The StandDown Texas Project

Death Penalty's Cruel Toll on the Victims

That's the title of a lengthy editorial from the Sunday edition of the Baltimore Sun.  It's subtitled, "As the legislature takes up another attempt to repeal capital punishment, lawmakers should consider the inherent burden it places on those who have already suffered."

As Maryland's de facto moratorium on executions drags on and lawmakers in Annapolis prepare for another set of hearings in the years-long push by advocates to outlaw capital punishment, it is understandable that the families of those who were murdered by the five men on death row would be frustrated and angry. Phyllis Bricker, whose parents were murdered by death row inmate John Booth-El, gave voice to the anguish that has caused in a recent interview with The Sun's Julie Bykowicz: "There's been no closure, no justice. … We're still here, and now we're fighting the legislature. Nobody ever told us we'd have to do that."

When Mr. Booth-El was sentenced, Ms. Bricker and her family were promised the ultimate in finality, but they have gotten anything but. It has been 27 years since he was sentenced. Two other inmates on Maryland's death row have been there the same amount of time, and the other two have served 15 and 13 years since they were sentenced to die.

Supporters of capital punishment in Maryland point to the very real suffering of people like Ms. Bricker as evidence that our state's criminal justice system is hopelessly prejudiced in favor of criminals and not victims.

And:

According to the U.S. Department of Justice, the vast majority of people sentenced to death are not actually executed. Since 1977, 4,942 of the 8,115 people sentenced to capital punishment have left death row. Of that number, only 1,188 were executed, or 24 percent. More than twice as many eventually had their convictions or sentences overturned; others had their sentences commuted or died of other causes before they could be executed.

And Maryland's delays in executing prisoners, while greater than average, are not an anomaly. The typical death row inmate has been waiting 146 months, or more than 12 years, since sentencing, and the average time from sentencing to execution nationwide went up from about six years in 1984 to more than 14 years in 2009. The amount of time varies by state, but even in Texas — which few would argue is reluctant to carry out capital punishment — the average time between sentencing and execution is 10.6 years.

Death row inmates are, by and large, an unsympathetic lot, and a justice system that is focused on ensuring that brutal killers' rights have been scrupulously observed inevitably comes across as cruel to victims' families, who have already endured monumental cruelty. The problem is that it is impossible to construct a system of capital punishment that doesn't doubly victimize the innocent. If we are to impose the most final of all penalties, we must be absolutely certain of the guilt and culpability of those who receive it, lest the state be just as guilty of murder as the criminals it seeks to punish. And too many inmates on death row have been exonerated for us to take that process lightly.

According to the Innocence Project, 17 people who spent time on death row have been exonerated through DNA testing, and many more have been released based on other new evidence. Twenty-two convictions of people sentenced to death were overturned in 2009 alone, according to the Justice Department, and appeals courts overturned another 42 sentences — together, that's more than the 52 people who were executed nationwide in that year.

The story of Kirk Bloodsworth is familiar to many in Maryland. He was sentenced to death in 1985 for the murder of a 9-year-old girl in Rosedale, only to be freed nine years later after DNA evidence showed he was not the killer. But his story is hardly unique. Among the cases chronicled by the Justice Project, with which Mr. Bloodsworth now works, are those of Earl Washington Jr. of Virginia, who spent 18 years in prison, nine of them on death row, before he was exonerated by DNA evidence; Joseph Amrine of Missouri, who spent 17 years on death row for a crime he didn't commit; and Anthony Porter of Illinois, who spent 16 years on death row and was within two days of execution when the state Supreme Court agreed to a stay to examine his mental fitness. During that delay, a key witness recanted, another came forward, and the real killer made a videotaped confession.

And:

In other states, the frustrations inherent in capital cases have led the families of some victims to argue for the end of capital punishment. In Connecticut, 76 family members of murder victims sent a letter to the legislature this month urging it to repeal the death penalty, saying it is "a false promise that goes unfulfilled. And as the state hangs on to this broken system, it wastes millions of dollars that could go toward much-needed victims' services."

In Illinois, Jennifer Bishop and Kathleen Bishop Becker, cousins who lost three family members to murder, wrote in an op-ed in the Peoria Journal Star last month that the death penalty is a "harmful albatross" for murder victims' families. "In capital cases, family members are forced to endure years of trials and appeals that last at least twice as long as in non-capital cases, not to mention a long string of possible reversals because the system didn't get it right," they wrote. "The offender becomes a household name and the victim is forgotten. We are frequently denied legal finality. The state ends up spending millions, which are then not available to help victims or family members." Dozens of family members of Illinois murder victims have also petitioned the legislature for an end to capital punishment.

When the House of Delegates takes up a death penalty repeal bill next month, many will likely see the debate as a conflict between those who have sympathy for murderers and those who have sympathy for victims. But the issue is much more complicated. Proponents of capital punishment may believe they are offering victims' families the chance for true justice, but they must acknowledge that the promise frequently goes unfulfilled, and it exacts a terrible price. The state has interests in the penal system beyond the desires of victims and their families, but insofar as Maryland legislators weigh the question of justice for those most deeply affected by the most terrible crimes, they need to recognize that a sentence of life without the possibility of parole provides peace and certainty that the death penalty rarely can.

Earlier coverage from Maryland begins at the link.

Anthony Graves' Quest for Compensation

"State comptroller very inconsistent on compensation," is the title of Lisa Falkenberg's Houston Chronicle column.  It appeared in Thursday's edition.

How the state comptroller could deny Anthony Graves' compensation, seemingly on a technicality, for the 18 years he spent wrongly imprisoned has outraged some and baffled nearly everybody.

After all, Texas' compensation law seems tailor-made for a guy like Graves, who was finally freed after nearly two decades behind bars including 12 years on death row, when it became clear he was innocent in the savage Somerville murders of a grandmother and five children.

A federal appeals court overturned his case, and years later Kelly Siegler, the special prosecutor who was supposed to retry it, boldly acknowledged there wasn't one shred of evidence linking Graves to the crime.

Recently, Comptroller Susan Combs argued that Graves shouldn't be compensated because the order clearing him didn't use the term "actual innocence." The statute requires an applicant to have either "a full pardon on the basis of innocence for the crime for which the person was sentenced" or have "been granted relief on the basis of actual innocence. …"

At first, I was hesitant to jump on the bandwagon of those attacking Combs' decision. She is not an attorney or a detective. If the paperwork doesn't say "innocent," it's not her job to go out and conduct her own investigation. And broadly interpreting the statute could open the floodgates for baseless compensation claims.

But, it turns out the comptroller's office has been widely inconsistent through the years in the way it has applied the versions of the compensation law, resulting in payments to some people whose cases were far less clear-cut or worthy of compensation than Graves'.

Then-Comptroller Carole Keeton Strayhorn agreed several years ago to compensate 19 out of 21 of the folks who were caught up in the infamous 1999 Tulia drug bust, even though they'd received only general pardons, not pardons based on innocence, according to their Plainview attorney, Brent Hamilton.

The group included one person who served concurrent prison sentences when his probation was revoked on an unrelated drug charge. Strayhorn went so far as to seek an opinion from Texas Attorney General Greg Abbott in 2007 on whether the man qualified for compensation. The AG said he did.

And:

It should be clear, though, to all involved, that Anthony Graves deserves compensation for the hell he's been through at the hands of a reckless former Burleson County prosecutor and incompetent law enforcement.

Whether the solution is found in the comptroller's office, or the courts, or with state Sen. Rodney Ellis writing new legislation to tweak the law or perhaps expand the governor's pardoning authority, we must do right by Graves this time.

Gov. Rick Perry last week called Graves' false imprisonment a "great miscarriage of justice," and it was clear that Perry would help if he could.

Earlier coverage of the Anthony Graves' compensation claim for wrongful incarceration begins at the link.

FSC Chair Faces Confirmation Hearing

"Reject John Bradley," is the title of this morning's Houston Chronicle editorial.

Today the Texas Senate Nominations Committee takes up the question of reappointing Williamson County District Attorney John Bradley as presiding officer of the nine-member Texas Forensic Science Commission.

One of the Senate's responsibilities is to operate as a counterweight to the governor in the approval or rejection of his appointees. That counterweight is part of the advice and consent that the legislative branch provides the executive branch. It is essential that the Senate actively vet candidates and not just act as a rubber stamp.

Bradley, as this newspaper has consistently reported over the past year and a half, has obstructed real debate and instead proceeded to perpetuate the governor's political agenda. He has delayed hearings unnecessarily. He has shown disdain for members of the commission and witnesses. He has proven himself to be an enemy of science, refusing to ask that arson be subject to state-of-the-art scientific analysis.

To Rick Perry, Bradley's shortcomings are just fine. The governor signed off on the execution of Cameron Todd Willingham in 2004. Perry denied a stay despite legal briefings that showed the scientific theories used to send the Corsicana man to Death Row were suspect. Bradley canceled the meeting that would have explored those potentially embarrassing issues.

Texas' failure to address its administration of capital punishment and its irrational reliance on discredited arson science has subjected the state to deserved ridicule throughout the country.

And:

We believe John Bradley has shown himself unwilling to engage in true scientific inquiry. He does not merit reappointment and the Senate should reject him.

Peggy Fikac's Chronicle column also focuses on the confirmation hearing, "Williamson County DA on the hot seat."

Prosecutor John Bradley is used to asking the questions, but he'll be the one facing them as the Senate Nominations Committee considers his appointment as chairman of the Texas Forensic Science Commission.

Gov. Rick Perry appointed Bradley — who's Williamson County district attorney - as commission head in 2009. Bradley immediately canceled a hearing that then loomed on arson evidence in the high-profile Cameron Todd Willingham case, at a time when Perry faced a GOP primary challenge from U.S. Sen. Kay Bailey Hutchison.

Perry denied Willingham's request for a stay before his 2004 execution in the fire deaths of his children. Perry since has refused to release the clemency report he received. Hearst Newspapers has sued to try to obtain the documents.

Critics and some commission members have voiced concern over issues including the pace of the work on the Willingham case and Bradley's comments that Willingham was a "guilty monster."

The Nominations Committee will recommend whether Bradley's appointment should be confirmed by the full Senate. It would be highly unusual, though not unheard of, for senators to refuse to confirm.

Sen. Rodney Ellis, D-Houston, is among those planning to question Bradley during today's committee hearing. Ellis isn't a Nominations member, but senators generally are given the courtesy of participating. Ellis is among senators who have pushed for legislation to safeguard the justice system's integrity. He said he's for the death penalty but "it'd just be nice to get the right ones."

Ellis said the commission was created to help ensure that reliable evidence is used to "catch the bad guys" but that under Bradley, "the commission has invested most of its time and energy finding ways to avoid looking into problems and looking for loopholes to block the commission from doing what it was created to do."

"Williamson DA Bradley faces Senate questioning today," leads Jason Embry's First Reading blog at the Austin American-Statesman.

Bradley goes through confirmation process, TWIA board calls emergency meeting and some journalists say Perry has blocked them on Twitter.

The House is in at 11:30. The Senate is in at 1:30.

The Senate Nominations Committee today will consider the appointees to the Forensic Science Committee, including Chairman John Bradley, who is also the Williamson County district attorney. Gov. Rick Perry’s decision to put Bradley in charge of the commission in the fall of 2009 slowed the commission’s investigation into possible flaws in the investigation that led to the conviction and execution of Cameron Todd Willingham.

The Nominations Committee meets at 9 a.m. in E1.028.

Coverage of the Forensic Science Commission begins at the link.

Sentencing in Delaware

The Wilmington News Journal reports, "Delaware jury's votes in capital cases don't always sway judges."  It's by Sean O'Sullivan.

While at least two times in the past 20 years Delaware judges have imposed a death penalty when a jury has voted 7-5 in favor of putting a convicted killer to death, a review of recent death-penalty cases with close votes shows that Superior Court judges are far more likely to impose a sentence of life in prison without chance of parole.

On Wednesday, a Sussex County jury voted 7-5 in favor of putting Derrick Powell to death for the slaying of Georgetown Patrolman Chad Spicer in September 2009 following a police chase. Superior Court Judge T. Henley Graves is required to give that recommendation "appropriate weight," but is not bound by it, and many of his fellow judges have decided that such a vote is not a mandate to impose capital punishment.

As recently as last year, a New Castle County Superior Court judge imposed a life sentence on a man convicted in a double homicide although a jury voted 7-5 for his death.

And back in 1992, a Superior Court judge ignored a 10-2 ruling in favor of the death penalty to give a defendant life in prison after he was convicted of the robbery and murder of a 44-year-old woman on her way home from a store.

The variation in rulings by Delaware judges in death-penalty cases can perhaps best be explained by the fact that the rules governing how a judge is supposed to evaluate whether to impose a death sentence are vague, which legal experts said is by design. The law allows the judge to consider each case -- and each defendant -- on his or her own merits.

"There can be no exact formula for whether to impose life or death," said retired Superior Court Judge Bill Lee, adding it has to be left up to the judge.

Illinois Update

"Quinn: Archbishop Tutu lobbied for death penalty ban," is the title of Rick Pearson's report in the Chicago Tribune.

Gov. Pat Quinn said Thursday that South African Archbishop Desmond Tutu was among scores of people to weigh in with him as he considers what to do about a bill that would ban capital punishment in Illinois.

"I've gotten a lot of communication from people all over Illinois, all over America and indeed the world," Quinn said, citing a conversation with Tutu, the civil rights leader who fought apartheid and opposes the death penalty, and Sister Helen Prejean, the New Orleans nun whose story was the basis for the film "Dead Man Walking."

The governor faces a March 18 deadline to act on the death penalty ban. He could do nothing and allow it to become law. He could veto it outright.

The AP report is, "Quinn getting input on death penalty decision," via the Peoria Journal Star.

Illinois Gov. Pat Quinn is getting lots of input from both inside and outside the state about whether he should sign a bill that abolishes the death penalty.

Quinn said he was meeting Thursday afternoon with family members of murder victims. The Chicago Democrat said it's important for him to listen to a variety of groups on the matter as he makes his decision.

Quinn supports the death penalty, but has also kept in place the state's moratorium on capital punishment instituted by former Gov. George Ryan.

University of St. Thomas Law prof Mark Osler posts, "Why the Legislature Is Right and Lisa Madigan Is Wrong About the Death Penalty," at Huffington Post.

As Illinois Governor Pat Quinn continues to ponder a bill to abolish the death penalty, one document before him is a letter from Attorney General Lisa Madigan. In that letter, Madigan refers to several pending cases and urges the governor to veto that bill.

As a former prosecutor who now trains future prosecutors and works with family members of murder victims, I disagree with the Attorney General, even in the face of the gruesome circumstances she cites in her letter. The death penalty has failed in Illinois, and should not be resuscitated based on briefly-described anecdotes.

Madigan's argument, when closely examined, supports neither the interests of victims nor the imperatives of justice.

First, Madigan's underlying principle, that the most heinous murderers deserve no other sentence than death, is rooted in an ancient and wrong idea -- that the life of a murderer can be extinguished to somehow avenge the killing of someone innocent and dearly loved. People who have actually lost a sister, a brother, a parent to murder often reject this crude equivalence, and even find it offensive.

The more heinous and despicable the crime committed by the offender, the more these victims' family members wish to have nothing in common with him. They do not want to sink to his level, to replicate his actions by killing. That would move them a step toward who he is and a step away from who their loved ones were, people who loved and valued life, who were kind and good.

And:

The Attorney General's reliance on the most heinous cases certainly has political appeal, but it rests on two offensive ideas: That the life of the worst kind of killer equals that of an innocent, and that executing someone for these worst cases is worth the risk of killing a different kind of innocent -- the type who have been exonerated in this place, in our time, to the shame of us all who participate in the always-imperfect machinery of criminal justice.

Eric Zorn posts, "Defense attorney attacks Lisa Madigan's letter to Gov. Quinn," at his Chicago Tribune blog.

A response to Atty. Gen. Lisa Madigan from Charles "Chick" Hoffman, Assistant Defender in the Supreme Court Unit at the Office of the State Appellate Defender, and member of the board of directors of the Illinois Coalition to Abolish the Death Penalty:

I found it very revealing that Attorney General Madigan would cite the cases of three of my current or former clients — Daniel Ramsey, David Damm, and Cecil Sutherland — as the reason Governor Quinn should veto the bill repealing the death penalty.
 
As for Daniel Ramsey, he was an emotionally disturbed 18-year-old at the time he inexplicably raped and murdered his best friend and fatally shot his former girlfriend’s sister.  Although Daniel admittedly committed a horrible crime, he is clearly not among the “worst of the worst,” hardened criminals for whom the ultimate punishment of death should be reserved.

For his crimes, Daniel faced a mandatory minimum sentence of natural life imprisonment without parole.  That punishment would have more than fit the crime.
 
