The StandDown Texas Project

Friday

I'll be traveling Friday.  Please take the opportunity to visit sites in the left=column webroll.

Dahlia Lithwick on Foreign Lethal Injection Drug

"Lethal Deflection," is her latest post at Slate.

But in an opinion Tuesday signed by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, the court allowed the execution to go forward, finding “[t]here is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. … But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering.' ” Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented without a published opinion. Arizona officials finally explained that the sodium thiopental they were using had come from Britain.

In 2003, Justice Anthony Kennedy, in an opinion striking down Texas’ gay-sodomy laws, cited a committee advising the British Parliament, the European Court of Human Rights, and the European Convention on Human Rights. In 2005, Kennedy, writing the majority opinion in a case striking down capital punishment for juvenile offenders, cited the U.N. Convention on the Rights of the Child. Acknowledging how few countries still permit the death penalty for juveniles, Kennedy also noted that “[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.” Some of his conservative critics immediately called for his impeachment.

Just to be clear, then, U.S. Supreme court justices may not properly cite to foreign law in death penalty cases but have no problem at all with the use of foreign lethal injection drugs for executions.

Earlier coverage begins here.

Cruel and Usual?

That's the Scientific American's latest Ask the Expert topic. Larry Greenemeier's column is subtitled, "Is Capital Punishment by Lethal Injection Quick and Painless?"

Lethal injection is used for capital punishment by the federal government and 36 States, at least 30 of which use the same combination of three drugs: sodium thiopental (a barbiturate to induce anesthesia), pancuronium bromide (a muscle relaxant that paralyzes all the muscles of the body) and potassium chloride (a salt that speeds the heart until it stops). This protocol was developed in 1977 for the state of Oklahoma by then–Chief Medical Examiner Jay Chapman, but it has never been codified or sanctioned by the U.S. Food and Drug Administration (FDA).

And:

Regardless of whether Landrigan's legal team was simply using the drug shortage as stalling tactic, their legal maneuvering brings to the fore a contentious dispute over the science (or some would say lack thereof) behind lethal injection executions in the U.S. For more than two decades, it has been argued that the FDA should be required to certify the safety and effectiveness of drugs used to carry out executions (as it does for drugs used to euthanize animals). The FDA, wanting to stay out of the capital punishment debate, disagrees.

In 2008 the U.S. Supreme Court (pdf) upheld a lower court ruling that the state of Kentucky's three-drug method of lethal injection did not constitute "cruel and unusual punishment," as defined by the Eighth Amendment. Some scientists disagree. Scientific American spoke with University of Miami Miller School of Medicine molecular biologist Teresa Zimmers about this controversial topic.

You and a group of colleagues in 2007 published a report in PLoS Medicine that examined public records of executions. What was the purpose, and what sort of reaction did you receive?
We were actually trying to look at whether there was any evidence that the three-drug protocol—sodium thiopental, pancuronium bromide and potassium chloride—acted in the way it was supposed to act. We analyzed the time to death or the time to different events, such as cardiac arrest, in order to understand what might be the mechanism of death. We found no evidence to support the use of this protocol, the dosage of the drugs or the order in which the drugs were administered in executions.

A lot of responses to the study were negative—people assumed that we had a specific political agenda. This began to change as people looked at our data more closely.

Also:

Why is sodium thiopental used as part of a lethal injection execution?
Sodium thiopental was chosen to render the person deeply unconscious and unable to feel the paralysis brought on by the pancuronium bromide, which causes the person to lose the ability to breathe. And the potassium chloride is extremely painful. Some people have said that three to five grams of sodium thiopental alone should be enough to induce death. [In December 2009 Ohio became the first state to use a single dose of sodium thiopental to execute death-row inmates.] We looked at whether inmates died reliably after the sodium thiopental, and it's not clear this is the case. We also determined that the doses of sodium thiopental used are not always as "massive" as claimed. It's not even clear how much a massive dose is in this context. We found that, at most, the highest doses were two times the lethal dose for animals, regardless of the inmate's weight.

It has been reported that in addition to a shortage of sodium thiopental, the doses that some states stockpile are set to expire before scheduled executions can be carried out. What sort of shelf life does sodium thiopental have?
Sodium thiopental has quite a long shelf life—up to 48 months in its unconstituted form. Once you add liquid, it's been reported to be stable for 24 hours or, if it's kept cold, it can last for seven days. They typically prepare it on the day of execution. Shelf life may be a problem because states perform executions infrequently and now don't have a supply of new doses.

More on the 2007 Florida study at:

• New Questions About Lethal Injection
• Additional News Coverage of LI Study

Some posts examining the origins of lethal injection execution protocol:

• Bill Wiseman Dies in Plane Crash
• Additional Information on Bill Wiseman
• Physicians and Execution

Related posts are in the lethal injection index.

Arizona's Lethal Injection - Supplier Identified?

There is extensive coverage of the legal scrum leading up to Arizona's Tuesday night execution, as well as British press coverage of the possible source of sodium thiopental.

"High Court Split Paves Way for Arizona Execution," is the title of Tony Mauro's post today at National Law Journal.

The eleventh-hour court dispute stemmed in part from the shortage of sodium thiopental, an ingredient in the "cocktail" of drugs typically used in lethal injections in the United States. The sole U.S. manufacturer has stopped production, but Arizona obtained the drug from a foreign source. The state resisted requests for details about the sourcing by attorneys for Landrigan, citing a state law that protects the privacy of individuals and entities involved in executions.

Without that information, Landrigan asserted that the use of a drug from a source not approved by the Food and Drug Administration created the risk of serious pain during the execution, in violation of the Eighth Amendment. Judge Roslyn Silver of the U.S. District Court in Phoenix agreed and stayed the execution, stating that without the information she was "left to speculate" whether the foreign drug would cause pain and suffering. The state appealed, and a panel of the 9th U.S. Circuit Court of Appeals upheld the stay.

In its opinion (pdf) the 9th Circuit said that because of uncertainty about the information about the drug that the district judge had before granting the stay, "we cannot say the district court abused its discretion." The ruling also implied that the state's reticence left defendant Landrigan unable to meet his burden under the Supreme Court's 2008 decision in Baze v. Rees to establish that a "substantial risk of serious harm" might stem from using the drug.

But the high court, in its order late Tuesday night (pdf) vacating the stay, turned that uncertainty to the state's advantage. The unsigned order, quoting from the Baze precedent, said "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness or needless suffering.' ... There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."

"Supreme Court OKs Foreign Lethal Injection Drug," by Nina Totenberg for NPR.

Tuesday's execution, the state's first since 2007, puts an end to a case that is remarkable in many respects. The Supreme Court ruled three years ago that Landrigan was not entitled to any further hearings on his case because, as Justice Clarence Thomas put it for a 5-to-4 majority, there was "no evidence that would change the result" in his case.

Since then, however, DNA evidence not tested at the time of trial seems to exclude Landrigan from the bloody fight that ended in the victim's death, though Landrigan does not dispute that he was there. The judge who sentenced Landrigan to death has testified she would not have imposed the death penalty had Landrigan's lawyer presented doctors' reports and evaluations that showed, at the time of trial in 1990, that Landrigan suffered from fetal alcohol syndrome and brain injuries.

Also this week, an Arizona Clemency Board considered the Landrigan case. Board Chairman Duane Belcher, an 18-year veteran, said Landrigan's case was not among the worst of the worst, and that the board indeed had considered parole for some prisoners whose crimes were worse.

"I don't, at this point, see this as a death penalty case," Belcher said at the hearing.

The board, however, deadlocked 2-to-2 on clemency for Landrigan, and a tie meant the execution went forward.

"Justices not convinced by arguments to delay execution," by Joan Biskupic and Kevin Johnson for USA Today.

Other lawyers who follow capital punishment said it appeared to be the first time any state relied on an overseas drug maker.

"This is the first time that we've been aware of that this drug has been imported," said Fordham University law professor Deborah Denno, an expert on capital punishment law.

A nationwide shortage of sodium thiopental, the so-called knock-out drug that is one of the three parts of the common lethal injection mix, has threatened to block executions in Oklahoma and Kentucky. New supplies are not likely to be available until 2011.

In Texas, which operates the nation's busiest death chamber, Department of Criminal Justice spokesman Jason Clark says the state has an adequate supply of the drug to carry out its one remaining execution this year Dec. 1 and its next one Jan. 11, 2011.

KALW-FM's Informant column has, "What the Arizona execution means for the death penalty nationwide."  It's by Rina Palta.

Elisabeth Semel, Director of UC-Berkeley’s Death Penalty Clinic, says that the issue of where these drugs are coming from is not going away, so long as the domestic supply of FDA-certified sodium thiopental remains scarce. However, raising the question in court will not be easy. And executions that have already been scheduled are not likely to be delayed on this issue.

What previous cases have made clear, and yesterday’s order made clearer, Semel says, is that the majority of this Supreme Court believes that the standard for stopping an execution, even temporarily, is very, very high. Specifically, for a challenge that brings up 8th Amendment issues–which means the idea of cruel and unusual punishment–a federal court can’t stay an execution unless an execution is sure or very likely to cause serious illness and needless suffering. (Media accounts indicate that Landrigan appeared to be unconscious during his execution.)

That doesn’t mean this legal standard applies outside of the context of a stay of execution–in general, someone could still challenge the use of non-FDA-approved drugs in an execution. They just better do it before a death warrant has been issued or their execution is scheduled.

Semel says, that’s the challenge with cases like these–questions like these don’t generally come up until an execution is imminent and then any questions raised during the run-up to an execution evaporate from the legal system once that person’s been executed. So now, to re-ignite the debate in the court system, an inmate on death row in a state like California or Arizona, where the origin of sodium thiopental is unknown, would have to sue and say that their constitutional rights are potentially violated if the drug is used.

But any lawsuit would have to fit into an odd window: it’d have to be before an execution date was set for the inmate, but the inmate would also have to convince the judge that his or her execution would likely involve the drugs in question. Because it’s unclear how long the shortage of sodium thiopental will last, or whether states will continue to seek supplies from abroad once the domestic supply is replenished. And the judge would have to be convinced that the individual bringing the lawsuit would or could be personally affected by the issue at hand. “It’s a double bind,” Semel says.

The Guardian reports, "British firm denies exporting drug for Arizona execution," by Owen Bowcott and Chris McGreal.

The British manufacturer of a drug used in the execution of an Arizonian man this week has said it had no control over how its anaesthetic was used once it was sold to medical suppliers, amid calls for tighter regulation of the export of drugs used to carry out the death penalty.

Archimedes Pharma UK, based in Reading, the only British firm to make the drug, denied knowingly providing it for use prior to the lethal injection of a convicted murderer on Tuesday.

Richard Dieter of the Death Penalty Information Centre in Washington said that the British government should act to prevent the "outsourcing" of the death penalty after Arizona's attorney general said his state obtained the batch of sodium thiopental from a British manufacturer because of a shortage in the US.

The anaesthetic was used to knock out the condemned man, Jeffrey Landrigan, before two other drugs that killed him were administered.

California is also planning to use a batch of sodium thiopental apparently imported from the UK in an execution that was put on hold last month, it has emerged.

Archimedes Pharma, a specialist in supplying pain relief, is the only licensed manufacturer of sodium thiopental in Britain, according to the Medicines and Healthcare Products Regulatory Agency (MHRA). The company denied it had exported the drug itself.

"The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies," it said.

Archimedes said that once the drug entered the complex chain of medical supplies it would not have known where it was eventually sold. "Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product," it said.

"British company link to drug used in execution," is by Robert Verkaik in the Independent.

The suspected source of the drug used in the execution of death-row prisoners in the US has been identified as a British company in Berkshire.

Archimedes Pharma – which is based in Reading and describes itself as a "fast-growing specialty pharmaceutical business marketing a portfolio of products to specialist prescribers" – confirmed last night that it did produce the drug sodium thiopental. But it denied it was involved in the export of the drug to the United States.

The company's directors are now under pressure to disclose the identity of all third parties that may have supplied the state of Arizona, which yesterday used a lethal injection to put to death the convicted murderer Jeffrey Landrigan.

And:

In a statement issued last night, the British company said: "Archimedes Pharma holds a marketing authorisation for sodium thiopental, an anaesthetic licensed in the UK for general anaesthia and other indications. The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies.

"Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product."

However, a company source said its directors could not say for certain where the drug had been exported to through the supply chain.

"British company denies exporting drug used in US execution after Arizona's supplies run dry," by Michael Seamark for the Daily Mail.

Earlier coverage begins with this post; more on the Supreme Court's 2008 ruling in Baze v. Rees, via Oyez.  Earlier cover of the 2007 Supreme Court ruling in Schriro v. Landrigan is here.

Anthony Graves Exoneration - Additional Coverage

This morning's Houston Chronicle has expanded coverage in, "Prisoner ordered free from Texas' death row," by Brian Rogers.

After 18 years of incarceration and countless protestations of innocence, Anthony Graves finally got a nod of approval from the one person who mattered Wednesday and at last returned home — free from charges that he participated in the butchery of a family in Somerville he did not know and free of the possibility that he would have to answer for them with his life.

The district attorney for Washington and Burleson counties, Bill Parham, gave Graves his release. The prosecutor filed a motion to dismiss charges that had sent Graves to Texas' death row for most of his adult life. Graves returned to his mother's home in Brenham no longer the "cold-blooded killer," so characterized by the prosecutor who first tried him, but as another exonerated inmate who even in the joy of redemption will face the daunting prospect of reassembling the pieces of a shattered life.

"He's an innocent man," Parham said, noting that his office investigated the case for five months. "There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do."

An attorney for Graves, Jimmy Phillips Jr., said his client was released from Burleson County Jail, where he had been awaiting a retrial, at about 5:30 p.m.

Graves immediately went to see his mother in Brenham and reportedly spent the night near Austin. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man, and he's home."

Graves called his mother to tell her he was coming home. Doris Curry left the house to pick up her youngest son, and by the time she returned home, Graves was already there, surrounded by family and friends.

"I hugged him and I hugged him and I cried and we both cried and we hugged and we cried," Curry said. "He said: 'Mama, it's over. Mama, 18 years we've fought this fight a long time. It's over. Justice has been done for me.' "

And:

Graves' appellate attorneys, Jay Burnett and Roy Greenwood, knew it was far less. They soon were convinced their client had no knowledge of or participation in the crime, just as he had claimed since the moment of his arrest.

Over the years, there was increasing evidence raised to doubt the validity of the conviction. Students in a University of St. Thomas journalism class worked with The Innocence Project at the University of Houston to review the Graves case in detail.

Nicole Casarez, the journalism professor who taught the class, and one of her students interviewed Carter's brother, whose affidavit along with other evidence they gathered helped persuade the 5th Circuit Court of Appeals to order a hearing, which eventually led to the new trial.

"I think the dismissal motion filed this morning says it best: There is no credible evidence to inculpate this defendant," Casarez said Wednesday night. "I’m just thrilled that it has finally come to this. I think it was a lot of people working very hard, perhaps even divine intervention, so that it all worked out today."

The 5th U.S. Circuit Court of Appeals overturned Graves’ conviction in 2006. A three-judge panel said he deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves eventually was returned to county jail with a bond set at $1 million, and Parham began to reassemble the case and review the evidence. He hired former Harris County assistant district attorney Kelly Siegler as a special prosecutor. Siegler soon saw that making a case against Graves was all but impossible.

Jordan Smith posts, "Anthony Graves Freed," at the Austin Chronicle.

And finally, on Wednesday, after nearly two decades behind bars, Graves was released from jail and all charges against him in connection with the Somerville murders were dropped. Importantly, prosecutors declared Graves actually innocent of the crime – a declaration that should help him collect some compensation for all the years of wrongful incarceration.

Finally.

The state's case against Anthony Graves was tenuous at best. For starters, there was no evidence to suggest he had anything to do with the crime – and there was ample evidence that he wasn't anywhere near the Somerville home the night the family was murdered. But the state ignored every single sign that their case was crap – even after the Fifth Circuit told them it was. Instead, prosecutors decided to retry Graves – intimating at one point that they were willing to use now discredited junk science in order to railroad the man.

