The StandDown Texas Project

Texas CCA Stays Green Execution - UPDATED

An updated AP report has been filed, "Killer of 12-year-old girl wins execution reprieve."

Green's lawyers were in the courts as his execution neared, contending his delusions and mental illness made him ineligible for execution and that he was entitled to a competency hearing.

The U.S. Supreme Court has held mental illness does not disqualify someone from execution as long as the prisoner understands the punishment he is facing and why he is being punished.

When Green's appeal was turned down earlier this week by State District Court Judge Lisa Michalk, his trial court judge in Montgomery County, his lawyers took their appeal to the Court of Criminal Appeals in Austin. The appellate court, in halting the punishment, said it "needs more information" about how Michalk arrived at her decision about Green's competency because some standards mentioned in the record of her decision "are not applicable in this instance."

The appeals court gave Michalk 15 days to file a written clarification of her decision in Green's competency motion. The court also ordered Green's attorneys and prosecutors to submit written arguments discussing whether claims of competency legally can be raised under current state law.

"Execution of Texan on death row is halted," is the AP report via the Houston Chronicle.

Jonathan Marcus Green received a stay of execution from the Texas Court of Criminal Appeals today, hours before he was to be put to death for the rape and murder of a 12-year-old Montgomery County girl.

The state’s highest court for criminal appeals stopped the execution after a telephone conference about four hours before Green was to enter the execution chamber. The court ordered the stay so that his mental competency can be further explored. Green’s attorney claims that he suffers from schizophrenia and no longer meets the criteria set forth by law to be eligible for execution.

The law requires that a condemned person have a rational understanding of the reason he is being put to death. A 2007 U.S. Supreme Court ruling in the case of Texas inmate Scott Panetti declared that an inmate’s literal understanding that he is being put to death following his conviction for a particular crime may not be protection enough to halt the killing of clearly delusional individuals.

The Supreme Court articulated the standard for competency to be executed in the 1986 case, Ford v. Wainwright.  The Court revisited the issue in 2007, examining the 5th Circuit's application of the Ford standard, in the case of Scott Panetti, a severely mentally ill Texas death row inmate.

Earlier coverage begins with this post. 

Nebraska Execution Chamber Remodeled

"Lethal injection table ready," is the title of Paul Hammel's report in the Omaha World-Herald.

Physically, the state is ready to carry out executions again.

State corrections officials said Tuesday that the remodeling of the death chamber at the Nebraska State Penitentiary has been completed.

The electric chair, ruled an unconstitutionally cruel and unusual form of capital punishment by the Nebraska Supreme Court, is now in storage.

Its place has been taken by a lethal injection table, complying with a 2009 law that changed the state's means of execution from electrocution to lethal injection.

“We have the chemicals on order, and that's it. Everything else is prepared,” said Bob Houston, director of the Nebraska Department of Corrections.

It has cost more than $50,000 to make the necessary changes, Houston said.

Nebraska had been without a legal means to carry out the death penalty since the February 2008 ruling on the chair. The last person executed by the state was Robert Williams, who killed three women. He was electrocuted in 1997.

It's not likely that a lethal-injection execution will occur soon.

Jill Francke, statewide coordinator for Nebraskans Against the Death Penalty, said any death-row inmate scheduled for execution would have legal appeals to file. Her group, she said, will challenge the new lethal injection law.

Observers have said the legal challenges could delay any execution for a year or more.

And:

The Attorney General's Office has said it would seek an execution date for Carey Dean Moore, 52, who was convicted in 1980 for the murders of two Omaha cabdrivers.

His case is the oldest among the 12 men on death row. Moore came within six days of dying in the electric chair in 2007, when the Nebraska Supreme Court canceled the execution to examine whether electrocution was cruel and unusual punishment.

Houston said state officials consulted with Missouri, Indiana and Texas in designing the new death chamber.

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

More on Phan v. The State

Law.com's Fulton County Daily Report today carries, "Ga. Capital Case Revives Controversy Over State's Public Defender System."  It's written by Janet L. Conley. It's a must-read for those following Georgia's indigent defense crisis.

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel.

If the lower court finds that there was a systemic breakdown affecting this particular defendant, an indigent Vietnamese immigrant who allegedly killed another Vietnamese man and his 2-year-old son and severely injured the man's wife in execution-style, back-of-the-head shootings, Justice Harold D. Melton wrote for the majority in the 4-3 decision, then that determination must be factored into an analysis of whether the defendant's speedy trial rights were violated.

In a concurrence, Justice David E. Nahmias appeared to suggest a solution.

"The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation ... and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case," Nahmias wrote.

Then Nahmias, a former Northern District of Georgia U.S. Attorney, pointed out the alternative, citing U.S. Supreme Court precedent: "Once a constitutional speedy trial violation is found to exist, however, the remedy will be dismissal of the case."

And:

In 2005, Georgia created a statewide public defender system in place of the county-run systems of the past. The idea was that the state would shoulder the bulk of indigent defense costs, except in counties that opted out of the plan. Gwinnett County opted out and receives only a small stipend from the state for indigent defense in non-capital cases. The state, however, is responsible for 100 percent of the defense funding for indigent capital cases in both opt-in and opt-out counties. Capital cases are handled by the Office of the Georgia Capital Defender.

The distinction between opt-in and opt-out counties is an important one in this case, because the defendant's attorneys, Bruce S. Harvey and Christopher W. Adams, alleged that they were unable to adequately represent their client, Khahn Dinh Phan, because the state could not provide adequate funding for the case.

While the state's capital defender system does not have enough money to fund a death penalty case, Gwinnett County does have enough to fund a non-capital murder trial, Adams said.

Earlier coverage begins with this post. Phan v. The State is available in Adobe .pdf format.

Sears v. Upton

In its final batch or orders, released yesterday, the Supreme Court instructeded Georgia to examine the above styled case for ineffective assistance of council.  Sears v. Upton begins on page 5 of the Adobe .pdf document.

Today's Atlanta Journal-Constitution reports, "Supreme Court says Cobb death case needs another look."  It's written by Bill Rankin.

The U.S. Supreme Court on Tuesday ordered Georgia courts to take another look at a Cobb County death-penalty case and consider claims that defense lawyers mishandled the case.

The ruling, over the objections of four justices, stated that attorneys for Demarcus Ali Sears tried to get jurors to spare Sears by noting he came from a stable and loving family. A death sentence would have devastated his family, the lawyers said.

And:

In its decision, the high court said the defense lawyers failed to conduct an adequate investigation, and consequently did not know Sears had been exposed to a physically abusive relationship by his parents and had been sexually abused and inappropriately disciplined. Moreover, Sears had suffered such significant frontal lobe brain damage that one expert determined he was among the "most impaired individuals in the population."

Such evidence might not have endeared Sears to jurors, "but it might well have helped the jury understand Sears and his horrendous acts -- especially in light of his purportedly stable upbringing," the decision said.

The court returned the case with instructions that a court properly follow U.S. Supreme Court precedent in deciding whether Sears' lawyers failed to provide a constitutionally effective counsel. Atlanta lawyer Bob Edwards, who represented Sears on appeal, said, "We're very, very grateful for the court's decision."

Related posts are in the ineffective assistance of counsel index.

Dems' Caution Over Capital Punishment

That's the title of an editorial in today's Dallas Morning News regarding the platform of the Texas Democratic Party, adopted at its state convention.  LINK

How much caution is too much when it comes to exercising the power of life and death in the name of the state?

Consider that the courts have gotten it wrong – awfully wrong – in several cases. Men have walked off death row because they were able to show bogus charges, thin evidence, junk forensic work or shaky witnesses. It's still an open question whether an innocent person has died on the executioner's gurney.

A list of reforms to help safeguard against that possibility was included in the platform adopted last week by the Texas Democratic Party. Most should make sense even to Texans who support capital punishment but who are troubled by the ghastly thought of taking a life in error.

One reform has particular resonance for Dallas County, which holds the nation's record of 20 DNA-proven exonerations of innocent people sent to prison (all in non-capital cases).

The Democrats' platform supports testing of "any possibly exculpatory DNA evidence to ensure guilt or innocence." In light of what we know today about the fallibility of the justice system, the right to DNA testing is painfully obvious, yet it's not something Texas courts guarantee.

The Democrats' platform doesn't advocate an end to capital punishment but asserts that "Texans must be assured that it is fairly administered." To accomplish that, the state party calls to establish a Capital Punishment Commission to study the death penalty system, and Democrats back a moratorium on executions until the study is complete.

That's not as far-reaching a move as this newspaper advocates; we would end executions altogether because of grave doubts that the justice system ever can guarantee an evenly administered, error-free application of the death penalty.

Short of abolition, a moratorium to allow thorough analysis of the state's justice system would be a prudent step.

At the Morning News' Death Penalty blog, editor Michael Landauer posts, "Texas Democrats strike right tone on death penalty."

In its platform adopted last week, the Texas Democratic Party seems to have it right on capital punishment. The party does not go as far as we do. We want to abolish the death penalty in Texas. Democrats want to win elections. I get that. But the plank in the platform on Capital Punishment is a good place to start for lawmakers considering common-sense reforms that people on both sides could agree on:

Capital Punishment When capital punishment is imposed, Texans must be assured that it is fairly administered. Texas Democrats extend our deepest sympathies to all victims of crime and especially to the families of murder victims, and we strongly support their rights. The Texas death penalty system has been severely criticized by religious leaders, appellate courts and major newspapers that have observed that the current system cannot ensure that innocent or undeserving defendants are not sentenced to death. The Dallas Morning News has called for abolition of the death penalty in Texas. In the modern era, Texas has executed over 400 people, far more than any other state in the nation. The frequency of executions and inadequacies in our criminal justice system increase the likelihood that an innocent person will be executed. The State of Texas may have already executed at least two innocent people, according to major newspaper investigations into the cases of Carlos DeLuna and Cameron Todd Willingham. Another inmate, Ernest Willis, was exonerated and released from Texas Death Row in 2004 after 17 years of wrongful imprisonment.

We condemn Governor Perry's manipulation of the forensic science commission investigation of the science which led to the execution of a possibly innocent person.

In order to promote public confidence in the fairness of the Texas criminal justice system, Texas Democrats support the establishment of a Texas Capital Punishment Commission to study the Texas death penalty system and a moratorium on executions pending action on the Commission's findings.

Laundauer's post contains the full party platform plank on capital punishment.

Texas Execution

Texas is scheduled to carry out its 14th execution of the year, tonight in Huntsville.  It would be the state's 461st 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. 

The Courier of Montgomery County has, "Judge denies execution stay for Jonathon Green."  It's written by Nancy Flake.

A Montgomery man scheduled to die Wednesday for the June 21, 2000, murder of a 12-year-old Dobbin girl is mentally competent for execution, a Montgomery County judge ruled Monday.

Unless the Texas Court of Criminal Appeals or a federal court rules for a stay of execution, Jonathan Marcus Green, 42, will be put to death by lethal injection at 6 p.m. Wednesday for the kidnapping, rape and strangulation murder of Christina LeAnn Neal.

And:

Green had been diagnosed as schizophrenic, Rytting argued, and could make no rational connection about why he will be executed.

“The crux is whether he had a rational understanding of what he did,” Rytting said. “Mr. Green knows what the death penalty is. But he insists he is innocent based on the belief that he was in Conroe, Texas, at the time of the murder ... and based on the belief that there is a system of beings within him, some of whom want him dead.

“That is his concept of reality.”

The Supreme Court articulated the standard for competency to be executed in the 1986 case, Ford v. Wainwright.  The Court revisited the issue in 2007 in the case of Scott Panetti, a severely mentally ill Texas death row inmate.

To date, there have been 29 executions in the nation in 2010, and 1,217 executions since 1977.

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, four more executions are scheduled in Texas during 2010, including one on Thursday evening.  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.

Another Georgia Indigent Defense Bellweather

"Court sends death-penalty case back to Gwinnett," is the title of Bill Rankin's report in today's Atlanta Journal-Constitution.

The Georgia Supreme Court on Monday declined to bar Gwinnett County prosecutors from seeking the death penalty because the state had been unable to pay lawyers representing the accused.

The court, in a 4-3 decision, returned the case to a Gwinnett judge, instructing him to determine whether an actual breakdown in the public defender system violated Khan Dinh Phan's right to a speedy trial.

Justice David Nahmias, who joined the majority but wrote separately, warned prosecutors to move the case as quickly as possible.

"Time will not be on the state's side, and the trial court and the parties should be keenly aware that the difficult and close questions this case raises will need to be addressed with alacrity," Nahmias wrote. If a speedy trial violation is found to exist, he noted, the remedy will be the dismissal of all charges.

Phan, who has been waiting to go to trial for more than five years, is charged with the Dec. 29, 2004, killings of 37-year-old Hung Thai and his 2-year-old son, Hugh. Authorities say Phan broke into the Thais' Lilburn home and shot the family because of a gambling debt.

Phan was appointed two lawyers, Chris Adams and Bruce Harvey. Adams was paid through August 2008 and Harvey has not been paid. During the past few years, the state public defender agency, charged by law with funding the defense of death cases, has struggled financially.

In dissent, Justice Hugh Thompson noted that the governor's office had denied a request for funds so Phan's attorneys could travel to the defendant's homeland in Vietnam to interview witnesses and that the Legislature had declined requests by the state defender agency for more funds for capital cases.

There already has been a "systemic failure" of the state to provide the basic resources for Phan to mount an effective defense, Thompson wrote.

The AP filing is, "Top Ga. court allows capital case to go forward," by Greg Bluestein.

A divided Georgia Supreme Court issued new orders Monday for how judges should assess speedy trial complaints amid a growing number of lawsuits questioning whether the cash-strapped public defender system can afford to represent poor defendants in costly capital cases.

The court's 4-3 ruling Monday also declined to block state prosecutors from pursuing the death penalty against a defendant, Khanh Dinh Phan, who has become a focal point for the debate because he claims his right to a speedy trial has been violated because he's waited in jail for more than five years while the state struggles to pay his defense bills.

And:

Both prosecutors and Phan's appellate attorneys agreed there had been a breakdown in the public defender system because of the funding problems. And a Gwinnett County trial judge ruled there was a "systemic failure" in the public defender system, but said it was unclear whether prosecutors could still pursue the death penalty.

The Georgia Supreme Court's ruling Monday attempts to provide more clarity with how judges should handle the complaints, which could rise as Georgia's tax collections continue to sputter.

It sent Phan's case back to a trial judge with instructions that it must review whether there "has been an actual breakdown in the entire public defender system prohibiting Phan from receiving counsel."

