The StandDown Texas Project

NPR Examines Use of Psychological Assessment Tool

The NPR report by Alix Spiegel is, "Can A Test Really Tell Who's A Psychopath?"  Here's an excerpt from this must-read: 

Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.

Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born.

"In those days, social factors, environmental factors were the explanation for all crime," Hare says. "When you're born, you're a blank slate, and I can train you to be anything you want — a doctor, a dentist."

Hare, for one, didn't fully buy this. He thought inborn personality was important. He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.

"We have individual differences in intelligence," Hare says. "Well, we should have individual differences in the personality traits that are responsible or related to crime."
Robert Hare, the psychologist who created the PCL-R test for psychopaths, at first resisted giving the checklist to people in the criminal justice system. But he ultimately agreed to publish the test officially so anyone could use it.

Hare set out to dissect the personality traits that might predispose people to criminality. To do this, he recruited the help of inmates at a prison some 30 miles down the road from his office at the University of British Columbia.

"The offenders in those days had hardly ever been studied," Hare says, "and they were very interested in what I was doing. They would all volunteer. And in fact, one of the head inmates there — the one at the top of the heap — actually held a public address (because in those days they could congregate in groups of four or five hundred) and said, 'Look, this sounds interesting, I'm in.' And then everybody else said, 'I'm in, too.' "

Hare set up a lab and started pumping out studies on the prisoners.

And:

Ultimately, this work led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse.

"It's sort of like trying to explain to a colorblind person what the color red is," Hare says. "Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but the person will never quite get it."

The NPR series is a topic of a post at  the Forensic Psychologist blog post, "PCL-R inventor wringing his hands over forensic misuse."

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

    While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

    "I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

    In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

    "I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

    “ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

NPR has also assembled, "Expert Panel: Weighing The Value Of A Test For Psychopaths," by Patrick Waters.

Many psychologists believe that psychopaths are almost bound by nature to commit crime. So if psychopaths can be accurately identified, their menace to society can be contained. That's the hope, at least.

But there is real debate about how to diagnose a psychopath and the usefulness of the tools available to do it. A test developed by psychologist Robert Hare called the Psychopathy Checklist-Revised, or PCL-R, is widely used in the criminal justice system -- before trial, during sentencing and even in parole and death-penalty decisions -- to evaluate a person's psychopathic tendencies.

Some psychologists believe the PCL-R is a critical tool in predicting which offenders pose the greatest risk. Others see the test as too vulnerable to human bias and question its place in the criminal justice system. We asked three experts in the field of forensic psychology to weigh in.

The individual essays are:

• Masking Bias With Science by Karen Franklin
• Identifying The Bad Apples by Henry Richards
• An Unreliable And Stigmatizing Tool by John Edens

Related posts are in the mental illness and expert witnesses indexes.

A Profile of Jeanne Woodford

"Jeanne Woodford: ardent foe of the death penalty," is the title of Kevin Fagan's San Francisco Chronicle profile.

As she made her way up Market Street the other day on a tea break from her new job as head of the most prominent anti-death penalty organization in California, Jeanne Woodford strode slowly, shoulders hunched. Stylish in a collarless black pantsuit hung loosely around her slight frame, she emanated none of the toughness that a prison guard adopts to deal with hard-case inmates.

But a look into those brown eyes reveals the steel that made her one of the first female cellblock guards at San Quentin State Prison, the first female warden there in 1999, and then head of California's prison system from 2004 to 2006.

The steel is in a gaze so steady her head barely moves as she bores in on even slight points of conversation. And it's in her carefully delivered, low-toned voice, the kind that demands attention from across a room.

It's easy to see why Woodford earned a reputation as a guard who could stop fights with her words alone, and never had to swing her baton - even though she says she preferred running counseling sessions to staffing a gun tower.

And it's easy to see how she was able to give the orders at four executions for her staff to begin pumping deadly chemicals into a condemned man's veins, even as she longed to work one day to make sure nobody else would ever have to give those orders again.

That day came May 12, when Death Penalty Focus announced her appointment as executive director.

And:

"I am anything but soft on crime," she said. "I absolutely think people should be accountable for their crimes. But executing people is not the right way.

"It's totally about retribution, and that serves no one."

Earlier coverage of Woodford begins at the link.

Genetics & Violence

Arizona Republic columnist E.J. Montini writes, "Eventually, science will kill capital punishment."

We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene."

I'm pretty sure we didn't want to know. We wanted him dead.

Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.

"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.

He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior.

"Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."

For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty.

"There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.

The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young.

"At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."

The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.

And:

The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.

Related posts are in the forensics and mental illness indexes.

Supreme Court Lifts Cleve Foster Stay

"High court lifts hold on Texan's execution," is the title of the AP report, via Forbes.

The Supreme Court has lifted its hold on the execution of a Texas man convicted in the shooting death of a woman in 2002.

The court's order Tuesday frees the state to set a new execution date for Cleve Foster, who was hours away from receiving a lethal injection in April when the high court stepped in.

Foster's appeal raised claims of innocence and poor legal help during his trial and early stages of his appeals.

The Supreme Court ist of orders, issued this morning, is available in Adobe .pdf format.

Earlier coverage of Cleve Foster's case begins at the link.

Humberto Leal

SA Current, San Antonio's alt-weekly, features, "Illegal injections: How Texas is breaking the law, one execution at a time," written by Michael Barajas.  Here's the beginning of this lengthy examination of the case with its tangled issues:

In the early hours of May 21, 1994, 16-year-old Adria Sauceda and dozens of others attended a raucous Southside house party on Vincent Street, where witnesses reported seeing a dazed Sauceda — pumped full of alcohol, cocaine, and marijuana — pulled to the backyard. There she was stripped and circled by eight or nine men, each “taking turns” on the disoriented teenager. Friends who came to her aid were told to shut up, drink, and quit spoiling the party.

Later that morning, Humberto Leal, Jr. showed up, furious about what had happened to Sauceda, according to witnesses. He insisted on taking the girl home, saying she was a neighbor of his. Hours after Leal drove off with the victim in his father’s 1977 Mercedes, police found the girl’s naked and beaten body in a field just yards away from the house. She had been repeatedly raped, lastly with a crude wooden plank, and bludgeoned to death.

The account of that tragedy, pulled from hundreds of pages of trial transcripts and case files, is complex and, Leal’s defense now claims, filled with holes. Leal has always claimed he left the party with the victim that drunken night, and admitted to police he may have accidentally killed her during an alcohol-fueled fight on the side of the road. But for over a decade, Leal has denied he ever kidnapped or raped the victim.

But Leal’s imminent execution is now entangled in a controversy that has dogged the administrations of two U.S. presidents. Set to die by lethal injection this summer, the execution of the Mexican national flies in the face of international law, the wishes of the Mexican government, and even the U.S. Supreme Court. Leal, born in Monterrey, Mexico, is one of 50 Mexicans sitting on death row who have been charged, tried, and sentenced to die without gaining access to Mexican consular officials — a clear violation of a long-standing international treaty that protects thousands of Americans arrested abroad each year.

Leal’s lawyers claim the lack of access to the Mexican consulate sabotaged his case from the start, equipping him with a hopelessly inadequate defense team that failed to challenge the case against him. A review of the trial, they say, reveals a shoddy investigation that left more questions than answers in the wake of Sauceda’s brutal 1994 slaying.

While denied a retrial and, as of yet, the ability to re-test a crucial piece of evidence that secured his conviction, Leal’s lawyers say a judicial review, as requested by numerous U.S. and Mexican officials, would give the case a fair shake and flush out any uncertainty that still looms over the investigation into the teenager’s tragic murder.

Leal has a July 7th execution date.

Related posts are in the foreign citizen index.

Lethal Injection Roundup - News From Nebraska & Arizona

In Nebraska, today's Lincoln Journal Star reports, "Supreme Court issues stay of Moore's execution."  It's written by Kevin O'Hanlon.

The Nebraska Supreme Court on Wednesday issued a stay of the June 14 execution of death-row inmate Carey Dean Moore.

Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, asked for the stay while a Douglas County District Court judge considers a motion he filed challenging the purchase of one of the three lethal-injection drugs.

District Judge Thomas Otepka has given Soucie until June 7 to respond to a brief submitted by J. Kirk Brown, solicitor general in the attorney general's office, saying Moore's appeal is without merit.

Soucie also is challenging Nebraska's lethal-injection law, which was passed in 2009 after the Nebraska Supreme Court ruled the electric chair amounted to cruel and unusual punishment.

Soucie said lawmakers unconstitutionally allowed the Department of Correctional Services to set a lethal-injection protocol and exceeded their authority by passing a law that changed Moore's sentence from death by electrocution to lethal injection.

Brown said Moore's conviction and sentence have been affirmed and "absent a factual circumstance whereby the judgment is void or voidable under the state or U.S. constitution, the court has no jurisdiction" to grant a stay.

Soucie is challenging the legality of Nebraska's purchase from an Indian company, Kayem Pharmaceutical Pvt. Ltd., of one of the drugs and is questioning whether the state even bought the right substance.

Soucie said Nebraska law does not allow the state to obtain lethal-injection drugs from sources not registered with the Food and Drug Administration and the Drug Enforcement Administration.

The state's lethal-injection protocol calls for using sodium thiopental. Soucie said it appears the state might have bought a generic version of the drug, which is not called for in the lethal-injection protocol.

"Moore execution postponed," is the Omaha World-Herald report written by Robynn Tysver.

A debate over the quality of a death drug from India has bought convicted Nebraska killer Carey Dean Moore more life.

After 30-plus years of appeals, Moore won a stay of execution Wednesday from the Nebraska Supreme Court. It was his sixth stay.

He did so, in part, by raising objections to the drug meant for his lethal injection. Moore argues that the sodium thiopental that Nebraska purchased from a Mumbai company fails to comply with U.S. pharmaceutical standards.

“We don’t know whether the drug is any good or not, because it was not manufactured in compliance with American pharmacuetical standards. And you can’t test anyone without breaking the law,” said Jerry Soucie, Moore’s attorney.

It is unclear how long resolving Moore’s latest appeals will take, though the case could return to the Nebraska Supreme Court — and eventually end up in federal court.

The state is reviewing its options, said Shannon Kingery, spokeswoman for Attorney General Jon Bruning.

No one has died by the needle in Nebraska since state lawmakers scrapped the electric chair for lethal injection in 2009. Moore’s appeals give the courts their best chance yet to review the lethal injection law.

Moore is the longest-serving of Nebraska’s 11 death-row inmates.

"Arizona inmate put to death by lethal injection," by JJ Hensley and Jim Walsh in the Arizona Republic.

An emotional Donald Beaty used his last words to apologize to the family of his victim, 13-year-old Christy Ann Fornoff, moments before he was put to death by lethal injection Wednesday at Arizona State Prison Complex-Florence.

And:

Beaty was pronounced dead at 7:38 p.m., more than nine hours after his execution had initially been scheduled. When the lethal drugs were injected, Beaty almost immediately appeared to go sleep, letting out a large yawn.

Beaty's execution had been delayed for most of the day Wednesday as his defense team tried to challenge the Arizona Department of Corrections' decision to substitute pentobarbital for sodium thiopental in the state's execution-drug formula.

Eight hours of legal debate took place in three cities - Phoenix, Washington, D.C., and San Francisco - before appeals were exhausted and final preparations were made for the execution.

In arguing for a stay, Beaty's attorneys said more time was needed to determine if the last-minute drug substitution, which was announced late Tuesday, would infringe on Beaty's constitutional rights or constitute cruel and unusual punishment.

They also suggested that corrections officials should have taken more time to train executioners in the use of pentobarbital, since it was not a part of the state's existing execution-drug protocol. One filing called the last-minute change "unconscionable."

Those arguments were first made before the Arizona Supreme Court on Wednesday morning, but the state's high court rejected them several hours later after meeting on the matter behind closed doors. Rejections continued throughout the afternoon: first in U.S. District Court, then twice at the 9th U.S. Circuit Court of Appeals. Meanwhile, the U.S. Supreme Court rejected two other legal arguments put forth to block the execution.

In the end, the courts recognized the state's right to substitute pentobarbital for thiopental. One judge noted during oral arguments that pentobarbital already had been reviewed by other courts and approved for executions.

Arizona Attorney General Tom Horne, meanwhile, called the daylong delay a "slap in the face" to the Fornoff family.

By 6 p.m., however, prison officials were cleared to proceed with the execution after the U.S. Supreme Court declined to consider further appeals.

Beaty's execution was the first in Arizona to use a pentobarbital mix; it was the state's second execution this year.  To date, Arizona has carried out 26 executions since 1992.  It was the 19th execution in the nation this year; the 1,252nd post-Furman execution in the United States.

Earlier coverage from Arizona and Nebraska begins at the links.

Arizona Supreme Court Lifts Execution Stay

That's the breaking news headline from the Arizona Republic.  The report is written by Jim Walsh.

The Arizona Supreme Court on Wednesday considered briefly an appeal by convicted murderer Donald Beaty's last-minute arguments, then lifted the stay, paving the way for Beaty's execution by lethal injection in Florence.

Beaty, 56, had been scheduled to die at 10 a.m. Wednesday at Arizona State Prison Complex-Florence for the 1984 murder of 13-year-old newspaper carrier Christy Ann Fornoff in Tempe. However, he received a temporary reprieve late Tuesday so the high court could consider whether a change in the drugs to be used in the lethal injection should force a lengthier legal review.

The court heard less than an hour of arguments on the matter Wednesday morning before going behind closed doors to deliberate. It issued the ruling to lift the stay less than two hours later.

The justices later ruled 4-1 to lift the stay, with the majority saying Beaty's lawyers hadn't proved he was likely to be harmed by the change.

Meanwhile, a federal judge in Phoenix refused to block the execution. And the U.S. Supreme Court declined to consider two petitions filed on behalf of Beaty.

The request for a stay was prompted by the state's announcement Tuesday that it would substitute pentobarbital for sodium thiopental in the three-drug cocktail to be used in Beaty's execution. The substitution was made at the request of the U.S. Department of Justice, which determined that the state's supply of thiopental had been imported without proper paperwork.

Beaty's lawyers argued in their hastily-drafted appeal late Tuesday that "the state has failed to notify him of the new protocol with sufficient time for him to review the protocol, as well as his medical records, to determine whether there are any concerns with the new drug." They asked the court for more time to review the change, thereby allowing the Arizona Department of Corrections to train personnel in using the new drug while the court determines if the new process "comports with constitutional protections and guarantees."

"We just haven't had time to get an expert to look at this," attorney Jennifer Garcia of the Federal Public Defender's Office told the court Wednesday. "I think the issue here is a due process issue of notice."

Of particular concern in any drug protocol is assuring that the manner of execution does not constitute cruel and unusual punishment.

"A rush to execute Beaty under these circumstances would be unconscionable," his lawyers wrote in their appeal.

The Arizona Attorney General's Office, however, said neither state law nor Beaty's death warrant "require the use of a specific drug to carry out Beaty's execution." Furthermore, they said the protocol recognizes that the corrections director may from time to time have reason to approve deviations from existing procedures.

"The use of pentobarbital as a substitute for sodium thiopental has been upheld by every court that has addressed the issue," attorneys for the state wrote. They said "that minor variation does not establish that ADC will be using a 'new protocol' and 'new methods' to carry out (Beaty's) execution, much less that he is sure or very likely to experience severe pain or needless suffering."

"Courts refuse to block Arizona execution," is the title of Paul Davenport's AP report, via Beaumont Enterprise.

State and federal courts on Wednesday denied requests by inmate Donald Beaty to block his scheduled execution because of a last-minute replacement of one of three execution drugs.

The Arizona Supreme Court lifted a temporary stay that it issued late Tuesday after Beaty's lawyers objected to the state's announcement of the drug swap.

The justices later ruled 4-1 to lift the stay, with the majority saying Beaty's lawyers hadn't proved he was likely to be harmed by the change.

Meanwhile, a federal judge in Phoenix refused to block the execution. And the U.S. Supreme Court declined to consider two petitions filed on behalf of Beaty.

Beaty was sentenced to death for the 1984 murder of 13-year-old Christy Ann Fornoff, of Tempe.

His lawyers objected to the planned drug switch that the state announced 18 hours before the now-passed scheduled execution time of 10 a.m. Wednesday.

The Arizona court issued the temporary stay Tuesday night after Arizona officials said they had planned to replace sodium thiopental with another sedative, pentobarbital, because federal officials contended the state failed to fill out a form to import a supply of the drug being swapped out.

Beaty defense attorney Jennifer Garcia said Beaty didn't object to using pentobarbital but that the last-minute switch denied his lawyers an opportunity to determine whether the new drug would be properly administered and avoid subjecting him to severe pain inflicted by another execution drug if the sedative isn't effective.

Earlier coverage begins at the link.  The Arizona Supreme Court ruling, with a dissent, is available in Adobe .pdf format.

Ohio Paper Calls for Clemency in Shawn Hawkins Case

"Too many questions surround the murder conviction of Shawn Hawkins. The governor should commute his death sentence to life without parole," is the title of an editorial in today's Akron Beacon Journal.

On May 12, the Ohio Parole Board issued a rare recommendation. Seven members unanimously advised the governor to grant executive clemency in the case of Shawn Hawkins, who sits on death row, convicted in 1989 of murder in the shooting deaths of two men in Cincinnati. Now John Kasich must act on the advice, halting the execution scheduled for June 14, commuting the death sentence to life in prison without parole.

The parole board hardly has the reputation of a soft touch. It still ''does not doubt that Shawn Hawkins was involved in this horrific killing of two young men.'' What the board found in examining the record is that ''many aspects of the Hawkins conviction are troubling.'' It reached the conclusion that it ''is not confident in the death sentence.''

Worth stressing, again, is the irreversible quality of the death penalty. Once the lethal injection takes place, there is no room for correcting errors or making amends. Thus, a state must take extraordinary care in capital punishment, narrowing the possibilities of commiting a grievous mistake.

And:

Without question, evidence points squarely at Hawkins, in particular, a bloody fingerprint. Yet, as the parole board rightly held, the issue isn't so much whether Hawkins was involved but the necessary confidence in the death sentence. The criminal justice system has demonstrated its capacity for mistakes. One important check is the clemency power of the governor, a last stand for serving justice.

The governor would do well to consider also the person Shawn Hawkins has become in prison, still connected to his family, involved in classes and community service projects. This isn't a case that should proceed to an execution. Too many uncertainties exist, as a unanimous parole board found.

On Saturday, AP writer Andrew Welsh-Huggins posted, "Gov. John Kasich: Considerable doubt in death row case."  It's via the Coshocton Tribune.

Gov. John Kasich hinted Friday he might consider clemency for a condemned killer of two scheduled to die in June, saying there was "considerable doubt" about the case.

Attorneys for Shawn Hawkins have raised questions about the evidence that sent him to death row, and the Ohio Parole Board recommended this month Kasich spare Hawkins. In the three previous executions Kasich has allowed to proceed, the parole board recommended against clemency.

Asked about Hawkins and clemency at a news conference, Kasich said he was taking a close look at the case.

"I believe there is considerable doubt," he said before stopping himself and saying he wasn't going to discuss it further.

Kasich then added one thing is always clear when he discusses executions with Ohio prison officials: "We are not going to go forward with an execution where we are not certain."

Hawkins' lawyer said he was pleased Kasich was seeing the same doubt observed by the parole board.

"We're hopeful that Gov. Kasich, after the careful consideration we know he will give the case, will exercise clemency to save the life of Shawn Hawkins," said attorney Anthony Covatta.

Earlier coverage of the Hawkins case begins at the link.

DOJ Tells Arizona it Illegally Obtained Death Penalty Drug; Execution Stayed

That's the headline from ABC News.  The report is written by Ariane De Vogue.

Hours before the scheduled execution of an Arizona death row inmate, the Department of Justice informed the state that it should not use a controversial drug as part of the execution protocol because the state had illegally obtained the drug from a foreign source.

The last-minute move stunned lawyers for convicted murderer Donald Beaty who had argued for months that Arizona hadn't been in compliance with federal law regarding the importation of sodium thiopental, one of the three drugs commonly used for lethal injection executions . The drug is no longer manufactured in the U.S.

The chief judge of the Arizona Supreme Court issued an unusual late night order delaying the execution.

Arizona had consistently argued that it had properly obtained the drug.

In a filing with the Arizona's Supreme Court the state's Attorney General said that it in order to "avoid questions about the legality " of the drug it had decided to comply with the request from United States Associate Deputy Attorney General Deborah A. Johnston.

In the filing it said it planned to substitute another fast-acting barbiturate—pentobarbital—for the sodium thiopental. Arizona law allows it to change its protocol without hearings and legislative review required by some other states?

Long before the surprise announcement from Arizona's prison, Dale Baich, Beaty's public defender, had contacted the Department of Justice seeking guidance why the Drug Enforcement Agency (DEA) had seized the drug from five other states this year but not Arizona.

The DEA seized the imported drug from Alabama, Georgia, Kentucky, South Carolina and Tennessee informing prison officials that it believed they had failed to follow federal importation laws. But the agency it did not seize the drug from Arizona and four other states who had also obtained the drug from abroad.

And:

After the announcement Baich said, "The question of whether Arizona legally imported the drug has now been answered."

