The StandDown Texas Project

An Update on Ohio Lethal Injection Litigation

The AP report, "Condemned Ohio inmate joins injection challenge," is via the Dayton Daily News.

A federal judge has allowed an inmate scheduled to die Feb. 4 for killing a convenience store owner to challenge Ohio's lethal injection system.

The decision Thursday by U.S. District Court Judge Gregory Frost does not delay next week's execution of 37-year-old Mark Brown.

Brown has joined a lawsuit filed last month that challenges the state's new injection procedure, which includes a never-before-tried backup method that injects drugs directly into muscles.

Brown has asked Frost to delay his execution while he makes his injection challenge, but the judge hasn't ruled on that request.

Earlier coverage from Ohio begins with this post; related posts are in the lethal injection category index.

Cost of Death Penalty Gets National Examination

The widely-read Sunday magazine Parade has posted, "Debating the Cost of Capital Punishment," written by Joe Bargmann.

As cash-strapped states consider the high cost of sentencing prisoners to death, capital punishment has fallen on hard times.

In New Mexico, which voted to abolish the death penalty last year, State Rep. Gail Chasey (D., Albuquerque) specifically noted the tax dollars that would be saved. “We can put that money toward enhancing law enforcement, public works, you name it,” she said. In 2009, 10 other states considered ending capital punishment.

In New Jersey, which halted executions in 2007, a commission found that switching a single condemned inmate’s sentence to life without parole would save the state $1.3 million in incarceration costs alone, because death-row inmates receive special housing and security. Repealing the death penalty in North Carolina, where 169 prisoners are on death row, could save that state $11 million a year in incarceration costs and legal fees associated with the extensive appeals process, according to a study published in American Law and Economics Review in December.

Meanwhile, the number of death sentences carried out each year is dwindling. In 2009, just 52 prisoners—a fraction of the 3279 on death row—were executed. “People tend to think, ‘Oh, you get the death penalty, then there’s an execution,’” says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “But more often than not, the death penalty turns out to be a very expensive form of life imprisonment.”

The online article also features a poll.  Related posts are in the cost index; more on the North Carolina study, here.

Kansas Senate Judiciary Committee Advances Abolition Legislation

"Kansas Senate panel endorses measure to repeal state death penalty," is the title of the initial AP report via the Lawrence Journal-World.

A Senate panel has endorsed a bill to repeal the Kansas death penalty, saying it’s a debate that legislators must conduct.

The 7-to-4 vote Friday by the Judiciary Committee would repeal the 1994 law and replace it with a new crime of aggravated murder, punishable by life in prison without parole.

Debate by the full Senate is expected in early February. The action comes 103 years after Gov. Edward Hoch signed a law repealing Kansas death penalty because it was seldom used.

The bill would not apply to the 10 men currently under death sentences in Kansas, but would not allow any more defendants to be charged with capital murder after July 1.

The Topeka Capital-Journal reports, "Death penalty bill advances," by Barbara Hollingsworth.

"I'm not willing to say no to this issue here," said committee chairman Tim Owens, R-Overland Park.

The bill (SB 375) would allow the abolition of the death penalty while also maintaining death sentences for those already sentenced to death and those who commit crimes of capital murder before July 1. It would create a new charge of "aggravated murder" that would carry a possible sentence of life imprisonment without the possibility of parole. It also would prevent the governor from commuting sentences of life without parole and wouldn't allow release of terminally ill inmates sentenced to life without parole.

Senate Majority Leader Derek Schmidt, R-Independence, asked senators to stop the bill in committee, saying the talks take a tremendous toll on people on both sides of the issue. Last week, some families of murder victims offers emotional testimony in support of the death penalty.

"If deep inside you believe as I do this bill is not going to become law this year, I just ask you to stop it now and not drag everyone through several more rounds of discussion," he said.

Attorney General Steve Six has spoken out against abolishing the death penalty. Also, Gov. Mark Parkinson drafted the current legislation.

Jeannine Koranda writes, "Senate Judiciary panel passes bill to eliminate the death penalty," for the Wichita Eagle.

Senators had considered two bills: Senate Bill 208, which was debated last year, and Senate Bill 375, which replaces the death penalty with the crime of aggravated murder. The new crime comes with a mandatory life without parole sentence.

The committee tabled the first bill and moved forward Senate Bill 375.

Voting yes were Republican senators Dwayne Umbarger, Thayer; John Vratil, Leawood; Mary Pilcher Cook, Shawnee; Les Donovan, Wichita; Chairman Tim Owens, Overland Park, and Democratic senators Laura Kelly, Topeka and David Haley, Kansas City, Kan.

Voting no were Republican senators Jean Schodorf, Wichita; Derek Schmidt, Independence; Julia Lynn, Olathe and Terry Bruce, Hutchinson.

At the Kansas City Star, David Klepper posts, "Death penalty repeal advances in KS."

A similar bill made it to the Senate floor last year before being sent back for further review.

Kansas enacted its current death penalty law in 1994. No one has been put to death in Kansas in more than 40 years.

Opponents to the repeal say there’s virtually no chance it could pass both the Senate and the House and get the signature of Gov. Mark Parkinson.

Senate Majority Leader Derek Schmidt, an Independence Republican, tried but failed to table the bill to avoid what he said will be a fruitless debate.

“I don’t know if there are enough votes in the Senate to advance the bill or not but I don’t believe it’s going to reach the governor’s desk,” Schmidt said.

Earlier coverage from Kansas begins with this post.

Members of Tim Cole Panel Stop by His Grave Site

That's the title of Alex Branch's report in today's Fort Worth Star-Telegram.  LINK

Members of a panel reviewing flaws in the Texas legal system visited Tarrant County on Thursday to study the district attorney’s much-praised policy of making its case files open to defense attorneys.

Before they left, several members of the Timothy Cole Advisory Panel on Wrongful Convictions paid their respects to the man in whose name they pursue change.

Under a heavy, cold rain, they joined Cole’s mother, Ruby Session, and his brother, Cory Session, at Cole’s headstone at Mount Olivet Cemetery in north Fort Worth.

Cole, of Fort Worth, died in prison in 1999 while serving a 25-year sentence for a crime in Lubbock that he did not commit.

"People often say that the system always worked," Cory Session told the group as he stood over his brother’s grave. "This is one case where it never worked."

Cole was exonerated by a Travis County judge early last year after DNA testing cleared him of the 1985 sexual assault of a Texas Tech University student. Gov. Rick Perry recently said he will pardon Cole.

Jim Bethke, who heads the Texas Task Force on Indigent Defense and sits on the Cole panel, said the visit reinforced the panel’s sense of purpose.

"This is the man it is named after," he said. "We’re working so this doesn’t happen again."

The panel’s goal is to develop legislative remedies to false identification by eyewitnesses, fraudulent testimony from snitches and other criminal justice flaws that could land the wrong person behind bars.

Panel members converged on Tarrant County mainly to learn more about the open-file policy, which allows defense attorneys full access to case files before trial.

The policy was enacted under late District Attorney Tim Curry.

"Tarrant County has a reputation of being among the best in the state, if not in the country," Bethke said. "We wanted to get a closer look at how it works."

Earlier coverage of Tim Cole's posthumous exoneration and the advisory panel that bears his name is here; the issue of posthumous clemency, here.

Live Webcast of FSC Meeting

The Texas Forensic Science Commission is meeting at this time.  Thanks to the Innocence Project, you can watch the streaming video at this LINK.

Earlier coverage is here.

Part 2 - Texas Tribune Coverage of Hank Skinner Case

Part two of Brandi Grissom's examination of the Hank Skinner is at the Texas Tribune today.  It's "Case Open: The Investigation."

It makes sense to Greg Jonsson that police in Pampa set their sights on Hank Skinner when they found Skinner's girlfriend and her two sons violently murdered on New Year’s Eve in 1993. Skinner was a hard-drinking, hard-partying guy who had seen the inside of a jail cell more than a few times. He was in the house at the time of the killings, he had blood all over his clothes, and police found him hiding out in an ex-girlfriend’s house. “If I was a police officer, I would have looked at Hank Skinner, too,” says Jonsson, one of eight Northwestern University students who traveled from Illinois to Texas to investigate the case in 2000.

A decade later, Jonsson worries the authorities decided too quickly that Skinner was their man. “I didn’t come away knowing he’s innocent, but I didn’t come away knowing he’s guilty,” Jonsson says. “You’d hope that was the case with someone about to be put to death.”

Skinner is scheduled to be executed on February 24 for the murders of Twila Busby and her two mentally disabled adult sons. Skinner and his lawyers insist he was too intoxicated from liquor and pills that New Year’s Eve to have killed three people, and they contend his defense lawyer — a former district attorney who had previously prosecuted Skinner for theft and assault — did a shoddy job representing him at trial. They’ve been pleading with the state for 15 years to release DNA evidence they believe could exonerate Skinner and keep Texas from killing an innocent man.

And:

Northwestern University professor David Protess got acquainted with Hank Skinner in 2000 as then-Texas Gov. George W. Bush was running for president. Protess teaches a journalism class in which students investigate inmates’ innocence claims. The work of his students led to the exoneration of 11 Illinois inmates, including five who were on death row, between 1996 and 2000. The Republian governor of Illinois during that period, George Ryan, cited their work when, in January 2000, he declared a moratorium on the death penalty in Illinois.

Amid rising national questions about the death penalty that were largely raised by the students’ investigations, Bush was defending Texas’ death chamber, the busiest in the nation. He insisted that Texas had not and would not kill an innocent person under his watch.

To test that proposition, Protess sent a crew of eight journalism students to Texas to investigate Skinner’s case. They spent time in Pampa, interviewed residents about the heinous murders and visited Skinner on death row. Today, they say they came away with more questions than answers about what happened to Busby and her sons. And they have grave lingering concerns about the state's plans to execute Skinner.

Jonsson, now a reporter for the St. Louis Post-Dispatch, was a senior at Northwestern’s Medill School of Journalism when he visited Pampa. “It’s just small, like a rough-around-the-edges town,” Jonsson says, nursing a cup of coffee at a St. Louis coffee house and recalling his first and only time in Texas. He and his classmates interviewed Andrea Reed, the state’s star witness, who at trial testified that Skinner admitted to killing Busby. They talked to the widow of Robert Donnell, Busby's uncle, who had an incestuous relationship with her and stalked her at a party the night of the murders. They visited friends and neighbors of Skinner and the victims. They dug through case files, reviewed evidence and tried to reconstruct the case to see whether their investigation led to the same conclusion as the jury. “We didn’t come in thinking he’s innocent,” Jonsson says. “We did come in thinking it’s possible mistakes were made.”

The students came away with three big questions. First, why didn't law enforcement more fully investigate Donnell as a suspect? Second, why didn't Skinner’s lawyers test what they saw as crucial DNA evidence from the crime scene: Busby's fingernail clippings, a rape kit, two knives, a bloodstained dish towel and a man’s windbreaker with hair and sweat on it. “There was a pile of it here that hadn’t been tested,” Jonsson says. “That was sort of disconcerting.” Third, what about the potential conflict of interest with the lawyer appointed to represent Skinner at trial? Harold Comer was a former Gray County District Attorney who had previously prosecuted Skinner for car theft and assault.

The first installment is noted here.

Innocence Project to Webcast FSC Meeting Tomorrow

Eric Ferrero of the Innocence Project informs me that the IP will webcast tomorrow morning's Texas Forensic Science Commission meeting. 

The streaming video will be available at this LINK

The Texas Forensic Science Commission is meeting tomorrow for the first time in six months. This is the commission's first meeting since Gov. Rick Perry suddenly replaced its chair and several of its members while it was in the middle of an investigation into the case of Cameron Todd Willingham.

The meeting begins at 9:30 a.m. (CST) on Friday, January 29, and is expected to run several hours. Newly appointed commission chairman John Bradley decided to hold the meeting in Harlingen, which makes it difficult for many interested parties in the state to attend. Those who cannot be in Harlingen can watch the meeting live online starting at 9:30 a.m. (CST).

The Willingham case is not on the agenda, which Bradley set, although it was on the agenda for the last scheduled meeting of the commission (which was canceled when Gov. Perry replaced the chair and several members). 

The agenda for tomorrow's meeting does include a discussion of pending cases. Also, individual commissioners have the authority to place a discussion of the Willingham case on the agenda during tomorrow's meeting.

Eric notes:

Willingham was executed in 2004 for allegedly setting a fire that killed his children. Before and after his execution, leading experts found that there was no scientific basis for deeming the fire an act of arson. The Innocence Project formally asked the Forensic Science Commission to investigate the case in 2006. That request specifically asked the commission to determine whether there was negligence or misconduct in the forensic analysis that initially deemed the fire an arson and - importantly - to determine whether other arson convictions in Texas may have been based on the same kind of unreliable forensic analysis. Nearly two years ago, the commission unanimously decided to pursue an investigation, which proceeded in an objective, transparent fashion until October 2009, when the chair and several members were removed. 

The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.

Earlier coverage of the Willingham case begins with this post.  The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. All coverage is available through the Todd Willingham category index.

David Grann's September 2009 New Yorker article is noted here.    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."

Hank Skinner and Post-Conviction DNA Testing

Brandi Grissom writes, "Case Open," the first of two articles looking at the case of Hank Skinner.  Here's an excerpt from the beginning of the article:

Twila Busby was Hank Skinner’s soul mate. “We just fell together. We just clicked, man,” he says. The two were hardly apart after they met at an Alcoholics Anonymous meeting. They would kiss in public and cuddled up on the couch to watch thrillers. They were “sick in love,” Skinner says through a telephone receiver behind a Plexiglas window on Texas’ death row unit in Livingston.

A jury found that Skinner was so sick in love that, in a jealous rage, he strangled Busby, bashed in her head and face with an axe handle and then stabbed to death her two mentally disabled adult sons on New Years Eve 1993. He was sentenced to death for the three murders. His execution is scheduled for February 24.

The 47-year-old doesn’t deny he was in the small house in the tiny West Texas town of Pampa on the night of the murders or that the blood on his clothes that night belonged to 41-year-old Busby and her sons. But Skinner and his lawyers say there’s no way he could have killed anyone; he was so loaded on vodka and pills that he was nearly comatose. They argue that his appointed trial attorney, a former district attorney who had previously prosecuted him for theft and assault, failed to adequately investigate other potential suspects. They insist Texas is about to execute an innocent man — and the state has evidence that could prove it.

The night of the murders, police collected, among other items, clippings from Busby’s broken fingernails, a rape kit, two knives from the crime scene, a bloodstained dishtowel and a man’s windbreaker with sweat and hair on it, but most of it has never been DNA-tested. During Skinner’s trial, prosecutors tested some blood and hair from the scene, but not the fingernails, rape kit, knives, towel or windbreaker. Over the last decade, the state has fought Skinner in court to keep it that way. Prosecutors in Gray County and lawyers for the Texas Attorney General’s Office say Skinner had his chance at trial to test the evidence, but he declined, and the jury spoke; now it's time for him to face the consequences. “It’s already been handled,” Gray County District Attorney Lynn Switzer says. She’s the third DA in Pampa to deal with Skinner, who has sued her in federal court seeking to force release of the DNA. “He doesn’t need to keep trying it over and over and over again. It’s already been handled.”

Skinner’s execution date approaches as Texas faces renewed scrutiny of its famously busy death row and the science used to convict the accused. Since 1973, just 11 death row inmates have been exonerated, according to the Death Penalty Information Center, while more than 440 have been put to death.

And:

In Skinner’s case, attorneys argue that prosecutors selectively used DNA testing to put a potentially innocent man on death row, and that the state is manipulating a 2001 law that allows post-conviction DNA testing to keep him on the path to the death chamber. “The case against him is not open and shut, it’s not ironclad,” says attorney Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic. “And in a reasonable system, we ought to go the extra mile to rule out the possibility that he is an innocent man before going forward with the execution.”

The motion for post-conviction DNA testing is referred to as a Chapter 64 motion; the law is Chapter 64 of the Texas Code of Criminal Procedure.  Skinner has a February 24th execution date.  The second installation of Grissom's report, "Journalism students to the rescue?" will be published tomorrow.

