The StandDown Texas Project

New Execution Method Unlikely to Gain Traction in California

That's the title of Carol Williams' report in today's Los Angeles Times.  LINK

An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

And:

California and several other states that have the death penalty on hold are reviewing their three-drug procedures to address claims that they might inflict "cruel and unusual punishment" banned by the Constitution. The first drug -- the one used in Biros' execution -- is supposed to render the prisoner unconscious before paralysis is induced by the second drug and cardiac arrest by the third. In some of the 11 lethal injections carried out in California since the 1990s, analysts contend the prisoner was still conscious when the painful fatal dose was injected.

Ohio authorities were able to quickly revise their execution method after a failed Sept. 15 attempt at putting to death another inmate, Romell Broom, 53. The execution team worked for more than two hours trying to find a suitable vein before the governor halted Broom's execution.

California couldn't switch methods so quickly. The state's Administrative Procedures Act requires authorities to seek public comment on any change in official practices.

Capital punishment supporters say opponents abuse the law to delay executions.

"Opponents of the death penalty then intentionally make that process more expensive and time-consuming than necessary by spamming [corrections officials] with a flood of irrelevant comments decrying the death penalty generally," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based foundation that represents the interests of victims' rights groups and law enforcement.

Deborah Denno, a Fordham University law professor who opposes the death penalty, said Ohio's execution of Biros probably will inspire other states to consider adopting that method. But it has done nothing to address the problem executioners often encounter in finding a vein capable of holding the catheter through which the lethal drug or drugs are delivered, she said.

UC Berkeley law professor and Death Penalty Clinic director Elisabeth Semel noted that the one-drug method has been discussed during the four years that California's three-drug protocol has been under review. But a task force appointed by Gov. Arnold Schwarzenegger in 2007 to revise the execution method apparently never gave it serious consideration, Semel said.

"It's the historic problem with execution procedures, that they have always been conducted in secret," said Semel, whose clinic offers opportunities for students to represent prisoners with capital sentences.

U.S. District Judge Jeremy Fogel in San Jose ruled California's lethal injection practices unconstitutional in December 2006. The governor's task force revised the procedures to ensure that the prisoner would be fully anesthetized before death, but before the changes could be evaluated by Fogel, attorneys for two death row inmates challenged their legality in state court.

A judge in Marin County, where San Quentin's execution chamber is located, deemed the revised procedures illegal for their lack of public input. A state appeals court upheld the ruling a year ago, prompting the California Department of Corrections and Rehabilitation to call for comment, drawing more than 8,000 letters, e-mails and public statements.

The corrections department "is still going through the thousands of public comments received. No one knows when that will be completed," said spokeswoman Terry Thornton.

Earlier coverage from California begins with this post.  Coverage of Judge Fogel's federal court ruling is here; the state court ruling, here.

Nebraska Moving Forward With Plan for Three-Drug Procedure

"Neb. lethal-injection plan advances," is the AP report via KTIV-TV.

A proposed lethal-injection protocol in Nebraska has been submitted to Attorney General Jon Bruning for approval.

Last week, the state Department of Correctional Services signed off on the three-drug cocktail and the process of administering it to death-row inmates.

The department devised the proposed protocol and did not make any changes to the proposal after some raised concerns about it, including that it doesn't clearly specify how workers should be trained to administer the drugs.

If Bruning approves the proposal, it will go to Gov. Dave Heineman for final approval.

Nebraska has been without a means of carrying out the death penalty since early last year, when the state Supreme Court deemed the electric chair cruel and unusual punishment.

Earlier coverage from Nebraska begins with this post.

Also From Ohio

A federal district judge in Ohio is holding a hearing today on the botched execution attempt of Romell Brown in September.

"Ohio killer asks judge to stop 2nd execution try," is the title of the AP report.

A day after Ohio became the first state in the country to use a single drug in a lethal injection, the condemned killer whose botched September execution prompted the change from a three-drug method is returning to court to argue against another attempt to put him to death.

A federal judge said he'd start hearing arguments Wednesday on the case of inmate Romell (roh-MEL') Broom, who was sentenced to die for raping and killing a teenage girl.

The state bungled Broom's Sept. 15 execution when it couldn't find a usable vein for injection and wants to try again.

His attorneys say that would constitute cruel and unusual punishment.

Coverage of the botch execution attempt is here; its aftermath, begins with this post.  Related posts are in the lethal injection category index.

News Coverage of Single-Drug Lethal Injection Execution

"Ohio executes inmate with one-drug injection," is the title of Andrew Welsh-Huggins AP report, via Google News.

An Ohio killer was put to death in an efficient 10 minutes Tuesday in the first U.S. execution to use a single drug injection instead of the standard three-chemical combination that has come under legal attack because it can cause excruciating pain.

Kenneth Biros, 51, was pronounced dead shortly after one dose of sodium thiopental began flowing into his veins at the Southern Ohio Correctional Facility. The U.S. Supreme Court had rejected his final appeal two hours earlier.

Experts had predicted that sodium thiopental — used in many parts of the world to put pets down — would take longer to kill than the old method. But the 10 minutes it took Biros to die was about as long as it has taken other inmates in Ohio and elsewhere to succumb to the three-drug combination.

And:

Biros' executioners struggled for several minutes to find suitable veins, inserting needles repeatedly in both arms before completing the process on just his left arm. He winced once, and his attorney, John Parker, said he was concerned by all the needle sticks. But prison officials declared nothing amiss.

"There was no problem with anything in us carrying out the law of this state in this particular execution — none whatsoever," Ohio Prisons Director Terry Collins said. "The process worked as we said it would work."

After the chemical started flowing, Biros' chest heaved several times, and he moved his head twice over a span of about two minutes before he lay perfectly still.

Also:

All 36 death penalty states use lethal injection, and 35 rely on the three-drug method. Nebraska, which recently adopted injection over the electric chair, has proposed the three-drug method but hasn't yet adopted it.

Kentucky, Florida, South Carolina, Texas and Virginia are among those that have said they will keep the three-drug method.

Sodium thiopental is a barbiturate often used to anesthetize surgical patients, induce medical comas or help desperately ill people commit suicide. It is also sometimes used to euthanize animals. It kills by suppressing breathing.

Ian Urbina writes, "New Execution Method Is Used in Ohio," for today's New York Times.

The new method, which involved a large dose of anesthetic, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in all other states that employ lethal injection, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intramuscular injection if the authorities are unable to find a usable vein, has not been properly vetted by legal and medical experts. Since it had never been tried on humans before, they contend it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

The inmate, Kenneth Biros, 51, died at 11:47 a.m. Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, said the drug took about 10 minutes to take effect, roughly the same length of time as the three-drug cocktail. It took about 30 minutes for the execution team to find a usable vein, after having inserted the needle several times into each arm.

The Columbus Dispatch carries, "Killer executed using single drug," by Alan Johnson.

In the last night and morning of his life, Kenneth Biros drank cup after cup of water, 12 in all, perhaps hoping to ensure that he was hydrated so that his executioners could more easily access his veins to kill him.

Whether the extra water had anything to do with it or not, Biros died quietly at 11:47 a.m. yesterday, about 10 minutes after a single, large dose of thiopental sodium, a powerful anesthetic, flowed into his left arm.

He is the first person in U.S. history to be put to death using a single drug.

Ohio prisons director Terry Collins said afterward that there were "no problems whatsoever" with Ohio's new one-drug method. "The process worked as expected."

And, this paragraph refers to Biros' attorney John Parker:

Parker said after witnessing the execution that he still has "major concerns" about the intravenous-access issue. He said he counted nine times that prison medical technicians tried before gaining access for a single IV line in Biros' left arm. They were unable to start a line in his right arm.

Parker and co-counsel Timothy Sweeney argued unsuccessfully in the courts that the execution should be stopped because it involved "experimentation" on human beings using untried and untested procedures.

Bill Rodgers writes, "State hails execution as success for one-drug injection," for the Warren Tribune Chronicle.

To Terry Collins of the State Department of Corrections, the execution of Kenneth Biros on Tuesday meant validation for a procedure that was a response to, but had never been used on, inmates who argued that Ohio's lethal injection procedure caused a severe amount of pain.

"I think we far exceeded what our critics were saying about us," Collins said.

Collins bristled when asked by reporters about technicians who appeared to be prepping Biros' right arm for an IV site. In a process that took more than a half-hour, prison technicians appeared to be performing work on both arms. They swabbed Biros' arm and attempted to stick a needle.

As they worked on both arms, Biros could be seen wincing seven times. The technicians abandoned his right arm and found a site on his left.

"I see no problem finding veins. It's not an unacceptable practice,'' Collins said. ''I see no problem with what my team did today.

''There was no difficulty whatsoever. They (the execution team) did exceptionally," Collins said when asked about Biros' right arm.

Biros' attorney, John Parker, told reporters he counted nine attempts from the technicians to establish a site in Biros' arm.

The new one-drug procedure was adopted after technicians could not find a suitable vein to execute inmate Rommell Broom in September. Those technicians attempted to find a vein in 18 separate sticks, allegedly painfully hitting muscle and bone.

Parker said he believed nine attempts were close to being unacceptable. He also stated that Biros should have had a site in either arm as a safeguard against one arm not working.

He maintains that the state's "plan B" execution method, a lethal dose of midazolam and hydromorphone, that was the state's answer to the Broom execution still was untested, and he said he was thankful it wasn't used on Biros.

"Plan B is a disaster," he said.

Parker did not go into details about that statement when pushed further.

Ohio Department of Corrections spokeswoman Julie Walburn told witness reporters after they had left the larger reporter pool prior to the 11 a.m. execution that the intramuscular injection could have side effects.

She said that experts with the Department said it was "possible while very unlikely" that one of the drugs could cause the inmate to throw up prior to death. This was unlikely as the other drug was anti-convulsive and anti-nausea, she said.

The department's consultants were in disagreement about whether that would occur with "plan B," she said. She claimed that the inmate in such an instance would experience no pain.

"Prison official: Single-drug protocol worked as expected, despite criticism," is the Youngstown Vindicator report by Marc Kovac.

Prison staff who volunteered to participate in the execution process were able to find one viable vein to hold an intravenous shunt, which was used to administer the lethal injection.

They worked for about 30 minutes, attempting to establish IV sites in both arms but eventually gave up on the right and focused on a vein in his left arm.

The state did not have to turn to its backup plan, which would have required a direct injection of two drugs directly into Biros’ muscle.

“I think we far exceeded what our critics have been saying about us,” said Terry Collins, the Department of Rehabilitation and Correction director, after Biros’ execution. He added, “The process worked as we expected, and we know that this process would work, did work and we’ll continue to use the process as we move forward in carrying out the law of the state of Ohio.”

But John Parker, one of Biros’ attorneys, said he remains concerned about the execution process after witnessing the inmate’s death.

Earlier coverage begins with this post.

Deborah Denno on the Ohio Execution

Fordham Law professor Deborah Denno, an expert on lethal injection issues, had this initial reaction to the Ohio execution:

The good news is that Ohio did not use a paralytic agent during the execution process in the way that Ohio and other states have in the past.  All lethal injection states should likewise abandon the use of a three-drug procedure.  But serious concerns remain with Ohio’s execution procedure.  First, IV access is still a problem and appeared to be a problem for Mr. Biros as well given that technicians tried  nine times to get IV access to his left arm.  Second, it is inevitable that Ohio’s controversial backup plan will be used at some point and the drugs and procedure for that back-up plan have never been investigated for any execution process.
 
The backup plan’s problems are vast.  Evidence indicates, for example, that the drugs, hydromorphone and midazolam, will produce a slow, lingering death with the inmate in a state confusion, disorientation, and intense psychological anguish and torment.  The nausea-evoking effect of hydromorphone may cause the prisoner to vomit, before or after drifting into unconsciousness. 

Biros’ execution went forward because his execution date was set and he could not develop his case.  Other inmates in Ohio will have more time and information to challenge Ohio’s procedures and they may get different results because of a fuller litigation strategy. 

In the New York Times report, "New Execution Method Is Used in Ohio, by Ian Urbina, Denno adds:

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, added that she believed the constitutionality of the new state protocol could be challenged if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

Earlier commentary from Denno is here.  Earlier coverage from Ohio begins with this post.

U.S. House Judiciary Subcommittee Examines Habeas Restrictions in Capital Cases

Right now the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties is holding a hearing to, "Consider the Impact of Federal Habeas Corpus Limitations on Death Penalty Appeals."  Unfortunately, it's not being webcast.  The Subcommittee is chaired by Jerrold Nadler of New York.

The Witnesses are:

Stephen F. Hanlon
Partner, Holland and Knight, LLP
Washington, DC

Hon. Gerald Kogan
Chief Justice (Retired), Florida Supreme Court
Co-Chair, Constitution Project Death Penalty Committee
Miami, FL

Michael E. O'Hare
Supervisory Assistant State’s Attorney, Civil Litigation Bureau
Office of the Chief State’s Attorney
Hartford, CT

John H. Blume
Professor of Law, Director, Cornell Death Penalty Project
Cornell University Law School
Ithaca, NY

The Constitution Project has issued a news release, "Constitution Project Representatives Urge Congress to Restore Habeas Corpus for Death Penalty Cases."

Two representatives of the Constitution Project will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties this afternoon at a hearing to consider the impact of limits on federal habeas corpus in death penalty cases. Stephen F. Hanlon, Chair of the Constitution Project’s Board of Directors, Chair of the American Bar Association’s Death Penalty Moratorium Project Steering Committee, and partner at Holland and Knight, will testify on behalf of the ABA. The Honorable Gerald Kogan, Co-Chair of the Constitution Project’s Death Penalty Committee and former Chief Justice of the Florida Supreme Court, will testimony on behalf of the Constitution Project. Both will provide testimony on the urgent need to restore habeas corpus for death penalty cases.

 In his testimony submitted to the Subcommittee, Chief Justice Kogan states in part:

 

“Federal habeas corpus is an enormously important element of our justice system with deep roots in our constitutional tradition. In particular, the federal courts’ authority to adjudicate constitutional claims advanced by state prisoners is a valuable means by which the Bill of Rights is enforced in criminal cases. Scarcely anyone contends that the federal courts should not have this authority. The policy debate is over the proper arrangements for habeas corpus litigation in the federal forum.”

 

Mr. Hanlon adds in part:

 

“[S]tate governments have failed for many years to implement the necessary reforms to address long-standing and systemic problems in our death penalty counsel systems. Mistakes that occur at trial as a result of these failures are aggravated by ever-tightening restrictions on federal court review, making it difficult, if not impossible, for federal courts to correct even the most serious deprivation of constitutional rights. A system that wrongly sentences people to death and then erects considerable obstacles to bar judicial review of their cases is not a system that comports with our principles of justice. It should not surprise us that one consequence is a loss of public confidence in the integrity and accuracy of our legal system.”

Justice Kogan's complete testimony is here; Hanlon's here; both in Adobe .pdf format.

The Constitution Project’s Death Penalty Committee’s consensus report, Mandatory Justice: The Death Penalty Revisited, will be submitted for the Subcommittee's record.

Related posts are in the federal legislation and habeas index.

Biros Executed in Ohio Using 1-Drug Lethal Injection

The initial AP report is, "Ohio executes inmate with 1-drug lethal injection."

Ohio has executed a convicted killer through the first U.S. lethal injection using a single drug, a longer but supposedly less painful method than previous executions with three drugs.

Kenneth Biros (BY'-rohs) was pronounced dead at 11:47 Tuesday, about 43 minutes minutes after he entered the death house at the Southern Ohio Correctional Facility in Lucasville.

Ohio changed its execution method from three drugs to a single anesthetic following a failed attempt at putting a different inmate to death in September. Other states still use a combination of three drugs.

The Cleveland Plain Dealer has posted, "Kenneth Biros becomes first inmate executed using single-drug method," by Aaron Marshall.

A Trumbull County man became the first person in American history executed using a single drug instead of a three-drug cocktail.

Kenneth Biros, 51, was pronounced dead today at 11:47 a.m. after being lethally injected in his arms with a single massive dose of barbiturates in the death chamber at the Southern Ohio Correctional Facility in Lucasville.

The single drug is similar to what is used by veterinarians to euthanize animals.

Today's Plain Dealer carries the editorial, "Instead of looking for new ways to perform executions, the state of Ohio should get out of the death business."

Ohio has rarely been known as a public policy innovator, which makes the scenario set to play out today at the Southern Ohio Correctional Facility in Lucasville all the more surprising -- and disturbing.

And:

This editorial board has a long and unapologetic history of opposing capital punishment. That position is rooted in a simple belief that the state should not be in the business of taking life -- especially not through a system prone to human error and arbitrariness.

