The StandDown Texas Project

The Georgia Mental Retardation Standard

Today's New York Times carries the editorial, "An Intolerable Burden of Proof."

The Supreme Court ruled in 2002 that it is unconstitutional to execute mentally retarded criminals, finding that the death penalty cannot be justified for these offenders because they are morally less culpable.

The court left it to the states to determine how to apply that constitutional restriction. Georgia has chosen to undermine the court’s principled ruling. It is the only state to require that offenders prove they are mentally retarded beyond a reasonable doubt, a procedural threshold that is extremely difficult to reach. In a 7-to-4 ruling last week, the United States Court of Appeals for the 11th Circuit unwisely upheld this Georgia standard. The Supreme Court should review that decision and strike down this intolerable burden of proof.

The Supreme Court’s 2002 ruling applies to people whose intellectual functioning is subaverage (mainly with an I.Q. of 70 or below), who are limited in communicating, caring for themselves and other adaptive skills and who show these traits before they are 18. In the Georgia case of Warren Lee Hill Jr., Mr. Hill’s I.Q. of 77 was found to meet the threshold, but he was unable to prove beyond a reasonable doubt that his adaptive skills were impaired.

Judgments about mental impairment are necessarily based on subjective interpretations of behavior. The Supreme Court has noted how hard it is to prove this kind of mental condition beyond a reasonable doubt. Proof turns on expert testimony, and an effective opposing expert can raise doubt. That is why, of the 33 other states with the death penalty, 28 use a lower standard of proof for mental retardation.

The 11th Circuit Court of Appeals ruling in Hill v. Humphrey was issued on November 22.  It's available in Adobe .pdf format.

The AP reported, "11th Circuit upholds strict Ga. execution standard," written by Greg Bluestein.  Here's an extended excerpt:

Death penalty defendants in Georgia will have to prove they are mentally disabled beyond a reasonable doubt to avoid execution, the most stringent legal standard in the nation, a federal appeals court ruled Tuesday.

The 11th U.S. Circuit Court of Appeals decision said it couldn't strike down the Georgia law "even if we believe it incorrect or unwise" because the Supreme Court empowered each state to create its own definition for the mentally disabled. Most death penalty states have a lower threshold for defendants to prove they are mentally disabled, while six states don't set any.

The ruling comes as a disappointment for defense attorneys, who plan to appeal, and over the objections of four circuit judges. One of them, U.S. Circuit Judge Rosemary Barkett, wrote in a dissent that the law "eviscerates" the constitutional rights of mentally disabled offenders.

The case was brought by Warren Lee Hill Jr., who was sentenced to death for the 1991 murder of a fellow inmate. Hill's IQ tests indicated that he may meet the medical definition of mild mental retardation, but a county judge found he didn't meet the other criteria required in Georgia to meet the standard.

His case eventually landed before the Georgia Supreme Court, which narrowly voted to uphold the law. The standard was struck down by a divided 11th Circuit panel last year, but the full court pulled an about-face on Tuesday after hearing oral arguments in February.

The decision, written by Judge Frank Hull, said when the U.S. Supreme Court outlawed the execution of mentally disabled offenders in 2002, the justices were careful not to set rigid guidelines for who meets that definition. Instead, the court empowered each state to develop "appropriate" standards for determining who was actually mentally disabled.

Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law. And so far, she noted, the high court hasn't weighed in.

"We do not decide whether Georgia's burden of proof is constitutionally permissible, but only that no decision of the United States Supreme Court clearly establishes that it is unconstitutional," Hull wrote.

Hill's defense attorney, Brian Kammer, said he would "absolutely" appeal the decision to the Supreme Court.

The opinion was met with a flurry of dissents. Circuit Judge Beverly Martin said the state law runs counter to the "Supreme Court's longstanding recognition that death is different." And Circuit Judge Charles Wilson argued the majority asked the wrong question and reached the wrong answer.

Tennessee attorney Lee Davis writes, "Georgia's Requirement of Proof of Mental Retardation Beyond A Reasonable Doubt Constitutional," for the Chattanoogan.

On Nov. 22, the Eleventh Circuit held that Georgia’s requirement that criminal defendants prove their mental retardation beyond a reasonable doubt constitutional in Hill v. Humphrey.

Georgia was the first state to enact a prohibition against the execution of the mentally retarded. Years later, and after a national consensus adopting this policy was formed, the United States Supreme Court held in Atkins v. Virginia that imposing the death penalty on the mentally retarded is unconstitutional in violation of the 8th amendment.

In Hill, the sole question before the en banc Court was “whether the Georgia Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt standard does not violate the Eighth Amendment— is contrary to clearly established federal law, as announced in Atkins.” As noted above, the Eleventh Circuit held that it was not.

Atkins appears to be straightforward—the government can’t execute the mentally retarded. However, the Supreme Court did not provide guidelines for how to determine who is mentally retarded nor did it address how to allocate the burden of proving mental retardation. The Eleventh Circuit in Hill relied primarily on the fact that the Supreme Court left these decisions to the states.

Earlier coverage of mental retardation issues in Georgia begins at the link.

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

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

Did Nebraska Once Again Obtain Sodium Thiopental Illegally?

The latest AP filing is, "Company wants Neb. to return lethal injection drug."  It's via CBS News.

A Swiss pharmaceutical company is asking Nebraska officials to return a drug the state plans to use to execute death row inmates.

Earlier this month, the Nebraska Department of Correctional Services announced that it had obtained a new supply of sodium thiopental, one of three drugs needed to carry out executions by lethal injection, from Swiss company Naari AG. The drug is no longer manufactured in the United States and is in scarce supply worldwide.

But as first reported Tuesday by The Lincoln Journal Star, Naari CEO Prithi Kochhar said in a letter sent on Nov. 18 to Nebraska Supreme Court Chief Justice Michael Heavican and Nebraska Attorney General Jon Bruning that his company did not supply the drug to the state and would never support its use for lethal reasons.

"I am shocked and appalled by this news," Kochhar wrote. "I am writing to request that the thiopental which was wrongfully diverted ... to the Nebraska Department of Correctional Services be returned immediately to its rightful owners, that is, that it be returned to us at Naari."

The company gave free samples of the drug, produced at its Indian manufacturing facilities, to a man in India who said he wanted to use it and eventually sell it as an anesthetic in Zambia, Kochhar's letter said. Instead, the middleman sold the samples for $5,411 to Nebraska officials.

It is the second time Nebraska has gone to India for the drug and stirred contention by doing so.

In January, the state Department of Correctional Services announced it had obtained 500 grams of sodium thiopental from an Indian company, clearing the way for Nebraska's first execution by lethal injection. But questions soon arose about the legality of the purchase by Nebraska and other states, and the U.S. Drug Enforcement Agency seized stockpiles of the drug from several states, including Georgia, Alabama, Kentucky, South Carolina and Tennessee.

The Lincoln Journal Star article that broke the news, "Maker of lethal injection drug wants it back," is by Cory Matteson.

When the Nebraska Department of Corrections announced Nov. 3 that it recently had purchased two batches of sodium thiopental made by a pharmaceutical company headquartered in Switzerland, Director Robert Houston said his department was ready once more to proceed with its statutory obligation to carry out capital punishment.

But 15 days later, the CEO of the pharmaceutical company Naari wrote a letter stating the company wants its drug returned.

"Naari did not supply these medicines directly to the Nebraska Department of Correctional Services and is deeply opposed to the use of the medications in executions," CEO Prithi Kochhar wrote in a letter addressed to Nebraska Supreme Court Chief Justice Michael Heavican and also sent to Nebraska Attorney General Jon Bruning.

Houston and state Attorney General's Office Spokeswoman Shannon Kingery said in statements to the Journal Star on Monday that the 485 grams of sodium thiopental purchased for $5,411 and received Oct. 25 were legally obtained.

According to Kochhar's letter and an article published recently in an Indian weekly news magazine, a Calcutta, India-based middleman, Chris Harris, agreed to provide the 485 grams of sodium thiopental to drug officials in Zambia, where it would be used as an anaesthetic. Believing Harris would purchase a larger order of sodium thiopental, Naari gave him the vials of the drug toward the end of September, according to the article published in the December edition of Outlook.

Rather than provide it to Zambian officials, Harris sold the drugs to Nebraska officials for $5,411, according to the letter.

"He was not authorised (sic) to sell the product to the Nebraska Department of Corrections or to anyone else in the USA," Kochhar wrote in the letter.

A spokesman for Naari told Outlook, "We're not in the business of helping to execute people. We were lied to and cheated."

And:

...Jerry Soucie, an attorney with the Nebraska Commission on Public Advocacy, referred to Harris' role in procuring the earlier shipment of the drug that the DEA said was illegally imported in a May 2011 filing on behalf of death row inmate Carey Dean Moore.

Moore, convicted of killing two men, was scheduled to be executed June 14, but the state Supreme Court issued a stay of execution while Soucie challenged the purchase of the drugs in Douglas County District Court.

When the news about the acquisition of the Naari-manufactured sodium thiopental was released earlier this month, Bruning asked the Nebraska Supreme Court to set an execution date for convicted murderer Michael Ryan.

Soucie has until Wednesday to file documents regarding the execution of Ryan, who was convicted of killing James Thimm during a ritualistic torture at a farm near Rulo in 1985.

Today's Omaha World-Herald reports, "Prison to keep execution drug."  It's by Joe Duggan.

Nebraska prison officials intend to keep a new supply of a lethal injection drug, over the objections of a pharmaceutical executive who says the drug was improperly obtained and sold to the state.

The chief executive officer of Naari, the Swiss company that produced the sodium thiopental — which is now waiting to be used in Nebraska's execution chamber — has asked the state to return the drug, saying it was obtained under false pretenses by a third-party broker. CEO Prithi Kochhar made the request in a Nov. 18 letter to Nebraska Supreme Court Chief Justice Michael Heavican.

And:

A spokeswoman for Nebraska Attorney General Jon Bruning said Tuesday that corrections officials complied with all regulations set by U.S. Customs and Border Protection and the Drug Enforcement Administration.

"The sodium thiopental received by NDCS was approved for legal export by the government of India and approved for legal import by the regulatory federal agencies of the United States," said spokeswoman Shannon Kingery. "It has been tested and positively identified as sodium thiopental."

A Nov. 3 press release about the drug purchase issued by the Department of Correctional Services mentioned the Swiss company by name.

Department officials never said they purchased the drug directly from the company, Smith said. The press release said only that the drug was manufactured by Naari.

Smith acknowledged Tuesday that the department bought the drug from Harris, a broker based in Calcutta.

The department sent an email to Harris on Tuesday seeking clarification about his arrangement with the company, Smith said. But Harris had not responded by the end of the business day.

The drug is no longer made in the United States and is becoming increasingly scarce abroad because of the controversy surrounding its use in lethal injections. Nebraska joined the market for the drug when it switched its execution method from electrocution to lethal injection in 2009.

Harris is the same broker that the Correctional Services Department used to obtain a previous supply of sodium thiopental, which became embroiled in a legal dispute over how it was imported from India.

"Swiss firm: Don't use our drugs for US executions," by Meritxell Mir for Switzerland's edition of the Local.

Basel-based pharmaceuticals company Naari has issued an impassioned plea to the US state of Nebraska to return drugs that could be used to kill prisoners on death row.

"Naari did not supply these medicines directly to the Nebraska Department of Correctional Services and is deeply opposed to the use of the medications in executions," CEO Prithi Kochhar wrote in a letter addressed to Nebraska Supreme Court Chief Justice Michael Heavican. He also sent the letter to Nebraska Attorney General Jon Bruning, the Journal Star newspaper reported.

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

The Ken Anderson Deposition

"Anderson and Morton lawyers spar over DA's role in wrongful prosecution," is the title of Chuck Lindell's report in today's Austin American-Statesman.  Here's an extended excerpt:

Under eight hours of occasionally tense questioning, former prosecutor Ken Anderson testified that while his memory was foggy on details, he believed Michael Morton's trial lawyers were provided all necessary information about evidence pointing to his innocence.

According to draft transcripts of his deposition provided to the American-Statesman, Anderson repeatedly sparred with defense lawyer Barry Scheck over his handling of the Morton case and a prosecutor's duty to disclose evidence favorable to a defendant.

Many of Scheck's questions focused on a taped police interview — which surfaced only recently — indicating that Morton's 3-year-old son witnessed his mother's 1986 murder and said his father was not home at the time.

Morton was recently freed after serving almost 25 years in prison for the murder of his wife, Christine, after new DNA evidence pointed to another man for the crime.

Scheck alleged that Morton would not have needed modern DNA tests to prove his innocence if Anderson had followed the law about disclosing the police interview and other information, including a police report about a man acting suspiciously in the Morton neighborhood, before the 1987 trial.

Anderson, now a district judge in Georgetown, took strong exception to the allegation.

"You know, Mr. Scheck, you make these statements and these accusations, and you are acting like I have done something wrong," Anderson said. "I am upset about an innocent man being convicted. I don't have the language to express my feelings about this."

"Now," Scheck interjected, "could part of your bad feelings about what happened in this case arise from the fact that you now realize that you did not turn over to Judge (William) Lott or the defense a whole series of reports that were exculpatory and might have led to Michael Morton's acquittal?"

"I can't imagine I did that," Anderson said.

Morton's lawyers with the Innocence Project in New York expect to file a final version of the two-day deposition, conducted under oath and on videotape, with a District Court in Georgetown today or Thursday. A lawyer for Anderson provided a draft version of the testimony to the American-Statesman on Tuesday.

As soon as transcripts are released and available, I'll post a link.

Earlier coverage of Michael Morton's exoneration, and its aftermath, begins at the link. 

Related posts are in the prosecutorial misconduct index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

 

Scott Turow's Innocent - Tonight

A reminder that Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," premiere Tuesday, November 29, on the cable channel.

An earlier post has details.  There will also be showings on December 2 and 3.

Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

North Carolina Senate Votes to Repeal RJA; Measure to Governor

"North Carolina Senate votes to repeal death row law," is the AP report filed by Tom Breen.  It's via the Virginian Pilot.

The Republican-controlled state Senate voted Monday night to repeal a landmark 2009 state law that allows death row inmates to appeal their sentences by using statistical evidence to try and prove the taint of racial bias.

Since the House had earlier passed the legislation, the Senate vote sends the measure to the desk of Gov. Beverly Perdue, who signed the Racial Justice Act into law two years ago. A Perdue spokesman said she'll review the bill before making a decision on it. Under the current law, a death row inmate who successfully appeals the sentence would not be freed, but would spend life in prison without parole.

Prosecutors, joined by Republicans in the General Assembly, have been vocal critics of the law, saying it amounts to an unofficial moratorium on the death penalty that will clog up the state's courts with frivolous appeals by scores of death row inmates whose guilt is not in doubt.

And:

Supporters of the current law, though, argued that racial bias is not a distant feature of the past, but a factor that still plays a role in capital punishment cases, and that the Racial Justice Act is a necessary tool to ensure fairness in how the death penalty is administered.

"If you think race didn't play a factor in my case, in my being arrested, charged, and convicted, then you're not living here in North Carolina," said Darryl Hunt, who was exonerated in 2004 after serving 18 years in prison for the 1984 murder of Deborah Sykes. Hunt was cleared by DNA evidence, and another man subsequently pleaded guilty to the murder.

"Senate derails Racial Justice Act," by Craig Jarvis in the News & Observer.

The state Senate on Monday rewrote the Racial Justice Act, a two-year-old law that allowed death-row inmates to use statistical evidence of racial bias to challenge their sentences.

On a 27-17 vote, senators approved Senate Bill 9, titled No Discriminatory Purpose in the Death Penalty. It now goes to Gov. Bev Perdue. There was no immediate word on whether the governor would sign the bill.

Perdue did sign the Racial Justice Act into law in 2009, saying it would ensure death sentences were imposed "based on the facts and the law, not racial prejudice."

Republican lawmakers and the state's prosecutors tried to minimize the impact of the new law, insisting it was only a fix. "This is not a repeal of the Racial Justice Act," Sen. Thom Goolsby, a Republican from Wilmington, said on the Senate floor. "It's a reform, a modification."

But earlier in the day, in response to a question from Sen. Josh Stein, a Raleigh Democrat, the Senate staff acknowledged that passing the bill, SB9, returned the law to what it was before the Racial Justice Act went into effect.

"This is an utter and total repeal," Stein said.

And:

Sen. Floyd McKissick, a Durham Democrat who was the primary author of the Racial Justice Act, made his own impassioned speech to defeat the new bill. He asked fellow senators what they would do if they were accused of a crime and each time a prospective juror who was the same race was stricken from the jury. "We've come a very long way over the last 50 years," McKissick said. "We've made a lot of progress as a society and as a country. We can all share in that pride. But there's still remnants that exist, remnants of institutional racism, remnants of hatred in the hearts and minds of people."

"NC lawmakers vote to repeal death row law," by Laura Leslie for WRAL-TV.

The Republican-controlled state Senate voted Monday night to repeal a landmark 2009 state law that allows death row inmates to appeal their sentences by using statistical evidence to try and prove the taint of racial bias.

Since the House had earlier passed the legislation, the Senate vote sends the measure to the desk of Gov. Beverly Perdue, who signed the Racial Justice Act into law two years ago. A Perdue spokesman said she'll review the bill before making a decision on it.

"Bias on death row? North Carolina lawmakers now not so sure," is Richard Fausset's post at the Los Angeles Times.

The North Carolina Senate on Monday approved a bill that critics view as a gutting of the Racial Justice Act, the state law that gives death row inmates and death penalty defendants the ability to use statistics on racial bias as a way to challenge their prosecutions.