An Update on the David Powell Case

"Death row inmate apologizes to family of officer he killed in 1978," is the title of Tony Plohetski's report in today's Austin American-Statesman.

In his first comments to the family of an Austin police officer he fatally shot more than 30 years ago, Texas death row inmate David Lee Powell took responsibility in a hand-written letter and apologized for "the evil I have done."

"I am infinitely sorry that I killed Ralph Ablanedo ," wrote Powell, who shot Ablanedo 10 times with an AK-47, according to court records. "I stole from you and the world the precious and irreplaceable life of a good man."

Powell, whose execution date could be set within days, said he has no excuse for what happened May 18, 1978, in the 900 block of Live Oak Street near Travis High School in South Austin, but wrote that his actions happened "in a few frightened seconds."

He said that he wrote the four-page letter, dated Dec. 31, after years of consideration and that he wanted to address the enormity of his action.

"I felt a spiritual need and a moral obligation to offer you whatever little I could," Powell wrote.

Powell for decades has declined to publicly discuss the shooting — he never took the stand in any of his trials — and denied the American-Statesman's most recent interview request last week.

His letter to Ablanedo's family comes in the same month that Travis County prosecutors submitted a list of possible execution dates for Powell to state District Judge Mike Lynch. Travis County District Attorney Rosemary Lehmberg said an execution date hasn't been selected to allow Ablanedo's loved ones to review the letter.

And:

The letter, which was obtained by the American-Statesman this week, also comes amid the release of a 29-minute video by letdavidlive.org, a group that is seeking to prevent Powell's execution. The video includes clips from Powell during a prison conversation, as well as interviews with his mother, sister, uncle and college friends.

Earlier coverage of the case begins with this post.

The Cost Argument in Kansas

"Kansas could abolish death penalty to cut costs," is the title of Erin Brown's commentary in today's University Daily Kansan.

The state budget crisis has forced Kansas legislators to re-evaluate state spending, leading some lawmakers to review the cost and effectiveness of the Kansas death penalty law.

The Kansas legislature is reviewing Senate Bills 208 and 375, both of which would abolish the death penalty in Kansas. Senate Bill 208 was introduced and debated last year, but no action was taken on the bill.

After three days of hearings, the Senate Judiciary Committee is scheduled to consider Senate Bill 375 Friday, Sen. Marci Francisco (D-Lawrence), said.

“The major concern that brought this topic up again was looking at the cost,” Francisco said. “Obviously we are in a tight budget situation.”

A death penalty prosecution can cost as much as a million dollars, she said, while a life sentence without parole could save taxpayers half a million dollars or more for each case.

According to Senate Bill 208, the median cost of a non-death-penalty murder case was approximately 70 percent less than the median cost of a death sentence.

Kansas re-enacted the death penalty in 1994, but has not carried out an execution since 1965, according to Senate Bill 375.

And:

George Dungan, a senior from Lincoln, Neb. and vice-president of KU Young Democrats, said he was glad legislators had decided to debate the death penalty, especially during a time of economic instability for the state.

“In a time when Kansas is struggling to make ends meet, it seems absurd to continue an ineffective and expensive program, such as the death penalty,” he said.

Earlier coverage from Kansas begins with this post.

Indigent Defense in Alabama

Lagniappe of Mobile reports, "Legal Expert Calls Mobile County’s Indigent Defense System the ‘Perfect Storm’."  It's written by Peter Teske.

Mobile County’s indigent criminal population is at the mercy of a system one expert in Washington D.C calls the “perfect storm.” Strengthening that storm, this legal expert says, are violent squalls of excessive judicial power and torrential downpours of constitutional disregard.

“Alabama’s right-to-counsel system has the ‘perfect storm’ of characteristics that virtually guarantee ineffective assistance of counsel to the poor,” said National Legal Aid & Defender Association Research Director David Carroll. “Because Alabama pays for all indigent defense services (no county money at all) out of a fund that combines some state general fund monies and revenues collected on a $50 civil filing fee while ceding control of services to the local judiciary, judges can give out big payments to favored attorneys without being fiscally responsible for doing so.”

Symptoms of Carroll’s statement were evident in Lagniappe’s last report, published on Jan. 13, which focused specifically on the six highest earning indigent defense attorneys in Mobile County. They were Habib Yazdi, Lee Hale Jr., Gregory Hughes, Gregory Reese, John Thompson and Russell Bergstrom. All made over six figures with Yazdi, the top earner in the group, making $267,193, and the lowest earner with a sum still in the six-figure category was Russell Bergstrom at $104,307. That information was made available to Lagniappe via a report issued by the State of Alabama’s Finance Department. The report contained payments made to indigent defense attorneys in Mobile County for the fiscal year 2009.

Despite the seemingly high payments, however, Circuit Court Judge Joseph “Rusty” Johnston contends, at least in the instance of capital cases, fees to pay expert witnesses like any psychologists are included in the payment numbers reported by the Alabama Department of Finance.

“The numbers in those reports aren’t always reflecting what the attorneys actually make for themselves,” Johnston said.

But another possible validation of Carroll’s statement — that judges can give out big payments to favored attorneys without being fiscally responsible for doing so — is evidenced in a document provided to Lagniappe from the Alabama Office of Courts. The report chronicles the appointments made by every judge — including both Circuit and District Courts — in the 13th Judicial Circuit of Mobile County for the fiscal year 2009.

Related posts are in the indigent defense index.

Missouri Justices Split on Proportionality Review Standard

"Missouri Supreme Court overturns Lyons' death sentence, upholds Deck's," is the title of David Lieb's AP report, via the Springfield News-Leader.

The Missouri Supreme Court on Tuesday overturned the death sentence of a man it determined was mentally disabled. But judges revealed they are split on how to decide whether death sentences are appropriate.

The high court unanimously overturned the death sentence of Andrew Lyons for the 1992 slaying of his estranged girlfriend in southeast Missouri after concluding he was ineligible for execution because he is mentally disabled.

In a separate case, the court unanimously upheld the death sentence of Carmen Deck for the double murder of an eastern Missouri couple in 1996. But in doing so, the seven-member court issued three separate opinions as to how it should review whether the death sentence is an appropriate punishment for a crime.

In Lyons' case, the Missouri court pointed to a 2002 U.S. Supreme Court ruling barring the mentally disabled from being executed. The state Supreme Court affirmed the recommendations of a special master it had appointed to determine Lyons' mental capacity. It concluded he had an IQ in the range of 61-70 -- just below what it said was the threshold for significantly below-average intelligence.

And:

Deck was convicted of murder and sentenced to death for the fatal shootings of James and Zelma Long during a robbery of their home near De Soto. His two death sentences were twice overturned -- most recently by the U.S. Supreme Court in 2005 because he had been shackled in the presence of jurors. But at a third re-sentencing hearing, Deck again received two death sentences.

The Missouri Supreme court upheld those sentences Tuesday. But judges split over how to apply a more than 25-year-old state law requiring them to consider whether a death sentence is excessive or disproportionate to the penalty imposed in similar cases.

Judge Zel Fischer, who wrote the main opinion, said the "proportionality review is designed to prevent freakish and wanton application of the death penalty" and that judicial precedent only requires the court to make a comparison to other death penalty cases. Fischer was joined on that point by Chief Justice William Ray Price Jr. and Judge Mary Russell.

But Judge Laura Denvir Stith -- in an opinion joined by judges Richard Teitelman and Michael Wolff -- said state law requires the Supreme Court to also consider similar cases in which defendants received life sentences.

In a third opinion, Judge Patricia Breckenridge said she agreed with Fischer that the "proportionality review" is intended to correct only the most "aberrant death sentences" but agreed with Stith that the review also should consider cases involving life prison sentences.

Regardless of the review standard, all the judges said Deck's death sentence was appropriate.

The Missouri Supreme Court opinions are here; summary, here.  Related posts are in the proportionality index.

Also from Missouri, "Koster seeks execution dates for convicted killers," an AP report via the Columbia Missourian.

Missouri's attorney general on Tuesday asked for execution dates for a white supremacist who killed people in several states and for a stalled motorist who killed the man who helped him.

Attorney General Chris Koster asked the state Supreme Court to set execution dates for Joseph Franklin and Allen Nicklasson after a federal appeals court last month cleared the way for Missouri to resume scheduling executions by rejecting a lawsuit from eight inmates over the training and competence of the state's execution team.

And:

Attorney Jennifer Herndon, who is representing both men in separate cases, said further appeals are likely.

"Missouri AG Seeks Execution Dates for Neo-Nazi Mass-murderer, Good Samaritan-killer," is the staff report from today's Kansas City InfoZine.

The US Court of Appeals for the Eighth Circuit had put Missouri's death-penalty protocol on hold while it reviewed certain facts in Clemons v. Crawford. Their ruling denying rehearing December 22, 2009, cleared the way for several Missouri cases to move forward, including these two.

Related posts are in the lethal injection category index.  Earlier coverage from Missouri is here and here.

Pro Death: America Alone

That's the title of an editorial in West Virginia's Charleston Gazette.  LINK

In the dark past, virtually every government put people to death for various criminal, political or religious reasons. For example, Italy's Papal States had an official executioner, Giovanni Bugatti, who dispatched 516 people in the 1800s.

Today, however, almost every advanced democracy has abolished the barbaric death penalty. Throughout Europe and other enlightened places, killing prisoners is considered a relic of brutal times. Now, executions occur chiefly in dictatorships like China or in some Muslim lands where beheadings and stonings still are performed.

The European Union's Charter of Fundamental Rights prohibits executions in any EU nation. Canada, Australia, New Zealand and most of Latin America have banned state killings.

Sadly, America is the only pro-death democracy, standing alongside dictatorships. Thirty-five of the 50 U.S. states still authorize executions. But America's tide is flowing toward "thou shalt not kill." The death penalty is dwindling.

And:

Thank heaven, West Virginia is among compassionate places that halted the death penalty. It's a source of pride and honor.

Texas is America's top killer. When George W. Bush was governor, he set execution records, and mocked a condemned woman. (After he became president, the number of federal death sentences soared to 58.) But the death penalty doesn't deter crime, because Texas has an ugly rate of 5.6 murders per 100,000 people - while Massachusetts, which banned capital punishment, has only 2.6.

Executions belong to gory yesteryear. Enlightened states shouldn't be killers. We hope all of America eventually joins Europe and other democracies that have halted killings.

Related posts are in the editorial index.

Adam Liptak's Latest Sidebar

His Sidebar column in today's New York Times is, "After 34 Years, a Plainspoken Justice Gets Louder."

The Supreme Court announced its big campaign finance decision at 10 in the morning last Thursday. By 10:30 a.m., after Justice Anthony M. Kennedy had offered a brisk summary of the majority opinion and Justice John Paul Stevens labored through a 20-minute rebuttal, a sort of twilight had settled over the courtroom.

It seemed the Stevens era was ending.

Justice Stevens, who will turn 90 in April, joined the court in 1975 and is the longest-serving current justice by more than a decade. He has given signals that he intends to retire at the end of this term, and his dissent on Thursday was shot through with disappointment, frustration and uncharacteristic sarcasm.

He seemed weary, and more than once he stumbled over and mispronounced ordinary words in the lawyer’s lexicon — corruption, corporation, allegation. Sometimes he would take a second or third run at the word, sometimes not.

But there was no mistaking his basic message. “The rule announced today — that Congress must treat corporations exactly like human speakers in the political realm — represents a radical change in the law,” he said from the bench. “The court’s decision is at war with the views of generations of Americans.”

That was the plainspoken style of the last years of Justice Stevens’s tenure. In cases involving prisoners held without charge at Guantánamo Bay and the mentally retarded on death row, his version of American justice was propelled by common sense and moral clarity, and it commanded a majority.

And:

In Justice Stevens’s early years on the court, his views often seemed idiosyncratic, and he would often write separate opinions joined by no other justice. Over the years, though, he has emerged as a master tactician, and he came to use his seniority to great advantage. The senior justice in the majority has the power to assign the majority opinion, and Justice Stevens used that power with patience and skill.

This term, though, Justice Stevens has been more of a loner. Thursday’s decision, Citizens United v. Federal Election Commission, was only the 10th signed decision of the term. In the previous nine, Justice Stevens wrote separately and only for himself three times. On a fourth occasion, he was joined only by Justice Kennedy.

A theme ran through these recent opinions: that the Supreme Court had lost touch with fundamental notions of fair play. In two of the cases, Justice Stevens lashed out at the court’s failure to condemn what he called shoddy work by defense lawyers in death penalty cases.

On Wednesday, in Wood v. Allen, Justice Stevens dissented from a majority decision that said a lawyer fresh out of law school had made a reasonable strategic choice in not pursuing evidence that his client was mentally retarded.

“A decision cannot be fairly characterized as ‘strategic’ unless it is a conscious choice between two legitimate and rational alternatives,” Justice Stevens wrote. “It must be borne of deliberation and not happenstance, inattention or neglect.”

He made a similar point this month in a second capital case, Smith v. Spisak.

“It is difficult to convey how thoroughly egregious counsel’s closing argument was,” Justice Stevens wrote of a defense lawyer’s work. “Suffice it to say that the argument shares far more in common with a prosecutor’s closing than with a criminal defense attorney’s. Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct.”

In the second case, Justice Stevens did vote to uphold the death sentence, saying that even a closing argument worthy of Clarence Darrow would not have spared the defendant.

That carefully calibrated distinction was of a piece with the view he announced in 2008 in Baze v. Rees, when he said he had come to the conclusion that the death penalty violates the Eighth Amendment. But he went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

Thursday’s decision in the Citizens United case was more full-throated.

“The majority blazes through our precedents,” he wrote, “overruling or disavowing a body of case law” that included seven decisions.

Related posts are in the Supreme Court index.  Stevens authored the Court's 2002 ruling in Atkins v. Virginia, which banned the death penalty for offenders with mental retardation.

Jury Selection and the Petit Case in Connecticut

Blawgger and Connecticut attorney Norm Pattis writes the commentary, "Cheshire Case Illustrates Jury Picking Problems," for the Connecticut Law Tribune.

Ice is melting in a New Haven courtroom, and the world has turned out to watch. Will members of the Connecticut General Assembly pay any attention? Will they open their eyes and realize that individual sequestered voir dire wastes time and contributes little or nothing to the pursuit of justice?

Jury selection is underway in the case of State v. Steven Hayes. He is one of the two men accused of invading the home of Dr. William Petit in the summer of 2007. Hayes and his co-defendant face the death penalty for their roles in the rape and murder of the doctor’s wife and two daughters. The men also assaulted Dr. Petit.

The Cheshire home invasion is national news. A photograph of the once happy family has been on the cover of pulp magazines. Already at least one book has been published on the case. Passions run high throughout the state about the men standing trial, with sentiment leaning toward summary execution.

Evidence in the Hayes case is scheduled to begin in September. I say scheduled because it is by no means clear how long it will take to pick a jury. Potential panelists will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months in this case.

Earlier coverage of the case is here and here.

Lethal Injection Concerns Continue in Kentucky

Today's Louisville Courier-Journal carries the AP report, "Kentucky lethal injection protocol vague, experts say," written by Brett Barrouquere.

The state's protocol for carrying out an execution outlines the last days and hours of an inmate's life leading up to execution by lethal injection or electrocution, and the document in some places goes into detail about medical care or preparation.

But the protocol glosses over some areas and omits details in others, particularly when it comes to the insertion of the intravenous device that will deliver the deadly drugs, say three attorneys and a doctor who reviewed Kentucky's proposal.

“It's very vague,” said death penalty expert Deborah Denno, a professor at the Fordham University School of Law. “There's very little transparency.”

The proposed protocol will be discussed at a public hearing in Frankfort Friday, the first time the state has allowed public comment on the execution method.

It comes a month after the Kentucky Supreme Court ordered all executions halted because the state skipped hearings on the administrative regulations that make up the protocol. The state released the protocol publicly days after the ruling.

And:

Unlike other states, such as California, Kentucky keeps the condemned inmate hidden from witnesses behind closed curtains until the IV lines are inserted and he or she is strapped to a gurney. If something were to go wrong, there would be no independent way of knowing it.

