The StandDown Texas Project

Mississippi Supreme Court Flags Post-Conviction Review

"Death row case delays flagged," is the report in the Jackson Clarion-Ledger.

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.

At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions.

In a post-conviction petition, an inmate argues he has found new evidence - or a possible constitutional issue - that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.

He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out."

The death row inmates with mental disability claims are Willie C. Russell in Sunflower County, Ricky Chase in Copiah County, Ronnie Lee Conner in Lauderdale County and Kevin Scott in Bolivar County.

Court records show the Supreme Court ordered a mental disability hearing for Russell in 2003. Similar hearings were ordered for Chase and Conner in 2004, and Scott in 2006.

In the other three cases, the justices want to know why no decision has been issued.

An Update on Hannah Overton

Hannah Overton's case has attracted a great deal of attention in the Corpus area.  Many believe she was wrongly convicted.

"Hannah Overton case upheld by appeals court," is the title of the report in the Corpus Christi Caller-Times.  It's written by Mary Ann Cavazos and Denise Malan.

A court has denied the appeal of Hannah Overton, whose conviction of capital murder in 2007 sparked medical and legal questions and outrage among many in the local Christian community.

Overton, 32, was found guilty of capital murder in the Oct. 3, 2006, death of 4-year-old Andrew Burd, a boy she was in the process of adopting.

She was sentenced to life in prison without possibility of parole.

The 13th Court of Appeals in a 95-page ruling handed down Thursday cited evidence that Andrew showed serious symptoms such as shock and losing consciousness after Overton gave him a mixture of Cajun spices and water. He suffered cardiac arrest before she and her husband drove him to a clinic about 1½ hours later. The two made several calls, none to 911, the opinion noted.

The instructions to the jury stated Overton could be found guilty either by intentionally or knowingly causing his death or by failing to seek medical care. All 12 jurors found her guilty by her failure to act.

Even though the jury found her guilty by omission, the appeals court found there was evidence that supported it was an intentional killing.

“We conclude that the evidence was legally sufficient to support a finding that Overton either intentionally or knowingly caused (Andrew’s) death,” according to the opinion.

Prosecutors argued Overton fed Andrew the mixture of Cajun spices and water as punishment. Overton testified that the mixture was meant to satiate the child’s huge appetite.

Overton appealed the conviction on several grounds, including errors in the indictment and jury charge, insufficient evidence, prosecutorial misconduct and a claim of newly discovered evidence. The defense also accused 214th District Judge Jose Longoria of abusing his discretion in allowing testimony from the medical examiner and a doctor who treated the boy. That, too, was overruled.

It’s unclear what the next step will be in Overton’s fight to have her conviction overturned. She could petition the appeals court to reconsider the issue or ask the Texas Court of Criminal Appeals to consider it.

Overton’s San Antonio-based appellate attorney Cynthia Orr couldn’t be reached for comment.

But her lead trial attorney, John Gilmore, said many people believe in her innocence and won’t give up until every remedy is exhausted.

“This isn’t the last stop. She’s got a lot of supporters,” he said. “They’re stronger than ever.”

He said those who believe it was a just conviction don’t know Overton.

And:

Overton’s church, Calvary Chapel Coastlands, came to her defense from the start. After the trial there was a “Free Hannah” campaign with a Web site and bumper stickers. The church since has formed In the Interest of Justice, a nonprofit organization with the goal of educating the public about the judicial system.

Doug Hoffman, Calvary assistant pastor, said the ruling merely restated circumstantial evidence from the trial.

“We are confident that Hannah will be released someday — not just released but found innocent, that she did not intentionally harm this child,” Hoffman said. The ruling “was a punch in the stomach, but it wasn’t totally unexpected from knowing how things are sometimes handled there.”

Hoffman said he had not talked with Hannah but touched base with her husband, Larry Overton. Last year, Larry Overton pleaded no contest to the lesser charge of criminally negligent homicide and received five years deferred adjudication probation and a $5,000 fine. He has been raising the couple’s five children.

“He summed it up best how he explained it to the kids,” Hoffman said. “God isn’t really done with this situation yet. He told the kids that God is using Mommy every day where she’s at.”

The Court's ruling is here.  Earlier coverage of her case begins with this post.

Today's Willingham Commentaries

There is fresh commentary today.  Let's begin with Eugenia Willingham's, "So many questions that refuse to go away,"  in today's Fort Worth Star-Telegram.  She is Todd Willingham's stepmother.

Nearly 18 years ago, a long nightmare began for my family. Every time we think the truth is finally coming to light, a new twist reopens old wounds.

In 1991 my stepson, Cameron Todd Willingham, woke up to discover his Corsicana house on fire. The events that followed have been twisted by people with their own agenda. I am speaking out now because it is time for the truth in this case.

The evidence that was used to convict Todd has been discredited by experts and witnesses. Since Todd’s execution in 2004, several independent experts have concluded that the forensic analysis at Todd’s trial was wrong.

Gov. Rick Perry ignored an expert’s report about the evidence and refused to delay Todd’s execution. Five years later, Perry has interfered with the Texas Forensic Science Commission’s investigation of the case. It’s not clear when the commission will resume its work, but our family hopes it happens soon.

Meanwhile, Perry and others — including the man who prosecuted Todd, the defense attorney from Todd’s trial who I think defended him very poorly, and some members of the media in Texas — have focused on Todd’s character. For weeks, my family and I have seen reports about what a "monster" Todd was. The truth is that Todd was sometimes difficult, and his marriage was not always a happy one. That’s not a crime punishable by lethal injection.

When Todd was 13 months old, I married his father and we raised him together. I found a boy who was angry and confused, but also smart and compassionate. I helped that boy grow into a man who did everything he could to provide for his family and fill his children’s lives with love.

Todd loved his children. We all did. I have always believed he was innocent, even before the recent revelations about the evidence that was used against him.

And:

People are entitled to their opinions about the death penalty. But we don’t execute people for having a bad marriage and a complicated personality.

My family has lost three beautiful little children and their loving father. We want answers. We want to know how the justice system got so badly off-track in Todd’s case, and we want to know how many other families have been devastated by erroneous evidence in arson cases in Texas.

Attacking my son won’t change the troubling lack of evidence in his case, and it won’t answer questions that refuse to go away.

Today's Houston Chronicle carries the OpEd, "Willingham case could improve forensic analysis," written by State Senator Rodney Ellis and Innocence Project Co-Director Barry Scheck.

Cameron Todd Willingham's case has captured attention across Texas and around the nation for the last two months, raising serious questions on a number of fronts. To some people, the case is about capital punishment; to others, it's about politics and transparency in state government.

But what brought the Willingham case into the spotlight — and what we cannot lose sight of — is what it can do to ensure quality forensic analysis in Texas' criminal justice system.

Willingham was convicted of murder by arson in 1992 and executed in 2004. His three young children died in a fire at the family's Corsicana home. The centerpiece of the case against him was the testimony of forensic analysts who said the fire was intentionally set. Without the forensic evidence, there would be no legitimate reason to find that a crime had occurred, and Willingham would not have been tried or convicted.

In 2006, the Innocence Project brought the Willingham case to Texas' Forensic Science Commission, which the state Legislature had created a year earlier. The Legislature created this commission to investigate allegations of negligence or misconduct that substantially affects the integrity of forensic analysis and recommend corrective action. The commission's charge is straightforward and clear, and the Willingham case fits squarely within it.

The filing that kicked off the commission's investigation didn't just focus on Willingham's case. It also included the case of Ernest Willis, who was convicted and sentenced to death for a nearly identical crime at around the same time — based on nearly identical forensic analysis — but was exonerated because the forensic evidence was so flawed. The Pecos County prosecutor who requested Willis' exoneration determined that the arson analysis was wrong because it relied on outdated and inaccurate forensic techniques. Willis was determined to be “actually innocent” and was compensated by the state of Texas.

The filing also noted that thousands of Texans are convicted of arson, and that the commission's investigation could help determine whether accurate, reliable forensic analysis is being used statewide. The Forensic Science Commission voted unanimously to move forward with an investigation comparing the Willis and Willingham cases and, by extension, determining whether there may be broader problems with other arson convictions.

This is the kind of work the Legislature had in mind when it created the commission. The legislation creating the commission passed in 2005, in the midst of the Houston Police Department crime lab scandal. Many legislators cited problems in the lab when debating whether to create the commission, and they also made it clear that we needed an independent commission to investigate other forensic issues that may come up.

And:

By looking at how outdated science was used in the Willis and Willingham cases, the Forensic Science Commission can determine how often this might have happened in other cases — and how we can be sure it doesn't happen in the future. That's not a political consideration or a mechanism for reviewing the death penalty. It's a critical safeguard for ensuring that our system of justice is accurate and reliable. It's what the state Legislature wanted when it created this commission, and it's what we must ensure the commission can continue doing.

The Star-Telegram also carries the OpEd, "What's the real agenda behind the Willingham brouhaha?" by Jane Jacobs, a Corsicana Daily Sun reporter.

When I moved back to Corsicana, I figured my dealings with the "big boys" in big media were over. I worked at a major metro daily once, and it was swell, but I was glad to get out, away from the office politics, the pressure and the big-city traffic.

But here I am, being attacked by the fellers at The New York Times, Chicago Tribune and any number of Web sites.

The reason is the Willingham story — an ongoing saga that lives on and on, like Elvis on crack.

Honestly, I don’t feel one way or another about Todd Willingham’s guilt or innocence. I wasn’t living here at the time of the fire or the trial. I never spoke to him and only learned his name this year.

I have spoken to the local investigators and a few witnesses, but I haven’t attempted to retry him, nor shall I.

You wouldn’t believe how weird this whole thing has gotten, though. If I write an article, I can expect a dozen or more e-mails and phone calls from around the country telling me that I’m either an ignorant country hick or a hero. If I don’t write an article, I’m still going to get two or three a week.

I can’t imagine what the people actually involved are enduring, but they have my sympathy.

However, questions have been asked about our coverage, so here are some answers:

No, the paper and I don’t have a bias, we have limited coverage. We write about Navarro County. The people we cover may have a bias, but it’s a legitimate one — and it’s just as legitimate as the one held by folks in New York, Chicago, Austin and Dallas. I suspect the reason people are calling us biased is because we’re not reporting their preferred bias.

I haven’t spoken to the arson expert, Craig Beyler, because he doesn’t return my phone calls. Same for Gov. Rick Perry and Willingham’s family and a dozen other people. The guy from The New Yorker quoted several people I didn’t because people evidently return his phone calls. Go figure.

Why haven’t we spent more time on such a big story? Because people in Navarro County have lives, and we go out and write about the stuff that affects them, such as what’s going on at City Hall and the local schools. This would not be a good local newspaper if all we wrote about was Todd Willingham.

And:

Perhaps one day we’ll write an article saying that Todd Willingham was wrongly executed. But I’d like to wait until it’s an actual fact, and not just what some people feel, you know, deep down, in a special kind of way, where it really matters to them and their pet psychics.

Ideally, more credit would be given to science, logic and the justice system than to emotional hand-wringing, politics and accusations.

But what do I know? I’m just an ignorant country hick.

Earlier coverage begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Tribune

The Texas Tribune goes live next week on November 3, so I'm adding it to the Texas news links.  Earlier coverage of the Trib's startup is here.

Florida Revises Death Penalty Jury Instruction

"Fla. justices respond to death penalty confusion," is the title of Bill Kaczor's AP report, via the Miami Herald.

The Florida Supreme Court revised standard jury instructions for death penalty cases Thursday in ways the justices hope will reduce widespread confusion among jurors disclosed by an American Bar Association survey.

An ABA team studying Florida's death penalty process three years ago found large percentages of jurors misunderstood the law and their role in deciding death cases.

About 35 percent didn't realize they could consider any evidence - not just examples cited in the instructions - that would mitigate against a death sentence. More than 36 percent wrongly believed they had to recommend death if they found a defendant's crime was "heinous, vile or depraved."

Also, 25 percent had the misconception they must recommend death if they thought a defendant would be a future danger to society. In reality, that's a factor they cannot consider.

The justices wrote in an unsigned unanimous opinion that such confusion was "a cause for concern."

The high court accepted recommendations from its steering and criminal jury instructions committees, including some also suggested by the ABA team.

"It is encouraging and certainly this is a step in the right direction," said ABA team member Mark R. Schlakman, senior program director at Florida State University's Center for the Advancement of Human Rights. "But there is more work to be done."

The justices acted six weeks after lawyers, current and retired judges, and a former death row inmate criticized Florida for ignoring the ABA team's 2006 recommendations during a forum at Florida State.

And:

One new instruction says jurors should not be influenced by racial or ethnic bias, but the justices rejected an ABA recommendation to also order that jurors report evidence of discrimination in their deliberations.

"We agree, of course, that racial discrimination has no role in the jury deliberation process, but we are hesitant to craft any special instructions in this area without first being presented with specific proposals" by the Supreme Court committees, the justices wrote.

They added they may be open to such an instruction in the future.

By a 4-3 split the justices also rejected proposals for juries to fill out two special verdict forms showing whether they found a defendant guilty of premeditated or felony murder - both punishable by death - and explaining why they recommend a death sentence.

A defendant who didn't actually kill someone can be convicted of felony murder if he or she participated in a felony that resulted in death.

The majority wrote that premeditated or felony murder forms could result in even more juror confusion. They added that judges still could have juries fill out such forms but declined to require them.

Juries must unanimously decide guilt or innocence, but they can recommend death by a simple majority vote. Sentencing is up to judges, but they must give great weight to jury recommendations.

The Court's order is here.  Earlier coverage from Florida begins with this post; more on the FSU Forum, here.

Arkansas State Supreme Court Upholds Lethal Injection Law

The Arkansas Supreme Court ruling in Arkansas Department of Correction v. Frank Williams, Jr. (08-1031) is in Adobe .pdf format.

"Ark. Supreme Court upholds lethal injection law," is Andrew DeMillo's AP report via the Pine Bluff Commercial.

The Arkansas Supreme Court on Thursday ordered a lower court to lift an injunction halting a death row inmate's execution, upholding a state law aimed at stopping his lawsuit challenging Arkansas' lethal injection procedures.

In a unanimous ruling, justices sided with the state and dismissed a death row inmate's complaint challenging a new law codifying Arkansas' execution procedures.

Federal public defenders filed the lawsuit on behalf of Frank Williams Jr., a death row inmate who had faced an execution date in 2008. His lawyers argued Arkansas' prison system failed to follow a rule requiring public hearings and notice when agencies change their policies.

The state Legislature passed a law earlier this year exempting execution procedures from the law.

Chief Deputy Attorney General Justin Allen said it would take a few weeks before the attorney general's office would be able to ask Gov. Mike Beebe to schedule an execution date for Williams. A call to the federal public defenders office Thursday morning was not immediately returned.

And:

In the opinion issued Thursday, justices agreed with the state that the act would not be retroactive because it would apply to anyone awaiting execution, regardless of the date of their conviction.

"Williams was sentenced to death for his crime, and Act 1296 did not change either his criminal liability or his sentence," Justice Jim Gunter wrote in the court's ruling. "Thus, there was no need for the General Assembly to state that the Act may be applied retroactively, because the act will not be retroactively applied but will instead apply to all executions held after the Act's enactment, including Williams's."

The Arkansas News Bureau posts, "Court clears way for Williams execution; AG in no rush," by John Lyon.

The state Supreme Court today ordered a lower court to dismiss a lawsuit that had effectively put executions on hold in Arkansas.

In a unanimous decision, the state’s highest court ruled that Frank Williams Jr.’s lawsuit against the Arkansas Department of Correction is moot and directed a Pulaski County circuit judge to dismiss the lawsuit and lift an injunction on Williams’ execution.

Chief Deputy Attorney General Justin Allen said today it may be a month or more before the attorney general’s office is ready to ask Gov. Mike Beebe to set an execution date for Williams. Allen said Williams could ask the state Supreme Court to reconsider its ruling or he could ask the U.S. Supreme Court to hear his case.

Jennifer Horan of the federal public defenders office in Little Rock said the office would have no comment on today’s ruling.

Williams, sentenced to die for the October 1992 slaying of Lafayette County farmer Clyde Spence, filed his lawsuit last year. He alleged the Department of Correction failed to comply with the Arkansas Administrative Procedures Act when it adopted rules regarding lethal injection without subjecting the rules to public review and accepting public comments, as required by the act.

And:

In its opinion today, the Supreme Court said retroactivity is not an issue.
“There was no need for the General Assembly to state that the act may be applied retroactively, because the act will not be ‘retroactively’ applied but will instead apply to all executions held after the act’s enactment, including Williams’,” Justice Jim Gunter wrote in the opinion.

Because it found that the law applies to Williams and renders his lawsuit moot, the court said it did not need to consider his other arguments.

And:

Williams and three other death-row inmates have an appeal pending before the 8th U.S. Circuit Court of Appeals that challenges the constitutionality of lethal injection in Arkansas, but no stays of execution have been imposed in that case, Allen said.

The case was heard earlier this month; coverage is here.

In Ohio

"Attorney general wants stay of execution lifted," is the title of Bobby Clarke's report for the Warren Tribune Chronicle. 

The Ohio attorney general has filed a motion with the U.S. Sixth Circuit Court of Appeals that seeks to lift a stay on the Dec. 8 execution of local death row inmate Kenneth Biros.

The motion filed Tuesday states that Gov. Ted Strickland already has the power and has in fact delayed other executions until Ohio develops a suitable protocol for executions by lethal injection. And an assistant attorney general also points out that Biros' attorneys have never made any claim that they are ''likely to succeed on the merits'' of their case - required criteria for a preliminary injunction.

Trumbull County Prosecutor Dennis Watkins has remained confident that Biros can be executed on time despite the stay earlier this month.

And:

The stay that Attorney General Richard Cordray wants to eliminate came after the Sept. 15 botched execution of death row inmate Romel Broom, which was also delayed by a federal judge until a back-up or alternative method of lethal injection could be designed.

Strickland has postponed until the spring the executions of two other men who were scheduled to die before Biros, Lawrence R. Reynolds Jr. and Darryl Durr. The state is considering ways to adjust its death chamber procedure after technicians couldn't locate suitable veins on Broom through which to administer lethal drugs.

''The constitution shouldn't protect him (Biros) from some pain,'' Watkins said.

AP distributed, "Ohio can't find doctors to offer execution advice," on Tuesday.  The report was written by Andrew Welsh-Huggins.

Ohio was on track this year to execute a record number of inmates. One botched execution and several lawsuits later, the death penalty is temporarily on hold.

The latest challenge: The state can't find medical professionals willing to advise it on the best way to put condemned inmates to death because of ethical and professional rules.

The rules — which generally prohibit doctors, nurses and others from involvement in capital punishment — are deterring those professionals from speaking publicly or privately about alternatives to the state's lethal injection process, Attorney General Richard Cordray said in a court filing.

"A small number of promising leads have emerged, but identifying qualified medical personnel willing and able to provide advice to the State regarding lethal injection options continues to be challenging and time-consuming," Cordray said in the Friday filing in U.S. District Court.

Executions have stopped while the state develops new injection policies following a Sept. 15 execution that was halted because the inmate had no suitable veins.

The state has reached out to judges, police and lawmakers for help in trying to find medical professionals willing to talk to the state, according to the filing written on Cordray's behalf by Charles Wille, head of Cordray's death penalty unit.

Cordray also said five lawmakers he didn't identify have agreed to try to find medical staff to help.

The state has a two-year, $33,200 contract with just one doctor, Mark Dershwitz of Massachusetts, a lethal injection expert who frequently testifies on behalf of states in lethal injection cases.

Dershwitz, an expert witness for Ohio at a March trial challenging the state's injection system, is the only doctor the state is currently talking to, said Julie Walburn, a prisons department spokeswoman.

Missouri encountered a similar problem in 2006 after a federal judge ordered the state to revamp its execution procedures, including using a board-certified anesthesiologist.

The Corrections Department met with resistance from anesthesiologists wary of crossing an ethical line that could cost them their practice.

The American Medical Association prohibits its members from participating in executions, including anything that would "contribute to the ability of another individual to directly cause the death of the condemned."

"The role of a physician is that of healer," Dr. Rebecca Patchin, the AMA board chairman, said Monday. "To be involved in capital punishment in any manner, even in an advisory capacity, undermines that role."

