The StandDown Texas Project

The Jermaine Wright Case in Delaware

"Death penalty case still stirring," is the Wilmington News Journal report written by Sean O’Sullivan.

The state’s effort to reinstate the death penalty against a man whose conviction was overturned 11 months ago is headed back to the Delaware Supreme Court.

Superior Court Judge John A. Parkins Jr. ruled Wednesday in a 15-page opinion that police and prosecutors did not provide critical information to attorneys who represented Jermaine Wright 20 years ago, as they were required to do.

Wright was convicted and sentenced to death for the 1991 slaying of liquor store clerk Phillip Seifert.

The ruling by Parkins essentially affirms his decision in January 2012 to overturn Wright’s conviction and death sentence.

Prosecutors appealed that decision, saying that Wright’s attorneys were aware of the evidence – relating to a similar robbery at a different liquor store on the night of the homicide – and the Delaware Supreme Court sent the matter back to Parkins for additional investigation.

And:

It is not clear if the Delaware Supreme Court will now rule on the appeal or ask for additional briefs or argument from attorneys.

Earlier coverage of Jermaine Wright's case begins at the link. 

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

In Washington State

KIRO-FM posts, "Opponents launch new effort to abolish death penalty," by Tim Haeck.

Opponents will try again to pass a bill abolishing the death penalty in Washington state during the next legislative session.

Backers of the death penalty argue it provides closure for victims, but Sen. Debbie Regala (D-Tacoma) says that's not always true, given how long appeals can take.

"The prolonged process means that there is no closure for a long period of time and for many people it reopens the wound over and over."

Regala opposes the death penalty even though her brother-in-law was murdered in Seattle in 1980 and his killer was never caught. She says cost is one big reason why.

"We spent six to ten times as much money pursuing a death penalty as we would if we went for life without the possibility of parole," Regala says.

Earlier coverage from Washington begins at the links.

Related posts are in the abolition and state legislation indexes.

Florida Tries to Execute the 'Prince of God'

That's the title of Andrew Cohen's latest post at the Atlantic.  It's subtitled, "State officials say John Ferguson is faking his mental illness. The law says the state can't execute an incompetent man. Something's gotta give."  Here's the opening:

Florida Governor Rick Scott wanted, finally, to get rid of John Ferguson, but he wanted to appear fair in doing so. The convicted multiple murderer had been on the Sunshine State's death row for decades -- for 34 years, for a generation -- but questions lingered about his mental competency. As far back as 1971, in fact, six years before Ferguson first killed, the state's own psychiatrists had diagnosed him as suffering from "a major mental disorder" that rendered him "psychotic and incompetent." Forty years later, he was hardly better. 

So after Governor Scott set Ferguson's execution date for October 16th, and defense attorneys duly alerted officials to their client's diminished mental state, the governor appointed three psychiatrists to a "commission" to evaluate Ferguson, to determine whether he was sane enough to be lawfully executed by the state. The psychiatrists, who had never before seen or treated Ferguson, were ordered to move quickly -- to examine the prisoner on October 1st and issue their report on October 2nd. Here's how the defense describes what happened next:

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes. I added the compentency category index in April.  Earlier posts dealing with competency to be executed 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 the 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.

More From Rome

You can watch live-streaming video of the lighting of Rome's Colosseum in honor of Connecticut's repeal of capital punishment earlier this year.  Here's part of the announcement from the Community of Sant’Egidio.

Starting 19:00 at the Colosseum of Rome, there will be exceptional personalities, from Shujaa Graham and Fernando Bermudez, innocent people sentenced to death for crimes they did not commit in the United States, to David Atwood, founder of the Texas Coalition against the Death Penalty, Tamara Chikunova, founder of Mothers against the Death Penalty, responsible for the abolition of capital punishment in many countries of Central Asia, justice ministers from several countries in the world and leading figures in the recent struggle for abolition of the death penalty in Connecticut will take part, along with the Community of Sant’Egidio, in a special evening for life.     

Follow the event in live streming on www.santegidio.org

It will be the official inauguration of the International Day of Cities for Life, started ten years ago in Rome with the Community of Sant’Egidio and supported by the World Coalition Against the Death Penalty. Special illumination of the Colosseum, “Testimonial for Life”, this year celebrates the abolition of the death penalty in Connecticut: the fifth American state to abolish capital punishment in the United States in the past five years (2007 New Jersey 2008, New Mexico 2010 New York, 2011,Illinois, 2012 Connecticut).

The event in front of the Colosseum, which will inaugurate the World Day of Cities against the Death Penalty, will be hosted by Max Giusti.

Thanks to Abe Bonowitz for circulating.

Catholic Culture posts, "Italian lay movement continues push for abolition of death penalty," written by Catholic World News.

The Community of Sant’Egidio, one of the most prominent new ecclesial movements, has continued its efforts to abolish the death penalty worldwide by hosting a conference of justice ministers from 20 nations.

“We have started a method that is not just lobbying,” spokesman Mario Marazziti told Vatican Radio. “It is putting together people from civil societies, NGOs, statesmen and women, and people who can make decisions to make a synergy and to cross-impollinate the good things that each one can give to the other one. So we listen with great respect to the difficulties of the ministers of justice that come from retentionist countries, and we can accompany them to overcome the difficulties they face in their nations, to create this tremendous difference that is made by abolishing the death penalty.”

Andrea Riccardi founded the Community of Sant’Egidio as a high school student in 1968; the community has become known for its service to the needy and work on behalf of peace. Approved by the Pontifical Council for the Laity as an international association of the faithful in 1986, the community over the next two decades grew to 50,000 members in 72 nations.

CWN also reports, "Sant’Egidio’s Riccardi named Italian cabinet minister."

Andrea Riccardi, the founder of one of the leading new ecclesial movements, has been named Italy’s minister for international cooperation and integration policies.

Earlier coverage from Rome begins at the link.

Will Maryland Be the Next State to Repeal?

"NAACP to step up Maryland death penalty fight," is by Michael Dresser for the Baltimore Sun.  Here's the beginning of the article.

The NAACP is vowing to mount in Annapolis its largest-ever effort to abolish the death penalty in a state, saying Maryland's historic role in the civil rights movement makes it an appropriate place for the push.

In an interview, NAACP President Ben Jealous said Maryland is the civil rights organization's top priority in its broader campaign to eliminate capital punishment from the American justice system. He said the group will spend more than it ever has in a state as it rallies citizens to pressure lawmakers for repeal.

"We'll make sure people hear from their constituents in a way they've never heard from them before," Jealous said.

The NAACP has historically opposed the death penalty for a variety of reasons, including racial disparities in how it is applied. Jealous said Maryland is especially important to the NAACP because of the state's civil rights history — including the careers of native sons Thurgood Marshall and Frederick Douglass.

"There's a special debt of honor to get this done in Maryland for the NAACP," Jealous said.

His announcement comes as Gov. Martin O'Malley, a death penalty opponent, is weighing whether to put the full weight of his office behind a renewed effort to shut down Maryland's Death Row. A previous O'Malley effort ended in 2009 with a compromise bill that narrowed the circumstances under which a killer can be sentenced to death but left capital punishment on the books.

Earlier coverage from Maryland begins at the link.

The Insanity Defense

 Today's Los Angeles Times publishes the editorial, "Defending the insanity defense."

The Supreme Court refused this week to review the murder conviction of an Idaho man who was prevented by state law from offering an insanity defense. The court's abdication of its responsibility encourages other states to dismantle a central principle of Anglo-American law: that a defendant should not be held criminally responsible when mental illness makes it impossible for him to tell right from wrong.

Contrary to what viewers of television courtroom dramas may believe, a plea of not guilty by reason of insanity is seldom asserted and usually unsuccessful. But there are cases — probably more than the judicial system recognizes — in which it is clear from medical evidence that a defendant is not responsible for his actions.

The principle that such people may not be held criminally responsible was articulated in the famous M'Naghten Rule announced by the British House of Lords in an 1843 murder case: A defendant is insane if at the time of the crime he either didn't know that what he was doing was wrong or was unable to understand the nature and quality of his act. Half the states, including California, employ a form of M'Naghten. In all, 46 states employ some version of the insanity defense, though some also provide for the (logically self-contradictory) verdict of guilty but mentally ill.

"Crazy Making: The Supreme Court is wrong to let Idaho have no insanity defense," is Emily Bazelon's commentary at Slate.

Earlier this month, Jared Loughner was sentenced to life in prison at a sober proceeding in which survivors of his terrible shooting spree in Arizona, and their families, recognized the role his schizophrenia played in his crimes. They talked about their understandable hurt and anger, and they also recognized that Loughner didn’t get the mental health care he needed. (Mark Kelly, the husband of former Rep. Gabby Giffords, whom Loughner shot in the head, usefully highlighted the expiration a decade ago of the federal law that banned the sale of the rapid-fire ammunition clips Loughner used.)

It took months of medication and treatment for Loughner to understand the charges against him. That comes as no surprise, given the disturbed-looking photos of him after the crime. And the country got a similar view of violence and untreated mental illness in James Holmes, the 24-year-old who shot up a movie theater in Aurora, Colo., in July. Both Loughner and Holmes spiraled out of control while enrolled at a university yet fell through the holes of the health care net that should have caught them. This is a story we’ve been hearing since at least the 2007 mass killing by a student at Virginia Tech.

The mental illness of criminal defendants, however, is not of current interest to the Supreme Court. This week, the justices turned down a case challenging Idaho’s complete lack of an insanity defense. In Idaho, “mental condition” is not a defense to any charge of criminal conduct. In the case the Supreme Court won’t hear, John Joseph Delling, a paranoid schizophrenic, shot and killed two of his friends and wounded a third while seized by the delusion that he was a “type of Jesus” and that his friends were “taking his energy” in a way that would kill him. A psychologist testified that he truly—and delusionally and tragically—believed he had to stop his friends to save his own life.

"Supreme Court declines to review insanity defense appeal," is the November 26 Reuters post, via the Chicago Tribune.  It's by Jonathan Stempel.

A divided U.S. Supreme Court on Monday refused to hear an appeal over whether criminal defendants have a constitutional right to assert an insanity defense, leaving in place a paranoid schizophrenic's guilty plea over two murders.

With three of its nine justices dissenting, the court without explanation declined to take up the case of John Joseph Delling, who had been sentenced to life in prison in Idaho over the 2007 shooting deaths of David Boss, a childhood friend, and Brad Morse, whom he had met playing online video games.

And:

Three justices - Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - would have considered Delling's appeal.

"The law has long recognized that criminal punishment is not appropriate for those who, by reason of insanity, cannot tell right from wrong," Breyer wrote for the dissenting justices.

He said Idaho's standard "permits the conviction of an individual who knew what he was doing, but had no capacity to understand that it was wrong."

Idaho, Kansas, Montana, Nevada and Utah have since 1979 passed laws abolishing the insanity defense, though Nevada's supreme court later revived the defense in that state.

"Justices decline to consider whether Constitution requires insanity defense," is by Robert Barnes for the Washington Post.

All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981.

Many states and the federal government reacted by shifting the burden of proving insanity to the defense. But four states — Idaho, Kansas, Utah and Montana — do not allow the defense. Without it, Delling pleaded guilty to second-degree murder.

Delling’s lawyer, Stanford law professor Jeffrey L. Fisher, told the court that the “moral integrity of the criminal law has depended, in part, on the insanity defense.”

Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said.

Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.

While the Supreme Court has approved states that limited the use of the insanity plea, it has never taken up the question of whether there is a constitutional right to the defense.

Related posts are in the mental illness and the not guilty by reason of insanity category indexes.

Court of Inquiry in Michael Morton Case Delayed

That's the title of Brandi Grissom's Texas Tribune post on the latest developments in the Michael Morton exoneration.

The court of inquiry that will determine whether the former prosecutor who oversaw the wrongful conviction of Michael Morton could face criminal charges will be delayed until Feb. 4, a prosecutor with the Texas attorney general’s office said Monday.

News of the delay in the inquiry involving now-Williamson County State District Judge Ken Anderson — previously scheduled for Dec. 10 — came during a hearing in the case of Mark Norwood. Norwood is charged with murdering Michael Morton’s wife, Christine, at their North Austin home in 1986, a crime for which Morton spent nearly 25 years in prison. Lawyers for Norwood are seeking to delay his trial, which is scheduled for Jan. 7 in San Angelo.

Anderson is accused of deliberately hiding evidence during Morton’s 1987 trial that indicated Morton was innocent and that another person may have killed his wife. Anderson has strenuously denied allegations of wrongdoing in the Morton case.

At Monday’s hearing, Russell Hunt Jr., Norwood’s lawyer, told Williamson County State District Judge Burt Carnes that he needed additional time to hire a DNA expert to review the state expert’s work.

