort Worth Star-Telegram report.

Responding to questions by Whitmire, Bradley said the commission would rely on Beyler’s report as "a part of our work" in examining the forensic science in the case. But he did not say whether the commission would resurrect plans to call Beyler to testify about the report, explaining that he could not discuss details about an ongoing case.

Bradley said that neither Perry nor the governor’s aides have told him how to do his job. He also countered Sen. Rodney Ellis’ inference that the governor’s office may have tried to influence the inquiry, pointing out that Ellis is board chairman for the New York-based Innocence Project, which filed the complaint that led to the commission’s inquiry in the Willingham case.

"There are some who could make the same claim about your work," Bradley said.

Ellis, appearing at a news conference later with project Director Barry Scheck, defended his position with the organization.

"If anybody wants to criticize me and think it’s a conflict of interest somehow to be a state senator and to feel like you ought to play a role in making sure that innocent people are not convicted and sent to prison, I stand accused," the Houston Democrat said.

Ellis said he’s concerned about possible "delaying tactics" to stall the Willingham case and other inquiries by the commission.

"There’s a cloud over this process," Ellis said.

Spectators at the hearing included Austin author-entertainer Kinky Friedman, a Democratic candidate in the 2010 governor’s race. Asked why he chose to attend the meeting, Friedman responded: "Justice."

"Forensic panel's new chief says he is not a pawn," is R.G. Ratcliffe's Houston Chronicle report.

During Tuesday's meeting, Bradley tangled repeatedly with Sen. Rodney Ellis, D-Houston, chairman of the board of the Innocence Project. The project in 2006 filed a complaint with the forensics commission that launched its probe into the Willingham case, as well as that of Ernest Willis, who spent 17 years on death row before being cleared in an arson murder by modern scientific techniques.

Under questioning from Ellis, Bradley kept referring to the Innocence Project as a “New York nonprofit” and implied that its mission was to end the death penalty. Ellis responded that he presided over three executions as the Senate pro tem and just wanted to make sure “we get the right person.”

Ellis said there are 742 people serving time in Texas for arson convictions and he wants to make sure none was convicted on bad science.

Bradley said the commission's role is limited to studying science, not second-guessing judges and juries.

“The commission is not charged with debating the death penalty. The commission is not charged with determining whether people are guilty or innocent,” he said.

“Don't put our state in the position that there is a perception that people are using junk science to get convictions,” Ellis said.

State Sen. Dan Patrick, R-Houston, noted that one forensics expert who tried to get Perry to halt the Willingham execution, Gerald Hurst, told the Fort Worth Star-Telegram on the day of the Governor's Mansion fire in June 2008, that it likely was a construction accident, not arson. A security videotape later showed a man fire-bombing the mansion.

“Not one shred of evidence ever was presented that the man (Willingham) was innocent,” Patrick told Bradley. “Don't be bullied, and don't be swayed.”

Elise Hu writes, "Forensic Science Chairmen Face Off," for the Texas Tribune.

He's usually the one asking the questions. But John Bradley, the Williamson County District Attorney and the newly-appointed chairman of the Texas Forensic Science Commission, spent his morning answering a steady stream of queries from Texas lawmakers.

At issue, how to reform the previously obscure panel and when it will re-open the investigation into whether faulty science led to the arson conviction of Cameron Todd Willingham, a Corsicana man who was executed by the state in 2004.

"Will we proceed with the Willingham case? I think I've made it very clear in my statements that we will," Bradley said. But he stopped short of setting a timetable for when the high-profile case will get a review by his new panel.

Bradley told the Texas Senate Criminal Justice Committee that the forensic science panel currently lacks a set of uniform rules and procedures, and that he doesn't want to move forward with any specific investigation without adopting them.

His predecessor disagrees.

"You could go forward with the investiation while concurrently adopting some of the rules and procedures that he says need to happen," said the panel's former chairman, Austin attorney Sam Bassett, who sat in on Tuesday's hearing.

And:

Bassett sat in on Bradley's testimony Tuesday and said afterward he wants to see the new chairman act more quickly.

"It's important to me because we have people in prison for arson," said Bassett. "And we have ongoing arson prosecutions. So I think it's a matter of urgency."

Bradley says the full panel will meet in January to begin the process of writing and adopting rules. One of the lawmakers responsible for creating the forensic commission, state Sen. John Whitmire, D-Houston, said he hopes the attention brought to the panel will renew focus on sound science in Texas criminal investigations.

"Forensic panel chair offers plans," is the title of Janet Jacobs' report for the Corsicana Daily Sun.

Bradley asked the senators for more resources, including more staff and funding, although he stopped short of requesting subpoena powers for the commission.

Senators told Bradley that they wanted the commission to look into forensics labs that were neglecting duties or producing false reports, and they wanted transparency in the investigations. Several senators also expressed concerns that the commission would become a political pawn in the upcoming governor’s race.

Bradley said he did not see his sudden appointment as a political ploy by Governor Rick Perry.

“It’s not my job here to defend any political party or any particular public official,” he said, adding that he was glad to see in the audience gubernatorial candidates who have “an interest in forensic science.”

He also said that he is not friends with Perry, nor has he discussed with Perry or the governor’s staff, what the commission should or should not do.

“Certainly, it’s without question that the timing of the appointments of this commission did seem to interrupt the process,” Bradley said. “I think that was inevitable, though, given the way the legislation structured the commission.”

Sen. John Whitmire, chairman of the senate committee on criminal justice, said the timing could have been a good thing, since it could result in a stronger commission with better results.

“The circumstances, the timing of those appointments could be a blessing,” Whitmire said.

He went on to challenge Bradley to make the commission a worthwhile organization that renews confidence in the Texas justice system. He pointed out that Houston’s crime lab has 4,000 unopened rape kits, and 1,000 pending rape cases.

“That’s a challenge to you, a charge,” Whitmire said.

CNN continues to watch the case with, "Texas execution probe won't be 'hijacked,' chairman says.

Earlier coverage begins here, with a link to Dave Mann's Texas Observer coverage of the hearing .

All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas & Virginia Executions

Texas and Virginia both carried out executions tonight.  Shortly after 6:00 pm in Huntsville, Texas executed Yosvanis Valle.  It was the state's 21st execution of 2009; Texas' 444th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

Allan Turner posts, "Gang leader executed for '99 Houston killing," at the Houston Chronicle.

Valle, 34, was the 21st Texas killer executed this year and the first of three men condemned by Harris County juries set to die by the end of next week.

Tonight's execution was the 111th ordered from Harris County, far more than any other Texas county.  No other state has been responsible for as many executions as Harris County. 

Shortly after 9:00 pm (EST), Virginia executed John Allen Muhammad.  The Washington Post reports, "Muhammad executed for sniper killing."  It's written by Josh White and Maria Glod.

Federal authorities, who could have allowed Muhammad to be tried in any of the jurisdictions that saw a sniper slaying, chose the Meyers case because Prince William Commonwealth's Attorney Paul B. Ebert had a stellar record in capital cases -- he had sent a dozen people to Virginia's death row -- and Virginia was known for its speedy appeals process.

The decision paid off. Just six years after Muhammad's conviction, he was put to death, having exhausted every legal option. The Supreme Court denied his final request for a stay on Monday, and Virginia Gov. Timothy M. Kaine (D) rejected his clemency request Tuesday.

Muhammad's appellate attorneys have long argued that their client is mentally ill and that he was incompetent to represent himself and perhaps even to stand trial. They decried Virginia's haste in executing him.

Virginia has now executed 104, less than the number of executions ordered from Harris County, Texas.  Oklahoma has carried out 91.

To date, there have been 45 executions in the nation this year; 1,181 since 1977.

According to TDCJ, four additional executions are scheduled in Texas during 2009, including three on consecutive nights next week.  Four execution dates have already been set for 2010 in Texas.

News Coverage of the Juvenile Sentencing Cases

As noted yesterday, the transcripts of Sullivan v. Graham and Sullivan v. Florida are available via the Court's website. Scotus Wiki files for Graham v. Florida and Sullivan v. Florida contain all briefing.

Lyle Denniston expanded his initial SCOTUS Blog post, "Analysis: The Chief leads on juvenile sentences?"

The Sullivan case, argued section, brought some of the same exchanges, but was dominated by questions of whether the Court had jurisdiction to hear the case.  Justice Ginsburg commented very early to Joe Sullivan’s lawyer, Bryan Stevenson, that “before you get to the particulars of this case, there is a serious question” about whether Florida law barred the challenge to the no-release sentence.

Several Justices said that, if the Court were to decide that the Roper decision was a death penalty-only case and thus did not apply to life sentences, then Florida’s “procedural bar” did, in fact, prevent Sullivan from making his challenge in 2007 to a sentence he received in 1989.  “You’re out of court” if Roper does not apply, Justice Scalia said.

When Stevenson did get a chance to discuss the merits, he sought to persuade the Court that, whatever line it might draw against life-without-parole for minors, it definitely should rule it out for 13-year-olds.  Once again, though, he encountered the Chief Justice’s apparent agenda.  “If we require consideration of age under the Eighth Amendment,” Roberts commented, “we avoid all these line-drawing problems.”

Makar, making a return appearance in the Sullivan case, had to spend much of his time trying to clear up confusion about how often the life-without-parole sentence is given to juvenile offenders, in Florida and elsewhere.  With Justice Stephen G. Breyer leading the questioning of the state’s lawyer, the difficulties of drawing age lines that would properly reflect the capacity for “moral responsibility” became more evident.

Breyer did draw from Makar the minimal concession that, if the Court were to rule in the Graham case that Roper did apply to no-release sentences, and that were made retroactive, then Sullivan would be allowed — under Florida law — to file a new challenge to his sentence.

"Justices Consider the Role of Age in Life Sentences," is the title of Adam Liptak's report for the New York Times.

A majority of the justices at two Supreme Court arguments on Monday seemed inclined to find a way to take account of the age of young offenders in deciding whether they may be sentenced to life without the possibility of parole.

But there was disagreement among the justices about where to draw various lines and, indeed, over whether line-drawing or case-by-case determination was the right approach.

A lawyer for Joe Sullivan, who was sentenced to life without parole for raping a 72-year-old woman when he was 13, asked the court to say that the Eighth Amendment’s prohibition of cruel and unusual punishment forbids such sentences for youths under the age of 14 convicted of any crime, including murder.

“To say to any child of 13 that you are only fit to die in prison is cruel,” said Bryan Stevenson, Mr. Sullivan’s lawyer. “It can’t be reconciled with what we know about the nature of children.”

In a separate argument in a second case, a lawyer for Terrance Graham, sentenced to life for armed burglary at 16 and a probation violation at 17, said the line should be set at 18 but only for crimes that did not involve a killing.

The court has drawn bright lines in its capital jurisprudence, forbidding the execution of offenders under 18 in 2005 in Roper v. Simmons and of people of any age for crimes against individuals other than murder last year in Kennedy v. Louisiana. The question at Monday’s arguments was whether the logic of those decisions should be extended to cases outside the area of the death penalty.

Chief Justice John G. Roberts Jr. suggested a compromise approach that did not involve categorical distinctions but would instead require consideration of the offender’s age in deciding whether the sentence was proportional to the crime case by case.

“We know from Roper that death is different, and we know from Roper that juveniles are different,” the chief justice said. “Wouldn’t it make sense to incorporate the consideration of the juvenile status into the proportionality review?”

Outside the context of the death penalty, the court’s Eighth Amendment jurisprudence has not taken the offender’s age into consideration in deciding whether a sentence is proportional to the crime. Requiring sentencing judges to add age to the sentencing calculus would presumably make a difference in some but not all cases.

Bryan S. Gowdy, a lawyer for Mr. Graham, said a case-by-case approach at the time of sentencing cannot work because juveniles are still unformed.

“At that age we cannot make a determination about whether or not the adolescent will or will not reform,” Mr. Gowdy said.

The National Law Journal carries Marcia Coyle's, "Supreme Court Grapples With Constitutionality of Juvenile Sentences."

"The sentence is unequivocal and cruel because it rejects any hope that the adolescent can change," said Graham's counsel, Bryan Gowdy of Mills Creed & Gowdy in Jacksonville, Fla., in Graham v. Florida.

Gowdy urged the justices to announce a per se rule that juveniles under the age of 18 cannot be sentenced to life in prison without parole. In the second argument, Sullivan v. Florida, Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala., sought to draw the line at age 14, but said he fully supported Gowdy's line as well.

Both lawyers relied heavily on the analysis in the Supreme Court's 2005 Roper v. Simmons decision striking down the death penalty for juvenile murderers. The majority in that case found that juveniles younger than 18 lacked the maturity and moral culpability of adults.

But Florida Solicitor General Scott Makar told the justices that "death is different." He warned that a "categorical rule" eliminating life in prison without parole would undermine Florida law. The state, he said, had enacted strong punishments for juvenile crimes in response to a serious problem. He also noted that many states have eliminated parole in their criminal justice systems.

"A categorical rule goes against the national trend and consensus," said Makar.

Several justices clearly had trouble with attempting to pinpoint at what age the punishment would violate the Constitution and at what point a juvenile sentenced to life in prison would become eligible for parole review.

"What makes us more culpable after our 18th birthday?" Justice Sonia Sotomayor asked Gowdy.

"A line has to be drawn somewhere," responded Gowdy, adding that 18 is the age supported by social science studies of juvenile behavior and maturity.

Justice Samuel Alito Jr. told Gowdy, "You're making a per se argument that no matter how horrific the crimes, no matter if no remorse is shown, that person must be made eligible for parole?"

Gowdy said yes. "Life with parole gives some hope that later in time he may be released." Alito asked when parole must be considered if the high court were to ban the life without parole sentence. Gowdy said that should be left to the states.

Chief Justice John Roberts Jr. repeatedly pressed lawyers for the juveniles and the state on whether a better solution would be to declare that the Eighth Amendment required judges to consider the youth's age in sentencing and then whether the sentence was "proportional" for an offender of that age and for the particular crime.

"Why doesn't that seem more sensible?" asked Roberts. "It avoids all of the line-drawing."

But neither the lawyers for Graham and Sullivan nor for the state agreed with Roberts.

Stevenson said proportionality review has not worked well in cases involving children. Gowdy said a judgment cannot be made at sentencing whether a juvenile can be rehabilitated. That judgment must be made later, he said.

Florida's Makar argued that judges now consider the offender's youth in imposing life without parole. "Age does matter," he said.

Robert Barnes writes, "Life prison sentences for minors divide court," for the Washington Post.

Roberts suggested a finding that he said would be somewhere in the middle. Rather than having rigid rules based on age, he said it would be better to require judges to consider the defendant's age when imposing harsh sentences, and then having courts review whether they are disproportionate to the crime.

Justice Ruth Bader Ginsburg said Roberts's idea would not solve the basic problem: that juveniles are still developing and are not fully culpable for their actions. Decisions about whether they have reformed can be made only later. The question is, "Has this person overcome those youthful disabilities?" she said.

Several justices seemed troubled by the patchwork of laws covering juveniles and an uneven distribution of those juveniles serving life without parole for non-homicides. Of 111 such juveniles nationwide, 77 of them are in Florida, with the rest spread across only six other states.

Justice Sonia Sotomayor pressed Makar on the minimum age at which a child in Florida could be subjected to the circumstances that could lead to a sentence of life without parole. He said there is no minimum.

"So a 5-year-old could be put away for life?" she asked.

"That is, theoretically," Makar answered. "We would hope that the system would not allow that."

Stevenson's client, Sullivan, is now 34, and the court spent much of its time in his case on Florida's argument that he was procedurally barred from bringing his claim so late. Stevenson argued that his challenge could come only after the court's decision in 2005, but even justices sympathetic to Sullivan's case questioned Stevenson on the point.

But if the court were to find for Graham that life without parole is unconstitutional for juveniles, thy agreed that would also give Sullivan a new claim.

"Supreme Court Weighs Life Sentences For Juveniles," is Nina Totenberg's NPR report.

Retribution versus the possibility of redemption were at the core of Supreme Court arguments Monday in two cases testing whether it is unconstitutionally cruel and unusual punishment to sentence a juvenile to life in prison without parole — for a crime that does not involve a death.

Florida leads the nation in sentencing juveniles to life in prison without parole for non-homicide crimes. Nationally, of 111 such cases, 77 are in the Sunshine State.

So it is fitting that the cases both came from Florida. One involves a 13-year-old convicted of rape; the other, a 16-year-old convicted of armed robbery.

And:

Next up on the juvenile side of the argument was defense lawyer Bryan Stevenson, who contended that while drawing the line at 18 is preferable, drawing it at 14 is imperative.

Roberts observed that while the death penalty is reserved for the worst of the worst, life without parole is not reserved for the worst of the worst.

Lawyer Stevenson replied, "We think that with regard to non-homicides, life without parole occupies the same end-of-the-line status that the death penalty does with homicide."

Defending life in prison without parole in both cases Monday was Florida Solicitor General Makar. He argued that the court should not do anything to contradict what he called the national trend for tougher juvenile sentences and abolition of parole.

Roberts: "You're arguing for a categorical rule of your own that age should not be considered in sentencing."

Kennedy: "What is the state's interest in keeping the defendant in custody for the rest of his life if he has been rehabilitated at some point and there's no longer a real danger?"

Roberts wondered, "Which of these cases is worse?"

After some hemming and hawing, the state's lawyer said the rape was worse than the armed robbery.

Sotomayor then pointed to statistics showing that nationally, the median sentence for rape is 10 years. In light of that, she wondered why this rape by a 13-year-old justifies life in prison without parole.

Justice Stephen Breyer seemed to sum up the court's dilemma: "As a general matter, human beings are uncertain about how much moral responsibility to assign to individuals in a particular category. Is it appropriate to sentence someone to life in prison without parole at the age of 10? No. 11? No. 17? Yeah, maybe. We are in an area of ambiguity, what justifies taking a person's whole life away."

The Christian Science Monitor carries Warren Richey's, "At Supreme Court, no accord over life sentences for juveniles."

Colorado and Texas have rewritten their juvenile sentencing laws to end life-without-parole punishment for those under 18. Instead, the maximum juvenile sentence in both states is now 40 years in prison followed by an assessment for potential parole.

