The StandDown Texas Project

Mercury News Endorses California Prop 34

Today's Silicon Valley Mercury News carries the editorial, "California should end barbaric, costly death penalty."

California's death penalty is archaic, unfairly applied and fiscally insane. More than 135 nations have abolished capital punishment, and the list of those that still use it is a who's who of human rights abusers: Iraq, Iran, Libya, China, North Korea and Sudan, for starters. Oh, and us.

This fall voters should make California the 18th state to repeal the death penalty in favor of life in prison with no chance of parole. Vote yes on Proposition 34.

Never mind moral arguments; the death penalty simply doesn't work. Since it was reinstated in 1978, California has spent $4 billion on just 13 executions. We are no safer.

Passing Proposition 34 will leave $180 million more per year in the general fund, where it can be spent on preventing crime rather than retribution: improving schools, for example; it's not straight-A students who pack jails. Of that amount, $30 million would go to law enforcement to help solve more homicide and rape cases. That's surefire crime prevention, locking up the bad guys.

The proposition also requires inmates to work in prison and turn over earnings to crime victims.

Death penalty supporters argue that the lengthy appeals that run up public costs should be cut short or ended. That works in barbaric nations that immediately execute prisoners. But it doesn't deal with a major reason other states have abolished the death penalty: increasing evidence that innocent people have been executed.

And:

Voters need to end it Nov. 6.

"The truth about the death penalty," is Tracie Olson's OpEd in the Woodland Daily Democrat.  Olson is the Yolo County Public Defender.

Contrary to the Wednesday guest opinion by District Attorney Jeff Reisig in The Daily Democrat, there are numerous, overwhelming reasons to oppose the death penalty, and none involve dishonoring victims.

District Attorney Jeff Reisig laments the "endless delays in the criminal justice system, frivolous appeals, and a mountain of misinformation" caused by the "ACLU and its agents." However, he conveniently ignores the fact that the National Registry of Exonerations has recorded over 920 exonerations across the United States since 1989, more than 100 of which had been sentenced to death.

Kirk Bloodsworth was the first American to be freed from death row as a result of exoneration by DNA fingerprinting. Ray Krone is the 100th American to have been sentenced to death and later exonerated. For those exonerated of murder, the biggest problem is perjury, usually by a witness who claimed to have witnessed the crime or participated in it. False confessions, witness misidentification, junk science, and prosecutorial and police misconduct are other significant reasons that result in incarcerating the innocent.

And:

In 2011, U.S. 9th Circuit Judge Arthur L. Alarcon (who does not oppose the death penalty) and Loyola Law School professor Paula Mitchell (who favors abolition) released a study which concluded that the death penalty has cost Californians over $4 billion since 1978. They found that capital cases often cost 10 to 20 times more to litigate than murder trials that don't involve the death penalty. They found that the cost of automatic appeals and state habeas corpus petitions in capital cases in California was $58 million in 2010 alone. Importantly, this figure excludes the cost of providing counsel in federal proceedings, where nearly every condemned inmate whose state claims have been denied seeks relief (and where federal courts grant relief -- in the form of a new guilt trial or a new penalty trial -- in roughly 70 percent of the cases they reviewed). Additionally, they found that Californians spent an estimated additional $70 million in 2010 just to house condemned inmates.

Alarcon and Mitchell's findings mirrored those made in 2008 by the California Commission of Fair Administration of Justice -- a 22-member commission created by the state Senate. Likewise, the Legislative Analyst's Office 2011 report concluded that eliminating the death penalty would result in net savings to taxpayers due to savings in trial costs, appellate litigation costs, and correctional costs. Lastly, it is imperative to point out that Reisig's assertion that a "study" by the Rand Corporation in 2008 "does not even support the death penalty opponents' claims [that eliminating the death penalty saves money]" is bogus. No such "study" exists. The study was contemplated but never executed due to time and budget constraints.

San Francisco Chronicle columnist Debra J. Saunders writes, "As Sacramento dawdles, DAs revolt."

California's death penalty has been in limbo since 2006 when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.

Brown and Harris are personally opposed to the death penalty but, when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.

In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the Ninth Circuit in San Francisco refused to stay a single-drug execution in Washington state in 2010.

California officials still are sticking with a three-drug protocol mired in legal challenges. Sacramento has been so ineffective that Los Angeles District Attorney Steve Cooley asked a Superior Court judge to make the state order the single-drug executions of multiple murderers Tiequon Cox and Mitchell Sims.

Earlier coverage of California Prop. 34, the SAFE California ballot initiative, begins at the link.

Montana Lethal Injection Challenge

"Judge to hear challenge to lethal injection," is the Kalispell Daily Inter Lake report written by Tom Lotshaw.

The American Civil Liberties Union of Montana on Wednesday will argue before Lewis and Clark District Court Judge Jeffrey Sherlock that the state’s lethal injection protocol is unconstitutional and inadequate and needs to be reformed.

The petition was filed in 2008 on behalf of Ron Smith, a Canadian who was convicted in 1983 for kidnapping and murdering two Blackfeet cousins in Flathead County.

Seeking summary judgment, the petition argues that Montana’s lethal injection protocol fails to provide adequate safeguards to ensure that executions are carried out in a humane manner, as required by the U.S. Constitution and Montana Constitution; is overly vague; does not require adequate medical training or experience for executioners; and fails to comply with state law.

“This is an issue that the court is going to have to take a very close look at, to see if the new protocol, recently adopted, provides the safeguards that need to be set forth and expressed,” said Ron Waterman, one of two Helena attorneys representing Smith.

“I would say [the state’s] argument is it’s good enough. Ours is that it is not.”

Waterman said he plans to argue that Montana statute requires the use of “ultra fast-acting barbiturates” and that none of the drugs listed in the state’s lethal injection protocol satisfy that definition.

Montana statute also calls for a two-drug lethal injection process, but the state’s lethal injection protocol calls for three drugs, Waterman and the ACLU argue in a press statement.

A federal court also has recently ruled that the public has a right to know the names and qualifications of executioners, but Montana statute says that information shall remain private, Waterman said.

“Even though we haven’t raised that issue except for a very minor footnote, that’s another problem out there that goes to both Montana statute as well as the protocol,” Waterman said.

Earlier coverage of Montana lethal injection issues begins at the link.  Earlier coverage of the open government litigation in the 9th Circuit, and the case of Ronald Smith is also available.

Texas Execution Stay a Wise Move

That's the title of an editorial in today's Houston Chronicle on the Marcus Druery case.  Here's the beginning:

Last Friday, capping a flurry of activity, the Texas Court of Criminal Appeals granted a stay of execution to convicted murderer Marcus Druery, who had been scheduled to be put to death tomorrow for a Brazos County murder and robbery in 2002.

At issue was Druery's mental competency to understand the reason for his execution. Both state and private mental health professionals had diagnosed Druery as severely psychotic and therefore incompetent to be executed. But last Tuesday, Brazos County District Judge J. D. Langley denied a motion to hold a full hearing on Druery's competency.

On Wednesday, Kate Black, Druery's attorney, stating that her client's execution "would violate the Eighth Amendment's ban on cruel or unusual punishment," appealed that denial to the Texas Court of Criminal Appeals, arguing that her client "suffers from a psychotic disorder that renders him incompetent to be executed." Two days later, the court stayed the execution, writing that it had "determined that further review is necessary."

We applaud the court's decision, as far as it goes. We fervently hope that their review will persuade the justices to remand the case back to the Brazos County court for a competency hearing. Execution is irrevocable, and should never be invoked as long as a shred of doubt exists as to its constitutionality in any given case.

Prosecutors are not contesting the diagnosis of schizophrenia, nor claiming that Druery is malingering. They argue that despite his mental illness, he is competent for execution. But no court has ever ruled on Druery's competency. His attorneys are simply asking that their client not be put to death until they have had a chance to demonstrate, in a full and fair hearing, that he is not competent to be executed.

Salon posts, "Marcus Druery: Another questionable Texas execution."  It's by Rania Khalek.

Black says Druery’s awareness of his upcoming death sentence is not the same as having a “rational understanding” of why the state wants to execute him. As evidence, she points to the Supreme Court decision in Panetti v. Quarterman, a case brought forward by another psychotic inmate who was nearly executed by the state of Texas.

Panetti had schizoaffective disorder, causing delusions that led him to believe the state wanted to kill him to stop him from preaching. Though Panetti recognized the factual rationale behind his death sentence — that he was found guilty of murdering his ex-wife’s parents — the Supreme Court held that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it.”

The court reasoned that executing a prisoner who “has no comprehension of why he has been singled out and stripped of his fundamental right to life” undermines the concept of retributive justice. “There’s no retribution for someone being executed when they think it’s for something that has nothing to do with the actual crime,” explained Black.

Druery’s failure to understand his legal circumstances was verified by Diane Mosnik, a neuropsychologist specializing in schizophrenia who was hired by the defense with court funding to conduct a comprehensive psychological assessment of Druery in May. “Because of his inflexible, psychotic and delusional interpretation of his circumstances, Mr. Druery does not have the capacity to rationally understand the connection between his crime and his punishment,” concluded Mosnik. “Although [Mr. Druery] has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed, and firmly held delusional belief system.”

Black and her co-counsel, Gregory W. Wiercioch, one of the lawyers who argued the Panetti case to the Supreme Court, immediately appealed Langley’s ruling to the Texas Court of Criminal Appeals, requesting that it be overturned and Judge Langley be required to hold a competency hearing. Late Friday, the CCA granted a temporary stay pending further review of the evidence.

Earlier coverage of Marcus Druery's case begins at the link.

Related posts are in the competency and mental illness category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

Will Texas Execute a Psychotic Man?

That's the title of Andrew Cohen's latest Atlantic post.  It' subtitled, "One prison doctor after another has diagnosed Marcus Druery as severely mentally ill. Does the Constitution permit the death penalty anyway?"  Here's the beginning:

Some things are relatively simple about the case of Marcus Druery, a convicted murderer whom Texas officials plan to execute Wednesday evening at the state's death chamber in Huntsville. The details of the Halloween 2002 crime for which Druery was convicted are horrible, for example, and there is no pending legal claim that Druery is innocent or was wrongly convicted. This time, at least, no one seems to doubt that the police, the prosecutors, the witnesses, and the jurors all got the right man.

But there is one thing about the Druery case that is very complicated, indeed. No one seems to dispute that Druery now suffers from delusions and a psychotic disorder that doctors have consistently labeled as a form of schizophrenia. Nevertheless, despite these diagnoses, and despite United States Supreme Court precedent that precludes the execution of prisoners "who are unaware of the punishment they are about to suffer and why they are to suffer it," Texas still intends to execute Druery.

If the courts permit, that is. Late Friday, the Texas Court of Criminal Appeals stayed the Druery execution "pending further order." The unpublished ruling means that state appellate judges want to look more closely at defense claims that Druery has shown enough evidence of incompetency to preclude his execution. The central legal question here is: Can a state execute an "Undifferentiated Type" schizophrenic? Put another way, how mentally ill does someone need to be to be too mentally ill to be executed?

If the substance of the Druery appeal has to do with a single man's mental health, the process that led us here is illustrative of the deeply flawed nature of Texas' capital punishment system. We see in this case a judge more angry about delays than he is committed to accuracy. We see prosecutors with risible disdain toward defense counsel. And we see it all in a case in which the condemned man has been judged to be seriously mentally ill over and over again by the state's own doctors.

Earlier coverage of Marcus Druery's case begins at the link.

Related posts are in the competency and mental illness category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

There are several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship - Mental Illness & Competency to Be Executed

Virginia Drug Switch - Additional Coverage

The expanded AP report is, "Virginia adds new lethal injection drug," by Larry O'Dell.  It's via the Virginian Pilot.

The Virginia Department of Corrections said Friday that it has added a new drug to be used in executions to replace one that is in short supply nationwide.

In a one-sentence statement, the department said rocuronium bromide can now be used in the lethal injection cocktail as an alternative to the nationally scarce pancuronium bromide.

And:

Dr. Joel Zivot, an assistant professor of anesthesiology at Emory University School of Medicine in Atlanta, said the ingredients of a lethal injection cocktail are secondary.

"What's at play here is an attempt to usurp the good name of medical practice and an attempt to use medicine in a way it has never been intended to be used," he said.

In May, an anti-death penalty group called Reprieve complained that Virginia had a stockpile of 60 vials of pancuronium bromide while hospitals are in short supply. The group said that amount could be used to relax the muscles of 50 to 60 patients during hospital surgeries.

Department of Corrections spokesman Larry Traylor said Friday that he could not say how much pancuronium bromide the department has, whether it has expired or what will become of it.

Texas changed its execution method to a single dose of the sedative pentobarbital earlier this month after its stock of pancuronium bromide expired and it was unable to obtain more. Georgia also switched to a one-drug execution method a week later.

In Virginia, condemned inmates are allowed to choose either electrocution or lethal injection. If they refuse to make a choice, they get the injection. The federal government and all 34 death penalty states use lethal injection, although some have other methods available as backup.

Virginia has executed more people than any state except Texas since the U.S. Supreme Court reinstated the death penalty in 1976.

"Virginia opts for new drug in lethal injection protocol," by Laura Vozzella for the Washington Post.

Virginia’s move came as something as a surprise to death penalty experts.

“Texas, Georgia, Ohio, Missouri — all the other major death penalty states — have been switching to a single drug,” said Richard Dieter, executive director of the Death Penalty Information Center. “And I’m not sure what Virginia’s rationale is for not seizing that opportunity to go with a single drug, which I think is the wave of the future.”

Virginia officials declined to comment beyond a one-sentence statement announcing the change.

Virginia has executed 109 prisoners since the death penalty was reinstated, making it the second-biggest death penalty state behind Texas, which has put 483 to death.

Since the Supreme Court ruling, lethal injection has become the most common method of execution across the country, although death row inmates in Virginia still have the option of choosing the electric chair.

Lethal injection by the three-drug cocktail was thought to be a more humane method of execution. But questions have been raised about whether the process really is painless — specifically because of the second step that Virginia is preserving. Because the second drug causes paralysis, it is not known whether the prisoner feels the effects of the third drug, which stops the heart, Dieter said.

“You don’t see motions, you don’t hear groans,” Dieter said. “The second drug has been identified as more cosmetic. . . . It has been criticized as unnecessary to the process except for appearances’ sake. . . . You run the risk with this Virginia process of still having painful executions and perhaps inhumane in the court’s eyes.”

The one-drug protocol is not without its own drawbacks. It takes about 25 minutes for that process to work, compared with 10 minutes with the three-drug regimen, Dieter said. It also represents more of a change in procedure, he said, which could invite more legal challenges.

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

Raymond Bonner on Lethal Injection Drugs

"FDA’s Immoral Stance on Lethal Injection Drugs," is the title of commentary by Raymond Bonner for Bloomberg.  Here's the beginning:

The mission of the Food and Drug Administration is to protect us from drugs that might kill because they are impure, badly manufactured, untested. Well, not all drugs, as it turns out.

