The StandDown Texas Project

Kentucky to Change Lethal Injection Protocol

"Kentucky to change execution method from 3 drugs," is the AP report by Brett Barrouquere, via the Louisville Courier-Journal.  It's also available via the Lexington Herald-Leader.

Kentucky officials signaled Thursday they will change how prisoners are executed, opening the door to using a single drug instead of the current three-drug method that has been challenged by inmates who call it cruel and unusual punishment.

The Kentucky Justice Cabinet filed notice in Franklin Circuit Court that it would propose new regulations by July 24. The single-page motion does not say what changes will be made. The new method could be in place by late summer, allowing Kentucky to begin executions later this year.

Justice Cabinet spokeswoman Jennifer Brislin declined comment.

Franklin Circuit Judge Phillip Shepherd in April gave Kentucky 90 days to make changes or face a trial to defend the three-drug method.

Shepherd said if Kentucky adopts a new regulation allowing for a one-drug execution — similar to what is done in Ohio, Arizona and other states — any claims of cruel and unusual punishment by the inmates “will be rendered moot.”

The battle over Kentucky’s lethal injection method has been going on for more than a year and a half. The judge’s ruling and Kentucky’s decision comes just months after the American Bar Association issued a report calling for a moratorium on executions in Kentucky, in part because of the number of cases overturned since the reinstatement of the death penalty in 1976.

At least seven states use a single drug to carry out executions. Three states — Idaho, Washington and South Dakota — give an option to use more than one drug.

In the last week, Missouri became the first state to switch to propofal, the same anesthetic that caused the overdose death of pop star Michael Jackson.

Kentucky’s current method calls for a single drug or combination of drugs. The state last used sodium thiopental, pancurionium bromide and potassium chloride, a combination similar to the one used by Georgia and some other states.

And:

To change the regulations, Kentucky officials must submit to the state a new execution method, which is made public. If a legislative subcommittee does not meet or does not find the regulation deficient within 30 days of publication, the regulation takes effect.

Earlier coverage of Kentucky lethal injection issues begins at the link.  Judge Shepherd's order to consider a single drug execution and an order on aspects of the state's Administrative Procedures Act are available in Adobe .pdf format.

Related posts are in the lethal injection category index.

Coverage of the ABA's Kentucky Death Penalty Assessment report is also available.

End Kentucky's Death Penalty

That's the title of an editorial in today's Lexington Herald-Leader.  It was originally published in the Owensboro Messenger-Inquirer.

Just when we thought we heard it all, a Franklin circuit judge decided last week that Kentucky's three-drug concoction to execute its prisoners may no longer be necessary. In his decision, Judge Phillip Shepherd said there is a single drug available that other states have successfully used for lethal injections.

Is this what it has come to? Arguing over how many drugs it takes to kill a person? To be fair, Shepherd was only doing his job after death-row inmates brought the case to court. He ruled the single-drug switch be made within 90 days, or the case will go to trial.

Instead of debating the number of drugs used in a lethal injection, why not concentrate on moving away from executions altogether?

In 2009, the state was spending $8 million more a year on its 34 death-row inmates than those with life sentences, according to the Department of Public Advocacy. That's not counting medical costs that go along with housing prisoners for 15 to 20 years. Adding more weight is the recent two-year study from the American Bar Association that found "substantial" flaws in how death penalty cases are tried and appealed in this state.

And:

Why can't it be about a life sentence? Justice will be still be served, and we could then be assured that a wrongly convicted person wouldn't be sent to their death simply because the state insists on picking its own poison — and in Kentucky's case, we mean that literally.

Earlier coverage of Kentucky lethal injection issues and the ABA assessment begins at the links.

The Responsibilities of Prosecutors

The American Bar Association has posted an excellent discussion, "Prosecutorial Accountability in the Post-Connick v. Thompson Era: Reforms and Solutions," on its website.  The panel discussion was held at the ABA Midyear Meeting in New Orleans, this February.  Here's a brief description:

Prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the law. But twice in the past two years the alleged misconduct of the Orleans Parish District Attorney’s Office has been the subject of a case before the United States Supreme Court. This program brought together prosecutors, ethics experts, a former death row prisoner, and academics to discuss these important cases, whether and how prosecutors should be held accountable for misconduct, and possible solutions and reforms which will help limit future misconduct.

Prosecutorial Accountability Project from Bruce France on Vimeo.

 

It was co-sponsored by several ABA groups; Death Penalty Representation Project, Criminal Justice Section, Section for Individual Rights and Responsibilities, Section of Litigation, and Death Penalty Moratorium Implementation Project.

Earlier coverage of Connick v. Thompson begins at the link.  Related posts are in the ABA and prosecutorial misconduct indexes.

Thanks to Tristin Aaron for forwarding.

Supreme Court Rules on Ineffective Assistance Case

Tuesday's Supreme Court ruling in Martinez v. Ryan is available in Adobe .pdf format.  The ABA Criminal Justice Section provides this summary of the ruling:

In an opinion by Justice Kennedy, the Court reversed the decision of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings consistent with its opinion.  The Court held that where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.  Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

"Court Ruling Could Affect Texas Death Row Cases," is Brandi Grissom's Texas Tribune report on the case and its implications.

Death row inmate Jesse Joe Hernandez, set to be executed next week for the 2001 death of a 10-month-old boy in Dallas, is hoping that a ruling Tuesday from the U.S. Supreme Court could give him another chance to prove that the tragedy was not entirely his fault. 

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of Hernandez, arguing that his March 28 execution should be stayed, in part, because of the court’s ruling.

And:

Levenson said that even though Tuesday’s Supreme Court ruling applies to claims made in federal court — not state writs like the one he filed — the same principle ought to apply.

“We’re saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them,” he said.

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

"Supreme Court Rules for Inmate With Double Claims of Ineffective Assistance; Scalia Detects a ‘Sham’," is Debra Cassens Weiss's ABA Journal report.

A prisoner who claimed he received ineffective assistance at trial and once again at his first opportunity to raise the claim on review got some help from the U.S. Supreme Court today.

The court, in an opinion (PDF) by Justice Anthony M. Kennedy, refused to address whether convicted sex offender Luis Mariano Martinez had a constitutional right to effective assistance of counsel in the state collateral appeal. But the court held in a 7-2 opinion that ineffective assistance by the appellate lawyer could excuse Martinez’s failure to raise the ineffective assistance claim, allowing a federal court to consider the issue.

And:

“When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim,” Kennedy said. “And if counsel’s errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims. The same is not true when counsel errs in other kinds of postconviction proceedings.”

Also:

In a statement released Tuesday, ABA President Wm. T. (Bill) Robinson III applauded the decision. “This significant ruling will help ensure fairness and justice for many criminal defendants throughout the country, including those on death row,” he said. “Many defendants who received ineffective representation or no representation at all during their post-conviction proceedings have been unable to present claims concerning violations of their constitutional rights at trial in federal court. The court’s decision today recognizes the injustice of that circumstance.”

Courthouse News Service posts, "Ineffective Counsel Case Gets High Court Reboot," by Barbara Leonard.

The majority opinion gives an Arizona inmate clearance to belatedly challenge his defense attorneys as he appeals his conviction for sexual conduct with a child.

Luis Mariano Martinez is serving two consecutive terms of 35 to life in Arizona for two counts of sexual conduct with a person under the age of 15. Martinez's 11-year-old stepdaughter claimed she was abused, but later recanted. The state also admitted the girl's nightgown into evidence, pointing out that it had traces of Martinez's DNA.

Arizona appointed a new attorney to represent Martinez in his direct appeal, but the lawyer never claimed that Martinez's trial counsel was ineffective. In Arizona, inmates must bring such claims separately at state collateral proceedings. Martinez said the court-appointed appellate counsel failed to consult with him or inform him about what he needed to do to raise claims he believed his counsel had overlooked.

Armed with yet another attorney for his second notice of postconviction relief in the Arizona trial court, Martinez claimed that his trial lawyer had been ineffective for not challenging the prosecution's evidence.

The state rejected this petition, however, noting that Arizona law bars relief on a claim that could have been raised in a previous collateral proceeding.

Related posts are in the ineffective assistance of counsel index

Legislature's Capital Offense

That's the title of a Kentucky editorial in today's Lexington Herald-Leader.

Just before this legislative session began, the American Bar Association released the results of a two-year review of the death penalty in Kentucky.

The findings were stark and disturbing. No one who read the report could come away feeling certain that our state had done the right thing each time a person was condemned to death. The briefest snapshot includes these findings: At least 10 of the 78 people sentenced to die since 1976 were represented by lawyers who were later disbarred; of those 78 convictions, 50 were overturned by federal or higher state courts because of significant legal errors.

With that damning evidence in hand, there was hope that the legislature might move forward on some death penalty reform measures.

One measure, House Concurrent Resolution 173, has had some success. HCR 173, which seeks to create a task force to consider the ABA reform recommendations and develop a plan to carry them out, has made it out of committee in the House and will be voted on there this week. While important, it's not a measure that should stir controversy since it only seeks to develop a plan to improve things, so we'll be eager to see how it fares in the Senate.

The story is not so good for House Bill 145, a bill to exempt the severely mentally ill from the death penalty.

And:

We understand that some prosecutors are wary about restrictions on the death penalty. But many current and former prosecutors argue that reform is essential to maintaining a fair, and credible, criminal justice system. We agree with them.

Earlier coverage of the Kentucky ABA Assessment begins at the link.

Kansas City Star on the ABA Missouri Assessment

"State’s death-penalty system needs a thorough review," is the title of the Kansas City Star editorial.  Here's the beginning:

Since the U.S. Supreme Court reinstated the death penalty in 1976, Missouri has executed more people than all but four other states.

But despite abundant evidence of problems in its judicial process, the state has never seriously considered a review of its death-penalty apparatus or even discussed a framework for one. Now the American Bar Association has provided valuable guidance.

The ABA commissioned a panel of lawyers, judges and scholars to assess whether Missouri measures up to well-established protocols for ensuring a fair process and minimizing the risk of executing an innocent person. The panel’s exhaustive study turned up serious problems with the way people are charged and tried in capital cases.

In many ways, Missouri is behind the times. It doesn’t mandate the best practices for eyewitness identification and interrogation procedures. Its ban on executing mentally retarded people doesn’t account for traumatic brain injuries, dementia or severe mental illness. And its parameters for what constitutes a capital case are too broad.

The best step Missouri could take would be to abolish its death penalty. Unfortunately, state politics today make that an unlikely development. But the state should take pains to make its system fairer and safer.

Earlier coverage of the Missouri Assessment report begins at the link.  The ABA Missouri Assessment is available at the ABA Moratorium Implementation Project website.

Read more here: http://www.kansascity.com/2012/03/13/3489049/the-stars-editorial-missouri-ignores.html#storylink=cpy

Reactions to ABA Assessments in Missouri & Kentucky

The St. Louis Post-Dispatch editorial is, "Report cites numerous failings in applying death penalty," regarding the recently issued ABA Missouri Assessment.

When Gov. Jay Nixon spared the life of killer Richard Clay last January, he, perhaps unwittingly, highlighted a key shortcoming in how the death penalty is applied in Missouri.

Mr. Nixon decided that Mr. Clay shouldn't die for the 1994 murder-for-hire of Randy Martindale in Missouri's Bootheel, but he didn't say why.

At the time of Mr. Nixon's decision, a panel of distinguished Missouri legal scholars already was one year into an exhaustive study into whether the state's application of death penalty statutes complies with the American Bar Association's protocols to ensure fairness and accuracy.

That report, which was released last week, found numerous, serious problems with how the death penalty is applied in Missouri. Among the findings is that the last step in the process, whether or not the governor offers some form of clemency, is not transparent.