Earlier coverage begins with this post.

Dave Mann on Today's Capitol Events

Dave Mann covered today's Senate Criminal Justice Committee meeting and the Rodney Ellis, Barry Scheck news conference that followed.  He's posted, "The Willingham Hearing," at his Texas Observer blog.

Mann has written an impressive series of articles for the Observer uncovering other flawed Texas arson cases, noted here.

The small hearing room in the Capitol basement was packed this morning to see the Senate Committee on Criminal Justice take on the infamous Cameron Todd Willingham case.

Judging from the crowd, the hearing promised excellent political theater. Kinky Friedman was there (accompanied, as always, by sidekick Little Jewford), so was Innocence Project co-founder Barry Scheck, a number of Texas House members, Cory Session (the brother of the late Tim Cole), and, if I'm not mistaken, just about every reporter and blogger in town.

They had all come to hear the senators grill John Bradley, the prosecutor who Gov. Rick Perry appointed to lead the Forensic Science Commission. Critics have accused Perry of installing Bradley to stall or undermine the commission's investigation of Willingham, a likely innocent man executed in 2004 for murder by arson. Many forensic experts now believe the fire was accidental, not arson, and that Willingham was convicted by flawed forensics. (Background on Forensic Science Commission controversy here; and more on Willingham's case here.)

Once the hearing began, however, there was few theatrics. In fact, the Willingham case was mentioned only in passing (save for one speech by Sen. Dan Patrick).

And:

(In a press conference after the hearing, Scheck and Sen. Rodney Ellis suggested that some of Bradley's ideas amounted to stall tactics. "How long can it really take to get a definition of 'negligence' from the Office of Court Administration?" Scheck said. "We hope Chairman Bradley moves forward in a timely way....There are potentially people in prison who shouldn't be there based on this kind of unreliable forensic science")

Indeed, that's the real issue here. During the hearing, Ellis pointed out that more than 740 Texans are serving prison sentences for arson. In that sense, the work for the Forensic Science Commission is much larger than Willingham.

"We want to make sure we got it right," Ellis said. He then suggested that there was the appearance of politically motivated delays in the Willingham investigation.

Bradley shot back by questioning Ellis' role on the board of the Innocence Project, which brought the Willingham case to the commission. "I have to wonder if you're here on behalf of the New York nonprofit who filed the complaint," he said. Later, Rep. Tommy Merritt asked if Bradley had similar concerns about other lawmakers on the dais, and Bradley quickly cut him down. "I don't even know your name," he said.

But the discussion kept coming back to fire science.

I've been writing for months that the focus of the Willingham investigation should be on the arson forensics. The prospect that Texas might admit executing an innocent man is alluring. But the real value of the Willingham case will be drawing attention to the kind of disproved arson evidence that has sent dozens -- perhaps hundreds -- of innocent people to prison.

I'll have links to full news coverage tomorrow.  Earlier coverage begins here.

Archived Video of Senate Hearing & Ellis, Scheck News Conference Available

Streaming video of this morning's Texas Senate Criminal Justice hearing on the Forensic Science Commission has been posted to the Archived Video section of the Senate website, here.

Following the hearing, Senator Rodney Ellis held a news conference with Innocence Project Co-Director Barry Scheck.  It's also available in streaming video, here.

The Senate website uses Real Player to play audio and video.  A free version of Real Player is available for downloading if you do not have it installed on your computer.

Texas Execution - Virginia Execution

Texas is scheduled to carry out its 21st execution of 2009, tonight in Huntsville.  It would be the state's 444th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

"Cuban man set to die Tuesday for Houston slaying," is Michael Graczyk's Associated Press report, via the Houston Chronicle.

Yosvanis "El Cubano" Valle denied fatally shooting 28-year-old Jose Martin Junco at a Houston home in June 1999 but said there was little he could do to avoid lethal injection that would make him the 21st inmate executed in Texas this year.

The U.S. Supreme Court earlier this year refused to review his case. The Texas Board of Pardons and Paroles last week rejected a request from his lawyers that his death sentence be commuted to life in prison.

"We really don't have a leg to stand on," attorney Roland Moore said.

Junco, known as "Yogi," was confronted at his Houston home by several men connected to a prison gang who had targeted him for robbery. Court documents showed the June 1999 holdup was a test devised by Valle to see if one of the gang members, Kenneth Isaac Estrada, had the courage to shoot Junco.

After the shooting, Valle, identified as leader of the group, bragged about how he emptied the 10 shots from his 9 mm pistol into Junco. Evidence showed Estrada shot the victim once.

"My people turned on me," he told The Associated Press recently from a small visiting cage outside death row. "I know one thing: I know the person I am. I'm not this monster that the state of Texas is trying to make me look like."

Estrada was arrested after Junco's girlfriend identified him as one of the gunmen. She was in the house at the time of the shooting.

Valle was arrested when his fingerprint was found in a car tied to another slaying, one of several authorities tied to him.

Estrada, tried separately, got life in prison.

Valle got death.

He said witnesses who testified against him "changed their story."

"People were lying," he said. "It's frustrating to talk about this, changing back and forth, making deals in a way that looks good to them."

One of Valle's trial lawyers, Robert Morrow, said the state's case was "based on a lot of snitch testimony." He also said Valle's punishment defense was hampered by witnesses unable to leave Cuba because of U.S. government restrictions on travel between the two countries.

"I felt we were hamstrung," he said.

Tonight's execution would be the 111th ordered from Harris County, far more than any other Texas county.  No other state has been responsible for as many executions as Harris County.  Virginia, which also has a scheduled execution tonight, has carried out 103 executions to date; Oklahoma, 91.

According to TDCJ, four additional executions are scheduled in Texas during 2009, including three on consecutive nights next week.  Four execution dates have already been set for 2010 in Texas.

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

As noted above, Virginia is set to execute John Muhammad, tonight.  David Stout reports, "D.C. Sniper to be Executed Tuesday," for today's New York Times. 

The Supreme Court on Monday declined to block the execution of John A. Muhammad, the sniper who terrorized the Washington area seven years ago. The step cleared the way for Mr. Muhammad to be put to death on Tuesday unless Gov. Tim Kaine of Virginia intervenes.

The court did not comment in refusing to hear Mr. Muhammad’s appeal, but three justices objected to the relative haste accompanying the execution.

Justice John Paul Stevens complained that “under our normal practice,” Mr. Muhammad’s petition for the court to take his case would have been discussed at the justices’ conference scheduled for Nov. 24. But because Virginia scheduled the execution for Tuesday, the judicial process was rushed, Justice Stevens said in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Stevens wrote that, having reviewed Mr. Muhammad’s argument, he did not disagree with the majority’s decision to decline the case. Nevertheless, he said, because the court declined to stay the execution, “we have allowed Virginia to truncate our deliberative process on a matter — involving a death row inmate — that demands the most careful attention.”

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld the death sentence three months ago. In rejecting Mr. Muhammad’s appeal, that federal panel said it was “unable to find reversible error in the conclusions of the state and district courts.”

Unless Mr. Kaine stops the execution, Mr. Muhammad, 48, will be given a lethal injection on Tuesday night for the killing of Dean H. Meyers, an engineer who was shot in the head at a gas station in Manassas, Va.

Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over three weeks in October 2002. Mr. Muhammad’s accomplice, Lee B. Malvo, who was 17 at the time, was sentenced to life in prison without parole. The two are also suspected of fatal shootings in Alabama, Arizona and Louisiana.

Mr. Kaine has promised to review Mr. Muhammad’s request but has signaled that he is not inclined to intervene.

Justice Stevens' statement is here.

"Supreme Court Denies Execution Stay in D.C. Sniper Case," is the National Law Journal report by Mike Scarcella.

The planned execution tonight of John Allen Muhammad remains set following the U.S. Supreme Court's refusal to stay the death sentence.

Justices John Paul Stevens, Sonia Sotomayor and Ruth Bader Ginsburg filed a two-page statement (pdf), saying: "This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."

The three justices said that Muhammad's petition for certiorari, which was timely filed, would have been reviewed at the Court's conference Nov. 24. Stevens, Sotomayor and Ginsburg, however, did not disagree with the Court's decision to deny certiorari.

"By denying Muhammad's stay application, we have allowed Virginia to truncate our deliberative process on a matter -- involving a death row inmate -- that demands the most careful attention," Stevens wrote in the statement, joined by Sotomayor and Ginsburg. "This result is particularly unfortunate in light of the limited time Muhammad was given to make his case in the District Court."

Stevens said in the statement that he believes "that the Court would be wise to adopt a practice of staying all executions scheduled in advance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus." Such a practice, he said, would preserve "basic fairness in ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive."

Related posts are in the execution date category index.

Rick Casey on Deterrence

The Houston Chronicle columnist's latest is, "A murder mystery by the numbers."

This is a different kind of murder mystery.

For years, social scientists have tried to determine whether the death penalty has a deterrent effect. Put another way, does the death penalty save lives?

In 1967, sociologist Thorsten Sellin found no significant impact when he studied murder rates in adjacent states with differing approaches to capital punishment.

The next year, Nobel Prize economist Gary Becker developed a theory supporting the deterrent value of the death penalty, and eight years later one of his students published a study based on national statistics purporting to show that each execution saved eight lives.

The controversy led to a study commissioned by the National Academy of Sciences that found evidence of deterrence to be unconvincing.

More recent studies have reached conclusions all over the map. A national study in 2005 found “profound uncertainty” on the question and even suggested that executions might slightly increase the murder rate (possibly through a cultural “brutalization”). Another study that year suggested that each execution saves 150 lives.

All these studies are noted in a peer-reviewed article about to come out in Criminology, the journal of the American Society of Criminology. The study was conducted by Duke University Sociologist Kenneth C. Land, Sam Houston State University criminologist Raymond Teske Jr. and one of Land's graduate students, Hui Zheng.

Land is a prominent specialist on research methodology. He earned his doctorate at the University of Texas and chaired Duke's sociology department from 1986 to 1997.

After reviewing earlier studies, these authors came to the conclusion that the death penalty is used too sporadically and inconsistently around the nation for studies on national data to accurately measure its effect on crime.

They decided to focus their study by taking advantage of Texas' gift to social science, what they call “an orgy of executions in Texas beginning in 1994,” during which time the state provided more than a third of the nation's executions.

To measure the impact of executions, the authors looked at two distinct periods.

The first was from 1980 through 1993, when for a variety of legal reasons, executions were relatively infrequent and uncertain. In those years there were about eight executions a year, and about five convicts a year removed from death row for various reasons.

And:

Using sophisticated statistical models, the researchers tested the impact of the larger number of executions.

They found that many earlier studies had vastly overestimated the effect, but the number of murders did go down in the short-term aftermath of executions.

Based on two different statistical models, they found the effect in the months after each execution to be a reduction of between 0.5 to 2.5 homicides.

That may not sound like much, but as the authors note, “even the estimated .5 deterrent per execution yields an estimated reduction in the expected numbers of monthly homicides of 5 to 10 during the subsequent 12 months, which is substantial.”

I'm sure this isn't the last word on the issue. That's no mystery. Here's the mystery:

This study and previous ones show no correlation between the amount of publicity executions receive and their deterrent effect.

“We have no theory on that,” Teske said on Friday. After a few more questions, he said, “I hear your frustration. If I wasn't working with one of the top guys in the nation, my confidence would be shaken.”

One other mystery: The study shows, as other studies have, more impact on the kinds of murders that don't qualify for the death penalty than on those that do.

Related posts and past coverage is in the deterrence category index.

CNN Takes Another Look at the Willingham case

"Texas resists family's effort to clear executed man's name," is by Matt Smith.  Here are two brief excerpts from this report that charts the history of the case.

Cameron Todd Willingham's family here in Oklahoma never believed he set the fire that killed his three daughters.  

"We could not even imagine it," his cousin, Patricia Cox, recounted recently. "That was completely ludicrous to us."

But 16 days after the fire, Willingham was arrested. And within a year, he was on death row. On February 17, 2004, he was strapped to a gurney in a Texas prison and given a lethal injection, proclaiming his innocence to the end.

The story of how Willingham -- Todd, to his family -- went from a home on a shady street in Ardmore to the death chamber is a tale of science and skull tattoos, of last-minute hopes raised and dashed. It is a story wrapped up in allegations that the governor who let the execution go forward is now trying to derail an investigation into whether Texas put an innocent man to death.

And in Ardmore, where Willingham's baby shoes still sit on a desk in the house where he grew up, the family that fought to save his life is still trying to clear his name.

"It's not over," Cox's sister, Judy Cavnar, said. "This is a long way from being over."

And:

Back in Ardmore, the Willingham family has learned some hard lessons. One is that there's a legal system in America -- "not necessarily a justice system," Cavnar said.

Now that the Texas investigation is in limbo, Cox said she's choosing her words carefully. The investigation "meant everything to us," she said. "We're a little fearful that it's not going to happen."

But she said they're still determined to press the issue -- not just for Todd, but for others on death row who might be in the same circumstance.

Said Cox: "If you don't think it can happen to you, you're wrong."

Earlier coverage begins with the preceding post.

Previews of Today's Senate Hearing

"Texas Senate hearing today to focus on panel that reviewed 2004 arson case," is Robert Garrett's report for the Dallas Morning News.

John Bradley, the new chairman of the Texas Forensic Science Commission, is expected to face sharp questioning by the Senate Criminal Justice Committee.

Committee Chairman John Whitmire, the Houston Democrat who wrote the 2005 legislation that created the commission, has said he wants to know Bradley's plans for the commission and whether it will hear from an expert critical of arson evidence used against Cameron Todd Willingham.

Bradley has said he would recommend that the commission complete its review of forensic science in the case. Willingham was executed in 2004 after Gov. Rick Perry reviewed his case and declined to intervene.

But the commission first needs to establish written policies and procedures, said Bradley, the district attorney in Williamson County.

And:

Austin criminal defense lawyer Sam Bassett, the commission's previous chairman, said he agrees that "reports and documents should remain in the commission's hands" until it issues a final report about a case.

The commission reluctantly released an expert's report that it commissioned on the Willingham case soon after the report was submitted in August because the attorney general's office advised that it was a public document, Bassett said.

He said private meetings, though, will undercut public faith in the commission.

"It's a commission dealing with cases that have already been through the judicial system," Bassett said. "It's more of a policy commission. ... We're not trying to arrest somebody."

Dave Montgomery writes, "Forensic commission may emerge from controversy stronger, more effective, lawmaker says," for the Fort Worth Star-Telegram.

The uproar over Cameron Todd Willingham could help transform the Texas Forensic Science Commission from an anemic, poorly funded agency into a muscular watchdog with greater powers to oversee forensic investigations, a key lawmaker said Monday on the eve of a long-awaited committee hearing.

"This commission has been treated like a stepchild from the beginning," said Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee. "Maybe we’re fixing to have something really good come out of this. There is a real possibility that we could come out with a more effective and stronger commission."

The commission’s new chairman, Williamson County District Attorney John Bradley, will appear before the committee today to outline his long-term goals for the panel and his plans for pursuing a stalled inquiry into an 18-year-old arson investigation that led to Willingham’s execution in 2004.

Willingham, of Corsicana, was convicted of capital murder for setting a house fire that killed his three daughters. He repeatedly insisted that he was innocent.

Whitmire called the hearing after Gov. Rick Perry abruptly replaced three members of the commission Sept. 30 as it was preparing to hear from fire expert Craig Beyler, who concluded that the 1991 investigation was flawed and did not sustain an arson finding. Eight other fire science experts have reached similar conclusions.

And:

Sen. Rodney Ellis, D-Houston, a committee member, said he wants Bradley to give a "clear picture" on when the commission plans to return to work on the Willingham inquiry and a related case. "There is no good reason for further delay," Ellis said.

He also questioned statements by Bradley that he wants to restrict information about the commission’s deliberations until a final decision is made. "The public needs to know more, not less," he asserted in an e-mail.

Nevertheless, the commission last month did not release complaints, a chart showing the status of complaints and some other information requested by the Star-Telegram under the Texas Public Information Act. Instead, it asked the attorney general’s office to rule on whether the information withheld was exempt from disclosure.

The attorney general’s office, however, has repeatedly advised commissioners since 2008 that such records are subject to public disclosure.

Perry’s shake-up of the commission prompted accusations that the Republican governor, who denied a last-minute appeal to postpone Willingham’s execution, was trying to undercut the inquiry. Beyler, who was hired by the commission in late 2008, has demanded that Perry’s new appointees resign and relinquish their posts to their predecessors.

Whitmire, in a telephone interview Monday, said Beyler overstepped his role in making the statements, thus raising questions about his objectivity. "The process would have been better served if he had kept his mouth shut," Whitmire said.

Beyler did not immediately respond to an e-mail seeking reaction to Whitmire.

The Texas Tribune has, "The Big Conversation," posted by Reeve Hamilton.

If Williamson County DA John Bradley is sick of the spotlight, then he got appointed to the wrong commission.  Of course, many people would argue that regardless.  

After New Yorker coverage and the Anderson Cooper 360 treatment, many could probably recount the story in their sleep: two days before the Texas Forensic Science Commission was to review a report critiquing the science behind the arson investigation that led to the conviction and execution of Cameron Todd Willingham, there came from Gov. Rick Perry’s office a sudden need to replace three of the commission’s members.  Bradley was appointed the new chairman.

Today, Bradley will testify before the Texas Senate Criminal Justice Committee and lay out the commission’s status report and intentions. The message Bradley brings will likely not appease those who believe his primary function on the commission is to stall the Willingham investigation.  He will argue that the commission is currently lacking in the staff, resources, structure, and clarity of purpose necessary to conduct investigations into allegations of faulty science. Exhibit A: the commission only has one full-time staffer.

Bradley has committed to completing the Willingham investigation, but, in a recent editorial, asked that the public “be patient” until the commission is fully functioning.  This pace might not satisfy committee members like State Sen. Rodney Ellis, D-Houston, who also sits on the board of the New York-based Innocence Project that brought the case before the commission. Ellis recently told the Tribune that Bradley should focus on “carrying out the commission’s mandate, not finding ways to delay investigations.”  Ellis will hold a press conference with Innocence Project co-Director Barry Scheck immediately following the hearing to "address outstanding issues."

