The StandDown Texas Project

News Coverage of the Amicus Brief in Green

The amicus brief filed with the CCA is in Adobe .pdf format.

The AP report by Juan Lozano is, "Group wants Texas death penalty hearing to resume," via the Fort Worth Star-Telegram.

An alliance of nearly 60 current and former prosecutors, judges, police chiefs, governors, death row exonerees and crime victims filed a legal brief Wednesday asking Texas' highest criminal court to let an unusual hearing on the constitutionality of the death penalty in the state continue.

The court hearing in Houston was put on hold earlier this month after the Texas Court of Criminal Appeals granted a request by prosecutors to stop it.

The hearing, which was halted after two days of testimony, had been ordered by Kevin Fine, a state district judge who is considering a motion in a capital murder case on whether Texas' death penalty statute is unconstitutional.

Fine is a judge in Harris County, which has sent more inmates to the lethal-injection gurney than any other county in the U.S. Texas has more executions than any other U.S. state.

Lawyers for the Houston man who had asked for the hearing say problems with such things as eyewitness identification and evidence offered by informants have created flaws in death penalty prosecutions in Texas and resulted in a risk that innocent people like their client will be executed.

They said the case against their client, John Edward Green Jr., uses some of the same faulty evidentiary procedures that have resulted in others being wrongly convicted. Green, who is awaiting trial, faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

Prosecutors with the Harris County District Attorney's Office have said the claims being made by Greens' attorneys are well-settled case law and that Fine doesn't have the authority to prevent the state from seeking the death penalty in the case.

In their amicus brief, the group of current and former law enforcement officials, lawmakers, exonerees and crime victims said the hearing was crucial as "confidence in the criminal justice system is shaken when problems go unaddressed."

"The tie that binds this diverse group of citizens together is the profound philosophical and practical concern that the Texas death penalty, as currently applied, unreasonably and substantially risks the conviction and execution of the innocent," wrote Walter Long, the group's attorney.

The group includes former Texas Gov. Mark White; former Maryland Gov. Parris Glendening; former Indiana Gov. Joe Kernan; six former federal prosecutors; five former state and federal judges; 12 current state lawmakers from California, Connecticut, Maryland, Nevada, New Jersey, New Mexico and Texas; current and former police chiefs from Connecticut, New Hampshire, New Jersey and Washington; and six death row exonerees from around the country.

In a statement about the brief, Harris County District Attorney Pat Lykos said the hearing in Fine's court is not "the proper forum for this particular constitutional challenge to the law."

And:

The brief, as well as one by Green's attorneys were filed on Wednesday, the deadline the appeals court gave for motions on whether the death penalty hearing should continue. The appeals court did not set a timetable for when it would make a decision.

Brian Rogers writes, "Ex-Gov. White, others seek to revive death-penalty hearing," for today's Houston Chronicle.

State District Judge Kevin Fine began what was to be a two-week hearing about the death penalty Dec. 7, after he declared the death penalty unconstitutional in March, then rescinded his ruling and decided to hear evidence before making his decision.

Two days into that hearing, the Court of Criminal Appeals agreed to reconsider a motion by the Harris County District Attorney's Office to stop the hearing and halted the proceedings until further notice.

Wednesday was the last day to file briefs on whether the hearing should take place.

Earlier coverage begins with the post, "Latest Development in the Green Case."

Latest Development in the Green Case

Attorneys for John Green have issued a news release, "Unusual Alliance of Former Governors, Legislators, Law Enforcement, Former Judges and Prosecutors, Victims and Exonerees Urge Texas Court of Criminal Appeals to Allow Death Penalty Hearing to Proceed:  Nearly Sixty Prominent Individuals File Amicus Brief Citing Concerns with Wrongful Convictions in Texas Capital Cases." 

The amicus brief filed with the CCA is in Adobe .pdf format.

Here's the text of the news release:

Today, a diverse group of nearly sixty prominent individuals from Texas and across the country, including former governors, legislators, law enforcement, former judges and prosecutors, victims, Innocence Network projects, and death row exonerees, filed an amicus brief calling on the Texas Court of Criminal Appeals (CCA) to allow Harris County District Court to continue hearing evidence in Texas v. Green. The unusual alliance submitted the brief (attached) to bring to the attention of the Court their shared concern over the risk of wrongful convictions in death penalty cases. 
 
Earlier this month, the district court had begun a serious examination of the substantial risk of wrongful conviction in the John Edward Green capital case. Two days into the hearing, on December 7, the CCA agreed to reconsider a motion by the Harris County District Attorneys Office and halted the proceedings.
 
 “Wrongful convictions and the problems that underlie them are widely recognized and documented,” the co-signers of the amicus brief state. “[U]nless Texas addresses the proven causes of wrongful convictions, including eyewitness misidentification, faulty forensics, unreliable informant evidence, among other documented factors, the state runs the grave risk of executing an innocent person.”
 
The signatories include: three former governors, including Gov. Mark White (TX), Gov. Parris Glendening (MD) and Gov. Joe Kernan (IN); former prosecutors and law enforcement, including former Dallas Assistant District Attorney James A. Fry, who prosecuted an innocent man exonerated by DNA testing after 27 years, and former Texas Department of Public Safety Commander J. Patrick O’Burke; crime victims including Michele Mallin, who mistakenly identified Timothy Cole, who was posthumously pardoned this year by Governor Rick Perry; legislators, including Texas State Senator Rodney Ellis; and death row exonerees including Anthony Graves, who was freed from Texas’ death row in October after new evidence proved his innocence.
 
The brief is also co-signed by current and former attorneys general, police chiefs, judges and prosecutors from Texas and states across the country (the complete listing of signatories is in the attached brief).
 
Before the CCA stayed the hearing on December 7, the district court was prepared to hear testimony regarding the cases of Cameron Todd Willingham and Claude Jones, both executed for crimes that new evidence suggests they did not commit.
 
The brief cites a nationwide trend away from the death penalty due to concerns about wrongful convictions. The signatories are concerned that “confidence in the criminal justice system is shaken when problems go unaddressed,” and they urge the CCA to allow the district court hearing to continue.
 
“[We] submit that the critical hearing that had been evaluating the accuracy and fairness of the Texas death penalty be continued. The trial court is the appropriate venue for hearing live testimony and gathering evidence. [We] petition this court to ensure that the public is informed by continuing this hearing and thereby providing information access to the public about the actual operation of the death penalty.”
 
Since 1976, 138 people have been exonerated from death row nationwide. Twelve of them were in Texas. Furthermore, of the first 250 DNA exonerations (in capital and non-capital cases), 40 were in Texas. The Texas v. Green hearing would allow attorneys for Mr. Green to continue to present expert testimony and evidence regarding the substantial risk of wrongful conviction and wrongful execution in his case.

Earlier coverage begins with the post, "Clarence Brandley on the Harris County Hearing."

Additional News Coverage of 3rd Court Ruling on Wilingham Court of Inquiry

 As noted yesterday, the opinion and dissent are available in Adobe .pdf format.

"Appeals court rebukes Baird in Willingham case," is the title of Steven Kreytak's report in today's Austin American-Statesman.

An Austin appellate court ruled Tuesday that state District Judge Charlie Baird abused his discretion in handling an inquiry into the case of Cameron Todd Willingham, a Corsicana man whose lawyers contend that he was wrongfully executed in 2004.

The 3rd Court of Appeals found that Baird, who sits in Travis County, should not have held a hearing about the case in October after Navarro County District Attorney R. Lowell Thompson, whose office prosecuted Willingham, accused Baird of bias and asked him to recuse himself.

"Judge Baird abused his discretion by failing to either recuse himself or refer the motion to the presiding judge of the administrative judicial district," Chief Justice Woodie Jones wrote in the court's opinion.

In e-mails, Baird declined to comment on the ruling other than to say that he would forward Thompson's recusal motion to state District Judge Billy Ray Stubblefield, who sits in Williamson County and is the administrative judge for the region that includes Travis County.

But it is likely that the motion will not be decided by the time Baird leaves the bench at the end of the year to enter private practice. The case ultimately could fall to Baird's successor in the 299th District Court, former Assistant District Attorney Karen Sage said. She declined to comment Tuesday.

In a statement, Barry Scheck, who represents Willingham's family and is co-director of the New York-based Innocence Project, said he was disappointed.

"We feel this is a matter of extreme importance, particularly to the Willingham family and to the justice system in Texas," the statement said. "We are determined to find a way to get an adjudication on the merits in the Texas courts to restore Willingham's reputation."

At the Texas Tribune, Brandi Grissom posts, "Appeals Court Says Willingham Judge Abused Discretion."

The three-judge panel today ruled that in response to Thompson's motion, Baird should have either recused himself or referred the motion to the presiding judge of the administrative judicial district. The court granted Thompson's motion to recuse Baird and postponed the court of inquiry proceedings until the judge complies with the motion.

Mitch Mitchell writes, "Travis County judge ordered to reconsider recusal in Willingham inquiry," for the Fort Worth Star-Telegram.

Others reviewing the appeals court's decision expressed disagreement more forcefully. "The bias claims that are presented in this case are ridiculous," said Cory Session, brother of Tim Cole, the only Texas inmate to receive a posthumous exoneration and pardon.

Thompson's motion states on the one hand that Baird supported Willingham's conviction and execution as an appeals judge and on the other hand opposes the death penalty because he received an award from an anti-death-penalty group, Session said.

Thompson cannot credibly argue both things in the same motion, he said.

"There is no way to tell whether Baird supports or whether he opposes the death penalty," Session said. "Baird has received awards from both defense and prosecution groups. No one ever said he was biased during the Tim Cole case."

Session also argued that the circumstances surrounding the Willingham and Cole cases are very similar.

"It's troubling that they would issue this type of ruling when the precedent has already been set in the Tim Cole case," Session said. "I wonder how they would differentiate what happened in the Tim Cole case with what could possibly happen in the Willingham case."

And:

On Jan. 7, the state Forensic Science Commission is expected to continue its look into the quality of the fire science that helped convict Willingham. Experts who have testified before the commission, as well as commission member Nizam Peerwani, the Tarrant County medical examiner, have said that the fire science used during the Willingham trial was faulty.

The AP report is, "Appeals court: Judge was wrong in Texas arson case," by Jeff Carlton.  It's via the Washington Post.

The recusal issue must be resolved before the hearing into Willingham's possible innocence can continue. A complicating factor is Baird's retirement at the end of the year. The judge did not immediately respond to a message left by The Associated Press.

The ruling is the latest setback for anti-death penalty advocates trying to prove Willingham's innocence. If he were exonerated, it would mark the first time an official in the nation's most active death penalty state has formally declared someone was wrongfully executed.

Last month in a different case, a DNA test on a single hair cast doubt on the guilt of a Texas man who was put to death in 2000 for a liquor-store murder. The hair had been the only piece of physical evidence linking Claude Jones to the crime scene. The DNA does not prove Jones' innocence but does indicate there was not enough evidence to convict or execute him under Texas law

"The clock is ticking and it is running out," said Barry Scheck, the co-director of the New York-based Innocence Project, a legal center specializing in wrongful conviction cases. "The bottom line is we have been frustrated by an inability to get adjudication on the merits of these serious issues."

"Hearing delayed on possible mistaken Texas execution," is the AFP report, via Google News.

A court hearing to determine whether a man executed in 2004 was in fact innocent faced further delay when a Texas appeals court ruled the judge overseeing the case should have recused himself.

Cameron Todd Willingham's family is seeking to have his name cleared amid claims that the evidence arson investigators used in his 1992 trial was based on flawed science.

If the court exonerates Willingham of killing his three daughters he will be the first person officially declared innocent after being executed in the modern era of US capital punishment.

His family petitioned State District Judge Charlie Baird to clear his name and reputation.

Baird is known for exonerating Timothy Cole, who died in prison while serving a 25-year sentence after being wrongly convicted of being the "Texas Tech rapist."

Another man confessed to the rape after Cole's death and DNA evidence proved that claim to be true.

Earlier coverage begins with the post, "Appeals Court Rules in Willingham Court of Inquiry Recusal Issue," from yesterday.

All Willingham coverage is available through the Todd Willingham 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.

More on British Execution Drug Supplies

"US execution drugs supplied secretly by British companies," is the title of Mark Townsend's report for the Observer.  It's via the Guardian.

British companies have secretly supplied two previously undisclosed lethal injection drugs for executing American prisoners, provoking calls for an immediate export ban on the whole cocktail of drugs used on death row.

Documents from American authorities reveal that potassium chloride and pancuronium bromide have been exported. Until now it was thought that only one execution drug, sodium thiopental, was being supplied by a British company. When news of that chemical's export to America surfaced, it caused such condemnation that the business secretary, Vince Cable, unveiled new export controls on the drug forbidding its use in executions.

Now new documents from the California Department of Corrections and Rehabilitation (CDCR) show that at least one British firm has been providing it with all the drugs it uses as part of a three-drug cocktail in lethal injection executions.

The UK's Morning Sun reports, "Lethal drugs secretly shipped to California," by Paddy McGuffin.

British firms have been secretly exporting three drugs used in lethal injection executions to the US, legal charity Reprieve revealed today.

A massive batch of Sodium Thiopenthal, one of a cocktail of drugs used in executions, was exported to California before Business Secretary Vince Cable imposed a ban on the lethal substances.

The state purchased 512g of the chemical - enough to execute over 80 people.

Mr Cable was forced to impose the ban after Reprieve was allowed to seek a judicial review of his refusal to place an export control order on the chemical.

The charity, along with Leigh Day solicitors, had brought legal action against the British government over its failure to prohibit the export of the drug, which was used to execute an Arizona prisoner.

They argued that by not prohibiting the export Britain was failing to live up to its international obligations and public position of opposing the death penalty.

Earlier coverage of the international shipments begins at the link.

Another Willingham Case Issue

Peggy Fikac wrote, "Perry keeps clemency report secret," for the Saturday edition of the Houston Chronicle.

A Travis County state district judge has denied a motion by Hearst Newspapersto force Gov. Rick Perry's office to hand over a memorandum and supporting documents he received before denying a stay of execution in the high-profile case of Cameron Todd Willingham.

Willingham was executed in 2004 for the 1991 deaths of his three daughters in a fire. Lawyers for the New York-based Innocence Project, citing modern forensics, have said the blaze cannot be proven to have been arson.

In response to a request from Hearst's Houston Chronicle earlier this year, Perry's office refused to release the clemency report, saying it was protected from disclosure under the law. That prompted the news organization's lawsuit.

Hearst asked for the memo and other documents in pre-trial motions.

The state's attorney general's office, representing Perry, said the memo was protected under attorney-client privilege, and that the supporting documents from the Texas Board of Pardons and Paroles were confidential under the law.

The article notes that the newspaper is evaluating whether to appeal the ruling.

Earlier coverage of the open records issue is in the post, "Peggy Fikac's Latest Column."  Willingham coverage starts with, "Appeals Court Rules in Willingham Court of Inquiry Recusal Issue," posted earlier today.

All Willingham coverage is available through the Todd Willingham index.

Appeals Court Rules in Willingham Court of Inquiry Recusal Issue

Jordan Smith posts, "Third Court Rules in Willingham Case," at the Austin Chronicle.

The Third Court of Appeals has ruled that the region's presiding administrative judge must consider whether to grant recusal of Travis Co. District Judge Charlie Baird in case of executed inmate Cameron Todd Willingham.

In October, Baird heard testimony of fire experts, brought by lawyers for Willingham, during a proceeding seeking to posthumously clear Willingham's name. Baird was also asked to consider whether cause exists to initiate a court of inquiry into the actions (or inaction) of state officials prior to Willingham's death. At issue there is whether state officials (likely the State Fire Marshals Office and Gov. Rick Perry) relied on faulty science (and ignored new evidence) to conclude that Willingham set the 1991 fire at his Corsicana home that killed his three young children.

Navarro Co. District Attorney R. Lowell Thompson had sought to recuse Baird, who he said he believed couldn't be objective on the matter (because he had received an award from an anti-death penalty group, or alternately, because he'd once ruled in favor of upholding Willingham's death sentence while Baird was serving as a justice on the Court of Criminal Appeals). Baird heard his claim but ruled that Thompson was not a party to the action brought by Willingham's surviving relatives.

And:

In it's opinion, written by Chief Justice Woodie Jones and Justice Bob Pemberton (Justice David Puryear also considered the case and filed a dissent to the two-judge majority ruling), the court concluded that Baird should have recused himself or refer that motion to the region's presiding judge, Williamson County's Billy Ray Stubblefield, for consideration.

In dissent, Puryear concluded that although the hearing was unique, that didn't mean that it did not comport with the law; Baird should have been allowed to conclude the matter, he wrote.

The opinion and dissent are available in Adobe .pdf format.

Coverage of the Court of Inquiry at the link.  More recent Willingham coverage begins with this post.

All Willingham coverage is available through the Todd Willingham 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.

I want to call attention to some recent changes in the Austin Chronicle's news coverage.  Our beloved local, independent alt-weekly, has increased timely news updates through its news blog.  They're doing an excellent job, as this news break demonstrates.