Interestingly, although the case was fraught with problems, it never received the kind of media attention it deserved. We've written about it a number of times in the Chronicle, but it wasn't until last month, when Texas Monthly writer Pamela Colloff's story on the case was published that the entire tale was laid out in one place.

It's hard to imagine that the Colloff story didn't have some impact on the decision to finally free Graves. Regardless of the reasons behind the release, it was a move that was long, long overdue.

The list of stories on the case from our archives is here.

Earlier coverage begins with the preceding post from last night.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."

Anthony Graves Exonerated, Free

"Prisoner ordered free from Texas' death row," is the title of Brian Rogers' post at the Houston Chronicle.  Here's an extended excerpt:

A Texas inmate sentenced to die in 1994 has been released after prosecutors said today the man is innocent.

Anthony Graves was convicted of assisting Robert Earl Carter in the slaying of a grandmother, her daughter and four grandchildren in the Burleson County city of Somerville.

The dismissal comes 10 years after Carter, whose testimony convicted Graves, said in the moments before he was executed: "Anthony Graves had nothing to do with it. ... I lied on him in court."

Washington-Burleson County District Attorney Bill Parham dismissed the case after he and his team investigated the case for five months.

"He’s an innocent man," Parham said today. "There is nothing that connects Anthony Graves to this crime."

He said the dismissal was just.

"I did what I did because that’s the right thing to do, and I’m fine with it," he said.

An attorney for Graves, Jimmy Phillips, Jr. said his client was released about 5:30 p.m.

"The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man and he’s home."

Kelly Siegler, a prosecutor hired to re-try Graves, agreed with Parham.

"After months of investigation and talking to every witness who’s ever been involved in this case and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder," Siegler said.

"This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man."

In 2006, a three-judge panel from the 5th U.S. Circuit Court of Appeals decided Graves deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

The AP report is, "Charges dropped against Texas death row inmate," via the Fort Worth Star-Telegram.

A man sent to Texas death row for the 1992 slaughter of a central Texas family became a free man Wednesday after prosecutors dropped the capital murder charges against him.

Anthony Graves walked out of the Burleson County Jail in Caldwell on Wednesday afternoon after 16 years behind bars.

He had been convicted of helping Robert Earl Carter kill Bobbie Joyce Davis; her 16-year-old daughter, Nicole; and four grandchildren between the ages of 4 and 9 in the family's Somerville home. The family was stabbed, shot and bludgeoned with a hammer and their house doused with gasoline and set ablaze.

The only evidence tying Graves to the killings was Carter's testimony, and Carter recanted just before his 1998 execution. The 5th U.S. Circuit Court of Appeals in New Orleans overturned Graves' conviction in 2006, ruling that prosecutors withheld evidence and elicited false testimony. Authorities decided to retry Graves, and he had been in the county jail since then.

Earlier coverage begins with this post.  The October 2010 Texas Monthly profile is titled "Innocence Lost."

Arbitrary as Ever (II)

That's the title of Rob Smith's new post at Second Class Justice, and it includes new mapping of death sentences imposed since 1976.

The chief complaint in Furman centered on the inability to distinguish between those who received a death sentence and those who were eligible but did not. The distribution of executions since the death penalty resumed in the 1976 speaks loudly to the continuing lack of any rational connection between those who commit murder who are  then sentenced to death and executed from those who commit murder but are never executed.

A database of every execution since 1976 (paper here), compiled by Frank Baumgartner, a political science professor at the University of North Carolina-Chapel Hill, demonstrates that even among the handful of counties in the United States with active death penalties, few counties have sentenced anyone to death who has been executed.  85%  of the counties in the United States have not executed anyone since 1976.  Only 454 counties (14 percent) have ever carried out an execution since 1976.  Indeed, only 50 counties (1.6 percent of the total) have executed more than 5 individuals in the entire modern period of capital punishment, a rate that works out to just one per seven years. Five counties are responsible for a disproportionate majority of executions.  Four of these five counties are in Texas.

The earlier maps were noted in the post, "Where the Death Penalty Is Imposed - A Remarkable Graphic.

Arizona's Lethal Injection Drug - Additional Coverage

Legal analyst Andrew Cohen has posted, "Supreme Court Sides With Arizona in Lethal Injection Drug Dispute," at Politics Daily.

The legal question in the case was simple and unusual and sparked a great deal of debate among death penalty specialists: Does a condemned prisoner have a right to know where the drugs that will kill him came from and are made of? The Supreme Court's conservative majority answered that question no, at least in the circumstances of this case. In its unsigned order, issued late Tuesday night, the court dissolved the stay of execution as too speculative. "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said. "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."

State lawyers had argued that providing information about the origins or ingredients of the drug might improperly lead to the identification of the executioners themselves. More credibly, Arizona also claimed that it didn't matter what kind of thiopental it intended to use in executing Landrigan, or where it came from, because the state's injection protocol has enough protections in it to ensure the first drug is properly injected into the inmate before the second and third drugs, the lethal ones, are administered to the inmate. The Supreme Court cited its own precedent in Baze v. Rees, a lethal injection case out of Kentucky, in endorsing Arizona's view.

And:

When U.S. District Judge Roslyn O. Silver blocked the Landrigan execution Monday, she rooted her decision in the language of the Eighth Amendment's "cruel and unusual punishment" clause. She ruled that a nationwide shortage of thiopental raised legitimate questions about whether foreign, non-FDA-approved thiopental would be inserted in Landrigan's veins. And that, in turn, raised legitimate questions about whether those drugs would have side effects or contaminants or deficiencies that would cause Landrigan undue (unconstitutional) pain during his execution.

Because of Arizona's refusal to share relevant information about how it got its thiopental, Judge Silver wrote, the court "is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug's manufacture or that has no history of contamination in manufacturing the product. Absent such evidence, the Court must accept Plaintiff's factual showing that such drugs are more likely to contain harmful contaminants." This speculation, the Supreme Court subsequently ruled, was not enough to warrant additional delays in Landrigan's execution.

Silver also addressed Arizona's surly view of the role of the FDA in lethal injection law. "FDA-approval is relevant in that drugs manufactured under FDA guidelines are likely to perform as expected; drugs manufactured by non-FDA approved sources might not benefit from such a presumption. Without the assurance of FDA approval, the Court is left to speculate whether the non-FDA approved drug will perform in the exact same manner as an FDA-approved drug and whether the non-FDA approved drug will cause pain and suffering." The Supreme Court did not address this issue in its one-page order Tuesday night.

The final New York Times report is, "Arizona Executes Inmate After Supreme Court Clears Way," by John Schwartz.

Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was “crime pays.”

He explained: “The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.”

And:

Ty Alper, the associate director of the death penalty clinic at the University of California, Berkeley, said that the Supreme Court’s decision did not end the story, arguing that “it explicitly leaves the door open for a challenge in a case where petitioners can show that the drug was unlawfully obtained.”

The fact that the F.D.A. has not approved foreign sources of sodium thiopental, he said, suggested that “it’s very likely that a petitioner will be able to make this showing in a case where there is more time to litigate the issue than there was in the Arizona case.”

"Justice Elena Kagan's first vote is against an execution," is David Savage's Los Angeles Times report.

"There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said, and "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering'."

The high court used those words two years ago in a decision that upheld the use of lethal injections.

Tuesday's night's one-paragraph order was unsigned, but it spoke for Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Four others said they disagreed and said would have preserved the stay. They were Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Kagan.

From the U.K., the Telegraph posts, "Arizona execute man with drug supplied by British company," by Victoria Ward.

The British manufacturer will not necessarily know that the drug was used for an execution as it may have been exported through a wholesaler. The drug is also licensed for use as an anaesthetic.

But Clive Stafford Smith, director of legal charity Reprieve, said: "When the veil of secrecy is inevitably sundered, this British corporation should be reminded that the medical profession boasts of a Hippocratic oath, not a hypocritical one."

One British company, Archimedes Pharma, who holds a marketing authorisation for sodium thiopental, said it "neither exports to the US for any purpose nor is it aware of any exports of the product."

The Guardian posts, "Arizona execution goes ahead after stay lifted," by Chris McGreal.

The state's attorney general, Terry Goddard, used a little known law preventing the identification of executioners – and others with "ancillary" functions – to defy a court order requiring the state to reveal the exact source of an anaesthetic, sodium thiopental, used in the execution.

Yesterday, Goddard's office confirmed to the Guardian that the drug was obtained from a manufacturer in Britain because of a shortage in the US but declined to name the company concerned. Sodium thiopental is used to render prisoners unconscious before they are killed with other drugs. It has been in short supply in the US for months, forcing at least two states to look for alternative sources of supply.

Kent Cattani, Arizona's assistant attorney general, acknowledged at a court hearing last week that the state had not got the drug from the only approved US supplier, Illinois-based Hospira.

It is possible that the UK supplier was unaware that the drug was intended for use in executions as several US states have sourced it from abroad for use in hospitals.

Hospira has said that it does not approve of the use of the anaesthetic in executions. "[The drug] isn't indicated for capital punishment, and Hospira does not support its use in this procedure," it said. "Hospira has communicated with departments of corrections in the United States to advise them of this position."

Earlier coverage begins with this post.

Elie Wiesel: The Death Penalty and Human Dignity

That was the title of the Nobel Laureate's speech at Wesleyan University in Connecticut, last night.

The Day reports, "For Elie Wiesel, death penalty is not the answer." It's written by Karen Florin.

Dr. William Petit did not attend Elie Wiesel's lecture on capital punishment at Wesleyan University Tuesday, but for a few minutes the Nazi death camp survivor spoke as if the man who lost his wife and daughters in the Cheshire home invasion was his only audience.

"Your wound is open," Wiesel said. "It will remain. You are mourning, and how can I not feel the pain of your mourning? But death is not the answer."

The 82-year-old Nobel Peace laureate, author and human rights activist said that if the death penalty could bring back the victims, maybe he would change his stance. He did allow that murderers should be punished more harshly than other prisoners.

"They should get hard labor," he said.

"Death is not the answer" became the refrain for Wiesel as he wondered aloud what could be done to help survivors of violent crimes "so that families will not feel cheated by the law."

The Romanian native spoke with authority, having lost both parents and a sister in the Nazi death camps. He escaped Buchenwald in April 1945 when it was liberated by soldiers from the U.S. Army's Sixth Armored Division.

"I know," he said. "I know the pain of those who survive. Believe me, I know."

Wiesel spoke in the university's Memorial Chapel, which was packed with about 400 students, professors and invited guests. In simple, lyrical language that carried the lilt of his Eastern European beginnings, he defended his anti-death position using stories from the past.

In the Biblical story of Cain and Abel, the two sons of Adam, Cain is said to have asked God, after he had killed his brother and God wondered about Abel's whereabouts, "Am I my brother's keeper?"

"I think it wanted to teach us that whoever kills, kills his brother," Wiesel said.

"Elie Wiesel speaks about death penalty at Wesleyan," is the title of Julie Anne Rancourt's report in today's Middletown Press.

Nobel Peace Laureate Elie Wiesel delivered a lecture on the use of capital punishment in an ethical society to students, faculty, alumni and the public Tuesday evening at Wesleyan University.

The program, which was initially going to focus solely on building an ethical society, was altered to include Wiesel’s first ever detailed address of the use of the death penalty in this country.

And:

It is in part because of those experiences as a youth during the war that Wiesel does not believe that society should act as the angel of death. He believes in harsher punishment, such as hard labor for prisoners, but “we should not be the servants of death”.

Earlier in the day, while addressing the media, Wiesel spoke about the Cheshire home invasion case and ongoing trial.

“It would be almost obscene for me to comment about morality to the father (who survived)," Wiesel said. "I would only ask, do you really think that death could bring them back to life? It is not easy, but a civilized society needs to face such challenges. That father deserves a different language. We must find the words, the proper words, to deal with it.”

Recalling that his passion for his studies after surviving the war saved his sanity, Wiesel said that education is the key to building a moral society, and got a chuckle out of the audience which included Wesleyan President Michael Roth and his family when he said that teachers salaries should be raised to show our respect for them and their work.

“Remember what you’ve learned here, and remember that the answer is always in your hands,” Wiesel told the students.

Thanks to Ron Tabak for distributing.  I'm hoping that Elie Wiesel's entire remarks will be posted on his web site.

Keller Motion to Reconsider - Additional Coverage

The Motion to Recosider, filed with the Court of Review, is available in Adobe .pdf format.

"Execution 'ordeal' may not be over for Texas appeals judge," is the title of Peggy Fikac's report in today's Houston Chronicle.

It looks like it is not quite over yet for Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.

A judicial panel this month tossed out a public warning issued against Keller by the State Commission on Judicial Conduct. The commission acted after Keller refused to keep the court clerk's office open late to allow a condemned man, Michael Wayne Richard, to file a last-minute appeal of his 2007 execution.

Keller's lawyer, Chip Babcock, said then that his client's "ordeal" was over.

On Tuesday, however, the commission's executive director, Seana Willing, and special counsel John J. McKetta III asked the panel to reconsider its decision to dismiss the case. The two acted as prosecutors in the case.

Chuck Lindell writes, "Court asked to reconsider Keller ruling," for the Austin American-Statesman.
By Chuck Lindell.

"The proceedings should be remanded to the commission for reconsideration of the remedy appropriate for the violations that Judge Keller has been found to have committed," said the motion by Mike McKetta, an Austin lawyer who volunteered his time to act as examiner, or prosecutor, for the commission.

Chip Babcock, Keller's lawyer, criticized the filing.

"It's disappointing that the examiner won't let this thing go," Babcock said. "It doesn't raise any legitimate basis for revisiting the court's decision, and I expect the rehearing will be denied."

Earlier coverage begins with this post.

The Special Court of Review's Final Opinion is in Adobe .pdf format.  The Commission's Findings, Conclusions and Order of Public Warning is here.

Other 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.

Bring comfort and closure

That's the title of an OpEd by Cory Session in today's Austin American-Statesman.  It's a must-read.

As the brother of a man who was wrongfully convicted of crime he didn't commit, I am all too familiar with the pain that the relatives of Cameron Todd Willingham are going though now. My brother, Timothy Cole, died after serving 14 years in prison for a crime he didn't commit. But my family was able to use a Court of Inquiry proceeding and a declaration of innocence to clear his name. That procedure provided us much comfort and closure.

Rather than comfort and closure, Willingham's relatives are getting a first-hand education in Texas politics. Willingham, who was convicted of arson and murdering his three children, was executed by the state even though days before his execution a prominent arson scientist, Gerald Hurst, submitted a letter to the governor and the Texas Court of Criminal Appeals explaining that the critical testimony used to prove that Willingham intentionally set the fire was based on outdated arson science.

Former Texas Gov. and Attorney General Mark White, with the assistance of the Innocence Project, initiated a Court of Inquiry proceeding on behalf of Willingham's relatives to restore his reputation and to find out why he was executed after it was revealed that there were serious flaws with the arson evidence in the case. During a recent hearing, Judge Charlie Baird heard testimony from Hurst and another prominent arson expert, John Lentini. Hurst affirmed that there was no evidence proving arson. One by one, Lentini explained why each of the 20 factors used by the prosecution to show arson were inaccurate.

The only other evidence of guilt in the case was the testimony of a jail house informant. Lawyers introduced a handwritten letter from the informant recanting his testimony. The letter, which could have spared Willingham's life, was never turned over to Willingham's lawyer, a serious breach of prosecutorial ethics. Additional evidence was introduced that the informant received special treatment for his testimony even though he testified at trial that he wasn't promised any favors for his testimony against Willingham.

And:

For years, our family searched for answers. They didn't come in time to save my brother, but finally getting those answers enabled us to move on with our lives. The members of the state Forensic Science Commission appear to have had enough of Bradley's delay tactics and are poised to hear from their arson expert when they meet again in November. But the fate of the Court of Inquiry proceeding remains in limbo. It is my sincere hope that the Texas courts don't permanently bar Baird from issuing an opinion in this case, because Willingham's family deserves these answers, too.