  Senator Ellis' news conference will also be webcast on the Senate website.  Earlier coverage begins with the preceding post.

Today's Willingham Forensic Editorials

Today's Austin American-Statesman carries the editorial, "Lawmakers should reassess panel's purpose."

Those who know Williamson County District Attorney John Bradley — even, and maybe especially, his detractors — know he doesn't do anything halfway. Folks being prosecuted by Bradley know they are being prosecuted.

Now the entire state is counting on Bradley to take the same, thorough approach on a new mission added to his plate. As Gov. Rick Perry's recent and controversial appointee as chairman of the Texas Forensic Science Commission, Bradley could be on the hot seat today as he testifies to a Texas Senate Committee looking into developments at the agency.

At the center of it all is the now widely publicized report commissioned by the agency from an arson expert who concluded that nobody could have used the available evidence to show that Cameron Todd Willingham set the 1991 fire that killed his three children.

Willingham was executed in 2004.

And:

Bradley said the agency needs more resources and a clear set of policies and procedures. He is correct. But we are deeply concerned by his call for broad power, as enjoyed by state agencies with investigative authority, to keep materials "confidential until a final decision is released." That probably would include reports such as the one in the Willingham case.

We believe reports like these are far too important to keep secret until the commission has a chance to investigate and deliberate. Texans are discerning enough to see the unvarnished report — paid for with their tax dollars — when it is submitted.

We urge lawmakers to take a long, hard look at this important commission and re-assess exactly what it should do and, perhaps more importantly, what should happen with its findings.

Obviously, any systematic problems it finds in the application of forensic science should be immediately corrected.

Not as obvious is what should happen with any post-conviction research it does that might lend doubt on the legitimacy of a conviction. Where does this commission fit in the criminal justice system?

Nobody wants or expects it to be a legislatively created body looking over the shoulders of the criminal justice system in specific cases. But it would be folly to ignore such information, especially when it might lend doubt to the legitimacy of a conviction.

Whether intended or not, this is a commission with potentially broad power and influence.

In light of the Willingham case — and the concerns raised by Bradley — we hope today's hearing is the start of a serious reassessment by lawmakers of what they have created.

"Senate panel needs clarity from forensics chairman," is the Dallas Morning News editorial.

The good news is that John Bradley, appointed to the job in September by Gov. Rick Perry, flatly promises to complete the review of the arson-murder investigation that led to Willingham's execution in 2004. Anything less would be unacceptable, since many Texans are concerned about whether slipshod forensic work contributed to the execution of an innocent man.

What's less clear is Bradley's sense of urgency and openness, and it's these areas that demand the committee's close inspection.

In a lengthy commentary submitted to newspapers over the weekend, Bradley, also Williamson County's district attorney, said producing a solid report on the Willingham forensics "takes time" and requires "careful deliberation." Further, he said the fledgling forensic panel launched the Willingham inquiry – its first – without benefit of written policies and procedures.

Because of the political backdrop of Bradley's appointment, committee members must make sure his intentions don't even remotely resemble a stall tactic.

Perry seemed to be in defensive mode in September when he bounced Bradley's predecessor from the job. The forensics panel was about to review a paid consultant's scathing critique of the original Willingham arson investigators, and critics demanded to know whether the governor had presided over an innocent man's execution. Perry's replacement of the commission chairman looked like the politically motivated dodge of a candidate for re-election.

Perry has a lot to lose with the outcome of the Willingham inquiry. He would eliminate the threat if the outcome didn't happen until, oh ... 2011.

For his part, Bradley pledged to approach his job "without political favor," as the Austin American-Statesman quoted him on Sunday.

The Senate panel needs to know more. Members, in fact, should pin him down on a timeline for shaping up commission procedures and reaching conclusions on the science behind the Willingham case.

The public also deserves clarity on what Bradley meant in bemoaning the fact that forensic commission reports and materials are not required to be kept confidential. He said even the "sensitive process of receiving a complaint" ought to have the "protections" of confidentiality.

Earlier coverage begins with the preceding post; next, the news previews.

Texas Senate Criminal Justice Committee Meets Today

Senator John Whitmire, Chair of the Committee and Dean of the Senate, called the meeting following Governor Perry's shakeup of the Texas Forensic Science Commission.  The Committee meets at 10:00 a.m., this morning in the Capitol.  The hearing notice is here.  The hearing will be webcast through the Senate's website, here.

I'll break out today's coverage in the next two posts.  First, editorials in the Austin American-Statesman and Dallas Morning News.  That will be followed by previews of the hearing.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Transcripts Available in Juvenile Cases

The transcripts of oral arguments in Graham v. Florida and Sullivan v. Florida are now available through the Court's website.

Lyle Denniston posts an initial version of, "Analysis: The Chief leads on juvenile sentences?"  A more complete version will be posted later today. 

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Lawyers for the two youths, who committed non-homicide crimes at age 16 and 13, sought to persuade the Court that the only way to deal constitutionally with no-release sentences for minor offenders was to declare all such sentences forbidden.  While there was much sympathy evident among some — not all — of the Justices for treating juveniles differently, it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth’s crime did not die.

The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime.  The question on how attractive that option might be — say, to Justice Anthony M. Kennedy — was whether that would be a meaningful inquiry that would in reality give youths’ some chance of avoiding having the state give up on them entirely.

The AP coverage is "High court looks at life sentences for juveniles," written by Mark Sherman, via Google News.

A seemingly divided Supreme Court wrestled Monday with whether teenagers can be locked away forever for their crimes. The question arose in two cases involving Florida men who are serving life prison terms with no chance of parole for crimes they committed as teenagers. Their lawyers argue that the sentences for people so young are cruel and unusual, in violation of the Constitution, because young people have greater capacity to change.

Justice Anthony Kennedy wrote the Supreme Court opinion four years ago that ruled out the death penalty for people under 18, judging them less responsible than adults. So most eyes were on him Monday as the court considered whether to extend that rationale to life without parole sentences.

But Kennedy offered little hint of his position, at one point suggesting it might be difficult to distinguish between juveniles and adults in cases that do not involve the death penalty.

"Why does a juvenile have a constitutional right to hope, but an adult does not?" he asked.

Justice Ruth Bader Ginsburg provided a possible answer, wondering whether teenagers can be accurately evaluated at the time they are sentenced. It may be possible that only after some years have passed that the state can determine, "Has this person overcome those youthful disabilities?" she said.

On the other side of the issue, Justice Samuel Alito questioned whether every last juvenile offender had to be given a second chance. "Some of the actual cases in which this sentence has been imposed in Florida involve factual situations that are so horrible that I couldn't have imagined them if I hadn't actually seen them," Alito said, recounting two that involved the rape of children.

And:

Graham, now 22, and Sullivan, now 34, are in Florida prisons, which hold more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

The justices could distinguish between the two based on the difference in their ages at the time of the crimes: It could rule that someone as young as Sullivan was must eventually be considered for parole without granting Graham any relief from his sentence.

Sullivan's lawyer, Bryan Stevenson, stated his basic argument simply: "To say to any child of 13 that you are only fit to die in prison is cruel." Sullivan would be resentenced to 40 years in prison if he were to win his case at the high court, he said.

Kennedy's opinion in 2005 was rooted in two principles - that death is different from other punishments and that children are less culpable than adults.

Following that ruling, Stevenson noted that juveniles on death row in Florida - all convicted of murder - "got a better sentence than Joe Sullivan," life prison terms with the possibility of parole.

Earlier coverage begins with this post.  I'll have a full roundup of coverage in the morning.

The Utah Parole Board

"Utah parole board wields power judiciously," is the title of Stephen Hunt's report in today's Salt Lake Tribune.

Members of the Utah Board of Pardons and Parole would love to gaze into an inmate's future before releasing him back onto the streets.

"I wish we had a crystal ball, but all we have is good hard-headed common sense and a sensitivity to human nature," said Curtis Garner, board chairman.

The five board members -- two of them new this year and all lawyers with experience in the criminal justice system -- also have each other.

"A real strength is our ability to run thoughts and ideas past each other," Garner said.

Even though they make thousands of life-changing decisions every year, board members work largely in obscurity.

Current fiscal woes, however, have generated new respect for the parole board's role.

"In past years, the board has been a footnote in the discussions of state government," Garner said. "That is less and less so these days.

"The board has come to be seen as a relief valve for population problems at the prison."

In 2001, the board agreed to free more than 200 inmates up to nine months early to reduce overcrowding. Another mass release projected for 2010 was averted when lawmakers this year found funds to expand the Gunnison Prison.

Meanwhile, the board "builds bed-space sensitivity" into each decision by asking, "Who most needs to be in those beds," Garner said.

And:

The board members wield plenty of power, and they know it.

In Utah, judges hand down indefinite, or so-called indeterminate, sentences, such as zero to five years, one to 15 years and five years to life. It is the parole board that decides how long inmates actually spend behind bars.

Garner stressed that inmates are not entitled to a release date. "They have to earn it," he said.

The board has the same information judges do at the time of sentencing, and records and reports of everything an inmate does -- both good and bad -- while at prison.

"Public safety is the first concern, tempered by an equal concern for fairness to the inmate," Garner said. "We could keep the public safety by locking everyone up forever. But that would be wrong."

It would also be impossible since the state prison has only 6,700 beds, including space leased from county jails.

The board conducts about 4,500 in-person hearings a year. That equates to 4,500 inmates telling the board: "I take full responsibility for my actions."

"They all say it," Garner said. "We joke about it."

Garner added: "We get lied to a lot. We know that.

"But you can't become completely jaded. People do change and you need to be open to that possibility."

In fact, Garner said, statistics show that most inmates who come into the system at the age of 20, are out by the age of 40 and don't come back.

Yeates said an inmate's actions often speak louder -- and more honestly -- than his or her words.

"We look at programming," said Yeates, referring to substance-abuse counseling, sex-offender therapy and enrollment in high school and college classes. "What are they doing beyond their words?"

Harms said that one of the beauties of Utah's indeterminate sentencing system is that decisions are made with the passage of time.

"A judge doesn't know how an inmate will behave or how a victim will feel over time," Harms said. "We have that benefit."

Related posts are in the clemency category index. 

The 2005 report The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform, examined best practices in executive clemency.  The Appendix of The Role of Mercy contains comparative state information.   Role of Mercy was issued by  Texas Appleseed and the Texas Innocence Network. 

In Kansas

"Death penalty cases take time and scrutiny," is the title of a lengthy examination of Kansas' death penalty.  As with the Walla Walla Union-Bulletin series and the Louisville Courier-Journal article, both noted earlier today, this is a lengthy examination.

Larry Williams expected to wait 10 years to see the death sentence carried out for his daughter's killer. Now, 13 years later, Williams said he may have to wait another decade before Gary Kleypas exhausts his appeals.

Lawyers understand the need for such scrutiny in death penalty cases, but others like Williams wonder whether the execution chamber in Lansing will ever be used.

"Oh, it's been frustrating for me in more ways than one, obviously losing your daughter but then the long court case," Williams said.

The length of time it takes to resolve a capital case is one reason the death penalty costs about 16 times more than life in prison, according to a 2003 Kansas study. States in which executions have been carried out estimate even higher costs for death sentences.

Kleypas, found guilty of raping and killing 20-year-old Carrie Williams in 1996, was the first person condemned to die in Kansas in more than 30 years. Since the state reinstated the death penalty in 1994, no one has been executed.

New Mexico brought back capital punishment in 1979. By the time New Mexico repealed the death penalty in March, it had carried out one execution.

"And he voluntarily gave up his appeal or he would still be on death row," said Viki Elkey, director of the New Mexico Coalition to Repeal the Death Penalty.

As Kansas' first capital punishment case since the death penalty was reinstated, Kleypas' case has taken more than a decade because of legal errors and questions about how people here should be put to death.

The state Supreme Court overturned Kleypas' sentencing because of instructions given to the jury about the death penalty. After another jury sentenced him to death last year, Kleypas' appeal process began again.

Because appeals are taken in order, the state's first death penalty case now takes its place at the end of the line behind nine others.

And:

Next year, Kansas lawmakers are set to take up a bill to abolish the death penalty because of cost. It was introduced last year by state Sen. Carolyn McGinn, R-Sedgwick.

A 2003 study showed that seeking the death penalty in Kansas cost on average $508,000 per case. A non-capital case cost $32,000.

Elkey, who led the effort to repeal the death penalty in New Mexico, said cost was considered by state lawmakers. But the decision ultimately came down to support from the state's faith community and victims' families.

"Many supported the death penalty when their loved one was murdered," Elkey said. "Then they had to go through years of trials and appeals and realized it didn't work."

One part of the push to repeal the death penalty in that state, Elkey said, was a realization that victims' families were "revictimized" every time a case came up for appeal or a new hearing was ordered.

New Mexico replaced the death penalty with life in prison without parole.

"They would rather send the murderers to jail and be done with it," Elkey said.

Elkey said the New Mexico coalition is now pushing for legislation that would take money previously spent on the death penalty and start programs to help victims' families.

And:

Those facing death sentences are kept in isolation cells with limited human contact.

Their cells measure 8 feet by 10 feet. They remain alone in the cells 23 hours of each day. Four times a week, they are allowed to go outside to an enclosed area 8 feet wide, 20 feet long and 10 feet high.

They are allowed to shower in a locked stall three times a week. They also may meet with mental health workers in enclosed areas.

Otherwise, they remain in seclusion. They may earn telephone privileges. They see visitors only on video monitors from their cell block.

"Whenever they leave their cells, they are in restraints and must be accompanied by two staff members," said Capt. Dale Call, public information coordinator for the El Dorado prison.

Unlike those sentenced to life in prison, inmates under death sentences aren't allowed to earn their way into the general prison population. This means that they remain in isolation for decades, waiting to die.

Earlier coverage from Kansas begins with this post.

In Kentucky

"Kentucky's troubled death-penalty system lets cases languish for decades, is the title of a Louisville Courier-Journal report written by R. G. Dunlop.

Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed.

Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.

“We've got a system in Kentucky where there's not enough money for public advocates, for prosecutors, for drug courts, family courts, for juvenile services, for rehabilitation programs, and we're using the money we have in a way I think is unwise,” said Jason Nemes, former director of the state Administrative Office of the Courts. “Every dollar that goes to our ineffective capital punishment system is a dollar taken away from other needs.”

Leading death-penalty opponents, in Kentucky and beyond, contend that the long delays and commonplace reversals are the result of a broken system that was vastly underfunded and badly flawed when most of the older capital cases were tried.

And they argue that it is irreparable even now, because the execution of innocent defendants cannot be avoided with certainty; because the cost of trying to minimize that possibility exceeds any benefit reaped; and because the notion that capital punishment deters crime is a myth.

“The death penalty has a symbolic meaning beyond reason in this society,” said Ed Monahan, the state's public advocate. “Usually, the facts in the case are very difficult, and widely publicized, especially in rural communities. Elected officials have the weight of the community on them. … That weight means pressure to pursue the ultimate penalty.”

Despite the many shortcomings in the state's system of capital punishment, there has been little political sentiment in Kentucky to address them — as other state's have done. The governor's office and legislative leaders have been careful to criticize the delays without questioning the value of capital punishment itself, which remains relatively popular with the public.

And:

Precisely because most capital cases grind on for years, or decades, and rarely end with executions, Monahan contends that a better approach would be to spend the money involved “on prominent education and other social needs” while sentencing convicted murderers whose guilt is beyond question to prison without possibility of parole.

Former Kentucky Supreme Court Chief Justice Joseph Lambert and Nemes agree.

Lambert said death-penalty cases often become “legal monsters,” and that while a decision about whether to abolish capital punishment is a “political question … it's impossible to streamline death-penalty litigation to justify the cost, because doing so would dramatically increase the risk of wrongful executions.”

Part of the problem, Lambert added, is that citizens aren't “sufficiently informed” about the death penalty, and instinctively react to the perpetrators of heinous crimes with an attitude of, “‘let's execute 'em.' ”

Nemes, who also formerly served as Lambert's chief of staff and counsel and is now an attorney with a Louisville law firm, said that not only are the costs of the death penalty high, “the benefit to public safety is low. Are we really protecting the public?” he asked.

David Bruck, a clinical professor at the Washington & Lee School of Law and director of the Virginia Capital Case Clearinghouse, said that many of the same people who clamor for faster resolution of death-penalty appeals also want other criminal cases and their own civil lawsuits addressed in a timely fashion.

“So the system has to make choices,” Bruck said. “If the legal system spent all its time sorting out these …complicated appeals (in capital cases), it would tend to slow down everything else. It just isn't important to society as a whole that a handful of murderers get executed faster, whereas it is important that their civil cases, and the more routine criminal cases, get resolved.”

In Washington State

The Walla Walla Union-Bulletin has begun a four-day series on the death penalty. 

SUNDAY - Series overview, a column by Terry McConn and a timeline of the history of executions from 1904 to the present day.
MONDAY - The cost of trials, appeals and executions.
TUESDAY - Opponents and proponents of the death penalty argue their cases.
WEDNESDAY - The death penalty — Then and now.

The extensive overview, by Terry McConn, is titled, "Death penalty hangs in balance as debate heats up."

Few public policies find such staunch supporters and opponents as the issue of capital punishment.

And the debate seems to have heated up in recent months.

Tongues started wagging in the community last December as staff members at the Washington State Penitentiary — for the first time since 2001 — readied for an execution.

Two additional lethal injections were scheduled for March.

“Is it finally going to happen?” enthusiasts wondered aloud as the times drew nearer. “Are we finally going to get justice?” Those who disagree with the death penalty seemed quieter, content to watch the clock silently and count on the judicial system to intervene.

Since the current capital punishment law was enacted in 1981, condemned men wanting at least one last-minute reprieve have consistently been given one. Courts postponed indefinitely all three of the most recently scheduled executions — two at the 11th hour.

It’s just very hard for us to kill someone in this state. The law is narrowly drawn, so only a fraction of people accused of murder can even be considered for the death penalty. Circumstances have to be heinous and considered “aggravated murder.”