When it comes to drugs used in executions, the FDA says it doesn’t check on their “potency, safety or effectiveness.” Thus, the agency allowed a small company in Mumbai that stored its drugs in a room without air conditioning to sell Nebraska enough sodium thiopental for 166 executions.

It permitted a tiny wholesaler, Dream Pharma, operating out of two rooms in the back of a driving school in London, to sell sodium thiopental -- the most critical drug in executions -- to Georgia, Arkansas, Tennessee, South Carolina and California. The FDA even helped expedite a shipment of sodium thiopental to Arizona because “it was for the purpose of executions and not for use by the general public,” the deputy director of the Arizona Department of Corrections wrote in an e-mail to his counterpart in California.

This caused one death penalty lawyer, Clive Stafford Smith, to say sarcastically that drugs “can be expedited if they are meant to kill someone, but apparently not if they are meant to save lives.”

The conundrum for the FDA, which has now been sued, arose when the only U.S. company that had FDA approval for sodium thiopental, Hospira (HSP), ceased production. With that, death penalty states scrambled abroad for the drug, an anesthetic, and their problems escalated.

More from Ray Bonner at the link, including coverage of his book, Anatomy of Injustice: A Murder Case Gone Wrong, 

Coverage of the federal district court ruling in Beaty v. FDA is at the link.

Related posts are in the lethal injection category index.

CCA Stays Marcus Druery Execution Over Competency

The Texas Court of Criminal Appeals Order in Druery v. Texas is available in Adobe .pdf format.

Druery's attorney, Kate Black, issued the following statement:

"We are pleased that the Texas Court of Criminal Appeals stayed the execution of Marcus Druery to allow for careful consideration of our request for a competency hearing. The State has never contested the fact that Mr. Druery suffers from a psychotic disorder, which has been diagnosed by the State's own experts. Executing Mr. Druery, who lacks a rational understanding of his punishment, would stand in clear violation of the Constitution. We are hopeful the Court will find that Mr. Druery is entitled to a full and fair hearing to present the evidence of his severe psychosis and establish his incompetence to be executed."

"Texas death row inmate has Aug. 1 execution stayed," is the AP report, via KTRK-TV.

A Texas death row inmate who was scheduled to die next week had his execution stayed Friday by the state's highest criminal court, which wants to review a petition that argues he is not mentally competent to be executed.

And:

The Texas Court of Criminal Appeals ordered its stay after a lower court rejected Druery's petition. An attorney for Druery, Kate Black, said he was diagnosed with schizophrenia and was deemed incompetent by a defense expert. She says executing Druery would violate the U.S. Constitution's ban on cruel and unusual punishment.

The U.S. Supreme Court has ruled that prisoners can't be executed unless they're aware of the punishment and know why they're being punished.

"Appeals court delays Marcus Druery exceution," by Maggie Kiely for the Bryan-College Station Eagle.

The Texas Court of Criminal Appeals Friday afternoon granted a stay of execution for Marcus Druery, a 32-year-old death row inmate from Bryan who was scheduled to receive a lethal injection Wednesday.

Druery killed and robbed 20-year-old Skyyler Browne on Halloween 2002 before lighting Browne’s body on fire and dumping it in a stock pond.

He was sentenced to death in 2003 by a Brazos County jury.

Druery’s lawyers filed an appeal Wednesday asking the appellate court to review District Judge J.D. Langley’s decision to deny Druery a competency hearing as his attorneys had requested.

The appeals court “determined that further review is necessary” and issued the stay “pending further order,” according to a response from the panel of nine judges.

Defense attorneys Kate Black and Greg Wiercioch of the Texas Defender Service have argued that their client meets the criteria for incompetency and doesn’t have a “rational understanding” of why he’s to be executed, which would make him ineligible for the death penalty.

"Appeals court halts execution over competency issue," by Cindy George for the Houston Chronicle.

Brazos County District Attorney Bill Turner said prosecutors do not dispute that Druery has a mental disorder, but they believe he's competent enough to face execution.

"We anticipated the appellate courts would take a look at it before the execution proceeded," Turner said in an interview Friday.

Druery, who has been on death row for almost six years, was to be executed for the 2002 robbery-murder of Skyyler Browne.

"Bryan Murderer's Execution Put on Hold," on KBTX-TV.

It's unclear when the appeals court will conduct its review.

The last Brazos County killer to be executed was Ynobe Matthews in 2004.

Earlier coverage of Marcus Druery's case begins at the link.

The Cautionary Instruction

That's the title of an OpEd in today's Pittsburgh Post-Gazette subtitled, "Three states, three approaches and three very different results."  It's by Matt Mangino, former district attorney of Lawrence County, Pennsylvania, and a member of the Pennsylvania Board of Probation and Parole.

In 2007, the U.S. Supreme Court decided Panetti vs. Quarterman.   The court was asked to decide whether a condemned prisoner had a "rational understanding" of his crime and punishment for purposes of execution.

The court also addressed the retributive purpose of capital punishment, "it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole [to] affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed."

Cases pending before courts in Texas, Oregon and Georgia point to the absurdity of death penalty litigation. In Georgia, the court stayed the execution of a man with an IQ of 69, not because he is mentally retarded, but because a state court wants to examine a newly implemented execution protocol. In Texas, the court said a schizophrenic killer is competent and his execution should proceed. In Oregon, where the governor granted a reprieve to all condemned killers, one man is demanding to be executed.

Mangino then goes into the cases of Warren Hill, Marcus Druery, and Gary Haugen; and:

Three states, three different approaches and three very different results. The news this week points to the absurdity of a 33 state approach to capital punishment.

Earlier coverage of the three cases is linked above.  Related posts are in the competency, mental illness, and mental retardation category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

There are several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship - Mental Illness & Competency to Be Executed

An Arizona Volunteer

Today's Arizona Republic reports, "Hausner insists he's sane in handwritten letter," by Michael Kiefer.

In a handwritten letter received Thursday by The Arizona Republic, convicted "Serial Shooter" Dale Hausner insisted he is sane enough to be granted his request that he be executed without undergoing lengthy appeals.

"The State of AZ wanted me to get the death penalty before and during my trial. I was found guilty and given six death sentences," he wrote. "Now that I want to get executed, suddenly my mental state is in question. ... I am not insane, I am of sound mind. I simply wish to get the punishment handed down to me, but more quickly. I mean really, what's a guy got to do to get snuffed out?"

He punctuated the last sentence with a smiley face.

Before Hausner can be executed, a Maricopa County Superior Court judge must determine if he is competent to make the decision.

Related posts are in the competency, mental illness, and volunteer category indexes.

Volunteer is the term applied to inmates on death row who waive their appeals.

The Forgotten Victims

"Tragedy compounded: Killers' parents become instant pariahs," is the title of JoNel Aleccia's report for NBC News.  Here's the beginning of this must-read.

As news crews swarmed outside the tile-roofed house of accused shooter James Eagan Holmes’ parents in an upscale suburb of San Diego, a stranger 1,300 miles away in Texas grieved for those inside.

“I’ve been worried about the family,” said Lois Robison, 78. “I know what it’s like to find out your son has killed several people.”

Last Friday, when Holmes allegedly opened fire in a movie theater in Aurora, Colo., his parents, Robert and Arlene Holmes, were instantly thrust into a club that no one wants to join: family members of notorious killers.

Like the parents of Tucson shooter Jared Loughner, Oklahoma City bomber Timothy McVeigh and Columbine High School killers Dylan Klebold and Eric Harris, they’re quickly becoming pariahs, publicly reviled for raising a monster.

But a group organized on behalf of murder victims’ families urges compassion and understanding for the families of murderers, too. 

They suffer in a different way than those who lose loved ones to violence, said Renny Cushing, founder and executive director of Murder Victims' Families for Human Rights, or MVFHR, which has organized support sessions for killers' families.  

“I became really painfully aware of the ostracism that takes place,” said Cushing, whose father was murdered in 1988. “Immediately, there’s this thought that families must have done something to cause this, that the apple doesn’t fall far from the tree.”

That’s all too familiar to Robison, a retired third-grade teacher. Her son, Larry Keith Robison, was executed in 2000 in Texas for the grisly murders of five people, including an 11-year-old boy. He had been diagnosed with paranoid schizophrenia at age 21, three years before the 1982 murders. 

Though it’s been nearly 30 years since the crime, Robison still clearly recalls the shock and horror of the early days -- and the reaction of some in the community of Burleson, Texas.  Reporters surrounded her home; in ensuing months, some parents asked to have their children removed from her class.

No longer were they Ken and Lois Robison, the local schoolteachers.

“We became the parents of a mass murderer,” said Robison.

It’s a shift that happens quickly as a restless public searches for someone or something to blame for senseless acts of murder, said Cushing.

Related posts are in the victims' issues index.

Warren Hill Case Update

AP reports, "Request for expedited appeal in Hill case denied."  It's via WTVM-TV.

Georgia's highest court has denied the state's request to expedite an appeal in the case of a death row inmate whose execution was delayed earlier this week.

The Georgia Supreme Court on Monday granted a stay of execution to Warren Lee Hill so it could consider his appeal involving Georgia's recent change in its execution drug protocol.

State Attorney General Sam Olens asked the court to expedite the case, arguing the issuance of a stay effectively halted executions in Georgia until the case can be heard.

The high court on Thursday denied the state's request. Oral arguments are set for November.

Earlier coverage of Warren Hill's case begins at the link.  Related posts are in the lethal injection category index.

Initial Ruling in Connecticut Racial Bias Lawsuit

AP posts, "Judge: Inmates Can’t Bring Up Death Penalty Repeal."  It's via the Hartford Courant.

A judge has ruled that the state's recent repeal of the death penalty can't be raised as an issue in a long-running lawsuit by death row inmates challenging the fairness of capital punishment in Connecticut.

Superior Court Judge Samuel Sferrazza (sfer-AH'-zah) in Rockville said in Thursday's decision that there's no reason to add the repeal issue at such a late stage in the lawsuit because inmates can file new appeals raising the issue. The lawsuit is scheduled to go to trial in September.

And:

The seven-year-old lawsuit claims the state's process for deciding when to seek the death penalty in murder cases was fraught with racial and geographic biases.

Earlier coverage of the Connecticut racial bias suit begins at the link.

Marcus Druery's Lawyers Take Competency Case to CCA

"Lawyers for Mentally Ill Inmate Seek Stay of Execution," is by Brandi Grissom's post at the Texas Tribune.

Lawyers for death row inmate Marcus Druery filed a request with the Texas Court of Criminal Appeals late Wednesday for a stay of execution for their client. They argue that executing Druery, who has been diagnosed with schizophrenia, would be unconstitutionally cruel and unusual punishment. 

On Wednesday, the trial judge in Druery's case, J.D. Langley, also unsealed the inmate's medical record from the Texas Department of Criminal Justice. Among the records is a report from a May 2012 examination by Dr. Diane Mosnik, a neuropsychologist who wrote that Druery "suffers from severe, active psychotic condition, meeting criteria for a clinical diagnosis of schizophrenia." 

The severity of his mental illness, Dr. Mosnik wrote, prevents Druery from having a understanding that he is going to be executed Aug. 1.

"Although he has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed, and firmly held delusional belief system," she wrote.

The Bryan-College Station Eagle reports, "Stay of execution filed in Druery case."  It's by Maggie Kiely.

Attorneys for 32-year-old Marcus Druery — a Texas death row inmate from Bryan scheduled to be executed next Wednesday — filed a stay of execution with the Texas Court of Criminal Appeals this week.

Druery was sentenced to death by a Brazos County jury in 2003 for killing 20-year-old Skyyler Brown by shooting him in the head on Halloween 2002 on Druery’s family’s ranch. After murdering Browne, Druery robbed him of cash, a cellphone, pager and marijuana before setting his body on fire and dumping it in a nearby stock pond.

The request to postpone the execution was sent late Wednesday, a day after District Judge J.D. Langley denied motions filed by Druery’s attorneys asking that a hearing be held and for two independent psychiatrists to be appointed to assess if their client is competent for execution.

Defense attorneys Kate Black and Greg Wiercioch with the Texas Defense Service have argued that while Druery may have a “factual understanding” that he’s supposed to be executed next week, he doesn’t have a “rational understanding” about why he’s been sentenced to the death penalty.

"Bryan Killer's Lawyers Seek Stay of Execution From Appeals Court," is the KBTX-TV report.

With just six days to go before his scheduled execution, Marcus Druery's lawyers have officially filed an appeal to a higher court trying to stop the lethal injection.

And:

Druery was convicted of the 2002 murder of Skyyler Browne, but doctors have said he suffers from schizophrenia. Medical records were unsealed Wednesday by Langley noting Druery's condition.

According to the U.S. Supreme Court, an inmate must know they are being executed and why before they are put to death. Otherwise, it would be considered cruel and unusual punishment.

Earlier coverage of Marcus Druery's case begins at the link.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Virginia Changes Lethal Injection Drug

AP posts, "Virginia Adds New Lethal Injection Drug," by Larry O'Dell.  It's via ABC News.

Virginia has added a new drug to be used in executions to replace one that is in short supply across the U.S.

The Virginia Department of Corrections said Friday that rocuronium bromide can now be used in the lethal injection cocktail. The drug is an alternative to the scarce pancuronium bromide, which is used to paralyze muscles.

Richard Dieter of the Death Penalty Information Center says Virginia appears to be the first state to substitute a drug for pancuronium bromide.

He says Texas and Georgia have switched from the three-drug cocktail to just one, bigger dose of a sedative.

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

Perdue Stood for Racial Justice in N.C.

That's the title of an OpEd in today's Charlotte Post, subtitled, "Governor's courage will be state's reward."  It's by Julius Chambers, James Ferguson and Adam Stein; attorneys in Charlotte.

The journey toward racial justice has always been a difficult one, full of detours and missed turns. What’s important is that we keep going, that we never give up.

This month, with the dismantling of the N.C. Racial Justice Act, our state has taken another one of those detours. But we are still proud just to be walking this path — and especially to be walking it beside our state’s courageous Gov. Beverly Perdue.

In 2009, Gov. Perdue signed the groundbreaking Racial Justice Act into law, giving North Carolina the chance to finally root out the racial bias that still haunts its capital punishment system. Under the law, death row inmates could present statistical evidence to prove that their sentence was part of a pattern of racially discriminatory sentencing. Those who persuaded a judge that race played an impermissible role in their case would be resentenced to life in prison without parole.

In the past year, Gov Perdue twice vetoed our state legislature’s attempts to gut the act.

This last time, she was not successful in blocking the act’s destruction, but that does not diminish the integrity she showed.

Unlike many politicians in our state and across the country, Perdue was willing to confront the legacy of bias that still affects who gets the death penalty in North Carolina. She understood that justice could not be served until we correct the facts that blacks are still excluded from jury service and that crimes against whites are still punished most harshly than crimes against blacks.

As Gov. Perdue said after the veto, “Willfully ignoring the pernicious effects of discrimination will not make those problems go away. It is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”

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

California Roundup on Prop 34

"Death penalty repeal pits Mayor Villaraigosa vs. former Gov. Wilson," is the Los Angeles Times PolitiCal item.

