The StandDown Texas Project

RJA Delayed

"Many of the state's DAs oppose Racial Justice Act," is the title of Scott Sexton's column in this morning's Winston-Salem Journal.

The name of the bill says it all: the Racial Justice Act.

Its aim is noble, and its goal appeals to the better instincts in us all. If we're going to insist on using the death penalty in North Carolina, it must be applied fairly and justly. And if race is truly a factor in its application, then race ought to be removed from the equation, right?

The Racial Justice Act -- sponsored by Reps. Earline Parmon and Larry Womble, both Democrats of Winston-Salem -- has passed the N.C. House of Representatives and is up for consideration in the Senate.

The bill's chances of passing the Senate, which postponed a scheduled vote on the measure yesterday, are pretty good. Other than mouth-breathing racists, who in their right mind would dare stand in opposition to a bill entitled "the Racial Justice Act?"

Most of the state's elected district attorneys -- including Tom Keith of Forsyth County and Garry Frank of District 22B, which includes Davidson and Davie counties -- that's who.

"The title, Racial Justice Act, is very clever," Keith said. "How do you stand in front of that train and say, ‘I'm against racial justice?'"

Like most elected officials, district attorneys are protective of their power. They view with great caution any attempts by the Legislature to water down, undermine or usurp their authority.

So it is that a good number of them, Keith and Frank included, have (and are) lobbying senators who represent portions of their districts.

Earlier coverage begins here.

Thursday

I'm traveling to Chicago today to attend the ABA Annual Meeting.  Posts will resume later today.

Love Lived on Death Row

That's the title of a new documentary by North Carolina filmmaker Linda Booker.  It's also the title of her guest post  on Michael Landauer's Dallas Morning News blog.  Here's the beginning of this compelling post:

If you had told me four years ago on the day I received my Certificate in Documentary Studies from Duke University that my first major project would feature the death penalty issue, I probably would have smiled politely and said, "I doubt that." It wasn't an issue I had extreme feelings about one way or the other. But several weeks later as I was checking the weather on our local TV station's website, a headline caught my eye: "Family Forgives Father For A Mother's Death." I immediately felt inexplicably compelled to make a documentary about this family's amazing story of forgiveness. What I didn't know then is that checking the weather that day would change my life and some of my beliefs as I went on to produce a feature length film about the Syriani sibling's story and their experience with North Carolina's system of justice and the media as they faced their father's impending execution.

Much more is at the Love Lived on Death Row website.  Related posts are in the documentary index.

The Illinois Moratorium

"State moratorium on executions - 10 years and counting," is the title of Robert Sanchez's report in the Daily Herald, Chicago's suburban paper.

More than a decade has passed since an execution occurred in Illinois. Experts say it could be even longer before the state puts its next condemned inmate to death - if it happens at all.

On March 16, 1999, Andrew Kokoraleis was put to death by lethal injection after he was prosecuted for his role in the slaying of nearly 20 women in the 1980s in Cook and DuPage counties.

Then in 2000, former Gov. George Ryan, citing the wrongful prosecution of Rolando Cruz for Jeanine Nicarico's murder, declared a statewide moratorium on executions. He cleared out Illinois' death row three years later when he commuted 167 death sentences to life terms.

At the time, a commission Ryan formed recommended about 85 changes to the justice system it said needed to be completed before the state should consider reinstating the death penalty.

Only about 20 of those suggestions have been adopted, according to Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

"The governor (Ryan) took the position that if there aren't enough assurances passed by the legislature, he's going to continue the moratorium," Dieter said. "Former Gov. Rod Blagojevich and (Gov. Pat) Quinn continued that because there hasn't been much more action. There is a sense that more needs to be done. It's sort of a stalemate."

Earlier this year, Quinn said he has no immediate plans to lift the moratorium on the death penalty. He said he wants adequate safeguards in place to ensure no innocent person is put to death.

Capital punishment is still state law in Illinois.  The report notes that 15 men have been sentenced to death in the state since then-Governor Ryan issued his commutations.

An earlier article on the state's moratorium is noted here. Related articles are in the moratorium index

In North Carolina

It appears that the Racial Justice Act (SB 461) is back on the North Carolina Senate calendar for today's session, which convenes at 3:00 pm (EDT.)   The Senate session will be webcast here.

As noted yesterday, senators passed an earlier version of the RJA.  Today, they can agree to changes made in the NC House, or send the measure to a conference committee of House and Senate members to work out differences between the two versions.

Texas Lyceum to Examine Criminal Justice and Death Penalty Issues

Today's Huntsville Item reports, "Texas Lyceum to meet at SHSU."

The Texas Lyceum, a statewide non-profit leadership group focused on identifying the next generation of Texas leaders and examining public policy affecting Texas and the U.S., will meet in the Criminal Justice Center’s courtroom at Sam Houston State University on Saturday to discuss key policy issues regarding crime and punishment in Texas.

The first panel meets at 8:30 a.m. to talk about current issues with the Texas Department of Criminal Justice.

The 29 year-old organization consists of Democrats, Republicans and Independents from private, public and non-profit arenas.

The Lyceum consists of 96 men and women from throughout the state who begin their six-year term while under the age of 46, and have demonstrated leadership in their community and profession, together with a commitment to Texas.

At SHSU, the Lyceum will host prominent federal, state and local criminal justice experts, including state Sen. John Whitmire (D-Houston), Chairman of the Texas Public Safety Commission Allan Polunksy, former U.S. Attorney Johnny Sutton, noted death penalty defense lawyer Dick Burr, and Gouri Bhat, a senior staff attorney with the ACLU’s National Prison Project.

“From the debate on the use of the death penalty to discussion on the merits of inmate rehabilitation versus punishment, the Texas Lyceum is once again proud to present a wide range of voices from the discourse on the Texas criminal justice system,” said Jay Rutherford, president of the Lyceum.

Senate Judiciary Committee Approves Sotomayor Nomination

The Senate Judiciary Committee has voted 13-6 to approve the nomination.  It now goes to the Senate floor where a vote is expected next week.  More at Politico.

Earlier coverage is here.

From Michele Deitch

Michele is the lead author of From Time Out to Hard Time: Young Children in the Adult Criminal Justice System.  

The report provides the first-ever comprehensive look at how the nation treats pre-adolescent children (primarily those age 12 and under) who commit serious crimes. The report analyzes the available data with regard to the transfer of young children to adult criminal court, documents the extremely harsh and tragic consequences that follow when young children go into the adult criminal justice system, profiles practices in states with particularly severe outcomes for these young children, looks at international practices, and offers policy recommendations.

The report, which I co-authored with three of my students, finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes.  In 22 states, plus the District of Columbia, children as young as 7 can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences, and placement in adult prisons.

This issue, of course, has gained national attention recently with the cases of the 8-year old in Arizona and the 11-year old in Pennsylvania, both charged with murder, and in the case of Christopher Pittman, who was unsuccessful in his efforts last year to get the United States Supreme Court to hear his challenge to his mandatory sentence of 30-years without possibility of parole for the killing of his grandparents when he was 12 years old.

The report shows that the practice of trying young children in adult court contradicts the consensus of the most up-to-date scientific research, and details the many ways in which the adult criminal justice system is a poor and dangerous fit for these young children.

Other key findings include:

·      Every year, nearly 80 children age 13 and younger are judicially transferred to adult court. Between 1985 and 2004, 703 children age 12 and under, and 961 children age 13 were judicially transferred to adult court. The total number of young children in adult criminal court actually is much higher than this, as the data does not include the number of children sent to the adult system through automatic transfer laws or laws allowing prosecutors to file cases directly in adult court. 

·      Many of these young children are being treated as adults for relatively minor offenses. There are almost as many youth treated as adults for property crimes as for crimes against persons. Determinations about when and whether a young child will be treated as an adult are marked by extreme arbitrariness, unpredictability and racial disparities.

·      Four states—Florida, Michigan, Pennsylvania, and South Carolina—stand out as providing the worst possible outcomes for pre-adolescent offenders, given the combination of transfer policies and adult sentencing laws and practices in those states.

·      On a single day in 2008, 7,703 children under age 18 were held in adult local jails and 3,650 in adult state prisons. In these adult facilities, the youth face vastly higher risks of physical and sexual assault and suicide than they would face in juvenile facilities. The youngest children are at particular risk.

·      The United States is severely out of step with international law and practice. Most countries—including those Western nations most similar to the United States, countries in the developing world, Islamic nations, and even countries often considered to be human rights violators—repudiate the practice of trying young children as adults and giving them long sentences.

The report calls on national and state policymakers to keep young children in the juvenile justice system, to disallow mandatory sentencing of young children in adult court, and to always provide parole opportunities for young children transferred to adult court.  We also urge that young children in the adult criminal justice system be housed in juvenile facilities, both while awaiting trial and after conviction.

Today's New York Times editorial, praising the report, is noted here.

North Carolina Senate Takes Up Racial Justice Act

The North Carolina Senate convenes at 3:00 pm (EDT) today and SB 461is on the agenda.  The Senate passed an earlier version of the legislation.  If the Senate concurs today with changes made in the NC House of Representatives, the measure would go to the governor.  If the Senate does not concur, a conference committee of House and Senate members would work out differences.  A conference committee report would then require approval by both bodies.

The Senate session will be webcast here.

Today's News & Observer carries the OpEd, "Race as a death penalty factor," by Matthew Robinson, an Appalachian State University prof and author of Death Nation: The Experts Explain Capital Punishment.

Several arguments are being made against the North Carolina Racial Justice Act, which is up for a state Senate vote. They include these: a law cannot assure racial justice; patterns of racial disparities are not useful for demonstrating evidence of racial discrimination in particular cases; other plausible explanations for racial disparities exist besides bias on the part of prosecutors, judges and juries; and there are other serious problems with the death penalty that this bill does not address.

A response to these claims is warranted. First, the law does not assure racial justice, but it can help bring it about. The law is one of the most powerful legitimate weapons we can use to rid our state criminal justice practice of racial bias. It does not address the roots of the problem -- stereotypes, fear and even racism -- but it is a start. And the bill provides a potential remedy for those who can conclusively demonstrate to a judge that race played a role in their case.

Second, patterns of racial disparities are relevant. In North Carolina, where killers of whites are far more likely to be sentenced to death than killers of blacks (especially when the offender is black), this pattern of racial disparities is made up of individual cases, cases like that of black man Robert Bacon who was sentenced to death by an all-white jury even as his white co-defendant did not receive a death sentence. In the absence of such individual cases, there would be no pattern of racial disparities.

And:

Here's the bottom line. North Carolina has a unique opportunity to become only the second state in the country to pass such a law. Further, we have the chance to correct an error made by the U.S. Supreme Court when it ruled against Warren McCleskey in 1987.

McCleskey showed that, in the state of Georgia, 11 percent of people charged with killing whites received the death penalty, but only 1 percent of those charged with killing blacks received the death penalty. Even after controlling for legally relevant variables, killers of whites were four times more likely to receive a death sentence than defendants charged with killing blacks. In interracial murders, the death penalty was assessed in 22 percent of the cases involving black defendants and white victims, versus only 3 percent of cases involving white defendants and black victims.

The main source of the disparities? Prosecutorial discretion. Prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, versus only 9 percent of cases involving white defendants and black defendants.

In the McCleskey case, the court ruled that statistics such as those offered by Warren McCleskey did not rise to a constitutional violation based on racial discrimination, and that the burden rests on the defendant to show purposeful discrimination by the prosecution or state. Thus, today in Georgia, nearly the exact disparities based on race are still found.

Two important studies illustrate similar racial disparities in North Carolina. The first (1993-1997) found that the "odds of receiving a death sentence rose by 3.5 times or more among those defendants ... who murdered white persons." The second (2000-2006) found that "blacks who kill whites were 14 times more likely to be sentenced to death than whites who kill blacks."

Robinson's book is noted here.

Today's Ashville Citizen-Times reports, "Families of murder victims support Racial Justice Act."  It's written by Jon Ostendorff.

Supporters of a law that would allow evidence of racism to be used in overturning death penalty convictions asked lawmakers on Monday to send the measure on to the governor.

The state Racial Justice Act has passed the House and is set for a Senate vote today.

The law would allow people convicted of capital murder to demonstrate that race played a significant role in their death sentences or in a prosecutor's decision to seek the death penalty.

Statistical evidence, such as the racial makeup of a jury, could be used in court to help prove bias. A judge could replace a death sentence with a sentence of life imprisonment without parole.

The bill has support from churches, the NAACP and regional politicians. Asheville Mayor Terry Bellamy has pledged her support, and Sen. Martin Nesbitt, D-Asheville, is a co-sponsor.

Family members of murder victims spoke out in support of the law Monday at the Haywood County Courthouse in Waynesville.

Asheville resident Megan Smith's father and stepmother were killed in Pennsylvania in 2001 by her adopted stepbrother and one of his friends, who is now on death row.

She opposes the death penalty.

“I know that the death penalty is a broken system,” she said. “The death penalty is not bringing justice to my family.”

Jean Parks, of Fletcher, also knows what it's like to lose a family member to violent crime. Her sister, Betsy Parks Rosenberg, was murdered in Raleigh in 1975. She was a student at UNC Asheville at the time.

Parks said if North Carolina is going to have capital punishment, the system needs to be fair.

Of the 163 inmates on the state's death row, more than half are African-American. Only 20 percent of the state's population is African-American.

The Murder Victims' Families for Reconciliation organized the event Monday on the courthouse steps. The group was in Waynesville trying to get its message to state lawmakers in the far western counties.

