The StandDown Texas Project

Opinion Roundup

"Considering its high cost and other flaws, execution just isn't worth it," by Susan Taylor Martin of the St. Petersburg Times appeared in the Friday edition of the Austin American-Statesman.

Does it seem like not so long ago that John Allen Muhammad, the D.C. Sniper, was terrorizing residents of the nation's capital? And does it seem as if the state of Virginia executed him with unusual speed just six years from his sentencing to his death?

If it seems that way to you, you're not alone.

Although the U.S. Supreme Court refused to stay Muhammad's recent execution, three justices noted the relative haste with which he met his state-ordered end.

"This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded," Justice John Paul Stevens wrote for himself, Ruth Bader Ginsburg and Sonia Sotomayor.

Nor was Muhammad's case unique. Of the 10 other inmates recently put to death in Virginia, the average length of time between sentence and execution was 6½ years.

Contrast that to Florida, where the last man executed, John Marek, sat on death row for nearly a quarter of a century. And where another inmate, triple murderer Gary Alvord, has been awaiting execution since 1974, the year President Richard Nixon resigned.

The huge disparity in the time it takes states to execute murderers stems from a number of factors. But at the heart of the issue is the death penalty itself and whether it too should be put to an end.

As Florida and other states struggle with shrinking budgets, it becomes increasingly hard to justify sending people to death row and keeping them there for years when even many in law enforcement say there are cheaper, more effective deterrents to crime. Whether execution comes quickly or is delayed for decades, capital punishment has little appreciable effect on murder rates, experts note.

Roman Catholic Bishop Gerald A. Gettelfinger writes, "Is death the only way we have to extract justice for murder?" for Indiana's Evansville Courier & Press.

The State of Indiana has scheduled the execution of convicted murderer Eric Wrinkles by lethal injection before sunrise on Dec. 11 as he has exhausted all avenues of appeal. He does not intend to seek clemency from Gov. Mitch Daniels from his sentence of death.

Wrinkles wantonly slaughtered his wife and two in-laws, members of an extended Evansville family, 14 years ago while under the influence of meth.

He is guilty of the murders. He has admitted his crime and has sought forgiveness from those whose lives he has shattered. He acknowledges that he is powerless to make appropriate restitution for what he has caused.

Indiana has a constitutional right to execute Wrinkles in order to protect its citizens and to prevent him from ever committing such a crime again.

Capital punishment is a matter of justice under the law. But are there not other ways to exact justice for capital crimes without execution?

I am a member of the Indiana Catholic Conference and the Bishop of the Diocese of Evansville where Wrinkles murdered. For over 30 years the Conference has persistently worked toward the abolition of capital punishment in the State of Indiana. We have not prevailed, yet we are determined to continue our effort.

And:

It seems that we are still invoking frontier justice. Indiana is no longer the frontier. The state is able to protect its citizens from murderous criminals by separating them from society by sentencing them to life imprisonment without the possibility of parole.

However, one cannot ignore the reality that deep within the human being there is somehow a "blood lust" as ancient as human kind. Executions were made a public spectacle so as to teach a lesson, or worse were to satisfy base instincts for vengeance and retribution. They somehow gave approval, even applauded, the base instinct of hatred arising from ignorance and fear.

Ironically, executions are sanitized and are accomplished virtually in secret.

Indiana must not pander to baser human instincts. Respectful of all faith traditions, Christians are taught by Jesus Himself that we are not only to forgive our enemies but we are also to love them without approving the wrongs they have committed.

Mary Winnecke of Evansville is an extraordinary example who lives up to that ideal. Her daughter, her daughter's husband and her husband's sister were wantonly slaughtered by Eric Wrinkles. Mary continues to grieve the loss of her family. Nonetheless, Mary urges that the state not kill him.

May the State of Indiana and its leadership heed her pleas.

Roy Exum, columnist for the Chattanoogan in Tennessee writes, "Crueler Than Death."

Not long after the U.S. Sixth Circuit Court of Appeals denied the plea of Cecil Johnson, the convicted murderer was scheduled to finally be put to death in Nashville this Wednesday. I don’t have a problem with that, but what bothers me – a lot, I might add – is that Cecil Johnson has been in prison for over half his life since being sentenced.

That’s right, the 53-year-old killer has been on death row for 29 years and his lawyer, in eleventh-hour desperation, is saying that in itself is “cruel and unusual punishment.” It is hard not to disagree with him if it weren’t for the fact the endless appeals, hearings, trials and legal meandering, all brought about by reputedly the best system in the world, are the reason for the inexcusable delay.

For the record I support the death penalty. I believe that when people are guilty of heinous crimes, the court should have the right – and the duty – to order those convicted to be put to death. Hand-wringing and citing incidents where innocent people have accidentally been executed in the past doesn’t work with me. If the case warrants the death penalty, everybody continues to suffer until we enforce it.

At the CCA

"CCA Show Cause Order Directs Lawyers to Explain Untimely Filing," is the title of Mary Alice Robbins' report for Texas Lawyer.

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Simpson was executed November 18, as noted in this post.

More Commentary Following Robert Thompson's Execution

"Another life gone because of bad law," is the Fort Worth Star-Telegram editorial.  It appeared in the Friday edition.

On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed in Texas this year.

He should still be alive.

Not because he was a good man, because he wasn’t — or least he was not 13 years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were involved in the armed robbery of a Houston store in which clerk Mansoor Bhai Rahim Mohammed was killed.

Evidence showed that Butler shot Mohammed to death, and for this act a Harris County jury sentenced him to life in prison.

Another jury sentenced Thompson to death.

Thompson was guilty of a crime that day. He shot a different store clerk, who survived the incident.

But now this criminal has fallen prey to a flawed, often-misinterpreted law and the callous decision of a governor focused on political ambition rather than justice.

The Thompson case speaks to the capriciousness of how capital punishment is applied in Texas: an actual killer gets to live while his accomplice dies for the same crime. It also brings into clear focus once again the bad piece of state legislation known as the "law of parties."

And:

On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a rare recommendation that the governor commute Thompson’s sentence to life in prison. Gov. Rick Perry, who is not obligated to follow the board’s recommendation, denied the request the afternoon of Nov. 19 and Thompson was executed 45 minutes later.

"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," the governor said in a statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."

Wrong, governor. There was a reason. You simply were blind to it.

The governor, who is engaged in a tough re-election campaign against U.S. Sen. Kay Bailey Hutchison, perhaps could not see past next March’s Republican primary.

In 2007, Perry did follow the recommendation from the Board of Pardons and Paroles in commuting the death sentence of Kenneth Foster six hours before Foster was to have been executed. Foster also had been convicted under the "law of parties" statute, but the governor did not cite that as his reason for the commutation. Instead, he noted his concern that Foster and his co-defendant had been tried together.

Texas is one of only five states with a law of parties statute. It is the only state that applies that law in death penalty cases.

The Star-Telegram Editorial Board is on record calling for the Texas Legislature to address this awful and misapplied law. Bad people should be held accountable for their crimes, but execution based on the law of parties is not right.

A half dozen people have died under this law. That’s six too many.

Patrick McCann, Thompson's attorney, wrote the OpEd, "Texans deserve public, open clemency process," for the Sunday Houston Chronicle.

I represent the indigent condemned. This means that I try to keep those men and women on death row from being executed. It is not all I do as a criminal defense lawyer, but it is what I started doing fresh out of law school 15 years ago, and it is a still a large part of what I deal with every day. I started doing this work out of a combination of the intellectual arrogance of a young man and a curiosity as to how this system worked. I have satisfied the second, and the first has been, as my father once told me it would be, beaten out of me pretty thoroughly. I have stayed in this work because I cannot find a morally acceptable way to walk away from something that needs doing.

My colleague, Rodney Brown and I, recently persuaded the Board of Pardons and Paroles to recommend sparing the life of our client, Robert Lee Thompson. We were grateful for that vote, and for the consideration of the men and women who serve on the board. We were both deeply saddened when Gov. Rick Perry declined to follow the advice of his own appointees and did not exercise his powers of mercy. That is how it goes in this line of work. I wish brighter and better people than me were doing it most days, but I wanted the reader to know this information before they decide whether to continue on.

I am not starting a debate on the death penalty, as people's opinions are their own on this topic. I am simply here to discuss whether it is time we as a state looked hard at the way we decide who is or is not worthy of mercy, and thus, how our clemency and pardon process works. I cannot think of a better time to do this than around Thanksgiving, and as we approach the celebration of the life and death of history's most well known wrongfully convicted man. One of that gentle man's last acts was to forgive a condemned thief, if I recall correctly. We could probably do well to relearn this lesson.

And:

Our current procedures for requesting either a pardon in a noncapital case or a commutation of sentence in either a capital or noncapital case do not require an actual hearing. They do not require a public meeting, open to those who wish to attend. They do not require any explanation to the public for whatever reasons a person's request to have such relief was denied. They require no record, no witnesses, no affidavits, no depositions, nor even a short explanation of the board's reasoning, or the governor's in those rare cases where the two views diverge on a particular case. There is no rational standard for deciding when to grant commutation in non-capital cases, as no one seems to know or to have laid out when too much time is enough. To any outsider, the process seems shrouded in mystery, or at the very least difficult to understand.

This is a shame, because having dealt with the people whom the governor appointed to the Board of Pardons and Paroles, I have found them to be dedicated and hard-working men and women who take their jobs quite seriously. They deserve a more open procedure, one that would inspire confidence in the people of the state, who could see their system hard at work, and who could review the notes or witness statements of an open, public process. This is not what we have now, and it is a shame. It is a shame because given the number of individuals who have been publicly exonerated by the Innocence Project, and given the impact of the Texas habitual offender laws, it would seem sensible to have some process to correct or mitigate the impact of bad laws, mistakes in trials or the actions of corrupt police or other public officials. As it stands now, we do not, at least not in reality. The Houston Chronicle and other news agencies have detailed at some length the lack of clemency here in Texas, and the truth is that there are literally thousands of individuals who are in prison for nonviolent crimes, often for lengthy terms that do not comport with any actual public threat. They deserve the real chance for commutation. Likewise, there are individuals who finished their terms of sentence for minor crimes years ago and went on to lead enormously productive lives as law-abiding citizens. They merit the opportunity for an actual pardon. Finally, there are the wrongfully convicted, who deserve some accessible and open process to clear their names. As has been sadly shown these last few years, that process does not yet truly exist. Courts are reluctant to admit mistakes, nearly as much as police, prosecutors and defense attorneys.

All Texas citizens deserve to have an open, public clemency process, with actual mandated hearings, by which deserving individuals, without the intrusion of politics, can present recorded evidence of rehabilitation, reform, mitigating evidence and even actual innocence, in order to have a means of ensuring that the original results in their cases were the just ones. Whether that comes from a change in the rules the board uses, or an actual constitutional amendment to make that system a reality, it needs doing. The Supreme Court has always believed, perhaps a bit hopefully, that the clemency process could correct the all too human possibility of errors in the system. It is time we made that hope the truth here, and gave Texans a system that could be a model for others across the country. Shakespeare once wrote, in his play The Merchant of Venice, that “mercy is mightiest in the mighty.” It is time we proved that.

Earlier coverage begins is here and here.  More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

A Bradley Family Profile

Gary Scharrer writes the profile, "For Bradleys, it's all in the family – except for politics," for the San Antonio Express-News.

Hard-nosed Texas prosecutor John “Marty” Bradley supports the death penalty. His mother, Shirley Bradley, remains a fervent opponent of it.

Her oldest son, John “David” Bradley, is an outspoken Republican leader among the social conservatives on the State Board of Education. His mom proudly keeps his campaign bumper sticker on her car — along with a bumper sticker promoting Democratic Party icon Hillary Clinton.

Not surprisingly, Shirley Bradley enforces a firm rule when the family gathers for holidays and other occasions: No talking politics or religion.

“It's my rule. ... Those are just forbidden subjects,” the Houston family matriarch says. “We all have heard each other's opinions enough. It was nonproductive. I want to have happy times with them. I respect their opinions. I don't agree with them, but I taught them to have opinions.”

And her two older sons certainly have strong opinions. Both are named John, although the oldest goes by David. Count him among the State Board of Education leaders who helped weaken the teaching of evolution in public school classrooms, pushed phone-tics and back-to-basics reading skills and led an effort to ditch a “fuzzy math” textbook for third-graders.

John Bradley, 50, known as “Marty” among family and friends, is 11 months younger than David. He has a law-and-order reputation as the district attorney in GOP-strong Williamson County just north of Austin. His profile recently was raised when Gov. Rick Perry, in a controversial move, named him the new chairman of the Texas Forensic Science Commission — replacing a chairman who had led the panel's investigation of disputed arson evidence in an execution case.

And:

She recently attended John Bradley's hearing before the Texas Senate Criminal Justice Committee, where he faced some sharp questioning by senators concerned that Perry chose him so he would delay a probe into the arson science that led to the conviction and execution of Cameron Todd Willingham.

She sometimes clips newspaper articles and underscores her agreement with her sons — when she can. David Bradley said he knows they are on opposite sides when the note ends with a simple: “We love you.”

Their mother said she and her husband raised the boys to learn values, integrity and to always be honest, “because if you don't have honesty, you don't have much going for you,” she said. “We encouraged them to have an opinion, gather evidence and enough information to know what you are talking about. Don't just talk.”

Shirley Bradley is equally proud of her two younger sons: Tim Bradley, a commercial real estate broker in Wyoming, and Dan Bradley, a prosecutor-turned-defense lawyer in Houston.

Earlier coverage begins with the preceding post.

Chairman of Texas Forensic Science Panel Oversteps His Authority

That's the title of a Fort Worth Star-Telegram editorial.  It appeared in the Thursday edition.  LINK

What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?

Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives.

Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

The Legislature created the commission in 2005 to investigate complaints that state agencies were negligent or committed misconduct in handling forensic evidence, such as DNA analysis or toxicology, in criminal cases.

And:

Providing consistent and accurate information is an admirable goal. But all nine members of the Texas Forensic Science Commission are appointed independently. They are not subordinate to the chairman, who is not given any specific powers in the law creating the commission.

As public officials, panel members should be free to talk to the media or public as they choose, as long as they don’t undercut the commission’s responsibilities.

Each member should be focused on conducting credible, independent investigations with as much transparency as possible.

No one should use the agency as a tool for aggregating power, steering outcomes, stifling dissent or shielding from public scrutiny the work done on behalf of Texans.

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."

In Ohio

"Federal court allows Dec. 8 execution in Ohio," is the AP report via Google News.

A previously blocked execution set for Dec. 8 can now go forward due to a change in Ohio's lethal injection policies, a federal appeals court ruled Wednesday.

The decision of the 6th U.S. Circuit Court of Appeals means that Kenneth Biros would be the first inmate executed under the state's change from a three-drug intravenous lethal injection to a one-drug IV injection, with a two-drug muscle injection serving as a backup.

The change renders moot Biros' argument that the state's former policy is unconstitutional, said a three-judge panel of the court.

"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect," the court wrote.

The decision could be appealed to the full 6th Circuit or to the U.S. Supreme Court. A message seeking comment was left for Biros' attorney, Tim Sweeney, Wednesday morning.

A U.S. District Court judge had temporarily delayed Biros' execution after the governor halted the lethal injection of another inmate in September because prison staff could not find a suitable vein.

The state announced Nov. 13 that it was changing its protocol, effective Nov. 30, in the wake of the Sept. 15 execution attempt of Romell Broom, who said in an affidavit that executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.

The ruling is here.  Earlier coverage from Ohio begins with this post.

Kentucky: Lethal Injection Procedure Must Comply with APA

That would be the state's Administrative Procedures Act.  The ruling is here.

"High court rules regulation needed for lethal injection," is the title of Tom Loftus' report for the Louisville Courier-Journal.

In a ruling that will indefinitely delay executions in Kentucky, the state Supreme Court ruled Wednesday that the procedure for putting an inmate to death by lethal injection must be spelled out in a state regulation.

The high court ruled that in certain instances — including the protocol for the death penalty — procedures adopted by a state agency in implementing a new law must be adopted as a regulation.

“This court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes,” the majority opinion said.

It directed the Department of Corrections “to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute. ...”

Ed Monahan, the state’s public advocate, released a statement later Wednesday that said the ruling was another reason why his office believes it was inappropriate for Attorney General Jack Conway to ask Gov. Steve Beshear earlier this week to sign execution warrants for three death row inmates.

And:

The process of establishing an administrative regulation begins with an agency writing and proposing the regulation.

The public is given time to comment, and ultimately the proposal goes before the legislature's Administrative Regulation Review Subcommittee, which either adopts or rejects it.

The Lexington Herald-Leader has, "Court: No executions until death penalty process changed," by Jack Brammer.

Kentucky may not execute anyone until it adopts regulations in compliance with the law, the Kentucky Supreme Court ruled Wednesday.