Los Angeles Mayor Antonio Villaraigosa goes up against former Gov. Pete Wilson in a debate over the death penalty that will be coming soon to mailboxes throughout California.

Villaraigosa signed the ballot argument to be included in the official state voter guide on Proposition 34, which would repeal the state’s death penalty if approved on the November ballot. Wilson signed the "no" argument.

The California Legislative Analyst's Office has issued official summaries of Prop. 34 and Prop. 36.  That's the topic of PolitiCal's, "Voters have chance to lower prison, court spending, reports say."

Two proposals on the November ballot could help reduce spending on prisons and courts by about $200 million a year, according to reports released Tuesday by the nonpartisan Legislative Analyst's Office.

The first initiative, known as Proposition 34, would eliminate the death penalty in California. That would cut costs for murder trials, lengthy legal appeals and local jails, the Legislative Analyst's Office said. Annual savings could start at $100 million and reach $130 million in a few years.

There is some additional spending in the initiative, however. The state would be required to dish out grants to local law enforcement totaling $100 million over four years.

The second initiative, Proposition 36, would loosen California's three-strikes law. If it is approved by voters, criminals would not face the same steep prison sentences unless their third felony is considered violent or serious, such as robbery or some assaults.

The initiative could also allow some inmates out of prison sooner if they're serving life sentences for a third strike that is nonviolent and non-serious, such as theft or drug possession.

The Legislative Analyst's Office said annual savings could start at $70 million and eventually increase to $90 million.

New Times San Luis Obispo carries the OpEd, "End the death penalty," by Dan Gross.

This November, Californians will vote on Proposition 34, the Savings, Accountability, and Full Enforcement Act (SAFE). The SAFE act replaces California’s death penalty with a mandatory life sentence without the possibility of parole, saves California taxpayers billions of dollars, and establishes funds to improve rape and murder investigation.

California executed 13 people since 1978 and spent more than $4 billion on the capital punishment during that time (an average of $308 million for each execution). A study conducted by U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell projects that California will spend an additional $5 billion under the current capital punishment system by 2030. To my mind, this is money poorly spent on a system that gives broken promises to victims’ families, who are left with years of emotional trials and retrials that rarely culminate in the execution of their loved one’s killer. California can and should use those billions to fund essential services like education and other social services that are facing cuts because of the budget deficit.

The Woodland Daily Democrat carries the OpEd, "Sometimes seeking justice demands the death penalty," by Jeff Reisig and Guadalupe Diaz.  He's the Yolo County district attorney; Diaz, the sister of a murdered Yolo County deputy sheriff.

On June 15, 2008, Father's Day, Deputy Tony Diaz was murdered by Marco Topete when Topete fired an assault weapon 17 times at Diaz, penetrating his bullet proof vest and fatally striking him in the chest.

At the time of the shooting, Topete was on parole from state prison for shooting an unarmed man in front of a convenience store in 1998. He was also a validated gang member and had been previously convicted of multiple felonies under California's three-strikes law.

And:

There are some murders that are so horrific that we, as a democratic society, have concluded that the death penalty is an appropriate punishment. The voters in California approved of the current death penalty law in 1978.

Earlier coverage of Prop. 34, the SAFE California ballot initiative, begins at the link.

New Concern Over Oklahoma Lethal Injection

"Okla. death row inmate seeks hearing on execution," is the AP report, via NECN.

A lawyer for an Oklahoma death row inmate said Wednesday he has asked a federal judge to require that a backup dose of an anesthetic be readily available if his client's execution is carried out next month.

Attorney Jim Drummond said he filed a motion Tuesday seeking an emergency hearing so that the judge could consider his request to at least temporarily stop the Aug. 14 execution of Michael Hooper. Drummond argues that Hooper could experience excruciating pain if pentobarbital — the first of three drugs administered during a lethal injection — does not render Hooper unconscious.

"I'm asking that they bring a backup dose," Drummond said, noting that other states have such a requirement. "As far as I know they've never brought a backup dose."

Drummond filed a lawsuit against the state on Hooper's behalf earlier this month when state officials said they had only one dose of pentobarbital. The complaint was amended Tuesday after the state said it had obtained 20 more doses.

Drummond said acquisition of the additional doses does not eliminate his concerns about the way the state carries out executions, especially the need for a backup dose of the anesthetic.

No emergency hearing had been set as of Wednesday afternoon, according to online records of the U.S. District Court in Oklahoma City.

And:

In Oklahoma's execution process, pentobarbital is used to render a condemned inmate unconscious, followed by vecuronium bromide to stop breathing and potassium chloride to stop the heart.

Drummond said that if the sedative is ineffective, the remaining drugs may cause great pain in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The lawyer said administration of the second drug "can feel like suffocation" if the inmate is still conscious, and the third drug "can be excruciatingly painful."

The lawsuit also questions whether the state's 20 new doses of pentobarbital were manufactured for human or veterinary use. Pentobarbital is a barbiturate similar to one used to euthanize animals.

In addition, the complaint questions whether the state's execution protocol is constitutional because other states have adopted a one-drug protocol that involves a single fast-acting barbiturate. Supporters say it causes no pain and can be given in a large enough dose to cause death.

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

Texas Death Row Inmate Selwyn Davis Dies

Mike Ward posts, "Selwyn Davis dies while on death row," at the Austin American-Statesman.

Authorities said they are investigating the death — a rarity on Texas death row — as a possible suicide.

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said Selwyn Davis, 30, was found unconscious during a routine security check shortly after 9 p.m. last Friday at the Polunsky Unit in Livingston, east of Huntsville.

“He was unresponsive on the floor,” Clark said. “Staff began life saving measures, called 911, and took the offender to the unit infirmary.”

Davis was rushed by ambulance to Livingston Memorial Hospital where he was pronounced dead at 10:04 p.m., Clark said. An autopsy and cause of death are pending, he said.

Clark said the agency’s Office of Inspector General is investigating the death.

The Oregon Hearing

"Oregon death row inmate fighting reprieve," is the AP report, via the Las Vegas Sun.

An Oregon death row inmate and the state's governor are at the center of an unusual legal battle _ the governor has granted the twice-convicted murderer a reprieve, even though the inmate did not ask for it and does not want it.

Gov. John Kitzhaber blocked Gary Haugen's scheduled execution last fall, saying no executions would be carried out on his watch.

Haugen has sought to reject the governor's clemency. He's voluntarily waived legal appeals that could delay his execution for years and has fought to speed his punishment in protest of a criminal justice system that he says is broken.

Their dispute was heard in court on Tuesday.

Oregon voters reinstated the death penalty in 1984, and the state has executed two people since then. Both occurred while Kitzhaber served as governor between 1995 and 2003. Both inmates had volunteered for execution, waiving their appeals.

After Kitzhaber was again elected in 2010, he announced he wouldn't allow any more executions while he was in office, saying he was haunted by the previous two. The governor has said he has no sympathy for Haugen but opposes capital punishment and believes Oregon's death penalty laws are "compromised and inequitable."

Haugen's attorney argued in court on Tuesday that Kitzhaber's reprieve places an "onerous condition" on the death row inmate because it leaves Haugen in the dark about whether he will ever be granted his wish to be executed, since a different governor could take a different position.

"It could be a day, could be seven years," Harrison Latto said of the reprieve. "During that indefinite period of time, they're saying, `sit tight and we'll tell you at the end of that period whether you'll be executed or not."

And:

Kitzhaber's attorney, Tim Sylwester, said Haugen can only decline the reprieve if it comes with strings attached. He cited the case of a man who refused to admit guilt as a condition of a commuted sentence. In Haugen's case, Sylwester said no such conditions apply.

"He has a death sentence he can't challenge," Sylwester said. "Right now (with the reprieve) you're serving a life sentence, it's unconditional . so you can't refuse it."

The Oregonian reports, "Gary Haugen reprieve challenge: Judge appears receptive to death row inmate's argument."  It's by Helen Jung.

Gov. John Kitzhaber faces some obstacles in proving that his reprieve of Gary Haugen's planned execution is legally valid based on past Oregon Supreme Court cases, a judge said Tuesday.

Senior Judge Timothy Alexander quizzed a state attorney about the governor's argument that Haugen doesn't have to accept the reprieve for it to be effective.

Haugen, who has waived his appeals and volunteered for execution, is pushing for his execution to go forward.

Haugen's attorney, Harrison Latto, argued that in past cases before the state's highest court, Oregon has adopted an 1833 U.S. Supreme Court interpretation authored by Chief Justice John Marshall that suggests inmates must agree to pardons and similar acts for them to take effect.

The judge seemed receptive to the argument and asked if state Assistant Attorney General Tim Sylwester could point to any decisions showing that the Oregon Supreme Court had adopted an alternative view. Sylwester said he couldn't, noting the rarity of cases when someone rejects a pardon or reprieve.

"If the Oregon Supreme Court is still in favor of Justice Marshall's acceptance theory, then you've got a problem on (the governor's) side of the case," Alexander said.

Sylwester argued that past court decisions show pardon recipients must accept clemency only if it comes with conditions placed on them. The reprieve in Haugen's case doesn't carry any such conditions, he said. He also has maintained that the governor's power to grant reprieves has no constitutional limits and that the Circuit Court lacks authority to review the reasons for the reprieve.

"Haugen renews bid to reinstate death warrant,"  by Peter Wong in the Salem Statesman Journal.

Although he was barred Tuesday from speaking on his own behalf, Gary Haugen renewed his bid to reinstate his death warrant and reject a reprieve issued by Gov. John Kitzhaber.

Judge Timothy Alexander asked lawyers for Haugen and Kitzhaber to submit additional written arguments on one point relating to a 1957 decision of the Oregon Supreme Court that did not get considered earlier. He set no date for a decision, which he acknowledged likely is to be appealed.

When his lawyer requested that Haugen be allowed to make a statement at the end of an hourlong proceeding in Marion County Circuit Court, Alexander said no.

“This is a legal argument,” said Alexander, a senior judge from Washington County assigned to the case, who denied the request by Harrison Latto of Portland.

And:

Although there are 36 men and one woman on Oregon’s death row as of mid-2011, Haugen is the only one who has waived appeals.Haugen was within two weeks of his execution date when Kitzhaber issued a reprieve Nov. 22.

Earlier coverage from Oregon begins at the link.

An Update on the Connecticut Racial Bias Lawsuit

Today's Hartford Courant reports, "Death Row Inmates Press Question About New Law Abolishing Executions."  It's by Alaine Griffin.

Since the death penalty repeal was signed into law in April, defense attorneys have been looking for ways to challenge the law's unusual prospective provision, an issue many believe will most likely be taken up by the state's highest court.

But that is not stopping lawyers from raising the issue in state court.

In Rockville Superior Court Tuesday, a defense attorney for one of the death row inmates suing the state over whether prosecution of death penalty cases in Connecticut is legally fair, pushed for resolution to questions about the constitutionality of capital punishment in the state in light of the repeal.

"It really is an issue that's crying out for a decision," Stamford attorney David S. Golub said during a hearing on a lawsuit filed by death row inmates who charge that there is racial, ethnic and geographic disparity in the way the death penalty has been administered in Connecticut.

The legislative repeal abolishes the death penalty for future capital crimes committed in the state but allows executions for those who committed capital crimes before the new law was passed.

In June, the issue was raised at a hearing for Richard Roszkowski, a Trumbull construction worker convicted in 2009 of killing his former girlfriend, her 9-year-old daughter and his former roommate in Bridgeport.

Roszkowski's death sentence was overturned and he is awaiting a new penalty phase in his case.

Judge Samuel J. Sferrazza, the judge in the upcoming habeas corpus trial on death row inmates' claims, scheduled for Sept. 5, held off on weighing in on the matter Tuesday.

Questions about the repeal surfaced during arguments Tuesday on a defense motion to amend the convicts' claims in the case. Sferrezza did not rule on whether inmates can include questions about the new law's prospective provision in their existing petition. He said he would make that decision possibly later this week.

Prosecutors Michael E. O'Hare and Michael Proto agreed that questions about the prospective provision need to be resolved but say the racial disparity civil trial — which has been pending for years — is the not the case in which to resolve them. They said death row inmates can raise the matter in individual court filings.

"Death Row Legal Team Seeks to Argue Abolition For All," by Hugh McQuaid for CT News Junkie.

Lawyers for at least eight of the 10 men sentenced to death in Connecticut argued Tuesday that the state’s repeal of the death penalty was pertinent to their lawsuit alleging that capital punishment is too arbitrary to be constitutional.

The lawsuit rests upon the claim that Connecticut’s death sentence is imposed arbitrarily, with racial and geographic factors making certain offenders more likely to be sentenced to death.

In Rockville Superior Court on Tuesday morning, a team of lawyers argued that Judge Samuel Sferrazza should allow them to amend their complaint to account for the legislature’s repeal of the death penalty for future offenders.

Attorney David Golub said the prospective nature of the new law made the death sentence even more arbitrary because it allows some offenders to be executed while precluding other offenders guilty of similar crimes simply because of the date the crimes were committed.

“If I commit a crime on Monday I get the death penalty. If I commit the same crime on Tuesday I do not,” Golub said. “... It doesn’t make sense.”

However, lawyers from the Chief State’s Attorney’s Office asked the judge to deny the request to change the lawsuit. Assistant State’s Attorney Michael Proto said that rendering illegal the death sentences of the inmates already set to be executed was not lawmakers’ intent when they passed the bill back in April.

Proto said that the legislative enactment was not within the parameters of what the court was tasked with addressing. He said amending the complaint would also add more delays in a case where delay already is inevitable.

"Bias suit may include challenge of new death law," is the AP report, via the Hour.

The lawsuit, in which inmates claim the state's death penalty is racially and geographically biased, is set to go to trial on Sept. 5.

Golub asked Judge Samuel Sferrazza to expand the suit so lawyers could include arguments that the new law is unfair because Connecticut's recent death penalty repeal applies only to future crimes, and not to those already sentenced to death.

The judge did not immediately rule on Golub's request.

Earlier coverage of the Connecticut racial bias lawsuit begins at the link.  Related posts are in the geographic disparity and race indexes

Additional Coverage of the Marcus Druery Ruling

"Hearing Denied for Inmate Set for Execution Aug. 1," is Brandi Grissom's Texas Tribune report.

Brazos County District Court Judge J.D. Langley on Tuesday denied a motion to hold a full hearing on the claims of Marcus Druery's lawyers that he is incompetent for execution because he is severely mentally ill.

Kate Black, who represents Druery and is a staff attorney at the Texas Defender Service, said that the convicted murderer does not have a rational understanding of his upcoming execution and the she was disappointed with the judge's decision.

And:

Black said Druery's lawyers will appeal to the Texas Court of Criminal Appeals. Druery is scheduled to be executed Aug. 1.

The AP filing is, "Texas judge refuses to stop execution next week," via KTRK-TV.

A Brazos County judge has refused to stop the execution next week of a convicted murderer described by his lawyers as mentally incompetent for the death penalty.

