The StandDown Texas Project

Politics & Prose Book Event Canceled

Due to travel complications, tomorrow's author event for David Dow's Autobiography of an Execution at Politics & Prose has been canceled.  I will let you know when it is rescheduled.

David Dow at Politics & Prose Tomorrow

For friends and readers in the Washington, DC area, David Dow will have a reading and book signing at Politics & Prose -- one of the great independent, neighborhood bookstores in the nation -- Saturday afternoon.  It will be from 1:00 pm to 2:00 pm.  It's the last of his scheduled author events.

The details are here.

Litigation director of the Texas Defender Service, a professor at the University of Houston Law Center, and a staunch opponent of the death penalty, Dow has written a powerful account of capital punishment. His memoir offers an intimate look at all parties involved, from the overworked legal aid lawyers to their clients.

Politics & Prose is located at 5015 Connecticut Ave., NW in the District. 

I'm hoping that C-SPAN will tape the event for later broadcast on Book TV.  Politics & Prose makes its own audio recordings of the book events for sale.

If you cannot attend the reading, the helpful, friendly staff would be happy to get a copy signed for you for pickup or mailing.  Contact info is at the bottom of this page.

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

Eric Zorn on the Death Penalty in Illinois

The Chicago Tribune columnist has two recent posts on his Change of Subject blog.  Earlier today Zorn posted, "Birkett: Death penalty all fixed."

Joe Birkett interrupted me with a scornful, dismissive, "Oh, come on!"

Not bad! We were more than 90 minutes into an extraordinary debriefing session with the often prickly DuPage County state's attorney Wednesday morning, and this was the first and really only flare-up.

I'd expected more fireworks. Birkett invited a handful of journalists to join him in a conference room at the DuPage County Complex in Wheaton for a wide-open conversation about the Jeanine Nicarico case, a sad and sorry saga that's been a source of controversy for just over a quarter of a century.

It began when 10-year-old Jeanine was abducted from her home in unincorporated Naperville 27 years ago this week, sexually assaulted and slain. And it ended, for most practical purposes, when Brian Dugan pleaded guilty to the crime and, in November, was sentenced to die by a DuPage County jury.

To his credit, Birkett invited two relentless critics of how the DuPage County state's attorney's office handled this case — me and Sun-Times editorial writer Thomas Frisbie, co-author of "Victims of Justice," a 412-page book chronicling the missteps that put two innocent men on death row — to join in grilling him for more than two hours.

His purpose: to dissociate himself and the men and women who now work in his office and in law enforcement in DuPage with the "mistakes," as he characterized them, committed by their predecessors from 1983 into the mid-1990s.

And that's fair enough. Birkett played virtually no part in the repeated efforts to prosecute innocent men for Jeanine's murder. And were it not for misrepresentations and exaggerations of his role by his Democratic opponents when he has run for statewide office, Birkett said, "right now I'd be the attorney general or the governor."

Birkett said Wednesday that, in fact, he was an internal advocate for justice when he was the lead criminal prosecutor under Jim Ryan, one of his predecessors. When asked in 1994 to lead the third trial of Rolando Cruz, then on death row for Jeanine's murder, Birkett said he reviewed the already extensive record and came up with a list of 147 questions to which the state didn't have adequate answers.

And:

Birkett blamed the miscarriage of justice on human error, "tunnel vision" and a lack of procedural safeguards in criminal investigations. He would not go along with my insistence that bad faith — cynical efforts to cover up past mistakes — also played a huge role.

Either way, I said, the crux of opposition to the death penalty is that you can reform the system all you like, but you'll never get rid of human error — honest or otherwise — in the pursuit of justice, so a nightmare like this could happen again.

This prompted Birkett's scornful, dismissive interruption, followed by, "I'm telling you: You are wrong. You are wrong about that, Eric." He added, "The biggest problems with Cruz and Hernandez were the caliber of the attorneys who represented them initially, the lack of assistance that they had (and) the funding issues. Those are all issues that have been resolved."

So, he said, still bristling, "you are flat-out wrong that there's any likelihood that an innocent person will ever be executed. Ever. In this state, or, for that matter, in any other state."

A happily-ever-after ending, then, for death-penalty advocates.

But if not now, not here, not after all this, when will they ever learn?

There is much more in Zorn's Wednesday afternoon post, "Birkett: If it had been up to me, DuPage County would not have put Rolando Cruz on trial."

More on Rolando Cruz is at the Death Penalty Information Center's online report on innocence and exoerations.  Follow this LINK and scroll down to Item 58.

The Dynamics of a Jury

A high visibility Philadelphia death penalty case resulted in a life sentence."  Joseph Slobodzian reports, "Jury foreman explains Mustafa Ali sentence," in today's Philadelphia Inquirer.

To Mustafa Ali, convicted of two counts of first-degree murder for shooting and killing two armored-van guards as they worked on a Northeast Philadelphia ATM, the jury's sentence of life in prison instead of death by lethal injection was an act of mercy.

The grief-stricken families of slain Loomis guards William Widmaier and Joseph Alullo - former Philadelphia police officers who survived decades patrolling the city's streets only to be gunned down in their postretirement jobs - saw it as an infuriating, unbearable injustice.

But it was not, jury foreman Ross Chapman said yesterday, sympathy for Ali, his traumatic upbringing, or the two young sons he obviously loves and will never again see outside a prison visiting room.

"This was not sympathy. Not one of us felt bad for him," Chapman said of the decision reached Wednesday night by the seven women and four other men on the Common Pleas Court jury. "I will tell you that we shed a lot of tears in that [jury] room, but not one drop was shed for him."

He said the sentence was a product of the justice system and the deliberation process.

"I realize that people may misunderstand our decision," he said. "We did not forgive Mr. Ali. What he did was absolutely unforgivable, and we gave him the worst, most severe sentence we could give him based on the instructions given us from the judge."

Neither Assistant District Attorney Michael Barry nor Marc A. Bookman, leader of Ali's team of three public defenders, could be reached for comment.

Chapman, a professor of philosophy and logic at the Community College of Philadelphia, spoke out of what he said was a desire to help people understand how the system works.

And:

Last Friday the jury began hearing evidence before deciding whether Ali should be executed or spend life in prison without a chance of parole.

The prosecutor argued strongly for death. He said four legal factors justified execution: the double murders, their commission during a robbery, Ali's endangering of civilians during the shoot-out outside a busy Northeast intersection, and his conviction in federal court of five bank robberies in 1992.

Ali's public defenders presented an equally compelling case: testimony about Ali's abandonment by mother and father by age 2 and his early childhood deprivation, and a poignant video of Ali talking with sons Naqi, 9, and Taqi, 6, by telephone from the Curran-Fromhold Correctional Facility.

The video especially moved many in the crowded courtroom to tears.

But, according to Chapman, it did not persuade jurors to vote for life in prison over death.

The key to the sentence, he said, was in the verdict rendered a week earlier. By deciding that Alullo, not Ali, fired the bullet that hit the van, Chapman said, the jury could not find that Ali planned to kill the guards before robbing them.

The alternative? Ali, seeing Alullo go for his gun, started firing as his way of escaping a situation flying out of control.

"His options were to flee or surrender, and he decided to deal with the situation by killing them," Chapman said.

"If we had evidence that Mr. Ali planned to murder those guards, I don't think anybody on that jury would have hesitated to sentence him to death," Chapman said.

Related posts are in the jury index. Alan Berlow produced an excellent documentary on the topic of jury deliberation, "Deadly Decisions: How do jurors decide who should live and who should die?" in 2002.

Laurence Tribe to DoJ

Today's Washington Post reports, "Prominent Harvard law professor joins Justice Department," by Carrie Johnson .

Prominent Harvard law professor Laurence H. Tribe will join the Justice Department next week to lead an effort focused on increasing legal access for the poor, two federal sources said Thursday.

Tribe, 68, long viewed as a contender for a Supreme Court nomination in a Democratic administration, will serve as a senior counselor for access to justice.

Tribe, who has taught at Harvard since 1968, referred messages Thursday to a Justice Department spokeswoman. He will take a leave of absence from the law school.

The announcement comes a week after senior leaders at the department appeared at a Washington conference to draw attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants. Some juvenile offenders, for example, are forced to go to court without seeing a lawyer, officials said.

"Problems in our criminal justice system aren't just morally untenable," Attorney General Eric H. Holder Jr. told an audience at the Mayflower Hotel Feb. 18. "They're also economically unsustainable. . . . When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials and appeals."

The U.S. Supreme Court, in cases nearly a half century ago, ruled that defendants accused of felony crimes, serious misdemeanors and juvenile offenses must be provided with lawyers if they cannot afford to hire attorneys on their own. But funding shortfalls in many states, exacerbated by the current economic downturn, mean that public defenders often have 100 or more clients, according to Justice Denied, a report by the Constitution Project.

"The fundamental integrity of our justice system depends on equal access to justice and effective representation for all parties," department spokeswoman Tracy Schmaler said. "In fulfilling our responsibility to ensure fairness and integrity in our justice system, the department is launching an access-to-justice initiative to provide a centralized focus to elevate the importance of these issues and take concrete steps to address them."

In recent weeks, speculation within legal circles about Tribe's move to Washington had focused on a troubleshooting role that the law professor might play in hot-button areas, such as national security and international issues. But department officials Thursday said his portfolio would involve domestic affairs, and that he would report to Tom Perrelli, the associate attorney general and a Harvard Law School graduate.

Tribe supported Barack Obama's presidential aspirations and has called the president the most impressive student he taught in a career that spans four decades.

Tribe has served as lead counsel in 35 cases before the U.S. Supreme Court, testified before Congress dozens of times and wrote a major treatise on constitutional law.

Coverage of the DoJ's national symposium on indigent defense is here; related posts, in the indigent defense index.

Texas Death Row Ministry Highlighted on CNN

Jay Kernis reports the regular feature, "Intriguing people for February 26, 2010," on CNN.  One of those profiled is Michael Denson, founder of Catholic Death Row Ministry.

"Walking the last mile with death row inmates, Michael Denson lives in a state where 87 percent of the residents support the death penalty." So begins Michelle Bearden's remarkable portrait of Denson at the uscatholic.org Web site.

The Frisco, Texas, rancher founded the Catholic Death Row Ministry two decades ago, and today he finds himself spending less time with his cattle and more hours with inmates at maximum-security prisons.

He told Bearden, "The general attitude is 'Let's kill them, and let's kill them as quick as we can.' I don't judge others for holding that opinion, but it doesn't work for me."

More on Denson in the February issue of U.S. Catholic, "Walking the last mile with death row inmates," by Michelle Bearden.

"The general attitude is ‘Let's kill them, and let's kill them as quick as we can.' I don't judge others for holding that opinion, but it doesn't work for me," he says.
What works for Denson, 41, is a ministry whose 15 or so volunteers around the country write letters of support and make personal visits when requested by inmates in maximum-security prisons. So far, they've written or visited some 1,400 prisoners.

Even though he's got the blessing of the Catholic Diocese of Dallas, Denson knows this isn't the most popular outreach. When he founded the Catholic Death Row Ministry 21 years ago, he never expected that many like-minded people would share his passion for bringing hope to people who have destroyed hope for others. But he felt it was something he was called to do.

One correction, the latest University of Texas/Texas Tribune poll puts death penalty support in Texas at 78%; opposition at 18%.  Those numbers have been relatively static for some years.

IRS Should Stay Away From Exoneree Payments

That's the title of a Dallas Morning News editorial from the Wednesday edition.  LINK

The motive behind the Timothy Cole Act, passed overwhelmingly by the Legislature last year, could not have been clearer: to create a fair system of compensation for those wrongfully sent to prison. Named after a Texas Tech student who died in prison an innocent man, the law's goal was to make exonerees as financially whole as possible for the injustice committed against them.

The idea was never to turn injustice into a taxation opportunity for the IRS.

Exoneree John Michael Harvey is due $600,000 in compensation for the 12 years he spent in prison for a crime he didn't commit. Now the Internal Revenue Service is demanding its share, as if the compensation for Harvey's lost years were the payout for a winning lottery ticket.

According to the IRS, such compensation is taxable unless it is for pain and suffering caused "in connection with a physical injury or sickness." Without physical evidence of his pain and suffering, the IRS sees no reason to exempt Harvey's compensation.

A co-sponsor of the Timothy Cole Act, State Rep. Rafael Anchía of Dallas, says a relatively simple fix by Congress would stop the IRS from adding insult to injury. The best way, he says, is to revise federal tax code to state unequivocally that compensation for wrongful imprisonment is exempt from taxation. Another way is for federal tax law to define mental pain and suffering from wrongful imprisonment equal to the physical pain.

Related posts are in the exoneration and innocence indexes.

More on Cost in California

Today's Chico News & Review carries the editorial, "Death row’s high cost."

Here’s a way Gov. Arnold Schwarzenegger can save the state more than $1 billion over the next five years: Convert all 700 death sentences in California to permanent imprisonment.

The death-penalty system is clearly broken. For the past four years, executions have been on hold because of legal challenges to lethal injection. The courts are overburdened with death-penalty appeals, forcing other cases to wait years for hearing. The California Supreme Court spends almost one-third of its time on death-penalty cases. And, although California courts sent 29 people to death row last year, the state has executed only 13 people since 1967. That’s because it takes more than 25 years for a case to move through all the mandatory appeals—at tremendous taxpayer expense.

Then there is the growing evidence of the system’s fallibility. Last fall the American Law Institute—the brain trust of the legal community that created the intellectual framework for capital punishment—disavowed the structure it had created because, in effect, the capital-justice system was irretrievably broken and was a moral and practical failure.

And:

It costs an extra $63 million a year to operate death row. The inmates’ taxpayer-paid legal costs are astronomical. And now the state is preparing to spend $400 million to build a new, expanded death row. None of it makes sense, especially when the state is facing a $20 billion budget deficit. The governor has said he wants to cut prison spending. Here’s one good way to do it.

Earlier coverage from California begins here; more on the ALI action, here.

Will Nebraska Examine Death Penalty Costs?

"Senators hear testimony on bill to study death penalty costs," is the title of JoAnne Young's report in today's Lincoln Journal Star.

The question of whether the Nebraska Legislature should embark on a study of the costs of the death penalty was addressed Wednesday in the Judiciary Committee.

During a debate on repealing the death penalty earlier this session, Omaha Sen. Brenda Council introduced an amendment to direct state Auditor Mike Foley to find and report on the costs. She argued capital punishment is the most inefficient use of tax dollars in fighting crime.

A responsible audit would include costs to the attorney general's office, the Department of Correctional Services, counties in which trials occur, appeals courts and district courts, she said.

Council decided later in debate to kill the bill (LB306) and introduce the amendment as a standalone bill to study the costs of the death penalty.

At a hearing Wednesday, Council said the aim of the standalone bill (LB1105) would be to set aside emotion and get a handle on the financial costs. The Legislature and executive branch talk a lot about transparency and accountability in government, she said, but many seem willing to exempt the death penalty from those standards.

The bill should be amended to have a researcher do the study rather than Foley, she said. That would reduce the cost significantly.

It also should include a comparison between a death penalty case and one with a sentence of life without the possibility of parole, she indicated.

Jim Cunningham, with the Catholic Bishops of Nebraska, told the committee that learning the costs of capital punishment would be reasonable and legitimate. And, he said, it would help answer the question of whether having the death penalty is impeding progress on pursuing better ways to address violent crime.

Other issues the state should be looking at are more efficient law enforcement, solving cold cases, compensating crime victims and improving the corrections department, he said.

Earlier coverage from the Nebraska Legislature is here; Nebraska lethal injection coverage, here.

News Coverage of the Hood Ruling

The CCA's ruling in Ex Parte Hood, overturning Hood's Death Sentence, is in Adobe .pdf format.

"Death Penalty Is Thrown Out in Texas Murders," is the title of John Schwartz' report in today's New York Times.

A Texas court threw out the death sentence on Wednesday of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.

But the decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.

The prisoner, Charles D. Hood, was convicted in 1990 in the fatal shootings of Ronald Williamson and Tracie Lynn Wallace, a couple he lived with in Plano, Tex. Mr. Hood has denied committing the murders, though he was driving Mr. Williamson’s Cadillac when he was arrested.

For much of the nearly 20 years since a jury convicted him, Mr. Hood tried to prove that the judge who presided over the case, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., had an extramarital affair and that this constituted a conflict of interest. In 2008, Ms. Holland and Mr. O’Connell admitted the affair, which they said was short-lived and had ended three years before Mr. Hood’s trial.

Last September, the Court of Criminal Appeals, the highest criminal court in the state, rejected Mr. Hood’s request for a new trial, saying he had taken too long to raise the issue. Mr. Hood appealed the decision to the United States Supreme Court, with briefs supporting his position filed by dozens of former judges, prosecutors and legal ethics experts. The court has not yet acted on the request.