But even those who support the death penalty ought to have second thoughts about methods of execution that cause unnecessary pain and suffering -- or about which such questions cannot yet be answered. That's why attempting an execution using a method untried on people -- even if it has been recommended by some in the defense bar, including Biros' own attorneys in earlier litigation -- is reason for pause.

Nonmedical prison personnel who can't find a vein for this poison have been told to inject a two-drug concoction into a muscle. That is a heavy burden on them, and a poor way to achieve justice for the people of Ohio.

Instead of looking for new ways to kill, Ohio should take a new approach -- locking up the likes of Kenneth Biros and Romell Broom with no chance of parole and no need to litigate their cases expensively and (almost) endlessly.

Earlier coverage begins with this post.

Beard v. Kindler Decided

The Supreme Court has ruled in the unusual Pennsylvania case.  The AP reports, "Supreme Court tells lower courts to reconsider death penalty for Kindler," via the Los Angeles Times.

The Supreme Court will let lower courts consider reinstating a death sentence for a convicted murderer who twice escaped from prison after being found guilty of killing a man who was planning to testify against him.

The high court overturned a lower court decision throwing out the death sentence against Joseph Kindler for killing one-time accomplice David Bernstein in 1982.

The 3rd U.S. Circuit Court of Appeals had said Kindler's lawyer was ineffective and also found problems with the jury instructions.

State courts had never decided on Kindler's claims. Instead, those courts said Kindler forfeited the right to be heard on those issues because of his escapes.

Chief Justice John Roberts said the state court decision has to be considered by the federal courts.

The ruling is here; the ScotusWiki file, here.  Earlier coverage of the case is here.  Lyle Denniston will post a report at SCOTUS Blog, following this morning's oral arguments at the Court.

Franklin Zimring on the American Law Institute's New Capital Punishment Position

Zimring's commentary for the National Law Journal is, "Pulling the plug on capital punishment."  He is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the UC Berkeley School of Law.

Not all the important turning points in America's epic struggle over the death penalty get noticed immediately by the mass media and the public. A quiet blockbuster this year was the decision of the American Law Institute, a little-known but prestigious organization of lawyers and judges, to withdraw its approval for the standards created by the institute's 1963 Model Penal Code to guide juries in the choice between long prison terms and execution.

Ordinarily, the decision of a non-governmental organization to reject a sentencing system it adopted in the early 1960s would richly deserve public obscurity. With states like New York and Massachusetts turning back efforts this decade to revive capital punishment, and with New Jersey and New Mexico abolishing their death penalties, why pay much attention to the American Law Institute? Because the institute has pulled the intellectual rug out from under the current system of deciding between life and death in 30 death-penalty states.

By an accident of history, the American Law Institute's death-penalty standards became the dominant system used in the United States. When the institute was considering its great criminal law reform effort in the 1950s, the 35 states that mandated death as a penalty for murder required juries to choose between imprisonment and execution for first-degree murder with no explicit legal standards or substantive guidance. That system would have been a problem for the criminal law experts advising the Model Penal Code, but they had much larger objections to the death penalty: They voted, 18-2, that the Model Code should reject death as a state punishment and never discussed how juries should choose a penalty they rejected on the merits. The institute's governing council decided instead that the Model Code should take no position on death as a punishment.

And:

The states with death penalties showed no interest in any form of death penalty regulation until the U.S. Supreme Court rejected all standardless death sentences in the 1972 case of Furman v. Georgia. The Furman decision motivated many states to copy the structure of aggravating and mitigating circumstances from § 210.6 as an attempt to get around the Supreme Court's objections. When the Court approved Georgia's Model Penal Code-style system in the Gregg v. Georgia decision of 1976, the institute's § 210.6 pattern of procedure became the dominant method of life versus death decision-making. Most states distorted the institute's restrictive intentions by adding long lists of their own aggravating factors and failing to create meaningful systems of appellate review. So the forms of standards embraced by the Supreme Court in Gregg v. Georgia were a false promise from day one.

For three decades, however, the Amer­ican Law Institute was silent about the Frankenstein monster it had helped create. Then, this past spring, the institute's members proposed the withdrawal of approval of § 210.6, a step the governing council approved this fall. Having seen the system in action, the institute now seeks disengagement from the legal machinery of American capital punishment.

Now that the creators of the modern system of death penalty sentencing have disowned that system, there is no support for distinguishing the current death penalty lottery from the lawless system that Furman condemned. The apparatus that the Supreme Court rushed to embrace in 1976 has been exposed as a conspicuous failure. What might this portend for the future of the penalty?

There is little prospect that state execution is in any imminent constitutional danger, because it is unlikely that a Supreme Court of John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr. will soon acknowledge the failure of the Gregg v. Georgia experiment. But the loss of legitimacy among the legal establishment is a major threat in the middle-term future.

The declining legitimacy of the death-penalty system in the legal profession must trouble all but the most extreme justices. The Supreme Court's close association with state killing has never been a comfortable one, and the collapse of any pretense of principle to support the system of death-penalty sentencing will eat away at the Court's toleration of execution. No matter its political power, an execution system without principle cannot long survive in a government committed to the rule of law.

Earlier coverage is here.  An ALI statement on the issue, from Executive Director Lance Leibman, is here. The ALI report on capital punishment, here.

Supreme Court Won't Block 1st US 1-Drug Execution

That's the breaking news bulletin from the Associated Press.  It's written by Andrew Welsh-Huggins and datelined Lucasville, Ohio.  LINK

The U.S. Supreme Court has refused to block the execution of an Ohio condemned killer who would become the first person in the U.S. to die by lethal injection with a single drug rather than a three-drug method.

In a brief statement Tuesday, the court said it was denying Kenneth Biros' request for a stay of execution.

Biros had argued the state's new method would be painful. The state's switch to one drug was meant to end a lawsuit that claims the three-drug system could cause severe pain, and experts have agreed that the single anesthetic will not cause pain.

Earlier coverage begins with this post.

Sunday's Youngstown Vindicator carried the OpEd, "Biros: Today’s spectacle of capital punishment."  It's written by Matthew Mangino, a former district attorney and a columnist for Pennsylvania Law Weekly. 

During the 19th century executions were public spectacles. Hangings were often witnessed by large crowds. Children propped on their parent’s shoulders to see the last bit of life strangled out a convicted criminal. The last public execution in the United States was carried out on Aug. 14, 1936 in Owensboro, Kentucky. It was reported that nearly 20,000 people crowded around the gallows to witness the execution of Rainey Bethea. He was convicted of the rape and murder of a 70-year-old woman.

The murder was committed on June 7, 1936. Bethea pled guilty, was sentenced and his state and federal appeals were disposed of by Aug. 5, 1936. He was executed a little more than a week later. The state of Kentucky was portrayed in a less than favorable light by the throng of media that descended on Owensboro for the hanging. The Kentucky legislature, embarrassed by the unfavorable attention, moved to abolish public executions.

In the years leading up to Owensboro, in many towns across America, the actual execution was the jaw-dropping spectacle that attached itself to the ultimate punishment meted out by the criminal justice system. In modern America, the spectacle is not the execution, those are conducted behind prison walls, but rather the incongruous legal maneuvering that results in endless delays and intense pain for the family and friends of victims.

Kentucky To Keep Three-Drug Lethal Injection

AP reports, "Ky. to stick with 3-drug execution protocol," via Kentucky.com.  The report is by Brett Barroquere.

Kentucky plans to keep using a three-drug cocktail on death row inmates and won't use Ohio's novel one-drug overdose method, as officials work through legal hurdles so executions can resume in the state.

Kentucky Justice and Public Safety Cabinet spokeswoman Jennifer Brislin told The Associated Press on Monday that the current protocol will be put through public hearings as the state seeks to comply with a Kentucky Supreme Court ruling.

"We're filing to put our existing protocol into place," Brislin said.

The state's high court ruled 4-3 last month that Kentucky didn't properly adopt it's lethal injection protocol and barred any executions until the method was redone. The ruling didn't challenge the technique that has passed U.S. Supreme Court scrutiny and is used by dozens of other states. State officials will not appeal that ruling.

Kentucky injects condemned inmates with sodium thiopental, a fast-acting sedative; pancuronium bromide, which causes paralysis; and potassium chloride, which causes cardiac arrest.

And:

Kentucky's process for approving the lethal injection protocol includes a public hearing as well as a chance for the public to comment by e-mail or letter about different aspects of the protocol.

The Department of Corrections then can respond to those comments. Various legislative committees can review the protocol, though it's ultimately up to Gov. Steve Beshear to re-adopt the procedure.

Courts around the country have split over whether states should have to follow the administrative procedures in adopting a lethal injection protocol. Courts in Maryland, Nebraska and California have found that the administrative procedures requirement applies to lethal injection, while courts in Missouri and Tennessee ruled that it doesn't.

Kentucky's three-drug protocol also is under attack in federal court by five inmates who are challenging the protocol, the practice of giving Valium to inmates before an execution and how the state acquires the drugs used.

Kentucky has 35 death row inmates. The state has executed three men since reinstating the death penalty in 1976, most recently in November 2008.

Earlier coverage from Kentucky begins here.

The Case of Henry Skinner

"Death-Row Inmate Sues Prosecutor, Seeks DNA Test," is the title of By Mary Alice Robbins' report for the current issue of Texas Lawyer.

A Texas death-row inmate facing execution next year has sued a Panhandle prosecutor, alleging she is denying him access to DNA evidence that has never been tested and could prove he is innocent of murdering three people in 1993.

Henry Watkins Skinner alleges in his original complaint in Skinner v. Switzer that the refusal by Lynn Switzer, district attorney for the 31st and 223rd Judicial Districts, to release the biological evidence for testing violates Skinner's 14th Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. Skinner sued Switzer on Nov. 27 in the U.S. District Court for the Northern District of Texas in Amarillo.

In the complaint, Skinner asks the court to declare that continued withholding of the DNA evidence violates his constitutional rights. He seeks an injunction requiring Switzer to release certain biological evidence to him — including vaginal swabs and fingernail clippings from the female victim, any biological material on two knives found at the murder scene, and blood and hairs on a jacket found next to the female victim's body — so Skinner can test it at his own expense.

University of Texas School of Law clinical professor Rob Owen, Skinner's lead counsel, says Skinner needs to have the evidence tested to file a meaningful application for clemency.

"I think if the testing is allowed, it will give rise to a new habeas claim in the state courts," says Owen, co-director of the UT law school's capital punishment clinic.

As an example, Owen points out that testing of the vaginal swabs from the female victim's rape kit might show that another person besides Skinner had sexual contact with her.

Switzer, DA since February 2005, did not return two telephone calls seeking comment before presstime Dec. 3.

According to TDCJ, Skinner has a February 24, 2010 execution date.  Texas lawmakers provided a means for post-conviction access to DNA testing in 2001.  It is detailed in Chapter 64 of the Texas Code of Criminal Procedure.

Cost an Issue as New Hampshire Study Commission Begins Work

The New Hampshire Commission to Study the Death Penalty met Friday and cost was the prime topic of discussion.  The site has links to earlier study commissions conducted in other states.

"Addison trial cost state nearly $3m," is the title of Kevin Landrigan's report for the Saturday edition of the Nashua Telegraph.

The taxpayer cost to prosecute, defend and sentence William “Stix” Addison for the October 2007 murder of a Manchester police officer has reached nearly $3 million and will grow by half a million dollars a year while he appeals the verdict.

Meanwhile, state prosecutors spent $2.4 million to convict John Brooks, of Londonderry, for ordering the 2005 murder of a Derry handyman.

The jury turned down the state’s bid to apply the death penalty and instead Brooks is now serving serve life in prison without the possibility of parole.

The Commission to Study the Death Penalty in New Hampshire spent Friday examining the costs to carry out capital punishment.

The state hasn’t executed anyone since 1939 and it’s a rare event that two capital murder cases went all the way to the jury in the past two years.

Retired, Superior Court Chief Justice Walter Murphy said gauging the cost to execute someone versus life in prison without parole is a key charge the Legislature gave this commission.

“We appreciate the cost is not driving anything here, but I think there is a public perception that somehow the prosecution of someone for a non-capital offense is cheaper,” said Murphy who chairs the commission.

The commission learned Friday it will be difficult to come up with all those costs.

“It may be that we will come to the conclusion that we can’t tell,” Murphy said.

Deputy Attorney General Orville “Bud” Fitch said it has cost $1.6 million already for the prosecution in the Addison case. This does not include costs spent by local and state police to investigate and testify in the matter.

Addison is indigent, so the state paid for his defense.

NH Public Defender Executive Director Christopher Keating told commissioners that by next June 30 the state will have spent $1.3 million to defend Addison and appeal his verdict to the state Supreme Court. Keating estimates the defense will spend about $400,000 each year on Addison’s appeal. Fitch said the AG’s office couldn’t give an estimate on what their appeal expenses will be. Judicial Council Executive Director Nina Gardner said added to defense costs are earlier expenses the state incurred defending Addison against other felony crimes that led up to the murder.

By comparison, Gardner estimates her office spends $70,000 to $100,000 in costs to defend someone charged with murder in the first degree, a crime that does not carry death as an ultimate punishment.

Costs on both sides vary greatly with the circumstances of the crime, Fitch stressed.

The Sea Coast Online website carries an abbreviated version of Landrigan's report as, "Death penalty costs N.H. millions."  This quote is from Richard Dieter, Director of the Death Penalty Information Center:

"One of the reasons states are moving away from it is it is a frustrating and costly process," Dieter said.

State and national studies prompt Dieter to conclude government costs on these cases can run as high as $30 million annually in states that charge many offenders with a capital crime.

Last year, the Urban Institute did the most recent state study for a similar death penalty commission in Maryland.

It concluded that state spent $186 million over 20 years that resulted in the execution of five offenders. That works out to $37 million per offender.

The Concord Monitor reports, "Counting costs in death penalty cases," by Annmarie Timmins.

Setting aside the more complicated moral and legal arguments yesterday, a group tasked with assessing the merits of the state's death penalty took up a less emotional assignment.

What does it cost a state to prosecute a death penalty case and put someone to death?

They're not easy questions. New Hampshire, which has spent more than $5.3 million on the two capital cases it litigated last year, has only begun to answer them.

Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, D.C., told the study panel the average cost for one execution is $30 million.

Dieter said his estimate contrasts the millions of dollars spent nationwide on dozens of capital cases against the small number of such cases that actually end in execution.
As an example, he cited Maryland, which spent $186 million over 20 years prosecuting death penalty cases. Of those, five ended in execution, putting each execution at $37 million, he said.

In another study, New York spent $170 million on capital cases over nine years and had no executions, he said. New Jersey spent $253 million on capital cases over 25 years without an execution, he said.

Both states have abolished the death penalty.

"I think one of the most common misperceptions is the notion that (the death penalty) saves money because the executed defendant doesn't have to be cared for at the state's expense," he said. "Sums like these are causing officials to rethink the wisdom of such expenditures."

After the state attorney general's office prosecuted two death penalty cases last year and won a death sentence in one and a life sentence in the other, the Legislature appointed a group to study the merits of New Hampshire's death penalty law.

The 20-member group is led by retired judge Walter Murphy and includes lawyers, law enforcement officials, legislators and two men whose fathers were murdered.

Members have about a year to consider several complex questions, including whether the death penalty deters crime, is used arbitrarily and covers the appropriate crimes.

Currently, murder for hire or during a rape, kidnapping or drug transaction are eligible. So is the murder of a police officer or judicial officer. The murder of children or multiple people is not eligible unless the crime meets the above criteria.

Committee members must also explore whether there are better alternatives to the death penalty and how much more the state spends on a capital case than a first-degree homicide case - where conviction means a life sentence.

It was the last question that was on yesterday's agenda.

And:

A few members asked questions yesterday but most listened, and none offered direct opinions on the state's death penalty law.

Arnie Alpert, the state's program coordinator for the American Friends Service Committee and a member of the state Coalition to Abolish the Death Penalty, is attending the hearings.

He hopes the members, especially those who came to the group with a position on the death penalty, will be open to the information they receive.

The panel will meet next Feb. 5 at 10 a.m. The location has not been determined.

Earlier coverage from New Hampshire is here.  Related posts in the cost and study commission indexes.

Live Webcast - UPDATED

UPDATE - Archived streaming video of the December 7th news conference in the Speaker's Committee Room is available for viewing, using Real Player, here.

TCADP's 2009 annual report is here, in Adobe .pdf format.

The Texas Coalition to Abolish the Death Penalty is about to hold a Texas State Capitol news conference to release its 2009 annual report.  You can watch the webcast from the Speaker's Committee Room, here.