Earlier coverage begins here.  All Willingham coverage is available through the Todd Willingham category index. 

An earlier OpEd by Session is noted; more on Tim Cole's wrongful conviction and posthumous exoneration, here.

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 Willingham case with links to all relevant documents.

Arizona Executes After Supreme Court Lifts TRO

The Supreme Court Order vacating Judge Silver's temporary restraining order is in Adobe .pdf.

"Arizona executes inmate after federal judge lifts stay," is Michael Kiefer's Arizona Republic report.

In only the second Arizona execution since 2000, convicted killer Jeffrey Landrigan died by lethal injection late Tuesday after the U.S. Supreme Court removed the last legal barrier.

His death came shortly after a curtain opened into the execution room at 10:14 p.m. Tuesday. The condemned man looked quizzically at roughly 27 people gathered to witness the event. He smiled to friends and family, his lip curling slightly under his reddish mustache.

When asked for any last words, he said in a strong voice with a heavy Oklahoma accent: "Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner," a reference to the University of Oklahoma Sooners.

He looked around and smiled again. Then, as the first drug -- sodium thiopental -- took effect, he slowly closed his eyes. A medical technician entered to check that he was fully sedated. Then the execution continued.

Death was pronounced at 10:26 p.m. and the curtain closed.

Landrigan had been on Arizona's death row for 20 years for the 1989 murder of Chester Dean Dyer in Phoenix.

Landrigan's execution at the Arizona State Prison Complex in Florence moved relatively quickly after the U.S. Supreme Court lifted a temporary restraining order that had been imposed Monday by a U.S. District Court judge in Phoenix and affirmed by the 9th U.S. Circuit Court of Appeals.

The court imposed the order as it tried to force Arizona to disclose where and how it had obtained its supply of sodium thiopental, one of three drugs used in Arizona executions. Attorneys had been battling for days over the issue.

The high court, in a terse one-page order issued after 7 p.m. Tuesday, agreed by a 5-4 decision with Arizona prosecutors that there was no reason to force disclosure.

The AP report is, "State Goes Overseas For Lethal Injection Drug," via NPR.

Facing a nationwide shortage of a lethal injection drug, Arizona has taken an unusual step that other death penalty states may soon follow: get their supplies from another country.

Such a move, experts say, raises questions about the effectiveness of the drug. But it also may further complicate executions in the 35 states that allow them, as inmates challenge the use of drugs not approved by federal inspectors for use in the U.S.

Arizona said Tuesday that it got its sodium thiopental from Great Britain, the first time a state has acknowledged obtaining the drug from outside the United States since the shortage began slowing executions in the spring.

"This drug came from a reputable place," Chief Deputy Attorney General Tim Nelson said. "There's all sorts of wild speculation that it came from a third-world country, and that's not accurate."

Nelson said the state revealed the drug's origins to let the public know that its supply is trustworthy and to dispel rumors. However, he did not name the company that manufactured it.

Without assurances of the drug's quality, many questions will be raised, including its effectiveness and how it should be handled, and would serve as a basis for lawsuits, said Deborah Denno, a law professor at Fordham University.

"The impact could be huge," Denno said. "The source of the thiopental is critical."

Tuesday night, Arizona executed Jeffrey Landrigan for a 1989 murder in the state's first execution since 2007. Landrigan died by injection at a state prison in Florence at 10:26 p.m. after a stay issued by a federal judge was lifted by the U.S. Supreme Court.

Landrigan's lawyers had argued he could be suffocated painfully if the sodium thiopental doesn't render him unconscious. In lethal injections, sodium thiopental makes an inmate unconscious before a second drug paralyzes him and a third drug stops his heart.

Hospira Inc. of Lake Forest, Ill., the sole U.S. manufacturer of the drug, has blamed the shortage on unspecified problems with its raw-material suppliers and said new batches will not be available until January at the earliest.

There are no FDA-approved overseas manufacturers of the drug.

The limited supply has also directly affected executions in California, Kentucky and Oklahoma, and may affect executions in Missouri, which says its supply of sodium thiopental expires in January.

The AFP report is, "Arizona executes man after Supreme Court green light," Via Google News.  The CNN report, "Arizona convicted killer's last words: 'Boomer Sooner'," is by Bill Mears.

Landrigan's was the 44th execution in the nation this year; the 1,232nd since 1977.

Earlier coverage begins with this post.

More In RE: Keller?

"Lawyers asking for review of Judge Keller ruling," is the AP report, via the Houston Chronicle.

Attorneys who led the state's case against the criminal court judge in Texas are asking a special court of review to reconsider its dismissal of a public reprimand against her.

Lawyers say the review court was wrong when it cleared Texas Court of Criminal Appeals Presiding Judge Sharon Keller. They argued, in a motion filed Tuesday, that the appropriate decision would have been to send the case back to the Texas Commission on Judicial Conduct.

Chuck Lindell posts, "Court asked to reconsider its ruling on Keller," at the Austin American-Statesman Focal Point blog.

Prosecutors Tuesday asked a special review court to reconsider its recent decision to void an ethics rebuke given to Presiding Judge Sharon Keller for her role in closing the Court of Criminal Appeals to a late execution-day appeal in 2007.

The motion for rehearing argued that the three-judge review court mistakenly dismissed Keller’s charges over procedural errors made by the Commission on Judicial Conduct.

The proper recourse, the motion argued, would have been to return the matter to the commission with instructions on the correct procedures to follow.

Dismissing the case was inappropriate because the court did not review the merits of the case against Keller, while the commission reviewed the evidence before reprimanding Keller for violating her duty as the judge, the motion said.

And:

In addition to voiding the warning, the review court forbade commissioners from reconsidering the charges against Keller, reasoning that they had already rejected censure because a majority obviously could not agree to assess the harsher punishment.

Tuesday’s motion suggested that such reasoning was purely speculative because members have never revealed how they voted or why they chose a warning.

The motion also asked the court to rescind its decision to let Keller recoup her legal costs from the state, noting that Texas law explicitly bans the practice when judges are investigated for potential wrongdoing.

Earlier coverage begins with this post from earlier today.

En Banc 3rd Circuit Set to Hear DNA Samples Case

That's the title of Shannon Duffy's report for Law.com / Legal Intelligencer.  LINK  Here's an excerpt from the beginning of the article:

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

One possible explanation for the court's latest action is that one of the three judges may have written a persuasive dissent that caught the attention of the other judges during the period when the decision was being internally circulated.

An audio recording of the April argument yields a slew of clues but nothing conclusive about how the three judges were viewing the case because they asked tough questions of both sides.

To understand the appellate argument, it's necessary to understand the lower court ruling that set the stage for the appeal.

In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government and held that DNA sampling of arrestees violates the Fourth Amendment.

Prosecutors argued that Congress authorized such DNA sampling of arrestees and that it serves the compelling government interest of identifying a suspect even better than fingerprints or photographs.

But Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity.

Although arrestees have a "diminished expectation of privacy," Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.

Journey of Hope Stops in San Antonio

Cary Clack writes, "A journey of hope starts on death row ," for his column in today's San Antonio Express-News.

By the time Shujaa Graham rose to the podium Sunday morning in an East Side church, tears were already rolling down his black cheeks and into his white beard.

Looking upward before his gaze swept the church, Graham said, "I am profoundly happy to be here in this church. Years ago, I didn't think I'd ever be in a church again."

For the next 20 minutes, in a voice that was soft yet riveting in its power, the 59-year-old Graham spoke about the three years he spent on San Quentin's death row before being exonerated in 1979 and freed in 1981.

"I can't find the words to describe how it was," he said. "Every day of my life I think about death row."

Graham is part of the Journey of Hope tour through Texas that will be in San Antonio through tomorrow. Founded in 1993, "Journey of Hope ... from violence to healing," is a nonprofit organization of murder-victim family members that travels across the country and throughout the world seeking the abolition of the death penalty.

The organization was founded by Bill Pelke, whose 78-year-old grandmother, a Bible teacher, was stabbed to death in 1985 by four teenage girls. The 15-year-old ringleader, Paula Cooper, was sentenced to die.

Pelke was with Graham Sunday morning at True Vine Church and talked about how he originally supported the death penalty ruling against Cooper.

"I was OK with that," he said.

But in late 1986, Pelke thought about his grandmother's life and about Jesus' teachings about forgiveness and prayed for love and compassion.

"I learned about the healing power of forgiveness," said Pelke, a Vietnam veteran and retired steelworker. "I knew that I didn't have to see someone else die for Nana's death."

An earlier post on the group's Texas visit is here; more on the Journey of Hope.  Related posts are in the religion and victims' issues indexes.

Texas Tribune Interviews Sharon Keller

You can watch the interview at, "An Interview With Judge Sharon Keller," conducted by Morgan Smith.

On Sept. 25, 2007, Sharon Keller allegedly spoke the words that launched a thousand editorials: "The court closes at 5 p.m." According to lawyers for Michael Richard, that's what the presiding judge of the Court of Criminal Appeals said when she denied their request to file a last-minute appeal of his death sentence on the night he was to be executed.

Ever since, a glaring national spotlight has focused on the state's death row appeals process and, to a lesser extent, on its method of regulating judicial conduct.

Earlier coverage begins with this post.

Sodium Thiopental Drug Source the Big Question in Arizona

Federal District Judge Roslyn Silver issued a Temporary Restraining Order against Arizona yesterday over the issue of the source of the state's lethal injection drug.  The state appealed the order, and early this morning the U.S. Court of Appeals for the Ninth Circuit upheld Judge Silver's ruling, issuing this Order.  Both documents are in Adobe .pdf format.

"US appeals court rejects Arizona request to lift stay of death row inmate's execution," is the latest AP post, via Google News.

A federal appeals court has denied Arizona's request to lift a judge's order blocking the execution of an inmate convicted of stabbing and strangling a man in 1989.

The 9th U.S. Circuit Court of Appeals ruled early Tuesday that the state had failed to provide enough information to show why the court should lift the stay imposed by a federal district judge on Monday. Arizona had scheduled the execution for Tuesday at 10 a.m. MST.

But Jeffrey Landrigan's lawyers contend he would suffocate painfully if a knockout drug doesn't render him unconscious before other drugs are administered to paralyze his muscles and stop his heart.

In issuing the stay Monday, U.S. District Judge Roslyn Silver said more time was needed to consider that argument.

An earlier AP report, "Judge blocks Arizona execution, state appeals," by Paul Davenport is via the Christian Science Monitor.

Landrigan's lawyers contend he could be suffocated painfully if the sodium thiopental didn't render him unconscious.

Silver ruled that was a legitimate concern and blocked the execution of Landrigan, who was convicted of the 1989 strangulation and stabbing death of Chester Dyer of Phoenix in a killing prosecutors said was part of a robbery.

The assumption of the state's three-drug execution protocol "is that the sodium thiopental will, in fact, be sodium thiopental and it will operate in its intended manner," Silver wrote.

The drug is in short supply nationally.

A ruling also was due from the state Supreme Court on the separate issue of whether Landrigan is entitled to a hearing on newly available DNA evidence. The justices were considering an appeal of a trial judge's refusal to hold a hearing.

Landrigan's lawyers said the new test results, which found DNA from only Dyer and a person other than Landrigan on certain crime-scene evidence, bolster his claim of innocence and justify holding a hearing. Prosecutors contend that another person was present at the murder in Dyer's apartment and the new test results don't change anything.

The state Supreme Court was expected to rule on the DNA issue by Tuesday morning, spokeswoman Jennifer Liewer said. The justices understand the urgency of the matter, she said.

A 9th Circuit panel on Monday rejected Landrigan's request for a stay of execution based on the DNA issue. The new evidence failed to show that Landrigan didn't participate in the killing, the order said.

On the drug issue, Silver also ordered prosecutors to provide Landrigan's lawyers with information about the manufacturers of the drugs to be used. Responding to an earlier order by Silver, prosecutors had submitted that information only to her, asking that it be kept confidential.

Landrigan attorney Dale Baich welcomed Silver's order.

"Obviously the court has some concerns here and wants to take a closer look at this issue," he said.

"Appeals court upholds Arizona execution restraining order," is Michael Kiefer's report for today's Arizona Republic.

A nationwide shortage of the barbiturate used in lethal injections has raised questions about where Arizona obtained the drug.

Silver ordered the Arizona Department of Corrections and the state Attorney General's Office to immediately turn over information she had requested Saturday night about the drugs.

The state so far has refused to do so under a statute concealing the identity of executioners and all people with "ancillary" functions needed to carry out an execution.

Silver did not buy that argument. But Goddard intends to stand firm, saying, "We believe - and our client (the Corrections Department) is adamant - that further disclosure is not permitted."

The legal maneuvers promised to continue through the night Monday.

Goddard vowed to appeal Silver's stay all the way to the U.S. Supreme Court to try to overturn the ruling in time to meet today's 10 a.m. execution time in Florence.

If the execution does not take place within 24 hours of that time, the state will have to return to the Arizona Supreme Court for a new death warrant, a process that could take months.

AFP posts, "US execution blocked in row over lethal drug source."

In the midst of an anesthetic shortage that has already forced postponement of lethal injection executions across the United States, Arizona says it has the drug in hand but is refusing to disclose where it was manufactured.

Jeffrey Landrigan, sentenced to death for a 1989 murder, was scheduled to be executed on Tuesday but his lawyers filed suit, arguing that he could die in great pain if the sodium thiopental is contaminated and doesn't work.

Federal judge Roslyn Silver ordered Arizona on Saturday to give the name of the drug manufacturer to Landrigan's lawyers, but the state prosecutors refused, citing confidentiality laws for executions.

Silver blocked the execution on Monday, saying more time is needed to consider the case, as the unidentified origins of the drug meant it could have been contaminated.

"The court is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug's manufacture or that has no history of contamination in manufacturing the product," he said.

"The balance of equities favors plaintiff because a stay could have been avoided had the state timely disclosed the source of its sodium thiopental."

CNN posts, "Judge puts off Arizona execution, saying state not forthcoming."

The New York Times has a brief item, "Arizona: Drug Question Holds Up Execution," by John Schwartz.

Fierce Pharma Manufacturing posts, "Inmate delays execution through drug-source protest," by George Miller.

Earlier coverage begins with this post.

More Book News

Yesterday's Washington Post carried, "Book review: 'Stay of Execution: Saving the Death Penalty from Itself' by Charles Lane."  The review is written by Seth Stern, co-author of the recently published, Justice Brennan: Liberal Champion.

Washington Post editorial writer Charles Lane succinctly makes the case in this slim volume for shrinking the death penalty in order to save it. The Supreme Court has pruned around the edges in recent years, barring capital punishment for offenders who are mentally retarded or were juveniles at the time they committed the crime. But Lane argues that state legislators and Congress should now take the lead in ensuring capital punishment is reserved for "the worst of the worst" crimes.

He would limit the death penalty to acts of genocide, terrorism and the most heinous pre-meditated murders, such as those involving torture and rape, while excluding single murders committed in the course of more common felonies, such as robberies. Lane would also centralize state decision-making about who gets charged with capital crimes. He is not too concerned about alleged racial bias or executing the innocent, neither of which he says is as large or ineradicable a problem as foes insist. Rather, he is troubled most about the inconsistent way capital punishment is applied.

Related posts are in the books index.

Federal Judge Orders Arizona to Disclose Drug Source

Judge Roslyn Silver's order is in Adobe .pdf format.

"Judge to question whether Arizona illegally obtained lethal-injection drug," is the title of Michael Kiefer's report in today's Arizona Republic.

On Sunday night, Gov. Jan Brewer announced that she would not grant a reprieve to Landrigan based on new evidence.

And today, a federal judge will question whether the state legally obtained one of the drugs needed for the execution by lethal injection. A nationwide shortage of sodium thiopental has raised questions by Landrigan's defense attorneys on whether the state went outside of U.S. Food and Drug Administration regulations to get its supply.

Despite a federal judge's order late Saturday, the state is balking at revealing where it obtained the drug, saying the information is protected by a state law concealing the identities of those involved in executions.

