The StandDown Texas Project

News from the Harris County District Attorney's Office

"Prosecutors disciplined in jury flap," is Brian Roger's report in last Friday's Houston Chronicle.

Saying they were negligent and incompetent when they struck seven blacks from the jury pool in a recent murder trial, Harris County District Attorney Pat Lykos castigated two of her prosecutors Thursday, docking their pay and removing them from trial work.

“I assume full responsibility for the incompetence of these two prosecutors,” Lykos said. “There is not invidious racism involved here, but negligence or incompetence, if you will. If I thought for a moment that there were racial motives, they would have been fired.”

“We didn’t make any decisions based on race,” Assistant District Attorney Rifian Newaz said. “I’ve never made any decisions based on race.”

Newaz, who is South Asian, declined to comment further. Co-counsel Mark Donnelly, who is Latin American, declined to comment.

Lykos said Terrance Windham, a division chief who oversees prosecutors in five of the county’s 22 felony courts, spent Thursday investigating Donnelly and Newaz.

Windham, who is black, said he didn’t believe Donnelly and Newaz meant to put 10 whites, two Hispanics and a white alternate on the jury in the murder trial of a black defendant.

“They were shocked when the 12 people were called from the panel to the jury box. They were shocked that they didn’t see any African-Americans,” Windham said. “That’s when they realized they had stricken all the African-Americans from the jury.”

“That indicates negligence,” Lykos added.

The defense attorneys who represent Ricky Whitfield disagreed with Windham, saying that Donnelly and Newaz relied on stereotypes — that whites are more conservative and blacks are more liberal — to exclude the black panelists.

“It’s the stereotype associated with being black that caused the prejudice in the first place, which is the nature of racism. It’s the basis for it,” attorney Jacquelyn Carpenter said.

"Promise of new DA," is an unrelated item from Texas Lawyer's Inadmissible column.  This appeared in the March 9 edition.

Harris County District Attorney Pat Lykos , who took office Jan. 1, has attempted to deliver on some of her campaign promises to reform the office.

On March 2 she announced she would launch "a new discovery agreement that will ensure transparency and fairness in the administration of justice." No longer will Harris County criminal-defense lawyers have to troop to prosecutors' offices or the courthouse to take notes from police offense reports, as had been the longstanding practice. Instead, Harris County prosecutors now will provide the defense with copies of witness statements, photographs and other documentary evidence the prosecution intends to introduce at trial.

"It is my fundamental belief that convictions based upon evidence that has been disclosed builds public trust and confidence in the justice system. Justice demands and the community deserves that prosecution be vigorous, but be conducted within Constitutional boundaries. Under this new discovery plan, I expect that the cases will be resolved more rapidly because of a more informed process," Lykos wrote in a March 2 statement announcing the change.

Dallas County has adopted an open file policy, as well.  The electronic open case system practiced in Tarrant County is widely regarded as a model practice.

Georgia and LWoP

"Life with no parole: It's use may expand," is the Florida Times-Union report about Georgia legislation poised to become law.  It's written by Teresa Stepzinski.

A measure that would allow prosecutors to seek life without parole sentences in non-death penalty murder cases awaits Gov. Sonny Perdue's signature after the measure passed unanimously in the Georgia House and Senate.

Purdue hasn't commented publicly about the measure that passed last week, but lawyers on both side of murder cases have.

Georgia's district attorneys support the bill, but many defense lawyers oppose it.

"We backed the life without parole bill because some murderers never deserve to see the light of day ... This legislation gives us a way to see that a person never gets out of prison to kill someone else," said Rick Currie, district attorney of the Waycross Judicial Circuit and president of the District Attorney's Association of Georgia.

In Georgia, life without parole is now a sentencing option only in death penalty cases. Regardless of the evidence or wishes of the victim's family, prosecutors first have to seek the death penalty - a lengthy and expensive process - in order to get a sentence of life without parole.

The association asserts the change will allow prosecutors to put more killers in prison and keep them there. It also will save taxpayers' money because prosecutors no longer will have to mount a lengthy and expensive death penalty prosecution when life without parole is the sentence they want.

"District attorneys can't seek the death penalty in every case. It may be because of not enough evidence to prove the [legally mandated] aggravating circumstance or because of the input of the victim's family. Or it may be because some counties simply can't afford a death penalty trial," Currie said.

And:

And as the session is just days from its close, other death penalty legislation remains in limbo.

A proposal that would allow a jury to impose the death sentence by a non-unanimous verdict has hit a legislative brick wall. The bill would allow a judge to impose the death sentence if at least 10 of 12 jurors support it.

Georgia law states only a jury can impose the death penalty, and its verdict must be unanimous.

Prosecutors statewide have mixed opinions about the measure. Because of the diversity of opinions among its members, the association didn't take a position on the measure, Currie said.

And:

Other unrelated bills intended to change Georgia's death penalty law died either in House or Senate committees.

Those measures include a bill that would have lowered the standard of proof for mental retardation from beyond a reasonable doubt to a preponderance of the evidence.

Two bills that would have shortened habeas corpus appeal process in death penalty cases, as well as a measure proposing a two-year moratorium on executions, died in committee.

The Georgia State Assembly is set to adjourn this Friday, April 3.  Earlier coverage of the legislation, SB 13, is here.

Formula for Failure

That's the title of an editorial in today's Sarasota Herald-Tribune about budget problems in Florida's indigent criminal justice system.  LINK

Florida's recession-driven budget crisis provides little time for legislators to think about transforming criminal-sentencing laws and prison policies.

But the state's dire straits provide a lot of incentives for overhauling statutes and rules that drive up the costs of the justice system -- and, in many cases, don't promote public safety.

As Todd Ruger reported in Monday's Herald-Tribune, proposed reductions in the current fiscal year's budget may require state prosecutors and public defenders to place their staffs on temporary, unpaid leaves. Furloughs would be preferable to staff layoffs, but add them to cuts in the budgets for courts, probation officers and prisons, and Florida has a formula for failure.

More cases will be delayed, more victims will be denied justice, more innocent people will fill local jails and more convicted inmates will be released from state prisons -- before their sentences expire -- without adequate supervision.

Something has to give

Unless the Legislature and Gov. Charlie Crist are willing to solve this budget equation by raising revenues through taxes, something has got to give. Under the status quo, Florida simply can't afford to maintain its mandatory-minimum sentencing laws, its death penalty statutes and its mandate that state prisoners serve 85 percent of their sentences -- at least not without violating constitutional rights, endangering corrections personnel, ending rehabilitation programs and releasing inmates who are likely to return to both crime and prison. All of these results will have high costs to society and the system that is already in crisis.

The news report referenced in the editorial is, "Furloughs may clog courts,"written by Todd Ruger.

The criminal court system in Manatee and Sarasota counties could come to a virtual standstill on certain days during the next three months as budget shortfalls force furloughs for the employees who keep it running.

The public defender's office could close completely as employees take up to 10 days of unpaid leave. Prosecutors are considering six-day furloughs, but the office will remain open.

Revenue is also down at the Sarasota County clerk's office, meaning the employees who file and process court paperwork will have to take an as-yet-undetermined number of furlough days.

"The danger here is that the furloughs will cause backlogs in our current cases," 12th Circuit Chief Judge Lee Haworth said. "My big concern is docket congestion."

The offices will continue to staff the most critical court functions, such as holding hearings within 24 hours for people who are arrested. Public defenders say they will still appear in court to represent clients on those days, even if they are not getting paid, so clients do not get arrested or kept in jail.

But the cases will not move as quickly through the system if attorneys are not working, and all the while new arrests are certain to be made.

That jump in pending cases can affect the whole system, from increasing the number of inmates in the jail to increasing caseloads for attorneys and judges who then will have less time for each case.

Public defender and state attorney offices across the state face the same budget crisis after learning the state is withholding 15 percent of their budgets through July. Many already are operating with open positions and have endured layoffs.

"As we have hung to the cliff by our fingernails, this 15 percent cut is the boot stomping our hands," the Florida Prosecuting Attorneys Association wrote to Gov. Charlie Crist this week.

The Legislature has not finalized the withholding, so the numbers could change. The cutback affects each circuit differently, depending on how each has dealt with previous budget cuts.

But the public defenders and prosecutors say the cuts already come late in the fiscal year, which ends in June, making furloughs the only option.

Feingold Is Eager for Some Victories

That's the title of an article in Roll Call this morning on U.S. Senator Russ Feingold of Wisconsin.  It's written by Jessica Brady.  LINK

Sen. Russ Feingold’s (D-Wis.) early moves this year to ban the death penalty and amend the Constitution look like the bold strokes of a liberal lawmaker feeling liberated by a Democratic White House.

But despite the steady stream of bill introductions and press releases, Feingold’s frenetic pace and legislative to-do list are remarkably consistent even in an air of change ushered in by President Barack Obama.

“My level of activity is the same it’s always been. There’s just a greater possibility of actually accomplishing things,” Feingold said. “There’s a much higher comfort level with the president now than before.”

In Obama, Feingold has found a fellow Midwesterner and former constitutional law professor who shares a passion for legal issues and government oversight.

He has also found an ally on the other end of Pennsylvania Avenue interested in banning alleged torture techniques used during the Bush administration and focusing on “restoring the rule of law.”

“There are things the president can do on his own,” Feingold said, pointing to Obama’s early moves to close the Guantánamo Bay prison in Cuba and end the use of torture when interrogating terrorism suspects.

But Feingold does not want to stop there.

The lone Senator to vote against the USA PATRIOT Act in 2002, Feingold wants to end wiretapping and surveillance programs authorized under the controversial law. He penned a letter to Obama shortly after Election Day asking the president-elect to take “concrete steps to restore the rule of law after the eight-year assault by the Bush Administration,” and to support a complete overhaul of the Foreign Intelligence Surveillance Act.

Earlier coverage is here, noting the introduction of S. 650, the Federal Death Penalty Abolition Act of 2009.

News Coverage from Montana

"House panel votes down bill to abolish the death penalty," is Mike Dennison's report in the Helena Independent Record.

A House committee this morning voted down the bill to abolish the death penalty in Montana, likely killing the bill.

On an 8-10 vote, the House Judiciary Committee against Senate Bill 236, which would abolish the death penalty in the state and replace it with a sentence of life in prison without parole.

All nine Republicans on the evenly split committee voted against the bill, as did Democratic Rep. Arlene Becker of Billings. The panel’s remaining eight Democrats voted for the measure.

Unless supporters of SB236 can somehow change a vote in the committee or revive the bill on the House floor -- which is unlikely -- the bill is dead. The measure had been approved by the Republican-controlled Senate last month.

Committee members on both sides of the issue often cited religious and biblical reasons or justifications for their vote today.

And:

Rep. Mike Menahan, D-Helena, who works as a county prosecutor, said he supports the bill because of the incredible cost of carrying out the death penalty, both monetarily and in the public’s faith in the system.

“I think having the death penalty does more to undermine the public’s faith in their laws and the criminal justice system and the system’s ability to treat people fairly almost more than any other thing,” he said. “I think those costs far outweigh anything that we gain from having the death penalty.”

The Great Falls Tribune carries an AP report, "Montana to keep death penalty."

Montana lawmakers decided Monday that the state will be keeping its death penalty, likely ending a strong push to ban the punishment this year.

measure to end capital punishment had passed the GOP-controlled Senate, giving-death penalty opponents hope that it could clear the Legislature this year — especially after New Mexico lawmakers passed a ban earlier this month.

But the Montana House Judiciary Committee voted 10-8 against the ban. It would be difficult, but not impossible, for those pushing the ban to bring the bill back this year.

Supporters of Senate Bill 236 argue that enforcing the death penalty costs more than mandatory life in prison without parole, and that the risk of executing an innocent man is too great. The supporters of a ban also said the death penalty is unethical and is hard on employees of the justice and corrections systems.

And:

Two inmates are on death row in Montana. One is Canadian Ronald A. Smith, who has been the subject of some debate in his home country over whether to keep seeking clemency that would change his penalty to life in prison. In the early 1980s Smith was convicted of a double murder.

Montana has executed three people since reinstatement of the death penalty in the 1970s. The most recent execution, of convicted murderer David Dawson, occurred in 2006.

StandDown's coverage of the vote, with links to earlier coverage, is here.

Texans for Public Justice Files Complaint Against Keller

The watchdog group Texans for Public Justice has filed a criminal complaint against CCA Presiding Judge Keller over her failure to disclose assets in required annual filings with the Texas Ethics Commission.

TPJ has issued the news release, "TPJ Criminal Complaint Alleges That Judge Keller Hid Assets Worth Millions - County Attorney, Ethics Commission Urged to Investigate Top Criminal Judge."  Here's an excerpt:

Texans for Public Justice filed two complaints today alleging that Texas Court of Criminal Appeals Presiding Judge Sharon Keller illegally failed to disclose millions of dollars worth of real estate holdings in sworn personal financial disclosures filed with the Texas Ethics Commission. State incorporation records also list Judge Keller as an officer or director in family companies and a family trust, yet Keller did not disclose these affiliations, as required by law.

TPJ’s complaints follow up on revelations recently reported by the Dallas Morning News.1 Officials who fail to comply with Texas’ personal-financial disclosure laws are subject to a Texas Ethics Commission fine of up to $10,000. Travis County Attorney David Escamilla also can prosecute such Class B criminal misdemeanors, which carry a maximum penalty of $2,000 and six months imprisonment.2

Apart from Texas’ top criminal judge standing accused of committing a crime, these allegations are significant because Judge Keller has asked the state to pay her legal bills in an unrelated case before the State Commission on Judicial Conduct. Responding to charges in that case last week, Keller attorney Chip Babcock asserted that forcing Judge Keller to foot her own legal bills would be “financially ruinous.” This arguably was a false claim if Judge Keller has been hiding millions of dollars in assets that she was legally required to disclose to the public. The State Commission on Judicial Conduct case stems from Judge Keller’s alleged refusal to receive a last-minute appeal hours before death-row inmate Michael Richard was executed in September 2007.

You can view TPJ's letter to Travis County Attorney David Escamilla and the Texas Ethics Commission.  Earlier coverage begins here.

Whatever Judge Keller Is Hiding, It's Not Good Sense

That's the title of an editorial in today's Dallas Morning News, fresh on the heels of DMN journalist Steve McGonigle's reporting that the CCA Presiding Judge failed to disclose assets on her required ethics filings.  LINK

Just what is Judge Sharon Keller trying to pull?

The controversial presiding judge on the Texas Court of Criminal Appeals has claimed it would be "financially ruinous" to have to defend herself against ethics charges stemming from her infamous conduct in the Michael Richard death penalty appeal case. When that didn't work to get the charges dismissed, Keller asked Texas taxpayers to foot the bill for her defense before the state Commission on Judicial Conduct.

Surprise, surprise: Keller's no indigent. As The Dallas Morning News' Steve McGonigle revealed yesterday, the judge failed to disclose more than $2 million in real estate holdings, as required by law. She might even be far wealthier than that; McGonigle's report concerned only those assets the judge is forced by law to declare publicly.

Did Keller intentionally hide this financial information from the public, or was this merely an incompetent oversight? Only Keller knows for sure.

What we have, then, is a multimillionaire jurist concealing her assets and pleading poverty for the sake of a state subsidy. Whatever the legal ins and outs of this sorry mess, in the court of public opinion, this is an open-and-shut case of facts evasion.

Whether the disclosure flap is a sin of commission or omission, it reveals that a top Texas judge lacks something essential to the performance of her job: good judgment.

Then again, that was clear when her petty refusal to keep the courthouse doors open past 5 p.m. to accommodate computer problems sent inmate Michael Richard to an untimely death.

McGonigle's enterprise reporting is noted in this post.  Today's Austin American-Statesman carries the AP report, "Criminal appeals judge failed to disclose assets."

The highest criminal court judge in Texas failed to disclose nearly $2 million in real estate holdings and claimed it would be "financially ruinous" to pay lawyers to fight misconduct charges that could get her removed from the bench.