The original law was passed in 2009 by a Democratic-controlled Legislature and signed into law by Democratic Gov. Bev Perdue. But last November, Republicans won majorities in both houses, and many of them sided with state prosecutors who have argued that the law would overburden the justice system with new litigation and create a "backdoor deal" to end the death penalty in North Carolina.

The House approved the new bill in June. Now the issue presents a conundrum for Perdue, a death-penalty-supporting Democrat who has effectively navigated tricky political cross-currents in a state that voted for Barack Obama in 2008, only to give the GOP control of the Legislature for the first time in more than a century in 2010.

There's been no word from the governor's office on her next move.

Critics of the original law have questioned whether statistical analyses of death-penalty cases around the state should have any bearing on individual cases under review. Angie West, who lost a loved one to an inmate currently on death row, said at a news conference that it would be wrong to let the inmate off "simply because there's a statistic in another part of the state that says he should get a lighter sentence."

But supporters of the original law say the statistics paint a chilling picture of ongoing systemic bias against minorities. An oft-cited Michigan State University study found that a defendant in North Carolina was 2.6 times more likely to be sentenced to death in cases in which at least one victim was white.

"North Carolina’s Historic Fix to Death Penalty Racism Faces GOP Ax," by Jamilah King for Color Lines.

North Carolina’s Racial Justice Act is in trouble. The law has barely been on the books for two years, but in that short amount of time it’s caused a mountain of controversy. 

The landmark piece of legislation, signed into law in 2009, allows death row inmates to appeal their sentence on the basis that racial bias played a role in their sentencing, and it allows inmates to bring statistics before judges to help make their case. If they can prove that it did, they win an opportunity to have their sentences commuted to life in prison. All but three of the state’s death row inmates have appealed their sentences.

And:

It’s an historic law with far-reaching implications (Kentucky is the only other state in the country that currently has a racial justice law). For a criminal justice system that’s rife with well-documented racial disparities, in some advocates’ eyes the law is an important legal step toward acknowledging that society’s rules don’t apply equally to everyone.

Editorial writer Doug Clark posts, "Improved RJA," at his Off the Record blog at the Greensboro News-Record.

The ratified bill prohibits a death sentence when "the State acted with discriminatory purpose in seeking the death penalty or in selecting the jury that sentenced the defendant, or one or more of the jurors acted with discriminatory purpose in the guilt‑innocence or sentencing phases of the defendant's trial."

Gone is the phony standard of statistical evidence not related to the case in question.

And:

The governor should sign the revised version into law.

If she thinks anyone on death row should be relieved of the death penalty, she has the power to commute his sentence to life in prison.

Earlier coverage of the North Carolina Racial Justice Act begins at the link.

Grievances Filed Against Prosecutors in Morton Case

"Grievances filed in Morton case," is Chuck Lindell's Austin American-Statesman report.

The Texas Coalition on Lawyer Accountability, a relatively new organization that focuses on attorney responsibility, said today it will file grievances against three former or current Williamson County prosecutors involved in the Michael Morton case.

The grievances ask the State Bar of Texas to discipline Morton’s trial prosecutors - Ken Anderson, now a district judge in Georgetown, and Mike Davis, now a Round Rock lawyer — and current District Attorney John Bradley.

The organization said news reports indicate that Anderson and Davis violated their duty as prosecutors by failing to provide Morton’s trial lawyers with evidence that pointed to his innocence. The group also said Bradley wrongly fought DNA tests requested by Morton’s lawyers in 2005, prolonging Morton’s prison stay by six years. Morton was freed in October after the forensic tests pointed to another man as the killer of his wife, Christine, in their Williamson County home.

The state bar, which oversees lawyer discipline, has already announced an investigation into actions taken by Anderson and Davis in the Morton trial.

The link in Lindell's report takes you to the individual greivance fililings.

Brandi Grissom posts, "Lawyer Group Files Grievances in Morton Case," at Texas Tribune.

Morton was released last month after spending nearly 25 years in prison, wrongfully convicted of murdering his wife in 1986. Morton's lawyers have discovered that prosecutors did not turn over to defense attorneys or the trial judge evidence that pointed to another man as the murderer and could have prevented the wrongful conviction.

The State Bar would not confirm receipt of the grievances, but the agency said last month that it had launched its own investigation of prosecutorial misconduct in the case. Morton's lawyers are also pursuing their own investigation of alleged wrongdoing.

Julie Oliver, executive director of the lawyer's coalition, said the group's grievances today were meant to reiterate the public's interest in seeing that those who were responsible for Morton's wrongful imprisonment are held accountable. 

"We feel it's important that a lot of pressure be put on them from different parts of the public to ensure they understand the importance of the investigation," Oliver said.

Austin's YNN, the Time-Warner Cable local news outlet, carries, "Anderson deposition delayed; TCLA files grievances against Morton prosecutors."

The transcript from former Williamson County District Attorney Ken Anderson's deposition has been delayed again. It will now be released either Tuesday or Wednesday, instead of Monday as originally scheduled.

In the document, Anderson answers questions about the Michael Morton case. Anderson, now a district judge in Williamson County, was the lead prosecutor in the 1987 trial that wrongly convicted Morton of his wife's murder, and sent him to prison for 24 years.

Morton's attorneys maintain Anderson and others hid evidence from the defense at trial that would have poked holes in their prosecution.

Nearly two weeks ago, Anderson apologized for Morton’s wrongful conviction. He said the criminal justice system failed, but said he acted within the law during the trial.

"Texas Coalition on Lawyer Accountability (TCLA) Files Grievances Against The Michael Morton Case Prosecutors," is the TCLA news release.  The full text is below:

The Texas Coalition on Lawyer Accountability (TCLA) announced that its Executive Director, Julie Oliver, is today filing disciplinary grievances against prosecutors in the Michael Morton case: current Williamson County District Attorney John Bradley; former Williamson County District Attorney (and current District Judge) Ken Anderson; former Williamson County Assistant District Attorney Mike Davis.

Published reports indicate that those lawyers may have violated several of the ethics rules that govern Texas lawyers.  The apparent violations had tragic, horrific consequences—including the wrongful imprisonment of Michael Morton for 25 years, and the undermining of public confidence and trust in the criminal justice system in Williamson County.

Collectively, Anderson, Bradley, and Davis appear to have violated one or more of the following ethical standards governing the conduct of Texas lawyers (the Texas Disciplinary Rules of Professional Conduct).

In 1987, a jury convicted Michael Morton of murdering his wife, Christine.  Morton was sentenced to life in prison.  After serving almost 25 years in prison for a murder that he did not commit, Mr. Morton was released in October 2011 after DNA testing exonerated him.  Published reports suggest that the Morton prosecution team withheld key evidence from the defense during the murder trial, misrepresented the testimony of certain key witnesses during closing arguments, and failed to comply with a court order.

All of these actions likely caused Mr. Morton’s wrongful conviction—and kept the true murderer on the street.

“What is clear is that the prosecution in the Morton case dramatically failed to meet the burden imposed by court rules, statutes, and the Constitution, to disclose evidence tending to negate guilt,” said Julie Oliver, Executive Director, Texas Coalition on Lawyer Accountability.  “In Texas, for far too long disciplinary enforcement against prosecutors who engage in unethical conduct has been lax or non-existent.”

Article 2.01 of the Texas Code of Criminal Procedure best states the critical message of this case: “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.”  This disciplinary case, if investigated thoroughly and prosecuted vigorously, can help make that critically important ethical rule a functional reality in our criminal justice system.  Justice in Texas requires no less.

 “We are filing these grievances today so that public scrutiny of the investigation will be assured, vigorous, and ongoing,” said Julie Oliver.  “Effective lawyer discipline requires such public vigilance and involvement.”

The Texas Coalition on Lawyer Accountability (TCLA) is a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas legal profession accountable to its statutory, constitutional, and ethical obligations.  Coalition members include the Mexican American Legal Defense and Education Fund (MALDEF), Public Citizen, the Environmental Defense Fund (EDF), the Southwest Voter Registration Education Project (SVREP), the Texas Civil Rights Project (TCRP), Texas Watch Foundation, and the Texas Housing Justice League (THJL).

Earlier coverage of Michael Morton's exoneration begins at the link.  Related posts are in the prosecutorial misconduct index.

Texas Life Row

"Nearly 400 capital murder convicts get life without parole," is the title of Lise Olsen's report in today's Houston Chronicle.  Here's an extended excerpt:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

For the first time, it gave jurors and prosecutors a non-death sentence that guaranteed someone convicted of killing a child, killing multiple victims, slaying a police officer or committing another capital crime could not be released on parole.

In all, 110 Harris County offenders have been sentenced to life without parole since the law took effect, compared with 11 death sentences.

"Harris County is a tough law and order county on the really bad actors. That hasn't changed," said First Assistant District Attorney James Leitner.

The change has led to fewer death sentences in Texas and nationwide.

Fifty-one people were sentenced to life without parole in Dallas County. Tarrant County had 26; Bexar County had 22.

Texas offenders convicted of capital murder were six times more often sentenced to life without parole than to death: 66 people got death sentences compared with the 398 lifers. The life without parole law has been used in about one third of all Texas counties at least once, the Chronicle's analysis of state prison records shows.

To date, 116 of Texas' 477 executions have originated from Harris County; 24%.  In the 2010 Census, Harris County accounted for 16% of the state's population.

Related posts are in the sentencing index.

Shame Should Fuel DNA Testing in Skinner Case

That's the title of O. Ricardo Pimentel's column from last Wednesday's San Antonio Express-News dealing with the Hank Skinner case.

Texas passed a law this year intended to remove the procedural barriers blocking death row inmates from testing DNA evidence that might prove their innocence.

If embarrassment wasn't a motivator in its passage, it should have been. Texas leads the nation in the number of wrongfully convicted folks freed because of DNA evidence.

How about we now give shame a chance?

And:

I have no doubt that some guilty-as-hell inmates simply want to stall, to breathe longer. But, for the cost of testing and housing an inmate for a bit longer, the state can remove doubt. And then can still execute if testing doesn't exonerate. Why wouldn't we want such certainty?

It is as if prosecutors fear “losing” or, worse, embarrassment. And those procedural barriers have carried more weight in this state's courts than the “interests of justice.”

Too bad there is no statute requiring shame as a factor.

Earlier coverage of Hank Skinner's case begins at the link.

The Oregon Moratorium - Additional Commentary & Coverage

 "Oregon's death penalty halt merciful and right," is the title of Mark Osler's post at CNN.  Mark Osler is a University of St. Thomas Law prof and a former federal prosecutor.  He's also the author of Jesus on Death Row, written while he taught at Baylor Law.

Oregon and other states have incorporated executive clemency into their systems of criminal law, drawing on the example laid out in the United States Constitution. The framers of the Constitution chose intentionally to give the executive that power, knowing full well that it would necessarily run contrary to popular will.

If you are angry with Kitzhaber for using that power, also direct your anger at Alexander Hamilton, who was a driving force behind the institution of executive clemency in the United States. Here is part of what Hamilton said about it in Federalist Paper 74: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. ... On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men."

And:

A second buried truth is revealed within the tortured way in which Kitzhaber announced his decision. During a prior term as governor, in 1997, he had allowed two executions, and it seems clear that he was deeply troubled by his role in those killings. How could he not be? It is a heavy responsibility to participate in a deliberative process that identifies a citizen to be put to death by the state. However, Kitzhaber is just the exposed tip of an iceberg of human emotion. Beneath him are thousands of others who have been forced by the institution of capital punishment to live with their role in an intentional death.

Among that group are lawyers, witnesses and judges, but perhaps most sympathetic of all are the jurors. They are plucked from their daily lives by the government and suddenly thrust into the most important role of all -- they must vote, unanimously, after deliberation, on whether someone will live or die. If they vote for execution, they must file back into that hushed, tense room, look that person in the eye and say in the most public of ways that they have chosen him to die.

I have known some of those jurors. Years later, even if they were convinced they were right, they revealed deep and dark emotions related to what they had done. At best, that service was seen as a difficult but worthwhile sacrifice, and at worst as a moment they too often relived while filled with doubt.

Kitzhaber is right to say that the capital process is fatally flawed. It is unfair to some defendants, yes. But a system that tries many, condemns some to die and executes few is also cruel and unusual to those who work within the process. It is primarily inflicting pain on victims' relatives who wait in limbo, on jurors who relive those discussions, on prosecutors whose hearts are hardened while their efforts are frustrated and on the budgets and reputations of the states that choose to go on with it anyway.

Diann Rust-Tierney posts, "Leadership," at Huffington Post.  She's executive director of the National Coalition to Abolish the Death Penalty."

Yesterday, Governor John Kitzhaber imposed a moratorium on executions in Oregon.

He did not, as much as I might like to see it, end the death penalty.

Faced with deciding whether to allow the execution of Gary Haugen on December 6th, he did the right thing. He was honest with the public about his doubts about Oregon's death penalty and he acted on his convictions.

The governor admitted he had tried it the other way. He had allowed the executions of two other men in 1996 and 1997. But those decisions haunted him and I submit, further tainted the outcome because he acted against his better judgment.

And:

In the best tradition of leadership, Governor Kitzhaber has articulated a vision of a criminal justice system that is fair, reliable and accountable. More importantly, in the tradition of great leaders he has empowered the people of Oregon to engage in a principled and reasoned dialogue about how best to reach that collective vision.

At the Oregonian, associate editor David Sarasohn writes, "On voluntary execution, Kitzhaber won't sign on."

John Kitzhaber has a perspective on capital punishment that nobody else around quite has. He's the only Oregon governor in 50 years -- and the only one alive -- with his signature on execution orders.

Signing them has stayed with him.

"They were the most agonizing and difficult decisions I have made as governor and I have revisited and questioned them over and over again during the past 14 years," he said Tuesday, explaining why he was refusing to approve the execution of Gary Haugen. "... And I simply cannot participate once again in something I believe to be morally wrong."

The prospect of being hanged, noted the 18th-century English writer Samuel Johnson, concentrates the mind wonderfully.

Apparently, so does the prospect of signing the order for the hanging.

It can be an agonizing responsibility for governors. Other politicians can pound their chests about the rightness of the death penalty, but there's just one name on the order.

And:

George Ryan, commuting every death sentence in Illinois, called the state's system "arbitrary and capricious." Oregon's system may not have the beaten confessions, incompetent defenses and racial sentencing patterns of Illinois -- or Texas, despite Austin's statehouse satisfaction -- but it's clearly arbitrary in its own very Oregon way.

And the arbitrariness may be inescapable.

"The basic question -- does the system accurately and consistently determine which defendants 'deserve' to die? -- cannot be answered in the affirmative," concluded Supreme Court Justice Harry Blackmun in 1994, abandoning any effort to provide judicial guidelines for executions. "From this day forward, I no longer shall tinker with the machinery of death."

And if you're John Kitzhaber, you won't sign your name to it.

Also at the Oregonian, columnist Steve Duin writes, "Oregon Gov. John Kitzhaber's vote is the only one that counts."

In two dramatic moves — curiously timed for Thanksgiving week — Gov. John Kitzhaber has firmly established the pecking order in Oregon politics.

And:

There’s only one sheriff in town. John Kitzhaber took last November’s election, for good reason, as the only vote he needed to act decisively on his prescription for what ails us.

He’s not asking for second opinions. His morality is law. And 1,142 days remain in his four-year term.

"Capital punishment slowly loses ground in US," is the AFP post by Chantal Valery.  It's datelined Washington, DC.

With a new moratorium on the death penalty in Oregon and a drop in the number of death sentences and executions, capital punishment is slowly losing ground in the United States.

Oregon governor John Fitzhaber announced on Tuesday that the northwestern state will halt executions at least until the end of his mandate, joining the camp of US states that have effectively shunned the death penalty.

"I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor," said Fitzhaber, who said he had come to the conclusion they were "morally wrong."

The governor suspended the last execution scheduled for this year, halting the count for the number of people put to death in the United States in 2011 at 43.

That total is slightly below that seen last year, and less than half the number of people executed each year in the 1990s. The number of death sentences also has fallen since then by nearly a third.

Only a dozen of the 50 US states conducted executions last year, most of them in the south.

"Slowly, state by state, there is this erosion of support for the death penalty," Richard Dieter, the director of the Death Penalty Information Center, told AFP.

In all, 16 states have abolished the death penalty or did not re-adopt it after it was restored by the US Supreme Court in 1976. They could be joined as early as next year not only by Oregon, but also by Maryland, Connecticut and California.

"Debate on death penalty revives," is a lengthy article by Alan Gustafson from the Sunday edition of the Salem Statesman Journal, in Oregon.

Questions and uncertainty about the long-term fate of Oregon's death penalty loom in the wake of Gov. John Kitzhaber's controversial decision, announced on Tuesday, to block the scheduled Dec. 6 execution of twice-convicted murderer Gary Haugen, and to ban all executions for the remainder of his term.

The Democratic governor said he has long regretted allowing Oregon's two most recent executions — those of serial killer Douglas Wright in 1996 and Salem double killer Harry Moore in 1997.

"I do not believe those executions made us safer," Kitzhaber said. "Certainly I don't believe they made us nobler as a society. And I simply cannot participate once again in something I believe to be morally wrong."

The Los Angeles Times reports, "Death row inmates' desire to die renews debate," by By Carol J. Williams.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

One of 718 prisoners on California's death row, Stanley has renewed an ethical debate among legal experts about whether a condemned prisoner who drops resistance to execution has been driven insane by his confinement or has accepted his fate and should be allowed a dignified end.

An Alameda County judge has ruled that Stanley is competent to decide his own legal matters. He is one of at least three condemned men on the nation's death rows volunteering to expedite their sentences. Gary Haugen, an Oregon man convicted of killing his former girlfriend's mother in 1980, and a fellow inmate in 2003, was ruled competent in September and faced a Dec. 6 death by lethal injection until Gov. John Kitzhaber just days ago banned further executions during his term. The third, Eric Robert, killed a guard at his South Dakota prison in April while serving an 80-year sentence for kidnapping. He has vowed to kill again until his death wish is granted.