State District Court Judge J.D. Langley rejected requests Tuesday by attorneys for Marcus Druery that his Aug. 1 execution be postponed to allow for a competency hearing. Langley says the legal threshold for a hearing hasn't been reached.

Dreury's attorneys say they'll appeal to the Texas Court of Criminal Appeals. The U.S. Supreme Court has ruled prisoners can't be executed unless they're aware of the punishment and know why they're being punished.

Two news reported noted yesterday have been expanded.  "Judge rejects motions to forestall Druery execution," by Maggie Kiely in the Bryan-College Station Eagle, and the Houston Chronicle report, "Killer called schizophrenic, but judge says execution can proceed," by Allan Turner, have additional coverage.

Earlier coverage of Marcus Druery's case begins at the link.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Texas Judge Rules Marcus Druery Not Entitled to Full Competency Hearing

In response to today’s denial, Marcus Druery's attorney Kate Black issued the following statement:

“We are disappointed that Mr. Druery continues to be denied a full and fair hearing about his competency to be executed. Mr. Druery’s execution would violate the Eighth Amendment’s ban on cruel or unusual punishment because he suffers from a psychotic disorder that renders him incompetent to be executed. The State’s own mental health professionals have diagnosed him as schizophrenic, noting that he suffers from delusional and paranoid thoughts and auditory hallucinations. Mr. Druery has no rational understanding of the connection between the crime for which he was convicted and his execution. Texas must allow Mr. Druery’s counsel  the opportunity to fairly present the evidence of Mr. Druery’s mental illness so that he may establish his incompetence for execution. We intend to appeal today’s denial to the Texas Court of Criminal Appeals.”

Jordan Smith posts, "Is Druery Sane Enough to Die?" at the Austin Chronicle.

Although he's been hearing voices for years, believes that he and his cell on Texas' death row are "wired," and has spent a significant amount of time in the prison system's psychiatric ward, a judge in Brazos County today denied to hold a competency hearing to determine if Marcus Druery is indeed sane enough to die. Druery was sent to death row for the kidnapping, robbery, and murder with two accomplices of 20-year-old Skyyler Browne in 2002. Druery would be the 484th person executed in Texas since the reinstatement of capital punishment, and the 245th killed under the watch of Gov. Rick Perry, if his execution goes forward as scheduled on Aug. 1. Unless a higher court, like Texas' Court of Criminal Appeals, steps in and reverses today's decision by Judge JD Langley, that is likely to happen.

Langley's decision to deny a full competency hearing for Druery means that, in Langley's view at least, Druery's lawyers Katherine Black and Greg Wiercioch with the Texas Defender Service did not meet the statutory burden of raising a "substantial doubt of the defendant's competency to be executed."

Druery has not before raised the issue of his competency, which is to say that no other court has already determined that he is sane enough to be executed. In the absence of a previous competency finding, the court is required to consider evidence brought by the defense before determining whether or not a condemned inmate is entitled to a hearing to determine his competency. In Druery's case, Black and Wiercioch put into a 36-page motion a bevy of evidence, including a sampling of more than 5,500 pages of prison and medical records, including numerous notes and statements Druery has made and over the years – many of which detail his feelings about his cell being wired and his food being poisoned.

"Bryan judge says next week's execution can go forward," is Allan Turner's post for the Houston Chronicle.

A Bryan judge Tuesday rejected an effort to halt next week's execution of convicted killer Marcus Druery so the one-time tire repairman and ranch hand's mental health could evaluated by psychiatrists.

Houston lawyers with the Texas Defender Service argued that Druery, 32, suffers from schizophrenia and lacked a "rational" understanding of why he is to be put to death on Aug. 1. State District Judge J.D. Langley ruled that a competency hearing in the case is not warranted.

And:

In a petition filed earlier this month, Defender Service lawyer Katherine Black argued that prison psychiatrists had diagnosed Druery as schizophrenic on several occasions and that his continuing behavior indicated he suffered from debilitating psychological problems.

Additionally, Dr. Diane Mosnik, a neuropsychologist hired by the Defender Service team, found that Druery lacks the capacity to rationally understand why he is to be executed."

Although Druery "has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed and firmly held delusional belief system," Mosnik wrote.

"Judge denies motions to deem death row inmate unfit for execution," by Maggie Kiely for the Bryan-College Station Eagle.

Judge J.D. Langley on Monday morning denied several motions filed by attorneys of death row inmate Marcus Druery, 32, of Bryan, claiming their client is incompetent and therefore unfit to be executed next week.

Druery has been on death row since 2003 when a Brazos County jury sentenced him to death after convicting him of killing Skyyler Browne, then robbing him and setting the body on fire.

Druery’s lawyers, Kate Black and Greg Wiercioch with the Texas Defender Service, say their client is schizophrenic and doesn’t have a rational understanding of why he’s scheduled to receive lethal injection Aug. 1, which would make him ineligible for execution based on a U.S. Supreme Court decision.

They pointed to thousands of pages of medical and prison records that detail Druery’s condition and used letters written by the inmate to support their position.

Black said while her client may be able to recite when his execution date is, he lacks understanding of why he’s to receive the punishment and believes he is innocent.

KBTX-TV posts, "Execution Upheld: Motion by Bryan Killer's Lawyers Denied."  It's by Steve Fullhart.

A Brazos County judge has denied a competency hearing and a withdrawal of an execution date for convicted killer Marcus Druery.

The 32-year-old is due to be put to death by lethal injection August 1.

Tuesday morning, his lawyers argued to Judge J.D. Langley that Druery has been diagnosed with schizophrenia and while he may have a factual understanding, he does not have a rational understanding that he is going to be put to death.

And:

According to the U.S. Supreme Court, an inmate must be aware of their execution and why they are being put to death before the act takes place.

Druery's lawyers will continue to attempt appeals on this matter.

Earlier coverage of Marcus Druery's case begins at the link.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Daugaard Could Oversee Three SD Executions

That's the title of a KELO-TV report by Brady Mallory, datelined Pierre, South Dakota.

There are decades between two high profile South Dakota murder cases.  But the three convicted criminals could be put to death in the same time span.  Eric Robert, Rodney Berget and Donald Moeller are all on death row.  This could be the first time in more than 100 years multiple criminals are put to death under one governor.

Governor Dennis Daugaard understands it is the most extreme form of punishment.

"Participating in the death penalty is not something one looks forward to but it is not something I am going to shrink from," Governor Dennis Daugaard said.

But Daugaard says he believes in the death penalty when life in prison is not enough.

And:

Daugaard says he is not going to be an advocate for the death penalty beyond extreme criminal cases.

"South Dakota citizens deserve to be protected from them in a permanent way,"  Daugaard said. "It doesn't mean we are becoming Texas."

Two other men are also on South Dakota's death row.  The last criminal to be put to death in the state was Elijah Page in 2007.  He was the first execution in 60 years.  The last time a governor oversaw multiple death penalties was in 1902 when death by hanging was still legal.

A Hearing in Oregon

Today's Oregonian reports, "Inmate Gary Haugen wages legal challenge to Gov. Kitzhaber's execution reprieve."  It's by Helen Jung.

Death-row inmate Gary Haugen is to appear in court Tuesday morning to once again fight for his right to be executed.

He and his lawyer are expected to urge a judge to declare Gov. John Kitzhaber's reprieve of Haugen's execution, which had been planned for last December 6, invalid.

The challenge has been in the works ever since Kitzhaber announced last November that he would not allow Haugen --  or any other death-row inmate -- to be executed so long as he is governor. Kitzhaber noted his moral opposition to capital punishment and called for a statewide debate over the death penalty.

In court filings, Haugen's attorney Harrison Latto argues that Kitzhaber's reprieve is invalid because it does not meet the legal definition of a reprieve. Haugen has not accepted the reprieve, Latto argues, and it lasts for an indefinite amount of time.

And:

But the state attorney general's office insists in filings that the governor is well within his constitutional powers and that the court does not have the authority to review the reasons for the governor's reprieve.

The state counters that unconditional reprieves do not require acceptance by the recipient and that the time period is definite -- the duration of Kitzhaber's term as governor.

The hearing is set for 9:30 a.m. in Marion County Circuit Court. It continues more than a year of legal proceedings since Haugen first waived his legal appeals last May and agreed to be executed.

The AP filing is, "Oregon death row inmate fighting reprieve," via the Daily Astorian.

Haugen wants to proceed to the death sentence he was given five years ago after he was convicted of the 2003 killing of a fellow inmate. Haugen was serving a life sentence at the time for a 1981 murder.

Oregon has executed two people since voters reinstated the death penalty in 1984. Kitzhaber has said there would be no executions as long as he is governor.

Earlier coverage from Oregon begins at the link.

Additional Coverage of the Warren Hill Stay of Execution

The updated AP report is, "Georgia high court grants stay of Monday execution," by Kate Brumback.  It's via the Montgomery Advertiser.

The Georgia Supreme Court stayed Monday's scheduled execution of a man convicted of killing a fellow prison inmate, saying it would review a defense challenge based on the state's recent switch to a single-drug injection.

Warren Lee Hill had been scheduled to be executed at 7 p.m. at the state penitentiary in Jackson. But the state high court said Monday afternoon it was unanimously staying the execution to consider Hill's appeal challenging Georgia's shift last week to a single-drug execution method.

The 52-year-old's case had drawn national attention as it put a spotlight on Georgia's toughest-in-the nation requirement for death row inmates who seek to prove they are mentally disabled. Hill's lawyers have argued he is mentally disabled and should be spared execution for that reason since the U.S. Supreme Court has ruled that executing the mentally disabled is cruel and unusual and Georgia law prohibits it.

The state has said Hill's defense lawyers failed to prove beyond a reasonable doubt that Hill is mentally disabled, which is required under Georgia law.

The high court on Monday also denied Hill's request that it reconsider a challenge on those grounds.

And:

Hill was the first Georgia inmate scheduled to be executed since the state announced last week it was changing from a three-drug combination to one lethal dose of the sedative pentobarbital to carry out court-ordered death sentences. The state previously used pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts. Hill's execution, initially scheduled for last Wednesday, was rescheduled for Monday when authorities announced the change in the execution procedure.

I am profoundly grateful that the Supreme Court entered this stay of execution," said Hill's lawyer, Brian Kammer, after learning of the court's decision to hear the appeal based on the execution method change.

At issue, the court said, was the question raised by the defense as to whether the switch to a single drug was subject to the state's Administrative Procedure Act, which requires public hearings before such a change is made. The high court's order did not specify how long its consideration of the issue would take.

The state attorney general's office had no comment on the court's decision to stay the execution.

Reuters posts, "Georgia inmate gets stay hours before scheduled execution," by David Beasley.

The court said it would decide whether the recent decision by the Department of Corrections, switching the lethal injection process from three drugs to one, violated the state's Administrative Procedures Act.

The act requires a 30-day public comment period before a change in procedure is allowed.

And:

Georgia officials did not say what prompted the change to the single drug. But in a legal challenge filed on Friday, Hill's attorney, Brian Kammer, said Georgia's supply of pancuronium bromide - one of the three drugs previously used in lethal injections - expired on July 1.

"Court issues stay in Ga. execution," at UPI.

"US state grants death row inmate temporary reprieve," by Chantal Valery for AFP.

"Georgia Supreme Court Stays Execution," by Steve Eder at the Wall Street Journal Law blog.

The Georgia Department of Corrections said in a statement last Tuesday that it “has been using pentobarbital in its execution process, and based upon the experience of other states and competent medical testimony, the drug has proven to be effective.”

A shortage in the supply of such drugs has impeded executions. Georgia said the drug supply was a consideration but that “responsible and professional” work was the main concern.

The Atlanta Journal-Constitution reported on Monday that a county judge had expressed “frustration” that the state’s supreme court hadn’t decided the issue, and in a bench ruling, encouraged the top court to rule.

The state’s position is that the change was not subject to the Administrative Procedure Act and therefore did not require a 30-day public comment period prior to a switch in protocol, according to the AJC article.

"Georgia Supremes Grant Last-Minute Execution Stay, But Not Because of Inmate’s IQ," by Debra Cassens Weiss for ABA Journal.

The Georgia Supreme Court order in Hill v. Owens is available in Adobe .pdf format.

Earlier coverage of Warren Hill's case begins at the link.

Hill Execution Stayed

The Georgia Supreme Court has stayed tonight's scheduled execution.  The ruling is available in Adobe. pdf format.

"State Supreme Court grants stay of execution to killer," is Bill Rankin's Atlanta Journal-Constitution post.

The Georgia Supreme Court on Monday unanimously granted a stay of execution to Warren Hill, a death-row inmate who was scheduled to be put to death at 7 p.m.

The court said it would decide whether the Department of Corrections' recent decision to switch its lethal-injection process from three drugs to one violates the state Administrative Procedure Act.

Earlier Monday, a Fulton County judge had expressed frustration the state Supreme Court had yet to decide the issue on the merits. In a ruling from the bench, Superior Court Judge Craig Schwall encouraged the court to issue a substantive ruling on the issue.

The state has contended the change in the lethal-injection procedure was not subject to the Administrative Procedure Act, which requires a 30-day public comment period before a change in procedure is allowed.

"Georgia Supreme Court Stays Hill's Execution," is the AP report, via WMAZ-TV.

"Condemned Georgia inmate gets reprieve," at CNN.

Earlier coverage of Warren Hill's case begins at the link.

More on the Death Penalty from Robert Wilbur

"Witness to Innocence: Wrongful Execution and Exoneration," is Robert Wilbur latest news analysis on capital punishment at Truthout.

Randy Steidl was pissed off. And when he was not pissed off, he was enraged. Pissed off and enraged at what the criminal "justice" system was doing to him. But for his anger, he thinks he might have gone insane. Steidl spent twelve years on Illinois' death row, awaiting execution by lethal injection and five more years as an LWOP (Life Without Parole) prisoner before he was finally exonerated of the horrendous crime he did not commit.

Steidl's ordeal began in 1977 when he was arrested for stabbing and burning the bodies of two newlyweds, Karen and Dyke Rhoads. Within a mere 90 days, he found himself on death row, thanks to the perjury of two drunks, a prison stool pigeon and the ineptitude of a lawyer who failed to present evidence to the jury that would have exculpated Steidl.

In the ensuing years, the case, like most death penalty cases, crept its way through state and then federal court. After twelve years, a state appeals court judge reduced Steidl's sentence to LWOP - which infuriated him even more than the executioner's needle. In an even, unyielding voice Steidl condemned a system that "preys on the poor and on people of color," on a "mentality that cops and prosecutors can do anything they want," where "bar association disciplinary committees are good ole boy clubs."

Then came the break. Federal Judge Michael McCuskey overturned Steidl's conviction and ordered the state to try him anew. This opened up a new investigation that completely cleared Steidl, and the state decided not to go through the charade of another trial.

And:

How many men (and women) were as fortunate as Steidl to escape the death gurney ... sometimes by a matter of minutes? I spoke with an invaluable source for this series of articles, Richard C. Dieter JD, executive director of the Death Penalty Information Center. Dieter told me that, since capital punishment resumed with the Furman case, there have been 140 confirmed exonerations of death row inmates. Steidl told me sarcastically that pre-Furman executions, when people were killed at the rate of three or four a week in some states, don't count.

