The StandDown Texas Project

Friday

I'll be traveling today.  Posting will resume as WiFi allows.

Take the opportunity to visit sites linked in the left-column, especially the Daily Must Reads.

California Governor Scraps Death Row Expansion

California Governor Jerry Brown's news release this afternoon is, "Governor Brown Cancels Plan to Build New $356 Million Condemned Inmate Housing Facility at San Quentin."

Acting to save taxpayers hundreds of millions of dollars, Governor Edmund G. Brown Jr. today canceled plans to build new housing for condemned inmates at San Quentin.

“At a time when children, the disabled and seniors face painful cuts to essential programs, the State of California cannot justify a massive expenditure of public dollars for the worst criminals in our state,” said Brown. “California will have to find another way to address the housing needs of condemned inmates. It would be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us.”

Planning for a new condemned inmate housing facility at San Quentin was initiated in 2003, during the administration of Governor Gray Davis, and was continued by Governor Arnold Schwarzenegger’s administration. The project was designed to house 1,152 inmates and provide for future growth of California’s condemned population. California currently has fewer than 700 inmates awaiting death sentences.

This project would have added another $356 million to the state’s debt, at an annual cost of $28.5 million in debt service that would have come out of General Fund dollars.

The initial AP report is, "Brown cancels plans for new housing at San Quentin," via the Silicon Valley Mercury News.

Gov. Jerry Brown has canceled plans for a new $356 million death row complex at San Quentin State Prison.

Brown said on Thursday that the state cannot justify the expense at a time of massive cuts to education and other essential services.

Plans for the new death row complex were approved in 2003 by former Gov. Gray Davis and continued to be developed under Gov. Arnold Schwarzenegger. The complex was designed to house 1,152 inmates, allowing California's condemned population to grow. The state currently has less than 700 inmates awaiting death sentences.

But critics called the project a boondoggle and said the proposed construction site on the eastern edge of San Quentin could be put to better use.

Marin County filed a lawsuit last year to block the state from beginning construction.

"Brown Cancels California’s $356 Million ‘Cadillac’ Death Row," at Bloomberg, by Michael B. Marois.

California Governor Jerry Brown scuttled plans to build a $356 million new death row at San Quentin prison that some lawmakers derided as a “Cadillac” because of its cost.

Brown said it would be “unconscionable” to go ahead with the complex north of San Francisco, planned since 2003, when the state is cutting jobs and services to bridge a deficit.

California, which holds the largest number of death-row prisoners in the U.S., faces a resurgent budget deficit equal to nearly 20 percent of the general fund. Interest on prison construction bonds would have cost $28.5 million a year.

And:

The project design called for 768 new cells. While inmates now live one to a cell, the prison system had planned to double- bunk to make room for 1,152 men. Opponents such as Huffman said that might have violated prisoners’ rights and could be challenged in court.

Putting two inmates in each cell would provide enough capacity for death row until 2035, according to the state auditor. If the state couldn’t double-up, the complex would be full by 2014.

Brown opposed capital punishment during his first two terms as governor, from 1975 to 1983. Before his current term, he was attorney general from 2007 to 2011 and, in that role, he defended the death penalty.

"California cancels new San Quentin death row," at CNN by Charles Riley.

"It would be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us," Brown said.

In addition to the headline cost, the state would have been on the hook for $28.5 million in annual debt service that would have come out of California's general fund.

"Jerry Brown pulls plug on building San Quentin's new death row,"is the Sacramento Bee post.

Brown said in a statement that he believes it would "be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us."

That bill would add an estimated $28.5 million general fund costs in annual debt service payments, his office said.

Earlier coverage of California death penalty costs begins at the link.  Notable costs include:

• The Cost Factor in California
• Judge Tours California Execution Chamber
• More Cost Issues From California

 

Costly, Capricious, Arbitrary

"Executing Justice: Based on a True Story," is the title of Barney Brantingham's current On the Beat column in the California's Santa Barbara Independent.

Since the U.S. Supreme Court reinstated the death penalty in 1976, Texas leads the field in number of executions, with 466, far ahead of No. 2, Virginia, with 108. California ranks 16th, with 13 executions, none so far this year.

But the Golden State does lead the pack with 713 inmates waiting on death row, 10 sentenced by Santa Barbara County courts. The scales of justice could yet work in their favor: In recent years, an annual average of about seven falsely convicted inmates around the U.S. have been exonerated.

And, Brantingham refers to John Grisham's novel, The Confession:

Sixteen states have abolished capital punishment, including (surprise) my homeland of Illinois. I doubt if most murderers give much thought to the consequences, but if they did, they might want to do the deed somewhere outside the South. That’s where 80 percent of executions take place. A study in California found that people who killed whites were three times more likely to be sentenced to death than those who killed blacks, and four times more likely than those who killed Latinos.

The accounts of mangled jurisprudence in Grisham’s novel could have been torn from the pages of countless real cases. At least one surely was: As attorneys frantically deliver evidence that could save the youth’s life, the door to the Texas Court of Criminal Appeals is shut in their faces at the strict 5 p.m. as the judge, well aware of the potential appeal, heads off for a tennis date.

Santa Barbara attorney Robert Landheer told me of a true-life 2007 case where Grisham likely got the idea: Although attorneys had asked that the court remain open for a last-minute appeal, the Texas Court of Criminal Appeals’ head judge ordered it closed on the dot at 5 p.m. The inmate was executed a few hours later, an appeal that could have saved his life unheard.

Landheer, who finds the death penalty “arbitrary and capricious,” cited the Death Penalty Focus group’s “Ten Reasons to Oppose the Death Penalty”: Wrongful executions of innocent people. The high costs involved. Prolonged suffering for families of victims. So far, 139 nations, including most Western democracies, have abandoned the death penalty. Inadequate legal representation for defendants. No demonstration that it deters. “Although isolated passages of religious scripture have been quoted in support of the death penalty, almost all religious groups in the U.S. regard executions as immoral.” Race of the victim and of the defendant are major factors in determining the sentence. Life in prison without possibility of parole is an alternative.

In view of the costs involved, you’d think the budget-cutters would home in on the issue.

Earlier coverage of California cost issues begins at the link; related posts are in the cost index.

Clark County Struggles With Capital Costs

"Commissioners question spending on death penalty cases," is the title of Joe Schoenmann's report for today's Las Vegas Sun.

During a meeting to examine how to balance next fiscal year’s budget, Clark County elected officials hammered on District Attorney David Roger, questioning whether the county’s top prosecutor tries too many costly death penalty cases.

Commissioner Steve Sisolak said he recently received some 50 phone calls and e-mails from constituents after a newspaper reported 80 death penalty cases pending in the county.

That compares to Riverside County in California, about the same size as Clark County, which has 40 pending death penalty cases, according to figures provided to the Sun by the county Public Defenders Office. Los Angeles County, five times Clark County’s size, has 33 pending death penalty cases.

After Wednesday’s meeting, county officials estimated it costs about $250,000 to defend a death penalty case versus about $50,000 for a non-death penalty murder case.

Roger blamed the Public Defenders Office, saying it strategically withholds background information on some defendants until the end of a case. If Roger’s office had the information earlier, it might reduce the number of times the death penalty is sought, he said.

During the meeting, Commissioner Chris Giunchigliani asked Roger for a cost, or average cost, per death penalty case.

Roger didn’t know the answer.

“Do we not have numbers?” Giunchigliani asked.

Roger then attacked Giunchigliani as being “anti-death penalty.”

Giunchigliani said the exchange wasn’t a philosophical discussion; it was about the county budget, which has to be cut.

Commissioner Tom Collins echoed Giunchigliani’s complaint, saying he couldn’t understand “why our folks who deal with courts can’t provide us with what it costs per burglary, per car theft, per this, per that and the other.”

And:

Sisolak pleaded with Roger to work with the Public Defenders Office to figure out ways to share more information ahead of time to potentially reduce the number of death penalty cases filed.

Earlier in the meeting, county staff gave commissioners a preliminary look at budget cuts to meet a $100 million shortfall in the coming fiscal year. In summary, the county expects to cut 82 filled positions and eliminate 115 vacant positions to save almost $39 million.

The Las Vegas Review-Journal carries, "County budget woes likely to mean more staff cuts," by Scott Wyland.

Eighty-two workers would be laid off and 126 vacant jobs would be cut under a budget plan that sparked tense discussion among Clark County commissioners Wednesday.

The prolonged recession has left the county with a $100 million shortfall in its $1.2 billion general fund, which covers daily operations and is fed mostly with taxes and fees.

The reduced staffing would save the county about $39 million and offset money that must be pulled from a reserve to fill the gaping budget hole.

It's the third year in a row the county has had to slash jobs.

And:

District Attorney David Roger's plan called for eliminating seven vacant jobs but no layoffs. Roger has stated he needs his current staffing to adequately prosecute criminals.

Commissioner Chris Giunchigliani haggled with Roger about why he was pursuing roughly 80 death penalty cases that ate up his attorneys' time and cost millions of dollars.

Roger said the volume was partly because appeals slow the process and cause cases to logjam. Also, he believes in prosecuting to the full extent of the law, he said.

But Commissioner Larry Brown said Roger might consider accepting more life-without-parole sentences if that will save some law enforcement jobs.

In a budget crisis, those in charge must make difficult decisions that affect a lot of people, Brown said. "This year we're going to make bigger decisions than last year."

Related posts are in the cost index.

Thursday

I'll be out of the office Thursday morning.  Posts should resume by 12:00 noon.

Head in the Sand Over Prosecutorial Misconduct

That's the title of commentary at the National Law Journal by Erwin Chemerinsky, Dean of the University of California, Irvine School of Law.  It's subtitled, "The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system."

The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

Two years ago, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Court dismissed a suit against prosecutors by a man who spent 24 years in prison for a murder that he did not commit. Tommy Lee Goldstein was convicted of murder even though there was no physical evidence linking him to the crime, no eyewitness and no confession. The key evidence against Goldstein was the testimony of two witnesses who said that they heard him admit to the killing. One later recanted.

And:

The Supreme Court has held that prosecutors have absolute immunity for their prosecutorial acts, but only qualified immunity for their administrative and investigative acts. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). Goldstein argued that his suit was based on the administrative failure of the district attorney, including the failure to adequately train and supervise district attorneys on the need to disclose impeachment material. The Supreme Court rejected this argument and declared: "[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here."

On March 29, in Connick v. Thompson, 2011 WL 1119022 (U.S.), the Court ruled against a man who was convicted and spent 18 years in prison, and 14 years on death row, because of prosecutorial misconduct. One month before he was to be executed, John Thompson's defense lawyers found blood evidence that prosecutors possessed, but did not disclose, that exonerated him for an armed robbery for which he had been convicted and that greatly affected his murder trial.

Two days before Thompson's trial, the assistant district attorney received the crime lab's report, which stated that the perpetrator had blood type B. The defense was not told of this, not at the trial and not until the report was discovered shortly before Thompson's scheduled execution. Thompson has type O blood.

The district attorney conceded that it violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), in not turning over the blood evidence. Thomp­son sued for prosecutorial misconduct, and a jury awarded him $14 million. But the Supreme Court reversed, in a 5-4 decision, and held that the city could not be held liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the Court, said that a single instance of prosecutorial misconduct was not enough to show sufficient deliberate indifference to allow the city to be sued.

But as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion, this was not a single instance of misconduct. She wrote: "Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.…What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish."

These two cases share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Related posts are in the prosecutorial misconduct index.  Earlier coverage of John Thompson's case begins at the link.

Mumia Abu-Jamal

The U.S. Court of Appeals for the Third Circuit ruling in Abu-Jamal v. Beard is availble in Adobe .pdf format.

"US court grants new sentencing for Mumia Abu-Jamal," is the AP report, via Google News.  Here's an extended excerpt:

A federal appeals court on Tuesday ordered a new sentencing hearing for convicted police killer and death-row activist Mumia Abu-Jamal, finding for a second time that the death-penalty instructions given to the jury at his 1982 trial were potentially misleading.

The 3rd U.S. Circuit Court of Appeals told prosecutors to conduct the new sentencing hearing for the former Black Panther within six months or agree to a life sentence. Abu-Jamal's first-degree murder conviction still stands in the fatal shooting of Officer Daniel Faulkner, who was white.

District Attorney Seth Williams pledged to mount another appeal to the U.S. Supreme Court, at the urging of Faulkner's widow, Maureen.

"Yes, the criminal justice system in Philadelphia, the criminal justice system in America, have had a history of problems and racism," said Williams, the city's first black district attorney. "(But) this is not a whodunit."

Abu-Jamal's worldwide followers "don't know the facts," Williams said.

Defense lawyers said the ruling addresses "an unfortunate chapter in Pennsylvania history."

"Pennsylvania long ago abandoned the confusing and misleading instructions and verdict slip that were relied on in Mr. Abu-Jamal's trial in order to prevent unfair and unjust death sentences," said Widener University law professor Judith Ritter, who argued the most recent appeal in November. "Mr. Abu-Jamal is entitled to no less constitutional protection."

Tuesday's ruling is the latest in Abu-Jamal's long-running legal saga.

A federal judge in 2001 first granted him a new sentencing hearing because of the trial judge's instructions on aggravating and mitigating factors. Philadelphia prosecutors have been fighting the order since, but the 3rd Circuit ruled against them in a pivotal 2008 decision.

In rejecting a similar claim in an Ohio death-penalty case last year, the Supreme Court ordered the Philadelphia appeals court to revisit its Abu-Jamal decision.

On Tuesday, the 3rd Circuit judges stood their ground and noted differences in the two cases.

Under Pennsylvania law, Abu-Jamal should have received a life sentence if a single juror found the mitigating circumstances outweighed the aggravating factors in Faulkner's slaying. The three-judge appeals panel found the verdict form confusing, given its repeated use of the word "unanimous," even in the section on mitigating circumstances.

"The Pennsylvania Supreme Court failed to evaluate whether the complete text of the verdict form, together with the jury instructions, would create a substantial probability the jury believed both aggravating and mitigating circumstances must be found unanimously," Judge Anthony J. Scirica wrote in the 32-page ruling.

The decision upholds the 2001 ruling by U.S. District Judge William H. Yohn Jr., who first ruled that the flawed jury instructions warranted a new sentencing hearing. While prosecutors were fighting that ruling, Abu-Jamal has been trying unsuccessfully to have his conviction overturned.

"Federal appeals court orders a new sentencing hearing for Mumia Abu-Jamal," is the title of Nathan Gorenstein's report for the Philadelphia Inquirer.

Philadelphia District Attorney Seth Williams said he kept a campaign promise Tuesday. He made a telephone call to Maureen Faulkner and asked her what to do about Mumia Abu-Jamal.

Leave him to spend life in prison, he asked, or keep seeking the death penalty for the murder of her husband, Police Officer Daniel Faulkner, in 1981?

She chose the death penalty, Williams said.

It means the case of Abu-Jamal, now 57 and perhaps the best-known death-row inmate in the world, is headed back to the U.S. Supreme Court. So intricate is the legal wrangling that any final resolution is likely years away.

Williams' early-morning conversation was prompted by a federal appeals court's just-released decision that a new jury should be impaneled to reconsider whether Abu-Jamal receives a death sentence or life in prison.

It was the second time the U.S. Court of Appeals for the Third Circuit had ruled for Abu-Jamal on the issue, both times citing confusing language in the 1982 jury instructions. The first decision, in 2008, was overturned by the Supreme Court, which told the Third Circuit Court to reconsider in light of a more recent ruling by the high court.

It did, and it came to the same conclusion.

Now, Williams will ask the Supreme Court to overturn the appellate court again.

He could have done otherwise.

He said the 32-page Third Circuit ruling left him with three choices: Drop the legal battle and leave Abu-Jamal to serve a life sentence; impanel a new jury and again seek the death penalty; or appeal to the Supreme Court to uphold the death sentence.

"D.A. to appeal court ruling for Abu-Jamal resentencing," in the Philadelphia Daily News, written by Michael Hinkelman.

Yesterday's ruling was the result of a U.S. Supreme Court decision last year that ordered the appeals court to review its 2008 ruling that ordered a new sentencing hearing for the former Black Panther. Both yesterday and in 2008, the appeals court ruled that Abu-Jamal's murder conviction should stand but called for a new sentencing hearing because death-penalty jury instructions were misleading.

The Supreme Court ordered the review because of a related case out of Ohio regarding jury instructions in a death-penalty trial.

But the three-judge panel on the appeals court said Abu-Jamal's case was different from the Ohio case because the verdict form was confusing and repeatedly used the word "unanimous," even in the section on mitigating circumstances. Under state law, Abu-Jamal should have received a life sentence if a single juror found that mitigating factors outweighed aggravating factors.

Judge Anthony Scirica, writing in yesterday's 32-page opinion, said the ultimate responsibility for the dispute over jury instructions lay with the Pennsylvania Supreme Court, which repeatedly upheld Abu-Jamal's death sentence since the late 1980s.

That court "failed to evaluate whether the complete text of the verdict form, together with the jury instructions, would create a substantial probability the jury believed both aggravating and mitigating circumstances must be found unanimously," Scirica wrote.

Judith Ritter, a Widener University law professor who represents Abu-Jamal, said yesterday that the state had "long ago abandoned the confusing and misleading instructions and verdict slip" that were relied on at Abu-Jamal's trial in order to "prevent unfair and unjust death sentences."

Law.com's Legal Intelligencer carries, "Abu-Jamal Wins Round in Challenge to Death Sentence."  It's written by Shannon P. Duffy.

Assistant District Attorney Hugh J. Burns Jr. had argued that the issues in Abu-Jamal's case were "virtually identical" to the issues addressed by the U.S. Supreme Court in Smith v. Spisak , and that the 3rd Circuit was therefore compelled to reinstate Abu-Jamal's death sentence.

But Scirica, who was joined by Judges Thomas L. Ambro and Robert E. Cowen, disagreed.

"Unlike the jury in Spisak ," Scirica wrote, "the jury here was required to specify not only the aggravating circumstances it found but also mitigating circumstances, to do so simultaneously, to choose aggravating and mitigating circumstances from visually identical lists, and to represent its findings as to each in an identical manner."

In the Spisak case, Scirica noted, the jury had already deliberated on aggravating factors in the first phase of the trial.

But in Abu-Jamal's case, the jury considered aggravating and mitigating factors at the same time and filled out a verdict form that suggested unanimity was required for both, Scirica found.

"The parallel structure of the form in relation to aggravating and mitigating circumstances reads that findings as to each should be made similarly," Scirica wrote in the 32-page opinion in Abu-Jamal v. Pennsylvania Department of Corrections .

"There is a substantial probability the word 'unanimously' was understood by the jury to modify and refer to the finding of both aggravating and mitigating circumstances," Scirica wrote.

Both Abu-Jamal's case and Frank G. Spisak's case hinged on how the courts should apply Mills v. Maryland — a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.

In Mills , the justices held that juries in capital cases must be unanimous in finding any aggravating factor that supports a death sentence, but that unanimity cannot be required for mitigating factors — those that weigh against imposing a death sentence — so that any individual juror would be free to vote against death.

In response to Mills , the Pennsylvania Supreme Court in February 1989 adopted a uniform sentencing verdict form for capital cases that makes it explicit that unanimity is not required in determining the existence of mitigating factors.

But dozens of inmates on Pennsylvania's and other states' death rows whose convictions predated Mills have argued that the jury instructions and verdict forms in their trials were ambiguous and confusing.

In Spisak , the U.S. Supreme Court reversed a decision by the 6th Circuit that overturned a death sentence because of a Mills violation.

Justice Stephen G. Breyer found that Spisak's jury would not have been confused because "neither the instructions nor the forms said anything about how — or even whether — the jury should make individual determinations that each particular mitigating circumstance existed."

Now Scirica has concluded that Breyer's reasoning cannot be applied to Abu-Jamal's case.

"In light of what the form and instructions both said and implied, and the repeated emphasis on unanimous findings, it is notable that neither the verdict form nor the judge's charge indicated in any manner that the jury should apply the unanimity requirement to its finding of aggravating but not mitigating circumstances," Scirica wrote.

