The StandDown Texas Project

Texas Execution

Texas is scheduled to carry out its 14th execution of 2009, tonight in Huntsville.  It would be the state's 437th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's executions. 

AP has this report on the scheduled execution of Derrick Johnson, via the Dallas Morning News.

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines.

In their appeals, attorneys argued Johnson's sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning with the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation.

The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

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

According to TDCJ, five more Texas executions are scheduled this year; more are likely to be added by state district courts.  Capital Defense Weekly notes execution dates in other states.

To date, there have been 23 executions in the nation this year.

Texas is scheduled to carry out its 14th execution of 2009, tonight in Huntsville.  It would be the state's 437th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's executions. 

AP has this report on the scheduled execution of Derrick Johnson, via the Dallas Morning News.

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines.

In their appeals, attorneys argued Johnson's sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning with the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation.

The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

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

According to TDCJ, five more Texas executions are scheduled this year; more are likely to be added by state district courts.  Capital Defense Weekly notes execution dates in other states.

To date, there have been 23 executions in the nation this year.

Texas is scheduled to carry out its 14th execution of 2009, tonight in Huntsville.  It would be the state's 437th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's executions. 

AP has this report on the scheduled execution of Derrick Johnson, via the Dallas Morning News.

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines.

In their appeals, attorneys argued Johnson's sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning with the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation.

The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

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

According to TDCJ, five more Texas executions are scheduled this year; more are likely to be added by state district courts.  Capital Defense Weekly notes execution dates in other states.

To date, there have been 23 executions in the nation this year.

Texas is scheduled to carry out its 14th execution of 2009, tonight in Huntsville.  It would be the state's 437th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's executions. 

AP has this report on the scheduled execution of Derrick Johnson, via the Dallas Morning News.

Lawyers for Johnson went to the U.S. Supreme Court to block the punishment, contending Johnson was mentally disabled and ineligible for execution under high court guidelines.

In their appeals, attorneys argued Johnson's sentence should be commuted to life, that he was the product of a difficult childhood where both his parents were imprisoned for drug convictions, that he was beaten by relatives who raised him, that he had a history of school suspensions and expulsions beginning with the sixth grade and that IQ testing put him within the range of what the courts have defined as mental retardation.

The 5th U.S. Circuit Court of Appeals rejected the argument earlier Thursday, a day after the Texas Court of Criminal Appeals turned Johnson down.

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

According to TDCJ, five more Texas executions are scheduled this year; more are likely to be added by state district courts.  Capital Defense Weekly notes execution dates in other states.

To date, there have been 23 executions in the nation this year.

Time to Kill the Death Penalty

That's the title of an editorial in Colorado's Greeley Tribune.  LINK

Even justice has a price tag, and in today’s times, when legislators were talking about cutting $500 million from higher education, we have to make tough choices on the kind of justice we’d like to pursue.

We think the Colorado House made the right decision when it decided to kill the death penalty and use the money toward solving cold cases.

We understand perfectly why families of victims would want to see the ones who caused them so much pain put to death. But in these times, we simply can’t afford it.

The death penalty is a luxury.

The last death-penalty case tried in Colorado cost $1.4 million to prosecute. It costs around $70,000 to prosecute a non-capital case. You can do the math.

And since the death penalty was reinstated in 1975, the state has executed exactly one person. Was it the person who the state spent $1.4 million to put to death? Nah. He wound up pleading guilty and got life in prison.

There are other things that disturb us about the death penalty — the fact that it really doesn’t deter anything, the fact that minorities are the ones usually sentenced to death or the unthinkable mistakes that kill those who didn’t do it in the first place — but the price tag is enough to convince us to banish it for good.

This is not a plea for sympathy for those convicted of first-degree murder. But life without parole seems like justice to us.

Earlier coverage begins with this morning's earlier post.

Colorado Senate Committee Backs Repeal

"Senate committee backs eliminating Colorado death penalty," is Colleen Slevin's AP report via the Aspen Times.

A proposal to eliminate the death penalty in Colorado cleared another hurdle at the Capitol on Wednesday.

The Senate State, Veterans and Military Affairs Committee endorsed the measure (House Bill 1274) in a party-line vote, sending in to another committee for a vote. The bill would take the $1 million now being spent to prosecute death penalty cases and use it to investigate cold cases. That would add seven employees to the state's cold case unit, which currently has only one investigator.

All three Democrats on the committee voted for the measure, and both Republicans voted against it.

Sen. Bill Cadman, R-Colorado Springs, acknowledged the death penalty is expensive but said the state should find other ways to fund cold case investigations, such as cutting funding for tourism promotion or prison recreation programs. Sen. Dave Schultheis, R-Colorado Springs, said the state could have spent less on promoting renewable energy instead.

But bill sponsor Sen. Morgan Carroll, D-Aurora, argued that no other item the state spends its money on has gotten it so little in return. She said the state has spent between $1 million and $4 million a year for about 40 years to prosecute death penalty cases but has executed only one person during that time.

The last execution in Colorado was in 1997, when 53-year-old Gary Lee Davis was put to death for his conviction in a 1986 slaying.

Two men are now on death row in the state, but their sentences wouldn't be affected by the bill.

The Denver Post has, "Divide over death row at state Capitol," by John Ingold.

A bill to repeal the death penalty in Colorado divided families of murder victims during a hearing at the state Capitol on Wednesday.

Clutching photographs and sometimes tearing up, those who have lost loved ones at the hands of others gave passionate testimony both for and against the death penalty at a state Senate committee meeting. The panel approved the bill 3-2 on a party-line vote.

On one side were family members of victims whose killers have not been caught and who said money spent prosecuting death-penalty cases would be better spent investigating cold cases, as the bill directs. Stephanie Cummins — whose brother, cousin and step-father were all murdered in unrelated and unsolved cases — said her grief would not end with the killers' deaths.

"These murderers, I don't want death for them," she said. "I want them behind bars for the rest of their lives. I am willing to trade vengeance for justice."

On the other side of the debate were people who have seen their loved ones' killers and who believe the death penalty is an appropriate punishment for murder. Joe Cannata, the founder of Voices of Victims whose daughter was murdered 22 years ago by her boyfriend, read a letter from Rhonda Fields, whose son, Javad Marshall-Fields, was killed by a man now on death row.

"There are simply some times in our society where the death penalty is appropriate and the right thing to do," Fields wrote in the letter.

Dean Toda writes, "Panel advances bill to abolish death penalty," for today's Colorado Springs Gazette.

A bill to abolish the death penalty in Colorado advanced Wednesday when the state Senate's State, Veterans and Military Affairs Committee approved it on a 3-2 vote.

By abolishing the death penalty, HB1274 would save an estimated $1 million a year, mostly by ending death-penalty prosecutions. Because the money saved would be transferred to the state's cold-case homicide unit, many family members of murder victims support the bill.

Sen. Morgan Carroll, D-Aurora, prime sponsor of the bill in the Senate, said $1 million, roughly a fifteenfold increase in funding for the cold-case unit, would make a difference in solving some of the state's 1,430-plus unsolved slayings.

"Our goal is to take these murderers off the streets," said Debra Meyer of Colorado Springs, whose brother, Ricky Espinoza, was murdered there in 2001 and is on the cold-case list. She testified in favor of the bill.

And:

The death penalty is used very sparingly in Colorado. The state has executed only one person in four decades, and its death row currently has only two residents.

But capital prosecutions aren't rare at all - the death penalty has been sought in 124 Colorado cases since 1980. And they are costly: Tamara Brady of the state public defender's office testified that its capital murder cases cost an average of $584,000 a year while first-degree murder cases cost $70,000 a year.

"Panel votes to end state executions," is Joe Hanel's report for the Durango Herald.

The Senate State Affairs Committee voted on party lines to send the bill on to the Appropriations Committee.

Officials with the Department of Public Safety - which reports to Gov. Bill Ritter - testified against the bill. If it survives the Senate, Ritter would have to sign it for it to become law. Ritter brought seven death-penalty cases when he was Denver district attorney.

Colorado has executed only one prisoner in 40 years.

Ron Sloan of the Colorado Bureau of Investigation said HB 1294 makes the false promise that extra money for his agency's cold-case unit will lead to more homicide convictions. "That notion, in and of itself, is patently cruel, I believe," Sloan said.

Attorney General John Suthers asked the panel to keep the death penalty.

"Colorado should retain the death penalty for one basic reason: There are heinous crimes being committed in our society for which life in prison is not an adequate response," Suthers said.

As an example, he cited Oklahoma City bomber Timothy McVeigh. Earlier, the father of one of McVeigh's victims testified in favor of the ban.

Bud Welch, who lost his 23-year-old daughter in the bombing, said prosecutors tell "the big lie" when they say victims' families will get closure once murderers are executed. All the families of McVeigh's victims who he knows did not get closure from McVeigh's death, Welch said.

Earlier coverage from Colorado begins with this post.

The Lethal Injection Debate in Nebraska

The Wauneta Breeze reports, "Several key bills being debated in the Unicameral this week."  It's written by Dave Vrbas.

Next week should be a philosophically intense week in the Unicameral, as two bills go up for debate: LB 36 and LB 675. The lethal injection bill, LB 36 would define lethal injection as Nebraska’s method for execution of criminals on death row.

Earlier coverage from Nebraska is here.  The Nebraska Legislature is scheduled to adjourn June 4, the 90th day of this year's session. 

Nebraska's Judiciary Committee has also approved LB 306, which would abolish the state's death penalty, however, the bill does not have priority status, and it is unclear whether it will reach the floor. 

The state has not had a method to execute death row inmates since February 2008, when its Supreme Court ruled the use of the state's electric chair to be unconstitutional.  Nebraska legislators did not address the issue in their 2008 session. 

According to the Death Penalty Information Center, Nebraska has 10 prisoners on its death row.  The state has executed three since 1976.

Colorado's HB 1174 - UPDATED

UPDATE -- I've been informed that the hearing may have been moved to the Old Supreme Court Chamber.  You can listen at this LINK

The legislation, which passed the Colorado House on April 21, will be heard later this afternoon by the Senate State, Veterans & Military Affairs Committee.  You can listen at this LINK, using Windows Media Player.  The hearing will be held in SCR 353. 

HB 1274 would dedicate cost savings from repealing capital punishment to fund the investigation of homicide cold cases.

Westworld has, "Is the death penalty worse than life in the hole?" on its blog.  The report is written by Alan Prendergast.

Last week, a bill to end the death penalty in Colorado squeaked through the House of Representatives by one vote; it reaches a Senate committee on Wednesday afternoon, April 29. The abolitionists maintain that execution is too costly and time-consuming and that the money could be better spent funding a statewide unit to investigate the 1,400 unsolved murders in Colorado over the past forty years.For more on the basic "trade vengeance for justice" argument, see Jessica Centers' 2008 feature "A Cure for the Common Cold Case" and an April 7 blog featuring Howard Morton, who leads an organization called Homicide Victims and Missing Persons.

Still, a lot of the talking points in the death-penalty debate have little to do with the tax dollars spent -- more than $30 million in the last decade -- trying to persuade juries and appeals judges to give the state's lethal injection chamber a customer or two. The pro-death argument seems to be that truly heinous crimes require truly heinous punishment, whether that penalty is a deterrent to others or not (it's not, according to most researchers). That got us thinking: Is execution truly the ultimate penalty available under current law? Or is a lifetime in solitary confinement an even more miserable fate?

Earlier coverage of the Colorado legislation begins with this post.

New Hampshire

"N.H. Senate puts off action on death penalty bill," is the just-filed AP report via the Brattleboro Reformer.

The state Senate has voted to put off action on a bill that would get rid of capital punishment, four months after New Hampshire sentenced a man to death for killing a police officer.

The vote on a House-passed repeal bill could come up again later in the Senate.

Death penalty supporters argued the law is a deterrent and is narrowly crafted - as evidenced by its rarity. Supporters of repealing the death penalty countered that executions are morally wrong.

Michael Addison was sentenced to die in December for murdering Manchester police Officer Michael Briggs in 2006. Addison is appealing the sentence. Attorney General Kelly Ayotte said repealing the law would likely mean Addison would end up with life instead. The governor had promised to veto the bill.

Earlier coverage from New Hampshire begins here.

NACDL Issues Report on Misdemeanor Courts

Tresa Baldas writes the web-only report, "NACDL report blasts misdemeanor courts," for National Law Journal.

Misdemeanor courts are a waste of time and money.

So claims the National Association of Criminal Defense Lawyers, which on Tuesday issued a first-of-its-kind national report on the status of misdemeanor courts across the country. The report, which involved 18 months' worth of research at courts in seven states, concluded that state and local governments are wasting millions of tax dollars to prosecute petty offenses, such as curfew and open container violations, loitering and feeding the homeless. The report found that taxpayers are footing the bill for more than 10 million misdemeanor prosecutions per year, paying an average of $60 a day, per inmate, to incarcerate misdemeanor defendants.

Courts are also violating the constitutional rights of citizens who are being hauled into court, the report claims, and often coerced into cutting deals without legal representation.

The report, titled Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts, comes on the heels of a recent announcement that misdemeanors will no longer be prosecuted in Contra Costa County, Calif. because of budget cuts.

Perfect timing, noted NACDL President John Wesley Hall, who called misdemeanor courts "a black hole for justice and resources." Hall added, "It's a huge waste of money when you think of the huge fundamental costs that go along with misdemeanor prosecutions — the prosecution's time, the judge's time, and jail incarceration time — these are mostly hidden costs."

Hall said that a huge part of the costs to communities is jailing persons who cannot afford to pay fines. New York City's jail rates are especially high, he said, noting that it costs $200 a day to house a jail inmate there.

Money issues aside, Hall said he's more concerned with misdemeanor courts "ramming" through defendants who can't afford a lawyer and coercing them into striking deals that have consequences, such as a crime showing up on a background check, costing someone a job or credit. He is also calling on the justice system to "find some way to decriminalize really, really minor offenses."

The report is available here.

Continued News Coverage of CCA Presiding Judge Keller

Today's Austin American-Statesman carries the editorial, "Don't impeach Keller."

As bad a job as Sharon Keller is doing as presiding judge of the Texas Court of Criminal Appeals, the Texas Legislature should not impeach and convict her to remove her from office.

State Rep. Lon Burnam, a Fort Worth Democrat, is pushing to impeach Keller, who has been the presiding judge on the state's highest court for hearing appeals of criminal convictions since 2001 and on the court since 1995.

Burnam's criticism is on target: He faults her generally for a pro-prosecution bias that goes out of its way to uphold convictions and in particular for her cruel shuttering of the courthouse door to a last-minute death penalty appeal in 2007 from inmate Michael Richard, who was executed that night.

Keller's handling of the Richard case was so outrageous that the State Commission on Judicial Conduct has accused her of violating her duty to protect his access to the legal system and bringing discredit on the judiciary. She is scheduled to go on trial on those charges on Aug. 17.

Keller denies any wrongdoing and is fighting the charges.

At the end of the public trial before a special master appointed by the Texas Supreme Court, the findings will be submitted to the Commission on Judicial Conduct, which will decide whether Keller should be exonerated, reprimanded or removed from office. If reprimanded or removed, Keller can appeal to a special panel of seven appellate judges, and, if necessary, from there to the Texas Supreme Court.

It's an elaborate process for holding judges to high standards, but also to protect their rights — even if they have not been all that punctilious about the rights of those dependent on their power. It's also non-partisan.

Impeachment, on the other hand, likely would raise issues of partisanship from the start. Burnam himself is a liberal firebrand, for example, while Keller is a conservative Republican. However pure Burnam's motive, his push for impeachment is tainted from the start with partisan politics — particularly in a House and Senate that both have Republican majorities.

The Statesman's Chuck Lindell has started a new feature on the Focal Point blog, Keller Files.  Today's installment, the first is, "Answers in the case against the state’s top judge."

Late Monday, a House committee held a hearing on Rep. Lon Burnam’s resolution to investigate whether to file articles of impeachment against Sharon Keller, the state’s highest criminal judge. (Related story)

No vote was taken on the impeachment resolution, keeping its future in doubt.

But several questions repeated in the hearing — and, frankly, some wrong answers — made one thing clear: We can all use a primer on the issues behind the charges and countercharges that have Keller fighting to keep her job on the Texas Court of Criminal Appeals.

Even without the impeachment effort, Keller faces a special Aug. 17 trial on ethics charges by the State Commission on Judicial Conduct, which accused her of improperly closing her court to an after-hours appeal by death row inmate Michael Richard in 2007.

From now until Aug. 17, I’ll pick occasional issues to explore in the Keller case.

Today, the Keller Files takes up a deceptively simple issue:

Which of the court’s nine judges should have been told that Richard’s lawyers were having computer problems and requested the court to stay open past the clerk’s office 5 p.m. closing?

Answer: Judge Cheryl Johnson

Johnson was the duty judge assigned (by rotation) to accept any late appeals in Richard’s case. The duty judge is supposed to read the pleadings first and, if there is an issue that requires discussion, call the other judges into a conference by phone or in person. The duty judge also distributes the brief and tabulates the other judges’ votes on whether to grant or deny the requested relief.

Johnson, however, didn’t learn that Richard’s lawyers requested extra time until she read about it in this newspaper. She was, to put it mildly, a bit miffed.

“If I’m in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings,” she told me at the time.

There is also some follow-up reporting on the impeachment bill hearing, which began late Monday night.  At the Dallas Morning News Crime blog, Diane Jennings writes, "Impeachment sponsor surprised by former judge's opposition to proceedings."