Ohio unsuccessfully tried to execute 53-year-old Romell Broom last year. Broom, who was convicted of kidnapping, raping and killing a 14-year-old girl in 1984, complained in an affidavit after the execution attempt that his executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.

During Kentucky's first lethal injection execution, of Eddie Lee Harper in 1999, court records show it took at least two attempts to properly insert an IV.

“Viewing that process is perhaps the most crucial aspect of determining if an execution has gone awry,” said public defender David Barron, who represents multiple Kentucky death row inmates. “Seemingly they do not want the public or anybody else to see what is actually taking place until they're at the point where they believe there is no problem left.”

Other states, such as California and Ohio, are trying to make the process safer and more open, Denno said. Kentucky's protocol seems to stick close to what has been done before, she said.

Earlier coverage from Kentucky is here.  Related articles are in the lethal injection category index.  More on the Supreme Court's 2008 lethal injection ruling, Baze v. Rees -- a Kentucky case -- is from Oyez.

The Clemency Question in Maryland

Charles Lane posts, "Why doesn't O'Malley clear death row?" at the Washington Post's Post Partisan blog.

Maryland Governor Martin O’Malley staunchly opposes the death penalty: Given its flaws -- the lack of deterrent impact, the risk of a wrongful execution, high costs -- capital punishment can be neither morally nor practically justified, he argues.

The issue moves him to eloquence. “Human dignity is the fundamental belief on which the laws of this state and this republic are founded,” O’Malley wrote in a 2007 Post op-ed. “And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.”

As governor, O’Malley supported the creation of a Maryland Commission on Capital Punishment, which called for the abolition of the death penalty based on racial bias and other alleged inequities in the Maryland death penalty. Brandishing those findings, the governor fought for an abolition law last year, falling just short of victory. He and his allies in the state legislature have taken their time about resolving administrative issues with the state’s lethal injection protocols, thus prolonging a Court of Appeals-imposed de facto moratorium on executions.

And:

But I wonder: If O’Malley is so courageous, and this is such an issue of principle for him, why are there still five people on death row in Maryland? Why doesn’t he commute their sentences to life imprisonment, as Maryland’s constitution and laws empower him to do? It would certainly be a more permanent -- and forthright -- approach than this indirect foot-dragging routine with the lethal injection protocols.

To be sure, clearing Death Row wouldn’t achieve his ultimate goal of abolishing the death penalty. But it would save the lives of five people sentenced under what the Commission on Capital Punishment has told the governor was an irretrievably flawed process -- and whose executions, according to O’Malley, would serve no purpose even if that process had been absolutely pristine.

Related posts are in the clemency index.

Judge Keller Shouldn't Get a Pass

That's the title of an editorial in today's Dallas Morning News.  LINK

On this we agree with a special master's finding on Texas Court of Criminal Appeals Presiding Judge Sharon Keller: She could have and should have done more to make clear her court's willingness to receive last-minute pleas before a September 2007 execution.

On this we disagree with the special master: that public humiliation Keller has endured since the celebrated fiasco is punishment enough.

Yet that's what state District Judge David A. Berchelmann Jr. is recommending to the State Commission on Judicial Conduct – essentially to let bygones be bygones, despite a royal screw-up.

And:

Said the special master's report: "Judge Keller certainly did not exhibit a model of open communication."

Texans deserve better out of the top criminal appeals judge, especially in light of the state's nation-leading record on capital punishment, including more than 200 executions since Keller became presiding judge in 2001. It's a grisly business and one that demands everyone be alert until the executioner's needle goes in the arm of the condemned.

Earlier coverage begins with this post.

New Rule Allows Use of Partial DNA Matches

That's the title of Jeremy Peters' report in today's New York Times.  LINK

New York has become the latest of a handful of jurisdictions to permit a controversial use of DNA evidence that gives law enforcement authorities a sophisticated means to track down criminals.

Under a state rule approved in December, DNA found at a crime scene that does not exactly match that of someone in the state’s DNA database can still be used to pursue suspects if the DNA closely resembles that of someone on file.

Since family members share genetic traits, a partial DNA match allows investigators to narrow searches to relatives of people whose DNA is already in the state database, forensic experts say.

But advocates for protecting the public’s privacy warned that the practice could be abused and effectively promoted a guilt-by-association approach to criminal justice that could result in the investigation of many innocent people. New York’s DNA database contains more than 343,000 genetic profiles of people convicted of serious crimes.

As DNA databases have grown and investigators have become more sophisticated about recovering genetic evidence from every possible source at a crime scene, partial matches have become a tantalizing policing tool.

In Denver, prosecutors say searching for partial matches has so far led to one conviction in the year and a half the city has been using new software that allows investigators to identify possible relatives of suspects. In that case, a suspect broke into a car and bled on the dashboard. Investigators were able to match the blood to someone already in the DNA database who turned out to be the suspect’s brother.

New York’s rule, which was approved by the state’s Commission on Forensic Science and is expected to take effect in the spring, will allow forensic investigators working for the State Police to share information about partial matches with local law enforcement agencies.

And:

The new rule gives official legal sanction to a guideline adopted in 2006 by the Federal Bureau of Investigation allowing states to share information about partial matches that were run through a national DNA database overseen by the bureau.

Since the federal policy went into effect, some law enforcement agencies have put in place even more aggressive DNA policies. Besides Denver, investigators in California also explicitly strive to match unidentified DNA samples with someone already on file.

Mitch Morrissey, the Denver district attorney, said fears of privacy violations were overblown. “It’s counterintuitive for me to go knocking on people’s doors and tip off a serial rapist or a murderer to leave town,” he said. “The last thing you want to do is alert their families that the police are looking for them.”

New York officials stressed that the state’s policy would be different from the practice in California and Denver. Forensic scientists, Ms. O’Donnell said, would be permitted to report a partial match to local authorities only if they came across one in the process of conducting a search for a complete match. “It has to be inadvertent,” she said.

But some DNA experts questioned how different or more stringent New York’s policy would be in practical terms.

Related posts are in the DNA index.

In Pennsylvania

"Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999," is the title of Torsten Ove's report for the Pittsburgh Post-Gazette.

Richard Baumhammers and Ronald Taylor have a lot in common.

Both are racially motivated mass killers who slaughtered innocents within a month of each other a decade ago, Mr. Baumhammers targeting minorities and Mr. Taylor targeting whites.

Both are on death row.

And neither is likely to be executed for many years, if ever.

Gov. Ed Rendell signed a death warrant for Mr. Baumhammers, 44, last week, but he admitted the execution isn't likely to happen on March 18, the scheduled date for lethal injection.

That's because the state has what the governor calls a "de facto" moratorium on executions.

The governor has signed 101 death warrants, including one for Mr. Taylor in 2006. But the state hasn't killed anyone since Gary Heidnik in 1999. More than 220 prisoners are on death row statewide.

And:

Richard Baumhammers and Ronald Taylor have a lot in common.

Both are racially motivated mass killers who slaughtered innocents within a month of each other a decade ago, Mr. Baumhammers targeting minorities and Mr. Taylor targeting whites.

Both are on death row.

And neither is likely to be executed for many years, if ever.

Gov. Ed Rendell signed a death warrant for Mr. Baumhammers, 44, last week, but he admitted the execution isn't likely to happen on March 18, the scheduled date for lethal injection.

That's because the state has what the governor calls a "de facto" moratorium on executions.

The governor has signed 101 death warrants, including one for Mr. Taylor in 2006. But the state hasn't killed anyone since Gary Heidnik in 1999. More than 220 prisoners are on death row statewide.

Mr. Baumhammers' lawyer, Caroline Roberto, refused to comment on what her next step will be and said his parents won't discuss their son, either.

But realistically, the only way Mr. Baumhammers' execution will take place is if he decides to waive any more appeals. Since the death penalty was reinstated in 1978, Pennsylvania has never executed anyone who had taken full advantage of the appeals process. The three prisoners put to death since 1978 all waived their rights.

Earlier coverage from Pennsylvania is here and here.

OpEd Roundup

Frank Baumgartner writes the OpEd, "Death penalty's vanishing point?" for the News & Observer of North Carolina.  He's a political science prof at UNC-Chapel Hill.

In this time of fiscal stress, a new study by Duke economist Philip Cook suggests that the state could save $11 million per year if it stopped pursuing capital punishment. Is that a cost savings worth seeking, or would it be too radical a shift from current practices?

Recent trends suggest that in fact, juries and prosecutors across the state have already dramatically reduced their attachment to the death penalty. Going the final step might produce large savings with little actual change from current practice.

Consistently over the past decade, North Carolinians have suffered 500 to 600 homicides per year; the rate in 2008 (6.7 per 1,000 population) was a slight decline from 2007 and a larger decline from 1999 (7.2 per 1,000). In general these numbers have fluctuated but show no great trend. Thankfully, the numbers are slightly declining rather than increasing; we can all be pleased of that!

Whereas murders have been relatively flat, the number of capital punishment trials has declined sharply: From 1996 to 2000, there were 55 to 65 each year before starting a steep decline. From 51 trials in 2001, the numbers went down in a steady beat: 35 in 2002, 22 in 2003, and so on until there were just 12 capital trials in 2008 and nine in 2009.

So, prosecutors who once sought capital punishment in 10 percent to 12 percent of all murders statewide have moved to seeking it in less than 2 percent of the cases.

And:

Considering that prosecutors have been requesting death less and less, and that juries have been even more sparing in their willingness to impose it, Cook's estimate takes on additional meaning. If we can save that much money by making such a small change from current practices, why not?

Baumgartner was the lead author of "The Decline of the Death Penalty and the Discovery of Innocence," when he was at Penn State.  More on the book, here.  You can order the book from Amazon.

The Roman Catholic Bishop of Wichita Kansas, Michael Jackels writes, "State can protect safety without death penalty," for the Wichita Eagle.  It also appeared in the Sunday edition.

The Catholic Church teaches that public authorities have the right and the duty to punish criminals in a way that matches the seriousness of their crime. They are morally justified in the most serious cases to impose even the death penalty. This is a self-defense based on the commandment to love oneself (Mark 12:31). The guilt of an unjust aggressor and the need to protect society make capital punishment morally different from the killing of an innocent child in elective abortion, which is never justified.

It is worth recalling, however, that Pope John Paul II often made public appeals for public authorities to show clemency and to refrain from using the death penalty. In this same vein, Pope Benedict XVI recently commended the Philippine government for outlawing the use of the death penalty.

These interventions were made because the Catholic Church also teaches that the death penalty should not be imposed if there are other ways to guarantee public order and the safety of citizens.

And:

Support for the abolishment of the death penalty in no way diminishes the condemnation of the evil deeds that brutally victimize innocent people, or the profound sympathy toward people who have been made a victim or who grieve the murder of a family member or friend. This righteous anger and compassion notwithstanding, recourse can and should be made to bloodless means to protect public order and the safety of people, instead of making use of the death penalty.

Earlier coverage from Kansas begins with this post.

Death Row Exonerations Point to Flaws in System

That's the title of Alison Bath's report in the Sunday edition of the Shreveport Times.  LINK

Eight men have been found innocent of the crimes that put them on Louisiana's death row. All were exonerated before they were put to death and ultimately freed from prison.

Most often, those exonerations came after it was revealed that prosecutors withheld evidence that was favorable to the defendant, relied on the testimony of a jailhouse snitch or used faulty eyewitness identification to gain a conviction.

Those men aren't alone.

Nationwide, 139 people sentenced to death since 1973 subsequently have been found innocent and released from death row, according to data provided by the Washington D.C.-based Death Penalty Information Center.

With 23, Florida leads the nation in death row exonerations. Illinois, Texas and Oklahoma take second, third and fourth, respectively. And Louisiana holds fifth place with two other states for the most death row exonerations in the country.

The reasons for these wrongful convictions vary, but advocates say the exonerations are evidence the country's judicial system is fatally flawed when it comes to the death penalty.

"We don't know how many mistakes have been made," said Richard Dieter, Death Penalty Information Center executive director. "It points to a danger that we may have missed some. It raises a number of concerns that innocent people may have been executed."

And:

Emily Maw, Project Innocence New Orleans director, said most exonerations don't have a single cause. Rather, a combination of factors paired with an overburdened and underfunded criminal justice system can lead to putting innocent people behind bars.

Among the causes of wrongful conviction:

Prosecutorial and police misconduct, such as withholding evidence or not revealing a witness was a paid informant.

Poor evidence handling and preservation, such as throwing away or careless processing.

Wrong witness identifications or using questionable witnesses to build a case, such as co-defendants who have a vested interest in pointing the finger at someone else.

Those problems, due in part to a "win at all costs" attitude among some statewide prosecutors, not only are resulting in wrongful convictions and increased jurisprudence costs but also are threatening citizens' safety, Maw said.

"It's not cost effective to incarcerate people who are innocent," said Maw, who was careful to point out that not all misconduct by prosecutors or people is willful. "If you incarcerate the wrong person, it's pretty likely that someone else is going to continue doing bad things."

In the case of the eight men exonerated, removed from Louisiana's death row and freed, most occurred after 1997. Some were freed because more sophisticated DNA testing was able to exclude them from the crime. Four of those exonerations — including the precedent-setting case of John Thompson — were the result of problem prosecutions out of the Orleans district attorney's office.

Earlier reporting from Louisiana is here.

The San Antonio Express-News on Judge Keller

"Remove Sharon Keller from appeals court post," is the title of the editorial from the Saturday edition of the paper.

The key finding in State District Judge David Berchelmann's report on Texas Court of Criminal Appeals Judge Sharon Keller is that she “did not violate any written or unwritten rules or laws.” And in a very narrow technical sense, this finding is correct.

Keller, the presiding judge on the state's highest criminal appeals court, faces five charges of judicial misconduct for her actions involving the last-minute appeal for death row inmate Michael Wayne Richard. On Sept. 25, 2007, the date scheduled for Richard's execution, the U.S. Supreme Court announced it would hear a case to determine the constitutionality of lethal injection.

And:

Richard's guilt is not at issue, nor is the fact that he ultimately would have been executed. What is at issue is Keller's judgment in allowing the state to proceed with the ultimate, irreversible sanction when she was well aware that a reasonable appeal was forthcoming, and without taking the minimally reasonable step of informing the appropriate colleague. She had an ethical responsibility to see that justice was properly served.

Keller has made the Texas judicial system a national embarrassment. She is unfit to serve as the state's highest-ranking criminal judge. Contrary to Berchelmann's finding, the State Commission on Judicial Conduct should continue to seek her removal from the bench by the Texas Supreme Court. If the commission does not, Texas voters will have the opportunity to do so in 2012.

Earlier coverage begins with the bottom section of the preceding post.

David Dow at Huffington Post

The Director of the Texas Innocence Network at the University of Houston Law Center posts, "The Autobiography of an Execution," at Huffington Post this morning.  The post is a must read, and I'm looking forward to reading the book.

I've written a book called "The Autobiography of an Execution", published by Twelve. It's about my life with my wife Katya and our nine-year-old son, Lincoln. I've adored fatherhood since Lincoln was six weeks old (before that was a different story), but being a parent is the one thing in my life that creates real pressure. I've seen plenty of great kids whose parents are screw-ups, and a few messed up kids whose parents are terrific, but still. You can't help but think there's at least a little bit of cause and effect.

I have a recurring dream. A moment before I die, someone hands me a list of how I have spent every waking moment of my life. This list is the reason I refuse to accede to Lincoln's repeated request that I join Farmville on Facebook. (Farmville is a virtual farm where you plant crops, raise livestock, and otherwise pretend to be a farmer.) I'm fine with the hours I've spent watching "Real Housewives" with Katya -- how is that any more of a waste than reading a great novel by myself? -- but I do have regrets. Sometimes I don't get home until after Lincoln has gone to sleep, and the reason is that I've stayed late at my office, trying to stave off the execution of a convicted murderer.

And:

I started being a death penalty lawyer because I agreed to work on behalf of a single inmate whose lawyer quit when the inmate was two weeks away from execution. I kept being a death penalty lawyer because I can't stop. It's like being at an excruciating lecture. If I act quickly, I can get up and pretend to go to the bathroom and never return, but if I wait too long, and I'm left there with just a handful of other Hamlets, I can't bring myself to leave until it's done.

