The StandDown Texas Project

Thursday

More travel, today. Enjoy the Daily Must Reads and other blogs listed in the left column.

Check back later today.

Wednesday

I am out of the office this morning.  Posting will resume this afternoon.

Questions Surround Georgia Execution - A Human Experiment?

"Ga. execution is fodder for challenges to new drug," is the title of Greg Bluestein 's AP post this evening.

The thrashing, jerking death of Roy Willard Blankenship has lawyers for death row inmates plotting fresh arguments against the drug used to execute him, even though they may never be able to prove that it caused the spasms in his last moments.

Medical experts say it's possible that Georgia prison staff botched the procedure last week using a controversial new sedative, that Blankenship had some sort of jarring reaction to the drug, or even that he faked it. Still, defense attorneys around the nation say they plan to cite Blankenship in requests to stop executions using pentobarbital, a chemical being adopted by a growing number of states as they run out of another commonly-used drug.

Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital on Thursday in Georgia's death chamber. Inmates are usually much more still during a lethal injection, but medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.

"As he's going to sleep, there could be many kinds of reactions. He could have had the same reaction with sodium thiopental," which was once the predominant execution drug, said Dr. Howard Nearman, who chairs the anesthesiology department at Case Western Reserve University's medical school. "And he could have been faking it. Anything's possible."

Georgia's prison department has stopped short of publicly launching an investigation, but said in a statement it will work with the state attorney general's office to ensure "execution procedures are medically appropriate."

Whatever conclusions the state reaches, defense attorneys said they are planning to invoke Blankenship's execution in court filings as evidence that pentobarbital could violate the ban on cruel and unusual punishment.

"It is clear that something went very wrong during the Blankenship execution and lawyers challenging lethal injection in other states will be taking a very close look at what happened," said Ty Alper, a California attorney who represents several death row inmates and works with the death penalty clinic at the University of California-Berkeley.

The execution of Blankenship, condemned for the 1978 murder of an elderly Savannah woman, was the first in Georgia using pentobarbital as part of a three-drug execution combination. The state was forced to switch after it surrendered its supply of sodium thiopental to federal officials amid an investigation into how the drug was obtained.

Earlier coverage of this week's Georgia execution begins at the link.  Related posts are in the lethal injection index.

Rhode Island and Federal Government in Dispute Over Death Penalty

Today's Providence Journal reports, "Faceoff looms over suspect."  It's written by Katie Mulvaney.

U.S. Attorney Peter F. Neronha’s office moved Monday to secure a court order requiring the state turn over an accused bank robber and murderer to federal authorities so he could face trial — and possibly the death penalty — for his alleged crimes.

Assistant U.S. Attorney Adi Goldstein petitioned U.S. District Court for a writ of habeas corpus demanding that the state place Jason W. Pleau in federal custody so he can be tried for conspiring with a Massachusetts couple to rob and murder a gas station manager as he went to make a bank deposit in September.

The prosecutor’s request comes days after Governor [Lincoln] Chafee refused to hand Pleau over to the federal government. To do so would go against Rhode Island’s longstanding rejection of capital punishment, Chafee said.

Hours before the petition was even filed, Pleau’s lawyers called on Judge William E. Smith to reject it. Short of that, David P. Hoose and Robert B. Mann, Pleau’s lawyers, requested a hearing.

And:

Chafee said his decision to refuse to place Pleau in federal custody was motivated, in part, by Pleau’s lawyers’ representations that he is willing to plead guilty to murder and robbery in state court in exchange for life in prison without the possibility of parole.

Also:

The Rhode Island Council of Churches and the Rhode Island Affiliate of the American Civil Liberties Union, meanwhile, joined a half-dozen other groups in praising Chafee and urging Neronha to stop any efforts to seek the death penalty against Pleau.

“The governor’s courageous action reflects and renews this proud heritage. In saying this, we do not in any way seek to minimize the tragedy that David Main’s family has suffered. But we cannot condone the federal government’s blatant effort to impose on our state a policy that Rhode Island has rejected for more than a century-and-a-half,” the groups wrote.

New Developments in a Long Running Kentucky Death Case

The AP report is, "Long-time condemned Ky. inmate wins new trial," by Brett Barrouquere.  It's via the Greenwich Time.

A Kentucky inmate on death row for 29 years has been granted a new trial by a federal appeals court that found problems with the trial judge's legal interpretations and an argument made by prosecutors about a claim of extreme emotional distress at the time of two slayings.

A split U.S. 6th Circuit Court of Appeals on Monday ordered 62-year-old David Eugene Matthews retried within 180 days in the death of his estranged wife Mary "Marlene" Matthews, and mother-in-law, Magdalene Cruse in Louisville, on June 29, 1981.

Judge Eric Clay wrote that the trial judge misinterpreted Kentucky's law on an extreme emotional distress defense and allowed prosecutors to claim during closing arguments that Matthews and his attorneys concocted the issue in an attempt to avoid conviction.

"The prosecutor's comments during closing arguments regarding (Matthews') supposed exaggeration of EED, and collusion with his attorney and doctor, were both improper and flagrant," Clay wrote.

Clay, joined by judge Karen Nelson Moore, also ordered the state to determine if Matthews can legally be retried or must be released because the constitutional prohibition on being tried twice for the same crime applies in this case.

And:

Kentucky has executed three men since 1976. The last person executed was Marco Allen Chapman by lethal injection in November. The state currently has 34 people on death row.

The 6th Circuit opinion in Matthews v. Parker is avaialble in Adobe .pdf format.

A Leal Update

"High Court Asked to Stay Execution of Mexican National," is the title of Mark Hansen's post at the ABA Journal.

Lawyers for a Mexican national on Texas' death row petitioned the U.S. Supreme Court today for a stay of the inmate's scheduled July 7 execution.

The petition has the backing of the Mexican government, which is expected to file an amicus brief in the case later today calling on the United States to live up to its treaty obligations with other countries, according to a press release from the inmate's lawyers.

The Petition for Writ of Certiorari and the Motion for Stay are available in Adobe .pdf format.

Attorneys for Leal have issued a news release, "U.S. Supreme Court Urged to Stay Execution of Humberto Leal Garcia Whose Consular Rights were Violated."  Here's the full text:

(Washington, D.C., June 28, 2011) Today, attorneys for Humberto Leal Garcia and the Government of Mexico are jointly appealing to the U.S. Supreme Court to stay Mr. Leal’s July 7 execution.

Attorneys for Mr. Leal filed a petition for writ of certiorari and a stay motion in the U.S. Supreme Court, arguing that the Court “must not allow Texas to subvert Mr. Leal’s constitutional rights and the compelling institutional interests of Congress and the Executive in a race to execution, particularly given the overwhelming public interest in achieving compliance with the Avena Judgment.”  The Government of Mexico, in an amicus curiae brief that will be submitted to the Court later today, will note that the United States has been a forceful advocate for U.S. nationals detained in Mexico, and is expected to call upon the United States to live up to its treaty commitments.

The petition and stay motion are attached. The amicus brief will be distributed later today.
 
The documents filed by Mr. Leal’s attorneys point out that the "Consular Notification Compliance Act" would allow for judicial review of Mr. Leal's case and the cases of forty other Mexican nationals on death row who were denied consular access at the time of their arrests, and would bring the U.S. into compliance with Article 36 of the Vienna Convention. The legislation has widespread support from the U.S. government, including the Department of Defense, Department of Justice, Department of Homeland Security, and Department of State.

The petition concludes, “If denying Mr. Leal the review and reconsideration of his conviction and sentence ordered by the ICJ is so important as possibly to justify the serious harm to U.S. interests identified by the President, this Court, and many, many others that would follow from that treaty breach, that judgment should be made by the U.S. Congress, not Texas.  The United States’ word should not be so carelessly broken, nor its standing in the international community so needlessly compromised.” 

Prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad, agree that Mr. Leal's execution should be stayed to allow time for Congress to remedy the consular violations in his case. These diverse groups have expressed concern that if Mr. Leal is executed despite the violations, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries and all Americans abroad will be put at risk.

In 2004, the International Court of Justice (ICJ) held that Mr. Leal was entitled to judicial review of his conviction and sentence to determine if he was harmed by the United States’ violation of the Vienna Convention.  The U.S. Supreme Court unanimously agreed that the United States was obligated to comply with the ICJ decision, but held that Congress must act to implement the Court’s decision.  Both the Bush and Obama administrations have sought to enforce the decision.

The legislation also calls for a stay of execution in any case where a date has been set pending federal review. Mr. Leal is scheduled for execution on July 7.
 
Having no prior criminal convictions, Mr. Leal was arrested, convicted and sentenced to death in 1994, but not informed of his right as a Mexican national to seek assistance from the Mexican consulate under the Vienna Convention for Consular Relations. Attorneys for Mr. Leal argue that had he been provided consular assistance, he would not have been convicted or sentenced to death. The court-appointed lawyers Mr. Leal received were inexperienced and ineffective.  One of them was suspended from the practice of law twice for failing to adequately represent clients and publicly reprimanded on two other occasions.   
 
“The undisputed violation of his Vienna Convention rights in his case goes to the very heart of the validity of his conviction and sentence,” Mr. Leal’s attorneys argue in their motion for stay of execution.  “Among other things, Mexico would have ensured that [Mr. Leal] was represented by highly qualified and experienced defense counsel who would have challenged the prosecution’s reliance on junk science to obtain a conviction and would have presented powerful mitigating evidence at the penalty phase, including expert testimony regarding Mr. Leal’s learning disabilities, brain damage, and sexual abuse at the hands of his parish priest."
 
Once the Mexican consulate was given access to Mr. Leal's case, they provided funds for necessary investigators and experts that led to the discovery of Mr. Leal’s brain damage and sexual abuse. 

The Consular Notification Compliance Act allows for review of cases precisely like Mr. Leal's where lack of consular assistance may have made the difference between life and death.

Attorneys for Mr. Leal are also awaiting a decision on a clemency petition and stay motion from the Texas Board of Pardons and Paroles and Governor Rick Perry.

Late Monday, three judges on the Texas Court of Criminal Appeals issued a concurring opinion which stated that the pardons board and Governor Perry should stay Mr. Leal’s execution until “legislation passes that finally implements our indisputable treaty obligations and provides a remedy for [Mr. Leal’s] right under international law.” 

The CCA judges added: “There is no dispute that allowing [Mr. Leal’s] execution to go forward without first affording him a hearing in satisfaction of the International Court of Justice’s judgment in the Avena case, would violate the United States’s treaty obligations under the Vienna Convention on Consular Relations, the Optional Protocol, and Article 94 of the United Nations Charter – obligations that are binding on Texas by way of the Supremacy Clause of the United States Constitution.”

Documents and background information on Mr. Leal's case, including letters of support from the bipartisan groups and from victims' organizations representing survivors of sexual abuse, can be found at: www.HumbertoLeal.org.

The legislation and a statement from Senate Judiciary Committee Chairman Patrick Leahy can be accessed [at the link.]

Earlier coverage of the Humberto Leal case begins at the link.  More information is at the Humberto Leal website.

More News & Commentary on Florida Ruling

Richard Dieter writes, "Florida ruling highlights arbitrariness of death penalty," at Jurist, this afternoon.  He's the director of the Death Penalty Information Center.

A federal judge in Florida this week ruled that the state's death penalty statute was unconstitutional and in violation of the Sixth Amendment right to a trial by jury. This ruling has been a long time coming and may have a significant impact on Florida capital cases. The problem is with the way Florida decides who should be sentenced to death. In most death penalty states and under federal law, the questions of guilt and capital sentencing are both determined by a unanimous jury. In Florida (and a few other states), the jury determines guilt, but only makes a recommendation with respect to sentencing.

Today's Orlando Sentinel carries the editorial, "Bolster integrity of death penalty process to maintain support."

A federal judge has ruled that Florida's process for imposing the death penalty is unconstitutional, just days before a commission overseeing capital punishment in the state is scheduled for execution.

The commission — or at least its mission — deserves a reprieve from Gov. Rick Scott. The risk that flaws in the legal system could lead to a mistake in sentencing becomes far more ominous when the death penalty is involved. With lives at stake, along with justice, oversight is critical.

On Wednesday, U.S. District Judge Jose Martinez struck down Florida's practice of allowing a majority of jurors to recommend a death sentence without specifying their reasons. Florida Attorney General Pam Bondi has asked the judge to reconsider his decision, and has vowed to appeal if he won't. A resolution could be years away.

And:

State lawmakers created the Florida Commission on Capital Cases in 1997 to "review the administration of justice" in death-penalty cases. But late in this year's legislative session, lawmakers passed a bill, with little deliberation, that eliminated the commission to save $400,000 a year.

It was not the first time Florida's capital punishment system has come under unfavorable review.

A 2006 study by the American Bar Association of Florida's death-penalty process found "substantial shortcomings," including confused jurors, disparities in sentencing based on race and geography, and unqualified lawyers representing inmates on death row.

In 2009, the state Supreme Court made changes to instructions for jurors in capital cases to address the confusion detailed in the ABA study. However, other flaws in the death-penalty process persist.

Critics of the Capital Cases Commission might point to such lingering problems as evidence that the panel has been ineffective. That's a better argument for strengthening its mandate, not abandoning it.

"Prosecutors stay the course despite death penalty ruling," by Tom Brennan for the Tampa Tribune.

Charles Rose, a professor at Stetson University College of Law and director of its Center for Excellence in Advocacy, said Martinez's opinion doesn't set any precedents, only casting "a different opinion in interpreting the [death penalty] statute."

But Rose said Martinez's ruling and reasoning will be cited in future and pending cases.

The professor said the Florida Legislature would be wise to tweak state law to head off those challenges.

"If they thumb their noses at the ruling, they may well find more and more challenges and down the line another court-imposed moratorium." Rose said.

Courthouse News Services distributes, "Florida Death Penalty Axed as Unconstitutional."  It' by Jonny Bonner.

Earlier coverage of the Florida ruling begins at the link. The ruling in Evans v. McNeil is available in Adobe .pdf format. 

More on Ring v. Arizona, the 2002 U.S. Supreme Court ruling, is via Oyez.

A Campaign for Clemency Get International Attention

Nina Martyris writes the OpEd, "Victims don't want the US's death penalty," for today's Guardian.  Martyris is a US-based journalist who is a consulting editor with The Times of India Crest.

The US death penalty debate is back in the national spotlight thanks to a 9/11 hate-crime victim who was shot at and blinded in one eye, but is campaigning for his shooter's death sentence to be commuted to life imprisonment.

In September 2001, crazed by the death of his sister in the World Trade Centre, a heavily tattooed, bandana-sporting stone-cutter named Mark Stroman set out with his shotgun. He killed two men, assuming they were Arabs (one was an Indian Hindu, the other a Pakistani Muslim), and then walked into a gas station and shot into a third man's terrified face after asking "Where are you from?".

Rais Bhuiyan, who is also not an Arab but a Bangladeshi, survived, but had to undergo four operations and now lives with a dead eye and a face and head pitted with metal lumps. Remarkably, then, the 37-year-old aeronautics graduate who quit the Bangladesh air force to fly to the US in search of "more freedom", has been working with Amnesty and Stroman's lawyer to reduce Stroman's sentence. He says his main crime is ignorance and that killing him will only continue "the cycle of hitting and hitting back". Bhuiyan has been accused of being motivated more by the glitter of publicity than the glow of forgiveness, but whether or not that is true, this case is significant for several reasons.