Von Drehle on the DPIC Report

I want to single out David Von Drehle's post on the DPIC report for Time, "Death Penalty Use and Support Near Record Lows, Report Finds."

Perhaps no statistic better illustrates the decline in the use of the death penalty than the fact that no death sentences — zero — were imposed by Virginia's courts in 2010. The commonwealth is a bastion of capital punishment, second only to Texas in the frequency of executions. Missouri, which ranks fifth in the number of executions in the modern era, also sent no new inmates to death row.

Experts offer a number of explanations for the diminished use of the death penalty in the United States. DPIC's annual report, published on Tuesday, (see www.deathpenaltyinfo.org), points to at least four factors:

And, an additional excerpt from the fourth factor:

Uneven, and unpredictable, application: The use of the death penalty varies widely by region. Three out of four executions in 2010 took place in the South. California once again led the nation in new death sentences — and once again went all year without a single execution. At year's end, the death row population in the Golden State hovered around 700. Florida, with some 400 inmates on death row, carried out just one execution in 2010. Pennsylvania, with some 220 death row inmates, executed none.

Nationwide, according to DPIC, some 3,260 prisoners were sentenced to die as the year came to a close. Hundreds have been on death row more than 25 years. The average time spent on death row by the 46 inmates executed in 2010 was 14 years.

One other factor may do more than any of the rest to explain the declining hold of capital punishment on the American justice system: The steep decline in violent crime. Preliminary statistics from the FBI indicate that the murder rate for the first half of 2010 once again fell sharply, dropping by more than 7%.

If, as the DPIC annual report suggests, Americans are more willing to consider alternatives to capital punishment, the fact that they are undeniably safer may be the best explanation of all.

Coverage begins with the post "News Coverage of the DPIC Report,"  The DPIC report is, DPIC has issued The Death Penalty in 2010: A Year End Report.

More from Von Drehle at the post, "Debate Over Capital Punishment."  He's also the author of Among the Lowest of the Dead: The Culture of Capital Punishment.

News Coverage of the DPIC Report

"Death Penalty Down in U.S., Figures Show," is John Schwartz' report in today's New York Times.

States are continuing a trend of executing fewer prisoners and juries are wary of sentencing criminal defendants to die, according to year-end figures compiled by a group that opposes the death penalty.

The 46 executions in 2010 constituted a nearly 12 percent drop from the previous year’s total of 52, according to the group, Death Penalty Information Center, which produces an annual report on execution trends. The overall trend shows a marked drop when compared with the 85 executions in 2000.

Jurors, too, show a continuing preference for the alternative of punishing criminal defendants with sentences of life without parole. Juries handed out 114 death sentences in 2010, slightly higher than the 112 death sentences last year, and 50 percent fewer for the current decade than in the 1990s — before the widespread availability of life without parole sentences for juries in capital cases.

“There’s just a whole lot more concern about the accuracy of the death penalty, the fairness and even the costs — all are contributing,” said Richard C. Dieter, the author of the report and the executive director of the center, which is in Washington. The availability of the alternative to the death penalty, Mr. Dieter said, also means that “prosecutors know it’s going to be a harder sell and are seeking it less.”

The states continue to condemn far more prisoners to death than they actually execute.

There are 3,261 people on death row in the United States; California has the largest population, with 697, while New Hampshire and Wyoming have one apiece. A majority of Americans support the death penalty, with 64 percent of those surveyed by Gallup in October 2010 favoring it and 29 percent opposed.

"US executions drop by 12 percent in 2010," is the AP post, via Google News.

The number of executions in the United States dropped 12 percent in 2010, and the number of people sentenced to die is nearing historic lows, a report from an anti-capital punishment group says.

The Death Penalty Information Center attributed the reductions to changing attitudes toward capital punishment, but acknowledged there have also been problems with the availability of chemicals used in lethal injections.

"Whether it's concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010," said Richard Dieter, the center's executive director and author of the report.

And:

Texas executed the largest number of people by far in 2010, but also showed the biggest drop in inmates put to death. There were 17 executions this year in Texas, compared with 24 in 2009. The 2010 total is the state's lowest since 2001.

The group's report attributed the Texas drop to "the state's adoption of a sentence of life without parole in 2005, changes in the district attorneys in prominent jurisdictions such as Houston and Dallas, and the ongoing residue of past mistakes."

There have been 12 exonerations of death row inmates in Texas since 1978. Dieter testified at a Texas judge's hearing on the constitutionality of the death penalty earlier this month.

"Fewer U.S. executions in 2010," by Maria Glod for the Washington Post.

Despite the high-profile execution of a woman, the first in the United States since 2005, the number of death sentences carried out nationwide decreased in 2010 compared to the previous year, according to a new report by the District-based Death Penalty Information Center. There were 46 executions in 2010 compared to 52 in 2009.

The report also projects that 114 death sentences will be handed down by the end of the year, making it among the fewest since the death penalty was reinstated in 1976.

"Texas again leads nation in executions; Ohio a distant second," by John Gramlich at Stateline.

Officially, 35 states retain the death penalty, but far fewer use it with any regularity, as a new report from the Death Penalty Information Center, an anti-capital punishment research and advocacy group, makes clear.

In 2010, only seven states — Alabama, Georgia, Mississippi, Ohio, Oklahoma, Texas and Virginia — executed more than one prisoner, the report finds.  Of those seven states, Texas was far and away the most active, executing 17 inmates in 2010, compared with eight for Ohio, the second-busiest state. Alabama was third with five executions.

"Death penalty less common in US now than in 1990s, report finds," by Warren Richey for the Christian Science Monitor,

Thirty-five states and the federal government have laws supporting capital punishment. In 2010, 12 states carried out executions. Texas conducted 17 executions, Ohio 8, Alabama 5, Virginia, Oklahoma, and Mississippi 3 each, Georgia 2, and one in Florida, Louisiana, Arizona, Utah, and Washington, according to the DPIC report.

Roughly 14,000 murders are committed in the US each year.

The death row population in 2010 is 3,261, down from 3,297 last year. The average capital case in the US takes 14 years from death sentence to execution.

"Executions continue steady nationwide decline," by Bill Mears at CNN.

While the issue of capital punishment can generate emotional political and public debate, the center's report suggested practical reasons for the decrease in executions.

The capital appeals process can be expensive, causing many lawmakers to re-examine the financial consequences of pursing death sentences in a weakened economy, according to the report. Illinois officials reported $100 million had been spent statewide in the past seven years on death penalty prosecutions, despite not executing anyone in 12 years.

"Whether it's concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010," said Richard Dieter, the center's executive director who wrote the report.

"Ohio only state to execute more in 2010," by Alan Johnson for today's Columbus Dispatch.

Ohio continued to buck a national trend on the death penalty this year, ranking second in the nation to Texas in the number of executions.

Ohio had eight men lethally injected, making it the only state to increase executions in 2010, according to the annual report by the Death Penalty Information Center, a nonprofit, nonpartisan organization in Washington, D.C.

The total would have been higher had Gov. Ted Strickland not spared the lives of two convicted killers: Kevin Keith of Crawford County and Sidney Cornwell of Mahoning County.

Strickland, who will leave office Jan. 9, said yesterday that he feels "terrible" that Ohio was the only state in which executions rose this year. "It's one of the responsibilities of governing that I won't mind giving up," he said.

Earlier coverage of the DPIC report, The Death Penalty in 2010: A Year End Report, in the preceding post.  Next, one more item on the report.

Death Penalty Information Center Issues 2010 Report

DPIC has issued The Death Penalty in 2010: A Year End Report, in Adobe .pdf format, today.

The news release announcing the report is titled, "DPIC's Year End Report: Executions Down 12% Nationwide, 29% in Texas; Death Sentences Near Historic Lows.  2010 Election Results Confirm Poll Finding Majority Favor Alternative Punishments and Will Support Politicians Who Vote for Repeal of the Death Penalty."

The country experienced a 12 percent decrease in executions in 2010 compared to 2009 and a more than 50 percent drop compared to 1999, according to a report released today by the Death Penalty Information Center (DPIC). Texas had 29 percent fewer executions in 2010 than the previous year.

DPIC projects that the number of new death sentences will be 114 for 2010, remaining near last year's number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.

"Whether it's concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010," said Richard Dieter, DPIC's Executive Director and the report's author.

Although the recent elections brought a dramatic shift in political alliances, candidates who questioned the death penalty were elected across the country, including governors in California, Connecticut, Maryland, Massachusetts, New York, Kansas, and Illinois.

For example, Jerry Brown and Kamala Harris were elected as governor and attorney general of California, despite heavy TV ads attacking them as death penalty opponents. Daniel Malloy, who opposes the death penalty, was elected governor of Connecticut in the midst of a high-profile capital trial. As its new governor, Kansas elected conservative Sam Brownback, who has expressed moral reservations about capital punishment.

"This year's election results confirm polling data that suggests opposing the death penalty is an acceptable position for elected officials and candidates. Voters hold other issues, such as the economy and jobs, as much higher priorities," Dieter said.

In a poll conducted by Lake Research Partners this year, there was strong bi-partisan support for doing everything possible to prevent the execution of innocent people: at least 80 percent of Republicans, Democrats, Conservatives, Moderates and Liberals all supported that premise.

In the same poll, a clear majority (61 percent) of the public favored some form of life imprisonment and only 33 percent supported the death penalty as the punishment for murder. A plurality of voters in death penalty states said it would make no difference in their vote if a representative supported repeal of the death penalty. A majority (62 percent) said either it would make no difference (38 percent) or they would be more likely to vote for such a representative (24 percent).

In Texas, evidence emerged of critical errors in two cases where executions had already occurred (Cameron Willingham and Claude Jones). In addition, Anthony Graves was exonerated from Texas' death row and the prosecutor acknowledged, "We found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder … He is an innocent man."

Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Since the death penalty was reinstated in 1976, 82 percent of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.

(The Mississippi Attorney General has requested an execution to be set for December 29, but the court has not responded to this request, and it appears unlikely to occur. This execution, if it were to occur, would change the total number of executions in 2010.)

Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. DPIC was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for the media, and serves as a resource to those working on this issue. DPIC is widely quoted and consulted by all those concerned with the death penalty.

The next post will link to news coverage.  Last week, the Texas Coalition to Abolish the Death Penalty issued a report on Texas' use of capital punishment in 2010.

More on the cases of Anthony Graves, Claude Jones, and Todd Willingham at the links.

Monday

I will be traveling Monday. Posts will resume later today.

Friday

I'll be traveling much of Friday.

Oklahoma Prepares for Substitute Drug Execution

"Okla. Set to Execute Inmate With Substitute Drug," is the titel of Sean Murphy's AP report, via ABC News.

A man on Oklahoma's death row for the 2001 slaying of his cellmate is believed to be the first U.S. inmate set to be executed using a sedative commonly used to euthanize animals.

John David Duty is set to die at 6 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. A federal appeals court earlier this week upheld a judge's ruling that allows the state to substitute pentobarbital for sodium thiopental, an anesthetic normally used in the state's lethal injection formula.

A nationwide shortage of sodium thiopental led Oklahoma to alter its three-drug cocktail.

Attorneys for Duty, 58, and two other death-row inmates challenged the state's decision to use pentobarbital, arguing during a November federal court hearing that it had not been done before in executions and could be inhumane.

But one anesthesiologist whose videotaped deposition was played in court testified that the 5,000 milligrams of pentobarbital the state plans to use is enough to cause unconsciousness and even death within minutes.

The 10th U.S. Circuit Court of Appeals on Tuesday upheld a federal judge's ruling against the inmates.

Experts testified at the November hearing that no other U.S. state uses pentobarbital during executions. Oklahoma Department of Corrections spokesman Jerry Massie and the head of a Washington, D.C.-based group that has been critical of capital punishment both said in interviews Wednesday that they believed Duty would be the first inmate in the country put to death using the drug.

"In all my research, I have not seen that (pentobarbital) has been used before in this context,'" Richard Dieter, executive director of the Death Penalty Information Center, said in a telephone interview. But, he noted, "Some states don't say exactly what drugs are used and have kept that out of the public eye.'"

And:

The Federal Public Defender's office declined comment on whether any last-minute appeals were in the works.

Earlier coverage of Oklahoma's lethal injection drug switch is at the link.

How Siegler Unmade Case

That's the title of Harvey Rice's report in today's Houston Chronicle.  It's subtitled, "She and a colleague independently concluded that Anthony Graves was no killer."

Veteran prosecutor Kelly Siegler dreaded her meeting with the family of a grandmother and five children savagely slain nearly two decades ago. The news she was bringing them would not be welcome.

"I went by myself to tell them that things weren't going according to plan, that (the original prosecutor) had done some things, that it wasn't looking good," Siegler said, recalling her Oct. 15 meeting at a gathering of the Davis family in Houston. "I drove out there, and I tried to figure out ahead of time how to explain, knowing that for 18 years they thought this man had killed their mother and their babies."

As they pored over evidence and interviewed more than 50 witnesses in the case of Anthony Graves, incarcerated for 18 years before his exoneration and release two months ago, Siegler and investigator Otto Hanak found themselves in unfamiliar territory.

Siegler, who had tried many capital murder cases as a Harris County assistant district attorney, and Hanak, a state trooper and Texas Ranger for 28 years, were deeply embedded in the criminal justice establishment. But each new development in their investigation pointed to the conclusion that they reached independently: Graves was innocent, the victim of a prosecutor who had manufactured evidence, misled jurors and elicited false testimony.

"In all these years I've been in this business, I never thought I would be party to saving someone who was on death row," Hanak said.

Washington-Burleson County District Attorney Bill Parham had hired Siegler in February as a special prosecutor to retry Graves after a federal appeals court overturned his capital murder conviction. The appeals court found that the original prosecutor, former District Attorney Charles Sebesta, had withheld two statements from the defense and had elicited false testimony.

Earlier coverage of the Graves' exoneration begins with today's post, "Life After Death."  More on Siegler's investigation in Pamela Coloff's "Innocence Found," from Texas Monthly.

Clarence Brandley on the Harris County Hearing

"Lykos was wrong to halt hearing into death penalty," is the title of his OpEd in today's Houston Chronicle.  Brandley was exonerated and freed from Texas death row in 1990.  He is a member of Witness to Innocence, a national organization composed of, and assisting, men and women exonerated from capital sentences.

When Pat Lykos ran for the office of Harris County District Attorney, she promised that there would be a new day in the criminal justice system. However, she recently proved that she's just another part of the same good ol' boy system that wrongfully sentenced me to death.

I spent nine years, five months, and 23 days in prison, most of them on death row waiting for my date with the executioner. I went through two trials and received several execution dates before I was found to be innocent of the murder of Cheryl Ferguson, a 16-year-old high school student in Conroe. My story is similar to the stories of 137 other exonerated death-row prisoners across the country, including 12 Texans who were found to be guilty beyond a reasonable doubt before their exonerations.

And:

Since my exoneration nearly 20 years ago, I've been waiting for a simple apology from the state of Texas.

Last week, Harris County state District Judge Kevin Fine began a historic hearing on a pretrial motion to declare the Texas death penalty statute unconstitutional as applied because of a substantial risk that innocent people have been, and will continue to be, sentenced to death and even executed. However, in a rare move, Lykos ordered the prosecutors to not participate and "stand mute" during the legal proceedings. They later successfully petitioned the Texas Court of Criminal Appeals to halt the hearing.

A thorough review of Texas' death penalty system is long overdue. Lykos is obviously apprehensive about the facts being presented in this hearing. She must know that they will show how easy it is to be wrongfully convicted.

For every nine people executed in the United States since the death penalty was reinstated, one person has been exonerated. The most recent death-row exoneration was Anthony Graves, who was released in October after spending 18 years in prison for a crime he did not commit.

I was one of the lucky ones. No one knows how many of the more than 300 people awaiting execution on Texas' death row are innocent of the crimes for which they were convicted. Even more disturbing, despite what Gov. Rick Perry and former Gov. George W. Bush might claim, no one can definitively say how many of the 464 people executed in Texas since 1982 were innocent.

Clarence Brandley's wrongful conviction and exoneration was the topic of the 1991 book White Lies:Rape, Murder, and Justice Texas Style, writtein by Nick Davies.

Earlier coverage of the Harris County hearing in the Green case begins at the link

Lufkin Daily News Editorial

"Texas sees its death sentences, executions drop, for good reason," is the title of the editorial in today's Lufkin Daily News.

Texas juries this year have sentenced eight convicted killers to death, according to a Houston Chronicle story. That’s the lowest number since 1976, when the Supreme Court reinstated capital punishment. Likewise, Texas executed just 17 people this year, its lowest total since 2001.

Except in cases where justice isn’t being served — and there are several, including some in Deep East Texas — we view those falling figures as a good thing.

We do believe the ultimate punishment is an appropriate sentence for some heinous offenders, and that it shouldn’t take decades to carry out that sentence for those who deserve it. But the reasons for the drop in both death sentences and the executions themselves are legitimate ones.

First and foremost, the 2005 Texas law that let juries select life without parole as a possible sentence was a necessary change. It’s an effective penalty, in that it guarantees an offender no longer will be a danger to the public, and it’s more cost-effective at the county level because of the incredible expense that comes with pursuing the death penalty and making it stick. Also, improved DNA testing has called into question the guilt of multiple people on death row, making our society much less comfortable with taking someone’s life without the most clear-cut evidence.