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is seeking dismissal of charges by the state Commission on Judicial Conduct that she violated her duties in a death penalty case.

he commission says Keller cast "public discredit on the judiciary" for not keeping court offices open after 5 p.m. on the night in 2007 that Michael Wayne Richard was executed. The commission said the closing prevented Richard's lawyers from filing a late appeal that might have saved him from lethal injection a few hours later. Richard raped and murdered a Houston-area woman in 1986.

A sworn statement Keller filed with the Texas Ethics Commission last year did not abide by legal requirements that she disclose her ownership interest in seven residential and commercial properties in Dallas and Tarrant counties, The Dallas Morning News reported Monday. The newspaper said the value of those properties was estimated at $1.9 million.

Among Keller's unlisted properties are two Dallas homes valued together at a little more than $1 million. Keller is listed as sole owner under Sharon Batjer, her married name. She divorced in 1982. Another omission is commercial land next to Keller's Drive-In, a landmark Dallas hamburger restaurant operated since 1965 by the judge's father, Jack.

Keller's filing to the ethics commission listed income of more than $275,000, including her $152,500 salary. County tax records estimated the value of properties she did claim, including her Austin home, at $1 million.

Keller has denied wrongdoing in the Richard case.

When contacted by The Associated Press about the real estate holdings, Keller's office referred comment to her attorney, Chip Babcock, who didn't immediately return a call.

The judge has argued that the misconduct charges violate her constitutional right to counsel because the state refuses to allow Babcock to represent her at taxpayer expense. Babcock said he's willing to represent Keller for almost nothing, but he told the newspaper that the state ethics commission would not clarify whether that was an ethics violation.

Earlier coverage begins here., including the State Commission on Judicial Conduct's original complaint.

Jose Briseno

Jose Briseno is scheduled to be executed by Texas on Tuesday, April 7.  A clemency petition has been filed on his behalf with the Texas Board of Pardons and Paroles.

Supporters of Mr. Briseno are urging people to learn about his case and sign an online petition calling upon the Board of Pardons and Paroles to recommend clemency to Governor Rick Perry.

Mr. Briseno's attorney, Richard Burr, has prepared this video about Jose Briseno and his case.

In a recent string of cases the Board has failed to consider an inmate's rehabilitation, and Jose Briseno's case involves this and other serious issues.  The Board has a responsibility to examine this case and take the time it needs to make an informed decision.

TCADP has more on this case, here.

Imprisoned by the Past: The Enduring Role of Race in the American Death Penalty

That's the title of a symposium to be held Thursday, April 16 at UT Law.  It's presented by the UT Law's Capital Punishment Center and co-sponsored by the William Wayne Justice Center for Public Interest Law.

It will be held Thursday, April 16 in the Eidman Courtoom at UT Law.

The entire day is filled with national experts on race and capital punishment.  Program details are here.

Bryan Stevenson will give the keynote speech, which is sponsored by the American Constitution Society.  Stevenson is executive director of the Equal Justice Initiative based in Montgomery, Alabama.

Montana House Judiciary Committe Tables SB 236

The vote to table was approved by a vote of 11 yes, 7 no. The motion to table likely has the effectively of killing the bill for this legislative session.

The Judiciary Committee agreed to table the bill after a vote to move the bill to the full House failed by a vote of 8 yes, 10 no. 

SB 236 passed the Montana Senate on February 17, as noted in this post.  The Montana legislature adjourns April 21.

Senator Dave Wanzenried is the author.  Earlier coverage begins with this post.

Virginia Death Penalty Expansion Vetoed

As expected, Virginia Governor Tim Kaine vetoed legislation that would have expanded the state's death penalty.  AP reports, "Va. governor vetoes bills to expand death penalty,"via Google News.

Gov. Timothy M. Kaine vetoed legislation Friday that would have extended the death penalty to murder accomplices, a measure that would have increased the population eligible for execution in the nation's second-busiest death chamber.

It was the third consecutive year that Kaine, a Democrat, has vetoed bills to expand Virginia's "triggerman rule," which reserves the death penalty only for those who commit a murder.

"While the nature of the offenses targeted by this legislation is very serious, I do not believe that further expansion of the death penalty is necessary to protect human life," Kaine said in a statement announcing the vetoes.

Virginia has executed more inmates than any other state except Texas since the U.S. Supreme Court reinstated capital punishment in 1976. During his tenure as governor, Kaine has allowed nine executions and commuted one sentence. Currently, the state has 15 inmates awaiting execution on death row.

And:

Those bills passed the General Assembly with veto-proof majorities, so it is possible lawmakers could override him when they reconvene April 8. The legislation extending the death penalty to accomplices was a few votes shy of becoming veto-proof in the Senate.

"Kaine vetoes death-penalty, gun bills," by Tyler Whitley is from the Richmond Times-Dispatch

As expected, Gov. Timothy M. Kaine yesterday vetoed five death-penalty bills and a bill that would allow holders of concealed weapons permits to carry guns into bars and restaurants.

Kaine may have trouble sustaining his veto of a couple of the death-penalty measures when lawmakers reconvene in Richmond on April 8.

Two of the bills would extend eligibility for the death penalty to murderers of auxiliary police officers. Another would extend eligibility for the penalty to murderers of fire marshals.

Each passed both houses of the General Assembly by a veto-proof majority. Two-thirds of the members of each body are required to override a veto.

As he did a year ago, Kaine likely will succeed in sustaining his veto of the two so-called "triggerman" bills. They would extend the death penalty to an accomplice who helped plan, but did not actually commit a murder.

"Virginia is already second in the nation [to Texas] in the number of executions we carry out," Kaine said in explaining his vetoes.

"While the nature of the offenses targeted by this legislation is very serious, I do not believe that further expansion of the death penalty is necessary to protect human life."

Earlier coverage begins here.

End Could Be Near for PD Council

That's the title of a report in today's Fulton County Report regarding the Georgia indigent defense entity.  It's subtitled, "House committee approves SB 42 to move control of state's indigent defense system to governor, Legislature," and is written by Andy Peters.

Legislation that would give the governor and Legislature full control of the state's indigent defense system moved a step closer to passage Friday.

A House committee on Friday morning approved legislation to remove policy-making authority from the Georgia Public Defender Standards Council. The House Judiciary (Non-Civil) Committee approved Senate Bill 42 by a vote of 5-4.

The legislation now goes to the full House for consideration. If the House approves SB 42, it must go back to the Senate because the House changed the bill from the version passed by the Senate. Three days remain in this year's General Assembly.

Legislators have been sparring for months with the 15-member Georgia Public Defender Standards Council over the costs of running the indigent defense system. At a House committee meeting earlier this month, the sponsor of SB 42, Sen. Preston W. Smith, R-Rome, described the council as arrogant and dysfunctional and at odds with its own executive director.

During that committee hearing, “it became very obvious to many of us that the current system was simply not working,” Rep. Richard M. Golick, R-Smyrna, chairman of the House Judiciary (Non-Civil) Committee, said during Friday's meeting. Representatives from the Standards Council “never came up with a better model,” Golick said.

SB 42 would abolish the Standards Council, replacing it with the advisory-only Georgia Public Defender Agency. The agency's director would be appointed by the governor and would set the budget for indigent defense, subject to legislative approval.

The Standards Council has been in a financial crisis almost since its creation in 2003. On March 9, the Georgia Supreme Court ordered the council to pay about $69,000 to two private attorneys who represented a man charged with murder in 1995.

In spite of its funding woes, the council's members and supporters argue it is the state's constitutional obligation to provide an adequate legal defense to indigents. In February, the council defied Perdue's order to submit a budget of $36 million, voting instead to ask for more than $48 million, the amount the council said was necessary to fulfill its constitutional obligations.

The Sunday Atlanta Journal Constitution carried an editorial column, "Public defender system fails Georgians and their lawyers," by Marie-Pierre Py.  She's a former staff attorney in the Walton County Public Defender’s Office.

I am a young attorney who reluctantly resigned last month from the Walton County public defender’s office because I drove home on a daily basis knowing that I was not providing effective representation to my clients. This was largely because of overwhelming caseloads, representing clients with conflicting interests, a woefully insufficient budget for experts, lack of adequate training and supervision and an insufficient investigative staff with little to no training.

In the 13 months I worked as a public defender, I closed approximately 900 cases, a number which included probation revocations, misdemeanors, as well as felonies. Throughout this time, I had approximately 270 open cases at one time, though not all of these were yet indicted or accused.

In order to close this many cases in 13 months, an attorney devoting 50 hours per week to case work, taking no vacation time or sick leave, would have only three hours to devote to an individual case, including court time and meeting with the client.

The caseload pushed attorneys to approach each case with a cursory review aimed at identifying the few cases to which our meager resources would be directed.

Time and again, attorneys allowed clients who indicated an inclination to plead guilty to do so without an examination of the client’s reasoning (which may well have been a fear of the criminal justice system rather than an indication of guilt) and without a thorough examination of the prosecution’s case, let alone a full investigation of the case or an exploration of all possible defenses.

Budgetary constraints resulted in an appalling approach to cases of co-defendants who had conflicting interests. Generally, a lawyer cannot represent a client if there is a significant risk that the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation.

With the exception of serious felony cases, we were regularly instructed not to withdraw from cases even where an obvious conflict existed. The reasoning was that certain cases were likely to plead out and that by delaying the decision to recognize the conflict, the office could reserve funds for those cases most likely to result in a trial.

And:

I left the Georgia public defender system to work in one that imposes manageable caseloads, allows attorneys to fulfill their ethical obligations on conflicts of interest, funds expert requests and provides the training and supervision necessary to be an effective advocate.

Unless the system is changed in Georgia, it will not be able to attract and keep capable, conscientious lawyers and it will deteriorate even further.

Earlier coverage of indigent defense in Georgia begins with this post.

Editorial Roundup

The Capital of Annapolis published the editorial, "Messy death penalty bill less a 'reform' than a quasi-repeal," in the Sunday edition.

Gov. Martin O'Malley is a pragmatic politician. But perhaps he let some romantic idealism color his thinking when he expected the General Assembly to have a clear-cut debate on the moral reasons for accepting or rejecting the death penalty.

Most legislatures don't operate that way. It's certainly not the way the General Assembly operates - as is demonstrated by the muddled capital punishment "reform" bill the legislature is dropping on O'Malley's desk.

O'Malley's objections to the state taking the lives of criminals through its judicial system are rooted in his personal views on morality. But he got a backdoor way to impose those views on Marylanders in December 2006, when the state's highest court ruled that there had been a procedural error in adopting the state's regulations for lethal injections.

Since then, O'Malley has delayed offering new regulations. At first, he was obviously hoping federal courts would scrap capital punishment. Then he hoped the General Assembly would end the death penalty in Maryland. To get this done, he was willing to back a questionable parliamentary maneuver that put a repeal bill on the state Senate floor after it had been rejected by a Senate committee.

His reward was that the senators immediately bolted away from repeal and turned the bill into something he hadn't contemplated - a way, supposedly, to ensure that innocent people aren't executed. You might call what emerged the CSI Maryland death penalty bill.

Under its provisions, a capital case must be built on biological or DNA evidence, a videotaped confession, or a videotape linking the defendant to the killing. The bill doesn't define these three requirements well. And it doesn't allow convictions that rest on fingerprint evidence. Or a still picture linking the defendant to the crime. Or undisputed eyewitness testimony.

Obviously, few potential death penalty cases can meet such lofty standards, the most limiting in the country. This is fine with most legislators. They will be able to stop the death penalty from being used in nearly all cases, without having to stand up and express points of view with which the majority of their constituents disagree.

The Virginian Pilot has the editorial, "The death penalty dies in New Mexico."

NEW MEXICO last week became the 15th state without capital punishment. It happened not because of a judge's ruling or a botched execution, but because the legislature and the governor decided the death penalty is too costly, the chance for error too great, and executions don't deter crime.

Gov. Bill Richardson, a Democrat who previously supported capital punishment, said signing the bill was "the most difficult decision" of his political life but that "the potential for... execution of an innocent person stands as anathema to our very sensibilities as human beings."

He visited death row, saw the execution chamber and agreed with a majority of the state's lawmakers that life in a prison cell "may be worse than death."

Practically, the change won't make a difference in the statistics. Only one person has been executed in New Mexico since 1960, and the state's two death row inmates will remain there even after the law takes effect in July. But symbolically, the decision speaks to an awakening among the public that the penalty has been too often carried out on the wrong people.

Several states, including Montana, are considering legislation to abolish the death penalty. Meanwhile, Virginia is heading in the wrong direction. Lawmakers passed three bills this year to expand capital punishment. Gov. Tim Kaine, who has vetoed such expansion efforts before, has not acted on the legislation.

And:

This page has long argued that capital punishment serves the basest instinct of society: retribution. As Albuquerque Sen. Gerald Ortiz put it, "We are the last Western society that holds onto it. It makes us less than we should be."

New Mexico - and New Jersey before it - show Virginia a better path, one that as Richardson said, will keep citizens safer. The guilty will never get out of prison. And the state won't kill someone who turns out to be innocent.

Earlier coverage from the Maryland legislation is here; Virginia legislation, here.

Dallas Morning News Editorials

The Dallas Morning News, which supports abolition of the death penalty, keeps its spotlight on the Texas Legislature with two editorials this weekend.

First is, "Don't prejudice juries against mentally retarded."

Seven years have passed since the U.S. Supreme Court ruled that executing the mentally retarded was unconstitutional. Yet the state of Texas has stubbornly resisted writing guidelines for fairly determining whether a defendant is mentally retarded.

Long overdue legislation would lay out a process aimed at delivering an objective assessment of a defendant's mental capacity.

In Texas, defense attorneys don't have the option of seeking a ruling on this question before or during a capital murder trial. Right now, the issue of mental retardation is raised during the punishment phase – after the jury has returned a guilty verdict.

By then, the 12 men and women on the jury have spent weeks in the courtroom immersed in the gruesome details of a deadly crime. Once they've convicted the defendant, they are asked to make a life-or-death decision about whether he is mentally retarded.

To expect jurors to make a dispassionate determination after the trial is unreasonable. Several similar bills filed in the House and the Senate – including HB 1152 and SB 167 – would eliminate that inherent prejudice.

And:

Money aside, the primary objective is to create a process that abides by the Supreme Court's ruling.

Executing the mentally retarded is cruel and unusual punishment. Adopting this legislation would add an important and humane safeguard.

HB 1152 by Representative Senfronia Thompson was heard by the Death Penalty Subcommittee of the House Criminal Jurisprudence Committee last Thursday, as noted in this post.

The Morning News also carried the editorial, "Progress, pitfalls in Legislature," which examined several issues.

Concern over capital punishment has prompted formation of a special House subcommittee to hear more than three dozen reform bills. It is chaired by Mesquite Rep. Robert Miklos, a former prosecutor who is giving the measures a careful airing.

Even with predominant pro-death-penalty sentiment in the Capitol, we trust lawmakers will find merit in bills forbidding joint trials for capital murder co-defendants and gamesmanship that pits one against the other to secure a death sentence. They should also support a bill allowing a condemned prisoner to witness his last reprieve being decided and one that guards against executing the mentally disabled.

Texas, the nation's leading execution state, also leads the nation in number of DNA exonerations. That ought to chill to the bone, so much so that lawmakers get behind legislation for a hiatus in Huntsville's death chamber until the entire capital punishment system can be dissected.

More Woes for CCA Presiding Judge Keller

"Judge Keller's disclosures omit nearly $2 million in real estate, public records show," is Steve McGonigle's report in today's Dallas Morning News.

The presiding judge of the Texas Court of Criminal Appeals, while seeking state aid to defend herself against ethics charges, failed to abide by legal requirements that she disclose nearly $2 million in real estate holdings, according to an analysis of public records by The Dallas Morning News.