The court ruling came in the case of three Death Row inmates -- Thomas C. Bowling, Ralph Baze and Brian Keith Moore -- who were challenging the state's lethal injection protocol.

And:

In its 35-page ruling, the court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail.

It also said the state should have held public hearings on the process.

The Department of Corrections is required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol except those limited issues of internal management that are purely of concern to department personnel, the high court said.

It identified "limited issues of internal management" as identities of the execution team, storage location of the drugs and other security-related issues.

The AP report, "Ky. court says state must readopt lethal injection," is by Brett Barrouquere, via Forbes.

The Kentucky Supreme Court ruled Wednesday that the state improperly adopted the same three-drug lethal injection protocol that was upheld in the nation's highest court and is used by dozens of other states.

The ruling does not challenge the technique of using three drugs to put inmates to death. It only says the state did not follow proper administrative procedures, including public hearings, before putting it in place.

It came just days after state Attorney General Jack Conway requested execution dates for three condemned inmates, one of whom, Ralph Baze, was a plaintiff in the lawsuit.

And:

Justice Lisabeth Hughes Abramson write in a 5-2 decision that state must comply with the Administrative Procedures Act and post public notices and hold hearings before adopting an execution protocol.

The Case of Bobby Woods

The Texas Observer has streaming video of Bobby Woods to complement Renee Feltz' report, "Possibly Retarded Prisoner Faces Execution."

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters — many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Woods was sentenced to die in 1998 for kidnapping, raping and murdering 11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is responsible for cutting Patterson's throat. But the cousin committed suicide the week following Woods' arrest. Levin acknowledges "the facts of this crime are very difficult," but she notes the ban on executing the mentally retarded applies no matter how heinous the offense. Levin and students with the Capital Punishment Center at the University of Texas Law School began working on Woods' case just before he was scheduled to be executed in October 2008. Their efforts followed years of cringe-worthy legal representation by Richard Alley, one of just two attorneys the Texas Court of Criminal Appeals has removed from its list of lawyers qualified to represent death row prisoners in their appeals. He visited Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the list — who was being taken to task in a federal court at the very same time he's being appointed to represent Bobby in his federal proceedings, and then for Bobby — a mentally retarded man — to suffer the consequences of that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital habeas cases. While he raised 28 issues in Woods' state habeas appeals, just two were actually new and neither was backed by useful evidence. In contrast, Levin and her students were able to contact family members who described how Woods was a slow child who suffered from learning disabilities and was called "retard" by his classmates, and "always needed to live with someone who could take care of him" when he was older. Their investigations revealed that while Woods had held a steady job as a short-order cook at Waffle House, he had to have the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

The poor performance of some lawyers in state habeas proceedings for Texas death row inmates has been well documented in recent years, sparking State Bar action, legislation, and new rules by the Texas Court of Criminal Appeals.  Chuck Lindell  wrote the Austin American-Statesman's 2006 series noted  here.  Maro Robbins' earlier coverage of habeas issues in the San Antonio Express-News is here and here.

The Texas Defender Service report, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts, highlighted problems with the performance of attorneys appointed in the state habeas phase of post-conviction review of death sentences.  It's avaialble at the TDS website.  It was published in 2002.

Doctor's Help Sought in Failed Ohio Execution Try

That's the title of an AP report by JoAnne Viviano, via Google News.  LINK

As an Ohio execution team tried to find a vein during an unsuccessful lethal injection attempt, prison staff sought help from a doctor — a move generally discouraged by ethical and professional medical rules — federal court papers show.

Dr. Carmelita Bautista said in a deposition filed in U.S. District Court that she had never before been involved in an execution.

"No, because I am a doctor," she tells a lawyer questioning her. "We are supposed to help people who are sick. We're supposed to heal people as such as we can."

Bautista said she tried to insert an IV catheter into Romell Broom's foot during the execution attempt on Sept. 15 at the Southern Ohio Correctional Facility in Lucasville. Gov. Ted Strickland postponed it after several hours because a useable vein could not be found.

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." Dr. Rebecca Patchin, its board chairman, has said that being involved in capital punishment in any manner undermines a doctor's role as a healer.

But some doctors feel it's ethically permissible to participate in executions because they are helping inmates avoid pain and ensuring a peaceful death, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center.

While Kentucky and Illinois rules say doctors shall not participate in executions, many states have "distant participation" by medical doctors to determine that death has occurred, Dieter said.

And:

Reached at her home in West Virginia on Tuesday, Bautista said she is not part of Ohio's execution team and does not feel as though she assisted in the execution process.

"I was just called to help to see if I can find an IV site," said Bautista, who is not an American Medical Association member. "They just asked me if I can see an IV site, and I did not see any problem with that."

Bautista, who is on staff at Thomas Memorial Hospital in South Charleston, W.Va., was deposed in October in a long-standing lawsuit in which several inmates challenge Ohio's three-drug death penalty protocol as unconstitutional.

In a separate U.S. District Court case, Broom's lawyers have argued that the state should not be permitted to try to execute him a second time. A federal judge is to hear arguments in the case on Monday.

Bautista occasionally works at the infirmary at the Lucasville prison and was there when asked by the prison's health care administrator to help with Broom. She said in the deposition that she spent less than five minutes in his holding cell.

She said she had never before been to the Ohio death house and that she was unaware until that day that the state's executions took place at the prison. She said she told the nurse who escorted her to the death house that she was frightened.

"I was scared of going to that place. I told her, 'I'm so scared,'" Bautista said in the deposition. "Because she told me that there was this guy who they were trying to see if they can get an IV to be executed. That's why I'm scared."

Earlier coverage from Ohio begins here.  Notable posts on physician participation include:

• Doctors in the Execution Chamber
• Doctors Won't Kill for the State
• Doctor Quits Prison Job Over Execution
• An Absolute: Doctors Don't Kill
• Toxic Tinkering
• Ethical Implications of Modifying Lethal Injection Protocols
• AP Interview with Dr. Alan Doerhoff

The Keeper and the Kept

That's the title of a new report from the W. Haywood Burns Institute that will be issued Tuesday.  Shadi Rahimi writes, "National Leader in Juvenile Justice Poised to Release New Report."

For the families of the more than 90,000 youth in custody of the juvenile justice system any given day, Thanksgiving delivers heartbreak. A majority of incarcerated children in the U.S. are youth of color held for mostly nonviolent offenses. For this, our society pays a high moral and financial price, says James Bell, Executive Director of the W. Haywood Burns Institute (BI) and lead author of its new report on juvenile justice, The Keeper and the Kept.

“As a society we do not demand nor expect excellence, fairness, rationality or accountability from our child-serving justice systems. But there is too much at stake for our democratic principles and our ability to compete in a global knowledge-based world,” Bell says. “As a country, we are not well-served when we have so many uneducated youth of color undeservedly lost in the American juvenile justice apparatus. We can do better. But in order to, we must demand accountability from our juvenile justice systems.”

Systemic problems in juvenile justice are at the forefront of conversation today, particularly regarding juvenile imprisonment for life without parole. On a national level, Black youths are serving life without parole at a rate of about 10 times that of White youths, according to Human Rights Watch. At the same time, the federal Juvenile Justice And Delinquency Prevention Act (JJDPA) is overdue for reauthorization and is expected to go before the Senate Judiciary Committee this week. The BI, along with the coalition Act4JJ, is pushing for JJDPA reauthorization for reasons including: 1) reducing racial and ethnic disparities in juvenile justice; 2) preventing youth awaiting trial in criminal court from adult lock-up; 3) limiting the time that children who are truant, runaway or violate curfew may be held in juvenile lock-up.

More Juvenile Sentencing Reform Commentary

Alexandra Cox posts, "Why Brain Science Is Bad for Juvenile Justice," at Huffington Post.  Cox is a research consultant for the Brooklyn-based Institute for Juvenile Justice Reform and Alternatives.

The Supreme Court will decide next year about whether they will allow the use of life without parole for juvenile offenders. Though these cases cover relatively narrow issues, this is an opportune time to start raising more serious questions about meaningfully fighting the extraordinary levels of punitiveness toward young people and adults that should be a source of shame for our nation.

Andrew Purcell's OpEd, "On Trial: System That Locks Children up for Life Without Hope of Freedom," is available through Common Dreams.

The organisations challenging this include the National Association of Social Workers, Mothers Against Murders, the Correctional Chaplains Association, the Juvenile Law Centre and a list of religious groups who believe that however grave the offence, it is inhuman to offer a child no hope of redemption.

The Supreme Court abolished the death penalty for minors with its decision in Roper v. Simmons four years ago. In his majority opinion, Justice Anthony Kennedy wrote that teenagers are less capable of making mature decisions, more likely to act impulsively and more susceptible to peer pressure than adults. He also observed that because their characters are not fully formed, they have more potential to become productive members of society.

The petitioners in Graham v. Florida argue that this reasoning should apply beyond capital crimes, especially where no death was involved. Terrance Graham robbed a woman at gunpoint in her home, a few weeks after ­completing a previous prison stint for armed burglary and assault. He was 17 years old. The judge sentenced him to life without parole.

The other case being considered by the Supreme Court, Sullivan v. Florida, concerns a mentally impaired 13-year-old who raped an elderly woman. As things stand, Joe Sullivan is one of at least 73 prisoners destined to remain behind bars until they die, for crimes that were committed before they turned 15.

Earlier coverage of Graham v. Florida and Sullivan v. Florida begins with this post.

Case Law Now on Google Scholar

Thanks to TechnoLawyer's Blawgworld, I've read Dan Friedlander's Law On My Phone post, "Google Enters Into The Realm Of Legal Research And Adds Legal Opinions To Google Scholar."  Here's a snippet from the beginning:

Is this the beginning of the end for Westlaw and Lexis? Today, Google added the ability to search legal opinions through Google Scholar. As a litigator, I rely quite heavily on Westlaw to conduct online legal research and have become quite proficient at creating searches that will quickly and efficiently get me good results. (I have used Lexis as well, and don't intend to debate the differences between the two services.) But, as good as Westlaw's database is, their searches are slow and their web interface is cluttered.

I was wondering when Google was going to enter the legal research field and was excited to hear that the day has finally come. Considering that Westlaw and Lexis have had a monopoly over online legal research for the last 20 years, I was curious to see Google's take on legal research. After all, who knows search better than Google?

After playing with Google Scholar for a couple of hours, I am very impressed with the service. It is nothing short of amazing and will create some serious competition for Westlaw and Lexis. It is important to note that, as of today, only legal opinions and journals are available through Google's database. In that sense, and until statues and regulations and included, it is not yet a comprehensive research tool for attorneys. I wouldn't think this would be very difficult for Google to add and, as is evident from the way Google treats case citations and references related cases (see below), statutory annotations and links to citing cases should follow.

In order to get the full benefit of Google Scholar's legal search capabilities, searches should be conducted through the Advanced Search page. Scroll to the bottom of the page to select your jurisdiction. You may also want to increase the number of returned search results to 50 or 100 in the upper right hand corner of the page or in your search preferences. Once your jurisdictions are selected, the various search fields at the top of the page provide a lot of flexibility in specifying search parameters.

The Google Blog has more:

As many of us recall from our civics lessons in school, the United States is a common law country. That means when judges issue opinions in legal cases, they often establish precedents that will guide the rulings of other judges in similar cases and jurisdictions. Over time, these legal opinions build, refine and clarify the laws that govern our land. For average citizens, however, it can be difficult to find or even read these landmark opinions. We think that's a problem: Laws that you don't know about, you can't follow — or make effective arguments to change.

Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. To understand how an opinion has influenced other decisions, you can explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can follow citations to the opinions to which it refers. You can also see how individual cases have been quoted or discussed in other opinions and in articles from law journals. Browse these by clicking on the "How Cited" link next to the case title. See, for example, the frequent citations for Roe v. Wade, for Miranda v. Arizona (the source of the famous Miranda warning) or for Terry v. Ohio (a case which helped to establish acceptable grounds for an investigative stop by a police officer).

ABA Assessment For Kentucky's Capital Punishment System

The Louisville Courier-Journal reports, "Beshear asked to halt executions for study of Kentucky’s death-penalty system," by R.G. Dunlop.

Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system.

The request, sent in letters Monday to Beshear and Attorney General Jack Conway by two of the state’s top public defenders and a dozen Kentucky lawyers, came the same day as Conway asked the governor to set execution dates for three death-row inmates.

Neither Beshear nor Conway indicated Monday that they would grant the request for a moratorium.

Beshear spokeswoman Kerri Richardson issued a statement saying that the governor “supports the death penalty for violent and heinous crimes and reviews each case to see if extenuating circumstances exist.”

Kentucky is the ninth state the American Bar Association has targeted for an assessment of the capital-punishment system. The assessment team met for the first time only last week, and could take a year or more to complete its work.

The Courier-Journal reported earlier this month that the state’s capital-punishment system is so ineffective that more death-row inmates are dying of natural causes than are being executed. The newspaper found that more than one-third of the state’s 35 current death-row inmates have been there at least two decades.

The ABA says the focus of the Kentucky study will, like those in the other states, be a dozen areas of death-penalty administration, including the adequacy of training for prosecutors and defense lawyers, the preservation and testing of DNA evidence, law-enforcement interrogation and identification procedures, the appeals process, clemency proceedings, jury instructions, the treatment of racial and ethnic minorities and mental retardation and mental illness.

Similar studies in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee found compliance problems in every state with a wide range of ABA policies.

The findings were intended to serve as the basis for reforming those states’ capital-punishment systems, imposing moratoriums on executions or launching even more comprehensive self-examinations of death penalty-related laws and processes, according to the ABA.

Indiana’s assessment included a recommended moratorium on executions, but former Gov. Joe Kernan said Monday that the request has not been acted upon. Nevertheless, Kernan — a member of the Indiana study team, whose work was done after he left office — said the effort was worthwhile.

“There’s a greater awareness in Indiana than there was five years ago,” he said.

Kentucky was selected as the next state in part because its death row isn’t prohibitively large for analysis and because it is the only state to have experience with a racial justice act, according to the ABA.

Kentucky’s law was enacted by the General Assembly in 1998 to eliminate racial bias in death-penalty cases. Under the statute, a judge is allowed to consider evidence of discrimination before a capital trial.

“The ABA has supported this kind of legislation for many years,” said Stephen Hanlon, a Washington, D.C. attorney and chair of the committee overseeing the ABA’s review of states’ death penalty systems. “We are hoping to learn what, if any, impact such legislation has on application of the death penalty.”

Although the ABA has no formal position on capital punishment, it asked states and the federal government in 1997 not to impose it until they implemented policies and procedures intended to ensure that death-penalty cases were “administered fairly and impartially, in accordance with due process,” and to “minimize the risk” that innocent people might be executed.

And:

Ten Kentucky lawyers and former judges have been appointed by the American Bar Association to perform an in-depth assessment of the state’s death-penalty system.

Linda S. Ewald , co-chair, law professor, University of Louisville
Michael Mannheimer , co-chair, associate law professor, University of Northern Kentucky
Michael Bowling , attorney, Steptoe & Johnson, Bell County
Don Cetrulo , attorney, Knox & Cetrulo, (former director of the Administrative Office of the Courts), Lexington
Allison Connelly , director, legal clinic, University of Kentucky
Martin Johnstone , retired Kentucky Supreme Court justice
James Keller , retired Kentucky Supreme Court justice; attorney, Gess Mattingly & Atchison, Lexington
Frank Hampton Moore Jr. , attorney, Cole & Moore, Bowling Green
Marcia Milby Ridings , attorney, Hamm, Milby & Ridings, Laurel County
Gordie Shaw , commonwealth’s attorney, 14th Judicial Circuit (Bourbon, Scott and Woodford counties)

"Ky. AG seeks execution dates for 3," is the AP report written by Roger Alford, via the Williamson Daily News.

Attorney General Jack Conway requested Monday that execution dates be set for three convicted murderers on Kentucky’s death row, including one whose case questioned the use of lethal injection nationwide.

Conway sent letters to Gov. Steve Beshear asking for execution dates for Ralph Baze Jr., Robert Foley and Gregory Wilson, whose appeals have been exhausted in state and federal courts.

“There are no remaining legal impediments to the finality of these death sentences,” Conway said in a statement. “The horrific crimes these men committed have taken an enormous toll on the victims’ families, for whom this may bring closure.”

And:

Spokeswoman Kerri Richardson said the governor has received Conway’s requests.

“The governor will carefully review each request and examine the legal status of each case before making any determination on execution dates,” Richardson said.

Ed Monahan, head of the Kentucky Office of Public Advocacy, said all three of the inmates have litigation pending in either state or federal courts. He said he has sent a letter to Conway asking him to withdraw the requests and a letter to Beshear asking him not to sign any death warrants until after an independent review is conducted of the state’s use of the death penalty.