And:

Third, and perhaps most important, here is yet another case of a victim opposing the death penalty. Bhuiyan, who keeps in touch with the other two victims' families, says that one of the families is actively supporting him, thereby countering the pro-death camp's argument that while it's all very well for nuns and liberals to sing from the abolitionist songbook, families whose loved ones have been murdered, raped or tortured have an emotional and moral need to see the perpetrator punished with death in order to get some kind of justice and closure. This, despite the anguished testimony of innumerable victims' families that capital trials, with their endless hearings and appeals, only prolong their trauma, and that, eventually, when the execution does take place, watching the offender die brings neither catharsis nor redemption.

Earlier coverage of Bhuiyan's campaign for a commutation of his attacker's death sentence begins at the link.  Stoman's execution date is July 20.

Abe Bonowitz of the National Coalition to Abolish the Death Penalty will host a live Facebook chat with Rais Bhuiyan today at 1:00 pm (EDT), 12:00 pm (CDT), 11:00 am (MDT), 10:00 am (PDT).  Details at the link.

Lura Lynn Ryan

The wife of former Illinois Governor George Ryan has died following a lengthy illness.

The AP post is, "Lura Lynn Ryan Dead: Wife Of Imprisoned Governor George Ryan Dies At 76, via Huffington Post.

"Lura Lynn Ryan, wife of former governor, dies at age 76," is the Chicago Tribune report this morning.

Former Governor Ryan's mailing address is:

George Ryan, Sr., 16627-424
FCI Terre Haute Satellite Camp
PO Box 33
Terre Haute, IN 47808

Randall Dale Adams, 1949 - 2010

The New York Times obituary is titled, "Randall Adams, 61, Dies; Freed With Help of Film.  It's written by Douglas Martin.

Randall Dale Adams, who spent 12 years in prison before his conviction in the murder of a Dallas police officer was thrown out largely on the basis of evidence uncovered by a filmmaker, died in obscurity in October in Washington Court House, Ohio. He was 61.

Mr. Adams had chosen to live a quiet life divorced from his past, and when he died on Oct. 30, 2010, of a brain tumor, the death was reported only locally, said his lawyer, Randy Schaffer. The death was first widely reported on Friday.

The film that proved so crucial to Mr. Adams was “The Thin Blue Line,” directed by Errol Morris and released in 1988. It told a harrowing story, and it had the effect of helping to bring about Mr. Adams’s release the following year.

“We’re not talking about a cop killer who’s getting out on a technicality,” Mr. Morris said when Mr. Adams was set free. “We’re talking about an unbelievable nightmare.”

And:

In March 1989, the Texas appeals court ruled Mr. Adams was entitled to a new trial because of the perjured testimony. Three weeks later, he was released on his own recognizance, and two days after that the Dallas district attorney dropped all charges.

Mr. Adams lived a peripatetic life afterward, first returning to his native Ohio, then moving to upstate New York, later returning to Texas, in the Houston area, and finally settling again in Ohio. Mr. Schaffer said Mr. Adams gave speeches against the death penalty and married the sister of a man on death row. He did not know if they were still married at his death.

Diane Jennings wrote, "Early Dallas exoneree Randall Dale Adams died in Ohio last year," for the Dallas Morning News.

Mr. Adams was “an ordinary guy caught up in extraordinary circumstances,” said Randy Schaffer of Houston, Mr. Adams’ former attorney. “I’m sure he never bargained for the role he played in American criminal justice.”

Mr. Schaffer said he didn’t hear about Mr. Adams’ passing until several months later, though they usually talked about once a year.

An Adams relative confirmed his death from a brain tumor, Mr. Schaffer said.

“The reason there was no publicity was he had moved to some small town in Ohio where nobody knew who he was, and he liked it that way,” Mr. Schaffer said.

Adams received no compensation from the state.  He did receive apologies from Texas lawmakers.  He testified at several legislative hearings in Texas, speaking on behalf of reform measures.  Related posts are in the exoneration index.

Steve Mills on the Willingham Case, Today

"Gov. Rick Perry's role in possible wrongful execution may hurt campaign chances," is the title of Steve Mills' Chicago Tribune report.

Gov. Rick Perry of Texas has presided over 231 executions, more than any governor in the death penalty's modern history. If he runs for president, one of those executions may become a campaign issue — a case involving questions of whether he allowed an innocent man to be put to death, then tried to scuttle a state commission's investigation into the matter.

The execution of Cameron Todd Willingham drew little attention when it took place in February 2004. But in the subsequent seven years, the way Perry handled the execution and an ongoing investigation into the case has become controversial. A presidential bid would likely increase the scrutiny, particularly as the Republican governor becomes better known.

Whether the scrutiny would influence the outcome of the presidential campaign is another question.

And:

The Tribune investigated the case in December 2004. As part of that investigation, the newspaper had experts review the evidence. Those experts agreed with Hurst, saying the arson finding was inappropriate. A short time later, the Texas Forensic Science Commission was formed to examine the use of forensic evidence and selected the Willingham case as its first investigation.

In 2009, as the commission neared having testimony from its own expert and issuing a final report, all indications were that it would find that the science in the case was deeply flawed. Even without a declaration that Willingham had been wrongly executed, the implication would be that the initial arson finding had been unsupported, undermining the conviction and shining an unflattering light on Perry.

And:

Harvey Kronberg, publisher and editor of the Quorum Report, a Texas political report, said the issue might resonate more with general election voters nationally if coupled with other issues that nick at the governor's leadership or character.

"It's one of many things that may take a little luster off the rose for general election voters," said Kronberg, who has long followed Perry. "It could be part of a series of stories that at least earn Perry a second, more critical look."

The Tribune also published, "A timeline of the Cameron Todd Willingham case."  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Earlier coverage of the case beings at the link.  All Willingham coverage is available through the Todd Willingham index.

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

David Grann's September 2009 New Yorker article is noted here.    

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

 

The Case of Larry Swearingen

Steve Mills writes, "Another case could raise tough questions for Gov. Rick Perry: With death row inmate Larry Ray Swearingen, timing of murder is the issue," for the Chicago Tribune.

As Texas Gov. Rick Perry considers a presidential run, another death penalty case with tough questions about scientific evidence may become an issue. In this case, Perry would decide whether to proceed with the execution.

Larry Ray Swearingen is on death row for the December 1998 kidnapping and murder of Melissa Trotter. At issue is scientific evidence that estimates when Trotter was murdered. That is crucial because she disappeared Dec. 8, 1998, and her body was found more than three weeks later, on Jan 2, 1999, in the Sam Houston National Forest.

Swearingen was taken into custody and jailed Dec. 11, 1998, on other charges, then charged with the murder. His lawyer insists he could not have committed the crime because he was in jail when it happened.

At trial, a former chief medical examiner from Houston testified that Trotter had been dead about 25 days. That time frame made it possible for Swearingen to have committed the crime before he was taken into custody.

As Swearingen appealed his conviction, though, his lawyers found forensic experts, including some of the state's leading medical examiners, to study the case. Those experts determined Trotter had been dead only several days when her body was found. What's more, the prosecution's lead witness re-examined the case and said she had been wrong in her trial testimony. She said Trotter had been killed as long as 10 days after Swearingen had been arrested.

Earlier coverage of the Swearingen case begins at the link.  Mills' article is a sidebar to an examination of the Todd Willingham case - and its possible signifigance to Rick Perry and politics.  It's next up.

Attention Focusing on Humberto Leal Case

"Texas Is Pressed to Spare Mexican Citizen on Death Row," is the title of Adam Liptak's latest Sidebar column in the New York Times.  It will appear in tomorrow's print edition; it's just been posted to the NYT site.

Texas is planning to execute Humberto Leal Garcia Jr. next week. His case is in many ways unexceptional: ghastly crime, substantial but problematic evidence, inept defense lawyer.

In another sense, though, Mr. Leal’s case is different from those of the six men Texas has already put to death this year.

He is a citizen of Mexico. After his arrest, he was denied his rights under the Vienna Convention to consult Mexican consular officials.

Had his government been allowed to come to his aid, Mr. Leal’s lawyers say, he might still have been convicted. But they say that legal help from the Mexican government would almost certainly have kept him off death row.

Former judges, law enforcement officials, military leaders and diplomats have lined up on Mr. Leal’s side. Most take no position on Mr. Leal’s guilt or on the death penalty. Their argument is more practical.

“If we do not comply with our obligations under the Vienna Convention on Consular Relations and the U.N. Charter,” said John B. Bellinger III, who was the State Department’s top lawyer in the Bush administration, “we put at risk Americans, including Texans, who travel and may be arrested overseas. It is surprising that Texas does not recognize the risks it may be creating for its own citizens.”

True, Texas provided Mr. Leal with a lawyer. But the convention requires that arrested foreigners also be told of their right to speak with consular officials and put in contact with them “without delay.”

Billy Hayes, whose ordeal in a Turkish prison was the subject of the movie “Midnight Express,” wrote a letter to Gov. Rick Perry this month urging him to grant a reprieve to Mr. Leal. In an interview last week, Mr. Hayes said he could not have imagined negotiating the Turkish legal system without the emotional support and logistical help that American diplomats provided.

“It’s a different country,” he said, “different language, different law and different rules.”

Mr. Leal, by contrast, did not learn of his rights until two years after his conviction, and even then not from American authorities but from a fellow inmate.

Journalist Euna Lee writes the OpEd, "Consular access: A two-way street on a crucial right," for the Washington Post.  She's the author of author of The World is Bigger Now: An American Journalist’s Release from Captivity in North Korea.

In 2009, while on assignment for Current TV, my colleague Laura Ling and I were arrested by North Korean soldiers for crossing the frozen Tumen River, which separates the Republic of China and North Korea. We were imprisoned and isolated from one another for 4¹/₂ months. We were repeatedly interrogated, eventually put on trial and sentenced to 12 years’ hard labor. It was only through the extraordinary efforts of the State Department and former president Bill Clinton that we were pardoned and allowed to return home. 

It is difficult to describe the fear that comes with being arrested and detained in a foreign country. The sense of darkness in that first week of North Korean captivity was unbearable. My biggest fear was nobody knowing where I was or what had happened to me. The strained relations between the United States and North Korea only increased my despair.

In the middle of the second week, though, I was handed a lifeline: a meeting with the Swedish ambassador, who represented U.S. interests and pointed out to North Korea its responsibilities under the Vienna Convention on Consular Relations. His hard work yielded a meeting no longer than 10 minutes, but the significance is hard to express. I can only mention the sense of security I now had — that someone outside of North Korea was monitoring my case. The prompt consular access, I believe, protected me from any physical mistreatment by my captors. I was allowed to meet with the ambassador three more times. The meetings were my only communication with the U.S. government — the only way for me to ask for help and to deliver messages to my family. I know the importance of what the Vienna Convention provides. 

And:

The United States has always been in the forefront of the fight for human rights. People look to us to be a watchdog for human rights violations around the globe. We ask the world to treat our citizens with respect when they are detained in other countries, including honoring their right to consular access. It is a two-way street. The United States must lead by example in honoring consular treaty obligations and in providing a remedy when that right is violated. If Congress does not act swiftly, other countries will be encouraged to violate the consular rights of U.S. citizens traveling abroad. I know firsthand that this is a risk we cannot take.

Today's National Law Journal carries commentary by Lori F. Damrosch,, "Time to comply with the Vienna Convention."  She is the Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School.

U.S. citizens travel, study and work abroad in vast numbers. Every year, thousands of them are detained and sometimes jailed, not always under circumstances comporting with U.S. views of due process. The bulwark of their protection is the Vienna Convention on Consular Relations, which binds the United States and 172 other countries to notify nationals of treaty partners who are arrested or detained of their right to contact the consulate of their country.

The Vienna Convention has been the supreme law of the land since 1969, when it was unanimously approved by the Senate and brought into force by President Richard Nixon. The Senate gave advice and consent on the basis that the treaty would be self-executing — that is, that no implementing legislation would be needed.

This premise turned out to be incorrect. In Medellin v. Texas (2008), the U.S. Supreme Court held that an international judgment based on the Vienna Convention could not be given effect as directly applicable federal law. Rather, Congress would have to adopt the necessary legislation to enable the United States to comply with its treaty obligations.

It is now urgent for Congress to enact such legislation. Since 2004, when Mexico obtained a ruling from the International Court of Justice (ICJ) on remedies for U.S. treaty violations affecting 51 Mexican nationals on death row in U.S. states (Avena and Other Mexican Nationals), the United States has been under a binding obligation to afford a judicial remedy to those individuals.

One of them, Humberto Leal, is scheduled to be executed by the state of Texas on July 7.

And:

Under Article 36 of the Vienna Con­vention, a foreign national who is arrested or detained for any reason whatsoever must be notified "without delay" of his right to communicate with the consular post of his country. The 51 Mexican nationals covered by the Avena judgment were not given any such notice and thus Mexico was unable to give them consular services in their trials on capital charges.

Earlier coverage of the Leal case and the federal legislation pending in the U.S. Senate begins at the link.

More information is at the Humberto Leal website.

More Todd Willingham, Rick Perry, 2012 Politics

The Atlantic's Ta-Nehisi Coates posts, "'Death Isn't Fair'."

Probably the best thing about writing that column was the sheer amount of great, great journalism I got to read. The Chicago Tribune series is incredible and classic even ten years later. Incendiary is a gripping fact-based explanation, not just of fire science, but how the science that convicted Willingham was wrong. It's one of the most sober debunkings I've ever seen. I don't think there's much more we can say about David Grann's piece that hasn't been said already. Obviously it was essential.

But one piece of journalism that deserves to be remembered and re-read over and over again is The Texas Monthly's monster of an investigation, "Death Isn't Fair." My favorite part of the piece is how it demonstrates that even statements like my own ("Texas fumbles at the machinery of death" or whatever I said) actually don't communicate the true nuance of the state. Consider this:

 

Only about one in a hundred killings ends up as a death penalty case. Who decides? The local district attorney. What does he base his decision on? There's no simple answer. Prosecutors have enormous discretion and are accountable to no one, except to the voters who elect them. You might think that politics would cause all DAs to be death penalty advocates, but this is not borne out by the facts. Since 1976, only 116 of Texas' 254 counties (fewer than half) have sentenced a person to death; more than half the counties (138) have never sent anyone to death row.

The Week posts, "Rick Perry's death penalty 'disgrace': A 2012 dealbreaker?"

Texas Gov. Rick Perry has not officially entered the race for the 2012 GOP presidential nomination, but a Wall Street Journal report quotes a reliable Republican source who says Perry has decided to run. Political strategists say moderate frontrunner Mitt Romney is vulnerable to a challenge from the right, making Perry a potentially strong candidate.

And:

Outside Texas, this case will cost him: The fact is that Perry denied Willingham a stay of execution despite "the overwhelming post-execution evidence that Texas made an irreversible mistake," says the Los Angeles Times in an editorial. The evidence used to convict Willingham of setting a fire that killed his three small children was based on junk science. It's understandable that execution-happy Texas would overlook that and re-elect Perry to his third term, but "the rest of the nation may not be so forgiving."