Sharon Keller has sought dismissal of the charges on grounds that it would be "financially ruinous" for her to pay private counsel to fight allegations brought by the state Commission on Judicial Conduct that she violated her duties in a death penalty appeal.

Keller, the state's highest criminal court judge, faces possible removal from office if a special master agrees that she blocked a condemned inmate's last-minute effort to stop his execution in 2007 by refusing to extend the court's 5 p.m. closing time to allow his lawyers to file their plea. The inmate, Michael Richard, was executed within hours.

And:

The sworn statement Keller was required to file with the Texas Ethics Commission last April reflected income of more than $275,000, including her annual state salary of $152,500. It also showed that she owned at least 100 shares of airline stock, a home in Austin and one commercial property in Dallas. County tax records valued the properties at about $1 million.

Keller's statement did not list her ownership interest in seven other residential and commercial properties in Dallas and Tarrant counties. Those properties are valued collectively by county appraisal districts at about $1.9 million.

Among Keller's unlisted properties are two homes valued together at just over $1 million in the family's compound across from the Dallas Arboretum. Keller is listed as sole owner under Sharon Batjer, her married name. She was divorced in 1982.

The other omissions include two Keller-owned properties valued at about $823,000: a vacant commercial site in Euless and an occupied commercial property next to Keller's Drive-In on East Northwest Highway, a landmark hamburger restaurant operated since 1965 by the judge's father, Jack. Also not disclosed are three properties valued at $114,000 and owned by Keller's 27-year-old son, a law student whom she claims as a dependent.

The Texas Government Code requires state officeholders to disclose "all beneficial interests in real property" held by the official, a spouse or any dependents. Failure to comply could subject the officeholder to civil and criminal penalties.

The Texas Ethics Commission does not routinely check the accuracy or completeness of financial disclosure reports, only that they have been filed, said Tim Sorrells, the commission's deputy general counsel.

And:

Andrew Wheat, research director of Texans for Public Justice, the Austin-based watchdog group that monitors officeholder finances, decried Keller's omissions as an "extremely outrageous" betrayal of the public trust.

"It leaves one speechless to see so much left out of her personal financial statements on the one hand and then on the other hand to see her making her claims that hiring a private attorney would be financially ruinous," he said.

While it is possible that some of the properties might be exempt from disclosure, Wheat said, the majority of omissions appear to fall within the law's requirements.

"Is this an insane amount of carelessness year after year, in which case should this person be our highest criminal judge?" he said. "Is it willful hiding of assets, in which case that person probably isn't fit to be our top criminal judge? I don't know."

Earlier coverage of the State Commission on Judicial Conduct's complaint against Judge Keller begins here.

A Physician Reflects in Alabama

"State-sanctioned sin," is Robert Bladwin's OpEd in today's Montgomery Advertiser.  He is Birmingham physician and chairman of the Alabama Ear Institute.

It was June 1963 in Tuscaloosa, and I was standing 15-20 feet from then-Gov. George Wallace fulfilling his campaign pledge to "stand in the schoolhouse door" to prevent blacks from attending the University of Alabama.

Federal troops enforced the law; Wallace backed down and left in his black limo. He rolled down the window and thrust a raised fist into the air. I did the same in response, saying "Get 'em, George."

I have since recognized the error of my ways regarding discrimination. I have also changed my "burn 'em till their eyeballs pop" mentality regarding murderers.

We don't have governors standing in the schoolhouse door, but we do have our justice officials standing in another door, that of the death house, holding it wide open for those same people once kept out of our schoolhouse doors. Yes, to get into the death house you have to be black, poor or both. Throw in a few Hispanics.

Checking the data, it leaves no doubt as to the bias, arbitrariness, discrimination and frank racism that exists in our death penalty process. Even if one accepts the death penalty is moral and good, which I reject, one must say no to the process by which it is implemented.

See any rich white folks on death row? Any colluding tobacco makers who addict your children and target them in their ads? Tobacco continues to kill hundreds of thousands. What about the drunken drivers who kill? Any of them on death row? Yes, there is a difference in how we "recruit" murderers to death row. It is a sad commentary.

The data show that the death penalty does nothing more than a sentence of life without the possibility of parole. It does not deter potential murderers any better; it does not protect society any better; and it does not bring timely closure to the family of the victims.

One thing it does do: It cost Alabama taxpayers millions of dollars more, all to execute an average of 1.2 inmates per year since the death penalty was reinstated in 1976. In fact, less than one of every 100 murderers in the United States is ever executed.

And:

Taking away the death penalty does not ask that anyone forget the egregious crime of taking human life, just that they take their hands from around the killer's throat. Bottom line is there is "something better." "Something better" is a phrase that moralists and philosophers have given a name. It is called the "universal moral."

Life without the possibility of parole is "something better" in all respects than the penalty of death. Continuing to kill in the name of the state is not only shameful and immoral, it is a sin.

Clinton Unplugged

That's the title of a Jay Brummett's recent column from the Arkansas News Bureau.

We already knew it, well before he told us so Friday evening at his presidential library during an otherwise jovial and comedic reunion conversation by three former Democratic governors.

Bill Clinton always agonized about letting executions happen.

After a long court-ordered hiatus, the imposition of the death penalty returned to the state late in Clinton’s long governorship, in June 1990.

It turned out that the inmate to be killed, murderer John Edward Swindler, had been befriended by Clinton’s own good friend, Freddie Nixon, who was doing a prison ministry.

Nixon had worked on Clinton’s first gubernatorial staff. She was, and is, married to the Methodist minister, Vic Nixon, who had performed Bill and Hillary’s wedding.

In what I always thought was the most extraordinary anecdote of Clinton’s governorship, Freddie Nixon told me that Clinton had called her the night of Swindler’s execution. She said he told her he wished there were more people like her so that he wouldn’t have to do what he was having to do.

I thought he’d meant this: If only there were more death penalty opponents like you, Freddie, then I wouldn’t have to let a man die for political reasons. But she, who heard what he said and knew him better and has an infinitely better heart than I, said that wasn’t it at all. She said Clinton was referring to people who would never commit acts that warranted capital punishment.

I’ll never forget what a friend of mine said to me when he read that quote: When you have the power to stop a man’s killing, and don’t, you deserve no morality or compassion points for saying that you agonized about it.

But that’s precisely what Clinton said Friday night as he sat on a stage before 300 people and between two of his dear friends and predecessor Democratic governors, Dale Bumpers and David Pryor.

Bumpers and Pryor were mostly funny and endearing. Clinton was the one willing to use the occasion for sober and candid reflection.

The question to the three was to recall their most difficult decisions as governor. Bumpers and Pryor invoked relatively obscure vetoes. Clinton cited the death penalty and, in a tacit acknowledging of the indecisiveness I and others always accused him of, the difficulty of deciding sometimes whether the greater right is keeping a promise or breaking that promise if keeping the promise is wrong.

On the death penalty, he said he wondered if he could possibly let it go forward today “with all this DNA evidence,” so much of which has demonstrated the innocence of men assigned to Death Row.

There sat Mike Beebe down front. You wondered what he was thinking. Was his old pal Bill implicitly telling him not to allow executions anymore?

Clinton did not discuss — and it was just as well — his returning from the presidential campaign to sit at the Governor’s Mansion the night the state would take the life of a man named Rickey Ray Rector. The poor guy had such brain damage — from having part of his brain shot away — that he saved the dessert from his last meal to eat later.

As ever with Clinton, this lends itself to widely divergent interpretation. Was it ghoulish of a Southern Democratic governor, needing to prove to the nation his “new Democrat” bona fides, to make a show of returning for this killing? Or did Clinton come home that night out of a sense of duty to face his responsibility, as he had in all other cases?

And:

Having been burned politically by pardons and commutations from his ill-fated first gubernatorial term, he vowed to grant none if allowed back in office. Then, he said, he found himself torn between the virtue of keeping that promise and the wrong he sensed from denying some of the requests.

So there you sat in the audience, asking yourself yet one more futile time whether this was an instinctively good man or a consummate political being, and whether this person or any person could possibly be both.

The Moratorium Remains in Illinois

"Quinn won't end death penalty moratorium," is Eric Naing's report in the Peoria Journal Star.

Gov. Pat Quinn says he "is not willing" to lift the moratorium on the death penalty in Illinois right now.

The governor, who just wrapped up an interview with the State Journal-Register editorial board, said he still has questions about the death penalty and believes the moratorium provides the state with the opportunity to study and reflect on the issue. Quinn also said he believes the public supports keeping the moratorium, as opposed to an outright ban on the death penalty.

"I actually think the public favors the moratorium approach right now," he said, adding that he would not want to ban the death penalty "until we make absolutely sure the system has zero-tolerance for mistakes."

Republican George Ryan instituted the moratorium when he was governor, and his successor, Democrat Rod Blagojevich, kept it in place. While judges and juries may impose the death penalty, no executions have occurred in Illinois for years.

The moratorium index is here.

Rick Casey on Judge Sharon Keller's Right to Counsel

His latest Houston Chronicle column is, "Let's give Judge Keller a free lawyer."  Here's an extended excerpt:

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, says the State of Texas is violating her constitutional rights.

We are not paying for an attorney to defend her against charges by the state Commission on Judicial Conduct. The Commission’s charges involve a controversy in which she allegedly rebuffed attempts by lawyers for a condemned man to file a last-minute appeal based on a U.S. Supreme Court decision earlier on the day of his execution.

Keller faces the equivalent of a trial that could result in her removal from the bench.

In a response filed Tuesday, Keller says the charges “are unconstitutional because (Keller) has been denied the right to counsel by the Texas and United States Constitution.”

The response, prepared by her attorney Charles L. Babcock, cites neither the provisions in the constitutions nor in case law supporting such an interpretation, but this taxpayer would be willing to provide an attorney for her.

After all, we provide attorneys for accused criminals.

True, we don’t hire lawyers for accused criminals who make $152,500 a year, as Judge Keller does.

And we provide lawyers only for indigents in danger of losing their freedom or their lives, not simply their jobs like Judge Keller.

And we don’t allow indigent defendants to choose their own free lawyers, particularly the highly regarded likes of Mr. Babcock.

Keller wants the taxpayers to pick up the “usual and customary fees” of Babcock’s firm, despite the fact that, according to the filing prepared by Babcock, hiring him is to “risk a financially ruinous legal bill to defend against these charges which are without merit.”

The judge should know better, especially in these tough times, than to ask us taxpayers to agree to a lawyer whose usual and customary fees can lead to a ruinous legal bill. However, I personally would be willing to chip in for the kind of lawyers whom Keller has found acceptable for people whose lives were at stake. Lawyers like:

Robert McGlohon, who was appointed by Keller’s court to represent a death row inmate shortly after the Texas Legislature in 1995 passed a law requiring for the first time that indigent condemned men and women be provided tax-paid attorneys for the automatic habeas corpus appeal.

McGlohon had been a lawyer less than three years, had never even assisted on a death penalty case, and was suffering serious health problems. The appeal he filed was so inadequate that it didn’t raise any issues that are required in habeas filings. McGlohon, apparently aware of his failings, didn’t even file a bill on the case.

When later lawyers filed a competent habeas appeal, Keller joined in the majority in ruling it improper because a defendant got only one shot at the target.

In a dissent, then-Judge Morris Overstreet called the decision “a farce and travesty,” and a federal judge called it “a cynical and reprehensible attempt to expedite petitioner’s execution at the expense of all semblance of fairness and integrity.”

AFP has the news article, "Judge denies closing court to condemned man."

The chief justice of a Texas appeals court has denied any responsibility in the 2007 execution of a convict who could not file his last appeal when she refused to keep the court open past 5:00 pm.

Sharon Keller issued a motion obtained by AFP, responding to charges against her in February by the state commission on judicial conduct.

"By the time he was executed, (Michael) Richard had two trials, two direct appeals (including the United States Supreme Court), two state habeas corpus proceedings and three federal habeas corpus hearings and motions," she said in her motion.

The case raised eyebrows for what death penalty foes saw as a startling lack of flexibility on a matter of life or death.

On September 25, 2007 the US Supreme Court decided to take up the question of the legality of lethal injections. That decision launched lawyers for Michael Richard, who was supposed to be executed at 6 pm by lethal injection, on a race against the clock to draw up an appeal and submit it before the court of criminal appeals closed at 5 pm.

With ten minutes to go before closing time, the lawyers called the court to ask for another 20 minutes but were refused. Richard then became the last man executed before the start of a seven-month moratorium.

Neal Manne, an attorney for the Texas Defender Service, stressed that "nothing in today's response changes the fact that Judge Keller knowingly broke the rules.

"The State Commission on Judicial Conduct is a conservative body, 11 of whose 13 members were appointed by the Republican Governor and the all-Republican Texas Supreme Court," he said.

"It concluded that Judge Keller violated court rules, cast discredit on the judiciary and undermined confidence in the criminal justice system."

Earlier coverage begins here.

Slow-Death Capital Punishment Affirmed

That's the title of Atlanta Journal-Constitution columnist Jim Wooten's blog post.  It refers to legislation that will allow Georgia prosecutors to seek a life without paroles sentence in capital cases.  Current Georgia law allows that sentence in capital case only if a death sentence is sought.  LINK

Georgia effectively ended capital punishment Wednesday — the capital punishment by lethal injection, anyway — in approving an easier route to life without parole.  The House vote was 164-0. The bill had already passed the Senate so it goes now to Gov. Sonny Perdue for his signature.

This means, of course, that Georgia will pass from one generation to the next an aging population of murderers too evil to live free as wards of the state until the end of their natural lives.  The public wants them dead, but lacks the stomach, and therefore the will, to return death penalty verdicts.   Too, some prospective jurors flat-out opposed to capital punishment lie their way onto juries where they deadlock the panel, no matter the evidence  The case that effectively ended the minutes-long form of capital punishment in Georgia was that of Brian Nichols, the mass murderer who killed an Atlanta judge and three others.

Under existing law, a District Attorney had to seek the death penalty before a murderer could be given the sentence of life without parole. That’s expensive and it requires competent, well-prepared prosecutors and honest jurors.  The bill passed Wednesday allows DAs to ask for life without parole without having first to seek the death penalty.  DAs and capital punishment opponents both supported it.

Earlier coverage of the Georgia legislation begins with this post.

Repealing Death Penalty Right Choice

That's the title of an editorial in today's Portsmouth Herald in New Hampshire.  LINK

This has been a busy week in the New Hampshire Legislature with votes taking place on a number of controversial pieces of legislation.

Here's our view on some of those bills and votes:

Thumbs up to the House voting to repeal the death penalty.

While the future of the bill is uncertain in the Senate, and Gov. John Lynch has said he will veto the bill if it reaches his desk, the House, by a 193-174 vote, made the right decision.

Capital punishment in this country and in New Hampshire should be a thing of the past — for many reasons.

The bill was pushed by Hampton Democrat Renny Cushing, whose father was shot to death in 1988.

"No matter how many times you kill, that doesn't bring anybody back," he said. Cushing asked the House to repeal the law "in the name of my father."

We hope the Senate agrees and Lynch changes his point of view.

You can watch the New Hampshire debate at this LINK.  Thanks to Renny Cushing for sending it.  He adds:

The death penalty debate is on the 3/25/2009 Morning Session for both video
and audio.

The debate begins approximately two hours into the tape and lasts an hour.
For those interested in seeing/listening to my speech supporting repeal of
the death penalty from the perspective of a family member of a murder victim,
it begins approximately 2 hours and 14 minutes into the tape.

Renny is the founding executive director of Murder Victims' Families for Human Rights.

Convicting the Innocent: Texas Justice Derailed

That's the title of the Justice Project's latest report, and it focuses on Texas wrongful convictions.  You can read the report here; or download a copy in Adobe .pdf format.  This is from the introduction:

Since 1994, Texas has exonerated thirty-nine innocent people who served over 500 years in prison for crimes they did not commit. This report contains brief overviews of these thirty-nine cases, all of which have been exposed by DNA evidence, and analyzes the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can increase the fairness, accuracy, and reliability of its criminal justice system.