Background of current law

“Since 1981, there have been 7,467 homicide cases filed in Washington,” according to a December 2006 report by a subcommittee of the Washington State Bar Association. “Of those, there have been 270 convictions of aggravated murder. A death sentence was not an option in each of these cases, since a sentence of death is not permitted when the defendant is a juvenile or deemed mentally retarded.

“Of the 270 currently filed trial reports, 254 were ‘death eligible,’ meaning that a sentence of death was a sentence option. Of the death-eligible convictions, there have been 79 cases in which the elected prosecutor had filed a death notice. Of the 79 ‘death sought’ cases, a sentence of death was imposed by a jury in 30 cases.” (Some sources list 31 cases, including one defendant who was a juvenile. The U.S. Supreme Court later abolished the death penalty for juveniles.)

Four executions have taken place at the Washington State Penitentiary under the state’s current law. All occurred between 1993 and 2001. Three of the men were “volunteers,” having waived their final appeals.

Regarding appeals overall, the subcommittee report says, “The majority of death sentences imposed have resulted in a (court-ordered) reversal. Nineteen cases have resulted in the conviction and/or the death sentence being reversed. Of these 19 reversals, nearly all have resulted in a sentence of life without the possibility of parole — the only other sentence option for an aggravated murder conviction.”

(The number of reversals now is 18 because of subsequent court actions after the subcommittee report was completed.)

That leaves eight men currently on death row.

The Sunday Union-Bulletin also carried McConn's column, "Capital punishment issue isn't simple."

It seems the older I get, the harder it is to figure some things out.

Issues that were clear to me even a decade or two ago are becoming fuzzy.

There's one in particular I want to discuss since it's been in the news lately.

Capital punishment.

My career as a reporter has required researching various topics, keeping abreast of governmental and social trends, and acquiring a working knowledge of criminal and court processes.

And, being human, I often struggle with what I believe is right, wrong, working or broken.

I regularly reported on events at the Washington State Penitentiary for about 30 years and witnessed three executions in the 1990s.

And:

We at the Union-Bulletin believe it's the perfect opportunity. After reading information we've researched for this series of articles, please talk with your friends and family about capital punishment. And be sure to weigh in by leaving comments on our Web site, writing letters to the editor, and of course notifying your legislative representatives.

Does the death penalty make sense? Is it moral, necessary, OK? Or are we evolving away from state-sanctioned killing, realizing like other sophisticated nations throughout the world that it's wrong and degrading to a civilized society?

Does putting to death an evildoer pave the way for victims' families to heal or do seemingly endless delays lead to further agony?

Your arguments shouldn't just be rooted in ethical conscience, empathy or political ideology, either. Keep in mind that we in this state have executed only one man in nearly half a century who has not been willing to die for his crimes. All the while, we have spent millions of dollars for prosecution and defense of death penalty cases -- far more, frankly, than it would cost to keep the eight men currently on death row locked up for life.

Should we continue capital punishment to send a clear signal that certain types of behavior won't be tolerated? Or does capital punishment make little practical sense in a time of roller-coaster economic conditions and the challenge to fund schools, health care, transportation, law enforcement agencies and traditional crime prevention programs?

Are we taking a valiant, honorable, righteous stand against evil or are we stubbornly trying to keep alive a seldom-carried-out law, which uncontrollable and unpredictable court rulings are just one justice away from killing?

After talking about all this, we may decide the death penalty continues to execute justice.

Or we might find it's outlived its usefulness.

Earlier news from Washington State is here and here.  I'll continue to link to the Union-Bulletin series as individual articles become available.

The Smell Test

That's the title of an editorial in today's Houston Chronicle.  It's subtitled, "Canine witnesses need tighter judicial leashes."

With very little science to back them up, so-called scent lineups have been used extensively to convict defendants in Texas courts.

Dogs sample the odor of a suspect and several other persons and sniff crime-scene evidence. Then they indicate to their handlers through signals whether there's a match. In many law enforcement jurisdictions, officers can use the evidence to justify a search, an arrest, even a criminal charge.

One of the leading practitioners and popularizers of the technique is Fort Bend County Deputy Keith Pikett, who has constructed a lucrative career testifying to the accuracy of his pack of bloodhounds, colorfully tagged with monikers like Columbo, James Bond and Clue. In testimony for prosecutors, Pikett has claimed that his dogs are almost never wrong in their determinations in thousands of cases.

That assertion is under fire in federal court in Houston, as three men wrongfully accused on the basis of Pikett's scent lineups are suing for damages after spending months in jail.

Cedric Johnson and Curvis Bickham were charged with capital murder after Pikett's hounds linked them to a charred gas can found at the scene of a triple killing. Johnson spent 16 months in jail and Bickham eight before all charges were dropped. Another litigant in the federal suit, Ronald Curtis, was incarcerated after the dogs implicated him in a string of cell phone store burglaries. He spent eight months in the slammer before the real thief was arrested.

As a report issued by the Innocence Project of Texas documents, the practice of using of dogs for scent lineups is unreliable and amounts to “junk science.”

And:

If the Texas Forensic Science Commission ever finishes up its delayed investigation of arson findings in the case of executed convict Cameron Todd Willingham, members should start sniffing up the trail of scent lineups.

The Innocence Project of Texas report is available in Adobe .pdf format.

Courthouse News Service distributes, "Cops' 'Scent Lineup' Called Junk Science," by Cameron Langford.

Three men say Houston police and Fort Bend County sheriff's officers used dogs in a "junk science" lineup technique to prosecute them for crimes they did not commit - including capital murder. Fort Bend County Deputy Sheriff Keith Pikett invented the technique in the 1990s, using bloodhounds to "match" crime scene evidence to suspects, according to the federal complaint. 

"Defendant Pikett never tested the dog scent lineups' accuracy, nor did he establish a set of standards under which to conduct the lineups," the plaintiffs say. "Instead, defendant Pikett repeatedly lied under oath about his qualifications, his training and the supposed infallibility of his dog identifications."

Plaintiffs Ronald Curtis, Cedric Johnson and Curvis Bickham say Pikett used the unreliable "dog scent lineup" techniques in thousands of criminal investigations. They say Houston police officers helped Pikett concoct the fraudulent evidence used against them.

Pikett's techniques were exposed as fraudulent in 2006 when his dogs implicated an innocent man in a murder in which the true perpetrator later confessed, the plaintiffs say.

Johnson and Bickham say they were wrongfully accused of capital murder when Houston police swabbed their faces with gauze and gave it to Pikett, whose dogs "confirmed" their scent on evidence from the crime scene.

Curtis says he was wrongfully convicted of robbing stores by Pikett's dog scent lineups, and he spent 3 months in jail before the charges were dismissed.

Earlier coverage begins with this post.

Juvenile Cases Being Heard Now - The Argument Previews

Oral arguments in Sullivan v. Florida will be ending shortly in the U.S. Supreme Court.  Graham v. Florida was heard earlier this morning.  Transcripts of the oral arguments will be available here, later today.

We have preview from some of the best, most experienced Court watchers.  I'd urge readers interested in the case to read each preview in full.

We'll start with the Dean of Supreme Court reporters, Lyle Denniston, who posted, "Inquiring into the juvenile mind," for SCOTUS Blog.

Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed.  The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16.   Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.

The Supreme Court has said repeatedly, as it decided death-penalty cases (often putting limits on such sentences, or ruling them out altogether in some situations, that “death is different.”  That perception has led to a complex jurisprudence of capital punishment, including a flat ban on that penalty for some specific crimes (rape, for example) and some individuals in a specific group (minors and mentally impaired individuals).

The Court, however, has not yet constructed a full constitutional guidebook for long prison sentences, although it has settled on one principle: a sentence for a term of years in prison will be struck down if it is “grossly dispoportionate” to the crime, judged on a case-by-case, rather than across-the-board, basis.  Applying that test, the Court looks at how serious the crime was, how harsh the penalty was, and how a sentence compares to that for other criminals in the same area, and in other areas, for the same crime.

Florida’s First District Court of Appeal has taken that principle to mean that each case must be judged on its own facts, so that a blanket rule is not to be adopted– either for a category of crimes, or a specific group  of criminals.  Thus, for juvenile offenders, it said in one of the cases now before the Supreme Court: “This court declines to implement a per se ban on the sentencing of juveniles to life imprisonment.”  And, in that case, it found that the sentence of life without possibility of parole was not “grossly disproportionate” to the crime.

In reaching that conclusion, the state court started with the proposition that “death is different.”  And that, in brief, provides the test for the Supreme Court as it examines a life prison sentence, with no chance  of release, for a youth who committed a non-homicide crime while still a minor.  But the Court also is being asked to reinforce the cultural notion that “being young is different,” for criminal responsibility.

The Court already has given some indication that it will at least begin its analysis by looking at different scenarios.  Instead of granting review of a single case involving a life term for a minor whose victim was not killed, the Court simultaneously accepted two cases, did not join them for review, and set them for hearing separately. At least at the outset, it appears that two rulings, not one, are likely to emerge.

There are several differences between the two cases: each youth’s age at the time of the crime — one was 13 when he actually received the life term, the other was 17 at the time of the crime and 19 when sentenced; one youth committed multiple crimes as a younger teenager, the older youth had several crimes on his record when given the life sentence after getting lenient treatment after his first crime; one case brought a full review in the lower court of the sentencing issue, the other did not; one is clearly within the Court’s authority to hear the constittional issue, the other has some procedural doubt about it.

No one outside the Court can know which of those differences may have persuaded the Court to grant both cases.  However, that may begin to become clear when the Court hears oral argument.

"Weighing Life in Prison for Youths Who Didn’t Kill," is Adam Liptak's preview from the Sunday New York Times.

Outside the context of the death penalty, the Supreme Court has generally allowed states to decide for themselves what punishments fit what crimes. But the court barred the execution of juvenile offenders in 2005 by a vote of 5 to 4, saying that people under 18 are immature, irresponsible, susceptible to peer pressure and often capable of change.

A ruling extending that reasoning beyond capital cases “could be the Brown v. Board of Education of juvenile law,” said Paolo G. Annino, the director of the Children’s Advocacy Clinic at Florida State University’s law school. Judges, legislators and prosecutors in Florida agree that the state takes an exceptionally tough line on juvenile crime.

But they are deeply divided about when sentences of life without the possibility of release are warranted.

“Sometimes a 15-year-old has a tremendous appreciation for right and wrong,” said State Representative William D. Snyder, a Republican who is chairman of the House’s Criminal and Civil Justice Policy Council. “I think it would be wrong for the Supreme Court to say that it was patently illegal or improper to send a youthful offender to life without parole. At a certain point, juveniles cross the line, and they have to be treated as adults and punished as adults.”

A retired Florida appeals court judge, John R. Blue, did not see it that way. “To lock them up forever seems a little barbaric to me,” Judge Blue said. “You ought to leave them some hope.”

Several factors in combination — some legal, some historical, some cultural — help account for the disproportionate number of juvenile lifers in Florida.

Nina Totenberg files, "High Court Weighs Life Terms For Minors," for NPR.

Joe Sullivan was 13 years old when he was convicted of raping a 72-year-old woman. Two older defendants who had broken into the woman's house with Joe fingered their younger accomplice for the rape, and they got lesser sentences. Joe had a long record of misdemeanors, from stealing a bike to burglary. This, however, was his first felony, and the judge, declaring that the boy before him was "beyond help," sentenced him to life in prison without parole.

Terrance Graham was 16 when he pleaded guilty to attempted robbery of a restaurant in which one of his accomplices hit the restaurant manager over the head with a steel pipe. Graham served one year in jail, then was released on probation. Six months later he was arrested fleeing the scene of an armed home invasion robbery.

The judge revoked his probation, but rejected the four-year prison sentence recommended by the Department of Corrections and instead sentenced Graham, by then 17, to life in prison without parole. "If I can't do anything to help you," said the judge, "then I have to . . . protect the community from your actions."

Both cases are from Florida, which is fitting: Of the 109 juveniles serving life terms for non-homicide offenses across the country, 70 percent are in the Sunshine State.

Four years ago, when the Supreme Court struck down the death penalty for juveniles, the justices said that offenders younger than 18 are "substantially less culpable" because of their "youth and immaturity." The court said juveniles are far more subject to peer pressure, have less impulse control and less ability to see the consequences of their actions. But the court also said that death is different from any other penalty because it is permanent.

Bryan Stevenson, who represents Joe Sullivan, concedes that there is a difference between the death penalty and life without parole. But he says that a life term is different from other prison sentences because it denies the prisoner any hope for a future. "They're just two different kinds of death sentences," he contends. "One is death by execution, the other death by incarceration."

Stevenson notes that the law generally treats 13- and 14- year-olds as so immature that they are not allowed to drive, to marry and even in some states, to get a tattoo.

And he says that juveniles are particularly unable to defend themselves. His client, who maintained his innocence, was represented by a lawyer who filed no appeals and was later disbarred.

Intellectually impaired since his childhood, the then 13-year-old Sullivan tried to help police replicate the tone of voice that the victim said the rapist used, and the victim, who did not see her assailant, said it was "similar."

Although Florida officials refused to comment for this story, 19 states, led by Louisiana, have filed a brief supporting life sentences without parole for juveniles in non-homicide cases. "I disagree that the juvenile crimes are any less culpable than the adult crimes," says Louisiana Attorney General James "Buddy" Caldwell. "These are young criminals. That's what they are, and the ones who are getting these sentences are the worst of those."

Warren Richey wrotes, "Supreme Court case: juvenile offenders serving life in prison," for the Christian Science Monitor.

Life without parole for a juvenile is similar to the imposition of a death sentence, says Sullivan's lawyer, Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala. In both cases, the punishment is disproportionate to the moral culpability of the offender, he says.

"A child's character is still in flux," Mr. Stevenson writes in his brief. "They are unfinished products, human works-in-progress.... Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior."

"Juveniles are more malleable and capable of reform than adults," writes Graham's lawyer, Bryan Gowdy, in his brief. "It is cruel to simply give up on them."

Only two individuals in the United States are serving life prison terms for nonhomicide crimes committed at age 13. Both are in Florida. In addition to Florida, five states have sentenced juveniles to life in prison for nonhomicide crimes: Louisiana, Iowa, California, Nebraska, and South Carolina.

Nationwide, an estimated 2,500 inmates are serving life without parole for crimes committed as juveniles; 109 of those sentences were handed down for nonhomicide crimes.

No national consensus has emerged against the imposition of life-without-parole sentences for juveniles, says Florida Solicitor General Scott Makar. Forty-two states permit such sentences, and 38 of them allow it for nonhomicides, Florida, Graham v. Florida, incarceration, Jonathon Todres, juvenile, life sentence, life without parole, OpEd, Paul Farmer, sentencing, Smith v. Florida, Supreme Court he says.

Mr. Makar acknowledges social science and medical research show that juveniles are developmentally different from adults and thus less culpable for their crimes. But, he says, state lawmakers were aware of these findings when they adopted sentencing laws that include age as a factor.

The AP preview, "High court to look at life in prison for juveniles," is by Mark Sherman.

Joe Sullivan was sent away for life for raping an elderly woman and judged incorrigible though he was only 13 at the time of the attack.

Terrance Graham, implicated in armed robberies when he was 16 and 17, was given a life sentence by a judge who told the teenager he threw his life away.

They didn't kill anyone, but they effectively were sentenced to die in prison.

Life sentences with no chance of parole are rare and harsh for juveniles tried as adults and convicted of crimes less serious than killing. Just over 100 prison inmates in the United States are serving those terms, according to data compiled by opponents of the sentences.

Now the Supreme Court is being asked to say that locking up juveniles and throwing away the key is cruel and unusual — and thus, unconstitutional. Other than in death penalty cases, the justices never before have found that a penalty crossed the cruel-and-unusual line. They will hear arguments Monday.

Graham, now 22, and Sullivan, now 33, are in Florida prisons, which hold more than 70 percent of juvenile defendants locked up for life for nonhomicide crimes. Although their lawyers deny their clients are guilty, the court will consider only whether the sentences are permitted by the Constitution.

The Supreme Court's latest look at how to punish young criminals flows directly from its 4-year-old decision to rule out the death penalty for anyone younger than 18.

In that 2005 case decided by a 5-4 vote, Justice Anthony Kennedy's majority opinion talked about "the lesser culpability of the juvenile offender."

"From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed," Kennedy said.

Yet Kennedy also acknowledged the possibility that for the worst crimes and the worst offenders, "the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person."

Both sides point to the same basic facts — the rare imposition of Draconian prison terms on people so young — to make their point.

"US Supreme Court to examine life behind bars for juveniles," is the AFP filing by Lucile Malandain.

The US Supreme Court will Monday wrestle with the merits of convicting juveniles who have not committed murder to life in prison without the possibility of parole -- a fate shared by 109 US prisoners, almost all of whom are non-white.

The nine justices will consider two separate cases to determine whether handing out sentences that effectively leave a juvenile to die in prison violates the US Constitution's Eighth Amendment, which prohibits cruel and unusual punishment.

CBS News Legal Analyst Andrew Cohen writes, "Young Lives, Long Sentences," for Court Watch.

It costs a minimum of $20,000 per year to incarcerate someone in America these days. In Sullivan's case, if he lives to be 75, he will have been in prison for 60 years. That's at least $1.2 million Florida will have spent on him by the time he dies an old man in a jail cell. Multiply that by 75 (roughly the number of other juveniles so sentenced in Florida) and the cost for these prisoners alone over their lifetime would be over $100 million.

And don't forget — these 77 juvenile offenders are just a small percentage of the state's overall prison population.

It's unlikely that the economic case against automatic life sentences will garner much time or attention during oral argument in these two cases. The Justices may or may not countermand Florida's sentencing scheme on Eighth Amendment grounds, but they certainly won't meddle with the state's financial commitment to its prison system absent a showing that prisoners there are being denied basic human rights due to overcrowding. That's happened in California — but so far not in Florida.

No, in Florida, the question again is whether young people have constitutional protections against punishment which adults do not.

"Kids Locked Up for Life," is Vince Beiser's post at the Atlantic.