At Jurist, Virginia Sloan, President of the Constitution Project, writes, "Recent stay of execution signals problems with capital punishment in Ohio."

The recent uproar surrounding Ohio's failed attempt to execute Romell Broom, who was convicted of murdering Tryna Middleton, highlights the continuing problems with lethal injection in Ohio, and elsewhere around the country. If the state is to continue using the death penalty, the state must comply with the "quick and painless" standard mandated by Ohio state law, as well as the mandates of the US Constitution. Executions must not resume unless the state is able to guarantee that execution teams are properly trained to carry out their purpose and that a contingency plan is in place to address unexpected problems, including when – as was the case with Romell Broom - peripheral vein access becomes difficult or impossible.

The September 20th fiasco is the most recent of several botched executions in Ohio, which uses the controversial "three-drug cocktail" lethal injection. The executions of Joseph Clark in 2006, and that of Christopher Newton the following year, were ultimately successful but were delayed significantly because of difficulties in locating veins suitable for injection, an increasingly evident and inherent flaw in lethal injection protocols around the country. Following the Clark and Newton executions, Ohio officials vehemently defended the state's execution procedures and dismissed any need for improvements. The failed attempt to execute Mr. Broom on September 20th clearly demonstrates otherwise.

The recent stays of execution granted to Mr. Broom and Ohio death row inmates Kenneth Biros, Darryl Durr, and Lawrence Reynolds, are a step in the right direction. It is now clear that a thorough review must take place before the state decides whether to resume executions.

And:

The problems with capital punishment, including those in Ohio, are of concern not just to opponents of capital punishment. In 2005, the Constitution Project's bipartisan, blue-ribbon committee of death penalty supporters and opponents released Mandatory Justice: the Death Penalty Revisited [PDF file], an update to the 2001 ground-breaking report Mandatory Justice: Eighteen Reforms to the Death Penalty [PDF file]. Both addressed the profound risk of wrongful convictions and executions created by the country's capital punishment system, and crafted consensus recommendations for a variety of urgently-needed reforms. To learn more, please visit the Constitution Project's Death Penalty Committee.

Earlier coverage from Ohio begins here.

Wayne Slater's Conversations With Religious Leaders

The senior political writer of the Dallas Morning News has talked to a wide array of Texas religious leaders in, "Texas Faith: Are Texans immoral for supporting the death penalty?"  It appears at the Morning News Religion blog, and it's an absolute must read.

The storm over the Cameron Todd Willingham case has focused public attention on the death penalty and stirred debate in the Texas governor's race. Willingham was executed in 2004 for setting a fire that killed his three children. He maintained until his death that he was innocent, and evidence in the case presents a mixed picture. Several independent experts have challenged whether it was arson. The governor and the prosecutor are confident he was guilty.

In Texas, more than 400 people have been executed since capital punishment was reinstated by the Supreme Court in 1976. Ours is the busiest death chamber in the nation - and Texans overwhelmingly back the death penalty. Polls indicate that nearly three-quarters of Texans support capital punishment.

What is the moral dimension?

Here are several brief excerpts from Slater's extensive post:

JOE CLIFFORD, Pastor of First Presbyterian Church of Dallas

Jesus was once asked his opinion on the death penalty when a woman was caught in adultery, a capital offense in his day. (I've always wondered where the man was in this story!) Jesus responded, "Go ahead and stone her ... just let the one who is without sin cast the first stone." No one could; which is to say no one is moral enough to impose the death penalty.

Having said that, I could not tell the relatives of a murder victim they are immoral because they support the death penalty for the person who killed their loved one.

GEOFFREY DENNIS, Rabbi Congregation Kol Ami in Flower Mound

The Talmud understands the unique nature of capital punishment, that it is a penalty which, wrongly administered, cannot later be corrected or compensated. Given the now-well-documented record of false convictions in Texas, it seems to me the moral response is to suspend all executions until a fairer, bettered safe-guarded, radically reformed system can created. Which, the way things go, means an end to the death penalty for the foreseeable future.

CYNTHIA RIGBY, Professor of Theology, Austin Presbyterian Theological Seminary

I know my response to this question will be controversial, but I believe capital punishment is immoral. As a Christian believer, it is my conviction that God is a God of justice, but that the justice of God is grounded not in a literalistic "eye for an eye," but in God's grace and God's mercy. (Interestingly, btw, a strong case can be made that the "eye for an eye" rule of the Old Testament was not as much about demanding equitable retribution for crimes that had been committed, but for protecting the perpetrator from being OVERPENALIZED for his or her crime. In other words, if one person puts out the eye of another, the most that can be taken from the guilty one is an eye - not both eyes, not a leg, not a life, but "only" an eye).

While I am tempted to launch into a lengthy theological discourse about the relationship between justice and mercy in various New Testament texts, let me spare everyone and instead put forward two "scenes" from my own heritage and life that have fed my reflection on the death penalty.

LARRY BETHUNE, Senior Pastor University Baptist Church, Austin

I cannot speak from other religious points of view, but from a New Testament Christian point of view, the death penalty is immoral. It has no place in a tradition which emphasizes grace, mercy, and healing from violence. At the heart of the Christian message is the belief that no person is beyond redemption in the eyes of God. Vengeance belongs to God alone, and the justice of God is filled with mercy. The death penalty demeans the society which uses it and the persons required to apply it.

Related posts are in the religion category index.  The Pew Forum on Religion & Public Life has an excellent death penalty resource page.  It includes the full transcript of the Forum's 2002 conference at the University of Chicago School of Theology, "A Call for Reckoning: Religion and the Death Penalty."

How Do You Rectify the Ultimate Mistake?

That's the title of Gerry Gamel's signed editorial in the Mason County News.  LINK

Let's be clear at the outset - I am an advocate of the death penalty. I believe that some crimes are so heinous, so evil, that the only punishment that is appropriate is the ending of that life.

Let me also clarify that, though I've served on a number of juries, I've never been asked to make that determination, and I know that it would be difficult to offer up the death penalty if I did not feel absolutely certain it was the right punishment.

Recent events in Texas have also highlighted another problem with the death penalty.... What happens if you put someone to death, then find out you may have been in error?

That is the question that faces Governor Rick Perry. An investigation was scheduled to begin reexamining the evidence in the case by the Texas Forensic Science Board; but, the Governor dismissed the sitting members only days before they were to begin.

Everyone who has examined court transcripts agree that Cameron Todd Willingham had his share of problems. He was not an ideal husband. He was not a great father. To my knowledge, there are no laws in Texas to punish someone for those offenses.

And:

And now, years later, and five years after Cameron Todd Willingham was executed for the murder of his three children, fire experts from all over the state and nation have stood up to say a mistake was made.

They have used forensic science to discount the arson allegation, and now point to an electrical fire that was the most likely culprit. An accident.

Governor Perry's office received a report from Willingham's defense counsel prior to the execution date, presenting this new evidence and asking for a stay of execution. The Governor's office failed to act, and Willingham died by lethal injection, as scheduled.

What happens when you kill someone that may have actually been innocent? Do you dismiss the people investigating the case? Do you refer back to the bad behavior of the defendant, outside the specifics of the case? Do you refuse to accept the truth so that you can sleep at night?

Apparently, in Austin, that's exactly what you do.

If a mistake has been made, the family of Cameron Todd Willingham deserves to know that he was innocent. It's too late to rescue his life; but, it's never too late to rescue the truth, whatever that may reveal.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Charges Dismissed in Yogurt Shop Case

That's the title of a post at the Austin American-Statesman Austin Legal blog written by Steven Kreytak.  LINK

Travis County prosecutors moved to dismiss the murder indictments against the two remaining defendants in 1991 yogurt shop murders after announcing in court today that they are still looking for the person whose DNA was found last year in one of the four teenage victims.

Assistant District Attorney Efrain De La Fuente said in court that the decision came because state District Judge Mike Lynch has ordered that a continuance in the case to conduct further DNA testing would not be considered.

“We are still testing,” he said.

The packed courtroom was quiet after Lynch ordered the dismissals. Defendants Michael Scott and Robert Springsteen, who were once both convicted in the case, hugged their lawyers and supporters in court.

Outside, lawyers for the defendants called on authorities to find the real killers.

“Those men that did this back in 1991, they left DNA in there,” said Scott lawyer Carlos Garcia. .”And I don’t know if those guys are still alive …but we have your DNA and sooner or later we are going to match your face to it.”

Springsteen lawyer Joe James Sawyer said that he and his client believe that it is the families of the slain girls who have suffered the most.

“We should reserve our sympathy for the families of those girls,” Sawyer said. “That is paramount.”

Scott, gripping his wife’s hand, was reserved outside court.

“This has been a long time in coming,” he said. “I’m happy to be here.”

At a press conference following the hearing, Travis County District Attorney Rosemary Lehmberg issued a statement that said in part: “Make no mistake, this is a difficult decision and one I would rather not have to make. I believe it is the best legal and strategic course to take and is the one that leaves us in the best possible posture to ultimately retry both Springsteen and Scott.”

And:

In June, Lynch released the men from jail on their own recognizance after prosecutors said they wanted more time to identify the source of male DNA found in vaginal swabs taken from victim Amy Ayers, 13. The DNA did not match either defendant or previous co-defendants.

Prosecutors have not yet determined whose DNA that is, according to defense lawyers who have been kept apprised of the testing.

In a strongly worded order in written in August, Lynch said that the lawyers in the case must announce they are ready for trial today. “Extreme circumstances would be required to obtain a continuance,” he wrote.

If either party announces they are ready for trial and later asks for more time, Lynch wrote, “it would be a violation of this order” if there was no new reason for the continuance request.

Today’s hearing is the latest critical juncture for a case that has taken many turns since Dec. 6, 1991, when the bodies of Ayers, sisters Sarah and Jennifer Harbison, 17 and 15, and Eliza Thomas were found, each bound with their own clothing and shot in the head, at the I Can’t Believe It’s Yogurt Shop on West Anderson Lane.

In 1999, Scott and Springsteen confessed. Their lawyers later said those confessions were coerced under psychological pressure and lengthy interviews by police. Both were convicted but those convictions were overturned when the Texas Court of Criminal Appeals found that Scott’s confession was improperly used at Springsteen’s trial and Springsteen’s confession was improperly used at Scott’s trial.

Earlier coverage begins with this post.

Chronicle Sues Governor

"Chronicle sues Perry over clemency report," is the title of R.G. Ratcliffe's report in today's Houston Chronicle.

The Houston Chronicle and Hearst Newspapers LLC are suing Gov. Rick Perry in an effort to force the release of a clemency report Perry received before denying a stay of execution to Cameron Todd Willingham.

The report is a summary and status of the case against Willingham that was given to Perry at 11:30 a.m. on the day of Willingham's 2004 execution in the fire deaths of his three daughters. Anti-death penalty advocates say modern fire forensics show the blaze cannot be proven as arson.

Perry's office has refused to release the report, claiming it is a privileged document. The clemency document was used by Perry in the process of deciding whether to give Willingham a 30-day stay of execution.

“When it comes to human life, there is no place the governor should be more transparent in his decision-making,” said Jonathan Donnellan, an attorney for Hearst and the Chronicle.

“It should raise eyebrows that the governor is seeking to shield communications with his advisers as ‘legal advice,' when the very idea of executive clemency power is to make a policy decision after the legal process has run its course,” Donnellan said.

Willingham was put to death shortly after 6 p.m. on Feb. 17, 2004, just 88 minutes after the Governor's Office received an expert's report that the fire that killed Willingham's children could not be positively attributed to arson. It is unknown whether the report by Perry's general counsel included any mention of the arson controversy in the Willingham case.

In a statement e-mailed to the Chronicle, Perry spokeswoman Allison Castle said, “Todd Willingham was convicted and sentenced to death by a jury of his peers for murdering his three daughters, and that conviction was upheld by Texas courts and nine times by federal courts including four times by the U.S. Supreme Court. The governor reviewed all the facts in this case and agreed with jury and the courts that Willingham was guilty of murdering his three daughters. Our office has fully complied with the public information act.”

The Attorney General's Office has previously ruled that the specific documents that the Chronicle is referencing are not subject to disclosure under the Public Information Act.

Earlier coverage begins with the preceding post.

More on the State of Willingham Forensics

"Techniques used in Willingham case now seen as outdated," by Dave Montgomery appeared in the Sunday Dallas Morning News.

As a key witness in the capital murder trial of Cameron Todd Willingham, then-Deputy State Fire Marshal Manuel Vasquez testified that the fire that killed the defendant’s three daughters was "a crime of arson."

"In your opinion, could this fire have been started accidentally?" Vasquez was asked.

"No sir," he replied. "It was not accidental."

Seventeen years later — and five years after Willingham was executed in connection with the case — nine fire experts have raised the possibility that the blaze may have indeed been accidental, citing revised standards in arson investigations.

Some circumstances in the Willingham case were similar to those in the case of Ernest Ray Willis, who was convicted of setting a 1986 fire that killed two sleeping women in the small West Texas town of Iraan. Willis, who spent 17 years on Death Row, was released in 2004 after then-Pecos County District Attorney Ori White dropped the murder case after an inquiry that strongly suggested that the fire was an accident. Authorities were also accused of concealing evidence and giving Willis anti-psychotic drugs that left him dazed during his trial.

"The science of arson investigations was very different in the late 1980s than it was in the late 1990s," said White, who is now Pecos County attorney. "The scientific evidence exonerated him, and that’s why I dismissed the case."

The fire marshal’s arson finding was the dominant element in the prosecution’s case against Willingham, an unemployed mechanic who denied setting the blaze. Retired Judge John H. Jackson, who, as assistant district attorney at the time, prosecuted the case, said the finding unquestionably showed that the fire was deliberately set, despite "paper experts" who are now challenging the findings. Waco attorney David Martin, who represented Willingham and has since said he believes that his client was guilty, says an expert for the defense also concluded that the fire was arson.

But Craig Beyler, a fire scientist hired by the Texas Forensic Science Commission to review the case, has concluded that an arson finding "could not be sustained," saying Vasquez, who died in 1994, used concepts that "are often inconsistent with modern fire science."

The arson investigation into the Willingham case was conducted before the 1992 publication of what has since become the standard for arson science: NFPA 921, a Guide to Fire and Explosion Investigation, published by the National Fire Protection Association. Vasquez and Douglas Fogg, then assistant fire chief for Corsicana, cited more than 20 indicators to conclude that the fire was intentionally set. But several of those indicators have since come under question in light of the newer standards in NFPA 921.

Among them:

"Crazed glass," a weblike pattern earlier assumed to be caused by use of a liquid accelerant. Now it is also attributed to the rapid chilling of hot glass by water from fire hoses.

"Pour patterns," "trailers" and "puddles," markings suggesting that someone dumped accelerant. A "post-flashover fire" — which spread from single objects to engulf an entire room, reaching temperatures of more than 2,000 degrees — can also produce floor burn patterns that cannot be distinguished from those caused by liquid accelerants.

Multiple points of origin, which can indicate that a fire was deliberately ignited. But other causes, such as embers or drop-down burning, can produce the same effect, experts say.

Gerald Hurst, an Austin arson expert, also challenged the fire marshal’s investigation in a report that Willingham’s appeals attorney submitted to Gov. Rick Perry in 2004 in an unsuccessful bid to delay Willingham’s execution.

"On first reading, a contemporary fire origin and cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence," Hurst said. "However, when the report is looked at in the context of its time and in light of a few key advances that have been made in the fire investigation field in the last dozen years, it becomes obvious that the report more or less simply reflects the shortcomings in the state of the art prior to the beginning of serious efforts to introduce standards and to test old theories that had previously been accepted on faith."

Corsicana, in a response to Beyler’s report, noted that NFPA 921 wasn’t published until after the fire and Willingham’s trial and may not have been "universally acknowledged" until the late 1990s.

Today's Star-Telegram reports, "Corsicana questions state commission's jurisdiction in 1991 arson case," also by Montgomery.

Corsicana officials are questioning the Texas Forensic Science Commission’s inquiry into the arson investigation that led to the 2004 execution of Cameron Todd Willingham, saying the 4-year-old panel lacks the jurisdiction to the delve into the 1991 house fire that killed Willingham’s three children.

In another development Tuesday, Willingham’s stepmother challenged statements from his ex-wife, who said in a lengthy written account to the Star-Telegram that her former husband was guilty of setting the fire.

"I think she is not being truthful," said his stepmother, Eugenia Willingham of Ardmore, Okla. "I know Todd never confessed to her.  . . . Those were the only grandkids I had, and he would not take them from me."

But ex-wife Stacy Kuykendall said Tuesday in an e-mail that she stands by her statements over the weekend: "I wrote nothing but the truth. This man murdered my daughters and I am sick of people defending him."

In a previously unpublicized Oct. 5 letter to the forensic science commission, Corsicana City Attorney Terry Jacobson said the 2005 statute that created the agency "does not appear to give the Commission the authority to retroactively investigate forensic evidence" that is 18 years old.

However, Sen. John Whitmire, D-Houston, a leading sponsor of the legislation, said it gives the agency broad latitude to investigate forensic issues and does not preclude the inquiry into the Willingham case.

"I don’t think they’re prohibited from doing anything they want to do," said Whitmire, chairman of the Senate Criminal Justice Committee. The commission’s former chairman, Sam Bassett of Austin, also defended its jurisdictional authority in the case.

Whitmire’s committee has scheduled a Nov. 10 hearing to review the forensic science commission. Whitmire ordered the hearing after Gov. Rick Perry shook up the panel’s membership, stirring accusations that he was attempting to gut it to slow its inquiry into the Willingham case.

The Sunday Dallas Morning News reported, "Records: Willingham's innocence in fire unclear." This lengthy article is written by Steve McGonigle, Brooks Egerton and Gary Jacobson.

Willingham's 17-year-old case has suddenly become a popular symbol for those who wish to proclaim the brutality and unfairness of Texas capital punishment. National television networks have covered it in the last few weeks. The Sept. 7 issue of The New Yorker asked, in a story about Willingham, "Did Texas execute an innocent man?"

Substantial questions have been raised about Willingham's guilt. But so have serious questions about his claims of innocence.

Willingham was convicted in August 1992 of setting a Corsicana house fire that had killed his three young children two days before Christmas. He was executed in the Texas death chamber on Feb. 17, 2004.

Before and after his execution, several experts in fire science concluded that, based on the physical evidence, there should have been no finding of arson – and thus no guilty verdict.

Barry Scheck, co-director of the Innocence Project, a nationally known legal clinic devoted to exposing wrongful convictions, recently declared: "There can no longer be any doubt that an innocent person has been executed."

A review of trial testimony and investigative records shows that reality is far murkier – that Willingham, while never wavering in his denial of wrongdoing, did much that tended to incriminate him.

And:

The first scientific challenge to the arson finding did not surface until shortly before Willingham's execution.

Gerald Hurst, a Cambridge-educated chemist from Austin, began researching the fire evidence after being recruited in January 2004 by Patricia Ann Cox, a Willingham cousin. Hurst finished his report four days before the scheduled execution on Feb. 17.

His affidavit, filed in the trial court, said "most of the conclusions" reached by fire marshal Vasquez "would be considered invalid in light of current knowledge" in the fire investigation field. It said the finding of multiple origins – a persuasive sign of arson – "was inappropriate even in the context of the state of the art in 1991."

Hurst did not express an opinion about what caused the fire in the affidavit. However, in a letter sent to Perry on Feb. 13, 2004, requesting a 30-day reprieve for his client, Willingham's attorney stated "Dr. Hurst's opinion is that the fire was not intentionally set."

The Texas Court of Criminal Appeals, the 5th U.S. Circuit Court of Appeals and Perry also were presented with Hurst's report and declined to take steps to stop or delay Willingham's execution.

Cox, a nurse who lives in Ardmore, said one of Perry's assistant general counsels told her the day after the execution that the governor had decided that granting Willingham a stay "would just be delaying the inevitable."

Ten months after Willingham's death, the Chicago Tribune wrote a lengthy article that questioned the arson finding. The story relied in part on the opinions of Hurst and three additional fire scientists, each of whom called the original investigation flawed.

The Innocence Project followed in 2006 with a report by one of the Tribune's experts and four other scientists who found the Willingham fire was not arson.

Gary Jacobson posted, "'Unofficial rules' limited fire expert availability," as an addendum to the above report, Monday afternoon at the Dallas Morning News WatchDog blog. 

