The StandDown Texas Project

More Reviews of Raymond Bonner's Book; Upcoming Author Events

Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong, is getting national attention in book reviews, and his author events continue with stops in Washington, DC and Austin.

Tomorrow, Bonner will appear at Washington, DC's celebrated Politics & Prose, where many Book TV author events are taped for later airing.  On March 7, Bonner is at Austin's Book People.  Both bookstores are happy to send signed books to those who cannot make it to the store.  Bonner also has a list of additional author events at his website.

On to the reviews.  Jonathan Yardley posts a Washington Post book review.

Bonner, who reported on the Elmore case while working as a staff reporter for the New York Times, is a lawyer as well as a journalist and brings professional expertise to the book. He also brings passionate feelings about the proper roles of prosectors and defense attorneys. He came to admire a New Yorker named J. Christopher Jensen, a corporate lawyer “who felt a need to do something more meaningful than help rich people get richer” and helped defend many accused persons in South Carolina. “Jensen never asked himself whether Elmore was guilty or innocent,” Bonner writes. “It was not a question he had to address. For Jensen, like many criminal defense lawyers, in defending a criminal suspect he is defending the integrity of the judicial system and the Constitution, as well as the individual. By demanding that a guilty person have a fair trial, defense lawyers are ensuring that an innocent person will as well.”

As for prosecutors, “a bedrock principle of the American judicial system” is “the duty of the prosecution . . . not to obtain a conviction but to do justice.” Later Bonner writes: “If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win in trial court. Appellate lawyers want to win on appeal. Justice often gets lost.” From the first prosecutor who went after Elmore to the last, every single one violated that basic rule. The next time you read about justice in America, think twice.

A Boston Globe book review is by Ethan Gilsdorf.

For those seeking more ammunition for their battery of anti-death-penalty arguments, look no further. “Anatomy of Injustice: A Murder Case Gone Wrong’’ is Raymond Bonner’s accomplished and meticulously researched investigation into a murder case that, as the clumsy title suggests, was egregiously bungled.

In 1982, in Greenwood, S.C., Edward Lee Elmore, 23, is accused of killing an elderly widow.

Elmore had occasionally done odd jobs for the victim. When her body is found in her closet, stabbed dozens of times and possibly raped, Elmore is fingered as the prime suspect, despite a notable lack of physical evidence linking him to the crime.

Wilbert Rideau writes the review, "Presumed guilty," for the Financial Times.

America claims to have the best criminal justice system in the world, but in Anatomy of Injustice: A Murder Case Gone Wrong, Raymond Bonner reveals how flawed it is for the indigent defendant, especially if he is from a minority or is mentally retarded.

Edward Lee Elmore is both – an African American with an IQ of 61 who was 14 when he dropped out of school in the fifth grade, still reading at second-grade level. Unable to do simple mathematics or tell the time, he earned his living working as a handyman in the affluent white neighbourhoods of Greenwood, South Carolina.

Rideau is the author of the acclaimed memoir, In the Place of Justice: A Story of Punishment and Deliverance, published in 2010 and noted here.

"On death row, by mistake (or worse)," is the Richmond Times-Dispatch review witten by Doug Childers.

"In many ways, Elmore's is a garden-variety death penalty case: a young black male of limited intelligence convicted of murdering a white person after a trial in which his lawyers' performance was so poor that it could barely be called a defense," writes Bonner, a former investigative reporter and foreign correspondent for The New York Times and a staff writer at The New Yorker.

But it's also exceptional, he adds, because it "raises nearly all the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, 'snitch' testimony, DNA testing, a claim of innocence."

As Bonner demonstrates, many of those issues would not have come to light if it hadn't been for the work of a lawyer named Diana Holt, who learned about Elmore's case while she was a law student working for the South Carolina Death Penalty Resource Center.

Holt researched and advocated for Elmore's cause for more than 16 years. The fact that Elmore eventually had his death sentence vacated is, in part, a testament to her doggedness.

Earlier coverage of Bonner's latest book begins at the link.

Maryland Legal Scholars Demand Death Penalty Repeal

That's the title of a Baltimore Sun report, subtitled, "State's requirements create arbitrary and expensive system, attorneys say."  It's written by Steve Kilar.

More than three dozen legal scholars and attorneys — including former Gov. Harry R. Hughes and two former Maryland attorneys general, J. Joseph Curran Jr. and Stephen H. Sachs — are sending a letter and report to members of the General Assembly urging the repeal of the state's death penalty.

"There's a lot of misconception about Maryland's law" among legislators and the general public, said Jane Henderson, executive director of Maryland Citizens Against State Executions, which organized the lobbying effort. The group was prompted to release the report, she said, because "many people think that Maryland had shut down its death penalty."

The attorneys argue that Maryland's death penalty law, enacted by the General Assembly in 2009, is still too arbitrary and costly to be worthwhile. Under the law, prosecutors can seek death only in cases where there is biological or video evidence tying the defendant to the murder or a videotaped confession.

Those evidentiary limits are artificial, Henderson said.

"It's a really odd way of limiting the death penalty," said Henderson. Instead of focusing on the nature of the crime and remorse of the criminal — the "worst of the worst" offenders — prosecutors are deciding to pursue death on evidentiary issues, she said.

The current death penalty law is also costly, she said, because it adds "a second phase to the sentencing trial," according to the report, which cites a 2008 Abell Foundation study that found "execution cost almost three times more than a non-death sentence — including the cost of long-term incarceration in life sentences."

Wednesday marks the fifth day of an Anne Arundel County jury's death penalty deliberations in the case against Lee Edward "Shy" Stephens, found guilty this month of stabbing a correctional officer to death in 2006 at a state prison in Jessup that has since closed.

If the jurors decide that Stephens — who is serving a sentence of life plus 15 years for a 1997 murder —should be put to death, he would be the first person to receive a capital sentence under Maryland's more restrictive death sentence law.

Earlier coverage from Maryland begins at the link.

From Philadelphia

Today's Philadelphia Inquirer reports, "Phila. courts increase pay for capital defense."  It's written by Joseph A. Slobodzian.

Moving to reduce a shortage of lawyers qualified and willing to take court appointments to defend the poor in death-penalty cases, the Philadelphia courts have dramatically increased lawyers' fees and temporarily suspended the work of a new committee that screens capital-case attorneys.

An order by Common Pleas Court Judge John W. Herron, administrative judge of the trial division, increases the flat rate paid to capital-case counsel from the current $2,000 to $10,000 for trial lawyers and the fee paid to penalty-phase cocounsel from $1,700 to $7,500.

At the same time, Herron suspended the work of a new screening committee for the rest of the year. Herron noted that the committee has approved only 12 Philadelphia defense lawyers after reviewing their applications.

Last year, an Inquirer report found that more than 125 capital trials in Pennsylvania - 69 from Philadelphia - were reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

Lawyers quoted in the story cited low pay for court-appointed lawyers as a major factor.

While not criticizing the so-called HAS (Homicide Appointment System) Committee, Herron wrote Monday that he had to respond to a growing backlog of homicide cases due to a lack of qualified lawyers for court appointments.

Earlier coverage of Philadelphia capital indigent defense issues begins at the link.

Ninth Circuit Criticizes Arizona's Lethal Injection Protocol

"Court gives Arizona warning about execution protocol,"is the AP report via the Arizona Republic.  The ruling in Towery, Moormann v. Brewer is available in Adobe .pdf format.  Here's an extended excerpt from the AP article:

A federal appeals court panel on Tuesday issued a strong warning to Arizona officials who have continuously violated and changed their own written protocol for executing state death-row inmates.

In its ruling on Tuesday, the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco turned down a request to delay two upcoming executions -- that of Robert Henry Moormann on Wednesday and of Robert Charles Towery eight days later on March 8.

While the judges declined to delay the executions, they wrote that Arizona has forced the court "to engage in serious constitutional questions and complicated factual issues in the waning hours before executions."

"This approach cannot continue," the panel wrote. "We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the admonition has a breaking point."

And unless Arizona officials make permanent changes, the judges wrote that the court might have to start monitoring each individual execution in the state to make sure the law is followed.

The ruling comes after the state Department of Corrections unexpectedly changed its execution protocol last month, one of multiple unannounced changes in recent years.

Defense attorneys argued to the court that the new protocol loosened requirements for those who inject inmates with the lethal drugs and gave far too much discretion to corrections Director Charles Ryan.

According to the new protocol, Ryan can decide with which and how many drugs to execute inmates and must give the inmates' one week's notice of what he decided.

But on Monday, less than 48 hours before Moormann's scheduled Wednesday execution, corrections staff realized that one of the drugs they had planned to use expired last month and is no longer available.

They then notified Moormann and his attorneys that he would be executed with just one drug, pentobarbital.

The late notice violates the department's new written execution protocol.

ASU Cronkite News posts, "Federal court panels refuse to block two looming Arizona executions," by Dustin Volz.

Separate panels of the 9th U.S. Circuit Court of Appeals released a flurry of opinions this week rejecting appeals by death-row inmates Robert Henry Moormann and Robert Charles Towery.

Moormann, 63, is currently scheduled to be executed at 10 a.m. Wednesday for the 1984 murder and dismemberment of his adoptive mother while on a three-day furlough from prison.

Towery, 47, is scheduled to be put to death by lethal injection March 8 for the 1991 robbery and murder of a Valley man.

Their attorneys were pursuing last-minute appeals Tuesday night, including appeals to the full 9th Circuit court and, possibly for Moormann, an emergency stay of execution appeal to the U.S. Supreme Court.

The latest AP update on the Moormann case is, "Arizona death-row inmate set to be executed today."

If Moormann's execution proceeds, it will be the first time the state executes an inmate using a one-drug method, as opposed to its long-standing three-drug protocol. The switch was made after corrections officials realized Monday that one of the three drugs had expired.

Arizona would join Ohio, Texas and several other states that last year made the switch to pentobarbital after the only U.S. manufacturer of the execution drug sodium thiopental said it would discontinue production.

In July, the only U.S.-licensed manufacturer of pentobarbital announced it would put the drug off-limits for executions. And a company that bought the pentobarbital line in December is required to also keep it from use by prisons for executions.

Once states use up their current supplies of pentobarbital, executions could be delayed across the country as they look for yet another alternative.

Another Arizona inmate, Robert Charles Towery, is set to be executed on March 8 for killing a man while robbing his home in 1991.

Earlier coverage of Arizona lethal injection issues begins at the link.

Dallas Morning News on Craig Watkins & Capital Punishment

Today's Dallas Morning News carries the editorial, "Clarity on capital punishment needed from Watkins."

Dallas County District Attorney Craig Watkins has again shifted in his ever-evolving posture on the death penalty and left the public hanging on one of the most serious issues his office deals with.

In baring a painful family secret last week — that his great-grandfather was put to death in the electric chair for murder in 1931 — Watkins reiterated his qualms with Texas’ system of capital punishment.

His exact words, spoken in open court as cameras and microphones were trained on him: “People don’t know that my great-grandfather was executed by this state. And so that’s an issue we need to explore, as it relates to our justice system. Are we doing the right thing?”

Spoken by most anybody else, it’s a welcome question, from the standpoint of this newspaper’s opposition to capital punishment.

But since Watkins wields the power of life and death, he has a responsibility to stand and see the discussion through. What he specifically meant by “the right thing” we can only guess, since he has declined requests for a follow-up interview. Watkins did add that his office will continue to pursue death-penalty cases, but is he now contemplating new procedures in his office?

And:

This newspaper believes that no system of capital punishment could be designed to eliminate the possibility of error and guarantee even-handed application across race, class and geography. For that reason, we favor a moratorium on executions and a fearless review of the archaic practice of killing people in the name of the state.

To be sure, an overwhelming percentage of Texans disagree and support the option to exact lethal justice. That makes it doubly important for a reformer such as Watkins to come to the arena prepared to argue his case fully and clearly, as any lawyer should.

Earlier coverage of Dallas District Attorney Craig Watkins begins at the link.

Texas Execution Scheduled for Wednesday

Texas is scheduled to carry out its second execution of the year, Wednesday night in Huntsville.  It would be the state's 479th post-Furman execution since 1982. 

It would be the 240th execution 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.

The AP report is, "Leader of notorious Texas 7 gang to die Wednesday," by Michael Graczyk, via the Austin American-Statesman.

George Rivas already was saddled with 17 life prison terms when he told a Dallas County jury he deserved death for organizing the largest-ever jailbreak from a Texas prison and then killing a suburban Dallas police officer.

And:

Attorneys say his appeals are exhausted. The Texas Board of Pardons and Paroles has rejected a clemency request. And Rivas acknowledges he's ready to die for fatally shooting Irving police officer Aubrey Hawkins 11 years ago.

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

TDCJ notes that five additional executions are already scheduled for 2012; the next is set for March 7.

To date there have been four executions in the nation this year; a total of 1,281 post-Furman executions since 1977.

Arizona is also scheduled to carry out an execution on Wednesday.  The AP post is, "AZ Supreme Court refuses stay of execution," via the Arizona Daily Star.

The Arizona Supreme Court on Monday again refused to stay the scheduled execution of death row inmate Robert Henry Moormann.

Lawyers for Moormann, 63, also are asking the 9th U.S. Circuit Court of Appeals to stop Wednesday’s pending execution.

And:

Moormann’s attorneys claim he was diagnosed in early childhood as being mentally retarded and therefore the state can’t execute him.

They have asked the federal appeals court in San Francisco for a preliminary injunction over questions regarding Arizona’s lethal-injection protocol.

The Arizona Department of Corrections gave notice that it plans to use a one-drug protocol for the pending execution and not the three-drug system it has used previously.

Related posts are in the execution date and lethal injection indexes.

The Larry Swearingen Case

Bllomberg posts, "High Court Won’t Hear Death Row Inmate’s Claim of Innocence," by Bob Drummond.  It's via Business Week.

The U.S. Supreme Court today refused to consider stopping the execution of Larry Ray Swearingen, a Texas death row inmate who says newly uncovered evidence proves his innocence.

Swearingen’s lawyers had asked the high court to decide for the first time whether executing an innocent person constitutes cruel and unusual punishment under the Constitution.

Lower federal courts declined to intervene in Swearingen’s case in part because, as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution.

And:

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

In a 1993 Supreme Court decision, seven justices said they at least presumed, for argument’s sake, that the Constitution prohibits putting innocent people to death. The high court, however, has never turned that hypothetical discussion into a concrete rule of law.

The court ruled in 1993’s Herrera v. Collins decision that new evidence, by itself, says nothing about whether a defendant’s rights were respected during an earlier investigation and trial. An inmate needs additional evidence of a separate constitutional violation to warrant a federal court’s involvement, the high court ruled.

“Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution,” then-Chief Justice William Rehnquist wrote for a 6-3 majority. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”

Rehnquist acknowledged the stakes would be keenest in death penalty cases.

“We may assume, for the sake of argument,” he wrote, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”

Even then, the court said, the standard for assessing new evidence would “be extraordinarily high.”

More onthe Supreme Court's 1993 ruling in Herrea v. Collins, via Oyez.

A state court hearing on Swearingen's case got underway yesterday.  "Condemned killer Swearingen back in court," is Renée C. Lee's Houston Chronicle report.

After receiving his third stay of execution last year, condemned killer Larry Swearingen is back in court trying to gain a new trial and prove his innocence.

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Jordan Smith filed a preview of the hearing, "Dissecting the Science of Death," for the Austin Chronicle.

