The StandDown Texas Project

Friday

I will be at the Bill of Rights Course today.  The CLE program is cosponsored by the Individual Rights and Responsibilities Section and the State Bar of Texas.

Please take the opportunity to visit some of the wonderful sites in the left-column webroll.

I'll post a version of my presentation on Methods/Procedures to Obtain Compensation for Wrongful Convictions.

Getting Facts Straight in Texas Murder Case

That's the title of an editorial in today's Fort Worth Star-Telegram concerning the case of Hank Skinner.  LINK

Texas Death Row inmate Henry W. "Hank" Skinner, convicted in 1995 of a gruesome triple murder in Gray County, has spent years trying to get DNA tests on evidence collected after the 1993 killings.

Skinner insists that he didn't kill his girlfriend or her two adult sons at the home they shared and that the testing would prove it.

But the Gray County district attorney's office has maintained that Skinner could have had the testing before his trial and used the evidence then, and because he didn't it's too late. Texas and federal courts have ruled in the DA's favor.

The Texas Board of Pardons and Paroles unanimously recommended against clemency for Skinner, and Gov. Rick Perry refused to issue a 30-day reprieve.

But in March, after Skinner had eaten his "last meal" and was about an hour away from lethal injection, the U.S. Supreme Court granted a stay of execution so it could study his petition. And this week the justices agreed to grant full review of the issue his lawyers raised: whether prisoners can use a federal civil-rights law to request DNA testing after their convictions.

And:

The Supreme Court's decision, which probably won't come until 2011, could bring some consistency to current law. As his lawyers argued in their petition, prisoners in most of the country can raise a claim like Skinner's, while those in seven states, including Texas, cannot.

More important, a ruling that led to thorough DNA testing in the case could lead closer to the truth about who brutally bludgeoned Twila Busby and stabbed Elwin Caler and Randy Busby in their Pampa home on New Year's Eve 1993.

As Skinner's petition argues, "DNA testing not only serves the interests of the innocent but also provides much-needed closure to victims and their families by either confirming the conviction or, in the event of exoneration, positively identifying the actual perpetrator."

There must be finality to convictions, especially in murder cases. But getting the conviction right is essential.

Earlier coverage of the case begins with this post.

Judge Fine Remains on Case in Harris County

"DA's effort to recuse judge in murder case rejected," is the title of Brian Rogers report in today's Houston Chronicle.

A Houston judge who declared the procedures surrounding the death penalty unconstitutional in March, then rescinded his ruling to hear more information, will stay on the case, a special judge has ruled.

State District Judge L.J. Gist denied the district attorney's motion to recuse Kevin Fine, who presides over the 177th state District Court.

“It is the finding of this court that the totality of evidence does not support the state's motion to recuse Judge Fine nor that his impartiality might be reasonably questioned,” Gist wrote.

Gist said he filed the denial Tuesday, but clerks said they had not received it until Wednesday.

On April 1, Harris County's District Attorney Pat Lykos asked that Fine be recused after he ruled that the Texas capital murder statute violates due process provisions of the U.S. Constitution.

“A reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of Judge Fine,” according to court documents filed by prosecutors.

If Fine rules the same way after hearing arguments on the issue and his ruling survives appellate review, it will take the death penalty off the table for John Edward Green.

Earlier coverage of the case begins with this post.

Bishop Scott Jones on Capital Punishhment

His essay, "Why I oppose capital punishment: 4 reasons beyond UMC's position," is in Faith in Action, the newsletter of the United Methodist Church General Board of Church & Society.

From time to time, we United Methodists voice our beliefs about how Christian teaching impacts issues of morality and social justice in our society. We have done this to oppose gambling, smoking, alcohol and drug abuse, racism and sexism. As bishop, I have sometimes used my position to express our [denomination’s] teaching when I thought it would make a difference and bring our [members] together around its core beliefs.

And:

Our Social Principles are eloquent about the sanctity of human life and how capital punishment undermines our society’s values. I will be adding four additional arguments, however, to what our church officially teaches.

The first is the fact that recent developments in DNA technology have shown that people on death row were wrongly convicted. John Grisham’s The Innocent Man: Murder & Injustice in a Small Town is a powerful, true story about how police misconduct and jury bias made a mistake that only a federal judge could correct. Killing a convicted person forever removes the possibility of fixing such a mistake. The uncertainty of even our best evidence ought to stop us from delivering a final judgment.

The second argument is about the unfairness of our legal system. Wealthy people get the best legal representation and the fairest trials. Poor people relying on court-appointed attorneys are often poorly represented. The poor are much more likely to be convicted of capital crimes even when all other factors are weighed.

The third argument is economic. Death penalty cases, along with appeals, are incredibly expensive. They consume state money and court time when our state budget is already suffering from an economic downturn. The state budget is reducing the amount of money for senior-citizen care, for K-12 schools and for economic development. To continue spending money for capital punishment is to misplace our priorities.

Fourth, I believe life in prison without parole is an adequate and possibly harsher punishment for the most serious crimes. A lifetime behind bars is both punishment and an opportunity for repentance. It is a punishment because the person lives every day with the wasted opportunities and the drastic limitations of prison life. It is an opportunity because they have time to make their peace with God and commit their lives to Jesus Christ as Lord and Savior.

Related posts are in the religion index.

Adam Cohen on the Hank Skinner Case

Cohen writes, "In Death-Penalty Cases, Innocence Has to Matter," for Time magazine.  He's a lawyer, a former Time writer, and a former New York Times editorial board member.  Here are extended excerpts:

Hank Skinner, who is on death row in Texas, had a simple request. Before the state took his life, he wanted to test DNA evidence from the crime scene that could prove he was wrongly convicted. Texas prosecutors, whose love for the death penalty is legendary, refused.

Skinner then sued, claiming that federal civil rights laws gave him a constitutional right to do the testing. A federal appeals court ruled against him. (See TIME's death penalty covers.)

On Monday, the U.S. Supreme Court agreed to hear Skinner's case. That's good news. The Justices should use the case to expand the right to do DNA testing. But Skinner's case also gives the court a chance to confront a disturbing aspect of the nation's approach to the death penalty: the fact that the legal system does not always seem to care whether the people it executes are actually guilty.

And:

It's not hard to believe Skinner could have been wrongly convicted. With the rise of DNA evidence, we now know that people are falsely convicted of crimes, including capital crimes, all too often. According to the Death Penalty Information Center, 138 people have been released from death row since 1973 with evidence of innocence. (Read "The Death Penalty: Racist, Classist and Unfair.")

Skinner has tried for 10 years to get access to key pieces of biological evidence — including his girlfriend's rape kit and two knives that may have been used in the killings. After prosecutors turned him down, Skinner sued, arguing that the refusal violated due process and constituted cruel and unusual punishment.

The U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, rejected his claim in a brief decision. The judges focused on legal fine points without engaging the larger injustice of the situation — that Texas was seeking to execute a man while denying him access to evidence that could exonerate him.

Skinner's case never should have gotten this far. When someone facing the death penalty asks for relevant evidence for DNA testing, the state's answer should simply be yes. After all, the government's interest is not in seeing people put to death or in reflexively defending criminal convictions. It is in making sure that the guilty are punished and the innocent go free.

Prosecutors do not always see it that way. They defend all sorts of practices that call into question the reliability of the convictions they obtain. A while back, in an infamous case, Texas fought to execute an inmate even though his lawyer slept at his trial — repeatedly, and for long stretches of time. The Fifth Circuit ultimately ruled that the defendant was entitled to a new trial.

This callousness about death-penalty cases is not limited to states like Texas — or to prosecutors.

Supreme Court Justice Antonin Scalia set off a firestorm last summer when he wrote a dissent — joined by Justice Clarence Thomas — that the highest court in the land is not necessarily concerned with whether a person facing execution had actually committed the crime. The court "has never held," Justice Scalia wrote, "that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a ... court that he is 'actually innocent.'" Scalia was taking issue with the court's ruling that a lower court give Georgia death-row inmate Troy Davis a new hearing.

This idea that the Constitution allows innocent people to be put to death should be abhorrent to anyone who cares about justice. As Harvard Law School professor Alan Dershowitz pointed out, Justice Scalia seemed to be saying that if a man was convicted of murdering his wife and then showed up in court with the wife, who was still alive, seeking a new trial, it should not matter. As long as the man's conviction was procedurally proper, Justice Scalia apparently believes, he should still be executed.

Earlier coverage begins with this post.  More on Justice Scalia's dissent and Professor Dershowitz' response last year is here and here. The Supreme Court's 1993 ruling in Herrera v. Collins, from Oyez, deals with the question of innocence.

Brandi Grissom's two-part series in the Texas Tribune in January, noted here and here, brought the facts of the Skinner case to the attention of many people for the first time.

Texas Execution

Texas carried out its 11th execution of the year, last night in Huntsville.  It was the state's 458th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 23 executions in the nation in 2010, and 1,211 executions since 1977.

Michael Graczyk files the AP report, "Collin County man executed in 1991 shooting death of wife," via the Fort Worth Star-Telegram.

A Collin County man, asking forgiveness for killing his estranged wife, was executed Tuesday evening for forcing his way into a neighbor's apartment and shooting his wife not long after he had been released from jail on bail on a child molestation charge.

When a warden asked whether he had a final statement, John Alba, 54, said, "I wish I could go back and change it, but I know I can't."

According to TDCJ, six more executions are scheduled in Texas during 2010, including three next month.  More execution dates will likely be set by state district courts this year.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

Mark Osler on Capital Punishment

"Jesus Christ, Capital Defendant," is the title of his latest essay on Huffington Post.  Osler is a professor at Baylor Law and a former prosecutor.

In the Fall of 2000, I moved from Detroit to Waco, Texas, leaving a job as a federal prosecutor to teach at Baylor Law School. There were many changes to adjust to -- including the highly Christianized political culture in Texas and the fervent support for the death penalty that has made Texas the centerpiece for capital punishment in the Western world.

One day, sitting in church and preparing for communion, the juxtaposition of these two Texan mindsets became clear in my head -- the same Texas that held firm for the death penalty also was dominated by a faith that had at its center a wrongful execution. I walked out of church pushing the two ideas together, and soon they meshed. Shortly thereafter, I came up with what might be the worst idea ever by an untenured faculty member at a Baptist university -- I would stage the trial of Christ in that Baptist church, under Texas capital punishment rules.

And so we did. I recruited my mentor and colleague Bill Underwood (now the President of Mercer University in Georgia) to be the other attorney in our drama. He agreed, with one caveat: He would be the defense attorney, leaving untenured me to prosecute Christ in the long shadow of Baylor, the world's largest Baptist university.

Over the course of four weeks we selected a jury, made opening statements, presented witnesses, and made our arguments before leaving the congregation to deliberate. In the end, it was a compelling and dramatic experience for all of us. Not one but two members of the congregation had in fact served as the forepersons of juries that had each condemned a prisoner to death, adding to the gritty reality of the dialogue. My intent had been to confront politics with faith, and that project was successful. If nothing else, after our trial the idea of capital punishment could not be divorced from Christianity for those of us who were there.

My own journey was not done, though. I am someone with sympathies to the arguments for capital punishment and continue to believe that many of those arguments are principled. To further explore the idea I began to write a book, and it was this project that produced Jesus on Death Row (Abingdon, 2009).

And:

...I do think that there is something powerful in simply considering Christ as a criminal defendant. That subtle change in perspective can change worlds. No, Christ was no murderer. He was the opposite of the venal criminals who largely populate death rows. Yet, it is at Christ's invitation that we visit him when we visit those in prison, and I would imagine that there is no exception for death row. If it was God who wrote the story of Jesus as a criminal defendant, then it was God who told us that how we treat criminal defendants is important, and we need to heed that message even when it runs against our most fervent urge towards retribution and finality.

Earlier coverage of Osler and his book begins with this post.

Editorial Roundup

"Execution pace shouldn't be rising," is the title of an editorial in today Middletown Journal in Ohio.

There’s something decidedly odd about Ohio’s death penalty situation.

Having executed five people this year, with another six scheduled, and with two more scheduled for next year, the state is running behind only Texas in putting people to death. The two states are in a class by themselves.

The reason is not that Ohio has suddenly decided to get tough. Quite the contrary. This state has gone the direction of much of the country. Only one person was sentenced to death last year. More convicts are getting life-without-parole, an option the state moved to in the 1990s.

With DNA evidence having vindicated a fair number of convicted murderers, and with the public seeing life-without-parole as a real alternative, public pressure to execute has somewhat waned.But inertia is at work. Some cases that have long been in the works under old law and practices have continued to grind through the courts.

A constitutional amendment was passed in 1995 that streamlined the appeal process. That’s one reason some defendants who were convicted in the 1980s and 1990s have exhausted their appeals at about the same time.

Meanwhile, a moratorium that was placed on executions for a year and a half starting in 2007 created a backlog.

Ohio Supreme Court Justice Paul Pfeifer says that people are on the execution list these days who wouldn’t be if they committed their offenses today.

He made that argument to the Columbus Dispatch, which called him the “father of Ohio’s death penalty.” He was in the state Senate when the law was created in 1981, to replace an older one that had been found unconstitutional.

However, that 1981 law did not have a life-without-parole option (though Justice Pfeifer says he favored one).

And:

Although Americans still disagree about the death penalty, the practice of using it only sparingly has a lot of support. It’s the course Ohio has, in effect, decided upon.

That fact ought to count for something, even in cases of people who were convicted before.

"Death penalty: If used, do it right," is the editorial from Mississippi's Jackson Clarion-Ledger.

When it comes to the imposition of the death penalty in Mississippi, time is money. Is that too blunt?

he complaint that there is too long an interim between the commission of a capital crime, a defendant's conviction and death sentence and the imposition of the punishment is a common one. But the hard truth is that Mississippi taxpayers who complain about that long interim bear some responsibilities for it.

If Mississippians want an expedited death penalty system in this state then they must first invest in that system.

In an effort to speed executions and remove the financial strain of death penalty cases from counties, the Legislature in 2000 created an Office of Post Conviction Counsel in death penalty cases. A 2005 law created the Office of Indigent Appeals, which now handles appeals for indigent defendants convicted of noncapital crimes. But that system has been plagued by problems and allegations that cases were intentionally sabotaged.

The Office of Capital Defense Counsel originally received a General Fund appropriation. But because of funding shortages the office has never operated at full staffing. The 2005 Legislature voted to establish a $1.89 assessment on all criminal convictions, including traffic violations, to fund the office. But critics say the assessment is inadequate to fully fund the office.

In 2005, Mississippi Supreme Court Justice James E. Graves wrote: "In essence, the state of Mississippi has failed to establish or fund a system of indigent defense that is equipped to provide all defendants with the tools of an adequate defense and has therefore fallen short of its constitutional obligation."

Very little has changed since Graves wrote that assessment.

And:

If Mississippi wants faster executions, there is a cost to the taxpayers to pay all the expenses that the death penalty dictates.

Earlier coverage from Ohio and Mississippi is at the links.  Related posts are in the editorials index.

Texas, the Death Penalty, and God's Will

That's the title of a post by Pastor Matt Idom at Huffington Post.  LINK  He's the Senior Pastor at First United Methodist Church of Bryan, Texas; where he posts his sermons.

Regarding the murder trial that has dominated our local print and broadcast news, a reporter writes in the local newspaper, "[J]urors will be asked to answer two questions: Is [the defendant] a continuing threat to society? And are there any mitigating circumstances that warrant sparing his life?"

The headline over the article read "Guilty of Murder." That was contested by neither the defense nor the news. We knew that, thank you. Guilt has never been the question in this trial. The case has been built around the final outcome and ultimate sentencing of one who admitted to committing murder.

Mitigating circumstances? I've read carefully the articles covering the trial and the unwarranted deaths of two beautiful young adults. The defense has worked deliberately to set the stage to suggest that there are indeed mitigating circumstances that would eliminate the death penalty as an option. Their success will mean life in prison with no parole. The prosecution, on the other hand, delivered to the jury an equally compelling argument that no circumstances would warrant anything other than capital punishment.