Also:

"In order for states to import controlled substances such as Sodium Thiopental, the importer has to file a declaration with the DEA that shows a DEA approved importer, that the importer has a proper DEA registration number and provides an explanation of where the drugs are coming from and why," says Natasha Minsker, director of the ACLU of Northern California's Death Penalty Policy Program.

She says that her group filed a freedom of information request with the DEA for Arizona's import declarations and received nothing that would show the drug was properly imported.

"Arizona's eleventh-hour switch to another execution drug is unconscionable," says Minsker. "Rather than rushing to change the rules to carry out an execution, we all should be asking why state and federal officials failed for months to follow or enforce the law. The DEA and the Arizona Department of Corrections have known for months that Arizona possessed illegal sodium thiopental. Yet, they waited until hours before a scheduled execution to act, and then only because the illegal conduct was brought into the light of day by lawsuits and public pressure. A death penalty in any state that disregards both federal law and basic concepts of fairness makes a mockery of justice in our whole country."

The Department of Justice refused to comment on the case, or explain why it believes that Arizona properly imported the drug.

According to one of the DEA documents obtained by the ACLU, Mark Caverly, chief of the liaison and policy section of DEA's Diversion Control, laid out the agency's policy . In a letter to the Washington State Penitentiary, Caverly wrote: "Any person seeking to import a controlled substance into the United States must obtain a DEA registration… and utilize the services of a DEA registered importer. DEA has no authority to waive a statutory requirement."

"Arizona Supreme Court stops scheduled execution for inmate," is the AP report via the Arizona Republic.

The Arizona Supreme Court has halted the planned execution of inmate Donald Beaty, who was scheduled to be given a lethal injection Wednesday morning for the rape and murder of a 13-year-old Tempe girl in 1984.

The temporary stay of execution was issued late Tuesday night after Arizona officials said they had planned to replace one of three drugs to be used in the execution because federal officials contended the state failed to fill out a form to import the drug being swapped out

That prompted Beaty's lawyers to file motions seeking the stay of execution from the state's highest court and the U.S. District Court in Phoenix, arguing he hadn't had adequate opportunity to review the late change in drug protocol.

Defense attorney Dale Baich said "a rush to execute Beaty under these circumstances would be unconscionable."

The court set a hearing on the matter for Wednesday morning.

The attorney general's office notified the state Supreme Court on Tuesday that the Corrections Department would replace sodium thiopental with another sedative -- pentobarbital.

The state's filing said the Corrections Department was making the swap because a U.S. Justice Department official told the state the Drug Enforcement Administration believes the Corrections Department "failed to fill out one of the forms necessary for importation of sodium thiopental from a foreign source."

Defense lawyers for Arizona death row inmates for months have questioned whether the state legally imported its supply of sodium thiopental. State officials previously acknowledged a miscoding on an importation form but insisted they acted legally in obtaining a supply of sodium thiopental from a British supplier last year.

"The question of whether the Department of Corrections legally imported the drug has now been answered," Baich said before the temporary stay was granted.

Several other states have already switched to pentobarbital because sodium thiopental is in short supply nationally, and state Corrections Director Charles Ryan has said previously that Arizona planned to switch to that drug also.

The Arizona Supreme Court's order is available in Adobe .pdf format.  Earlier lethal injection coverage from Arizona begins at the link.  Related posts are in the lethal injection index.

I'll update with a new post as developments warrant

Richard Florida on the Crime Rate

"Don't Fear the City: Urban America's Crime Drops to Lowest in 40 Years," is the title of his post at the Atlantic.  Florida is the Director of the Martin Prosperity Institute at the University of Toronto.

The long-held image of violent, crime-filled cities permeates popular culture. Thanks to TV shows, rap music, and a deep-seated antipathy to cities that has been apparent in some political and cultural quarters since at least the nineteenth century, countless Americans continue to perceive big cities through the lens of 40-year-old movies like Taxi Driver and The Out of Towners -- as cauldrons of crime, filth, and corruption (and magnets for immigrants, gays, Jews, intellectuals, and other "disreputable" minorities).

The past couple of decades have seen a powerful back-to-the-city movement that has transformed many once-notorious districts into residential quarters and high-end shopping districts. Times Square, a byword for crime and urban decay, has become a Disney-like tourist magnet, and parts of Herald Square, the heart of NYC's feared Tenderloin district a century ago, have been closed to traffic and filled with tables and chairs. Clearly something must be happening with urban crime. Crime -- both property crime and violent crime -- is down to its lowest level in 40 years, especially in America's biggest cities, according to newly released data from the FBI's annual Uniform Crime Report.

And:

Even more striking is the trend in violent crime, which is also down substantially in big cities. These crimes against people, which include murder, forcible rape, robbery, and aggravated assault, fell 5.1 percent in big cities with more than 1 million people. That's better than the decline for the smallest communities, with populations under 10,000 (4.3 percent), and only slightly off the national average.

The report notes that law-enforcement agencies provide the figures voluntarily and cautions against making city-to-city or agency-to-agency comparisons, which could "lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting communities and their residents." Nor does the report venture any guesses as to the cause of the downward trend.

But one factor frequently cited by criminologists is demographics. Crimes are more likely to be committed by young people, so the crime rate drops when the cohort of young people shrinks, as it has in the past few years. Better policing surely helps too, as has urban revitalization, which is bringing relatively prosperous singles, couples, families, and empty nesters into neighborhoods that had been in decline in years past, improving neighborhood quality and safety. We'll be taking a closer look at the social, geographic, demographic, and economic factors associated with crime across America's cities in a future post.

News coverage of the FBI report is in the preceding post; related posts are in the crime rates index.

Violent Crime's Downward Trend

The FBI released its Preliminary Annual Uniform Crime Report, 2010, yesterday. 

"Steady Decline in Major Crime Baffles Experts," is the report in today's New York Times.  It's written by Richard Oppel Jr.

The number of violent crimes in the United States dropped significantly last year, to what appeared to be the lowest rate in nearly 40 years, a development that was considered puzzling partly because it ran counter to the prevailing expectation that crime would increase during a recession.

In all regions, the country appears to be safer. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States. Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year.

And:

Criminology experts said they were surprised and impressed by the national numbers, issued on Monday by the Federal Bureau of Investigation and based on data from more than 13,000 law-enforcement agencies. They said the decline nationally in the number of violent crimes, by 5.5 percent, raised the question, at least in some places, of to what extent crime could continue to fall — or at least fall at the same pace as the past two years. Violent crimes fell nearly the same amount in 2009.

“Remarkable,” said James Alan Fox, a criminologist at Northeastern University. “Given the fact that we have had some healthy declines in recent years, I fully expected that the improvement would slow. There is only so much air you can squeeze out of a balloon.”

There was no immediate consensus to explain the drop. But some experts said the figures collided with theories about correlations between crime, unemployment and the number of people in prison.

Take robbery: The nation has endured a devastating economic crisis, but robberies fell 9.5 percent last year, after dropping 8 percent the year before.

“Striking,” said Alfred Blumstein, a professor and a criminologist at the Heinz College at Carnegie Mellon University, because it came “at a time when everyone anticipated it could be going up because of the recession.”

Nationally, murder fell 4.4 percent last year. Forcible rape — which excludes statutory rape and other sex offenses — fell 4.2 percent. Aggravated assault fell 3.6 percent. Property crimes — including burglary, larceny, motor vehicle theft and arson — fell 2.8 percent, after a 4.6 percent drop the year before.

The AP report is, "FBI: 5.5 percent drop in violent crime," by Pete Yost.  It's via CBS News.

Crime levels fell across the board last year, extending a multi-year downward trend with a 5.5 percent drop in the number of violent crimes in 2010 and a 2.8 percent decline in the number of property crimes.

Year-to-year changes released Monday by the FBI in its preliminary figures on crimes reported to police in 2010 also showed declines in all four categories of violent crime in 2010. All categories for property crime went down as well.

"In a word, remarkable," said James Alan Fox, a criminologist at Northeastern University. In Fox's view, the declines signify success for aggressive law enforcement and corrections programs and comprehensive crime prevention efforts. He said the crime levels could easily rise if the current environment of state and local budget cutting extends to law enforcement measures that are working.

Some experts are puzzled.

Expectations that crime would rise in the economic recession have not materialized. The size of the most crime-prone population age groups, from late teens through mid-20s, has remained relatively flat in recent years.

"I have not heard of any good explanations for the good news we've been experiencing in 2009 and 2010," said professor Alfred Blumstein of Carnegie Mellon University's Heinz School of Public Policy. "I hope the trend continues and I'm going to keep searching for answers."

Violent crime last increased in 2005. Property crime last increased in 2002.

The FBI reported that violent crime fell in all four regions of the country last year — 7.5 percent in the South, 5.9 in the Midwest, 5.8 percent in the West and 0.4 percent in the Northeast.

The bureau's preliminary statistics for 2010 are based on data from more than 13,000 law enforcement agencies nationwide.

Nationally, murder and non-negligent manslaughter declined 4.4 percent, forcible rape decreased 4.2 percent, robbery declined 9.5 percent, and aggravated assault was down 3.6 percent.

Related posts are in the crime rates index.  Commentary on the latest survey, in the next post.

More on a Crime Victim's Philosophy

"Immigrant inspires with forgiveness for killer," is the title of the Dallas Morning News editorial.  It appeared in the Saturday issue.

The capacity for compassion and forgiveness can reach almost unbelievable proportions.

The post-9/11 shooting spree by Mark Stroman was a predatory act of ghastly viciousness. To a Dallas County jury, the two lives that Stroman took demanded a sentence of death by injection.

But to a shooting victim who survived — a man who was targeted because of the color of his skin — the violence was a moment of confused, misguided hatred.

It’s time for the hate to stop, says Rais Bhuiyan, a native of Bangladesh.

With his attacker set to die in Huntsville this summer, Bhuiyan has begun a quiet campaign to spare the man’s life.

We wish to give that campaign voice. It delivers a potent message to a nation still torn by the loss of 9/11. It resists the cycle of revenge that doesn’t stop until someone has the courage to say enough.

That’s Bhuiyan’s message: enough. He attributes his conviction to his Islamic faith and his willingness to forgive. Ironically, it was that religious faith that Stroman targeted when he started staking out shopkeepers he assumed to be believers in Islam after Sept. 11, 2001.

And:

Overcoming ignorance and pain, he says, is vital if the nation wants to heal.

That is thoroughly American optimism. Our nation should embrace it regardless of the country and religious faith it comes from.

In this campaign, Bhuiyan is not out to abolish the death penalty (a penalty this newspaper believes should end because it can’t be reliably, evenly applied). His campaign is not about revamping the justice system. It’s more personal than that.

Bhuiyan hopes to meet with Dallas County District Attorney Craig Watkins and Gov. Rick Perry — both supporters of the death penalty — to press the case for sparing his attacker’s life. An uphill quest? Yes. But this country wasn’t built by newcomers with modest dreams.

Earlier coverage of Bhuiyan's mission is at the link.  Related posts are in the victims' issues index.

In Arizona

Today's Arizona Republic carries, "Proof needed on imported lethal drugs," by Dale A. Baich, with the Federal Public Defender for the District of Arizona.

The Arizona Department of Corrections intends to execute Donald Beaty this week with imported drugs.

For the past eight months, the ADC has asserted that it followed the law when it imported the drugs used for executions. At best, these claims are inaccurate.

Since September 2010, we have sought documentation from ADC that would assure not only our clients, but also the courts and the people of Arizona, that ADC complied with federal law when it imported execution drugs.

In response to our repeated requests, ADC has steadfastly refused to share virtually any information and instead has essentially repeated, "We did it right. Trust us."

However, public documents have repeatedly demonstrated that ADC did not comply with federal law when it acquired the lethal-injection drugs. And ADC still has not produced documents to prove that it imported the drugs legally.

Last week, our concerns were validated when we received documents from the Drug Enforcement Administration that reveal that another state's request to import drugs was denied by the DEA because that state's registration did "not permit the importation of controlled substances as a primary or coincident activity." ADC holds the same type of registration as that other state.

It's time for ADC to stop saying "trust us." It's time for the people of Arizona to say, "Show us."

"Arizona inmate attempts to halt his Wednesday execution," is the Republic news article, written by Michael Kiefer.

An Arizona inmate on Sunday demanded that his Wednesday execution be halted and the Arizona Supreme Court be disqualified from his case because of a death-row tour by the justices. The prisoner also cited their meetings with the Arizona Department of Corrections director to discuss execution schedules and methods while they were considering his case.

Donald Beaty, 56, is scheduled to die by lethal injection for the 1984 murder of a 13-year-old newspaper carrier in Tempe.

Beaty notified his attorneys at the federal Public Defender's Office that several of the justices had participated in a tour of his cellblock on May 11, which the attorneys confirmed by filing a public-records request with the Corrections Department.

In letters signed by corrections Director Charles Ryan, the attorneys learned that on April 13 Ryan met with Chief Justice Rebecca White Berch and Justice Andrew Hurwitz to discuss scheduling of executions. Ryan sent a copy of the letter to Assistant Arizona Attorney General Kent Cattani, who represents the state and the Department of Corrections in executions. On April 19, the court issued a warrant of execution for Beaty.

Then, in a May 11 letter to Gov. Jan Brewer, Ryan detailed how he had taken four of the justices, including Berch, on a tour of the prison complex in Florence, including visits to death row and the execution chamber. At the time, the high court was considering motions related to Beaty's impending execution. The motions were subsequently denied.

The motion filed Sunday by U.S. Assistant Public Defender Sarah Stone characterizes the meetings as ex parte communications, that is, meetings with a judge by parties from only one side of the case without the knowledge of the other side. Such communications are forbidden by judicial rules.

Furthermore, Stone wrote, it put the judges in the role of investigators, which is also forbidden by judicial rules, especially for appellate judges like the justices, who are supposed to rule only on pre-existing facts and records of a case and not try defendants as a trial-court judge would.

Stone asked that the justices stay the execution and turn the case over to a new panel of judges to reconsider the various motions, which included requests to examine whether Beaty was denied effective assistance of counsel during his early appeals. A similar motion is in front of the U.S. Supreme Court; that court did stay the last scheduled execution in Arizona for those reasons.

The AP report is, "Attorneys still trying to halt execution," via KTAR-AM.

Lawyers for an inmate set to be executed this week want the Arizona Supreme Court to withdraw his death warrant because the justices toured death row and met with prison officials.

Court papers filed Sunday also ask the entire five-member high court to step away from the case and appoint a panel of judges to hear Donald Beaty's appeals.

Beaty's lawyers wrote in their court filing that Chief Justice Rebecca White Berch and Justice Andrew Hurwitz met with Arizona Department of Corrections Director Charles Ryan last month to discuss execution scheduling and protocols. Four justices toured two prisons and the death chamber May 10.

Defense lawyers say they were not invited and found out about the visits from Beaty. They argue the visits and discussions were improper because the justices were considering their client's case at the time, and defense attorneys were not allowed to participate. Lawyers for the state were notified of the meetings.

The court filings call the meetings ``ex parte communications'' that are barred under court rules because judges are expected to rule only on information in the formal record. Defense attorneys argue the justices should recuse themselves from the case to avoid an appearance of impropriety.

Supreme Court spokeswoman Jennifer Liewer declined to comment, saying the high court does not discuss pending matters.

The state's top death penalty prosecutor, Kent Cattani, said in an email Sunday that there was no improper communication between the judges and Ryan because Ryan is not a party to the case. He said the discussions between Ryan and Berch were to go over scheduling and were not improper communications. Cattani said Ryan requested that executions be scheduled for midweek to minimize overtime.

And:

Late last week, federal public defenders filed a lawsuit accusing the Arizona Corrections Department of violating the state public records law by withholding requested records on the acquisition of execution drugs.

They argued in a court filing Thursday that they need the records ``to pursue appropriate remedies'' to the department's ``potentially unlawful behavior. The public defenders asked for quick consideration of the lawsuit but a judge denied that motion Friday without comment.

Beaty's attorneys then filed a new appeal Friday, asking the U.S. Supreme Court to block his execution.

Daniel Barr, a lawyer representing the public defenders office, said it wasn't immediately clear what would happen next in the records lawsuit.

The office's suit asked that the department be ordered to produce the requested records, which include communications with federal agencies and a customs broker. The defender's office, which represents death row inmates, contends Arizona may have illegally imported at least one execution drug.

State officials previously said they've acted legally in obtaining and using execution drugs.

Earlier lethal injection coverage from Arizona begins at the two links.

Georgia Announces Switch to Pentobarbital Mix

"State switches execution drug after US takes stockpile of sodium thiopental," is the title of Greg Bluestein's AP report, via Google News.

Executions in the state of Georgia could soon resume after prison officials decided to swap out a lethal injection drug that was surrendered to federal regulators, the corrections department said Friday.

The Georgia Department of Corrections will substitute pentobarbital for sodium thiopental, a drug that was in scarce supply nationwide even before Georgia's stash was taken by the Drug Enforcement Administration in March, said Robert Jones, the department's general counsel.

"We're confident it will be effective," Jones said of the pentobarbital, which would be used in combination with pancuronium bromide and potassium chloride. Jones said pentobarbital was picked because it's readily available throughout the U.S. and because several other capital punishment states have already adopted it.

"We await guidance and instruction from courts in Georgia," he said. "We stand ready to carry out those orders now."

Many of America's 34 death penalty states have scrambled to find a new supplier of sodium thiopental after Hospira Inc., its sole manufacturer in the U.S., said in January it would no longer make the drug. Several states postponed executions amid the shortage, and records reviewed by the Associated Press found that Georgia and at least six other states obtained sodium thiopental overseas.

Georgia's stockpile of the drug came under more scrutiny when corrections officials released documents in court that showed the state bought the drug from Dream Pharma in London. Defence attorneys call Dream Pharma a fly-by-night supplier that operates from the back of a driving school. The firm hasn't responded to repeated emails and phone calls seeking comment.

Georgia was forced to surrender its supply of sodium thiopental to the DEA amid questions about whether the prison officials circumvented the law to obtain the supply. The Georgia Attorney General's office said the move effectively halted executions in Georgia because corrections officials didn't have the necessary supplies to carry one out.

Switching to pentobarbital should allow the state to move ahead with the execution of Troy Anthony Davis, whose high-profile case has become a rallying point for opponents of the death penalty.

A slightly different version of the AP report, also by Bluestein, is, "Ga. to use different execution drug," via Forbes.

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 in court that showed the state bought the drug from Dream Pharma in London.

Defense attorneys call it a fly-by-night supplier that operates from the back of a driving school. The firm hasn't responded to repeated emails and phone calls seeking comment.

John Bentivoglio, who represents a condemned Georgia inmate, has said Georgia may have also failed to properly register with the DEA before importing a controlled substance. He said the violation means "adulterated, counterfeit or otherwise ineffective" sodium thiopental could be used in executions.

State officials say they don't have concerns about its quality.

"We have no concerns about the particular pharmaceuticals we used to carry out executions at all," Jones told the Associated Press. "They were appropriately packaged, appropriately labeled. We're confident also the state didn't break any criminal laws of any kind. It's a regulatory question, and the question was whether we had sent a letter to the DEA advising them we were importing from overseas."

He said that question is still under investigation. The Justice Department declined to comment on the probe.

Georgia officials have laid the groundwork for a switch for weeks. Corrections officials met with counterparts in Ohio and Oklahoma, which have already used pentobarbital to execute inmates. They have also collected hundreds of pages of legal filings and other documents about the drugs, and drafted several proposals for the switch, according to more than 1,000 pages of files reviewed by The Associated Press.

In the Atlanta Journal-Constitution, Bill Rankin writes, "Georgia switches lethal-injection drugs."

The Department of Corrections on Friday said it has approved a new drug for its lethal-injection procedure, clearing the way for the state to begin executing condemned killers once again.

The department will switch from sodium thiopental, which had been used for years, to the barbituate pentobarbital. Sodium thiopental is no longer manufactured in the U.S., and Georgia's supply was recently confiscated by the Drug Enforcement Administration, putting executions on hold.

Corrections spokeswoman Kristen Stancil said the agency does not currently have a supply of pentobarbital, but she said the drug is readily available and the agency is licensed to possess it.

"It's been proven effective in other states, and we've looked at extensive medical testimony concerning the drug," she said. Pentobarbital, a sedative, will be used as the first of three lethal-injections drugs, followed by pancuronium bromide, a muscle relaxer that stops breathing, and potassium chloride, which causes cardiac arrest.

There are no executions scheduled in Georgia, but execution warrants are expected to be signed soon.

Two death-row inmates -- Troy Anthony Davis and Andrew Grant DeYoung -- stand to be the first scheduled to be put to death by lethal injection. In March, the U.S. Supreme Court rejected the final appeals of Davis, sentenced to death for killing an off-duty Savannah police officer in 1989. On Monday, the high court turned away appeals from DeYoung, sentenced to death for killing his parents and 14-year-old sister at their Cobb County home in 1993.

"Victims of these horrendous crimes deserve to see justice and this to me appears to be a step forward in that direction," Douglas County District Attorney David McDade said. "I commend the state officials for resolving this problem."

Laura Moye of Amnesty International USA, said, "Whether the state uses chemicals, bullets or electricity, the death penalty is inherently cruel and inhuman, and is part of an error-prone system that has sent far too many innocent people to death row. Replacing the supply of sodium thiopental amounts to nothing more than rearranging the deck chairs on the Titanic."