The question of whether the science of death and decomposition can prove that Larry Swearingen, now on death row, was not responsible for the 1998 kidnapping and murder of 19-year-old Melissa Trotter, will be taken up in district court in Montgomery County starting Feb. 27.

Trotter disappeared on Dec. 8, 1998. It was finals week at Montgomery College where she was a student; she attended a science class review and did some work on a computer in the college's library, then she disappeared. Three days later, Swearingen was arrested on outstanding warrants; he's been behind bars ever since. Although the portion of the Sam Hous­ton National Forest where she was ultimately found had been searched several times, by both law enforcement and others, her body was not discovered until Jan. 2, 1999. Swearingen was subsequently charged and convicted of capital murder and sentenced to die.

At issue, however, is whether science actually proves Swearingen's innocence. Accord­ing to Swearingen's defense attorney James Rytting and a bevy of medical experts – including a number of well-respected Texas medical examiners – it is impossible for Trotter to have been dead for more than a few days when her body was found. And if she had been dead for less than a week, Swearingen could not have been the killer because he was already in jail. Specifically at question is whether Trot­ter's body displayed the kind of decomposition expected of a body left outside for several weeks in the forest in December. Accord­ing to evidence first provided to the defense in 2009, the answer is no; histological samples of Trotter's heart, lung, and vascular tissue is more consistent with a person dead mere days before she was found.

Earlier coverage of Larry Swearingen's case begins at the link.  Related posts are in the forensics index.

State Legislation Roundup - Connecticut, North Carolina

"Key Lawmaker Ties Death Penalty Vote To Repeal Of Early-Release Credits," is by Daniela Altimari for the Hartford Courant.

State Sen. Andrew Roraback, a longtime opponent of the death penalty, said Friday he would not back a repeal bill unless lawmakers also reverse a series of changes to the state's criminal justice policy.

Roraback's vote is considered key if capital punishment is to be abolished in Connecticut this year.

The legislature's judiciary committee announced earlier this week that it intends to raise the issue this session.

In past years, a repeal bill has passed the House by a wide margin but vote counts in the Senate have been much closer.

The Asheville Citizen-Times reports, "Prosecutors push for changes to innocence law used to free Asheville area men."  It's by Clarke Morrison.

Prosecutors are again seeking changes to a North Carolina law that allowed two Buncombe County men convicted of murder to be exonerated of their wrongful convictions.

A special three-judge panel freed Kenneth Kagonyera and Robert Wilcoxson in September after determining there was clear and convincing evidence they had each spent more than 11 years in prison for a crime they didn’t commit.

But representatives of the N.C. Conference of District Attorneys told lawmakers recently the law creating the N.C. Innocence Inquiry Commission needs to be changed to require a more stringent burden of proof for defendants to be exonerated.

Prosecutors also told members of a House judiciary subcommittee they want to be able to cross-examine witnesses and offer rebuttal testimony during the initial hearing before the full eight-member commission.

Earlier coverage from Connecticut and North Carolina begins at the links.

Alabama Roundup

Andrew Cohen posts, "Another Death Row Debacle: The Case Against Thomas Arthur," at the Atlantic.  Here's the beginning:

Another month, another man on death row, another excruciating case that illustrates just some of the ways in which America's death penalty regime is unconstitutionally broken. This time, the venue is Alabama. This time, the murder that generated the sentence took place 30 years ago. And this time, there is an execution date of March 29, 2012, for Thomas Arthur, a man who has always maintained his innocence. He also has the unwelcome distinction of being one of the few prisoners in the DNA-testing era to be this close to capital punishment after someone else confessed under oath to the crime.

Late last month, I profiled the wobbly capital conviction against Troy Noling in Ohio and there are remarkable similarities between it and the Arthur case. Both involve white defendants. Both include contentions of innocence and allegations of bad lawyering at trial. Both include a lack of physical evidence linking the defendants to the crime. Both include crucial witness testimony that borders the farcical. And both include state officials reluctant to permit sophisticated DNA testing that might definitively answer questions about whether the defendants committed the murders they will die for.

Arthur's attorneys are even willing to pay for that testing, the few thousand bucks it would be, and the testing could be completed by the execution date. It is here where prosecutors and judges lose me when they prioritize "finality" in capital punishment cases at the expense of "accuracy." It would cost Alabama nothing to let Arthur's lawyers do the testing. And it might solve a case that already has cost the state millions of dollars. Instead, Alabama wants to finally solve its Arthur problem by executing him. No matter how the new DNA test could come out, the state is more interested in defending its dubious conviction.

The Arthur case is also the topic of Andrew Rosenthal's New Yort Times blog post, "Is Alabama About to Execute an Innocent Man?"

Last Wednesday, Alabama scheduled the execution of Thomas Arthur for March 29. I object to the death penalty under all circumstances, but Mr. Arthur’s case is particularly troubling, because it’s possible that he’s innocent.

Mr. Arthur has been on death row since 1982 for the murder of Troy Wicker. He was not an upstanding citizen. At the time of the killing, Mr. Arthur was an inmate at the Decatur Work Release Center serving a sentence for a previous conviction (for second-degree murder). But his character shouldn’t distract us from the facts: No physical evidence linked him to the murder; no murder weapon was found; another man, Bobby Ray Gilbert, confessed to the crime under oath.

DNA testing of evidence in 2009 failed to place Mr. Gilbert at the scene, and a Jefferson County Circuit Court judge ruled that he had lied. This logic seems flimsy. Remember, there’s no DNA evidence proving that Mr. Arthur committed the crime, either.

Mr. Arthur has requested advanced DNA testing of a wig worn by the killer, which could help establish his innocence (or his guilt, for that matter). The Alabama authorities have so far opposed additional testing—despite the fact that Mr. Arthur’s counsel has offered to pay for it and that it could be completed before his execution date.

 Earlier coverage of the Tommy Arthur case begins at the link.

There is also other case news from Alabama, one involving the state's judicial override on death sentences and the other involving indigent defense costs.  First, "Attorney weighs new legal challenge in Henderson case," by Jim Mustian of the Ledger-Enquirer, via the Macon Telegraph.

More than four months after a Lee County jury recommended life in prison for Gregory Lance Henderson, the convicted cop killer’s fate remains in the hands of Circuit Court Judge Jacob A. Walker III.

The judge will decide whether to accept the jury’s 9-3 vote against capital punishment or override it and send the Columbus man to Alabama’s death row. But defense attorney Jeremy W. Armstrong of Phenix City has been exploring a fresh legal challenge to Henderson’s eligibility for execution that could change the equation in an emotional case that shook the East Alabama law enforcement community.

Henderson was found guilty in October of running over and killing Lee County deputy sheriff James W. Anderson during a September 2009 traffic stop in Smiths Station, Ala. His sentencing, initially set for Jan. 31, has been postponed twice, most recently because Armstrong has sought to determine whether Henderson is mentally retarded and therefore legally immune to capital punishment.

The development could delay the case indefinitely if additional testing is warranted. Walker has scheduled a hearing Wednesday to discuss a new sentencing date and Armstrong’s recent motion for continuance.

Coverage of Alabama's practice of judicial override begins at the link. The U.S. Supreme Court ruled in 2002 that the execution of those with mental retardation is unconstitutional; more on Atkins v. Virginia, 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.

"Alabama wants Amy Bishop trial judge to cancel order for payments to expert witnesses," is by Brian Lawson for the Huntsville Times.

Attorneys for the Alabama Comptroller's Office want the judge in the Amy Bishop capital murder case to vacate his orders for payments to defense expert witnesses and testing, according to a court filing today.

Bishop is set to go on trial March 19 on charges she killed three fellow University of Alabama in Huntsville biology faculty members and attempted to kill three other university employees on Feb. 12, 2010.

The trial date may be in some doubt as Bishop's court- appointed attorneys have asked Circuit Judge Alan Mann to delay the trial until the Alabama Court of Criminal Appeals rules on the state's refusal to accept Mann's orders to make payments for expert witnesses and related testing of Bishop by a neurologist.

And:

Alabama Comptroller David White argues in the filing that a new Alabama law governing payments to expert witnesses does not cover the Bishop case since it began before the law was passed. Previously, Alabama law did not include prior payments to expert witnesses before a case ended. The practice has been criticized by defense attorneys who argue it leaves them either paying for experts out of their own pockets, or being forced to try and find experts, often not as well-regarded in their fields, who are willing to wait months or years to be paid.

The most recent coverage from Alabama concerned the U.S. Supreme Court's ruling in Maples v. Thomas.

Justice and Open Files

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

Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.

To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.

A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.

It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.

Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.

And:

In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard.

The Tarrant County District Attorney's Office in Fort Worth established a computerized open file system that many view as a model for prosecutorial openness. The Michael Morton case may provide the momentum for the Texas Legislature to mandate some statewide system of criminal discovery when it meets in 2013.

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 on that ruling via Oyez. Related posts are in the prosecutorial misconduct index.

The Long-Delayed Phan Case in Georgia

The Georgia Supreme Court ruling in Phan v. The State is available in Adobe .pdf format.

"High court warns ‘clock is ticking' in Gwinnett death penalty case," by Steve Visser for the Atlanta Journal-Constitution.

The Georgia Supreme Court warned Monday that Gwinnett County is running out of time to try a man accused  of the execution-style killings of a toddler and his father over a gambling debt.

The high court declined  Khahn Dinh Phan's appeal that his death-penalty case be thrown out because he has not been brought to trial in nearly seven years, in part because of delays caused by the state's financially strained indigent defense system. But the court warned that Gwinnett County Superior Court needs to resolve Phan's case or risk that it will be dismissed if the delay becomes more egregious.

"We warn the clock is ticking," said the opinion by Chief Justice Carol Hunstein. Further delays caused by state budget problems could well tip the scales ...  in Phan’s favor.”

Hunstein wrote that the Phan case is an "object lesson in the perils" of underfunding the state's indigent fund, which has resulted in Phan being in the Gwinnett County jail since his arrest in March 2005. He is accused of the the Dec. 29, 2004  shootings of a Vietnamese couple and their 2-year-old son in their Lilburn home.

And:

“We emphasize that our determination that the trial court acted within its discretion should in no way be construed as an endorsement of the system that has led us down this tortuous path thus far,” the opinion said. “The interests of no one --  neither prosecutors nor defendants, victims nor taxpayers -- are served by the uncertainty and delay attending to a chronically underfunded indigent defense system.”

"Top Georgia court declines to drop murder charge against man awaiting trial since 2005," is the AP filing by Greg Bluestein.  It's via the Republic.

The Georgia Supreme Court refused to dismiss murder charges against an accused killer who claimed his right to a speedy trial was violated because he has spent nearly seven years awaiting a trial. But the opinion released Monday said the case underscores the dangers of underfunding the criminal justice system.

The unanimous ruling found that both the government and Khahn Dinh Phan share the blame for the delays in his trial for the killings of a Vietnamese man and his 2-year-old son in 2004. He was arrested in March 2005 and the setbacks in his case have made it a focal point in the funding debate over the state's oft-maligned public defender system.

In Monday's opinion, Chief Justice Carol Hunstein called the case an "object lesson in the perils of such underfunding" and used the decision to urge Georgia legislators to address the consequences of a financially-strained public defender system.

"The fact that the dismissal of murder charges has had to be legitimately considered for reasons so far removed from the accused's guilt or innocence underscores the stakes involved," she wrote. "We can only hope that those within the branches of government empowered to remedy these institutional problems will make it a priority to do so."

She made clear that the opinion should not be seen as endorsement of the "system that has led us down this tortuous path thus far" and warned that further delays caused by state budget problems or policy decisions could tip the scales of the case in Phan's favor.

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

The Cost of Lethal Injection Drugs

Today's Austin American-Statesman carries the editorial, "Add cost of drugs to death penalty debate."

Add to the list of topics for public discussion the high cost of dying.

The American-Statesman's Mike Ward reported last week that the cost of chemicals used to execute condemned inmates has jumped from $83.35 to $1,286.86 each.

And:

Prison officials are avoiding questions about most aspects carrying out executions, citing the fear of driving up costs and impeding their drug supply.

Prison authorities want Attorney General Greg Abbott to allow them to keep most information about the execution drugs — where they come from and how much they cost — secret.

An informed discussion is vital and not knowing about the drugs and their costs works against that. Texans have a right to know how their money is being spent.

Abbott should open up those books, not close them.

"Death penalty: Cost of execution drugs -- and executions -- rises," is the title of Molly Hennessy-Fiske's Los Angeles Times report.  It's also available via the Chicago Tribune.

Texas prison officials say they have enough of the drug to carry out the five executions scheduled this year, but they declined to comment about how much of the drug they have or what they plan to do if supplies run low.

Prison officials are seeking a ruling from Texas Atty. Gen. Greg Abbott before releasing execution drug records, Clark said.

“We're not releasing information on our supplier, the amount we paid for specific drugs and the amount of drugs on hand,” Clark said. “The agency is seeking an AG's opinion to keep the information confidential.”

And:

The price increase in execution drugs is also being felt in Georgia, Oklahoma, Ohio, Mississippi and South Carolina.

Oregon purchased $18,000 worth of the drugs last year, but the execution for which they were planned was ultimately called off by the governor -- who said he would approve no others. Corrections officials in other states had hoped they might be able to buy some of the leftover pentobarbital, but Oregon officials said last month that they had returned the drug to a wholesaler.

The execution drug shortage was highlighted earlier this month in a report in the Guardian about an investigation by the London-based human rights group Reprieve. Maya Foa, with the group’s Stop Lethal Injection Project, estimated the remaining stocks of pentobarbital in Georgia and Texas based on public records.

Foa calculated that Texas had 27 vials of pentobarbital left. The state needs four vials per execution -- two to inject the prisoner, two as backup -- meaning the state has enough for at least six executions, she estimated.

She estimated that Georgia had 17 vials of pentobarbital, enough for four executions.

The AP report, "New drug sparks sharp increase in execution costs," by Michael Graczyk is via Lubbock Avalanche-Journal.

The switch to a substitute drug for executions has driven up the cost of capital punishment in Texas.

A year ago, the European supplier of sodium thiopental, bowing to pressure from death penalty opponents, stopped making it. When no other vendor could be found, the drug was replaced by pentobarbital as one of the three used in the lethal injection process.

With sodium thiopental, Texas Department of Criminal Justice officials said the cost of the lethal injection cocktail was $83.35. It is now $1286.86, with the higher cost primarily due to pentobarbital, officials said. The other drugs are pancuronium bromide and potassium chloride.

A dozen executions have been conducted with the new lethal cocktail in Texas and at least five are scheduled in the coming months.

According to the new numbers, Texas has spent more than $15,400 — versus $1,000 — to carry out those 12 executions.

Prison officials have declined to identify the state’s drug supplier and the specific amount for each drug and are awaiting an opinion from the Texas attorney general on whether they can keep that information confidential.

Earlier coverage of the cost and availability of of Texas execution drugs begins at the link.  Related posts are in the lethal injection and TDCJ indexes.

Canadian on Montana Death Row Seeks Clemency

"Canadian man on Montana's death row says he's changed," by Matt Gouras is in the Great Falls Tribune.

A Canadian awaiting execution in Montana for a 1982 killing said Wednesday that he thinks there is a good chance the governor will spare his life now that he's a far different person than the out-of-control youth who took the lives of two young Blackfeet Indian men.

Ronald A. Smith of Red Deer, Alberta, has exhausted his legal appeals and is asking for life in prison instead of the death penalty.