The fact that Pennsylvania courts altered the verdict forms used in capital cases immediately after Mills is evidence that the previous forms were flawed, Scirica found.

"These clarifications highlight the ambiguity at issue in this case and on their own serve at least to suggest the substantial probability that some jurors were prevented from considering factors which may call for a less severe penalty," Scirica wrote.

In her syndicated column, Democracy Now!'s Amy Goodman writes, "Capital punishment: America's worst crime."  It's via the Guardian.

The death penalty case of Mumia Abu-Jamal took a surprising turn this week, as a federal appeals court declared, for the second time, that Abu-Jamal's death sentence was unconstitutional. The third US circuit court of appeals, in Philadelphia, found that the sentencing instructions the jury received, and the verdict form they had to use in the sentencing, were unclear. While the disputes surrounding Abu-Jamal's guilt or innocence were not addressed, the case highlights inherent problems with the death penalty and the criminal justice system, especially the role played by race.

Early on 9 December 1981, Philadelphia police officer Daniel Faulkner pulled over a car driven by William Cook, Abu-Jamal's brother. What happened next is in dispute. Shots were fired, and both Officer Faulkner and Abu-Jamal were shot. Faulkner died, and Abu-Jamal was found guilty of his murder in a court case presided over by Judge Albert Sabo, who was widely considered to be a racist. In just one of too many painful examples, a court stenographer said in an affidavit that she heard Sabo say, in the courtroom antechamber, "I'm going to help them fry the n****r."

This latest decision by the court of appeals relates directly to Sabo's conduct of the sentencing phase of Abu-Jamal's court case. The Pennsylvania supreme court is considering separate arguments surrounding whether or not Abu-Jamal received a fair trial at all. What the court of appeals unanimously found this week is that he did not receive a fair sentencing.

And:

Despite his solitary confinement, Abu-Jamal has continued his work as a journalist. His weekly radio commentaries are broadcast from coast to coast. He is the author of six books. He was recently invited to present to a conference on racial imprisonment at Princeton University. He said (through a cellphone held up to a microphone):

"Vast numbers of men, women and juveniles … populate the prison industrial complex here in America. As many of you know, the US, with barely 5% of the world's population, imprisons 25% of the world's prisoners … the numbers of imprisoned blacks here rivals and exceeds South Africa's hated apartheid system during its height."

The United States clings to the death penalty, alone in the industrialised world. In fact, it stands with China, Iran, North Korea, Saudi Arabia and Yemen as the world's most frequent executioners. This week's decision in Mumia Abu-Jamal's case stands as one more clear reason why the death penalty should be abolished.

The NAACP Legal Defense Fund issued the news release, "Mumia Abu-Jamal's 1982 Death Sentence is Again Declared Unconstitutional."

The United States Court of Appeals for the Third Circuit has unanimously declared that Mumia Abu-Jamal’s death sentence is unconstitutional.  In today’s decision, the Court of Appeals reaffirmed its 2008 finding that Mr. Abu-Jamal’s sentencing jury was misled about the process for considering evidence supporting a life sentence.  The Court found that, in violation of the United States Supreme Court’s 1988 decision in Mills v. Maryland, the jury was improperly led to believe that that it could only consider unanimously agreed upon evidence favoring a life verdict.  This mistake rendered Mr. Abu-Jamal’s death sentence fundamentally unfair.  The NAACP Legal Defense & Educational Fund, Inc. (LDF) and Professor Judy Ritter of Widener Law School represent Mr. Abu-Jamal in this appeal of his 1982 conviction and death sentence for the murder of a police officer in Philadelphia, Pennsylvania.

“This decision marks an important step forward in the struggle to correct the mistakes of an unfortunate chapter in Pennsylvania history,” said John Payton, Director-Counsel of LDF.  “Again acknowledging the existence of clear constitutional error in Mr. Abu-Jamal’s trial, the Court of Appeals’ decision enhances confidence in the criminal justice system and helps to relegate the kind of unfairness on which this death sentence rested to the distant past.”

Prof. Ritter noted that, “Pennsylvania long ago abandoned the confusing and misleading instructions and verdict slip that were relied on in Mr. Abu-Jamal’s trial in order to prevent unfair and unjust death sentences.  Courts now use clear and unambiguous language to advise sentencing juries about their ability to consider evidence that favors a life verdict.  Mr. Abu-Jamal is entitled to no less constitutional protection.”

Alabama to Switch Lethal Injection Drug

"Alabama switches key drug for execution next month," is the title of the AP report by Bob Johnson, via Forbes.  A shorter version is available from the Birmingham News; another version, via Google News.

Alabama announced Tuesday that it was switching out a key drug used in lethal injections earlier than expected, a move that will be challenged by a condemned inmate scheduled to die in less than a month.

Like several other states, Alabama has turned over its supply of sodium thiopental to the Drug Enforcement Agency after questions were raised about how and where the states received the drug. The drug pentobarbital will now be used as part of the state's three-drug execution cocktail instead of sodium thiopental, Alabama prisons spokesman Brian Corbett said.

The change comes after attorneys for death row inmate Jason Oric Williams wrote U.S. Attorney General Eric Holder, asking the federal government to investigate whether Alabama's supply of sodium thiopental was illegally obtained from Tennessee. That states supply of the drug has also been seized by the DEA.

At least 10 states have switched to pentobarbital or are considering a switch as part of their three-drug methods because of a nationwide shortage of sodium thiopental, a sedative that states used for more than three decades until its only U.S. manufacturer stopped making it in 2009 and then dropped plans to resume production earlier this year.

Alabama has used sodium thiopental since switching from the electric chair in 2002.

An attorney for Williams said he will ask the courts to stop Williams' May 19 execution because the state is changing the drug.

"The state should not be able to make up on the fly how it is going to carry out executions," Bryan Stevenson said.

He claims pentobarbital works differently from sodium thiopental.

"The reliability and legality of the death penalty requires clear and carefully documented execution protocols which the state of Alabama has not developed," Stevenson said.

Alabama's Equal Justice Initiative has issued the news release, "Alabama's Illegal Execution Drugs Seized by the DEA."

Two days after EJI filed a complaint with the Department of Justice, Alabama officials this afternoon admitted that the state's supply of sodium thiopental obtained from Tennessee has been seized by the DEA and will not be available for scheduled executions in May and June.

The State is now asserting that it will change the execution drugs and protocol without previously disclosing that information to the Alabama Supreme Court who scheduled executions for condemned prisoners several weeks after the drugs had been seized.

EJI contends that the State is not being forthright or transparent about how it plans to carry out these executions and that the Department of Corrections should not be allowed to make up procedures for carrying out executions without accountability or transparency and in a manner that suggests some deception.

According to EJI Executive Director Bryan Stevenson, "There are different training requirements necessary for the administration of different drugs, but the Alabama Department of Corrections has not established that it has satisfied the necessary preparations and training for carrying out a new execution protocol responsibly, nor has the court approved these protocols."

The State's conduct raises questions about the legality and the propriety of the scheduled executions. "In the absence of administrative oversight, the court needs more information than the State has provided regarding their plans for carrying out these executions," Stevenson said.

Earlier coverage of Alabama lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Still More on Denkowski Payments From Harris County

Mike Tolson posts, "Psychologist takes slap on wrist, forfeits lucrative niche practice," at the Houston Chronicle MedBlog.

Fort Worth psychologist George Denkowski lost not only a large share of public credibility when he agreed to accept a slap on the wrist from the Texas State Board of the Examiners of Psychologists, but he also forfeited a lucrative niche practice doing evaluations of capital murder defendants or death row inmates whose lawyers are making a claim of mental retardation.

How lucrative? Invoices from Harris County show payments of more than $307,000 to Denkowski from 2003 through 2008. The good news for the good doctor is that business was dwindling anyway. Most of those murderers or alleged murderers with so-called Atkins claims have already been evaluated. Only a small portion of the new capital murder defendants likely will make such claims, and Harris County capital murder trials where the death penalty is sought have reached historic lows anyway.

The evaluations became necessary following a 2002 decision by the U.S. Supreme Court that spared those with mental retardation from execution. Not surprisingly, many inmates and defendants around the country raced to the courthouse asserting retardation. A small percentage achieved success. Most of those claims required fresh evaluations from psychological experts.

Denkowski became the go-to psychologist for local prosecutors. Most of the time - about 80 percent - he found that the subject was not retarded, which helped preserve 16 death sentences from Harris County. In four cases, he agreed with defense lawyers, resulting in life sentences for their clients. But along the way, Denkowski's methods became controversial. Many other experts in the field said no science existed to justify his unusual approach, which often involved adjusting IQ scores upward because certain "adaptive behaviors" showed the subjects were really smarter than they first appeared.

And:

"This is no less a matter of scientific concern than what we found out was happening with the crime lab," Kase said, referring to faulty forensics uncovered at the Houston Police Department's crime lab nearly a decade ago. "We began to review all of those cases. Why wouldn't we do that here? And unlike most of those cases, these are cases where men's lives are at stake. This man was raising scores on psychological instruments based on factors not used in psychology."

Earlier coverage of the Denkowski sanction begins at the link.

More Denkowski Revelations

Brandi Grissom posts, "County Used Doctor After Methods Challenged," at the Texas Tribune.  Here's an extended excerpt:

Harris County paid Dr. George Denkowski, a forensic psychologist who was reprimanded earlier this month and agreed never again to perform death row evaluations in Texas, more than $300,000 to test defendants for intellectual disabilities from 2002 until 2008. And the county continued to pay Denkowksi even after a judge harshly rebuked his work, according to documents obtained by the Texas Defender Service.

Denkowski, a Fort Worth psychologist, evaluated 14 current Texas death row inmates and two who have been executed. His methods, though, came under intense scrutiny from defense lawyers and from other psychologists, who said Denkowski used flawed techniques that artificially inflated disability scores, making defendants eligible for the death penalty. The evaluations started after the U.S. Supreme Court in 2002 ruled that states could not execute mentally disabled people.

As part of a settlement, the Texas State Board of Examiners of Psychologists this month issued a reprimand against Denkowski. He did not admit wrongdoing, but he agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. An attorney for Denkowski has said he vigorously defends his practice.

The Harris County invoices, which the Texas Defender Service obtained through a public information request, include more than $20,000 the county paid to Denkowksi after a judge issued a scathing denouncement of the psychologist's methods and commuted the death sentence of inmate Daniel Plata to life in prison. From 2005 to 2007, Harris County paid Denkowski more than $20,000 to evaluate whether Plata was so mentally disabled he would be ineligible for the death penalty. Denkowski said Plata was not mentally disabled, and he was sentenced to death. But in September 2007, Harris County state district judge Mark Ellis concluded that, "Dr. Denkowski invalidated the norms of the test by committing errors in administration and scoring." 

Despite the judge's ruling, Harris County used Denkowksi at least three more times, paying him more than $20,000 collectively in those cases, including one in which he concluded the defendant would be eligible for the death penalty. "For years, the Harris County district attorney's office turned a deaf ear to leading authorities who asserted that Denkowski's methodologies were not grounded in accepted science,” said Kathryn Kase, an attorney for Plata.

A column in Connecticut's Norwich Bulletin mentions the Denkowski sanction.  "Court takes great care to protect mentally disabled," is by Richard Meehan.

Since the reinstatement of the death penalty in 1976, the issue of executing mentally disabled defendants has created controversy and debate. In 1986, the Supreme Court weighed Florida’s procedure for reviewing the competency of mentally disabled condemned defendants and prohibited the execution of mentally incompetent offenders.

The court’s five-member majority held that the Eighth Amendment’s cruel and unusual punishment clause prohibited the execution of an insane person. It did not define insanity, but ruled that a person must be aware of the impending execution and the prisoner must understand why he or she was going to be executed.

Mental health professionals urged a comprehensive psychological assessment in the process, rather than a single interview conducted only by psychiatrists. The court determined that the condemned should be permitted to present evidence from defense mental health experts as well.

The debate did not end there, however. In 1989, the court again addressed the issue that mental disability would be considered as a mitigating factor. The court rejected the claim that the Eighth Amendment prohibits the execution of the disabled. Instead, it ruled the jury should have been allowed to consider the defendant’s mental disability as a mitigating factor in weighing the punishment.

In 2002, the court revisited the issue and ruled that the application of the death penalty for the disabled is per se “cruel and unusual,” overturning its earlier decision.

Drawing on earlier language that the basic concept underlying the Eighth Amendment is the dignity of man, Justice John Paul Stevens concluded that a review of legislation in 19 states and the federal government established a consistency of the direction of change and as powerful evidence that society views mentally disabled defendants as “categorically less culpable than the average offender.”

And:

This week, the Texas State Board of Examiners of Psychologists issued a reprimand to Dr. George Denkowski, a psychologist who has examined and cleared 14 death row prisoners for execution. Denkowski has agreed not to conduct such evaluations in future cases and to pay a fine of $5,500.

Earlier coverage of the Denkowski sanction begins at the link. 

The 1986 Supreme Court ruling referenced in the column is Ford v. Wainwright, dealing with competency to be executed.  The 2002 ruling is Atkins v. Virginia; more on the two ruliings via Oyez.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Related posts are in the mental retardation index.

Lethal Injection Items

There are news reports from Alabama and Arkansas, today, as well as a Tennessee OpEd.

"Ala. inmate wants probe of state's execution drug," is the AP report by Bob Johnson.  It's via the Albany Times-Union.

Attorneys for an Alabama death row inmate scheduled to be executed in less than a month have asked the U.S. attorney general to investigate whether the state illegally obtained its supply of a key execution drug.

Attorneys for Jason Oric Williams said Alabama obtained its sodium thiopental from Tennessee, whose supply has been seized by the Drug Enforcement Administration because of concerns it was obtained illegally from overseas. Supplies in Georgia and Kentucky have also been rounded up by the DEA over similar concerns.

Alabama prisons spokesman Brian Corbett declined to comment about the letter to U.S. Attorney General Eric Holder or claims the state obtained sodium thiopental from Tennessee.

Tennessee Department of Corrections spokeswoman Dorinda Carter said that state provided Alabama with a supply of sodium thiopental on March 15 but the transaction was not a sale. "There was no exchange of funds," Carter said in an e-mail to The Associated Press.

Attorneys Bryan Stevenson and Angela Setzer of the Montgomery-based Equal Justice Initiative asked Holder to prevent the state from using the drug to kill Williams, who is scheduled to die May 19 for killing four people in Mobile County in 1992 during a shooting spree.

"The unlawful acquisition of such unregulated narcotics increases the likelihood that they are adulterated, counterfeit or otherwise ineffective," the attorneys said in the letter. "As occurred in Tennessee, we ask that all necessary steps be taken to prevent the state from utilizing or possessing what appear to be unlawfully obtained drugs."

The swap of the execution drug between Tennessee and Alabama might be the basis for a last minute appeal to stop Williams' execution, Stevenson said.

"Gov. Mike Beebe sets execution dates for 2 convicted killers with pending lawsuits in Arkansas," is the AP report, via the Republic.

Gov. Mike Beebe set the execution dates for two convicted killers on Monday, the first time he has taken the step in nearly a year after legal challenges to the state's lethal injection procedure.

Beebe's office announced that Frank Williams Jr. will be executed on June 22 and that Marcel Williams will be executed July 12. No Arkansas inmate has been executed since 2005.

Both inmates have pending civil lawsuits. Frank Williams is involved with two suits, one challenging a drug used in lethal injections and another challenging the state's policies on visitors and other rules for death row inmates, according to the Arkansas Department of Correction. Marcel Williams is involved in both those cases and another suit involving lethal injections, according to the correction department.

Beebe has received four letters in recent months from Attorney General Dustin McDaniel certifying that inmates' appeals had run their course and asking the governor to set execution dates. In the letters for both inmates, McDaniel writes that he expects them to seek a stay of execution.

Beebe has scheduled executions for five inmates since taking office, but none have occurred because of various legal challenges.

A message left at the federal public defender's office was not immediately returned late Monday afternoon.

The last execution was set for nearly a year ago, on May 24, 2010, according to the state's correction department. That execution, for death row inmate Jack Harold Jones Jr., was not carried out. Jones was sentenced to die for the 1995 murder of a bookkeeper in Bald Knob.

"I disagree with the decision," said defense attorney Jeff Rosenzweig, who represents Jones and several other death row inmates. "The government has the right to set (the date), but the court has the right to stay it."

And:

Arkansas has executed 27 death row inmates since the U.S. Supreme Court allowed states to resume executions in 1976. The last occurred in 2005, when officials executed condemned killer Eric Nance.

The Arkansas News Bureau reports, "Beebe sets execution dates for two,"

Despite three death penalty cases currently stayed in federal court and awaiting court rulings, Gov. Mike Beebe today set execution dates for two condemned killers.

Beebe spokesman Matt DeCample said the governor has received four letters in recent months from the state attorney general certifying that the appeals of four death-row inmates have run their course.

“At this point, Gov. Beebe has decided that he is obligated to begin setting these execution dates, pending additional court decisions,” DeCample said.

Beebe set a June 22 execution for Frank Williams Jr., and set July 12 for Marcel W. Williams to be put to death.

And:

Death row inmates Don William Davis, Jack Harold Jones Jr. and Terrick Nooner are currently challenging the state’s new execution procedures and questioning the quality of the state’s supply of a key execution drug. They each had their execution date set by Beebe, but the dates were later stayed by a federal judge.

Today's Tennessean carries the OpEd, "Drug shortage delays executions." It's written by State Rep. Barrett Rich, the majority whip in the Tennessee House of Representatives.

I feel that chemistry has already provided options for a new drug to replace the old one, thus allowing the lethal injection to be performed constitutionally. Other states use different chemicals to arrive at the same effect. This is not for the legislature to determine, but for the state Department of Correction to decide.

This is an imminent issue, as Tennessee does have an execution slated in September. This needs to be ameliorated as soon as possible, as Tennessee does have a violent crime problem. And while capital punishment is not the only deterrent at a district attorney general’s disposal, it is, I feel, a vital one.

A chemical solution should be found to administer justice humanely without reverting to a secondary method. This can be done by the Correction Department, without any legislative statute. However, if Tennessee finds itself put in a situation where we cannot use lethal injection, other alternatives should be explored.

We must use the technology we have to ensure that justice is carried out in a humane way.

Earlier lethal injection coverage from Alabama, Arkansas, and Tennessee begins at the links.  Related posts are in the lethal injection index.

Missing in Action

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  As usual, it's a must-read; here are excerpts:

By this time a year ago, Justice John Paul Stevens had announced his intention to retire from the Supreme Court. A year earlier, Justice David H. Souter’s retirement announcement was just days away. Those galvanizing mid-spring developments dominated thoughts about the future of the federal judiciary for two successive years.

This year, by contrast, all seems blissfully quiet on the Supreme Court vacancy front. (Of course, that observation comes with the caveat that I possess no inside information, and never did: on the afternoon of March 18, 1993, I assured my editors that no Supreme Court departures were imminent. Justice Byron R. White announced his retirement at nine o’clock the next morning.) It appears that for the first time in the life of the Obama administration, the White House will not face the all-consuming task of choosing a Supreme Court nominee and navigating the Senate confirmation process.

That means, it seems to me, that there are no excuses either for the administration or for the Democratic leadership in the Senate not to get down to the business of filling the 92 vacancies that now exist on the federal district courts and courts of appeals (up from 54 vacancies when President Obama took office, or from six percent to more than 10 percent of the 857 authorized judgeships).

In his state of the judiciary message on New Year’s Day, Chief Justice John G. Roberts Jr. gave a welcome shove to both parties and both branches when he said there was “an urgent need for the political branches to find a long-term solution” to filling the vacancies. Since then, though, not much has happened but a lot of finger pointing, a surprising amount of it between Senate Democrats and the White House. Each accuses the other of not making judicial nominations a sufficient priority. There is some kind of seriously baffling and dysfunctional shadow play going on here, which of course helps no one except the Republicans.