As for David Damm, his murder conviction rests almost entirely on the word of purported accomplice Bruce Burt — a crack cocaine addict, convicted felon, admitted “pimp,” and self-confessed murderer, who agreed to testify against Mr. Damm to save his own life.

It was Burt who alone killed the victim in that case, but was allowed to escape the death penalty and plead guilty to natural life in exchange for testifying against Mr. Damm.  Moreover, Burt drove the victim from Iowa (which does not have the death penalty) into Illinois (which does have the death penalty) where he brutally bludgeoned her to death.

So much for the deterrent effect of capital punishment.

And:

Sure, there are incorrigible criminals who commit horrific murders.  But as Sister Helen Prejean teaches us, the real question is not whether they deserve to die, but whether we deserve to kill them.

Given Illinois’ inherently arbitrary, racist, mistake-prone, corrupt death penalty process, the answer to that question is a resounding “no.”  “Too Flawed to Fix” isn’t just a slogan. Governor Quinn should sign the repeal bill and end the barbaric practice of capital punishment in Illinois.

Earlier coverage from Illinois begins at the link.

Did Kentucky Violate a Judge's Order in Obtaining LI Drug?

Today's Lexington Herald-Leader carries the AP report, "Lawyer seeks to stop Ky. from using execution drug."  It's written by Brett Barrouquere.

Kentucky appears to have violated a judge's order stopping all executions and preventing the state from taking any action to carry out a lethal injection by purchasing a key drug used in the process, an attorney for several death row inmates said Thursday.

Public defender David Barron wants to bar the state from ever using the 18 grams of sodium thiopental the state acquired this month.

Despite a national shortage of sodium thiopental, Kentucky bought enough of the fast-acting narcotic from a Georgia company to carry out three lethal injections. The packaging indicated the drug was made by Sandoz International GmbH, a European generics company, Kentucky Justice and Public Safety Cabinet spokeswoman Jennifer Brislin said. The packaging had an expiration date of May 2014.

In two filings in Franklin Circuit Court, Barron said that by even purchasing the drug, Kentucky violated the injunction handed down in September by Judge Phillip Shepherd. The Kentucky Supreme Court is reviewing a judge's order in one case regarding the state's lethal injection procedures and has halted all executions in the interim.

Barron also alleges that the chemical composition of sodium thiopental produced in Europe doesn't meet the standards for the drug set by the Food and Drug Administration.

State officials have repeatedly defended the lethal injection protocol, saying the U.S. Supreme Court upheld the process in a 2008 decision validating the use of three drugs to carry out an execution. Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown said the filings lack merit.

And:

Kentucky has executed three people since the reinstatement of the death penalty in 1976. Beshear had set an execution date in September for 55-year-old Gregory L. Wilson, who was condemned for the 1987 kidnapping, rape and murder of 36-year-old Debbie Pooley in northern Kentucky.

Shepherd stopped the execution and all others because of questions about how prison officials would handle tests for competency, sanity and mental retardation once an execution date is set. The state's high court is reviewing his order.

Kentucky Attorney General Jack Conway still has requests pending with the governor for execution dates for two other prisoners who have been on death row for more than 15 years.

Earlier coverage from Kentucky begins at the link.

Call for DoJ Investigation in Georgia Drug Acquisition

Today's Atlanta Journal-Constitution reports, "State accused of violating federal law in acquiring lethal injection drug."  It's written by Rhonda Cook.

The Georgia Department of Corrections circumvented federal law in trying to quickly secure a scarce drug used in lethal injections, according to a letter asking the U.S. Department of Justice to investigate.

The request was made in a letter to U.S. Attorney General Eric Holder by a lawyer representing a death row inmate from Cobb County. The letter quotes records  the state provided.

“The Georgia Department of Corrections appears to have violated the federal Controlled Substance Act,” John Bentivoglio, a former associate deputy U.S. attorney general in Washington, wrote in a letter Thursday.

Bentivoglio describes extraordinary steps Corrections took to get the sedative thiopental, a scheduled III non-narcotic controlled substance, when a shipment for several states, including Georgia, was held by U.S. Customs in Memphis last summer.

The letter said Corrections is not registered with the federal government to import drugs and the agency did not “submit a declaration to the Drug Enforcement Administration when GDC imported thiopental last year.

“The GDC’s actions call into question the legality and integrity of the process the department uses to administer lethal injections,” Bentivoglio wrote. “Given these potential violations of federal law and the implications they raise with respect to pending executions in Georgia, I respectfully urge you to direct appropriate agencies within your department to conduct a prompt and thorough investigation of these issues.”

The Department of Justice declined comment Thursday afternoon.

No inmates are currently scheduled for execution in Georgia.

And:

According to Bentivoglio's letter sent Thursday about the Georgia case and the accompanying documents, state prison officials became anxious when Customs officers in Memphis held a large shipment from Dream Pharma Ltd., a London company, when it arrived last June 28. The shipment was held pending the Food and Drug Administration's approval.

On July 14 the director of procurement for Corrections asked Dream Pharma in an e-mail if the state could buy thiopental directly from the business. Dream Pharma said it could.

An assistant commissioner told the procurement chief to “make it happen. Get a good quantity but ensure it has an extended shelf life!” according to the letter.

Correction wired Dream Pharma $340.41 on July 21 for 50 vials of thiopental to be shipped to the Georgia Diagnostic and Classification Prison in Jackson, which is the location of Death Row. According to the attorney, Corrections documents show the invoice and the shipping label “identified the contents as ‘pharmaceuticals not restricted.’”

"It does look like they did an end-run around the requirements,” Bentivoglio told The Atlanta Journal-Constitution. “They were either negligent in not knowing their responsibility or it was purposeful. Either way, on the face of it, it looks unlawful.”

"Death row inmate asks DOJ to investigate," is the title of Greg Bluestein's AP report, via the Macon Telegraph.

A Georgia death row inmate's attorneys asked the Justice Department on Thursday to launch an investigation into whether state corrections officials violated federal law to secure a supply of a key death penalty drug.

The letter to U.S. Attorney General Eric Holder said the Georgia Department of Corrections did not register with the Drug Enforcement Administration when it imported its supply of sodium thiopental, a lethal injection sedative that has been in short supply even before the drug's sole U.S. manufacturer decided last month to stop producing it.

It also said the state should have filed a declaration with federal regulators when it imported the drugs from a British supplier in July 2010.

"The United States has strict drug import rules for a reason: To ensure drugs used for legitimate purposes are not adulterated, counterfeit, or diverted into the illicit market," said John Bentivoglio, who is representing death row inmate Andrew Grant DeYoung.

Department spokeswoman Kristen Stancil said the agency is reviewing the letter but offered no other response. Officials have said Georgia's stockpile of the drug is sound. And state attorneys have argued in court that similar arguments involving other death row inmates amount to a backdoor attempt to commute their sentences.

The call for an investigation is the latest in the legal assault scrutinizing Georgia's lethal injection procedure. A federal judge rejected a lawsuit earlier this month from another death row inmate who claimed the state's stockpile of sodium thiopental had expired and that using it would cause him to die in excruciating pain.

A news release from the law firm Skadden, Arps, representing DeYoung, is below:

Georgia Department of Corrections Violates Federal Law in Desperate Effort
to Get Drugs for Executions

U.S. Attorney General Asked to Investigate the Violations and, if Confirmed,
Confiscate Illegal Drugs

The Georgia Department of Corrections has likely violated federal law by unlawfully importing sodium thiopental into the United States, according to new evidence uncovered by lawyers representing a death row prisoner in Georgia. The evidence, which is outlined in a letter that was delivered to Attorney General Eric Holder today, depicts a desperate attempt by the corrections agency to circumvent the law to secure new supplies of thiopental from foreign sources in the face of a shortage of the drug that is used in lethal injection executions. The letter (attached) calls on the Attorney General to investigate the apparent violations of federal law and, if violations are found, to confiscate the unlawfully imported drugs from the GDC. 
 
Records obtained by lawyers representing Andrew Grant DeYoung from the GDC under the state's Open Records Act indicate the GDC is not registered with the DEA as an importer and did not file a declaration when it imported drugs from a distributor in the United Kingdom in July 2010.  The documents also indicate that the GDC is not registered to possess Schedule III non-narcotic substances – the class of drugs that includes thiopental.  Federal law imposes tight controls on the importation of controlled substances, requiring importers to obtain a registration from the U.S. Drug Enforcement Administration and to file declarations at the time of importation. If the GDC failed to obtain an import registration or other import authority, then they are in clear violation of federal law.

"The United States has strict drug import rules for a reason: to ensure drugs used for legitimate purposes are not adulterated, counterfeit, or diverted into the illicit market," said John Bentivoglio, partner, Skadden, Arps, Slate, Meagher & Flom LLP and former Associate Deputy Attorney General. "The GDC appears to have resorted to unlawful means to obtain thiopental, raising serious questions about the legality and integrity of the lethal injection procedure in Georgia," he added. 

GDC's efforts to obtain thiopental directly from the UK distributor, Dream Pharma, followed problems the agency had in getting another shipment of thiopental through U.S. customs.  The documents obtained by DeYoung's lawyers indicate the prior shipment was held up by Customs in Memphis, Tennessee, and that the agency considered using a contact within the Federal Bureau of Investigation to help get the shipment through. 

"These are not mere record-keeping violations.  The import registration and declaration requirements are at the heart of federal controlled substance laws, and the apparent violations we have uncovered warrant a prompt and thorough investigation,” said Mr. Bentivoglio.

The letter to U.S. Attorney General Eric Holder is in Adobe .pdf format. 

Earlier coverage of the Georgia drug begins at the link; more on and the FDA's position, also linked.  Related posts are in the lethal injection index.

The Lethal Injection Fight in Arizona

Today's Arizona Republic carries the report, "Arizona Death Row inmates' lawyers fight import of lethal-injection drug."  It's by Michael Kiefer.

Attorneys representing Death Row prisoners in Arizona and two other states have asked U.S. Attorney General Eric Holder to reject a request from 13 state attorneys general for help acquiring a drug used in executions by lethal injection.

And:

Attorneys Bradford Berenson and Coleen Klasmeier, and Dale Baich, from the Federal Public Defender's Office in Phoenix, recently sued the FDA to stop the agency from allowing states to import thiopental for executions. The lawsuit alleges that it is illegal to import the drug because it is not subject to FDA quality and safety standards.

On Jan. 25, the attorneys general of Oregon, Alabama, Colorado, Florida, Mississippi, Nevada, Utah, Wyoming, Delaware, Idaho, Missouri, Tennessee and Washington wrote Holder to note the unavailability of the drug and to ask him to help identify appropriate sources for thiopental or to make it available to states that use lethal injection.

In response, the defense attorneys last week sent Holder a letter asking him to deny that request on the grounds that the drug is not FDA-approved and because their litigation challenging the FDA's import policy is pending.

Their lawsuit was filed this month on behalf of three Arizona Death Row prisoners and others in Tennessee and California. Two of the Arizona plaintiffs are scheduled for execution within the next six weeks, and the state has requested an execution date for the third. All three states obtained thiopental from a small pharmaceutical supplier in London.

As recently as November, FDA spokesmen took the position that the drug could not be legally imported, and an FDA deputy commissioner told British government officials that "there are no approved or permitted foreign sources of sodium thiopental."

Despite those statements, documents obtained by The Arizona Republic through the Freedom of Information Act show FDA officials allowed a delivery to Arizona for an October execution, expediting the shipment by "running sweeps" through a federal database to make sure it was not delayed.

Previously, the FDA had detained the drug - sometimes for months - in Memphis, where it first arrived from abroad. In those cases, the FDA claimed the drug was "misbranded."

But on Sept. 27, at the request of state Department of Corrections Deputy Director Charles Flanagan, Phoenix-based FDA official David Thomas notified FDA personnel in New Orleans, Memphis and at FDA headquarters that Arizona was receiving a shipment from Great Britain.

"These pharmaceuticals are needed to carry out an execution here in Arizona and are not for public consumption," Thomas wrote.

Earlier coverage of the letter from state attorneys general, the imported drugs, the Arizona excution, and the FDA's position begin at the links.  Related posts are in the lethal injection index.

Ohio Prepares to Use Pentobarbital

Alan Johnson writes, "Use of new execution drug isn't what scares condemned man," for today's Colubus Dispatch.

Condemned killer Johnnie Baston says he isn't worried about being the first person in the U.S. to be executed using a new drug.

"New drug, old drug, it doesn't matter," said Baston, who is scheduled to be lethally injected March10. "The whole process should be eliminated."

But Baston, 37, who was sentenced to death for the execution-style slaying of Toledo store owner Chong Mah during a robbery on March 21, 1994, acknowledges that he is "very scared" to die.

"The fact that I'll be placed on a table and poisoned to death, I can't find any comfort in that. It's kind of a sick feeling."

Baston would be the first person executed in the U.S. using only pentobarbital, a fast-acting barbiturate. Ohio and most other states have used sodium thiopental for lethal injections, but the U.S. manufacturer stopped making the drug.

And:

Mah's family opposes the death penalty and has asked that Baston not be executed. However, the Ohio Parole Board voted 9-0 against granting clemency, concluding that Baston's failure to accept responsibility for the crime, his criminal history and Mah's shooting at point-blank range "outweigh their personal opinions regarding the death penalty."

Gov. John Kasich has not decided on Baston's clemency request.

Oklahoma has used the drug as part of its three-drug lethal injection cocktail.  Ohio uses a single-drug lethal injection.  The manufacturer of Pentobarbital has asked that it not be used for executions; more at the links.

 

Louisiana Judge Refuses to OK State's Lethal Injection Procedure

The Baton Rouge Advocate reports, "Judge won’t OK lethal injections."  It's written by Joe Gyan Jr.

A judge in Baton Rouge ruled Tuesday it would be premature to validate Louisiana’s lethal injection procedure for future executions because the lone U.S. manufacturer of a key drug used by the state has ended its production.

And:

State District Judge Mike Caldwell cited that development in denying a state Department of Public Safety and Corrections request that he validate Louisiana’s lethal injection procedure for future executions.

Department of Public Safety and Corrections attorney Wade Shows, who argued in court Tuesday that there is no evidence sodium thiopental will “never ever become available,” said afterward the state 1st Circuit Court of Appeal may be asked to look at the case.

Attorney Michael Rubenstein, who represents condemned killer Jimmy Ray Williams, of Baton Rouge, said after the hearing that sodium thiopental is the “pain-killer” used in the state’s three-drug combination.

Sodium thiopental renders the condemned inmate unconscious.

Hospira is the only sodium thiopental maker approved by the U.S. Food and Drug Administration.

There are other, similar sedatives on the market, but substituting one drug for another would require new laws or lengthy administrative processes in some states, including Louisiana.

And:

Caldwell’s ruling came in a lawsuit that condemned killer Nathaniel Code, of Shreveport,  filed against the Department of Public Safety and Corrections in late 2009.

The lawsuit claimed the state failed to follow proper administrative procedures before putting its lethal injection procedure in place.

In early 2010, the department essentially countersued every Louisiana death-row inmate, asking Caldwell to declare the state’s lethal injection rules and regulations meet statutory and constitutional muster.

There are 84 inmates on death row in Louisiana. None has a scheduled execution date.

Earlier coverage from Louisiana begins at the link.

Kentucky Acquires Lethal Injection Drug; Source Disputed

"State acquires key drug used in executions," is the title of Bill Estep's report in today's Lexington Herald-Leader.

The state has acquired enough of a key drug used in executions to put three condemned inmates to death.

Kentucky and other states have had to look for other sources of the drug, an anesthetic called sodium thiopental, after the sole U.S. maker said in January it would not resume production.

The Justice and Public Safety Cabinet announced Tuesday the state had bought 18 grams of the drug from CorrectHealth, a Georgia correctional health care company.

Under state rules, each execution requires 3 grams of sodium thiopental, with three additional grams ready as a backup, said Jennifer Brislin, spokeswoman for the cabinet.

That means the 18 grams the state got at a price of $1,616.83 is enough to execute three inmates.

But because the state now has some of the drug does not mean executions will resume soon.

That's because an injunction remains in place barring the state from executing anyone.

It's also likely there will be a challenge to the use of the sodium thiopental the state has gotten because it came from outside the U.S.

The drug was made by Sandoz GmbH, an Austrian company, according to the Justice and Public Safety Cabinet.

And:

The sodium thiopental the state got from the Georgia company won't expire until May 2014, which could provide time to resolve potential challenges.

Gov. Steve Beshear directed J. Michael Brown, secretary of the Justice and Public Safety Cabinet, "to conduct an exhaustive and comprehensive search for any and all sources of sodium thiopental, both domestically and abroad," according to the statement from the cabinet.