Smith told The Associated Press in a prison interview that leniency from Gov. Brian Schweitzer is his only remaining option to avoid the death penalty, and he believes the governor will recognize that he is a changed man. Smith is speaking out in interviews for the first time in an effort to demonstrate he is worthy of executive clemency.

The Canadian government also now formally supports clemency for Smith, although the 54-year-old convict said he thinks the support from his home country is only lukewarm and won't have much bearing on the governor's final decision.

But Smith's case faces strong opposition from another government, the Blackfeet Tribal Council, and family members of the victim.

"Ronald Smith: Death Row Canadian 'Bothered' By Lack Of Support From Ottawa," is the Huffington Post Canada post by the Canadian Press

Smith asked for and received a death sentence, but later changed his mind. His legal avenues of appeal have all run out and the Montana Board of Pardons and Parole has scheduled a hearing in May after which it will make a recommendation on whether Smith should be spared. The final decision will fall to Montana Gov. Brian Schweitzer.

The governor indicated last fall there is nothing more difficult than deciding if someone lives or dies.

But he said Wednesday that he is going to let the parole board do its job.

"The parole board is first stop shopping for someone who is asking for clemency. They will make that first decision whether to make a recommendation to the governor or not," Schweitzer said.

"It would be inappropriate for me to say anything or allow someone to write something about what this semi-judiciary board will be recommending."

Prime Minister Stephen Harper's Conservative government initially refused to support Smith, saying he had been convicted in a democratic country. The decision ran counter to a long-standing policy of seeking clemency for Canadians sentenced to death in foreign lands. The Federal Court ruled the government had to back Smith.

The government did write a letter asking the board to spare Smith's life, but its public support for the bid has been minimal.

"The government of Canada does not sympathize with violent crime and this letter should not be construed as reflecting a judgment on Mr. Smith's conduct,'' the letter said. "The government of Canada ... requests that you grant clemency to Mr. Smith on humanitarian grounds.''

Related posts are in the clemency and international indexes.  Earlier coverage of Ronald Smith's case is at the link.

From Connecticut

Connecticut's Lichtfield News carries the guest editorial, "Time to eliminate the death penalty?"  It's wirtten by Mary Healy, DSW, and Jane Caron, MSW.

We are intimately acquainted with homicide grief, each one of us having lost a cherished family member to murder. But our connection to survivors is also professional, with a doctorate and master’s degree in clinical social work, and more than 30 years each of clinical experience, we have devoted our professional lives to the alleviation of human suffering, trauma, grief and loss.

As both homicide survivors and professionals who help those dealing with grief, we are less concerned with what is deserved by the murderer than we are by what is deserved by the families of murder victims. We believe that justice is only served when the needs of those who have been harmed are met. The problem with the death penalty is that it maintains a focus on the murderer when the focus rightly belongs with the people the murderer has harmed. The misplaced emphasis is evident by the fact that, while crucial victims’ services and crime prevention programs are not funded to their optimal level, the state spends between $4 million to $7 million annually on a death penalty system where the focus is primarily on the murderer.

However, there are many additional costs to victims because of our decision to keep the death penalty on the books. The process a family member goes through in a capital case is not beneficial to mental or emotional health. To start, capital cases can cause additional trauma to homicide victims’ families by making a distinction between those cases “worthy” of capital pursuit, and those not. To someone in the throes of grief, the notion that their loved one’s murder is not the “worst of the worst” is deeply offensive. Given that fewer than 2 percent of all homicides in Connecticut are prosecuted as capital cases, the majority of victims’ families are left to conclude that their loss wasn’t as horrible as someone else’s, not worthy of the attention and condemnation capital cases warrant.

And:

We have devoted our professional lives to caring for people, especially when those people are most in need. Following the murder of a loved one, people are tremendously vulnerable. We understand this on every level. The death penalty is not what victims need. If we are serious about caring for the needs of victims, we will abandon the pretense of the death penalty and work for real solutions.

"Some murder victims' families, opposed to Connecticut's death penalty, plan press conference," is the AP filing via the New Haven Register.

Some Connecticut families of murder victims are planning to publicly call on state legislators to repeal the state’s death penalty.

The family members of murder victims say they will gather at a press conference at the state Capitol next week to urge lawmakers to end capital punishment in Connecticut. The advocates say they plan on presenting the state legislators with a letter signed by over 100 murder victim family members who support the initiative.

The Feb. 29 press conference comes a week after lawmakers agreed to take up death penalty repeal legislation this session.

The legislature’s Judiciary Committee recently voted 23-to15 to raise the bill for discussion.

Earlier coverage from Connecticut begins at the link.  Related posts are in the abolition, state legislation, and victims' issues indexes.

Alabama Over-Reaching Prosecution Ends

Today's Birmingham News reports, "Gabe Watson's prosecution in wife's Australian honeymoon death ends with judge's dismissal."  It's written by Eric Velasco.

A Jefferson County judge acquitted Gabe Watson on a state capital murder charge Thursday, ending his prosecution in the scuba-diving death of Tina Thomas Watson during the couple's Australian honeymoon in 2003.

Circuit Judge Tommy Nail ruled there was no evidence that a reasonable person could consider to be proof beyond a reasonable doubt that Watson, 34, committed an Alabama crime.

Watson served 18 months in an Australian prison after pleading guilty to manslaughter there in 2009.

And:

The prosecution rested its case Thursday after a lunch break. Then Bloomston asked Nail to dismiss the case, a routine motion that normally is denied.

Bloomston argued that the only witness who saw Gabe and Tina Thomas Watson together underwater testified he thought Gabe Watson was trying to save his wife's life.

"The state is relying on speculation, suspicion and opinion," Bloomston told Nail. "The state failed to show Gabe Watson received any economic gain or attempted economic gain in this jurisdiction."

Earlier coverage of the case begins at the link.  In 2010, then-Alabama Attorney General Troy King called for a death penalty proscution of Watson.  Australia agreed to extradite Watson only after Alabama agreed to drop a death penalty prosecution.

Lethal Injection Roundup - Arizona, Nebraska News

"Federal judge declines delaying 2 Arizona executions," is Michael Kiefer's Arizona Republic report.

A federal judge on Thursday denied a preliminary injunction that would have stopped or postponed two upcoming executions because of recent changes in the Arizona Department of Corrections protocol for lethal injection.

U.S. District Court Judge Neil Wake has consistently ruled in favor of the corrections department against allegations made by the Federal Public Defender's Office, which asked for delay in the executions of Robert Moormann and Robert Towery. The men are scheduled to die Feb. 29 and March 8, respectively.

The federal defender argued that the new protocol, which went into effect Jan. 12, lessens the qualifications required of executioners, gives too much discretion to Corrections Director Charles Ryan, and eliminates the possibility of the condemned to meet with their attorneys in person on the morning of their executions, among other things.

Wake denied the request.

In December, Wake ruled that lapses by the corrections department in following its own protocol did not violate prisoners' rights. The corrections department subsequently amended its protocol, in effect institutionalizing the lapses.

Dale Baich of the Federal Public Defender's Office said he planned to appeal to the 9th U.S. Circuit Court of Appeals.

From Nebraska, the Omaha World-Herald reports, "Court grants Ryan a stay of execution."  It's by Joe Duggan.

Legal questions over how Nebraska obtained one of its lethal injection drugs led the Nebraska Supreme Court on Thursday to stay the March 6 execution of Michael Ryan.

The former religious cult leader filed an appeal Feb. 13 in Richardson County District Court that alleged the state plans to use a stolen supply of sodium thiopental to carry out his execution. The appeal is pending before District Judge Daniel Bryan.

On Thursday, the high court ruled the appeal is “sufficient cause to warrant a stay.”

"Supreme Court halts Ryan execution," by Kevin O'Hanlon in the Lincoln Journal Star.

The Nebraska Supreme Court on Thursday issued a stay of the March 6 execution of death-row inmate Michael Ryan.

In a one-page order signed by Chief Justice Mike Heavican, the court said it was issuing the stay because Ryan has an appeal pending before Richardson County District Judge Daniel Bryan Jr.

In that appeal, defense lawyer Jerry Soucie of the Nebraska Commission of Public Advocacy argues that Ryan was sentenced to die in the electric chair, which the state no longer uses. 

Ryan was convicted in the cult-related 1985 killings of James Thimm, 26, and Luke Stice, 5, near Rulo. He was sentenced to death for Thimm's murder.

Soucie also is challenging Nebraska's purchase of one of the three lethal injection drugs needed for an execution.

Nebraska switched to lethal injection after a 2008 state Supreme Court ruling that said the electric chair was unconstitutional and cruel and unusual punishment. At the time, Nebraska was the only state with electrocution as its sole means of execution.

And:

Late last year, Nebraska prison officials said they bought sodium thiopental made by Naari, a pharmaceutical company headquartered in Switzerland. In fact, they bought the drug from a middleman who bought it from Naari and then sold it to the state.

Soucie filed documents with the high court saying Harris and his company, Harris Pharma LLP, were not authorized to sell the drug. The shipping manifest from Naari to Harris Pharma, dated Sept. 30, 2011, says: "Samples have no commercial value. Samples not for sale. Free trade sample." Further, it says the drug is "for test and evaluation purpose."

That, Soucie contends, means Harris misappropriated the thiopental from Naari, and Nebraska prison officials are in possession of stolen property.

The pharmaceutical company, Naari, has asked the state to return the drug, saying it was obtained by deception.

Soucie hailed Thursday's order.

"It gives us an opportunity to try to determine the facts concerning the actions of the Department of Correctional Services ... in regards to the ... Naari purchase," Soucie said.

The ruling in Nebaska v. Ryan is available in Adobe .pdf format.

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

Cost of Executions Skyrocketing in Texas, Other States

That's the title of Mike Ward's report in today's Austin American-Statesman.  It's subtitled, "Increased costs due to new execution drug."

As Texas prison officials face the likelihood that one of the three drugs used in the nation's busiest execution chamber might no longer be available, they are facing another reality: The cost of executions is skyrocketing as well.

A year ago, it cost the Texas Department of Criminal Justice $83.35 to carry out an execution. But since the state was forced to switch from one powerful sedative to another, the cost is now $1,286.86.

That means that the 12 executions carried out so far with the new drug have cost taxpayers more than $15,400, instead of $1,000.

"The cost of all three drugs has gone up, but the overall increase is because of pentobarbital," Jason Clark, a spokesman for the corrections agency, said Thursday.

Nearly a year ago, in March, the state replaced sodium thiopental with pentobarbital in its three-drug execution cocktail after the maker of sodium thiopental stopped producing it amid international protests over its use in executions in the United States.

Now, the state faces the same dilemma again, after the manufacturer of pentobarbital said it will seek to block its use for executions.

Although Texas prison officials say they have enough of the drug to carry out the five executions scheduled so far this year, they are not discussing any details concerning their suppliers or exactly how much of the drug they have on hand — or even what they plan to do next.

And:

Texas officials are increasingly reluctant to publicly discuss most aspects of the execution process for fear of driving up the costs further or impairing their drug supply.

"We can't comment on that," Clark said several times when asked for more details, even those that a year ago were public.

Texas prison officials are seeking a ruling from Texas Attorney General Greg Abbott to allow them to keep secret many details about execution drugs, where they come from, even how much they cost.

Corrections officials in Texas and other states are saying little about what other drug they might switch to, if the supply of pentobarbital dries up. But propofol is frequently mentioned in private conversations.

That is the powerful sedative that was blamed in the death of entertainer Michael Jackson in June 2009.

"Lethal injection drugs harder and harder to find," is Rina Palta's report for California public radio station KALW-TM.

For the second time in as many years, a drug commonly used in executions will become unavailable.

Word’s come out that pentobarbital, a barbituate several states use in lethal injections, will be much harder to find shortly, as the sole FDA-approved manufacturer of the drug is refusing to sell it to states that use it for executions. Pentobarbital, incidentally, became widely adopted just last year as a replacement for sodium thiopental, which was recently discontinued by its US maker.

And:

States using pentobarbital in executions include Oklahoma, Florida, Ohio, and Texas. California, meanwhile, has a stockpile of  sodium thiopental, which expires in 2014. California obtained its supply from a company in the United Kingdom. European countries have since prohibited companies from selling the drug to US states seeking to use it to carry out the death penalty.

Earlier coverage of Texas lethal injection issues begins at the link; news from Oklahoma is also available.

Related posts are in the lethal injection, international, and TDCJ indexes.

Craig Watkins Seeks Death Penalty Review

There's more today from the Dallas County District Attorney, following an interview with AP.

"Texas DA seeks death penalty review," is the AP interview, via CBS News.  Here's an extended excerpt:

The Texas prosecutor leading an aggressive push to free wrongly imprisoned inmates, in a county where more than two dozen wrongful convictions have been overturned, is calling for a review of the capital punishment system in the nation's busiest death penalty state.

Craig Watkins' tenure as Dallas County's top prosecutor has earned him a national reputation. Now, as Watkins publicly acknowledges that his great-grandfather was executed in Texas almost 80 years ago, he called on state lawmakers to review death penalty procedures to ensure the punishment is fairly administered.

"I think it's a legitimate question to have, to ask: 'Have we executed someone that didn't commit the crime?'" Watkins said in an interview with The Associated Press.

After becoming district attorney in 2007, Watkins started a conviction integrity unit that has examined convictions and, in some cases, pushed for them to be overturned. Dallas County has exonerated 22 people through DNA evidence since 2001 — by far the most of any Texas county and more than all but two states. An additional five people have been exonerated outside of DNA testing. Most of those exonerations occurred during Watkins' tenure.

Texas has executed 55 inmates since 2009, including 13 last year, a 15-year low. Twelve former death row inmates have been freed since 1973.

"I think the reforms we've made in our criminal justice system are better than any other state in this country," Watkins said. "But we still need reforms. And so, I don't know if I'm the voice for that. I just know, here I am, and I have these experiences."

Among those experiences was hearing about the execution of his great-grandfather, Richard Johnson. According to state criminal records and news accounts, Johnson escaped from prison three times while serving a 35-year sentence for burglary, and he was charged with killing a man after his third escape. He was convicted of murder in October 1931 and executed in the electric chair in August 1932.

Watkins said he did not get a full explanation of what happened until he became district attorney. His grandmother, who was a young girl when her father was executed, still struggles with the story, according to Watkins and his mother, Paula.

Watkins says he opposes the death penalty on moral grounds but doesn't want those beliefs "pushed upon someone else." He has sought the death penalty at trial in nine cases, with eight death sentences received. An additional four death penalty cases are pending, according to his office. A panel within his office reviews possible death penalty cases and votes on whether to pursue it.

Today's Dallas Morning News reports, "For Dallas DA Watkins, views on death penalty may be changing again."  It's by Ed Timms and Jennifer Emily.

Long before he divulged that his great-grandfather was executed by the state, Dallas County District Attorney Craig Watkins struggled to define his views on the death penalty.

And that extraordinary revelation, made in passing at a news conference on Wednesday, may signal that Watkins is at it again.

Whether his philosophical pendulum is swinging back to his nearly lifelong opposition to the death penalty, or will come to rest at some point short of that, remains to be seen. But there’s little question that his remarks will re-energize debate about capital punishment and scrutiny of Watkins’ performance as the county’s top law enforcement officer.

The Dallas Morning News reported Watkins’ disclosure that “people don’t know that my great-grandfather was executed by this state” online Wednesday and in Thursday’s newspaper, but Watkins balked at explaining his reasons for making the information public.

He told The Associated Press in a story distributed Thursday that he was calling on state legislators to review death penalty procedures to ensure the punishment is fairly administered.