Something else has helped lower the state’s death cases, however — Texas is seeing its recidivism rate drop. That’s a wonderful development, and it’s happening in large part because of official’s efforts at the county level. Drug courts have worked well in that regard in East Texas, and we were glad to see Angelina County on Tuesday approve its participation in a program that tries to help people find work when they are released from prison.

Earlier coverage of the drop in death sentences and executions begins at the link.  The information is from the TCADP report, Texas Death Penalty Developments in 2010: The Year in Review, issued earlier this week.

Life After Death

That's the title of Michael Hall's editorial column Behind the Lines in the January issue of Texas Monthly.  It's subtitled, "Why we need a moratorium on the death penalty in Texas."  Here are excerpts from this must-Read:

It’s time to halt executions in Texas. The flaws in our death penalty system have become too obvious to ignore any longer. Five times in the past seven years we’ve learned about a person wrongly convicted and taken off death row or a person convicted on bogus forensic science—and executed. It’s clear: Until the day comes when we are able to guarantee that our system will never put innocent men and women to death, we can’t continue to use a form of punishment that is irreversible. It’s time for Texas to put a moratorium on capital punishment.

This is a law-and-order state, and most citizens support executing murderers. But what about executing people who haven’t done anything wrong? The new Legislature that convenes this month is the most conservative in history, with 22 freshman lawmakers, many of them tea party–inspired folks who promised their constituents that they were going to Austin to grapple with the tyranny of the government. On the campaign trail, these men and women railed against the ineptitude and interference of government in general, about the way the state tramples on the lives of its citizens. “Don’t tread on me!” they cried. Fine, then. Let’s look at recent history, which has offered some appalling examples of the state’s treading all over its citizens.

And:

As the Graves case makes clear, we need to pay attention to the conduct of our district attorneys. They’re usually among the most powerful people in any county, and at present there are hardly any criminal or civil penalties for prosecutors who engage in misconduct. We need to create real incentives for our DAs to seek justice instead of convictions. This won’t be easy. Sebesta still claims he did nothing wrong—as did the men who prosecuted Adams, Cook, and Willis. They were the good guys fighting the good fight, and if sometimes they got zealous, well, who can blame them? They’re only human.

Which brings us to the heart of the problem. Can the criminal justice system, a system conceived and operated by humans, ever be completely free of error? The common theme in the cases of Graves, Willis, Cook, and Adams (and Willingham and Jones) is clear: People make mistakes, and so do the institutions they work for. We know this intuitively. We see it every day, when, say, the postman mistakenly delivers our neighbor’s mail or when officials at a football game screw up a call. We can afford these kinds of mistakes. We walk the letter next door. We scream at the TV. But it’s different when we’re dealing with capital punishment. We can afford the mistaken holding penalty. We can’t afford the mistaken death penalty. It’s time to halt executions in Texas.

Earlier coverage of Texas Monthly's call for a moratorium begins with this post.

Hall has written a number of Texas Monthly articles on criminal justice in Texas; noted at:

• More on Scent Lineups, Junk Science, & Science Based Forensics
• Memo to Kay
• The Judgment of Sharon Keller
• The Exonerated
• Death Letters

More on Anthony Graves' exoneration at the link, including links to Pamela Colloff's two articles on the Graves' case, noted in the posts, "Innocence Lost," and, "Innocence Found."  As I've noted before, Michael Hall and I are not related.

Montana Supreme Court Chooses Orderly Lethal Injection Challenge

"Montana Supreme Court upholds stay of execution pending inmate's challenge," is the AP report via the Missoulian.

The Montana Supreme Court on Tuesday upheld a stay of execution for a Canadian man as the death-row inmate challenges the state's method of lethal injection.

The justices had been asked to intervene after two lower-court judges issued conflicting orders regarding the execution of Ronald Allen Smith.

District Judge John Larson set a Jan. 31 execution date for Smith just two days after District Judge Jeffrey Sherlock ordered a stay of execution while Smith's constitutional challenge proceeds.

Larson presides over the criminal case against Smith, now 53, who pleaded guilty in 1983 in the fatal shooting of Harvey Mad Man and Thomas Running Rabbit near East Glacier the year before.

Sherlock is overseeing the inmate's civil challenge of the state's execution methods.

Larson asked the Supreme Court to void Sherlock's stay of execution, saying it infringed on Larson's exclusive jurisdiction over the case and that he couldn't be bound by another district judge's order.

State attorney Chris Tweeten, responding on behalf of Sherlock, said Sherlock's order does not try to overturn or change the death sentence or prevent Larson from setting an execution date.

The state Supreme Court agreed with Tweeten.

"We conclude that neither court is acting under a mistake of law or causing a gross injustice," the Supreme Court decision reads.

"While we understand Judge Larson's concerns over the prospect of conflicting orders, the fact is that Mr. Smith's execution has - over the past 15 years - been stayed by various state and federal courts while those courts weighed the propriety of Mr. Smith's conviction and sentence," the justices added.

And:

Ronald Waterman, Smith's attorney, argues that lethal injection is cruel and unusual punishment, and that there is no approved place for executions at the state prison. The trailer typically used for executions was moved earlier this year to make way for an addition.

"Our position had been and will continue to be that this is an important constitutional issue that needs to be addressed by the courts," Waterman said Tuesday. "The Department of Corrections, we believe, will follow that injunction and we won't see any further activities about the execution until Judge Sherlock's order is satisfied."

Today's Montreal Gazette reports, "Canadian's stay of execution upheld," by Postmedia News.

Montana's top court has upheld a controversial stay of execution ordered last month for the only Canadian on death row in the United States, Alberta-born killer Ronald Smith.

The stay, granted on Nov. 1 by District Court Judge Jeffrey Sherlock, stipulated that Smith's death sentence should not be carried out before the resolution of a lawsuit filed by Smith and the American Civil Liberties Union over problems with Montana's lethal injection system.

But two days later, District Court Judge John Larson ignored Sherlock's order and scheduled Smith's execution for Jan. 31. The conflict prompted Larson to seek a ruling from the Montana Supreme Court on which judge's order should prevail.

In submissions on the matter filed last week, both Smith's lawyers and the state's attorney general -while on opposite sides of the lethal-injection lawsuit -argued that the suit should be resolved before the execution is carried out.

Earlier coverage begins with the post, "Montana's Lethal Injection Challenge."

10th Circuit Panel OKs Oklahoma Execution Drug Switch

The 10th Circuit ruling in Pavatt v. Matthews & Duty is in Adobe .pdf format.

Today's Oklahoman reports, "Appeals court rejects convicted killer’s challenge to Oklahoma execution method,"by Robert Boczkiewicz.

An appeals court on Tuesday allowed Oklahoma to proceed with executions, including one Thursday, using a new lethal injection drug.

The 10th U.S. Circuit Court of Appeals rejected a claim by death row inmate Jeffrey David Matthews that the drug, pentobarbital, could result in cruel and unusual punishment, in violation of the U.S. Constitution.

The Denver-based court concluded 3-0 that the amount of pentobarbital prison authorities plan to inject as the first of three execution drugs would by itself “likely be lethal in most, if not all, instances.”

The 10-page decision clears the way for the execution of John David Duty at 6 p.m. Thursday in the Oklahoma State Penitentiary in McAlester and two executions in January.

Billy Don Alverson is to be put to death on Jan. 6 and the Oklahoma Court of Criminal Appeals on Tuesday set Jan. 11 as the execution date for Matthews.

And:

Prison authorities said a few months ago they would be using pentobarbital for the first time because there is a nationwide shortage of sodium thiopental, which previously was the first of the three drugs used in Oklahoma’s executions.

Matthews, citing testimony of a medical doctor who is a professor of anesthesia at Harvard Medical School, contended using pentobarbital as an anesthetic might not work to prevent “severe, excruciating pain” from the subsequent drugs.

The appellate judges based their decision in large part on the testimony of the state’s witness, a medical doctor who is a professor of anesthesiology at the University of Massachusetts, who disputed the testimony of Matthews’ witness.

The judges said the state’s witness “has substantially more clinical experience with the use of pentobarbital” than does Matthews’ witness.

Tenth Circuit Judge Jerome Holmes, of Oklahoma City, joined Chief Judge Mary Beck Briscoe, of Lawrence, Kan., and Neil Gorsuch, of Denver, in the decision.

"10th Circuit Okays Use of New Lethal Injection Drug," is the title of Nathan Koppel's post at the Wall Street Journal Law blog.

Death penalty states, as we’ve reported, are stymied due to a nationwide shortage of thiopental sodium, an anesthetic long used by states to render condemned inmates unconscious during executions.

Oklahoma recently proposed substituting pentobarbital for thiopental.

Defense lawyers in the state have asserted that pentobarbital is unproven and risky, potentially subjecting inmates to a severely painful death.

But Oklahoma, the first state to propose using pentobarbital, has claimed that it is safe and has a long track record in animal euthanasia.

The 10th Circuit sided with Oklahoma.  Oklahoma has proven, according to the court, that it will use enough pentobarbital to achieve a quick death and that the chances of inmates suffering pain are “virtually nil.”

Earlier coverage from Oklahoma begins with the post, "The Oklahoma Lethal Injection Challenge;" related posts, in the lethal injection index.

Death Sentences Plunge in Texas

That's the title of Allan Turner and Mike Tolson's report in today's Houston Chronicle.  It's subtitled, "Foes cite new law, DNA testing; backers blame judges, delays in executions."

Juries in Texas — the nation's most-active death penalty state — sentenced only eight killers to die this year, the lowest number since 1976 when the U.S. Supreme Court ended its ban on capital punishment. Seventeen killers were put to death in 2010, six fewer than last year for the lowest total since 2001.

So far this year, Harris County, which typically has led the state in assessing death sentences, has condemned two convicted killers.

The figures were released Monday in an end-of-year review of capital punishment by the Austin-based Texas Coalition to Abolish the Death Penalty. The report came just weeks after a poll by Washington, D.C.'s Death Penalty Information Center, an anti-capital punishment group, found that only a third of registered voters in death penalty states thought death is the most appropriate punishment for murder.

"It shows that Texas and the rest of the country are moving away from the death penalty, even in Harris County. It's an astonishing development," said coalition executive director Kristin Houlé.

Houlé attributed the drop to Texas' 2005 life without parole statute and to the high cost to counties of seeking the death sentence.

Also eroding support for capital punishment is DNA testing, which has led to the exoneration of scores of inmates convicted of serious crimes, said Richard Dieter, the Washington, D.C., group's director.

"It's not that (most) people are all or nothing about the death penalty," Dieter said. "They just have this growing sense of uncertainty. It's a slow wearing away of confidence ... a feeling that it is just too risky."

And:

This year, Harris County juries sent Garland Harper, convicted of stabbing his girlfriend and strangling her two daughters, and Mabry Landor, convicted of killing Houston police officer Timothy Abernethy, to death row. Juries in Dallas, Brazos, Nueces, Rusk and Travis counties also sentenced killers to death

Harris County District Attorney's spokeswoman Donna Hawkins said the county has averaged two death sentences annually since life without parole became an option. "While we cannot speak for other jurisdictions," she said, "Harris County has not seen a decline in death sentences.

Life without parole was added as a sentencing option in capital murder cases in late 2005. By then the decline in death sentences already had begun in Texas and elsewhere. During the heyday of capital punishment in Texas in the 1990s, it was not uncommon for Harris County to send four or five murderers to death row. In 1992, it was responsible for 10 of the state's 31 new death-row inmates. In the past three years, however, Harris County has totaled only three death sentences, and in 2009 it did not record one at all.

District Attorney Pat Lykos called the decision to seek a death sentence "the gravest and most profound decision that a district attorney makes."

"We will continue to seek the death penalty in appropriate cases," she said.

Since Texas' resumption of executions in 1982, 464 killers — 115 of them from Harris County — have been put to death. Currently, 105 Harris County killers await execution.

The Fort Worth Star-Telegram reports, "Texas death penalty sentences fall again, California picks up slack."  It's written by Aman Batheja.

Only eight people were condemned to death in Texas this year, the lowest level since the state reintroduced capital punishment in 1976, according to data in a new report from the Texas Coalition to Abolish the Death Penalty.

Texas juries have been opting for the death penalty less often in recent years, in part due to the introduction of life without parole as an option in 2005. Several Texas prosecutors have said they are now less likely to push for the death penalty.

Over the same period that Texas death sentences have fallen, California's rate of condemned has been rising. Last year, the Golden State sent 29 people to its San Quentin death row. Texas sent 9. This year, California juries have picked death 21 times as of Oct. 1.

Earlier coverage of the TCADP report, Texas Death Penalty Developments in 2010: The Year in Review, begins with the preceding post.

TCADP Releases 2010 Annual Report

The Texas Coalition to Abolish the Death Penalty has issued its annual report, Texas Death Penalty Developments in 2010: The Year in Review.  The report is available in Adobe .pdf format at the link.

TCADP has also issed a news release announcing the report, "Only 2% of Texas Counties Imposed Death Sentences This Year, According to New Report from TCADP.  Death sentences, executions drop in 2010 as concerns about reliability and fairness continue to plague Texas death penalty system."

Here's an extended excerpt from the release:

Death sentences in Texas have dropped more than 70% since 2003, reaching a historic low in 2010 according to the Texas Coalition to Abolish the Death Penalty’s (TCADP) new report, Texas Death Penalty Developments in 2010: The Year in Review. TCADP, an Austin-based statewide, grassroots advocacy organization, releases this annual report each December in conjunction with the anniversary of the resumption of executions in Texas in 1982.
 
Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976. These new sentences occurred in six counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis.
 
Recent sentencing trends illustrate the arbitrary and biased imposition of the death penalty. An analysis of data from 2007 to 2010 reveals that only 21 counties – 8% of the 254 counties in Texas – meted out death sentences over the last four years. Out of a total 43 death sentences imposed statewide between 2007 and 2010, Dallas County leads with seven, followed closely by Harris County, with six new sentences.  Bexar and Travis Counties each accounted for three new death sentences since 2007. Nearly three-fourths of all death sentences in Texas over the last four years have been imposed on people of color – 40% African American, 30% Hispanic/Latino, and 2% other.
 
As part of the report, TCADP has produced two interactive maps highlighting new death sentences by county from 2007 to 2010 and from 1976 to 2010. Clicking on each county reveals the total number of sentences, the number executed, the number awaiting execution, and the number exonerated. See below for links to each map.
 
The number of executions also dropped in 2010.  The State of Texas executed 17 people, the lowest number since 2001.  The state remains the nation’s leading executioner, accounting for approximately 37% of U.S. executions in 2010.  The number of executions in Texas this year represents a smaller percentage of the national total than it has in recent years, however.
 
“Texas – along with the rest of the nation – is moving away from the death penalty,” said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty.  “The system is broken beyond repair, and the continued decline in new death sentences shows that jurors and prosecutors in Texas are seeking other ways to address violent crime.”
 
Concerns about wrongful convictions and emerging evidence of wrongful executions dominated headlines this year.  On October 27, 2010 Anthony Graves walked out of the Burleson County Jail after spending 18 years in prison – including 12 years on death row – for a crime he did not commit. Prosecutors dropped all charges against Graves and declared him innocent after conducting their own investigation of the case.  His conviction was based on the testimony of Robert Carter, who was convicted and executed for the same crime in 2000 and who recanted several times, including from the gurney.  Anthony Graves is the 12th person in Texas to be wrongfully convicted and removed from death row and the 138th nationwide.

The ongoing inquiry into the case of Cameron Todd Willingham also underscored the fallibility of the system. Willingham was executed in 2004 for setting a fire to his Corsicana home in 1991 that killed his three young daughters. The Texas Forensic Science Commission admitted “flaws” in the science used to convict him. In January it will hold a special meeting with some of the fire experts who have examined the case since the time of conviction and concluded that there was no evidence to support the finding of arson.
 
In another case of “flawed” science, recent DNA testing of evidence that was used to convict and execute Claude Jones ten years ago this month revealed that the strand of hair belonged to the victim, not to Jones, as a forensic expert testified during his 1990 trial. While the DNA results do not exonerate Jones, they raise serious questions about the reliability of his conviction.
 
Other highlights of Texas Death Penalty Developments in 2010: The Year in Review include the following:
•    In three capital murder trials, juries rejected the death penalty and opted for a sentence of life in prison without the possibility of parole. Over the last three years, juries have rejected the death penalty in a dozen cases (two each in Travis and Bexar Counties).
•    Three inmates scheduled for execution in 2010 received last-minute stays; the execution date of another inmate was withdrawn. On March 24, Henry “Hank” Skinner received a stay from the U.S. Supreme Court shortly after eating his “last meal.” In October, the Court heard arguments to determine whether Skinner can seek access to post-conviction DNA testing through the federal Civil Rights Act.  Texas officials have refused to release key pieces of evidence gathered at the crime scene in 1993 for testing.
•    At least six inmates received reduced sentences in 2010 and were removed from the death row population, including several inmates whose death sentences were overturned because jurors did not hear mitigating evidence during their original trials. Three other inmates died in custody, including Ronald Chambers, who spent 35 years on death row and was awaiting a fourth sentencing hearing related to the 1975 murder of Mike McMahan.
•    A nationwide shortage of the first drug used in the lethal injection protocol, sodium thiopental, led some states to postpone executions as their supplies dwindle or expire.  In November, officials with the Texas Department of Criminal Justice revealed that they had enough drugs on hand to execute 39 people, but that doses of sodium thiopental will expire in March 2011.
•    There currently are 317 people (307 men and 10 women) on death row in Texas. Texas holds the third-largest death row population in the nation, after California (713) and Florida (393).