Because DNA evidence is only available in a fraction of cases, the wrongful convictions described in this report are only the beginning. There are many other wrongful convictions that have been cleared without the benefit of DNA. While non-DNA exonerations are more difficult to prove, they are similar to DNA cases in that they trace back to the same flawed procedures in need of reform. As such, these thirty-nine DNA cases expose a criminal justice system that is wrought with problems that lead to wrongful convictions.

Although several of the exoneration cases involve instances of intentional misconduct, inadvertent error is by far more common. It would only compound these injustices, however, to assume that these mistakes were inevitable. Texas cannot ignore its broken criminal justice system. This report addresses the common causes that lead to wrongful convictions, as echoed in each of these cases, and presents practical reforms to prevent such errors. It is critical for Texas to take action. When Texas gets it wrong and convicts an innocent person, the true perpetrator remains free to commit more crimes.

This is from TJP's news release announcing the report:

A new report released today by The Justice Project analyzes the cases of thirty-nine innocent Texans who collectively spent more than five hundred years in prison for crimes they did not commit. Convicting the Innocent:

Texas Justice Derailed also presents reforms.

Texas must implement in order to improve the quality of evidence used in criminal cases and reduce the risk of wrongful convictions.

The report finds that while DNA analysis is an invaluable tool, it alone cannot prevent the wrongful convictions that arise from unreliable evidence. The report also analyzes the many costs to society each time a wrongful conviction occurs, including the crimes committed by the actual perpetrators following the conviction of the wrong person.

Among the report's key findings:

• Innocent Texans exonerated by DNA spent about 548 years in prison for crimes they did not commit.

• Eyewitness misidentification is the leading cause of wrongful convictions exposed by DNA in Texas, present in eight-five percent of wrongful conviction cases.

• Other factors leading to Texas wrongful convictions include: false confessions and guilty pleas, suppression of exculpatory evidence, false testimony from informants or accomplices with incentives to lie, false forensic testimony, and unreliable or limited forensic methodologies.

And:

"It is essential to learn from these mistakes when they are discovered," said

Edwin Colfax, director of state reform campaigns at The Justice Project, "so that we can address systemic flaws and ensure the most reliable evidence possible in our courts."

The report details how the devastation these cases have wrought begins with the wrongly convicted, but extends out to the family members, jurors and victims who become embroiled in a terrible injustice. According to the report, "In each of these innocence cases, a criminal investigation into a serious, violent crime was shut down prematurely when authorities prosecuted the wrong person."

Legislation is pending in the Texas Legislature that would reform eyewitness identification procedures, require electronic recording of custodial interrogations, and increase safeguards against unreliable informant testimony, among other reforms.

"Study: Witness errors lead juries astray," is Roma Khanna's report in today's Houston Chronicle.

Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

“Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

“But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.

In many of these cases, not only was eyewitness testimony wrong, but DNA evidence was faulty or absent altogether. Three of the Houston cases contained flawed forensics from the HPD crime lab.

Houston Police Chief Harold Hurtt has said he plans to issue written instructions on lineup procedures, but for now, HPD has none.

“Officers are taught standard operating procedures in the academy and from there (procedures) are managed and done by various divisions within the department,” said Craig Ferrell, HPD general counsel. “But we do not have a written general order.”

TJP's President, John Terzano, posted, "New Report Analyzes Texas Wrongful Convictions Exposed by DNA," at TPM

It is difficult to fathom that thirty-nine innocent Texans have spent more than five hundred years in prison for crimes they did not commit.  This alarming figure is detailed in a new report issued this week by The Justice Project: Convicting the Innocent: Texas Justice Derailed.

Unfortunately, five hundred years does not reflect the actual amount of time all innocent people have spent wrongfully imprisoned in Texas because the report only focuses on individuals who were exonerated by DNA evidence, which is available in only a fraction of cases. Each DNA exoneration exposes flaws in our criminal justice system that lead to unreliable evidence and inaccurate verdicts in our courts. It is time Texas and the rest of the country confront these flaws and learn from these costly mistakes.

Maryland House Approves Death Penalty Limits

More on SB 279, including different versions of the bill, is from the Maryland General Assembly.  I'm not certain that the final version is up, yet, but it will be posted at the link, soon. 

"Md. House OKs death penalty reform," is Julie Bykowicz's report in today's Baltimore Sun.

The House of Delegates approved new restrictions on the death penalty in Maryland on Thursday, sending the much-debated plan to the state's anti-capital punishment governor, who has said he will sign it into law.

Amid a national debate over executions, Maryland's evidentiary limitations will become the most stringent of any of the 35 states that have capital punishment on the books, legal experts say. Gov. Martin O'Malley, a Democrat, had sought to make Maryland the latest state to abolish the death penalty, as New Mexico did this year. But the closely divided Senate chose instead to restrict the kinds of evidence needed for capital cases, and the House followed suit.

O'Malley said in a statement that he will sign the legislation "in the coming weeks."

"While it is not the full repeal that we had hoped for, I want to thank the Maryland House of Delegates for voting to strengthen Maryland's death penalty law," O'Malley said.

Prosecutors will now be able to seek the death penalty only when they have DNA or biological evidence, a videotape of the crime or a video-recorded confession by the killer. Some death penalty supporters, including Maryland Attorney General Douglas F. Gansler, have said the new plan will "nullify" capital punishment because it is so restrictive.

Some senators are planning a separate bill this year that would add fingerprints to the list of evidence acceptable in capital cases, but death penalty opponents are urging lawmakers to reject that proposal, pointing to recent studies concluding that prints are unreliable.

Delegates originally appeared poised to approve a full repeal, but relented at the governor's urging because not enough senators supported it. But the 47-member Senate did overwhelmingly support death penalty reform.

The Washington Post has, "Md. Lawmakers Approve Tighter Death Penalty Rules," by John Wagner.

The Maryland House of Delegates voted 87 to 52 today to approve some of the nation's tightest restrictions on death penalty cases, sending a bill to Gov. Martin O'Malley (D), who has indicated he will sign it.

The measure will limit capital cases to those with biological or DNA evidence, a videotaped confession or a videotape linking the defendant to a homicide. Those are among the steepest hurdles faced by prosecutors in the 35 states that have a death penalty.

O'Malley has said he considers the bill "a step forward," although it falls short of the repeal bill that he sponsored this year, and pledged to do everything in his power to pass.

Del. Samuel I. Rosenberg (D-Baltimore) told his colleagues that the bill would significantly reduce the possibility of wrongly executing people.

Opponents of the bill said the measure would do much more than that.

"You have cleverly and successfully killed the death penalty in Maryland," said Del. Patrick L. McDonough (R-Baltimore County), who argued that the bill's restrictions are so strict that prosecutors will not be able to bring capital cases.

Maryland's action comes as several states are rethinking the death penalty. This month, New Mexico became the third state in recent years to abandon capital punishment.

Tightening evidence standards is a different approach, but "it's definitely going to cut death-eligible cases," said Richard Dieter, executive director of the Death Penalty Information Center in Washington. "There aren't any other states that have this list of three things, or anything close to it."

Steve Lash writes, "Death penalty measure passes, 87-52," for today's Daily Record.

During floor debate Wednesday and Thursday, Rosenberg, D-Baltimore City, repeatedly and successfully urged fellow death penalty opponents to defeat a number of proposed amendments.

House Minority Leader Del. Anthony J. O’Donnell, R-Calvert and St. Mary’s, voiced frustration at the amendments’ rejection, saying that death penalty supporters were unwilling to back reasonable changes to the bill lest they upset O’Malley.

“It’s clear there was a dictate from the governor” to leave the bill unchanged, O’Donnell said. “It’s clear the fix is in.”

Throughout the debate on SB 279, the measure’s opponents mocked its “compromise” label and said its evidentiary burdens essentially make it impossible for the death penalty ever to be imposed.

 

And:

Lawyers and legislators are divided on whether the legislation would apply to the five men already on death row: John Booth, Heath Burch, Vernon Evans, Anthony Grandison and Jody Miles.

While some have argued that the measure will apply to those men, Del. Joseph F. Vallario Jr., D-Calvert and Prince George’s, who chairs the House Judiciary Committee, said he believes the law applies prospectively only.

He added that, in any event, O’Malley would have the gubernatorial authority to remove the men from death row.

Wesley Baker, who was put to death on Dec. 5, 2005, was the last man executed in Maryland.

Maryland has had a de facto death penalty moratorium since December 2006, when the Court of Appeals invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedure Act. The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements — a process the O’Malley administration has initiated — or the legislature amends the APA to exempt execution protocols.

Entering the 2009 General Assembly session, death penalty opponents had expressed hope that this would be the year capital punishment would be abolished in Maryland.

The Capital of Annapolis carries the AP report by Brian Witte, Lawmakers approve death penalty bill."

Jane Henderson, executive director of Maryland Citizens Against State Executions, said the legislation will give Maryland "the highest standard of evidence required to seek death of any state," but she said it does not eliminate problems with the death penalty.

"The legislation passed today does not address racial and judicial disparities in how the death penalty is applied, the excessive cost required to bring death penalty cases, and the heavy toll capital punishment cases take on the families of murder victims," Henderson said in a statement.

Opponents said the measure will make it very difficult for prosecutors to bring capital cases, because of the far-reaching legal ramifications of the bill.

"It doesn't provide flexibility, and I believe it will be almost virtually impossible to bring a death penalty case with these new restrictions," said Delegate William Frank, R-Baltimore County, who was a member of a state commission that studied the death penalty.

Delegate Richard Impallaria, R-Baltimore County, was more blunt: "The death penalty is gone," he said.

Attorney General Douglas Gansler, a Democrat and death penalty supporter, has expressed misgivings about the bill. He has said the Senate amendments were "hastily crafted and would effectively nullify the death penalty in Maryland."

The House rejected all proposed amendments to the bill, mostly out of concern that amendments could jeopardize progress in death penalty reforms. Senate President Thomas V. Mike Miller, a Democrat and death penalty supporter, indicated he would not be willing to accept many changes to the compromise measure that his heavily divided chamber reached, citing time constraints before the General Assembly adjourns next month. However, Miller has said he would support a separate bill to enable prosecutors to bring a capital case with fingerprint evidence.

"House passes death penalty restrictions," by Meg Tully is in the Frederick News-Post.

The bill reserves the death penalty for murder cases with biological evidence such as DNA, videotaped evidence of a murder or a videotaped confession.

It excludes fingerprint evidence. Five Frederick delegates voted for a failed amendment Wednesday that would have included fingerprint evidence.

Delegate Galen Clagett, a Frederick Democrat who voted against that amendment, said Thursday he should have voted for it. He had been preoccupied with the budget and was still deciding his position on the bill, he said.

He ultimately voted against the bill, and said that he thought the death penalty should be applied in the case of murdered correctional officers, since he once worked in a prison.

Earlier coverage of the Maryland legislation begins here.

Convicting the Innocent: Texas Justice Derailed

That's the title of the Justice Project's latest report, and it focuses on Texas wrongful convictions.  You can read the report here; or download a copy in Adobe .pdf format.  This is from the introduction:

Since 1994, Texas has exonerated thirty-nine innocent people who served over 500 years in prison for crimes they did not commit. This report contains brief overviews of these thirty-nine cases, all of which have been exposed by DNA evidence, and analyzes the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can increase the fairness, accuracy, and reliability of its criminal justice system.

Because DNA evidence is only available in a fraction of cases, the wrongful convictions described in this report are only the beginning. There are many other wrongful convictions that have been cleared without the benefit of DNA. While non-DNA exonerations are more difficult to prove, they are similar to DNA cases in that they trace back to the same flawed procedures in need of reform. As such, these thirty-nine DNA cases expose a criminal justice system that is wrought with problems that lead to wrongful convictions.

Although several of the exoneration cases involve instances of intentional misconduct, inadvertent error is by far more common. It would only compound these injustices, however, to assume that these mistakes were inevitable. Texas cannot ignore its broken criminal justice system. This report addresses the common causes that lead to wrongful convictions, as echoed in each of these cases, and presents practical reforms to prevent such errors. It is critical for Texas to take action. When Texas gets it wrong and convicts an innocent person, the true perpetrator remains free to commit more crimes.

This is from TJP's news release announcing the report:

A new report released today by The Justice Project analyzes the cases of thirty-nine innocent Texans who collectively spent more than five hundred years in prison for crimes they did not commit. Convicting the Innocent:

Texas

Justice Derailed also presents reforms

Texas

must implement in order to improve the quality of evidence used in criminal cases and reduce the risk of wrongful convictions.

The report finds that while DNA analysis is an invaluable tool, it alone cannot prevent the wrongful convictions that arise from unreliable evidence. The report also analyzes the many costs to society each time a wrongful conviction occurs, including the crimes committed by the actual perpetrators following the conviction of the wrong person.

Among the report's key findings:

• Innocent Texans exonerated by DNA spent about 548 years in prison for crimes they did not commit.

• Eyewitness misidentification is the leading cause of wrongful convictions exposed by DNA in

  Texas

  , present in eight-five percent of wrongful conviction cases.

• Other factors leading to

  Texas

  wrongful convictions include: false confessions and guilty pleas, suppression of exculpatory evidence, false testimony from informants or accomplices with incentives to lie, false forensic testimony, and unreliable or limited forensic methodologies.

And:

"It is essential to learn from these mistakes when they are discovered," said

Edwin Colfax

, director of state reform campaigns at The Justice Project, "so that we can address systemic flaws and ensure the most reliable evidence possible in our courts."

The report details how the devastation these cases have wrought begins with the wrongly convicted, but extends out to the family members, jurors and victims who become embroiled in a terrible injustice. According to the report, "In each of these innocence cases, a criminal investigation into a serious, violent crime was shut down prematurely when authorities prosecuted the wrong person."

Legislation is pending in the Texas Legislature that would reform eyewitness identification procedures, require electronic recording of custodial interrogations, and increase safeguards against unreliable informant testimony, among other reforms.

"Study: Witness errors lead juries astray," is Roma Khanna's report in today's Houston Chronicle.

Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

“Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

“But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.

In many of these cases, not only was eyewitness testimony wrong, but DNA evidence was faulty or absent altogether. Three of the Houston cases contained flawed forensics from the HPD crime lab.

Houston Police Chief Harold Hurtt has said he plans to issue written instructions on lineup procedures, but for now, HPD has none.

“Officers are taught standard operating procedures in the academy and from there (procedures) are managed and done by various divisions within the department,” said Craig Ferrell, HPD general counsel. “But we do not have a written general order.”

TJP's President, John Terzano, posted, "New Report Analyzes Texas Wrongful Convictions Exposed by DNA," at TPM

It is difficult to fathom that thirty-nine innocent Texans have spent more than five hundred years in prison for crimes they did not commit.  This alarming figure is detailed in a new report issued this week by The Justice Project: Convicting the Innocent: Texas Justice Derailed.

Unfortunately, five hundred years does not reflect the actual amount of time all innocent people have spent wrongfully imprisoned in Texas because the report only focuses on individuals who were exonerated by DNA evidence, which is available in only a fraction of cases. Each DNA exoneration exposes flaws in our criminal justice system that lead to unreliable evidence and inaccurate verdicts in our courts. It is time Texas and the rest of the country confront these flaws and learn from these costly mistakes.

A Note from Montana

The Montana House Judiciary Committee is expected to vote Monday on Senator Dave Wanzenried's Senate Bill 236 which was heard by the Committee yesterday. Observers are expecting a close vote.

Montana's legislature will adjourn April 21, according to this report in the Great Falls Tribune.

Earlier coverage of the legislation begins with this post from last night.

Georgia

"Vote clears path to life without parole," by Bill Rankin, Aaron Gould Sheinin is in today's Atlanta Journal-Constitution.

Georgia prosecutors will have more leeway to put killers behind bars until they die under legislation given final approval Wednesday by the state House.