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

An Update on Foreign-Sourced Lethal Injection Drugs

"Documents suggest few states properly registered lethal injection drug imports," is the title of Greg Bluestein's AP report, via the San Antonio Express-News.  It's also available from other news outlets.  It's datelined Atlanta.

Some of the states scrambling to import a lethal injection sedative in scarce supply failed to properly register with federal regulators before receiving the drug from overseas, according to emails released this week.

The Drug Enforcement Administration was only formally notified twice last year that sodium thiopental had been imported, according to a November 2010 email sent to the agency, even though 10 states received the drug from overseas manufacturers, or another state that got it from outside the U.S.

The emails were obtained Wednesday by the ACLU of Northern California. Many of them emails were heavily redacted by the agency, and the DEA did not release any further details. It wasn't immediately clear which state notified the DEA about the imports.

States must register with the DEA before importing a controlled substance and notify the agency when they receive it. Defence attorneys in Georgia and elsewhere have said breaking those rules could mean "adulterated, counterfeit or otherwise ineffective" drugs could be used in executions in violation of the ban on cruel and unusual punishment.

And:

The DEA took Georgia's stockpile of the drug in March after defence attorneys questioned whether the state properly registered with the DEA before importing it from London. Regulators have since taken stockpiles of the drug from Alabama, Kentucky, South Carolina and Tennessee. Arizona, Arkansas, California, Nebraska and South Dakota also received overseas shipments of the drug.

A Justice Department spokeswoman declined to comment on the probe.

The DEA documents suggested that the investigation ramped up in late March. An official on March 28 distributed an Associated Press article that documented the extraordinary — and legally questionable — methods prison officials took to obtain the drugs.

Above it was a note that urged the offices to "please do a check of said prisons in your area and see if they have now or in the past requested or received this drug via unauthorized means. Please attempt to confiscate any and all controlled substances."

Earlier coverage from Alabama and Georgia regarding the DEA actions begins at the links.  Related posts are in the lethal injection index.

Also, "Ala man executed for 4 dead in 1992 shooting spree," is the AP report via the Birmingham News.

An Alabama man was executed Thursday for the 1992 killing of four people during a shooting spree in which he said he was mentally ill and high on drugs and alcohol.

Corrections officials said 42-year-old Jason Oric Williams died at 6:19 p.m. CDT from a lethal injection administered at Holman Prison in Atmore.

Williams became the first person to die in Alabama's death chamber since the state switched to pentobarbital instead of sodium thiopental in its execution cocktail. The state switched drugs because of a nationwide shortage of sodium thiopental.

It was the 18th execution in the nation this year; Alabama's third execution in 2011.  It was the 1,252nd post-Furman execution in the United States.  Texas has also carried out three executions in 2011.  According to TDCJ, there are nine scheduled executions this year, including four set for next month.  More are likely to be added.

Senate GOP Filibusters Goodwin Liu

That's the title of Politico's breaking news coverage.  It's written by Meredith Shiner.

Senate Republicans staged the first successful filibuster of a judicial nominee since 2005 on Thursday, dealing a blow to the Obama administration on the long-stalled nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.

Only one Republican joined Democrats Thursday in supporting Liu, who needed 60 votes to break a filibuster. Meanwhile, 52 Democrats voted ‘yes’ to open debate on the 39-year-old University of California, Berkeley professor’s nomination. One Democrat voted no. The final vote was 52-43.

The filibuster will be met with disappointment from both progressives and Asian-American groups who advocated for Liu and hoped to see him seated on the Western court that covers a region of the country with a significant Asian-American population. Liu even received the support from some prominent conservative legal figures, including Ken Starr and John Yoo.

Some Democrats fear the blocked nomination will set a new precedent. During the George W. Bush administration, a bipartisan group of 14 senators agreed that they would vote to open debate on every judicial nominee that came through the Senate except for in “extraordinary circumstances.”

“If this is not an extraordinarily well qualified person, I don’t know who will be,” Sen. Dick Durbin (D-Ill.) said moments before the vote. “I’m afraid the phrase ‘extraordinary circumstances’ will suffer great damage by this action.”

Sen. Lisa Murkowski was the lone Republican to support Liu on Thursday.

"Judicial nominee Goodwin Liu blocked by Senate Republicans," is the initial Washington Post report by Paul Kane and Felicia Sonmez.

Setting a new precedent, Senate Republicans on Thursday blocked the nomination of President Obama’s nominee to a high-profile federal appellate court, formally reversing their past opposition to filibusters for judicial nominations.

On a 52-43 vote, law professor Goodwin Liu fell 8 votes short of the 60 needed to overcome the GOP filibuster to his nomination -- the first time ever that Republicans had successfully filibustered a judicial nomination. All but one Republican, Sen. Lisa Murkowski (R-Alaska), opposed ending debate on Liu’s nomination to the San Francisco-based U.S. Court of Appeals for the 9th Circuit.

The Liu nomination, even more so than Obama’s two picks for the Supreme Court in 2009 and 2010, prompted the full ideological rhetoric that has been commonplace in judicial nomination battles for the past 25 years.

Democrats praised Liu’s life story -- the son of Taiwanese immigrants who became a Rhodes scholar and Supreme Court clerk -- as an example of the American dream.

Republicans, however, excoriated Liu’s writings while serving as a law professor at the University of California at Berkeley, saying he adopted a legal standard of “empathy” that encouraged judges to try to view cases through the perspective of the people appearing before them rather than through a strict reading of the law.

And:

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) told reporters Wednesday that, should Liu be filibustered, it would fully reignite the battles over the federal bench and would assure that Democrats would do the same to the next Republican president’s nominees. “No good deed goes unpunished around here,” Leahy quipped.

Earlier coverage begins at the link.

Lethal Injection Roundup - News from Nebraska & Alabama

The Lincoln Journal Star reports, "Attorney general files opposition to request for delaying Moore execution."  It's written by Kevin O'Hanlon.

The Nebraska Attorney General's Office filed a response Wednesday opposing a request to postpone the June 14 execution of death-row inmate Carey Dean Moore.

Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, asked the state Supreme Court for the stay of execution Tuesday while a Douglas County District Court considers his motion challenging the state's purchase of one of the three lethal-injection drugs in its execution protocol.

Soucie also is challenging Nebraska's lethal-injection law, which was passed in 2009 after the Nebraska Supreme Court ruled that the electric chair amounted to cruel and unusual punishment.

Soucie says lawmakers unconstitutionally allowed the Department of Correctional Services to set a lethal-injection protocol and exceeded their authority by passing a law that changed Moore's sentence from death by electrocution to lethal injection.

Solicitor General J. Kirk Brown said Moore's conviction and sentence have been affirmed and that "absent a factual circumstance whereby the judgment is void or voidable under the state or U.S. constitution, the court has no jurisdiction" to grant a stay.

Soucie is challenging the legality of Nebraska's purchase from an Indian company, Kayem Pharmaceutical Pvt. Ltd., of one of the drugs and is questioning whether the state even bought the right substance.

"Execution delay objection filed," is the AP filing, via the Omaha World-Herald.

The State of Nebraska has filed its objection to delaying the execution of Carey Dean Moore.

In his filing for the state, J. Kirk Brown said Moore’s conviction and sentence have been affirmed and that without “a factual circumstance whereby the judgment is void or voidable under the state or U.S. constitution, the court has no jurisdiction” to delay the execution.

Moore asked for the delay Tuesday. The request was made as a Douglas County judge considers a motion also filed Tuesday challenging the state’s purchase of one of the three drugs used in its lethal-injection protocol.

The execution would be Nebraska’s first in more than 13 years and its first ever lethal injection. The state Supreme Court banned electrocution in 2008.

From Alabama, the Montgomery Advertiser carries the AP report, "Court considers inmate's plea to stop execution."

An Alabama death row inmate has asked a federal appeals court to stop his execution scheduled for today for killing four people during a 1992 shooting spree in Mobile County.

Jason Oric Williams is scheduled to receive a lethal injection at 6 p.m. today at Holman Prison in Atmore. Williams has appealed to the 11th U.S. Circuit Court of Appeals. Earlier appeals asking the Alabama Supreme Court and U.S. District Judge Keith Watkins to stop the execution were rejected.

The 42-year-old Williams would become the first person to die in Alabama's death chamber using the drug pentobarbital. The drug sodium thiopental was previously used in executions in Alabama, but the state switched drugs because of a nationwide shortage of that drug.

Attorneys for Williams have based his last minute appeals on the fact that the state has switched a key drug in its execution protocol and that there's no guarantee the new drug won't cause Williams great pain and suffering.

But in a response to the 11th Circuit, Assistant Attorney General Clay Crenshaw said Alabama's only change to its drug protocol was using pentobarbital instead of sodium thiopental. The brief said the two drugs are similar barbiturates and that the new drug would not have a significantly different effect.

Reuters posts, "Alabama set to execute man who killed four in 1992," written by Monique Fields.

The execution of Jason Oric Williams, 43, is scheduled for 6 p.m. at Holman Correctional Facility in Atmore, Alabama.

Williams' execution will be the third in Alabama this year. He has been on death row for 18 years.

And:

Attorneys for Williams had filed a petition in the Alabama Supreme Court May 2 to stay the execution.

The motion, denied May 12, said the Alabama Department of Corrections had failed to disclose accurate information about its new lethal injection protocol, as well as provide assurances the execution would be administered in a constitutionally acceptable manner, according to court documents.

The corrections department changed its protocol to use pentobarbital instead of sodium thiopental in its lethal injection cocktail after Hospira Inc., the only U.S. supplier of sodium thiopental, announced earlier this year it would no longer manufacture the drug.

As a result, several states have switched to pentobarbital, a sedative often used to euthanize animals.

Earlier coverage from Alabama and Nebraska is at the links. Related posts are in the lethal injection index.

An Update on Clarence Brandley

Today's Houston Chronicle reports, "Brandley denied compensation from state fund."  It's by Mike Tolson.

Clarence Lee Brandley, whose release from Texas' death row in 1990 helped pave the way for a special fund to compensate victims of wrongful conviction, has been denied payment from the fund.

Brandley was notified last week by the comptroller's office that his claim for nine years of improper incarceration was made too late and lacked either a pardon based on innocence or a court ruling declaring him innocent.

Brandley, 59, was convicted of capital murder in the death of Cheryl Ferguson, a 16-year-old killed during a 1980 volleyball tournament at Conroe High School, where Brandley was employed as a custodian. His conviction quickly became a cause celebre as his supporters claim he was singled out as a suspect only because he was black.

An appeals court all but agreed years later, saying his trial lacked even "the rudiments of fairness," and ordered a new trial.

Montgomery County prosecutors eventually were forced to drop charges against him, while insisting he was guilty.

"Don't tell an innocent man about a statute of limitations," said his brother, Ozell Brandley, at a Wednesday news conference called to announce the beginning of a public campaign on Clarence Brandley's behalf. "Morally there is no statute of limitations on doing what is right. They have never done what is right for him."

Referring to a bill passed this week on behalf of Anthony Graves — rejected for compensation because of technicality after spending 18 years on death row for a crime in which he was not involved — Ozell Brandley urged state legislators to make the same effort for Clarence.

Earlier coverage of Clarence Brandley's post-exoneration life is at the link.

An Update on Anthony Graves

"Senate Approves Anthony Graves Compensation Bill," by Brandi Grissom and Julian Aguilar is at the Texas Tribune.

The Texas Senate today passed a bill that would finally compensate Anthony Graves for the 18 years he spent behind bars convicted of grisly murders he did not commit.

Graves was released from jail in October, and the state owes him more than $1 million, according to his lawyers and to staff members for state Sen. Rodney Ellis, D-Houston. Graves sued the state earlier this year to officially clear his name and to force the Texas comptroller to pay him for the time he was wrongfully imprisoned. Ellis sponsored HB417 by state Rep. Rafael Anchia, D-Dallas, which would enact official guidelines by which exonerees can obtain financial compensation. It now goes back to the House for approval of the Senate's changes.

Under the Timothy Cole Compensation Act, inmates who are freed from jail after being found innocent of the crimes for which they were convicted are entitled to $80,000 for each year of wrongful imprisonment, plus a lifetime annuity. Graves filed a claim with Texas Comptroller Susan Combs after he was released, but she denied it, saying the order releasing Graves did not have the correct wording to entitle him to compensation.

If the bill becomes law, Graves would get compensation through a measure Ellis added that doesn’t mention the former prisoner by name, but narrows the scope of eligibility enough to include him and potentially exclude other exonerees with weaker claims. Under the bill, exonerees would also be eligible for health insurance provided by the Texas Department of Criminal Justice.

The AP post by Sommer Ingram, noted earlier today, has this on the HB 417:

The Senate also approved a bill Wednesday that would give a Texas man wrongfully imprisoned for capital murder compensation he was previously denied by the state comptroller.

The bill would allow Anthony Graves to collect $1.4 million in compensation for his wrongful conviction. Graves spent 18 years behind bars, 12 of them on death row, for the 1992 slayings of six family members, but was declared innocent by a special prosecutor.

Under a 2009 Texas law, exonerees can receive $80,000 for every year they were imprisoned. The state comptroller had denied Graves' claim because the order detailing the exoneration lacks the words "actual innocence." Perry has indicated that he would support efforts to get Graves the compensation he deserved.

The bill amends current law to say that a person is eligible for compensation if they were granted relief in accordance with a writ of habeas corpus and an affidavit from the prosecutor.

The bill also makes sure attorney fees for state compensation claims are not excessive and gives exonorees affordable health insurance through the Texas Department of Criminal Justice.

Earlier coverage of Anthony Graves' exoneration and his quest for compensation begins at the link; all coverage is in the Anthony Graves index.

More Notes From the Texas Legislature

I want to highlight Christy Hoppe's, At a Glance," in today's Dallas Morning New updating criminal justice reform measures before the Texas Legislature.

APPROVED BY THE SENATE

Exoneree benefits: Would give those wrongfully convicted and imprisoned access to a health insurance plan through the Texas Department of Criminal Justice. Would also require that attorneys charge fees based on a reasonable hourly rate. Would modify the law so that exonerees denied compensation based on technicalities receive payment as long as they are shown to be innocent. Awaiting House approval.

Eyewitness identification: Would adopt uniform standards and guidelines to streamline eyewitness and live lineup procedures for police departments across the state. Sent to the governor for his signature.

Post-conviction DNA testing: Ensures that if there is DNA evidence available that might prove innocence, it can be tested. Under the existing law, post-conviction DNA testing is not often performed if the DNA was available but not tested at trial. The evidence could also be tested again and subjected to newer techniques that could lead to a more accurate result. Awaits approval by the House.

STILL ALIVE

Forensic Science Commission: Would expand the panel’s authority by allowing it to investigate any field of forensic science with accredited and nonaccredited labs. Would also give appointment power only to the governor, reduce the number of commissioners and cut public access to all investigation materials. The bill has passed the Senate and needs approval from the House.

NOT LIKELY TO PASS

Recorded interrogations: Would require investigating departments to record interrogations in cases of serious violent crimes.

Innocence Commission: Would create a state panel to investigate the exoneration cases and study reasons for wrongful convictions and make recommendations.

Habeas corpus: Would allow those in prison to file habeas writs — the legal path to exoneration — when new scientific evidence is available, even if they have filed them before.

Earlier coverage of the Texas Legislature begins at the link.

Goodwin Liu Senate Debate Live

You can watch the debate on C-SPAN 2.

Today's Washington Post carries, "Judicial nominee Goodwin Liu faces filibuster showdown," written by Paul Kane and Felicia Sonmez.

The judicial wars have returned to the Senate.

After months of relative calm regarding the federal bench, Senate Republicans are poised Thursday to use a filibuster to block the confirmation of law professor Goodwin Liu to an appellate court.

If successful, it would be the first filibuster of a judicial nominee led entirely by Senate Republicans — six years after their leaders tried to change the chamber’s rules to forbid such an action.

In moving to block Liu, Republicans are warning President Obama that his next Supreme Court nominee is likely to face a more difficult path to confirmation than did his first two selections. “If we prevail, it ought to send a signal that the White House ought to send up people who are more mainstream,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the Judiciary Committee, said Wednesday.

Earlier coverage of Goodwin Liu's nomination to the U.S. Court of Appeals for the Ninth Circuit begins at the link.

Texas Eyewitness ID Reform Heads to Governor's Desk

"Texas Senate OKs bill standardizing eyewitness procedures to help prevent wrongful convictions," is the title of Erin Mulvaney's report in today's Dallas Morning News.

Men who spent time in prison for crimes they didn’t commit have pleaded with lawmakers throughout the legislative session: Improve the criminal justice system so others don’t lose years of their lives to mistakes like they did.

For months, much of that legislation appeared to be stalled, falling under the radar as lawmakers struggled with the budget and other matters. But several measures passed the Senate on Wednesday, aiming to change identification procedures and adopt other provisions sought by criminal justice advocates.

One key bill poised to become law would streamline eyewitness identification procedures by suggesting uniform standards for police departments. About 75 percent of wrongful convictions have been due to mistaken eyewitness identification, including 38 in Texas. A 2008 Justice Project study shows that only 12 percent of police departments in the state have written policies or guidelines for lineups.

Of the 45 Texas exonerations, 22 were Dallas County cases, far more than any other jurisdiction.

“Further delay is justice denied,” said Sen. Rodney Ellis, D-Houston. “We know the problems; we know the solutions. Let’s pass these bills to prevent tragedies from happening in the future.”

Another provision — attached as an amendment to a separate House bill — by Sen. Royce West, D-Dallas, would expand post-conviction DNA testing.

The Senate also passed a comprehensive bill by Ellis to help those wrongfully convicted after they are freed. It would help them obtain health insurance, adopt standards for attorney’s fees and ease the path for receiving state compensation.

The bills the Senate cleared still need approval from the House and may face a long wait behind other bills as the session enters its final 10 days. But Ellis said he was confident that the measures would be palatable to the lower chamber.

But other changes appear caught up in legislative deadlines and lawmakers’ ambivalence. Among them are requirements to record police interrogations for certain violent crimes and to create an Innocence Commission to investigate past cases of wrongful convictions.

The AP report is, "Senate bill aims to reduce wrongful convictions," by Sommer Ingram.  It's via the Fort Worth Star-Telegram.

Law enforcement agencies would be required to standardize eyewitness identification procedures under legislation passed Wednesday by Texas senators in hopes of reducing wrongful convictions in the state.

The bill would require written policies relating to how agencies conduct procedures for photographs and lineups. Agencies would be encouraged to develop blind procedures, where the person administering a lineup doesn't know who the suspect is.

In the state that leads the nation in exonerations based on DNA evidence, lawmakers have been working for years to fine-tune procedures so fewer Texans are put behind bars for crimes they didn't commit.

Eyewitness identification is the leading cause of wrongful convictions, with 80 percent of wrongful convictions involving eyewitness identification error, according to The Innocence Project, a nonprofit working to free wrongfully incarcerated people.

Eyewitness identification reform is the result of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was convicted of a rape he did not commit in 1986 and died in 1999 while serving his 25-year sentence.

"(The bill) enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent," said Sen. Rodney Ellis, the bill's sponsor.

The House already has passed an identical bill authored by Rep. Pete Gallego, D-Alpine. The bill now goes to Gov. Rick Perry's desk before it can become law.

Brandi Grissom posts, "Eyewitness ID Reform Headed to Perry's Desk," at the Texas Tribune.

The Senate today approved a measure that would reform the way law enforcement officers conduct identification lineups, a measure that criminal justice advocates hope will mean fewer wrongful convictions in the future. Under HB 215, police across the state would be required to adopt best practices for photo lineups and live lineups.

"It enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent," said state Sen. Rodney Ellis, D-Houston.

In Texas, 38 of the 44 exonerees who were cleared based on DNA evidence were initially convicted with erroneous eyewitness testimony, Ellis said. Nationwide, about 75 percent of the 266 exonerations were a result of eyewitness mistakes.

The Tim Cole Advisory Panel recommended changes to eyewitness identification practices in police departments. And a Justice Project report from November 2008 showed that only 12 percent of police departments in Texas even have written policies or guidelines for conducting lineups.

Dave Mann updated the post, "Senate Could Pass Eyewitness ID Reform on Wednesday," at the Texas Observer.

Sen. Rodney Ellis just passed the eyewitness reform bill through the Senate without objection. It took all of three minutes. Bill headed to the governor.

And:

Under the legislation, the Bill Blackwood Law Enforcement Management Institute of Texas would develop a set of best practices to prevent flawed lineup procedures. Policy experts have done extensive study of this area. It’s no secret how lineups can be rigged or how to set up a good one. Texas law enforcement agencies would be strongly encouraged—though not required—to follow these procedures. And if they don’t follow the best practices, they may have to reveal that failure at trial.

There was fresh evidence last week of the need for these reforms. Johnny Pinchback was freed from prison after DNA tests showed he wasn’t the man who sexually assaulted two teenage girls in Dallas in 1984. Both victims misidentified Pinchback as their attacker from a photo spread. Pinchback would spend nearly 27 years in prison for a crime he didn’t commit, while the actual rapist went free.