The new opinion, on a separate writ, focused on whether the jurors should have been able to fully consider issues like Mr. Hood’s learning disabilities, and the fact that he had been gravely injured at 3 years old when a truck backed over him, crushing his legs.

Such questions about jury instructions are an area of legal dispute that has bounced from state courts to the United States Supreme Court and back over the past 20 years. Chief Justice John G. Roberts Jr. has called the result “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

With the equivalent of a textual sigh, Judge Cathy Cochran wrote in the Texas court’s majority opinion that, “We wade once more into the murky waters” of jury instruction; and the majority ruled that Mr. Hood deserved a new hearing on the question of punishment.

Chuck Lindell writes, "Divided court tosses death sentence for Hood," for today's Austin American-Statesman.

In a case that has come to symbolize the tension between swift justice and the proper application of the death penalty, the state's highest criminal court Wednesday tossed out the death sentence for Charles Dean Hood but not because his trial judge and prosecutor were having an affair.

A bitterly divided Court of Criminal Appeals granted a new sentencing trial for Hood based on frequently shifting U.S. Supreme Court rulings on flawed jury instructions used prior to 1991.

The 5-4 decision did not affect Hood's 1990 conviction in the shooting death of two people in Plano. But in granting a new punishment phase trial, the court reversed its 2007 decision on a similar Hood appeal, prompting a sharply worded dissent that included a rare direct attack on one of the majority's judges.

Collin County prosecutors said Wednesday they were reviewing the Hood opinion but were likely to seek the death penalty again.

Hood's case became national news because he is fighting for a new trial based on the revelation — confirmed in 2008 after several years of digging by defense lawyers — that then-District Judge Verla Sue Holland had been having a secret affair with Thomas O'Connell Jr., the former Collin County district attorney who prosecuted Hood.

In a separate appeal now pending before the U.S. Supreme Court, Hood argues that it is unfair to be tried for any crime, let alone capital murder, in a court where the judge and chief prosecutor are romantically linked. The Texas Court of Criminal Appeals rejected that argument last year, ruling 6-3 that Hood's lawyers waited too long to raise the issue on appeal.

The case has attracted friend-of-the-court briefs from legal ethicists and former judges and prosecutors urging the high court to grant Hood a new trial in the interest of justice in death penalty cases, in which the punishment is irreversible.

And:

In its ruling Wednesday, the Texas court said Hood's jury received improper instructions over how to weigh mitigating evidence — such as learning disabilities or childhood abuse — that might have led jurors to choose a life sentence instead of capital punishment.

The opinion by Judge Cathy Cochran cited a string of U.S. Supreme Court decisions on the Texas jury instruction. But while the court ruled 5-4 to grant a new sentencing trial, the court ruled 4-4 on accepting Cochran's reasons for tossing out Hood's conviction. The split decision means Cochran's rationale cannot serve as precedent in future rulings about the pre-1991 jury instruction.

"Death row inmate gets new punishment hearing," is Diane Jennings' Dallas Morning News report.

The romance between now-retired Judge Verla Sue Holland and then-District Attorney Tom O'Connell had been rumored for years. But proof was elusive until 2008, when Holland and O'Connell revealed in affidavits that they had a sexual relationship before the trial and a close friendship after the romance ended.

Defense attorneys have tried repeatedly to get the Court of Criminal Appeals to address the issue, but the court has declined on procedural grounds, saying Hood waited too long to raise the issue. Instead the court agreed to re-examine the question of improper jury instructions.

In December, defense attorneys filed a petition in December asking the U.S. Supreme Court to decide whether the intimate relationship between the judge and the prosecutor violated Hood's right to due process.

Last week, dozens of legal ethicists and prominent lawyers – including former Gov. Mark White and former FBI director and federal Judge Williams Sessions – asked the court to take the case.

Prosecutors declined to comment on the petition to the Supreme Court. Their response to the court is due next month.

The Fort Worth Star-Telegram carries the AP report, "Court throws out death penalty for Texas man," by Michael Graczyk.

Three of the nine judges dissented from Wednesday's majority ruling, where the court said it was wading "once more into the murky waters" of the Texas death penalty sentencing rules, where capital trial jurors are asked questions to decide whether a convicted killer should be put to death.

Hood was convicted in 1990, after the first of several precedent-setting Texas death penalty cases at the U.S. Supreme Court began refining those jury instructions but before the Texas Legislature could rewrite laws to bring instructions into high court compliance. In the interim, trial judges submitted deliberation questions, known as "special issues," to capital murder juries. Many of those death penalty sentences have since been thrown out on appeal.

And:

"This is all very awkward," Judge Cathy Cochran, writing for the majority, said. "Not only have the nine justices on the Supreme Court differed wildly in their view ... the nine judges on this court have differed in exactly the same manner."

Specifically in Hood's case, the court said the "nullification instruction" given to his jury wasn't sufficient for jurors to give "meaningful consideration and full effect to the mitigating evidence presented." That instruction, which the Supreme Court later would reject as confusing, told a jury to answer "no" to one of two special issues if it found mitigating evidence that warranted sparing a defendant's life.

At his trial, Hood's lawyers presented evidence of life-changing injuries Hood suffered as a 3-year-old when a truck backed over him. They also said he had been beaten as a child.

Appeals Court Judge Michael Keasler, joined by two colleagues in a dissent, wrote Hood's claim was late and improper.

"This is exactly the kind of behavior that the Legislature specifically sought to prohibit," Keasler said. "No 'conundrum' exists for Hood because he is simply not entitled to relief in any forum."

The Plano Star-Courier today carries, "Hood granted new punishment hearing."

In 2005, Hood challenged the instruction used in his case just prior to a scheduled execution. The Court of Criminal Appeals dismissed his challenge in early 2007, ruling that he was required to raise the claim in an earlier challenge to his conviction and sentence. Today, the court reconsidered its 2007 decision, determined that Hood was not required to raise the claim in an earlier challenge, and awarded him a new punishment trial.

The Independent has, "Death penalty thrown out over sex scandal," written by David Usborne, a follow-up on a report in yesterday's edition of the British newspaper, noted in this post.

The Court of Appeals in September ruled it did not see any reason to rescind the death sentence on Hood in spite of sworn admissions from both parties as to their secret liaisons and their failure to alert the defence to the fact at the time of the trial. It said Hood had taken too long to raise the matter.

That decision, however, caught the attention of legal experts countrywide. Last week a group of prominent former lawyers, judges and politicians, including a former FBI director and a former governor of Texas, petitioned the US Supreme Court to intervene in the case, arguing that the trial had evidently been tainted by its romance-novel subplot.

In its new finding, the appeals court oddly made no mention of the romantic entanglements of Judge Verla Sue Holland and the prosecutor, Thomas O'Connell. It was ordering a new hearing, it said only, because the jurors at the trial were given insufficient opportunity to consider an alternative punishment to the death sentence and cited the defendant's harsh childhood.

It seemed highly probable, however, that the growing furore over the inappropriate intimacies of the most important players at the trial – aside from the defendant himself – played some part in yesterday's reversal by the court. The Independent has been among newspapers to report on the controversy.

The flawed jury instruction is known as a Penry claim and relief is limited to the punishment phase of a capital murder trial.  The original post-Furman Texas jury charge for capital cases was ruled unconstitutional in 1989 in the case of Penry v. Lynaugh.  The Supreme Court determined in that case that juries were not allowed to fully consider mitigating circumstances. The jury charge was subsequently re-written by Texas lawmakers.

Andrew Cohen on the Hood Ruling

Andrew Cohen has expressed his outrage over the Hood case previously.  His latest comentary on the CCA ruling is, "The State of Texas: Third World Justice," posted at the Atlantic Correspondents blog.

It's been another extraordinarily bad stretch of days for those dwindling few lawyers, judges and politicians who stand ready still to publicly defend Texas's unjust, unkempt, and often unconscionable criminal justice system.

Things are so bad in the Lonsestar State, in fact, that the same officials who doggedly continue to believe "Texas Justice" is anything but an oxymoron-- those who would rather pester their colleagues in Congress for a change in the BCS college football rankings-- perhaps better start preparing for Congressional hearings or even a visit from investigators working for the International Committee of the Red Cross. Third-world justice in America, we all ought to agree, deserves a first-rate response.

First, there is the matter of Texas Court of Criminal Appeals Presiding Judge Sharon Keller.  Known as "Killer Keller" to defense attorneys around the country, her cold-hearted abdication of her responsibilities as a jurist in the capital case of Michael Richard has earned her international scorn. She is the judge who left court early one day to meet her repairman knowing that a last-minute appeal was on its way on behalf of Richard. With the court improperly closed, the appeal (on a live issue involving lethal injections) was never heard and Richard was executed. Last week, special state prosecutors pushed again for sanctions or some other punishment for Keller after getting nowhere in an earlier proceeding before one of Keller's judicial colleagues and cronies.

And:

Then, last Thursday, attorneys for Charles Dean Hood were forced to file a petition seeking the intervention of the United States Supreme Court to grant a new trial to a capital defendant whose judge and prosecutors had been secret lovers before his trial. Although a factual review of the circumstances confirmed the relationship, and the fact that neither the judge nor the prosecutor disclosed it to Hood or his attorneys, the state still refuses to order a new trial on the merits. Hood, however, did get some good news this week. On Tuesday, his sentencing hearing was deemed so patently unfair that even the Texas Court of Criminal Appeals overturned it and ordered a new proceeding.

Judges who leave court early for the day without protecting the last-ditch rights of condemned men. Judges who have secret affairs with prosecutors and then don't disclose them to the litigants before them. Prosecutors and judges who continue to fight against DNA testing even when it's the simplest route to the truth of a case. A prison system that tolerates and then covers-up widespread rape of young prisoners. Never mind all this earnest talk of seccession. In many ways, the Texas justice system, unrecognizable and unrepentant, already has left the Union.

Earlier coverage begins with the preceding post; all coverage, available through the Charles Dean Hood index.

Texas Defender Service on the Hood Ruling

Andrea Keilen, the Executive Director of Texas Defender Service, issued the following statement on the CCA's ruling in Ex Parte Hood, overturning Hood's Death Sentence.

"While today’s decision recognized a clear flaw in the punishment phase of Mr. Hood’s case, it should not distract the courts or the public from the more troubling issue at the center of this case: that the judge and prosecutor admitted under oath that they had a long-term, intimate sexual relationship prior to Mr. Hood’s trial, and that they intentionally kept this affair hidden for 20 years.  We, and dozens of legal ethicists and former judges and prosecutors, including former Texas Governor Mark White, former FBI Director William Sessions, and former Texas prosecutor Sam Millsap, are urging the U.S. Supreme Court to repair the damage the affair has caused and restore integrity to the Texas criminal justice system.  This case requires Supreme Court intervention because the Texas Court of Criminal Appeals to date has ignored this obvious and outrageous constitutional violation.  Mr. Hood is entitled to an entirely new trial before an impartial judge and prosecutor.  Today’s decision granting him a new punishment phase hearing does nothing to address or correct this egregious legal and ethical violation."

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

Fourth World Congress Against the Death Penalty Meets in Geneva

"Death penalty opponents see executions on the wane," is the Reuters report written by Jonathan Lynn and edited by Noah Barkin.

An increasing number of countries are abolishing the death penalty and even the most active users of capital punishment are taking steps to restrict it, a congress of abolitionists heard on Wednesday.

The three-day World Congress Against the Death Penalty hopes to give momentum to a trend that has seen roughly 4 countries a year, especially in Africa and Central Asia, join the ranks of abolitionists in recent decades.

"There is a new trend against the death penalty that is something new for the world," said Mario Marazziti, spokesman for the Community of Sant'Egidio, an Italian advocacy group that is one of the driving forces in the global campaign to stop the death penalty.

The congress is backed by the Swiss government and draws strong support from Italy and Spain -- reflecting the fact that Europe is now almost entirely free of executions.

The campaign was given support by a non-binding United Nations resolution in 2007 calling on countries who use the death penalty to introduce a moratorium and arguing that capital punishment undermined human dignity and was not a deterrent.

Marazziti told a briefing that 56 countries continued to execute people, while 141 countries did not use the death penalty, including 93 that had formally abolished it altogether.

Since 2007 the African states of Rwanda and Burundi have abolished the death penalty, joining Cambodia to show that even countries that have suffered genocide can drop it.

AFP reports, "Europeans step up pressure for global halt to death penalty," via the Sydney Morning Herald.

European countries on Wednesday stepped up pressure for a global halt to the death penalty, as opponents of capital punishment hailed the growing number of countries scrapping or suspending executions.

The United Nations and participants in the World Congress Against the Death Penalty in Geneva said about 140 countries had now abolished death sentences or stopped carrying them out.

"More than two-thirds of the United Nations member states abolished the death penalty, by law or in practice," Prime Minister Jose Luis Zapatero of Spain, which holds the presidency of the European Union, told the congress.

Two decades ago the list included about 50 countries.

"The balance has tipped and the speed has been extraordinary, we have seen a grand global change," said Norwegian Deputy Foreign Minister Gry Larsen.

But concern was focused on the countries that account for about 93 percent of executions between them, according to Amnesty International -- China, Iran, Saudi Arabia, Pakistan and the United States -- as well as North Korea.

Zapatero said Spain would set up an international commission made up of eminent people later this year to press for a global moratorium on the death penalty by 2015, "as a preliminary step to total abolition."

The United Nations News Centre has distributed, "Senior UN official cites evidence of growing support for abolishing death penalty."

There is evidence of growing global support for the eventual elimination of the death penalty, a senior United Nations official stated today, while acknowledging that abolishing this practice is a difficult and sensitive process for many societies.

Sergei A. Ordzhonikidze, Director-General of the UN Office at Geneva, told the Fourth World Congress against the Death Penalty, held at the Palais des Nations, that moving this process forward will require comprehensive and inclusive national debates.

“It is my hope that the discussions at this World Congress, which will highlight the practical experiences of countries that have either abolished the death penalty or instituted a moratorium, can help to stimulate such national debates.”

And:

Some 2,000 participants, including national political leaders, activists and representatives of international organizations, have gathered in Geneva for the three-day Congress.

"The death penalty: A question of human rights," is the title of the Deutsche Welle report by Andreas Zumach and Jan Bruck, edited by Robert Mudge.

For 200 years now the international movement for the universal abolition of the death penalty has been spearheaded by Italy. With the start of the congress, Laura Mirachian, Italian Ambassador to the United Nations, underlined the special role of her country in the fight against the death penalty. "We have a long tradition of rejecting the death penalty. This is deeply rooted in our culture,” she told Deutsche Welle. “It goes back as far as the 18th century. Tuscany was the first state to abolish the death penalty in 1786 during the war.”

However, it took the modern Italy until 1948 to actually abolish it. In the same year, the “Universal Declaration of Human Rights” adopted by the UN General Assembly laid the legal groundwork for the fight against the death penalty. Although the abolition is not explicitly mentioned, Article 3 guarantees the right to life free from inhumane or humiliating punishment.

Yet, in the first 20 years of the declaration, only the newly founded Federal Republic of Germany rejected the death penalty in 1949. Not until the Covenant on Civil and Political Rights in 1966 did the UN ask its member states to abolish the death penalty or at least restrict it to very serious crimes.

This was a first, albeit only a perfunctionary breakthrough. Until then the death penalty was the unchallenged international norm, says Mario Morazzitti, speaker of the Italian religious group Sankt Egidio. “Until the 1970s only 23 nations abolished the death penalty.” But since 1980 Morazzitti identifies among the 192 member states a clear trend away from the death penalty. “During the last 30 years, there has been a dramatic shift. Europe became the first continent in the world where there was no death penalty.”

And:

Over 140 states have in the meantime stopped imposing the death penalty. The majority of them have abolished it by law for all crimes without exception not only in times of peace but also during war. However, 56 states and territories still hold on to the death penalty. Last year, China, Iran, Saudi Arabia, North Korea and the US carried out the most death penalties in the world.

Activists at the 4th world congress in Geneva hope to achieve a moratorium on the imposition and execution of the death penalty in those 56 states and territories and push them further toward complete abolition. This goal is to be reinforced by a new resolution in the General Assembly later this year. Activists hope that this time the majority for the resolution will be bigger than in 2007 and that the US and China will not vote against it but abstain from their vote.

At truthout, Mary Susan Littlepage posts, "4th World Congress Seeks to Abolish Death Penalty."

More than 1,000 people are expected to attend the 4th World Congress Against the Death Penalty February 24-26 in Geneva. The Congress is organized by the French NGO Ensemple in partnership with the Swiss Confederation and the World Coalition Against the Death Penalty.

During the 3rd World Congress Against the Death Penalty, held in Paris in 2007, Micheline Calmy-Rey, federal councillor and head of the Federal Department of Foreign Affairs of Switzerland, invited the event's organizer to hold this year's Congress in Geneva. Abolition of capital punishment is a foreign policy priority in Switzerland, and Switzerland is co-funding half of the Congress's budget.