And:

Every man or woman on death row deserves a public airing of his or her case. Every decision regarding the state's immense power to decide life or death deserves a transparent process so that, at the very least, there can be public confidence that the ultimate punishment is applied fairly and accurately to the most heinous killers.

That is not the case in Missouri today.

In December the ABA issued its Kentucky Assessment Report.  Today's Lexington Herald-Leader publishes the OpEd, "Prosecutors: Ky. capital punishment unfair." 

Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death sentence overturned on appeal by Kentucky or federal courts because of significant legal errors. That is an unacceptable error rate of more than 60 percent.

Kentucky's justice system is at an historic moment. As a matter of basic fairness, we must pause to understand and reform the way capital punishment is administered in our state.

Each of us is a current or former prosecutor, some of whom have prosecuted capital cases in our commonwealth.

As prosecutors, we continue to believe that heinous criminal conduct must be punished severely in a way that advances public safety.

However, punishment must be a result of a fair process that produces valid results in which we have full confidence. It is time to suspend executions in Kentucky until the reforms recommended by a groundbreaking professional study are implemented.

Over the last two years, the American Bar Association Kentucky Assessment Team on the Death Penalty, consisting of two retired Kentucky Supreme Court Justices, a former chair of the House Judiciary Committee, distinguished law professors and bar leaders, conducted the most extensive evidence-based analysis of the manner in which the death penalty is administered in Kentucky in the history of the commonwealth.

It's signed by John L. "Jack" Smith, former U.S. Attorney for the Western District of Kentucky; Alexander T. "Sandy" Taft, former U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, former U.S. Attorney for the Western District of Kentucky and former Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, former Jefferson County Commonwealth's Attorney; Michael J. "Mike" O'Connell, Jefferson County Attorney; Joe Gutmann, former Jefferson County Assistant Commonwealth's Attorney; Scott C. Cox, former Assistant U.S. Attorney; Larry D. Simon, former Jefferson County Assistant Commonwealth's Attorney; Will Collins, former Letcher County Commonwealth's Attorney; Jeffrey A. Darling, former Fayette County Assistant Commonwealth's Attorney; J. Stewart Schneider, former Boyd County Commonwealth's Attorney.

The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Earlier coverage of the Kentucky and Missouri reports begins at the links.

Additional Coverage of ABA Missouri Report

The ABA Missouri Assessment Report is available at the link.

Today's Kansas City Star reports, "Missouri death-penalty cases should be reduced, study says."  It's by Jason Hancock.

Missouri should narrow the kinds of cases subject to the death penalty so that only the most serious murders are eligible, according a two-year study sponsored by the American Bar Association.

The state also should prohibit the execution of the severely mentally ill and do a better job of preserving forensic evidence such as DNA samples. it said.

The study, which does not take a position on whether the death penalty should be legal, was released Thursday and conducted by a panel of law professors, private attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents.

They said serious problems with the death penalty in Missouri must be addressed to ensure fairness in the system and prevent an innocent person from losing his or her life.

“It is the ultimate penalty, and we’ve got to get it right every time,” said Douglas Copeland, a St. Louis attorney who served on the panel.

Among the panel’s other suggestions: improving standards for defense counsel in death penalty cases; revising jury instructions to help jurors better understand their roles in death penalty cases, and narrowing the number of cases subject to the death penalty.

“We discovered important procedural and resource changes that could dramatically reduce errors and inconsistencies in Missouri’s death penalty system,” said Paul Litton, a law professor at the University of Missouri-Columbia.

"Study recommends changes to Missouri death penalty system," by Elizabeth Crisp for the St. Louis Post-Dispatch.

Missouri prosecutors too often are given the opportunity to seek the death penalty in murder cases, according to a new report.

Aside from limiting the types of cases in which the death penalty can be sought, the American Bar Association-sponsored report makes more than 25 recommendations that it says would improve fairness in the use of capital punishment here. The recommendations range from new evidence preservation policies to laws that aim to protect the mentally disabled.

Currently, prosecutors can use one of 17 aggravating circumstances to argue for death sentences in murder cases.

“Under the current law, virtually any murder is eligible for the death penalty,” said St. Louis attorney Douglas Copeland, who co-chaired the assessment committee that drafted the recommendations.

And:

Missouri is the 10th state for which the ABA has sponsored a death penalty report.

Copeland said the committee members’ views on the death penalty were split. The ABA has sought a moratorium on use of the death penalty in the United States, but the Missouri group did not consider whether the state should end the use of capital punishment, he said.

Instead, the goal, Copeland said, was to “minimize the risk of executing the innocent” and make sure that capital punishment is used only in the most egregious cases.

“Everyone must recognize that it is the ultimate penalty and one that cannot be undone,” he said. “We must get it right every time.”

"Bar Association: Missouri death penalty needs reform," by Jessica Machetta at MissouriNet.  There is video at the link.

A Missouri law panel says crimes punishable by the death penalty are too broad in our state. The American Bar Association report calls for consistency and clarification in state law.

Missouri is the tenth state for which the American Bar Association has released an in-depth analysis — 400 pages worth — of the death penalty. St. Louis Attorney Douglas Copeland was on the panel that has examined the system for two years.

He makes one thing clear — it was not the panel’s function to decide whether there should be a death penalty, or that a moratorium should be implemented.

The Missouri Association of Prosecuting Attorneys responded to that by issuing a statement that says, “Missouri’s prosecutors are pleased the ABA did not recommend a moratorium on the death penalty, as they have in many other states. They obviously realize that, while there is always room for improvement, Missouri’s criminal justice system is fundamentally sound.”

The group did identfiy several factors it says leads to possible inconsistencies in sentencing, including mental illness, preservation of DNA evidence and trial court instruction for jurors. Now, prosecutors can argue to a jury that someone should be sentenced to death, the report says. It lists 17 aggravating circumstances that give prosecutors a wide birth for recommending the death penalty.

"Commission finds death penalty unevenly applied in Missouri," by Dick Aldrich at Missouri News; also with video..

The goal of the assessment team was not to support or rally against the state’s current capital punishment law. Rather, panel member Douglas Copeland said the panel’s assignment was to conduct a review of the laws, procedures, and practices by which the death penalty is implemented in Missouri.

“We kind of left our opinions on the death penalty at the door,” said panel spokesman Douglas Copeland, a private practice attorney from St. Louis.

Overall, the committee found that inconsistencies in Missouri’s laws lead to broad interpretations that in turn lead to inconsistent sentencing. University of Missouri Law School professor Paul Litton said the U.S. Supreme Court has ruled that the death penalty should be reserved only for the most extreme cases of murder. Litton said the assessment team found 17 aggravating circumstances in Missouri law that trigger the death sentence, with many creating broad categories under which a criminal can receive a death sentence.

“As a result, the aggravating circumstances provide little guidance to prosecutors with respect to sentencing decisions,” said Litton.

Professor Rodney Uphoff of the University of Missouri School of Law said Missouri courts hand out the death sentence in a seemingly arbitrary manner.

“And the problem with that is, in a run of the mill armed robbery that sadly ends in a murder, that young man gets the death sentence, when across the state, somebody who commits a double homicide only gets life, or life without the possibility for parole,” Uphoff said. “We’re not criticizing prosecutors, what we’re saying is when you look at crimes across the state, you shouldn’t have a vastly different sentence for somebody who commits a crime on end of the state and not on the other end of the state.”

The report concludes that the state legislature is going to have to work out a solution to the statutory problems to bring more consistency to the death penalty process in Missouri.

Earlier coverage of the ABA Missouri Assessment Report is at the link.

ABA Assessment in Missouri

"Study says Missouri death penalty too broad," is the AP post by David A. Lieb, via the Kansas City Star.  It's also available via the St. Louis Post-Dispatch.

Missouri has too many reasons for which prosecutors can pursue the death penalty against murder suspects and needs to do a better job of preserving forensic evidence such as DNA samples, according to a report being released Thursday.

 The report is the result of a two-year study sponsored by the American Bar Association that was conducted by a panel of law professors, private-sector attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents. The Associated Press obtained a copy of the report before it was to be publicly released later Thursday at a Capitol news conference.

 The study notes that Missouri has 17 "aggravating circumstances" that give prosecutors wide discretion by which they can argue to jurors that someone should be sentenced to death. One justification, for example, is that the murder was "wantonly vile." The result is that the circumstances "are so broadly drafted as to qualify virtually any intentional homicide as a death penalty case," the report says.

 The report recommends narrowing the law so that only the most serious murder cases are eligible for the death penalty.

Also from Missouri, KMOX-AM reports, "Death Penalty Under Review."

The death penalty in Missouri is again under scrutiny, and this time the concern is the cost.   A senate committee heard testimony from a number of people including the Deputy Director of the Missouri Public Defender System, Dan Gralike.

“I am personally familiar with one death prosecution. It had to be retried because because of various errors five times since 1992. I estimate the cost to the state to be well over three or four  million dollars simply for the cost of the public defender.” said Gralike.

A bill under consideration would have the state auditor study the cost of Missouri’s death penalty.   Republican Representative Stanley Cox testified some crimes deserve the death penalty and the option should not be eliminated.

The ABA Missouri Assessment is available at the ABA Moratorium Implementation Project website.

Late last year, a Kentucky Assessment was released.  Related posts, including other state assessments, are in the ABA index.

Florida Juries

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

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

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

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

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

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

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

Earlier coverage from Florida begins at the link.

More Calls for Kentucky Moratorium

Today's Lexington Herald-Leader carries the OpEd, "Suspend state's death penalty lottery."  It's by Ernie Lewis, the former Kentucky public advocate, now with the Kentucky Association of Criminal Defense Lawyers.

When I became Kentucky's public advocate in 1996, one of the first things I did was to call on policy makers to follow the American Bar Association's call for a moratorium on executions. I'd been a public defender for 19 years and, after handling numerous capital cases, had seen firsthand that the death penalty was broken beyond repair.

In 12 years as public advocate, everything I saw reinforced that view. I saw the death penalty was being used against the poor, people with mental retardation and mental illness, as well as people of color. I saw that many lawyers defending capital defendants were not qualified and that the death penalty was used in some counties but not in others.

The problems with the death penalty are once again staring us in the face. A group of prominent Kentuckians, including two former Supreme Court justices, has spent the last two years conducting an in-depth study of how the death penalty works in our state.

What they found has to undermine significantly any confidence we have in this system of life and death.

And:

The Kentucky assessment team recommended "a temporary suspension of executions until the issues identified in this Report have been addressed and rectified."

Gov. Steve Beshear, Attorney General Jack Conway, and Kentucky legislators cannot ignore this report and continue down the road toward another execution. A moratorium should be declared immediately.

AP's Brett Barrouquere files, "Age catching up with Ky. death row population, state's prison medical bills rise."  It's via the Republic.  Here's the beginning of the report:

Randy Haight wakes every morning to sore hands and a creaking body. The 59-year-old blames the pain on arthritis — something that he describes as rampant at his home for the last 17 years — Kentucky's death row.

"It gets a lot of these guys," Haight told The Associated Press in an interview at the prison in Eddyville.

Other than the recreation time, Haight and the 33 other men housed in the Kentucky State Penitentiary's unit for condemned inmates spend their days in cells that are 6 1/2-feet wide, 13-feet long, and 12-feet high. It's a forced lifestyle that, inmates and experts say, has accelerated age-related health problems for the condemned population — causing hands to ache, knees to pop and hips to degenerate.

Kentucky's 35 death row inmates (including one woman held in a different prison) are an average age of just more than 50 years old — an average of 14 years older than the 23,000 inmates in the Kentucky prison system. Condemned inmates have waited more than 16 years for execution, three years longer than the average prison sentence in the state, and 15 have been on death row for two decades or more.