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

Meeting of the International Congress of Ministers of Justice in Rome

Connecticut's Danbury News-Times reports, "Professor speaks at anti-death penalty congress in Rome."  It's written by John Pirro.

As one of the hundreds of Connecticut residents who worked for years to get rid of the death penalty, George Kain, of Ridgefield, said he was proud to attend the seventh International Congress of Ministers of Justice in Rome this week, an organization dedicated to abolishing capital punishment worldwide.

Then, late Monday, the Western Connecticut State University professor learned he had been chosen to address the group about the successful battle that made Connecticut the 17th state in the country to end the practice.

"We knew that we'd be asked to speak, but this did come as a bit of a surprise on such short notice," he said.

Early Tuesday morning, Kain, who teaches criminal justice at Western and serves on the Police Commission in Ridgefield, was putting the finishing touches on the speech he would deliver a few hours later.

According to an excerpt of the speech he emailed to The News-Times, Kain planned to tell his audience, "I am honored to be with you this morning as a representative of the state of Connecticut and proud to celebrate that we are the fifth state in the United States in the last five years to have abolished the barbaric practice of capital punishment."

Kain went on to quote former U.S. Supreme Court Justice Thurgood Marshall, who 40 years ago spoke of "a terribly flawed system which has put innocent men behind bars for the better part of their short lives" and has seen "surviving family members of those murdered dragged through a system that promises them closure but actually only adds to the pain and misery of having lost their loved one."

Kain, a member of the board of directors of the Connecticut Network to Abolish the Death Penalty, was accompanied to Rome by another board member, Fernando Bermudez, a Danbury resident and criminal justice student at Western who spent 18 years in prison in New York for a murder he didn't commit.

Both men will have front-row seats for the lighting of Rome's Colosseum later this week celebrating Connecticut's abolition of capital punishment.

"Former death row inmate drawn to faith by Catholic activism," is the National Catholic Reporter article written by John L. Allen Jr. Here's part of the introduction before the interview:

During the October Synod of Bishops on New Evangelization, Bishop Gerald Kicanas of Tucson argued that the church’s social teaching is a powerful missionary tool, with the capacity to draw people to the faith.

If you need proof of the point, look no further than Curtis McCarty, who spent nineteen years on death row in Oklahoma before eventually being exonerated, and who now seems to be making a journey of faith toward the Catholic church because of the anti-death penalty activism of the Rome-based Community of Sant’Egidio.

Sant’Egidio hosted an international meeting of ministers of justice in Rome to discuss global abolition of the death penalty on Nov. 27, where the soft-spoken McCarty was on hand to share his experience.

Sant’Egidio is a Catholic movement founded in Rome in 1968 and dedicated to conflict resolution, ecumenism and inter-faith dialogue, and promotion of the other elements of Catholic social teaching. Of his encounter with the group, McCarty says bluntly: “They saved me.”

Related posts are in the international category index.

83rd Texas Legislature Convenes January 8

The 140-day legislative session will convene on January 8th and adjourn on May 27th.  Pre-filing of bills has begun.

"Bill Would Restrict Informant Testimony in Death Cases," is Brandi Grissom's Texas Tribune post on one of the pre-filed bills.  Here's an extended excerpt from this must-read:

Anthony Graves was wrongly convicted and sent to death row in 1994 based largely on the testimony of an alleged accomplice in the fiery murders of six people. The accomplice, while on the execution gurney, admitted he was the lone killer. Ten years later, in 2010, Graves was exonerated. 

Like Graves, Muneer Deeb, Michael Toney and Robert Springsteen were sentenced to death after trials that involved the testimony of their cellmates or alleged accomplices. Their convictions were all overturned. 

State Rep. Harold Dutton, D-Houston, has filed a bill, HB 189, that aims to prevent wrongful death sentences in cases that involve unreliable testimony from alleged accomplices or jailhouse snitches who receive a reward for implicating someone else. 

“What we have found is that there have been people who, for their own self-interest, have basically fabricated testimony about other folks, and as a consequence that person has been found guilty,” Dutton said. 

Criminal justice reform advocates said the measure is a critical next step in Texas’ efforts to prevent wrongful convictions. Critics of the measure, though, argue that current rules already protect defendants against unreliable testimony and that eliminating such accomplice or informant testimony could tie prosecutors’ hands.

Under HB 189, prosecutors in death penalty cases would be unable to use testimony from informants or from alleged accomplices of the defendant if the evidence were obtained in exchange for immunity, leniency or any other special treatment. The measure would also make testimony from cellmates of the defendant inadmissible unless the conversation was recorded. 

“Odd as it may sound, Texas is at the vanguard of snitch testimony,” said Alexandra Natapoff, a law professor at Loyola Law School Los Angeles, and author of the Snitching Blog. Texas was one of first states to require the corroboration of jailhouse informant testimony and drug snitches, she said. And Dutton’s bill would make Texas among the first states to prohibit prosecutors from offering criminals benefits for their testimony. 

A 2004 Northwestern University study of wrongful convictions found that informants played a major role in more than 45 percent of overturned death sentences nationwide.

More on HB 189, including the text, is at the link.  The Texas Legislature Online website is a model of open, accessible information.  It allows individuals to track bills, committee meetings, and create alerts.  The Legislative Reference Library, located on the 2nd Floor of the Texas Capitol, also has a helpful website.

Related posts are in the informant/snitch testimony, state legislation and Texas Legislature category indexes

FDA & Imported Lethal Injection Drugs

"FDA appeals lethal-injection drug ruling" is by Kevin O'Hanlon for the November 8 edition of the Lincoln Journal Star.

The U.S. Food and Drug Administration says a federal judge overstepped his bounds in a ruling that could force Nebraska to surrender one of its lethal-injection drugs.

In a brief filed this week with the U.S. Court of Appeals for the Washington, D.C., Circuit, the FDA appeals a March ruling by U.S. District Judge Richard Leon, who said the agency must immediately notify state correctional departments in possession of any foreign-manufactured sodium thiopental "that the use of such drug is prohibited by law and ... that thiopental must be returned immediately to the FDA.”

Nebraska and several other states in which sodium thoipental is part of the execution protocol were forced to buy it overseas when the last U.S. manufacturer quit making it in 2010 because of death-penalty opposition from overseas customers.

Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who say the foreign-made sodium thiopental is an unapproved drug.

FDA lawyers point to a 1985 U.S. Supreme Court ruling in Heckler v. Chaney that said the FDA's decision to not take enforcement action in a lethal-injection drug case was not subject to judicial review. That case involved a challenge by death-row inmates in Texas and Oklahoma who argued that U.S.-manufactured lethal injection drugs in the possession of prison officials had not been certified by the FDA as "safe and effective" for human executions, and thus should be barred from being distributed via interstate commerce.

The FDA argues that Leon "expressly rejected FDA’s explanations that it does not want to expend resources on an area it considers distant from its public health mission, and that it has historically deferred to law enforcement."

"As the Supreme Court recognized in Heckler, overriding an agency’s discretion to decide whether to engage in enforcement proceedings interferes with the agency’s determinations about whether particular enforcement actions are counterproductive or unduly tax agency resources in relation to other responsibilities that the agency may regard as more pressing," the brief says.

And:

Lawyers for the inmates have until Jan. 11 to reply with their brief.

The FDA letter to Nebraska officials is available in Adobe .pdf format.

The FDA Law Blog of Hyman, Phelps & McNamara posts, "FDA Presses “Heckler Defense” in Appeal of Unapproved Thiopental Sodium Death Row Inmate Case.  It's written by Kurt R. Karst.

FDA’s opening brief in the Agency’s appeal of a March 27, 2012 Memorandum Opinion and accompanying Order issued by Judge Richard J. Leon of the U.S. District Court for the District of Columbia (as modified by a June 22, 2012 Order) in Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) (now Cook v. FDA) concerning FDA’s exercise of enforcement discretion with regard to the importation of unapproved sodium thiopental for use by state Departments of Corrections to carry out death sentences by lethal injection is all about the U.S. Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821 (1985).  In Heckler, the Court rejected a challenge to FDA’s determination that the Agency would not take enforcement action in the lethal injection context, and held that FDA’s determinations about the circumstances in which the Agency would take enforcement action were not subject to judicial review, because “agency refusals to institute investigative or enforcement proceedings are committed to agency discretion.”  In Beaty, the outcome was different.  

As we previously reported (here and here), Judge Leon’s decision to grant summary judgment to Plaintiffs stems from a February 2011 lawsuit (amended in July 2011) brought against FDA by death row inmates alleging violations of the Administrative Procedure Act (“APA”) and the FDC Act.  Specifically, the Plaintiffs alleged that FDA violated the APA (5 U.S.C. § 706(2)(A)) by improperly allowing shipments of a misbranded and unapproved new drug to enter the U.S. contrary to the FDC Act, and violated the APA (5 U.S.C. § 706(2)(A)) by departing from longstanding Agency policies and undermining the purpose of the FDC Act. 

At issue in the case is FDC Act § 801(a), which concerns imports.

Earlier coverage of Judge Leon's ruling on the FDA and the importation of lethal injection drugs begins at the link.

Federal Judge Rejects Obese Ohio Inmate's Lethal Injection Challenge

"Federal judge rejects obese Ohio inmate's claim execution would cause severe pain," is Andrew Welsh-Huggins's AP report.  It's via the Zanesville Times Recorder.

A condemned killer trying to delay his execution because of his extreme weight hasn’t raised enough new issues to warrant the legal challenge, a federal judge ruled Monday.

Death row inmate Ronald Post, who weighs more than 400 pounds, is asking the courts to stop his January execution on the grounds his weight could cause him to suffer severe pain during the procedure.

Post is prohibited from challenging his execution by injection because he raised similar claims in his first set of federal appeals in 1997, Judge Lesley Wells said Monday in Cleveland.

In general, death row inmates are allowed only one federal appeal when alleging the same set of facts.

Post “has not demonstrated in his new petition that his medical condition has changed so significantly, or that Ohio’s new lethal injection procedures have changed so radically, since he filed his first petition in 1997 that his original core complaints are transformed into something new,” Wells wrote.

However, the judge sent the question to a federal appeals court in Cincinnati for a final determination according to federal law governing this type of appeal. The state is opposing Post’s requests to delay his execution.

Northern Ohio's Morning Journal reports, "U.S. District Judge Lesley Wells in Cleveland rejects inmate Ronald Ray Post's stay of execution because of obesity."  It's written by Kaylee Remington.

A federal judge has dismissed Ronald Ray Post’s motion to stop his execution scheduled for Jan. 16..

Post was convicted by a three-judge panel for the 1983 murder and robbery of 53-year-old hotel clerk Helen Vantz at the Slumber Inn in Elyria and was sentenced to death..

Post and his attorneys have argued that because of Post’s obesity, his veins are not suitable for Ohio’s lethal injection procedure.

Earlier coverage of this Ohio lethal injection challenge begins at the link.

Continued Commentary From California

"It's Worth Trying Death Penalty Repeal Again," is Joe Mathews' post on the Prop Zero blog at KNBC-TV.

If you want to make a change in California by ballot initiative, you usually have to lose first. Howard Jarvis suffered through a pair of failures to pass property tax relief before he won with Prop 13. Redistricting reform failed five times at the ballot before the voters endorsed it.

The repeal of the death penalty just lost.

But there are signs that, if backers of repeal try again, they'll win.

Those signs? The death penalty repeal initiative -- Prop 34 -- came very close to winning, with the current tally just under 48 percent. Prop 34 outperformed late polls, suggesting it had gained.

There are also signs that the population in California, and nationally, is moving against the death penalty. Much of the democratic world sees the death penalty as beyond the pale (the U.S. is an outlier among advanced countries in maintaining the death penalty).

And:

So it's a good bet that Prop 34 was just the first of what could be multiple attempts to repeal the death penalty. Here's betting that backers of this cause, by losing, will eventually win.

Earlier coverage from California begins at the link; also available, additional coverage of Prop. 34, the SAFE California ballot initiative.

Nebraska OpEd Roundup & an Event This Week

In advance of a forum on capital punishment to be held at the University of Nebraska at Lincoln, this Wednesday evening, the Lincoln Journal Star publishes two OpEds.

"The case against the death penalty," is by University of Colorado sociologist Michael L. Radelet.

The ways that Americans debate the death penalty have changed dramatically in the past 30 years.

Retribution and the need to help families of homicide victims have replaced deterrence as the top pro-death penalty argument, while concerns about erroneous convictions, disparities, cost and whether the penalty is reserved for the worst of the worst have become the most common points raised by abolitionists.

Both sides agree, however, that the burden of proof is on those who advocate its use. In other words, we should not take a human life unless it is an absolute necessity and unless the goals of executions cannot be achieved by alternative nonlethal means.