The House voted 164-0 for the bill, which would allow DAs to seek a sentence of life in prison without parole without having to seek the death penalty to get it.

“The families of the victims need closure,” said Rep. Rich Golick (R-Smyrna), the chairman of the House Judiciary. “And, of course, the question they ask the prosecutor is: Is that individual ever going to get out?”

The bill helps prosecutors help those families, he said.

The Senate already approved SB 13 by a unanimous vote. The bill now goes to Gov. Sonny Perdue.

The legislation was the top priority of the state’s district attorneys and also supported by numerous criminal defense attorneys.

DAs say the legislation would allow them to put more murderers away forever. It also will spare DAs from having to mount costly death-penalty prosecutions when a life-without-parole sentence is what they would have settled for.

Under Georgia law, once a DA seeks the death penalty, the sentencing options are life in prison with parole, life without parole or death.

The Rome News-Tribune of Geoergia has, "House approves sentencing changes in life without parole bill, by John Bailey.

The House unanimously approved a measure Wednesday that would give prosecutors more leeway to seek sentences of life in prison without parole.

The bill, introduced by Sen. Preston Smith, R-Rome, would change current law, which requires prosecutors to seek the death penalty before they can seek life without parole for convicted murderers.

It will go to Gov. Sonny Perdue’s desk after the House and Senate hash out minor differences.

And:

The bill ran into a rough patch last week when it was suddenly pulled from the floor.

Angry Senate sponsors accused House leaders of trying to amend it to allow the death penalty without a unanimous jury verdict.

Critics say the process of seeking the death penalty is time-consuming, expensive and often unnecessary.

Similar bills have gone before the state legislature in the past but would get bogged down and eventually be tabled but Patterson said Smith championed the measure year after year.

Earlier coverage of the Georgia legislation is here.  More on SB 13 from the Georgia General Assembly is here.

Arkansas Lethal Injection Legislation

"Bill to keep executions from public study stalls," is Charlie Frago's report in today's Arkansas Democrat Gazette.

An attempt to amend state laws on executions stalled in a Senate committee Wednesday after members questioned the need for secrecy about what chemicals are used.

After a lengthy discussion, Rep. Bobby Pierce, D-Sheridan, delayed consideration of the bill so a compromise might be worked out between prison officials who want virtually the entire process to be exempt from the state's Freedom of Information Act and some members of the Senate Judiciary Committee who said they were concerned that too much would be concealed.

With perhaps two weeks left in the legislative session, Attorney General Dustin McDaniel's chief deputy, Justin Allen, promised to bring back House Bill 1706 before lawmakers depart the Capitol.

McDaniel and the Department of Correction are promoting this legislation.

"We are actively working on an amendment," Allen said.

The bill leaves the execution procedure up to the prison director and exempts all "policies and procedures for carrying out the sentence of death and any and all matters related" from the Administrative Procedure Act and the Freedom of Information Act.

The Administrative Procedure Act would subject execution procedures to scrutiny by the General Assembly and the public by requiring public announcements and input. The Freedom of Information Act ensures public access to some government documents and other activities.

And:

Allen said if the legislation doesn't become law, the issue will hinge on a pending case before the Arkansas Supreme Court involving Frank Williams Jr., a death-row inmate who contends that the state's execution procedures are illegal because they haven't been reviewed under the state's Administrative Procedure Act.

"If this doesn't become law this session, we'll have to see what the [state] Supreme Court does with the Williams case," Allen said after the hearing.

Williams was sentenced to death in 1992 for the shooting death of Lafayette County farmer Clyde Spence.

A related Williams argument, Allen said, is that the state's executions aren't legal because current law only stipulates that two drugs be used, which doesn't conform with the 2008 U.S. Supreme Court decision in the case of Baze v. Rees, which upheld the legality of Kentucky's three-drug lethal-injection protocol.

And:

The Williams execution, scheduled for September until a Pulaski County judge ruled in his favor, was the "whole subtext" for the bill, said Jeff Rosenzweig, a Little Rock lawyer who has represented several death-row inmates.

The measure's purpose was "to short-circuit a case in front of the Supreme Court right now," Rosenzweig told panel members.

In the hearing, Democratic Sens. Jim Luker of Wynne, David Johnson of Little Rock and Robert Thompson of Paragould expressed reservations that the chemicals' names, amounts and procedures wouldn't be available for public inspection.

Little Rock's KTHV-TV has, "Senator Temporarily Pulls Ark. Execution Bill," written by Robert Bell.

The bill does not debate the legality of lethal injection or the death penalty itself; but it does debate how much power the head of the department of corrections should have over the proceedings; and how much information should be made public about the execution.

Some at the senate judiciary committee said executing someone is one of the most important issues a state deals with.

House Bill 1706 is designed to clarify the existing procedures for lethal injection. It states the procedure must be carried out by injecting one or more chemicals. It allows the director of the department of corrections to determine which kind and the amount.

The state's current policy is to use a mix of three chemicals in executions; but the attorney general's office wants the law to say one or more can be used in case the director changes his mind someday on what to use.

The bill also calls for freedom of information exemptions for how the execution is carried out, what chemicals are used, and security details like where armed guards will be stationed during execution.

Some committee members took issue with not disclosing which chemicals are used; something the DOC does currently.

Senator Jim Luker from Wynne told the crowd, "This is a sacred thing to a lot of people; freedom of information, when you start exempting folks from it it raises all kinds of antennas; that's what's troubling me here."

Earlier coverage of the legislation is here.

In Today's Philadephia Inquirer

There is a slew of state legislative news today.  Let's begin with an editorial from today's paper, "Death Penalty: State must end it now."

Pennsylvania, with the nation's fourth-largest death row, has as much reason - if not more - to follow the moral and practical example set last week by New Mexico in repealing its death penalty.

As Gov. Corzine did in 2007, Bill Richardson of New Mexico on Wednesday became the second governor to decide he would no longer "tinker with the machinery of death" - as the late Supreme Court Justice Harry A. Blackmun eloquently described the flawed U.S. system of capital punishment.

There is no rush among the 35 remaining death-penalty states to join New Jersey and New Mexico, the only two to ban executions since they were reinstated in 1976. But it's a hopeful sign that at least seven other states are looking at a ban, including Maryland.

Richardson acted out of a sense of justice, but also a renewed awareness amid a tough economy of the enormous and wasteful financial burden of running a death row.

The fear that an innocent person might be executed was driven home for New Mexico by the exoneration of four death row inmates. Richardson called the risk of executing an innocent person "anathema to our very sensibilities as human beings."

Even though Gov. Rendell remains a death penalty proponent, Pennsylvania has seen two men sent to its death row and later exonerated - proof that the risk of a wrongful execution exists here.

And:

Not only are death penalty cases hugely expensive to bring to trial, but years of appeals can run up legal bills in the millions. A commission in New Jersey determined that the tab for each death sentence was an estimated $4.2 million. New Mexico officials predict their repeal will save "millions of dollars."

In the spirit that no crisis should be wasted, death penalty foes need to keep reminding taxpayers that it's cheaper to jail killers for life than send them to death row. That means scrapping Pennsylvania's death penalty not only would be the right thing to do, but also the smart-money move.

StandDown's editorial index is here; one recent Inquirer editorial is noted.

In the Texas Legislature

This morning the Death Penalty Subcommittee of the House Criminal Jurisprudence Committee hears two proposals from Rep. Senfronia Thompson.  HB 1148 and HJR 58 together would give the Texas governor authority to issue more than one reprieve in a death penalty case.  Currently, the governor is limited to handing out a single 30-day reprieve.  An additional reprieve can only be made with a positive recommendation of the Board of Pardons and Paroles. 

I'll be at the hearing, which begins at 8:00 am (CDT).  You can watch the hearing at this LINK.  Posts will resume later this morning.

Montana Update

"Gut-wrenching testimony from both sides in death penalty debate," is the Billings Gazette's report of today's House Judiciary Committee hearing.  It's written by Mike Dennison.

The debate whether to abolish Montana’s death penalty pitted prosecutor against prosecutor and crime victim against crime victim Wednesday, as a bill repealing the penalty had its first hearing in the House.

The bill, which has passed the Senate, drew support from high-profile figures like former state Supreme Court Chief Justice Karla Gray and Jim Bromgard, the Billings man who spent 15 years in prison for rape before he was exonerated by DNA evidence in 2002.

Bromgard said if the victim, a young girl, had been murdered, he might have been wrongly sentenced to death and exe-cuted before the hair samples used to convict him were found to be erroneous.

"Science is only as good as the human beings that present it," he said. "If we are honest and we accept that these things happen, there is no place for the death penalty in Montana."

Other supporters of Senate Bill 236 included the state’s former top prosecutor and friends and family of those horribly murdered, who said a death sentence is an ineffective punishment that doesn’t deter crime, hurts the victims more than the criminal, and brings shame to a society that claims to abhor violence.

Yet the House Judiciary Committee heard compelling testimony from the other side as well, with prosecutors, pastors and relatives of murder victims arguing the death penalty serves both to protect the innocent and bring criminals to justice.

And:

SB236, sponsored by Sen. Dave Wanzenried, D-Missoula, would abolish the death penalty in Montana and replace it with life in prison without parole. If the bill passes, the two men on Montana’s death row would be resentenced to life in prison.

The House Judiciary Committee took no immediate action on the bill. Supporters of SB236 said they expect the panel to vote on the measure on Monday.

Gray, Montana’s chief justice on the Supreme Court from 2001-2008, said she did her job as a justice and signed opin-ions upholding the death penalty, as it complied with the law.

Yet she reminded the panel that it’s not the "state" that actually carries out the death penalty, but rather actual people, from justices to jurors to prison officers. A death certificate for an executed prisoner lists "homicide" as the cause of death, she said.

"Did (we) purposely or knowingly cause the death of another human being?" Gray said. "We did and we have to live with it. Please get Montana out of the state-sanctioned homicide business."

Earlier coverage of the Montana legislation begins here.

Hellhole

That's the title of a lengthy examination of the effects of solitary confinement in the March 30 issue of the New Yorker.  It's subtitled, "The United States holds tens of thousand of inmates in long-term solitary confinement. Is this torture?."  It's written by Atul Guwande, a surgeon and a professor at Harvard.  Here are several brief excerpts of this must-read:

Human beings are social creatures. We are social not just in the trivial sense that we like company, and not just in the obvious sense that we each depend on others. We are social in a more elemental way: simply to exist as a normal human being requires interaction with other people.

Children provide the clearest demonstration of this fact, although it was slow to be accepted. Well into the nineteen-fifties, psychologists were encouraging parents to give children less attention and affection, in order to encourage independence. Then Harry Harlow, a professor of psychology at the University of Wisconsin at Madison, produced a series of influential studies involving baby rhesus monkeys.

He happened upon the findings in the mid-fifties, when he decided to save money for his primate-research laboratory by breeding his own lab monkeys instead of importing them from India. Because he didn’t know how to raise infant monkeys, he cared for them the way hospitals of the era cared for human infants—in nurseries, with plenty of food, warm blankets, some toys, and in isolation from other infants to prevent the spread of infection. The monkeys grew up sturdy, disease-free, and larger than those from the wild. Yet they were also profoundly disturbed, given to staring blankly and rocking in place for long periods, circling their cages repetitively, and mutilating themselves.

And:

“It’s an awful thing, solitary,” John McCain wrote of his five and a half years as a prisoner of war in Vietnam—more than two years of it spent in isolation in a fifteen-by-fifteen-foot cell, unable to communicate with other P.O.W.s except by tap code, secreted notes, or by speaking into an enamel cup pressed against the wall. “It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” And this comes from a man who was beaten regularly; denied adequate medical treatment for two broken arms, a broken leg, and chronic dysentery; and tortured to the point of having an arm broken again. A U.S. military study of almost a hundred and fifty naval aviators returned from imprisonment in Vietnam, many of whom were treated even worse than McCain, reported that they found social isolation to be as torturous and agonizing as any physical abuse they suffered.

And:

Craig Haney, a psychology professor at the University of California at Santa Cruz, received rare permission to study a hundred randomly selected inmates at California’s Pelican Bay supermax, and noted a number of phenomena. First, after months or years of complete isolation, many prisoners “begin to lose the ability to initiate behavior of any kind—to organize their own lives around activity and purpose,” he writes. “Chronic apathy, lethargy, depression, and despair often result. . . . In extreme cases, prisoners may literally stop behaving,” becoming essentially catatonic.

Second, almost ninety per cent of these prisoners had difficulties with “irrational anger,” compared with just three per cent of prisoners in the general population. Haney attributed this to the extreme restriction, the totality of control, and the extended absence of any opportunity for happiness or joy. Many prisoners in solitary become consumed with revenge fantasies.

And:

The main argument for using long-term isolation in prisons is that it provides discipline and prevents violence. When inmates refuse to follow the rules—when they escape, deal drugs, or attack other inmates and corrections officers—wardens must be able to punish and contain the misconduct. Presumably, less stringent measures haven’t worked, or the behavior would not have occurred. And it’s legitimate to incapacitate violent aggressors for the safety of others. So, advocates say, isolation is a necessary evil, and those who don’t recognize this are dangerously naïve.

The argument makes intuitive sense. If the worst of the worst are removed from the general prison population and put in isolation, you’d expect there to be markedly fewer inmate shankings and attacks on corrections officers. But the evidence doesn’t bear this out. Perhaps the most careful inquiry into whether supermax prisons decrease violence and disorder was a 2003 analysis examining the experience in three states—Arizona, Illinois, and Minnesota—following the opening of their supermax prisons. The study found that levels of inmate-on-inmate violence were unchanged, and that levels of inmate-on-staff violence changed unpredictably, rising in Arizona, falling in Illinois, and holding steady in Minnesota.

And:

In this country, in June of 2006, a bipartisan national task force, the Commission on Safety and Abuse in America’s Prisons, released its recommendations after a yearlong investigation. It called for ending long-term isolation of prisoners. Beyond about ten days, the report noted, practically no benefits can be found and the harm is clear—not just for inmates but for the public as well. Most prisoners in long-term isolation are returned to society, after all. And evidence from a number of studies has shown that supermax conditions—in which prisoners have virtually no social interactions and are given no programmatic support—make it highly likely that they will commit more crimes when they are released. Instead, the report said, we should follow the preventive approaches used in European countries.

The recommendations went nowhere, of course. Whatever the evidence in its favor, people simply did not believe in the treatment.

Maryland Legislation on Path to Governor

"Restrictions on death penalty move forward in House," is Julie Bykowicz' report for the Baltimore Sun.

The House of Delegates on Wednesday rejected a Republican-led effort to alter proposed restrictions on capital punishment in Maryland and have advanced a plan that death penalty opponents say will help guard against the possibility of executing an innocent person.

Several delegates rose in objection to what they said was an effort by Gov. Martin O'Malley, a Democrat who opposes the death penalty, to silence their chamber. O'Malley asked a House committee earlier this month to pass restrictions adopted earlier by the Senate without amending them. Senate President Thomas V. Mike Miller, a Democrat and death penalty supporter, said his chamber would not debate capital punishment again this session.

"This flies in the face of the bicameral process," said Del. Anthony J. O'Donnell, the minority leader from Southern Maryland. "If the governor is going to decide the laws of the state ... we could just stay home and he could dictate to us."

Doubtful delegates groaned when Del. Samuel I. Rosenberg, a Baltimore Democrat who worked with O'Malley on death penalty reform, tried to assure his colleagues that "there is no diktat from the second floor," where the governor has his office.

John Wagner writes, "Md. House Set to Send Death Penalty Bill to Governor," for the Washington Post.

The Maryland House of Delegates is poised to send a bill to Gov. Martin O'Malley that would tighten evidence standards in death penalty cases after rejecting a half-dozen Republican amendments this morning that sought to broaden the legislation.