What about the most troubling question: How many innocent people has America sent to their death? We are fairly certain of four and a likely fifth only. Steve Hall, the director of the Texas anti-death penalty group StandDown, told me the names: Ruben Cantu, Texas; Carlos DeLuna, Texas; Todd Willingham, Texas; Larry Griffen, Missouri; and, very likely, Gary Graham, Texas. Hall and Steidl believe the body count is much higher; Steidl estimates it's about 10 percent of those executed. If you take the ratio of executions to proven exonerations, the figure jumps to an astounding 28 percent. Dieter, no friend of the death penalty, believes that there have been very few wrongful executions and that there have only been a few on top of the proven four (or five, counting Graham).

Marcus Druery

"Lawyers Argue Inmate Incompetent for Aug. 1 Execution," is Brandi Grissom's post at Texas Tribune, today.  Here's the beginning:

Marcus Druery says that his cell on death row at Livingston's Polunsky Unit is wired. The wires, he believes, carry voices into his cell and transport his thoughts to other people. Prison staff members, he claims, have contaminated his food with feces, urine and insects.

Druery, 32, is scheduled to be executed Aug. 1 for the 2002 fatal shooting of a 20-year-old man in Brazos County. On Tuesday, his lawyers will ask a judge to appoint experts to examine the convicted murderer, who they argue is ineligible for execution because of his severe mental illness.

“He started to experience voices and hearing echoes in his cell and has deteriorated pretty quickly since arriving on death row,” said Kate Black, who represents Druery and is a staff attorney at the Texas Defender Service.

A spokeswoman for the Brazos County district attorney’s office declined to comment on the ongoing case, but said that the state would file a response to Druery’s motion before the hearing.

The U.S. Supreme Court ruled in 2007 in another Texas death penalty case, Panetti v. Quarterman, that it isn’t enough for prisoners to simply understand the fact that they will be executed and are being punished for a crime. The court ruled that inmates must have enough mental capacity to have “a rational understanding of it.”

And:

At Tuesday's hearing, Druery’s lawyers will ask the judge to appoint two independent experts to evaluate his mental competency. In documents requesting the hearing, they wrote that Druery’s “psychotic disorder prevents a rational understanding of the connection between his crime and his punishment.”

Earlier coverage of Marcus Druery's case begins at the link

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Warren Hill - Deadline Today

"Judge rules against inmate scheduled to be executed today," is the latest update from the Atlanta Journal-Constitution.  It's by Bill Rankin.

A Fulton County judge on Monday ruled against an inmate who is scheduled to be executed tonight, saying Georgia's recent changes to its lethal-injection protocol do not violate state law.

Superior Court Judge Craig Schwall, however, said he would like the Georgia Supreme Court to issue a substantive decision as to whether the changes violate the state Administrative Procedure Act. The law requires a 30-day public comment period before changes are implemented. Hill's attorneys contend the change in protocol needs to go through such procedures.

Warren Hill is on death row for killing a fellow inmate in a southwest Georgia prison. He is scheduled to be put to death at 7 p.m.

Hill is also challenging the state's law that determines whether an inmate is mentally disabled — and thus ineligible to be executed. Two state judges — both hearing appeals filed by Hill years after his 1991 trial — have found that Hill is more likely than not to be mentally disabled. But Hill has not cleared the state's stringent legal threshold that requires capital defendants to prove their mental retardation beyond a reasonable doubt. Georgia's law is the only one of its kind in the country.

There is extensive news coverage and commentary.

"Last Chance to Stop Tonight's Execution," from Courthouse News Service.

"Georgia inmate's impending execution stirs controversy," by Melanie Eversley at USA Today.

"US state of Georgia to execute mentally handicapped man," by AFP.

"'Cruel' Georgia Set To Execute Mentally Handicapped Warren Hill," by Ewan Palmer For International Business Times.

Among the prominent commentaries:

"Supreme Court: Protect Intellectually Disabled GA Man From Execution," is by Margaret Nygren at Huffington Post.  She's the Executive Director and CEO, American Association on Intellectual and Developmental Disabilities.

My organization, the American Association of Intellectual and Developmental Disabilities (AAIDD), is the oldest professional society concerned with intellectual and developmental disabilities. For decades AAIDD has provided clinicians, courts and government agencies with authoritative definitions and explanations of intellectual disability and protocols for appropriate treatment and support systems.

In 1988, Georgia became the first state to prohibit the execution of people with intellectual disability. Georgia inspired a national movement to protect the intellectually disabled from execution, culminating in Atkins v. Virginia, a 2002 U.S. Supreme Court decision which prohibited the execution of people with intellectual disability as unconstitutional. In the Atkins decision, the Supreme Court specifically endorsed AAIDD's clinical definition of what was known as "mental retardation," recognizing that people with intellectual disability are both inherently less culpable and are also at special risk of wrongful execution because of the difficulty faced by courts and attorneys in identifying the syndrome based on superficial indicators of "normality."

Warren Hill has been found to have an intellectual disability by numerous experts as well as a Georgia state court judge. This finding has been unchallenged by opposing counsel on appeal or by reviewing courts. Standardized test scores from his elementary and middle schools placed Mr. Hill in the bottom 2-3% of his peers in academic ability. Mr. Hill's elementary, middle and high school teachers testified that he demonstrated clear evidence of intellectual disability throughout his schooling and was the beneficiary of "social promotion" because of the lack of special education programs at his schools. However, despite the overwhelming evidence of his disability, the state of Georgia's standard for proving intellectual disability -- the strictest in the nation -- has left Mr. Hill unprotected despite a Supreme Court ruling which prohibits executing the intellectually disabled.

In Georgia, the state which led the nation in protecting those with intellectual disability from capital punishment, defendants must prove that they are intellectually disabled "beyond a reasonable doubt," the strongest standard of proof in the law. As Dr. Robert Latzman, a clinical psychologist at Georgia State University, stated, the problem is that lawyers often look for black and white answers, adding, "we don't do that in the psychology world. We don't play in yes and no's, we play in statistics and probability. That makes 'beyond a reasonable doubt' an impossible standard to attain."

Legal experts have noted that the U.S. Supreme Court's landmark ruling in Atkins v. Virginia has been undermined by varying state standards for proving intellectual disability.

"Warren Hill: 10 reasons why Georgia should not execute him," is by Ed Pilkington for the Guardian.

Earlier coverage of Warren Hill's case begins at the link.

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, in the mental retardation index.

Kentucky Proposes Switch to Single-Drug Lethal Injection

The Louisville Courier-Journal reports, "Kentucky proposes single-drug execution method."  It's by Mike Wynn.

The state is proposing use of a single drug for lethal injections to replace the three-drug cocktail that death-row inmates have challenged as unconstitutional.

Kentucky Justice Cabinet officials filed the regulatory changes Friday, outlining a new protocol that would allow wardens to execute inmates with an intravenous solution of either sodium thiopental or pentobarbital, instead of the combination of sodium thiopental, pancuronium bromide and potassium chloride.

Death penalty opponents and inmates have argued that the three-drug mixture violates the constitutional prohibition on cruel and unusual punishment by producing more pain compared to the one-drug method.

The fight over Kentucky’s method has been going on for a year and a half, and the debate has been one of the factors that have held up executions in recent years in the state. Executions cannot resume until the state’s protocol passes muster.

In April, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to change the protocol within 90 days or defend the mixture in his court.

Jennifer Brislin, spokeswoman for the justice cabinet, and Shelley Catharine Johnson, a spokeswoman for the Attorney General’s Office, both declined to comment on the changes Friday.

The proposals are scheduled for a public hearing Sept. 25 and could appear before the state’s Administrative Regulation Review Subcommittee as soon as October. But any controversy could push the proposed regulations’ effective date as far back as January.

Advocates on both sides of the debate remained divided Friday afternoon.

Katherine Nichols, president of Kentuckians Voice for Crime Victims, said the group supports measures that would allow executions to move forward.

David Barron, an assistant public advocate with the Kentucky Department of Public Advocacy, said death-row inmates would continue legal fights against lethal injection under the proposed regulations, which he said leave many issues unresolved and create new problems.

The Lexington Herald-Leader carries the AP report, "Ky. switching to use of 1 drug in executions," written by Brett Barrouquere.

New regulations filed Friday also give the state two drug options, either the anesthetic sodium thiopental or the barbiturate pentobarbital.

Kentucky joins at least seven other states that use one drug in lethal injections.

The change means the state could resume lethal injections later this year.

A public hearing on the execution proposal is scheduled for Sept. 25 in Frankfort and the new regulations are expected to take effect 30 days later.

Justice and Public Safety Cabinet spokeswoman Jennifer Brislin declined to comment on the regulations.

The new regulations also allow the state to use two drugs - the anti-seizure medication midazolam, better known as Versed, and hydromophone, an analgesic known commonly as Dilaudad - if the drugs used in a single-drug execution are not available seven days before a scheduled lethal injection. Prison officials will have to notify the inmate a week before the execution which method will be used.

Under the new rules, if the warden determines the inmate has not died from the first dose of the chemicals, successive injections may be ordered until the inmate is deceased. If the inmate isn't dead after 10 minutes, the warden may order an injection of 60 mg of hydromorphone until death occurs.

The regulations cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

"One drug execution protocol in Kentucky," by Greg Stotelmyer for WTVQ-TV.

Justice and prison system officials refused to comment about the proposed new regs which will undergo a public hearing September 25 and could then go into place 30 days later.

And:

The trio of regs filed Friday give the prison system two different options for what drug to use.
 
Currently 33 men and one woman are on death row.

Earlier coverage of Kentucky lethal injection begins at the link.  Related posts are in the lethal injection category index.

New Jersey's Lead in Eyewitness ID Issues

"New Jersey Court Issues Guidance for Juries About Reliability of Eyewitnesses," is the New York Times report by Benjamin Weiser.  Here's an extended excerpt:

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.

Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”

“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.

“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.

“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”

Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.

Earlier coverage of eyewitness identification reforms from New Jersey begins at the link.

Related posts are in the eyewitness identification index.

The State of Lethal Injection Procedures

"States Transition to One-Drug Executions," is the PBS NewsHour report.

Both Yokamon Hearn and Warren Hill were scheduled to die on Wednesday.

While Texas put to death Hearn as planned, in the state's first execution using a new process for lethal injection -- with one drug instead of a three-drug mix -- Georgia Department of Corrections postponed Hill's execution until Monday at 7 p.m. to also make the switch to the single sedative pentobarbital.

Both states followed the same procedural change as other state criminal justice departments -- including Ohio, Arizona and Idaho -- that have run into problems finding the supply of the three-drug mix. While the change revives the capital punishment issue, it's not one causing much controversy.

Experts Richard Dieter and Kent Scheidegger both explained what the change means in phone interviews with the NewsHour on Thursday.

The Wall Street Journal reports, "Texas Alters Execution Procedure."  It's by Steve Eder.

States in recent years have been looking for other drug options in response to a shortage of thiopental sodium, a drug used for almost three decades to render inmates unconscious before other drugs were used. Last year, the sole U.S. maker of thiopental sodium halted production amid a campaign by death-penalty opponents, and makers of other drugs used in executions have come under similar pressure.

The shortages have prompted some states to modify their procedures, with Arizona, Idaho, Ohio, Washington—and now Texas—switching to a single-drug option. On Tuesday, Georgia announced it was delaying an execution as it moves to a single-drug process, and that drug supplies were a factor in the change.

In March, 2011, Texas announced it was switching from using thiopental sodium to the sedative pentobarbital in its three-drug cocktail. Then, last week, Texas again changed its protocol, this time switching from the three-drug sequence to a single-dose of pentobarbital.

The latest change came after the expiration of Texas' stockpile of another drug used in executions, pancuronium bromide, said Jason Clark, a spokesman for the Texas Department of Criminal Justice. The state wasn't able to obtain replacements for that drug, he said.

Texas has administered six lethal injections this year and has eight more scheduled.

"By switching to a single-drug protocol, we are able to fulfill our statutory responsibility to carry out all executions currently scheduled," Mr. Clark said.

Earlier coverage of Hearn's execution begins at the link.  Coverage is also available on Texas' and Georgia's switch to single-drug lethal injection executions is also available.

A View From the Trenches of Death Penalty Appeals

That's the title of Amanda Bronstad's report in the National Law Journal.

In May, Victor Stephens, who is black, pleaded guilty to charges stemming from the shooting of a white store owner. The plea, which came after he had been granted a new trial, brought a life sentence but removed him permanently from death row in Alabama, where he was first sentenced in 1987.

Stephens' attorney, J.S. "Chris" Christie Jr., is a partner at Bradley Arant Boult Cummings in Birmingham, Ala., and co-chairman of the firm's pro bono committee. According to Christie, Stephens was the third inmate the firm has gotten off death row since it began handling capital cases in 1988. Christie talked to The National Law Journal about Bradley Arant's death penalty work, for which the firm will receive an exceptional service award from the American Bar Association's death penalty project next month.

And:

NLJ: The firm has represented 19 people on death row in Alabama so far. How does that compare to the total number of people on death row in the state?

C.C.: Alabama has about 200 people on death row. The number changes. For example, Victor Stephens was taken off in May 2012, but two people were added. The exact number was 201, so about 11 percent of the people on death row.

NLJ: Of those 19 cases, one person was executed and two died in prison. Stephens is one of three people the firm has successfully gotten removed from death row. Talk about that case.

C.C.: This is something I worked on from 1993 to 2012. Victor Stephens in 1986 was part of robbing a convenience store. The store owner shot him and, while the store owner was reloading his gun, Victor Stephens shot the store owner with a .25-caliber pistol that he had. Victor Stephens confessed to shooting the store owner with a .25 pistol after being shot with a shot gun.

At his trial in 1987, he was convicted of capital murder. That night, they held a sentencing hearing. The jury recommended life without parole. The judge held the final sentencing until after he'd been nominated to the Court of Criminal Appeals and before the general election that fall, and sentenced Victor Stephens to death, overriding the jury's finding that he should be sentenced to life without parole. That went up through the normal appellate process and post conviction proceedings started — and that's when I got involved, in 1993.

NLJ: What was the legal argument that got him off death row?

C.C.: The argument on which he actually was awarded a new trial was on the jury selection. The prosecution used 21 of its 22 regular strikes, and its first 21 strikes were to remove blacks from the jury. His counsel made a timely objection, and the state offered what appeared to be race-neutral reasons for strikes of 21 blacks.

 Related posts are in the ABA and pro bono category indexes.

An Update on Warren Hill From Georgia

The Atlanta Journal-Constitution posts the AP report, "Ga. inmate's lawyer asks court to halt execution."

A state court has declined to halt the execution of a Georgia death row inmate set to die Monday.

A Butts County Superior Court judge Thursday denied requests filed by Warren Lee Hill's lawyer. Lawyer Brian Kammer argued Hill is mentally disabled and shouldn't be executed. Similar requests are pending at the U.S. Supreme Court.