Perhaps the most crucial change in Nebraska law since the 1970s is that the alternative to execution is no longer 12-15 years in prison before parole eligibility. Today, in all the 33 states that still authorize death sentences, anyone eligible for the death penalty who is not sentenced to death will automatically be sentenced to life imprisonment without parole. Once convicted, we know the offender never will get out of prison.

Another change is that all agree that the costs of the death penalty have skyrocketed. Numerous studies from across the United States have uniformly concluded that the costs of the death penalty are astronomical, and several times more than the costs of life imprisonment without parole.

"Death penalty a question of just punishment," is by Nebraska Solicitor General J. Kirk Brown.

First and foremost, we are a country of laws. As a matter of law, neither our federal nor state constitutions prohibit death as a potential criminal penalty for the worst murderers.

Thus, the moral/public policy question is: Can people engage in behavior so reprehensible they deserve to die for their crime or crimes?

Adolph Hitler directed the deaths of more than 17 million innocent men, women and children. Did Hitler deserve to die? The 9-11 terrorists took 2,977 innocent lives. Timothy McVeigh blew up 19 children under the age of six and 149 adults. In Nebraska, Charles Starkweather murdered 11 people; Jose Sandoval, Jorge Galindo and Erick Vella slaughtered five people in a bank in Norfolk; John Lotter murdered three; Robert Williams, Carey Dean Moore and Marco Torres each murdered two; John Joubert and Arthur Gales each murdered two children; Roy Ellis, Raymond Mata and Jeffrey Hessler each murdered one child; Michael Ryan took three days to torture his victim to death; Willie Otey repeatedly raped and tortured his victim before taking her life.

When do we say enough is enough? When do we say, “This murderer deserves to die”? It is not a question of forgiveness or vengeance. It is a question of just punishment.

As for this week's event, the AP reports, "UNL's E.N. Thompson lecture to focus on death penalty."  It's via the Omaha World Herald.

The death penalty will be the topic of this month's E.N. Thompson Forum on World Issues lecture at the University of Nebraska-Lincoln.

Nebraska Solicitor General J. Kirk Brown and University of Colorado-Boulder sociologist Michael Radelet will debate in the event, titled "The Death Penalty: Justice, Retribution and Dollars," at 7 p.m. on Nov. 28.

Brown and Radelet will explore questions such as whether the death penalty is humane, fairly applied, reduces violent crime or is cost-effective. They'll also examine the effects on the condemned person, the legal and judicial systems, victims' loved ones and the taxpaying society at large.

Earlier coverage from Nebraska begins at the link.

Changes in New Hampshire

The Concord Monitor reports, "With Hassan in office, death penalty’s days could be numbered."  It's written by Tricia L. Nadolny.

For the first time in decades, opponents of the death penalty will have a governor in office who agrees with them.

But legislators who will be crafting a bill to repeal the state’s capital punishment law say it’s unlikely that it would affect the state’s sole person on death row, Michael Addison.

But it’s not because the Legislature couldn’t try to spare Addison, who is facing execution for the 2006 murder of a Manchester police officer Michael Briggs, if it wished.

While changes to the criminal code aren’t typically retroactive, a bill could include language making the repeal “going backwards and going forwards,” according to Buzz Scherr, a professor at the University of New Hampshire School of Law.

“But they’d have to do that explicitly,” Scherr said.

Gov. John Lynch has been a strong supporter of the death penalty during his four terms in office, vowing to veto a repeal if one passed and signing into law an expansion of the death penalty statute that allows those responsible for murders during home invasions to be eligible for death.

Gov.-elect Maggie Hassan, on the other hand, said multiple times during her campaign that she opposes capital punishment “as a matter of personal conscience and faith” and wouldn’t have signed the expansion as Lynch did.

She has stipulated, though, that she wouldn’t commute Addison’s sentence.

“It was the law on our books in New Hampshire when he was convicted of his crime, and I do trust and believe in our criminal justice system and our courts system,” Hassan said during a televised debate before the Democratic primary. “But as a matter of personal faith and conscience, I oppose the death penalty. I do, however, support life in prison without parole for certain heinous crimes.”

For lawmakers seeking a repeal, her stance opens the door for a new dialogue and clears the way for abolition down the road.

Renny Cushing, a Hampton Democrat who is working on repeal legislation that could be introduced in the session starting in January, said he doesn’t foresee trying to make the new bill retroactive. Instead, he expects the bill will follow the lead set in states such as New Mexico and Connecticut, where recent repeals have only affected new cases.

“In some ways, it’s a cleaner bill,” said Cushing, who will soon rejoin the House after loosing his seat in 2010. “It’s talking about the future rather than what transpired in the past.”

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

An Update From Maryland

"As O’Malley eyes repeal, Md. death row remains at ‘impasse’," is the title of John Wagner's extensive report for the Washington Post.  Here's an excerpt from the beginning of the article.

Coming off some high-profile wins at the ballot box this month, Maryland Gov. Martin O’Malley is considering another run at repealing the death penalty when lawmakers reconvene in January, aides say. It’s an issue that could add to his progressive legacy.

But even if the law remains on the books, advocates on both sides agree that O’Malley (D) is all but certain to finish his two terms in office without having presided over a single execution of one of the state’s five condemned prisoners.

That’s largely because O’Malley’s administration has yet to implement regulations required for executions to resume, nearly six years after Maryland’s highest court halted use of capital punishment on a technicality. And there’s little reason to believe the politically ambitious governor will do so in his remaining two years, as drug shortages and other factors have complicated the mechanics of lethal injection in other states.

“It’s legislating by inaction,” said Sen. Joseph M. Getty (R-Carroll), a member of the Senate Judicial Proceedings Committee and an O’Malley critic. “I’m among the members of the General Assembly who would like to see the law followed.”

O’Malley declined to be interviewed for this story, and aides said a decision about whether he will sponsor a death penalty repeal bill will be made in coming weeks. Administration officials responsible for drafting the rules needed for executions to resume offered no timetable for when they might be issued.

“We’re still working on the regulations, still exploring best practices around the country,” said Rick Binetti, a spokesman for the Department of Public Safety and Correctional Services. “It’s a serious issue, and the department is being extra careful, and that’s obviously taking some time.”

Practices around the country have changed since 2005, when Maryland executed its last prisoner, under the watch of Gov. Robert L. Ehrlich Jr. (R) — and those changes could make a return to capital punishment in the Free State even more unlikely.

And:

A repeal bill last reached the Senate floor in 2009, when Senate President Thomas V. Mike Miller Jr. (D-Calvert) allowed debate as a courtesy to O’Malley. Rather than pass the bill, the Senate amended it to tighten evidentiary standards in capital cases but to keep the death penalty on the books.

The article is also available in a condensed AP version, "O’Malley considering bill to repeal death penalty," via the Cumberland Times-News.

WTOP-FM reports, "Death penalty repeal is reintroduced in Maryland."

A bill to repeal the death penalty in Maryland will be introduced again during the 2013 lawmaking session.

Past repeal bills presented in the state have failed to reach a floor vote in 10 of the last 12 legislative sessions.

Sen. Lisa A. Gladden (D-Dist. 41) reintroduced the bill for its thirteenth time. She tells the Gazette the new bill would use money saved from capital murder cases to support families of murder victims.

Officials against the repeal say if the death penalty is on the books, it should be used. Right now the death penalty only applies to cases with DNA evidence, video evidence or video confessions.

Earlier coverage of Maryland repeal legislation begins at the link; also available, case information from Maryland.

Oregon Legislation to Be Introduced

"Oregon legislator prepares death-penalty repeal bill, as anniversary of execution moratorium approaches," is the Oregonian report written by Helen Jung.

When Gov. John Kitzhaber declared a year ago that he would block any executions as long as he's governor, he also challenged legislators to help turn the moratorium into law.

The system is inequitable and immoral, said Kitzhaber, who made the announcement when he halted a pending execution for two-time killer Gary Haugen. "I am calling on the Legislature to bring potential reforms before the 2013 legislative session and encourage all Oregonians to engage in the long overdue debate that this important issue deserves," he said.

It's an invitation that state Rep. Mitch Greenlick, a longtime opponent of capital punishment, is happy to accept.

Greenlick plans to introduce a bill that would propose a constitutional amendment to repeal the death penalty, replacing it instead with a sentence of life in prison without the possibility of parole.

If legislators pass the bill, the proposed amendment would then go to a vote by Oregonians in the 2014 general election. Voters must approve a constitutional amendment by a simple majority.

Earlier coverage from Oregon begins at the link.

California Judge Refuses DA Request to Set Execution Date

"San Mateo judge refuses to set execution date for condemned killer," is Howard Mintz' report in the Oakland Tribune.

A condemned San Mateo County killer will have to wait his turn for execution with the rest of California's 725 death row inmates.

A judge on Monday refused San Mateo County District Attorney Steve Wagstaffe's bid to accelerate the execution timetable for Robert Green Fairbank, on death row for the 1985 murder of a San Francisco woman. Fairbank has exhausted all of his legal appeals, but executions remain on hold in California as a result of state and federal court orders in challenges to the state's lethal injection method.

Without any elaboration, Superior Court Judge Barbara Mallach found she did not have the authority to interfere with those court orders.

As a result, Mallach rejected Wagstaffe's argument that Fairbanks could immediately be given an execution date with instructions to put him to death with a single lethal drug, bypassing the other courts. A Los Angeles judge this fall rejected the same argument in a case brought by Los Angeles District Attorney Steve Cooley, who was seeking execution dates for two death row inmates.

Wagstaffe said the decision did not come as a surprise, but he considered the legal maneuver an important step in getting executions back on track in California.

And:

Fairbank is one of at least 13 inmates who would be eligible for execution dates if the lethal injection challenges are resolved, which is unlikely to happen until next year or later.

California has not executed anyone in nearly seven years.

"Judge rejects San Mateo County DA's request to set execution date for condemned inmate," is the AP report, via the Republic.

Los Angeles County District Attorney Steve Cooley had sought a similar court order for the immediate execution of two other Death Row inmates. A judge rejected that request as well.

The San Mateo Daily Journal reports, "Judge refuses to set execution date."  It's written by Michelle Durand.

A San Mateo County Superior Court judge Monday refused to set an execution date for a condemned inmate whose appeals have expired, saying she did not have authority to override other courts wrangling with questions over lethal injection.

Judge Barbara Mallach did not elaborate on her decision but the ruling rendered moot any further discussion yesterday on whether the California Department of Corrections and Rehabilitation is able to use a single-drug method rather than the controversial three-drug protocol that has essentially put executions on hold.

Earlier coverage from California begins at the link.  Related posts are in the lethal injection index and include:

• California & the FDA Litigation
• Los Angeles DA Joins Move to Push California Executions
• California to Explore Single Drug Lethal Injection Option
• California’s Lethal Injections

A Q&A with Sr. Helen Prejean

"Activist discusses work against death penalty," is the conversation with Houston Chronicle reporter Harvey Rice.  Here's the beginning of this must-read:

Sister Helen Prejean, 73, anti-death penalty advocate and author of "Dead Man Walking," which was made into a movie in 1995 of the same name, was in Houston for the 10th anniversary of GRACE, the Gulf Region Advocacy Center, which represents low-income death-penalty defendants at no cost. She spoke with Houston Chronicle reporter Harvey Rice about her passion for her cause.

Q. Was it your experience with Patrick Sonnier, whose 1984 execution inspired your book "Dead Man Walking," that led you to be outspoken against the death penalty, or was it something else?

A. When he was killed in the electric chair he looked at my face. I had never seen an execution before with my own eyes. I went outside and vomited. Support for death penalty was 87 percent at the time. I realized the people are never going to see this, but I've witnessed it. I've witnessed the guards who had to do the killing. One who said I have to quit. I met the victims' families. They are given this illusory promise (that the death penalty will bring them closure.) I began speaking out immediately after that execution. I wrote a book, "Dead Man Walking." It was to get the word out to the people, to get them to face the reality of the death sentence, to gradually take them into the horror. That's what I tried to do.

More about Sr. Helen Prejean is at the link; you can also visit her website, Prejean.org.

At the United Nations

"US sides with Iran and N. Korea in record UN vote over the death penalty," is the AFP post, via the UK's Telegraph.

A record 110 countries on Monday backed a resolution voted every two years at a UN General Assembly committee calling for the abolition of the death penalty.

The vote tears apart traditional alliances at the United Nations. The United States, Japan, China, Iran, India, North Korea, Syria and Zimbabwe were among 39 countries to oppose the non-binding resolution in the assembly's rights committee. Thirty-six countries abstained.

Israel voted against its strong US-ally to join European Union nations, Australia, Brazil and South Africa among major countries backing the motion

Norway, which played a leading role campaigning for the resolution, said on its Twitter account that the increased support was a "great result".

At the last vote in 2010, 107 countries backed the resolution.