One question from Todd Willingham's 1992 trial is whether the defense could have found a fire expert in Texas to rebut the arson findings of investigators Manuel Vasquez and Doug Fogg?

At the time, the one expert defense attorneys approached agreed that is was arson.

During our reporting on the Willingham story that ran Sunday, we asked that question of Mark Goodson, a Denton engineer who was interviewed about reviewing the Willingham case by the Texas Forensic Science Commission, which eventually chose Craig Beyler.

Goodson's email response:

"There were experts in Texas in 1992 who could have rebutted the testimony of Mess'rs. Vasquez and Fogg. But, please read the phrase 'there were experts' carefully. While there were experts with this knowledge, many of them worked in public sector agencies, for which there were unofficial rules preventing testifying for the defense. Thus, while the many experts were out there, some were truly not available to testify for a defendant. If they did, their supervisor would receive a call from a most unhappy District Attorney, upset that there was an out of town interloper who was now helping a defendant."

Earlier coverage begins with the preceding post.

What Stacy Kuykendall Said

On Sunday, the Fort Worth Star-Telegram reported, "Stacy Kuykendall's statement about the 1991 fire."

Stacy Kuykendall, the ex-wife of Cameron Todd Willingham, offers her first detailed account of the 1991 fire that claimed the lives of her three daughters and led to Willingham’s execution in 2004. “Todd set our house on fire then stood outside and watched it burn,” Kuykendall asserts, saying she agrees with Gov. Rick Perry’s portrayal of her husband as “a monster.” Here is the full statement:

On October 18th I read that David Grann said that the Chicago Tribune reporters, Steve Mills and Maurice Possley, tracked me down and interviewed me about my ex-husband and if he in fact confessed to me. He wrote that I firmly said that Willingham had never done so. I have never been formally interviewed by any reporters. Mills, Possley and Grann have all come to my home uninvited to ask me questions about my ex-husband. I told them all that I no longer believe that Todd was innocent, that he did murder my daughters and I did not want to talk about that which had to deal with him. I was asked why I didn’t believe that he was innocent and my response was, after reading statements, mainly Todd’s, that first of all, he gave conflicting stories of what happened the day of the fire and secondly after visiting with him on death row that he was guilty. I was asked what was said the day I visited with my ex-husband. I told them that I believed that was personal and would not respond to the question. I asked them repeatedly to leave my property. 

And:

For all of this to be brought up again has been extremely painful for me and my family. How many more times do we have to see in detail that burned house were my daughter died! I have carried this pain for 18 years now and will for the rest of my life. I can say that I am a very strong women but having to listen to this every day again is starting to take its toll on me. I pray daily for my babies to have some peace and my family to stop being harassed.

Governor Rick Perry called Cameron Todd Willingham a "monster" and indeed he was. Nightline ran story titled "A Life Cut Too Short." There were three life's cut too short and their names are Amber Louise, Karmon Diane and Kameron Marie.

David Grann posts, "Stacy Speaks," for the New Yorker's News Desk blog.  

The case of Cameron Todd Willingham, who was executed in Texas in 2004 and whom I wrote about for The New Yorker last month, has taken another strange twist. Yesterday, Willingham’s former wife, Stacy Kuykendall, released a statement to the Fort Worth Star-Telegram saying that he secretly confessed to killing their three daughters, who died in a fire on December 23, 1991. Her statement directly contradicts numerous previous statements she has made: in interviews with police and fire investigators; in testimony during the trial; in letters to public officials and Willingham’s lawyers; and in her comments to the press.

And:

On February 8, 2004—the very day that Ronnie Kuykendall claimed his sister had told him that Willingham had confessed—the Corsicana Daily Sun published an interview with Stacy Kuykendall. She said that during her visit with Willingham in prison, he maintained that the fire was accidental and that their daughter Amber had likely caused it:

Willingham laid out the same theory to Kuykendall that he suggested during the Daily Sun interview—that Amber had accidentally set the fire. He said that he woke up to her cry of “Daddy, Daddy.” Willingham said he woke up and saw smoke hovering a few feet above him, then jumped up from the bed where Amber’s body would later be found, put on his pants and ran to the kids’ room where all he could see was fire. Willingham said that he never encountered Amber in those initial moments and theorized that Amber had left the kids’ room via a hall that led both to the front door and to another entrance to his bedroom and that’s how he missed her.

In that article, Kuykendall made it clear that she did not believe Willingham’s version of events. But she never mentioned a confession. While I was reporting my New Yorker article, I tried to talk to Stacy Kuykendall, but she said that she no longer wanted to discuss the case. I did ask her if she stood by her statements to the Tribune and to the Daily Sun. She said, “If I said it, then it’s true.”

In the course of reporting my story, I also spoke to John Jackson, who prosecuted Willingham. He spoke about the contradictions between Kuykendall’s public statements and her brother’s affidavit. “She’s given very different stories about what happened on this particular day right up to the date of his execution,” Jackson said. “It’s hard for me to make heads or tails of anything she said or didn’t say.”

Steve Mills writes, "Death penalty case: Ex-wife says convicted killer confessed," for the Chicago Tribune.

Willingham went to his death proclaiming his innocence.

And over the years, she has offered differing accounts.

A Tribune investigation in 2004 showed the indicators of arson that fire officials used had been disproved by scientific advances and no longer were valid.

The first word of a confession came just before the execution, when Kuykendall's brother signed an affidavit in which he said that she told the family that, during the prison visit about two weeks before the execution in 2004, Willingham made a confession.

But in a story in the local newspaper after the prison visit, she made no mention of a confession. In fact, she told the paper Willingham stuck to his story about his actions during the fire.

In a brief interview at her home in 2004, Kuykendall told the Tribune Willingham never made such an admission. She confirmed that this year to a reporter from the New Yorker magazine.

Her statement that he confessed -- and that he said he set the fire because she threatened to divorce him -- also conflicts with other accounts that she has provided.

Eight days after the fire, in an interview with fire investigators and police, Kuykendall said that she and Willingham had not argued for at least two weeks and she made no mention of a threat the night before the fire to divorce him. 

Earlier coverage begins with the preceding post.

More Todd Willingham Commentary

I'll be catching up today with news coverage of and commentary about the Todd Willingham case since Sunday.  Let's start with an editorial and column from the Dallas Morning News.

The editorial, "What the Willingham case is really about," is from the Tuesday edition.

The ex-wife of Cameron Todd Willingham now alleges that he confessed to murdering their three children in her last death row meeting with him, shortly before his 2004 execution. At last, the truth comes out in the high-profile case of a questionable arson-murder conviction. Right?

Not so fast. Stacy Kuykendall's dramatic statement published Sunday in the Fort Worth Star-Telegram does nothing to bolster the shaky arson evidence that led to Willingham's guilty verdict. As the Chicago Tribune's Steve Mills reported yesterday, Kuykendall told a newspaper after that final visit that her ex-husband stuck by his original story. Moreover, Kuykendall's new statement contradicts earlier ones made to investigators, and under oath.

Besides, the only person besides Kuykendall who knows what was said in that conversation is dead and buried.

We're not calling Kuykendall a liar. But her published remarks over the weekend, far from bringing clarity to the confounding case, only make it murkier.

On the other side, activists claiming that Texas executed a blameless man are risking their own credibility and helping to politicize what started as a scientific search for truth.

Fire expert Craig Beyler, whose report for the Texas Forensic Science Commission challenged conclusions in the state's arson investigation, did not rule out arson. He only said that the state had fallen far short of proving its case. That's an important difference.

All along, the issue at the center of the Texas Forensic Science Commission's review of this case has been the science used to help secure a conviction. How solid were the conclusions state arson investigators drew from the evidence? This is what the commission was going to discuss before Gov. Rick Perry shamelessly thwarted the investigation by sacking commission members, putting the probe in limbo.

Morning News editorial columnist Rod Dreher writes, "Willingham case a test of Perry's character."

Gov. Rick Perry is facing a character test in the matter of Cameron Todd Willingham. So far, it's been an epic fail for the governor. And if Texans let him get away with this brazen attempt to evade responsibility, we'll be party to a grave moral failure.

First things first: If Willingham really did kill his three daughters, he deserved his 2004 date with death at Huntsville. Anyone who takes the life of another in cold blood should pay for it with his own. But being found guilty by a jury is not the same as actually being guilty of the crime – which is why I reluctantly oppose the death penalty. This is no longer the Wild West. If we are going to send a man to his death, an irrevocable punishment, the margin of error must be vanishingly small.

And:

Perry is plainly afraid that his own investigators will discover that the state likely put a blameless man to death. But what is he afraid of? Political fallout? What is mere politics when the credibility of a system that might have killed an innocent man – and might yet kill other innocents – is at issue? Our skittish governor has taken to calling Willingham a "monster." Even if he was, we put men to death for their deeds, not their dispositions. He needed killin' is no rationale for execution.

A real leader – a brave and honorable one – would want to know the truth, so that if evidence requires it, he and others responsible for Willingham's death could make restitution and repent for shedding the blood of a blameless man railroaded to his execution. If hard-hearted Perry is so certain of Willingham's guilt, why object to an investigation?

More importantly, if Willingham was wrongly put to death, all decent capital punishment supporters should want strict measures taken to ensure that this catastrophe never happens again. If we are going to have the death penalty, we have the solemn duty to use it responsibly. Right? Surely we Texans aren't the kind of people so enamored of retribution that the actual guilt or innocence of those executed in our names is of no real concern.

This is not only a problem for Rick Perry. We live in a democracy. It's on all of us. If Texas really did kill an innocent man, that's a terrible tragedy. But if Texas and its governor lack the courage to face the truth and deal squarely with it, the tragic act will be magnified by deep and lasting disgrace, and we will all stand condemned by our collective moral cowardice.

It's much harder to live with painful truths than with comforting lies. But a people who would be on the side of right have no choice.

Earlier coverage of the Willingham case begins with this post. 

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Execution

Texas carried out its 19th execution of 2009, last night in Huntsville.  It was the state's 442nd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

Michelle Mondo writes, "Condemned San Antonio murderer put to death," for the Express-News on the execution of Reginald Blanton.

Reginald Blanton, in his final words, thanked his supporters, told his victim's family that he understood their pain and decried the drugs used to put him to death.

Blanton was condemned to die for the robbery and shooting death of his acquaintance Carlos Garza, 22.

"Believe me, I shed plenty of tears behind Carlos," he said, looking towards five of Garza's relatives, including the victim's mother. "Carlos was my friend."

Irene Garza cried the moment she looked at Blanton strapped to the gurney in the death chamber at the Huntsville Unit.

Garza was flanked by her three daughters and her son's former wife.

Blanton was pronounced dead at 6:21 p.m., eight minutes after the lethal dose of drugs began flowing into his body.

According to TDCJ, six additional executions are scheduled in Texas during 2009.  Two execution dates have already been set for 2010 in Texas.

Tuesday

I'm traveling today.  Posts will resume this evening.  Visit the Daily Must Reads, Essential Law Blogs and other blogs in the left-column webroll.

Monday

I am in meetings today.  Posts will resume later today.  Please visit the Daily Must Reads and other blogs in the left-column webroll.

Juvenile Life Sentences

Oral arguments in Graham v. Florida and Smith v. Florida are scheduled for November 9.  The issue of life sentences for juvenile offenders is getting attention in anticipation of the Supreme Court's examination.

Former Republican U.S. Senator Alan Simpson wrote the OpEd, "A sentence too cruel for children."  It appeared in the Friday Washington Post.

Rather than serving in the U.S. Senate for almost 20 years, or having so many other wonderful life experiences, I could have served a longer sentence in prison for some of the stupid, reckless things I did as a teenager. I am grateful to have gotten a second chance -- and I believe our society should make a sustained investment in offering second chances to our youth.

When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone. At 17, I was caught destroying federal property and was put on probation. For two years, my probation officer visited me and my friends at home, in the pool hall, at school and on the basketball court. He was a wonderful guy who listened and really cared. I did pretty well on probation. At 21, though, I got into a fight in a tough part of town and ended up in jail for hitting a police officer.

I spent only one night in jail, but that was enough. I remember thinking, "I don't need too much more of this."

I had a chance to turn my life around, and I took it. This term, the U.S. Supreme Court will decide whether other young people get that same chance.

On Nov. 9, the court will hold oral argument in Sullivan v. Florida and Graham v. Florida, two cases that will determine whether it is constitutional to sentence a teenager to life in prison without parole for a crime that did not involve the taking of a life. There is a simple reason the criminal justice system should treat juveniles and adults differently: Kids are a helluva lot dumber than adults. They do stupid things -- as I did -- and some even commit serious crimes, but youths don't really ever think through the consequences. It's for this reason that every state restricts children from such consequential actions as voting, serving on juries, purchasing alcohol or marrying without parental consent.

The Supreme Court recognized the differences between teenagers and adults when it held a few years ago, in Roper v. Simmons, that it was unconstitutional to impose the death penalty on defendants younger than 18. Locking up a youth for the rest of his life, with no hope for parole, is surely unconstitutional for the same reasons. The person you are at 13 or 17 is not the person you are at 30, 40 or 50. Everyone old enough to look back on his or her teenage years knows this.

Simpson's OpEd also appeared in the Miami Herald and the Salt Lake Tribune.

Rafael Johnson writes, "Second Chances, for the current Newsweek.

At 17 I was captain of my high-school football team and on my way to college. But in November 1992 I went to a birthday party with friends. We were tussling around, and the chaperones threw us out. One of them knocked me to the ground, and I felt ashamed and angry. My friend had a gun in his car. I got it, came back, and fired three shots, killing one of the chaperones. I was convicted of murder and given 10 to 25 years in prison.

I grew up in an area known for gun violence and drugs. Like a lot of boys, I looked up to tough men who could fight and had been in prison. My first arrest came when I was 12: I stole my grandmother's gun and took it to school. At 14 I was sent to a boys' home. I studied hard and won a full scholarship to attend the University of Detroit high school. I excelled there, but my thinking was twisted. I didn't know how to manage my anger. As a result, a man lost his life the night of that party.

On the day I was to begin Marygrove College, I started a prison term instead. I was 18 and had hope: I could be paroled when I was still a relatively young man. I spent six of my 12 years in prison in solitary confinement. I promised myself I would read 1,000 books. I read 1,300. I became certified as a carpenter, plumber, electrician, and paralegal.

I was released from prison in 2004 after my third parole hearing. I received bachelor's and master's degrees from University of Detroit Mercy. I started a motivational-speaking and fitness-training company. As a community-reintegration coordinator, I help other ex-offenders start anew. I'm proof that people, especially teens, can't be judged by the worst thing they ever did.

And:

Next month the Supreme Court will hear oral arguments in Sullivan v. Florida and Graham v. Florida, two cases that will decide if it's constitutional to sentence teens to life in prison without parole. The court should give people like me a reason to keep improving themselves. Individuals who have committed crimes as teens should be allowed to have their sentences reviewed. Teenagers change. Adolescents, even more than adults, have enormous capacity for redemption. I know.

Earlier coverage of the issue begins with this post.

Cost: A Continuing Issue in California

Guy Kovner writes, "Is Death Row worth the cost?  25-year process at $138 million a year has some questioning 'dysfunctional' system," for the Santa Rosa Press-Democrat.

Ramon Salcido, the Sonoma Valley winery worker who slashed and shot seven people to death in 1989, probably will be in his 60s before the state of California executes him — if it ever does.

Salcido, 48, like many of the other 680 convicted killers on Death Row at San Quentin State Prison, is likely to die behind bars of natural causes, rather than the lethal injection prescribed by a jury two decades ago.

Both he and Richard Allen Davis, 55, who snatched Polly Klaas from her Petaluma bedroom in 1993, are mired in a capital punishment system that costs taxpayers about $138 million a year and yields scant results.

Executions will remain on hold at least until next year, pending resolution of legal questions about California’s three-drug death cocktail. For now, only five inmates have exhausted the labyrinthine appeals process and are eligible for execution.

At its current pace — having carried out 13 executions in the past 31 years — California would take about 1,600 years to clear the current population on Death Row.

Salcido and Davis, two of the most notorious killers in modern California history, already lag years behind the 25-year timetable for moving from conviction to execution, and no one knows when it might be completed for either man.

“If they have not been executed then justice has not been served,” said Marc Klaas, Polly’s father, who heads a Sausalito-based foundation dedicated to child safety. “The sooner my daughter’s killer is executed the better I will feel.”

And:

A state blue ribbon commission report on criminal justice last year layered economic considerations onto the long-standing moral debate over capital punishment.

Citing the 25-year delay in implementing death sentences — twice the national average — the report labeled California’s death penalty law “dysfunctional,” calling it “the law in name only, and not in reality.”

The California Commission on the Fair Administration of Justice’s 196-page report noted that Death Row swelled from seven inmates in 1978 to 670 in 2007, while just 13 were executed.

It said: “The reality is that most California death sentences are actually sentences of lifetime incarceration. The defendant will die in prison before he or she is ever executed.”

For about $126 million a year less in costs for prosecution, incarceration and handling legal appeals, California could get the “same result” by sentencing murderers to life without the possibility of parole, the report said.

The only recent Death Row fatality was Thomas Francis Edwards, killer of a 12-year-old Orange County girl in 1981, who died of natural causes in February at age 65.

“The system simply isn’t working,” said former Attorney General John Van de Kamp, who chaired the commission and now advocates doing away with the death penalty.

Confinement on Death Row costs $90,000 a year more than normal incarceration, a premium that currently totals more than $60 million a year. Compounding the financial burden is Gov. Arnold Schwarzenegger’s push to build a $400 million expansion of Death Row, which critics say will be at capacity three years after it is built.

“It’s a staggering amount of money,” said Assemblyman Jared Huffman, D-San Rafael, who is fighting the proposed expansion. “I would argue we’re getting zero value. Permanent incarceration will keep us just as safe.”

Kovner also wrote, "Passalacqua hasn't pursued death penalty."

In seven years as Sonoma County district attorney, Stephan Passalacqua has not sought the death penalty.

Execution is a punishment reserved for “the worst of the worst,” said Passalacqua, a former prosecutor who was elected the county’s top law enforcement officer in 2002.

Four men are on San Quentin State Prison’s Death Row for murders committed in Sonoma County, convicted between 1990 and 1997.

Passalacqua said his office has prosecuted about a dozen homicides during his tenure involving “special circumstance” that carry the option of the death penalty. It is the district attorney’s decision whether to pursue the death penalty in such cases.

A state commission on criminal justice said last year that invoking capital punishment adds $500,000 to the cost of a murder trial, noting that two studies put the difference at more than $1million.

“Financial issues do not play a factor” in his decisions, Passalacqua said.

Prosecutors consult with the victim’s family and defense attorney before making a decision, he said.

His office is currently weighing whether to seek death sentences against six Santa Rosa men accused of shooting a witness, Vutha Au, 24, near Jenner in March 2008.

California’s long delay between conviction and execution — an average of 25 years, the commission said — is “disheartening,” Passalacqua said.

“It does not bring finality to a victim’s family,” he said.

Passalacqua, whose second term expires next year, declined to say whether he personally supports the death penalty. “That’s a decision the voters of California would have to make,” he said.

The Sacramento Bee carried the OpEd, "Death penalty hurts only taxpayers," by Bruce Maiman in the Saturday edition.

If the state of California provides a taxpayer-funded program no one is using, is it worth keeping? So why do we still have a death penalty?

A new nationwide study puts things in stark terms: The death penalty is a waste of money.

The study was done by the Death Penalty Information Center, a nonprofit information warehouse on capital punishment that also opposes the death penalty.

The center found that death penalty costs can average $10 million more per year per state than life sentences. The increased costs result from more expensive security requirements and guaranteed access to an often lengthy appellate process. States often must assign public defenders and pay for the costs of the prosecution as well. Cases are more costly to prosecute and can take more than four times longer to try, requiring additional money for lawyers, jurors, court personnel and other related costs.

States can't afford that, so cases take longer, executions are fewer (down from a record 98 a decade ago to 40 so far this year), and inmates remain on death row longer, where their incarceration is more expensive to maintain.

Some 3,300 inmates remain on death row in the 35 states where capital punishment remains on the books.

California has 678 death row inmates. We haven't executed anyone in four years. Since 1992, we've executed 13 people. From the time capital punishment was reinstated in 1978 until 1992, we executed … no one.