Ta-Nehisi Coates' NYT OpEd column, begins the Willingham coverage.  

All Willingham coverage is available through the Todd Willingham index.

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

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

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

 

From Florida

Today's Miami Herald carries the AP post, "Governor urged to review Fla. death procedures," filed by Bill Kaczor.

The executive director of a soon-to-be-disbanded oversight commission for Florida's death penalty sent a letter to Gov. Rick Scott on Thursday saying the panel's work needs to somehow continue.

Noting that a federal judge declared Florida's death penalty procedure unconstitutional just a day earlier, Roger Maas wrote that decision "certainly underscores concerns in this area, regardless of the final disposition on that case."

Scott has signed a bill (HB 5011) that will abolish the Commission on Capital Cases as of July 1.

Four of the commission's six members are legislators, including its chairman, Rep. Jim Waldman, D-Coconut Creek. The other two members are former judges.

In his letter, Maas offered to help if the governor should launch a review of the death penalty process by executive order or otherwise. He added that he was confident the current commission members would be willing to assist as well and anticipates the Florida Bar will soon endorse such a review.

"I believe very strongly that there is a compelling need for oversight," Maas wrote. "The Commission's institutional memory and expertise may prove to be invaluable if not irreplaceable toward these ends."

And:

While some administrative functions of the Commission on Capital Cases will be transferred to the Judicial Administrative Commission, Maas wrote that the new law will "seemingly abandon the commission's larger statutory mandate."

That includes reviewing the work of two regional legal offices that represent indigent death row inmates in appeals in central and South Florida and private lawyers hired by the state to do work in north Florida.

Also gone will be the panel's role in obtaining public comment and advising the Legislature, executive branch and Supreme Court on death penalty issues, Maas wrote.

Earlier this week a federal district judge declared the state's death penalty sentencing scheme unconstitutional.  Earlier coverage of the Commission on Capital Cases begins at the link.

Lethal Injection Roundup - News From Arkansas & Georgia

John Lyon posts, "High court halts three executions," at Arkansas News Bureau.

The state Supreme Court today halted the executions of three inmates who are challenging the constitutionality of lethal injection in Arkansas.

The high court issued stays for the executions of Jason Farrell McGehee, who was scheduled to die July 26; Bruce Earl Ward, who was scheduled to die Aug. 16; and Marcel Wayne Williams, who was scheduled to die July 12.

The three men are plaintiffs in a lawsuit filed in Pulaski County Circuit Court alleging that a 2009 state law authorizing the director of the state Department of Correction to choose the drugs used for lethal injection amounts to an unconstitutional delegation of authority.

The Supreme Court today directed the circuit court to provide it with a status update on the case.

Arkansas has not executed anyone since 2005, in part because of legal challenges to the state’s method of execution. Several other executions have been stayed because of court challenges.

From Georgia, the AP's Greg Bluestein reports, "Georgia man put to death for 1978 murder."  It's via the Atlanta Journal-Constitution.

A prisoner who was executed Thursday for killing an elderly Savannah woman more than three decades ago appeared to grimace and jerk as he became the first person put to death in Georgia with a drug that the state had not used before.

Roy Willard Blankenship jerked his head several times throughout the procedure and muttered after the pentobarbital was injected into his veins. The 55-year-old's breathing and movements slowed within minutes, and he was pronounced dead at 8:37 p.m.

And:

Blankenship's execution was under close scrutiny by state attorneys, death penalty defense lawyers and other observers. He was laughing and chatting with a prison chaplain in the moments before his execution, at one point trying to converse with the observers sitting behind a glass window.

As the injection began, he jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.

Within three minutes, his movements slowed. About six minutes after the injection began, a nurse checked his vital signs to ensure he was unconscious before the execution could continue. He was pronounced dead nine minutes later. His eyes never closed.

Death penalty critics said Blankenship's movements were proof that Georgia shouldn't have used pentobarbital to sedate him before injecting pancuronium bromide to paralyze him and then potassium chloride to stop his heart.

"Blankenship executed by lethal injection," by Walter C. Jones for the Savannah Morning News.

Blankenship, 55, became the 28th killer Georgia has executed with lethal injection. Another 101 men and one woman are awaiting the same fate on the state's death row at the Georgia Diagnostic & Classification Prison in Jackson.

Blankenship grew up in rural West Virginia with an abusive, alcoholic step father after his father died in an accident, according to court papers. He struggled with alcohol himself, and served just a brief stint in the military.

Once on Death Row, he became a model prisoner, kept only a Bible in his cell and even counseled other inmates into deepening their Christian faith, according to his attorney, Brian Kammer. His own faith complicated his defense when he won't talk with investigators from the Parole Board.

It was Georgia's second execution of 2011; its 50th since 1983.  It was the 24th execution in the nation this year.  To date, there have been 1,258 post-Furman executions since 1977.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

In Ohio

"Judge ponders Ohio death method," is the AP report by Andrew Welsh-Huggins, via the Columbus Dispatch.

The state doesn't follow its execution policy faithfully enough to warrant ending challenges over the constitutionality of lethal injection in Ohio, attorneys for several death row inmates argue as a federal judge weighs the state's request to stop an ongoing injection lawsuit.

One challenge for defense lawyers trying to keep the lawsuit alive: Ohio has successfully conducted several executions since switching to a new one-drug system, including three executions this year involving a new barbiturate.

In other states, "some lawyers are saying what's being done in Ohio should be required in their state," said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment.

In a series of filings earlier this week, attorneys for inmates with executions scheduled this year and next say the state still hasn't created a system free from the risk of cruel and unusual punishment.

For example, they argue that the state doesn't always have the required number of execution team members working the day of an execution.

They also say the state sometimes skips the mandatory assessment of inmates' veins to be sure IVs can be properly inserted.

As a result, inmates "will experience an undignified, spectacle execution with a substantial risk of severe physical and mental pain if defendants attempt to execute them as planned," attorneys argued in the Monday filing in federal court.

Ohio is scheduled to execute Kenneth Smith on July19 for his involvement in the slaying of a husband and wife in their Hamilton home in 1995 during a robbery.

And:

Should Smith's execution proceed, the state is making accommodations to allow his final statement because Smith has had his larynx removed since he was incarcerated and uses an artificial voice box.

The state argued last month that this gesture of flexibility is one more reason U.S. District Judge Gregory Frost should dismiss a lawsuit challenging Ohio's execution procedures.

Earlier lethal injection coverage from Ohio begins at the link; related posts are in the lethal injection index.

An Update on the Humberto Leal Case

"Federal judge won't stop Mexican's execution," is the AP report filed by Michael Graczyk.  It's via the Houston Chronicle.

A federal judge has refused to stop the upcoming execution of a Mexican national convicted of the 1994 rape-slaying of a 16-year-old San Antonio girl.

Humberto Leal, 38, a native of Monterrey, Mexico, faces lethal injection July 7 in Huntsville.

Leal's attorneys argued his punishment should be blocked because he wasn't told he could contact the Mexican consulate for legal help after his arrest for the murder of Adria Sauceda. They also said a bill introduced last week in Congress would allow federal courts to review cases of condemned foreign nationals.

U.S. District Judge Orlando Garcia ruled Wednesday the consulate claim was "utterly lacking in arguable merit."

He also said the measure introduced June 11 by Vermont Sen. Patrick Leahy was "a mere proposal" and that similar attempts have failed twice in recent years.

"It is not an enactment of new law," Garcia said.

Leal's attorneys presented several dozen former diplomats, State Department officials and retired military officers backing their appeal and the likelihood that Leahy's measure would pass Congress.

Garcia dismissed them as "little more than highly speculative predictions from a variety of political science professors and a handful of hopeful executive branch and congressional officers."

Sandra Babcock, an attorney for Leal and a Northwestern University law school professor, said Garcia's decision would be appealed.

"With consular access, Mr. Leal would have had highly qualified and experienced lawyers and expert assistance that would have transformed the quality of his defense," she said. "The legislation before Congress is narrowly tailored to provide review for precisely this kind of case where lack of consular assistance may have made the difference between life and death.

"Mr. Leal is constitutionally entitled to receive a stay of execution while Congress is considering taking the necessary measures to remedy this serious violation."

Earlier coverage of the Leal case and the federal legislation begins at the link.

Bellinger on the Treaty Bill

John B. Bellinger III, served as legal adviser to the U.S. Department of State during the administration of President George W. Bush.  Bellinger writes a Letter to the Editor of the New York Times, "Congress and a Treaty."

Re “The Treaty and the Law” (editorial, June 18):

You are right to urge Congress to pass legislation to require federal courts to review the convictions of certain foreign nationals, including 40 Mexicans, on death row in Texas and other states who were not notified by state officials of their right to speak to a consular officer of their governments, in violation of United States treaty obligations. But you did not mention that review of the convictions of the Mexicans was mandated by a 2004 decision of the International Court of Justice.

And:

Some members of Congress may now be reluctant to take action to comply with a World Court decision, but they should recognize, as the Bush administration did, that the United States cannot expect other countries to comply with their treaty obligations to us unless we comply with our treaty obligations to them.

Earlier coverage of the Leal case and the federal legislation introduced in the U.S. Senate begins with today's Houston Chronicle editorial.  The Times editorial is noted at this link.

More on the Florida Federal Court Ruling

"Miami federal judge rules Florida’s death penalty unconstitutional,' is the Miami Herald report written by David Ovalle.

A Miami federal judge ruled Wednesday that the way Florida courts mete out the death penalty is unconstitutional because juries — not judges — should be the ones to spell out which details about the crime justify execution.

U.S. District Judge Jose E. Martinez ordered that Paul H. Evans, convicted in a 1991 murder-for-hire case in Vero Beach, must receive a new sentencing hearing.

The ruling, likely to be argued in appellate courts for years, does not strike down Florida’s capital-punishment law. But it could force lawmakers to change the statute, and could give recent convicts new avenues for appeal, legal experts say.

“If the case survives appeals, the Florida Legislature is going to have to modify the law to allow jurors to explain why someone deserves the death penalty,” said Miami attorney Terry Lenamon, founder of the Florida Capital Resource Center, a support group for death-penalty defense cases.

Florida Attorney General Pam Bondi, through a spokeswoman, said Wednesday that her office would request a rehearing and appeal the decision.

Martinez was appointed to the federal bench in 2002 by President George W. Bush.

Legal scholars say Martinez’s ruling marks the first time a Florida judge has overturned a death sentence under the U.S. Supreme Court case Ring v. Arizona. In that 2002 ruling, the court held that defendants are entitled to have juries decide on whether any “aggravating factors” in a crime justify enhanced punishment.

And:

Florida is one of the few states that allow juries to issue death penalty recommendations that are not unanimous. Here, 12-person juries recommend by majority vote whether someone convicted of first-degree murder should be executed. But state jurors do not have to check off on an instruction sheet which reasons contributed to their decision, as jurors are required to do in the rare death penalty case in federal court.

Trial judges in Florida’s state courts have authority to override jury recommendations, although in death penalty cases, they rarely do.

Judge Martinez, in Wednesday’s ruling, said there was no way to know if all nine of the jurors in Evans’ case who voted for death were swayed by the same aggravating factors as the judge. He conceded that jury unanimity may not be constitutionally necessary, but wrote: “… It cannot be that Mr. Evans’ death sentence is constitutional when there is no evidence to suggest that even a simple majority found the existence of any one aggravating circumstance.”

The Palm Beach Post reports, "Federal judge strikes down Florida's death penalty," by Daphne Duret and Jane Musgrave.

In a decision hailed by defense attorneys and civil libertarians, a federal judge in Miami has struck down Florida's death penalty saying the way it is applied flies in the face of the U.S. Constitution.

"It has been a long time coming," said Coral Springs attorney Bill Matthewman. "Many of us felt for years that Florida death penalty statute was unconstitutional and were just waiting for a case to confirm it."

In his 94-page ruling, U.S. District Judge Jose Martinez this week repeatedly cited a 2002 U.S. Supreme Court decision as a basis for his finding that Florida's law is fatally flawed.

In that decision, that struck down Arizona's death penalty, the Supreme Court held that a jury must agree on certain aggravating factors to justify their decision that a person should be put to death. However, in Florida, jurors aren't required to make such a finding.

"This cannot be reconciled with Ring," Martinez wrote, referring to the landmark Supreme Court case.

Defense attorneys said forcing jurors to agree on aggravating factors isn't simply perfunctory. They are at the heart of constitutional rights.

"It is the law in this country that not everyone who commits murder is eligible for the death penalty," Matthewman said. "It's only the worst of the worst."

"Federal Judge Rules Florida Death Penalty Procedure Is Unconstitutional," by Debra Cassens Weiss for the ABA Journal.

In Florida state courts, 12-person juries can recommend a death sentence by majority vote, and there is no requirement that jurors cite which aggravating factors swayed their decision, the stories say. Evans' death sentence can't be constitutional, Martinez wrote, when “there is no evidence to suggest that even a simple majority found the existence of any one aggravating circumstance."

The ruling in Evans v. McNeil is available in Adobe .pdf format.  Earlier coverage of the ruling is at the link.

More on Ring v. Arizona, the 2002 U.S. Supreme Court ruling, is via Oyez.

The Haunting of Rick Perry

That's the title of Ta-Nehisi Coates' OpEd column in today's New York Times.

Should Gov. Rick Perry of Texas enter the 2012 presidential race, he would enjoy a strange and remarkable escort — the irrepressible ghost of Cameron Todd Willingham.

Charged with the horrific crime of intentionally torching his home and leaving his three daughters to the blaze, Willingham’s 1991 conviction and 2004 execution were secured by two great bugbears of America’s criminal justice system: pseudoscientific forensics and the compromised testimony of a jailhouse snitch.

The fire investigators who fingered Willingham relied on the kind of sorcery that fire scientists have tried for the past 20 years to chase from the field. The informant, for his part, claimed that Willingham had inexplicably blurted out a confession, then recanted his tale. Then, in the words of New Yorker reporter David Grann, he “recanted his recantation.” When Grann tracked him down in 2009, he told him that “it’s very possible I misunderstood” what Willingham said, pausing to add “the statute of limitations has run out on perjury, hasn’t it?”

Perry was unswayed by pleas from Willingham’s lawyers and rejected their request for a 30-day reprieve. This registers as a rather mild atrocity in Texas, a state that does not so much tinker with the machinery of death as it gleefully fumbles at the controls.

In 2000, an investigation by The Chicago Tribune found that almost one-third of court-appointed defense lawyers in capital cases in Texas had, at some point, been publicly sanctioned by the state’s trial board. The Tribune uncovered cases of lawyers falling asleep at trials, engaging in extortion and assaulting teenage girls. Prosecutors and police were found concealing evidence or worse. In 1980, Cesar Fierro received the death penalty on the strength of a confession secured after an El Paso sheriff colluded with police across the border in Juárez, Mexico, who arrested Fierro’s parents and threatened to attach an electric generator to his stepfather’s genitals. Fierro is still on death row.

Texas regularly executes more criminals than any other state, and does so in such haphazard fashion that it could be comic. Except people are dying.