All that time has been spent living a sedentary life in close quarters in a setting that doesn't change much.

"They don't get any kind of stimulus," said Ronald Aday, a sociology professor at Middle Tennessee State University who has studied death row inmates. "They're aging in place with very little interaction."

Some states are using hospices or medical parole to tackle the aging inmate population. Across the country, Human Rights Watch found, 8 percent of the prison population in 2010 was 55 or older, compared to 3 percent in 1995. That's not an option for inmate sentenced to die in Kentucky, so the state is left housing them and paying increasing medical expenses.

While the state doesn't keep separate statistics for the death row population, medical expenses for the Department of Corrections have risen each year since 2008, from $49.1 million that year to $54.8 million in fiscal year 2011. Corrections Department spokeswoman Lisa Lamb said death row inmates get the same level of care as the other 23,000 inmates in state custody — regular access to doctors and medications when necessary.

Earlier coverage from Kentucky begins at the link.

At the Kentucky Legislature

"Ky lawmakers weighing execution halt, task force," is the title of Brett Barrouquere's AP filing.  It's via the Bowling Green Daily News. 

Executions in Kentucky could be halted for a year or more if lawmakers form a task force to study how the system works and correct problems with how death penalty cases are handled, legislators said Wednesday.

Members of the House Judiciary Committee said the proposal will likely be dealt with during the current legislative session, but the details of who would be on the task force and how long executions would stop remain unresolved. The task force idea, though, drew the backing of both death penalty supporters and opponents who heard testimony about how 64 percent of death sentences in Kentucky since 1976 have been overturned.

"This is too ... serious to have this many errors in it," Rep. Brent Yonts, D-Greenville, a death penalty supporter and committee member, told The Associated Press. "You don't take people's lives unless you know what you're doing."

The push for a task force came after members of an American Bar Association team presented lawmakers with a summary of a two-year study of Kentucky's capital punishment system. The study found that state or federal courts overturned the sentences or convictions of 50 of the 78 people sent to death row since the penalty was reinstated in Kentucky in 1976. The ABA committee initially returned its report in December and faulted how the state handles the severely mentally ill, the preservation of evidence and a lack of safeguards against executing the innocent.

Rep. Mary Lou Marzian, D-Louisville, pitched the idea of a task force during the committee meeting and said lawmakers can tackle one issue this session by passing a bill prohibiting the state from executing anyone found to be severely mentally ill.

"In order to be sure you do it right," Marzian said of executions, "you should look at it from all the angles."

Mike Bowling, a former state representative from Middlesboro who sponsored Kentucky's lethal injection bill in 1998, said ABA team members backed the idea of a task force and a halt to executions while lawmakers study the issue and consider possible corrections. Bowling said any suspension would likely last about a year.

Gov. Steve Beshear didn't respond directly to the possibility of a task force, but noted that the state is still under a judge's order stopping all executions.

"In the meantime, we will continue to carefully review and study the 400-plus page report provided by the ABA assessment team," Beshear said in a statement.

And:

Franklin Circuit Judge Phillip Shepherd in 2009 stopped all executions in Kentucky, saying the state didn't have an adequate method of ensuring the mental competency of an inmate once an execution date is set. Shepherd's final ruling in the case is pending. Kentucky has executed three people since 1976, the last in 2008.

Coverage of the ABA's Kentucky review begins at the link; coverage of Kentucky lethal injection issues is also available.  The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Commentary on the Kentucky ABA Assessment

"Place moratorium on Ky. executions," is the title of a Lexington Herald-Leader editorial.  It appeared in the Saturday edition.

The American Bar Association's study of capital punishment in Kentucky is full of disturbing facts, such as:

-  At least 10 of the 78 people sentenced to death since 1976 were represented by lawyers who were later disbarred.

-  Kentucky has inadequate protections against convicting the innocent and permits destruction of evidence while a person is imprisoned, which would make a DNA exoneration impossible.

-  Among jurors, there is a widespread lack of understanding of how they were supposed to weigh the evidence in death penalty cases.

Even supporters of capital punishment, which includes this editorial page, will come away from this study with serious doubts about the fairness and accuracy of the process that condemned 34 people to Kentucky's Death Row.

The study took two years and was overseen by a panel of Kentucky lawyers and law professors, including former Supreme Court justices James Keller and Martin Johnstone.

The ABA, which has no position on the death penalty, has undertaken similar assessments in eight other states, and in five of them recommended a moratorium on executions while flaws in the system were addressed.

The Louisville Courier-Journal carried the OpEd, "Suspend Kentucky executions until system is reformed: Ensuring justice must be our primary concern," written by by William T. (Bill) Robinson III, James E. Keller, and Martin E. Johnstone; all participants in the assessment.

Consider the case of a person convicted and sentenced to die with only the evidence of inadmissible hearsay linking him to the crime. Or the person whose defense counsel consisted of a “semi-retired” volunteer lawyer with a drinking problem and a second lawyer with no experience in trying felony cases. Another egregious case involves a defendant whose lawyers failed to present any evidence that would convince the jury to spare his life, when available evidence would have supported a lesser sentence.

We’re saddened to report that these are not only real death penalty cases in Kentucky, but they’re also all too common. The list of problematic cases is staggering, and review of the system is deeply troubling. Fairness, impartiality and effectiveness of counsel have been undermined by serious flaws that reveal systemic problems in administration of the death penalty in the commonwealth.

Since Kentucky reinstated the death penalty in 1976, 50 of the 78 people sentenced to death have had a death sentence or conviction overturned on appeal due to serious errors or misconduct that occurred at trial.

Most people facing the death penalty are not sympathetic figures. Their alleged crimes are abhorrent and families of the victims experience unfathomable grief. But delivering justice is the foundation of our system — a principle that we must uphold for everyone — even those whose actions are repugnant and even when outraged communities desire to see the ultimate punishment.

And:

We are hopeful that our detailed report and analysis will be a call to action for reform of the death penalty system.In Kentucky, we must reserve capital punishment for the most heinous of offenses and offenders; we have to make sure that we are getting it right. We owe the citizens of this commonwealth no less.

The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Earlier coverage of the ABA's Kentucky report begins at the link.

Halt Executions

That's the title of an editorial in the Louisville Courier-Journal following the release of the ABA Kentucky Assessment of the state's administration of capital punishment.  It appeared in the Sunday edition.

The findings of a blue-ribbon panel that studied the death penalty in Kentucky are disturbing but welcome. Short of abolishing capital punishment, which would be the best course for the commonwealth, a moratorium on executions would be a welcome alternative.

The team of law professors, retired judges and attorneys who studied capital punishment laws and procedures for the past two years found that they do not “sufficiently protect the innocent, convict the guilty and ensure the fair and efficient enforcement of criminal law.”

Nobody should be surprised about this. For decades, the evidence has been strong, in some cases tragic, that executions have been carried out based on either inadequate or even downright false information. The pattern was so disturbing that in 1972, the U.S. Supreme Court struck down state and federal laws that, the majority said, were “arbitrary and capricious.” Laws were re-written to respond to that ruling and by 1977, executions were resumed in many states.

There are all sorts of reasons, both legal and moral, why capital punishment should be eliminated. The United States is the last Western country where the state puts its people to death. And in this country, the instances of where the punishment has been applied in a way that discriminates, particularly against African Americans, are so numerous that it needs to go.

Earlier coverage of the ABA Assessment begins at the link.  The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

ABA Assessment of Kentucky's Capital Punishment System

The American Bar Association's Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Today's Louisville Courier-Journal reports, "Kentucky should suspend death penalty, ABA panel recommends."  It's written by Andrew Wolfson, with additional reporting by Tom Loftus.  Here's the beginning of this lengthy article:

An American Bar Association panel has recommended that Kentucky temporarily suspend the death penalty until it adopts new safeguards to prevent execution of the innocent.

In a 520-page report issued Wednesday, a team of lawyers, professors and retired judges who studied the state’s death penalty laws and procedures for two years found that they do not “sufficiently protect the innocent, convict the guilty and ensure the fair and efficient enforcement of criminal law.”

Public defenders and other defense lawyers hailed the Kentucky Death Penalty Assessment Report and the proposed moratorium, while Attorney General Jack Conway disputed its conclusion that the system is broken and said suspending executions “disregards trial verdicts, years of judicial review and the surviving family members of victims.”

The report, prepared by an eight-member team, said that Kentucky has made “substantial strides” toward ensuring an adequate defense for capital defendants, but that several grave weaknesses remain.

Those include the failure of police departments to follow nationally recommended eyewitness identification and interrogation procedures; the failure to retain evidence for subsequent DNA testing; and the absence of a system for ensuring that the state’s 57 commonwealth’s attorneys apply the death penalty in an “even, non-discriminatory manner.”

The report also found that at least 10 of the 78 people sentenced to death in Kentucky since capital punishment was reintroduced in 1976 were represented by attorneys who were subsequently disbarred, and that 52 of them — two-thirds — had their sentences reversed on appeal or were granted clemency.

The report recommends more than two dozen reforms, including better maintenance of evidence, and says that halting executions temporarily would give all three branches of government the opportunity to rectify problems identified in the report.

Kentucky has executed three men since 1976 and currently has 34 people on death row.

"Lawyers: Kentucky should suspend executions until flaws fixed," is by Bill Estep in the Lexington Herald-Leader.

There are serious flaws in Kentucky's administration of the death penalty, increasing the chance an innocent person could be executed, an American Bar Association team said in a study released Wednesday.

The team recommended halting executions in the state until lawmakers and others correct problems cited in the study.

Those problems include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.

The study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial.

"The underlying concern is that an innocent person not be put to death," said William T. Robinson III, a Northern Kentucky lawyer who is president of the ABA. "When a person's life is at stake, the guarantees of fairness and due process are absolutely paramount."

A poll commissioned by the ABA found that 62 percent of Kentuckians support a temporary halt to executions, the study team announced during a Frankfort news conference.

Support for the moratorium topped 50 percent in every demographic group, including men, women, Democrats, Republicans and urban and rural residents, according to the poll of 405 likely voters contacted between Nov. 30 and Dec. 4.

It would be up to Gov. Steve Beshear to declare a moratorium on death sentences, said Linda Ewald, a University of Louisville law professor who co-chaired the study team. Beshear issued a statement saying his office will carefully review the 400-plus page report.

"ABA: Kentucky should suspend executions," by AP writer Brett Barrouquere is via the Chicago Tribune.

The American Bar Association on Wednesday recommended that the state indefinitely halt all executions after a study showed a high rate of convictions being reversed, no standard for attorneys handling capital cases and few protections against executing the mentally disabled.

The report, which examined 92 factors in Kentucky's system, was conducted as part of the ABA's Death Penalty Moratorium Implementation Project, which has examined eight other states since 2001. The project calls for a nationwide moratorium on executions while problems are addressed.

The report found that of the 78 people sentenced to death since the death penalty was reinstated in Kentucky in 1976, 50 have had convictions or sentences overturned by state or federal courts -- an error rate of about 64 percent.

It identifies dozens of reforms and says a moratorium would allow the state to make the necessary changes before another execution takes place.

ABA President William Robinson of Florence, Ky., said the main issue is ensuring that an innocent person isn't executed because of a system flaw.

"When a person's life is at stake, the guarantee of fairness and due process are paramount," Robinson said during a press conference at the state capitol in Frankfort.

Team members included two former state Supreme Court justices, law professors and private attorneys.

"It is the Assessment Team's unanimous view that so long as Kentucky imposes the death penalty, it must be reserved for the worst offenders and offenses, ensure heightened due process and minimize risk of executing the innocent," the 438-page report says.

Earlier state assessements and additional information is available at the ABA Moratorium Implementation Project website.  Related posts are in the ABA index.