Since the modern era of capital punishment began with the 1977 execution of Gary Gilmore in Utah, civil rights advocates and death penalty supporters have debated whether a state would run afoul of laws prohibiting execution of the mentally ill if they bow to a condemned inmate's suicidal impulse.

"Most of these people aren't dropping their appeals because they believe it's the punishment they deserve," said John Blume, a Cornell University law professor and author of "Killing the Willing," a 2005 study of those who abandon pursuit of reprieve.

And:

Sean O'Brien, a University of Missouri-Kansas City law professor who has worked with death row volunteers for 30 years, calls the pursuit of execution "suicide by court."

"Over the course of time there are many who say 'I'd rather die than remain here,' " O'Brien said. He notes that volunteers "can be very persuasive, even if they are seriously mentally ill. A person intent on killing himself can figure out how to get the job done. They know what to say."

Death penalty supporters see nothing wrong with that and urge states to honor the volunteers' wishes.

"Oregon Governor Bans The Death Penalty," by Greg Howard at Slate.

Kitzhaber said his "heart goes out" to the families of Haugen’s victims, but the three-term governor said he has long regretted allowing two men to be executed in 1996 and 1997. The two inmates, like Haugen, had also waived their appeals. And although Kitzhaber did not stop their executions, the governor was once an emergency room doctor, and said his opposition to the death penalty was connected to his oath as a physician to "do no harm." Kitzhaber said Oregon voters didn’t reinstate the death penalty in 1984 to only put to death inmates who volunteer.

"The reality is that, in Oregon, our death sentence is essentially an extremely expensive life prison term," Kitzhaber said. "Far more expensive than the terms of others who are sentenced to life in prison without parole, rather than to death row."

Earlier coverage of Oregon's moratorium begins with the preceding post.

The Oregon Moratorium - Background & Editorials

On Tuesday, Oregon Governor John Kitzhaber imposed a moratorium on executions.  For background, let's begin with William Yardley's New York Times report, "Oregon Governor Says He Will Block Executions."

Gov. John Kitzhaber of Oregon on Tuesday said he would halt the execution of a death row inmate scheduled for next month and that he would allow no more executions in the state during his time in office.

“It is time for Oregon to consider a different approach,” Governor Kitzhaber, a Democrat elected last fall, said in a news conference in Salem on Tuesday afternoon. “I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor.”

Oregon, which uses lethal injection, has executed just two people since its voters approved the death penalty in 1984, and both of those inmates waived certain rights to appeal, making them so-called volunteers. The state, which has 37 inmates on death row, last executed someone in 1997. It has been one of at least seven states that allow the death penalty but have not used it in more than a decade, according to the Death Penalty Information Center.

But Oregon’s status appeared likely to change after Gary Haugen, a twice-convicted murderer, waived several appeals and asked to be executed. Mr. Haugen, convicted of killings in 1981 and in 2003, has testified that the death penalty wastes taxpayer money and is unjustly carried out. But in a court appearance in October, Mr. Haugen said: “This is going to be one time where I just don’t do a lot of talking, because I’m ready, your honor. Because I’m ready.”

Outside groups fought to stop the execution, but late Monday the Oregon Supreme Court ruled, 4 to 3, to allow it to go forward. By Tuesday morning, Governor Kitzhaber’s office had scheduled his afternoon announcement.

The governor, a physician who served two previous terms, from 1995 to 2003, noted that he had allowed the two earlier executions to go forward under his watch.

“They were the most agonizing and difficult decisions I have made as governor and I have revisited and questioned them over and over again during the past 14 years,” Governor Kitzhaber said. “I do not believe that those executions made us safer; certainly I don’t believe they made us more noble as a society. And I simply cannot participate once again in something I believe to be morally wrong.”

Noting the length of time many inmates spend on death row, often more than 20 years, he said Oregon had an “unworkable system that fails to meet basic standards of justice.” He said there was a wide sense the death penalty process was flawed but that the state had “done nothing; we have avoided the question.”

“It is a perversion of justice when the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury,” he said. “The only factor that determines in Oregon whether someone sentenced to death will actually be executed is that they volunteer to die.”

The governor did not commute the sentence of Mr. Haugen or any of the other death row inmates. He granted Mr. Haugen what he called a temporary reprieve. He asked the Legislature “to bring potential reforms before the 2013 legislative session” and he encouraged “all Oregonians to engage in the long overdue debate that this important issue deserves.”

"Oregon and the Death Penalty," is the New York Times editorial of November 25.

A referendum restored the death penalty in Oregon in 1984. The state has 37 inmates on death row. The only two people put to death since the penalty was reinstated stopped their appeals, agreeing to be executed.

In the current case, Gary Haugen asked to be executed. Convicted of murders in 1981 and in 2003, he told an Oregon court in October that he was “ready” to die. The Oregon Supreme Court, by a 4-to-3 vote, ruled on Monday that his execution could go forward.

Governor Kitzhaber, in giving Mr. Haugen a reprieve, said the system is “compromised and inequitable” and “fails to meet basic standards of justice.” He asked the Legislature to begin “the long overdue debate that this important issue deserves” and “to bring potential reforms before the 2013 legislative session.” With his decision, he sets an example for governors in the other 33 death penalty states for ending this barbaric punishment.

Yesterday's Albany Democrat Herald of Oregon carried the editorial, "Death penalty hasn’t worked."

Despite the ambiguity involved, Kitzhaber was right to call off the Haugen execution. A governor must follow his conscience, and if he sees a wrong, he must do what he can to prevent it regardless of the legalities involved. If voters disagree, they can act accordingly the next time he’s on the ballot.

As the Haugen case showed, the way Oregon handles the death penalty is plainly wrong. It was a case of dueling psychiatrists. One found him incompetent to waive his appeal rights, and the next one found the opposite. Then the Oregon Supreme Court voted to let the execution proceed, but the vote was 4-3, hardly a clearcut decision.

"In ordering a moratorium on executions for the duration of his term, he showed courage and was true to his convictions," is the Los Angeles Times editorial.

Oregon Gov. John Kitzhaber angered prosecutors, victims' families and doubtless many voters this week when he granted a reprieve to all 37 of the state's death row inmates for the duration of his term. In doing so, he committed one of the most courageous and conscientious acts we've seen on the national political stage in some time.

And:

Even Haugen isn't too thrilled with Kitzhaber. The inmate voluntarily ended his appeals, just like the other two convicts executed in Oregon over the last 27 years, and was prepared to die. But that points up another problem with the way capital punishment is practiced in Oregon and many other states: It is a sort of assisted-suicide program in which appeals are endless and the only people actually executed are the ones who want to be. Is that justice?

California Gov. Jerry Brown opposes capital punishment, but he says he'll enforce it because that's what voters want. It's a pity he lacks the courage of his convictions, unlike his colleague to the north.

There will be additional commentary and news coverage of the Oregon moratorium in the next post.

Tuesday

I'll be traveling on Tuesday.  Posts will resume as WiFi allows.

More on NC Prosecutor Tracey Cline

"State Bar looking at Cline," is the News & Observer report by J. Andrew Curliss.

State agencies that discipline lawyers and judges are at work reviewing the escalating confrontation between Durham District Attorney Tracey Cline and Superior Court Judge Orlando Hudson, officials said Friday.

An unprecedented 12-page court filing by Cline on Thursday in one case, and a second one 285 pages in a different case that was made public Friday, accuse Hudson of violating judicial standards. Cline alleges Hudson has dismissed cases for reasons not based in fact but to punish Cline.

Cline has written that Hudson's rulings "raped" victims of crimes. She seeks to remove him from all criminal cases in Durham until the matters are resolved by the now-expected outside reviews.

Hudson, the chief resident judge in Durham, has said he welcomes a review of his work.

Reaction to Cline's shorter filing was strong Friday, with a former chief justice suggesting the N.C. State Bar - the agency that regulates lawyers - must evaluate it based on rules that require actions based in facts and prohibit lawyers from engaging in "undignified" or "discourteous" conduct that degrades a court.

"I have never, never seen anything like it," said Burley Mitchell, a former prosecutor, trial judge and chief justice of the state Supreme Court.

Mitchell and others said that Cline's approach should be through the appeals on the cases in the courts, and that a prosecutor should not attack a judge in the way she has.

Jim Coleman, a law professor at Duke University who has followed legal issues in Durham, said the State Bar will "have problems" with what Cline has filed.

"These cases are on appeal," Coleman said. "If Hudson made an error, it will be corrected on appeal. You don't discredit a judge in this intemperate way." Coleman said he was unaware of any similar allegations made by a prosecutor against a judge like this "in any context."

Cline has been under scrutiny this year, both because of Hudson's orders and The News & Observer's three-part series, "Twisted Truth." The series reported that Cline had withheld evidence favorable to defendants and had misstated facts to judges. Cline has called the newspaper's work an "injustice."

Under state law, much of the investigative work by the N.C. State Bar and the state Judicial Standards Commission is shrouded in secrecy.

Earlier coverage of Durham DA Cline begins at the link.

Scott Turow's Innocent

Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," which will premiere Tuesday, November 29, on the cable channel.  Here's part of the blurb:

Bill Pullman (Independence Day, Torchwood) stars as Rusty Sabich, a judge charged with the murder of his wife, a situation that comes 20 years after he was cleared in the death of his mistress. During this latest trial, a secret affair from Rusty's recent past threatens to hamper his defense and fracture his relationship with his son. Oscar® winner Marcia Gay Harden (Pollack, Damages) plays Rusty's wife, while Alfred Molina (Spider-Man 2, Law & Order: LA) is his friend and defense attorney.

And:

Scott Turow's Innocent is a sequel to Turow's bestseller Presumed Innocent. The movie is written and directed by Mike Robe.

The made-for-cabel movie was also the topic of a New York Times article, "Made-for-TV Movies, Reborn on Cable," by Kathryn Shattuck in the Sunday Arts section.

IT’S a scene a movie studio might once have spilled a little blood for: Bill Pullman, stepping into the shoes of Harrison Ford as Rusty Sabich, the prosecutor turned suspected murderer in “Presumed Innocent,” the 1990 hit based on the thriller by Scott Turow. Marcia Gay Harden as Rusty’s brilliantly deranged spouse. Alfred Molina as the defense lawyer Sandy Stern. And Mr. Turow himself, who, despite initial resistance to writing a sequel, revisiting the Sabich saga some 20 years later.

But these days it’s exactly the kind of movie a studio probably wouldn’t touch. Instead “Scott Turow’s Innocent,” which now places Sabich behind the murder of his wife, brings its pedigree to cable television, increasingly the home for Hollywood types who crave adult-oriented drama.

“Innocent,” to be shown on Nov. 29, is the first entry of TNT’s “Mystery Movie Night,” weekly adaptations of novels by Sandra Brown, Lisa Gardner, Richard North Patterson, April Smith, Mary Higgins Clark and Carol Higgins Clark, starring veterans like Dermot Mulroney, Anne Heche, Judd Hirsch and Jane Alexander.

And:

For Mr. Turow, “the biggest benefit is that it gets made,” he said, noting that his novel “Innocent,” published in May 2010, took months to become a television movie versus years of feature development.

In addition to his novels, Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

Oregon Execution Date Set

The Oregonian reports, "Behind execution of Gary Haugen, controversy swirls around the drugs used and who administers them."  It's written by Joe Rojas-Burke.

Executions by lethal injection are supposed to be quick, painless and more humane than the gas chamber or gallows.

The condemned rests on a hospital gurney. Technicians attach heart monitors and place intravenous lines, usually in each arm. When the time comes, an executioner in another room pushes the plunger on a syringe connected to the IV line, delivering a barbiturate anesthetic to induce a coma within seconds. Two more injections quickly follow: pancuronium bromide to stop breathing and potassium chloride to arrest the heart.

Oregon, preparing to execute convicted murderer Gary Haugen on Dec. 6, uses this three-drug lethal injection, as do nearly all of the 34 death penalty states. But the killing method remains controversial. Critics say poor understanding of the drugs' effects and executioners' lack of medical training has led to botched cases and a likelihood of extreme suffering in some instances.

"A firing squad probably causes less pain and suffering," says Dr. Jonathan Groner, a pediatric surgeon in Columbus, Ohio, and outspoken critic of medicalized executions. "Lethal injection looks like outpatient surgery, so people are willing to allow it."

But Dr. David Dershowitz, an anesthesiologist in Worcester, Mass., who has served as an expert witness for states imposing the death penalty, says the initial dose of anesthetic should reliably obliterate all sensation and perception of pain. Controversy persists because independent researchers aren't allowed to see detailed records of executions, says Dr. David Waisel, an anesthesiologist and medical ethicist at Boston Children's Hospital.

"Departments of corrections hide their data, so we have no idea how often problems occur, or what kinds of problems occur," says Waisel, who has testified as an expert witness for defendants facing the death penalty.

"I suspect that if lethal injection was done well, it would be painless. If it's done poorly it's very, very inhumane."

Death penalty opponents, including Amnesty International and the ACLU of Oregon, petitioned Gov. John Kitzhaber to halt executions in Oregon until the state completes a review of the effectiveness of the three-drug method. Corrections Department officials and the governor have declined to comment on the petition.

"Prison superintendent outlines plans for death row inmate Gary Haugen's final hours," by Helen Jung is also in the Oregonian.

If all goes as planned on Dec. 6, Oregon State Penitentiary Superintendent Jeff Premo will place his hand on the shoulder of death row inmate Gary Haugen and say his name three times after an executioner injects the twice-convicted killer with an anesthetic.

If Haugen does not respond, Premo will then brush his finger across the prisoner's eyelashes, looking for any reflexive flicker.

And if Haugen still does not respond, only then will Premo give the go-ahead for the executioner to administer two more drugs that will paralyze the 49-year-old inmate and stop his heart. Haugen, who has waived legal challenges to his conviction and death sentence, would become the first person executed by the state in 14 years.

Preparing for the execution has been "the most challenging thing I've done in my life," Premo said Friday.

He declined to share his personal feelings about the death penalty or about Haugen, but noted that he started working at the prison in March 1981 -- just eight months before Haugen was admitted -- and said the two have developed "a very good rapport" in the 30 years they have known each other.

In a briefing with reporters and photographers, Premo outlined in detail how the penitentiary will carry out the lethal injection so it is "professional" and "humane." Media members also toured the execution room and the cell where Haugen will spend his last 48 hours.

Premo and his staff have spent more than a year researching what other states do, consulting with lawyers and talking with medical professionals about how to update the state's procedures, he said. Premo himself traveled to Texas to witness an execution.

The results have ushered in some changes, such as the plan for Premo to personally verify that Haugen lapses into unconsciousness from the first drug -- pentobarbital -- before he allows the executioner to administer the next two drugs.

The AP report, "Judge orders Haugen execution," by Jonathan Cooper is via the Eugene Register-Guard.

Gary Haugen will spend the last 48 hours of his life in a small cell just a few steps from the gurney where he’ll be executed for fatally stabbing and bludgeoning a fellow inmate.

Shortly after dusk, eight corrections officers will take him on the 12-foot journey to an execution chamber that hasn’t been used in more than a decade. They’ll stretch leather straps across his arms, legs and chest before medical professionals insert IV catheters to carry lethal doses of medication into each wrist.

A Marion County Circuit Court judge signed a death warrant Friday ordering Ore­gon’s first execution in 14 years. Haugen is scheduled to die by lethal injection on Dec. 6. The 49-year-old inmate has disregarded advice from his lawyers and waived his remaining appeals.

Department of Corrections officials briefed reporters Friday on the lethal injection process and their yearlong preparations for Oregon’s first execution in 14 years.

“Carrying out the execution is a serious and solemn matter,” said Mike Gower, assistant director of operations for the Corrections Department.

Corrections officials say they’ve been preparing for more than a year for Haugen’s execution. Oregon State Penitentiary Superintendent Jeff Premo traveled to Texas and Oklahoma to observe preparations, and he oversaw two recent practice runs in Oregon. Preparations have cost $42,000 so far, excluding legal costs, he said.

Earlier coverage from Oregon begins at the link.

Sunny Jacobs

Yesterday's New York Times featured, "Sunny Jacobs and Peter Pringle," in the Weddings/Celebrations Section.  It's written by Vincent M. Mallozzi.

MOST married couples will tell you that the things they hold in common helped cement their relationships. For Sonia Jacobs, 64, and Peter Pringle, 73, married in New York last Sunday, common ground was the decade and a half each had served on death row before their convictions were overturned for the murders that they steadfastly maintained they did not commit.

“We have each lived a nightmare,” Ms. Jacobs, in a gold dress and matching pearls, whispered to a friend minutes before marrying Mr. Pringle, his snow-white beard aglow against the backdrop of a black suit and matching bow tie. “Now it’s time to live our fairy tale.”

Once upon a darker time, Ms. Jacobs and her second husband began serving death sentences for two murders in Florida. She entered solitary confinement inside Broward Correctional Institution as a “28-year-old vegetarian hippie,” she said, and exited prison as “a 45-year-old orphan, widow and grandmother.”

Ms. Jacobs, known as Sunny, was born in Queens. She was living in Los Angeles in 1998 when she first encountered Mr. Pringle in Galway, Ireland, at an Amnesty International event she had spoken at that April.

Mr. Pringle said he remembered being riveted as she reeled out the story of how a February 1976 car trip she had taken with Jesse Tafero, her second husband, landed the couple on death row. Behind the wheel, she said, was Walter Norman Rhodes Jr. (who had befriended Mr. Tafero during an earlier prison stint for both men). He was giving the couple a ride from Miami to the home of friends in West Palm Beach, Fla. Also in the car was Christina, the couple’s 10-month-old daughter and Eric, Ms. Jacobs’s 9-year-old son from her first marriage.