Last week, the Arizona Supreme Court refused to consider either the drug controversy or the new evidence.

These are the latest twists to Landrigan's long and troubled story, which, according to court records and media accounts, is a tale of crime, substance abuse and a life mostly spent in correctional facilities.

As Tuesday's scheduled execution approaches, Landrigan awaits his fate.

And:

When it was time to be sentenced, he dared the judge to sentence him to death.

"If you want to give me the death penalty, bring it on," he told Maricopa County Superior Court Judge Cheryl Hendrix. "I'm ready."

Hendrix complied with his wish on Oct. 25, 1990.

Hendrix, now retired, has since sworn in an affidavit that if she had known about Landrigan's background, she would probably have sentenced him to life in prison.

Landrigan was first scheduled to die in 1996, but his attorneys found grounds for appeal.

In September 2007, his appeals ran out, and the Arizona Supreme Court scheduled his execution for Nov. 1, 2007.

But then the execution was stayed because the U.S. Supreme Court was deciding whether lethal injection, as practiced by Kentucky, constituted cruel and unusual punishment.

The Supreme Court approved the Kentucky protocol in April 2008 and a new Arizona protocol was hammered out in state and federal courts in 2009.

Landrigan's appeals ran out again, and he was rescheduled for execution on Tuesday.

Last week, however, Landrigan's attorneys received preliminary analysis of DNA from the case. It was not tested at the time because there was no reliable DNA testing in 1989, when the crime took place.

In 2007, attorneys had sent Dyer's pants to a crime lab to have blood and semen stains tested. Two samples of semen were found, neither of which matched Landrigan. Dyer's DNA profile is unknown. But the blood was not tested.

After Landrigan had already been scheduled to die, a Superior Court judge approved sending the pants back to the lab to test the blood. The blood was found to belong to two individuals, one assumed to be Dyer, the other a third person who was not Landrigan. The implication, defense attorneys argue, is that someone else had sex with Dyer and then the two struggled, ending in Dyer's death.

"State ordered to reveal info about drug for execution use," is the latest AP post this mornign, via the Dallas Morning News.

A federal judge has ordered Arizona to disclose information about its recently obtained supply of a knockout drug that it plans to use in an execution scheduled Tuesday. State officials on Sunday were reviewing the order.

U.S. District Judge Roslyn Silver's order issued Saturday night said information about the sodium thiopental, including its maker and expiration date, aren't covered by a state law requiring confidentiality of executioners and others involved with executions to protect them from harassment, as the state had argued.

On Saturday night, the Republic posted Kiefer's, "Arizona told to reveal source of drug for execution."

A federal judge Saturday night ordered that the state of Arizona "immediately and publicly disclose" where it obtained a drug it intends to use to execute condemned murderer Jeffrey Landrigan on Tuesday.

The drama has played out for weeks as defense attorneys have tried to discern where the state found sodium thiopental, a barbiturate that is in short supply. Executions nationwide have been postponed because of the shortage.

U.S. District Court Judge Roslyn Silver canceled a hearing scheduled for Monday morning but has not yet determined whether to stay the execution.

On Sept. 30, the Arizona Department of Corrections announced that it had obtained thiopental, though court hearings revealed it had not come from its only apparent source approved by the U.S. Food and Drug Administration. FDA representatives have repeatedly said they are not aware of any other approved source of the drug in the U.S. or abroad.

The state has nonetheless declined to say where it got the drug, with Assistant Arizona Attorney General Kent Cattani citing a state law concealing the identity of executioners.

The Arizona Supreme Court on Wednesday refused to delay the execution because of the debate, and so attorneys at the Federal Public Defender's Office, which represents Landrigan, took the case to federal court. They maintain the drug may have been illegally imported.

On Thursday, Silver asked the state to "voluntarily" reveal the information. The state refused.

And:

In September, the Arizona Supreme Court scheduled Landrigan to die and asked the state to inform the court by Oct. 1 as to whether it had obtained the necessary drugs for the scheduled execution. The state did so, without revealing any further information.

A Chicago-area pharmaceutical firm approved by the FDA has not produced the drug since 2009 because of difficulties in obtaining raw materials. An FDA spokeswoman told The Arizona Republic that there is no mechanism in place to import the drug from other countries.

Earlier coverage begins here.

More Copmmentary Supporting DNA Testing for Hank Skinner

Sunday's San Antonio Express-News carried the editorial, "Confirm guilt beyond doubt by DNA testing."

In Texas, a person convicted of a crime must be found guilty beyond a reasonable doubt. By any sensible standard, the elimination of reasonable doubt should include the examination of evidence that might exonerate the accused. That is especially so in capital cases, where the state's ultimate punishment — execution — is irreversible.

The U.S. Supreme Court heard arguments last week that test this premise. In March, the high court halted the execution of Henry “Hank” Skinner in Huntsville, one hour before it was to take place.

And:

Advances in DNA analysis in recent years have exonerated 41 Texans of serious crimes, including rape and murder. Putting the wrong person behind bars — or sending him to the death chamber — is fundamentally an injustice to the wrongly accused. But it's also an injustice to victims and a danger to society that allows dangerous criminals to remain on the streets.

In this day and age, there's no reason why DNA evidence, when it's available, shouldn't routinely be tested as part of the appeals process if it wasn't introduced at trial. Doing so would eliminate questions of reasonable doubt and, in the cases of the truly guilty, limit their seemingly limitless avenues of appeal.

Former Bexar County District Attorney Sam Millsap's "Denial of DNA Testing," appeared in Saturday's New York Times as a letter to the editor.

As “Death, DNA and the Supreme Court” (editorial, Oct. 18) argues, the pursuit of the truth ought to trump legal wrangling, particularly in death penalty cases. As a former Texas district attorney, I am mystified as to why the state is refusing to do everything in its power to ensure accuracy in the case of Henry Skinner, who was convicted of murdering three people.

For more than a decade, Texas has been denying DNA testing for Mr. Skinner. This refusal to test important evidence is troubling because it is the statutory duty of the district attorney to see that justice is done. The prosecutor should be requesting, not resisting, the testing of this evidence — particularly since we know of 40 individuals in Texas who have been exonerated by DNA evidence. I know from personal experience how critically important it is to ensure that no errors are made. In 2005, a Texas newspaper argued persuasively that one of my capital murder prosecutions, the Ruben Cantu case, resulted in the execution of an innocent man.

I hope that the court finds in favor of Mr. Skinner so he can seek DNA testing. I do not know if he is innocent, but I do know that we must take all available measures to uncover the truth.

Earlier coverage of the Skinner case begins with this post.

Why the Death Penalty Still Exists in the US

That's the title of a book review of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, in today's Boston Globe.  The review is subtitled, "Author ties the practice to slavery, racism," and is written by Globe correspondent Kenneth J. Cooper.

Why does the United States, alone among Western democracies, still have the death penalty? It’s not a new question, but David Garland, a distinguished professor of law and sociology at New York University, provides fresh answers from a multilayered analysis.

In a review of several centuries of the death penalty, Garland shows it has passed through the same phases in the United States and Europe. Executions have evolved from gruesome, public displays of governmental power and impassioned expressions of revenge to more humane methods implemented in an orderly fashion behind prison walls.

Garland finds the death penalty’s evolution has been shaped by the emergence of thought that values individuals, including the convicted; a bourgeois refinement that recoils at bloody scenes; and a penal system that has made executions as a matter of punishment, not sovereign will.

What then accounts for the persistence of the death penalty laws on the books of 35 states and the federal government?

The title hints at the most provocative part of Garland’s answer. In American history, the “peculiar institution’’ is slavery. Anyone who thinks its vestiges were wiped out by the Emancipation Proclamation or civil rights laws should read this book and think again.

Until the 1970s, the United States and Europe were headed toward abolishing the death penalty, which other Western nations had accomplished by the 1980s. In Europe, abolition occurred through acts of one-party parliamentary systems or decrees from constitutional courts, even if public opinion favored the death penalty.

In 1972, the Supreme Court came close to doing likewise when it ruled existing death penalty statutes unconstitutional. That decision was the outcome of a campaign by the NAACP Legal Defense Fund, which built on arguments that executions in Southern states amounted to “legal lynchings’’ of black men who, for instance, were the only defendants receiving death sentences for rape (of white women).

The moment of abolition was near, but slipped away. Majority public opinion shifted from opposing capital punishment to supporting it. Garland attributes the change to a reaction that cast the death penalty as “a litmus test in the politics of crime control, a powerful symbol of states’ rights, and a prominent part of a conservative backlash against civil rights.’’ Racism, he notes, was encoded in all three.

The Harvard Press Typepad site featured the post, "America's Death Penalty as Strange Social Fact," last month.

In Peculiar Institution: America’s Death Penalty in an Age of Abolition, David Garland explains how capital punishment has persisted in the United States after being outlawed in all other Western nations. The endurance, he says, stems from the manner in which the American death penalty has come to bear the distinctive hallmarks of America’s political institutions and cultural conflicts. Below, Professor Garland outlines his anthropological approach to the topic and explains the implications of his book’s title. David Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University.  Peculiar Institution is new this month.     

-----

When I talk to people about my book on capital punishment, the first thing they invariably ask is, “Is your book for it or against it?” The answer, I tell them, is neither. 

In its discussion of America’s death penalty, Peculiar Institution diverges from the familiar cultural script that shapes most of our conversation. Instead of treating capital punishment as a moral dilemma to be debated, a policy problem to be resolved, or a constitutional question to be settled, the book approaches the institution as a strange social fact that stands in need of explanation.

And:

The second thing my interlocutors invariably ask is: “Why is the book entitled Peculiar Institution?” After all, isn’t the death penalty a familiar American institution that everyone knows? What is “peculiar” about that? And occasionally someone will ask if “peculiar institution” isn’t the name that southerners used to give to the institution of racialized slavery and which Kenneth Stampp memorably described in his classic book of that name? 

Here is what I reply: 

The death penalty is certainly familiar in the US, particularly in the southern states where most executions now take place. But in the UK where I grew up, and in the rest of the western world, capital punishment has long since been abolished and is widely regarded as a violation of human rights. Europe became a death penalty-free zone in 1981 when France finally dismantled its guillotine and in the years since, membership of the European Union has come to be conditioned upon abolishing the death penalty. 

And, in any case, not every US region embraces the death penalty and thinks of it as a traditional practice.

A hat tip to Huffington Post for digesting the Harvard Press post.  Related posts are in the books and race indexes.

Sodium Thiopental, Texas, and the State's Desire for Secrecy

Mike Ward has just posted, "Details on execution drugs should remain secret, prison officials say," at the Austin American-Statesman.  The print article will appear in tomorrow's newspaper.  It's a must-read:

In a new push to keep confidential details about the drugs used in Texas executions, state prison officials are asking Attorney General Greg Abbott to declare the information a state secret.

Details like how much of the three lethal drugs they keep on hand, whom the state buys the drugs from and how much taxpayers spend on them.

Their reasoning: Making that information public might trigger violent protests outside the execution chamber in Huntsville or even embolden death penalty opponents, if they knew the state was about to run short of the drugs.

"We submit that the release of any of the \u2026 information would be akin to a local DPS office providing a requestor (a potential terrorist) with how much ammunition was stored in the office," states a letter to Abbott from Patricia Fleming, an assistant general counsel for the Texas Department of Criminal Justice.

"As to the amounts of state money paid to the individual suppliers, if this information were to be released, the requestor could determine the amounts of the products purchased simply by consulting his neighborhood pharmacist, or pharmaceutical wholesaler or retailer."

The latest secrecy bid was prompted by a request from the Austin American-Statesman for information about suppliers and costs of the three-drug cocktail used to execute condemned prisoners, following news reports last month that supplies of one drug — sodium thiopental — were running low in other states and executions were being delayed.

In years past, some of that information was released by prison officials — including that they usually kept enough drugs on hand to carry out two executions.

The agency's secrecy request, the latest move by several agencies to keep information confidential from taxpayers by citing security concerns, has raised eyebrows of some prison officials who acknowledge that some of the information had been disclosed previously without question.

And:

Two other prison officials said few protestors show up for most executions and there have been no threats or violence, even arrests, in years. The officials asked not to be identified because they are not authorized to speak about security issues.

Firearms are prohibited within 1,000 feet of the death chamber by a longtime state law.

Related posts are in the lethal injection and TDCJ indexes.  The Texas Attorney General's Office makes official determinations of what is public information under the Texas Open Records Act, when state agencies assert that material is exempt from disclosure.

"Sunlight is said to be the best of disenfectants," is what future Supreme Court Justice Louis Brandeis said in his 1914 book, Other People's Money and How the Bankers Use It.  It's still true, thanks to journalists who peer into some of our society's darkened corners to give us a sense of the inner workings.  The Austin American-Statesman deserves credit for shining some sunlight on TDCJ.

Jeffrey Landigan Case Active on Several Fronts in Arizona

"Judge asks Arizona for execution-drug source," is the title of Michael Kiefer's report in today's Arizona Republic.

A federal judge has asked the Arizona Department of Corrections to voluntarily disclose where a drug was obtained that is needed for Tuesday's scheduled execution of convicted killer Jeffrey Landrigan.

Attorneys for Landrigan, who is sentenced to die by lethal injection, have asked U.S. District Judge Roslyn O. Silver to stay Landrigan's execution until arguments can be heard on the source of sodium thiopental to be used in the execution.

The drug is one of three used in Arizona's lethal injection process.

The defense has questioned how corrections officials obtained the drug amid a nationwide shortage. Its sole U.S. manufacturer has said it is not currently producing any.

Landrigan's motion in federal court argues that the Arizona supply of thiopental may have been manufactured by a foreign source not approved by the Food and Drug Administration, creating a risk of cruel and unusual punishment if the drug does not act as it should.

Silver late Thursday ordered state officials to respond by noon today and asked them to "voluntarily provide detailed information concerning the sodium thiopental it intends to use in plaintiff's execution, including the manufacturer and expiration date."

"If defendants choose not to provide such information, their response to plaintiff's motion shall include an explanation why they will not or cannot provide this information and/or why such information is not relevant to disposition of plaintiff's motion," Silver wrote.

And, this paragraph references Arizona Assistant Attorney General Kent Cattani:

Evidence suggests it may have been obtained by a Phoenix import broker. Cattani told the court the drug was obtained lawfully.

The FDA on Thursday said that any company supplying thiopental, a barbiturate that is classified as a controlled substance, must first gain the agency's approval.

The FDA has no authority over whether the drug is used for executions, FDA spokeswoman Shelly Burgess said, but does have control over its manufacture and distribution in the U.S.

"However, FDA is not aware of any firm currently able to supply thiopental to the U.S.," she said in an e-mail Thursday. "A company would need to submit an application to FDA in order to be considered for approval including approval for overseas manufacturers of a drug for U.S. markets."

The AP report is, "Ariz. board holds pre-execution hearing for inmate," via KTAR-AM.

The Arizona Board of Executive Clemency on Friday hears pleas for leniency on behalf of a death row inmate who refused to let his trial lawyer call relatives to testify on his behalf during sentencing.

``I think if you want to give me the death penalty, just bring it right on. I'm ready for it,'' Jeffrey Landrigan told the sentencing judge in 1990.

Now, 20 years later, Landrigan is asking for commutation of his death sentence to life in prison and a reprieve - a temporary delay of his execution scheduled Tuesday.

And the judge who sentenced him says she'd have given life in prison instead of a death sentence if she had known then what she knows now about his background.

Landrigan won't personally attend the clemency hearing, which comes as his current defense team wages last-minute court battles on his behalf.

On one front, they're requesting a hearing on newly available hearing on DNA evidence that they contend would bolster Landrigan's innocence claim. They're also trying to bar the state from using an execution drug that could be from a foreign source.