Reporter Steve McGonigle journeyed to Austin Monday for the hearing regarding possible impeachment of Sharon Keller, presiding judge of the Texas Court of Criminal Appeals. The hearing didn't start until late at night and didn't end until early Tuesday morning. In case you haven't heard about developments, here's Steve's take on events:

The attempt of Rep. Lon Burnam, D-Fort Worth, to launch impeachment proceedings against Keller ran into unexpected opposition from a prominent legal figure during a hearing of the House Judiciary and Civil Jurisprudence Committee Monday night.

Frank Maloney, a former Democratic colleague of Republican Keller on the Texas Court of Criminal Appeals, was the only witness of a handful who appeared, to advise committee members that creating a special impeachment panel would be "disastrous" for the judiciary.

Maloney's point was that legislators would be unwise to begin the impeachment process before the State Commission on Judicial Conduct completes a hearing on ethics charges that could strip Keller of her post. A hearing is scheduled for mid-August.

"I think it's an attack on the very system of the judiciary," he said, "to come up here where there is a procedure being taken under the Constitution of the state and say we ought to institute a dual procedure on the basis of opinion."

Maloney insisted he was not speaking for Keller, whom he described as "the darling of the district attorneys" because of her conservative views. He said Keller had reversed half of the opinions he authored while on the Austin court in the 1990s.

And:

Rather than face impeachment, Maloney said, Keller should be allowed to defend her conduct before a special master appointed to hear the ethics charges.

"Maybe she should be removed. Maybe she should be reprimanded," Maloney told the House committee. "I don't know. I don't know what the facts are. I just know there is a heck of a presumption that may or may not be correct."

For Texas Lawyer, Mary Alice Robbins writes, "Former Judges' Views Clash at Hearing on Bill to Impeach Keller."

Two former judges voiced opposing views Monday as the Texas House Committee on Judiciary and Civil Jurisprudence weighed a resolution that would create a seven-member committee to consider impeaching Court of Criminal Appeals Presiding Judge Sharon Keller.

Michol O'Connor, a former justice on Houston's 1st Court of Appeals, told committee members that what Keller allegedly did in Michael Richard's case -- refusing to keep the CCA clerk's office open past its normal closing time so his lawyers could file a motion for a stay of execution -- was "outrageous." Keller shortened Richard's life by eight months, O'Connor said.

On Sept. 25, 2007, the day Richard was executed, the U.S. Supreme Court had granted a writ of certiorari in Baze v. Rees to consider whether the lethal injection protocol constitutes cruel and unusual punishment. Richard's lawyers were rushing to file a motion for stay and a writ of prohibition with the CCA. The U.S. Supreme Court denied Richard's motion for stay of execution, and the state executed Richard later that night. [See "Out of Time," Texas Lawyer, Nov. 19, 2007, page 1.]

In its April 2008 decision in Baze, the high court affirmed the Kentucky Supreme Court's holding that the protocol does not violate the Eighth Amendment, "because it does not create a substantial risk of pain, torture or lingering death," Chief Justice John Roberts Jr. wrote in the U.S. Supreme Court's opinion.

O'Connor, now a Houston solo, urged the House committee to vote to create a special committee to start the impeachment process. A House vote to impeach Keller would remove her from the bench immediately, O'Connor said.

"She would be off the bench and no longer in a position to make the unwise and unjust decisions she's made," O'Connor said of Keller.

But Frank Maloney, a former CCA judge, told committee members they do not have enough evidence about what Keller did in Richard's case to warrant impeaching her.

Earlier coverage begins with this post from yesterday.

Compensation for Unjust Convictions in Texas

That's the title of an Austin American-Statesman editorial with the subhead, "Timothy Cole Act would honor signature victim of wrongful conviction who died in prison."

It's rightly being named the Timothy Cole Act. And if it's passed by the Legislature, which it should be, it will be the influence of Cole — who died a decade ago while in prison — that gave it the momentum to become law.

Under the measure, compensation for people who were wrongfully imprisoned would increase to a lump sum payment of $80,000 per year of incarceration, up from the current $50,000. It would direct payments to the next of kin in cases in which those who were wrongfully jailed die before they were exonerated.

This is a good bill that the House passed last week. Now it's up to the Texas Senate to follow suit, and the chances look good, according to Senate sponsors, Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston. The bill could come up for a vote this week.

The legislation is likely to require a constitutional amendment to pardon the deceased Cole, who spent about 14 years in prison for a crime he did not commit. The Cole case drew national attention earlier this year, being called Texas' first posthumous DNA exoneration.

While a student at Texas Tech University in 1985, Cole was convicted of raping fellow student Michele Mallin. Police zeroed in on Cole, though he did not fit the profile of the person who had raped several women in the Lubbock area. Mallin had identified him as her attacker in a rigged lineup, underscoring problems with eyewitness identification procedures. But this year she joined Cole's family in seeking post-mortem exoneration for him after DNA evidence cleared Cole and fingered another person, who ultimately confessed to the crime. Tragically, it was too late for Cole, who died of asthma behind bars while serving a 25-year sentence.

The legislation in his name would provide financial compensation to Cole's mother, Ruby Session, who never gave up pursuing her son's innocence. In addition to lump sum payments, the bill offers monthly annuity payments for life, health insurance and 120 hours of tuition courses at a community college or state university.

Earlier coverage of Tim Cole's exoneration begins with this post.

Cone v. Bell

The Supreme Court has ruled in favor Gary Cone, a Tennessess death row inmate.  Prosecutors had withheld information that should have been turned over to Cone's lawyers.  The Court's opinion is here.  The Scotus Wiki page for Cone v. Bell is here.

SCOTUS Blog has this initial post.

The Court has released the opinion in Cone v. Bell (07-1114). The decision below, which held for the state, is vacated and remanded in a 7-2 opinion by Justice Stevens available here. The Chief Justice filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion, joined by Justice Scalia.

AP has filed, "Court rules for Tenn. death row inmate," via Google News.

The Supreme Court has thrown out a death sentence for a Tennessee death row inmate who was deprived of key evidence at his trial.

The justices on Tuesday set aside the death sentence given to Gary Bradford Cone, who was convicted of beating an elderly couple to death in 1980.

Prosecutors belittled Cone's claims that he was a drug addict who suffered from post-traumatic stress syndrome following military service in Vietnam. But it was later revealed that they withheld information that could substantiate Cone's claims.

Cone has never had a hearing that considered the concealed evidence and whether it justified converting his sentence from death to life in prison, his lawyer, Thomas Goldstein, told the justices during arguments in December.

"While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state, the lower courts failed to adequately consider whether that same evidence was material to Cone's sentence," said Justice John Paul Stevens, who wrote the majority opinion for the court.

Cone was convicted of beating to death Shipley Todd, 93, and his wife, Cleopatra, 79, in their home in Memphis in 1980. At his trial, he put on an insanity defense, arguing that he was a drug addict who suffered from post-traumatic stress syndrome following military service in Vietnam.

The prosecutor scoffed at Cone's claims, calling them "baloney." A jury sentenced him to death.

It turned out, however, that the prosecutor withheld information that could substantiate Cone's claims, including police and FBI communications identifying Cone as a drug user and as an addict, and witness statements describing his behavior as "weird" and "wild-eyed."

Cone first gained access to some of the information through an open-records request, rather than the usual path of the prosecution providing potentially exculpatory material to the defense.

The case was vacated and remanded to the federal trial courts.

Coverage of the December oral argument is here, with a link to earlier coverage.

Legislative Committee Hears Keller Impeachment Resolution

"Democrat vows to push Keller impeachment," is Chuck Lindell's report in today's Austin American-Statesman.

Democratic Rep. Lon Burnam said Monday he will employ rarely used rules to try to force the Texas House to vote on impeaching the state's highest criminal judge for her role in a 2007 death penalty case.

Burnam, of Fort Worth, said Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is unfit to continue serving because of her pro-prosecution bias and because she turned away an after-hours appeal by lawyers for death row inmate Michael Richard, who was executed later that night.

"She's an embarrassment to the state, she's an embarrassment to the Republican Party, she's an embarrassment to her profession," Burnam said. "She needs to be off the bench."

Keller already faces a special trial on charges, filed by the State Commission on Judicial Conduct, that she violated her duty to protect Richard's access to the legal system. The trial, to begin Aug. 17, could determine whether the Republican judge remains on the court she joined in 1995.

Keller's lawyer said she did nothing to warrant removal from office.

"What she did is not a violation of the canons of judicial ethics or any state statute," lawyer Chip Babcock said Monday. "Last election millions of Texans thought she was the superior candidate for office. I don't think impeachment or the commission ought to override the will of the people."

It has been 34 years since an elected Texas official, District Judge O.P. Carrillo of Duval County, was impeached and removed from office for a bogus rental scheme.

Christy Hoppe writes, "Rep. Lon Burnam calls for vote on whether to impeach Court of Criminal Appeals
Justice Sharon Keller," for the Dallas Morning News.

Keller's case is under review by the Commission on Judicial Conduct, but Burnam said Monday that the Legislature should not wait months before the commission rules.

"The only way to get Judge Keller off the bench promptly is through the impeachment process," he said.

The House committee on Judiciary and Civil Jurisprudence is weighing a resolution of impeachment where testimony from lawyers and others is expected to help outline the procedure to remove a sitting judge.

Burnam said one of his witnesses, ethics lawyer Charles Herring of Austin, will testify that Keller's actions were tantamount to "judicial homicide," he said.

The last time a judge was impeached by the Legislature was state district Judge Oscar Carrillo in 1975. Carrillo was found guilty by the Senate of corruption charges and removed from his Duval County office.

Burnam said he believes that a resolution of impeachment is a "privileged motion," which if raised, must be considered by the House. If a majority votes for the impeachment, a trial would be held by the Senate, which could convene itself without the governor calling a special session, he said.

Currently, no articles of impeachment, the specific charges raised against Keller, have been written. The Monday night hearing on his resolution would to create a seven-member committee to create the charges and present them to the House. But if that doesn't happen, Burnam said he will present the question of impeachment to the full House before the end of the session.

"I'd rather lose the vote than not call it," he said.

The Fort Worth Star-Telegram has, "Burnam aims to get impeachment proceedings started against judge before legislative session ends," by Dave Montgomery.

A House committee was asked late Monday to launch the state’s first impeachment proceedings in more than three decades as Rep. Lon Burnam renewed his call for the ouster of Texas’ highest-ranking criminal court judge.

The Fort Worth Democrat presented witnesses to reinforce his claim that Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, committed "a gross neglect of duty and willing disregard for human life" by refusing the keep the court’s office open after hours to accept a Death Row appeal. The inmate, Michael Richard, was executed hours later.

"What she did was so outrageous," retired state appeals court Justice Michol O’Connor of Houston said as she waited to testify on behalf of Burnam’s motion.

Neither Keller nor her attorney, Chip Babcock of Houston, were present at the hearing before the House Judiciary and Civil Jurisprudence Committee. The hearing, which got off to a late start and ran into the night, focused on Burnam’s request to start impeachment proceedings and did not address the merits of the case. A committee vote will come later.

The State Commission on Judicial Conduct has ordered a trial-like proceeding against Keller. She has denied that she acted improperly and plans to vigorously defend herself, Babcock said.

"The Legislature has certainly got a role to play, but I’m really focused on the issues before the commission," Babcock said in a telephone interview. Asked about the separate impeachment case going forward, Babcock said, "I would have to take that as it happens, but I would be surprised if it did. I hope that it doesn’t."

And:

Austin attorney Charles Herring Jr., an expert on legal ethics issues who has advised the Texas Supreme Court, said in written testimony that Keller’s behavior "clearly meets the constitutional standards for impeachment."

"I submit that if that type of egregious judicial misconduct, with the most serious possible consequences imaginable, does not require removal from office, nothing does," Herring wrote.

Follow the link for the text of House Resolution 480 and additional information on the legilsation.

The Texas Civil Rights Project has released its prepared testimony for the hearing.  TCRP Executive Director Jim Harrington filed the original complaint against Judge Keller with the Commission on Judicial Conduct.  In his testimony, Harrington said:

Even though the Commission on Judicial Conduct is considering an action
against Judge Keller, it may or may not take appropriate action. However, the
only constitutional remedy is impeachment by the representatives of the people.

The framers of the 1876 Texas Constitution and the voters who ratified it
created a strong judiciary. The 1876 Constitution deliberately fashioned a
weak legislature and a weak governor because of past abuses of power. The
judiciary was the one branch of government that kept power, and very extensive
power. The drafters of the constitution felt that only judges could protect
the people against the government and monied interests taking away their
rights. For that reason, the populist tradition of electing judges was framed
into our current constitution. The authors of the constitution and voters
wanted to elect their judges to keep direct control over them so they would
not become beholden again to the big financial interests of the state and
political caprice -- as they had been in prior times when appointed by the
governor.

Impeachment thus is the people's way of undoing the election of a judge who
has betrayed their trust and acted with "official delinquency," that is,
abused their office to the extent of violating the mandate to administer
fairly and impartially the constitutions of the nation and of the state.

The charges against Judge Keller are sufficiently grave that the House of
Representatives has to duty to formally consider them, and then act on them.
We believe the ultimate conclusion of this process would be impeachment by the
House, trial by the Senate, and removal from office.

Whether Judge Keller is ultimately convicted or vindicated is for a later
date, but the House must at least be faithful to its obligation to formally
consider and act on the substantial charges brought against her.

TCRP Board Member Chuck Herring, an legal ethics specialist, testified:

Before I outline the specific allegations that in my view meet those
constitutional standards for impeachment and removal, I want to emphasize
three general points that I believe make this Resolution a particularly
important matter for legislative action.

First, if the published allegations are correct, Judge Keller was personally
responsible for killing a man on a day when he should not have died. That is
the most severe possible consequence imaginable for judicial misconduct.1 I
submit that if that type of egregious judicial misconduct, with the most
serious possible consequences imaginable, does not require removal from
office, nothing does. By comparison, the charges against the last judge
impeached by this Texas House, Judge O.P. Carrillo, alleged misconduct that
included stealing groceries; using public funds to pay ranch hands and other
private employees; using public equipment on his ranch; filing a false
financial statement; having conflicts of interest; and conspiring to
improperly influence a grand jury.2 The Texas Senate acquitted Judge Carrillo
on the impeachment article alleging stealing groceries, but convicted him on
an article alleging conspiracy to collect government rental monies on
non-existent equipment--and dismissed the other articles without a decision.3
In short, the Texas Legislature convicted Judge Carrillo and removed him from
office for false rentals. He did not wrongfully cause anyone's death, which is
exactly what Judge Keller allegedly did.

Second, based on Judge Keller's Answer filed in the Commission on Judicial
Conduct proceedings, and based upon the published remarks of her lawyer, it
appears that she is claiming that the lawyers for Mr. Richard wanted some
extraordinary relief in the form of keeping the court clerk's office after
5:00 p.m., and then those lawyers capriciously or negligently chose not to
follow other available remedies that permitted an after-hours filing. If that
is her position, I submit that her position is simply not credible. The
lawyers who handled Michael Richard's case were with the Texas Defender
Service (TDS), which was founded in 1995 and is the most skilled, respected,
and experienced organization in Texas providing representation to persons on
death row. Their Board includes law school professors from Texas and across
the country who are expert in death penalty law and representation, including
for example the Co-Director of the Capital Punishment Center at the University
of Texas School of Law, and the Co-Director of the Death Penalty Clinic at
Boalt School of Law. Professor Dow, who worked on the Richard case, heads the
Innocence Project at the University of Houston. He is a superb advocate, and
he knows how these cases work as well as anyone in Texas. In short, in this
field of law practice, they are the best and most knowledgeable lawyers
available. Their commitment to justice is awe-inspiring and legendary.

Third, I think it is very important that Judge Keller's alleged misconduct
took place in the context of a death penalty case. The death penalty is the
ultimate criminal punishment. From 2002 to 2006, 40 percent of the executions
in the United States took place in Texas; in 2007, over 60 percent were in
Texas; in 2008, over 50 percent. Whether you are for or against the death
penalty in Texas is irrelevant to the merits of the present matter. But those
who support the death penalty want that penalty administered fairly and
legally. More than any other single act in the history of Texas, Judge
Keller's conduct in this case has held the death penalty and the Texas
criminal justice system up to international scorn and ridicule. If you google
"Sharon Keller," you get over 42,000 hits--and you find an almost unlimited
number of denunciations of Judge Keller and our system of justice in Texas. We
need to restore respect for Texas justice. The Legislature can do that now,
promptly, and as the elected representatives of the people of Texas, you can
speak with the authoritative voice that this case requires.4

Earlier coverage begins with this post.

Money, Morality, and Repealing the Death Penalty

That's the title of Elaine de Leon's report at Religion & Ethics Newsweekly.  LINK  Here's an extended excerpt from this must-read:

The ancient Roman Colosseum, known historically for violent gladiator battles, animal combat, and public executions, has become a symbol for international protest against capital punishment.

Over the past decade, every time a convicted person receives a stay of execution or a government abolishes the death penalty Roman officials change the Colosseum’s night illumination from white to gold.

It happened in December 2007 when New Jersey abolished the death penalty. It happened again this March when Governor Bill Richardson signed a bill to repeal the death penalty, making New Mexico the 15th US state to do so, according to the Death Penalty Information Center.