Life without parole for juveniles caught on during the hysteria over crack and youth gangs in the 1980s, part of a wave of tough-on-crime legislation that has quadrupled America's prison population to a record-shattering 2.3 million inmates. Almost every state as well as the federal government permits it. But now, with crime rates far lower, that punishment is coming under fire from a growing number of lawmakers, jurists, activists and even crime victims. Today the debate reaches a head as the Supreme Court takes up Graham's case and another, involving Joe Sullivan, who was convicted of burglary and rape at age 13.

Earlier coverage begins with the preceding post.

Juvenile Cases Being Heard Now - The OpEds

"A 2d chance at freedom for juvenile offenders," is the title of Paul Farmer's OpEd in today's Boston Globe.  Farmer, a medical doctor, is a professor of social medicine in the Department of Global Health and Social Medicine at Harvard Medical Schoo.   He is the author of Pathologies of Power.

As I have seen in Haiti, in Rwanda, and in the other countries where I have lived - and in the prisons, squatter settlements, and cities, rich and poor, in which I’ve worked - people share certain innate human values. One of them is that children should be afforded greater care, protection, and forgiveness.

And when I return to the United States, I am reminded that a group of our children - some of them as young as 13 - are separated from their families and communities for the rest of their lives, even if they are later rehabilitated and no longer deemed to pose a threat to others.

Article 37 of the UN Convention on the Rights of the Child states that children must not be subjected to torture, inhuman or degrading treatment or punishments, including capital punishment or life imprisonment without the possibility of release. Only two nations in the world have not ratified this convention: Somalia and the United States. It is noteworthy that sentences of life without parole for juveniles were uncommon in the United States before the 1990s, a period of fear about a potential rise in juvenile crime that was based on data later proven false.

The United States stands apart from its European allies in perpetuating this violation of human rights. In Italy, the maximum sentence for a person under 18 for any crime is 24 years. In Germany, it is 10 years. In England and Wales, judges must impose a sentence that is roughly half the term that an adult would be given in the same circumstances. The English law is particularly instructive, given the historic ties between the two countries and the fact that American law is largely derived from England’s. In fact, the Eighth Amendment traces its roots to the Magna Carta.

There are those who argue that international laws and norms should have no bearing on how the United States decides to dispense justice. But having treated thousands of children all over the world, I can say with confidence that American children are not more vicious, less human, or less deserving of mercy and compassion than children in any other country. Every other nation in the world finds ways to hold young people accountable for their actions without sentencing them to languish in prison until they die. The United States must do the same for its children.

Jonathon Todres wrote the OpEd, "Is there no redemption for children?," for the Friday edition of the Atlanta Journal-Constitution.  Todres teaches law at Georgia State University.

What is striking about these cases, Sullivan v. Florida and Graham v. Florida, is they entail the permanent denial of freedom for juveniles who, though they committed serious crimes, did not commit homicides. Such sentences for juveniles express more than just the view that these children are beyond rehabilitation.

In effect, they are a societal admission that we do not believe we are capable of teaching children to do better.

When we sentence a 13-year-old or 17-year-old to life in prison without any chance of parole, we not only convey our views on the child’s actions, we also make a powerful statement about ourselves.

Such a penalty, when given to a child, says we do not believe that child can ever change. And because it is our job as adults to mentor children, we are conceding that we don’t have confidence as a society that we will provide the necessary guidance to ensure that child becomes a productive member of society.

Why do we have such little faith in ourselves, and our children?

Children today face high expectations. For example, zero tolerance policies permit no mistakes.

Yet neuroscience and psychological research tells us what parents and teachers already know from their day-to-day care of children — that is, children’s brains are wired differently and sometimes they make poor choices.

The choices made by Sullivan and Graham were terrible ones, for which there must be consequences. But have we lost all faith in our ability to steer kids in the right direction?

Currently, our punishment framework is a discouraging one-way ratchet. Even when children do not break the law, we do not allow them to participate fully in society.

No matter how well a child behaves, how mature and thoughtful his or her decision-making, we do not allow them to vote, enter into contracts, serve on juries, drink alcohol, drive a car below a certain age or do any number of other things adults can do. We do that because we do not believe they have reached maturity.

Yet when children make bad decisions and commit bad acts, we insist they were mature enough that they should suffer adult consequences. The message is clear to children: There are no rewards for good behavior, but there are serious punishments for bad behavior.

We need to rethink this unbalanced stance.

The preceding post contained editorials and a link to earlier coverage; next, the oral argument previews.

Juvenile Cases Being Heard Now - The Editorials

The Court has heard Graham v. Florida earlier this morning, and it is hearing Sullivan v. Florida at this time.  I'll break out coverage into three posts.  This one will contain editorials, the next post OpEds, and the third post will contain oral argument previews.  Transcripts of the oral arguments will be available here, later today.

"Imprisoning a Child for Life," is the title of an editorial in today's New York Times.

The United States could be the only nation in the world where a 13-year-old child can be sentenced to life in prison without possibility of parole, even for crimes that do not include murder. This grim distinction should trouble Americans deeply, as should all of the barbaric sentencing policies for children that this country embraces but that most of the world has abandoned.

The Supreme Court must keep the international standard in mind when it hears arguments on Monday in Graham v. Florida and Sullivan v. Florida. The petitioners in both argue that sentencing children to life without the possibility of parole for a nonhomicide violates the Eighth Amendment prohibition against cruel and unusual punishment.

The court came down on the right side of this issue in 2005 when it ruled that children who commit crimes before the age of 18 should not be subject to the death penalty. The decision correctly pointed out that juveniles were less culpable because they lacked maturity, were vulnerable to peer pressure and had personalities that were still being formed.

Writing for the majority, Justice Anthony Kennedy said the practice of executing 16- and 17-year-olds violated the Eighth Amendment, conflicted with “evolving standards of decency” and isolated the United States from the rest of the world.

The Roper decision took scores of juveniles off death row. It also threw a spotlight onto state policies under which young juveniles were increasingly being tried in adult courts and sentenced to adult jails, often for nonviolent crimes.

The practice is even more troubling because it is arbitrary. Children who commit nonviolent crimes like theft and burglary are just as likely to be shipped off to adult courts as children who commit serious violent crimes. And the process is racially freighted, with black and Latino children more likely to be sent to adult courts than white children who commit comparable crimes.

"The editorial, "Locked away forever," appears in today's Washington Post.

Only 106 prisoners -- 77 of them in Florida -- have been given life without parole for offenses that did not involve a homicide or attempted homicide. Only two people -- including Mr. Sullivan -- have been handed this guaranteed life sentence for a non-homicide committed at age 13.

Most states have not consciously sanctioned imposition of mandatory life terms for juveniles. Instead, these sentences are the warped confluence of an increasing number of prosecutions in which juveniles are charged as adults and the increasing number of crimes that carry sentences of life without parole. The punishments fail to take into account the neurological, psychological and developmental differences that distinguish juveniles from mature adults.

Mr. Sullivan's lawyers make a compelling case that the frequent rejection of such draconian sentences by lawmakers, juries and judges shows "the country's radical repudiation of life without parole for children of this age." The Supreme Court cited similar trends and statistics in a 2007 case in which it ruled that the death penalty was unconstitutional in juvenile cases.

A brief filed in support of Mr. Sullivan by, among others, actor-director Charles S. Dutton and former Wyoming senator Alan K. Simpson, a Republican, makes a powerful case for giving juveniles at least a shot at freedom. Both of these men experienced serious trouble with the law in their early years: Mr. Dutton, who grew up in a housing project in Baltimore, spent time in juvenile facilities and later years in prison for stabbing a man to death and for assaulting a prison guard. Mr. Simpson recalls taking part in arson and other crimes. These men's ascents to the tops of their professions could not have been predicted by their often violent childhoods.

Juveniles who commit serious offenses should face serious penalties. A life sentence in some circumstances may be appropriate. But that sentence should carry with it the opportunity for a second chance.

On Saturday, the Los Angeles Times ran the editorial, "Cruel life in prison."

The U.S. Supreme Court recognized in 2005 that it is unconstitutionally cruel to execute people for crimes committed before they were 18, because youths lack the sense of responsibility that society requires of adults. Their personalities are not yet fixed; they are more susceptible to the negative influences of other people or events. Society's understandable demand for retribution is necessarily blunted when the perpetrator of a crime is a juvenile. Likewise, the threat of a stiff penalty cannot have the same deterrent effect on a youth as it does on an adult; young people have too little experience to fully grasp the consequences of their actions.

The court on Monday will hear arguments in the cases of two Floridians sentenced, in effect, to eventually die in prison because they lack even the slightest chance of release on parole. The same reasoning that bars execution for crimes committed in youth should also block such sentences of life without hope for young people, at the very least for those whose crimes fall short of murder.

Terrance Jamar Graham was 16 when he joined two others in a failed attempt to rob a restaurant; a year later, he was on probation when he participated in a home invasion robbery. His crimes were brutal; he was a repeat offender; and he deserved to be punished, to be imprisoned, and even, perhaps, to be sentenced to life. But not without a chance, in the future, for a court or parole board to review his growth and development and consider another chance at parole.

There are, to be sure, youths who mature earlier than others, just as there are adults who never fully mature. But there must be a line, and age 18 is the point at which society determines people are ready to sign contracts, marry without parental consent, serve on juries and be drafted into the military.

Society can and should countenance a hopeless existence in prison for adult perpetrators. But not for juveniles. The U.S. is, for now, the only nation that has not banned life in prison without parole for juvenile offenders, and more than 2,000 are serving such terms behind bars.

Earlier coverage of the issue begins with this post; next, the OpEd.

John Bradley's OpEd

The OpEd, "Panel on forensic science to establish ground rules," by John Bradley appeared in the Saturday Houston Chronicle.

I am John Bradley, the elected district attorney in Williamson County and the new presiding officer of the nine-member Texas Forensic Science Commission. I am writing to introduce myself, explain the purpose of the commission and inform you about the work the commission now faces.

The commission wants to reassure you that the Cameron Todd Willingham case, involving a study of the application of the forensic science of arson, will be completed. However, pending the release of a final report by the commission, you should be skeptical of media reports, personal pronouncements and editorials on that case. Those with agendas separate from the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case. The commission can only ask that the public be patient and permit the commission to apply a disciplined, scientific approach to the investigation. That kind of hard work takes time and careful deliberation, and is not likely to result in a simplistic report.

You also need to know that the commission was created to determine only whether there was negligence or misconduct by an accredited laboratory conducting forensic analyses of certain kinds of evidence in specific cases. The commission does not decide whether persons are guilty or innocent of criminal offenses. The commission also is not a forum for the debate of social issues, such as the appropriateness of the death penalty. Such discussions are better suited for our court system and the legislative process.

The commission was created in 2005 but still is in its infancy. Actual work by the commission began only two years ago. After several weeks of educating myself about the brief history of the commission, I have learned there is still significant work to be done before decisions by the commission can be treated as authoritative.

First, no state agency should operate without clear written policies and procedures. Those policies and procedures help public servants apply consistent standards and avoid accusations of making up the rules as they go along. The commission does not have any written policies and procedures; there are no consistent standards currently being applied to the work of the commission. For example, there are no definitions of what constitutes negligence or misconduct by a forensic scientist. There is not even a written standard for deciding what cases should be accepted for review or how the commission reviews, investigates and draws conclusions in such cases. For a state agency with a mission to improve the application of forensic science, the absence of such definitions and standards is unacceptable. And that is why I have reached out to the director of the Office of Court Administration of the judicial branch for assistance in drafting policies and procedures to be adopted by the commission.

Second, any investigative process should be handled under professional investigative standards that maintain the highest level of integrity. Currently, the commission simply delegates an investigation to a person outside the commission through a competitive bid process. Once an investigator is assigned to a case, there is no established process for and oversight of the investigation, leaving the complainant, the person subject to investigation and the commission subject to accusations of inappropriate outside influence and the damaging effects of the premature release of sensitive information; these gaps in process could create doubts about the integrity of final reports even before they are issued. At my request, the director of the Department of Public Safety has offered the assistance of the Texas Rangers in drafting investigative standards that will reassure you of the integrity of commission investigations.

And:

Finally, the commission should also have a positive role in the development of best practices in the various fields of forensic science. Through better training, the commission can help raise the standards for the application of forensic science in our courtrooms. But there is nothing in the law authorizing such work by the commission.

I will be asking the Legislature to expand the legal authority of the commission to provide such leadership.

This will not all be done overnight. Working together, the commission may need several years to complete all of these goals. But, I can assure you that the members of the commission take their appointments seriously and are excited to be involved in the advancement of forensic science in Texas courts. You can do your part in supporting this process by exercising patience and telling anyone who will listen that good work takes time.

Earlier coverage of Bradley and the Willingham investigation begins with the preceding post.

More on John Bradley

"Surprises under Williamson DA's image," is the title of Miguel Liscano's Austin American-Statesman report.  It appeared in the Sunday edition.

Through 22 years as a prosecutor, the past eight as Williamson County district attorney, Bradley has amassed convictions and accolades, developing a tough-on-crime reputation.

He also hasn't shied from controversy.

His recent appointment as chairman of the Texas Forensic Science Commission will probably bring more.

Gov. Rick Perry shook up the commission this fall and thrust Bradley into the national spotlight at a time when the panel is investigating a high-profile death penalty case.

Critics have charged that Perry's four new appointments to the board were aimed at delaying and thwarting the commission's investigation into whether faulty evidence was used to convict Cameron Todd Willingham of setting a fire that killed his three daughters. Since Willingham's execution in 2004, several studies have found major flaws in the arson investigation that led to Willingham's conviction.

Bradley, a sometimes polarizing public figure known for seeking maximum punishments for violent criminals, has already faced questions about whether he will approach the matter fairly.

On Tuesday, he'll have to answer to state lawmakers, when the Senate Criminal Justice Committee holds a hearing to question Bradley's plans for the commission.

Austin lawyer Keith Hampton, vice president of the Texas Criminal Defense Lawyers Association, said he wonders, knowing Bradley's background as a prosecutor, whether Perry had a role in mind for Bradley.

"My only concern with Bradley is not his thoroughness, but the color of the lens through which he views evidence," Hampton said. "Is the case for innocence for Willingham starting out as a neutral? Or is it weighted some way?"

Bradley, who like Perry is a Republican, insists that he will approach his work on the panel "without political favor."

"When you're dealing with controversial issues, you cannot expect to please everybody," he said. "But I will always try to at least convince all of those people that the process itself is fair."

As district attorney, the tall, slender Bradley seeks the limelight, running a solo public relations machine, crafting and e-mailing frequent news releases touting convictions and lengthy sentences. He works aggressively and wields considerable influence, sometimes pursuing criminal charges when law enforcement agencies balk.

And:

His office prosecutes about 2,000 cases a year, and about 50 receive a sentence of 20 years or more, he said.

There is no single study available comparing lengths of sentences for similar crimes or cases disposed to probation among counties, said Tony Fabelo, director of research for the Justice Center of the Council of State Governments.

Bradley's record shows that his tough-on-crime reputation is more nuanced than his news releases might suggest, balanced partly by his work to find alternatives to jail for those with mental disabilities and efforts to show discretion with young or first offenders.

"If your client has a terrible criminal history, they're not going to cut you slack," Hunt said. "That's only reasonable. If your client is young and doesn't have that kind of criminal history and appears to be someone who is redeemable, then the prosecutors and the judges up there will cut them some slack."

Bradley currently leads the Texas Department of Criminal Justice Advisory Committee on Offenders with Medical or Mental Impairments. Perry appointed him to the panel in 2004. The committee brings together state agencies to find ways to divert offenders with mental illness out of the criminal justice system. He sits on a similar Williamson County panel with the same goal.

During this year's legislative session, he also pushed for a bill that reduced the punishment for capital murder by a juvenile from life without parole to life with parole, after 40 years. It became law.

In the courtroom, defense attorney Bob Phillips said, Bradley's office is consistent.

"He's fair in that he's predictably severe," Phillips said.

The Dallas Morning News carried, "Texas forensic science agency's new chief calls for changes as arson inquiry continues," by Terrence Stutz in the Saturday edition.

The new chairman of the Texas Forensic Science Commission has called for several key changes at the agency, including new confidentiality requirements, to ensure that its future reviews of criminal cases are credible.

John Bradley, the district attorney in Williamson County and chairman of the commission, also promised that the panel will apply a "disciplined, scientific approach" to its continuing inquiry into a flawed arson investigation that led to the 2004 execution of Cameron Todd Willingham of Corsicana.

"Those with agendas separate from the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case," Bradley said in a commentary sent to newspapers this week.

The prosecutor also pointed out that the commission was created in 2005 "to determine only whether there was negligence or misconduct by an accredited laboratory" conducting forensic analyses of evidence in specific cases.

"The commission does not decide whether persons are guilty or innocent of criminal offenses," he said.

A spokeswoman for the commission said Bradley would not speak to a reporter to elaborate, pending his planned testimony next week to a state Senate committee.

Bradley said he will be seeking changes at the agency to improve its operations, including new written policies and procedures, investigative standards to guide its work and new requirements to keep information confidential until a final decision is rendered.

Implementing such changes could take months, and it's unclear how that would affect the commission's work in the Willingham case.

"Most state agencies with investigative and deliberate functions are protected by laws designed to keep such information confidential until a final decision is released," he said. "Unfortunately, the law creating the commission does not include those protections."

Bradley said he would seek advice from the Attorney General's Office on how the commission can have tighter control over its functions and protect against "interference and improper outside influences."

That suggestion drew a cool reception Friday from the Freedom of Information Foundation of Texas, which pointed out that the Legislature had a choice whether to make the information public or private when it passed the law setting up the agency.

"We prefer to think they wanted the public's business to be conducted in public," said Keith Elkins, executive director of the foundation.

"If Mr. Bradley wants to have the public's business conducted in secret, the appropriate thing would be to go to the Legislature to ask for a change rather than going around the legislative process and trying to get it changed by the attorney general," he said.

Bradley also said he will seek additional resources from the Legislature in the next session "so the commission can grow into a mature, well-respected entity." He noted that the agency now has one employee to handle its administrative, legal and public contract work.

"Case Open," by Emily Ramshaw and Matt Stiles is posted at the Texas Tribune.

If you want closure on questions of Cameron Todd Willingham's guilt or innocence, get comfortable. 