“We want to make sure there are no unjust executions,” Monahan said.

Kentucky has executed three people since 1976. Harold McQueen was electrocuted in 1997 for killing a convenience store clerk in 1981. Eddie Lee Harper died by lethal injection in 1999. Marco Allen Chapman also died by lethal injection in November.

Conway’s call for execution dates came on the same day that a group of Kentucky lawyers asked for a moratorium on executions. Louisville attorney Jason Nemes, former head of the Administrative Office of the Courts and spokesman for the group, said no executions should be scheduled until after the American Bar Association evaluates the use of the death penalty in Kentucky.

Nemes said the American Bar Association already has appointed a team to conduct the evaluation, which would likely take about two years to complete.

Previous assessments organized by the American Bar Association's Moratorium Implementation Project are at the ABA website.  Related articles and news coverage of other state assessments are in the ABA category index.

Clemency in Ohio

"Governor grants clemency to 78, none on death row," is Julie Carr Smyth's AP report via the Akron Beacon Journal.

Ted Strickland on Monday granted clemency to 78 inmates, none on death row, after a painstaking review of three years of requests extending into his predecessor's term.

Sixty-eight people, most of whom had already served their time, were granted pardons. Sentences for 10 people were commuted; most of them are still behind bars and expecting release.

Among those receiving commutations is a Toledo gang member, Willie Knighten Jr., whose judge openly expressed second thoughts about his conviction. Knighten, 37, had written more than 100 letters to authorities insisting on his innocence since he was convicted of murder in 1996. He has served 12 years in prison.

Karla Hall, staff attorney at the Ohio Innocence Project, said she was delighted to hear Knighten's sentence had been commuted.

''I'm thrilled for Willie and think he will absolutely become a great citizen. He has a great deal of family support behind him,'' she said. ''I would be completely comfortable if he moved in as my next-door neighbor.''

Strickland, a former prison psychologist, said he personally reviewed all 296 clemency applications. He estimated that he, chief legal counsel Kent Markus and staff members put in 1,000 hours reviewing the requests, made between 2005 and 2007.

Of 63 clemency requests from 2005 and 2006 and lingering from the administration of Gov. Bob Taft, Strickland denied 30 and granted clemency 33 times — 29 pardons and four commutations.

Of 233 clemency requests from 2007, he denied 188 requests and granted clemency 45 times — 39 pardons and six commutations.

Strickland agreed with the recommendations of the Ohio Parole Board 267 times out of 296, or 90 percent of the time. He disagreed 16 times with board recommendations to grant clemency, and disagreed 13 times with its recommendations to deny clemency.

And:

In January 2008, Strickland commuted the death sentence of convicted murdered John Spirko to life in prison. Spirko maintained he did not kill postmistress Betty Jane Mottinger in 1982, and the lack of physical evidence linking Spirko to the murder left the governor with ''slim residual doubt.''

Strickland now turns to 177 cases recommended for clemency in 2008 by the parole board, then to 226 requests made this year.

Alan Johnson writes, "Strickland frees killer he says is innocent," for today's Columbus Dispatch.

Nearly three years into his administration, Gov. Ted Strickland yesterday released nearly 300 clemency decisions, freeing a Lucas County murderer, pardoning a former Chauncey village official on 30-year-old charges, and conditionally pardoning a Columbus lawyer who defrauded his clients of $1 million.

The decisions were the governor's first on more than 700 clemency requests that had gone undecided since the final years of the Taft administration.

Overall, Strickland approved clemency in 78 of the 296 criminal cases (26.3 percent) that he considered, including commuting the life sentence of Willie Knighten Jr., convicted of murder in Lucas County in 1996. Knighten, 37, is scheduled to be released today from the Allen County Correctional Institution, officials said.

"The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement. The sentencing judge, the late William Skow, sent the governor a letter this year saying he felt he had made the wrong decision in the case.

Strickland, a Democrat in his third year in office, OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to Strickland in 2006 and 2007.

And:

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.

"I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."

Strickland said that while he is not worried about critical fallout from the commutations, he acknowledged that his staff is concerned.

"I can think of no quick and easy way to do this," he said. "If it was just a matter of getting a request and rubber-stamping what the parole board said, it would be done rather rapidly. I think my responsibilities are deeper than that."

The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses.

"In every case, these pardons have been granted to individuals who have completed their entire sentence, usually many years ago. Virtually every case involves an individual who has not re-offended with the exception of traffic violations. The individuals granted pardons today have demonstrated that they have been rehabilitated and have assumed the responsibilities of citizenship," the governor's office said.

"People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.Strickland also approved clemency in 10 cases because of what he called "fundamental injustice," or because the sentence was disproportionate to other inmates who committed similar crimes.

The governor has 403 more clemency requests pending from 2008 and this year.

The Springfield News-Sun has, "Governor pardons 68, commutes sentences for 10 others," written by Laura A. Bischoff.

Gov. Ted Strickland on Monday, Nov. 23, granted pardons to 68 Ohioans and commuted the sentences for 10 others, including a Lucas County man who has served 12 years for a murder that the governor and the trial judge believe he likely did not commit.

Strickland said Willie Knighten, 37, who was convicted of murder and attempted murder in 1997, should be released as soon as possible.

“After careful and diligent examination of the totality of the materials available to me, I believe that the sentence imposed upon Willie Knighten was in all likelihood imposed for a crime that he did not commit,” Strickland said.

William Skow, the trial judge in Knighten’s case, wrote an extraordinary letter to the Ohio Parole Board shortly before his death, saying his verdict was wrong.

Strickland also commuted the sentence of convicted killer Sonya Jackson, 48, saying her 20 years to life sentence was excessive.

Out of 296 requests, Strickland denied 218 and granted 78. He still has to decide 403 applications he received in 2008 and this year.

And:

“I’d describe it as a very careful use of clemency powers, based upon the totality of the information we had available to us,” Strickland said.

The Ohio Constitution grants the governor broad powers when it comes to clemency. He can use them to reduce sentences or wipe out criminal records for any offenses save treason and impeachment. This is the first time Strickland has used clemency powers in non-death penalty cases since taking office nearly three years ago.

Commuting sentences of prisoners can sometimes haunt a governor if the offender commits some heinous crime after clemency is granted. It can also invite political charges of being soft on crime.

Related articles are in the clemency category index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Right and Left Join Forces on Criminal Justice

That's the title of Adam Liptak's report in today's New York Times.  LINK

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

And:

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

Review of Louisiana's Post-Conviction Process

"Kimball: Justice must be efficient but fair," is one of two articles written by Alison Bath for the Shreveport Times.  Both appeared in Sunday's edition.

In September, Louisiana Supreme Court Chief Justice Catherine D. Kimball announced the formation of a court committee to study the state's post-conviction process.

The committee — comprised of judges, attorneys and law professors and chaired by Justice Jeannette Theriot Knoll — will try to determine why post-conviction appeals take a lengthy time to complete. The study will examine all post-conviction appeal processes, including those involving death penalty cases, with the idea of easing the burden on the judiciary and bringing cases to a quicker conclusion while still adhering to constitutional guidelines.

Panelists met in October and are expected to convene in January. Kimball recently spoke with The Times about the committee and the state's post-conviction process.

Question: What inspired formation of the committee to study post-conviction procedures?

Answer: Our court has determined its No. 1 priority, administratively, is to try to improve the case processing throughout the state. One of the big issues we noticed in our court is we get a tremendous amount of post-conviction cases, and some of them seem to take years and years to get to us.

Q.: Please quantify how the breakdown in the post-conviction process is impacting the state's judicial process.

A.: You're not seeing finality to the judgment. And in many cases, such as in the case of capital cases, you're seeing repetitive post-conviction cases, which are not supposed to happen. You're not supposed to file four cases on the same issue.

Post-conviction cases take an inordinate amount of judicial staff and district attorney time. In our court last year (2008), we had in 1,197 post-conviction cases filed. If you think about the judge time and the staff time it takes to review that many cases, it's really a significant portion of our docket.

No one is suggesting we don't do what is required, but we should be alleviating things that shouldn't be in the system.

Q.: What are some of the reasons post-conviction appeals may be languishing?

A.: Some of the cases, we noticed, seemed to have an inordinate amount of filings. "» We don't know if they aren't being processed efficiently at the district level. Sometimes the judges aren't even aware appeals aren't being filed. They operate if there is an order for a judge to sign; if there isn't an order, it will go to the clerk's office.

We don't know what is causing the slowdown, really. My guess is that in different jurisdictions there are different ways of processing that maybe slower than in others.

Q.: Is a shortage of qualified, competent capital case appellate attorneys impacting the situation?

A.: Certainly we have heard of that. We are going to, hopefully, get more information about how all of that process is working. Information such as how many lawyers are available, how they contact lawyers/firms about pro bono cases, we just don't have that information.

Appointment of indigent defenders already is centralized. The court did, in fact, adopt a rule because we were not seeing the cases being handled as well as they could. We adopted a rule and required certification for capital attorneys. The Legislature created the state public defender board and gave them those responsibilities.

And:

Q.: How do you respond to frustration with the length of the post-conviction process, especially in death penalty cases?

A.: It's a matter of U.S. constitutional fundamental fairness issues. I know people sometimes get really frustrated with the length of time cases take. We are not looking, by any extent of the imagination, to speed up the process to execute people before what is due them. I know that the public thinks it should be quicker. To the extent cases can move forward without affecting the fairness of the process, they should.

If it were my husband or whomever, I would feel like some people feel. I think anyone would if their spouse was a victim or if they were related to a victim.

But our law is based on fundamental fairness, and we have to ensure that everyone's rights are fairly guaranteed.

"Justice delayed feels like justice denied to some," is the second article.

Nineteen years ago, a Caddo jury ordered convicted quadruple murderer Nathaniel R. Code Jr. to die for his crimes.

Today, the 53-year-old Shreveport native remains on death row. His victims' families wait for justice.

"If he had been in Texas, he probably would have been gone two years after it happened," said Shreveporter Nikki Brown, whose mother, Deborah Ann Ford, was found beaten, bound, stabbed and nearly decapitated in 1984. Code was arrested and charged with the Ford's killing but never prosecuted. In all, he was linked to eight homicides between 1984 and 1987.

"Texas really don't play, and I wish he was in Texas because he would be gone and I wouldn't have to pay taxes for him to be sitting up there in Angola getting fat," Brown said.

For Brown, other relatives of murder victims, prosecutors, law enforcement officials and many citizens, the wheels of Louisiana's justice system turn too slowly. Inmates languish on death row during a lengthy appeal process that finds murder victims' families forced to relive a crime over and over, they say.

They wonder why other states such as Texas, Oklahoma and Virginia seem to carry out executions more efficiently — and frequently. With 446 executed, Texas has put more people to death than any other state in the nation since capital punishment was reinstated in 1976. By comparison, Louisiana has executed 27 men — the last in 2002 — over the same time period. Sixty-five percent of the Pelican State's current 84 death row inmates were sentenced to death before 2000.

And:

But others say Louisiana's justice system works the way it should — offering death row defendants the rights guaranteed them in the Louisiana and U.S. constitutions. Critics say following the lead of Texas, which is under increasing scrutiny for a justice system criticized as inherently flawed, would be a mistake.

"The system hasn't worked in Texas," said Jim Marcus, an adjunct professor at the University of Texas at Austin School of Law. "A lot of people have been executed. And if that's the only thing you care about and you don't care if anyone is getting review, executing the right people or paying lawyers for shoddy work, then I guess the system works."

And:

The Louisiana Supreme Court recently formed a committee to evaluate the state's post-conviction process, which includes appeals of various criminal convictions, including death penalty cases. The court reviewed 1,197 post-conviction cases in 2008 — a tremendous workload, Chief Justice Catherine D. Kimball said.

The committee would identify reasons for a slowdown in case processing and explore solutions to increase effectiveness and efficiency, she said.

"Our law is based on fundamental fairness. And we have to ensure that everyone's rights are fairly guaranteed but, at the same time, pursue the best process we can where things don't languish where they shouldn't languish," Kimball said.

In 2004, Cameron Todd Willingham was executed in Texas for the arson-murders of his three daughters. A report sent to Gov. Rick Perry in the hours before Willingham's execution pointed to flaws in the investigation and alleged that proven scientific methods and testing didn't support the investigators' finding that he intentionally set the house fire in December 1991 that killed his 2-year-old toddler and infant twin daughters. The report, which indicates Willingham might have been innocent, may have been ignored.

Since then, the case has touched off a nationwide debate pitting death penalty supporters against opponents who say Willingham is proof Texas has executed an innocent man.

The case also has drawn even more scrutiny of Texas' judicial system and use of capital punishment already under fire by critics, who say abuses and flaws are widespread.

"The fact is there are no impediments to the implementation of the death penalty in Texas," said Kristin Houle, executive director of the Texas Coalition to Abolish the Death Penalty.

Eleven Texas death row inmates have been exonerated since 1973, according to Death Penalty Information Center statistics. Forty Texas inmates convicted of a variety of crimes have been exonerated through DNA testing since 1994, The Innocence Project of Texas says.

In Louisiana, eight death row inmates have been exonerated, the information center states.

The Latest Lethal Injection News From Ohio

"New lethal injection policies put Ohio at center of legal and ethical debate over executions," in today's Cleveland Plain Dealer is written by Aaron Marshall.

Death row inmates and advocates on both sides of the capital punishment debate across the country have had their eyes on Ohio since the recent announcement that this state will pioneer the use of a single drug to execute inmates.

Earlier this month, Ohio prison officials announced they will abandon the three-drug cocktail for lethal injection in favor of a single injection of a massive dose of barbiturates. If the execution team is unable to find a suitable vein, the drug will be injected into an inmate's chest muscle.

Both procedures are unprecedented in modern American execution practices, and the new blueprint has thrust Ohio into the center of the raging ethical and legal debates that swirl around capital punishment.

"It could be a significant turning point in the direction of the death penalty in this country," said Ohio State University Law School professor Douglas Berman, an expert on criminal sentencing and the death penalty. "It's already a turning point that Ohio is willing to try something new, but the real question is, will the courts be comfortable with Ohio's efforts? Will the better mousetrap, if you will, prove to be successful in Ohio?"

The new approach comes after a badly botched execution on Sept. 14 when the execution team failed to find a usable vein in the arm of inmate Romell Broom, who raped and killed 14-year-old Tryna Middleton of East Cleveland in 1984. Similar problems haunted the execution of killers Joseph Clark in 2006 and Chris Newton in 2007, although officials were eventually able to open veins and execute the men after lengthy delays.

And:

Jeff Gamso, a defense attorney who handles death penalty cases for the American Civil Liberties Union of Ohio, which opposes the death penalty, said the one-drug method makes Ohio unique, but doesn't clear up whether this is a more humane way to kill people.

"Nobody really knows because nobody had ever done this before," he said. "Just because you gave up a bad idea doesn't mean you replaced it with a good idea."

However, Ty Alper, associate director of the Death Penalty Clinic at the University of California-Berkeley, which serves as a resource for defense attorneys suing states over lethal injection methods, said the one-drug method should cause less pain to the victim than the three-drug cocktail.

"I think this is something that is pretty well accepted," he said. "It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."

The first Ohio inmate to be executed using the single-drug method could be Kenneth Biros, a killer from the Youngstown area who has a Dec. 8 execution date. A federal judge has placed a hold on Biros' execution based on his argument that the three-drug cocktail could have caused severe pain in violation of his constitutional rights barring cruel and unusual punishment.

Also:

Law professor Berman said the state would like to get Biros executed with the single dose of painkillers to return to business as usual long before Broom, who sparked international attention with his botched execution, is back in the death chamber.

"My sense is they would like to make Biros -- for a lack of a better term -- the guinea pig for this new method," Berman said. "But this is brand new territory. We've never before seen a state that because of botched executions decides to change its methods midstream."

If Ohio's one-drug method does work uneventfully in executing prisoners, it could remove the excessive pain argument from the arsenal of Ohio defense attorneys. However, the new procedures also open up new grounds for legal challenges, experts say.

For example, Alper said that the state's backup plan for injecting the drug directly into the chest muscle if a suitable vein can't be found is a complete unknown and thus a potentially potent legal issue.

"It will depend on the backup plan and whether that is something the courts will accept," he said. "There are a lot of open questions about injecting the drug intramuscularly as opposed to intravenously. There are fewer open questions about one-drug protocol."

Andrew Welsh-Huggins filed the AP report, "Lethal injection creator fine with 1 drug in Ohio," Sunday.

The man considered the father of lethal injection in the United States said it doesn't matter whether three fatal drugs are used or one — as his home state of Ohio has proposed — as long as the drug works efficiently.

Dr. Jay Chapman, who developed the lethal three-drug cocktail in the 1970s when he was the Oklahoma state medical examiner, said Ohio's decision to become the first state in the nation to use only one drug achieves that goal.