He called for reforms. “I don’t know if I’m the voice for that,” he told the AP. “I just know, here I am, and I have these experiences.”

He hinted at a similar role for himself in April 2008, after the U.S. Supreme Court upheld the constitutionality of lethal injection while at the same time one justice called for a national debate on the morality of the death penalty.

Watkins, the first black elected district attorney in Texas, told The News that the spark for such a debate “is going to come from someone in a district attorney’s seat.” Whether the second-term Democrat’s shifting record on the death penalty might detract from his role as a voice for reform is a question yet to be answered.

State Sen. Rodney Ellis, D-Houston, a senior member of the Senate committee on criminal justice, said in a statement released Thursday that he favored scrutiny of the death penalty.

“I think more and more Texans — and people all over the country — are taking another look at the death penalty. I don’t foresee a time when major changes will occur, but the discussion has at least begun on how we make it more just and how we make it more certain that we actually have the right guy.”

"Dallas DA reveals his great grandfather was executed for a Wichita Falls murder," by Lynn Walker for the Wichita Falls Times Record News.

A murder that happened in Wichita Falls 81 years ago is now causing a ripple through arguments over the death penalty in Texas.

A judge in Dallas on Wednesday exonerated a man who spent 14 years in prison for a murder he did not commit. Richard Miles, 36, was freed after evidence surfaced that another person committed the murder.

At that court hearing, Dallas County District Attorney Craig Watkins expressed serious concerns over the use of the death penalty in Texas. Then Watkins dropped a bombshell — his great grandfather had been sent to the electric chair for committing a murder in Wichita Falls.

“We need to take a look at capital punishment as it relates to if we’re doing the right thing,” he said. "There’s a personal side of me. People don’t know that my great grandfather was executed by this state. And so that’s an issue we need to explore as it relates to our justice system — are we doing the right thing?”

Watkins’ great grandfather, Richard Johnson, was one of two men convicted in a killing that happened Sept. 9, 1931 on a sparsely-housed stretch of Dayton Street west of Brook Avenue.

Earlier coverage of Dallas District Attorney Craig Watkins begins at the link.

Craig Watkins

Today's Dallas Morning News reports, "District Attorney Craig Watkins says his great-grandfather was executed."  It's by Jennifer Emily and Ed Timms.

Dallas County District Attorney Craig Watkins offered a hint Wednesday to his nearly lifelong opposition to the death penalty, an opinion that changed only two years ago during a close re-election campaign.

“People don’t know that my great-grandfather was executed by this state,” Watkins said.

Watkins is the first black man elected district attorney in Texas, a Democrat whose national reputation largely rides on his pursuit of justice for wrongly convicted inmates.

The startling pronouncement came during a celebratory news conference after the official exoneration of Richard Miles, who spent 15 years behind bars for a murder and attempted murder he didn’t commit.

Watkins left the news conference without further comment and declined to talk again, saying he would not be available until Friday. He offered no further details on his great-grandfather.

That man, Richard Johnson, was executed on Aug. 10, 1932. An Associated Press story from October 1931 published in The Dallas Morning News said that Johnson was sentenced to death after a jury deliberated for 40 minutes in the murder of a Fort Worth man, Ted Nodurft. The murder occurred just more than a month before the trial.

Before telling the media that his relative was executed, Watkins said that exonerations should be used to examine whether the state is “doing the right thing” by using capital punishment. He also said that his office will continue to pursue death cases because it is the law.

And:

Watkins, at various times since he took office in 2007, has publicly said that he was against the death penalty and then changed his mind and said he supported it.

“I came in with a certain philosophical view. I don’t have that anymore,” Watkins said in 2010 when he announced he’d support the death penalty. “From a religious standpoint, I think it’s an archaic way of doing justice. But in this job, I’ve seen people who cannot be rehabilitated.”

Watkins at the time said he still had concerns that prosecutors somewhere might send the wrong person to death row.

His office continues to seek death sentences.

Dallas County has exonerated 22 men on the basis of eyewitness testimony since 2001. Several others, including Miles, were cleared with other evidence.

The Morning News also has more on the Miles exoneration, "Judge formally exonerates Dallas man wrongly convicted," by Jennifer Emily.

Earlier coverage of Craig Watkins begins at the link.

Next Texas Execution Date Withdrawn for DNA Testing

The Houston Chronicle posts "San Antonio man set to die next week wins reprieve," by Michael Graczyk of AP.

An ex-con convicted of killing a San Antonio man and stealing his prized motorcycle won a stay of execution Thursday when a judge in Houston agreed to new forensic tests.

Anthony Bartee, 54, had been scheduled for lethal injection Tuesday evening in Huntsville.

Bartee's lawyers argued in appeals that more DNA testing should be conducted on two strands of hair found in victim David Cook's hands. A third strand of hair was tested earlier and identified as belonging to the 37-year-old victim. Prosecutors argued the other two were scientifically insufficient for meaningful tests.

"What we're doing now is looking into which labs are capable of doing the testing in the shortest amount of time," Rico Valdez, an assistant Bexar County district attorney who handles capital case appeals, said.

State District Judge Mary Roman withdrew the execution warrant Thursday.

According to TDCJ, five Texas executions are currently scheduled, including one for February 29.

The Stephen Barbee Case in Tarrant County

The post-convictin hearing was ordered by the Court of Criminal Appeals.  Here are links to several articles on the hearing, which is continuing today.

"Consultant says convicted killer's attorneys pressured him to plead guilty," is by Deanna Boyd for the Fort Worth Star-Telegram.

A mitigation specialist hired by defense attorneys in Stephen Barbee's 2006 capital murder trial testified Wednesday that the attorneys frequently pressured Barbee to plead guilty and didn't explore or present some evidence that she believes could have helped the Death Row inmate.

Amanda Maxwell testified that Barbee's trial attorneys, Bill Ray and Tim Moore, failed to delve more into what she said were mitigating circumstances in the case, including several head injuries Barbee had suffered throughout his life and his abuse of hydrocodone for one of those head injuries.

In February 2006, Barbee was convicted of capital murder and sentenced to lethal injection for the smothering deaths of Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son, Jayden.

Prosecutors said Barbee killed Underwood because he believed that she was pregnant with his child (DNA tests later proved he was not the father) and wanted to keep their relationship from his wife.

Maxwell was the first to testify in a hearing before state District Judge Louis Sturns over allegations by Barbee's appellate attorneys that important information was withheld from Barbee's capital murder trial due to a "secret deal" between then-state District Judge Bob Gill and Ray, Barbee's lead attorney.

Barbee's appellate attorney, A. Richard Ellis of California, has said federal court testimony by Ray in connection with an unrelated case -- made public in 2010 in an article by The Associated Press -- revealed that Gill had negotiated plea deals in probation revocation cases, many of which he had appointed Ray to handle, to move cases more quickly though his docket.

Ellis says that because of that conflict of interest with the judge, Ray failed to provide effective counsel and deprived Barbee of a fair trial.

"Defense attorney answers allegation in death case," is the latest AP filing on the hearing.  It's via KTRK-TV.

The lawyer court-appointed to lead Stephen Barbee's defense at his double-murder trial six years ago is to testify to allegations that he and the trial judge had a "secret deal" to move cases quickly through the judge's court.

Former State District Judge Bob Gill testified in state court that he believed the attorneys who represented Stephen Barbee, sentenced to die foJudge Bob Gillr killing his pregnant girlfriend and her 7-year-old son, were effective despite having "a difficult case to try."

Barbee is seeking a new trial, claiming he received ineffective counsel because his lead attorney, William H. "Bill" Ray, had a "secret deal" with Gill, who retired from the bench in 2007, to make cases move quickly in the judge's court.

Wednesday was the first day of a two-day hearing in front of Judge Louis Sturns, who succeeded Gill on the bench. Sturns will recommend to the Texas Court of Criminal Appeals whether a new trial is warranted.

Gill, now an assistant district attorney in Tarrant County, acknowledged he had an "arrangement" with Ray to let the attorney handle most of the probation revocation cases involving indigent defendants in the judge's court. But he described it as a matter of picking the most available attorney.

"Mr. Ray came around the courthouse and made himself available for court on Fridays, which is when I handled most of my probation revocation hearings," Gill testified.

An earlier AP posts, "Witness: Lawyers wanted guilty plea in death case," is also via KTRK-TV.

"Double-murder case returns to Fort Worth," by Dianna Hunt is an earlier Star-Telegram report.

State District Judge Louis Sturns will decide whether Death Row inmate Stephen Barbee should get a new trial in the killing of his ex-girlfriend and her 7-year-old son based on his appellate attorney's argument that the trial judge and Barbee's trial attorney had a "secret deal."

Sturns has set a hearing to begin Wednesday to consider evidence that Barbee's lead trial attorney, Bill Ray of Fort Worth, had an ongoing agreement with former state District Judge Bob Gill that caused important information to be withheld from Barbee's capital murder trial.

In court filings, Barbee contends that he was denied due process and a fair trial because his attorneys "had a conflict of interest that precluded them from effectively representing Barbee at trial."

Barbee's appellate attorney, A. Richard Ellis of California, said Monday that important evidence was not presented at the trial, which lasted less than three days.

"Circumstantially there was a very strong suggestion of conflict of interest," Ellis said.

Ray emphatically denied the contention.

And:

The Texas Court of Criminal Appeals -- the state's highest court in criminal matters -- ordered the trial court to consider Barbee's appeal, and Sturns set the special hearing to hear evidence.

The allegation of a secret deal stems from an unrelated case in which Ray represented a woman facing revocation of her probation. During an appeal in federal court, Ray testified that Gill had a policy of personally handling plea bargaining with defendants facing probation revocation, and that the sentence was higher if the defendant rejected the plea offer, according to court documents.

It also notes:

In an article about Gill's handling of probation cases, Associated Press writer Danny Robbins reported in 2010 that Tarrant County records indicated that Ray had received more than $700,000 from 2001 to 2007 from appointments in Gill's court. That was 43 percent of his total earnings from court appointments, Robbins reported.

Ray and Gill have been subpoenaed to testify in the Barbee hearing, which is expected to continue for two days in Sturns' 213th state District Court.

The Los Angeles Times posted a preview of the hearing, "Texas death row inmate claims lawyer had 'secret deal' with judge," written by Molly Hennessy-Fiske, reporting from Houston.

A Texas death row inmate convicted of murdering his pregnant ex-girlfriend and her 7-year-old son in 2005 is seeking a new trial, alleging that his attorney had a "secret deal" with the judge to quickly dispose of his case.

Attorneys for Stephen Barbee, 44, plan to argue in a Fort Worth state court this week that his defense in the double murder case was tainted.

The proceeding, scheduled to begin Wednesday, was ordered by the Texas Court of Criminal Appeals after a 2010 Associated Press story showed that presiding Judge Robert Gill had negotiated plea deals in certain cases, many of which were handled by Barbee's court-appointed attorney, William H. "Bill" Ray.

Ray gave details about the plea deals, which expedited Gill's docket, during testimony in a 2009 federal court case that a judge subsequently sealed. The issue was kept quiet until the AP story ran.

The 2011 Court of Criminal Appeals order in Ex Parte Barbee is at the link.  Judge Sturns was recently appointed to hear the Court of Inquiry in the Morton exoneration.

Connecticut Repeal Bill to Be Heard

The Day reports, "Death penalty repeal bill to resurface in legislature."  It's by JC Reindl.

A bill that would repeal the death penalty is moving forward in the legislature.

The General Assembly's Judiciary Committee voted 23 to 15 Wednesday to raise the repeal bill for this year's short session.

The wording is expected to be similar to that which passed the committee last year, replacing execution with life imprisonment without parole. It would also be a "prospective" measure and not apply to the 11 convicts currently on Connecticut's death row, only to future crimes.

And:

Last year's bill never came to a formal vote after state Sens. Edith Prague, D-Columbia, and Andrew Maynard, D-Stonington, changed their minds about repealing the death penalty after meetings with Dr. William Petit, the sole survivor of the 2007 Cheshire home-invasion murders.

Maynard has said he intends to vote for repeal bill this year because both home invasion trials are over and the killers, Steven Hayes and Joshua Komisarjevsky, have been sentenced to death.

Prague said Wednesday that she remains undecided.

"Table Set For Another Debate on the Death Penalty," by Daniela Altimari for the Hartford Courant.

The fate of Connecticut’s death penalty will once again be up for debate this legislative session.

The powerful judiciary committee voted 23 to 15 this afternoon to raise a bill repealing capital punishment in the state. Seven lawmakers did not vote.

That doesn’t mean a repeal will pass the committee. Several lawmakers voted in favor of raising the concept even though they believe the death penalty should stay on the books.

Sen. Paul Doyle, a democrat from Wethersfield, said he does not support abolishing the death penalty but believes the debate ought to happen. “I’m comfortable voting yes but that does not indicate how I’m going to vote later,” he said.

Rep. Bob Godfrey, D-Danbury, took a similar stance. “Like Sen. Doyle, while I prefer to keep the death penalty as it is here in Connecticut, I’m going to vote to raise this bill for a public hearing and probably to get it out of committee because I think this is too important for just a committee to vote on, but the House and Senate should take it up too.”

But Sen. Kissel, a Republican from Enfield who opposes the death penalty, voted not to raise the bill “as a protest.”

"CT Lawmakers Take Up Legislation to Repeal Death Penalty," by Lucas Willard for public broadcasting station WAMC.  There is audio at the link.

The legislature's Judiciary Committee on Wednesday voted 23-15 to raise the bill for discussion. A public hearing has not yet been scheduled.

Committee members are unsure how the bill will fare.

Representative Gary Holder-Winfield, a New Haven Democrat, said he's been working to gain the support of state legislators who previously opposed repeal.

Last year, repeal legislation failed in the Senate due, in part, to the on-going death penalty trial in a fatal Cheshire home invasion case. The two men convicted in the deaths of a woman and her two daughters are now on death row.

Governor Dannel P. Malloy has said he would sign legislation abolishing the death penalty for all future cases.

Earlier coverage of the Connecticut repeal debate begins at the link.

Virginia Triggerman Bill Again Voted Down

WAVY-TV posts the AP report, "Triggerman bill killed by Senate panel," written by Larry O'Dell.

For the fifth year in a row, the Virginia General Assembly has rejected legislation to expand the state's death penalty law.

The Senate Courts of Justice Committee voted 8-6, with one abstention, on Wednesday to kill a proposal to allow the death penalty for accomplices who share a murderer's intent to kill. The bill would have revised Virginia's "triggerman rule," which in most cases allows capital punishment only for the person who does the actual killing.

Two weeks ago, the Senate's own version of the Republican-backed bill died in the courts committee on a 7-7 party-line vote, with one GOP senator abstaining because he accepts court appointments to represent capital murder defendants. Sen. Bill Stanley of Franklin County abstained again Wednesday. Republican Sen. Bryce Reeves of Fredericksburg switched sides and voted against the bill.

Reeves said after the committee meeting that he changed his vote "based on my faith," but he declined to elaborate.

Similar bills cleared both the House and the Senate in 2008 and 2009, but were vetoed by then-Gov. Tim Kaine, a Democrat, and supporters of the legislation could not muster the two-thirds majority needed in both chambers of the General Assembly to override the vetoes. The Senate courts committee rejected the bills in 2010 and 2011, when Democrats held the majority.

"A step in the right direction," is the title of Nelson Graves' News Virginian column.

It’s really amazing how the now Republican controlled Virginia General Assembly works. For every step the General Assembly takes forward it takes two backward. Look at recent examples of how it seems the conservative state senators and delegates have their priorities backwards.