And:

Nearly a year after Ms. Jacobs moved to Ireland, her story, along with those of five other wrongfully convicted death row inmates, became “The Exonerated,” a play put on by the nonprofit theater Culture Project that had its Off Broadway debut in October 2002.

Ms. Jacobs was first portrayed by Jill Clayburgh, and 28 actresses have since played the role of Ms. Jacobs, a list that includes Mia Farrow, Lynn Redgrave, Susan Sarandon, Kathleen Turner, Brooke Shields, Marlo Thomas and Amy Irving.

Friday

I'll be in meetings all day Friday.  I hope you'll take the opportunity to visit sites on the left-colum webroll, especially the Daily Must Reads.

In Maryland

Today's Baltimore Sun carries the OpEd, "For the sake of victims' families, repeal the death penalty," by Vivian Penda.  She is co-chair of the board of directors of Maryland Citizens Against State Executions.

I always thought murder was something that happened to other families. You read about it in the paper. You see the legal process unfold on TV. There's so much attention paid to certain murders that you assume the families going through their tragedy are getting support and help.

Then my son, Dennis, was murdered in 2002, and I learned how little support there actually is. Losing Dennis rests heavily with me every day. His murder received no notice, and our family was left to grieve on our own.

It turns out that my experience is not unusual. Only a small fraction of Maryland's 400-plus murders each year generate headlines. For those with the knowledge and means to access help, there is a patchwork of government and nonprofit services to help victims' families cope with their loss.

For too many of us, there is none of that.

And:

The ugly truth is that capital punishment elevates a few murders, leaving the rest of us to suffer without recognition. The effort to identify the "worst of the worst" rests on a false assumption that some murders are simply ordinary. What mother is going to agree that her little girl or boy's murder was ordinary? All murders are horrible and leave behind a family in grief, a family overwhelmed by a heartache we all hope to never face.

In 2008, the Maryland Commission on Capital Punishment, having heard testimony from many survivors of murder victims, concluded that capital cases are more detrimental to surviving families than life-without-parole cases. The commission recommended repealing the death penalty and using the resulting savings to increase resources and services for surviving families.

This is why the 2012 death penalty repeal bill will include funds to aid murder victims' families. I will be working with other family members who have lost loved ones to violence to pass this bill next year.

In a time of shrinking resources, we need to make choices. Instead of pursuing a handful of executions that may not take place for decades, let's take care of the thousands of families across Maryland who have been hurt by violent crime. Let's take care of all of us.

Earlier coverage from Maryland begins at the link; related posts in the vicitms' issues index.

Phyllis Taylor on the Duane Buck Case

Phyllis Taylor is a surviving victim of Duane Buck, and she's written a letter to the editor in today's Houston Chronicle.

Regarding "Racial pattern in death penalty" (Page A1, Sunday), during Duane Buck's trial, a psychologist told the jury he was more likely to be a future danger because he was black. I am the surviving victim of Duane's crime.

As a Christian, I have forgiven Duane for his actions. My faith in God has given me the strength to fight the cycle of violence and to be compassionate, merciful and respect all life.

Duane himself has expressed deep remorse for his actions and has spent his prison time reflecting and deepening his religious faith. Although I believe Duane deserves punishment, I also believe that he has a right to a fair sentence not based on his race.

For that reason, I, along with 60 elected officials, civil rights leaders, legal professionals, former prosecutors, faith leaders and concerned citizens, have signed a letter to District Attorney Patricia Lykos asking her to ensure that Duane has a fair sentencing hearing free from consideration of his race. I pray that her office finds the courage to do the right thing.

You can read the complete letter signed by more than 60 community leaders, calling on Harris County District Attorney Pat Lykos to take positive action in the case; coverage of the letter is at the link. 

Earlier coverage of Duane Buck's case begins at the link.

Texas Execution

Texas carried out its 13th execution of the year, last night in Huntsville.  It was the state's 477th post-Furman execution since 1982; it was the final Texas execution of 2011

The AP report on the execution of Guadalupe Esparza is titled, "Texas executes convicted child killer."  It's via CBS News.

The execution was the 238th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

TDCJ notes that five executions are already scheduled for 2012.

To date there have been 42 executions in the nation this year; a total of 1,276 post-Furman executions since 1977. Earlier this week, Ohio and Florida carried out lethal injection executions.  Idaho is scheduled to execute Paul Rhoades tomorrow.

Thursday

I'll be traveling on Thursday

Embattled Prosecutors - Louisiana, North Carolina

From Louisiana, "DA Leon Cannizzaro is subpoenaed to testify about deals for murder witnesses," is the title of John Simerman's New Orleans Times-Picayune report.

An Orleans Parish judge on Monday issued a subpoena to District Attorney Leon Cannizzaro, ordering him to testify about deals that his office allegedly concealed that gave leniency to a pair of witnesses in a murder trial last year.

Criminal District Judge Julian Parker set a Dec. 7 hearing date for Cannizzaro to take the stand about a phone call he made to Lafayette prosecutors that appears to have played a role in helping one witness, Morris Greene, get sprung from prison a decade before his scheduled release.

And:

The case is the latest to raise questions about how the Orleans Parish DA's office treats constitutional requirements for disclosing evidence favorable to a criminal defendant.

Cannizzaro has said his office has come a long way in improving practices for turning over evidence since the Harry Connick era, the tactics of which have now come under U.S. Supreme Court scrutiny three times in 16 years.

Yet last week, prosecutors waited until the middle of trial to reveal a deal with a witness to an alleged attempted murder. A day earlier, U.S. Supreme Court justices ridiculed an assistant district attorney's argument that Connick's office acted legally when it failed to turn over evidence in a 1995 murder trial.

The high court has ruled that prosecutors must turn over all evidence favorable to the defense, including deals with witnesses for leniency or other potential favors.

From North Carolina the News & Observer reports, "Judge takes Cline to task."  It's by J. Andrew Curliss.

Durham District Attorney Tracey Cline "flagrantly violated" the rights of a Mebane man she is prosecuting on a charge of murder, according to a new written order by the senior judge in Durham that officially dismisses the case and adds to continuing questions about Cline's performance as a prosecutor.

Durham Superior Court Judge Orlando Hudson says in the 69-page order filed late Monday that Cline violated court orders, suppressed evidence, misrepresented facts to a judge, and failed to correct misrepresentations by a police detective and a medical examiner she called to testify in hearings about the murder case against Michael C. Dorman II.

And:

As a result of the prosecution's failures in handling the case, Hudson wrote, the murder charge against Dorman must be dismissed with prejudice, which means the charges cannot be refiled.

"The Court finds that due to the destruction of the remains, Mr. Dorman cannot investigate, erect and present an adequate defense," the order says. "It is not possible for Mr. Dorman to receive a fair trial."

Hudson had dismissed the charge orally from the bench at the conclusion of a two-day hearing in August, prompting an immediate appeal from Cline. The state Court of Appeals put the dismissal on hold while it awaits arguments. Hudson's written order was necessary for the appeal process to advance.

Earlier coverage of the Orleans Parish District Attorney's office begins at the link.  Related posts are in the prosecutorial misconduct index. 

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

NC Prosecutors Want to Repeal RJA

The AP filing is, "NC prosecutors want Racial Justice Act struck down," Gary D. Robertson and Martha Waggoner.  Versions are available via the News & Observer and the Republic.

North Carolina's prosecutors are almost unanimous in calling on legislators to repeal a law that allows defendants on death row to appeal their sentences by showing evidence of racial bias.

A group that represents state district attorneys is planning a news conference in Raleigh on Wednesday to shine a spotlight on the prosecutors' request that the state Senate strike down the Racial Justice Act.

In a letter sent Monday, the prosecutors said that if the 2009 law isn't repealed, it will severely hamper the justice system's ability to handle major cases.

North Carolina Advocates for Justice, a group that supports the law, has sent its own letter to Senate leader Phil Berger asking him to reaffirm the Legislature's support the Racial Justice Act.

"DAs seek repeal of death penalty law," is the WRAL-TV report.

The legislature should act quickly to repeal a new law that gives death row inmates another way to challenge their sentences on the grounds of racial bias, North Carolina's district attorneys argue in a letter to state senators.

“No district attorney supports race as a factor in either death penalty cases or in the criminal justice system in general,” Johnston County District Attorney Susan Doyle, president of the North Carolina Conference of District Attorneys, said in a statement. “While the name of the act sounds well-intentioned, the actual application is a threat to justice, truth and public safety,”

Doyle said in a letter addressed to Senate President Pro Tem Phil Berger that the Racial Justice Act could "crush an already under-funded and overburdened (court) system." Durham County District Attorney Tracey Cline was the only one of North Carolina's 44 elected district attorneys who didn't sign the resolution.

The Racial Justice Act allows death row inmates and defendants facing the death penalty to use statistics and other evidence to show that racial bias played a significant role in either their sentence or in the prosecutors' decision to pursue the death penalty. The law says an inmate's sentence is reduced to life in prison without the possibility of parole if the claim is successful.

A study by two law professors at Michigan State University found a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white. The study also showed that of the 159 people on death row in the state at the time of the study, 31 had all-white juries and 38 had only one person of color on the jury.

And:

The General Assembly is scheduled to reconvene Nov. 27 to work up to three days on several possible items. The legislature's adjournment motion allows lawmakers to consider bills during that period that are awaiting a concurrence vote, which means senators could vote on the repeal of the Racial Justice Act. Kentucky is the only other state with such a law.

The news release issued by North Carolina Advocates for Justice is, "NC Advocates for Justice and NAACP Call on Senate Leader to Commit to Racial Justice in Face of Inaccurate Opposition," is via PR Newswire.  Here's the full text:

The NC Advocates for Justice and the NAACP today called on Sen. Phil Berger to reaffirm his commitment to The Racial Justice Act.  

In a hand delivered letter, NCAJ's Dick Taylor and NAACP's Rev. William Barber refute inaccurate claims from the state's Conference of District Attorneys regarding the Cumberland County case of Marcus Robinson, in which qualified African-Americans were wrongly excluded from the jury pool.  

The letter cites a recent Michigan State University study of North Carolina capital cases.  The study found that, even when controlling for different circumstances, for individuals who killed white victims the odds of receiving the death penalty increased two and half times.  African-Americans and Native Americans, according to MSU, also faced apparent discrimination in other ways.

The letter concludes, "The courts of North Carolina have been doing an exemplary job of managing litigation under the RJA, both in terms of avoiding unnecessary costs and in terms of expediting review of serious claims of racial discrimination.  Now is not the time for the General Assembly to tinker with the statute and create potentially new avenues of appeal."

The complete letter is here (in Adobe .pdf format).

Earlier coverage of North Carolina's RJA begins at the link.

From Oregon

Oregon Public Radio stateion KUOW-FM reports, "Retiring Corrections Director Regrets Having To Oversee Execution."  It's by Chris Lehman.

The outgoing director of the Oregon Department of Corrections says he wishes he didn't have to oversee an execution during his final month on the job. Max Williams plans to leave the position at the end of December, a few weeks after Oregon's first scheduled execution in more than a decade.

Williams was appointed head of Oregon's prison system in 2004. During his nearly eight years on the job the inmate population expanded rapidly thanks in part to Oregon's mandatory sentencing laws.

He's taking a job as head of the Oregon Community Foundation, a non-profit charity. But before he leaves the Department of Corrections, Williams is scheduled to supervise what would be Oregon's first execution since 1997.

Two-time killer Gary Haugen has dropped his appeals and is slated to die by lethal injection on December 6th. Williams says he hoped he wouldn't have to oversee an execution as Corrections director.

"At the same time, when you take the oath to support both the Constitution and the laws of the state, you understand that that comes with the job and that's part of your ultimate responsibility," he says.

"Director of corrections resigns post," provides a broader profile of Williams in Alan Gustafson's Statesman Journal report.

The leader of Oregon's prison system is stepping down at the end of the year to become president of a nonprofit foundation, prompting Gov. John Kitzhaber to conduct a fast-track search for a new corrections chief.

"We are evaluating our options in terms of a national search," Kitzhaber spokesman Tim Raphael said Tuesday about finding a replacement for Max Williams, the outgoing director of the state Corrections Department.

The governor also will consider candidates from within the ranks of Oregon's 4,300-employee corrections agency, he said.

And:

Williams, 48, a former three-term Republican legislator, has led the Corrections Department for almost eight years. Then-Gov. Ted Kulongoski named him to the post in 2004.

Earlier news of corrections officials begins at the link.

Racially Biased Testimony Should Not Stand

That's the title of an editorial in today's Houston Chronicle on the Duane Buck case.

In January 2009, when Harris County District Attorney Pat Lykos took office, she lost no time in making good on her campaign promise to restore that department's integrity, left in tatters by her disgraced immediate predecessor.

Among her many innovations, she created programs for the most vulnerable crime victims, pushed for a regional crime lab, improved DNA protocols, and established a post-conviction review unit, which has secured the release of several wrongfully convicted inmates.

Now, we appeal to Lykos to address another serious issue, and hopefully take steps to see that justice is done: It's the case of death row inmate Duane Buck, who was convicted in the 1995 murders of his former girlfriend and her male friend, and at issue is whether racially charged statements had played a role in his receiving the death penalty.

And:

In September, the United States Supreme Court temporarily stayed Buck's execution, so they could review his request for a new punishment hearing. A week ago Monday, the court denied Buck's petition, leaving his fate in the hands of Texas officials. Lykos could now request that another execution date be set.

Our sincere hope is that she does not make that request, but instead that she "confess error," in legal terms, and also prevail on Texas Attorney General Greg Abbott to do the same, meaning they would not oppose Buck's request for a new sentencing hearing. Lykos told the Chronicle's Lise Olsen that she would "carefully evaluate the arguments of Mr. Buck's lawyers and his supporters" before deciding her course ("Racial pattern in death penalty," Page A1, Sunday).

Earlier coverage of Duane Buck's case and Harris County death penalty sentencing practices begins at the link.

BET News provides additional coverage to journalist Lise Olsen's reporting on Harris County death penalty cases, "Blacks Received 12 of the Last 13 Death Sentences in One Texas County."  It's by Jamie Katz.

Broken down by race, the population of Harris County, Texas, does not seem unusual or lopsided in any way: Census data indicates that the county, which contains the city of Houston, is 61 percent white, 18 percent Black, 38 percent Latino (a category that includes white and non-white), 6  percent Asian, and less than 1 percent Native American and others.

What is unusual, and very lopsided, is the racial breakdown of men sentenced to the death penalty in Harris County. According to a report by Lise Olsen in the Houston Chronicle, 12 of the last 13 men sentenced to death in the county were Black. The other man was Latino.

These figures bear out a pattern that has been documented nationwide, of African-Americans disproportionately being sentenced to capital punishment. But Harris County does enjoy a special, if macabre, distinction: It sends a lot of convicts to the death chamber. In fact, over a period of several decades, Harris County sentenced more people to death than any other state, except for Texas as a whole. Which means that the statistics on capital punishment are based on a larger sample size, as grim as that fact may be.

The Chronicle report picks up where earlier studies left off. A 2008 article in The Houston Law Review found that not only were defendants of any background who kill whites more likely to receive the death penalty, but the race of the defendant by itself plays an important role in explaining the severity of the punishment.

The case of Duane Buck, an African-American from Houston convicted in a double murder, has given the issue new urgency in Harris County. At his sentencing 14 years ago, testimony was permitted from a former prison psychiatrist who claimed that Blacks are more dangerous than whites.

The 2008 Houston Law Review article is the work of University of Denver scholar Scott Phillips, who conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

Wednesday - Texas Execution Scheduled

Texas is scheduled to carry out its 13th execution of the year, tonight in Huntsville.  It would be the state's 477th post-Furman execution since 1982. 

Tonight's execution would be the 238th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

Reuters posts, "Texas set to execute man who killed 7-year-old girl," by Corrie MacLaggan.

In 1999, Guadalupe Esparza, now 46, abducted Alyssa Vasquez from her San Antonio home when her babysitter was at a neighbor's place, authorities said. Her strangled body was found in a nearby field.

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.

Esparza's execution would be Texas' final execution of 2011.  TDCJ notes that five executions are already scheduled for 2012.

To date there have been 41 executions in the nation this year; a total of 1,275 post-Furman executions since 1977. Yesterday, Ohio and Florida carried out lethal injection executions.  Idaho has an execution scheduled for this Friday.

The Last Illinois Capital Prosecution

Today's St. Louis Post-Dispatch reports, "Illinois spent $1.1 million on Coleman case."  It's by Nicholas J.C. Pistor.

Illinois taxpayers spent more than $1.1 million for the defense and prosecution of Christopher Coleman, the former bodyguard who was sentenced to three life terms for strangling his wife and two young sons in 2009.

The money will be some of the last spent from the state's controversial Capital Litigation Fund. The fund, established in 1999, will be terminated at the end of the year because Illinois has abolished the death penalty.

The fund was created with the intent of ensuring fair trials for capital murder defendants. But it also has helped many counties, particularly those with small budgets, afford expensive capital cases by shifting the financial burden to state government.

To preserve that feature, state Rep. Bill Mitchell, R-Forsyth, has proposed legislation to create a similar fund to pay for some first-degree murder cases.

Monroe County State's Attorney Kris Reitz had sought a death sentence in the Coleman case and pressed forward even though Gov. Pat Quinn promised to commute any such sentence until the death penalty abolishment took effect.

That meant Reitz's county could avoid most of the major costs of the trial.

Coleman was convicted by a jury on three counts of first-degree murder. He then waived a jury decision on the penalty and was sentenced in May to life terms by Circuit Judge Milton Wharton.