Arnaud Gaillard, coordinator of the 4th World Congress, said the conference wants to welcome different countries and aims to build strategies to help them abolish the death penalty.

The World Coalition Against the Death Penalty was created in Rome in 2002. It's composed of 104 bar associations, cities, local groups, unions and the like. It is actively supported by the European Union, and it aims to strengthen the international dimension of the fight against the death penalty.

And:

The conference will feature two plenary sessions, ten roundtables and nine workshops. A cultural program aimed at the general public will also be organized in parallel at the International Conference Centre in Geneva and within the city,, which is the world capital of human rights and home to a number of international organizations.

The World Congress Against the Death Penalty is a triennial opportunity to bring together abolitionist groups and strengthen the international dimension of the fight against the death penalty. More specifically, the Fourth Congress will pursue the following goals:

• To strengthen ties between civil society, international and intergovernmental institutions and organizations as well as national and local entities in support of the abolitionist movement.
• To involve players of retentionist states, which are territories that retain the death penalty for ordinary crimes, from so-called Southern regions in the defining and leading of abolitionist strategies.
• To increase the political, diplomatic, religious, social and cultural impact on retentionist states.
• To enlarge the World Coalition Against the Death Penalty and to encourage the building of national and regional coalitions.

Public Opinion Polling, Politics, and the Republican Primary Contest for Governor

The Texas Tribune has two recent posts of interest.  First, "The Polling Center: Voter Empathy," by Jim Henson.

"You've been in my life so long, I can't remember anything else," the beleaguered Ellen Ripley says wearily to one of the salivating creatures with whom she's realized a perversely intimate relationship (if you don't know, don't ask) in a scene in the third "Alien" movie. The Republican gubernatorial primary, now mere days away from a result, begins to feel like that.

It's been a long grind. Both publicly and privately, at first a lot of observers thought Perry unlikely to succeed in winning an unprecedented third gubernatorial election. Whether he crosses the 50% threshold or is forced into a run-off when the polls close next Tuesday, the results of the last UT/Texas Tribune Poll suggest that Rick Perry's synchronous orbit over a big chunk of the Republican primary electorate has helped him prove those observers, not to mention KBH boosters and donors, very wrong. The insiders may have thought the Senator was, as the well-traveled meme went, the most popular politician in Texas. Turns out Perry knew his target audience better than the Senator — and better than her supporters in the Republican donor pool, too.

From the early days of the race, many political insiders missed Perry's resonance with primary voters.

And, here is the detail:

Even potential areas of Perry vulnerability during the last year have come in areas where possible weaknesses turned out to be not only harmless, but perhaps even strengths. A significant Perry stumble in an earlier phase of the primary campaign — the handling of the Cameron Todd Willingham case and the machinations related to the Texas Forensics Science Commission — occurred in the safe territory of strong support for the death penalty. Our survey found, unsurprisingly, a huge wellspring of support for the death penalty: 53% of our overall sample strongly support it and 25% somewhat support it. Only 18% said they opposed it the death penalty to any degree. Ninety percent of Republican primary voters supported it.

More strikingly, this support for the death penalty is supplemented by an apparently widespread belief among Republican primary voters that the death penalty is administered fairly in Texas. When asked, "Generally speaking, do you believe the death penalty is applied fairly or unfairly in Texas today," 83% of Republican primary voters responded "fairly," with only 7% responding "unfairly." This unified public opinion about the legal process surrounding the death penalty very likely helped insulate Perry from any state-level consequences of the national criticism he received for his seemingly unshakable faith in a demonstrably shaky process and helped protect him from the Hutchison campaign's half-hearted attempts to charge him with cronyism while stepping softly around the specific issue of the Forensics Commission.

To many, situations like the Willingham affair bespeak a range of factors — a hapless Hutchison campaign, a feckless electorate, a continuing run of luck (to his most vituperative detractors, dumb luck) on Perry's part. There will be plenty of time to weigh all these things, because, much as many of us can't seem to recall life without the 2010 election, it's far from over: the primary voting is not done, there could be a run off, and there's a long hot summer of pivoting toward the November election. Some things seem clear right now, though: in a political season marked by politicians scrambling to connect with an unsettled, angry electorate, Rick Perry has not alienated his base; and when it comes to campaigns, as we are likely to witness in the November sequel, he can be quite the predator.

Emily Ramshaw writes, "The Buck Stops Where?" for today's Tribune.

The attack ad could write itself: On Gov. Rick Perry’s watch, Texas weathered a sexual abuse scandal at the Texas Youth Commission, fight clubs at state institutions for the disabled and deaths of kids monitored by Child Protective Services.

But three of the biggest messes of Perry’s 10-year tenure — two of which spurred U.S. Justice Department investigations — have been noticeably absent on the campaign trail. While U.S. Sen. Kay Bailey Hutchison, Perry’s chief Republican primary opponent, has hit the airwaves on toll roads, immigration and education, she has largely steered clear of these high-profile social services debacles.  

And:

The one big social issue Hutchison has homed in on is Perry’s support for mandatory HPV vaccines for adolescent girls, but that issue is far more politically charged than the TYC or the state schools. Hutchison was silent on the Cameron Todd Willingham death penalty case, which looked to some like a high-profile fumble for Perry but would have jeopardized Hutchison’s already fragile relationship with Texas voters, who overwhelming favor the death penalty.

Recent Tribune polling on the death penalty is here; related posts, in the public opinion polling index.

The Independent Looks at the Hood Case

The Independent, a British broadsheet, reports, "The death row prisoner, the judge who sentenced him, and the prosecutor who was having sex with her," in today's issue.  It's written by David Usborne.

They are tough in Texas and perhaps it is not surprising there has been little sympathy for the whining of Charles Dean Hood about the odd "daytime soap" circumstances of his conviction back in 1990 for double murder. He is on death row in a US state that has no peer in its enthusiasm for executing prisoners.

The condemned and their lawyers will always look for ammunition at least to delay the moment of final dispatch. But Hood and his defence team have something slightly unusual to say and, even though the highest appeals court in the Lone Star State has still declared itself unimpressed, a remarkable array of the great and the good of the legal world are now pleading with the US Supreme Court to intervene.

The controversy is now garnering wider attention not least because it rests on a tale of illicit sexual trysts between the judge who presided over Hood's trial and sentenced him to death and the prosecutor who argued the case for conviction.

It is the stuff if not of a television soap, then certainly a bad romance novel. Both were married and both kept their affair a secret before, during and for many years after the trial.

There is keen interest also because it is Texas that once more finds itself under scrutiny for the alleged mishandling of a capital case. It risks becoming as infamous as the "sleeping lawyer" trial of Calvin Burdine whose death penalty was overturned 10 years ago because of the failure of his court-appointed lawyer to stay awake during the proceedings. But here "sleeping lawyer" has a different connotation.

Most importantly, in the eye of some legal experts, is the fact that the shenanigans of prosecutor and judge were kept secret from Hood's defence team. The judge, Verla Sue Holland, has since said she would have withdrawn from the case had she been asked to by the defence. But they didn't know to ask.

And:

Another loud critic of the handling of Hood's case is David Dow, whose work defending no fewer than 100 death penalty defendants over the years for the Texas Defenders Service, is outlined in his just published book, Autobiography of Execution. Once a supporter of capital punishment, Dow uses his widely reviewed new work to deliver a harsh indictment of capital punishment in Texas.

But now the affair, not a moment too soon perhaps, has reached the national stage.

In the wake of a request by Hood's defence team to the United States Supreme Court to overturn the Texas decision, a collection of no fewer than 21 former prosecutors, judges and politicians have filed a so-called "amicus" brief in support of Hood. Joining them in the unusual action were 30 of America's leading legal ethicists.

Earlier coverage of the Hood case begins with the preceding post; all coverage, available through the Charles Dean Hood index.  More on David Dow's The Autobiography of an Execution, here.

Blog Buzz Over the Hood Case

Adam Liptak's Sidebar column on the Hood case struck a nerve in the blogosphere. 

Michael Landauer posts, "Charles Dean Hood case a dark mark on Collin County justice," at the Dallas Morning News Death Penalty blog.

Bill Baumbach, a blogger in Collin County, has a great post with all sorts of links about the Charles Dean Hood case. You remember, the one where the judge was sleeping with the prosecutor, but no one seems to think that's a problem.

Bill's take:

The O'Connell/Holland 'affair' was no small lapse in morals. The affair itself was merely tawdry, but the lies and deceit that followed were serious violations of ethics and cast grave doubt on the ability of the Collin County Criminal Justice system to actually dispense justice.

Their affair casts doubt, not only on the conviction of Charles Dean Hood, but on unnumbered defendants. Our justice system was badly wounded by these two. Our taxpayers may face a huge financial liability. And there may be innocent people condemned by a process that was, by definition, unfair.

I have been outraged since this story came to light. My outrage is not solely directed at the illicit lovers but at the entire Collin County Bar, and the Judges and the Prosecutors who knew or strongly suspected that there was this unethical relationship between a judge and DA but stood by in silence as defendant after defendant was condemned by this duo.

At the Texas Tribune Morgan Smith posts, "Judges Gone Wild."

The New York Times seems intent on fast-tracking the Texas judiciary’s anointment as the national poster child for judges behaving badly. A Supreme Court appeal has breathed new life into a two-decade old scandal (this one with details a little less banal than a judge’s strict adherence to closing time) and inspired Adam Liptak’s latest legal column.

That would be the “sad and tawdry” affair, reported on by Texas Monthly in 2008, between the judge and the prosecutor in a 1990 death penalty case, where Charles Dean Hood was sentenced to death. The prosecutor, Thomas S. O’Connell Jr., was a man who “never stayed the night” and once gave his judicial paramour a chafing dish as a gift. The judge, Verla Sue Holland, went on to the Court of Criminal Appeals, where she served from 1996 to 2001.

Richard Connelly posts, "Quote Of The Day, From The Judge Who Had An Affair With A Prosecutor," at the Houston Press.

Back in our cub-reporting days, we knew both Judge Verla Sue Holland and prosecutor Tom O'Connell, both Collin County officials, and let us stipulate for the record that we could never, ever imagine them having sex with each other. But apparently they did.

The Texas Court of Criminal Appeals rejected Hood's plea last year; now he's asking the U.S. Supreme Court to rule. And a bunch of court documents have been filed in that case. The New York Times takes a look at it today and goes completely straight-faced and understated with the quote of the day, if not the year.

It comes from Holland's deposition

In her deposition, Judge Holland said she had lately become angry with Mr. Hood's lawyers for "annihilating my reputation." She said she had asked the attorney general's office to represent her in Mr. Hood's challenge to her conduct because she thought she needed to fight back. She was "tired of laying over," she said, and "getting licked without any input."

Tired of "getting licked without any input"? Most dames complain about the opposite!! HEY-O!!!!!

Above the Law's David Lat posts, "If the judge used to sleep with the prosecutor, is recusal required?"

We previously named Verna Sue Holland, a retired judge from Texas, an Ex-Judge of the Day. Now the ex-judge — or should that be “sex judge” — is back in the news.

Writes Adam Liptak, in the New York Times:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Sounds like a conflict of interest that would justify overturning the conviction, right?

Not so fast. Not in Texas.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

Question presented: whether a conflict of interest arising out of an affair between a judge and a prosecutor is vitiated if the affair was lousy.

When Gawker picks up a Texas death penalty case, it's a sure sign that dark matter is coalescing in the universe.  The post is, "Prosecutors and Judges May Bone One Another in Texas, No Problem."

The Texas Court of Appeals ruled that a condemned man's execution should go forward even though the judge in his case was sleeping with the prosecutor. And the judge in question has an unintentionally comical rebuke, for her detractors!

Judge Verla Sue Holland has had just about enough of this Death Row inmate, Charles Hood, "assassinating [her] reputation" (he's now appealing to the Supreme Court) just because she sentenced him to death after boning the man prosecuting his case. "She was 'tired of laying over,' she said, and 'getting licked without any input.'" Judge Verla Sue Holland demands input prior to being licked! Go, Texas!

The Seminal at FireDogLake has, "Can Lawyers Adequately Police Themselves?" by: Bill Egnor.  It's a must-read:

“Quis custodiet ipsos custodes?” Commonly translated as “Who watches the watchmen?” is the heart of the problem we face with in this country in regards to the rule of law. The law, in theory, is supposed to be about balance. This is why our version of Lady Justice is portrayed with scales and a blindfold. The concept is that Justice does not notice who you are, it merely judges the balance between claims.

For this to work, we must have judges and lawyers that adhere to the ideal of legal ethics. Ethics in the law can be summed up in in terms of loyalty; loyalty to the client, loyalty to the law and loyalty to the profession. This is very important as our system of law and justice has at its core the adversarial system.

This system is based on the idea that two advocates, arguing the facts before an impartial judge and or jury will be more likely to arrive at the truth of the matter than any other method. Given this zero sum game (one side wins, one side looses) there needs to be that loyalty to the law and the profession. Without it, there comes a win at any cost mentality, and then the scales of justice get a big thumb put on them.

It didn't escape Kansas City.  The Star's James Hart posts, "Death Row con wants new trial because judge, prosecutor had sex," at the Crime Scene blog.

Adam Liptak of the NYT has a great column about the case of Charles Dean Hood, who was sentenced to death by a judge who was, you know, having sex with the prosecutor. Amazingly, the Texas Supreme Court didn't think this was a big deal and let the man's conviction stand. (This is very broadminded of them, I feel.) The U.S. Supremes are getting ready to look at the case, and several prosecutors and judges have filed a brief supporting the convicted man.

Finally from the blogosphere, L Magazine has, "Texas Death Row Inmate Was Convicted By a Prosecutor Who Had Been Sleeping with the Judge; Has Appeal Overturned Anyway," posted by Mark Asch. 

Adding further credence to the whole "capital punishment cannot be administered in a constitutionally acceptable way" argument is this story out of Texas, state-sanctioned murder capital of America: in 1990, Charles Dean Hood was convicted of capital murder in a court presided over by a judge who had previously had an affair with the prosecutor.

Earlier coverage begins with the preceding post.  All coverage is available through the Charles Dean Hood index.

Rick Casey's Latest Take on the Hood Case

His column in today's Houston Chronicle is,"Best clue: The case of the erotic candy."

Former Gov. Mark White has joined 20 former judges and prosecutors and 30 legal ethicists in asking the U.S. Supreme Court to tell the Texas Court of Criminal Appeals the obvious:

That a judge who secretly slept with a district attorney can't preside over a death penalty case personally tried by the district attorney.

The Supreme Court has not yet agreed to hear the case, but I predict it will.

With all due respect to White and the other luminaries who last week filed briefs imploring the high court to take up the issue, my prediction is based less on their arguments than on a January ruling by the Supreme Court in another death penalty case.

This one didn't involve a judge, a prosecutor and their sexual affair.

It involved a judge, a juror and erotic candy.

White and the others want the Supreme Court to take the appeal of Charles Dean Hood, who was convicted of murder in 1990. Judge Verla Sue Holland and District Attorney Thomas O'Connell hid for 18 years the fact that they had engaged in a long-running affair while both were married. At one point, O'Connell denied the affair to Hood's defense attorneys.

But in 2008, the two ex-lovers were forced to testify under oath and admitted the affair.

A conservative Republican judge held a hearing on the evidence and ruled that Hood deserved a new trial — not because he could show actual bias by the judge, but because “it is the appearance of impartiality that is damaging to the public's confidence in the integrity of the judicial process.”

But the Texas Court of Criminal Appeals ruled that Hood had waited too long to bring up the affair.

Earlier coverage begins with the preceding post.  All coverage is available through the Charles Dean Hood index.

Next the blogosphere has lit up over Adam Liptak's coverage of the amicus brief

CCA Orders New Punishment Phase Trial in Charles Dean Hood Case.

Judge Cochran wrote the Court's opinion.  Judge Keasler wrote a dissent, which was joined by Judges Keller and Hervey.

AP's initial report is, "New punishment hearing for condemned killer," via the Houston Chronicle.  It's written by Michael Graczyk.

The Texas Court of Criminal Appeals has thrown out the death sentence of a convicted killer whose case has been dogged by admissions of an affair between his trial judge and the prosecutor.

The court, in a split decision, says Charles Dean Hood is entitled to a new punishment trial because jurors were not allowed to consider mitigating evidence that could have convinced them he didn't deserve a death sentence.

Wednesday's ruling makes no mention of the affair between the judge and prosecutor in Collin County in suburban Dallas. Last year, the same court refused Hood's appeal for an entire new trial.

As Graczyk notes, the ruling is on the basis of a Penry claim and is limited to the punishment; that the jury was not allowed to fully consider mitigating circumstances.  The Court previously rejected review of the conviction on the grounds that the trial judge and prosecutor had a secret romantic relationship (coverage of that ruling here, here, here, here, and here.)

Earlier coverage begins with this post.  All coverage is available through the Charles Dean Hood index.