And now twelve people will weigh that question of "mitigating circumstances" within the boundaries of Texas law and, in a short time, render a decision.

But what if capital punishment was not an option? What if the death penalty was not on the table?

In such a case, where guilt was confessed and "easily" proven, there would have been fewer days in the court and a concise judgment rendered, followed by an equally decisive punishment. I can only assume that what this trial is really about is the death penalty.

I can't help myself; it is the "Christian" in me, so maybe you will forgive me my opinion, but I do not believe that capital punishment belongs in our world. I believe we are all measured not by mitigating circumstances but by grace.

And:

Victims are compelling, especially those left behind in grief. We are right to scream for justice on their behalf. I would want the rafters to explode with the demands of justice if it were my children. There is no more precious altar in my life. But even my love for them cannot overshadow God's love for me or God's love for the one who commits the crime. And as much as I wish I could persuade God to deny his love to people that kill other people, I cannot. My pain and suffering can never outweigh God's desires or neutralize God's ultimate will portrayed through the atonement. The cross is still the cross.

The arguments of "crime determent" and "continuing threat to society" are masked justifications for a human response to justice, not a divine one. Assuaged by opinion polls and election viability, our state legislators and governor defend capital punishment as a just and moral response.

Thankfully for all humanity, God is not so easily persuaded.

And as we continue to slosh our way through a proverbial "dark age" of understanding and humanity in Texas with regards to our passion for the death penalty, all the mitigating circumstances of our lives will never be able to convince this God of grace otherwise.

Related posts are in the religion index.

Texas Execution

Texas is scheduled to carry out its 11th execution of the year, tonight in Huntsville.  It would be the state's 458th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 22 executions in the nation in 2010, and 1,210 executions since 1977.

The AP reports, "Allen man is set to die tonight in wife's slaying," in the case of Rogelio Cannady,  It's written by Michael Graczyk, via the Dallas Morning News.

An Allen man who was convicted in the 1991 slaying of his estranged wife is scheduled to be executed today.

John Alba, 54, will be the 11th Texas inmate executed this year unless his attorneys succeed with an appeal filed Monday in state court.

The U.S. Supreme Court refused last week to hear an appeal in which Alba's attorneys argued that his death sentence violated his civil rights because prosecutors emphasized the fact that Alba is Hispanic and his slain wife was white when they questioned potential jurors.

And:

Convicted of capital murder and sentenced to death, Alba won a new punishment trial in 2000 after then-Texas Attorney General John Cornyn said a review of the case showed a psychologist improperly testified that jurors should consider race in deciding his punishment.

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

According to TDCJ, six more executions are scheduled in Texas during 2010, including three next month.  More execution dates will likely be set by state district courts this year. 

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

El Paso Fires County's Medical Examiner

Dr. Paul Shrode's inflated resume already had him in hot water.  His work in an Ohio death penalty case was the tipping point.

The El Paso Times reports, "County fires Chief Medical Examiner Paul Shrode: Ohio Parole Board's ruling spurs decision."  It's written by Marty Schladen.

A majority of the County Commissioners Court stuck by Chief Medical Examiner Paul Shrode through three conflicting résumés and more than two years of questions about his credibility. All that changed Monday when court members fired Shrode on a 3-1 vote.

They acted after the Ohio Parole Board voted 4-3 last week to recommend clemency for a death-row inmate, citing problems with testimony Shrode gave against him in 1997.

County Judge Anthony Cobos and Commissioners Anna Perez and Veronica Escobar voted to dismiss Shrode immediately. Commissioner Dan Haggerty voted to keep him on the job. Commissioner Willie Gandara was absent on county business.

Now the commissioners must begin the search for another medical examiner.

District Attorney Jaime Esparza also is reviewing cases involving Shrode to see if convicts are likely to challenge his testimony.

"I don't think we'll see a rush to review his cases," Esparza said.

But Shrode probably is not done testifying in El Paso County courts. Defendants could call him in cases in which Shrode produced autopsy reports, Esparza said.

If Shrode testifies, taxpayers will be on the hook to pay his time and expenses, Esparza said.

He declined to say whether he still had confidence in Shrode. Esparza had publicly supported Shrode when his credentials were questioned in prior public meetings before the commissioners court.

And:

His troubles in El Paso began in August 2007, when Assistant County Attorney Bruce Yetter called Shrode to testify in a child protection case. Yetter introduced Shrode's résumé as a court exhibit. One entry on the résumé Shrode prepared said he had a "graduate law degree" from Southwest Texas State University.

Attorney Theresa Caballero cross-examined Shrode. She remembered that Southwest Texas State had no law school, so she asked: "Do you have a law degree, doctor?"

"Not in the sense of a law degree from a school of law, not like you," Shrode said.

He then admitted under oath that he had no law degree or diploma.

But in the résumés Shrode had submitted to El Paso and Harris counties, he claimed to hold a "graduate degree in law."

Later, after being questioned by Caballero, Shrode produced another résumé. That one said that he had a degree in law from a school of political science and that he was a member of the State Bar of Texas from 1979 to 1983. A third résumé by Shrode said that he had a "degree in law ... not a law degree" and that his bar membership was as a paralegal.

The State Bar of Texas had no record of Shrode being a member, either as an attorney or a paralegal.

The article notes that Shrode was the county's highest paid employee at at more than $254,000 a year. 

"Embattled El Paso county medical examiner fired," is the title of Alicia Caldwell's AP report, via the Dallas Morning News.

El Paso County's medical examiner was fired Monday following years of questions about his resume and qualifications.

Dr. Paul Shrode, who testified in an Ohio capital murder case where officials are now recommending the death sentence be overturned, was released from his job after a 3-1 vote by county commissioners, said commissioner Veronica Escobar.

Questions about Shrode's qualifications have swirled since he acknowledged in 2007 that he lied on his resume about having a law degree. Last year, the county was notified that Shrode was no longer eligible to become board certified in pathology, despite his claims of having received the certification years earlier, Escobar said.

And:

Defense lawyers in Ohio challenged his testimony in a 13-year-old capital murder case, which prompted the Ohio Parole Board to recommend that Richard Nields' death sentence be overturned. He is scheduled for execution June 10.

The Ohio board, which ruled 4-3 in favor of recommending that Gov. Ted Strickland convert the death sentence to one of life without the possibility of parole, questioned the validity of medical testimony from Shrode during Nields' 1997 trial.

Shrode, who was training in a medical fellowship at the time, testified that bruising on the victim's neck showed that he beat the woman before strangling her 15 minutes later. A deputy coroner who oversaw Shrode's work at the time told the parole board that science didn't support that conclusion.

Lawyers for a Texas man scheduled to be executed July 1 told the El Paso Times they are also reviewing the Ohio case and plan to challenge Shrode's testimony against Michael James Perry, who was convicted of killing a woman in Montgomery County, north of Houston.

The Courier of Montgomery County reports, "El Paso ME’s firing could impact Perry execution," by Nancy Flake.

The firing of the El Paso County medical examiner Monday for falsifying his resume could impact the appeal for a Montgomery County man scheduled to die by lethal injection July 1.

El Paso County commissioners fired Dr. Paul Shrode in a 3-1 vote during their regular meeting Monday, a county official said. Shrode, who has been the medical examiner there since 2005, testified in the 2003 capital murder trial for Michael James “Romeo” Perry.

Perry was convicted for the October 2001 shooting death of Sandra Stotler, 50, a nurse at Conroe Regional Medical Center. Jason Burkett, an accomplice who was convicted in the murder of Stotler, her 16-year-old son Adam Stotler and his friend, Jeremy Richardson, received a life sentence.

And:

Attorneys for Perry did not return calls seeking comment Monday afternoon, but have previously told The Courier they are “examining options” for an appeal.

Earlier coverage from El Paso is in this post; more on the Ohio case, here.  Related posts are in the forensics index, including:

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

News Coverage of Hank Skinner Cert Grant

Brandi Grissom writes, "Justice Delayed," for the Texas Tribune.

Death row inmate Hank Skinner  bought himself some time Monday when the U.S. Supreme Court agreed to take up a technical issue in his case, but legal experts say he's unlikely to escape his ultimate punishment.

Skinner is asking the High Court to address a procedural question on which courts across the country have split: whether he should be allowed to press a federal civil rights lawsuit seeking to have additional DNA evidence in his case tested instead of pursuing a writ of habeas corpus. The answer to what might seem to be a simple procedural question could have far-reaching implications for others like Skinner who claim innocence after they've been convicted. A habeas corpus claim requires a defendant to prove he was wrongly imprisoned. Skinner's argument is different: He's asserting a constitutional right to prove he's innocent despite a jury's decision otherwise in a trial conducted without legal error.

The Supreme Court has for years avoided ruling that such a right exists, and it won't take up that core question now. A decision in Skinner's favor, rather, would merely allow him to raise that question in lower courts under a civil rights claim.

And:

Skinner argues that DNA evidence that police gathered at the scene of the 1993 triple murder — a knife, a rape kit, a man’s windbreaker and other biological material — could show he is innocent. The material was never tested because other DNA evidence that was tested had helped to implicate Skinner, and his original trial attorney did not want to take the chance that more testing would do the same. An earlier appeal of Skinner's based on claims his original lawyer was ineffective failed. And Texas courts have denied Skinner's requests under habeas corpus laws to test the evidence. But in March — about an hour before he was set to walk into the death chamber — the Supreme Court issued a stay, and now it will decide whether to allow him to proceed under federal civil rights law.

Skinner’s lawyers filed the civil rights lawsuit — alleging that his constitutional rights were violated by the state’s unwillingness to allow him access to the untested DNA evidence — as his options under habeas corpus were running out. The Fifth Circuit Court rejected his case. The court said Skinner’s pursuit of DNA evidence is aimed at getting his sentence overturned and so it must be a habeas case, not a civil rights case. Skinner’s lawyers argue that he should be allowed to bring the case under civil rights laws because the DNA testing wouldn’t necessarily lead to a reversal of his conviction. There’s no guarantee that he would be granted testing by the lower federal courts. Even if lower courts were to order testing — and the results showed he was innocent — that doesn’t mean automatically Skinner would be taken off death row, his attorneys argue.

Gray County District Attorney Lynn Switzer, who is named in the lawsuit and is the most recent prosecutor to deal with Skinner's case, released a statement Monday expressing frustration with the case, which has dragged on for more than 15 years. In the statement, published online by KVII in Amarillo, Switzer said that she remains in contact with the victims' family and friends, and they oppose allowing additional DNA testing. Skinner had a fair trial, she said, and the jury's decision should be respected. "If defendants are allowed to 'game the system' then we will never be able to rely on the finality of the judgments entered in their cases," Switzer said.

Habeas corpus claims typically are ones that could lead to a defendant's sentence being overturned after proving that he was wrongfully imprisoned. Civil rights claims, on the other hand, usually allow a defendant to prove his constitutional rights were violated in some way during or after trial and don't always seek to reverse his sentence. Five circuit courts allow defendants to bring DNA testing requests under federal civil rights law, but two circuit courts — including the Fifth Circuit Court of Appeal, which has jurisdiction over Texas and Skinner's case — require such claims to be filed under habeas corpus laws.

Grissom's two-part series in the Texas Tribune in January, noted here and here, brought the facts of the case to the attention of many people for the first time.

"Supreme Court to review Texas death row case," is the title of Michael Graczyk's AP report, via the Austin American-Statesman. 

The U.S. Supreme Court agreed Monday to decide whether a Texas death row inmate should have access to evidence for DNA testing that he says could clear him of three murders.

The justices said they will use the case of Hank Skinner, who was as little as an hour away from being executed earlier this year, to decide whether prisoners may use a federal civil rights law to get DNA testing that was not performed before their convictions.

Federal appeals courts around the country have decided the issue differently.

Skinner's lawyer, Rob Owen, said having the case accepted was "the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought.

The Fort Worth Star-Telegram has, "U.S. Supreme Court to hear Texas Death Row inmate's case," by Dave Montgomery.

In hearing Skinner's case, the nine justices could decide whether prisoners are empowered to file federal civil-right lawsuits to force DNA testing after their convictions. The decision could give hundreds of prisoners a powerful legal avenue involving DNA evidence, legal experts say.

"It's extremely significant for the Supreme Court to hear this case," said Cory Session of Fort Worth, policy director of the Innocence Project of Texas. "That gives us a lot of hope for other cases down the pike."

Session is the brother of Tim Cole, who died in prison for a sexual assault he didn't commit. The actual assailant confessed to the crime, and Cole was ultimately cleared by DNA testimony and exonerated. Gov. Rick Perry granted Cole a posthumous pardon this year.

Skinner's case received national attention after the Medill Innocence Project at Chicago's Northwestern University began investigating and interviewed a star witness who recanted her testimony. Skinner said the real killer was Busby's uncle, Robert Donnell, who had a violent streak and made unwanted sexual advances toward Busby, according to media reports. Donnell was killed in a car wreck in 1997.

"High court DNA decision gives Texas killer hope," by Allan Turner in the Houston Chronicle.

The high court stayed Skinner's March 24 execution just one hour before he was to be put to death. The Pampa man's case became an international cause celebre among death penalty opponents after Chicago journalism students found new witnesses and pointed to potentially important evidence that had not been DNA tested.

Skinner consistently has maintained innocence.

Skinner's lead attorney, Robert Owen of the University of Texas' Capital Punishment Center, said the decision to take up the case is “the necessary first step to our eventually obtaining the DNA evidence that Mr. Skinner has long sought.”

Over a period of 10 years, Owen said in his petition to the court, Skinner has made repeated efforts to obtain DNA testing through habeas corpus petitions. Bloody clothing and other evidence that were tested for DNA provided mixed results for Skinner's case.

“We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit,” Owen said.

"Court to hear Texas death row inmate DNA case," is the Reuter's dispatch.

"Hank Skinner case headed to the U.S. Supreme Court.  Medill Innocence Project student reporting will go before the court for the first time," is the title of Brian Rosenthal's report in the Daily Northwestern.

Two months after coming within 47 minutes of being executed and 10 years after enlisting the help of the Medill Innocence Project, Henry “Hank” Skinner saw his chances of proving his innocence dramatically improve Monday.

In a two-line, unsigned order, the U.S. Supreme Court announced it will hear oral arguments on Skinner’s case, probably during the court’s 2010 term, which begins in October. It will be the first case involving a “heavy” amount of Innocence Project reporting to go to the high court, though it has been involved in two other Supreme Court cases, said Medill Prof. David Protess, who leads the project.

The Supreme Court accepts only about 1 percent of requests to hear a case, Northwestern political science Prof. Mark Iris said.

“This is like winning the lottery,” Protess said. “It is a terrific development, and my students and I who have investigated this case for 10 years are thrilled.”

Twelve NU students, including four current ones, developed most of the evidence in the brief filed with the Supreme Court, he said.

At issue in this case is whether the 47-year-old Skinner, who in March found out his execution was being delayed while eating his last meal, is entitled under federal civil rights law to request DNA tests on biological evidence, Protess said.

The Skinner case was also mentioned in national stories on yesterday's Supreme Court actions.  Adam Liptak's "Black Firefighters’ Claim Was Timely," Justices Say," in the New York Times has, "DNA Evidence."

The court agreed to hear an appeal from Hank Skinner, a death row inmate in Texas who seeks access to DNA evidence that he says could prove his innocence. In March, the court granted a stay of execution less than an hour before Mr. Skinner was to be put to death for the murder of his girlfriend and her two sons.

Prosecutors have blocked Mr. Skinner’s requests to test blood, fingernail scrapings and hair found at the scene of the killings. Mr. Skinner maintains he was sleeping on a sofa in a stupor induced by vodka and codeine when the killings took place on New Year’s Eve in 1993.

Robert C. Owen, one of Mr. Skinner’s lawyers, said the court’s decision to hear the case, Skinner v. Switzer, No. 09-9000, “represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought.”

Last year, in District Attorney’s Office v. Osborne, the Supreme Court rejected what it called a free-standing constitutional right of access to DNA evidence. Mr. Skinner sued under a federal civil rights law known as Section 1983, and the immediate legal question before the court is whether a suit under that law is permissible here.