Coats, a senior editor at the Atlantic, posts, "The Ghost Of Cameron Todd Willingham."

There really is no polite way to say this: The particular manner in which Texas employs the death penalty is a disgrace to the country. And there's no real end in sight. I am opposed to the death penalty, largely because I think a situation like this, somewhere, is unavoidable. 

On Willingham, I highly recommend everyone in the DC area check out Incendiary, which looks at the case. The explanation of fire science, and the phrenology employed by arson investigators in the case, is gripping. See it. 

And if you haven't read David Grann's piece on the case, please make time. The two compliment each other well.

More commentary on Rick Perry and Todd Willingham begins earlier coverage. 

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Houston Chronicle on the Leal Case

Today's Houston Chronicle carries the editorial, "Keeping our word: Scheduled Texas execution violates treaty and endangers Americans abroad."

Americans traveling abroad are protected, whether they are aware of it or not, by a treaty called the Vienna Convention on Consular Relations, ratified by about 170 countries, which guarantees them access to U.S. consular assistance if they are detained or arrested in a foreign country. In 2010, more than 6,600 Americans were arrested abroad, and more than 3,000 were incarcerated. Many of them benefited from the protections of this treaty.

But unfortunately, the U.S. has repeatedly failed to offer those same protections to foreigners on U.S. soil. The most egregious of these violations is the denial of consular assistance to foreign nationals convicted and sentenced to death. (Currently, about 100 foreign nationals are on U.S. death rows.) And in a particularly urgent case, one of those individuals whose rights were violated, a Mexican national named Humberto Leal Garcia, is scheduled to be executed on July 7 in Huntsville.

Because a bill has been introduced to bring the U.S. into compliance with the treaty, Leal's attorneys have filed a federal petition and a motion for a stay of execution so that Leal will be alive and eligible for the remedies of this legislation when it becomes law.

There are compelling reasons why these petitions should be granted. Chief among them is the fact that this pending legislation will allow for review of cases like Leal's, said his attorney Sandra Babcock, "where lack of consular assistance may well have made the difference between life and death. That's why the consular access really matters." Mexico provides top-flight legal assistance to its nationals under such circumstances.

And:

For all of these reasons, we urge Congress to act swiftly to pass this legislation, and we urge Gov. Perry to give Leal, and others in his situation, the time to benefit from its remedies if they are shown to have been harmed.

Earlier coverage of the case of Humberto Leal and the federal legislation begins at the link.

Florida Death Penalty Law Declared Unconstitutional

Orlando's WESH-TV reports, "Could Court Decision Affect Fla. Death Penalty?"  It's by Matt Lupoli.

A judge in Miami ruled Monday that a man's death sentence for a 1991 murder, and Florida's Capital Sentencing Statute violate a Supreme Court ruling and the Sixth Amendment.

Paul E. Evans was convicted of killing a man in exchange for a stereo, a camcorder and some insurance money, according to court documents. The judge ruled that because the death penalty is an "enhanced" sentence under Florida law, it contrasts with the Supreme Court's ruling on Ring vs. Arizona, which found that the Sixth Amendment requires that a jury find "enumerated aggravating factors" for enhanced sentencing.

And:

Judge Jose Martinez, in his ruling on the Miami case, argued that the defendant has no way of knowing whether the jury found the same aggravating factors as the judge -- who ultimately decides whether any of those circumstances constitute death -- because the findings are not explicit.

Aggravating circumstances, under Florida law, include disrupting law enforcement, felony murder, a great risk to many people, a victim less than 12 years of age, and anything that is perceived by the court as heinous, atrocious or cruel.

The immediate impact is limited to the one case, for now, and the state is likely to appeal to the 11th Circuit.  More on Ring v. Arizona, the 2002 U.S. Supreme Court ruling, is via Oyez.

Earlier this month, the Montana death penalty statute was challenged for the same reason, as noted at the link.

DPIC Issues New Report

The report, "Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976," is available in Adobe .pdf format.

The Death Penalty Information Center has also issued a news release announcing the report, "On 35th Anniversary of Death Penalty's Reinstatement, New Report Shows System Remains Arbitrary & Unfair."  Here's the release:

July 2, 2011 is the 35th anniversary of the U.S. Supreme Court’s decision in Gregg v. Georgia, where the Court approved sentencing schemes intended to make the death penalty less arbitrary and reinstated capital punishment after a four-year moratorium. In advance of this anniversary, the Death Penalty Information Center (DPIC) released a report today showing that race, geography, money, and other arbitrary factors continue to make receiving the death penalty as random as being “struck by lightning,” as Justice Potter Stewart observed.

Read “Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976.”

“Many of those who favored the death penalty in the abstract have come to view its practice very differently. They have reached the conclusion that if society's ultimate punishment cannot be applied fairly, it should not be applied at all,” the report concludes.

A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was reinstated eventually concluded the experiment had failed. Three of the justices in the Gregg majority (Justices Blackmun, Powell and Stevens) later changed their minds and would have joined Justices Marshall and Brennan in banning capital punishment as unconstitutional.

The report includes a side-by-side comparison entitled “Who is executed? Who is spared?” that shows the worst of the worst offenders often avoid the death penalty. For example, serial killer Gary Ridgway, who pled guilty to killing 48 people in Washington State, was spared the death penalty in exchange for detailed confessions about his victims. In contrast, the borderline mentally retarded Teresa Lewis, who stood by as co-defendants shot her husband, was executed in Virginia. Her co-defendants received life sentences.

National and state data show that the system is too random to be an effective deterrent or deliver retribution. For example, there are approximately 15,000 murders a year nationwide. In 2010, there were 46 executions. A ratio of one execution for every 326 murders suggests that the death penalty is still as unpredictable as being struck by lightning.

According to the report, variables that have nothing to do with the severity of the crime or the culpability of the defendant exert significant influence over capital sentencing and executions:

• Race: Study after study has shown that defendants who kill white victims are far more likely to receive the death penalty than those who kill black victims.

• Geography: Almost all of the death sentences in the country come from a relatively few counties and almost all of the executions occur in a handful of states.

• Costs: Money often plays a key role in the quality of defense a defendant receives and county budgets often dictate whether the district attorney will seek the death penalty.

• Uneven Appellate Review: In some states, almost all death sentences are affirmed in state court, while in others most are overturned. Nationwide, two-thirds of death sentences are overturned on appeal. When reconsidered, more than 80 percent receive a sentence less than death. The statistics call into question the reliability of the system in selecting the “worst of the worst” for the death penalty.

A national poll of registered voters conducted in 2010 by Lake Research Partners indicated that the problem of unfairness ranks as one of the top concerns among voters leading them to support replacing the death penalty with a sentence of life without parole.

Sixty-nine percent (69%) of respondents found it convincing that: “In reality, the death penalty is applied unevenly and unfairly, even for similar crimes. Some people are sentenced to die because they couldn't afford a better lawyer, or because they live in a county that seeks the death penalty a lot. A system that is so arbitrary should not be allowed to choose who lives and who dies.”

Prominent legal organizations, such as the American Bar Association and the American Law Institute (ALI), agree that the system is extremely flawed. In 2009, the ALI voted to rescind parts of the Model Penal Code dealing with the death penalty citing the futility of trying to fix the system.

More on the 1976 Supreme Court case of Gregg v. Georgia is via Oyez.

More Pressure on Drug Companies

"Death Penalty Opponents Push to Stall Lethal Injections," is the title of David Von Drehle's latest post at Time.

Back when Florida executed prisoners in an electric chair, part of the ritual involved plunging the entire maximum security state prison into total darkness as they switched off the grid and onto backup generators. The purpose of this exercise was to protect Florida Power and Light from possible bad publicity–a company in the electricity business doesn’t want the words “time of death” linked to its name on the front page.

Death penalty opponents are using that same principal to try to stall executions by lethal injection. In a letter delivered Tuesday, Helen Prejean, the renowned author of “Dead Man Walking,” asked Cardinal Health, a pharmaceutical company headquartered in Dublin, Ohio, to recall $27,000 worth of Nembutal, an anesthetic, purchased by the State of Georgia. The drug is intended to be used as part of a 3-drug sequence to knock out condemned prisoners, then paralyze them and, finally, stop their hearts. As Prejean put it to Cardinal Chairman and CEO George Barrett, this use of the drug is ” not for the purpose of ‘improving people’s lives,’ as you say on your website, but to kill people, i.e. persons sentenced to death.”

Lundbeck is taking action to attempt to restrict use of its pentobarbital, as noted at the link.

Lethal Injection News From Georgia

Today's Atlanta Journal-Constitution reports, "Execution held up over drug debate."  It's written by Rhonda Cook.

A Fulton County judge has stopped the Thursday execution of a Savannah murderer, but it could be just a temporary delay.

Judge Wendy Shoob, after a day-long court session on Tuesday, ruled the state could not carry out the lethal injection of Roy Willard Blankenship as scheduled. She wanted time to review evidence and testimony she heard concerning a new drug that will be part of the three-drug cocktail Georgia uses to carry out lethal injections.

While the execution was put on hold, it could still be held Thursday if Shoob completes her review and rules against Blankenship. The execution warrant is in effect until noon on June 30, which means the lethal injection can be conducted any time between this Thursday and the following Thursday.

And:

If Blankenship's execution is carried out this week, his will be the first in Georgia using the new drug.

The AP report, by Greg Bluestein, is, "Judge temporarily halts Georgia execution."  It's via the Macon Telegraph.

The legal showdown unfolded weeks after Georgia announced it had obtained pentobarbital and was swapping it for sodium thiopental, a chemical that had long been used to sedate death row inmates in Georgia. The state's supply of sodium thiopental was seized by federal regulators questioning how officials obtained it.

Defense attorney Brian Kammer argued that the use of pentobarbital to carry out executions would risk needless pain and suffering for Blankenship, thus violating the Constitution's ban on cruel and unusual punishment. He noted that even Lundbeck Inc., pentobarbital's Danish manufacturer, has warned that using the drug to carry out the death penalty "falls outside its approved indications."

"Pentobarbital is a totally untested drug with respect to use on human patients," Kammer said, adding: "It's nothing more than experimenting on a human being."

State attorneys said the claims were unfounded, noting that the drug has been used in more than a dozen executions by states who had switched from sodium thiopental amid a supply shortage. And each time, said Georgia attorney Joseph Drolet, state and federal courts have allowed the drug to be used in lethal injections.

"Every court that has looked at this says pentobarbital can be substituted for sodium thiopental," Drolet said.

Shoob seemed skeptical of the state's argument throughout the daylong hearing. She expressed unease about Lundbeck's warning and raised concerns about a complaint filed Monday by the Southern Center for Human Rights that targets a physician who participates in Georgia executions.

That complaint asked the state medical board to revoke the license of Dr. Carlo Musso. His company was hired by state prison officials to participate in executions. It claimed Musso ran afoul of the law by importing the drug from overseas manufacturers without first registering with state regulators and later sold the drugs to officials in Tennessee and Kentucky.

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

More Commentary on Cost in California

Today's Los Angeles Times carries the editorial, "California's costly death penalty: The state is spending $184 million a year more on its 714 death-row inmates than it would if they had been sentenced to life without parole."

Time and again, academic studies have demonstrated that California's death penalty is a staggering waste of taxpayer money, a legal fiction that gives voters the impression they're being tough on crime even though condemned inmates typically expire of natural causes before making it to the death chamber. A new such study, which is notable because it is based on previously unavailable records from the state Corrections and Rehabilitation Department, comes to the same conclusions we've seen before. But the political outcome is unlikely to change until voters figure out that the problem lies with capital punishment itself, not with the dysfunctional way it's practiced in California.

The latest analysis, from U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, shows that California is spending $184 million a year more on its 714 death-row inmates than it would if they had been sentenced to life without parole. That tops the estimate of the California Commission on the Fair Administration of Justice, whose 2008 report said capital punishment was costing the state $137 million a year. The American Civil Liberties Union of Northern California, meanwhile, estimates we could save $1 billion over five years by eliminating the death penalty, in an analysis that includes the $400-million cost of making needed upgrades to San Quentin State Prison's death row.

In the Sacramento Bee, Bruce Maiman writes the OpEd, "Can California afford the millions it spends on the death penalty?"

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system 50 years ago, pronounced its project a failure and walked away from capital punishment as an effective penal model. Ineffective in curbing crime; inefficient as a tax expenditure, they said.

And:

Even Texas has pulled back on its "electric bench" after realizing that prosecuting capital cases costs three times more than sentencing someone to life without parole. In California, 54 death row inmates have died of natural causes: Life without parole is killing them more than we do.

Wanna fix California's capital punishment model? Find $85 million more annually to fund courts and lawyers, says the study. Or reduce the number of death penalty-eligible crimes and save $55 million annually. Or abolish capital punishment and save taxpayers about $1 billion every five years.

If locking 713 inmates away forever rather than executing them saves that kind of money in a state that's broke, the choice should be obvious. Who's the fiscal conservative now?

Earlier coverage of the California study begins at the link.

The article, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," should be available later this week at the Loyola of Los Angeles Law Review website.It's written by Judge Arthur Alarcon and Loyola Law prof Paula Mitchell.

Related posts are in the cost index.

Texas Execution

Texas carried out its sixth execution of 2011, tonight in Huntsville.  The Supreme Court refused to stay the execution, in spite of Milton Mathis' intellectual disability.  It was the state's 470th execution since 1982; the 231st execution in the administration of Governor Rick Perry since he assumed the office in December 2000, succeeding George W. Bush.

"Milton Mathis executed for Houston double slaying," is the AP report written by Michael Graczyk.  It's via the Houston Chronicle.

His lawyers told the Supreme Court in an appeal filed Monday that his claims of mental impairment hadn't been reviewed by any federal court because of a "procedural quagmire" and "freakish coincidence" of state and federal legal issues involving the timing of his appeals. Attorney Lee Kovarsky also argued that if Mathis was executed, he likely would have the lowest IQ of any Texas inmate put to death since the Supreme Court nine years ago barred execution of the mentally impaired.

One test cited in Mathis' appeals put his IQ as low as 62, below the threshold of 70 considered by the courts to be the level for deciding mental impairment. Other tests showed Mathis' IQ considerably higher.

There have now been 23 executions in the nation this year; 1,257 post-Furman executions since 1977.

Earlier coverage of Mathis' case begins at the link.

A Note on Rick Perry

As Texas Governor Rick Perry considers a GOP presidential bid, his record in Texas gets extra scrutiny.  Wendy Kaminer writes, "Rick Perry's Moral Problem," for the Atlantic.

Texas governor Rick Perry, the latest Republican presidential It Boy, is a self-styled moralist who wants his fellow Republicans "to stop apologizing for celebrating life." When did they ever start? And who asked them to apologize for harboring sincere religious or moral objections to abortion anyway? (Abortion rights activists just want them to stop imposing their beliefs on the rest of us.) What we do need to hear from Perry, however, is an apology for celebrating death.