The new chair of the Texas Forensic Science Commission says the board doesn't yet have the rules, staff or resources to be investigating allegations of faulty science in criminal cases -- including the high profile arson-murder case that led to Willingham's execution.

Williamson County District Attorney John Bradley, who Gov. Rick Perry appointed chair two days before a now-canceled hearing on evidence in the Willingham case, says the commission will stick to its mission – analyzing forensic science mishaps – from here on out, as opposed to leaving the door open for a death penalty debate.

Though the commission will still investigate the Willingham evidence, which includes testimony from arson experts critical of the arson investigation methods, Bradley said his first priority is turning the commission into a professional investigating arm. Right now, he said, the body has no formal rules, a measly budget and a single staffer – hardly the resources to make investigative recommendations that carry weight.

"The commission is going to conclude the Willingham case and complete the report as it’s required to do. But it needs to be done in a way we can trust it," said Bradley, who will testify before the Senate Criminal Justice Committee on Tuesday. "…If [Perry] knew what I know, there were very good reasons for making changes" on the commission.

Critics of the Willingham execution – and of Perry’s decision to replace commission chair Sam Bassett and one other member just days before the anticipated hearing on it – are likely to see Bradley’s recommendations as a stall tactic.

The governor, who staunchly believes Willingham set the 1991 house fire that killed his three daughters, refused to halt the 2004 execution after an arson expert warned the investigation appeared flawed. The hearing that was derailed by Perry’s new appointments featured a prominent arson expert who found no evidence Willingham set the fire, and said arson techniques used to convict him were outdated. Perry has since replaced two more commission members.

One of the lawmakers who voted for the nine-member commission, established in 2005 but not funded until 2007, said this idea of it being a ruleless, unguided entity are false.

"The commission members can determine how to do their business, within reason, but the scope and purview of the commission is clearly set out in legislation we passed more than four years ago," said State Sen. Rodney Ellis, D-Houston, who chairs the board of directors of the New York-based Innocence Project, which brought the Willingham complaint to the commission. "Mr. Bradley’s priority should be carrying out the commission’s mandate, not finding ways to delay investigations that can help ensure quality forensic analysis in cases across the state."

The Willingham case is one of three the commission has considered, and is the farthest along.

Earlier coverage of Bradley and the Willingham investigation is here.  The Senate Criminal Justice Committee will hear from Bradley tomorrow at a hearing in the Texas State Capitol.

All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Delaware PDs See Case Loads Reduced

"State's public defenders see fewer cases," is the title of J.L. Miller's report in the Wilmington News Journal.

The Public Defender's Office won't seek a budget increase this year, thanks to a puzzling trend in the number of cases the agency handles.

Public Defender Brendan O'Neill said in his agency's budget hearing Thursday that there has been "a very slight downward trend" in the number of cases in which cash-strapped defendants require representation by his lawyers.

"At this point it looks like we're not in a growth industry, and that's a good thing," O'Neill said. He said he expects his office to handle around 49,000 cases this fiscal year and the same number the following year.

But O'Neill, whose office employs 71 assistant public defenders, was at a loss to explain why the caseload hasn't gone up. Conventional wisdom would be that crime goes up in an economic downturn, and thus more people would require representation in court.

"We're really not sure," O'Neill said in response to a question by Ann Visalli, head of the Office of Management and Budget. "It's a puzzle to us."

Regardless of the cause, the trend means the office can hold its budget request steady at $14.6 million -- at a time when declining state revenues make larger budgets nearly impossible.

About 94 percent of the office's budget is in personnel costs, making budget cuts more difficult than in some other agencies. That's complicated by the fact that in order to comply with the Constitution, the state must provide representation to defendants facing imprisonment if they cannot afford an attorney.

"We really can't get stretched too much further," O'Neill said.

As it is, the agency's attorneys have their work cut out for them. In Superior Court, assistant public defenders are averaging 220 cases a year. The American Bar Association's optimal caseload standard is 150 cases.

The situation is much the same in Family Court, where the lawyers handle 408 cases a year. The ABA standard is 200.

And in Court of Common Pleas, the agency's lawyers handle 904 cases a year. The ABA standard is 400.

"This is significantly above what the ABA standards call for," O'Neill said. However, he added that this does not put the state "at risk of any malpractice or any kind of liability."

Related posts are in the indigent defense category index.

Massachusetts AG Criticized for Wood v. Allen Position

"Death penalty foes rip Coakley for signing brief," is the title of Matt Viser's report in today's Boston Globe. The amicus brief is here, in Adobe .pdf format.

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts. Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed,’’ said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty. “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief.’’

Many of the other attorneys general who signed the brief were from more conservative states in the South and Midwest. All but three states that signed it - Iowa, Massachusetts, and New Mexico - allow the death penalty.

“At the end of the day, if the state of Alabama wins, this kid with an IQ in the 60s will be executed,’’ said Bright, who teaches at Yale and Georgetown law schools.

Coakley and her aides argue that her signing the brief had nothing to do with the death penalty and that they were purely concerned with the legal implications of allowing federal courts more discretion in reviewing decisions that state courts have already made, which Coakley asserts would take additional time, money, and resources.

Coakley said that the brief she signed, though it is attached to a death penalty case, is limited in scope and is designed to address only the question of what role federal courts should have in reviewing state court decisions. The brief makes no mention of capital punishment.

“This, from our point of view, is unrelated to a death penalty or any of the issues around that,’’ Coakley said. “A real concern was that we get a clear determination from the Supreme Court on what is the standard of review of a federal court looking at a state court decision.’’

The case illustrates the tension between Coakley’s role as the state’s top law enforcement official and her political ambition. Her involvement in the case could have political implications in a highly charged Senate race in which her past support for the death penalty has already come under fire.

And:

At issue is the interpretation of the Antiterrorism and Effective Death Penalty Act of 1996, which in most instances bars federal reconsideration of legal and factual issues on which state courts have already ruled. A Supreme Court ruling in Alabama’s favor could result in federal courts having to defer to state judgments in many instances. Death penalty cases from the states are among those frequently challenged in federal court.

“If you’re concerned about the death penalty, then you have to be concerned about people being able to have their case reviewed in federal court,’’ said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which opposes capital punishment. “The error rate, in my judgment, is shockingly high, so high that you want federal courts to be able to review these cases without a lot of restrictions.’’

In this case, Stevenson added, “Mr. Wood will be executed in a matter of weeks . . . It is not theoretical in Alabama.’’

In their brief, Coakley, and other states that signed onto it argued that the decisions already made by state courts should not be overridden.

“States have an obligation to protect the finality of the judgments entered by their courts - an obligation that is even more compelling when it involves criminal judgments,’’ their brief reads. “Undoing finality in habeas corpus litigation in the federal courts can undermine the states’ interests in ensuring safety, deterring crime, and rehabilitating criminal offenders.’’

Otherwise, Massachusetts and every other state would have to go to federal court and defend what it did in state courts, the attorneys general argue.

Over the past year, there were about 100 new federal cases challenging state criminal convictions in Massachusetts, according to the attorney general’s office.

Coakley said those numbers would probably rise if the Supreme Court rules against the states.

Tracey Maclin, a law professor at Boston University, said it “makes perfect sense’’ for Coakley to weigh in on this case.

“I’m against the death penalty, but it would be bordering on incompetence for an attorney general not to sign this case,’’ he said. “If the Supreme Court makes it harder, that’s more work that they would have to do. Unless she wants to make more work for her office, she has a vested interest.’’

Earlier coverage of Wood v. Allen begins here.

U.S. Lawmaker Pushes Death Penalty Appeals Overhaul

That's the title of a news report from AFP, via Google News.  LINK

A US lawmaker has introduced legislation to end "inhumane and unconstitutional" rules that prevent death row inmates from presenting newly discovered evidence to dispute their guilt.

"We've got folks on death row with no opportunity to show compelling new evidence of innocence," Democratic Representative Hank Johnson of Georgia said upon unveiling his proposal this week.

Johnson's measure, hailed by human rights group Amnesty International, would allow federal courts to give death row prisoners more opportunities to present newly discovered evidence that demonstrates probable innocence.

It would also let inmates file more habeas corpus appeals challenging their detention if and only if they offer new evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant a habeas corpus petition, the case would likely return to the court where it was first tried for a retrial, supporters of the legislation say.

Underlining that current restrictions on appeals may lead to innocent people being executed, Johnson warned: "The status quo is inhumane and unconstitutional."

The bill is H.R. 3968, the Effective Death Penalty Appeals Act.  You can view the text via the Library of Congress.  The bill is co-sponsored by: Constitution Subcommittee Chairman Jerrold Nadler (D-NY), Judiciary Committee Chairman John Conyers [D-MI], Crime Subcommittee Chairman Bobby Scott [D-VA], Rep. Anthony Weiner [D-NY] , Rep. Sheila Jackson Lee [D-TX], and Ways and Means Subcommittee Chairman John Lewis [D-GA]

Congressman Johnson's office has issued a news release, "Hank: Bill to protect innocent Americans from execution."

Under current law, an inmate on death row can be stranded with no procedural options to appeal a conviction, even if there is compelling new evidence that he or she is innocent.

The Effective Death Penalty Appeals Act would:

(1) empower federal courts to grant habeas corpus relief for a prisoner on death row who presents newly discovered evidence that demonstrates probable innocence; and

(2) allow prisoners on death row to file successive federal habeas petitions if, and only if, they present newly discovered evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant such a habeas corpus petition, the case would likely return to its original jurisdiction for retrial.

“We’ve got folks on death row with no opportunity to show compelling new evidence of innocence,” said Johnson, Chairman of the Court and Competition Policy Subcommittee. “The status quo is inhumane and unconstitutional.”

“The Effective Death Penalty Appeals Act would prevent the execution of possibly innocent people where there is new evidence of innocence,” said Constitution Subcommittee Chairman Nadler. “If the death penalty remains the law of the land, then, at the very least, our legal system must never ignore evidence that could exonerate the accused. Death is different from all other penalties; it is irreversible. Those on death row must have the opportunity to bring forward all of the available evidence.”

“Unfortunately, errors in death penalty cases are not discovered until after the defendant is already incarcerated,” said Judiciary Committee Chairman Conyers. “In some terrible cases, the system may well be allowing some innocent defendants to be executed.”

“We have learned in Georgia,” said Rep. Lewis, “from the injustice of cases like that of Troy Anthony Davis, where legal technicalities prohibit new, important evidence from being heard. The value of a human life overrides any inconvenience of law. We have a duty and an obligation to ensure that those who may be innocent have every opportunity to be heard.”

“When it comes to a human life, the courts must always be able to take a closer look at evidence that supports claims of innocence,” said Johnson. “We should never put someone to death if there are innumerable doubts or omissions.”

And:

Two cases – one present, one past – demonstrate the necessity of this legislation.

Today, Troy Anthony Davis sits on death row in Georgia. He was convicted of murder in 1991, but nine of eleven eyewitnesses have subsequently recanted their testimony. Because Davis has exhausted his appeals at the state level and federal law offers him no path to relief, he is unable to present the new evidence that might exonerate him. 

The Supreme Court has relied upon its original jurisdiction to order the U.S. District Court for the Southern District of Georgia to grant Mr. Davis an evidentiary hearing.  However, the law in its current form does not necessarily give the District Court authority to grant Mr. Davis’ habeas petition, even if they find that the new evidence supports his innocence claim.

And:

In 2004, Cameron Willingham was executed by the State of Texas for the murder of his children by arson. After Willingham’s conviction, a widely-respected forensics expert reviewed the case and concluded in a report that there was “no evidence of arson.”  The report was sent to Governor Rick Perry and the Texas Board of Pardons and Paroles with Willingham's appeal for clemency. Willingham was executed anyway. Subsequent investigations have cast even more doubt upon the conviction. Newly discovered evidence never got the full hearing it deserved.

Related articles are in the federal legislation index.  Earlier coverage of Troy Davis is here; Todd Willingham, here.

John Bradley on the Forensic Science Commission

"Fired Up," is the title of Mary Alice Robbins' report for Texas Lawyer.  It gives us the most detailed look at John Bradley's plans as the new Chairman of the Texas Forensic Science Commission.

The prosecutor heading a commission at the center of a political firestorm will recommend ways to improve the panel’s operations at a Senate Criminal Justice Committee hearing Nov. 10. The controversy ignited in September when Gov. Rick Perry abruptly replaced two commission members two days before they were to review an arson expert’s report in the case of Cameron Todd Willingham, a death-row inmate executed in 2004 after Perry declined to grant him a 30-day reprieve.

Anti-death penalty activists have contended that Willingham was innocent and that Perry replaced the commission members to block a review of a report questioning whether the fire Willingham was accused of starting was arson.

Williamson County District Attorney John Bradley, the new chairman of the Texas Forensic Science commission, says he will recommend, among other things at the Senate committee hearing, that during an ongoing investigation, the commission should be allowed to meet in private to discuss the matter being investigated and that reports to the commission on an investigation be withheld from public release until the commission concludes its deliberations.

“It’s not a good idea to conduct an investigation in a public forum,” Bradley says.

Other agencies that have an investigative function, including those in law enforcement, are protected from the Texas Open Meetings Act and the Public Information Act during their deliberations, Bradley says. When investigations are conducted in public, it is difficult to protect them from outside influences, he says.

Bradley says he also will suggest that commission members be appointed for three-year terms, not the two years currently provided under Texas Code of Criminal Procedure Article 38.01, so that there is time to train members to carry out the commission’s mission.

“The commission’s work is focused on investigating and then deliberating on allegations of negligence and misconduct in the forensic science field,” Bradley says.

Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.

One of the things the commission needs to do, Bradley says, is to develop and adopt written policies and procedures, which it has never had.

But Bradley’s proposed changes come as the commission’s former chairman says the governor replaced him when the commission started looking into the science that helped convict a man of starting a fire that killed his three young daughters.

Perry appointed Bradley to the commission and named him chairman on Sept. 30 — two days before the commission was scheduled to review the findings of an arson expert hired by the commission to evaluate the methods and procedures used by fire investigators in the arson case against Willingham. The Willingham case is one of three the commission has looked into, but it is the first one to reach the report stage.

And:

State Sen. John Whitmire, D-Houston, chairs the criminal justice committee and was a sponsor of H.B. 1068, the 2005 measure that created the Texas Forensic Science Commission. Whitmire, of counsel at Locke Lord Bissell & Liddell, says he will ask Bradley at the Nov. 10 hearing for a status report on the commission and for Bradley’s assessment of the scope and parameters of the commission’s authority.

But Whitmire says he will also ask Bradley, “Oh, by the way, are you going to hear from Beyler?”

Whitmire says he is not troubled by Perry’s replacement of the commission members.

“My position is: He is the governor,” Whitmire says. “He makes appointments.”

But Whitmire says the timing of Perry’s decision to replace these commission members was unfortunate.

“If he had made the decision a month earlier, this situation wouldn’t be the way it is,” Whitmire says.

Whitmire says the situation does not prevent a new set of members from doing their work, which he says is “critical.” He says the important thing is to learn from the forensics and move forward.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Execution

Texas carried out its 20th execution of 2009, tonight in Huntsville.  It was the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

AP's Michael Graczyk files, "Texas man executed for beating death," via Google News.

A man convicted of fatally beating and shooting an East Texas man during a burglary almost 12 years ago was executed Thursday, in a case that gained notoriety because jurors may have consulted a Bible to justify his death sentence.

Khristian Oliver, 32, was pronounced dead by lethal injection at 6:18 p.m.

He told his victim's children, who watched through a window a few feet away, that he wished them the best. After telling his parents, watching through an adjacent window, that he loved them, he started reciting the 23rd Psalm, getting through several verses before the drugs took effect.

And:

The 5th U.S. Circuit Court of Appeals said evidence was contradictory on whether jurors consulted the Bible before or after deliberations and that several jurors testified that the Bible "was not a focus of their discussions."

Houston Chronicle columnist Lisa Gray's must-read column, "Life, death and the prodigal son," appeared in today's edition.

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

According to TDCJ, five additional executions are scheduled in Texas during 2009.  The next scheduled execution is November 10, followed by execution dates on the 17th, 18th, and 19th.  The final Texas execution of 2009 is set for December 3rd.  Four execution dates have already been set in the state for 2010. 

Kansas Abolition Debate Front & Center for 2010

The Lawrence Journal-World reports, "Death penalty repeal set for debate next session."  It's written by Scott Rothschild.

A proposal to abolish the Kansas death penalty will be considered by lawmakers during the second week of the 2010 legislative session, the committee chair said Wednesday.

State Sen. Thomas “Tim” Owens, R-Overland Park, and chair of the Senate Judiciary Committee, said hearings on the proposal will start Jan. 19.

“We are going to have a complete and thorough discussion of death penalty abolition,” Owens said.

Efforts to repeal the death penalty failed in the Senate during the last legislative session. Some opposed the repeal while others said they were concerned that the way the legislation was written it would have also done away with the life-without-parole sentence for murder.

Kansas has not executed anyone since 1965.

Coverage of Kansas' 2009 legislative debate begins with this post.

Ohio

Andrew Welsh-Huggins has filed, "Ohio GOP lawmakers: Execution process can be fixed," for AP.  It's available via Google News and the New York Times.

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system.

The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process. Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday.

Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward. But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice.

"I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom.

And:

The state said in a court filing last month it was having a hard time finding medical personnel willing to consult about injection because of professional and ethical rules. The rules — which generally prohibit doctors, nurses and others from involvement in capital punishment — are deterring such personnel from speaking publicly or privately about alternatives to the state's lethal injection process.

Among the changes the state is considering: injecting lethal drugs into inmates' bone marrow or muscles as an alternative to — or a backup for — the traditional intravenous execution procedure.

Welsh-Huggins also reported, "Ohio Supreme Court sets 2 new execution dates," also via Google News.

The Ohio Supreme Court on Wednesday set two new execution dates even as the state continues to rework its procedures for putting condemned inmates to death by injection.

The execution dates are the first in four and a half months set by the court, which had been scheduling executions about once a month.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted after two hours when executioners couldn't find a usable vein on inmate Rommel Broom.

The court's decision Wednesday set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio.

And:

The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

The article also notes:

The decision by Gov. Ted Strickland to stop Broom's execution was unprecedented since the United States resumed executions in the 1970s.