News coverage of the report will be in the next post.

Coverage of TCADP's 2009 report is at the link.  The Death Penalty Information Center issues an annual report focusing on national trends.  I expect it will be issued soon.  Coverage of the DPIC 2009 report is noted at the link. 

Related posts are in the reports index

The Oklahoma Lethal Injection Challenge

"Oklahoma attorneys fight execution drug challenge," is the title of Robert Boczkiewicz' report for the Oklahoman.

An Oklahoma death row inmate's challenge to a lethal injection drug has no merit and his execution should be allowed to proceed, a state attorney argued Friday to an appeals court.

Convicted murderer Jeffrey Matthews wants the 10th U.S. Circuit Court of Appeals to stay his execution, contending the state's intention to use a drug it never has used would violate the Constitution and state law.

“There is no practical difference” between the new drug, pentobarbital, and the drug the state previously has used, sodium thiopental, state Assistant Attorney General Seth Branham wrote in 51 pages of arguments.

An execution date has not been set for Matthews, but prison authorities plan to use the same drug Matthews is challenging to execute John David Duty on Thursday.

Duty strangled his cell mate in 2001 while in prison for first-degree rape and two other crimes.

Matthews was convicted of killing his great-uncle during a 1994 McClain County home invasion robbery.

The drug intended for their executions will kill them “in a matter of a few minutes,” Branham told the Denver-based court. He cited testimony of the state's expert witness, a medical doctor who is a professor of anesthesiology at the University of Massachusetts.

Matthews' attorney submitted arguments Wednesday contending that the intended drug could cause “severe, excruciating pain,” in violation of the Constitution's protection against cruel and unusual punishment.

The inmate's attorney cited testimony of the defense's expert witness, a medical doctor who is a professor of anesthesia at Harvard Medical School.

The appeals court is expected to issue its decision before Thursday.

The McAlester News-Capital reports, "OSP to execute death row killer in McAlester Thursday."  It's written by Rachel Petersen.

U.S. District Judge Stephen Friot denied Duty’s appeal, which argued that using the substitute drug would constitute “cruel and unusual punishment.” Friot said that attorneys failed to prove that pentobarbital posed a “substantial risk of serious harm.” The two anesthesiologists who testified at the hearing agreed that a sufficient dose would render an individual unconscious and ultimately lead to death.

Earlier coverage begins with the post, "Oklahoma Lethal Injection Appeal Filed;" related posts, in the lethal injection index.

Peggy Fikac's Latest Column

The Houston Chronicle / San Antonio Express-News columnist and reporter's latest column is, "Trimming budget with empty benches."  It addresses two different issues of interest.  First, the CCA and the state budget.  Texas is facing an estimated $28 billion shortfall in the next budget.

Here’s one way to cut the budget at the Texas Court of Criminal Appeals: Trim it by one judge, at least temporarily.

The state's highest criminal court made the suggestion earlier this year during the first round of cuts to help address a looming, massive state budget shortfall.

Judge Charles Holcomb is retiring at the end of this year because of age restrictions — he's 77 - and GOP Gov. Rick Perry would appoint his replacement to serve until the next general election.

But the nine-member appellate court, faced with a preliminary cost-savings target of $487,376 for the current fiscal period, said one option would be to ask Perry to leave the seat vacant until the end of the fiscal year next Aug. 31.

The court said this would save eight months of salary for Holcomb and a couple of staff members, for a total of $191,328. It also would leave the court with eight members, causing delays as the remaining judges took up the slack and setting up the possibility of a tie on some cases.

State leaders didn't go for the idea earlier this year, instead allowing the court to reduce its target savings. Now that leaders are directing another round of cuts, Presiding Judge Sharon Keller said she doesn't know whether the court might again recommend the idea. "It's really up to the governor," she said, adding that she's not sure if it's an option since leaders exempted that item previously.

Whether or not it's resurrected, the proposal shows the lengths some agencies will consider to deal with the state's money problem.

On another topic, she writes:

The high-profile death-penalty case of Cameron Todd Willingham is the subject of an ongoing open-records battle in a lawsuit brought against Perry by the Houston Chronicle and Hearst Newspapers. Willingham was executed in 2004 for the 1991 deaths of his daughters in a fire. Death-penalty opponents, citing modern forensics, have said the blaze can't be proven to have been arson. Perry's office has refused to release a clemency report he received before denying a stay of execution, calling it privileged. State District Judge Suzanne Covington last week denied a request by lawyers for the news organization to review the memo to Perry and supporting documents through an "attorneys' eyes only" protective order so they can better frame their argument that the memo doesn't fall under attorney-client privilege. Covington said she would review the documents to decide whether they are protected. Her decision on that will go to the heart of the lawsuit.

All Willingham coverage is in the Todd Willingham index.  Related posts are in the Open Meetings / Open Records index.

Justice Stevens and the Death Penalty

That's the title of a New York Times editorial.  It appeared in the Sunday edition.

In the current "New York Review of Books," the retired Justice John Paul Stevens makes a compelling argument for abolishing the death penalty. He explains how it fails to meet the Supreme Court’s own standards for execution and persists only because of misguided political and cultural reasons.

When the court reinstated the death penalty in 1976, it said an execution could avoid being a “gratuitous infliction of suffering” if it served the purpose of incapacitation, deterrence or retribution. Justice Stevens argues first that it is now unnecessary for incapacitation because “the remedy of life imprisonment without the possibility of parole” has, over the last three decades, been enacted in 48 of 50 states.

While some scholars disagree, the retired justice is also persuasive that execution serves no “significant deterrent purposes,” especially since long delays in many executions undermine any potential for deterrence.

And:

The reasons the death penalty persists, he argues, are political and cultural. That is the core point of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, which Justice Stevens writes about in his essay.

The justice says that endorsing capital punishment is touted as a commitment to law and order — whether it was Gov. George W. Bush presiding over 40 executions in Texas in 2000 (the most ever in a year in one state) or elected judges in Alabama favoring the penalty (while unelected judges in Delaware do not). Its cultural power is demonstrated by Americans’ appetite for mysteries about murder and revenge.

While these forces need to be recognized, Justice Stevens is right that they are "woefully inadequate justifications" for a penalty that is a brutal anachronism.

Justice Stevens' essay is at the link; earlier coverage begins with the post, " Debate Over Capital Punishment."

Justice Steven's comments to the CBS News' program 60 Minutes is at the link.

Dallas Morning News Editorial on the Harris County Hearing

"Death penalty debate needs forum," is the title of a Dallas Morning News editorial.  It appeared in the Saturday edition.

The Texas Court of Criminal Appeals did the right thing when it put a stop to a Houston court's flawed effort to evaluate the death penalty last week. A sober and thorough public examination of the death penalty is overdue in this state. But the forum must be one that people of good faith can respect.

Breakdowns in the justice system have been exposed with such regularity in recent years that it's impossible not to question, or at least be willing to debate, the wisdom and justice of operating the nation's busiest death chamber.

This newspaper believes the state's use of capital punishment is unjustifiable today.

That very position was to be argued before a Houston trial judge last week by defense attorneys in a capital murder trial. The defendant, John Edward Green, 25, is accused in the 2008 robbery-slaying of Huong Thien Nguyen, 34, in her driveway.

Green's lawyers maintain executions should be held unconstitutional in a state with our long list of documented miscarriages of justice, including in capital convictions. Nowhere are faulty convictions more evident than in Dallas County, where 20 men have left prison after DNA tests cleared them. The county and state both are tops nationally in DNA exonerations.

And:

Regardless of what the appeals court rules, a responsible, comprehensive debate needs to take place among the state's best legal minds, lawmakers and thought leaders. This newspaper has consistently called on the Legislature to impose a moratorium on executions to allow for that rigorous analysis. The call for a moratorium has been joined by Texas Monthly magazine, whose senior editor Pamela Colloff has documented the detestable fraud in the Graves case.

Texans should stand mute no longer on this madness.

Earlier coverage of the Harris County Hearing in the Green case begins at the link; more on Anthony Graves' exoneration, at the link.

High Cost of Executions

That's the title of an OpEd by Chuck Arnold in today's Lompoc Record of California.  He's the pastor at Valley of the Flowers United Church of Christ.

In the late 1950s, I was working as a correctional officer (guard) at San Quentin prison. My duty that day was to patrol the big yard, a large area surrounded on four sides by the cell blocks and the dining facility. The desk sergeant called me in and said they were one short of the 13 witnesses necessary to carry out the execution that was scheduled that morning. I was chosen to be the 13th witness.

At that time, the state of California was still using the gas chamber. As I remember, the gas chamber was an octagon painted institution green, with glass windows on seven sides, approximately 4 feet from the floor, extending 4 feet to the conical metal top. It appeared to be about 12 feet in diameter. In the center of the space was a heavy wooden chair bolted to the floor with restraints for both legs and arms. Behind the chair was a large container of sulfuric acid. Suspended over this container was a mesh bag of cyanide eggs. The eighth side was the door allowing access for the condemned prisoner and the executioner.

The prisoner was a 30-something African-American man. He had been given a tranquilizer of some kind by the prison physician. He was a well-muscled picture of physical health. He walked calmly into the gas chamber, was seated and strapped in place. He had been instructed by the executioner to take a deep breath as soon as he heard the cyanide eggs hit the sulfuric acid. This he did, shuddered slightly and slumped forward against the restraints. After a few minutes, he was pronounced dead by the prison physician.

For some time before this execution date, as he resided on death row — the top floor of the North cell block — a suicide watch was in place in front of his cell 24 hours a day. This obviously was in place to prevent the prisoner from killing himself. The irony for me, was this elaborate and expensive protocol to keep him alive, and then the instruction, by the executioner to take a deep breath immediately upon hearing the cyanide eggs hitting the sulfuric acid, thereby hastening his death, inevitable though it was.

And:

The state of California is still killing people in your and my name. Now the state uses what is essentially a medical procedure, to stop the heart of the condemned person. Recently, there was a report on PBS about a shortage of a necessary part of the lethal cocktail used to kill a condemned prisoner. The company that manufactured that part of the cocktail said that it would be early next year before the necessary product was available.

California could save $1 billion over five years by replacing the death penalty with permanent imprisonment. We the California taxpayers pay $90,000 more per death row prisoner each year than on prisoners in regular confinement.

The moral and psychological cost cannot be calculated.

Earlier coverage of the cost of California's death penalty begins at the link.

Eric Zorn on the Illinois Death Penalty

The Chicago Tribune columnist has a lengthy post at his Trib blog, "Old case sheds new light on the death penalty debate."

A man posing as a neighbor needing to borrow a plunger raped a 29-year-old woman in her living room at the Maple Tree Apartments complex in west suburban Woodridge.

Police quickly arrested and charged Marcus Lyons, also 29, and a resident of the complex. The victim identified Lyons in a police lineup and testified at trial that she had no doubt he was her assailant.

Lyons, a U.S. Navy reservist with no criminal record, was convicted and spent three years in prison. But after his release he continued to fight to clear his name. Ultimately, a new round of DNA testing not only excluded him as the source of genetic material found on the victim's undergarments, but implicated an employee at a nearby gas station whose girlfriend lived at the apartment complex.

That man was in the state's DNA database due to his participation in an unrelated crime. But he will not be charged because the rape took place 23 years ago — in November of 1987 — and the statute of limitations on sexual assault charges has expired.

Why bring this up now? Because it illustrates three grave flaws in the justice system that ought to give pause to Illinois lawmakers who are planning to vote to keep the death penalty on the books when pending abolition legislation comes up in the General Assembly.

First, it shows the fallibility of eyewitness testimony, evidence that jurors often find overwhelmingly persuasive. This was no shadowy figure momentarily glimpsed in silhouette. The victim testified she saw Marcus Lyons in well-lighted conditions from "a foot, foot and a half away" before the attack.

Second, it shows how police and prosecutors can botch a relatively straightforward case. Here, the victim got dressed immediately after her assailant fled in order to secure her apartment and gather her thoughts. She then got undressed to shower and vigorously scrub herself clean, after which she put on fresh underwear for a trip to the hospital.

And:

Which leads to the third reason I bring up this story: It shows the difficulty prosecutors have admitting mistakes or criticizing shabby police work that results in gross miscarriages of justice.

Earlier coverage from Illinois begins with this post noting a Tribune OpEd calling for repeal of the state's death penalty.  The House legislative sponsor has said that she is one short vote for House passage.  The General Assembly will return for a final lame-duck session in January.

In Their Own Defense

That's the title of an editorial in today's Washington Post on the state of indigent defense.

LAURENCE H. TRIBE has left the Justice Department, last weekbut the mission he was tapped to lead - broadening and strengthening legal services for the poor - should carry on.

The Harvard law professor spent nine months as the senior counselor for access to justice. He says he is returning to Massachusetts to be near medical professionals who have been treating him for a benign brain tumor; he plans to resume teaching at Harvard next fall.

Mr. Tribe and Attorney General Eric H. Holder Jr. deserve credit for bringing increased attention to the sorry state of defense for indigent people some four decades after the Supreme Court articulated a constitutional right to counsel. Mr. Tribe also should be applauded for being a pragmatist. He acknowledged that funding increases for perennially short-changed programs are unlikely in these dire economic times and so focused the efforts of his team on ways in which existing networks might better serve the legal needs of the poor. Those include the use of technology to reach more clients in rural communities and increased assistance from the Justice Department for defender training.

And:

The access-to-justice team should also continue to coordinate with groups that have done extraordinary work in this area. The National Right to Counsel Committee of the nonprofit Constitution Project, for example, offered smart recommendations in a 2009 report on how to address the system's major failings, including creation of statewide independent public defenders' offices to ensure that those in all jurisdictions are given a fair shake. The National Right to Counsel Committee of the nonprofit Constitution Project, has collected information about how the increasing criminalization of relatively minor offenses has sapped legal resources from defendants facing serious charges and lengthy sentences. Its suggestion to lower penalties for minor breaches deserves a look.

Related indigent defense posts include:

• A Summit on the Constitutional Right to Counsel
• Indigent Defense Roundup

Lethal Injection Roundup

First, more reporting on the California FOIA document release -- this from Rina Palta at KALW-FM's Informant, "Timeline: California’s scramble for execution drugs."

The documents, products of a Public Records Act lawsuit filed by the organization in November, indicate that the California Department of Corrections and Rehabilitation started worrying about its supply of sodium thiopental, an anesthetic used to put an inmate to sleep before administering lethal drugs, in August.

In May, Hospira, the sole US manufacturer of the drug announced they were short raw materials to make the drug and wouldn’t be able to produce it in the near future. At the time, there hadn’t been an execution scheduled in California since 2006. Nevertheless, CDCR officials were on the lookout for supplies of the execution drug–a search that would eventually take them through Texas, Arizona, England, and Pakistan.

At Huffington Post, Colorado attorney Christopher Brauchli posts, "Executions Should be Painless."

At first blush it seems selfish of Texas. It has more than it can reasonably expect to use between now and next March when its current supply is set to expire. On the other hand, Texas thinks sharing would be worse than discovering that, because of unanticipated events, it had run out. The sought after substance is sodium thiopental, the short-term anesthetic that is administered to the condemned inmate before the other two drugs that will eventually provide the inmate with a comfortable transition to the hereafter are administered. Followers of such things will recall that the U.S. Supreme Court has approved the use of a three drug cocktail to relieve society of its unwanted members, even though the American Veterinary Medical Association (AVMA) prohibits their use when euthanizing animals. Its reason is sodium thiopental, the anesthetic administered when euthanizing living things so they will not feel pain when the two death dealing drugs are administered, is short acting and may have worn off before the remaining two drugs are administered. When that happens the living thing being euthanized may feel excruciating pain. Unlike the American Veterinary Medical Association, the U.S. Supreme Court is not all that concerned with excruciating pain for people being put to death. As Justice Clarence Thomas observed in the Kentucky case of Baze vs. Rees, the "method of execution violates the Eighth Amendment [ban on cruel and unusual punishment] only if it is deliberately designed to inflict pain" and that is not the purpose of the three drug concoction. It's just an incidental benefit when things don't quite go right.

And:

It seems a pity that executions in other states must be delayed because of Texas's stinginess. Texas is probably stingy because it doesn't want to give another state the opportunity to replace it as Number One in the number of executions performed since 1976. Hoarding the supply of sodium thiopental is a good way of protecting its record. It's hard to blame it.

On a more serious note, Richard Wilbur writes analysis, "Practicing Medicine on Death Row," at Truthout.