France's new Socialist government has launched a campaign with other abolitionist states to get the full General Assembly to pass a resolution in December calling for a death penalty moratorium. Though such a resolution would be non-binding, diplomats say it would increase moral pressure.

A world congress against the death penalty is to be held in Madrid in June.

According to the United Nations, about 150 countries have either abolished capital punishment or have instituted a moratorium.

Earlier coverage from the United Nations begins at the link.  Related posts are in the international category index.

Liliana Segura on Death Penalty Activism

"Marching Against the Death Penalty in Texas," is Liliana Segura's latest post at the Nation.

On a Tuesday last March, the state of Mississippi executed Larry Matthew Puckett, a 35-year-old man convicted of sexually assaulting and killing his boss’s wife, 28-year-old Rhonda Hatten Griffis, in 1995. Matt, as his family called him, was an Eagle Scout at the time; he had just graduated from high school and was days away from leaving for basic training with the Navy before he was arrested. From the beginning he insisted on his innocence, claiming that his former employer had killed his wife in a rage upon discovering her and Matt together in her mobile home. Although his story contained inconsistencies, there were red flags. Griffis was beaten to death with a club, yet her blood was nowhere to be found on Puckett’s clothes, just on her husband’s. Nor was Puckett’s semen found on her body.

The Mississippi Innocence Project reviewed his case in 2008, primarily due to concerns over the role of one of two now-famously discredited medical examiners whose testimony had sent innocent men to death row. But neither man was central to his case. Nor was there DNA to test. No further inquiry went forward. The courts upheld his conviction.

But Puckett’s family continued to believe him, particularly his mother, Mary. When his lawyers pushed to fight for his sentence to be commuted to life without parole, she recalls, “We always protested and said no, that’s not what we want for him. We want him to come home.”

Related posts are in the activism category index.

The Oregon Moratorium

Oregon Public Radio KLCC-FM reports, "One Year After Death Penalty Moratorium, Little Has Happened."  It's by Chris Lehman.

One year ago this week, Oregon Governor John Kitzhaber stunned the state and made international headlines when he issued a moratorium on the death penalty. He said he hoped his action would spur state lawmakers to a conversation about the death penalty. But so far, there's little momentum for the legislature to act on the issue.

Kitzhaber called Oregon's capital punishment system "compromised and inequitable." He said the ban on executions would last through the end of his time in office.

And he said "I call on the legislative branch to bring forth potential reforms to the 2013 legislature."

A full repeal of the death penalty would require approval by voters. Lawmakers could send such a measure to the ballot, or make changes to how the death penalty is applied.

But so far, Senate Judiciary Committee Chair Floyd Prozanski says there's been relatively little discussion on the issue.

Earlier coverage from Oregon begins at the link.

Column Roundup

"George Allen case raises question: How do things go wrong?" is Bill McClellan's latest St. Louis Post-Dispatch column.

After spending almost 30 years in prison for the rape and murder of Mary Bell, George Allen was set free Wednesday.

Technically, he has not been declared innocent. Instead, Cole County Judge Daniel Green voided Allen’s convictions for murder, rape, sodomy and first-degree burglary because St. Louis police failed to disclose important evidence to the prosecution that was favorable to Allen. The prosecution would have had to share that evidence with the defense.

St. Louis Circuit Attorney Jennifer Joyce had the opportunity to refile the charges, but she opted not to, citing the fact that two key witnesses had died. One of them was Herb Riley, the homicide sergeant who took Allen’s confession.

But technicalities aside, Allen and his supporters feel he has been exonerated. I would not argue with them. And if we accept their argument that he was wrongly convicted, we’re left with a question — how did it happen?

"Pennsylvania should lose the death penalty," is Anne McGraw Reeves' column for the Harrisburg Patriot-News.

When it comes to Pennsylvania’s cruel and bogus capital punishment law, we need to use it or lose it.

I say we lose it. Soon.

The recent last-minute stay of execution for convicted murderer Hubert Michael clearly illustrates the ridiculousness of the system we use to punish the state’s worst criminals.

Pennsylvania has not executed a single person in 13 years. More than 200 people sit on death row, dying from illness or old age rather than their sentence.

The death penalty drives up costs for taxpayers in legal fees, housing and execution preparation. Morally, it’s reprehensible and discriminatory. And crime statistics easily debunk arguments that the death penalty deters murder, rape, kidnapping and other heinous acts.

But the worst aspect of our death penalty centers not on guilt, but on innocence. The current system heaps further suffering on the family and friends of the victim. The law that is supposed to bring closure and comfort torments them instead, conjuring up painful memories and emotions every time a death warrant is signed.

Earlier coverge of the Hubert Michael case begins at the link.  Related posts are in the column category index.

Georgia Supreme Court Overturns Death Sentence

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

"Death sentences overturned for man who killed family," is Bill Rankin's post at the Atlanta Journal-Constitution.

The Georgia Supreme Court on Monday threw out death sentences imposed by a DeKalb County jury against a man who killed his wife and their 2-year-old twin sons.

The court, in a unanimous opinion, upheld the murder convictions against Clayton Jerrod Ellington and sent the case back for a new sentencing trial. When Ellington’s death sentence was handed down in 2008, it was the first capital sentence imposed by a DeKalb jury in almost two decades.

In reversing the death sentences, Justice David Nahmias wrote that the trial judge incorrectly prohibited Ellington’s lawyers from asking prospective jurors during jury selection if they would only consider a death sentence — and not life in prison — for the murder of two young children.

The jury selection process is needed to find a jury that will be fair and impartial, Nahmias wrote.

"Death Penalty Tossed Out in DeKalb Triple Murder Case," is the AP report, via WMAZ-TV.

The Georgia Supreme Court has unanimously tossed out the death sentence of a man who was convicted of killing his wife and twin 2-year-old sons in Lithonia in 2006.

The court on Monday upheld Clayton Jerrod Ellington's murder conviction, and a jury will once again have the option to sentence him to death.

Ellington's attorneys had argued the trial court unfairly prohibited them from asking prospective jurors whether they would consider a life sentence rather than the death penalty.

 

North Carolina Roundup

"Death penalty an option that's lived too long," is the title of Steve Ford's editorial column from the Sunday edition of the Raleigh News & Observer.  He's the editorial page editor.

These are the murderers, 155 of them, declared by juries to have committed deeds so foul that no punishment short of losing their own lives will suffice. So they languish in their miserably monotonous routines until finally comes the hour of their doom.

Unless, that is, an appeal brings a sentence converted to life in prison without parole, perhaps even a new trial in which the state again would be forced to prove the defendant’s guilt or let him go.

Or unless, as happens to be the case in North Carolina, the death penalty itself falls into disuse – to the point where, as The N&O’s Anne Blythe reported the other day, no executions have occurred for the past six years and where, in 2012, no one has been or will be sent to death row at all.

To me, this is progress. One way to gauge that progress involves a case that has stuck in my mind ever since I wrote about it in 1995.

Phillip Lee Ingle was 31 that September when he was given a lethal injection in the weirdly shaped little room that is the Central Prison death chamber.

He had been found guilty and duly sentenced by juries in Rutherford and Gaston counties in the fatal beatings of two elderly couples in separate incidents. One problem: The man appears to have been sick in the head.

And:

First-degree murder these days is likely to bring a sentence that didn’t used to be available – life in prison without parole. It would make good sense if Gov. Beverly Perdue, before she leaves office in a few weeks, were to commute the sentences of those 155 prisoners now on death row. They, too, would be locked up for the rest of their lives.

Such a move would acknowledge shifts in public opinion and a greater sensitivity to the justice system’s imperfections. It would spare public resources while affirming the principle that violent criminals must pay heavily. And it would bring honor to Perdue for having stood against a punishment that will be a blight on the state’s justice system so long as it remains an option.

The Southern Pines Pilot publishes the OpEd, "Is the Death Penalty Conservative?"  It's by Robert M. Levy, the Moore County Republican Party chair.

My reverence for life is as unshakable as any conservative who "believes with perfect faith" that life begins at conception.

But what about death?

How can I fight for the sanctity of life while I condone the premature death of even the most evil among us?

While I may be part of a small minority in our Republican Party, I, too, "believe with perfect faith" that there is a blanket of life which ought to surround all human beings from conception to a natural conclusion. This means that just as I oppose the killing of the unborn, I must also oppose the killing of those already born when society takes revenge in the form of a death penalty.

Yet, as a conservative and constitutional originalist, I do not base my opposition to death upon religion alone. It would be just as wrong to establish my religious beliefs as the "law of the land" as it would be to forbid the free exercise of those whose religion differs from mine.

No, my opposition to death is based on more practical conservative principles.

I believe in law and order. The most heinous crimes deserve the toughest penalties. And the death penalty is not nearly as punishing as a life condemned to a cramped concrete cell 20 hours per day.

Earlier coverage from North Carolina begins at the link.

The Concord Monitor on New Hampshire's Death Penalty

"In death penalty case, shocking statements from judge," is the Concord Monitor editorial from the Sunday edition.

Last week, the five justices of the New Hampshire Supreme Court heard the appeal of the first death sentence levied in the state’s modern era. The court gave lawyers for Michael Addison, the man convicted of shooting and killing Manchester police officer Michael Briggs in 2006, a full day to make their case. The legal team raised serious questions that are expected to take the court at least a year to answer. Pursuing the death penalty will consume months of the court’s time and millions of taxpayer dollars. That alone should give citizens reason to question whether the alleged benefits of capital punishment – there are none in our view – are worth the cost to society and the additional pain for all involved. But testimony at Wednesday’s proceeding raised a surprising, serious and immediate concern that speaks to the ability of the state’s high court to fairly decide whether to take a person’s life in the name of the state. We’re referring to statements by Justice Robert Lynn in a discussion about the fairness of admitting information, including the testimony of family members, of what an outstanding person Briggs was.

The line is not always clear between victim-witness statements that fairly inform a judge and jurors of the uniqueness of the person killed and statements designed to appeal to the emotion of jurors and potentially prejudice the outcome. The intent of the law is to treat everyone equally and not, as justices warned in a U.S. Supreme Court case that broadened the nature of admissible statements, “to imply that one victim is less valued than another. . . . for instance, that the killer of a hard-working, devoted parent deserves the death penalty, but the murderer of a reprobate does not.”

Lynn’s comments were made during a broad discussion of statements that bear on the character of the victim, but they nonetheless suggest a view that is disquieting and perhaps disqualifying.

And:

We hope that Lynn was playing devil’s advocate to further the discussion. Because if he indeed so fundamentally misunderstands how the law applies in this instance, one is forced to question whether he should sit on the case.

Earlier coverage of the New Hampshire Supreme Court session begins at the link.

 

Connecticut Racial/Geographic Bias Trial Resumes

"Conn. death penalty trial to resume," is the AP report, via the Seattle Post-Intelligencer.

A trial is set to continue for Connecticut death row inmates who claim their prosecutions were fraught with racial and geographical biases.

Five of the 11 men on the state's death row are plaintiffs in the appeal trial being held at Northern Correctional Institution in Somers. The proceeding is set to resume Monday. It's been held on and off for the past two months, with a video feed for the public at Rockville Superior Court.

The inmates claim their death penalties were decided in arbitrary and discriminatory ways based on their race and where they were prosecuted. Prosecutors deny the claim.

Earlier coverage from Connecticut begins at the link.

California Roundup

"Prosecutors seek to jump start California death penalty," is the AP report, via the Mohave Daily News.

Earlier this year, the U.S. Supreme Court rejected Robert Fairbank’s appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek.

With that rejection, Fairbank joined at least 13 other death row inmates who have completed the decades-long capital punishment appeals process and are eligible for execution.

Nonetheless, none of the 14 death row inmates who have “exhausted” their appeals will receive a lethal injection any time soon — even though 53 percent of the California electorate reinforced its support of the death penalty with the rejection of Proposition 34 on Nov. 6.

Lawsuits in federal and state courts have halted executions since January 2006 and it will take months, maybe years, to resolve the litigation. Judges have ordered a halt to executions and lawyers with the state’s attorney general’s office have promised not to pursue any executions until the cases are resolved.

Still, a growing number of prosecutors, law enforcement officials and capital punishment proponents are pushing for the quick resumption of execution, citing the defeat of Proposition 34 as a mandate from the voters. They’re calling for an end-run around the legal hang ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution.

"Reform the death penalty," is the Pasadena Daily-Star editorial.

DESPITE its serious flaws, Californians made it clear on Nov. 6 that they want to keep the death penalty.

A majority of Californians voted down Proposition 34, which would have replaced the sentence with life in prison without the possibility of parole, leaving the expensive and dysfunctional process of state-sponsored executions in place.

We supported the initiative as a cost-effective and humane alternative to our messy and inefficient death penalty, but recognize the will of the voters. Now, the state must do a better job of it.