More on Texas Arson Cases From Dave Mann

The Texas Observer journalist writes, "Fire and Innocence," for the November 27th issue.  It's an extensive article and a must-read.  Here's the beginning:

Gerald Hurst is one of the nation’s foremost authorities on fire and explosives. At age 72, he’s tall and lean, with graying hair combed back on his head and a white beard—think Santa Claus after a Nutrisystem diet. Within minutes of welcoming me into his West Austin home in the fall of 2008, he had me hooked, recounting vivid, head-scratching stories of person after person who’d been wrongly convicted of arson.

That was what I’d come to hear. I had developed a fascination with arson cases—specifically, with the methods fire investigators used to distinguish intentionally set fires from accidental ones. Until recently, the process was more art than science. And in many places, it still is. Fire investigators long worked from a basic set of assumptions about how buildings burn—“old wives’ tales,” as Hurst calls them, passed from one generation to another. For decades, they walked into the remains of charred buildings in search of the same clues to arson: furniture and windows buckled by extreme heat; burn patterns on the floor caused by an accelerant like gasoline; and other markers that were supposed to indicate that a fire had spread, quickly and wildly. They took those markers to mean that a fire had been ignited on purpose. And then they used the evidence to send thousands of people to prison.

But many of the investigators’ assumptions have turned out to be wrong. Over the past 15 years, the forensic science of arson has undergone a revolution led by experts like Hurst. With nearly 800 people serving time for arson convictions in Texas prisons alone, the wider implications aren’t hard to grasp. It now appears that hundreds of Texans have been wrongly convicted on the basis of outdated and inaccurate forensic evidence. Nobody knows exactly how many, because no one’s looked comprehensively at the cases of those in prison for arson. I wanted to dig into as many of those cases as I could. Hurst liked the idea, and he offered to help examine any suspicious cases I could turn up through court documents and police records.

Hurst, who holds a doctorate in chemistry from Cambridge University, spent most of three decades working in the private sector as a fire and explosives expert. He also worked as an expert for hire in civil cases, usually insurance disputes over the cause of a fire. His first exposure to the shoddy forensic science being used as evidence in criminal cases came only about a decade ago. Hurst was asked to examine the evidence used to convict a Fort Stockton woman named Sonia Cacy, sent to prison in 1993 for allegedly killing her uncle in a house fire. Hurst and his wife drove to West Texas to meet Cacy. On the way, Hurst read through her case file. He was shocked to see the flawed, outdated forensics that had been used in this capital murder case. Cacy was innocent, and Hurst’s testimony ultimately helped exonerate her. She was released in 1998 after serving six years of a 99-year sentence. It also gave him a new mission. Since the late 1990s, Hurst has testified, pro bono, in dozens of arson cases around the country as an expert witness for the defense. In Texas, he helped exonerate Ernest Ray Willis, who spent 17 years on Death Row for a fire he didn’t start.

But Hurst has gained the most notoriety for his work on the now-infamous Cameron Todd Willingham case. Willingham was convicted of arson murder for allegedly starting a 1991 fire at his North Texas home that killed his three daughters. Just weeks before Willingham’s execution in 2004, Hurst was asked to look at the evidence. He saw immediately that investigators had used outdated assumptions to convict Willingham. Working against the clock, he hurriedly wrote a report that debunked much of the physical evidence. Hurst concluded in his report that “most of the conclusions reached by the Fire Marshal would be considered invalid in light of current knowledge.” (You can read the whole report here.) Willingham’s lawyer faxed the report to Gov. Rick Perry’s office hours before the scheduled lethal injection. Because the governor’s office has refused to release relevant documents, it’s unclear what, if anything, the governor’s staff did with Hurst’s report or whether Perry ever saw it. But the governor let the execution go forward.

Hurst was the first fire-science expert to review the case. Since Willingham was put to death, eight more of the nation’s leading fire scientists have examined the evidence. Every one of them has agreed with Hurst that the forensics were outdated and that the fire was likely accidental. That would mean Texas almost certainly executed an innocent man.

And:

The Willis and Willingham cases are not unique; they just happen to have gained wide public attention. Hurst has seen many cases in which the forensic evidence was as bad or worse. In the basement of his Austin home, he continues to dig through case files submitted by attorneys and families across Texas and the nation. In the last two weeks of October alone, he received requests to examine a half-dozen arson cases. Some of the defendants are obviously guilty, he says. Other cases have flaws that leave questions about the defendants’ guilt. But in about half the cases he sees, fire investigators have conjured arson evidence that is so obviously wrong—based on ludicrous theories and long-disproved methodologies—that it would almost be funny, he says, if someone weren’t sitting in jail because of it.

“Older cases, you can pretty much assume it’s probably a bad case,” Hurst says. “But new cases come in too, and only a small percentage of them are really good cases—I mean where they’ve done their homework, eliminated accidental causes and pretty well established arson. But I don’t see many. I see [investigators] doing some of the same things they were doing in the ’80s.”

The article contains the following chart:

Mann's earlier enterprise reporting begins with this post.  His coverage of the Senate Criminal Justice Committee meeting last month is here.

Three Steps Away From Death

That's the title of Tim Chitwood's column from the Sunday edition of the Columbus Ledger-Enquirer of Georgia.  LINK

In three steps, Georgia kills a man.

Carlton Gary will be the 24th to die of lethal injection, says the Department of Corrections, which scheduled his execution for 7 p.m. Dec. 16.

That puts him in line behind Mark McClain, executed Oct. 20 for the 1994 murder of an Augusta, Ga., man shot during a robbery.

McClain died quietly, according to witnesses, so in his case Georgia’s triple death cocktail worked as intended, apparently.

But that can be hard to tell, say critics of lethal injection, which replaced electrocution in 2001.

Georgia intravenously injects three drugs. The first sedates. The second paralyzes. The third kills.

Critics say the sedative may be insufficient or ineffectively administered. If the inmate regains consciousness after the second drug, observers may not be able to tell because he is paralyzed, unable to breathe. The third drug gives him a heart attack.

The three chemicals are: sodium pentothal, the sedative; pancuronium bromide, the paralytic; and potassium chloride, the killer. The intention is to put the inmate to sleep, paralyze his body so it shows no death throes, and then stop his heart. A saline solution flushes the IV line before, between and after the chemicals.

If the first course doesn’t kill, a second follows.

And:

Those challenging Kentucky’s method of lethal injection, which employs the same three drugs as Georgia’s, argued that an overdose of sodium pentothal is sufficient to cause death without risking pain from the other two drugs.

The courts ruled the standard for such a challenge is not merely “an unnecessary risk of pain,” but a “substantial risk” or an “objectively intolerable risk of harm.”

Ohio Prepares for Single-Drug Lethal Injection

Kenneth Biros is scheduled to be executed by Ohio tomorrow morning.  Attorneys for Biros are challenging the new procedure.  Here's a roundup of the latest developments.

"Judge In Ohio Rejects Stay In 1st 1-drug Execution," is the AP report filed earlier this morning.  It's written by Andrew Welsh-Huggins.

A federal judge on Monday denied an emergency delay in the execution of an Ohio inmate scheduled to become the first person in the U.S put to death with a single drug.

In the ruling, U.S. District Judge Gregory Frost in Columbus said Ohio's execution system still has flaws that "raise profound concerns and present unnecessary risks." But the judge also wrote, it appears unlikely that Kenneth Biros can "demonstrate that those risks rise to the level of violating the United States Constitution."

Biros, 51, is set to die Tuesday for killing and dismembering a woman he met in a bar in 1991. It would be the first lethal injection under Ohio's switch from using three drugs to a new one-drug execution method.

The next step would be an appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati. That court on Friday refused to delay the execution but indicated that it anticipated further appeals. Biros' attorney, Timothy Sweeney, did not immediately return calls Monday to ask how he planned to proceed.

Yesterday, Welsh-Huggins filed the AP report, "Ohio inmate to get 1-drug, slower execution."  It's via Google News.

Condemned killer Kenneth Biros could become the first person in the country put to death with a single dose of an intravenous anesthetic instead of the usual — and faster-acting — three-drug process if his execution proceeds Tuesday.

The execution could propel other states to eventually consider the switch, which proponents say ends arguments over unnecessary suffering during injection. California and Tennessee previously considered then rejected the one-drug approach.

Though the untested method has never been used on an inmate in the United States, one difference is clear: Biros will likely die more slowly than inmates put to death with the three-drug method, which includes a drug that stops the heart.

Lethal injection experts on both sides of the debate over injection say thiopental sodium, which kills by putting people so deeply asleep they stop breathing, will take longer.

How much longer is unclear: Mark Dershwitz, an anesthesiologist who advised Ohio on its switch to the single drug, has written death should occur in under 15 minutes.

Ohio inmates have typically taken about seven minutes to die after the three-drug IV injection, which combines thiopental sodium with the drugs pancuronium bromide — which paralyzes muscles — and potassium chloride, which causes cardiac arrest. Dershwitz also said in a court filing last week that a single dose of thiopental sodium would take longer than the three drugs, though he didn't specify a time.

The switch from three drugs to one was ordered last month because of the state's botched attempt on Sept. 15 to execute convicted rapist and killer Romell Broom. His executioners tried unsuccessfully for two hours to find a usable vein for injection, painfully hitting bone and muscle in as many as 18 needle sticks. Gov. Ted Strickland halted the execution.

Broom, 53, has appealed the state's attempt to try again.

Ohio officials contend the single-drug method should end a five-year-old lawsuit against the state that claims injection can cause inmates severe suffering.

Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain.

And:

All 36 death penalty states use lethal injection, and 35 rely on the three-drug method. Nebraska, which recently adopted injection over electrocution, has proposed the three-drug method but hasn't finalized the process.

States with active death chambers are keeping an eye on Ohio's switch but have no immediate plans to switch. Florida, South Carolina, Texas and Virginia are among those keeping the three-drug system for now.

"Virginia's method has been successfully used in over 75 executions and repeatedly been upheld as constitutionally acceptable," state prisons spokesman Larry Traylor said Friday.

States will likely watch Ohio's experience and the court challenges before making a decision, said Richard Dieter, executive director of the Death Penalty Information Center.

The U.S. Supreme Court said last year that states would only have to change the three-drug process if an alternative method lessened the possibility of pain. Defense attorneys have also supported the one-drug option, reducing the possibility of legal challenges, Dieter said.

If Ohio is successful "in making this transition, and if a few other states follow that lead, I think we will see the majority of states changing to this method of lethal injection," Dieter said.

Biros' attorneys want his execution delayed, saying the new untested method has never been used in "any other civilized country" and would amount to human experimentation. But the same attorneys earlier advocated for the state to switch to the one-drug method.

"Biros prepares for death," is the title of Bill Rodger's article in today's Warren Tribune Chronicle.

While Kenneth Biros' attorneys continue to argue publicly against his lethal injection sentence, the murderer quietly has been preparing to die.

''He doesn't seem that concerned about himself. I think his interest is in spiritually repairing the harm that he's done,'' said Bradley Butters.

Butters is one of two Buddhist prison outreach volunteers the convicted Trumbull County killer has asked to witness his execution. Butters, from Columbus, first met Biros three years ago in a meditation class for inmates at Ohio State Penitentiary.

Butters and Eric Weinberg initially volunteered to go to the prison and work with the prisoners for one year. Over that year, many of the inmates appeared to lose interest except for a handful of prisoners, and Biros who, Weinberg stated in a short essay, was one of the ''rare ones'' who took the lessons to heart. After the year was over, Butters and Weinberg became ''ministers of record'' with the prison so they could continue their meetings with Biros.

And as Biros learned more, he became less self-centered and has taken responsibility for his crimes, Weinberg has written.

Marc Kovac writes, "What lies ahead for Biros' final day?" for today's Youngstown Vindicator.

The Death House at the Southern Ohio Correctional Facility is a lone, nondescript brick building, detached from the main prison.

It’s the place where 32 Ohio inmates have been put to death since 1999, starting with Cuyahoga County murderer Wilford Berry Jr.

It’s the place Kenneth Biros, convicted in a gruesome 1991 murder in Trumbull County in which the victim was brutalized and dismembered, will take his last breaths, barring court intervention.

Biros’ execution is set for 10 a.m. Tuesday .

He is scheduled to make the trip from the Ohio State Penitentiary in Youngstown to the Southern Ohio Correctional Facility in Lucasville this morning and will likely arrive at the prison Death House between 9 and 10 a.m.

He’ll be under constant observation by at least three execution team members the entire time he is on site, state prisons spokeswoman Julie Walburn told reporters during a media open house at the facility late last month.

Inmates spend most of their last 24 hours in a small cell that includes a bed, toilet and sink, television, compact disc player and Bible or other holy book. There are four narrow windows that can be cranked open, on request, to provide more air flow. There’s also a telephone directly outside the cell, from which the inmate can make calls.

And:

About 15 minutes before the execution, the warden approaches the cell door and reads the death warrant to the prisoner. Then, volunteers enter the holding cell and attempt to insert IV shunts, to be used to carry the lethal injection.

Under the state’s new execution protocol, they can establish one or two shunts, starting with the “joint between the upper and lower arm” as the preferred injection site.

“We do not put a time limit on them,” Walburn said of the process. “We don’t want them to feel rushed in doing that. They take a lot of effort to do their jobs professionally and compassionately. And so they take a lot of time in inserting those IV lines appropriately.”

Inmates then make their final 17-step walk to the execution chamber, where they are strapped to a bed.

Witnesses observe from a small room, separated from the death chamber by a glass. The witness room is separated by a wall, with the victim’s family seated closes to the inmate’s head and others sitting at his feet.

Earlier coverage from Ohio begins with this post.

Kentucky Halts Lethal Injection Until Hearings

That's the title of an AP report via Sunday's New York Times.  LINK

Executions are suspended in Kentucky after the state said Friday that it would not appeal a ruling that found it had failed to follow proper administrative procedures when it adopted its lethal injection method.

The state must hold public hearings on the injection method before it can resume executions.

The Kentucky Supreme Court’s 4-to-3 ruling last month did not challenge the technique that has been upheld in the nation’s highest court and is used by dozens of states. It said the state did not use the proper process for putting it into place.

The court said the state must hold the hearings and take public input on the injection technique.

Jennifer Brislin, the Kentucky Justice and Public Safety Cabinet spokeswoman, told The Associated Press on Friday that the state would file paperwork this month to start the public hearing process. Ms. Brislin said the state would have faced a lengthy appeals process in court if it had tried to fight the ruling. Ms. Brislin was not sure how long it might take to readopt the protocol.

Three death row inmates had challenged how the lethal injection protocol was adopted.

The court’s decision came just days after State Attorney General Jack Conway requested execution dates for three inmates, including Ralph Baze, who was a plaintiff in the lawsuit.

Mr. Baze, 54, who is awaiting execution for the deaths of a sheriff and a deputy, had previously challenged Kentucky’s lethal injection method in a case that rose to the United States Supreme Court and led all the states using a similar method to halt lethal injections until it was upheld.

Coverage of the Kentucky Supreme Court ruling is here.  The U.S. Supreme Court's 2008 ruling in Baze v. Rees is via Oyez.  Related posts are in the lethal injection category index.

News From New Mexico

Today's Albuquerque Journal has two news articles of interest.  First, Scott Sandlin reports, "Court Adds Jury To Capital Cases."

New Mexico repealed the death penalty effective July 1.

But for the handful of existing or potential capital cases unaffected by the repeal, including Michael Paul Astorga, the New Mexico Supreme Court has ordered a new way of trying capital cases.

Apparently responding to concerns about the fairness of the process raised in a rash of recent briefs in death penalty cases, the court said a defendant may choose to have one jury for the guilt/innocence phase and, if there is a conviction, a separate jury for the penalty phase.

New Mexico is the first state in the nation to do so, according a leading death penalty defense attorney.

The draft rule was published Oct. 26 in the Bar Bulletin. Only two comments were received, from the New Mexico Criminal Defense Lawyers Association and the New Mexico Attorney General's Office, taking opposing positions.

The rule became final this week.

Gary Mitchell, the Ruidoso attorney defending death penalty defendants Astorga and William Watson already has filed notices in both cases anticipating the rule.

Astorga is accused of the March 22, 2006, fatal shooting of Bernalillo County Sheriff's Deputy James McGrane Jr. during a traffic stop in Tijeras. Watson is a Roosevelt County farmer accused in a 2005 murder conspiracy.

"This decision has national impact," Mitchell said. "It's the first time anybody has dealt with the problem."

The problem identified in research by the Capital Jury Project and other research is that "death-qualified" juries of people who can impose the death penalty are more prone to vote for conviction than a non-death-qualified jury.

"Under the old system that the Supreme Court is now changing you have people judging you who have sworn under oath that they could kill you," Mitchell said.