Earlier coverage begins with this post from yesterday; the 2007, Supreme Court ruling, here.  More on the  Supreme Court ruling in Schriro v. Landrigan, via Oyez

Texas Execution

Texas carried out its 17th execution of the year, last night in Huntsville.  It was the state's 464th execution since 1982; the 225th in the administration of Governor Rick Perry.  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 AP report, "Man, 51, is executed for murder of elderly couple, is by Juan Lozano, via the Fort Worth Star-Telegram.

Saying "send me home to my heavenly father," a 51-year-old Paris, Texas, man was executed Thursday night for the brutal slayings and robbery of an elderly couple for whom he did odd jobs.

Larry Wooten was convicted of killing Grady Alexander, 80, and his wife Bessie, 86, in 1996 in Paris.

To date, there have been 43 executions in the nation in 2010, and 1,231 executions since 1977.

According to TDCJ, one more execution is scheduled in Texas during 2010, on December 1.  One execution date has already been set for 2011.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

The Landrigan Case in Arizona

A. Bates Butler III, a former U.S. Attorney for Arizona writes the OpEd, "Man on death row deserves life term; Trial judge never was told of his brain damage," for today's Arizona Republic.

Jeffrey Landrigan is scheduled to be executed in Arizona on Tuesday. The judge who sentenced him to death has signed a declaration saying she would have spared his life if his lawyer had presented available evidence about his brain damage and abusive family background.

The judge's statement should give every Arizonan pause.

Landrigan committed a serious crime and deserves to be in prison for the rest of his life.

But he does not deserve to die. The Arizona Board of Executive Clemency and the governor have the power to stop Landrigan's execution, and they should use it.

The judge who sentenced Landrigan recently reviewed evidence not presented at trial that documented that he has brain damage, suffered from fetal alcohol syndrome, and struggled through an abusive and chaotic childhood. This evidence - which the judge said would have caused her to show leniency - was available at the time of sentencing but was not presented to her, according to court records.

For example, the judge was "surprised to learn" that Landrigan was interviewed by a psychologist before the sentencing hearing. The psychologist recommended further psychological or psychiatric testing.

The type of evidence never presented is the very type of evidence that could cause a sentencing court to choose life rather than death.

And:

Based on the evidence of Landrigan's brain damage, which was never presented at trial, 11 judges on the 9th U.S. Circuit Court of Appeals unanimously agreed that his trial counsel's performance was deficient, and nine of those judges said he was entitled to a hearing to prove whether the outcome of his sentencing would have been different if he had been represented by effective counsel.

The hearing never took place. By a 5-4 vote, the U.S. Supreme Court reversed the 9th Circuit's ruling in favor of holding an evidentiary hearing. Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result."

Thomas' statement turned out to be very wrong.

The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death.

No court has ever heard the mitigating evidence about Landrigan. And yet, within days, he could be executed in the name of people who care about fairness and justice.

Citizens count on the court system to correct its own errors. When the court system fails to correct itself, it is the role of the clemency board and the governor to fix what has been broken.

To be sure, Jeffrey Landrigan must be held accountable. Life in prison would serve the purposes of punishing him, keeping the public safe and upholding the Constitution.

Earlier coverage of the case begins with this post from earlier today; the 2007, Supreme Court ruling, here.  More on the  Supreme Court ruling in Schriro v. Landrigan, via Oyez

CCA Rules Former Inmate Innocent

"Court: Texas man freed after 27 years is innocent," is Juan Lozano's AP report, via the Washington Post.

Texas' highest criminal court formally ruled Wednesday that a Houston man who was freed earlier this year after spending 27 years in prison for a rape he did not commit is innocent.

In its brief opinion, the Texas Court of Criminal Appeals agreed with a lower court's recommendation that Michael Anthony Green be ruled innocent and that his conviction be set aside.

"After reading it, I almost cried. I was so happy," Green said.

The 44-year-old was released from prison in July after the Harris County District Attorney's Office reopened his case and new DNA tests it commissioned showed he did not commit the 1983 rape of a woman who had been abducted. Green was freed on a $500 bond while he waited for the ruling on his innocence.

He said that after being released, he had tried not to think about when the decision might come. But each week, he said, he kept telling himself, "Let it be this one, let it be this one."

Green, who now works as a paralegal for his attorney, Bob Wicoff, learned about the ruling when he came into the office on Wednesday. A copy of the opinion was taped to the back of a chair, the first thing Green sees when he walks into Wicoff's office.

"I had the opinion ready for him when he walked in. He was happy to see it," Wicoff said.

Wednesday's ruling allows Green to apply for compensation from the state for being wrongfully imprisoned, Wicoff said. State law provides $80,000 for every year a person is wrongfully incarcerated, making Green eligible for more than $2 million.

Wicoff said Green also plans to apply for a pardon based on actual innocence from Gov. Rick Perry.

And:

Authorities were able to identify the four men who abducted the women. But because the statute of limitations on the rape has run out, they cannot be prosecuted.

Green said he plans to continue working on a volunteer basis with Wicoff, helping him go through letters that inmates send about problems - DNA-related and otherwise - they say they have with their cases.

"I want to do this for as long as I can do it," Green said.

The ruling in Ex Parte Green is available in Adobe .pdf format.

Mission Impossible?

That's the title of Jordan Smith's look at the Court of Criminal Appeals and the upcoming general election in the current Austin Chronicle.  It's subtitled, "Hampton seeks to break GOP lock on Appeals court."

Here's the thorny question facing local defense attorney Keith Hampton: What does it take to galvanize voters to elect a Democrat to the Republican-dominated Court of Criminal Appeals?

The state's highest criminal court, which, among other things, reviews all death penalty cases, has been the sole domain of Republicans since the 1998 election, when the last Demo­crat on that bench – current Travis County District Judge Charlie Baird – was replaced during a continuing GOP surge led by top-of-the-ballot Gov. George W. Bush. Since then, the Democrats haven't consistently challenged the GOP for any of the nine seats on the most powerful criminal court in the state. In a very real way, says Hampton, the Democrats have all but ceded the court to the Republicans. "Libertarians never fail to have a candidate," he says, but the Dem message to voters is along the lines of "just go to sleep on your couch for another election cycle."

As far as Hampton is concerned, it's time for a big change on the court, and he's determined to give incumbent Judge Michael Keasler (the Republican who unseated incumbent Baird in 1998) a run for the money. But the question remains: Will it be enough?

And:

Keasler declined an interview request, but did answer two Chronicle questions by e-mail. For starters, he notes he is most proud of his 12-year "record of clear, principled judicial decision-making, resulting in bringing Texas criminal jurisprudence back into the mainstream, while constantly striving to render justice in each individual case." (This appears to refer to his admission to the Morning News that the CCA has developed a "poor reputation" over the past years. Still, Keasler's assertion that he has helped bring the court back into the mainstream is a matter of opinion. In the Dallas case of Wesley Ronald Tuley, for example, Keasler joined a dissenting opinion, which concluded that the court isn't the proper place to lodge a claim of actual innocence when a defendant has discovered new and compelling evidence after he has already accepted a plea deal. A better venue for relief, the dissenters assert, is via the Governor's Office and the executive clemency process. (As it happens, Hampton was the lawyer who argued the case, and won, at the CCA.)

Tuesday, the Bryan-College Station Eagle carried the editorial, "Recommendations for top two state courts."

Some of the most important races in the November general election involve candidates almost no one has heard of running for offices virtually no one understands. And yet, the outcome of the election is critical to all Texans and to the future of Texas.

The contested races involve three seats on the Supreme Court of Texas and one on the Texas Court of Criminal Appeals, the state's two top courts. Few Texans realize we have two high courts, one for civil and juvenile matters (which Texas law treats as civil cases) and one for criminal concerns. Fewer still can name the presiding judge for either court (Wallace Jefferson for the Supreme Court and Sharon Keller for the Court of Criminal Appeals) or any of the other members of the two courts. And yet, we will be deciding between incumbents -- all Republicans -- in the four contested races and their challengers.

All the candidates in the contested races were invited to meet with the Editorial Board and most chose to do so. The interviews generally took about an hour and the candidates were invited to make opening statements and share any campaign material they wanted. Board members then asked questions.

Our recommendations are but one source of information voters should use when heading to the polls. Other sources could include neighbors friends and co-workers, campaign advertising and literature, news stories and candidate forums and voter guides.

It is important for voters to inform themselves before going to the polls. However you vote, it counts and every vote matters. Please take the time to vote.

And:

It isn't that Judge Keasler has done a bad job on the Court of Criminal Appeals. But the court has tilted much too far to the right. Hampton would bring a modicum of balance to a badly unbalanced court.

The Eagle recommends a vote for Keith Hampton for Place 6 on the Texas Court of Criminal Appeals.

Earlier coverage of the Court race begins here.  As I've noted before, StandDown is non-partisan and does not endorse political candidates.

Additional Willingham News Coverage

"Are Fire Marshals Shirking Their Duty?," is Jordan Smith's article in the current issue of the Austin Chronicle.

In court testimony last week, two nationally recognized fire-science experts roundly discredited evidence that sent Cameron Todd Willingham to the death chamber for the 1991 arson-murder of his three children in his Corsicana home. Florida-based expert John Lentini and Austin-based Gerald Hurst testified during a hearing before District Judge Charlie Baird that there's no proof the fire that killed the children was intentionally set. Further, both experts questioned why anyone would continue to defend the science that the state used to convict Willingham – unless, of course, they are intent on ignoring the so-called "duty to correct," which compels scientists to admit when they've provided incorrect evidence or testimony in a criminal case. That's exactly what it appears state Fire Marshal Paul Maldonado has done, testified Lentini, by penning an Aug. 20 letter to the Forensic Science Commission that his office stands by "the original investigator's report and conclusions." Barry Scheck, co-director of the Innocence Project and one of the team of lawyers representing Willingham's surviving relatives, asked Lentini if there was any way to explain Maldonado's steadfastness. Lentini replied, "Only if someone is holding a gun to his head or is trying to avoid the duty to correct."

The testimony was part of a roughly three-hour hearing Oct. 14 in Baird's court. Willing­ham's relatives are asking Baird to find that Willingham was wrongfully convicted and that there's enough evidence to warrant opening a formal court of inquiry to determine if any state officials (i.e., the Fire Marshal's Office and/or Gov. Rick Perry) committed official oppression by allowing Willingham to be executed despite having been provided compelling scientific evidence challenging the propriety of his conviction.

And:

Lawyers for Willingham's family questioned Lentini and Hurst about problems with the evidence former fire marshal's investigator Manuel Vasquez (now deceased) testified to during Willingham's 1992 trial. At issue is the fact that some of Vasquez's conclusions were not even then supported by the standard of care for fire investigation, said Lentini. Some of his incorrect assessments were widely believed at the time, including the notion that rapid heating creates spiderwebbing in glass, a myth that Lentini ultimately debunked in 1992 (known as "crazed glass," it is in fact created only by rapid cooling, such as when water hits hot glass). But most of the assertions in Vasquez's initial report, and later in testimony at Willingham's murder trial, were not consistent with the established and accepted science. Lentini should know: He was among the experts who wrote the National Fire Protection Assoc­i­ation's manual on fire investigation.

Among the things Vasquez got wrong was the idea that burn patterns on a floor prove that an accelerant has been used to set the blaze. Those patterns, Lentini said, are actually created because items on the floor protect it from burning to the same degree as exposed flooring. Moreover, he testified that at the time of the Willingham fire, scientists had already shown that inside a room, fire will consume everything in its wake – burning underneath beds and tables, for example – as a result of a phenomenon called "flashover," in which fire rises to the ceiling and then consumes the room from the top down, eating fuel created by combustible materials, including furniture.

The Catholic News Agency posts, "Claims of executed man’s innocence refocuses Texas death penalty debate."

Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty and author of the book “Detour to Death Row,” spoke to CNA about the case and the death penalty debate.

Willingham “may be innocent,” he said, noting that his coalition has not taken a definite position on the case. However, it is supporting the court inquiry and the investigation of the Texas Forensic Science Commission.

The case should bolster efforts to abolish the death penalty in the U.S., Atwood believes.

“More and more people are opposing the death penalty in Texas. Death sentences and executions are both dropping.”

He attributed this drop to the prominence of cases of innocent people sent to death row, improved legal defense for the poor, the sentencing option of life without parole, and citizen education.

“Texas is the number one executing state in the nation with 436 executions to date,” Atwood said. “Texas politicians have always denied that an innocent person has ever been executed in the state. We know that this is not true.”

Atwood’s coalition aims to educate Texas citizens, particularly Catholics, about the death penalty with the hope that they will oppose it. The organization promotes the alternative punishment of life without parole. The coalition believes this alternative protects society from dangerous felons while upholding the sanctity of life.

Andrew Rivas, executive director of the Texas Catholic Conference, the public policy arm of the state’s bishops, is also monitoring the Willingham case. He called Texas “ground zero” for the nationwide debate over the future of the death penalty.

“We’ve got a serious road to cross to get to that point where we can have a definitive dialogue on the death penalty,” he told CNA in an interview.

Rivas previously worked on the staff of the U.S. Conference of Catholic Bishops on criminal justice issues and the bishops’ campaign to end the death penalty. Drawing on this experience, he said that revisiting individual executions is “a very difficult proposition.”

Earlier coverage begins with the preceding post.

The Latest Commentary on Todd Willingham

If you missed Tuesday broadcast of the PBS Frontline documentary, "Death by Fire," you can watch the complete episode at the link.

"Junk science and the death penalty, a toxic combination," that's the title of an editorial in today's Houston Chronicle, and it begins the latest Todd Willingham news coverage.

It's been six years since Cameron Todd Willingham was executed at age 36 for the arson murder of his three young daughters at the family home in Corsicana in 1991. But his case is far from over. In fact, it has become a catalyst for an intense debate on Texas justice, on the prevalence of "junk science" in Texas courts and on the validity of the death penalty itself.

Willingham consistently protested his innocence, and even before his death in 2004, experts had raised serious doubts that he had set the fire that killed his children.

And:

If a court of inquiry finds Willingham innocent, it will be the first ruling in this country's modern judicial system that an innocent person has been executed for a crime he did not commit — which could have profound implications for the future of the death penalty, especially in Texas, the country's most prolific execution state.

But equally important is the issue of junk science, which is endemic in Texas courts, according to Jeff Blackburn, chief counsel to the Innocence Project of Texas. One solution he advocates is forensic labs that are independent of law-enforcement agencies - a policy wholeheartedly endorsed by Harris County District Attorney Pat Lykos, who has been fighting for just such a regional, independent lab in Houston.

The forensic science commission, created in the aftermath of the colossal scandal that caused the closing of the Houston Police Department's crime lab in late 2002, is a good idea. We need to let it do its job - which is not to pass judgment on Willingham's guilt or innocence, but to review the scientific integrity of the evidence in the case. And the sooner we can get that independent regional crime lab up and running, the better for all of us.

"Bradley continues to undermine forensic science commission's credibility," is the title of Colleen McCain Nelson's post at the Dallas Morning News Death Penalty blog.  She's an editorial writer for the News.

Before John Bradley took the helm at the Texas Forensic Science Commission, plenty of folks worried that he would simply do the governor's bidding -- especially in the case of Cameron Todd Willingham. Unfortunately, Bradley seems determined to prove his detractors right, as he continues to thwart efforts to examine the outdated arson science that was used to convict -- and execute -- Willingham.

Bradley recently declared that Willingham was a "guilty monster." Other members of the commission rightly cried foul, noting that Bradley's pronouncement undermines the panel's credibility and objectivity.

And:

Also worth noting is Bradley's word choice: guilty monster. As luck would have it, Perry declared that Willingham was a "monster" when questions began to mount about Willingham's conviction. I'm sure that's just a coincidence, though ... right?

In the next post, I'll link to fresh news coverage on the case.  Earlier coverage 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 Willingham case with links to all relevant documents.

Texas Execution

Texas is scheduled to carry out its 17th execution of the year, tonight in Huntsville.  It would be the state's 464th execution since 1982; the 225th in the administration of Governor Rick Perry.  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 AP report, "Execution set for tonight in slayings of Paris couple," via the Houston Chronicle.