Kentucky took delivery of the 18 grams from Georgia last week after checking in several other states.

The article also notes:

Marija Mandic, a spokeswoman for Sandoz, which made the sodium thiopental Kentucky got by way of Georgia, says the company has advised its subsidiaries not to export or sell the product to the U.S., or to supply it to distributors or others who night sell it in the country, Mandic said.

"Kentucky gets supply of key execution drug," is the AP report by Brett Barrouquere, via the Chicago Tribune.

Kentucky has acquired a key drug used in lethal injections, but the state still can't schedule any executions because of a judge's order.

Justice and Public Safety Cabinet spokeswoman Jennifer Brislin told The Associated Press on Tuesday that 18 grams of sodium thiopental arrived Feb. 14, giving the state enough of the drug to carry out three executions.

And:

The packaging indicated the drug was made by Sandoz International GmbH, a European generics company, Brislin said, with an expiration date of May 2014.

Marija Mandic, a spokeswoman for Sandoz, based in Hozkirchen, Germany, said the company does not market sodium thiopental in the U.S. Instead, the company is under contract to a British concern that sells to Archimedes Pharma Limited, a British company.

Archimedes Pharma makes the drug but said it does not export it to the U.S. and "does not have information on specific end purchasers or users of its products."

Sandoz has advised all of its subsidiaries not to export or sell the product to the U.S. or supply it to distributors or others who may sell it in the country, Mandic said.

Kentucky said it paid $1,616.83 to CorrectHealth, a Stockbridge, Ga., which specializes in prison health care. But Dr. Carlo Musso, who runs the company and has helped Georgia with executions, denied selling the drug to Kentucky.

"I don't know where it came from. That is completely in error. We have not participated in that," he told AP.

Musso said his company has never had any sodium thiopental and never sold any.

"We're not the middle man. We've been asked to do that, and I've said, quite frankly, 'No, we're not going to do that.' We'll send them off to other suppliers, and other departments of corrections," Musso said.

And:

Shipping and purchase documents obtained from the state showed Kentucky bought the drug from CorrectHealth. Musso did not immediately return a second call from The Associated Press.

Musso told the New England Journal of Medicine in 2006 that he felt an obligation not to abandon inmates in their last moments. In the interview, Musso said in the case of executions, doctors aren't deciding who lives and dies, so he treats the procedure as an end-of-life issue.

"It just happens that it involves a legal process instead of a medical process," Musso told The New England Journal of Medicine. "When we have a patient who can no longer survive his illness, we as physicians must ensure he has comfort. (A death-penalty) patient is no different from a patient dying of cancer -- except his cancer is a court order."

Earlier coverage from Kentucky begins at the link; there's also earlier coverage of the lethal injection challenge.

Eyewitness ID Reform Measure Passes House Committee

"Eyewitness ID legislation aims to prevent conviction of the innocent in Texas," is the Dallas Morning News report written by Erin Mulvaney.

A bill meant to streamline eyewitness identification procedures, approved Tuesday by a House committee, would bring the state a step closer to fixing a key problem with the criminal justice system, advocates said.

Under the legislation, police departments would have to adopt uniform standards for eyewitness identification.

The House Criminal Jurisprudence Committee approved the bill unanimously after hearing from criminal justice officials and emotional testimony from half a dozen exonerees from Dallas, who spent years in prison for crimes they did not commit. The measure will now go to the full House for consideration.

“This bill has special importance for Dallas County, has tremendous public interest and support,” said Rep. Will Hartnett, R-Dallas. “It deserves a head start to get it passed and out of the House.”

The exonerees made emotional appeals to lawmakers. James Giles, a Dallas man exonerated in 2007, told the lawmakers that he was picked out of a lineup and accused of rape, although he had never seen the victim before. He spent 10 years in prison and 14 years as a registered sex offender on parole.

“[The victim] picked me out of all the guys in the photo book she was given,” Giles said. “The system will work, but it takes one person to say what is right and, believe you me, everyone will follow.”

Policies for gathering eyewitness identification would have to be based on scientific research on memory, along with relevant policies and guidelines developed by the federal government and other states. Policies would have to address the selection of photographs, lineup filler photographs or participants and instruction given to witnesses. The Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University would create a model policy to be distributed to local law enforcement agencies.

Texas has had 42 exonerations, 38 in cases that had been based on false eyewitness identification. The tally accelerated when the Legislature created a clear pathway for requesting DNA testing in 2001, said Edwin Colfax, a project manager at the Task Force on Indigent Defense.

Four states — Ohio , North Carolina , New Jersey and Wisconsin — have implemented legislation similar to the eyewitness identification bill.

Criminal Court of Appeals Judge Barbara Hervey, a member of an expert panel that was commissioned by the Legislature in 2009 to study the causes of wrongful convictions and make recommendations, called the bill a great step forward.

And:

Cory Session, the brother of Timothy Cole, who died in prison in 1999 and was posthumously exonerated, and for whom the panel studying wrongful convictions was named, warned that without the bill, the criminal justice system will continue to make too many mistakes.

“It is time for us to move forward and get out of the dark ages with wrongful convictions,” said Session, a policy director for the Texas Innocence Project.

He suggested enforcing a procedure used by the Dallas Police Department for identification — a sequential, double-blind lineup. In this process, the administrator does not know which participant is the suspect and presents suspects to a witness one by one.

The method has been proved more effective in other states, Session said.

The committee also discussed two other bills related to preventing convictions of the innocent. One would require law enforcement officers to record interrogations for violent, serious crimes. The other addresses writs of habeas corpus, which order that people in custody be brought before a court. The proposed measure would extend the limit for the writs filed under certain circumstances.

The AP report, by Sommer Ingram is,  "Bill to reduce wrong convictions passes committee."  It's via the Houston Chronicle.

A Texas House committee advanced legislation Tuesday that would require law enforcement agencies to standardize the way eyewitnesses identify suspects in an effort to reduce the number of wrongful convictions.

The House Criminal Jurisprudence Committee voted to require agencies to adopt a written policy based on a model or create something similar to determine how they conduct photographic or live lineups. Currently only 12 percent of agencies in the state have written policies.

To avoid unintentionally influencing the witness, the person administering the lineup would be prohibited from knowing who the suspect in the case is. The procedures would be written based on reliable research on eyewitness memory and relevant policies developed by other governments and agencies.

Advocates say the issue is one of the most important in criminal justice, and lawmakers have long seen a need for reform in this area of the system. Texas leads the nation in the most convicts exonerated by DNA evidence, with more than 40 people released from prison since 1994.

Seven men who spent decades imprisoned for crimes they didn't commit testified before the committee in support of the legislation. They said they wouldn't have lost years of their lives behind bars if the lineup process had been conducted differently.

And:

The bill's author, Rep. Pete Gallego, D-Alpine, said mistaken eyewitness identification is the leading cause of wrongful convictions and amending the identification process is a crucial step to fixing the problem. Ohio, North Carolina, New Jersey and Wisconsin have implemented similar reform legislation.

"The idea is to establish a fairly uniform way of doing things across the state, whether in a small town or a large county, so we have some understanding of this process," Gallego said.

Gallego said if an agency doesn't comply with the law, its non-compliance could be acceptable as evidence in court but does not bar admission of the eyewitness identification testimony.

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The article also notes that Governor Perry has pledged to sign the bill.

Details of HB 215 are available from Texas Legislature Online.

The other two bills considered by the Committee, also recommended by the Timothy Cole Advisory Panel on Wrongful Convictions, are HB 219 and HB 220.  Both bills are also sponsored by Gallego.  HB 219 deals with electronic recording and admissibility of certain custodial interrogations.  HB 220 deals is procedures for applications for writs of habeas corpus based on relevant scientific evidence.  Those two bills remain in the Committee, but are likely to be voted out at its next meeting.

Earlier coverage begins at the link. More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

TDS on the Execution of Tim Adams

Texas Defender Service has issued the following statement on the execution of Tim Adams:

Mr. Adams’s case presented a unique and powerful opportunity for the Board of Pardons and Paroles and Governor Perry to show mercy.
 
It is difficult to conceive of a more appropriate case for clemency than that of Mr. Adams. Mr. Adams served honorably in the United States military and held steady employment. He took responsibility for his actions by pleading guilty at trial. He had no criminal history before his crime, and none after. In his eight years on death row, Mr. Adams had, without exaggeration, been a model prisoner. He had not a single disciplinary write-up, for any reason.
 
Mr. Adams sought clemency because the members of his family—who also were victimized by Mr. Adams when, in a suicidal state, he caused them to lose a grandchild, nephew, and brother—did not want to suffer another loss. His family sought nothing more than a commutation of his sentence to life without parole; he would have spent the rest of his life in prison.
 
The execution of Mr. Adams has inflicted needless pain on the Adams family, without any benefit to the State of Texas. No family should be made to suffer such an ordeal as we collectively have imposed upon them tonight.
 
Mr. Adams’s criminal act was aberrational.  His life was worth saving.  The fact that the Board of Pardons and Paroles and Governor Perry were unwilling or unable to see that is a travesty, for it reflects that our society has abandoned its belief in the possibility of redemption and the virtue of mercy.
 
The family of Timothy Wayne Adams watched their son die tonight, nine years and two days after losing their grandson.  No one will wake up tomorrow better off because of tonight's execution.

Today's Houston Chronicle carries, "Houston man executed for killing son."  It's written by Allan Turner.

As lethal drugs pumped into child-killer Timothy Wayne Adams' veins Tuesday night in Texas' teal-green deathhouse, his sister Stacey Adams — watching from a witness room just feet away — collapsed in convulsive sobs.

"God is still in control," her father, retired Houston firefighter Columbus Adams, told her as he supported her in his arms until a wheelchair could be rolled into position. Adams' mother, Wilma Adams, muttered, "He's going to sleep. He's going to sleep. He's going to a better place. He's going to get to see Jesus."

Adams, put to death for the February 2002 murder of his 19-month-old son, offered no final statement.

He nodded to the witness room containing his family, who had made public pleas that his life be spared. Then, as the poisons began to flow, he breathed heavily and closed his eyes.

The drugs were administered at 6:21 p.m. Adams was declared dead 10 minutes later. He was the 466th killer to be put to death since the state resumed executions in 1982, and the second this year.

Earlier coverage begins with the preceding post.

Texas Execution

Texas carried out its second execution of the year, tonight, in Huntsville.  It was the Texas 466th execution since 1982.  Texas has far and away the busiest execution chamber in America, accounting for more than 37% of the post-Furman executions in the nation.

"Texas executes Houston man for killing his son," is Juan Lozano's AP filing on the execution of Tim Adams.  It's via the Houston Chronicle.

A Houston man convicted for the 2002 fatal shooting of his 19-month old namesake son after an hours-long standoff with police was executed on Tuesday.

Timothy Wayne Adams received a lethal injection for the death of his son, Timothy Jr., who was shot twice at close range by his father after the standoff at his family's apartment.

The execution took place about 35 minutes after the U.S. Supreme Court rejected a final appeal from Adams.

Adams, 42, declined to make a final statement, shaking his head no when asked if he had any final words.

Before the lethal drugs were administered, he mouthed some words to his parents and brother and sister, who witnessed the execution. Adams kept his gaze on his family members and never looked at Timothy Jr.'s mother and her family, who watched the execution from a different room than his relatives.

He let out a series of gasps after the lethal injection took effect. Ten minutes later, at 6:31 p.m. CST, he was pronounced dead.

Adams' sister loudly sobbed and at one point had to be helped into a wheelchair.

Adams' family and church community had sought a commutation of the death sentence; a plea rejected by the Texas Board of Pardons and Paroles.  Earlier coverage of the Adams case begins at the link.

It was the eighth execution in the nation in 2011; the 1,242 execution in America since 1977.

Texas has three more executions scheduled in 2011, however, all are after the date that TDCJ has said its stock of sodium thiopental expires.

The Sixth Circuit Streak

"U.S. 6th Circuit Court of Appeals on 0-15 losing streak," is the title of Dan Horn's report for the Cincinnati Enquirer.

The U.S. 6th Circuit Court of Appeals in Cincinnati is one of the most powerful courts in the nation, but these days it's suffering through a major slump.

The court owns the longest losing streak in the country over the past two years at the U.S. Supreme Court, which reviews decisions and corrects mistakes made by the nation's top appeals courts.

The Supreme Court has examined 15 rulings from the 6th Circuit since 2008 and has thrown out every one of them.

In each case - from death penalty appeals and tax disputes to disagreements over election law - the Supreme Court found critical errors that tainted the 6th Circuit's decision.

"It's a bit surprising to see 15 reversals in a row," said Michael Solimine, a University of Cincinnati law professor who studies the federal courts.

Some 6th Circuit judges are surprised, too. But they say they're doing their best and are trying to take the rejection in stride.

"Getting reversed by the Supreme Court, some people these days think, is a badge of honor," said Gilbert Merritt, a semi-retired senior judge and one of the 6th Circuit's most liberal members. "It depends on your point of view."

The 6th Circuit's performance matters because the court handles about 2,500 federal appeals a year from Ohio, Kentucky, Tennessee and Michigan - the vast majority of which never make it to the Supreme Court.

The consequences of getting those decisions wrong can be severe and, in some cases, can literally mean the difference between life and death.

Three of the 15 overturned cases involve convicted killers who were spared execution by the 6th Circuit only to have the Supreme Court send them back to Death Row.

Two others were denied by the 6th Circuit but later won reprieves from the Supreme Court.

The capital cases include:

Cone v. Bell (Tenn.): A death row inmate asked for a new trial, but the 6th Circuit concluded the claims he raised were not subject to federal court review.

Harbison v. Bell (Tenn.): The 6th Circuit said a federally-appointed lawyer could not represent a death row inmate in state clemency proceedings.

Bobby v. Bies (Ohio): A convicted killer claimed he could not be executed because the Supreme Court outlawed the execution of the mentally retarded. Prosecutors wanted a full hearing to evaluate his mental state, but the 6th Circuit said no because he already had been found mentally retarded and a new hearing would amount to double jeopardy.

Smith v. Spisak (Ohio): The 6th Circuit overturned a death sentence after concluding the convicted killer's lawyers performed poorly and the judge made mistakes during the trial.

Bobby v. Van Hook (Ohio): The 6th Circuit threw out the death sentence of a convicted killer after deciding he did not receive effective assistance from his lawyers.

More on the British Import

"British death drug 'failed to work'," is the UK Press Association report, via Google News.

A third American prisoner died in agony after an anaesthetic supplied by a British company failed to work properly, it has been claimed.

Dream Pharma, a small company run from the back of the Elgone Driving Agency in Horn Lane, Acton, west London, is understood to have supplied the anaesthetic sodium thiopental used in the US executions of Emmanuel Hammond, Brandon Rhode and Jeffrey Landrigan.

A claim has now emerged that Landrigan, a convicted murderer, kept his eyes open after receiving a lethal injection - an apparent sign that the anaesthetic had not worked.

Dale Baich, a lawyer who witnessed the execution in Arizona last October, made the disclosure in a sworn statement for legal action charity Reprieve's pending High Court action.

Reprieve claims the other two prisoners also kept their eyes open and has written a letter to the Medicines and Healthcare Products Regulatory Authority (MHRA) asking them to recall all of Dream Pharma's sodium thiopental.

The charity said that if the MHRA does not respond by the end of Monday, they will file action against them in the High Court the following day.

Reprieve investigator Maya Foa said: "Why does a regulator exist if not to prevent British drugs failing or, worse, causing pain to patients?

"It is difficult to see how much more evidence the MHRA needs in order to recall a faulty drug. If Dream Pharma's sodium thiopental is not taken out of circulation, more prisoners are likely to die in agony and the MHRA will bear responsibility for their ordeal."

New Europe reports, "Mother urges EU to ban export of drugs used in executions."  It's written by Andy Carling.

When Brandon Rhode was executed in  Jackson State Prison in Georgia, US, he was killed by drugs manufactured in Austria and sold by a British company. Experts say that the drug, an anaesthetic called sodium thiopental, may not have been stored properly, leaving him conscious, causing an “agonising” death, that took 14 minutes. The drugs were sold by a small company, Dream Pharma, operating above a driving school in London. Their website says they supply discontinued and hard to find products to anywhere in the world. So far, their drugs have been used in three executions and US prisons are believed to have bought enough for 82 more executions.

Brandon’s mother, Patches Rhode and his brother, Josh Ladner, visited London and Brussels, asking the EU to live up to it’s principles and halt sales. They spoke to New Europe.

You say that the drugs used in the execution may not have been handled properly?
Patches: We don’t know the reason they were not effective, just that they weren’t effective, that’s what medical experts tell us.
Josh: We’ve also got medical experts saying, after a toxicology report, that says the dose was large enough to make him sleep, but he wasn’t asleep, so it may have been the storage, or whatever, that rendered them useless.