And, of course, there’s the most famous case—Tim Cole’s. Texas has exonerated dozens of men in recent years, and several of them have offered moving testimony this session in support of the bill. But it was Cole’s tragic story—his wrongful conviction in Lubbock and subsequent death in prison before he could be exonerated—that perhaps more than any other has helped spur recent reforms to the criminal justice system. HB 215 might prevent others from suffering Cole’s and Pinchback’s fates.

Earlier coverage of the legislation begins at the link.  More on House Bill215, including the text as passed, at the link.

Nebraska Lethal Injection Challenge

Today's Lincoln Journal Star reports, "Moore's lawyer asks high court for stay of June 14 execution."  It's written by Kevin O'Hanlon.

A lawyer for death-row inmate Carey Dean Moore has asked the Nebraska Supreme Court to stay his scheduled June 14 execution and questions the legality of the state's purchase of one of the three drugs it uses in its lethal-injection protocol.

Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, asked for the stay Tuesday while a Douglas County District Court judge considers a motion he filed challenging the purchase of one of the three lethal-injection drugs.

The state Supreme Court last month rejected a similar appeal Soucie had filed on behalf of Moore and ordered him to be executed on June 14.

Soucie is challenging the legality of Nebraska's purchase from an Indian company, Kayem Pharmaceutical Pvt. Ltd., of one of the drugs and is questioning whether the Department of Correctional Services even bought the right substance.

"It is simply unknown and cannot be confirmed whether the controlled substances imported by DCS from Kayem were produced in accordance with FDA's ... regulations," Soucie wrote. "FDA has long maintained that even state governments are in violation of federal law when they import unapproved drugs. FDA has repeatedly sent letters to state and local governments warning that public programs seeking to import foreign prescription drugs would violate federal law."

The state said it paid $2,056 to Kayem 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.

In Tuesday's filing, Soucie said Nebraska law does not allow the state to obtain lethal-injection drugs from sources not registered with the Food and Drug Administration and the Drug Enforcement Administration.

"There is a compelling interest on the part of the Nebraska courts which has ordered Mr. Moore's execution, DCS which is statutorily tasked with carrying out the death sentence, the individual 'executioner' responsible for injecting the lethal chemicals into the body of Mr. Moore, and obviously Mr. Moore, that the drugs used to cause his death comply with established regulatory and statutory standards regarding the efficacy of the drugs involved," Soucie wrote.

"Killer asks for stay of execution," is the Omaha World-Herald report written by Martha Stoddard.

His case is the oldest among the 11 men on death row.

If granted, the stay of execution would be Moore’s sixth. The last date was set in 2007. The court then issued a stay that was in effect until last month.

Granting another stay would mean further delay in carrying out his death sentence.

But Moore’s motion gives the courts the best chance yet to review Nebraska’s lethal injection law since its passage in 2009.

The Legislature changed the state’s method of execution after the Nebraska Supreme Court ruled that the electric chair, the state’s previous method, was unconstitutionally cruel and unusual punishment.

Soucie’s motion filed with the district court challenges the state’s purchase of sodium thiopental from a company in India. The drug is a fast-acting sedative that would be the first of three used in an execution.

Earlier Nebraska lethal injection coverage begins at the link.

Federal Judicial News

"Senators Debate Whether GCs Can Be Judges," is David Ingram's Legal Times report.

Yale University's deputy general counsel, Susan Carney, will join the U.S. Court of Appeals for the 2nd Circuit, after the Senate put aside concerns about her lack of recent litigation work and voted today for her confirmation.

The vote of 71-28 came after a debate over whether Carney’s 13 years in Yale’s in-house counsel’s office, and her earlier time in private practice in Washington, gave her sufficient experience to be a federal judge. In-house counsel make up a small minority of nominees for the federal bench, and Carney waited almost a full year for the Senate to act on her nomination.

Carney has never argued before a federal appellate court, though she has worked on appellate briefs and has helped to oversee litigation at Yale. She was a partner in Washington at two law firms for four years in the 1980s and also worked in-house at the Peace Corps and as of counsel at the labor firm Bredhoff & Kaiser.

Ingram also writes, "Democrats Push to Confirm Appeals Court Nominee Goodwin Liu," for Legal Times.

Goodwin Liu's bid for a federal judgeship is headed for a crucial vote this week, in what will likely be the biggest fight yet over any of President Barack Obama's nominees for the lower federal courts.

Senate Majority Leader Harry Reid (D-Nev.) moved tonight to bring debate on Liu’s nomination to a close, setting up a vote possibly on Thursday. The motion needs the support of 60 senators to pass. The Democratic caucus controls 53 seats, so they would need Republican help to defeat a filibuster.

Reid considered a similar move to end debate on Liu’s nomination at least once before, in November, before backing off. But in recent weeks, Senate Democrats have turned their attention to pushing through other Obama judicial nominees who faced tough opposition, including Edward Chen and John “Jack” McConnell Jr. for federal district court. McConnell survived an attempted Republican filibuster, and the Senate has not voted down any of Obama’s judge picks.

Reid, whose state is part of the 9th Circuit, framed the debate over Liu in terms of the 2005 compromise by the Senate’s “Gang of 14.” That bipartisan coalition ruled out filibusters of judicial nominees except in cases of “extraordinary circumstances.”

“The nomination before us is not one of those cases,” Reid said on the Senate floor. “The only extraordinary things about Goodwin Liu are his experience, his accomplishments and his integrity.”

Liu’s nomination battle could be the toughest yet under Obama, for several reasons. He has been mentioned as a potential future Supreme Court nominee, and the court he’s been nominated to, the U.S. Court of Appeals for the 9th Circuit, has a reputation as among the most liberal courts in the nation. Liu’s résumé also stirs passions.

Politico carries, "Harry Reid moves for Goodwin Liu confirmation vote."

Tuesday’s action is Reid’s latest attempt to move a judicial nomination forward over GOP opposition. Earlier this month, Reid moved forward with the nomination of Jack McConnell to the U.S. District Court in Rhode Island. McConnell ultimately was approved with the support of 11 Republicans.

Tuesday night, Reid lamented having to hold a vote to stave off a filibuster of Liu.

“So I am forced now to file cloture in order to ensure Goodwin Liu gets the vote he deserves. It’s regrettable that it has come to this,” Reid said. “I remind my Republican colleagues once again that public servants are not political pawns.”

To his advocates in the Asian-American community and among progressive Democrats, Liu, 40, is seen as having an intellect that could ultimately propel him to the nation’s highest court.

Liu’s advocates remain hopeful that some Republicans, especially a small group of senators who have never voted against cloture for a judicial nominee, will allow Liu’s nomination to finally reach a full vote on the Senate floor.

“We’ve actually always felt that we had the votes and it was a matter of calling for it,” said Karen Narasaki, president of the Asian American Justice Center. “While the politics of it have been loud and harsh at the end of the day we think it’s going to be very difficult for a lot of people to vote against cloture for a judicial nomination.

Both the San Francisco Chronicle and Sacramento Bee carry editorials today in support of Liu's confirmation.  The Chronicle editorial is, "Goodwin Liu deserves up-or-down vote in Senate."  The SacBee editorial is, "GOP sabotages itself by blocking Liu's rise."

Earlier coverage of federal judicial nominations begins at the link; related posts are in the judiciary index.

Indigent Defense Costs in Philadelphia

"Petition faulting death-penalty pay dismissed again," is the title of Joseph A. Slobodzian's report in today's Philadelphia Inquirer.

For the second time in three weeks, a Philadelphia judge has dismissed on technical grounds a petition contending that court-appointed attorneys cannot effectively defend the poor in death-penalty cases because of the small amount they get reimbursed.

Philadelphia Common Pleas Court Judge D. Webster Keogh, administrative judge of the trial division, made the ruling Monday.

Despite a second loss for his petition, Marc Bookman, executive director of the Atlantic Center for Capital Representation, was unbowed.

"The court has taken an ostrichlike approach to this critical issue," Bookman said. "Rather than embracing the opportunity to ensure adequate representation for indigent defendants facing the death penalty, court administration has decided to stick its head in the sand and hope the problem goes away."

And:

Philadelphia's flat-fee system in death-penalty cases is the lowest of all 67 counties in the state, Bookman's petition maintains.

In Philadelphia, for example, a lawyer who accepts a death-penalty case that goes to trial gets $2,000 for trial preparation. After the first day of trial, the court-appointed lawyer gets a daily fee of $200 for less than three hours and $400 a day over three hours.

In other counties, lawyers are reimbursed at an hourly rate ranging from $50 in Allegheny County to $125 in Lycoming County.

For a defense lawyer, capital cases are among the most time-consuming and complex to handle, commonly taking two years to come to trial.

The petition asks the court to ban Philadelphia prosecutors from seeking the death penalty unless court-appointed defenders are given enough compensation to properly do their job.

Bookman, a veteran public defender who specialized in capital cases, left last year to create his own nonprofit organization, performing research and providing expert advice to death-penalty lawyers.

Although the Philadelphia courts have been unreceptive, Bookman's petition has attracted support in the legal community.

The Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers has backed the petition, calling Philadelphia's $2,000 flat fee a "disgrace, plain and simple."

Earlier coverage of the petition begins at the link.

Crime Victim Urges Reconciliation

Today's Dallas Morning News reports, "Bangladesh immigrant seeks stay of execution for man who shot him in 9/11 revenge attack."  It's written by Diane Solis.  It's also available via the Greenfield Daily Reporter.

Rais Bhuiyan saw Mark Stroman and his gun in the reflection of the window.

Then came the question a robber wouldn’t ask, Bhuiyan thought.

“Where are you from?”

“Excuse me?”

Within seconds, Bhuiyan, a store clerk, fell to the floor of the convenience store on Buckner Boulevard, bleeding profusely from a head wound from the gun blast. It blinded his right eye but miraculously didn’t damage his brain.

Stroman, a white supremacist, would later confess he was out for revenge against those of Middle Eastern descent in Mesquite and Dallas days after the Sept. 11 terrorist attacks. Already, Stroman had killed one Pakistani immigrant; two weeks later, he’d kill an Indian immigrant.

Now, Bhuiyan wants to forgive. He’ll be asking for a stay of the July 20 evening scheduled execution of Stroman, and a stop to the “cycle of violence,” as he calls it.

“Sometimes, we human beings make mistakes out of anger,” said Bhuiyan, 37, in an interview Monday.

Stroman, a former stonecutter, was convicted of the Oct. 4 killing of Vasudev Patel, an Indian of the Hindu faith who owned a gas station and convenience store in Mesquite. Stroman also confessed to the Sept. 15 Dallas killing of Waqar Hasan, an immigrant from Pakistan and a Muslim, in what is believed to be the first hate crime in the U.S. after the attacks. He was charged in the shooting of Bhuiyan, a Bangladesh immigrant, on Sept. 21.

Bhuiyan said his Islamic faith led him to realize “hate doesn’t bring any good solution to people. At some point we have to break the cycle of violence. It brings more disaster.”

And:

Bhuiyan has a full-time job in information technology but wants to return to college. Last fall, he contacted Dr. Rick Halperin, the director of the human rights education program at Southern Methodist University.

It was a coincidence that Halperin already knew many details of Bhuiyan’s story. Stroman had been corresponding with the professor, an anti-death-penalty activist, for two years.

Bhuiyan explained how the event had shaped his life, how he grew introspective about his faith and how he found answers to why he lived and others died.

The events, Halperin said, “raise questions about compassion and healing and the nature of justice.”

As for Bhuiyan, Halperin said, “I am amazed at the calm with which some can forgive the unforgivable.”

Hadi Jawad of the Dallas Peace Center said Bhuiyan’s actions serve as a lesson for others at a critical time for the nation and the world.

“With the 10th anniversary of 9/11 coming up, we need a narrative of compassion and healing. The world has gone through so much darkness,” Jawad said.

Related posts are in the victims' issues index.

The Last Illinois Death Penalty Prosecution

"State's bill for Coleman trial $494,450 and counting," is the title of a St. Louis Post-Dispatch report by Nicholas J.C. Pistor and Kevin McDermott.

A state fund to promote fairness in death penalty cases has so far spent nearly $500,000 on the prosecution and defense of Christopher Coleman, who was sentenced earlier this week to three life terms for strangling his wife and two sons.

The sum is expected to grow substantially with the payment of final trial expenses and once the state releases records of payments to defense lawyers for their time.

Monroe County State's Attorney Kris Reitz had sought a death sentence in the case. After Coleman was convicted by a jury last week on three counts of first-degree murder, he waived a jury decision on the penalty and was sentenced to life terms by Judge Milton Wharton.

The Illinois Capital Litigation Trust Fund will end later this year because a new state law abolishes death sentences, effective July 1. After the ban passed earlier this year, Gov. Pat Quinn commuted all existing death sentences to life in prison without possibility of parole and pledged to do the same for any new sentences in the interim.

The preliminary total in the Coleman case is $494,450, according to payment vouchers released this week by the state treasurer's office. Defense lawyers' fees were not yet included.

Prosecutors used $179,811 so far, mostly for forensic experts.

And:

The Capital Litigation Trust Fund was created in 1999 after the convictions of 13 inmates on Illinois' death row were overturned. Former Gov. George Ryan declared a freeze on all executions, which has continued since, but the law still permitted prosecutors to seek death sentences.

The Rockford Register Star carries the AP post, "Coleman case cost Illinois fund nearly $500,000."

Illinois abolished the death penalty earlier this year, so the fund will end effective July 1.

The St. Louis Post-Dispatch reports the preliminary total in the case of Christopher Coleman is $494,450. The newspaper cites payment vouchers released by the Illinois treasurer's office. Not all fees have been added in yet.

Coleman was convicted last week by a jury on three counts of first-degree murder.

Coverage of Illinois repeal of capital punishment begins at the link.  Related posts are in the cost index.

From Pennsylvania

The Philadelphia Inquirer reports, "Rarely used, Pennsylvania's death penalty remains a headache on both sides of the debate."  It's written by Joseph A. Slobodzian.

Year after year, polls show that about 60 percent of U.S. citizens support executing people convicted of murder.

Until those citizens become jurors.

An Inquirer analysis of almost 2,000 Pennsylvania homicide cases filed between Jan. 1, 2007, and Feb. 3 shows that just 3 percent of first-degree murder cases - the only charge for which capital punishment is possible - that went to a jury ended with the jury's choosing death.

A third of all first-degree murder cases ended with a sentence of life in prison with no chance of parole, the remainder with guilty verdicts on lesser degrees of homicide, guilty pleas, acquittals, or dismissal of charges.

For the eight people with the dubious distinction of being condemned by Pennsylvania juries since 2007, it's more likely they will die of old age than the injection of chemicals that is now the state's method of execution.

Just three people have been executed since Pennsylvania reinstituted capital punishment in 1978 - two in 1995, the last in 1999 - and only because all three ended appeals and asked for death.

For the other 215 awaiting execution, there is life on death row - solitary confinement 23 hours a day in special units at four state prisons, some for as long as 27 years - a sentence some inmates have called "death on the installment plan."

And:

Yet considering the controversy the death penalty stirs, data on the subject are hard to come by in Pennsylvania.

Although prosecutors must file a court notice when they intend to seek the death penalty, Pennsylvania's court system does not keep statistics on when the 67 county prosecutors do so. Neither do the Pennsylvania District Attorneys Association and the Philadelphia District Attorney's Office.

"We've been looking for that kind of information for years," said Robert B. Dunham, an assistant federal defender in Harrisburg who has long handled appeals of indigent people facing execution.

Dunham, lawyers in the homicide unit of the Defender Association of Philadelphia, and local death-penalty consultant Marc Bookman have been left to glean their own anecdotal data based on what defense lawyers tell them and media accounts.

At The Inquirer's request, the Administrative Office of Pennsylvania Courts supplied a computer spreadsheet of all cases from Jan. 1, 2007 - when the Supreme Court implemented uniform reporting rules for all counties - through Feb. 3, 2011.

The 362 pages of data list 1,975 cases originating in 56 Pennsylvania counties where a person was accused of causing the death of another.

From this list, 639 cases from 41 counties were culled because first-degree murder - a premeditated, malicious killing - was charged, the only crime for which death may be the punishment.

Among first-degree murder cases, 231 ended in a guilty verdict and a life sentence. In only eight cases did the jury opt for death by lethal injection.

For a condemned person, the jury's words are just the beginning, the first step in three levels of appeal guaranteed under the U.S. Constitution and federal and state law.

And:

Many politicians, and citizens who elect them, call the appeals process frivolous and dilatory, and some defense lawyers certainly do their best to prolong a client's life.

But often appeals uncover fundamental problems or unfairness with the trial that yielded a death sentence.

Dunham, the federal defender, noted that of 222 death sentences reversed since 1978 - the year Pennsylvania reinstituted capital punishment - 124 were for ineffective defense attorneys.

Many of those cases are reappearing in county courtrooms for new trials or sentencing hearings - and often result in a guilty plea to a lesser grade of homicide.

The Lebanon Daily News carries an AP report drawn from the Inquirer article, "Paper: Pa. juries rarely opt for death penalty."

"Castille reignites dispute over Pennsylvania death-penalty appeals," is the title of an article by Nathan Gorenstein, also of the Inquirer.

After reading the appeal from prison inmate Mark Spotz, incarcerated on four murder convictions, an angry Chief Justice Ronald D. Castille unleashed perhaps the most scathing language ever from the Pennsylvania State Supreme Court.

His target was not the killer; it was the highly specialized Capital Habeas Unit, 35 mostly federally funded defense lawyers who handle death-case appeals and whom Castille accused of legal "sabotage."

Spotz's cases have been in court for more than a decade. He was convicted in 1996 of four murders in four counties over three days. In three of the four trials, he was sentenced to death. Castille had before him a 100-page brief filed by four habeas unit lawyers and crammed with 70 claims. It appealed just one of Spotz's convictions.

So no matter the outcome, Spotz would remain in jail on his other death sentences.

To Castille, the massive legal document, and the government-funded work it represented, "bordered on the perverse."

It was an example, he wrote last month, of federal defense attorneys using an intentionally "abusive" strategy intended "exhaust as much of this court's time and resources as possible" and frustrate the legitimate exercise of the death penalty.

He called it, "The zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania."

On Friday, the federal defenders responded with their own lengthy written blast, calling the former Philadelphia district attorney's accusations "unwarranted" and "unfounded." They also denied a "suggestion" from Castille that using federal lawyers in state courts was a misuse of federal money.

Behind the unusual dispute is the fact that, although the death penalty is on the books, it is not used in Pennsylvania. There are 215 people on death row in the state, but no one has been involuntarily executed in about three decades. The last execution was in 1999, when torture-murderer Gary Heidnik voluntarily halted his appeals.

And:

The lawyers also sharply rejected Castille's complaints that they nitpick to deliberately clog the court.

"As a lawyer who is appointed to represent someone, we don't have the luxury of saying, 'Well, it's close; we don't make this argument,' " said David Rudovsky, president of the Defender Association of Philadelphia, which oversees public defenders in state and federal courts. "Frivolous claims are in the eye of the beholder," he said.

In the last 15 years, the defenders have represented 14 inmates whose convictions or death sentences were overturned by the State Supreme Court, and 19 whose death sentences or convictions were vacated by a federal court.

Earlier coverage from Pennsylvania begins at the link.

National Law Journal Commentary on Habeas

The current issue of the National Law Journal has two must-reads on habeas corpus.

"The gutting of habeas for state defendants," is by John Blume, Sheri Johnson and Keir Weyble; professors at Cornell Law School.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

And:

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

"Federal habeas corpus & actual innocence; As shown in the Jeffrey MacDonald case, a shake-up of the federal post-conviction system is long overdue," is by attorneys Philip G. Cormier, Andrew Good, Barry C. Scheck and Harvey A. Silverglate.

Two murders in North Carolina, separated by 21 years and 50 miles, have recently been united by the ability of scientific testing to cast doubt on the convicted. In one case, handled by state authorities, a special commission helped exonerate the wrongfully convicted. The other, under federal jurisdiction, has seen courts view piecemeal claims of innocence and reject, until late last month, pleas to consider the evidence as a whole. Taken together, the two cases highlight the procedural hurdles of the federal system that serve to unacceptably hinder claims of innocence.

Dr. Jeffrey R. MacDonald, a Green Beret physician convicted in 1979 of murdering his wife and two daughters at his apartment near Fort Bragg, N.C., in 1970, asked the U.S. Court of Appeals for the 4th Circuit last March for a full review of the findings unearthed in the decades since his first trial — both the forensic evidence and the prosecutorial misconduct (resulting in suppressed evidence) that have put into question his conviction. After courts for decades examined one by one the steady trickle of exculpatory evidence — and rejected MacDonald's request for a new trial each time — the 4th Circuit on April 19 ordered the long-overdue and heretofore elusive review of the "evidence as a whole."

In stark contrast, Gregory F. Taylor, accused of murdering a prostitute in Raleigh in 1991, became the first person freed with the help of the North Carolina Innocence Inquiry Commission last year. Established in 2006 after a wave of wrongfully convicted state prisoners were exonerated by DNA evidence, the commission helped bring to light faulty blood tests and implausible testimony in Taylor's case. On Feb. 17, 2010, after spending 6,149 of his adult days behind bars, Taylor was exonerated by a three-judge panel.