Mr. Owen said he hoped “to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit.”

Joan Biskupic has a brief item in, "2nd ruling on firefighter tests, death-row decision," in today's USA Today.  There is also a mention of the case in the Los Angeles Times report, "Supreme Court backs black applicants in firefighter discrimination suit," written by David Savage.

Radley Balko writes, "Supreme Court Grants Cert to Hank Skinner," at his Hit & Run blog at Reason.com.

The Court has already ruled that there is no constitutional right to post-conviction DNA testing, but Skinner's claim is that he's entitled to the testing under federal civil rights law.

Interestingly, it was Justice Scalia who first stayed Skinner's execution in March. Scalia has written in a couple of opinions now that the U.S. Constitution does not prohibit the government from executing an innocent person.

I wrote about Skinner's case in February.

Earlier coverage begins with this post.

FBI Reports Violent Crime Down in 2009

The Preliminary Annual Uniform Crime Report for 2009 is available from the Federal Bureau of Investigation.

Preliminary figures indicate that, as a whole, law enforcement agencies throughout the Nation reported a decrease of 5.5 percent in the number of violent crimes brought to their attention for 2009 when compared with figures reported for 2008. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States in 2009 decreased 4.9 percent when compared with data from 2008. Property crimes include burglary, larceny-theft, and motor vehicle theft. Arson is also a property crime, but data for arson are not included in property crime totals. Figures for 2009 indicate that arson decreased 10.4 percent when compared to 2008 figures.

The AP posts, "FBI says violent crime rate down again," via Google News.

The violent crime rate in the United States went down in 2009 for the third year in a row and the property crime rate fell for the seventh consecutive year, the FBI reported Monday.

The decline last year amounted to 5.5 percent for violent crime compared to 2008 and the rate for property crime was down 4.9 percent.

The FBI collected the crime data from more than 13,000 law enforcement agencies around the country.

According to the numbers, all four categories of violent crime declined compared to 2008 — robbery, murder, aggravated assault and forcible rape.

Violent crime in the South fell by 6.6 percent, dropped 5.6 percent in the West, declined 4.6 percent in the Midwest and went down 3.5 percent in the Northeast.

Violent crime declined 4 percent in metropolitan counties and 3 percent elsewhere, the FBI reported.

Nationwide, the murder rate was down 7.2 percent last year.

The largest decrease in murders — 7.5 percent — took place in cities of half a million to a million in population. The only increase in murders — 5.3 percent — occurred in cities with 25,000 to 50,000 people.

Charlie Savage writes, "U.S. Crime Rates Fell Despite Economy," for the New York Times.

Compared with 2008, violent crimes declined by 5.5 percent last year, and property crimes decreased 4.9 percent, according to the F.B.I.’s preliminary annual crime report. There was an overall decline in reported crimes for the third straight year; the last increase was in 2006.

The bureau’s figures are compiled from data voluntarily submitted by 13,237 local and state law enforcement agencies across the country, and measure the number of offenses reported to the authorities. A bureau spokesman declined to speculate about any explanation for the trend.

Violent crimes — like murder, forcible rape, robbery, and aggravated assault — fell in cities and rural areas alike, led by a 7.5 percent drop in cities with populations between 500,000 and a million and a 6.9 percent drop in cities with more than a million inhabitants.

The steepest decline was in robbery reports — 8.1 percent — followed by murder with a 7.2 percent decline overall. However, there were some exceptions: murders rose by 1.8 percent in rural areas, and by 5.3 percent in cities with populations between 25,000 and 50,000 inhabitants.

The Washington Post has, "Despite economy, FBI says U.S. violent crime rate is down again," by Jerry Markon.

For the third consecutive year, violent crime declined in the United States in 2009, including a 7.2 percent reduction in murder, preliminary FBI figures showed Monday.

And:

The national violent crime rate had risen in 2005 and 2006 after years of decline, sparking concerns that a focus on homeland security under the Bush administration after the Sept. 11, 2001, terrorist attacks was draining resources away from traditional crime fighting.

But crimes of violence began going down again in 2007, falling 0.7 percent that year and then another 1.9 percent in 2008. The trend accelerated last year with a 5.5 percent reduction in overall violent crime, with decreases of 8.1 percent in robberies, 4.2 percent in aggravated assaults and 3.1 percent in rapes.

Related posts are in the crime rates index.

Innocence Now

That's the title of an editorial in the Sunday edition of the Tallahassee Democrat urging the creation of a Florida Innocence Commission.  It's subtitled, "Integrity of justice system is at stake."

Florida's judicial system and its taxpayers will both have something to applaud if Supreme Court Chief Justice Peggy Quince orders creation of the much-needed Florida Innocence Commission, and if Gov. Charlie Crist signs off on a small appropriation to get it running. Both need to do their part right away.

Incoming Senate President Mike Haridopolos, R-Melbourne, moved through the $200,000 earmark this past session, and argued the merits of this approach, which other states use to help law enforcement agencies, prosecutors and public defenders avoid mistakes that lead to wrongful prosecution and incarceration.

Such errors are beyond terrible for those who spend years in prison because of mistaken eyewitness identification, false confessions, poorly handled evidence or police procedures, inadequate jury instructions or, more recently, DNA tests that prove the individual didn't commit the crime for which he or she was incarcerated.

In recent years, at least 11 innocent Florida citizens have been wrongfully convicted and imprisoned; nationwide, some 248 inmates were exonerated by DNA evidence.

And:

Former Florida State University president and onetime president of the American Bar Association Sandy D'Alemberte has led the way in promoting the "Florida Actual Innocence Commission." Its establishment is consistent with recommendations from the ABA's Florida Death Penalty Assessment Team Report of 2006 and is supported the Center for the Advancement of Human Rights at the FSU College of Law.

It is important to note that this kind of commission looks not just at death-penalty cases, but any case in which wrongful prosecution may have occurred. Nor is it intended to oppose capital punishment as such; the work of this commission is to make sure that the system doesn't commit errors or invoke punishment — from prison to death — on the innocent.

It's time to move. Governor, approve the earmark. Justice Quince, appoint the commission of prosecutors, defense attorneys, judges, law-enforcement personnel, legal scholars, legislators and victims advocates to modernize and enhance the integrity of Florida's system of justice.

Earlier coverage of the proposal begins with this post.

Will the Old South See a Wave of Executions This Year

News articles from Kentucky, Mississippi, and Tennessee examine execution dates and death warrants that may be signed soon.

The Tennessean reports, "TN may execute 4 death row inmates in the next year," written by Clay Carey.

Tennessee could execute four death row inmates in the next year.

If that happens, it would mark the first time the state has executed that many inmates in a single 12-month period in more than 50 years.

The state attorney general's office asked the Tennessee Supreme Court to set execution dates for Gaile Owens, Stephen Michael West and Billy Ray Irick. A request to execute Edward J. Harbison is expected soon.

All were convicted in the 1980s. For some of their victims' families, the delays have been excruciating.

"It's been awful to wait that long," said Kate Campbell of Andersonville, Tenn.

West was convicted in 1987 of murdering Campbell's sister-in-law and niece. The mother and daughter, ages 51 and 15, were stabbed to death.

"It was awful the way they had to die," said Campbell, 85. "I think everybody ought to be punished for what they do wrong.''

Some opponents of capital punishment and death penalty experts said the pace of executions in 2010 could well become the rule, not the exception.

"It's a definite possibility given the numbers we have on our death row and how long some of them have been there," said Stacy Rector, an ordained minister and executive director of Tennesseans for Alternatives to the Death Penalty.

There are 89 inmates awaiting execution in Tennessee, making the state's death row the 10th largest in the country. Nearly 40 percent of Tennessee's death row inmates have been there at least 20 years.

In Mississippi, the Jackson Clarion-Ledger has, "3 more may face death this year."  It's written by Jimmie E. Gates.

After two executions last week, 2010 could go down as the busiest year for the Mississippi death penalty since 1961 - evidence a 2008 U.S. Supreme Court ruling is having impact on Mississippi's death row.

Three more death row inmates could run out of appeals this year, and the next execution could be as soon as July.

State Attorney General Jim Hood said it plainly Friday in the wake of back-to-back executions of Paul Everette Woodward, 62, on Wednesday and Gerald James Holland, 72, on Thursday.

"We can expect to see more executions," Hood said.

He cited changes made during the administration of President Clinton that allowed appeals to move faster through the court system. But it was the Supreme Court's 2008 decision in a Kentucky case, Baze v. Rees, upholding lethal injection procedures that paved the way for increased execution in several states.

Mississippi has not executed more than two in any year since 1961, when five inmates were put to death.

The Lexington Herald-Leader has, "Condemned killers seek delay from Ky. governor," by Associated Press Writer Brett Barrouquere.

A pair of condemned Kentucky inmates asked the governor Friday to delay setting their execution dates as defense attorneys prepare for death warrants to be signed.

Attorneys for Ralph Stevens Baze and Robert Carl Foley filed separate letters with Gov. Steve Beshear, saying multiple circumstances should prompt a delay in setting execution dates.

Beshear's office said the requests would be considered on a case-by-case basis.

"Attorneys representing the defendants and prosecution will each have the opportunity to provide the Governor information about collateral legal proceedings," the statement said.

Public defenders Dennis Burke and David Barron said Kentucky's current economic struggles, along with several pending legal issues, should halt any execution.

And:

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

Earlier coverage from Kentucky,  Mississippi, and Tennessee at the links.

More on the Hank Skinner Cert Grant

Rob Owen, counsel of record for Hank Skinner, has issued a statement following this morning's decision by the Supreme Court to review the case:

"We are pleased that the Supreme Court has agreed to hear Mr. Skinner's appeal. That decision represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. We look forward to the opportunity to persuade the Court that if a State official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit."

Earlier coverage begins here.  The Petition for Writ of Certiorari, which the Court granted today, is in Adobe .pdf format.  Owen is Co-Director of the Capital Punishment Center at the University of Texas School of Law.

Brandi Grissom's two-part series in the Texas Tribune, noted here and here, brought the facts of the case to the attention of many people for the first time.

More on the Weis Case in Georgia

Marcia Coyle writes, "Ga. Murder Case Shines Spotlight on Nation's Indigent Defense Systems." 

Jamie Weis, accused in 2006 of killing an elderly neighbor, had two state-appointed lawyers defending him from capital murder charges for more than a year.

When the state of Georgia ran out of money to pay them, the trial judge removed them, appointing public defenders who spent nearly two years trying to withdraw.

Weis, in county jail now for four years, is asking the U.S. Supreme Court to delve into what he claims is a breakdown of Georgia's public defender system.

Weis wants the justices to make clear that "lawyers are not fungible," said lead counsel Stephen Bright of the Southern Center for Human Rights in Atlanta.

Indigent defendants, Bright said, have the same Sixth Amendment right to continuity of counsel once the attorney-client relationship is established as do those defendants with the means to hire lawyers. That right, he and his colleagues contend, was violated in the Weis case, when two appointed attorneys were removed because the state ran out of money to pay them. "I think we have the complete breakdown in this case," Bright said. "The legislature just didn't put enough money into the system and it ran out of gas."

The case is not about a breakdown in the system, countered Assistant District Attorney Robert Smith of Fayetteville, Ga. Weis is responsible for most of the delay, he said, and the Georgia Supreme Court in March correctly rejected his constitutional claims. "This case is about bringing Catherine King's killer to justice and giving the people of Pike County the opportunity to hear it," he said. "That's what this case is about."

Weis' petition for review comes at a time when an increasing number of legal challenges are being made to underfunded and overburdened state indigent defense systems. Several lawsuits are pending in Georgia, and courts in New York and Michigan recently have given the green light to class actions against those state systems for alleged failures to provide adequate legal representation.

Georgia's problems are long-standing. Twenty years ago, The National Law Journal, in a six-month investigation of the defense of capital murder defendants in six Southern states, including Georgia, found poorly trained and underpaid lawyers in a hodgepodge of standardless systems with actual disincentives to effective representation.

Georgia, however, seemed to turn a corner in 2003 when the governor signed into law the Georgia Indigent Defense Act. The law created a statewide network of public defender offices and an Office of Georgia Capital Defender to represent death penalty cases.

But state funding has never kept pace with the need, triggering the recent round of lawsuits. "All of the promise we had from this new public defender system is just evaporating," Bright said.

And:

In the U.S. Supreme Court, Bright argues this is not a counsel-of-choice issue but an issue of continuity of counsel. Only Georgia, Louisiana and two federal circuits -- the 2nd and 6th -- refuse to recognize that, once the attorney-client bond of trust and confidence has been established, counsel cannot be removed absent some extreme circumstances. "There's a whole string of [lower court] cases saying, unless the lawyer is just disabled or engages in contemptuous behavior, you can't sever the relationship," Bright said. "This wasn't about Weis' seeking preference of counsel but opposing counsel moving to remove counsel. I think the Court will be offended by that."

Criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law and ethics scholar Monroe Freedman of Hofstra University School of Law said Bright's distinction is an important and valid one. Freedman is more emphatic, saying, "It is so clear this was a violation of fundamental rights that it should be the easiest of cases and should never have occurred in the first place."

Earlier coverage of the case begins here.  Earlier coverage of Georgia-specific indigent defense issues is here; related articles are in the indigent defense index.

Supreme Court to Review Hank Skinner Case

The initial AP report is, "Supreme Court to review case of Texas death row inmate who wants DNA testing," via the Los Angeles Times.  The Court will hear the case in its next term, which begins in October.

The Supreme Court has agreed to decide whether a Texas death row inmate should have access to evidence for DNA testing that he says could clear him of three murders.

The justices said Monday they will use the case of Hank Skinner to decide whether prison inmates may use a federal civil rights law to do DNA testing that was not performed prior to their conviction.

Federal appeals courts around the country have decided the issue differently. The high court previously blocked Skinner's execution while it considered his appeal.

And:

Prosecutors argued Skinner wasn't entitled to testing of evidence that wasn't analyzed before his 1995 trial. The 5th U.S. Circuit Court of Appeals in New Orleans is the latest court to agree with prosecutors and reject Skinner's appeal.

Skinner's attorneys want DNA testing on vaginal swabs taken from Busby at the time of her autopsy, fingernail clippings, a knife found on the porch of Busby's house and a second knife found in a plastic bag in the house, a towel with the second knife, a jacket next to Busby's body and any hairs found in her hands that were not destroyed in previous testing. Only the hairs were tested previously and those results were inconclusive, according to court documents.

Earlier coverage of Hank Skinner's case begins with this post.  Skinner is represented by Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas School of Law.

Broad National Editorial Support for Graham Ruling on Juvenile Sentencing

Since the Supreme Court issued Graham v. Florida on Monday, there has been broad national praise for the ruling by editorial boards.  That's been especially true in Florida, where the record showed that most juvenile life without parole sentences had been handed down.  Here's a roundup of the editorials by state.

California
 Los Angeles Times:
  Life sentences without parole: too cruel to the young
Sacramento Bee
  Why 'throw away key' for juveniles?

Colorado
Aurora Sentinel
  High court rightfully realigns sentencing standards

Delaware
Delaware News Journal
  Simple justice gives teen offenders a second chance

Florida
Miami Herald
  High court ban on youths' life sentences right call
Florida Today
  Supreme Court ruling on teen sentencing a victory for fairness
Sarasota Herald Tribune
  Ruling on Florida case offers justice for juveniles
South Florida Sun-Sentinel
  Supreme Court ruling on juveniles is humane
Pensacola News Journal
  A Fair Chance at Freedom
St. Petersburg Times
  Court opens door to more humane justice system
Tallahassee Democrat
  Second Chances

Kentucky
Louisville Courier-Journal
  Measure of Decency

Maine
Portland Press Herald
  Supreme Court hits right balance on youth sentences

Michigan
Battle Creek Enquirer
  Holding Out Hope

New Jersey
Newark Star-Leger
  U.S. Supreme Court makes right decision on juvenile sentences
Bergen Record
  High court on inmates

Nevada
Las Vegas Sun
  Supreme Court tussles with finding the right sentence for juvenile offenders
Las Vegas Review-Journal
  Juvenile justice

New York
Watertown Daily Times
  Juvenile justice

Pennsylvania
Philadelphia Inquirer
  Fitting punishment
Daily American
  Opportunity for Review

Washington
Seattle Times
  Treating juvenile offenders differently

And then, there is this from the Washington Times contrarian view, "Juvenile injustice."