Texas has long been a leader in executing people, and Perry has presided over some 200 executions during his tenure as governor. The most notorious of these was the execution of Cameron Todd Willingham, whom any just system would have exonerated, as David Grann demonstrated in the New Yorker. Grann's 2009 article brought some unwelcome publicity to the Texas death penalty regime, the immorality of which Perry confirmed; he had denied the defense a brief stay of execution citing gross evidentiary errors by the prosecution, and after Willingham's death, he obstructed an investigation of the case.

Since Perry became governor in December 2000, 230 men and women have been executed in Texas.  During the five years of the George W. Bush administration there were 152 executions.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Georgia Lethal Injection Drug Challenge

"Group files suit to block doctor's participation in executions," is the title of Rhonda Cook's report in the Atlanta Journal-Constitution, today.

Four days before Georgia is to execute a Savannah man in the murder of a 78-year-old woman, a human rights group is asking the state to revoke the license of a doctor who sometimes participates in lethal injections.

Roy Blankenship is scheduled to die by lethal injection Thursday for the 1978 murder of Sarah Mims Bowen, who was beaten to death. She was found in the bedroom  in her house just a block away from where Blankenship lived. Police followed bloody footprints to Blankenship's house.

On Monday, the Southern Center for Human Rights filed a complaint with the Georgia Composite Medical Board alleging that Dr. Carlo Anthony Musso illegally helped Kentucky and Tennessee secure a scarce sedative used in a three-drug cocktail for executions, sodium thiopental. The only U.S.-based manufacturer of the sedative announced in January that it was no longer making the drug.

The group said in its filing that Musso, who owns CorrectHealth and Rainbow Medical Associates, secured some of the drug and then sold it to at least two other states even though he was not registered with the Georgia Board of Pharmacy or the U.S. Drug Enforcement Administration to ship sodium thiopental across state lines.

“Dr. Musso violated a host of state and federal criminal laws,” the Southern Center for Human Rights wrote.

Musso, who could not be reached Monday, has denied selling drugs to Kentucky or Tennessee.

The filing says Musso secured the drug from a company in London at the same time Georgia went to the same source: Dream Pharma, which operated out of the back of a driving school. The DEA subsequently seized the drugs that the Georgia Department of Corrections had bought from Dream Pharma because the department was not registered to buy the sedative from the manufacturer or to ship it to the United States.

At the same time that the Southern Center for Human Rights was trying to block Musso or any doctors associated with his business from participating in any executions, Blankenship’s lawyer filed an appeal in Fulton Superior Court. Judge Wendy Shoob has scheduled a hearing for Tuesday.

An updated AP report is, "Complaint targets Georgia doctor over lethal injection drug," by Greg Bluestein.  It's via the Tennessean.

A civil rights group filed a complaint Monday asking Georgia’s medical board to revoke the license of a physician who participates in lethal injections in an attempt to halt an execution scheduled this week, claiming he illegally imported a drug and sold it to prison officials in Tennessee and Kentucky.

The filing by the Southern Center for Human Rights asks Georgia’s Composite Medical Board to revoke the license of Dr. Carlo Musso over his role in importing sodium thiopental, a sedative used in the three-drug lethal injection combination that was in scarce supply. Musso has participated in several executions in Georgia, and the complaint comes as the state prepares to execute an inmate on Thursday using a substitute drug for the first time.

The complaint, obtained by The Associated Press, raises fresh questions about how states obtained sodium thiopental amid the supply shortage, claiming that Musso ran afoul of the law by importing the drug from overseas manufacturers without first registering with state regulators. It also asks the board to revoke the licenses of physicians associated with his companies, Correct Health and Rainbow Medical Associates.

“This is a complaint about the law and whether the person importing and distributing the drug is properly licensed,” said Jessica Oats, a staff attorney with the center. “Dr. Musso was not. Georgia’s Medical Board should revoke Dr. Musso’s license to practice medicine. At the very least, it should suspend his license pending a full investigation.”

And:

The complaint filed Monday includes records from prison officials in Tennessee and Kentucky who said they obtained the drug from Musso’s companies. The Drug Enforcement Administration later took stockpiles of the drugs from Georgia, Tennessee and Kentucky amid questions about how they were obtained. The investigation is still ongoing.

“Just as the DEA seized the drugs purchased by the Georgia DOC, so did the DEA follow Dr. Musso’s unregistered sales of the illegally obtained sodium thiopental and seize the drugs purchased by Kentucky and Tennessee,” the filing said.

Earlier coverage of lethal injection issues from Georgia begins at the link. 

Coverage of the California Cost Study

"Study offers yet another reason for California to abolish the death penalty," is the title of an editorial in today's Silicon Valley Mercury News.

Gov. Jerry Brown has proved that he can do the right thing even if it makes people angry. Ask leaders of his own Democratic Party, who are livid that he trashed their budget last week and vetoed it a day after they passed it.

Now Brown needs to throw politics to the wind and commute the sentences of California's prisoners on death row to life in prison. With a scribble of his pen, he can save $184 million a year that the state now squanders on its 714 death row inmates and redirect the money to communities that need it for schools and public safety.

This would be Brown's toughest political call to date, but we continue to believe it's the right thing to do, if only from a cost/benefit perspective. The ACLU and others have been calling for it, and a new, highly credible study by U.S. 9th Circuit Judge Arthur Alarcon and Loyola Law School professor Paula Mitchell draws on previously unavailable information to make the case all but indisputable. It is fiscal insanity to continue to waste this money on prisoners who, locked away forever, are no danger to society.

California has spent about $4 billion on 13 executions since the death penalty was reinstated in 1978 -- a staggering $308 million per execution, according to the study, which documented the annual price tag -- $184 million -- for housing inmates on death row instead of sentencing them to life with no chance of parole. The tab will climb to $9 billion by 2030, based on current projections.

Brown struck a blow for fiscal sanity in May when he canceled construction of the new $356 million death row at San Quentin Prison. The current death row had just under 600 inmates in 2000, when it was dubbed "the largest in the Western Hemisphere." Today it has 714, and 28 of them were condemned just in 2010.

Beyond the fiscal reality, the death penalty is archaic and unfairly imposed. A total of 137 nations have abolished it. Among the rest, the United States finds itself in a who's who of the world's worst human rights abusers, including Uganda, Bahrain, Iran, Libya and China.

The San Francisco Chronicle reports, "Study: Death penalty costlier than life sentences."  It's written by Kevin Fagan.

Maintaining the death penalty in California costs at least $184 million more a year than it would simply to leave killers in prison for life, and the average wait for a prisoner between conviction and execution has grown to more than 25 years, a report due to be released next week says.

The three-year study by a federal judge and a law professor also found that California taxpayers have spent an average of $308 million for each of the 13 executions conducted since capital punishment was reinstated in the state in 1978.

The study was conducted by Judge Arthur Alarcon, who sits on the Ninth U.S. Circuit Court of Appeals, and his law clerk, Loyola Law School Professor Paula Mitchell, who spent three years examining federal, state and local costs associated with capital punishment.

Several other reports in recent years, including one in 2009 by the American Civil Liberties Union of Northern California, have also concluded that executing prisoners is far more expensive than incarcerating them for life.

At the end of their 224-page report, Alarcon and Mitchell suggest that voters change the capital punishment system through an initiative, either to streamline the legal appeals and conviction process or to do away with executions altogether.

"We're not in the business of drafting initiatives, but we do propose ways the voters should consider to remedy this horrible situation," Mitchell said Monday. "We really wanted for this study to be academic and objective and to leave aside the question of morality over the death penalty so that voters can focus clearly on what they are spending.

"If people really knew what the death penalty costs us," Mitchell added, "I doubt they would want to continue it."

Mitchell said she opposes capital punishment, but her co-author does not.

Most surveys in the state, including a 2010 Field Poll, show continuing support for the death penalty. However, there have been no executions in California since 2006 because of legal challenges over whether the state's execution procedures violated the Constitution's ban on cruel and unusual punishment.

In reaction to the report, state Sen. Loni Hancock, D-Oakland, said she will introduce legislation next week that could lead to a ban on capital punishment. Her bill would generate an initiative proposing that voters abolish executions and convert existing death sentences to life without possibility of parole.

The Mercury News carries, "Sen. Loni Hancock, D-Berkeley, to introduce bill to abolish death penalty."  It's by Josh Richman of the Oakland Tribune.

An East Bay lawmaker said Monday she'll introduce a bill which, if passed and then approved by voters, would abolish California's death penalty.

The forthcoming bill from state Senate Public Safety Committee Chairwoman Loni Hancock, D-Berkeley, would convert already-condemned inmates' sentences to life in prison without possibility of parole.

"Capital punishment is an expensive failure and an example of the dysfunction of our prisons," Hancock, who also chairs the budget subcommittee that oversees prison spending, said in a news release. "California's death row is the largest and most costly in the United States. It is not helping to protect our state; it is helping to bankrupt us."

California now has 714 people on death row but has executed only 13 since reinstating its death penalty in 1978. Yet taxpayers have spent more than $4 billion on death penalty proceedings during that time, according to a report -- first reported by the Los Angeles Times -- that Hancock cited Monday, and that price tag will rise to $9 billion by 2030.

"Study after study has shown that capital punishment as a penalty is not a deterrent and that the multiple appeals that drag on for years and years multiply costs and add to the uncertainty and anxiety of victims," Hancock said. "The death penalty failings cannot be fixed; it must be repealed. It is time for the Legislature to act."

"Death penalty costs California more than $300m per execution," by Ed Pilkington in the Guardian.

The full burden of the death penalty in California has been laid bare by new research that calculates that each of the 13 prisoners executed in the state over the past three decades has cost more than $300m (£185m).

The study, by two senior legal figures, includes costs incurred at both state and federal level in keeping 714 death row inmates incarcerated as well as steering them through the tortuous judicial process all the way to the death chamber. The average length of time between conviction and execution in California now stands at more than a quarter of a century – double the national average.

The report's authors, a senior judge, Arthur Alarcon, and a professor at Loyola law school, Paula Mitchell, do not make any judgement for or against the death penalty. They simply ask whether the system makes sense and whether Californian voters are getting what they wanted.

The answer is a resounding no, according to the authors. Since 1978 California and the US government have together spent some $4bn on the state's death row, yet only 13 prisoners have been executed – an average of $308m for each one. The study, first reported by the Los Angeles Times, warns that the total figure will rise to about $9bn by 2030.

Under California's peculiar penchant for referendums, the death penalty can only be reformed or revoked by voters themselves. Since 1978 voters have consistently opted to widen the capital punishment net so that the state now has the most sweeping laws in the country, with some 39 eligible crimes.

Yet in practice, the legal process has become so cumbersome, and the dearth of expert death penalty lawyers so extreme, that executions happen rarely if at all. Since 2006 there have been no executions as the state's use of lethal injections has been mired in legal challenges.

Earlier coverage of the California death penalty cost study begins at the link.  The article, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," should be available later this week at the Loyola of Los Angeles Law Review website.

Related posts are in the cost index.

Texas Execution Scheduled

"US Supreme Court asked to stop Texas execution," is the title of Michael Graczyk's AP report, via the Fort Worth Star-Telegram.

Defense lawyers asked the U.S. Supreme Court to stop the execution Tuesday evening of a Texas inmate accused of fatally shooting two people inside a Houston crack house, arguing that he is mentally impaired.

Milton Mathis, 32, was convicted for a shooting spree that killed Travis Brown III, 24, and Daniel Hibbard, 31, less than two weeks before Christmas in 1998. A 15-year-old girl was shot and paralyzed.

Mathis, who has claimed he started shooting in self-defense, was on probation for aggravated robbery when he was arrested. His lethal injection is scheduled to begin at 6 p.m. Tuesday.

Mathis is among at least nine Texas inmates with execution dates scheduled in the coming months. Five inmates have been executed this year in Texas, the nation's busiest death penalty state.

In their appeal, his attorneys contend that Mathis is mentally impaired and therefore ineligible for the death penalty. Other courts have rejected the arguments. His attorneys also argue that he was the victim of "a freakish coincidence of federal judicial error and state procedural law" that hasn't allowed his mental impairment claim to be considered by the federal courts.

Tests cited in his appeals put his IQ as low as 62, below the threshold of 70 considered by the courts to be the level for deciding mental impairment. Other tests, however, show his IQ considerably higher. State attorneys have said low test results may have been the result of his heavy drug use, including PCP and "Fry," a marijuana cigarette soaked in embalming fluid laced with PCP, alcohol and codeine cough syrup.

Earlier coverage of Milton Mathis' case 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.

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

According to TDCJ, seven additional executions are scheduled in Texas during 2011; more are likely to be set in Texas this year.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

To date there have been 22 executions in the nation this year; 1,256 post-Furman executions since 1977.

The High Cost of Wrongful Convictions

That's the title of a new report on Illinois exonerations issued today by the Better Government Association and the Center on Wrongful Convictions at Northwestern University.

Wrongful convictions of men and women for violent crimes in Illinois have cost taxpayers $214 million and have imprisoned innocent people for 926 years, according to a seven-month investigation by the Better Government Association and the Center on Wrongful Convictions.

The joint investigation, which tracked exonerations from 1989 through 2010, also determined that while 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 59 other felonies.

"I am astounded," said former U.S. Attorney Thomas Sullivan, who chaired the Capital Punishment Reform Committee established by the Illinois General Assembly. "Those are astounding numbers in terms of total years in prison and dollars spent."

Moreover, the 94 felonies in that crime spree may be just a fraction of the total number of crimes committed by the actual perpetrators. The investigation found that the 85 exonerations left 35 murders, 11 rapes, and two murder-rapes with no identified perpetrators and thus no way to add up their accumulated crimes.

While the BGA/CWC study revealed that almost all of the wrongful convictions were caused by multiple factors, the cause most commonly alleged was government error and misconduct by police, prosecutors, and forensic officials.

The investigation was conducted by the non-profit, non-partisan BGA and the Center on Wrongful Convictions, a non-profit organization, based at Northwestern University School of Law, which has been instrumental in the exoneration of 23 innocent men and women in Illinois.

The investigation’s findings are based on the cases of 83 men and two women who were charged with murder, attempted murder, rape, kidnapping, and armed robbery, and who were exonerated between the years 1989 (chosen because it is the start of the DNA-exoneration era in Illinois) and 2010.

"Wrongful convictions cost Illinois $214 million," is the title of the AP report, via the Munster (IN) Times.

A new investigation has found that the wrongful convictions of 85 people have cost Illinois taxpayers $214 million.

The seven-month investigation by the Chicago-based Better Government Association and the Center on Wrongful Convictions at Northwestern University's law school found the bulk of the cost -- $156 million -- was settlements and judgments paid to those exonerated.

"While the BGA/CWC study revealed that almost all of the wrongful convictions were caused by multiple factors, the cause most commonly alleged was government error and misconduct by police, prosecutors, and forensic officials," the groups said in a report published on the BGA website.

The groups predict the cost of wrongful convictions will rise because 16 civil lawsuits filed by exonerated individuals still need to be settled or go to trial, including some by men who allege torture by officers under a decorated former Chicago police lieutenant.

Former Lt. Jon Burge was convicted last year of federal perjury and obstruction of justice charges for lying about torture. Suspects for decades had alleged that Burge and his officers tortured them into confessing to crimes ranging from armed robbery to murder.

The Chicago News Cooperative post is, "Adding Up the Costs of Wrongful Convictions," by Kari Lydersen.