It is the Republicans who have their priorities in order, and their strategy is perfectly obvious: to deprive President Obama and any future Democratic president of a bench of highly qualified judges who can be tapped when future Supreme Court vacancies occur. In other words, it’s not about anything that the Republicans say or imply that it’s about: not “judicial activism,” nor about which nominee disrespected which Republican Supreme Court nominee at a confirmation hearing, nor about a nominee’s insufficient commitment to permitting every man, woman and child in America to carry a gun.

It’s about the bench.

And:

As I said earlier, the Republican strategy is perfectly clear. It is the Democrats’ behavior, both in the Senate and in the White House, that has progressives seething right now.

The administration is simply not nominating judges at an acceptable rate or making a public push for those it has nominated. For the current 17 vacancies on the federal appeals courts, there are only eight nominees. For 75 district court vacancies, there are 34 nominees. It’s possible to come up with explanations for some of these missing nominees — recalcitrance on the part of home-state senators, tardiness by the American Bar Association committee that vets potential nominees — but these numbers are huge. As of this month, President Obama is 33 judicial nominations behind where President George W. Bush was at the comparable point in his presidency, and 41 nominations behind President Bill Clinton.

That judges are among a president’s most important legacies is an observation so obvious as to be platitudinous. So here’s another observation: you can’t confirm someone who hasn’t been nominated.

Related posts are in the judiciary and politics indexes.  More Linda Greenhouse, at the link.

Marie Deans

"A Local Life: Marie Deans, 70, defender of the condemned," is the title of Colman McCarthy's remembrance in yesterday's Washington Post.

To many of the condemned men waiting to be electrocuted or drugged to death in a Virginia prison on charges of capital murder, Marie Deans was known as the “angel of death row.” She preferred the phrase “courageous fool.”

Her advocacy, which spanned more than three decades and was based on her steeled opposition to capital punishment, took many paths.

She pestered Washington and Virginia law firms to provide pro bono defense attorneys for inmates too poor to pay for post-conviction habeas appeals. She made hundreds of visits to Virginia’s grimy death row and more than 30 times accepted prisoners’ invitations to be in the death house for their final hours.

She was on hand, too, as a celebrator of justice when years of work helped free a falsely convicted prisoner — Earl Washington Jr. — from Virginia’s death row.

Washington, poor, black, illiterate and mentally disabled, was convicted of raping and murdering a Culpeper mother in 1982. He could not afford an appeals lawyer, and Virginia would not supply one.

It was Mrs. Deans who, after investigating on her own the arrest and trial records, found repeated errors suggesting a wrongful conviction. She scrambled to find a team of lawyers to save Washington. The defense attorneys maintained that Washington’s initial confession was bullied out of him because of his limited intelligence.

Irrefutable DNA evidence exonerated him. He had come within nine days of execution, marking the first time in memory that newly uncovered evidence led to the freeing of a death-row prisoner in the state. He was taken off death row in 1994, released from prison in 2001 and received an absolute pardon in 2007.

“Marie Deans brought hope and humanity to death-row inmates living under barbaric conditions,” said Donald P. Salzman, a criminal defense lawyer and litigator who now is pro bono counsel at the law firm Skadden, Arps, Slate, Meagher and Flom.

“Her indefatigable insistence on justice for Earl Washington Jr. led to his release from death row and eventual exoneration,” Salzman said.

At the time of her death in a Charlottesville hospice on April 15, after months of fighting lung cancer, Marie Deans, 70, was a major figure in the high stakes and often dispiriting world of death penalty abolition. Once immersed, she found the rituals of capital punishment to be void of mercy.

Up close, she saw it grounded in arbitrariness, racism and legal absurdities. “The death penalty,” she told interviewers from Amnesty International in 1989, “is something that is destroying the soul of our people. If people don’t know that, it just tells me how quickly it is destroying us.”

And:

In 1972 in Charleston, her mother-in-law, Penny Deans, was murdered by an escaped convict. At the scene of the crime, Mrs. Deans once recalled, she was told by a police officer not to worry: “We’ll find the bastard and fry him.”

Capture him, she said, but don’t kill him for me.

“He had a family, too,” she told The Washington Post in 1989. “If he was executed, it would be another murder. It would be worse in a way, because he would be put on death row and the family would have been told every day for 10 years — or eight years or six years or however long it takes — that he was going to be killed. I think that’s worse.”

In 1976, she formed Murder Victims’ Families Against the Death Penalty (now called Murder Victims’ Families for Reconciliation) and a few years later moved from Charleston to Richmond, in part because she knew the workload would be heavier.

"Celebrating the life of Marie Deans," is Todd Peppers' remembrance for the Richmond Times-Dispatch.  He's a professor at Roanoke College.

On Friday, April 15, one of the nation's leading advocates for the abolition of the death penalty passed away quietly in a Charlottesville hospice. Her name was Marie McFadden Deans, and for decades she fought to bring fairness, justice and decency to what Supreme Court Justice Harry Blackmun once decried as "the machinery of death," namely, our country's bewildering and stubborn commitment to the barbaric practice of killing its citizens to show that killing is wrong. Marie was a tireless worker who never sought the limelight, but in her death we should pause and consider her contributions to fight against the death penalty regime.

Marie's devotion to abolishing the death penalty was sparked by the brutal murder of her beloved mother-in-law by an escaped convict. In the face of such a horrific loss, Marie responded by founding Murder Victims' Families for Reconciliation, an organization that sought to give a voice to families who believed that the death penalty was not the answer to the terrible loss of their loved ones. At the same time, Marie threw herself into work with Amnesty International and toured prisons across the country — documenting abuses and providing needed data to litigate the cruel and unusual conditions imposed on the forgotten inhabitants of death row.

In 1983, Marie founded the Virginia Coalition on Jails and Prisons — an organization dedicated to fighting for basic legal rights for the men on death row.

And:

Marie's efforts not only focused on the men already on death row, but those men on trial for capital murder. Marie was incensed by a legal system which shackled indigent defendants with poorly trained defense attorneys and inadequate resources to hire expert witnesses. Marie became a mitigation expert, collecting relevant information on the backgrounds of capital defendants and weaving that information into a compelling narrative that would be presented to a jury weighing whether to sentence the defendants to life or death. Marie quickly established herself as a leading mitigation expert, and, largely due to her efforts, only two of the 200 men that Marie helped defend were ultimately sentenced to death.

48 Hours on Anthony Graves' Exoneration

"Students help free wrongfully convicted man," is the title of the CBS News program, "48 Hours Mystery" segemtn on Anthony Graves.  Richard Schlesinger reports; the segment is produced by Lourdes Aguiar, Jenna Jackson and Jennifer Simpson Ashmawy.  In addition to the video, you can also read the transcript of the report.

Here's the beginning:

Before the early morning hours of Aug. 18, 1992, the police in Somerville, Texas found six bodies in the burned rubble of what used to be the Davis home.

"This was such a horrific event in that town and continues to be an event that really haunts the people of Somerville..." Texas Monthly reporter Pam Colloff told "48 Hours Mystery." "This was a family that almost everyone in town knew, liked, respected."

The victims: A grandmother, her daughter, and four grandchildren who were staying with them.

Colloff is still moved by the fact that the family never had a chance.

"There was Bobbie Davis, the grandmother to the four children who was bludgeoned and then stabbed to death," Colloff explained. "There was 16-year-old Nicole, her daughter, who was a high school student and athlete, who was bludgeoned and shot. And then there were the four grandchildren. They were 9-year-old Denitra, 6-year-old Brittany, 5-year-old Lea'Erin and 4-year-old Jason."

Glenda Rutledge is Lea'Erin and Brittany's mother.

"And my daughters, "Rutledge sighed, "were exotically beautiful. Beautiful...They were my legacy..." she continued in tears. "I was so looking forward to the chance to get it right... You know, to raise strong, sure, confident, successful women. You know, I wanted to do that so bad."

Rutledge's ex-husband, Keith Davis, lost almost his entire family that night.

"I mean these were little babies, and - and my mother, who... you know, who we adored, who was the center of our life," he said.

He was convinced it was a random crime.

"I just couldn't imagine someone from that area harming anyone in my family, 'cause we had never...we didn't have any enemies, we hadn't been in any trouble," said Davis.

Roy Rueter lived and worked not from the murders. Five days after the crimes, he remembers hearing there was a break in the case.

"I could hear the radio and the news would always come up..." he recalled. "And - it was early in the morning and they came up and they said, you know, arrest had been made...and they said uh - Anthony Charles Graves, age 27."

Anthony Graves was one of Rueter's best friends. Graves had worked for him for a while at his machine shop and the two became so close that Graves had even been in Rueter's wedding party.

"And it just it just freaked me out," he told "48 Hours Mystery" correspondent Richard Schlesinger. "But my immediate thing was, yeah, right. No way. And what - you know, what - what could possibly be going on here, you know?"

"You didn't believe it?" Schlesinger asked Rueter.

"Well of course not. Absolutely not."

Rueter knew Anthony Graves as a gentle man, a father of three. He was now hearing his friend was a murderer - of women and children.

"In my heart, my convictions were that's impossible," he said. "Anthony would never do that. Anthony would never - hurt or raise a hand to a woman. And especially not a child, especially the way he loved his children."

And when Graves was arrested, he seemed equally stunned.

Earlier coverage begins with a preview of the 48 Hours report.  All coverage is in the Anthony Graves index.

Lethal Injection Roundup - Georgia & Arizona

"Georgia eyes new drug in execution process," is the title of Bill Rankin's Atlanta Journal-Constitution report.

Stripped of its supply of a key lethal-injection drug, Georgia may soon switch to a new drug so it can resume executions of condemned inmates.

The new drug, the barbituate pentobarbital, has already been used for executions in Ohio and Oklahoma.

Rob Jones, the Department of Corrections’ general counsel, said Georgia prison officials traveled to those states last month to review their methods. Georgia is one of several states looking at pentobarbital as a replacement to sodium thiopental, which has been used for years for lethal injections but is no longer manufactured in the U.S.

“Nothing has been finalized at this point, but we are fairly close to making a decision,” Jones said.

In March, Drug Enforcement Administration officials confiscated Georgia’s supply of sodium thiopental after lawyers for a death row inmate questioned whether the drug was counterfeit or had been adulterated.

Attorneys representing Cobb County killer Andrew Grant DeYoung, whose final appeals are pending before the U.S. Supreme Court, had asked the Justice Department to investigate Georgia’s importation last year of sodium thiopental. They accused the Department of Corrections of violating federal drug laws when it purchased its supply from a pharmaceutical company that operated in the back of a storefront driving school in London.

Because of the seizure, the state has not been able to set an execution date in one of its highest-profile cases: that of Troy Anthony Davis, whose final appeals were rejected by the high court last month. Davis was sentenced to death after his conviction for killing an off-duty Savannah police officer in 1989. Three other Georgia inmates, including DeYoung, also could have their executions postponed.

Amid the ongoing DEA review, corrections officials have intensified their efforts to replace sodium thiopental with pentobarbital.

In March, Ohio became the first state in the country to use pentobarbital as the sole drug used in the lethal-injection process when it executed Johnnie Baston, convicted of killing a store owner during a 1994 robbery.

There were no complications with the execution, Ohio prison spokesman Carlo LoParo said.

“It’s humane,” he said of pentobarbital. “Our research and the research of others indicates it is gram for gram just as effective as sodium thiopental.”

Oklahoma uses pentobarbital as one of three drugs in its execution process. Georgia’s lethal-injection procedure has used a three-drug cocktail, with sodium thiopental used as the first drug.

Jones said Corrections has yet to decide whether pentobarbital, if the state elects to use it, will be the sole drug or one of three. “We want to carry out this procedure in the most humane way possible and to ensure it will be a pain-free procedure,” he said.

Texas also plans to use the drug and Louisiana and Mississippi are considering it, according to the Death Penalty Information Center in Washington.

In the Arizona Republic, state Department of Corrections Director Charles L. Ryan writes the OpEd, "Execution drug acquired legally."

The execution of a convicted murderer is the ultimate penalty imposed by the courts. The duty of the Arizona Department of Corrections is to carry out this sentence lawfully, professionally and humanely.

Recently, the media have paid increased attention to executions taking place throughout the country. Unfortunately, some of the information in these news stories is inaccurate.

The current three-drug chemical protocol used in Arizona has been upheld through the U.S. Supreme Court. Since 1993, Arizona has carried out 23 executions using lethal injection. Our experience has proven this process is both humane and effective.

Due to the shortage of sodium thiopental, the Department of Corrections was required to locate a supplier outside the United States. We lawfully acquired the chemical by working with U.S. Customs, the Food and Drug Administration and the Drug Enforcement Administration.

Throughout the process, the Department of Corrections documented explicitly that our purpose was to use these chemicals to perform executions by lethal injection.

The Arizona Department of Corrections is considering the use of alternative chemicals and protocols to ensure there is no disruption in carrying out the law.

We will continue with the use of a lawful chemical protocol. Any changes will be determined after a full and comprehensive review with the assistance of our attorney general.

Earlier lethal injection drug coverage begins with this New York Times article; more from Arizona and Georgia is at the links.

More Commentary on the Denkowski Sanction

Genevieve Hearon writes the OpEd, "Texas must not execute the mentally retarded," for the Austin American-Statesman.  It appeared in the Saturday edition.  Hearon is the founder of Capacity for Justice, an organization that works to address court evaluation requirements in judicial determinations for defendants with intellectual disabilities, mental illnesses and co-occurring issues in the criminal justice system.

As the mother of four beautiful children, one of whom had "mental retardation" (the current preferred term is "intellectual disabilities") and another who was diagnosed with schizophrenia at the age of 15, I know how difficult it can be for some people with intellectual disabilities to take care of themselves and navigate the challenges of daily life. The criminal law treats people with "mental retardation" differently, and it should.

Although Atkins is settled in law, Texas allowed a testifying expert, George Denkowski, to supplant Atkins' methodology with his own added requirement of upping IQ scores based on the defendant's ethnic environment. In my view, this addition invited inaccuracies, errors in subjectivity, discrimination and denied equal treatment under the law.

Texas is now in grave danger of inadvertently executing men with mental retardation(ID). Although Denkowski was recently no longer permitted to testify as to Atkins evaluations, he provided testimony in at least 14 cases of men currently on Texas death row, including two who are in line to receive execution dates.

Texas is now in grave danger of inadvertently executing individuals with intellectual disabilities.

There are a few areas in life and law where mistakes cannot be tolerated. One of those areas is the death penalty.

Since there are now questions as to whether some men have mental retardation, my view is that the courts need to hear their claims anew. At least provide for a demonstration of their records, IQ scores and the testimony of a disinterested expert who addresses the Atkins positions. Death by lethal injection because of flawed evaluation would be a mockery of "justice for all". If the Legislature needs to pass legislation to clear the way for these men's claims, it has an urgent moral duty to act.

And:

Based on my personal experience and decades of service and policy participation in the behavioral health care field advocating on behalf of people with intellectual disabilities and mental health issues, I am hard-pressed to imagine a more disturbing and regressive action than executing a person who is mentally retarded under Atkins. In the eyes of the law, to do so would be unconstitutional. In our hearts, it would be inhumane and immoral.

The courts must take a second look at the cases where Denkowski conducted the evaluations for mental retardation. This is the only way to avoid unconscionable, irreversible mistakes.

"Courts Resist Revisiting 'Junk Science' Convictions," is the Texas News Service report written by Peter Malof.

After a forensic psychologist was banned this month from making retardation evaluations in Texas courts, defense attorneys hoped to reopen past convictions that used his now-discredited testimony. But with courts extremely wary of revisiting any closed case, it may take legislative action to force them to bend to scientific consensus.

Current law allows for re-reviewing cases when DNA evidence might change the outcome. Kathryn Kase, a death-penalty lawyer who directs the Trial Project at the Texas Defender Service, supports legislation that would apply to additional types of evidence.

"We need to extend the law, so that changes in science, or the practice of shoddy science, allows a person to go back and seek re-testing and re-review."

A bill pending in the state House goes half-way, says Kase, who wants it amended to not only incorporate current science, but also the problem of "junk science."

The banned psychologist, George Denkowski, provided testimony that helped convict at least 14 prisoners on death row, who he claimed had normal intelligence. Kase is convinced that at least some of them are, in fact, mentally retarded. Executing the mentally retarded has been forbidden since a U.S. Supreme Court ruling in 2002.

Kase says, in matters of life and death, there's no room for casual, sloppy, or fraudulent science.

Earlier coverage of the Denkowski sanction begins at the link

Nebraska Execution Date Set Amid LI Drug Questions

Today's Lincoln Journal Star reports, "Death-row lawyer: State bought lethal-injection drug from rogue broker."  It's written by Kevin O'Hanlon.

The Nebraska Supreme Court late Thursday rejected a complex appeal by death-row inmate Carey Dean Moore and ordered him to be executed on June 14.

In doing so, the court rejected arguments by Moore's lawyers challenging the legality of Nebraska's purchase from an Indian company of one of three drugs used in the state's lethal-injection protocol and questioning whether the state even bought the right drug.

Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, had asked the court to order a lower court to hear the issue of the state's purchase.

"The subject matter of the proceeding pending herein is not one which the Nebraska Supreme Court may ‘remand' to a district court," Chief Justice Michael Heavican wrote.

Soucie declined immediate comment.

Meanwhile, court documents filed earlier Thursday said the state might have bought the lethal injection drug from a rogue pharmacy broker who just wanted to make quick money.

The state paid $2,056 to Kayem Pharmaceutical Pvt. Ltd. for 500 grams of sodium thiopental. The drug has been in short supply since last year and the only U.S. manufacturer, Hospira Inc., is ending production because of death-penalty opposition overseas.

But in an email this week to Soucie, the CEO of Kayem said the state bought the drug from a pharmacy broker who deceived the company -- even going as far as registering it to do business in Nevada without its knowledge.

"Execution date set for Moore," written by Martha Stoddard and Paul Hammel for the Omaha World-Herald.

The Nebraska Supreme Court has set a June 14 execution date for condemned killer Carey Dean Moore, although it left several options open for state and federal appeals.

The court issued a death warrant late Thursday and denied several motions challenging the constitutionality of the state’s lethal injection law.

Jerry Soucie, Moore’s attorney, said, “The question is in what order do you pursue your available remedies?”

Whatever legal avenues Moore pursues could force delays in his execution, which already has been pushed back four years.

Moore, 53, was sentenced to die in 1980 for the murders of two Omaha cabdrivers, Reuel Van Ness Jr. and Maynard Helgeland, both 47.

His case is the oldest among the 12 men on death row.

If the execution were carried out, it would be the first in Nebraska since Robert Williams was put to death in the electric chair in 1997.

It also would be Nebraska’s first execution by lethal injection.

State lawmakers changed the method of execution after the state high court ruled that electrocution was unconstitutionally cruel and unusual punishment.

No courts have reviewed the lethal injection law since it was passed in 2009.

The court set an execution date for Moore in 2007, then issued a stay that was in effect until Thursday.

At the time of the stay, the court said it needed to decide on the constitutionality of the electric chair, which was then Nebraska’s sole method of execution.

Nebraska Attorney General Jon Bruning asked the Supreme Court in January to set an execution date for Moore.

He made the request three days after state corrections officials said they had obtained a supply of sodium thiopental and were ready to carry out a death sentence.

The Nebraska State Paper carries commentary, "Execution Date Set For Double Murderer - So, what?"

The state Supreme Court has set a June 14 execution date for convicted double-murderer Carey Dean Moore.

Forget it.

Moore, 53, who confessed to planning and carrying out the robbery-murders of two Omaha cab drivers in 1979, has a variety of appeal opportunities remaining.

And there is also the issue of what drugs the state would use to kill him, if and when a real execution date arrives.

Earlier this year Nebraska obtained a supply of a hard-to-find drug that is part of the three-drug cocktail required for putting an inmate to death by lethal injection. However, the expiration date on the state’s purchase is August, 2012. It’s extremely unlikely Moore’s appeals will have run their course in so short a time.

If the state decided to switch to a different drug, it would require rewriting rules and regulations for executions.

In setting the June 14 execution date Thursday the high court also rejected Moore’s argument that the lethal injection law is unconstitutional.