He said there was no particular reason he didn't propose a single drug, other than a concern that it might take a little longer to work. His three-drug method became widespread after states copied Oklahoma.

Now Chapman, semiretired in California at age 70, said he believes the system he helped create shows condemned inmates too much mercy.

And:

Chapman, a forensic pathologist, was the Oklahoma medical examiner while state officials were looking for a new execution method shortly after the U.S. Supreme Court declared capital punishment constitutional. Lawmakers then began looking for a humane method of execution to replace the electric chair.

Chapman initially proposed a two-drug approach: an anesthetic followed by a paralytic drug. He later added potassium chloride, to provide for instantaneous death.

"We felt that by going with this type of regimen, no one could suggest that it was cruel and unusual because people undergo this very protocol every day for anesthetic for surgery world-round," Chapman said.

On Saturday, AP distributed, "Lawyer: Ohio's legal injection a human experiment," also by Welsh-Huggins, via Google News.

An attorney for a condemned killer says Ohio's new lethal-injection plan is so untested it would amount to human experimentation if used for the first time next month.

Lawyer Tim Sweeney said Friday there's no reason for federal courts to allow the scheduled execution of Kenneth Biros in about two and a half weeks given the lack of details in the proposed system.

Biros has argued Ohio's three-drug vein injection could cause severe pain, in violation of the Constitution.

The state last week replaced that system with a single dose of anesthetic. It says the new approach renders Biros' complaint moot.

Earlier coverage of lethal injection in Ohio begins here.

More on the Forensic Science Commission

Dave Montgomery reports, "New forensic commission e-mail policy goes in 'wrong direction,' lawmaker says."  The article appeared in the Saturday edition of the Fort Worth Star-Telegram.

Members of a state commission examining the case of Cameron Todd Willingham have been asked to delete e-mail correspondence, a policy that came under attack Friday from a state senator who helped create the 4-year-old agency.

The Texas Forensic Science Commission has drawn national attention over an inquiry to determine whether a flawed arson investigation led to Willingham’s execution in 2004. John Bradley, who took over as chairman of the revamped commission Sept. 30, told state senators this month that the commission must adopt new rules before proceeding with the inquiry.

Bradley, district attorney for Williamson County, has also sought to control the release of information about commission activities. In an Oct. 30 e-mail obtained by the Star-Telegram, staff coordinator Leigh Tomlin asked commission members, "as a reminder of our e-mail retention policy, please delete all commission correspondence.

"If you feel there is something that needs to be saved, forward it to my office."

Sen. Juan "Chuy" Hinojosa, D-McAllen, who sponsored legislation that created the commission in 2005, expressed disapproval with the policy, saying "it’s going in the wrong direction."

"Surely deleting all e-mail correspondence is a nice way of saying, 'destroy all correspondence,’ " he said. "It’s the same thing."

Hinojosa also said that because commission members are appointed independently of the chairman, they should be able to "keep and save whatever e-mail they want to keep."

Bradley said the policy "simply seeks to make sure that all relevant information is saved at a single location."

"As you might imagine," Bradley wrote in an e-mail, "with digital information being sent, forwarded and replied to at the touch of button, an agency can find itself with duplicates of the information in numerous places.

"That makes it difficult for a public information officer to respond to requests for information and be confident about complying with all the legal requirements connected to that responsibility."

The Oct. 30 e-mail from Tomlin, which had the subject line "TFSC Willingham," also requested that commission members "forward any and all communications regarding Dr. Beyler or the Willingham matter to my office, including all emails and written correspondence."

Tomlin’s e-mail was written in response to a public information request with "a short deadline," she told members.

Craig Beyler is a Baltimore fire expert hired by the nine-member commission to examine the arson investigation that resulted in Willingham’s conviction for setting a house fire that killed his three daughters. Beyler’s report concluded that the investigation was based on outmoded techniques and did not sustain a finding of arson.

In another e-mail, Tomlin, who could not be reached Friday, told commission members: "Please also keep in mind that any communications regarding the Commission’s activities should be delivered through the Commission chair, Mr. Bradley."

Bradley said the policies are aimed at creating "some centralized process for dealing with media inquiries. One of the duties of any head of an agency is to make sure there are prompt, consistent replies to media inquiries."

And:

"If you have a policy to routinely destroy information, that doesn’t sound transparent to me," said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. "It just strikes me as being very unusual, especially in light of all the controversy surrounding that agency recently."

"Friedman speaks on run for governor," is from the Sunday Abilene Reporter-News.  It's written by Joe Motheral.

On Tuesday, Kinky Friedman appeared at the National Press Club’s 33rd annual Book Fair in Washington, D.C., in conjunction with his book, “Kinky’s Celebrity Pet Files.” After running for Texas governor in 2006 as an independent, Friedman will run again in 2010 as a Democrat.

Freelance writer Joe Motheral talked with Friedman about his plans as well as his thoughts about Abilene.

Question: What is your campaign strategy for Abilene and Taylor County?

Answer: I think they are going to be surprised up there. I think it’s where Democrats fear to tread, and I’m running in the Democratic primary. I’m a Democrat. I can’t afford to be a Republican. And I like the populist tradition of the historic Democratic Party. So I guess you would call me an old-school, independent-thinking yellow dog Democrat.

And:

Q: What message do you expect to bring to Texas as governor?

A: I think the message is that it’s the old message of the ’60s. It’s power to the people. I think our power, the people’s power has been hijacked by the politicians, both left and right, Republican and Democrat, and I think it needs to be returned to the people. I think there is some things that Prince Humperdink (Gov. Perry) is doing that are just called micromanaging. Just Mickey Mousing around with the boards of regents of Tech, firing Kay Bailey people from it. Messing around with A&M. Just about everybody is against him now. But he’s done some pretty serious things: when he fired the scientists from the commission, and not letting them get into the death of Todd Willingham in 2004. Most arson experts — the pre-eminent ones — are lining up behind the idea that Texas executed an innocent man in 2004. When I’m governor, there will be no death penalty. And I always tell the Christians that I apologize; I’m sorry you have to hear this from a Jew. But remember folks, that’s who you heard it from the first time.

Earlier coverage begins here.

Highlighting the Atkins Scholarship

In the preceding post, Adam Liptak noted scholarship by John Blume, Sheri Lynn Johnson, and Christopher Seeds,"An Empirical Look at Atkins vs. Virginia and its Application in Capital Cases."  Here's the abstract:

In Atkins vs. Virginia, the Supreme Court declared that evolving standards of decency and the Eighth Amendment prohibit the death penalty for individuals with intellectual disability (formerly, "mental retardation"). Both supporters and opponents of the categorical exemption, however, have criticized the Atkins opinion. The Atkins dissent, for example, urged that the decision would open the gates of litigation to a flood of frivolous claims. Another prominent criticism, heard from those more supportive of the Court's ruling, has been that the language the Court used communicating that states must "generally conform" to the clinical definitions of mental retardation is ambiguous enough to permit states to stray from the clinical definitions and, consequently, for death eligibility to vary depending upon the jurisdiction in which a defendant is charged. This Article presents preliminary data responsive to these issues, and reports three basic findings. First, Atkins has not opened floodgates of non-meritorious litigation. Second, the success rates for Atkins claims vary dramatically between states and state deviations from the clinical definitions appear to have a palpable impact. Third, as compared to their representation on death row, African-American defendants both file and win a disproportionately high number of Atkins claims.

More on Atkins v. Virginia in the mental retardation category index.

Continued Coverage of Juvenile Sentencing Reform

Adam Liptak's latest Sidebar column is, "Standards for Juvenile Punishment."  It's available at the New York Times website and is scheduled for tomorrow's print edition.  An extended excerpt:

The law is made up of rules and standards.

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said. “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”

The lawyers in the two cases the court heard — one involving a rape committed at 13, the other an armed burglary at 16 — had at least two answers to the chief justice’s proposal. One was that it is too soon to tell at sentencing whether unformed teenagers will later change for the better. The other was that states already take age into account but do so in very different ways.

And:

But there is a third possible retort, one that draws on the Supreme Court’s 2002 decision in Atkins v. Virginia barring the execution of the mentally retarded. That sounds like a rule, in that it made an entire class of people categorically ineligible for the death penalty. But it turns out to be a standard.

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper. The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year.

The Supreme Court in Atkins said mental retardation requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and that both conditions were present before age 18. The court said IQ scores under “approximately 70” typically indicate retardation.

How has this standard been applied in practice?

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234. That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.

North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test. In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded. But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim. In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here.

“If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said. Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

"Teenage 'lifers': Court should end no-parole terms for youths," is the title of a Newark Star-Leger.

Khalif Williams was 16 when he was charged with raping and robbing a 19-year-old East Orange woman at gunpoint while she waited at a Newark bus stop in 2007. He was charged as an adult and, in May, he was sentenced to 15 years in state prison.

Under state law, Williams, now 18, must serve about 12 years of his sentence before becoming eligible for parole. Had he committed this crime in Florida, however, the teenager could have been made to live out his life in prison without the possibility of a second chance.

"To sentence someone under 18 to life in prison without acknowledging the possibility of rehabilitation is wrong," says Cecilia Zalkind, executive director of Association for Children of New Jersey in Trenton.

And:

The Supreme Court banned the death penalty for juveniles in 2005, saying adolescents do not have the same maturity to determine right and wrong as adults and noting their potential for rehabilitation.

It was a wise decision. But given that reasoning, it is cruel and contradictory for the court to approve sentencing juveniles to life in prison with no chance of release.

Many states, including New Jersey, have made sentencing juvenile offenders a more rehabilitative process. The state has invested time and resources into reentry programs that focus more on helping teenagers turn their lives around than punishing them. And while these programs do not give a pass to serious juvenile offenders like Williams, they do have a greater emphasis on educational and social programs than punishment.

Serious crimes call for serious time, but locking up teenagers and throwing away the key will do nothing to help them change for the better. The court is expected to make a decision by spring. We hope it will rule in their favor.

Earlier coverage of Graham v. Florida and Sullivan v. Florida begins with this post.  More on Atkins v. Virginia in the mental retardation category index.

Crime and Punsihment: 1 Dies, 1 Lives

That the title of an Austin American-Statesman editorial.  It appeared in the Saturday edition.  LINK

Two criminals, both with guns fired at the scene. Two shooting victims. One dies, one does not.

Two trials, both for capital murder because of a state law that makes all participants in a crime that includes a slaying potentially just as guilty as the triggerman.

For whatever reason, one jury sentences the man who killed someone to life in prison. For whatever reason, another jury sentences the man who didn't kill anyone to death by injection.

The latter case winds its way through the courts and to the governor's desk. The courts uphold the conviction and sentence. But, en route to the governor's desk, a panel of gubernatorial appointees recommends commutation from death to life in prison for the man who did not kill anybody.

No, says the governor, the jury and the criminal justice system have spoken and must be respected.

For whatever reason, that's the system we have in Texas today. It again has produced inconsistent results that should give pause to even the most ardent of death penalty supporters.

Thursday evening, about 30 minutes before Robert Lee Thompson was scheduled to die, Gov. Rick Perry announced he was rejecting the Board of Pardons and Paroles recommendation to commute the sentence.

And:

But the Thompson and Turner cases offer a chilling reminder that the death sentence is meted out inconsistently in Texas. Evidence in the trials showed that both men were evil. But Thompson was executed for a slaying committed by an accomplice who prosecutors failed to show intended to commit murder.

Once again: Thompson — though not for lack of effort — did not kill anybody. Under state law, he was equally culpable for any slayings that took place at the crime scene. There was a slaying, but jurors returned a life sentence for the man who committed it because they were not convinced he intended to kill somebody.

Taken individually, it's possible to justify the outcome of the two cases. Perhaps Thompson deserved to die. Perhaps Butler deserved to spend life in prison.

But lined up side-by-side, it's hard to see the cases as anything other than another example of inconsistency in the Texas death penalty.

Earlier coverage begins with this post.  Related articles are in the law of parties category index.

The Pen Pal Business

"Death-Row Pen Pals," is the title of Deidre Depke's Daily Beast report.

A Texas inmate, executed Wednesday, sought companionship via the Internet before his death. Inside the death-row pen-pal business—and how felons bid for friends.

On Wednesday, Danielle Simpson, 30, became the 22nd person executed by the state of Texas this year. A few days earlier, in an interview with the English newspaper The Guardian, Simpson complained of the loneliness of his nine-year incarceration on death row, spent mostly in isolation. "Anything would be better than being here," he said.

But before giving up, Simpson, who was convicted of brutally murdering 84-year-old church organist Geraldine Davidson, had sought solace on the Internet. "I'm seeking to befriend someone of any age, race, etc...about becoming penfriends," Simpson wrote on Deathrowusa.com. "Please do feel more than honorable to contact me at your desire."

Deathrowusa, Writeaprisoner.com, and Prisonpenpals.com are a few of dozens of places on the Web on which convicts can connect with those on the outside. Yahoo alone has 68 groups built around contacting incarcerated people. The sites were originally launched by human-rights and religious groups who were modernizing their longtime efforts to help the imprisoned.

Today the practice has become a business. Inmates are charged (generally about $40 annually) to post a message and a photo, which they send by mail, since few have Internet access. The public, which receives an address at which to write to the inmates, can connect with prisoners for free. Most sites urge respondents to secure a P.O. box for their prisoner correspondence, and all require them to be at least 18 years old. The Web's largest is probably Writeaprisoner (slogan: We'll See You at Mail Call!), founded in 2000 by former Florida lifeguard Adam Lovell. Writeaprisoner, which also attracts advertisers such as phone-card and wire-transfer companies, draws 50,000 visitors a month, Lovell says.

Another Call for Juvenile Sentencing Reform

Toaday's Patriot-News of Harrisburg, Pennsylvania carries the editorial, "Chance for change: Life sentence removes hope for juvenile reform."

The question before the U.S. Supreme Court is: Do we believe juveniles sentenced to life in prison can reform?

Last week, the justices faced this question in a case involving two men serving life sentences for serious crimes they committed as teenagers.
Attorneys for the two Florida prisoners argue that not giving adolescents hope for parole violates the Eighth Amendment of the Constitution and its prohibition against cruel and unusual punishment.

As it is, the United States is the only nation that sentences teenagers who are convicted of a nonhomicide crime to life in prison with no chance of parole. The number of prisoners nationwide is 109 and 77 of them are incarcerated in Florida.

The two men at the center of the Supreme Court case are hardly poster children for leniency, and no one would argue they should get anything other than tough sentences for their crimes.

And:

The age of a person sentenced to prison for serious crimes must be considered.

There is no mold that every criminal convicted of armed robbery or rape fits into. Juveniles might deserve to spend many years in prison but in the end, they must be given a sense that society believes they can change.

The words of Justice Anthony Kennedy during the Roper vs. Simmons case decision hold true for this discussion as well: “From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

Earlier coverage of Graham v. Florida and Sullivan v. Florida begins with this post.

The Case of Cory Maye in Mississippi

"Why you should care about Cory Maye and Cameron Todd Willingham," is the title of Matt Zeitlin's column in North by Northwestern.

It’s hard to imagine a more depressing story than that of Cory Maye. In September, 2001, when he was just 21 years old, Maye fell asleep on the couch of his duplex in Prentiss, Mississippi. Hours later, armed men assaulted his home and burst into his bedroom where his 18 month old daughter was sleeping. Terrified and confused, Maye fired at the armed men approaching him in the dark.

Those armed men were police, and the man Maye shot and killed was Officer Ron Jones.

The police were executing a so-called “no knock warrant” where officers will go into a home without announcing themselves because of fear that a suspect will flush drugs. It turned out that Maye had a small amount of marijuana.

The police had gotten a warrant for Jamie Smith, who lived in the apartment across from Maye, while Maye and his girlfriend were only identified as occupants of an apartment adjacent to the suspected drug dealer’s. Although there was considerable reason to believe that Maye acted in self-defense, Maye was indicted and prosecuted for capital murder, convicted and sentenced to death by lethal injection.

What happened to Maye, however, was hardly atypical for a black man accused of shooting a white cop in Mississippi. According to Radley Balko, who was largely responsible for publicizing Maye’s story with an article in Reason, Maye’s trial was rife with misconduct by the prosecution and procedural shortcomings; due to incompetence on the part of his defense attorney, Maye was convicted. Maye, however, is not completely doomed.

Because of sustained uproar and the persistent work of a new legal team, Maye was able to get the death penalty thrown out because he did not have an adequate defense in the penalty stage of his trial. But life in prison without parole by no means seems just for a man whose house was probably illegally invaded by police and in all likelihood only fired in self defense.

Maye, following a ruling by the Mississippi State Court of Appeals, will now get a new trial, this time in his home county. The prosecutors are still going to try Maye, barely shamed by the shady story behind the warrant and the considerable evidence that Maye acted in self defense.  They won’t even take the face-saving route, suggested by Balko, of offering Maye a plea and letting him out after serving time. But Maye, at least, has a chance at justice.