Earlier coverage of the imported drugs from Dream Pharma begins at the link.  Related posts are in the lethal injection index.

Hospira & Florida

"Company urged Florida not to use its drug in execution 'cocktail'," is the title of Anthony Colarossi's report for the Orlando Sentinel.

For years, Illinois-based Hospira Inc. worried about its drugs being used across the country for lethal injections. So, a company spokesman says, Hospira sent letters to all the states annually — including Florida — stating its opposition to the drugs' use to carry out death sentences.

But the states, including Florida, continued using at least one Hospira product in the three-drug "cocktail" approved for executions.

There was nothing illegal about that, but their continued use of Hospira products to execute inmates ultimately compelled the company last month to announce its decision to stop all production of its trademarked anesthetic, Pentothal. The supplies that states already have on hand are set to expire this year.

"Hospira provides these products because they improve or save lives and markets them solely for use as indicated on the product labeling," wrote Kees Gioenhout, Hospira's vice president of Clinical Research and Development, in a letter sent to Ohio in March. "As such, we do not support the use of any of our products in capital punishment procedures."

And:

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said she was not aware of the Hospira letter being sent to her department. Texas still has a small amount of Pentothal on hand, but, like Florida, that large death-row state is still reviewing alternative drugs for future executions.

A number of state attorneys general have written to U.S. Attorney General Eric Holder asking for the federal government's assistance in possibly obtaining overseas supplies of sodium thiopental, according to Richard Dieter, executive director of the Death Penalty Information Center.

But Dieter expects most states will look at pentobarbital and other substitutes. In addition, he said a group of death-row inmates from three states has challenged the federal Food and Drug Administration for failing to review the quality of lethal-injection drugs coming from overseas.

As for the letters sent out by Hospira, Dieter said they signal that many in the health profession — drug manufacturers, doctors "or even the FDA" — want to distance themselves from the death penalty.

"It may not be the best public relations for a health company to be associated with a killing drug," he said.

Though the Hospira letters probably had no binding effect, Dieter said "they do symbolize the growing sentiment that the U.S. is isolated in its use of the death penalty and that others are willing to take concrete steps, even to their economic disadvantage, to discourage such use."

Earlier coverage of Hospira, the states' letter to the U.S. Attorney General, FDA litigation, and Texas expiring stock, at the links. The maker of Pentobarbital has also requested that the drug not be used for executions.  Related posts are in the lethal injection index.

Tim Adams Case at Supreme Court

Today's Houston Chronicle reports, "Child-killer's lawyers turn to high court."  It's written by Allan Turner.  Here are extended excerpts:

With their client just a day away from execution, lawyers for Houston child killer Timothy Wayne Adams said Monday they would turn to the U.S. Supreme Court in a last-effort to save the former security guard's life.

Monday's pledge to take the 42-year-old death row inmate's case to the high court came after state-level efforts to stop today's execution failed.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected a request that Adams' sentence be commuted to life in prison.

The Texas Court of Criminal Appeals also dismissed an appeal that argued, in part, that Adams would not be a future danger because he likely would not father another child behind bars.

To assess a death sentence, Texas jurors must agree unanimously that a killer represents a "continuing threat to society" and that no mitigating circumstances justify life imprisonment. Less than a unanimous vote on those so-called "special issues" results in an automatic life sentence.

And:

Texas Defender Service lawyer Katherine Black said a petition asking the Supreme Court to review the case would be filed today. Some, if not all, of the issues raised in the most recent state-level appeal will be included, she said.

In the unsuccessful appeal to the Texas Court of Criminal Appeals, David Dow, a Texas Defender Service lawyer and University of Houston law professor, argued that a 2007 ruling in a Beaumont baby killing should be applied retroactively to Adams' case.

In the Beaumont case, Kenisha Berry was convicted of murdering her newborn son and sentenced to death.

The Texas Court of Criminal Appeals found that evidence showed Berry had proved dangerous only to her children whom she wished to conceal from a favorite mate. The low likelihood of her becoming a parent while in prison made it "unlikely" she would constitute a future danger, the court found in agreeing to commute her sentence to life in prison.

Dow argued that Adams' violence was limited to his son, and that his prison record — the killer arrived on death row in April 2003 — has been exemplary.

"For the same reasons that the finding of future dangerousness was overturned in Berry, this court should overrule the finding of future dangerousness in Mr. Adams' case," Dow said.

Dow also argued in the petition that the trial judge's instructions to the jury in the punishment phase were misleading, and that at least one juror would have supported sparing Adams' life.

A transcript of Judge Jeannine Barr's punishment phase charge to the jury indicates she told jurors a unanimous verdict on the two special issues was necessary to sentence Adams to death.

She also told jurors at least 10 jurors had to concur to find that the killer was not a continuing threat or that mitigating circumstances justifying life in prison existed.
Juror unaware of issue?

South Texas College of Law professor Ken Williams said Texas law requires at least 10 juror votes to opt for assessing a life sentence. But all it takes is one vote favoring life to essentially create a hung jury. A hung jury in a capital case's punishment phase automatically results in a life sentence.

Dow said juror Rebecca Hayes was unaware that her dissent on the death vote could have saved Adams' life.

"Houston man who killed son set to die Tuesday," is the AP report filed by Juan Lozano.  It's via the Austin American-Statesman.

Timothy Wayne Adams is scheduled for execution Tuesday for the death of his son, Timothy Jr., who was shot twice at close range by his father after a police standoff at his family's apartment.

His attorneys planned a final appeal to the U.S. Supreme Court. Last week, the Texas Court of Criminal Appeals dismissed a request to review his case.

More on the case at the Timothy Wayne Adams website.  Earlier coverage of his case begins at the link.

If Adams is executed, it would be the second in Texas this year, the 466th Texas execution since 1982.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.  Recent exoneree Anthony Graves is scheduled to be a guest on the program.

 

Board of Pardons & Paroles: No Mercy

The AP report this afternoon is, "Parole board rejects plea from man to die Tuesday," by Michael Graczyk.  It's via the Fort Worth Star-Telegram.

The Texas Board of Pardons and Paroles has unanimously rejected a clemency petition from a convicted killer set to die next week for the shooting death of his 19-month-old son.

More than 90 clergy members from around the state had signed a letter to Gov. Rick Perry and the parole board, appealing for clemency for Timothy Wayne Adams.

The seven-member board Friday voted 7-0 twice - first against a 120-day reprieve and then against a recommendation to commute the 42-year-old Adams' sentence to life.

Earlier coverage of Tim Adams' compelling case for clemency begins at the link.

 

Nebraska's Lethal Injection Drugs

Today's Lincoln Journal Star reports, "Prison officials respond to lawmakers' request for information on lethal injection drug."  It's written by Kevin O'Hanlon.

The state Department of Correctional Services has responded to a letter from three state senators asking for details about the department's recent purchase from an Indian company of one of the drugs used in Nebraska's lethal-injection protocol.

The department recently bought such a large quantity of a drug used to kill death-row inmates that it now has enough to carry out 166 executions -- even though it has just 12 men on death row.

The state paid $2,056 to Kayem Pharmaceutical Pvt. Ltd. for 500 grams of sodium thiopental, the minimum purchase required by the company, according to corrections officials.

Sens. Danielle Conrad of Lincoln and Brenda Council and Jeremy Nordquist of Omaha sent the letter Feb. 3 to Bob Houston, director of the department.

The letter asked for, among other things, documentation regarding how the drug was imported into the United States, how the drug was tested, the results of those tests, the chain of custody for the drug while en route to Nebraska and whether the department solicited bids for the drug.

Conrad said the three lawmakers wanted to make sure the Legislature maintains a role in ensuring "constitutional and statutory rules and regulations are adhered to.

"This is really ensuring that the Legislature takes an appropriate oversight role on these issues as we move forward ... rather than washing our hands and saying 'They'll just work it out,'" Conrad said. "We need to have clear, concrete facts and specifics on these issues."

According to the documents, the department paid Phil Patterson Inc., an import company based in Omaha, to facilitate shipment of the drug from India.

Kayem issued a certificate of origin for the drug and the shipment was under the supervision of customs officials in India and the United States, said Megan Cooley, who oversaw the importation for Phil Patterson Inc.

Once the shipment arrived in the United States, it was tested by Medtox Laboratories in St. Paul, Minn., to verify that it was sodium thiopental, according to the documents.

And:

Mark Caverly of the U.S. Drug Enforcement Administration said states can give or sell doses of the drug to other states for use in executions, as long as they are both registered with the DEA and the drug was properly imported.

A doctor, hospital, clinic or, in this case, the corrections department, can transfer up to 5 percent of the total controlled substances it buys in a year to another DEA-registered entity.

But Nebraska prison officials are not looking at doing so, even though the expiration date for the batch Nebraska got is August 2012. They have declined to say why.

Earlier coverage of the Nebraska drug purchase begins at the link.  Inmates have sued the FDA over its refusal to examine foreign drugs imported for use in executions; related posts are in the lethal injection index.

Texas Governor Goes to Bat for Exonerated Man

That's the title of the editorial in today's Austin American-Statesman.

All Texans should be proud of Gov. Rick Perry's promise to do whatever he can to help steer our state away from piling injustice upon injustice in the sad case of Anthony Graves, who spent 18 years in prison for murders he did not commit.

Graves is entitled to as much as $1.4 million in state compensation, but State Comptroller Susan Combs' office, citing what appear to be technicalities, is refusing to make the payment. Perry is on the case, and we support his efforts to get the payment made, though it would not come close to compensating Graves for the suffering he has endured.

And:

Last October, District Attorney Bill Parham declared Graves innocent; the charges were dropped; and Graves sought the compensation to which he is entitled.

But Combs is denying compensation to Graves because he has no piece of paper declaring his "actual innocence," the key phrase that triggers compensation in such cases.

The Feb. 2 letter from Leonard Higgins in the comptroller's judiciary section to Graves' attorney Nicole Casarez is chilling.

"The claim for compensation you submitted on behalf of Mr. Graves did not include a pardon or court order that met the requirements" of state law concerning compensation, Higgins wrote.

No pardon was included because no pardon was granted. No pardon was granted because, as a result of the federal appeals court action and the local prosecutors' decision not to retry the case, there was nothing for which to be pardoned.

But there does remain a wrong that needs to be righted. We will choose to believe that Combs' decision was based on a well-intentioned reading of a law in need of correction. Whatever it was based on, it is a decision that is an embarrassment to Texas.

This cannot be the final word on this case. That's why we were so pleased when Perry on Wednesday branded the Graves case a "great miscarriage of justice" and vowed to do whatever he can to help Graves get the money to which he is entitled.

Perry, in Galveston for an unrelated event, told the Houston Chronicle he would intervene on Graves' behalf through legislative action or "directly with the comptroller's office."

He said his goal is to "get this individual the appropriate reimbursement for years that he has spent incarcerated for something that he did not do."

Earlier coverage begins with the post, "Lisa Falkenberg on the Graves Judicial Connections."  You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

Tennesse Lethal Injection Procedure Ruled Constitutional

The Tennessean reports, Tennessee's lethal injection procedures are constitutional, judge rules."  It's written by Erin Quinn.

A Davidson County judge ruled Wednesday that the state's new lethal injection procedures are sufficient and constitutional.

Chancellor Claudia Bonnyman's decision clears the way for the state to ask the Tennessee Supreme Court to reset the execution date for death row inmate Stephen Michael West. But defense attorneys said they would appeal Bonnyman's ruling, which guarantees additional delays.

In November, 10 days before the Union County double murderer was to be executed in a Nashville prison, his lawyers argued that inmates are awake and in pain during the execution when given the drugs that paralyze the muscles and stop the heart. Bonnyman agreed and said the method of execution was unconstitutional because it allowed for "death by suffocation while the prisoner is conscious."

In the state's three-drug cocktail, the first drug, sodium thiopental, is supposed to render the inmate unconscious. Next, the inmate is given pancuronium bromide to paralyze the muscles, then potassium chloride to stop the heart.

After Bonnyman agreed with the evidence presented by the inmates' lawyers, the state responded with the protocol to determine consciousness.

After sodium thiopental is shot through a prisoner's veins to knock him unconscious, the warden will call out his name, shake him and brush his eyelashes. If the inmate showed a response, the warden would administer a second dose.

The check for consciousness "seems to take care of the problem," Bonnyman said Wednesday.

In reaching that conclusion, the judge noted that 19 of the 36 states that use the three-drug lethal injection cocktail perform the consciousness checks. Bonnyman also said other higher courts nationwide have found the checks by the warden to be sufficient.

"Simple manual checks for consciousness are common sense,'' Bonnyman said, adding that not doing a check would be a "glaring omission.''

"Judge upholds state's method for executions," is the AP report by Kristin M. Hall.  It's via the Memphis Commerical Appeal.

A judge on Wednesday upheld the state's revised execution plan to require the prison warden to confirm that the condemned inmate is rendered unconscious by the first drug injected in a three-drug cocktail.

Davidson County Chancellor Claudia Bonnyman ruled that the state's plan appears to address concerns that the inmate could be conscious and in severe pain when the later drugs are injected.

Last year the Tennessee Supreme Court halted the executions of four prisoners as Bonnyman considered the constitutionality of the state's death penalty procedures.

Stephen Kissinger, a federal public defender representing death row inmate Stephen Michael West, had said that the state's new method was not effective at determining whether an inmate was awake. Following the ruling Wednesday, he said he would likely appeal to the Tennessee Supreme Court.

And:

Bonnyman ruled in November that the previous protocol, which didn't include a check for consciousness, allowed for death by suffocation while conscious and was unconstitutional because that amounted to cruel and unusual punishment. She said the state did not have safeguards to ensure the inmate wasn't awake during the execution.

Under the new procedure, the check comes after the inmate is given a single dose of sodium thiopental, a sedative. The warden will brush his hand over the inmate's eyelashes, call out the inmate's name and gently shake the inmate. If the inmate shows no response, the warden would instruct the executioner to continue with the next two drugs.

If the inmate did show a response, the warden would order the executioner to administer a second dose of sodium thiopental.

In her ruling, Bonnyman said that the Tennessee Supreme Court placed the burden on West's attorneys to prove that the revised protocol contains an objectively intolerable risk of pain, not just simply the possibility of pain.

 Earlier coverage from Tennessee begins at the link.

Lisa Falkenberg on the Graves Judicial Connections

Her column in today's Houston Chronicle is, "Maybe judge is just dad's girl."  It's must-read, shing a light on small town connections.  Here are extended excerpt:

Maybe it has nothing to do with the judge being a Republican. Maybe it has nothing to do with the political climate at all.

Maybe there's another reason the prosecutor in Anthony Graves' case felt he couldn't get the judge to sign an order ensuring Graves be compensated for the 18 years he spent behind bars for a crime he didn't commit.

Maybe it's because the judge, Reva Towslee-Corbett, is her father's daughter.

Graves, whose capital murder conviction was overturned by a federal appeals court in 2006, recently was denied compensation for his wrongful conviction by the state comptroller's office. Comptroller Susan Combs denied the claim because the judge's order didn't contain the magic words "actual innocence," which she claims the statute requires.

Whether the comptroller is justified in her claim or just trying not to open a Pandora's Box is another column.

But it's been a mystery to many following the case as to why Bill Parnham, the current district attorney for Burleson and Washington counties who has steadfastly supported the case for Graves' innocence, didn't try to get the judge to amend her order with the magic words.

A fact left out of most news coverage on the Graves' case is that the judge, Towslee-Corbett, is the daughter of the judge who heard the original trial that led to Graves' conviction.

Not only that. There also had always been rumors that that the elder judge, Harold Towslee, was once law partners with Charles Sebesta, the reckless prosecutor accused of botching the case with false testimony and manufactured evidence.

The elder Towslee confirmed to me over the phone Wednesday that he and Sebesta practiced law together "a long time ago, maybe the early 1970s."

I asked if his relationship with Sebesta at all influenced his decisions during the trial.

"I'm not going to talk about that, ma'am," the judge said. "You'll have to write your story from some other sources."

And:

Towslee-Corbett didn't return my call for comment, and a spokeswoman said it's been her policy not to talk to reporters.

In a small town, certain connections are expected, but Graves' counsel considered Towslee-Corbett's history with the original judge, as well as the prosecutor, a serious conflict.

As one of Graves' attorneys, Jeff Blackburn, put it: "She grew up practically getting bounced on the knee of Charles Sebesta."

The judge's bias was evident in other decisions. Before she eventually allowed the charges against Graves to be dropped, she was going to allow tainted testimony to be admitted in the new trial. And the day before Graves was to be released from jail after the federal court had tossed out his case, Towslee-Corbett inexplicably set his bond at $1 million to keep him behind bars longer.