Moore would be the first person executed on the gurney since Nebraska switched its method of execution from the electric chair to lethal injection in 2009.

Earlier lethal injection drug news from Nebraska and coverage of Kayem Pharmaceutical, at the links.

States Moving Quickly to Switch Execution Drug

That's the title of an AP report written by Andrew Welsh-Huggins, via Google News.  It's also available from the Fort Worth Star-Telegram and other outlets.

Nearly two-thirds of the 16 states with active death chambers are switching to an alternative sedative for execution — even as the drug's manufacturer argues against its use in capital punishment and some European countries push export bans for such drugs.

Ten states have now switched to pentobarbital or are considering a switch as part of their three-drug methods, according to a survey of all death penalty states by The Associated Press. Among those joining the states that previously switched are Alabama, Louisiana and Florida.

South Carolina also is considering using the drug as it prepares for an execution next month.

At issue is a shortage of sodium thiopental, a sedative that states used for more than three decades until its only U.S. manufacturer stopped making it in 2009 and then dropped plans to resume production earlier this year.

The shortage forced several states to scramble to find new supplies and executions were temporarily delayed in Arizona, California, Georgia and Oklahoma. States swapped supplies of sodium thiopental or looked overseas, to England, India and even Pakistan.

Both sodium thiopental and pentobarbital are fast-acting barbiturates that in massive intravenous doses will quickly stop a person's breathing and cause death in 10 to 15 minutes.

One difference: pentobarbital is considerably more expensive. Ohio spent $218 for 5 grams of sodium thiopental in February, but spent $2,200 for 5 grams of pentobarbital for a March execution. Prisons spokesman Carlo LoParo said the state had no alternative.

As states scrambled for fresh supplies, several turned to England and obtained doses of sodium thiopental not approved for medical use in this country by the FDA. But that source dried up after the British government banned the drug's export for use in executions and the U.S. Drug Enforcement Administration began seizing supplies of the drug from Georgia and other states over questions of whether the states broke the law to get it.

Death row inmates in Arizona, California and Tennessee sued over the imported drugs, alleging the FDA knowingly allowed the import of a drug that hadn't been approved by the agency.

And:

The 10 states that have either switched to pentobarbital or are considering a switch are among 16 states that held executions in the past three years or have executions scheduled this year.

Five of those states say they're exploring their options or researching the issue, phrases other states used before announcing the switch. A sixth, Washington, has no plans to change.

Some states without recent executions or any scheduled in the near future are also switching or considering a switch to pentobarbital in case the need arises, including Delaware, Oregon and Idaho.

"Corrections departments across the country are struggling to find a reliable supply of that drug and we want to give ourselves some flexibility and some options as we go forward," said Idaho prisons spokesman Jeff Ray.

Only two states, Ohio and Oklahoma, have used pentobarbital in executions. Oklahoma uses it along with drugs that paralyze inmates, then stops their hearts. Ohio uses one single dose of pentobarbital.

Pentobarbital, available for use since 1930, is used by doctors as a sedative in some surgeries, as a hypnotic for short-term treatment of insomnia and to control certain types of seizures, such as those associated with bouts of cholera, meningitis and an emergency state of epilepsy.

The drug has also been used in legally assisted suicides in Oregon and Washington. Nembutal, a chemically related version of pentobarbital marketed to veterinarians, is used in combination with other drugs to put animals to sleep.

Anti-death penalty groups want pentobarbital's Danish manufacturer, Lundbeck Inc., to write clauses into contracts with pharmaceutical distributors to ban its use in executions.

Lundbeck, which strongly opposes the use of its drug for capital punishment, says such clauses would be impractical because of the way drugs are distributed.

Earlier coverage begins with international trends; related posts are in the lethal injection index.

A San Antonio Case Ends

"Former death row inmate agrees to life without parole," is the San Antonio Express-News report written by Craig Kapitan.

A former youth pastor who spent three years on death row for the murder of his pregnant teen girlfriend was given a new sentence Thursday: life in prison without parole.

In exchange for prosecutors no longer seeking the death penalty, Adrian Estrada, 27, agreed to forgo all rights to appeal the case.

A jury sentenced Estrada to death in 2007 for the Dec. 12, 2005, stabbing and strangulation of Stephanie Sanchez, 17. He had been a youth pastor at El Sendero Assembly of God when he impregnated the teen several times, according to testimony from his trial.

But during the sentencing phase, an expert for the state accidentally gave misleading information to jurors on the danger Estrada could pose to society in the future, the Texas Court of Criminal Appeals ruled last year. The appellate court ordered the punishment phase retried.

Defense lawyer Brian Stull, a North Carolina-based staff attorney for the American Civil Liberties Union's Capital Punishment Project, appeared to struggle with emotion Thursday as he read aloud a letter his client had written to the victim's family.

“I understand my actions have caused many people tremendous amounts of pain,” Estrada wrote. “I regret many things I did, particularly the way I treated (Sanchez).”

Estrada was too nervous to read the letter himself, Stull said.

And:

Although he's the first, Estrada might not be the only death row inmate who gets a second chance at punishment because of the erroneous testimony of prison expert A.P. Merillat, said Stull of the ACLU.

Merillat told jurors in the Estrada case that after 10 years in prison, Estrada could potentially be given a lower, less restrictive inmate classification that might result in him being put in the prison's general population. To give the death penalty, jurors have to decide a defendant would be a future danger to society, including fellow prison inmates.

Jurors mentioned the testimony in a note to the judge while deliberating.

“He has made the same error in other cases,” Stull said of Merillat. “We think it could have wide-ranging ramifications. Each case has to play itself out in court.”

The ACLU Capital Punishment Project, which represented Estrada, issued a news release, "ACLU Client Agrees To Life In Prison After Death Sentence Thrown Out Because Of False Testimony.  Death Penalty System In Texas And Across Country Riddled With Flaws And Errors."

An American Civil Liberties Union client whose death sentence was thrown out last year after the highest criminal court in Texas ruled it was based on the false testimony of a state expert agreed today to a new sentence of life in prison.

Adrian Estrada’s death sentence was thrown out last June after the Texas Court of Criminal Appeals found that A.P. Merillat, who investigates prison crimes for Texas, wrongly testified that, if allowed to live, Estrada could receive a prisoner classification that would allow him to leave the prison grounds. This testimony led the jury to find that Estrada posed a future threat to society. Merillat, who has testified in numerous other death penalty cases in Texas, told prosecutors after Estrada’s sentence was thrown out, “I don’t know if my presence in your courthouses would serve you or your cases well.”

“Death sentences such as Mr. Estrada’s that are based on false or misleading testimony are just one of the many fatal flaws of the U.S. death penalty system,” said Brian Stull, an attorney with the ACLU Capital Punishment Project. “The nation’s death penalty system is riddled with error and death sentences are handed out in unfair and unjust manners. This case provides clear evidence of the urgent need for Texas and all other death penalty states to abolish capital punishment and replace it with the sentence of permanent imprisonment.”

Jurors in Estrada’s 2007 sentencing trial were incorrectly told by Merillat that if Estrada were given a sentence of life without parole instead of the death penalty, he could be eligible for a classification level that would allow him to leave the prison grounds after 10 years of imprisonment. Two juror notes strongly suggested that Merillat’s false testimony led to their decision to sentence Estrada to death.

In a 66-page ruling issued in June, Jude Barbara Hervey of the Texas Court of Criminal Appeals wrote, “This information, now properly before this court, demonstrates there is a fair probability that appellant’s death sentence was based upon incorrect testimony as evidenced by the jury’s notes. We believe that the Supreme Court would find this to be constitutionally intolerable.”

Estrada agreed to his new sentence before state District Court Judge Sid Harle in Bexar County, TX.

Related posts are in the expert witnesses, mitigation, and sentencing indexes.

Democracy Now on the Denkowski Sanction

"'Dr. Death' Agrees to Stop Evaluating Mentally Disabled Texas Death Row Prisoners," is the Democracy Now segment, today.  You can watch the video at the link.

Last Friday, Texas reprimanded a psychologist who used what critics say were unscientific methods to examine at least 25 Texas death row prisoners for intellectual disabilities, two of whom were later executed. Dr. George Denkowski was the go-to psychologist for prosecutors who wanted to prove defendants were not mentally handicapped—and therefore eligible for the death penalty. Democracy Now! first covered Dr. Denkowksi in January 2010 in a video report by Renée Feltz that accompanied her story for The Texas Observer magazine. For an update, we’re joined by Texas Defender Service attorney, Kathryn Kase, and by Dr. Jerome Brown, the psychologist filed the complaint that ultimately resulted in Denkowksi’s agreement to stop evaluating people in criminal cases.

The participants include:

Kathryn Kase, attorney with the Texas Defender Service. Dr. George Denkowski said her client, Daniel Plata, was eligible for execution but a judge later said the evaluation was full of "fatal errors" and commuted Plata’s death sentence to life.

Dr. Jerome Brown, a clinical psychologist who worked as an expert for the defense on five death penalty cases in which Denkowski worked for the prosecution. He filed the complaint that ultimately led Denkowksi to stop evaluating people in criminal cases.

Renee Feltz, new Democracy Now! producer. Her exposé of Dr. Denkowski for The Texas Observer magazine, supported by The Investigative Fund at the Nation Institute, was a finalist for a 2010 Investigative Reporters and Editors Award.

Earlier coverage of the Denkowski sanction begins at the link.  Renee Feltz' earlier reporting, noted above,  is at the link.

Capital Punishment Is Sin

That's the title of commentary by Roger Olson, a professor of theology at George W. Truett Theological Seminary of Baylor University.  It's at the Associated Baptist Press.

A controversy is raging over capital punishment in Texas -- a state that executes upwards of 30 to 35 people (almost all men and disproportionately African-American and poor) annually. Most Texas Christians favor capital punishment even though it has been shown repeatedly not to be a deterrent to crime. Life in prison serves just as well for that.

And:

There are several theological and ethical problems with capital punishment.

First, it ends a person’s opportunity to exonerate himself or herself. 

Second, it ends a person’s opportunity to accept Christ and live a God-honoring life in prison ministering to other inmates and guards. 

Third, it usurps God’s place and assumes a God-like right and power to take the life of a person created in God’s image and likeness.

Fourth, it has no social benefit. It only serves a blood thirst for vengeance.

Fifth, no modern, Western country still has capital punishment.

Sixth, capital punishment is barbaric and cruel -- if not to the person being executed (and who can know for sure?), to his or her family.

Seventh, innocent people are executed. A few years ago Ethel Rosenberg’s brother came forward and admitted publicly that he knew she was not complicit in the plot to steal American nuclear secrets and deliver them to the Soviet Union. He fingered her to help himself. She was electrocuted in 1953 leaving behind two small, traumatized boys.

For these and other reasons, capital punishment needs to be abolished and Christians ought to be in the forefront of that effort.

Most Christians who support capital punishment rely entirely on Old Testament material which was transcended by Jesus.

Olson also addresses the Todd Willingham case in his commentary.  Related posts are in the religion index.

Lethal Injection Roundup

"Indiana executions put on hold due to lack of drug," is the title of Rich Molina report at WNDU-TV.

The execution of a convicted killer from Mishawaka has been put on hold along with all executions in the state of Indiana after the Department of Corrections ran out of a drug used during lethal injections, according to our reporting partners at the News Dispatch.

Prisons typically use the drug sodium thiopental as an anesthetic during lethal injections.

But a DOC spokesman says although 14 people sit on death row, the state's supply has run out.

Indiana is not alone.

According to a study, at least 16 of the 34 states with the death penalty have run out of the anesthetic.

And:

The state did not say whether it is considering other alternatives, but all executions, including that of Wayne Kubsch, who was convicted of killing his family in 1998, have been put on hold for now.

The Arizona Capitol Times carries the AP report, "Arizona death-row inmate execution set for May 25."

The high court on Tuesday scheduled 56-year-old Donald Edward Beaty’s execution for May 25 at the state prison in Florence.

Beaty’s attorneys had argued that the court shouldn’t order his execution because of lingering questions about a controversial lethal injection drug.

They argued that the sedative sodium thiopental was illegally obtained and unregulated by the U.S. Food and Drug Administration.

The state Department of Corrections hasn’t decided whether Beaty will be executed with a three-drug method that includes sodium thiopental or a different protocol.

Related posts are in the lethal injection index.

Anthony Graves Exoneration Profiled by CBS 48 Hours

The CBS News program "48 Hours," will feature Anthony Graves' exoneration this Saturday, April 23.  The program normally airs at10:00 pm, EDT/9:00 pm, CDT.  check your local TV listings for the time in your market.

You can preview the episode, "Grave Injustice," at the link.

Convicted of murder and sentenced to death ... 16 years later, students help set Anthony Graves free. Richard Schlesinger reports.

Earlier coverage of Anthony Graves case and his exoneration begins at the link.  All coverage is in the Anthony Graves index.

Oklahoma Governor Signs Lethal Injection Legislation

That's the title of the AP report, via the Tulsa World.

Gov. Mary Fallin has signed into law legislation that supporters say will give prison officials more flexibility when choosing which lethal drugs to use to administer the death penalty.

The bill by Rep. Dan Sullivan of Tulsa received final passage in the Senate last week and was signed Monday by Fallin.

The measure clarifies that the death penalty is to be carried out by administering a lethal quantity of a "drug or drugs" instead of specifying which drugs are to be used.

Today's Oklahoman reports, "Law alters death penalty drug," by McClatchy-Tribune Information Service.

Oklahoma has used the anesthetic sodium thiopental as the first in a three-drug formula since it adopted lethal injection as its method of execution in 1990.

But after a nationwide shortage of the drug last year, Oklahoma substituted pentobarbital, a barbiturate similar to one used to euthanize animals.

The legislation is House Bill 1991.

Earlier coverage of Oklahoma lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Commentary on the Denkowski Sanction

Michael Landauer posts, "We don't kill the mentally retarded. But how do we decide if someone can be executed?" at the Dallas Morning News Death Penalty blog.

A very troubling story in the New York Times late last week. It seems that the psychologist who "examined" death row inmates to determine if they were mentally retarded has been reprimanded for, well, quackery.

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense lawyers as unscientific. Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

So what did the good doctor do that other, better doctors and researchers had a problem with? He ignored established tests for determining mental capacity and substituted his own, which he says corrected for cultural differences. Hey, maybe some cultures just don't teach kids how to read a menu or what a thermometer is used for, he reasoned.

In a 2006 evaluation of Steven Butler, who was convicted in the killing of a store clerk, Dr. Denkowski rejected other I.Q. test scores that indicated Mr. Butler was well below average intelligence. He discounted behavioral evaluations from Mr. Butler's family and friends, who said the young man could not understand the rules of basketball, had to have others read menus for him and had failed basic classes.

In perhaps the strangest twist in this agreement, both sides said that this public slap-down cannot be used in death penalty appeals. Why the hell not? (Fortunately, defense lawyers plan to challenge this.)

The Investigative Fund carries, "Death Row Psychologist Reprimanded."  It's posted by Jed Bickman.

Texas psychologist George Denkowski will never again evaluate inmates' IQ to determine if they are mentally disabled — and thus unable to face the death penalty — or not. The Texas State Board of Examiners of Psychologists has issued him a reprimand. He will also pay a fine of $5,500. All of which is good news for the fourteen inmates on Death Row who Denkowski, using highly criticized and faulty methods, determined were not mentally handicapped. It comes too late for the two inmates who have already been executed after Denkowski found them mentally capable. 

Last January, in a Texas Observer cover story, Investigative Fund reporter Reneé Feltz exposed the questionable methods and junk science used by psychologist George Denkowski in an article about the Texas death penalty case of Mexican immigrant Daniel Plata. In the 2002 Atkins v. Virginia ruling, the Supreme Court stated that "executions of mentally retarded criminals are cruel and unusual." Defense lawyers called Denkowski "Dr. Death" for his finding twenty-one of the twenty-nine inmates he has worked with to be mentally capable — and thus eligible for the death penalty. Feltz showed that he routinely inflated the inmates’ IQ scores through faulty methods.

And:

Defense attorney Robert Morrow told Feltz, "Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded." Morrow represented Alfred DeWayne Brown, who remains on Death Row, but whose case may receive more scrutiny in light of last week's settlement.

On April 13, Denkowski reached a settlement with the Texas State Board of Examiners of Psychologists, which issued a formal reprimand against him and dismissed, with prejudice, the complaints against him. Under the terms of the settlement, Denkowski has agreed to never again conduct intellectual disability evaluations in criminal cases. 

Defense attorneys for the fourteen inmates currently on Death Row believe that last week's settlement will provide new hope for their clients, who they argue are mentally handicapped, to escape execution.

The decision is a small victory in the larger fight to bring justice to the death penalty system. State Senator Rodey Ellis of Houston, chairman of the Innocence Project, said that the courts should review every case involving Denkowski. "We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men," he said.

Earlier coverage of the Denkowski sanction begins at the link.  Feltz' earlier reporting is noted at the link.

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

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

A Look at the FSC's Arson Work

"Forensics report on Willingham case advances good science," is the editorial in today's Fort Worth Star-Telegram.

Members of the Texas Forensic Science Commission last week sidestepped the most incendiary issue facing them, but in doing so they focused attention on important recommendations for improving the criminal justice process.

A report has been expected for months on whether the commission found negligence or professional misconduct by investigators who concluded that Cameron Todd Willingham started the fire that killed his three young daughters in 1991.

The panel's conclusions on that issue could have broad ramifications not just for arson prosecutions in Texas but for the death penalty debate because Willingham was executed in 2004, though he insisted he didn't set the fire.

But commissioners are awaiting an attorney general's opinion on whether they have jurisdiction over cases predating the body's 2005 creation.

As a result, the lengthy report they approved Friday dealt largely with general findings derived from extensive hearings into the Willingham case.

The report reflects careful, thoughtful work by scientists and lawyers dedicated to the proper use of accurate forensics in criminal prosecutions.

And:

The commission called for a code of ethics; recommended that new data about fire science experiments be effectively disseminated; and said investigators should be better trained in documenting their debris analysis and preserving records.

A debris analysis report from the Willingham case couldn't be found.

Commissioners also recommended that standards be developed to reexamine cases "when science has evolved to create a material difference in the original analysis or result."

The state has an obligation to get things right, especially when there's no going back.

The Texas Tribune reports, "Bassett: Politics Stymied Willingham Investigation."  It's written by Aziza Musa.

The former chairman of a state forensic board applauded the current commissioners' report on the arson investigation used to convict Cameron Todd Willingham, a review that recommended wide-ranging improvements in fire science. But he said he's deeply concerned that politics interfered in their ability to take a stronger stance on the case.

"The level of controversy that an investigation might cause should not be a criteria for advancing the cause of forensic science in Texas," Austin attorney Sam Bassett wrote in an email to The Texas Tribune.

And:

Here's the full text of Bassett's email: 

I was heartened to see the hard work of the Commissioners in pushing through a report on the Willis/Willingham case this week.  The report is forward looking, as it should be.  It does appear to establish that the science which was largely the basis of Todd Willingham’s conviction was flawed.  We will never know if Willingham was innocent or guilty.  However, one thing is certain – much of the “expert” testimony used to convict him was not based upon sound scientific principles.  It is clear that the evolution of fire science showed this to be true well before the date of Willingham’s execution.   The Commission is correct to recommend that forensic entities (such as the State Fire Marshal’s Office) must take measures to inform and correct in cases where science evolves and/or changes.  It is clear that the State Fire Marshal’s Office should have done more to keep pace with science and inform fire investigators throughout Texas once NFPA 921 was published.  If they had done so, perhaps Mr. Willingham would have had a new trial at which the jury would have had the benefit of an investigation based upon good science.  Instead, those who could have done something to shed scientific light on the case did nothing and Mr. Willingham was executed. 