Even when scientific evidence casts serious doubt on culpability, procedural roadblocks can still prolong the prison terms of the demonstrably innocent. The state of North Carolina has taken seriously this formula for injustice; the federal criminal justice system, on the other hand, has been largely immune from having its defects exposed. The 4th Circuit's ruling in U.S. v. MacDonald rolls back this immunity, marking a significant step toward fairness, and the pursuit of truth, in the federal system.

And:

Without the powerful — and, in a federal case, unusual — tool of modern DNA technology, MacDonald's post-conviction team and its amici supporters would not have gotten far enough to even earn this chance to present a full evidentiary picture to a habeas court. It is time to recognize that the federal criminal justice system is equally prone to error as are the various state systems, and to sweep aside, by both legislative and judicial fiat, the accumulated barriers to habeas corpus review of claims of factual innocence.

MacDonald should be the last prisoner — state or federal — to have to spend 32 years (and counting) in prison while dodging one procedural pitfall after another. In a society that holds itself up as free, nothing should block the presentation of overwhelming evidence not only of wrongful conviction, but of actual innocence.

Related posts are in the AEDPA and habeas indexes.  Earlier coverage of the North Carolina Innocence Inquiry Commission begins at the link.

Texas Senate OK's Changes to FSC

"Texas Senate approves bill that would change Forensic Science Commission," by Yamil Berard for the Saturday Fort Worth Star-Telegram.

A state panel tasked with weeding out junk science in the criminal justice system would get broader powers under a bill approved by the Texas Senate on Friday.

Senate Bill 1658 would let the Texas Forensic Science Commission launch an investigation without having to wait for a complaint to be filed.

"It is a positive improvement," said defense attorney Sam Bassett, the commission's former chairman.

But some call the bill an effort to keep information from the public and ensure that the commission is under the governor's control.

"This has the governor's fingerprints all over it," said Stephen Saloom, policy director for the Innocence Project.

Bassett and other critics said they worry about provisions that would allow Gov. Rick Perry to appoint all commission members. Currently, the commission's nine members are appointed by the governor, lieutenant governor and attorney general. The bill would reduce the commission to seven members, all appointed by the governor.

Sen. Rodney Ellis, D-Houston, said that though he supports what the bill is trying to accomplish, he has "major concerns." Allowing the governor to appoint all members is "a fatal flaw," he said.

"This bill is still a starting point, and if it is not cleaned up, Texas will be worse off with it."

Others are concerned about a provision that would close the public's access to the commission's investigations. The bill would exclude all the information from being subject to the Texas Public Information Act. It would also limit the public's access to cases in which criminal charges are no longer pending or an appeal is in process.

"A central purpose in creating the commission was to create public faith in the investigations," Saloom said. "If you deny public access to all this information .. there's little sense in even having the commission."

On Friday, the governor's office deferred comment to the bill's sponsor, Sen. Juan "Chuy" Hinojosa, D-McAllen.

"Senate OKs Forensic Science Commission Bill," by Brandi Grissom for the Texas Tribune.

State Sen. Juan "Chuy" Hinojosa, D-McAllen, said SB 1658 was intended to clear up confusion over the role of the Forensic Science Commission, which has been embroiled in an investigation of the Cameron Todd Willingham case for about two years.

Willingham was convicted of setting fire to his Corsicana 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 group that seeks to exonerate wrongfully convicted people, to review the Willingham case for professional negligence in 2006. It took up the case 3 years later, but the investigation has been fraught with political uproar that has stymied the process.

The commission has approved a final draft of its report on the Willingham case, but the nine-member board declined to make a final ruling about whether there was professional misconduct or negligence on the part of arson investigators because it has been seeking clarification on its jurisdiction from Attorney General Greg Abbott.

Under Hinojosa's bill, the commission would have jurisdiction to investigate the work of both accredited and unaccredited crime labs. It would also be able to initiate investigations of forensic science procedures on its own, without an outside complaint. The bill would clarify that the commission's role is not to issue a determination of guilt or innocence in any case. And it would prohibit the use of commission reports in any civil or criminal litigation.

The AP report is, "Bill would refine duties for Texas forensic panel.  It's by Sommer Ingram and via the Beaumont Enterprise.

Hinojosa's bill would eliminate two commissioners, leaving a 7-member panel composed of a prosecutor, defense attorney and five other forensic science experts. He said the panel's new make-up will make the commission geared more toward expert advice and knowledge of forensics while adding expertise of the courtroom.

The legislation affirms that the commission's role is to determine whether any junk science is used in arson cases, but not to rule on guilt or innocence in the case. A report issued by the commission can't be used as evidence in criminal or civil court.

It now goes to the House for consideration.

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

Watching the Lege

The 82nd Regular Session of the Texas Legislature is winding down.  The 140-day session ends Monday, May 30. 

"Lawmakers must fix justice flaws now," is the title of a Dallas Morning News editorial.  It appeared in the Saturday edition.

One month before Ronald Reagan was re-elected president, in 1984, a jury in Dallas found Johnny Pinchback guilty of a double rape. They had the wrong man.

On Thursday, after DNA tests proved it wasn’t him, Pinchback was set free.

It’s hard to imagine what Pinchback thought about all those years. Before DNA science progressed in the 1990s, he may have spent most of his time wondering why two teenage girls mistakenly picked him out of a photo lineup. Who was the real rapist? What was that man doing with his freedom?

And:

Truth is, no one can imagine the thoughts a man has during the almost 27 years that he is locked up for a crime he didn’t commit.

But there are the two questions that can be answered, ones Texans must ask their lawmakers right now: How many more Johnny Pinchbacks, Cornelius Duprees and Charles Chatmans are there? And what are lawmakers going to do about it?

Lt. Gov. David Dewhurst and House Speaker Joe Straus need to intervene to move along four vital bills. First, they need to pass HB 215, which will require police departments to create written standards for collecting and using eyewitness evidence. Second, they need to pass SB 122 to expand access to post-conviction DNA testing. Third, they need to pass SB 1616, which would create uniform standards for collecting and preserving DNA evidence. (The reason Dallas County leads the nation is because it has done a better job of preserving this evidence than others.) And, finally, they need to pass SB 1636 to require the Texas Department of Public Safety to subject all rape kits to DNA testing.

These bills aren’t just good policy; they are penance. The state of Texas has destroyed lives. Mistaken prosecutors, confused witnesses and misled jurors have robbed mothers of their sons, children of their fathers, wives of their husbands.

As the clock runs down on a Legislature sometimes paralyzed by partisan bickering, these bipartisan reforms can unite lawmakers behind a single goal: We will not allow justice to be delayed any longer for the innocent.

"Making justice just: In every wrongful conviction, something went wrong. We need to know what," is the title of a Houston Chronicle editorial.  I appeared in the Sunday edition.

In airplane flights and in criminal convictions, close isn't good enough. At the end of a thousand-mile jet flight, hitting the ground only a mile from the runway counts as a disaster. And we treat it like one: The NTSB investigates to find the cause, and uses that information to prevent similar crashes in the future.

Unfortunately, we're not so vigilant about wrongful convictions — even though DNA evidence shows that too often, Texas has imprisoned men who only resembled the actual perpetrators, or who were unfortunately close to the wrong place at the wrong time. Texas, with more than 40 such exonerations, counts more of these overturned convictions than any other state. And as more evidence is tested, the number continues to rise.

And:

A pair of similar bills in the Texas Legislature - SB 1835 by Rodney Ellis, D-Houston; and HB 115 by Ruth McClendon, D-San Antonio - would change that. Those bills would establish a state innocence commission to probe wrongful convictions the same way that the NTSB probes crashes.

The commission would be named after Timothy Cole, a Texas Tech student who, after being wrongly convicted of rape, died in prison. In Cole's case, the problem lay in faulty eyewitness testimony - once the gold standard of proof, but now understood to be far less reliable than once believed. Because victims have an uncanny ability to pick up on investigators' subtle, unspoken cues, it's important that such cues be minimized - no fair if one photo is color, but all the others black-and-white - and that lineups be double-blind, administered by officers who don't know which person investigators actually suspect.

Changes to lineup and questioning procedures, and similar troubleshooting improvements, are often simple and cheap - especially when compared to the cost of a single wrongful conviction. Yes, we believe that wrongful convictions are relatively rare in Texas - but so are airplane crashes. Our justice system deserves similar vigilance.

A single mistake is horrifying. But never uncovering the mistake, and continuing to repeat it, is far worse.

More news from the legislative session in the next post.  Earlier coverage of these criminal justice reforms begins at the link.

The Executioner's Dilemma

That's the title of a lengthy examination of current lethal injection issues in the current issue of the Nation.  It's written by Liliana Segura.  Here'e the beginning of this must-read:

As Emmanuel Hammond lay strapped to a gurney with lethal drugs seeping into his veins, witnesses to his execution could tell something wasn't right. First he closed his eyes. But moments later, they fluttered open.

“Maybe two minutes in, his mouth kind of pulled way over to the side and then relaxed,” recalls his attorney, Sheri Johnson. It moved again, and he took two hard breaths. “To me it looked like pain,” Johnson says. “It looked like a grimace.” It was unlike other executions she'd witnessed, even one that took twenty minutes and required a second dose of lethal drugs. That inmate had closed his eyes and remained motionless a few seconds in. Hammond's execution “was like nothing I have ever seen before.”

A few months earlier, in September 2010, another Georgia prisoner, Brandon Rhode, had died in a similar way. His mother, who at her son's request did not attend his execution, was at a nearby truck stop waiting for it to be over. “When the pastor, Randy Loney, came back,” she told the Guardian, “he told me that Brandon had...maintained eye contact the whole time.” Pastor Loney's account was supported by press reports, which stated that Rhode's eyes stayed open until he was pronounced dead.

Hammond and Rhode were executed, like most death row prisoners, using a deadly combination of three drugs. The first, a barbiturate, is meant to sedate and anesthetize the inmate. The second, pancuronium bromide, causes paralysis. And the third, potassium chloride, stops the heart. For years, autopsies and witness descriptions have shown that the first drug, sodium thiopental, doesn't always work; some prisoners have been conscious, paralyzed and slowly suffocating until the end. Eye movement is one sign that things have gone wrong. Dr. Mark Heath, a physician and anesthesiologist who teaches at Columbia University Medical Center, wrote after Rhode's execution that “it is very unusual and surprising for a prisoner's eyes to remain open after the efficacious administration of thiopental.” The implications were grim. “There is no dispute that the asphyxiation caused by pancuronium [bromide] and the caustic burning sensation caused by potassium [chloride] would be agonizing in the absence of adequate anesthesia,” he wrote.

Concern that prisoners were being tortured to death was at the heart of the landmark 2008 Supreme Court case Baze v. Rees, which sought to decide whether lethal injection as carried out in Kentucky (and most death penalty states) was cruel and unusual punishment. The Court ruled that it was not, denying that lethal injections pose “a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.” But since then, states have strayed from the process upheld in Baze, partly because of a nationwide shortage of sodium thiopental. Some have sought out dubious new sources of the drug. Others, increasingly, are trading it in for a different one. Nowhere has the process been transparent—and some states appear to have broken federal laws in their rush to execute. As states have tinkered with their lethal formulas, in Georgia the result has been exactly the kind of tortuous executions the Supreme Court deemed unlikely when it upheld lethal injection.

Lawyers for Emmanuel Hammond knew he risked dying an excruciating death. After Rhode's botched execution, they filed an Open Records request to force the Georgia Department of Corrections (GDC) to disclose its source of sodium thiopental, while also requesting a stay of execution. Months later, on January 24, a Superior Court judge directed the GDC to release the records, but denied the stay, citing “no evidence” that the drugs were ineffective. The next day, just before midnight, Hammond was dead.

Global Post reports, "Europe fights the death penalty - with drugs."  It's written by Teri Schultz.

The Danish pharmaceutical company Lundbeck has an ethical dilemma.

It prides itself on making products that improve peoples’ lives. But one is helping put people to death.

Convicted killer Benny Joe Stevens was executed Tuesday in Mississippi’s Parchman State Penitentiary with a lethal injection of the anesthetic pentobarbital made by Lundbeck.

Denmark, like the rest of the European Union, is officially opposed to the death penalty. Lundbeck spokesman Anders Schroll said the company holds that position in the Danish headquarters as well as in its American office.

“This is a misuse of our product,” Schroll said. “We are in an ethical dilemma where we are opposed to the use of our medication for capital punishment while at the same time we want to make sure that patients who benefit from our medication get access to it.”

Pentobarbital is also used in the treatment of seizures in humans and in anesthesia and euthanasia of animals. Only Lundbeck still manufactures the drug for purchase in the United States. Schroll provided letters from doctors urging the company not to withdraw the 50 million doses of the drug sold each year.

For its part, Schroll said Lundbeck has sent letters to prisons in 11 states in recent months demanding they cease using pentobarbital as part of the lethal injection “cocktail” because “this is just not what we stand for” he said. The Danish foreign ministry has pursued the matter through its contacts. No prison has responded. In fact, more and more states are intending to use the drug, with Virginia, the secondmost-active death-penalty state, announcing a switch just this week, following the lead execution state, Texas, earlier this month.

Earlier lethal injection coverage from Georgia begins at the link.  Related posts are in the lethal injection index.

A Clemency Recommendation in Ohio

The Ohio Department of Rehabilitation & Corrections clemency report on Shawn Hawkins is available in Adobe .pdf format.

Today's Cincinnati Enquirer reports, "Clemency recommended for death row inmate."  It's written by Jon Craig.

There are too many lingering doubts in a 21-year-old murder conviction to warrant next month’s execution of Shawn Hawkins, a unanimous Ohio Parole Board told Gov. John Kasich on Thursday, instead recommending that Hawkins spend the rest of his life in prison.

Hawkins, 42, is on death row for fatally shooting two teenagers in Mount Healthy in June 1989. In its 7-0 clemency recommendation, the board wrote it is “not convinced that Shawn Hawkins is innocent,” but said there are lingering questions about others involved.

The board concluded that police and the Hamilton County Prosecutor’s Office failed to fully investigate the role four others played – including the only eyewitness, Henry Brown Jr.

Murder and robbery charges against Brown were dropped after the 16-year-old testified against Hawkins.

The board said it was troubled by Hawkins’ inability to remember what he did with a pager used to set up a marijuana sale, and why he initially told police he was never in the car in which the victims were found. Hawkins’ partial bloody thumbprint was found on a notebook in the Hyundai.

And:

Anthony G. Covatta Jr., Hawkins’ defense attorney, said there is no statute of limitations on murder; he’s asked for a new trial. At last week’s parole board hearing, Covatta named two people he thinks fatally shot Diamond Marteen, 19, and Terrance Richard, 18.

“The death penalty is a fate that Shawn does not deserve,” Covatta said.

Hawkins has always maintained his innocence, including during a Death Row interview last month at Ohio State Penitentiary near Youngstown. He won’t name who he thinks killed Marteen and Richard – insisting he has no firsthand knowledge of the execution-style shootings. The interview prompted one of the 12 jurors who convicted Hawkins to write a letter to the parole board expressing her doubts about Hawkins’ conviction.

“I wish it was more overwhelming that he was guilty,” Patricia Dupps of Loveland wrote. Life without parole was not a sentencing option in 1990.

Kasich had no immediate comment, according to his spokesman. Three inmates have been executed since Kasich took office in January, and a fourth is scheduled Tuesday. Six convicted killers have had their death sentences commuted to life in prison without parole since Ohio resumed executions in 1999.

The AP report, "Mercy recommended for killer with June execution date," is by Andrew Welsh-Huggins.  It's via the Columbus Dispatch.

The Ohio Parole Board recommended mercy yesterday for a condemned killer of two scheduled to die in June, a relatively rare step by a board that generally sides with the state in its rulings.

The final decision on whether to spare Shawn Hawkins now rests with Gov. John Kasich, who has allowed three executions to proceed since becoming governor but has yet to decide on a case where his parole board recommended in favor of the inmate.

The board, by a 7-0 vote, said it had no doubt Hawkins was involved in the 1989 slaying of two men in Cincinnati and likely shot the men, but it said it was troubled by many aspects of his conviction.

"The Board is not confident in the death sentence in this case, but is also not convinced that Shawn Hawkins is innocent," yesterday's ruling said.

Related posts are in the clemency index.

A Plea Agreement in Houston

"Officer's killer gets 40 years in plea deal," is the title of Brian Rogers' report in today's Houston Chronicle.

Sergio Robles, a diagnosed schizophrenic with a lifetime of mental illness, had two words Thursday for the family of the Pasadena police officer he killed in an August 2009 shootout: "I'm sorry."

Amy Hamilton, Jesse Hamilton's widow and the mother of the couple's two young daughters, had something more emphatic to say to Robles: "I hope your life is so miserable that you look forward to death."

Amy Hamilton's words were read by her slain husband's brother, Chance Hamilton, after Robles pleaded guilty to murder in exchange for a 40-year prison sentence in a Houston courtroom Thursday.

Hamilton, 29, was killed after being shot in the head answering a mental health call from Robles' mother. Robles also was shot and carries the bullet lodged in his head.

The 26-year-old, who could have faced the death penalty, apologized while being sentenced by state District Judge Kevin Fine in a courtroom packed with more than 70 Pasadena officers. He will have to serve at least half of the sentence before becoming eligible for parole.

And:

 The plea agreement was the result of two years of investigation and three mental evaluations to determine Robles' state of mind.

Two doctors said he was insane during the shooting and one said he was sane, a split that could have put dueling experts in front of jurors.

"The risk of going to trial was too great for either side," said Assistant Harris County District Attorney Bill Hawkins. "It wasn't an easy decision for either side, but it was a fair decision for both sides."

A career prosecutor, Hawkins said he hopes Robles dies behind bars.

"On his medication, he's a safe person," he said. "Off of his medication, he's a time bomb."

Katherine Scardino, Robles' attorney, credited Hawkins with looking at years of medical records before deciding against seeking the death penalty for the intentional killing of a peace officer.

"In any death penalty-eligible case, prosecutors want to look at mitigating evidence," Scardino said. "It this case, you have strong mitigation evidence, including mental health records indicating a severe mental disability for many years."

She said Thursday's plea was a just result.

Related posts are in the mental illness and mitigation indexes.

This is a good time to post out Colleen McCain Nelson's post, "Meet 'The Mitigator'," at the Dallas Morning News Death Penalty blog.

The current issue of The New Yorker features a lengthy profile of Danalynn Recer, a Houston lawyer credited with helping to stem the tide of death penalty cases in Harris County. While Harris County once eclipsed other Texas counties -- and every other state for that matter -- with its steady stream of death penalty cases, the number has dropped significantly in recent years.

Only two people were sent to death row in Harris County in 2010. Prosecutors and juries in capital cases now are opting to impose a sentence of life without parole more frequently. In The New Yorker , writer Jeffrey Toobin suggests that Recer, a mitigation strategist, has played a role in the decline of death sentences.

Recer, the executive director of the Gulf Region Advocacy Center, seeks to tell a defendant's life story, laying out mitigating factors that might convince a jury to lock someone up instead of sentencing him to death. As 'the mitigator,' Recer is not dealing with questions of guilt or innocence, but she's looking at what in a defendant's background might have led that person to commit this crime. Is he mentally ill? Was he abused growing up? Does he have a criminal record, or was this a single, irrational act? Recer tries to humanize the defendant and show the jury that this is a person with redeeming qualities -- not just a one-dimensional monster.

And:

She not only has had success in court, convincing juries to opt for life sentences, but she also has taken the bold step of providing prosecutors with mitigation evidence before a case ever goes to trial. As a result, the DA's office sometimes has chosen to pursue life without parole instead of a death sentence. As Recer says in the article, "The best way to avoid the death penalty is never to have it charged in the first place."

Recer and a couple other attorneys met with members of our editorial board this week. Together, they painted a disquieting picture of the Texas' approach to criminal justice over the years.

Jeffrey Toobin's New Yorker profile is noted at the link.

In Connecticut

Today's Hartford Courant reports, "Senators Withdraw Support For Death Penalty Repeal."  It's written by Daniela Altimari.

The drive to abolish the death penalty in Connecticut suffered a potentially fatal blow Wednesday when two state senators announced they will no longer support the effort.

Sen. Edith Prague, a Democrat from Columbia, said she made her decision after meeting with Dr. William Petit, the sole survivor of a home invasion in which his wife and two daughters were killed. One of the men convicted in the case, Steven Hayes, has been sentenced to death; jury selection is underway in the trial of a second defendant, Joshua Komisarjevsky.

"I don't care what anybody says,'' Prague said. "I want to give this man a little ounce of consideration here and that's my reason at this point in time to not support repeal. I have to live with myself. ... I could not for one second cause this family any more stress.''

Sen. Andrew Maynard, a Democrat from Stonington, told abolition advocates that he, too, could no longer back the bill.

Supporters of the repeal movement knew the bill would be close in the Senate but had expressed cautious optimism that this would be their year. Late Wednesday night they conceded defeat.

"When the vote is this close and one thing changes, things can come crashing down,'' Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said late Wednesday night.

The legislature had passed a bill eliminating the death penalty in 2009, but it was vetoed by then-Gov. M. Jodi Rell. Her replacement, Dannel P. Malloy, has pledged to sign a repeal bill.

But the emotional backdrop of the Hayes and Komisarjevsky trials Petit's quiet lobbying appear to have sharply changed the dynamic.