Judicial Nomination War

Yesterday's vote by GOP senators appears to signal a partisan escalation in the federal judicial nomination process.

"An unworthy filibuster by the Senate on Caitlin Halligan," is the Washington Post editorial.

THE INSIDIOUS USE of judicial nominees as political pawns continued Tuesday with a Republican filibuster of Caitlin J. Halligan.

Voted well-qualified by a unanimous American Bar Association, Ms. Halligan was tapped by President Obama to fill a long-vacant seat on the U.S. Court of Appeals for the D.C. Circuit. She is general counsel for the New York County District Attorney’s Office in Manhattan and has served ably in public posts and private practice; she earned the enthusiastic support of a bipartisan group of legal luminaries, including Miguel A. Estrada, whom President Bush nominated to the D.C. Circuit.

Those who have worked with Ms. Halligan say she is a skilled lawyer with moderate views — a depiction that is at odds with the distorted portrait of her painted by Republicans.

And:

Ms. Halligan’s nomination was blocked for two reasons: to keep a Democratic appointee from joining a bench that is considered a farm team for the Supreme Court; and to avenge the defeat of eminently qualified Republican nominees such as Mr. Estrada. It is a disgrace to the party that Lisa Murkowski of Alaska was the only Republican to endorse an up-or-down vote.

News coverage of the cloture vote begins with the New York Times, "Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee."  It's written by Charlie Savage and Raymond Hernandez.

Senate Republicans on Tuesday blocked confirmation of Caitlin J. Halligan, a prominent New York lawyer, to be a federal appeals court judge, raising the question of whether a political deal to prevent the filibuster of most judicial nominations has broken down.

Democrats failed to pick up the 60 votes needed under Senate rules to break a filibuster of a confirmation vote for Ms. Halligan, a former New York State solicitor general. The vote to break the filibuster was 54 to 45 and was largely along party lines; only one Republican, Senator Lisa Murkowski of Alaska, favored allowing an up-or-down vote on Ms. Halligan, while no Democrats voted against it.

President Obama had nominated Ms. Halligan for one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, which is generally is considered the second-most powerful court in the country because it frequently hears cases involving the federal government.

In a statement shortly after the Senate vote, Mr. Obama expressed disappointment and accused Republicans of undermining the judicial confirmation process for partisan purposes.

“Her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country,” Mr. Obama said. “Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’ The only extraordinary things about Ms. Halligan are her qualifications and her intellect.”

"Judicial Wars Flare As Senate Blocks Obama Nominee," by Nina Totenberg at NPR.

Prior to that Halligan had served as chief of the appellate section of a top-tier law firm. She now is counsel for the Manhattan district attorney. The American Bar Association gave her its highest rating. Democrats said that Republicans had deliberately twisted and mischaracterized her record.

The Judiciary Committee's ranking Republican, Sen. Charles Grassley, was candid about GOP reasons for opposing Halligan, all but conceding that it is payback for Democrats stalling on judicial nominations when George W. Bush was president. Grassley said that six of President Bush's nominees, including now Chief Justice John Roberts, endured "delays, filibusters, multiple hearings, and other forms of obstruction."

Grassley also noted that Halligan is only 44 and that the D.C. Circuit Court has often been a stepping stone to the U.S. Supreme Court.

Tuesday's vote would seem to signal the end of a 2005 agreement between Democrats and Republicans to end the judicial wars in the Senate by barring filibusters except in extraordinary circumstances.

"GOP filibusters judicial nominee," by James Oliphant of the Los Angeles Times Washington Bureau.

The Senate GOP filibustered the nomination of Caitlin Halligan, a New York lawyer who had won praise from some conservatives.

Republicans said they were concerned about Halligan's record on gun rights and terrorism detainee issues. All but one — Alaska's Lisa Murkowski — voted to prevent her nomination from going to the floor for a final vote, where the judge could have been approved by a simple majority. The final tally was 54 to 45, six votes short of the 60 needed to break the filibuster.

It marked the second time this year that Republicans have filibustered a key Obama judicial nominee. They denied Californian Goodwin Liu a seat on the U.S. 9th Circuit Court of Appeals in San Francisco in May. (A few months later, Liu was appointed to the California Supreme Court by Gov. Jerry Brown.)

"Filibuster Tests Senate Agreement on Judicial Nominees," by Humberto Sanchez for Roll Call.

Senate Democrats on Tuesday warned that a GOP-led filibuster of a judicial nominee could threaten future nominees and that the move calls into question a six-year-old bipartisan detente on judicial filibusters.

“I am concerned that today the Senate is backing away from the 2005 agreement that the minority would only block judicial nominees in extraordinary circumstances,” Senate Majority Leader Harry Reid (D-Nev.) said in statement.

On a 54-45 vote, the Senate failed to cut off debate, or invoke cloture, on the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals, falling short of the 60 votes needed to overcome a filibuster.

“Since Ms. Halligan’s nomination clearly does not meet that standard, Republicans today lowered the bar for filibustering judicial nominees,” Reid continued.

"D.C. Circuit Nomination Fails Cloture Test," by Andrew Ramonas for Legal Times BLT.

Obama first nominated Halligan in September 2010, but the Senate Judiciary Committee did not hold a hearing or a vote on her nomination before the Senate adjourned last December. Obama renominated her for the judgeship in January, and the Senate Judiciary Committee in March voted 10-8 along party lines to report her nomination to the full Senate.

The court has three open slots. The first vacancy dates to 2005, when John Roberts Jr. became chief justice of the U.S. Supreme Court. If confirmed, Halligan would fill Roberts’ old seat.

Another vacancy stems from D.C. Circuit Judge A. Raymond Randolph’s decision to take senior status in November 2008. Judge Douglas Ginsburg produced the final open seat when he announced in October that he would become a professor at of New York University School of Law in January.

Finally, commentary from Dahlia Lithwick for Slate, "Punch and Judge Judy."  Here's the beginning of her must-read:

There is nothing funnier than Senate Republicans talking about judges. In the span of three hours today, Republicans went from extolling the sweet incomprehensible mystery of the legal process, to effectuating a rankly political filibuster of a highly qualified nominee to the D.C. Circuit Court of Appeals. At a hearing this morning about putting cameras into the Supreme Court, we heard high-minded GOP talk of de-politicizing the judicial branch and the impropriety of reducing whole cases to “snippets.” Within minutes, 54 Republicans had voted to deny cloture to Obama’s nominee, Caitlin Halligan, based on snippets of her writing and a partisan campaign to demonize her.

Halligan’s qualifications are not an issue. She clerked at the Supreme Court and then served for six years as New York State’s solicitor general. Halligan was endorsed by Supreme Court experts across the spectrum. She was nominated in September of 2009 to the federal appeals court, and reported out of committee last March. She was filibustered today by a long list of GOP senators—including members of the Gang of 14 that once agreed to avoid filibusters of judicial nominees except under what they termed “extraordinary circumstances.”

There were no extraordinary circumstances here. There were, in fact, no circumstances at all. Instead of scrutinizing Halligan’s qualifications, Senate Republicans went after her for some of her work as solicitor general of New York. She wrote a nuanced 17-page brief arguing that "the Legislature did not intend to authorize same-sex marriage." In the hands of GOP opponents, a single line from that opinion became evidence of “a record of advocating extreme liberal positions on constitutional issues.”

This is particularly astounding in light of the Republican rhetoric at this morning’s subcommittee hearing about televising Supreme Court proceedings. When Judge Anthony Scirica of the Third Circuit Court of Appeals started talking about the ways television allows for “snippets” of oral argument to be broadcast out of context, the Republicans were horrified. Oh no, not snippets! (“Snippets” is the judicial term of art for what would happen if Stephen Colbert got hold of videotapes of oral arguments.) All morning we were treated to the loftiest explications of how legal thinking is far too complicated for Americans to consume without their brains imploding from the effort. (In 1989 Justice Scalia explained, “That is why the University of Chicago Law Review is not sold at the 7-Eleven.”)

Earlier coverage of federal judicial nominations begins at the link.  Related posts are in the judiciary and politics indexes.

The Florida Symposium

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Florida

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The State of Criminal Justice in the States

"State budget cuts clog criminal justice system," a major examination by the Associated Press.  It's written by Greg Bluestein, with additional reporting from aul Elias in San Francisco, Mike Glover in Iowa, and Bob Johnson in Alabama.  It's also available from the Bloomington Pantograph and Huffington Post.  Here are two excerpts from the article:

Prosecutors are forced to ignore misdemeanor violations to pursue more serious crimes. Judges are delaying trials to cope with layoffs and strained staffing levels. And in some cases, those charged with violent crimes, even murder, are set free because caseloads are too heavy to ensure they receive a speedy trial.

Deep budget cuts to courts, public defenders, district attorney's and attorney general offices are testing the criminal justice system across the country. In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake.

Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years. At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.

The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases.

"It's extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice," said Scott Burns of the National District Attorneys Association. "And they're rewarded with terminations, furloughs and cuts in pay."

The ripple effects have spread far beyond criminal cases to even the most mundane court tasks, such as traffic violations and child custody petitions. The wait to process an uncontested divorce in San Francisco, for example, is expected to double to six months as the system struggles to absorb state budget cuts that have led to layoffs of 40 percent of the court's work force and the closing of 25 of 63 courtrooms.

And:

Public defenders, whose offices also are absorbing cuts, are taking more clients.

"If you don't have enough lawyers to handle the cases, it leaves them open to speedy-trial challenges and ineffective assistance of counsel," said Ed Burnette, a vice president of the National Legal Aid & Defender Association.

Some of the lapses are testing speedy-trial rules, in some cases resulting in dismissals that otherwise are hard to win. In Georgia, trial and appellate courts have dismissed a handful of indictments against suspects accused of violent crimes because they could not be brought to trial fast enough.

In one case, a judge tossed out murder charges against two Atlanta men because it took Fulton County prosecutors four years to indict them after they were arrested and charged with a 2005 shooting. Local prosecutors say strained resources were partly to blame for the delay.

Legal agencies that represent the poor and depend on government grants also have been hit hard.

State funding for the Georgia Resource Center, which represents indigent death penalty defendants in post-conviction proceedings, has fallen by about $250,000 over three years. This year, the center fell short on a $300,000 grant from a foundation, forcing layoffs of a paralegal and an assistant administrator and the reduction to part-time status of a staff attorney.

"We've been running on a shoestring for years and we are minimally available to take care of all the guys on death row," said Brian Kammer, the center's executive director, who said he is writing grant applications at the same time he is representing death row inmates. "But with this kind of funding loss, we're getting crippled."

Related posts are in the cost, indigent defense, and state legislation indexes.

ABA President Speaks Out on the Troy Davis Case

American Bar Association President William T. (Bill) Robinson has released the following, "Statement on Denial of Clemency for Troy Davis."

Protection of the innocent is one of the legal profession’s most serious obligations.  That obligation has life-and-death consequences when the death penalty is at issue.

The American Bar Association previously urged the Georgia Board of Pardons and Paroles to grant clemency to Troy Davis, in part because the ABA has identified serious, longstanding concerns with the fair administration of Georgia’s death penalty.  Many of these problems were present at the time of the investigation and prosecution of Mr. Davis’ case, and persisted through every stage of appeal.  Serious doubts about Mr. Davis’ guilt and the fairness of his trial have also been raised by many national and international organizations and individuals.  Deciding not to execute Mr. Davis will serve justice by reaffirming that the justice system does not utilize the death penalty for anyone whose guilt is reasonably in question.

The ABA has no position for or against the death penalty itself.  But the association’s decades of work, its policies and the commitment to justice by all its members strongly indicate that Mr. Davis’ execution should not be carried out.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Christian Science Monitor posts, "Did Troy Davis death-penalty case expose flaws in 'executive clemency'?"  It's written by Patrik Jonsson and raises issues at play in a handful of cases.