A few days later, the cashier picked Jerry Miller out of a police lineup. Miller, who had never been arrested before, had been stopped by an officer in the area several days earlier while seeking a job at a doughnut shop. The officer thought he resembled the composite sketch of the rapist.

Miller was convicted of rape, robbery and aggravated kidnapping and spent 25 years in prison. Robert Weeks, the man later linked to the rape by DNA evidence, went on to rape or assault four more women, injure police officers in three other attacks and commit other robberies and beatings over 23 years.

Weeks was eventually convicted of two of the rapes and sentenced to life in prison. Miller received $6.3 million in the settlement of a lawsuit against the city.

Miller’s case is one of 85 analyzed in a sweeping report being released Monday by the Better Government Association and the Center on Wrongful Convictions at Northwestern University School of Law.

The association, a nonprofit watchdog and advocacy group, said the study was the first to document the economic and social costs of the 85 convictions in the state that were overturned between 1989 — the advent of modern DNA testing — and 2010. In all, the study said, those wrongful convictions have cost Illinois taxpayers $214 million, and the amount will probably increase to $300 million once 16 pending lawsuits are settled.

“The public pays in multiple ways” for errors or willful misconduct by law enforcement officials, said John Conroy, a veteran reporter, association senior investigator and co-writer of the report. “The whole community pays when the real criminal is left on the street and goes out and commits other felonies.”

The perpetrators of crimes for which others were convicted went on to commit at least 94 more felonies, including 14 murders and 11 sexual assaults, according to the study. It said 83 men and 2 women spent a total of 926 years behind bars for crimes they did not commit.

And:

In 81 of the 85 cases, the study found what it said was either misconduct or error by state officials — in 66 cases by the police, in 44 by prosecutors and in 29 by forensic specialists.

“These aren’t garbage men; these are highly trained police officers and prosecutors who passed bar exams and took an oath on the Bible to do their jobs,” said Andy Shaw, executive director of the association. “But they didn’t.”

In Miller’s case, his lawyers alleged police misconduct, including suppression of a photo lineup in which the parking garage cashier and another witness may have identified people other than Miller. The lawyers also said the state crime lab’s early DNA testing was erroneous and was contradicted by independent experts.

Related posts are in the cost, exoneration, and report indexes.

California's Costly Death Penalty

Today's Los Angeles Times reports, "Death penalty costs California $184 million a year, study says:  A senior judge and law professor examine rising costs of the program. Without major reforms, they conclude, capital punishment will continue to exist mostly in theory while exacting an untenable cost."  It's written by Carol J. Williams.  A graph accompanies the article.

Here's an extended excerpt:

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs.

The examination of state, federal and local expenditures for capital cases, conducted over three years by a senior federal judge and a law professor, estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year.

The study's authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000.

In their research for "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," Alarcon and Mitchell obtained California Department of Corrections and Rehabilitation records that were unavailable to others who have sought to calculate a cost-benefit analysis of capital punishment.

Their report traces the legislative and initiative history of the death penalty in California, identifying costs imposed by the expansion of the types of crimes that can lead to a death sentence and the exhaustive appeals guaranteed condemned prisoners.

The authors outline three options for voters to end the current reality of spiraling costs and infrequent executions: fully preserve capital punishment with about $85 million more in funding for courts and lawyers each year; reduce the number of death penalty-eligible crimes for an annual savings of $55 million; or abolish capital punishment and save taxpayers about $1 billion every five or six years.

Alarcon, who prosecuted capital cases as a Los Angeles County deputy district attorney in the 1950s and served as clemency secretary to Gov. Pat Brown, said in an interview that he believes the majority of California voters will want to retain some option for punishing the worst criminals with death. He isn't opposed to capital punishment, while Mitchell, his longtime law clerk, said she favors abolition. Both said they approached the analysis from an impartial academic perspective, aiming solely to educate voters about what they are spending on death row.

Alarcon four years ago issued an urgent appeal for overhaul of capital punishment in the state, noting that the average lag between conviction and execution was more than 17 years, twice the national figure. Now it is more than 25 years, with no executions since 2006 and none likely in the near future because of legal challenges to the state's lethal injection procedures.

The long wait for execution "reflects a wholesale failure to fund the efficient, effective capital punishment system that California voters were told they were choosing" in the battery of voter initiatives over the last three decades that have expanded the penalty to 39 special circumstances in murder, the report says.

Unless profound reforms are made by lawmakers who have failed to adopt previous recommendations for rescuing the system, Alarcon and Mitchell say, capital punishment will continue to exist mostly in theory while exacting an untenable cost.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state's 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

The heightened security practices mandated for death row inmates added $100,663 to the cost of incarcerating each capital prisoner last year, for a total of $72 million.

The study's findings replicated many of those made by the bipartisan California Commission on the Fair Administration of Justice in 2008, and a year later, when the American Civil Liberties Union of Northern California researched the death penalty's fiscal effects ahead of public hearings on how to revise lethal injection procedures after a federal judge ruled the state's practices unconstitutional.

As with the recommendations in Alarcon's 2007 report, none of the remedies outlined by the commission chaired by former Atty. Gen. John Van de Kamp has been adopted by lawmakers or put to the public for a vote.

The article should be available later this week at the Loyola of Los Angeles Law Review website.

Earlier coverage of the cost issue in California begins at the link.  Related posts are in the cost index.

Ambassador Thomas Pickering on the Leal Case

His Letter to the Editor of the Washington Post is titled, " Delay this execution."

The Post got it right in calling on government officials to diligently uphold our international treaty commitment to allow foreigners prompt and ongoing consular assistance [editorial, June 14]. My experience as a U.S. diplomat made clear that compliance with international obligations is critical to protecting Americans abroad, meeting foreign policy objectives and preserving our reputation as a law-abiding nation. The country’s interests are not served by violating international law — as happened in the case of death row inmate Humberto Leal Jr.

These concerns are why I joined several former U.S. diplomats and State Department officials in urging Texas Gov. Rick Perry (R) to stay Mr. Leal’s execution. Congress recently introduced sound legislation to bring the United States into compliance with our undisputed treaty obligations and to allow federal court review of the violations of consular rights in cases such as Mr. Leal’s. Texas should stay his execution while legislation that could affect his case remains pending.

Pickering was undersecretary of state for political affairs from 1997 to 2000 and ambassador and representative to the United Nations from 1989 to 1992.  The Post editorial, "Why the U.S. should allow arrested foreigners to contact their consulates," is noted in this StandDown post.

Earlier coverage of the Leal case begins with a New York Times editorial.  Related posts are in the foreign citizen and international law indexes.

The Treaty and the Law

That's the title of an editorial in the Saturday New York Times on the Humberto Leal case.

Humberto Leal García Jr., a Mexican citizen who faces execution in Texas next month, has petitioned Gov. Rick Perry for a six-month reprieve. He is asking for a stay under a vital international law, the Vienna Convention on Consular Relations, which requires that foreign nationals who are arrested be told of their right to have their embassy notified of that arrest and to ask for help.

In recent years, the treaty has provided important protection for Americans who have been detained in Iran, North Korea and elsewhere. Mr. Leal was not notified after his arrest of his right to contact his embassy. But the Supreme Court ruled in 2008 that Texas did not need to comply with the treaty because there is no federal law requiring that states do so.

Senator Patrick Leahy of Vermont on Tuesday introduced a bill that makes clear that federal law requires that states tell foreign nationals who have been arrested that they can contact their consulates for help.

For those who were convicted and sentenced without being told, the bill would let them ask a federal court to review their case and decide whether the outcome would have been different if they had had diplomatic help. After the bill was introduced, Mr. Leal petitioned Federal District Court for a stay to keep Texas from “rushing to execute” him before Congress has time to act.

And:

For the sake of justice, the governor and court should grant the stays. For the protection of foreigners arrested here, and American citizens arrested abroad, Congress should pass Senator Leahy’s bill.

Earlier Leal coverage begins at the link.  Related posts are in the foreign citizen and international law indexes.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

Racial Justice Act Remains Law in NC

"N.C.’s Racial Justice Act Survives (At Least For Now)," is the title of Nathan Koppel's WSJ Law blog post.

We’ve done a number of posts (see here and here) on North Carolina’s Racial Justice Act, which allows death row inmates and defendants to challenge their death sentences on the grounds that they were the product of racial bias.

The law allows judges to consider whether statistics and anecdotal evidence of racial disparities in death sentences warrant the dismissal of a death sentences. Much of North Carolina’s death row population has sought to overturn their death sentences in the wake of the law, which was enacted in 2009.

For months, Republicans in the North Carolina legislature have sought to repeal the Racial Justice Act, contending that it has clogged courts with a barrage of unfounded claims.

Legislative critics, it appears, came close to nullifying the law but fell short of the mark, the AP reports.

Yesterday, the North Carolina House voted in favor of repealing the act, but it stalled last night in the Senate, where one more vote was needed to deep-six the law, according to AP.

As it stands, the Senate will adjourn and will not reconsider whether to repeal the Racial Justice Act until its next session, in May 2012.

Today's News & Observer of Raleigh has, "Racial Justice Act repeal hits a roadblock."  It's written by Michael Biesecker.

Following through on a campaign promise from last year's battle for control of the state legislature, victorious House Republicans voted Thursday to repeal North Carolina's Racial Justice Act, only to have their bid stall in the Republican-controlled Senate.

Senate leaders said late Thursday that it had been returned to committee and that they are unlikely to take the bill up before adjournment.

"When we come back in May, I guess we will pick it up then," said Sen. Tom Apodaca, a Republican from Hendersonville. "We had our schedule for tonight, and that was not on it. I want to go to the mountains."

Approved in a 2009 party-line vote when Democrats were in charge, the act allows an inmate facing the death penalty to file an appeal asking a judge to consider whether racial prejudice played a role in his or her sentence. If such evidence is compelling, the law gives state judges the discretion to commute death sentences to life in prison.

On Thursday, Republicans said the new law had resulted in clogged courts as nearly every inmate on death row had filed a Racial Justice appeal.

"This basically put a moratorium on the death penalty," said Rep. Justin Burr, a Republican from Albemarle. "The legislation will move North Carolina back in the right direction. We are one of only two states who have a law like this, and that's two too many."

Democrats countered by citing statistics that blacks convicted of killing whites are more than twice as likely to get the death penalty as white offenders. "Until 1965, racial discrimination was legal in this state," said Rep. Paul Luebke, a Durham Democrat. "Race discrimination is part of our history, part of our heritage. It is wrong to pretend that racial discrimination does not still exist in this state."

Earlier coverage of the RJA begins at the link.  Related posts are in the race and state legislation indexes.

As always, thanks to Gerda Stein for distributing North Carolina news.

 

An Anthony Graves Update

Texas' most recent death row exoneree, Anthony Graves, is interviewed by Brandi Grissom of the Texas Tribune.  You can watch streaming video at the link.  Here's an excerpt from the introduction:

The state of Texas incarcerated him for nearly two decades — and nearly executed him twice — for murders he didn't commit. And now, the state is balking at giving him the $1.4 million he's owed for all the years he spent wrongfully imprisoned.

Despite it all, Anthony Graves is remarkably positive. He's just happy to be off death row, and elated to be working to bring hope to his friends who are still there. Last week, Graves sat down with the Tribune at his downtown Austin office at the Texas Defender Service, a nonprofit organization that works with death row inmates.

Graves was convicted in 1994 of killing five family members in Somerville before lighting the house ablaze. The other young man convicted in the slayings, Robert Carter (who was executed in 2000), eventually admitted he was the lone killer, but it took another decade before the Burleson County district attorney dropped the charges against Graves and released him from custody. He has been free since October.

Getting used to a world that has changed dramatically since he was a part of it has been surreal and at times scary, Graves said. But he said he's just happy to have the opportunity now to make choices in his life and help others who are in the same situation he faced.

The Tribune interview came a day after Graves' first return visit to death row. This time, he talked with his friends — who are also now his clients — on the free side of the plexiglass, wearing a suit and investigating their cases. For him, it was the fruition of 18 years of death row dreams.

The exonerated 45-year-old talked about life on death row, about the scariness of the free world and the work he said is now his life's mission: abolishing the death penalty.

Earlier coverage of Anthony Graves' exoneration and battle for compensation begins at the link.  All coverage is in the Anthony Graves index.

Mark White on the Milton Mathis Case

The former Texas attorney general and governor writes the OpEd, "Justice demands a review in Texas death penalty case," for today's Dallas Morning News.

In less than a week, Milton Mathis, a man with mental retardation, is scheduled to be executed by the state of Texas. This execution is scheduled despite the fact that it is unconstitutional to execute anyone with mental retardation and no federal court has evaluated the mental retardation evidence in the case.

I unequivocally support the death penalty in appropriate cases. During my term as governor of Texas, 19 individuals were executed. I am not here to express sympathy for Mathis. His crimes are horrible. He was convicted of shooting to death Travis Brown III and Daniel Hibbard in their Fort Bend County home. He shot another teenage girl in the same rampage, leaving her paralyzed from the neck down.

However, the death penalty is meant for those criminals who are the most blameworthy, those who deserve to pay for their crimes with their lives. Mental retardation unquestionably affects blameworthiness, since those with mental retardation are unable to fully appreciate the nature of their actions. They may suffer from disabilities affecting moral reasoning, impulse control and how they understand cause and effect.

The evidence shows that Mathis clearly has mental retardation. According to the American Psychological Association, the threshold for determining mental retardation is an IQ of 70 to 75. Mathis has repeatedly scored in the low 60s — well below this cutoff — including a 62 on a test administered by the Texas Department of Criminal Justice, the very agency responsible for carrying out his execution. Also, Mathis has suffered from obvious mental disabilities since childhood: He failed the first, fifth and eighth grades and dropped out of high school in ninth grade. He has had problems with functions that come easily to most of us, like dressing himself.

The U.S. Supreme Court ruled almost a decade ago that the execution of those with mental retardation is unconstitutional. Unfortunately for Mathis, this ruling came weeks after his capital conviction was finalized. So Mathis has had to navigate the confusing labyrinth of state and federal law that govern legal claims after convictions in order to present the evidence of his mental retardation to a court.

And:

A petition will be filed with the U.S. Supreme Court requesting that they order a hearing in federal court to consider the evidence that Mathis has mental retardation. The Supreme Court should grant the petition so that this evidence can be fully considered.

If the court refuses to order an examination of the evidence, justice can still be done if Gov. Rick Perry stays the execution so that his office can make an independent inquiry into the procedures and facts surrounding Mathis’ death sentence. The governor of Texas is authorized by law to take action to prevent precisely this sort of injustice. Perry has correctly refused to grant clemency in cases where all the evidence has been reviewed fully and fairly. But this is not such a case. The review is not complete, and the evidence has not been fully heard.

The fairness of Texas’ death penalty depends on a complete review of the evidence in this case.

White co-chairs the Constitution Project’s Death Penalty Committee.

Earlier coverage of the case of Milton Mathis begins at the link.  v

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.

Federal Petition Filed for Leal

Today's San Antonio Express-News reports, "Death-row petition in S.A. killing now in federal court."  It's written by Guillermo Contreras.