Execution by lethal injection has shone a harsh light on the complicity of health professionals - physicians, nurses and paramedics - in carrying out capital punishment. In a 2001 survey in the prestigious journal, Archives of Internal Medicine, an astonishing 41 percent of physicians surveyed said that they would assist or even carry out an execution by lethal injection and there is little evidence that the percentage has changed significantly since then. Deborah W. Denno JD, PhD, a leading scholar of death penalty litigation at the Fordham University School of Law in New York City, remarked that physician participation in executions is more prevalent than one might think, although exact numbers are not available because of the secrecy surrounding executions. And this does not even include the nurses and paramedics (also known as Emergency Medical Technicians or EMTs) who head up the execution teams in many states. Interestingly, the leadership of several major organizations have taken a more enlightened view on executions than many of their members.

Execution medicine is not a new specialty. Two centuries ago, physicians helped to design the guillotine, which remains an iconic symbol of the French Revolution. In the United States, hanging was the punishment of choice until 1890, when New York State carried out the first execution with the electric chair - invented by a physician, touted for its humaneness by an oral surgeon and carried out secretly by Thomas Alva Edison.

And:

Two years before the first lethal injection, the American Medical Association (AMA) issued a policy statement that it is a breach of medical ethics for a physician to participate in an execution. The AMA does not take a position on capital punishment per se - only the participation of physicians in the mayhem. Nor did the AMA prescribe sanctions for physicians who violate their oath. The American Nurses Association and the National Association of Emergency Medical Technicians have also taken the moral high ground, but have yet to punish a member for choosing the low road. The latest and most emphatic stance comes from the American Board of Anesthesiology.

With mounting evidence of botched executions and invigorated court challenges to lethal injections, some states have been going out of their way to procure the services of anesthesiologists, who, as experts in putting people to sleep, are uniquely qualified to put people to sleep permanently. This did not sit well with the American Board of Anesthesiology (ABA), which issued a statement in 2010 that "patients should never confuse the practice of anesthesiology with the injection of drugs to cause death." The ABA went on to warn its members, called diplomates, that "anesthesiologists may not participate in capital punishment if they wish to be certified by the ABA." This ruling spells the kiss of death for an anesthesiologist who gets caught moonlighting in the execution chamber or, indeed, helping out in any manner, because few hospitals would open their operating rooms to an anesthesiologist who has been stripped of his or her board certification.

Earlier coverage from California begins with the post, "California's Scramble for Lethal Injection Drug."  More on the issue of physician particiapation in executions and ethical stands by medical organizations in the physician index.

Texas Monthly to Call for Moratorium in Texas

That news from Jason Embry in his First Reading blog at the Austin American-Statesman. this morning.

Texas Monthly calls for a moratorium on the death penalty in its January issue, which will hit newsstands Thursday. From the piece by Michael Hall: “The flaws in our death penalty system have become too obvious to ignore any longer. Five times in the past seven years we’ve learned about a person wrongly convicted and taken off death row or a person convicted on bogus forensic science—and executed. It’s clear: Until the day comes when we are able to guarantee that our system will never put innocent men and women to death, we can’t continue to use a form of punishment that is irreversible. It’s time for Texas to put a moratorium on capital punishment.”

The article revisits several cases, including that of Anthony Graves, whom Texas Monthly has written about in extensive details in recent months. Graves was recently set free after spending 18 years behind bars, including 12 on death row.

From Hall: “Agents of the state grabbed a completely innocent man out of his mother’s apartment, prosecuted him for capital murder, and kept him locked away for almost two decades. What can we learn from Graves’s ordeal? Governor Rick Perry, campaigning in Lubbock two days later, was asked by a reporter about the case. ‘I think we have a justice system that is working, and he’s a good example,’ Perry said. ‘I think our system works well; it goes through many layers of observation and appeal, et cetera. So I think our system is working.’ In fact, the Graves case proves the exact opposite. Graves was failed every step of the way by the system—or, to be more precise, by imperfect humans working in a flawed system. He, like so many other wrongly convicted death row inmates, had inexperienced trial attorneys who were no match for a powerful prosecutor. He was also failed by the judges on the state appellate courts; the Court of Criminal Appeals, the highest of Perry’s fail-safe layers of appeal, turned him down three times.”

Hall has written a number of Texas Monthly articles on criminal justice in Texas; noted at:

• More on Scent Lineups, Junk Science, & Science Based Forensics
• Memo to Kay
• The Judgment of Sharon Keller
• The Exonerated
• Death Letters

More on Anthony Graves' exoneration at the link.  As I've noted before, Michael Hall and I are not related. 

Editorials From New Hampshire

"Abolish the death penalty," is the editorial in today's Concord Monitor.

Last week, after a year of testimony, public hearings and careful study, the state's 22-member Commission to Study the Death Penalty issued its report. By a 12-10 vote, the commission recommended neither to abolish the death penalty nor to act on pleas to expand it, but to leave things just as they are.

After 19 meetings and many hours of testimony, few if any of the commissioners appear to have changed their minds about capital punishment. Perhaps that's not surprising, given the emotional nature of the death penalty and the legal and moral complexities involved. So despite all the commission's work, not much was learned. In fact, recent evidence in one Texas murder case sheds more light about the wisdom of the death penalty than the commission's report.

One of the many arguments against the death penalty is its arbitrary nature. The outcome of a capital case can depend on the makeup of a grand jury and its willingness to indict; the ability of a prosecutor to exclude jurors opposed to capital punishment or even queasy about it; the resources available to the defendant; and the potentially unequal skills of prosecutors and defense lawyers.

Similarly, the outcome of a study commission can be heavily influenced by its makeup. The death penalty commission's conclusion was likely foreordained by the experiences and predispositions of those chosen to serve.

Of the 12 members who voted to retain the death penalty, five are current or former police officers, one was the father of a slain police officer, five are current or former prosecutors, and one was the relative of a murder victim.

The 10 votes for abolishing the death penalty came from a retired judge, three criminal defense lawyers, an environmental lawyer, a murder victim's son, a psychotherapist, a civil rights activist, a nonprofit organization executive, and a former attorney general.

And:

Though more than a score of death-row inmates have been found innocent in recent years, death penalty opponents have been hard-pressed to provide definitive proof that an innocent convict was executed. That no longer appears to be the case.

In Texas, a man accused of killing a liquor store clerk during a robbery was convicted based on the testimony of an accomplice and a hair sample collected at the scene. Four years after the execution of Claude Howard Jones, however, the accomplice said he lied. And last month, DNA analysis of the key hair sample proved that it did not come from Jones.

States are not infallible. A life wrongly taken by the state cannot be returned. But an innocent person serving life without parole can be freed. New Hampshire should join the states and the many nations that have progressed beyond capital punishment.

"Death penalty debate raises other concerns," is the editorial in Foster's Daily Democrat.

Commission member and former state Rep. Renny Cushing begin_of_the_skype_highlighting     end_of_the_skype_highlighting was among the minority who would have preferred to eliminate the death penalty in New Hampshire.

He recently told the Portsmouth Herald that at the end of the day, the death penalty is not about those who kill, it is about society.

"We, as a society, become what we abhor: killers," said Cushing, whose father was shot to death two decades ago. "I don't want the state killing in my name."

It can be argued that it is not the state who chooses to kill. Rather that it is the killer who chooses to sacrifice his or her own life.

But philosophy aside, Cushing rightfully casts a light on the often ignored side of the death penalty.

Ending a life of a murderer, no matter who they kill, only addresses a small portion of the damage exacted on those impacted by the crime.

Cushing, executive director of Murder Victims' Families for Human Rights, an advocacy group, is correct when he argues that the needs of victims far exceed the ability of the death penalty to address.

But Foster's Daily Democrat disagrees that offering greater help to victims needs to be an either or matter.

And:

For some, the death penalty does provide a level of comfort, of relief, of closure. And for those never directly impacted by murder, it signals a commitment by society to go the ultimate distance in penalizing someone who wantonly kills.

Some see that as retribution. Others argue that it usurps a right that should only be left to God.

But in a Democratic republic that values separation of church and state, the latter judgment must wait for another day. Meanwhile, the immediate judgment of the commission on which Cushing serves should hold sway.

Earlier coverage of the New Hampshire Commission begins at the link; related posts are in the study commission index.

Nicholas Kristof on the Kevin Cooper Case in California

The New York Times Op Ed columnist's latest is, "Framed for Murder?"

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.

This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.

Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?

But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.

William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”

Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Judge Fletcher laid out countless anomalies in the case.

And:

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?

Earlier coverage of the Cooper case begins with a recent Los Angeles Times OpEd, calling for clemency.

Indigent Defense in San Antonio

Today's San Antonio Express-News reports, "Bexar task force to examine indigent defense."  It's written by Brian Chasnoff.

Responding to a proposal by Bexar County Judge Nelson Wolff, commissioners agreed Wednesday to form an independent task force to explore best practices for providing indigent defense, the costs of which have risen millions of dollars in the past decade.

“We could collectively appoint the task force,” Wolff said, noting the growth of public defender offices in other Texas counties.

Jim Bethke, director of the state's Task Force on Indigent Defense, told commissioners at the meeting that he would offer resources and guidance to the nascent county task force.

Officials recently began scrutinizing the issue after the state task force found a small number of attorneys received a large percentage of court-appointed cases last year, the result of erratic appointment methods in the courts.

A subsequent investigation by the San Antonio Express-News and WOAI-TV found appointments skewed significantly in particular courtrooms, both in the number of cases appointed to certain attorneys and the amount of money they earned.

State law requires courts to appoint lawyers neutrally from a list. But local courts for years have disregarded the list, known as “the wheel.”

Defending the practice, some judges say large numbers of defendants routinely appear in court needing appointments, forcing courts to ignore the wheel in favor of attorneys who are available.

Local courts since have returned to following the wheel.

Tim Johnson, the county's director of judicial services, told commissioners Wednesday that Pre-Trial Services, which appoints lawyers from the wheel to defendants it finds indigent, is enacting fixes to inadequacies in the current system.

“They're quick and don't cost much,” Johnson said.

And:

Bexar County's Department of Planning and Resource Management presented a report on indigent defense to the commissioners that delved into the unequal distribution of cases last year.

The report states indigent defense costs have risen from $6.2 million to $13.3 million in the past nine years.

The top-earning attorney last year was Hilda Valadez, who earned $132,245 in court-appointed cases, including $93,690 in Judge Sid Harle's court.

By contrast, 75 percent of attorneys earned less than $25,000 in court-appointed cases, the report states.

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

Oklahoma Lethal Injection Appeal Filed

Today's Oklahoman reports, "Defense attorney appeals federal court decision on Oklahoma execution."  It's written by Robert Boczkiewicz.

Oklahoma’s intention to use a drug the state has never used in executions would violate state law, a death row inmate’s attorney argued Wednesday.

Using pentobarbital as the first of three drugs given during lethal injection “does not comply with the plain language of the governing Oklahoma statute,” contended Timothy Payne, attorney for Jeffrey Matthews.

Payne, an assistant federal public defender in Oklahoma City, made his argument in a 36-page brief filed at the 10th U.S. Circuit Court of Appeals in Denver.

An execution date has not been set for Matthews, but another death row inmate, John David Duty, is scheduled for lethal injection Dec. 16, and the state is planning to use pentobarbital as the sedative.

Payne argued Oklahoma law requires executions to use an ultra short-acting barbiturate.

Pentobarbital “is simply not an ultra short-acting barbiturate,” Payne wrote. “This is acknowledged by the state’s own expert.”

The appeals court is expediting the appeal, requiring state attorneys to respond by Friday.

And:

Using an improper anesthetic could cause “severe, excruciating pain,” violating the Constitution’s protection against cruel and unusual punishment, Payne argued.

U.S. District Judge Stephen P. Friot in Oklahoma City ruled Nov. 19 against that argument and decided Oklahoma can use pentobarbital. Matthews’ appeal challenges that decision.

Oklahoma prison officials said a few months ago they intended to switch to pentobarbital because of a nationwide shortage of sodium thiopental, the sedative it normally uses for executions.

Pentobarbital is used in animal euthanasia.

Earlier coverage of Oklahoma's decision to switch execution drugs begins at the link.

California's Scramble for Lethal Injection Drug

The ACLU of Northern California has released documents obtained from the state's Department of Corrections and Rehabilitation through a Freedom of Information Act request.  The webpage is titled, "CDCR's December 8, 2010 Response to ACLU Public Records Act Request: ACLU v. California Department of Corrections and Rehabilitation."

On November 17, 2010, the ACLU-NC filed a suit under the California Public Records Act to demand records from the California Department of Corrections and Rehabilitation (CDCR) about its recent acquisition of sodium thiopental, a controlled substance used as part of California’s lethal injection protocol for executing death row inmates. 

Click to read the case summary and view legal documents »

On December 8, 2010 the ACLU-NC received documents from the CDCR, which we have scanned and provided here in batches of about 50 pages.  All documents are posted as received from the CDCR, in the order received, with the following exceptions:

1) We have added our own electronic bates number to the bottom right corner of each page with the prefix "LI."  Our pages numbers start at LI000001 thru LI000989.    

2) We have edited in red pages 171, 172, 174, 177, 936, 937, 958, and 959 to remove the names of third parties that the CDCR redacted from identical documents, pending review by the California Superior Court as to whether this information should be available to the public.  The above page numbers correspond to the bates numbering we added. 

All pages of CDCR documents are available at the link.

The AP has two articles examining the documents.  First, "Docs show Calif.'s worldwide execution drug search," via Google News.

The e-mail from one California prison official to another almost reads like something out of a spy novel: "May have a secret and important mission for you."

Department of Corrections and Rehabilitation undersecretary Scott Kernan sent that message to assistant secretary Anthony Chaus on Sept. 29. The "mission" turned out to be a trip to Arizona for a fresh supply of sodium thiopental, the so-called knock-out drug used in the state's three-drug lethal injection.

California's only batch was set to expire and the drug was in short supply — as the state's first execution in five years loomed.

In August, Kernan, Chaus and other officials began a desperate worldwide search over two months for the drug, according to nearly 1,000 pages of documents released late Wednesday.

Kernan needed Chaus to send "one of your So Cal guys" to the Arizona State Prison Complex to pick up 12 grams of sodium thiopental.

The next day, on Sept. 30, Warden Carson McWilliams in Florence, Ariz., handed a California prison agent 24 vials of it. The agent then drove more than eight hours to Gorman, where he handed the vials off to another CDCR agent to complete the trip to San Quentin Prison, which houses the state's death chamber.

The trip went through even though California authorities on Sept. 29 had called off the planned Sept. 30 execution of Albert Greenwood Brown because of an adverse court ruling connected to the expiration date of the sodium thiopental on hand.

California had earlier "loaned" Arizona pancuronium bromide, another vital ingredient in the lethal injection, so it could carry out an execution.

The documents on California's lethal injection drug search were obtained by the American Civil Liberties Union and posted on its Northern California chapter's website.

And:

Most of the documents are internal e-mails that show California Department of Corrections and Rehabilitation officials scrambling to find a new supplier beginning in August because of the problems at Hospira, which led to a nationwide shortage of the drug in nearly every state that carries out lethal injections, except in Texas.

The e-mails show officials complaining about a Texas prison system — described in a local newspaper story as "well stocked" — apparently refusing to loan any sodium thiopental anywhere. Texas has executed 17 inmates this year and plans three more lethal injections by year's end.

"It is unfortunate that Texas would not share some of its 'well stocked' supply to help sister states but down the road they may need help in some other way and this position does not help their image," a Sept. 29 e-mail to Kernan states. "Nevertheless, in the prison business things are always changing and Texas is no exception."

The sender's name was blacked out by prison department lawyers before the e-mail was turned over the ACLU. It ends by saying "Sorry we were not able to help more."

Texas authorities were unavailable because of the late hour the documents were released.

The second AP report, "Calif. scrambled for execution drug," is by Paul Elias.  It's via the Washington Post.

California prison officials went on a frantic two-month search for a lethal drug needed to carry out the state's first execution in five years, which ultimately was called off, documents released late Wednesday showed.

The officials traded lethal injection drugs with their counterparts in Arizona, were snubbed by well-stocked Texas and scoured the globe from Pakistan to London for the drug in short supply.

The intensive search ultimately failed when the planned Sept. 30 execution was canceled in part because of a shortage of sodium thiopental.

The state's only supply of the drug on hand expired on Oct. 1 and resolving legal challenges brought by condemned inmate Albert Greenwood Brown would delay his execution beyond that date, leaving the state Attorney General's office no choice but to halt its attempts to proceed with the execution.

The office said the state won't schedule any more executions until a federal lawsuit claiming the state's lethal injection process is unconstitutional is resolved.

And:

They called nearly 100 hospitals and considered a supplier in Pakistan until acquiring 521 grams of the drug manufactured by Archimedes Pharma of Great Britain. The department still hasn't received the shipment, which is being held on the East Coast awaiting clearance from the Food and Drug Administration, spokeswoman Terry Thornton said.

Thornton said Wednesday night that the documents highlight the department's determination to carry out the execution of Brown, who was convicted in Riverside County of raping and killing a high school student and then taunting her mother.