There is a great deal more coverage of the Supreme Court amicus filed on behalf on Hood coming in the next post.

Hire a Lawyer, Escape the Death Penalty?

That's the title of an Issue Brief distributed today by the American Constitution Society.  It's written by Scott Phillips of the University of Denver.  Here's the abstract from ACS:

ACS is pleased to distribute an Issue Brief by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, entitled “Hire a Lawyer, Escape the Death Penalty?” In this Issue Brief, Professor Phillips describes the results of his study to test the claim made by death penalty opponents that wealthy defendants who hire legal counsel are exempt from capital punishment. His research focuses on Houston, Texas, and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Professor Phillips compares the outcomes in cases where the defendant hired a lawyer with cases where the defendant had a court-appointed lawyer and finds that, “[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal.” He also finds that “[h]iring counsel for a portion of the case substantially reduces the chance of death,” and “hiring counsel does not appear to be the province of the wealthy because virtually all capital defendants seem to be poor.”

Professor Phillips argues that these dramatic findings “are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies inherent in the appointment method of indigent defense.” He discusses these deficiencies and reform efforts in Texas aimed at addressing them. He believes that the reform efforts have not succeeded, however, and argues that “the solution is to create a public defender office with resources proportionate to the DA’s office. Such a proposal is not meant to suggest that a public defender office would be a panacea. But a public defender would reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method.” He concludes by asserting that, “Houston’s distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. The appointment method does not – and arguably cannot – meet such a standard.”

Click Here to Download the Issue Brief

Professor Phillips previously wrote an ACS Issue Brief entitled, “Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold.” His first issue brief described research he conducted on race and capital punishment in Harris County, and is available here.

Professor Phillips earlier Issue Brief is noted here; news coverage of his scholarship, here.

The State of Indigent Defense

The U.S. Department of Justice hosted a two day symposium on indigent defense on Thursday and Friday in Washington, DC.

The BLT reports, "Justice Dept. Pledges Support to Indigent Defense Reform."  It was posted by Mike Scarcella on Friday afternoon.

Top leaders at the U.S. Justice Department have rotated in and out of the Mayflower Hotel in Northwest Washington over the past few days, each declaring the department's commitment to indigent defense reform.

This afternoon it was Assistant Attorney General Lanny Breuer's turn to deliver remarks in front of several hundred people, many of them public defenders from around the country.

“A strong criminal defense bar is absolutely crucial to the efficacy of any adversarial judicial system,” said Breuer, head of the Criminal Division.

Breuer, a former Covington & Burling partner who focused on white collar criminal defense and served as vice chairman of the pro bono practice, spoke generally about the Justice Department’s examination of the sentencing disparities in crack and powder cocaine cases. And he said the department is looking closely at ways to reduce recidivism.

Breuer in his remarks spent several minutes on a history lesson tied to the public defense bar--recounting the Boston Massacre trials and a defense lawyer named John Adams (who later became the country's second president). Adams, Breuer said, agreed to represent soldiers at trial on murder charges despite the unpopularity of the defendants at the time. Representing the men, Breuer said, may have been "career suicide."

On Thursday, Attorney General Eric Holder addressed the symposium.  His speech, "Looking Back, Looking Forward, 2000-2010," is at the DoJ website.

For well over two centuries now, we, as a people, have been striving to build a more perfect union – an America that lives up to the vision of our Founders. A country where the words of our Constitution can, finally, reach the full measure of their intent.

It is no less than this ongoing work – the fulfillment of our Constitution – that brings us together today. I’m here to discuss a responsibility that we, as stewards of our nation’s criminal justice system, all share – a responsibility to ensure the fairness and integrity of that system.

I would argue that our criminal justice system is one of the most distinctive aspects of our national character. And I also would argue that it is one of the most praiseworthy. That said, we must face facts. And the facts prove that we have a serious problem on our hands.

Nearly half a century has passed since the Supreme Court’s decision in Gideon v. Wainwright. The Court followed with other decisions recognizing the right to counsel in juvenile and misdemeanor cases. Today, despite the decades that have gone by, these cases have yet to be fully translated into reality.

And:

In particular, I think our common work must have three areas of focus. I’ve touched on each of these goals over the last year. But all of them are worth mentioning here again today.

First, we must commit to an ongoing dialogue about these issues. We need partners at the federal, state, and local levels, both within and outside of government, to be involved. By sharing information and working together, I believe we can build on the good work that has gone into developing model standards for our public defense systems.

Second, we must raise awareness about what we’re up against. As Americans understand how some of their fellow citizens experience the criminal justice system, they will be shocked and angered – feelings I hope would compel them to become advocates for change and allies in our work.

Third, we must expand the role of the public defender. We must encourage defenders to seek solutions beyond our courtrooms and ensure that they’re involved in shaping policies that will empower the communities they serve. I’m committed to making sure that public defenders are at the table when we meet with other stakeholders in the criminal justice system. I have charged the Department’s leadership with calling on our components to include members of the public defense system in a range of meetings. We will also involve defenders in conferences, application review panels, and other venues where a public defense perspective can be valuable. And it should not go without saying – every state should have a public defender system. Every state.

Related articles are in the indigent defense category index.  Earlier coverage of Attorney General includes:

• Attorney General Eric Holder Address the ABA Annual Meeting
• AG Eric Holder Speaks at Vera Institute
• DoJ Announces Commitment to Public Defenders, Legal Aid

Editorial Roundup

Today's Wichita Eagle carries the editorial, "At least Senate had debate, vote," written by Rhonda Holman for the editorial board.

Under Kansas' death penalty statute, it takes 12 jurors to hand down a death sentence, which must be unanimous. But as Kansans learned last week, a 20-20 tie vote in the state Senate lets the death penalty itself stand as state law.

Because of House disinterest, that likely is the end of this year's effort to end the death penalty, starting with crimes committed July 1 and beyond, in favor of creating a new charge of "aggravated murder" with a sentence of life without parole.

Still, the Senate's emotional debate Friday revealed that support for capital punishment has weakened some since it passed the chamber in 1994 on a 22-18 vote. This time, 12 of 31 Republicans opposed the death penalty (compared with 7 of 27 Republicans in 1994).

State Sen. Carolyn McGinn, R-Sedgwick, deserves credit for bringing up the issue last year and framing a repeal as one way to help the state's fiscal problems, suggesting Friday that the savings could be invested in solving cold cases. Capital punishment's costs are secondary to other concerns — such as justice — but they aren't irrelevant, especially now.

And on its face, the statute has nothing to show for itself but the high cost of capital cases — an estimated 75 percent higher than cases in which the death penalty is not sought. Yes, 10 men are on Kansas' death row, including notorious area killers Jonathan and Reginald Carr, Douglas Belt and Justin Thurber. But their appeals are pending, with no end in sight. The state last executed someone in 1965.

The News Leader of Staunton, Virginia carried the editorial, "Death penalty not always just,"

State lawmakers running for reelection in November won't be able to tout that they were tough on crime by having been able to kill more fellow Virginians.

This potential setback to the lawmaker's political livelihood was dealt a huge blow this week when a bill to expand the death penalty to include accomplices, who don't actually pull the trigger, was rightfully defeated in a Senate committee.

Obviously buoyed by the swinging of the balance of power to the Republicans, proponents of the expansion must have been salivating to get a bill to Gov. McDonnell, who has indicated he would sign it into law. What he didn't count on was the testimony of Jerry Givens who was the state's chief executioner from 1982-1999. Having presided over 62 executions, Given admonished the committee that neither he nor they should have the right to decide who lives and who dies.

How right he is. We agree that giving prosecutors such discretion to widen the scope of individuals who will leave prison feet first is a dangerous slope that could lead to overzealous implementations based largely on the testimony of others involved in the crime, which could be dubious testimony, at best.

At a time when executions are being curtailed, why is Virginia pining to ramp up and widen the net to those who didn't actually fire the gun or thrust the knife? Perhaps we don't like the distinction of being second to Texas in the number of executions carried out since 1976 — we want to be No. 1! Why? Not because it is a deterrent, because it isn't. Studies have shown that there is no correlation between availability of the death penalty and lower murder rates. In fact, the opposite correlation exists. According to1997-2007 data from the Death Penalty Information Center, the murder rate in states without the death penalty was nearly 40 percent lower than states with the death penalty.

Earlier coverage from Kansas is here; Virginia, here.

More Book Reviews

David Dow wraps up author events with three events scheduled this week:

Tuesday, February 23rd – Book People – Austin, TX
Wednesday, February 24th – Barnes & Noble – San Antonio, TX
Saturday, February 27th – Politics & Prose – Washington, DC

Time.com has posted a Q&A with Dow, "The Death Penalty: Racist, Classist and Unfair."  The interview was conducted by  Laura Fitzpatrick.

Some two-thirds of Americans support the death penalty, but few are forced to confront it on a daily basis. As an appellate lawyer in Texas — which leads the U.S. in executions — David Dow has represented more than 100 death-row inmates over the past two decades. In The Autobiography of an Execution, he recounts what it's like to do the job and then come home to his family and his dog. He talked to TIME about why he keeps doing the work, the problem with juries and what it's like to look murderers in the eye.

You call the capital-punishment system "racist, classist, [and] unprincipled," but say you feel sympathy for people who support the death penalty. How can the two coexist?
On a regular basis, I'm sitting face-to-face with murderers. When I imagine sitting face-to-face with somebody who might have injured somebody I love or care about, I can imagine wanting to injure that person myself. I used to support the death penalty. [But] once I started doing the work, I became aware of the inequalities. I tell people that if you're going to commit murder, you want to be white, and you want to be wealthy — so that you can hire a first-class lawyer — and you want to kill a black person. And if [you are], the odds of your being sentenced to death are basically zero. It's one thing to say that rich people should be able to drive Ferraris and poor people should have to take the bus. It's very different to say that rich people should get treated one way by the state's criminal-justice system and poor people should get treated another way. But that is the system that we have.

And:

What do you think is the future of capital punishment in the U.S.?
My prediction is that we're going to get rid of it for economic reasons. We spend at least a million dollars more on a death penalty case than on a non-death-penalty case. In the U.S., where we've executed 1,200 people since the death penalty [was reinstated in 1976], that's $1.2 billion. I just think, gosh, with $1.2 billion, you could hire a lot of policemen. You could have a lot of educational programs inside of prisons so that when people come out of prison they know how to do something besides rob convenience stores and sell drugs. There are already counties in Texas, of all places, that have said, this is just not worth it: let's fix the schools and fill the potholes in the streets instead of squandering this money on a death-penalty case. You don't need to be a bleeding heart to make that argument.

Jordan Smith has posted, "Tinkering With Death," at the Austin Chronicle.

University of Houston law professor and Texas Defender Service litigation director David Dow's new memoir The Autobiography of an Execution (Twelve, $24.99) is a quietly written and devastating indictment of the death penalty in general, and of its practice in Texas in particular.

Although death sentences are down nationwide – and in 2009 just nine new sentences were handed out in Texas, the fewest since the reinstatement of the death penalty in 1976 – the machinery of death in Texas is nonetheless fierce: Of the 1,749 executions in the U.S. since reinstatement, 449 of them have taken place in Texas. Sentencing someone to death here is not an idle threat.

Still, Dow (who will read from his book Tuesday night Feb. 23, at BookPeople) is not sanctimonious: He knows that the majority of his clients are guilty, even though there are seven (of the more than 100 he's represented) that he feels strongly were, in fact, innocent. Dow previously believed in the death penalty, but does not now. That is in part, at least, because experience has taught Dow that upholding the rights of murderers, to paraphrase the author, doesn't really concern those who deem the death penalty an appropriate form of punishment. Many involved in tinkering with the machinery of death would hold that the ends justify whatever means, even overlooking the truth.

And:

Indeed, in the end, Dow's recounting of his role in the machinery is haunting. It is bleak. It is sad. It isn't for reading before bed. But it is absolutely worth reading because it is also bluntly honest: Dow does not shrink from calling his own bluff – the ways in which he is often simply running to keep up with the relentless pace of death penalty work in Texas, and where he may at times play a role in its dysfunction.

The Sunday edition of the Chicago Sun-Times carried two book reviews, one by Steve Weinberg of Dow's book, "Lawyer's angry look at death penalty."

In the Chicago area, already bedeviled by the implementation of the death penalty, a remarkable new book set in Texas seems sure to resonate.

Texas deserves its reputation as both the execution capital and the wrongful convictions capital of the United States. Texas lawyer David R. Dow doesn’t delve into the Cook County mess as part of The Autobiography of an Execution (Twelve, $24.99), but he knows plenty about the Illinois death penalty moratorium.

The Sun-Times also carried a review of Andrea Lyon's memoir Angel of Death Row.  The review, "Getting to know your death row inmate," was written by Thomas Frisbie.

Andrea D. Lyon would like to acquaint you with the kinds of people who face the death penalty.

Lyon, who handled 136 murder cases, many of them as a Cook County public defender, thinks people charged in capital cases too often are portrayed as inhuman. To add some insight into who they are, as well as to tell her own story, she wrote Angel of Death Row: My Life as a Death Penalty Defense Lawyer (Kaplan, $24.94). The book ranges over her experiences, from her days as a would-be Atticus Finch eager in 1976 to get onto the public defender’s homicide task force, to an experienced litigator ready to hand over the torch to a younger generation of lawyers.

A theme throughout her memoir is her repeated discovery that the stories behind even brutal crimes can be more complex than they at first appear.

“People are a product of a lot of different forces, and they end up where they end up for a lot of different reasons,” Lyon said.

In Angel of Death Row, Lyon, who now is associate dean for clinical programs at the DePaul University College of Law, revisits memorable cases she handled while working in Cook County and later while on the faculty at the University of Michigan in Ann Arbor. In each case, as she investigates the backgrounds of the defendants she represents, she learns about poverty, childhood abuse, domestic violence or other factors.

But that often not is the image the public sees, she said.    

“They are cardboard cutouts of evil,” Lyon said. “I wanted to tell my own story, but I also wanted to tell, even more important, my clients’ stories, so people could see that they are human beings, whether they are innocent or guilty or somewhere in the middle.”

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

Is Texas About To Execute Another Innocent Man?

That's the title of Radley Balko's latest post at Reason.com.  It's subtitled, "State officials would rather kill a prisoner than give him a DNA test."  It's a must-read:

Henry Watkins “Hank” Skinner was supposed to be executed tomorrow, but last Tuesday a Gray County, Texas, District Court judge pushed the date back one month, to March 24. Skinner has been on Death Row in Texas since 1993, awaiting execution for the murder of his girlfriend and her two sons. He has maintained his innocence since his arrest, and investigators from the Northwestern University Journalism School’s Medill Innocence Project have shot numerous holes in the prosecution’s case. But Texas officials refuse to conduct a simple DNA test that could point to the condemned man’s innocence or cement his guilt.

Skinner's scheduled lethal injection comes shortly after Texas Gov. Rick Perry has removed sympathetic panelists from the state forensic committee's investigation into the case of Cameron Todd Willingham and replaced them with panelists critics say are stymieing the investigation. Willingham was executed in 2003 for murdering his three daughters by setting fire to his house. Nine arson experts and an investigation published in the New Yorker last year have since made a strong case that Willingham was innocent of the crime.

At the same time, Texas, a notoriously enthusiastic enforcer of the death penalty, continues to lead the nation in DNA exonerations (one county in Texas has produced more genetic exonerations than all but three states). Which makes it all the more disturbing that biological evidence from Skinner’s crime scene remains untested, at the behest of prosecutors and backed up by the courts. You’d think given recent headlines that Texas might be a bit more reluctant to execute a possibly innocent man.

And:

After a conviction, the criminal justice system tends put a premium on finality, setting a high bar for reopening or retrying old cases. Given the Willingham case and the spate of exonerations across Texas, perhaps it's time the state put less emphasis on finality, and more on certainty. DNA testing in Skinner's case may not bring us closer to closing those 1993 murders, but it will bring us closer to discovering the truth about them. In a capital case especially, that alone should be reason enough to to go through with the tests.

Earlier coverage of the Skinner case begins here.

In stark contrast, officials in Georgia have reached an agreement with lawyers for Carlton Gary for post-conviction DNA testing of evidence.  Last year, the Georgia Supreme Court stayed Gary's scheduled execution so that the issue of post-conviction testing could be examined. 

Bill Rankin reports, "DNA tests OK'd for 'Columbus Stocking Strangler'," in the Atlanta Journal-Constitution.

Almost a quarter-century after he was convicted as the "Columbus Stocking Strangler," Carlton Gary has obtained the right to have DNA tests of the state's evidence.

In an order signed Friday, Muscogee County District Attorney Julia Slater and Gary's attorneys agreed to have the GBI test four semen samples taken from three women who were raped and then strangled with their nylon stockings in the late 1970s. The results should be known in about a month.