"What this means for Watson and Astorga, whom I believe are innocent of these charges, is they get a more balanced jury," he said.

District Attorney Kari Brandenburg, who was at the Legislature at the time the rule proposal was floated in October, said her office did not respond. She said even the Capital Jury Project research showed one of the reasons jurors gave for not imposing a death sentence was the information they gleaned during the initial trial.

And:

The first roll-out of the new procedure is now slated for Jan. 23, when Ninth Judicial District Judge Drew Tatum is scheduled to begin Watson's trial in Portales. It is currently scheduled for four weeks.

The Journal also reports crime lab problems in New Mexico.  The article is, "Lab Suspends DNA Testing," by Jeff Proctor.

DNA testing has been shut down at the State Police crime lab in Santa Fe for more than a month, leaving a backlog of 124 cases, officials confirmed Thursday.

The testing ceased after the New Mexico Forensic Laboratories' accreditation lapsed at the end of October, state Department of Public Safety spokesman Peter Olson said.

Olson said 48 cases have come in since testing stopped. Those are included in the backlog of cases, two of which will have gone past their court deadlines by the time officials hope to regain accreditation on Dec. 10.

Lemuel Martinez, 13th Judicial district attorney in Los Lunas, said he just learned of the shutdown from a Journal reporter on Thursday.

"This could be a blow to every district attorney's office across New Mexico, as well as law enforcement," he said. "To not have that service readily available will really be terrible for the entire criminal justice system. I just hope no cases fall through the cracks."

Bennett Baur, the Santa Fe district public defender and president of the New Mexico Criminal Defense Lawyers Association, called the halt in testing "concerning."

And:

The lab handles DNA evidence for every jurisdiction in New Mexico other than Bernalillo County — about 50 percent of the state's caseload, which comes from more than 200 law enforcement agencies.

Olson said the lapse in accreditation happened near the end of a yearlong process during which state officials were aiming for a more stringent, internationally accepted accreditation.

The accrediting body had required state officials to meet several "technical standards," he said. He did not elaborate on what the standards were, but said the lab didn't meet the auditor's deadline of Oct. 29, and the accreditation lapsed.

So, state officials decided to stop testing, Olson said, because the FBI requires labs to be accredited in order to enter DNA results into the bureau's Combined DNA Index System, or CODIS, database.

"We made the voluntary decision to cease testing because we want to be able to enter our results into CODIS," he said, adding that he wasn't aware of any state laws that require a lab to be accredited for DNA to be admissible in court.

Pat Davis, spokesman for the Bernalillo County District Attorney's Office, said his office typically doesn't accept DNA evidence from unaccredited labs.

The accrediting board meets on Dec. 10, Olson said, and state officials are "extremely confident" the lab will regain its accreditation after that meeting. DNA testing will resume at that point, he said.

Life Without Parole Is Worse Than Execution

That's the title of a Dwight Lewis column in the Tennessean.  Lewis is also a member of the paper's editorial board.  LINK

They say good newspaper columns should read like you're listening to some good music. But how do you write such a column when the state has just taken a man's life?

And more importantly, how do you write such a column when you've spoken out over the years against the death penalty, raising such questions as what does it prove for the state to take someone's life?

With Wednesday morning's execution of 53-year-old Cecil Johnson Jr. by lethal injection, Tennessee has now executed six condemned convicts since 2000. Before that, no one had been executed in the state since William Tines was put to death in the electric chair in 1961.

"They won't get a chance to kill again,'' proponents of the death penalty have told me over the years. "That's why you execute them.''

But what if they're wrong about the person put to death? What happens if it's later discovered the person executed was wrongly convicted? What do you do then? How does a state or federal government say "we're sorry?''

In Johnson's case, most people will say the state convicted and executed the right person. It's even hard for me to believe that Cecil Johnson could have been wrongly convicted.

I was in the Davidson County courtroom Jan. 19, 1981, when a jury of nine men and three women announced after deliberating 90 minutes that they had found Johnson guilty of committing three murders, two robberies and two counts of assault with intent to commit murder.

And:

Of all the columns I've written about executions, this has been the toughest to write.

Not only was I in the courtroom that day, but I know the slain youngster's daddy. Observing him over the years, you can see how his son's death has taken him down. But I also have worked with a brother of Cecil Johnson here at The Tennessean.

What a tragedy. Lives were taken unnecessarily during the robbery in 1980 and a life was taken early Wednesday by the state of Tennessee.

Many people will say Cecil Johnson has now paid the cost for the crimes he was convicted of committing.

Perhaps so, but if he really committed that horrible crime, why not just let him spend the rest of his life rotting to death in prison?

Earlier coverage of the Johnson case begins here.

Additional Coverage of the Woods Execution

Chris McGreal writes, "Texas executes man at centre of mental disability row," for the Guardian.  It's datelined Washington, DC.

Texas has executed a child killer at the centre of a bitter dispute over what defines legal mental impairment after several courts ruled that he could be put to death despite a low IQ.

Bobby Wayne Woods, 44, was killed by lethal injection for raping and murdering his girlfriend's 11-year-old daughter after the US supreme court denied a last minute appeal by lawyers who argued that the condemned man fell within a ruling by the same court in 2002 that the mentally impaired could not be sentenced to death.

After being told that the supreme court had refused to intervene, Woods' last words were: "Bye. I'm ready."

Tests on Woods in prison put his IQ as low as 68, below the widely accepted cut off for mental impairment of 70. However, in pursuing the death penalty, the state fell back on other tests conducted when he was a child that put his IQ as high as 86.

Maurie Levin, a University of Texas law professor who represented Woods, said that he is "transparently childlike and simple" and described the execution as "a travesty".

Despite the supreme court ruling seven years ago barring the death penalty for the mentally impaired, individual states are left to decide what defines severe learning disabilities. The court said that an IQ test of "around 70" was an indicator but did not set a specific test.

Recent studies have shown that men with IQ scores lower than 70 have been executed in several states, including Texas and Alabama.

AFP filed, "Texas executes low-IQ convicted killer Bobby Woods." 

Earlier coverage begins with this post.

More Problems at HPD Crime Lab

The Houston Police Department Crime Lab was the scene of a multi-year scandal in its DNA unit.  Problems were also reported in other units, as well.  Now, the Houston Chronicle reports, "HPD fingerprint unit is focus of criminal probe."  It's written by Moises Mendoza and Bradley Olson.  It appeared in Thursday's edition.

A Houston Police Department official confirmed Wednesday that a criminal investigation is under way into alleged wrongdoing at HPD's fingerprinting comparison unit, which is under scrutiny following an audit accusing it of shoddy work.

One employee, put on administrative leave with pay after the audit into the unit ended in October, is being investigated for alleged misconduct involving “handling a piece of evidence,” said Tim Oettmeier, an executive assistant chief.

Oettmeier declined to specify what the employee is accused of or name the individual involved.

But he said the allegations emerged after auditors asked employees to do additional work to understand why the unit had such a high error rate. More than half of 548 randomly selected cases involving fingerprints analyzed at the unit have turned up irregularities. Officials released details of the audit on Tuesday.

Meanwhile, Houston's mayor on Wednesday said that criminals likely went free because the fingerprint unit missed prints on evidence. At a news conference, Bill White said he hoped the review would determine how many criminals have been missed.

“I think it's unacceptable the quality of work the chief and the command staff found in the fingerprint unit,” White said.

Two other employees in the fingerprint unit are not accused of criminal wrongdoing but were put on leave as part of the investigation. A third part-time employee resigned under pressure from the department, Oettmeier said.

Consultants are temporarily doing their jobs while officials decide how to train new fingerprint analysts or hire outsiders.

And:

Because the audit found workers often overlooked fingerprints or wrongly determined fingerprints weren't able to be analyzed, authorities are re-reviewing more than 4,000 violent crime cases involving fingerprints from the last six years. They're also trying to work through a 6,000-case backlog that dates back two years and includes violent and property crimes.

After disclosing the results of the audit Tuesday, authorities emphasized that no cases have been found in which suspects have been wrongly identified because of faulty fingerprint analysis.

They have declined to release the audit publicly, citing the ongoing investigation.

Oettmeier said nobody knows what the six-year review will find, but officials could go back further if evidence of vast irregularities emerge, such as numerous cases of criminals going free or any misidentifications.

“We're not saying that we don't believe there will be false identifications. We are saying we don't know. We have an obligation to look,” Oettmeier said.

Also:

It has also spawned renewed discussion about the need for an independent center to analyze forensic work, possibly including fingerprints.

Much forensic evidence across the country, such as fingerprints or DNA, is analyzed by labs closely tied to law enforcement despite the inherent conflicts of interest, said UCLA law professor Jennifer Mnookin.

Another problem: There are varying standards for how fingerprint analysts are trained and prints are analyzed, meaning some labs are more accurate than others.

“This provides yet another example for why developing validated, research-based models for the field would be a very good idea,” Mnookin said.

Coverage of the DNA unit scandal begins here.  Related posts are in the crime lab category index, including more on fingerprint analysis, here. 

Selective Empathy

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

Bureau of Justice Statistics Capital Punishment Numbers for 2008 Available

The Crime Report posts that the Department of Justice publication is online.  LINK

The Bureau of Justice Statistics has just released statistics on capital punishment in 2008. According to the report, 37 prisoners were executed in 2008—36 by lethal injection and one by electrocution. All those executed were men; 20 were white, 17 black. The report features numerous statistical tables with information including which states have capital statutes and the demographics of prisoners under death sentence.

The report, in Adobe .pdf format, is here; summary findings, here.

Killer With Low I.Q. Executed in Texas

That's the title of James McKinley's report this evening for the New York Times.  LINK

Bobby Wayne Woods was executed Thursday evening in Texas after his lawyers lost a battle to persuade the courts that he was too mentally impaired to qualify for capital punishment.

Mr. Woods, 44, was convicted of raping and killing an 11-year-old girl in 1997. He received a lethal injection and was pronounced dead at 6:48 p.m. in the death chamber at a state prison in Huntsville, Tex., after the United States Supreme Court denied a request from his lawyers to stay his execution. His last words, at 6:40, were: “Bye. I am ready.”

Tests administered to Mr. Woods over the years placed his I.Q. between 68 and 86, prompting a bitter debate between his lawyers and the state over whether he was too impaired to face execution. The state and federal courts repeatedly sided with prosecutors.

The debate reflects the gray area left by the Supreme Court in 2002, when it ruled that the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argued that his intelligence scores were low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. Maurie Levin, a University of Texas law professor who represented Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said before the execution. “It’s a travesty.”

In its 2002 ruling, the Supreme Court said that to demonstrate that someone is mentally retarded, one must prove that the person has had low I.Q. scores and a lack of fundamental skills from a young age. The court said a score on intelligence tests of “around 70” indicated mental retardation.

But that standard has been applied unevenly by state courts, according to a study by Cornell law professors. Some state courts in Mississippi, Alabama and Texas have held that inmates with scores as low as 66 are not impaired, while an inmate in California with a score of 84 was declared mentally retarded.

Courts in Texas repeatedly rejected Mr. Woods’s claims of impairment, although the state’s highest criminal court halted his execution last year to allow more hearings. That reprieve was lifted in October, and this week, the Texas Board of Pardons and Paroles voted unanimously to reject a clemency request.

"Texas executes killer of 11 year-old girl," is the title of Michael Graczyk's AP filing, via Google News.

A 44-year-old Texas man was executed Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, making him ineligible for execution, and that previous appeals to spare Woods' life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

As noted above, the U.S. Supreme Court ruled in 2002 that it was unconstitutional to execute offenders with mental retardation in the case of Atkins v. Virginia.  Earlier coverage of the Woods' case begins with this post.

His was the 24th, and final, Texas execution of 2009.  It was the 447th Texas 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 50 executions in the nation this year; 1,186 since 1977.

According to Capital Defense Weekly, executions are scheduled in Ohio, Tennessee, and Indiana before the year ends.   Five execution dates have already been set in Texas for next year.

In the Aftermath of the Simpson Execution

Chuck Lindell writes,"Questions about late death penalty appeal," for today's Austin American-Statesman.

Lawyer David Dow was called before the state Court of Criminal Appeals on Wednesday to explain why he blew a court-imposed deadline by filing an appeal within 48 hours of his client's execution.

The inmate, Danielle Simpson, was executed Nov. 18, but those particulars weren't the main reason a small crowd gathered in the Capitol-area courtroom where the state's highest criminal court normally toils in obscurity. Dow drew an audience because of his role in another late appeal on behalf of convicted murderer Michael Richard, whose 2007 case resulted in misconduct charges that are pending against the court's presiding judge, Sharon Keller.

Richard was not mentioned at the Wednesday hearing, but his presence was felt. Dow was one of the Texas Defender Service lawyers who tried, unsuccessfully, to file a late appeal for Richard in 2007 — leading to charges that Keller improperly closed the court to the inmate on his execution day.

Dow also testified at Keller's August trial on the charges; the judge in that case has not delivered his findings to the State Commission on Judicial Conduct.

Keller did not participate in the hearing and will not join the court's opinion — to be issued at a future, unspecified date, said Judge Lawrence Meyers, who directed the proceedings in Keller's absence.

And:

Dow blamed the missed deadline on a conflict with Simpson's court-appointed lawyer, Wes Volberding, and on what was described as Simpson's increasingly erratic behavior. Simpson variously asked for the Texas Defender Service to replace Volberding and directed Volberding to abandon all appeals, said Dow's lawyer, University of Texas law professor Jordan Steiker.

When it was sorted out, Dow and co-counsel Katherine Black received Volberding's case files — in 15 poorly organized boxes — only nine days before Simpson's execution date, Steiker said.

At first, Dow and Black anticipated filing a petition stating that Simpson was ineligible for execution because he was mentally ill. But a review of the files found another potential claim: that prosecutors had improperly excluded black jurors at Simpson's trial for kidnapping and killing an 84-year-old Anderson County woman in 2000. Simpson was black.

Additional death row visits to assess Simpson's mental health further delayed the appeal, Steiker said.

"This is not a case in which the lawyers were sitting on this claim for months or years," Steiker said.

Earlier coverage begins with "this post.

Federal Death Penalty Prosecutions

"No Decrease In Death Penalty Approval Rate," is the title of Ari Shapiro's NPR report.  The title refers to capital prosecutions approved by President George W. Bush's final Attorney General, Michael Mukasey and the current AG, Eric Holder.

During the Bush administration, opponents of capital punishment criticized the Justice Department for bringing federal death penalty cases too often and in states that have outlawed execution as a form of punishment.

With Attorney General Eric Holder running the department, many people expected to see a more limited use of the tactic.

But so far, Holder is instructing prosecutors to seek the death penalty at roughly the same rate as President Bush's last attorney general.

Holder said at his confirmation hearing that he is not a proponent of the death penalty. In March, he told reporters, "I think that's the toughest decision that an attorney general has to make: When do you authorize the seeking of the death penalty?"

But he quickly proved he is not afraid to instruct prosecutors to seek the death penalty in court.

"I've had to sign a few of those already during the course of these six weeks," Holder said in his first briefing with the media.

Several months later, Holder has authorized death penalty prosecutions at a pace comparable to that of his immediate predecessor, according to the Federal Death Penalty Resource Center. The center helps defense lawyers in capital cases, and it also tracks how often an attorney general authorizes prosecutors to seek the death penalty.

According to the Federal Death Penalty Resource Center, President Bush's first attorney general, John Ashcroft, greenlighted 139 federal death penalty prosecutions out of 641 cases that might have been eligible for capital punishment. That's a 22 percent approval rate. Ashcroft's successor, Alberto Gonzales, authorized prosecutors to seek the death penalty in 81 out of 423 possible cases, for a 19 percent approval rate.

Michael Mukasey approved 21 out of 159 cases, so his approval rate was 13 percent. Holder's approval rate is almost identical to Mukasey's.

And:

"The federal death penalty is not on hold in the sense of prosecutions," says Richard Dieter, who directs the nonpartisan Death Penalty Information Center. "Eric Holder's stamp of approval and signature is now on a number of federal prosecutions that are being carried on, and yet we don't know if there's going to be a change in policy."

Holder has not made any sweeping pronouncements about the death penalty. And sources who have met with senior Justice Department officials on this issue say there is no policy review on the horizon.

So, as multiple people who've worked with the Justice Department on the death penalty put it, "Nothing has really changed."

But this debate is about more than the number of prosecutions. It is also about how, and where, the decision to seek the death penalty is made.

The report also contains this chart:

Seeking The Death Penalty

Attorney General Eric Holder has instructed prosecutors to seek the death penalty at about the same rate as Michael Mukasey, President Bush's last attorney general.