The $1.1 million total spent by the state on the Coleman trial — $868,787 for the defense, $259,020 for the prosecution — was larger than the $500,000 to $700,000 average range the state paid for death penalty cases. It also dwarfs the $649,392 that Monroe County spent on judiciary and court-related expenses in all of 2010, according to records. Monroe County has a population of about 33,000.

Without the death penalty fund, the county would have had to find other ways to pay for the lawyers, investigators and psychiatrists who worked on the case.

John O'Gara, a lawyer representing Coleman, had asked for the trial to be put on hold until the death penalty issue was sorted out, in part, he said, to save the money.

Without the death penalty, defense lawyers wouldn't have needed to prepare testimony for a possible lengthy mitigation phase, which often requires expensive witnesses.

Related posts are in the cost index.

Ohio Appears Set to Execute

"Ohio set to execute man who killed 3 sleeping sons," is the automatically updating AP post written by Kantele Franko.

Ohio was poised Tuesday to end a nearly six-month break in its use of capital punishment by executing a man who fatally shot his three sons while they slept in 1982, shortly after his wife filed for divorce.

State and federal courts have rejected attorneys' arguments that 66-year-old Reginald Brooks of East Cleveland is not mentally competent and that the government withheld relevant evidence that could have affected Brooks' case.

The U.S. Supreme Court on Tuesday denied Brooks' request to halt the execution, as did the Ohio Supreme Court Monday. After a federal appeals court in Cincinnati rejected another appeal late Tuesday morning, Brooks' attorneys decided not to appeal further, said Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction.

The prison system pushed Brooks' execution until 1:30 p.m., just over three hours later than originally scheduled. LoParo said officials needed more time as they prepared.

Prison officials had temporarily postponed the execution until the final appeals were resolved.

And:

The defense contends Brooks is a paranoid schizophrenic who suffered from mental illness long before he shot his 11-, 15- and 17-year-old sons in the head as they slept at their East Cleveland home on a Saturday morning. The defense says Brooks believed his co-workers and wife were poisoning him and that he maintains his innocence, offering conspiracy theories about the killings that involve police, his relatives and a look-alike.

Prosecutors acknowledge Brooks is mentally ill but dispute the notions that it caused the murders or makes him incompetent.

Brooks' execution would be the 40th in the nation this year; Ohio's fifth execution of 2011.  It would be the nation's 1,274th post-Furman executions since 1977; Ohio's 46th 2 post-Furman executions since 1999.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright.  Competency to be executed is also an issue in the case of Scott Panetti.  StandDown's mental illness index is here.

Earlier coverage from Ohio begins at the link.

The State of Florida is also poised to carry out an execution, today. AP and CBS News post, "Florida set to execute convicted killer Oba Chandler."  Texas is scheduled to carry out its 13th execution of the year, tomorrow.

An Update From Idaho

Reuters posts, "Judge denies stay of execution for convicted Idaho killer."  It's written by Laura Zuckerman.

A federal judge refused on Monday to grant a reprieve to a convicted killer scheduled to be put to death by lethal injection on Friday in what would be Idaho's first execution in 17 years.

Lawyers for Paul Ezra Rhoades, 53, had sought an emergency stay while the courts weighed his legal challenge to Idaho's method of execution, arguing it would breach his constitutional protections against cruel and unusual punishment.

Defense lawyers questioned whether the powerful anesthetic the state planned to administer in its lethal-drug mix would render Rhoades unconscious before two other substances were injected to paralyze him and stop his heartbeat.

But U.S. Magistrate Judge Ronald Bush said he saw little chance Rhoades would prevail in his lawsuit, ruling that Idaho's execution protocols are similar to those in other states that have withstood legal challenges in federal court.

"The state of Idaho has an interest in seeing that its laws are enforced, and further delay will not meet that interest," Bush wrote in his 43-page decision.

Death warrants setting November 18 as the date for Rhoades' execution were issued last month after the U.S. Supreme Court declined to review his appeal of two separate murder convictions for which he was sentenced to death in 1988.

And:

Rhoades, whose execution has been set for Friday morning, would be the first person executed in Idaho since 1994, when condemned killer Keith Eugene Wells was put to death by lethal injection. The last execution before that occurred in 1957, and was carried out by hanging, Bush noted in his opinion.

The Idaho Department of Correction lists 15 inmates currently on death row, including Rhoades.

Earlier coverage of the Idaho case begins at the link.

More on Harris County Death Sentences

"Study Finds Racial Pattern In Texas Death Penalty Sentencing," from Black Voices News is at Huffington Post.

The connection between race and capital punishment has been a hot topic this year, but a new study has found a shocking pattern in the way one Texas county sentences people to die.

Of the last 13 men that have been sentenced to death in Harris County, 12 of them are black, according to an analysis of prison and prosecution records by the Houston Chronicle. The discovery has prompted some local lawyers to ask for an investigation and calls for more debate around the administration of capital punishment.

"The more the defendant looks like you the harder it is to kill him — human nature being what it is," said Robert Murrow, one of the county's capital defense attorneys. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

The role of race in death penalty sentencing became a major issue in the county when the U.S. Supreme Court halted the execution of Duane Buck, after reviewing the testimony of a psychologist who said during the trial that black people were more likely to commit violence. Buck's appeal of his pending execution was rejected last week. Although the inmate's supporters pleaded with Harris County District Attorney Patricia Lykos, she told The Chronicle she has not yet made a decision.

"Before we take any action, we will carefully evaluate the arguments of Mr. Buck's lawyers and his supporters," she told the news source. "He will receive fair and thorough consideration of his claims."

Lise Olsen's enterprise reporting in the Houston Chronicle was noted yesterday.  Also, University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

Earlier coverage of Duane Buck's case begins at the link.

The Florida Symposium

"Legal experts focus on Florida's death penalty," is the AP report on yesterday's symposium.  It's by Bill Kaczor, via Florida Today.  A slightly different version is available from the St. Augustine Record.  Here's an extended excerpt:

A panel that included legal experts, academics and lawmakers on Monday renewed a push for changes to try to make Florida’s death penalty more just and prevent innocent people from being executed.

Participants’ views about their chances of success ranged from hopeful to despairing in a state that leads the nation with 23 death row inmates who have been exonerated.

“It seems to be a problem that may not be able to be solved,” said former State Attorney Harry Shorstein of Jacksonville. “What the public doesn’t understand is how expensive this litigation has been over the years.”

Shorstein, who participated by telephone, supports the death penalty but said he’s troubled with the lack of movement toward fixing its problems.

Florida State University’s law school sponsored the forum to mark the fifth anniversary of an American Bar Association study that criticized the state’s death penalty procedures and made a number of recommendations.

One was that juries be unanimous in recommending death sentences. Florida is the only death penalty state that lets juries make sentencing decisions or recommendations by a simple majority. Florida judges have the final say but must give great weight to jury recommendations.

State Sen. Thad Altman for a second year is sponsoring a bill (SB 772) that would require unanimous findings of aggravating factors as well as death sentence recommendations. His legislation failed without so much as a committee hearing earlier this year.

“I’m hoping ... we can at least get a hearing,” the Viera Republican told other panel members. “I don’t think that’s asking too much.”

The panel’s moderator, Mark Schlakman, senior program director at Florida State’s Center for the Advancement of Human Rights, was more optimistic.

Schlakman noted the new bill would apply only to crimes committed after Oct. 1, 2012. Prosecutors had been worried about it being retroactive to existing cases.

Also, since the last legislative session, U.S. District Judge Jose E. Martinez in Miami has ruled Florida’s death sentence law is unconstitutional because jury recommendations don’t have to be unanimous. The state is appealing. “Irrespective of where the appeal goes, it underscores the concern about that process,” Schlakman said in an interview.

Some lawmakers have opposed changes because they were afraid that might result in more appeals. Martinez’ ruling shows the opposite may be the case, Schlakman said.

In a prerecorded video presentation, former Florida Supreme Court Justice Raoul Cantero said the high court as long ago as 2005 had urged unanimous jury recommendations.

The Florida News Service posts, "Symposium Advocates Unanimous Jury Verdicts in Death Penalty Cases," by Mike Vasilinda.

Meeting in the shadow of the state capitol, judges, lawyers, prosecutors and others debated how the death penalty is imposed.

“It’s the least that we can ask, that before we give the ultimate sentence to someone, that we require a unanimous verdict,” Sen. Thad Altman (R-Brevard) said.

At 24, Florida leads the nation in death row exonerations. Faulty eyewitness testimony is often the blame.

“The mind is not like a tape recorder,” Mike Minerva with the Innocence Project said. “It does not retain whatever images the person thought that they had

The experts say one of the biggest determinants of who gets death is simply which county your tried in.

Judge O.H. Eaton is a retired circuit judge from Seminole County with doubts.  For 15 years he has taught a required class for judges that qualifies them for murder cases.

“That whether a person lives or dies has more to do with the judicial assignment than the facts of the case,” Eaton said. “Now, if that doesn’t show you that we’ve got a broken system, I don’t know what does.”

Yesterday's preview begins coverage from Florida; coverage of the Florida ABA Assessment is also available.  A 2009 symposium at the FSU law school also examined issues raised in the ABA review.

From New Orleans

"DA Connick left a dirty legacy," is James Gill's column in the Sunday New Orleans Times-Picayune.

"Addressing the materiality prong of Brady" may sound vaguely risqué to the untutored ear, but nobody tittered at the U.S. Supreme Court last week when an assistant DA from New Orleans explained that was her plan.

If you are not a lawyer, perhaps you don't know who this Brady was and why his prong matters. If you are a lawyer, and used to work for Harry Connick when he was DA, you almost certainly don't. Brady was the Supreme Court case that required prosecutors to turn over "exculpatory" and "material" evidence to the defense.

Connick's office nevertheless railroaded merrily away, often in capital cases, and convictions are still being thrown out years later. After last week's hearing, it seems almost certain that Juan Smith will be the next inmate taken off death row. DA Leon Cannizzaro, in seeking to vindicate his discredited predecessor all the way to the Supreme Court, had nothing to gain but an execution. Smith will spend the rest of his life in prison regardless.

If pursuing the case would have been pointless in a jurisdiction without the death penalty, this one was pointless even here. Cannizzaro has just saddled the taxpayer with a large tab because he evidently feels obliged to defend the lawless stunts of the Connick era. That is a misconception; in theory, at least, a DA's duty is not to rack up the convictions but to ensure that justice is done and due process observed.

And:

Connick's administration probably led the country in violations of Brady and all his prongs, and it required considerable mental contortions for a bare majority of this court eight months ago to deny John Thompson the $14 million a jury had awarded him for the 14 years he spent on death row for a murder he didn't commit. Justices concluded in the Thompson case that there was no "pattern" of suppressing evidence, but here was Andrieu with further proof that they were detached from reality.

Brady violations will no doubt be with us so long as prosecutors have the discretion to determine what evidence should be turned over. When the rule obliges them to share whatever might undermine their own case, if they err, it will always be on the side of divulging too little. But divulging too much is not possible, because there is nothing that can help the defense to which it is not legally entitled. That's why enlightened prosecutors advocate an open-files policy. Our prosecutors, on the other hand, are still out to defend their outlaw predecessors even when, as Elena Kagan suggested to Andrieu, she would have been better off "confessing error" than getting hung up on a prong.

More on last week's oral argument in Smith v. Cain and last session's ruling in Connick v. Thompson, at the links. 

Related posts are in the prosecutorial misconduct index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

RJA Update from North Carolina

"Justice act is law; prosecutors must live with it," is the editorial in today's Fayetteville Observer.

You could pretty much see this coming. Two Cumberland County assistant district attorneys who asked to have Superior Court Judge Greg Weeks removed from a case, based on conjecture, were rebuffed.

Their petition made no mention of Weeks' race - he's African American - but, because the case he was to hear was a sentence review under North Carolina's new Racial Justice Act, it was almost as predictable that some would perceive a hidden motive: a fear of what a black judge might say about the fairness of capital cases in Cumberland County.

That, too, was conjecture.

And:

Two things prevent this episode from going into the books as an arcane legal tiff.

First, it's hard to see what, if the gambit had succeeded, would have kept any lawyer on any side of a case from blocking a hearing by seeking a vague subpoena for a judge's testimony.

Second, the prosecutors' challenge to Weeks probably reinforced the suspicion that both offends them and underpins the Racial Justice Act.

The AP reports, "Hearing for death row inmate under NC Racial Justice Act delayed until January."  It's via the Republic.

A hearing for a Fayetteville man trying to get off death row on the grounds of racial bias has been postponed until January.

The hearing for Marcus Robinson had been scheduled to begin Tuesday. At a hearing Thursday in Nashville, Nash County Superior Court Judge Quentin Sumner granted prosecutors' request to delay the next evidentiary hearing to Jan. 30.

Robinson is trying to use the North Carolina Racial Justice Act to prove that racism led to his death sentence in 1994. If he wins his claim, his sentence will be converted to life in prison. Robinson's attorneys say prosecutors discriminated against qualified black jurors at his 1994 trial for killing a white teenager.

Earlier coverage of the North Carolina RJA begins at the link.

In Florida

Today's Miami Herald carries the AP filing, "Legal experts focus on Florida death penalty."

Legal experts are taking a look at Florida's death penalty and preventing the execution of innocent people.

A panel including former Florida Supreme Court Justice Raoul Cantero, lawyers and legislators will focus on those issues Monday at Florida State University's law school in Tallahassee.

The panel also will include Florida State President Emeritus Talbot "Sandy" D'Alemberte.

Also a former American Bar Association president, D'Alemberte, led efforts to create the Florida Innocence Commission.

The panel is examining wrongful convictions and making recommendations on how to prevent them in the future.

The Center for the Advancement of Human Rights has issued a news release, "The Death Penalty: Evolving Issues in Florida," listing the participants.

"Flawed death-penalty processes need review," is the Tallahassee Democrat editorial from Saturday's paper.  Here's an extended excerpt:

On Monday at Florida State University, the Center for the Advancement of Human Rights will host a forum meant to shift the conversation about capital punishment — from whether it's good public policy to its fiscal implications and integrity.

Five years ago, the American Bar Association released its Florida Death Penalty Assessment Team report, which raised serious concerns about the fairness and impartiality of Florida's death penalty process. It called for a complete review of legislative, executive and judicial branch involvement.

The report didn't support or oppose capital punishment, nor was it directed to the method of execution. But it did reveal enough cases in which the wrong Death Row inmate was executed to raise concerns about the administration of justice. Yet little has changed.

It is this unnerving gray area that participants in the forum hope to explore when they meet Monday in the rotunda of the FSU College of Law. The event, from 9:30 to 11:30 a.m., involves work of the ABA, the Constitution Project, which is a Washington-base bipartisan policy think tank, and participation by members of the Florida Bar's criminal law and public interest law sections as well as FSU's chapter of Amnesty International.

The need for a comprehensive review of Florida's capital punishment processes is almost irrefutable, in light of the flaws and shortcomings varying from inadequate legal representation to racial disparities, demonstrating that the death penalty is used more often when the victim is white than when the victim is black or another minority.

Florida has been on the brink of really looking at its capital punishment system and making more certain that the wrong person isn't put to death — and, of significant public concern, that the real criminal doesn't remain uncaptured and unpunished.

Yet the Florida Commission on Capital Cases, which had made recommendations on how to safeguard the integrity of the law, help unclog the appeals system and perhaps save money, was itself eliminated in May to save state budget dollars.

Some slight movement is suggested in legislation that's being considered — for instance, to require unanimous jury recommendations for the death penalty — and Florida TaxWatch may study the financial implications.

But more focus is needed, considering that Florida has eventually exonerated more death-sentenced inmates than any other state — sometimes after DNA evidence or confessions by the real killers proved the injustice, but posthumously in some cases, too.

Earlier coverage of Florida capital punishment issues begins at the link.  Coverage of the Florida ABA Assessment is also available.  A 2009 symposium at the law school also examined these issues.

Idaho Prepares for Scheduled Execution

The Idaho Statesman reports, "Legal complexities stall executions of Idaho killers," by Patrick Orr.

Paul Blomberg is a man of faith.

It is his Christian faith that kept him from drifting into despair after his 22-year-old daughter Samantha Maher was abducted, raped and killed by a stranger in 2000.

Blomberg’s faith allowed him to endure weeks of horrifying testimony during a jury trial and two sentencing hearings — seven years apart — for Darrell Payne, the man sentenced to death two separate times for his crimes.

What Blomberg does not have much faith in, however, is an Idaho legal system that does not execute Death Row prisoners.

Since the Idaho death penalty was reinstated in 1979, more Death Row inmates (three) have been freed than have been executed (one). More than half of the 40 people given the death penalty have had their sentences changed and are no longer candidates for execution.

That could change Friday. Convicted killer Paul Rhoades is scheduled to die at 8:10 a.m. His lawyers have challenged Idaho’s lethal injection protocol as unconstitutional and asked for a stay of execution; U.S. Magistrate Judge Ronald Bush is expected to rule Monday. On Thursday, Bush said he has some doubts the Idaho Department of Correction is ready to execute Rhoades.

If Rhoades’ death proceeds as scheduled, he will be the first Death Row inmate executed against his will since 1957. Keith Wells, a convicted murderer, waived his appeals and was executed in 1994.

And:

Of the 40 inmates given the death penalty since 1979, eight have had their death sentences reversed by the Idaho Supreme Court, according the Idaho attorney general’s office. Ten cases are pending in the U.S. District Court in Idaho or the 9th Circuit Court of Appeals.

Three cases were reversed or settled by negotiation in the 9th Circuit Court of Appeals. The U.S. Supreme Court reversed the death sentence of convicted killer Bryan Lankford.