Gary, 57, was scheduled to die by lethal injection on Dec. 16, but the Georgia Supreme Court halted his execution with just four hours to spare. The court ordered a Columbus judge to convene a hearing to decide whether DNA testing, unavailable at the time of Gary's 1986 trial, should be conducted. Friday's agreement was reached before the hearing was held.

"We're happy that the state has agreed DNA testing should go forward," said one of Gary's lawyers, Jack Martin, who for years has been seeking permission to conduct such tests. "We hope a profile can be found from these items that can exonerate Mr. Gary."

Slater, the prosecutor, said she reached her decision after researching the law, reviewing the evidence and consulting with victims' families. Slater said that even though she believes the tests are not required under the law, continued opposition would prompt more appeals and could result in a court order to test evidence that is unreliable.

Earlier coverage of the Gary case begins with this post.

Adam Liptak on the Charles Dean Hood Case -UPDATED

The New York Times has posted his Tuesday Sidebar column online.  It's titled, "Questions of an Affair and a Fair Trial."

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.”

The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.

UPDATE: The link above to the brief from the ethics experts appears to be broken.  The brief is here, in Adobe .pdf format.

And:

The Supreme Court has lately taken some interest in the integrity of the judicial system.

Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.

“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.

Earlier coverage of the Hood case begins with my commentary, Charles Dean Hood Case Returns to View.

Doctors Who Aid in Executions Unlikely to Face Sanctions

That's the title of a post at the AMA's American Medical News written by Kevin O'Reilly.  It's subtitled, "Capital punishment opponents want medical boards to punish these physicians, but a new study finds that boards do not have the legal power to intervene."  Here's an extended excerpt of this must-read:

No U.S. medical board has disciplined a doctor for taking part in an execution, and that is unlikely to change, according to a new legal study.

The study, published in January in the Federation of State Medical Boards' Journal of Medical Licensure and Discipline, is believed to be the first to comprehensively review all state laws and regulations on doctors, medical boards and executions. The study found that only seven death-penalty states incorporate the American Medical Association's ethics code, which, among other things, bars physician participation in executions.

Nearly all capital punishment states specifically call for doctors to be involved in some way, the study said.

"There is this perception that many people, including judges, have that because of the AMA ethical code, doctors can't participate and won't participate in executions when the reality -- and we've learned this through the legal cases that have been brought -- is that doctors do participate and are willing to participate," said Ty Alper, who authored the study and is associate director of the University of California, Berkeley School of Law's Death Penalty Clinic. "The AMA guidelines are just that -- guidelines -- and not enforceable in most circumstances."

The AMA ethics policy on physician participation in executions, first issued in 1980 and last revised in 2000, states, "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution." It is OK for physicians to certify a condemned inmate's death after it has been determined by someone else, and doctors may attend executions in a nonphysician role. But the policy says nearly any other death-chamber activity would violate the obligation to do no harm to patients.

The AMA confirmed that it has revoked one physician's membership "for participation in execution by lethal injection," according to a Dec. 19, 2007, article in the Journal of the American Medical Association.

Many other physician and health professional organizations have similar policies, but Alper said the AMA's position statement has been the most influential in courtrooms. Only two death-penalty states, Illinois and Kentucky, specifically bar doctors from the execution chamber.

The article contains additional resources at the link.  Related posts are in the lethal injection index.  Posts relating to physicians and executions include:

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

More Reviews for Dow's Autobiography of an Execution

"'A Texas attorney and law professor chronicles his often difficult efforts to have death-row clients spared in a book that is part memoir and part historical account," is the title of Art Winslow's review in the Sunday edition of the Los Angeles Times.

You support the death penalty -- almost two-thirds of the country did, in a 20096 Gallup Poll. You may consider it retributive justice or perhaps a deterrent. You do not find racial disparities or irregularities in its application overly troubling. You believe most attorneys and judges act dispassionately and in accord with the dictates of law and the Constitution.

Still, there is the Texas problem.

Of the 1,194 executions in this country since 1976, Texas alone has carried out 449. A state in which 7.8% of Americans reside accounts for 38% of our state-sanctioned killing, in other words. A report by the Criminal Justice Project of the NAACP pointed out last year that, of the cases singled out for the death penalty, 78% involved white victims. A 2009 survey, cited by the Death Penalty Information Center, showed that 88% of former and current presidents of the country's top academic criminological societies believe that capital punishment is not an effective deterrent to murder. There have been 139 death-row exonerations since 1973 based on evidence of innocence.

Ignore all that, and still the Texas situation begs an accounting.

David R. Dow is an attorney and law professor in Texas who has defended death-row clients since the late 1980s. He will not bore you with such statistics in his book "The Autobiography of an Execution." Instead, he will transfix you with what he has to say and raise a host of other questions.

"I know death-penalty lawyers who are at the movies when their clients get executed," Dow observes early in this memoir. "I know one who found out on Thursday that his client had been executed on Monday. He'd been scuba diving in Aruba. I understand that. It's possible to care without seeming to. It's also possible to care too much. You can think of yourself as the last person between your client and the lethal injection, or you can see your client as the person who put himself on the rail to that inevitability. One is healthier than the other.

Joe Gross writes, "Death-row lawyer looks at toll of system on witnesses to execution," for the Austin American-Statesman.

In addition to being a law professor at the University of Houston, David Dow is the litigation director of the Texas Defender Service, which means he represents people on death row in the appellate phase of their convictions.

As his memoir, "The Autobiography of an Execution," makes clear, the extent to which this job description should include "tilting at windmills" cannot be overstated.

After all, Dow notes, most of the people he represents have done exactly what prosecutors say they did. And they have done hideous things: torture, rape, murder — sometimes not even in that order. Dow and his team lose most of their cases; his clients are strapped to a gurney and killed by the state. Dow has witnessed this many, many times.

Then he goes home, has dinner, goes to bed, wakes up, kisses his wife and young son, and does it again the next day.

This can take a toll on a guy.

"I wanted to show how the death penalty takes people out of their ordinary selves, how it forces them to accept things that they otherwise wouldn't accept," Dow says from his Houston home.

In other words, it takes a toll on everyone — you, me, everyone. If there is one overarching theme to "The Autobiography of an Execution" it is this: The death penalty deforms everything and everyone it touches. It deforms the trial lawyers who don't care about their clients. It deforms the judges, who become haunted by the cases that don't quite add up. It deforms the state legislators who fail to vigorously debate the issue for fear of appearing soft on crime. It deforms a legal system built on equal representation. It deforms the victims' families, who are left after an execution with just as much sadness and one fewer person to hate.

Earlier coverage of the book begins with this post.  Several author events are scheduled this week:

Tuesday, February 23rd – Book People – Austin, TX
Wednesday, February 24th – Barnes & Noble – San Antonio, TX
Saturday, February 27th – Politics & Prose – Washington, DC

Kansas Senate Rejects Repeal in Tie Vote

Friday afternoon the Kansas Senate voted against repealing it's capital punishment law by the narrowest possible margin -- a tie vote.

"Senate rejects bill abolishing Kan. death penalty," was the title of John Milburn's AP report, from the Alva Review-Courier.

Senators rejected a bill to repeal Kansas' death penalty after a marathon debate Friday that was frequently as much about theology as crime and punishment.

The vote was 20-20, meaning the bill failed to get the required votes to send it to the House, which hasn't considered the issue all session. Senators said the repeal movement was over for the year.

The debate lasted nearly four hours. Several senators mentioned that the Kansas bishops of four Christian denominations had written a letter urging repeal of the death penalty.

Sen. Carolyn McGinn, one of the senators who pushed for the repeal in recent years, said she was Roman Catholic and believed life was sacred from birth until natural death.

"We pass abortion laws because we say they are a child of God. Tell me at what point in time did they lose that status and who made that decision?" said McGinn, a Sedgwick Republican.

The bill would have replaced the state's 1994 death penalty law and created a new sentence of life in prison without parole.

Ten men currently are under death sentences in Kansas. The proposed repeal wouldn't have affected those punishments. The state's last execution was in 1965.

And:

Senate Majority Leader Derek Schmidt tried unsuccessfully to amend the bill by striking the repeal language. He spoke of the victims and the pain they must endure every time the death penalty is debated.

Schmidt said even if the Senate passed the bill, it was unlikely to get a hearing this session, let alone pass the House. Even then, Schmidt said, Gov. Mark Parkinson has indicated that he's unlikely to sign a bill repealing the law he drafted as a legislator in 1994.

"This is largely a debate for the sake of debate. And there is merit to that. But consider the other side that debate does have consequences from time to time," Schmidt said. "The right thing to do is stop this now."

Senators rejected Schmidt's amendment by the same 20-20 vote, foreshadowing the bill's demise.

Bills to repeal the death penalty have been introduced over the past five years but never have made it as far as Friday's vote.

The Senate debated a similar measure last year and wound up sending it back to committee over numerous concerns, including how it would apply to those already sentenced to death.

Jeannine Koranda wrote, "Senate bill fails; death penalty not eliminated," for the Saturday edition of the Wichita Eagle.

An emotional debate Friday ended with the Senate keeping the state's death penalty on a 20-20 vote.

The tie vote meant rejection for Senate Bill 375, which would have replaced capital punishment with aggravated murder and a mandatory life sentence.

It's the second consecutive year the Senate has considered repealing Kansas' 1994 execution law.

Opponents of the death penalty point to studies that show violent crime has not dropped significantly and note that capital punishment cases cost about $500,000, or 75 percent, more to prosecute.

And:

"For me the right thing to do is to stop this now — we do this by sending it back to the committee — and be done with this discussion," said Senate Majority Leader Derek Schmidt, R-Independence.

Other lawmakers noted that tabling the discussion would simply draw it out longer.

"If we don't finish what we started today and have a vote on this issue, I'm almost certain it will be back next year so the family of victims won't have the closure that they desire," Vratil said. "They won't be able to move on because we are going to have this debate every year until we finally finish it and have a vote on it."

Other lawmakers complained that they had not expected such an important bill to be up for debate on the last day of "turnaround week." Today is the deadline for bills to clear their chamber of origin; those that don't are considered dead for the session.

Schmidt, who controls which bills appear when on the calendar for debate, announced that the Senate would debate the proposal as lawmakers were preparing to leave late Thursday.

The Kansas City Star reported, "Kansas Senate sustains death penalty," by David Klepper.

Ten men now sit on death row in Kansas. Their sentences would not have been affected by the legislation. If it had passed, the death penalty would be replaced by life without parole in future murder cases.

Critics noted that death penalty prosecutions cost $500,000 more than other murder cases. And Senate Vice President John Vratil, a Leawood Republican, cited nine death row inmates exonerated last year in the United States.

Despite having a death penalty, Kansas hasn’t executed anyone since 1965.

But critics of the penalty appear to be making progress in winning over lawmakers. Senate President Steve Morris, a Hugoton Republican, is one lawmaker who has changed his mind. He voted for the original law in 1994.

“That’s a vote I wish I could take back,” Morris said.

Even if the bill had passed the Senate, House Speaker Mike O’Neal, a Hutchinson Republican, said it was unlikely the House would consider it.

Asked whether he thought most House members would vote to repeal capital punishment, O’Neal was succinct: “No.”

Gov. Mark Parkinson, a Democrat, helped craft the state’s death penalty law when he was a legislator. That fact leads many lawmakers to believe he’d veto any attempt to repeal it. But Parkinson said Thursday that he hadn’t made a final decision on the issue.

Earlier coverage from Kansas begins here.

Editorial Support for North Carolina Innocence Commission Following Exoneration

Thanks to Gerda Stein of North Carolina's Center for Death Penalty Litigation for forwarding all the coverage linked below.

The News & Observer of Raleigh has the editorial, "Blood-hounded."

Greg Taylor's claim that he was railroaded into prison, wrongfully convicted of murder, turned out to be ... true! So three Superior Court judges concluded after a hearing that broke new ground for North Carolina's justice system.

Taylor, set free after 17 years, is joyful at his exoneration. The rest of us can take satisfaction in knowing that this state now has a method capable of identifying cases where the courts, in punishing the innocent, have failed.

"Case shows wisdom of innocence process," is the editorial in the Charlotte Observer.

It exposes an incredibly sloppy police investigation of the murder, a badly handled prosecution case that ignored common sense and an incompetent defense that failed to investigate the flawed evidence prosecutors used to convict Taylor.

It confirms the wisdom of former N.C. Supreme Court Chief Justice Beverly Lake in commissioning a study of whether the state should create a formal process to hear credible cases of actual innocence from prison inmates. The legislature later created the Innocence Inquiry Commission, the first of its type in the nation, to consider such cases. Sadly, there have been too many cases of wrongful convictions in this state.

The Greensboro News & Record has, "State innocence panel finally delivers justice."

Freed from prison after serving 17 years for a crime he didn’t commit, Gregory Taylor joins a handful of men who belatedly received elusive justice from a system that can and does make mistakes.

When the unique, three-judge state Innocence Commission announced its decision on Wednesday, Darryl Hunt, Joseph Abbitt and Dwayne Dial were there.

All had languished for years in prison until being freed following lengthy court appeals. Taylor, however, was the first to be exonerated by the new state panel, which offers a slim ray of hope to the wrongly convicted.

For these men, there’s little solace in the platitude that the justice system usually works. Years away from families and shattered lives can never be replaced or fully mended.

"An innocent man free at last - a win for all of us," is in the Rocky Mount Telegram.

His newfound freedom is a success story, too, for the N.C. Innocence Inquiry Commission, a one-of-a-kind institution in the United States. The commission should serve as a model for all states to emulate. Its work in Taylor’s case alone has been priceless.

The happy ending to Taylor’s story — he has maintained all along that he is innocent in the death of Jacquetta Thomas — isn’t comfortable to all of us. It exposes too many flaws within our criminal justice system — a rush to judgment based in part on shaky evidence and plea bargains for testimony, to name a few.

If an innocent man can be forced to give up 17 years of his life for a crime he didn’t commit, how can we fix the system so this doesn’t happen again?

There isn’t an easy answer to that.

The Herald Sun carries, "Establishing innocence."

In establishing the Innocence Inquiry Commission, the North Carolina General Assembly did three very risky things.

First, legislators accepted the overwhelming evidence that the justice system is imperfect and puts an unknown number of innocent people behind bars.

Second, they agreed that the appeals system offers insufficient relief for the wrongfully imprisoned, and established a backstop that could -- and now does -- get some of those people out of jail.

Third, by adding that opportunity, it opened the state to a new class of lawsuits from former inmates whose innocence has been established and vetted by a state-funded panel of judges.

The things we have taken from Greg Taylor can't be restored, but it seems inevitable that some court will end up pondering the question of how much we owe in exchange for 6,149 days of a man's life.

Whatever it is, we ought to pay it, and with good will.

Today's News & Observer has the news article, "Freedom looks good for Greg Taylor," by Mandy Locke.

The Department of Correction owed Taylor $45 and a stack of certificates meant to help him navigate the free world. He collected a transcript tallying the community college classes he took in prison, a list of county agencies that could help him apply for a job, a fresh Social Security card so he could apply for a driver's license. It's all Taylor cared to carry from his old life.

"This is no place to be. No place to waste your life," Taylor said, shaking his head.

On his first full day of freedom after a panel of judges reversed the 1993 conviction, Taylor tried to shed the remnants of his former life. He hit the mall, trading in his prison-issued, horn-rimmed glasses for a snazzy pair of brand-name wire frames. He took a shower without his prison-issued shower shoes, behind the privacy of a curtain.

Earlier coverage is here.

Charles Dean Hood Case Returns to View

Diane Jennings reports, "Prominent attorneys seek Supreme Court review of Hood death penalty case," at the Dallas Morning Crime blog.  Here's her post:

A former governor, a former district attorney, a former U.S. attorney from North Texas, and the former director of the FBI are among a group of 21 lawyers who have petitioned the U.S. Supreme Court to hear a controversial Texas death penalty case.

The group, which was organized by the Constitution Project, is asking the court to hear the case of Charles Dean Hood, who was sentenced to death for killing two people in Collin County in 1989. Hood's case has garnered national attention not for the horrific crime, but because the prosecutor in the case had an intimate relationoship with the judge.

The Texas Court of Criminal Appeals has declined to address the merits of the case so lawyers are asking the Supreme Court to intervene. Among those who joined the brief are Kenneth Mighell who served as U.S. Attorney in the Northern District of Texas, Sam Millsap, who served as Bexar County District Attorney, William S. Sessions, who was director of the FBI and a federal judge, and Mark White, former Texas Governor who once bragged about his use of the death penalty in campaign ads.

The amicus brief is in Adobe .pdf format.  Earlier coverage of the Hood case begins with this post.  It is one of most sordid examples of Texas courts turning a blind eye to injustice.

I'm adding Charles Dean Hood to the category index.  After updating, all coverage of his case will be available through that link.