Source: Federal Death Penalty Resource Center

Credit: Robert Benincasa and Nelson Hsu/NPR

Texas Execution

Texas is scheduled to carry out its 24th execution of 2009, tonight in Huntsville, despite evidence that Bobby Woods has mental retardation.  In 2002, the U.S. Supreme Court ruled it unconstitutional to execute offenders with mental retardation in the case of Atkins v. Virginia.

"Inmate With Low I.Q. Nears Execution in Texas," is the title of James McKinley's report for the New York Times.

A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

The debate over whether he should be executed reflects the gray area left by the Supreme Court in 2002, when it ruled the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argue that his intelligence scores are low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. But several courts have rejected that claim.

Maurie Levin, a University of Texas law professor who represents Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said. “It’s a travesty.”

In its 2002 ruling, the Supreme Court said that to demonstrate that someone is mentally retarded, one must prove that the person has had low I.Q. scores and a lack of fundamental skills from a young age. The court said a score on intelligence tests of “around 70” indicated mental retardation.

But that standard has been applied unevenly by state courts, according to a study by Cornell law professors. Some state courts in Mississippi, Alabama and Texas have held that inmates with scores as low as 66 are not impaired, while an inmate in California with a score of 84 was declared mentally retarded.

Courts in Texas repeatedly rejected Mr. Wood’s claims of mental impairment, although the state’s highest criminal court last year halted his execution to allow more hearings on the matter. That reprieve was lifted in October and this week, the Texas Board of Pardons and Paroles voted unanimously to reject a clemency request.

As a child, Mr. Woods struggled in school and eventually dropped out in the seventh grade. He was barely literate and had to copy words from a spelling list to write the simple notes he sent his family.

His intelligence was tested twice in grade school, and he received scores of 80 and 78, but defense lawyers argued that those scores should be adjusted downward to account for the age of the tests. As an adult, he was tested just before his trial and scored 70. A second test done in prison in 2002 showed him with an I.Q. of 68.

At Texas Tribune, Reeve Hamilton includes this in, "The Brief," today:

Texas’ final scheduled execution of 2009 is set to take place today, though some believe Bobby Wayne Woods, convicted in 1998 of kidnapping, raping and murdering an 11-year-old girl, may be retarded.  According to The Texas Observer, which has video of Woods, “test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation.”

AP reports, "Man set to be executed for rape-murder of Granbury girl, 11," written by Michael Graczyk, via the Fort Worth Star-Telegram.

Woods, 44, is scheduled to be executed tonight. His attorneys have appealed repeatedly, contending that his life should be spared because of a U.S. Supreme Court ruling that bars execution of the mentally impaired.

State and federal courts have repeatedly rejected Woods’ claims of mental impairment, although when lawyers raised new claims last year, Texas’ highest criminal court halted his punishment hours before he was scheduled to be taken to the death chamber.

The Texas Court of Criminal Appeals lifted its reprieve in October, and a new execution date was set. This week, the Texas Board of Pardons and Paroles voted 7-0 to reject a clemency request seeking to reduce Woods’ death sentence to life in prison.

"Mr. Woods is extremely mentally disabled," appeals attorney Maurie Levin, a University of Texas Law School professor, told the board. "His IQ hovers around 70 — the magical cutoff point for determining whether someone is mentally retarded."

Levin said that Woods is socially isolated and unable to function independently and that his mental abilities "are so severely limited that he is deserving of mercy, regardless of whether he qualifies" under Supreme Court guidelines.

In an appeal pending Wednesday before the Supreme Court, Levin argued that Woods’ earlier appeals were hampered by "the abysmal performance" of his state-appointed attorney, who has since been removed from a list of lawyers eligible to represent condemned inmates.

Earlier coverage of the case begins with this post.  Related articles are in the mental retardation category index. 

If Woods is executed tonight, it would be the 447th Texas 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 49 executions in the nation this year; 1,185 since 1977.

According to TDCJ, tonight's would be the final execution in Texas during 2009.   Five 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.

Capital Punishment Not Likely A Murder Deterrent: Study

That's the headline at the Crime Report from John Jay College's Center on Media, Crime and Justice.  LINK

Contrary to the common belief that capital punishment deters murderers, a study by Tomislav Kovandzic, Lynne Vieraitis, and Denise Paquette Boots of the University of Texas at Dallas concludes that most offenders do not likely weigh the costs and benefits of crime and are not likely to be deterred by the existence of the death penalty. Many homicides are committed when offenders are under extreme emotional duress and are unlikely to be thinking of the legal sanctions.

The study, in the November 2009 issue of the journal Criminology and Public Policy, edited at Florida State University, says that for the death penalty to serve as a deterrent, the probability of getting caught and punished must be greater than any benefit the offender could achieve from committing the crime.

The web version of the Journal is here. 

Deterrence and executions

• Editorial Introduction
  The impact of the death penalty on murder
  John J. Donohue III
• Research Article
  Does the death penalty save lives? New evidence from state panel data, 1977 to 2006
  Tomislav V. Kovandzic, Lynne M. Vieraitis, Denise Paquette Boots
• Policy Essay
  Can’t tell: Comments on “Does the death penalty save lives?”
  Richard Berk
• Policy Essay
  Don’t scrap the death penalty
  Paul H. Rubin

More on the topic in the deterrence category index.

The Tennessee Execution & a Supreme Court Debate

Lyle Denniston reports, "Time on death row as an issue," at SCOTUS Blog.

After nearly 29 years on death row, Cecil C. Johnson, 53, was put to death by lethal injection early Wednesday in Tennessee. About an hour before he was pronounced dead at 1:34 a.m. (Tennessee time), Johnson’s case stirred up anew a running controversy within the Supreme Court over the constitutionality of long delays in carrying out executions.

“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf.  The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution.  For more than 14 years, one or both of those Justices has been calling for review of the question of whether it is “cruel and unusual punishment” to put off execution for a long time, at least when that is due to delays that are not the fault of the inmate.

Such delays as Johnson had undergone, Stevens said, subject death row inmates “to decades of especially severe, dehumanizing conditions of confinement.”  In addition, he wrote, long delays do not “further public purposes of retribution and deterrence,” but rather only “diminish whatever possible benefit society might receive” from the inmate’s ultimate death. “In other words, the penological justifications for the death penalty diminish as the delay lengthens.”

But, as has happened before, the Stevens complaint was met with a sharply worded retort from a colleague, Justice Clarence Thomas.  It has been 14 years, Thomas wrote, since Stevens first proposed finding a violation of the Eighth Amendment for years-long residence on death row.  “i was unaware of any constitutional support for the argument then…And I am unawarion e of any support for it now.”

The Stevens-Breyer opinion is here, the Thomas opinion here.

"Justices Thomas, Stevens Clash Over Death Row Appeal," is Marcia Coyle's National Law Journal Report.  It was first posted at The BLT.

In the wake of the Supreme Court's refusal early Wednesday morning to hear the last-minute appeal of a Tennessee death row inmate, two justices clashed -- one with some bite -- over whether execution after lengthy delay is cruel and unusual punishment under the Eighth Amendment.

Tennessee executed Cecil Johnson at 1:34 a.m. Wednesday. Johnson had spent nearly 29 years on death row for three murders committed during a robbery of a Nashville convenience store. He was convicted in 1981.

A high court majority rejected his application for a stay of execution and his petition for review in which he raised the Eighth Amendment challenge.

Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented (pdf), saying Johnson's situation was "as compelling a case" as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas.

Stevens blamed the state for most of the delay in Johnson's case. He noted that it was not until 1992, when a state law was changed, that Johnson had access for the first time to "substantial evidence" undermining key eyewitness testimony.

"We cannot know as a definitive matter whether, if the state had not withheld exculpatory evidence, Johnson would have been convicted of these crimes," wrote Stevens. "We do know that Johnson would not have waited 11 years on death row before the State met its disclosure obligations."

Besides the constitutional issue, Stevens said Johnson's case raised two important procedural questions: whether, as in Johnson's case, the Eighth Amendment challenge can be made as a civil rights claim under Section 1983, and, if it cannot, whether a second habeas petition raising the claim is a successive petition subject to a procedural bar. Treating the claim as a habeas petition -- which the lower court here did -- only contributes to additional delay, he said.

Stevens said he remained "steadfast" in his view that execution after such delay is unacceptably cruel because it subjects death row inmates to decades of severe, dehumanizing conditions of confinement. Delaying an execution, he added, also does not further the public purposes of retribution and deterrence.

Justice Clarence Thomas, in a spirited response (pdf), said Johnson spent 29 years challenging his conviction and sentence and "now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out."

For CNN, Bill Mears posted, "2 justices spar over Tennessee execution."

Two Supreme Court justices engaged in a late-night exchange of harsh words before the execution early Wednesday of a convicted Tennessee killer who had been sitting on death row for nearly three decades.

Justices John Paul Stevens and Clarence Thomas disagreed over whether to grant a stay of execution for Cecil Johnson Jr.

The stay eventually was denied, and about an hour later, at 2:34 a.m., Johnson was put to death by lethal injection at a Nashville, Tennessee, prison.

The 53-year-old inmate had been convicted of murder in a 1980 shooting spree at a convenience store near the state capital. The victims included 12-year-old Bobby Bell Jr., son of the store owner, who was wounded. Two other men sitting in a nearby taxicab also were shot to death.

Stevens, who was initially presented the last-minute appeal by Johnson's lawyers, would have granted the stay, along with Justice Stephen Breyer. Stevens was concerned that too much time had elapsed between sentencing and the planned execution, amounting perhaps to cruel and unusual punishment.

Cecil Johnson's case was noted in this post.

A Reprieve for Turkeys, But Not for People

That's the title of David Fathi's latest essay at Huffington Post.  He's the director of the Human Rights Watch U.S. program.  LINK

The day before Thanksgiving, at a ceremony in the White House Rose Garden, President Obama officially "pardoned" two turkeys, sparing them from the chopping block and sending them to live out their days in Disneyland. This is one of those uniquely American traditions that must have our foreign friends scratching their heads. What can you say about a country where turkeys receive a presidential reprieve, while more than 3,000 human beings are awaiting death at the hands of the state?

Compare the White House turkeys' experience to Romell Broom's. On September 15 the state of Ohio tried to execute Broom by lethal injection - and failed. Prison staff struggled for more than two hours to find a vein for the needle that would deliver the deadly chemicals to stop his heart. They stuck him at least 18 times, painfully striking muscle and bone. At one point Broom covered his face with his hands and cried. Governor Ted Strickland finally ordered the execution postponed, and a federal appeals court later stayed another Ohio execution pending investigation of what it called the "disturbing issues" raised by this incident. But the state still wants to try again to kill Broom.

The United States is one of very few democracies to retain the death penalty. All of our closest allies - Canada, the United Kingdom, Germany, France - abolished it decades ago. And it's not just a little-used provision in US law; last year, the United States was the world's fourth-leading executioner, just behind the repressive governments of China, Iran, and Saudi Arabia. There have been 48 executions in the United States so far this year, and nearly 1,200 since the start of the modern death penalty era in 1977.

The vast majority of the nearly 3,300 persons under sentence of death in the United States are on state death rows, so President Obama has no direct authority to commute their sentences.

And:

It has taken many years for the world to turn its back on the death penalty, leaving the United States as one of the last holdouts. Here in the United States, progress has similarly been incremental, slow but steady. It won't happen tomorrow, but with luck, we'll eventually see the day when human beings receive as much mercy and compassion as White House turkeys.

More from Fathi is here.

In Ohio, Jim Provance writes, "Parole panel to consider clemency for murderer," for today's Toledo Blade.

Attorneys for convicted murderer Vernon Smith will try to convince the Ohio Parole Board tomorrow that he never meant to kill the owner of a Toledo carryout during a robbery 16 years ago and should be spared execution.

The state, however, will counter that Smith, 37, "callously and deliberately'' shot a cooperative Sohail Darwish, who left behind a wife, a young daughter, and an unborn daughter.

The parole board will recommend whether Gov. Ted Strickland should commute Smith's sentence to life in prison. Also known as Abdullah Sharif Kaazim Mahdi, Smith faces lethal injection on Jan. 7 under Ohio's new single-drug process.

"The next day, when Mahdi was at home, he heard on the news that Darwish had died," reads the clemency application submitted by Ohio assistant public defenders Robert Lowe and Kimberly Rigby. "Upon hearing this, he broke down and cried. He was extremely distraught, not over the trouble he was in but the fact that he had taken a man's life."

The victim's widow, Charlotte Darwish, and his daughters, Dolly and Mona, are expected to speak to the parole board. Smith's aunt, Patricia Dickerson, is expected to make a statement via video.

Smith refused to be interviewed in prison by a parole board member. Death row inmates do not appear before the full board.

And:

Smith's attorneys argue he believed he had shot Woodstock Market owner Mr. Darwish in the arm during the May 26, 1993, robbery, unaware it would prove fatal. They accuse his trial attorney of conceding Smith's guilt and not seriously challenging the prosecution's contention that Mr. Darwish's death was intentional until it came time to fight the death sentence. The gambit failed.

Smith is getting some help from a former 6th District Court of Appeals judge who cast the sole dissent in the decision upholding the conviction and sentence. At the request of Smith's attorneys, retired Judge James R. Sherck of Sandusky County submitted a letter to the parole board in which he questions whether Smith meant to kill Mr. Darwish.

Related posts are in the clemency category index.

Developmental Psychologist Says Teenagers Are Different

That's the title for, "A Conversation With Laurence Steinberg," conducted by Claudia Dreifus for the New York Times science section.

Laurence Steinberg, a developmental psychologist at Temple University in Philadelphia, is one of the leading experts in the United States on adolescent behavior and adolescent brain biology. Dr. Steinberg, 57, has won the $1 million Klaus J. Jacobs Research Prize, which will be awarded to him at a ceremony in early December in Switzerland. Here is an edited version of two conversations with Dr. Steinberg last month:

Q. YOU HEAR PARENTS SOMETIMES SAY, “I’M LIVING WITH AN INSANE PERSON. MY CHILD IS A TEENAGER.” ARE THEY BEING HYPERBOLIC?

A. I’m not one of those people who labels adolescence as some sort of mental illness. Teenagers are not crazy. They’re different.

When it comes to crime, they are less responsible for their behavior than adults. And typically, in the law, we don’t punish people as much who are less responsible. We know from our lab that adolescents are more impulsive, thrill-seeking, drawn to the rewards of a risky decision than adults. They tend to not focus very much on costs. They are more easily coerced to do things they know are wrong. These factors, under the law, make people less responsible for criminal acts. The issue is: as a class, should we treat adolescents differently?

Q. IS THE CRIMINAL JUSTICE SYSTEM BEGINNING TO TAKE THESE DIFFERENCES INTO ACCOUNT DURING SENTENCING?

A. It’s been coming up in cases. I went to Washington in November to watch the oral arguments in two related cases before the Supreme Court that ask: should someone who committed a crime as a teen be subjected to life imprisonment without a chance for parole, ever?

With these cases, and another in 2005 where the high court threw out the death penalty for adolescents, I was scientific consultant to the American Psychological Association on its amicus brief. What we said in the death penalty case — and now — was that we have considerable evidence showing that adolescents are different from adults in ways that mitigate their criminal responsibility. But since 2005, there’s been a lot of new scientific evidence supporting this position.

Q. WHAT IS THE NEW EVIDENCE?

A. In the last five years, as neuroscience has moved forward with functional magnetic resonance imaging and with research on animals, there have been dozens of new studies of adolescent brain development. These show that the brain systems providing for impulse control are still maturing during adolescence. Neuroscientists have shown that the part of the brain that improves most during adolescence is the prefrontal cortex, which is involved in complicated decision-making, thinking ahead, planning, comparing risks and rewards. And the neuroscientific research is showing that over the course of adolescence and into the 20s, there is this continued maturation of this part of the brain. So now, we have brain evidence that supports behavioral studies.

Moreover, we’re seeing that behavior can change once the brain more fully matures. Take thrill-seeking, for instance. What happens is that when people move out of adolescence, they become less interested in it. For example, I can’t stand riding on a roller-coaster now. I liked it as a teenager. I can’t stand driving fast now. I liked driving fast when I was a teenager. What has changed? I’m not as driven today by this thrill-seeking sensation. And in our studies, we’ve shown that there is a kind of normative decline in sensation-seeking after middle adolescence. A lot of adolescent crime is driven by thrill-seeking.

Q. HOW DOES THIS NEW INFORMATION lead to concluding that the courts shouldn’t sentence some adolescents to life in prison without parole?

A. Given the fact that we know that there will be a developmental change in most people, the science says that we should give them a chance to mature out of it. No one is saying that kids who commit horrific crimes shouldn’t be punished. But most in the scientific community think that we know that since this person is likely to change, why not revisit this when he’s an adult and see what he’s like?