Cameron Todd Willingham was not so lucky. Willingham was convicted of murdering his three daughters by burning down their house one night in December 1991. He was given the death penalty and executed in 2004. The linchpin of the case was forensic evidence that apparently showed that Willingham had burned down the house — this evidence has been vigorously disputed by many of the most highly regarded arson scientists.

And:

Both cases are examples of where journalists have been responsible for bringing these cases attention beyond the areas where they occurred. The New Yorker didn’t publish their article until only a few months ago, more than five years after Willingham’s execution in February of 2005. The Chicago Tribune in 2004 had published an article reporting the opinions of several legal and forensic experts that it was highly unlikely that the fire that killed Willingham’s three kids could have been intentionally set.

The best the heroic journalistic efforts of the Tribune and New Yorker can lead to is future faulty death sentences being exposed before they are carried out, or better yet, such prosecutions never being initiated in the first place. But who will be able to do this type of leg work? The New Yorker and Tribune, like just about every other print news title these days, are not profitable ventures. Even worse, such investigations of criminal sentences are some of the most expensive pieces for a magazine or newspaper.

A possible alternative to print newspapers and magazines are universities, which have both the resources and the inclination to perform this type of public-spirited work. One of the best examples of universities picking up where the press and the criminal justice system collide is, of course, the Medill Innocence Project, which is being famously hounded by Cook County prosecutors.

There may be no great way to promote and sustain the type of boring, unglamorous and expensive work that, more cases than not, ends up with little actual news produced. But it’s imperative that we find a way to do so. If we simply didn’t think that holding prosecutors and the criminal justice system as a whole accountable was worth anything, Cory Maye would be dead and Cameron Todd Willingham would be forgotten.

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."

Max Soffar

His has been a long and twisted tale, with a career on Texas death row.  Soffar has always maintained his innocence.  He was originally convicted in 1981of killing three people during a bowling alley robbery.  His court appointed lawyer was the notorious Joe Cannon, known as the sleeping lawyer of Harris County courts.

In 2004, the U.S. Court of Appeals for the Fifth Circuit overturned the conviction, ruling Cannon had been ineffective.  Soffar was retried in 2006, and again convicted and sentenced to death.  His defense attorney was barred from presenting some evidence by the trial judge.

On Wednesday, the Texas Court of Criminal Appeals upheld the conviction and death sentence in the direct appeal of the trial.  The per curiam ruling is here, in Adobe .pdf format.

The matter has not attracted Texas media attention, but today's Tennessean reports, "Paul Reid's role in crime not an issue in Texas," by Kate Howard.

The conviction of a Texas man for a triple murder was upheld Wednesday despite questions about whether Nashville death row inmate Paul Reid was involved.

Max Soffar was convicted in 1981 for killing three people and wounding a fourth during a robbery at a bowling alley in Houston and given the death penalty.

An associate of Reid, who has been sentenced to seven death sentences for murders in Tennessee, wrote to Soffar's attorney in 2000 saying that Reid had confessed to him that he shot four people in a Houston bowling alley on U.S. Highway 290 before the pair went on a crime spree.

Soffar's conviction was overturned by a federal court, but he was re-tried and convicted again in 2006.

No evidence was introduced at that trial about the allegation that Reid had confessed, and his attorneys challenged that decision to the Texas Court of Appeals along with several other issues, including mental health issues and whether the confession was coerced.

The appeals court rejected all of Soffar's claims and upheld his sentence.

Reid was scheduled to be executed in 2006, but a federal judge blocked his execution and ordered a competency hearing.

The ACLU issued a news release, "Texas Appeals Court Rejects Appeal Of Innocent Man On Death Row For 28 Years.  Death Sentence Upheld Despite Overwelming Evidence Pointing To Innocence," Wednesday afternoon, following the issuance of the CCA ruling.  The release is available via Common Dreams.

Max Soffar, whose mental illness left him particularly vulnerable to giving a false confession, stands convicted and sentenced to death for allegedly killing four victims during an armed robbery in a Houston bowling alley in 1980. Soffar appealed on the grounds that the trial court in 2006 prevented him from proving his innocence to the jury.   

"Once again, this case demonstrates that serious error riddles the criminal justice system," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "When the state seeks a person's death as punishment, we must demand a process that produces accurate and reliable results. When an innocent man sits on death row for 28 years having never received a fair trial, when juries are not allowed to hear the evidence, and when appeals courts do not intervene to fix these problems, no one can trust the process." 

And:

In today's opinion, the court ruled that the false confession given by Soffar should stand, and that his constitutional rights were not violated when his 2006 trial court judge refused to allow him to show that the only correct details in his false confession were not the result of his involvement in the crime but instead had been obtained through widely disseminated media reports. The prosecution claimed, in an argument to the jury, that these details — although broadcast throughout Texas — could only have been known by the person responsible for the crime. Making an argument that not even the prosecutor made on appeal, the Texas Court of Criminal Appeals said in today's decision that even if the trial court judge erred by refusing to allow Soffar to utilize the media reports as part of his defense, the error was "harmless." 

False confessions are among the leading causes of wrongful convictions, and evidence shows that people like Soffar who are impulsive, have low intelligence, low self esteem and are prone to fantasy and disassociation are the most likely candidates for false confessions.
 
The appeals court today also rejected Soffar's argument that the trial judge erred by refusing to admit evidence that another man confessed to committing the murders, and that this man committed a series of highly similar robbery-murders in Tennessee. The man, Paul Reid, formerly of Houston, now awaits execution on Tennessee's death row. A photograph of Reid, taken in Houston nine days after the crime, strongly resembles the composite sketch the police prepared based on the description of the sole witness to the crime. 

Soffar's false confession also contradicts the account of the sole surviving witness and other reliable evidence.

Soffar will continue to push his innocence in another phase of post-conviction review.  In Texas, a death penalty case automatically receives a direct appeal to the Texas Court of Criminal Appeals.  The direct appeal is limited to issues raised through the trial transcript; was an objection properly ruled on, was something improper said, and other issues found in the words of the trial.  The other phase of post-conviction review inolves the filing of a habeas corpus petition, in which other issues are considered.

One of Soffar's steadfast supporters in Texas entertainer and sometimes politician Kinky Friedman.  Friedman has announced his intention to run for governor in the March 2010 Democratic primary.  He wrote, "Max Soffar: A Jew on death row," which appeared in the February 2, 2005 issue of the Jerusalem Post.  Here's an excerpt:

I've seen Cool Hand Luke and The Green Mile, but I'm not a prison reform activist. I'd never interviewed anyone on death row until the middle of January, when I picked up a telephone and looked through the clear plastic divider at the haunting reflection of my own humanity in the eyes of Max Soffar.

Max doesn't have a lot of time and neither do I, so I'll try to keep it brief and to the point.

"I'm not a murderer," he told me. "I want people to know that I'm not a murderer. That means more to me than anything. It means more to me than freedom."

On February 2, Max is scheduled to be re-arraigned in Houston before District Judge Mary Lou Keel for the murders of three youths at a Houston bowling alley in 1980. Although Max has been granted a new trial, his release from prison is far from a certainty. His defense team is concerned about critical evidence destroyed by the District Attorney's office and the difficulty of finding witnesses after 23 years, and his lawyers estimate the costs of defending him at a new trial at $250,000 or more.

I'm sure we'll be hearing more about Max Soffar in the future.

Federal Court Seeks Info in Ohio Injection Case

That's the title of an AP report this morning via the Dayton Daily News.  LINK

A federal appeals court is pushing a condemned killer to say why his lawsuit opposing lethal injection in Ohio shouldn't be dismissed.

The 6th U.S. Circuit Court of Appeals in Cincinnati has given attorneys for Kenneth Biros until Friday afternoon to present arguments.

A federal judge has temporarily delayed Biros' Dec. 8 execution but left open the possibility the execution could still happen if the state revised its injection rules.

Biros has argued that Ohio's three-drug injection process could cause severe pain in violation of the Constitution.

The state last week replaced that system with a single dose of anesthetic, and says the new approach renders Biros' lawsuit moot.

Earlier coverage from Ohio begins with this post.  It also contains information on Biros near the end of the post.

Texas Execution

Following Rick Perry's rejection of clemency for Robert Thompson, recommended by the Board of Pardons and Paroles, Texas conducted its 23nd execution of 2009, last night in Huntsville.  It was the 446th Texas 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 48 executions in the nation this year; 1,184 since 1977.

According to TDCJ, one more execution is scheduled in Texas during 2009, on December 3rd.  Five execution dates have already been set in Texas for  2010.

As noted in the preceding post, Governor Perry's statement is here.

"Perry rejects clemency in death penalty case," is the title of Mike Ward's report in today's Austin American-Statesman.

Thompson did not fire at the slaying victim, though he participated in the robbery and shot another clerk four times, according to official reports. The second clerk lived.

Perry's decision came after the state Board of Pardons and Paroles had voted 5-2 on Wednesday to recommend that Perry commute Thompson's death sentence to life in prison, a rare move for the panel.

It was the second time in two years that the parole board had made such a recommendation in a case involving Texas' controversial "law of parties," which allows accomplices in capital crimes to face the death penalty even if they did not actually kill. Perry commuted the other sentence.

More than a half dozen other Texas inmates have been executed under the law of parties in recent years, despite last-minute requests for clemency.

Thompson was sentenced to death for being an accomplice when Mohammed, 29, was shot. Thompson's partner in crime and the triggerman, Sammy Butler, was sentenced to life in prison.

Allan Turner writes, "Killer executed after Perry rejects panel's advice," for the Houston Chronicle.

Robert Lee Thompson, 34, didn't fire the shot that killed clerk Mansoor Rahim, also identified as Mansoor Rahim Mohammed, during a robbery of the Seven Evenings convenience store on Braeswood Boulevard. But a Harris County jury sentenced him to death under the state's “law of parties,” which holds accomplices as responsible for a murder as the person who does the killing. The triggerman, Sammy Butler, was sentenced to life in prison after prosecutors failed to prove he intended to kill Rahim.

In the punishment phase of Thompson's trial, prosecutors contended the men had been involved in at least eight other robberies, some of which resulted in the deaths of store employees.

Thompson's case marked the third time the Texas Board of Pardons and Paroles has recommended that a death sentence be commuted to life in prison during Perry's years as governor. He has voluntarily commuted only one death sentence during his tenure as governor.

The AP report by Michael Graczyk is"Man executed after Perry rejects parole board's clemency, via the Fort Worth Star-Telegram.

The parole board’s 5-2 vote came in response to a petition from Patrick McCann, Thompson’s attorney, who argued that Thompson’s case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties.

Foster was only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. The first recommendation was for Kelsey Patterson, a mentally ill inmate, in 2004

Perry rejected the board’s recommendation, and Patterson was executed. But he commuted Foster’s sentence.

Perry’s explanation for commuting Foster’s sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson’s case, he and Butler were tried separately.

At least a half-dozen other Texas inmates have been executed under the law of parties.

Since 1982, the U.S. Supreme Court has barred the death penalty for co-conspirators who don’t kill. The justices made an exception in 1987, however, ruling that the Eighth Amendment didn’t prohibit the execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference.

At the Dallas Morning News Death Penalty blog, Michael Landauer posts, "A simple reform on law of parties."

If lawmakers are not willing to change the so-called law of parties in Texas, where an accomplice can be executed for a capital crime, then I have one simple proposal. Why not require by law that the triggerman be tried first?

In the case of Robert Lee Thompson, executed last night despite a rare recommendation of clemency from the parole board, it would have made the trial a bit fairer. As it is, Thompson was tried first. In his punishment phase, others testified about other crimes he had committed. Prosecutors argued that he had wanted to deliver a fatal shot to the clerk he inujured, but his gun was out of bullets.

Later, int he trial of the gunman who did fire a fatal bullet, prosecutors failed to secure a death penalty because jurors were not sure murder was the motive. Robbery seemed to be.

There's a lot of assuming going on in cases like this. But one jury found as a matter of fact that the accomplice knew that murder was going to be the result of the crime. Another jury didn't see it that way. Duel trials aren't fair, either.

Perry Rejects Commutation - UPDATED

Governor Rick Perry has rejected a recommendation to commute the death sentence of Robert Thompson.  Thompson is scheduled to be executed shortly after 6:00 pm, tonight.  The Texas Board of Pardons and Paroles voted yesterday, 5-2, to recommend a commutation to the governor.

Governor Perry's statement is here.

“After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime. There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts.”

A Texas governor may accept the Board's recommendation and commute a death sentence, however, he/she is not obligated to do so. 

In 2004, the Board recommended that Perry commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation, and Patterson was executed.  Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster in 2007.

UPDATE - Michael Graczyk's inital AP report is here.

Gov. Rick Perry refused to spared a man facing execution Thursday evening for his role in a fatal robbery, rejecting a parole board recommendation that the death sentence of 34-year-old Robert Lee Thompson be commuted to life in prison.

Perry's decision came about 30 minutes before Thompson was set to be taken to the Texas death chamber for lethal injection. On Wednesday, the Texas Board of Pardons and Paroles made the rare recommendation for Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk 13 years ago.

Earlier coverage begins with this post.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Keith Hampton

Jordan Smith writes, "Hampton Runs for Republican-Dominated Court," in the current issue of the Austin Chronicle.

Entering the political fray for the first time as a candidate, Austin criminal defense attorney Keith Hampton on Nov. 4 filed paperwork to run as a Democrat for the Court of Criminal Appeals seat currently held by Judge Michael Keasler.

Hampton (www.hamptonforjudge.com) is well-known in the Travis County courthouse and also in the Texas Capitol, where he has worked as legislative director for the Texas Criminal Defense Lawyers Association. He's handled many notable cases in Austin (including the successful appeal of Lacresha Murray, who was convicted of killing a toddler when she was just 11, based largely on a confession obtained illegally by police). Hampton notes that if elected, he would be the only judge on the court to have handled death penalty cases during every stage of litigation – not an insignificant issue, since the CCA is the highest criminal court in Texas and the only appellate court that considers capital punishment appeals.

The CCA has been an all-Republican court since 1998 (when Keasler was first elected, replacing the court's last Democrat, now Travis County Judge Charlie Baird). The court has been under increasing scrutiny for controversial decisions, including the 2007 decision made by Presiding Judge Sharon Keller, which effectively prevented condemned inmate Michael Rich­ard from filing a last-minute appeal by announcing that the clerk's office closed at 5pm.

What the Law Commands

That's the title of a post by Linda Greenhouse at the New York Times Opinionator blog.  LINK  As with anything the retired Times' Supreme Court correspondent writes, it's a must-read.  I'm going to focus on one section of her post.

The proof of how alike the two justices really are, of course, will lie not in their rhetoric, but in their votes. The Supreme Court term is off to an unusually slow start, with little evidence of what is happening behind the scenes. But little is not none. Last week, the court was faced with deciding whether to grant a stay of execution to John Allen Muhammad, better known as the sniper who killed 10 people in the Washington area during a few terror-filled weeks in the fall of 2002.

The justices were scheduled to consider Mr. Muhammad’s final appeal at their regular conference on Nov, 24. But Virginia nonetheless set the execution date for Nov. 10, an unseemly practice of rushing the clock that death-penalty states have engaged in for years and that has been a long-running source of tension within the court.

The justices were unanimous in turning down the stay, finding the request without legal merit. But Justice John Paul Stevens, who has objected to similar artificially created deadlines in the past, issued a statement complaining of “the perversity of executing inmates before their appeals process has been fully concluded.” The court should stay an execution any time the justices have not had a chance to consider whether to grant review of the inmate’s initial habeas corpus petition, Justice Stevens said, adding that it was a matter of avoiding “irreversible error” and “preserving basic fairness” to give death-row inmates “the same procedural safeguards that ordinary inmates receive.”

Two other justices signed Justice Stevens’s statement: Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Ginsburg has signed similar statements in the past, so her action was essentially foreordained. But Justice Sotomayor was writing on a clean slate, in a case in which she had no ability to influence the outcome. Justice Stephen G. Breyer, often an ally of Justices Stevens and Ginsburg, did not sign. It is not certain whether Justice Sotomayor’s predecessor, Justice David H. Souter, would have signed either.

Clearly, Justice Sotomayor found the rushed execution date troubling. But that does not fully explain her decision to stand with Justices Stevens and Ginsburg in calling publicly for a change in the court’s procedure. Joining in the implicit criticism of a majority of her new colleagues could not have been a casual decision. Something deeper must have been at work. Was she sending a signal? If so, of what?

Perhaps this case gave the new justice a chance to acknowledge, obliquely but publicly, that she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave. As a great judge, Benjamin N. Cardozo, expressed it 90 years ago: “We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.”

Earlier coverage, with an additional link to Justice Stevens' statement, is here.