So, perhaps all this explains why Parnham may not have felt comfortable asking the judge to amend her order to help Graves get compensation.

Perhaps the DA knew what her answer would be.

And if that's the case, if there's a judge whose rationale is found to be irrational, or who is basing decisions on emotions and personal relationships, we shouldn't let those factors prevent someone like Graves from getting just compensation.

Earlier coverage begins with the preceding post.

Gov. Perry Enters Fray Over Anthony Graves' Compensation

Today's Houston Chronicle reports, "Perry pledges to help Graves get compensation," by Harvey Rice.

Gov. Rick Perry said that Anthony Graves' capital-murder conviction was a "great miscarriage of justice" and pledged to assist in the effort to win the state compensation denied to Graves by the Texas Comptroller's Office.

Perry said he would help Graves, who spent 18 years behind bars before charges were dropped in October, either through legislative action or "directly with the comptroller's office."

In a Houston appearance Tuesday to discuss the importance of small business to the economy, Perry said he would support efforts to "get this individual the appropriate reimbursement for years that he has spent incarcerated for something that he did not do."

Governor's office spokeswoman Lucy Nashed said Perry could not pardon Graves because a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal.

The governor's office has been consulting with Graves' attorneys, Nashed said.

"We understand that Anthony Graves is innocent, and have been in contact with his lawyers, who are pursuing every available option to ensure that he is granted the restitution he deserves," she said.

Graves attorney Jeff Blackburn of Amarillo said the governor's statement that Graves is innocent gives a moral boost to the effort to win compensation for him.

"That statement in and of itself from the chief executive of this state is going to go a long way toward getting what (Graves) deserves," Blackburn said.

Blackburn said attorneys are looking at several alternatives but likely would have to sue the comptroller's office in federal court.

The comptroller's office last week notified Graves' attorney Nicole Casarez that it had rejected his petition for compensation because the court order dismissing the capital murder charges did not contain the words "actual innocence." The law provides for $80,000 for each year of wrongful imprisonment.

Blackburn, who said he helped write the compensation law, accused the comptroller's office of misinterpreting the statute and its intent.

The AP report is, "Texas gov. discusses exonerated man's conviction," via Forbes.

Gov. Rick Perry says the capital murder conviction of a man exonerated after 18 years in prison was a "great miscarriage of justice" and that he recognizes the man's attorneys are trying to win him compensation.

And:

"We see that there has been a miscarriage of justice. His attorneys are pursuing every avenue to obtain compensation," Perry spokeswoman Lucy Nashed told The Associated Press on Wednesday night.

"Parham ‘surprised’ Graves was denied," is in today's Brenham Banner-Press.

District Attorney William Parham said he was “somewhat surprised” by the Texas Comptroller’s denial of Anthony Graves’ request that he be paid for the more than 18 years he spent behind bars.

“I’m really kind of surprised that they turned it down,” Parham said Tuesday. “I guess now it’s up to his lawyers.”

Graves’ attorneys were told last week by the comptroller’s office that his request had been denied because the words “actual innocence” weren’t on a court order freeing him from jail.

Graves’ attorneys asked that the release order be amended to include that phrase, but Parham declined that request.

Parham said Tuesday that he felt his involvement in the case ended with Graves’ release.

“I did my part and dismissed the case. After that, my job’s done,” he said.

The Austin American-Statesman's Jason Embrey posts, "Another disagreement between Perry and Combs."

Governor supports state payment to man who was released after 18 years, Straus talks about the speaker’s race and there could be a sonogram vote in the Senate today.

Gov. Rick Perry has received plenty of attention over the last week for telling the Washington Examiner that he disagrees with Comptroller’s Susan Combs efforts to collect sales taxes from Amazon.com.

In the next post, I'll link to Lisa Falkenberg's must-read Chronicle column on the matter.

Earlier coverage of the Comptroller's denial of Graves' compensation for wrongful incarceration begins at the link. 

You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

Sign the Petition Calling for Clemency for Tim Adams

You can sign the Change.org petition, from this link, or by clicking on the Take Action box in the right column.

Texas is poised to execute Timothy Adams on February 22, 2011, in spite of staunch opposition to his death sentence from the victim’s family, three jurors from Mr. Adams’ trial, and his fellow church members. Mr. Adams is a devoutly religious military veteran who has taken full responsibility for what he did. He poses no danger to society and has the love and support of his family, who has already endured the tragic death of a loved one and should not be forced to endure another.

Ask the Texas Parole Board to recommend and Governor Rick Perry to grant clemency to Timothy Adams.

You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

News Coverage of Adams News Conference

There is more coverage today on yesterday afternoon news conference by faith leaders calling for a commutation of Tim Adams' death sentence.

The Texas Tribune report is, "Religious Leaders Advocate for Ex-Veteran's Clemency."  It's written by Aziza Musa.

Timothy Adams begged his father for forgiveness in his first call from death row in 2003. 

Without hesitation, Columbus Adams said yes. He forgave Timothy Adams for fatally shooting his 19-month-old son — Columbus Adams' grandson — in the chest. Today, a week before his son is scheduled to die for the crime, Columbus Adams and a host of religious leaders asked the state to forgive Timothy Adams, too. Timothy Adams was a hard-working Christian and an Army veteran, he said, who never committed a crime before the day he lost control during an argument with his wife and killed their son.

Columbus Adams, the Texas Defender Service and more than 90 religious leaders from across Texas urged Gov. Rick Perry and the Texas Board of Pardons and Paroles to commute Timothy Adams' death sentence to life in prison. Three jurors from Timothy Adams' trial also signed a clemency petition submitted to the board last week.

"The truth is that Timothy snapped and did something wrong, but the crime is an aberration in his life," said Kate Black, Texas Defender Service staff attorney.

And:

Religious leaders spoke of Timothy Adams' deep faith and his character, and  they said that if jurors at his trial had known that, they wouldn't have handed down the death penalty.

"At the end of our lives, which of us wants to 'get what we deserve' for the single worst act of our lives, with complete disregard for all the good things we may also have done?" asked Sister Elizabeth Riebschlaeger with the Sisters of Charity of the Incarnate Word.

"Clergy urge clemency for Timothy Adams," is the AP filing, via the Houston Chronicle.

More than 90 leading clergy members have signed a letter to Gov. Rick Perry and the Texas parole board, appealing for clemency for Timothy Wayne Adams.

The clergy members represent eight Christian denominations and the Unitarian Universalist church. Adams is set to die Tuesday for fatally shooting his 19-month-old son during an argument with his estranged wife at their apartment in Houston.

The signatories to the letter include Archbishop Joseph Fiorenza of the Galveston-Houston Catholic archdiocese, Bishop Emeritus Raymundo Pena of the Brownsville Catholic diocese and Bishop Michael Rinehart of the Evangelical Lutheran Church of America.

The letter asks Perry to commute Adams' death sentence to life imprisonment.

"Family of Texas man set to die pleads for his life," is the Reuters report by Corrie MacLaggan.

"This is a constant pain, day in and day out, that we're about to lose another member of our family," Adams' father, Columbus Adams, told a press conference at the Texas Capitol.

Columbus Adams was joined by several clergy members who are part of a group of more than 90 Christian leaders who wrote a letter to Gov. Rick Perry and the Texas Board of Pardons and Paroles asking that Timothy Adams' death sentence be commuted to life in prison without parole.

Perry spokeswoman Katherine Cesinger said that "the governor fully considers each case before making his final decision."

Adams' supporters said that his actions on that 2002 day were out of character and that he is not a danger to anyone. Adams' wife testified that her husband followed her and once told her that he hoped to catch her with another man so that he could kill them "right then and there." according to the attorney general's account of the case.

The Rev. Lawrence Scott of New Pleasant Grove Missionary Baptist Church in Houston, the Adams family's church, said at the press conference that it's time to break the chain of "murder for murder."

"He's a good man," Scott said of Adams. "What he did was horrible, but to take his life is not going to do anything for the situation. His mother can't sleep. His father can't sleep."

Jordan Smith writes, "Clemency Sought for Veteran," for the Austin Chronicle.

Jurors Rebecca Hayes, Ngoc Duong, and Kathryn Starling each say they were not provided key information about Adams during the sentencing hearing that would have made a difference in the outcome. Moreover, Hayes and Duong told Adams' attorneys that they were leaning toward a life sentence but gave in to extreme pressure from other jurors who had decided Adams was coldhearted. It is now clear to both jurors that Adams' defense attorneys were ill-prepared for the hearing and failed to present compelling personal information about Adams – including that he came from a close-knit family, was a hard worker, and was very religious. "After the trial, I learned additional information that confirmed my conviction that Adams should not have been sentenced to death," Hayes said in a statement included in the clemency petition. "To this day, I do not believe that Timothy Adams deserves to die for his crime."

Austin's Belo-owned KVUE-TV reports, "Houston family pleads with Texas Governor's office for clemency."  It's by Shelton Green.  There is video at the link.

The day after the State of Texas executed the first of five people scheduled to die on death row this year, a family pleaded with staff members with the Governor’s office to save the life of the second death row inmate waiting in the wings. 

Timothy Wayne Adams, 36, of Houston is scheduled to be executed Tuesday, February 22, 2011.

 

In 2002, Timothy Adams shot his 19-month old son Timothy Jr. twice in the chest, killing him during a heated custody battle. Adams was threatening to take his own life at the time of the tragedy.

 

“He's been remorseful from day one. He knows that he did something terrible and when he called home he asked me, 'Momma, can you forgive me?'  And I said, 'Yes son, you're my son and I love you,'” said Wilma Adams, Timothy’s mother, who travelled to Austin Wednesday with her husband, several jurors from Adams’ trial and a minister representing 90 Houston preachers, all of whom say they believe that Adams deserves a life sentence and not death.

 

One juror says she would have opted for a life sentence for Adams had she known more about his religious upbringing.

 

“He is a young man who has good moral foundations and he is worthy of redemption and reconciliation and we feel like there ought to be discernment about people like this who face the death penalty," said Bishop Joe Williams of Houston, who supports clemency for Adams.

And:

An attorney for Tim Adams says the Texas Board of Pardons and Parole is scheduled to make a decision about Adams’ fate on Friday.

Belo also owns Dallas' WFAA-TV, Houston's KHOU-TV, and San Antonio's KENS-TV.

Earlier coverage begins with the post, "Will the Governor Heed a Victim's Family's Plea for Mercy?"

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.  There is more on the case at the Timothy Wayne Adams website.

You can sign a petition urging clemency at the website.  You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

Barbara Jordan Freedom Foundation Program Next Week

The annual Barbara Jordan Forum  kicks off next week with an keynote by State Senator Rodney Ellis, and contains some excellent criminal justice programming. 

Details are in the news release, "Weeklong Tribute to Honor Life and Work of Barbara Jordan Feb 21-25.
LBJ School of Public Affairs Joins with The Barbara Jordan Freedom Foundation to Commemorate Jordan’s Landmark 75th Birthday."

Events are free and open to the public, but you must register to attend Senator Rodney Ellis' Keynote Opening Day’s Symposium.  All events are at the LBJ School of Public Affairs.

Discussions of particular items to readers in the Austin area on Monday:

1:15 p.m. – 2:15 p.m.  – “Reducing Risk and Building Strength Through Educational Reform and Early Childhood Interventions”
Roundtable discussion with:
Dr. Gregory Vincent, UT Vice-President for Diversity and Community Engagement
Prof. Norma Cantu, UT College of Education and School of Law
Kara Johnson, Texas Early Childhood Education Coalition
Prof. Julian Heilig, UT College of Education
Dr. Lynda Frost, Hogg Foundation for Mental Health

2:30 p.m. – 4:00 p.m. – “The Need for Juvenile Justice Reform”
Lead Speaker: Shay Bilchik, former head of the Office of Juvenile Justice and Delinquency Prevention, and Executive Director, Georgetown University’s Center for Juvenile Justice Reform

Responders:
Vicki Spriggs, Executive Director, Texas Juvenile Probation Commission
Senior District Judge Jeanne Meurer, Travis County juvenile judge
Prof. David Springer, UT School of Social Work

4:15 p.m. – 5:45 p.m. – “Mass Incarceration, Race, and Criminal Justice Reform”
Lead Speaker: Marc Mauer, Executive Director, The Sentencing Project

Responders:
Steve Martin, Attorney and Corrections Consultant; author of “Texas Prisons: The Walls Came Tumbling Down”
District Judge John Creuzot, Dallas County criminal judge (invited)
Ana Yanez Correa, Executive Director, Texas Criminal Justice Coalition
Prof. Michele Deitch, LBJ School of Public Affairs

On Friday, February 25:

12:15 – 2:15 p.m.--“From Time Out to Hard Time: Young Children in the Adult Criminal Justice System” featuring Prof. Michele Deitch
Sponsored by the Center for Health and Social Policy (CHASP) and Social, Health, Economic, and Education Policymakers (SHEP)
SRH 3.122
Bass Lecture Hall

The Center for Health and Social Policy and SHEP present LBJ School Senior Lecturer Michele Deitch, a Board member of the Barbara Jordan Freedom Foundation and an expert on juvenile justice and criminal justice policy.  She will discuss the prevalence and implications of trying juveniles as adults and incarcerating them in adult prisons and jails.

Related posts can be found in the juvenile index; earlier items from Michele Deitch, at the link.

Two Items From Georgia

There is coverage of two issues in Georgia.  A federal district judge, yesterday afternoon, rejected an inmate's petition regarding the state's supply of sodium thiopental, over the issue of the drug's expiration date.

Also yesterday, the ful U.S. Court of Appeals for the Eleventh Circuit, heard oral arguments concerning the state's standard for determination of mental retardation in capital cases.

"Judge rejects Georgia inmate's execution drug concerns," is the AP report, via the Atlanta Journal-Constitution.

A federal judge has rejected a lawsuit by a Georgia inmate who claimed the state's stockpile of a key lethal injection drug expired and that using outdated drugs may cause excruciating pain.

U.S. District Court Judge Timothy Batten on Tuesday denied Roy Willard Blankenship's request to halt his execution until more details are released about the state's supply of sodium thiopental.

State attorneys argued that the sedative will not expire until February 2014 and claimed the lawsuit was a backdoor attempt to commute his sentence.

Blankenship was set to be executed last week for the 1978 murder of an elderly woman, but the state pardons board postponed it earlier this month to give authorities more time to conduct DNA testing on the victim's remains.

Reuters posts,"Federal judge refuses stay of Georgia execution."  It's written by David Beasley.

A federal judge refused late on Tuesday to issue a stay of execution for a man who claimed Georgia's supply of lethal injection drug sodium thiopental has "almost certainly" expired, meaning he would be subjected to an unnecessarily painful death.

In his ruling, Judge Timothy C. Batten held inmate Roy Willard Blankenship failed to prove his claims Georgia's supply of the drug has expired.

"Even if Blankenship could show that it was sure or very likely that the sodium pentothal has expired, he has failed to show that the expired drug is less effective and that its use will therefore cause him to needlessly suffer," Batten also ruled.

Georgia claims its stockpile of the drug does not expire until 2014.

Earlier coverage of the Georgia lethal injection drug dispute begins at the link.

Turning to the mental retardation issue, the Atlanta Journal-Constitution report is, "Mentally retarded inmate fights to live."  It's by Bill Rankin.

Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.

Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt. Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.

On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite. By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.

The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said.

During lively arguments in a packed courtroom, a number of judges seemed to agree.

Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence. Four states have adopted a tougher test, the clear and convincing evidence standard. Three states have not set a burden of proof.

The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling. About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional.

In 2002, the U.S. Supreme Court ruled that mentally retarded individuals, because of their disabilities in reasoning, judgment and self control, do not act with the same level of moral culpability that characterizes the most serious adult criminal conduct.

And:

Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt. After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.

The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.

Judge Frank Hull, joined by a number of her 11th Circuit colleagues, said that the state Supreme Court ruling should stand. In more than 200 years, she noted, the U.S. Supreme Court has not ruled that a burden-of-proof standard violates the Eighth Amendment's ban on cruel and unusual punishment.

Earlier coverage begins with the post, "Georgia's Mental Retardation Standard To Receive Further Review."

The case is Warren Lee Hill, Jr. v. Derrick Schofield. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.; related posts, in the mental retardation index.

Montana Senate Gives Final OK to Repeal Bill

The AP report is, "Senate gives final passage to death penalty repeal," via the Billings Gazette.

The state Senate is sending a bill to repeal Montana's death penalty to the House, where the plan failed two years ago.

A day after the Senate signaled its support for Senate Bill 185, the chamber gave it final passage Tuesday with another 26-24 vote.

The bill drew the support of all the chamber's Democrats and four Republicans.

If it passes, the bill will immediately replace the death penalty with life in prison without parole and could change the sentences of two inmates currently on death row.