Earlier coverage of Dr. Steinberg is here; an OpEd he co-wrote, noted here.  Steinberg is on the board of directors of the Philadelphia-based Juvenile Law Center.

Earlier coverage of  Graham v. Florida and Sullivan v. Florida begins with this post.

Richard Dieter on Ohio's Revised Lethal Injection Procedure

"Ohio's execution of Kenneth Biros an experiment on involuntary human subject," is the title of Richard Dieter's commentary at Jurist.  He's the Executive Director of the Death Penalty Information Center.  Here's an excerpt of this must-read:

In a rapid sequence of events, the state of Ohio has abandoned its longstanding commitment to the standard method of lethal injection, adopted a new protocol (and even more novel "backup plan") that no other state employs, and has asserted that it is ready to carry out its first execution under these new procedures in a few days. The execution of Kenneth Biros should not go forward on December 8 without further review.

Ohio's track record with lethal injections has been dismal. In 2006, Ohio finally succeeded in killing Joseph Clark after 90 minutes of bungling in the lethal injection chamber. Clark repeatedly called out "It don't work. It don't work." In 2007, Ohio executed Christopher Newton with similar problems, and he was not declared dead until two hours after the process started. Despite revisions to their procedures, Ohio failed in its attempt to execute Romell Broom in September 2009. After two hours, the execution team gave up and Broom was removed from the chamber. Ohio confidently said that it was ready to put Broom through another execution attempt one week later, but that attempt was blocked by the courts, exercising well-deserved skepticism.

Very recently, Ohio has proposed a one-drug protocol - a massive (5000 milligram) overdose of an anesthetic - to kill those on death row. Surely, this latest experiment on involuntary human subjects needs to be examined more closely before the state's word is taken at face value. Ohio consulted with Dr. Mark Dershwitz regarding their new execution plan. But even Dr. Dershwitz admits that the effects of this massive dose are untested, even if lethal. He stated in the Fordham Urban Law Journal that "We are unaware of any indication in clinical medicine in which a 5000mg dose of thiopental is given to a 80kg patient...there is circumstantial evidence that a 5000mg dose of thiopental may have caused, in some inmates, virtual cessation of circulation."

Other doctors had even more serious reservations about this one-drug protocol in the same journal. Dr. Susi Vasallo said that to view this new method as an improvement was an "illusion." Dr. Teresa Zimmers said the drug might not be sufficient to cause death. The Royal Dutch Society rejected this method for euthanasia.

Today's Youngtown Vindicator carries, "State asks federal court to deny Biros' challenge," by Marc Kovac.

The state attorney general has asked a federal court to deny a petition for rehearing Kenneth Biros’ legal challenge to Ohio’s lethal-injection methods, arguing that the court was correct to lift a stay on the Trumbull County murderer’s planned execution next week.

The filing Tuesday afternoon with the 6th U.S. Circuit Court of Appeals in Cincinnati came in response to filings late last week by Biros’ attorneys, seeking a rehearing on the matter before the full court.

Biros had sought federal intervention in his execution, arguing that Ohio’s three-drug lethal injection process was unconstitutional. But the Ohio Department of Rehabilitation and Correction changed its execution process, switching to a single-drug method.

That move prompted the federal appellate court to rule that Biros’ legal claim was moot, and it lifted a stay, giving the green light for next week’s scheduled execution.

But the federal court added in its decision last week, “Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether it has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits.”

The attorney general’s filing Tuesday afternoon came in response to a petition for a rehearing by Biros’ legal counsel.

In their filing Friday, legal counsel for Biros argued that the new protocol raised more questions than it answered.

"Ohio Backup Execution Plan Allows At Least 3 Tries," is the AP report via WTAP-TV.

Ohio's new backup plan for executing inmates by injection allows at least three attempts to administer drugs through muscles in the arms or legs.

The backup would be used if administering a single powerful anesthetic through a vein doesn't work.

The plan filed in federal court Monday requires executioners to check the inmate five minutes after the backup drugs are administered and inject a second dose if the inmate is still breathing.

The plan requires executioners to check again after five minutes and administer a much larger dose of just one drug if the inmate continues to breathe.

The plan says executioners can continue to administer the larger dose as needed.

Earlier coverage from Ohio begins here.

Speaking of Bobby Woods

The editorial noted in the preceding post referenced the case of Bobby Woods.  Yesterday afternoon, the Board of Pardons and Paroles rejected clemency in his case.  Renee Feltz has posted, "Video From Death Row: Possibly Retarded Prisoner Faces Execution," at Huffington Post.

As Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 -- the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters -- many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Click here to see videos and the full story from The Texas Observer.

Feltz, formerly news director of Houston's KPFT, is now based in New York. 

Earlier coverage of the Bobby Woods case begins with this post. Related articles are in the mental retardation category index.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  

Too-Secretive Process

That's the title of an editorial in today's Houston Chronicle regarding Texas' executive clemency process.  LINK

Houston criminal defense attorney Patrick McCann made a persuasive argument for opening up Texas' too-secretive pardons and paroles process in Sunday's Outlook section (“Texans deserve public, open clemency process,” Outlook, Nov. 29, Page B8).

We agree with McCann's contention that this important part of the criminal justice process should be far more transparent; regrettably, it could scarcely be more closed. That ought to be a matter of concern, not just for the accused and convicted, but for all who come in contact with the system.

McCann's client, Robert Lee Thompson, was executed recently after Gov. Rick Perry declined to accept a recommendation by the state Board of Pardons and Paroles that Thompson's sentence be commuted to life in prison.

The board vote to change Thompson's sentence was made after successful entreaties by McCann and his partner, Rodney Brown. Thompson had been given a capital sentence despite the fact that he did not fire the weapon in the murder of a store clerk; McCann and Brown had persuaded the board to change the death sentence.

As McCann noted in his Outlook piece, the pardons and paroles board's decision was made entirely in secret — behind closed doors and without public input. No witnesses. No depositions. No affidavits. And no explanations as to why Perry ultimately declined to approve the recommendations of the board which, ironically, is made up of his own appointees.

This system, shrouded in mystery, could not be more certain to feed public suspicion if it had been specifically designed to do so. And Perry's silence about his decision to allow Thompson's execution to proceed has only heightened suspicions that the governor's decision had less to do with the facts in Thompson's case than with appealing to staunchly conservative voters in the March 2010 Republican gubernatorial primary, in which Perry faces a strong challenge from Sen. Kay Bailey Hutchison.

The secrecy is made that much more troubling by the lengthening history of false convictions based on faulty evidence that has bedeviled Texas criminal justice these past few years.

And:

The secretive system is on display once more this week, leading up to the scheduled Thursday execution of Bobby Wayne Woods for the 1998 kidnapping, rape and murder of 11-year-old Sarah Patterson. Attorneys for Woods have asked the Board of Pardons and Paroles for a stay of execution or clemency.

A 2002 U.S. Supreme Court ruling prohibits the execution of persons who are mentally retarded. Over the years, testing of Woods has shown that he has an IQ hovering around 70, the cutoff for mental retardation. His attorneys also contend Woods did not receive adequate representation at the appeals court level.

The crime committed against Sarah Patterson was heinous; of that there is no dispute. But the circumstances, including Woods' borderline test scores, questionable legal representation and the suicide of a cousin who he claims committed the crime, argue for careful review before a capital sentence is carried out.

Indeed, cases such as this one make perhaps the most compelling argument for opening up the whole process. Texas can and should do better.

McCann's OpEd, "Texans deserve public, open clemency process," is noted in this post.

As related before, more on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  The Appendix contains comparative state information.

The current issue of the ABA Criminal Justice magazine contains the article, "Gubernatorial Clemency Powers: Justice or Mercy?" by Kathleen “Cookie” Ridolfi and Seth Gordon, noted here.

More on Todd Willingham

Today's Houston Chronicle carries the latest column by Rick Casey, "Can e-mail be saved by deleting it?"

A couple of weeks ago I sent a request to the Texas Forensic Commission under the Public Information Act for any documents or e-mails regarding two new policies put into place by the commission's controversial new chairman, John Bradley.

A quick refresher: Bradley is the Williamson County district attorney appointed Sept. 30 by Gov. Rick Perry to replace the previous chairman. This was just days before the commission was to discuss in open session a report from a national expert saying that the arson evidence that led a jury to convict and sentence to death the late Cameron Todd Willingham was grievously flawed. Bradley's first act was to cancel the meeting.

The first new policy I asked about requires all members to refer reporters to Leigh Tomlin, the commission coordinator, who would take the requests to Chairman Bradley.

I received a response with a promptness that is rare for governmental bodies.

“… (T)he commission does not have any communications responsive to your request,” wrote Tomlin.

I wasn't surprised. Her answer merely confirmed the existence of the other policy about which I was seeking information: That members should destroy all e-mails regarding commission business.

I know that because I have a copy of an e-mail (now apparently destroyed) from Tomlin to commission members dated Oct. 30. It asks them to forward “any and all communications” regarding the Willingham matter to her. The e-mail closed: “Also, as a reminder of our e-mail retention policy, please delete all commission correspondence. If you feel there is something that needs to be saved, forward it to my office.”

In two other e-mails, the first on Oct. 6 and the second on Nov. 5, Tomlin says:

“Please also keep in mind that any communications regarding the commission's activities should be delivered through the commission chair, Mr. Bradley.”

And: “I also would like to remind everyone of our media policy. Please continue to forward any media inquiries to my office.”

The commissioners — seven scientists, one defense attorney and Chairman Bradley — did not vote on those policies. They were dictated by Chairman Bradley.

The reason I know that is that they have not met in the two months since Chairman Bradley was appointed.

What once had been a collaborative body, in which all decisions were discussed and made in open sessions, seems now to be a commission in which serious matters concerning public communication and document retention are made by an all-powerful chairman.

And:

Some may also be at least a little annoyed that a man whom they haven't met, who has demonstrated little understanding of the work they've done over the past few years, is telling them they're not allowed to speak to the public about that work.

Chairman Bradley told the Fort Worth Star-Telegram through an e-mail, that he “simply seeks to make sure that all relevant information is saved at a single location.”

That is patently absurd. You don't need to be a scientist to understand that deleting e-mails doesn't save them at a central location.

AP reports, "Jurors defend verdict that led to Texas execution," by Jeff Carlton, via Google News.

David Martin is sickened by the suggestion that Texas executed an innocent man when Cameron Todd Willingham was put to death for setting a fire that killed his three children.

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

"I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies," Martin said. "I think that he was guilty, that he deserved death and that he got death."

The 2004 execution, however, didn't end questions about the case. Fire investigator experts hired first by The Innocence Project and later by the Texas Forensic Science Commission concluded the original finding of arson was seriously flawed.

Without that finding, prosecutors have admitted it would have been hard to win a death sentence against Willingham.

But the reports have done nothing to change the minds of Martin and four jurors reached by The Associated Press in recent weeks, who all remain convinced Willingham set the blaze 18 years ago that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron. They never heard from Willingham, who declined to take the stand in his own defense.

Prosecutors, meanwhile, called 17 witnesses, including the only experts to testify — both fire investigators who told jurors arson was to blame.

"All you can go on when you are on a jury is what is put before you," said one juror, Dorenda Dechaume, 39. "I stand by my vote — guilty."

Earlier coverage of the Todd Willingham case begins here.  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."

An Update on Bobby Woods

Chuck Lindell has updated his post from earlier today, noted here.

UPDATE: The Board of Pardons and Paroles has denied Woods’ clemency request, lawyer Maurie Levin said.

Also this afternoon, Levin filed an appeal with the U.S. Supreme Court laying out many of the arguments (detailed below) made in the clemency petition.

Earlier coverage begins with this post.

Botched Investigations Lead to Executions

That's the title of an OpEd in today's Asheville Citizen-Times in North Carolina.  It's by Larry Cox, the Executive Director of Amnesty International USA.   LINK

When the United States abolishes the death penalty, some of its most ardent proponents ironically may be remembered for having made the most effective case for its demise. Texas Governor Rick Perry's obvious attempt to suppress the truth in the supposed arson case against Cameron Todd Willingham, executed in 2004 for a crime that probably didn’t occur, reveals the heinousness of capital punishment. That an innocent individual can be executed is disturbing. That the death penalty—which has claimed about 50 lives in the United States so far this year—is used for political purposes, while doing nothing to deter violent crime, is abhorrent.

And:

Supreme Court Justice Antonin Scalia said in 2006 that he didn’t believe the United States had executed anyone who was innocent. If that had happened, Scalia said, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.” 

Had Willingham been sentenced to life in prison, he could be a free man today.

Instead we are left to ask, as former Texas Governor Mark White recently did: Why do we impose the death penalty, given the possibility that an innocent person will be executed?

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."

In Kansas

It's hard to believe that this could happen less than five years ago -- an attorney in a death penalty case who hired no experts.  The Supreme Court's 2003 ruling in Wiggins v. Smith was limited to social history and mitigation, but should have been a clear signal to the trial judge that the case was headed for trouble ahead.

Steve Fry reports, "No experts sought in death case," for the Topeka Capital-Journal of Kansas.

The attorney representing death penalty defendant Phillip D. Cheatham had never handled a death penalty case before Cheatham and didn't get funds to obtain expert services in the Cheatham case, according to testimony Monday.

The testimony surfaced during a hearing to determine whether defense attorney Dennis Hawver gave ineffective assistance of counsel to Cheatham, 36, who was sentenced to death in 2005 for the Dec. 13, 2003, slaying of Annette Roberson, and 50 years in the slaying of Gloria Jones. A third woman, Annetta Thomas, survived and testified against Cheatham at trial.

If Shawnee County District Court Judge Mark Braun rules Hawver gave ineffective assisance of counsel to Cheatham, the judge then must decide whether Cheatham will get another trial.

Cheatham was eligible to receive funding from the Board of Indigent Defense Services to pay for an investigator and a mitigation specialist, and to administer a psychological evaluation and an IQ test, said, Patricia Scalia, executive director of BIDS. Scalia called Hawver, who told her he wasn't appointed to represent Cheatham and wasn't hired by Cheatham. BIDS would have paid Hawver for Cheatham's defense.

After Scalia's call to Hawver, he never called back Scalia.

Hawver didn't contact BIDS in the first place, which was "very unusual," Scalia said. Hawver wasn't trained or qualified to represent Cheatham in a death penalty case, Scalia said.

And:

Charles Rogers, a death penalty defense expert, said Hawver erred when he painted his client as a "murdering drug dealer," which isn't a reasonable defense. Hawver told prospective jurors his client sold cocaine for a living and had killed another drug dealer Sept. 7, 1994, in Wyandotte County and pleaded guilty to voluntary manslaughter.

Rogers, who has defended clients in about 50 murder cases, including 10 capital cases, said an investigator should have tracked down the brother of Cheatham who could provide an alibi on the defendant's whereabouts at the time of the killings; traced cell phone records to pin down whether Cheatham was en route to Chicago when the women were killed; and obtained statements from defense witnesses.

Third Annual ABA Journal Blawg 100

The list, with live links, is here.  It's filled with old favorites and some new blogs.  After perusing, I'll be making some additions to the left-column webroll.

One favorite that did not make the list is A Criminal Enterprise, noted here.

Lethal Injection Roundup

"New execution protocol to be used on Biros," is the title of Marc Kovac's report for the Youngtown Vindicator.

State prison officials implemented a new execution protocol Monday and plan to use it next week on Trumbull County murderer Kenneth Biros.

Barring court intervention, Biros will become the first Ohio inmate to be put to death using the single-drug method, with a direct injection backup if suitable veins are not available for the standard intravenous procedure.

The execution protocol was outlined in an 11-page policy released to reporters Monday during an open house in the death chamber and related facilities at the Southern Ohio Correctional Facility in Lucasville.

“We wanted to equip our staff with the means necessary to carry out their responsibilities under the law,” said Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction.

The policy, announced earlier in the month by state prison Director Terry Collins, supersedes the three-drug protocol that has been used since Ohio restarted executions in 1999.

Walburn said the changes addressed two issues: claims that the former three-drug method could be cruel and unusual punishment and the inclusion of a backup system if inmates’ veins are not accessible for intravenous injections.

A federal court last week cleared Biros’ execution, scheduled for Dec. 8.

The Cincinnati Enquirer has, "State gives tour of 'Death House'," by Jon Craig.

State corrections officials gave a behind-the-walls tour of Ohio's Death House on Monday for the third time since executions resumed in 1999.