"It has a huge impact. … Dr. Petit is an individual with a tragic situation,'' said Rep. Gary Holder-Winfield, a New Haven Democrat and leader of the repeal movement in the House of Representatives. "But we've had other individuals with tragic situations that don't agree with him.'' Advocates of repeal brought in scores of family members of murder victims who spoke against capital punishment and in favor of repeal.

"Keeping the death penalty until next year will ensure that victim family members will continue with the constant uncertainty and endless media attention," Elizabeth Brancato of Torrington, whose mother was murdered in 1979, said in a press release issued by supporters of the repeal movement. "The death penalty is nothing more than a grisly distraction from the real needs of so many victims."

The AP report is, "Conn. death penalty repeal appears in doubt," by Susan Haigh.  It's via WABC-TV.

Efforts to repeal Connecticut's death penalty this year appeared in doubt Wednesday after a key state senator informed her leadership that she has agreed not to support repeal at the request of Dr. William Petit, the lone survivor of a 2007 Cheshire home invasion in which his wife and daughters were killed.

Sen. Edith Prague, D-Columbia, said Petit and his sister recently met with her and asked the longtime legislator not to support the repeal legislation. Even though the legislation states that it only affects future capital felony crimes, she said Petit is concerned that the second suspect in his family's case, Joshua Komisarjevsky, could use the repeal as the basis for an appeal and possibly not face capital punishment.

"Whatever he would have asked me to do, I would have done, because that family doesn't deserve any more stress or aggravation," Prague said. "So, I'm going to honor their request. I want to do a little something for them."

Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said his group is still waiting to see whether the repeal bill can pass this year. He said there are still "a handful" of uncommitted senators. The advocates were optimistic about the legislation's chances because Gov. Dannel P. Malloy supports repealing the death penalty for future crimes.

"We want to see if they're going to take it up this year or wait. There's a lot of stuff going on obviously, with the layoffs and everything," Jones said, referring to state budget issues. "If they wait, it won't be a surprise. Right now a lot of things are up in the air."

Jones said there is enough support for the bill in the House of Representatives.

Prague has voted for the death penalty in the past. A granddaughter of one of her neighbors was a victim of serial killer Michael Ross, the last person to be executed in Connecticut. He was put to death in 2005.

Since that time, Prague said she has become concerned about the possibility of the state executing an innocent man, especially after learning about James Tillman, the Connecticut man who was imprisoned from 1988 to 2006 for a rape and kidnapping he said he did not commit. DNA evidence later cleared him of the crimes.

Prague said Petit fears repealing the law could hinder efforts to convict the last suspect in the case and impose a death sentence. The other man charged was convicted and sentenced to death last year.

The Day reports, "Senators change minds on death penalty," by JC Reindl.

State Sen. Edith Prague, D-Columbia, doesn't believe in the death penalty.

She says she would like to see it abolished in Connecticut, and until last week, was ready to lend her vote to the latest repeal bill in the legislature.

But Prague said she changed her mind after an emotion-filled meeting last Friday at the Capitol with Dr. William Petit, the lone survivor of the 2007 Cheshire home invasion that left his wife and two daughters dead.

She and fellow senator Andrew Maynard, D-Stonington, reversed their pro-repeal positions after sitting down on separate occasions with Petit and his sister, Johanna Chapman, and his lawyer, Jeffrey Meyer, the son of Sen. Edward Meyer, D-Guilford.

"I just feel that if there is anything I could do to help this man at all, I've got to do it," Prague said Wednesday. "This man has been through enough without us making it more difficult on him."

Maynard said he was particularly convinced to change his vote after he heard Petit, Chapman and Meyer detail their experience with the legal system.

At one point during legal proceedings, the defendants were referred to as "gentlemen" while Petit's wife and two daughters were called the "alleged victims," Maynard said.

"That statement stung me as I thought about being in his place," Maynard said Wednesday night. "I know that is not a reason to change your mind on the position, but you're suddenly confronted with: What in the world are we doing to people that have suffered these kinds of horrific experiences?"

"At Petit's request, two senators stop repeal of death penalty," by Mark Pazniokas for the CT Mirror.

Two senators opposed to capital punishment said Wednesday they are refusing to vote to repeal the death penalty this year at the request of Dr. William A. Petit, sole survivor of a home invasion that left his wife and two daughters dead. Their switch ends the repeal effort for 2011.

Sen. Edith G. Prague, D-Columbia, told Senate leaders she would not vote for repeal until next session, after the trial of the last of two defendants in the Cheshire home invasion case, in which Petit's wife was strangled and his daughters bound and left to die in their burning home.

Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit. Prague also voted for repeal in 2009.

"I actually believe in repealing the death penalty," said Prague, a senator for 16 years. "For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can't do it."

Prague and Maynard said Petit, a sister, Johanna Chapman, and a lawyer, Jeffrey Meyer, who is the son of Sen. Edward Meyer, D-Guilford, told them in separate meetings that repeal could complicate the capital trial of Joshua Komisarjevsky, one of two men charged in the Cheshire case. Another defendant, Steven Hayes, was convicted and sentenced to death.

The repeal legislation was written as a prospective law, to affect only crimes committed after the effective date. But opponents have said it could be grounds for appeal by Komisarjevsky, if sentenced to death, or others to fight a death sentence, and Petit made that case to Prague in a legislative conference room last week.

Prague's voice broke Wednesday as she recounted her visit from Petit.

"I can still see Dr. Petit's face in front of me. Oh, my god in heaven. I'm doing it because that's what they came in for," Prague said. "They brought their lawyer and said, 'If you vote for the repeal, it would make it more difficult."

Kimberly Harrison, a lobbyist for the repeal campaign, said she understands that Petit has been a powerful and sympathetic figure at the Capitol, though a similar bill passed in 2009, while the crime still was fresh in the minds of legislators. Gov. M. Jodi Rell vetoed the measure.

Petit has testified at public hearings on on crime bills, as has his sister.

"He has every right to influence legislators," Harrison said.

With Maynard and Prague on board, the repeal legislation would have passed on an 18 to 18 vote, with Lt. Gov. Nancy Wyman breaking the tie. The House has ample votes for passage, and Gov. Dannel P. Malloy is willing to sign the bill into law.

"Conn. legislator's reversal on death penalty expected to end repeal effort, by Mary E. O’Leary in the New Haven Register.

Abolition advocates see the delay as just that.

“The repeal movement in our state is stronger than ever, bringing together a variety of groups like never before who remain committed to repeal,” said Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty. “This merely puts off for another year the inevitable end of the death penalty in our state, another year of failing victims’ family members and another year of wasting limited state resources.”

Earlier coverage from Connecticut begins at the link.

Former Warden to Lead Death Penalty Focus

"Former CA Prison Warden Tapped as a Leader of Anti-Death Penalty Movement," is the title of a news release issued this morning by Death Penalty Focus.  Here's the entire release:

Jeanne Woodford, former Undersecretary and Director of the California Department of Corrections and Rehabilitation and Warden of San Quentin State Prison, has been selected as the new executive director of Death Penalty Focus, board president Mike Farrell announced today.  San Quentin houses California’s death row and Woodford, a 33-year veteran of corrections and law enforcement, oversaw four executions as warden.

“After each execution, I faced the reality that I had not made the world any safer.  The death penalty is a failed public policy and I am committed to spending the rest of my career working to end this costly and ineffective practice,” said Ms. Woodford.  “The death penalty fails to serve victims’ families, does not keep the public safer than the alternative of life without the possibility of parole, inflicts unnecessary stress and trauma on prison personnel, and drains taxpayer resources that could be better spent providing crucial services to homicide victims’ families.”

Founded in 1988, Death Penalty Focus is one of the largest nonprofit advocacy organizations in the nation dedicated to the abolition of capital punishment.  Ms. Woodford will focus attention on building Death Penalty Focus’ programs that give voice to law enforcement officers, victims’ family members, the wrongfully convicted, and people of faith in opposing the death penalty. 

“Jeanne Woodford will lead the death penalty abolition movement at a pivotal moment in our nation’s history.  With public support for capital punishment eroding, and growing numbers of states considering repeal legislation, Ms. Woodford will be a central figure in hastening the day when the death penalty is recognized as a relic of a bygone era,” said Mr. Farrell.           

Four states (Illinois, New Mexico, New Jersey, and New York) have abolished the death penalty in four years, bringing the number of states that do not have the death penalty to 16, along with the District of Columbia.  Bills to abolish the death penalty are under consideration in Connecticut, Florida, Kansas, Maryland, Ohio, Pennsylvania, and Texas with support from Republican and Democratic legislators, law enforcement officers, victims’ family members, and growing numbers of the general public.

“As a veteran of law enforcement and a cabinet-level state official, Jeanne Woodford has a unique perspective on the policies needed to keep families safe and use tax dollars most efficiently.  As the warden of San Quentin, Ms. Woodford speaks with unique authority and first-hand experience about the risks of executing the innocent and the failure of the death penalty in California to bring resolution to many victims or deter crime," said Barry Scheck, Co-Director of the Innocence Project and Professor at Cardozo School of Law in New York City.
California, where more than 700 men and women are on death row, has not conducted an execution since January, 2006 due to challenges to the state’s lethal injection protocols.  A 2010 Lake Research Partners poll showed that a clear majority of voters nationwide (61%) and in California (62%) would prefer a punishment other than the death penalty for first-degree murder.  A recent poll by David Binder Research found that 63% California voters would support converting the sentences of everyone on death row in California to life without the possibility of parole to save the state more than $1 billion in five years.
Ms. Woodford succeeds Lance Lindsey, who is credited with quadrupling the organization’s membership during his 16-year tenure, leading Death Penalty Focus to become, as Human Rights Watch recently noted, “one of the premier organizations seeking to abolish the death penalty by educating and mobilizing the public, and ensuring that the use of this arbitrary and barbaric practice receives the intense critical scrutiny that it deserves.” 

Ms. Woodford will be making her first public appearance on May 12th at DPF’s Annual Awards Dinner in Beverly Hills. Details:

Read Ms. Woodford’s bio.

Read Ms. Woodford’s opinion editorial in The Los Angeles Times, “California Warden Now Believes that Executions Don’t Make Us Safer,”

Read a profile of Ms. Woodford in The New York Times Magazine.

"Former California prisons leader joins fight against death penalty," is the Los Angeles Times news article written by Carol J. Williams.  Here's an extended excerpt from the beginning of the report:

As the clock ticked past midnight and the death chamber phone refused to ring, San Quentin State Prison Warden Jeanne Woodford would calmly signal the executioners to inject a lethal dose of chemicals into the condemned man's veins.

Reared in a Roman Catholic family, she grew up believing that only God had the right to take a life. But four times in her 30-year career in California corrections, the soft-spoken mother of five carried out executions of notorious killers, remorseful and unrepentant alike.

Woodford resigned as director of the California Department of Corrections and Rehabilitation four years ago, dismayed over state authorities' clinging to policies such as the death penalty that she had concluded are wasteful, discriminatory and fail to make the public safer.

Now, as the state tries to restart the execution machinery after a five-year legal hiatus, Woodford has crossed to the other side of the contentious debate over capital punishment. On Thursday, the abolitionist nonprofit Death Penalty Focus will announce Woodford's appointment as executive director, a new role that will see her standing on the other side of the walls of San Quentin should any of the 713 death row inmates meet his or her end at the hands of the state.

"I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," Woodford, 56, said in explaining how she had to put her personal abhorrence of execution aside to do her job. "The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution."

Woodford says she sees an opportunity to get rid of the death penalty in the current quest for budgetary restraint. If the public can be educated about the true costs of capital punishment — at least $200 million a year, she says — as well as its potential for irreversible error, support for the ultimate penalty would wither, Woodford predicts. It is that prospect that has lured her from a brief retirement to the post with Death Penalty Focus from which she will lobby against the policy she once imposed.

"There comes a time when you have to ask if a penalty that is so permanent can be available in such an imperfect system," she says of the mounting instances elsewhere in the country of death row inmates being exonerated by DNA evidence. "The only guarantee against executing the innocent is to do away with the death penalty."

Executions were few and far between during her years at San Quentin, and Woodford focused her attention on the goal of rehabilitation, preparing those with prospects for release to live within the law once they got outside. San Quentin — its storied ocher fortress on a promontory above San Francisco Bay and nestled amid some of the most liberal communities in the country — gained a reputation as a leading progressive penal institution in the years she was there.

Built by inmates housed on a ship until the first wing opened in 1852, San Quentin was one of the first prisons to create an Alcoholics Anonymous chapter, Woodford recalls, and was able to harness the altruism and energy of volunteer counselors and teachers to augment the corrections department's meager rehabilitation resources. In the 1980s and '90s, inmates earned their GEDs, college degrees and trade skills, and aspired to finish their time in the Success Dorm, the re-entry program that would prepare them for life when they got out.

But as she made her way up the ranks, Woodford became increasingly troubled by the state's embrace of capital punishment, restored as a sentencing option in 1978, the year she arrived at San Quentin with a freshly printed degree in criminal justice from Sonoma State University. Though it would be more than a decade before the first of 13 executions was carried out, she watched with dismay as the political football of capital punishment was tossed among tough-on-crime candidates for county district attorney offices and the statehouse.

It was the third of the four executions during her tenure as warden, the 2001 lethal injection of Robert Lee Massie, that brought her to see the death penalty as a failed policy draining funds better used elsewhere. Massie, sentenced to death a second time after his first capital conviction was commuted in 1974, had been a victim of abuse in the state's foster care system, mistreatment born of dwindling state funding and oversight that set him on a path of destruction, she said.

After 26 years at San Quentin, Woodford was tapped by Gov. Arnold Schwarzenegger to serve as corrections director in 2004, a job she initially hoped would allow her to reform the system from inside. She wanted to close the revolving door of parole violators flooding the prisons for three-month terms, enough to compound overcrowding and soak up medical care but too short to get into rehabilitative programs.

"It was an incredibly expensive bus ride to nowhere," she said of the vicious circle of petty offenses sending parolees back inside to reconnect with hardened criminals.

Earlier coverage from California begins at the link.

Cary Clack on the Anthony Graves Case & Journalism

The San Antonio Express-News columnist writes, "Praising the Fourth Estate," for today's paper.

Most people fortunate enough to find their way into journalism aren't Don (or Doña) Quixotes intent on a futile career of tilting at windmills.

The actual giants dotting landscapes are real problems, real issues and real systems that harm people and their communities.

These are the giants who inspire journalists to be knights-errant - people who seek to right wrongs while telling a story accurately and well.

One of the best journalists in the land, one of the great magazine writers in America, is Pamela Colloff of Texas Monthly. She may have written and may yet write better stories than her October 2010 cover story, "Innocence Lost," but she may never write a more important piece or one that had so swift and positive an impact.

The story is about the outrageous case of Anthony Graves, who in 1994 was convicted and sentenced to die for six horrific murders in the Central Texas town of Somerville. The victims were Bobbie Davis, her teenage daughter and four grandchildren, ages 9, 6, 5 and 4.

The only thing that incriminated Graves was the word of the man who was eventually executed for the murders and who, until his death, insisted that he'd lied about Graves' involvement. In 2006 the Fifth Circuit Court of Appeals overturned Graves' conviction, and he was removed from death row. A new trial was scheduled for last February in his hometown of Brenham.

To read Colloff's brilliantly reported 14,000 words is to be left with no doubt of Graves' innocence. Brenham's district attorney felt the same way and, within a month of the story's appearance, dropped all charges against Graves.

"Innocence Lost" and Colloff`s January 2011 follow-up, "Innocence Found," made Texas Monthly a finalist in the Public Interest category at Monday night's National Magazine Awards. Although The New Yorker won, Colloff's journalism served the public interest by exposing the incompetence and corruption that came perilously close to killing an innocent man and stole 18 years of his life.

And no award can compare with winning that man his freedom. Graves, for one, is grateful. Now 46, Graves, whose case became an international cause, is touring overseas talking about what happened to him.

Colloff's two Texas Monthly articles are noted at the links.

"Graves should not have to accept an IOU on justice," is the title of a Dallas Morning News editorial from last week.

The absurdity of Texas Attorney General Greg Abbott seizing a $250 check due to Anthony Graves underscores the point that the state’s best-known exoneree still has not received justice.

Graves, wrongfully convicted of capital murder in 1994, was released in October after 18 years of incarceration, most of it on death row. A special prosecutor handling a retrial of his case cited fabricated evidence and unethical pressure on witnesses by her predecessor when prosecutors asked a state court to drop all charges. The court readily agreed.

The obvious next step would have been for Graves to receive compensation from the state under the Timothy Cole Compensation Act, which allots $80,000 to wrongfully convicted people for every year of their life taken by the state. Instead, because the court did not use the words “actual innocence” in its release order, Comptroller Susan Combs said the state should not pay. Despite criticism from Gov. Rick Perry — and pretty much everyone else — the comptroller has stood by this decision, which has prompted a lawsuit.

Now, while all of this is going on, an automated system in the Texas attorney general’s office tagged Graves for owing back payments of child support for 1998-2002. Why was he behind? The fact that he was locked up on death row might have had something to do with it. The person most responsible for a lack of support for Graves’ children during that time is former Burleson County District Attorney Charles Sebesta, the man who almost single-handedly forced the Graves case through the courts using lies by the real killer to convict a man with a solid alibi. But we digress.

Graves agreed to have his paychecks garnisheed to pay the child support, but when the state seized an entire check from Prairie View A&M University for a speaking engagement, Graves called foul.

The attorney general’s office shrugged, telling the Houston Chronicle that there was nothing Abbott could do and that the automated system “regularly files wage withholding orders without any involvement from the executive office.” If only payments to exonerees were so automated!

This newspaper has credited Abbott for modernizing the state’s child support collection efforts. That modernization should include the application of basic common sense in a case such as this.

Houston Chronicle journalist Harvey Rice wrote the article, "Freed, but not from his bills: Ex-inmate, like Graves, has been dunned 21 years for child support owed during time he served for crime he didn't commit," for the May 7th paper.

Anthony Graves isn't the only Texan found innocent of capital murder to be billed by state officials for thousands of dollars in child support payments that built up while he was on death row.

The attorney general is seeking more than $4,000 in child support from Graves, but Clarence Brandley, who spent nearly 10 years on death row for a murder he didn't commit, has been paying child support nearly every year since he was released from prison in 1990.

In 30 years on the bench, "… No case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation (and) an investigation the outcome of which has been predetermined," state District Judge Perry Picket wrote about Brandley's case after a hearing in 1987.

To relieve Graves of the responsibility of child support payments, his attorneys are citing a 2007 law enacted because of Brandley's experience that compels the state to take over payments for time spent in prison by the unjustly convicted.

Brandley testified at the hearings, and his attorney, state Rep. Harold Dutton, D-Houston, introduced the legislation.

Dutton said the law came too late to help Brandley. Graves hasn't benefited because state Comptroller Susan Combs must verify his eligibility, but she says the order dismissing his murder charge didn't contain the legally required wording.

Twenty-one years after being freed from prison, Brandley, 59, is still being billed every month by the attorney general's office for his child support payments.

Brandley's paycheck was garnisheed every month until he lost his job in the economic downturn of 2008. He has since lost his car and house, forcing him to live with relatives. But the child support bills keep coming as the interest mounts. The last bill sought a $260 monthly payment on a balance of $12,683.

"I just tear them up," said Brandley, who has lost nearly everything he owns.

Earlier coverage of Graves' exoneration begins at the link.  All coverage is in the Anthony Graves index.  Related posts are in the journalism and  wrongful incarceration indexes.

At the Texas Legislature

"Ellis Urges Lawmakers to Act on Innocence Bills," is the title of Aziza Musa's post at the Texas Tribune.

Charles Chatman spent 27 years in prison for rape after a woman misidentified him in a photo lineup. After DNA testing helped clear his name, a state court ordered his release in 2008. On Tuesday, he and other former prisoners who have been exonerated joined state Sen. Rodney Ellis, D-Houston, in urging House lawmakers to act quickly to pass bills that could help put an end to wrongful convictions. House committees have until May 21 to take testimony on Senate bills. 

"The clock is ticking," said Ellis, who has filed two innocence bills this session, both of which passed the Senate in March but have not made it out of the House Criminal Jurisprudence Committee. "There are less than three weeks left in this session, so further delay is justice denied."

Rep. Pete Gallego, D-Alpine, the chairman of the House Jurisprudence Committee, said he's not purposely holding up any legislation; he said some of his own bills haven't even made it out of the committee. He argued getting bills voted out in the 31-member Senate is much easier than in the 150-member House, particularly given how tense deliberations are in the lower chamber these days.

"Even being able to navigate them out of calendars" is a feat, Gallego said. "Relationships are fragile; tensions are high."

One of Ellis' bills would require police departments to adopt a written eyewitness identification procedure; the other would allow post-conviction DNA testing with the latest technology if DNA samples were not previously obtained from the prisoner.

The state of Texas has had more wrongful convictions — at least 44 have been identified — than any other state, and about 86 percent of them are due to misidentification, Ellis said. He filed a similar bill last session, but it stalled behind other legislation in the House. A similar House eyewitness ID bill was heard in the Senate Criminal Justice Committee late Tuesday.

And:

Cory Sessions, policy director for the Innocence Project of Texas, accused legislators of playing political games and demanded that they pass the innocence bills. Sessions is the brother of Timothy Cole, who was posthumously exonerated for a rape he was convicted of in 1986. Cole died of an asthma attack in 1999 while serving his sentence.