I of course appreciate the irony that by being unable to abandon this work, I feel guilty that I am missing too many games of Blockus with my wife and son. Thankfully, it does not happen often. More thankfully still, when it does, Lincoln's first question to me the next morning is whether I was able to help the person I was trying to save, and when I say no, as I usually do, he gives me a squawk, which is what they call a hug on "SpongeBob", and tells me he hopes I have better luck next time.

You can order the book at Amazon, Barnes & Noble, Borders or your local independent bookstore.

On Saturday, February 27, Politics & Prose will host an author event in Washington DC; details here.  I'll post other author events as they become scheduled.

Earlier coverage of the book  begins with this post.

Friday afternoon, Diane Jennings posted, "Defense attorney responds to judge's findings in Keller inquiry," at the Dallas Morning News Crime blog.

Criminal defense attorney David Dow is receiving good reviews for his new book, The Autobiography of an Execution. But his work as litigation director of the Texas Defender Service, on behalf of death row inmate Michael Richard, was harshly criticized in the recent findings of fact inquiry into the conduct of Judge Sharon Keller.

And:

In response, Dow says "There were things that if we could do the whole thing over again, we would have done differently, but I'm not sure that any of the things that we would have done differently are the things that he talked about."

For instance, Dow disagrees with the notion that a lawyer instead of a paralegal might have gotten a different response from the clerk, calling that an "insulting suggestion." He also doesn't endorse the idea of calling other judges after being told no, saying he could be accused of "forum shopping." And he denies embellishing any account of what happened that day to spark a media uproar.

"That's just false," he says, adding that, "Our involvement in this from the inception has been only because the state commission has asked us to participate.

Coverage of the Findings in In Re: Keller begins here.

Rethinking How the Law Deals with Mentally Ill Criminals

That's the title of Lance Dickie's column in today's Seattle Times.  It's subtitled, "The Washington State Legislature is looking at two bills that would change how the law deals with mentally ill criminals. The time might be right."

My opposition to the death penalty is regularly tested by horrific events in the news. Even so, my basest instincts for retribution are still trumped by a deeper suspicion of government getting it right.

Grievous mistakes are made in capital cases, and they cannot be undone. I've never understood the passions of conservatives who do not trust government to make a land-use decision, but staunchly support what I would call the ultimate down zone.

I do not want the government executing anyone on my behalf, but I am fully in favor of locking up the worst criminals and throwing away the proverbial key. If a felon merits execution, which certainly equates to removal from society, that is how I envision a life sentence.

Regular meals, a bunk, medical care and a religious text of choice. No TV, radio, Internet, books, diversions or noncustodial contacts outside of legal representation. Complete social isolation. The ultimate time out.

Cruel and unusual? Perhaps, and an obvious reason why no one person makes up the rules. Yet the public does not expect the laws and procedures governing crime and punishment, and public safety to remain static.

Two disturbing incidents inspired state Sen. Mike Carrell, R-Lakewood, to introduce SB 6310, which creates a new verdict form, guilty and mentally ill. Defendants found guilty but not legally insane would be evaluated and stabilized at a state psychiatric hospital, and then released to the state Department of Corrections for treatment in a correctional setting.

Defendants face the same penalties as anyone found guilty. Not guilty by reason of insanity would remain a possible outcome.

Gov. Chris Gregoire has proposed legislation that echoes Carrell's concerns about supervision and oversight of mentally ill felons.

Public confidence in the process was rattled by two grim incidents.

Related posts are in the mental illness index.

In Illinois

Today's Chicago Tribune carries the OpEd, "Illinois can't afford its death penalty system."  It written by Betsy Wilson, an attorney in Illinois.

Illinois is broke. Comptroller Dan Hynes announced that the state is currently unable to pay more than $5 billion of its bills. That includes $1 billion promised to public schools and preschool programs, and nearly $800 million owed to universities and community colleges. Local school districts are considering massive layoffs. Substance-abuse clinics are near closure. Organizations that perform vital services are going under because the state cannot pay its bills. People are suffering.

Gubernatorial candidates disagree over whether we should raise taxes to cover these expenses. But most everyone agrees that we need to examine our expenses and cut spending that does not benefit Illinois citizens.

In the meantime, we are spending hundreds of millions of dollars for the extravagance of a death-penalty system.

When I tell people that I work in death-penalty defense, they often express surprise. They say: "I thought Illinois got rid of the death penalty!" That is true, to an extent. There has been a moratorium on executions since 2000. No death sentence has been carried out since then, and none is foreseeable. But the state continues to seek the death penalty and sentence people to death.

The life-and-death nature of these cases comes at great expense. The Constitution and the U.S. Supreme Court require that death-penalty defendants be afforded "heightened due process," because this is the ultimate punishment, and, if we're going to do it, we must do it right. This means more experts. Longer trials. More lawyers. More complicated appeals. As a result, death-penalty cases cost far more than cases in which the maximum sentence is life without the possibility of parole.

At any given time, there are a couple hundred death-penalty cases pending in Illinois' courts. State Treasurer Alexi Giannoulias' Web site says that the state's $12 million Capital Litigation Trust Fund pays between $500,000 and $700,000 in an average death-penalty case. Add to that the costs that are not paid by the fund — but are instead paid by the budgets of prosecutors, defense organizations, law enforcement agencies and the courts — and each death-penalty case could easily cost more than $1 million. For Illinois, that translates to hundreds of millions of taxpayer dollars.

What do the citizens of Illinois get in return for this tremendous outlay of money? Nothing.

The Belleville Daily News reports, "Quinn, Hynes seek Democratic nod for governor."

Democrats are fighting to hold on to the Illinois governor's mansion in the aftermath of the Rod Blagojevich scandal and in the middle of a crushing budget crisis. Gov. Pat Quinn says he needs more time to fix the financial mess he inherited last year when lawmakers ousted Blagojevich from office. His opponent, Dan Hynes, contends Quinn isn't up to the task. Whoever wins the nomination will have to fend off a Republican challenger sure to make the November election a referendum on eight years of Democratic rule.

- Dan Hynes, 41, is serving his third term as state comptroller, where he has been a vocal advocate for better management of the state's money. He is the son of influential Chicago politician Thomas Hynes and ran unsuccessfully for the Democratic Senate nomination in 2004.

- Pat Quinn is a longtime political activist and consumer advocate who gradually became a mainstream politician. Quinn, 61, served one term as state treasurer and later was elected lieutenant governor under Gov. Rod Blagojevich. He became governor in January 2009 after Blagojevich was tossed out of office.

And:

- Death Penalty & Crime: Both Hynes and Quinn support the death penalty but would continue the state's moratorium on executions. Both men would sign legislation banning the sale and possession of semiautomatic assault-style weapons in Illinois and would veto legislation allowing concealed-carry of handguns.

Jury Selection

The next several posts will form on opinion roundup of columns and OpEds.  Let's start with Connecticut attorney Richard Meehan Jr.'s column, "Jury selection in capital case an arduous, tricky process," for the Norwich Bulletin.

Jury selection began this week in the trial of Steven Hayes, one of two men charged in the brutal deaths of Jennifer Hawke-Petit and her two daughters in 2007. The process, known as voir dire, is slated to take up to six months. A jury of 12 and four alternates will eventually be seated. Two additional potential alternates will be selected in the event that any of the others are unable to attend the start of the trial, scheduled to begin Sept. 13. If not needed, those extra alternates will be discharged.

Hayes’ trial has been severed from his co-defendant, Joshua Komisarjevsky. The defendants have mutually exclusive defenses that cannot be presented to a single jury in a joint trial — the “other dude did it” defense.

And:

What makes these trials more onerous is the protracted length of each. In capital cases, jury selection proceeds slowly, each juror questioned in the absence of the other panel members. Connecticut is unique in that it is the only state that permits this individual voir dire. For decades, efforts have been made to eliminate and streamline this process. Many believe this trial may be the death knell of the individual voir dire. 

In federal court, large panels are assembled and typically questioned by the trial judge. Lawyers present proposed questions to the judge and have the opportunity to individually question jurors whose responses are concerning.

In controversial federal cases, lawyers prepare jury questionnaires distributed well in advance of jury selection. That provides the opportunity to advance arguments to excuse some in advance of the actual voir dire. In former Mayor Joe Ganim’s trial, we used such a questionnaire to whittle a panel of more than 150 to a more manageable number. Jury selection was completed in one day.

Obstacles

There are two major issues in the Cheshire case that add to the length of voir dire. There’s been massive pre-trial publicity, requiring careful examination to determine if a juror can still be impartial. In a case like this, it would be unusual to find someone who had no prior knowledge of the case.

The second issue is finding “death-qualified” jurors, someone not so opposed to the death penalty on moral or religious grounds that they could not return a verdict of death. A proponent of capital punishment also can serve if they convince the court they’re capable of also considering life imprisonment as an alternative.

The net effect is that most death-qualified juries tend to be weighted heavily in favor of the death penalty.

El Paso Medical Examiner's Credentials Questioned

"El Paso medical examiner to keep his job," is the title of David Crowder's El Paso Inc. report from Tuesday.

The El Paso County chief medical examiner, Dr. Paul Shrode, who has been under fire for apparent falsehoods in his résumé, kept his job after an inquiry Friday by County Commissioners Court.

“I think we should just leave things as they are,” Commissioner Willie Gandara said, voicing an opinion that everyone on the court agreed to, even if reluctantly.

In recent weeks, Shrode has found himself in the middle of the political fight between county attorney Jo Anne Bernal and lawyer Theresa Caballero, who is challenging Bernal in the March primary.

Commissioners Court hired Strode as medical examiner at a $210,000 salary in 2005 after a long search to fill the vacant position. He is now making $254,385.

Before Friday’s meeting, Commissioner Dan Haggerty said officials whose agencies depend on the medical examiner’s office, including District Attorney Jaime Esparza, are satisfied with Shrode’s performance.

And:

If there has been one piece of good news for the beleaguered physician lately, it might have been that the Eighth Court of Appeals in El Paso decided that Shrode had been qualified to testify as an expert witness on the death of a child in 2007.

But the court’s opinion, written by Justice Ann McClure and issued Jan. 8, contained an error that went right to the heart of the controversy by stating that he is “board certified in forensic pathology.”

McClure acknowledged the apparent factual error in the decision she wrote for the three-member court.

“I will stand by my opinion, and to the extent that anything I’ve said in the opinion is factually inaccurate, I’m sure that someone will be bringing that to our attention in a motion for rehearing,” she said. “I, of course, cannot speak to that issue because the case is not final yet and any motion for rehearing would have to be considered by the court.”

Shrode is a licensed physician, which is all a medical examiner who performs autopsies needs to be in Texas, said Leigh Hopper, spokeswoman for the Texas Medical Board.

“In Texas, you just need to be an M.D.,” she said. “We don’t set minimum requirements for medical examiners. The one thing that is laid out is that performing autopsies constitutes the practice of medicine, which requires a medical license.”

The résumé Shrode provided when applying for the El Paso County medical examiner’s job in 2005 suggested that he was board certified by stating that he “passed forensic pathology boards (2003).”

But, Hopper said, “he doesn’t list himself as board certified with our agency … and there’s no mention of a law degree.”

On January 16th, the El Paso Times reported, "Medical examiner in hot seat: County to look into Shrode's credentials," by Diana Washington Valdez.

The County Commissioners Court voted unanimously on Friday to direct the county's human resources department to verify Chief Medical Examiner Dr. Paul Shrode's credentials.

The county judge and commissioners reached the decision after meeting in closed session to discuss questions about Shrode's background and performance. The court held a special meeting Friday to discuss his annual review.

Shrode, 60, who was at the meeting, is El Paso County's highest-paid employee at more than $254,000 a year.

County Judge Anthony Cobos said that in light of new information, he wanted the commissioners to respond to public questions about Shrode's résumé and qualifications.

And:

One of Shrode's résumés -- he's modified his résumé at least twice -- is a court exhibit and part of the official court record.

Shrode's résumé said he "passed forensic pathology boards" in 2003. The American Board of Pathology notified Shrode on Oct. 28, 2003, that he did not pass all parts of the exams required for board certification. In 2008, the same board said he is not board-eligible.

The commissioners briefly looked at Shrode's credentials two years ago, then publicly backed him. They revisited the issue because of a Texas Medical Board complaint against Shrode and questions by the public and the news media about his credentials.

El Pasoan Rick Ledesma, a candidate for county judge, and one of two people to speak to the commissioners during the open part of Friday's session, said the best thing that could happen is for Shrode to resign and reapply for the job with a corrected résumé.

"His integrity is in question," Ledesma said.

Related posts are in the forensics index.  Some notable posts include:

• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

Kansas Legislative Hearing Continues

Today's Wichita Eagle reports, "Victims' families argue to keep death penalty."  It's written by Jeannine Koranda.

The state’s death penalty should be retained as justice for victims of killers like the Carr brothers and Justin Thurber, lawmakers heard Thursday.

“You cannot put a price tag on my sister’s life,” Jennifer Sanderholm told the Senate Judiciary Committee. “That is ultimately what you will do if you abolish the death penalty.”

Thurber raped, sodomized and murdered 19-year-old Jodi Sanderholm of Arkansas City in January 2007. He was sentenced to die by lethal injection a little more than two years later.

And:

Supporters of the death penalty said it is used sparingly — only for the most egregious crimes —and shouldn’t be weighed in terms of cost.

“By repealing the death penalty in Kansas, you will be placing the lives of others in jeopardy,” said Lois Muller, mother of Heather Muller.

“Heather was murdered by Jonathan and Reginald Carr Dec. 15, 2000,” said Muller. “Words can’t begin to put an understanding to the impact that sentence has had on our lives.”

And:

Those who back a repeal of the death penalty have told lawmakers it is too costly, not a deterrent to criminals and could end the lives of innocent people.

“After a while, increases in the severity don’t contribute to the deterrent effect of the penalty,” University of Colorado sociology professor Michael Radelet said Tuesday.

Money spent on death penalty cases would deter more crime if it were used to catch criminals and solve crimes, he said.

A 2003 state audit showed that costs in death penalty cases averaged $1.2 million, compared with $740,000 for other murder cases.

In testimony Wednesday, Sam Millsap, a former district attorney from San Antonio said he worried that the country’s justice system is not equipped to decide who lives and who dies.

He has prosecuted cases that led to executions, but in 2005, a newspaper investigation indicated his prosecution of Ruben Cantu may have resulted in the execution of an innocent man, he said.

“Because our criminal justice system, on its best day, is driven by decisions that are made by imperfect human beings who make mistakes, there is compelling evidence that our criminal justice system is simply not competent to decide who may live and who must die,” he said.

Kansas reinstated the death penalty in 1994, but the state has not executed anyone since 1965.

"Pleas made for executions," by Barbara Hollingsworth is in today's Topeka Capital-Journal.

Kelsey Smith's parents wore her smiling face on pins buttoned to their shirts as they told lawmakers the man who sexually assaulted and strangled their daughter deserved to face the state's death penalty law.

The Overland Park teen was murdered in 2007 by Edwin R. Hall, who was charged with capital murder and was facing the death penalty when he pleaded guilty and was sentenced to life in prison.

"Justice is priceless," said Smith's dad, Greg Smith. "We need to keep this law on the books."

The Senate Judiciary Committee on Thursday wrapped up three days of testimony on two bills that seek to abolish the death penalty. The committee is to begin work on the bills Jan. 29.

Earlier in the week, the testimony was dominated by legal arguments, cost estimates and data. On Thursday, testimony from families of murder victims dominated the day. They asked lawmakers not to consider potential savings as a reason to do away with the death penalty and asked that death sentences be carried out faster.

And:

One bill (SB 208) being considered failed to advance during last year's legislative session. A new bill (SB 375) would allow the abolition of the death penalty while also maintaining death sentences for those already sentenced to death and those who commit crimes of capital murder before July 1. It would create a new charge of "aggravated murder" that would carry a possible sentence of life imprisonment without the possibility of parole.

And:

Sen. Tim Owens, R-Overland Park, committee chairman, told the families he knew the debates were painful but said it was an important discussion.

Senate Majority Leader Derek Schmidt, R-Independence, said the only question about the death penalty debate is how quickly it is over.