The court said Hill has proven an IQ of 70 beyond a reasonable doubt, and he meets the overall criteria for being mentally disabled by a preponderance of the evidence.

But Georgia law requires death row inmates to prove beyond a reasonable doubt they are mentally disabled to avoid execution, and the court said Hill failed to do that.

Chicago lawyer and law professor Andrea Lyon posts, "Undue Burden," at Huffington Post.  Here's the beginning:

Monday, July 23 2012, Warren Hill is scheduled to be executed in Georgia. He was convicted of killing another inmate while serving a life sentence for killing his girlfriend, according to the Atlanta Journal-Constitution. This is despite the fact that Warren Hill is mentally retarded. Georgia was one of the first states to ban the execution of the mentally retarded; but there is a catch. The defendant bears the burden of proving he is mentally retarded beyond a reasonable doubt. This is the only state that requires the defense to bear this burden. Only the Board of Pardons and Parole can stop his execution now.

While a judge has found that Mr. Hill is mentally retarded, with an IQ of only 70, he didn't find that fact beyond a reasonable doubt but rather by a preponderance of the evidence, which is the ordinary standard in civil matters, more likely than not. And it is on this technical basis that he will be executed. The Georgia Supreme Court voted four to three to reinstate Hill's death sentence, and at the end of last year, the U.S. Court of Appeals in Atlanta ruled seven to four to uphold that death sentence even though the majority seemed to think it "unwise."

In Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, however the United States Supreme Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. In other words, the procedures and standards are details left to the states. No other state requires the defendant to bear this burden, either to prove mental retardation or anything else, just Georgia. History teaches us that these procedures and policies do not always remove the mentally retarded from the pool of those subject to execution, and this has proven to be the case here.

Earlier coverage of Warren Hill's case begins at the link.

News Coverage of Ohio Task Force Meeting

"State panel won’t collect race data on death penalty," is Andrew Welsh-Huggins' updated AP filing, via the Columbus Dispatch.  Here are extended excerpts:

An Ohio Supreme Court committee studying the state’s capital punishment law yesterday rejected a recommendation to collect past data to detect racial bias in death-penalty cases.

The committee also postponed votes on a recommendation to collect information in the future on all homicides that might be eligible for capital punishment as another way of detecting racial bias. The committee tabled a proposal to analyze existing death-penalty data collected by the state public defender’s office.

Those two proposals are likely to pass in the future when the committee gets more details about the recommendations, said James Brogan, a former state appeals court judge who is chairman of the committee.

Brogan said everyone agrees race shouldn’t play a role in the death penalty, but a number of studies nationally have already shown that is the case.

“We don’t know exactly the role in Ohio, although it does appear that in a number of cases, it seems more likely when a black defendant kills a white victim, that they’re more likely to receive the death penalty, than if a black kills a black, which is disconcerting,” Brogan said after the task force’s meeting.

Among precedents cited in the Race and Ethnicity subcommittee recommendations is a 2005 Associated Press study that found that Ohio offenders who killed white victims were more likely to face a death sentence than those whose victims were black.

And:

The committee approved three recommendations to:

• Require prosecutors, lawyers and judges involved in death-penalty cases to be trained to protect against racial bias.

• Allow lawyers to seek the removal of judges in cases where there is “a reasonable basis for concluding that the judge’s decision-making could be affected by racially discriminatory factors."

• Require defense attorneys to receive training in how best to proceed when they believe a potential juror is removed for possibly discriminatory reasons.

Another version of Welsh-Huggins' report is, "Ohio death penalty committee looks at racial bias," via the Marietta Times.

The committee rejected the creation of jury instructions involving race in death penalty cases that would also require jurors to report racial discrimination voiced by other jurors during deliberations.

And:

Ohio Supreme Court Chief Justice Maureen O'Connor convened the task force while making it clear it won't debate whether the state should have the death penalty.

The committee of prosecutors, defense attorneys, judges and death penalty experts is looking at a variety of issues, from how the law affects minorities to the role of clemency.

The committee is also studying whether Ohio's death sentences are proportional, meaning that the nature of a crime committed by one condemned inmate is similar to the crimes committed by others.

O'Connor says the committee's goal is to produce a fair, impartial and balanced analysis of the state's 30-year-old law.

City Beat Cincinnati reports, "Racial Bias in Death Penalty Cases Gets Ohio Supreme Court's Attention."  It's written by Hannah McCartney.

Ohio’s death penalty came under scrutiny again today, when the Ohio Supreme Court's Joint Task Force to Review the Administration of Ohio’s Death Penalty heard presentations from three different subcommittees on strategies to make sure the process in administering a death penalty sentence in Ohio is transparent and fair.

The task force heard presentations from the Law Enforcement Subcommittee, Race and Ethnicity Subcommittee and Clemency Subcommittee; the Clemency Subcommittee's recommendation was passed, while the Law Enforcement Subcommittee's recommendations were tabled for the next task force meeting, pending further review.

The Race and Ethnicity Subcommittee presented recommendations for dealing with evidence of longstanding racial bias in Ohio death penalty cases.

A 2005 Associated Press study concluded that offenders who killed white victims were significantly more likely to receive the death penalty than when victims were black, regardless of the race of the defendant. See the below chart, courtesy of the Associated Press, which charts the rate of death sentencing for defendants charged with killing white versus black victims during the course of the study, which was conducted from Oct. 1981-2002.

The Supreme Court’s Race and Ethnicity subcommittee made seven recommendations, three of which passed.

The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information, including future meeting dates.

Earlier coverage of the Task Force begins at the link.  Related posts are in the race and study commission category indexes.

OH Death Penalty Commission Meets to Examine Racial Issues

"Death penalty committee looks at racial bias," is Andrew Welsh-Huggins' AP report, via the Ohio News Network.

An Ohio Supreme Court committee studying the state's capital punishment law plans to vote on recommendations Thursday requiring the collection of data to detect racial bias in death penalty cases.

The data would include a review of past cases as well as collecting information in the future on all homicides that might be eligible for capital punishment.

Other recommendations would require prosecutors, lawyers and judges involved in death penalty cases to be trained to protect against racial bias.

Among precedents cited for collecting the data is a 2005 Associated Press study that found offenders who killed white victims were more likely to face a death sentence than those whose victims were black.

Earlier coverage of Ohio's Joint Task Force to Study Administration of the Death Penalty begins at the link.

Related posts are in the race and study commission category indexes.

Thursday

I'll be traveling much of today.  Please take the opportunity to look at the excellent sites linked in the left-column webroll.

Texas Execution

Texas carried out its sixth execution of 2012, Wednesday night in Huntsville.  It was the state's 483rd post-Furman execution since 1982.  Texas accounts for more than 37% of the nation's executions. 

The AP report on the execution of Yokamon Hearn is, "Man condemned for Dallas carjacking is executed."  It's by Michael Graczyk, via the Fort Worth Star-Telegram. 

He showed no apparent unusual reaction to the drug and was pronounced dead about 25 minutes after the lethal dose began flowing.

Ohio, Arizona, Idaho and Washington have adopted a single-drug procedure, and this week Georgia said it would do so.

I would point out that under Texas' three drug lethal injections, death was generally declared in ten minutes or less from the time the drugs were administered.

And:

Earlier Wednesday, the U.S. Supreme Court rejected his appeals to halt the execution. None addressed the change in the state's execution drug policy.

In one appeal, Hearn's lawyers said his mother drank alcohol while she was pregnant, stunting his neurological development and leaving him with mental impairments that disqualify him from execution under earlier Supreme Court rulings.

In another, his appeals lawyers said his trial attorneys failed to investigate his background and uncover evidence of mental impairment and a troubled childhood.

Hearn was within 15 minutes of being executed in 2004 when the 5th U.S. Circuit Court of Appeals halted his execution to allow him to pursue his claim that he is mentally retarded because of fetal alcohol syndrome.

Hearn is one of two inmates identified in a Star-Telegram article this month who have appealed death sentences on the grounds that they have brain damage from fetal alcohol syndrome, caused by their mothers' alcohol abuse during pregnancy. The other inmate, Mark Anthony Soliz of Fort Worth, was convicted in the fatal shooting of a Godley grandmother.

Hearn's execution was the 244th 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.

To date, there have been 24 executions in the nation this year; a total of 1,301 post-Furman executions since 1977.  According to TDCJ, eight additional executions have been scheduled for 2012 by state district courts.  Marcus Druery is scheduled to be executed on August 1.

More Coverage From Georgia

"Ga. switching to single-drug method for executions," is Kate Brumback's updated AP report, via Huffington Post.

The Georgia Department of Corrections said it will begin using a single dose of the sedative pentobarbital to carry out court-ordered death sentences. It had been using pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts.

Georgia inmate Warren Lee Hill had been set to be executed Wednesday evening, but authorities said that execution has now been rescheduled for Monday.

Hill's attorney, Brian Kammer, expressed concern about the switch to a single-drug procedure even as he waged legal efforts to spare the inmate. "I think it is troubling to be confronted with a significant change in the execution protocol a day before the scheduled execution of my client," Kammer said in an email.

And:

Georgia's corrections department had been researching a switch for about a year, spokeswoman Gwendolyn Hogan said Tuesday. She added that Corrections Commissioner Brian Owens ordered the change after his staff spoke with corrections officials around the country about their execution procedures and reviewed court opinions and the testimony of medical experts.

Georgia began using pentobarbital as part of its three-drug combination last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its manufacturer said it would try to prevent its use in executions.

Three other states – Arizona, Idaho and Ohio – have carried out single-drug executions using pentobarbital, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Washington state has used the method with sodium thiopental, the center said. A total of 11 executions have been carried out using pentobarbital alone, said center executive director Richard Dieter.

Texas, the nation's most active death penalty state, last week announced that it would change to a single-drug method using pentobarbital. Its first execution using that method is set for Wednesday.

Missouri has said it plans to use propofol, the anesthetic blamed for Michael Jackson's death, for single-drug executions.

"Georgia delays execution amid drug protocol change," by David Beasley for Reuters.

Warren Lee Hill, 52, was set to be executed on Wednesday for beating another inmate to death in 1990 while serving a life sentence for fatally shooting his girlfriend.

The state Department of Corrections said the execution would be delayed until Monday as Georgia switches from a three-drug cocktail that included the sedative pentobarbital to pentobarbital alone.

"The Department has been using pentobarbital in its execution process, and based upon the experience of other states and competent medical testimony, the drug has proven to be effective," corrections officials said in a statement.

Officials did not say what prompted the change. Pentobarbital is sometimes used to euthanize animals.

Earlier coverage of Warren Hill's case begins at the link.

UN Speaks Out on Hearn & Hill Cases

"UN expert urges US authorities to stop execution of two persons with disabilities," is the news release from the UN News Centre.  Here's the complete text.

An independent United Nations human rights expert has urged United States authorities to stop the execution of two people with psychosocial disabilities who are scheduled to be put to death tomorrow in the states of Georgia and Texas.

“It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities,” said the UN Special Rapporteur on arbitrary executions, Christof Heyns.

“It is also contrary to the United States Supreme Court ruling Atkins v Virginia, which held that such executions are unconstitutional,” added the expert, who reports in an independent and unpaid capacity to the UN Human Rights Council in Geneva.

Warren Hill and Yokamon Laneal Hearn were convicted of murder in separate incidents, and the convictions have been the subject of a number of legal appeals based on the defendants’ mental health, according to a news release issued by the Office of the UN High Commissioner for Human Rights (OHCHR).

However, their death sentences were upheld despite claims that the defendants had psychosocial disabilities, and the existence of a federal ban on such executions. On Monday, the Georgia Board of Pardons and Paroles rejected clemency for Mr. Hill.

Mr. Heyns called on the state authorities “to demonstrate the moral and legal leadership expected of the strong democracy that the United States is by commuting the death sentences of Hill and Hearn, and show the importance it gives to the fundamental right to life.”

In relation to Mr. Hill’s case, the Special Rapporteur voiced particular concern that Georgia is now the only US state that requires proof of what it calls ‘mental retardation beyond a reasonable doubt,’ rather than a preponderance of the evidence as in other jurisdictions, although Georgia was the first state in the US to recognize that such defendants should not be executed.

“This higher standard of proof, making it very difficult to demonstrate that one actually suffers from a psychosocial disability may, I fear, mean that Mr. Hill, scheduled for execution tomorrow, would be a fatality in violation of international as well as domestic law,” Mr. Heyns said.

Regarding Mr. Hearn’s scheduled execution in Texas, the expert noted that “there is evidence to suggest that he also suffers from psychosocial disabilities. This includes an expert opinion that he is affected by structural brain dysfunction likely to have been caused by his mother’s alcohol abuse during pregnancy.”

According to the OHCHR news release, information received by the expert raises issues of a lack of a proper investigation, including mitigating factors, arbitrariness and non-compliance with fair trial safeguards that potentially constitute violations of international standards applicable to the death penalty.

"U.N. expert: Ga., Texas executions illegal," is the UPI report.

A U.N. rights specialist appealed to Georgia and Texas not to execute two men, arguing they're mentally disabled and killing them would be unconstitutional.

"It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities," said Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions.

"It is also contrary to the United States Supreme Court ruling Atkins vs. Virginia, which held that such executions are unconstitutional," he said.

A rapporteur is a person responsible for compiling reports and presenting them to a governing body.

The Supreme Court ruled 6-3 June 30, 2002, that executing mentally retarded individuals violates the Eighth Amendment's ban on cruel and unusual punishment.

Warren Hill was convicted of murder in Georgia and Yokamon Hearn was convicted of murder in Texas.

Their convictions have been the subject of a number of legal appeals based on the defendants' mental health.

Reuters posts, "U.N. expert says U.S. executions, due Wednesday, unconstitutional," by Stephanie Nebehay.

A United Nations human rights investigator called on the U.S. states of Georgia and Texas to halt the execution of two men, scheduled for Wednesday, saying that the prisoners were mentally disabled and killing them would breach the U.S. constitution.

Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions, said that it was a "violation of death penalty safeguards" to execute someone suffering from "psychosocial disabilities" and said their death sentences should be commuted.

"It is also contrary to the U.S. Supreme Court ruling Atkins v. Virginia which held that such executions are unconstitutional," Heyns said in a statement, referring to a 2002 ruling that bans executing mentally retarded defendants.

Warren Hill and Yokamon Laneal Hearn were found guilty of murder in Georgia and Texas, respectively, and their convictions have been the subject of a number of legal appeals based on the defendants' mental health, he said.

Earlier coverage of the Yokamon Hearn and Warren Hill cases at the links; related posts in the international category index.

Texas Execution Scheduled Wednesday

Texas is scheduled to carry out its sixth execution of 2012, tonight in Huntsville.  It would be the state's 483rd post-Furman execution since 1982.  Texas accounts for more than 37% of the nation's executions.  Texas' last execution was on April 26.

There is extensive controversy about the scheduled execution of Yokamon Hearn.  The AP report is, "Carjacker Will Be Texas' 1st Single-Drug Execution," via the New York Times.

An inmate who once bragged about the headlines generated by the carjacking and murder that sent him to death row will be noted in Texas history for a different reason: Yokamon Hearn will be the first prisoner executed under the state's new single-drug procedure.