Next, the bill must clear the Republican-dominated House. A similar measure passed the Senate last session in 2009, but didn't even make it out of a House committee.

Earlier coverage begins with the post, "Repeal Clears Montana Senate; Final Senate Vote Today," from yesterday.

Texas Execution

Texas carried out its first execution of 2011, tonight in Huntsville.  It was the state's 465th execution since 1983; the 226th execution under the administration of Governor Rick Perry.

Michael Graczyk files, "2nd Texas man executed for torture-slaying," for the AP on Michael Anthony Hall's execution.  It's via the Austin American-Statesman.

A North Texas man convicted in the 1998 torture-slaying of a 19-year-old mentally challenged woman apologized profusely Tuesday just minutes before he was executed, exactly 13 years after the murder.

Michael Wayne Hall, 31, received lethal injection less than an hour after the U.S. Supreme Court refused to stop his punishment for the abduction and murder of Amy Robinson. Hall was pronounced dead at 6:23 p.m. at the Huntsville Unit of the Texas Department of Criminal Justice.

The second man convicted in Robinson's death, Robert Neville, was executed five years ago.

"I would like to give my sincere apology to Amy's family," Hall said as he was strapped to the death chamber gurney. "We caused a lot of heartache, grief, pain and suffering, and I am sorry. I know it won't bring her back."

Speaking just above a whisper, his voice shaking and eyes watery, Hall said he wasn't the same person and repeatedly asked for forgiveness. Relatives of his victim stood a few feet away, looking through a window.

"I am not crying for myself, I am crying for the lost and those that are dying for their sins," he said. "I've been locked up 13 years. I am not locked up inside. All these years I have been free. Christ has changed me. Here I am, a big strong youngster, crying like a baby. I am man enough to show my emotions and I am sorry.

"I am sorry for everything. I wish I could take it back, but I can't."

Nine minutes later, he was pronounced dead.

Lawyers for Hall unsuccessfully argued that he was mentally impaired and ineligible for the death penalty under a Supreme Court ruling that bars capital punishment for those with an IQ under 70.

"Mr. Hall's history of mental retardation reaches back to his childhood," attorney Bryce Benjet said in his appeal.

Hall's lawyers went to the Supreme Court a day after the Texas Court of Criminal Appeals — the state's highest criminal court — refused to stop the punishment. Similar appeals also failed in other courts.

There have now been saix executions in the nation this year; 1,240 post-Furman executions since 1977. 

According to TDCJ, four more executions are scheduled in Texas during 2011; including one next week.

As noted in several posts, Texas' stock of sodium thiopental expires in March.

Ohio is set to carry out its first execution of 2011, tomorrow.

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

Georgia's Mental Retardation Standard To Receive Further Review

"Judges consider Ga. execution standard," is the title of Greg Bluestein's AP filing, via the Macon Telegraph.

The full federal appeals court is set to hear a death penalty case that could impact the fate of condemned inmates on Georgia's death row.

The 11th Circuit Court of Appeals on Tuesday will review a ruling by a three-judge panel that struck down a Georgia law that required capital defendants to prove beyond a reasonable doubt they are mentally retarded to avoid execution.

Georgia became the first state in 1988 that banned the execution of mentally retarded inmates.

It also is the only state in the country that requires defendants to prove they are mentally retarded beyond a reasonable doubt, the most stringent legal standard.

Earlier coverage from Georgia begins at the link.  The case is Warren Lee Hill, Jr. v. Derrick Schofield.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.; related posts, in the mental retardation index.

New Member of Fifth Circuit

Last night the U.S. Senate confirmed James Graves as a member of the U.S. Court of Appeals for the Fifth Circuit.

The Jackson Clarion-Ledger reports, "Graves confirmed to 5th Circuit; Miss. justice appointed to serve on federal bench."  It's written by Jerry Mitchell.

The U.S. Senate voted Monday to confirm Mississippi Supreme Court Presiding Justice James Graves to the 5th U.S. Circuit Court of Appeals.

"This is an incredible honor," said Graves. "I am humbled by the support which I have received, and I look forward to serving our nation in this important position."Gov. Haley Barbour is expected to appoint a replacement to serve the remaining two years of Graves' term, which expires in January 2013.

And:

In December, Graves' nomination stalled, but President Obama resubmitted his name in January.

Graves was the first appellate nominee to come before the full Senate this year, but if the administration gets its way, he won't be the last.

"The Senate confirmed Judge Graves because he is well qualified and noncontroversial and the two home state senators strongly supported the jurist," said Carl Tobias, a law professor at the University of Richmond.

He said this may signal a shift in how nominations are handled in the Senate.

There are 100 federal judicial vacancies with the confirmation of Graves and another federal judge on Monday, said Senate Judiciary Chairman Patrick Leahy, D-Vt.

Also:

Matt Steffey, professor at Mississippi College School of Law, said Graves brings "long overdue diversity" to the mostly white 5th Circuit, which now handles cases from Texas, Louisiana and Mississippi.

"Justice Graves is undoubtedly a great choice," Steffey said. "He's a first-rate intellect and has exactly the kind of experience and judicial temperament that will serve him well on the 5th Circuit, where he'll see a great breadth of civil and criminal cases."

During a confirmation hearing, U.S. Sen. Jeff Sessions, R-Ala., questioned Graves joining another justice's 2008 dissent, which called the death penalty cruel and unusual.

Graves responded that he considered the dissent merely a plea for dialogue on the effectiveness of the death penalty.

He reassured Sessions he would follow federal law and the U.S. Constitution and later provided a list of 22 cases in which he voted to affirm a death sentence.

Graves previously served as a circuit judge in Hinds County.

The BLT's David Ingram posted, "Senate Set to Vote on Nominee for 5th Circuit."

James Graves Jr. is expected to make history today when he becomes the first African American from Mississippi to be confirmed for the U.S. Court of Appeals for the 5th Circuit.

The Senate is scheduled to vote at about 5:30 p.m. on Graves’ nomination for the court. Graves, a justice on the Mississippi Supreme Court, has bipartisan support, including from his state’s two Republican senators, and is likely to be confirmed.

Graves, pictured above, has been on his state’s highest court since 2001. He previously served a decade as a state trial judge after working as a lawyer in private practice and in state government.

During his confirmation hearing, Sen. Jeff Sessions (R-Ala.) questioned Graves’ decision to join another justice’s 2008 dissent calling the death penalty cruel and unusual. Graves said he considered the dissent merely a plea for dialogue on the effectiveness of the death penalty, and Graves later provided a list of 22 cases in which he voted to affirm a death sentence. The issue is especially important for the 5th Circuit because it hears appeals from Texas’ large death row.

Related posts are in the Fifth Circuit index.

West Virginia to Hear Death Penalty Bill

West Virginia Public Broadcasting reports, "House hearing to consider death penalty."  It's by Tom Miller.  There is video at the link.

West Virginia abolished the death penalty nearly 50 years ago but there have been repeated attempts in recent years in the Legislature to revive capital punishment. This year there is a new alternative to that perennial proposal.

A public hearing on both bills calling for the death penalty as a possible punishment in first degree murder cases is scheduled in the House Tuesday afternoon.  

Boone County Del. Larry Barker is more optimistic about the latest option that would apply only to prison inmates already serving life without parole who are convicted of murder. Barker says this proposal eliminates the fears that innocent people are put to death.

By instituting the death penalty only for inmates that commit murder while in prison, Barker notes it gives prison guards a level of protection from an inmate he says has nothing to lose.

Misty Higgins writes, "Capital punishment hearing set," for the Martinsburg Journal.

Delegate John Overington, R-Berkeley, said he can't remember the last time there was a public hearing on capital punishment.

Overington, who has been introducing a bill on capital punishment for more than two decades, has never achieved any individual success in getting the bill on the agenda.

This year, for the first time in what Overington conservatively estimates has been at least 15 years, the issue has gotten further along, with a public hearing confirmed by House Judiciary Chair Tim Miley for 2:30 p.m. today in the House of Delegates chambers at the state Capitol.

Overington has introduced House Bill 2526, outlining capital punishment as an option for certain heinous crimes. He claims the aggravating and mitigating circumstances would make it impossible for an innocent person to be sentenced to death. There are 11 sponsors on the bill, Overington noted, representing support across the state for capital punishment, which has been abolished in West Virginia since 1965.

Noting that common practice for public hearings is that they are usually only held for issues relating to bills already on the agenda, Overington said he is pleased that support for the death penalty has shown legislators that the issue is relevant to constituents and deserving of a hearing.

The Charleston Gazette carries the editorial, "Pro-death: America alone."

Sadly, some conservatives in the Legislature want the state government to resume killing prisoners. This afternoon, the House of Delegates is to hold a public hearing on restoring the death penalty, a half-century after West Virginia abolished it. A pending bill prescribes executions by lethal injection.

It would be shameful for the Mountain State to rejoin pro-death places, which mostly are brutal regions, usually dictatorships. All other enlightened democracies around the world have ended executions. Only a few U.S. states still put prisoners to death.

And:

We're proud that West Virginia joined the world's advanced democracies in ending the medieval practice of putting prisoners to death. Our state, and similar ones, raised human values to a more honorable level.

Related posts are in the state legislation index.

Illinois Exonerees Call on Governor Quinn to Sign Repeal

"Exonerated US death row inmates seek repeal," is the AP report via Comcast NECN.

Wrongfully convicted former death row inmates said Monday there's only one way to ensure Illinois never executes an innocent person — repeal the death penalty.

Witness to Innocence, which is a group of men sent to death row but later exonerated, urged Gov. Pat Quinn to sign legislation abolishing the death penalty in Illinois.

"Don't repeat the mistakes of the past," said Randy Steidl, who was wrongly convicted of murdering a newlywed couple. "There's only 15 on death row now, and we know they were all found guilty by a jury of their peers. That's what they said about myself and 19 others."

Illinois has exonerated 20 death row inmates, according to the Illinois Coalition to Abolish the Death Penalty. Former Gov. George Ryan halted executions in 2003, but the penalty remains on the books and juries continue to impose death sentences.

It is unclear what would happen to the 15 people on death row if the death penalty is repealed.

Lawmakers voted to end the death penalty a month ago. Quinn, who supports the death penalty but has continued the moratorium on executions, hasn't said whether he intends to sign the legislation, or even when he will decide.

And:

Delbert Tibbs, a Chicago native who was wrongfully convicted of rape and murder, was on death row in Florida during the 1970s. He said people who view the death penalty as a means of closure are misguided.

"I interpret closure to mean revenge," Tibbs said at a news conference. "And I think it's inappropriate for the state, as a sovereignty, to deal in revenge."

Earlier coverage from Illinois begins at the link.

A Legislative Update From New Mexico

It appears that the effort to repeal the repeal by New Mexico's new governor is already dead on arrival.

Albuquerque Journal columnist John Robertson writes, "Floating in Santa Fe," in his At the Roundhouse column.

One no-go for the governor probably is her call to repeal the Richardson-era repeal of the death penalty.

The repeal got a narrow 24-18 approval by the Senate in 2009 after more easily passing the House. The problem this year is that the Senate membership effectively hasn't changed.

With no Senate election since 2008, the only seat that has changed hands is the District 40 seat vacated by Republican Sen. Dianna Duran with her election as secretary of state. Martinez appointed another Republican, Bill Burt, to fill the seat.

Senate Judiciary Committee Chairman Richard Martinez, D-Española, who was one of three Democrats voting against the death penalty repeal in 2009, conceded to me recently that any bill to restore the penalty probably wouldn't make it out of his committee this year, even with him voting for it.

The newly elected governor, Susana Martinez, a former prosecutor, had called on lawmakers to reinstate capital punishment.  Related posts are in the state legislation index.

Repeal Clears Montana Senate; Final Senate Vote Today

"Montana Senate endorses repeal of death penalty," is the AP report filed by Stephen Dockery, via the Missoulian.  It's also available via the Billings Gazette.

In a close vote, the state Senate on Monday endorsed a bill to repeal the death penalty for the second straight legislative session.

Senate Bill 185 was supported in a 26-24 vote, with all the chamber's Democrats along with four Republicans arguing that it's time to get rid of the punishment in favor of life in prison without parole.

Lawmakers opposed to the measure argued that capital punishment still serves a necessary purpose.

Sen. David Wanzenried, the Missoula Democrat carrying the bill, said the death penalty is not fair and argued the punishment does not bring closure for victims nor does it serve as a deterrent to murder.

"Our current system can't be made fair and it can't be made infallible," Wanzenried said.

Supporters of repeal argued that the risk of putting an innocent person to death is too high, the punishment is disproportionally levied against minorities and the poor, and the financial cost of the death penalty procedure is too great.

"Whether you are or not with the moral issue, there is a practical issue of spending money," said Ryan Zinke, R-Whitefish.

And:

A similar measure also narrowly passed the Senate with bipartisan support in 2009 but was tabled in a House committee.

It first faces one more Senate vote Tuesday - but it is likely to face a tougher road in the House, which is controlled by Republicans 68-32. Wanzenried said he remains hopeful the measure will pass, despite the much larger Republican majority this session.

"Abolition of death penalty clears MT Senate," is the KXLH-TV report by Marnee Banks.

The Montana Senate has approved a bill abolishing the death penalty in the state.

The bill passed with a very narrow margin on a 26 to 24 vote.

MT State Senator Dave Wanzenried (D-Missoula) is carrying the bill because he feels the death penalty is a flawed form of punishment.

His measure, if approved, would replace the death penalty with life imprisonment without parole.

SB 185 is on this afternoon's Senate agenda for third reading and final passage.  You can watch the floor debate via webcast.  The Montana Senate is due to convene at 2:00 pm, MST.

Earlier coverage from Montana begins at the link

Texas Execution

Texas is scheduled to execute Michael Anthony Hall tonight in Huntsville.  It would beTexas' first execution of 2011.  It would be the state's 465th execution since 1983; the 226th execution under the administration of Governor Rick Perry.

"Execution of killer in '98 case set for tonight," is Martha Deller's report in today's Fort Worth Star-Telegram.

Starting at Hall's trial before state District Judge Sharen Wilson in 2000, his lawyers have said he is mentally retarded. Under Texas law, mental retardation was not a bar to execution, but jurors could consider it as reason not to assess the death penalty.

The prosecution and defense presented conflicting evidence of his IQ. The numbers ranged from 67 to 72.

Then in 2002, the U.S. Supreme Court barred capital punishment for anyone with an IQ under 70.

Hall's appeals attorney, Bryce Benjet of Austin, recently presented evidence to the Texas Court of Criminal Appeals from two more psychologists who concurred with three previous defense experts that Hall is mentally retarded. The court rejected the appeal Monday.

Benjet said he planned to ask the Supreme Court today for a stay of execution and then a hearing on Hall's IQ.

"This is our last option," Benjet said.

There have been five executions in the nation this year; 1,239 post-Furman executions since 1977. 

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

According to TDCJ, four more executions are scheduled in Texas during 2011; including one next week.

As noted in several posts, Texas' stock of sodium thiopental expires in March.

Ohio is set to carry out its first execution of 2011, tomorrow.

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

State Comptroller Rejects Compensation Claim for Anthony Graves

Today's Houston Chronicle reports, "State rejects compensation for wrongly convicted man."  It's written by Harvey Rice

The Texas Comptroller’s Office has denied compensation to Anthony Graves, who spent 18 years on death row before a special prosecutor determined he was innocent and authorities dropped capital murder charges against him.

The state determined that Graves, 45, who could have received as much as $1.4 million had he been deemed eligible, should receive nothing because the words "actual innocence" didn’t appear in the document ordering his release, according to a letter the office sent to Graves’ attorney, Nicole Casarez.

Graves said he will continue to press for compensation.

"Nothing has ever been easy for me on this road to justice," Graves said. "I haven’t given up on it and I hope justice will prevail and I’ll be compensated."

Casarez said she was informed of the refusal Friday after phoning the comptroller’s office to find out why she hadn’t received a response even though the 45-day limit to act on Graves’ request had lapsed.

A letter e-mailed to Casarez from the comptroller’s office said the order dismissing the charges must say explicitly that Graves is innocent. Casarez said the office should have taken her client’s unique circumstances into consideration.

And:

Kelly Siegler, the special prosecutor who recommended dropping the charges against Graves, said that the words "actual innocence" are not commonly used in the courtroom. She said the compensation law likely was designed for cases involving innocence proven through DNA, not a case thrown out by prosecutors after a reexamination of the evidence.

"Who would have envisioned this kind of situation happening?" Siegler said.

"I’m willing to testify to the fact that we believe he’s innocent," she said. "I’ve signed an affidavit. I’m not sure what we are supposed to do to make it happen."