A step forward – two weeks ago, the assembly’s senate failed to pass the “triggerman” bill. According to the Associated Press, “A Senate committee killed a bill to expand Virginia’s death penalty.” The bill failed after party line voting ended in a 7-7 tie. As it happened a Courts of Justice Committee Republican abstained because he accepts court appointments to represent defendants in capital murder cases.    

The AP report goes on – “Death penalty opponents say Virginia should not expand capital punishment because the commonwealth ranks behind only Texas in the number of state executions conducted in the United States.

“They also said there is too much danger of executing an innocent person because there is no DNA or fingerprint evidence that would prove a conspirator’s intent.” A similar bill is working its way through the House of Delegates but must clear the same Senate committee.

One step backward involves the sales of guns.

Earlier coverage of the Virginia death penalty expansion legislation begins at the link.

Legislative Update - South Dakota, Virginia

We have brief AP reports from South Dakota and Virginia.

From South Dakota, the Rapid City Journal posts, "SD Legislature passes limit on inmate appeals."

The South Dakota Legislature has given final approval to a measure aimed at preventing death-row inmates from filing repeated appeals in an effort to delay their executions.

The House voted 60-5 to approve a bill that has already been passed by the Senate. It will become law if signed by Gov. Dennis Daugaard.

Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for two decades.

Virginia's WRIC-TV posts, "House Committee Voting On Death Penalty Expansion."

Legislation to expand the death penalty in Virginia is up for a key vote at the General Assembly.

The Republican-backed bill would redefine the so-called triggerman rule, which in most cases restricts the death penalty to the person who does the actual killing. The bill would allow the death penalty for accomplices who share the intent to kill.

Del. Todd Gilbert's bill is on the docket for Wednesday afternoon's Senate Courts of Justice Committee meeting.

Two weeks ago, the Senate's own version of the bill died in the courts committee on a 7-7 party line vote, with one Republican abstaining because he accepts court appointments to represent capital murder defendants. The same vote on the House bill would doom the triggerman revision for the fifth consecutive year. 

Earlier legislative coverage from South Dakota and Virginia at the links.  Related posts are in the state legislation index.

Also From Philadelphia - A Supreme Court Ruling

Barbara Leonard posts, "Man on Death Row Loses Chance for Clean Slate," at Courthouse News Service.  The case is Wetzel v. Lambert; the opinion is available in Adobe .pdf format.

The Supreme Court on Tuesday dashed an order to free or retry a death-row inmate convicted of double homicide more than 30 years ago.

"Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prose­cution," the six-page decision states (emphasis in original). "That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996].

James Lambert had nearly won his freedom last year based on evidence that may have exonerated him at trial.

In 1984, Lambert was sentenced to death for murdering two people while robbing a Philadelphia business called Prince's Lounge.

Admitted accomplice Bernard Jackson testified against Lambert and also identified Bruce Reese as a participant to the crime. But Lambert recently discovered a 1982 document in which Jackson identifies a third man named Lawrence Woodlock as a co-defendant, presumably to the robbery he committed with Lambert and Reese.

Lambert said prosecutors never disclosed the "police activity sheet" that contained this information in violation of Supreme Court precedent in Brady v. Maryland, which held that it is a violation of due process for prosecutors to suppress evidence that favor the defendant.

And:

In a three-page dissent, Justice Stephen Breyer rejected the idea that the police notation was ambiguous.

"The nota­tion clearly refers to this case, not to some other case," according to the dissent, which Justices Ruth Bader Ginsburg and Elena Kagan joined. "It sets forth the file number of this investigation, the inves­tigators of this crime, the victims of this murder, and the potential witnesses of these events. It does not refer specifically to any other robbery. The notation says that "[a] [p]hoto display was shown to ... [witnesses in this case],' and it specifies that the '[p]hoto display contained a Lawrence Woodlock.' In this context, the words must refer to a display that included persons potentially involved in this robbery. That being so, the most natural reading of the statement, 'Mr. Woodlock is named as co-defendant by Bernard Jackson,' is that it too refers to this murder and not to some other crime."

Breyer also disagreed that the federal appeals court "overlooked" the ambiguity issue, noting that the state courts never made any such determinations.

"If the trial court expressed any view about ambiguity, it thought that the police notation was not ambiguous," he added.

While the Supreme Court majority pointed out that the state high court used the word "speculative," Breyer said the context shows "that the court used that word to refer to Lambert's claim that the notation showed that he was innocent."

The ABA Criminal Justice Section posted this summary:

Summary: The Court of Appeals for the Third Circuit had granted Lambert, who was convicted of capital murder in 1984, habeas relief; the court held that the failure to disclose a police activity sheet violated Lambert’s rights under Brady v. Maryland.  In a per curiam opinion, the Court vacated the judgment of the Third Circuit and remanded the case for further proceedings on the grounds that the Third Circuit had failed to address the state court’s determination that the notations on the activity sheet were “not exculpatory or impeaching” but instead “entirely ambiguous.” Justice Breyer filed a dissenting opinion, which was joined by Justice Ginsberg and Justice Kagan.

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

The Lerner Report on Philadelphia Capital Indigent Defense

Today's Philadelphia Inquirer reports, "Report calls pay for lawyers in Philly death-penalty cases 'grossly inadequate'."  It's by Robert Moran.  Here's an extended excerpt:

A report ordered by the state Supreme Court concludes that the pay for court-appointed lawyers in Philadelphia death-penalty cases is "grossly inadequate" and "unacceptably increases the risk of ineffective assistance of counsel."

The report, made public Tuesday, was written by Common Pleas Court Judge Benjamin Lerner, whom the high court ordered to assess the facts and legal issues on the subject and report back. It is now up to the Supreme Court to decide if it will act, and when.

Last year, The Inquirer reported that scores of Philadelphia death-penalty cases had been reversed by appellate courts or sent back for new hearings because of serious errors by defense attorneys. Low pay is a key reason, critics say.

In Philadelphia, fewer than 30 of 11,000 lawyers are willing to take capital-case appointments for indigent clients and also meet minimum state requirements for doing so.

And Philadelphia pays less than any other county in Pennsylvania, according to defense lawyers who petitioned the Supreme Court to increase the fees or halt death-penalty cases until that happens. The high court instead ruled that more information was needed and gave Lerner the assignment.

Lerner, who oversees homicide cases in Philadelphia, was told to determine if the pay for court-appointed lawyers was "so inadequate that it can be presumed that court-appointed counsel are constitutionally ineffective."

He also was asked if the problem needed to be dealt with "in a general, global sense," or case-by-case.

Lerner concluded that each case must be dealt with individually.

"However," he wrote, "the compensation of court-appointed capital defense lawyers in Philadelphia is grossly inadequate, both as to the dollar amount of the compensation and as to the compensation schedule provided by the present fee system.

". . . The existing compensation system unacceptably increases the risk of ineffective assistance of counsel in individual cases and is primarily responsible for the First Judicial District's growing inability to attract a sufficient number of qualified attorneys willing to accept court appointments in capital cases."

"Free lawyers defended," is the brief item in the Phialdelphia Daily News.

A study commissioned by the Pennsylvania Supreme Court has found that although the fees that the state pays court-appointed attorneys in death-penalty cases are "grossly inadequate," those fees do not mean that all such attorneys are "constitutionally ineffective."

The report, filed yesterday and written by Common Pleas Judge Benjamin Lerner, states that the fee system - "a disaster waiting to happen" - could increase the risk of ineffective legal counsel and is primarily responsible for the low number of attorneys willing to accept court appointments in capital cases.

Among the report's recommendations are that a new fee system be created that pays capital-case attorneys a rate of $90 per hour for preparation and court time. Currently, lead attorneys are paid a $2,000 flat preparation fee plus $400 for each full trial day.

Judge Lerner's Report is available in Adobe .pdf format.  Thanks to Jeff Gamso for securing the Lerner Report and Recommendations.

Earlier coverage of the Philadelphia capital indigent defense system begins at the link.  Related posts are in the indigent defense index.

Connecticut Legislative Committee Considers Repeal Bill

"Conn. legislators to raise death penalty repeal," is the AP report, via the Hartford Courant.

After weeks of speculation, Connecticut lawmakers will once again raise legislation to repeal the state's death penalty.

The bill is expected to be brought before Wednesday morning's Judiciary Committee meeting, just making the committee's legislative deadline.

And:

Rep. Gary Holder-Winfield, a New Haven Democrat, said he's been working to gain the support of state legislators who previously opposed repeal.

Last year, repeal legislation failed in the Senate due, in part, to the on-going death penalty trial in a fatal Cheshire home invasion case. Two men convicted in the deaths of a woman and her two daughters are now on death row.

Gov. Dannel P. Malloy has said he would sign legislation abolishing the death penalty for all future cases.

Earlier coverage from Connecticut begins at the link.  Related posts are in the abolition and state legislation indexes.

Bob Ray Sanders on the Morton Court of Inquiry

"Important move forward on holding both sides of court accountable," is the title of Bob Ray Sanders' column in today's Fort Worth Star-Telegram.  Here's the beginning:

What happened to Michael Morton should never happen to any human being anywhere, especially in a country where the word justice is righteously regarded as a major pillar of our democratic republic.

He should never have been charged with a crime, much less indicted, convicted and sentenced to life in prison.

Thanks be to God and an organization called the Innocence Project, Morton was officially exonerated in December on charges of killing his wife in 1986, but not before he had spent 25 years in the Texas prison system.

In a statement to the court after charges were formally dismissed, Morton said, "Thank God this wasn't a capital case."

Indeed, otherwise he would likely have been executed before we learned of his innocence.

But Morton's case, one of 289 DNA-related exonerations in the country and more than 40 in Texas in the last 10 years, shines a glaring light on a more chilling and sinister issue involving criminal prosecutions, particularly in the Lone Star State.

His lawyers contend that Morton wasn't just a victim of mistaken identity, but a casualty of prosecutorial misconduct. Specifically they allege that the prosecutor in the case, Ken Anderson, who was then the Williamson County district attorney, deliberately withheld evidence that pointed to Morton's innocence.

Earlier coverage of the court of inquiry ordered in the Morton exoneration begins at the link.

Florida Juries

The Miami Herald carries the OpEd, "Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril."  It's written by former Florida Supreme Court Justice Raoul Cantero and Florida State University Law prof Mark Schlakman.

Challenging the status quo to promote fairness and impartiality in our justice system can be both a virtue and an exercise in frustration.

When Florida’s death penalty process is at issue, even the most stalwart advocates for improvements in the administration of justice tend to shy away from the challenge, claiming that the timing isn’t right, that they don’t want to risk being branded as soft on crime or insensitive to victims’ issues, or that they don’t want to undermine their larger agendas by association.

Moreover, the Florida Bar Foundation, which had played an instrumental role in advancing death penalty process reform efforts, is less inclined to support such projects today given its depleted discretionary funding.

The alarming backdrop is that the Death Penalty Information Center, an independent Washington, D.C.-based nonprofit organization, reports that since 1973, Florida has reversed more death sentences than any other state.

Frank Lee Smith was exonerated posthumously after the actual perpetrator was identified. He died from cancer after languishing on death row for 14 years. Juan Melendez was exonerated after almost 18 years on death row when a taped confession by the real perpetrator was discovered.

Reasonable people may disagree about the merit, efficacy and morality of capital punishment, but all should agree that the process must be fair, impartial and as timely as possible.

Earlier coverage from Florida begins at the link.

The Connecticut Repeal Debate

"Seize chance to end state's death penalty," is the Day's editorial in its Sunday edition.

Once again we call upon the General Assembly to approve and Gov. Dannel P. Malloy to sign legislation abolishing the death penalty in Connecticut.

There is no evidence to back claims that the existence of a death penalty reduces murders. The 10 highest states in per capita murders all have the death penalty. Conversely, of the 10 states with the lowest murder rates, six prohibit capital punishment.

Death penalty opponents also argue that taxpayers don't want to pay to support killers in prison. But the reality is that the long appeals process is more expensive than life imprisonment. An analysis of death penalty cases in Texas found the average cost from trial to execution to be $2.3 million. A recent Connecticut Office of Fiscal Analysis review concluded the state would save $4 million annually in defense, prosecution and court costs due to a repeal of the death penalty.

Eliminating deterrence and savings leaves revenge as the only argument for executing murderers. Vengeance as public policy demeans us as a society, lowering the state to the level of the killer rather than taking the higher moral road.

The United States is consistently among the top five countries in the number of executions, joining China, Iran, North Korea, and Yemen. That is hardly proud company to keep when it comes to respecting human rights.

The Day carried the OpEd, "A son murdered, a hard lesson on the use of the death penalty," yesterday.  It's written by Rae Giesing, whose son and his stepbrother were murdered in May 2006.

It is absolutely impossible to describe what it feels like to lose a child, much less to lose a child to violence. I wouldn't wish it on my worst enemy. Now that I have been thrown into a world where murder and trials are no longer distant or abstract notions, I have paid close attention to the efforts in Connecticut to repeal the death penalty. My personal experience has provided me with many reasons why I think Connecticut will be better off without the death penalty.

For starters, I wouldn't wish the death penalty process on any grieving family. I'm incredibly grateful my family wasn't put through the ordeal that comes with the death penalty. Capital cases nearly always take longer to go to trial and then last longer. When the trial is over, with its separate guilt and sentencing phases, and a death verdict is handed down, the journey for the families of victims just begins.

In Connecticut, only one person has been executed in the last 50 years. When someone is sentenced to death, a myriad of constitutionally mandated safeguards go into effect and the actual execution is a distant blip on the horizon. So the family members wait vigilantly for the day when the offender's punishment will finally be carried out.

In our case, prison was the punishment and we were able to see that punishment carried out immediately. We know that the young man is suffering dearly for taking the life of my son and won't be a threat to anyone else. I can't imagine how my life would be stuck on pause if I were still waiting for the "real" punishment of an execution to take place.

Earlier coverage of the Connecticut repeal debate begins at the link.

Oklahoma Also Running Low on Execution Drugs

The Oklahoman reports, "Oklahoma is running low on supply of drug used in lethal injections."  It's by Andrew Knittle.

The state Corrections Department is running low on a $1,800-per-dose drug used to execute Oklahoma inmates, and there may not be an acceptable replacement available on the market.

Department spokesman Jerry Massie said the U.S. firm who makes pentobarbital — a fast-acting barbiturate originally designed to sedate animals — has stopped selling the drug to institutions that perform executions.

Pentobarbital is the first of three drugs administered to a condemned prisoner, causing unconsciousness.

It's followed by vecuronium bromide, which stops respiration. Potassium chloride, which stops the heart, is the final drug injected.

In December 2010, Oklahoma became the first state to use pentobarbital during an execution of a human being.

And:

Since then, Oklahoma has executed three prisoners using pentobarbital. The last one was in Gary Roland Welch in January. Welch was convicted of first-degree murder in 1996.

Massie said the state has three doses of pentobarbital left.

“We bought more last year, ahead of any executions because we thought this might happen,” he said. “In the past, our practice had been to buy enough for the year, though.”

The article notes that Oklahoma state law specifies the use of the electric chair and firing squad as alternative methods of execution if lethal injection is not available.

"Prisons chief says Okla. needs execution options," is the AP filing, via the Wichita Falls Times Record News.

Oklahoma's top prison official says the state needs to plan for the future of executions as it faces a shortage of a lethal injection drug that is difficult to obtain.