A death penalty in which no one is put to death is not a death penalty; it's life without parole, just a more expensive form of it.

More on the DPIC report is here.  Earlier coverage from California is here and here.  Earlier coverage of the California Commission on the Fair Administration of Justice is here.

Arizona's Death Row

"Arizona May Put State Prisons in Private Hands," is the title of Jennifer Steinhauer's report in the Friday edition of the New York Times.

One of the newest residents on Arizona’s death row, a convicted serial killer named Dale Hausner, poked his head up from his television to look at several visitors strolling by, each of whom wore face masks and vests to protect against the sharp homemade objects that often are propelled from the cells of the condemned.

It is a dangerous place to patrol, and Arizona spends $4.7 million each year to house inmates like Mr. Hausner in a super-maximum-security prison. But in a first in the criminal justice world, the state’s death row inmates could become the responsibility of a private company.

State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row. It is the first effort by a state to put its entire prison system under private control.

The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books. Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.

“Let’s not kid ourselves,” said State Representative Andy Biggs, a Republican who supports private prisons. “If we were not in this economic environment, I don’t think we’d be talking about this with the same sense of urgency.”

Private prison companies generally build facilities for a state, then charge them per prisoner to run them. But under the Arizona legislation, a vendor would pay $100 million up front to operate one or more prison complexes. Assuming the company could operate the prisons more cheaply or efficiently than the state, any savings would be equally divided between the state and the private firm.

The privatization move has raised questions — including among some people who work for private prison companies — about the private sector’s ability to handle the state’s most hardened criminals. While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner.

“I would not want to be the warden of death row,” said Todd Thomas, the warden of a prison in Eloy, Ariz., run by the Corrections Corporation of America. The company, the country’s largest private prison operator, has six prisons in Arizona with inmates from other states.

And:

James Austin, a co-author of a Department of Justice study in 2001 on prison privatization and president of the JFA Institute, a corrections consulting firm, said private companies tended to oversee minimum- and medium-security inmates and had little experience with the most dangerous prisoners.

“As for death row,” Mr. Austin said, “it is a very visible entity, and if something bad happens there, you will have a pretty big news story for the Legislature and governor to explain.”

Arizona is no stranger to private prisons or, for that matter, aggressive privatization efforts (recently, the state put up for sale several government buildings housing executive branch offices in Phoenix). Nearly 30 percent of the state’s prisoners are being held in prisons operated by private companies outside the state’s 10 complexes.

In addition, other states, including Alaska and Hawaii, have contracts with private companies like Corrections Corporation of America to house their prisoners in Arizona.

For advocates of prison privatization, the push here breathes a bit of life into a movement that has been on the decline across the country as cost savings from prison privatizations have often failed to materialize, corrections officers unions have resisted the efforts and high-profile problems in privately run facilities have drawn unwanted publicity.

And:

In pure financial terms, it is not clear how well the state would make out with the privatization. The 2001 study for the Department of Justice found that private prisons saved most states little money (there has been no equivalent study since). Indeed, many states, struggling to keep up with the cost of corrections, have closed prisons when possible, and sought changes in sentencing to reduce crowding in the last two years.

As tough sentencing laws and the ensuing increase in prisoners began to press on state resources in the 1980s, private prison companies attracted some states with promises of lower costs. The private prison boom lasted into the 1990s. Throughout the years, there have been high-profile riots, escapes and other violent incidents. The companies also do not generally provide the same wages and benefits as states, which has resulted in resistance from unions and concerns that the private prisons attract less-qualified workers.

Then the federal government stepped in, with a surge of new immigrant prisoners, and began to contract with the private companies. The number of federal prisoners in private prisons in the United States has more than doubled, to 32,712 in 2008 from 15,524 in 2000. The number of state prisoners in privately run prisons has increased to 93,500 from 75,000 in that time.

With bad economic times again driving many decisions about state resources, other states are sure to watch Arizona’s experiment closely.

Earlier coverage from Arizona is here.

The Dynamics of Juries

In the light of a life sentence in a notorious Chicago trial, reporters Daarel Burnette II and Stacy St. Clair have written, "Death-penalty holdouts: Experts intrigued by rare ability to withstand pressure," for the Chicago Tribune.  Here's an extended excerpt:

If not for two men, James Degorski would be headed to death row for the Brown's Chicken massacre. Juan Luna would be there already without the efforts of a married mother of two from Chicago.

The three -- jurors in the mass murderers' criminal trials -- intrigue legal experts for their rare ability to withstand intense pressure during deliberations and their refusal to support the death penalty.

Though a staple of courtroom movies and television dramas, the lone holdout or two is an anomaly inside jury rooms, experts say. That's even truer in capital cases where the law bars people who morally oppose the death penalty from serving, making it more difficult for those who favor a life sentence for a particular defendant to find allies.

"They start to feel more and more isolated," said Scott E. Sundby, a law professor at Washington & Lee University who has done extensive research on juries in capital cases. "As they feel more and more isolated ... they start to doubt themselves, doubt their judgments."

The two holdouts in the Degorski case described feeling incredibly lonely as they deliberated last week on whether the former Palatine man should die for his role in the 1993 slayings of the store's two owners and their five employees. The lone holdout in the Luna trial has not spoken publicly about her decision, save for a brief statement from her family saying she believes she made the right choice but hurts knowing it upset victims' relatives.

She did not respond to interview requests for this story.

However, the details that emerged after both death penalty decisions in the Brown's Chicken murders provide legal experts and the public with insight into the jury room, a place so secretive the participants' notes are destroyed after a verdict is reached. Researchers, in particular, value such information because it helps them not only create a profile of possible holdouts, but it also has spurred changes to verdict forms, jury instructions and strategy in capital cases.

Experts, for example, point out that the three holdouts in the Brown's cases fit the rudimentary profile of a dissenting juror because they are minorities, a group less likely to favor execution and typically more sympathetic toward defendants with troubled pasts. They also are younger -- the oldest was 31 -- and belong to an age demographic generally more inclined to consider alternative viewpoints, researchers said.

But being young or a minority does not automatically make someone a likely holdout, as both Brown's juries had African-Americans and 20-somethings who wanted to sentence the defendants to death.

"Minority jurors definitely (can) feel like outsiders in the jury deliberations," said William Bowers, director of the National Capital Jury Project, which studies how life and death sentences are reached. "They often feel that they're being railroaded into a death sentence, and they often give in."

One Degorski holdout, Pablo Laboy, described feeling under attack during deliberations once the jury realized he wouldn't back down. The Chicago man worried his fellow dissenter would switch his vote like two others did after the first straw poll.

Experts find his stance particularly interesting because he was an alternate who joined the full jury after deliberations on guilt and death penalty eligibility. Sundby said he never heard of an alternate standing down a jury in a capital case.

"I wanted to agree with everyone else," Laboy told the Tribune. "I just thought life in prison was a better punishment."

The room grew tense as the majority argued with Laboy and fellow holdout Derrick Hatchett, 21, of Chicago. In any deliberation, the first hour is most critical, experts said. Weak jurors, when they find they are in the minority, quickly change their minds.

"Studies show that isolation triggers a ... reflex in the pain center of the brain," Sundby said. "We've evolved as human beings where it is very difficult for us to stand by ourselves."

But once the Degorski jury passed the four-hour mark, the holdouts were unlikely to change their minds, research suggests. The majority came to the same conclusion less than an hour later.

Earlier coverage of the case is here.

Doctors in the Death Chamber

That's the title of Ben Crair's post at Daily Beast.  LINK  Here's an excerpt from the beginning of this lengthy examination of the issue:

On September 15, for only the second known time in American history, a death-row inmate exited from an execution chamber alive. Prisoner 187 343, a convicted murderer and rapist named Romell Broom, had his sentence temporarily reprieved by Ohio Governor Ted Strickland, but only after enduring what Fordham Law Professor Deborah Denno, a death-penalty historian, calls “the worst botched execution that has happened in the history of this country.” Over two-and-a-half hours, executioners jabbed Broom with a needle 18 times, trying to establish an IV while he cried. At one point, Broom screamed as a nurse inserted a needle into the bone in his ankle; at another juncture, Broom helped to tie his own arm. Unable to establish access to a vein, officials offered Broom coffee and a cigarette while his arms bruised and swelled. Half an hour later, his execution was postponed.

It was not Ohio’s first trouble with lethal injection. In May 2006, Joseph Clark lifted his head during an 86-minute execution to cry, “It don’t work.” A year later, in 2007, Christopher Newton’s execution took so long that he was permitted a bathroom break in the middle of the ordeal. When Newton eventually died, witnesses said his hands and forehead turned blue—a sign that he died from suffocation induced by the second of the three drugs instead of cardiac arrest from the third drug, as he was supposed to. In all three cases, the executions were administered by EMTs—professionals who lack the experience doctors have in hooking up IVs. Broom’s case is headed to court—his execution, originally rescheduled for one week later, is now on hold—and Ohio has begun delaying others in its wake; the fourth postponement since the Broom episode was announced Monday. In this climate, death-row activists and lawyers are hoping to draw attention to the undertrained staff tasked with carrying out inmates’ sentences. Undoubtedly, Broom and dozens of other death-row inmates across the country would suffer less if doctors aided in their executions. Does that mean they should?

“I’m sure I could have gotten an IV into Broom, Clark, or Newton,” says Jonathan Groner, professor of clinical surgery at the Ohio State College of Medicine. “That’s not particularly special. Vascular access is what we do for a living.” Groner, however, refuses to participate in executions; as a doctor, he is morally opposed. The American Medical Association claims that physician participation in executions “violates their oath to protect lives and erodes public confidence in the medical profession;” the group prohibits its members from even “consulting with … lethal-injection personnel.”

Groner calls the problem the Hippocratic Paradox. “The problem with lethal injection is that if medically underqualified people do it, it’s immoral because of the risk of torture,” he says, “and if medically well-qualified people do it, it causes doctors to violate their ethics”—an outcome Groner says could damage the entire medical profession by putting doctors at the service of the state, instead of the individual.

Earlier coverage from Ohio arising from the Broom botch begins with this post.  Other related posts include:

• Deborah Denno on the Ohio Botch - with more on Willie Francis
• Ohio's Lethal Injection
• Washington State & Lethal Injection
• Deadly Mix
• Doctors Won't Kill for the State
• Doctor Quits Prison Job Over Execution

Related posts are in the lethal injection category index.

Bill Moyers on Judge William Wayne Justice, Texas Justice, & Todd Willingham

Bill Moyers and Michael Winship write, "Texas, the Eyes of Justice Are Upon You." Winship is senior writer of the weekly PBS public affairs program Bill Moyers Journal.  It's a must-read:

On October 13, we lost a resolute champion of the law, a man who left his impact on the lives of untold numbers of Americans.

His very name made his life's work almost inevitable, a matter of destiny. William Wayne Justice was a Federal judge for the Eastern District of Texas. That's right, he was "Justice Justice." And he spent a distinguished legal career making sure that everyone -- no matter their color or income or class -- got a fair shake. As a former Texas lieutenant governor put it last week, "Judge Justice dragged Texas into the 20th century, God bless him."

Dragged it kicking and screaming, for it was Justice who ordered Texas to integrate its public schools in 1971 -- 17 years after the Supreme Court's Brown v. Board of Education decision made separate schools for blacks and whites unconstitutional. Texas resisted doing the right thing for as long as it could. Many of its segregated schools for African-American children were so poor they still had outhouses instead of indoor plumbing.

This small town lawyer appointed to the federal bench by President Lyndon B. Johnson ordered Texas to open its public housing to everyone, regardless of their skin color. He looked at the state's "truly shocking conditions" in its juvenile detention system and said, repair it. He struck down state law that permitted public schools to charge as much as $1,000 tuition for the children of illegal immigrants.

And Justice demanded a top-to-bottom overhaul of Texas prisons, some of the most brutal and corrupt in the nation. He even held the state in contempt of court when he thought it was dragging its feet cleaning up a system where thousands of inmates slept on the dirty bare floors of their cellblocks and often went without medical care. The late, great Molly Ivins said, "He brought the United States Constitution to Texas."

And:

You need to understand that while so many Texans have fought and are fighting the good fight in the Judge Justice tradition, others believe in the law only when it sides with them. They long for the good old days of Judge Roy Bean, the saloonkeeper whose barroom court was known in the frontier days as "the law west of the Pecos." His judicial philosophy was simple: "Hang 'em first, try 'em later."

The present governor of Texas seems to be channeling Judge Bean. During his nine years in office, Rick Perry -- "Governor Goodhair" as Ivins called him -- has presided over more than 200 executions, dwarfing the previous record of 152 set by his predecessor in the Governor's Mansion, George W. Bush. (The most, it is said, of any United States governor in modern history.)

Lethal injection is practically a religious ritual in Texas. In fact, before their sentencing verdict that will send Khristian Oliver to die in just a couple of weeks -- on November 5, to be exact -- jurors in the East Texas town of Nacogdoches consulted the Bible and found what they were looking for in the Book of Numbers, where it reads, "The murderer shall surely be put to death," and, "The revenger of blood himself shall slay the murderer." Although it was noted that referencing holy writ was an inappropriate "external influence," two appeals courts upheld the jury's sentence and the U.S. Supreme Court refused to hear the case.

Governor Perry will do almost anything to please the vengeful crowd in the Coliseum with their thumbs turned down. Did we mention that next year he's up for re-election? When it turned out recently that five years ago the state may have wrongfully executed a man for a crime he didn't commit, Perry pulled some particularly shady moves.

And:

They can be short on mercy in Texas. All the more reason to mourn the loss of Justice -- William Wayne Justice. Rest in peace, your honor.

Judge Justice's passing is noted here.  Earlier coverage of the Willingham case begins with this post.

Friday

I'll be traveling much of today.  Posts will resume later this evening.

Cameron Todd Willingham: Executed But Innocent?

That's the title of an editorial in today's Los Angeles Times.  LINK

Even in Texas, where the death penalty is embraced with fervor, the revelation that the governor permitted an execution to proceed in 2001 despite abundant evidence that the prosecution was based on seriously flawed scientific methods -- well, that might not be helpful to his reelection chances. Not during a tough campaign.

So Gov. Rick Perry's sudden decision to reconfigure the Texas Forensic Science Commission looks highly suspicious. Two days before the commission was scheduled to hear testimony from an arson expert whose scathing report gave every reason to believe Texas had wrongly convicted Cameron Todd Willingham of setting the fire that killed his three children, Perry replaced the chairman and two other members. Apparently he remembered that their terms had expired in August. The pesky hearing was canceled. It has not been rescheduled.

And:

If Perry didn't know about the problems with the prosecution, he should have. A report challenging the arson investigators' methodology landed on his desk before Willingham's execution. Now it's unclear how the commission will proceed. Its course, however, was set by the Texas Legislature, which established the board to "investigate any allegation of professional negligence or misconduct that affects the integrity of results and make all completed investigation reports, and subsequent civil or criminal proceedings, available to the public." We'll be waiting for a completed investigation and a public report.

Perry, who in recent days has called Willingham a "monster" who deserved to die and Beyler's report "propaganda," has had the nerve to paint himself as the victim of a politically motivated attempt to derail his reelection campaign. But he's wrong. His motives are being challenged because an innocent man may have been executed. Until Perry supports the commission's efforts and allows science to determine the truth, the likelihood remains that the real victim was Willingham.

The Innocence Project has issued a news release, "More Than 400 Texans Urge Forensics Panel to Continue its Work."

More than 400 Texans from 125 cities and towns across the state today urged a state panel to continue its work of reviewing the forensic evidence used in the Cameron Todd Willingham arson case.

A letter sent today to John Bradley, the newly-appointed chairman of the Texas Forensic Science Committee, urged him to ensure that the panel continues its work of evaluating forensic evidence in state cases. Joining hundreds of concerned citizens were 15 people exonerated through DNA testing after serving years in Texas prisons for crimes they didn’t commit.

Bradley will testify November 10 before a special hearing of the Texas Senate Criminal Justice Committee. He is expected to answer legislators’ questions about the status of the Forensic Science Commission’s work and plans for continuing ongoing investigations.

“Undue delay — much less a complete change of course — seems destined to sweep this investigation, Texans' faith in forensic evidence and our criminal justice system, maybe even jurors' willingness to convict, away with it,” today’s letter reads, in part.

Earlier coverage begins with this post.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

An Addendum to 'Slow Progress'

As it's news peg, the Florida Times Union report in the preceding post used the case of Mark McClain.  Augusta Chronicle reporter witnessed the execution and wrote, "Georgia's execution procedure appears cold, precise and final."  A slightly different version is posted as, "15-year saga ends with few words before last gasps.

A guard to my right breathed a deep yawn as I, along with more than 20 others, watched a man slowly die Tuesday night.

Without the knowing the gravity of the situation, it would have been easy to let my mind wander too, as 15 minutes slowly ticked by and the potassium chloride worked to stop convicted murderer Mark McClain’s heart.

There’s a cold precision to the lethal injection process that stretches beyond the point where the needle point pierced Mr. McClain’s vein.

I felt it from the moment I drove into the Georgia Diagnostic and Classification State Prison and guards tied a yellow plastic ribbon around my wrist. The ribbon meant I was confined to a yellow-roped off portion of the sprawling, wooded prison grounds – safely kept within a media area and away from state inmates a short distance up the drive.

A minivan would take me, along with an escort and two attorneys, to the compact room behind a red-colored door. I sat on the first of several wooden pew-like benches that wouldn’t have looked out-of-place at a Sunday morning service. The only difference might have been the piles of brown paper bags. I could only assume the bags were there if someone got sick.

As the designated monitor, I was the lone media representative tasked with watching nurses prepare Mr. McClain for his death.

And:

With no noise, we watched as the drugs were automatically pumped into his veins -- as his normally ruddy complexion flushed red.

We waited.

His chest heaved violently for about a minute then stopped.

His face turned purple. Then gray. Then white.

A housefly danced upon the white sheet that covered Mr. McClain’s legs. It was the only movement in the room.

Finally, a pair of doctors lifted his lifeless eyelids with their fingers and listened to make sure there was no heartbeat.

The process was complete and Mr. McClain was dead.

We left the room quickly and I didn't look back.

It Can Be a Slow Process For Those on Death Row

That's the title of a report in the Florida Times Union written by Walter Jones.  It is datelined Atlanta, Georgia.  It's a must-read. LINK

The 13 years between when Mark McClain was convicted for murdering a pizza-store manager in Augusta in a robbery for $130 and the scheduled execution Tuesday matches the current national average of 13 years.

There are more than 3,000 inmates awaiting execution nationally, 107 in Georgia, but only 40 or so are executed across the country in a typical year. The rest wait a longer and longer period while their lawyers file appeals and judges consider them.

When the death penalty was reinstated in 1973 by the U.S. Supreme Court, the average delay was about two years. A decade later, and the process was averaging 10 years, getting longer with each year.

“I tell the victim’s family ... brace yourself for years of endless appeals,” said Fred Bright, district attorney in the Ocmulgee Judicial Circuit and prosecutor in 25 death-penalty trials. “It gets mind-boggling after a while.”

McClain’s situation is typical.

Friday, the Mark McClain denied his request for clemency, one of multiple legal avenues his lawyers have tried over the years.

In 2002, they filed a petition in federal district court that was denied, and appealed that decision to the 11th Circuit Court of Appeals and lost again. But the Appeals Court didn’t rule until Dec. 18, 2008, six years after his lawyers submitted their appeal.

“There’s no mechanism on the back end to require a judge to issue a decision in an expeditious matter,” notes Russ Willard, spokesman for Georgia Attorney General Thurbert Baker. “There are cases where additional years will be added onto the appeals process because a judge is sitting on the decision.”

Retired Chief Justice of the Georgia Supreme Court, Leah Sears, defends her former colleagues.

“It’s not judges. These things take time,” she said.

Her former court, though, does have a deadline that requires a decision in all cases, large or small, within months. However, she would only favor a similar cutoff for other judges if legislators boosted funding for courts.

“Everyone wants it quick, but no one wants to fund the due process to make sure all the Ts are crossed and the I’s are dotted,” she said.

And:

The most definitive study cited by death-penalty opponents was done in 1993 by North Carolina, which concluded each execution cost at the time $2.16 million more than a life sentence.