Earlier coverage of the Texas legislation begins at the link. The Timothy Cole Advisory Panel on Wrongful Convictions made a series of legislative recommendations dealing with root causes of wrongful convictions.

Georgia Lethal Injection Challenge

Today's Atlanta Journal-Constitution reports, "Death-row inmate files suit over lethal-injection drugs."  It's written by Bill Rankin.

A Georgia death-row inmate has filed a lawsuit that contends any changes being made to Georgia's lethal-injection procedure should be opened to public scrutiny.

The suit, filed last week by Cobb County convicted killer Andrew DeYoung, contends the Department of Corrections must follow the Administrative Procedure Act when it changes the way it executes condemned inmates. A Corrections spokeswoman said Monday the agency declines comment.

Corrections general counsel Rob Jones recently said the agency may soon switch to the barbituate pentobarbital, which has been used in Ohio and Oklahoma, as a replacement for sodium thiopental, which is no longer made in the United States.

The Drug Enforcement Administration recently confiscated Georgia's supply of sodium thiopental after DeYoung's lawyers questioned whether the state illegally obtained the drug from a pharmaceutical company in London. The seizure put executions on hold.

And:

Despite changing the way Georgia executes people, the agency "evidently has no intention of following the procedures that are required even when agencies promulgate rules governing, for instance, dog catchers, cosmetologists and pest exterminators," the suit said. "Rather, [Corrections] has ignored the requirements of the [Administrative Procedure Act] in its efforts to rapidly implement a new lethal-injection procedure, even during a federal investigation."

"Georgia death row inmate files lawsuit over possible changes to state's execution procedure," is the AP report via the Republic.

Georgia's top prison official is considering a plan that would allow the state to stick with a three-drug combination for lethal injections by substituting a new drug for one seized by federal regulators in March. The proposal would allow the state to use pentobarbital instead of sodium thiopental.

An earlier AP report is, "Georgia plan would keep three-drug executions."  It's by Greg Bluestein and via the Columbus Ledger-Enquirer.

Georgia’s top prison official is considering a plan that would allow the state to stick with a three-drug combination for lethal injections by substituting a new drug for one seized by federal regulators in March, according to documents obtained by The Associated Press.

The proposal, which is being considered by Corrections Commissioner Brian Owens, would allow the state to use pentobarbital instead of sodium thiopental. The AP obtained the documents through an open records request. There is no timetable for a decision, said Georgia corrections spokeswoman Joan Heath.

State corrections officials have been working on the change since the Drug Enforcement Administration took Georgia’s supply of sodium thiopental amid questions of whether the state circumvented the law to obtain the drug amid a nationwide shortage.

Earlier, state officials had visited Ohio, which uses only pentobarbital in lethal injections, and Oklahoma, which uses the sedative as part of a three-drug combination, to study those procedures.

Most 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. announced in January it will no longer make the drug. Several states postponed executions amid the shortage, and some have looked overseas to secure a supply.

Georgia’s situation was made worse when the state had to surrender its stockpile of the drug after defense attorneys questioned whether the state properly registered with the DEA before importing the drug from London. Documents also show the drug was purchased from a London company that operates at the same address as a driving school.

State officials have said they don’t have concerns about the quality of the sodium thiopental and that they are cooperating with investigators. Meanwhile, corrections officials have quietly begun laying the groundwork for a switch, collecting hundreds of pages of legal filings and other documents about the drugs, according to more than 1,000 pages of files reviewed by the AP.

The new procedure would require prison staffers to inject two syringes containing 2.5 grams of pentobarbital each into the death row inmate’s bloodstream, followed by a syringe of saline to ensure a steady flow of the drug. After at least five minutes, staffers would then inject pancuronium bromide to paralyze the inmate and then potassium chloride to stop the heart.

The plan would also require officials to post a certificate from the DEA certifying the drugs were obtained legally at the medical room of the death chamber, which is housed in the Georgia State Prison in Jackson.

Earlier lethal injection coverage from Georgia begins at the link.

Virginia Announces Switch to Pentobarbital

"Virginia to switch execution drugs," is the AP report, via the Richmond Times-Dispatch.

Virginia will join other states that are switching the sedative used in lethal injections because of a nationwide shortage of the drug, officials said Monday.

The Virginia Department of Corrections will substitute pentobarbital for sodium thiopental, whose sole U.S. manufacturer announced in January it would no longer make the drug.

The announcement sent the nation's 34 death penalty states scrambling to find a new supplier. Some canceled executions, while others obtained the drug from England, but then had it confiscated by federal agents amid questions they circumvented the law to obtain it because that country has banned the drug's export for executions.

It is not clear whether Virginia purchased sodium thiopental from overseas, and if so whether the Drug Enforcement Administration also seized its supply.

Department of Corrections spokesman Larry Traylor referred all questions to the attorney general's office, which refused to answer questions about whether Virginia had obtained sodium thiopental from overseas.

Virginia will continue to use a three-drug cocktail, only substituting the sedative drugs, said Brian Gottstein, a spokesman for the attorney general's office. The first drug sedates the inmate, while a second stops his breathing and the third stops the heart.

“The Virginia protocol for lethal injection has been litigated and has been found to be constitutionally acceptable by every court in Virginia that has looked at it … and we are confident that the change to allow the drug pentobarbital to be substituted for sodium thiopental in the protocol will be found to be constitutionally acceptable, as well,” Gottstein said.

The Staunton News Leader rerports, "Va. adds new drug to lethal injection."

State prison officials say they are adding a drug used in physician-assisted suicide to its list of drugs used in executions.

Because of the shortage of Sodium Thiopental, the Department of Corrections said Monday that it is adding the drug Pentobarbital to its list of lethal injection drugs.

Pentobarbital is the same chemical that several other states recently adopted, and its use has been approved by courts, the department said.

The drug has been used in several executions in other states.

Oklahoma executed John D. Duty using Pentobarbital with other drugs in December, and Ohio executed Johnnie Baston using only Pentobarbital in March.

Before the Virginia announcement, Alabama was the most recent state to change its execution drugs.  Related posts are in the lethal injection index.

The Delma Banks Hearing

"Second Death Penalty Fight Begins in Banks Case," is the title of Brandi Grissom's Texas Tribune post.

Delma Banks Jr. sat attentively in his yellow jumpsuit in the courtroom inside the Bi-State Justice Building on Monday as lawyers and experts debated how to make his second face-off with the death penalty a fairer fight than his first.

Thirty years after Banks was first sent to death row, his hair is gray and his face is rounder than when he first sat before a jury as a 21-year-old. Across the courtroom sat prosecutor James Elliott, his long-time antagonist, now white-haired after three decades of fighting to keep Banks on death row. At 52, Banks is facing the same Bowie County district's attorney office that sent him to death row in 1980 for the shooting death of 16-year-old Richard Whitehead. The same office that the U.S. Supreme Court ruled in 2004 committed misconduct when it tried Banks, suppressing evidence and intentionally hiding its mistakes. Banks’ sentence was overturned, and now he and Elliott, one of the original prosecutors, are once again in the same courtroom fighting for their own versions of justice.

A new trial to decide whether Banks should be executed for the 1980 murder is scheduled for October. At a pre-trial hearing on Monday, lawyers for Banks asked Judge Nathan E. White to consider a slew of motions that they argued are crucial to ensure that Banks gets a fair trial, including disqualifying Bowie County prosecutors from representing the state. They also asked the judge to remove the death penalty as an option in Banks’ case and to order a new trial to determine whether he committed the murder. White did not rule on the motions Monday, but the court heard arguments from the lawyers on both sides and from defense experts, setting the stage for the court battles to come.

And:

George Kendall, a New York-based attorney now representing Banks, told the court that Elliott’s comments to the news media, along with the original misconduct, should disqualify him and the entire Bowie County district attorney’s office from the Banks case. “Mr. Banks has been treated very shabbily,” he said. “The prosecution can be a vigorous advocate for the state’s case, but it can’t transcend and not comply with ethical standards and rules of law.”

In court Monday, Elliott refused to take the witness stand as requested by Banks’ lawyers. “I have no intention of testifying,” Elliott told the judge. “I don’t believe it’s proper.”Arguing against the motion, Elliott said that during the original trial he had not known that Farr was a paid informant or that Cook’s testimony had been coached. He said he “didn’t go hunting the press” to talk about Banks’ case but was defending himself against accusations he had prosecuted an innocent man. And finally, Elliott said, he should not be removed from the case because he promised Whitehead’s father he would see it through. “I intend to keep my promise to that dead boy’s father,” Elliott said. “I have lived with this case since its inception. I would respectfully ask the court let me see it through.”

Banks’ lawyers also asked the court to stop the state from seeking the death penalty because so much time has elapsed since the crime. Defense lawyers are required to present mitigating evidence during the punishment phase of a capital trial to help jurors decide whether the convicted person ought to get life or death. That evidence typically includes family, friends, acquaintances, teachers and others who can help the jury understand what the convicted person’s life was like and what might have led up to the crime at hand. Mitigation expert Danalynn Recer, founder of the Gulf Region Advocacy Center in Houston, told the court that finding people and records to tell the story of Banks’ pre-prison life would be nearly impossible given the passage of time.  

“There’s very little that’s been left after all these years,” Recer said, explaining that 82 of Banks’ family members have died since he went to prison in 1980. More than 80 of his neighbors from the tiny town of Nash have died. Most of his teachers and principals are dead, and so are many of his classmates. “Those are the folks who are able to give the jury reasons to choose life,” she said.

Also:

Judge White made no ruling on the motions Monday, but he said the only issue he had questions about was the motion calling for a new guilt-innocence trial. He indicated he was not inclined to disqualify Elliott or the Bowie County district attorneys office from the case.

The article notes that another hearing is scheduled for next month.

Earlier coverage of the Delma Banks case is at the link.  Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

Exoneration Fee Battle Continues

"Exonerated Inmates Fight Lawyer’s Lobbying Fees," is the title of John Schwartz' New York Times report.

If you are a wrongly convicted inmate in Texas and are exonerated,  you stand to receive a very rewarding apology from the state.

Steven C. Phillips, proved innocent of rape by DNA tests in 2008 after serving nearly 25 years, got a $2 million lump sum payment, with substantial annual payments to come.

 But then came a legal bill: $1,024,166.67.

The tab did not come from the lawyer who helped free him. Instead, it came from the lawyer he hired afterward to sue the City of Dallas and the state for his wrongful imprisonment, with an agreed contingency fee of 25 percent of any award.

But no suit was filed on Mr. Phillips’s behalf. Instead, the lawyer, Kevin Glasheen, lobbied the state Legislature to pass a bill that in 2009 increased the payout to exonerated prisoners. What had been a simple payment of $50,000 for every year served became $80,000 for every year behind bars; the bill also called for paying freed inmates an additional $80,000 a year. Those who had been exonerated still had the option of suing, but the richer terms for settling outright significantly shifted the balance of the decision.

It was on that basis, as a successful lobbyist, that Mr. Glasheen claimed a share of Mr. Phillips’s compensation for himself and another lawyer.

Mr. Phillips was astonished.

“I was trembling,” he said. He called his mother and said, “I’m not fixing to give those dudes a million bucks.” So he sued Mr. Glasheen.

So did Patrick Waller, another exonerated inmate billed by Mr. Glasheen who had served nearly 16 years after a false conviction for aggravated robbery and kidnapping. And now so has the state bar association, which asserts that the fees are “prohibited by law” and “unconscionable.”

The disputes have bitterly divided the community of lawyers and activists who struggle to help the falsely accused, and they have brought an uncomfortable spotlight on the practices of some within the Innocence Project of Texas, whose co-founder and chief counsel, Jeff Blackburn, is in line to collect $413,000 of the Glasheen fee for referring the Phillips civil case to him.

And:

Mr. Phillips’s lawyer in the suit against Mr. Glasheen, Randy Turner, called Mr. Glasheen’s actions “obscene.” The Innocence Project “does great work,” he said, but argued that Mr. Glasheen — who in turn sued Mr. Turner for pursuing the case — “wants a million dollars for being a lobbyist when he wasn’t hired to be a lobbyist.”

In fact, the word “lobbying” does not appear in the contracts, and perhaps with good reason. Much of the legal world operates on contingency fees, allowing people with no money to get to court. The lawyer takes on the financial risk and, if successful, reaps a healthy chunk of the reward. But in Texas it is a felony to lobby the Legislature on a contingent-fee basis, because it can skew the incentives underlying public policy.

Mr. Glasheen did not even file the one-page state compensation forms for Mr. Phillips and Mr. Waller, who filled them out themselves. The state bar suit notes that the form can be completed by “a lay person with no legal skill.”

Mr. Turner also disputed Mr. Glasheen’s accounting of the money owed to him, which includes a portion of a lifetime’s worth of annual $80,000 payments. Under the 2009 law, those payments end when the former inmate dies, or if he is convicted of another felony. “Glasheen is attempting to charge Steven 25 percent of the amount that Steven Phillips might, someday, recover if all goes well and he lives to a ripe old age,” he said. The exoneration bill that Mr. Glasheen helped to pass expressly prohibits “assignment” or “encumbrance” of anticipated annuity money.

Charles Silver, a professor at the University of Texas law school, said that whenever a contract is vague, “the fact of the matter is the law tends to favor the clients.” He said he doubted that any court would allow a contingency fee for lobbying, despite Mr. Glasheen’s contention that he operated under a narrow judicial exception to the law. “The Legislature has declared it against public policy,” Professor Silver said.

Also:

State Representative Rafael Anchia, who sponsored the Texas measure that increased the payments to exonerated prisoners, introduced a new bill in the Legislature’s current session that would expressly prohibit the kind of contract that Mr. Glasheen is defending and allow only a simple hourly fee for helping to file the forms. “I’m closing the door on that,” Mr. Anchia said.

Meanwhile, a trial date in the contract dispute, set for June, has been pushed back to January. Mr. Waller said the delay did not worry him. “I’m used to waiting,” he said. “I’ve waited for a better thing, for a longer time.”

Earlier coverage of the fee dispute begins at the link.  Related posts are in the wrongful incarceration index

The Case of Delma Banks

Texas Tribune journalist Brandi Grissom writes, "30-Year-Old Capital Case Returns to Court, With Defense Alleging Bias." for the New York Times

For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16-year-old Richard Whitehead.

The United States Supreme Court overturned Mr. Banks’s death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered their mistakes for decades.

“It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Mr. Banks’s appellate lawyers.

Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Mr. Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Mr. Banks until he “gets what he deserves.”

At a hearing Monday in a Bowie County state district court, Mr. Banks’s lawyers will ask Judge Nathan E. White to disqualify Mr. Elliott and the local district attorney’s office from the case and to assign different lawyers to represent the state.

“Mr. Elliott’s misbehavior proves that he cannot serve as a disinterested prosecutor and is laboring under a conflict of interest that will prevent Mr. Banks from receiving a fair trial,” lawyers wrote in court documents.

Mr. Banks, who is black and was 21 when the crime was committed, was convicted of killing Mr. Whitehead, who was white, so he could take off with his car. The police found Mr. Whitehead’s body in a park near Texarkana and soon discovered that Mr. Banks had been with him on the last night he was seen alive.

There were no witnesses to the killing and no physical evidence linking Mr. Banks to it. The prosecution’s case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Mr. Cook also had convictions for robbery by assault and forgery.

And:

In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Mr. Banks’s lawyers discovered a transcript showing that Mr. Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Mr. Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Mr. Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Mr. Banks, he said, persuading him to drive to Dallas to get a gun.

Prosecutors allowed Mr. Cook and Mr. Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Mr. Cook denied on the stand that anyone had helped him with his testimony, and Mr. Farr said he had not been paid for his help in the case. During closing arguments, Mr. Elliott told jurors that they should believe Mr. Cook and Mr. Farr.

In arguments before the Supreme Court, state lawyers did not dispute that Mr. Cook had been coached and that Mr. Farr was paid for his help. But they said Mr. Banks’s lawyers were at fault for not uncovering the information sooner.

The Supreme Court ruled that without the testimony of Mr. Cook and Mr. Farr, Mr. Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’ ” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

Mr. Elliott declined to comment last week about the case. “We’re in litigation,” he said. “The newspaper is the wrong place to be trying cases — it just is. So I can’t give any comment.”

A slightly different version, "Death Row Inmate Faces Same Prosecutors Who Committed Misconduct," at posted at the Tribune.

Banks’ lawyers are also asking the court to throw out the guilty verdict and order a new trial. They contend that the perjured testimony of Cook and Farr and the prosecutors’ withholding of facts also affected their client's ability to defend himself. “Because of the state’s purposeful suppression and misconduct, Mr. Banks was surely denied the full defense available to him,” his lawyers argue in court pleadings.

Owen, of the Capital Punishment Center, said police and prosecutorial errors raised serious questions about whether Banks had actually committed the murder. “In a case where the evidence of guilt is so very thin, and the misconduct by the prosecution is so far-reaching and well-documented,” he said, “there’s no reason for any court to have any confidence the conviction is solid.”

Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

Fatal Errors

That's the title of an editorial from the Sunday Houston Chronicle on the cases forensic psychologist George Denkowski worked on for Harris County.  It's subtitled, "Death row inmates, qualified for execution by discredited psychologist, deserve review."

In 2002, the U.S. Supreme Court came to the just decision that prisoners who are mentally incompetent cannot be executed for their crimes. But Texas prosecutors found an ally in Fort Worth psychologist Dr. George Denkowski, who could generally be trusted to find defendants mentally qualified to be executed.

In the past several years, he evaluated 27 Harris County inmates, the majority of whom he found death-penalty eligible. Of those, 13 are still on death row, one is in the county jail pending a punishment-phase retrial, and one has been executed.

His methodology has raised numerous complaints both locally and nationally: He used a system of scoring that critics claimed artificially inflated IQ and adaptive behavior scores so as to qualify defendants for the death penalty. He said, in a 2008 article, that traditional tests ignored social and cultural factors, so that a lack of basic skills could come from an impoverished environment rather than diminished mental capacity. (The 2010 manual of the American Association on Intellectual and Developmental Disabilities strongly urged caution in using Denkowski's methodology until it could be "firmly supported by empirical evidence.")

Finally, last month, the state Board of Examiners of Psychologists reprimanded Denkowski, fined him $5,500, banned him from performing such evaluations in the future, and dismissed all the complaints against him.

Among the many complaints, reported the Texas Tribune, was one in 2007, when a state district judge threw out Denkowski's evaluation of death row inmate Daniel Plata, saying that it "must be disregarded due to fatal errors in … administration and scoring." In 2006, Denkowski rejected several test scores on another death row inmate, Steven Butler, that indicated he was well below average intelligence, and discounted examples of his limited intellect from family and friends.

But even more dismaying than Denkowski's testing methods is that the state board settlement stipulates that the agreement cannot be used in death penalty appeals.

So while Denkowski has been discredited and barred from testifying in such cases ever again, the men he has succeeded in keeping on death row — many of whose appeals have been on hold - could be procedurally barred from pursuing appeals unless legislative action is taken.

Several attorneys say that, even so, they will attempt reviews of those cases. That's exactly what should happen, says Democratic state Sen. Rodney Ellis, who serves on the Criminal Justice Committee and chairs the Innocence Project board.

And:

It is almost a decade since the U.S. Supreme Court barred execution of the mentally impaired, yet that could be what we are facing in Texas unless our legislators and our courts take action to enable review of these cases.

We strongly urge them to do so.

This morning's Chronicle has fresh reporting on the topic by Mike Tolson, "Retardation issue set for 2nd round in courts."

Some called him Dr. Death, a latter-day incarnation of a psychologist who a generation earlier earned the title by repeatedly testifying for the state in death penalty cases.

Whether Fort Worth psychologist George Denkowski deserved the dubious honorific can be debated, as his work was not always friendly to the prosecutors who hired him. But no one doubts that he had an impact. When the state's capital punishment machinery was thrown into disarray by a U.S. Supreme Court decision banning execution of the mentally retarded, Denkowski was willing to help restore order. By the time he was done — albeit discredited, scorned by peers in his field and reprimanded by a state licensing board — more than a dozen men were kept on or sent to death row and his bank account was significantly fatter, $300,000 to the good for his work in Harris County alone.

Now courts are being asked to sift once again through claims of retardation, as attorneys for the condemned whom Denkowski evaluated for the state insist they should get a second chance because of his invalid approach to intelligence testing.

"These cases need to be reviewed," said Kathryn Kase, a senior attorney with the Texas Defender Service who has been tracking Denkowski's work for years. "This is akin to the DNA coming back negative and seeing that the (Houston Police Department) crime lab was doing a shoddy job. Now that we found out about the problem, we should do something about it."

Whether anything would turn out different the second time around is questionable. Appeals courts are obliged by law to give deference to the original finding, which puts defendants behind the 8-ball to begin with. And the inmates at the center of the dispute live in a legal twilight zone of borderline retardation. Their degree of impairment is an inherently squishy matter. Who meets the criteria and who doesn't varies from test to test and expert to expert, with even credible experts disagreeing and judges or jurors left to sort through complicated testimony.

Still, the lawyers who handle death row appeals want another shot, even if it's a long shot.