"The death penalty bill is not going to make it through the process this year," said Schmidt, who sits on the committee.

Earlier coverage of the Kansas hearings starts here.

FSC to Meet - Willingham Not a Topic

"Texas panel to meet, but Willingham not on agenda," is the title of Jeff Carlton's AP report, via the Washington Post.

A state science panel looking into a possible wrongful conviction in a Texas death penalty case is meeting for the first time since Gov. Rick Perry removed several members, but the execution case is not on the agenda.

When it convenes Jan. 29 in Harlingen, the Texas Forensic Science Commission won't resume its probe into the arson finding that led to Cameron Todd Willingham's 2004 execution. Instead, the meeting will focus on formalizing procedures explaining how the group will conduct business, John Bradley, the commission's newly appointed chairman, said Thursday.

The meeting is the first since July. In September, Perry dismissed three members of the commission, two days before it was to consider a report critical of the arson finding that led to the execution. Bradley canceled the subsequent meeting.

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who authored the report in question.

Bradley said he isn't ignoring Willingham, and that the board's investigation of the case could conclude this summer. He said he will assign pending cases, including Willingham, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn't have policies in place that answer "simple questions, like 'What is the standard for accepting or rejecting a complaint?'"

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it "an agenda that deflects attention from what everybody wants answered."

And Sam Bassett, the panel's deposed chairman, said it appears the group's new direction "is in my view unnecessarily delaying the investigations we had going."

And:

Also at issue is the location Bradley chose for the upcoming meeting - out-of-the-way Harlingen, a city of more than 60,000 on the Mexican border in the southern tip of Texas. The commission's previous dozen meetings were in Austin, Houston, Dallas and San Antonio - the state's four largest cities.

Bradley said he chose Harlingen because a new commissioner lives there, because of interest from state Sen. Juan "Chuy" Hinojosa and to show diversity in the location of the meetings.

Scheck said the Innocence Project hopes to broadcast the meeting on the Internet.

Earlier coverage of the Willingham case begins with this post.  The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. All coverage is available through the Todd Willingham category index.

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." 

More Keller Commentary

Andrew Cohen writes, "The 'Killer' Keller Case: When Judges Go Bad," for the Atlantic's Correspondents blog.

Having watched Spencer Tracy in Inherit The Wind Tuesday night, having therefore been sensitized again to the layers of injustice this country has so frequently tolerated from its "justice system," it was particularly disappointing to read just one evening later the disgracefully apologetic "findings of fact" issued Wednesday in the case of Texas Court of Criminal Appeals Judge Sharon Keller.

You remember Keller. She is the judge who told a capital defendant's lawyers trying to file an important brief on the eve of his execution, "We close at 5," before leaving early for the afternoon to go home to meet a repairman. The judge didn't tell her colleagues about the pending delivery of court papers and didn't tell defense attorneys about other filing options available to them. The death row inmate, Michael Richard, was subsequently executed.

Keller was so cavalier in handling the Richard matter--her conduct was so below that which even Texas expects from its appellate judges--that she was brought up on ethics charges before the State Commission on Judicial Ethics, which conducted a significant hearing last year. This week, one of Keller's judicial colleagues, District Judge David Berchelmann Jr., concluded that while Keller's conduct was not "exemplary" it wasn't so egregious as to warrant her losing her job--or even receiving a formal reprimand. The 16-page ruling is a whitewash, full of tsk tsk and post hoc rationalizations. And now the matter goes back to the Commission which can adopt it, ignore it, or ask for more. 

And:

Keller's case--and so far the judicial system's reaction to it in Texas--sadly represents a predictable devolution in capital punishment cases there. State prosecutors for so long have dehumanized capital defendants, state court judges for so long have limited or ignored their rights, state juries for so long have rubber-stamped their convictions, that Keller's reaction that day was inevitable. She did not act like a judge. She acted like a lying, cheating scoundrel. And this week Texas told her everything was all right.

Legal analyst Andrew Cohen has been watching Judge Keller and the CCA, as noted here, here, and here.

Fort Worth Star-Telegram editorial board member and columnist Linda Campbell writes, "Miscommunication led to disorder in the Texas Court of Criminal Appeals."

The special master’s report about Texas Court of Criminal Appeals Presiding Judge Sharon Keller could hardly be more withering.

Her conduct "was not exemplary of a public servant."

She "should have been more open and helpful."

Her judgment "was highly questionable."

"In sum, there is a valid reason why many in the legal community are not proud of Judge Keller’s actions," special master David Berchelmann Jr. wrote in a highly anticipated report released Wednesday by the State Commission on Judicial Conduct.

Why, then, did Berchelmann conclude that Keller should neither be removed from office nor even reprimanded "beyond the public humiliation she has surely suffered" from being tried on ethics charges?

In his 16-page report, Berchelmann, a state district judge in San Antonio, reasons that the Texas Defender Service was largely responsible for mishandling a last-minute appeal on behalf of Death Row inmate Michael Wayne Richard.

And:

Yes, Keller should have told Marty to notify Johnson, and yes, Keller should have called Johnson herself, the special master wrote. And at the very least, Keller should have told her colleagues what happened, especially the following day when they were puzzling over why Richard hadn’t filed an emergency appeal.

But even being a duplicitous colleague — my word, definitely not his — didn’t violate any rules or laws either, Berchelmann concluded.

The 13-member conduct commission now will set a hearing to decide whether to discipline Keller or dismiss the charges.

Even though the special master characterized the "ordeal" as a learning tool rather than grounds for sanctions, he didn’t exactly let Keller off the hook. "Although she says that if she could do it all over again she would not change any of her actions, this cannot be true," he wrote. "Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice."

If Keller learned that lesson, it would be important to demonstrate it if she intends to run for re-election in 2012.

Earlier coverage begins here; the Special Master's Findings, here.

Indiana Death Penalty Expansion Not Expected

The Indianapolis Star reports,"Murder-related bill unlikely to advance," written by Robert Annis.

A legislative proposal triggered by a murder in Boone County last year likely won't make it out of the state Senate because of budget concerns.

Senate Bill 43 would allow a county prosecutor to seek the death penalty or life without parole in cases where a murder is committed in the presence of a minor under 16 years old. Additionally, the bill also would allow a judge to add 10 years to sentences where an offender violated a protective order.

Sen. Phil Boots, R-Crawfordsville, said the bill was spurred by conversations with Boone County Prosecutor Todd Meyer, who pushed for the legislation after he prosecuted Michael Stayer, 32, for the July bludgeoning death of his ex-wife, Beth Stayer, 34, in her Whitestown home as their 5-year-old-son Carson watched.

Meyer said he wanted to push for the death penalty, but current state law wouldn't allow him to do so. Michael Stayer eventually agreed to a plea deal that will likely bring him 43 years behind bars when he's sentenced in February.

And:

"We were told no bill with a negative financial impact would go forward," Boots said. "It's good public policy to take today's economic environment into account (when considering legislation), and it's hard to justify how much it would cost. It shouldn't be entirely fiscal, but in today's climate, that's what it comes down to."

With the state facing a nearly $2 billion revenue shortfall in 2010, legislators are reluctant to pass any bill that would add to the state's expenses. Boots said if it passes out of the Committee on Corrections, Criminal and Civil Matters, it would go to the finance committee chaired by Sen. Luke Kenley, R-Noblesville, where it would likely die.

The exact financial impact of the bill isn't known, but according to a report from the state's Office of Fiscal and Management Analysis, prosecuting death penalty and life without parole cases carry a much higher cost than cases with sentences of 45 to 65 years in prison, the current standard.

Related articles can be found in the cost and state legislation indexes.

A Legacy From Dallas' Past

"Federal appeals court orders new trial for black suspect," is the title of Steve McGonigle's report in today's Dallas Morning News.

Dallas County's long history of racial discrimination in jury selection added a chapter from a new era this week.

The 5th U.S. Circuit Court of Appeals has ordered a new trial for Cecil Keith Hayes, a black man from Mesquite who was convicted of armed robbery and sentenced to 70 years in prison by a nearly all-white Dallas jury in 2002.

A three-judge panel concluded that prosecutors illegally struck two qualified black prospective jurors during jury selection and then tried to disguise their intentions to seat an all-white jury.

Unlike previous court findings of jury discrimination in Dallas County, Tuesday's ruling focuses on a case decided almost two decades after a landmark Supreme Court decision that prohibited biased practices.

In the Hayes case, prosecutors initially struck all eight black prospective jurors. One was impaneled after the trial judge rejected the prosecutor's explanation that the woman had been sleeping in court and was "too grandmotherly."

The trial judge accepted explanations that another black juror appeared "hostile" during questioning and that a second one gave inconsistent answers about whether she would require the state to produce the firearm allegedly used in the crime.

The appeals court deemed those explanations not credible, and it criticized the trial judge, Thomas Thorpe, for accepting the prosecutor's statements.

"Hayes has shown that the state's reasons for striking ... were implausible or invalid, and therefore were pretexts for discrimination," stated the decision written by Judge Catharina Haynes, a former civil court judge in Dallas.

And:

The decision marked the second time in 13 months that the appeals court has overturned a case from Dallas County because of jury discrimination. Last January, the court reversed the 1979 death penalty conviction of Jonathan Bruce Reed.

Those rulings followed a 2005 Supreme Court decision that reversed a Dallas County conviction from 1986 because of overt racial discrimination by prosecutors.

Both cases were reversed for violating the Supreme Court's ban on jury discrimination expressed in a 1986 decision, Batson vs. Kentucky. A concurring opinion cited an investigation of jury selection by The News as evidence that discrimination continued to be a problem in the criminal justice system.

Related posts are in the race index; more on Batson v. Kentucky, via Oyez.

The Latest in the Rodney Reed Case

Jordan Smith reports, "Rodney Reed Case Back in Court," for the latest issue of the Austin Chronicle.

The legal procedural drama that is the Rodney Reed death penalty case is back in federal court. On Dec. 22, 2009, lawyers for Reed filed a whopping 158-page brief in federal district court, laying out all the reasons Reed deserves a new day in court.

Reed was convicted and sentenced to death for the 1996 murder in Bastrop of 19-year-old Stacey Stites. The state said that Reed, while on foot, somehow overcame Stites as she drove to work for an early morning shift at H-E-B and that semen DNA found in Stites proves the state's case. Reed's defenders say the DNA evidence is only proof that the two were intimate and that in fact Reed was having a consensual relationship with Stites. A far more likely suspect in her murder, they say, is Jimmy Fennell, a former Georgetown police officer to whom Stites was engaged. Fennell is currently serving a 10-year prison sentence for the kidnapping and sexual assault of a woman while on duty and responding to a call for police service.

The Reed case has been bounced back and forth between state and federal court since the late Nineties. When new evidence came to light about Fennell's alleged history of violence toward women, the case was removed from federal court and sent back to the Court of Criminal Appeals. To date, however, the CCA, Texas' highest criminal court, has denied Reed relief. "We're back where we were in 2002," said Reed attorney Bryce Benjet. Now, however, all of Reed's claims for relief are being presented in one appeal, as opposed to the piecemeal approach the CCA required.

Smith notes that Rodney Reed is trying to win an evidentiary hearing.  Earlier coverage is here.

Nebraska Legislators Reject Cost Study

"How expensive is the death penalty?" is the title of Paul Hammel's report in today's Omaha World-Herald.

State lawmakers easily defeated a proposal Wednesday that would have provided an answer to a much-debated question: How much does it cost Nebraska to have a death penalty?

On a 30-15 vote, state senators shot down a proposal by Omaha Sen. Brenda Council to have the State Auditor’s Office study how much money is spent prosecuting and appealing death penalty cases, as well as the potential savings of repealing capital punishment.

Council said Nebraska has never arrived at an accurate accounting of its death penalty costs. In neighboring Kansas, death penalty prosecutions were found to cost 16 times as much as cases resulting in sentences of life imprisonment.

“The public needs to know,” Council said, particularly when the state is short of money for effective crime-fighting tools.

Opponents criticized the study idea, saying that it should have been introduced as a separate bill rather than as a last-minute amendment and that a study wouldn’t change minds in the Legislature, which, by all measures, remains staunchly pro-death penalty.

“It just plain won’t matter,” said Sen. Scott Lautenbaugh of Omaha, a capital punishment supporter.

Last year, lawmakers voted 34-12 to change the state’s mode of execution from electrocution to lethal injection. Wednesday’s vote on Council’s study amendment gave no hint that any minds have changed since then.

Senators began debating Council’s proposal to repeal the death penalty, Legislative Bill 306, on Wednesday morning — and debate will resume on that bill this morning.

But with little chance of passing a repeal measure, Council offered the study proposal as an alternative, saying it would show Nebraskans the monetary costs of the death penalty.

And:

Council argued that the death penalty has been applied unfairly, carries the risk of executing innocent people and is an ineffective deterrent to crime.

She cited a 2009 “Smart on Crime” survey of 500 police chiefs across the country, in which capital punishment was rated the least-efficient use of taxpayer funds to fight crime.

Sen. Danielle Conrad of Lincoln said that there are more effective ways to deter crime and that money should be used for them.

The State Patrol, for instance, is at its lowest staffing level since 1985-86, Conrad said, and its crime lab has lost employees because the state can’t pay competitive wages.

Council said that in Omaha last year, the number of homicides fell to 29 from 44 in 2008. The main reason wasn’t the death penalty, she said, but stronger community-based efforts to head off retaliatory killings.

Jo Anne Young writes, "Amendment to explore death penalty costs fails," for the Lincoln Journal Star.

Nebraska state senators on Wednesday resoundingly turned down a proposal by Omaha Sen. Brenda Council to determine the costs of carrying out the death penalty in the state.

Senators had opened the day debating repeal of the death penalty with a bill (LB306) that would substitute a sentence of life without the possibility of parole. In that debate, proponents talked about the need to know the costs of death penalty cases to Nebraska taxpayers.

Other states had figured out the costs, Council said. Nebraskans should know, too.

Kansas, for example, found the median cost for death penalty cases, through execution, was $1.26 million. The median cost for non-death penalty cases through the end of incarceration was $740,000.

It found investigation costs were three times higher for death penalty cases; trial costs 16 times greater, partly because of the length of trial; and appeal costs were 21 times greater.

The Kansas report stressed that actual cost figures for those cases in that state don't exist. No cases have completed the appeals process and resulted in executions.

A little more than 90 minutes into the repeal debate Wednesday, Council filed a replacement amendment to direct State Auditor Mike Foley to find and report on those costs.

Today's Fremont Tribune carries the AP report by Nate Jenkins, "Neb. lawmakers nix request for death-penalty info."

Nebraska lawmakers on Wednesday rejected a request for a study into the cost of carrying out the death penalty _ a decision that could ease the transition from the electric chair to lethal injection.

Lacking support for a vote to repeal the death penalty altogether, death-penalty opponents quickly switched the debate to whether the state auditor should compile a comprehensive report of the penalty's costs.

The Legislature is not expected to vote on a measure to repeal the death penalty this year.

And:

While 11 people are on Nebraska's death row, experts have said they don't expect an execution in the state for several years.

Nebraska's last execution was in 1997.

Earlier coverage from Nebraska begins with this post.

Kansas Abolition Debate Continues

"Executions debated," is the title of Barbara Hollingsworth's report in today Topeka Capital-Journal.

Gov. Mark Parkinson, who drafted the state's death penalty law more than 15 years ago, said he believes the law is still good policy, but he is open to suggestions.

His comments come as the Senate Judiciary Committee considers two bills that seek to abolish the death penalty in Kansas. Hearings, which continue Thursday, have included legal and cost arguments as well as personal stories of loss.

Parkinson, now a Democrat, was serving as a Republican legislator when he worked on the current death penalty law, which went into effect in 1994. He said he believed it could be a deterrent.

"At the time I did it I felt it was very good public policy," Parkinson said on Wednesday. "I'm still convinced it was good public policy. But I'm open minded, and if we have an opportunity to examine the impact it's had and whether it's achieved what we hoped it would achieve, I'm open to looking at any suggestion the Legislature might have."