I am hopeful that the Commission will proceed to the final inquiry in the case – whether or not fire investigators and/or law enforcement committed professional negligence or misconduct during the course of the case.  Only recently, the Commission has chosen to seek the opinion of the Attorney General of the State of Texas on the issue of the jurisdiction of the Commission.  It is interesting to me that the jurisdiction question is being raised at this late juncture, at a time when the Commission appears to be seriously considering a finding of professional negligence or misconduct.   The jurisdictional question was considered when I was Presiding Officer and the Commission.  At that time, Commissioner Alan Levy (a prosecutor) and myself both believed the Commission was within its jurisdiction to investigate the Willingham case.  Now, it seems the question is in the hands of an elected official (The Attorney General) and I remain concerned that politics, rather than science, will influence the decision.

The Commission’s journey to this point was not easy.  If you recall, the complaint was originally filed in 2006.  At that time the Commission had no funding.  In 2008, after the Commission was funded, the Commission voted unanimously to proceed with the investigation.  It has taken almost three (3) years to reach this point.  To me, that is not acceptable to most Texans, myself included.  I hope that future investigations of this importance are not delayed in this fashion.  The level of controversy that an investigation might cause should not be a criteria for advancing the cause of forensic science in Texas.  My hope is that the Commission will grow to be more science oriented as a result of the Willingham investigation.  The persistence of scientists on the commission in 2010 and 2011 is what brought us to the point where we are today.  I thank them for their hard work.

Earlier coverage of the Forensic Science Commission report begins at the link.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

From Tennessee

The Tennessean reports, "TN may need a new way to execute Death Row murderers."  It's written by Brian Haas, and appeared in the Sunday edition.  Here's the beginning:

Tennessee has 86 killers on death row and no way to execute them after the state’s supply of a key lethal injection drug was seized by the federal government.

Now, Tennessee has to make a death penalty decision.

If it doesn’t change its lethal injection drug or the legislature doesn’t pass a law allowing the state to use alternative means of executions — electrocution, hanging, gas chamber or some other method — death row inmates will remain indefinitely imprisoned and families of murder victims will be left waiting for final punishment to be meted out.

“It’s extremely frustrating. We are carrying on our lives, but it’s just such a heavy burden,” said Misti Ellis, whose father, Jerry Hopper, was killed in a shooting rampage in 2005 in Jackson. “I hope that it’s a procedural bump in the road. I hope they can find some way to resolve it or find a new method. I certainly would not want to see, for myself or any other family that feels the same way, to have that changed because of a supply problem.”

Hopper’s killer, David Jordan, 47, is second in line to be executed this year. He is scheduled to die Sept. 27.

In less than five months, the state is set to start executing death row inmates like Jordan again. But a nationwide shortage of that key drug used in lethal injections has largely ground to a halt executions across the nation. Like other states, Tennessee has had to turn over its stock of sodium thiopental to the U.S. Drug Enforcement Administration because of allegations it may have been illegally obtained from an unregulated overseas supplier.

Neither Gov. Bill Haslam’s office or the Tennessee Department of Correction would say what the state would do to fix the state’s death penalty quandary.

“The commissioner isn't prepared to discuss what will happen next. He is still reviewing our options,” said Dorinda Carter, spokeswoman for the Department of Correction. When asked about those options, she responded, “He’s not ready to discuss them at this point.”

And:

The Rev. Stacy Rector, with Tennesseans for Alternatives to the Death Penalty, said the supply problems are irrelevant to their larger concerns.

“It is a huge problem, but it doesn’t get at the real core issue, which is, can we as a society maintain the death penalty system given all of its problems?” she said. “I think it’s just one more symptom of a huge problem that we don’t need to have. We could be spending our energy and our resources focusing more on helping murder victims’ families to heal.”

Earlier lethal injection coverage begins at the; earlier coverage from Tennessee is also available.

Additional Reporting of the Denkowski Sanction

Mike Tolson writes, "Psychologist agrees not to testify again," for the Houston Chronicle.  It appeared in the Saturday edition.

A controversial Texas psychologist whose criminal justice work had made him a modern-day version of the notorious "Dr. Death" — who testified for the state in hundreds of capital punishment trials a generation ago — has reached a settlement with a state licensing board in which he agrees to conduct no more evaluations of intellectually challenged defendants in criminal proceedings.

While admitting no wrongdoing, psychologist George Denkowski agreed to stop evaluating criminal defendants for possible mental retardation after the Texas State Board of Examiners of Psychologists determined that his techniques lacked scientific credibility. The board had become concerned that Denkowski's methods were being used to make life-and-death decisions but had not been validated.

The board also issued a formal reprimand and a fine of $5,500 in exchange for dropping complaints against Denkowski. The settlement came after increasing opposition to Denkowski's opinions, which had been used to keep 16 Harris County killers on Texas' death row after the Fort Worth psychologist concluded that they were intellectually capable enough to be subject to execution. Two of those inmates were executed.

But the tide turned against him as lawyers for inmates marshaled the collective opinion of clinical psychology. In in 2008, a state judge in Harris County tossed out a Denkowski evaluation in a capital case because the judge said it lacked evidence of accepted methodology. The defendant's sentence was commuted to life. Two years later, the American Association on Intellectual and Developmental Disabilities cautioned against using Denkowski's methods until they had been scientifically proved.

And:

Denkowski's testimony was reminiscent of that of forensic psychiatrist James Grigson, another prosecutor favorite in the 1980s.

Grigson was nicknamed "Dr. Death" because he repeatedly testified in competency hearings for the state and frequently opined in capital trials that defendants represented a future danger (a requirement of the Texas capital murder statute at the time), even in cases where he conducted no evaluation of or had any contact with the defendant.

He once testified that defendant Kelsey Patterson, an oft-delusional schizophrenic, was sane when he inexplicably killed two people in Palestine in 1992, even though in previous non-lethal assaults by Patterson, Grigson had consistently found that Patterson, because of schizophrenia, was not sane when he attacked people.

In time, Grigson also ran afoul of professional organizations and became largely discredited. Though he thumbed his nose at the professional disapproval, claiming it was politically motivated, his testimony became a double-edged sword too dangerous for prosecutors to use. Grigson died in 2004.

The expanded AP report is, "Texas psychologist banned from death row cases," by Jim Vertuno.  It's via the Houston Chronicle, and is also available from Google News and the Republic.

"Once again, another junk science scandal has rocked Texas' death row," said Kathryn Kase of the Texas Defender Service, who represents former death row inmate Daniel Plata.

Denkowski testified in 2005 that Plata did not have mental retardation despite several tests that showed his IQ was under 70. Plata's death sentence was reduced to life in prison on appeal in 2008 because of his intellectual capabilities. He now lives with other disabled inmates.

Denkowski's attorney, Jennifer Andrews, did not immediately respond to message left at her office seeking comment.

Not all of Denkowski's testimony favored prosecutors. Denkowski testified for the prosecution in two cases where he found the inmates did have mental retardation.

In the case of James Clark, who was executed in 2007, a court overruled Denkowski's finding. And in the case of Michael Richard, who also was executed in 2007, Denkowski testified first that Richard wasn't mentally retarded but then changed his mind and said he was.

Denkowski was a defense witness for Elkie Lee Taylor and Michael Hall, who were both executed in 2008. Denkowski determined they were mentally retarded, but his findings were overruled by the courts.

Texas state Sen. Rodney Ellis, D-Houston, a member of the Criminal Justice Committee and chairman of the Innocence Project board, said the courts should review all cases with Denkowski's testimony.

"We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men," Ellis said.

Earlier coverage of the Denkowski sanction begins at the link.

Dave Mann's Reporting on the FSC Report

Texas Observer journalist Dave Mann writes, "A Nebulous End to the Willingham Inquiry."  I'm singling it out because of his earlier reporting on other arson cases, tainted by old science.  Here's the beginning of this must read:

The moment had an air of finality to it.

In a small hearing room in downtown Austin, eight members of the Texas Forensic Science Commission voted this afternoon to adopt their final report on the long-disputed arson conviction of Cameron Todd Willingham. It was a moment five years in the making. The New York-based Innocence Project had originally asked the commission to investigate the case back in 2006. So when the final vote was taken to adopt the report, an Innocence Project staffer and members of Willingham’s family—who claim that Texas executed an innocent man—applauded from their seats in the front row.

It felt like an ending. But what exactly the end result was—like so much in the Willingham saga—seems unclear. If this was the end, it was a nebulous one.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

The commission refused to address those questions because it’s not clear it has the authority to do so. In January, the commission requested an opinion from the Texas Attorney General’s office on whether it has jurisdiction to determine “professional negligence” in arson cases.

The AG’s opinion is due this summer. But the commission chose to issue a final Willingham report anyway. It’s not exactly clear why the commission was in such a rush, though it’s worth noting that this was likely the last meeting for controversial Chair John Bradley. The Texas Senate is unlikely to confirm Bradley before the end of the legislative session. Perhaps Bradley wanted to finish the Willingham report before he’s removed from the commission and returns exclusively to his day job as Williamson County DA.

Earlier coverage of the FSC meeting begins in the preceding post.

More of Mann's arson journalism begins at the link.

FSC Calls for New Look at Old Arson Cases

"Texas science panel adopts arson recommendations," is the AP report, via Google News.  Here are extended excerpts:

A state panel on Friday recommended more education and training for fire investigators following its review of a case involving a Texas inmate executed after a fire labeled arson killed his three daughters.

The Texas Forensic Science Commission also recommended establishing procedures for revisiting old cases.

Cameron Todd Willingham was executed in 2004. Prosecutors accused the 36-year-old unemployed mechanic of setting the fire at his home in Corsicana, about 60 miles south of Dallas. A jury convicted him of capital murder and sent him to death row. His conviction was upheld nine times on appeal.

And:

Death penalty opponents have questioned arson investigators' testimony that led to Willingham's conviction and suggest he may be the first person wrongly executed in the U.S. since capital punishment resumed more than three decades ago. Several experts have since concluded the fire at his home was of undetermined cause or accidental but not arson, as two fire marshals at the scene ruled in 1991.

The commission on Friday completed an often tedious review of its nearly 50-page draft report based on Willingham's case and settled on the 16 recommendations for fire investigators, prosecutors and defense attorneys and lawmakers.

"We're suggesting somebody else is going to have to carry these things out," said Commission Chairman John Bradley.

The panel said Thursday that it wouldn't decide whether arson investigators were negligent or guilty of professional misconduct in Willingham's case until the Texas attorney general's office decides whether the panel has that authority.

The state commission can't exonerate Willingham or reopen his case but determines whether forensic science in such cases was sound. The eight-member panel won't make a ruling on negligence or professional misconduct by the fire's initial investigators until it gets word from the attorney general, a decision not likely until July. John Bradley, a suburban Austin district attorney and the commission chairman appointed by Gov. Rick Perry in 2009, had requested the legal opinion. After courts rejected appeals in Willingham's case, Perry refused to stop Willingham's execution.

"In general, I'm satisfied," said Stephen Saloom, policy director for the Innocence Project, which first raised questions about the case. "They were constrained by the AG's opinion and have had to overcome the chairman's relentless efforts to keep a lot of issues down. In the areas they're permitted to address, they've made some significant progress and deserve credit for that."

He called it a great improvement over the draft report released Thursday.

"They've gotten much more specific," he said. "It responds to the allegations as much as possible. This gives a chance for all those past cases."

The panel's recommendations also include establishing a code of ethics for investigators and making procedure for involving the state fire marshal's office in fatal home fires. The commission acknowledged the Texas Legislature controls the money needed to implement a number of its recommendations.

Another wants the fire marshal's office to adhere to standards established by the National Fire Protection Association and become a model for local fire investigators in Texas. They also urged investigators to keep original files of their cases and forward copies of documentation to other interested parties like prosecutors and defense attorneys. In Willingham's case, the Forensic Science Commission can't see arson investigators' files because they've been lost.

The commission spent lengthy time Friday debating a review procedure they said fire investigators should establish for resolved cases, a re-examination process common in medical settings.

Commissioner Sarah Kerrigan called it central to the overall report, saying results and interpretations like Willingham's from 1991 may not be valid years later. They needed to be looked at and "stakeholders" impacted by any new interpretations be informed, she said.

"Forensic panel urges new look at old arson cases," is the title of Chuck Lindell's Austin American-Statesman report.

Adopting a stronger call to action Friday, a state agency concluded its review of the Cameron Todd Willingham case by urging Texas fire officials to re-examine investigations that may have relied on arson evidence now known to be unreliable.

The Texas Forensic Science Commission also added language to its final report clarifying the role that now-discredited "arson indicators" played in Willingham's conviction on murder charges.

The commission's inquiry, focused on the arson science behind the Willingham case, was never intended to weigh the guilt or innocence of the man Texas executed in 2004.

But the report adopted Friday marked the first time a state agency has acknowledged that unreliable evidence played a role in Willingham being convicted of setting fire to his Corsicana home in 1991 and killing his three young children.

"It's a good report," said Stephen Saloom, policy director of the Innocence Project, a New York legal advocacy center that filed the Willingham complaint with the commission in 2008.

"It makes clear that the old forms of arson evidence are not reliable and need to be banished from fire investigation practices in Texas," Saloom said. "And this gives a chance for justice for all those past cases where people may have been wrongfully convicted of arson."

The report, adopted 8-0 with one member absent, will be posted on the commission's website Monday.

The final version urged the Legislature and cities to set aside enough money to ensure that fire investigators are fully trained in the ever-evolving scientific understanding of fire behavior.

The panel offered 15 other recommendations for improving fire investigations, including formal adoption of investigative standards outlined in a National Fire Protection Association document, NFPA 921: Guide for Fire and Explosion Investigation, and establishing peer review panels to examine pending arson cases.

But much of Friday's efforts were focused on whether the state fire marshal's office — whose investigator was the prosecution's star witness against Willingham — has a duty to re-examine other past investigations that may have been influenced by now-discredited investigative techniques.

"If the science changes, if the interpretation of the case changes over time, is there an obligation to inform the stakeholders and the criminal justice system? If the answer is no, then we're really in trouble," said commissioner Sarah Kerrigan, a forensic toxicologist and associate professor at Sam Houston State University.

"Texas Forensic Science Commission approves report calling for improvements in arson investigations," by Erin Mulvaney for the Dallas Morning News.

The report approved Friday mostly addresses “forward-looking” issues, such as suggesting what kind of experts should be allowed to testify at trial, how a fire should be investigated, and education requirements for prosecutors and judges. It also encourages the state fire marshal’s office and local agencies to adopt national fire science standards and practices, conduct internal audits and adopt a code of ethics.

Although national fire standards have been updated in the last two decades, the state fire marshal’s office stood by the conclusions reached in 1991. In August, a representative sent a letter to the commission contradicting the fire experts’ opinions, saying the investigation was valid, even after the new fire science standards were applied.

Steven Saloom, policy director at the New York-based Innocence Project, which originally filed the complaint, said after the edits from commissioners on Thursday and Friday, the panel’s report is “excellent.”

“It’s an affirmative statement to bring order to the chaos of arson investigations,” Saloom said. “This gives a chance for justice for all past cases where people have been wrongfully convicted.”

The commissioners adopted language Friday urging the fire marshal’s office to create standards consistent with accredited laboratories, which inform criminal justice stakeholders about updated science that could have changed the outcome of a case.

“We all concur that opinions rendered in the ’90s could be different than today,” said Sarah Kerrigan, the commissioner who suggested the change. “If science changes, they have the obligation to inform the criminal justice leaders.”

If the agency adopts the policies, she said, it probably would affect only a small number currently in prison for arson. More than 700 are currently imprisoned for arson.

The national fire science guidelines were released in 1992, a year after the Willingham fire, and although the fire marshal’s office said it began to train investigators based on the criteria, it did not re-evaluate cases where people were sent to prison based on outdated science.

Dave Montgomery writes, "Texas Forensic Science Commission suggests changes for fire investigations," for the Fort Worth Star-Telegram.

A state commission reviewing the arson investigation that led to the execution of Cameron Todd Willingham made far-reaching recommendations Friday to improve and modernize fire investigations.

The report was praised by the Willingham family and a spokesman for the Innocence Project, which initiated the review.

The nine-member Texas Forensic Science Commission issued its findings after a two-day meeting to review a draft report, which was 21/2 years in the making.

The report stopped short of determining negligence or professional misconduct in the Willingham case until Texas Attorney General Greg Abbott resolves jurisdictional questions about the inquiry.

But even commission critics hailed the recommendations as a much-needed step toward improving the quality of fire investigations in Texas and addressing standards of investigative practice.

Willingham's three daughters died in a fire at their Corsicana home in 1991. Willingham was convicted of setting the fire and killing them, and he was executed in 2004. He repeatedly maintained his innocence.

"After soliciting and reviewing input from numerous sources, the FSC concludes that there was no uniform standard of practice for state or local fire investigators in the early 1990s in Texas or elsewhere in the United States," the panel reported.

The report's 16 recommendations could collectively prod state and local fire investigators to adhere to modern investigative standards that have evolved over the past two decades.

One key recommendation could lead to a re-examination of old cases using newer forensic techniques.

"Board Approves Report on Willingham," by Aziza Musa for the Texas Tribune.

The final version will be available to the public on Monday. The original draft report, released Thursday, made recommendations to fire investigators, lawyers and judges and explicitly says the board will not rule on professional negligence while Attorney General Greg Abbott's decision is pending.

Willingham was convicted of setting fire to his Corscicana home and killing his three daughters in 1991, but he maintained his innocence. Following his execution in 2004, fire science experts questioned the evidence used to convict him.

The commission received a request from the Innocence Project, a New York-based ciinic that seeks to exonerate wrongfully convicted people, to review the Willingham case for professional negligence in 2006 and took up the case three years later. But Gov. Rick Perry replaced his appointees on the commission and named Williamson County District Attorney John Bradley as chairman.

The board met twice in January 2010 to hear testimony and decide how to move forward with the Willingham case, but Bradley called upon Abbott's office to figure out whether they had jurisdiction over the case. Commissioners urged Bradley to move forward and begin drafting the report while awaiting Abbott's opinion.

Today, members discussed one recommendation to create a multidisciplinary panel that would review pending arson cases, and Commissioner Sarah Kerrigan said the board should add language that would establish the panel to review arson cases retrospectively as the science evolves. "We're talking about science," she said. "It will naturally progress." Kerrigan said there is an obligation to tell stakeholders in the criminal justice system when the science and interpretation of the science changes.

Commissioners largely agreed. Commissioner Lance Evans said the recommendation does not touch on the Willingham investigation. But Bradley argued doing so would step on the toes of the attorney general.

After nearly 20 minutes in executive session, commissioners decided that the report will now say, "Accredited disciplines of forensic science have standards that promote the reexamination of cases when science has evolved to create a material difference in the original analysis or result." The standards include a duty to correct, to inform, to be transparent and to implement corrective action, and the commission recommends the state fire marshal's office adopt those standards, according to the new report.

The FSC approved report should be available later today.  I'll update when it's posted on the FSC website.

In the next post, I want to highlight Dave Mann's reporting on the meeting.  Earlier coverage of the two-day FSC meeting begins at the link.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Texas Defender Service on the Denkowski Sanction

Texas Defender Service has issed a news release, "Forensic Psychologist Banned from Making Mental Retardation Evaluations in TX Death Penalty Cases."

George C. Denkowski, a psychologist who used his own criteria to find many men eligible for the death penalty, was banned today from practicing forensic psychology in Texas.  Denkowski's methodology, which often used unaccepted diagnostic techniques of inflating IQ and adaptive behavior scores for reasons of lifestyle and culture during the evaluations of death row prisoners, had come under scrutiny by his peers. The Texas State Board of Examiners of Psychologists began investigating Denkowski's methods after a complaint was filed by at least one of his colleagues alleging he misused psychological testing and inflated IQ scores.

Denkowski served as an expert witness for the prosecution in at least 25 capital and noncapital cases in Texas and around the country, and he provided testimony (especially in Harris County) of at least fourteen inmates currently on death row, including two who have exhausted all appeals, and four other inmates who have already been executed.  In some cases, Denkowski served as a witness for the defense.

"Once again another junk science scandal has rocked Texas' death row," said Kathryn Kase, an attorney with Texas Defender Service who represents Daniel Plata. "The courts must review the cases of these men who were evaluated using highly questionable methods before any executions take place. Otherwise, we will not only be violating the Constitution, but our most basic moral standards."