"Neither the state nor the trial judges appreciated how off Dr. Denkowski's testimony was," said Patrick McCann, who represents Calvin Hunter. Denkowski revised Hunter's tests upward, in part because Hunter was in handcuffs and could not answer questions quickly enough.

And:

Veteran defense lawyer Stanley Schneider is still stung by the rebuffed appeal of his client, John Matamoros, who murdered Edward George Goebel during a 1990 burglary of his home. He called Matamoros an ideal candidate for Atkins relief - evidence painted him as a dysfunctional, intellectually challenged man who failed academically from his earliest days, was endlessly teased for being "dumb" by classmates as a youth, never made it to high school, showed such poor personal hygiene that for many years he required help bathing and cleaning up after going to the bathroom, and came from a family with many mentally challenged members.

Easily manipulated by others and seeking approval through criminal acts like stealing cars, Matamoros got into trouble with the law as a teenager and never stopped. He was diagnosed as mildly mentally retarded at 14 by a psychologist hired by juvenile authorities.

Enter Denkowski, who said the old 1977 retardation finding was invalid because the testing did not include a battery of tests of "adaptive behavior" that are now standard protocol. He said bilingualism in the home could have improperly suppressed intelligence scores, despite ample evidence that English was spoken mostly at home and exclusively in school. And he said other doctors did not properly adjust their findings to "give credit for anti-social behaviors which he executed successfully" - a reference to his ability to steal cars and drive them home.

Denkowski testified that the IQ tests that showed Matamoros' academic skills stalled at a second-grade level were simply too low to be believed.

"Because of Denkowski, Matamoros may die," Schneider said. "Three psychologists looked at him post-Atkins and said he was mentally retarded. A doctor who tested him when he was 14 said he was mentally retarded. On the other side is Denkowski.“

Prosecutors turned to Denkowski and other experts not only to criticize those tests but to use a defendant's performance of so-called adaptive behaviors - how a person functions and comes across in many aspects of daily life - to push him across the nebulous threshold of mild retardation into the realm of slow but normal. Sometimes, of course, that's a distinction without practical difference. As Benjet and countless experts in the field of intellectual impairment point out, there is nothing obvious that distinguishes those labeled mildly retarded from those of similar intellect who are not.

"Is there a real difference between someone with an IQ of 67 and one who is at 71? No," said Bryce Benjet. a former appellate specialist who was involved extensively in Atkins litigation before turning to civil practice. "This issue stresses the criminal justice system in a way that other issues don't. In no other instance is there a legal standard that is a medical diagnosis."

Earlier coverage of the Denkowski sanction begins at the link.  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 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.

Judges Behaving Badly

"Pa high court chides judge for deleting 'non-judicial' remarks from death-penalty transcript, is the AP report filed by MaryClaire Dale.  It's via the Republic of Columbus, Indiana.

A Philadelphia judge deleted disparaging comments she made about a defendant in court from the official transcript of the man's death-penalty appeal, an alteration the state Supreme Court called "reprehensible" as it removed her from the case.

Judge Renee Cardwell Hughes admits that she ordered a court reporter to delete what she calls "non-judicial" remarks, including calling the defendant "vile," the high court ruling said.

The deletion came to light when lawyers seeking to quote her comments in their appeal noticed that they were missing from the transcript. The lawyers raised the issue a later hearing before Cardwell Hughes.

"I told (the court reporter) to (remove) words that are less than judicial because I'm Southern and I say words like flipping or sucker ... ," the justices quoted Cardwell Hughes as saying during that hearing in their ruling last week.

The high court also faulted her for lambasting defense lawyers who asked her to step down from the case at a 2008 post-conviction hearing.

Cardwell Hughes refused, saying she could separate her "personal opinion of a person who toasted a house with children in it" from the evidence.

In a concurring opinion, Justice Max Baer noted that Cardwell Hughes has repeatedly grilled lawyers who ask that she recuse herself because of potential conflicts.

"Another similar incident should result in disciplinary proceedings against her," Baer wrote.

That point is now moot as the 55-year-old judge is leaving the bench after 15 years to become chief executive officer of the Southeastern Pennsylvania chapter of the American Red Cross.

And:

The Supreme Court issued its ruling April 28 in the death-penalty appeal of Daniel Daugherty.

Daugherty was convicted in her courtroom in 2000 of killing his two children in a 1985 arson. His second wife, during a divorce and custody dispute, said he had confessed to the crime. The mother of the children supports his innocence claims.

On appeal, his lawyers argue that his trial lawyer was ineffective, and that he was convicted based on junk science.

At a post-conviction hearing in March 2008, Cardwell-Hughes told the defense it was her job "to defend the decision of my jury," according to Supreme Court Justice Thomas G. Saylor's concurring opinion.

From Florida, Diane Dimond post, "The Casey Anthony Circus Begins," at Daily Beast.

Jury selection in the capital murder trial of Casey Anthony is set to begin Monday at an undisclosed location in Florida. The judge has agreed to try to choose a jury from outside the Orlando hot-zone of this case—a hat tip to the fact that as legal circuses go, this one may top them all.

And:

Superior Court Judge Belvin Perry rejected the defense team's request to change the venue for the trial, but then agreed to change the venue for jury selection. The actual location of the jury selection won't be officially revealed until Sunday, the day before it is set to begin.  Judge Perry says he doesn't want to alert any particular community that its citizens are about to be chosen for a most inconvenient task—to be a juror on the state's most notorious murder case which will require them to be  bused back to Orlando and sequestered for the two or three months this trial will take.

"I've never heard of this happening," jury consultant Richard Gabriel told The Daily Beast. Gabriel's L.A.-based firm Decision Analysis has worked pro-bono for the Anthony defense team.

"I don't understand what Judge Perry thinks he's achieving (since) this has been a statewide phenomenon,” he adds.  “We've talked a lot about logistics in this case but what I don't think has been considered is the immense psychological pressure that will be put on these jurors ... not only being on a murder case but a death penalty case.  And, also to be separated from their homes and friends and family and communities, it's an enormous amount of pressure on an individual."

Recently Perry was seen in the lobby of the Palm Beach County courthouse in the company of the Chief Judge Peter Blanc and several sheriff's officers.  When approached, the Palm Beach Post reports Perry motioned to Blanc and only offered, "I'm just here with my friend."

Whether the actual location will be Palm Beach or another county with similar demographics,  Perry has told the lawyers he's set aside "five days" to pick this jury. Critics say that's simply not enough time to choose a properly vetted jury for a death penalty case.  But the judge has assured the lawyers that, "If progress is being made we will stay," and keep working. If no progress is seen, Perry has declared they will all head back to Orlando where, presumably, the jury selection will start anew with a ground zero jury pool that has been submersed in the mire of this case since July 2008 when police first got the call that little Caylee Marie Anthony was missing.

"They've exposed so much in this case! It's been a three-year long public assault on (Casey Anthony) day after day. I don't know how this woman will get a fair trial," prominent Miami-based criminal defense attorney Roy Black told The Daily Beast. Black has represented several high-profile defendants, including William Kennedy Smith on rape charges in 1991, and says he is dumbfounded about the refusal to change the venue.

"The judge is delusional,” he adds. “I don't see how you can have such ugly allegations—a mother killing her child and all the lies she's allegedly told.  If you want to close your eyes and ignore the facts then have it in Orlando. But a fair trial? It can't be done that way."

Related posts are in the judiciary index.

In Florida

"Vindictive speaker helps abolish the state death penalty commission," is the title of Paul Flemming's column in the Fort Myers News-Press.

How much is life-and-death information worth? We have an answer: $370,000.

That, apparently, is too much.

The Florida Commission on Capital Cases was eliminated Thursday in an unexpected, undiscussed, unfathomable conference of legislators.

The House put into a budget conforming bill - late in the session, without any previous hearings, at an Appropriations Committee meeting - repeal of the state law that created the commission.

Among its duties, the commission maintains detailed case-status information on people condemned to die. Web pages providing that information have had 800,000 visitors. Now it won't exist.

It provides unique Continuing Legal Education courses for capital-defense attorneys.

The commission provides the governor's office with information on death row inmates who have exhausted their appeals and are eligible for death warrants.

The elimination of a single $370,000 appropriation is miniscule in a $70 billion budget that will get rid of more than 4,500 state positions and cut plenty of important spending.

So, the death of the commission and its five staffers is a common enough story.

But it gets nuttier.

Speaker Dean Cannon isn't going to get the full measure of his top priority for this legislative session, the dismantling of the Florida Supreme Court and building it back up in his own imagination.

He wanted to increase the number of justices to 10 and split the court in two, one division for criminal cases, another for civil litigation.

The speaker's idea would have swept clean the judge and justice selection process while centralizing the power for choosing jurists with the governor.

The House passed its speaker's grand plan. The Senate balked.

Related posts are in the state legislation index.  Earlier coverage from Florida includes:

• Revised Florida Plan to Restructure Courts Advances
• Eyewitness ID Reform Active in Florida

9th Circuit Miranda Case

The Recorder, Law.com California paper, reports, "Ninth Circuit Reaffirms Habeas Relief After High Court Reversal."  It's written by Ginny LaRoe.

The Ninth Circuit U.S. Court of Appeals today refused to back off its decision to grant habeas relief for a teenage mass murderer despite being told to reconsider by the Supreme Court. For the second time, a split en banc panel held that the suspect was improperly informed of his Miranda rights and that his confession was not voluntary.

Despite direction from the Supreme Court to review that holding in light of a recent Miranda-related opinion, Florida v. Powell, the majority again held that 17-year-old Johnathan Doody's advisement of rights "completely obfuscated the core precepts of Miranda," and that the "relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

Doody was convicted of taking part in the murder of nine people, including six monks, whose bodies were found face down in a circle, each with a bullet to the head, in a Buddhist temple in Arizona in 1991.

In a concurrence, Chief Judge Alex Kozinski explained that Powell doesn't change the analysis, rather it "reaffirms the standard for determining Miranda compliance that its prior cases had established." And the facts in Powell are different in that the High Court said any misleading Miranda statement was cured by a final warning that the suspect had a "right to use any of these rights at any time."

"Not so here," Kozinski wrote in Doody v. Ryan. "The Miranda warnings Doody was given were affirmatively misleading."

Enter Judge Richard Tallman and his colleagues in dissent. They began by noting the "Supreme Court has repeatedly told us to adhere to the highly deferential standard of review of the state court judgments" required under the Antiterrorism and Effective Death Penalty Act in federal habeas cases.

And:

In response, Judge Johnnie Rawlinson colorfully wrote for the majority in the first opinion, and left intact today: "The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye."

"9th Circuit rules, for third time, that Thai teen's confession in slayings was invalid," by Carol J. Williams for the Los Angeles Times.

The appeals court ruled that Maricopa County sheriff's deputies distorted their reading of Doody's Miranda rights, telling him he was entitled to an attorney only if he had committed a crime.

The 8-3 ruling by a full panel of the western appeals court was identical to one the judges issued last year, deeming Doody's confession to the killings after 13 hours of interrogation involuntary and inadmissible in any subsequent trial of the now-36-year-old defendant.

Arizona authorities had appealed the 9th Circuit's ruling last year to the Supreme Court, which sent the case back with an order to reconsider whether the confession should be judged as voluntary in light of a similar case from Florida in which the high court ruled that a suspect's confession was valid.

Wednesday's ruling said the 9th Circuit judges reviewed the high court's position in Florida vs. Powell, about a criminal defendant's right to have an attorney present during interrogation, but still concluded that Doody's rights were violated. The appeals court ordered Arizona authorities to free him or try him again for the killings without the confession.

Courthouse News Service reports, "Conviction for Temple Murders Stays Vacated."  It's written by Barbara Leonard.

A full panel of the 9th Circuit on Wednesday reaffirmed its 2010 decision to vacate the conviction of a man who confessed as a teen to participating in the 1991 murders of nine people, including six Buddhist monks, at an Arizona temple.

In 67-page decision, which prefaces a nine-page concurrence from Chief Judge Alex Kozinski and a 39-page dissent on behalf of three judges, the court notes that its original en banc panel in Seattle "held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

At 113 pages in total, Wednesday's decision just tops the 106-page ruling from the 8-3 court in February 2010.

Johnathan Doody was a 17-year-old high-school student when he confessed to participating in the 1991 murders at the Wat Promkunaram Buddhist Temple near Phoenix. The victims, including six Buddhist monks, two nuns and a novice, were found lying face-down in a circle, each shot in the head.

Doody was arrested and later convicted for all nine murders. He was sentenced to 281 years in prison. Another minor, Alessandro Garcia, testified against Doody and was also convicted as an accomplice after pleading guilty. Garcia was sentenced to 271 years.

A three-judge panel of the 9th Circuit reversed the District Court's denial of Doody's habeas petition in 2008, and the full court ruled that Doody deserved a new trial because he was prejudiced by extensive interrogation and inadequate Miranda warnings.

Death Row's Delays

That's the title of an editorial in today's Los Angeles Times.  The subhead is, "California should take a cue from other states that have dealt with the issue of capital punishment: Just abolish it."

Last year, California added 28 inmates to the state's death row, eight of whom were sentenced in Los Angeles County. They aren't in much danger of an early demise, however, thanks largely to legal delays, including a decision Tuesday by state officials not to pursue executions in 2011. The seemingly never-ending court battles mean that convicts in capital cases are far more likely to die of natural causes than by lethal injection. But that won't stop them from costing taxpayers an estimated three times more than other inmates.

Not for the first time, this gives us cause to wonder what good the death penalty in California is doing. Gov. Jerry Brown also personally opposes death sentences, though he appears to lack the courage of his capital convictions. The solution is in plain sight and has been pursued successfully by other states, including Illinois earlier this year: Abolish capital punishment.

The budget-minded Brown last week canceled plans to build a new death row at San Quentin State Prison, noting that it was hard to justify spending $356 million on housing for convicted murderers while services for children, the disabled and seniors were being slashed to the bone. Fair enough. But deferring the problem won't make it go away, as California lawmakers discovered after their practice of ignoring a worsening prison overcrowding crisis was finally ended when federal judges declared the state guilty of unconstitutionally cruel punishment. Similarly, the state can't go on adding to the death row population indefinitely while failing to address San Quentin's severe capacity and design problems.

There are 713 inmates on death row, yet the state hasn't executed anyone since 2006 (29 have died of natural causes since then). Confronted with similar costs and delays, along with evidence that some death row inmates had been wrongfully convicted, four states have abolished the death penalty since 2007. In Illinois, Gov. Pat Quinn dealt with existing death row inmates by commuting their sentences to life without parole, an elegant solution that would end California's legal and budgetary problems at a stroke.

Bob Egelko writes, "California moratorium on executions is prolonged," for the San Francisco Chronicle.

The state will not be ready to defend its new lethal injection procedures in court until early next year, prolonging a moratorium on executions in California that has been in effect since January 2006.

State lawyers told a federal judge last week that San Quentin's new warden, Michael Martel, needs more time to select a new team of guards to carry out executions.

Deficiencies in staff training and supervision were among the factors cited by U.S. District Judge Jeremy Fogel when he ruled in 2006 that the state's lethal injection methods posed an undue risk of a botched execution that would leave the inmate conscious and in agony while dying.

Fogel halted the scheduled February 2006 execution of Michael Morales, who had been convicted of raping and murdering a Lodi teenager in 1981, when prison officials were unable to find medical personnel willing to monitor the injections. Other Death Row inmates have joined Morales' challenge to the state's procedures.

The case has since been tied up in state and federal courts as prison officials adopted new procedures, belatedly sought public comment and appealed unfavorable rulings.

And:

Martel, appointed warden of San Quentin in March, will need until August to select a new execution team, Deputy Attorney General Michael Quinn told Fogel.

He did not say why Martel was replacing the team that was prepared to execute Albert Greenwood Brown, a convicted rapist and murderer from Riverside County, in September before the courts intervened. Terry Thornton, spokeswoman for the Department of Corrections and Rehabilitation, offered no explanation Wednesday.

"He's the new warden. He's responsible for everything that goes on at San Quentin. It's his prerogative," she said.

Even if Fogel rules that the new procedures comply with the constitutional ban on cruel and unusual punishment, appeals to higher courts will almost certainly delay the next execution until at least mid-2012.

Inmates will also seek clemency from Gov. Jerry Brown, who opposes capital punishment but has said he will not grant blanket commutations of death sentences.

There was additional coverage yesterday.  Carol J. Williams wrote, "California backs off on plan to resume executions this year," for the Los Angeles Times.

California officials have backed off a drive to resume executions this year, asking a federal judge to delay until at least January his review of revised lethal injection procedures.

The delay means that the state will have gone at least six years without executing any condemned prisoners, who now number 713.

The California Department of Corrections and Rehabilitation requested more time because San Quentin State Prison's new warden, Michael Martel, wants to recruit a new execution team to replace the one that was assembled and trained last year, according to court documents.

U.S. District Judge Jeremy Fogel expressed frustration that the state has taken so long to fix lethal injection procedures, which he concluded might have subjected inmates to intense pain in violation of the Constitution's prohibition of cruel and unusual punishment. He made that ruling in December 2006 after putting executions on hold 10 months earlier.

"When the public looks at this and they say, 'Well, why aren't there any executions?' all they know is that it's taking five years to get to closure in this case," Fogel told attorneys for the state and the prisoners, according to a court transcript made public this week.

The development comes on the heels of Gov. Jerry Brown's decision last week to scrap construction of a new $356-million death row facility.

"California executions remain on hold for this year," by Howard Mintz for the Silicon Valley Mercury News.

Lawyers for the state and for death row inmates revealed during a conference with a federal judge last week that they will not be ready for a hearing in the case until at least December, according to a transcript of the proceeding released Monday.

The primary holdup in the case is that San Quentin's warden is selecting a new execution team, and prison officials will not finalize that process until this summer. As a result, lawyers in the case told U.S. District Judge Jeremy Fogel that they must postpone the final round of hearings in a five-year legal battle over whether California's lethal injection method is constitutional.

The delay is not unexpected, given that Fogel hinted at the possibility when he toured the state's new death chamber in February. Fogel agreed to hold off on moving the case forward, but he expressed concern about how the postponements appear to a public weary of delays in resolving the legal conflict. California now has more than 700 inmates on death row.

"Frankly, the public looks at this and they say, well, why aren't there any executions?" Fogel told the lawyers at the conference. "All they know is that it is taking five years to get closure in this case."

Fogel more than four years ago found California's execution procedures rife with problems and effectively put executions on hold. Gov. Arnold Schwarzenegger's administration responded with new procedures, including building a new death chamber and upgrading training for execution team members, but those procedures got entangled in a separate legal battle in the state courts.

State officials tried to carry out an execution last fall, when condemned killer Albert Greenwood Brown was hours from execution, but a federal appeals court intervened and ordered Fogel to resolve the lethal injection case once and for all. State officials have assured Fogel that they will not seek another execution date until he rules on the legality of the lethal injection method.

Earlier coverage from California begins at the link.

Arkansas Execution Stayed

"AR Supreme Court grants stay of execution for Frank Williams Jr; killer was set to die June 22," is the breaking news from the Associated Press.  It's via the Republic of Columbus, Indiana.

The Arkansas Supreme Court has granted a stay of execution for a convicted murderer who was scheduled to die by lethal injection on June 22.

The court issued a one-paragraph order Thursday granting the stay for Frank Williams Jr.

The court said it was granting the stay because two appeals involving constitutional issues regarding the death penalty are pending before the court.

The justices didn't specify which lawsuits were in question. Williams is involved in two court actions, one of which challenges a drug used in the lethal injection process.

The Arkansas Supreme Court order is available in Adobe .pdf format.  The article notes that the state's last execution was in 2005.

Earlier coverage from Arkansas begins at the link.

Tennessee - Alabama Drug Shuffle

This morning's Tennessean reports, "Tennessee shared lethal injection drugs."  It's written by Brian Haas.

Jason Oric Williams’ life hangs in limbo on death row in Alabama.

First, his state didn’t have enough sodium thiopental to administer a lethal injection, so it turned to Tennessee.

Tennessee agreed to give Alabama what it needed to execute Williams on May 19 if Alabama would return the favor in the future. Alabama agreed, so Williams’ execution was back on track. He has been on death row since 1992 after killing four people during a shooting spree in Mobile County.

Then, federal agents seized lethal injection drugs from Alabama and Tennessee after attorneys around the country raised questions about who was supplying the drugs to death penalty states and whether the sharing of sodium thiopental among states was legal. Attorneys fighting to stop the executions argue that states have been illegally importing sodium thiopental from overseas companies that do not have permission to sell the Schedule III drug in the United States.

Tennessee said it has a DEA permit to handle sodium thiopental and that its actions were all above board.

“We have not acted illegally,” said Dorinda Carter, spokeswoman for the Tennessee Department of Correction.

And:

Some states have abandoned sodium thiopental in lethal injections.

After its supply was seized, Alabama decided to replace it with pentobarbital, an anesthetic sometimes used in animal euthanasia. Pentobarbital already has been used for recent executions in Oklahoma and Ohio.

Unless the Alabama Supreme Court intervenes, Williams will become the first inmate in Alabama to be executed using pentobarbital.

An attorney for Williams said he will ask the courts to stop Williams' execution.

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

On Tuesday, Texas used pentobarbital to execute a man convicted of raping and strangling a woman in 2001. Cary Kerr, 46, was the state’s first inmate put to death using the new three-drug cocktail.

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