The special lighting was recently repeated on April 15, when Richardson and other New Mexico representatives, including Archbishop Michael Sheehan of Santa Fe, were honored at a Colosseum ceremony marking the state’s repeal. Richardson also met with Pope Benedict XVI and spoke at a news conference in Rome organized by the Sant’Egidio Community, an international lay Catholic organization opposed to capital punishment.

Richardson, who is a Democrat, a Catholic, one of the most prominent Hispanic politicians in the US, and a one-time supporter of the death penalty, told the Associated Press in February he was struggling with his position but his views on the death penalty had “softened.” He pointed to the work of the Roman Catholic Church against capital punishment, indicating that discussions with Archbishop Sheehan had influenced his own considerations.

But Richardson also cited as a factor the financial cost of imposing the death penalty. In doing so he highlighted one of the most striking recent developments in the death penalty debate: economic arguments against capital punishment have become as important as religion or ethics, and they are now regularly invoked by opponents of capital punishment. Because life without parole is cheaper for the state than the death penalty, the repeal of capital punishment, they say, will allow more resources to be channeled to survivors of the victims of crime. In New Mexico, according to the legislative finance committee a death penalty case costs approximately $20-25,000, compared to $7-8,000 for a non-death penalty murder case.

For many death penalty opponents, New Mexico’s repeal was the result of years of hard work. The bill was first introduced 12 years ago, but it always faced challenges in the senate’s judiciary committee. “It was heartbreaking,” says the Rev. Dr. Holly Beaumont, a Disciples of Christ minister and legislative advocate for the New Mexico Conference of Churches. She represents the conference on the New Mexico Coalition to Repeal the Death Penalty.

Over the years faith-based death penalty opponents in New Mexico remained resolute, says Beaumont. “We weren’t going away, and the legislature knew that we would be back again.” She attributes their ultimate success to the multi-layered nature of the coalition, a collaboration of faith communities, the families of murder victims, Death Row exonerees, and other “people of conscience.” The coalition focused on reaching and educating those who had not yet made up their minds about capital punishment and pointed its advocacy efforts directly at the Roundhouse, New Mexico’s state capitol building and the home of its legislature.

In addition to New Mexico, a number of other states around the country have been dealing with death penalty repeal this year. A coalition of religious leaders, lawyers, and the families of murder victims is supporting passage of a pending bill to abolish the death penalty in Colorado, where this month the House of Representatives voted down capital punishment by a one-vote margin, and lawmakers say they will use the money saved (estimated at about $1.4 million per death penalty case) to solve hundreds of “cold” murder cases. The Colorado bill now heads to the state Senate, where it is expected to pass.

Earlier coverage from New Mexico is here; the state legislation category index, here.

The Colorado Debate

"Death penalty debate lingers," is Brandon Gee's report in the Steamboat Springs Pilot.

Northwest Colorado’s top prosecutor and Rep. Randy Baumgardner, R-Hot Sulphur Springs, oppose a repeal of Colorado’s death penalty that passed the state House of Representatives in a tight 33-32 vote.

House Bill 1274 would devote the expected savings of eliminating death as a sentencing option to the Colorado Bureau of Investigation’s Cold Case Homi­cide Team. It is sponsored by House Majority Lea­der Paul Weissmann, D-Louisville.

After the House approval last week, the bill was introduced in the state Senate on Thursday and assigned to the State, Veterans and Military Affairs Committee. State Sen. Al White, R-Hayden, did not return a phone call Friday seeking comment.

In the House, only one Re­­publican voted for H.B. 1274, and six Democrats voted against it.

“I do not support repealing the death penalty,” 14th Judicial District Attorney Elizabeth Oldham, a Republican, said Friday. “Philosophically, I do agree with the death penalty, but I have not encountered a case where I thought it was appropriate. … I think it should only be used in the rarest of circumstances.”

"Death penalty, R.I.P.," is the latest from Denver Post columnist Vincent Carroll.

The Colorado House may have voted last week to abolish the death penalty, but on one level it was pure pretense. The death penalty had been effectively abolished long before the vote.

Juries abolished it. An appeals process as slow as geologic time abolished it. A band of foot-dragging defense attorneys abolished it. And yes, the shifting legal standards imposed by courts — in 1972, 1991 and 2002 — also helped to abolish capital punishment.

There has been exactly one execution in this state since 1967 — an era in which Coloradans numbering in the thousands have died violent deaths at the hands of killers, and continue to perish every week. For that matter, the only reason that rapist-torturer-murderer Gary Davis was put to death in 1997 is that he eventually decided he wanted no more appeals.

Attorney General John Suthers, who opposes House Bill 1274, says the fact that Coloradans twice voted "overwhelmingly" in favor of the punishment ought to count for something. Well, perhaps, since the each vote was by a margin of 2 to 1. But the first referendum occurred in 1966 and the second eight years later. Elected leaders are not obliged to treat these votes as permanent directives. Some lawmakers, such as the Senate minority leader, weren't even alive at the time.

Today's politicians, meanwhile, are the beneficiaries of a generation of experience during which efforts to enforce one death penalty statute or another have done little but squander resources. Time's up. The Senate should bow to reality and follow the House's example.

Supporters might have a better case if Colorado jurors had shown a consistent appetite for the death penalty, but they haven't. Oh, now and then they'll send a particularly vicious criminal to death row — someone like Sir Mario Owens, for example, who was convicted last year for killing a witness to another murder and the man's fiancee. But it's rare — and Owens is nearly as likely to die in prison as to be executed given the roundabout appeals process.

When Frank Rodriguez died of liver failure in 2002, he'd been on Colorado death row for 17 years. Execution-bound Nathan Dunlap committed mass murder in 1993, was finally convicted in 1996, and has been marking time ever since.

Not that I'd celebrate the death penalty if it operated here in the assembly line fashion that it does, say, in Texas or Oklahoma. In an era when life in prison without parole is mandatory for first-degree murder, the death penalty strikes me as superfluous — as well as a grisly throwback.

The Grand Junction Sentinel carries the editorial, "Legislature shouldn't kill state's death penalty."

If state senators follow the lead of their colleagues in the House, Colorado could soon eliminate the death penalty.

We think that would be a mistake and we hope the Senate carefully considers the consequences of such action when it takes up House Bill 1274.

Colorado cannot compare with many other states that still have the death penalty — Texas being the most notorious.

Since 1976, when the U.S. Supreme Court allowed states to begin enforcing revamped death-penalty statutes — after a 10-year moratorium — Texas has executed 436 prisoners, as of March.

Colorado’s grand total in that time: 1. We currently have just two inmates on death row.

A large reason for that is the no-holds-barred attitude of the Colorado Public Defender’s Office regarding the death penalty. When a prosecutor anywhere in the state opts to seek the death penalty, the Public Defender’s Office musters a bevy of attorneys to work full-time, filing motions, seeking delays and otherwise making things difficult for the prosecutor.

Only district attorneys in the largest jurisdictions have the staff and resources to counter such a legal onslaught. Most simply avoid seeking the death penalty. It amounts to a statewide policy being effectively set by unelected government appointees, and that’s unfortunate.

We’re not arguing for Colorado to compete with Texas in executing inmates. We believe the death penalty should be used rarely, for the most heinous crimes.

Earlier coverage from Colorado begins here.

The Maryland Legislation

"Bill Could Spare Some in Md. With Murder Trials Pending," is written by John Wagner and Henri E. Cauvin.  It appeared in the Sunday edition of the Washington Post.

Legislation that significantly raises the bar on evidence needed to seek the death penalty in Maryland was meant by its authors to apply only to future cases. But the bill, which Gov. Martin O'Malley has pledged to sign in coming weeks, could also spare the lives of some defendants in pending trials -- and has sparked debate about what should happen to prisoners already on death row.

A largely overlooked provision in the bill bars the death penalty for sentences pronounced on Oct. 1 or later, unless the case meets the new standards of evidence. The standards limit capital cases to those with biological or DNA evidence, a videotaped confession or a videotape linking the defendant to the crime. If the standards are not met, prosecutors can seek only life without parole.

Sen. Robert A. Zirkin (D-Baltimore County), who introduced an amendment that included the new standards, said he never intended for the law to apply to cases in which murder charges have already been filed. But a review of the bill by lawyers at the attorney general's office concluded that it would do just that in cases in which sentencing has not occurred by the time the bill takes effect Oct. 1.

Five defendants in Maryland have been charged with murder and could face the death penalty, and the known evidence in some of their cases might not meet the new standards. Among those is a Washington County man charged in late 2007 with fatally shooting a police officer. The trial is scheduled to start next month.

Zirkin's amendment was one of two introduced during a chaotic debate on the Senate floor last month that dramatically altered the bill, which originally sought a full repeal of the death penalty. The other amendment, sponsored by Sen. James Brochin (D-Baltimore County), prohibits the death penalty in cases built solely on eyewitness testimony.

A third amendment, drafted by legislative staff, was intended to make the two other amendments compatible. It contained the Oct. 1 provision in question. Zirkin and Brochin said they were unaware of that part of the amendment, which was introduced under Brochin's name.

"My intention certainly was not to make this retroactive in any way whatsoever," Zirkin said. Brochin called the episode "unfortunate."

And:

The bill does not directly affect the five prisoners now on death row.

But death-penalty supporters and opponents suggested in interviews that O'Malley (D), who as governor has the power to commute death sentences, could use the new standards as a guide in reevaluating cases. O'Malley, who sponsored the bill to abolish the death penalty, declined to discuss that prospect in a recent interview.

The cases of at least four of the five death-row prisoners would not meet the new evidence standards, said Jane Henderson, executive director of Maryland Citizens Against State Executions, which has researched the crimes. Some of them took place more than two decades ago, when the use of DNA evidence was less common.

David E. Kendall, a partner at Williams & Connolly who served on Maryland's death-penalty commission and has worked on death-penalty litigation for decades, said the new law could provide defense attorneys for those on death row with powerful arguments for commutation. "It does give a defense lawyer a reasoned basis to say, 'Look, you know the standard has really changed,' " Kendall said.

 The article notes that a moratorium remains in place in Maryland due to the lack of lethal injection procedures.  The governor has indicated that he will allow procedures to be developed now that the legislature has acted on capital punishment.  Earlier coverage of the Maryland legislation begins with this post.

Mental Retardation Issue at Supreme Court - Bobby v. Bies

"High court to hear death case," is Malia Rulon's report in today's Cincinnati Enquirer.

A case that began with a child's brutal murder in the basement of an abandoned Price Hill building goes to the U.S. Supreme Court today.

The court's decision, not expected for months, could mean life or death for the killers convicted in the 1992 case - even though they may be retarded.

Ten-year-old Aaron Raines was kidnapped May 12, 1992, from a park in Lower Price Hill. Police found his body later that night in the basement of an abandoned building in Cincinnati. The Oyler Elementary School fourth grader had been kicked, beaten with a piece of concrete and a metal pipe and strangled with a piece of twine, court documents said.

Fingerprints led investigators to Darryl Gumm and Michael Bies of Hazard, Ky., who each said he witnessed the death but blamed the other for inflicting the deadly wounds.

And:

Both argued at sentencing that they were mentally retarded.

The jury did not accept their assertion and sentenced both to die. On appeal, the Ohio Supreme Court upheld the conviction and death sentence but acknowledged that they were mentally retarded.

Then, in 2002 - a decade after the murder - the U.S. Supreme Court ruled in Atkins v. Virginia that mentally retarded defendants were ineligible for the death penalty.

In light of the Atkins decision, the Hamilton County Common Pleas Court held a hearing in which it was determined that Gumm was mentally retarded and should be moved off death row. Bies' claim of mental retardation with the court is pending.

But the Sixth Circuit Court of Appeals ruled that holding such hearings was prohibited under the double-jeopardy clause, which protects people from being tried twice for the same offense, because the Ohio Supreme Court had already accepted that they were mentally retarded. That court ruled that Bies' death sentence be set aside.

The state is arguing that the Ohio Supreme Court's "off-hand" comment that Bies' had "mild to borderline mental retardation" is not valid because the case was not about Bies' mental capacity; it was over whether or not to uphold the death penalty, which it did.

"The court found that the heinous and cruel nature of the crime, among other aggravating factors, outweighed this mitigating evidence (of Bies' mental retardation) beyond a reasonable doubt," the state argued in its petition to the Supreme Court.

It is also arguing that the double-jeopardy clause does not apply.

"A state post-conviction proceeding on the question of Bies's mental retardation does not twice put Bies in jeopardy because it does not expose him to the risk of additional criminal sanctions," the state said.

The U.S. Supreme Court must decide whether holding a post-conviction hearing to determine the mental capacity of anyone sentenced to death before the 2002 Atkins ruling violates double jeopardy.

A decision is expected in June.

If the state is successful, Bies would face a hearing in Hamilton County to determine his mental capacity. If, at that hearing, he is found to be mentally retarded, then his death sentence would be vacated. If not, then he would be put to death.

"Developmentally disabled individuals cannot be executed, period," Ohio Attorney General Richard Cordray said in a statement Friday. "However, it is important that the proper procedures be followed to make that determination for any death row inmate."

"Ohio: condemned killer must prove disability again," is the AP report via the Lancaster Eagle-Gazette.

The state is fighting to reinstate the death sentence of a convicted killer, arguing he must prove again that he is mentally disabled under U.S. Supreme Court standards.

Ohio says the mental state of Michael Bies has never received a proper hearing because state court findings came six years before the Supreme Court in 2002 barred the execution of the mentally disabled.

“You wouldn’t bother arguing over whether somebody got one foot in bounds if the rule at the time was they had to have two, but now that the rule’s been changed that one matters, you might well have different things to say about that issue,” said Ohio Attorney General Richard Cordray.

Bies, 36, killed a 10-year-old boy in Cincinnati in 1992.

The Supreme Court on Monday will hear Ohio’s challenge to a federal appeals court decision last year that overturned Bies’ death sentence. A ruling is expected by summer.

At least 85 death row inmates, including four from Ohio, have successfully challenged their death sentences under the 2002 decision.

Unlike Bies, those four used the standards laid out by the high court. Bies (BEYE’-ess) bases his argument on earlier rulings by state courts that upheld both his conviction and his death sentence while acknowledging his low IQ of 69.

“Bies’s personality disorder and mild to borderline mental retardation merit some weight in mitigation,” the Ohio Supreme Court said in its 1996 decision upholding the sentence.

Bies argues the state would be committing double jeopardy by holding a hearing on his mental disability since state courts already determined his mental state.

The U.S. Supreme Court defined mental disability as significantly sub-average intellectual functioning, significant limitations in two or more day-to-day skills and an onset of mental disability before age 18.

SCOTUS Blog has this preview of the oral argument prepared by Martine Cicconi.  Here's an extended excerpt:

In Atkins v. Virginia (2002), the Supreme Court held that the execution of mentally retarded individuals violates the Eighth Amendment. On April 27, in No. 08-598, Bobby v. Bies, the Court will consider whether double jeopardy protections apply to a state post-conviction hearing to determine a death-sentenced inmate’s mental competency under Atkins, when the state supreme court has previously referenced the inmate’s “borderline mental retardation.”

Background

In 1992, Michael Bies was sentenced to death for the murder of a ten-year-old boy. At the penalty phase of his trial, Bies offered as mitigating evidence the testimony of a psychologist, who explained that his IQ fell within the range of mild to borderline mental retardation.

On direct appeal, the Ohio Supreme Court agreed that Bies’s “borderline mental retardation” warranted mitigation. But it nonetheless concluded that the aggravating circumstances of his crime outweighed the mitigating factors and affirmed his death sentence.

After his initial efforts to seek state post-conviction relief were unsuccessful, Bies filed a petition for habeas corpus in federal court, arguing that because he was mentally retarded, the Eighth Amendment prohibited his execution. Following the Atkins decision, the federal district court directed Bies to return to state court to seek relief. Bies thus filed a third petition for state post-conviction relief and then filed a motion for summary judgment. He argued that because the trial record established and the state supreme court recognized his retardation, double jeopardy now precluded the state from disputing it.

The Ohio Court of Common Pleas denied Bies’s motion for summary judgment. In that court’s view, the Ohio Supreme Court had not conclusively determined that Bies was mentally retarded because the state’s standard for finding retardation under Atkins was not established at the time the court reviewed his death sentence. Bies then returned to federal court to press his claims, this time successfully: the district judge granted his petition for habeas relief, agreeing that double jeopardy’s collateral estoppel component prevented the state from relitigating his mental capacity.

Ohio appealed, and the Sixth Circuit affirmed. Noting that an issue of ultimate fact cannot be re-litigated when it has been determined by a valid and final judgment, the Sixth Circuit used a four-part test to determine whether the state could contest Bies’s mental retardation. First, the court considered whether Bies had met the burden of demonstrating that the issue was actually decided in a previous proceeding. Rejecting the government’s argument that the standard for assessing mental retardation had not been established at the time of Bies’s direct appeal, the Sixth Circuit found that the state supreme court had determined Bies’s mental status based on the clinical definition of retardation — the same standard it used after Atkins. Next, the court concluded that the determination of Bies’s mental retardation was necessary to the outcome of his appeal because the Ohio Supreme Court was statutorily required to weigh all aggravating and mitigating factors when reviewing a death sentence. Moreover, the state had an opportunity to litigate the issue of Bies’s mental competency throughout his direct appeal. Lastly, the Sixth Circuit determined that the Ohio Supreme Court’s determination was final, and thus collateral estoppel precluded the state from disputing Bies’s mental retardation.