A final vote could come as early as tomorrow on the bill, which would require biological or DNA evidence, a videotape linking the defendant to a murder or a videotaped confession to proceed with capital cases. O'Malley (D), who unsuccessfully sought to repeal the death penalty this session, has indicated he will sign the bill.

Republicans today sought to add several categories of evidence that could make a case eligible for the death penalty, including fingerprints, and audiotaped and photographic evidence. Another failed amendment would have allowed capital punishment for contract killings, even if the new evidence standards are not met.

Supporters of the bill, which previously passed the Senate, urged their House colleagues not to accept any changes. Amendments would send the bill back to the Senate, and Senate President Thomas V. Mike Miller Jr. (D-Calvert) has indicated his chamber is done debating the death penalty this year.

"This bill as it now sits is a significant improvement," said Del. Samuel I. Rosenberg (D-Baltimore), a death penalty opponent who argued the new restrictions would make it less likely that the state would put an innocent person to death.

Earlier coverage from Maryland is here.

NH Legislators Endorse Repealing Death Penalty

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

Three months after a man was sentenced to die for killing a police officer — New Hampshire's first death sentence in 50 years — the House voted Wednesday to repeal capital punishment.

The chamber voted 193-174 to send the repeal bill to the Senate, where its fate is uncertain. Gov. John Lynch, a Democrat, said he would veto the bill if it reached his desk.

"There are some crimes so heinous that I believe capital punishment is warranted," Lynch said after the vote.

Michael Addison was sentenced to death in December for killing Manchester police Officer Michael Briggs in 2006. No execution date has been scheduled because Addison is appealing the sentence.

Law enforcers have lined up against the repeal, led by Attorney General Kelly Ayotte, who prosecuted Addison. But the New Hampshire Association of Criminal Defense Lawyers says death penalty sentences are unfairly applied.

Hampton Democrat Renny Cushing, whose father was shot to death in 1988, led the fight to repeal the death penalty. After his father's murder, Cushing founded Murder Victims' Families for Reconciliation.

"No matter how many times you kill, that doesn't bring anybody back," he said. Cushing asked the House to repeal the law "in the name of my father."

But Wolfeboro Republican Stanley Stevens, who supports the death penalty, listed law enforcement officers killed in the line of duty over the years. The law is a covenant with them that their deaths would be avenged, he said.

"We ask them to stand between us and lawlessness," Stevens said.

A bill to repeal the law passed the House and Senate in 2000 but was vetoed by then-Gov. Jeanne Shaheen, now a U.S. senator. A similar bill failed last year by 12 votes in the House.

"NH House votes to kill death penalty," is Tom Fahey's report for the Manchester Union Leader.

The New Hampshire House has voted to repeal the state’s death penalty laws by a vote of 193-174.

House Bill 556 will now move to the Senate. The House earlier today passed HB 520, calling for an in-depth study of the state’s death penalty laws.

Both bills now move to the Senate.

Gov. John Lynch opposes the repeal and promised to veto it.

“I do believe there are some crimes so heinous that capital punishment is warranted, and if a bill to repeal capital punishment reaches my desk I will veto that bill,” he said minutes after the House action.

The Legislature passed a repeal of the death penalty in 2000, but Gov. Jeanne Shaheen vetoed that bill. An attempt to override her veto failed by 34 votes.

Death penalty opponents said that as long as the statute is on the books, the state runs the risk of executing an innocent person. The use of DNA evidence has increased the rate at which death row inmates are found innocent and released, they argued.

Those who urged that the state keeps its capital punishment laws on the books said the state applies in limited cases. They said it provides an added layer of protection for law enforcement who put their lives at risk.

State law reserves the death penalty for those aged 18 and older who kill police and corrections officers who acting in the line of duty, judges, victims of rape and kidnapping, during drug-related murders and murder-for-hire.

The state has not executed a killer since 1939.

Earlier coverage from New Hampshire begins here.

Judge Keller Files Response - UPDATED

Judge Keller's response can be viewed, in Adobe .pdf format, here.  The notice, or complaint,  from the  State Commission on Judicial Conduct is here.  Now for the news coverage.

At Texas Lawyer, Mary Alice Robbins writes, "Keller Alleges She Has Been Denied Right to Counsel."

But Keller, a CCA judge since 1994 and the court’s presiding judge since 2000, alleges in the March 24 answer she filed with the commission that Richard’s attorneys at the Texas Defender Service (TDS) did not need a computer to prepare and timely file a motion for stay after the U.S. Supreme Court granted a petition for a writ of certiorari in Baze v. Rees to determine whether the chemicals used in Kentucky’s lethal injection method of execution constituted cruel and unusual punishment — an issue Richard sought to raise with the CCA. Keller contends in the answer that Richard could have hand-written a motion for stay and the court would have accepted it, or he could have filed an application for a writ of habeas corpus in the trial court. [See Keller's answer.]

“They didn’t need a computer for this,” says Charles “Chip” Babcock, Keller’s attorney and a partner in Jackson Walker in Dallas.

Babcock says, “Judge Keller should not be in this position. I cannot imagine why the commission voted to have formal charges brought against her.”

Seana Willing, the judicial conduct commission’s executive director, did not immediately return a telephone call for comment.

The commission issued its Notice of Formal Proceedings against Keller on Feb. 19 in connection with the case of Richard, whom the state executed on Sept. 25, 2007. As alleged by the commission in its notice, Richard’s attorneys called the CCA clerk’s office at about 4:45 p.m. on Sept. 25, 2007, to report they were experiencing computer problems and to request that the office remain open a few minutes late to accept their filing but were told that the office would close at 5 p.m. Keller, who was away from the CCA that afternoon, refused to keep the office open, as alleged in the commission’s notice.

In its notice, the commission lists the following five charges with regard to Richard’s case.

• Keller’s failure to follow the CCA’s execution-day procedures constituted willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.

• Keller’s failure to follow the CCA’s execution-day procedures constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.

• Keller’s conduct did not accord Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.

• Keller’s conduct did not accord Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.

• Keller’s willful and persistent failure to follow the CCA’s execution-day procedures constitutes incompetence in the performance of duties of office.

"Texas Judge Denies Charges of Misconduct," is John Schwartz' report in today's New York Times.

The chief judge of the Texas Court of Criminal Appeals, who was accused of judicial misconduct and incompetence last month for refusing to keep court offices open to receive a last-minute death-penalty appeal, denied the charges in papers filed Tuesday.

The action against the judge, Sharon Keller, was initiated by the Texas Commission on Judicial Conduct. It could result in her removal from office after a hearing.

The charges focus on Judge Keller’s refusal to keep court offices open past 5 p.m. on Sept. 25, 2007, to receive an appeal in the case of Michael Richard, a convicted rapist and murderer.

Judge Keller, who was first elected to the court in 1994 and campaigned as being tough on crime, left her office that afternoon to meet a repairman at her home. Mr. Richard was put to death that evening by lethal injection.

In their eight-page filing, Judge Keller’s lawyers rejected all the charges and said her decision to close the court offices was “in accordance with longstanding custom.” Rules that could require the court to remain open were not in effect at the time, the filing said, adding that Mr. Richard’s lawyers could have taken their appeal directly to individual judges who were assigned to accept them.

"Keller denies charges she closed court to death row appeal," is Chuck Lindell's Austin American-Statesman report.  Lindell broke the story about Keller's actions in an October 2007 report noted in this post.

In her formal response to charges filed in February, Keller said blame more properly lies with inmate Michael Richard's lawyers, who she said failed to promptly draft their appeal and did not seek other available avenues to file the document with the Court of Criminal Appeals.

"Judge Keller did not, and could not have if she wanted to, close access to the court" under the state's appellate rules, her lawyer, Chip Babcock, stated in the brief filed on her behalf.

In February, the State Commission on Judicial Conduct charged Keller with violating her duty and bringing discredit upon the judiciary for refusing to allow Richard's lawyers to file an after-hours appeal shortly before his execution.

She will face a public hearing, which has yet to be scheduled, and could be removed from office, reprimanded or exonerated.

And:

The next step in Keller's case will come when the Texas Supreme Court appoints a state district judge or appellate judge to preside over her hearing.

After the hearing, which will resemble many civil court trials, the judge will issue findings to the State Commission on Judicial Conduct, which will vote to exonerate, rebuke or begin proceedings to remove Keller from office.

The Fort Worth Star-Telegram carries Jim Vertuno's AP dispatch, "Top Texas judge files response to misconduct charges over 2007 execution."

More than 20 people, including state Rep. Lon Burnam, D-Fort Worth, and a former appellate judge, filed complaints against Keller to the judicial commission, accusing her of violating Richard’s rights.

The criminal appeals court has since decided to allow emergency e-mails in death penalty cases rather than require attorneys to physically file the paperwork at the court.

If the complaints are upheld, Keller, a Republican on the court since 1994, could be reprimanded or even removed from the bench. She could also be cleared of the charges.

"Keller shifts blame for execution blunder," is R.G. Ratcliffe's Houston Chronicle report.

The Texas Defender Service said Keller is trying to deflect attention because she “knowingly broke the rules” and caused Richard’s execution when he likely could have gotten a stay.

Neal Manne, counsel for the service, said the judicial conduct commission found that Keller knew she was not the assigned judge handling the Richard execution and that she should have referred the calls to that judge, Cheryl Johnson.

“The commission has properly focused on Judge Keller’s conduct, and has not in any way suggested that Texas Defender Service acted improperly or was at fault,” Manne said.

Earlier coverage begins with this post.

Montana House Hearing - UPDATED

UPDATE - The hearing webcast is now live.

The Montana House Judiciary Committee is scheduled to begin meeting at 8:00 am (MDT), today -- just a few minutes from now.  The only topic for today's hearing is Senator Dave Wanzenried 's Senate Bill 236.

You should be able to listen to the hearing at this LINK.

Earlier coverage of the Montana legislation begins with this powerful OpEd in support of repeal.

Lawyers’ Late Filings Can Be Deadly for Inmates

That's the title of Houston Chronicle reporter Lise Olsen's latest report on capital punishment in Texas.  LINK

Three men on Texas’ death row — and six others already executed — lost their federal appeals because attorneys failed to meet life-or-death deadlines, essentially waiving the last constitutionally required review before a death sentence is carried out.

Johnny Johnson, executed in February for a Houston murder, was the most recent: His lawyers missed a federally mandated filing deadline by 24 hours.

One of his attorneys made the same mistake in the case of death row inmate Keith Steven Thurmond, a former Montgomery County mechanic now on death row awaiting execution, according to case records.

In both cases, the lawyer waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for his tardiness, according to a 5th Circuit Court of Appeals opinion issued last week. The court chastised the attorney for using the same excuse twice.

The opinion pointed out that based on the problems in the previous capital case, the lawyer already knew the machine was broken and could have easily filed electronically by using his computer.

Most of the late filings came in death row cases overseen by federal judges in the Southern District of Texas. In an interview, U.S. District Judge Hayden Head, the Corpus Christi-based chief judge of the Southern District, said he was unaware of the problem and could not comment.

The Houston Chronicle reviewed records in nine appeals that were filed too late. In some cases, lawyers or judges appear to have miscalculated or misunderstood the dates of the deadlines, which generally fall one year after state appeals are concluded. In others, computer failures or human foibles are blamed, records show.

“Any decent judges would be deeply ashamed of the quality of legal representation in most capital cases in Texas,” said Stephen Bright, a leading specialist in capital case law and who directs the Southern Center for Human Rights in Atlanta. “The very least they could do about it would be to prohibit lawyers who miss the statute of limitations from taking another case and referring them to the Bar for disciplinary proceedings.”

And:

Jerome Godinich, the attorney in both Johnson and Thurmond’s cases, appears to be the only Texas attorney to have filed too late in more than one recent death row appeal, based on the nine cases reviewed. He also filed late in a third Texas death row case, records show.

In the third case, however, a Houston-based U.S. district judge took so long to appoint Godinich that the appellate deadline already had lapsed. Court records show Godinich requested more time but took 162 days to file the appeal. The judge then ruled that it, too, was too late to be considered, records show

Godinich did not respond to several telephone and e-mail requests for an interview. He has faced no fines or other public penalties from the Houston-based federal judges who both appointed and paid him to represent the three men.

And:

James Marcus, an expert in capital case law who teaches in the Capital Punishment Clinic at the University of Texas School of Law, said missing the deadline for a federal writ of habeas corpus — thereby waiving all federal review — is the equivalent of “sleeping through the trial.”

Federal courts, he noted, have overturned several recent Texas death cases for errors overlooked by state judges, including one involving allegations of discriminatory jury selection by Harris County prosecutors. Federal judges also awarded a new trial to another Montgomery County death row inmate this year based on new evidence presented about forensic errors in his case.

"Late court filings take away final appeals," is a UPI rewrite, via MarketWatch.

Lawyers' failure to file paperwork on time has taken away the final death penalty appeal for nine men in Texas, including six who were executed, records show.

The Houston Chronicle reported Sunday that in the most recent case the Texas Department of Criminal Justice executed Johnny Ray Johnson for the rape and murder of a Houston woman after Johnson's defense lawyers missed a federally mandated filing deadline by one day. One of his attorneys, Jerome Godinich, made the same mistake in the case of death row inmate Keith Steven Thurmond, the newspaper said.

Godinich, in both cases, waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for being late.

Death Sentences and Executions in 2008

That's the title of Amnesty International's latest report looking at capital punishment around the world.  The report is here.  It's available in other languages here.  This is from the news release:

Death Penalty: 2,390 executions in 2008 worldwide, 72 per cent in China

Amnesty International today revealed that more people were executed in Asia than in any other part of the world in 2008 because China carried out more executions than the rest of the world put together. By contrast, in Europe only one country continues to use the death penalty: Belarus.

"The death penalty is the ultimate cruel, inhuman and degrading punishment. Beheadings, electrocutions, hangings, lethal injections, shootings and stonings have no place in the 21st century," said Irene Khan, Secretary General of Amnesty International.

The report Death Sentences and Executions in 2008, which provides a world overview on the death penalty, found that between January and December 2008 at least 2,390 people were executed in 25 countries around the world with at least 8,864 sentenced to death in 52 states.

Amnesty International also reports on countries that handed down death sentences after unfair trials, like Afghanistan, Iran, Iraq, Nigeria, Saudi Arabia, Sudan and Yemen. The report addresses the discriminatory manner with which the death penalty was often applied in 2008, with a disproportionate number of sentences handed down to the poor, minorities and members of racial, ethnic and religious communities, in countries such as Iran, Sudan, Saudi Arabia and USA. And the risk of executing the innocent continues, as highlighted by the four inmates released from death row in the USA on grounds of innocence.

Many death row inmates languish in harsh detention conditions and face psychological hardship. For example, in Japan inmates are typically notified of their hanging only on the morning of their execution and their families are informed only after the execution has taken place.

“Capital punishment is not just an act but a legalized process of physical and psychological terror that culminates in people being killed by the state. It must be brought to an end,” said Irene Khan.

Most of the world is moving a step closer to the abolition of the death penalty, with only 25 out of the 59 countries that retain the death penalty reported to have actually executed in 2008. But Amnesty International warned that, in spite of this trend, death sentences continue to be handed out in their hundreds all over the world.

"Report Says Executions Doubled in 2008," is the New York Times' coverage by Mark McDonald and Michael Wines

The number of executions worldwide nearly doubled last year compared to 2007, according to Amnesty International, and China put to death far more people than any other nation.

Asian countries accounted for more executions than the rest of the world put together, the rights group said Tuesday in its annual report on the death penalty.

The group chronicled beheadings in Saudi Arabia; hangings in Japan, Iraq, Singapore and Sudan; lethal injections in China; an electrocution in the United States; firing squads in Afghanistan, Belarus and Vietnam; and stonings in Iran.

In all, 59 countries still have the death penalty on their books, but only 25 carried out executions last year. Two nations, Uzbekistan and Argentina, banned the death penalty last year. Amnesty said at least 2,390 people were executed worldwide in 2008, compared to its 2007 figure of at least 1,252.