A Mexican national convicted of killing a 16-year-old girl in San Antonio in 1994 has turned to the federal courts in an effort to block his execution next month.

On Thursday, lawyers for Humberto Leal Jr., 38, filed in San Antonio a federal habeas petition and a motion for a stay of execution, which is set for July 7.

The appeal asks U.S. District Judge Orlando Garcia to halt the execution while Congress weighs legislation introduced Tuesday that would address an international court's concern that Mexican nationals on death row were not informed of their right to contact their consulate when they were arrested.

In 2004, the International Court of Justice in The Hague found that neither Leal nor 50 other Mexican citizens on death row in the United States had been told they could contact their consulate and said the legal remedy was to grant new hearings to them to determine if consular access would have affected the outcome of their capital murder trials.

A year later, then-President George W. Bush tried to force states to hold such hearings and Texas fought the order. The case of Mexican national Jose Medellin went to the U.S. Supreme Court, which ruled that only Congress could require states to follow the international court's ruling.

Five months later, Medellin was executed for the rape and murder of two Houston girls.

On Tuesday, U.S. Sen. Patrick Leahy, D-Vt., introduced the Consular Notification Compliance Act. If passed, it would give federal courts jurisdiction to review cases of foreign nationals on death row in the United States, and ensure that all foreign nationals charged with a capital offense be informed of their right to contact their consulates.

Leal's lead lawyer, Sandra L. Babcock, a professor at Northwestern University School of Law in Chicago, wrote in the federal appeal that Leal “has a federal due process right to remain alive so that he can benefit from the legislation.”

The AP filing is, "Mexican national sues to block his Texas execution," via the Houston Chronicle.

A Mexican national on Texas' death row for the 1994 beating death of a teenage girl filed a lawsuit Thursday in federal court in San Antonio asking a judge to block his execution next month.

Humberto Leal Jr., 38, of Monterrey, Mexico, is scheduled to die in the Texas death chamber in Huntsville on July 7 for the rape and fatal bludgeoning of 16-year-old Adria Sauceda in San Antonio.

His attorneys want a federal judge to allow time for Congress to consider legislation introduced this week that would allow federal judges to review the cases of foreign nationals awaiting execution in the United States, the San Antonio Express-News reported. The Texas attorney general's office had no comment on the latest appeal.

In 2004, the International Court of Justice in The Hague, Netherlands, found that Leal and 50 other Mexican citizens awaiting execution in the United States weren't advised of their right under the 1963 Vienna Convention to contact their consulate when they were arrested.

Previous court decisions have rejected Leal's past appeals based on the assertion that he was denied the advice of the Mexican consulate.

The International Court had urged new hearings in courts where the 51 people were convicted to determine if consular access would have affected their verdicts and sentences.

A year later, in 2005, President George W. Bush agreed with an International Court and urged that the new hearings be held. The U.S. Supreme Court, however, subsequently overruled Bush and the impact of the International Court decision. In an appeal brought by Mexican national Jose Medellin, a court majority ruled that only Congress could require states to follow the International Court's ruling.

In June 2009, the 5th U.S. Circuit Court of Appeals ruled that a federal district judge was wrong when he said he had no jurisdiction in Leal's case. However, the appeals court said the Supreme Court's ruling last year ultimately shut the door to Leal's appeal.

Earlier coverage of the international treaty issues in Humberto Leal's case begins with the preceding post.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

Rick Perry and the Vienna Convention

That's the title of Massimo Calabresi's post at Time.

Rick Perry may be a potential threat to Barack Obama’s 2012 reelection, but for now the administration is making a long-shot play to take advantage of the Texan’s potential national ambitions. At issue: whether states can execute foreigners who have been denied access to their country’s diplomats.

In theory, they can’t. The U.S. Senate ratified in 1969 a treaty called the Vienna Convention on Consular Relations, which requires countries to allow diplomats access to detained foreigners, as when a pinstriped consular official visits a detained American in some Third World dungeon.

George W. Bush abrogated that part of the treaty (the U.S. still abides by other parts, like treating foreign embassies as if they are outside the jurisdiction of U.S. law). When previous attempts were made to force compliance with the treaty, the Supreme Court ruled broadly that states didn’t have to abide by any treaty unless both chambers of Congress explicitly “implement” it.

Now Texas is preparing to execute on July 7 a Mexican national named Humberto Leal Garcia, Jr., who was convicted in 1994 of sexually assaulting and killing a 16-year-old girl, Adrea Sauceda, in San Antonio, but wasn’t given access to Mexican consular officials after his arrest. The administration mustered diplomats from both parties, military officers and former judges to try and convince Perry to stay Leal’s execution out of respect for the treaty and to protect the thousands of Americans detained abroad every year. In response, Perry spokeswoman Lucy Nashed told Reuters that “the governor would have to receive a favorable recommendation from the Board of Pardons and Paroles to consider the clemency requested.”

The Obama administration’s next move was to help draft a bill, introduced this week by Sen. Patrick Leahy, that would partially implement the Vienna convention, requiring a stay of execution in capital cases where the guilty person has been denied consular access. Leal’s lawyers are expected to seek a stay of execution from the U.S. Supreme Court until Leahy’s bill can get an up or down vote. Obama’s new solicitor general, Don Verilli, will have to consider how to weigh in on the subject.

This should all be catnip to Perry. He became a darling of the Tea Party by telling anti-tax activists at the state capitol on April 15, 2009, that Texas might secede if push came to shove with Washington. “We’ve got a great union. There’s absolutely no reason to dissolve it,” Perry said, “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.” And he’s been an outspoken advocate of reasserting 10th amendment states’ rights.

But the administration is hoping that now that Perry appears to have national ambitions, he might seek to build credentials as a statesman by striking a procedural compromise that keeps Leal on death row without directly flouting the treaty.

It’s a long-shot play, to say the least.

More Leal news in the next post.  Earlier coverage of Humberto Leal's case begins at the link.

Texas Execution

Texas carried out its fifth execution of the year, last night in Huntsville.  It was the state's 469th post-Furman
execution since 1982.  Texas has far and away the most active execution chamber in the nation, accounting for more than 37% of America's post-Furman executions.

"Texas executes inmate who killed fellow prisoner," is the AP report by Michael Graczyk, via the Houston Chronicle.

Convicted killer Lee Andrew Taylor was executed Thursday evening for fatally stabbing a fellow Texas prisoner, his second murder in a four-year span.

Taylor, 32, used his final statement to tell his mother and wife he loved them and to apologize for the 1999 slaying of Donta Greene at the Texas Department of Criminal Justice Telford Unit near Texarkana. He maintained he was acting in self-defense and criticized the death penalty as "a grave injustice."

"I defended myself when I killed your family member," he said, looking at relatives of Greene, who were among those to watch him die. "Prison is a bad place. There was eight against me.

"I didn't set out to kill him. I am sorry that I killed him, but he would not have been in prison if he was a saint. I hope y'all understand that."

Alabama also carried out an execution, Yesterday.  Reuters posts, "Alabama executes man for brutal 1995 murder.

Eddie Duval Powell, 41, was pronounced dead at 6:30 p.m. local time at the Holman Correctional Facility in Atmore, said Department of Corrections spokesman Brian Corbett.

Powell had been on death row for 12 years, and his execution was the fourth in Alabama this year.

His execution was one of two carried out on Thursday night, bringing the number of people put to death in the United States this year to 22. There were 46 executions in 2010.

To date, there have been 22 executions in the nation this year; 1,256 post-Furman executions since 1977.

According to TDCJ, eight additional executions are scheduled in Texas during 2011, including one more this month.  More execution dates are likely to be set in Texas this year.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

National News Coverage of Leal Treaty Issue

Today's New York Times reports, "Texas Death Row Case Resonates to a Treaty."  It's by Brian Knowlton.  For those new to the issue, it's a must-read recap with new details, as well.

The death penalty case against Humberto Leal García Jr. did not seem like the sort to draw attention from a high-profile list of former U.S. diplomats, prosecutors, politicians and military men: He was convicted in Texas of raping, kidnapping and murdering a 16-year-old girl, Adria Sauceda, bludgeoning her with a heavy chunk of asphalt.

But Mr. Leal, a Mexican citizen, was not immediately informed of his right, under an international treaty signed by the United States, to seek assistance “without delay” from Mexican consular officials in navigating a confusing foreign legal system.

Such help might have been crucial for someone like Mr. Leal who, his lawyers say, had few resources and a limited understanding of his plight.

“This was an eminently defendable case, and I don’t think it would have been a capital case if he’d had decent trial counsel” from the start, said Sandra L. Babcock, a Northwestern University law professor representing Mr. Leal on behalf of the Mexican government.

With Mr. Leal’s execution approaching on July 7 in Texas, where 14 other Mexicans are also on death row, calls have mounted for Governor Rick Perry to grant a stay.

The former officials and military men urging a delay say that only by zealously enforcing terms of the Vienna Convention on Consular Relations at home, with its guarantee of quick consular notification, can the United States expect similar treatment for Americans arrested abroad.

More than 6,600 Americans were arrested abroad in the year that ended on Sept. 30, by State Department count; nearly half were incarcerated. They include exchange students accused of buying drugs, diplomats caught up in protest marches and tourists who stray across borders.

“Consider a traffic accident in a foreign country,” said Mark Warren, an Ottawa-based legal researcher who specializes in consular rights issues. “In a lot of countries you get arrested, you are held, you are interrogated, you may be held incommunicado for weeks. It’s not speculative — this happens a lot — and if you don’t have access to your consulate, you have no friends, you are completely isolated.”

Observing the treaty is not “a favor to foreigners” but a “plainly compelling” national interest in protecting Americans abroad, said John B. Bellinger III, who was the top State Department lawyer under President George W. Bush and who joined other former diplomats in a plea to Mr. Perry, the Texas governor. Mr. Perry is awaiting a recommendation from the State Board of Pardons, his office said, though Texas has rarely granted clemency.

Senator Patrick Leahy, chairman of the Senate Judiciary Committee, introduced legislation this week to address cases like Mr. Leal’s. The bill, which has the backing of the Obama administration, would provide for review by a federal court when a prisoner facing a death sentence claims his consular rights were violated, and calls for a stay of execution, if necessary, to allow such a review.

But it does not extend to noncapital cases, and no comparable bill has been introduced in the House of Representatives.

“This doesn’t go as far as we’d like,” said a Senate aide who spoke on the condition of anonymity because the final legislative language had not yet been released, “but given the urgency of the cases involving the death penalty, we felt we had to act now and this had the best chance of securing bipartisan support.”

Though the Senate ratified the Vienna Convention in 1969, its consular notification requirement was often overlooked. Mexico, citing the cases of 51 foreign citizens then on death rows in the United States, complained to the International Court of Justice in 2004. That court found that the United States was bound by the treaty, and Mr. Bush asked the states to apply it.

And:

Early assistance in murder cases also matters, said Noah Feldman, a Harvard law professor: Prosecutors know that seeking the death penalty is a long, difficult, expensive process, and they carefully weigh their chances. Knowing that the accused will be well represented could tip the balance away from seeking death, he said.

With that sort of idea in mind, Mexico in 1999 created an ambitious legal assistance program to aid its citizens in capital cases. The program’s director, Gregory Kuykendall, now heads a team of 32 lawyers; in the year ending in May, Mexico spent $3.5 million on the program, according to the Sunlight Foundation, which focuses on government accountability.

Richard Dieter, executive director of the private Death Penalty Information Center, said Mexico’s active legal support had probably contributed to a decline in death penalty cases in Texas. “I think part of it is just better representation,” he said. “Mexico gives advice to other countries about how to do this.”

The State Department has held hundreds of training sessions across the country to familiarize federal, state and local law-enforcement officials with the Vienna treaty and has issued a 144-page booklet outlining the requirements, with translations in 20 languages, including Creole and Cambodian. Still, compliance is patchy. By Mr. Warren’s calculation, 80 of the 133 foreigners currently on death row in the United States say they did not receive a Vienna notification.

“That’s a failure rate of over 60 percent,” he said, “and it’s in the most serious possible cases. We’re not talking about traffic violations.”

One American who benefited while abroad from the Vienna treaty is Euna Lee, a reporter who, with a colleague, Laura Ling, was arrested in North Korea in 2009 after crossing the border from China.

Wade Goodwyn reports, "Planned Execution Puts Mexico, Texas At Odds," at NPR.  You can listen to his report at the link.

On the night of May 21, 1994, 16-year-old Adria Sauceda attended a party on the south side of San Antonio. Witnesses testified that the teenager ingested so much alcohol, cocaine and marijuana she became extremely intoxicated. A group of eight or nine young men took her into the backyard and took turns sexually assaulting her. Anyone who tried to intervene was told to back off.

Sandra Babcock, Leal's lawyer and a professor at Northwestern University Law School, says when Leal arrived at the party and learned what happened to Sauceda he "became very upset and said that he was going to take her home."

Leal says that on the ride home, Sauceda tried to get out of the car. Leal pulled over, she got out, he tried to get her back in, they argued, he pushed her and she hit her head. But Leal maintains he didn't kidnap her and he didn't rape her. And that's the crux of his defense because without those additional crimes, Leal would not have faced a capital murder charge and a death penalty conviction.

"So although there was evidence that he was with her before she died — and that he may have had some involvement in her death — the evidence that shows that he committed a sexual assault is reed thin, and the evidence that shows that he kidnapped her is even weaker," Babcock says.

Babcock accuses the public defenders assigned to defend Leal of putting on a lazy defense. And that particularly galls the government of Mexico. All parties agree that Leal, a Mexican national in Texas legally, should have been told he had a right to notify his consulate in San Antonio. The Mexican government says had it known, it would have paid for Leal to have top-flight legal representation, investigators and experts to assist his defense.

"Mexico has a long-standing tradition — internationally recognized tradition — about assisting their nationals," says Victor Uribe, head of the legal section at the Mexican Embassy in Washington, D.C. "Of course, due to the opposition of Mexico to the death penalty, capital cases are a priority for Mexico."

And:

"It's not a favor that we do for foreigners who travel in the United States. The United States is a party to this treaty because it protects Americans when we travel abroad," says John Bellinger, a partner at Arnold & Porter in Washington. Bellinger is the former legal adviser at the State Department who handled these cases for the Bush administration.

To the surprise of both conservatives and liberals, President Bush was persuaded by this State Department's argument and ordered states to review their foreign national cases. But Texas Gov. Rick Perry said no, and to the Bush administration's chagrin, the Republican governor challenged his predecessor in federal court — and won.

"Texas has been particularly resistant to complying. I think Texas and the governor have tended to think this is a question of bowing to pressure from Washington or protecting the sovereignty of Texas from international tribunals in The Hague," Bellinger says.

Although Perry, the state attorney general's office and the Texas Board of Pardons and Paroles all declined to speak to NPR, Perry's staff in the past has said, "The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court. It's very important to remember that these individuals are on death row for killing our citizens."

Texas has already executed two Mexican nationals who weren't informed of their rights. Now Leal is on deck to be put to death the first week of July. Having witnessed the powerlessness of the International Court and the president of the United States to stop these executions, Uribe at the Mexican Embassy says they've appealed to the real power in all this: Perry.