“From all indications, the United States could be safer without the death penalty and would realize an enormous monetary saving as well,” said Sara J. Totonchi, associate director of the Southern Center for Human Rights. “Judging by the crime rates in those states that have abolished capital punishment and instituted alternative sentences, the absence of the death penalty would cause no rise in the murder rate.”

Condemned murderers, their lawyers and death-penalty opponents are in no rush to see executions carried out anyway.

However, lawyers deny filing legal obstacles just for the sake of delay. They argue the complexity of a murder and the resulting trial require diligence.

“The reasons the time is getting longer (between conviction and execution) is because mistakes have been discovered in these capital cases, even innocent people have been freed,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment. “One alternative is simply to not have the death penalty.

That’s what puts the pressure on the system.”

With 138 people freed from Death Row since capital-punishment’s reinstatement — including six in Georgia, opponents say there’s plenty of reason for the extra care.

The scientific certainty of DNA identification added a big boost to defense attorneys, providing a near-certain exoneration if there condemn’s sample didn’t match the evidence. The national Innocence Project has become famous for its success winning exoneration. However, it has never represented a case in Georgia because the state already has a mechanism for getting convicts lawyers during appeals.

But few murders include DNA evidence.

Capital Trial Costs Examined

"Murder trial costs Gray County a lot," by David Pittman of Morris News Service is from the Lubbock Avalanche-Journal.

Gray County taxpayers spent almost $750,000 - about 10 percent of the rural county's budget - to defend a Missouri man who shot and killed three people, county officials said Monday.

The preliminary costs for the defense of Levi King, 27, released Monday did not include attorneys fees or a potential bill from Lubbock County.

And:

A jury in Lubbock County, where the trial was moved due to pre-trial publicity, earlier this month sentenced King to life in prison without parole, sparing him the death penalty. The cost incurred by Gray County was just for the punishment phase of the trial.

King was already serving the same sentence in Missouri. He had previously pleaded guilty to the Sept. 29, 2005, slayings in that state of a 70-year-old man and his 47-year-old former daughter-in-law.

The defense bill of $745,125 for the Texas trial will increase once Gray County receives final attorney fees and a possible bill from Lubbock County for relocating the trial there, Morris said. A final total may be another month or two away.

Gray County's general fund budget is about $7.5 million annually.

While there were other financial factors, Morris said the cost of the King trial contributed to a decision by county commissioners to withhold employee raises and increase tax rates.

With the money spent to provide King's defense, the same result of life without parole could have been achieved with $10,000 if prosecutors chose against trying King in Texas, said Amarillo attorney Joe Marr Wilson, one of King's two appointed lawyers.

Wilson said the expense for King's defense increased dramatically because many witnesses traveled from Missouri to testify, and he chose to question a lengthy list of witnesses, rather than too few, to protect against a decision by an appellate court to overturn the verdict.

Moving the case to Lubbock and providing for travel and lodging totals about 3 percent of total defense costs.

Morris said just the expenses associated with moving the trial from Pampa to Lubbock come to approximately $25,000.

The 31st District Attorney's Office spent $88,000 to prosecute King. That figure also is expected to increase. The expense is covered by the sale of property seized in felony cases, but Switzer's office has applied for a grant from the governor's office to cover prosecution costs.

"A capital case is always going to be more," Morris said.

The last time Gray County tried a capital murder cases was nearly 15 years ago.

Earlier coverage of the King trial is here.

In  North Carolina the Asheville Citizen-Times reports, "Life sentence plea deal could lower Wong trial costs."  It's written by Jon Ostendorff.

The cost of the death penalty trial of Edwardo Wong could easily top $1 million, an expense that would come as states nationwide struggle with bills from capital cases.

Legal fees for appeals over the next 15 years if Wong is sentenced to die would only add to the cost estimate given by experts in capital cases in North Carolina and nationally.

Wong is accused of shooting to death 24-year-old state Trooper David Shawn Blanton Jr. last year during a traffic stop on Interstate 40 near Canton.

His trial had been set to start Monday in Catawba County, where a judge moved it after ruling that publicity had tainted the jury pool in Haywood County. The N.C. Supreme Court, in a rare move, ordered the judge in the case to give Wong's attorneys more time to prepare. The trial is now set for March 29.

New Mexico this year abolished capital punishment in part because of high costs, according to the Death Penalty Information Center, a Washington-based nonprofit that studies capital punishment in the U.S.

A recent study by the Urban Institute in Maryland found that the average cost of a capital trial is $3 million.

In Kansas, state researchers found the average expense from a death penalty case was $1.26 million, with pretrial investigation costs three times higher than a noncapital murder case.

According to a 1993 Duke University study, North Carolina spends millions more on executing murderers than housing them in prison.

Wong's defense attorneys said they have offered a guilty plea in a deal that would spare the 39-year-old Florida man the death sentence.

But, they said, District Attorney Michael Bonfoey won't discuss the deal.

Bonfoey declined to comment, citing an ethical responsibility to avoid influencing the jury pool.

And:

Since 1976, North Carolina has put to death 46 people at a cost of $2.6 million more, per execution, than the cost of a life sentence, according the Duke University study.

The average cost of a defense in a capital trial in North Carolina, according to the state Indigent Defense Services office, is $104,000 — more than double the cost of a defense in a capital case that ends in a plea with life in prison.

The defense in the Wong case, according to the publicly funded office, which pays for legal representation for those who can't afford lawyers, will be twice that, the office estimate this week.

From February to July, the defense billed $65,218, according to court filings. Melrose has already traveled to Japan to depose Wong's brother. The change-of-venue decision will add costs.

Legal experts said prosecutors have a responsibility to consider a plea deal.

“Personally, I take the view that where there is an offer on the table of life in prison, that typically ought to satisfy the call for justice,” said Irving Joyner, a law professor at N.C. Central University. “The mere effort to have someone killed isn't justified by the cost, which is enormous. Accepting a plea in this situation would save the state an enormous about of money.”

The odds of wining a death sentence are also dropping.

Richard Dieter, executive director of the death penalty center, said that's due in part to jurors being more aware that defendants are sometimes wrongfully sentenced to die.

In North Carolina since 2001 less than 3 percent of all capital cases have ended in a death sentence, according to indigent defense office statistics.

Related posts are in the cost and trial category indexes.

Opinion Roundup

"Death penatly costly," is the editorial in the Salina Journal.  It's written by editor and publisher Tom Bell.

Just for the sake of discussion, let's set aside any moral questions regarding the death penalty and look at the issue from another angle -- one based in common sense.

Simply put, the death penalty is much more expensive for taxpayers than putting someone in prison for life, a conclusion reached in numerous studies.

The additional expenses start with the trial. A 2003 study by the Kansas Legislative Division of Post Audit found that nondeath penalty cases cost about $740,000 to prosecute, while those involving the death penalty are estimated at about $1.2 million.

Reasons for the higher cost include lengthier trials, additional lawyers, more expert witnesses and more legal maneuvers. The study says the state bears 85 percent of total costs. One proposal to address these expenses is for Kansas to have a sentence of life in prison without chance of parole, which the Legislature passed in 2004.

And:

Consider that New Mexico lawmakers abolished the death penalty because cases were six times more expensive than those involving life without parole. An Indiana state study commission found death penalty cases are 38 percent more expensive than life without parole.

Meanwhile, statistics show that the death penalty is not a deterrent to violent crime.

Add it up: Capital punishment costs millions more than life in prison without parole. It does not deter violent crime. Endless appeals make the process long and trying for victims' families.

Those are ample reasons to ban the death penalty, even without the moral considerations.

Today's Sarasota Herald Tribune carries the OpEd, "Florida's death penalty process needs broad reform," by Raoul G. Cantero III and  Mark R. Schlakman.  Cantero is a former Florida Supreme Court justice appointed by Gov. Jeb Bush; Schlakman is with Florida State University's Center for the Advancement of Human Rights.

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that raised serious concerns about the state's death penalty process. Since then, neither state government nor The Florida Bar has done much to remedy the problems.

The ABA assembled a highly credentialed, eight-member team that was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives. The report was developed after almost two years of research and analysis, and findings and recommendations had to be unanimous to be included in the report.

The report neither supports nor opposes capital punishment; nevertheless, individual team members' perspectives ran the gamut. Simply put, the report's findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings, particularly by certain private counsel, is often abysmal.

And:

To access the full report, visit http://www.abavideonews.org/ABA340/.

Last month, the Florida State University Center for the Advancement of Human Rights hosted an ABA-sponsored forum on Florida's death penalty process in Tallahassee to coincide with the third anniversary of the release of the ABA report.

Extra emphasis was placed upon the costs and fiscal implications of the death penalty against the larger backdrop of increasing shortfalls in the state budget. Such issues are the focus of a national report released recently by the Death Penalty Information Center. To watch a replay of the forum, visit http://campus.fsu.edu/ABA.

Floridians expect a system of justice that engenders confidence based upon fairness and accuracy; however, with regard to the state's death penalty process, that standard has proven to be elusive. It's long past time to openly and honestly debate these issues and to consider possible solutions.

For the Albany Times Union City Brights blog, Alice Green posts, "The Slow Death of Capital Punishment."  Green is the founder of the Center for Law and Justice.

Earlier coverage from Kansas is here; Florida, here.

New Hampshire Death Penalty Study Commission Begins Work

"Death penalty study begins," is the title of Margot Sanger-Katz' report in today's Concord Monitor.

The 22 men and women who will be considering what the New Hampshire Legislature should do about the death penalty made their introductions yesterday at an initial meeting.

The group was established by law last year, which called for members with diverse backgrounds to debate issues surrounding the controversial punishment and recommend whether the Legislature should expand, reduce or eliminate the death penalty from the books.

Members of the group include legislators, the police, prosecutors, defense attorneys and the families of murder victims. Walter Murphy, the former chief justice of the state's Superior Court, was elected chairman.

"This is a daunting task," Murphy told his fellow committee members, citing the hundreds of articles written for and against the death penalty.

"I am glad that you are all here and willing to pitch in to give this legislation a fair hearing," he said.

Last year, the House passed a bill to abolish the death penalty, but the Senate tabled that bill and pushed forward the study commission instead. Under the legislation, the group will be asked to determine whether the death penalty serves a "legitimate public interest," whether it is fairly applied, whether it encompasses the right types of murders and whether it is a cost-effective use of resources, among other questions.

And:

Members agreed the commission will meet monthly, will hear testimony from interested parties and will deliver a report to the Legislature by December 2010.

Today's Nashua Telegraph has, "Panel puts death penalty on trial," by Kevin Landrigan.

With Michael Addison, the first convicted murderer in seven decades sentenced to die, and a grisly Mont Vernon slaying earlier this month, a 22-member, high-powered commission began a cost-benefit analysis of capital punishment Wednesday.

Retired Superior Court Chief Justice Walter Murphy took the reins of the commission that the Legislature created with a state law last spring.

Murphy said he presided over 19 murder trials, including the murder-for-hire slaying of Sharon Johnson in July 1988, a case that forced the Legislature to adjust its death penalty law due to a constitutional flaw.

While passions over the death penalty may be running higher than ever, Murphy asked to study these key questions surrounding the issue:

• Does it serve a legitimate public interest such as general deterrence, specific deterrence, punishment or instilling confidence in the criminal justice system?

• Is it consistent with evolving societal standards of decency?

• Is the use of a penalty phase to determine the death penalty’s use after conviction at trial arbitrary, unfair or discriminatory?

• Should the narrow application of the death penalty in this state be expanded, narrowed, or otherwise altered?

• Are there alternatives to capital punishment that ensure public safety and address the interests of society, the penal system and the families of victims of crime?

• Is there a significant difference in the cost of prosecution and incarceration between capital punishment and life without parole for the convicted capital murderer?.

The commission will meet monthly and Murphy said he intends to have a Web site created for the public and media to view materials that come to the commission.

Both foes and opponents of the death penalty have praised the commission makeup, which includes those for it like Rep. Steve Shurtleff, D-Concord, and former Attorney General Phil McLaughlin and those against it such as Hampton Democratic Rep. Robert Cushing and Durham Democratic Sen. Amanda Merrill.

Also on the panel are the father of slain Epsom police officer Jeremy Charron, Manchester Police Chief John Jasolka and former Merrimack County Attorney Dan St. Hilaire.

And:

New Hampshire has not executed anyone since 1939 and is the only state of 36 that have capital punishment that don’t have a death row.

A June 2008 master plan by the state Department of Corrections concluded it would cost $3.4 million to build and staff a chamber to carry out death by lethal injection.

Earlier coverage from New Hampshire begins with this post.

Life Sentence in Notorious Chicago Crime; Jurors Speak Out

"Juror in James Degorski trial now says he opposes capital punishment," is the report by Daarel Burnette II and Matthew Walberg in today's Chicago Tribune.

A second juror who voted to spare James Degorski's life for the Brown's Chicken massacre says he opposes capital punishment even though during jury selection he indicated he would likely impose the death penalty.

"I strongly felt that the death sentence shouldn't have been used," Derrick Hatchett, 21, of Chicago, said Wednesday, a day after he and juror Pablo Laboy refused to sign a verdict of death. "If someone is going to murder someone, it doesn't mean we have to murder them. It's murder either way."

Ironically, Degorski's lawyers had sought to exclude both men from the jury after each expressed during jury selection a willingness to impose the death penalty. Cook County Circuit Judge Vincent Gaughan denied their request after both assured him they could remain open-minded.

And:

During jury selection, Hatchett told attorneys he would be inclined to give the death penalty if the person was found guilty and eligible for death. But he then clarified that he would listen to arguments from both sides.

On Tuesday he held out with Laboy during nearly five hours of sometimes heated debate with the 10 jurors who wanted to sentence Degorski to death. The two sat next to each other during the deliberations.

"They did get more aggressive with me because they were shocked with my decision," Hatchett told the Tribune.

Laboy was an alternate until he was added to the jury last week when a juror was dismissed in the midst of the death-penalty hearing. But Hatchett took part in convicting Degorski last month in the murders of seven workers at the restaurant in Palatine in 1993.

Hatchett said he was convinced of Degorski's guilt from his admissions to police as well as the testimony of two female friends who said Degorski confessed to them.

Hatchett said he was willing to hear out other jurors' arguments on the death penalty, but he said he had decided on life imprisonment when deliberations began Tuesday.

"I understand that it's an option ... but I never thought it should be used," said Hatchett, who is looking for work after recently completing a degree in massage therapy. "Their decision was their decision, and my decision was my decision."

Like Laboy, Hatchett said testimony about Degorski's abusive childhood gave him further reason to oppose death for Degorski.

"By him not getting counseling, that's why he did what he did," he said of Degorski. "That affected him throughout his life."

Hatchett said that justice was served with the decision to spare Degorski's life.

"He's going to be locked up," he said. "He's never going to be out. He's never going to walk again in the real world. He will die behind bars."

"James Degorski spared death penalty for Palatine massacre," by Matthew Walberg and Sara Olkon appeared in yesterday's Tribune.

James Degorski's life was spared Tuesday by two jurors who refused to impose the death penalty on him for the murders of seven workers at the Brown's Chicken restaurant in Palatine in 1993.

The verdict left some of the victims' relatives disappointed, but all were thankful that their 16-year ordeal had come to some kind of closure.

"It's very hard to put into words your feelings," said Robert Mennes, whose brother, Thomas, was one of the two victims whom Degorski allegedly admitted to personally slaying.

"The verdict -- life in prison without possibility of parole -- that's what I was kind of hoping for," Mennes said. "But seeing that James Degorski is the one that killed my brother Tom, I was more toward the death penalty. But it's going to have to do for now."

The Cook County jury -- which returned a guilty verdict last month after deliberating for less than an hour and a half -- spent much of Tuesday afternoon in sometimes heated debate as those in favor of a death sentence wrangled with the two who held out for life in prison.

One of the two holdouts had been an alternate but was added to the jury just last week when a juror withdrew because of a family health emergency.

And:

Degorski's accomplice, Juan Luna, also was sentenced to life in prison in 2007 after one juror held out against the death penalty.

Related posts are in the sentencing category index.

2004 Execution Haunts Texas Governor's Race

That's the title of John Burnett's NPR report on the Todd Willingham case for yesterday afternoon's edition of All Things Considered.  You can listen to the audio at the LINK.

Did Texas execute an innocent man?

That question, and the controversy surrounding it, continues to dog Gov. Rick Perry. Critics say the governor has tried to squelch an investigation into the case. Now the issue has moved to the forefront of Perry's effort to win re-election.

The transcript is here.

JOHN BURNETT: The Texas Forensic Science Commission hired a nationally recognized arson expert to examine the fire science used to convict Cameron Todd Willingham. He was executed by lethal injection in 2004 for setting a house fire in Corsicana that killed his three children. In a report made public in August, that expert asserted the initial arson investigation was deeply flawed. He added his voice to other fire investigators who now doubt whether arson caused the fatal fire.

Just as the commission was set to hear from that expert in late September, Governor Rick Perry abruptly removed three of its members, including the chairman. He was later quoted as saying he felt pressure from the governor's office because it was unhappy over how the Willingham probe was proceeding. As the uproar swelled, the governor went on the offensive. He called Willingham a monster. He said numerous state and federal courts had upheld his conviction for more than a decade. And Perry dismissed contrary views as those of, quote, "latter-day supposed experts." As for the shakeup on the Forensic Science Commission…

Governor RICK PERRY (Texas): No, actually, what's happening is we're following pretty normal protocol in the state. Those individuals' terms were up, so we replaced them. It's not — nothing out of the ordinary there.

BURNETT: The state's leading newspapers aren't buying his explanation. Their editorial pages have roundly condemned the governor's actions as arrogant. They also have criticized his refusal to release an advisory memo from his general counsel on the eve of the execution regarding clemency for Willingham. The governor says the state attorney general has ruled that memo is protected by attorney-client privilege. Capital punishment is sacrosanct in Texas. It executes more inmates than any other state. And no serious candidate from either party runs against the death penalty.

And so it was with some delicacy that Perry's opponent for the Republican nomination for governor, U.S. Senator Kay Bailey Hutchison, took on the Willingham case. She spoke to a Dallas-Fort Worth radio station.

Senator KAY BAILEY HUTCHISON (Republican, Texas): I just think the governor made a mistake in trying to ramrod a covering up of what might be more evidence for the future.

And:

"The point that Hutchison is trying to make about Rick Perry is that he's hurt the death penalty, weakened it, by making it look to people outside Texas — and a lot of people in Texas — that he's playing fast and loose with the death penalty," said Dave McNeely, a longtime political journalist in Austin.

Perry, who gained his seat after George W. Bush left the Texas governor's mansion for the White House in 2001, is the longest-serving governor in Texas history. He's seeking an unprecedented third term.

"Did The New Yorker Bring Back The Death Penalty Debate?" is Helen Zhang's post at Mediaite.

A little over a month ago, The New Yorker ran a little investigative story by David Grann about the execution of Cameron Todd Willingham, who had been accused of setting fire to his house and killing his three daughters inside in 1991. Now The New York Times has taken up a Texas death sentence beat, and we have little doubt that Grann’s piece has something to do with it.

The chilling tagline “Did Texas execute an innocent man?” made it pretty easy to toil through the 17-page feature. More chilling than the tagline was the actual story, which contained years of research on the case. Page after page, as more evidence was laid out, sympathy for Willingham heightened, while the Texas prosecutors were increasingly (and embarrassingly) discredited.

Jordan Smith writes, "Perry on Willingham: He was a 'bad man',"  for the Austin Chronicle.

Just when it seemed Gov. Rick Perry had done all he could to justify the 2004 execution of inmate Cameron Todd Wil­ling­ham, he's taken it up another notch: On Oct. 14, Perry again addressed reporters on the question of whether the state executed an innocent man, this time to say that Willingham was a "monster" and a "bad man" and that his conviction and death sentence for the alleged arson-murder of his three young children in 1991 had been vetted, reviewed, and upheld by the courts "every step of the way." The media is not paying attention to that, he said, and should take the time to review the evidence.

The evidence now, of course, includes the opinions of nearly a dozen fire experts who have concluded the fire was a tragic accident. The problem, of course, is that if there was no arson, it matters not at all if Willingham was a bad man – under Texas law, being a jerk is not a death-eligible offense.

Earlier coverage begins with this post. All coverage is also available via the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Opinion Roundup

"Reasons to rethink death penalty," is the Wichita Eagle editorial.