The Sixth Circuit also addressed whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited the district court’s authority to grant Bies’s petition. Under AEDPA, a federal court may only issue a writ of habeas corpus if the inmate is in custody “pursuant to a state court decision that is contrary to or involved an unreasonable application of clearly established” Supreme Court precedent, or a decision based on “an unreasonable determination of the facts in light of the evidence.” Focusing on the latter provision, the Sixth Circuit found that the state post-conviction court had unreasonably analyzed the facts of the case when it found that the Ohio Supreme Court had not determined Bies’s mental retardation consistent with the post-Atkins standard. The Sixth Circuit noted that the state supreme court’s conclusion was based largely on the testimony of the psychologist who interviewed Bies; her extensive findings, the court reasoned, permitted a diagnosis of mental retardation consistent with the clinical definition. Because the clinical definition continues to be the appropriate standard for determining mental retardation post-Atkins, the state court’s conclusion was unreasonable in light of the evidence presented and therefore ripe for review by the federal courts.

SCOTUS Blog's sister site Scotus Wiki has the briefing in the case, here.

'Dallas DNA' Premieres Tomorrow

Jennifer Emily writes, "'Dallas DNA' spotlights county's conviction integrity unit," for today's Dallas Morning News.

Some Dallas County courtroom dramas are going prime time.

A new television show, Dallas DNA, focuses on the work of local prosecutors to free the wrongly convicted and ensure convictions are fair. It premieres Tuesday night on Investigation Discovery.

The program features men exonerated for crimes they did not commit, the trial of a man linked to a rape and murder by DNA two decades later and people who claim innocence but are shown through genetic testing to have committed crimes. It also features Dallas County District Attorney Craig Watkins' ambivalence about capital punishment even as he participated in a death penalty case.

"I think a lot of people thought we were just concerned with the innocence side," Watkins said. "But you get to see the integrity side where we see how we're concerned with how our convictions are obtained."

Investigation Discovery will air six episodes of Dallas DNA on consecutive Tuesdays. Depending on response to the show, more episodes could be ordered.

The conviction integrity unit was formed after Watkins took office in January 2007 in response to the county's DNA exonerations. So far 19 men have been exonerated. That's more than any other county in the nation since 2001, when Texas began allowing post-conviction DNA testing.

Christo Doyle, executive producer of Dallas DNA, said Investigation Discovery was drawn to the "revolutionary" work of the conviction integrity unit.

"What I like most about this series is that every case is very unique," Doyle said. "The strength of the series is the variety."

Doyle said although he cannot pick a favorite episode, he is most drawn to the first, called "Sweet Justice." That episode features Johnnie Lindsey, who spent 26 years in prison for a sexual assault he did not commit.

"After you see him exonerated after 26 years, you literally see him coming to life," Doyle said.

The program's website is here.  Earlier coverage of the program is here.

To Date in the States

The 2009 state legislative season has been especially active for death penalty issues.  As many legislature are winding down, I thought this might be a good time to provide a summary.

To date, two states have given final approval to significant death penalty legislation.  Bills are still pending in several states.

New Mexico.  The state abolished its death penalty replacing it with a sentence of life without parole.  The legislation was HB 285, and it has been signed into law by the governor.  The legislative session has concluded.

Maryland.   The Maryland Senate rejected an abolition bill supported by the governor.  It passed legislation that severely restricts death penalty prosecutions to cases involving DNA evidence, video-recorded crimes, and/or video-recorded confessions.  SB 279 was adopted by the House, where there was majority support for abolition.  The legislative session has concluded.  While the governor has not yet signed the bill into law, he has stated his intention to do so.

Legislation is currently pending in several states.

Colorado.  HB 1274 has passed the Colorado House and is awaiting consideration by the Senate.  It repeals the state's death penalty and dedicates cost savings to fund cold case homicide investigations.

Nebraska.  The state's unicameral legislature is yet to consider LB 36, which would mandate lethal injection as the state's method of execution.  The bill has been approved by the Judiciary Committee and given priority status; it's expected to be considered soon by the full legislature.   The Judiciary Committee has also approved LB 306, which would abolish the state's death penalty.  This bill does not have priority status, and it is unclear whether it will reach the floor.  Nebraska's legislature adjourns June 4, following a 90 day session.

In February 2008 the Nebraska Supreme Court ruled the use of the state's electric chair to be unconstitutional.  Since that ruling, the state has not had a method of execution to carry out death sentences.  Nebraska legislators did not address the issue in their 2008 session.

New Hampshire.  HB 556 would abolish the death penalty.  It passed the House and is pending in the Senate.  Members of the Senate Judiciary Committee favor a study instead of repeal.  The governor has vowed to veto the bill if passed.  New Hampshire legislators passed an abolition bill in 2000.  That bill was vetoed by the then-governor.

Connecticut.  HB 5459, which would abolish the death penalty, was favorably recommended by the House Judiciary Committee.  Its prospects are uncertain.

Alabama.  The Alabama Senate Judiciary Committee has favorably recommended SB 324, which would impose a three-year moratorium on executions.  The legislation is not expected to pass.

Montana.  SB 236 would have abolished the death penalty, substituting the punishment of life without parole.  The legislation passed the Montana Senate, but was rejected by the House Judiciary Committee on an 11-9 vote.  The bill is technically in the Committee and could be called for another vote, but that is not expected.

Several legislative sessions have already concluded.

Kansas.  SB 208 would have abolished the death penalty.  It was favorably recommended by the Senate Judiciary Committee, but rejected by the full Senate.  The Kansas Judicial Council will be requested to examine cost issues of capital punishment.

Georgia.  The Georgia State Assembly passed SB 13 which allows prosecutors to seek a punishment of life without parole.  The governor is expected to sign the bill into law.  Under current law, LWoP can only be assessed in cases where the death penalty had been sought.

Virginia.  Governor Kaine vetoed SB 961 which would have expanded death penalty eligibility to accomplices.  Currently, Virginia allows death to be sought only against the actual perpetrator of a capital murder.  The veto was sustained by the Virginia General Assembly.

Utah.  SJR 14, a proposed constitutional amendment, would have given the legislature additional control over post-conviction review of death sentences.  The legislation was proposed by the state attorney general as a way to limit appeals.  The legislation passed the Senate, but was rejected in the House.  Had it passed the legislature, it would have been voted on by the public in a general election.

Alaska.  Alaska lawmakers did not act on legislation introduced by the Speaker of the House to institute capital punishment.

Arkansas.  Arkansas passed HB 1706, which removes the Arkansas Department of Corrections' lethal injection procedures from jurisdiction under the state's Administrative Procedures Act.  It was designed to end litigation challenging the state's lethal injection procedure.

Details are in StandDown's state legislation category index.

May It Please the Court

That's the title of Maira Kalman's latest work posted at her New York Times blog, And the Pursuit of Happiness.  I would urge a visit for a delightful Friday afternoon diversion.  LINK

Tim Curry, 1938-2009

"Longtime Tarrant district attorney Curry dies after lung cancer fight," is Aman Batheja report for the Fort Worth Star-Telegram.

Tim Curry, Tarrant County’s top prosecutor and the longest-serving criminal district attorney in Texas, died shortly after midnight Friday at his home. He was 70.

Diagnosed with lung cancer in the summer of 2008, Curry underwent aggressive chemotherapy treatments. He was hospitalized at least once for complications stemming from his treatments and has been at home for the past few months.

Flags flew at half staff Friday morning at the Tarrant County Courthouse.

Mr. Curry took over the reins of Tarrant County’s prosecutors and legal staff in 1972 promising to clean up corruption. While attracting his fair share of controversy and political spats, Mr. Curry’s 36 years in the post were largely marked by widespread praise for his skillful competence and his lack of ego.

And:

According to the Texas constitution, Mr. Curry’s replacement will be appointed by the governor to serve until the next election.

The report notes that Alan Levy is the First Assistant District Attorney.

Oklahoma Goveror Issues Reprieve to Consider Clemency

"Gilson execution delayed," is Meghan McCormick's report in today's Norman Transcript.

Donald Lee Gilson, convicted in the 1995 murder of an 8-year-old rural Cleveland County boy, has had his execution postponed, officials said Thursday.

Gov. Brad Henry granted Gilson, 48, a stay until May 14 to give him time to review Gilson's case.

"I take clemency recommendations very seriously and will give this case the thorough deliberation it deserves," Henry said.

Gilson's original execution date was May 5. The Oklahoma Pardon and Parole board met April 14 and recommended clemency for Gilson by a 3-2 vote.

The board asked the governor to commute the sentence to life in prison without parole, according to Gov. Henry's office. Gilson has served prison time at the Oklahoma State Penitentiary in McAlester.

According to Henry's office, Henry and his legal staff will review the recommendation and other information related to the case. Henry also will meet with both prosecution and defense attorneys, allowing them to present arguments and evidence to him.

"After that process is completed, the governor will make a final decision on the clemency recommendation," according to a press release from the governor's office.

"During Gov. Henry's term in office, the State Pardon and Parole Board has recommended clemency for five death row inmates, but he has approved only two, commuting the sentences to life in prison without parole," the release stated.

Earlier coverage of the Oklahoma clemency recommendation is here.  The governor's news release is here.

In Georgia, the Macon Telegraph carries Greg Bluestein's AP report, "Ga. board denies clemency for condemned man."

Georgia's pardons rejected a bid for clemency on Thursday by a white supremacist set to be executed next week for the murder of one of his followers.

The Georgia Board of Pardons and Paroles issued no comment when it denied the request for clemency from condemned inmate William Mark Mize, who is set to be put to death on April 28 for the 1994 murder of Eddie Tucker.

Related articles are in StandDown's clemency category index.

New Prison Death Chamber Questioned

That's the title of an AP report from Nevada, via the Silicon Valley Mercury News.  It's written by Brendan Riley  LINK

Lawmakers raised questions Thursday about plans to replace the Nevada State Prison's old death chamber—described by a former NSP warden as "almost medieval"—with a new one near Las Vegas.

The proposed execution building, near the High Desert Correctional Center north of Las Vegas, was discussed during a Senate-Assembly budget subcommittee hearing on a $62 million prison system project that also includes a medical center which accounts for most of the cost.

State Corrections Director Howard Skolnik said the old death chamber at NSP, located in Carson City, needs to be replaced for many reasons—including the fact that the 9-by-12-foot chamber, entered through a submarine-type door, is more than half a century old.

Assemblywoman Debbie Smith, D-Sparks, asked why a new execution chamber would be built more than 200 miles from Ely State Prison in eastern Nevada, where more than 80 condemned inmates are held on death row.

Smith also said that if Nevada State Prison is kept open, despite Skolnik's initial efforts to have it shut down and replaced by a new southern Nevada prison, it may not make sense to build another death chamber elsewhere.

Sen. Bob Coffin, D-Las Vegas, suggested a new execution structure might not be needed since Nevada doesn't have that many executions. Twelve men, all but one of whom refused appeals, have been executed in Nevada since the U.S. Supreme Court cleared the way for capital punishment to resume in 1976. Nevada's last execution was in 2006.

Skolnik said that unless some of the current death row inmates waive their appeals, the next execution in Nevada "probably will be later" rather than sooner. But he also said he doesn't anticipate court decisions doing away with capital punishment.

Lawmakers earlier this session considered a bill to impose a moratorium on the death penalty pending a study of capital punishment, but the moratorium wording was dropped.

Skolnik also said it makes more sense to have executions in southern Nevada than at the Ely State Prison since it's easier to move one condemned convict from there to the new execution location than to bring official witnesses, media, family members of victims and others to Ely.

Prison officials have been trying for several years to replace the old death chamber, located in a crowded corner at NSP, and each time they try the price goes up.

In 2003, for example, there was a plan to spend $237,000 to build a new execution area at NSP, and that was reduced to about $75,000 or even less by using inmate labor. But that proposal went nowhere.

This time, the execution facility that's part of the $62 million project being reviewed by lawmakers has a base construction cost of $1.7 million. There are additional costs for design work, security fencing and other improvements needed for both the execution building and the medical center.

Earlier coverage of Nevada's execution chamber is here.

Colorado

The Grand Junction Free Press columnist Jim Spehar writes, "'Pro-life' (but not all lives)."

Colorado lawmakers have passed that troublesome state budget after much cussing and discussing. Now on to the more divisive stuff.

Like the 33-32 vote in the Colorado House of Representatives earlier this week to eliminate the death penalty. The drama of that close vote, which sends the bill to the Colorado Senate for another round of debate, played out for an extra minute or so. While there were really 32 other deciding votes, all eyes were on Rep. Ed Vigil, D-Fort Garland, until he finally broke the tie as colleagues waited silently.

Still unclear is what state senators will do. Only one Republican (that was maverick Don Marostica, not Laura Bradford or Steve King) joined all but six House Democrats in voting for repeal. If the GOP musters up that kind of party line stance in the Senate and there are a few “no” votes from Democrats, the legislation dies. Even if it passes, Governor Bill Ritter, a former Denver district attorney, hasn’t said what he’ll do if the legislation reaches his desk for signature.

Leave it to Marostica, a Joint Budget Committee member who consistently angers fellow GOP lawmakers and recently described most of them as “lemmings” following the conservative leanings of our own Sen. Josh Penry, to summon up a thought-provoking reason for his vote.

“I’m pro-life, and consequently I believe in the sanctity of all human life, and I mean all,” Marostica said. “So that’s why I voted for it.”

The death penalty bill is one of those pieces of legislation that invites political posturing. Right up front are the prosecutors, most of whom seem inclined to believe that their futures depend on appearing to be the toughest person ever to walk into a courtroom. That testosterone-laden attitude appears to grow exponentially with tenure in office.

Unlike Marostica, most “pro-life” politicians turn into “pro some lives but not all” politicos when a bill like this shows up. As do some lawmakers on the other side of the philosophical divide, those who can’t abide the death penalty but wouldn’t be caught dead supporting other “pro-life” legislation.

Somewhere in the middle are those who wonder why Colorado, a state that has executed only one prisoner in more than three decades, needs the death penalty. We’re not like Texas, which leads the 35 states still putting people to death, having executed four times as many convicts as any other state since 1976. (The number, in case you’re wondering, is 436, about 40 percent of the total executions nationwide in the past 33 years.)

We are very much like 17 of the 35 states with a death penalty where executions since 1976 number in single digits. One of those states, New Mexico, voted this year to abolish the death penalty. Like Colorado and four other states, it had only one execution in the past 33 years. Two states with the death penalty on the books didn’t have a single execution during that time. Only Virginia, with 103 executions, joined Texas in triple digits.

Earlier coverage of the Colorado legislation is here.

New Hampshire

"Senate panel votes down death penalty repeal," is John Distaso's report for the Manchester Union Leader.

In a 3-2, party-line vote, the Senate Judiciary Committee yesterday recommended the full Senate kill a repeal of the New Hampshire's death penalty law and instead proposed studying the issue after the 2010 election.

An amendment to the House-passed legislation, offered by committee Chairwoman Sen. Deborah Reynolds, D-Plymouth, would eliminate all language that would repeal the death penalty statute and instead set up a 17-member commission to study all aspects of the death penalty.

Issues would include whether the death penalty should be expanded, possible alternatives to the death penalty "that would ensure public safety and address the interests of families of victims," and the costs of prosecuting and defending on appeal a capital murder case.

Her plan was backed by Democratic Sens. Bette Lasky of Nashua and Matthew Houde of Plainfield.

The Senate is expected to vote on the amendment next week. If it kills the amendment, it could revive the repeal, but that scenario is unlikely.

The two Republicans on the five-member panel wanted to recommend that the Senate kill the repeal bill entirely.

Sen. Bob Letourneau, R-Derry, said he would support a separate study bill that's been passed by the House, but wanted to kill the repeal bill "to send a message to law enforcement in this state that we support them." Republican Sheila Roberge of Bedford agreed.

Reynolds said that while she also supports law enforcement, "there is a significant community that adamantly opposes the death penalty." And in a statement issued after the vote, Reynolds said the amendment would allow "a careful look at this issue in a more deliberate manner than an up-or-down vote on repeal today.''

The Concord Monitor reports, "Setback for same-sex marriage," written by Lauren Dorgan.

Key Senate panels voted on four major social issues yesterday, splitting against gay marriage, supporting a mandatory seatbelt law and backing medicinal marijuana. Meanwhile, a Senate committee opted to recommend a commission to study the death penalty instead of taking an up-or-down vote on whether to recommend a bill to repeal the state's current law.

All four bills - along with the transgender rights bill - have already passed the House and now head to the whole Senate, which could take each of those bills up as early as next week. In the meantime, those on the losing sides of the votes hope to convince senators that the committees made the wrong calls yesterday.

And:

The Senate Judiciary Committee voted to set up a commission to study the state's death penalty law, sidelining a vote on supporting the penalty itself. The commission amendment, written by Reynolds, replaced a bill that had called for repealing the state's death penalty law.

The commission plan passed with Democrats voting for it and Republicans against it. Letourneau said he supported a separate death-penalty commission bill but wanted to vote no on repeal in order to send a message to police officers.

Killing a police officer is one of the few crimes eligible for the death penalty in New Hampshire; last year, Michael Addison became the first person sentenced to die in a half century, for murdering Manchester police Officer Michael Briggs in 2006. Attorney General Kelly Ayotte had raised concerns over whether a death-penalty repeal would threaten the verdict in that case.