Steve Chapman's Chicago Tribune column is, "Sentencing Kids to Life."

Earlier coverage begins with this post.  Editorials in the New York Times and Washington Post are noted here.

More From Ohio

Today's News-Herald of Northern Ohio carries the editorial, "Details needed for death row review."

If one Ohio Supreme Court justice has his way, the line waiting on death row may get a little shorter.

Justice Paul Pfeifer, who played a major role in resurrecting Ohio’s death penalty law nearly 30 years ago, said the state has a backlog of old cases. Many of those would not have resulted in a death sentence had they been tried under current law, which gives juries the option of imposing a life sentence without the possibility of parole, he said.

Ohio has 161 inmates on death row and is on pace to execute a state record 11 inmates this year. Five have already been executed this year, and thus far two are scheduled for 2011.

Pfeifer, a Republican who’s running unopposed for re-election, believes all death row cases should be reviewed to see which ones warrant execution and which ones should be commuted to life in prison without parole.

When he helped resurrect Ohio’s death row law back in 1981 as a state senator, Pfeifer included a life without parole option but the Ohio House refused to go along. The state has since given juries that option.

We’re not opposed to a review of the cases, but before we can give our full stamp of approval, we feel more information is needed.

Earlier coverage of Justice Pfeifer's proposal is here.

Executions in Mississppi and Virginia

Last night, Mississippi and Virginia carried out executions.  This week has seen four executions in the span of two days.  That's the heaviest concentration since July 2003 when five men were executed over a period of three consecutive days.

The AP reports, "Mississippi executes 2nd inmate in as many days," and "Virginia executes inmate who killed 2 men."  Both are via Google News.

To date, there have been 22 executions in the nation in 2010, and 1,210 executions since 1977.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions; 457 since 1982.

Virginia has carried out 107 executions to date, second only to Texas. 

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. Texas next execution is scheduled for May 25.

Rick Casey on Juvenile Sentencing

His column in today's Houston Chronicle is, "That liberal legislature ... in Texas."

The U.S. Supreme Court on Monday barred sentences of life without parole for juveniles who committed crimes other than murder. The vote was 5-4.

This will surprise a lot of Texans — and even more outsiders — but a year ago the Texas Legislature went the Supreme Court one farther.

It barred sentences of life without parole for juveniles who commit capital murder.

And the vote wasn't even as close as the Supreme Court's.

The Senate passed the bill 30-1. The House passed it 124-21, a ratio of 6-1.

And Gov. Rick Perry signed it.

This is a rare case of the U.S. Supreme Court following Texas, not vice-versa.

The Supreme Court gave hope to 129 prisoners serving sentences of life without parole for crimes they committed as juveniles, but not a single one was in Texas. In Texas, life without parole is only given in capital murder cases.

We do have 20 juvenile offenders serving life without parole for capital murders, who were saved when the U.S. Supreme Court in 2005 ruled, 5-4, that the death penalty could not be given to those who were under 18 when they committed a crime. Of the 20, three were 15 when they committed capital murder. Four were 16 and the rest 17.

Under a Texas law that covered all capital murders, the only punishment available other than death was life without parole. Sen. Juan Hinojosa (D-McAllen) carried last year's bill, arguing that science had shown that teenagers were not mentally and emotionally fully developed and should not be classified as being beyond rehabilitation.

The law is not exactly lenient. It requires that convicts serve a full 40 years, with no reduction for good behavior, before they are even eligible for parole. What's more, it doesn't help those 20 already in prison, since it applies only to crimes committed after last Sept. 1.

And:

Defense lawyers are already talking about asking the Supreme Court to bar life without parole for juveniles convicted of murder.

It's not hard to imagine them arguing that if the Texas Legislature bans it, then it must be outside of societal norms.

Earlier coverage of the Graham v. Florida ruling begins with this post.  There's been almost universal praise for the ruling from editorial boards across the nation.  Later today, I'll link to the editorial coverage.

Mental Illness, the Criminal Justice System, and the Death Penalty in North Carolina

"Lady justice shows split personality in 2 cases," is the title of Myron Pitts column in today's Fayetteville Observer.

On July 17, 1988, Michael Hayes shot 13 people passing by his parents' store in Forsyth County, killing four.

The rampage was caused by demons in Hayes' head, his defense team argued. He was also high on drugs and alcohol.

A jury found him not guilty by reason of insanity.

Last week, he walked out of Dorothea Dix, the state mental hospital, a free man. His lawyer added that Hayes still had been wronged, pointing out that doctors ruled him safe for release 10 years ago.

One could not help but notice what happened with Hayes and contrast it to Abdullah Shareef.

Shareef ran down five men and killed one of them. Like Hayes, Shareef was diagnosed as a paranoid schizophrenic who believed that God was speaking to him or through him. The state worked for years getting Shareef to where he was competent enough to stand trial.

In March, a Cumberland County jury convicted him of murder and sentenced him to life in prison but held off giving him the death penalty that prosecutors sought.

The disparate fates of these two unbalanced men show that the state's justice system itself is schizophrenic in dealing with the dangerously insane.

The state's Jacksonville Daily News carries the editorial, "Another argument to end death penalty."

Criminologists and corrections experts say the proliferation of mentally ill people housed in the prison system has led to a logjam that grows larger and more daunting each day.

That’s because the prison system is not equipped to deal with those suffering from schizophrenia, bipolar disorder and the endless laundry list of mental illnesses with which frequent guests have often been diagnosed.

The majority of the mentally infirm housed in prison are treated with drug cocktails — massive amounts of medications designed to treat the problem on a short-term basis — then released back into the general population with little or no follow-up. It’s the perfect recipe for recidivism.

Incarcerating the mentally ill is, at best, a stopgap measure. Smaller prison units, like the Onslow County Jail, have neither the facilities nor staff to deal with inmates who suffer from extreme mental illness. Larger prison units within the state are little better at working with the numbers of mentally ill who routinely fill their cells.

But where the criminal justice system really fails those who are mentally ill is when it comes to capital punishment. States with the death penalty routinely put to death individuals whose crimes have grown out of their mental illness.

Recently, David Kaczynski, brother of the criminal known as the “Unabomber,” spoke against application of the death penalty in cases where the convicted suffers from serious mental illness. Kaczynski believes statutes that allow the mentally ill to be executed act as a deterrent to families who might otherwise turn in their loved one to keep them from committing future crimes.

Thanks to Gerda Stein for circulating

Earlier coverage from North Carolina includes this post on the state's Racial Justice Act, and this post on legislation to ban the death penalty for those with severe mental illness.

Earlier coverage of the legislation is here; related posts are in the mental illness index. 

The North Carolina legislation is Senate Bill 309 and House Bill 137.  .

California Democratic Party Platform: Repeal

Bob Egelko reports, "Dems want to scrap death penalty in California," on the front page of today's San Francisco Chronicle.

The California Democratic Party is calling for abolition of the death penalty, defying conventional political wisdom and raising an issue that its candidate for governor might prefer to avoid.

Democratic leaders have previously passed resolutions opposing capital punishment, but the party says its records indicate it has never enshrined the position in its platform - the formal statement of its principles - until this year.

The platform, approved April 18 at the party's convention in Los Angeles, includes a declaration that Democrats will "replace the death penalty with a term of permanent incarceration, which will serve to protect the public, provide swift and certain justice for victims' families, and save the state an estimated $1 billion over the next five years."

The Democrats' action drew little attention until advocacy groups, who had pressed the party for years to oppose capital punishment, issued a release last week proclaiming victory.

The platform language would not require a Democratic governor to seek abolition of capital punishment or to grant clemency to everyone on Death Row, as governors in New Mexico, Illinois and New Jersey have done in recent years.

But it means that "being against the death penalty becomes the mainstream of the party," said Christine Thomas of Sacramento, a member of the platform committee that drafted the provision.

"This suggests a major shift in thinking on the death penalty ... that this is no longer a political liability," said Stefanie Faucher, associate director of Death Penalty Focus, an anti-capital punishment organization in San Francisco.

That assertion may be tested in November, when Attorney General Jerry Brown, the presumed Democratic nominee for governor, faces one of two pro-death penalty Republicans, businesswoman Meg Whitman or Insurance Commissioner Steve Poizner.

Brown is a lifelong opponent of capital punishment who vetoed a death penalty bill as governor in 1977, calling it "a matter of conscience." He was easily re-elected a year later while voters, on the same ballot, passed an initiative broadening the death penalty law.

In 1986, Californians removed Chief Justice Rose Bird and two other Brown appointees to the state Supreme Court after a campaign that focused on their votes to overturn death sentences.

And:

California has the nation's largest Death Row, with more than 700 inmates, but has executed only 13 men since 1992, when the current law was implemented. Executions have been on hold since 2006, when a federal judge found that the state's lethal injection methods could inflict prolonged and excruciating pain on a condemned inmate.

Opponents argue that the state can no longer afford the death penalty. They cite a 2008 report by a legislatively appointed commission, including law enforcement representatives, that found taxpayers were spending $137 million a year on a system plagued by uncontrolled costs.

Earlier coverage from California begins with this post.  Notable items include:

• Judy Kerr on Cost in California
• A New Report From the ACLU of Northern California
• Cost: A Continuing Issue in California
• In California
• News Coverage of California Commission

The Lethal Injection Challenge in Kentucky

The AP reports, "Ky. judge weighs challenge to lethal injection."  It's written by Brett Barrouquere and appears in today's Lexington Herald-Leader.

A state judge said Wednesday he would soon decide whether three death row inmates have properly challenged the way the state's new lethal injection protocol was adopted and possibly on the merits of whether the method itself needs to be re-examined.

"These questions need to be answered and they need to be answered promptly," said Franklin Circuit Judge Phillip Shepherd.

The state Supreme Court in November barred Kentucky from conducting executions, finding that officials improperly adopted the three-drug injection method. The state Justice Cabinet, which oversees the protocol, adopted some changes to it and a pair of legislative committees approved the method.

The new procedure went into effect May 7, but no death warrants have been issued since. Attorneys for the state says there is nothing that prevents executions from being set.

Shepherd noted that warrants could come "at any time."

The suing inmates, Ralph Stevens Baze, Thomas Clyde Bowling and Brian Keith Moore, revived a closed lawsuit and asked Shepherd to find that Kentucky violated the state Supreme Court order in the way it adopted the new method.

Attorneys for the state say a new lawsuit may need to be filed to challenge the method, an argument Shepherd said he'll consider before weighing in on how it was adopted.

This excerpt refers to public defender David Barron, who represents the inmates:

The challenge Shepherd heard raises similar concerns to the old one. It claims the state failed to spell out how the chemicals would be injected, authorizing people not qualified to insert intravenous lines to handle the execution and not allowing death row inmates to address a public hearing about the three-drug protocol.

Barron said Kentucky's new protocol has multiple violations of high court order, including a lack of specificity about how the drugs are mixed and that condemned inmates were not allowed to speak at the public hearing on the method.

"The court is effectively saying all executions are prohibited until the protocols are properly in place," Barron said.

Combs said the regulations governing a lethal injection are specific enough to provide instruction on how to carry out an execution without being so specific as to give away security information or limit the flexibility of the execution team.

The article notes that Kentucky has carried out three executions since 1976.

Earlier coverage of the Kentucky lethal injection challenge begins here; related posts are in the lethal injection index.  More on Baze v. Rees , the 2008 Kentucky case in which the Supreme Court ruled on the constitutionality of lethal injection, is via Oyez.

Oklahoma Governor Approves Third Capital Commutation

"Oklahoma Gov. Brad Henry approves clemency recommendation," is the title of Michael McNutt's report in today's Oklahoman.

An inmate on death row for 23 years who was scheduled to be executed earlier this year had his death penalty sentence commuted Wednesday to life without the possibility of parole.

Gov. Brad Henry approved clemency for Richard Tandy Smith, 47, who was sentenced to death in 1986 for the shooting death of John Cederlund in Canadian County. The governor followed the Oklahoma Pardon and Parole Board’s recommendation.

"I am always reluctant to intervene in a capital case, and I am very respectful of a jury’s verdict, the prosecutors who tried the case and the victim’s family who suffered because of the crime,” Henry said. "However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence.”

It was the third time in his nearly eight years in office that Henry has granted clemency in a death penalty case.

In all those cases, the sentences were commuted to life without parole. Henry approved clemency in 2008 for Kevin Young and in 2004 for Osbaldo Torres, a Mexican national on death row.

Before making his decision on the board’s recommendation, the governor said he talked with attorneys on both sides of the case and reviewed Smith’s case file and all related information pertaining to his clemency hearing.

Smith had been scheduled to die by lethal injection April 8. Henry issued a stay of execution in March to study his case.

Related posts are in the clemency index.

The Execution of David Powell Will Not Serve Justice

That's what Michael King writes in the current issue of the Austin Chronicle, "Point Austin: Let David Live."  It's a must-read.

How much pain is enough to make up for irreparable harm? – David Powell

If all goes according to plan, David Lee Powell will be executed by the state of Texas, in our names, on June 15. That's the date set by state District Judge Mike Lynch at the request of Travis County District Attorney Rosemary Lehmberg.

This is an execution more than 32 years in the making, and the story exhibits the tortured legal history of many Texas capital cases. The 27-year-old Powell was first convicted of the May 18, 1978, murder of 26-year-old Austin Police Officer Ralph Ablanedo in September 1978. The first conviction was overturned for legal reasons that included prosecutorial misconduct; he was tried and convicted again in 1991, and retried for sentencing only in 1999. Only then was it revealed that Travis County prosecutors (among them then young Assistant D.A. Lehmberg) had concealed potentially exculpatory information from his defense, including their belief that a chief state witness, Powell's companion Sheila Meinert, had participated in Ablanedo's murder. Nevertheless, Powell was again sentenced to die and has since exhausted all of his appeals.

Unless Lehmberg should decide to withdraw the execution request or the Board of Pardons and Paroles recommends clemency to Gov. Rick Perry and he concurs – none of which is at all likely – Powell will be executed. Had he been sentenced to life imprisonment in 1978, Powell would have been eligible for parole in 20 years. After 32 years on death row, much of it in solitary confinement, Powell will have effectively endured – in our names – both a life and a death sentence. As Supreme Court Justice Stephen Breyer has opined, "Where a delay, measured in decades, reflects the State's own failure to comply with the Constitution's demands, the claim that time has rendered the execution inhuman is a particularly strong one."

And:

Once, there might have been doubt concerning Powell's "future dangerousness" – now there is none. When we execute Powell next month, we will be executing a different person than the one who, in an irretrievable moment of mad frenzy, committed his terrible crime. If nothing else, Powell's execution will confirm that the Texas death penalty is not about justice but revenge.

Fair-minded people can certainly hold differing beliefs about the death penalty, though in my experience the more people learn about its actual practice, the less likely they are to believe that it serves justice, certainly in any equitable way. The political stakes (especially in a sensational case like Powell's) are inevitably so high that prosecutors persistently bend the rules to get convictions. The consequent appeals strain and distort the justice system and, more cruelly, the innocent family members on all sides. Restorative justice is essentially impossible, since to avoid a death sentence the accused must not acknowledge guilt or remorse of any kind. Only when his appeals were completely exhausted was Powell able to write an eloquent letter of apology to the Ablanedo family.

"I am infinitely sorry that I killed Ralph Ablanedo," Powell wrote. "I stole from you and the world the precious and irreplaceable life of a good man."

Beyond this, Powell has been an exemplary prisoner for 32 years, teaching other inmates, consulting with experts on the Texas criminal justice system, testifying on the rights of prisoners with mental disabilities, and more. He has managed to make something useful and important of his life even in the extreme confinement of death row and the Texas prison system; to kill him now is to surrender to the nihilistic belief that there is no such thing as redemption.