Among those on the tour: Reporters and camera crews from 14 news outlets including West Virginia and the Agence France-Presse

The tour at Southern Ohio Correctional Facility coincided with the state's new plan to use one lethal drug - five grams of thiopental sodium, a powerful anesthetic used during surgery - instead of three different drugs, the most common execution process used nationwide. Ohio also ditched its requirement to have two intravenous lines hooked to an inmate at once. One working IV line will now suffice.

Also, Ohio has "a backup plan" in case intravenous drugs don't work - jabbing the thigh or hip muscle of the condemned killer with a shot of midazolam and hydromorphone. If the inmate is still breathing after five minutes, one authorized executioner can jab him again. A third time if five more minutes passes and he's still alive.

Ohio becomes the first place internationally to execute someone with a one-drug process of thiopental sodium next weekwhen Kenneth Biros, 51, of Trumbull County is set to die by lethal injection.

Julie Walburn, spokeswoman for the state Department of Rehabilitation and Correction, said Ohio has one execution scheduled each month through June. The state has executed 32 inmates since capital punishment resumed in 1999. Walburn said that if a convicted killer is found to not have veins viable for lethal injection, the state will just go to its backup plan and inject him to death with the shot. The state fully expects litigation over the new process, Walburn said.

On Dec. 9, lawyers will argue the appeal of Romell Broom of Cleveland, whose execution was delayed Sept. 15 by Gov. Ted Strickland after two hours of attempts finding usable veins on his arms and legs to lethally inject him.

In Tennessee, AP reports, "Judge refuses to stop Johnson execution."  It's written by Lucas Johnson II, via the Knoxville News Sentinel.

District Court Judge Robert L. Echols heard arguments today in the case of 53-year-old Cecil C. Johnson Jr. who was sentenced to death in 1981 and is set to be executed by lethal injection early Wednesday.

Echols wrote in a ruling late Monday afternoon that he lacks jurisdiction to halt the execution.

Johnson’s attorneys argued that evidence was withheld in the case and that the amount of time he’s spent on death row waiting for his case to be reviewed has amounted to “cruel and unusual punishment.”

But prosecutors said Johnson’s appeal has little merit and he’s simply trying to stay alive.

Lead attorney Jim Thomas said “feelings of uncertainty” have affected Johnson psychologically.

And:

If he’s executed, Johnson will be the sixth person put to death in Tennessee since 2000. There were no executions between 1961 and 2000.

"Path cleared for Tennessee to execute 1980 killer," is the title of Kate Howard's report in the Tennessean.

In the early morning hours on Wednesday, Johnson is scheduled to die by injection with a three-drug cocktail at Riverbend Maximum Security Prison. Barring any last-minute reprieve, Johnson will be the first person from Nashville executed since the death penalty was reinstated in 1977.

Questions were raised after the trial concluded about police reports that were never turned over to Johnson's attorneys that cast doubt on some eyewitness testimony. His attorneys questioned whether a prosecutor coerced Johnson's friend into lying about that night. The friend, Victor Davis, planned to testify about Johnson's alibi but later became a state informant. In the end, each of Johnson's arguments was rejected by the 6th U.S. Circuit Court of Appeals. The Tennessee Supreme Court set his execution date.

Gov. Phil Bredesen has denied Johnson's request for clemency, and a request to stay the execution with the U.S. District Court was denied Monday.

"It was a case that captured people's imaginations," said Torry Johnson, Nashville district attorney general, who was a prosecutor on the case. "Certainly, we had robberies before this, and market owners and clerks were killed. But having a child killed was something that really did make this different. It was shocking to people."

Johnson, who has maintained his innocence, and his attorney, Jim Thomas, have declined interview requests.

In an interview with the Nashville Banner three weeks after his arrest in 1980, Johnson said he felt like he was stuck in a bad dream. He said he met with police after hearing they were looking for him and told them he was in Franklin with friends at the time of the slayings. He told the paper that he and Victor Davis were just driving around on a pretty summer day, looking for women and dice games, not for the massacre that happened a few blocks from his dad's home.

And:

Several police reports saying that Bell's friend Louis Smith never got a good look at the accuser were withheld from the defense attorneys, and it wasn't until 1992 that attorneys for Johnson learned of their existence. The district attorneys admitted that the reports were withheld and that the information could have aided Johnson in his defense.

But the federal appeals court ruled the mistake didn't affect the outcome of the trial. Smith admitted that he identified Johnson after seeing him on television, already arrested in the murders, but denied that was the reason he picked him.

A panel of federal appeals judges ruled 2-1 to deny Johnson's appeal. In a scathing dissent, Judge R. Guy Cole, Jr. wrote that the jury "saw a markedly different trial than it would have" if the prosecutors hadn't withheld the reports.

"Because 'fairness' cannot be stretched to the point of calling this a fair trial, I dissent," Cole wrote.

Earlier coverage from Ohio is here.

More on the Case of Bobby Woods

Chuck Lindell has posted, "Shoddy legal work alleged as execution nears," at the Austin American-Statesman's Focal Point blog.

Back in 2006, I did a two-day series on embarrassingly bad legal representation provided by court-appointed appellate lawyers for death row inmates.

One of those lawyers, Richard Alley, is back in the news as attorneys for Bobby Wayne Woods — slated for a Thursday execution — are seeking to delay the lethal injection based in part on Alley’s “blatantly incompetent” representation. (Read the Alley story here.)

Woods’ new lawyer, University of Texas adjunct law professor Maurie Levin, argues that Woods cannot be executed because he is mentally disabled — a practice banned by the U.S. Supreme Court in 2002.

“As soon as you meet him, you know he’s mentally retarded,” Levin says.

(To see Woods and judge for yourself, click here for the Texas Observer’s videos of an interview with the inmate.)

Accusing Alley of failing to fully and properly plead the inmate’s mental disability case in state and federal appeals, Levin is asking the Texas Board of Pardons and Paroles to recommend a 60-day reprieve so members can judge for themselves whether Woods is mentally competent for execution.

“(Alley) has been suspended by the state bar and rebuked by and suspended from practice in the federal courts for his egregious missteps and incompetence as an appellate and post-conviction attorney for those condemned to death,” reads a petition for clemency to the parole board.

“Not surprisingly, that attorney committed numerous grave errors that hamstrung Mr. Woods’ chances for relief,” the petition states.

As linked above, you can read Chuck Lindell's December 2006 series on abysmal performance by court-appointed habeas lawyers, "Writs gone bad."  Here's a snippet:

Richard Alley, a Fort Worth lawyer suspended for one year from practicing before his hometown federal court for repeated unprofessional and unethical behavior. A U.S. judge also removed Alley from a federal death row case, questioning his competence in habeas matters.

Earlier coverage begins with this post.

The Case of Otty Sanchez

Dave Mann writes, "A Systemic Problem," for the Political Intelligence column of the current Texas Observer.

On the tape of the 911 call, Otty Sanchez screams in the background that the devil made her do it. It was an early morning in July, and Sanchez’s sister was calling for help. When San Antonio police arrived, they found a gruesome scene: Sanchez had decapitated her 3-week-old son, mutilated his body and eaten some of the flesh.

The case made national news and became one of the summer’s most lurid crime stories. In recent weeks, more details about the case have emerged, and it appears Texas’ public mental health system—long neglected by state lawmakers—was partly to blame for the tragedy. The 33-year-old Sanchez has a history of severe mental illness. She had been released from a state-run mental health facility and was offered few services in the weeks leading up to the murder, despite reporting that she was hearing voices.

A jury will soon determine whether she’s competent to stand trial. A court-appointed psychologist has already concluded that she is of sufficiently sound mind. If Sanchez does stand trial, the state, which offered few mental health services, will try to give her a death sentence.

Texas ranks 49th nationally in per-capita spending on mental health services. For adults with severe mental illness, there are few affordable options. Texas’ dozen state hospitals—the state’s only public inpatient facilities—are frequently full. Patients usually don’t stay longer than a few months. When people like Sanchez descend into crisis, there is a dearth of services. Clinics and hospitals that offer temporary beds for mental patients are often overwhelmed. In many areas, patients in crisis are offered medication and outpatient treatment. Sometimes that’s not enough. That appears to be what happened with Sanchez.

And:

After giving birth to her son this summer, Sanchez was prescribed an anti-depressant, her lawyer, Ed Camera, told the Express-News, but she rarely took it. Sanchez was suffering postpartum psychosis, a rare but extreme version of postpartum depression in which new mothers hallucinate and feel urges to harm their newborns. It’s especially common in women with a history of severe mental illness. Andrea Yates, the Houston mother who killed her five children in 2001, is perhaps the most famous case.

A week before the murder, Sanchez went to a counseling center to complain of hearing voices, Camera told the Express-News. The clinic called an ambulance, and Sanchez was taken to the emergency room, but later released. She returned home, and a few days later, attacked her young son.

More Supreme Court News

Also yesterday, the Supreme Court rejected one California death case with an innocence claim.  It granted cert in a Michigan case involving double jeopardy, and requested additional briefing in an Alabama death case.

Let's begin with an excerpt of Lyle Denniston's SCOTUS Blog post, "Court scuttles photo ruling; grants 3 cases."

The third granted case, Renico v. Lett (09-338), tests whether it violates double jeopardy to stage a new trial after a state judge declared a mistrial after the jury foreman said the jurors were not going to be able to reach a verdict.  The Sixth Circuit Court found jeopardy in that circumstance, rejecting the conflicting view of the Michigan Supreme Court.

In a highly unusual order, the Court asked state officials in Alabama to respond to a rehearing request in a pauper’s criminal case — Melson v. Allen (09-5373).  The case involves Robert Bryant Melson, who in 1994 shot and skilled three employees and wounded a fourth while robbing a Popeye’s restaurant in Gadsden, Ala.  He was sentenced to death.  The case has had a lengthy journey through federal and state courts, and resulted, most recently, in the Supreme Court’s denial of review of his latest petition on Oct. 5.

In that petition, Melson sought to raise the issue of whether a habeas plea must offer evidence of attorney dishonesty or mental illness in order to excuse the failure to file the plea within the one-year filing deadline set by federal law.  Eight days after the Supreme Court had denied review of that question in Melson’s case, the Court agreed to hear nearly the same issue in Holland v. Florida (09-5327) — a case now scheduled for oral argument on March 1.  After that grant, Melson’s counsel sought rehearing, and review of his case or, in the alternative, a move to hold his case pending the outcome in Holland.   That is the request to which the state of Alabama has now been asked to file a reponse within 30 days.

As it has done in other cases, the Court on Monday once more refused to settle the question of whether it is unconstitutional to execute an individual who has a strong claiim of innocence to murder.  The Court simply denied review in the seventh appeal filed before the Justices by a California death-row inmate, Kevin Cooper.  He is the central figure in one of the most controversial murder cases in the state in recent years.  The two sides directly involved take diametrically opposing views of what the evidence used, or not used, at the trial means.  He was convicted and sentenced to death for the 1983 murder of three members of a family and a neighbor boy in Chino Hills, Calif., and the attempted murder of that family’s eight-year-old son.  Cooper’s latest petition was 09-363 (Cooper v. Wong).

The New York Times carries, "California: Inmate’s Appeal Is Rejected," by John Schwartz, as part of its National Briefing.

The United States Supreme Court rejected the appeal of Kevin Cooper, a California death row inmate convicted of killing four people in 1983. Mr. Cooper and his supporters argue that others committed the murders and that evidence against him was planted by the police. Mr. Cooper was hours away from execution in 2004 when the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered new DNA tests. A federal judge ruled that the new tests did not exonerate him, and appeals courts have upheld the decision. Mr. Cooper’s supporters insisted that the conditions for the testing rendered them useless, and a 103-page dissent in the Ninth Circuit’s decision to deny Mr. Cooper a rehearing earlier this year stated that “the State of California may be about to execute an innocent man.”

"Supreme Court refuses to hear death row inmate's appeal," is the title of Carol Williams' report in the Los Angeles Times.

During Cooper's 1984-1985 trial, the jury heard conflicting accounts of Josh Ryen's recollection of the night of the attack. Deputies who spoke with the boy immediately after he was evacuated by helicopter from the gory murder scene testified that Josh initially reported that three white men were in his house and that a television news broadcast showing a wanted poster of Cooper, who is black, prompted him to say Cooper wasn't the killer. Videotaped excerpts of Josh speaking with a psychiatrist were also played for the jury; on the tapes, Josh recalls only one intruder and can't tell the man's race or other details.

Defense lawyers for Cooper argued at his trial and in more than a dozen appellate proceedings that evidence suppressed or destroyed by the San Bernardino County Sheriff's Department pointed to three white men as the perpetrators, including a convicted contract killer.

"Evidence that we discovered after trial shows that Kevin is innocent of the crime for which he is now sentenced to die," Cooper's lead defense attorney, Norman Hile, said in vowing to continue the fight to halt his client's execution despite the high court denial.

The state Attorney General's office argued in its brief to the Supreme Court that Cooper's conviction has been repeatedly upheld by lower courts because the evidence of his guilt is "overwhelming."

The Kevin Cooper Defense Committee, a coalition of death penalty opponents, said the Supreme Court's refusal to review Cooper's case put California on a path "to do what Texas did in the Cameron Todd Willingham case -- execute an innocent man."

Willingham was put to death in 2004 for setting the house fire that killed his three children.

The Contra Costa Times has, "U.S. Supreme Court denies Kevin Cooper's appeal," by Will Bigham.

Cooper's legal team also highlighted a 103-page opinion written this year by a federal judge who dissented in the 9th Circuit Court of Appeals' rejection of Cooper's request for additional testing.

Circuit Judge William A. Fletcher said the state "may be about to execute an innocent man" and blasted the review of evidence in Cooper's case. His dissent was joined by four other judges.

Cooper's legal team on Monday accused police and prosecutors of destroying evidence, planting false evidence, failing to turn over evidence favorable to Cooper, falsifying lab reports and other misconduct.

A news release issued by the Kevin Cooper Defense Committee is here.

Porter v. McCollum

"Post-combat stress as a defense," is the title of Lyle Denniston's SCOTUS Blog post.

The Supreme Court, in a sign of the times for a nation at war on two fronts, on Monday put defense lawyers on notice that they should be prepared to use evidence of “post-traumatic stress disorder” to try to save accused veterans from the death penalty.  Ruling without full briefing or a hearing, and with no dissent noted, the Court apparently overturned the death sentence of a Florida veteran whose “combat service unfortunately left him a traumatized, changed man,” as the Court put it in Porter v. McCollum (08-10537), involving Korean war veteran George Porter, Jr.  The unsigned opinion can be found here.

“Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did,” the opinion said.  “The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.”

Because the case turned mainly on the specific facts of the prosecution and defense of Porter for murdering his former girlfriend and her boyfriend, it is not clear that the ruling will have a direct impact on other criminal cases in which combat stress might be a key factor. However, parts of the Court’s opinion read as if the Justices did intend to speak more broadly.

It noted that post-traumatic stress disorder “is not uncommon among veterans returning from combat,” and cited testimony before Congress this year by Veterans Affairs Secretary Eric K. Shinseki that “approximately 23 percent of the Iraq and Afghanistan war veterans seeking treatment at a VA medical facility had been preliminarily diagnoses with PTSD.”  It also noted that, in Porter’s case specifically, a medical expert testified that his symptoms “would ‘easily’ warrant a diagnosis” of PTSD.

Adam Liptak writes, "Justices Say War Trauma Must be Weighed in Capital Cases," in the New York Times.

A death penalty lawyer’s failure to present evidence of the trauma his client suffered in combat in the Korean War requires a new sentencing hearing, the Supreme Court ruled unanimously on Monday.

The decision makes clear that lawyers for clients facing the death penalty must present evidence of post-traumatic stress disorder resulting from military service if it is available.

The unsigned 15-page decision displayed unusual solicitude for a death-row inmate, noting that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.”

The defendant, George Porter Jr., was convicted in 1987 of murdering his former girlfriend, Evelyn Williams, and her boyfriend, Walter Burrows, in Melbourne, Fla., the previous year. Mr. Porter represented himself for part of his trial and then decided to plead guilty.

He turned to a court-appointed lawyer, Sam Bardwell, to represent him in the sentencing hearing. Mr. Bardwell, who had never represented a defendant in a capital sentencing proceeding, did not interview any of his client’s relatives and did not obtain any school, medical or military service records. He presented only one witness, Mr. Porter’s ex-wife.

Mr. Bardwell’s investigation, Monday’s decision said, was not “even cursory.” Mr. Bardwell has explained that his client had been fatalistic and uncooperative. He did not respond to a message seeking comment on Monday.

Mr. Bardwell’s conduct “did not reflect reasonable professional judgment,” the decision said. “Had Porter’s counsel been effective, the judge and jury would have learned,” among other things, “about Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War.”

Today's Chicago Tribune carries, "Supreme Court cites combat stress in reversing death penalty," by David Savage.