"We have always said we were actively seeking a new supply of sodium thiopental," Thornton said.

The department managed to scrounge eight grams of the drug on Aug. 24 from a supplier not identified in the documents.

"It is enough to do one execution," CDCR Undersecretary Scott Kernan told Department Secretary Matt Cade in an e-mail. "Bad news is drug expires in Oct."

The documents also show the California prison officials receiving 12 grams of the drug from Arizona on Sept. 29, mere hours after the state Attorney General's office notified the 9th U.S. Circuit Court of Appeals that it was quitting its legal fight to execute Brown because of an adverse court ruling connected to the expiration date of the sodium thiopental on hand.

"You guys in AZ are life savers," Kernan e-mailed Charles Flanagan, Arizona Department of Corrections deputy director. "Buy you a beer next time I get that way."

Julie Small reports, "California’s Corrections Department swapped lethal injection drugs with Arizona," for KPCC-FM for| Southern California Public Radio.

“We’ve received a fair bit of the what, we’ve not received nearly enough of the who,” says ACLU attorney Michael Risher.

Risher filed a public records request with Corrections two months ago to find out more about the state’s source of sodium thiopental. He later sued to enforce it. A superior court judge in San Francisco recently ordered CDCR to comply.

Risher says the documents prison officials released reveal the agency conducted a global search for the drugs in places as far away as Pakistan and “refer to a ‘secret mission’ by the government to get the drugs.”

“Many people were involved with the process both inside and outside the Department of Corrections,” Risher said. “We simply don’t know all of that information yet. They’ve redacted the names of the companies they were doing business with. It sounds as if there were some middle men that the CDC contracted with to get these substances from a foreign country into the United States.”

Risher says the documents show that state officials also reached out to nearly a hundred California hospitals and communities but none gave the department the drug.

"Imported death penalty drug to be tested by FDA," is the title of George Miller's post at Fierce Pharma Manufacturing.

The anesthetic sodium thiopental purchased by California prison officials from a U.K. manufacturer will be tested by the FDA prior to use. It was shipped to the U.S. before the U.K. decided last month to constrain export of the drug to prevent its use in executions.

Counting the U.K. shipment, California says it has enough of the drug for 175 executions. More than 700 inmates populate death row in the Golden State.

Officials augmented their $36,000 purchase of 521 grams from Archimedes Pharma with 12 grams provided at no charge by the Arizona penal system.

Sodium thiopental has been in short supply in the U.S. due primarily to manufacturing delays at drugmaker Hospira, following an FDA warning for GMP violations at a North Carolina facility, as reported.

Earlier coverage begins with yesterday's post, "California Officials Release Some Drug Information."

Lawyers Try to Revive Texas Death-Penalty Hearing

That's the title of Ana Campoy's Wall Street Journal update on the Harris County hearing.

The defense attorneys for an accused killer are trying to restart a controversial hearing on the legality of the death penalty in Texas after the state's highest criminal court stopped it Tuesday at the request of prosecutors.

The controversial hearing, which started Monday at a state district court in Houston, was expected to last a couple of weeks. The defense lawyers had asked the judge to rule that the way Texas applies capital punishment is unconstitutional because it carries high risks of executing innocent people.

And:

But the Harris County district attorney's office, which brought the case against Mr. Green, asked the Texas Court of Criminal Appeals to halt the hearing, arguing that the district court has no authority to decide on the issue. The appeals court ordered the involved parties to file legal briefs within 15 days, outlining their arguments before it can decide whether the hearing should move forward.

"We are focused on what they want us to do and believe that there is a pretty decent chance that they will agree with us," said Richard Burr, one of Mr. Green's lawyers, of the appeals court.

A spokeswoman for the district attorney declined to comment.

Earlier coverage of the Harris County hearing begins with this post.

California Officials Release Some Drug Information

Carol Williams posts, "California now has enough drugs to execute 175 death row inmates," at the Los Angeles Times.  A correction revises the estimate in the headline, however.

Corrections officials told a federal judge Tuesday that they have imported enough sodium thiopental from Arizona and Britain to execute 175 death row prisoners.

The California Department of Corrections and Rehabilitation last month purchased 521 grams of the drug from Archimedes Pharma for $36,415, said department spokeswoman Terry Thornton.

Prison officials also acquired 12 grams of the drug at no cost from the Arizona Department of Corrections on Sept. 30, Thornton said.

The source of the execution drug was disclosed in a report to U.S. District Judge Jeremy Fogel in San Jose after the American Civil Liberties Union of Northern California made a public records request and a San Francisco judge gave corrections officials until Tuesday to explain where it got the drug no longer available from the sole U.S. manufacturer.

And:

The sodium thiopental bought from the British manufacturer is currently being stored at an East Coast site pending testing and approval by the U.S. Food and Drug Administration, said Thornton.

It was shipped ahead of Britain’s decision late last month to bar exports of the drug, which is also used in surgery and to euthanize animals. All European nations have renounced capital punishment, and Britain came under fire for making the drug available to U.S. states for executions.

California has the nation’s largest death row, with 713 condemned prisoners.

Also:

An earlier story about the state’s acquisition of 537 grams of sodium thiopental said that quantity was sufficient to execute 175 condemned prisoners. Newly revised lethal-injection procedures require the state to have a backup supply of each drug loaded and ready for use at each execution, which would expend twice the necessary amount of the drug per execution. The new rules also require that an unspecified quantity be used for training purposes.

"California Prisons release details of lethal injection drug acquisition," is the title of Julie Small's report this morning at KPCC-FM, Southern California Public Radio.

California prison officials have released hundreds of pages of documents on the state’s supply of a lethal injection drug. They sent those documents to the American Civil Liberties Union of Northern California after a court ordered them to do it.

California uses 6 grams of a barbiturate called sodium thiopental to anesthetize inmates during executions. The drug renders the inmate unconscious before a second drug stops his or her heart.

The state had to cancel an execution this year in part because its supply of sodium thiopental expired and the only domestic manufacturer of the stuff ran out of supplies. Shortly after that, Corrections acquired 12 grams of sodium thiopental, and month later it acquired another 521 grams. But officials wouldn’t say where or how or how much it cost.

"That shipment of the drugs was manufactured by a company, a pharmaceutical company based in England, Archimedes Pharma. They supply the drug to distributors," explains spokeswoman Terry Thornton.

And:

The American Civil Liberties Union of Northern California filed a public records request two months ago to get that information and sued to enforce it.

Death penalty opponents doubt the legality of foreign supplies of sodium thiopental. They say those supplies may be less effective and could subject inmates to excruciating pain during executions.

Corrections’ Terry Thornton says the federal Food and Drug Administration is reviewing California’s English supply of sodium thiopental – as expected.

"We are working with the FDA, we always have been working the FDA," says Thornton. "We have approval from the DEA, we have approval of this shipment from U.S. customs and as soon as the FDA releases it will be shipped to California."

Thornton says the department always intended to comply with the ACLU’s request for information on California’s sodium thiopental supply. But she says the state agency's attorneys had to consider numerous lawsuits, state and federal laws that affect what information it could and could not release. It also took some time to compile and copy the 1,192 pages of information it's released.

Earlier coverage from California begins with this post.

Claude Jones' Ashes

"A brother's last wish: 10 years after his execution, Claude Jones' ashes are laid to rest amid new questions about his guilt," is the title of Cindy Horswell's report in today's Houston Chronicle.

For 10 years, Travis Jones faithfully carried the ashes of his brother, who he believed had been wrongfully executed in Texas, in a box with him most everywhere he went.

That box, which became Jones' constant companion, was finally lowered into a grave at White Oak Cemetery in Porter on Tuesday. It marked the 10th anniversary of his brother Claude Jones' execution. That was just as Claude wanted, a last wish that some family members initially viewed as "crazy" but now see as prophetic.

Until his last breath, Claude, a 60-year-old career criminal, denied being the one who entered a San Jacinto County liquor store in 1989 to fatally shoot and rob the owner, Allen Hilzendager.

Before the execution, Jones told his younger brother, Travis, that he did not want to be buried in a cemetery in Huntsville with other killers and rapists. He asked his brother to sprinkle a small portion of his ashes in

three spots: the Gulf waters in Kemah, his mother's grave in Houston and his ex-wife's grave in Humble, but then preserve the rest for 10 years.

"My brother promised 'all would come out good' after that. Good things would happen," said Travis, saying his brother refused to explain further and just repeated that things would turn out "good." "He'd gotten kind of religious. I don't know if he'd had some kind of vision or dream or what."

But a few weeks before the 10th anniversary of the execution, new DNA testing has raised questions as to whether Claude was innocent. Mitochondrial DNA tests determined a strand of hair — which had been the only physical evidence linking Claude to the crime scene - actually belonged to the murder victim instead.

And:

Travis Jones, 58, a carpet installer now living in Miami, was the only one of Claude Jones' seven brothers to attend the execution.

Neither Travis nor Claude's other six brothers had ever been in trouble with the law. For about 20 years, Claude's brothers lost track of him after he stormed out of the house as a teenager. He was the admitted black sheep of the family who ran with a rough crowd and had gotten hooked on drugs and alcohol, the family said.

In 1975, Travis decided to hunt down the oldest brother, Claude, after losing two younger brothers - one to leukemia and another who was fatally run over by a motorist. He found Claude in prison.

"We grew very close," said Travis, who lost his home and went into debt to cover his brother's legal expenses and his own transportation costs to regularly visit him in prison.

Even as Claude faced his death, he didn't waver over his innocence.

"He said that he'd die and go to hell before confessing to something he didn't do," Travis said. "But he never pretended to be a saint."

From age 19, Claude spent most of his life behind bars. Yet he admitted committing only one murder - when he set a fellow inmate on fire whom he accused of trying to rape him.

Every year, the Dallas Morning News editorial board selects a Texan of the Year.  Columnist Steve Blow has offered up his suggestion, "Steve Blow's Texan of the Year pick: Wrongly executed man showed fatal flaw in capital punishment."

My Dallas Morning News Texan of the Year is dead. And you killed him.

So did I – and all other Texans. Together, we took the life of Claude Jones in a Huntsville execution chamber on Dec. 7, 2000. And now we know we were wrong in killing him.

Jones, 60, was executed for the robbery and murder of a liquor store owner in 1989.

Let it be stipulated: Jones was a sorry human being and a lifelong criminal.

But that's beside the point. What is important is that we erred in executing him. It shouldn't have happened.

Jones' alleged accomplices testified against him. But under Texas law, accomplice testimony alone isn't enough for a conviction. It must be backed by other evidence.

And in Jones' case, that was a single strand of hair found at the crime scene. A forensic expert examined it by microscope and testified that the hair could have come from Jones but not the store owner.

But a DNA test performed earlier this year revealed that the strand of hair was not Jones'. His conviction and execution rested on false evidence.

But our system failed him twice.

As his execution date neared, Jones asked the governor's office for a 30-day reprieve to allow DNA testing. George W. Bush was governor at the time and had granted such requests.

But Bush's staff failed to include the crucial DNA request in briefing papers. He denied a reprieve.

So 10 years ago this week, we wrongly killed a man.

Earlier coverage of Claude Jones begins with the post, "Taking Notice of Texas and Claude Jones."

Andrea Lyon on the Harris County Hearing

Shortly before the hearing was halted, Andrea Lyon posted, "Silence as Assent," at Huffington Post.

Something extraordinary is happening in Texas. A trial judge is holding hearings and listening to evidence about whether that state's death penalty is unconstitutional because of the risk of wrongful executions.

Lawyers for John E. Green Jr., who stands accused of murdering a woman in front of her children, are arguing that the death penalty as carried out in Texas in fact violates the Constitution because of the risk of executing innocent citizens. Those of us who defend death penalty cases do raise this issue in court, but it is routinely denied and evidence is not presented. Instead, trial courts say that the United States Supreme Court has said that the death penalty is not unconstitutional as being cruel or unusual. Strictly speaking, this is true, but nearly forty years ago, the Supreme Court struck down all then-existing death penalty statutes in Furman v. Georgia due to its freakish and arbitrary imposition. Four years after that, many states enacted new statutes that were supposed to end these problems by providing more safeguards. Well, not so much. We still keep getting it wrong. Yesterday, Richard Dieter, the executive director of the Death Penalty Information Center, discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

What Mr. Green's lawyers are saying to the court, and what they intend to prove, is that it is luck, not the system, that saves the innocent, and this cannot comport with any notion of the heightened reliability required before we execute someone. I will talk about this in a moment, but I wanted to tell you first what the state is doing at this hearing: Nothing.

That is right, nothing. They are "protesting" even holding the hearing -- something a trial judge is certainly entitled to do -- because in their view, the law is clear. So there's no need to have that pesky evidence, right? The Supreme Court said we can have a death penalty and that is that, and the state of Texas has taken the Court's statement to heart by performing nearly a third of all executions since 1978.

And:

In some situations a court holds silence to be assent or agreement -- like when a judge asks a panel of jurors if any of them have a problem with a legal proposition and no juror says anything, the judge will often say "I take it from your silence you have no problem with this proposition" and move on to the next issue. Perhaps as Judge Fine listens to the evidence of error rates like one in nine, and cases like those of Willis and Willingham, and the state remains mute, perhaps he will come to the conclusion that we cannot have a constitutional death penalty system without being willing to accept the risk -- apparently a substantial one -- that we will execute the innocent, and that the state's silence is in fact assent to the proposition that one in nine is an acceptable margin of error.

Earlier coverage of the Harris County hearing in the preceding post.  More Andrea Lyon at HuffPo, at the link.

Continuing Coverage of the Harris County Hearing

"Hearing on Texas death penalty stopped by court," is the AP report, via Google News.

An unusual court hearing on the constitutionality of the death penalty in Texas was put on hold Tuesday after the state's highest criminal court granted a request by prosecutors to stop it.

The Texas Court of Criminal Appeals ordered that the hearing be temporarily halted so prosecutors and defense attorneys can file motions on whether the legal proceeding should be allowed to continue.

The hearing, which began Monday and was set to last up to two weeks, had been ordered by a state district judge in Houston.

And:

Lawyers for the Houston man who had asked for the hearing had already presented two days of testimony on whether problems with such things as eyewitness identification and evidence offered by informants have created flaws in death penalty prosecutions in Texas and resulted in a risk that innocent people will be executed. They said their client, John Edward Green Jr., is innocent and the case against him uses some of the same faulty evidentiary procedures that have resulted in others being wrongly convicted. Green, who is awaiting trial, faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

Green's attorneys said they were disappointed by the appeals court's decision.

"We're confident we'll get a ruling in our favor and the hearing will continue," said Bob Loper, one of Green's attorneys. "We think our cause is just."

Donna Hawkins, a spokesman for the Harris County District Attorney's Office, declined to comment. At the hearing this week, prosecutors said they wouldn't participate during the legal proceeding and remained quiet.

The appeals court gave both sides 15 days to file their legal briefs. Loper said he doesn't know how long the hearing could remain on hold.

On Monday, the prosecutor's office had filed a motion with the appeals court, asking it to reconsider its decision from last month to not stop the hearing. In their motion, prosecutors reiterated their arguments that the claims being made by Greens' attorneys were well-settled case law and that Fine didn't have the authority to prevent the state from seeking the death penalty in the case.

Today's New York Times carries a brief item, "Texas: Hearing on Death Penalty Halted," by AP.

"Appeals court halts death penalty hearing in Houston," is the Houston Chronicle report written by Brian Rogers.

The Texas Court of Criminal Appeals halted an unprecedented death penalty hearing late Tuesday after an emergency appeal from the Harris County District Attorney's Office argued that a Houston judge was overstepping his boundaries.

The hearing on the constitutionality of the procedures surrounding the death penalty in Texas will be stopped to allow both sides 15 days to respond and file briefs in the state's highest criminal court.

State District Judge Kevin Fine had acknowledged that the appellate court may have been considering whether to order him to halt the proceedings in a preliminary hearing in the death penalty trial of John Edward Green.

Prosecutors and defense lawyers will now argue whether the hearing should take place. The district attorney's office said in its brief that Fine was exceeding his authority by allowing evidence regarding flaws in past death penalty cases to decide issues in Green's case.

Donna Hawkins, a spokeswoman for the district attorney office, declined to comment late Tuesday.

Defense lawyers for Green said they were disappointed in Tuesday's decision, but vowed to fight on.

"We will never quit on this issue and will defend him all the way to the Supreme Court if necessary," said Casey Keirnan, one of Green's attorneys.

Arguments at the appellate court could end or may just delay what has turned in to a full-fledged accounting of the safeguards of the procedures available used to convict and execute inmates in Texas.

And:

Brandon Garrett, a University of Virginia law professor, testified Tuesday that the rate of exonerations across the country is now averaging more than one a month.

Seven of the 261 national exonerations came from Harris County, Garrett said.

Loper noted that some of the reasons behind the wrongful convictions include mistaken eyewitness identification, bad forensic science and informant testimony.

Lawyers for Green believe the evidence against Green may include an eyewitness, a partial palm print and snitches.

Green, 25, could face the death penalty. He is alleged to be the gunman in a 2008 robbery and slaying in southwest Houston.