The state's top court had ruled in March there was no such breakdown in a similar case involving death penalty defendant Jamie Ryan Weis, who waited in jail for more than two years without an attorney.

If a trial court has determined the system is so broken that no qualified public defender can take the case, it should next conduct a four-part test established by a 1972 U.S. Supreme Court ruling to determine whether the speedy trial rights have been violated, the ruling ordered.

That test would involve balancing the length of the delay, the reasons for it, the timing of the complaint and the damage it has done to the case.

The Georgia Supreme Court order in Phan v. The State is via Leagle.com.  Earlier coverage of Georgia's indigent defense crisis begins with this post; related posts are in the indigent defense index.

Supreme Court Will Not Review Missouri Lethal Injection Case

The AP reports, "Supreme Court won't hear Missouri execution case."  It's written by Jim Salter, via the Kansas City Star.

The U.S. Supreme Court refused Monday to hear a case questioning the constitutionality of Missouri's death penalty method, and Missouri Attorney General Chris Koster said he would now seek an execution date for a convicted killer.

The top court's ruling was the last legal hurdle to resuming executions in Missouri, Koster said. He asked the state Supreme Court to set an execution date for Joseph Franklin, a white supremacist responsible for several killings, including the sniper shooting of a man outside a suburban St. Louis synagogue in 1977.

"Today's decision clears up any lingering ambiguities related to the constitutionality of Missouri's death penalty protocols," Koster said in a statement. "Legal hurdles have held the imposition of justice in Missouri in abeyance for 12 months. With today's ruling, these hurdles have been set aside."

Jennifer Herndon, an attorney for several death row inmates, disagreed. She said another lawsuit questioning the legality of Missouri's fatal three-drug cocktail is still pending before the U.S. Supreme Court.

"Our position is we have another lawsuit pending that is in the middle of discovery, and now is not the time to resume executions," Herndon said.

Beth Riggert, a spokeswoman for the Missouri Supreme Court, said there was no way to predict if or when the court would set an execution date for Franklin.

The lawsuit filed by death row inmate Reginald Clemons and joined by Franklin and several others on Missouri's death row challenged the training and competence of Missouri's execution team.

MissouriNet has, "SCOTUS will not hear MO lethal injection case, Koster wants executions scheduled again." by Ryan Famuliner.

Earlier coverage from Missouri begins with this post; more on the Reggie Clemons case, here.  Related posts are in the lethal injection category index.

Supreme Court Refuses to Examine Three Texas Cases

"US Supreme Court upholds Texas death convictions," is the title of Michael Graczyk's AP report via the Houston Chronicle.

The U.S. Supreme Court on Monday upheld death sentences for two Texas inmates, including a man accused of leading a gang responsible for several murders, and refused to reconsider the case of a British grandmother condemned for killing a woman and kidnapping her newborn son.

Dexter Darnell Johnson, 22, was convicted of the June 2006 shooting deaths of a young couple during a carjacking. Investigators said the Houston man was the ringleader of a group responsible for dozens of robberies and at least four homicides.

The justices also upheld the conviction of Max Soffar, 54, for a shooting rampage at a bowling alley that killed three people in 1980.

The court also refused to rehear its rejection of an appeal from Linda Carty, a 51-year-old British grandmother convicted of murdering her neighbor and taking the victim's 4-day-old son in 2001. Carty maintains her innocence, but prosecutors said she was desperate to have child after a miscarriage. The infant was found unharmed.

Carty is among 10 women on death row in Texas, the nation's busiest death penalty state. Thirteen lethal injections have been carried out this year and two more are scheduled for this week.

Execution dates haven't been set for Johnson, Soffar or Carty.

And:

Soffar and Johnson likely have another round of appeals before their executions become imminent, but Carty has nearly exhausted her appeals. Her lawyers sought a rehearing after the justices in early May refused to review her case.

Earlier coverage of the Carty case begins with this post; more on Soffar, here.

More on the Linda Carty Case

"Linda Carty, a British woman on death row in America, says that her last hope may be an appeal for clemency by David Cameron" is the Guardian article reported by Ruth Hill in Gatesville, Texas.

Gatesville is a tiny town miles from anywhere, deep in the heart of Texas, four hours drive north of Houston. There is little to it but a Wal-Mart, a drive-in movie theatre and two enormous prisons. One of the jails looming out of the flat landscape is called Mountain View. But there is no mountain, and from the prison's death row, there is no view.

This is where, in all probability, Linda Carty, the only British woman on death row in America, is living out her last weeks and months. Carty has been on death row in Texas for the past nine years, accused of murdering a young mother in order to steal her baby. Any day now, without warning, her execution date will be handed down by the authorities, following a decision by the US supreme court last month to reject her final appeal.

Sitting behind bulletproof glass inside one of Mountain View's characterless concrete buildings last week, she seemed to vacillate between residual hope and growing despair. "Waiting for my execution date to come down just makes me feel like an object. But this is a human being sitting here," Carty told the Observer, raising her softly Caribbean-lilted voice in exasperation.

Time is running out for her. Born on the island of St Kitts before it gained independence from Britain, Carty kept her British citizenship and passport after moving to Houston when she was 23. Following the supreme court ruling, she now faces the prospect of lethal injection within as little as three months, in a case that has British officials seething. They argue that international diplomatic agreements and simple justice have been trampled in the drive to get her into the busy Texan death chamber.

And:

"My trial counsel didn't bother to present a case. I didn't want anyone's baby. Do you go around accusing every woman who has a miscarriage of trying to steal someone's baby? This conviction is the most degrading thing. As a mother myself I feel so sorry for the lady who lost her life. Now someone is trying to take my life for someone else's crime," she said.

UK legal campaigners call the conduct of her case "catastrophically flawed" but admit that the odds are stacked against her in a state that is ruthless even by contemporary US standards. Last week, Carty appealed to the prime minister, David Cameron, to intervene personally and save her life. From the austere interview booth at Mountain View, Carty pleaded for help: "Now that Mr Cameron has settled in, he needs to play a much larger role if Texas is not to kill an innocent British person," she said.

"I'm not asking Mr Cameron to give me a 'get-out-of-jail free' card, I'm asking for help to get the opportunity to present my arguments with the right counsel," the 52-year-old mother of one said, nervously fingering her neat plait of hair draped over her white prison-issue overalls.

When she was arrested in 2001, the British consulate in Houston was not informed of the arrest, as it should have been in accordance with UK-US bilateral agreements. Then Carty was assigned Jerry Guerinot as a public defender. Guerinot has one of the worst records in the US for saving his clients from execution. He met her for just 15 minutes and failed to call defence witnesses at her trial.

"A decent lawyer would certainly not have let her face the death penalty and would have had a good chance of getting her acquitted," said Sophie Walker, a lawyer with the British legal action charity Reprieve. Reprieve's founder, Clive Stafford Smith, says Carty's case is a most desperate, outrageous miscarriage of justice. No forensic science evidence was presented and there were no witnesses who saw her do anything connected with the crime.

Earlier coverage of her case begins with this post; more on Carty's court-appointed trial attorney, Jerry Guerinot, here.  Related posts are in the foreign citizen index.

The Texas Attorney General's Office has published a Magistrate's Guide to the Vienna Convention on Consular Relations.

More on Capital Costs in California

James Clark posts, "Cut This: The Death Penalty," at Huffington Post.  Clark is field organizer for the ACLU of Southern California.

California's governor has proposed closing the state's $20 billion budget gap with a drastic cuts-only approach; slashing funding for vital human services without working to increase revenue. Yet one state program seems to be immune from these cuts: the death penalty.

California spends vast amounts of money prosecuting death penalty cases and supporting death row. To avoid executing an innocent person, the death penalty process is long, complicated, and expensive. Each prosecution seeking death costs approximately $1.1 million more than a trial seeking permanent imprisonment, and with more than 700 inmates, California's death row is by far the largest and most costly in the nation. In total, California's death penalty system costs taxpayers $137 million per year.

Contrast that with just $11 million per year if we replace the death penalty with permanent imprisonment. Top that off with $400 million saved if we don't build a new death row, needed because the existing one is so old and overcrowded.

Today, if Gov. Arnold Schwarzenegger were to convert the sentences of all those on death row to permanent imprisonment, the state would save $1 billion over the next five years without releasing a single prisoner.

But the death penalty is not on the chopping block. Rather than cutting the death penalty, the governor has focused on cutting the "rehabilitation" side of the California Department of Corrections and Rehabilitation. Programs emphasizing education, rehabilitation, and addiction treatment have all seen cuts to their budgets, while death penalty prosecutions continue statewide.

Clark's essay is also available at California Progress Report and this ACLU website.

Clark's post also contains this YouTube video:

More on the cost issue from California is here; the state's lethal injection process, here.  Related posts are in the cost index.

Richard Dieter on the Utah Execution

"Firing squad execution underscores inhumanity of death penalty," is the title of Richard Dieter's commentary at Jurist.  He's the Executive Director of the Death Penalty Information Center.

Gardner got the kind of execution he wanted--death by firing squad--and Utah finally got what it wanted--retribution for the murder Gardner had committed twenty-five years ago. We the people (and in this case, there was a worldwide audience) probably scratched our heads wondering what that was all about.

And:

But while the firing squad is clearly on the way out, executions by lethal injection continue under a cloak of antiseptic obscurity. The death penalty is winding down, as overwhelming evidence in this country and around the world demonstrates. Death sentences, executions, and the number of states with the death penalty have dropped sharply in the past decade. The U.S. is now one of a very small number of countries to carry out executions annually. The strong stream of progress in human rights implies that capital punishment itself will eventually be relegated to the same history as slavery, apartheid, and torture. Even as vestiges of these practices remain, they are clearly condemned in the world community. We continue to execute people in this country not because such actions are necessary but because we have not yet figured out how to extricate ourselves from this practice. In the meantime, people like Ronnie Gardner are chosen from among thousands on death row and killed because their number has come up. Occasionally they "go out in a blaze of glory," but as retiring Justice John Paul Stevens recently concluded, it is the pointless and needless extinction of life."

More commentary on the Gardner execution begins with this post.

Death Row Defender

That's the title of an editorial in the Sunday Houston Chronicle.  It's subtitled, "Those convicted of capital offenses get a much-needed advocate."

With Texas far and away the leading practitioner of capital punishment in the nation, criticism of the quality of defense for those facing the ultimate punishment has steadily mounted. It focuses on the fact that a higher percentage of poor defendants represented by court-appointed counsel are executed than those who can afford their own defense lawyers. A similar disparity in execution rates exists between minorities and Anglos charged with capital murder.

In a welcome step to provide better defense for those condemned to death by lethal injection, Texas has hired Brad D. Levenson, currently a federal public defender in Los Angeles, to run the state's newly created office for death row appeals. Levenson will head up an operation with a $1 million annual budget and a small team of lawyers.

The public defenders will assist death row prisoners filing state writs of habeas corpus, generally the last chance for prisoners to raise arguments related to innocence claims or mishandling of their cases during the legal process that led to conviction.

In an interview with the Chronicle's Lise Olsen, Levenson said his goal is "to represent indigent defendants as if they had private attorneys."

Earlier coverage of the office begins with this post.; related posts are in the indigent defense index.

Harris County Hearing Set for November 8

Juan Lozano reports, "Texas judge to hold hearing on death penalty law," for the AP, via the Houston Chronicle.

Texas' use of capital punishment will undergo legal scrutiny this fall as a judge on Friday scheduled a hearing to listen to evidence on whether there's a substantial risk the state's death penalty law allows for the possible execution of an innocent person.

State District Judge Kevin Fine set the hearing for Nov. 8 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

Fine initially granted the motion in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.

And:

Fine, a Democrat, is a judge in Harris County, which sends more inmates to death row than any other county in the nation. Texas has carried out more executions than any other U.S. state.

The November hearing could last at least two weeks and death penalty experts from around the country are expected to testify, said Casey Keirnan, one of the defense attorneys that asked for the hearing. Keirnan and Bob Loper are representing John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

"I think everybody in the United States would agree that the possibility exists" an innocent person has been executed, Keirnan said. "We think there is much more than a possibility, based on all the exonerations, all the problems with the forensics."

Kari Allen, a prosecutor with the Harris County District Attorney's Office, said her office isn't opposed to a hearing that would examine the constitutionality of the state's death penalty law.

"We are opposed if the hearing is about whether or not Texas has executed an innocent person," she said. "We do not believe (Fine) has the jurisdiction to make that sort of ruling."

Prosecutors have also objected to some of the issues that defense attorneys plan to bring up at the hearing, including the legitimacy of eyewitness testimony.

The Harris County District Attorney's Office had filed a motion asking to remove Fine from the case, accusing him of being biased against capital punishment. But another judge appointed to review the motion denied the request last month, saying Fine's impartiality could not be reasonably questioned.

Attorneys for Green, who's being held in the Harris County jail, argue Texas' death penalty statute violates their client's constitutional right to protection from cruel and unusual punishment. They say it's because the law's use has created a substantial risk that innocent people have been, and will be, convicted and executed.

Earlier coverage begins with this post.

More Reflection on the Gardner Execution

Valerie Elverton Dixon posts, "Capital punishment and the medium is the message," at the Washington Post On Faith blog.  Dixon is the founder of Just Peace Theory, and has taught Christian Ethics.  Here are two brief excerpts from this must-read:

Q: Was the Utah attorney general wrong to use Twitter, or religious language, to describe an execution? With all our technology, are we losing sight of our humanity? Should matters of life and death be reduced to a tweet?

A tweet trivializes the gravity of death by state sanction. It is wise to remember what Marshall McLuhan taught in the 1960s: "the medium is the message." Using 140 characters to announce the death of a human being by state decree is to deny the history, the philosophical, moral and legal complexities of the moment; it is to rush too fast past religious prohibitions against retribution and to evade alternative reasoning.

And:

The state does not have the right and ought not to have the power to take from an individual what it cannot restore or for which it cannot compensate that individual. This is why the issue of capital punishment is considered a human rights issue. More countries in the world than not recognize this and have abolished capital punishment. It is considered a violation of the right to life provision of the Universal Declaration of Human Rights. The International Covenant on Civil and Political Right requires signatories to agree not to carry out executions. The Conventions on the Rights of the Child prohibits execution of minors. Despite these international conventions, the United States ranks fifth in the world in the number of executions by the federal government and 35 states. China, Iran, Iraq and Saudi Arabia are ahead of us in this regard.

Related posts are in the religion and restorative justice indexes.