Kansas has a death penalty in theory. It does not have a death penalty in practice, although capital punishment has been back on the books in Kansas since 1994 and there currently are nine men on death row. Each complex phase of each case seems to churn up new legal questions, leading to more delays in realizing lawmakers' goal of making execution available for the "worst of the worst" criminals in Kansas.

Especially each time another heinous murder occurs — and they show no signs of ceasing, death penalty law and all — Kansans on either side of capital punishment find common ground in wondering what purpose the death penalty is serving, except to consume tax dollars. A 2003 study indicated that Kansas' capital cases cost 70 percent more than noncapital cases.

The realization that dollars being spent on death penalty cases might be better used, especially during this budget crisis, was part of what inspired state Sen. Carolyn McGinn, R-Sedgwick, to introduce a death penalty repeal during the past session.That bill deserves a second look.

And a new national survey by the nonprofit Death Penalty Information Center, titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis," raises more cost-benefit questions about capital punishment. Among its valuable findings — that police chiefs would rather see more resources spent hiring law enforcement officers and countering drug and alcohol abuse.

The only person largely satisfied with the Kansas law's disuse may be Gov. Mark Parkinson, who pushed for the death penalty as a legislator because he saw it as a tool to coax murder defendants into pleading guilty and accepting long prison sentences. But even Parkinson has expressed a willingness to re-examine the law. And Parkinson's original motivation itself is worthy of rethinking: Should the best argument for capital punishment be its power as a plea bargaining chip?

And:

In any case, Kansas should not let another 15 years go by — and more millions of dollars go by the wayside — before it seriously reassesses whether its death penalty is worth having.

The Daily Skiff of Fort Worth's Texas Christian University has the OpEd, "Death penalty should be used efficiently or not at all," by Chris Varano.

Michael Graczyk of Associated Press

"One Reporter’s Lonely Beat, Witnessing Executions," is the title of Richard Perez-Pena's report in today's New York Times.

Of all the consequences of shrinking newsrooms, one of the oddest is this: Fewer journalists are available to watch people die. But Michael Graczyk has witnessed more than 300 deaths, and many of those were people he had come to know.

An Associated Press reporter based in Houston, Mr. Graczyk covers death penalty cases in Texas, the state that uses capital punishment far more than any other, and since the 1980s, he has attended nearly every execution the state has carried out — he has lost track of the precise count. Whenever possible, he has also interviewed the condemned killers and their victims’ families.

What makes his record all the more extraordinary is that often, Mr. Graczyk’s has been the only account of the execution given to the world at large. Covering executions was once considered an obligatory — if often ghoulish — part of what a newspaper did, like writing up school board meetings and printing box scores, but one by one, such dutiful traditions have fallen away.

A generation ago, he had plenty of company from other journalists at the prison at Huntsville, about an hour’s drive north of Houston, where executions in Texas are carried out. But then Texas executions went from rare to routine, and shrinking news organizations found it harder to justify the expense of what was, from most parts of the state, a long trip.

“There are times when I’m the only person present who doesn’t have a stake in the outcome,” he said.

Seeing inmates in the death chamber, strapped to a gurney and moments away from lethal injections, he has heard them greet him by name, confess to their crimes for the first time, sing, pray and, once, spit out a concealed handcuff key. He has stood shoulder to shoulder with other witnesses who stared, wept, fainted, turned their backs or, in one case, exchanged high-fives.

No reporter, warden, chaplain or guard has seen nearly as many executions as Mr. Graczyk, 59, Texas prison officials say. In fact, he has probably witnessed more than any other American. It could be emotionally and politically freighted work, but he takes it with a low-key, matter-of-fact lack of sentiment, refusing to hint at his own view of capital punishment.

Given a choice between the death chamber’s two viewing rooms, he usually chooses the one for the victim’s family rather than the side for the inmate’s, partly “because I can get out faster and file the story faster.”

“My job is to tell a story and tell what’s going on, and if I tell you that I get emotional on one side or another, I open myself to criticism,” he said.

The A.P. attends every execution, a policy that newspapers around the state encourage.

“Our staff is half the size it was three years ago, and so it’s just much more difficult to send somebody,” said Jim Witt, executive editor of The Fort Worth Star-Telegram. “But we know we can depend on The A.P., so I can send my reporters to something else.”

Newspapers sometimes use The A.P.’s reporting rather than their own — or they do not cover the executions at all. What was once a statewide story has become of strictly local interest.

A few papers, like The Houston Chronicle, still routinely cover executions in cases from their home counties, but not those from other parts of the state. Only one paper regularly covers executions no matter which part of the state the cases come from: The Huntsville Item, a small publication based near the prison.

Loyal readers have seen many dispatches from Mike Graczyk.

Maryland Prosecutors Will Not Be Required to Detail Standards for Seeking Death

"Prosecutors won't be called to testify on death penalty," is the title of Andrea Siegel's Baltimore Sun report.

In a setback to a prisoner challenging the state's new death penalty curbs, Maryland's 24 state's attorneys will not be called to testify how they decide whether to seek capital punishment in murder cases.

Lawyers for Lee Edward Stephens, 30, one of two inmates who face the possibility of execution if convicted of the 2006 killing of a state prison correctional officer at the now-closed Maryland Correctional Institute in Jessup, said they were disappointed with a judge's ruling on Monday.

They argued that the changes enacted this year by the General Assembly compound "the unevenness" of the law.

The disparity among counties is a well-known argument the defense had hoped to revive with the prosecutors' testimony.

Prosecutors around Maryland vary in their seeking the death penalty. Studies have documented that those in Baltimore County have pursued it in all eligible cases and those in Baltimore City rarely have.

Anne Arundel County Circuit Judge Paul A. Hackner, who is expected to rule in coming weeks on the constitutionality of the changed law, said he will consider the disparity argument, though it has been shot down by the courts.

The state's highest court has ruled that a defendant has to show that the law discriminated against him, not others, Hackner said.

"The only case that matters is Mr. Stephens' case. Everything else is for the legislature to consider," he said.

"We think the new statute narrows down the class of people that are even eligible for death, but not in a wise way," Michael E. Lawlor, one of Stephens' two lawyers, said after the hearing.

The law was amended this year to limit capital punishment to murder cases where there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

But prosecutors were pleased. They successfully argued that a week of explanations of how death penalty decisions are made elsewhere is irrelevant to the capital case against Stephens in an Anne Arundel County courtroom. Prosecutors from Montgomery and Prince George's counties joined Anne Arundel County Assistant State's Attorney Sandra Howell in saying the testimony would be a waste of time.

The Capital of Annapolis has, "Is death penalty law constitutional?" written by Scott Daugherty.

Circuit Court Judge Paul A. Hackner already is considering voluminous legal motions surrounding the constitutionality of the new law and defense attorneys plan to file additional motions in the coming weeks.

"The law is freakish and wanton and arbitrary," said Michael Lawlor, an attorney representing Lee Edward Stephens, one of two inmates charged with murder in the July 25, 2006, death of Correctional Officer David McGuinn at the Maryland House of Correction.

The law, which went into effect Oct. 1, restricts prosecutors to seeking the death penalty only in murder cases where they have DNA or other biological evidence, a videotaped confession or a video linking the suspect to the crime.

Earlier coverage includes, Caryn Tamber's report last week in the Maryland Daily Record,"All Md. state's attorneys subpoenaed in capital case."

Lawyers for a capital murder defendant have subpoenaed all 24 Maryland state’s attorneys to testify about how they decide when to seek the death penalty.

The top prosecutors have been summoned to appear in Anne Arundel County Circuit Court over four days next week, starting Monday.

“We are alleging that the death penalty is unconstitutional in Maryland because it’s one statute and it’s one state, yet what will get you death in several counties won’t get you death in a lot of others,” said Gary E. Proctor, one of the lawyers for accused prison guard-killer Lee Edward Stephens.

“If it’s one state, they should have one state method of deciding who goes to death row and who doesn’t,” Proctor said. “The only way I know to demonstrate that is to call all the elected officials.”

Proctor and Lawlor have asked the state’s attorneys to bring any written guidelines they use when determining whether to seek the death penalty in a particular case.

Anne Arundel County Assistant State’s Attorney Sandra Howell has filed a motion to quash the subpoenas and will argue that motion Monday, before the state’s attorneys are scheduled to testify.

“It’s the state’s position that their testimony simply is not relevant to whether the statute is constitutional,” said Kristin Fleckenstein, a spokeswoman for the Anne Arundel County state’s attorney.

Perry Reiterates Death Penalty Support

Christy Hoppe writes, "Gov. Rick Perry reiterates support for Texas' death penalty process," for today's Dallas Morning News.

Gov. Rick Perry reiterated his support for the state's death penalty system Tuesday after one of his predecessors raised questions about its reliability.

Questions about the arson investigation that led to the execution of Cameron Todd Willingham prompted former Gov. Mark White, a Democrat who ran as a strong advocate of capital punishment in the 1980s, to say last week that he now opposes it. Perry said Texas' system is sound.

"Our process works, and I don't see anything out there that would merit calling for a moratorium on the Texas death penalty," he said after voting early on a slate of constitutional amendments. "It's fair and appropriate, and we will continue with it."

Perry has been criticized for replacing members of the Texas Forensic Science Commission as it was about to hear from a scientist whose review raised doubts about the case.

"Perry defends Texas’ death penalty," by Corrie MacLaggan is posted at the Austin American-Statesman.

News 8 Austin has "Perry dismisses calls for moratorium on death penalty."

Supreme Court Rejects Review of Kenneth Mosley Case

"Suburban Dallas cop killer loses at Supreme Court," is the title of Michael Graczyk's filing for AP, via the Houston Chronicle.

The U.S. Supreme Court on Tuesday refused to review an appeal from a man convicted of killing a suburban Dallas police officer, clearing the way for a new execution date to be set.

Kenneth Mosley, 51, won a reprieve from the high court last month, just a day before he was to receive lethal injection for the fatal shooting of Garland Officer David Moore. Moore, 32, was shot in February 1991 while responding to a 911 call about a bank robbery.

Mosley's lawyers had won the reprieve by arguing issues in his case were similar to those in an Alabama death penalty case the court is reviewing.

The Alabama case, to be heard by the high court in November, centers on whether a trial lawyer was constitutionally deficient in failing to raise objections during the punishment phase of the trial. Mosley's attorneys said his trial attorneys were deficient for not objecting to victim impact testimony from the officer's wife and for not calling witnesses to testify about Mosley's drug and alcohol addictions.

The article notes that Dallas prosecutors may seek a January 2010 execution date.  Earlier coverage is here.

The Ohio Moratorium

"Judge Delays Another Ohio Execution," is the title of Rob Driehaus' report in today's New York Times.

A federal judge has indefinitely delayed an execution scheduled for Dec. 8, the fourth execution to be postponed in Ohio since technicians failed for two hours last month to administer lethal drugs to a man convicted of murder and rape.

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15. The judge, Gregory Frost, also indefinitely delayed the second effort to execute Mr. Broom.

“This court cannot say whether Mr. Biros is entitled to an ongoing stay of execution based on facts arising from the Broom execution attempt until this court knows what those facts are,” Judge Frost wrote.

Earlier this month, Gov. Ted Strickland postponed the executions of the two men scheduled to die before Mr. Birros, Lawrence R. Reynolds Jr. and Darryl Durr, until spring, to give corrections officials more time to develop backup procedures if another problem occurs in administering lethal drugs by the normal method of inserting intravenous lines into veins in a prisoner’s arms or legs. The state had expected to have new procedures in place in time to execute Mr. Birros on Dec. 8.

And:

A spokeswoman for the governor said a review of execution procedures continued. A spokeswoman for Richard Cordray, the attorney general, said the state was reviewing its legal options.

In addition to the case before Judge Frost, the conflict over Ohio’s execution methods is playing out on several other fronts, including appeals by individual defendants and an appeal by Mr. Cordray to the United States Supreme Court.

Earlier coverage from Ohio begins with this post.

News Coverage of Smart on Crime

The Death Penalty Information Center's report Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis,  is garnering a great deal of news coverage, often with a local angle.

"Ending death penalty could save US millions: study," is the AFP report by Lucile Malandain.

Even when executions are not carried out, the death penalty costs US states hundreds of millions of dollars a year, depleting budgets in the midst of economic crisis, a study released Tuesday found.

"It is doubtful in today's economic climate that any legislature would introduce the death penalty if faced with the reality that each execution would cost taxpayers 25 million dollars, or that the state might spend more than 100 million dollars over several years and produce few or no executions," argued Richard Dieter, director of the Death Penalty Information Center and the report's author.

"Surely there are more pressing needs deserving funding," he wrote, noting that execution was rated among the least effective crime deterrents.

The Christian Science Monitor has, "Death peantly is too expensive for states, study finds," by Warren Richey.

State and local governments facing dire budget crunches can realize substantial savings by replacing capital punishment with a regime that sentences the worst offenders to life in prison without parole, according to a report released Tuesday by the Death Penalty Information Center (DPIC).

The number of death sentences handed down in the United States has dropped from roughly 300 a year in the 1990s to 115 a year more recently. Executions are falling off at the same rate, the report says.

In the meantime, some 3,300 inmates remain on death row.

"[T]he death penalty is turning into a very expensive form of life without parole," said Richard Dieter, DPIC executive director, in a statement. "At a time of budget shortfalls, the death penalty cannot be exempt from reevaluation alongside other wasteful government programs that no longer make sense."

CNN: "Study: States can't afford death penalty," by Bill Mears.

A privately conducted poll of 500 police chiefs released with the report found the death penalty ranked last among their priorities for reducing violent crime. Only 1 percent found it to the best way to achieve that goal. Adding police officers ranked first.

The death row population in 2007, the most-recent statistic available from the Justice Department, was 3,220. It was at 2,250 two decades ago, but the numbers have not grown significantly since 2000.

Forty executions have occurred so far in 2009 in 10 states, all by lethal injection. That total is up from 37 for all of last year, but less than half of the high of 98, from 10 years ago. The Supreme Court reinstated capital punishment in 1976.

The Columbus Dispatch: "Death penalty not a deterrent, police chiefs say," by Alan Johnson.

The survey by RT Strategies of Washington found that 83 percent of police chiefs questioned still favor the death penalty, but the vast majority rank it near the bottom of crime-fighting strategies. Adding police officers, fighting drug abuse, longer prison sentences and improved crime databases all are higher priorities.

Similarly, about one in four police chiefs see executions as an efficient use of taxpayer dollars. However, 56 percent said they still prefer it to life in prison without the possibility of parole.

The survey was conducted from Oct. 29 to Nov. 14, 2008, and has a margin of error of plus or minus 5.1 percentage points.

The Dayton Daily News: "Death penalty not efficient, police chiefs say," by Tom Beyerlein.

Dayton Police Chief Richard Biehl said the study raises some legitimate concerns. DNA has shown some inmates have been falsely convicted, he noted, and he doesn’t believe the death penalty is a crime deterrent, but said it may be a just punishment for some heinous crimes.

“One question is, what are we trying to accomplish with the death penalty?” Biehl said. “If it’s deterrence, it doesn’t seem to get the job done at all. If it’s justice, that’s another question.”

“I think in some cases the death penalty is warranted. However, there are issues with the death penalty that need to be resolved, and I don’t think we can ignore the economic impact. The dollars we spend here, we can’t spend anywhere else.”

Kettering Police Chief James O’Dell said, “I don’t know if I can argue” with the study’s findings, but he does believe there’s a place for capital punishment as a deterrent and a punishment.

The Hartford Courant: "Killing people is just too expensive," by Susan Campbell.

The Kansas City Star: "Only 1 in 10 death sentences get carried out, report says."

The Pittsburgh Post-Gazette: "Death penalty no deterrent, police chiefs say," by Gabrielle Banks.Post-Gazette.

Overall, the officers ranked "more officers" as a top priority followed by reducing drug abuse. One percent of the chiefs interviewed ranked the death penalty as a top priority.

Fifty-seven percent of the chiefs said they did not view it as a deterrent to crime.

Dale Vietmeier, Robinson Police Chief and former president of the Allegheny County Chiefs of Police Association, agreed.

"I think law enforcement thinks it's a joke and that's probably why 1 percent thinks it's effective. It takes too long and there's too many people on death row that never get put to death," he said. He said he'd rank cutting drug addiction and boosting the number of officers as his top priorities.

The Wichita Eagle: "From a budget standpoint, is death row worth it?" by Ron Sylvester.

Kansas was one of 11 states that brought up measures in 2009 to abolish the death penalty.

The bill, which was tabled for study before a formal vote was taken, is expected to come back for consideration when the Legislature convenes in January.

“We’ve had the death penalty since 1994, and we continue to pay for the process with little results,” said state Sen. Carolyn McGinn, R-Sedgwick, who sponsored the bill. “But we continue to cut the programs that could prevent these types of crimes.”

Among the death penalty’s costs are more complex legal issues in cases that can take two years to go to trial, followed by a decade or more of appeals.

McGinn cited community corrections programs, along with prenatal care and programs to help young mothers, among those suffering from budget cuts.

“More important is to take that money (saved by abolishing the death penalty) and putting it into those preventative programs,” McGinn said.

The report released today cited audits in Kansas, North Carolina, Indiana and California, all of which show the death penalty is more expensive than cases that result in life prison sentences.

The 2003 audit in Kansas showed capital cases cost 70 percent more than non-capital murder cases.

Earlier coverage of  Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis  is here.

New Report From DPIC

The report is, Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis. 

The Death Penalty Information Center's news release is, "New Report Shows States Can Save Hundreds of Millions by Abolishing the Death Penalty.  National Poll of Police Chiefs Ranks the Death Penalty Last Among Crime-Fighting Priorities and Least Efficient Use of Taxpayers' Money."

A report released today by the Death Penalty Information Center concludes that states are wasting hundreds of millions of dollars on the death penalty, draining state budgets during the economic crisis and diverting funds from more effective anti-violence programs. A nationwide poll of police chiefs conducted by RT Strategies, released with the report, found that they ranked the death penalty last among their priorities for crime-fighting, do not believe the death penalty deters murder, and rate it as the least efficient use of limited taxpayer dollars.

"With many states spending millions to retain the death penalty, while seldom or never carrying out an execution, the death penalty is turning into a very expensive form of life without parole. At a time of budget shortfalls, the death penalty cannot be exempt from reevaluation alongside other wasteful government programs that no longer make sense," said Richard C. Dieter, Executive Director of the Death Penalty Information Center and the report's author.

"The death penalty is a colossal waste of money that would be better spent putting more cops on the street. New Jersey threw away $250 million on the death penalty over 25 years with nothing to show for it. The death penalty isn't a deterrent whatsoever. New Jersey's murder rate has dropped since the state got rid of the death penalty. If other states abolished the death penalty, law enforcement wouldn't miss it and the cost savings could be used on more effective crime-fighting programs," said Police Chief James Abbott of West Orange, New Jersey. Abbott, a Republican, has served 29 years on the police force and was a member of the state commission that recommended the death penalty be abolished.

Key findings from the poll of police chiefs include:

• The death penalty was ranked last when the police chiefs were asked to name one area as "most important for reducing violent crime," with only one percent listing it as the best way to reduce violence. The death penalty came in behind more police officers; reducing drug abuse; better economy and more jobs; longer prison sentences; and technological innovations such as improved laboratories and crime databases.
• The police chiefs ranked the death penalty as the least efficient use of taxpayers' money. They rated expanded training and more equipment for police officers; hiring more police officers; community policing; more programs to control drug and alcohol abuse; and neighborhood watch programs as more efficient uses of taxpayers' dollars.
• Almost 6 in 10 police chiefs (57%) agreed that the death penalty does little to prevent violent crimes because perpetrators rarely consider the consequences when engaged in violence. Although the police chiefs did not oppose the death penalty in principle, less than half (47%) would support it if a sentence of life without parole with mandatory restitution to the victim's family were available.

"We need to stop wasting money on a broken death penalty and instead spend our limited resources on solving more homicides. My brother's murder has remained unsolved for more than six years. The death penalty won't bring my brother back or help to apprehend his murderer. We need to start investing in programs that will actually improve public safety and get more killers off the streets," said Judy Kerr of Albany, California.

The extra costs of the death penalty, beyond life sentences, are often $10 million per year per state. If a state spent that $10 million on hiring new police officers (or teachers) at $40,000 per year, it could afford to hire 250 additional workers.