In 2005, Denkowski found that Kase's client Plata did not have mental retardation, despite three IQ tests showing an IQ below 70. Denkowski added points to Plata's adaptive behavior test results because Plata was from an "impoverished background." The state courts disagreed with Denkowski's opinion and sharply rebuked him for his improper methods.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court banned the death penalty for people with mental retardation.  Expert forensic psychologists are used to determine if a defendant has mental retardation and if he is eligible for the death penalty.  Many of the men whose scores Denkowski raised were African American, Hispanic, or non-English speaking.      

Denkowski's methodology had come under scrutiny by his peers before. His diagnostic techniques were cited in the 2010 edition of the American Association on Intellectual and Developmental Disabilities' manual, which "strongly caution[s] against practices such as those recommended by Denkowski."

In addition to Plata, other cases where Denkowski's determinations of mental retardation were central include:

*      John Matamoros -- Matamoros was diagnosed at 14 with mental retardation, but was denied relief under Atkins based on Denkowski's personal scoring system, which included increasing Matamoros' self-care rating on the basis that he filed his fingernails by biting them.  He has an appeal pending before the Fifth Circuit challenging Denkowski's diagnostic techniques.

*      Virgilio Maldonado - Denkowski made more than 60 upwards adjustments on Maldonado's adaptive behavior scores and a Spanish-language interpreter suggested answers to him during the tests.  These actions should have invalidated the test scores, but state and federal courts have upheld Maldonado's death sentence. 

*      Steven Butler - IQ tests conducted in 2003 by a defense expert and in 2006 by Denkowski show that Butler had mental retardation, but Denkowski rejected the full-scale IQ score on the test he administered and inflated Butler's score by selecting the score Butler received on only three of the test's eleven subtests, despite not being able to point to any scientific basis for such an interpretation. He also inflated Butler's adaptive scores on the basis of "non-intellectual factors," such as claiming that Butler's limited academic achievement was the result of lifestyle choices not inadequate learning ability.  Butler has an Atkins appeal on hold in federal court pending final resolution of the complaint against Denkowski.

*      Calvin Hunter - School records and previous IQ testing showed that Hunter had mental retardation.  Denkowski did not administer an IQ test, but testified that Hunter did not have mental retardation.  Hunter has an appeal pending to remand his case to a trial court based in part on Denkowski's flawed evaluation.

*      Michael Richard - Denkowski initially found that Richard - who required help of his sisters to dress himself until age 14 and cut his meat with a spoon because he could not use a knife - had mental retardation, but reversed himself after the District Attorney's Office intervened. Denkowski calculated Richard's adaptive behavior score by relying on normative scales for men twenty years younger than Richard and by making assertions based on objects found in Richard's cell. Richard was executed in 2007 following a controversial decision to close the courthouse doors to his appeal. 

Several Atkins appeals in Texas have been on hold pending the outcome of Denkowski's hearing.  However, without legislative action, many of these individuals could be procedurally barred from pursuing appeals based on Denkowski's junk science. 

"We must make sure that every case where Mr. Denkowski served as an expert is reviewed by the courts. We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men, especially on the word of someone who is no longer permitted to make these kinds of determinations," said Texas State Senator Rodney Ellis.

Earlier coverage of the Denkowski sanction begins with the preceding post.  Related posts are in the mental retardation category index.

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

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

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Additional Coverage of Denkowski Sanction

Molly McDonough posts, "Psychologist’s Reprimand Gives Hope to Counsel for Death Row Inmates," at ABA Journal.

In a closely watched case, lawyers for death row inmates who were cleared for trial by a Texas psychologist reprimanded for his methods are hopeful their clients will avoid lethal injection.

The Texas State Board of Examiners of Psychologists has reprimanded Dr. George Denkowski, whose intellectual competency testing methods have been criticized as unscientific, the New York Times reports.

Denkowski, who examined 14 inmates who are now on Texas’ Death Row and two others who were subsequently executed, agreed on Thursday never to perform his intellectual disability evaluations again. He also agreed to pay a $5,500 fine in exchange for the board dismissing complaints about him.

Denkowski, who believed traditional tests didn't compensate for social and cultural factors, has been criticized by other psychologists for using methods that they say artificially inflated intelligence scores to make defendants eligible for the death penalty.

One death row inmate's sentence has already been commuted to life, after a state judge questioned Denkowski's methods in 2007. In another case, a federal appeals court has stayed an execution, pending the outcome of complaints against Denkowski.

State Senator Rodney Ellis, who chairs the state's Innocence Project board and is a member of the Criminal Justice Committee, tells the Times that every case involving Denkowski should be reviewed.

Earlier coverage of Denkowski's sanction begins with the preceding post. 

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

Sham MR Evaluations

Though the U.S. Supreme Court declared the execution of offenders with mental retardation unconstitutional in 2002, Texas has persisted in bending the rules.  This year marks the fifth legislative session in which Texas lawmakers have failed to pass legislation to establish procedures to memorialize Atkins v. Virginia.

Brandi Grissom writes, "Psychologist Who Cleared Death Row Inmates Is Reprimanded, for today's New York Times and the Texas Tribune.  It's another must-read from journalist Grissom:

A psychologist who examined 14 inmates who are now on Texas’ Death Row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty, agreed on Thursday never to perform such evaluations again. Lawyers for the 14 inmates hope the agreement will help their clients, who they argue are mentally handicapped, to escape lethal injection.

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense lawyers as unscientific. Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

Texas defense lawyers and forensic psychologists across the nation have watched the case closely. Although Dr. Denkowski admitted no wrongdoing and defends his practice, those critical of his methods said the settlement could give those inmates still on death row an important appellate opportunity.

“It really suggests that he screwed up,” said Dick Burr, a lawyer who represents Steven Butler, a death row inmate, and who filed one of the complaints against Dr. Denkowski.

The United States Supreme Court ruled in 2002 that states cannot execute mentally handicapped people. But the court did not provide guidelines for determining whether a person is mentally handicapped, leaving it up to the states to create criteria. Texas courts have generally adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since a young age.

Dr. Denkowski was an expert witness whom prosecutors — particularly in Harris County — relied upon to determine whether a murder defendant would be eligible for execution. In 2009, other psychologists and defense lawyers complained to the board of psychologist examiners that Dr. Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.

Dr. Denkowski published a 2008 article in the American Journal of Forensic Psychology describing his technique for scoring defendants. He said traditional tests did not compensate for social and cultural factors. For example, he wrote, those who come from impoverished backgrounds may not have learned basic skills like using a thermometer or maintaining hygiene simply because those skills were not valued in their community. But that does not necessarily indicate a lack of intellectual function, he said.

Dr. Denkowski also explained why he deviated from the standard use of a test that evaluates adaptive behavior or life skills. The test is typically administered to family members and friends who know the person to ask about how the person functions — whether he is able to pay rent, fill out job applications, read menus, etc.

Dr. Denkowski administered that test to the inmate instead. People close to the individual, he wrote, “tend to understate a defendant’s actual functioning markedly” because they do not want him to face execution.

Other psychologists have rejected Dr. Denkowski’s methods, arguing that they have no scientific basis. The American Association on Intellectual and Developmental Disabilities in its 2010 manual for classifying intellectual disability strongly cautioned against using Dr. Denkowski’s methods “until firmly supported by empirical evidence.”

“What Denkowski has been doing is a pretty radical departure,” said Marc J. Tassé, director of the Ohio State University Nisonger Center and an expert in developmental disabilities. “There’s absolutely no scientific basis to his procedure.”

There is no evidence, Dr. Tassé said, that a person from a poor family is less likely to learn basic life skills. He said he knew of no other forensic psychologist who uses similar methods.

And:

State Senator Rodney Ellis, Democrat of Houston, chairman of the Innocence Project board and a member of the Criminal Justice Committee, said every case involving Dr. Denkowski should be reviewed by the courts.

“We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men,” Mr. Ellis said, “especially on the word of someone who is no longer permitted to make these kinds of determinations.”

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

The Texas Tribune partners with the New York Times to provide enhanced local news coverage of Texas.

Earlier coverage of Denkowski's practices in Texas is at the link.

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

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

International Lethal Injection Developments

There are two news items of interest from the Associated Press.

"Britain Bans Exports of Execution Drugs to US," is via the New York Times.

Britain said Thursday it will block the export of three lethal injection drugs to the United States and is also urging a Europe-wide ban on American sales of the drugs.

Business Secretary Vince Cable said that a block on exports of pentobarbital, pancuronium bromide and potassium chloride would be formalized in a few days. In November, Britain blocked exports of the sedative sodium thiopental for use in executions following a legal challenge from a human rights group.

"We oppose the death penalty in all circumstances and are clear that British drugs should not be used to carry out lethal injections," Cable said. "Because of the importance and urgency of the situation this is an issue on which we felt we had to take the lead."

Britain has urged the European Commission to expand the export ban to all European Union nations, Cable added.

Reprieve, the London-based group for prisoner rights that sought the ban, welcomed the news but it said U.S. states imposing the death penalty via lethal injection are now turning to a Danish company, Lundbeck A/S, for supplies of pentobarbital.

Denmark's foreign minister said she will urge U.S. states such as Texas and Ohio to stop using that drug.

Pentobarbital is a sedative with a range of medical uses, including the treatment of epileptic seizures and other conditions that require some form of sedation. It is also often used for putting down animals. Since late last year, it has been used in the U.S. for lethal injections as supplies of sodium thiopental become scarce.

Danish Foreign Minister Lene Espersen said she cannot take direct action against Lundbeck because the drug is produced by a plant in Kansas.

Pentobarbital has been used to execute prisoners in Ohio and Oklahoma. Fellow U.S. states Mississippi and Arizona are also considering switching to the drug for lethal injections.

A second AP report, "Denmark Tries to Stop Death Penalty Drug," is via Time.  It's written by Jan M. Olsen.

Denmark's foreign minister said Thursday she will urge U.S. states such as Texas and Ohio to stop using a drug produced by a Danish company in lethal injections, and Britain announced it was banning the export of three such drugs to the United States.

Lene Espersen said she cannot take direct action against the company that produces pentobarbital because the drug is not exported from Denmark. It is produced by a plant in Kansas that is owned by Denmark's Lundbeck A/S.

Pentobarbital is a sedative with a range of medical uses, including the treatment of epileptic seizures and other conditions that require some form of sedation. Since late last year, it has been used in the U.S. for lethal injections. Denmark, as is the case with the rest of Europe, is against the death penalty.

Espersen has been asked by a left-wing opposition group if Denmark could find a way of stopping some U.S. states from using the drug in its executions. "I have no possibility to take direct action at American states' use of the product for executions, but I will also contact these states through the Danish Embassy in Washington with a call to cease using pentobarbital," Espersen said in a letter posted on Parliament's Web site April 12.

In Denmark, lawmakers can put written questions to government members who must reply in writing. "I find it deeply regrettable that a legal medical product is used for executions," she added in her reply to the small, left-wing opposition Red-Green Alliance.

Espersen could not be reached for comment Thursday.

Earlier lethal injection coverage begins at the link.

FSC Issues Draft Willingham Report

The draft report is available in Adobe .pdf format.

Chuck Lindell posts, "Willingham report released,"

A draft report issued today by the Texas Forensic Science Commission on the evidence used to convict and execute Cameron Todd Willingham focuses on training and education initiatives for fire investigators and makes several suggestions for continued improvement for investigations.

The report, as expected, takes pains to say that it does not comment on Willingham’s guilt or innocence. It does not reach conclusions about the performance of arson investigators. It acknowledges that fire science has improved since the 1991 fire that killed Willingham’s three young daughters and lays out some of the modern scientific understanding of fire behavior on questionable findings in the Willingham investigation.

The commission will discuss the draft report at its two-day meeting in Austin, which begins today at 1 p.m. and continues tomorrow morning.

Commission members have insisted that their investigation would focus on the science and say nothing about the guilt or innocence of Willingham.

Even so, the inquiry has become a rallying point for anti-death penalty groups who argue that Texas executed an innocent man.

The Innocence Project, a New York legal advocacy group that filed the Willingham complaint with the commission, also has proclaimed Willingham’s innocence and criticized Gov. Rick Perry for failing to stop the execution despite receiving a last-minute report questioning the arson science used in the case.

And:

In March, I wrote a story examining the arson evidence used to convict Willingham and compared it to the modern understanding of fire behavior. The story concluded that today’s fire investigators are warned against basing arson findings on the indicators used to convict Willingham.

The Willingham report is last on the agenda and will likely be discussed when the commission’s meeting resumes at 9:30 a.m. Friday.

The AP report is, "Texas panel issues no ruling in execution case," by Michael Graczyk, via the Houston Chronicle.

A state panel looking into the case of an executed Texas inmate is taking no immediate position on whether investigators correctly determined the fire that killed his three children was intentionally set.

Death penalty opponents have argued the case of Cameron Todd Willingham could be the first instance of a person wrongly executed in the United States since capital punishment resumed more than three decades ago. The New York-based Innocence Project first raised questions about the case in 2006, two years after Willingham was executed for the deadly home fire 20 years ago.

The Texas Forensic Science Commission said Thursday it wouldn't issue a finding on the arson determination until the state attorney general rules whether it has jurisdiction to do so.

Earlier coverage begins with news of John Bradley's stalled nomination. 

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Life Without Parole

"Bowers Examines Life Without Parole: The New Death Penalty?," is the title of a Q&A released by the University of Virginia School of Law.

Josh Bowers' background as both a public defender and an associate at a white-collar criminal defense firm gives him a unique perspective on criminal law issues. Now an associate professor at the University of Virginia School of Law, Bowers has written on prosecutorial discretion, plea bargaining and drug courts, among other issues. In his latest article, "Mandatory Life and the Death of Equitable Discretion," Bowers examines how life-without-parole sentences function as an alternative to the death penalty, but lack some of the flexibility built into capital punishment deliberations.

    Q. How did you become interested in looking at life without parole? Why is this relevant now?

    A. Austin Sarat, of Amherst College, invited me to write and present a chapter for a book on the question of whether life without parole is the new death penalty. The question is relevant because, over the past two decades, a majority of states have come to adopt life-without-parole statutes in one form or another, often as a mandatory alternative to capital punishment. Indeed, many death-penalty abolitionists have pushed hard for life without parole in an effort to reduce systemic reliance on capital punishment. (And with good reason: Public support for the death penalty declines precipitously when the sentencing jury is given life without parole as an option.) The turn away from the death penalty and toward life without parole has raised natural questions about the similarities and differences between the sanctions and the respective advantages and disadvantages of each.

    Q. Why/when did life without parole become a more frequently used sentencing tool?

    A. Life without parole is a relatively new innovation. Several states passed laws mandating or permitting the penalty following the Supreme Court's 1972 decision in Furman v. Georgia, which resulted in a temporary de facto moratorium on capital punishment. Eventually, a number of states enacted new death penalty laws that successfully addressed the constitutional infirmities identified by the court in Furman. Nevertheless, even after that, life-without-parole statutes continued to grow in popularity.

    To some degree, the passage of these statutes reflected a distrust of parole boards and a more general trend toward nondiscretionary sentencing in noncapital cases. More importantly, the laws found traction because they faced so little resistance from traditional criminal-justice reformers, who, as indicated, viewed the punishment as a palatable alternative to capital punishment. In this way, life without parole gave a little something to everyone: Those who opposed capital punishment got something other than capital punishment; and those who opposed the perceived leniency of discretionary actors – like judges and parole boards – got relatively more rigidity in punishment.

And:

    Q. How can the sentencing process for life without parole be improved?

    A. In my book chapter, I offer a couple of proposals – one weaker and one stronger – to improve the sentencing process for life without parole.

    The weaker version is to provide the capital-sentencing jury with more than just the options of death or life without parole. In this way, the jury would retain some amount of equitable sentencing discretion not only over the capital determination, but also over the life-without-parole determination. The more aggressive proposal is to do away with mandatory sentencing anytime life without parole is a potential sentence and, instead, to import an equitable jury-sentencing procedure modeled after the capital-sentencing approach.

    The advantage of the weaker proposal is that it would not impose significant added resource burdens. After all, the capital-sentencing jury would already be empanelled to ask and answer the equitable question. The advantage of the stronger proposal is that it would require an individualized determination of blameworthiness whenever a defendant faces a whole-life prison sentence (and not just in circumstances where a potential death sentence is also in play).

As linked above, the article, "Mandatory Life and the Death of Equitable Discretion," is available at SSRN.

A Study of North Carolina Death Sentences

Appalachain State University has issued a news release, "N.C. death penalty review provides data for lawmakers and others."  Here's the complete release:

While North Carolina was once a leading death penalty state, capital punishment has become rare, in part because of an unofficial moratorium on capital punishment in effect for the past five years, pending review of the protocol followed with the lethal injection process.

Appalachian State University professor Matthew Robinson thinks it’s time for lawmakers to consider the effectiveness of the state’s capital punishment system as a deterrent to crime as well as its cost.

Robinson, who teaches in Appalachian’s Department of Government and Justice Studies, is the author of Death Nation: The Experts Explain American Capital Punishment, “Justice Blind? Ideals and Realities of American Criminal Justice” and other books related to crime and the criminal justice system.

Robinson recently compiled a 57-page report titled The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies. The goal was to provide one document that the General Assembly could access if they want to know the facts about the death penalty in North Carolina,” he said of the report. It is available at .

Robinson will join other scholars to discuss the report at a press conference Monday, April 18, at 11 a.m. at the North Carolina Advocates for Justice building at 1312 Annapolis Drive in Raleigh in rooms room CLE 1 and 2.

Robinson’s review of some 24 studies or reports includes information about the cost of executions versus life in prison, and public opinion about the death penalty.

In his report Robinson writes, “Death sentences have declined in North Carolina, executions have been halted, murders have declined, and a large majority of state residents support a moratorium on executions. This is an appropriate time to carefully assess the state’s capital punishment system. A fundamental question for policy-makers to consider is this—is capital punishment a necessary practice for North Carolina?”

He said lawmakers should consider if the death penalty meets its goals or providing closure for victims, retribution to society, deterrence from murder, and reduced murder rate. “Is capital punishment something that we believe is a necessary policy. Is it something we need to keep doing,” Robinson asked? “And do the benefits the state and society might realize from death penalty outweigh its costs?”

According to N.C. Department of Corrections data, currently 158 prisoners are on death row. The most recent incarceration was in March, the oldest was in 1985. Since 1977, only 9.9 percent of people sentenced to death in the state have been executed.

According to a report published by Duke University’s School of Public Policy, it costs the state $2.16 million more for a death sentence case than a trial that leads to life in prison or a lengthy prison sentence when considering the cost of a trial, legal defense, appeals and incarceration.

“We are spending an enormous amount of money for a system we rarely use and that studies show has significant racial biases,” Robinson said.

As linked above, The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies, is available in Adobe .pdf format.

The most recent coverage from North Carolina focuses on the Racial Justice Act.

Brain Scans

Today seems to be scholarship day, so the next three posts will be devoted to new works by scholars.

First, at Scientific American today, "How "Inadmissible" Brain Scans Can Still Influence the Courts."  It's by Michael S. Gazzaniga.

The world of law as practiced in the real world is far removed from that usually discussed by law professors and philosophers or shown on television and in movies. In idealized or fictional cases the law always operates formally and may seem to pursue some abstract quest for justice. In the everyday practice of law, however, things work differently—it is all about cobbling together the most compelling and convincing story possible either for or against a defendant. Attorneys will shoehorn into their arguments any information they can find that might further their ends. The legal system therefore efficiently uses every scrap of relevant data that might pertain to a case—including findings such as brain scans that might not normally be formally admissible during trials.

The reality is that few criminal cases—only about 3 percent of federal ones and a bit more than 4 percent at the state level—ever go to trial. Normally, after someone is charged with a crime, the prosecution and the defense attorneys engage in confidential plea bargaining away from the courtroom. The plea negotiations are usually conducted informally (although in intense cases, such as those that might involve the death penalty, they can take on the appearance of a condensed sentencing hearing).