Utah Governor Wants Additional Appeal Limits

The Salt Lake Tribune reports, "Guv wants streamlined death penalty appeals."  It's written by Robert Gehrke.

After the state executed convicted murderer Ronnie Lee Gardner, Gov. Gary Herbert said he wants to see the appeals process for condemned prisoners streamlined, so executions can be carried out more expeditiously.

“Twenty-five years is just too long. There ought to be a process that’s more timely,” Herbert said Thursday during his monthly news conference on KUED. “It’s just too long and it becomes too much of a circus atmosphere. … And it doesn’t serve the families very well.”

Gardner was executed by firing squad June 18 for the 1985 slaying of attorney Michael Burdell during an attempted courthouse escape. He also wounded bailiff Nick Kirk. Gardner was to stand trial for shooting Melvyn Otterstrom during a bar robbery in 1984.

Nine men remain on Utah’s death row; the longest-serving is Ronald Lafferty, who was first condemned in 1985 but was re-sentenced in 1996. Douglas Carter was sentenced to death in 1986 and re-sentenced in 1992. Ralph Menzies was sentenced in 1988.

And:

Herbert said he has discussed ways to streamline the death penalty with Attorney General Mark Shurtleff.

Shurtleff had pushed for an amendment to the Utah Constitution that would let the Legislature limit post-conviction appeals. But the amendment effort was dropped after the Utah Supreme Court agreed to a rule change directing courts to not consider the merits of appeals that were not pursued with “reasonable diligence” during an inmate’s time on death row.

The rule change took effect in January, and the Utah Supreme Court referred to the rule in rejecting one of Gardner’s final appeals, finding that Gardner could have raised the issues that were grounds for appeal any time in the previous 10 years.

Also:

Utah is one of two states that does not provide any state funding for its indigent defense fund, not even for capital cases, said Darcy Goddard, legal director for the Utah chapter of the American Civil Liberties Union, leaving counties with the expense, which strains their resources and undermines the accused’s defense.

“To the extent that the governor is concerned about expediting the process, which is something I’m not going to opine on one way or another, one way to do it is to make sure the representation they get from the beginning is quality representation and the resources to mount a good, competent defense are provided,” she said.

Earlier coverage of Shurleff's efforts begin with this post.

Maryland Death Row Relocates

"Death row moves to western Md," is the AP report via the Frederick News Post.

Corrections officials say the state’s five death row inmates were taken this week from Baltimore to western Maryland. They’ll now be housed at the North Branch Correctional Institution, a maximum-security prison in Cresaptown.

Death row had been located at the Maryland Correctional Adjustment Center, formerly known as Supermax, for more than 20 years. That prison is now used to house inmates in transit and awaiting court appearances.

The state’s execution chamber remains in Baltimore.

Five men have been executed since Maryland reinstated the death penalty in 1978, most recently in 2005. The state has had a de facto moratorium on capital punishment since late 2006 because its lethal injection protocols are under review.

The Cumberland Times-News has, "Death row to be moved to NBCI," by Jeffrey Alderton. 

In February 2004, newly appointed Maryland Division of Correction Commissioner Frank Sizer said there was a “75 percent chance” that death row would be moved to the North Branch Correctional Institution once it opened next to the Western Correctional Institution on U.S. Route 220.

The Maryland Department of Public Safety and Correctional Services announced in a press release Wednesday that the state’s five death row inmates are being moved this week to NBCI from the Maryland Correctional Adjustment Center in Baltimore.

“The move occurred because the MCAC is being transitioned into a new mission that will reduce the number of beds for the Division of Correction inmates. The U.S. Marshals Service, which does not have a facility of its own in the Baltimore region, contracts with DOC for use of a portion of that facility,” read the news release.

Tory Davis' Federal Hearing Concludes

Bill Rankin writes, "Judge must decide whether Troy Davis proved innocence in cop killing," for the Atlanta Journal-Constitution.

In closing arguments Thursday, a member of Davis' legal team contended police rushed to judgment and got the wrong man in the killing. But a state attorney countered that Davis had fallen far short of producing enough new evidence to convince anyone that he did not gun down Savannah police Officer Mark Allen MacPhail as he ran to the aid of a homeless man being pistol-whipped.

At the close of the extraordinary two-day hearing ordered by the U.S. Supreme Court, U.S. District Judge William T. Moore Jr. did not issue an immediate ruling. He instructed attorneys to file legal briefs by July 7 and said he would rule as promptly as possible.

Earlier Thursday, however, Moore handed Davis' legal team a huge blow by ruling out testimony from a number of witnesses who were going to say that Sylvester "Redd" Coles told them he, not Davis, shot and killed MacPhail.

Davis has fought for a decade to get a court hearing to present his new evidence. But Moore's ruling, and decisions this week by Davis' legal team not to call a number of key prosecution witnesses who testified at the 1991 trial, ultimately may mean Davis cannot clear a difficult legal threshold set by the nation's highest court.

The U.S. Supreme Court, in a stunning ruling last August granting Davis his hearing, said Moore must decide whether new evidence "clearly establishes" Davis' innocence.

Davis attorney Jason Ewart told Moore that any reasonable juror would not convict Davis today after hearing the new evidence presented this week. That includes the recantations of four prosecution witnesses who earlier had testified they either saw Davis kill MacPhail or said Davis told them he did it. Those witnesses now say they were threatened and coerced into giving false testimony.

Ewart also expressed confidence in Benjamin Gordon, a relative of Coles', who testified for the first time Wednesday that he witnessed Coles gun down MacPhail.

And:

Davis' lawyers did not call Coles to the stand this week, and Moore made them pay for it. He ruled out testimony by a number of witnesses who would have said Coles told them he killed MacPhail, on the grounds it was inadmissible hearsay. Moore told Davis' lawyers they could have gotten around that by calling Coles to the stand and giving him the chance to rebut that testimony.

"Here's one of the most critical witnesses to Davis' defense," Moore said. "Mr. Coles is available to testify and you don't call him. Mr. Coles should have been called by you."

Philip Horton, one of Davis' lawyers, said the legal team tried unsuccessfully to serve Cole with a subpoena on Wednesday, soon after Moore said he might not give any weight to hearsay evidence. Too late, Moore shot back, noting the hearing had been set months in advance.

"Troy Davis hearing ends; no date yet for decision on new trial," is the title of the Savannah Morning News' coverage.  It's written by Jan Skutch, Jenel Few, and Michael Atkins.

Testimony that Sylvester "Redd" Coles fired the fatal gunshots into a Savannah police officer provides clear and compelling new evidence that Troy Anthony Davis should get a new trial, his lawyer argued Thursday.

Referring to testimony Wednesday by Benjamin Gordon that he saw Coles fire a shot into Mark Allen MacPhail on Aug. 19, 1989, attorney Jason Ewart argued, "This type of evidence is most important to this case."

Davis' attorneys have argued Coles, not Davis, killed MacPhail and that Savannah police committed to Davis as the murderer early on to the exclusion of all other suspects.

He contends the state failed to substantiate evidence of blood on a pair of black shorts found in the laundry room of Davis' mother, Virginia Davis, or to prove bullets taken from MacPhail's body matched those taken from a shooting victim in Cloverdale earlier Aug. 19.

But Beth Attaway Burton, senior assistant attorney general, argued the defense team had failed to produce any new evidence in the case.

"This was their chance," she told U.S. District Judge William T. Moore Jr. "Their standard is extremely high. They have not met it."

The hearing, which began Wednesday in Savannah's federal courthouse, came to an end Thursday afternoon.

After peppering attorneys with a series of questions, Moore told them he wanted briefs on a series of issues by 5 p.m. July 7, with no response time to follow for either party.

He promised to rule after receiving their responses, but said he could not give them a "time frame on that."

The U.S. Supreme Court last August directed that a federal judge take testimony to determine whether it "clearly establishes (Davis') innocence."

Russ Bynum's AP filing is, "Ga. hearing for Troy Davis closes on second day," via Google News.

Attorneys for a Georgia man on death row for slaying a police officer have told a federal judge that new evidence shows police ignored the real killer in a rush to judgment nearly 21 years ago.

But as the two-day hearing came to a close Thursday, prosecutors argued that Troy Anthony Davis' lawyers were rehashing old testimony already rejected by a jury and blaming another man for the crime through hearsay accusations that no trial court would consider.

Coverage of the hearing's first day is here.

Fifth Circuit Overturns Tyrone Williams' Sentence

The Fifth Circuit ruling in USA v. Williams is in Adobe .pdf format.

"Trucker will get new sentence in smuggling case," is the title of Mike Tolson's report in the Houston Chronicle.

A truck driver whose actions led to the deaths of 19 illegal immigrants in South Texas in 2003 will return to federal court for a new sentence after a federal appeals court tossed out his life sentence Thursday.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

The appeals court left untouched Williams' sentences of 34 years and 20 years that were handed down on related charges. The court also did not reverse the capital transporting conviction for which he received the life sentence or find merit in other appeals issues.

His attorney, Seth Kretzer, said he does not know what the effect of the 5th Circuit decision will be other than to lower the penalty to something below life without parole.

"Williams' conduct did not fall within the scope of the Federal Death Penalty Act," Kretzer said. "The death penalty should have never applied. I would assume the judge would now order a new (pre-sentence report). What that resentencing will look like, I don't know."

The appeals court said Williams' reckless disregard for the safety of 74 immigrants trapped in a trailer he was pulling through South Texas did not rise to the level of conduct necessary to become a death-eligible crime. Such conduct, the court explained, must involve an overt expression of violence. Negligence, no matter how extreme, would not meet the requirement.

The AP report, "Life sentences overturned in smuggling deaths case," is by Juan Lozano, via Google News.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

And:

In total, Williams was convicted on 58 counts of conspiracy, harboring and transporting illegal immigrants. Jurors settled on life sentences for 19 counts of transporting illegal immigrants. Prosecutors dismissed 19 harboring counts that Williams had been convicted of by jurors. On the remaining counts, U.S. District Judge Lee Rosenthal gave Williams sentences ranging from 20 years to nearly 34 years.

Earlier coverage of the case begins with this post, now inaccurately titled.

More Commentary Following Gardner Execution

Mary Sanchez' latest Kansas City Star column is, "Prohibitive cost is a bottom-line argument against the death penalty."

Keep reading if Utah’s firing squad execution last week stirred a sense of “he got what he deserved.”

Consider more details and you might be less appreciative for what state-sanctioned vigilante justice gives back to the taxpayer. And it doesn’t matter if the deed is done by a five-man firing squad like the one that killed Utah’s Ronnie Lee Gardner, or lethal injection.

If the nation’s budget crisis is a concern, that is. If news of more cuts to services like highway repairs irks you. If you are troubled by teachers being laid off because states are fiscally strapped, or police officers not being hired, or trash collectors.

The death penalty is a colossal waste of money in the 35 states that have it, including Missouri and Kansas. Adding to the insult, it is ineffective as a crime deterrent.

A state can pay $1 million more to pursue a capital case compared with pursuing any other sentence, according to a 2009 report by the Death Penalty Information Center.

But because only one death sentence is reached for every three sought, the extra expense is even more questionable.

So what does seeking the death penalty accomplish? Why, revenge, of course. The death penalty satisfies the eye-for-an-eye attitude that can’t be soothed by merely seeking the far less costly sentence of life in prison with no parole.

I oppose the death penalty because murder is wrong. It doesn’t matter if it is done by a criminal, or the state. But increasingly even people who don’t philosophically oppose it, like many in law enforcement, are chiming in too. They’re arguing that the money could be better spent elsewhere if the goal is reducing crime.

And:

Given all the information on capital punishment’s costs and ineffectiveness as a crime deterrent, revenge is the only reason people remain beholden to the death penalty.

Yet revenge is the least informed, most emotionally reactive rationale of all. And in these times of budget constraints, it’s an even shallower response than ever.

Timothy Egan posts, "The Last Firing Squad," at the New York Times Opinionator blog.  It's a must-read essay.

Around midnight last Friday the shoeless prisoner was roused from a nap and strapped into a chair. The guards put a patch over his heart, the firing squad’s target from 25 feet. Any last words?

“I do not. No.”

With that, a black hood was placed over the bald head of the condemned man, and the countdown began: five, four, three, two, one. Each of the five gunmen squeezed off a shot from a .30 caliber rifle, though one was firing a blank. At once, four bullets entered the chest of Ronnie Lee Gardner. His fist clenched. The fist opened. A few minutes later, his pulse was checked. The deed was done: the state of Utah had killed the killer.

And:

Ronnie Lee Gardner was no martyr, no wronged man. His life was trouble and pain from the beginning. Drug and alcohol abuse. Random violence. Robberies, and two murders of people who had the misfortune to get in his way.

“He believes he needs to pay for what he’s done,” the killer’s daughter, Brandie Gardner, told reporters before the execution. “But at the same time, people should know that what they’re doing is murder.”

That’s really the heart of this debate, and always has been: is it murder for society to take a life? But the firing squad raises another issue, one the witnesses of the execution last Friday are trying to grapple with: since this is state-sanctioned killing, shouldn’t we all be required to participate in some small way, like voting? When a democracy takes a life, it should be there for all to see — transparency, that favorite good government word.

More post-execution commentary is here.

Magwood v. Patterson

The Supreme Court issued its ruling in Magwood v. Patterson this morning.  The opinion is in Adobe .pdf format.  The ScotusWiki file is here.

SCOTUS Blog reports, "Court rules in favor of capital defendant in Magwood v. Patterson."  It's written by Kevin Russell.

Federal habeas law generally allows prisoners to bring a single habeas petition; “second and successive” petitions are highly disfavored and must meet very strict criteria.  This morning, the Court held in Magwood v. Patterson (No. 09-158), that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a “second or successive” petition), even if it raises grounds that could have (but were not) made against the original sentence.  Writing for himself and Justices Stevens, Scalia, Breyer, and Sotomayor, Justice Thomas explained that under the text of the federal habeas statute, when a prisoner is resentenced and appeals the new sentence, he is challenging a different judgment than was challenged in his prior habeas petition. 

"Court ordered to reconsider Alabama death row appeal," is the AP dispatch via the Montgomery Advertiser.

The U.S. Supreme Court has ordered a lower court to reconsider arguments in the appeal of Alabama death row inmate Robert Bryant Melson, convicted of killing three employees at a Popeye's restaurant in Gadsden during a 1994 robbery.

Assistant Alabama Attorney General Clay Crenshaw said Wednesday the Supreme Court decision will likely further delay the execution of Melson. He had been scheduled to die this month by lethal injection at Holman Prison in Atmore.