Earlier coverage of the RJA begins with this post.

12 and in Prison

That's the title of today's New York Times lead editorial.  LINK

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system.

And:

The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.

Congratulations to UT's Michele Deitch for this recognition of her outstanding work.  Related articles are in the juvenile index.

In Pennsylvania

Ron Todt of the Associated Press writes, "Natural causes biggest threat on Pa. death row," via the Philadelphia Inquirer.

Ten years ago, Gary Heidnik had two slices of cheese pizza and a couple of cups of black coffee, met with his daughter, and spent the rest of the day on his bed or pacing his cell. That night, he was given a lethal injection for imprisoning, torturing and murdering two women in the basement of his Philadelphia home.

In the decade since, Pennsylvania has executed no one. Its death row is the fourth-largest in the nation, yet the 218 men and five women are far more likely to die of natural causes than injected chemicals, gas, electricity or bullets.

Since the commonwealth reinstated the death penalty in 1978, three inmates have been executed; all had dropped their appeals. At least seven times that number have passed away, most of natural causes such as cancer or heart failure, while awaiting execution, according to an informal Corrections Department tally.

To find a Pennsylvania inmate unwillingly put to death, you have to go back almost half a century to the last use of the electric chair.

"I think it is indicative of a split , people want the death penalty but don't want a lot of executions," said Richard Dieter of the Washington-based Death Penalty Information Center.

It wasn't always so in Pennsylvania. The commonwealth has recorded more than a thousand executions in its history, starting with public hangings in the time of the early colonists. Hundreds were put to death in the electric chair during the first half of the 20th century.

And:

Defense attorneys say there's good reason for the modern reluctance, given recent high-profile exonerations of death row inmates. Last year, Nicholas Yarris, freed from Pennsylvania's death row in 2004 after 23 years behind bars on murder and rape convictions, reached a multimillion-dollar settlement with the county in which he was prosecuted.

"When you look at some of the people who have been exonerated, it's quite a frightening thing to know that we could have been executing an innocent person," said Charles Cunningham of the Defender Association of Philadelphia. "It's bad enough to put an innocent person in jail, but to take that person's life, it's horrifying."

A 2007 American Bar Association assessment noted such cases and chided the commonwealth for not taking steps to make erroneous convictions less likely, such as ordering preservation of biological evidence and recording interrogations. A state Supreme Court committee in 2003 called for a moratorium, saying minorities make up two-thirds of the inmates on death row.

New Jersey became the first state in four decades to abolish the death penalty in 2007, and New Mexico followed suit this year. Others are considering doing the same, citing not only concerns about possible execution of the innocent or bias in application, but also concerns about the cost of the system.

"You could be maintaining them in prison for less, but that's essentially what they are , they are in prison for life through an expensive process," Dieter said.

More from Pennsylvania here and here.

In Connecticut

The Hartford Courant has a lengthy report that begins with Alaine Griffin's "Cases Involving Possible Death Penalty A Long Process."

Nancy Filiault waited nearly four years for a Superior Court jury to convict Jonathan Mills of fatally stabbing her sister and her 6-year-old niece and 4-year-old nephew.

Every day after the December 2000 slayings in Guilford was one day too long from the trial that would possibly send Mills to the death chamber. The jury eventually spared his life.

"When you're waiting, it's so upsetting, so frustrating and frankly sometimes insulting because you can't always get answers to your questions," Filiault said. "It's almost like when you have questions, you feel like the criminal for asking them."

The four years between Mills' arrest and conviction is about the average time it takes to prosecute death penalty cases in Connecticut.

A Courant review of the cases of the 11 men on Connecticut's death row showed the average time from arrest to the day they were sentenced to die is 3.84 years.

Judge Richard A. Damiani referenced a similar statistic in court Tuesday while defending the length of time it's taking to bring Steven Hayes and Joshua Komisarjevsky to trial in the July 23, 2007, killings of Jennifer Hawke-Petit and her two daughters, 17-year-old Hayley and 11-year-old Michaela, during a robbery inside their Cheshire home.

Through a motion filed by the state victim advocate, Hawke-Petit's husband, Dr. William Petit, who was badly beaten during the robbery, and other family members questioned the pace of the legal process.

Damiani said the average length of time between the date of arrest and the start of the trial in capital cases is three years and four months. With jury selection in Hayes' case slated for January, the time in this case is two years and five months.

Defense attorneys also countered the Petit family's concerns by saying the cases could have already ended if prosecutors had accepted plea deals for Hayes and Komisarjevsky, who both face execution if convicted.

The Courant also has several sidebars, "Plea Deal For Komisarjevsky, Hayes Has No Support From Prosecutors, Petit," "Connecticut's Death Row Inmates," and, "Number Of Days From Arrest To Sentencing."  Coverage of this year's repeal vote by the Connecticut General Assembly and the governor's veto, here.

Next, Pennsylvania.

The State of Capital Punishment

A handful of weekend articles examine the current state of capital punishment in the nation.  First, a column by James Cummings.  He's a staff writer at Ohio's Dayton Daily News.  It's titled, "Death penalty is being phased out."  Here's an extended excerpt of this must-read:

There have been 35 people executed in the United States this year, the most recent being Daytonian Marvallous Keene, who died by lethal injection Tuesday, July 21, for the 1992 Christmas season killings of five people here.

In Western Europe, though, there hasn’t been an execution since 1977, according to Franklin Zimring in his 2003 book “The Contradictions of American Capital Punishment.”

While a public debate rages in America over whether capital punishment deters crime, there’s a debate within academic circles over why we stand alone among modern Western civilizations in continuing to execute.

Montgomery County Prosecutor Mathias Heck Jr., who has prosecuted several capital murder cases, said studies saying the death penalty deters crime seem to be balanced by just as many saying the opposite.

“It’s a really difficult question because we cannot know what’s in a perpetrator’s mind just before he steals something, or robs a bank or shoots somebody,” Heck said.

Heck said he knows that some criminals shy away from using guns in crimes because they know being convicted of using a gun automatically adds a few years to a prison sentence. “But whether you can take the logical step that the death penalty is a deterrent, that’s really hard to say,” he said.

So why do Americans continue to execute in the face of such ambiguity?

Zimring theorized that the persistence of capital punishment is related to the belief developed through the history of certain parts of the country that the community has the right to exact justice.

Zimring points out that the states that have carried out the most executions since 1976 tend to be the same states in the South and Southwest where lynchings were most common in the late 19th and early 20th centuries.

Researcher David Garland offers a different theory in his 2005 article “Capital Punishment and American Culture” in the journal Punishment and Society.

Garland believes the United States is following the same path as Western Europe when it comes to capital punishment; we’re just a step or two behind.

Garland said as societies modernize they tend to follow a single pattern. First the range of offenses possibly leading to execution reduces. Next execution by torture disappears followed by the disappearance of public executions and the development of swift, painless forms of death.

Eventually a few people begin speaking out publicly against the death penalty, and public sentiment against the practice grows.

In the next phase, legal safeguards against inappropriate execution grow. What followed in Europe in the latter 20th century were reductions in the use of capital punishment followed by legal abolition.

And:

A Step Back is planned as a recurring theme for this column in which issues in the news will be approached from a variety of social science perspectives. If you have a subject you’d like to see examined through the lens of history, psychology, anthropology, genetics, political science, communication theory or some other discipline, let me know. Also I welcome input from social scientists, ethicists, scholars and others with their own takes on the news.

The next two posts will link to news articles specific to Connecticut and Pennsylvania.

Death-Penalty Bias

That's the title of an editorial in the Sunday edition of North Carolina's Winston-Salem Journal.  LINK  Here's an extended excerpt:

The problems with the death penalty in this state have been underscored time and time again, including through three high-profile cases from other parts of North Carolina in which inmates who had been on death row were freed from prison. The penalty has been on an unofficial moratorium since 2006 as officials try to resolve questions regarding whether doctors should participate in executions. But with problems from past cases continuing to mount, a bill that addresses racial bias in death-penalty cases is timely.

The bill filed by Reps. Larry Womble and Earline Parmon of Forsyth County would allow judges to throw out the death penalty in a specific case if they found a trend indicating racial bias in other cases. Forsyth County District Attorney Tom Keith and other prosecutors have many objections to the bill, including that it amounts to a legislative end-run to abolish the death penalty, paints them as racist and is based on questionable statistics.

Every black person on death row convicted of killing a white person didn't land there because of racial bias. Even if this bill, the Racial Justice Act, were to pass, there's no guarantee defense attorneys would have much success with it. The argument behind the bill was rejected by the Supreme Court in 1987, as the Journal's James Romoser noted in a recent story. Only one other state, Kentucky, has a version of the Racial Justice Act.

But racial bias, just as misconduct by police, prosecutors and defense attorneys, should be explored more thoroughly. Every effort should be made to identify and eliminate every flaw in the system. Attorney General Roy Cooper, who hasn't had much to say about this bill, should be leading the charge to reform the death penalty in this state.

Defense attorneys nationwide have long raised issues of racial bias in death-penalty cases, especially in regard to jury selection. But this bill would ease the process in North Carolina cases, despite the contentions of Keith and other prosecutors that each case should be decided on its own facts.

"You can't just look at an individual case, because each capital case is a microcosm of the entire criminal justice system," said Mark Rabil, a Winston-Salem lawyer whose efforts finally won exoneration in 2004 for Darryl Hunt, a black man who spent more than 18 years in prison after being wrongly convicted of the murder of Deborah Sykes, who was white.

Proving racial bias, like any endeavor involving human motivations and feelings, is extremely difficult. Socioeconomics often enters the picture as well.

And:

The Racial Justice Act won't fix the myriad problems with the administration of capital punishment in North Carolina. But it would encourage the court system to tackle questions of bias in these cases and attempt to resolve, once and for all, whether there is a widespread pattern of bias. Before this state returns to executions, it should do whatever it can to answer all the questions tied to them.

Earlier coverage of the legislation begins here.

New Office to Handle Texas Capital Habeas Filings

"State to handle capital appeals," is the title of Lise Olsen's report in the San Antonio Express-News.  It appeared in the Sunday edition.

Texas, which executes more convicts than any state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lack a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.

And:

Ellis first introduced the bill in 2007 in response to reports about how death row inmates' lawyers had mismanaged appeals. But the bill was blocked then by last-minute lobbying from Harris County's former district attorney.

In the aftermath, appellate mistakes continued. The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients' rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo's lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.

Kramer has not responded to repeated requests for comment.

By the 2009 legislative session, remaining opposition to establishing a state capital defense office had virtually disappeared, Ellis said. The law was approved late in the session and signed by the governor last month.

“I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues, whether they're meritorious or not,” said Andrea Marsh, executive director of the Texas Fair Defense Project. “We saw too many cases where poor state habeas representation forced people to lose appeals.”

The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense. Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.

The new law was introduced as SB 1091 in the Texas Legislature.  Related articles are in the habeas category index.

More Commentary From Robert Baldwin

The Alabama physician writes, "Don't stand for injustice," for the Montgomery Advertiser.  Here's an excerpt:

In addition, Alabama is one of only three states that allow a judge to impose a death sentence over a jury recommendation of life without parole, and it is the only state in which there are no guidelines or restrictions, or even a requirement for an explanation, which is something we usually don't get.

Here again, Alabama is out of step with the vast majority of states, unless you believe, as the attorney general's office apparently does, that everyone else is out of step but us. As well, rarely do we find a judge overruling a death sentence in favor of life without parole.

These are just two of the many serious problems that the American Bar Association and other groups studying our system have identified and called for action. The Bar Association released its report on Oct. 29, 2007, concluding that the Alabama death penalty system is "seriously flawed," and in a 265-page report gives the details.

Nearly two years later, the attorney general says he has not studied the report. Does he really want to study it? If he did, he would have to address it. Having said in the past that folks in Alabama just aren't concerned about the death penalty, that office sees no need to review this evidence, and it is incriminating.

Our state suffers from actions and inactions such as these. When the chief law official of the state and his aides fail to pursue truth and seek only political gain, all of us in this state are victims of this, not to mention the millions of dollars of our tax money spent just so these officials will not appear soft on crime in the next election.

More from Balwin, here and at his blog Life and Death Matters.  He is the author of the recently published, Life and Death Matters: Seeking the Truth about Capital Punishment,.  More on the ABA Alabama assessment, here.

My Brother on Death Row

That's the title of an interview conducted by Alice Kim for In These Times.  It's subtitled, "Troy Davis' sister speaks out, as Davis awaits a Supreme Court decision."

Martina Correia, Davis’ sister, has led an international campaign to save her brother’s life and prove his innocence. South African Archbishop Desmond Tutu and former President Jimmy Carter have publicly expressed their support for Davis.

Even as Correia faces her own personal battle with breast cancer, she continues to fight to win justice for Davis.

You are calling on Chatham County District Attorney Larry Chisolm to reopen Troy’s case. What are the grounds for a new trial?

Some of the original trial witnesses have recanted, and nine new witnesses have said they either witnessed the murder or heard one of the original eyewitnesses confess to the murder. The prosecution’s whole case against Troy has fallen apart. They have one primary eyewitness left, Steve Sanders, who on the night of the crime couldn’t identify the shooter and two weeks later, two months later, couldn’t identify the shooter. But he came to court and identified Troy. There’s no blood, no physical evidence, no DNA. We can’t kill this man because everything we used to convict him doesn’t exist.

Why has Troy’s case garnered such widespread attention and support?