Still Waiting on Word From Governor Perry

Robert Thompson's execution date is just over an hour away.  Thompson, his attorneys, and reporters are waiting on Governor Rick Perry to accept or reject the Board of Pardons and Paroles that Thompson's death sentence be commuted to life in prison.

Earlier today, AP writer Michael Graczyk filed, "Texas governor to decide condemned killer's fate."

The fate of a man facing execution Thursday evening for his role in a fatal robbery was in the hands of Gov. Rick Perry after the state parole board recommended the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for Robert Lee Thompson, 34, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry was not required to follow the recommendation of the board, whose members he appoints.

"The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday.

Thompson's lawyer, Patrick McCann, also had an appeal before the U.S. Supreme Court to stop the lethal injection, which would be the 23rd this year in Texas and second in as many nights.

The parole board's 5-2 vote came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties. Under that law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder.

Perry commuted Foster's sentence to life two years ago. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed.

Allan Turner has updated, "Parole board urges Perry to spare Houston killer," at the Houston Chronicle website.

Texas' Board of Pardons and Paroles on Wednesday recommended that Gov. Rick Perry spare the life of Houston killer Robert Lee Thompson, who is scheduled to be executed tonight in Huntsville.

A Perry spokeswoman did not indicate when the governor, who has voluntarily commuted only one death sentence in his tenure as chief executive, might rule in the case. As of this afternoon, the execution still was scheduled.

Thompson, 34, was sentenced to die in a law-of-parties case stemming from the December 1996 slaying of clerk Mansoor Rahim during a robbery at a Braeswood Boulevard convenience store. Thompson's lawyer, Pat McCann, argued that the fatal shot was fired by his client's accomplice, Sammy Butler. Under Texas' law of parties, both robbers were eligible for the death penalty. But Butler, the gunman, was sentenced to life in prison.

The pardon board's action marked the second time in two days that Houston killers received hope of escaping execution.

On Tuesday, U.S. District Judge Lee Rosenthal granted a 90-day stay to Gerald Eldridge, 45, who was sentenced to die for the 1993 murder of his former girlfriend, Cynthia Bogany, and her 9-year-old daughter, Chirrisa. Eldridge's lawyer argued that the killer might be seriously mentally ill and incompetent to be executed. Under Texas law, one must understand that he will be executed and why in order to legally be put to death.

After Wednesday's initial victory before the pardons board, McCann acknowledged that he was “too scared to be optimistic.” Still, he noted the only time Perry voluntarily commuted a death sentence also involved a law of parties case.

Earlier coverage is here.

Thursday

I'll be traveling on Thursday morning.  Posts will resume later today.

Board of Pardons & Paroles Recommends Commutation in Law of Parties Case

Allan Turner writes, "Board: Commute death sentence in Houston case," for the Houston Chronicle.

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Although Perry has commuted death sentences in accordance with U.S. Supreme Court decisions, only once, in the case of San Antonio killer Kenneth Foster, has the governor commuted of his own accord.

Foster was convicted of capital murder in a law of parties case although he was not the triggerman. His death sentence was commuted in August 2007.

McCann said executing Thompson would neither deter crime or provide retribution.

Governor Perry may accept the Board's recommendation and commute Thompson's death sentence, however, he is not obligated to do so.  He will announce a decision Thursday.

In 2004, the Board recommended that he commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation and Patterson was executed.  As noted by Allan Turner, Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Texas Execution

Texas conducted its 22nd execution of 2009, tonight in Huntsville.  It was the 445th Texas 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.  

Michael Graczyk writes the AP report, "Man executed for abduction-slaying of Texas woman," via the San Antonio Express-News.

A convicted killer who volunteered for execution but in recent weeks changed his mind was put to death Wednesday evening for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river.

Danielle Simpson, 30, was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

"I want to tell my family I love y'all," Simpson, 30, said in brief comments while strapped to the death chamber gurney. "I'm going to miss y'all.

"I'm ready, ready."

He shook his head and raised it as the lethal drugs were administered, gasped a couple of times and then his body trembled for several seconds before he slipped into unconsciousness. He was pronounced dead at 6:32 p.m. CST, nine minutes later.

Simpson was the 22nd Texas prisoner to be executed this year.

A federal court earlier this year had said Simpson was competent to decide to drop his appeals. Then Simpson reversed himself and allowed lawyers to try to save him from lethal injection.

To date, there have been 47 executions in the nation this year; 1,183 since 1977.

According to TDCJ, two additional executions are scheduled in Texas during 2009. 

Robert Thompson is scheduled to be executed Thursday evening.  The Board of Pardons and Paroles, however, has recommended that his death sentence be commuted to life in prison. Thompson was not the triggerman; he was sentenced to death under Texas law of parties, though the actual killer received a lesser sentence.  More on this developing story in the next post.

Five execution dates have already been set in Texas for  2010.

The Obama Judiciary

"Controversial 7th Circuit Nominee Clears Senate Hurdle," is the title of David Ingram's National Law Journal report.

The U.S. Senate voted Tuesday to end debate on President Barack Obama's most controversial circuit court nominee, as the Republican caucus fell short of maintaining a filibuster.

A final vote to confirm Judge David Hamilton to the 7th U.S. Circuit Court of Appeals is likely in the next day or two. He has been on the U.S. District Court for the Southern District of Indiana since 1994.

The vote of 70-29 shows how polarized the Senate can still be on nominees for the federal bench, despite Obama's stated desire to call a truce on the highly politicized process. Democrats delayed many of President George W. Bush's nominees, some of them for years, just as Republicans did with many of President Bill Clinton's picks.

Democrats needed 60 votes to move Hamilton's nomination forward. Among the Republicans who crossed the aisle to cut off debate, or invoke cloture, were Sens. Saxby Chambliss (Ga.), Susan Collins (Maine), John Cornyn (Texas), Orrin Hatch (Utah) and Richard Lugar (Indiana).

Hamilton was Obama's first judicial nominee, announced March 17, and Democrats portrayed him as a moderate. He had worked in corporate litigation and as chief counsel to then-Gov. Evan Bayh of Indiana before Clinton nominated Hamilton to the district court.

But Republicans criticized his pro bono work for the Indiana chapter of the American Civil Liberties Union in the 1980s and his rulings on abortion, criminal sentencing and prayer for the Indiana Legislature. In 2005, for instance, Hamilton issued an injunction directing the Indiana House speaker to take steps to ensure prayers were nonsectarian.

Yesterday, the New York Times ran the editorial, "Obama's Judicial Nominees."

The Obama administration is off to a slow start on judicial nominations, but the Senate, which has delayed in confirming the choices President Obama has made, also bears a good part of the blame. The administration and the Senate leadership should pick up the pace of nominations and confirmations in order to restore some balance to a federal judiciary that was pushed sharply to the right by former President George W. Bush.

Appointing federal judges, who have enormous power and serve for life, is one of the most important presidential responsibilities. President Bush, who was intent on leaving an ideological imprint on the judiciary, made his nominations quickly and pushed hard to have them confirmed. By the end of his first year, according to a report by the liberal group Alliance for Justice, he had nominated 65 federal judges and 28 were confirmed.

By that measure — and those of the Clinton and Reagan years — Mr. Obama has moved slowly. As of Nov. 4, he had nominated just 26 appellate and district court judges, and only four of them had been confirmed. Even considering that selecting Sonia Sotomayor for the Supreme Court and getting her confirmed took time, the administration’s pace has been disappointing.

On the confirmation side, the fault lies with the Senate. Obama nominees who have been reported out of the Judiciary Committee have waited months for a vote from the full Senate, far longer than is necessary.

Senate Republicans have been doing their best to drag things out. In March, every Republican senator signed an outrageous letter to the White House warning that they would filibuster any nominee from their home states if they did not approve the choice in advance. That was a dizzying reversal. In the Bush years, Senate Republicans professed to be so upset about Democrats’ filibustering that their majority leader threatened the “nuclear option,” which would have eliminated the use of filibusters for all judicial nominations.

Senate Democrats used the filibuster very selectively against Bush nominees who were true extremists.

And:

There is a good chance the Senate will vote on Judge Hamilton this week. Republicans who oppose him may be trying to send a message that even moderate nominees will have a rough time so the White House should steer clear of more controversial choices.

The Obama administration should not be deterred. After eight years of flawed Bush nominations, it should work hard to fill every judicial vacancy with the best possible judges — and it should act as quickly as possible.

The Alliance for Justice has a number of resources including a web page with federal courts of appeal nominations and the Justice Watch blog, linked in the left-column webroll.  AFJ's report, "Pace of President Obama's Judicial Nominations," is available in Adobe .pdf format.

Related posts are in the judiciary index.

Reflections on the Execution of John Muhammad

Syndicated columnist Leonard Pitts Jr. writes, "Struggling through the gray areas of life," via the St. Augustine Record.

They killed a killer last week.

I kept waiting to feel something when news came that John Allen Muhammad had been executed in Virginia. As a staunch opponent of capital punishment, I wanted some nugget of remorse at the knowledge that the government had taken his life.

But Muhammad's 2002 sniper attacks hit close to home. He terrorized millions of people in the greater Washington area, where I live, made us fear to gas up our cars, walk in parking lots, wait on buses, made my grandson scared to go trick-or-treating, even wounded a friend of my youngest son.

So I could not manage remorse. Indeed, what I felt was an unsettling, appalling satisfaction that Muhammad is no longer in the world. I still remember the last time an execution caused my emotions to so thoroughly misalign with my convictions: it was in 2001, when Timothy McVeigh was put to death.

When I argue against the death penalty, I tend to lean on a few salient points: it is far costlier than life imprisonment; it is biased by class, race and gender; it is irreversible in the event of error. I use those arguments because there is ample statistical evidence to back them up, and because they are irrefutable.

But I have one other problem with the death penalty: it's wrong. It debases us. The power of life and death is too awesome to be left in human hands. And here, I know, the abortion opponent wonders how I can square that with support for abortion rights. The answer is simple: I can't.

At the Miami Herald, Pitts' home paper, the column is titled, "Reflections on the execution of D.C. sniper."

John Crisp's column, "Abolish it, or make us all watch," distributed by ScrippsNews, is from Pennsylvania's New Bethlehem Leader-Vindicator.

I'm no big fan of capital punishment, but it's hard to argue that John Allen Muhammad didn't deserve to die last week. Much more than most murders, his were particularly meaningless. And they were thoroughly public: for three weeks in 2002 some citizens in the Washington metropolitan area were paralyzed with fear, and nearly all were seriously uneasy during any public activity that could expose them to a sniper's bullet. Some just stayed home.

Family members of Muhammad's victims were permitted to witness his execution. One wonders why, for crimes this public, the tradition of the public execution isn't reinstated.

I was thinking about this as CNN counted down the hours and minutes until Muhammad's death by lethal injection. A number of news networks covered every minute detail leading up to the execution, but all video coverage was barred from the death chamber itself.

Somehow this put me in mind of the ancient tradition of the Spanish bullfight, which may seem like an odd cognitive leap, but go along with me for a moment: The bullfight is one of the few modern occasions where death becomes a spectacle that crowds congregate to witness, recalling public executions of the past.

Philosophically, the bullfight is practically indefensible, though many have tried to make a case for it.

Sometimes, its apologists argue, it rises to the level of a beautiful and graceful art. Perhaps. But most of the time bullfighting is bloody butchery.

And:

Ironically, Spaniards and Mexicans continue to kill bulls in public, but they stopped executing people long ago. We consume animals at a world-record pace but do the dirty work of a meat-eating culture away from the public eye. And as the last developed Western nation to retain the death penalty, we do our civic killing in private, as well.

Perhaps it's a healthier society -- and certainly a more honest one -- that owns up to the killing that it does. Accordingly here are two suggestions:

First, like the rest of the advanced world, let's abolish the death penalty. It's never served as a deterrent to violent crime, we've never figured out how to apply it equitably irrespective of race, class, or gender, and it's clear that from time to time we execute innocent people. Yes, we absolutely do.

However, given the public consensus in its favor, the death penalty isn't likely to be abolished in our country any time soon.

So, the second suggestion: Let's bring executions back out in public, like other death-penalty states such as Iran and North Korea.

Muhammad's execution was noted in this post.

Death Penalty Expansion in Virginia?

"Death Penalty Legislation Could Change," is the title of Philip Townsend's report for WHSV-TV of Harrisonburg, Virginia.

Local legislators say there could be changes to Virginia's death penalty legislation when Bob McDonnell becomes governor.

Since 2004, both chambers in the Virginia General Assembly have passed a reform to something that's known as Triggerman Rule. However, each time the reform was sent to the governor's desk, it was vetoed.

State Sen. Mark Obenshain says, "I fully understand that fair-minded people might disagree about the death penalty. However, this is an important reform."

Obenshain has been one of the key sponsors of the bill that would make co-conspirators of murder eligible for the death penalty, regardless of whether or not they physically committed the crime.

And:

However, when Bob McDonnell takes over as governor, the Triggerman loophole may be removed.

It is not good news for opponents of the death penalty, like Harrisonburg resident Chris Edwards.

Edwards says, "There is no evidence that there is less serious crime in the states that don't have capital punishment."

Edwards says the change could open up the gates for even more executions in Virginia.

The report also notes:

Currently, there are three exceptions to the Triggerman Rule in Virginia.

In order for a person, co-conspirator, to be eligible for capital murder charges and thus the death penalty, the crime would have to involve a murder-for-hire, an enterprise group such as a gang or mob, or be related to terrorism.

Earlier coverage of the issue in Virginia begins with this post.  No other state currently seeks the death penalty for accomplices as aggressively as Texas does under its law of parties.  Related posts are in the law of parties / felony murder rule index.

Speaking of Justice Kennedy ...

As noted in the preceding post, Justice Kennedy was the author of Roper v. Simmons.  He also wrote the opinion in Kennedy v. Louisiana.   David Lat at Above the Law reports on the Federalist Society's annual dinner this past week in Washington, DC, at this post.

As you may have noticed, from our two posts late on Monday night and one from Tuesday morning, we're engaging in some after-the-fact blogging of last week's Federalist Society National Lawyers Convention.

As in past years, the social highlight of the conference was the Thursday night banquet (black tie optional; and many availed themselves of the option, 'cause that's how conservatives roll). The speaker at the dinner was none other than Justice Samuel A. Alito, who delivered an insightful and hilarious speech that was a delight to listen to. Just as one might say of, say, a newscast by Jon Stewart, much of the entertainment value was in the delivery -- Justice Alito is so dry and deadpan, and yet his remarks make you bust out laughing.

Interestingly enough, we haven't come across many news accounts of Justice Alito's speech. There was also no video recording allowed at the address. So we feel we can add some value with this write-up, despite its belated nature.

And:

Justice Alito then made surprisingly candid remarks about Kennedy v. Louisiana (2008), in which the Supreme Court, by a 5-4 vote, held that punishing the crime of child rape with the death penalty violates the Eighth Amendment. He pointed out that in 2006, Congress revised revised the Uniform Code of Military Justice to add child rape to the list of offenses punishable in the military by death (a fact that didn't come to light until after the opinions were issued; it was pointed out by blogger Dwight Sullivan, whose blogging then got picked up by Linda Greenhouse of the New York Times).

In light of this recent federal enactment, multiple state laws to the same effect, and even public opinion polls suggesting support for the death penalty in such cases, was the Court's decision in Kennedy v. Louisiana proper? In Justice Alito's opinion, it was not. Rather, this was an unfortunate case of Justice Kennedy the Court substituting its own judgment for that of the people.

Another Call for Juvenile Sentencing Reform

Today's Silicon Valley Mercury News carries the editorial, "For kids, life in prison without parole is cruel and unusual punishment."

Five San Jose teenagers sit in jail today, facing the possibility that they will spend the rest of their lives behind bars. Two were charged as adults Tuesday in the stabbing death of a 15-year-old boy. The other three will be charged as adults in connection with the vicious Halloween attack on two boys.

The cases come just as the U.S. Supreme Court is considering a lawsuit brought by two Florida men convicted of violent crimes in their teens. Both received life in prison without the possibility of parole, which their lawyers argue constitutes cruel and unusual punishment.

These kinds of violent crimes are horrific and shocking. But denying teenagers the opportunity for parole is not consistent with our understanding of the nature of children or with our sense of decency. The practice should be declared unconstitutional.

Juveniles such as those being charged in San Jose deserve very harsh punishment if they are convicted. Many, however, are capable of rehabilitation, and in a civilized society they should have the chance to work hard to demonstrate that they deserve another chance.

With rules about driving, voting and drinking, Americans acknowledge that kids are different. Their character is still developing, and they are more susceptible to the influence of their peers and their environment, which is often filled with neglect, violence and poverty.