Crenshaw said the Supreme Court's action could delay Melson's execution by as much as a year. Officials with the Federal Defenders' Office in Montgomery, which represents Melson, did not immediately return a call seeking comment.

The Alabama Supreme Court voted 4-3 earlier this year to delay Melson's execution while the U.S. Supreme Court hears arguments in the case of a Florida death row inmate who raised an issue similar to Melson's.

The issue was whether appellate courts could consider arguments in a death row inmate's appeal even though the prisoner missed his deadlines for filing the appeal.

In the Florida case, the U.S. Supreme Court said a federal appeals court could consider parts of the inmate's appeal even though he missed filing deadlines.

In Melson's case, the high court asked the 11th U.S. Circuit Court of Appeals in Atlanta to hold further hearings on Melson's appeal. Crenshaw said the court could consider Melson's appeal itself or return the case to a lower court.

Mary Orndorff posts, "Alabama death sentence reversed by U.S. Supreme Court," for the Birmingham News.

An Alabama death row inmate will get another chance to challenge his sentence after a decision Thursday by the U.S. Supreme Court.

Billy Joe Magwood, twice sentenced to death for the 1979 murder of the Coffee County sheriff, will be allowed to appeal again because a majority of the justices decided the appeal of his second sentence was not a "second or successive" attempt, but instead a brand new sentence that could be challenged anew.

"Because Magwood's habeas application challenges a new judgment for the first time, it is not 'second or successive,'" according to the opinion.

Earlier coverage of the case is here.

News Coverage of the Troy Davis Hearing - Day 1

Today's New York Times carries a brief item, "Georgia: Witnesses in Murder Case Recant," by Shaila Dewan.

In an unusual hearing ordered by the Supreme Court that began in Savannah on Wednesday, several witnesses said they had concocted testimony that Troy Anthony Davis killed a police officer, Mark MacPhail, in 1989. Last August, the Supreme Court ordered a federal district court to determine if new evidence “clearly establishes” Mr. Davis’s innocence, its first order in an “actual innocence” petition from a state prisoner in nearly 50 years, according to Justice Antonin Scalia, who dissented.

The latest AP filing is, "Ga. death row inmate in rare innocence hearing," by Russ Bynum.

In U.S. District Court on Wednesday, Davis' lawyers rested their case after calling nine witnesses to support that claim. The hearing will continue Thursday with prosecutors presenting rebuttal evidence.

Judge William T. Moore said he's highly skeptical of testimony that another man has admitted to shooting MacPhail, because Davis' attorneys did not subpoena the man they say is the real killer.

"This hearsay testimony is looked at with suspicion and great caution," said Moore, who told attorneys he may give the claims "no credence whatsoever when I make my ruling in this case."

Davis, 41, won a rare chance to argue he was wrongly convicted of killing MacPhail, an off-duty police officer who was shot as he rushed to help a homeless man being attacked near a downtown bus station.

Davis sat in the courtroom Wednesday wearing his white prison uniform and chains on his ankles, while dozens of his supporters from groups including Amnesty International and the NAACP rallied outside the courthouse.

Federal death penalty appeals usually look only at questions of due process and constitutional rights. But the nation's high court last summer took the unusual step of granting Davis a chance to prove his innocence.

Legal experts say the Supreme Court set a tough standard for Davis. The court's August decision said his attorneys must "clearly establish" Davis' innocence.

"Witnesses back off testimony against Troy Davis," is the title of Bill Rankin's Atlanta Journal-Constitution report.

One witness after another raised their right hands Wednesday and swore to tell the truth, just like they did 19 years ago when their testimony helped put Troy Anthony Davis on death row.

This time, however, four key prosecution witnesses gave markedly different statements, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing Officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking lot late one summer night in 1989.

The extraordinary hearing, ordered by the U.S. Supreme Court last August, continues Thursday as lawyers for the state Attorney General's Office wrap up their side of the case.

Rankin also wrote the sidebar, "Then and now: Witnesses change their stories," for the Journal-Constitution.

The Savannah Morning News has, "Troy Davis hearing could end today," written by Jan Skutch and Pamela E. Walck.

A man attorneys for Troy Anthony Davis contend killed a Savannah police officer bragged he was the one who committed the crime for which Davis was convicted, a Chatham County jail inmate testified Wednesday.

Sylvester "Redd" Coles told him, "Troy took the fall," for the slaying he committed, Anthony Hargrove testified.

Hargrove, who somewhat gleefully admitted he has "been in the system 20 years plus change," said he did not reveal the admission because he had legal problems in Florida, calling it "self-preservation."

Davis, 41, is in federal court here in Savannah on what his defense team contends is new evidence that may have resulted in his acquittal in the Aug. 19, 1989, slaying of Mark Anthony MacPhail.

Davis' team rested their main case about 4 p.m. Wednesday, "a lot earlier" than their witness list indicated, U.S. District Judge William T. Moore Jr. said before recessing court about 5:30 p.m.

Moore is under a mandate from the U.S. Supreme Court to hear evidence he finds "clearly establishes (Davis') innocence."

He halted the hearing after Senior Assistant Attorney General Beth Attaway Burton ran out of witnesses for the day.

The hearing resumes at 9:30 a.m. today with the state attorney general's lawyers expected to call their final eight witnesses.

The Morning News website also has, "Latest updates from the second day of the Troy Davis hearing."

Lucile Malandain posts, "Rare US hearing could give death row inmate a second chance," for AFP.

The witnesses, some of whom were illiterate, in prison, or in their teens when they originally testified, provided the key evidence that convicted Davis, an African-American, of murdering Mark McPhail, a white police officer.

Davis, now 41, has always proclaimed his innocence, and one-by-one Wednesday, witnesses admitted they had lied to help convict him.

"When the police arrived, I told them I could barely recognize the shooter," said Atwan Williams. "I was scared, nervous, I was just trying to take off."

Asked if he had read back the deposition he gave to police, Williams replied: "No sir, I can't read."

Kevin McQueen told the court he had been given a lighter sentence in return for claiming Davis had confessed to him. "I was mad at him," he said.

Several witnesses said Wednesday that they had lied because they were intimidated by the police.

Earlier coverage begins here.  Amnesty International USA has more information at Justice for Troy.

Troy Davis Hearing Begins in Savannah

"Court to hear Troy Davis' innocence claims in cop's 1989 killing," is the title of the report by Bill Rankin in today's Atlanta Journal-Constitution.

Troy Anthony Davis returns today to Savannah, where he was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony. Today in U.S. District Court in Savannah he will get that chance, thanks to an extraordinary ruling last year by the nation's highest court.

Before today's hearing, spectators and members of the news media hoping to get a seat began forming a line outside the federal courthouse before 6 a.m. Davis arrived shortly before 7 a.m., accompanied by an armed escort of Chatham County police officers.

Vigils and rallies were held Tuesday night in Savannah and Atlanta on behalf of Davis and slain Savannah Police Officer Mark Allen MacPhail.

Davis' innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis' scheduled execution has been halted three times -- on one occasion just two hours before he was to be put to death by lethal injection.

Last August, for the first time in nearly half a century, the U.S. Supreme Court took a case filed directly to its docket, instead of hearing an appeal of a lower-court ruling. It accepted Davis' last-ditch innocence claim after Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing to determine whether Davis' new claims "clearly establish" his innocence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

Still to be decided is what standard U.S. District Judge William T. Moore Jr., who will preside over the hearing, will use to evaluate Davis' new innocence claims.

Must Davis prove by clear and convincing evidence that he is innocent so the judge is convinced he did not commit the crime, asked Georgia State University law professor Anne Emanuel. Or does Davis have to show that no reasonable person, after looking at the newly discovered evidence, could find him guilty beyond a reasonable doubt?

"The case does present, in very stark terms, the tension between justice and finality," Emanuel said.

Until the U.S. Supreme Court stepped in, Davis' attempts to get his new evidence presented in court had been repeatedly stymied by the federal Antiterrorism and Effective Death Penalty Act, legislation enacted in 1996 to streamline appeals of capital sentences.

But Davis' case may now force the U.S. Supreme Court to decide whether the Eighth Amendment's ban against cruel and unusual punishment also bars the execution of an inmate who has been convicted and later proved he is innocent, a claim the high court has never recognized.

And:

Davis' lawyers have identified 14 witnesses they plan to call. The state has said it will call 17 witnesses, many of them officers who investigated the case and members of the prosecution team.

The Savannah Morning News has, "Troy Davis heads back to court in Savannah," by Jan Skutch.

Troy Anthony Davis today returns to a Savannah courtroom to try to disprove his 1991 murder conviction.

U.S. District Judge William T. Moore Jr. will take testimony - without opening statements - to determine whether Davis' defense team can "clearly establish" his innocence in the Aug. 19, 1989, slaying of off-duty Savannah police officer Mark Allen MacPhail.

Attorneys for Davis, 41, contend the state and federal appellate reviews have focused on "technicalities" while depriving him of a hearing on evidence not available at the first trial that would have led to a different verdict.

Attorneys with the state attorney general's office contend the evidence simply rehashes that already dismissed by earlier court reviews.

Moore, under a U.S. Supreme Court mandate that he hear evidence, has given clear notice he intends to get right to the evidence beginning at 10 a.m.

He will deal with legal arguments from both sides later.

The Morning News has a link to its complete coverage of the Troy Davis case.

Earlier coverage begins with this post.

A Long-Running Louisiana Case

James Ridgeway and Jean Casella write, "What's Next for Albert Woodfox of the Angola 3?" for Mother Jones.

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitientiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for the last three decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.

It’s been nearly two years since a federal district court judge in Baton Rouge overturned Woodfox’s conviction for the 1972 murder of a guard at Louisiana’s Angola prison. Judge James Brady’s 2008 ruling, which ordered the state to retry Woodfox or release him, brought new hope to the 63-year-old Woodfox, who has been in Angola–originally for armed robbery–since he was 24. A member of the group known as the Angola 3, Woodfox has always contended that he was effectively framed for the guard’s murder–and then thrown into permament lockdown–because of his involvement with the Black Panther Party, which was organizing against conditions in what was then known as the "bloodiest prison in the South."

Without drawing any conclusions about Woodfox’s guilt or innocence, Judge Brady of the Federal District Court, Middle District of Louisiana, concluded that Woodfox had not received due process at his 1998 trial (which was intself a replacement for a faulty 1973 trial).

And:

In addition, the decision in Woodfox’s case shows the crippling effects on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombings. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.

As the Fifth Circuit noted in its ruling, "The AEDPA requires that federal courts "defer to a state court’s adjudication of a claim" unless the state court decision ran "contrary to…clearly established Federal law, as determined by the Supreme Court," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." And as the judges pointed out, "An unreasonable application of federal law is different from an incorrect or erroneous application of the law."

In other words, the state courts could be wrong, they just couldn't be so far out as to be undeniably "unreasonable." And in the end, the Fifth Circuit judges agreed with the State’s argument that "the district court failed to apply the AEDPA's heightened deferential standard of review to Woodfox's ineffective assistance claims." For Woodfox, this means that his time in prison stretches before him with no foreseeable end in sight. His lawyers have promised to return to his case with new evidence, but that could take years, and the outcome might still be the same. In the meantime, Woodfox and fellow Angola 3 members Herman Wallace and Robert King have mounted a constitutional challenge to their solitary confinement, which may come to trial before the end of this year. That case, too, will eventually go before the Fifth Circuit–and even a win would mean only a release from permanent lockdown, not from Angola.

Ridgeway is the prop of the excellent Solitary Watch website, and he's posted an update focused on the federal Anti-Terrorism and Effective Death Penalty Act.

An Update on Gaile Owens

Today's Memphis Commercial Appeal reports, "Tennessee Methodists ask Bredesen to halt execution of Bartlett native Gaile Owens," written by Richard Locker.

The Tennessee Conference of the United Methodist Church is asking Gov. Phil Bredesen to spare Bartlett native Gaile Owens from her scheduled Sept. 28 execution for the hired murder of her husband in 1985.

Tennessee Methodists approved a resolution at their annual conference last week that both reaffirms the church's opposition to the death penalty and calls for the commutation of Owen's death sentence to life in prison.

And:

"In no way, shape, or form do we condone the decision that Gaile made that caused the death of her husband," Rev. Brian Rossbert, a Nashville pastor who co-sponsored the resolution, said Monday. "We pray for God to forgive at the same time we pray that the State of Tennessee not make the same choice to end a human life."

Earlier coverage of the Gaile Owens case begins with this post.  More on the case and her clemency effort can be found at Friends of Gaile.  Last year, John Seigenthaler wrote about the Owens case in a series of articles in the Tennessean, noted here.

A Minister Speaks Against the David Powell Execution

Rev. Chuck Freeman has posted, "If St. Paul Had Been a Texan, Our 'Christian' Officials Would Have Executed Him," at Huffington Post.  Freeman is Minister of Spiritual Life with Live Oak Unitarian Universalist Church in Austin. He is the creator; producer and host of the radio program “Soul Talk,” and affiliated with the Free Souls Project.

I have to say, I get the keyboard blues from being constantly compelled to call out "Christians" who practice tribal religion in lieu of Jesus-infused Christianity. We've got legions of 'em here in the Lone Star State. They populate and dominate our death penalty industry.

Led by Governor Rick Perry, these believers wear Christianity on their chest like a Superman logo. They boldly and proudly proclaim the United States to be a Christian nation. If Texas were an independent nation, we would be the seventh-largest practitioner of capital punishment, just a smidgen behind Yemen, a failed state with a medieval judicial system.

And:

It recently struck me like a Damascus road jolt that if St. Paul was a Texan the ruling "Christians" of this grand Republic would have executed him.

He was an accessory to the murder of Stephen, one of the original church Deacons. Among the groups involved in his stoning were the "Freedman." Today they would be FOX commentators. Before his Damascus road conversion St. Paul (then Saul) was "breathing threats and murder against the disciples of the Lord." Saul had received warrants from the Supreme Court to search the synagogues for Christian disciples whom he would arrest and drag to prison.

God entreated a disciple named Ananias to go visit blinded by the light Saul. He was skittish to do so because he had "heard how much evil he has done to the saints at Jerusalem."

But God assured Ananias, "He is a chosen instrument of mine to carry my name before the Gentiles and kings and the sons of Israel."

Since Saul was afforded the opportunity for redemption he became Paul, the greatest evangelist in the history of the Christian faith.

If Saul were a Texan he would have never become St. Paul. Before he had a chance to print up his gospel tracts, our pious officials would have executed him just like they did David Powell. The crude and cruel irony is that in so doing they likely would not have the honor of calling themselves by that noble name: Christian.

