Texas Coverage of LI Status and the Chi Case

I'm going to start with John Moritz report in the Fort Worth Star-Telegram, which focuses on the Chi case, "Honduran ambassador seeks reprieve for killer."

The Honduran citizen who is set to die Wednesday for killing an
Arlington store manager should be spared from execution until the U.S. Supreme
Court decides whether lethal injection inflicts undue suffering, Honduras'
ambassador said Friday.

Ambassador Roberto Flores visited Austin on behalf of Heliberto Chi a day
after the high court halted the execution of Carlton Turner Jr. Turner's
attorneys argued that he shouldn't be put to death before the high court rules
on lethal injections.

Flores said it makes no sense to spare one inmate but not another.

"This execution should be stopped," he said. "We are requesting justice for
Honduras and mercy for Mr. Chi."

Houston attorney Terry O'Rourke, who is representing the Honduran government,
said he plans to be in court Monday on Chi's behalf to seek a stay on the same
grounds that Turner used.

And:

Flores said Chi was never told of his right under an international treaty to
speak with a representative of his home country before being questioned by
Arlington police.

The Supreme Court declined Tuesday to hear Chi's appeal on that point.

Flores and O'Rourke said authorities had ample opportunity to advise Chi of
his right to confer with the Honduran government.

If an American traveling abroad was about to be executed without being allowed
to speak with U.S. officials, O'Rourke said, "We'd be ready to send in the
Marines."

On Oct. 10, the court is scheduled to hear arguments in another Texas case on
whether states are bound to follow the procedures in the so-called Vienna
Treaty, which was signed by the United States, requiring that foreign
nationals accused of crimes outside of their countries be allowed to solicit
advice from their embassies or consulates.

Chi's attorneys are also asking the Texas Board of Pardons and Paroles and
Gov. Rick Perry to intervene. By law, Perry may issue clemency or commute a
sentence only if the parole board recommends it.

He can however, issue a one-time 30-day reprieve to allow an inmate to pursue
further appeals.

The Houston Chronicle has, "Texas executions probably on hold until next year."

Perry believes the fate of death row inmates lies with the courts, said
spokeswoman Krista Moody.

"The governor does not have the authority to issue a moratorium nor does he
believe there's a reason for one," she said.

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said
Perry should issue a moratorium because the Supreme Court likely will grant a
stay in every Texas execution until the Kentucky case is decided.

Whitmire noted that Perry, until overturned by the Legislature, attempted to
use his executive order power to require teenage girls to be vaccinated
against a sexually transmitted disease.

"If he can tell a state agency to vaccinate people, I think he can tell a
state agency not to execute people," Whitmire said.

District trial courts could withdraw existing execution dates or chose not to
set new ones, said David Dow, a University of Houston Law Center professor who
filed the motions for stays for Turner and Richard.

"If trial courts don't act, all of these inmates will file challenges probably
in state court the way Carlton Turner did," he said.

"I would predict in the next case at least one of the (Texas Court of Criminal
Appeals) judges would change their mind. I just can't help but think that will
happen."

Dow said he believes the Supreme Court might have been swayed by the Texas
court's narrow 5-4 decision not to grant Turner's stay.

"It's always better if you're going to have to go from the state to federal
court that the (vote) is 5-4 compared to 9-0," he said. "I think that was a
helpful fact."

The Dallas Morning News has, "Irving killer's reprieve may slow executions nationwide."

he reprieve in the case of Carlton Akee Turner, who confessed to killing his
adoptive parents in Irving in 1998, was the high court's first since agreeing
to take a Kentucky case questioning whether the three-drug cocktail used in
most lethal injections violates the constitutional ban on cruel and unusual
punishment.

But the court's 77-word order Thursday gave no indication of the court's
thinking and came two days after it denied another Texas appeal on similar
grounds, leading to the execution of death row inmate Michael Richard, who
raped and killed a nurse in 1986.

"I would absolutely not use the term moratorium to characterize where we are
right now," said David Dow, an attorney in both cases. Mr. Turner's appeal
"was the first case to go along following the Kentucky case that raised the
same question and that was clean procedurally."

The difference between Tuesday's execution and Thursday's stay of execution
was that on Tuesday, Mr. Richard's attorneys weren't able to file the
paperwork on time with the Texas Court of Criminal Appeals because of a
computer crash, he said.

Mr. Dow said the attorneys notified the court of the computer problems. But
the court would not stay open past 5 p.m. to accommodate them, and attorneys
instead had to file the appeal in a district court.

They then asked the Supreme Court to hear an appeal on the lethal injection
issue, but the high court had no jurisdiction to hear it without the lower
Texas Court of Criminal Appeals ruling.

"I think that Michael Richard got executed because the Court of Criminal
Appeals couldn't be bothered to stay open 20 minutes late so we could get all
our briefs in," Mr. Dow said.

Abel Acosta, chief deputy clerk for the court, declined to comment on whether
the court should have stayed open in a life-or-death situation.

"I'm not going to have a response to that," he said. "I advised the parties
that called that we closed at 5."

And:

After the high court accepted the Kentucky case, Alabama Gov. Bob Riley
granted a stay of execution to an inmate to give officials time to change the
lethal injection protocol. Several other states have placed a moratorium on
executions out of concern about the administration of the death penalty.

Dallas County District Attorney Craig Watkins said in a prepared statement
that "we do not intend to change any of the policies or procedures currently
in place."

But Kim Schaefer, who handles death penalty appeals for the DA's office, said
the lack of explanation in the Turner case has left many prosecutors frustrated.

"It feels like we're banging our head against the wall," she said. "Many DAs
may feel it's pointless to go forward with executions at this point – because
you know the litigation is going to happen, it may likely get stayed, and we
don't know the reason why."

The Austin American-Statesman has, "Are executions on hold nationwide?"  UT law prof Jordan Steiker is being quoted in the later paragraphs.

A better sense of the court's intentions could come Wednesday, when Texas is
scheduled to execute Heliberto Chi, a Honduran citizen convicted of killing a
Tarrant County store manager during a 2001 robbery. Chi's lawyers said Friday
they will seek a stay of execution based on the same challenge to lethal
injections that succeeded for Turner.

If the court continues to delay future executions, the nation's death chambers
could fall silent for the first time since the mid-1970s, when the Supreme
Court ruled that states were applying the death penalty in an arbitrary and
capricious manner in violation of the Constitution.

And because the court may not decide the Kentucky case until summer, the
potential to disrupt capital punishment could extend into fall 2008, Steiker said.

If the court requires changes in the way drugs are administered, states may
face additional legal challenges to the new protocols, causing further delays,
he said. But even if the justices find no problem with the current regimen of
drugs, it will take states awhile to renew execution programs, Stieker said.

The challenge by two Kentucky inmates is an unlikely vehicle for such a
significant impact, Steiker said.

"The litigation itself isn't taking on lethal injection. It doesn't claim that
there is no humane way to carry out executions," he said.

The Kentucky defendants are merely seeking enhanced safeguards to make sure
lethal injection drugs perform as intended: by sedating, relaxing and killing
without undue pain.

"In many respects, their challenge is quite modest," Steiker said.

Dallas public radio station KERA-FM has, "Governor Perry Says Death Penalty Moratorium Not Needed."

The lethal injection index is here.