Three inmates have died while in prison.

Three inmates — Donald Paradis, Thomas Gibson and Charles Fain — have been freed because of new evidence.

"It has taken months to prepare for Rhoades' execution," is the AP report, also via the Statesman.

The last execution in Idaho was in 1994, when Keith Eugene Wells gave up further appeals and asked to be put to death. His execution was the first since 1957. For years, people suspected that no one else would ever be executed in Idaho.

Idaho Department of Correction officials thought otherwise. Idaho Maximum Security Institution Warden Randy Blades in March started emailing companies that sell anesthetic drugs, according to court documents, looking for someone willing to sell either sodium thiopental or pentobarbital for the execution.

The drugs have been difficult to get since U.S. manufacturers stopped selling them to prisons a few years ago; Blades eventually found a firm in India that would sell it to a U.S. business that would then re-sell the drugs to Idaho.

Meanwhile, Idaho Bureau of Prisons Deputy Chief Jeff Zmuda was searching for people to serve on Idaho’s execution team. Shortly after the U.S. Supreme Court refused to hear Rhoades’ final appeals on Oct. 11, Zmuda found enough qualified people to fill the medical team (charged with prepping Rhoades for the injection) and the execution team (charged with actually administering the chemicals). He doesn’t have any substitutes ready in case someone backs out, Zmuda told a federal judge last week.

Rhoades’ attorneys with the Federal Defenders of Idaho have also been working around the clock, trying to prove that Idaho’s method of lethal injection doesn’t meet constitutional muster.

Earlier coverage of lethal injection drugs purchased from India begins at the link.  Related posts are in the lethal injection index.

An Executioner's Cost

"Court filing details pay of Arizona executioner," is the title of Michael Kiefer's Arizona Republic report.

What's the going rate for putting someone to death in Arizona?

The most recent executioner was paid $18,000 in cash for each of five executions between October 2010 and July 2011 and $12,000 for a sixth execution that was stayed at the last minute by the U.S. Supreme Court in April. In all, the doctor retained to perform the executions earned at least $102,000 during that period.

The information was revealed late Thursday in court documents filed by the Federal Public Defender's Office in Phoenix, asking that the Arizona Supreme Court not issue a death warrant to permit the execution of Robert Charles Towery, who murdered a Paradise Valley man while robbing his house in 1991.

The Public Defender's motion claims that the Arizona Department of Corrections has consistently failed to adhere to its federal-court-approved protocol for executions by lethal injection. Alleged lapses include failing to check the backgrounds of the medical team conducting the execution and injecting the drugs through IV lines inserted into the groin instead of an arm. Furthermore, the motion reiterates recent discoveries that the department did not legally obtain the drugs for the execution, but instead had them shipped from England in such a way as to minimize scrutiny by U.S. customs officials and the U.S. Drug Enforcement Administration.

And:

That doctor's name is kept secret by state law, but the motion said that the doctor has since quit as executioner.

Earlier coverage of Arizona lethal injection issues begins at the link. Related posts are in the cost, lethal injection, and physician indexex.

Commentary on the Buck & Skinner Cases

"Duane Buck, Race and Capital Punishment," is the title of Andrew Rosenthal's Loyal Opposition blog post at the New York Times.

This post is devoted to the Supreme Court’s declining this week to review the Texas death-penalty case of Duane Buck.

Based on the duelling short opinions from Justices Samuel Alito Jr. (who voted with the majority to deny) and Sonia Sotomayor (who filed a dissent to explain why she voted to hear the case), it seems that this life-and-death matter turned on a single fact: A freighted question that Mr. Buck’s lawyer asked 14 years ago.

And:

The point is that the prosecutor zeroed in on race, and asked the jury to consider it as a factor in predicting Mr. Buck’s future dangerousness. It was that invitation that led the jury to impose what Justice Sotomayor calls “a death sentence marred by racial overtones.”

Given that a man’s life was at stake here, I think the Supreme Court justices could have gotten their heads out of minutiae and let Mr. Buck’s case have a rehearing.

"Hank Skinner case must be reviewed," is the Fort Worth Star-Telegram editorial from the Saturday paper.

Skinner's appellate attorneys noted that a law passed by the Legislature in May, based partly on this case, gives an inmate the right to request that the convicting court order testing of biological material for DNA even if the items were not entered into evidence during the original trial.

The criminal appeals court said in its order, "Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case."

It was an investigation in 1999 and 2000 by students at Northwestern's Medill School of Journalism that unearthed some of the disturbing facts now being used in Skinner's appeal. Since then, an arduous legal process has prevented an execution while his legal team tries to force the justice system to do all it can to discover the truth.

That should be the state's ultimate goal in any case, but especially one in which a man has been sentenced to die.

Earlier coverage of the cases of Duane Buck and Hank Skinner at the links.

Harris Death Penalties Show Racial Pattern

That's the title of Lise Olsen's report in today's Houston Chronicle.  It's subtitled, "12 of the last 13 men condemned in the county have been black."

The last white man to join death row from Harris County was a convicted serial killer in 2004. Since then, 12 of the last 13 men newly condemned to die have been black, a Houston Chronicle analysis of prison and prosecution records shows.

The latest death sentence was handed down in October to a Hispanic.

The role of race in capital punishment has emerged repeatedly this year in the unsuccessful appeals by Duane Buck, an African-American from Houston convicted in a double murder. His 1997 sentencing featured testimony from a former prison psychiatrist who claimed blacks are more dangerous than whites.

Harris County District Attorney Patricia Lykos, elected as a reformer, has overseen decisions about whether to seek the death penalty since 2009. Her staff says the decisions are "race neutral" and "fact based."

"Whether to seek the death penalty in a capital murder case is the most solemn and profound decision that I must make," Lykos told the Chronicle. "It is agonizing and gut-wrenching."

As part of its review of the last seven years of death sentences, the Chronicle also examined capital cases first prosecuted in the 1980s and 1990s that were reviewed again after successful death row appeals. Since November 2004, five men have been re-sentenced to death - three white, one black and one Hispanic.

Robert Morrow, one of the county's busiest capital defense attorneys, called the string of consecutive African-Americans who received new death sentences from 2004-2011 startling. He said those numbers alone should prompt additional research and debate - especially since relatively few participate in the local decision-making process as jurors or as prosecutors.

"The more the defendant looks like you the harder it is to kill him - human nature being what it is," Morrow said. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

And:

Harris County has a long history of aggressive prosecution of capital cases.

More than a third of the state's current 305 death row inmates came from Harris County. So did half of the 121 black inmates on death row, according to Texas Department of Criminal Justice data.

Blacks account for about half of recent murder arrests in Harris County. But they more often get charged with capital murder than whites or Hispanics, an analysis of more than 300 recent court cases by the Chronicle shows.

Related posts are in the race and geographic disparity indexes.  University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

More on Duane Buck's case at the link.

African-American Judge Remains on North Carolina RJA Case

Today's News & Observer reports, "udge stays on racial justice case."  It's written by Anne Blythe.

A Superior Court judge in Nash County on Thursday rejected an effort by Cumberland County prosecutors to have an African-American judge removed from one of the first Racial Justice Act cases to move through the courts.

Cumberland County prosecutors had sought to remove Greg Weeks, a Cumberland County judge, from the Racial Justice Act case of Marcus Robinson, a death row inmate for 20 years.

And:

Prosecutors contended they might need to call Weeks, a black judge who oversaw several death penalty cases in Cumberland County, as a witness to their character. On Thursday, Judge Quentin T. Sumner ruled that prosecutors had not shown that Weeks would be a material witness in their case and allowed the Cumberland County judge to continue to preside over the case.

"Ruling allows black judge to hear Racial Justice Act case," is the WRAL-TV report.

A black Superior Court judge will be allowed to hear the first appeal under the state's Racial Justice Act after another judge on Thursday ended prosecutors' attempts to call him as a witness in the case.

Superior Court Judge Greg Weeks was assigned to hear Marcus Robinson's appeal because he is the senior resident judge in Cumberland County.

Prosecutors wanted to use his position against him, saying they might call Weeks to testify because he has presided over several death penalty trials during his 23 years on the bench. As a witness, he wouldn't be allowed to handle the case.

"We do not think that he's not an appropriate judge to be hearing cases," Cumberland County Assistant District Attorney Calvin Colyer said. "Just not this one because he is more important to us ... as a witness than he is as our judge."

Legal experts and Robinson's attorney questioned that move, saying they thought Weeks' race played a role in prosecutors' efforts to stop him from hearing the case.

"We never expected we'd be standing before a court ... trying to prevent the state from disqualifying an African-American judge," said James Ferguson, an attorney for the Durham-based Center for Death Penalty Litigation, which is handling Robinson's appeal.

Weeks didn't attend Thursday's court hearing, but his attorney, Fred Webb, called the subpoena "frivolous."

And:

Superior Court Judge Quentin Sumner ruled that prosecutors failed to show that Weeks is a necessary witness for their case, and he quashed the subpoena.

"Death Penalty Debate: New Study On Race & Jury Selection," is the title of Dave Jordan's related report on WITN-TV.

Tye Hunter is the Executive Director for the Center for Death Penalty Litigation. Hunter says, "Are we going to kill people based on, ya know they're probably right?"

Hunter's center represents 40 people currently on death row. "When people support the death penalty one of their assumptions is there's no question about the person's guilt, that any questions about the person's guilt has been resolved in the accused's favor and that lots of courts and judges have looked at this. But our system, it's not that accurate."

Hunter says the cases of death row inmates having their convictions tossed out and set free are a clear example of a broken system. Some of those exonerations helped lead to the current death penalty moratorium. Since then, three more people have been set free, while others wait.

So where ultimately is the debate over the death penalty headed? More litigation certainly could be filed, but Bennett suggests letting voters decide. "I would love to see this state have a referendum on the death penalty and abide by whatever the public decides."

But Hunter says it's not quite that simple. Several current legal challenges need to be resolved in the courts, such as how North Carolina executes those on death row, execution protocol, and whether lethal injection constitutes cruel and unusual punishment. And the argument over the role race plays is about to be ratcheted up. Hunter says, "We're gonna show the court system some things and they are not going to like it. I don't like it. It's uncomfortable."

At a hearing next week in Fayetteville, Hunter's firm will detail a study on jury selection completed by Michigan State. He says the study reveals on all cases with people still on death row in North Carolina, qualified African Americans were kicked off the jury two to three times the rate of white people all over the state for twenty years.

Earlier coverage of the North Carolina RJA begins at the link.

David Baldus Academic Conference & Tribute Online

The University of Iowa College of Law has released podcasts of the David Baldus Academic Conference and Tribute. 

The Baldus Academic Conference and Tribute are available online. 

The event was held October 20, 2011.  The program and list of speakers is at the link.

Earlier coverage of the Baldus program and the Batson at 25 symposium is at the link.

Opinion Roundup

Former LA District Attorney Gil Garcetti writes the OpEd, "Death penalty cases not a smart use of limited funds," for today's LA Daily News.

I served 32 years in the District Attorney's Office in Los Angeles.

I've been gone for nearly 11 years. In those accumulated 43 years, only two people sent to Death Row from an L.A. court have been executed, despite decades of agony for the families of murder victims and hundreds of millions of dollars in costs to taxpayers.

I have concluded that the death penalty law should be replaced with life imprisonment without the possibly of parole. Why? Because the death penalty serves no useful purpose. It is not a deterrent. It is horrendously expensive, and we cannot afford it.

There also are too many instances, nationwide, where people have been on Death Row until new evidence determined their total innocence. I would not be shocked if one or more of the 720 prisoners on Death Row in California were innocent of the crime for which he or she awaits execution.

Even proponents of the death penalty agree that the current system brings no finality or closure to the family and friends of the murdered victim and that it is outrageously expensive. They argue that it can all be done faster or for less money. They don't fully understand California's laws or justice system.

David Love, the newly-named Executive Director of Witness to Innocence, a national organization of death row exonerees, writes, "The Death Penalty and #OccupyWallStreet," at Huffington Post.

Recently I attended the 12th Annual March to Abolish the Death Penalty in Austin, Texas. Participants included death penalty abolitionists, and members of Witness to Innocence -- over two dozen freed death row prisoners who spent years in prison, and once faced certain execution for crimes they did not commit. The day's events included a walk past the governor's mansion, and a rally on the Capitol steps.

One thing that struck me about the event in Austin was the presence of Occupy Austin protestors who were present to speak and lend their support. Clearly, they get it. They understand the link between the struggle for economic justice and the fight to end the death penalty in America. Perhaps you don't. Allow me to explain.

And:

America's economic and justice systems thrive on winners and losers, and someone is made to pay in the end. America's government has been sold to the highest bidder in the form of concentrated and unchecked corporate power. In the eyes of many, the political system is working for the few and against the vast majority of everyday people. Unlimited campaign finance is a scourge upon the land, operating as a legalized bribery scheme for the rich and famous. And the death penalty is part of a kangaroo court system in which poor and working class people become scapegoats for society's ills. These scapegoats are utilized to help deflect attention from the nation's problems, as we are all promised that their imprisonment and/or execution will make our problems disappear.

For years, the public had been sold on broken institutions that breed inequality, insensitivity and injustice. But there is ample proof that the people are no longer buying it. And the death machine -- not unlike American-style capitalism with its socialized risk and privatized gain -- is so inherently flawed that tweaking around the edges simply will not do. Fundamentally broken, it must be scrapped and replaced. What is needed is what Dr. King called a radical revolution of values, so that this nation emphasizes human rights over property rights, and upholds people over money.

Now that is why the death penalty abolition movement has so much in common with the Occupy Wall Street folks. Both know the fix is in.

Earlier coverage of California cost issues begins at the link.

Walter Quijano and the Duane Buck Case

Today's Houston Chronicle carries the editorial, "Texas Youth Commission made a bad hire."

Psychologist Walter Quijano has become notorious for testifying as a prosecution witness in Texas capital murder trials that black defendants are more likely to commit future violence than other ethnic groups. Now it turns out that he has also been on the payroll of the Texas Youth Commission for years, evaluating youthful offenders at TYC facilities in East Texas.

State Sen. John Whitmire, the Houston Democrat who chairs the Senate Criminal Justice Committee, says he was tipped off by members of the justice advocacy group Texas Appleseed that Quijano worked for the TYC. Whitmire, who has led the fight to reform the scandal-plagued Texas juvenile justice system, says Quijano's views on race should disqualify him from working with troubled youth.

"If someone had not brought that to my eyes, I would not have known that at this point in time they're still using this guy," said Whitmire. He wonders how TYC officials missed the controversy that erupted two months ago over Quijano's racially tinged testimony in convict Duane Buck's trial. It led the U.S. Supreme Court to temporarily stay Buck's execution before rejecting his appeal.

And:

We share Sen. Whitmire's exasperation that TYC officials approved contracts with a psychologist whose race-related court statements have triggered legal controversies as long ago as 2000. Then-Texas Attorney General and current U.S. Sen. John Cornyn denounced Quijano's testimony for improperly injecting race into numerous criminal justice proceedings.

The Root carries journalist E.R. Shipp posts, "What's Next for Duane Buck on Death Row?"

Buck is not someone I would invite home to Sunday dinner; nor is he someone to whom I would send care packages. He is no hero by any means, despite the fact that his lawyer from the Texas Defender Service says that he is remorseful. This is the thing: His case was tainted by racial evidence pressed upon the jury by the prosecutor.

Prominent Texans -- lawyers (including one who prosecuted him), a former governor, members of the clergy, civil libertarians -- are asking the district attorney, Patricia Lykos, to delay setting an execution date and to schedule a new sentencing hearing for Buck. "The State of Texas cannot condone any form of racial discrimination in the courtroom," these leaders wrote to Lykos. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."

The NAACP is among the national organizations involved in Buck's case. "We believe that racism is still rampant in how the death penalty is administered," said Steven Hawkins, an executive vice president of the NAACP and the organization's leading expert on capital punishment.

By the way, Buck is not looking to go home; he knows that he belongs behind bars for life. "He realizes he needs to do time for his crime," Black said. "He is incredibly sorry and remorseful."

Earlier coverage of Duane Buck's case begins at the link; also, it includes more on Quijano's TYC work.

Arrest Made in 1986 Morton Murder

Today's Austin American-Statesman reports, "Man arrested in 1986 Morton slaying has long criminal history."  It's written by Chuck Lindell and Patrick George.

A former carpet layer now working as a dishwasher in Bastrop was arrested Wednesday in the brutal 1986 beating death of Christine Morton, a Williamson County mother whose husband was wrongly convicted of her murder.

Mark Alan Norwood, 57, was arrested without incident at his Bastrop duplex, Williamson County Sheriff James Wilson said. Charged with capital murder, Norwood was being held at the Williamson County Jail on $750,000 bail.

Norwood also is a suspect in an unsolved Austin murder, the 1988 bludgeoning death of Debra Masters Baker in her home. Like Morton, Baker was repeatedly hit in the head with a blunt object as she lay in her bed.

And:

Michael Morton, freed Oct. 4 after spending almost 25 years in prison, has been living with his parents in Northeast Texas as he tries to rebuild his life. That's where lawyer John Raley reached him Wednesday to convey the news.

"He was quiet for a while as he absorbed it. He has known for some time that this day would come," Raley said. "He felt relief. He was happy. But this comes to him at the end of a long, twisted path, and it's still not over. This has cost him dearly."

Morton, his lawyers and Baker's family have been waiting for word of Norwood's arrest since July, when his DNA was linked to the slayings of both women.

Investigators interviewed Norwood in August and took a fresh DNA sample as inquiries proceeded - largely outside of public view - by law agencies in Travis and Williamson counties. The state attorney general's office also took the lead in the reinvestigation of the Morton killing.