"Congressional Action May Come Too Late to Stop Texas Execution," is by Peter Malof for Texas News.Service.

Legislation introduced this week in the U.S. Senate gives hope to some foreigners on death row in U.S. prisons - but it may come too late for Humberto Leal Garcia, a Mexican scheduled for execution next month in Texas.

The Consular Notification Compliance Act would ensure that courts follow an international law that says people arrested on foreign soil are entitled to assistance from their home countries. Leal's lawyers are filing motions today in federal court, hoping to delay his execution so that he may benefit from the legislation if and when it becomes law.

Christopher Durocher, government-affairs counsel at The Constitution Project, supports the measure, adding that consular access is critical if justice is to prevail for foreign nationals.

"When you're brought into a foreign criminal-justice system, your lack of understanding about how that system works - to navigate that system effectively - can really have a negative impact on your ability to defend yourself."

Durocher says he's fearful that if the United States doesn't uphold its treaty obligations, other countries will view consular access for Americans as optional. More than 6,600 U.S. citizens were arrested abroad last year.

Leal is a perfect example of someone whose conviction deserves review, Durocher says, because his lack of consular access clearly impacted his ability to receive a fair trial. His execution, Durocher adds, would not come as welcome news to the 172 other signatories of the Vienna Convention on Consular Relations.

Jordan Smith writes, "Will Legislation Save Humberto Leal?" for the Austin Chronicle.

Vermont Democratic U.S. Sen. Patrick Leahy on June 14 filed a bill that would ensure U.S. compliance with the 1963 Vienna Convention on Consular Relations, which in part guarantees foreign nationals abroad access to consular officials. Advocates representing Texas death row inmate Humberto Leal hope the legislation will save their client's life.

At issue is whether foreign nationals who get in trouble with the law in the U.S. are afforded the opportunity to communicate with home-country officials. Leal is one of the more than four dozen Mexican nationals on death row in the U.S. whose cases were brought to the UN's International Court of Justice in 2004. In that case, Mexico complained that in each instance the accused was not given the opportunity to communicate with Mexican consular officials. The ICJ ultimately ruled in Mexico's favor and said that the cases should be reviewed. Then-President George W. Bush penned a memo asking the U.S. courts to give effect to the ICJ ruling, but the U.S. Supreme Court ultimately ruled that state courts were not required to do so absent an act of Congress. After several years, that legislation was finally filed this week. "Compliance with our consular notification obligations is not a question of partisan interest," Leahy said in a press release. "Given the long history of bipartisan support for the [Vienna Convention], there should be unanimous support for this legislation to uphold our treaty obligations. A failure to act places Americans at risk."

That is, of course, one of the issues here: If the U.S. continues to ignore the consular notification provisions as it pertains to foreign nationals in the States, that makes it more likely that the rights of U.S. citizens abroad will also be ignored. Since the ICJ decision in 2004, Texas has executed three foreign nationals; unless the state acts to halt Leal's execution, he will become the fourth – and the first since Congress has made a move to require compliance with the Convention, and the ICJ ruling.

Earlier coverage of Humberto Leal's case begins at the link.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

Supreme Court Stays Balentine Execution; Taylor Execution, Tonight

The U.S. Supreme Court stayed the scheduled execution of John Balentine.  The order is available in Adobe .pdf format.

"Texas inmate gets reprieve an hour before execution was scheduled," is the title of Michael Graczyk's AP report.  It's via the Fort Worth Star-Telegram.

 Death Row inmate condemned for killing three teenagers in Amarillo in 1998 won a stay of execution from the U.S. Supreme Court on Wednesday, about an hour before he would have been taken to the death chamber.

On Monday, the Supreme Court refused to review John Balentine's case, and the Texas Court of Criminal Appeals rejected another appeal Tuesday.

On Wednesday, Balentine's attorney, Lydia Brandt, went back to the high court to contend that Balentine's legal counsel at his 1999 trial and in early stages of his appeal was deficient.

Last week, the high court agreed to review an Arizona case about whether a convicted offender is entitled to competent legal help in the early stages of an appeal, and Brandt cited that case in arguments to the justices.

Balentine, 42, had eaten a final meal and was speaking with relatives when he was told of the reprieve. Two years ago, Balentine got within a day of execution before an appeals court halted the punishment.

"High court delays Texas execution," by Corrie MacLaggan for Reuters.

The Supreme Court on Wednesday issued a stay of execution for a man who was scheduled to be put to death in the evening for fatally shooting three sleeping teenagers in Amarillo in 1998.

John Balentine, 42, was to be executed by lethal injection in what would have been the fifth execution in Texas this year and the 21st in the country.

He had raised an issue about whether he has a right to be represented by a lawyer in a post-conviction state hearing challenging the effectiveness of his lawyers at trial.

And:

Balentine's execution was the first of two that had been scheduled in Texas this week. On Thursday, the state is set to execute Lee Taylor for fatally stabbing an inmate at a state prison in 1999. At the time of the stabbing, Taylor was serving a life sentence for aggravated robbery in which an elderly man died, according to the attorney general's office.

Texas has executed more than four times as many people as any other state since the death penalty was reinstated in the United States in 1976, according to the Death Penalty Information Center.

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

According to TDCJ, eight additional executions are scheduled in Texas during 2011, including one more this month.  More execution dates are likely to be set in Texas this year.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

Thursday

I was due to be on my way to Minneapolis by now, but my flight has been delayed. 

The next two posts will contain today's top stories, then I'll sign off for a few hours of travel.

Netroots Nation 2011

On Thursday, I'll be traveling to Netroots Nation, being held this year in Minneapolis.

Posting Thursday morning will likely be sporadic, depending on WiFi availability.

As in years past, I'll live-blog and tweet during the conference.

A Conversation With Shawn Hawkins

Today's Columbus Dispatch carries, "Spared, inmate thinks of his mom."  It's by Alan Johnson.

At 10 a.m. yesterday, the exact hour that a lethal dose of pentobarbital was supposed to be flowing into his veins at the Southern Ohio Correctional Facility, Shawn Hawkins was sitting in a room 90 miles away.

Very much alive, Hawkins looked out a window at the Warren Correctional Institution. He saw bright sunshine, a patch of green grass and a parking lot outside a fence topped with curled razor wire.

"I feel blessed," Hawkins said in an interview with The Dispatch. "Knowing that my family doesn't have to endure the loss of me means everything, especially since my mom already lost two of her kids. I would have been the third."

And:

Hawkins, 42, was scheduled to be executed yesterday for a 1989 double slaying in Cincinnati. But Gov. John Kasich stepped in, using his clemency power last week to commute the death sentence to life without parole. Basing his decision largely on a 7-0 recommendation from the Ohio Parole Board, Kasich said the facts are "frustratingly unclear" in the case.

Both Kasich and the parole board said that although there is serious doubt that Hawkins was the killer, it likewise isn't clear that he wasn't.

On Monday, Hawkins was moved from his single cell on Death Row at the Ohio State Penitentiary in Youngstown to a four-man cell at the prison in Lebanon. It was his first night sharing a cell in nearly 22 years.

In the interview with The Dispatch, Hawkins said he is grateful to Kasich for commuting his death sentence, but he remains hopeful that he will someday be freed through continuing legal appeals.

"Life without parole is a harsh reality," he said. "For me, there's still a lot of life to live. There's a lot to be accomplished ... I don't want to believe it's my fate that I will remain behind prison walls for the rest of my life."

Hawkins has consistently said he did not kill Terrance Richard, 18, and Diamond Marteen, 19. However, a modest amount of evidence and circumstances convinced prosecutors and a jury otherwise; after contacting Hawkins twice about a drug deal, both men were found shot to death in a car in Mount Healthy, a suburb of Cincinnati, on June 12, 1989.

Kasich's commutation - his first in five death-penalty cases since becoming governor - did not overturn Hawkins' conviction; it only wiped out his death sentence.

Cincinnati attorney Anthony G. Covatta has filed an appeal in the Hamilton County Court of Appeals seeking a new trial for Hawkins.

Earlier coverage of the Hawkins commutation begins at the link.  Related posts are in the clemency index.

 

An Update on HB 215 - Eyewitness ID Reform

HB 215, which was passed by the 82nd Regular Session of the Texas Legislature, is on the governor's desk awaiting final action.

Jordan Smith writes, "False Memories: The Perils of Eyewitness IDs," for the Crime Report.  This lengthy must-read starts with the recent exoneration of Johnny Pinchback in Dallas County:

Pinchback is the 44th Texas inmate to be exonerated based on DNA evidence, and among the vast majority of Texas exonerees who were originally sent to prison based on a faulty eyewitness identification.

"In Texas, flawed identifications are a very serious problem; 86% of the state's...DNA exonerations involved a mistaken eyewitness identification," says Houston Democratic state Sen. Rodney Ellis, a veteran lawmaker with a passion for criminal justice issues who sits on the board of the New York-based Innocence Project.

"While the wrong man was incarcerated, the real perpetrator [is] on the street, free to commit more crimes and harm more victims."

Many lawyers and criminal justice advocates agree that faulty eyewitness IDs are a big problem in Texas.  Yet, as the number of exonerated inmates continues to grow (Pinchback is the second man exonerated this year),  there has been little consensus on how to address the issue.

Texas lawmakers last month passed a measure that Ellis and his allies say will go a long way to reducing the number of mistaken IDs, by requiring police departments across the state to adopt policies that govern live and photo lineups based on best practices gleaned from years of research into human memory.

"I truly believe this bill will increase public safety, reduce wrongful convictions and ultimately reduce the amount of money the state spends to compensate the wrongfully convicted," Ellis wrote in an email to TCR.

But not everyone agrees.

Defense attorney Jeff Blackburn, founder and general counsel for the Innocence Project of Texas, believes the measure (Texas House Bill 215) "standing alone, will accomplish approximately nothing."

In fact, disagreement among advocates about the right way to approach the problem of mistaken IDs― by requiring police departments to adopt procedures, but without including any sanctions for noncompliance―leaves many criminal justice reformers wondering whether the new Texas law will actually do anything to curb the problem.

The problem is not confined to Texas.  Nationally, at least 75% of more than 250 wrongful convictions involves "at least one mistaken eyewitness identification," says Steve Saloom, policy director of the Innocence Project in New York, which fights similar cases across the country. "(We) want to see improved eyewitness ID procedures at all times, everywhere."

Part of the problem of mistaken identifications lies in the fact that many police agencies do not have standardized best-practice policies regarding  the conduct of live and photo lineups that are based on best practices.  There is no reason why such policies can’t be applied, notes Saloom, considering there have been more than three decades of research on the "fallibility of human memory."

Earlier coverage of eyewitness id reform in Texas begins at the link

In This Case, Justice Was Served

 

That's the title of an editorial column in today's Galveston Daily News.  It's written by Heber Taylor.

Thank you, Jack Roady, for the right call.

Gaylon George Walbey Jr. committed a horrible, senseless crime in murdering Marionette Beyah, who had once been his foster mother, in 1993.

But the Galveston County District Attorney’s Office has better things to do than to seek the death penalty against someone with a history of mental illness. After 16 years on death row, Walbey, now 36, will serve a life sentence in prison.

The former district attorney, Kurt Sistrunk, had announced in 2009 that the district attorney’s office would seek the death penalty after a federal appellate court reversed Walbey’s death sentence. The county’s options were to impose a sentence other than execution or to have another sentencing hearing.

Roady, who defeated Sistrunk last year, made the right call in deciding to end this case, which has gone on long enough.

Walbey was convicted in 1994. There was no doubt about his guilt. There was no doubt about the heinousness of the crime. But there was plenty of doubt about Walbey’s mental health.

The court documents are depressing. The highlights, according to documents filed by Walbey’s attorneys, include accounts of how Walbey was made to drink beer and smoke marijuana by age 3. As a child, he was forced to eat garbage while living in abandoned houses. He spent some time in an orphanage. He took to petty theft to support himself.

And:

A Child Protective Services worker notes that his criminal behavior was ‘usually centered around his need to survive on the streets during his episodes of running away.’”

One of the reasons to have capital punishment is to deter other people in similar circumstances from committing such crimes.

But if you’re trying to send a message to other people who were raised in similar circumstances and who suffer from similar disorders, you have to wonder whether they could comprehend it.

What message could a just society hope to send by executing someone like that?

Related posts are in the mental illness index.

More Politics

Today's Austin American-Statesman reports, "Former Judge Charlie Baird weighs DA run."  It's by Steven Kreytak.

Former Judge Charlie Baird is eyeing the Travis County district attorney's post.

In an interview Tuesday, the former District Court and Court of Criminal Appeals judge said he is seriously considering challenging District Attorney Rosemary Lehmberg in March's Democratic primary.

Baird, 56, sounded very much like a candidate in laying out some changes he would make if elected, such as requiring every employee of the office to live in Travis County and abolishing the long-standing death penalty review committee that evaluates capital murder cases.

He noted that Lehmberg, who has been district attorney for 2½ years, has worked in the office since 1976.

He said if he runs, the question for voters would be: "Do you want to continue with the status quo, or do you think there are ways that the criminal justice system could be improved?"

Lehmberg, 62, said she is proud of her experience working in almost every part of the district attorney's office. She also pointed to programs she has begun during her current term.

Those innovations include hiring a full-time environmental prosecutor, working with Austin police to target the small percentage of offenders who commit a high percentage of local crime and creating a deferred prosecution program. That program allows select first-time nonviolent felony offenders who stay out of trouble for a period of time to escape the criminal justice system without a criminal record.

"I've worked aggressively to open doors rather than jail cells for nonviolent, first-time offenders," she said.

Baird, who is now a defense lawyer, spent eight years on the Texas Court of Criminal Appeals during the 1990s and in 2006 won election as head of the 299th District Court in Travis County.

On the local bench, he stood out from his fellow judges in part for his propensity to give personal recognizance bonds to defendants charged with the most serious crimes.

That type of bond requires defendants to pay a small fee to get out of jail before trial. Police and some crime victims said Baird endangered public safety, but Baird argued that the law entitles defendants to reasonable bail and prohibits judges from using high bail amounts to punish defendants before they are convicted.

He also was not afraid to give probation to defendants charged with violent offenses, explaining that he believes in giving multiple chances to defendants who impress upon him that they want to make something of their lives.

Baird worked closely with those he put on probation. He was the only local judge, for example, who had parenting classes and job programs in his courtroom.

And:

Like Lehmberg, Baird said his first priority would be ensuring the public's safety. He also prioritized preventing people from being wrongfully prosecuted or incarcerated.

Baird proposed putting a prosecutor on duty at the courthouse at all times to make sure Austin police have gathered enough evidence for felony arrests.

Lehmberg started a similar program last year but said she discontinued it this year because there were not enough cases coming in overnight to make it effective. She said those cases are now reviewed in the morning.

Baird said that while he is "personally opposed" to the death penalty, he would seek it against some defendants because he believes Travis County residents support its use.

He said he would research capital murder cases that are eligible for the death penalty himself and make the decision on whether to seek death without the benefit of a review committee.

Under Lehmberg and Earle, every capital murder case has been reviewed by a panel of top deputies who made a recommendation on whether to seek death, a decision ultimately made by the district attorney.

Related posts are in the prosecution and politics indexes.