In December, lawyers in the case discussed asking state District Judge Reva Towslee-Corbett, who signed the order freeing Graves, to change the wording of the order. This never happened, however, for reasons that could not be determined Monday.

Casarez said a civil suit seeking compensation was one of several options that would be discussed with attorneys who specialize in that particular type of law.

The Comptroller of Public Accounts' letter rejecting the claim is at the link.

"Ex-Death Row inmate's claim for compensation is rejected," is Michael Graczyk's filing for AP, via the Fort Worth Star-Telegram.

R.J. DeSilva, a spokesman for the comptroller's office, said either a pardon from Gov. Rick Perry or a court order needs to be submitted with Graves' compensation claim to comply with the law.

"Neither of those documents was sent in with the Graves application, so it could not be approved," he said.

DeSilva said Graves' lawyers have until next week to remedy the situation.

"State won't compensate exoneree Anthony Graves," is Colleen McCain Nelson's post at the Dallas Morning News Death Penalty Blog.

Of course, the money can't make up for the 18 years that Graves lost. But it could help him rebuild his life now. The comptroller, it appears, is following the letter of the law. But this appears to be an unfortunate loophole that could mean that Graves comes out on the losing end yet again.

Earlier coverage is at the link; also, coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index. 

More on the issue of compensation for those wrongly incarcerated begins with the post, "Texas Lawyer Sued by State Bar Over Dealings With Exonerees."

Maryland's Moratorium

The Baltimore Sun carries a lengthy examination of the state's death penalty, "Death penalty moratorium leaves survivors, convicts in limbo; Capital punishment opponents see momentum for repeal."  It's by Julie Bykowicz.

Maryland is one of 35 states with a capital punishment law, has five men on death row and is prosecuting a half dozen new capital cases. But no one has been put to death in more than five years, and the slow writing and rewriting of execution protocols has imposed a de facto moratorium on capital punishment that appears unlikely to end anytime soon.

Last week, state prison officials told lawmakers they need more time to work on the protocols — a task that so far has spanned the entire administration of Gov. Martin O'Malley, a death penalty opponent. The latest hangup: One of the chemicals used in lethal injections is no longer available in the United States.

Death penalty opponents announced recently that they have found more legislative support than ever for repeal. Leaders in the General Assembly say the bill is not likely to pass this year, but a Senate made more liberal in last fall's election and a sympathetic governor have activists believing an end to capital punishment is on the horizon.

O'Malley said the shortage of the chemical sodium thiopental "underscores what a laborious and complicated and time-consuming, resource-wasting legal process goes into carrying out the death penalty."

"Our dollars are better spent on crime-fighting measures that we know work," the governor said in an interview last week. Still, he says he has no immediate plans to push for repeal, and won't follow the lead of former Illinois Gov. George Ryan, who in 2003 commuted to life sentences the state's entire death row.

So Maryland will remain in the murky state of having capital punishment but not carrying it out, leaving victims' families and prosecutors frustrated.

And:

In May 2002, Gov. Parris N. Glendening ordered a moratorium on the death penalty while the University of Maryland studied the way it had been applied in the state. The researchers found that capital punishment had been applied unevenly and inherently biased against black defendants.

Gov. Robert L. Ehrlich Jr. lifted the moratorium soon after taking office in January 2003. Two men were executed under his watch; five men in total have been put to death in Maryland since a national ban on capital punishment ended in 1976.

In December 2006, Maryland's highest court ruled that the state could not continue carrying out executions until it developed protocols for how the lethal injections were administered. By then O'Malley, a lifelong death penalty opponent, had been elected and was waiting to take office.

After a push for repeal by death penalty opponents fell short in 2008, the legislature ordered another study, this time led by former U.S. Attorney General Benjamin R. Civiletti. The Civiletti commission found geographic and racial disparities in the way capital punishment is applied in Maryland, and recommended abolishing it.

The next year, O'Malley spearheaded an impassioned effort for repeal. It ended in a compromise of sorts, with the closely divided Senate narrowing the cases in which a prosecutor can seek death to those with DNA evidence, a videotape of the crime or a videorecorded confession by the killer.

Earlier coverage from Maryland begins at the link.  Coverage of the Maryland Commission on Capital Punishment, informally referred to as the Civiletti Commission, begins here. 

More on the Foreign Drug

The Guardian reports, "Executed man's mother urges ban on exports profiting from death penalty."  It's written by Owen Bowcott.

The mother of a US death row inmate who was executed with British-supplied drugs is to call for a ban on exports that support capital punishment overseas when she appears before MPs.

Patches Rhode believes her son, Brandon, died in agony from a lethal injection in a Georgia prison because the UK-sourced anaesthetic, sodium thiopental, appeared not to have been effective.

Her grief has been sharpened by the revelation that the drug which enabled the execution to go ahead was sold by a small-scale pharmaceutical wholesaler, Dream Pharma, that operates out of a driving school office in the west London suburb of Acton.

And:

In a statement given to Reprieve, Dr Mark Heath, a US expert on lethal injection drugs, agreed that the fact that Brandon's eyes remained open suggested he was not properly anaesthetised.

"If the thiopental was inadequately effective Mr Rhode's death would certainly have been agonising," Heath wrote. "There is no dispute that the asphyxiation caused by pancuronium [bromide] and the caustic burning sensation caused by potassium [chloride] would be agonising in the absence of adequate anaesthesia."

According to one pharmaceutical expert, allowing sodium thiopental to drop below freezing in storage or transit might result in it becoming "denatured and not fit for purpose".

Dream Pharma is run by Mehdi Alavi and operates out of the offices of Elgone Driving Academy in west London. At the time of the sale last summer, there was no ban on selling sodium thiopental to the US.

Earlier coverage includes:

• More Questions About the British Sodium Thiopental
• Questions Surround British Drug Used in Georgia Execution

Related posts are in the lethal injection index.

Lawsuit Filed In Georgia Over Foreign Sodium Thiopental

"Ga. inmate's lawsuit claims execution drug expired," is the AP report by Greg Bluestein, via Google News.  It's also available via the Los Angeles Times.

A death row inmate's federal lawsuit claims Georgia's stockpile of a key lethal injection drug has expired, and he's asking a judge to halt an execution he says may cause him to die in excruciating pain.

The lawsuit filed Friday on behalf of Roy Willard Blankenship raises new questions about Georgia's supply of sodium thiopental, a sedative that has been in short supply even before the drug's sole U.S. manufacturer decided last month to stop producing it.

"No matter where Georgia obtained its supply of the drug, the drug is almost certainly expired and no longer effective," said the lawsuit, which was filed in U.S. District Court by the Atlanta-based Southern Center for Human Rights.

The shortage has delayed executions in several states, and an Associated Press review found that at least five states — Arizona, Arkansas, California, Georgia and Tennessee — had to turn to England for their supply of the drug. Nebraska, meanwhile, secured a stockpile from an Indian firm.

Georgia corrections officials did not respond to a request for comment. But state attorneys have said the drug expires in February 2014, and that the same batch of drugs was used without problems for earlier executions in Georgia and Arizona.

And:

The lawsuit, citing state documents, claims the sodium thiopental is stored in vials labeled "Link Pharmaceuticals," a firm purchased five years ago by Archimedes Pharma Limited, another British company.

Link Pharmaceuticals didn't exist in 2010, and its name hasn't been on labels since May 2007, the lawsuit said. Sodium thiopental typically has a shelf life of four years, meaning even the state's newest supply would expire in May of this year, according to the lawsuit.

Archimedes did not immediately respond to a request for comment. But it has said the firm does not export the drug to the U.S. and that it doesn't keep information on the purchasers and users of its products.

Earlier coverage of the sodium thiopental shortage begins at the link.

Will the Governor Heed a Victim's Family's Plea for Mercy?

That's the title of Columbus Adams' OpEd in today's Austin American-Statesman.  It's a must-read.

For nine years, my family has been mourning the death of Timothy Adams Jr., my precious baby grandson who was murdered in 2002. Now we are just over a week away from possibly enduring the death of another beloved family member. Timothy Adams, my son and Timothy Jr.'s father, is scheduled to be executed on Feb. 22 for the crime despite my family's pleas to spare his life.

As a family that has already suffered the loss of one child, we are united in our support for Tim's death sentence to be commuted to life without parole. He committed a horrible act, but our grief will only be worsened if he is executed. We were not given the opportunity to speak out at his trial, but it is our deepest hope and prayer that the Texas Board of Pardons and Paroles and Gov. Rick Perry will hear us now.

Tim does not deserve to die. He acted strikingly out of character on that tragic day when he took the life of Timothy Jr. and attempted to take his own life, after an argument with his wife escalated out of control.

And:

From the moment the crime happened, Tim has been profoundly remorseful. We know that he would take back his actions in an instant if he could. He is a model prisoner who has spent his years on death row reflecting, seeking forgiveness, and devoting himself to prayer and to Jesus Christ.

Our strong opposition to Tim's death sentence has thus far gone unheard. Our voices were not heard at Tim's trial, so we were not able to tell the jury how, despite our pain and suffering, we still love Tim and could not bear to see him executed.

Perhaps if the jury had known that, Tim would not have received a death sentence.

Tim must be held accountable, but in doing so, we implore the State of Texas to keep the wishes of my already grieving family in mind. The Texas Board of Pardons and Paroles and the governor have the power to spare a life worth saving — and the power to spare us from further suffering.

Tim would still spend the rest of his days in prison, in constant remorse over what he did. He does not need to be executed for justice to be served.

We pray that state officials will hear our plea and grant clemency to Timothy, a man who is held dear by our church community, respected by his military commanders and work colleagues and loved by us — his family.

Earlier coverage of the case for Tim Adam's commutation begins at the link.

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.  There is more on the case at the Timothy Wayne Adams website.

You can sign a petition urging clemency at the website.  You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

More Calls for Clemency in Tim Adams' Case

"Grandparents plead for clemency for grandson's killer -- their son," is the video report on Houston's KHOU-TV.  It's reported by Kevin Reece.

The parents of a convicted murderer are pleading with the governor and the Texas Board of Pardons and Paroles to stop their son’s planned execution this month. Columbus and Wilma Adams say they don’t want to be victims again.

Timothy Wayne Adams is scheduled for execution on February 22, nearly nine years to the day since he shot and killed his 19-month-old son Timothy Jr. In a custody dispute with his wife, Adams became despondent and suicidal at his southwest Houston apartment.

At his trial in 2002, prosecutors said he had held his son at arm’s length and shot him in the chest, then shot him a second time on the ground.

"He was not in his right mind," said his mom, Wilma Adams, of the military veteran who had no previous criminal record. "I don't know what happened that day but he was not in his right mind. He just snapped. He just lost it."

Adams pleaded guilty and a Houston jury deliberated for two days before returning with a punishment of death by lethal injection. He is on death row at the Polunsky Unit in Livingston.

"This is pain that the family has suffered day in and day out," said his father, Columbus Adams.

This week, attorneys for Adams filed a clemency petition asking the Board of Pardons and Paroles to vote to spare Adams’ life and commute his sentence to life in prison without parole. The petition includes the testimony of Adams’ parents, who say they were first victimized by the death of their grandson and can’t face losing their son as well.

"We are victims, too. This is our grandson," said Wilma Adams.

And:

"I can't imagine to lose him completely," said Columbus Adams, who says he and his wife try to visit their son in prison at least once a week. "I don’t know what it would do to the family. We ask the board of pardon and paroles to please hear our cry."

The board is expected to consider the clemency petition late next week.

Earlier coverage begins with the post, "Family, Friends Urge Killer Be Spared."

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.  There is more on the case at the Timothy Wayne Adams website.

You can sign a petition urging clemency at the website.  You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

Another Drug Manufacturer Seeks to Restrict U.S. Access

Reuters posts, "Novartis moves to stop execution drug reaching US."  It's written by Katie Reid.

Novartis (NOVN.VX) and its Sandoz unit, maker of a generic version of an anaesthetic used in lethal injections in the United States, have taken steps to try to stop the drug ending up in the United States.

"Sandoz has also advised all of its subsidiaries with locally approved marketing authorisations for sodium thiopental to not sell the product to distributors or third parties that may be selling it into the U.S.," Novartis and Sandoz said in a statement.

Last month, U.S. specialty medicines maker Hospira Inc (HSP.N) said it was halting its production of sodium thiopental as it did not want it to be used in executions.

And:

"Sandoz and Novartis support only the authorized use of injectable thiopental, which is primarily indicated for the induction of anaesthesia, and do not support the sale of this or any product for use in non-approved treatments," Novartis and Sandoz said in a statement.

Sandoz makes injectable thiopental under contract for a third party located in the UK, which sells it directly to Archimedes Pharma.

The British group is responsible for the product's marketing and commercial supply under its respective UK marketing authorisation, Novartis and Sandoz said in the statement.

Novartis and Sandoz also said Sandoz does not market the drug in the United States or ship or sell directly to any third party selling this product into the United States.

Archimedes has never exported the product directly into the United States, Deborah Saw, a spokeswoman for the group said.

It sells the drug to a distributor, which then sells it to hospital pharmacies, primarily in Britain's National Health Service, and also to other wholesalers. Archimedes does not have information on specific end-purchasers or users of its products, she said.

"Novartis aims to keep death-penalty drug out of U.S.," is Tracy Staton's report for Fierce Pharma Manufacturing.

Yet another drugmaker has lodged a protest against capital punishment. Novartis, whose generics unit Sandoz makes a copycat version of sodium thiopental, says it is forbidding its distributors from channeling the drug into the U.S., where it might be used to execute death row prisoners. Meanwhile, 13 U.S. states are having so much difficulty getting the drugs they need for executions, they've asked the feds to step in and help.

This is just the latest in an ongoing tug-of-war over products that are part of lethal-injection drug cocktails, but are much more commonly used in hospitals. Hospira decided to stop making thiopental entirely; it had planned to move thiopental manufacturing to an Italian plant, but government officials there threatened action if Hospira didn't block its use in executions. Saying its distribution arrangements wouldn't allow for that guarantee, Hospira pulled the plug on thiopental instead.

It's not clear whether the Sandoz drug could still make it to the U.S. somehow: In demanding that distributors avoid it, the company said it couldn't guarantee that third parties wouldn't defy its request.

Related posts are in the lethal injection index.

Maryland Lethal Injection Regulations Pulled

"Md.'s halt to executions will continue; lethal-injection drug scarce," is the title of John Wagner's report in today's Washington Post.

Gov. Martin O'Malley's administration announced Thursday that it is withdrawing proposed regulations needed for executions to resume in Maryland, effectively extending a four-year moratorium on the death penalty.

Administration officials said the move was prompted by a U.S. company's recent decision to halt production of one of three drugs used for lethal injections in Maryland and many other states. The administration's proposed regulations specifically call for use of the drug, a powerful anesthetic known as sodium thiopental.

Rick Binetti, a spokesman for the Department of Public Safety and Correctional Services, said officials plan to submit new regulations to a legislative panel after reviewing a broad range of alternatives, including alteration of the state's use of a three-drug protocol.

"Putting a timetable on how long that will take is unrealistic at this point," Binetti said.

Lawmakers and others involved in the process suggested that a delay of six months could be possible. Maryland has five inmates on death row.

O'Malley (D), who opposes the death penalty, has been criticized by supporters of capital punishment for delays in implementing regulations called for by a 2006 court ruling.

Senate President Thomas V. Mike Miller Jr. (D-Calvert), a death-penalty supporter, said he considered the latest setback "very legitimate," however.

And:

"It is a broad problem that's still working its way through," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. "You either try something new, or you look overseas or somewhere else.. . . Whichever way you go, you may run into problems."

Larry Traylor, a spokesman for the Virginia Department of Corrections, said officials there are "in the same situation, and we're investigating our options."

Traylor said Virginia officials have no executions scheduled and would resolve the issue before another takes place. The state has 10 prisoners on death row.

In Maryland - which last executed a prisoner in 2005 - corrections secretary Gary D. Maynard notified a legislative review panel of his department's decision to withdraw its regulations in a letter made public Thursday.

"Many states are now in the process of reviewing and revising their protocols in light of this development," Maynard wrote to the co-chairmen of the Joint Committee on Administrative, Executive and Legislative Review.

Julie Bykowicz posts, "Death penalty repeal effort begins anew," at the Baltimore Sun.

Opponents of capital punishment say they have more co-sponsors than ever on legislation to repeal the state's rarely used death penalty.

The announcement by Del. Samuel I. Rosenberg on Thursday came as the Department of Public Safety and Correctional Services acknowledged it needs more time to rewrite the execution protocols — a process that has taken several years so far, creating a de facto moratorium.

Rosenberg, a Baltimore Democrat, submitted the repeal bill Thursday. The strategy this year, he and other supporters said, is to push the legislation through the more repeal-friendly House of Delegates before presenting it to the tougher-to-predict Senate.