Earlier commentary on the Powell execution begins with this post; related posts are in the religion index.

More Editorial Reflection on the Gardner Execution

Today's Des Moines Register carries the editorial, "Executing criminals always a barbaric act."

About 50 people were executed for crimes in the United States in 2009 - an average of one a week. National media pay little attention to most of them. But everyone was paying attention to convicted killer Ronnie Lee Garner last week. Journalists around the country clamored to cover the Utah man's death.

That attention was for one reason: The state executed him using .30 caliber rifles. Gardner requested this method of death before Utah outlawed it. This was no "run of the mill" lethal injection execution. Gardner was strapped to a metal chair and wore a black target on his chest. The shots from the guns killed him quickly, according to witnesses.

t's the kind of story that piques the country's interest.

But it shouldn't. Not more than any other execution the government carries out in this country.

A firing squad should be no more fascinating - or acceptable - than any other form of execution.

Because no matter how it's done, there is simply no "humane" or "interesting" way to execute a person. There is no way for a civilized country to justify killing its own people. Locking up murderers for life punishes the criminals while protecting society.

And:

"Eye for an eye" punishments are barbaric. Juries don't order rapists to be raped or those guilty of assault to be beaten. A civilized country is supposed to rise above the level of criminals.

There are signs a growing number of Americans view the death penalty as wrong. The U.S. Supreme Court has outlawed it for the mentally retarded and teenagers. The number of death sentences per year has dropped in the past 10 years. Over the years, tolerance for subjecting criminals to gruesome, painful executions has diminished. Gone are the days of public hangings. It's easier to stomach the idea of putting someone "to sleep" with lethal doses of drugs.But there should be no tolerance for a civilized country putting anyone to death - using any method.

"Killing the condemned," is the editorial of the Daily Freeman in upstate New York.

Ronnie Lee Gardner, 49, was sent to his maker Friday by a volley of four bullets from a firing squad, the consequence of his 1985 courthouse murder of lawyer Michael J. Burdell. Gardner had taken a court appearance on a charge of a previous murder as an opportunity to attempt to escape.

Whether you support or oppose capital punishment — and, for the record, we do oppose it — it’s hard to make an argument that Gardner got a raw deal. The world is a better place without him.

Some, however, have questioned the means of execution.

If the people of a state decide to make capital punishment part of their justice system, they do have an obligation to see the means is humane, as required by the Constitution.

Although it may surprise, there had been no objective evidence that the firing squad has been anything but efficient. Condemned prisoners targeted at the heart at close range by multiple marksmen with rifles die quickly.

And:

Simply put, we are limited in our options because, while we want to kill the condemned, we want to kill them softly, in a manner appropriate to the cold blood of judicial sanction, and in way that, as much as possible, keeps the blood of the executed splashing onto our hands.

Perhaps the problem is that that simply cannot be done.

Earlier commentary on the execution begins here.

A New Hampshire Judge Speaks Out Against Captial Punishment

Foster's Daily Democrat today carries, "On New Hampshire's death penalty," by Joseph P. Nadeau.

It has been my good fortune to serve as a judge in New Hampshire for 37 years. For 13 of those years I was presiding justice of the Durham District Court. I served as a justice of the Superior Court for 18 years, nine of which I spent as chief justice. And I sat on the Supreme Court for six years before retiring in December of 2005.

Last week, I appeared before the New Hampshire Commission to Study the Death Penalty, not to talk about facts and statistics or trials and cases but to address the moral issue of death as punishment.

The way we have been dealing with the death penalty for years is to talk about enacting laws, adopting procedures, establishing practices and providing mechanisms, as if by creating an elaborate process we could somehow sanitize the death penalty and thereby ignore the moral issues that capital punishment presents. We cannot.

I appeared before the Commission to answer one straightforward but complex question: Do I believe the systematic killing of another human being by the state, in my name, is justified?

My answer to that question is, No.

And:

So after thirty-seven years on the bench; after presiding over hundreds of jury trials; after sitting on numerous criminal cases; after listening to witnesses in scores of sentencing hearings; after considering information in thousands of probation reports; after imposing sentences upon countless convicted defendants; after entertaining the arguments of lawyers at every level of skill; after talking with a host of judges and corrections officials; and after continued personal reflection; this is what I believe about capital punishment:

— The threat of its use is not a deterrent to the commission of a homicide, because those who kill do not consider the sentence before they act or do not expect to be caught, or both.

— The threat of its use is not necessary to protect the people of New Hampshire for the same reason.

— Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being.

— Its abolition does not diminish the voice of murder victims because the right of all victims to be heard is intended to come at the time defendants are sentenced not at the time they are charged.

— It provides no more justice than life in prison without parole because justice is not measured by the sentences we impose.

— To seek and carry out the death penalty costs the state much more in time and taxes than to prosecute and confine a person to prison for life.

— To seek and carry out the death penalty consumes inordinate resources of courts, prosecution, defense and law enforcement.

— The decision whether to seek the death penalty is too easily swayed by public opinion, political pressure and media attention.

— Its potential as a prosecutorial tool is outweighed by its capacity for misuse.

— It is too easily subject to selective prosecution.

— It is too likely to be imposed upon minorities and the poor.

— It is too likely to depend upon the persuasiveness of lawyers.

— Its imposition is too readily subject to the emotions of individual jurors.

— Its imposition is too clearly dependent upon the composition of the particular jury empanelled for each case.

— It inevitably leads to disparate sentences.

— It creates the unacceptable risk that a person may be wrongfully executed.

— It exalts rage over reason.

— It diminishes our character as a people.

— And in the end, I believe it serves just one purpose: vengeance.

Earlier coverage of the New Hampshire Study Commission begins with this post.

Justice Stevens' Legacy and the Troy Davis Case

"Stevens leaving legacy of judicial care," is the title of an OpEd in today's Atlanta Journal-Constitution.  It's by Norman S. Fletcher, a former Georgia Supreme Court Chief Justice.  He's also a member of the Constitution Project’s Right to Counsel Committee.  It's a must-read.  An excerpt:

One issue with which Justice Stevens may be closely associated is the death penalty. In 1976, he voted with the majority to reinstate the death penalty, ending a four-year period during which capital punishment resided in constitutional limbo.

Justice Stevens’ views of the death penalty and public opinion about it have evolved since 1976. In a 2007 case upholding the constitutionality of lethal injection procedures, Justice Stevens, while feeling compelled as a matter of precedent to vote with the majority, nonetheless expressed grave doubts about the death penalty, calling it “anachronistic.”

But one of Justice Stevens’ last acts involving the death penalty could be the most meaningful.

Last August, the Supreme Court considered the case of Troy Davis. Davis, who is on death row in Georgia for the 1989 murder of Savannah police Officer Mark MacPhail, was convicted solely on the basis of eyewitness testimony. Most of those witnesses have now recanted their trial testimony, some alleging that police coerced their original statements, and several new witnesses have come forward to implicate another suspect.

In ordering a federal court to hold a hearing on this new evidence, Justice Stevens stated: “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

He explained that Davis’ innocence claim constituted “exceptional circumstances” requiring the court use its rarely-invoked original habeas corpus jurisdiction.

Justice Stevens’ leadership in this case was a triumph of the common-sense notion that innocence matters; it matters more than procedural technicalities. No matter whether one opposes or supports the death penalty, I would hope we can at least agree that the innocent should not be executed.

The hearing the Supreme Court ordered will take place Wednesday in Savannah. Finally, a court will consider the weight of the new evidence. Prior to the Supreme Court decision, state and federal appeals courts relied on procedural grounds for refusing to hold evidentiary hearings.

I served on the Georgia Supreme Court when the Davis case came up on direct appeal in 1993. We upheld the conviction.

But that was before most of the witnesses had recanted their trial testimony. I was no longer a member of the court when it rejected, by a 4-3 vote, Davis’ extraordinary motion for a new trial in March 2008.

The court did not order an evidentiary hearing. If I had been on that court, the vote might have been 4-3 the other way.

It is by such razor-thin margins that we determine who lives and who dies.

CNN has posted commentary on the Davis case, "Death row inmate's rare chance to prove his innocence," by Benjamin Todd Jealous, president and CEO of the NAACP. 

On Wednesday the saga of death row inmate Troy Anthony Davis will begin its last chapter. In an extremely rare ruling last summer, the United States Supreme Court ordered a federal judge in Georgia to grant Troy an evidentiary hearing to prove his innocence.

The ruling is unusual in that the Supreme Court has not granted this writ of habeas corpus in more than 50 years. Their decision is a strong indication that they are concerned about the constitutionality of executing the innocent -- as am I.

Although much work still must be done in our justice system to ensure the innocent do not pay the price of the guilty, the granting of this evidentiary hearing is a major step for Troy Davis and for many other likely innocent prisoners sitting on death row; Troy Davis will have an opportunity to tell his side of the story and new evidence will be considered in this nearly 20-year-old case.

The hearing will allow the testimony of witnesses who have recanted or contradicted their original eyewitness testimonies to be heard and examined in a court of law. At long last, the courts will hear critical testimony that they were prevented from hearing in the original trial.

Earlier coverage of the Troy Davis case begins here.

Caprock Regional PD Approved for Rural Texas Area

The current issue of Texas Lawyer reports, "Funding OK'd for Public Defender Office to Assist 16 Counties."  It's written by Mary Alice Robbins.

With financing from a $566,701 grant, Dickens County and as many as 15 other counties extending from the Panhandle to the Rolling Plains region will address their need for lawyers to represent indigents in criminal cases through a regional public defender program.

On June 9, the Texas Task Force on Indigent Defense (TTFID) approved funding for the Caprock Regional Defender Office. Dickens County is the sponsor for the office, which will provide representation to indigents in the other counties through local agreements.

The Fair Defense Act, passed by the Texas Legislature in 2001, requires trial courts to make prompt appointments of attorneys to represent indigents in criminal cases and sets deadlines for getting that done. For example, the act requires a small county to appoint an attorney for an indigent in a misdemeanor case within three days after a request for representation. The act led to the creation of the TTFID.

Dickens County Judge Lesa Arnold says finding an attorney who will accept a court appointment can be difficult for her county, which has a population of approximately 2,600 people.

"There is not a practicing attorney who lives in Dickens County," Arnold says.

And:

Jim Bethke, TTFID's executive director, says the task force proposed the public defender office because of "abnormally low" appointment rates in the 16 counties that potentially could participate. "This program would help those counties meet requirements of the Fair Defense Act," Bethke says.

Data on the TTFID Web site shows the appointment rate statewide and for each county, based on information submitted by the counties. The Web site shows that Dickens County appointed attorneys in only five of the 55 new misdemeanor cases in fiscal year 2009 for an appointment rate of slightly more than 9 percent. In comparison, 210,725 of the 598,777 new misdemeanor cases added statewide during the same period had appointed attorneys, for an appointment rate of almost 35.2 percent.

The Web site also shows that Dickens County appointed attorneys in 20 of the 56 new felony cases added in fiscal year 2009, for an appointment rate of about 35.7 percent. During the same period, 191,936 of the 283,619 new felony cases added statewide had appointed attorneys, for an appointment rate of almost 67.7 percent.

Bryan Wilson, TTFID's grants administrator, says the low appointment rates in Dickens County and the other counties called the task force's attention to the need for a public defender office. Wilson says the office will be phased in, with one attorney employed initially and a maximum of three attorneys if all 16 counties participate.

Dominic Gonzales, a grant program specialist at TTFID, says when the public defender office is at full capacity, it is designed to cover 40 percent of the misdemeanor cases, 50 percent of the felony cases and 90 percent of the juvenile cases in the region. In addition, the grant will provide $126,000 to purchase video conferencing equipment that will enable attorneys to meet with incarcerated clients without having to drive to Dickens.

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

Fifth Circuit Orders Evidentiary Hearing in John Balentine Case

The AP filing by Michael Graczyk is, "Condemned killer wins hearing in triple slaying," via the Austin American-Statesman.

A Texas prisoner who came within a day of execution last year for a triple slaying in Amarillo has won a court hearing to determine if his trial lawyers' poor performance unfairly contributed to his death sentence.

Convicted killer John Balentine is entitled to an evidentiary hearing after his appeals lawyer argued trial attorneys failed to develop mitigating evidence to show a jury Balentine's childhood of poverty, domestic violence and abuse, the 5th U.S. Circuit Court of Appeals ruled.

Balentine, 41, was condemned for the 1998 slayings of Mark Caylor Jr., 17, and 15-year-olds Kai Brooke Geyer and Steven Watson. Caylor was the brother of Balentine's former girlfriend, and prosecutors said the slayings capped a feud between Caylor and Balentine.

And:

Last September, the 5th Circuit halted Balentine's punishment in a one-paragraph order a day before he was scheduled for lethal injection. The court's latest ruling Friday continues the reprieve and orders a hearing to decide if there were "serious concerns that constitutionally ineffective lawyering occurred" because of the trial lawyer's failure to investigate evidence at the punishment phase of his 1999 trial in Amarillo.

The appeals court also criticized Balentine's initial appeals attorney for making "a weak assertion" that argued the trial lawyer failed to present mitigating evidence.

Balentine's current lawyer, Lydia Brandt, who took her arguments to the 5th Circuit and won the reprieve last year, said Monday that the evidentiary hearing would be set before a federal judge.

In arguments as Balentine's execution date neared, Brandt said the claims about the lack of punishment phase evidence weren't raised earlier but had been blocked in the state courts because of a broken system.

"The state corrective process as a whole was ineffective," Brandt said.

The opinion in Balentine v. Thaler is available in Adobe .pdf format.

Director Hired for Texas Office of Capital Writs

"Chief hired for state public defense office," is the title of Lise Olsen's report in today's Houston Chronicle.

Texas has hired an experienced California attorney to run its first-ever public defense office for death row appeals known as state writs of habeas corpus — considered a death row defendant's best opportunity to raise final arguments about mistakes, unheard innocence claims or misconduct.

Brad D. Levenson, now a deputy federal public defender based in Los Angeles, will get a $1 million annual budget and small team of team of lawyers to handle a dozen or more new death cases each year across the Lone Star State.

The office was created by the Texas Legislature after a series of scandals generated by ill-prepared and mostly poorly-paid death row defense lawyers assigned to handle writs of habeas corpus across Texas. Some filed poorly written documents filled with typos, factual errors and photocopied cookie cutter arguments. Others repeatedly blew important deadlines – forfeiting the rights of their clients to have any arguments considered by either state or federal courts before executions.