Corrections Director Justin Jones said Monday the state has four doses left of pentobarbital, which manufacturers have objected to selling for use in executions. It's unclear what the state will do if it exhausts its supply.

It was reported last week that Texas is facing a shortage of pentobarbital.

Court of Inquiry to Examine Morton Case, Prosecutor

Today's Austin American-Statesman reports, "Special court will look at former DA's role in wrongful prosecution."  It's written by Chuck Lindell.

A special court will examine whether Georgetown District Judge Ken Anderson acted improperly when, as Williamson County's district attorney in 1987, he prosecuted Michael Morton for a murder the authorities now acknowledge he did not commit.

Texas Supreme Court Chief Justice Wallace Jefferson convened a court of inquiry Thursday to examine allegations, leveled by Morton and his lawyers, that Anderson hid evidence that could have spared Morton from the murder conviction and almost 25 years in prison.

Jefferson also appointed District Judge Louis Sturns of Fort Worth to conduct the court of inquiry, a rarely used feature of the Texas criminal code designed to determine whether state laws have been broken.

"This is a historic moment for Texas justice," said John Raley, a Houston lawyer who has represented Morton for free for the past eight years.

The court of inquiry was the latest in a series of extraordinary legal events that began last summer when DNA tests, conducted after a six-year court fight with current District Attorney John Bradley, pointed to another man as the killer of Morton's wife, Christine.

Brandi Grissom posts, "Fort Worth Judge to Lead Ken Anderson Court of Inquiry," at the Texas Tribune.

Tarrant County state district Judge Louis Sturns will lead a court of inquiry to investigate allegations of criminal prosecutorial misconduct against former prosecutor Ken Anderson, who saw to the wrongful murder conviction of Michael Morton in 1987.

Morton was exonerated of his wife's 1986 bludgeoning death in October after DNA tests confirmed his innocence. Defense lawyers have alleged that the wrongful conviction would not have happened and Morton would not have lost 25 years in prison if Anderson, who is now a Williamson County state district judge, had not deliberately withheld evidence that indicated his innocence at the time of the 1987 trial.

And:

Last week, Harle recommended that Justice Jefferson appoint such a court after he decided there was probable cause to believe that Anderson should face charges of contempt of court, tampering with evidence and tampering with government records.

"The record contains evidence that a public official may have committed serious misconduct, and that this misconduct may have contributed to the wrongful conviction and lengthy incarceration of ... Michael Morton, now known to be factually innocent," Harle wrote in his order.

In a letter to Sturns today, Texas Supreme Court Chief Justice Wallace Jefferson advised the judge that he has been assigned to oversee the unusual court proceeding. Sturns, 62, is a Republican from rural East Texas and previously served on the Texas Court of Criminal Appeals. He first ran for a Tarrant County judicial post and won in 1986. In an autobiographical video on his campaign website, Sturns says, "The presumption of innocence means a lot. It means that I have to do my best to make sure that I set aside preconditions or ideas that I have." He goes on to say that religion plays a role in his life and he serves as chairman of the board at his church.

"Texas judge faces inquiry on wrongful conviction," is the AP filing, via CBS News.

A proceeding known as a "court of inquiry" will determine whether Judge Ken Anderson, when he was a district attorney, failed to turn over all documents that would have supported the defendant's claims of innocence and whether he tampered with evidence and court records, according to the order signed by Texas Supreme Court Chief Justice Wallace Jefferson.

Courts of inquiry can be convened when legal officials and other public servants are accused of wrongdoing, and have the power to hear evidence and summon witnesses. It is similar to a grand jury proceeding, but Anderson will have the chance to defend himself against evidence presented.

Attorneys for Michael Morton say they hope the process results in criminal charges against Anderson. Morton, 57, spent 24 years in prison before new DNA testing showed he didn't kill his wife, Christine, who was beaten to death in the couple's bed on Aug. 13, 1986. He was freed in October.

Morton's legal team accuses Anderson, the case's lead prosecutor, of keeping key facts from the defense. That included statements from the couple's then-3-year-old son that he witnessed the murder and his father wasn't responsible, and the fact that Christine Morton's credit card was used after her death. The attorneys say Anderson did not turn over all evidence police had collected, even after presiding judge William Lott explicitly ordered him to do so.

Morton, who claimed an intruder broke in and killed his wife after he left for work, was subsequently convicted on circumstantial evidence and sentenced to life in prison. Lott has since died.

"Special Court to Probe Claims Ex-DA, Now a Texas Judge, Concealed Murder Case Evidence 25 Years Ago," by Martha Neil at the ABA Journal.

Michael Morton, now 57, was freed from prison last year after serving 24 years for the murder of his wife, according to the AP. He had maintained his innocence, saying that she was slain by an intruder after he left for work, and DNA evidence finally showed that he had not committed the crime.

Anderson, who has apologized for what he calls a systemic failure but says he did nothing wrong as a prosecutor, is accused of concealing from the defense exculpatory evidence.

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

Florida's Execution Costs Re-Kindle Death Penalty Debate

That's the title of Eric Glasser's report at WTSP-TV.

It took more than 30 years for Robert Waterhouse to even have a date with death, sitting on death row as taxpayers spent millions on appeals, hearings, and delays.

It's just one reason why Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, believes life without parole is a better, less expensive alternative.

He says it's a policy that would save Florida an estimated $51 million per year to spend on victim services programs and resources to solve some of Florida's 12,000 homicide cold cases.

"Those families have gotten no justice," said Elliott. "Those killers have literally gotten away with murder."

He also points out that Florida leads the nation in the number of death row inmates mistakenly convicted.

"In Florida, we've had more than 23 people exonerated off our death row," he said.

Last night's execution in Florida was the state's first in 2012; its 72nd execution since 1979.  To date, there have been four executions this year; 1,281 post-Furman executions since 1977.

First RJA Hearing Concludes in North Carolina

"Death-Penalty Racial Law Is Tested," is Ashby Jones' report for the Wall Street Journal.

The fate of one death-row inmate in North Carolina—and possibly dozens more—is now in the hands of a judge following a 2½-week hearing that for the first time tests a law that would let an inmate off death row if race is found to have been a "significant factor" in the sentence.

In a crowded courtroom here, Cumberland County Judge Gregory A. Weeks heard closing arguments Wednesday on a case involving the death sentence of Marcus Reymond Robinson, a black man convicted in 1994 of murdering a 17-year-old white man during a robbery.

Judge Weeks's challenge: to answer the nebulous question of whether race likely played an improper role in jury selection on capital cases around the time of Mr. Robinson's trial.

The decision, which should come in the next few weeks, will likely set a precedent for what happens with the state's other death-row inmates. Nearly all of North Carolina's 157 death-row inmates, including roughly 60 white inmates, have challenged their death sentences on racial-bias grounds.

And:

On its face, the law doesn't require a defendant to prove that bias took place in his case specifically. An inmate need only prove, with statistics, that race weighed heavily in prosecutors' and jurors' decisions concerning the death penalty "in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed."

The only other state with a similar law is Kentucky, but defense lawyers there haven't used it much because they must show strong evidence of discrimination in an individual case and are barred from basing claims solely on statistics.

"Racial Justice Act case hearing ends," by Anne Blythe in Raleigh's News & Observer.

A hearing in the first Racial Justice Act case ended with a flourish of historic references Wednesday as prosecutors and defense lawyers spoke of Athenian justice, race relations in the armed forces and famous civil rights cases in their closing arguments.

But as Cumberland County Superior Court Judge Gregory Weeks mulls his ruling, he may spend more time considering statistics and numbers than arguments.

On Wednesday, after two and a half weeks of testimony in Fayetteville from statisticians, researchers, prosecutors and District Court judges, the closing arguments concluded the hearing on a request for sentencing relief from Marcus Reymond Robinson, a death row inmate.

And:

The hearing included testimony from dueling statisticians and researchers.

Defense attorneys used a sweeping study of capital cases in North Carolina done by Michigan State University law school researchers to bolster their claims.

That study found that qualified black jurors - those not released for cause, such as opposition to the death penalty - were struck by prosecutors at nearly twice the rate as qualified white jurors. In Cumberland County, they were struck at 2.6 times the rate, according to the researchers.

Prosecutors called prosecutors, judges and a political scientist to bolster their claims that race is not among their considerations when weighing whether to strike a potential juror.

"First Racial Justice Act hearing concludes in Fayetteville," by Paul Woolverton in the Fayetteville Observer.

Researchers at Michigan State University studied peremptory challenges by prosecutors in 173 death penalty trials from 1990 to 2010 and concluded prosecutors peremptorily struck black potential jurors more than twice the rate as they struck non-black jurors.

In Robinson's trial, the rate for blacks was 3.5 times that of non-blacks.

Thompson and Colyer contend that there are legitimate, non-race-based reasons for the jury strikes. They also say the Michigan State study had severe flaws and the researchers were not qualified to assess jury selection in capital murder trials.

Robinson's lawyers say the reasons given to strike a black juror often are pretextual excuses to mask racial bias. And, regardless, they said, even when the non-racial reasons are accounted for, blacks were still struck at twice the rate as whites across the state.

"If you're black, you're much less acceptable to the state," said Durham lawyer Jay Ferguson for Robinson.

Senior Resident Superior Court Judge Greg Weeks, the presiding judge, said he would give the lawyers four to five weeks to submit legal briefs and he will make a ruling sometime later.

The Greenville Reflector carries the AP filing, "Closing arguments conclude in Racial Justice case."

"We hope that what this case will do, as the first case of the Racial Justice Act, is to move us to a point where we do open up that process, and where we do eliminate the harm that's done to the system itself by limiting and excluding folks from serving on a jury as a result of race," said lawyer James Ferguson II of Charlotte on behalf of Robinson.

Prosecutor Cal Colyer had to pause a few times during his presentation to remain composed.

"''The goal may be admirable with respect to this legislation, but it is an insult to the prosecutors, to the judges, and yes, even to the defense attorneys in this case," Colyer said.

The Fayetteville Observer provided Daily Coverage of the RJA hearing; all written by Paul Woolverton.  Here are links to the daily reports:

• Retired statistics professor disputes prosecution's testimony (2/15)
• Political scientist says juror ideology, not racism, can explain study's results (2/14)
• Forsyth County lawyers disagree on Racial Justice Act's effect (2/12)
• Defense tries to discredit testimony of state expert witness (2/11)
• Prosecution statistician says white and black jurors seated at same rate (2/10)
• Lawyers debate statistic expert's testimony in Racial Justice Act hearing (2/9)
• Ruling blocks judge's answer in Racial Justice Act hearing (2/8)
• Ex-Cumberland County prosecutor John Dickson disputes racial bias claims (2/8)

Earlier coverage of the North Carolina RJA hearing begins at the link.  Related posts are in the race index.

More From TDCJ

The Huntsville Item reports, "TDCJ has enough drugs to carry out executions in 2012," by Cody Stark.

Despite continuing shortages of the drug used in lethal injection executions in Texas, the Texas prison system has enough to carry out scheduled executions.

According to a recent report in The Guardian, the Texas Department of Criminal Justice is running low in one of these drugs.

And:

TDCJ spokesman Jason Clark said the agency could not disclose more information on the subject because of a ruling in the case the Texas Department of Public Safety vs. Cox Texas Newspapers, which protects public disclosure of highly intimate facts, but he did issue a statement on The Guardian’s report.

“There are several inaccuracies in the Guardian article; however, consistent with past practice, the agency will only confirm that we have enough drugs on hand to carry out all scheduled executions,” Clark said.

There are six executions on the schedule to be carried out this year in Texas. The next offender set to die is Anthony Bartee on Feb. 28. Bartee, a convicted rapist, was found guilty and sentenced to death for the 1996 murder of a 37-year-old man in San Antonio.

Earlier coverage of the lethal injection drug shortage begins at the link.

Ohio Justice Pfeifer

"Ohio justice rejects death penalty law he wrote," is the AP post written by Andrew Welsch-Huggins, via the New York Times.  It's also available via the San Francisco Chronicle.  Here's an extended excerpt:

As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.

It's not uncommon for sitting judges to change their mind on the death penalty — U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" — but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.

"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that."

After the U.S. Supreme Court declared capital punishment unconstitutional in 1972, states spent several years rewriting their laws; those enacted by Florida, Georgia and Texas ultimately met the court's threshold for constitutionality. Other states had to follow those models to have their laws upheld. Ohio's first attempt, in 1974, was found unconstitutional, but the second try, when Pfeifer was chairman of the Senate Judiciary Committee, was enacted in 1981 and has never been successfully challenged. Lawmakers pledged at the time to draft a law reserved for the most heinous murders.

At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.

Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing.

Pfeifer, a Republican, has always charted his own course on the court. For years he was a member of a foursome — two Democrats and two moderate Republicans — dubbed "the Gang of Four" for a series of 4-3 rulings that critics said were anti-business and favored Democrats and their causes. He's also not afraid of mud-slinging: In his spare time, the lifelong farmer raises Black Angus cattle.

Pfeifer had been on the court only two years when, in 1994, he dissented on a vote upholding the death penalty for a man sentenced to death for shooting his ex-girlfriend at the elementary school where she worked as a custodian. Already, he appeared to be having his doubts, writing that "the death penalty is special" and should be "reserved for those committing what the state views as the most heinous of murders." That defendant, John Simko, died of natural causes on death row in 1997.

Pfeifer made similar statements in court opinions over the years. He took his position public in 2001, calling unsuccessfully for an independent panel to review the law. He began to complain that prosecutors were overusing the statute, seeking death sentences in domestic quarrels that went bad instead of for the worst of the worst killers.

He often cites the case of Richard Nields, who murdered his girlfriend in their southwestern Ohio home in 1997, then stole her car and travelers' checks, as an example of overreaching by prosecutors.

"This case is not about robbery," Pfeifer wrote in his dissent to the court's 2001 decision upholding Nields' death sentence. "It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them." Ultimately, Gov. John Kasich agreed and last year changed Nields' sentence to life without parole.

In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row.

Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.

Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others and upheld death sentences while disagreeing on aspects of the decision in four other cases.

The ABA Journal posts, "Ohio Justice Who Helped Write Death Penalty Law Now Opposes It."  It's by Debra Cassens Weiss.

An Ohio Supreme Court justice who helped write the state’s death penalty law as a state legislator in 1981 is now speaking out against it.

In December, Justice Paul Pfeifer testified in favor of a bill to abolish capital punishment, the Associated Press reports. "I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," he said.

Earlier coverage of Ohio Supreme Court Justice Pheifer on capital punishment begins at the link.

Texas' Lethal Injection Stock

 Today's Austin American-Statesman reports, "Prisons running low on execution drugs again, but prison agency withholds details."  It's by Mike Ward.

A new report surfaced on Tuesday that Texas again might be running out of a key drug used to execute its condemned criminals, but state prison officials said that they have enough to carry out the next six scheduled executions.

What happens after that might be anyone's guess, thanks to a new no-disclosure policy imposed by the Texas Department of Criminal Justice on details about the execution drugs.

Two years ago, the prison system revealed its drug supplier and the amount of drugs on hand after Texas Attorney General Greg Abbott issued an opinion saying it was public information. The prison system had sought to keep the information secret, arguing that releasing details about the drug supply might trigger violent protests outside the execution chamber or embolden death penalty opponents.

Prison system spokesman Jason Clark said Tuesday that the agency is seeking another opinion from the attorney general on the execution drug information "because the law has changed and due to changing circumstances."

Specifically, Clark said, a state Supreme Court ruling last July could have changed the situation. The case, filed by the Austin American-Statesman and other newspapers, sought travel vouchers for the governor's security detail under the Texas Public Information Act.