One bill being considered (SB 208) failed to advance during last year's legislative session. A new bill (SB 375) would allow the abolition of the death penalty while also maintaining death sentences for those already sentenced to death and those who commit crimes of capital murder before July 1. It would create a new charge of "aggravated murder" that would carry a possible sentence of life imprisonment without the possibility of parole.

Amy Scott said death is the right punishment for Jonathan and Reginald Carr, who in 2000 kidnapped her boyfriend and four of her friends and then shot them execution-style. The one woman who survived attended Wednesday's hearings but didn't speak.

"The crimes they committed were so mind-blowingly awful that it was an appropriate punishment," Scott testified.

Scott said that Reginald Carr laughed and taunted the victim and families at trial.

"He thinks he's above God," she said. "He thinks he's above you, and he thinks he's above the courts."

Bud Welch told a different story of loss. His daughter, Julie-Marie, was working as an interpreter for the Social Security Administration in the Alfred P. Murrah Federal Building when Timothy McVeigh parked a truck outside full of explosives. Welch said his anger consumed him after her death until he eventually began speaking against the death penalty. In the end, he said he found no healing peace in McVeigh's execution.

"There was nothing about that process that brought me any peace," said Welch, of the organization Murdered Victims Families for Human Rights.

Other testimony on Wednesday came from the Kansas Attorney General's Office. Attorney General Steve Six has already said he supports the death penalty. Deputy attorney general Barry Disney argued that Kansas has a conservative death penalty law that can act as a deterrent and said estimates of cost savings are based on inaccurate and incomplete information. Even if there are savings, Deputy Solicitor General Kris Ailslieger said cost shouldn't be a deciding factor.

Jeannine Koranda files, "Victims' families to testify against abolishing death penalty," about today's hearing for the Wichita Eagle.

The Senate Judiciary Committee is heading into its third day of hearings on proposals to abolish the state’s death penalty.

Sen. Tim Owens, R-Overland Park, who chairs the committee, warned that the hearings my extend into Friday.

Included in the written testimony for Thursday are statements from Lois Muller, mother of Heather Muller, who was murdered by Jonathan and Reginald Carr in December 2000, and Larry Heyka, father of Brad Heyka, who was also killed by the Carr brothers.

There is also written testimony from Jen Sanderholm, sister of Jodi Sanderholm who was raped, sodomized and murdered by Justin Thurber in January 2007.

The victims’ families all oppose abolishing the state’s death penalty.

The print edition of today's Eagle also has John Milburn's AP report, "Prison officials reviews Kan. budget cuts."

Wednesday was the 10th day of the 2010 session out of 90 days scheduled. ... The Senate Judiciary Committee continued to hear testimony on two bills that would repeal the state's death penalty law.

Earlier coverage from Kansas begins with this post.

Texas Civil Rights Project on the Keller Findings

Jim Harrington, Director of the Texas Civil Rights Project has issued a statement on Judge Berchelmann’s Findings.  Harrington was one of the Texas attorneys who originally filed a complaint against Judge Keller with the Commission on Judicial Conduct.

"The decision of the Master, a retired judge, not to recommend any discipline, even a reprimand, for Judge Sharon Keller's role in the premature execution of Michael Richard, is stunning and reprehensible.

"This is all the more egregious in view of the Master's finding that Judge Keller's conduct was 'not exemplary of a public servant,' 'highly questionable,' unreasonable, and something that 'many in the legal community are not proud of.'

"The Master's decision sends a message that, in effect, judges are above the law and face no consequence, except embarrassment, when they do not abide by fundamental constitutional principles -- and due process is one of our most fundamental rights, especially when a person's life is at issue."

Earlier coverage begins with the preceding post; the Special Master's Findings, here.

Additional News Coverage In RE: Keller

Yesterday's initial coverage is here; the Special Master's Findings, here.

Houston Chronicle columnist Rick Casey writes, "Keller is lucky judge wasn't just like her."

Sharon Keller, the controversial chief judge of the Texas Court of Criminal Appeals, has escaped yet another controversy.

I'm confident more will come.

Based on four days of testimony last August, San Antonio District Judge David Berchelmann filed a “findings of fact” that was highly critical of Keller but wrote that she should not be removed from office or formally reprimanded for her unseemly behavior in a 2007 death penalty case.

I have followed Keller for well more than a decade and have formed the opinion that she is a terrible judge.

When she first ran to be the state's highest judge for criminal matters she described herself publicly as a “pro-prosecution judge.” I prefer judges who are pro-law and pro-fairness.

There are no liberals on the all-Republican Court of Criminal Appeals, but Keller has repeatedly proved herself so “pro-prosecution” that she is often in the minority of the court over which she presides.

Just one example: She ruled in support of a death sentence despite the fact that the state's expert witness testified that he was a future danger because he was Hispanic, a ruling so embarrassing that then-Attorney General John Cornyn, no bleeding heart, asked the U.S. Supreme to overturn it. They did.

I have long believed she should be removed from her bench, but I agree with Berchelmann's finding that the case at hand doesn't merit it.

It should be done by the voters, not by the Texas Commission on Judicial Conduct.

Don't get me wrong. I'm not saying the commission should not have brought the case against Keller. There was plenty of reason to believe that in 1997 she had improperly denied a condemned man a last-minute appeal.

The commission's action was the only way for the public and the commission itself to learn the whole story.

It was far better than the federal courts' secretive handling of charges against its judges, as we found out in the Judge Samuel Kent case.

"Ruling Backs Judge Who Rejected Post-5 P.M. Appeal," is the title of John Schwartz' report for today's New York Times.

In a statement, Judge Keller said she was “gratified” by the decision. While she said at her ethics hearing that she would not have done anything different in the case, in her statement on Wednesday she said she “takes to heart the advice that she should strive to be more collegial and that the court’s internal communications should improve.”

Judge Berchelmann’s findings do not bind the State Commission on Judicial Conduct, which will decide whether disciplinary action is required.

The Texas Defender Service took issue with the judge’s findings, saying, “Shifting the responsibility to ensure access to justice away from the court and to T.D.S. is akin to blaming a paramedic for a car crash victim’s injuries.”

Cynthia Hujar Orr, president of the National Association of Criminal Defense Lawyers, said Judge Keller “needs correction from her peers.”

But Judge Keller’s lawyer, Charles L. Babcock, said that “the opinion basically exonerates her,” and added that he expected the commission “will dismiss the charges and that will be the end of it.”

Ashby Jones posts, "Sharon Keller Saga Ends Not With a Bang, But a Whimper," at the Wall Street Journal Law Blog.

Well, we weren’t entirely sure that Sharon Keller, the presiding judge the Texas Court of Criminal Appeals, was going to get in big trouble over the events of Sept. 25, 2007.

But we hardly expected that the special master presiding over the judicial misconduct charges against Keller would blame another party for the unfortunate series of events. Or that the master, San Antonio-based judge David Berchelmann Jr., would express sympathy for Keller.

And:

At the same time, Bechelmann saved a few mild barbs for Keller. He said she “should have been more open and helpful” about how the Texas Defender Service could file. “Further, her judgment in not keeping the clerk’s office open past 5:00 to allow the TDS to file was highly questionable,” Berchelmann wrote. “In sum, there is valid reason why many in the legal community are not proud of Judge Keller’s actions.”

Berchelmann added, however, that Keller “did not violate any written or unwritten rules or laws.”

Today's Austin American-Statesman carries, "Do not remove Keller from bench, findings recommend," by Chuck Lindell.

The 13-member commission will consider Berchelmann's findings — gleaned from evidence presented during a four-day August hearing — at an as-yet unscheduled public meeting. Commissioners can dismiss the charges, reprimand Keller or recommend she be removed from office.

Berchelmann's findings adopted almost every major argument made in Keller's defense, and her lawyer said such an emphatic victory should prompt the commission to drop its charges.

"Hopefully, that will be the end of this," lawyer Chip Babcock said. "I can't imagine that they would do anything other than dismiss. It would be shocking if they did."

Seana Willing, head of the judicial conduct agency, said commissioners may "accept, modify, supplement or reject any or all Judge Berchelmann’s findings."

Willing and Austin lawyer Mike McKetta, who acted as prosecutor during Keller's August trial, have 15 days to send commissioners their objections to Berchelmann's findings.

"While Judge Berchelmann recommended no further sanction 'beyond the public humiliation she has surely suffered,' (he) also has found serious shortcomings, 'failings' and 'poor judgment' on the part of Judge Keller," Willing said in an e-mail.

Berchelmann's findings did not completely exonerate Keller, who has been on the state's highest criminal court since 1995, including the past nine years as presiding judge.

The AP report, with a slightly erroneous headline, "Texas court rules that Judge Sharon Keller should not lose her job," is via the Dallas Morning News.

Dave Montgomery writes a lengthy article, "Judge who refused to keep office open in Death Row caseshouldn't be removed, ruling says," for today's Fort Worth Star-Telegram.

The commission’s special prosecutor, Austin attorney John J. "Mike" McKetta, is reviewing Berchelmann’s recommendation to determine the panel’s response, said Seana Willing, the commission’s executive director.

"While Judge Berchelmann recommended no further sanction 'beyond the public humiliation she has surely suffered,’ Judge Berchelmann also has found serious shortcomings, 'failings’ and 'poor judgment’ on the part of Judge Keller," Willing said. "It is entirely within the commissioners’ discretion to accept, modify, supplement or reject any or all of Judge Berchelmann’s findings."

Critics of the decision have 15 days to file objections to Berchelmann’s report, Willing said.

The commission will then conduct a public hearing to hear arguments from both sides, Willing said. It will either uphold the special master’s findings or move the case into another phase, she said. The commission’s options will be to dismiss the case, issue a public censure or recommend to the Texas Supreme Court that Keller be removed. 

More on Montana Lethal Injection Litigation

"Canadian on death row sues for end of execution chamber," by Randy Boswell of Canwest News Service is via the National Post.  It appeared in the Monday edition. 

A U.S. lawsuit by Alberta-born double-murderer Ronald Smith -- the only Canadian citizen facing the death penalty in the United States -- has put Montana's controversial execution chamber itself on death row.

Facing a legal challenge from Smith over the alleged "cruelty" of Montana's lethal-injection mode of capital punishment, state officials have advised a judge hearing the case that the makeshift facility used for decades to administer a fatal dose of drugs to condemned prisoners -- a converted trailer on the grounds of Montana State Prison -- will be shut down this year after a new "multi-purpose storage room" is added to the jail's maximum security building for executions and other uses.

The plan has put Smith's lawsuit -- backed by the American Civil Liberties Union -- on hold until the design of the $300,000, 72-sq. metre addition is complete.

The prison's current execution trailer has long been targeted by Montana death penalty opponents as a symbol of what they claim is the state's "inhumane" protocol for carrying out lethal injections.

The existing "death chamber" is a "1960s model" trailer, says Smith lawyer Greg Jackson, adding that the lawsuit is being delayed pending the redesign because the state's execution protocol "is integrally tied to the facility."

And:

The lawsuit said Montana's lethal injection procedure follows "a protocol that is not even allowed in the euthanasia of a household pet" under state veterinary rules.

"Botched executions in Florida and Ohio, which use a three-drug protocol similar to Montana, have graphically illustrated how lethal injections go awry, and the great pain and suffering inflicted on condemned prisoners," the ACLU said at the time. "They show how untrained individuals can mismanage this lethal injection procedure, resulting in prolonged pain and suffering to the condemned."

Earlier coverage of the Montana execution chamber begins with this post.

Special Master Finds CCA Presiding Judge Sharon Keller Should Not Be Punished

That's the title of Mary Alice Robbins' report for Texas Lawyer.  LINK

In his long-awaited findings of fact, a San Antonio judge has concluded that Texas Court of Criminal Appeals Presiding Judge Sharon Keller's conduct on the day the state executed Michael Richard "does not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered." [See the Special Master's Findings of Fact here.]

Judge David Berchelmann Jr. of the 37th District Court, who serves as special master for In Re: The Honorable Sharon Keller, issued his findings today. Berchelmann presided over the August 2009 hearing on the State Commission on Judicial Conduct's charges against Keller. The judicial conduct commission initiated formal proceedings against Keller in February 2009, stemming from allegations that she made a decision that the CCA clerk's office would not remain open past 5 p.m. on Sept. 25, 2007, effectively closing the court to Richard's attorneys, who were trying to file a petition for writ of prohibition and for stay of execution to prevent his execution later that day.

Peggy Fikac writes, "Judge blames defense for executed inmate's botched appeal - Special master says Criminal Court of Appeals judge could have done better, though," for the San Antonio Express-News and Houston Chronicle.

A special master has concluded that Texas Court of Criminal Appeals Presiding Judge Sharon Keller doesn't deserve to be removed from office or even given “further reprimand beyond the public humiliation she has surely suffered” for her conduct in a death row inmate's failed effort to file a last-minute appeal before his execution.

And:

Berchelmann, in blaming the Texas Defender Service for the bulk of the problem, wrote that it didn't begin contemplating a lethal injection claim until two hours after the U.S. Supreme Court agreed to hear the Kentucky case and that it assigned a junior attorney to draft the necessary papers.

Among other points, he wrote that it failed to pursue all possible ways to file the claim with the court; and that it relied on paralegals instead of its experienced lawyers to communicate with court staff.

The special master also didn't endorse Keller's behavior, saying among other things she “should have been more open and helpful” about how the Texas Defender Service could file.

“Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable,” Berchelmann wrote. “In sum, there is valid reason why many in the legal community are not proud of Judge Keller's actions.”

Berchelmann added, however, that Keller “did not violate any written or unwritten rules or laws.”

“Of course, that does not absolve her of the responsibility to ensure that the courts remain fair and just,” he wrote. “Her conduct, however, does not warrant her removal from office, or even further reprimand beyond the public humiliation she has surely suffered.”

Chuck Lindell posts, "Keller should not be removed from office, special judge says," at the Austin American-Statesman site, and updating.

Presiding Judge Sharon Keller’s lawyer, Chip Babcock, released this statement:

“Judge Keller is gratified for Judge Berchelmann’s decision which finds that ‘she did not violate any written or unwritten rules or laws and her conduct does not warrant removal from office, or even further reprimand.’ Judge Keller takes to heart the advice that she should strive to be more collegial and that the court’s internal communications should improve.”

The Texas Tribune posts, "Sharon Keller Keeps the Bench," by Elise Hu. 

The special master finds that all parties - including the Texas Defender Service - were partly at fault, and that Keller's "conduct ... was not exemplary of a public servant". But she won't be removed from the bench or any further reprimand "beyond the public humiliation she has surely suffered," writes Special Master David Berchelmann, Jr.

Earlier coverage begins with this post.  Some of the critical early reporting is noted in these posts:

• More on the CCA's Refusal to Consider Richard Stay Request
• Editorial Outrage at CCA Closed Door
• More on the CCA Closed Door
• Ethics Complaint Filed Against CCA Presiding Judge
• More on the Ethics Complaint Against Judge Keller
• Continued Criticism of Presiding Judge Sharon Keller
• More on the September 25 Timeline and the Execution of Michael Richard

More Supreme Court News

This post contains news of a ruling today, a ruling on jury selection procedures in Georgia, and an argument preview in a case involving AEDPA.

The Court this morning ruled against an Alabama death row inmate in Wood v. Allen.  The opinion is here, in Adobe .pdf format.  AP reports, "Supreme Court upholds death penalty for mentally impaired Ala. man with inexperienced lawyer," via Newser.com

The court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993. She was killed by a shotgun blast to her head as she slept in her home in Troy, Ala.

A federal judge had tossed out the death sentence on the basis of the poor performance of Wood's lawyer in the sentencing phase of his trial. The lawyer, described in court papers as lacking criminal law experience, failed to tell jurors that Wood had an IQ of less than 70 and had been classified as mentally retarded.

The Atlanta-based 11th U.S. Circuit Court of Appeals reinstated the death sentence, ruling that Wood had failed to show that the lawyers was unconstitutionally ineffective.

The Supreme Court agreed. "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information," Justice Sonia Sotomayor said.

She was joined in the opinion by Chief Justice John Roberts and Justices Antonin Scalia, Ruth Bader Ginsburg, Clarence Thomas, Stephen Breyer and Samuel Alito.