It's up to supporters - primarily those in the law enforcement community - to push for remedies that make the death penalty more than just a punishment in name only.

There are two clear ways to do that: streamline the cumbersome appeals process and move to a single-drug protocol for lethal injections.

California's death penalty is broken in its current form and does not serve the justice it promises.

Earlier coverage from California begins at the link.

California Commentary

"California's Death Penalty Vote: It's Time to Reconsider 'Justice'," is Gabriel Daniel Solis' essay at Huffington Post.  He's with the Brennan Center for Justice at New York University School of Law.

On Election Day, 52 percent of California voters cast ballots to keep the death penalty.

Such a small margin suggests that voters may be inching closer to abolishing capital punishment in the state. Advocates ran a well-coordinated, anti-death penalty campaign that offered compelling moral, legal and fiscal arguments that did not take hold of the electorate. So why did the majority vote to keep the death penalty?

Some commentators have noted that voters' decision to keep the death penalty was based more on their conception of "justice" than these other arguments. They suggest that the vote indicates a belief that "justice" for a murder victim can be only achieved when the murderer's life is taken away -- an "eye for an eye."

And:

A complete concept of justice should more fully consider and understand the suffering of all those affected by crime. Justice should not be narrow, but expansive. It should consider all the contributing factors and consequences of crime and violence. It should go beyond simple reactionary instincts to punish, but instead focus on shared humanity and shared suffering. Justice should never be satisfied with incomplete narratives about crime that lead to harsh punishment, but should instead always strive toward fairness, equality and inclusion.

Those seeking to reform the criminal justice system should work to educate the public about the stories of all those who suffer at the hands of the criminal justice system.

Earlier coverage and commentary on the California ballot initiative begins at the link.

From Connecticut

Today's Hartford Courant reports, "Execution After Death Penalty Repeal "Unprecedented," State Supreme Court Told."  It's by Alaine Griffin.  Here's an extended excerpt:

Preserving capital punishment for crimes committed before the legislature's abolishment of the death penalty is at odds with "evolving" standards of decency in Connecticut, an attorney for convicted killer Eduardo Santiago said in a legal filing this week to the state Supreme Court which has agreed to take up the issue of whether the repeal of the death penalty can apply only to future crimes.

Executing someone after the repeal would be "unprecedented," Assistant Public Defender Mark Rademacher said in a supplemental brief filed on behalf of Santiago, who faces the death penalty for the killing of Joseph Niwinski in West Hartford in December 2000.

No one faces execution in New Jersey and Illinois after recent death penalty repeals in those states and New Mexico has not carried out any executions since a 2009 repeal even though a former governor of that state declined to commute the death sentences of two remaining condemned killers, Rademacher wrote.

Governors in New Jersey and Illinois commuted the existing death sentences after the repeals in those states. In New Mexico, the two remaining death sentences continue to be challenged and no execution dates have been set. According to Connecticut law, the Board of Pardons and Paroles -- not the governor -- has the authority to commute a death sentence to life in prison.

Connecticut lawmakers abolished the death penalty in April but kept in place the death sentences imposed on current death-row inmates.

"A search of the historical record has revealed no jurisdiction in the history of the United States that executed an offender after renouncing capital punishment," Rademacher wrote. "An execution carried out in the face of this judgment would plainly be cruel and unusual punishment and would violate the statutory prohibition against arbitrary death sentences and the constitutional prohibitions against arbitrary criminal laws that are unsupported by legitimate penological objectives."

Executing someone in a state that has renounced capital punishment is "inconsistent with contemporary standards of decency," Rademacher argues. "When state lawmakers had the opportunity to vote for an amendment that would 'send a message' that carrying out existing death sentences took priority over abolishing capital punishment, a majority of them chose instead to send the message that abolition was their paramount goal," he wrote.

The state Supreme Court agreed in September to take up the new law's prospective issue when it granted a request by Santiago, whose death sentence was overturned in June, for written briefs and arguments that raise questions about the constitutionality of capital punishment for those who committed capital crimes before the law was passed last April.

The state has 60 days to respond. A hearing could be held sometime early next year.

Earlier coverage from Connecticut begins at the link.

Kentucky May Resume Executions in Spring

That's the title of Brett Barrouquere's AP report, via the Evansville Courier & Press.

Kentucky has moved one step closer to resuming executions — perhaps in the spring — by sending new rules for lethal injections to lawmakers. Once approved, the state will ask the judge who halted executions more than a year ago to lift his order.

The revised regulations specify that doses of the drug used in the one-drug execution — 3 grams of sodium thiopental or 5 grams of pentobarbital — be repeated if the inmate has not died within 10 minutes. In a two-drug execution, the warden may authorize continued injections of 60 milligrams of hydromorphone until the inmate dies if the initial injection is not deadly.

Also under the new rules, there will be no specific time limit on an inmate's last words. The warden at the Kentucky State Penitentiary in Eddyville has the option of shutting off an overhead microphone if the statement is deemed "intentionally offensive" to witnesses or excessive in length.

The Justice Cabinet made the changes after a public hearing in September over the proposed switch from using three drugs to carry out an execution to a one or two-drug method. State officials filed a "statement of consideration" with the Legislative Research Commission on Thursday.

The switch became necessary after Franklin Circuit Judge Phillip Shepherd struck down Kentucky's three-drug method more than a year ago and ordered a one-drug process put into place before any more executions would be allowed.

In making the move, Kentucky joins at least seven other states that use one drug. It also would allow the state to avoid having to defend the three-drug method at a trial.

And:

The Justice Cabinet made no changes to the bulk of the regulations, including how much of the process is visible to witnesses, when an attorney may last see a client before an execution and how and when a determination about the inmate's competency is determined.

The new regulations are at least the sixth different method of carrying out injections among the 33 states that execute inmates. States now use a variety of procedures, including a three-drug protocol with sodium thiopental, a three-drug method with pentobarbital and single drug executions with sodium thiopental or pentobarbital. Missouri recently switched to the sedative propofal. Kentucky's new plan makes a half-dozen ways executions may be carried out.

The regulations are similar to Ohio's and 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.

The article notes that Kentucky has conducted three post-Furman executions since 1977.

Earlier coverage of Kentucky lethal injection issues begins at the link; also available, additional coverage from Kentucky.

Related posts are in the lethal injection index.

Texas Execution

Texas conducted its 15th execution of 2012, last night in Huntsville; the second in two consecutive nights.  It was the 492nd post-Furman Texas execution since 1982, and the 253rd execution under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"In last words, condemned man maintains innocence," is Anita Hassan's report for the Houston Chronicle.

While his mother wailed and screamed in the background, Preston Hughes was executed Thursday night for fatally stabbing a teenage girl and her toddler cousin on a dirt road in southwest Houston more than two decades ago.

Hughes was convicted of the 1988 murders of La Shandra Charles, 15, and her 3-year-old cousin, Marcell Taylor. None of the victims' friends or relatives attended the execution.

Hughes was put to death about 31/2 hours after the U.S. Supreme Court rejected appeals filed by his attorney to postpone the punishment. The execution also was slowed by an appeal filed by Hughes to the Texas Criminal Court of Appeals asking that the court reconsider its earlier denial to retest DNA in the case.

And:

Thursday's execution also followed a failed attempt this week by Hughes' attorney to persuade the Texas Board of Paroles and Pardons to commute the inmate's death sentence to life in prison.

In his petition to the board, Hughes' attorney, Pat McCann, argued that police lied when they told jurors Charles identified her attacker as "Preston" in her dying breath.

McCann supplemented his argument with a sworn statement from a deputy Tarrant County medical examiner, who said Charles would have lost consciousness within 60 seconds of the attack. The policeman who claimed to have heard the statement arrived 13 minutes after Charles died, McCann said.

McCann also argued that police checked items confiscated from his client's apartment into their evidence room about three hours before Hughes agreed to the search.

Earlier coverage of Preston Hughes' case begins at the link.

To date, there have been 40 executions in American death penalty states this year; a total of 1,317 post-Furman executions since 1977.

It appears certain that this was the last Texas execution of 2012.  According to TDCJ, five execution dates have already been set for 2013. 

State Case Roundup

Kansas' Topeka Capital-Journal reports, "Schmidt appeals decision to overturn death penalty."

Kansas Attorney General Derek Schmidt on Thursday announced he is appealing a decision by the Kansas Supreme Court to overturn a death penalty conviction.

The court in August ordered a new trial for Scott Cheever, who was convicted in the 2005 murder of Greenwood County Sheriff Matt Samuels.

Cheever received the death sentence in October 2007. The state’s high court said Cheever’s 5th Amendment right against self-incrimination was violated by the testimony of a state psychiatrist, reversing the capital murder conviction, as well as four other convictions of attempted capital murder on four other law officers involved in Cheever’s arrest.

Schmidt’s appeal to uphold both the convictions and death sentence is to the U.S. Supreme Court.

From Colorado, "Sources: Aurora theater shooting suspect injured self by ramming head into cell wall," is Jessica Fender's Denver Post report.

Defense attorneys for suspected theater shooter James Holmes said their client was sent to the hospital Tuesday and needed to postpone a court hearing, but did not provide additional details about his condition.

However, sources said Holmes injured himself by ramming his head into a wall at the Arapahoe County jail.

Over objections from prosecutors, Arapahoe County District Court Judge William Sylvester moved a hearing scheduled for Thursday to Dec. 10. That is when lawyers will discuss how information about the package Holmes mailed to his psychiatrist was released to media, as well as other matters.

Citing concerns that divulging Holmes' "medical or psychiatric information" would waive right to keep other personal details out of the courtroom, public defender Tamara Brady declined to state his ailment or whether he was still hospitalized.

Earlier coverage of the Kansas and Colorado cases begins at the links.

More From New Hampshire

Today's Nashua Telegraph reports, "Death penalty opponents hopeful new crop of lawmakers will support abolishing law."  It's written by Joseph G. Cote.

If anyone was likely to be in favor of capital punishment, it would be Renny Cushing.

Cushing’s father, Robert Cushing Sr., was murdered in 1988. And last year, Cushing’s brother-in-law, Stephen McRedmond, was killed in Nashville, Tenn.

Despite these tragedies, Cushing, a Hampton Democrat who won back a state representative seat in last week’s election, is and always has been in favor of abolishing the death penalty in New Hampshire, which he believes is an inevitability.

“Everyone is moving away from the death penalty. It’s clear New Hampshire isn’t in love with the death penalty. We haven’t executed anyone since 1939,” he said. “I don’t think we want to have (laws) that mirror China and Russia.”

Even as convicted cop killer Michael Addison awaits the Supreme Court’s ruling in his death penalty case, those in favor of abolishing executions say there may be a window to do so with the election of Democratic Gov. Maggie Hassan.

And:

Democrats gained ground in the Statehouse after the Nov. 6 election, but it’s Hassan moving into the corner office that puts death penalty opponents closer to their goal. The two previous Democratic governors, John Lynch and now-Sen. Jeanne Shaheen, vetoed bills that would have repealed the law.

A bill to abolish to death penalty passed the House in 2009 by a vote of 193-174, but never made it into law.

Earlier coverage from New Hampshire begins at the link.

Additional Coverage of the Hank Skinner Case

"Texas AG: New tests don't clear death row inmate," is the AP report by Nomaan Merchant, via the Lubbock Avalanche-Journal.

New DNA testing in the case of a Texas Panhandle man on death row for a New Year’s Eve triple-slaying doesn’t support an alternate theory of the crime, the state attorney general’s office said Wednesday.

Hank Skinner once came within an hour of execution for the 1993 killings of girlfriend Twila Busby and her two grown sons in Pampa, about 50 miles northeast of Amarillo. Now 50, Skinner’s execution has been stayed by the Texas Court of Criminal Appeals. Both his attorney and prosecutors agreed in June to new DNA testing of evidence.

The attorney general’s office filed a court advisory Wednesday that says new testing “does not support Skinner’s claim that an alternative suspect is the real killer.”

Skinner has argued he wasn’t the killer because he was passed out on a couch from a mix of vodka and codeine. The AG’s advisory says traces of Skinner’s DNA were located in blood in the bedroom where one of Busby’s sons, Randy Busby, was found stabbed to death. Prosecutors said his DNA also was matched to blood stains throughout the house.

Skinner attorney Rob Owen objected to Wednesday’s advisory, calling its findings premature. In a statement, Owen said it was “troubling” that the AG’s office submitted a report while testing was still ongoing. The AG’s office says both sides are discussing whether to conduct more tests.

The Houston Chronicle reports, "DNA testing proceeds, but guilt questions in Skinner case linger."  It's by Allan Turner.

DNA testing of evidence collected at the scene of a 1993 Texas Panhandle triple murder "further confirms" that convicted killer Henry Skinner was guilty of the crime, Texas Attorney General Greg Abbott has told the Pampa court that tried the case.