Hearn, 33, is set to die Wednesday for the March 1998 fatal shooting of Frank Meziere, a 23-year-old suburban Dallas stockbroker who was abducted at gunpoint while he cleaned his car at a self-service car wash in Dallas. Meziere was driven to an industrial area and shot 10 times before his body was dumped on the side of a road.

Hearn will be the sixth Texas prisoner executed this year, but the first since the Texas Department of Criminal Justice announced its switch to single-drug lethal injections amid a drug shortage that has left states scrambling for acceptable alternatives.

Texas said last week it will now use a single dose of pentobarbital, instead of using the sedative in combination with two other drugs. Ohio became the first state a year ago to use a single drug, and several other states have since made the switch. Courts have upheld the practice, despite death penalty opponents' claims that it takes prisoners take longer to die with a single drug.

Hearn has not made an appeal based on method of execution or claims of innocence. Instead, his appeals have focused on his mental capacity, the competence of his attorneys and whether recent lower federal court rulings improperly blocked his current lawyers from pursuing appeals.

In 2004, a federal court spared Hearn less than an hour before he could have been taken to the Huntsville death chamber so that it could consider arguments that he was mentally impaired and therefore ineligible for the death penalty.

That appeal subsequently was rejected, and attorneys more recently told the U.S. Supreme Court that while tests show Hearn's IQ is considerably higher than levels determining mental impairment, he suffers from a fetal alcohol disorder that should disqualify him from execution.

As I pointed out in a post on Monday, the real issue in Hearn's case now is the failure of his trial and initial post-conviction appeal lawyers to examine his life history for mitigating factors to present to the jury during the punishment phase of his trial.  A 2012 Supreme Court ruling, Martinez v. Ryan held that prisoners who have compelling claims of ineffective assistance of trial counsel, can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

Hearn's execution would be the 244th 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.

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.

To date, there have been 23 executions in the nation this year; a total of 1,300 post-Furman executions since 1977.  According to TDCJ, eight additional executions have been scheduled for 2012 by state district courts.

I'll have more on the Hearn case and the case of Warren Hill in the next post.  Both cases are receiving extensive media coverage and international attention.

Earlier coverage of Yokamon Hearn's case begins at the link; coverage of Texas' switch to a single-drug lethal injection procedure is also available.

Georgia Changes Execution Procedure; Delays Warren Hill Execution

"State changes lethal injection protocal, reschedules execution," is the breaking news report from the Atlanta Journal-Constitution.  It's by Rhonda Cook and Bill Rankin.

Corrections Commissioner Brian Owens on Tuesday said the state will begin using only one lethal injection drug — the sedative pentobarbital — instead of three.

In doing so, Owens rescheduled Wednesday's planned execution of Warren Hill until Monday at 7 p.m.

"The department has been using pentobarbital in its execution process and based upon the experience of other states and compentent medical testimony the drug has proven to be effective," said a statement released by the Department of Corrections. "The department is committed to carrying out the order of the court in the most responsible and professional manner possible."

Hill sits on death row for killing a fellow inmate at a southwest Georgia prison. His lawyers are asking the U.S. Supreme Court to stop the execution, saying it would be unconstitutional because Hill is mentally disabled.

The State Board of Pardons and Paroles on Monday rejected Hill's request for clemency.

Earlier coverage of Warren Hill's case begins at the link. 

Texas recently switched its procedure to use a single-drug lethal injection.  Arizona, Idaho, Ohio and Washington have used single-drug lethal injection for executions.  Missouri recently announced plans to use Propofol for its future executions.

Related posts are in the lethal injection index.

Continued RJA Commentary From North Carolina

Duke University School of Law Professor James E. Coleman Jr.writes, "Dishonest decree," for Raleigh's News & Observer.

When the General Assembly initially tried honestly to repeal the Racial Justice Act, the governor vetoed the bill, and the legislature did not have the votes to override her veto. So the Gang of Republicans who controls the General Assembly, with the help of five Democrats who were not honest enough to admit they wanted to repeal the RJA, passed a bill that they claimed was a compromise. Their override of the governor’s veto of that fig leaf effectively repeals the Racial Justice Act.

Like the bill the General Assembly also passed to bar the use of scientific climate change data, repeal of the Racial Justice Act is governing by dishonest decree: If you don’t like the real facts, replace them with your own. But nothing the General Assembly can do will hold back the rising water levels on the coast and repealing the Racial Justice Act will not eliminate the racial discrimination that it uncovered.

Perhaps the Republicans next will pass the Civil Rights Act of the 21st Century, making all of us Honorary Whites and forever closing the book on racial discrimination in North Carolina.

"North Carolina Courts Continue to Struggle with Racial Bias in Jury Selection," is the title of Matthew Lynch's post at Huffington Post.  He's Chair of Education at Langston University.

In 1986, the Supreme Court held that prosecutors could not purposefully exclude African-Americans from trial juries "on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors." While all states permit attorneys to make "peremptory" challenges--dismissing a potential juror without stating a reason--the Court said the Fourteenth Amendment's Equal Protection Clause precluded prosecutors from using that power "to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."

More than 25 years later, some states continue to struggle with the Supreme Court's mandate. In April, North Carolina Superior Court Judge Gregory A. Weeks commuted the death sentence of Marcus Robinson, an African-American convicted of a 1991 murder. Weeks acted under the Racial Justice Act, a law passed by the North Carolina General Assembly in 2009 that stated, "No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race." Among other provisions, death row inmates could present evidence that race "was a significant factor in decisions to exercise peremptory challenges during jury selection."

Robinson's attorneys presented a meticulous study by Michigan State University professors Barbara O'Brien and Linda Grosso, who reviewed the jury selection process in 173 North Carolina capital cases. They found that prosecutors were twice as likely to exclude African-American jurors with peremptory challenges than white jurors. Even adjusting for other factors, O'Brien and Grosso concluded, and Judge Weeks agreed, "prosecutors have intentionally discriminated against black [jurors] during jury selection by prosecutors when seeking to impose death sentences in capital cases." This included defendants tried in the same county and time period as Robinson.

And:

Ultimately, the solution to North Carolina's problem may be found in the words of the great civil rights Justice Thurgood Marshall, who wrote separately in the 1986 Supreme Court case. While supporting the Court's decision, he lamented his colleagues didn't go far enough in remedying the problem of race-based peremptory challenges. "Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge," Marshall wrote. Instead, he felt it was time for the Court to eliminate such challenges altogether.

The Greenville Daily Reflector carries the OpEd, "Debating the death penalty," by John Hood of the John Locke Foundation.

For the activists who have fought for years to abolish North Carolina’s death penalty, the just-completed short session was a crushing disappointment. Their chief accomplishment, the Racial Justice Act of 2009, was substantially rewritten. Both chambers then voted to override Gov. Beverly Perdue’s veto

The Racial Justice Act was just the latest in a series of initiatives used by death-penalty foes to maintain a de facto moratorium on executions in North Carolina, as nearly every death row inmate had filed RJA claims to convert their sentences to life in prison. The newly rewritten RJA is no longer so easy to abuse. Rather than use old or irrelevant data to assert racial bias in sentencing, murderers on death row now have to cite recent statistics from the counties or prosecutorial districts where their sentences were imposed as well as other evidence directly related to the handling of their cases.

And:

The debate about capital punishment isn’t over. Perhaps its foes will convince the rest of us that it is morally wrong to execute criminals, or that as a practical matter its costs exceed its benefits. But the kinds of arguments they’ve been making lately are entirely unpersuasive.

"3 convicted murderers seek to use 2009 version of North Carolina's Racial Justice Act," is the news report in the Fayetteville Observer.  It's written by Paul Woolverton.  Here's the beginning:

State lawmakers this month revised the N.C. Racial Justice Act to make it harder for condemned prisoners to get off death row.

But three convicted murderers who will try to win claims in Cumberland County this fall want to base their arguments on the original 2009 version of the law. More than 150 other death-row inmates may try to do the same.

The passage of the new Racial Justice Act has further complicated the legal questions over what had been the second such law in the nation to give condemned prisoners an opportunity to argue that racism contributed to their sentences.

Should judges use the 2009 law or the 2012 revisions when considering claims filed before this summer? Resolving this question could end up extending the state's unofficial moratorium on executions instead of ending it as legislative leaders had hoped.

The three defendants in the Cumberland County cases, convicted of notorious murders, argue in court papers that the 2009 law shouldn't be taken away from them.

Prosecutors Rob Thompson of Fayetteville and Mike Silver of Winston-Salem, who are trying to keep the trio on death row, are expected to fight to solely use the 2012 law. They don't publicly discuss the cases outside of court.

The decision likely will pivot on whether the 2009 law gave the defendants a substantive, constitutionally protected right that they would lose if they can't use it anymore, said retired Forsyth County District Attorney Tom Keith.

Keith's staff worked on several pending Racial Justice Act claims while he was in office, and he has authored a paper analyzing the Racial Justice Act to be published in the North Carolina State Bar Journal.

Keith thinks the revised law should apply, but he doesn't expect the issue to be resolved until it is heard by the state Supreme Court.

Earlier coverage of North Carolina's Racial Justice Act begins at the link.  Related posts are in the race index.

Trial Update on Connecticut Racial Bias Questions

"Death row inmates back holding trial in prison," is the Connecticut AP report, via the Day.

Connecticut death row inmates who are suing the state over alleged racial and geographic biases in the state's death penalty are supporting a plan to hold the trial in a prison instead of a courthouse.

Inmates' lawyers said in a court document filed Friday that the plan by state officials was "adequate." The plan calls for the trial to be held at Northern Correctional Institution in Somers, which houses death row, beginning in September and be broadcast via a live video feed to Rockville Superior Court so the public can watch.

The trial would be held in one of the prison's dayrooms, where each inmate and his lawyer would sit together at their own table.

Nine of the 10 men on death row are plaintiffs in the appeal. The state repealed capital punishment for all future crimes earlier this year.

Inmates objected to an earlier plan by the state to hold the trial in Rockville and allow them to watch video feeds in their cells.

The plan to hold the trial in the prison still needs approval by a judge. A hearing on issue is scheduled for July 25 in Rockville.

And:

Six death row inmates are black and three are white, when blacks make up only 10 percent of the state's population. Inmates' lawyers also say several inmates on death row were prosecuted in Waterbury, bolstering claims of geographic bias.

Earlier coverage of questions of racial bias in Connecticut's death sentences begins at the link.

Also from Connecticut, "Death row inmate says new law unfair," by AP writer Pat Eaton-Robb.  It's via the Wilmington News Journal.

Daniel Webb is awaiting execution for the 1989 kidnapping and murder of a Connecticut bank executive, but he believes he is also paying a price for another, unrelated crime that has heavily influenced the state's debate on capital punishment.

Webb told The Associated Press in a death row interview that he thinks there would be no capital punishment in the state if not for the public's desire to execute the men responsible for the 2007 home-invasion slayings of a mother and her two daughters in suburban Cheshire. The only survivor of that crime, Dr. William Petit, lobbied to keep the death penalty for the men who killed his family, Steven Hayes and Joshua Komisarjevsky.

"Dr. Petit is angry with them and with his anger he wants to kill all of us," said Webb, who spoke by telephone from behind a glass window. "Now you are trying to increase my suffering and take away the little that I had because you want to make Komisarjevsky suffer. That's not right."

Webb was sentenced to die for the slaying in Hartford of Diane Gellenbeck, a 37-year-old Connecticut National Bank vice president, who was taken from a downtown parking garage and shot to death near a local golf course as she ran from an attempted sexual assault.

The state legislature in April abolished capital punishment, but only for future crimes. Gov. Dannel P. Malloy and key state lawmakers had insisted on that as a condition of their support for repeal in a long-running debate that focused on the Petit case.

Earlier coverage of the racial bias lawsuit and Connecticut's repeal of the death penalty begins at the links.

Yokamon Hearn & the Tattered Legacy of the Fifth Circuit Court of Appeals

Yokamon Hearn is scheduled to be executed by Texas on Wednesday, July 18, even though his trial and appeals lawyers never discovered – and no judge or jury ever considered – compelling life history evidence that would have explained why he came to be charged with capital murder and why he should have been sentenced to life in prison rather than death.

Even though the U.S. Supreme Court has found that cases such as Yokamon Hearn's should get evidentiary review, the Fifth Circuit once again is saying that U.S. Supreme Court precedent doesn't apply to Texas.

The Fifth Circuit has just denied Hearn's petition for review.  The Order is available in Adobe .pdf format.

As I've noted before, problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case Penry v. Lynaugh, and subsequently, in Penry v. Johnson.  The Court held that juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

For more than a decade, the Fifth Circuit allowed executions to continue in spite of the two Penry rulings.

Only after the Supreme Court intervened in the Abdul-Kabrir and Tennard cases did that dark chapter of Texas history close.  It is critically important that the Supreme Court intervene in this case to determine decisively whether its 2012 decision in Martinez v. Ryan applies to Texas.

In Martinez, the Court held that prisoners who have compelling claims of ineffective assistance of trial counsel, can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

A three-judge panel of the Fifth Circuit, however, recently decided that Martinez does not apply to Texas, in the case of Ibarra v. Thaler, thereby preventing prisoners from the country's most active death penalty state from having access to Martinez's protections. This is the ruling that Yokamon Hearn is attempting to challenge.

The Failures of Yokamon Hearn's Trial

Hearn was sentenced to death for the 1998 murder and kidnapping of Frank Meziere in Dallas. Pleadings show that his trial counsel conducted virtually no investigation into Hearn's life history, an essential part of any capital case. The jury that sentenced Hearn to die did not know that:

• Mr. Hearn's parents were severely impaired and neglected him throughout childhood;
• His mother's alcoholism was so severe that she drank to the point of passing out during her pregnancy with Mr. Hearn;
• Mr. Hearn has been diagnosed with a disabling condition known as Fetal Alcohol Syndrome;
• His mother also suffered from serious mental health problems throughout Mr. Hearn's life;·
• His father suffered from cognitive deficits and had a history of incarceration for violent offenses.

As a result of his parents' utter inability to meet his needs, Hearn suffered from mental health problems as a child.  At the age of ten, his suicidal thoughts resulted in emergency care.  Testing shows that he suffers from brain damage. All of these facts were discovered in investigations long after Mr. Hearn’s trial and his state and federal habeas proceedings were concluded. The jury that sentenced him heard none of this evidence.

Yokamon Hearn's First Postconviction Proceedings

After he was sentenced to death, new lawyers were appointed to represent Hearn on his post-conviction appeals. At that point, his new lawyers should have discovered and brought Hearn's life history evidence to the courts' attention, but they did not. They failed to do any investigation or raise any claim about trial counsel’s ineffective assistance.  Again, a critical failure of an essential part of the habeas attorney's role in a capital case's post-conviction review.

As a result, Mr. Hearn now suffers from what the Atlantic columnist Andrew Cohen recently described as "ineffective assistance of counsel squared."   If you haven't read his must-read column, I hope you'll do so now.