You have people on both sides of the death penalty debate on the same side for a change, saying that we cannot execute the innocent. These people are willing to put their name on a document and say we need to stop, rewind and give this man a new trial, because this is not a case about black and white. This is a case about the truth. It does not make any sense to deny Troy a hearing based on the evidence, when this state has got millions of dollars to try to kill Troy with no actual evidence.

Rep. Bob Barr (R-Ga.) says that the Anti-Terrorism and Effective Death Penalty Act of 1996, a piece of legislation he helped to write when he was in the House of Representatives, has been misinterpreted by the courts. What role did this act have on Troy’s case?

It says you have one year from conviction to bring forth information about your actual innocence.

Earlier coverage begins with this post.

Commentary and Coverage of Sentencing Project Report

The Sentencing Project report, "No Exit: The Expanding Use of Life Sentences In America,"was issued earlier this week, and noted here.

Today's Philadelphia Inquirer carries the editorial, "Inequality under law."  Here's an excerpt:

The arrest of Harvard professor Henry Louis Gates Jr. for breaking into his own house draws attention to the disparate treatment of black people in the criminal-justice system.

Gates' arrest may have been more a misunderstanding due to hot tempers than racism. The local police dropped the charges, but not before the acclaimed teacher underwent the indignity of being booked.

Gates aside, there is plenty of evidence that shows that the law deals more harshly with black defendants. African Americans make up 12 percent of the U.S. population but account for 38 percent of all felony convictions.

The imbalance stems from the history of America's black population, which remains disproportionately poor and poorly educated - vestiges of slavery, segregation, and racism.

Poverty breeds crime, and the poor get the worst legal representation, a huge factor in the percentage of blacks in prison and their sentences. Imagine former State Sen. Vince Fumo's sentence if he could afford only a public defender.

A new study by the Sentencing Project prison reform group (www.sentencingproject.org) points out America's virtual abandonment of rehabilitation as the goal of incarceration.

Almost 10 percent of the nation's prison population - 140,610 inmates - are serving life terms. And again, African Americans are disproportionately represented. They are 48 percent of all those serving life sentences, and 56 percent of the 41,095 sentenced to life without parole.

In both Pennsylvania and New Jersey, 63 percent of the prisoners serving life terms are black.

"Report wants life without parole abolished, in USA Today.

"Alabama leads nation in life sentences for felons, black youth," in the Birmingham News.

The Baton Rouge Advocate has, "More La. prisoners in for life."

"Report points to growing number of inmates in for life," in Florida's St.Petersburg Times.

The Judgment of Sharon Keller

That's the title of Michael Hall's latest Texas Monthly must-read, in the August issue.  LINK  Here's the opening:

The most infamous phone call in recent Texas history came on the afternoon of September 25, 2007, when, at 4:45, Ed Marty, the general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court’s presiding judge. Both were in Austin; he was at the courthouse and she had gone home earlier to meet a repairman. One hundred and forty miles away, at the Walls Unit, in Huntsville, Michael Richard (pronounced “Ree-shard”) sat in a cell adjacent to the execution chamber. He was scheduled to die that evening for a murder he’d committed in 1986. The CCA, the state’s highest criminal court and the final arbiter in all death penalty cases, was waiting for his last appeal.

But Marty had a question for Keller. It seemed that Richard’s attorneys were having some computer problems that were preventing them from getting their motion for a stay filed before the clerk’s office closed, at 5. They wanted to know if they could deliver it after-hours—5:15, 5:30 at the latest. Keller, who has been on the CCA since 1994 and the presiding judge since 2000, listened to Marty’s question. Under her leadership the court has been one of the more conservative in the country, developing a reputation, especially on the left, for rubber-stamping death sentences. Her reply would cement this: “We close at five.”

Keller’s statement was relayed to Richard’s attorneys, who were unable to meet the deadline. Just over three hours later, Richard was put to death. And that might have been the end of the matter, just another execution in Texas, number 405 since the reinstatement of capital punishment in 1982. But September 25 was no ordinary day. That morning the U.S. Supreme Court had decided to examine the constitutionality of the three-drug cocktail used in lethal injections, essentially putting a moratorium on executions that would last for six and a half months. Because of that decision, CCA judges and staff had braced themselves for an appeal from Richard’s attorneys, one they had been told was coming. Three judges were even waiting at the courthouse for it. One of them, Cheryl Johnson, was the designated duty judge, who, according to the court’s execution-day procedures, was in charge of the CCA’s response. But she was not informed of the phone call that afternoon between Keller and Marty.

In fact, Johnson found out about the conversation from a newspaper account four days later. She was furious, and her fellow judges were shocked. It wasn’t long before outraged lawyers and judges were signing petitions demanding that Keller be disciplined by the Commission on Judicial Conduct, a state watchdog group that has the authority to reprimand judges and recommend their removal from the bench. “I have never seen such a unanimous response from the legal profession,” said lawyer Broadus Spivey, a former president of the State Bar of Texas. The Dallas Morning News called Keller’s decision “a breathtakingly petty act [that] evinced a relish for death that makes the blood of decent people run cold.” Texas Monthly announced, “It is time for Sharon Keller to go.” It seemed that Keller, who had been so gung ho for so long about so many executions, had been caught closing the door on a dying man’s last request.

The CJC typically finds itself probing allegations of relatively minor infractions, such as sexual harassment or obscene language by justices of the peace. But in June 2008, it began to question a dozen of the players in the Richard drama, including Keller. In February of this year the CJC announced formal proceedings against her, making Keller the highest-ranking judge ever to be investigated by the group. The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

Earlier coverage begins here.  As I've noted in the past, Michael Hall and I are not related.

More News From the Texas Tribune

The Texas Tribune continues to make news in advance of its premiere this fall.  Ross Ramsey, editor of Texas Weekly has signed on as managing editor of the Tribune, which is acquiring the 25 year-old political tipsheet.

In a news release, Tribune CEO Evan Smith announced the move and additional hires:

Incoming Texas Tribune CEO Evan Smith announced today that the non-profit public media organization has acquired Texas Weekly, the premier newsletter for government and politics in Texas, and has hired longtime Texas Weekly editor and owner Ross Ramsey as its managing editor. Smith also formally announced the hiring of the first five reporters on the Tribune's newsroom team: Brandi Grissom, Elise Hu, Emily Ramshaw, Abby Rapoport, and Matt Stiles.

"I'm thrilled that we were able to attract journalists of such high caliber," says Smith, "as each one brings incredible experience and perspective on matters of statewide interest, along with a high level of energy and passion and ambition. I couldn't imagine a better foundation for the kind of work we intend to produce."

And:

Scheduled to launch in the fall of 2009, the Texas Tribune is a non-profit, nonpartisan public media organization whose mission is to promote civic engagement and discourse on the public policy, politics, government, and other matters of statewide interest. Based in the Texas capital, the Tribune will publish original news reporting online and host conferences and similar on-the-record, open-to-the-public events. Individual, corporate and foundation philanthropy will provide much of its operating budget; other revenue sources will include content syndication and multi-platform brand extensions.

Earlier coverage is here.

CCA Orders Hearing in Roderick Newton Case

"Stay of execution granted for man convicted in '99 Pleasant Grove murder," is the title of Jennifer Emily's report in today's Dallas Morning News.  You can view the CCA order here.

The Texas Court of Criminal Appeals on Wednesday granted a stay of execution for a man who was to die today and ordered a lower court to determine whether he deserves a new trial and whether he is mentally retarded.

Defense attorneys had argued that Roderick Newton, who was found guilty of kidnapping and murdering 20-year-old Jesus Montoya in a Pleasant Grove ATM robbery in 1999, did not get a fair trial because police failed to hand over evidence that would have questioned the credibility of a co-defendant who testified against him.

The Dallas County district attorney's office supported Newton's attorney's efforts to halt the execution after agreeing that Mesquite police withheld a written statement that contradicted the co-defendant's testimony.

District Attorney Craig Watkins said he believes Newton is guilty and he will prosecute him again if a new trial is granted.

And:

David Finn, one of Newton's attorneys, and prosecutor Mike Ware, who oversees the county's conviction integrity unit, say they believe police never gave defense attorneys or prosecutors copies of co-defendant Julian Williams' first statement to police.

In that statement, Williams denied any knowledge of the crime, according to a copy of the handwritten statement. He also said he would not lie.

Williams later made two substantially different statements and took the stand to testify that Newton shot Montoya as the man begged for his life.

Williams pleaded guilty after he testified and was sentenced to 10 years in prison.

Finn also said Mesquite Police Officer Michael Meek testified at trial that he took two statements from Williams – not three.

"It was not an oversight" that the first statement was never presented to the defense, he said. "It was not an accident. It was not a mistake. The detective should thank his lucky stars that the statute of limitations is only three years for aggravated perjury."

The Morning News also has Michael Graczyk's AP report, "Inmate set to die for '99 murder gets reprieve."

The appeals court returned Newton's case to his Dallas County trial court for a hearing on the evidence issue. The appeals court also agreed with Newton's lawyers that their claim Newton was mentally impaired and ineligible for execution should be reviewed.

The Dallas Observer has a brief post noting the stay of execution and heaing.  No date for the hearing has been set. 

Earlier coverage is here.  More on the 1963 Supreme Court case Brady v. Maryland, via FindLaw and Wikipedia.

The Bush Judicial Legacy, by the Numbers

That's the title of Tony Mauro's report at National Law Journal.  LINK  Here's an excerpt:

The latest issue of Judicature is out, and it offers the most comprehensive empirical look yet at the judicial legacy of former President George W. Bush. The always valuable magazine published by the American Judicature Society comes to the conclusion that "his judicial legacy may well be Bush's most enduring accomplishment," as one article puts it.

Through 59 confirmed appointments to appeals courts, 261 to the district courts and two to the Supreme Court, "They definitely achieved the goal of moving the federal bench in a conservative direction," says longtime Judicature editor David Richert.

University of Massachusetts political scientist Sheldon Goldman, who has been analyzing the demographics of judicial appointees for decades, was the leading author of a study in the magazine that concludes that Bush's legacy is that of "a highly professionally qualified diverse judiciary,' but it was achieved through a politicized and confrontational selection and confirmation process. "Rather than lower the partisan temperature, the president raised it," writes Goldman.

What about the decisions produced by Bush appointees? University of Houston political scientist Robert Carp has been measuring the leanings of federal judges for many years as well, and he returned to the task for Judicature. By tallying 2,680 decisions made by Bush-appointed district court judges, Carp concluded that "the Bush team is on the whole the most conservative on record."

Carp and his co-authors reached that view in part by quantifying the percentages of "liberal" decisions in criminal justice (siding with the defendant) and labor, economic regulation, and civil rights cases (siding with the employee, consumer or plaintiff.) By that measure ,only 32 percent of the Bush judges' rulings were liberal, compared to 35 percent for appointees of Ronald Reagan and the first President Bush, 43 percent for Clinton appointees and 50 percent for Carter judges.

There is more information at the Judicature home page.

In North Carolina

"Death penalty bill barely gets by committee," is the AP report via today's Winston-Salem Journal.

N.C. House legislators again have narrowly approved legislation designed to prevent a murder suspect or death-row prisoner with severe mental illness from facing capital punishment.

A House appropriations subcommittee voted 5-4 yesterday in favor of creating a process whereby the death penalty would be removed as a sentencing option for a murder defendant with a severe mental disability. The maximum penalty would be life in prison without parole.

The bill passed a judiciary committee last week and now heads to the House floor.

The American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness have all called for the exclusion of persons with a severe mental disability from capital punishment.  The American Bar Association has joined the mental health organizations in this call.

More on HB 137from the North Carolina General Assembly.  Earlier coverage of the legislation is here; related articles are in the mental illness category index.

Reevaluating Lineups

That's the title of a report issued last week by the Innocence Project.  It's subtitled, "Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification."  Here's an excerpt from the executive summary:

Over 175 people have been wrongfully convicted based, in part, on eyewitness misidentification and later proven innocent through DNA testing. The total number of wrongful convictions involving eyewitness misidentifications exceeds this figure, given the widespread use of eyewitness testimony and the limited number of cases in which DNA evidence is available for post-conviction testing.

Experts estimate that physical evidence that can be subjected to DNA testing exists in just 5-10% of all criminal cases.1 Even among that small fraction of cases, many will never have the benefit of DNA testing because the evidence has been lost or destroyed. DNA exonerations don’t just show a piece of the problem – they are a microcosm of the criminal justice system.

Decades of empirical, peer-reviewed social science research reaffirms what DNA exonerations have proven to be true: human memory is fallible. Memory is not fixed, it can be influenced and altered. After the crime and throughout the criminal investigation, the witness attempts to piece together what happened. His memory is evidence and must be handled as carefully as the crime scene itself to avoid forever altering it.

The Innocence Project identifies the common causes of wrongful convictions across DNA exoneration cases and has found eyewitness misidentification to be the leading cause.

The full report can be downloaded in Adobe .pdf fomat.  Related articles are in StandDown's eyewitness identification index.

The Sentencing Project's Report on Lifers in Prison

The Sentencing Project report, "No Exit: The Expanding Use of Life Sentences In America," states that 1 in 11 prisoners are now serving life sentences.  A summary of the report is here.  Here's an excerpt:

A new report released by The Sentencing Project finds a record 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the time of the crime. In addition, 29% of persons serving a life sentence (41,095) have no possibility of parole, and 1,755 were juveniles at the time of the crime. No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentence data documenting race, ethnicity and gender. The report's findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

Other findings in the report include:

* In five states - Alabama, California, Massachusetts, Nevada, and New York - at least 1 in 6 prisoners is serving a life sentence.