Skinner, 50, was sentenced to death for the bludgeoning murder of his lover, Twila Busby, and the stabbing deaths of her two adult sons, Randy Busby and Edwin Caler.

Consistently protesting his innocence, Skinner has fought for more than a decade to obtain testing of potential evidence not analyzed for DNA. In June, Abbott's office and Skinner's attorney agreed that 40 items would be tested at the Texas Department of Public Safety's Lubbock laboratory.

Skinner, whose case has become an international cause celibre among death penalty opponents, claimed that he had consumed excessive alcohol and codeine and was unconscious at the time of the New Year's Eve killings.

Skinner had called for DNA testing of a bloody knife found on the front porch of the residence he shared with the victims. Abbott advised the Pampa court that the knife bore blood traces from Skinner, Caler and a third individual who was not identified.

And:

The initial round of testing indicates at least one person other than Skinner or the victims may have been present in the house the night the murders occurred.

"New DNA Testing Confirms Skinner's Guilt, AGs Office Says," is Jordan Smith's Austin Chronicle post.

DNA testing in the case of death row inmate Hank Skinner"confirm" that he is responsible for the deaths of his longtime girlfriend, Twila Busby, and her two grown sons, Elwin Caler and Randy Busby, who were murdered in the home they shared in Pampa on New Year's Eve 1993, lawyers for the state assert in papers filed in Gray County court on Tuesday.

According to the "advisory" filed in court regarding the results of post-conviction DNA testing done this fall, Skinner's DNA was found on 10 items of evidence among 40 submitted for testing by the Department of Public Safety's Lubbock Crime Lab, including on multiple items of evidence taken from the bedroom shared by Twila Busby's sons, where they were both murdered. Skinner's DNA was found in blood on a dresser, on the door frame, on a comforter, on a tennis shoe, and on a cassette tape holder all collected from the room. Skinner's DNA was also found on door knobs – both inside and outside the house – and on the back door of the house. The test results show that Skinner was all over the house the night that the family was murdered and, combined with testing done prior to Skinner's 1995 trial, proves he is responsible for the murders, Assistant Attorney General Edward Marshall wrote for the court.

And:

In a statement released Wednesday, Owen criticized the state for jumping to conclusions about the DNA results obtained thus far. Owen noted that testing is still ongoing – including on two items where a mixture of DNA, including that of an unknown person has been found. While no DNA was found on one of the knives collected from the house, a mixture of DNA, including Skinner and Caler, was found on a knife collected from the front porch of the house, along with a DNA profile from an unknown person. Similarly, a mixture of DNA, including an unknown profile, was found on a blood sample of carpet collected from the sons' bedroom. "We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner's guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review," Owen said. Additional testing is needed to amplify the unknown DNA profile so that it can be loaded into the national law enforcement database to search for a match, Owen said. The profile has been run through Texas' DNA database, but didn't generate a hit. Details about the discovery of the unknown profile were not included in the AG's office court advisory.

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

The New Hampshire Supreme Court Oral Arguments

"N.H. court hears 1st death penalty case in 50 years," is the AP report filed by Lynne Tuohy.  It's via Sea Coast Online.

The New Hampshire Supreme Court — after a day of marathon arguments in the first death penalty case before the court in 50 years — now must decide if the state’s only death row inmate becomes the first convicted killer executed in New Hampshire since 1939.

Michael Addison was sentenced to death for gunning down Manchester Police Officer Michael Briggs in 2006, as Briggs was attempting to arrest him on armed robbery charges.

Addison’s lawyers have raised numerous issues on appeal, including the trial judge’s decision not to move the trial out of Manchester, where the courthouse is located roughly 100 yards from police headquarters.

Attorney David Rothstein argued Wednesday that holding the trial in Manchester injected passion and prejudice into the death verdict — fueled by prosecutors’ arguments to jurors that Briggs died protecting the community from Addison, an outsider.

“The watershed event in this case was not moving the trial out of that courthouse,” Rothstein argued.

But Assistant Attorney General Elizabeth Woodcock argued that the killing of a police officer — though rare in New Hampshire — is not tantamount to an act of terrorism and mass murder.

"Addison decision not expected for at least a year," by Dale Vincent in the New Hampshire Union Leader.

New Hampshire Supreme Court Justices had many and pointed questions Wednesday about the issues raised in the appeal of Michael Addison's first-degree murder conviction and death penalty sentence.

Family members of both slain Manchester Police Officer Michael Briggs and Addison sat on opposite sides of the courtroom. Many Manchester police officers sat with the Briggs family, including Capt. Nick Willard, who headed the investigation into the 2006 shooting. Also present was Officer Daniel Doherty, who was shot earlier this year and seriously wounded. His accused shooter, Myles Webster, is scheduled for trial in December.

Outside the Supreme Court building, protesters carried banners opposing the death penalty. Among them was John Breckinridge, Briggs' partner on the night he was shot. Now retired, Breckinridge opposes the death penalty for religious reasons, said Arnie Alpert, a death penalty opponent.

And:

The Addison appeal cites 22 issues and the Supreme Court grouped them in four sections in the morning and afternoon sessions.

Among the issues: the court's refusal of a change of venue; wording of instructions given to the jury before deliberations; aggravating factors presented during sentencing; evidence of past crimes the state was allowed to present; and the refusal of then-Attorney General and current U.S. Sen. Kelly Ayotte to accept a plea bargain to avoid the death penalty. An assistant attorney general countered that the plea offer was rejected as hollow.

David Rothstein, the deputy appellate public defender, also challenged the refusal to allow a letter that the defense claims supports the idea that Ayotte was thinking about her political career when she made decisions such as what charge to bring and whether to accept a plea bargain. Ayotte personally prosecuted the case, which ended with a conviction in December 2008, then resigned seven months later, three months into a new four-year term as attorney general, to run for the U.S. Senate.

Rothstein returned again and again to the jury instructions. He said they were a "substantial deviation" from standard instructions, arguing the state said the jury could convict even if there was a possibility of innocence.

The Concord Monitor reports, "Addison’s lawyers dispute death sentence before state Supreme Court."  It's by Tricia L. Nadolny.

Lawyers for Michael Addison disputed his death sentence before the state Supreme Court yesterday by attacking from all directions, taking issue with how he was tried, how he was sentenced and the state’s capital punishment statute itself.

As the justices questioned from the bench, the testimony turned several times to the same issue at the core of Addison’s 2008 trial: whether he acted purposefully or in a moment of panic when he fatally shot Manchester police officer Michael Briggs.

Yesterday the state said jurors made the right call when deciding Addison knew what he was doing when he fired at Briggs on Oct. 16, 2006.

The jury’s decision to impose the death penalty, which came after a three-part trial that stretched nine weeks, makes Addison the first person sentenced to die under New Hampshire’s modern capital punishment statute. The case was automatically appealed to the Supreme Court, which will now weigh – likely over the next six months to a year, according to state officials – whether the trial was fair.

Addison’s lawyers have asked the court not just to vacate his death sentence but to give him a new trial, saying that while they admit Addison shot Briggs, they believe the trial was fundamentally flawed.

Earlier coverage of the unique New Hampshire Supreme Court session begins at the link.

Utah Cost Coverage

"Utah’s death penalty costs $1.6M more per inmate," is the title of Brooke Adams' report in the Salt Lake Tribune.

Rep. Steve Handy, R-Layton, asked for the analysis, the first study to examine what the capital punishment option costs the state and local governments. Handy has not proposed any legislation and said Wednesday he is "under no illusion that people in Utah want to change the present law." But Handy said the comparative costs of life without parole and the death penalty — which a legislative fiscal analyst pegged "unofficially" at an added $1.6 million per inmate from trial to execution — should be understood.

"Which direction citizens of Utah choose to go remains to be seen," Handy told the committee.

It is a topic of discussion in other states as well. New Jersey, New Mexico, Illinois and Connecticut all did away with the option in recent years. A year ago, Oregon Gov. John Kitzhaber put a moratorium on executions and ordered a review of that state’s capital punishment law. On Nov. 6, voters in California, where more than 700 inmates sit on death row, rejected a proposition that would have repealed the state’s death penalty; proponents argued for doing away with the option based on its costs.

Lawmakers may get some insight into Utahns’ views of capital punishment from a survey being conducted by students at Utah Valley University under the direction of Sandy McGunigall-Smith, an associate professor of legal studies. The survey will be sent to 6,000 people randomly selected in Ogden, West Valley City, Kamas, Saratoga Springs, Alpine and Taylorsville.

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

Texas Execution

Texas conducted its 14th execution of 2012, last night in Huntsville.  It was the 491st post-Furman Texas execution since 1982, and the 252nd execution under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Texas executes Hernandez for 2001 slaying of woman abducted from San Antonio bus stop," is the AP report, via the Washington Post.

A registered sex offender was put to death Wednesday for the rape, robbery and slaying of a woman abducted from a San Antonio bus stop 11 years ago.

Ramon Torres Hernandez was one of three people convicted in the killing of Rosa Maria Rosado, 37, who was pulled into a car Hernandez was driving after she refused to let go of her purse during a drive-by robbery.

And:

He took several breaths as the lethal dose of pentobarbital took effect, then began snoring quietly. Within a minute, all movement stopped.

His time of death was announced as 6:38 p.m. CST, 26 minutes after the drug began flowing into his arms.

Texas is scheduled to execute Preston Hughes tonight in Huntsville.  Jordan Smith writes, "State on Track To Execute Its 15th in 2012," for the Austin Chronicle.

Ohio also conducted an execution this week. "Ohio executes condemned killer who stabbed woman, slit her throat and cut off her hands," is the AP report on the execution of Brett Hartman, also via the Washington Post.

To date, there have been 39 executions in American death penalty states this year; a total of 1,316 post-Furman executions since 1977.

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), Wednesday and Thursday.

According to TDCJ, five execution dates have already been set for 2013. 

Michael Blair Seeks Compensation for Wrongful Death Penalty Conviction

"Inmate who admitted rape seeks compensation," is the AP report by Nomaan Merchant.  It's via the Austin American-Statesman.

When Michael Blair was sent to death row for the infamous murder of a 7-year-old girl, he insisted he never killed anyone. More than a decade later, genetic testing showed he was telling the truth.

But during those long years behind bars, Blair did something else that ensured he would never leave prison: He confessed to raping two other children — a crime for which he’s serving multiple life sentences.

Blair hasn’t forgotten the murder case, and now he’s made an unlikely demand, asking the state for nearly $1 million as compensation for being wrongfully convicted. His request has gone all the way to the Texas Supreme Court and is forcing a re-examination of laws designed to offer exonerated inmates a new start.

And:

Though he has almost no chance of leaving prison, his attorney, Roy Greenwood, said Blair could still use the money, particularly for medical fees charged by the prison system.

“He spent 10 years in prison for a crime he didn’t commit,” Greenwood said. “Why he pled guilty to these cases, I have no clue.”

Like many of the nearly 30 states that compensate inmates, Texas denies compensation to anyone who is serving time for multiple crimes at once and has one conviction overturned. It also denies annual payments beyond the initial lump sum and other benefits to exonerated inmates who then commit another crime.

But Greenwood argued last month before the state Supreme Court that the law doesn’t specifically exclude someone like Blair, who was imprisoned on a wrongful conviction, then confessed to other crimes and had the first conviction thrown out.

The Texas Tribune reported, "Exoneree, Still in Prison, Demands Compensation," on October 17.  It's written by Maurice Chammah.

A Texas man who was wrongfully convicted of murder and spent more than a decade on death row says he is entitled to compensation under the Texas Wrongful Imprisonment Act. But the state comptroller’s office, which oversees the payment of compensation, says that because he is not a free man — he is serving four life sentences for sexually assaulting four children — he does not qualify.

On Wednesday at the Supreme Court of Texas, lawyers for Michael Blair, who spent 14 years on death row, and attorneys with the comptroller's office argued over whether Blair is entitled to more than $1 million dollars. Blair was declared innocent of capital murder in 2008 and removed from death row to a general population prison. He is currently serving four life sentences on sexual assault charges, the molestation of four children to which he confessed only after going to prison for the false capital murder conviction.

And:

Less than a year after Blair’s exoneration, the Texas Legislature passed the Tim Cole Act (HB 1736), officially the Texas Wrongful Imprisonment Act, which increased compensation for exonerees to $80,000 per year and added lifetime annuity payments and educational benefits. Since 1992, Texas has paid more than $42 million to compensate 74 innocent men and women who collectively spent more than 700 years behind bars. Blair would be entitled to more than $1 million.

Since the bill was passed, several exonerees have undertaken lengthy legal battles with the Comptroller’s Office, which oversees the payment of compensation. Last year, three exonerated men fought a decision that rendered them ineligible for full compensation because they had been on parole at the time of their wrongful imprisonment. The judges who reversed that decision noted in their ruling that the men would not have broken parole if they had not been wrongfully convicted.