With at least 1,718, China was responsible for 72 percent of all executions in 2008, the report stated. After China were Iran (346), Saudi Arabia (102), the United States (37) and Pakistan (36), according to the group.

“Together they carried out 93 percent of all executions worldwide,” the report said.

Chinese authorities also handed down at least 7,003 new death sentences last year, although the report said the true total of both executions and death sentences “remains shrouded in secrecy.” Some countries, China and North Korea among them, do not disclose the number of executions they carry out.

In China’s case, “real figures are undoubtedly higher,” the report stated.

Although admittedly incomplete, the figures from Amnesty International are widely accepted as authoritative. The United States State Department, for example, cited the group’s statistics and findings in its recent report on human rights.

AFP has, "Executions in US a regional phenomenon: Amnesty."

Amnesty International USA said in an annual report to be published Tuesday that capital punishment in the United States has become regional and fairly isolated event, with Texas accounting for roughly half of all executions.

"Only nine of the 36 states that retained the death penalty in 2008 actually carried out executions, and the vast majority of these executions took place in one region: the South," the US section of the London-based human rights group said in a statement.

"Texas accounted for, in essence, half (18 of 37) of the US executions in 2008," it added. And the southern state has carried out 12 of the 20 nationwide executions so far this year.

Other states including Virginia (east), Tennessee (south), Alabama (south), Ohio (north) and Oklahoma (south) also allow lethal injections -- the preffered method of execution, but in much smaller numbers.

New Mexico, also in the south, last week abolished capital punishment in its territory.

"Executions in the United States are increasingly a regionally isolated phenomenon," said Amnesty's Death Penalty Abolition Campaign director Sue Gunawardena-Vaughn.

"Elsewhere, concerns about cost, the possibility of executing the innocent and racial bias have led to a significant decline in support for capital punishment", she added.

"China Tops World Execution List at 72%, Amnesty Says," is Bloomberg's report by Ed Johnson and Dune Lawrence.

Amnesty welcomed the UN General Assembly’s call for a global moratorium on the death penalty and said it marked “three decades of steady progress” on the issue. Twenty-five of the 59 countries that retain the death penalty reported using it in 2008, Amnesty said.

Still, St. Kitts and Nevis became the first Caribbean state to execute someone since 2003 and Liberia introduced the death penalty for the crimes of robbery, terrorism and hijacking, according to the report.

Capital punishment is a “legalized process of physical and psychological terror that culminates in people being killed by the state,” said Khan. “It must be brought to an end.”

Nevada Moratorium Proposal Gets Hearing

Las Vegas' KLAS-TV has, "Lawmakers Propose Moratorium on Executions."

If approved, Assembly Bill 190 would ban all executions until July of 2011 while the legislature conducts a study on the cost of capital punishment.

And:

An Assembly committee will hold a hearing on the bill Tuesday afternoon. Prosecutor Christopher Owens will testify on behalf of the Clark County District Attorneys Office. Owens says he will argue such cost studies in other states have been unreliable, and that a moratorium on executions is not necessary in order to conduct a study.

Earlier coverage from Nevada is here.

The Tennessee Study Commission

Today's Tennessean has the editorial, "Clock ticks on state to fix flawed execution system."

Is this the year that Tennessee takes serious action to address its death-penalty system?

If not, it will only fall further behind in a positive trend toward a more just, equitable form of punishment for society's worst offenders.

Last week, New Mexico became the second state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. New Jersey prohibited capital punishment two years ago, and 13 other states do not impose the death penalty.

In Tennessee, executions resumed earlier this year after a hiatus following a judge's determination that the lethal-injection method constituted cruel and unusual punishment. The state is appealing that decision and executed Steve Henley on Feb. 4, using lethal injection.

But Tennessee's system has a range of problems that go beyond the method of death, and beyond the philosophical debate whether capital punishment should exist. Doubts are growing among supporters too over whether all our death-row inmates actually committed the crimes they are accused of or, at least, whether their cases were handled fairly.

Earlier this year, a special legislative committee concluded after 16 months of study that Tennessee's system must be reformed to ensure that people facing execution get fair trials.

They recommended laws be changed or added to require that defense lawyers in capital cases be highly qualified and that they have uniform access to evidence against their clients; that police officers record all interrogations related to homicide cases; and that the state set realistic timetables for capital cases so that families of murder victims and of the defendants are not torn by seemingly endless years of appeals.

A legislative package to bring about these changes has been introduced by state Sen. Doug Jackson, D-Dickson, and Rep. Kent Coleman, D-Murfreesboro. Jackson, a supporter of the death penalty, who acknowledges flaws in the system, said last week that he plans to advance the reform package, which is currently in Senate and House committees. But in a year in which the sharply partisan legislature is preoccupied with broadening gun rights and narrowing abortion rights, there is reason to doubt whether lawmakers will give death-penalty reform its due consideration.

The reforms the committee recommends are pragmatic and moderate, designed to eliminate the high number of errors that have occurred because attorneys did not understand the complexities of capital-case law, or because indigent defendants could not obtain better counsel.

The Tennessean also carries an OpEd by Verna Wyatt, "Panel was biased against execution."

The death penalty is an appropriate, legal sentence in Tennessee. However, there is constant continuing opposition to abolish capital punishment in Tennessee, and to throw up legal road barriers for delaying death sentences.

Some of the strategies to do this are obvious, while others are more subtle.

In 2007, the General Assembly created a commission to study Tennessee's death penalty system. This commission recently concluded and is now making recommendations to the legislature on issues involving prosecution of death penalty cases. Recommendations that on the surface seem legitimate since they have overwhelming support from commission members, but in my opinion are actually bogus.

As an advocate for victims in Tennessee, I was on that commission. I want the legislators and the general public to know a little about how this commission came into being, and the legislated composition of that commission, in order to put the recommendations they are now offering into perspective.

First, the legislation that established this commission "was crafted in cooperation with the ACLU of Tennessee, the Catholic Public Policy Commission, the Tennessee Justice Project and the National alliance on Mental Heath Illness." I'm quoting an article in the Tennessee Coalition to Abolish State Killings (TCASK) newsletter that also featured a nice picture of state Sen. Doug Jackson, who is the sponsor.

Earlier coverage from Tennessee begins here.

New Hampshire

Today's Portsmouth Herald editorial is, "N.H. needs death penalty study group."

The bill to set up a commission to objectively study the death penalty appears to have support based on its easy passage in the House Criminal Justice and Public Safety Committee.

The commission would study whether the death penalty "rationally serves a legitimate intent such as deterrence; is consistent with evolving standards of decency; is arbitrary, unfair or discriminatory in any way; whether there is a significant difference in the crimes of those selected for death as opposed to those who receive life in prison; whether there is a significant difference in the cost of prosecution of a first degree murder charge when the penalty is life without parole as compared with a death penalty conviction and execution."

Gov. Richardson found that nearly 75 percent of the messages he received on the subject supported repeal; New Hampshire poll results have been much more evenly divided.

While we would like to see the death penalty repealed, we support the bill to study it because we believe so strongly that, the more Granite Staters learn about the death penalty, the more they will oppose it.

Earlier coverage begins with this post.

Gov. Richardson Explains NM Repeal to Rachel Maddow

He was a guest on the MSNBC program last night.  You can view the video clip of his interview.  I'll update this post when a transcript becomes available.

Earlier coverage of New Mexico's repeal begins here.

Maryland House

"Death-penalty bill expected to pass this week," is Michael Drost's report in today's Washington Times.

Maryland lawmakers are expected to pass legislation this week to limit capital punishment, despite a chorus of dissatisfaction from House Democrats to Republicans to the top law enforcement officer in the state.

"It's an abomination; it's totally unworkable" said Delegate Susan McComas, Harford County Republican and a member of the House Judiciary Committee, describing the bill passed by the state Senate earlier this month.

Gov. Martin O'Malley, a Democrat and a Catholic, made an all-out effort this year for a full repeal of capital punishment in Maryland.

However, the Senate, which rejected previous repeal efforts, amended the bill so that only cases with DNA evidence, videotaped evidence or a videotaped confession were eligible for the death penalty.

Senate President Thomas V. Mike Miller Jr., a Southern Maryland Democrat who does not support a repeal, gave House lawmakers a take-it-or-leave it offer, saying his chamber would not accept amendments or a compromise bill.

The House is expected to begin debate on the bill Tuesday, with a likely decision to either pass or reject it by the end of the week.

And:

Mr. O'Malley said last week the bill "represented progress" over existing law.

"We wanted to go as far as we could with the repeal bill, and this is as far as we could go," he said.

Other repeal advocates have similar opinions.

Jane Henderson, executive director of Maryland Citizens Against State Executions, said the compromise was a "good reform," and that it will lessen the possibility of an innocent person being executed.

The use of DNA evidence has been a primary factor in motivating at least 15 states to ban the death penalty. At least 234 people, many convicted of murder, have been exonerated through DNA evidence nationwide since 1989.

Earlier coverage from Maryland begins here.

Supreme Court Rejects Review of David Lee Powell Case

"Supreme Court won't hear case against man convicted of killing Austin officer," that's the title of the report in today's Austin American-Statesman.

The U.S. Supreme Court on Monday refused to review the death sentence of a man who has twice been convicted of using an assault rifle to kill an Austin police officer during a traffic stop more than 30 years ago.

The decision moves David Lee Powell, 58, closer to being executed for the 1978 slaying of Ralph Ablanedo, who was hit by 10 bullets from an AK-47. According to testimony, Powell also tossed a hand grenade at officers. He was arrested after the shootout and has been sent to death row three times, most recently in 1999.

Powell's attorney, Richard Burr of Houston, said Monday that he was not surprised but was disappointed by the decision. He said he thinks that he has grounds for new legal proceedings in the case but declined to elaborate.

State and federal courts, however, rarely accept new legal theories at such a late stage in the appeals process.

Last summer, the 5th U.S. Circuit Court of Appeals, based in New Orleans, rejected Powell's latest appeal, which argued that his third trial should have been a full trial rather than only a new punishment trial. In that appeal, his lawyers said his rights to due process were violated because prosecutors did not disclose documents in a timely mannerthat showed Powell's girlfriend might have fired the fatal shots, tossed a hand grenade and fired at other officers.

And:

Powell's first conviction was vacated by the U.S. Supreme Court and returned to the Texas Court of Criminal Appeals. The state court reaffirmed the conviction and death sentence, and the U.S. Supreme Court vacated the sentence.

He was retried and again given the death penalty in 1991. Although the high court had reversed only the sentence, Texas law at the time required a full retrial. The second sentence, however, was reversed by the state Court of Criminal Appeals because of improper jury instructions.

Texas law had changed by then, and the third retrial was only for sentencing, which prompted the latest appeal.

Earlier coverage of the Powell case is here.

Senator Feingold Reintroduces Bill to Abolish Federal Death Penalty

His news release is here.

As momentum builds in states to abolish the death penalty, U.S. Senator Russ Feingold reintroduced legislation today to abolish the death penalty at the federal level.  Feingold’s Federal Death Penalty Abolition Act of 2009 would put an immediate halt to federal executions and forbid the use of the death penalty as a sentence for violations of federal law.  The use of the death penalty has been questioned by a range of prominent voices across the country, recently repealed in New Mexico and New Jersey, and abolished by 123 countries around the world.  Feingold’s bill would stop executions on the federal level, which are part of a death penalty system that has proven to be ineffective, wrought with racial disparities, and alarmingly costly.  

“I oppose the death penalty because it is inconsistent with basic American principles of justice, liberty and equality,” Feingold said.  “Governor Bill Richardson and the New Mexico legislature’s action to abolish the death penalty in that stateadds to the growing momentum behind ending the death penalty in this country.  It is truly unfortunate that we are in a shrinking minority of countries that continue to allow state-sponsored executions.”

Feingold is not alone in his opposition to the death penalty.  A range of prominent voices have questioned the system in recent years, including former FBI Director William Sessions, former Supreme Court Justice Sandra Day O'Connor, law enforcement officials and many others across the political spectrum.  In 2007, only China, Iran, Saudi Arabia and Pakistan executed more people than the United States. 

In 2007, Feingold chaired a Senate Judiciary Committee, Constitution Subcommittee hearing on oversight of the federal death penalty that highlighted the lack of transparency at the Department of Justice in the decision-making process about the death penalty and continuing problems of racial disparities in the federal system.  Also in 2007, the American Bar Association called for a nationwide moratorium on capital punishment based on its detailed study of state death penalty systems, which found racial disparities, convictions based on bad evidence, grossly inadequate indigent defense systems, and a host of other problems with the implementation of capital punishment in this country.

AFP reports, "US Senator: Ban death penalty."

Democratic US Senator Russell Feingold on Thursday introduced legislation to put an immediate halt to federal executions and abolish the death penalty for violations of federal law.

"It is truly unfortunate that we are in a shrinking minority of countries that continue to allow state-sponsored executions," he said, noting that capital punishment has been banned in 123 countries around the world.

In 2007, only China, Iran, Saudi Arabia and Pakistan executed more people than the United States, according to a statement from his office.

"I oppose the death penalty because it is inconsistent with basic American principles of justice, liberty and equality," said the Wisconsin senator, whose legislation would not affect individual states.

Feingold introduced the measure one day after New Mexico Governor Bill Richardson made his state the 15th in the nation to outlaw capital punishment when he signed a law abolishing the death penalty.

Today's University of Wisconsin at Madison's Daily Cardinal carries the OpEd, "Capital punishment deserves the ax to preserve rights of justice, liberty," by Jon Spike.

With the recent activity in the political sphere, it appears many politicians are dying to get capital punishment banned at the federal level in the United States. In light of New Mexico Gov. Bill Richardson’s decision to repeal capital punishment in New Mexico, Sen. Russ Feingold, D-Wis., is re-introducing legislation to eliminate the death penalty in the United States, a policy already in place in Wisconsin. In fact, Wisconsin has only executed one inmate in its 160-year history. New Mexico became the 15th state to outlaw capital punishment and the third state in the last two years to do so after New Jersey and New York.

However, it is easy to see why the bill’s timing could be considered horrible at best. America finds itself in a painful economic recession, and prisons are already seeking to scale back on inmate counts in any way possible. Wisconsin Gov. Jim Doyle included releasing inmates early in his proposed budget as a means to save $40,000 per inmate per year. Eliminating capital punishment would mean lifetime care for any and all inmates who commit the heinous crime of murder, creating a financial burden upon the state. However, fiscal reasoning should not be our guiding light on this issue, and in many cases the death-penalty systems are an even bigger financial burden than forcing lifetime sentences.

Capital punishment is an ideological dinosaur, a product of centuries-old belief in eye-for-an-eye, that every action requires equal retribution and punishment. Capital punishment is also a barbaric and narrow-minded approach from a justice standpoint, especially when you have a justice system as imperfect as ours. According to the Death Penalty Information Center, 130 inmates from 26 states have been cleared from death row by new information or evidence that cleared them of guilt since 1973.

And:

America prides itself on liberty, justice and equality, yet capital punishment jeopardizes all three. Repealing the death penalty would not legitimize the act of killing, but rather acknowledge the fact that our justice system is yet to be perfect and America will strive to protect its citizens to the very end of their lives.

Related posts are in the federal legislation index.

Change Ways Accomplices Are Punished

That's the title of an editorial from the Saturday edition of the Dallas Morning News.  It's one of an occasional series by the News on capital punishment in Texas.  LINK

Conventional wisdom suggests that the death penalty is reserved for the worst of the worst criminals – those who commit the most heinous murders.

But in Texas, we sometimes execute accomplices, people who never pulled the trigger and who might have been only peripherally involved in a crime. The law of parties permits the court to hold someone criminally responsible for the acts of another.

Incredibly, an accomplice can be put to death for the triggerman's crime. That accomplice might not even get his own trial, as Texas allows joint trials in capital cases.

But proposed legislation would change that.