Only seven candidates applied for the job, said Phil Wischkaemper, an attorney who was one of five members of a special state selection committee that both included judges and defense attorneys.

And:

Wischkaemper said the selection committee unanimously supported Levenson: "We thought he was very well-qualified - even though he doesn't have the Texas experience," he said. Managing the complex investigations that can result in successful writs of habeas corpus is a skill that translates well across state lines, he said.

"The key is looking under every rock and every bush and finding out what the lawyers at trial might have missed because of negligence or because it was hidden from him purposefully," said Wischkaemper.

In an interview, Levenson promised his new office would take an aggressive approach to re-investigating all capital cases to make sure that men and women sentenced to death in Texas receive "high quality" representation and that relevant legal arguments get presented to the courts before executions occur. Levenson said his aim was to "represent indigent defendants as if they had private attorneys."

Earlier coverage of the office begins with this post.

11th Circuit Ruling on Mental Retardation

"Mental retardation burden of proof in death cases unconstitutional" by Bill Rankin is the Atlanta Journal-Constitution report.

The burden that Georgia places on death-penalty defendants to prove they are mentally retarded -- and thus ineligible for execution -- is unconstitutional, the federal appeals court in Atlanta ruled Friday.

The court, in a 2-1 decision, said that requiring defendants to prove they are mentally retarded beyond a reasonable doubt violates the Eighth Amendment's ban against cruel and unusual punishment. It also will "result in the execution of the mentally retarded," which the U.S. Supreme Court prohibited in 2002.

The decision should result in new hearings for up to 10 inmates on Georgia's death row who previously raised mental retardation claims at trial, said Brian Kammer, director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals. It also will affect all death cases going forward in which defendants claim to be mentally retarded.

The ruling corrects a "serious defect" in Georgia's death-penalty system, Kammer said. "[It] ensures that Georgia defendants will finally have meaningful protection from wrongful execution if they are mentally retarded."

The state Attorney General's Office is reviewing the decision, spokesman Russ Willard said. It could ask the entire, 12-member 11th U.S. Circuit Court of Appeals to reconsider the ruling by the three-judge panel or appeal to the U.S. Supreme Court.

Friday's ruling noted that Georgia is the only state in the country that requires a defendant raising a mental retardation claim to clear the highest burden-of-proof threshold in legal proceedings -- beyond a reasonable doubt. The ruling noted that 22 states require proof of mental retardation by a preponderance of the evidence, the lowest threshold. Four states have adopted a clear and convincing evidence standard and three states have not set a burden of proof.

And:

Friday's ruling was a victory for Warren Hill, who was sentenced to death in 1991 for killing a fellow inmate in a state prison in Lee County. At trial, Hill raised mental retardation claims.

Writing jointly for the majority, judges Rosemary Barkett and Stanley Marcus said that while Georgia enacted the beyond-a-reasonable-doubt standard to decrease the risk of a defendant mistakenly being found the be mentally retarded, it actually increases the risk that a defendant will erroneously be found not to be mentally retarded. "This conception of the reasonable doubt standard, by its very terms, ensures that some, if not many, mentally retarded offenders will be executed in violation of the Eighth Amendment," the judges said.

The AP report, "Panel: Proof standard in capital cases flawed," is via the Macon Telegraph.

Georgia defense attorneys say the decision should result in new hearings for up to 10 inmates on Georgia's death row who previously raised mental retardation claims at trial. State attorneys are reviewing the ruling and could appeal.

The ruling in Warren Lee Hill, Jr. v. Derrick Schofield is in Adobe .pdf format.  Related posts are in the mental retardation index.

Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

An Update on the Troy Davis Case

Bill Rankin reports, "New Troy Davis hearing this week in cop's death," in today's Atlanta Journal-Constitution.

U.S. District Judge William T. Moore Jr., who will hear the case, is not expected to make an immediate ruling. He has instructed parties that he wants them to file legal briefs after the hearing is over. He also told the lawyers that because he has already read the trial record and the legal pleadings in the case, he expects them to come to his courtroom and "immediately" enter into the presentation of evidence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

"Court to hear innocence claim in Ga. death case," via the Macon Telegraph.  It's written by Russ Bynum and Greg Bluestein.

Death penalty appeals from condemned inmates usually hinge on technicalities, legal hiccups and procedural errors. But this week a federal judge will hear evidence from a death row inmate convicted of gunning down a Savannah police officer that will center on a more fundamental question: is he innocent?

Troy Anthony Davis' attorneys and legal experts alike say such an argument is highly unusual. And many say the hearing, scheduled Wednesday in U.S. District Court in Savannah, marks the first time the U.S. Supreme Court has ordered such a hearing in a death penalty case.

And:

Donald E. Wilkes Jr., a University of Georgia law professor and expert on death penalty appeals, said federal courts normally look only at questions of due process and violations of the accused's right to a fair trial. Claims from inmates such as Davis, seeking a fresh look at their guilt or innocence, are routinely rejected by federal judges, he said.

"It's basically a claim of newly discovered evidence. Ordinarily, that's not regarded as a claim of a violation of constitutional rights," Wilkes said. "This is that rare case where it's a death sentence and there's evidence that was not available at trial that they got the wrong guy."

Davis' lawyers say seven witnesses from his trial have either contradicted their testimony or recanted it. Several people have also signed affidavits since the trial saying they heard another man confess to pulling the trigger.

"Troy Davis heads back to Savannah," in the Savannah Morning News is written by Jan Skutch.

Troy Anthony Davis  is coming back to Savannah.

He’ll be in the Tomochichi federal courthouse on Wright Square on Wednesday as his lawyers argue, at the behest of the U.S. Supreme Court, that evidence that could have kept him from being convicted and sentenced to death in the 1989 murder of off-duty Savannah police officer Mark Allen MacPhail  was not presented at his original trial in 1991.

Throngs of Davis’ supporters and death penalty opponents are expected to descend upon Savannah to plead for what they say is justice for Troy — a new trial. Davis’ family, officials from Amnesty International USA  and the national president/CEO  of the National Association for the Advancement of Colored People  already have scheduled vigils and rallies before and during the court hearing.

MacPhail’s family and friends plan a rally of their own on the evening before the hearing.

Savannah-Chatham police are preparing for those throngs, as well as intense national media coverage and the potential disruption of downtown traffic.

The Davis hearing, which could last several days,  will be a unique experience not only for Savannah but for the criminal justice system itself.

A federal judge will waste no time getting to the facts  Wednesday when he hears attorneys for Davis try to convince him of the defendant’s  innocence.

“When the hearing begins, the court will expect the parties to enter immediately into the presentation of evidence,”  U.S. District Judge William T. Moore Jr.  ruled Monday.  “No opening argument will be required.”

“As the central purpose of this hearing is for this court to receive testimony necessary to make findings of fact, the court will first receive all of the evidence,”  Moore ruled.

Moore has been directed by the U.S. Supreme Court to “receive testimony and make findings of fact”  whether evidence that could have been obtained at the time of trial “clearly establishes (Davis’) innocence.”

Earlier coverage begins with this post.

Learning From Error

James M. Doyle's latest scholarship, "Learning from Error in American Criminal Justice," appears in the Journal of Criminal Law & Criminology, Vol. 100, No.1.  By arrangement with the author, it's available in Adobe .pdf format.

James' 2005 book True Witness is a must-have account of problems with eyewitness identification.  It's noted here.  He is the Consulting Director of the John Jay College of Criminal Justice Center for Modern Forensic Practice.

Federal Review of State Death Sentences

"Congress must rewrite the law governing lawyers for poor death-row inmates," is the title of an editorial in today's Washington Post.

THERE IS something disturbing and distasteful about allowing states to take shortcuts in their quests to put convicts to death. But that is the essence of a deal Congress struck with the states in the mid-1990s. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress blamed the courts, arguing that judges were either imposing standards that were impossible to meet or were blocking certification because they objected to shortened court deadlines. In truth, the few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. The courts, in other words, were right to reject these applications.

This did not sit well with some in Congress, which changed the law in 2006 to give the U.S. attorney general -- and not the courts -- the authority to certify the programs. The attorney general now is obligated to approve an application if the state has "established a mechanism for the appointment of counsel for indigent prisoners under sentence of death" and has set up a "mechanism for compensation" for appointed attorneys.

These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards.

Earlier coverage begins with this post; related posts are in the federal legislation index.

Commentary on the Gardner Execution

David Dow posted, "Last Night's Gruesome Execution," at Daily Beast on Friday morning, hours after the execution.

I don’t know what Ronnie Lee Gardner ordered for a final meal, or if he ate at all. I’m not interested. But I’m interested that people are interested. I think it has something to do with voyeurism. The ritual of the death penalty makes us into voyeurs. If Gardner had been sentenced to life in prison rather than death, no one outside his family and fellow inmates would know his name, or care. But if you search Gardner’s name on Google, you’ll get nearly a million hits.

And:

Gardner reached his final hours with far less alacrity than the Utah firing squad’s most famous casualty. When Gary Gilmore was dispatched on January 17, 1977, his crime was not yet six months past. (That’s a modern record.) As a result, the emotions prompted by the crime spree Gilmore committed on July 19 and 20, 1976, were still festering and raw. People still hated the guy. The death penalty is wrong, but in Gilmore’s case at least it made sense. By contrast, Gardner’s case crawled to its conclusion. When Gardner murdered Otterstrom more than a quarter century ago, Otterstrom’s son Jason was 3.

Last November, I had a client who was put to death for killing a man who left behind two sons. Twelve years after the murder, they witnessed the execution. When it was over, one of them said, “Justice was served. I feel a lot better. We can move on.”

According to the Salt Lake City Deseret News, Jason Otterstrom, now engaged to be married, is pursuing his Ph.D. News reports say he opposed a commutation of Gardner’s sentence.

I sometimes think about whether my client’s victim’s son really has moved on, or whether one can. But that’s what rituals are for, after all: to help human beings turn the page.

"Lethal injection, firing squad raise ethical questions," is the title of a column by Larry Petrash in the Wichita Falls Times Record News.  He's a member of the editorial board.

Ronnie Lee Gardner, by his choice, was executed by firing squad at 12:05 a.m. Friday in the Utah State Prison. Over the past several years, Texas has carried out more than its fair share of lethal injection executions. When each execution takes place, the question resurfaces: Why do we kill people, who kill people, to show that killing people is wrong?

I favor the death penalty for heinous, i.e., shockingly abominable, crimes. I have no problem taking detestable, worthless scum out of our society, like John Couey in Florida, who murdered 9-year-old Jessica Lunsford by burying her alive. That’s a heinous crime!

But I also have several problems with the death penalty. It violates this nation’s Christian ethic; it’s not uniformly applied across the country; it’s more likely that minorities receive it; it’s more costly than locking convicts up and throwing away the key, and there are way too many proven DNA exonerations. It’s a proven fact juries get it wrong and they put innocent people to death. That’s another heinous crime!

Gardner was convicted of two murders, one of which occurred during a courthouse escape attempt in 1985. Is this heinous enough?

Earlier coverage of the Gardner execution begins here.

Viewing an Execution

That's the title of Austin American-Statesman reporter Tony Plohetski's account of witnessing the execution of David Powell.  It's subtitled, "Psyche of veteran police reporter challenged inside death chamber."  It appeared in the Sunday Outlook section.  Here's the beginning:

Covered with a white sheet and minutes from death, David Lee Powell had already begun craning his head toward me and others as we filed into the crowded witness room.

The prison door slammed shut behind us, and Powell — his strapped-down arms stretching out and with intravenous lines in them — continued a piercing stare at the family of the Austin police officer he killed more than three decades ago.

With only a window and a few feet between them, he looked at each, appearing to almost greet them by name — if only through eye contact.

Here I was, standing in the Texas execution chamber about to watch a man die.

My stomach was in knots. I held my yellow legal pad to my chest.

For weeks leading up to Tuesday's execution, I'd contemplated whether to be in the witness room, watching and listening as Powell, who fatally shot officer Ralph Ablanedo in 1978, drew his last breath.

I knew that I valued the principle of allowing media members to witness executions — that people should know as much as possible about how capital punishment is carried out to help make informed opinions about state-sanctioned executions.

I also felt a commitment to writing the final chapter of a story that has continued for 32 years — my entire lifetime.

I've covered Austin police since 2002 — Ablanedo has remained legendary in the department — and I'd written about his death for years. I'd met his family and fellow officers many times.

Last month, I also spent an hour interviewing Powell on death row with fellow reporter Chuck Lindell. It was the first time in his three decades behind bars that Powell had granted a newspaper interview request.

Earlier coverage begins here.

News Coverage of the Keller Proceedings

"Sharon Keller Case in Hands of Judicial Conduct Commission," is the title of Mary Alice Robbins' report for Texas Lawyer.

The attorney defending Texas Court of Criminal Appeals Presiding Judge Sharon Keller against misconduct charges that could result in her removal from office on Friday accused the State Commission on Judicial Conduct of doing a poor job of investigating complaints against Keller in connection with a death-row inmate's case. "I think the commission has failed in every step of the way in this," Charles "Chip" Babcock, a partner in Jackson Walker in Dallas and Houston, said during an approximately five-hour hearing before the 13-member commission.

Babcock made his comments as the commission heard objections to the findings of a judge who served as special master in In Re: Sharon Keller. Judge David Berchelmann Jr., of San Antonio's 37th District Court, who heard testimony in the case during a four-day hearing in August 2009, recommended in findings submitted to the commission in January that Keller not be removed from the bench or reprimanded.

During Friday's hearing, Babcock urged the commission to follow Berchelmann's recommendations and dismiss the charges against Keller, whom he alleges has been the victim of a "pack of lies" that the Texas Defender Service told about what happened on Sept. 25, 2007, the day the state executed Michael Richard. But John J. "Mike" McKetta, the commission's special counsel in Keller, told commission members that Keller, as presiding judge of the state's top criminal court, is the "public face of the criminal justice system in the state of Texas."

McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody, said Keller violated the CCA's long-standing execution-day protocols when she did not refer communications about an imminent execution to CCA Judge Cheryl Johnson, who was assigned to handle that case. "She has violated a mandatory protocol, a duty of her office in one of the most time-sensitive and irreversible circumstances there can be, moments before a scheduled execution," McKetta said of Keller.

And:

During an exchange with judicial conduct commissioner Tom Cunningham, a Houston attorney, Babcock said he did not believe the commission had given Keller a fair hearing. To which Cunningham responded, "Isn't it ironic that's what Mr. Richard was asking?" After hearing the arguments, the commission retired to begin deliberations. Seana Willing, the commission's executive director and the examiner in Keller, says the commission's options are to dismiss the charges, censure Keller or recommend to the Texas Supreme Court that she be removed from office.