Unreliable eyewitnesses, the impact of race on a jury in the Deep South, the difficulty of proving innocence once convicted: Troy Davis's long journey through the US judicial system has hit nearly every sensitive button in America's complex relationship with the death penalty.

On Tuesday, the Georgia Board of Pardons and Paroles declined a final clemency bid by Mr. Davis, 42, who has spent 20 years on death row for the murder of an off-duty Savannah, Ga., police officer in 1989. The board reaffirmed the validity of the original conviction by a jury of his peers. His execution by lethal injection is scheduled for 7 p.m. Wednesday.

But to many legal experts, doubts raised about Davis's guilt after his conviction raise new questions about the Supreme Court's determination that so-called "executive clemency" – the power of a governor or review board to commute a death row sentence – is an adequate fail-safe for assessing death-row innocence claims.

"If a case like this doesn't result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate," says James Acker, a criminologist at SUNY-Albany. "The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed."

And:

In 1993, the US Supreme Court ruled in Herrera v. Collins that an individual’s provable innocence isn't, by constitutional standards, enough for courts to grant a new trial. The ruling put the onus on discretionary state-by-state executive clemency procedures – whether by extrajudicial boards or governors – as the "fail-safe."

"I really think that the decision made in Georgia puts the assumption that executive clemency is a fail-safe in so much doubt that it ought to stimulate the legal system … to revise, reform, revisit the formal legal process that results in convictions and allows sentences of death," says SUNY-Albany’s Mr. Acker. "In this case, the clemency process has failed."

The Georgia parole board noted that it has commuted three death sentences since 2000, and said in a statement that its five members "considered the totality of the evidence" and that members "have not taken their responsibility lightly."

I'll have a roundup of news and commentary on the Troy Davis case tomorrow.  Earlier coverage of his case begins at the link.  Related posts are in the clemency index.

Ohio to Conduct Death Penalty Study

Ohio Supreme Court Presiding Judge Maureen O'Connor made the announcement in her State of the Judiciary address.  Here's the excerpt that deals with the review:

Finally, there is work to be done on the death penalty.

If we are to support trust and confidence in the judicial system, there is arguably no issue more important than ensuring that justice is served when the state imposes the ultimate form of punishment.

That’s why I am announcing today that the Supreme Court of Ohio and the Ohio State Bar Association are forming a Joint Task Force to Review the Administration of Ohio’s Death Penalty.

The impetus for the formation of this Joint Task Force is a desire on the part of the Court and the Ohio State Bar to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.

Examination of the process by a broad-based task force of judges, prosecuting attorneys, criminal defense counsel, legislative leaders, and academics is appropriate to determine if the criteria, laws, and procedures regarding the imposition of the death penalty in Ohio are in need of attention. Is the system we have the best we can do? Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis.

It should be made perfectly clear that the exercise to be undertaken is in no way a judgment on whether Ohio should or should not have the death penalty. This will not be in the charge to the Joint Task Force. The Task Force will examine the current laws on the subject, the practices in other jurisdictions, the data, costs, etc.  It will review the ABA death Penalty Report and identify areas in need of action and recommend the course of action.

We anticipate a Joint Task Force of approximately 20 members with diverse backgrounds in the criminal justice system, with expertise and experience in death penalty prosecution, defense, adjudication, and scholarship. The Joint Task Force will be chaired by Retired Judge James A. Brogan of the Second District Court of Appeals.

From the death penalty to judicial selection reform to supporting diversity on the bench and bar, there is much we can do together to support continued progress in our court system. It is imperative that we renew our efforts to demonstrate the value and necessity of strong courts during this time of change, transition and economic challenge.

And it is imperative, if we are to succeed, that we undertake these efforts in collaboration.

Today's Bucyrus Telegraph Forum carries the AP report, "Ohio judge calls for death penalty review," written by Andrew Welsh-Huggins.

Ohio's top judge on Thursday announced a committee will review the state's death penalty law and determine if changes should be made, but with an important caveat: It won't debate whether Ohio should have capital punishment.

The review, 30 years after Ohio enacted its most recent death penalty law, will make sure the current system is administered fairly, efficiently and in the most "judicious manner possible," said Ohio Supreme Court Chief Justice Maureen O'Connor.

"Is the system we have the best we can do?" said O'Connor, a Republican and a former prosecutor. "Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis."

The 20-member committee, convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts.

And:

Justice Paul Pfeifer, a Republican from Bucyrus, has called for such a review for years. In January, he made even stronger comments, saying the state should abolish capital punishment.

Pfeifer, who helped write the 1981 law as a state senator, has said for years he believes prosecutors were seeking the death penalty in cases such as domestic violence slayings that the law wasn't meant for.

Pfeifer said Thursday he was glad to hear O'Connor's announcement but had no further comment.

The Houston Chronicle carries an expanded version of the AP report.

Instead, it will review Ohio's current laws, practices elsewhere, data and costs. It will also review a 2007 report released by the American Bar Association that called for a moratorium while problems the report said it had identified were examined.

That report didn't go far because of the perception that several of the researchers were biased against the death penalty.

Phyllis Crocker, who chaired the ABA report on the Ohio law, said Thursday she was pleased with O'Connor's announcement.

"A thorough examination of our state's death penalty system was one of the goals of the 2007 ABA Death Penalty Report," Crocker, interim dean of the Cleveland-Marshall College of Law at Cleveland State, said in an email.

A 2005 review of 20 years of capital punishment data by The Associated Press concluded that death sentences varied widely depending on where in the state charges were brought. The AP review also found people convicted of killing a white victim were twice as likely to receive a death sentence as those whose victim was black.

"Chief justice plans review of Ohio’s death penalty," is by David Eggert for the Columbus Dispatch.

“Is the system we have the best we can do?” Chief Justice Maureen O’Connor asked in her first State of the Judiciary address, in which she announced the creation of a joint task force to examine the issue.

“Convening persons with broad experience on this subject will produce a fair, impartial and balanced analysis,” she told more than 300 judges at the Hilton Hotel on Polaris Parkway.

She stressed that the panel — to be created by the high court and Ohio State Bar Association — will not study whether Ohio should have the death penalty, saying that is a decision for lawmakers.

Since reinstituting the death penalty in 1999, Ohio has executed 45 people.

A 2007 report by the American Bar Association found a host of problems with the state’s death penalty, including wrongful convictions, inadequate resources for defendants and their lawyers, and geographic and racial disparities, plus little effort by the state Supreme Court to ensure it is imposed proportionately.

The Reuters filing is, "Ohio justices, lawyer task force to study death penalty," by Jim Leckrone.  It's via WHTC-AM.

Ohio's top court and state bar association will form a joint task force to review the administration of the state's death penalty, the chief justice of the Ohio Supreme Court said on Thursday.

The task force will not address whether Ohio should or should not have a death penalty, Chief Justice Maureen O'Connor said in a speech at a two-day conference for state judges.

In July, a federal judge issued a stay of execution for one Ohio inmate, calling the state's application of death penalty practices haphazard.

Ohio Governor John Kasich, who had bcommuted another death row inmate's sentence to life in June, delayed another execution as a result of the judge's ruling.

The task force is intended to "ensure that Ohio's death penalty is administered in the most fair, efficient, and judicious manner possible," O'Connor said in her address.

Richard Dieter, executive director of the Death Penalty Information Center, said it was "commendable" that Ohio was reviewing the process for fairness and accuracy.

The latest coverage from Ohio relates to the state's current moratorium due to lethal injection issues.  There are also links available to coverage of former Chief Justice Pfeifer's call for repeal and the 2007 ABA report detailing problems with the state's administration of capital punishment.

The complete ABA Moratorium Implementation Project's Ohio Assessment report is available via the ABA.

ABA Death Penalty Representation Project Turns 25

The American Bar Association's Death Penalty Representation Project will hold its annual event in Washington DC, next month

25th Anniversary & Volunteer Recognition Event
September 14, 2011 | Washington, DC

Honored Guests & Awardees

Justice John Paul Stevens (Ret.)
The Project will honor Justice Stevens' lifetime of work and unwavering dedication to the principle of equal justice for all.

Read Justice Stevens' recent article in the New York Review of Books, "On the Death Sentence."

Death Row Exoneree Anthony Graves
Anthony Graves spent 18 years on death row for a crime he did not commit before being exonerated and released late last year.  Read a detailed account of his fight for freedom, as reported in Texas Monthly.

Congratulations to our 2011 Exceptional Service Award winners!
Arnold & Porter LLP
Dorsey & Whitney LLP
Fredrikson & Byron, P.A.

 
Event Details:
September 14, 2011
6:00 p.m. - 8:00 p.m.

Decatur House
Lafayette Square
1610 H Street NW
Washington, DC

Space is limited, and tickets must be purchased by September 12, 2011
Individual tickets: $100
Sponsorship packages are also available!
To purchase tickets / additional information:

The ABA created the Death Penalty Representation Project in 1986 to help ensure that every person facing a possible death sentence receives a fair trial and has the assistance of a good lawyer.

During the last 25 years the Project has raised awareness about the lack of representation available to death row prisoners, addressed this urgent need by recruiting and training volunteer attorneys, and implemented systemic changes to capital counsel systems. The Project has recruited the country’s top law firms to work on hundreds of pro bono death penalty cases. Our volunteers have contributed skills, more than one million pro bono hours, and many hundreds of thousands of dollars to this cause. They have also saved the lives of countless men and women.

The Project’s annual event celebrates volunteer death penalty attorneys who represent death-sentenced prisoners. Firms and individual volunteers are nominated for exceptional service and honored with our award. Prior award winners include Covington & Burling LLP, Drinker Biddle & Reath LLP, Jenner & Block LLP, Sidley Austin LLP, Skadden, Arps, Slate, Meagher & Flom LLP, and WilmerHale LLP. A full list of previous award honorees can be found here. Past speakers include Anthony Amsterdam, Wilbert Rideau, CraigWatkins, Steven Bright, Ray Krone, and others.

Last year's event was held in Houston.

More Commentary on the Justin Wolfe Case

Today's Virginian Pilot carries the editorial, "Weeks from death, on faulty evidence."

Last month, a federal appeals judge found the tactics used by Virginia prosecutors in a 2002 murder trial so egregious that he overturned the murder conviction and death sentence - a rare order in a state that has executed more inmates than any other except Texas.

After a hearing on the evidence, U.S. District Judge Raymond A. Jackson of Norfolk found 12 violations in the murder-for-hire trial of Justin Michael Wolfe in Prince William County. Among them: Prosecutors withheld from the defense pieces of evidence, notes, reports of police interviews and recordings of interviews with witnesses that would have helped Wolfe. Prosecutors also knowingly presented false evidence at trial, the judge found.

"The Court," Jackson wrote, "finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process."

The state must decide this month whether to appeal. Based on the number of substantial errors in the case, Attorney General Ken Cuccinelli should decline.

The prosecution's conduct, brought to light during the recent hearing, should scare all of us. A Virginia man came close to being killed for a crime he didn't commit.

Prosecutors, the American Bar Association says, have a duty to seek justice, not merely to convict. They have an obligation to ensure there's sufficient evidence to proceed in criminal court. They're obligated to tell defense lawyers when they find evidence that helps their client.

In this case, only a judge's diligence in ordering a new hearing on the evidence allowed the public to see what led to the wrong man on death row.

And:

If Virginia is going to continue sentencing defendants to die, it must ensure that the trials are fair, that convictions are obtained after a thorough airing of the evidence, and that the person sent to the death chamber is actually guilty.

"A deserved rebuke in Prince William murder case," is the Washington Post editorial.  It appeared July 28.