"Suspect in Michael Morton Case Arrested," by Brandi Grissom at the Texas Tribune.

Norwood's DNA was identified in August when attorneys for Michael Morton won a court order forcing the Williamson County District Attorneys office to allow testing on the blue bandana found near the scene of Christine Morton's murder.

Morton was convicted of his wife's murder in 1987, and he was exonerated last month when DNA testing revealed Norwood's DNA mixed with Christine Morton's blood on the bandana.

And:

Houston lawyer John Raley and lawyers for the New York-based Innocence Project sought DNA testing on the bandana for six years. After a court ordered the testing last year, it excluded Morton. The DNA was entered into a national database and it matched DNA for Norwood that was gathered during his California arrest.

The AP filing is, "New suspect arrested in woman's 1986 slaying,"  It's by Will Weissert and Juan A. Lozano, via the Fort Worth Star-Telegram.

Michael Morton spent nearly a quarter century in prison for his wife's slaying before authorities acknowledged that they had the wrong man and set him free last month.

On Wednesday, a new suspect was arrested, linked by DNA to a bloody bandanna found near the Mortons' home in Williamson County.

A Bastrop man identified as Mark Alan Norwood, 57, faces a capital murder charge in the Aug. 13, 1986, slaying of Christine Morton, the Williamson County Sheriff's Department announced.

It's the latest twist in a case that includes a separate investigation of the man who prosecuted Michael Morton. Morton's attorneys say Ken Anderson, a former Williamson County district attorney, withheld evidence at Morton's trial that could have led police to the suspect decades earlier and prevented him from striking again.

Earlier coverage of Michael Morton's exoneration and subsequent investigations begins at the link.

North Carolina's Racial Justice Act Update

"NC prosecutors seek judge's removal from case," is Martha Waggoner's AP report via the News & Observer.

Prosecutors in the first case being heard under a North Carolina law that allows death row prisoners to challenge their sentences on the grounds of racial bias have filed a motion asking that a black judge be removed from presiding over the case.

Cumberland County prosecutors said in a motion filed Tuesday that they want Superior Court Judge Greg Weeks removed because he may be called as a witness in the case of Marcus Robinson, who's challenging his death sentence under the state's Racial Justice Act. Their motion doesn't mention the judge's ethnicity, but has angered some legal experts who believe race is the behind the move.

"It looks like they're trying to get rid of an African-American judge and have the case heard by someone who likely would not be African-American," said Duke University law professor James Coleman. "They're accused of manipulating the jury on the basis of race. It's ironic that they would do something that looks like they're trying to ... manipulate the judge who would hear the case. It's tone deaf. It's unbelievable to me."

The judge who hears the motion should require the prosecutors to say that they will call Weeks as a witness, not that they might, and identify the testimony they seek from him, Coleman said. Otherwise, attorneys can remove judges simply by saying they might be called as a witness, he said.

"Cumberland prosecutors want Judge Weeks off Racial Justice Act case," by Paul Woolverton for the Fayetteville Observer.

The prosecutors have subpoenaed Weeks to testify at a hearing next week. Weeks is fighting the effort. A hearing on the subpoena is scheduled for Thursday morning in Nash County Superior Court. Weeks asked for a judge outside of Cumberland County to handle the hearing.

Robinson's is one of the first cases to go forward under the Racial Justice Act, which provides condemned inmates a means to get off death row, though not out of prison, if they can prove racial bias led to their death sentences.

In letters dated Sept. 14 and Sept. 21, Assistant District Attorneys Cal Colyer and Rob Thompson told Weeks that he presided over murder cases that were included in a study of race and the death penalty in North Carolina. The statewide study found that in Cumberland County, anyone who murders a white person is more likely to be sentenced to death than someone who kills a non-white person. The study is a key piece of evidence that Robinson's lawyers are using to show a pattern of racial bias in Cumberland County courts.

The prosecutors say several other judges have been removed from trials involving the Racial Justice Act because they presided over cases that were included in the study and could have been called as witnesses.

And:

Lawyers for Robinson oppose the effort to take Weeks off the case. They say other judges were taken off Racial Justice Act cases because they previously had served as prosecutors, not because they were judges in capital cases.

In a news release issued Tuesday, Robinson's lawyers say the effort to subpoena Weeks and push him off the case appears to be racially motivated. Weeks is black.

"In my many years as an attorney, I have never seen a party use such a flimsy pretext to try to get rid of a judge," Duke University law professor James E. Coleman said in the statement. "There is a written record of what the prosecutors did in each of the cases in which their conduct is at issue. Calling the judge as a witness would add nothing to that record. And the idea that they may call the judge as a character witness is absurd; it seems designed only to create a bogus conflict for Judge Weeks."

"Prosecutors seek to remove black judge from Racial Justice Act case," by Bruce Mildwurf fir WRAL-TV.

Robinson's appeal is scheduled for next week, and Superior Court Judge Quentin Sumner will hear arguments in Nash County Thursday morning on whether Weeks should remain on the case.

Irving Joyner, a law professor at North Carolina Central University, who isn't connected to Robinson's case, said he believes the subpoena is unethical.

"That's just improper, and I think it's a violation of the rules of professional responsibility for any lawyer to engage in a scheme like that," Joyner said.

Almost all of the 157 inmates on North Carolina's death row have filed appeals under the 2-year-old Racial Justice Act. Winning an appeal under the law commutes a death sentence to one of life in prison without the possibility of parole.

Earlier coverage of North Carolina's Racial Justice Act begins at the link.  Thanks to Gerda Stein for distributing.

Prosecutorial Misconduct Issue at the Supreme Court

Yesterday, the Louisiana case Smith v. Cain received oral arguments at the Supreme Court.  The transcirpt is available in Adobe .pdf format.

"Justices Rebuke a New Orleans Prosecutor," is Adam Liptak's report in today's New York Times.

Donna R. Andrieu, an assistant district attorney in New Orleans, had the unenviable task at the Supreme Court on Tuesday of defending her office’s conduct in withholding evidence from a criminal defendant. She made the least of it.

Her halting and unfocused presentation elicited one incredulous question after another. The argument culminated in back-to-back rebukes from Justices Elena Kagan and Sonia Sotomayor.

Justice Kagan said she could not understand why the Orleans Parish District Attorney’s Office persisted in defending its conduct. “Did your office ever consider just confessing error in this case?” she asked.

Justice Sotomayor made a broader point about the office, which has repeatedly been found to have violated Brady v. Maryland, the 1963 Supreme Court decision that requires prosecutors to turn over favorable evidence to the defense.

“There have been serious accusations against the practices of your office, not yours in particular, but prior ones,” Justice Sotomayor said. “It is disconcerting to me that when I asked you the question directly, should this material have been turned over, you gave an absolute no.”

“That’s really troubling,” Justice Sotomayor added.

"Supreme Court seems ready to overturn La. murder conviction because of withheld statements," is the AP report via the Washington Post.

Incredulous Supreme Court justices on Tuesday repeatedly questioned why the New Orleans district attorney’s office never gave defense lawyers statements from the only witness in a murder trial that could have cast doubt on a death row inmate’s conviction of killing five people.

Justices were hearing an appeal from Juan Smith, who was convicted of five murders at a 1995 party. The only witness to identify Smith, however, gave inconsistent statements about whether he could recognize or identify Smith as one of the killers.

Prosecutors under former New Orleans district attorney Harry Connick never gave Smith’s lawyers the statements, which would have aided in his defense. Prosecutors are required to do this under Supreme Court precedent.

Several justices seemed surprised that Assistant District Attorney Donna Andrieu would even try to argue that the inconsistent statements would not have to be turned over under Brady.

The so-called Brady rights are named after the Supreme Court’s Brady v. Maryland case, which says prosecutors violate a defendant’s constitutional rights by not turning over evidence that could prove a person’s innocence.

“Surely it should have been turned over,” Justice Antonin Scalia said. “Why don’t you give that up?”

This is the second time in two terms that the Supreme Court has dealt with Brady violations in the New Orleans prosecutor’s office. The high court earlier this year overturned a $14 million judgment given to a former death row inmate who was convicted of murder after the same New Orleans office withheld evidence in his trial. Justice Ruth Bader Ginsburg, in a rare oral dissent, called the prosecutors’ actions “gross” and “deliberately indifferent.”

New Orleans prosecutors knew that this case was going to be heard by the Supreme Court, Justice Elena Kagan said.

“Did your office ever consider just confessing error in this case?” Kagan asked.

Lyle Denniston posts, "Argument recap: Disaster at the lectern," at SCOTUSblog.  Here's the beginned of his detailed account:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case.   That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles.   It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).

The case is the second before the Court in the past year to raise deep questions about the way the Orleans Parish office has prosecuted criminal cases, over a good many years..  And, near the end of Andrieu’s troubled argument, she was reminded of that history by Justice Sonia Sotomayor, who seemed to be wondering whether the D.A.’s staff there would ever learn.  In both this Term’s case and last, the issue was whether the prosecutors had failed in their constitutional duty, under Brady v. Maryland (1963), to turn over evidence that could help lawyers defend their clients.

Today's New Orleans Times-Picayune reports, "U.S. Supreme Court justices question handling of evidence by Orleans Parish prosecutors."  It's written by Bruce Alpert.

Skeptical Supreme Court justices ridiculed arguments Tuesday by the Orleans Parish District Attorney's Office that a 1995 murder conviction wouldn't have been affected by disclosure that the star eyewitness earlier told police he could not identify any of the assailants. Attorneys for Juan Smith, convicted of five murders during a party on Roman Street in 1995, are asking the Supreme Court to order a new trial on grounds that the Orleans district attorney's office disregarded a 1963 Supreme Court ruling that prosecutors can't withhold evidence that could be favorable to the defendant.

The tough questioning of Assistant District Attorney Brady v. Maryland, capital punishment, death penalty, Harry Connick, Juan Smith, Louisiana, National District Attorneys Association, Orleans Parish District Attorney, Orleans Public Defenders, prosecutorial misconduct, SCOTUSblog, Smith v. Cain, Supreme Court seemed to indicate that justices are leaning toward granting Smith's request.

Andrieu conceded that the inconsistent statements of the key government witness should have been turned over to the defense, but argued the disclosure wouldn't have made a difference.

"How can you possibly know?" asked Justice Ruth Bader Ginsburg during hour-long oral arguments. "The jury is supposed to decide on the credibility of this witness."

Earlier coverage of Smith v. Cain begins at the link.  Related posts are in the prosecutorial misconduct index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Additional Commentary on Hank Skinner's Case

"Perry should ensure Skinner evidence is tested," is the title of a San Antonio Express-News editorial.

The Texas Legislature this year passed, and Gov. Perry signed into a law, a measure making it easier for convicted individuals to request DNA testing that might prove their innocence. Perry should halt the Skinner execution until the evidence has been  tested.

DNA testing has exonerated more than three dozen Texans accused of serious crimes over the last decade. The latest case occurred last month, when the Texas Court of Criminal Appeals cleared Michael Morton of the 1986 murder of his wife. Untested evidence in the case identified the actual perpetrator as a suspect in another murder case, but not before Morton spent 25 years behind bars.

Morton is eligible for restitution from the state — $80,000 for each year of confinement. If Skinner is put to death tomorrow, there's no opportunity to right a terrible wrong.

It is unconscionable that Texas would put someone to death when evidence that might prove to be exculpatory sits untested. Yet that almost happened to Skinner in March 2010. Then, Perry refused to grant a reprieve, but the U.S. Supreme Court intervened to halt the  execution.

In the subsequent 20 months, the state has had ample time to test the evidence in the Skinner case. Instead, it has continued a costly and obscene legal battle to fight testing that might confirm Skinner's guilt or might prevent Texas from making a horrific, irreversible  mistake.

The Texas Court of Criminal Appeals has saved Perry from having to issue a reprieve. But now that the court has acted and with Perry under the national scrutiny of a presidential campaign, the governor should ensure that the state follows the law and finally submits the evidence in the Skinner case for forensic testing.

Mark Osler posts, "Texas prosecutors won't stop rush to execution," at CNN. Osler is a professor of law at the University of St. Thomas Law School and a former federal prosecutor.

As the nation and the world's attention turned to the impending execution of Hank Skinner in Texas before a late stay by a Texas court, one question seemed paramount: "Why the rush?" The answer to that question is buried deep inside the psychology of prosecutors and the culture of Texas.

And:

Even the foreperson of the convicting jury has now stepped forward to ask that the tests be conducted. However, the prosecutors have steadfastly refused to allow such testing, and Skinner's attorneys have failed (thus far) to get a court order requiring those tests.

The prosecutors have been adamant about an immediate execution, precluding further tests, and it is this fact that many people find baffling. As a former prosecutor who then spent 10 years training future prosecutors in Texas, I am not surprised by this development. Quite simply, the prosecutors are committed to their conviction in a way that should surprise no one.

To a prosecutor, convicting dangerous people and incapacitating them is a life's work, nothing less than their duty to a community. Prosecutors have wide discretion in choosing whom to charge with capital murder and whether to seek the death penalty for the person they have charged.

Once they have chosen that path, though, it is a somber commitment: It is nothing less than a public pledge to kill another person, and that is the kind of thing that is not done lightly. There is a deep emotional component to it, and that emotional commitment cannot be ignored, especially when it no longer matches the trajectory of justice.

Academics such as Susan Bandes and Ellen Yaroshefsky have studied the emotional overcommitment of prosecutors, and explain it in part by looking to peer groups. Throughout the post-conviction process, prosecutors are usually surrounded by people (such as supervisors and investigators) who share their commitment to a conviction. At the same time, ethical rules keep them away from the person with the highest stake in the game, the defendant, who may want to challenge the outcome.

"The Texas D.A.s Who Denied Hank Skinner Justice," is David Protess's latest writing on the case at Huffington Post.  Here's the beginning of this must-read:

The saga of Hank Skinner's fight for DNA testing, and for his life, reads like a Russian novel. Yesterday's chapter concluded with a stay of execution by the Texas Court of Criminal Appeals. The Texas high court agreed to decide whether a new state DNA law applies to Skinner's case -- or if he should be executed without the tests.

The stay is temporary. This war is far from over.

So how did we get to this point? Why has it taken more than a decade with still no outcome in sight?

The public controversy started, of all places, on Nancy Grace in June of 2000, and its resolution has been thwarted by four Texas Republican District Attorneys.

Earlier coverage of Hank Skinner's case begins at the link.

Michael Morton Case Update

Today's Austin American-Statesman reports, "Depositions shed light on Morton prosecution."  It's by Chuck Lindell.

Lawyers for Michael Morton, recently freed from a life sentence for a murder he did not commit, have accused former Williamson County District Attorney Ken Anderson of deliberately hiding evidence to secure a guilty verdict 25 years ago.

Newly released court records, including transcripts of sworn testimony provided last month by Anderson's trial assistant, show how Morton's legal team intends to bolster that accusation.

Mike Davis, a Round Rock lawyer who helped Anderson prosecute Morton for the murder of his wife, Christine, described his former boss as a "control guy" — a detail-oriented district attorney who took part in every facet of a major case, from the investigation by law enforcement to the strategy used at trial.

"Any murder case was Ken Anderson's baby," Davis said in his Oct. 29 deposition under questioning by Morton lawyer Gerry Goldstein.

Anderson, now a state district judge in Georgetown, would have determined what information had to be turned over to Morton's lawyers before trial, Davis said, adding that he was "shocked" to discover this year that certain evidence had not been provided.

Davis said he was particularly troubled to learn that Morton's lawyers did not receive evidence indicating that there was a witness to Christine Morton's murder — her 3-year-old son, Eric, who described the attacker as a monster who was not his father.

That information, contained in a taped and transcribed phone conversation between Christine Morton's mother and the lead sheriff's investigator, Sgt. Don Wood, was provided to Morton's lawyers in 2008 as part of a request under Texas open records laws. The sheriff's office and district attorney's office had fought the request.

Before Morton's trial, defense lawyers made the standard request for all evidence favorable to their client, but Anderson should have provided the conversation transcript without being asked, Davis said. Prosecutors are legally required to disclose evidence that could help a defendant, he said.

"Former Assistant DA Deflects Blame In Morton Case," is the title of Brandi Grissom's Texas Tribune post.

In a deposition made public Tuesday, Mike Davis, a former assistant district attorney in Williamson County, pointed the finger for any alleged wrongdoing that led to the prosecution of Michael Morton directly at his former boss, Ken Anderson.

Davis provided testimony Oct. 29 as part of an ongoing investigation by defense lawyers into whether Williamson County officials intentionally withheld information that could have prevented Morton's 1987 murder conviction and life sentence in the killing of his wife, Christine Morton. According to the transcript, a representative of the State Bar of Texas also attended the Davis deposition. That agency is also investigating allegations of prosecutorial misconduct in the Morton case.

And:

The transcript and other information, Davis said, should have been turned over to the judge and to Morton's attorneys. When he learned about the DNA evidence that exonerated Morton, Davis said he went to Anderson's office and confronted him about whether he had concealed the transcript outlining details of the attack young Eric Morton witnessed. "And he says, 'We turned it over,'" Davis said.

Davis also described a scene that unfolded in the Williamson County courthouse on the day that the Texas Court of Criminal Appeals exonerated Morton. Davis was in Anderson's courtroom, and he said current District Attorney John Bradley arrived and insisted on a meeting with Davis and Anderson in a back room. Anderson wanted to meet with Bradley alone, Davis said, and the two went into a separate room. "And Judge Anderson and Mr. Bradley had a discussion which was pretty loud," Davis said. "I could hear raised voices, but I couldn't tell what they were saying."

Davis contended he had no knowledge that anything was withheld from Morton's lawyers, and that he was disturbed to learn that information was allegedly supressed. "It troubles me greatly," Davis said.