But whether or not you believe that we should execute Powell, you should spend some time reviewing the background and history of his case, available at the website LetDavidLive.org, including an extended video interview with Powell on death row, members of his family, and people who have known him well. The history of the Texas death penalty is a lengthy one of obscure names and dates; it's a little less abstract when you get to know the person you're going to kill. It's undeniable that Powell took a life – "I'm so so sorry for having killed Ralph Ablanedo and stolen from him everything that he might have become," he says in the interview, "and stolen everything that he was from the people that loved him." What possible good can come from adding another name, and the inevitably reverberating sorrow, to the long list of the dead?

In December of 2009, David Powell wrote the following letter to the family of Ralph Ablanedo; Ablanedo’s wife, Judy, later married Austin Police Officer Bruce Mills, who also adopted their two children .Powell's letter to the family of Ralph Abla­nedo is posted with this story here.

Earlier coverage begins with this post.

Texas Execution - Mississippi Execution; More Set for Thursday

Texas carried out its 10th execution of the year, tonight in Huntsville.  It was the state's 457th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

Michael Graczyk writes, "Texas prisoner executed for killing cellmate," for the AP.

Condemned Texas inmate Rogelio Cannady was executed Wednesday evening for killing his cellmate while already serving two life sentences for a double murder.

Cannady, 37, from Harlingen, didn't deny fatally beating 55-year-old Leovigildo Bonal with a belt and padlock in October 1993, but he insisted the attack at the Texas Department of Criminal Justice McConnell Unit in Beeville was self defense from Bonal's sexual advances.

Earlier in the evening, Mississippi carried out its first execution since 2008, as noted in this AP report.

Woodward's execution was the first of two scheduled for this week. Gerald James Holland, 72, is to be put to death on Thursday at 6 p.m. Mississippi has not had back-to-back executions in nearly 50 years.

Executions are scheduled in Mississippi and Virginia, tomorrow.

To date, there have been 20 executions in the nation in 2010, and 1,208 executions since 1977.

According to TDCJ, six additional executions are scheduled in Texas during 2010, including one next week.  More execution dates will likely be set by state district courts this year. 

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.  

Fresh Debate on North Carolina's Racial Justice Act

Today's Greensboro News-Record carries the editorial, "Is bias law misused?"

The state's controversial Racial Justice Act, enacted in August to ensure sentencing in capital cases is based on law, not racial bias, may need tweaking in the General Assembly. But not just yet.

The legislature's current "short" session would not allow it the thoughtful debate and consideration it deserves.

A handful of Republican legislators have complained that the law, prompted by the disproportionate number of death penalty cases against black defendants, is being used by attorneys to stall judicial proceedings.

To bolster their argument, the widow of a slain Mecklenburg County police officer, at a news conference last week, said a judge has postponed the death-penalty trial of her husband's accused killer for months to allow his lawyer to gather relevant information under the new law. The officer was white, his alleged assailant black.

And:

Rep. Thom Tillis, R-Mecklenburg, wants to amend the legislation to apply only after a death sentence has been imposed. Doing so, proponents of a revision contend, would discourage frivolous bias claims as well as speed up the justice process.

Tillis told The Charlotte Observer, "It (the law) likely creates as many injustices as it corrects. It delays justice and protracts the grieving and suffering of these families of these victims."

He may be right. But remember, these very same issues were thoroughly debated during the last session, when prosecutors and several sheriffs spoke out strongly against the measure.

Judges must be vigilant that defendants in capital cases don't stray from the law's intent to achieve colorblind justice. It's too early, however, to draw such conclusions.

The law, in practice, should be studied further. Trends should be duly noted. Then lawmakers should decide if major revisions are warranted.

Of course, one way to deal with the thorny problem of sentencing fairness is to eliminate the death penalty altogether. Unfortunately, that's not likely to happen even though capital punishment is being used less in the state and enjoys waning public support.

Charlotte attorney James E. Ferguston II, writes the OpEd, "Racial Justice Act says North Carolina should do better," for today's Charlotte Observer.  Here's an excerpt:

Joseph D. Pearlman's recent opinion piece entitled "Death penalty should be colorblind" (May 13 Viewpoint) is misguided and misinformed. Mr. Pearlman suggests that the recently enacted N.C. Racial Justice Act (RJA) "perpetuates a fixation on race to the detriment of fairness and reason." Quite the contrary, the RJA represents a groundbreaking piece of legislation that will, for the first time, directly address racial bias in our criminal justice system.

The need for the RJA was clearly manifested in 1987, when the U.S. Supreme Court acknowledged in McCleskey v. Kemp, a death penalty case from Georgia, that race infected our criminal justice system. Despite this recognition, the court ruled that disparities correlated with race were "an inevitable part of our criminal justice system." Ever since McCleskey, it has been nearly impossible to address these undisputed disparities within the criminal justice system, even though the justice who wrote the opinion lived to regret his own words.

Mr. Pearlman falsely asserts that under the RJA, one merely has to be a member of a racial class to avoid the death penalty. Nothing could be further from the truth. Currently underway is an unprecedented comprehensive study of North Carolina's death penalty system that will look at not merely the race of defendants and victims, but will also take into account the many other factors that come into play in these tragic cases.

If that study shows that certain defendants received the death penalty and others did not merely because their cases were more aggravated than others, then any claim under the RJA - in other words, any claim that race had something to do with it - will fail. If, on the other hand, the data show that certain defendants have been sentenced to death, not because their cases were more heinous, but because race played a significant factor, then the RJA says that those death sentences cannot stand. Any system that allows race to play a factor in deciding who lives and who dies needs reform, and I am quite certain that Mr. Pearlman would agree.

Raleigh's News & Observer reports, "Perdue hears out widow on race law," by Mark Johnson.

Gov. Bev Perdue met Tuesday with Jennifer Shelton, widow of a slain Charlotte police officer and an advocate for overhauling the Racial Justice Act.

"She seemed to listen to everything I had to say and take it into account," Shelton said afterward, adding that Perdue "seemed a little surprised that [the law] has been delaying trials."

Shelton said she left with the impression that Perdue, a Democrat, wants to take a look at how the law is working. Shelton spoke at a news conference last week organized by Republican lawmakers pushing to scale back the new law. They complained that the Racial Justice Act, passed last year, is being used by accused killers, including white defendants, to delay their trials.

And:

"The governor clearly admired Jennifer's strength and expressed sincere sorrow at what she's going through," said Chrissy Pearson, Perdue's communications director and the wife of a Cary police officer. She attended the meeting.

Perdue "goes straight to the source about issues that are important to her or concern her," Pearson said. "In this case, Ms. Shelton wanted to share her personal story, and the governor was more than happy to welcome her to the Capitol."

The law, when it passed last year, was portrayed as a safeguard against the death penalty being disproportionately imposed against black defendants. Under the law, murder suspects may present evidence of racial bias, either at trial or after being sentenced to death.

Under the new law, judges can consider statistical evidence that suggests race was a key factor in prosecutors' decision to seek - or a court's decision to impose - the death penalty on a disproportionate number of people from a racial group. A judge could prohibit prosecutors from seeking a death sentence or overturn a death sentence on appeal and impose life without parole.

Earlier coverage of the RJA begins here; related posts in the race index.

Clemency Issues in Ohio, Utah

"Strickland has to decide killer's fate," is the title of Alan Johnson's report in the Columbus Dispatch.

When does one murderer deserve to live while others die?

That's the weighty question the Ohio Parole Board handed Gov. Ted Strickland yesterday by recommending that Richard Nields should not be executed next month for killing his longtime girlfriend, Patricia Newsome, 59, in an alcohol-induced rage on March 27, 1997.

The day before Nields' 60th birthday, the board split 4-3 in urging clemency for the Hamilton County man, who is scheduled to be lethally injected June 10 at the Southern Ohio Correctional Facility near Lucasville.

Strickland, a Democrat, former Methodist minister and prison psychologist, has rejected clemency 14 of 15 times in his first term as governor; all 14 men were executed.

Hamilton County Prosecutor Joseph Deters strongly objected to the clemency recommendation.

And:

However, the board's recommendation comes at a crucial time, just days after Ohio Supreme Court Justice Paul E. Pfeifer told The Dispatch that all 161 Death Row cases should be reviewed. He suggested that as a result of changes in the law and societal standards, many cases would not have resulted in death sentences had they been tried today.

That is the argument made by Nields' attorneys that four members of the parole board found persuasive. They said his sentence should be commuted to life without the possibility of parole.

They pointed to a ruling by the 6th U.S. Circuit Court of Appeals that the facts in the case "just barely get Nields over the death threshold."

The board majority also cited Pfeifer's dissent in the 2002 case.

"The type of crime Nields did is not the type of crime the General Assembly did contemplate or should have contemplated as a death penalty offense," Pfeifer wrote. "It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them. It is a crime of passion imbued with pathos and reeking of alcohol."

In Utah, the Salt Lake Tribune reports, "Attorney general says Ronnie Lee Gardner unworthy of mercy."  It's written by Nate Carlisle.

With Ronnie Lee Gardner's execution date a month away, the Utah Attorney General's Office is pleading with one group that has the power to stop it: the Utah Board of Pardons and Parole.

The board should not overturn a jury sentence, the Attorney General's Office said in a filing Tuesday.

"Gardner has not shown that he is entitled to mercy or that the Board should set aside a jury's sentence that the judiciary has found to be constitutionally sound even after twenty-five years of review," the Attorney General's Office wrote.

Gardner, 49, is scheduled to die by firing squad June 18 but wants his death sentence commuted to life with no parole. The Utah Board of Pardons and Parole can decide to hold a hearing to listen further to Gardner's arguments for commutation or reject his petition on the merits. An announcement by the board is expected within days.

And:

The jury was obligated to choose a life sentence for Gardner "unless all twelve jurors found unanimously and beyond a reasonable doubt that death was appropriate and justified under the circumstances," the attorney general wrote.

Gardner was sentenced to death for the 1985 courthouse shooting that killed attorney Michael Burdell and wounded bailiff Nick Kirk. Burdell's friends and family have supported Gardner's commutation request and have asked to speak at his commutation hearing, while Kirk's family wants Gardner executed.

Lawyers for Gardner have argued Burdell, a pacifist who would not carry a rifle while serving in the U.S. Army in Vietnam, would not want Gardner executed. Gardner's lawyers also have said he should be spared because it has been too long since he committed his crimes.

The Attorney General's Office also said if the board commutes Gardner's sentence on the grounds it has been too long since his crime, that will effectively end the death penalty in Utah. The state's remaining death row inmates, the attorney general wrote, face similar delays before their executions.

Earlier coverage from Ohio and Utah at the links; related posts in the clemency index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  The Appendix contains comparative state information.

Defenseless

That's the title of Brandi Grissom's lengthy examination of Texas indigent defense system.  LINK  It's a must read.  Here's the opening:

Texas is reaching a crisis point, putting itself at risk of a civil rights lawsuit — or worse, a total meltdown of the criminal justice system — because it so severely shortchanges the system designed to ensure impoverished accused criminals get adequate legal representation, advocates told a Senate committee last week.

“We are facing a real crossroads in indigent defense because of money,” Jeff Blackburn, general counsel for the Texas Innocence Project told members of the Senate Criminal Justice Committee. “The money in these counties is going to start running out.”

Nine years ago, before Texas adopted the Fair Defense Act, the state was considered abysmal in legal circles when it came to providing representation for the poor. Texas had more people in jail, more people on death row and executed more people than nearly any other state, but there was no mechanism to provide decent legal defense for the poor. Proponents and critics of the current system agree the situation has improved since 2001, when lawmakers started requiring counties to implement minimum representation standards. Thousands more poor defendants are getting attorneys now, and 91 counties are served in some capacity by a public defender system. “We have made such huge progress in that area that we’re no longer the laughing stock of the nation,” Tony Fabelo, director of research at the Council of State Governments Justice Center, told lawmakers.

It’s better, but it’s not good enough, advocates say. “It’s just not as bad,” Blackburn says. While courts spent more than $186 million on indigent defense in 2009, according to the Task Force on Indigent Defense, the state chipped in only $28 million — barely enough to meet the Constitutional requirement to provide adequate legal representation, advocates say. With state lawmakers looking at the possibility of an $18 billion budget hole next biennium, it's highly unlikely the Legislature will put any more money into indigent defense. Advocates are clinging for dear life to the little money they already get, asking that leaders ensure the dollars are spent effectively. And they’re worried that as the economic troubles trickle down to local governments, some of the indigent programs could disappear altogether.

Before 2001, there were a scant few public defender offices in Texas, and the ones that existed had no well-defined minimum operating standards and no state funding, Fabelo told the Committee. The Fair Defense Act required counties to create systems to provide representation for the poor. Counties can have judges assign attorneys from a list of lawyers, they can create public defender offices that employ attorneys to represent the poor, or they can create a system in which private attorneys contract with local courts to provide services. Statewide, there are now 16 public defender offices that serve 91 counties. Most counties, about 71 percent, allow judges to assign lawyers to indigent accused criminals, according to the Texas Fair Defense Project.

Related posts are in the indigent defense and Task Force on Indigent Defense indexes.

Texas Execution

Texas is scheduled to carry out its 10th execution of the year, tonight in Huntsville.  It would be the state's 457th execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 18 executions in the nation in 2010, and 1,206 executions since 1977.

The Dallas Morning News reports, "Texas death row inmate loses at Supreme Court," in the case of Rogelio Cannady,  It's written by Michael Graczyk.

Cannady was serving two life sentences at the McConnell Unit in South Texas for the 1990 slayings of two teenagers in the Rio Grande Valley.

He became the first Texas inmate charged under a state law that made killing a fellow prisoner a capital offense.

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

According to TDCJ, seven additional executions are scheduled in Texas during 2010, including one next week.  More execution dates will likely be set by state district courts this year. 

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.  They include two scheduled executions in Mississippi; one today, a second tomorrow.  Virginia also has a scheduled execution on Thursday.

"Miss. executions today, tomorrow," is the title of Molly Parker's report in today's Jackson Clarion-Ledger. Mississippi's last execution was in 2008.

Since 6 p.m. Tuesday, the Mississippi State Penitentiary at Parchman has been on lockdown, and the Delta facility will remain that way for more than 48 hours as prison staff prepares for back-to-back executions, something the state hasn't done since 1961.

The state is scheduled to execute 62-year-old Paul Everette Woodward at 6:15 p.m. today.

At the same time Thursday, the state is scheduled to execute Gerald James Holland, who, at 72, is the oldest inmate on Mississippi death row.

And:

There are 61 inmates on death row, three of whom are female. All male inmates sentenced to death are housed in Parchman, which was built in 1901 and is Mississippi's oldest penal institution.

A Roundup of Cost Items

Chicago Public Radio station WBEZ-FM reports, "Cook County Attorneys Running Out of Money to Try Death Penalty Cases," produced by Tony Arnold 

Defense attorneys and prosecutors with Cook County are running out of money to defend cases involving the death penalty. County commissioners are scheduled to talk about the issue at today's board meeting. Pat Reardon  is with the public defender's office. He says the State of Illinois is behind in paying nearly $6 million to the courts related to death penalty cases.

And:

Reardon says his office alone has about 120 death penalty cases pending.

A spokesman with the Cook County Treasurer's office says the public defender has $150 left in its account to handle the cases.

Cost was a factor in "Judge Asks U.S. to Consider Forgoing Death Penalty in Imprisoned Mobster’s Trial," written by A.G. Sulzberger.  It appeared in the May 13 edition of the New York Times.

A federal judge overseeing the trial of a notorious mobster already serving life in prison is asking the Justice Department to reconsider seeking the death penalty on the new charges.

In a letter sent Thursday to Attorney General Eric H. Holder Jr., the judge, Nicholas G. Garaufis of United States District Court in Brooklyn, wrote that the pending capital trial of the mobster, Vincent Basciano, on charges including murder had already cost the government more than $3 million in legal expenses, though it will not begin until next year.

“The possibility of a death sentence ensures that these costs will grow substantially,” he wrote.