* Five states - California, Florida, Louisiana, Michigan, and Pennsylvania - each have more than 3,000 people serving life without parole.  Pennsylvania leads the nation with 345 juveniles serving sentences of life without parole.

* In six states - Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota - and the federal government, all life sentences are imposed without the possibility of parole.

* The dramatic growth in life sentences is not primarily a result of higher crime rates, but of policy changes that have imposed harsher punishments and restricted parole consideration.

The authors of the report, Ryan S. King, policy analyst and Ashley Nellis, Ph.D., research analyst of The Sentencing Project, state that persons serving life sentences "include those who present a serious threat to public safety, but also include those for whom the length of sentence is questionable." One such case documented is that of Ali Foroutan, currently serving a sentence of 25 years to life for possession of 0.03 grams of methamphetamine under California's "three strikes" law.
 
The Sentencing Project calls for the elimination of sentences of life without parole, and restoring discretion to parole boards to determine suitability for release. The report also recommends that individuals serving parole-eligible life sentences be properly prepared for reentry back into the community.

The New York Times has, "Study Finds Record Number of Inmates Serving Life Terms," focuses on California.  It's written by Solomon Moore. 

Mary Thompson, an inmate at the California Institution for Women here, was convicted of two felonies for a robbery spree in which she threatened victims with a knife. Her third felony under California’s three-strikes law was the theft of three tracksuits to pay for her crack cocaine habit in 1982.

Like one out of five prisoners in California, and nearly 10 percent of all inmates nationally in 2008, Ms. Thompson is serving a life sentence. She will be eligible for parole by 2020.

More prisoners today are serving life terms than ever before — 140,610 out of 2.3 million incarcerated nationally — under tough mandatory minimum-sentencing laws and the declining use of parole for eligible convicts, according to a report released Wednesday by The Sentencing Project, a corrections research and reform advocacy group. The report tracks the increase in life sentences from 1984, when the number of inmates serving life terms was 34,000.

Two-thirds of prisoners serving life sentences are Latino or black, the report found. In New York State, for example, 16.3 percent of prisoners serving life terms are white.

Although most people serving life terms were convicted of violent crimes, sentencing experts say there are many exceptions, like Norman Williams, 46, who served 13 years of a life sentence for stealing a floor jack out of a tow truck, a crime that was his third strike. He was released from Folsom State Prison in California in April after appealing his conviction on the grounds of insufficient counsel.

The rising number of inmates serving life terms is straining corrections budgets at a time when financially strapped states are struggling to cut costs. California’s prison system, the nation’s largest with 170,000 inmates, also had the highest number of prisoners with life sentences, 34,164, or triple the number in 1992, the report found.

Lewis Beale writes, "Rampant Growth of Life Without Parole," for Miller-McCune.

The Sentencing Project, a nonprofit that advocates for criminal justice reform, notes that one out of every 11 prisoners in state and federal lockups is serving a life sentence, and of those, nearly one-third, more than 41,000 convicts, have been sentenced to life without parole. The report notes that life without parole judgments have tripled since 1992, and nearly two-thirds of prisoners serving these sentences are ethnic and racial minorities.

As noted in my recent Miller-McCune.com piece — "Should Minors Ever Face Life Without Parole?" — the U.S. already has more than 1,700 juveniles serving life without parole. The U.S., according to The Sentencing Project report, "No Exit: The Expanding Use of Life Sentences In America," is the only country that hands out such judgments. The organization, as you might expect, opposes life without parole.

Major reasons for these harsh verdicts include "three strikes laws and other overly punitive sentences," says The Sentencing Project's Ashley Nellis. "California has 24 percent of all the nation's lifers, and they have this excessively punitive three strikes law in place. Also, the abandonment of parole has had a huge impact, as has the limiting of judicial discretion in sentencing and the expansion of prosecutorial discretion."

And:

There may be some light on the horizon. The constitutionality of life without parole punishments for juveniles is being challenged in two cases — Graham v. Florida and Sullivan v. Florida — that will be heard by the Supreme Court during its fall term.

The Maryland Daily Record's Brendan Kearney writes, "Report: Maryland tops list of black lifers.

Maryland has the highest proportion of blacks serving life sentences of any state in the country, according to a study released Wednesday by The Sentencing Project.

More than three quarters of the state’s “lifers” — 76.7 percent — are black, as compared to a national average of 48.3 percent, the Washington, D.C.-based research and advocacy group reports in “No Exit: The Expanding Use of Life Sentences in America.” And even more of Maryland’s juveniles serving life sentences are black — 84 percent — a fraction of a percentage point less than nationwide leader Alabama.

By contrast, less than 30 percent of the Maryland’s population was black in 2007, according to the U.S. Census Bureau.

According to The Sentencing Project, “No Exit,” based on information collected from state departments of correction in the second half of last year, is the first nationwide collection of life sentence data documenting race and gender. It spotlights the increasing imposition of life sentences, often without parole, within the context of the generally increasing incarceration rates that has made the U.S. the world leader in that category.

I'm sure we'll be seeing more coverage and commentary on the report tomorrow.

CNN Examines Troy Davis Case

It was featured last night on CNN's AC 360 program.  You can watch Gary Tuchman's report, "Death Row Mistake?"

Earlier coverage of the controversial case begins here.

The Legacy of the Brian Nichols Trial

Today's Atlanta Journal-Constitution carries the report, "Murderer Nichol’s tab: $3 million and growing," written by Rhonda Cook and Steve Visser.  Here's an extended excerpt:

It cost more than more $3 million to give courthouse killer Brian Nichols a fair trial. The state paid about $2.3 million of the cost, while Fulton County paid about $625,000, according to records released Tuesday.

Mike Mears, a veteran death penalty lawyer who initially oversaw payments to the defense, said costs should not have exceeded $500,000. He blamed them on Senior Superior Court Judge Hilton Fuller, who he said refused to rein in excessive defense spending in the trial’s early stages.

“It was a Cadillac defense,” said Mears, who was director of the Georgia Public Defender Standards Council at the time. “They had a judge sitting on the bench who I would describe as a ... dream judge. He was a judge who was willing to give them whatever they wanted without too many restrictions.”

Attempts to reach Fuller for comment were unsuccessful.

Lead defense lawyer Henderson Hill said Mears was not being realistic, given the need to investigate Nichols’ wide-ranging background and mental-health issues. He said Fuller approved funding requests because the judge recognized them as legitimate.

“There was nothing about the decisions that Judge Fuller made that was different from what the Constitution requires,” Hill said. “There is nothing about this case that I wouldn’t do when I represented somebody on a death penalty.”

Fuller, who came under fire from state legislators for the defense costs, never saw the case to trial. He stepped down in January 2008, after he was quoted about Nichols’ guilt in The New Yorker. Superior Court Judge James Bodiford finished the case.

Late Tuesday, Bodiford finished unsealing most of the Nichols’ trial records, including defense costs. But the records do not include costs of prosecution and other trial-related expenses borne by the county.

Mears said he resisted the defense team’s early demands for an almost open funding spigot. He feared it would crush the statewide indigent defense system.

The indigent defense system was only three months old when Nichols escaped on March 11, 2005, from the Fulton County Courthouse, where he was on trial for rape.

Late last year, the jury convicted Nichols for the murders of Judge Rowland Barnes, court stenographer Julie Ann Brandau, deputy Sgt. Hoyt Teasley and federal agent David Wilhelm. The jury rejected the death penalty, however, and Nichols was sentenced to life without parole.

Nichols’ trial is believed to be the most expensive death penalty case in Georgia history.

And:

Until Tuesday, the total cost of defending Nichols was only speculation because the two judges assigned to the case had prohibited the release of that information because it might reveal defense strategy.

Hill said the legal costs were driven up by battles with state officials who resisted paying them. The defense lawyers also geared up for trial three times because of delays over funding.

Earlier coverage of the case begins here; indigent defense issues in Georgia, here.  Related articles are in StandDown's indigent defense and cost indexes.

Ohio Execution Was 1,000th Lethal Injection in US

"Ohio killer's lethal injection marks 1,000th in US," is Matt Leingang's AP report via Google News.

A man who went on a 1992 Christmas holiday killing spree that left six people dead, including an 18-year-old mother gunned down at a pay phone, was executed Tuesday, the state's second execution in two weeks and the 1,000th lethal injection in the U.S. since the death penalty was reinstated in 1976.

Marvallous Keene, 36, who was convicted in five of the murders, chose not to file a late appeal over his death sentence.

He died by lethal injection at the Southern Ohio Correctional Facility in Lucasville — seven days after Ohio's last execution. It was the fastest turnaround since the state executed two inmates in six days in 2004.

The Ohio Supreme Court, in denying a request last month to delay Keene's execution, said it would schedule future executions at last three weeks apart so that public defenders will have more time to prepare clemency cases for inmates who wish to pursue it.

Ohio has one execution scheduled per month through February 2010

And:

According to the non-profit Death Penalty Information Center in Washington, D.C., Keene's was the 1,000th execution by lethal injection since the U.S. reinstated the death penalty in 1976.

The European Union presidency, currently held by Sweden, released a statement noting the number and calling on the U.S. to halt executions, pending the abolition of the death penalty.

"The European Union is opposed to the use of capital punishment in all cases and under all circumstances," the statement said. "We believe that the abolition of the death penalty is essential to protect human dignity, and to the progressive development of human rights."

The death penalty is abolished in the European Union, and the United Nations General Assembly has called upon all countries that use it to stop executions and end the practice.

Keene did not fight his execution. At a June 17 clemency hearing, he directed his attorneys not to present evidence on his behalf, saying he didn't want to cause additional pain to his family or to the victims' families.

Gov. Ted Strickland last week denied clemency for Keene, who didn't request it.

The report also notes that the state has executed 31 since 1999.

Roderick Newton's Execution Date Expected to Be Withdrawn

"Man convicted in Dallas County slaying expected to get reprieve from execution," is Michael Graczyk's AP report via the Fort Worth Star-Telegram.

A convicted killer scheduled for execution this week for an abduction and slaying a decade ago will likely get a reprieve now that Dallas County prosecutors have turned over misplaced evidence to defense attorneys.

Attorneys for Death Row inmate Roderick Newton said the first of three statements given to detectives by a co-defendant who testified against Newton was improperly withheld from his trial lawyers. It could have been used to discredit the co-defendant’s testimony, but defense attorneys didn’t know it existed.

The claim was among several appeals issues that Newton’s attorneys filed with the Texas Court of Criminal Appeals when they asked the court to block the lethal injection set for Thursday.

And:

Dallas County prosecutors found a questionnaire filled in by Williams — one of three statements he gave police in Mesquite — in a police file while reviewing the 10-year-old case within the past couple of weeks.

At Newton’s trial, his attorneys were aware of only two statements.

In the newly discovered questionnaire, Williams told police he knew nothing of the slaying and wasn’t involved, denials that trial attorneys could have used to cast doubts on his later testimony.

The district attorney’s office gave the statement to Newton’s appeals lawyers, who credited prosecutors for "remarkable candor" in making the disclosure.

A ruling from the court will make the reprieve formal. Kimberly Schaefer, an assistant district attorney who handles capital-case appeals in Dallas County, said it was nearly certain the execution would not take place.

"I’ve told the victim’s family I’m 99.99 percent sure the execution is not going forward," she said.

One of Newton’s lawyers, David Finn, said he expects the execution to be postponed indefinitely.

Robert Wilonsky has posted, "Very Brady: Inmate Scheduled for Execution May Have Had Rights Violated After All," at the Dallas Observer

According to the writ filed by attorneys David Finn and Clint Broden, Julian Williams -- who was with Newton when Montoya was killed -- met with Dallas County District Attorney's Office representatives only days ago. During that interview with Terri Moore and Mike Ware, Williams -- who testified at trial against Newton and received 10 years for his role in the crime -- told them he gave a statement to a Mesquite detective that was never admitted into evidence during the original trial in 2000. In that statement, included in today's filing, Williams acknowledged that it was he who pawned Montoya's necklace, not Newton.

Finn tells Unfair Park that Assistant District Attorney Kim Schaefer actually found the missing statement -- not in the District Attorney's files, but in the detective's. Included in today's filing is a July 10 e-mail from Moore to Finn and Broder in which she acknowledges, "We believe the defense never had the information. Therefore, there is a Brady violation." Unfair Park has been unsuccessful in reaching anyone in Craig Watkins' office this evening, but we will have something further in the morning.

"I gotta give Craig Watkins and Terri Moore credit," Finn says. "The way this Brady violation came about, they could have played hide the ball, and they didn't, which is a credit to the DA's office. They could have tried to bury this. ... I fully expect the Criminal Court of Appeals will postpone the execution, and we'll go back to court and fight it out."

The Observer had an earlier item, "Two Days Before a Dallas Man's Scheduled to Die, Lawyers Claim He's 'Mentally Retarded'," posted by Kimberly Thorpe.  Here's an excerpt:

But a massive petition filed moments ago in the Criminal District Court No. 2 of Dallas County and in the Court of Criminal Appeals of Texas in Austin insists Newton's should receive a stay of execution on the grounds that he's mentally retarded. The Supreme Court ruled in 2002 that the execution of the mentally retarded is a violation of the Eighth and Fourteenth Amendments, which include a prohibition against the use of "cruel and unusual punishment."