Larry Wooten is set for execution in the Texas death chamber in Huntsville Thursday evening for the 1996 murders of 80-year-old Grady Alexander and his 86-year-old wife, Bessie in the northeast Texas town of Paris.

To date, there have been 42 executions in the nation in 2010, and 1,230 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, one more execution is scheduled in Texas during 2010, on December 1.  One execution date has already been set for 2011.

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

Unlike several other states, Texas apparently has a stock for sodium thiopental, one of the three drugs used in the lethal injection, as noted here.

Arizona Supreme Court Rejects Information Request

Today's Arizona Republic reports, "Arizona court won't require info on execution drug."  It's written by Michael Kiefer.

The Arizona Supreme Court on Wednesday refused to force the Arizona Department of Corrections to disclose where it obtained the drugs needed to carry out a scheduled execution next week.

But the high court left a possible out for Jeffery Landrigan, who is scheduled to be executed Tuesday in Florence for killing a man in Phoenix in 1989.

Defense attorneys for Landrigan recently convinced a lower court judge to order DNA testing on bloodstains on the victim's blue jeans, despite Landrigan's pending execution. Supreme Court Chief Justice Rebecca White Berch asked that judge to explain her reasoning before ruling on whether to stay the execution and allow the testing to be done.

Landrigan's case also will be heard by a state clemency board Friday.

Most of a Wednesday morning hearing focused on where the state had acquired its sodium thiopental, a barbiturate designed as an anesthetic but also used nationwide to carry out executions by lethal injection. The drug is part of a combination that would be used to execute Landrigan.

The one pharmaceutical firm approved to manufacture the drug in the U.S. by the Food and Drug Administration has not produced thiopental since 2009. In wake of the shortage, executions in several states have been postponed.

And:

Assistant Arizona Attorney General Kent Cattani admitted Wednesday that the state's newly-obtained supply was not made by the sole U.S. manufacturer. Defense attorney Dale Baich of the Federal Public Defender's Office concluded that it had to come from outside the country.

Cattani cited a state law guarding the identities of executioners and all persons involved in the execution process as reason for not divulging the source of its drugs. But Baich's colleague, Karen Wilkinson, argued to the court that bringing the drug from overseas might violate FDA regulations, as thiopental is a controlled substance.

Justice Andrew Hurwitz pointedly asked her, "Is there federal law that forbids the use of non-FDA approved drugs in executions?"

Wilkinson countered that if the drug was substandard, it could amount to cruel and unusual punishment under the Constitution if it does not adequately sedate the condemned person so that he or she does not suffer pain from the following two drugs used in executions.

Hurwitz commented on the irony of calling attention to FDA regulations, which are intended to safeguard lives.

"These are drugs that are going to kill someone," Hurwitz said.

Cattani argued that the origin of the drug was irrelevant.

"The purpose of the drug is to cause unconsciousness," he said. He referred to the state's execution protocol requiring that medical personnel verify the level of unconsciousness before the execution goes forward.

Hours after Wednesday's hearing, Berch issued an order denying the defense motion. Baich said his office intended to pursue the drug matter further in federal court.

Berch, meanwhile, delayed ruling on the second motion related to the DNA testing.

Earlier coverage begins with the preceding post.  The Arizona Supreme Court order is in Adobe .pdf format.

Hearing on Arizona LI Drug

"US company not source of Landrigan execution drug," is the AP report posted by Paul Davenport, via the Arizona Capitol Times.

A knockout drug that Arizona plans to use in an upcoming execution was not made by the sole U.S. manufacturer, which means it likely came from another country, attorneys said during and after a state Supreme Court hearing Wednesday.

Jeffrey Landrigan, 50, is scheduled to die by lethal injection Tuesday for a 1989 killing.

His lawyers argue that using the drug sodium thiopental that has expired or was obtained from an unreliable source may not work correctly, potentially subjecting Landrigan to cruel and unusual punishment through death by suffocation.

They want the Supreme Court to order the state to disclose the source of the drug.

But prosecutors said they can’t identify the source because state law requires confidentiality for those involved with executions.

However, Assistant Attorney General Kent Cattani did say when questioned by justices during a hearing Wednesday that Arizona obtained its supply from a lawful source and that Hospira Inc., the only U.S. maker of the drug, didn’t produce it.

What Cattani said about Hospira means Arizona’s source must be foreign, Dale Baich, a lawyer for Landrigan, said after the hearing.

Hospira is currently not making the drug and it is in short supply nationally.

Earlier coverage of the Arizona case begins here.  Earlier coverage of the shortage of sodium thiopental begins here; related posts, in the lethal injection category index.

The Supreme Court's 2008 ruling in Baze v. Rees, a Kentucky case, examined the constitutionality of lethal injection executions.

A Notorious Nevada First

Scott Christianson writes, "The United States' first gas-chamber execution occured in Carson City on February 8, 1924," for the November/December issue of Nevada Magazine.

Early one chilly Friday morning, February 8, 1924, national attention briefly focused on the hard-rock state prison at Carson City.

In the institution’s former barbershop, guards nervously strapped a frightened Chinese convict into a crude wooden chair and exited the chamber. Outside the building, dozens of curious witnesses peered through the fogged windows in order to catch a glimpse of what was about to happen.

Although the state’s population numbered less than 80,000, Nevada’s reputation as a social laboratory was not limited to quickie divorce and gambling.

Gee Jon, 29, was slated to become the first convicted murderer to be put to death under Nevada’s newly enacted Humane Execution Law and the first person in the world to be legally executed by lethal gas.

Implemented as an alternative to grisly hanging, gassing was supposed to end life quickly and painlessly. Its advocates included leaders of the chemical industry, the U.S. Army’s Chemical Warfare Service, proponents of eugenics (the pseudo-science of racial purification), and progressive reformers.

And:

In 1994, a federal district court found that lethal-gas execution violates the U.S. Constitution’s ban on cruel and unusual punishment. The ruling was upheld.

The gas chambers at Carson City and other American prisons were eventually converted to lethal injection chambers or shut down altogether. What had originally been intended as a humane and progressive reform was abandoned 75 years after it was introduced.

Today, Jon’s unmarked grave lies behind the prison wall among the rocky dirt and sagebrush–a reminder of one of Nevada’s thornier milestones in 20th-century history.

There's more in Christianson's book, The Last Gasp: The Rise and Fall of the American Gas Chamber, published earlier this year; earlier coverage begins here.

David Kaczynski on the Journey of Hope

"David Kaczynski: Unabomber's Brother Campaigns Against Death Penalty," is the title of Craig Malisow's post at the Houston Press.

Once you become forever known as "The Unabomber's Brother," there are probably two ways you can go: you can do your best to hide (say, maybe move to a cozy, isolated cabin in Montana?) or you can use your position to further a cause close to your heart.

David Kaczynski chose the latter, and he spoke at the South Texas College of Law today as part of the anti-death penalty group Journey of Hope.

Comprising family members of killers, victims, and the exonerated, JOH questions both the moral and legal aspects of capital punishment. Although Ted Kaczynski ultimately pleaded guilty and avoided death row, he originally faced the death penalty, and brother David had to come to terms with the fact that he's the one who put Ted in that spot.

Describing the moment in 1995 when his wife first broached the subject of turning in his "crazy brother Ted," Kaczynski said he quickly realized that "any choice we made could result in someone dying."

The deeper he got into the mechanics of the criminal justice system, Kaczynski said, the more he felt that what's legal and what's right don't always coincide. He is now the executive director of New Yorkers for Alternatives to the Death Penalty.

And:

Following Kaczynski's speech was a presentation by JOH member Bess Klassen-Landis, who, in a quiet voice with an almost affectless tone, told about the unsolved, brutal rape and murder of her mother when Klassen-Landis was just 13. It's difficult to recount a journey from paralyzing fear and hatred to peace and closure without getting all sentimental and Lifetime-y, which made Klassen-Landis's account all the more powerful. It's the kind of speech you don't forget.

Related posts are in the victims' issues index.

The Eighth Amendment and the Fifth Circuit

"Sotomayor dissents from cert denial in Louisana prisoner rights fight," is the title of Marcia Coyle's post at the National Law Journal Supreme Court Insider.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit took just four sentences to reject a Louisiana prisoner's claim of harsh treatment violating the Eighth Amendment. Justice Sonia Sotomayor on Monday took four pages to reject the panel decision and to open a small window into her views on pleading and the Eighth Amendment.

Sotomayor was the sole dissenter from a denial of certiorari in Pitre v. Cain. When Anthony Pitre stopped taking his HIV medication to protest his transfer to a prison facility, he claimed that officials at that prison punished him by subjecting him to hard labor in 100-degree heat. He was rushed to an emergency room twice because the heat exacerbated his medical condition, but, he alleged, prison officials denied his repeated requests for lighter duty.

And:

The 5th Circuit erred in requiring Pitre to produce evidence to support his claim before a responsive pleading was filed, wrote Sotomayor. She cited for support Bell Atlantic v. Twombly, one of two recent Supreme Court decisions significantly altering the pleading standards in civil cases. That error would have been enough to reverse the lower courts, she added, but "more fundamentally" those courts misunderstood the nature of Pitre's Eighth Amendment claim.

The correct question under the Eighth Amendment, said Sotomayor, is to ask whether the officials involved acted with "deliberate indifference" to the inmates' health or safety. "Pitre's complaint alleges that respondents subjected him to labor that they knew posed `a substantial risk of serious harm' to his health notwithstanding his pleas for a more appropriate assignment, and he even attaches a letter from a prison official implying as much. This is more than sufficient to state a claim of deliberate indifference."

She added, "I cannot comprehend how a court could deem such allegations 'frivolous.' "

Related posts in the Fifth Circuit and incarceration indexes.

Texas Judge Feels Vindicated

That's the title of the AP report on Texas Court of Criminal Appeals Presiding Judge Sharon Keller.  It's via the Washington Post.  LINK

Texas' top criminal judge said Tuesday she feels vindicated that a special court dismissed a public reprimand of her for closing her court and preventing lawyers from filing a last-minute appeal hours before their client was executed.

"What happened to me shouldn't happen to any judge," Texas Court of Criminal Appeals Presiding Judge Sharon Keller told The Associated Press during an interview at her courthouse office.

Keller, 57, was absolved last week of wrongdoing, ending a legal fracas that began after she infamously ordered the court shut at 5 p.m. on Sept. 25, 2007, which lawyers for condemned killer Michael Richard said blocked them from filing a last-minute appeal. Richard was executed that night for the rape and slaying of a Houston-area nurse who had seven children.

The state Commission on Judicial Conduct issued Keller a "public warning" but she appealed, arguing the commission exceeded its authority and violated the state constitution. The court of review agreed.

And:

Texas Civil Rights Project Director Jim Harrington labeled the dismissal of the public reprimand against Keller as "pathetic, to be honest."

"You can see why people are so cynical," said Harrington, who was among lawyers filing complaints to the judicial review board against the judge. "I've been doing this for almost 40 years and you see this, judges playing games, it's kind of disgusting."

Earlier coverage begins here.

The Death Penalty and Connecticut Politics

Today's New York Times reports, "Murder Trial Puts Death Penalty in Spotlight in Connecticut Campaigns."  It's written by Paul Bass.

If Dannel P. Malloy’s gubernatorial campaign had the authority to set Connecticut’s court calendar, it probably would have scheduled the state’s most sensational murder trial for some other time. Like after Election Day.

As it is, the trial of Steven J. Hayes , one of two men accused of rape and murder in a Cheshire home invasion, has been riveting the state all fall, increasing the majority of voters who tell pollsters they support the death penalty.

Mr. Malloy is one of two Democrats in this fall’s two marquee races in Connecticut — for governor and United States Senate — who have called for the abolition of the death penalty. The other is Richard Blumenthal, the Democratic candidate for the Senate seat being vacated by Christopher J. Dodd.

The two candidates have ended up in different places and have taken different approaches this campaign season, as the Hayes trial kicked up questions about the death penalty and its enforcement.

In the 1980s, Mr. Blumenthal testified in the State Legislature in favor of abolishing Connecticut’s death penalty statute. He did so after representing a Florida death row inmate named Joseph Green Brown, who was wrongly convicted. Mr. Blumenthal succeeded in staving off the man’s execution just 15 hours before it was scheduled to take place.

That was then. At a news conference following a Senate campaign debate on Oct. 4. Mr. Blumenthal was asked about that position. He acknowledged it, then noted that as far back as 1990 his changed view had been on public record. “When I started running for attorney general, I supported the death penalty,” he said. “I’m a strong supporter now.”

Mr. Blumenthal argues that DNA advances since the 1980s have reduced the chances of false convictions.

Case closed. He and his Republican opponent, Linda McMahon, went back to trashing each other — she portrayed by Mr. Blumenthal as a heartless, outsourcing private employer hostile to the minimum wage, and he labeled by Ms. McMahon as a mendacious, clueless, job-killing career politician. No more talk about the death penalty.

In the governor’s race, on the other hand, Mr. Malloy never stops hearing about his opposition to the death penalty in light of the shocking murder of Jennifer Hawke-Petit, 48, and her daughters Hayley, 17, and Michaela, 11, and the beating of their father, Dr. William A. Petit. When he held a news conference on expanding Connecticut’s ports, Mr. Malloy was asked about it. In debates and on the campaign trail, his Republican opponent, Thomas C. Foley, who supports the death penalty, makes sure to mention it and try to force him to reiterate his position.

Mr. Malloy has stuck by his opposition. He has promised to sign a bill to abolish the death penalty if elected. (One of his early supporters, State Representative Gary A. Holder-Winfield of New Haven, succeeded in getting such a bill passed in 2009, only to have Gov. M. Jodi Rell veto it.

According to a Quinnipiac University poll released last week, 65 percent of voters expressed support for the death penalty, up from 60 percent a year earlier. A mere 23 percent were opposed. More than three-quarters supported giving the Cheshire defendants the death penalty.

Here's coverage of last week's Quinnipiac polling.  "Support for Conn. death penalty hits 10-year high," is the AP post, via the New Haven Register.

Support for Connecticut's death penalty has reached its highest point in more than a decade, and even some who generally oppose capital punishment say it's appropriate for a man convicted in the 2007 deadly Cheshire home invasion, according to a new poll.

Quinnipiac University's poll, released Wednesday, found 65 percent of those surveyed support the death penalty. That's up from 61 percent two years ago, and the highest number since the year 2000.

It comes as Steven Hayes faces sentencing this month after being convicted of murder, rape and other charges for his part in the 2007 deaths of Jennifer Hawke-Petit and her daughters, Hayley and Michaela.

Prosecutors are asking jurors to send him to death row.

And:

The pollsters did not ask specifically about voters' views on Komisarjevsky's fate if he is convicted, though they found 98 percent of those surveyed had read about the case.

Three of every four people surveyed favored the death penalty for Hayes, with 18 percent against it and 6 percent undecided. Men were slightly more likely to support it than women.

There are 10 inmates on death row in Connecticut, though one awaits a new trial based on legal questions over whether a baby was born dead or alive after he killed its mother.

The last person executed in Connecticut was serial killer Michael Ross in 2005.

The General Assembly approved a ban in 2009 on imposing the death penalty for future convictions — which would have included Hayes — but not retroactively for death row inmates, whose cases are in various stages of appeals.

Gov. M. Jodi Rell vetoed the ban, saying the state cannot tolerate people who commit particularly heinous murders.

John Lender writes, "76% Back Death Penalty For Hayes, New Poll Shows," for the Hartford Courant.

Nearly two-thirds of Connecticut voters favor the death penalty for murder, in general, while even more think it's appropriate for Steven Hayes, who has been convicted of killing a Cheshire woman and her two daughters, a Quinnipiac University Poll released Wednesday shows.

The poll shows that 65 percent of those surveyed support the death penalty in general — slightly higher than in recent years, when support has "hovered" about 60 percent, Quinnipiac poll Director Douglas Schwartz said.

When asked specifically about Hayes, 76 percent said they support the death penalty. Hayes was found guilty Oct. 5 in the 2007 home invasion that resulted in the deaths of Jennifer Hawke-Petit and her daughters Hayley, 17, and Michaela, 11. Hayes now awaits the penalty phase of his trial, scheduled to begin Monday. Each of his six capital-felony convictions is punishable by death.