California spends $137 million per year on the death penalty and has not had an execution in almost four years, even as the state pays its employees in IOUs and releases inmates early to address overcrowding and budget shortfalls. In Florida, where the courts have lost 10 percent of their funding, the state spends $51 million dollars per year on the death penalty or $24 million for each execution.

Executions themselves are not expensive; it is the pursuit of the death penalty that carries a high price tag. The higher costs of the death penalty process -- including the costs of higher security on death row -- are unavoidable and likely to increase in light of all the mistakes that have been made in capital cases.

In 2009, 11 state legislatures (Colorado, Connecticut, Illinois, Kansas, Maryland, Montana, Nebraska, New Hampshire, New Mexico, Texas and Washington) considered abolition bills. New Mexico abolished the death penalty and Maryland narrowed its application with costs as an issue in both states.

Both houses of the Connecticut legislature voted to end the death penalty and one house of the Montana and Colorado legislatures (where cost savings were to be allocated to solving cold cases) passed abolition bills. The trend of states reexamining the death penalty in light of the economic crisis is expected to continue.

The poll of 500 randomly-selected police chiefs was conducted from October 29 to November 14, 2008 by RT Strategies with a margin of error of +/- 5.1 for all elites. The results of the poll were publicly released for the first time today.

I'll have a roundup of news coverage later today.

The Latest Willingham - Perry Commentary

Today's San Antonio Express-News carries the editorial, "Upholding law is Perry's duty."

By many accounts, Cameron Willingham was an unsavory character. He allegedly beat his wife. He had a criminal record of nonviolent felonies and misdemeanors.

Those aren't capital crimes.

Willingham was put to death in 2004 for the murder of his three daughters by arson. Subsequent expert examinations of the forensic evidence — the only meaningful evidence that led to his conviction — has cast serious doubt on the integrity of the arson investigation.

But the person who is generating the most doubt about the Willingham case is Gov. Rick Perry. Perry's duty as governor is to uphold the laws of the state of Texas. But his reshuffling of the Texas Forensic Science Commission is making it look as though his primary consideration is delaying or stopping a commission finding that might hurt his re-election effort.

The commission had been reviewing the case for two years. Last month, just as it was preparing to hold a public hearing to review expert testimony, Perry sacked the commission's chairman and two other members. The new chairman canceled the hearing.

Perry's self-serving actions don't stop there. As the Houston Chronicle reported, the governor's office is refusing to release information about how — or even if — Perry and his staff considered Willingham's reprieve request. The request included an expert analysis that refuted the forensic findings. Perry's predecessors, including George W. Bush, have made gubernatorial reviews of death penalty cases a matter of public record.

A leader committed to upholding the law and the administration of justice in Texas wouldn't act in this way. A politician worried that a strong primary opponent might use the forensic board's findings or his own records against him would.

And:

Willingham isn't alive to defend himself anymore. That makes it easy for Perry to call him a monster and cite as evidence Willingham's use of obscenities in the death chamber.

If Willingham was innocent, his use of obscenities was by far the least offensive aspect of what took place in Huntsville that day back in 2004. It's Perry's duty to see that an investigation into the circumstances of Willingham's conviction and execution arrives at a just conclusion. Instead, the governor seems to be doing everything in his power to hamper that investigation.

The Dallas Morning News has two columns today, both written by editorial board members,  William McKenzie writes, "Rick Perry's perplexing ways."

What is Rick Perry doing?

That's the question of the day in Texas politics. The governor largely has led Sen. Kay Bailey Hutchison in their GOP gubernatorial race, but his repeated strongman tactics have folks scratching their heads.

In recent weeks, Perry has ousted his appointed chairman of the Texas Forensic Science Commission only days before the commission was to hear testimony raising doubts about an arson finding that led to a Texan's execution. Perry also did not reappoint three other board members.

Before that, a Texas Tech regent (and Perry appointee) said a former Perry staffer essentially told him to get off the board since he had endorsed Hutchison. That was followed by three University of Texas regents acknowledging that Perry had urged them to back his candidate for UT System chancellor. And Perry caught flak even earlier this year, including from Aggies, for letting his former chief of staff push out Texas A&M's president.

Most recently, this newspaper ran a story about Perry not releasing memos and meeting schedules. He even answers some e-mail from a personal computer so it can't be considered state business. 

Perry has arguments for each decision, but when you put these stories together – plus the scuttlebutt you hear around Austin about Perry and/or his people going after opponents in the Legislature or state agencies – the pattern looks heavy-handed. One critic even likened his decision about the forensic commission to a "Saturday Night Massacre."

If I were running to extend my governorship to 13 years, I don't think I'd want to be compared to Richard Nixon.

And:

He has several months before the March 2010 primary, so maybe he will move away from his boss-man image. Even if he doesn't want to, he should remember that how a person runs a campaign can determine how effectively he can govern. In a weak-governor state like Texas, inspiration matters more than bullying.

Rodger Jones writes, "Don't rush to judgment on Willingham."

The case for Cameron Todd Willingham's innocence is far from made, in my view. I have qualms about the possibility of miscarriage of justice, and that's partly why I'm a death penalty opponent – that awful possibility.

But we haven't heard the full and undistorted story about this tortured, politically tinged case. I'm dismayed that so many people are jumping the gun on it – assuming the worst on the part of the state and suspending all skepticism where fire expert Craig Beyler is concerned. How can we make conclusions until we know everything that's knowable?

That's one reason I'm disappointed in Rick Perry. We needed to sort things out, and he shouldn't have messed with the Texas Forensic Science Commission.

I wrote this newspaper's editorial that said Perry "looks like a desperate man." It's true. He looks like Tricky Rick. His decision to dismiss members of the forensics commission and set back the inquiry was wrong.

The governor should have let the process go forward. Look closely at the editorial. It doesn't draw conclusions on guilt. It did criticize Perry's certainty about Willingham's guilt, despite new information. It asked:

How can any responsible person be so sure, short of a full airing of the facts?

I'll turn that around on Perry critics and those who have concluded the other way, that Willingham was innocent: How can any responsible person be so sure?

Earlier coverage begins with the preceding post.

Controversy Builds in Texas Over Execution

That's the title of James McKinley's report in today's New York Times.  LINK

Questions about whether Gov. Rick Perry allowed the execution of a man some arson experts say may have been innocent, and then hindered an investigation into the evidence, continue to reverberate across Texas, where issues surrounding capital punishment have rarely stirred such controversy.

On Sunday, Mark White, who as governor himself was a strong death penalty supporter, said he believed that the state should reconsider capital punishment because, among other reasons, there was too great a risk of putting innocent people to death.

“There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don’t look up one day and determine that we as the State of Texas have executed someone who is in fact innocent,” Mr. White, a Democrat who was governor from 1983 to 1987, told The Houston Chronicle and The San Antonio Express-News.

Mr. White’s remarks came with Mr. Perry, a Republican and staunch backer of the death penalty, under criticism for not granting a 30-day reprieve to Cameron T. Willingham in 2004, when an arson expert working with Mr. Willingham’s defense concluded that the evidence that had put him on death row was seriously flawed.

Mr. White said he did not intend for his comments to be taken as criticism of Mr. Perry’s handling of the Willingham case. But, he said, the case is one example “of why I think the system is so unreliable.”

Three weeks ago Mr. Perry replaced the chairman and two other members of the State Forensic Science Commission, which was about to hold hearings on the evidence in the case. The new chairman, a close ally of the governor, promptly canceled a hearing at which a second, independent arson expert was to testify. The commission’s expert, Craig L. Beyler of Baltimore, had concluded in a lengthy report that the evidence did not prove that Mr. Willingham set the fire that killed his three daughters in 1991.

Since then, the governor has found himself on the defensive, with editorial writers, columnists and political opponents in both parties accusing him of trying to protect his future at the expense of determining the truth.

Last week Mr. Perry defended his decision and struck back at his critics. “Willingham was a monster,” he said. “Here’s a guy who murdered his three children, who tried to beat his wife into an abortion so he wouldn’t have those kids. Person after person has stood up and testified to the facts in this case.”

The governor has pointed out that just before the execution, Mr. Willingham’s conviction was sustained by appellate courts, including the United States Court of Appeals for the Fifth Circuit. That court ruled that the affidavit of the defense’s arson expert, Gerald Hurst, did not exonerate Mr. Willingham, since there was other physical evidence that contrary to his claims, he had not tried to save his children.

Mr. Perry has also refused to release the memorandum from his general counsel on which he based his decision to let the execution proceed. He says the memorandum is protected by attorney-client privilege.

And:

Mr. Willingham’s guilt aside, the governor’s actions have left him vulnerable to accusations that he tampered with the work of a supposedly independent commission for political reasons.

The accusations gained weight when Sam Bassett, the Austin lawyer whom the governor dismissed three weeks ago after two terms as head of the commission, said last week that the governor’s general counsel, David G. Cabrales, pressured Mr. Bassett earlier this year to drop the inquiry. Mr. Cabrales has not responded to Mr. Bassett’s account.

Earlier coverage begins with this post.  Next will be a roundup ot Texas commentary.

All coverage is also available via the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled, "Man executed on disproved forensics."

Ohio

Today's Cleveland Plain Dealer carries the editorial, "The costs to society and the state of capital punishment are too high to justify."

It has been 27 years since neo-Nazi Frank Spisak Jr. terrorized Cleveland State University by fatally shooting three men over a seven-month period. A year later, Spisak was convicted of the murders and sentenced to die.

Last Tuesday, Ohio Attorney General Richard Cordray appeared before the U.S. Supreme Court to argue in the latest appeal arising from Spisak's case and the second to reach the nation's highest court. At issue: Whether the late attorney Thomas Shaughnessy put on a sufficient defense during the sentencing phase of Spisak's trial to permit his execution.

The mere fact that Spisak is alive and litigating is a reminder of how seriously our judicial system treats capital cases. Before anyone is put to death, he or she is given multiple chances to test the finding of guilt and to present mitigating evidence. Even vehement supporters of capital punishment probably would not want an execution tainted by doubt to proceed.

But these appeals come at a cost. An Urban Institute study in Maryland last year estimated that a death penalty case costs the state almost $2 million more than a non-death penalty case. At every step -- investigation, trial, appeals and incarceration -- the price is notably higher when a defendant's life is at stake. Ohio, as of Sept. 23, had 166 inmates on death row.

And now, Ohio has a moratorium on executions, following the botched attempt to carry out Romell Broom's sentence last month.

And:

Capital punishment exacts a toll on those who carry it out. It delays closure for the victims of an awful crime. It also costs the state millions of extra dollars. The best reform to Ohio's death penalty is also the simplest and the cheapest: End it.

AFP has distributed, "Screams, flames among horrors of botched US executions," available via Google News.  It's datelined Washington and written by Lucile Malandain.

US executions are meant to be clinical and humane, but for some they end up resembling medieval torture, complete with the smell of burning flesh, screams, and scenes so gruesome that witnesses faint.

"We put animals to death more humanely," reporter Carla McClain said of a 1992 execution she witnessed, in which Donald Eugene Harding writhed and thrashed in an Arizona gas chamber for over 10 minutes before dying.

Last month, Romell Brown became only the second man to leave a US execution chamber alive, after 18 failed attempts to administer the lethal injection.

Authorities in Ohio decided to halt his execution after officials spent two hours trying to inject him with lethal chemicals.

Many of those executed in the United States in the last 25 years were not so lucky, suffering through executions in which flesh caught on fire, blood saturated shirts, and witnesses watched and listened as the condemned convulsed and screamed with pain.

In 1999, Florida Supreme Court Justice Leander Shaw reacted with horror to pictures of Allen Lee Davis, who was put to death by electric chair.

"The color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida," Shaw wrote.

Davis had been strapped into an electric chair especially designed to fit his 350-pound frame. As he was electrocuted, but before he was pronounced dead, blood poured from his mouth, soaking his white shirt and oozing through the buckle holes of the strap holding him down.

Michael Radelet, a professor at the University of Colorado, worked with the Death Penalty Information Center to collect testimony on more than 40 botched instances from the witnesses required to be present at executions.

Horror stories have emerged about all the execution methods commonly used in the United States, including the electric chair, lethal injection and gas chamber, with most of the disasters due to human error.

And:

In Angel Diaz's case, in Florida in 2006, a single dose of the lethal cocktails that anesthetize, paralyze and then stop the recipient's heart was not enough. The first injection went through his vein and out the other side, dispersing the chemicals into his muscles, forcing a second dose to be given.

At times, the scenes have been gruesome enough to physically affect observers. In 1989, in Texas, which holds the record for the most US executions, a male witness fainted after watching Stephen McCoy's violent writhing.

Some of the most recent horror stories come from Ohio, where Broom's execution was halted.

"It don't work! It don't work," yelled a sobbing Joseph Clark in May 2006, as the vein that executioners had worked 22 minutes to find collapsed while the chemicals were being administered.

A year later, Ohio authorities took two hours to successfully find veins and administer Christopher Newton the lethal injection. The process took so long, he was authorized to take a bathroom break.

Earlier coverage of the Ohio both is here; related articles in the lethal injection category index.

Lise Olsen on Gov. Perry & Clemency

"Perry uses clemency sparingly on death row," is Lise Olsen's report in the Sunday edition of the Houston Chronicle.  It's a must-read.  Here are extended excerpts:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court. In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.

Yet in Texas, it is almost never granted. In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows. Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline.

Most of the nation's 35 death penalty states grant clemency powers to the governor. In the other eight states, including Texas, the governor relies on recommendations from a parole board. Perry uses the State Board of Pardons and Paroles, whose members he appoints, to decide whether to commute death sentences or grant longer reprieves — though he can and has carried out an execution the board voted to halt.

On his own, the governor can issue last-minute reprieves of up to 30 days. Perry has done so only twice.

And:

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful.

“No matter where you stand on capital punishment, I think we can all agree that life and death decisions should be taken more seriously than sending a fax,” said Sen. Rodney Ellis, D-Houston, a longtime reform advocate and death penalty supporter who oversaw three executions as acting governor in 2000.

“Since 1999, I have been pushing legislation to make the Board of Pardons and Paroles' clemency process in death penalty cases more fair and open, to at least get on a conference call before they vote to take someone's life,” he said.

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency.

“I don't think they care whether a person is guilty or not guilty,” Burwell said.

Perry had used his power to issue last-minute delays twice before Willingham's execution in 2004. But neither involved a claim of potential innocence. He granted a 30-day reprieve in 2002 to allow authorities to interview a condemned man about other crimes. He delayed another execution because of court closures caused by the Sept. 11 attacks.

Perry granted his first and only reprieve for a death row inmate claiming innocence in December 2004, 10 months after Willingham's execution. Acting on a board recommendation, Perry delayed for 120 days the execution of Frances Newton, a Houston woman convicted of the 1987 shooting of her husband and children, “to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders.”

And:

In 2005, Perry commuted the sentences of 28 death row inmates convicted of murders committed before turning 18. Those commutations were ordered by the U.S. Supreme Court decision. He did the same thing in the two other cases involving severely mentally disabled offenders affected by another high court decision.

Only rarely has the Texas parole board recommended commutation of a death sentence without a high court mandate. But it did so in May 2004.

Kelsey Patterson shot and killed two people in Palestine in 1992 and then returned home, laid down his gun, removed everything but his socks and began walking up and down the street. Though found competent, Patterson, a paranoid schizophrenic, ranted at trial about devices planted inside him. As his execution approached, Patterson failed to recognize his lawyers. The board voted to spare his life.

Perry sent him to his death.

In 2007, the board again recommended commutation in the case of Kenneth Foster, the admitted getaway driver in a San Antonio murder who had been convicted in the same trial as the shooter. Perry commuted Foster's sentence to life in prison on the day he was to have been executed.

More on Kenneth Foster's 2007 commutation is here. Unfortunatley for Francis Newton, evidence from her trial was not properly stored and items that could have been tested had been contaminated.  She went to her death proclaiming her innocence.

There's much more in the clemency category index, including:

• Clemency and Kenneth Foster
  
• A New Examination of Clemency
• The Role of Mercy

The Appendix of The Role of Mercy contains comparative state information.

Walter Reaves Speaks Out

The Waco attorney was Todd Willingham's final lawyer.  "Local attorney says controversy helpful in arson execution case," is the title of Cindy Culp's report for the Sunday Waco Tribune-Herald.

After years of trying, local attorney Walter M. Reaves Jr. thinks he is closer than ever to exonerating a Corsicana man who was executed for arson murder.

The work of a state panel examining the case of Cameron Todd Willingham has come to a halt. But Reaves said the case won’t be forgotten any time soon because of national media attention focused on the role that Gov. Rick Perry has played in the inquiry.

Some observers think the case could prove what death penalty opponents have long argued — that the judicial system is flawed to the point where innocent people can be put to death. At the very least, Reaves said, the case is exposing the faulty fire science used to convict Willingham and scores of others who are still imprisoned.

Reaves represented Willingham during part of his appeals process and has continued to try to clear his name even after his death.

“I think it’s going to be beneficial,” Reaves said last week of the renewed attention on the case, which he discussed with the Tribune-Herald before Willingham was executed in 2004. “At least people are starting to talk about it.”

And:

...Reaves said it is clear to him that Perry’s actions were politically motivated and that the commission is now a political body without credibility. Perry didn’t like that Beyler reached the same conclusion that other arson experts have reached, Reaves said, so he acted to derail the panel’s work.

Reaves had been invited to speak at the meeting that was canceled and had submitted written comments to the commission about Beyler’s report, at its request.

“I think the governor has handled it as bad as he could have handled it,” Reaves said. “My prediction is that (the commission) is going to drop the case altogether and not do anything with it.”

If that happens, Reaves said, he will explore other ways to continue having Willingham’s case heard. Several other leading experts besides Beyler have concluded that all the indicators the original fire investigators said proved arson are invalid.

Those experts include Gerald Hurst, who reviewed the case before Willingham was executed. As Hurst pointed out to the Tribune-Herald in 2004, a new manual that is now the standard for arson investigations was released shortly after the Willingham investigation. The manual debunks many beliefs investigators previously held about fires.

And:

“People lose sight of the fact that we can argue about it all day long, but the bottom line is that if they were to try the case again, there is no way any jury would convict,” Reaves said. “. . . If there’s no arson, there’s no case.”

Mark Osler, a Baylor University law professor and former federal prosecutor, said he thinks the Willingham case has the potential to change public opinion of the death penalty. It’s the first case in the United States to have credible evidence that suggests a strong possibility that an innocent person was executed, he said.

The case may also further open the door to the idea that people can be definitively cleared of crimes without DNA evidence, Osler said. While it’s great so many wrongful convictions have been exposed through DNA evidence, the question of how the system may have failed others without such testing available to them remains open, he said.

“You only have DNA in certain kinds of cases, but doubt you have in many kinds of cases,” Osler said.

Reaves agreed, saying he is optimistic that Willingham’s case will help further expose the use of “junk science” in criminal cases. One case in particular that will likely benefit, he said, is that of Ed Graf.

Graf was convicted of killing his two stepsons by burning them alive in a storage shed behind their Hewitt home in 1986. He is serving a life sentence in a Gatesville prison.

Reaves thinks Graf is innocent and has been poring over the case with the help of Baylor students who are part of an innocence project at the law school. Many of the techniques used by fire investigators at the time have since been disproved, just like with the Willingham case, he said.

Earlier Willingham coverage begins with the preceding post.  More on the Graf, case is here; more on Osler, here.

Perry Keeps Willingham Memo a Secret

That's the title of another R.G. Ratcliffe report in today's Houston Chronicle.  LINK

Embroiled in a national controversy over whether he allowed the execution of an innocent man, Gov. Rick Perry adamantly has refused to release an advisory memo from his general counsel about granting a 30-day reprieve for Cameron Todd Willingham.

“That information has been privileged information back when Ann Richards was the governor and George Bush was the governor, and I suggest it will be privileged information after I am the governor,” Perry told reporters last week.

Perry's office has a demonstrated record of applying the attorney-client privilege to him.

When a national news organization in 2003 asked the state archives for the execution memoranda written for former Gov. George W. Bush, there was no objection from Perry's office to the public having the information. Because of Perry's silence, Attorney General Greg Abbott ordered the documents' release.

But when the Houston Chronicle and other news organizations sought similar memos written for Perry by his general counsel, the governor's office has fought it repeatedly and obtained rulings from Abbott that the information does not have to be made public.