During these plea bargaining discussions, the defense presents any available information that might reduce the severity of the charges or the potential penalty against the defendant. To save a client from the death penalty, for instance, the defense might bring up brain-imaging data that suggests the defendant has a certain neurological or psychiatric condition that should reduce his or her culpability. The defense might suggest that the brain scans would at least cast doubt on the prosecution's ability to get a jury to return a sentence of death.

Of course, the prosecutor is free to reject this information and "let the jury decide." But in practice, if this informally presented neurological data seems persuasive, the prosecution may often agree to reduce the charges or to press for a lesser sentence—say, life imprisonment rather than death.

Why would prosecutors agree to such a change when brain scans are currently so rarely admissible as evidence in formal trials? They may not want to take a chance on what a judge will allow or what juries will believe. The more important reason, however, may be that negotiating an outcome without a trial usually makes both sides happy. Prosecutors might make a public show of disapproving of plea bargain deals but the fact is that trials are expensive; avoiding unnecessary ones conserves resources for the overburdened justice system.

Seeking Execution Drug, States Cut Legal Corners

That the title of a report by John Schwartz in today's New York Times.  Here's an extended excerpt:

A shortage of one of the three drugs used in most lethal injections has caused disarray as states pursue a desperate and sometimes furtive search that might run afoul of federal drug laws.

At the same time, it has given death-penalty opponents fresh arguments for suing to block executions.

Until recently, states that use the drug, the barbiturate sodium thiopental, got it from a domestic supplier, Hospira Inc. But that company stopped manufacturing the drug in 2009 because of manufacturing problems, and announced earlier this year that it would stop selling the drug altogether. International pressure on suppliers by groups opposed to the death penalty has further restricted access to the drug. States had to find a new source, but importation of sodium thiopental is highly restricted under federal law.

Recently released documents emerging from lawsuits in many states reveal the intense communication among prison systems to help each other obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution.

In depositions from Arkansas officials, Wendy Kelley, a deputy director of the Department of Correction, said she obtained sodium thiopental from a company in England after hearing about it from corrections officers in Georgia. Her state, she said, at various times had given the drug to Mississippi, Oklahoma and Tennessee free of charge, and obtained the drugs from Texas — traveling to Huntsville herself — and from Tennessee.

“I went wherever they had them,” Ms. Kelley said. “As best as I’m aware, the agreement my director had with other directors, any time there was an exchange, was that there would be a payback when needed.”

When Kentucky went searching for execution drugs earlier this year the state’s corrections commissioner, LaDonna H. Thompson, wrote in a memo that she had contacted departments in Georgia, Nebraska, South Dakota and Tennessee. A Georgia official “referred me to a distributor in Georgia that he thought might have a supply,” and that she had gotten information on “an organization in India,” Kayem Pharmaceuticals. (That company halted shipments to the United States last week under international pressure.)

Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has urged the Food and Drug Administration and the attorney general, Eric H. Holder Jr., to block the importation of unapproved execution drugs into the United States, said that the states had been “pretty heedless of the legal lines” regarding the purchase and importation of powerful drugs like sodium thiopental. It was as if “because this was death-penalty related, it was somehow exempt from all the normal rules,” Mr. Berenson said. “As a legal matter that was not true.”

States sometimes took remarkable measures to obtain the drugs, the documents suggest.

Georgia prison officials were clearly growing antsy last summer as their supply of thiopental neared expiration and a shipment from England lay stalled for weeks in Memphis. Customs agents had detained the package pending inspection by the Food and Drug Administration. By July 6, a corrections official sent a terse e-mail message to a colleague asking, “Any word?”

The response: “We got word but not the ‘good’ word.” The shipment was still held up. “I continue to track the package several times each day.” So officials explored a new tactic: instead of going through the usual channels of ordering the drug through a Georgia health care company and a local pharmacy, might the British company simply send the drug directly to the department?

The owner of Dream Pharma, a wholesaler run out of the back room of a driving academy’s offices in London, replied “I am more than happy to assist.” Matt Alavi, the owner, also warned that a certain carrier is “very stringent with US customs.” A Georgia corrections official approved the deal — “Yes. Make it happen” — with instructions to seek a supply with long expiration dates, and the drugs were soon winging their way to the United States.

This approach might well have broken federal drug laws, said John T. Bentivoglio, a former associate deputy United States attorney, in a February letter to Mr. Holder on behalf of a Georgia death row prisoner, Andrew Grant DeYoung. The Drug Enforcement Agency seized Georgia’s drugs last month, and earlier this month Kentucky and Tennessee turned over theirs as well.

“I think it’s quite reasonable to expect a state criminal justice agency like departments of corrections to abide by federal law,” Mr. Bentivoglio said in an interview.

Other documents show close cooperation among the states. A California road trip that brought sodium thiopental from Arizona to San Quentin emerged in nearly 1,000 pages of documents released by the A.C.L.U. of Northern California late last year. They showed e-mails from Scott Kernan, under secretary for operations for California’s Department of Corrections and Rehabilitation, telling aides of a “secret and important mission,” and warning that it was “very political and media sensitive.” Mr. Kernan sent a thank-you note to Charles Flanagan, the deputy director of Arizona’s Department of Corrections, that read, “You guys in AZ are life savers,” adding, “by you a beer next time I get that way.”

When Arizona ordered its own shipment in September, documents show that the state worked closely with Customs and Food and Drug Administration officials to prevent the kind of delays that plagued Georgia, and made sure that the port of entry was Phoenix, where their own broker could help. The shipments were labeled as being for veterinary use, which lawyers for the prisoners argue was intended to get the drugs lighter regulatory scrutiny.

And:

Douglas A. Berman of Ohio State University, an expert on sentencing and punishment, says it is something more than a mere inconvenience to the process. “This mess is a speed bump,” he said, “but one that does raise serious issues about the death penalty.” The bigger issue beyond what he called the “Keystone Kops” fumbling of state officials is what the incidents say about the temperamental nature of what death-penalty abolitionists call the “machinery of death.”

Doug Berman is the proprietor of the Daily Must-Read, Sentencing Law and Policy blog, noted in the left column weblog.

Earlier lethal injection coverage begins with news items from South Dakota and Georgia.  Related posts are in the lethal injection index.

Ohio Executions

Ohio carried out its third execution of 2011.  It was the state's second execution using only the drug pentobarbital. 

"Ohio on track to break execution record," is the AP report, via the Canton Repository.

Ohio is on track to break a record for the number of death row prisoners executed in a calendar year after the successful lethal injection of a two-time murderer for the 1989 death of a fellow Cincinnati jail inmate.

Clarence Carter, 49, was executed Tuesday at the Southern Ohio Correctional Facility for fatally beating Johnny Allen Jr. at the Hamilton County jail. He was the second inmate in the nation killed using the surgical sedative pentobarbital as a stand-alone execution drug.

He was the third Ohio inmate executed this year, keeping up the state’s pace of one inmate per month. Monthly executions are scheduled through October, a rate that would break last year’s record of eight inmates killed in one year since Ohio resumed executions in 1999 after a 33-year hiatus. It also would be the highest number of executions since 1949, when 15 inmates were killed.

The execution was sparsely attended, a possible sign that a procedure that has sparked controversy is now largely considered commonplace.

Carter’s brother witnessed the event, along with one of his attorneys and two reporters, as well as Ohio prisons staff.

The two reporters present were the fewest number of news media to attend an execution event since 1999, said Larry Greene, a spokesman at the prison.

Prisons director Gary Mohr said that, despite the little media attention, each execution is a “significant event.”

And:

Carter was the 44th inmate executed since 1999.

The Ohio execution was the 12th in the nation in 2011; the 1,246th post-Furman execution in America since 1977.

To date, Texas has carried out two executions this year; 466, since 1982.  According to TDCJ, six executions are curretnly scheduled in Texas.  More are likely to be added later this year.

The South Dakota Drug Purchase

The AP reports, "Attorney general says purchase of drug helps South Dakota in death penalty appeals."  It's written by Chet Brokaw and is via the Greenfield Daily Reporter.

South Dakota recently bought a scarce lethal injection drug partly to help fight against appeals by the state's two death row inmates, Attorney General Marty Jackley said Tuesday.

The purchase of sodium thiopental at least settles the question of whether the state would have the sedative in the event executions are set for the two men, although other issues remain in the appeals that challenge the constitutionality of the lethal injection process, Jackley said.

"One of the bases for the state to obtain the drug at this time, even though there's no execution date scheduled, is not only the existence of the shortage, but to take that issue out of the litigation," Jackley said.

The attorney general announced last week that South Dakota paid $5,000 for 500 grams of sodium thiopental, enough to carry out the execution of the two death row inmates. He has not said where the drug was obtained.

And:

Both South Dakota death penalty cases have long and complicated histories. The South Dakota Supreme Court upheld both men's convictions and sentences in their direct appeals, but both have pursued secondary appeals.

A federal court appeal by Donald Moeller argues that the state did not follow proper procedures in setting its execution method. Moeller also contends the execution method violates the constitutional ban on cruel and unusual punishment, partly because drugs obtained from foreign sources not approved by federal agencies could be flawed and cause pain during the execution.

The other death row inmate, Charles Russell Rhines, also is challenging South Dakota's method of execution. Rhines, 54, convicted of killing 22-year-old Donnivan Schaeffer during a 1992 burglary of a Rapid City doughnut shop, has appeals tied up in both state and federal court.

Also:

A federal judge has rejected Moeller's arguments that mistakes were made in his trial, and that part of his case is now pending in a federal appeals court.

However, the second part of Moeller's appeal remains in federal court in South Dakota, where he has asked a judge to prevent his execution because of constitutional flaws in the state's execution scheme.

Moeller's court-appointed lawyer, Deborah Ann Czuba of the Federal Public Defender's Office in Little Rock, Ark., said Tuesday she cannot comment on pending cases.

But in a proposed amended complaint filed in federal court March 16, Czuba argues South Dakota has not followed required procedures for setting execution rules, has given prison officials too much discretion in setting the execution method, has not obtained federal Food and Drug Administration approval to use sodium thiopental, and has no federal prescription for the drug.

A sedative obtained from a foreign source might be flawed, which would leave Moeller conscious to suffer excruciating pain when the second two drugs are used to stop his breathing and heartbeat, the appeal says.

The state has asked U.S. District Judge Lawrence Piersol of Sioux Falls to throw out Moeller's challenge to the lethal injection process because state officials argue new safeguards will keep a condemned inmate from feeling any pain when the death-inducing chemicals are delivered.

"The state's position is it's constitutional," Jackley said.

The attorney general the state will make sure the sedative is effective and of high quality.

"We've obtained the drug. We'll keep legal custody of the drug. We'll appropriately test the chemical properties of the drug,'" Jackley said.

The drug also could be provided to others to conduct their own tests, he said.

Earlier coverage from South Dakota's lethal injection drug purchase begins at the link.

Maryland Court Rejects Pre-Trial Challenge to Law

"Top Md. court throws out appeal by prisoner facing death penalty," is the title of  Andrea F. Siegel's  report for the Baltimore Sun.

Less than a week after getting its first look at Maryland's new death penalty law, the state's highest court threw out a pretrial appeal Tuesday by a prisoner who is charged with murdering a correctional officer.

The order came four days after courtroom arguments in which an assistant attorney general asked the Court of Appeals to dismiss the bid by prisoner Lee Edward Stephens in the fatal stabbing of David McGuinn, a 42-year-old correctional officer.

In the ruling, the judges appear to agree with Assistant Attorney General James E. Williams, who argued that Stephens' appeal was premature. Stephens has not yet been tried in McGuinn's July 2006 homicide at the Maryland House of Correction, where Stephens, 31, and his co-defendant were then serving life sentences.

"Our argument was this was not allowed by law — it is not a final judgment," said Raquel Guillory, spokeswoman for the Attorney General's Office.

An Anne Arundel County judge had refused Stephens' request for a hearing on whether prosecutors have evidence that could meet the stringent restrictions that legislators enacted in 2009 in the death penalty law.

The changes limit prosecutors' authority to seek execution for first-degree murder convictions to killings in which there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

But, Williams had argued, they say nothing about a judge's deciding before the trial whether the evidence qualifies for a death penalty case. With rare exceptions, appeals do not start until after a verdict.

"The state made a large point that of the fact that this was not an appealable order," said H. Stephen Hut Jr., whose Washington law firm of Wilmer Cutler Pickering Hale and Dorr has been helping Stephens' attorneys. "It was not an insignificant part of the argument last Friday. … It is a disappointment, but is not a shock at all."

The Maryland Court of Appeals ruling in Stephens v. Maryland is available in Adobe. pdf format.

Earlier coverage of the challenge begins at the link.

Connecticut Repeal Bill Passes Judiciary Committee

"Repeal Of Death Penalty Clears Key Legislative Committee, is the title of Daniela Altimari's report for today's Hartford Courant.

The legislature's judiciary committee Tuesday endorsed a bill to repeal the state's death penalty statute, setting up a battle over the future of capital punishment.

The committee's approval was expected and came after nearly two hours of discussion.

Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, hailed the vote, saying it brings Connecticut a step closer to eliminating a failed public policy.

The measure, which needs approval from both the House and the Senate, would replace the death penalty with a sentence of life in prison without the possibility of release. The House will take it up first.

This marks the second time in three years that lawmakers have considered repealing the death penalty. In 2009, both chambers passed a similar bill but it was vetoed by Gov. M. Jodi Rell. Her successor, Gov. Dannel P. Malloy, is an opponent of the death penalty and has said he will sign a repeal bill should one reach his desk.

Supporters of the repeal listed a number of reasons why Connecticut should join Illinois, New Jersey and New Mexico in abolishing the death penalty.

They cited the enormous amount of time it takes to execute a prisoner in this state, the painful toll that endless appeals take on the families of murder victims, instances of racial bias in implementing the death penalty and the fact that a mistake can lead to the execution of an innocent person.

"Death penalty repeal bill approved by Judiciary Committee," by Jacqueline Rabe for the CT Mirror.

Against the backdrop of the brutal Cheshire home invasion case, the legislature's Judiciary Committee Tuesday approved a bill that would abolish the death penalty--but only for future crimes.

Opponents argued that the prospective nature of the bill--it would eliminate the death penalty only for murders committed after it takes effect--is a tacit acknowledgment that some crimes are so horrific that only execution is a suitable punishment.

Several members cited the 2007 attack on the Petit family of Cheshire, in which a mother and her two daughters were murdered. Dr. William A. Petit was badly beaten, but survived and has become an outspoken proponent of capital punishment.

One of the attackers has been sentenced to death; the other is about to go on trial. Neither would be affected by the repeal bill.

But supporters of repealing the death penalty said the measure would avoid execution of innocent people and save the state the expense of years--sometimes decades--of trials and appeals.

The justice system "is not infallible. It is not perfect," said Sen. Eric Coleman, D-Bloomfield and co-chairman of the Judiciary Committee. He added that the $3.4 million the state spends each year related to enforcing the death penalty is "very costly."

But Sen. John A. Kissel, R-Enfield, whose district includes Northern Correctional Institution where the 10 current death row inmates are housed, said there will always be crimes "so horrific" where death is the only "appropriate" punishment.

And:

Lawmakers on both sides of the aisle agree that the current capital punishment law is not working. Since the U.S. Supreme Court reinstated the death penalty in 1976, only one person has been executed in Connecticut: Michael Ross, who voluntarily suspended all appeals in his case.

However, they disagreed on the remedy.

"I think the only real answer here is to fix this" law, said Rep. Themis Klarides, R-Derby, an opponent of repeal.

Rep. Gerald M. Fox, D-Stamford and co-chairman of the Judiciary Committee, said the constitutional safeguards built into the law are meant to ensure only those guilty are put to death.

But those safeguards, he said, make "a workable death penalty" almost impossible. So, he said, the only alternative is to have the maximum penalty be life in prison.

The proposal -- which was voted out of the judiciary committee 26-17 -- now heads to the state House of Representatives, where it is also expected to pass. The vote in the state Senate is expected to be close.

The AP report is, "Bill to repeal death penalty passes key committee vote," via the Day.

The state lawmaker leading the effort to repeal Connecticut's death penalty says the bill has received enough votes to clear a key legislative committee.

The Judiciary Committee acted on the proposal Tuesday, sending it to the House of Representatives.

New Haven Democratic Rep. Gary Holder-Winfield says he's optimistic the legislation, which replaces capital punishment with life in prison without the possibility of parole, will pass in the House.

Opponents of the bill hope to strip the repeal provision in the House and instead pass language streamlining the death penalty appeals process.

Earlier coverage from Connecticut begins at the link.

Tennessee Supreme Court Rules on Mental Retardation Standard

The ruling in Coleman v. Tennessee is in Adobe .pdf format.

"Supreme Court Defines Parameters for Expert Testimony Surrounding Intellectual Disability in Death Penalty Cases," is the Supreme Court's case summary.

The Tennessee Supreme Court today ruled that expert testimony may be considered when determining whether a person facing the death penalty is intellectually disabled. Under Tennessee law, persons with intellectual disability (formerly referred to as “mental retardation”) cannot be executed.

In the post-conviction appeal of death-row inmate Michael Angelo Coleman, the Court found that state law does not require I.Q. scores to be accepted at their “face value”. Instead, the courts may consider expert testimony to determine whether the score accurately reflects the defendant’s functional I.Q. The Supreme Court remanded Mr. Coleman’s case to the trial court for further proceedings to determine if he meets the definition of intellectual disability.

In order for a person to be found to be intellectually disabled, the Tennessee statute requires a functional intelligence quotient of seventy (70) or below and deficits in adaptive behavior. Additionally, the intellectual disability must have been manifested before the age of 18. However, the Court pointed out that the law does not articulate the types of evidence that may be considered.

“While a person’s I.Q. is customarily obtained using standardized intelligence tests…the statute does not provide clear direction regarding how a person’s I.Q. should be determined and does not specify any particular test or testing method that should be used,” Justice William C. Koch, Jr. wrote for the Supreme Court.

Mr. Coleman was convicted of the 1979 murder committed during the robbery of a Memphis man on his way to the grocery store.

In his post-conviction appeal, Mr. Coleman argued that the post-conviction trial court and Court of Criminal Appeals incorrectly concluded that he did not meet the statutory definition of intellectually disabled.

In today’s unanimous ruling, the Supreme Court found the lower courts erred by failing to consider the testimony of two expert witnesses indicating Mr. Coleman is intellectually disabled. The Court also determined the lower courts incorrectly treated Mr. Coleman’s intellectual disability and mental illness as two separate causes of his adaptive limitations.

Upon remand, the State, which did not present any counter testimony at the post-conviction hearing, may challenge the admissibility of the expert testimony and present testimony to counter the methods of Mr. Coleman’s expert witnesses.

In his post-conviction appeal, Mr. Coleman also argued that he received ineffective counsel during his trial because his attorney failed to investigate or present mitigating evidence. However, the Supreme Court agreed with the lower courts that Mr. Coleman’s ineffective counsel claims are procedurally barred because his motion to re-open his post-conviction petition falls outside of the statute of limitations and his claim does not satisfy one of the exceptions outlined in the statute.

Today's Tennessean carries the AP report, "TN Supreme court says IQ test not enough in death penalty cases."

Tennessee judges can no longer rely on a standard IQ test score to see if a prisoner is too intellectually challenged to be executed.

The Tennessee Supreme Court ruled on Monday that testimony from mental health experts should also be considered to see whether a prisoner is intellectually disabled.

Tennessee law bars the execution of intellectually disabled people. An IQ test score of 70 or below is one of several factors that determine whether a prisoner is intellectually disabled.

However, the court said experts were needed to see if the test score accurately reflects the defendant's functional IQ.

 Lawrence Buser writes, "Tennessee Supreme Court rules death row inmates get broader scope to argue intellectual disability," for the Memphis Commercial Appeal.

The Tennessee Supreme Court ruled today that lower courts may look at more than IQ numbers in determining whether a death row inmate is intellectually disabled and thus ineligible for execution.