As Bryan Stevenson of the Equal Justice Initiative put it in his brief to the court: "Like a car with a powerful accelerator but weak brakes, a young teenager's brain is fully developed in the part responsible for emotional arousal and sensitivity to peer pressure (the gas pedal), but the parts in the frontal lobes that control impulses and allow long-term thinking, planning, and resistance to peer pressure (the brake) are still developing."

The court itself agreed with similar reasoning in 2005, when it declared the death penalty for juveniles unconstitutional.

In that case, Roper v. Simmons, Justice Anthony Kennedy wrote for the majority, "It would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.

"Juveniles have a greater claim than adults to be forgiven for failing to escape negative influences."

Earlier coverge of Graham v. Florida and Sullivan v. Florida begins with this post.

Ohio Finds Itself Leading the Way to a New Execution Method

That's the title of analysis by Ian Urbina in today's New York Times.  LINK  An extended excerpt:

Prison officials in Ohio never planned to become pioneers in death penalty protocol. But the failed effort on Sept. 15 to execute Romell Broom, a convicted killer, forced the state to rethink how people are put to death and led Ohio officials to be the first in the nation to adopt a new approach.

That approach entails switching to a single drug, rather than using the three-drug cocktail that critics have long argued is cruel and unconstitutional.

And while Ohio’s policy change could influence other states, Ohio officials said their decision had less to do with the national debate than a number of more local considerations.

“We figure we’re going to get sued whatever we do with the death penalty,” said Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction. “But with this new approach, we have a plan that works and we have the backup plan we really needed.”

Under the new procedure, prison officials will inject a large dose of an anesthetic to kill the inmate. If that fails or if prison officials find that the inmate’s veins are not suitable for an intravenous approach, as was the case with Mr. Broom, they will instead inject two chemicals — midazolam and hydromorphone — directly into the inmate’s muscles.

Some death penalty experts have questioned why Ohio did not just abandon the intravenous approach altogether in favor of the intramuscular method.

The intravenous method was the most familiar and effective and the least susceptible method to litigation, Ohio officials said. The one-drug method also made sense politically because death penalty opponents were more likely to accept it.

“They saw that there was an approach that was widely agreeable to the defense lawyers in many different death penalty cases,” said Kent Markus, chief legal counsel to Gov. Ted Strickland, a Democrat. “Why not opt for something that is quicker, familiar and less open to legal challenge?”

And yet, by not making a total break from the former protocol of first trying to inject drugs into a vein, state officials said, they avoided giving the impression that they believed the former approach was cruel or unconstitutional.

Adele Shank, one of Mr. Broom’s lawyers, said this point seemed clear during a conference call that prison officials initiated last Friday to explain the new protocol to lawyers for several death row inmates.

“What they wanted to emphasize,” Ms. Shank said, “was that they don’t believe that the former policy was inhumane or inherently unconstitutional, and they didn’t want to convey any misimpression on that by making some drastic shift.”

Certain distinctions in Ohio’s laws also made the state a likely candidate for change.

Whereas many states have laws protecting the anonymity of executioners, Ohio does not. This has made it nearly impossible for the state to recruit doctors to assist in executions.

“The lack of medical professionals being involved has left the state with its hands really tied,” Mr. Collins said, adding that this was why the state needed a backup plan for situations like Mr. Broom’s, where executioners could not find a usable vein.

Unlike many other states, Ohio has a law that also explicitly guarantees condemned inmates a quick and painless death, Mr. Collins said. This law posed problems for the three-drug approach.

For example, in June 2008, Judge James M. Burge of the Lorain County Court of Common Pleas in Elyria ruled that the state must stop using the three-drug cocktail for executions because they might produce excruciating pain. The judge then ordered state officials to instead start using a single large dose of barbiturate, common in animal euthanasia.

The decision was an exception to the United States Supreme Court decision in April 2008 in Baze v. Rees, which upheld Kentucky’s lethal injection protocol, similar to the one used in Ohio.

But Judge Burge wrote that while the United States Constitution did not require the avoidance of all risk of pain, Ohio law, by contrast, “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful.”

And:

Not everyone is convinced, however, that the state’s new procedure will actually prove as effective and safe from legal challenge as state officials hope.

Dr. Jonathan I. Groner, a professor of clinical surgery at the Ohio State University College of Medicine, in Columbus, said that using the intramuscular approach could pose particular problems. He said there was no telling how slowly the inmate might die if the drugs were administered muscularly, since this approach had not been used before. Also, he said, it may be difficult to deliver the drugs into the muscle if the prisoner is morbidly obese.

Earlier coverage from Ohio begins with this post.  More on Judge Burge's 2008 ruling is here and here.  Related posts are in the lethal injection index.

Also from Ohio, "Parole board won't spare Ohio mutilation killer, written by Andrew Welsh-Huggins for AP, via Google News.

The state parole board on Tuesday rejected a plea of mercy from a man who killed a woman and scattered her body parts, clearing the way for him to become the first person in the nation executed with the injection of a single drug.

Kenneth Biros' execution, scheduled for next month, is temporarily on hold, but it could still proceed if a federal judge allows.

The parole board, which had twice previously rejected clemency for Biros, said it was sticking with its earlier recommendations against mercy.

And:

U.S. District Court Judge Gregory Frost last month delayed Biros' Dec. 8 execution but left open the possibility it could happen if the state revised its execution procedures.

Texas Execution

Texas is scheduled to conduct its 22nd execution of 2009, tonight in Huntsville.  It would be the 445th Texas 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.  

Michael Graczyk writes the AP report, "Mental issues raised as Texas inmate set to die," via the Dallas Morning News.

A condemned prisoner who volunteered for execution and in recent weeks changed his mind is hoping a court spares him from a trip to the Texas death chamber.

Thirty-year-old Danielle Simpson is set to die Wednesday evening in Huntsville for the abduction-slaying almost 10 years ago of an 84-year-old East Texas woman who was bound with duct tape and hauled around for hours in the trunk of her car. Then Geraldine Davidson was beaten, weighted down with a cinder block and thrown into a river outside Palestine.

Simpson this year won approval from a federal court that he was competent to decide to drop his appeals. Then he reversed himself and lawyers now are in state and federal courts trying to save him from lethal injection.

Last night's scheduled execution of Gerald Eldridge was stayed over issues of his competency to be executed, as noted here.

More on the Supreme Court's 1986 ruling, Ford v. Wainwright, concerning competency to be executed is via Oyez.  The Court revisited the topic in 2007 to address the 5th Circuit's application of the law in Panetti v. Quarterman.

Earlier coverage of the Simpson case is here.

Virginia executed Larry Bill Elliott last night, as noted in this AP report.

To date, there have been 46 executions in the nation this year; 1,182 since 1977.

According to TDCJ, two additional executions are scheduled in Texas during 2009, including one tomorrow night.  Five execution dates have already been set for 2010 in Texas.

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

Texas is scheduled to conduct its 22nd execution of 2009, tonight in Huntsville.  It would be the 445th Texas 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.  

Michael Graczyk writes the AP report, "Mental issues raised as Texas inmate set to die," via the Dallas Morning News.

A condemned prisoner who volunteered for execution and in recent weeks changed his mind is hoping a court spares him from a trip to the Texas death chamber.

Thirty-year-old Danielle Simpson is set to die Wednesday evening in Huntsville for the abduction-slaying almost 10 years ago of an 84-year-old East Texas woman who was bound with duct tape and hauled around for hours in the trunk of her car. Then Geraldine Davidson was beaten, weighted down with a cinder block and thrown into a river outside Palestine.

Simpson this year won approval from a federal court that he was competent to decide to drop his appeals. Then he reversed himself and lawyers now are in state and federal courts trying to save him from lethal injection.

Last night's scheduled execution of Gerald Eldridge was stayed over issues of his competency to be executed, as noted here.

More on the Supreme Court's 1986 ruling, Ford v. Wainwright, concerning competency to be executed is via Oyez.  The Court revisited the topic in 2007 to address the 5th Circuit's application of the law in Panetti v. Quarterman.

Earlier coverage of the Simpson case is here.

Virginia executed Larry Bill Elliott last night, as noted in this AP report.

To date, there have been 46 executions in the nation this year; 1,182 since 1977.

According to TDCJ, two additional executions are scheduled in Texas during 2009, including one tomorrow night.  Five execution dates have already been set for 2010 in Texas.

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

CSI: Texas

That's the title of an editorial in today's Houston Chronicle.  LINK

Try to imagine how the writers and actors of the three popular CSI: Crime Scene Investigation dramas on TV would handle this story line: After numerous wrongful convictions of innocent Texans using flawed evidence, particularly in cases processed at the Houston Police Crime Lab, in 2005 the state Legislature mandated the creation of the Texas Forensic Science Commission to examine the work of crime scene investigators and the quality of forensic science practiced here. One of the first cases tackled by the nine-member commission (including seven forensic specialists) was the arson conviction and subsequent execution in 2004 of a Corsicana man, Cameron Todd Willingham, for the deaths of his three daughters in a 1991 house fire. A final appeal before the execution to Texas Gov. Rick Perry challenging the validity of the arson evidence was denied.

The commission, composed of gubernatorial appointees, hired a nationally recognized arson expert, Craig Beyler, to evaluate the evidence. Without reaching a conclusion on Willingham's guilt or innocence, his report harshly criticized the scientific conclusions of law enforcement investigators that Willingham deliberately started the fire.

Shortly before the commission was to hear from Beyler, Perry replaced four commission members, including the chairman, Austin attorney Sam Bassett. His choice for the new chairman was former Harris County prosecutor and Williamson County District Attorney John Bradley, who canceled the meeting and raised a number of issues about the commission's lack of rules and procedures. While he pledged to continue the probe of the Willingham case, it's clear his timetable would push it beyond Governor Perry's March primary date with Texas Sen. Kay Bailey Hutchison. Thus the governor would avoid a potentially embarrassing campaign issue — greenlighting the execution of an innocent man.

At a hearing of the state Senate Criminal Justice Committee last week, Bradley suggested putting the commission's work on cases behind closed doors. He also challenged Houston state Sen. Rodney Ellis' participation, citing Ellis' chairmanship of the board of the Innocence Project, one of the key agents in uncovering the Houston Police Crime Lab scandal and an architect of the eventual plan to reform it. The Innocence Project also filed the complaint with the commission on the Willingham case and played a role in the exoneration of another man convicted in a similar arson case.

Ellis responded that in his testimony the chairman seemed bent on stalling the Willingham probe and that “he seemed unaware or unconcerned about the political implication surrounding his appointment by the governor. Texans lack confidence in the forensic science used in Texas cases, and Bradley's testimony did little to restore that confidence.” Ellis said his involvement in the Innocence Project is simply to make sure innocent people are not convicted and sent to prison.

And:

As committee chair Sen. John Whitmire, D-Houston, observed, without the Innocence Project's campaign there likely wouldn't have been a law passed creating the commission in the first place. He expressed hope that the current controversy will raise the forensic commission's profile and influence down the road.

It doesn't take a crack CSI sleuth like the characters played by Laurence Fishburne and Marg Helgenberger to smell some foul politics emanating from the governor's office and the new leadership at the Texas Forensic Science Commission. By attacking the very people and groups that have devoted their efforts to spotlighting wrongful convictions and freeing the innocent, Chairman Bradley has certainly not allayed suspicions that his first priority in his new post is protecting the man who appointed him rather than those unjustly convicted of crimes.

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."

Eldridge Execution Stayed by Federal District Court

Allan Turner reports, "Federal court grants stay of execution for Houston man," for the Houston Chronicle.

Houston capital killer Gerald Eldridge had eaten most of his final meal of pancakes, peanut butter, baked potato and chocolate milk this afternoon when a Houston federal court stayed his execution -- just two hours before he was to be put to death.

Eldridge, 45, had been condemned for the January 1993 murders of his ex-girlfriend Cynthia Bogany, 28, and her 9-year-old daughter, Chirrisa.

Prison spokesman Jason Clark said Eldridge was talking on the telephone with a relative when he was told of the stay.

"He became very emotional," Clark said. Prison authorities were preparing to return him to death row in nearby Livingston.

U.S. District Judge Lee Rosenthal granted Eldridge a 90-day stay and authorized expenditure of $7,500 for further psychiatric examinations.

Eldridge’s attorney, Lee Wilson of Houston, had argued in his appeal that the killer might be seriously mentally ill and incompetent to be executed. Under state law, a person must understand that he will be executed and why before he legally can be put to death.

Prosecutor Inger Hampton responded that Eldridge was likely faking insanity to avoid execution.

In her decision, Rosenthal noted that a state court previously gave the killer only enough money for a preliminary psychiatric evaluation, accepted the state’s expert opinion and did not give Eldridge an opportunity to respond to the prosecution.

In a preliminary mental health assessment submitted by Wilson, a psychologist found Eldridge suffered hallucinations and probable delusional thinking and might not be competent to be executed. She recommended he undergo further pscyhological testing.

As noted earlier, from an AP report:

Eldridge's lawyers argue in appeals to courts that Eldridge is delusional and clueless about his punishment. The U.S. Supreme Court has held that prisoners must be aware of their punishment to be eligible for execution.

More on the Supreme Court's 1986 ruling, Ford v. Wainwright, concerning competency to be executed is via Oyez.  The Court revisited the topic in 2007, to address the 5th Circuit's application of the law in Panetti v. Quarterman.

Texas executions are still scheduled for Wednesday and Thursday evenings this week.

The Current ABA Criminal Justice Magazine

Published by the Criminal Justice Section of the American Bar Association, the Fall 2009 issue focuses on Postconviction Practices.  Here's the table of contents of featured articles:

Priming Postconviction Representation
By Andrew E. Taslitz
Issue editor for the symposium on postconviction practices, Prof. Andrew Taslitz, Howard University School of Law, here introduces the four major features with an overview of the topic and an explanation of how each feature helps nonspecialists—both defense and prosecution—understand and address the needs of this often-forgotten population within the criminal justice system.

Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings
By Eve Brensike Primus
The author, a law professor and former trial and appellate defender, compares state and federal postconviciton review procedures, then examines the obstacles that bar successful postconviction claims: limited availability of evidentiary hearings, loss of witnesses due to delays, and no constitutional right to counsel at postconviction hearings, among others. Four defense options offer what she terms “partial solutions.”

Postconviction Claims of Innocence
By Myrna S. Raeder
Explaining the options and obstacles facing those who make postconviction claims of innocence, the author, a professor at Southwestern University Law School, notes that appellate remedies exist to ensure a fair trial and not to “second-guess” juries. She addresses the relief available under the Innocence Protection Act and the limitations of DNA testing after the Osborne decision. She also looks at the role of crime victims, the ethical obligations of prosecutors, the definition of “new” evidence, statutes of limitations on relevant claims, and “freestanding” constitutional claims of innocence.

Gubernatorial Clemency Powers: Justice or Mercy?
By Kathleen “Cookie” Ridolfi and Seth Gordon
Is a governor’s power of clemency strictly an act of mercy or is it an extension and, at time, correction to the course of justice? In this article the authors examine the two opposite sides of the coin to see how clemency has been applied by different governors and the legal reasoning employed. They conclude that clemency has been underutilized as a correction that is supported by both the courts and the Constitution as a fail-safe for an imperfect justice system. Included is a graph summarizing the procedures in all 50 states.

From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings
By J. McGregor Smyth, Jr.
Collateral consequences are the invisible, often unintended, punishments that those caught in the criminal justice system face. Indeed, the individual need not even be convicted of a crime—a simple arrest can initiate the process. Loss of job, eviction, deportation, severance of student loans, and denial of child custody are the triggers, the author argues, that so often lead to recidivism. Smyth suggests means by which defense and prosecution can reduce these effects, restore rights, and allow individuals a chance to reintegrate into society—rather than reoffend.

Related posts are in the ABA category index.

Executions Don't Deter Criminals

That's the title of the latest column by Anne McGraw Reeves in Pennsylvania's Harrisburg Patriot-News.  LINK

According to the Death Penalty Information Center, 45 convicted murderers have been executed this year, mostly in Texas.

Pennsylvania soon could carry out its first execution in 10 years. Susan McNaughton, state Corrections Department spokeswoman, said back-to-back executions are scheduled for Dec. 16 and 17, pending any stays.

Gov. Ed Rendell has signed 99 death warrants, but no one has died by lethal injection since July 6, 1999, when Gary Heidnik died for savagely killing two women he had imprisoned in his Philadelphia home.

Heidnik's execution should be Pennsylvania's last. Capital punishment is expensive, archaic and questionable as a deterrent to violent crime.

And:

The death penalty has outlived its usefulness. Let's put it to death.

The Death Penalty Debate in Illinois

"Gov. candidates disagree on death penalty," is the title of Ryan Keith's report for the State Journal-Register of Springfield.

Candidates running to become Illinois’ next governor mostly are predictably split on restarting Illinois’ stalled death penalty system. Republicans generally would end the freeze on executions if elected while Democrats would keep it in place.