Judge Jackson noted that Mr. Ebert and his office withheld from the defense information about others who may have had motive to target the victim. Mr. Ebert and his colleagues also brought together prosecution witnesses and allowed them to smooth over inconsistencies in their testimony. The prosecutors failed on multiple occasions to live up to their obligations to disclose to the defense that government witnesses had contradicted each other or had changed their stories.

These failures were discovered only after Mr. Wolfe’s lawyers from King & Spalding, the University of Virginia’s Innocence Project Clinic and the Virginia Capital Representation Resources Center persuaded a court to force Mr. Ebert and his office to turn over all of their files.

The actions by Mr. Ebert and his office were so egregious that Judge Jackson threw out the murder conviction and death sentence against Mr. Wolfe. And he concluded that Mr. Ebert and a top deputy, Richard A. Conway, violated Virginia legal ethics rules that require prosecutors to “make timely disclosure” of evidence “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”

During a hearing before Judge Jackson, Mr. Ebert was asked why his office did not have open-file discovery, which requires prosecutors to turn over to the defense all of the evidence gathered during an investigation. “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,” Mr. Ebert responded.

Fabricate? The judge in this instance rightly took Mr. Ebert to task. “Essentially, in an effort to ensure that no defense would be ‘fabricated,’ [Mr. Ebert and Mr. Conway’s] actions served to deprive [Mr. Wolfe] of any substantive defense in a case where his life would rest on the jury’s verdict,” Judge Jackson wrote. “The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Virginia State Bar, which polices lawyers in the state, should determine whether Mr. Ebert and Mr. Conway committed violations that require disciplinary action.

Earlier coverage of the Justin Wolfe case begins at the link.  Related posts are in the prosecutorial misconduct index.

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

EJI Report on Judicial Override in Death Sentencing

Alabama's Equal Justice Initiative has released the report, The Death Penalty in Alabama: Judge Override.  EJI has issued a news release and key findings.  They will appear after a link to Adam Liptak's latest Sidebar column.

"When Judges Override Juries, Death Is Often the Sentence," is the title of Liptaks column, which will appear in tomorrow's print edition of the New York Times.  It's just been posted on the Times website.

Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution.

“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”

Judge McRae, chatting on the phone the other day, recalled having breakfast with Justice Thurgood Marshall at an American Bar Association meeting not long after the Supreme Court reinstated the death penalty in 1976.

Justice Marshall was a fierce opponent of the death penalty. But, according to Judge McRae, the justice also saw the wisdom of the override system. “He thought it was better that someone who had seen more than one case was making the decision,” Judge McCrae said.

What Justice Marshall probably did not anticipate, though, was that judges in Alabama would not use their power for mercy — that they would, in fact, be even tougher than juries. Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence.

Indeed, more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas

Judge McRae himself ordered six defendants executed notwithstanding jury verdicts calling for life sentences, more than any other judge in Alabama in the modern history of capital punishment. But he never rejected a jury’s recommendation of death.

And:

Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and there is no one on death row in Delaware as a consequence of an override. The most recent override in favor of death in Alabama was in March.

Judges in Delaware are appointed, and they generally use their authority to reject death sentences. Alabama judges are elected, often running on tough-on-crime platforms. Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system. Much has changed in sentencing law since then, and it is not clear that the system would survive a fresh look from the Supreme Court.

One thing that is clear is that Justice Marshall, whatever he said at breakfast, was appalled by how things turned out in Alabama. “It approaches the most literal sense of the word ‘arbitrary,’ ” he wrote in a 1988 dissent, “to put one to death in the face of a contrary jury determination where it is accepted that the jury had indeed responsibly carried out its task.”

The EJI news release is titled, "New EJI Report Finds Arbitrary, Biased, and Unreliable Death Sentencing When Alabama Judges Override Jury Verdicts of Life."

Allowing elected trial judges in Alabama to override jury verdicts of life in capital cases and impose the death penalty has resulted in some of the most arbitrary and unreliable death sentencing in the United States according to a new study by EJI. A new report released today by EJI reveals that - unlike in any other state - elected Alabama judges overwhelmingly use their virtually unrestricted override power to impose death in cases where death-qualified Alabama juries have returned verdicts for life imprisonment without parole.

Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 107 times. Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country. Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.

Override is legal in only three states: Alabama, Delaware, and Florida. Florida and Delaware have strict standards for override. No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999. In Delaware and Florida, override often is used to overrule jury death verdicts and impose life - which rarely happens in Alabama.

Alabama’s trial and appellate court judges are elected. Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment, political pressure injects unfairness and arbitrariness into override decisions.

Override rates fluctuate wildly from year to year. The proportion of death sentences imposed by override often is elevated in election years. In 2008, 30% of new death sentences were imposed by judge override, compared to 7% in 1997, a non-election year. In some years, half of all death sentences imposed in Alabama have been the result of override.

There is evidence that elected judges override jury life verdicts in cases involving white victims much more frequently than in cases involving victims who are black. Seventy-five percent of all death sentences imposed by override involve white victims, even though less than 35% of all homicide victims in Alabama are white.

Some sentencing orders in cases where judges have overridden jury verdicts make reference to the race of the offender and reveal illegal bias and race-consciousness. In one case, the judge explained that he previously had sentenced three black defendants to death so he decided to override the jury’s life verdict for a white defendant to balance out his sentencing record.

Some judges in Montgomery and Mobile Counties persistently reject jury life verdicts to impose death. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have overruled 11 life verdicts to impose death. Former Montgomery County Judge Randall Thomas overrode five jury life verdicts to impose the death penalty.

There are considerably fewer obstacles to obtaining a jury verdict of death in Alabama because, unlike in most states with the death penalty, prosecutors in Alabama are not required to obtain a unanimous jury verdict; they can obtain a death verdict with only ten juror votes for death. Capital juries in Alabama already are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.

No capital sentencing procedure in the United States has come under more criticism as unreliable, unpredictable, and arbitrary than the unique Alabama practice of permitting elected trial judges to override jury verdicts of life and impose death sentences.

EJI also provides a summary of key findings from the report:

•    Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override.

•    Ninety-two percent of overrides involve elected judges overruling jury verdicts of life sentences to impose death sentences (even though judges also have the authority to override death and impose life).

•    Politics play a role. Sentencing determinations and override decisions are extremely vulnerable to political factors. In 2008, 30% of the death sentences imposed in the state were the result of judge override, compared to 7% in 1997, a non-election year.

•    Race bias is a factor. Judges in Alabama override life verdicts in cases involving white victims far more frequently than in cases involving black victims. Even though less than 35% of all homicide victims in Alabama are white, 75% of all death sentences imposed by override involve white victims.

•    Geography matters. Only three of Alabama’s 67 counties account for nearly half of the life-to-death overrides statewide.

•    More than one-third of override cases have been reversed because of error. Of the 93 people sentenced to death through judicial override in Alabama, 37% left death row after their convictions or sentences were reversed.

•    Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Two other states – Delaware and Florida – permit the practice but have strict standards regulating its use. No one is on Delaware’s death row as a result of override and no death sentences have been imposed by override in Florida since 1999.

In ruling the death penalty unconstitutional in 1972, the United States Supreme Court declared that the ultimate punishment was meted out with such arbitrariness it was akin to being struck by lightning. Nearly forty years later, these grave concerns remain about the capital punishment system in states across the country, and especially so in Alabama.

The Equal Justice Initiative report provides powerful and convincing evidence that judge override has dramatically worsened the arbitrary, unfair and unreliable application of the death penalty in Alabama.

Related posts are in the race and report indexes.  In Florida, a federal judge ruled that state's sentencing scheme unconstitutional, last month; coverage begins at the link.

The High Price of Life

That's the title of one article in the current issue of American Lawyer containing the Pro Bono Report 2010.  The article is written by Drew Combs.  LINK

In July 2008 Nixon Peabody signed on to its first pro bono death penalty case ever, representing Thomas Porter, a Virginia man convicted of killing a police officer. And like nearly all capital cases, this one is a heavy lift. It started with a nine-month investigation that included document requests to schools and hospitals and interviews with jurors, court officers, family members, former teachers, and fellow inmates.

"These were not situations where you could just Google someone and get an address," says Brian French, a Boston-based Nixon Peabody partner who is working on the case. "It requires a lot of going to the streets and knocking on doors." Last August the firm and its cocounsel, the Virginia Capital Representation Resource Center, filed a 60-page habeas petition with the state supreme court based in part on ineffective assistance of counsel and juror bias.

This sort of case--the multitiered, years-long postconviction death penalty appeal--has long been a pro bono staple at many Am Law 200 firms. In a flash survey conducted by The American Lawyer in May, 77 of the 121 respondent firms said they were handling at least one pro bono capital case. Fourteen firms, including Nixon Peabody, said that death penalty work accounted for their biggest expenditure of pro bono hours in 2009. (Last year Nixon took on a second capital case, in Louisiana.)

It's the timing that makes Nixon's dive into the expensive world of death penalty work noteworthy, occurring as the recession has forced firms to take a hard look at costs. French says that Nixon Peabody, where revenue per lawyer fell 7.1 percent last year, knew that the downturn might create challenges but steamed ahead because "it is a real important issue for the firm when you have inadequate processes and counsel that are not up to the task."

Just how much it costs to represent a death row defendant during a postconviction review process depends on many variables, but it's not cheap. "We ask a lot of our volunteers," says Robin Maher, head of the American Bar Association's Death Penalty Representation Project. "We ask them to donate a number of hours, sometimes over many years, to learn an area of the law they are not familiar with, and to represent someone in a far-off state."

So far, she says, Am Law 200 firms have remained committed to their current pro bono dockets. "None of the law firms we've recruited have called us to say they won't work on their cases anymore, despite the downturn in the economy and financial problems many firms are facing," Maher says. But merely maintaining the status quo may not be sufficient, as the demand for big-firm counsel jumps: "All of the problems caused by the poor economy have landed in the [public] defender community, and that is why requests for pro bono assistance have skyrocketed."

And:

At Chicago's Schiff Hardin, which is also handling three death penalty matters, managing partner Ronald Safer says that "I gulp every time before I agree to take a case because of the resources that must be devoted." Safer estimates that one matter that recently went to the Georgia Supreme Court cost the firm more than $800,000 in lawyer time and out-of-pocket expenses. Over the past five years, Safer says, Schiff Hardin has spent more than $7 million in attorney time and additional expenses on capital cases. Nonetheless, both Crowell and Schiff Hardin say they remain committed to doing death penalty work.

One of The Am Law 200's largest docket of capital cases is at Sidley Austin, which is currently representing 19 death row inmates in Alabama. (At one point, Sidley had 21, but the firm was fired by one client, and another client died of natural causes on death row.) The firm's heavy caseload can be traced back to a plea to Chicago firms by the ABA and federal judges in 2005. Sidley created a staff attorney position specifically to coordinate its death penalty effort. Kelly Huggins, a former associate at Sidley who holds the position, estimates that the docket costs the firm more than $1 million a year in attorney hours and expenses. Since 2005, she says, the firm has spent more than $2 million on such out-of-pocket expenses as expert witnesses, investigators, and travel.

And:

In Alabama part of the void has been picked up by Reed Smith, which in 2008 teamed with the Southern Center for Human Rights to represent four death row inmates. Three of the defendants were weeks away from the deadline to file postconviction petitions. "The Southern Center for Human Rights convinced me that Alabama's weird processes have created a large population of death row inmates that need lawyers," says Reed Smith senior pro bono counsel Christopher Walters. He pointed to the fact that the state does not provide funding for attorneys during the postconviction process and allows judges to supplant a jury majority's life-in-prison sentence with a death sentence.

Related posts are in the pro bono index.