Three years later, a court assigned Newton's case to attorneys David Finn and Clint Broden, who insist that not only had the previous court-appointed attorney performed shoddy defense work, but that Newton had an IQ of 61. In an "intellectual assessment" report delivered to defense counsel last week, San Antonio neuropsychologist Gilbert Martinez wrote that "Mr. Newton's general cognitive ability is within the extremely low range of intellectual functioning"; Martinez also wrote that Newton was "occasionally childlike" during his examination.

More on the 1963 Supreme Court case Brady v. Maryland, via FindLaw.

The Texas Tribune

It started with the post at Romenesko, "Smith steps down as Texas Monthly editor-in-chief to become Texas Tribune CEO," Thursday afternoon.  It was Evan Smith's memo to the staff at Texas Monthly that he would not be moving with them to a new office, slated to open in a few weeks.

Anyway, that next challenge I alluded to ensures that I'll be seeing you around. It's no secret that I've been consulting with my friend of fifteen years, the venture capitalist John Thornton, on a project very close to his heart: a nonprofit, nonpartisan public media organization whose mission is to promote civic engagement and discourse on public policy, politics, government, and other matters of statewide interest. As John has been telling anyone who will listen, the Texas Tribune will publish original news reporting online (much like ProPublica) and put on conferences, conversation series, and other on-the-record, open-to-the-public events (much like the Aspen Institute). For nearly a year I've been helping John refine his concept for the Trib, and I've suggested various people he might hire. At some point along the way, like Dick Cheney leading the search for George Bush's vice president and concluding that he was the one he was looking for, I came to believe that perhaps I should join John in a more formal capacity, and he came to believe it too. So in mid-August, when all of you are moving bins and boxes into the University Park development, I'll be schlepping my accumulated possessions around the corner, into the Chase Bank building, to begin work the following week as the CEO of the Texas Tribune.

Evan is one of the sharpest people I know, and he talks to everyone.  I'm already looking forward to what he'll have to say at the new forum.

The Texas Tribune now has a website, and you can sign up for alerts.

According to Facebook and Twitter posts, Emily Ramshaw of the Dallas Morning News and KVUE's Elise Hu have both signed on to the Tribune with Smith.  The Tribune is set to premiere in the fall.  All the best.

Connecticut

Hartford Courant reporter Daniela Altimar has posted, "A renewed push to end the death penalty in Connecticut."

Emboldened by a series of victories in the legislature earlier this year, a coalition of groups is launching a new campaign against the death penalty in Connecticut.

The coalition, which includes religious organizations and civil rights groups, will kick off its campaign with a rally at the Capitol on Sept. 24.

"We are a diverse coalition of civic organizations, faith communities, and advocacy groups that have come together to achieve our shared goal of abolishing the death penalty in Connecticut,'' Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said in a statement heralding the effort. "We represent a variety of perspectives.  For some, the death penalty violates deeply held religious beliefs or personal moral codes.  Some see the practice of state-sponsored execution as a deprivation of human rights.  Others believe it cannot be justified as a public policy because it is costly, an ineffective deterrent, discriminatorily applied, and often puts victims' families through additional pain.   Whatever our point of view, we all agree that it clearly fails society."

The coalition includes the American Civil Liberties Union, the Connecticut Catholic Conference, the NAACP and the United Church of Christ.

Repeal legislation passed the House and Senate, but was vetoed by Governor Jodi Rell.  Coverage of the votes and veto begin with this post.

Sotomayor Responds to GOP Follow-up Questions

That's the title of a National Law Journal report by Tony Mauro.  LINK

Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee Monday that she has "no personal views about the death penalty that would interfere with my obligation to apply the law as a judge."

In written responses to questions following up on a range of issues raised at her confirmation hearing last week, Sotomayor also explained her decision to resign from the all-female Belizean Grove, a networking group of professional women, shortly before her confirmation hearing last week.

She said that because the club includes men in its activities and has not denied membership to a man seeking admission, she did not believe it engaged in "invidious discrimination on the basis of gender." But, she added, "because my membership raised concerns on the part of senators considering my nomination to the Supreme Court, I resigned from the organization."

The 49 pages of questions and answers represented the efforts by Republican senators to draw Sotomayor out about issues they had sought answers to last week.

Sen. Jeff Sessions (R-Ala.) asked several questions in writing on the nominee's views about use of foreign law in Supreme Court decision-making. She voiced opposition to such use during testimony, but Sessions confronted her with articles and speeches by Sotomayor expressing support. Sotomayor repeated her refrain that "American courts should not use foreign law in the sense of relying on decisions of foreign courts as binding or controlling precedent ... In some limited circumstances foreign courts can be a source of ideas, just as law review articles and treatises can be sources of ideas." She said that in her 17 years on the federal bench she had never "used or considered" foreign law in reaching a decision. 

You can view all the questions and answers here.  Here's one excerpt on the death penalty:

Q. As a Board Member for the Puerto Rican Legal Defense and Education Fund, you coauthored a task force position paper opposing the death penalty. This task force report ran through a number of reasons for opposing the death penalty, mentioning everything from the impact on the offender and his family, to world opinion, to Judeo-Christian values. The one thing it does not seem to mention or consider, however, is the victim and his or her family.
a. You signed this anti-death penalty report, which is unequivocal in its opposition to capital punishment. Does this memo reflect your personal opposition to the death penalty when you signed the report in 1981?
b. Do you personally believe that imposition of the death penalty for aggravated first-degree murder is sound policy?
c. Do you have any doubts about or personal opposition to the death penalty?

Response: The PRLDEF Task Force on the Bill to Restore the Death Penalty in New York State was asked to submit a memorandum considering what position the Fund should take on the restoration of the death penalty in New York State. The 1981 memorandum reflects the policy recommendation of the PRLDEF Task Force that the Fund oppose the restoration of the death penalty in New York State. It was not the purpose of the memorandum to reflect my personal views. Policy considerations about the imposition of the death penalty are determinations for each community and its elected representatives to make by enacting death penalty statutes. The role of a court is limited to reviewing those statutes in specific cases to determine if they are or can be applied in a constitutional manner. I have no personal views about the death penalty that would interfere with my obligation to apply the law as a judge.

Today's Washington Post Capitol Briefing notes, "Collins Adds Another GOP Vote for Sotomayor."  It's written by Ben Pershing.

Maine Sen.  Susan Collins announced Tuesday that she will support Sonia Sotomayor's nomination to the Supreme Court, making her the fourth Republican to line up behind President Obama's pick.

"Judge Sotomayor has impressive legal experience, has excelled throughout her life, and is a tremendously accomplished person," Collins said in a statement, adding that while she knows she won't agree with all of Sotomayor's decisions on the court, " I believe she will serve our country honorably and well on the Supreme Court."

With Sotomayor's confirmation all but assured, the administration is hoping to run up the score by attracting as many Republican votes as possible. Collins' decision was somewhat expected, given that she hails from the GOP's moderate wing and because fellow Maine Sen.  Olympia Snowe (R) is already backing Sotomayor. GOP Sens.  Richard Lugar (Ind.) and  Mel Martinez (Fla.) have also signaled their support for the first Hispanic Supreme Court nominee, while Senate Minority Leader  Mitch McConnell (R-Ky.) and Senate Republican Policy Chairman  John Thune (S.D.) plan to oppose her.

None of the seven Republicans on the Judiciary Committee has said how they plan to vote on the nominee. The panel is scheduled to vote on her nomination Tuesday, but Republicans plan to use their ability to postpone the roll call by a week. A vote by the full Senate is expected before the chamber goes into recess Aug. 7.

The Senate Judiciary Committee is scheduled to vote on the nomination on July 28.  Earlier coverage begins here.

Allan Butcher Retires as Magistrate; Will Continue Indigent Defense Research

"Respected magistrate hangs up his robes but will continue his research at UT-Arlington," is the title of Martha Deller's report in the Fort Worth Star-Telegram.

Allan Butcher was known as one of the top death-penalty attorneys in Texas — and an advocate for poor criminal defendants — when he became a magistrate quietly working away in the basement courtroom at the courthouse a decade ago.

His switch from writing appeals for Death Row inmates to simply approving pleas on routine legal matters may have bewildered others, but it made sense to Butcher, who said the job gave him time to continue his research and teaching.

"Most lawyers like the drama of the courtroom. I like the solitude of the library," Butcher said.

Butcher, however, hung up his robes Friday after changes in the schedule forced him to work five days a week, every week. That made it harder to continue his research, especially into the court’s indigent-defense system.

"When I took the job, we worked seven days on and had seven days off," Butcher said. "That gave me a large block of time every other week to devote to my research."

A five-member judicial committee has screened about 35 applicants for the magistrate’s job and picked six finalists, who were interviewed Friday. The county’s 19 criminal court judges will make the final selection this week.

By the time his successor takes the bench, Butcher plans to be back in his office at the University of Texas at Arlington, where he will continue researching the death penalty, indigency and judicial selection — issues that have become synonymous with his name.

And:

For the near future, Butcher will return to his research on indigent defense, which already has improved poor defendants’ access to attorneys throughout the state.

He’ll also continue trying to find ways to ensure that the death penalty is imposed in a fair and consistent way, although he no longer is sure that is possible.

"I’m not ready to retire," Butcher said.

Some of Butcher's scholarship is available here.

Senate Adds Death Penalty Amendment to Kill Hate Crimes Legislation

That's the title of a Monday afternoon post at CivilRights.org, the home of the Leadership Conference on Civil Rights, written by Tyler Lewis.  LINK

On Friday, the Senate passed the Matthew Shepard Hate Crimes Prevention Act as an amendment to the fiscal year 2010 Department of Defense authorization bill.  But today, the Senate passed an amendment to the Act, offered by Sen. Jeff Sessions, R. Ala., that would allow the death penalty to be applied in hate crimes cases under some circumstances. 

LCCR and other civil and human rights groups that are supporting the Act do not support the Sessions amendment.  In a letter to the Senate, the groups said: "We strongly oppose this amendment...The death penalty is irreversible and highly controversial – with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people. Moreover, there are serious, well-documented concerns about unequal and racially biased application of the death penalty."

The Sessions amendment can still be removed from the bill by a House-Senate conference committee that will meet in September to reconcile the two versions of the legislation. The full House and Senate will vote on the final version of the bill before it is sent to President Obama.

The Matthew Shepard Hate Crimes Prevention Act will authorize the Department of Justice to investigate and prosecute certain bias-motivated crimes based on the victim's actual or perceived sexual orientation, gender, gender identity, or disability.  Currently, the federal government can only investigate hate crimes motivated by the victim's race, color, religion, and national origin in limited cases.

You can read the letter, which was signed by 46 national organizations.  Here's an excerpt from the beginning:

On behalf of the civil rights, religious, professional, civic, and educational groups below, we write to urge you to oppose two unnecessary and harmful amendments offered by Senator Sessions to S. 1390, the FY 2010 Department of Defense Authorization bill.

As strong supporters of S. 909, the Matthew Shepard Hate Crimes Prevention Act (HCPA), we supported the addition of this legislation as an amendment to S. 1390 last week. At a time when Congress is poised to advance civil rights protection by promoting new Federal-state partnerships and providing new tools to address bias-motivated violence, the proposed amendments by Senator Sessions (a staunch opponent of the HCPA) would be a disturbing step backward – and raise the prospects of unequal, politically-motivated, shifting standards of justice in applying the new hate crime law in the future.

One amendment offered by Senator Sessions, S.Amdt. 1615, would add the death penalty to the provisions of the HCPA. We strongly oppose this amendment.

The Hill reports, "Hate crimes amendments pass easily."  It's written by J. Taylor Rushing.

The Senate on Monday passed four amendments to the Defense Department authorization bill that limit the extension of federal hate crimes laws.

One amendment requires that hate crimes be identified and prosecuted based on “neutral and objective criteria.”

Another boosts penalties for attacks on U.S. military service members and their families, while a third authorizes the death penalty for certain crimes that result in death.

All three amendments were backed by Republicans, most of whom voted against the extension of hate crime protections last week.

The chamber also passed one Democratic amendment, a compromise proposal by Judiciary Committee Chairman Patrick Leahy (D-Vt.), that would limit hate crime prosecutions until a state’s attorney general has established standards for applying the death penalty.

Three of the four amendments were unanimously passed; the measure regarding attacks against U.S. military service members passed by a vote of 92-0.

None of the changes significantly affect the chamber’s action last week in passing by voice vote an amendment by Leahy that expands the federal definition of hate crimes to include crimes targeting victims because of their sexual orientation, gender or disabilities.

Republicans continued to grumble about that vote on Monday, with Judiciary Committee ranking member Jeff Sessions of Alabama, a former federal prosecutor, giving a lengthy, 50-minute floor speech denouncing the idea of enhancing hate crimes prosecutions.

"Senate takes up concealed weapons measure," is Jim Abram's AP report, via  Google News.

The Senate on Monday also approved remaining amendments to the hate crimes bill, including one describing when perpetrators of hate crimes will be subject to the death penalty and another creating a new federal crime for targeted attacks on members of the military or their families.

On Thursday the Senate adopted the body of the hate crimes measure by voice after voting 63-28 to overcome a GOP-led filibuster. The bill, promoted for more than a decade by ailing Sen. Edward Kennedy, D-Mass., expands those categories covered by hate crimes and makes it easier for federal authorities to aid state and local prosecutions or take over cases when the local authorities can't or are unwilling to pursue them.

Current law, dating back to 1968, covers crimes motivated by race, color, national origin or religion.