The transcript of Anderson's deposition, which was conducted last week, is expected to be released soon.

The Tribune has also published the transcripts of the Davis deposition, the deposition of former Williamson County Deputy Sheriff Donald Wood, and a statement by Dr. Roberto Bayardo.

Earlier coverage of Michael Morton's exoneration begins at the link. 

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Coverage of the Phan Case in Georgia

"Court considers delayed death penalty case," is the title of Andria Simmons' Atlanta Journal-Constitution report.

The state's highest court must decide whether a six-year delay in bringing a Gwinnett County death penalty defendant to trial violated Khanh Din Phan's right to a speedy trial.

The Supreme Court of Georgia heard arguments Monday from defense attorney Christopher W. Adams. He said Superior Court Judge Ronnie K. Batchelor should have dismissed all charges against Phan because a "systemic breakdown" in the state's public defender system has left it chronically underfunded.

Khanh Dinh Phan is charged with multiple counts of murder, aggravated assault, aggravated battery and possession of a firearm during the commission of a felony in the Dec. 29, 2004 execution-style murders of Hung Thai, 37 and his 2-year-old son, Hugh Thai, over a gambling debt. He is also accused of shooting Hoangoah Ta, Thai's wife, who survived and identified him as the killer.

Adams said he went for years without getting paid for representing Phan and he still has not received all the money he needs to hire experts and travel with an investigator, translator and his co-counsel, Bruce Harvey, to Phan's home country of Vietnam to gather evidence.

Adams also argued that the trial judge should not have decided to remove him and Harvey from the case and replace them state Capital Defender's Office employees. Doing so violates Phan's right to effective counsel, Adams said.

The AP report is, "Ga. Supreme Court considers speedy trial claim," by Greg Bluestein.  It's via the Columbus Ledger-Enquirer.

An accused killer has spent more than six years in jail awaiting a trial, his case becoming a flashpoint for the state's troubled public defender system. On Monday, the Georgia Supreme Court heard arguments over whether the system broke down or the defense attorneys simply used delay tactics.

Khahn Dinh Phan has been awaiting trial since March 2005 on charges of killing a Vietnamese man and his 2-year-old son. His attorneys, Christopher Adams and Bruce Harvey, asked the judges to dismiss the charges, arguing that he has not had a speedy trial. Prosecutors blamed the lawyers for the repeated delays.

"All of the delays are attributed not to the defendant but to the defendant's counsel," said Gwinnett County District Attorney Danny Porter.

The court isn't expected to rule for weeks, but several of the justices indicated they were upset by the slow pace of the case. Chief Justice Carole Hunstein pointedly asked Adams several times when the case would go to trial, and seemed frustrated when told it would take at least a year.

And:

The case became a focal point in the funding debate for the public defender system when his attorneys said they weren't properly paid.

A Gwinnett County judge denied Phan's motion to dismiss his trial in 2009, but a divided Georgia Supreme Court threw out the ruling and instructed the lower court to determine if a speedy trial violation had occurred. That judge found that Phan's rights had not been violated, and said his attorneys should be replaced by state lawyers.

The attorneys again brought the case to the Georgia Supreme Court, arguing that Harvey was never compensated for his time and that Adams only got partial payments. They also contended the state denied them funding to hire expert witnesses and money to travel to Vietnam to gather facts about their client and interview the sole eyewitness to the shooting.

Earlier coverage of the case and Georgia indigent defense issues begins at the link.

News Coverage & Analysis of the Buck Cert Denial

"Buck case involved a terrible crime but a flawed capital sentencing process," is the editorial in today's Fort Worth Star-Telegram.

The U.S. Supreme Court delayed the execution of Texas Death Row inmate Duane Buck on Sept. 15 to review his request for a new punishment hearing, but on Monday the justices announced they wouldn't look further into his constitutional claims.

Two separate opinions showed what took so long.

It appears the justices were wrestling over which side injected racially tinged testimony at Buck's sentencing and whether the answer to that question essentially sealed his fate.

But the court seems to have missed the point: Race shouldn't sway a jury's decision about whether a convicted killer receives the death penalty, and the possibility that it might have in Buck's case justifies a new hearing.

This isn't a matter of sympathy but of fairness.

And:

Buck's crime was terrible. But his sentencing was flawed -- a former attorney general even said so. If the death penalty is to have credibility, procedures must be as fair and error-free as possible. A Supreme Court mandate isn't required for Texas to correct this mistake.

Andrew Cohen posts, "In The End, Supreme Court Says No to Duane Buck," at the Atlantic.

The reason there is such a gap between the realities of capital punishment in America and the media coverage of those realities isn't hard to figure or explain. The nation's attention span is notoriously scattered and short. It takes fidelity to the long view -- and a great deal of patience and attention to detail -- to grasp the many ways in which the modern death penalty "experiment" has failed so many people on so many different levels for so many reasons.

An individual story -- like the saga of Troy Davis which ended in September -- occasionally floods the national conscience. Millions of people get involved, on either side of the debate, and the scholars, advocates and tribunes who inhabit the world of capital punishment get to pronounce their points to an interested audience. But then that audience moves on to the next thing (the media either leading or following the hordes) without ever staying around long enough to bring meaningful change to state death penalty regimes.

And:

Here is the piece I wrote in September about how Texas officials, including Gov. Rick Perry, had blown off Buck's request for equal protection under law. And here is the piece I wrote about him shortly thereafter when the Supreme Court, to the surprise of many, temporarily stayed his execution. Now that stay is over, it won't be long before Buck gets a new execution date. If, as a news consumer, you tuned in only to September's news about Buck you might think that justice was done in the case -- after all, the Supreme Court halted the execution, didn't it? But if you still think that today you would be wrong.

"Supreme Court Denies Duane Buck Appeal," by Brandi Grissom for the Texas Tribune.

The high court stayed Buck's execution in September to consider his appeal. His lawyers argued that because psychologist Dr. Walter Quijano told jurors that the fact Buck is black meant he was more likely to be violent in the future, he ought to be granted a new trial without race-related testimony.

The same psychologist gave similar testimony in six other death row cases. And in 2000, then-Attorney General John Cornyn admitted the state erred in allowing the race-related testimony in Buck's case and the others. In each case, except Buck's, the defendants were given new trials to determine their sentences. They all were re-sentenced to the death penalty.

"Supreme Court refuse to review role race played in Texas sentence," is the AP filing via the Washington Post.

Justice Samuel Alito said that might have been enough for a reversal if Dr. Walter Quijano had been a prosecution witness.

“But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness,” said Alito, who was joined by Justices Antonin Scalia and Stephen Breyer in his statement.

Justices Sonia Sotomayor and Elena Kagan said they wanted the court to hear the appeal, saying the death sentence was “marred by racial overtones and a record compromised by misleading remarks and omissions.”

“Because our criminal justice system should not tolerate either circumstance — especially in a capital case — I dissent and would vote to grant the petition,” Sotomayor said.

"Supreme Court Declines Duane Buck Death Row Case," by Nina Totenberg for NPR.

In 1995, Buck, who is African-American, was convicted of killing two people and shooting a third. During the sentencing phase of his trial, psychologist Walter Quijano was called by the defense. Although Quijano testified that Buck would not pose a continuing threat to society if incarcerated, he also testified that blacks and Hispanics are statistically more likely than whites to commit future crimes.

When the prosecutor cross-examined Quijano, the psychologist testified that being black "increases the future dangerousness for various complicated reasons." Buck was ultimately sentenced to death by lethal injection.

"Supreme Court Denies Cert in Capital Case with ‘Racial Overtones’; Dueling Opinions Issued," at ABA Journal by Debra Cassens Weiss.

The Christian Science Monitor has "Was race a factor in Texas death sentence? Supreme Court declines case," by Warren Richey.

"Race-Tainted Death Sentence: Appeal Denied," by Jenée Desmond-Harris at the Root.

Mike Sacks writes, "Supreme Court Punts Death Penalty Case: Sotomayor, Alito Square Off On Decision Not To Hear Argument," at Huffington Post.

The Statement on Denial of Cert by Justice Alito and the Dissent by Justice Sotomayor are available in Adobe .pdf format.

Earlier coverage of Duane Buck's case begins with yesterday's post.

Community Leaders Call on DA to Address Buck Sentence

The letter from community leaders to Harris County District Attorney Pat Lykos is available in Adobe .pdf format.  Attorneys for Duane Buck issued a news release announcing the letter, "More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck."

Prominent individuals from Texas and across the country are calling on Harris County District Attorney Patricia Lykos to remedy the sentence in a death penalty case involving the government’s reliance on the defendant’s race at sentencing. Duane Buck was scheduled to be executed on September 15, 2011, when the U.S. Supreme Court intervened. Today, the Court denied Mr. Buck’s petition for writ of certiorari.

At Mr. Buck’s capital murder trial in 1997, the State relied upon evidence that African-Americans are more likely to be dangerous as a basis for asking his jury to sentence him to death. District Attorney Lykos now has the discretion to remedy this error.
 
Prominent Texans calling for District Attorney Lykos to provide a remedy include seven members of the Texas Legislature; former Texas Governor Mark White; former Bexar County District Attorney Sam Millsap and Harris County Assistant District Attorney Linda Geffin (who served as a prosecutor in Mr. Buck’s case); seven Past Presidents of the Harris County Criminal Lawyers Association and current President Earl Musick; President of the Texas NAACP Gary Bledsoe; Archbishop Joseph A. Fiorenza of the Galveston-Houston Archdiocese; Pastor James Nash of Houston Ministers Against Crime; and Southwest Regional Director of the Anti-Defamation League Martin B. Cominsky.
 
In a letter delivered to District Attorney Lykos on September 28, 2011, the signatories wrote: “We write to you today, as elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor, and concerned citizens dedicated to protecting the integrity of the criminal justice system, to request that you refrain from seeking an execution date in Duane Buck’s case until the parties and courts have been given adequate opportunity and time to address the troubling issues in Mr. Buck’s case. We believe that no one should be executed whose death sentence was based on racially-biased evidence.”
 
Other distinguished signatories include John Payton, Director-Counsel of NAACP Legal Defense & Educational Fund, Inc.; Wade Henderson, President and CEO of The Leadership Conference on Civil and Human Rights; Deborah Lauter, National Civil Rights Director of the Anti-Defamation League; and past American Bar Association Presidents Philip Anderson, William Ide, Carolyn Lamm, and Roberta Ramo.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was shot but survived her wound. Ms. Taylor is also a signatory to the attached letter. She has forgiven Mr. Buck and does not wish to see him executed.
 
During Mr. Buck’s trial, the prosecutor relied on evidence from psychologist Walter Quijano that being an African-American increased the likelihood one would be dangerous in the future. In its closing argument, the government vouched for the credibility of Dr. Quijano’s opinion and urged the jury to rely on it to find that Mr. Buck would be dangerous. The jury found him to be a future danger and he was sentenced to death.  As Justice Sotomayor noted in her dissent from the denial of certiorari, “the prosecution invited the jury to consider race as a factor in sentencing.”
 
On June 9, 2000, while Mr. Buck’s case was pending on appeal, then-Attorney General of Texas John Cornyn issued a press release acknowledging error in the cases of six individuals whose death sentences had been unconstitutionally based on the government’s reliance on race as a factor in sentencing. The Attorney General identified Mr. Buck’s case as one of those six cases. He further stated that Texas would not contest federal appeals in those cases, and stated that if the attorneys for the identified defendants raised claims challenging the government’s reliance on race at sentencing, the Attorney General would waive all procedural defenses available to it.
 
Despite this concession, Mr. Buck is the only defendant of the six identified by Mr. Cornyn who has not been granted a new sentencing trial free from the government’s reliance on his race as a basis for requesting a death sentence.
 
“The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary,” the letter to District Attorney Lykos reads. “Refraining from setting an execution date for Mr. Buck until the courts have a meaningful opportunity to address the fundamental injustice in his case will help restore public confidence in the criminal justice system.”

Earlier coverage of the Supreme Court's denial of Buck's request for  a review of his case is at the link and begins earlier coverage of his case.  In the next post, I'll link to extensive news coverage of the Court's action.

CCA Stays Hank Skinner Execution

The CCA order in Skinner v. Texas is available in Adobe .pdf format.

Rob Owen, an attorney for Hank Skinner, issued the follwoing statement in response to the CCA stay:

"The Court of Criminal Appeals with its decision today, has ensured that Mr. Skinner's request for DNA testing will receive the thorough and serious consideration it deserves. We are grateful for the Court's action and look forward to the opportunity to make Mr. Skinner's case for DNA testing in that forum."

The AP report, "Texas court puts off execution due to legal change," by Michael Graczyk is via the Fort Worth Star-Telegram.

Texas' highest criminal court gave a reprieve Monday to a convicted murderer who had been scheduled to be executed this week, saying it needs time to review changes to a state law that his attorneys contend clear the way for new DNA testing in his case.

Henry Watkins Skinner, 49, was scheduled to die on Wednesday for the New Year's Eve, 1993 slayings of his girlfriend and her two adult sons at their home in Pampa, a Texas Panhandle town about 55 miles northeast of Amarillo.

"We find that it would be prudent for this court to take the time to fully review the changes in the statute as they pertain to this case," the state's Court of Criminal Appeals said in a four-paragraph ruling.

Skinner, his legal team and capital punishment opponents had insisted prosecutors' opposition to additional DNA testing could lead to the execution of an innocent man. Skinner would have been the 13th inmate given lethal injection this year in Texas, which is the nation's busiest death penalty state.

Allan Turner posts, "Skinner execution on hold for review," at the Houston Chronicle.

In a brief ruling, court justices noted that Texas laws governing DNA testing of evidence have changed, but that the modified law never has been applied to Skinner's case.

"Because the DNA statute has changed and because some of those changes were because of this case, we find that it would be prudent for this court to take time to fully review the changes in the statute as they pertain to this case," the judges wrote.

Skinner, a one-time paralegal, was sentenced to die for the 1993 New Years Eve murder of his girlfriend and her two adult sons.

The petition for a stay was filed late last week after a state district court in Pampa denied his latest request to have items tested.

Earlier today, Skinner's lawyers petitioned Gov. Rick Perry to grant a 30-day stay so that the DNA testing could take place.

Skinner, 49, consistently has maintained that he was incapacitated by alcohol and codeine at the time of the killings. For more than a decade, he has sought DNA testing of bloody clothing found at the scene, knives, rape kit evidence and other items. Results of DNA tests on other items have been mixed.

In March 2010, the U. S. Supreme Court stayed Skinner's execution one hour before he was to be put to death in order to consider reviewing case. The high court ultimately ruled that Skinner could pursue DNA testing through a civil rights case.

"Court of Criminal Appeals Grants Hank Skinner Stay," by Brandi Grissom for the Texas Tribune.

The court in its order today said it wanted time to consider Skinner's request for DNA testing in light of the changes to post-conviction DNA testing law that legislators approved during the legislative session this year.

"Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case," the court's order states.

Texas first adopted a post-conviction DNA testing law in 2001. The law has been changed three times since then, each time loosening restrictions on access to the tests. 

The appeals court had previously denied Skinner's requests for testing, citing provisions in the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant. Lawmakers repealed that part of the law this year.

"Texas court stays Wednesday execution as lawyers seek DNA tests," by Ashley Hayes and Bill Mears at CNN.

Skinner, now 49, has strongly denied any involvement in the crime and claims that the DNA analysis of untested evidence will not only show him innocent but help determine the real killer. He came within 45 minutes of execution in March 2010 before the U.S. Supreme Court stepped in and handed him a legal reprieve.

As another execution date loomed, his supporters ratcheted up the pressure on Texas officials to grant his request for DNA testing.

"Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas's criminal justice system," former Texas Gov. Mark White and 16 other current and former Texas lawmakers, prosecutors and judges wrote in an October 27 letter to Gov. Rick Perry, Texas Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer.

Owen requested a 30-day reprieve from Perry's office Monday afternoon, shortly before the appeals court issued its ruling, arguing that "substantial new evidence" has come to light since his trial to support Skinner's claim of innocence.

"Physical evidence from the crime scene, witness accounts and expert testimony all demonstrate that Mr. Skinner was so severely impaired at the time of the murders as a result of his extreme intoxication from drugs and alcohol that he would have lacked the physical and mental coordination to perform even simple tasks, let alone commit these three murders," Owen wrote. DNA tests "could resolve once and for all longstanding and troubling questions about the reliability of the verdict in his case," he added.

And in a letter to the Dallas Morning News published Sunday, the foreman of the jury that sentenced Skinner to death urged his execution be stayed "until all of the uncertainty is resolved."

"Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested," the foreman, Danny Stewart, wrote. "Either the tests confirm Skinner's guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside."

"Texas court postpones execution pending DNA appeal," by Molly Hennessy-Fiske for the Los Angeles Times.

The Texas Court of Criminal Appeals on Monday delayed the scheduled Wednesday execution of  Henry "Hank" Skinner, 49, while it examines how changes in state law concerning DNA test requests apply to his case.

And:

Prosecutors have argued against the new tests, saying courts have already ruled against Skinner and that he is stalling.

Last week, Texas Judge Steven R. Emmert was the latest to deny Skinner's request, without explaining why.

In the wake of that ruling, Skinner's supporters gathered more than 120,000 signatures on an online petition urging Gov. Rick Perry to stay the execution to allow for the DNA testing, and on Monday, Skinner's lawyers again appealed to Perry to stay the execution. Skinner also has an appeal pending in federal court.

Earlier coverage of Hank Skinner's case begins at the link.

The Texas Legislature's 2011 changes to post-conviction access to DNA testing were contained in House Bill 1573, authored by Rep. Pete Gallego and sponsored in the Senate by Sen. John Carona.  Governor Perry signed the measure into law.