"I want to make sure that the police in our state understand that we support them in the streets and we care about their safety," Letourneau said.

But Reynolds, who said the death penalty had not been sufficiently studied in this state, said she thinks it's time to closely examine the state's law.

"I think that the public deserves to have the input of a serious study about the death penalty," Reynolds said.

Lynch has said he would veto any effort to repeal the state's death penalty.

 Earlier coverage from New Hampshire begins here.

New Claims in Bastrop Murder Appeal

That's the title of Steven Kreytak's report in today's Austin American-Statesman.  It's subtitled, "Reed's lawyers cite more sexual misconduct complaints in suggesting that former police officer Fennell killed fiancee."

Newly released allegations of sexual misconduct against former Georgetown police Sgt. Jimmy Fennell emerged this week in the latest appeal filed by lawyers for death row inmate Rodney Reed.

Reed was convicted in the 1996 Bastrop County murder of Stacey Stites, who was Fennell's fiancée at the time. Reed has maintained his innocence, and his lawyers have suggested that Fennell committed the crime.

The appeal continues the bid by Reed's lawyers to reveal Fennell, who is serving 10 years in prison for kidnapping and improper sexual activity with a person in custody, as a sexual predator with a history of abusing women.

The Texas Court of Criminal Appeals has twice in recent months turned back bids by Reed for a new trial.

Filed Tuesday, the latest appeal includes fresh allegations from police reports, including that Fennell forced a woman he met during a traffic stop in July 2007 to have sex with him, that Fennell abused his wife and that he stalked a woman in Giddings in 1997.

"Jimmy Fennell has been a sexual predator for years," said Bryce Benjet, one of Reed's lawyers. "What we have been asking for is a chance for a jury to hear all of the facts in this case."

Fennell's criminal defense lawyer, Bob Phillips, called the additional accusations "questionable in their reliability."

The appeal also includes a vague account of a woman who said she may have seen Reed and Stites together before the killing, potentially significant evidence given Reed's assertion that his DNA was found on Stites' body because the two had a secret relationship.

Benjet said he has not had time to investigate the woman's account.

Earlier coverage is in the Rodney Reed category index.

Editorial Roundup

There are editorials today from Colorado and Kansas.  Let's start with, "Eliminating death penalty in Colorado the right move," from the Boulder Daily Camera.  It's signed by Erika Stutzman for the editorial board.

Count us among those applauding the Colorado House's close-as-a-shave vote to eliminate the death penalty here. The bill, which now goes to the state Senate, would take money used for death penalty cases and apply it toward solving cold cases.

There are more than 1,400 unsolved homicides since 1970 in Colorado. House Majority Leader Paul Weissmann, D-Louisville, pointed out that the last death-penalty case tried in Colorado cost $1.4 million to prosecute.

Here's what happened: Jose Luis Rubi-Nava, charged with the brutal killing of his girlfriend, pleaded guilty instead. That grand price tag didn't result in his death -- something that a whole lot of people still clamor for -- but instead with a sentence of life in prison without parole.

Non-capital cases cost about $70,000, Weissmann said. There are two men on Colorado's death row now. Imagine if the state were to spend $140,000 prosecuting those cases, rather than an estimated $2.8 million. Imagine if those millions, instead, were able to solve the murder of Boulder's Sid Wells, who at 22 was found killed execution-style on Aug. 1, 1983.

A Gallup poll in the fall showed that 64 percent of Americans favor the death penalty for someone convicted of murder, while just 30 percent oppose it. But death as a deterrent to hideous, heinous crimes doesn't seem to hold water in the United States, despite that widespread support of it.

Texas has 373 people on death row. It has put 423 convicts to death since 1974, when the death penalty was reinstated. The murder rate there is 5.9 per 100,000.

Colorado, which has executed just one person since 1975 when the death penalty was reinstated, has a murder rate of 3.3 per 100,000. So the "don't mess with Texas" adage as a deterrent isn't working as planned. North Dakota, with no death penalty, has a murder rate of 1.3 per 100,000. Iowa doesn't have the death penalty; the rate there is 1.8 per 100,000.

To be fair, New Hampshire does have the death penalty and its murder rate is about as low as it can go: 1 per 100,000. New Hampshire also hasn't put anyone to death since the death penalty was reinstated there.

One correction.  To date, Texas has actually executed 435.

In Kansas, today's Wichita Eagle has the editorial, "State's death penalty has yet to work."

The American people have determined that the good to be derived from capital punishment outweighs the risk of error," wrote Justice Antonin Scalia in 2006 in support of the U.S. Supreme Court decision upholding Kansas' death penalty.

Three years later, that good remains elusive in Kansas.

None of the 12 men sentenced to die under the 15-year-old law is near execution; two have been resentenced to life in prison, and another is awaiting resentencing.

Each step of each murderer's appeal -- a process that, to avert error, is highly complex by necessity -- seems to reveal another problem with the law.

The latest snag affected the murderer whose case the high court addressed: that of Michael Marsh, who was sentenced to death for the 1996 murders of a Wichita woman and her 19-month-old daughter. A 2008 state court ruling in another case effectively meant Sedgwick County prosecutors couldn't retry Marsh; under a plea bargain, he was resentenced this month to life in prison.

Lawyers predict more cases will be affected by the court's ruling, which said that prosecutors can file only a single capital murder charge in cases involving multiple murder victims. That will mean more delays, costs and uncertainty.

Meanwhile, a legislative effort led by state Sen. Carolyn McGinn, R-Sedgwick, to repeal the death penalty primarily to save money stopped short of a vote in the Kansas Senate this session and is slated for more study. Maybe next year the issue will get the full legislative re-examination it deserves -- not just because each death penalty case costs an average 70 percent more than each noncapital case, but because of the punishment's uneven application around the state and questionable value as a deterrent.

And:

Kansans and their state Legislature shouldn't go another year without fully examining whether such a punishment still has a place in Kansas.

Earlier coverage from Colorado and Kansas at the links.

Nebraska

Nebraska legislators are still waiting for LB 36, which authorizes lethal injection as the state's method of execution, and LB 306, which would abolish the death penalty, to reach the floor.  The Nebraska Legislature is due to adjourn on June 4, the 90th day of this year's session.

Former Nebraska State Senator Dianna Schimek writes the OpEd, "Debate on death penalty should not ignore the costs," for the Omaha World-Herald.  Here's an extended excerpt:

Talking about how much money you’ve got and how you spend your money isn’t usually considered polite. But with public money, it is considered necessary, and Nebraska needs to have that conversation when it comes to the current legislative debate over lethal injection.

For every bill that comes before the Legislature, the Fiscal Analyst’s Office researches how much it would cost taxpayers if the bill became law. That office produces a fiscal note that describes the financial impact so lawmakers can make an educated decision.

So imagine my surprise when I learned the fiscal note for Legislative Bill 36, which would make lethal injection our state’s method of execution, says there would be no cost to Nebraska to have lethal injection. The fiscal note for LB 306, which would replace the death penalty with life in prison without the possibility of parole, also says that bill would not cost or save Nebraska taxpayers a dime.

I had to ask myself: Could this be true?

After 20 years in the Legislature, I have heard a lot of testimony from experts on the cost of the death penalty. Though we’ve never had a true cost study in Nebraska, every other state with the death penalty has reported that a significant amount of money is spent just to have executions at all, by any method. If Nebraska reinstated the death penalty, we would need to spend money to install the new procedure.

As with any medical procedure, there is specific equipment that would need to be bought to administer the drugs that would kill the prisoner. In California, it cost the state more than $850,000 to retrofit its execution chamber to perform lethal injections.

We would need to either hire experts to train our Department of Corrections staff on how to conduct the execution, or pay to send our employees to another state for training.

And there would be legal challenges filed — almost every state with lethal injection is currently wading through many, expensive appeals trying to sort out whether death by chemicals is cruel and unusual.

The true costs are big and small. There is a big cost for the expert witnesses and extra law enforcement effort on a capital punishment case, but there is even a little cost each time there is an appeal to the 8th U.S. Circuit Court of Appeals and a member of the Nebraska Attorney General’s Office is flown to St. Louis and put up in a hotel.

And:

So why don’t the fiscal notes in Nebraska report this same sort of information? Perhaps the Fiscal Analyst’s Office believes there is not enough information here, since there has not been any comprehensive cost study in our state.

And that’s why a study commission on the death penalty is a good idea. The massive economic troubles facing all of us calls for caution, and lawmakers need accurate information before committing our state resources to a money pit.

Earlier coverage from Nebraska begins with this post.

News Coverage of the Colorado Vote

"Death penalty dealt blow," is John Ingold's report for the Denver Post.  The article also contains a listing of all House members' vote.

In the hushed state House chamber, all eyes Tuesday stared up at the vote board, which showed lawmakers deadlocked 32-32 on whether to repeal the death penalty in Colorado.

All but Rep. Edward Vigil's eyes, that is.

The Fort Garland Democrat sat at his desk with a hand held to his forehead, contemplating his suddenly crucial decision.

Heads swiveled in his direction. Whispers filled the silence. Seconds passed.

After nearly a minute, Vigil pushed a green button and, in doing so, pushed House Bill 1274 on to the state Senate in a dramatic 33-32 victory for death-penalty foes at the Capitol.

"Hopefully this will make us a better society in Colorado by not having a death penalty," Vigil said afterward, "though I have my reservations."

The bill would eliminate the death penalty as a sentencing option going forward and would use the projected cost savings to fund a cold-case unit in theColorado Bureau of Investigation.

House Majority Leader Paul Weissmann, a Louisville Democrat who is the bill's sponsor, said more than 1,000 homicides have gone unsolved in Colorado over the past 40 years, during which Colorado has executed only one convict. He said more than $800,000 in saved money would be left over every year after the state funds the cold-case unit.

"We ought to fund the unit we created two years ago to try to solve some of those unsolved crimes," Weissmann said.

Opponents said the bill takes away a necessary tool for law enforcement officers and prosecutors and said some crimes are so heinous that death is the only appropriate punishment.

Weissmann has carried a nearly identical bill for the past several years at the legislature, but this is as far as the bill has ever advanced in the process. Even if it were to get through the Senate, it is unclear what kind of reception it would receive from Gov. Bill Ritter, a Democrat who is a former prosecutor.

Peter Marcus writes, "Death penalty ban bill clears House," for the Denver Daily News.

House Bill 1274, sponsored by Rep. Paul Weissman, D-Louisville, would shift funds used to prosecute and maintain death penalty cases to the Colorado Bureau of Investigation for closing unsolved murder cases. Proponents believe the state would save close to $4 million by repealing the death penalty.

The legislation narrowly passed the House after a 33-32 vote. 

Rep. Ed Vigil, D-Fort Garland, cast the deciding vote after hesitating for almost a full minute before voting in favor of the bill.

Similar legislation was killed in 2007. The bill now heads to the Senate for debate.

Gov. Bill Ritter, a former prosecutor, has not yet taken a stand on the legislation, which makes it unclear whether he would sign the bill into law if it made its way to his desk.

Opposition to the bill comes mostly from Republicans, who convinced six Democrats to vote against the measure along with them. One Republican — Rep. Don Marostica, R-Loveland — voted for the bill. Marostica has voted outside his party line several times this year

The Boulder Daily Camera reports, "Mother of Boulder cold-case victim hopeful for new task force," written by Vanessa Miller.

When June Menger's phone rang Tuesday, the Longmont woman said she nearly cried.

For years, Menger has been pushing lawmakers to take money used to prosecute death-penalty cases and put it toward a cold-case team with the Colorado Bureau of Investigation. On Tuesday, by one vote, the state House approved the funding shift.

"This is huge," said a stunned Menger, whose son, Sid Wells, was killed execution-style nearly 26 years ago in Boulder.

The House voted 33-32 to approve the bill and send it to the state Senate. If the bill becomes law, it would use the projected cost savings from ending the death penalty to fund a state cold-case unit to deal with the growing backlog of about 1,430 unsolved homicides in Colorado since 1970.

"Now it has to go to the full senate," Menger said, "and that is going to be even tougher."

Menger -- who's been working since 2001 with state nonprofit organization Families of Homicide Victims and Missing Persons -- said she's planning to contact Senate president-elect Brandon Shaffer, D-Longmont, to discuss the bill.

"We are gonna have to get busy," said Menger, adding that she maintains hope that authorities one day will arrest and prosecute the person who killed her son in his fifth-floor condominium of Boulder's Spanish Towers on Aug. 1, 1983.

"House votes to repeal death penalty - Freshman Rep. Ed Vigil's crisis of conscience decides issue," is Joe Hanel's report for the Durango Herald.

The state House of Representatives moved to repeal the death penalty in a dramatic vote that came down to one man's very public crisis of conscience.

Rep. Paul Weissmann knew the vote would be close when he brought up his House Bill 1274, which ends Colorado's death penalty and devotes the financial savings to investigating unsolved murders.

Debate lasted only a few minutes Tuesday, apparently because most of the 65 representatives had made up their minds. All except Ed Vigil.

The freshman Democrat from Fort Garland sat still as the House's electronic board tallied the vote - a 32-32 tie.

Vigil, a former district attorney's investigator, thinks the death penalty is a useful tool. In a 2007 case, Jose Luis Rubi-Nava confessed to killing his girlfriend in Douglas County by dragging her behind his car. The threat of the death penalty secured Rubi-Nava's plea, Vigil said.

"As soon as the death penalty became part of the equation, he pled guilty and got a life sentence," he said.

But Vigil also was thinking about moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado.

Vigil bit his lip and ran a hand back through his hair. Other House members stood up and looked his way as a silent minute dragged by. At last, he reached across the desk and pushed the green button for "yes."

Earlier coverage of the Colorado legisltion begins here.

The Legal Workshop

Karen Sloan writes the web-only report, "Tired of mile-long law review articles festooned with footnotes? Here's a Web-based, user-friendly alternative," for National Law Journal.

Are you interested in legal issues but shudder at the thought of wading through massive law review articles riddled with footnotes?

A new Web site — www.legalworkshop.org — just might be the answer. The site aims to bring content from some of the most prestigious law reviews in the nation to a wider audience by offering condensed version of articles translated from scholarly language into plain English, and at no cost. Launched this week, the site includes user-friendly versions of articles that appear in seven different law reviews, including the Stanford Law Review, New York University Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Review, Northwestern Law Review and University of Chicago Law Review. Other top law schools also are seeking to participate in the project, according to organizers.

The site doesn't include the full-length articles that appear in the print versions of the seven law reviews, nor does it include the abstracts of those articles. Instead, the authors of the original articles write a shorter, more accessible version of their work to be posted on the site.

"Our goal was to provide free legal scholarship in a format accessible to laypersons," said New York University Law Review Managing Editor Matthew Lawrence, who helped launch legalworkshop.org.

The idea for the site came about in 2006, when student editors were looking for ways to make their law reviews resonate online, according to former Stanford Law Review President Edelheit Ross. At the time, editors at Stanford Law Review envisioned a Web magazine that included content from a number of top law reviews. Law review editors at Stanford and NYU then took on leading roles in creating what they called an "online legal scholarship magazine." Unlike print law reviews, readers can post comments on the Web site's articles.

One impetus for the project was the concern that law reviews have been losing their readership and their influence on the shaping of public policy. "The problem is that most law reviews make little effort to reach nonacademic audiences," said Stanford Law student Michael Montaño, who led the development of the site. "And because they still effectively help professors gain tenure — 'publish or perish' is here to stay — there is little incentive to innovate. But as a profession we owe it to the public to produce work that is relevant to society as a whole."

I'm adding Legal Workshop to the Essential Law Blogs in the left-column.

Lawsuit Challenges Missouri Governor's Clemency Role

"Execution set for man convicted in 1994 killing of Good Samaritan," is Tony Rizzo's report in the Kansas City Star.

The Missouri Supreme Court on Monday set a May 20 execution date for a Kansas City-area man who was convicted of killing an Excelsior Springs businessman in 1994.

If the order is carried out, Dennis J. Skillicorn, 49, would be the first Missouri inmate executed since October 2005.

The order comes as Skillicorn and two other death-row inmates are pursuing legal action that questions Gov. Jay Nixon’s ability to fairly consider their clemency requests.

Their lawsuit, which was filed last week in federal court, alleges that Nixon’s involvement as state attorney general in their litigation creates a conflict of interest if he, as governor, were to deny their clemency requests.

If Nixon does not grant clemency, state law authorizes him to appoint an independent board to determine whether clemency is appropriate, according to the lawsuit.

Attorneys for Skillicorn, John Middleton and Russell Bucklew also allege that prison officials obstructed their efforts to gather information in the clemency process by withholding documents, prohibiting them from interviewing other inmates and ordering prison staff not to speak with them.

In a written statement issued Monday, Nixon did not address the allegations in the lawsuit but said, “I fully appreciate the gravity and finality of capital punishment.”

He added: “I will carefully review the record on this case and any petition for clemency submitted by Dennis Skillicorn.”

"Death row inmates continue fight to stay executions," by Ray Scherer  appears in today's St. Joseph News-Press.

John Middleton has joined other Missouri death row inmates in asking the state to stay executions.

The motion — filed late Monday by Jennifer Merrigan, an attorney for inmate Dennis Skillicorn — argues that Gov. Jay Nixon has a conflict of interest. It said Mr. Nixon should not decide the men’s clemency since, as attorney general, he was involved in preventing defense attorneys from accessing Missouri Department of Corrections staff witnesses.

Missouri Supreme Court spokeswoman Beth Riggert said there has been no ruling on the motion.