U.S. District Judge Gregory Frost further delayed Broom's execution pending a hearing on the inmate's request that the state not be allowed to try to put him to death again.

Strickland, a Democrat, then granted five-month reprieves to inmates scheduled to die this month and next, and Frost delayed a December execution while the state revises its injection policies.

Earlier coverage from Ohio begins here.

News Coverage of Wood v. Allen & Prosecutorial Immunity Case

You can read the transcripts in Pottawattamie County v. McGhee and Wood v. Allen, via the Court's website.

Adam Liptak writes, "Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong," for today's New York Times.

The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.

In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.

In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.

It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.

Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.

Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.

“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”

And:

The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.

Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.

“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.

Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”

Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.

Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”

It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.

Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.

"High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations," is the title of Tony Mauro's report for National Law Journal.

Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.

Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.

"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."

Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.

But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.

For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.

Jurist posts, "Supreme Court hears arguments in prosecutorial immunity, capital cases," by Jaclyn Belczyk.

In Wood v. Allen, the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.

Earlier coverage begins with this post.  All briefing is at the ScotusWiki pages for Pottawattamie County v. McGhee and Wood v. Allen.

Texas Execution

Texas is scheduled to carry out its 20th execution of 2009, tonight in Huntsville.  It would b the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

AP's Michael Graczyk files, "Bible at issue in Texas execution case," via the Houston Chronicle.

A 32-year-old man convicted of using a rifle to fatally beat and shoot an East Texas man during a burglary is headed to the death chamber.

It's a case where lawyers questioned whether jurors in their deliberations may have improperly used a Bible to justify their decisions.

State and federal courts, including the U.S. Supreme Court, have upheld the conviction and death sentence of Khristian Oliver. He's condemned for the 1998 slaying of 64-year-old Joe Collins at his home outside Nacogdoches.

Chronicle columnist Lisa Gray writes a must-read, "Life, death and the prodigal son."

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

The Nacogdoches Daily Sentinel reports, "Khristian Oliver set to die by lethal injection." It's written by Christy Wooten.

According to TDCJ, five additional executions are scheduled in Texas during 2009.  Four execution dates have already been set for 2010 in Texas.

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

Texas is scheduled to carry out its 20th execution of 2009, tonight in Huntsville.  It would b the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

AP's Michael Graczyk files, "Bible at issue in Texas execution case," via the Houston Chronicle.

A 32-year-old man convicted of using a rifle to fatally beat and shoot an East Texas man during a burglary is headed to the death chamber.

It's a case where lawyers questioned whether jurors in their deliberations may have improperly used a Bible to justify their decisions.

State and federal courts, including the U.S. Supreme Court, have upheld the conviction and death sentence of Khristian Oliver. He's condemned for the 1998 slaying of 64-year-old Joe Collins at his home outside Nacogdoches.

Chronicle columnist Lisa Gray writes a must-read, "Life, death and the prodigal son."

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

The Nacogdoches Daily Sentinel reports, "Khristian Oliver set to die by lethal injection." It's written by Christy Wooten.

According to TDCJ, five additional executions are scheduled in Texas during 2009.  Four execution dates have already been set for 2010 in Texas.

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

An Update on Scent Lineups

The Court of Criminal Appeals will be looking at one of the cases involved in scent lineups, that of Richard Lynn Winfrey from San Jacinto County.  His petition for discretionary review was granted by the Court today.  The appellant's brief is due December 4th.

Today's New York Times article is here.

Texas Tribune Up and Breaking News

As noted earlier, the Texas Tribune went live yesterday.  Today, Emily Ramshaw is breaking news on the criminal justice front with, "TYC: Mentally ill offenders won't be discharged without proper services."  Here's an excerpt:

The Texas Youth Commission will stop releasing young offenders who are too mentally ill to rehabilitate until the agency is sure they’re receiving proper treatment in the community, officials said Tuesday.

Dozens of juvenile offenders with serious mental illness are released from TYC lock-ups every year because they’re too sick to treat — not because they’re no longer a threat to the community. In the last five years, the agency has discharged hundreds of youth under this mental illness statute.

One was a schizophrenic and psychotic 16-year-old who fatally stabbed a Tyler high school teacher in September, just months after his release from the TYC.

TYC officials say state law requires them to discharge juveniles who are mentally ill or profoundly disabled if they’ve completed their minimum sentence and aren’t benefiting from rehabilitation programs. Of the 206 youth offenders they’ve released under this provision since 2005, 20 percent have been recommitted to either the TYC or an adult lock-up. 

Until this spring, a youth discharged for mental illness wasn’t eligible for specialized psychiatric services in the community. Enter Rep. Jim McReynolds, D-Lufkin, who last session shepherded a bill providing reentry services and health care referrals to youths discharged for mental illness. That care is being provided by the Texas Correctional Office of Offenders with Medical or Mental Impairment (TCOOMMI).

New Hampshire Legislators Seek to Expand Death Penalty

"Mont Vernon legislators: Home invasion murderers deserve death penalty," by Tom Fahey is in the New Hampshire Union Leader.

Two Mont Vernon lawmakers want to expand the state's death penalty law to include murders during home invasions.

Their town was the scene of the shocking murder on Oct. 4 of 42-year-old Kimberly Cates. Four teenagers have been charged in connection with the home invasion in which police say Cates was killed in a machete attack that left her 11-year-old daughter seriously injured.

Prosecutors say the teens targeted the home at random, with a plan to kill anyone inside. Two face first-degree murder charges.

Rep. William O'Brien and Rep. Robert Mead, both Republicans, are asking that their bill be called the Kimberly L. Cates Law. They have asked the House Rules Committee to let them bring forward their proposed bill, even though the deadline for new legislation has passed. The two also hope to have a bill introduced in the Senate, which is still accepting new legislation

And:

If the law were changed, the new standards would not apply to the teens charged in the Mont Vernon murder.

A year-long study of the death penalty is just getting organized in the Legislature. That study could produce recommendations to expand or eliminate the death penalty. O'Brien said he expects some resistance while the full study is under way, but he will push for passage when lawmakers return in January.

The Boston Globe carries the AP report, "NH bill to make home raid killings capital crime," written by Norma Love.

Under O'Brien's bill, prosecutors would have to prove home invaders entered with the specific intent to kill the occupants of the house for the crime to be punishable by the death penalty.

New Hampshire's death penalty law has more restrictions than any state that allows capital punishment. New Hampshire allows capital punishment for six types of crimes, including killing a police officer.

Last year, a man was sentenced to die for killing a police officer -- New Hampshire's first death sentence in 50 years. The state's last execution took place in 1939.

The U.S. Supreme Court halted executions in 1972 and lifted the ban four years later. Of the 36 states that allow capital punishment, only New Hampshire and Kansas have had no executions since 1976, according to the Death Penalty Information Center in Washington, D.C.

Earlier coverage from New Hampshire begins with this post.

Wood v. Allen at Supreme Court

The Supreme Court hears the Alabama death penalty today.  All briefing is at the ScotusWiki page for Wood v. Allen.

"Application of AEDPA to Review of State Determinations of Fact (Wood v. Allen Argument Preview)," is at SCOTUS Blog.  The preview is written by Tiffany Cartwright.

On November 4^th, the Court will hear arguments in Wood v. Allen, a capital habeas case that questions how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA).

Petitioner Holly Wood was convicted in Alabama of murdering his former girlfriend.  Two of Wood’s appointed attorneys were experienced criminal trial lawyers; the third was a novice with no criminal experience. The less experienced lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. By a vote of ten to two, the jury recommended a death sentence, which the trial judge imposed.

Wood’s conviction and sentence were affirmed on direct appeal.  The state courts rejected his petition for post-conviction relief, in which he alleged that his trial counsel’s failure to investigate and present evidence of his mental impairments at the penalty phase constituted ineffective assistance.  Instead, the state court held, the failure to present evidence of Wood’s mental impairments was a strategic decision made by Wood’s more experienced counsel.

Wood then filed a federal habeas petition under 28 U.S.C. § 2254, the section of AEDPA that governs petitions by state prisoners.  Section 2254 contains two subsections that relate to state court factual findings:  subsection (d)(2), which precludes relief unless the state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”; and subsection (e)(1), which creates a presumption that “a determination of a factual issue made by a state court” is correct unless rebutted by clear and convincing evidence.

The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.”  The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision.

On appeal, a divided panel of the Eleventh Circuit reversed. 

At the ACS Blog Emily Garcia Uhrig of the McGeorge School of Law posts, "SCOTUS Preview: Wood v. Allen."

Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.

Mr. Wood challenged his sentence in state post-conviction proceedings on the ground that he had received ineffective assistance of counsel under Strickland v. Washington during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments. He argued that (1) defense counsel was deficient in failing to develop and introduce the mitigation evidence; and (2) there was a reasonable probability that but-for that deficiency, he would not have received a death sentence. The evidence adduced at two state evidentiary hearings on the claim strongly suggested that counsel's omission was due more to professional inexperience and poor communication among defense counsel, than a calculated, tactical decision by the defense team. (Experienced defense counsel's testimony was largely unhelpful in this regard in that, due to the passage of time, they recalled little, if any, of the actual tactical decisions made during the penalty phase.)

And:

In granting certiorari, the Supreme Court agreed to evaluate the merits of the Eleventh Circuit's ruling. But in order to do so, the Court also agreed to consider a threshold issue regarding the level of deference federal courts must give to state factual findings in resolving federal habeas petitions. This issue of statutory interpretation has vexed and divided lower federal courts since the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") rewrote the standards that govern federal habeas review. Remarkably, until now, the Court has not provided guidance on the matter.

The debate on the level of deference centers on the interaction of two sections of AEDPA, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). Section 2254(d)(2) provides that a federal court may grant a writ of habeas corpus where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Section 2254(e)(1), by contrast, provides that "a determination of a factual issue made by a State court shall be presumed to be correct" by a federal court and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The parties, as well as circuit courts, disagree as to how to reconcile these two provisions.

And:

The issue is a tricky one, with both parties finding support from the canons of statutory interpretation. Guidance from the Court on the issue is long overdue and, though seemingly academic, may have a significant impact on litigants such as Mr. Wood: While the state courts' factual finding that defense counsel's decision not to investigate evidence of his mental deficiencies was tactical may qualify as "unreasonable" under § 2254(d)(2), it may be a more difficult task to rebut that finding by clear and convincing evidence under § 2254(e)(1), particularly where defense counsel, themselves no longer recall their own decision-making. Thus, for Mr. Wood and others like him, the availability of habeas relief - a literal matter of life or death - may ultimately turn on the level of deference given to state court factual findings, as articulated by the relationship between these two statutory provisions.

The Wisonsin Law Journal takes up the case, with others, at, "U.S. Supreme Court scrutinizing lawyers," written by Kimberly Atkins.

The Court is not done examining how lawyers do their jobs. On Nov. 4, the justices will hear oral arguments in a case dealing with the alleged bad deeds of prosecutors. Pottawattamie County v. McGhee asks whether a prosecutor may be held civilly liable for wrongful conviction and incarceration for allegedly procuring false testimony during a criminal investigation, and then introducing that same testimony against a criminal defendant at trial.

The same day, in Wood v. Allen, the Court will consider whether a defense attorney’s failure to present evidence of the defendant’s impaired mental functioning in a capital case constituted ineffective assistance of counsel.

Decisions in all of these cases are expected this term.

Earlier coverage of the case begins with this post.

Attorneys for DC Sniper Appeal to Supreme Court

"Supreme Court is asked to spare sniper," is the report in today's Washington Post.  It's written by Maria Glod and Josh White.

Attorneys for sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial.

Muhammad, 48, who teamed up with Lee Boyd Malvo, now 24, in a series of random shootings that left 10 people dead, suffers from mental illness and brain damage caused partly by childhood beatings, defense attorney Jonathan P. Sheldon and others on the defense team wrote.

As he prepared for his 2003 trial, Muhammad was "amnesic of the events surrounding the crimes" and thought he was being framed in an elaborate scheme, the attorneys wrote. He believed that he was a prophet and said Malvo discovered an herbal cure for AIDS. He also said the military had trained him in "urban warfare" at "secret schools." The attorneys said that because of Muhammad's brain damage, he has trouble following a logical line of thought and "lacks sufficient ability to distinguish truth from falsity."

The argument to the Supreme Court contends that attorneys Peter D. Greenspun and Jonathan Shapiro were ineffective because they failed to object to Muhammad's demand to represent himself at trial. Had the pair argued that Muhammad's mental problems made him unfit to present his own defense, there is a "reasonable probability" that the judge would have found Muhammad incompetent to stand trial altogether, Sheldon wrote.

"Trial counsel knew that Muhammad had been diagnosed with severe mental illness, and personally observed Muhammad's struggle with severe psychiatric disorders prior to the start of the trial," the attorneys wrote. "Muhammad's trial attorneys had a duty to request a competency evaluation, and their failure to do so was unreasonable and below prevailing professional norms."

"Plea to delay execution in sniper case," is the title of Lyle Denniston's post at SCOTUS Blog.

Seeking to slow down the famed “rocket docket” in federal trial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges.  Muhammad faces execution in one week, on Nov. 10,  for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.

Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.

His stay application (09A423) is here.  Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328).  The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia.  He has the authority to act alone or share action with his colleages on the stay application.  The full Court will consider the certiorari petition.

In seeking to put off the Nov. 10 execution, Muhammad’s attorneys argued that “Virginia is alone in its practice of always setting an execution date just prior to the Supreme Court’s consideration of a petition for a writ of certiorari from an appeal of a first habeas petition.”  The application noted that Justices John Paul Stevens and Ruth Bader Ginsburg protested that practice two years ago.  That complaint is separate from the challenge to the federal district courts’ refusal, on first habeas petitions like Muhammad’s, to allow the full year to file that is specified under federal law.

Because the execution date would fall 20 days before Muhammad’s petition would even be due in the Supreme Court under normal scheduling, his lawyers filed it at the same time as their stay application.   The application argued that the Court should adopt as a routine practice the staying of all executions that a state schedules before the Supreme Court has a chance to complete review of a first federal habeas case.

Today's Allentown Morning Call, in Pennsylvania, carries an OpEd by Brian Gilmore, "D.C. sniper should not be executed."  Gilmore is a writer for Progressive Media Project.

John Allen Muhammad, the infamous Washington sniper, should not be put to death.

But Muhammad will die on Nov. 10 by lethal injection. He will be executed under the laws of the state of Virginia. No one will save him. Not the U.S. Supreme Court. Not Virginia Gov. Tim Kaine. Not President Obama. Each could do so but won't.

I understand why families of Muhammad's victims want him to die: He terrorized a city, he ruined lives and he destroyed futures. I was living in Washington at the time, and I can still recall my own fear for myself, my family and my friends that there was a random shooter on the loose.

But the justified anger of the victims' kin does not justify state-sponsored killing.

Capital punishment is morally wrong and irrational.

Idaho Prosecutors Opting Not to Seek Death Penalty

That's the title of Patrick Orr's report in the Idaho Statesman of Boise.  It's subtitled, "Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005."

For Elmore County prosecutor Kristina Schindele, the decision was simple: The only way Mexico would extradite accused triple-murderer Jorge Orozco to Idaho was if the county agreed not to pursue the death penalty.

But as Ada County Prosecutor Greg Bower faced one of the most high-profile murder cases in his decades-long career, the call was much tougher.

He ultimately wouldn't detail "the many legal and factual reasons" why he is not seeking the death penalty for Daniel Ehrlick and Melissa Jenkins, saying he didn't want to prejudice the jury pool.

But trying to predict exactly what that jury will do is likely a major factor why Bower won't seek the death penalty in the beating and murder of 8-year-old Robert Manwill.

Because in death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.

Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho - double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.

And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial.

Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others - including one in a child-death case with many similarities to the Manwill case.

And:

To impose the death penalty, a jury must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh the mitigating factors offered by the defense.

Mitigation is not as strictly defined. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma - including mental, physical and sexual abuse.

Today's Twin Falls Times-News carries the editorial, "Capital punishment may be gone for good in Idaho."

Is the death penalty a thing of the past inthe Gem State? Sure looks that way. Ada County Prosecutor Greg Bower's recent decision not to seek the death penalty against the mother and her boyfriend accused of killing 8-year-old Robert Manwill last summer shows just how difficult prosecutors believe it is to convince a jury to put a convicted person to death in Idaho.

And there are other considerations as well. Recession-battered small counties simply can't afford the hundreds of thousands of dollars that prosecuting a death penalty case requires.

In 2002, the U.S. Supreme Court ruled that juries - not judges - must impose capital punishment. For prosecutors, that's a much bigger hurdle.

To apply the death penalty, jurors must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh mitigating factors offered by the defense.

Mitigation is a murky concept. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma.

Since juries took over deciding the death penalty, only two Idaho counties have asked for capital punishment in murder cases. Ada County - Idaho's biggest and most prosperous - hasn't pursued it since being denied twice in 2005.

And:

Polls have consistently shown that Idaho is one of the most pro-death penalty states in the nation, but just one person in half a century has been executed here - double-murderer Keith Eugene Wells, who dropped all appeals and demanded lethal injection in 1994.

Unless the Supreme Court changes the rules, capital punishment is the longest of longshots for Idaho prosecutors nowadays. And nobody in Idaho - not the governor, the Legislature, the attorney general nor prosecutors - is in a position to change that.

Earlier coverage from Idaho is here.

The Economist on the Todd Willingham Case

"From arson to politics," is the title of the article from the October 22nd issue.

Innocence is a recurrent claim in last statements. In Mr Willingham’s case, it may well have been true. Shortly before he was executed, an arson expert from Austin faxed a report to the governor, Rick Perry, arguing that the 1991 investigation was based on bad science and that there was no proof of arson. Half a dozen additional experts have come to the same conclusion. In August another report came from Craig Beyler, who had been hired by the Texas Forensic Science Commission (TFSC), an oversight board. Mr Beyler’s report gave a blistering assessment of the original investigation, saying its conclusions were “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

Two days before the commission was due to hold a hearing on the Beyler report, on September 30th, Mr Perry announced he was replacing three of his appointees to the TFSC, including its head, Sam Bassett. Several days later he said he would replace the fourth. Their terms had expired, the governor explained. That is true, but not especially convincing. “It certainly is bad timing for the continuity of these investigations,” says Mr Bassett, a criminal defence attorney in Austin. Had the commission concluded that the evidence did not point to arson, Mr Perry would have been faced with the grave possibility that Texas had executed an innocent person.