Justice John Paul Stevens and Anthony Kennedy dissented, with Stevens saying he cannot see why Wood's lawyer did not investigate or present "powerful mitigating evidence of Wood's mental deficits for the penalty phase" of the trial.

Earlier coverage of the case is here.

There is news coverage of the Court's ruling in Presley v. Georgia, concerning the openness of jury selection.

"High Court Justices Underscore Importance of Open Criminal Trials," is the title of Tony Mauro's NLJ report. 

The U.S. Supreme Court on Tuesday strengthened the right to public criminal trials, ruling in a Georgia case that jury voir dire proceedings should be open to defendants and to the public.

In an unsigned 7-2 ruling in Presley v. Georgia (pdf), the high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there are not enough seats for the public.

"Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the Court majority stated. "The public has the right to be present whether or not any party has asserted the right."

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, asserting that the case should have been decided only after full briefing and oral argument. Thomas also wrote that the ruling "belittles the efforts of our judicial colleagues" who have to interpret conflicting precedents on the issue. Per curiam decisions like the one in Presley usually occur without any oral argument or briefing beyond the initial petition and response, and deal with relatively uncontroversial issues.

And:

Defendant Eric Presley was convicted by a Georgia jury on cocaine trafficking charges, but he challenged the trial judge's exclusion of the public -- Presley's uncle, specifically -- during voir dire of prospective jurors.

The judge, DeKalb County Superior Court Judge Linda Hunter, justified the exclusion by telling the man, who was the only person in the audience, that prospective jurors would be filling the seats, and "you can't sit on the same row with the jurors." Presley's lawyer objected, but the judge still excluded the man, stating, "We have very small courtrooms and the witnesses and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial."

A divided Georgia Supreme Court in March 2009 upheld the conviction, ruling that the judge had "an overriding interest" in protecting potential jurors from taint. It also ruled that the judge was not obliged to consider alternatives when none of the parties offered any.

Leah Ward Sears, then chief justice of Georgia, dissented, stating, "A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial." Carol Hunstein, the current chief justice, joined her dissent.

Adam Liptak writes, "Supreme Court Rules on Trial Conduct in Georgia," for the New York Times.

Joan Biskupik writes, "Supreme Court: Jury selection should be open," for USA Today.

Finally for today, SCOTUS Blog previews the case Berghuis v. Smith in "AEDPA and the Sixth Amendment’s 'Fair Cross-Section' Requirement."  It's written by James Bickford.

Today the Court will hear oral argument in Berghuis v. Smith, the latest in the line of cases tracing the limits of habeas corpus review under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.  AEDPA precludes federal habeas relief when a state court has adjudicated a federal claim on its merits, unless the state court ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  In Terry Williams v. Taylor (2000), the Court held that under AEDPA, federal habeas relief is available only when a state court’s application of federal law is objectively unreasonable, rather than merely incorrect.

At issue in this case is the intersection of AEDPA and the Court’s precedents governing jury selection.  In Taylor v. Louisiana (1975), the Court held that the Sixth Amendment guaranteed a jury drawn “from a representative cross section of the community.”  Four years later, in Duren v. Missouri (1979), the Court outlined a three-part test to determine whether a group has been unconstitutionally excluded from the jury pool:  the group must be (1) distinctive and (2) lacking “fair and reasonable representation” for reasons that are (3) caused by the system of jury selection.

Related posts are in the Supreme Court index.

The Case of Mumia Abu-Jamal

Today's Philadelphia Inquirer reports, "Ruling could be a small setback for Abu-Jamal."  It's written by Joseph A. Slobodzian.

The legal pendulum that for almost 30 years has kept convicted police killer Mumia Abu-Jamal between execution and life in prison swung slightly back toward lethal injection yesterday.

In a 51-word paragraph, the U.S. Supreme Court vacated a federal appeals court ruling that threw out Abu-Jamal's death sentence because of confusingly worded verdict instructions that arguably led the jury to a sentence of death over life in prison.

The high court returned the case of the convicted killer of Philadelphia Police Officer Daniel Faulkner to the U.S. Court of Appeals for the Third Circuit for a new hearing.

At issue: Is Abu-Jamal's case affected by the Supreme Court's Jan. 12 decision that the jury's death-penalty instructions did not bar executing Frank Spisak, a Cleveland neo-Nazi convicted of killing three men in 1982?

If the Third Circuit court finds Abu-Jamal's circumstances identical to Spisak's, the Philadelphia-based court could reinstate the death penalty for Abu-Jamal, a former radio journalist and cabbie convicted of the Dec. 9, 1981, shooting of Faulkner, 25, near 13th and Locust Streets in Center City.

Prosecutors do not expect that to happen any time soon.

"It's going to be years," said Hugh Burns, chief of appeals for the Philadelphia District Attorney's Office, who has handled the appellate litigation involving Abu-Jamal.

Burns called the Supreme Court's Spisak decision a "change in the legal landscape. Reading between the lines, they're telling the Third Circuit, 'You got this wrong, and here's how you can fix this.' . . . They're telling the Third Circuit to change this decision."

Abu-Jamal's attorney, Robert R. Bryan of San Francisco, insisted that the facts of the Spisak and Abu-Jamal cases were different: "If our cases are similar, of course it doesn't bode well. But they're different. It's always uphill with a death-penalty case."

The article has a summary of the long-running, controversial case.

Nebraska Legislator Advocates Abolition

"Senators to debate death penalty repeal," is the title of JoAnne Young's report in today's Lincoln Journal Star.

Senators are expected to take up a debate today on repealing the death penalty, but without the fanfare that has accompanied other recent debates.

The bill (LB306), introduced by Omaha Sen. Brenda Council, would change the penalty for a Class 1 felony to life without the possibility of parole.

The hearing on the bill was held during last year's session. It was sent out of the Judiciary Committee on a 6-1 vote, with Omaha Sen. Scott Lautenbaugh voting against advancing the bill and Sen. Mark Christensen of Imperial abstaining from voting.

The Legislature passed a bill last session by a 34-12 vote establishing lethal injection as the state's means of carrying out the death penalty.

Council said Tuesday there are important issues concerning the death penalty that weren't fully discussed last year during the lethal injection debate. That included the issue of the deterrent effect of the death penalty.

Studies show it does not deter people from killing, she said. And police chiefs put it at the bottom of the list of ways to reduce violent crime.

Senators have never received reliable costs of carrying out the death penalty in Nebraska, Council said, even though other states have been able to get that information.

And:

The Nebraska Department of Corrections has said the financial impact is not determinable, and the attorney general's office had estimated no fiscal impact in switching to lethal injection.

Jill Francke, statewide coordinator of Nebraskans Against the Death Penalty, said a few death penalty opponents will show up for debate today. They had been unsure until Tuesday when the debate would actually take place, she said.

It has been discouraging for opponents to see the state press forward with a new method after the electric chair was declared unconstitutional two years ago.

With lethal injection, she said, the state is digging itself into a trench of costly litigation and appeals that will go on for decades.

The state is facing an economic crisis and can't afford the cost of carrying out death sentences, she said.

A recent report by National Public Radio showed prosecutors sought the death penalty less often in 2009, and judges and juries handed down fewer death sentences.

The Nebraska Department of Correctional Services has developed a lethal injection protocol. Attorney General Jon Bruning said last May an execution would not be carried out for at least a year.

Eleven men sit on Nebraska's death row.

Paul Hammel writes "Death penalty debate begins," for the Omaha World-Herald.

Omaha state Sen. Brenda Council pledged this morning to continue to seek repeal of the death penalty as long as it's possible that an innocent person might be executed.

Council made the pledge as the Legislature opened a mostly symbolic debate on repealing the state's death penalty.

Council, who represents north Omaha, said capital punishment is 10 times more costly to prosecute and that the nation's police chiefs have ranked it "dead last" as a deterrent to crime.

Council's proposal, Legislative Bill 306, was introduced last year and held over for debate until now.

Last year, lawmakers affirmed their support for the death penalty by changing the means for carrying out executions to lethal injection rather than electrocution.

Only 12 senators, out of 49, opposed that change. Even opponents of the death penalty acknowledge that they don't have the votes to repeal capital punishment this year.

Digital Journal reports, "Nebraska Legislature set to take up repeal of death penalty," by Oliver VanDervoort.

In what is almost an annual affair these days, the Nebraska Legislature will begin debate within the next few days, on whether or not to do away with capital punishment.

State Senator Ernie Chambers made it a part of his life's work to try and get the Death Penalty taken off the table as a form of punishment the state of Nebraska used. And in 2007 he almost succeeded.

With the Nebraska Supreme Court ruling that the electric chair -- the means of execution used by Nebraska for decades -- constituted cruel and unusual punishment, the state was indeed without capital punishment for several months, and Senator Chambers wanted to make that move permanent. 

Senator Chambers had made this his primary initiative every year since 1976, the year the United States Supreme Court reinstated the death penalty. 2007 appeared to be the year the stars and planets aligned. Because of term limits, Senator Chambers was nearing the end of his decades long run as a state representative, many other more liberal leaning Senators were also seeing an end to their political careers, and the doing away with 'The Chair' made some representatives look to reevaluate whether they wanted to find another way to effectively kill people, be they murderers or not.

The Nebraska Legislature is different than any other state assembly in the country in that the state does not have two houses of congress. Instead there is just one house, made up of 49 state Senators. Because of this, the committee process is more important than in other states. For the first time since 1988, Senator Chambers' initiative was voted out of the Judiciary Committee, and moved to full debate on the Legislature floor.

After several days of spirited debate, the measure was defeated by a single vote, 25-24. Had the measure passed, it most likely would have eventually been defeated, Nebraska's Governor Dave Heineman is opposed to repealing the Death Penalty, and stated numerous times that he would have vetoed the bill had it come to his desk, and it's unlikely those in favor of the repeal would have gotten the required two-thirds majority needed for a veto override.

Senator Chambers is now out of the Legislature, but the attempts to do away with Capital Punishment is still alive and well. Senator Brenda Council, who somewhat coincidentally holds the seat that Senator Chambers has vacated reintroduced a repeal of the Death Penalty just last year.

The Omaha World-Herald has a brief item, "Death penalty on lawmakers' agenda."

Is an Eye for an Eye Justified?

That's the title of an editorial in Kansas' Pittsburg Morning Sun.  LINK  It's written for the paper by Matthew Clark.

Is an eye for an eye justified when the state is concerned?

On Tuesday, the Kansas Senate Judiciary Committee began three days of testimony regarding the state’s death penalty.

Opponents told the committee that the law is costly, flawed and should be repealed. Two law professors and the bishop of the Wichita Roman Catholic diocese said that “the state should use alternative forms of punishment that ensured justice.”

And:

We agree that ending another person’s life should never be done without apprehension. However, a society that cares more about the rights of those that do evil over those that are innocent and should live life without fear has lost its moral compass.

In order to have an effective system of justice, we believe that the penalty of death is necessary for the most heinous of crimes such as those against law enforcement officers and children as well as those same crimes that involve significant premeditation.

Earlier coverage from Kansas begins with the preceding post.

The Kansas Death Penalty Debate

Yesterday, the state's Senate Judiciary Committee began consideration of legislation to repeal the death penalty.  Testimony will continue, for an hour a day, this week.

"Kansas Senate again looks at abolishing state’s death penalty," is the title of David Klepper's report for today's Kansas City Star.

The Kansas Senate is again looking at abolishing the state’s death penalty, unused since 1965.

But some lawmakers said they did not expect a repeal any time soon. Even though debating the death penalty has become an almost annual tradition in the Senate, opponents to capital punishment still face long odds.

The proposal before lawmakers this year would prohibit capital punishment for any crimes after July 1; crimes committed before that could still warrant execution, so the 10 men now on death row could still be put to death.

The Senate Judiciary Committee has scheduled three days of hearings this week to hear from supporters and opponents of capital punishment.

On Tuesday, it was the opponents’ turn. Bishop Michael Jackels of the Catholic Diocese of Wichita told the panel of lawmakers that life without parole was a more humane alternative to a death sentence.

“Capital punishment should be used only if there are no other means to protect the common good,” he said.

“In today’s world — and especially in our country — there is no need to impose the death penalty.”

University of Colorado sociology professor Michael Radelet said there was little evidence that capital punishment deterred crime, and said the state would be better to spend its money catching criminals.

“If you really want to do something about crime and homicide in Kansas, do something about the 800 homicides that remain unsolved,” Radelet said.

The Topeka Capital-Journal has, "Death penalty hearings start," by Barbara Hollingsworth.

Death penalty opponents made the case Tuesday that executing inmates is a costly sentence that is often unfairly administered and losing traction nationally over such concerns.

The testimony came as the Senate Judiciary Committee began the first of three days of hearings to consider abolishing the death penalty in the future while maintaining death sentences for those already on death row. Both death penalty opponents and supporters are to be given equal time to speak this week.

"This issue is something that is very, very sensitive on both sides," said Sen. Tim Owens, R-Overland Park, the committee chairman.

His committee is considering two bills. One measure that would abolish the death penalty (SB 208) faltered under questioning last year. Since then, a new bill (SB 375) has been created by a committee of the Kansas Judicial Council.

The group drafted a bill that would allow the abolition of the death penalty while also maintaining death sentences for those already sentenced to death and those who commit crimes of capital murder before July 1. The group also recommended creating a new charge of "aggravated murder" that would carry a possible sentence of life imprisonment without the possibility of parole.

In testimony Tuesday, lawmakers were told that the death penalty has become so problematic that a leading attorneys' group, the American Law Institute, pulled the capital punishment provision from its model penal code. Jordan Steiker, who teaches death penalty law at the University of Texas, said the institute's model code had served as a blueprint for death penalty laws across the country, but problems prompted the change. He said capital punishment has become politicized and is tainted by racial discrimination. He said it is far more expensive than other prosecutions and even with increased costs often underfunds an adequate defense.

"Looking back over the last 35 years of an experiment with the model penal code provision I think there is no reason to be happy with how things have played out in the various states that have administered capital punishment," Steiker said.

Jeannine Koranda writes, "Penalty no deterrent, panel told," for the Wichita Eagle.

The committee on Tuesday kicked off a planned three days of hearings on the death penalty. It will hear from supporters of the death penalty today and Thursday.

Committee Chairman Sen. Tim Owens, R-Overland Park, said he did not know when the committee might vote on the matter.

Death penalty opponents contend the punishment is costly and does not deter crime.

"After a while, increases in the severity don't contribute to the deterrent effect of the penalty," said University of Colorado sociology professor Michael Radelet.

Money spent on death penalty cases would deter more crime if it was used to catch criminals and solve crimes, he said.

A 2003 state audit showed that costs in death penalty cases averaged $1.2 million, compared with $740,000 for other murder cases.

In the past, supporters have argued that the state's death penalty law is useful, is used sparingly and should not be judged based on cost.

The same committee spent several days last year listening to testimony on Senate Bill 208, which sought to abolish capital punishment for cases sentenced after July 1, 2009.

The bill moved out of committee but faltered on the Senate floor and was returned for more study.

The Kansas Judicial Council studied the issue and recommended a new bill, Senate Bill 375, which would create a new crime of aggravated murder to replace death penalty cases. Anyone convicted of the proposed new crime would face a mandatory life sentence.

Missouri's Joplin Globe reports, "Area Kansas legislators divided on elimination of capital punishment."  It's written by Roger McKinney.

Southeast Kansas legislators are divided on whether to repeal the death penalty in their state.

Testimony began this week in the Senate Judiciary Committee on a proposal to repeal capital punishment. Kansas enacted its death penalty law in 1994, but there have been no executions since it took effect.

State Rep. Julie Menghini, D-Pittsburg, and state Rep. Doug Gatewood, D-Columbus, favor current efforts at the Statehouse to abolish the death penalty.

“It’s very costly and filled with the possibility of mistakes,” Menghini said.

She noted that a number of death row inmates around the nation have been cleared by DNA evidence. The Death Penalty Information Center in Washington, D.C., reports that 139 death row inmates have been exonerated since 1973.

And:

State Sen. Bob Marshall, R-Fort Scott, remains a proponent of the death penalty and said he would vote against any effort to eliminate it.