His attorneys have said Green is innocent, but the hearing was less about Green's case and more about whether Texas has executed innocent people because of a flawed system.

Barry Scheck, co-director of the Innocence Project, had been scheduled to take the helm today to call witnesses to testify about Cameron Todd Willingham and Claude Jones, two men convicted of capital murder and executed.

Scheck had been expected to try to convince Fine that the two men had been wrongfully executed.

Reuters posts, "Texas court halts death penalty hearing."

While some legal analysts have said the hearing into the legality of the death penalty will apply only to Green's case, it could render a high-profile judgment that influences the national debate on capital punishment.

The hearing is based on Texas rules that allow defendants to challenge the legality of potential punishments even before trial begins.

The state has executed 464 inmates over the last three decades -- far more than any other U.S. state. But death penalty opponents cite two prominent Texas cases in which significant evidence has come to light years after inmates' sentences were carried out.

Earlier coverage begins with last night's post, "CCA Stays Harris County Hearing."

The basis for the hearing is contained in this brief filed by Mr. Green's attorneys.  Complete coverage of the Todd Willingham and Claude Jones cases at the links.

CCA Stays Harris County Hearing

"Hearing on Texas death penalty stopped by court," is Juan Lozano's latest AP report via the Austin American-Statesman.

Texas' highest criminal court has stopped an unusual court hearing on the constitutionality of the death penalty in Texas.

The Texas Court of Criminal Appeals on Tuesday granted a request by the Harris County District Attorney's Office to stop the hearing.

Earlier, Brian Rogers posted, "DA files emergency appeal to end death penalty hearing," at the Houston Chronicle.

The Houston court hearing testimony about the constitutionality of the procedures surrounding the death penalty in Texas will continue to hear evidence despite an emergency appeal from the Harris County District Attorney's office late Monday to the state's highest court to halt the proceedings.

State District Judge Kevin Fine acknowledged this morning that the Court of Criminal Appeals may be considering whether to order him to halt the proceedings and set a date for the death penalty trial of John Edward Green.

Defense lawyers for green urged Fine to continue the hearing that began Monday and is expected to last two weeks.

Prosecutors respectfully remained mute today when asked about continuing the hearing. Their strategy has been to refuse to take part in Fine's hearing, opting instead to plead their case to appeals courts.

John Green's lawyers -- Dick Burr, Casey Keirnan, and Robert Loper -- issued the following statement after the Court of Criminal Appeals stayed the hearing.

"We are disappointed by the Texas Court of Criminal Appeals' decision today to temporarily stay the hearing in the John Green case, which is examining the risk of his being wrongfully convicted in his upcoming capital trial. In two days of testimony, the risk to Mr. Green of wrongful conviction based on flawed evidence was becoming readily apparent. The claim by Mr. Green is based on a constitutional theory never before examined by the Texas courts and derives from the mounting evidence demonstrating that the kind of evidence against Mr. Green -- eyewitness identification, testimony by paid informants, and fingerprint comparison -- is often inaccurate and leads to conviction of the innocent. We have confidence that when the Court of Criminal Appeals fully appreciates the evidence and the constitutional claim, it will allow the hearing to resume."

Here's a timeline of the Harris County District Attorney's Office attempts to derail the hearing:

• In April, Harris County District Attorney Pat Lykos filed a motion asking Judge Kevin Fine to be recused. This motion was denied by an independent judge appointed by an administrative judge.

• On November 19, the District Attorney’s Office filed a motion to prevent the court from holding the hearing. The Texas Court of Criminal Appeals denied the State's petitions ten days later.

• On December 6, the District Attorney's Office announced that it would not participate in the hearing and prosecutors declined to cross-examine witnesses.  In a statement released Monday, co-counsel for defendant John Green stated: "It is unfortunate that the district attorney's office has decided not to participate. If there were adequate safeguards to guard against convicting and executing the innocent, Texas prosecutors should be able to lay out and describe those safeguards to the court’s and the public’s satisfaction. Perhaps this is an admission that mistakes can and do happen."

• Today, the District Attorney's  Office filed a motion with the Texas Court of Criminal Appeals asking the Court to reconsider its decision to let the hearing go forward. The CCA granted that motion late today.

Earlier coverage begins with this post.

ABC News on the Cost Factor

Maya Srikrishnan posts, "Could Abolishing the Death Penalty Help States Save Money?," at ABC News.  There is video at the link.

California has a $25 billion deficit and almost 700 inmates on death row. According to a 2008 report issued by the California Commission for the Fair Administration of Justice, maintaining the criminal justice system costs $137 million per year, but the cost would drop to $11.5 million if it weren't for the death penalty. A 2010 study from the Northern California chapter of the American Civil Liberties Union found that California would be forced to spend $1 billion on the death penalty in the next five years if the state does not replace capital punishment with permanent imprisonment.

California is not the only state where cost has become an argument for abolishing the death penalty.

And:

Illinois Democratic State Rep. Karen Yarbrough, a sponsor of the bill, said she had been working on the issue of abolishing the death penalty for four years, and this is the closest the vote has ever come in the legislature for this measure. Yarbrough said she needs one more vote to call the bill to the Illinois House floor for a vote in January.

"Illinois has spent over $100 million in 10 years and hasn't put anyone to death," Yarbrough said. "It's time to put this barbaric practice to rest."

Yarbrough's bill would take the money saved from the death penalty and put it toward solving cold cases in the state, and training law enforcement officials.

"We have a $13 billion shortfall in the budget," she said. "We want to be pennywise and be able to put this money into something substantial."

And:

A typical cost per year for the death penalty ranges from $10 million to $20 million in states that have one or fewer executions per year, according to Richard Dieter, executive director of the nonpartisan Death Penalty Information Center. This number does not take into account states that have extreme numbers of executions or death row inmates, such as Texas or California.

"There have been quite a few studies in various states," Dieter said. "And the studies have all concluded that the death penalty is more of a burden on taxpayers than if the same defendant receives a life sentence."

A study by a Duke University economist in 2009 of North Carolina's death penalty costs found that the state could save $11 million a year if it abolished the death penalty.

In 2008, an Urban Institute study of Maryland found that a death penalty trial costs $1.9 million more than a nondeath penalty trial. The study also estimated that the state's taxpayers had paid at least $37.2 million for each of the five executions the state had carried out since 1978.

The Tennessee Comptroller of the Currency estimated in 2004 that death penalty trials cost an average of 48 percent more than trials in which prosecutors seek life imprisonment.

A 2003 legislative audit in Kansas concluded that capital cases are 70 percent more expensive than comparable nondeath penalty cases.

Every part of a death penalty case is longer and requires more legal time, since capital punishment is on the table, Dieter said.

Related posts are in the cost index; earlier cost coverage from California and Illinois, at the links.

No Such Thing as 'Humane' Executions

That's the title of today's Des Moines Register editorial.

Numerous reasons exist for opposing the death penalty. It's wrong for the government to reduce itself to the level of criminals. Executions don't deter crime. Life in prison is a more painful punishment for the most heinous crimes. State-sanctioned murder brings additional and prolonged attention to slimeballs.

Some who support the death penalty cite "an eye for an eye" as justification for killing killers. But the state cannot impose the kind of suffering on a criminal that he or she imposed on a victim. American authorities don't rape rapists or steal from thieves.

In fact, when the government does execute criminals, it goes out of its way to make death comfortable. Whereas hanging, electrocution and gas chambers were once commonplace, most criminals sentenced today to die face lethal injection. They are "put to sleep" with a cocktail of prescription drugs.

That method is now in jeopardy. The United Kingdom plans to limit exports to the United States of the drug widely used in executions. The British government said it would issue an order requiring anyone providing thiopental sodium, an anesthetic, to obtain a license. And licenses won't be granted if the drug will be used in executions. Our British brethren have a "moral opposition to the death penalty," according to the U.K. government.

And:

States are scrambling to find the anesthetic.

What they might do instead: Take a step back and recognize the sick absurdity of clamoring to kill prisoners.

Related posts are in the editorial index.

Tennessee's Lethal Injection Challenge

"Tennessee lacks medical expertise for lethal injections," is the title of Erin Quinn's report for the Tennessean.

Ricky Bell is prepared to take the back of Stephen West's head, brush his eyelashes and call out his name once a drug to knock out the rapist and murderer is shot into his veins.

If Bell sees no signs that West is still conscious, the warden of Nashville's Riverbend Maximum Security Institution will tell the executioner to pump the inmate with two more drugs to paralyze and kill him.

But if Bell thinks there's a chance the 48-year-old killer is awake, he'll order a second 5 grams of sodium thiopental, the drug designed to cause unconsciousness.

Because Davidson County Chancellor Claudia Bonnyman last month decided the current three-drug cocktail could cause a condemned inmate to suffer an extremely painful death, all executions in Tennessee are on hold. If they resume, West is next.

In the next three months, Bonnyman will hold a hearing with a new issue at the helm: Is a prison warden, who is not medically trained, qualified to tell whether a person is unconscious?

And:

Part of the problem has to do with the fact that medical professionals want nothing to do with killing people.

So, why can't the Department of Correction just choose to give all condemned inmates enough sodium thiopental to make sure they are unconscious?

"That would make sense, wouldn't it?," said Fordham Law School Professor Deborah W. Denno, who has studied the death penalty for the last 20 years. "I think a lot of it is sheer ignorance on the part of the DOC. Once you start changing your protocol, you're conceding you've had a problem.

Earlier coverage begins with the post, "Tennessee Supreme Court Stays Scheduled Execution."

Montana's Lethal Injection Challenge

Today's Missoulian reports, "Montana, death-row inmate's lawyers want stay of execution to continue."  It's written by Mike Dennison.

Lawyers for the state and death-row inmate Ronald A. Smith argued Monday that the Montana Supreme Court should maintain an order blocking his Jan. 31 execution date, to allow his lawsuit challenging the execution method to proceed.

District Judge John Larson of Missoula last month set the Jan. 31 execution date for Smith, acting two days after state District Judge Jeff Sherlock of Helena issued an order staying Smith's execution.

Then Larson asked the Supreme Court to intervene, saying only the sentencing court has the power to stay an execution.

Lawyers for Smith and the state, however, said Larson had been informed of the stay two days before he held a Nov. 3 hearing to set the sentencing date for Smith.

"What Judge Larson is seeking is to divest Judge Sherlock of the case challenging the constitutionality of the death protocol by executing the party who has standing to bring the action," wrote Ron Waterman, a Helena attorney representing Smith in the lawsuit challenging Montana's lethal-injection execution process.

Waterman said Sherlock's Nov. 1 order should stand while Smith's lawsuit proceeds to trial. The state agreed, and also said if the Montana Supreme Court intervenes, it also should block the execution while the lawsuit proceeds.

And:

Smith's appeals of his conviction and sentence have been exhausted before state and federal courts. However, in April 2008, he filed suit in state court, challenging the constitutionality of Montana's process for executing those sentenced to death.

This fall, after the U.S. Supreme Court denied Smith's final appeal of his conviction and sentence, lawyers for the state and Smith met and agreed that a stay should be issued to block any execution until the latter suit could be heard.

"The purpose of these discussions were to avoid a legal proceeding which would add confusion and unnecessary expense to both the criminal and civil process and to allow the civil challenge to the death protocol to proceed, before proceeding further in the criminal case," Waterman said.

Earlier coverage from Montana begins with this post.

California Lethal Injection Drug From UK

The AP report by Paul Elias, "Calif gets supply of drug used during executions," is via the Silicon Valley Mercury News.

California's prison department said Monday it has turned to an overseas manufacturer to replenish its supplies of sodium thiopental, a drug necessary to carry out executions in the state.

The state paid $36,415 to acquire 521 grams of the drug manufactured by Archimedes Pharma of Great Britain, Department of Corrections and Rehabilitation spokeswoman Terry Thornton said.

The order was placed overseas after the department's domestic supplier Hospira Inc.—the nation's only sodium thiopental maker—said production problems had hindered its ability to deliver fresh supplies.

Sodium thiopental has historically been used as a general anesthetic but is also the first of three drugs given during the lethal injection process for death row prisoners.

The U.S. has a shortage of sodium thiopental, and multiple states have halted or slowed the pace of lethal injections while searching for alternative sources of the drug.

The shortage of usable sodium thiopental contributed to the Sept. 29 cancellation of the scheduled execution of Albert Greenwood Brown in California. The prison department received a shipment of 12 grams from Arizona's prison department the next day.

Both new supplies expire in 2014. The disclosure of the sources and cost came after the American Civil Liberties Union filed a lawsuit seeking that information.

"Execution drug came from UK, California officials say," is the Sacramento Bee report by Sam Stanton.

California corrections officials said Monday that they ordered a large dose of a scarce drug used in lethal injection executions from Britain, a revelation likely to spur legal challenges to death penalty cases.

The California Department of Corrections and Rehabilitation is under court order to provide details to the American Civil Liberties Union by today explaining how it got the drug sodium thiopental.

Corrections spokeswoman Terry Thornton told The Bee on Monday that officials obtained two different doses of the drug for possible use in executions.

The first batch of 12 grams came from Arizona on Sept. 30, said Thornton, noting California was not charged for it.

The second batch of 521 grams was manufactured by Archimedes Pharma, a British company, and corrections officials paid $36,415 to obtain it, she said.

The shipment was approved by U.S. Customs and the Drug Enforcement Administration, Thornton said. It is on the East Coast awaiting release by the U.S. Food and Drug Administration.

"We have followed all the proper procedures," Thornton said.

The origin of the drugs is the subject of a lawsuit by the ACLU's Northern California branch, which contends that it is illegal for corrections to use a foreign-produced drug in executions without FDA approval.

Natasha Minsker, the ACLU's death penalty project director in San Francisco, said corrections officials were violating the law by releasing the information Monday to reporters but not to the ACLU.

"Until we see the records, we don't know (if the drugs can legally be used in executions)," Minsker said. "We're still left with the same questions: Where are the records? How did they get these drugs? What are they hiding?"

FDA officials could not be reached late Monday, but the matter has delayed executions nationwide and become an international controversy.

Rina Palta posts, "Where California got its execution drugs," at KALW-FM's Informant.

The ACLU of Northern California had won a case in San Francisco’s Superior Court last week that gave the CDCR until tomorrow to reveal their source of sodium thiopental. Natasha Minsker, death penalty policy adviser for the ACLU of NorCal, says that the organization is not satisfied with these disclosures. She says the court ordered the CDCR to share documents regarding the drugs as soon as possible. “It’s not up to the state to selectively release information to who they want, when they want,” she says. The public records case is scheduled for a hearing December 14.

States’ source of sodium thiopental has been a nationwide controversy since it emerged that the drug is scarce, as Hospira, the sole US manufacturer of the drug (and only one certified by the FDA), lacks raw materials necessary to produce it. The controversy escalated when Arizona used sodium thiopental purchased from Great Britain to execute Jeffrey Landrigan in October.

Last week, the UK passed new regulations that ban the export of sodium thiopental if it’s for the purpose of carrying out the death penalty.

Earlier coverage from California begins with this post; more on the UK export restrictions, at the link

More on the Bruce Webster Case

Scott Goldstein reports, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen," for today's Dallas Morning News.

To execute Bruce Carneil Webster for the 1994 kidnapping, rape and murder of an Arlington teen would be to violate the Supreme Court's ruling that capital punishment of the mentally retarded should be barred, he contends.

But on Monday, the same court that banned such executions in 2002 turned away Webster's appeal. The Supreme Court gave no reason for its rejection of the case despite new evidence that indicates three federal doctors thought Webster may be mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was killed.

A federal appeals court judge previously acknowledged that the new evidence appears to show Webster is mentally retarded. The judge and his two colleagues on the 5th U.S. Circuit Court of Appeals said, however, that Webster's execution could not be halted because he exhausted his appeals to the point that new evidence cannot be considered unless it is likely to prove his innocence.

And:

Such technicalities often come into play in cases like this, said Steve Hall of the StandDown Texas Project, which advocates a moratorium on the death penalty.

"Unfortunately, the situation when many death penalty cases and issues go to the Supreme Court is it's not a simple question that's being asked," Hall said. "It is often a highly technical, very convoluted question of procedure in law ... so the fact that you've got a situation that appears to be straightforward with a straightforward answer isn't always the case."

To Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., the Webster case could be a missed opportunity for the Supreme Court.

"I think the feeling has grown that the Supreme Court in 2002 decided this mental retardation issue but then has abandoned it, has left it to the states and even the federal government to put up barriers or to make it difficult to prove by setting case standards or burdens," Dieter said. "The Supreme Court hasn't revisited it to sharpen this ruling to make sure it works the way it's intended."

Earlier coverage begins with this post from yesterday.

News Coverage of Harris County Hearing - Day 1

"Legal Challenge to the Death Penalty Begins in Texas," is the title of James C. McKinley's report in today's New York Times.

The death penalty went on trial Monday in Texas, a state where more prisoners are executed every year than in any other and where exonerations of people on death row occur with surprising regularity.

Lawyers for John E. Green Jr., who stands accused of murdering a woman in front of her children, are arguing that the death penalty as carried out in Texas violates the Constitution because there is a high risk innocent people will be executed.