But Blair’s case is different. In 2003, while in prison for murder, he wrote letters of apology to four children he had molested. Collin County officials investigated his claims and charged him with four counts of child molestation. He pleaded guilty and received four life sentences. The comptroller denied his application for compensation because Blair was “not a free man." 

Blair said that the rulings in favor of defendants who were on parole should apply to him as well, since his crimes would not have been discovered had he not been wrongfully imprisoned. His attorney, Roy Greenwood, said the investigations that led to the child molestation convictions would not have been investigated if he had been in the free world, because it is unclear whether Blair would have written apology letters. “Had he not been on death row,” Greenwood told the Justices, “none of this would have happened.”

Earlier coverage of Michael Blair's case begins at the link.

5th Circuit Affirms Mississippi Lethal Injection Procedure

The ruling in Thorson v. Epps is available in Adobe .pdf format.

"Inmate loses challenge to Miss. execution method," is the AP report by Jack Elliott Jr., via WJTV-TV.

A federal appeals panel has rejected a death row inmate's challenge to Mississippi's method of execution by lethal injection.

Roger Thorson had appealed to the 5th U.S. Circuit Court of Appeals after a Mississippi federal judge dismissed his lawsuit against Corrections Commissioner Christopher Epps.

On Wednesday, a 5th Circuit three-judge panel rejected Thorson's claim.

The panel says much of Thorson's complaints about the protocol were speculation.

The panel says the state has shown that its method of execution and the procedure for administration of the lethal injections alleviate cruelty and reduce harm in capital punishment.

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

 

Partial Results Released in Hank Skinner DNA Testing

Rob Owen, Hank Skinner's attorney, has released the following statement:

“We find it troubling that the Attorney General’s Office has seen fit to release partial results of the DNA testing and submit its ‘advisory’ to the court while the DNA testing is still in progress. The partial results which have been produced by the initial round of DNA testing show that at least one person other than Hank Skinner and the victims may have been present in the house on the night the murders took place, and may have had contact with one of the weapons used in the killings.

We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review.

Specifically, DNA testing of a carpet sample from the bedroom occupied by victims Elwin Caler and Randy Busby reveals a mixture of the DNA of Mr. Caler and that of an unknown person who is not Mr. Skinner, Randy Busby, or Twila Busby.

In addition, DNA testing of one stain on a knife that may well have been used in the murders reveals a mixture of DNA from three contributors.  Two of those contributors appear to be Mr. Caler and Mr. Skinner, but the third contributor is someone other than Mr. Caler, Mr. Skinner, Randy Busby or Twila Busby.

The DPS crime laboratory submitted the unknown DNA profile from the carpet sample to the Texas law enforcement DNA database, but that search produced no matches.

We have requested additional DNA testing that could improve the quality of the unknown DNA profile from the carpet sample, to allow authorities to submit it to CODIS, the national law enforcement DNA database, to search for matches there.  We have also requested additional DNA testing of the stains from the knife, likewise hoping to develop further the DNA profile of the third contributor.

All the parties must do everything in their power to make sure Texas does not make an irreversible mistake.”

 "AG Says DNA Tests Implicate Hank Skinner in '93 Murders," is Brandi Grissom's post at the Texas Tribune.

DNA testing that death row inmate Hank Skinner sought for more than a decade further implicates him in the New Year’s Eve 1993 triple murder for which he was sentenced to die, according to an advisory that the Texas Attorney General’s Office filed Wednesday in Gray County state district court. 

But a lawyer for Skinner, who was convicted in 1995 of the murders of his live-in girlfriend, Twila Busby, and her two adult sons in Pampa, said the DNA testing is incomplete and indicates that another person may have been at the scene of the crimes.

And:

The AG’s office reported that a rape kit did not indicate that Busby was sexually assaulted, and vaginal swabs did not reveal DNA from any other person. Fingernail scrapings and hairs from Busby’s body also did not reveal another person’s DNA, the advisory states.

The DNA results, state lawyers wrote, also show that Skinner’s blood was found in the back bedrooms of the house, where Randy Busby was found stabbed to death in the back. Skinner’s DNA was identified in blood stains from a tape, in two blood stains on a tennis shoe, a blood stain from the bedspread, a blood stain on a cassette holder and on a blood stain near a dresser in the boys’ bedroom.

Skinner’s DNA was also found on the handle of a bloody knife that was recovered from the front porch of the home, along with DNA from Caler and at least one other contributor, who was not identified.

But testing was not done on a man’s jacket found at the scene, because that item had been lost. Owen has said the jacket is a critical piece of evidence that must be tested, because it looks like one that Twila Busby’s uncle Robert Donnell wore. 

Skinner has argued that investigators should have looked at Donnell, who has since died. Donnell had a history of violence, and witnesses reported that he was making advances toward Busby shortly before the murder.

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

Wednesday

I'll be traveling much of Wednesday.  Posts will resume as WiFi allows.

Texas Executions Scheduled for Wednesday & Thursday

Texas is scheduled to carry out its 14th execution of 2012, tonight in Huntsville.  It would be the 491st post-Furman Texas execution since 1982, and the 252nd execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Execution looms for serial rapist, murderer," is Michelle Mondo's San Antonio Express-News report.

Ramon Hernandez is set to be executed Wednesday for the 2001 abduction, rape and killing of Rosa Maria Rosado.

But the man prosecutors have called a serial rapist and murderer is known to have other victims.

Rosado, whose body was found in a shallow grave near Loop 1604 and UTSA Boulevard, was the first of five victims authorities connected to Hernandez or named him as suspect. It was his only conviction.

On Thursday, Texas is scheduled to execute Preston Highes III.  Allen Turner writes, "Thursday execution still on schedule after killer denied commutation," for the Houston Chronicle.

Houston killer Preston Hughes III's claims that police lied at his trial failed to sway the Texas Board of Pardons and Paroles, which on Tuesday unanimously voted not to recommend that the governor commute the local warehouse worker's death sentence to life in prison.

Hughes, 46, is set to be executed Thursday for the Sept. 26, 1988, stabbing murders of La Shandra Charles, 15, and her 3-year-old cousin, Marcell Taylor.

Hughes, who was on probation for sexually assaulting a 13-year-old girl at the time of the killings, has claimed innocence. Hughes' case has drawn international attention among death penalty critics who believe his case was marred by irregularities.

The killer's lawyer, Pat McCann, said he will pursue his client's appeals in the U.S. Supreme Court and at the Harris County civil court level.

To date, there have been 37 executions in American death penalty states this year; a total of 1,314 post-Furman executions since 1977.

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), Wednesday and Thursday.

These are the final two Texas executions scheduled for 2012.  According to TDCJ, five execution dates have already been set for 2013. 

Capital Punishment and North Carolina

There is a moratorium on exectutions in North Carolina due to lethal injection issues.  One death sentence was overturned earlier this year under the state's Racial Justice Act.

The Raleigh News & Observer reports, "No one sentenced to death in North Carolina this year."  It's written by Anne Blythe.

As North Carolina politicians engaged in rigorous debate this year about whether capital punishment should exist, the juries that actually decide death-penalty cases made a statement of their own.

No jury in North Carolina has come back with a death sentence this year, and there are no more capital cases on the 2012 docket.

That’s the first time since 1977, when the death penalty was reinstated in this state, that a jury has not sentenced at least one person to execution.

“The idea that we’ve come this far in 35 years is a powerful statement of where the public is at in North Carolina,” said Ken Rose, an attorney at the Center for Death Penalty Litigation and a death penalty critic. “It’s a verdict on the death penalty.”

And:

The record-low of four capital trials in North Carolina comes at a time when many states are wrestling with proposals to abolish capital punishment.

In 2004, the courts declared the death penalty to be unconstitutional in New York. In 2007, New Jersey repealed its death penalty law, with New Mexico following suit in 2009 and Illinois in 2011. This year, the Connecticut legislature passed a bill to abandon the death penalty for future convictions, but the 11 men on death row may still be executed.

But in California this week, 53 percent of the voters rejected a ballot initiative to repeal the death penalty and move all death row inmates to life in prison without possibility of parole.

Though North Carolina has not put such questions about the death penalty on the ballot, there has been a de-facto moratorium on executions since 2006, when a series of lawsuits were filed challenging the fairness and humanity of the state-sponsored executions.

Earlier coverage from North Carolina begins at the link.

A Texas Prosecutor Faces Justice

That's the title of Joe Nocera's OpEd column in today's New York Times.

In just about a month from now, Texas will witness a rare event: a former prosecutor is going to be held to account for alleged prosecutorial misconduct.

He is Ken Anderson, who for nearly 17 years was the district attorney in Williamson County, a fast-growing suburb of Austin. (In 2002, Gov. Rick Perry made him a district judge.) As Pamela Colloff writes, in a brilliant two-part series in Texas Monthly, Anderson was the kind of prosecutor who “routinely asked for, and won, harsh sentences and fought to keep offenders in prison long after they became eligible for parole.”

One of Anderson’s most high-profile prosecutions was of a man named Michael Morton. In 1987, Anderson prosecuted him for a heinous crime: His wife, Christine, was bludgeoned to death. Morton was then in his early 30s, with a 3-year-old son and a job at Safeway. He had never been in trouble. Yet the Williamson County sheriff, Jim Boutwell, from whom Anderson took his cues, was convinced that Morton had committed the crime.

Evidence that could be used against him — such as a plaintive note Morton wrote to his wife after she fell asleep when he was hoping to have sex — was highlighted. Evidence that suggested his innocence — most importantly, a blood-stained bandana discovered near Morton’s house — was ignored. Worst of all, Anderson’s office hid from the defense some crucial evidence that would undoubtedly have caused the jury to find Morton not guilty. By the time Morton was sentenced — to life — only his parents and a single co-worker believed he was innocent.

But he was. 

And:

What makes the Morton case unusual is that, thanks to the Innocence Project’s re-investigation, Ken Anderson will soon go before a Texas Court of Inquiry. If the court believes that Anderson’s alleged misconduct rises to the level of a crime, it could refer the matter to a grand jury. But the Court of Inquiry exists only in Texas, and is almost never used even there.

In truth, Anderson isn’t the only Williamson County prosecutor who faced consequences as a result of the Morton case. His successor, John Bradley, was the one who had fought for years against the DNA testing of the bandana. Seven months after Morton was set free, Bradley, who had always been a shoo-in for re-election as district attorney, was resoundingly defeated.

Pamela Colloff's, "The Innocent Man, Part 1," and "The Innocent Man, Part 2," are available at Texas Monthly.

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

Colloff also wrote a Texas Monthly article, "Innocence Lost," that called critical attention to Anthony Graves' case before his capital exoneration.  After his exoneration she wrote, "Innocence Found."

New Hampshire Supreme Court to Review State's Sole Death Sentence

"Daylong hearing set in death sentence appeal," is Lynne Tuohy's AP report, via the Boston Globe.

The state’s only death-row inmate will have his day in court — all day — when the New Hampshire Supreme Court hears arguments pertaining to his sentence.

Michael Addison was sentenced to death for fatally shooting a 35-year-old Manchester police officer, Michael Briggs, in 2006, when Briggs tried to arrest him on robbery charges.

The justices in Addison’s case will be deliberating the death penalty for the first time in more than 50 years — deciding, among other things, whether Addison’s sentence is just or was a product of passion or prejudice.

The justices will hear arguments in the case beginning Wednesday morning, holding four blocks of hearings that are scheduled to end at 3 p.m.

Court observers say the daylong hearing on Addison’s conviction and death sentence is unprecedented. A typical hearing before the justices lasts half an hour.

"New Hampshire Supreme Court to hear convicted killer Addison's appeal this week," is Bill Smith's report for the New Hampshire Union Leader.

The state Supreme Court will hear oral arguments Wednesday in the appeal of the man sentenced to die for the 2006 murder of Manchester police officer Michael Briggs.

Defense attorneys have appealed condemned killer Michael Addison's conviction and the death sentence imposed by a Hillsborough County jury in 2008.

Addison was convicted of capital murder in the death of Briggs, who was gunned down in an alley while in pursuit of a suspect in 2006.

In an order handed down Nov. 2, the high court set aside a full day for hearing the 22 issues raised in the condemned man's appeal.

Addison's attorneys have raised the constitutionality of the state's death penalty as an issue in the case.

Several other questions of law have been raised on appeal. The justices are being asked to decide if the trial judge erred in not changing the location of the trial, and whether prosecutors were unfairly permitted to raise "passion, prejudice or other arbitrary factors" in arguments to the jury.

The Nashua Telegraph reports, "Death penalty opponents to hold vigils outside Addison’s Supreme Court hearings," by Joseph G. Cote.