The Supreme Court on Monday threw out a death sentence for a decorated veteran who fought on the front lines of the Korean War, ruling for the first time that combat stress must be considered by a jury before it hands down the harshest punishment.

"Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [George] Porter did," the justices said in a unanimous, unsigned opinion.

Porter, 76, was convicted and sentenced to die for the 1986 shooting and killing his ex-girlfriend and her new boyfriend during a drunken rage in Melbourne, Fla. But his jury was never told, and his appointed lawyer did not know, of his valiant military service more than three decades earlier.

In the past, the high court has set aside just a few death sentences because a defense lawyer failed to tell jurors of crucial "mitigating evidence" that would likely have persuaded them to spare his life.

Monday's decision appears to be the first in which the court cited "post-traumatic stress disorder" from military combat as the kind of crucial evidence that calls for leniency. It comes as thousands of U.S. soldiers are being treated for the disorder from the wars in Iraq and Afghanistan.

Both the Florida Supreme Court and the 11th U.S. Circuit Court of Appeals in Atlanta upheld Porter's death sentence, despite his overlooked military record, but the high court said those decisions were mistaken.

"George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War. His combat service unfortunately left him a traumatized, changed man," the justices said.

The court's opinion put defense lawyers in capital cases on notice that they have a duty to look into their client's background and to tell jurors about any mitigating evidence that would call for leniency.

In Porter's case, his appointed lawyer testified later that he had only one short meeting with his client before the trial and that he did not meet with Porter's family and was unaware of his military record.

Tony Mauro writes, "Supreme Court Sides With Florida Inmate on Ineffective Assistance," for the BLT.

Returning from its Thanksgiving break, the Supreme Court today issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. He was convicted in the murder of a former girlfriend and her boyfriend. The Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit previously rejected his ineffective assistance claim.

Ruling in Porter v. McCollum, available here, the Court extensively detailed Porter's "horrible family life" and his trying Korean War experiences that earned him two Purple Hearts and other decorations -- none of which was told to the trial court as mitigating evidence during sentencing. The trial lawyer's failure to introduce the evidence "did not reflect reasonable professional judgment" and could well have affected the outcome of the case, the Court said.

In language that is sure to be cited in future cases involving veterans, the Court said that the fact that Porter went AWOL in Korea did not detract from the significance of his combat experience as mitigating evidence.

Opinion Roundup

"Considering its high cost and other flaws, execution just isn't worth it," by Susan Taylor Martin of the St. Petersburg Times appeared in the Friday edition of the Austin American-Statesman.

Does it seem like not so long ago that John Allen Muhammad, the D.C. Sniper, was terrorizing residents of the nation's capital? And does it seem as if the state of Virginia executed him with unusual speed just six years from his sentencing to his death?

If it seems that way to you, you're not alone.

Although the U.S. Supreme Court refused to stay Muhammad's recent execution, three justices noted the relative haste with which he met his state-ordered end.

"This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded," Justice John Paul Stevens wrote for himself, Ruth Bader Ginsburg and Sonia Sotomayor.

Nor was Muhammad's case unique. Of the 10 other inmates recently put to death in Virginia, the average length of time between sentence and execution was 6½ years.

Contrast that to Florida, where the last man executed, John Marek, sat on death row for nearly a quarter of a century. And where another inmate, triple murderer Gary Alvord, has been awaiting execution since 1974, the year President Richard Nixon resigned.

The huge disparity in the time it takes states to execute murderers stems from a number of factors. But at the heart of the issue is the death penalty itself and whether it too should be put to an end.

As Florida and other states struggle with shrinking budgets, it becomes increasingly hard to justify sending people to death row and keeping them there for years when even many in law enforcement say there are cheaper, more effective deterrents to crime. Whether execution comes quickly or is delayed for decades, capital punishment has little appreciable effect on murder rates, experts note.

Roman Catholic Bishop Gerald A. Gettelfinger writes, "Is death the only way we have to extract justice for murder?" for Indiana's Evansville Courier & Press.

The State of Indiana has scheduled the execution of convicted murderer Eric Wrinkles by lethal injection before sunrise on Dec. 11 as he has exhausted all avenues of appeal. He does not intend to seek clemency from Gov. Mitch Daniels from his sentence of death.

Wrinkles wantonly slaughtered his wife and two in-laws, members of an extended Evansville family, 14 years ago while under the influence of meth.

He is guilty of the murders. He has admitted his crime and has sought forgiveness from those whose lives he has shattered. He acknowledges that he is powerless to make appropriate restitution for what he has caused.

Indiana has a constitutional right to execute Wrinkles in order to protect its citizens and to prevent him from ever committing such a crime again.

Capital punishment is a matter of justice under the law. But are there not other ways to exact justice for capital crimes without execution?

I am a member of the Indiana Catholic Conference and the Bishop of the Diocese of Evansville where Wrinkles murdered. For over 30 years the Conference has persistently worked toward the abolition of capital punishment in the State of Indiana. We have not prevailed, yet we are determined to continue our effort.

And:

It seems that we are still invoking frontier justice. Indiana is no longer the frontier. The state is able to protect its citizens from murderous criminals by separating them from society by sentencing them to life imprisonment without the possibility of parole.

However, one cannot ignore the reality that deep within the human being there is somehow a "blood lust" as ancient as human kind. Executions were made a public spectacle so as to teach a lesson, or worse were to satisfy base instincts for vengeance and retribution. They somehow gave approval, even applauded, the base instinct of hatred arising from ignorance and fear.

Ironically, executions are sanitized and are accomplished virtually in secret.

Indiana must not pander to baser human instincts. Respectful of all faith traditions, Christians are taught by Jesus Himself that we are not only to forgive our enemies but we are also to love them without approving the wrongs they have committed.

Mary Winnecke of Evansville is an extraordinary example who lives up to that ideal. Her daughter, her daughter's husband and her husband's sister were wantonly slaughtered by Eric Wrinkles. Mary continues to grieve the loss of her family. Nonetheless, Mary urges that the state not kill him.

May the State of Indiana and its leadership heed her pleas.

Roy Exum, columnist for the Chattanoogan in Tennessee writes, "Crueler Than Death."

Not long after the U.S. Sixth Circuit Court of Appeals denied the plea of Cecil Johnson, the convicted murderer was scheduled to finally be put to death in Nashville this Wednesday. I don’t have a problem with that, but what bothers me – a lot, I might add – is that Cecil Johnson has been in prison for over half his life since being sentenced.

That’s right, the 53-year-old killer has been on death row for 29 years and his lawyer, in eleventh-hour desperation, is saying that in itself is “cruel and unusual punishment.” It is hard not to disagree with him if it weren’t for the fact the endless appeals, hearings, trials and legal meandering, all brought about by reputedly the best system in the world, are the reason for the inexcusable delay.

For the record I support the death penalty. I believe that when people are guilty of heinous crimes, the court should have the right – and the duty – to order those convicted to be put to death. Hand-wringing and citing incidents where innocent people have accidentally been executed in the past doesn’t work with me. If the case warrants the death penalty, everybody continues to suffer until we enforce it.

At the CCA

"CCA Show Cause Order Directs Lawyers to Explain Untimely Filing," is the title of Mary Alice Robbins' report for Texas Lawyer.

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Simpson was executed November 18, as noted in this post.

More Commentary Following Robert Thompson's Execution

"Another life gone because of bad law," is the Fort Worth Star-Telegram editorial.  It appeared in the Friday edition.

On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed in Texas this year.

He should still be alive.

Not because he was a good man, because he wasn’t — or least he was not 13 years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were involved in the armed robbery of a Houston store in which clerk Mansoor Bhai Rahim Mohammed was killed.

Evidence showed that Butler shot Mohammed to death, and for this act a Harris County jury sentenced him to life in prison.

Another jury sentenced Thompson to death.

Thompson was guilty of a crime that day. He shot a different store clerk, who survived the incident.

But now this criminal has fallen prey to a flawed, often-misinterpreted law and the callous decision of a governor focused on political ambition rather than justice.

The Thompson case speaks to the capriciousness of how capital punishment is applied in Texas: an actual killer gets to live while his accomplice dies for the same crime. It also brings into clear focus once again the bad piece of state legislation known as the "law of parties."

And:

On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a rare recommendation that the governor commute Thompson’s sentence to life in prison. Gov. Rick Perry, who is not obligated to follow the board’s recommendation, denied the request the afternoon of Nov. 19 and Thompson was executed 45 minutes later.

"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," the governor said in a statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."

Wrong, governor. There was a reason. You simply were blind to it.

The governor, who is engaged in a tough re-election campaign against U.S. Sen. Kay Bailey Hutchison, perhaps could not see past next March’s Republican primary.

In 2007, Perry did follow the recommendation from the Board of Pardons and Paroles in commuting the death sentence of Kenneth Foster six hours before Foster was to have been executed. Foster also had been convicted under the "law of parties" statute, but the governor did not cite that as his reason for the commutation. Instead, he noted his concern that Foster and his co-defendant had been tried together.

Texas is one of only five states with a law of parties statute. It is the only state that applies that law in death penalty cases.

The Star-Telegram Editorial Board is on record calling for the Texas Legislature to address this awful and misapplied law. Bad people should be held accountable for their crimes, but execution based on the law of parties is not right.

A half dozen people have died under this law. That’s six too many.

Patrick McCann, Thompson's attorney, wrote the OpEd, "Texans deserve public, open clemency process," for the Sunday Houston Chronicle.

I represent the indigent condemned. This means that I try to keep those men and women on death row from being executed. It is not all I do as a criminal defense lawyer, but it is what I started doing fresh out of law school 15 years ago, and it is a still a large part of what I deal with every day. I started doing this work out of a combination of the intellectual arrogance of a young man and a curiosity as to how this system worked. I have satisfied the second, and the first has been, as my father once told me it would be, beaten out of me pretty thoroughly. I have stayed in this work because I cannot find a morally acceptable way to walk away from something that needs doing.

My colleague, Rodney Brown and I, recently persuaded the Board of Pardons and Paroles to recommend sparing the life of our client, Robert Lee Thompson. We were grateful for that vote, and for the consideration of the men and women who serve on the board. We were both deeply saddened when Gov. Rick Perry declined to follow the advice of his own appointees and did not exercise his powers of mercy. That is how it goes in this line of work. I wish brighter and better people than me were doing it most days, but I wanted the reader to know this information before they decide whether to continue on.

I am not starting a debate on the death penalty, as people's opinions are their own on this topic. I am simply here to discuss whether it is time we as a state looked hard at the way we decide who is or is not worthy of mercy, and thus, how our clemency and pardon process works. I cannot think of a better time to do this than around Thanksgiving, and as we approach the celebration of the life and death of history's most well known wrongfully convicted man. One of that gentle man's last acts was to forgive a condemned thief, if I recall correctly. We could probably do well to relearn this lesson.

And:

Our current procedures for requesting either a pardon in a noncapital case or a commutation of sentence in either a capital or noncapital case do not require an actual hearing. They do not require a public meeting, open to those who wish to attend. They do not require any explanation to the public for whatever reasons a person's request to have such relief was denied. They require no record, no witnesses, no affidavits, no depositions, nor even a short explanation of the board's reasoning, or the governor's in those rare cases where the two views diverge on a particular case. There is no rational standard for deciding when to grant commutation in non-capital cases, as no one seems to know or to have laid out when too much time is enough. To any outsider, the process seems shrouded in mystery, or at the very least difficult to understand.

This is a shame, because having dealt with the people whom the governor appointed to the Board of Pardons and Paroles, I have found them to be dedicated and hard-working men and women who take their jobs quite seriously. They deserve a more open procedure, one that would inspire confidence in the people of the state, who could see their system hard at work, and who could review the notes or witness statements of an open, public process. This is not what we have now, and it is a shame. It is a shame because given the number of individuals who have been publicly exonerated by the Innocence Project, and given the impact of the Texas habitual offender laws, it would seem sensible to have some process to correct or mitigate the impact of bad laws, mistakes in trials or the actions of corrupt police or other public officials. As it stands now, we do not, at least not in reality. The Houston Chronicle and other news agencies have detailed at some length the lack of clemency here in Texas, and the truth is that there are literally thousands of individuals who are in prison for nonviolent crimes, often for lengthy terms that do not comport with any actual public threat. They deserve the real chance for commutation. Likewise, there are individuals who finished their terms of sentence for minor crimes years ago and went on to lead enormously productive lives as law-abiding citizens. They merit the opportunity for an actual pardon. Finally, there are the wrongfully convicted, who deserve some accessible and open process to clear their names. As has been sadly shown these last few years, that process does not yet truly exist. Courts are reluctant to admit mistakes, nearly as much as police, prosecutors and defense attorneys.

All Texas citizens deserve to have an open, public clemency process, with actual mandated hearings, by which deserving individuals, without the intrusion of politics, can present recorded evidence of rehabilitation, reform, mitigating evidence and even actual innocence, in order to have a means of ensuring that the original results in their cases were the just ones. Whether that comes from a change in the rules the board uses, or an actual constitutional amendment to make that system a reality, it needs doing. The Supreme Court has always believed, perhaps a bit hopefully, that the clemency process could correct the all too human possibility of errors in the system. It is time we made that hope the truth here, and gave Texans a system that could be a model for others across the country. Shakespeare once wrote, in his play The Merchant of Venice, that “mercy is mightiest in the mighty.” It is time we proved that.

Earlier coverage begins is here and here.  More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

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

A Bradley Family Profile

Gary Scharrer writes the profile, "For Bradleys, it's all in the family – except for politics," for the San Antonio Express-News.

Hard-nosed Texas prosecutor John “Marty” Bradley supports the death penalty. His mother, Shirley Bradley, remains a fervent opponent of it.

Her oldest son, John “David” Bradley, is an outspoken Republican leader among the social conservatives on the State Board of Education. His mom proudly keeps his campaign bumper sticker on her car — along with a bumper sticker promoting Democratic Party icon Hillary Clinton.

Not surprisingly, Shirley Bradley enforces a firm rule when the family gathers for holidays and other occasions: No talking politics or religion.

“It's my rule. ... Those are just forbidden subjects,” the Houston family matriarch says. “We all have heard each other's opinions enough. It was nonproductive. I want to have happy times with them. I respect their opinions. I don't agree with them, but I taught them to have opinions.”

And her two older sons certainly have strong opinions. Both are named John, although the oldest goes by David. Count him among the State Board of Education leaders who helped weaken the teaching of evolution in public school classrooms, pushed phone-tics and back-to-basics reading skills and led an effort to ditch a “fuzzy math” textbook for third-graders.

John Bradley, 50, known as “Marty” among family and friends, is 11 months younger than David. He has a law-and-order reputation as the district attorney in GOP-strong Williamson County just north of Austin. His profile recently was raised when Gov. Rick Perry, in a controversial move, named him the new chairman of the Texas Forensic Science Commission — replacing a chairman who had led the panel's investigation of disputed arson evidence in an execution case.

And:

She recently attended John Bradley's hearing before the Texas Senate Criminal Justice Committee, where he faced some sharp questioning by senators concerned that Perry chose him so he would delay a probe into the arson science that led to the conviction and execution of Cameron Todd Willingham.

She sometimes clips newspaper articles and underscores her agreement with her sons — when she can. David Bradley said he knows they are on opposite sides when the note ends with a simple: “We love you.”

Their mother said she and her husband raised the boys to learn values, integrity and to always be honest, “because if you don't have honesty, you don't have much going for you,” she said. “We encouraged them to have an opinion, gather evidence and enough information to know what you are talking about. Don't just talk.”

Shirley Bradley is equally proud of her two younger sons: Tim Bradley, a commercial real estate broker in Wyoming, and Dan Bradley, a prosecutor-turned-defense lawyer in Houston.

Earlier coverage begins with the preceding post.

Chairman of Texas Forensic Science Panel Oversteps His Authority

That's the title of a Fort Worth Star-Telegram editorial.  It appeared in the Thursday edition.  LINK

What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?

Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives.

Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

The Legislature created the commission in 2005 to investigate complaints that state agencies were negligent or committed misconduct in handling forensic evidence, such as DNA analysis or toxicology, in criminal cases.

And:

Providing consistent and accurate information is an admirable goal. But all nine members of the Texas Forensic Science Commission are appointed independently. They are not subordinate to the chairman, who is not given any specific powers in the law creating the commission.

As public officials, panel members should be free to talk to the media or public as they choose, as long as they don’t undercut the commission’s responsibilities.

Each member should be focused on conducting credible, independent investigations with as much transparency as possible.

No one should use the agency as a tool for aggregating power, steering outcomes, stifling dissent or shielding from public scrutiny the work done on behalf of Texans.

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."