The hearing stems from a routine argument defense lawyers make in most death penalty cases. Judges rarely grant the motion, however, because the Supreme Court has repeatedly upheld the death penalty as outside of the ban on cruel and unusual punishment.

But Judge Kevin Fine, a Democrat elected last year, shocked many Texans by giving the argument serious consideration. As a result, his courtroom in downtown Houston became a forum Monday for defense lawyers to present a broad indictment of problems in the criminal justice system that they say lead to wrongful convictions.

They said that they hoped to prove that some of the biggest tools in the prosecution’s arsenal were frequently unreliable and led to mistaken convictions: eyewitness testimony, fingerprint evidences and the testimony of informers.

Alan Curry, the chief of the appellate division in the Harris County District Attorney’s Office, argued that the hearing should not be held and announced his office would not participate.

He declined to cross-examine witnesses. The prosecution has claimed that Judge Fine is biased against the death penalty and moved to remove him from the case, but the highest criminal court denied the motion.

The AP report, "Prosecutors stay mute during death penalty hearing," by Juan Lozano is via the Austin American-Statesman.

Prosecutors on Monday told a judge presiding over an unusual court hearing on the constitutionality of the death penalty in Texas that they won't participate in the legal proceeding and will "stand mute" during the hearing.

Despite the prosecution's actions, the judge ordered the hearing to go forward and lawyers for John Edward Green Jr. , the Houston man who asked for the proceeding, began calling witnesses.

The attorneys say they will try to show that the way death penalty cases are handled in Texas creates a risk that innocent people will be executed. Green faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

And:

The first witness was Richard Dieter , the executive director of the Death Penalty Information Center , a Washington-based group that has been critical of capital punishment.

Dieter discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

Dieter said his group's review of these exonerations has shown that faulty eyewitness testimony, unreliable informant testimony and false confessions are some of the factors that have contributed to innocent people being wrongfully convicted.

"The system, the number (of exonerations), the fortuity of finding mistakes would lead me to believe there is certainly a risk of executing the innocent and that risk still exists today," he said.

After Green's attorneys finished questioning Dieter, Fine asked prosecutor Alan Curry if he had any questions.

"We still respectfully refuse to participate in the proceeding, your honor," Curry said.

The Houston Chronicle reports, "Bold move by DA: DA tells her prosecutors to stay silent during judge's inquiry," by Brian Rogers.

Harris County District Attorney Pat Lykos on Monday ordered prosecutors in her office to "stand mute" during a rare hearing to determine whether the death penalty in Texas is unconstitutional.

The last-ditch strategy to end state District Judge Kevin Fine's judicial inquiry into the procedures surrounding the state's death penalty statute makes an observer out of the largest district attorney's office in Texas.

The hearing, stemming from a death penalty case before Fine's court, began Monday and is expected to last two weeks.

"It's arrogant, and it's contemptuous for the state to decide to not participate when they're trying to put my client to death," defense lawyer Casey Keirnan said in court.

Prosecutor Alan Curry told Fine he was ordered to answer that he is to remain mute instead of objecting, cross-examining or putting on witnesses at the hearing.

"I'm not allowing you to not participate," Fine said.

Curry said he and other prosecutors will remain seated at counsel tables, but that they will not speak.

Fine could have held the office in contempt for the move. Instead of deadlocking the proceedings, Fine allowed prosecutors to listen without objection to testimony from anti-death penalty experts, legal scholars and investigators.

And:

Curry and other representatives of the office declined to comment on the hearing or their strategy Monday.

Defense lawyers watching the hearing collectively shook their heads after listening to the district attorney's position.

"It's disrespectful," said Mark Bennett, a past-president of the Harris County Criminal Lawyers Association. "This is the most serious matter in this man's life and the district attorney's office is playing a game. Pat Lykos is ordering her subordinates to play games."

Witnesses expected to testify in the hearing include former Texas Gov. Mark White, who last month spoke in Houston with New York lawyer Barry Scheck of the Innocence Project.

White has called for legislative changes citing problems with the capital cases of Claude Jones and Cameron Willingham, both of whom have been executed.

David Muto posts, "The Brief: Top Texas News," at Texas Tribune, and the Harris County hearing is the top story of the day.

As the death penalty went on trial in Texas on Monday, one side of the courtroom fell silent.

And it stayed that way, per the direction of Harris County District Attorney Pat Lykos.

Lykos ordered her team of prosecutors to "stand mute" — to refrain from cross-examining, objecting or otherwise participating — in District Judge Kevin Fine's first-of-its-kind judicial inquiry into the constitutionality of the death penalty as it's administered in Texas.

Fine, a Democrat, already ruled against the death penalty in the same case — involving a man accused of a 2008 murder and robbery — in March but then rescinded his ruling to allow lawyers to gather more evidence. Many expect Fine to once again side with the defense, which, citing DNA evidence, contends that its client is at risk of being wrongfully executed following a series of prosecutions that have questioned whether the state has put innocent men to death.

"Texas judge puts state's death penalty on trial," is the Reuters report by Chris Baltimore.

John Green, 25, is awaiting trial after being charged with murdering a woman during a robbery in Houston in 2008. He says he is innocent.

His lawyers have challenged the constitutionality of Texas' death penalty, claiming that there is a high probability of wrongful convictions and executions under current trial rules. Their effort is predicated on Texas rules that allow defendants to challenge the legality of potential punishments even before trial begins.

The state has executed 464 inmates over the last three decades -- far more than any other U.S. state. But death penalty opponents cite two prominent Texas cases in which significant exculpatory evidence has come to light years after inmates' sentences were carried out.

During roughly two weeks of testimony, state District Judge Kevin Fine will hear arguments from prominent death penalty opponents, who will shine a spotlight on the legal processes and evidentiary support used in Texas' capital punishment trials, which critics say are error-prone.

"This will be an authoritative statement on the death penalty in Texas," said James Liebman, a law professor at Columbia Law School. The case could impact other states like Illinois, where there is a legislative effort to repeal the punishment, Liebman said.

County prosecutors said they will "stand mute" during the hearing, after citing 19 reasons why it should not proceed. Prosecutor Alan Curry told Judge Fine he would "respectfully refuse to participate" in the hearing. Fine later told Curry, "I expect your participation."

Reuters also has this Factbox, as a sidebar to the main report.

John Bacon posts, "Legal shootout targets executions in Texas," at USA Today.

Former Texas governor Mark White is among witnesses scheduled for the hearing that opened today. White has called for legislative changes citing problems with the capital cases of Claude Jones and Cameron Willingham, both of whom have been executed.

Lawyer Barry Scheck of the Innocence Project says Jones and Willingham were innocent and that Texas has almost certainly executed other innocent people.

The defendant in this case, John Edward Green, 25, is accused of a 2008 robbery and murder. "He is at risk of being wrongfully convicted, wrongfully sentenced and wrongfully executed," defense lawyer Richard Burr said.

"Texas court to rule on death penalty constitutionality," is the BBC report.

Texas judges are elected, not appointed. Judge Fine is anomalous in heavily Republican Texas - he is a tattooed Democrat who has identified himself as a recovering alcoholic and a former cocaine user.

Prosecution lawyers have unsuccessfully attempted to remove Judge Fine from the case. They accused him of "antagonism against the death penalty" in court documents and expressed doubt over his impartiality.

They also argue that the death penalty is settled case law and does not need to be examined.

Since the resumption of the death penalty in Texas in 1992, Harris County, where Judge Fine serves, has sent more prisoners to death row than any other. Of the 286 death sentences in Harris County, 115 prisoners have been executed.

Inter Press Service posts, "U.S. Execution Capital Reconsiders Ultimate Punishment," by William Fisher.

Green's attorneys contend that a number of factors in Texas's legal system increase the risk of innocent people being executed.

According to the defence, these include a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions, and a history of racial discrimination in jury selection.

Paul Cates, director of communications for the Innocence Project, told IPS, "The Innocence Project will be participating in the hearing specifically to put on evidence about the cases of Claude Jones and Cameron Todd Willingham. Both Jones and Willingham were executed in Texas."

He said, "In the case of Claude Jones, DNA evidence has proven that critical physical evidence (a hair sample) used to place him at the scene of the crime did not belong to Jones. Cameron Todd Willingham was executed even though a prominent arson scientist notified the Governor and the appeals court prior to his execution that the critical testimony of the arson investigator was based on outdated arson science."

Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive -- and free -- because a pro bono law firm took his case.

The Innocence Project has been responsible for freeing numerous prisoners from death row, largely through its use of DNA evidence.

Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas.

"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she told the Huffington Post.

Austin NPR affiliate KUT-FM reports, "Judge Reviewing Texas Death Penalty," by Crystal Chavez.

The hearing is tied to the case of accused killer John Edward Green. Governor Rick Perry has stood by the state’s system saying it is “fair and appropriate”.

But some high profile cases, including that of Cameron Todd Willingham, have cast doubt on the system.

“When you look at this state that has carried out 464 executions, far more than any other state in the nation, and you look at these cases it’s pretty hard to escape the conclusion that we have not always gotten it right. And that in fact Texas likely has executed innocent people,” said Steve Hall, director of The StandDown Texas Project during an interview on KUT at noon.

The Project advocates for a moratorium on the death penalty while the way it is carried out is reviewed.

Hall says since 2001 the state Legislature has been “fixing” and “repairing” parts of Texas’ criminal justice system.

“In this case you’re seeing a court take judicial notice of what’s been happening over the past ten years in Texas,” said Hall.

Earlier coverage of the Harris County hearing begins with this post noting editorial commentary.  The basis for the hearing is contained in this brief filed by Mr. Green's attorneys.

The Continuing Saga of Steven Hayne

That's the title of Radley Balko's post at Reason.  It's subtitled, "The latest developments in the story of America's most industrious medical examiner."  Here's the beginning of the report:

Last week the Mississippi Supreme Court granted a new trial to Cory Maye, who is serving a life sentence for shooting and killing Prentiss, Mississippi, police officer Ron Jones during a botched drug raid on Maye's apartment. One of the key prosecution witnesses in Maye's case was Steven Hayne, an overworked, ethically dubious medical examiner who performed the overwhelming majority of criminal autopsies in Mississippi for two decades, from the late 1980s until 2008. Although last week's ruling did not address Hayne's work, it presents an opportunity to consider recent developments in Mississippi's slow evolution toward a more competent death investigation system.

It was through Maye's case that I began reporting on Hayne, which resulted in a 2007 feature story in Reason. I found that he was performing a staggering 1,500 to 1,800 autopsies a year and had given dubious pro-prosecution testimony in several cases. Hayne (who over the years has never responded to my requests for an interview) had also given questionable testimony in civil cases, usually testifying for plaintiffs in medical malpractice and consumer lawsuits. In April 2009 I wrote another feature for Reason about the work Hayne and his sidekick, Hattiesburg, Mississippi, dentist Michael West, did in the Louisiana murder trial of Jimmie Duncan, who was eventually convicted and sentenced to death for sexually assaulting and murdering 2-year-old Haley Oliveaux, the daughter of his then-girlfriend. A video showed West repeatedly pushing a dental mold of Duncan's teeth into Oliveaux's skin, a practice other forensic experts say is at minimum malpractice and may amount to criminal evidence tampering.

In August 2008, Mississippi finally barred Hayne from doing any more autopsies in the state, although he still testifies in court, due to the massive backlog of cases in his care when he was terminated. Several of the state's coroners and prosecutors, along with Mississippi Attorney General Jim Hood, mounted a brief campaign last year to reinstate Hayne, but that effort was defeated by the Mississippi legislature earlier this year.

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

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

OpEd Roundup

In Illinois, today's Chicago Tribune carries the OpEd, "Moratorium means agonizing legal limbo."  It's by Mike Lawrence, a former journalist and press secretary to Gov. Jim Edgar from 1991 to 1997.

Illinois' 10-year moratorium on executions has kept us from killing the wrongly convicted while we added significant protections against error. But it has not abated the agony of jurors like Sue Grbic or the angst of victims like the 52-year-old woman who was raped and battered by a man who murdered 11 people.

It has spared politicians who are eager to appease both friends and foes of the death penalty.

"Although he supports capital punishment when applied carefully and fairly, he is deeply concerned by the possibility of an innocent man or women being executed," a spokeswoman for Gov. Pat Quinn said during the campaign season. "He believes the current moratorium gives the state an opportunity to reflect on the issue and create safeguards to make sure the death penalty is not being imposed improperly in Illinois."

The statement is all too typical — and evasive. We can reduce but never eliminate the possibility of lethal injustice. Legislators and the governor should abolish capital punishment. Absent that, they should enact whatever reforms they deem necessary to resume it. The legal limbo becomes harder to justify each day.

And:

In its final report, the Capital Punishment Reform Study Committee called for establishing a panel to review prosecutorial decisions. It also proposed changes to help assure more accurate identification of perpetrators through lineups. If the General Assembly refuses to eliminate the death penalty, it should act quickly to approve those recommendations, which come from top professionals reflecting a diversity of perspectives. Quinn should then lift the moratorium.

Some might question the urgency; given the lengthy appeal process, no Death Row occupant faces imminent execution. But if we are asking judges and jurors to agonize, demanding that prosecutors make hard decisions and allowing some victims and some families to hope for executions, we should at least make it all real.

"Why I oppose the death penalty," is the title of Renny Cushing's New Hampshire OpEd posted at Sea Coast Online.

Editor's note: This week a New Hampshire legislative study commission voted, 12-10, to recommend the state keep its existing death penalty laws. Renny Cushing, a former Hampton state representative and victim's rights advocate, served on the commission and does not support the death penalty. His views were shaped, in part, by the murder of his father 20 years ago. Seacoast Media Group has written numerous editorials through the years in opposition to the death penalty but none with the clarity of the statement we received from Cushing this week, which is excerpted here.

There were a number of family members of murder victims who appeared before the commission to share their personal experiences with homicide and the criminal justice system. They expressed their opposition, as victims, to the death penalty. As I listened to their testimony, and as I do when I listen to the experiences of any family member of a murder victim, whether they support, oppose or have no opinion on the death penalty, I felt a sense of shared experience, empathy and solidarity.

My father, Robert Cushing Sr., was shotgunned to death in front of my mother in our family home two decades ago. For me, thinking about what should be done after a murder happens is not just an intellectual exercise; it's part of my life. The pain that is difficult to give words to, the emptiness and trauma, are part of my personal reality that I brought to the work of the commission.

And:

At the end of the day, the death penalty is not about those who kill, it is about us. We, as a society, become what we say we abhor, killers. I don't want the state killing in my name.

As a citizen, as a member of this commission, and as the son of murder victim, Robert Cushing, I view the death penalty not as a criminal justice sanction, but as a human rights violation. I aspire to live in a society, in a world where human life is cherished and the dignity of all is respected. As a parent, I choose hope and optimism for the future, for my children and the world in which they will live, and I believe that history is on the side of those of us on the commission who support repeal of the death penalty. New Hampshire can live without the death penalty, and I know the day will come when capital punishment is abolished.

You can read Renny Cushing's full statement at the link.

Earlier coverage from Illinois and New Hampshire at the links.

The Case of Bruce Webster

The Dallas Morning News has posted, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen."

The U.S. Supreme Court has turned away the appeal of an Arkansas man who helped kidnap, rape and bury an Arlington teen alive in 1993, although a federal judge said evidence shows that he is mentally retarded.

The high court banned the death penalty for the mentally retarded eight years ago. In their ruling today, the justices offered no comment in rejecting the appeal of Bruce Carneil Webster.

Webster, 37, was sentenced to death more than 14 years ago and has since tried to persuade federal judges that he is mentally retarded.

A panel of the 5th U.S. Circuit Court of Appeals said in an April ruling that Webster had exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent. And because everyone agrees he's guilty, he still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," 5th Circuit Judge Jacques Wiener Jr. wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Steven Wells, Webster’s attorney, said he was disappointed that the Supreme Court opted not to hear the case. But he said that doesn't mean the fight is over.

“The government in their briefs suggested that there were some alternative avenues for relief and I expect that we’ll be pursuing one or more of those,” Wells said.

Among the possibilites, he said, is an appeal through the federal courts in Indiana, where Webster is currently being held.

“It is not over and we will not give up until … we’re allowed to have a court review of this new evidence of mental retardation on its merits, which no court has done yet,” Wells said.

Evidence recently provided by the Social Security Administration shows three federal doctors determined Webster was mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was kidnapped and killed.

One potential avenue to correct the sentence would be clemency. This is a federal death penalty case, so any request for clemency -- a commutation of the death sentence to a life sentence -- would be directed to the President of the United States.

Clemency has been utilized in two Texas capital cases in which there was a determination that the individual had mental retardation.  In March 2004, Governor Rick Perry commuted the death sentence of Robert Smith.  Experts had determined that Smith had mental retardation and was thus barred from execution under the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.  A court could have set aside Smith's death sentence, but the Harris County District Attorney's office asked that Smith's sentence be commuted.  In 2007, the same circumstances led Governor Perry to commute the death sentence of Doil Edward Lane, after it was determined that Lane had mental retardation.

Earlier coverage of the Bruce Webster case begins at the link.  Related posts are in the mental retardation index.