While lawyers and justices parse complex legal concepts and jargon and a convicted cop killer waits to see if he will be executed, death penalty opponents will be thinking about the big picture later this week and protesting outside the state’s highest court.

The New Hampshire Coalition to Abolish the Death Penalty will hold silent vigils outside the New Hampshire Supreme Court before and after hearings on Michael Addison’s trial in the 2006 shooting death of Manchester Police Officer Michael Briggs.

The hearings, which will be held from 9 a.m.-3 p.m. Wednesday, could decide whether Addison will become the first person executed in New Hampshire in decades.

The coalition said death penalty opponents, including former law enforcement officers, church leaders and relatives of murder victims, will participate in the vigils from 7:30-9 a.m. and 2:45-4 p.m. at the 1 Charles Doe Drive courthouse.

Earlier coverage of Michael Addison's case begins at the link.

Deutsche Welle on Larry Swearingen's Case

Deutsche Welle reports on the case of Larry Swearingen, "Justice is debatable in Texas death penalty case."  It's written by Andrew Purcell.  Here's the beginning:

In his 12 years on death row, Larry Swearingen's execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anesthetize him, pancurium bromide to paralyze his muscles and potassium chloride to stop his heart.

In January 2009, he had written his goodbyes and was on his way to the chamber when the stay of execution came through. "The way I had to look at it was 'I'm just gonna lay down and go to sleep,'" he said. "I wasn't gonna grovel. I wasn't gonna sit there and cry. I can't be remorseful for a crime I didn't commit."

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston, together with around 300 men and women awaiting execution for capital crimes committed in Texas. He is kept in solitary confinement 24 hours a day, in a cell not quite four meters long (13 feet) and a little over two meters wide, with a slit above head height, more a vent than a window.

Swearingen is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed.

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

Reflections on the California Ballot Initiative Vote

Richard Dieter posts, "The Slow Demise of the Death Penalty," at Huffington Post.  He's the Executive Director of the Death Penalty Information Center.

The death penalty in California survived by a narrow vote on November 6, but around the country the signs are clear that capital punishment is slowly on the way out. Even in California, the close defeat of the referendum to repeal the death penalty marks a significant milestone: in a state where almost three-quarters of the people supported the death penalty 30 years ago, now almost half the voters want it replaced. (Video version of this post here.)

Although California's recent vote means the death penalty will remain, the 47% of voters who favored replacing it indicates many Californians have had a change of heart regarding capital punishment. By contrast, the initiative that reinstated the death penalty in 1978 garnered the support of 71% of voters. In 1986, California's Chief Justice, Rose Bird, was removed from office by 67% of voters because she was perceived as blocking the death penalty.

Nationally, support for the death penalty has seen a similar decline. According to a 1994 Gallup Poll, 80% of respondents supported the death penalty, compared to only 61% in 2011. Moreover, when respondents aregiven alternative choices such as life without parole, support for the death penalty falls below 50%.

Around the country, new death sentences dropped to 78 in 2011, representing a dramatic 75% decline since 1996, when 315 individuals were sentenced to death. It was the first time since 1976 that the country produced fewer than 100 death sentences in a single year. Executions also have steadily decreased nationwide, with 43 in 2011 and 46 in 2010, representing a 56% decline since 1999, when there were 98.

"An Encouraging Bump in the Road to Death Penalty Abolition," is Ty Alper's Huffington Post essay.  He's a professor at UC Berkeley School of Law.

I'm not a huge fan of quoting kids' political analyses. Most major policy issues are more complicated than the naive and innocent elementary school mind. Most, but not all.

So far, every four years in my 10-year-old daughter's life, the people of the United States elect an inspiring African-American president, and the people of California deliver a demoralizing blow with respect to a marker of our progress as a civilized society. It makes for some confusing post-election emotional sorting.

Four years ago, we celebrated Obama's victory but, as Proposition 8 narrowly prevailed, my then-six-year-old couldn't understand why "women can't marry women and men can't marry men." Last night, we cheered Obama's reelection, but she was incredulous about the loss of Proposition 34, which would have abolished the death penalty in the state with the largest death row. "Don't they know what they are killing people for doing?" she asked (having recently discovered sarcasm).

She's right, of course, on both counts. You don't have to be smarter than a fifth grader to understand why it is wrong to deny someone the right to marry the partner of his or her choice. And whether we ought to kill people who kill people is controversial, sure, but not all that complicated. The rest of the Western world has figured it out.

When the moral clarity of a child's mind accounts for all the pragmatic concerns we adults can generate, the resolution is a foregone conclusion. The only question is timing.

New American Media posts an interview with Sister Helen Prejean, "Prop 34 'Tilled the Soil' of the Anti-Death Penalty Movement."

California has the largest number of prisoners on Death Row -- a total of 722 people -- which is almost two times as many as those in the next largest state, Texas. Prop. 34, the initiative to repeal the death penalty, was backed by high-profile individuals, from Bill O'Reilly to Alec Baldwin. Yet, it went down in defeat, with 52.7 percent of voters rejecting it. Do you see the defeat as the end of the struggle to end capital punishment in California?

It was very close, and [it was] the first all-out initiative to end capital punishment. But think of the millions of people who were educated by it. It tilled the soil. In three years, opponents will be ready to push for a ban again.

And:

Do you agree with the financial argument against the death penalty made by Prop 34 proponents, that the state can’t afford to house Death Row inmates, given how much it costs for the appeals process?

When it comes to housing Death Row inmates, taxpayers are paying for both sides – the prosecution and the defense. We’re spending millions to put people on Death Row. California has spent $4 billion since capital punishment resumed in 1977. And only 13 inmates have been put to death in that time. The death sentence costs California an additional $184 million a year above and beyond what it would be spending were all its inmates transferred to life without parole, the alternative put forward by Prop. 34.

States that still have the death penalty should put all those billions spent in housing Death Row inmates into law enforcement and solve unsolved crimes.

The Los Angeles Times publishes the editorial, "Crime and punishment in California."

Is California's costly tough-on-crime era over? That's perhaps too optimistic a conclusion to draw from Tuesday's election results. In passing Proposition 36, voters curbed some of the excesses of the state's three-strikes law, but they also rejected a measure to roll back the death penalty and adopted one — Proposition 35 — that broadens the sex offender registry and imposes new life terms for some human trafficking offenses. The state has ceased its relentless march down a road toward ever-tougher sanctions, ever-more-crowded prisons and ever-rising costs. It has not turned the corner, but it's peering around it, trying to get a sense of whether it's safe to proceed.

And:

As for the death penalty, voters kept what they had: a penalty on the books, but virtually no executions in reality. It's a sort of truce between fear and anger on the one side and wisdom and pocketbook on the other. It is the corner on which California nervously stands as it decides which way to go next.

"Prop. 34 Defeat a Civil Liberties Loss," is the San Diego Union-Tribune written by Danielle Gram, a co-founder of Kids for Peace.

True or false: Killing is wrong.

On Election Day, Californians decided the answer is false, rejecting Proposition 34 which would have replaced the death penalty with a sentence of life imprisonment with no possibility of parole. The defeat of Proposition 34 was the greatest civil liberties loss of the election, with Californians deciding to continue executing prisoners despite its high cost, moral qualms about the practice, and inconclusive evidence about its ability to deter crime.

Californians defeated Proposition 34 by a relatively narrow margin, with 52.8 percent voting to keep capital punishment and 47.2 percent voting to abolish it. The numbers represent a shift in voter perceptions on the issue, influenced in part by a growing body of evidence mounting against capital punishment.

And:

Disappointing as the defeat of Proposition 34 may be, supporters hope that the proposition’s near passage will motivate people to more actively support the initiative in the future. I, for one, plan on joining the league of murder victims’ families against capital punishment in California. Having experienced the murder of my only brother, I am ready for the killing to stop, and where better to start than at the highest levels of state.

Earlier coverage from California begins at the link.

Update on Obese Ohio Death Row Inmate's LI Challenge

"Doctor says veins of obese Ohio inmate condemned to die inaccessible, injection unlikely," is the title of Andrew Welsh-Huggins' AP report.  It's via the Washington Post and also available from NECN.

A condemned killer fighting his execution because of his extreme weight does not have accessible veins in his arms or hands and could not receive a lethal injection in his legs because he is so obese, a doctor said in a court filing.

Death row inmate Ronald Post wants a federal judge to stop his January execution on the grounds his weight could cause him to suffer severe pain during the procedure. The state opposes the request.

Ohio attorneys had criticized an earlier filing by Post based on an analysis by a doctor who didn't examine him.

Thursday's filing sought to counter that opposition by presenting the affidavit of a doctor who extensively examined Post and interviewed him about his medical history.

It is "highly unlikely" that an IV could be placed in Post's legs and "extremely unlikely" that veins could be found in his hands, Ohio State medical center anesthesiologist Sergio Bergese said in affidavit dated Oct. 31 and filed Thursday.

Post also has scars on his left and right forearms from a suicide attempt that make his veins inaccessible for an IV, Bergese said. Post weighs more than 400 pounds, the doctor said.

And:

Post has tried losing weight, but knee and back problems have made it difficult to exercise, according to his court filing.

Post's request for gastric bypass surgery has been denied, he has been encouraged not to walk because he's at risk for falling, and severe depression has contributed to his inability to limit how much he eats, his filing said.

Earlier coverage of Ronald Post's case begins at the link.

Post's request for gastric bypass surgery has been denied, he has been encouraged not to walk because he's at risk for falling, and severe depression has contributed to his inability to limit how much he eats, his filing said.

Idaho Supreme Court Considers Capital Review Standard

"Idaho high court considers death penalty reviews," is Rebecca Boone's AP report, via the San Francisco Chronicle.  It's also available via the Spokane Spokesman-Review.

The Idaho Supreme Court is deciding just how much of each death penalty case they must consider under Idaho's mandatory review law, and the ruling could dramatically change the landscape of capital punishment in Idaho.

The issues arose in the case of Timothy Dunlap, who is sentenced to death in both Idaho and Ohio for two murders committed during a 10-day span in 1991.

And:

The Idaho Legislature created the mandatory review law in 1977, requiring the Idaho Supreme Court to review every death sentence whether the defendant wants them to or not.

The law was designed to do two things: First, meet federal requirements that the death penalty be imposed only on a narrow group of criminals whose crimes were worthy of such a severe sanction; and second, speed up the appeals process by ensuring there were no problems with the way the death penalty was imposed.

But Idaho Deputy Attorney General LaMont Anderson says the law has actually slowed death row cases because the Idaho Supreme Court has never defined the scope of the mandatory review.

That means that once the mandatory review is done, the federal appeals court assumes the Idaho Supreme Court justices have considered all the sentencing issues in a case, even if a particular issue was never mentioned before the lower court. Many types of appeals can't be brought before the federal courts until they've been considered by a state court, but since the federal courts have interpreted Idaho's mandatory review law as all-encompassing, virtually no sentencing appeal is off limits, Anderson contends.

But Shannon Romero, Dunlap's defense attorney with the state's appellate public defender's office, maintains that the Idaho Supreme Court has implemented the mandatory review rule correctly.

Related posts are in the judiciary and post-conviction review category indexes.

Pennsylvania Stay Holds

The York Daily Record reports, "Supreme Court leaves Hubert Michael's stay of execution in place," by Rick Lee.

The U.S. Supreme Court denied the Pennsylvania attorney general's appeal to reverse a stay of execution for Hubert Michael Jr. that had been granted earlier in the day.

Six hours before his scheduled execution, Hubert Michael was granted a stay by a Third Circuit Court judge.

The execution had been set for 7 p.m. Thursday at Rockview state prison near State College.

"State prosecutors fall short in late efforts to see Michael executed," is the Harrisburg Patriot-News report by Donald Gilliland.

Six hours before Hubert L. Michael Jr. was to die by lethal injection, the stay of execution was issued.

The decision spared Michael’s life, at least temporarily, and added to the anguish of a family that has waited for his execution for nearly two decades.

The U.S. Third Circuit Court of Appeals on Thursday issued the stay around 1 p.m. Several hours later, the U.S. Supreme Court upheld the order to halt the execution.

And:

The order for a stay directed U.S. District Judge John E. Jones III to hold briefings and submit a background explanation of his decision to allow the execution to proceed. Jones must file his response within 14 days.

The appellate court then will hold its own briefings and determine whether Jones erred in his decision and whether Michael’s habeas corpus petition should be heard to determine its merits.

Michael’s attorneys claim he has “suffered from debilitating mental conditions” most of his life, which have factored into his often erratic posture with lawyers and the courts. His lawyers say he suffers from Asperger’s syndrome.

Michael repeatedly has changed his mind as to whether he wants his appeals to go forward.

Earlier coverage of Hubert Michael's case begins at the link.