In March of this year in Martinez v. Ryan, the Supreme Court recognized for the first time that the situation presented in cases like Hearn's requires that courts review the case in depth. The Supreme Court called this a matter of fundamental fairness.

What changed with Martinez is that the Supreme Court recognized that prosecutors could no longer use procedural rules to bar federal court inquiries into bad lawyering in capital cases.  Because of the Supreme Court's Martinez decision, Hearn is seeking federal court review of his ineffective assistance of trial counsel claim for the first time.

Unless the Supreme Court intervenes, Mr. Hearn will be executed with no review of his claim that trial counsel were ineffective.  His Petition for Writ of Certiorari is available in Adobe .pdf format.

Earlier coverage of Yokamon Hearn's case begins at the link.  It's also referenced in an article on fetal alcohol syndrome.

The Arkansas Moratorium

"State stymied on executions," is the title of John Lyon's post at the Arkansas News Bureau.

Attorney General Dustin McDaniel voiced frustration with the state Supreme Court last week over what he sees as resistance to the death penalty, but other legal experts say the problems the state has encountered in carrying out executions cannot be laid entirely at the court’s feet.

In an interview with Arkansas News Bureau business columnist Roby Brock, McDaniel said, “If the Supreme Court thinks … that executions should be declared unconstitutional, then they should do that. But instead, since the day I became attorney general they’ve simply erected one procedural hurdle after another to ensure that we can’t execute those who have committed the most heinous crimes in Arkansas.”

Numerous lawsuits and court rulings have prevented the state from executing any prisoners since 2005. Most recently, the state Supreme Court ruled last month that a 2009 law authorizing the director of the state Department of Correction to decide what chemicals are used in lethal injections gave the director too much discretion, in violation of the separation of powers between the executive and legislative branches of state government.

Gov. Mike Beebe has said he does not intend to schedule any executions until the Legislature passes a new law on lethal injections. That is expected to happen during the legislative session that starts in January.

Michael Johnson, a law professor at the University of Arkansas at Little Rock, said states across the country have changed their lethal injection protocols in recent years, which has led to numerous legal challenges.

“I think the problems really have occurred over the last several years because of unavailability of drugs used in the protocols,” Johnson said.

And:

Johnson said the state Supreme Court struck down that law not because it found lethal injection unconstitutional but because it found that the law violated the state constitution’s provision mandating separation of powers.

“That’s pretty specific to the Arkansas Constitution, as opposed to something broader about the death penalty,” he said.

Earlier coverage of Arkansas lethal injection issues begins at the link.  The Arkansas Supreme Court ruling in Hobbs v. Jones is available in Adobe .pdf format.

Related posts are in the lethal injection index.

An Update From Montana

"Montana governor meets family of Canadian on death row," is the AP report by Matt Gouras.  It's via the Missoulian.

Montana Gov. Brian Schweitzer on Friday told the family of a Canadian on death row that he is undecided on the inmate's request for executive clemency, at times expressing sympathy for his plight and at other times noting the desire of the victims' families for retribution.

The governor had a long, frank discussion with relatives of convicted murderer Ronald A. Smith. Schweitzer told them that his options include doing nothing with the clemency request, which seeks life in prison without the possibility of parole instead of the death penalty.

Schweitzer sympathized with the plight of Smith, who is scheduled to be executed in the 1982 killings of two Blackfeet Indian men. The governor said it is not fair for Smith to be executed after an accomplice was paroled, and indicated he believes that Smith may be a different man.

But the governor said he has spoken with the victims' families, Blackfeet tribal members, who have told him they need Smith's death for closure. The governor said he remains uncertain whether Smith's death would improve the situation, and said he is not sure the traditional form of justice for the Blackfeet would include the death penalty.

"In their system of justice, when people did something very bad, they were banished,'' Schweitzer said.

A tribal council member has said that many in the tribe believe that if the governor gives clemency to Smith that means the governor values Native American lives less.

Schweitzer told Smith's family, from Alberta, Canada, that he is aware of that criticism, but argued it does not have merit because he believes he has done more than past governors to include Montana's largest minority group in his administration. Still, the governor is weighing the desire of those on the reservation.

And:

The board is recommending that Schweitzer dismiss the clemency request, writing in their report that "justice is best served" by continuing with the execution. The governor makes the final call.

Smith's sister, Rita Duncan, told the governor much of the same that she and others told the parole board: Smith is a changed man who deserves to live the rest of his life behind bars. Speaking in a barely audible whisper, Duncan at times broke down in tears, as she described the impact Smith has helping the rest of his family through letters and phone calls.

Also at the meeting were Smith's dad Nelson Smith, his daughter Carmen Blackburn and her two children.

The governor told them all options remain on the table. He does not have a timetable for making a decision, but noted the best-case scenario for Smith is life behind bars.

"His sentence, one way or another, is death: slow or long," Schweitzer said.

Schweitzer also expressed anger at Smith, who originally sought the death penalty at trial before changing his mind, for putting the state of Montana in the position of aiding a suicide he once wanted.

The Calgary Sun reports, "Family pleads Montana Governor to spare Ronald Smith's life."  It's by Bill Kaufmann.

Four generations of Canadian death row inmate Ronald Smith’s family pleaded Friday with Montana Gov. Brian Schweitzer to commute the killer’s death sentence.

The five Albertans spent about an hour with Schweitzer in the governor’s Helena office, lobbying him to commute the death sentence the state’s parole board upheld last May.

Smith is the only Canadian on death row in the U.S.

Since May, Schweitzer also met with members of the families of Smith’s victims, Harvey Mad Man and Thomas Running Rabbit, whom he kidnapped and gunned down at the side of a Montana highway on Aug. 4, 1982.

The Democrat governor’s office wouldn’t comment on Friday’s meeting but Smith’s lawyer, Don Vernay, said it’s a worthwhile effort for his client’s family.

“Absolutely — they’re good people who have an incredibly strong relationship with Ron — he’s a foundation for them and the grandkids,” said Vernay.

Making the trip from Alberta to Helena was Smith’s father, Nelson, his sister Rita Duncan, his daughter Carmen Blackburn and grandchildren Myles and Nycole Blackburn.

Vernay said he’s still hopeful Schweitzer, in whose hands Smith’s fate now rests, will commute his sentence to life in prison.

Earlier coverage of the Montana case begins at the link.  Related posts are in the clemency index.

Romney Proposed 'Foolproof' Death Penalty in Mass.

That's the title of an AP report by Steve LeBlanc.

As Massachusetts governor, Republican Mitt Romney set himself a daunting challenge: craft a death penalty law that virtually guaranteed only the guilty could be executed, then push it through an overwhelmingly Democratic state Legislature that was leery of capital punishment.

Making the task even more difficult, the push by Romney — who is now running for president — came in 2005 at a time of growing national skepticism about the death penalty. Just two years earlier, Illinois Gov. George Ryan had cleared his state's death row after the death sentences of several inmates had been overturned.

Romney decided to tackle that skepticism by coming up with what he said would be a "gold standard for the death penalty in the modern scientific age."

In trying to set a new and higher bar, Romney also was chasing two political goals.

The first was to fulfill a promise, made during his 2002 run for governor, to try to reinstate the death penalty in Massachusetts, then one of a dozen states that had banned the punishment. The second was to burnish his conservative resume as he looked ahead to 2008 and his first run for president.

"We believe that the capital punishment bill that we put forward is not only right for Massachusetts, but it's a model for the nation," Romney said at the time, in comments similar to what he said about his overhaul of the state health insurance system. That law became a blueprint for the sweeping federal health care overhaul enacted by President Barack Obama, which has become an issue in the White House race.

Romney's handling of the death penalty issue opened a window into the type of management style he could bring to the White House if elected. He hand-picked a commission and outlined his goals in broad terms. Then he turned the panel's recommendations into a bill that ultimately failed to get through the Legislature. But his decision to fight an uphill battle on an issue that had begun to lose its urgency also showed Romney wasn't afraid of a political fight.

And:

Others saw political motives in Romney's efforts.

"There was no way the Massachusetts Legislature was going to pass a death penalty bill," state Rep. David Linsky, a Democrat who opposed Romney's bill and had helped investigate or prosecute about 25 murder cases as an assistant district attorney, said in an interview. "It was all about setting up his future conservative credentials outside Massachusetts."

Others, including many Republican and moderate Democrats backed the measure, however. But the bill was defeated on a 99-to-53 vote in the House after more than four hours of impassioned debate.

The Associated Press also distributed a sidebar, "Highlights of Romney's death penalty bill in Mass."

Highlights of the death penalty bill Republican presidential candidate Mitt Romney filed as Massachusetts governor in 2005. The bill would have:

— Limited capital punishment to people convicted of terrorism, multiple murders, killing law enforcement officers and murder involving torture.

— Required conclusive scientific evidence, such as DNA, linking the suspect to the crime scene.

— Mandated a scientific review of the physical evidence before an execution was carried out.

— Established a "no doubt" standard which meant that even after a guilty verdict was rendered, the death penalty could not be imposed if any juror harbored the slightest doubt about the defendant's guilt.

— Required two trials, one to determine guilt and the second to decide whether to impose the death penalty.

— Required an automatic review by the Supreme Judicial Court.

— Barred the execution of anyone who was younger than 18 at the time of the crime.

— Required the creation of a list of "capital case qualified" defense attorneys to represent any defendant facing the death penalty.

— Created a commission to review complaints and investigate errors.

Related posts are in the politics and state legislation indexes.

Of the 34 states with capital punishment, Maryland currently has the most restrictive law in terms of prosecuting a death penalty case.  No new death sentences have been issued since the state revised its law in 2009. Maryland prosecutors have sought the death penalty twice since the law changed, but both cases resulted in life sentences.  Earlier coverage of Maryland capital punishment issues begins at the link.

Coverage of the 2009 Maryland General Assembly's consideration of repeal legislation and eventual compromise law with strict standards for capital prosecutions begins with the post, "The Maryland Legislation."

Preliminary Ford Hearing in Texas Case

"Lawyers argue Druery unfit for execution," is the Bryan-College Eagle report written by Maggie Kiely.

With 20 days remaining until his execution date, attorneys representing Marcus Druery, a 32-year-old Texas death row inmate from Bryan, filed a motion arguing their client is incompetent to be executed based on his inability to rationally understand his punishment.

Druery was convicted of capital murder and sentenced to death in 2003 for the killing of 20-year-old Skyyler Browne on Halloween 2002.

And:

Along with the incompetency motion, Druery’s lawyers — Kate Black and Greg Wiercioch with the Texas Defender Service — filed several other documents last week, including a motion to withdraw the execution date and a request for a competency hearing.

The motions are set to be reviewed on July 24 by Judge J.D. Langley of the 85th District Court.

In the 36-page document Black and Wiercioch submitted outlining why Druery is incompetent and therefore unfit for execution under federal law, the attorneys provided a timeline describing the deterioration of his mental health, which they argue started within a year of his arrival on Death Row at the Polunsky Unit in Livingston.

By January 2006, Druery was starting to hear things and in March 2009 he had a “psychotic break” that required him to be transferred to the psychiatric unit, according to the document.

In November 2009, he was sent back to the psychiatric unit against his will where doctors determined he was suffering from “auditory hallucinations” and diagnosed him as schizophrenic.

In reviewing prison staff records, Druery’s attorneys found examples of comments the inmate made that indicated he didn’t understand why he was on Death Row.

"Court Questions Constitutionality of Upcoming Texas Execution," is Peter Malof's post at Texas News Service.

The scheduled Texas execution - just two weeks away, on Aug. 1 - of convicted murderer Marcus Druery is unconstitutional because he is mentally incompetent. That is according to attorneys who have asked a state district court to delay his death. While delay requests are common in capital punishment cases, concern over Druery's sanity by his former lawyers and prison officials prompted Judge J.D. Langley to appoint expert counsel to request a competency hearing.

Texas Defender Service Kate Black filed the motion. She cites the findings of a psychologist who examined Druery in May.

"His delusional ideas so pervade his understanding of his case that he no longer understands that it was him who committed the crime, and that he's the one who has to suffer the punishment."

While the state has acknowledged that Druery suffers from delusions, schizophrenia, "thought broadcasting" and auditory hallucinations, Department of Criminal Justice officials have yet to respond to the question of whether his medical condition meets the legal definition of insanity.

The U.S. Supreme Court ruled in 1986 that executing the insane violates the Eighth Amendment ban on cruel and unusual punishment. The high court later expanded that ruling, saying that some justifications for the death penalty - such as retribution for victims' families - are not valid when criminals cannot comprehend them.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Georgia Pardons Board Denies Clemency for Warren Hill

The announcement was made this morning.  Warren Hill's attorney Brian Kammer has released this statement:

"I am horrified and outraged by the Board’s decision to deny clemency for Warren Hill, a man found by numerous experts, including the State’s experts, as well as the courts to be mentally disabled.  The Board is making the same mistake it made in denying clemency for another mentally retarded inmate, Jerome Bowden, in 1986.  This shameful decision violates Georgia’s and our nation’s moral values and renders meaningless state and federal constitutional protections against wrongful execution of persons with mental retardation."

"Parole board denies clemency to inmate found mentally disabled," is Bill Rankin's report for the Atlanta Journal-Constitution.

The State Board of Pardons and Paroles on Monday denied clemency to a man whose lawyer says is mentally disabled and should not be executed.

Warren Lee Hill is set to be put to death by lethal injection on Wednesday at the state prison in Jackson.

In 1991, a southwest Georgia jury sentenced Hill to die for fatally bludgeoning a fellow prison inmate with a nail-studded, two-by-six wooden board. At the time, Hill was serving a life sentence at a prison in Lee County for killing his 18-year-old girlfriend.

And:

Georgia became the first state in the nation to ban the execution of the mentally disabled, more than a decade before the U.S. Supreme Court ruled the practice unconstitutional nationwide.

But in an ironic twist, and for the first time since Georgia enacted its groundbreaking law in 1988, the state is poised to execute Hill, a man a judge has found to be mentally disabled. Hill's problem is that the judge found him mentally disabled by a preponderance of the evidence — or more likely than not — and Georgia's law requires proof beyond a reasonable doubt. Hill did not clear that standard of proof.

"Clemency denied for Georgia death row inmate Hill," is the AP report by Kate Brumback.  It's via the San Francisco Chronicle.

The Georgia Board of Pardons and Paroles has voted to deny clemency to death row inmate Warren Lee Hill, who is facing execution Wednesday.

The board announced its decision Monday after hearing arguments in the case Friday. Hill was convicted in 1991 and sentenced to death for killing a fellow inmate while serving a life sentence for the slaying of his girlfriend.

His lawyer Brian Kammer has argued that Hill is mentally disabled and therefore shouldn't be executed. Kammer said he's "horrified and outraged" by the board's decision.

And:

Kammer had asked the board to commute Hill's sentence to life in prison without parole or to grant him a 90-day stay of execution to give the U.S. Supreme Court time to consider the case. A petition to have Hill's case heard by the U.S. Supreme Court was denied last month, but Kammer has filed a new request with the high court.

Earlier coverage of Warren Hill's case begins at the link.

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

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