Several lawmakers are pushing for needed reforms that would guarantee a defendant's right to his own trial in a death penalty case. Other bills would rule out sentencing an accomplice to death using the law of parties.

This common-sense legislation, which got a hearing Thursday in a House subcommittee, would ensure that defendants in capital cases have their own day in court and are not punished for another's actions. Even death penalty proponents should welcome these safeguards.

Gov. Rick Perry, who has shown little hesitancy about the death penalty, expressed concerns about simultaneous trials in 2007 when he blocked Kenneth Foster's execution and reduced his sentence to life in prison. The governor urged the Legislature to look at the issue.

And:

Adopting this legislation would send the message that Texas no longer plans to impose the ultimate punishment for crimes that someone else committed. These bills, as well as one filed by Rep. Harold Dutton, would take aim at let's-make-a-deal gamesmanship that pits defendants in capital cases against one another.

Dutton's HB 298 would exclude testimony from accomplices and informants who have cut a deal for a reduced sentence. While this common practice certainly makes a prosecutor's job easier, relying on testimony from a witness determined to spare himself is a dangerous proposition in life-and-death decisions. The legislation also would require that statements from prison snitches be corroborated by a recording.

Prosecutors and police no doubt will argue that these witnesses are an important part of building a case. But unimpeachable evidence should be required to take someone's life.

Related articles on the law of parties is here.

Death Penalty Drains Justice System Resources

That's the title of an OpEd in the Billings Gazette by former Montana prosecutor John Connor.  LINK  Here's an extended excerpt from this must-read:

I served as chief special prosecutor for the state of Montana for 21 years. During that time I was involved with the prosecution of many homicide cases, including five death penalty cases involving homicides committed by prison inmates against other inmates. I also managed the prosecution of 14 inmates for the 1991 prison riot homicides.

I believed at the time that the death penalty was needed to keep correctional officers safe from inmates serving a sentence of life without parole. Without the threat of execution, I thought, there would be no deterrent to prevent such inmates from taking the life of a correctional officer.

But my direct experience prosecuting prison homicides changed my mind. I have come to believe that the death penalty is an incalculable drain on our limited criminal justice resources. It makes bizarre celebrities of the sentenced inmates while essentially ignoring the suffering that victims' families must endure through decades of legal scrutiny. And frankly, it lessens our own humanity. It is time for Montana to repeal it.

I would never advocate for repealing the penalty if I thought it placed our correctional personnel at risk. During the years I prosecuted cases of violence in the prison, I learned to greatly admire and respect the dedicated corrections professionals that care for and manage the inmate population in all of our state and county detention facilities. Theirs is a thankless, stressful responsibility for which they are paid very little, especially given the demands of their jobs. Nonetheless, they continue to labor in the most difficult of environments for Montana's citizens.

But the best way to protect our correctional professionals is to recognize the need for a well-trained staff, for the commitment of adequate resources to operate the institutions safely, and for innovative management incentives that serve to reduce the opportunity for prison violence.

After the 1991 riots in the Montana State Prison's maximum-security unit, prison officials examined their protocols and made many positive changes to heighten security and ensure safety. As a result of those changes, there have been no homicides in the maximum security unit since the riot. The drop in homicides is not because of the death penalty - which existed in Montana both before and after 1991 and did nothing to deter the riots - nor because there are fewer dangerous people in the prison now than there once were. The decrease in homicides is a result of better procedures and other positive changes to the management of the prison.

The truth is that inmates serving sentences of life without the possibility of parole are not the primary threat to corrections officers' safety. Studies have shown that inmates serving life sentences are actually very manageable because they do not want to jeopardize the limited privileges they can earn in the system. A well-managed prison with proper classification and staffing can create incentives for lifers to behave while segregating and punishing those who are a threat before violence ever occurs. Our prison system already knows how to do this.

The reality is that the death penalty is not, and never has been, a deterrent.

SB 236, by Montana Senator Dave Wanzenried, is scheduled to be heard by the state's House Judiciary Committee this Wednesday at 8:00 am (MDT).  Earlier news coverage from Montana begins here.

The Jeffery Wood Case

"Death row inmate loses appeal," is Michael Graczyk's AP report from the Sunday Austin American Statesman.

A Texas death row inmate who came within hours of being executed last summer has lost an appeal in federal court, where his lawyers argued that he is too mentally ill to be put to death.

The 5th U.S. Circuit Court of Appeals, based in New Orleans, rejected the appeal from Jeffery Wood, 35, who received the death penalty for the January 1996 slaying of Kriss Keeran at a convenience store in Kerrville.

Evidence showed that Wood waited in a car outside the convenience store while his roommate, Daniel Reneau, fatally shot 31-year-old Keeran in the face with a .22-caliber pistol.

Both men then robbed the store, taking more than $11,000 in cash and checks.

Reneau was executed in 2002.

Wood's execution was scheduled for August, but the lethal injection was delayed by a federal judge, who ruled that Wood could be tested to determine whether he is mentally competent to understand why he should be executed.

In the appeal to the New Orleans-based court, Wood's lawyers said they needed a second expert, a neuropsychologist, to examine Wood. He had already been examined by a forensic psychologist.

"Mr. Wood lacks a rational understanding of his death sentence and of the reasons for his imminent execution," Wood's attorney Scott Sullivan said in the motion filed last week.

The Fifth Circuit's ruling is here.  Earlier coverage of the Wood case is here.

Death Penalty Puts Undue Strain on Justice System

That's the title of an OpEd in today's Denver Post by Mary Dodge, an associate professor of public affairs at the Univeristy of Colorado, Denver.  LINK  Here's a lengthy excerpt:

Admittedly, Nathan Dunlap deserved to receive the death penalty.

In 1993, Dunlap, with extreme indifference toward human life, entered an Aurora Chuck E. Cheese restaurant and murdered four employees and attempted to kill another. Given the circumstances of the crime, his criminal history, and the widespread public outrage that surrounded the case, even the most adamant anti-death penalty advocates may reluctantly concede that the sentencing decision was a just outcome.

Oddly, and in stark contrast to the hue and cry for his execution, the intricacies of the Dunlap case help support the proposed legislation to abolish the death penalty in Colorado.

From an emotional standpoint, the death penalty is only well supported under a theory of retribution and specific deterrence. An eye for an eye position toward the death penalty, however, ignores evidence that the punishment fails to promote general deterrence, lacks public support, and results in the execution of innocent people — all arguments that fail to persuade when a particularly heinous crime occurs.

A more convincing argument from a rational-choice perspective is a cost-benefit analysis. Surprisingly, the financial burden for the courts and corrections systems to implement the death penalty is far higher than sentences involving life without parole.

Consider conservative estimates that the 16-year Dunlap saga thus far has cost Colorado $2 million — and he still sits on death row.

Pretrial costs for the defense and prosecution in capital cases include psychological evaluations, pretrial motions (which can be as high as 400 filings), investigations and discovery.

Dunlap's case included over 20,000 pages of discovery materials. Defense side costs in a capital case can easily exceed $100,000. The financial burden for the defense is generally incurred by the public defender's office, that is, the taxpayers.

The price for pursuing prosecution is astronomical. The 18th Judicial District Attorney's office billed the Colorado Department of Corrections $204,000 to cover capital cases for six months in 2007 and was criticized for using death penalty prosecutions as a "cash cow."

The preparation cost, according to District Attorney Carol Chambers, was "an over-conservative estimate." A report by researchers at the Urban Institute discovered that almost 70 percent of the costs are accumulated during the trial because of extensive case preparations, longer court proceedings, intensive voir dire processes to death-qualify the jurors, and the additional penalty phase.

Dunlap began his appeals over 10 years ago. The most recent, filed in federal court, included a 750-page motion. Before the current appeal, the U.S. Supreme court refused to hear the case. In 1999 and 2001, the Colorado Supreme Court rejected his appeals. A 2002 hearing by the trial court to consider sentence reduction lasted for 52 days. In 2007, the Colorado Supreme Court struck down the lower court's finding that Dunlap's trial counsel was ineffective — a post conviction relief ploy commonly used by everyone sentenced to death, regardless of the abilities of the defense attorney. Now the case may languish in the U.S. District Court for years.

HB09-1274 offers a conservative estimate on the cost of the death penalty — money that may be better spent on cold cases. Experts estimate that court battles in death penalty cases can reach several million dollars.

Earlier coverage from Colorado is here.

Missouri

"Death Penalty Moratorium Gains Support in Missouri," is in the KC Tribune.  It's written by Debbie Coleman-Topi.

Organizers of a longtime movement to halt executions of convicted criminals believe the years of protests and lobbying may finally be paying off. The effort is gaining momentum in Missouri's statehouse.

A legislative bill that calls for a three-year death penalty moratorium forms the root of the group's optimism, said Jude Huntz, an official with the Kansas City-St. Joseph Diocese of the Catholic Church. The bill has garnered 65 co-sponsors in the Missouri House, while a similar version of the bill has about six co-sponsors in the Missouri Senate, said Huntz, who leads a group of vocal death penalty opponents.

"We're closer than ever before," Huntz said of his 20-year effort to abolish the practice in Missouri. "The use of the death penalty has always been predicated on self-defense. We believe we have a penal system that's safe," he said, adding that life in prison ensures that the criminal will do no further harm.

Huntz said more than 50 people attended an advocacy day in February at the State Capitol. Participants, including a group of Notre Dame de Sion High School students, pleaded their case with state lawmakers. "They (the students) really impressed the legislators," Huntz said.

Those involved in the movement, which include a group of Methodist Protestants, and representatives of the American Civil Liberties Union, expect the Missouri House to act on the drafted bill soon, even before the legislature breaks for summer recess.

"A matter of life or death," by Erin Wisdom is in the Saturday St. Joseph News-Press.

Dennis Fritz lost 11 years of his life.

Mr. Fritz, who now lives in Kansas City, was sentenced to life in prison in 1988 after being charged with the murder of a woman who worked at a bar in Ada, Okla., he’d been known to frequent. Police claimed that hair found at the crime scene had been microscopically analyzed and determined to be his.

It wasn’t until 1999 that further DNA testing revealed the hair was not Mr. Fritz’s but actually belonged to the man who had been the state’s main witness at Mr. Fritz’s trial. Mr. Fritz was freed at last — but not before years of injustice took away his chance to see his daughter grow up and to otherwise live his life as he should have been able to.

Unfortunately, statistics show Mr. Fritz isn’t alone in being wrongly charged with murder and suffering severe consequences because of it. Some have been exonerated only after being put to death for crimes they allegedly committed — and it’s in light of this that First Christian Church in St. Joseph has hosted Mr. Fritz and others with similar stories who shared about their experiences.

In addition, the church voted Sunday to pass a resolution calling for a moratorium on executions of Missouri inmates on death row. This resolution supports a bill now in the Missouri legislature — HB 1870 — sponsored by Rep. Bill Deeken of Jefferson City. If the bill is passed, no executions will take place in Missouri until 2012. And during this moratorium period, a committee will study the details of cases in which the death penalty has been sought and will recommend remedies for deficiencies it finds.

“In Matthew 25, Jesus specifically mentions ministry to people in prison as ministry to him,” says the Rev. Chase Peeples, pastor of First Christian. “In our society, there is perhaps no group that could be considered 'the least of these’ more than people in prison, especially those in death row. Without approving of any crimes that may have been committed, we can declare that because of God’s love for them, each person on death row deserves a fair trial, competent legal counsel and access to the latest in DNA technology.”

Earlier news from Missouri is here and here.

Reaction in New Mexico

"Pushing back the death penalty in New Mexico," is the Los Angeles Times editorial from Friday's edition.

New Mexico Gov. Bill Richardson has had his share of setbacks recently. He ran for president and never came close. Then he was considered for a spot in the Obama administration but was forced to withdraw. Those detours sent him home to New Mexico to resume his governorship, and for that we are grateful. Richardson's inability to move up meant that on Wednesday, he was in his office and in position to perform the most important act of his political life: He signed a bill abolishing the death penalty in New Mexico.

As long-standing opponents of capital punishment, we welcome any move to roll it back, whether judicially or legislatively. We have cheered as state and federal courts properly have raised objections on various grounds -- from the cruelty of certain forms of execution to the disparities in the penalty's application to the occasional case of an innocent person on death row. But New Mexico’s abolition is particularly satisfying for several reasons. It is the work of a legislature and a governor, and thus immune to the protests of those who complain about judicial activism. And it takes place in a state outside the liberal centers, and thus is a reminder of the widening revulsion at the punishment. It is hardly surprising that New York, New Jersey and Massachusetts refuse to engage in state murder; it is more notable to find opposition in Alaska, West Virginia and, now, New Mexico. Increasingly, the death penalty is becoming a regional phenomenon, with executions largely confined to Texas and the Deep South.

And:

In signing the bill, Richardson called his action the most difficult of his life, but said he was compelled to take it because "the potential for ... execution of an innocent person stands as anathema to our very sensibilities as human beings." Those are words of moral courage by a governor fortunately in place to deliver them.

The Portales News-Tribune columnist Karl Terry writes, "Life-in-prison sentence OK legislation."

The question of the death penalty has divided our nation for a long time. It’s not likely that Gov. Bill Richardson’s signature on legislation banning the death penalty will end the struggle.

New Mexico will become the second state to ban the death penalty since the U.S. Supreme Court reinstituted it in 1976. Fourteen other states do not impose the death penalty.

The debate rages on though as Bernalillo County Sheriff Daren White vowed to seek a statewide ballot measure on the issue. At the same time federal legislation to once again ban the death penalty is progressing.

It’s pretty clear our state and nation is pretty torn by the  debate. I tend to hear a lot more people who favor the death penalty than I do those who support its ban. Myself, I’m torn on the issue.

I’m pretty much opposed to using the death penalty simply as a punishment because I don’t see the value in it and I struggle morally with anyone taking another’s life. The main exception for me would be to defend yourself or others. That opens things up when you throw that thought in there.

And:

Given New Mexico’s judicious use of the death penalty and the CSI age of forensics and DNA that have lowered the incidence of mistakes I don’t think the practice is as barbaric as its critics would have us believe. But I don’t have a big problem with doing away with it either, as long as we have the assurance of a true sentence of life-in-prison, which this legislation provides.

"Sheriff wants referendum on death penalty penalty repeal," is the AP report from the Las Cruces Sun-News.

Bernalillo County Sheriff Darren White is looking into the possibility of petitioning to put the repeal of New Mexico's death penalty before the voters.

White said Thursday he's looking at a "reverse referendum" after the 2009 Legislature passed and Gov. Bill Richardson signed a measure that replaces lethal injection with life in prison without possibility of parole. The new law will apply to crimes committed as of July 1.

"I think there's a lot of support out there" for an effort to reinstate the death penalty, the sheriff said.

New Mexico's constitution has a referendum provision that allows citizens to try to overrule laws approved by the Legislature.

It's very difficult to get such a measure on the ballot. In fact, only three referendums have been on the ballot since statehood in 1912 — the most recent in 1964 — and only one passed, according to the Legislative Council Service.

White said he's been flooded by calls since Richardson signed the bill Wednesday.

"Judging from the phone calls I've received, asking, 'What can I do, what can I do,' this is an option afforded to us by law," White said. "Let's look at it and see if it's feasible."

That review will take several days, he said.

Among other questions, he's trying to figure out how many signatures of registered voters would be required to get the measure on the ballot.

This excerpt reference Brian Sanderoff, president of Albuquerque-based Research & Polling:

A Gallup poll last October that asked people whether they favor or oppose the death penalty for murderers found 64 percent in favor, 30 percent opposed and 5 percent unsure.

Polls also show the majority of New Mexicans support the death penalty when the question involves someone convicted of murder.

However, support slips when New Mexicans are asked such questions as whether they'd favor repealing the death penalty in exchange for a guarantee of life in prison without possibility of parole, Sanderoff said.

"The majority then support the repeal in conjunction with life in prison without possibility of parole," he said.

Earlier coverage of New Mexico's repeal begins here.