Even Republicans are concerned. The governor is up for re-election in 2010. Kay Bailey Hutchison, his chief opponent for the Republican nomination, announced that the business with the commission was just “giving liberals an argument to discredit the death penalty”.

Michelle Goldberg of the American Prospect writes, "The Execution of a Potentially Innocent Man Less Scandalous Than an Affair?" for AlterNet, today.

It's lucky for Gov. Rick Perry of Texas that he's not suspected of doing something truly shocking, like having an affair. Instead, it merely seems that he's helped cover up a homicide. Apparently that's not enough to make much of a national splash.

Last month, The New Yorker published a remarkable piece by David Grann about the case of Cameron Todd Willingham, who was executed in 2004 for a crime that all the evidence suggests he didn't commit. In 1991, Willingham's house caught on fire, burning his three daughters to death. Ill-trained investigators accused Willingham of arson. At his trial, a family therapist who had never met Willingham was called as an expert witness and suggested that Willingham's heavy metal posters indicated that he might be a satanist.

Because Willingham couldn't afford decent representation, it was many years before a friend of his managed to get qualified experts to take a look at the case. Grann described the investigation conducted by Gerald Hurst, one of the country's most acclaimed fire investigators: "Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on 'junk science.'" If Perry read the report, which was submitted just weeks before Willingham was executed, he didn't act on it, refusing to grant a stay of execution.

Grann wasn't the first to probe the Willingham case. Ten months after Willingham was put to death, The Chicago Tribune published an important investigation by Steve Mills and Maurice Possley. Willingham, they wrote, "was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances. According to four fire experts consulted by the Tribune, the original investigation was flawed and it is even possible the fire was accidental."

And:

Perry's role in this continuing injustice should be cause for a national uproar at least as big as the one that attended Mark Sanford's dalliance in Argentina or Elliot Spitzer's patronage of prostitutes. What could be more sordid than hushing up an illegitimate state-sanctioned killing? What more obvious abuse of power exists? Yet one can easily read the country's major papers and faithfully watch TV news and barely hear a word about what's happening in Texas.

The state's press is covering it, of course, and both The Chicago Tribune and The New Yorker have been heroic. On Monday, the Tribune published its latest report under the blunt headline, "Texas execution: Statements by Gov. Rick Perry, others don't align with facts."

Still, the story, for all its drama, remains far from a hot topic. If ever a story were crying out for a journalistic pile-on, this one is. Yet there's no intimation that this could be a career-ending thing for Perry, no widespread sense of outrage. This should be the biggest scandal of the year. The fact that it's not is a scandal itself.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

'Scent Lineup'

"Picked From a Lineup, on a Whiff of Evidence," is the title of John Schwartz' report in today's New York Times.  Here's an extended excerpt:

A dog’s sniff helped put Curvis Bickham in jail for eight months. Now that the case against him has been dropped, he wants to tell the world that the investigative technique that justified his arrest smells to high heaven.

The police told Mr. Bickham they had tied him to a triple homicide through a dog-scent lineup, in which dogs choose a suspect’s smell out of a group. The dogs are exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

Dogs’ noses have long proved useful to track people, and the police rely on them to detect drugs and explosives, and to find the bodies of victims of crime and disaster. A 2004 report by the F.B.I. states that use of scent dogs, properly conducted, “has become a proven tool that can establish a connection to the crime.”

Scent lineups, however, are different. Critics say that the possibilities of cross-contamination of scent are great, and that the procedures are rarely well controlled. Nonetheless, although some courts have rejected evidence from them, the technique has been used in many states, including Alaska, Florida, New York and Texas, said Lawrence J. Myers, an associate professor of animal behavior at the Auburn University College of Veterinary Medicine.

In particular, the methods of the dog handler in Mr. Bickham’s case, and in a half-dozen others that are the basis of lawsuits, have come under fierce attack.

The handler, Deputy Keith A. Pikett of the Fort Bend County, Tex., Sheriff’s Department, is “a charlatan,” said Rex Easley, a lawyer in Victoria, Tex., who represents a man falsely accused by the police of murdering a neighbor. Deputy Pikett, the lawyer said, “devised an unreliable dog trick to justify local police agencies’ suspicions” for producing search warrants and arrests.

Deputy Pikett, who declined to be interviewed, works in the town of Richmond, southwest of Houston, but he has served as a busy consultant to law enforcement agencies around the state, using his home-trained bloodhounds — he has given them names that include Columbo, Quincy and Clue — to sniff out crime. A native of Buffalo, N.Y., he has by his own estimate in court testimony performed thousands of scent lineups since the 1990s. His lawyer said the techniques were effective.

Thomas Lintner, the chief of the F.B.I. laboratory’s evidence response team unit, said the agency used scents only to follow a trail to a suspect or to a place associated with him, and not to identify one person out of several. The 2004 F.B.I. report warned that dog scent work “should not be used as primary evidence,” but only to corroborate other evidence.

In several of the cases that were based on Deputy Pikett’s dogs, however, the scent lineups appear to have provided the primary evidence, even when contradictory evidence was readily available. Mr. Bickham spent eight months in jail after being identified in a scent lineup by Deputy Pikett’s dogs, until another man confessed to the killings. In an interview, Mr. Bickham scoffed at the accusation that he had taken part in three murders, noting that he has been hobbled by bone spurs and diabetes and is partially blind.

Ronald Curtis, another Houston man jailed on the basis of Deputy Pikett’s dogs, was released from jail nine months after being accused of a string of burglaries. Store videos showed that the burglar did not resemble him. “Nobody was listening,” Mr. Curtis said.

Both he and Mr. Bickham are filing civil lawsuits over their treatment in federal court on Wednesday.

The first person to file such a suit, in January, was Michael Buchanek, a retired captain with the Victoria County, Tex., Sheriff’s Department and a client of Mr. Easley. After Deputy Pikett’s dogs identified him, Mr. Buchanek said the police “just kept telling me, ‘the dogs don’t lie — we know you did it.’ ” After months of uncertainty, DNA evidence implicated another man who later confessed to the crime.

And:

Mr. Easley shared his findings with colleagues at the Innocence Project of Texas, a legal defense organization, which released a report last month that excoriated dog scent lineups as a “junk science injustice.” Jeff Blackburn, the chief counsel for the group, said Deputy Pickett merely gave the police the match they had hoped for.

Earlier coverage of the Deputy Pikett and his dogs begins with this post.

Cost an Issue in Spokane, Washington

Today's Spokesman-Review carries the editorial, "Death penalty cases costly; instead, seek life sentences."

Stevens County is balking at accepting the death penalty case of Christopher H. Devlin, because of the enormous costs associated with mounting such cases. It’s a valid concern, because the county is already facing a $1.2 million deficit.

“I have no doubt that the defense cost of Mr. Devlin and the costs to prosecute this case would be a serious blow to the solvency of Stevens County,” county prosecuting attorney Tim Rasmussen told The Spokesman-Review. He noted that a similar case cost Okanogan County $750,000.

While cost shouldn’t be the only concern in prosecutions, it’s become clear that a death penalty charge imposes a financial burden that isn’t worth it. That’s also true of larger counties, especially as they try to dig themselves out of deep budgetary holes. It can mean more pressure to reach plea agreements in other cases or employee layoffs or cutbacks in service.

And:

This financial hot potato shows why it is a wiser course to seek life sentences, with no possibility of parole, for defendants like Devlin. Despite popular misconception, it is cheaper to imprison and feed a “lifer” than it is seek an execution. Once such a conviction is obtained, a series of lengthy appeals will begin. Many more death row inmates die of natural causes than executions, but the delays are necessary because of the irreversible nature of the punishment.

Spokane County dodged a bill of $1 million or more when it decided against the death penalty for convicted serial killer Robert Lee Yates Jr. The same is true with Kootenai County in the case of Joseph Duncan.

We certainly do not weep for these killers, and if Devlin is guilty, we have no sympathy for him. But they will die in prison. Hastening that day just isn’t worth it.

Related articles are in the cost index

OpEds, Columns, and Commentary on the Florida Cases

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law," is the title of Kristin Henning's commentary at FindLaw.com.  She's Co-Director of the Juvenile Justice Clinic at Georgetown University Law Center.

Many children in conflict with the law come to the same crossroads as Joe and Kareem. And there, the courts must decide: Should a juvenile convicted of a crime – even a violent crime – be sentenced to life and denied any meaningful opportunity for parole? In November, the United States Supreme Court will answer this question when it hears the cases of Joe Sullivan and Terrance Graham, another Florida juvenile who was sentenced to life without parole (LWOP).

The stories of Joe and Kareem demonstrate that the Court's answer should be no – both as a matter of policy and as a mandate of law. Where the paths of Joe and Kareem diverge, the paths of policy and law come together, leading to one conclusion: juvenile LWOP is a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

Both Kareem and Joe illustrate why eliminating juvenile LWOP is good policy. The overwhelming majority of juvenile offenders do not become chronic offenders. Instead, they follow Kareem's path, embracing the opportunity to reform and becoming productive members of society.

Children change over time. Juveniles who commit crimes are in the midst of their cognitive and psychological development. According to the American Medical Association, adolescents are more likely to engage in risky, sensation-seeking behavior because their brains are not fully developed. The frontal lobe of the brain, which controls our most advanced functions (like judging consequences and controlling impulses), continues to evolve into our early 20s.

The result? More often than not, a juvenile offender's propensity for impulsive (even criminal) behavior will dissipate in adulthood. The difference between a youth offender and an adult offender is clear: the child's identity is unformed, meaning that his "criminal" character is far less likely to be chiseled in stone. As the American Psychological Association tells us, juveniles have "greater changeability" and a strong capacity to reform.

Every time a child is sentenced to LWOP in our country, science collides with morality. We know from the soundest neurological and psychological research that youth offenders are not as competent or hardened as their adult counterparts. And yet, Joe Sullivan's formative and fluid identity met an irreversible fate when he was sentenced in 1991.

Florida's St. Petersburg Times carries the OpEd, "Myths of get-tough law," by Jeffrey Fagan & Franklin E. Zimring.  Fagen teaches law at Columbia; Zimring at UC Berkeley.

Florida Attorney General Bill McCollum is defending the state's life without possibility of parole sentences for 13- and 16-year-olds against constitutional attack. But this isn't the first time McCollum has made history in the politics of juvenile justice. As a member of Congress in the 1990s, he promised the United States a "coming storm" of superpredators as a result of a population surge of kids from fatherless homes.

His 1996 warning was a world-class mistake. Juvenile homicide arrests promptly dropped in the United States by half. Yet anyone who thinks that a catastrophic statistical error like a phony crime wave would slow down McCollum needs to think again. In his brief before the Supreme Court in Graham vs. Florida, a constitutional challenge to laws permitting life sentences without the possibility of parole for very young minors, the attorney general now asserts that Florida's 30 years of get-tough legislation are the reason juvenile crime rates have fallen since the mid 1990s.

But this month's claim for deterrence is as phony as last decade's crime scare.

And:

In a way, McCollum should be relieved that our careful analysis shows the life without parole policy has no effect. Taking the statistics presented in his brief seriously would suggest that Florida's celebrated crackdowns were reducing the crime decline benefits that other states are enjoying. The only bad effects we can demonstrate from Florida's brief in the Graham case are on legal argument and statistical logic.

"Don't give up on the kids," by R. Dwayne Betts appeared in Sunday's Baltimore Sun.  He's the author of A Question of Freedom.

Five years after my own release from prison - and months after delivering a commencement speech at the University of Maryland's graduation, speaking moments before CIA Director Leon Panetta - I found myself on an American Bar Association panel with lawyers and psychologists. A woman in the audience asked me what I thought should be done to a child who commits the kinds of crimes that end with life without the possibility of parole; I misheard her question and kept thinking that she had asked what I would do or say if the victim had been my family member.

As I began to answer her question, I thought about Rashid, and about how I couldn't escape the nightmare of being in a closed cell. I thought about my relatives, and how in my family tree there were both victims of violence and perpetrators. I thought about the judge reminding me of the life sentence I faced. And then I asked myself: What would I want if the victim were my daughter, or my sister? In my head there were two horrors, and I realized that the horror of life in prison and everything it means doesn't make right the horror of crimes I can't begin to imagine.

I told the woman that the justice system was not created to respond the way a family member would. We ask our justice system to do more than just act on impulse. We ask it to stand for more than vengeance. A system that didn't believe in the rehabilitation of young people would have left Alan K. Simpson a statistic and not given him room to mature to the point where he could become a United States senator. Charles S. Dutton wouldn't be a renowned actor. Many nameless men and women who are productive members of our society would still be in prison cells.

Harvard Law prof Charles Ogletree posts, "Supreme Court Should Apply Roper Reasoning to Upcoming Juvenile Life-Without-Parole Cases, at the ACS Blog.

Sullivan and Graham present an opportunity for the Court to affirm the reasoning put forth in Roper v. Simmons, which struck down capital punishment for juveniles. Roper established what every parent knows and what science confirms: adolescents are fundamentally different from adults in maturity and judgment.

The extensive body of research on adolescent development proves that adolescents have not reached the level of mental or emotional development that allows adults to make mature decisions, think through consequences, and control their impulses. This same developmental immaturity also makes adolescents the strongest candidates for rehabilitation as they grow older.

In Roper, the Court asserted that these significant developmental differences have direct bearing on the culpability of adolescents. The Court ruled that their immature judgment, impulsive decision-making, vulnerability to peer pressure, and inherent potential for rehabilitation reduce culpability such that sentencing them to death violates the Eighth Amendment.

These principles should be applied to the constitutionality of juvenile life-without-parole sentencing. The same transient qualities of adolescence that the Court relied upon in Roper make it similarly inappropriate to subject a teenager to a permanent punishment of life in prison without parole. It is cruel and inaccurate, as the Court has recognized, to pass a final and irreversible judgment on a person whose character is still forming and undergoing significant changes.

Linda White of Magnolia, Texas wrote, "Giving child offenders a chance," for the Washington Post.

I was deeply moved by former senator Alan K. Simpson's Oct. 23 Washington Forum commentary, "A sentence too cruel for children," although I might be an unexpected person to be so moved. Twenty-three years ago, my daughter, then pregnant, was murdered by two 15-year-old boys. But in the years since her death, I have come to believe that sentencing teenagers to life in prison without the possibility of parole does not serve victims, offenders or public safety.

There is no reason to deny child offenders the opportunity to have their sentences reviewed after they have served a significant amount of time to see whether they have changed and matured. Only those who have demonstrated their growth and proved they are rehabilitated would be considered for parole. As Mr. Simpson's personal story shows, the potential for growth is enormous.

My family experienced unimaginable loss, but I still believe that young people -- even those who have done terrible things -- can be reformed. A permanent sentence should not be imposed on children whose characters are still forming.

"The juvenile damned," is Lara Bazelon's National Law Journal commentary.  It appeared October 12.

Sullivan and Graham's argument — that adherence to Roper's teachings requires the abolition of life-without-parole sentences for adolescents — is strong and persuasively presented. A punishment is "cruel" if it is excessive and therefore contravenes the "basic precept of justice that punishment for crime should be graduated and proportional." A punishment is "unusual" if it is implemented so rarely "that a national consensus has developed against it." The petitioners have shown, relying in large part on empirical data, that permanently depriving adolescents of their liberty is both cruel and unusual.

In Roper, the Court found that capital punishment for juveniles was cruel in part because the inherent immaturity of child offenders makes their conduct "not as morally reprehensible as that of an adult." The Court noted that juvenile offenders have difficulty appreciating the long-term consequences of their actions and controlling their impulses. The short-sightedness and impetuosity of teenagers, combined with their greater susceptibility to the influences of their peers and their inability to extricate themselves from dangerous or negative surroundings, mean that juveniles have a "diminished capacity" that makes them less blameworthy — and thus less deserving of retribution — than their adult peers. Additionally, young adolescents are a work in progress — trying on and discarding a number of identities in the fraught and complicated process of growing up. Their adult selves may bear little physical or emotional resemblance to the angry, destructive teenagers they once were, undercutting the argument that they must be permanently removed from society.

The findings of neuroscientists and developmental psychologists lead to the same conclusion when applied to life-without-parole sentences for juvenile offenders like Sullivan and Graham: They are cruel within the meaning of the Eighth Amendment. Anyone who has ever raised a teenager, befriended one or been one knows the extent to which that teenager can be self-involved, present-oriented, misguided and overly influenced by a peer group. But it is also true that upwards of 90% of them outgrow it. An amicus brief filed by former juvenile offenders, who grew up to be a U.S. senator, an assistant U.S. attorney, a best-selling author and a Tony-nominated actor, makes this point powerfully. Life-without-parole sentences, had they been handed down in those cases, would have made these accomplished and productive lives impossible. By disallowing the great probability that young offenders will grow and change profoundly and for the better, life-without-parole sentences are not only pitiless, but are excessive in a way that the Eighth Amendment forbids.

"Sending children to prison for life," by Bernard Harcourt of the University of Chicago appeared in the October 5 issue of the Los Angeles Times.

To be sure, we might not always seek legal guidance abroad. But in this case, the international comparisons are telling. No country other than the United States incarcerates children for life without parole. We were the lone "no" vote against the 2006 U.N. General Assembly resolution calling on all nations to abolish such life sentences. Somalia is the only other nation that has not ratified Article 37 of the U.N. Convention of the Rights of the Child, prohibiting juvenile life-without-parole sentences.

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing. And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities. Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent. States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

So why should minors be treated like adults when it comes to sentencing?

Ironically, the same laws that are intended to protect children from exploitation and their own immature judgment -- including restrictions on driving, working and leaving school grounds -- prevent young teens from escaping an abusive parent, a violent household or a crime-ridden neighborhood. As the Supreme Court observed in the 2005 Roper decision, "juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment."

Earlier coverage begins with the preceding post.