Clemency Recommendation in Ohio

"Board: Spare killer’s life," is Christopher Bobby's report for the Saturday edition of the Warren Tribune Chronicle.

Within an hour of the Ohio Parole Board recommending clemency for Trumbull County death row inmate Jason Getsy Friday, Trumbull Prosecutor Dennis Watkins was drafting a letter to Gov. Ted Strickland asking him to set aside the recommendation.

''I sense a major shift in policy by the parole board, and it's a slap in the face to the jury, judge and all the (appellate) courts that have heard his case. He was sentenced to die,'' Watkins said. ''Is this parole board becoming some kind of super court?''

In a 5-2 vote the board is recommending that Getsy serve a prison sentence of life with no chance of parole rather than go through with an execution set for Aug. 18.

''They're opening a Pandora's Box,'' Watkins suggested, referring to the board's 20-page opinion that gives considerable weight to the argument that since none of three other co-defendants in the case received the death penalty, neither should Getsy.

Getsy, 33, was convicted in 1995 of aggravated murder in the slaying of Ann Serafino, 68, of Hubbard, and of the attempted murder of her son Charles.

Prosecutors said John Santine offered Getsy and two others $5,000 to kill Charles Serafino, a business rival, and any witnesses because of a dispute over Serafino's landscaping business. Ann Serafino was killed because she was at home when the gunmen attacked, authorities said.

Santine was convicted of aggravated murder. Co-defendants Richard McNulty and Ben Hudach both pleaded guilty. They all received life sentences.

And:

Since Ohio resumed executions in 1999, the parole board has recommend clemency only three times, including Getsy. In the other two cases, the governor followed the recommendation of clemency. One was by Strickland and the other by Bob Taft.

The AP report, "Ohio parole board makes rare mercy recommendation in death penalty case," is via the Cleveland Plain Dealer.

The triggerman in a 1995 murder-for-hire scheme should be spared execution because other members of the plot were just as guilty, the Ohio Parole Board said Friday in a rare ruling in favor of mercy.

The board ruled 5-2 in favor of clemency for Jason Getsy, 33, scheduled to be executed Aug. 18 for the murder of 68-year-old Ann Serafino, of Hubbard.

Getsy was also convicted of the attempted murder of Serafino's son, Charles, who was the target of the scheme. Getsy and other participants did not expect Ann Serafino to be home the night of the shooting.

The board singled out the life sentence for John Santine, who initiated and organized the crime, saying Santine appeared to be just as guilty as Getsy.

Santine, 48, is serving a sentence of 35 years to life.

"In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants," the parole board said.

The board noted that prosecutors downplayed Santine's influence during Getsy's trial but made that influence the primary theory behind the crime during Santine's trial.

Two board members voted against clemency, saying nothing requires a comparison of Getsy's sentence to that of Santine.

And:

Gov. Ted Strickland, who has the final say, will review the case thoroughly, spokeswoman Allison Kolodziej said Friday.

A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out Getsy's sentence in 2006 as arbitrary. The full 6th Circuit reinstated the sentence in 2007 in a divided 8-6 ruling.

Favorable clemency recommendations are rare in Ohio, which has executed 30 men since 1999, with another execution likely Tuesday.

Earlier this year the parole board also recommended clemency for death row inmate Jeffrey Hill, who killed his mother in a cocaine-induced rage but whose execution was opposed by his entire family.

Strickland agreed and commuted Hill's sentence to life in prison with parole possible after 25 years.

Related articles are in StandDown's clemency index

In Washington State

Today's Olympian carries the editorial, "Should death penalty continue? Time to decide."

Three inmates on Washington’s death row took another step closer to execution recently when Thurston County Superior Court Judge Chris Wickham ruled that the state’s lethal injection procedures are constitutional.

Attorneys for the three condemned inmates say they will appeal Judge Wickham’s decision to the Court of Appeals and state Supreme Court, so Washington residents are not likely to see an execution anytime soon.

But heightened public awareness of these cases prompts a question: Isn’t it time Washington residents be asked if they still support capital punishment? After all, it has been 34 years since Washington voters last had their say on this life-and-death issue.

On the November 1975 general election ballot was Initiative 316 which asked whether the death penalty should be mandatory for aggravated murder in the first degree. A resounding 69.1 percent of the voters said “yes” to capital punishment. The vote margin in Thurston County was 19,737 in support, 8,398 opposed.

Fewer than 1 million voters cast ballots in that election. Compare that with last year’s presidential election when nearly 3 million votes were cast. Clearly, the state has millions of new residents who have not been asked their views on capital punishment. They deserve a say on such an important social and ethical issue.

And:

While the courts continue to wrestle with the legal issues, it’s time Washington residents be consulted on their views of capital punishment — either through the citizen-driven initiative process or through a constitutional amendment proposed by the Legislature.

Fifteen states and the District of Columbia have joined Canada, the United Kingdom, France, Australia and others without a death penalty statute. Do Washington residents want to add this state to that list? It’s time they were asked.

Earlier coverage from Washington state begins here.

A Profile of AP's Michael Graczyk

CNN today has, "Texas reporter's seen unrivaled number of U.S. executions," reported by Dave Alsup.

It takes seven minutes to execute a death row inmate, according to the state of Texas.

At that rate, Mike Graczyk has spent about 40 hours of his life watching men -- and a few women -- die.

Graczyk, a correspondent for The Associated Press, is believed to hold a macabre record. He's almost certainly watched more executions than anyone else in the United States.

"I can't possibly imagine there's been someone present at more than Mike," said Michelle Lyons, the spokeswoman for the Texas Department of Criminal Justice, which uses lethal injection at its execution chamber in Huntsville.

Since the death penalty was reinstated in 1976, no state has executed more inmates than Texas. And no one has witnessed more of them than Graczyk.

He's on the witness list for 315 of the state's 439 executions -- more than any other reporter, prison employee or chaplain -- and no records were kept for another 80.

In his early days, he kept count. But he eventually stopped. He didn't want to know.

"In one circle, I was perceived as putting notches on my gun belt," the 59-year-old reporter said. "I didn't like that."

Prison regulations in Texas require The Associated Press to be given one of the five designated media witness passes for each execution.

And:

Of the entire death chamber ritual, Graczyk said, it's the final statements that stick in his mind. Some have been confessions. Others were denials.

Poetry. Prayers. Bible verses. Curses. Emotions ranging from defiance to resignation.

There was Jonathan Nobles, an electrician who stabbed two people to death. He sang "Silent Night."

"Ever since then, I think of him on Christmas or Christmas Eve when I'm in church," Graczyk said. "That's the kind of thing that haunts you."

The person who may come closest to Graczyk's status also felt things that haunted him.

Don Reid, a writer for the AP and, before that, a Texas newspaper, witnessed 189 executions in the 1960s, when Texas still strapped inmates to "Old Sparky," the nickname for the state's electric chair.

The experience changed Reid, who died in 1981, from a supporter of the death penalty to an opponent. He wrote a book, "Have a Seat, Please," chronicling that transformation.

Editorials on Prison Cell Phone Blocking

Today's Longivew News-Journal carries the editorial, "Cell phone, cell mates: Bill would allow prisons to jam illegal use."

State officials are pushing Congress for the right to use jamming equipment in prisons to stop prisoners from using smuggled cell phones. While we appreciate the concerns of the cell phone industry that such jamming equipment could adversely affect legitimate customers, certainly there's a solution here.

In a number of well-publicized incidents, prisoners have been caught directing criminal activity outside the prison by using cell phones. Ideally, prison officials could stop phones from being smuggled inside. The reality is that no system is perfect. Family members and crooked guards are the most common ways phones end up in inmates' hands.

In the fall, state Sen. John Whitmire, D-Houston, was the target of a two-week harassment campaign by a death-row inmate using a contraband cell phone.

In 2008, California confiscated more than 2,800 cell phones. Other states recorded similar numbers, such as 2,000 snatched from Mississippi cells and 1,600 from federal prisons, according to a Dallas Morning News story. The phones aren't simply being used to call Mom or a girlfriend. They are being used to run gangs from inside prison, to operate drug rings and to direct all manner of criminal activities.

Right now, it's against federal law to electronically disrupt phone calls. Sen. Kay Bailey Hutchison, R-Texas, and Sen. Barbara Mikulski, D-Md., are trying to change the law so prisons could set up jamming equipment.

We believe this legislation is needed.

Florida's Lakeland Ledger carried the editorial, "Cell Phones in Prison: Jamming the Jails," in Thursday's paper.

For years, inmates have been getting banned cell phones into prison, either smuggled or thrown over the wall. Some inmates then use the phones to organize and execute more crimes.

The simplest answer is to jam cell phone reception and transmission in jails. Plenty of states would like to do just that in some or all of their correctional facilities, but they face a problem: The Federal Communications Commission won't let them.

The FCC says only federal agencies can block cell phone signals, not state or local authorities. This week, correctional officials from 29 states petitioned the FCC to revise a 1934 law that bans interference with radio signals, including cell phones.

Twenty-six states were on the original petition; Ohio, Oregon and Texas joined in after the petition was filed. Sadly, the name of Walter McNeil, head of the Florida Department of Corrections, isn't among the petitioners.

Yet Florida has the problem as well. Just more than two weeks ago, a correctional officer at the Everglades Correctional Institution was arrested for drug trafficking, conspiracy to introduce drugs into a correctional facility and bribery after allegedly agreeing to smuggle two cell phones, one pound of marijuana and 4 ounces of cocaine into the facility.

During the past fiscal year, the Florida DOC confiscated 336 cell phones from Florida's prison population. Penalties for smuggling cell phone into Florida prisons were increased last year to a third-degree felony and up to five years in jail. Last year, Florida prison officials put the state's first cell-phone sniffing dog to work.

California, with the nation's largest prison system, confiscated more than 2,800 cell phones last year, reported Time magazine - double the number from 2007.

And:

State prisons, whether by interpretation of current laws or passage of new ones, should be able to jam cell phone transmissions - and Florida's correctional officials should join the other 29 states in petitioning the FCC for the authority.

News coverage begins with this earlier post.

State Officials Urge Federal Legislation to Block Cell Phone Signals From Prison

Last year, contraband cell phones turned up on Texas death row, with one inmate repeatedly calling a state senator and a journalist.  The problem is not limited to Texas, however, and earlier this week, officials from a number of states called for federal legislation.

Let's begin with "Texas seeks OK to jam cell phones," written by Amy D'Onofrio for the Thursday Houston Chronicle.

Texas officials urged Congress on Wednesday to permit states to electronically jam cell phone calls made by prisoners.

State Sen. John Whitmire, D-Houston, and Inspector General John Moriarty of the Texas Department of Criminal Justice, told lawmakers about a death row inmate who used a cell phone he bought for $2,100 from a prison guard to make threats against Whitmire last October.

Whitmire said electronic jamming was one of the most valuable tools in preventing attacks cell phone attacks by inmates.

Sen. Kay Bailey Hutchison, R-Dallas, is sponsoring legislation to allow correctional facilities to individually petition the Federal Communications Commission for permission to use wireless jamming devices.

“When a single call can result in someone's death, we have an obligation to exhaust every technology at our disposal,” Hutchison said at the Senate Commerce Committee's hearing.

While 28 states want the ability to jam cell phone signals, representatives of the communications industry testified that jamming would not be the best solution to prevent cell phone use by criminals.

Steve Largent, president and CEO of CTIA-The Wireless Association, said jamming is not as effective as other methods in preventing inmate cell phone use.

“The problem with jamming as a technique, in my opinion: It's crude, it's unreliable, and there are better ways to do it so that it doesn't interfere with public safety,” Largent said.

He said other solutions to the problem included cell detection to monitor and track cell phones in facilities, as well as “managed access,” a way to restrict wireless communication to only certain cell users.

And:

Whitmire said Texas has tried every alternative.

“We're still experiencing phones being intercepted and used in our prisons ... short of jamming and a complete shutting down of those phone signals, I don't think you can remedy the problem,” Whitmire said.

Moriarty said Texas was the first state to make it a felony to provide a cell phone to a prison inmate.

At the Dallas Morning News Crime blog, Diane Jennings has, "TDCJ official says foreign death penalty opponents funding cell phone smuggling."

When John Moriarty, inspector general for the Texas Department of Criminal Justice testified before Congress yesterday in support of legislation to permit cell phone signal jamming around prisons, he offered some insights into the problem of phone smuggling to prison inmates.

Moriarty told legislators phones are usually carried into the facility by corrupt employees or contractors; dropped in a location to be smuggled in by inmates or concealed in packages shipped into the facility.

And:

The cost to have a cell phone smuggled inside a prison ranges between $400 and $2,000, he said. Perhaps most startling was his comment that his office has "developed evidence that money from foreign nationals involved in the anti-death penalty movement was utilized to facilitate some of these organized smuggling operations."

"Officials ask help controlling prison cell phones," is Brian Witte's report for AP, via Google News.

State officials appealed to members of Congress on Wednesday to give states a new tool to control illegal cell phone use by prison inmates and quickly ran into protests from the phone industry.

Industry representatives say jamming signals could interfere with legitimate service and 911 calls.

Prisons around the nation are grappling with rising problems from prison inmates using cell phones to coordinate criminal activity. Officials are backing legislation to change the law to allow states to use cell phone jamming technology to render cell phones useless in prison.

And:

The dangerous and far-reaching aspects of prisoner cell phone use were illustrated in Maryland two years ago, when a Baltimore drug dealer used a cell phone to plan the killing of a witness from the city jail. In May, Patrick A. Byers Jr. was convicted of murdering Carl S. Lackl Jr., who had identified Byers as the gunman in a previous killing.