For years, when people heard the phrase, "sleeping lawyer," most knew it referred to a Texas death penalty case, whether or not they could identify the case of Calvin Burdine.  His court-appointed lawyer, Joe Cannon, repeatedly fell asleep during Burdine's capital murder trial.  Though neither the trial judge, who had appointed Cannon, nor the prosecutor made any comment about Cannon's dozing during the trial.  It was the jurors who discussed it, and eventually from them that Burdine's post-conviction attorney learned of the fundamental flaw.

The Charles Dean Hood case, the Plano HoodWink, with a romantic affair between the trial judge and the Collin County District Attorney, kept secret and undisclosed until 2008 -- 18 years after Hood's capital murder trial -- gives an entirely new twist to the term, "sleeping lawyer."

At nearly every turn, Texas officials have sought to bury this embarrassment through Hood's execution rather than confront the egregious misbehavior.   Once again, it may come to the U.S. Supreme Court to review a case that Texas courts have turned away.

Kansas Senate Considering SB 375 Now - UPDATED

The Kansas Senate is now considering  Senate Bill 375.  You can listen to the proceedings here.

UPDATE -- It's nearing 1:00 pm, and I'll be leaving the office for a meeting.  The debate on SB 375 began at 10:35 am. 

South Dakota House Rejects Repeal Bill

"SD lawmakers refused to repeal death penalty," is the AP report via KTIV-TV.

A move to repeal the death penalty in South Dakota has once again been rejected in the state Legislature.

The House Health Committee voted 8-5 to kill a measure that would have repealed the death penalty and changed the sentence for all death-row inmates to life in prison without parole.

The bill's main sponsor, Rep. Gerald Lange of Madison, says the death penalty is immoral. Lange has sponsored similar bills in past years.

And:

South Dakota has two men on death row. Their appeals are pending in federal court.

Today's Yankton Press & Dakotan carries the editorial, "As We See It: Deadly Serious."

THUMBS DOWN to news that the South Dakota Legislature has once again killed a bill that would repeal the death penalty. Much of the United States lags behind its peers in the developed world, where the death penalty is a rarity. The argument is often made, as it was this week by South Dakota Attorney General Marty Jackley, that the death penalty protects the public and deters others from committing murders. However, that logic is not supported by the facts. In 2008, the average murder rate in states with the death penalty was 5.2 per 100,000. For those without the death penalty, that number was 3.3. Iowa, Minnesota and North Dakota do not have the death penalty and their murder rates are on par, if not lower, than South Dakota. When you also take note of the more than 100 people who have been released from death row because new evidence exonerates them, the moral argument for repealing it is very compelling.

Earlier coverage from South Dakota begins with this post.

Kansas Senate Will Consider Repeal Bill Today

The Kansas Senate has convened and is in session.  You can listen to the proceedings here; to track the agenda, today's calendar is here.

Today's Topeka Capital-Journal reports, "Senate to debate death penalty," written by Tim Carpenter.

The Senate will embark on a wide open debate Friday on the appropriateness of the state's capital punishment statute.

Senate Majority Leader Derek Schmidt, R-Independence, surprised colleagues by announcing the 40-member chamber would consider a bill repealing the state's death penalty. The controversial, emotional legislation emerged from the Senate Judiciary Committee amid speculation it would die on the chamber's calendar.

Reluctance to bring the issue to the Senate floor was driven in part by the belief that Democratic Gov. Mark Parkinson, who wrote much of the capital punishment law when a senator, would not be interested in reversal of the statute.

On Thursday, Parkinson said in an interview that his mind was not made up on the issue of repeal.

"I haven't said I would never sign a repeal. I said it's unlikely," Parkinson said. "If that bill hit my desk, I assure you I would spend a significant amount of time really researching whether the death penalty made sense."

A similar repeal measure floundered last year in the Senate. Opposition to repeal is more intense in the House.

And:

Ten men have been sentenced to death, but no one has been executed in Kansas since the new law was adopted in 1994. It would replace the crime of capital murder with the offense of aggravated murder punishable with life in prison without parole.

Jeannine Koranda writes, "Senate will debate death penalty bill today," for the Wichita Eagle.

The full Senate will have the chance today to debate a measure that would abolish the death penalty.

Lawmakers have been pushing through a slew of bills this week. Saturday is the deadline for bills not in an exempt committee to pass out of their chamber of origin. After that the bill is considered dead — although an idea can be revived via amendment or the bill can be sent temporarily to an exempt committee.

Senate Majority Leader Derek Schmidt, R-Independence, who schedules bill debates, told the chamber Thursday that the death penalty measure, Senate Bill 375, would be up for debate on the floor.

The proposal 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.

And:

Kansas last executed someone in the 1960s.

The Kansas City Star has, "Kansas Senate will debate death penalty repeal Friday," posted by David Klepper.

A Senate committee endorsed the bill eliminating capital punishment, but until today it looked like the legislation might languish on the agenda.

Few expect that the measure could pass the House and be signed into law by Gov. Mark Parkinson, who helped write the law during his days in the Legislature.

But Parkinson said this morning he hasn't made up his mind on what he would do.

Earlier coverage from Kansas begins with this post.  The text of SB 375 is in Adobe .pdf format.

Continuing Coverage SCJC - In Re: Keller

Mary Alice Robbins has posted "Both Sides Take Issue With Special Master's Findings in Keller Case," at Texas Lawyer.

Prosecutors for the State Commission on Judicial Conduct argue in objections filed Feb. 17 that Texas Court of Criminal Appeals Presiding Judge Sharon Keller's "willful and/or persistent conduct" in the case of Michael Richard authorizes the commission to sanction her.

Keller's conduct on the day the state executed Richard was "clearly inconsistent with the proper performance of her duties" and "cast public discredit on the judiciary and/or on the administration of justice," Seana Willing, the commission's executive director, and John J. "Mike" McKetta III, special counsel for the commission's formal proceedings against Keller, write in their objections. They were responding to the findings of fact that 37th District Judge David Berchelmann Jr. of San Antonio, special master in In Re: Honorable Sharon Keller, submitted to the judicial conduct commission on Jan. 20.

Berchelmann, who was appointed as special master by the Texas Supreme Court, found that Keller should not be removed from office or be publicly reprimanded for her conduct in connection with Richard's case. Berchelmann also found that actions by Texas Defender Service (TDS) attorneys who represented Richard contributed to their failure to file a petition for writ of prohibition and for a stay of execution on his behalf. TDS did not file either document with the CCA after Keller said the court clerk's office would not remain open past 5 p.m. on Sept. 25, 2007, to receive filings on Richard's behalf; the state executed Richard later that day. [See "The Blame Game," Texas Lawyer, Jan. 25, 2010, page 1.]

According to the prosecutors' objections, Berchelmann's findings regarding whether Keller's conduct or the conduct of Richard's attorneys ultimately caused the TDS attorneys' failure to obtain a stay are "irrelevant."

"In effect, the Special Master improperly turned the proceeding before him into the semblance of a tort case or other proceeding in which comparative responsibility or fault is an issue. The issue here is not TDS's conduct, but Judge Keller's conduct," the prosecutors assert in their objections.

Earlier coverage begins with this post.; Examiner's Objections and Responses.

More on Florida's Execution of Martin Grossman

Nochum Kurinsky writes the commentary, "The Day I Watched a Man Die," at Yeshiva World News.  Here's an extended excerpt"

Today I watched a man die.

The call came in  at about 2:00 pm. “Can you be with Mr. Martin Grossman during his execution?” How can you say no? How can you say yes? What can you say? After speaking to my wife, I decided to go. I made a few phone calls and found a companion for the road and off we went. Along the way, another friend offered to join and the three of us departed down the I95 to the I10 to be with Mr. Grossman.

A little background.

A few months ago Rabbi Mendy Katz from Aleph sent out an email to the local Chabad. Rabbis.  In it was a very simple request. Due to the financial downturn Aleph could no longer afford to send Yeshiva students to all the prisons in Florida. Would any community be willing to go visit a few prisons in their area? We volunteered. Rather, I volunteered and subsequently invited members of our community to come along.

On our first visit, during Chanukah, our group was divided into pairs of two for maximum efficiency. David Sall, a local psychiatrist and Rabbi Menachem Mendel Lieberman, my lifetime friend and a local law student teamed up and I partnered with Dovid Moyer, a local financial repair specialist and businessman. Our group went to a number of prisons that day including Union Correctional. Mendy and David went to death row. As you know by now, death row housed the now world famous Martin Grossman A”H.

Several days after our visit to death row, the Governor signed Martin’s death warrant and set the date of execution for February 16th at 6:00 PM. Saddened by the news, but not really sure what to do, I kept about my daily business and even went back to visit the  prison one more time with a group.

Sometime during January, Rabbi Katz called me, “Martin is going to die,” he said. “What we can do to help him?” At first, I have to admit, I was hesitant. What could I do? I’m a local Chabad Rabbi.  This is for the national organizations.  After reading the proclamation by Rabbi Shochat of Los Angeles that one could even violate Shabbos to save Mr. Grossman, I was convinced.

First, I called Rabbi Mendy Katz back and told him I was on board but only to assist him, not to take charge of this. Then, I called Rabbi Oirechman the Chabad Rabbi in Tallahassee and asked if he was on board. After giving it some thought, he said that he was fully on board. Now was time to get the plan in motion.( Let also add that tremendous work was being done by many organizations at the time. This is just my account and the events that led me to watch Martin Die.) Rabbi Katz put together a letter that most of the 150 Chabad Rabbis in Florida signed. Another letter was written by Rabbi Zvi Biarsky which many Rabbis from every Jewish group signed as well, and they were both later hand delivered to the Governor by Rabbi Oirechman.

In addition, I started an online petition. On the first day we had 23 signatures, day two we had 200 on day three 1,000. At about that time, many in the broader Jewish community got involved in the cause to encourage the Governor to grant a clemency hearing to Mr. Grossman. Leaders from Agudath Israel, the OU, the RCC, many in the Yeshiva world in Monsey and Lakewood, and Satmar Chassidim were getting involved. It was simply amazing! The cause was taking a life of its own. Every day emails were being sent out to thousands upon thousands of people from all walks of life encouraging them to sign the petition. At its close, the petition had in excess of 33,000 signatures many people wrote personal and some heart rending notes. The Achdus/togetherness of Klal Yisroel/the Jewish people was heart-warming.

Just to give further insight into this we put together a website called www.savemartingrossman.com. While  putting the site together, I realized in amazement, that  the man with the idea for the site was a Litvisher/yeshivish Jew, the man who paid for the site was a Satmar Chosid and here I was, a card carrying Lubavitcher shliach working on the site through Chabad.org’s unbelievable server system. Incidentally, nearly 20,000 people logged onto the site during the last week alone.

That’s the background for today’s events. I’m now on the way to the prison with my two friends Dr. David Sall and Rabbi Mendy Lieberman who by divine providence are the same two people who visited Martin during Chanukah.

Earlier coverage is noted here.

Death Penalty Takes Resources Away From Solving Other Murders

That's the title of an OpEd in today's Silicon Valley Mercury News, written by Judy Kerr.  She's the Northern California outreach coordinator for California Crime Victims for Alternatives to the Death Penalty.  LINK

This month marks the 25th anniversary of the murder of Jeanine Grinsell, who was killed by David Raley in Santa Clara County. A second victim, sexually assaulted and stabbed multiple times, survived and has spent the past 25 years trying to put the memory behind her. Raley was apprehended, convicted and sentenced to California's death row, where he remains today.

When I hear stories of inmates on death row for murders that happened decades ago, I am filled with rage against the death penalty, but not for the reasons you might think.

I'll be marking a milestone this month, too. My brother, Robert James Kerr, would have been 50 years old, and I would have been celebrating with him. But in 2003 he was severely beaten, strangled and left shirtless and shoeless on the side of the road 30 miles from his apartment. His bank accounts were raided during the three weeks that authorities took to identify his body. There is surveillance video of someone repeatedly using his ATM card after his death.

His killer remains free.

There are over one thousand unsolved murders such as Bob's each year in California. Yet counties are closing cold case units, rape evidence kits are left unprocessed and lawmakers are cutting corrections budgets. We have more people in prison in California than in most countries in the world, but still a thousand families each year are left to fear and wonder and grieve.

And:

Revenge sounds sweet at first, but in reality families pay the real price. Our pain, suffering and doubt are prolonged endlessly, our communities remain at risk and killers roam free. The truth is California's death penalty wastes precious funds and does not deter crime. It does even less to bring healing to families and survivors.

What capital punishment does do is waste money needed to solve murders. In these economic times, the most responsible way to deter crime is to quickly apprehend and punish the people who commit heinous acts. We cannot afford to spend scarce resources on special attention for 700 convicts who are already behind bars. I am outraged that we allow a handful of prisoners to become media stars. They are locked up — and Bob's killer is not.

I understand anger. My soul has been shaped with a yearning for revenge. That is precisely why I know that the death penalty will never bring any of us peace. Only severe, swift and certain justice for all killers could do that.

Related posts are in the cost, OpEd, and victims' issues indexes; earlier coverage from California begins with this post.

South Dakota House in Session

For those who want to hear the floor debate on HB 1245, the South Dakota House of Representatives has convened and is conducting business.  Audio of the House Session is at this LINK.

Earlier coverage of the legislation begins with this post.

North Carolina Innocence Commission Proves Worth With First Exoneration

Today's New York Times reports, "Judges Free Inmate on Recommendation of Special Innocence Panel."  It's written by Robbie Brown.  It was a non-capital case.  Here's an extended excerpt:

Acting at the recommendation of a special state innocence commission — the only one of its kind in the nation — a panel of North Carolina judges ruled Wednesday that a man was wrongfully convicted of murdering a prostitute in 1991 and freed him after 16 years in prison.

The three-judge panel found “clear and convincing evidence” that the man, Gregory F. Taylor, was innocent and had been convicted based on flawed evidence and unreliable testimony.

It was the first case won by the commission, which was established in 2006 after a wave of embarrassing wrongful convictions in North Carolina.

Celebrating with friends and family over a shrimp salad at a cafe in downtown Raleigh, Mr. Taylor said he was still in shock after “6,149 days in prison.”

“This morning, I was laying in a jail cell with a crazy person banging on the wall next to me,” he said. “Now I’m sitting at a fancy Italian restaurant talking on a cellphone.”

After the verdict, the Wake County district attorney, C. Colon Willoughby Jr., apologized to Mr. Taylor.

“I told him I’m very sorry he was convicted,” Mr. Willoughby told The Associated Press. “I wish we had had all of this evidence in 1991.”

The eight-member North Carolina Innocence Inquiry Commission considers claims of innocence from convicts or anyone else with pertinent information. It has reviewed hundreds of claims by prisoners and brought only three to a hearing. If the commission agrees that a claim has merit, it refers cases to a three-judge panel, which has happened only once except for Mr. Taylor’s case, and the argument in the other case was rejected.

In most states, convictions are usually overturned only by governors and pardon boards, or occasionally by judicial review. Inmate advocates used the ruling for Mr. Taylor to renew their call for others states to create commissions to investigate claims of innocence, even years after ordinary statutes of limitation have expired.

“North Carolina’s commission is an important model for the adjudication of innocence claims,” said Barry C. Scheck, director of the Innocence Project in New York. “In the American court system, there are normally procedural bars that get in the way of litigating whether someone is innocent or not.”

Much national attention has been focused to using DNA to overturn wrongful convictions, said Stephen B. Bright, director of the Southern Center for Human Rights. But 90 percent of criminal cases, like Mr. Taylor’s, do not involve any DNA evidence.

Martha Waggoner's AP dispatch is, "Judges free NC murder convict after 16 years," via Google News.

A man convicted of murdering a prostitute was exonerated and set free Wednesday in the first win for North Carolina's innocence commission, the first and only panel of its kind in the nation.

Greg Taylor's family and supporters broke into cheers when the decision was announced by a three-judge panel that heard six days of arguments about the evidence used to convict him more than 16 years ago.

Taylor, 47, always insisted he did not kill prostitute Jacquetta Thomas in 1991. He testified he was in the area doing drugs with a friend and they spotted what they thought was a body, but didn't report it to police.

Taylor wore shackles during the hearing. After the decision was announced he was taken into another room for them to be removed before he walked out of the courtroom a free man.

And:

North Carolina lawmakers established the innocence commission in 2006 after a series of exonerations shamed the state's justice system. Of the hundreds of cases reviewed by the innocence agency, only three have made it to a hearing before the body's commissioners. Only one other has gone to a three-judge panel, and that was rejected.

The commission is the only agency of its kind that has the power to investigate claims of innocence and put convicts on a path to exoneration. Attorneys for Taylor implored other states to follow suit.

The News & Observer has extensive reporting, including: "Historic steps lead Taylor to freedom," "After 19 years, will the killer be found?" and "Three know Taylor's ordeal all too well."

Earlier coverage of the North Carolina Commission is here and here.  The Florida Supreme Court is currently considering establishing an Innocence Commission, as noted here; related posts are in the innocence index.  Thanks to Gerda Stein for forwarding.