In 2008, Judge Garaufis sentenced Mr. Basciano, a former acting boss of the Bonanno crime family who is known as Vinny Gorgeous, to life in prison without the possibility of parole after his conviction on charges including attempted murder.

“The remaining charges pending against Basciano are extremely serious, as are the crimes of which he has been convicted,” Judge Garaufis wrote. “But Basciano is already sentenced to life imprisonment. He is designated to serve his sentence under extremely restrictive conditions in one of the nation’s most secure penal institutions.”

The Justice Department did not respond to a request for comment. George R. Goltzer, a lawyer for Mr. Basciano, said the letter surprised and pleased him.

Whether to seek the death penalty has been a charged issue in New York, involving questions of limited resources and the sensibilities of local juries.

James Alan Fox writes, "Death penalty kills the budget," in his Crime & Punishment blog at the Boston Globe.

Among the 869 sundry amendments to the Massachusetts House budget bill is a proposal, sponsored by Rep. James Miceli, to reinstate capital punishment in the Commonwealth. “A capital idea!,” you say? “A real savings for the beleaguered Massachusetts taxpayers!,” you hope? Well, I wouldn’t bank on it.

A 32-year veteran of the Massachusetts House of Representatives, the Wilmington democrat is a rock-solid law and order guy, and proud of it. For years he has yearned to see the death penalty restored in Massachusetts, a state that has not executed anyone since 1947 when two men were electrocuted at Charlestown State Prison. Feeling thwarted by House leadership in getting a full hearing for a capital punishment bill, Miceli chose the unconventional route of a budget bill add-on. Ironically, it the proposal were to become law, the state budget would be severely strained.

Micelli’s amendment resurrects former Governor Mitt Romney's capital punishment bill from 2005. Romney's proposal attempted to eliminate the chance of error by constructing a foolproof system informed by science, such as DNA and other high-tech approaches, to achieve a “no-doubt” standard. The layers of safeguards, including a tandem of top-notch defense attorneys, wide latitude in hiring experts, appeals and post-conviction review by panels of specialists, would have made the state's capital punishment machinery the most expensive in the nation. When Romney called his proposal a "gold standard," he wasn't kidding, at least about the gold part.

Notwithstanding my reluctance to judge justice purely in terms of dollars and cents, there is one absolute truth about capital punishment: it costs a state millions to establish and manage the process. When a prosecutor decides to seek the death penalty, the government incurs tremendous expense, not so much related to the execution itself, but associated with the trial and appellate review. Capital murder cases tend to involve more legal motions, more expert witnesses, and longer trials, including a separate penalty phase for the jury to decide between life imprisonment and the death penalty. And if the sentence is to be death, the per inmate cost of incarceration on death row is substantially greater than that for the general prison population.

And:

Gov. Romney didn’t get very far in his effort to reintroduce capital punishment in Massachusetts, nor did Miseli in his most recent attempt. The Miceli-sponsored add-on was quickly and strategically eclipsed by an overriding amendment to send the capital punishment proposal for further study, which is typically the death sentence for unwanted legislation.

Related posts are in the cost index.

Witness to an Execution

"Bishop Reflects on Death Penalty Following Execution," is written by Dave Gossett for the Intelligencer of Wheeling, West Virginia.

It wasn't easy for Bishop R. Daniel Conlon to watch Michael Beuke lie strapped down on the gurney in the Lucasville death chamber last week.

"I was feeling a great sadness. A sadness for the tragic loss of life 27 years ago and the loss of life that day," said Conlon, bishop of the Steubenville Catholic Diocese.

Beuke was executed Thursday at the Southern Ohio Correctional Facility at Lucasville for the 1983 murder of Robert Craig and the shooting of two other men during a three-week string of shootings in the Cincinnati area. He was labeled by the news media at the time as the "homicidal hitchhiker" after receiving rides from his three victims.

The Associated Press reported Beuke said he committed the crimes because he needed $2,500 to hire an attorney to defend him on a drug trafficking charge and needed a stolen car to rob a bank for the money. Last-minute appeals based on his 27 years on Ohio's death row and possible problems with the execution because of his prescription medication were rejected.

Conlon first met Beuke as a teenager in Cincinnati.

"Michael's father was very active on the Catholic scouting committee. Michael was in his mid teens when I met him. He attended Catholic schools in Cincinnati. But I really didn't know him," Conlon recalled. "Bishop George Murry of the Youngstown Diocese mentioned to me at a meeting that Michael Beuke had known me from before and desired a visit with me. We did have some correspondence after he was initially incarcerated, but I had lost contact with him over the years.

"Twenty-seven years is a long time. But once his execution date was set, I felt a pastoral obligation to visit with him. So I started visiting him while he was on death row in the Youngstown state prison," Conlon added. "A priest deals with lots of trying situations. We minister to people who are dying. But I was visiting with a perfectly healthy human being who had a fixed date with death. Neither of us could do anything about that except to prepare spiritually."

Conlon, along with Murry and two Cincinnati diocesan priests who knew Beuke's parents, traveled to Lucasville to serve as spiritual advisers to Beuke. The two bishops also served as witnesses to the execution at Beuke's request.

And:

After witnessing Beuke's execution, Conlon said he remains opposed to the death penalty in Ohio.

"I am a Catholic and a Catholic priest, so I subscribe to the teachings of the Catholic Church. The church acknowledges the right of the state to punish people for their crimes, even punishment by death," observed Conlon. "But even that ultimate punishment can only be used as a last resort if the state feels it can't protect others. My sense is there are virtually no such situations existing in the state of Ohio. In accord with the teaching of our church, the death penalty should virtually never be imposed.

"As bishops, our role as teachers is to put forth the teachings of the church on this matter to our people. If we are speaking to elected officials on this matter or other moral issues, we do discuss the church's teaching," Conlon continued. "As far as I know, since I have been bishop there have been no legislative proposals in Ohio to modify the statutes pertaining to capital punishment ... we as bishops would be very active in supporting measures to end the death penalty."

In the Mississippi's Hattiesburg American. retired pastor Dick Allison writes the OpEd, "Please stop the executions."

The day this column is scheduled for publication, I will be visiting a man whom I had the privilege of baptizing three years ago while he was in Lamar County Jail awaiting trial. Now he is on death row in Parchman. I don't get to see him often, but we keep in close touch through letters and occasional phone calls. I'm excited about seeing him again. He is one of my true brothers in Christ.

However, the joy of visiting with him will be tempered by the fact that consecutive executions are on the docket for the next two days, May 19 and 20. I do not know the men who are scheduled for execution, but I am praying earnestly that "the peace of God that passes all understanding will keep their hearts and minds through Christ Jesus." I am also praying that their executions can be commuted and that the day will come when the state no longer takes human lives in retaliation for the taking of human life. Two wrongs do not make a right!

I care deeply about the families of murdered victims. There is no way any of us who have not experienced losing a loved one who has been murdered can know what that is like. My position against capital punishment is not about caring for the offender instead of the victim's family. It is about loving every person made in the image of God. In many cases it includes loving and supporting the offender's family whose grief is as real as that of the victim's family.

News Coverage of the Graham Ruling

"Justices Limit Life Sentences for Juveniles," is the title of Adam Liptak's report in the New York Times.

The Supreme Court on Monday ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life in prison without the possibility of parole.

Five justices, in an opinion by Justice Anthony M. Kennedy, agreed that the Eighth Amendment’s ban on cruel and unusual punishment forbids such sentences as a categorical matter.

“A state need not guarantee the offender eventual release,” Justice Kennedy wrote, “but if it imposes the sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term.”

The ruling marked the first time that the court excluded an entire class of offenders from a given form of punishment outside the context of the death penalty. “ ‘Death is different’ no longer,” Justice Clarence Thomas wrote in dissent.

The overall vote was 6-to-3, though that is a little misleading. Chief Justice John G. Roberts Jr. voted with the majority in saying that the inmate who brought the appeal had received a sentence so harsh that it violated the Constitution. But the chief justice endorsed only a case-by-case approach, saying that an offender’s age could be considered in deciding whether a life sentence was so disproportionate to the crime as to violate the Eighth Amendment.

Robert Barnes writes, "Supreme Court restricts life without parole for juveniles," for the Washington Post.

The decision follows the court's 2005 decision that, no matter what crime they commit, juveniles may not be executed. It also reinforced the court's view that the Eighth Amendment's protections against harsh punishment must be interpreted in light of the country's "evolving standards of decency."

Justice Anthony M. Kennedy, writing for the majority, said states must provide juveniles who receive lengthy sentences a "meaningful" chance at some point to show they should be released.

"By denying the defendant the right to reenter the community, the state makes an irrevocable judgment about that person's value and place in society," Kennedy wrote. "This judgment is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability."

The National Law Journal has, "Justices Rule on Prison Time for Juveniles, Sex Offenders," written by Tony Mauro and Marcia Coyle.

The ruling included a sharp exchange between retiring Justice Stevens and Justice Clarence Thomas. Writing separately, Stevens criticized Thomas for a "rigid" interpretation of the Eighth Amendment. "Society changes," wrote Stevens. "Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel at one time may, in the light of reason and experience, be found cruel and unusual at a later time."

In a curt response, Thomas in his dissent wrote that he agreed with Stevens about learning from mistakes. "Perhaps one day the Court will learn from this one." Justice Antonin Scalia joined Thomas' dissent, and Justice Samuel Alito Jr. wrote a separate dissent.

Another subtext of the dueling opinions was the debate over the importance of foreign law in Supreme Court decision-making. Kennedy wrote that life without parole for juveniles was "a sentencing practice rejected the world over." He added, "This observation does not control our decisions." But in dissent Thomas wrote that "such factors are irrelevant to the meaning of our Constitution or the Court's discernment of any long-standing determination in this nation."

"Supreme Court restricts life sentences without parole for juveniles," by David Savage for the Los Angeles Times.

A Washington lawyer representing the National District Attorneys Assn. denounced the ruling. The court's decision "creates a whole new category of constitutionally protected criminals, essentially a 'get out of jail free' card for underage criminals repeatedly convicted of adult heinous violent crimes," said attorney Gene Schaerr.

But others saw it as a step forward.

"None of us are the same people we were as teenagers," said Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia. "When it comes to sentencing youth, we should not make irrevocable decisions."

Human Rights Watch says the United States has 2,574 inmates serving life terms for crimes they committed before age 18. The vast majority of young criminals who get life terms were involved in homicides.

Of the 129 prisoners directly affected by Monday's ruling, 77 are in Florida. In addition to California, the other states with at least a few such prisoners are Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina and Virginia.

"Court limits harsh terms for youths," by Joan Biskupic and Martha T. Moore in USA Today.

Baylor University criminal law professor Mark Osler said Monday's decision arises against the backdrop of a broader national re-examination of harsh sentences, but it is most significant in how it views offenders who are under age 18.

"It reinforces the idea that children are different," Osler said, adding, "We are at a point that some people are perceiving that the pendulum has swung too far" toward harsh sentences for young offenders.

Dissenting justices, led by Clarence Thomas, stressed that "states over the past 20 years have consistently increased the severity of punishments for juvenile offenders."

Yet Kennedy noted that most prosecutors and judges have not taken advantage of state laws that eliminated the chance of parole for juveniles whose crimes fall short of homicide. He said that of the 129 juvenile offenders serving life without parole for a non-homicide crime, 77 are behind bars in Florida. The other 52 criminals are in just 10 states and the federal system.

"Justices Restrict Life Terms for Youths," by Jess Bravin is in the Wall Street Journal.  It's accompanied by a graphic.

The case came from Jacksonville, Fla., where Terrence Graham, then age 16, and three school-age accomplices attempted to rob a restaurant. As part of a plea bargain, he promised to turn his life around and received three years probation.

But a year after his plea, Mr. Graham was caught after allegedly joining two adult accomplices in a home-invasion robbery. He was found in violation of probation, which allowed a judge to sentence him for the earlier crime.

A presentencing report from the state Department of Corrections recommended a maximum of four years. The judge sentenced Mr. Graham to life in prison.

"The only thing I can do now is to try and protect the community from your actions," the judge said. Florida has no parole, meaning Mr. Graham would die in prison absent a pardon. State courts upheld the sentence.

For the past century, the court has interpreted the Eighth Amendment to reflect the "evolving standards of decency that mark the progress of a maturing society," as Chief Justice Earl Warren phrased it in 1958.

Justice Kennedy in recent years has led the court in refining that analysis. Although 37 states and the District of Columbia permit juvenile life-without-parole sentences, he wrote that in practice the sentence is highly disfavored.

By the court's count, only 11 states actually hold prisoners under such sentences. He said 77 of the 129 youths serving life without parole for nonhomicide offenses are in Florida.

That made the sentence unusual, Justice Kennedy said. It also was cruel, he wrote, because it lacked "any legitimate penological justification."

Some Florida Democrats praised the ruling. Gubernatorial candidate Alex Sink, the state's chief financial officer, said "it was obvious that Florida was out of line with the rest of our country." The ruling means that states will have to resentence affected juvenile offenders serving life terms or at least provide them parole hearings.

Justice Kennedy's earlier rulings ending the death penalty for juvenile offenders and for nonhomicide crimes have been excoriated by conservatives, in part because they have cited the near-universal global consensus against such punishments as evidence of evolving standards of decency. Some conservatives say foreign practices are irrelevant to U.S. law.

Undaunted, Justice Kennedy used his opinion in Monday's case, Graham v. Florida, to reassert that approach to the Eighth Amendment. "[T]he judgment of the world's nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the court's rationale has respected reasoning to support it," he wrote.

"Supreme Court puts limits on life sentences for juveniles," by Warren Richey in the Christian Science Monitor.

Earlier coverage begins with the preceding post; the opinion is here.

Editorials Praise Graham Ruling

Today's New York Times carries the editorial, "A New Standard of Decency."

Monday’s welcome Supreme Court decision, banning sentences of life without parole for juvenile criminals who do not commit murder, recognizes that children mature and should not be irrevocably punished for a childhood act short of killing. But it also recognizes that nations mature — that standards of justice and constitutional principles change over the centuries and should be reinterpreted by new generations.

Justice Anthony Kennedy, writing for a five-member majority, acknowledged that permanent life sentences for juveniles might not have been historically recognized as cruel and unusual punishment but should now be considered unconstitutional because of “evolving standards of decency.”

Justice John Paul Stevens stated the case simply and elegantly in a concurring opinion:

“Society changes,” he wrote. “Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”

That, of course, infuriated the strict constructionists on the court, who said the Constitution’s framers meant “cruel and unusual” to refer to torture and nothing more. Justice Clarence Thomas, writing for two other justices, said the court was overstepping its bounds by interpreting the clause to ban disproportionate punishment.

Viewing the case from that 18th-century perspective, however, means ignoring recent scientific evidence showing a fundamental difference between the minds of juveniles and adults. Justice Kennedy, expanding on his landmark 2005 decision that banned the death penalty for juveniles, noted that the brain matures through late adolescence. He said juvenile actions are less likely to be evidence of an “irretrievably depraved character.”

"Too young for life without parole," is the title of the Washington Post editorial.

The Supreme Court's decision on Monday in Graham v. Florida guarantees that those who have committed serious crimes as teenagers get an opportunity for release once they reach adulthood even while leaving intact the government's ability to keep incarcerated those deemed too dangerous to release. This is the right call.

Some 37 states, the District of Columbia and the federal government allow life imprisonment without the possibility of parole for serious juvenile offenders convicted of nonhomicide crimes. Roughly 129 juveniles are serving such sentences, 77 in Florida. Terrance Jamar Graham was one of them. Mr. Graham was hit with a mandatory life sentence at age 17 after violating his probation for his involvement in a home invasion robbery; the year before he was involved in an attempted robbery of a Florida restaurant.

These crimes warrant serious punishment. But a mandatory life sentence for a juvenile offender without the possibility of release is unconscionable, largely because it holds juveniles accountable as adults even though scientific data show that they are less able to assess risk, control impulses and comprehend consequences. It also ignores their capacity to change.

Coverage of the ruling begins with this post; the opinion is here.  I'll link to news coverage of the ruling in the next post.