In ruling on the case of a Memphis man on death row for more than 30 years, the high court said judges also may consider expert witness opinions to determine whether a test score accurately reflects a person’s functional IQ.

“We find that (state law) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated,” Justice William Koch Jr. wrote in the court’s unanimous opinion.

The case of Michael Angelo Coleman now returns to Shelby County Criminal Court for further review by Judge W. Mark Ward.

Prosecutors and defense attorneys also will be allowed to present additional witnesses if they choose.

And:

Under Tennessee law, mental retardation, now termed intellectual disability, means significantly below-average intellectual functioning with a functional intelligence quotient of 70 or below; deficits in adaptive behavior, and the intellectual disability must have been manifested by age 18.

The Supreme Court, however, said the law does not indicate what types of evidence may be considered and said there is no requirement that IQ scores be accepted at their face value.

The court said the lower courts should have considered testimony from two defense psychologists who said Coleman is intellectually disabled.

The Memphis Daily News carries, "IQ Use in Death Penalty Ruled On," written by Bill Dries.

The trial court and an appeals court held that Watson’s score on an intelligence quotient test, or IQ test, made the case for imposing the death penalty. The court and the law use “intellectual disability” to refer to a set of disabilities that affect how a person functions and the disabilities usually originate at or near birth.

The Tennessee Supreme Court disagreed and remanded the case for a rehearing on Coleman’s intellectual ability.

“We have determined that the plain language of (Tennessee law) does not limit to raw test scores the evidence regarding whether a criminal defendant is a person with intellectual disability,” wrote Justice William C. Koch Jr. in the opinion.

The court ruled Tennessee legislators were clear in making the law different than laws in other states that make the IQ test score the basis for the death penalty.

“Ascertaining a person’s IQ is not a matter within the common knowledge of laypersons. Expert testimony in some form will generally be required to assist the trial court in determining whether a criminal defendant is a person with intellectual disability,” Koch wrote, adding the trial court isn’t required to follow the opinion of an expert but must give it “full and fair consideration.”

“Our interpretation of (state law) is consistent with the current clinical approach to the diagnosis and assessment of intellectual disability and with current practice reflected in a number of Tennessee cases where the parties themselves have taken issue with the validity and weight of raw scores of intelligence tests.”

Related posts are in the mental retardation index.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  As noted before, mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Oklahoma Lethal Injection Legislation

Today's Tulsa World reports, "Bill on lethal-injection drugs goes to Gov. Fallin."  It's written by Barbara Hoberock.

The Oklahoma Senate on Monday sent Gov. Mary Fallin a measure that would adjust the language of the state's lethal-injection law.

The law dealing with administration of the death penalty specifies the drug types to be used in lethal injections. But a shortage of one of the drugs has resulted in some delays in executions. Sodium thiopental is used to render the condemned inmate unconscious.

House Bill 1991 by Rep. Dan Sullivan, R-Tulsa, removes the specific drugs to be used from the law governing executions.

The new language reads that the death penalty "shall be carried out by the administration of a lethal quantity of drug or drugs until death is pronounced by a licensed physician according to accepted standards of medical practice."

The state ran out of sodium thiopental in early 2010 and turned to pentobarbital, which is used for animal euthanasia.

Sen. Anthony Sykes, R-Moore, said the new drug combination has already been vetted in court. He is the Senate sponsor of HB 1991, which passed by a vote of 42-3.

Sen. Constance Johnson, D-Oklahoma City, was joined by Sen. Judy Eason McIntyre, D-Tulsa, and Sen. Jim Wilson, D-Tahlequah, in voting against the measure.

Johnson said she is against the death penalty, adding that it does not save money or deter crime. She said that as a Christian country, residents believe in forgiveness.

"Bill Changing Execution Drugs Heads To Oklahoma Governor," is th eAP filing, via KOTV-TV.

Prison officials in Oklahoma would have broad authority to change the lethal drugs used to execute inmates under a bill that is heading to the governor's desk.

The Senate on Monday voted 42-3 for the bill that authorizes the Department of Corrections to use a lethal quantity of any "drug or drugs" when the state carries out the death penalty.

Existing law requires the department to use an "ultrashort acting barbiturate in combination with a paralytic agent," but prison officials say that law could pose a problem if they need to change the formula.

Earlier lethal injection coverage from Oklahoma begins at the link.

Georgia Examines Lethal Injection Drug Options

"Georgia Considers Execution Drug Switch," is the title of Greg Bluestein's AP report.  It's via WAGA-TV in Atlanta.

Georgia prison officials are laying the groundwork to swap out a key sedative used for lethal injections after federal regulators took the state’s stockpile of sodium thiopental that is in short supply nationwide, according to more than 1,000 pages of documents reviewed by The Associated Press.

State Department of Corrections officials met with counterparts in Ohio and Oklahoma, two states that have already used another drug, pentobarbital, to execute inmates. They have also collected hundreds of pages of legal filings and other documents about the use of pentobarbital in those states, according to files obtained through an open records request.

The trips came a week after the U.S. Drug Enforcement Administration took Georgia’s supply of sodium thiopental over questions whether the state circumvented law to get it. The move effectively blocked Georgia from scheduling and carrying out any executions.

Rob Jones, the legal counsel for the department, said Monday that there’s no timetable on a switch and that the final decision would come from Brian Owens, the department’s commissioner. Officials were still researching to find the “best way to carry out this procedure in the most humane way possible.”

Georgia would be the fourth state to switch to pentobarbital, a surgical sedative that’s also commonly used to euthanize animals. Oklahoma, Ohio and Texas have already switched, and Arizona and Mississippi said they were planning on it.

The documents include hundreds of pages of court records, legal rulings, expert witness statements and testimony from cases in Oklahoma and Ohio. State policymakers are also reviewing independent data, including a 2010 medical study on the impact of pentobarbital on patients suffering from brain trauma and a 2008 law review article that details how sodium thiopental works.

And:

Oklahoma uses pentobarbital as part of a three-drug combination while Ohio uses a single dose of the drug to execute inmates.

The trove included some data that didn’t refer to pentobarbital as well. One document was a 2010 report from the Oregon Public Health Division on a state law that allows terminally ill patients to get lethal doses of prescription drugs from their physicians. Someone highlighted a line in the report that noted two of the patients who took the medications did not immediately die.

Many of the nation’s 34 death penalty states have scrambled over the last year to find a new supplier of sodium thiopental since its sole manufacturer in the U.S. stopped making the drug. Several states postponed executions and some have looked overseas to secure a supply.

Georgia’s stockpile of sodium thiopental—believed to be around 20 grams, enough for at least four executions—has been under scrutiny since corrections officials released documents that said the state bought the drug from Dream Pharma, a company in London that has the same address as the Elgone Driving Academy.

Defense attorneys call it a fly-by-night pharmacy, and critics say Georgia may have failed to properly register with the DEA before importing a controlled substance. The firm hasn’t responded to several email and phone calls seeking comment.

Jones said Monday the department has not yet heard back from the DEA.

Earlier lethal injection coverage from Georgia begins at the link. 

Related posts are in the lethal injection index.  Relevant posts include:

• Call for DoJ Investigation in Georgia Drug Acquisition
• More on the British Import
• Lethal Injection Roundup
• Questions Surround British Drug Used in Georgia Execution
• UK Source of Drug Revealed
• The FDA and Lethal Injection Drugs

Ineffective Assistance of Counsel

Michael Kiefer writes, "High court to address issue of lawyering," for the Arizona Republic.

Daniel Cook was scheduled to die by lethal execution last Tuesday morning in Florence for murdering two men in 1987. Cleve Foster was scheduled for execution that same evening in Huntsville, Texas, for a 2004 murder. But in the eleventh hour, the U.S. Supreme Court stayed the executions of both men.

The issue: how to address claims that their convictions and death sentences arose out of bad lawyering.

Cook represented himself at trial and failed to bring up serious issues from his childhood that might have influenced his sentence. Foster's attorney at trial failed to engage an expert who might have tipped a jury toward acquittal. Then, the lawyers who handled their appeals failed to present those claims adequately.

Last Monday, the U.S. Supreme Court issued an opinion in the case of a California man whose appellate attorneys tried to introduce new evidence into federal court. The high court batted him down, ruling that evidentiary matters must be restricted to state courts where guilt and innocence are decided.

And three weeks ago, the high court accepted yet another related case in which an Alabama court denied appeals to a death-row inmate who missed a procedural deadline because notice was sent to the wrong address.

The Supreme Court takes only cases it feels will answer legal questions that face the nation as a whole. Its decisions then set legal precedent. As for Cook and Foster, the Supreme Court stayed their executions until it decides whether it will consider hearing those cases. Or they could be resolved by a decision in the Alabama case. After a death sentence is imposed, it goes automatically to a state Supreme Court for review, and if it is affirmed there, it goes directly to the U.S. Supreme Court in what is called a direct appeal. All other appeals are voluntary.

The next stop is back to the trial court for "post-conviction relief." In Arizona and 22 other states, this is the first point at which questions can be raised about whether the lawyer did everything he or she could have done to represent the client in trial.

There is a dearth of lawyers to represent defendants in the initial post-conviction procedures.

"Isn't a defendant entitled to a competent lawyer?" asked Michael Meehan, a Tucson lawyer representing Cook.

Perhaps not: The Sixth Amendment guarantees the right to competent counsel in trials, but there is no right to an attorney while seeking post-conviction relief.

The flurry of cases before the Supreme Court may answer Meehan's question.

Related posts are in the ineffective assistance of counsel index.

The High Cost of a Tennessee Capital Case

The Sunday Knoxville News Sentinel carries a lengthy article, "Probe, prosecution of Christian-Newsom slayings had hefty price tag."  It's reported by Jamie Satterfield.

One of Knoxville's most horrific crimes is likely to go down in the record books as one of the state's most expensive prosecution efforts.

It is difficult to pin a price tag on the investigation of the January 2007 torture-slayings of Channon Christian, 21, and Christopher Newsom, 23, and resulting prosecutions. Some figures - jury expenses, expert witnesses, defense bills, for example - are readily available, and they tally more than $1.1 million so far. Others, including the man-hours expended by teams of local, state and federal agents, are impossible to quantify but are sure to exceed the costs ever incurred in any other single investigation.

And:

KPD employed its Special Operations Squad, and the Knoxville branch of the Marshals Service assigned its entire fugitive squad to take down accused ringleader Lemaricus Davidson, who was hiding in a vacant house in Mechanicsville, and his convicted helper, Eric Boyd.

Eventually, the manhunt for the couple's killers led to Lebanon, Ky., where law enforcers from the Kentucky State Police, local police there and the Kentucky branch of the Marshals Service joined in. KPD, KCSO and the ATF sent agents there. Then-Sheriff Tim Hutchison employed his agency's helicopters in the Kentucky hunt for suspects Letalvis Cobbins, George Thomas and Vanessa Coleman.

All of that cost money - lots of it.

But no one can say just how much.

"Nobody quantifies (the law enforcement side of a case)," noted Susan Shipley, a Knoxville attorney who is a veteran of capital murder defense work.

Law enforcers in this case say it is simply impossible to try.

"There's no way," said Martha Dooley, KCSO spokeswoman for Sheriff Jimmy "J.J." Jones, when presented with the News Sentinel's request for information on the office's work in the case.

KPD spokesman Darrell DeBusk had a similar reaction.

"Nearly every unit of the department was utilized at some point in the investigation," DeBusk said.

And:

The feds likewise can't quantify how much manpower was devoted to the first phase of what would be a three-year prosecution effort that's still not over.

But if trial testimony is any indication, there easily could have been more than 100 law enforcers in two states involved in the initial effort to round up suspects and start building a case. And with annual salaries for those lawmen and women ranging from roughly $37,831 for a crime scene technician to $52,352 for a patrol sergeant, the cost of the law enforcement arm alone easily could be in the hundreds of thousands.

And that was just the beginning.

Follow the link to read this journalistic must-read.  Related posts are in the cost index.

Lethal Injection Roundup

"What’s in a Lethal Injection ‘Cocktail’?" is Pam Belluck's article for the Sunday New York Times Week in Review section.

THE latest controversy over the always controversial subject of capital punishment: the drugs used to execute people on death row.

Lawyers for death row inmates in Texas and Arizona have filed challenges to the executions questioning the use of specific drugs in the lethal injection of their clients. (Last week, the Supreme Court stayed the executions for other reasons.)

These challenges have been prompted by a shortage of one of the drugs, sodium thiopental, an anesthetic. The American manufacturer of sodium thiopental, Hospira, recently announced that it would no longer produce the drug, and manufacturers in Europe do not want to supply the drug if it will be used in executions. Some executions have been postponed while states try to sort out the drug situation.

In Texas, which carries out more executions than any other state, the controversy is focused on the proposed switch from sodium thiopental to pentobarbital in a three-drug cocktail.

What is the difference?

The two drugs come from the same family: barbiturates, drugs that depress the central nervous system. So, in general, said Dr. John Dombrowski, director of the Washington Pain Center and a board member of the American Society of Anesthesiologists, “it’s like if you ask me what’s the difference between Johnnie Walker Blue, Black and Red — they’re all scotch.”

But sodium thiopental has been commonly used as an anesthetic in hospitals. Pentobarbital has a few medical uses in humans, but is often used by veterinarians to anesthetize or euthanize animals. It has also been used in physician-assisted suicide in Oregon and in Europe.

When injected into the bloodstream, both drugs “cross the blood-brain barrier very efficiently,” said Dr. Scott Segal, chairman of the department of anesthesiology at Tufts Medical Center in Boston. “They get into brain tissue itself.”

Within the brain tissue, on the surface of the neurons, he said, are receptors that respond to a neurotransmitter called gamma-aminobutyric acid, or GABA.

“GABA is an inhibitory receptor, meaning that stimulation of the GABA receptor reduces firing of neurons,” Dr. Segal said, depressing the brain’s electrical activity.

Both drugs stimulate these GABA receptors.

“All barbiturates put the brain to sleep by slowing down brain function,” said Dr. Mark A. Warner, president of the American Society of Anesthesiologists. “The brain cells that drive the desire to breathe are also suppressed. So any barbiturate, if you give enough of it, somebody quits breathing. Also, if you give enough of it the heart quits pumping as hard and that can cause decreased blood pressure.”

But while the way the drugs work might be similar, the effects are different.

Sodium thiopental is used in hospitals because it “has a relatively fast onset and it doesn’t last long,” Dr. Warner said. “You want a patient to go sleep and wake up pretty quickly.”

Pentobarbital is a long-acting drug.

“If veterinarians are using this, they don’t really care if an animal wakes up faster or not,” Dr. Dombrowski said. “If the dog or cat is still a little sleepy it doesn’t make a difference.”

In euthanizing animals, higher doses are used, and “the lethal effect is a cardiovascular effect,” Dr. Segal said, meaning that it stops the heart.

At California Watch, Ryan Gabrielson posts, "State's lethal injection drug passes lab tests."

The California Department of Corrections and Rehabilitation’s supply of a key lethal injection drug is lab-certified as sterile and sufficiently potent.

Prison officials sent off a share of their sodium thiopental for testing in January to confirm the drug was manufactured properly. The department purchased 521 grams of the anesthetic in October from an obscure pharmaceutical wholesaler in London.

With the reassuring results (report embedded at bottom), perhaps the lone remaining concern about California’s supply is whether it will fall within an expanding federal inquiry. The U.S. Drug Enforcement Administration is investigating how officials in Georgia, Kentucky and Tennessee imported sodium thiopental, the first of a three-drug cocktail that renders condemned inmates unconscious.

Federal agents have taken possession of imported lethal injection drugs from the three states, the Associated Press reported. Sodium thiopental is in extremely short supply in the United States, prompting some states to share their reserves, or to purchase the drug from overseas.

The latter scenario is becoming the new norm for prison systems that rely on that specific anesthetic. But anti-death penalty groups and condemned inmates have raised questions about whether the imported drug meets U.S. quality control standards.

If the drug does not work as intended, inmates would likely experience extreme pain, violating their Eighth Amendment rights against cruel and unusual punishment.

And:

No matter how it arrived at San Quentin State Prison, analysis records released this week show the sodium thiopental meets quality standards. The lab report states that pharmacological potency of tested doses was 93.7 percent, with acceptably low levels of heavy metals and impurities.

The redacted document is in Adobe .pdf format.  Earlier lethal injection coverage from California, as well as information about the imported drug, and DEA seizure, at the links.  Related posts are in the  lethal injection index.

More Commentary on John Thompson's Case

The Gazette-Mail of Charleston, WV carries the editorial, "Injustice: Railroaded victim."

Sometimes, America's criminal justice system -- police, prosecutors, courts, prisons -- doesn't see accused suspects as human beings, but just as scumbags to be locked away as quickly as possible. This attitude can cause cruel outcomes. In extreme cases, police and prosecutors actually frame the innocent.

In 1963, the U.S. Supreme Court decreed that when prosecutors have evidence tending to prove the innocence of a suspect, they're honor-bound to inform the defense. But sometimes they violate this mandate and hide evidence. An ugly case recently produced a disturbing outcome in the Supreme Court. Here's the saga:

Down in Louisiana in 1985, John Thompson was convicted of murder and sentenced to death. He spent 18 years in prison. Execution dates were set for him seven times.

Eventually, it was learned that Thompson was innocent. First, one of his prosecutors, on his deathbed, told a fellow prosecutor he had hidden a blood sample and test results showing that the murderer's blood type didn't match Thompson's. The fellow prosecutor concealed this confession for five more years.

Other hidden evidence: An eyewitness identification of the killer didn't match Thompson's appearance, but the defense wasn't told. An informant who fingered Thompson did so to get a reward from the victim's family, but again the defense wasn't told.

Altogether, five assistant prosecutors knew about this concealment. Their elected chief prosecutor was politician-lawyer Harry Connick Sr., father of the famed singer-actor-composer. The prosecutor's office had a record of hiding such exculpatory evidence, and Connick once was indicted by federal agents for the practice.

Syndicated columnist Jim Brown's, "Supreme Court’s betrayal of justice," is via Houma Today of Louisiana.

There is an aura of myth that surrounds Lady Justice, who is pictured standing tall with the balanced scales of justice in her hands. She is blindfolded to assure impartiality and fairness. But if she read the decision about the death row inmate from New Orleans that was handled down by the U.S. Supreme Court last week, one could only wonder whether she dropped her scales, pulled off her blindfold, and wept.

And:

With full justification, Thompson sued the prosecutor’s office in New Orleans for ripping away and stealing 18 years of his life. He had two sons that he never saw grow up. A New Orleans jury awarded him 14 million dollars. Some said it was too much money. Would you give up 18 years of your life in solitary confinement on death row for 14 million dollars? On appeal, the Fifth US Circuit Court of Appeals, reputedly the most pro prosecutorial circuit in the nation, upheld the award in favor of Thompson.

But a bitterly divided Supreme Court said to Thompson “no way.” In a 5-4 decision, his case was tossed out by the Supreme Court– not because they disagree that the prosecutor’s office hid evidence (in fact all 9 justices agree on that point). Instead they tossed the case because, in their divine judicial opinion, they didn’t see any “pattern” of the prosecutor’s office doing this to other people besides Thompson (because one life ruined is apparently not enough). Sounds like a John Grisham novel with a bad ending, right? If only that were so. Unfortunately, this is real life and John Thompson gets nothing for his 18 years in jail. Not a red cent. Tough luck fella. The system failed you, but “stuff happens.”

Hartford Courant columnist Colin McEnroe posts, "Death Penalty Tale," at the Connecticut paper's website.

John Thompson's essay should be mandatory reading, no matter what your position is on the death penalty.

To me it is:

a. an answer to the people who say there are too many appeals, that the the death penalty takes too long and costs too much. So Thompson should have been dead after three appeals?

b. a reminder that cases are not always as ironclad as the Petit murders. Energized by that story and the often fetishistic press coverage of it, pro-death-penalty sentiment seems to be rising here in Connecticut. People who support the death penalty because of their revulsion at the crimes of Hayes and Komisarjevsky should understand that it may not always be applied in such clear-cut circumstances.

Thompson's New York Times OpEd is noted in the preceding post.