Innocence Now

That's the title of an editorial in the Sunday edition of the Tallahassee Democrat urging the creation of a Florida Innocence Commission.  It's subtitled, "Integrity of justice system is at stake."

Florida's judicial system and its taxpayers will both have something to applaud if Supreme Court Chief Justice Peggy Quince orders creation of the much-needed Florida Innocence Commission, and if Gov. Charlie Crist signs off on a small appropriation to get it running. Both need to do their part right away.

Incoming Senate President Mike Haridopolos, R-Melbourne, moved through the $200,000 earmark this past session, and argued the merits of this approach, which other states use to help law enforcement agencies, prosecutors and public defenders avoid mistakes that lead to wrongful prosecution and incarceration.

Such errors are beyond terrible for those who spend years in prison because of mistaken eyewitness identification, false confessions, poorly handled evidence or police procedures, inadequate jury instructions or, more recently, DNA tests that prove the individual didn't commit the crime for which he or she was incarcerated.

In recent years, at least 11 innocent Florida citizens have been wrongfully convicted and imprisoned; nationwide, some 248 inmates were exonerated by DNA evidence.

And:

Former Florida State University president and onetime president of the American Bar Association Sandy D'Alemberte has led the way in promoting the "Florida Actual Innocence Commission." Its establishment is consistent with recommendations from the ABA's Florida Death Penalty Assessment Team Report of 2006 and is supported the Center for the Advancement of Human Rights at the FSU College of Law.

It is important to note that this kind of commission looks not just at death-penalty cases, but any case in which wrongful prosecution may have occurred. Nor is it intended to oppose capital punishment as such; the work of this commission is to make sure that the system doesn't commit errors or invoke punishment — from prison to death — on the innocent.

It's time to move. Governor, approve the earmark. Justice Quince, appoint the commission of prosecutors, defense attorneys, judges, law-enforcement personnel, legal scholars, legislators and victims advocates to modernize and enhance the integrity of Florida's system of justice.

Earlier coverage of the proposal begins with this post.

Birmingham News Urges Moratorium in Alabama

The Birmingham News carried the editorial, "Alabama lawmakers should finally pass a measure to call a temporary halt to executions," in Monday's edition.

Unless state Sen. Hank Sanders has a change of heart, this regular session of the Legislature will be his last.

If so, this is probably his last shot to pass one of his perennial legislative proposals: a moratorium on the death penalty.

But sending Sanders off to retirement on a happy note isn't the reason lawmakers need to impose a three-year timeout on executions. Lawmakers need to pass this bill because it's the right thing to do.

The moratorium would give the state an opportunity to accomplish the most serious of tasks: ensuring death sentences are carried out fairly, reliably, lawfully and accurately.

The measure would, among other things, require the state to address obvious racial disparities in handing out death sentences. It would require the state to meet the American Bar Association's guidelines for appointing defense lawyers in death penalty cases. It would require the state to bring its laws in line with U.S. Supreme Court decisions barring the execution of people with mental retardation and people who committed death penalty offenses before they were legal adults.

In short, it would do exactly what needs to be done if the state of Alabama insists on continuing to inflict a sentence that can't be undone.

As it stands, death sentences here are imposed in an unfair, arbitrary manner, with race playing an apparent role in who lives and who dies. Inadequate measures are in place to ensure the accused get a vigorous legal defense or that the defendant will have a lawyer at all as the case proceeds through the appeals process.

Alabama is also the only state in the country where elected judges are allowed to impose death sentences when a jury of regular people concludes the ultimate punishment is not appropriate. But fixing that involves another bill -- another Sanders perennial we'd like to see passed.

And:

Lawmakers need to pass the moratorium -- not as a nod to Sanders, but as a nod to justice.

Earlier coverage from Alabama is here and here.

Commentary From Florida

"Wrongful ways: Innocence commissions safeguard society," is the title of a Sunday Tallahassee Democrat editorial.  

Last year, the Florida Legislature passed a law that automatically grants former inmates who have been found innocent $50,000 for each year they were wrongfully incarcerated, so long as they were never convicted of a prior felony offense. It's the state's automatic apology, of sorts, for when the judicial system has gravely erred.

In recent years, at least 11 innocent Florida citizens have been wrongfully convicted and imprisoned. Nationwide, some 248 inmates have been exonerated by DNA evidence that showed their innocence.

Last week in Bartow, James Bain joined the list of the newly liberated, wrongfully punished, and he appears to be entitled to $1.75 million from the state of Florida as a result.

So much? Yes. He was released after 35 years for a crime it's now proven through DNA testing that he didn't commit. Such testing didn't exist in 1974, but his conviction was based primarily on the eyewitness identification of a 9-year-old Polk County boy. Today, it's known that witness misidentification is the leading cause of wrongful convictions. According to the Innocence Project of Florida Inc., it has contributed to almost 80 percent of those 248 overturned by DNA testing.

Florida Supreme Court Chief Justice Peggy Quince was formally asked this month to set into motion a system that would identify and understand in an orderly and ongoing way what goes wrong with the criminal justice process in such cases, what patterns keep repeating, what flaws in the system could and must be remedied.

Former American Bar Association president and Florida State University president emeritus Sandy D'Alemberte is leading the way. This month, he petitioned the state's high court to adopt a rule establishing the Florida Actual Innocence Commission. Such a panel would be consistent with the top recommendation in the ABA Florida Death Penalty Assessment Team Report of 2006, but it would apply to all wrongful-conviction cases, not simply to death penalty cases.

And:

Such a commission would give greater integrity to a system that may not err often, but when it does, does so in a stunning and shameful way.Creation of this proposed Florida Actual Innocence Commission is one way to modernize and enhance the integrity of our system of justice. We urge Justice Quince to grant this petition.

Earlier coverage of the D'Alemberte petition is here.

Also from Florida, the Palm Beach Post carries Randy Schultz' column, "Kill the death penalty."  He's the Post's editorial page editor.

Even if Florida gets smarter on crime, will Florida get smart enough to abolish the death penalty?

Business groups have joined the departments of Corrections, Juvenile Justice and Children and Families in calling for major changes in how Florida administers criminal justice. They want more rehabilitation behind bars and more support for newly released inmates. They want diversion programs for addicts who commit crimes because of their dependency. They want prison reserved for the dangerous, not the annoying.

All of it makes sense, so it may be lost on a Legislature that slurps up federal stimulus money while denouncing the federal stimulus program. Landmark reform, too, would mean touching the untouchable issue of capital punishment.

And:

Every objective study shows that life imprisonment costs much less than sentencing someone to death, because of the costs for lawyers who handle specialized, complex death penalty appeals. To Jeb Bush, the answer was to limit the number of years during which an inmate could appeal. The Florida Supreme Court shot him down. Good thing. Under Mr. Bush's 10-year limit, Florida would have killed people before they could be exonerated.

It's one thing to say that Danny Rolling, sadistic slayer of five college students in the Gainesville area 19 years ago, should be executed. There was no question of guilt, and no messy questions of racial fairness. As the Death Penalty Information Center notes, though, 80 percent of victims in cases where the killer was executed were white. Nationally, only 50 percent of murder victims are white.

Deterrence? Police chiefs don't consider the death penalty a deterrent. And the South, which has the highest rate of execution, also has the highest murder rate.

Politically, though, capital punishment retains its visceral, eye-for-an-eye appeal. Thirty-five states still have it on the books, down from 38 at the start of this decade. It's hard to be smart about something that many people can't think clearly about.

D’Alemberte Petitions for Innocence Commission in Florida

That's the title of a Florida News Service report from the Monday edition of the Jacksonville Observer.  LINK

Former American Bar Association President and prominent Tallahassee lawyer Sandy D’Alemberte filed a petition with the Florida Supreme Court Friday asking it to establish a commission to investigate how wrongful convictions occur.

D’Alemberte, a former Florida State University President who still teaches at the law school, wants the high court to establish have the panel examine cases where people were wrongfully accused and convicted to see what goes wrong in those cases and how the state can improve.

The system, he said, unfortunately fails and sometimes the wrong people get sent to prison.

“They also leave guilty people out on the streets and we destroy families,” he said.

His ideal commission is modeled after one that was established in North Carolina in 2002. The North Carolina commission includes judges, representatives of the Governor’s office, defense attorneys, law enforcement representatives, prosecutors, law professors and victim advocates. It also included a journalism professor and two general interest representatives.

In addition to North Carolina, California, Connecticut, Illinois, New York, Pennsylvania, Texas and Wisconsin also have similar commissions.

But even if the court does like the idea, he could run into a money issue. Funding for the court system, provided mostly by the state Legislature, has been low in recent years, meaning layoffs and cuts throughout the system as a whole. Finding money to establish a commission could be tricky.

“I guess my answer is a question,” D’Alemberte said. “Can we afford to neglect the idea that we’re convicting innocent people? Because, it’s a pretty expensive process to go through these wrongful convictions.”

Florida, like other states, has had high profile cases where people were wrongfully convicted of serious crimes.

Juan Melendez, a Puerto Rican immigrant, has been crisscrossing the country since 2002 after he was freed from a Florida prison where he spent 17 years, serving a sentence for a murder he didn’t commit. He was in Tallahassee in September for a forum at Florida State Law School talking up an ABA report suggesting ways to address wrongful convictions – particularly in death penalty cases –- in Florida. One of the suggestions was the establishment of a commission to investigate wrongful convictions.

"Petition calls for creation of Florida innocence review board," is the title of John Frank's report for the Miami Herald.

Former Florida State University president Talbot ``Sandy'' D'Alemberte filed a petition with the state Supreme Court on Friday asking for a commission to investigate wrongful convictions.

``I think it's just strange to see all the recent exonerations and not try to learn something about the mistakes we've been making,'' said D'Alemberte, who also is a former state lawmaker and former president of the American Bar Association.

The 18-page petition, signed by nearly 70 lawyers including some former state Supreme Court justices, calls for creating the Florida Actual Innocence Commission modeled off a system in North Carolina by the same name.

Such an idea is not new, but D'Alemberte cites the recent cases of Alan Crotzer, Wilton Dedge and nine others who were exonerated after being imprisoned. It also came a day after the Florida Innocence Project announced it has new evidence to clear a Polk County man, James Bain.

D'Alemberte, a prominent Tallahassee attorney, had harsh words for the Florida Bar Association, who he feels needs to do more to police the lawyers involved in these cases.

``I am shocked the Bar hasn't opened ethical inquiries into these recent cases,'' he said. ``I'm surprised they haven't shown more interest in the way the criminal justice system works.''

Rules allow a group of 50 or more attorneys to petition the court for a rule-making procedure and D'Alemberte said this commission would mirror similar ones that looked at the issues of racial and gender bias in the court system.

The AP report, "Fla. panel sought to study wrongful convictions," by Bill Kaczor is via the Miami Herald.

Sixty-eight lawyers on Friday asked the state Supreme Court to set up a panel to determine why at least 11 innocent people have been wrongfully convicted of crimes including rape and murder in recent years and recommend ways to avoid that happening in the future.

Former Florida State University President Talbot "Sandy" D'Alemberte filed the petition that includes three former state Supreme Court justices a day after an advocacy group announced DNA testing had cleared James Bain for the rape of a 9-year-old boy near Lake Wales.

Bain spent 35 years in prison - the longest stretch behind bars of 245 people who've been exonerated by DNA nationally.

"Wrongful conviction harms society in a number of ways," D'Alemberte wrote. "The innocent citizen suffers loss of income, damage to reputation, stress on family members, and exposure to brutal prison conditions."

It also means innocent people are imprisoned at taxpayer expense while "the actual criminal goes free and remains a danger to society," D'Alemberte wrote.

The creation of such a panel was one of several recommendations in an 2006 American Bar Association study of capital punishment in Florida. The Supreme Court in October clarified standard jury instructions for death penalty cases in response to another recommendation in that study, which found widespread confusion among jurors.