At the Wall Street Journal Law Blog this morning, Nathan Koppel posts, "Sharon Keller’s Judgment Day Nears."

It looks like we are close to reaching the final stage of the Sharon Keller saga.

Remember her? She’s the chief judge of Texas’s highest-ranking criminal court. For years now, she has been embroiled in a scandal, because she didn’t allow the clerk’s office of the court to stay open past 5 p.m. in 2007, to receive a last-minute appeal from capital murder defendant Michael Wayne Richard, who was executed later that day.

He planned to request a stay based on the fact that the Supreme Court, on the day Richard was executed, had agreed to hear a case questioning the constitutionality of lethal injection (the method used on Richard.)

The Texas State Commission on Judicial Conduct, a 13-member state agency that investigates allegations of judicial misconduct, met Friday to decide whether to punish Keller. It adjourned without reaching a decision.

Koppel wrote, "Texas Agency Weighs Penalty for Judge in Thwarted Appeal," for the Saturday issue of the Journal.

The Keller investigation has received attention well beyond the state and has been cited frequently by critics who claim that judges in Texas, one of the nation's busiest executioners, don't handle death-penalty cases with sufficient care.

A Republican and avowed law-and-order former prosecutor, Ms. Keller was first voted onto the Court of Criminal Appeals, the state's highest criminal court, in 1994. She became presiding judge in 2000.

Defense attorneys have filed hundreds of complaints against the judge with the judicial-conduct commission over the years, but she has defended her tenure, noting that she presided over a statewide task force on serving indigent defendants.

And:

In a report this year, the special master in the case, Texas state judge David Berchelmann, criticized Judge Keller's conduct.

Her refusal to keep the clerk's office open late was "highly questionable," he concluded, and she could have better communicated the procedure for filing late motions with an on-call judge. "There is a valid reason why many in the legal community are not proud of Judge Keller's actions," Judge Berchelmann wrote.

Still, he determined that the judge hadn't violated any procedural rules and should remain in office.

Charles Geyh, a law professor at Indiana University and an expert on judicial ethics, concurred that Judge Keller should be admonished but allowed to keep her job.

While she may have followed the "letter of the law," he said, "there is value in telling judges to go the extra step when lives are on the line." Plus, he added, "If voters are mad enough about what she did, they can yank her from office next time she runs."

The Saturday Dallas Morning News carried Christy Hoppe's report, "Texas judicial panel hears complaint against Keller."

The case of the state's top criminal court judge was handed Friday to a disciplinary commission, whose members expressed exasperation that a man could be executed in Texas because lawyers and judges "dropped the ball."

The case of Judge Sharon Keller sprang from the 2007 execution of death row inmate Michael Richard, whose last-minute appeal was fumbled by defense lawyers who asked the Court of Criminal Appeals clerk to stay late to receive their pleadings.

Keller, as the court's presiding judge, told staffers to instruct Richard's lawyers that the office would close at 5 p.m. Richard was executed at 6 p.m., without a state judge reviewing his appeal, which stood a good chance of having been granted.

Keller's attorney, Charles "Chip" Babcock, said her finances and reputation have been hurt because death penalty opponents presented a "pack of lies" to try to force her from office.

He said defense lawyers failed in their actions and now are trying to blame Keller, a Republican . It would be "enormously dangerous" if the Commission on Judicial Conduct sanctioned Keller based on distortions pushed by those with a political agenda, Babcock said.

Mike McKetta, who presented the case against Keller, said the judge's decision blocked access to the court at a time when minutes were crucial in the life of a man.

McKetta said he was particularly perturbed by Keller's earlier testimony that she would do the same thing today. "That is a serious problem that needs attention," he said.

And:

Some of the 12 commission members who heard the case clearly found it disturbing.

Chairman Jorge Rangel said the commission would deliberate but did not indicate when it might issue a decision.

Commissioner Janelle Shephard told lawyers during the hearing that she saw "shocking dysfunction in the court," with little training or accountability.

"Where does the buck stop in this whole fiasco?" she asked.

Commissioner Ann Bradford said, "This has to be a tremendous breakdown in communication."

Another, Karry Matson, blamed both sides for "dropping the ball."

And Commissioner Tom Cunningham said he found it interesting Keller would argue that the "tainted process," as Babcock called it, was denying the judge a fair hearing.

"Isn't it ironic that's what Mr. Richard was asking for?" Cunningham said.

Dave Montgomery wrote, "Saturday's Fort Worth Star-Telegram.

The state's highest criminal appeals judge was accused of "gross carelessness" Friday for denying a late-hour appeal for a Death Row inmate, but Presiding Judge Sharon Keller's attorney said she is the victim of "a pack of lies" designed to force her from the court.

The hearing before the State Commission on Judicial Conduct marked the latest phase in a protracted inquiry against Keller, 56, a former Dallas prosecutor who has served on the Texas Court of Criminal Appeals since 1995.

The judicial panel began deliberating after the half-day hearing, but it was not clear when it will announce a decision. Keller sat at the counsel table during the proceedings and left without talking to reporters.

The panel could decide to dismiss the case, issue a censure or recommend Keller's dismissal from the bench. A removal recommendation would open another phase of the inquiry, requiring the Texas Supreme Court to appoint a panel of seven appellate judges to further review the case.

Rep. Lon Burnam, D-Fort Worth, who has called for Keller's impeachment, observed the proceedings from the back of the chambers. "The woman has no business being on the bench, much less the head of the court," he said.

Prosecutors are challenging a special master's finding that Keller should not be removed or reprimanded for refusing to keep her office open on Sept. 25, 2007, to hear an after-hours appeal from condemned inmate Michael Wayne Richard, who was executed that night.

The AP coverage is, "Texas judge's career in disciplinary panel's hands," written by Paul Weber.  It's via Google News. 

The top criminal judge in Texas was left waiting Friday to find out if a disciplinary panel would recommend her removal from the state's eminent death-penalty court after charges she closed her courtroom to a death row inmate's last-minute appeal.

Judge Sharon Keller declined to comment after a five-hour hearing before the State Commission on Judicial Conduct, where state investigators argued she is "not the right person" to lead the Texas Court of Criminal Appeals if she can't admit to wrongly turning away a condemned inmate's attorneys the night of his execution.

The panel adjourned without a decision and offered no timetable for a ruling. Keller, a Republican elected to the court in 2006, faces five counts of judicial misconduct.

"She is the public face of criminal justice in the state of Texas," said Mike McKetta, the attorney leading the state's case against Keller. "She has violated a mandatory principal, a duty of her office, in one of the most time-sensitive and irreversible circumstances."

Added McKetta, "That's not the right person and attitude to be the public face."

Keller's attorney, Chip Babcock, urged the panel to dismiss all charges during a sometimes tense exchange with the 13-member commission.

Earlier coverage begins with this post. 

Key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

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

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

The Utah Execution

The New York Times reports, "Utah Executes Murderer by Firing Squad," by Kirk Johnson.

A five-member firing squad at the Utah State Prison took aim and fired .30-caliber bullets at a target pinned on the chest of Ronnie Lee Gardner, a convicted murderer, just after midnight on Friday. He was pronounced dead at 12:20 a.m. Mountain Time, after almost 25 years on death row, and several months as the center of international attention focused not so much on crime as his punishment.

It was the third firing squad execution in Utah — the only state actively practicing that form of punishment — since 1976, when the death penalty was restored by the United States Supreme Court.

The latest AP filing is, "Firing squad execution sobering, but dramatic," written by Jennifer Dobner.

The explosive reports sent a volley of .30-caliber bullets from the five marksmen into the chest of Ronnie Lee Gardner.

I was expecting to flinch but didn't as I watched his execution from the witness room.

It was so quick that for a split-second I wondered if it had actually happened.

There was no blood splattered across the white cinderblock wall at the Utah State Prison. No audible sounds from the condemned. I couldn't see his eyes. I never saw the guns and didn't hear the countdown to the trigger-pull.

A twice-convicted killer who had a troubled upbringing, the 49-year-old Gardner was executed by firing squad shortly after midnight on Friday. I was one of nine journalists selected to observe his death, which the state classifies as a homicide.

When the prison warden pulled back the beige curtain, Gardner was already strapped into a black, straight-backed metal chair. His head secured by a strap across his forehead. Harness-like straps constrained his chest. His handcuffed arms hung at his sides. A white cloth square — maybe 3 inches across — affixed to his chest over his heart bore a black target.

Seconds before the impact of the bullets, Gardner's left thumb twitched against his forefinger. When his chest was pierced, he clenched his fist. His arm pulled up slowly as if he were lifting something and then released. The motion repeated.

Although the dark blue prison jumpsuit made it difficult to see, blood seemed to be pooling around Gardner's waist.

The silence was deafening.

"With two loud bangs, a killer's life is taken," is the account by a team of  Salt Lake Tribune reporters.

The prison warden draped the black hood over Gardner's head. A small target was affixed by Velcro over his left breast.

The five executioners readied their weapons, only four of which were loaded with live ammunition.

At 12:15 a.m., the shots rang out.

"It was so sudden, so quick -- boom boom -- just like that," television news reporter Marcos Ortiz said.

Several of the witnesses described watching as Gardner's hand and arm continued to move after he was shot.

"He clenched his fist and then let go," Fabrizio said. "And then he clenched it again."

Two minutes after the shots, the medical examiner lifted Gardner's hood to reveal his ashen face, mouth agape.

The killer was dead.

The Deseret News has a number of articles at this LINK.  The primary article is, "Gardner's life ends with hardly a word.

Following a flurry of last minute appeals in a struggle to save his life, Ronnie Lee Gardner's life ended early Friday with hardly a word.

"I do not, no," Gardner said when asked if he had any final last words, while slightly shaking his head as much as his restraints would allow.

A black hood was placed over Gardner's head and less than a minute later, five guns made two booming sounds in quick secession — "ba-boom" — and Gardner became the third man in Utah, and the U.S., to be executed by firing squad since the moratorium on capital punishment in the United States was lifted in 1976.

The shots were fired at 12:15 a.m. and Gardner was pronounced dead two minutes later. From the time a curtain was opened to allow nine media members and five others to witness the execution to the time it was closed after the shooting was complete, took about four minutes.

Gardner was strapped to a chair at six different places on his body: forehead, shoulders, chest, waist, wrists and ankles. On each side of the chair were 13 sandbags, nine of them stacked on top of each other. Behind the chair was a wood panel painted black. Each panel was 2 inches wide.

As the curtain opened, Gardner was fully strapped to his chair but his eyes wandered back and forth and seemed to focus on the reflective glass separating him and the media witness room. Warden Steve Turley asked Gardner if he had any final words and told him he had two minutes to make a statement.

But before the microphone was even put in front of Gardner, he said he did not have any final comments.

Gardner wore a dark blue jumpsuit and white socks, no shoes. A small, white, square target with a dark bullseye circle and a dark circle around that, was Velcroed to his left breast. After the black hood was placed over his head, everyone else exited the room. About 30 seconds later, the fatal shots were fired, seemingly without warning.

"I think we were all struck as we were talking after how deceiving the sense of time was. Particularly the time from when the warden left and Mr. Gardner was there alone to when the shots were fired. It's hard to get a sense of that. We didn't hear a command. It just happened," said KUER/KUED witness Doug Fabrizio.

Media members said they did not hear a countdown, but Corrections director Tom Patterson said the gunmen started at 5, counted down and fired when they got to 2. Patterson did not know if Gardner was able to hear their countdown.

Earlier coverage begins here.

The Spectacle Doesn't Change the Facts

That's the title of Diann Rust-Tierney's latest commentary at Huffington Post.  LINK  Here's an extended excerpt:

Ronnie Lee Gardner's death by a Utah firing squad is an anomaly. Despite the curiosity generated by the high-profile manner of imposing the punishment, the death penalty is on the wane in America.

A new Rasmussen poll released June 8 shows that public support for the death penalty has declined. Three-quarters of Americans are concerned that some individuals are executed for crimes they did not commit, including 40% who are "very concerned."

So it is no small wonder that the death penalty is increasingly falling into disuse. Prosecutors are seeking the death penalty less often, and jurors are returning death sentences less often as well. The active use of the death penalty is confined to a handful of states. Even in Utah, despite this splashy appearance on the executing stage, executions are very rare, with less than a dozen people on death row.

And the legal foundation upon which the system of capital punishment was built is crumbling. The American Law Institute played a pivotal role in the effort to design a capital sentencing scheme that comported with constitutional norms of due process and equal protection through its Model Penal Code. Tellingly, the ALI withdrew the Model Penal Code provision for capital punishment, citing its belief that the intractable problems of arbitrariness, bias and unfairness in the system could not be fixed.

We as a society need to learn to recognize the devastation and lifelong effect of homicides on families of murder victims and our communities. We need to find a response that better serves affected communities.

For our part, we will continue to tell the truth about the way in which capital punishment undermines and degrades our system of justice.

Rust-Tierney is the Executive Director of the National Coalition to Abolish the Death Penalty. 

Sharon Keller Faces Disciplinary Panel Today

Today's Dallas Morning News reports, "Prosecutors will try today to reopen case against Judge Sharon Keller."  It's written by Christy Hoppe.

Prosecutors at a hearing this morning will attempt to revive the case against Judge Sharon Keller, accused of closing the state's top criminal court as a death-row inmate's lawyers tried to file a last-minute appeal.

The Commission on Judicial Conduct could take weeks or months to decide if Keller should be reprimanded, or even potentially removed from her seat as the presiding judge of the Texas Court of Criminal Appeals.

And:

Special Master David Berchelmann Jr. heard the case last fall and determined that Keller did not violate either rules or laws when she declined to accept the appeal after 5 p.m.

He recommended that Keller not be punished or given, "further reprimand beyond the public humiliation she has surely suffered."

He also laid part of the blame at the feet of defense attorneys for their tardiness and failure to pursue other options.

Today, prosecutors plan to argue that Berchelmann's findings were misguided and that the evidence showed Keller failed to perform her duties and cast discredit on the judiciary – both violations of the canons of judicial conduct.

Keller plans to argue that the special master's criticism of her judgment were irrelevant to whether she violated judicial ethics, which Berchelmann found she had not.

The Morning News has linked it's full coverage of Judge Keller as an online resource.

Paul Weber writes the AP report, "Embattled Texas judge faces disciplinary panel," via Google News.