He said that if death sentences were carried out in a timely fashion — the appeals in death penalty cases can take a decade or more — the penalty would serve as a deterrent.

“It makes me sound like a bad guy, but I think of it as a deterrent to a criminal committing murder,” Marshall said.

He also said he doesn’t accept the cost argument. A 2003 state audit showed that the average cost of a death penalty case was $1.2 million, compared with $740,000 for other murder cases. Supporters of capital punishment call the analysis flawed.

And:

Gatewood said a sentence of life without parole is consistent with his “pro-life” values, and that cost is a secondary issue.

“I oppose the death penalty,” Gatewood said. “I’ve always voted pro-life.”

He said he thinks the Legislature this session will consider any measures that could save the state money.
“The cost that is associated with the judicial process is considerably higher when you have the death penalty,” Gatewood said.

He said a life sentence with no chance for parole is possibly harsher than the death penalty. Gatewood also pointed out that many inmates have been exonerated using DNA.

State Rep. Bob Grant, D-Cherokee, said he voted to reinstate the death penalty in 1994 and probably will continue to support it. But he said the Legislature is correct to examine the matter.

“It has cost us a lot of money, and we’ve done nothing with it,” Grant said. “I’m going to have to sit down and take a hard look at it.”

House Judiciary Committee Chairman Lance Kinzer, R-Olathe, said he doesn’t see support in the House even if the Senate passes a repeal.

“My view is that the death penalty is an appropriate punishment for certain types of crime, and it’s beneficial to public safety in Kansas to have a death penalty statute on the books,” Kinzer said. “I think, frankly, that Kansas has a pretty good death penalty statute that has all of the necessary protections to make sure it’s implemented fairly.”

Earlier coverage from Kansas begins with this post.

The Autobiography of an Execution

That's the title of David Dow's latest book, being published next month by Twelve Publishers.

Diane Jennings post, "David Dow's death penalty book a compelling read for opponents and supporters," at the Dallas Morning News Crime blog.  Here's an extended excerpt:

I've never met David Dow, a University of Houston law professor who serves as litigation director for the Texas Defender Service. But I've known him as a voice on the phone for more than a decade, listening to him talk passionately about the death penalty in Texas. 

In February everyone will have a chance to know him through his intensely personal memoir, The Autobiography of an Execution.

Dow has written books about capital punishment before but his previous efforts were clinical. The Autobiography of an Execution, published by Twelve Books to be in bookstores next month, is startlingly revealing, offering insight how the legal system works, and into the personal toll it takes to represent the worst of the worst.

For instance, Dow writes about missing Halloween with his young son one year because an execution was delayed. How do you tell your son he missed going to the haunted house in his Thomas the Tank Engine costume because you were trying to stop a lethal injection?

He writes about the fact that people assume he likes his clients, when the truth is sometimes he can't stand them. He tells how when he leaves the prison he "can hardly wait to get in the shower and wash the death and deprivation off of me." He launders his clothes separately to keep his professional and personal life separate.

The book is written in an odd stream of consciousness narrative that works. "I understand death penalty supporters," he writes. "I used to be one. I can relate to the retributive impulse. I know people I want to kill. I've tried hard to save all my clients, but some executions don't make me cry...I have friends who quit doing this work because they couldn't keep the images from burrowing deep down into their consciousness and stealing all their joy."

Perhaps the greatest surprise is Dow's deft touch with words, a touch rarely found in legal briefs.

You can pre-order the book at Amazon, Barnes & Noble, Borders or your local independent bookstore.

On Saturday, February 27, Politics & Prose will host an author event in Washington DC; details here.  I'll post other author events as they become scheduled.

Earlier coverage of the book is here.; related items in the books index.

Shaken Baby Syndrome on Trial

"Shaken baby syndrome itself is put on trial in Fairfax court," is the title of Tom Jackman's report in today's Washington Post.

As a criminal trial in Fairfax County tries to determine who, or what, caused 4-month-old Noah Whitmer's brain hemorrhage, the debate over whether "shaken baby syndrome" exists has erupted into a national battle of the experts.

Most criminal trials focus on what the defendant did and didn't do. But in this case, the complicated matter of what's humanly possible is at center stage.

Already on the jury's plate:

Craig Futterman, a Fairfax pediatrician and president of the national Shaken Baby Alliance, testified that 50 Gs of force -- 50 times the force of gravity -- are required to shake an infant's brain and cause serious damage. Kirk L. Thibault, a biomechanical engineer from Philadelphia, responded for the defense that tests conducted with adult humans found that a very strong man could generate 20 Gs of force by shaking a crash-test dummy the size of a 6-month-old child.

Fairfax pediatrician William E. Hauda II said that Noah's bleeding brain was caused by rapid acceleration and deceleration and that there has "got to be rotation there to cause these injuries." But Georgetown University neurosurgeon Ronald H. Uscinski said brain scans showed that the infant's bleeding continued long after he had been hospitalized, when no trauma was occurring, and "this condition was not caused by shaking."

The trial of licensed day-care provider Trudy E. Muñoz Rueda, 45, recessed Thursday after four days of testimony. She is charged with felony child abuse and child endangerment and has already spent seven months in jail. The trial will resume Wednesday, and Muñoz Rueda is expected to testify that she never harmed Noah, as she told police on the day he collapsed in her arms.

But the next day, April 21, Muñoz allegedly told a Spanish-speaking social worker that "I imagine I shook him about three times, but I'm not sure." The defense claims the social worker misinterpreted the Spanish verb "sacudir," and that Munoz made the comment as she demonstrated holding Noah with one hand on his bottom and one hand on his back. That presumably would not generate enough force to inflict both a subdural hematoma on the brain and retinal hemorrhages in the eye, typically seen as indicators of shaken baby syndrome, the defense says.

Fairfax prosecutors anticipated the defense attack on the concept of shaken baby syndrome -- "There is no science," Uscinski testified -- and called its own phalanx of physicians.

Shaken Baby Syndrome is also an issue the controversial Texas case of Cathy Lynn Henderson, noted here.

The Death Penalty in Oklahoma

The Tulsa World reports, "Study: Death sentences reach record low."  It's written by Michael Overall and appeared in the paper's Saturday edition.

Continuing a long and precipitous decline in the number of death sentences, the trend has sparked hope among some death-penalty opponents that the practice might not have to be abolished formally.

Might it eventually fall into disuse, even if it remains officially on the books?

"Personally, I would say no," answered Jim Rowan, an Oklahoma City attorney and chairman of the Oklahoma Coalition to Abolish the Death Penalty. "There will have to be some legislative action."

The number of death sentences nationwide peaked at 328 in 1994. Since then, the number has plummeted more than 66 percent, with 106 death sentences handed down in 2009, according to the survey.

Oklahoma averaged nearly 11 death sentences a year during the 1990s but has averaged fewer than six a year since 2000.

Why the decline?

The laws of economics, Rowan explained. As costs go up, demand falls. He estimates that in prosecuting a homicide, the state of Oklahoma will spend three times more money seeking the death penalty than if it were asking for life in prison.

And:

"In Oklahoma, we have 10 people walking around who were sentenced to death and later exonerated," he said. "I don't think we want to trade an innocent life for efficiency."

With fewer people sentenced to death, executions have generally declined, as well. Nationwide, 52 people were put to death last year — roughly half the number seen a decade ago.

Oklahoma carried out three executions in 2009, the fourth-highest number for any state, behind Texas, Alabama and Ohio.

This year, the state has put to death one person.

Tulsa killer Julius Ricardo Young was executed Thursday in connection with the 1993 slayings of his ex-girlfriend's 20-year-old daughter and the daughter's 6-year-old son.

Meanwhile, 2009 saw nine death-row inmates — including two in Oklahoma — set free after courts overturned their convictions.

Sunday's Oklahoman reported, "Oklahoma legislators ready to debate newly filed state measures," by Michael McNutt and Julie Bisbee.

The state’s worst budget crisis in modern history is not getting in the way of legislators filing more than 2,200 bills for the session that begins next month.

In addition to struggling with revenue shortfalls, main issues this session will be efforts to change the state workers’ compensation system and the state’s public schools.

In addition to having about $1.3 billion less compared with last year, lawmakers first will have to deal with patching the current fiscal year budget. Revenues have come in about 25.6 percent below estimates since the fiscal year began July 1.

Lawmakers filed 2,235 bills by Thursday night’s deadline. They also have 1,051 bills carried over from last year that still may be considered. On top of those 3,286 bills, legislators this year filed 59 resolutions; 86 resolutions are still left over from last year.

Nearly 400 bills are set aside for appropriation measures to fund agencies and departments. Many other bills are so-called shell bills — they have a subject matter but no text. Those bills can be filled in with details later.

And:

Bills also seek to crack down on party bus companies by making it illegal for them to haul minors who were drinking or possessed alcohol, and to implement the first step of a four-year plan to repeal Oklahoma’s death penalty by forming a commission to review wrongful convictions.

Earlier coverage from Oklahoma begins with this post.

Notorious Connecticut Case Nears Trial Date

"Reliving Horror in a Test for the Death Penalty," by William Glaberson appears in today's New York Times.

More than two years later, the details still have the power to horrify.

In the middle of the night, two parolees break into a tidy clapboard house in the central Connecticut town of Cheshire. They club the father, a doctor, and tie him up.

One of them rapes and strangles the mother, the authorities say. The other molests one of the daughters, 11-year-old Michaela. The father breaks free and shouts for help. But the intruders have set a fire: The girls, Michaela and Hayley, 17, tied to their beds, die of smoke inhalation.

The triple murder on Sorghum Mill Drive — widely compared to the Kansas killings in Truman Capote’s “In Cold Blood” — has transfixed the state ever since. The suspects, both habitual criminals, were arrested a block from the house. The crime prompted a searching review of the state legal system that had freed them.

Now, jury selection in the first of their capital murder trials is set to begin Tuesday, though both defendants tried and failed to avoid trial by offering to plead guilty in exchange for sentences of life in prison.

But in Connecticut, this is more than a murder case. It is a raw test, not only of whether these men deserve execution, but also of public and political sentiment on capital punishment itself. It is a case so well known in the state, fraught with so much emotion, and with so much potential to shape the thinking about capital punishment here, that the selection of 12 jurors and eight alternates could take six months.

“All of the things that are about to play out in the Cheshire case will have a tremendous effect on the death-penalty debate in this state,” said State Representative Michael P. Lawlor, a Democrat from East Haven.

Mr. Lawlor helped lead a failed effort to repeal capital punishment in the state last year. It was an effort that showed, even before the first juror could be selected, the power of the Cheshire murders to roil debate.

Both houses of the General Assembly voted last spring to end capital punishment in future cases. But first, legislators heard a riveting plea from the father who survived that unimaginable night in July 2007, Dr. William A. Petit Jr.

“My family got the death penalty,” he testified in March, “and you want to give murderers life. That is not justice.”

The governor, M. Jodi Rell, a Republican who is stepping down, vetoed the bill to repeal. She cited just one case: the Cheshire killings.

In many ways, the struggle over the Connecticut death penalty mirrors the conversation that has played out nationally in recent years, with three states abandoning capital punishment: New York, New Jersey and New Mexico. But in Connecticut, for some, the death penalty has been seen through the lens of just one crime.

The fall election for legislators and the governor is quite likely to come just as the trial spews out gruesome new details that have been kept sealed. With a potentially crowded field of candidates for the State House, not all of whom have yet weighed in on the death penalty, and legislators who are now on record on capital punishment seeking re-election, voters could well have the Cheshire case on their minds as they head to the polls.

And:

The court here will put on display the elaborate machinery of capital cases. The questioning of Mr. Hayes’s potential jurors is sure to focus on the saturation coverage of the Cheshire case across the state and beyond. People magazine, for example, headlined its article, “Horror in the Night.”

The lead public defender, Thomas J. Ullmann, and the state’s attorney here, Michael Dearington, will spend months maneuvering over potential jurors’ views. Because of the intense press coverage, judges long ago barred participants from public statements, so neither lawyer would discuss strategy.

But other death-penalty lawyers said the jury selection would be a legal dance that is routine in death-penalty cases. Mr. Ullmann has already argued that the publicity has made it impossible for Mr. Hayes to get a fair trial now, suggesting that a death sentence would be unjust in an atmosphere of intense emotions.

The defense will draw out potential jurors’ attitudes to try to prove the depth of bias against Mr. Hayes, now a gaunt inmate who is on suicide watch. In response, Mr. Dearington will cajole panel members to say that no matter what incendiary facts they know of Mr. Hayes’s deeds, they can put aside their feelings and vote only on the evidence.

It is a familiar routine, said Stephen B. Bright, a death-penalty defense lawyer who teaches about capital punishment at Yale Law School. “Everyone knows it will be very difficult for jurors to put that out of their minds,” Mr. Bright said, “but for the system to work we pretend that they can.”

Earlier coverage from Connecticut begins with this post.

Race in the United States & the Death Penalty

"Shades of Prejudice," is the title of an OpEd in today's New York Times.  It's written by Shankar Vedantam, a journalist and Nieman Fellow at Harvard.

LAST week, the Senate majority leader, Harry Reid, found himself in trouble for once suggesting that Barack Obama had a political edge over other African-American candidates because he was “light-skinned” and had “no Negro dialect, unless he wanted to have one.” Mr. Reid was not expressing sadness but a gleeful opportunism that Americans were still judging one another by the color of their skin, rather than — as the Rev. Dr. Martin Luther King Jr., whose legacy we commemorated on Monday, dreamed — by the content of their character.

The Senate leader’s choice of words was flawed, but positing that black candidates who look “less black” have a leg up is hardly more controversial than saying wealthy people have an advantage in elections. Dozens of research studies have shown that skin tone and other racial features play powerful roles in who gets ahead and who does not. These factors regularly determine who gets hired, who gets convicted and who gets elected.

Consider: Lighter-skinned Latinos in the United States make $5,000 more on average than darker-skinned Latinos. The education test-score gap between light-skinned and dark-skinned African-Americans is nearly as large as the gap between whites and blacks.

The Harvard neuroscientist Allen Counter has found that in Arizona, California and Texas, hundreds of Mexican-American women have suffered mercury poisoning as a result of the use of skin-whitening creams. In India, where I was born, a best-selling line of women’s cosmetics called Fair and Lovely has recently been supplemented by a product aimed at men called Fair and Handsome.

This isn’t racism, per se: it’s colorism, an unconscious prejudice that isn’t focused on a single group like blacks so much as on blackness itself. Our brains, shaped by culture and history, create intricate caste hierarchies that privilege those who are physically and culturally whiter and punish those who are darker.

Colorism is an intraracial problem as well as an interracial problem. Racial minorities who are alert to white-black or white-brown issues often remain silent about a colorism that asks “how black” or “how brown” someone is within their own communities.

If colorism lives underground, its effects are very real. Darker-skinned African-American defendants are more than twice as likely to receive the death penalty as lighter-skinned African-American defendants for crimes of equivalent seriousness involving white victims. This was proven in rigorous, peer-reviewed research into hundreds of capital punishment-worthy cases by the Stanford psychologist Jennifer Eberhardt.

Take, for instance, two of Dr. Eberhadt’s murder cases, in Philadelphia, involving black defendants — one light-skinned, the other dark. The lighter-skinned defendant, Arthur Hawthorne, ransacked a drug store for money and narcotics. The pharmacist had complied with every demand, yet Mr. Hawthorne shot him when he was lying face down. Mr. Hawthorne was independently identified as the killer by multiple witnesses, a family member and an accomplice.

The darker-skinned defendant, Ernest Porter, pleaded not guilty to the murder of a beautician, a crime that he was linked to only through a circuitous chain of evidence. A central witness later said that prosecutors forced him to finger Mr. Porter even though he was sure that he was the wrong man. Two people who provided an alibi for Mr. Porter were mysteriously never called to testify. During his trial, Mr. Porter revealed that the police had even gotten his name wrong — his real name was Theodore Wilson — but the court stuck to the wrong name in the interest of convenience.

Both men were convicted. But the lighter-skinned Mr. Hawthorne was given a life sentence, while the dark-skinned Mr. Porter has spent more than a quarter-century on Pennsylvania’s death row.

Related posts are in the race index.