It is part of a pattern, a shroud of secrecy that has descended on the governor's office since Perry took over as governor from Bush.

“Taxpayers are being shortchanged when it comes to the public record for this governor,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. “That's not what transparency is all about.”

And:

Perry's office has sought rulings from Abbott's office 173 times against releasing records, and he twice sued Abbott when he didn't like a ruling that records should be made public. Both lawsuits later were dropped.

The most recent brush is over releasing copies of a clemency memo written for Perry prior to the 2004 execution of Willingham for the murder of his three daughters in a Corsicana house fire. Shortly before the execution, Perry's office received a forensics report that the fire could not be proved to be arson.

Peggy Fikac's Chronicle column today is, "Perry's fingerprints all over state."

So, this is what you get with a governor who's appointed everyone to everything after nearly nine years in office: You name it, Gov. Rick Perry has a hand in it.

You get landmarks, such as his appointment of Eva Guzman as the first Latina to serve on the Texas Supreme Court.

And you get landmines, such as his nationally controversial replacement of Forensic Science Commission appointees looking into whether arson evidence supported the execution of Cameron Todd Willingham in his children's deaths.

Perry appointees oversee and administer agencies on everything from transportation to prisons, public safety to health care for the poor, public schools to state universities to environmental regulation.

“He stands astride Texas state government,” said SMU political scientist Cal Jillson, noting that because of six-year staggered terms on appointed boards, such a clean sweep can only can happen with longevity.

How you see that depends on how you view Texas' longest-serving governor. Critics see a heavy-handed use of power; his camp says he wields his authority responsibly.

Since taking office in December 2000, the GOP governor has made 4,759 appointments, including reappointments and replacements. That's 1,500 more than George W. Bush, who left in his second term to become president. It's nearing twice as many as one-term Democratic Gov. Ann Richards.

Earlier coverage of Todd Willingham begins with the preceding post; a related post on Gov. Perry's secrecy, here.  One controversial Perry appointee to the Board of Pardons and Paroles, Shanda Perkins, was rejected by Texas Senators in this year's legislative session, as noted here.

Former Governor Mark White Calls for Texas Death Penalty Review

"Review death penalty law, ex-governor urges," is the title of R.G. Ratcliffe's report in today's Houston Chronicle.

Former Gov. Mark White, who was involved in the executions of 20 condemned criminals, says it may be time for Texas to do away with the death penalty.

The death penalty is no longer a deterrent to murder, and long stays for the condemned on death row shows justice is not swift, White said.

More than anything, he said, he has grown concerned that the system is not administered fairly and that there are too many risks of executing innocent people.

White said the state needs to take a serious look at replacing the death penalty with life without parole.

“There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don't look up one day and determined that we as the state of Texas have executed someone who is in fact innocent,” said White.

And:

Noting that he does not know all the facts in the Willingham case, White said it shows how forensic science is evolving. White said there also has been at least one case of a death row inmate being cleared by modern DNA testing. That was the case of Michael Blair, a child sex offender who was convicted of killing Ashley Estell after a playground abduction, but exonerated when DNA testing indicated someone else likely was involved.

“That's two examples of why I think the system is so unreliable it creates an unnecessary possibility that an innocent person would be executed in Texas. And I don't think anybody in Texas wants that to happen,” White said.

The former Democratic governor also said he was upset by the incident in 2007 when the Court of Criminal Appeals was closed to an inmate's efforts to file a last-minute appeal based on a U.S. Supreme Court ruling that came down earlier in the day of his execution. That case has resulted in a State Judicial Conduct Commission investigation of Presiding Judge Sharon Keller.

“That was a horrible procedural error,” White said.

White, as attorney general in 1982, represented the state in the first execution after the death penalty was reinstated. As governor from 1983 to 1987, he oversaw 19 executions.

White said during his tenure as governor, then-Attorney General Jim Mattox was in Huntsville and he remained by the telephone in case an execution needed to be halted at the last minute. White said none of the cases he handled involved claims of innocence.

White said he is not critical of Perry's handling of the Willingham case and would not second guess him.

Wayne Slater writes, "Arson case adds new twist to Texas candidates' death penalty stance," for the Dallas Morning News.

As the debate over whether the state executed an innocent man spills over into the governor's race, Rick Perry and Kay Bailey Hutchison are operating by a longtime rule of Texas politics: Don't mess with the death penalty.

Perry defends the execution of Cameron Todd Willingham and assures conservative voters who will decide the Republican primary that the state's system of capital punishment is sound.

Hutchison's task is more complicated. She argued that Perry, by politicizing the investigation, poses a threat to the death penalty by casting a cloud over the system.

History shows that in Texas, it's nearly impossible to be elected to statewide office without supporting capital punishment.

Polls show that nearly three-quarters of Texans support it, and the numbers are even higher among conservative Republicans.

But even among Democrats, support for the death penalty is a virtual requirement. In the robust Democratic primary in 1990, all three candidates tried to outdo each other on their willingness to execute the bad guys.

"There's a strong law-and-order tradition in Texas," said Corey Ditslear, a professor at the University of North Texas who specializes in judicial politics. "It's a frontier state, a breakaway from Mexico that charted its own path by maintaining law and order."

The Willingham investigation, though, could introduce an element that all candidates dislike: unpredictability.

And:

In 1990, Democrats seeking their party's gubernatorial nomination competed with each other over who was responsible for sending more people to the death chamber.

Ann Richards fended off a commercial in which Jim Mattox accused her of being the choice of Texas death-row inmates.

Mattox touted the fact that he attended most executions as attorney general and helped redesign how officials carried out the death penalty.

And former Gov. Mark White aired a commercial taking personal responsibility for those executed during his tenure.

Walking among the black-and-white portraits of men put to death, White said: "As governor, I made sure they received the ultimate punishment – death."

White, now a lawyer in Houston and the only one of the three Democratic candidates still living, said he supported capital punishment every time he ran for office but no longer does because of the risk of a mistake.

"We're very tough on crime in Texas," he said. "But as tough as old Mark was on crime and for the death penalty, when I review it today, I have very, very serious reservations about trusting our system of government making the right decision every time and not executing an innocent person."

Ditslear said that erosion of public support is reflected in polls. A 2007 poll conducted by Sam Houston State University, found that while 74 percent of Texans support the death penalty, that's down from 80 percent in 2001.

The commercials that Wayne Slater mentioned received so much attention that Saturday Night Live parodied them, a tough task given their already over the top nature.

Slater has more on the Trail Blazers blog at the DMN website, "Long time supporter ex-Gov. Mark White now doubts death penalty."

"Every time I ran for office I was for the death penalty. If I were running for office now, I would tell you that I think the system is not secure enough to make certain that we're not going to execute an innocent person at some future date. And therefore, I think we should see changes made to minimize that possibility. And that may include not having a death penalty but having life without parole."

White, a Democrat, took care to say he's not being critical of Republican Gov. Rick Perry, who has defended his actions in the execution of Cameron Todd Willingham. But, as a lawyer, White said he's grown increasingly anxious about "the frailty of the system."

"We need a statewide lab. We need a lab that is completely independent of law enforcement. And we need one that will give a straight opinion as to whether this evidence is what it says it is or isn't. I have sincere questions about it. And today, I would much prefer that we put people in life without parole than see the prospect of one innocence person executed."

AP is distributing, "Ex-governor White urges rethink of death penalty," this morning, via the San Antonio Express-News.

There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don't look up one day and determine that we, as the state of Texas, have executed someone who in fact was innocent," he said.

White was the state attorney general in 1979-1983 and governor in 1983-1987 and was involved with 20 executions in both capacities.

Earlier Willingham coverage begins with the preceding post; related post in politics.

Continued Coverage of Todd Willingham, An Innocent Executed

Once again, there is a great deal of coverage of the Todd Willingham case on several fronts.  Let's start with David Grann's post at the New Yorker News Desk blog from Friday afternoon,"What Stacy Said."  Here's the entire post:

The crux of the case against Cameron Todd Willingham—which led him to be executed for committing arson and causing the death of his three daughters—was forensic evidence that has since been called into question by some of the nation’s leading fire scientists, as I explained in the magazine last month. Yesterday, the city of Corsicana, Texas, where the fire took place, defended its prosecution of Willingham by releasing an affidavit that was given by Willingham’s former brother-in-law Ronnie Kuykendall, just before Willingham’s execution. In the affidavit, Kuykendall says that Willingham’s former wife, Stacy, had told Kuykendall and other family members that Willingham had confessed to her when she visited him several weeks before his execution. The affidavit had originally been included in a legal brief, filed by the prosecution on February 16th, the day before Willingham’s execution, in response to a new report, by the arson investigator Dr. Gerald Hurst, concluding that there was no scientific basis to the claim that Willingham had set the fire.

The veracity of Kuykendall’s affidavit came into question five years ago. In December, 2004, ten months after Willingham’s execution, the Chicago Tribune reporters Steve Mills and Maurice Possley tracked down Stacy and asked her if Willingham had, in fact, confessed to her. She said, firmly, that Willingham had never done so.

Here is exactly what the reporters revealed, starting with the affidavit:

The response from local prosecutors included a two-paragraph affidavit from Ronnie Kuykendall, the brother of Willingham’s former wife. He said that Stacy, who had divorced Willingham while he was on Death Row, had recently visited him, then gathered the family to say that he had confessed.

But she said in an interview that was untrue. At the time of the trial, she said she had believed in her husband’s innocence, but over the years, after studying the evidence and the trial testimony, she became convinced he was guilty. In their final meeting, however, he did not confess, she told the Tribune.

Moreover, Stacy gave an interview to the Corsicana Daily Sun on February 8, 2004—the very day that Ronnie Kuykendall claimed Stacy had told him that Willingham had confessed. In the interview, she said that during her visit with Willingham he maintained that the fire was accidental and that their daughter Amber had likely caused it:

Willingham laid out the same theory to Kuykendall that he suggested during the Daily Sun interview—that Amber had accidentally set the fire. He said that he woke up to her cry of “Daddy, Daddy.” Willingham said he woke up and saw smoke hovering a few feet above him, then jumped up from the bed where Amber’s body would later be found, put on his pants and ran to the kids’ room where all he could see was fire. Willingham said he never encountered Amber in those initial moments and theorized that Amber had left the kids’ room via a hall that led both to the front door and to another entrance to his bedroom and that’s how he missed her.

In that article, Stacy made it clear that she didn’t believe Willingham’s version of events. But she never once mentioned a confession.

While reporting my New Yorker article, I tried to talk to Stacy, but she said that she no longer wanted to discuss the case. I did ask her if she stood by her statements to the Tribune and to the Daily Sun. She said, “If I said it, then it’s true.”

In today's Chicago Tribune, Steve Mill writes, "Texas execution: Statements by Gov. Rick Perry, others don't align with facts."

Charge: On Thursday, officials in Corsicana, Texas, released a sworn affidavit from the brother of Willingham's wife that he signed shortly before the execution. In it, he claims that Stacy Willingham told her family that her husband confessed to her before the execution.

Fact: In 2004, Stacy Willingham told the Tribune that Willingham never confessed. Earlier this year she told David Grann, a reporter for The New Yorker magazine, that she stood by her statements. She came to believe that Willingham was guilty after she reviewed the case herself.

In addition, on the same day that Stacy Willingham's brother claimed she told the family that Willingham had confessed, she spoke to the local newspaper, saying that during her last meeting with him, he maintained his innocence.

She did not mention a confession.

Charge: Perry has called the fire scientists and investigators who have reviewed the case "latter-day supposed experts." He has suggested they were aligned with death penalty opponents. Both statements appear to be efforts to question their impartiality and their credentials.

Fact: The nine scientists and investigators involved, all of whom have found the original investigation flawed, have worked for both defense lawyers and prosecutors, as well as for attorneys in civil litigation. All are considered among the field's leaders. Some are viewed as prosecution-oriented.

They have no vested interest in the outcome of the debate and are not active in the nation's ongoing death penalty debate.

"My work was a scientific investigation," said Craig Beyler, who investigated the case for the Texas Forensic Science Commission. "There's no political agenda."

"Executed man never confessed to setting fire, ex-wife says," is the title of Dave Montgomery's report in today's Fort Worth Star-Telegram.

The Chicago Tribune reported Sunday that the ex-wife of Cameron Todd Willingham has told journalists that her husband never confessed to setting the fire that killed their three children, contradicting an affidavit released last week by Corsicana officials.

In the statement, Willingham’s ex-wife, Stacy Kuykendall, was quoted as telling family members that Willingham said "that he had set the fire because he knew she was going to leave him." The account came from Kuykendall’s brother, Ronnie Kuykendall, in a statement to an investigator for the district attorney’s office in 2004.

The Tribune published an investigative report in 2004 that raised doubts about the arson investigation in the Willingham case. On Sunday, the newspaper reported that Willingham’s wife told the Tribune in 2004 that Willingham never confessed. This year, she also told David Grann of the New Yorker magazine that she stood by her earlier statements to the Chicago newspaper, the Tribune reported.

Today's Corsicana Daily Sun carries, "New Yorker author responds to Kuykendall affidavit."

David Grann, author of a lengthy article in The New Yorker magazine questioning the arson investigation in the Cameron Todd Willingham case has responded to recent reports about an affidavit filed by Willingham's brother-in-law, claiming that Willingham confessed to setting the fire that killed his three daughters.

Grann said Stacy Kuykendall denied telling family members in 2004 that Willingham had confessed to setting the 1991 fire after being questioned by two Chicago Tribune reporters in December 2004 about her brother Ronnie's affidavit claiming she told the family he did confess.

Earlier coverage begins with this post; all coverage also available via the Todd Willingham category index.

The Beyler report is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled, "Man executed on disproved forensics."  You can also view it as a single page.

Opinion Roundup

We have an OpEd, blog post, and column to fit into this post.

First from the Allentown Morning Call, an OpEd by Ashlee Shelton and Kurt Rosenberg, "Pennsylvania is at serious risk of executing an innocent person.  She is the director of Pennsylvanians for Alternatives to the Death Penalty; he is the director of Witness to Innocence.

It's happened. Investigative reporting and hard scientific evidence indicate a government in the United States has executed an innocent person, an inevitable event that anti-death-penalty advocates have suspected and feared for years.

In 1991, Cameron Todd Willingham's three daughters died in a fire in Texas. Willingham managed to escape. Witnesses stated that Willingham was hysterical and tried mightily to get back into the house to save the girls, even to the point that police had to handcuff him to keep him in place.

But then fire investigators took over. They suspected arson, claiming remnants of the fire, including the burn patterns and cracked glass on the windows, were signs the fire had been set.

Once suspicion fell upon Willingham, the witnesses' statements changed.

And:

It would be easy to sweep this aside as Texas-style justice. But the factors that led to Willingham's wrongful conviction and execution -- junk science, faulty eyewitness testimony, a jailhouse snitch -- exist in cases here in Pennsylvania. Arson experts suggest that innocent people may have been sent to prison in dozens of cases nationwide, including in Pennsylvania.

The case of Daniel Dougherty of Philadelphia is one such case. Dougherty's two sons died in a house fire in 1985. Fourteen years later, in the midst of a bitter divorce, Dougherty's ex-wife claimed that he set the fire.

The evidence that led to Dougherty's conviction and death sentence is similar to that in Willingham's case. Investigators used disproven science, prison informants and questionable eyewitness testimony to claim Dougherty set the fire. John Lentini, a nationally recognized fire expert, told ABC News last year that the investigator in the case ''was so far off base it's unbelievable that no one challenged his expertise or methodology.''

Pennsylvanians for Alternatives to the Death Penalty and Witness to Innocence do not take positions on the guilt or innocence of persons currently before the courts. But we recognize flaws when we see them. And we recognize that Pennsylvania is at serious risk of executing an innocent person. That same conclusion was reached by the American Bar Association's Death Penalty Assessment Team in a report released in 2007.

There is one foolproof way to ensure that the horror that happened to Cameron Todd Willingham in Texas does not happen in Pennsylvania. End the death penalty.

Earlier coverage of Witness to Innocence is here.  This remarkable organization held its 2008 annual conference in Austin.  More on the ABA Pennsylvania assessment is here and here.

The Cornell Daily Sun's blog, A Window on Justice, has, "Should the Death Penalty be Abolished?" by Sara Furguson.

The University Daily Kansan carried Kelly Cosby's column, "Death to the death penalty."

More on the Tim Cole Advisory Panel

Texas Tech University's Daily Toreador columnist Paul Williamson writes, "Texas justice system getting much needed examination."

In 1985 Texas Tech was hit by a series of rapes. This prompted Lubbock police to send a female undercover officer to Tech’s campus to try to lure the Tech rapist.

This is when the officer was approached by Timothy Brian Cole. This act alone caused him to become Lubbock’s prime suspect and put his Polaroid picture in a lineup of photos to show to victims.

It was the only color photo (along with four black and white photos) shown to Michele Mallin, who was a victim of rape on campus. After police and prosecutors described Cole as a “low-life hood” and showed her the photo, she immediately identified Cole as the rapist. Her eyewitness testimony was all that was needed to convict Cole of rape and sentence him to 25 years in prison.

In 1995, Jerry Wayne Johnson started his attempts to contact Cole and try to confess to the crimes he committed. This attempt was ignored by the Texas justice system and his letter never reached Cole.

Cole died in 1999 of an asthma attack in prison.

Last year, DNA evidence proved Johnson was the real rapist and Cole was proven innocent.

Coles’ story is one that is tragic but is making way for the Texas justice system to reform itself. Last May, the Texas government passed legislation creating the Timothy Cole Advisory Panel on Wrongful Convictions. It is a panel that will discuss and research ways in which the criminal justice system can prevent something like this from happening again.

The panel had its first meeting Tuesday.

One of the biggest reasons why wrongful conviction occurs is because of incorrect eyewitness testimony, as was the case with Cole and Mallin’s testimony. Mallin is now a major supporter of eyewitness reform.

And:

Since DNA testing began in 1989, hundreds of people have been proven innocent. This includes individuals on death row. Can you imagine what it is like to be convicted to death for a murder you never committed?

This is the exact reason why the death penalty should be banned. The mere chance of killing an innocent person, which has happened, should be reason enough to ban the death penalty. Even in the age of DNA testing someone could easily be wrongfully convicted. In my hometown of Houston, scandals hit our crime lab where DNA evidence was not handled correctly and lead to many wrongful convictions.

The story of Cole is heartbreaking. But his spirit lives on and his death hopefully will not be in vain as his story is one that has inspired reform in our system to provide for real justice.

Earlier this week John Terzano posted, "Tim Cole Panel Begins Study Texas Wrongful Convictions," at Huffington Post.  He's the president of the Justice Project.

Texas has had more than its share of tragic wrongful convictions. Of the more than 40 people exonerated by DNA in Texas, one of the most heartbreaking cases is that of Timothy Cole. Cole was wrongly convicted in 1986 for a Lubbock rape. DNA testing conclusively exonerated him last year and identified the true perpetrator. But the exoneration came too late. In 1999, Cole died in prison of a severe asthma attack, an innocent man.

So far, Texas has been slow to respond to the long list of mistakes that exist in each of these wrongful convictions. These mistakes have forced innocent people to spend over 500 years in prison for crimes they did not commit. But that may be about to change. Last May, the Texas Legislature approved a bill creating the Timothy Cole Advisory Panel on Wrongful Convictions, and directed the Texas Task Force on Indigent Defense to work with the panel on a report on needed reforms to prevent wrongful convictions. The Cole Panel's inaugural meeting is slated for today.

Read more at: http://www.huffingtonpost.com/john-terzano/tim-cole-panel-begins-stu_b_318426.html

And:

Given the track record of wrongful convictions in Texas, the Cole Panel is a good idea in addressing wrongful convictions, but it is only the beginning. The members of this study group must help all criminal justice stakeholder groups become aware of the issues and build support for common sense change.

No bureaucracy accepts change easily, and our criminal justice institutions are no exception. But they can do much better. All the parties, police, prosecutors, judges and defense lawyers, need to recognize that reforms will enhance the accuracy of our system, and will generate better, stronger evidence against the guilty, while protecting the innocent.

Read more at: http://www.huffingtonpost.com/john-terzano/tim-cole-panel-begins-stu_b_318426.html

More on the Cole Advisory Panel, here.  More from John Terzano is here; all his Huffington Post essays, here.