Ms. Merrigan filed the action on behalf of Mr. Skillicorn, whose execution is scheduled for May 20. Mr. Middleton, from Spickard, was convicted in the 1995 shooting deaths of Stacy Hodge, Randy Hamilton and Alfred Pinegar. The deaths were linked to Mr. Middleton’s methamphetamine operation.

Mr. Middleton is imprisoned at the Potosi Correctional Center. A co-defendant, Margaret Hodges, pleaded guilty in June 1998 to second-degree murder of the victims. She is incarcerated at the Chillicothe Correctional Center.

The motion said that inmates Mr. Skillicorn, Mr. Middleton and Russell Bucklew have begun a civil rights action in the U.S. District Court for the Western District of Missouri related to Mr. Nixon’s earlier involvement in their cases. Ms. Merrigan alleges a decision by the governor would potentially violate her client’s federal guarantee of due process of law.

“It is unreasonable to expect that he will look at them fairly, when to grant clemency would be to admit that he had advanced erroneous grounds for denying relief in one or more capital cases,” she said.

The motion asks the federal court to require Mr. Nixon to convene a board of inquiry to rule on the clemency case.

Later on, the motion alleges that the state has attempted to dissuade Mr. Middleton and the other inmates from seeking clemency.

“Plaintiff Middleton has suffered unduly harsh conditions of confinement at the hands of DOC employees designed to break his will and discourage him from pursuing clemency,” it said.

“Defendant Nixon decided long ago to deny mercy to plaintiff Middleton,” the motion said.

You can view the lawsuit, in Adobe .pdf format, here.

Federal Judge OKs Ohio Execution Method

That's the title of Alan Johnson's report in the Columbus Dispatch.  It's subtitled, "Prisoner didn't prove it is painful."

Ohio's lethal-injection system is flawed but not unconstitutional, a federal judge has ruled, clearing the way for at least one and possibly more executions.

U.S. District Judge Gregory Frost said yesterday that convicted killer Kenneth Biros had not sufficiently made his case that Ohio's three-drug execution process would cause extreme pain, rendering it cruel and unusual punishment and thus unconstitutional.

The ruling means prosecutors can seek a new execution date for Biros. Other Death Row inmates also joined Biros' case in hopes of obtaining stays of execution.

Biros, 50, was scheduled to be executed on Jan. 23, 2007, for the mutilation killing of 22-year-old Tami Engstrom near Warren in 1991. Based on an appeal by Biros' attorneys, Frost stopped the execution on Dec. 21, 2006.

Frost held a hearing in Columbus last month at which Ohio prisons chief Terry Collins, members of the state's execution team and medical experts testified.

Frost warned state officials that they shouldn't consider his ruling a complete victory.

"Ohio's method of execution by lethal injection is a flawed system," Frost said in his 159-page ruling. "The weaknesses that pervade this system are not so profound, however, that they ... present this court with a violation of the Eighth Amendment to the United States Constitution."

"Judge lifts Ohio execution delay," is the AP report via the Newark Advocate.

Ohio's execution process is a flawed system that raises troubling concerns, but those problems do not rise to the level of a constitutional violation, a federal judge ruled Tuesday.

The decision by U.S. District Court Judge Gregory Frost paves the way for the possible execution of a man who mutilated his victim and left her body parts in Ohio and Pennsylvania.

In a 159-page ruling, Frost said there are problems with the way Ohio executes inmates, both with written protocols and the training the state provides the execution team.

Frost also said it's possible further evidence could prove the process constitutes cruel and unusual punishment.

But he said condemned killer Kenneth Biros has failed for to demonstrate he would experience severe pain under the system.

With the decision, Frost found that Ohio's system meets the standards for a constitutional process laid out by the U.S. Supreme Court a year ago.

"Ohio's method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks," Frost wrote, "even if it appears unlikely that Biros will demonstrate that those risks rise to the level of violating the United States Constitution."

Biros plans an appeal, said his Cleveland attorney, John Parker. The Ohio Attorney General's office declined to comment.

You can view Judge Frost's order, in Adobe .pdf format, here.  Earlier coverage of lethal injection issues in Ohio is here; more related posts in StandDown's lethal injection category index.

More Coverage of Legal Ethicists 'Declaration' in Keller Case

"Ethics Experts Claim CCA Presiding Judge Sharon Keller Should Go," is Mary Alice Robbins' report for Texas Lawyer.

A group of 24 judicial ethics experts from around the nation write in a declaration received today by the State Commission on Judicial Conduct that Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, should be removed from the bench.

In their “Ethics Experts’ Declaration,” the authors — including University of Houston Law Center professor Robert Schuwerk, co-author of the handbook “Texas Lawyer and Judicial Ethics 2006-2007,” and Houston solo Steven Smoot, a member of the Association of Professional Responsibility Lawyers and the Texas Center for Legal Ethics and Responsibility — allege Keller violated judicial ethics under the Texas Code of Judicial Conduct, including her obligation to provide litigants due process of law. In the declaration, the experts allege Keller violated judicial ethics by deciding cases “despite her lack of impartiality and the appearance of impartiality, which required her to recuse herself.”

The experts based their opinion on Keller’s published statements that she is a “prosecution-oriented person” and her opinions in cases, according to the declaration. Chicago solo Robert P. Cummins, a former chairman of the Illinois Judicial Inquiry Board, sent the declaration to the State Commission on Judicial Conduct. Cummins says in an interview that if a judge commits himself or herself to holding a position, regardless of the facts in a case, that is a reason for recusal. “If I had a judge say to me, ‘Mr. Cummins, I am looking at this case from a prosecutorial view point,’ I’d say, ‘I’m in trouble,’ ” he says.

The experts also take issue with Keller’s financial reporting and her attempt to obtain money for her defense from the state of Texas, which they allege violate judicial canons.

“In her financial disclosure statements, Judge Keller repeatedly omitted reference to her ownership interest in several residential and commercial properties that could be valued close to $2,000,000,” the experts state in their declaration. In a footnote, the experts cite The Dallas Morning News’ March 30 article alleging that Keller failed to disclose $2 million in real estate assets on her campaign financial reports to the Texas Ethics Commission.

On Feb. 19, the judicial conduct commission issued its Notice of Formal Proceedings in In Re: Honorable Sharon Keller, alleging that Keller engaged in “willful and persistent” conduct in failing to follow the CCA’s execution-day procedures on Sept. 25, 2007, the day the state executed convicted killer Michael Richard. The commission alleges in its notice that Keller refused to keep the CCA open past 5 p.m. on the day of Richard’s execution so that his attorneys could file a motion for stay and writ of prohibition.

In the Chicago Law Bulletin, John Flynn Rooney writes, "Lawyer, law students here weigh in on Texas judge's disciplinary case."

A group of ethics experts, including a Chicago lawyer, is calling for the removal of a Texas criminal court judge accused of improperly cutting off appeals for a condemned inmate on the night of his execution.

Five Loyola University School of Law students also worked on the Ethics Experts' Declaration filed in the matter of Judge Sharon Keller, under the supervision of Robert P. Cummins, who teaches a professionalism class at
Loyola.

The students worked with Cummins on an initial draft of the declaration based upon their research efforts, which included looking into the underlying facts in the case, Cummins said Tuesday. The students also performed legal research and participated in conference calls with a number of judicial ethics experts, he added.

The students are Erica Greene, Elizabeth Cebula, Michael Baniak, Christopher Blum and Nicholas Morjal.

In February, the Texas Commission on Judicial Conduct filed a complaint against Keller, presiding judge of the Texas Court of Criminal Appeals, that could lead to her removal from office.

Convicted killer Michael Richard was put to death by lethal injection on Sept. 25, 2007, after Keller ordered a clerk to close the court's office promptly at 5 p.m. Lawyers for Richard had asked that the office stay open an extra 20 minutes to permit a late appeal.

''In brief, our opinion is that Judge Sharon Keller has violated judicial ethics under the Texas Code of Judicial Conduct, which includes her obligation to provide litigants due process of law,'' states the Ethics Experts' Declaration submitted by Cummins and 23 other experts in the field of judicial ethics and disciplinary enforcement. ''These violations are sufficiently serious to require that Judge Keller be removed from the bench, pursuant to the Texas Constitution.''

Cummins, a former chair of the Illinois Judicial Inquiry Board, and Monroe H. Freedman, a professor at Hofstra Law School, took the lead in drafting the declaration. The document was shipped to Texas on Monday evening, Cummins said.

Diane Jennings has updated her Dallas Morning News Crime blog post with, "Update: Lawyer responds to ethicists in Keller case."

Chip Babcock, attorney for Judge Sharon Keller said this afternoon he's surprised that a group of legal ethicists has called for the judge's removal from office in a declaration sent to the State Commission on Judicial Conduct.

"As ethicists I would have thought they would abide by the first rule of their profession which is to look at both sides of the story," he says. "And it appears from this document that they have only looked at the allegations of the Commission on Judicial Conduct and media reports but have ignored the rather detailed denials that Judge Keller made in response."

Keller is facing a hearing on charges of misconduct before the commission later this summer.

Babcock said he is so curious about the unusual statement he's called Mike Tigar at Duke, whose name is on the document, and is planning to call Robert Schuwerk at the University of Houston.

Earlier coverage begins with this post.

AEDPA & Troy Davis

Atlanta Progressive News has, "Analysis: Joe Biden to Blame for Troy Davis' Fate?"  It's written by Matthew Cardinale.

With the US Court of Appeals panel's split ruling putting Troy Davis again, for the fourth time, on track to be executed by the State of Georgia, the role of 1996 federal death penalty legislation championed by Vice President Joe Biden--then a US Senator from Delaware--comes to light.

Davis, whose case has drawn international attention, is on death row for the convicted murder of a Savannah police officer. Davis’s family and attorneys have produced affidavits from 7 out of 9 witnesses recanting their statements at trial, implicating another man as guilty, and alleging police coercion as the reason for why these witnesses testified against Davis in the first place.

However, court after court continues to refuse to hear from the witnesses.

The two judges making up the majority decision on the panel quote former US Sen. Biden, as well as US Sens. Dianne Feinstein (D-CA) and Edward Kennedy (D-MA) in their 50 page explanation.

"The vast majority of us... want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple," then-US Sen. Biden (D-DE) said, according to the 1995 Congressional Record.

"The proposal to limit inmates to one bite at the apple is sound in principle," US Sen. Kennedy had said.

The judges, in the recent decision against Davis, go on to write that the intent of US Congress is clear and unambiguous, and that they do not want to go against the wishes of Congress.

"A lot of Democrats particularly in the 90s were on the tough on crime bandwagon. It was to their advantage to tell the public we're tough on crime," Laura Moye, Southern Regional Deputy Director for Amnesty International USA, told Atlanta Progressive News.

Enacted in 1996, the Anti-Terrorism and Effective Death Penalty Act , among other things, placed limits on the grounds upon which someone on death row could request a new federal hearing.

The AEDPA "tightened these limits by requiring successive petitioners to show both cause — or diligence — as well as a fundamental miscarriage of justice — or actual innocence," the majority judges noted.

The Eleventh Circuit opinion is here

The article also has this:

Amnesty International and Georgians for Alternatives to the Death Penalty have set an emergency day of worldwide action for May 19, 2009, to include a demonstration at the Georgia Capitol.

Meanwhile, the federal appeals court issued a 30 day stay, which would be lifted on May 16, in which time Davis can appeal to the Supreme Court of the US.

Earlier coverage begins with this post.  More on AEDPA is in this Wikipedia entry.

Ethicists Weigh in on Judge Sharon Keller's Case

That's the title of Diane Jennings' latest post at the Dallas Morning News Crime blog.  LINK

Two dozen legal ethicists from across the country have called for Sharon Keller, presiding judge of the Texas Court of Criminal Appeals to be removed from office. Keller is facing a hearing on misconduct charges later this year for her actions in the death row case of Michael Richard.

The "declaration" says the ethicists are not "finders of fact" but that their opinion is Keller has "violated judicial ethics" because of her lack of impartiality and failure to recuse herself and her "dishonesty in her financial reporting and her dishonesty in her attempt to obtain money from the State of Texas."

The Dallas Morning News' Steve McGonigle reported last month that Keller failed to report millions of dollars in financial assets after telling the State Commission on Judicial Conduct that she deserved financial assistance to handle her case because it would be "financially ruinous" for her otherwise.

Robert Cummins, an Illinois trial lawyer and former chair of the Illinois Judicial Inquiry Board, said the declaration was not orchestrated by Keller's foes, but was sent out of concern for the legal profession.

"We're the only profession in the United States that's self regulated," he said. "We regulate ourselves. If we don't stand up and do the right thing when somebody's hiding the ball, then you know that's the invitation for some legislature to come in. And you know what a great job they do."

Scott Henson has more at Grits.

You can view the declaration, filed by attorney Cummins with the Texas Commission on Judicial Conduct, here.

Earlier coverage of the charges filed against CCA Presiding Judge Keller begin with this post.  The trial is set to begin August 17.  You can also view the State Commission on Judicial Conduct's original complaint, at the link.

Coming to the Supreme Court Next Term

"High court will jump back into prosecutorial immunity, speedy trial issues," is Marcia Coyle's report for the upcoming edition of National Law Journal.

The U.S. Supreme Court next term will jump back into questions surrounding prosecutorial immunity and speedy trial requirements in two cases, one involving prosecutors' immunity from suit for fabricating evidence in a case's investigative phase, and the other concerning whether pretrial motion preparation counts under the federal Speedy Trial Act.

In January, the justices ruled against a man, wrongfully incarcerated for 24 years, who brought a civil rights suit against the Los Angeles district attorney, charging that the prosecution violated its constitutional duty to communicate impeachment information because of the district attorney's failure adequately to train and supervise prosecutors.

The prosecutors, held the court, had absolute immunity. Van de Kamp v. Goldstein, No. 07-852.

The new case also involves civil rights suits by two black men — teenagers at the time — who were wrongfully convicted of the murder of a white police officer and who served 26 years in prison. The men charge that two Pottawattamie County, Iowa, prosecutors "through their patently unconstitutional and racially motivated conduct framed, arrested, prosecuted, and convicted" them.

The two prosecutors, Joseph Hrvol, and David Richter, are asking the justices to overturn a ruling by the 8th U.S. Circuit Court of Appeals holding that a prosecutor's procurement of false testimony in the investigative phase of a case — before charges have been filed — violates a defendant's constitutional substantive due process rights, and a prosecutor is not entitled to absolute or qualified immunity for those acts. Pottawattamie County, Iowa v. Harrington and McGhee, No. 08-1065.

And:

In March, the justices also examined the Speedy Trial Act, ruling against the criminal defendant in a case from Vermont raising questions about whether assigned counsel or the state should be held responsible for certain trial delays. Vermont v. Brillon, No. 08-88.

The latest case — Bloate v. U.S., No. 08-728 — asks whether time granted to prepare pretrial motions is excludable in calculating the 70 days from indictment or first appearance for bringing a defendant to trial.

Two federal circuits have said no; eight circuits have said yes, including the 8th in this case. The 8th Circuit's yes answer affirmed a district court's decision to deny a motion by Taylor Bloate to dismiss his indictment. He was later convicted of firearm and drug offenses and sentenced to 360 months in jail.

The circuit split focuses on a provision in the law that declares excludable "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion."

The Court completes this term's calendar of oral arguments on April 28.  The next term begins October 2009.

HB 1274 Passes Colorado House

The bill was approved on third reading and final passage by a vote of 33 yes - 32 no.  HB 1274 now goes to the Colorado Senate for consideration.  The bill repeals the state's death penalty and dedicates funding to solve cold cases.

Earlier coverage begins with this post.

At the Supreme Court

"High Court Turns Down Challenge to Jury's Use of Bible," is Michael Graczyk's AP report, via Law.com.

The U.S. Supreme Court on Monday turned away a challenge from a Texas death row inmate who claimed his constitutional rights were violated by jurors who consulted a Bible.

In the appeal, Khristian Oliver's defense said jurors reviewed a biblical passage stating that a murderer who used an iron object to kill "shall surely be put to death." Jurors were deciding whether to sentence Oliver to death for shooting and bludgeoning his victim with the barrel of a gun.

The Court previously has said jurors should base their verdicts only on evidence presented in the courtroom.

State and lower federal courts upheld Oliver's death sentence, despite testimony that some jurors in the Nacogdoches County case consulted the biblical passage.

The 5th U.S. Circuit Court of Appeals last year said jurors wrongly used the Bible but said there wasn't enough evidence to show they were prejudiced when they decided to send Oliver to death row in 1999.

Oliver's lawyers asked the Supreme Court to review the case, and the high court Monday refused.

"It's a big disappointment," attorney Winston Cochran said. "With a life at stake, I think they needed to be a little bit more open-minded."

Oliver, 31, from Waco, Texas, was condemned for the slaying of Joe Collins, 64, during a March 1998 break-in at Collins' rural East Texas home. Three of Oliver's companions received prison terms ranging from five to 99 years.

At issue was a passage in Chapter 35 of Numbers which, in the New American Standard Bible, reads: "But if he struck him down with an iron object, so that he died, he is a murderer; the murderer shall surely be put to death." Some translations refer to the weapon as an "iron rod."

Collins was shot and then struck with the barrel of a gun, which Cochran said could be likened to an iron rod.

Prosecutors had argued there never was an implication jurors voted based on Scripture or had any kind of religious discussion.