Schwartz said that "support for the death penalty in a specific case can be higher than support in general. This is because some voters who oppose the death penalty in general support it for a particularly heinous crime."

Support for the death penalty dipped when people were given the alternative of jailing murderers for life with no chance of parole, the poll showed. When asked which they preferred, 46 percent chose the death penalty, 41 percent said life without parole, and 14 percent didn't know or had no response.

The death penalty divides the two major-party candidates for governor, though only 6 percent of those polled said they would vote for governor based on that issue alone. Dannel Malloy, the Democrat, opposes the death penalty, and his opponent, Republican Tom Foley, favors it.

On October 10th, the Courant ran the editorial, "Repeal The Death Penalty."

When better to discuss the use of capital punishment in Connecticut than in the midst of a heated election campaign and a ghastly murder trial?

Both the Nov. 2 election for governor and the conviction last week of Steven Hayes in the horrific 2007 deaths of a mother and her two daughters in Cheshire will have a definitive impact on whether death by lethal injection continues to be a punishment option in this state

We hope that it does not — that lawmakers and the next governor can summon the courage to substitute life in prison without parole as the ultimate penalty for capital crimes.

And:

Finally, the death penalty puts the state in a morally compromised position. As horrible as some crimes are and as evil as many of the perpetrators may be, the state should not be in their same business, the business of death.

Better for society — and a worse punishment for the guilty — is to let the killer live with himself and his crime for life without hope of freedom.

Earlier coverage from Connecticut begins with this post.

Reminder - PBS Frontline Tonight

The Frontline episode, "Death by Fire," airs tonight at 8:00 pm (CDT), 9:00 pm (EDT.)  Check your local listings, as they say.

The New York Times has a review, "Questioning the Guilt of an Executed Father," by Mike Hale.

The report, “Death by Fire,” on Tuesday night is polished, persuasive and restrained — hallmarks of the “Frontline” ethos. The graphics don’t drip blood; an anchor didn’t parachute in at the last minute to stand in front of a prison and read a few overheated lines. It’s tasteful muckraking. That might sound like faint praise, but in the current news climate, it’s one way to stand out.

“Death by Fire” is also well timed, in one sense: A Texas judge convened a hearing last week to examine whether the program’s subject, Cameron Todd Willingham, was wrongly convicted of murder in the 1991 fire in Corsicana, Tex., that killed his three daughters — and whether, therefore, Texas had killed an innocent man. On Thursday a state court of appeals granted a county prosecutor’s motion to stop the proceedings temporarily.

The stir created by the largely symbolic hearing confirms one of the points made in “Death by Fire,” which is that the central question in the Willingham case — Did he set the fire that consumed his house, or did it start accidentally? — has been overtaken by Texas politics, the emotions surrounding the death penalty and the pride of Corsicana, a small city in the oil fields south of Dallas.

In another sense, the program feels a little past the curve, coming a year after David Grann’s Polk Award-winning article in The New Yorker, “Trial by Fire,” put the Willingham case and its implications for the death penalty in the national spotlight. But this television account gives faces and voices to the key players on both sides.

Strictly speaking, the case is a battle about forensics, pitting local fire and police officials who decided on arson (using 1991 fire investigation methods) against a phalanx of outside experts who looked at the evidence years later and agreed that the fire was accidental and that Mr. Willingham was innocent.

At the Texas Tribune, Morgan Smith writes, "Frontline Season Premiere Features Willingham Case."

Two weeks before the gubernatorial election, the season premiere of PBS Frontline features a timely topic: the Cameron Todd Willingham case — and despite initial hesitation, all public broadcasting stations in Texas will air it. 

When Texas PBS stations originally learned the episode of the nationally syndicated show would run so close to Election Day, some expressed concern over how the public might perceive the decision to show the hour-long documentary on the highly controversial case, which raises the question of whether Texas executed an innocent man, according to Bill Moll, the general manager of San Antonio's KLRN. But after reviewing and discussing its content with Frontline producers, Moll said: "We felt that there was no motive that has anything to do with the election; it just kind of hits where it hits."

David Barron writes, "Frontline takes aim at hot-button issues," for the Houston Chronicle.

The documentary series opens its 28th season at 8 tonight with Death by Fire, which details the politically charged prosecution, conviction and execution of Cameron Todd Willingham. The Corsicana man was executed in 2004 for the death of his three daughters in a 1991 fire that originally was said to be arson but whose origin is now in dispute.

Tonight's show comes as the Texas Forensic Science Commission is in the midst of its investigation into questions about the integrity of the scientific evidence used by prosecutors against Willingham. Hearings are scheduled to continue into November, but Frontline producer David Fanning and his staff spent last week prepared to edit Death by Fire if circumstances warranted.

"You're always trying to be on the tip of the news curve," he said. "We were waiting to make changes if needed."

The Willingham case is one of several forensic crime stories on Frontline's agenda. An August episode focused on misconduct by New Orleans police after Hurricane Katrina in 2005, and at least two shows similar to Death by Fire are planned later this season, Fanning said.

Earlier coverage begins here.  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 Willingham case with links to all relevant documents.

An Update on Troy Davis

"Judge says Troy Davis should appeal directly to U.S. Supreme Court," is the breaking report from the Savannah  Morning News.  It's by Jan Skutch.

Attorneys for Troy Anthony Davis must appeal a denial of a new trial to the U.S. Supreme Court – not the 11th U.S. Circuit Court of Appeals - in the 1989 slaying of off-duty Savannah police officer Mark Allen MacPhail, a federal judge has ruled.

“Any review of this court’s decision should be by the Supreme Court itself, not an intermediate appellate court,’’ U.S. District Judge William T. Moore Jr. ruled.

Moore ruled in a 172-page order in August that Davis failed to prove his innocence in the MacPhail slaying and will not get a new trial.

He sent his ruling directly to the Supreme Court.

The federal court heard evidence and argument after the Supreme Court returned the case last year with instructions that a judge hear testimony to determine whether evidence not available at Davis’ 1991 trial would “clearly’’ establish his innocence.

After two days of hearings in June, Moore ruled Davis’ new evidence “casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.’’

Davis’ lawyers then sought a certificate to appeal to the 11 U.S. Circuit Court of Appeals in Atlanta, rather than directly to the Supreme Court.

Moore ruled that since the Supreme Court exercised its “original jurisdiction’’ in transferring the case to his court, it removed the appellate court from the equation.

He said it would be “incredibly anachronistic’’ for a court of appeals to have jurisdiction over cases under the Supreme Court’s jurisdiction.

Earlier coverage of the case begins here.

An Update on the Arizona LI Drug Litigation

"Arizona execution caught in drug supply debate," is the title of Paul Davenport's AP report, via the Arizona Capitol Times.

Claims based on politics, untested evidence and an undisclosed source for a drug in short supply will be debated as Arizona officials wrangle with lawyers for a death row inmate scheduled to be put to death in the state’s first execution since 2007.

The state Supreme Court on Wednesday will hear arguments on two defense requests to block Jeffrey Landrigan’s scheduled Oct. 26 execution by lethal injection at a state prison in Florence.

One stay motion contends Landrigan couldn’t get a fair shake from Gov. Jan Brewer because she’s running in the Nov. 2 election and wouldn’t want to appear to be soft on crime in the wake of three other offenders’ escapes from a privately operated state prison near Kingman. Another cites a defense expert’s inadvertent failure to conduct some evidence for DNA.

A third pending defense motion, one that carries threads into other states, asks the court to order Arizona authorities to disclose their source of sodium thiopental, a sedative used to knock out inmates before injecting them with two other drugs to cause death.

Landrigan’s lawyers suggest that using sodium thiopental that has expired or was obtained from an unreliable source may not work correctly, potentially subjecting Landrigan to cruel and unusual punishment through death by suffocation.

Their most recent filing includes a copy of an Oct. 6 court filing in which California prosecutors said the California Department of Corrections on Sept. 30 obtained sodium thiopental that expires in 2014.

It also cited statements by the drug’s U.S. manufacturer, Lake Forest, Ill.,-based Hospira Inc., that its last production lots for the drug had 2011 expiration dates. Given that, company spokesman Dan Rosenberg said in an e-mail Monday, any sodium thiopental with an expiration date of 2014 “cannot be Hospira product.”

Arizona prosecutors say they can’t identify the source of the drug because state law requires confidentiality for those involved with executions.

And:

Oklahoma corrections officials obtained sodium thiopental from Arkansas for use in the execution Thursday of Donald Ray Wackerly. Arkansas had some to spare because it didn’t anticipate conducting an execution before the supply’s 2011 expiration date, Deputy Director Wendy Kelley said.

However, Arkansas was not Arizona’s source of the drug, she said.

Earlier coverage begins with this post.

A Challenge to Post-Conviction Indigent Defense in Mississippi

Today's Jackson Clarion-Ledger reports, "State's legal help for death row inmates called failure," by Jimmie E. Gates.

Mississippi consistently has appointed unqualified, underfunded and overburdened attorneys to represent death row inmates in their appeals, a petition filed Monday with the state Supreme Court says.

The brief was filed on behalf of 15 death row inmates challenging the systemwide failure to provide them with competent counsel during their appeals after conviction.

The death row inmates are: Steve Knox, Michelle Byrom, Blayde Grayson, Benny Joe Stevens, Jan Michael Brawner, Rodney Gray, Jeffrey Harvard, Richard Jordan, Thong Le, Willie Manning, William Mitchell, Stephen Powers, Larry Matthew Puckett, Gary Carl Simmons and Alan Dale Walker.

"The remedies sought ... are to correct the harm they suffered as a result of the state's failure to do what it promised to do: provide them with competent and conscientious counsel before executing them," according to the 51-page document filed by Jackson attorney Jim Craig and attorneys from Chicago, New York and Washington, D.C.

An injunction is sought to ensure that all prisoners sentenced to die receive competent and conscientious counsel for future proceedings.

In May, a lawsuit was filed in Hinds County Chancery Court on behalf of 16 death row inmates, including Gerald James Holland, who was facing execution.

Chancery Court Judge William Singletary dismissed the suit, citing lack of jurisdiction, and Holland was executed days later.

Court papers filed with the state high court argue that the Chancery Court erred in its decision.

And:

Glen Swartzfager, director of the Office of Capital Post Conviction Counsel, has acknowledged in court papers that some death row inmates appeals weren't adequately represented during previous administrations.

Swartzfager, who became director in 2008, was out of the office Monday and unavailable for comment.

The office was created in 2000. From the inception of the Office of Capital Post Conviction Counsel, the state set out to destroy the office's ability to provide competent and conscientious representation, the lawsuit says.

The appeal says the state:

# Failed to provide essential staff.

# Failed to provide critical funding.

# Appointed the office to represent more death-sentenced prisoners than it could competently and ethically represent at one time.

# Interfered with the performance of the duties of the director and the staff of the office.

# Failed to take corrective action once it became obvious that the office was failing to provide competent and conscientious counsel.

"15 Mississippi death row inmates challenge legal help's adequacy," is the AP report, via the Clarion-Ledger.

The original lawsuit included 16 inmates. One of the plaintiffs, Gerald James Holland, was executed May 20.

None of the remaining 15 inmates has had an execution date set through Monday.

The lawsuit claims the Mississippi Office of Capital Post-Conviction Counsel was inadequately staffed and funded and its attorneys were not versed in handling death row appeals.

The state office was created in 2000 to lift the burden off counties to pay for continuing death row appeals.

The attorney general's office will file a response to the appeal sometime later.

In the appeal, which gives only one side of the legal argument, Jackson attorney Jim Craig said the state has consistently appointed unqualified, underfunded and overburdened attorneys who cannot provide the "competent and conscientious" post-conviction counsel mandated by law.

The Office of Capital Post Conviction Counsel represents death row inmates in state post-conviction proceedings. In a post-conviction petitions, an inmate argues about new evidence – or a possible constitutional issue – that could persuade a court to order a new trial.

The inmates allege in the complaint that the Supreme Court itself has faulted MOCPCC counsel for filing petitions that are incomplete, contain misspellings and lack in key arguments and evidence.

Related posts are in the indigent defense index.

Judge Keller

Mary Alice Robbins posts, "Judge Sharon Keller Speaks Out About Dismissal of Misconduct Charges," at  Texas Lawyer.  Here's the opening:

Breaking her silence after three years, Texas Court of Criminal Appeals Presiding Judge Sharon Keller says she feels "vindicated" by a special court of review's decision to vacate the State Commission on Judicial Conduct's public warning and charges against her.

Although some reporters have written that the three-justice court of review's Oct. 11 decision in In Re: Honorable Sharon Keller was only a technical victory for Keller, she doesn't see it that way.

"I won," Keller says. "People can call it what they want."

Keller, a member of the CCA since 1995 and its presiding judge since 2000, also says she will seek re-election in 2012. "I have always planned on doing that," she says.

Her judicial conduct case played out against the backdrop of debate over the death penalty. Dubbed "Sharon Killer" by some anti-death penalty activists, Keller has experienced not only the commission's investigation and prosecution of its charges against her but also critical media coverage and protests at her home.

"It's been a three-year-long ordeal," Keller says.

Austin solo Lillian Hardwick, co-author of the "Texas Handbook on Lawyer and Judicial Ethics," says what many people have focused on in Keller's case is the death penalty.

"Make no mistake, the death penalty is a serious issue, but that's not what this is about," Hardwick says.

Hardwick says, "It's whether what Judge Keller said and did on that day [Sept. 25, 2007] violated the Code of Judicial Conduct and the Texas Constitution."

In its judgment in Keller , the court of review noted that the judicial conduct commission "erred as a matter of law" on July 16 when it issued its order of public warning to Keller for her conduct in the case of convicted murderer Michael Richard, whom the state executed on Sept. 25, 2007. The commission's error, according to the court of review's opinion, was in issuing a sanction not permitted by the Texas Constitution or the state's Government Code after the initiation of formal proceedings against Keller.

However, the court of review also noted that the resolution it reached "is not an opinion on the underlying merits."

And:

State Rep. Lon Burnam, D-Fort Worth, says, "Contrary to what Judge Keller's lawyer says, it ain't over yet."

Burnam says he will file a resolution in the Texas Legislature's 2011 session to start impeachment proceedings against Keller. He filed a similar resolution in 2009, but the measure stalled in a House committee.

"The woman's also got a major ethics decision against her," Burnam says, referring to the Texas Ethics Commission's (TEC) assessment of a $100,000 civil penalty in April for multiple omissions on her 2007 and 2008 personal financial statements.

According to the Travis County District Clerk's Office, Keller filed a petition to appeal the TEC penalty on June 10. Austin solo Ed Shack, Keller's attorney in the TEC case, says Keller's appeal is still pending in a Travis County district court.

The Texas Office of the Attorney General represents TEC in Keller's appeal of the administrative penalty. OAG spokesman Tom Kelley declines comment on the appeal because the case is still in litigation.

While Keller's problems are not completely over, CCA Judge Cathy Cochran believes that ending the judicial conduct commission's proceedings removes a black cloud that has hung over the entire court.

Earlier coverage begins with this post; more on fine issued by the Texas Ethics Commission, here.

Texas Wants to Execute a Man Without Examining All the Evidence

That's the title of an editorial in today's Washington Post, following up on the Supreme Court oral arguments in Hank Skinner's case.  LINK

Mr. Skinner, who has consistently maintained his innocence, twice has failed to persuade Texas judges to allow tests of this long-ignored evidence. The U.S. appeals court with jurisdiction over Texas affirmed the state court decisions. The case is now before the U.S. Supreme Court, which heard arguments on Wednesday.

In 2009, a 5-4 majority of the justices turned down a similar request by an Alaska death-row inmate. But in that case the justices noted that Alaska did not have a law that allowed inmates to press for post-conviction DNA tests. They also said that the Alaska inmate should have brought his case to state court first, rather than going directly to the federal courts. These issues do not exist in Mr. Skinner's case. Texas, like most states, allows inmates to seek post-conviction DNA tests; Mr. Skinner turned to the federal courts only after he had exhausted his state court opportunities.