But that approach appears likely to hit a wall: Controversial bills typically are vetted first by the Senate, which has the power to filibuster. House Speaker Michael E. Busch, who says he has some reservations about capital punishment but does not oppose it, said the Senate is "the appropriate place" for the legislation’s first hearing.

"Considering the Senate had the latest word on the death penalty," he said, "I would want to see whether they have any appetite to take it up again."

Gov. Martin O'Malley, a longtime death penalty opponent, made a major push for repeal two years ago. His efforts were halted by senators who instead chose to make the existing capital punishment statute more restrictive.

The AP report is, "Maryland pulls death penalty regs from state panel," via the Daily Record.

Gov. Martin O’Malley’s administration announced Thursday that it was withdrawing proposed lethal injection rules from consideration by a legislative panel, a move that effectively extends a de facto moratorium on capital punishment in Maryland.

The announcement was made on the same day that lawmakers who oppose the death penalty vowed to push again for repeal.

In a letter to the legislative panel’s two leaders, a top state official wrote that he needs to review the regulations, or protocols, because a lethal injection drug is no longer available for purchase in the United States.

“I will resubmit the regulations to you after the conclusion of this review,” Gary Maynard, secretary of the Maryland Department of Public Safety and Correctional Services, wrote in a letter dated Wednesday. Maynard, who said he received advice from the attorney general’s office, did not specify how long the review would take.

The state’s highest court ruled in December 2006 that executions can’t proceed in Maryland until the lethal injection rules are adopted by state lawmakers. O’Malley favors repealing the death penalty in the state.

Rick Binetti, a public safety department spokesman, said he could not provide a timeline for when the administration would send revised regulations back to the General Assembly’s Joint Committee on Administrative, Executive and Legislative Review.

And:

Maryland has five men on death row, and five inmates have been executed since Maryland reinstated the death penalty in 1978. Wesley Baker was the last person to be executed in Maryland, in December 2005.

"Md. death penalty repeal effort lives," is the title of Andrew Schotz' report for the Herald-Mail.

Democrats in Annapolis are trying again to repeal Maryland's death penalty.

Delegates and senators announced Thursday that they're resubmitting a bill to end capital punishment in Maryland, which has five people on death row.

One repeal advocate, Del. Anne Healey, D-Prince George's, also said the Maryland Department of Public Safety and Correctional Services has withdrawn proposed death-penalty procedures from review.

And:

Sen. Lisa Gladden, D-Baltimore City, has pushed for passage of a repeal in the Senate in recent years, but the strategy this session will be to try the House of Delegates first, she said.

Democrats have large majorities in both chambers.

As of Thursday, there were 61 House sponsors and 21 Senate sponsors, according to supporters, who called the death penalty ineffective, inhumane and discriminatory based on race and geography.

Almost all of the sponsors are Democrats, but, for the first time, there also are a few Republicans, said Jane Henderson, the executive director of Maryland Citizens Against State Executions.

GOP supporters on an MD CASE sponsor list include Dels. Warren E. Miller of Howard County and Susan L.M. Aumann of Baltimore County and Sen. Edward R. Reilly of Anne Arundel County.

Earlier coverage from Maryland begins with this editorial roundup; also:

• Maryland Lethal Injection Regulations
• Maryland - A Push for Lethal Injection Regulations

Coverage of the 2009 Maryland General Assembly's consideration of repeal legislation and eventual compromise law begins with the post, "The Maryland Legislation."

Judge Fogel and the Death Penalty

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

On Tuesday, Judge Jeremy Fogel of the Federal District Court in northern California toured a new facility at San Quentin State Prison for executing inmates. Five years ago, in Morales v. Tilton, he ordered the state to halt all executions after he found that the way it administered its lethal injection created too much risk that an inmate would suffer extreme pain.

The inspection was part of his review of a proposed new method for injecting those drugs to assess whether he should allow California to resume executions.

Judge Fogel stressed in his 2006 opinion that, in focusing on the administration of the lethal three-drug cocktail, “this case presents a very narrow question.” But that question cannot be answered unless the judge also asks the state why it believes that one of the drugs, sodium thiopental, is reliable.

After the sole American manufacturer stopped producing sodium thiopental, California imported it from Britain without Food and Drug Administration approval. The agency said that it would not review the drug’s efficacy because “reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of F.D.A.’s explicit public health role.”

Judge Fogel’s doubts about California’s use of the death penalty are comparatively recent. He rejected two other challenges to lethal injections as delaying tactics. In 2006, however, he stayed the execution of Michael Angelo Morales after the state failed to comply with his order that the injection be administered by a state-licensed medical professional.

Soon after, he began his own review of the execution method. One of his pivotal findings was that, in six of California’s 11 executions by injection, the “inmates’ breathing may not have ceased as expected” and they may well have been conscious when other drugs were given to paralyze and kill them. The state’s medical expert said that would be “terrifying” for someone being injected and “unconscionable.”

And:

For legislators in state capitols considering whether to abolish the penalty, however, this case has done much more than that. It has documented how lethal injection can be cruel and unusual punishment when unprofessionally administered and how the culture of prisons breeds that shoddy approach. It is one more reason to reject the death penalty as a barbaric punishment.

Earlier coverage begins with Judge Fogel's recent tour.

Let me also link to coverage of Judge Fogel's involvement in a scheduled execution last year, and a media event displaying San Quentin's new death chamber.

More on Judge Fogel's 2006 ruling is here.  Other posts examining Judge Fogel's federal court hearing on California lethal injection practices include:

• Deborah Denno on Judge Fogel's Decision
• The California LI Hearing
• California LI Hearing - Day 4
• California LI Hearing - Day 3
• California LI Hearing - Day 2
• California Hearing
• The Execution of Stanley Williams

Related posts are in the editorial and  lethal injection indexes.

A New Play Looks at Capital Punishment

Today's New York Times carries, "A Playwright Whose Time Seems to Be Now."  It's written by Reeves Wiedeman.

Writing a play about the death penalty should put you squarely in the middle of a moral debate. Yet Nathan Louis Jackson, whose “When I Come to Die” traces the emotional turmoil of an inmate whose execution goes mysteriously awry, insists that his play is not political and that it takes no sides.

“I have a weird thing about killing folks,” the 32-year-old Mr. Jackson said. “That being said, if somebody did something to my wife or my daughter, I might say, ‘I don’t care what you do to him, as long as I never see him again.’ “

But his play, which opens on Thursday night, and is Mr. Jackson’s second Lincoln Center Theater production, may frustrate viewers who want a polemic. And that’s just fine with its author.

“You’ll have people who come to the show and say, ‘Let’s see if he’s for this, or against this,’ “ Mr. Jackson said. “Some people aren’t going to like that I don’t make a statement.”

His shoulder-length dreadlocks cuffed tightly behind his head, Mr. Jackson watched from the last row of the Duke, on 42nd Street, where LCT3 is putting on the show through Feb. 26, while the actors onstage ran through a scene in which an inmate rehearses his last words: “Ladies and gentlemen, thank you for joining me on the day that I am to die.”

Chris Chalk (“Fences”) plays Damon, who is forced to wonder what to do with his suddenly extended life when a scheduled lethal injection doesn’t come off. He consults a priest (Neil Huff) and counsels a fellow inmate (David Patrick Kelly) while facing the uncertainty of whether he will face execution again, and when.

“Fascination with time” — and not the death penalty — Mr. Jackson said, is what got him going on the play, his second on a New York stage after “Broke-ology,” which was performed in 2009 at Lincoln Center’s Mitzi E. Newhouse Theater. (It was directed by Thomas Kail, as is the new play.) Imagine Stephen Hawking and not “Dead Man Walking,” as a key influence.

“I started thinking about people in weird time positions, and these cats know exactly how much time they have left on this earth,” Mr. Jackson explained. “But what happens if you get more of it?”

He set the story in Indiana, where 20 men have been executed since the death penalty was reinstated in 1977, rather than in Texas, whose 464 executions since 1982 have made it a political lightning rod. Yet Mr. Jackson still wanted to portray life on death row accurately. He researched the proper way to apply handcuffs; went on a prison tour with his mother-in-law, a former guard; and spoke with a cousin who had a son in prison. He also admits that his premise was improbable, though not impossible: executions are rarely botched.

Playbill has, "When I Come to Die, About a Spared Death Row Inmate, Opens Off-Broadway Feb. 10," by Adam Hetrick.

A death row inmate is granted an unlikely second chance in the world premiere of Nathan Louis Jackson's When I Come to Die, which officially opens Off-Broadway Feb. 10 after previews that began Jan. 31.

LCT3 presents the play about an inmate who survives a lethal injection, which is directed by Tony Award-nominated director Thomas Kail (In the Heights, Lombardi). Performances will continue through Feb. 26 at the Duke on 42nd Street.

When I Come to Die reunites playwright Jackson and director Kail. The two collaborated on the world premiere of Broke-ology at the Williamstown Theatre Festival and for LCT in 2009.

Chris Chalk (Fences) is cast as Damon Robinson, the inmate who gets a second chance, in a cast that also features Michael Balderrama (In the Heights), Neal Huff (Take Me Out), David Patrick Kelly (Festen) and Amanda Mason Warren (The Golden Age).

According to LCT3, "When I Come to Die tells the tale of Damon Robinson, a death-row inmate, who struggles to find faith and hope and understand why his life has been spared after he survives a lethal injection."

And from the New Yorker:

Thomas Kail directs a new drama by Nathan Louis Jackson (“Broke-ology”), set in an Indiana prison, about a death-row inmate whose execution is botched. An LCT3 production. In previews. Opens Feb. 10. (The Duke on 42nd Street, 229 W. 42nd St. 646-223-3010.)

A Voice From The Tennessean

Dwight Lewis is the editorial page editor and a columnist at the Tennessean.  Today's column is, "End death penalty; it is costly, ineffective."

How far should a state go to put a condemned prisoner to death? I raise that question today after learning that Tennessee Attorney General Robert Cooper joined 12 other state attorneys general late last month to ask U.S. Attorney General Eric Holder to help their states be able to perform executions.

Instead of asking Holder for such help, why don't these states just do away with the death penalty and sentence people who commit heinous crimes such as murder to life in prison without the possibility of parole?

In other words, treat them humanely, but throw away the key if we are absolutely sure we have the person who committed the crime.

And:

On Feb. 16, Davidson County Chancellor Claudia Bonnyman is expected to rule on the state's request to resume executions, which was made on Jan. 21. State officials claim they now have a new procedure in place, in which a prison warden would be required to check to see if the condemned prisoner is unconscious before receiving a lethal dose of drugs.

Since when did a prison warden become a doctor?

But just as Tennessee officials seek to resume executions, a federal judge in California is said to have convened a most unusual hearing Tuesday at San Quentin Prison. The hearing took place as U.S. District Judge Jeremy Fogel toured the state's new $900,000 death chamber as part of proceedings aimed at helping him decide whether to restart lethal injections — a procedure he put on hold five years ago.

At the time, Fogel ruled that California's method constituted cruel and unusual punishment because of questions about how long it took a prisoner to die and the possibility of pain and discomfort before death.

Bonnyman has previously ruled that Tennessee's use of a three-drug cocktail to execute prisoners "allows for death by suffocation while conscious.''

Again, why not sentence people who commit first-degree murder to life in prison without the possibility of parole? It would save the state a lot of money, and it would be more humane.

Earlier coverage from Tennessee begins at the link. Earlier posts also include:

• Tennessee Lethal Injection Commentary
• Tennessee's Lethal Injection Challenge
• Tennessee Supreme Court Stays Scheduled Execution

North Carolina RJA Ruled Constitutional

The breaking news headline from the News & Observer is, "Racial Justice Act for death row inmates survives court challenge," by Anne Blythe.

The fledgling Racial Justice Act survived its first challenge when a Forsyth County judge rejected contentions by prosecutors that the law was too sweeping to comply with the N.C. Constitution.

Judge William Z. Wood issued his findings today in Forsyth County Superior Court.

The Winston-Salem courthouse has been the setting for the first wave of death row inmates seeking relief from their sentences under the 18-month-old law.

The Racial Justice Act, passed narrowly along party lines in 2009, provides people convicted and accused in capital cases a legal avenue for challenging their plights using statistics and anecdotal evidence to bolster racial bias claims.

Errol Duke Moses and Carl Stephen Moseley, death row inmates since the 1990s, are using statistics and findings from a Michigan State University study to claim racial imbalance and bias played a role in their trials and sentencing in Forsyth County.

Their cases are the first of the 154 death row inmates seeking relief under the law to get to a courtroom.

"This vindicates the decision of the legislature to examine whether racial bias is tainting death sentences in this state," said Ken Rose, an attorney from the Center for Death Penalty Litigation representing Moses.

Earlier this week, prosecutors tried to pick apart the law, saying it was too sweeping to apply fairly across the state.

"Forsyth judge upholds Racial Justice Act," is the Winston-Salem Journal's initial report by Michael Hewlett.

Judge William Z. Wood of Forsyth Superior Court rejected the arguments of Forsyth County prosecutors that the Racial Justice Act, signed into law in August 2009, was too broad and vague and was subject to multiple interpretations. He was the first judge in North Carolina to hear cases involving the Racial Justice Act, and the hearings were being closely watched by prosecutors from across the state as well as supporters of the law.

The law allows death-row inmates and defendants facing the death penalty to use statistics and other evidence to prove that racial bias played a "significant factor" in their sentence or in prosecutors' decision to pursue the death penalty. The only remedy under the law is to reduce an inmate's sentence to life in prison.

And:

The law was prompted partly by the case of Darryl Hunt, who attended the hearings this week. Hunt was exonerated in 2004 on charges that he killed Deborah Sykes in 1984 after new DNA evidence led police to a new suspect, who confessed.

The AP report, "Racial Justice Act for death row appeals upheld," is via WRAL-TV.  The first quote in this excerpt is from attorney Ken Rose, who represents death row inmates.

The Forsyth County case was the first, and so far only, legal challenge to the law. The proceedings were closely followed around the state, with some prosecutors from other districts attending court sessions in Winston-Salem this week to listen to arguments in the case.

Rose said Wood's ruling bolsters what attorneys for the inmates have argued all along. "It's very significant," he said.

Tye Hunter, executive director of the Durham-based Center for Death Penalty Litigation, which has coordinated efforts to file cases on behalf of inmates under the new law, said Friday the ruling was not a surprise.

"I thought the state's arguments were borderline frivolous," he said. "As legal arguments, I thought they were very weak."

Earlier coverage begins with the posts, "North Carolina RJA to the Test."

News coverage from the hearing includes, "Racial Justice Act before judge," and "Racial Justice Act faces test."  Both are by Blythe.  Winston-Salem Journal coverage includes, "Arguments heard in Racial Justice Act cases; judge to rule later," and, "Racial Justice Act gets first test Monday."  Both are by Hewlett.  The North Carolina News Service posted, "Death Row Attorneys: Racial Justice Act Constitutional," by Stephanie Carroll Carson.

Montana Repeal Bill Approved by Senate Judiciary Committee

"Legislators advance ban on death penalty in Montana," is the initial AP report via the Missoulian.

A proposed ban to the death penalty in Montana is headed to a vote on the Senate floor.

The Senate Judiciary Committee voted 7-5 Thursday in favor of replacing the death penalty with life in prison without the possibility of parole.

Supporters of the repeal argue the possibility of wrongfully putting an innocent person to death makes the death penalty unjust. Those who want to keep the death penalty argue it makes sense for those who commit heinous crimes.

Sen. Anders Blewett of Great Falls says capital punishment is unfair because it is disproportionally levied against the poor.

"Death penalty ban advances in Mont. legislature," is an updated AP report, via NECN.

Senate Bill 185 gained the support of two key Republicans on Thursday, Sen. Jim Shockley and Sen. Greg Hinkle, to send it out of committee

Hinkle, of Thompson Falls, said he supported the measure because he thought the issue was bigger than the committee. He said he is sympathetic to both sides of the issue and remained unsure if he would support the measure on the Senate floor.

"I believe it needs to be on the Senate floor and have the people of Montana have a greater discussion," Hinkle said. "This issue is so big that the people need to have their own representatives have a say."

Supporters of the repeal argue the death penalty is immoral, expensive and irreversible in the case of wrongful conviction. They also say investigators can use the threat of capital punishment to manipulate suspects.

And:

SB 185 was sponsored by Sen. David Wanzenried, D-Missoula. The hearing Tuesday drew emotional testimony from relatives of murder victims, church leaders, state prosecutors and jail wardens.

A similar measure passed the Senate last session but was tabled in a House committee. Wanzenried hopes this bill will pass, despite Republican majorities in the House and Senate.

Earlier coverage from Montana begins at the link.