Colin Guy writes, "U.S. Supreme Court refuses case in which jurors consulted Bible before death
sentence returned," for today's Beaumont Enterprise.

The use of a Bible by jurors during deliberations in a death penalty case was improper, a Texas appellate court ruled last year, but is not reason enough for a new trial to be granted, a decision the U.S. Supreme Court declined to question Monday.

Jurors in Nacogdoches County sentenced Khristian Oliver to death for the 1998 murder of Joe Collins. Collins, according to court documents, caught Oliver in the act of burglarizing his home and opened fire on him with a rifle. Oliver shot the homeowner with a pistol, then seized Collins' rifle and beat him with it until he died.

Oliver appealed the jury's verdict after learning that some jurors had consulted their Bibles and discussed a passage from the book of Numbers that states that a man who fatally strikes another man with an iron rod is a murderer and shall be put to death.

The 5th Circuit Court of Appeals ruled last August that while jurors' use of the Bible amounted to an improper, external influence on the proceedings, Oliver did not adequately prove that the text influenced their decisions. The U.S. Supreme Court Monday declined to hear an additional appeal.

Earlier coverage of the case is here.

Colorado

The Colorado House is scheduled to go into session at 9:00 am (MDT), and HB 1274 is on the House Calendar for third reading and final approval.  It was originally scheduled for consideration yesterday, but held over due to prolonged debate on another bill.  If the HB 1274 gets final approval in the House today, it would then move to the Colorado Senate.

More on Troy Davis

Today's Fulton County Daily Report has, "Georgia Death Row Inmate Loses 11th Circuit Appeal.  It's written by Alyson Palmer.

A federal appeals court on Thursday ruled against death row inmate Troy Anthony Davis by a vote of 2-1.

Davis' claims of innocence have delayed his execution for the killing of a Savannah, Ga., police officer in 1989. Seven of the nine trial witnesses for the prosecution have recanted their testimony, according to Davis' lawyers, who also cite affidavits from other witnesses saying another prosecution witness, Sylvester Coles, has confessed to the crime.

Judges Joel F. Dubina and Stanley Marcus of the 11th U.S. Circuit Court of Appeals said in their opinion issued late Thursday afternoon that after "painstaking review" they concluded that Davis had "completely failed" to meet the procedural requirements for filing a second federal habeas petition.

They extended their stay of Davis' execution for 30 days, saying he still may take his case to the U.S. Supreme Court.

The third judge on the panel, Judge Rosemary Barkett, dissented. She said executing an innocent person violates the 8th Amendment ban on cruel and unusual punishment and the 14th Amendment's guarantee of due process of law.

Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, echoed Barkett's dissent in an e-mail.

"The judges have completely lost sight of justice," said Bright. "They are lost in a maze of procedural rules that obscure the truth instead of revealing it."

The unsigned majority opinion noted that Davis' lawyers conceded their client submitted to the federal district court almost all of the evidence supporting his innocence claim during the time his first federal habeas case was pending. Davis' lawyers argued that the evidence of innocence was used then for a different purpose -- to get around procedural rules so the court would consider Davis' other arguments, such as his contention that prosecutors had withheld exculpatory evidence. The lawyers said their client couldn't have brought a claim of actual innocence in federal court at that time because he hadn't exhausted all of his state remedies, including an extraordinary motion for a new trial or an application for clemency.

Dubina and Marcus found that argument unconvincing, saying Davis hadn't adequately explained why he hadn't exhausted those other options before filing his first federal petition.

The judges agreed there was one trial witness affidavit, the 2008 affidavit of Benjamin Gordon, that Davis couldn't have obtained sooner. But they said it wasn't enough, concluding that federal law requires an inmate asking to file a second petition show both evidence of innocence and some other constitutional violation. Moreover, the judges found that Gordon's affidavit is "murky" and doesn't negate all the other evidence the prosecution put forth at trial.

Dubina and Marcus also rejected the suggestion that they could overlook the procedural rules. Even if they could do that, they wrote, "Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today. Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult." They noted that one eyewitness who identified Davis as the shooter at trial, U.S. Air Force serviceman Steve Sanders, has not submitted a post-trial affidavit altering his account. The post-trial affidavits of some other trial witnesses are ambiguous, said the judges.

"When we view all of this evidence as a whole," wrote Dubina and Marcus, "we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail's murder."

Earlier coverage, with a link to the opinion, is here.  Amnesty International has more on Troy Davis' case at this link.

Cell Phones in the Prisons

"Bills allowing prisons to jam cell-phone signals draw debate, by Tricia Bishop appears in the Sunday issue of the Cleveland Plain Dealer.

When prosecutors revealed last month that a Baltimore man accused of using a contraband cell phone in jail to order the killing of a witness was again caught with an illegal phone behind bars, the judge's jaw dropped. He couldn't fathom how this kept happening. It's "amazing," said U.S. District Judge Richard D. Bennett.

But jail administrators will tell you it's not. Cell phones are smuggled into prisons in Maryland and around the world by visitors, corrupt guards and, in Brazil, carrier pigeons. They're thrown over barrier walls, carried in body cavities and delivered by UPS. Inmates use them to run drug operations, intimidate witnesses, plan escapes, harass victims' families and pass the time, calling girlfriends and grandmothers without fear of officers listening in. A single jail phone, passed from one inmate to another, can rack up thousands of calls per month.

Correctional officers in Maryland and elsewhere have boosted efforts to fight the proliferation, which has worsened as phones have cheapened. Maryland pioneered using K-9 dogs to sniff out the devices and recently toughened fines for those caught introducing contraband. But the dogs and officers can't keep up with the smugglers, and prosecuting them is often a low priority.

There is something that can kill the problem in an instant: signal-jamming technology. It crushes communication and makes the phones useless, proponents say.

"That would be the ultimate," said Gary Hornbaker, assistant commissioner of the Maryland Correctional Pre-Release System and head of all Baltimore-region Division of Correction facilities. "We wouldn't have to worry about [cell phones] at all. It would save time and money for all of us."

But that is not being used by anyone except a few federal agencies, because the Federal Communications Commission says such signal interference is banned under a 1934 law, enacted when cell phones weren't even a fantasy and land lines were in less than half the country's households. That means the president's security detail can jam signals, but jails can't.

Bills before Congress aim to make cell jamming legal in prisons, and they have a strong list of supporters, including the American Association of State Correctional Administrators and Gary D. Maynard, secretary of the Maryland Department of Public Safety and Correctional Services. He's on a list of potential witnesses for a bill hearing next month.

But the bills also have big foes, namely CTIA, the International Association for the Wireless Telecommunications Industry, a powerful lobbying group that frequently donates to political campaigns and represents every aspect of the multibillion-dollar wireless industry. CTIA worries that cell jamming could interfere with legitimate calls nearby and interrupt emergency communications. The National Emergency Number Association and the Association of Public-Safety Communications Officials expressed similar concerns.

The technology prevents a cell phone's signal from reaching out, so the phones can't make calls. Howard Melamed, chief executive of Florida-based CellAntenna Corp., which sells jamming technology abroad, says he can block a cell phone in the tiniest of areas, right down to the one in your pocket, without affecting anyone else. But CTIA isn't convinced.

"Radio signals don't neatly stop at the edge of a prison perimeter fence or right at a wall. That's physics," said Brian Josef, director of regulatory affairs for CTIA.

Bishop is a Baltimore Sun writer, and the Sun carried an earlier version of the report, "Cell phone problem in prisons target of legislation."

Jamming signals
Safe Prisons Communications Act of 2009

Bills in the U.S. House and Senate (HR 560 and SB 251 respectively) would amend the Communications Act of 1934 to authorize the director of the Federal Bureau of Prisons or a state governor to petition the FCC to allow wireless signal jamming within a correctional facility's boundaries, provided the device does not interfere with outside communications. A hearing on the bills is expected in May.

Texas has had its own problems with cell phones in prison, as noted in this post.

OpEd Roundup

In North Carolina, the Greensboro News-Record carries the OpEd, "It's time to stop executing people," by Tom Campbell, a former state treasurer.

The arguments for and against capital punishment have gone on long enough. Having once been a supporter of the death penalty, I now believe it is time to abolish this practice. The arguments in favor of abolishment begin with the current conflict and end with the Ten Commandments.

North Carolina hasn’t executed a prisoner since August 2006, because of a controversy raised by the N.C. Medical Board. State law requires that a licensed physician be present for executions, but the board threatened to punish any doctor who administered, supervised or even gave verbal instructions for lethal injections, citing the “do no harm” provision of the Hippocratic Oath as substantiation for its position.

Doctors en masse refused to participate, effectively instituting what the legislature had been unable to do, namely create a de facto moratorium on executions. Since that time, the legislature has either been unable or unwilling to pass laws that would clarify the issue, a stalemate that is unlikely to be resolved.

There are other reasons for abolishment.

And:

Maybe opponents of capital punishment knew they would eventually wear us down. Maybe not. But it is time to put our energies into resolving our financial crisis, our mental health mess and our school dropout rates, and to write the obituary for the death penalty.

Connecticut's Hartford Courant carries the OpEd, "State's Death Penalty Foes Are Wrong," by Assistant Attorney General Harry Weller.

Proponents of a bill to abolish the death penalty are using false arguments to support their case. It would be a disservice to the people of Connecticut, especially jurors and jurists who have imposed a death sentence and most assuredly the victims of these horrific crimes, for the General Assembly to pass this legislation based on erroneous opinions.

Connecticut's death penalty is not unworkable. The state has successfully prosecuted more than a dozen capital cases under the present and pre-1995 law, and those prisoners are now sitting on death row. In cases tried before a three-judge panel, jurists with years of experience have determined that the appropriate penalty for the crime and the defendant is death. In other cases, citizen juries, acting as the conscience of the community, have looked defendants in the eye and told them that their crime deserves a death sentence. Moreover, several of those verdicts, including those against Michael Ross, Robert Breton, Sedrick Cobb, Richard Reynolds and Daniel Webb, have been upheld on appeal.

And:

Finally, society is the vehicle for communal retribution. We ignore our civil compact when we forget that one purpose of the criminal justice system is to replace vigilantism with objective due process and the appropriate punishment.

We should not be ashamed to say that one of society's functions is to exact retribution because it is proper for society to do so.

There is earlier coverage from North Carolina and Connecticut at the links.

The Death Penalty in Pennsylvania

The Pittsburg Post-Gazette has two news articles on the state of capital punishment.  First, "States finding death penalty's costs prohibitive," by Daniel Malloy.

Costs of lengthy trials, repeated appeals and specialized housing add up, making it more difficult for states to pay for inmates who have been sentenced to death than to life in prison. As many states grapple with budget crises, lawmakers increasingly are scrutinizing the death penalty on fiscal, rather than philosophical, grounds.

Earlier this year, the New Mexico state Legislature passed a bill to abolish the death penalty and Maryland limited its application to cases in which prosecutors present DNA or biological evidence, a video of the crime or a confession.

Measures to abolish the penalty are pending in five other states, including Colorado, where the state House on Wednesday passed a bill to eliminate the death penalty and use some of the resulting savings to solve cold murder cases.

No such legislative effort is under way in Pennsylvania.

State Rep. Don Walko, D-North Side, chairman of the House judicial subcommittee on courts, said he would be open to asking the Pennsylvania Commission on Sentencing to study the death penalty's costs. But he said such a review would have to wait until after the commission finishes another study on mandatory minimum sentences, which is due in November.

Mr. Walko said he remains a supporter of the death penalty, but media reports about the costs "did pique my interest."

A study by The Urban Institute, a nonpartisan economic and social policy research organization, found that a death penalty case prosecuted in Maryland cost $1.9 million more than a homicide case resulting in life imprisonment.

The American Civil Liberties Union in Northern California estimated the figure at $1.1 million in that region. A study by the Kansas state Legislature found that trying a death penalty case, on average, costs $500,000 more than a similar case resulting in a life sentence in that state.

The article notes that Pennsylvania has carried out three executions since 1978.

Torsten Ove writes, "For those convicted, it's a long road to the death penalty." 

Allegheny County District Attorney Stephen A. Zappala Jr. has until June 1 to decide whether to seek the death penalty against the man accused of killing three police officers.

That's the date of Richard Poplawski's formal arraignment, when his lawyer needs to know the district attorney's intention.

In the meantime, dueling online petitions have emerged in the public debate over what should happen to Mr. Poplawski, 22, who is accused of killing Pittsburgh Officers Paul J. Sciullo II, Stephen J. Mayhle and Eric G. Kelly and wounding another during a shootout April 4 in Stanton Heights. And it's a mismatch.

As of yesterday, those asking the district attorney's office to seek the death penalty numbered more than 35,000.

Those asking for life in prison: 12.

But it probably won't make much difference what Mr. Zappala decides. Even if Mr. Poplawski ends up being convicted and sentenced to death, he's not likely to be executed for many years, if ever.

That's because the state, which hasn't executed anyone since Gary Heidnik in 1999, has what Gov. Ed Rendell has called a "de facto" moratorium on executions caused by endless appeals.

It's the same across the country. The average appeals process in capital cases is now 12.7 years, longer than it's ever been.

Pennsylvania has never executed anyone who had taken advantage of the full appeals process in both the state and federal court systems. The three prisoners executed here since the death penalty was reinstated in 1978 all waived their appeal rights.

So unless Mr. Poplawski does that, he will probably join the state's 228 death row inmates in a permanent state of limbo.

"This is not a problem that is slowly getting better," said Richard Dieter, executive director of the nonprofit Death Penalty Information Center. "I think it's a given that there won't be any quick resolution."

Exonerations, like those that led to a moratorium on executions in Illinois in 2000, have cast doubt on the entire system.

"The courts are proceeding more carefully with these cases," said Mr. Dieter.

The appeals process is especially lengthy because death row cases have two levels of judicial review. In Pennsylvania, an inmate's petition for a new trial is first heard by the state's appellate courts, up to the state Supreme Court.

An inmate who has exhausted those appeals has the option of repeating the process through a habeas corpus petition in the federal courts.

Each stage of the process can take years. With 3,300 inmates on death row in America -- nearly all of them filing appeals -- the courts are a bottleneck. State clemency hearings can add more time.

"Even in Texas, cases are taking 10 years," said Mr. Dieter. That state historically executes more prisoners than others.

The federal criminal justice system has its own death penalty, but that process is also tedious. The last federal prisoner executed was Louis Jones, put to death in 2003 for the murder of a military private kidnapped from an Air Force base in Texas.

Today's Pittsburg Tribune-Review has, "Killers languish on Pennsylvania death row as appeals drag on, stats show," by Bobby Kerlik.

Accused cop killer Richard Poplawski is more likely to die from cancer than lethal injection.

At least that's what statistics suggest.

Pennsylvania's death row holds 224 convicted killers, the fourth-most in the country. Pennsylvania has executed only three killers since the death penalty returned in 1978 and none in the past decade.

During that same period, 20 death row inmates have died of natural causes.

Gov. Ed Rendell said he would sign a death warrant "without a minute's thought" if Poplawski, 22, of Stanton Heights is sent to death row for killing three Pittsburgh police officers April 4 outside his home.

But prosecutors have failed to get death sentences in the past three trials involving the slayings of police officers in Western Pennsylvania.

"You have a stalemate. People want the death penalty but don't want to be like Texas," said Richard Dieter, executive director of the Death Penalty Information Center. "A lot of states don't seem to get anything from the death penalty but are not willing to get rid of it."

Rendell, a former Philadelphia district attorney, has signed all 85 death warrants that crossed his desk in the past six years. A new warrant is generated when a state appeals court upholds a death sentence, and the governor must sign it in 30 days.

That is happening less frequently. Former Govs. Tom Ridge and Mark Schweiker signed a combined 238 warrants during the eight years before Rendell took office.

"The law provides for an appeal process," said Rendell spokesman Michael Smith, who called the governor a strong proponent of the death penalty. "He's abiding by the system we have in place."

Ron Eisenberg, deputy district attorney in Philadelphia, blames a slowdown in the courts.

"Those appeals are just taking too long. Sometimes they last longer than 25 years," said Eisenberg, whose office prosecuted about half the killers on death row. "In state court, those rulings have been reasonably timely, but our cases seem to take quite a long time in federal court."

The KFC Case

AP's Michael Graczyk report, "Convicted killer in Texas KFC massacre denies role," via the Dallas Morning News.

About the only point of agreement between prosecutors and a man serving life in prison for one of the most notorious mass murders in Texas is that the case is still open after more than a quarter-century.

"There's more to this," convicted murderer Romeo Pinkerton says. "This case ain't over with."

A year and a half after taking a plea deal that sent him to prison for five life terms, Pinkerton insists he had no part in the deaths of five people abducted during a robbery of a Kentucky Fried Chicken restaurant in Kilgore and then shot execution-style along a remote oilfield road.

"The real killer is out there still walking around," Pinkerton told The Associated Press from the Robertson Unit of the Texas Department of Criminal Justice outside Abilene. "I'm innocent all day long in this case. I never took anybody's life.

"I think they stooped real low to get a conviction."

Tom Kelley, a spokesman for Texas Attorney General Greg Abbott, whose agency has led the investigation in recent years, said the KFC case "is open and ongoing" as authorities hunt for at least one other man to join Pinkerton and a cousin, Darnell Hartsfield, in prison for the slayings.

"Certainly we can not comment on specifics," Kelley said.