Brandi Grissom posts, "An Interview with UT Death Penalty Lawyer Rob Owen," at the Texas Tribune. 

As he walked across the Capitol grounds in Washington, D.C., last week, you could almost see the anxiety lift from attorney Rob Owen's shoulders. He had just finished telling the nine justices of the U.S. Supreme Court why his client, Texas death row inmate Henry “Hank” Skinner, deserved another shot at getting DNA evidence in his case tested. In an interview with the Tribune that day, Owen described the pressure of standing before the high court to argue for another man's life.

It was the third time that the co-director of the University of Texas School of Law Capital Punishment Center presented oral arguments to the Supreme Court in a Texas death penalty case. He talked about how the state that hands down the death penalty more than any other has influenced capital punishment law through cases at the high court.

Earlier coverage of the Skinner case begins with this post.  The transcript of the oral argument is available in Adobe .pdf format.  The SCOTUS Blog case file is here.

Future Dangerousness - UPDATED

"Longtime expert witness unreliable, court says," is the report in today's Austin American-Statesman.  It's written by Steven Kreytak.

In his decades working as a forensic psychiatrist, Dr. Richard Coons of Austin has testified at dozens of death penalty trials across Texas in which he opined about how defendants would behave in the future.

In Travis County, prosecutors called him in the past year to testify during the sentencing trials of killers Milton Gobert and Paul Devoe. Coons pronounced that, in his expert opinion, both men would be a future danger. They both received the death penalty.

Coons' paid testimony at those trials and others could get new scrutiny after the Court of Criminal Appeals ruled last week — in a Waco death penalty case — that Coons' methodology for predicting future dangerousness is not reliable.

The court upheld Billy Wayne Coble's death sentence in the killings of his wife's mother, father and brother, ruling that other evidence presented at sentencing supported the McLennan County jury's findings.

The ruling, however, was a significant victory for capital defense lawyers statewide who for years have fought to persuade courts to prohibit the testimony of Coons and other forensic psychiatrists. The lawyers say such testimony offers nothing more than opinions.

"If you are going to be an expert, you should have some scientific basis of what you are testifying about," said Russ Hunt Jr., a Georgetown lawyer who represented Coble at trial. Coons "basically just says, 'Trust me. I'm a doctor. I know it when I see it,' " Hunt said.

And:

For someone to be sentenced to death in Texas, juries must find that there is a probability they pose a continuing threat to society by committing continuous acts of violence and that there are no mitigating factors to warrant a sentence of life in prison.

The U.S. Supreme Court ruled in 1983 in Barefoot v. Estelle that psychiatrists are competent to give opinions on the first question — the so-called future dangerousness of the defendant.

The testimony often comes after a psychiatrist interviews the defendant and evaluates pertinent documentation from the case, including their medical and criminal history. But even when the defendant is not interviewed, psychiatrists are sometimes allowed to give an opinion on a hypothetical scenario, usually one that matches the facts of the case at issue.

At Coble's trial, Coons testified that he has developed his own methodology to come to a conclusion on future dangerousness, one in which he considers factors such as the person's conscience, criminal history and attitudes toward violence.

"These factors sound like common sense ones that the jury would consider on its own," Judge Cathy Cochran wrote in the opinion for the court. Cochran noted that Coons could not show how his past predictions have fared or whether the factors he has considered are validated by any research.

In a dissenting opinion, Judge Sharon Keller said expert witnesses with some specialized knowledge should be allowed to testify about it to aid the jury in reaching a conclusion. Coons' experience and educational background "place him in a better position than the average juror."

The CCA ruling in Coble is available in Adobe .pdf format, as is the concurring opinion written by Judge Keller.

Texas is unique among the states with capital punishment upon its reliance of predictions of future dangerousness.  Earlier coverage of this critical issue begins with this post.

UPDATE with new document link -- In 2004, Texas Defender Service published Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness.  It's a must-read.

In San Antonio

"Questions raised on death penalty," is the title of Jan Jarboe Russell's latest column in the San Antonio Express-News.

Despite the wishes of the family of the murdered Viola Barrios, as much a saint in San Antonio as a restaurateur, District Attorney Susan Reed sought — and failed to receive — the death penalty for Joe Estrada, who on April 24, 2008, shot Barrios in the head with an arrow while burglarizing her home.

So it's no surprise that political operatives from both Reed's camp as well as that of her opponent, Nico LaHood, have pressured Louis Barrios, Viola's son, for support.

Barrios is keeping his opinion to himself.

“I don't want to politicize my mother's death,” said Barrios when I caught up with him last week. “I will cast my vote, but I'm holding my silence out of respect for my mother, who never considered herself but always put others first.”

His silence is instructive. Normally, Barrios supports Republicans, and he's known Reed for years.

On the other hand, Democrat LaHood and his family are longtime friends. Conservative Christians for Nico LaHood has scheduled a fundraiser at La Hacienda, the Barrios family's second location, at noon Monday.

Louis Barrios' neutrality hurts Reed more than LaHood, who is the clear underdog.

And:

Whether Reed is the next DA or if LaHood pulls an upset, the Estrada conviction raises questions about how the death penalty should be applied in Bexar County.

The fact is that the cost of trying death-penalty cases is much higher than other murder cases. Just last week, the Bexar County Commissioners Court appropriated another $1 million, on top of the $13 million already paid, for indigent legal defenses in 2010.

Cost is not the only consideration, but it is a valid one. New Mexico recently abolished the death penalty in part because of concerns about wrongful convictions but also because the cost of trying a death-penalty case in New Mexico was six times that of an ordinary murder case.

Hang 'em high is apple-pie politics in Texas. But in this case, respecting the wishes of the family — and saving Bexar County some money — would have been the better choice.

Perry & White on Capital Punishment

The Texas Tribune has posted interviews conducted by Evan Smith with the two major gubernatorial candidates, Republican Rick Perry and Democrat Bill White.

Smith asks both candidates, "Why not issue stays of execution across death row until we can be sure there are no innocent people on death row?"

In the interview with Governor Perry, this occurs at 53:35 into the interview.

In the interview with former Houston Mayor Bill White, this occurs at 43:34 in the interview.

A navigation bar in the bottom of the video window allows you to fast forward and repeat.  Governor Perry refused invitations to debate White; hence the dual interview format.

Both candidates oppose a blanket moratorium.  White talked about his actions as mayor during the HPD crime lab scandal.  The Q&A with Perry is more extensive, covering Todd Willingham and Tim Cole.

Earlier coverage of Perry is here; White, here.  Early voting in Texas begins today.

Andrew Cohen on Judge Keller

"A Terrible, Horrible, No-Good, Very-Bad Week in the Law," is Andrew Cohen's post at the Atlantic.

Day after day, drip after drip, came bad tidings. That creaking sound you thought you heard Monday? It was the sound of a thousand honorable judges all over the country rolling over in their graves at the news that the Texas judicial system has officially whitewashed from the record the disgraceful conduct of Judge Sharon Keller. She's the jurist who inexcusably blew off a last-minute appeal from a condemned man--an appeal that would have stayed his execution but did not--because she had to meet her repairman at home. How Texas--and the state bar association--can countenance such conduct unbecoming a judge beggars belief.

At least there is one member of Congress courageous enough to speak out against such "lawless" behavior by a judge. Oh, wait. I must have had too many Woodfords. I was initially encouraged when Rep. Steve King (R-Ia.) came out Tuesday with the following statement: "Lawless judges should be removed from the bench.... Judges should not be rewarded for flagrant disregard of the Rule of Law and the American people should respond by pursuing avenues which would result in the removal of lawless judges from the state and federal bench."

But then I realized that Rep. King wasn't talking about Judge Keller, he was talking about U.S. District Judge Virginia Phillips. And that he wasn't criticizing Judge Keller for her heartless misconduct but rather was criticizing Judge Phillips for the substance of her principled decision to enjoin enforcement of the U.S. military's controversial Don't Ask, Don't Tell policy.

Earlier coverage of the Keller ruling begins here; more from Cohen, here.

Radley Balko on Willingham and Skinner

Balko posts, "Texas Officials Continue Coverup of One Possible Wrongful Execution; Fight To Proceed With Another," at his hit & run blog at Reason.com.

The striking thing about both cases is that Texas government officials are staking out a position of ignorance. That is, they don't want to know if either man is innocent. That's not how they'd phrase it, of course. But in the Willingham case they're thwarting efforts merely to investigate the possibility that Wilingham might have been innocent. In the Skinner case they're fighting a DNA test—which Skinner's attorneys have offered to pay for themselves—that if prosecutors are correct would undeniably establish Skinner's guilt. But there's a chance it could implicate someone else, or complicate their case against Skinner. So they'd rather not test.

Of course in both cases they know that a finding of innocence would further undermine support for the death penalty (which is now under fire even from establishment conservatives). So it's better just not to know.

Perry, Thompson, Switzer, and their cohorts should consider the possibility that their callous indifference in the face of considerable doubt about both men's convictions—and that even after the Willingham fiasco they're still fighting to execute Skinner without being absolutely sure of his guilt—only confirms suspicions that we have a flawed system stacked with perverse incentives, all of which not only encourages the pursuit of convictions at the expense of justice, but then pressures state actors to double down rather than admit to the possibility that they made mistakes.

Put another way, in fighting to keep us all in the dark about Skinner and Willingham's actual guilt, these staunch capital punishment supporters are providing data points for the strongest arguments against the death penalty.

Earlier coverage of the Skinner and Willingham cases, at the links; earlier, Balko, here.

Death, DNA and the Supreme Court

That's the title of an editorial in the Sunday New York Times.  LINK

In an age when DNA technology can help identify the guilty and avoid grave miscarriages of justice, states should not be allowed to block testing of available biological evidence before executing someone.

The Supreme Court heard arguments on Wednesday over a request by Henry Skinner, a Texas death row inmate, for DNA testing of blood, fingernail scrapings and hair found at the scene where his girlfriend and her two sons were murdered in 1993. In March, less than an hour before he was scheduled to die by lethal injection, the Supreme Court granted a stay of execution to consider taking up the matter of the untested evidence.

Seeking to avoid the legal doctrines and deadlines imposed by the Supreme Court and Congress to limit postconviction appeals, Mr. Skinner filed a civil rights action rather than a habeas corpus challenge. Sparring over that mechanistic distinction dominated much of Wednesday’s argument and nearly obscured the larger problem of prosecutors’ selectively testing some DNA evidence but not all in a capital murder case.

Justice Sonia Sotomayor correctly noted that Mr. Skinner’s trial attorney made a strategic decision not to request DNA testing of the contested material in preparation for his trial, likely fearing the testing would further implicate his client.

But to disqualify Mr. Skinner now from obtaining the testing would elevate game-playing over truth-seeking and ignore the need to ensure, best as possible, that the right person has been convicted. Testing such evidence should not be left to a strategic decision; it should be standard in a serious criminal investigation.

Earlier coverage of the Skinner case begins here.

News Coverage of Friday's FSC Meeting

"Texas prosecutor denies showing bias in arson case," is the AP report, via Google News.

A Texas prosecutor accused of bias for describing an executed man as a "guilty monster" defended his comments Friday, while his colleagues on a commission investigating the case said he might have jeopardized the integrity of their inquiry.

Williamson County District Attorney John Bradley said lawyers trying to clear Cameron Todd Willingham's name are using the case to further their effort to abolish the death penalty. He also argued that he has a First Amendment right to state his opinion.

"We are being used, and we should recognize that," Bradley said. "When do we get to respond to those lies? Who is going to correct the record?"

Willingham was convicted in 1992 of capital murder in the deaths of his three daughters and executed in 2004.

Bradley chairs the Texas Forensic Science Commission, which is investigating whether fire investigators committed professional misconduct in determining arson caused the 1991 Corsicana house fire that killed Willingham's daughters. At least nine fire experts have said the fire was an accident, not arson.

Other commission members said Bradley's remarks to The Associated Press, in which he described Willingham as a "guilty monster," raise questions about the impartiality and integrity of their inquiry.

"There is a difference between correcting the record and making the type of statement we are talking about," said Sarah Kerrigan, the laboratory director at the Sam Houston State regional crime lab.

Chuck Lindell writes, "Panel chides Bradley for calling Willingham 'guilty monster'," for the Austin American-Statesman.

Chairman John Bradley's statement, made recently to The Associated Press, could damage the commission's credibility and raises questions about its objectivity, member Sarah Kerrigan said during Friday's commission meeting.

"We have no jurisdiction on guilt or innocence. It really muddies the waters, and it's confusing to the public when we go on record making statements on guilt or innocence," said Kerrigan, a forensic toxicologist and associate professor at Sam Houston State University.

Commission member Garry Adams, with Texas A&M University's College of Veterinary Medicine, urged Bradley to focus on questions of science and be careful when opining on a pending investigation.

And:

Kerrigan steered the conversation toward the propriety of Bradley's statements about Willingham's guilt.

Bradley had been criticizing the motives behind Baird's inquiry when he said: "What they are interested in is finding the poster boy for the abolition of the death penalty. And they want to make Willingham that poster boy. And they chose poorly, because Willingham is a guilty monster."

Bradley said Friday that he formed his opinion after reading the Willingham trial transcripts and investigative records, but added that he is able to separate his opinion from his evaluation of the forensic science involved.

But six of the seven other commission members present at the meeting voiced disapproval or discomfort with the statement from Bradley, who also is chairman of the four-member investigative subcommittee looking into the Willingham case.

"What troubles me is that the public may now become concerned that the commission has lost sight of (its job) to discuss the forensic science involved," said commission member Lance Evans, a Fort Worth defense lawyer.

Adams urged Bradley to rise above distractions from Willingham supporters.

"The state forensic panel criticized their leader for calling Cameron Todd Willingham 'a guilty monster', by Erin Mulvaney for the Dallas Morning News.

Stephen Saloom, policy director at the Innocence Project, the New York-based group that originally filed a complaint about the case, said it is clear that Bradley has lost focus about the purpose of the commission, which is to identify when bad science is tainting the criminal justice system.

Bradley has sought to change the direction of the commission since Perry upended the board last year and appointed new members, just days before it was to hear the Willingham case.

During the meeting, board member Garry Adams, from the College of Veterinary Medicine at Texas A&M University, said the commission has a commitment to do what is right regardless of outside factors.

"We are commissioners, and we need to be forthright, objective and neutral," Adams said. "In order to maintain credibility and objectivity in the state we serve to be careful what we say on our own opinions when we are investigating."

"Texas Forensic Science Commission members at odds over chairman's comment on Willingham," by Dave Montgomery for the Fort Worth Star-Telegram.

The dustup came after the Innocence Project's policy director, Stephen Saloom, wrote commission members criticizing Bradley's remarks and suggesting that the panel consider whether there is "any appropriate action to be taken in the wake of the statement."

Saloom, who attended Friday's meeting, wrote that Bradley's statement "raises questions about the propriety of his leading the Commission's work through this investigation, and perhaps its work as a whole." The statement, he said, is "disturbingly similar" to remarks by Perry, who has called Willingham a "monster."

"‘Guilty monster’ remark lights fire under arson panel," by Allan Turner for the Houston Chronicle.

"I don't need to know whether Willingham moved his car or what kind of husband he was," Kerrigan said after Bradley criticized her for failing to read the entire trial transcript.

In other action, commissioners discussed rescheduling a November session in which they hope to interview fire experts about the case.

They also agreed to drop testimony from Florida fire authority John Lentini, who was a key witness in Thursday's court of inquiry conducted by State District Judge Charles Baird.

Austin's 3rd Court of Appeals issued an injunction Thursday barring Baird from ruling in the case after Navarro County District Attorney R. Lowell Thompson raised concerns over the judge's authority to conduct the hearing.

The court of inquiry, requested by the Innocence Project, potentially could posthumously clear Willingham of the crime and "restore his reputation."

Earlier coverage begins with the preceding post.