A Lawyer Known Best for Losing Capital Cases

That's the title of Adam Liptak's Sidebar column in today's New York Times.  LINK  It's a must-read.  Here are several excerpts:

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

So what is Mr. Guerinot’s secret?

It seems to boil down to a failure to conduct even rudimentary investigations, said David R. Dow, a law professor at the University of Houston and the litigation director of the Texas Defender Service, which represents death row inmates, including not a few of Mr. Guerinot’s former clients.

“He doesn’t even pick the low-hanging fruit which is hitting him in the head as he’s walking under the tree,” Mr. Dow said.

Mr. Guerinot did not respond to two messages seeking comment. In 2007, he told The Observer, a London newspaper, that judges gave him only tough cases.

And:

Two weeks ago, the Supreme Court turned down an opportunity to review Mr. Guerinot’s work in the case of Linda Carty, a 51-year-old British woman. The case has gotten a lot of attention in Britain, where journalists and a documentary filmmaker, Steve Humphries, have been examining Mr. Guerinot’s performance.

“It is no exaggeration to suggest that Mr. Guerinot has perhaps the worst record of any capital lawyer in the United States,” Mr. Humphries said in a supporting brief urging the court to hear Ms. Carty’s case.

Prosecutors said Ms. Carty had orchestrated a macabre plot to kidnap and murder Joana Rodriguez and claim Ms. Rodriguez’s newborn son as her own. The evidence against Ms. Carty consisted mostly of testimony from four men said to be her accomplices, who were described by a prosecutor as “an armed robber, a dope dealer, a drive-by shooter and another armed robber.”

Mr. Guerinot did not visit Ms. Carty for three months after he was appointed to represent her. Ms. Carty, in a video interview with Mr. Humphries, described her meeting with Mr. Guerinot just weeks before her trial: “I met this guy for less than 15 minutes. Once.”

“Basically,” she told The Observer, “he’s an undertaker for the State of Texas.”

Mr. Guerinot never interviewed Jose Corona, who was Ms. Carty’s common-law husband but gave powerful testimony about a motive for her actions — that she desperately wanted a baby.

Mr. Corona later said he did not want to help the prosecution but believed he had no choice.

“It was never explained to me that there is a marital privilege, and under the privilege I had the right to refuse to testify,” he said in a sworn statement.

And:

The Supreme Court lately seems to be washing its hands of the Texas capital justice system. Last month, two weeks before it turned down Ms. Carty, the court refused to hear an appeal from Charles Dean Hood, who was sentenced to death by a judge who had been sleeping with the prosecutor.

Mr. Guerinot, for his part, has given up capital work and now handles more ordinary criminal cases, on a volume basis. An analysis in The Houston Chronicle last year found that he had represented 2,000 felony defendants in 2007 and 2008 — far above the caseload limits recommended by bar associations and other groups that take criminal defense work seriously.

Earlier coverage of the Linda Carty case begins with this post.  Lise Olsen's reporting on Harris County indigent defense issues in the Houston Chronicle is noted here.

A New Book From Scott Christianson

New York-based scholar Scott Christianson's latest book is The Last Gasp: The Rise and Fall of the American Gas Chamber.  It's published by the University of California Press.  

The Last Gasp takes us to the dark side of human history in the first full chronicle of the gas chamber in the United States. In page-turning detail, award-winning writer Scott Christianson tells a dreadful story that is full of surprising and provocative new findings. First constructed in Nevada in 1924, the gas chamber, a method of killing sealed off and removed from the sight and hearing of witnesses, was originally touted as a “humane” method of execution. Delving into science, war, industry, medicine, law, and politics, Christianson overturns this mythology for good. He exposes the sinister links between corporations looking for profit, the military, and the first uses of the gas chamber after World War I. He explores little-known connections between the gas chamber and the eugenics movement. Perhaps most controversially, he has unearthed new evidence about American and German collaboration in the production and lethal use of hydrogen cyanide and about Hitler’s adoption of gas chamber technology developed in the United States. More than a book about the death penalty, this compelling history ultimately reveals much about America’s values and power structures in the twentieth century.

It's available directly from publisher at this link, from Amazon at this link, or your local bookseller.

And, here are some of the reviews:

“Christianson charts the 75-year history of gas chamber execution as well as its intersection with eugenics, the Holocaust, and America’s ongoing capital punishment debate. . . . Despite being developed as a swifter and more painless alternative to death than hanging or electrocution, Christianson describes in graphic detail the numerous botched executions during which death took over 10 agonizing minutes. Though the gas chamber hasn’t been used in America since 1999, Christianson makes a chilling argument for its—and the death penalty’s—abolition.” STARRED REVIEW

—Publishers Weekly

“Scott Christianson has masterfully chronicled the history of the use of gas to kill human beings. In doing so, he has shown that the Nazi regime drew strength and comfort from the United States' use of the gas chamber beginning nine years before Hitler took power, as well as from the substantial number of gas chamber executions thereafter. While Christianson doesn't claim that the use of the gas chamber here led to the Holocaust, he does highlight ties between the chemical companies who were involved in both gas chambers in the United States and extermination chambers using gas in the Holocaust. This is a truly thought-provoking and eye-opening book.”

—Ronald J. Tabak, President, New Yorkers Against the Death Penalty

“Scott Christianson has used his extensive experience as an investigative reporter, criminal justice official, historian, and scholar to probe one of the darkest and most neglected regions of American death penalty history—the story of the gas chamber. This book opens new doors and charts new territory in its gripping historical tale documenting the development and use of lethal gas as a method of execution in the United States. As one well acquainted with the realm of capital punishment history and research, Christianson has produced a stellar work that sheds new light on many of the central issues affecting executions.”

—Dr. Charles S. Lanier, Director of the Capital Punishment Research Initiative (CPRI), Hindelang Criminal Justice Research Center, University at Albany

“By tracing the links between American capital punishment, weapons of mass destruction and Nazi gas chambers, The Last Gasp gives an added dimension to our thinking about the American death penalty. The author has done a great deal of original research and has produced a very thorough history of an interesting and hitherto little known subject.”

—David Garland, author of The Culture of Control and Punishment and Modern Society

"Christianson has done for lethal gas what others have done for hanging, electrocution, and lethal injection: told its history in a compelling manner. He provides an authoritative story of the way lethal gas was appropriated for use as a technology of execution.”

—Austin Sarat, author of When the State Kills: Capital Punishment and the American Condition

"In an astonishing, deeply probing and relentless search of the history of the gas chamber, Scott Christianson has made a vital contribution to the understanding that the quest for a 'humane' method of execution must ultimately be fruitless."

—Rabbi Leonard I. Beerman, Founding Rabbi of Leo Baeck Temple, Los Angeles and Member, Board of Directors, Death Penalty Focus

Scott Christianson's 2006 book Innocent is noted here.

Drug Shortage May Imperil Executions in Arizona

That's the title of Michael Kiefer's report in Sunday's Arizona Republic.  LINK

A worldwide shortage of a drug used in lethal-injection procedures could jeopardize future executions in Arizona.

The shortage became evident last week during a federal court hearing in Ohio. There, an Arizona-based federal public defender told the court that Ohio had admitted it did not have enough of the drug, thiopental sodium, to carry out an execution later that week.

According to court transcripts, attorney Dale Baich asked if the state would call off the execution if it did not find an ample supply. By the end of the day, the state had found an alternative source for the drug, and the execution was carried out as planned on Thursday.

And:

The shortage could affect Arizona as well, just as it is poised to resume executions after three years and a long court battle to establish a constitutionally acceptable method of lethal injection.

Barrett Marson, a spokesman for the Arizona Department of Corrections, said the department does not have a stockpile of the drug. According to the state's official execution-procedure manual, finalized in September, the drugs for execution are not ordered until the death warrant is received.

On Thursday, the Arizona Supreme Court will discuss whether to issue a death warrant for convicted murderer Richard Lynn Bible, who raped and killed a 9-year-old girl in Flagstaff in 1988.

If the warrant is approved, Bible would be scheduled for execution in late June.

But he can't be executed without thiopental sodium.

Dan Rosenberg, a spokesman for Chicago-based Hospira, the sole U.S. company that manufactures thiopental sodium, told The Arizona Republic that because of an unspecified "manufacturing issue," they cannot provide the drug. Rosenberg could say only that the company expected "the product to be available again in the third quarter," which means sometime between July 1 and September 30.

Arizona carried out its last execution by lethal injection in May 2007, when it put to death Robert Comer, who murdered a man at an Apache Lake campground in 1987.

And:

The Ohio procedure depends entirely on thiopental, a barbiturate used as an anesthetic in Caesarean sections because it anesthetizes the mother without affecting the baby and in emergency-room intubations because it takes effect rapidly and wears off quickly.

It is also referred to as sodium thiopental and sodium pentothal.

According to a hospital medical director, who asked not to be identified because of the medical-ethics issues posed by lethal injection, available stores of thiopental have been further depleted because of a shortage of the drug propofol, the anesthetic that killed pop star Michael Jackson.

Anesthesiologists can substitute one drug for another, but executioners cannot because their protocols have been hammered out through litigation.

Earlier coverage of the shortage is here.

Bryan Stevenson on Today's Graham Ruling

Bryan Stevenson, Director of the Equal Justice Initiative, argued the companion case, Sullivan v. Florida in the Supreme Court.  EJI has issued a news release, "Court Strikes Down LWOP for Juvenile Non-Homicide.  Decision Called 'A Significant Victory for Children'."  Here's an excerpt:

The U.S. Supreme Court today issued an historic ruling in Graham v. Florida that holds life-without-parole sentences for juveniles convicted of non-homicide offenses unconstitutional. Terrance Graham, sentenced to life without parole at 17, is now entitled to a resentencing hearing.  Dozens of other juveniles sentenced to life without parole are now entitled to relief, including Joe Sullivan, whose case also was argued on this issue. 

In his majority opinion, Justice Kennedy explained a categorical rule barring life imprisonment without parole sentences "gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.  The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential."   Discussing Graham's case, the majority wrote, "[t]he State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law.  This the Eighth Amendment does not permit."

“This is a significant victory for children. The Court recognized that it is cruel to pass a final judgment on children, who have an enormous capacity for change and rehabilitation compared to adults,” said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Joe Sullivan. “I am very encouraged by the Court's ruling.  It's an important win not only for kids who have been condemned to die in prison but for all children who need additional protection and recognition in the criminal justice system.”    

Stevenson noted that many of the people affected by the ruling do not have lawyers and will need effective legal representation for the sentencing hearings that the Court’s ruling now requires. Today’s decision provides juveniles sentenced to life without parole in non-homicide cases an opportunity to have their sentences reviewed but not the right to automatic release.

The Court cited scientific studies showing that the same immaturity and flexibility that make teenagers more susceptible to peer pressure and external influences also make them strong candidates for rehabilitation.  The majority wrote, "Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope."

Earlier coverage begins with this post.

Opinion Roundup

"Death penalty too costly, doesn’t deter murderers," is the editorial in Connecticut's Norwich Bulletin.

There were 135 murders committed in Connecticut in 2006, the highest amount reported since 1998, which also had 135 murders.

But the 2006 figure is the more important one. That was the year after the state executed serial killer Michael Ross. His execution apparently did little to deter others from taking lives.

In fact, the state has recorded more murders in the four years after Ross’ execution than in the four years leading up to it. From 2001 through 2004, 411 murders were committed compared to 478 from 2006 through 2009.

Of the 10 inmates now on Connecticut’s death row, three were sentenced to death after Ross’ execution — Leslie Campbell III and Russell Peeler, both in 2007, and Lazale Ashby in 2008.
Connecticut’s death penalty is not a deterrent to murder. It hasn’t stopped the violence.

Not everyone convicted of murder is sentenced to death. The vast majority of those who are convicted end up serving long sentences, some life sentences with no chance of parole. And those who are sentenced to death spend decades on death row because of the law’s endless series of appeals available to them. The legal costs of those appeals is staggering; the pain and suffering they bring to victims’ families is immeasurable.

It’s time Connecticut joined other states in repealing the death penalty.

Last week marked the fifth anniversary of Ross’ execution, the first state-sponsored execution in Connecticut in 45 years. Ross admitted killing eight women, six in New London and Windham counties and two others in New York. He served 18 years on death row after his convictions, and was only executed due to his own efforts to have the sentence carried out.

And:

We agree with the current crop of gubernatorial candidates — Democrats and Republicans — that the repeal of the state’s death penalty is not a top priority in this year’s election or for the next administration and Legislature. Creating jobs and addressing the state’s fiscal policies are the priority and should be.

But it is an issue in this year’s campaign. It is expected the Legislature will again next year move to adopt legislation calling for its repeal.

And it is the one issue in this campaign that each of the gubernatorial candidates has been clear about in regards to where they stand.

The five Republicans — Lt. Gov. Michael Fedele, Tom Foley, Oz Griebel, Larry DeNardis and Danbury Mayor Mark Boughton — do not favor the repeal of the law and have said they would veto any attempt to so.

The two Democrats — Ned Lamont and Dan Malloy — agree they would sign the legislation to repeal the law if such a measure was sent to their desk

Saturday's Salt Lake Tribune carried the OpEd, "Capital punishment: The ugly truth," by Erin Mcguire.

On April 23, death row inmate Ronnie Gardner's decision to be executed by firing squad was accepted by state court Judge Robin Reese. As the first capital punishment execution in Utah since 1999, it has once more rekindled a decades-old debate: Should Utah remain a death penalty state?

Capital punishment continues to be used for a few reasons: It's believed to be a major crime deterrent and cheaper than life imprisonment in already overcrowded prisons, and the executions can be done humanely through lethal injection. However, based on recent findings, none of these reasons are valid.

In 2007, the U.S. Department of Justice made its annual report of crime rates across the country, including cities with the highest population. Cities in each of the 15 non-death-penalty states consistently had lower crime rates than cities within the 35 states that did have the death penalty. An example being New York City, without the death penalty, which had a total of 613 violent crimes compared to Philadelphia, which does have the death penalty and had a total of 1,475 violent crimes.

Similar reports done each year by the Federal Bureau of Investigation show that non-death-penalty states have had noticeably lower crime rates since 1991.

And:

Capital punishment, stripped of these three justifications, is only a means to immediate retribution. However, death-row inmates can be punished just as strictly through life without parole sentences that avoid aren't unconstitutional, expensive or ineffective. More than 90 countries across the globe have abolished the death penalty, including the entirety of Western Europe, and 15 states have followed their example. It may be time for Utah to do the same.

"Md. executions waste families' time and taxpayers' money," by Melanie Share appears in today's Washington Post Letters.  She is a board member of Maryland Citizens Against State Executions. 

Polling from 2007 shows that Marylanders are ready to get rid of the death penalty and replace it with a maximum punishment of life in prison without the possibility of parole. And yet former governor Robert L. Ehrlich Jr. is trying to make an issue out of the death penalty ["Ehrlich takes issue with death penalty delays," Metro, May 8].

A 30-year low in violent crime in Maryland, including a 12 percent drop in homicides, comes alongside a nearly four-year moratorium on executions, due to the Court of Appeals having tossed out the state's execution method. The reality is that our ineffective death penalty wastes money that could be better spent on effective public safety efforts.

There is earlier coverage from Connecticut, Maryland, and Utah at the links.

More on the Kevin Keith Case

"Evidence of innocence: Kevin Keith sits on Ohio's death row as the eyewitness case against him continues to erode," is the title of an editorial in Akron Beacon Journal.  It appeared in Friday's edition.

The successful prosecution of Kevin Keith relied heavily on the account of an eyewitness. Richard Warren testified in the Crawford County Common Pleas Court that Keith sprayed gunfire in a Bucyrus apartment, killing three people and wounding three others (including Warren). No forensic evidence conclusively linked Keith to the crime. He even had an alibi. So the Warren testimony proved critical in sending Keith to death row 16 years ago.

Now that testimony has begun to fall apart, new attorneys for Keith uncovering fresh evidence since they joined the case three years ago. The attorneys have asked the U.S. Supreme Court for relief, Keith facing an execution date in September. On Tuesday, they also filed a motion in Crawford County for a new trial. They have discovered new information in an unrelated lawsuit that concerns the Bucyrus Police Department destroying tape recordings of the station's incoming telephone calls.