Pinkerton said he took the plea deal midway through his 2007 trial, where he faced a possible death sentence if convicted of five capital murder charges, because he felt his life was in jeopardy while he was locked up in the jail in Bowie County, where his trial was moved because of publicity closer to Kilgore.

"I wasn't going to take it, but people were trying to kill me," said Pinkerton, who turns 51 this month. "My attorneys weren't doing anything. They told me they were going to give me the death penalty unless I pleaded out."

On Sept. 23, 1983, four employees and a friend of one of them were reported missing at 11:30 p.m. — 90 minutes after closing time — from the KFC in Kilgore, about 115 miles southeast of Dallas. Cash receipts showed about $2,000 also was gone.

The following morning, an oilfield worker discovered their bodies along an oil lease road in Rusk County about 15 miles to the south.

Mary Tyler, 37, the KFC's assistant manager, and three employees, Opie Hughes, 39, Joey Johnson and David Maxwell, both 20, and Monte Landers, 19, a friend of Johnson and Maxwell, had all been shot in the head.

The homicide investigation languished for nearly two decades, becoming one of Texas' longest unsolved mass murder cases.

It finally turned a corner in 2001 when DNA from a blood spatter authorities said they recovered from a napkin at the restaurant was tied to Pinkerton, a convicted burglar who'd been to prison at least five times.

A similar blood spot on a box of cash register tapes was tied to his cousin, Hartsfield, who'd been locked up since 1995 on a 40-year sentence for delivery of a controlled substance and engaging in organized criminal activity.

In late 2005, Pinkerton and Hartsfield were indicted for the five killings. Both are from the nearby Tyler area.

An Update on Indigent Defense in Georgia

"‘Crisis’ in death-penalty trial system," is Bill Rankin's report in the Sunday edition of the Atlanta Journal-Constitution.

They involve some of Georgia’s most heinous slayings, with death-penalty defendants accused of massacres, child killings, crimes of unthinkable depravity.

Yet almost one in five of all pending capital cases statewide is stalled because there is no money to pay for the defense of the accused.

Judges and prosecutors are exasperated. Defense attorneys are filing contempt motions and asking to withdraw from their cases.

“It’s a constitutional crisis,” Forsyth Superior Court Judge Jeffrey Bagley said at a recent hearing for Frank Ortegon Jr., accused of a murderous rampage at a farmhouse three years ago.

Not only is a defendant’s right to a fair and speedy trial compromised, Bagley said, but the community isn’t getting resolution, either.

Bagley postponed motions hearings and expressed confidence the Legislature would provide the funds for Ortegon’s defense.

Similarly, in March, a Glynn County judge “reluctantly” delayed the capital trial for David Edenfield, accused of killing a 6-year-old boy two years ago.

Judge Stephen Scarlett said he expected funds would be available after the new fiscal year begins July 1.

“We can’t defend the case without any money,” said James Yancey, one of Edenfield’s lawyers. “The experts we need won’t work for free.”

In the General Assembly’s final days, it looked as if the money was on its way. The House put $1.1 million in the state Public Defender Standards Council’s budget for the capital cases. The Senate cut it out.

The money would have paid for cases defended by private lawyers who bill the state at $95 an hour. Most are multidefendant cases where state-salaried defenders cannot represent one person because of conflict-of-interest rules.

Lawmakers “went above and beyond” providing funds to the defender system at a time state agencies suffered deep budget cuts to offset declining tax revenue, Senate Appropriations Chairman Jack Hill (R-Reidsville) said last week. While funding for capital cases was cut, it was restored for other critical parts of the program, he said.

“There was no ax to grind at all,” Hill said. “This is a terrible budget time. Nobody was spared any pain.”

Glynn County District Attorney Stephen Kelley said prosecutors are eager to get their capital cases moving.

“If the state cannot fund them, certainly the Superior Court judges in this state have the inherent power to make sure justice moves,” he said. This means ordering fees to be paid, he said.

In April 2007, the nude bodies of two teenage girls were found behind a south Fulton County school. Prosecutors are seeking the death penalty against two men.

But the case of one defendant, William Felts, is stalled because of funding issues.

Akil Secret, one of Felts’ lawyers, said he may either file a motion to withdraw from the case or file contempt motions against the defender council.

“It’s only fair to Mr. Felts,” he said. “Right now, there’s just no way we can build a defense for him.”

The state defender system was established to replace a hodgepodge of county-run programs, many that provided uneven representation of the poor. But the state system has encountered numerous setbacks and been hit with several lawsuits because it has not had enough money to pay its bills.

Mack Crawford, head of the state council, is increasingly being called into court to explain.

Earlier coverage from Georgia is here.  It's a perfect time to note last week's report by the Constitution Project, Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel, noted in this post.

Today on 'Democracy Now'

"Gov. Richardson, Activists Honored in Rome After New Mexico Repeals Death Penalty," is the segment on Amy Goodman's show.  You can watch or listen now at the link; a transcript should be available later today.

New Mexico became the second state in the country to repeal the death penalty last month. After years of struggle by campaigners, the repeal was approved by the New Mexico Senate in February and the House in March. Governor Richardson and the state’s leading campaigners were honored at a ceremony at the Colosseum in Rome last week and met with the Pope. We speak with two anti-death penalty campaigners just back from Italy.

Earlier coverage from New Mexico begins here.

Colorado

"Death penalty repeal bill still close call in House, King says," is Gary Harmon's report from the Friday edition of the Grand Junction Sentinel. The bill would repeal the state's death penalty and direct money save to cold cases.

A final House vote on repealing the death penalty in Colorado will be close, and the measure might yet fail, said a death-penalty proponent.

The measure passed the House last week on second reading, but five Democrats voted against the measure.

That led state Rep. Steve King, R-Grand Junction, to speculate House Bill 1274 might not have the votes it will need on a roll-call vote.

King said he was considering speaking against the measure Monday. It’s unusual for legislators to speak before third-reading votes because the votes are usually considered to be decided at that point.

And:

Colorado has more than 1,400 cold cases. Legislative analysts said the bill could direct about $883,000 a year toward solving cold-case killings.

Earlier coverage of the Colorado House vote is here.  The Colorado House is scheduled to go into session shortly; HB 1274 is on today's House Calendar for third reading and final approval.  It would then move to the Colorado Senate.

Death Row Lawyers Get Paid While Messing Up

That's the title of a report by Lise Olsen in today's Houston Chronicle.  LINK

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys, a Chronicle records review shows.

Missing deadlines means their clients can be automatically denied constitutionally mandated reviews before their execution. Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.

He refused comment.

Godinich is not the only attorney to miss death row deadlines. A San Antonio lawyer failed to file four state appeals on time, according to opinions last year by the Texas Court of Criminal Appeals. A Fort Worth lawyer has missed both state and federal deadlines in at least five recent cases, though he sought and was granted more time to prepare on four of them, according to court records reviewed by the Chronicle.

The failure to file such appeals, called writs of habeas corpus, means death row inmates risk missing their last chance to submit new claims of innocence or evidence that could alter their conviction — or death sentence. State judges can be flexible, but federal judges follow tight and sometimes confusing deadlines.

Only one of three Texas lawyers who repeatedly missed such death row deadlines has faced fines or been forced to forgo fees by judges.

Suzanne Kramer, of San Antonio, was removed in October 2008 from three state appeals she failed to file on time and was fined $750 by the Texas Court of Criminal Appeals. She is handling a fourth case over protests.

“I know if this lawyer stays on my case I’ll definitely get executed,” death row inmate Juan Castillo wrote the Chronicle. “She’s refused to respond to any of my letters … she’s never come to see me to discuss my case (and) my writ was due Dec. 11, 2006 and she never filed it. ”

Related articles are in the habeas category index.

Clemcency Recommended in Oklahoma Death Case

"Parole board recommends clemency for Oklahoma man," is the AP report via the Tulsa World.

Gov. Brad Henry has not made a decision on a recommendation by the Oklahoma Pardon and Parole Board to grant clemency for a man scheduled to die next month for the killing of an 8-year-old boy, a spokesman said.

The parole board voted 3-2 during a meeting on Tuesday to recommend that Donald Lee Gilson, 48, be given clemency in the fatal beating of his girlfriend's son, Shane Coffman.

Unless Henry approves the recommendation, Gilson will die by lethal injection May 5 at the Oklahoma State Penitentiary in McAlester.

Paul Sund, a spokesman for the governor, said Henry will issue an execution stay for Gilson if he doesn't believe he can have his decision ready by May 5. Should Henry grant Gilson clemency, it means Gilson's death sentence would be commuted to life in prison without the possibility of parole, Sund said.

Among those asking him to reject the recommendation will be Attorney General Drew Edmondson.

And:

Gilson was convicted of first-degree murder in the killing and was sentenced to death. Shane's mother, Bertha Jean Coffman, pleaded guilty and was sentenced to life in prison without the possibility of parole by Cleveland County District Judge Tom Lucas.

Lucas spoke as a witness against Gilson's execution at the parole board hearing. He said the evidence did not justify the death penalty for Gilson, although Lucas sentenced Bertha Coffman to life without parole after examining the same evidence.

"It wasn't fair for Mr. Gilson to get a death penalty when she got life without parole," Lucas said. "From the evidence I heard, I thought probably she was at least as much responsible, if not more, than he was."

Lucas did not recommend clemency for Gilson, but said the evidence was not clear enough to determine who killed the child and therefore did not justify the death penalty.

The Norman Transcript has, "Clemency recommended for Gilson," by Meghan McCormick.

A Cleveland County death row inmate who is scheduled to die by lethal injection next month for killing an 8-year-old boy in 1995, might be reprieved from his sentence.

Emily Lang, spokesperson for Oklahoma Attorney General Drew Edmondson, said the Oklahoma Pardon and Parole board met Tuesday and recommended clemency for Donald Lee Gilson, 48, by a 3-2 vote.

Gilson was convicted and sentenced to death for the beating death of his girlfriend's son, Shane Coffman. Coffman's body was found in a freezer behind Gilson's trailer in Newalla Feb. 9, 1996.

Edmondson released a statement regarding the board's recommendation.

"This is one of the most horrendous crimes we have dealt with," Edmondson said. "We will be asking the governor not to follow the board's recommendation for clemency."

Lang said it is possible Gov. Brad Henry could either grant Gilson clemency or give him a 30-day execution stay while he makes a decision.

According to the attorney general's office, investigators believe Coffman died sometime around Aug. 17, 1995. A medical examiner's report revealed Coffman suffered acute fractures to his left jaw and right cheek in addition to a cracked upper incisor and fractures of the left collarbone, several ribs, a shoulder, a leg and his spine.

The Oklahoma Court of Criminal Appeals set a May 5 execution date for Gilson in February, according to the attorney general's office. Edmondson asked the court to set the execution date after the U.S. Supreme Court denied Gilson's final appeal Feb. 23.

And, this excerpt refers to the governor's spokesman, Paul Sund:

Sund said the governor will issue an execution stay for Gilson if Henry doesn't believe he can have his decision ready by May 5.

Should Henry grant Gilson clemency, it means Gilson's death sentence would be commuted to life without the possibility of parole, Sund said.

"We've had five recommendations for clemency during the Henry administration, and he has only approved two of those," Sund said.

Related articles are in StandDown's clemency index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  Oklahoma's reforms were cited in that report as one state where officials appear to be actively examining clemency.

Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel

That's the title of a new report by the Constitution Project.  You can view the full report, here.

Marcia Coyle writes a web-special report for National Law Journal, "Study urges overwhelmed attorneys for the indigent to reject new cases ."  Here's an extended excerpt:

Many studies have documented nationwide problems with indigent criminal defense, but a new study, saying reforms are more urgent than ever, recommends that defenders reject new cases when faced with excessive caseloads; lawsuits seeking systemic reforms should be filed when other options fail, and appellate advocates and others should press the courts for a new test for determining ineffective assistance of counsel.

The Constitution Project's National Right to Counsel Committee, formed in 2004, recently released its examination of whether criminal defendants and juveniles charged with delinquency receive adequate legal representation when they can't afford to hire lawyers — and its recommendations for achieving lasting reforms.

The committee, whose members share judicial, prosecution, defense, academic, law enforcement, policymaking and victim experiences, reported that although there has been considerable progress since the U.S. Supreme Court's landmark right-to-counsel ruling, Gideon v. Wainwright in 1963, the evidence is "overwhelming" that jurisdictions that have done reasonably well in the indigent defense area are in a distinct minority.

"In most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources," the report states.

Among its recommendations for systemic reforms, the committee called for the following:

• Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.

• Prosecutors should adopt open-file discovery policies in order to promote the fair administration of criminal and juvenile justice.

• When indigent defense systems require defense attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.

• The Supreme Court's Strickland two-pronged test for determining ineffective assistance of counsel should be replaced by a straightforward test: Has the accused received "competent" and "diligent" representation, as required by the rules of professional conduct adopted by the legal profession? Lawyers who provide representation in appellate and post-conviction cases and organizations that advocate as amicus curiae should urge the Supreme Court and state supreme courts to adopt a new test.

• The federal government should establish an independent, adequately funded National Center for Defense Services to assist and strengthen the ability of state governments to provide quality legal representation.

• Federal financial assistance through grants or other programs as provided in support of state and local prosecutors should also be provided in support of indigent defense, and the level of federal funding for prosecution and defense should be substantially equal.

• States should establish a statewide, independent, nonpartisan agency headed by a board or commission responsible for all components of indigent defense services. The board or commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel.

StandDown's indigent defense index is here.

A Return to the Troy Davis Case in Georgia

This afternoon, a three judge panel of the U.S. Court of Appeals for the Eleventh Circuit rejected an appeal by Troy Davis, in a controversial Georgia case.  The opinion is here.

Bill Rankin writes, "Federal court rejects Troy Davis' appeal," for the Atlanta Journal-Constitution.

The federal appeals court in Atlanta on Thursday rejected death-row inmate Troy Anthony Davis’ bid for a new trial on claims he did not kill a Savannah police officer in 1989.

In a 2-1 opinion, the 11th U.S. Circuit Court of Appeals ruled that Davis could not establish by clear and convincing evidence a jury would not have found him guilty.

Davis’ innocence claims have attracted international attention. They rely largely on the recantations of key prosecution witnesses who testified at trial and on statements by others who say another man told them he was the actual killer.

In October, the 11th Circuit granted Davis a stay three days before he was to be put to death by lethal injection. It marked the third time Davis’ life was spared before his scheduled execution.

On Thursday, the two-judge majority noted that state courts and the Georgia Board of Pardons and Paroles had exhaustively reviewed Davis’ claims and rejected them.

Judges Joel Dubina and Stanley Marcus said they agreed with those conclusions. “Davis has not presented us with a showing of innocence so compelling that we would be obligated to act today,” they wrote.

The judges said they view the recantations with skepticism and, after reviewing Davis’ claims, “remain unpersuaded.”

Judge Rosemary Barkett dissented. “To execute Davis, in the face of a significant amount of proferred evidence that may establish his actual innocence, is unconscionable and unconstitutional,” she wrote.

The 11th Circuit kept in place its stay of execution for another 30 days so Davis can pursue his final appeal before the U.S. Supreme Court. The high court in October declined to consider a previous appeal.

Earlier coverage of the Troy Davis case beings here.

Alabama Senate Supports Executions

That's the title of Kristen Bost's article in the Auburn Plainsman.  LINK

For the third time in five years, an Alabama Senate committee voted in favor of a three-year moratorium on executions.

The Senate Judiciary Committee voted six to one last Wednesday for the bill proposed by Senator Hank Sanders, D-Selma. The proposed hiatus in executions has come as a response to statistics regarding the state’s possibly racist sentencing.

According to Project Hope to Abolish the Death Penalty, more blacks have been executed than whites since the death penalty was reinstated in 1976, and the black population on Alabama’s death row is approximately 49 percent compared to a total black population of about 26 percent.

“Historically, capital punishment in the U.S. has been disproportionately applied to economically and socially disadvantaged persons, which is why it tends to politicize as a racial issue,” said Kalynne Pudner, a professor of ethics.  “Its background supports the Alabama legislature’s proposed study; given the historical likelihood that it has indeed been applied discriminatorily, a moratorium is a reasonable way to halt the injustice.”  

During the proposed three-year hiatus, the state would make sure the death penalty is being administered impartially and fairly across the state.

Sanders’ bill now heads to the Senate, where comparable legislation failed in 2005 and 2006. Sanders also sponsored moratorium legislation in 2007 and 2008, but those bills died in the Judiciary Committee.

Sanders and several other groups opposing the death penalty assembled on the steps of the Statehouse in January to push the legislation, which they have been working to pass since 2001.

The death penalty, however, is a controversial issue nationwide and has become a growing concern in Alabama.

For instance, an Alabama provision allows a judge to impose a death sentence when a jury recommends a life sentence in prison without parole.

And:

In addition to approving Sanders’ moratorium bill, the committee also voted 5-3 for a companion bill that would bring Alabama’s death penalty law in line with a U.S. Supreme Court decision regarding minors. Both bills are headed to the Senate.

“The moratorium should end only when the public can be confident that there will not be significant arbitrariness in the administration of the death penalty.” Manig said.

Earlier coverage from Alabama begins here.

Earlier tonight, Alabama executed Jimmie Lee Dill, as noted in this AP report.  The Birmingham News has this report by Tom Gordon.  

It was the 22nd execution in the nation this year; the 1,158th since 1977.  It was the third execution in Alabama this year.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's executions.  It has executed 13 men so far in 2009; the state has executed 436 men and women since 1982.