In that case, the Supreme Court ruled, for the first time, that safety concerns might trump laws mandating public disclosure of information that reveals how a government spends taxpayer money.

Texas operates the busiest death chamber in the United States, executing more than twice as many prisoners last year as any other state — 13 in all. Its execution practices have made it a target of death penalty opponents for years.

The Guardian, a British newspaper, reported Tuesday that Texas has only enough pentobarbital on hand to complete six executions "and may be incapable of carrying out further death sentences after June."

And:

Texas faced the same problem 13 months ago, when the sole U.S. manufacturer of the sedative sodium thiopental permanently halted production after authorities in Italy, where it was made, demanded a guarantee that it would not be used in executions — a promise the company said it could not give.

The Guardian report is, "Texas executions threatened as stocks of death penalty drug run low," by Ed Pilkington writing in New York.

The dwindling supplies in the nation's most prolific death penalty state underline the crisis that is sweeping the 34 states that still have the death sentence on their books. Last summer, Lundbeck, the Danish company that makes pentobarbital under the trademark Nembutal, placed strict restrictions on its distribution to prevent it falling into the hands of US executioners.

Georgia, the state that caused outrage in September when it put to death Troy Davis despite considerable doubts about his guilt, is also running low on stocks of the drug it used to kill him. It has only enough pentobarbital to kill four more prisoners – the same number of executions as it carried out in 2011.

The severity of America's lethal injection drought has been uncovered by the human rights group Reprieve. Using freedom of information appeals, its investigator Maya Foa has calculated the remaining stocks in Texas and Georgia of pentobarbital, a barbiturate used to put prisoners to sleep before they are administered a separate drug to stop their heart.

Her calculations show that Texas has 27 vials of Nembutal left in its stocks, with each vial containing 2.5g of the sedative. The state needs two vials to inject into each condemned prisoner, and a further two as a back-up in case of problems with the first, as outlined in its official execution procedures.

That is sufficient for 6.75 executions.

The Texas Department of Criminal Justice declined to confirm how much pentobarbital it had in its stores, saying it was seeking to keep the quantity secret "for security reasons".

Similarly, Georgia has 17 vials of pentobarbital left, Reprieve has calculated – just over four executions' worth.

"These shows that the restrictions on sale of medical drugs to US corrections departments are starting to bite. States that practice the death penalty are now reaching a desperate situation," Foa said.

"It's getting harder and harder for them to get hold of these drugs and eventually they will be forced to recognise that medicines should not be used to execute people."

Difficulties over lethal injections has already put a halt to executions in several other states. California has a moratorium in place until at least 2013 as a result of legal wrangling over the procedure, while Ohio has also been forced to put its executions on hold because it was found by the courts to be straying from its own protocols in administering the drugs.

The question hanging over death rows across the country is what happens when states like Texas run dry of pentobarbital. Will they move on to a new alternative sedative in the hope of bypassing restrictions on sales of the medicines, or will they try to procure Nembutal through circuitous routes?

Legitimate channels through which the drug can be obtained are fast closing. A ban has been imposed since last December across the European Union on selling the constituent parts of the lethal injection to US prisons.

The UK's Telegraph has, "Drug shortage threatens Texas death sentences," by Amy Willis, reporting from Los Angeles.

The drug shortage means the state, the powerhouse of judicial killings in the US, is only able to carry out its scheduled executions until June, human rights group Reprieve has calculated.

Reprieve said Georgia is also suffering a supply crisis with only 17 vials of pentobarbital remaining.

Six executions are scheduled in Texas over the next four months but beyond that quantities of pentobarbital, one of three drugs needed to carry out the lethal punishments, will no longer be sufficient.

Texan officials refused to confirm any shortages of the drug citing “security reasons”.

Earlier coverage of the Texas drug switch and TDCJ secrecy is at the links.  Related posts are in the lethal injection, international, and TDCJ indexes.

From Nebraska

"Killer fights execution on 2 fronts," is Joe Duggan's Omaha World-Herald report.

Condemned killer Michael Ryan asked a judge Monday to throw out his death sentence, arguing that the state intends to carry out the lethal injection using a stolen Swiss drug that fails to meet U.S. purity standards.

Ryan also plans to ask the Nebraska Supreme Court to stay his execution, scheduled for March 6. Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy who represents Ryan, said he will file the motion with the high court on Tuesday.

Soucie filed a 116-page motion late Monday in Richardson County District Court in Falls City, Neb. Ryan, a former religious cult leader, was convicted of killing two of his followers in 1985 at an encampment near the Richardson County village of Rulo.

A spokeswoman for Nebraska Attorney General Jon Bruning said Monday night that the motion was being reviewed. She offered no further comment.

Ryan's new claim raises legal challenges to the state's authority to use lethal injection on a death row inmate sentenced to die by electrocution.

Nebraska abandoned the electric chair in 2008 after the state Supreme Court ruled it was cruel and unusual punishment. The next year the state adopted lethal injection for executions.

Ryan's motion also repeats past contentions that the Nebraska Department of Correctional Services was conned into buying a stolen death drug late last year from an Indian pharmaceutical broker. The Swiss manufacturer of sodium thiopental has said it didn't intend the drug to be sold for use in lethal injections.

Using an illegally obtained drug would violate the state's lethal injection procedures, which call for the drugs to be obtained through the department's pharmaceutical supervisor or another "appropriate" source, Ryan's motion states.

"Attorney asks for death sentence to be commuted," is the Lincoln Journal Star by Nicholas Bergin.

A defense lawyer Monday asked for Michael Ryan's death sentence to be commuted to life without parole.

The Nebraska Supreme Court has set a March 6 execution for Ryan, who was convicted in 1986 of murdering James Thimm during ritualistic torture at a farm near Rulo.

In response, defense attorney Jerry Soucie of the Nebraska Commission on Public Advocacy filed a 116-page motion for post-conviction relief with the district court of Richardson County, where the crime took place.

Soucie plans Tuesday to to ask the state Supreme Court to issue a stay of execution, he said in an email.

The district court filing argues Ryan never had the chance to present grounds for relief related to the planned method of execution -- lethal injection -- because it wasn't used in Nebraska during Ryan's prior proceedings.

The filing argues that carrying out Ryan's sentence in the wake of state legislators changing Nebraska's execution method from electrocution to lethal injection in 2010 would violate the law.

Earlier coverage of the Nebraska lethal injection challenge begins at the link.

Attorney Fees & the Exonerated

AP reports, "Attorney: Lawyer earned fees paid by exonerees," by Betsy Blaney.  It's via the Austin American-Statesman.  Here's an extended excerpt:

An attorney credited for pushing a law that made Texas the most generous state in the nation in compensating the wrongly convicted earned his fees by fighting to get two clients as much money as possible after they were exonerated by DNA, his lawyer said Monday.

Opening statements were held in the State Bar of Texas' lawsuit against Kevin Glasheen. The bar association has accused Glasheen of charging the men unreasonable fees for obtaining compensation, but his lawyer said the pair received more money than they would have under the old compensation system.

"These two clients (of Glasheen's) are millions of dollars better off because of Kevin Glasheen fighting for them," Jim Hund said. "This was not an easy fight. It was a knock-down, drag-out fight."

Glasheen received millions of dollars in compensation for 12 men cleared after DNA evidence showed they were innocent of charges that put some in prison for more than two decades. Two of the men, Steven Phillips and Patrick Waller, filed complaints with the state bar, saying Glasheen's 25 percent contingency fee was too much. The state bar then sued Glasheen, saying his fees were illegal and unconscionable and constituted professional misconduct. Lawyers charging contingency fees usually only get paid if their clients win and receive compensation.

But Phillips and Waller were guaranteed millions under a 2009 law — pushed by Glasheen — that upped compensation for the wrongly convicted from $50,000 to $80,000 for every year of confinement and provided an annuity for lifetime income. Phillips' annuity was set at $3.7 million, or $11,624 per month, and Waller's was $2.8 million, or $6,424 per month.

State Bar of Texas attorney Paul Homberg III said in his opening remarks that the problem was that Glasheen got 25 percent not only on the lump sum each man received but also on their annuities. He called that "outrageous."

"We're not here to say Kevin Glasheen is a bad person or a bad lawyer," Homberg said. "He's an able lawyer. But, judge, with millions of dollars on the table, Mr. Glasheen had some blinders on."

If the court determines Glasheen committed misconduct, he could face punishments ranging from a public reprimand to disbarment.

The bar's lawsuit also accuses Glasheen of fee sharing, which has been illegal in Texas since 2005.

Glasheen collected about $5 million in fees from clients, keeping $3.5 million for his firm and paying the rest to Jeff Blackburn, the chief counsel for the Innocence Project of Texas. Glasheen said in a statement emailed last week that Blackburn helped on the cases because of his expertise and experience in wrongful convictions.

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

More From Montgomery County

Today's Houston Chronicle reports, "Montgomery County tries team approach to help mentally ill."  It's by Renée C. Lee.  Here's an extended excerpt:

Montgomery County has begun providing mentally ill defendants with a professional team to help them with legal and personal needs in an effort to keep them out of jail.

The county's Managed Assigned Counseling Mental Health program, launched last month, is the second in the state. Lubbock County started its program, which handles all indigent defendants, a few weeks earlier.

State lawmakers authorized the new model of indigent defense last year. It enables judges to remove themselves from assigning and paying attorneys to represent the poor.

Instead, managed assigned counseling pairs defendants with a specially trained attorney, a case manager coordinator and a case worker. Together, they walk defendants through the criminal process and assist them with obtaining community services, such as counseling, housing and other services.

The team continues to work with defendants for up to six months after their case ends.

"Our goal is to keep them from reoffending and to give them whatever skills or assistance they need," said state District Judge Cara Wood, who helped develop the program.

In fast-growing Montgomery County, courts and attorneys have little time to spend on mental health cases, Wood said. The program gives the county a way to ensure the mentally ill are treated fairly.

The county received a $487,000 grant from the Texas Indigent Defense Commission and matching funds from Commissioners Court to develop the program. The grant also will fund a new mental health court docket to monitor defendants who are on probation. Wood and Montgomery County Court at Law Judge Mary Ann Turner will oversee the docket.

A managing attorney, Sara Forlano, oversees legal education requirements, court appearances and performance evaluations for the attorneys who participate.

Earlier coverage of the Montgomery County program is at the link.  Related posts are in the mental illness index.

11th Circuit Hears Troubling Alabama Case

"Condemned Ala. man claims evidence clears his name," is Greg Bluestein's AP filing.  It's via the Athens Banner-Herald.

An Alabama death row inmate's attorneys came to the federal appeals court in Atlanta on Monday with a ream of new evidence they say helps exonerate their client. But the three-judge panel was more than a little skeptical about the arguments.

Billy Kuenzel was convicted of the November 1987 murder of Linda Jean Offord, a convenience store clerk in Sylacauga, Ala., and sentenced to die a year later. The 49-year-old refused to take a plea deal and has long maintained his innocence, and his attorneys say they uncovered new evidence in 2010 that backs his claim.

That's where they run into a legal roadblock. Prosecutors insist Kuenzel had a fair trial, and say the new information isn't enough to prove his "actual innocence," a stringent legal standard. Kuenzel's attorneys, though, asked the 11th U.S. Circuit Court of Appeals to give them a chance to "salvage what time remains of his life."

All three judges on the panel on Monday did little to boost Kuenzel's hopes.

Circuit Judge J.L. Edmondson raised concerns about whether Kuenzel missed key deadlines to file the appeal, and said "it's close to impossible" to overturn a federal judge's ruling against his client. And Chief Judge Joel Dubina suggested the new details wouldn't be enough to change any juror's mind.

"The jury heard all of this, weighed all the evidence, chose who to believe, and found against your client," Dubina said.

Defense attorney David Kochman quickly responded: "Respectfully, the jury did not hear all the evidence."

"Questions loom in Alabama death-penalty case," is by Bill Rankin for the Atlanta Journal-Constitution.

Kochman said Kuenzel's case is unlike no other, largely because his initial post-conviction appeal was found to have been filed six months too late, which has barred the introduction of newly discovered evidence.

In the meantime, Kuenzel's lawyers have uncovered grand jury testimony that throws into question the trial testimony of a key state witness and have learned that Venn, shortly before Offord's killing, may have borrowed a .16-gauge shotgun -- the kind used to kill Offord -- from a man who later told his wife he was worried the shotgun may have been the murder weapon.

Innocence claims such as those raised by Troy Anthony Davis, executed last year in the killing of a Savannah police officer, face enormous legal hurdles. Davis, after being denied a hearing for years, was finally granted one through an extraordinary ruling by the U.S. Supreme Court. Even then, a judge rejected his case.

In 1995, the U.S. Supreme Court said condemned inmates asserting their actual innocence have to show "it is more likely than not that no reasonable juror would have found [the inmate] guilty beyond a reasonable doubt." Such inmates must support their innocence claims "with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence -- that was not presented at trial."

On Monday, all three appellate judges indicated Kuenzel had not cleared such a threshold.

Editorial Support for Court of Inquiry

Today's Austin American-Statesman carries the editorial, "Possibility of misconduct enough to merit full Anderson inquiry."

It's been four months since Michael Morton was released from prison, exonerated of charges of murdering his wife, Christine. Michael Morton spent 25 years in prison. Attaining his freedom was but one phase in Morton's search for justice; another is under way.

And this new phase focuses on former Williamson County District Attorney Ken Anderson and whether he hid evidence that could have led to Morton's acquittal. Morton's search for greater justice has left Anderson, now a state district judge in Georgetown, with a search of his own: to clear his name and reputation.

State District Judge Sid Harle clearly saw what was at stake for Morton and Anderson when he rightly decided Friday to request a special court of inquiry to examine Anderson's actions in Morton's case. There is probable cause, Harle said, that Anderson violated state law when he prosecuted Morton.

Texas Supreme Court Chief Justice Wallace Jefferson now will decide whether to grant Harle's request. If he agrees with Harle — and a respect for justice demands that he must — he will name a state district judge to oversee the special court of inquiry.

"Inquiry needed in Morton case," is today's Dallas Morning News editorial.

Michael Morton committed no crime the morning of Aug. 13, 1986, which started out as innocently as any other: out the door at 5:30 a.m. for his job as a grocery store manager. The public knows that today.

What we don’t know is whether a crime was committed in putting Morton in prison for nearly 25 years in the beating death of his wife that summer morning. While Morton’s innocence is unquestioned, former District Attorney Ken Anderson must account for disturbing questions about how he orchestrated a case he could sell to a jury and why he withheld exculpatory evidence before trial and during years of appeals.

For that reason we welcome a state judge’s decision in Williamson County last week recommending a rare court of inquiry into Anderson’s behavior.

And:

Jefferson’s decision also could help lay the foundation for reforms in the Texas criminal justice system. With the nation’s longest list of DNA-proven exonerations, the state must build in more safeguards against substandard or dishonest police and prosecutorial work.

The Constitution guarantees that a defendant has access to evidence that could be helpful to the defense, as a check against treachery by government officials. Many states ensure that standard is met through a mandatory “open file” system whereby defense and prosecuting attorneys exchange information before trial. The benefits of that system could become clearer with a detailed examination of Anderson’s prosecution of Morton.

Earlier coverage of the Michael Morton case begins at the link.

Another Florida Execution Date for Long Term Death Row Inmate

Florida Today carries the AP report, "Inmate on death row since 1980 set to die."  It's by Mitch Stacy.