A Texas judge charged with closing her court before a death row inmate could file a last-minute appeal faces possible punishment Friday by a state panel that could recommend her removal from the bench.

Judge Sharon Keller is charged with five counts of judicial misconduct, nearly three years after she famously said "We close at 5" while attorneys for a condemned man scrambled to file an appeal hours before his execution.

Keller, the presiding judge of the Texas Criminal Court of Appeals, has asked the State Commission on Judicial Conduct to side with a report last year that said she was undeserving of any sanction beyond "the public humiliation she has surely suffered."

Critics from death penalty opponents to The New York Times editorial board want Keller gone. But Keller faces no criminal charges, and the commission has recommended removing a judge not under indictment only six times since 2002.

"It has to be very serious," said former commission chairman James Hall, a San Antonio lawyer whose term ended in 2005. "They do not take that lightly."

The last time the state removed a judge who wasn't under indictment was 2005. All who have recently been removed were either municipal judges who fell behind on required casework or ill-behaving justices of the peace.

Keller is the highest-ranking criminal judge in Texas, presiding over the court of last resort for inmates on death row. That would make her ouster a virtually unprecedented decision in the recent history of the 13-member commission.

Prosecutors have not recommended a punishment for Keller, but they don't rule out the commission finding her conduct bad enough to warrant removal.

Leading the charge against Keller is Seana Willing, the commissioner's executive director, who is known as the examiner in the case.

Earlier coverage of the disciplinary proceedings begins with this post. 

Key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

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

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

Friday

I'm attending the American Constitution Society 2010 Annual Conference.  The program is packed with great speakers and panels discussions.

I'll be posting at the site, as well as tweeting and re-tweeting items.  You can follow the tweets in the new right-column Twitter box.

An Update on the Estrada Case

Today's San Antonio Express-News reports, "Death row inmate's death sentence overturned," by Craig Kapitan.

The Texas Court of Criminal Appeals ordered Bexar County to conduct a new sentencing hearing for Adrian Estrada, who stabbed and strangled Stephanie Sanchez, 17, at her West Side home Dec. 12, 2005. He'll again face two options for the capital murder conviction: life in prison without the possibility of parole or execution.

At this point, prosecutors intend to seek the death penalty again, said Cliff Herberg, the county's first assistant district attorney. But logistics, such as finding witnesses, will help ultimately determine if a new sentencing hearing is held or if Estrada is allowed to serve life in prison without parole, he said.

Estrada, 26, has been on death row since 2007, when jurors decided he would be a future risk to society, including fellow prisoners, if allowed to live.

But the jury was accidentally given misleading information from an expert witness on the danger he would pose, the district attorney's office conceded in appellate documents. The Texas Court of Criminal Appeals concurred.

“This information, now properly before this court, demonstrates there is a fair probability that appellant's death sentence was based upon (the expert's) incorrect testimony,” Judge Barbara Hervey wrote in the 66-page ruling.

“We believe that the Supreme Court would find this to be constitutionally intolerable.”

Defense lawyer Brian Stull, a North Carolina-based staff attorney for the American Civil Liberties Union's Capital Punishment Project, said he was pleased with the decision.

“We applaud the state's straight-forward approach in conceding error,” he said, declining further comment.

The mistaken testimony was made by A.P. Merillat, a well-known prison investigator who is often called by prosecutors in Texas to describe future danger issues. Merillat told jurors that after 10 years in prison, Estrada could potentially be given a lower, less restrictive inmate classification.

The Court of Criminal Appeals opinion is in Adobe .pdf format.  Earlier coverage, from yesterday, is here.

Thursday

I'll be traveling most of Thursday.  Posting will likely resume this evening.

Take this opportunity to visit sites in the left-column webroll.

A Utah Roundup

Ronnie Lee Gardner's execution is scheduled for Friday morning, shortly after midnight.

CNN has "Inmate set to die by firing squad asks high court to stay execution," by Bill Mears. 

A Utah death row inmate who would become only the third person to die by firing squad in 33 years appealed to the Supreme Court Wednesday, seeking a last-minute stay of execution.

Ronnie Lee Gardner's lawyers filed the first of what are expected to be several appeals to the justices. He is scheduled to be put to death early Friday for the shooting death of attorney Michael Burdell during a botched escape attempt from custody in 1985 at a Salt Lake City, Utah, courthouse.

Among the claims the 49-year-old prisoner raises in his appeals is that he has been a capital inmate too long.

"He asserts that executing him now, after nearly 25 years on death row in Utah, so lacks retributive or deterrent value that it violates the Eighth Amendment," Andrew Parnes, Gardner's lawyer, told the high court. He did not return phone calls from CNN seeking comment.

Gardner's lawyers have launched an aggressive scramble in state and federal courts, as well as the Utah Board of Pardons and Parole, to at least postpone the execution.

A federal judge late Tuesday refused to block it, after Gardner claimed the procedures related to a two-day commutation hearing held by the board last week violated his civil rights. Parnes had argued the clemency hearing was not fair and impartial because representatives from the Utah attorney general's office were both presenting the state's case at the hearing and advising the board. Attorneys representing the state agency said safeguards were in place to prevent a conflict of interest.

The parole board refused to commute Gardner's sentence to life in prison Monday, and the Utah Supreme Court Tuesday also denied his request for a stay. He claims he is a changed man, and should not be executed for his crimes.

The Salt Lake Tribune, "Gardner asks U.S. Supreme Court for stay of execution," by Pamela Manson.

"Emotions running deep this week at prison," by Sheena McFarland in the Salt Lake Tribune.

"Utah inmate faces death by firing squad," by AFP.

"Ronnie Lee Gardner identifies 2nd accomplice in courthouse escape attempt," by Aaron Falk in the Deseret News.

"Capital punishment critics point to Utah cases as examples of unfairness," by Dennis Romboy also in the Deseret News.

Columnist Lee Benson writes, "Dealing death from the 'Dove'," also for the News.

Earlier coverage begins with this post.

Shoot Me Now

That's the title of a news article posted at Slate by Margot Sanger-Katz.  It's subtitled, "Are firing squads a better means of execution than lethal injection?"  Here's an extended excerpt:

According to the Utah Department of Corrections, Gardner will be strapped to a chair for his execution wearing a jumpsuit with a target pinned to his heart. After offering last words, his face will be hooded, and five pre-selected law enforcement officers will aim for that target with .30-caliber rifles from less than 25 feet away. As in traditional military firing squads, one of those shooters' guns will be loaded with blanks, to keep each one uncertain about whether he fired a fatal shot. In 1996, the last time Utah carried out a firing squad execution, prison officials used a chair with a mesh seat and placed a pan beneath the chair to capture the inmate's blood. (To honor the participating corrections officers, this time the department will issue commemorative coins to everyone involved.)

This may sound gory, but the limited body of research on death penalty methods suggests that the firing squad is actually a pretty good way to go. A Utah inmate who in 1938 agreed to be gunned to death while hooked up to an electrocardiogram showed complete heart death within one minute of the firing squad's shots. By contrast, a typical, complication-free lethal injection takes about nine minutes to kill an inmate.

And a raft of recent cases suggests that lethal injections don't always go as planned. Ohio has opted to change its execution protocol this year after several botched executions, including one last year in which corrections officials attempted to place an IV line for two hours before finally giving up. Death penalty lawyers and human rights groups argued that mix-ups in the drug cocktail administered in most states could result in a long, painful death, tantamount to torture. The Supreme Court rejected that argument. But corrections officials who insert needles and administer the lethal injection drugs have no medical training, since the professional associations of both doctors and nurses have barred their members from participating in executions. The Oklahoma medical examiner who first designed the most common lethal injection protocol critiqued his own method in 2007, after learning about problems with its administration. Nationwide, the federal government and every state with capital punishment use lethal injection as their primary execution method, though several states have backup methods­—including hanging, electrocution, and lethal gas—should lethal injection prove problematic.

By contrast, shooting is simple and deadly. It's easy to find psychologically stable, trained professionals with experience shooting to kill. Assuming that the executioners aim with that purpose, the four-bullet protocol provides a measure of certainty that one bullet will strike the heart, leading to a near instantaneous death.

There is also some evidence that fatal gunshot wounds of the kind sought by executioners are not only relatively swift, but also not terribly painful.

The next post will have a roundup of Utah items as the execution nears.

News Coverage of David Powell Execution

"Powell executed for 1978 slaying of police officer," is the Austin American-Statesman article written by Tony Plohetski and Chuck Lindell.

Declining to make a final statement, David Lee Powell was executed Tuesday for killing an Austin police officer 32 years ago as seven members of his victim's family watched silently from a nearby window.

Strapped to the execution gurney with intravenous lines already inserted, Powell kept his eyes locked on members of officer Ralph Ablanedo's family but did not acknowledge Warden Charles O'Reilly's invitation to speak.

His head still turned toward the window, Powell half closed his eyes as the lethal combination of drugs began flowing at 6:10 p.m.

"Texas inmate executed 32 years after killing," is the AP report by Michael Graczyk, via the Fort Worth Star-Telegram.

AFP reports, "Texas executes convicted cop killer 32 years on death row."

The Huntsville Item carries, "Drug dealer killed for 1978 slaying of Austin cop."

Earlier coverage begins here.

New Punishment Phase for Adrian Estrada

"New penalty phase for ex-San Antonio youth pastor," is the title of Michael Graczyk's report posted at the Houston Chronicle.

The Texas Court of Criminal Appeals has thrown out the death sentence of a San Antonio man condemned for murdering his 17-year-old girlfriend and their unborn child in 2005.

The state's highest criminal court Wednesday upheld the conviction of former youth minister Adrian Estrada. His case now returns to court in Bexar (bayr) County for a new punishment trial.

The appeals court said jurors who decided that Estrada should die for killing Stephanie Sanchez and her unborn child had incorrect information from a prosecution witness regarding prison restrictions on capital murder convicts who get life without parole, rather than a death sentence.

The ruling in Adrian Estrada v. The State of Texas is available in Adobe .pdf format.  The ruling comes in the direct appeal of Estrada's 2007 trial.

Additional News Coverage of Claude Jones Case

"Judge orders DNA testing for man executed in 2000," is the title of Cindy Horswell's report in today's Houston Chronicle.

Claude “Butch” Jones’ last request before his execution just before Christmas 10 years ago was an emotional telephone call to his son in Houston who had never known his father until they were reunited on death row.

The son, Duane Jones, now 49, remembers pointedly asking his father whether he had robbed and murdered the liquor store owner in San Jacinto County.

“I told him he had nothing to lose by telling the truth now,” Duane Jones said. “But my father continued to remain adamant that he didn’t do it.”

While the younger Jones, an associate engineer, thought his father was being truthful, he could never be certain — but now that may change.

Visiting Judge Paul C. Murphy this week ordered testing of a strand of hair from Claude Jones’ case that death penalty opponents believe might provide the first DNA proof that an innocent man was executed.

Murphy issued a summary judgment in favor of the New York-based Innocence Project and The Texas Observer, an Austin newsmagazine, which three years ago petitioned to do mitochondrial DNA testing on a hair fragment recovered from the counter of Zell’s liquor store in Point Blank, about 65 miles north of Houston.

San Jacinto District Attorney Bill Burnett, who had assisted in the prosecution and died this month from pancreatic cancer, blocked the hair’s release. He argued state law provided no legal avenue for him to relinquish the 1-inch strand after Claude Jones’ death.

Neither Burnett’s attorney, David Walker, nor the first assistant, Jonathan Petix, who has temporarily replaced Burnett, could be reached for comment on whether they will appeal.

Meanwhile, the younger Jones remains guardedly optimistic.

“It would mean a lot to me to know the truth, but it is really more important or paramount that the justice system know the truth,” he said. “If our state is going to be the execution capital of the free world, then it needs to be above reproach.”

In 2000, Claude Jones was the 40th and last person executed in Texas that year, which set a national record.

Duane Jones’ does not see himself as a so-called bleeding-heart liberal opposed to the death penalty, as his own family knows what it’s like to be a crime victim. He survived a bullet to the back of his head during a robbery in 1986, and his wife was the target of a home invasion just two months ago.

The latest AP filing is "Texas judge orders DNA test decade after execution," written by Jeff Carlton.

For the second time in a year, the guilt of an inmate executed in Texas is in doubt after a judge ordered DNA testing on a strand of hair that was the only physical evidence linking a man to the murder for which he was killed 10 years ago.

Judge Paul C. Murphy ordered testing done on a 1-inch-long strand that helped prosecutors convict Claude Jones of capital murder in the 1989 shooting death of liquor store owner Allen Hilzendager near Point Blank, about 75 miles north of Houston.

"This is a DNA test that could prove someone was wrongly executed," said Barry Scheck, the co-director of the Innocence Project, a New York-based legal center that helped ensure the preservation of the strand of hair.

Jones, a career criminal and paroled murderer, always insisted he was innocent. He died in 2000, the last of 40 inmates executed in Texas that year and the last of 152 inmates put to death during former President George W. Bush's time as governor.

Murphy, a retired appellate judge assigned to the case, ordered the test Friday. In April in a separate case, a state forensics panel renewed its review of a questionable arson finding that led to the 2004 execution of Cameron Todd Willingham, who was convicted of setting the fire that killed his three children.

According to the Innocence Project, Texas leads the nation with 40 DNA exonerations. Gov. Rick Perry issued the state's first posthumous pardon of a DNA exoneree in March. Tim Cole, wrongly convicted of a 1985 rape, died in prison of complications from asthma in 1999.

In Jones' case, a hair analysis expert linked the strand to Jones at his trial. The other primary evidence was testimony from an accomplice, who later acknowledged in an affidavit that he had no firsthand knowledge of the killing and said he testified against Jones to get himself a lighter sentence.

The single strand of hair allegedly belonging to Jones inexplicably survived, although it was supposed to have been destroyed years ago after the case was resolved. In 2007, a state district judge ordered it preserved to leave open the possibility of DNA testing after the Innocence Project, other innocence groups and The Texas Observer, a biweekly magazine, sought a temporary restraining order preventing its destruction.

And:

The hair must be transferred to a laboratory within 60 days, according to the order. The tests could link the hair to Jones, one of his alleged accomplices or the victim. It also could be a stray hair.

Scheck said if the test proves the hair did not come from Jones, it will show the state had no grounds on which to convict. In Texas, a defendant cannot be convicted on the testimony of an accomplice unless there is corroborating evidence, he said.

The Dallas Morning News runs the AP item, "Update: Executed man's case reviewed."

Earlier coverage of the case begins with this post.

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

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

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

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