But there are exceptions. One Republican wants to continue the moratorium as the result of personal experience with a case gone wrong. Another says state executions should end altogether.

And:

Executions in Illinois have been on hold since 2000, when former Gov. George Ryan, a Republican, declared a moratorium after more than a dozen cases where the accused were wrongly sent to death row. Three years later, Ryan cleared death row.

Pushes to overturn the moratorium or even to eliminate the death penalty altogether have stalled since then. Democratic Govs. Rod Blagojevich and Pat Quinn have continued the execution freeze.

Right now, there are 15 inmates on Illinois’ death row, not counting Dugan. Those inmates serve their time at the state prison in Pontiac, said Januari Smith, spokeswoman for the Illinois Department of Corrections. The last person executed in Illinois was Andrew Kokoraleis in 1999.

Quinn spokeswoman Elizabeth Austin said the governor has no immediate plans to lift the moratorium.

“Although he supports capital punishment when applied carefully and fairly, he is deeply concerned by the possibility of an innocent man or woman being executed,” Austin said.

Quinn believes the moratorium buys officials time to ensure reforms put in place to safeguard against future mistakes in the ultimate punishment are working, she said.

And:

Jim Ryan, a former attorney general who strongly supported the death penalty in a past run for governor, now says he would not lift the moratorium until “we have created a more limited and accurate system of capital punishment.”

As DuPage County state’s attorney, Ryan led the wrongful prosecution of the two men in the murder Dugan received death for last week. He apologized in a statement Thursday for failing to achieve “a just outcome” in that case.

Ryan added that, as governor, he would work with law enforcement and death penalty critics to impose reforms that could lead to lifting the moratorium. He also wants a statewide advisory referendum where voters could provide guidance to policymakers on whether to keep the death penalty.

“We owe it to the citizens of Illinois and former defendants in death penalty cases who have been exonerated to learn from our mistakes, including my own, to ensure the criminal justice system is as accurate and fair as humanly possible,” Ryan said.

The Chicago Sun-Times has, "Death row: Now what?," by Dave McKinney, the paper's Springfield bureau chief.

And now, convicted child killer Brian Dugan has joined them, becoming the 15th inmate on Illinois' Death Row at the Pontiac Correctional Center nearly 100 miles south of Chicago.

The ranks of condemned murderers have been quietly swelling since former Gov. George Ryan commuted the death sentences of all 167 Death Row inmates as one of his last acts in office in 2003.

That group faces the ultimate punishment after being sentenced under new rules then-state Sen. Barack Obama helped implement in 2004 to safeguard against sending someone to their death by mistake.

There have been no executions in Illinois since March 1999, when Ryan struggled to permit serial killer Andrew Kokoraleis to be executed. He was the 12th person to be put to death by the state since the death penalty was reimposed in 1977.

The death sentence Dugan received last week for the 1983 murder of 10-year-old Jeanine Nicarico has shone a new spotlight on Illinois' 32-year-old death penalty law and infused an air of urgency into the 2010 campaign for governor -- particularly with regard to whether the state's next chief executive should adhere to Ryan's landmark moratorium on executions that was implemented in 2000.

Former Attorney General Jim Ryan, who wrongly sent two people to Death Row for Jeanine's murder, took the lead on the issue by telling voters for the first time he was "sorry" for his actions as DuPage County's top prosecutor and, if elected governor, would not lift Ryan's moratorium.

Gov. Quinn and his main Democratic opponent, Comptroller Dan Hynes, also advocate leaving the moratorium in place. But Ryan's GOP rivals, for the most part, came out squarely on the other side, indicating they promptly would undo the moratorium so killers like Dugan could be put to death.

And:

The appetite to abolish the death penalty has not been great in the Illinois Legislature. In 2003, a bill that would have done that advanced out of a House committee but was not called for a floor vote by its sponsor, Rep. Art Turner (D-Chicago), because he had fewer than 50 of the necessary 60 votes needed to pass.

"I don't think the sentiment has changed because the nature of the crimes here lately has been so gory," said Turner, now a candidate for lieutenant governor. "I think, generally, people probably still feel they're opposed to it."

Jim Ryan, in his statement of contrition, advocated narrowing the number of factors that make someone eligible for the death penalty, a proposal that DuPage County State's Attorney Joe Birkett intends to press next spring before the General Assembly.

But Birkett says there still is a place for the death penalty, particularly in cases like Dugan's. And since everyone now on Death Row was put there under the 2004 death penalty reforms, Birkett says the likelihood is strong that executions will resume, likely sooner than the eight-year time frame Madigan's office envisions.

Friday, the Sun-Times reported, "Jim Ryan apologizes for wrongfully putting 2 men on Death Row in Nicarico killing," written by McKinney and Abdon Pallasch.

GOP gubernatorial candidate Jim Ryan issued his first outright apology Thursday for wrongfully putting two men on Death Row instead of prosecuting the real killer of 10-year-old Jeanine Nicarico.

DuPage County’s former top prosecutor made his statement after a jury Wednesday sentenced Brian Dugan to death for the Nicarico murder, which Ryan incorrectly had blamed on Rolando Cruz and Alex Hernandez. Both men were later exonerated.

“In the Cruz-Hernandez cases, prosecutors, detectives and police officers acted in good faith and still came up with the wrong result,” Ryan said. “In the Cruz-Hernandez cases, the system and I failed to achieve a just outcome. And for that I am sorry.”

Ryan, a former Illinois attorney general, went on to say that if elected governor, he would not lift the moratorium that former Gov. George Ryan imposed after commuting the sentences of 156 Death Row inmates to life in prison in one of his last acts in office during 2003.

Jim Ryan’s stance on the moratorium puts him at odds with the rest of the GOP field for governor, many of whom reacted to Dugan’s death sentence by pledging to end the moratorium as governor.

Cruz said if Ryan’s apology is sincere, he should meet Cruz at a restaurant and hear some of Cruz’s ideas for reforming the justice system in Illinois — maybe even take Cruz on as an adviser on death penalty issues. If not, maybe Cruz will work against Ryan again, Cruz said in a telephone interview as he bought winter coats for his children near their home in Wisconsin.

“An apology does not undue 12 years of suffering and torture,” Cruz said. “I am taken by the fact he manned up this far, even though he did not come out directly and say, ‘I apologize to you, Rolando Cruz,’ I would like for him to talk to me. This comes 14 years and nine days after my release.”

Ex-Prosecutor: 'I Made a Mistake'

That's the title of Tim Carpenter's report from Kansas' Topeka Capital-Journal.  It appeared in the Sunday edition.  LINK  An extended excerpt:

The life, and more pointedly, the death of small-time hoodlum Ruben Montoya Cantu is etched into the consciousness of former Texas prosecutor Sam Millsap.

Millsap's legal prowess and persuasive skills as Bexar County district attorney sent the 26-year-old Cantu to die by lethal injection at midnight Aug. 24, 1993. Millsap had no physical evidence and no confession, but he parlayed one person's eyewitness testimony into a guilty verdict and death sentence for the 1984 slaying of Pedro Gomez, 25, inside a vacant San Antonio house.

Another notch in the belt for law and order, Texas style.

One problem.

Millsap is now convinced Cantu should have never been on death row.

"I made a mistake," Millsap said. "Ruben Cantu should not have been prosecuted for capital murder. You have to make sure you're getting it right. Testimony of a single eyewitness is not enough."

Millsap was in Topeka on Saturday for the annual meeting of the Kansas Coalition Against the Death Penalty. The organization is hopeful Millsap's insights into the issue can inspire Kansas policymakers to give consideration to abolishing capital punishment. Ten men have been sentenced to death in Kansas since 1994. The Senate Judiciary Committee is scheduled to conduct hearings in January on a bill to repeal the 15-year-old law.

Opponents of the current law advanced a bill to the Senate floor during the 2009 session, but the measure wilted amid challenges from Democratic Attorney General Steve Six and Senate Majority Leader Derek Schmidt, an Independence Republican seeking the 2010 nomination for attorney general.

Fifteen states have no capital punishment statute, with New Jersey abolishing the sanction in 2007 and New Mexico ending the practice in 2008. At least one legislative chamber has passed abolition measures in New Hampshire, Colorado, Montana and Connecticut. Texas, Virginia, Oklahoma and Missouri lead the nation in executions.

Millsap, who has practiced law for 35 years, said Kansas didn't rush to reinstate the death penalty in the 1970s when other states took the plunge. There have been no executions in Kansas since 1965. The state's reticence to pull the trigger on an absolute punishment suggests the public might be persuaded to remove the death penalty from the scales of justice, he said.

"Texas has executed 442 people in the same period Kansas has executed nobody," he said.

Millsap doesn't count himself among those who abhor the death penalty on moral grounds. Instead, his objection centers on the frailties of the judicial system and the extravagant cost of warehousing a special class of inmate throughout years of appeals.

He said in states such as Kansas that don't execute people the status quo for those facing capital punishment takes the form of life without parole.

And:

While Texans remain openly hostile to the idea of abandoning capital punishment, Millsap said the tragic aftermath of the Cantu case should cause level-headed people to evaluate the death penalty with fresh eyes.

"You assume the typical Kansan is a reasonable person and that the typical person is willing to take another look at this issue," Millsap said.

Earlier coverage from Kansas begins here; more from Sam Millsap in the Ruben Cantu index.

More Lethal Injection News From Nebraska

"Bruning: Advance lethal injection," is the title of Paul Hammel's report in today's Omaha World-Herald.

Nebraska should not be deterred by a recently botched execution in Ohio and ought to move forward with a proposed three-drug protocol to carry out executions by lethal injection, State Attorney General Jon Bruning said Monday.

Bruning said he hoped the proposed protocol would avoid the problems experienced in Ohio in September. That's when an execution was called off after an inmate was stuck 18 times with a needle in an unsuccessful attempt to find a suitable vein for injecting the three drugs.

Bruning rejected a call issued Monday by some death-penalty opponents for Nebraska to seek a one-drug protocol, as Ohio adopted last week, to avoid the possibility of tortuous pain for the condemned.

Said Bruning, “I'm confident that Nebraska is not only in the mainstream, but it's law, and protocol will be found to be constitutional.”

He said Nebraska could carry out an execution under the new rules as soon as the first quarter of next year.

The attorney general commented after a public hearing Monday at which death-penalty opponents predicted that the botched execution in Ohio and Ohio's switch to a one-drug protocol would bottle up Nebraska's proposal in litigation.

“If we didn't think the litigation would be long and expensive before Ohio, I think we can guarantee it now,” said Jill Francke, statewide coordinator for the organization Nebraskans Against the Death Penalty.

Nebraska is joining 35 other states and the federal government in using lethal injection to carry out its death penalty.

Only two people testified during the public hearing held by the Corrections Department on its proposed execution protocol. Both were opposed to the death penalty.

About 15 people and organizations — also opponents of capital punishment — submitted written testimony.

New execution rules are needed because the Nebraska Legislature voted last spring to shift the state's method of execution to lethal injection. The action was taken in response to a State Supreme Court ruling in 2008 that said the state's former method, electrocution, constituted cruel and unusual punishment.

Most of the testimony and letters against adopting the new protocol centered on the added expense of lethal injection and capital punishment during rough economic times, the lack of specifics on training executioners and the potential for “torturous pain” with the three-drug protocol.

And:

“They've been sentenced to death. They weren't sentenced to torture,” said Ty Alper, associate director of the Death Penalty Clinic at the University of California at Berkeley.

Alper, who had a speaking engagement at the University of Nebraska College of Law scheduled to coincide with Monday's hearing, said Nebraska's proposed three-drug protocol would be illegal to use on animals in 42 states.

Nebraska TV's report, "Reconsidering Lethal Injection in Nebraska," is by Stacia Kalinoski.

Legislation was passed last year to change Nebraska's death penalty to lethal injection. But the details, like training EMS for lethal injection, cost, or what to do if the person is still alive after injection, have not yet been determined. 

Before they are, opponents Monday got one more chance to voice their concerns in Lincoln. This follows a recent mess-up in Ohio, where executioners couldn't find a good vein during an injection. That caught the attention of Nebraska attorneys, who want the three-drug, lethal injection procedure reconsidered in Nebraska.

Marco Torres finds out in January if he gets the death penalty for double homicide. Monday, advocates against the death sentence make one last plea to the Nebraska Department of Correctional Services before lethal injection protocol is finalized. Jill Francke points to Ohio, saying there's been three botched executions in the last four years. 

"They were unable to complete it, stopped in the middle of it, unable to find a vein. I mean they've been having problems in other states, and Ohio actually came out and said, 'this protocol isn't working for us, we're going to try something different," said the statewide chair of Nebraskans Against the Death Penalty.

Francke joined about 30 others in Lincoln,  hoping to sway the NDSC on lethal injection's inefficiency, and more than ever, its financial burden.

"Mainly, the death penalty is very expensive for the state and comes at a time where we see senators being called back to Lincoln to deal with a budget shortfall."

Earlier coverage from Nebraska begins with this post.

Texas Execution

Texas is scheduled to conduct its 22nd execution of 2009, tonight in Huntsville.  It would be the 445th Texas 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.  

"Texas man set to die for 1993 double slaying," is the title of Michael Graczyk's AP report via the Houston Chronicle.

Forty-five-year-old Gerald Eldridge is set for lethal injection Tuesday evening for a shooting spree that also left his son and another man wounded.

Eldridge's lawyers argue in appeals to courts that Eldridge is delusional and clueless about his punishment. The U.S. Supreme Court has held that prisoners must be aware of their punishment to be eligible for execution.

More on the Supreme Court's 1986 ruling, Ford v. Wainwright, concerning competency to be executed is via Oyez.  The Court revisited the topic in 2007 to address the 5th Circuit's application of the law in Panetti v. Quarterman.

Eldridge's execution would be the 112th ordered from Harris County.  That is more executions than any other state has conducted.  Virginia has now executed 104; Oklahoma, 91.

To date, there have been 45 executions in the nation this year; 1,181 since 1977.

According to TDCJ, three additional executions are scheduled in Texas during 2009, including two more on consecutive nights this week.  Five execution dates have already been set for 2010 in Texas.

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

Magwood v. Culliver From Alabama

"30 Years After Murder, Is His Appeal Too Late?" is the title of Adam Liptak's report in today's New York Times.

The Supreme Court agreed Monday to decide whether it is too late for an Alabama man to argue that the murder that sent him to death row was not a capital crime when he committed it.

The inmate, Billy Joe Magwood, shot and killed Sheriff Neil Grantham in 1979 in front of the Coffee County jail. At the time, Alabama law imposed two requirements before the state’s judges could sentence defendants to death: the commission of one of 14 listed offenses and the existence of certain “aggravating circumstances.”

The murder of a peace officer like a sheriff was a listed offense. But Mr. Magwood’s crime did not satisfy the second requirement. The question before the Supreme Court is whether he took too long to raise the argument that he could not have lawfully been sentenced to death.

Although Mr. Magwood’s lawyers challenged his sentence on other grounds over the years, it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Mr. Magwood resentenced in 1985. He was again sentenced to death the next year.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a petition challenging Mr. Magwood’s original death sentence might well be barred, given his earlier challenges. But Mr. Magwood argues that he is challenging his 1986 resentencing for the first time.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled in January that since Mr. Magwood could have challenged his original sentence on the grounds he now asserts, he cannot raise them now.

In urging the Supreme Court not to hear the case, Magwood v. Culliver, No. 09-158, Attorney General Troy King of Alabama said Mr. Magwood’s argument “unquestionably could have been, but was not, raised during his first round of litigation 20-plus years earlier.”

There appears to be little dispute that a literal reading of the law in effect at the time of the murder did not allow Mr. Magwood to be sentenced to death.

In a 1981 decision in another case, the Alabama Supreme Court acknowledged that “a literal and technical reading of the statute” would forbid the death penalty in circumstances like Mr. Magwood’s. But the court called that result “completely illogical” and “an anomaly in Alabama’s death penalty statute” that could not have been intended by the State Legislature.

Lyle Denniston posted, "Court adds one new case," yesterday at SCOTUS Blog.

The new habeas case that the Court will hear involves an Alabama death-row inmate, Billy Joe Magwood of New Brockton.  He was sentenced to die for murdering a county sheriff in front of the county jail.  He has long suffered from paranoid schizophrenia, and believed that the Army had sent him orders through a surgically implanted device that the sheriff and other authorities were interfering with completion of his “mission.”

After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court.  After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case.  A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result.  The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred.  The claim could have been raised at Magwood’s initial sentencing, that court decided.

In taking the case on to the Supreme Court, Magwood’s counsel argued that habeas petitions brought against new sentences should be treated as initial, first challenges when an inmate has succeeded in winning a chance for a new sentence.  Oral argument of the case is likely to be in March.

All briefing in Magwood v. Culliver is via ScotusWiki.