Muskogee Phoenix Opposes Oklahoma Legislation

"Stop extension of state executions," is the title of an editorial in today's edition of the Muskogee Phoenix.

We disagree in principle with a proposal in the state Legislature to execute repeat child rapists. Sex crimes against children are abhorrent, and given children’s inability to defend themselves from adult abuse, we understand the inclination to treat child sex criminals very harshly.

But this editorial board reversed its position on the death penalty a few years ago. We oppose it because of the high number of criminal cases, including murder cases, that were overturned in past years. In fact, Wednesday a North Carolina man held in prison for 17 years on first-degree murder was exonerated and freed.

State Rep. Rex Duncan, R-Sand Springs, proposed and the House Judiciary Committee approved this month a bill that would allow no-parole life prison sentences or the death penalty for repeat offenders who rape children age 6 or younger. Oklahoma already has a law that calls for the death penalty for repeat child molesters if the child is younger than 14, but it has never been used.

Prosecutors’ reluctance to use the law is partly the result of a 2008 U.S. Supreme Court decision that struck down a Louisiana law that permitted the death penalty for child rape. The court ruled the law violated the Eighth Amendment, which bars cruel and unusual punishment.

The Louisiana law allowed the death penalty for first-time child rape convictions. Duncan maintains the Supreme Court would uphold his bill because it applies capital punishment to repeat offenders.

Earlier coverage of the Oklahoma legislation is here.  You can get full information on HB 2965 at this LINK.

Related posts, including all Kennedy v. Louisiana coverage, in the Jessica's Law index.  For those such as Rep. Duncan, who doubt the full sweep of the 2008 Supreme Court ruling, revisiting National News Coverage of Kennedy v. Louisiana, might help clarify.

South Dakota Legislature to Debate Repeal Today

"Bill Would Repeal South Dakota's Death Penalty," is the title of a KSFY-TV report by Jim Nelson.

Thursday morning, state lawmakers will discuss a bill to eliminate the death penalty in South Dakota. Capital punishment was re-introduced to South Dakota by Governor Bill Janklow in 1979.

In the three decades since Governor Janklow signed that bill to re-introduce the death penalty, just one person has been executed in South Dakota. Elijah Page was executed in 2007. Three inmates at the prison in Sioux Falls are currently on death row.

The basics of House Bill 1245 will be debated in Pierre starting Thursday morning. It calls for repealing the death penalty and replacing it with life in prison. Those who are currently on death row for a class A felony would have their sentence changed to life in prison.

The bill's sponsor, democratic Representative Gerald Lange says he wants to do away with the death penalty.

And:

South Dakota is the only state in our area that still has the death penalty. Minnesota banned the death penalty in 1911; Iowa's ban started in 1965.

There appears to be one discrepancy in the news report.  The South Dakota Legislature's website indicates that the House will convene at 2:00 pm (CST) today.  Audio of the House Session is webcast at this LINK.

More on HB 1245 can be found here.  Earlier coverage from South Dakota is here. 

Commission on Judicial Conduct Presses Prosecution of Sharon Keller

Special Counsel John McKetta has responed to the Special Master's Finding in In RE: Keller.  His Objections and Responses are in Adobe .pdf format.

It calls upon the State Commission on Judicial Conduct, "...to determine such consequences to Judge Keller's conduct as the Commission finds to be supported by the finds and to be just."

"Prosecutors: death row judge deserves punishment," is the title of the AP report by Paul Weber, via Google News.

Prosecutors urged a state panel Wednesday to punish a Texas judge for refusing to keep her court open past 5 p.m. to hear a last-minute appeal by a death-row inmate, and to ignore a key report that says she had been humiliated enough.

The state Commission on Judicial Conduct will decide whether to reprimand Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, for refusing to accept the late appeal in September 2007 from a twice-convicted killer.

Prosecutors who put Keller on trial last year renewed their stance that she deserves punishment.

"Judge Keller's unapologetic defense, and her adamant testimony that she would no nothing different if presented again with the same circumstances, is a total failure in any acceptance of accountability," the report to the commission read.

"Her conduct authorizes action," the report said.

The 13-member commission has not set a date to meet and decide. Keller could be removed from the bench, reprimanded or have all five charges of judicial misconduct against her dismissed.

Keller won a victory last month when state district Judge David Berchelmann, who presided over her ethics trial last fall, recommended that Keller receive no reprimand "beyond the public humiliation she has surely suffered."

And:

Berchelmann did not completely absolve Keller of fault in his report, calling some of her actions "highly questionable," but he said Keller wasn't to blame for Richard being executed.

Prosecutors said the issue of what caused Richard's execution is irrelevant to the misconduct charges. They allege Keller "cast public discredit" on the judiciary and denied Richard the right to be heard.

When Keller received the call asking whether the court could stay open late, prosecutors said she was required by court protocol to direct the call to another judge on duty that night.

"Judge Keller chose, instead, to address the communication and dispose of it," the report said.

Chuck Lindell writes, "Keller deserves punishment, prosecutors argue," at the Austin American-Statesman Focal Point blog.

Seeking to revive their case against Judge Sharon Keller, prosecutors argued Wednesday that Keller deserves to be reprimanded or removed from office for refusing to accept a late execution-day appeal in 2007.

In documents filed Wednesday with the State Commission on Judicial Conduct, which will weigh Keller’s fate, prosecutors objected to a special master’s conclusion that Keller was not to blame for failures that resulted in death row inmate Michael Richard being executed without his final appeal being heard in court.

Dismissing the findings by Special Master David Berchelmann Jr. as irrelevant and misguided, prosecutors said Keller’s conduct in Richard’s case “was clearly inconsistent with the proper performance of her duties … and cast public discredit on the judiciary.”

Keller’s lawyer, Chip Babcock, also filed objections to Berchelmann’s findings, issued last month after he heard four days of testimony in August.

Though emphatically in Keller’s favor, Berchelmann’s findings also criticized Keller for questionable judgment when she refused to keep the court clerk’s office open past 5 p.m. Richard’s lawyers had requested extra time to file an appeal based on a U.S. Supreme Court decision that morning.

Babcock urged the commission to disregard Berchelmann’s criticism as irrelevant, noting that Keller was charged with violating the code of judicial ethics and the Texas Constitution — not with exhibiting poor judgment or making questionable decisions.

And:

In Wednesday’s filings, prosecutors attacked Berchelmann’s two main conclusions:

• That Keller violated no rule or law when she declined to accept the appeal after 5 p.m.

• That lawyers with the Texas Defender Service, or TDS, were to blame for the missed appeal by failing to diligently prepare Richard’s court briefs and declining to pursue available options to file them with the Court of Criminal Appeals after 5 p.m.

Prosecutors argued that Berchelmann improperly portioned out blame as if he were presiding over a negligence lawsuit instead of charges of judicial misconduct.

“The issue here is not TDS’s conduct, but Judge Keller’s conduct,” prosecutors said. “Judge Keller’s conduct on Sept. 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided and failed to do — and not on things that she did not know.”

At the San Antonio Express-News, Peggy Fikac writes,"Special prosecutors press their case against judge."

Texas Court of Criminal Appeals Presiding Judge Sharon Keller should suffer consequences for her conduct in a death-row inmate's failed effort to file a last-minute appeal, special prosecutors in the case against her contended Wednesday.

“This is not a case as to whether the death penalty should or should not be administered. This is a case, however, concerning whether a judge should allow herself to disregard at will a long-standing established protocol of her court that is designed to safeguard proper handling of all time-sensitive communications on an execution day,” said the filing, which objected to a special master's earlier conclusions in the case.

The Commission on Judicial Conductaccused Keller of discrediting the judiciary after death row inmate Michael Wayne Richard was unable to file an appeal after the court clerk's closing time on the day of his execution, Sept. 25, 2007. Keller said the clerk's office wouldn't stay open past 5 p.m.

“Citizens' respect for the death penalty is premised on a deep faith and trust that procedures will be so carefully administered as to prevent erroneous or premature executions,” said the document signed by John McKetta, a lawyer appointed by the commission as special counsel in the case that was the subject of a high-profile hearing last year.

The prosecutors' objection said the special master who presided over the case, state District Judge David Berchelmann, focused on the “irrelevant” matter of what caused Richard's execution rather than on what they said were Keller's willful and incompetent actions.

Berchelmann faulted some of Keller's behavior but maintained that she violated no laws.

Earlier coverage begins with this post.

Skinner Execution Stayed - Reset for March 24

The state district court with authority over the Hank Skinner case has withdrawn the February 24th execution date.  The court reset the execution date for March 24th.  The order is here, in Adobe .pdf format.

Skinner's attorneys issued the following statement:

We are dismayed that the court chose, in the same order, to re-schedule Mr. Skinner's execution for March 24. This unseemly haste to execute Mr. Skinner
ignores the growing public concern and outcry over the unanswered questions about Mr. Skinner's guilt. Now, more than ever, DNA testing is necessary to resolve those doubts.

Setting a March 24 execution date also means that Mr. Skinner's pending lawsuit against the Gray County District Attorney in the United States Supreme Court, seeking the much-needed DNA testing, must now be resolved under needless and entirely artificial time pressures. Given that the District Attorney stands to benefit directly from that undue haste, it is especially disappointing that the court chose to press forward with Mr. Skinner's execution on March 24.

In addition, there is a very serious legal question whether the trial court even has the authority to set an execution date for someone, like Mr. Skinner, whosepost -conviction challenges to his conviction and death sentence have never been heard by the Texas courts.

We remain committed to obtaining the DNA testing our client says will prove his innocence, and will take every available legal step to that end."

Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas at Austin School of Law, is one of the lawyers on Hank Skinner's legal team.

The AP report is, "Texas inmate set to die next week wins reprieve," by Michael Graczyk is via the Fort Worth Star-Telegram.

State District Judge Steven Emmert on Tuesday reset Skinner's date to March 24 to resolve what lawyers said was a timing problem with the original death warrant.

The judge said the paperwork was not completed properly within 10 days of when he signed the warrant last November and Skinner's attorneys had filed a motion to have the warrant dissolved.

"I figured the safest bet was to back up and start over," Emmert said Wednesday.

Skinner has maintained his innocence and is trying to get new DNA testing on some crime scene evidence he says could exonerate him. Courts have refused similar requests over the years and he now has petitions before the U.S. Supreme Court.

Skinner's lead attorney, Rob Owen, said he was "dismayed" the punishment had been reset and not just halted.

"This unseemly haste to execute Mr. Skinner ignores the growing public concern and outcry over the unanswered questions about Mr. Skinner's guilt," Owen said. "Now, more than ever, DNA testing is necessary to resolve those doubts."

Skinner contends the likely killer is a relative of Busby who has since died.

Brandi Grissom, who had early reporting reporting on the Skinner case posts, "Skinner Execution Postponed," at the Texas Tribune.

The trial judge who initially decided Hank Skinner would die Feb. 24 — one week from today — has pushed the execution date back to March 24, says Skinner attorney Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic.

Skinner was convicted in 1995 of strangling and bludgeoning to death his girlfriend and stabbing to death her two sons. Skinner has always professed his innocence. He admits to having been in the house at the time of the murders, but toxicology tests verify that he was so inebriated from vodka and codeine that he was nearly comatose at the time of the murders. Skinner and his lawyers argue that DNA evidence found at the scene of the crime could exonerate him. Texas courts, though, have refused to allow the testing.

The state has DNA evidence from a rape kit and fingernail clippings collected from Twila Busby, the murdered girlfriend. They also have blood from knives found at the scene and hair and sweat from a man's windbreaker. Those items have never been tested.

Late last week, Skinner and his attorneys took their request to the U.S. Supreme Court. They asked the nation's highest court to force the state to allow the DNA testing and to stay Skinner's execution until the testing results are analyzed.

You can look at the order here.

Michael Landauer also post the statement from Skinner's attorney on the Dallas Morning News Death Penalty blog, "Delay for Skinner execution, but that's all?"

Earlier coverage of the case begins with this post from earlier today.

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. 

Florida's Execution of Martin Grossman

Last night, the state of Florida executed Martin Grossman.  It was Florida's first execution of 2010.

I was struck by an item from the Palm Beach Post, "State executes fifth inmate in 17 months, despite protests from Jewish groups," by Michael Bender.

Martin Edward Grossman on Tuesday was the fifth execution since Republican Gov. Charlie Crist reinstated the death penalty in July 2008.

But on the final day of his life, nearly 50,000 calls and e-mails flooded Crist’s office pleading for him to halt the execution, a spokesman said. Many of the calls came from New York, where Jewish leaders organized a petition campaign to save Grossman’s life.

The Gainesville Sun explores some of the issues raised by petitioners.

That is a significant number of citizen contacts calling for a reprieve.

The Tampa Tribune's Tampa Bay Online reports, "Grossman executed; last words are of 'heartfelt remorse'."

The Vatican, Jewish leaders as far away as Israel, and thousands of petitioners called for a stop to the execution on several grounds, including questions about whether the slaying was premeditated, Grossman's diminished IQ and his remorse for the crime.

Grossman's religious adviser, Rabbi Menachem Katz, was with him in his cell throughout the day.

Sarah Larimer wrote the AP report, via Google News.

Grossman was the 69th person executed in Florida since the death penalty was reinstated here in 1979. He was the 25th by lethal injection, the fifth executed under Florida Gov. Charlie Crist and the first in 2010.

Grossman's was the 1,195th execution in America since 1977.

Post-Conviction DNA Testing - Part 2 - Hank Skinner in Texas

In stark contrast to what is happening in Georgia in the Carlton Gary case, Texas officials seem intent on denying post-conviction DNA testing to Hank Skinner.

In Georgia, the state Supreme Court stayed his scheduled December execution, ordering a lower court to hold a hearing on the issue.  In Skinner's case, the Texas officials are thus far turning a blind eye to his requests for DNA testing that might help prove his innocence.

The case is attracting national attention as noted in these posts:

• More on the Hank Skinner Case
• Judge Sarokin on the Skinner Case and Post-Conviction DNA Testing

Skinner's Cert petition is here;  His application for a stay of execution, here.  Both are in Adobe .pdf format.

Today is the sixth anniversary of the execution of Todd Willingham, and the Texas Coalition to Abolish the Death Penalty has taken the opportunity to call for a "Statewide Day of Action" with respect to the Skinner case.  Here's an excerpt:

Today, February 17, 2010, marks the sixth anniversary of the execution of Cameron Todd Willingham in 2004. Despite ongoing doubts about the forensic evidence used to obtain Willingham’s conviction, the State of Texas is poised to carry out another execution in a case for which many unresolved questions remain. 

On February 24th, Henry “Hank” Skinner may be put to death, even though key pieces of DNA evidence that were collected from the crime scene in 1993 have never been tested.  In fact, the State of Texas has refused to conduct testing of this evidence for the past 10 years.  Hank Skinner has vigorously protested his innocence since the time of his arrest for the murders of Twila Busby and her two adult sons.

The Texas Coalition to Abolish the Death Penalty (TCADP), a statewide grassroots membership organization based in Austin, has designated February 17 a “Statewide Day of Action.”  It has called on its thousands of members and supporters to contact their elected officials to express concerns about the cases of Cameron Todd Willingham and Hank Skinner.  In particular, TCADP has urged supporters to contact Governor Rick Perry to request clemency for Skinner so that critical DNA testing can be conducted.

Visit TCADP to read the full statement.  Earlier coverage of the Skinner case begins with this post.

All Willingham coverage is available through the Todd Willingham category index.

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."

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

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

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

Post-Conviction DNA Testing - Part 1 - Carlton Gary in Georgia

Today's Columbus Leger-Enquirer reports, "Gary DNA hearing may be averted," written by Tim Chitwood.

Before resigning Tuesday, Muscogee Superior Judge Robert Johnston III again had ordered that Stocking Strangler Carlton Gary be brought to Columbus for a hearing on DNA-testing evidence in the 1970s killings, but no hearing would be needed were attorneys this week to agree which evidence to test.

District Attorney Julia Slater said such a consent agreement would preclude the hearing set for 10:30 a.m. Monday in Johnston’s court.

“We are discussing a potential agreement for the testing of certain items,” Slater said Tuesday. Gary’s attorney, Jack Martin, said he could not comment.

This updates a report from yesterday's Ledger-Enquirer, "Convicted Stocking Strangler Carlton Gary ordered to be at Monday hearing that may be unnecessary," also by Chitwood.

A judge again has ordered that convicted Stocking Strangler Carlton Gary be brought to Columbus for a hearing on DNA-testing evidence in the 1970s serial killings, but the hearing won’t be needed if the prosecution and defense agree this week on which evidence to test.

Muscogee District Attorney Julia Slater said a consent agreement of which both sides approve would preclude the hearing set for 10:30 a.m. Monday in Judge Robert Johnston’s court on the city Government Center’s 11th floor.