A twice-convicted murderer who has lived on Florida’s death row for more than three decades is scheduled to die by lethal injection this week for killing a St. Petersburg mother — but like many executions, why he is being killed now and why it didn’t happen years ago are both something of a mystery.

If 65-year-old Robert Brian Waterhouse is executed Wednesday at Florida State Prison near Starke, he will have lingered on death row longer than any of the previous 276 people executed by the state, according to the Department of Corrections. He’s spent more than 31 years mostly by himself in a 6-by-9-foot cell as his various appeals worked their way through the courts.

Just 18 of the 395 people currently on death row have been there longer than Waterhouse, who was sentenced in September 1980 for raping and killing 29-year-old Deborah Kammerer.

No one in Gov. Rick Scott’s office would talk in detail about the process that led him to pick Waterhouse over others whose appeals have run their course. It’s the third death warrant Scott has signed since taking office in January 2011.

And:

The attorney general’s office is charged with keeping track of the status of cases, and generally responds to requests from the governor regarding individual inmates who’ve been through their major appeals and the clemency process, and would likely be unsuccessful with any appeals filed after the death warrant is signed. Typically, they’re inmates who haven’t initiated any new litigation in years.

Craig Trocino, who handled death row appeals for years before going to work for a University of Miami law school clinic, said the “incredibly secretive” nature of the governor’s selection process has always disturbed death penalty opponents.

“There was no logic to any it, as far as we could tell, and nobody was speaking about it,” Trocino said.

“If it’s really above-board, the governor would open his book and say, ‘This is the procedure I take in determining this.’”

Last year, Florida executed Manual Valle after more than 33 years on death row.  Supreme Court Justice Breyer's dissent to a rejected stay motion discussed the lengthy incarceration of death sentenced inmates.

Reggie Clemons is Troy Davis

That's the title of David Love's latest at Huffington Post.  He's the executive director of Witness to Innocence.

The case of Reggie Clemons represents everything that is wrong with the death penalty and the U.S. criminal justice system.

His case reminds us of Troy Davis, a black man who was executed by the state of Georgia in September, despite strong evidence of innocence, no physical evidence, another suspect and unreliable witnesses, not to mention worldwide protests.

In 1993, Clemons was sentenced to death in St. Louis, Missouri as an accomplice to the 1991 murder of Julie and Robin Kerry -- two white women who plunged to their deaths off the Chain of Rocks Bridge into the Mississippi River. He was 19 at the time of the killings, with a clean record.

He was beaten by police, denied a lawyer, and coerced into making a false confession. As Amnesty International reported, there was no physical evidence linking Clemons to the murders. Even the prosecution admitted that Clemons did not murder the victims, nor did he plan the crime.

And:

Police torture and false testimony, crooked prosecutors and a stacked jury, incompetent defense counsel and missing evidence. Let's not forget raw racism. These are the key ingredients of a horrid dish called American justice. And sadly, this is why Reggie Clemons is facing execution. This is a prime example of what happens when criminal behavior in the police station and the courtroom sends an innocent man to his death. But unlike Troy Davis in Georgia, Cameron Todd Willingham, Ruben Cantu, Carlos DeLuna, or Larry Griffin in Missouri, Reggie Clemons is still alive. There is still time to save him. We can fix this.

On the other hand, we cannot fix our system of capital punishment. According to the Death Penalty Information Center, since 1973, 140 innocent men and women have been freed from death row in 26 states, each spending an average of nearly 10 years in prison awaiting execution.

Earlier coverage of Reggie Clemons' case begins at the link.

A Harris County Sentencing Hearing

Today's Houston Chronicle reports, "Lawyers: HPD officer's killer should get life in retrial."  It's by Brian Rogers.

Carl Wayne Buntion has stayed out of trouble for more than two decades, his attorneys say, so he should face a life sentence, not execution, for gunning down a Houston police officer in 1990.

But it was easy for the 68-year-old to keep his nose clean, says the officer's widow - he was by himself in a death row cell.

"I think that's a load of horse manure," said Maura Irby. "He's intelligent enough to not misbehave, so on the off chance he won an appeal, he could get out."

Opening arguments in the retrial of the punishment phase of Buntion's capital murder trial are expected Wednesday.

Harris County District Attorney Pat Lykos said last year that she intended to seek the death penalty in several cases like Buntion's that have to be retried because an appeals court ruled the original juries were not able to properly consider defense evidence.

And:

"If the jury follows the law, they're going to answer 'no' to the issue of whether he is a future danger," said Casey Keirnan. "Mr. Buntion has been in prison for 22 years and hasn't had a single write-up."

To secure a death penalty, prosecutors have to prove several issues including that Buntion is more likely than not going to commit criminal acts of violence in the future and be a continuing threat to society.

"And 'society' means prison, because that's where he is," Keirnan said.

If jurors agree with Buntion's lawyers, he will get a life sentence. And under the rules as they were in 1990, he could be eligible for parole, a development that prosecutors fear and defense lawyers scoff at.

Even if Buntion is gifted with a life sentence, Keirnan said, he will die in prison.

"The reality is he will never, ever, ever make parole," the lawyer said. "There is no 'mandatory parole' and they will never let him out."

Earlier coverage of the Harris County case is at the link. Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez.

More From Utah

Utah Pulse posts, "No Execution Changes Coming in 2012," by Bob Bernick.

Utah lawmakers will likely not deal with a change in Utah’s murderer execution method during the 2012 Legislature.

“The issue has been discussed,” said Ric Cantrell, chief of staff of the Utah Senate.

“But there is no bill file for it, there is no sponsor, there is no immediate need,” said Cantrell.

The bill filing deadline has passed for the 45-day general session, which ends March 8. A death penalty bill could be filed, but only with a majority vote of either the House or Senate.

Cantrell and Sen. Lyle Hillyard, R-Logan, an attorney who often carries bills desired by state court personnel and prosecutors, told UtahPolicy that the governor’s Commission on Criminal and Juvenile Justice has recently discussed Utah’s death penalty problems.

And:

Accordingly, Utah officials say, CCJJ officials have talked to leading legislators about whether state law should be changed to have a firing squad execution as a fall back procedure if the lethal drugs can’t be obtained.

"Utah allows firing squad request to avoid execution delay," is the Reuters filing by James Nelson.  It's via the Chicago Tribune.

Utah prosecutors have reluctantly allowed a condemned killer to seek execution by firing squad rather than by lethal injection, saying they want to avoid further delays in putting him to death.

The request by Michael Archuleta, 49, convicted of the 1988 slaying of a college student, follows recent talks among state lawmakers and criminal justice officials about possibly returning to firing squads as an execution option in light of the current shortage of lethal-injection drugs.

If Archuleta gets his way, he would ultimately become only the fourth to be executed by shooting in the United States -- all of them in Utah -- since the U.S. Supreme Court reinstated capital punishment in 1976. The last was in June 2010.

Utah, the last state to carry out executions by rifle volley, officially did away with the practice in 2004 under pressure from death penalty opponents and human rights activists who vehemently opposed firing squads as barbaric.

But the statute to abolish firing squads carved out an exemption for those death row inmates, like Archuleta, who had already requested it as their preferred manner of execution.

Earlier coverage of the scheduled Utah firing squad execution begins at the link.

In the Connecticut General Assembly

"State may consider repealing the death penalty" is by JC Reindl for the Connecticut newspaper, the Day.

With both killers in the Cheshire home invasion facing death row, legislation may now come forward that would abolish the death penalty in Connecticut for future crimes.

State Sens. Edith Prague of Columbia and Andrew Maynard of Stonington were the two Democratic legislators who abruptly changed their minds last year about voting to end capital punishment after emotional meetings with Dr. William Petit, the lone survivor of the 2007 triple slaying.

At that time, only one of the murderers, Steven Hayes, had been tried and convicted. The trial and sentencing of Joshua Komisarjevsky would not finish until after the General Assembly session, and the state senators said they didn't want to affect the outcome of the proceedings out of respect for the Petit family. "I just feel that if there is anything I could do to help this man at all, I've got to do it," Prague said when explaining her decision.

So a bill that would have "prospectively" ended the death penalty for future crimes didn't come up for a vote in either legislative chamber - despite strong support in the House - as Prague and Maynard's switches made the Senate tally 19 to 17 against it.

With the new legislative session under way, Maynard says his vote is back in the repeal column because the last home invasion trial is over. "If the vote comes forward today, I will vote for repeal," said Maynard. Last year, with the trials unfinished, "I just didn't think we could have had a dispassionate debate," he said.

Earlier coverage from Connecticut begins at the link.

 

California Roundup - Victim's Family Speaks Out

"California's death penalty law: It simply does not work," is the title of Ron Briggs' OpEd in the Sunday edition of the Los Angeles Times.  It's subtitled, "We believed the Briggs initiative — the death penalty measure we wrote in 1977 — would bring greater justice. We were wrong."  Here's the beginning of this must-read:

In 1977, my dad, former state Sen. John Briggs, my brother-in-law and I got together to discuss California's death penalty. We agreed it was ineffective and decided a ballot initiative was needed to expand the number of murder categories eligible for capital punishment. We felt such changes would give prosecutors better tools for meting out just punishments, and that a broadened statute would serve as a warning to all California evildoers that the state would deliver swift and final justice.

We thought we were creating a national model for capital punishment.

On a shoestring budget we collected more than 1 million signatures to put the proposition on the ballot. Half the signatures came via first-class business reply mail, which my wife, Kelly, and I manually processed. We didn't have laptops or self-adhesive stamps then, although we did have a bomb scanner, which we'd been trained to use by the FBI after they discovered a terrorist plot to kill my dad.

On Nov. 7, 1978, California voters passed the Briggs initiative on the death penalty.

Back then, my future brother-in-law was Dad's district chief of staff and I proudly served as my father's personal aide. Today Dad is retired, my brother-in-law is a California Superior Court judge and I am in my second term as a county supervisor representing rural District IV in the county of El Dorado, east of Sacramento.

Recently, the three of us sat together under a rose trellis in the quiet cool of morning to talk politics. Each of us remains a staunch Republican conservative, but our perspectives on the death penalty have changed. We'd thought we would bring California savings and safety in dealing with convicted murderers. Instead, we contributed to a nightmarish system that coddles murderers and enriches lawyers. Our initiative was intended to bring about greater justice for murder victims. Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population.

Each of us, independently, has concluded that the death penalty isn't working for California.

I want to also note several California items from last week.  The National Catholic Reporter has a profile of Jeanne Woodford, "As warden, she oversaw executions; now she fights to stop them," written by Jacqueline Gilvard Landry.

The woman who oversaw four executions by lethal injection is fighting to make sure it never happens again.

Jeanne Woodford served as warden of San Quentin State Prison in California from 1999 through 2004. Now she is the chief law enforcement spokesperson for SAFE California, a ballot initiative that would replace the state’s death penalty with life in prison without parole, require inmates to pay into a victims’ compensation fund, and allocate $100 million over three years to solving crime.

Capital punishment “isn’t effective, it’s costly, it isn’t efficient,” Woodford said. Evidence shows that the death penalty costs more than housing prisoners for life, steals resources from solving other crimes, and hurts victims’ families who wait for executions that may never happen, she explained.

“I think there’s something about [the death penalty] to hate by everybody, whether conservative or liberal or somewhere in between,” Woodford said.

KTXL-TV posts, "The High Cost of Death," by Sabrina Rodriguez.

In prison, time is money and death row is the most expensive.

California has had a working death penalty since 1978, but you wouldn’t know it.

There are currently 722 inmates on death row, but the number actually about to be executed is zero.

"The Fate of California's Longest Standing Death Row Inmate Could Change," is by Christina Lusby for KSEE-TV News.

The fate of California's longest standing death row inmate, Douglas Ray Stankewitz, could change. Stankewitz was convicted of murder in 1978.

Stankewitz’s case was the first to be tried after the death penalty was reinstated back in 1978 and the jury handed it to him.

Monday, nearly 30 years after the crime, Stankewitz is asking for a reversal of the decision to be upheld. Now, he may be no closer to death than he was when he was first convicted.

Earlier coverage from California begins at the link.

Judge Harle to Recommend Court of Inquiry to Proceed in Morton Exoneration

"Anderson should face inquiry, judge rules," Chuck Lindell's Austin American-Statesman post.

Former Williamson County district attorney Ken Anderson should face a court of inquiry to examine allegations that he violated state law by withholding evidence that could have spared Michael Morton from a wrongful conviction and almost 25 years in prison, a district judge ruled today.

After a 75-minute hearing, District Judge Sid Harle ruled that there is probable cause to believe that Anderson may have broken state law in the Morton case.

Noting that the allegations to date have been spurred by Morton’s lawyers, Harle said a court of inquiry would give Anderson a chance to clear his name and Morton a chance to seek a greater measure of justice.

Harle will put his request in writing - he gave no timeline - to Texas Supreme Court Chief Justice Wallace Jefferson, who will determine whether to convene a court of inquiry to examine the allegations.

If Jefferson agrees, the Supreme Court would assign a state district judge to oversee the court of inquiry, which is a fact-finding body that would determine whether any state laws were violated. The court would not issue a punishment or criminal conviction.

After the hearing, Morton choked up briefly when facing reporters. “When you do the right thing, like the judge did today, everything falls into place,” said Morton, now sporting a gray goatee.

Anderson, now a district judge in Georgetown, was not in court. His lawyer, Mark Dietz, said Anderson looks forward to the court of inquiry. “It does give him the ability to clear his name,” Dietz said.

"Judge Orders Court of Inquiry for Morton Prosecutor," by Brandi Grissom at the Texas Tribune.

Judge Sid Harle said today he will recommend that Texas Supreme Court Chief Justice Wallace Jefferson convene a court of inquiry to review a slew of evidence against former Williamson County prosecutor Ken Anderson and determine whether there is probable cause to press criminal charges of prosecutorial misconduct related to his work in 1987 to secure a wrongful murder conviction that sent Michael Morton to prison for life.

In addition to allowing a full public airing of the evidence, the Bexar County state district judge said the unique legal proceeding would allow Anderson, who is now a district judge, the opportunity to clear his name.

“The only method and venue I know of for that to occur and for Mr. Morton’s interests to be served” is a court of inquiry, Harle said.

Morton was convicted of the 1986 murder of his wife, Christine Morton, who was bludgeoned to death in the couple's North Austin home. DNA testing results last year showed that Morton was innocent and that another man was likely responsible for his wife's gruesome death. After spending 25 years in prison, he was released in October and charges against him were dismissed in December.

And:

In November, Mark Norwood, the man whose DNA was connected to Christine Morton's death and to the 1988 killing of Debra Masters Baker, was arrested and charged with murder. A Williamson County grand jury indicted Norwood this month.

Baker’s family, including her husband Phillip, her son Jesse, her daughter Caitlin and her sister Lisa Conn, were in the courtroom for the proceedings Friday. The family joined in Morton’s request for the court of inquiry.

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

DP9 - A New Blog

Thanks to Jeff Ellis for sending word of a new blog, DP9,.  It's produced by the Oregon Justice Resource Center and is focused on capital punishment issues and litigation in Oregon and in the Ninth Circuit.  It looks very well organized and should be an excellent resource.  I'll add it to the left-column webroll of death penalty blogs, next.

Ellis says he hopes, "the blog will begin to fill at least part of the gap left when CapDefWeekly shut down."

I noted the passing of Karl Keys' excellent Capital Defense Weekly, last year.  Fortunately, the Capital Defense Weekly archives are still available.