Gary Maynard, secretary of the Maryland Department of Public Safety and Correctional Services, emphasized that the problem is a national issue, noting that California prison officials collected more than 2,800 cell phones last year — two times the amount found the previous year.

"We need to fight technology with technology," Maynard said.

Maryland has made a request to the National Telecommunications and Information Administration for a 30-minute demonstration at a Maryland prison that houses federal inmates to inform Congress about available technology to combat illicit cell phone use.

The agency shares responsibility for managing the nation's communications network with the Federal Communications Commission.

Last week, South Carolina's prison chief said corrections directors in 26 states signed on to a petition he sent to the FCC asking federal regulators' permission to jam cell phone signals inside state penitentiaries.

Lawrence E. Strickling, assistant secretary for communications and information at the Commerce Department, cited the South Carolina filing in a response to Maryland Gov. Martin O'Malley's request to the NTIA. Strickling wrote that he has reached out to the FCC "so that the two agencies can develop a coordinated approach with respect to the jamming issue generally and your specific proposal in the state of Maryland."

The FCC has authority over non-governmental radio communications, while the NTIA has authority over federal uses of the radio spectrum.

Under current law, the FCC can only allow federal agencies — not state or local authorities — permission to jam cell phone signals. The FCC has denied two recent requests from the District of Columbia and Louisiana for test jamming sessions.

Information Week reports, "Senate Seeks FCC Approval To Jam Prison Cell Phones," W. David Gardner

With strong bipartisan support to permit the jamming of cell phone signals in prisons, the issue will head to the Federal Communications Commission, which has had longtime jurisdiction over wireless jamming and interference measures.

The debate has received widespread attention this week in hearings conducted by the U.S. Senate Commerce Committee. The Safe Prisons Communications Act, co-sponsored by Senator Kay Bailey Hutchison (R-Texas) and Senator Barbara A. Mikulski (D-Md.), calls for the FCC to give correctional facilities a waiver to operate cell phone signal jamming devices at their prisons.

From Ohio, the Columbus Dispatch has, "Prison cells take on a new meaning," by Alan Johnson. "Md. Officials Push for Prison Cell Phone Jamming," is from the Washington Post.  In Nevada, the Reno Gazette-Journal carries, "Nevada joins in bid to control prison cell phones."

Senators Kay Bailey Hutchison, Amy Klobuchar of Minnesota, and Barbara Mikulski of Maryland have all issued news releases.

Related coverage begins here; Texas coverage, here.

The Never-Ending Crime Story

That's the title of Jordan Smith's latest report on Austin's yougurt shop murders in this week's Austin Chronicle.  LINK  Here's the beginning of the lengthy article, recapping the history and looking at whether Michael Scott and Robert Springsteen will face new trials:

On Wednesday, June 24, Michael Scott and Robert Springsteen walked out of jail after spending nearly 10 years behind bars for the 1991 murders of four girls at a North Austin yogurt shop – a crime both insist they took no part in.

The discovery last spring of male DNA in the body of one of the victims, Amy Ayers, marked a seismic shift in the case. The DNA does not belong to any of the original suspects – nor does it belong to any of the more than 100 men the Travis County District Attorney's Office has subsequently tested. In the wake of that futile search, late last month prosecutors told District Judge Mike Lynch that they were not ready to go to trial – in fact retrials, on convictions that were later reversed – and Lynch, in turn, freed Springsteen and Scott on personal bonds.

The experience has been "a little bit overwhelming," Springsteen told the Chronicle last week. In a post-release interview, Springsteen said he is happy to be out of jail but wants "a trial so we can have the 'not guilty,'" he said. "I want to be vindicated because there has been so much nonsense going on in Austin [with this case] for the last ... 10 years or so. I know there is always going to be that contingent of people who say, 'I don't care what DNA says; they're guilty,'" he said. "But ... in the last year ... everybody [else] has been like – OK, before [my guilt] was questionable. It's not questionable anymore."

Indeed, defense lawyers argue that the new DNA evidence proves not only that the cops arrested the wrong suspects but also that the "confessions" the men made to police were false. Now, more than 17 years after the murders – and with the current status and potential outcome of the case entirely unclear – it seems that the central question has once again become, who killed these four girls?

Earlier coverage begins with this post.  The Austin Chronicle has an extensive archive of its earlier coverage. 

No Posthumous Pardon From Perry

That's the title of a report by Jordan Smith in the latest Austin Chronicle, out today.  LINK  Here's an extended excerpt:

The debate over whether Gov. Rick Perry is free to grant a posthumous pardon – without any change of law, without a constitutional amendment – is still raging: On July 6, the Legislative Council – which provides legal research and opinions to lawmakers – weighed in, opining that state laws are actually silent on the topic. "May the governor grant a legally effective posthumous pardon under current Texas law?" wrote Gabe Brake, a Lege Council attorney. "Possibly." The law is "unclear on the question," and "no Texas court has squarely answered this question," he wrote.

At issue is a posthumous pardon for Timothy Cole, who died in prison while serving time for a 1985 rape in Lubbock that he did not commit. Cole was posthumously exonerated earlier this year, and since then his family has been seeking a pardon from Perry – so far, with no success.

Lawmakers failed to pass a joint resolution this spring that would have expressly granted the governor such power (the measure became a casualty of House chubbing). Sen. Rodney Ellis, D-Houston, said late last month that he doesn't believe Perry needs a constitutional amendment to do the job but that if that was Perry's position, he should add the issue to the special session call. That didn't happen either.

According to Perry, his hands are tied by a 1965 opinion issued by then-Texas Attorney General Waggoner Carr, who concluded that a posthumous pardon is not possible since the inmate in question is dead, and thus, "the pardon not being delivered to the convict during his lifetime, it could not be accepted by him." That's Perry's position, too, it seems – and he's sticking with it. The governor is sorry that lawmakers couldn't get a resolution passed to give him the power, Perry spokeswoman Katherine Cesinger said in a message to the Chronicle earlier this month, but his hands are tied.

But Ellis says that's just not true: The A.G. opinion in question is not binding, and there is nothing in the law that would expressly prohibit Perry from doing the right thing. Indeed, the Lege Council opinion seems to support the position of Ellis and his allies on this issue, Reps. Marc Veasey, D-Fort Worth, and Ruth Jones McClendon, D-San Antonio. The notion that an exoneree must be alive to receive a pardon dismisses the so-called "public welfare" view taken by the U.S. Supreme Court in 1927, which ruled that a pardon issued by the president was valid regardless of whether the person was alive to accept it. "The public welfare, not [the] consent" of the person being pardoned, "determines what shall be done," the court ruled. To date, 10 such pardons have been granted in nine states, and two presidents, Bill Clinton and George W. Bush, have issued posthumous pardons.

More on the Cole exoneration begins with this post.

Continuing Coverage of the Sotomayor Confirmation Hearing

Today may be the last day that Judge Sotomayor answers questions from Senators.  For those following the hearings I want to point out a few resources.

SCOTUS Blog has been doing it's normally excellent job live blogging the hearings from the press table in the hearing room.  Tom Goldstein and Kristina Moore have provided commentary and links to the senators' questioning.

One of those links is the Washington Post photographic coverage of the hearings.

At National Journal, Stuart Taylor is writing a Ninth Justice blog.

North Carolina RJA Returns to Senate

The Racial Justice Act, SB 461, received final passage in the North Carolina House yesterday.  It returns to the Senate where a different version has already passed.  Today's Winston-Salem Journal reports, "N.C. House approves Racial Justice Act."

The N.C. House gave its final approval yesterday to a bill known as the North Carolina Racial Justice Act, which would set up new ways for defendants and death-row inmates to argue that capital punishment is applied in a racially biased manner.

The House approved the bill on a vote of 61-53, with most Democrats in favor and Republicans opposed.

The N.C. Senate previously approved a different version of the bill. Before it can become law, the House and Senate must agree on a single version.

Today's Carrboro Citizen has the OpEd, "Overcoming the demagoguery about death and taking steps forward - barely," by Chris Fitzsimon.  He's the director of NC Policy Watch.

The death penalty was front-and- center at the General Assembly Tuesday, as lawmakers debated proposals to prohibit the execution of people with a severe mental illness and to provide safeguards to make it less likely that race will play a role in capital cases.

After a heated and emotional debate, the House passed the Racial Justice Act that would allow a defendant to present evidence that race was a significant factor in the decision to seek the death penalty or impose it.

House Minority Leader Paul Stam made a series of absurd claims during the debate, most offensively that lawmakers who supported the bill would somehow be responsible for murders committed because, according to Stam, the death penalty is a deterrent.

The debate also included exchanges on topics that had little to do with the proposal: the gruesome details of specific crimes, the exoneration of people wrongly convicted and sentenced to death, even the Holocaust.

The bill simply gives a capital defendant a specific opportunity to make the case that race was playing an improper role in his or her case. That’s it. It is not an attempt to abolish the death penalty and it has nothing to do with past reforms of capital punishment or guilt or innocence.

People convicted of first-degree murder are either sentenced to death or life in prison without parole. Those are the only choices. You would think that adding a procedure to make sure that decision is made fairly wouldn’t inspire such vigorous opposition. Thank goodness a narrow majority of the House understands that.

Earlier coverage of the legislation begins with yesterday's post.

Lab Analyst Decision Complicates Prosecutions

That's the title of a report in today's Washington Post on the aftermath of the Supreme Court's ruling in  Melendez-Diaz v. Massachusetts, last month.  Subitled, "High Court Requires Scientists to Testify," it's written by Tom Jackman.

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper.

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

And:

The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.

Last month's Supreme Court ruling emerged from a case in which Luis E. Melendez-Diaz allegedly stashed cocaine in a Boston police car while he was under arrest. The certificate of analysis, determining that the white powder found in the car was cocaine, was entered without a technician's testimony and with only minor objection.

Scalia wrote that Melendez-Diaz "was entitled to 'be confronted with' the [lab] analysts at trial."

The ruling was 5 to 4, and the dissent written by Justice Anthony M. Kennedy predicted a real-world disaster. "The Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear," Kennedy wrote.

Kennedy added, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision, adding nothing to the truth-finding process."

In Manhattan, a unique situation in the medical examiner's office could result in disaster for homicide cases, Chief Assistant District Attorney Mark Dwyer said. The personnel turnover in the medical examiner's office is so great that the pathologist who performs an autopsy on a victim often is not still employed there 18 months later, when the case goes to trial. So the accepted practice in courts has been to admit the autopsy report without any testimony by the person who determined the cause of death, Dwyer said.

In addition, New York's DNA lab uses an assembly line approach in which as many as 12 people have roles in breaking down and analyzing a piece of evidence for traces of DNA, Dwyer said. "We would be extremely concerned if the [Melendez] issue extended into DNA analysis and autopsy reports," he said. "That would have a major and negative impact on the ability to process serious cases."

Earlier coverage of Melendez-Diaz begins here.  Briscoe, et al., v. Virginia will be argued in the Supreme Court's 2009-2010 term which begins in October.

Mosley Execution Rescheduled for September

"Execution of police officer's killer delayed," is the title of Michael Graczyk's AP report, via the Dallas Morning News.

A state judge has moved this week's scheduled execution of condemned murderer Kenneth Mosley to September, his attorney said Tuesday.

Mosley, 50, was set to die by lethal injection Thursday for the fatal shooting of Garland police officer Michael Moore. The 32-year-old officer was fatally wounded during a bank robbery 12 years ago by a bullet that struck above the top edge of his protective vest. Mosley was shot in the wrist by another officer waiting outside the bank and was arrested in the parking lot.

Defense attorney Bruce Anton said Mosley's execution is now scheduled for Sept. 24. Mosley still has unresolved appeals pending before the U.S. Supreme Court and his attorneys requested the delay.

Also:

Another execution is set for next week in Texas. Roderick Newton faces lethal injection July 23 for the slaying of 20-year-old Jesus Montoya, who was carjacked and then shot as he was forced to make a withdrawal from an ATM in Dallas 10 years ago.

According to TDCJ,six Texas executions are scheduled this year in addition to Newton's.  More may be added by state district courts during the remainder of the year.  Capital Defense Weekly notes execution dates in other states.

North Carolina Racial Justice Act Contintinues to Advance

The bill, SB 461 in the North Carolina General Assembly, faces a second vote in the House chamber today.  The News& Observer of Raleigh reports, "Death penalty bill provokes a battle."  It's written by Michael Biesecker.

Judges would be allowed to consider whether racial bias played a role in the decision to seek or impose the death penalty, according to a bill on which the N.C. House voted Tuesday evening after a long and emotionally charged debate.

"This is a fairness bill," said Rep. Larry Womble, the Forsyth Democrat who helped champion the bill. "If we're going to kill people, we must be as fair and objective as we can. This allows one more chance for justice to be blind. ... It's not a get-out-of-jail free card for anybody."

Democrats cited studies showing blacks are far more likely to be sentenced to death in North Carolina than whites. Further, a defendant is 3.5 times more likely to face the death penalty when the victim is white than when the victim is black.

And:

The N.C. Racial Justice Act passed its second reading in the House 61-55, with every Republican and four Democrats voting no.

A final House vote could come today, and the bill would then return to the Senate, where it may have a difficult time gaining approval and may require a compromise. That's because the House version left out a section of the Senate bill designed to help remove obstacles that have effectively halted executions for two years. Senate leaders said that provision must be included for the Racial Justice Act to pass that chamber.