“We are discussing a potential agreement for the testing of certain items,” Slater said Tuesday. Gary’s attorney, Jack Martin, said he could not comment on the negotiations.

Convicted in three of the seven “Stocking Stranglings” of elderly Columbus women in the late 1970s, Gary was to die by lethal injection Dec. 16 when the Georgia Supreme Court stayed the execution and ordered a hearing on DNA testing.

In what appears to be an unrelated incident, the judge who ordered the hearing has abruptly resigned during a judicial investigation.  "Judge Johnston resigns amid meeting with investigator," also from today's Ledger-Enquirer is written by Chuck Williams and Alan Riquelmy.

Muscogee County Superior Court Judge Robert Johnston III resigned Tuesday afternoon in the midst of a meeting with an investigator for the Judicial Qualifications Commission.

Johnston, 14 months into a four-year term, confirmed the meeting and resignation Tuesday night when questioned by the Ledger-Enquirer.

More on Defeat of Virginia 'Triggerman' Legislation

Virginia's Augusta Free Press carries, "Gilbert: 'We are back to square one' on triggerman bill," by Chris Graham.

Legislation known as the triggerman bill that would extend exposure to the death penalty to people complicit but not actually participants in capital murders failed in a State Senate committee on Monday, and its proponents are blaming partisanship.

“Democrats stacked the Courts committee this year, and it shows,” State Sen. Mark Obenshain, R-Harrisonburg, wrote in an e-mail newsletter on Monday after the 9-6 party-line vote that killed his triggerman bill, SB 7, which would allow principals in the second degree and accessories before the fact to be charged as principals in the first degree in the cases of murder for hire, murder involving a continuing criminal enterprise, and terrorism.

“It wasn’t a total shock,” said State Del. Todd Gilbert, R-Woodstock, the author of a similar piece of legislation that passed the House on Feb. 3 by a 74-24 vote, saying the move by Senate Democratic leaders to stack the Courts of Justice Committee with a 9-6 Democratic majority was a sign of things to come on criminal-justice matters.

The bill had passed out of the Senate three times before falling victim to former Gov. Tim Kaine’s veto pen.

And:

Gilbert’s bill is still technically alive, but it would have to pass the Courts of Justice Committee. Gilbert doesn’t have high hopes for its passage.

Brian Evans of Amnesty International posts, "Former Executioner Helps Sink Virginia Death Penalty Expansion," at Opposing Views.

With a new Governor in place who was eager to sign the legislation, the bill was widely expected to pass, despite the fact that such an expansion would have greatly increased the risk of wrongful convictions and wrongful executions.

The drama came when former Virginia executioner Jerry Givens, who took part in 62 executions, testified against the bill. Mr. Givens told the committee how traumatic the execution process is for those enlisted to participate. Afterwards, he told The Washington Post<: “The people who pass these bills, they don’t have to do it. The people who do the executions, they’re the ones who suffer through it.”

Support for the death penalty is often inversely proportional to one’s distance from the realities of the process. Those with first-hand experience see how traumatic and degrading it can be, while those on the sidelines cheerlead for more executions comfortable in the knowledge that they will never have to deal directly with the ugly consequences.

Dallas Morning News journalist Diane Jennings noted Givens opposition in a post at the paper's Death Penalty blog, "Former executioner in Virginia opposes death penalty."

In Virginia, a state that, like Texas, is known for its use of the death penalty, legislators recently rejected several efforts to expand capital punishment. The only measure to survive was one that would allow the death penalty in cases where an auxiliary police officer is killed on duty.

But what caught my eye in this Associated Press story was a comment by the state's former executioner, Jerry Givens of Henrico, who presided over 62 executions and now opposes the ultimate sanction.

Earlier coverage, including Givens' opposition, begins with this post.  It's not the first time that the former Virginia executioner has spoken out.

ABC News profiled Givens in 2007.  "Interview With an Executioner," was produced by Jim Avila, Mary Haris, and Chris Francescani.

Jerry Givens spent 17 years as a professional killer. From 1982 to 1999, he killed 62 people.

He was never punished. His work was paid for by the Commonwealth of Virginia.

As the state's chief executioner, Givens pushed the buttons that administered lethal doses of electricity to the condemned. He could even choose how many volts to administer. And he is the first to admit that it was largely guesswork.

"If he was a small guy, I didn't give that much. You try not to cook the body, you know. I hate to sound gross,'' he told ABC News in a rare interview.

Only a handful of executioners in America have ever spoken publicly about their experiences, and fewer, if any, have revealed the emotional toll the job can take on a person or the mind-set of the man behind the proverbial mask.

Givens told ABC News that his experiences in the death chamber have caused him to change course and oppose the death penalty.

Givens was also profiled in 2008 by Australia's Sydney Morning Herald, noted in this post.

In Maryland

John Wagner posts the current status of death penalty legislation and lethal injection regulations at the Washington Post's Maryland Politics blog, "O'Malley puts a spotlight on home foreclosures."

The issue O'Malley chose to highlight with his personal testimony last year -- the death penalty -- has been little more than a blip on the Annapolis agenda so far this year.

Though lawmakers did not repeal the death penalty last year , they instead passed a bill tightening the evidence standards in capital cases. Some want to tweak that legislation this year, but there is little appetite to refight the larger battle.

Things have also been quiet on a related front: Regulations needed to resume capital punishment in Maryland remained stalled in a legislative review committee headed by two lawmakers who oppose the death penalty.

That committee is meeting Wednesday afternoon -- but the death penalty is not on the agenda.

Earlier coverage from Maryland is here.

More on the Hank Skinner Case

David Protess, Director of the acclaimed Medill Innocence Project at Northwestern University in Chicago, was interviewed recently by the Houston Independent Media Center, broadcast on KPFT-FM.  It's online at, "Hank Skinner: Another Question of Innocence on Texas Death Row."  Rachel Clarke conducted the interview.

Hank Skinner has been on death row for the last 15 years after being convicted of killing his life partner and her two adult disabled children. As the execution date quickly approaches, a number of questions still remain. Questions that could be easily cleared up with DNA testing that the state so far has refused to grant. Dr. Protess, a professor at Northwest University, shares more about the doubts and unanswered questions that linger and makes a direct plea to Governor Perry to save Skinner's life.

The Medill Innocence Project highlights the case in the post, "Will Texas Soon Execute Another Innocent Man? Our Reporting Challenges Verdict As Clock Ticks.  An excerpt:

Texas Gov. Rick Perry is under fire for allegedly obstructing an investigation into the wrongful execution of Cameron Todd Willingham, who was put to death in 2004 -- despite forensic tests proving he did not murder his three young children.

Four years earlier, Gary Graham was carried to Texas’ death chamber defiantly proclaiming his innocence in the face of new evidence that even the murder victim’s widow called “reasonable doubt.”

Investigative stories have revealed that Ruben Cantu in 1989 and Carlos DeLuna in 1993 likely suffered the same unjust fate at the hands of Texas executioners.

Now the clock is ticking on another Texas death row inmate who has steadfastly maintained his innocence – with credible evidence to support his claim. The condemned man is Henry Watkins “Hank” Skinner, and much of that evidence was unearthed by the Medill Innocence Project and reported in the January 28 and 29 editions of the Texas Tribune, "Case Open" and "Case Open: The Investigation". Yet, Skinner faces death by lethal injection on February 24, less than two weeks from now.

Texas continues to lead the nation in executions. But will the state earn the dubious distinction of executing five innocents in two decades? Hank Skinner’s fate lies in the hands of the Texas Board of Pardons and Paroles, Gov. Perry and the U.S. Supreme Court.

Here is a synopsis of the case, spotlighting the evidence developed by Medill student-journalists who traveled to Texas’ death row and to the crime scene in search of the truth. For a more detailed account, read my testimony to the Board of Pardons and Paroles, and today's appeal by Skinner's lawyers to the Supreme Court.

Earlier coverage of the Skinner case begins with this post linking to an essay by retired Federal District Judge H. Lee Sarokin, urging the post-conviction DNA testing that could prove his innocence.

Even Texans Re-Thinking Death Penalty Due to Cost

"States weigh staggering cost of death penalty of death penalty," is the title of an MSNBC web-only report by Mike Taibbi of NBC News.  You can watch the video at the link; a commercial may stream first.

Here's a transcript of the report:

Mike Taibbi:
When four men were indicted for the August 22nd shooting of Houston surgeon Jorge Mario Gonzalez, it seemed like a clear cut death penalty case, a murder during an alleged botched kidnapping for ransom.

Travis Koehn, Austin County, Texas District Attorney:
But the main thing we need to decide is what justice calls for here.

Taibbi:
But Justice that includes the death penalty is more expensive than it’s ever been.  In one Texas study, an average of more than $2.3 million in all costs over the lifespan of each case; three times the cost of a non-death case.  Defense attorneys in the Gonzales murder case know that.  ("Executions cost Texas millions: Study finds it's cheaper to jail killers for life," by Christy Hoppe, Dallas Morning News report of March 8, 1992 cited.)

Katherine Scardino, Defense Attorney:
That's actually one of the things defense lawyers use now to try to get death off the table.

Taibbi:
And it’s a key reason why 11 of the remaining 35 death penalty states have seriously considered repeal legislation, New Mexico the only state making it official.

Richard Dieter, Death Penalty Information Center:
Where there have been studies, they’re unanimous.  There’s not one study that says the death penalty is cheaper than incarceration.

Taibbi:
Incarceration for life that is, without possibility of parole.  That’s what escaped rapist Brian Nichols wanted in a plea deal for shooting four people, including a judge in 2005.  But though the prosecutor went for the death penalty, a jury did not.  And three years and more than three million in trial costs later, Nichols was sentenced to life without parole.

In fact, capital cases have become so expensive to prosecute and defend they’ve been likened to hurricanes, tornadoes, and other natural disasters,  with their staggering costs.  There was no federal disaster relief when Jasper County Texas spent one and a half million dollars pursuing the death penalty for the three men convicted in the dragging death of James Byrd.  The taxpayers picked up the tab with two years of a 6.7% tax hike.
 
Even in Texas more people are seeing life without parole as a much less expensive and still punitive option.

Carolyn Chennault, Texas Resident:
Maybe someone imprisoned for the remainder of their life would be much more of a sentence than put to death and it’s over.

Taibbi:
That’s an option the district attorney could now consider in a county the recession has not spared.  Prison for life for one-third the price of a death sentence that might never be carried out.

Mike Taibbi, Bellville Texas.

Related posts are in the cost index.

How Many More Are Innocent?

That's the title of Radley Balko's post from last week at his Reason.com blog.  It's subtitled, "America's 250th DNA exoneration raises questions about how often we send the wrong person to prison."  Thanks to the loyal reader who forwarded.  An extended excerpt:

Freddie Peacock of Rochester, New York, was convicted of rape in 1976. Last week he became the 250th person to be exonerated by DNA testing since 1989. According to a new report by the Innocence Project, those 250 prisoners served 3,160 years between them; 17 spent time on death row. Remarkably, 67 percent of them were convicted after 2000—a decade after the onset of modern DNA testing. The glaring question here is, How many more are there?

Calculating the percentage of innocents now in prison is a tricky and controversial process. The numerator itself is difficult enough to figure out. The certainty of DNA testing means we can be positive the 250 cases listed in the Innocence Project report didn't commit the crimes for which they were convicted, and that number also continues to rise. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, but for which there was no DNA evidence to establish definitive guilt or innocence. Those were wrongful convictions in that there wasn't sufficient evidence to establish reasonable doubt, but we can't be sure all the accused were factually innocent.

Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations to fight for a test in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions—Dallas County, Texas—the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas D.A. Craig Watkins' lead, that 250 figure would be significantly higher.

If the numerator is tough to figure, the denominator is even more controversial. One of the more farcical attempts at writing off the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby."

Scalia has probably since become acquainted with the name Cameron Todd Willingham, the Texas man executed in 2004 who was likely innocent. But the justice's pique also betrays an unfamiliarity with how death penalty opposition organizations work. While Scalia is right that proof of an executed innocent would be good rhetorical fodder for death penalty abolitionists, legal aid groups aren't about to waste their limited resources hunting down mistaken executions when there are living, breathing innocents still to be discovered. Moreover, in many jurisdictions, prosecutors destroy the case files after an execution, making any post-execution investigation rather difficult. That we don't know for certain about more executed innocents doesn't mean they haven't happened.

Yesterday, Ed Brayton commented in "How Many Innocent People Are In Prison?" at ScienceBlogs.

Hear, hear. A few ideas for fixing this:

1. Establish innocence commissions in every state whose sole purpose is to review the record in every conviction and look for cases where the testimony and the evidence is conflicting, where details were left out before the jury and so forth.

2. Stop electing prosecutors -- and judges. It is the need to run for reelection that forces prosecutors and judges to be concerned about their conviction rate rather than their rate of being right.

3. Overturn last year's appalling Supreme Court decision and explicitly grant a right to access to DNA evidence for all defendants and set up a lab to provide such testing at public expense. Congress can do this without a problem (the court ruled that there is no constitutional right to such evidence, but Congress has the authority to establish a statutory right to it).

More on the Innocence Project's December report, here; related posts are in the exoneration and innocence indexes.

Book Reviews

There are new book reviews of David Dow's The Autobiography of an Execution, and John Temple's The Last Lawyer.

"David Dow's memoir, 'The Autobiography of an Execution,' is a piercing work, condemning a system, disliking the condemned," is the title of Andrea Simakis' review in the Cleveland Plain Dealer.

As you wander the bookstore or graze Amazon, don't let the title of David R. Dow's memoir send you running for "Star," the unauthorized Warren Beatty biography, or other fast-food nonfiction.

"The Autobiography of an Execution" isn't spinach lit, and it's not the work of an earnest abolitionist. This is, instead, a stinging, honest account of what it's like to defend mostly indefensible men. Dow is such a fine storyteller that he can make legal proceedings read like a thriller.

The author is a Texan who has represented more than 100 condemned clients. He's actually liked three or four. Seven of them, he writes, likely were innocent. "Wasn't it Rousseau who loved mankind and hated man? That's me. I do not want my clients to be executed, and I can't stand them."

He showers after visiting these men in prison, inmates who beat their wives to death as their children watched, or murdered women and raped them -- in that order.

Dow has written previous critiques of a screwy system of justice that allows death sentences to go forward in the face of outrageous courtroom antics: defense lawyers who slept through trials; barking-mad clients allowed to represent themselves. But while "Autobiography" works as an indictment, it's also a love letter to Dow's wife and 6-year-old son as he tries to balance his macabre vocation with family

Richard Connelly posts, "David Dow, Of UH And Death Row, Gets Some Book-Selling Help From The New York Times," for the Houston Press.

For years, UH professor David Dow has been Houston's most famous advocate against the death penalty. He's the go-to guy for quotes, and the mere mention of his name tends to rile up those who support lethal injunction (and any other method the government uses for killing convicts).

He's written a book, The Autobiography of an Execution, and he gets a thumbs-up from the influential New York Times Book Review this Sunday.

The review by Slate senior editor Dalia Lithwick is already online and is decidedly enthusiastic.

She calls it a "dark, raw memoir" that is "brilliant [and] heart-rending," although she doesn't like that legal concerns force Dow to use pseudonyms and composite chronologies in detailing the single case the book follows.

A reminder of upcoming author events:

Wednesday, February 17th – Books & Books – Miami, FL
Tuesday, February 23rd – Book People – Austin, TX
Wednesday, February 24th – Barnes & Noble – San Antonio, TX
Saturday, February 27th – Politics & Prose – Washington, DC

John Temple's book is reviewed in North Carolina's IndyWeek, "John Temple's The Last Lawyer: Grinding out justice," by Adam Sobsey.

Just before the exciting climax of The Last Lawyer, Ken Rose, the titular hero, steps down as director of the Durham-based, Indy Citizen Award-winning nonprofit Center for Death Penalty Litigation. His staff throws him an exit party, and someone asks aloud, rhetorically, "So who is Ken Rose?"

"A ripple of laughter electrified the crowd, then transformed into claps as the question sank in." But no one hazards an answer.

In hindsight, that's no surprise. Despite the title's promise that Rose is the subject of the book, and despite his manifest commitment to his work, he is less the last lawyer than the lost lawyer—lost, that is, on the reader, who experiences him as the primary puzzle among many in John Temple's impassioned, principled and streamlined yet oddly opaque book. The "single-minded and brilliant" Rose led the CDPL's appellate defense of Levon "Bo" Jones, who was sentenced to death for the 1987 murder of a Duplin County bootlegger, despite "no confession, no informant testimony, no physical evidence, no fingerprints, no DNA evidence," as Rose tells the last of a dozen judges to hear Jones's case.

But although Rose helms the ship, he stays below decks for much of its course, which is carried instead by his co-counsel (including Mark Kleinschmidt, now mayor of Chapel Hill) and an array of staff, witnesses and others.

Earlier coverage of Autobiography and Last Lawyer at the links; related posts are in the books index.