Questions long have been raised about the way Warren arrived at identifying Keith. Warren initially insisted that he didn't know the shooter. He explained that the shooter wore a mask. Yet he eventually pointed to Keith. Why? Police officers said a nurse attending Warren in the hospital called the station to say that Warren had identified the attacker as ''Kevin.'' The police then put together a photo lineup of ''Kevins,'' from which Warren selected Keith.

Put aside that the lineup was biased, the photo of Keith larger and darker than the others. The police testified that a nurse ''Amy Gimmets'' made the call to the station. Yet Gimmets never testified at the trial. Another nurse, John Foor, took the stand, telling the court that he called the police to relay that Warren wrote down the name of ''Kevin'' as the attacker.

And:

What is evident is that the police had Kevin Keith in their sights from the start. Did they maneuver to plant the thought with Warren? The new attorneys for Keith have uncovered strong information about a far more likely suspect. All this explains why the Ohio Innocence Project has taken up Keith's cause, why he deserves relief from the Supreme Court and a new trial in Crawford County.

Earlier coverage of the case begins here.

Supreme Court Rules on Juvenile Sentencing

The Supreme Court has ruled out life without parole sentences for juvenile offenders convicted of nonhomicidal crimes.  The ruling in Graham v. Florida is in Adobe .pdf format.

The initial AP dispatch is, "High court rules out life sentences for juveniles," by Mark Sherman. 

The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven't killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."

And:

Those inmates are in Florida and seven other states - California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina - according to a Florida State University study. More than 2,000 other juveniles are serving life without parole for killing someone. Their sentences are not affected by Monday's decision.

SCOTUS Blog's "Today’s orders and opinions," has this:

In Graham v. Florida (08-7412), the Court reverses and remands, in an opinion again by Justice Kennedy.  The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito.  Justice Alito files a separate dissenting opinion for himself.   Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.

• Holding:  It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

The Court dismisses Sullivan v. Florida (08-7621) as improvidently granted, in this per curiam opinion.

I'm sure we will be seeing more coverage and commentary in the hours ahead.  Earlier coverage of the issue begins with this post.

Ohio Supreme Court Justice Calls for Review of All on State's Death Row

"Death Row cases should be reviewed, justice says," is the title of Alan Johnson's report.  It appeared in Saturday's Columbus Dispatch.

The "father of Ohio's death penalty," Supreme Court Justice Paul E. Pfeifer, says all current Death Row cases should be reviewed to see which ones warrant execution -- and which should be commuted to life in prison without the possibility of parole.

"There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Pfeifer told The Dispatch. His comments came the day after the lethal injection of Michael Beuke, the fifth Ohioan executed this year and the 38th since 1999.

"When the next governor is sworn in," Pfeifer said, "I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.

"The only reason we have a death penalty is society demands retribution. ... I never made the argument that it was a deterrent. You can't prove it with numbers."

Pfeifer, a Supreme Court justice for the past 17 years, was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court.

At the time, Pfeifer included a life without parole option in the law, but the Ohio House refused to go along.

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.

"The point is whether or not death is the appropriate penalty," he said.

Pfeifer said the majority of the old cases, had they been tried today under current law and societal standards, would not have resulted in capital punishment.

"The number of people we have accumulated on Death Row has been rather staggering," he said. "It's improbable that all of those folks are going to be executed."

With a high number of executions and relatively few new death sentences being handed out (one last year), Death Row has shrunk nearly 21 percent in Ohio, from a high of 203 prisoners in January 2002 to the current 161.

Six more executions are scheduled this year, and two have been set for 2011.

Ohio Public Defender Tim Young called Pfeifer's suggestion "a tremendous idea, one we would greatly encourage."

The AP post is, "Justice urges review of Ohio capital cases," via the Fort Wayne Journal Gazette.

Ohio’s staggering number of death row cases ought to be reviewed to determine which ones really warrant execution, a longtime state Supreme Court justice said.

Justice Paul Pfeifer, who played a major role in resurrecting Ohio’s death penalty law nearly 30 years ago, said the state has a backlog of old cases. Many of those would not have resulted in a death sentence had they been tried under current law, which gives juries the option of imposing a life sentence without the possibility of parole, he said.

“There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas,” Pfeifer said.

Ohio has 161 inmates on death row and is on pace to execute a state-record 11 inmates this year.

Pfeifer, a member of the state’s highest court for 17 years, said all death row cases should be reviewed to see which ones warrant execution and which ones should be commuted to life in prison without the possibility of parole.

A message seeking comment was left Saturday with a spokeswoman for Attorney General Richard Cordray.

Pfeifer was one of three Republican state senators who resurrected Ohio’s death penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court. At the time, Pfeifer included a life without parole option in the law, but the House refused to go along. The state has since given juries that option.

Earlier coverage from Ohio on the pace of executions is in this post.

Friday

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

Texas Execution

Texas carried out its second execution in two consecutive days, last night in Huntsville.  It was the state's ninth execution of 2010; the 456th Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 18 executions in the nation in 2010, and 1,206 executions since 1977.

Today's Dallas Morning News carries this AP report on the execution of Billy Galloway.  It's written by Michael Graczyk.

According to TDCJ, eight additional executions are scheduled in Texas during 2010, including two more in May.  More execution dates will likely be set by state district courts this year.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

The Weis Case in Georgia - Representation in Crisis

Bill Rankin writes, "Supreme Court asked to decide Georgia death-penalty appeal," for today's Atlanta Journal-Constitution.

The U.S. Supreme Court is being asked to hear a case that could decide whether Georgia can afford the death penalty.

On Tuesday, lawyers for Jamie Ryan Weis petitioned the high court to consider a recent 4-3 ruling by the Georgia Supreme Court that denied Weis’ bid to bar a death penalty prosecution because he sat in jail for more than two years without lawyers to defend him.

"This case involves the question of whether there is such a complete breakdown in providing counsel for the accused that a fair trial is impossible," said the petition, filed by Stephen Bright, one of Weis' attorneys. "He faces not a ‘trial,' as that term is understood as a contest between adversaries, but the fate of those thrown to the lions."

Weis is charged with killing Catherine King during a 2006 burglary in Pike County. The Georgia Public Defender Standards Council appointed two private lawyers to represent him, but the case stalled when the agency ran out of money to pay for the defense. When Weis'  lawyers asked that the case be delayed until funds were available, the district attorney moved to replace the lawyers with two local public defenders. Even though the defenders said they were overwhelmed and did not have adequate resources to defend a capital case, then-Superior Court Judge Johnnie Caldwell approved the prosecution's motion.

Weis later appealed, asking the state Supreme Court to bar the death penalty on grounds his right to a speedy trial was violated. The court rejected the appeal, blaming most of the delays on Weis and his lawyers.

In the petition, Bright called the proceedings a "sham." All the while, Bright wrote, Weis "had no lawyer working on his case, no guiding hand, none of the basic tools of an adequate defense. Instead, he experienced the most severe imbalance of power between the state and the accused imaginable."

Earlier coverage of the case begins here.  Coverage of Georgia-specific indigent defense issues is here; related articles are in the indigent defense index.

High Court Fails in Hood Appeal

That's the title of an editorial in today's San Antonio Express-News on the Charles Dean Hood case.  LINK

The Texas Court of Criminal Appeals made a mockery of justice when it ruled last year that convicted murderer Charles Dean Hood was not entitled to a new court trial. On the basis of a technicality, the court did find that Hood — who is on death row — deserved a new sentencing trial. But that ruling completely ignored issues of serious judicial and prosecutorial misconduct.

The judge who presided over Hood’s trial and the district attorney who prosecuted him in Collin County were engaged in a long-term, secret affair. Such a relationship creates a conflict of interest that severely undermines the impartiality of the justice system. While the facts of the case against Hood may not be in question, the fairness of his trial certainly is.

In a bizarre ruling, a majority on the Texas Court of Criminal Appeals ruled that Hood’s lawyers waited too long to raise the issue of the affair. Hood’s defense team couldn’t raise it any sooner, however, because the secret relationship wasn’t disclosed until 2008.

Hood’s attorneys appealed to the U.S. Supreme Court. Twenty-one former judges, government officials and prosecutors — including former Bexar County District Attorney Sam Millsap and former FBI Director William Sessions — filed an amicus brief in support.

“The conduct of the trial judge and prosecutor . . . combined with the short shrift given to petitioner’s claim by the Court of Criminal Appeals cast grave doubt on the impartiality and fairness of the trial in this case and tarnish significantly the reputation of the judiciary as a whole,” their brief stated. The high court “is the last court with an opportunity to prevent the infliction of this serious harm — both to petitioner and to the judiciary.”

If the ruling of the Texas Court of Criminal Appeals was bizarre, the ruling of the U.S. Supreme Court was incomprehensible. The justices, without explanation, rejected Hood’s appeal.

And:

Justice is supposed to be blind. In this case, the Texas Court of Criminal Appeals and the U.S. Supreme Court have simply turned a blind eye to outrageous misconduct that undermines public confidence in the fairness of the justice system.

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

Texas Executions - Ohio Execution

Texas carried out its eighth execution of 2010, last night in Huntsville.  It was the 455th Texas execution since 1982.  Another execution is scheduled for tonight.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 16 executions in the nation in 2010, and 1,204 executions since 1977.

The Rapid City Journal reports, "South Dakota ex-con Kevin Varga executed in Texas."

Dennis Longmire has learned how to keep his vigil candle lit when the Texas wind blows hot and hard outside the Huntsville prison unit, like it did here Wednesday.

While Longmire protected the flame on a Virgin of Guadalupe candle outside, Jack Logie stood inside the prison’s death chamber to witness the execution of the man who murdered his son, David Logie, back in 1998 in Greensville, Texas.

Logie, along with four family members and numerous friends, came to Huntsville this week to watch Kevin Varga and his co-defendant, Billy Galloway, die by lethal injection for their crime. Varga was pronounced dead at 6:19 p.m. CST. Galloway, Varga’s former cell mate at the South Dakota State Penitentiary in the mid 1990s, is scheduled for execution today.

Ohio is set to carry out an execution this morning.  "'Mad Hitchhiker' to become Ohio's fifth execution of year today," is the title of Tom Beyerlein's report in the Dayton Daily News.

If Michael Beuke dies today, he will become one of 11 convicted killers — one per month from January through November — who has either been executed or is scheduled for execution in Ohio in 2010. That’s by far the most executions in any one year in Ohio since 1949, when 15 men died in the electric chair.

What’s more, Ohio is on track to have far more executions this year than any other state except Texas, which has either carried out or scheduled 17 executions.

“Ohio coming in even a close second is very unusual,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “Usually, it’s Texas (first) and nobody else comes close.”

The Lancaster Eagle Gazette reports, "Ohio heads for modern day execution record."  It's written by Jon Craig.

Ohio is on pace to break an ominous record: On Aug. 10, the state is expected to execute its eighth killer this year -- a modern-day record.

By year's end, if scheduled executions are carried out, Ohio could execute 11 men.

And:

The pace of Ohio executions has increased in recent years mostly because death row inmates' federal and state appeals are being exhausted, but also because of a change in the Ohio Constitution that eliminated a time-consuming stage in the state appeals process in 1995.

Barring a last-minute stay by the courts, Beuke will be the fifth inmate executed in Ohio this year, the 14th since Ted Strickland became governor and the 38th since executions resumed in Ohio in 1999 when Bob Taft was governor. Ohio's modern annual record is seven, in 2004.

According to TDCJ, eight additional executions are scheduled in Texas during 2010, including two more in May.  More execution dates will likely be set by state district courts this year.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

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

Texas carried out its eighth execution of 2010, last night in Huntsville.  It was the 455th Texas execution since 1982.  Another execution is scheduled for tonight.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 16 executions in the nation in 2010, and 1,204 executions since 1977.

The Rapid City Journal reports, "South Dakota ex-con Kevin Varga executed in Texas."

Dennis Longmire has learned how to keep his vigil candle lit when the Texas wind blows hot and hard outside the Huntsville prison unit, like it did here Wednesday.

While Longmire protected the flame on a Virgin of Guadalupe candle outside, Jack Logie stood inside the prison’s death chamber to witness the execution of the man who murdered his son, David Logie, back in 1998 in Greensville, Texas.

Logie, along with four family members and numerous friends, came to Huntsville this week to watch Kevin Varga and his co-defendant, Billy Galloway, die by lethal injection for their crime. Varga was pronounced dead at 6:19 p.m. CST. Galloway, Varga’s former cell mate at the South Dakota State Penitentiary in the mid 1990s, is scheduled for execution today.

Ohio is set to carry out an execution this morning.  "'Mad Hitchhiker' to become Ohio's fifth execution of year today," is the title of Tom Beyerlein's report in the Dayton Daily News.

If Michael Beuke dies today, he will become one of 11 convicted killers — one per month from January through November — who has either been executed or is scheduled for execution in Ohio in 2010. That’s by far the most executions in any one year in Ohio since 1949, when 15 men died in the electric chair.

What’s more, Ohio is on track to have far more executions this year than any other state except Texas, which has either carried out or scheduled 17 executions.

“Ohio coming in even a close second is very unusual,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “Usually, it’s Texas (first) and nobody else comes close.”

The Lancaster Eagle Gazette reports, "Ohio heads for modern day execution record."  It's written by Jon Craig.

Ohio is on pace to break an ominous record: On Aug. 10, the state is expected to execute its eighth killer this year -- a modern-day record.

By year's end, if scheduled executions are carried out, Ohio could execute 11 men.

And:

The pace of Ohio executions has increased in recent years mostly because death row inmates' federal and state appeals are being exhausted, but also because of a change in the Ohio Constitution that eliminated a time-consuming stage in the state appeals process in 1995.

Barring a last-minute stay by the courts, Beuke will be the fifth inmate executed in Ohio this year, the 14th since Ted Strickland became governor and the 38th since executions resumed in Ohio in 1999 when Bob Taft was governor. Ohio's modern annual record is seven, in 2004.

According to TDCJ, eight additional executions are scheduled in Texas during 2010, including two more in May.  More execution dates will likely be set by state district courts this year.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

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

Louisiana Legislation Would OK Waiver of Appeals

"Senate panel backs appeal waiver," is the title of Mark Ballard's report in today's Baton Rouge Advocate.

A Senate committee advanced legislation Tuesday that was executed killer Gerald J. Bordelon’s dying wish: that those facing the death penalty can waive their right to appeal and proceed with the sentence.

Bordelon, 47, was executed by lethal injection Jan. 7 for the November 2002 kidnapping, rape and murder of his 12-year-old stepdaughter, Courtney LeBlanc, of Livingston Parish. He gave up his right to appeal, but legal proceedings took an additional three years before his execution took place.

“He was frustrated because it took three years to do something that seemed so simple,” said Jill Craft, who represented Bordelon during the time leading up to his execution.

Bordelon’s sister, Melissa Wise, sat in the audience when the Senate Judiciary C committee approved without objection Senate Bill 774, which is sponsored by state Sen. Dan Claitor, R-Baton Rouge.

Immediately after the vote, Craft and Wise told each other that this bill was what Bordelon wanted.

Craft said at her first meetings with him, Bordelon took “great delight” in sharing details of the crimes he had committed.

But over time, Craft said, Bordelon became more religious and more remorseful over the acts he had committed. Bordelon also came to believe that if ever released from prison again, he would commit crimes against children again, she said.

Bordelon wrote letters of apology to the victim’s sister and mother, asking for forgiveness, Craft said. He also asked Craft to pursue legislation that would streamline the procedures in order to speed the time between when a convicted murderer forgoes further appeals and when capital punishment is carried out.

Craft noted that higher courts automatically review the cases of all defendants convicted of capital crimes and sentenced to death. That would not change should SB774 become law, she said.

But the measure, which was supported by the Louisiana District Attorneys Association, would require a judge to inform the defendant, orally and in writing at the time of sentencing, “of this right to waive appeal.”