Still, supporters rejoiced in Tuesday's vote, which they saw as a signal that the Democrat-controlled legislature might approve the bill.

Similar versions of the legislation had failed in past years in the face of opposition from the majority of the state's sheriffs and district attorneys.

"Racial justice bill moves on," is James Romoser's report in today's Winston-Salem Journal.

The bill's chief sponsors are two Democrats from Winston-Salem: Reps. Larry Womble and Earline Parmon. They said that the bill is meant to ensure that capital punishment in North Carolina is carried out fairly, and they said that it would help mend a history of discrimination in the criminal-justice system.

"If we're going to kill people, then we must be as fair and objective as we possibly can," Womble said in a long, impassioned speech on the House floor.

"People do not shed their personal experiences, or their personal prejudice, or their biases at the courtroom door. Race is still a matter in this state," he said.

The bill's supporters pointed to data showing that the death penalty is more likely to be handed down in cases involving white victims or black defendants. Defendants should be allowed to use such data as evidence in court, the bill's supporters say.

The bill was vigorously opposed by Republicans, who argued that it would clog up the court system with unnecessary appeals, further postpone the resumption of executions in North Carolina, and cost the state millions of dollars.

They also objected to the bill's most controversial provision -- allowing statistical evidence from other cases as a way for a defendant to try to prove racial bias.

Under the bill, a defendant could cite statistical disparities from other death-penalty cases, either in the state at large, or in the defendant's jurisdiction. If the statistics showed significant racial disparities in how the death penalty has been applied, a judge could block a prosecutor from pursuing the death penalty in that case, or overturn a jury's decision to impose a death sentence.

In addition, all inmates now on death row would have the opportunity to argue under the bill's provisions that their death sentences were racially motivated.

If a death sentence were thrown out under the bill, it would be converted to a sentence of life in prison without parole.

The AP report, written by Gary Robertson is, "Racial Justice Act gets initial OK in N.C. House," via the Virginian Pilot.

A final House vote could come Wednesday. Then it would then return to the Senate, where it could have a difficult time gaining approval and could require a compromise. That's because the House version left out a section of the Senate bill, approved in May, designed to help remove obstacles that have effectively halted executions for two years. Senate leaders said the provision was the only way that the Racial Justice Act could pass the chamber.

The House, which approved a somewhat similar Racial Justice Act in 2007, agreed Tuesday to the measure after an intense 2½-hour discussion on capital punishment and whether lingering racism in some areas of society has made its way into the criminal justice system.

Lawmakers, all of them Democrats, cited situations in which condemned prisoners have been removed from death row or lengthy prison terms as proof that the system can create inequitable outcomes.

Former death-row inmate Robert Bacon received clemency in 2001 from then-Gov. Mike Easley after an all-white jury sentenced the black defendant to death while allowing a white co-defendant to avoid a death sentence.

"Race matters then and it matters today," said Rep. Alma Adams, D-Guilford. "Discrimination and racism (are) still around. Whether we like it or not, race matters."

Republicans and the state district attorneys' group opposed the bill, saying it will further delay pending executions even though capital punishment hasn't been carried out in North Carolina since 2006.

Earlier coverage of the RJA begins with this post.

The Sotomayor Hearings

As the confirmation hearings wind through a second day, the Wall Street Journal has an editorial column, "Sotomayor and International Law," written by editorial writer Collin Levy.

Sonia Sotomayor will parry a wide range of questions about her judicial philosophy during her Supreme Court confirmation hearings in the Senate this week. The most revealing line of inquiry may be about her views on the use of foreign and international law when judging cases.

Like several of the judges on the left branch of the court, Judge Sotomayor has said she favors a broader consideration of foreign and international law in U.S. judicial opinions. While she rarely had occasion to dip into foreign sources during her time on the Second Circuit, she recently went out of her way to embrace the concept and its applications by the high court.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."

That's political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.

Of particular interest to the confirmation hearings will be Judge Sotomayor's favorable reference in the ACLU speech to the Supreme Court's reasoning in two recent cases citing foreign and international law: Roper v. Simmons and Lawrence v. Texas. In Roper, the Court drew on international criticism of the death penalty to buttress the argument that it should be prohibited for juveniles under the Eighth Amendment prohibition of cruel and unusual punishment.

In Lawrence v. Texas, the court overturned a Texas statute against sodomy on the grounds that it violated due process. In his opinion for the majority, Justice Anthony Kennedy cited the European Court of Human Rights to show that the court's earlier decision in Bowers v. Hardwick was incorrect. In both those cases, Judge Sotomayor said, the court was using the foreign or international law to "help us understand what the concepts meant to other countries and . . . whether our understanding of our own constitutional rights fell into the mainstream of human thinking."

Death Penalty Does Not Deter Murder

That's the title of an OpEd in the Sunday edition of the Contra Costa Times written by Mike Radelet and Werner J. Einstadter.  Radelet is co-author of a recent deterrence study, Einstadter worked in California corrections and is Einstadter is a professor emeritus of criminology and sociology.  LINK

A NEW survey of America's leading criminologists has concluded that the death penalty does not deter homicide any better than long imprisonment. Eighty-seven percent of the experts believe that capital punishment can be abolished without any adverse effect on the murder rate.

Why then is California keeping this expensive but unproductive policy when it is facing in excess of a $26 billion deficit? It is astounding that the state is spending $137 million per year to retain the death penalty and getting virtually nothing in return.

The certainty of a punishment is a more effective deterrent than its severity. In California, nearly 40 percent of all homicides are not solved. If the state is serious about reducing the homicide rate, it is much more constructive to spend tax dollars on apprehending murderers and administering prompt punishment than on executing those who we know will already die in prison.

In recent years, public confidence in the death penalty has been chipped away by DNA exonerations, evidence of massive inequities and racial bias, its failure to give "closure" to victims, and a general sense that the system is too broken to be fixed. Since 1973, 133 people in 26 states have been released from death row because of innocence. Three were in California.

The most important rationale used by friends of the executioner is deterrence. Supporting the death penalty gives politicians an easy way to pretend that they are serious about reducing criminal violence.

However, many studies have shown that murderers do not carefully weigh the costs and benefits of their actions. Anyone who can be deterred from committing murder by the death penalty can also be deterred by the less expensive alternative, life in prison without parole. Because of security requirements, each inmate on death row in California costs about $90,000 per year more than what it costs to incarcerate a prisoner serving life without parole.

Most police officers agree that the death penalty does nothing to deter crime. In a nationwide poll of police chiefs, the death penalty was ranked last in effectiveness among crime-fighting programs behind reducing drug abuse, improving the economy and jobs, hiring more police officers and reducing the availability of guns.

And:

California faces difficult fiscal choices. Ending the death penalty, an enormously expensive punishment that offers nothing for public safety, should be a no-brainer. Doing so would save California $1 billion over the next five years. About $1 billion would go a long way toward rehiring police officers, solving cold cases, making drug treatment available and other programs that reduce crime and make a difference in people's lives.

Earlier coverage of the Radelet & Lacock study begins here; more on the California cost debate, here.

Supreme Court Stays Scheduled Virginia Execution

The issue is double jeopardy.  "Stay granted in execution that had been set tonight," is Frank Green's report in today's Richmond Times-Dispatch.

Condemned killer Paul Warner Powell won another reprieve yesterday, this time from the U.S. Supreme Court, which stayed his execution set for tonight in Virginia's electric chair.

Powell, 31, was sentenced to die for the Jan. 29, 1999, capital murder of Stacie Lynn Reed, 16, in her Manassas-area home. After he stabbed Stacie to death, Powell raped and attempted to kill her 14-year-old sister, Kristie, and left her for dead.

The justices granted the stay in a brief order yesterday afternoon. The stay will last at least until Sept. 29, when the court has its regular conference to consider which cases to take up.

Powell is claiming to be the victim of double jeopardy. In his first trial, he was sentenced to death, but that sentence was overturned on appeal, and the Virginia Supreme Court ordered him to be retried on a first-degree murder charge. However, prosecutors tried him again for capital murder after he wrote a taunting letter in which he admitted to the crime.

If the court decides to hear the appeal, the stay will continue until the case is decided. If the justices decline to hear the appeal, the stay will be lifted automatically.

"U.S. Supreme Court stays execution of Virginia inmate," is the title of the AP report via the Virginian Pilot.

Powell was convicted of Reed's capital murder in 2000 and of raping and trying to kill her 14-year-old sister, Kristie. The Virginia Supreme Court overturned the capital murder verdict, saying prosecutors lacked evidence that he raped or robbed Stacie or committed other death-qualifying offenses.

Powell then wrote a taunting letter to Prince William County Commonwealth's Attorney Paul Ebert detailing how he tried to rape Stacie and then stabbed her in the heart. He said he went downstairs, had a cigarette and some iced tea and waited for her sister to come home from school.

Ebert threw out the first-degree murder charge and charged Powell with capital murder for the killing and attempted rape of Stacie. Powell was convicted again in 2003 and sentenced to death.

His lawyers argue that the second capital murder charge amounted to double jeopardy.

State and federal courts have repeatedly rejected Powell's claim, saying the original charge was different because he was not accused of attempting to rape Stacie.

A panel of the U.S. Fourth Circuit Court of Appeals denied Powell's claim in April in a 2-1 ruling, and the full court refused to take up the argument.

Appeals court Judge Roger L. Gregory offered the lone dissent in April's ruling.

The Pilot notes an index of case coverage by the News & Messenger newspaper in Manassas.

North Carolina Racial Justice Act May Face Key Vote This Week

"Racial justice? Bill that may be voted on this week would allow judges to throw out death penalties," by James Romoser appears in today's Winston-Salem Journal.  Here's an extended excerpt from this must-read:

When Ramona Stafford's husband was murdered in Winston-Salem in 1993, she didn't care about the killer's race.

She just wanted him punished to the fullest extent of the law.

"This fellow was black. But our family just wanted the person that did this. We just wanted justice and punishment," Stafford said. "Race, nationality, whatever, doesn't come into play."

Her husband's murderer, a defiant 21-year-old named Robbie Lyons who admitted the crime but never expressed remorse, was convicted and given the death penalty. Nearly 10 years later, with Stafford looking on, he was strapped to a gurney, wheeled into the state's execution chamber and given an injection that killed him.

A black defendant. A white victim. For Stafford, race wasn't an issue. But for critics of the death penalty, it can't be ignored.

That's the thinking behind a bill under consideration in the state legislature that could change the way the death penalty is applied in North Carolina. The bill, known as the Racial Justice Act, would allow judges to throw out the death penalty in a specific case if they found a trend indicating racial bias in other cases. The bill is up for a key vote in the N.C. House this week.

Supporters say the bill is needed to address a legacy of racial disparities in how the death penalty is applied, both nationwide and in North Carolina. In their view, no single death-penalty case can be fairly evaluated without considering the historical relationship of race and capital punishment.

"You can't just look at an individual case, because each capital case is a microcosm of the entire criminal-justice system," Mark Rabil, a capital defender in Winston-Salem, said.

As a legal matter, the argument behind the Racial Justice Act is controversial. It was rejected by the U.S. Supreme Court in 1987. And it's rejected by most prosecutors, who insist that cases should be decided only on their own facts, without reference to historical patterns.

The question now before state legislators is, in the narrowest sense, a strict policy question. But it's also fraught with issues of politics, race, and life and death. The question boils down to this: In a state that uses capital punishment, should a statistical pattern of racial disparities be enough to preclude the use of the death penalty against someone accused of first-degree murder?

And:

If it's approved in the House this week, it will be sent back to the N.C. Senate, which has approved a previous version of the bill. Parmon said the bill is likely to end up in a conference committee, where House and Senate negotiators would try to work out a compromise bill that could pass in both chambers.

The bill's passage would represent a foray into a largely untested area of death-penalty policy. Only one state -- Kentucky -- has a version of the Racial Justice Act on the books. But it's not a new idea. Opponents of the death penalty in many other states, and in Congress, have been floating similar legislation since 1987, when the Supreme Court handed down an influential decision in a case known as McCleskey v. Kemp.

In that case, Warren McCleskey, a black man who was convicted of killing a white man in Georgia, argued that the administration of the death penalty was racially biased and that his death sentence should be set aside. He cited statistical evidence showing that the death penalty in Georgia was imposed far more frequently in cases with black defendants or white victims. The reverse scenarios -- cases with white defendants or black victims -- were less likely to end in the death penalty.

The court rejected McCleskey's argument in a 5-4 decision. The court acknowledged profound racial disparities in the application of the death penalty, but it said they were not sufficient to establish that any of the decision-makers in McCleskey's case acted with bias.

The McCleskey ruling does not prevent states from enacting their own laws that allow statistics to count as evidence for bias. That's exactly what the Racial Justice Act would do.

Under the bill, defendants could cite statistical racial disparities from other cases in the state as a whole, or in their local jurisdiction, as evidence of bias on the part of prosecutors or juries. Prosecutors could counter with their own statistics.

Other, more traditional forms of evidence -- such as testimony from attorneys or police officers -- could be offered to try to prove or disprove bias.

If a judge sided with the defendant, the judge could prevent the prosecutor from seeking the death penalty or, after a trial, the judge could convert a jury's death sentence into a sentence of life in prison.

The opportunity to try to prove racial bias would be open to any future defendant, and it would also be available to every inmate currently on death row. The bill would give death-row inmates one year to bring forth such an appeal.

Earlier coverage of the legislation is here.