Lawyers signing the petition included former Justices Harry Lee Anstead, Arthur England and Gerald Kogan and former American Bar Association President Martha Barnett.

D'Alemberte, also a former American Bar Association president, served on the National Advisory Board of the ABA project. It also examined the death penalty in Alabama, Arizona, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.

The proposal for a Florida Actual Innocence Commission is patterned after a similar panel in North Carolina, one of several states that have taken similar steps including California, Connecticut, Illinois, Pennsylvania, Texas and Wisconsin.

The North Carolina commission has made recommendations dealing with mistaken witness identification, improper collection, labeling and preservation of evidence, false confessions, inadequate defense and errors by police and prosecutors.

Earlier coverage from Florida begins with this post.

Selective Empathy

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

Third Annual ABA Journal Blawg 100

The list, with live links, is here.  It's filled with old favorites and some new blogs.  After perusing, I'll be making some additions to the left-column webroll.

One favorite that did not make the list is A Criminal Enterprise, noted here.

ABA Assessment For Kentucky's Capital Punishment System

The Louisville Courier-Journal reports, "Beshear asked to halt executions for study of Kentucky’s death-penalty system," by R.G. Dunlop.

Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system.

The request, sent in letters Monday to Beshear and Attorney General Jack Conway by two of the state’s top public defenders and a dozen Kentucky lawyers, came the same day as Conway asked the governor to set execution dates for three death-row inmates.

Neither Beshear nor Conway indicated Monday that they would grant the request for a moratorium.

Beshear spokeswoman Kerri Richardson issued a statement saying that the governor “supports the death penalty for violent and heinous crimes and reviews each case to see if extenuating circumstances exist.”

Kentucky is the ninth state the American Bar Association has targeted for an assessment of the capital-punishment system. The assessment team met for the first time only last week, and could take a year or more to complete its work.

The Courier-Journal reported earlier this month that the state’s capital-punishment system is so ineffective that more death-row inmates are dying of natural causes than are being executed. The newspaper found that more than one-third of the state’s 35 current death-row inmates have been there at least two decades.

The ABA says the focus of the Kentucky study will, like those in the other states, be a dozen areas of death-penalty administration, including the adequacy of training for prosecutors and defense lawyers, the preservation and testing of DNA evidence, law-enforcement interrogation and identification procedures, the appeals process, clemency proceedings, jury instructions, the treatment of racial and ethnic minorities and mental retardation and mental illness.

Similar studies in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee found compliance problems in every state with a wide range of ABA policies.

The findings were intended to serve as the basis for reforming those states’ capital-punishment systems, imposing moratoriums on executions or launching even more comprehensive self-examinations of death penalty-related laws and processes, according to the ABA.

Indiana’s assessment included a recommended moratorium on executions, but former Gov. Joe Kernan said Monday that the request has not been acted upon. Nevertheless, Kernan — a member of the Indiana study team, whose work was done after he left office — said the effort was worthwhile.

“There’s a greater awareness in Indiana than there was five years ago,” he said.

Kentucky was selected as the next state in part because its death row isn’t prohibitively large for analysis and because it is the only state to have experience with a racial justice act, according to the ABA.

Kentucky’s law was enacted by the General Assembly in 1998 to eliminate racial bias in death-penalty cases. Under the statute, a judge is allowed to consider evidence of discrimination before a capital trial.

“The ABA has supported this kind of legislation for many years,” said Stephen Hanlon, a Washington, D.C. attorney and chair of the committee overseeing the ABA’s review of states’ death penalty systems. “We are hoping to learn what, if any, impact such legislation has on application of the death penalty.”

Although the ABA has no formal position on capital punishment, it asked states and the federal government in 1997 not to impose it until they implemented policies and procedures intended to ensure that death-penalty cases were “administered fairly and impartially, in accordance with due process,” and to “minimize the risk” that innocent people might be executed.

And:

Ten Kentucky lawyers and former judges have been appointed by the American Bar Association to perform an in-depth assessment of the state’s death-penalty system.

Linda S. Ewald , co-chair, law professor, University of Louisville
Michael Mannheimer , co-chair, associate law professor, University of Northern Kentucky
Michael Bowling , attorney, Steptoe & Johnson, Bell County
Don Cetrulo , attorney, Knox & Cetrulo, (former director of the Administrative Office of the Courts), Lexington
Allison Connelly , director, legal clinic, University of Kentucky
Martin Johnstone , retired Kentucky Supreme Court justice
James Keller , retired Kentucky Supreme Court justice; attorney, Gess Mattingly & Atchison, Lexington
Frank Hampton Moore Jr. , attorney, Cole & Moore, Bowling Green
Marcia Milby Ridings , attorney, Hamm, Milby & Ridings, Laurel County
Gordie Shaw , commonwealth’s attorney, 14th Judicial Circuit (Bourbon, Scott and Woodford counties)

"Ky. AG seeks execution dates for 3," is the AP report written by Roger Alford, via the Williamson Daily News.

Attorney General Jack Conway requested Monday that execution dates be set for three convicted murderers on Kentucky’s death row, including one whose case questioned the use of lethal injection nationwide.

Conway sent letters to Gov. Steve Beshear asking for execution dates for Ralph Baze Jr., Robert Foley and Gregory Wilson, whose appeals have been exhausted in state and federal courts.

“There are no remaining legal impediments to the finality of these death sentences,” Conway said in a statement. “The horrific crimes these men committed have taken an enormous toll on the victims’ families, for whom this may bring closure.”

And:

Spokeswoman Kerri Richardson said the governor has received Conway’s requests.

“The governor will carefully review each request and examine the legal status of each case before making any determination on execution dates,” Richardson said.

Ed Monahan, head of the Kentucky Office of Public Advocacy, said all three of the inmates have litigation pending in either state or federal courts. He said he has sent a letter to Conway asking him to withdraw the requests and a letter to Beshear asking him not to sign any death warrants until after an independent review is conducted of the state’s use of the death penalty.

“We want to make sure there are no unjust executions,” Monahan said.

Kentucky has executed three people since 1976. Harold McQueen was electrocuted in 1997 for killing a convenience store clerk in 1981. Eddie Lee Harper died by lethal injection in 1999. Marco Allen Chapman also died by lethal injection in November.

Conway’s call for execution dates came on the same day that a group of Kentucky lawyers asked for a moratorium on executions. Louisville attorney Jason Nemes, former head of the Administrative Office of the Courts and spokesman for the group, said no executions should be scheduled until after the American Bar Association evaluates the use of the death penalty in Kentucky.

Nemes said the American Bar Association already has appointed a team to conduct the evaluation, which would likely take about two years to complete.

Previous assessments organized by the American Bar Association's Moratorium Implementation Project are at the ABA website.  Related articles and news coverage of other state assessments are in the ABA category index.

The Current ABA Criminal Justice Magazine

Published by the Criminal Justice Section of the American Bar Association, the Fall 2009 issue focuses on Postconviction Practices.  Here's the table of contents of featured articles:

Priming Postconviction Representation
By Andrew E. Taslitz
Issue editor for the symposium on postconviction practices, Prof. Andrew Taslitz, Howard University School of Law, here introduces the four major features with an overview of the topic and an explanation of how each feature helps nonspecialists—both defense and prosecution—understand and address the needs of this often-forgotten population within the criminal justice system.

Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings
By Eve Brensike Primus
The author, a law professor and former trial and appellate defender, compares state and federal postconviciton review procedures, then examines the obstacles that bar successful postconviction claims: limited availability of evidentiary hearings, loss of witnesses due to delays, and no constitutional right to counsel at postconviction hearings, among others. Four defense options offer what she terms “partial solutions.”

Postconviction Claims of Innocence
By Myrna S. Raeder
Explaining the options and obstacles facing those who make postconviction claims of innocence, the author, a professor at Southwestern University Law School, notes that appellate remedies exist to ensure a fair trial and not to “second-guess” juries. She addresses the relief available under the Innocence Protection Act and the limitations of DNA testing after the Osborne decision. She also looks at the role of crime victims, the ethical obligations of prosecutors, the definition of “new” evidence, statutes of limitations on relevant claims, and “freestanding” constitutional claims of innocence.

Gubernatorial Clemency Powers: Justice or Mercy?
By Kathleen “Cookie” Ridolfi and Seth Gordon
Is a governor’s power of clemency strictly an act of mercy or is it an extension and, at time, correction to the course of justice? In this article the authors examine the two opposite sides of the coin to see how clemency has been applied by different governors and the legal reasoning employed. They conclude that clemency has been underutilized as a correction that is supported by both the courts and the Constitution as a fail-safe for an imperfect justice system. Included is a graph summarizing the procedures in all 50 states.

From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings
By J. McGregor Smyth, Jr.
Collateral consequences are the invisible, often unintended, punishments that those caught in the criminal justice system face. Indeed, the individual need not even be convicted of a crime—a simple arrest can initiate the process. Loss of job, eviction, deportation, severance of student loans, and denial of child custody are the triggers, the author argues, that so often lead to recidivism. Smyth suggests means by which defense and prosecution can reduce these effects, restore rights, and allow individuals a chance to reintegrate into society—rather than reoffend.

Related posts are in the ABA category index.

The Death Penalty in Washington State

The Walla Walla Union-Bulletin's series continues with five major articles.  The first installment, an overview published on Sunday, was noted here.

"Dollars add up in capital trials," by Andy Porter, ran in Monday's Union-Bulletin.

Estimating the cost of a murder trial involving the death penalty versus one that does not is a tricky business. But several past studies indicate costs are significantly higher for capital cases.

Nineteen years after the state's current death penalty law was adopted, Washington state Supreme Court Justice Richard P. Guy examined the costs for 25 aggravated murder trials between 1997 and 1999, eight of which involved the death penalty.

Adjusted for inflation, the 17 non-capital trials would cost an average of $163,063 today while the eight capital trials would average $497,398 in 2009 dollars, a difference of about $334,000 each.

That difference was slightly more than costs cited in a 2004 study by Mark Larranaga and Donna Mustard of the Washington Death Penalty Assistance Center.

In that report, the authors said "under one review, an average death penalty trial from 2000 to 2003 costs $432,000, compared to $153,000 for a non-death penalty trial." Adjusted for inflation, this would be $487,572 for a capital trial today compared to $172,681 for a non-capital trial, a difference of about $315,000.

A third study, done in 2006 by the Washington state Bar Association, concluded "death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel."

In today's dollars, that would be $497,043 extra for a trial involving the death penalty with an added $49,704 to $74,000 for court costs. But the report did not provide an estimate for a non-capital trial, as did the previous two reports.But the authors of the 2006 Bar Association report note that any aggravated murder trial is likely to carry a high price tag whether it involves the death penalty or not.

"Run-up to date with executioner runs up tab, too," also by Porter, also ran Monday

Eight hours before Cal Coburn Brown was scheduled to die, the bill for his execution was more than $75,000 and climbing.

It was a warm late afternoon March 12, a Thursday, and preparations were well under way at the Washington State Penitentiary. Checkpoints were in place at parking lot entrances to search arriving vehicles, areas for pro and anti-death penalty protestors had been readied and remote broadcast trucks were setting up.

Then word came down that the state Supreme Court had granted Brown a stay, bringing things to a screeching halt.

The bulk of the thousands of dollars spent up to that point consisted of the wages and overtime for the Department of Corrections personnel and officers, travel expenses for DOC officials and more than $13,000 for "goods and services," which included extra fencing for protestor areas, portable toilets, expenses for bringing the victim's family to Washington state to witness the execution and other items, said Maria Peterson, DOC spokeswoman.

Peterson said the only way the final bill could be calculated would be if the execution had actually gone off.

For instance some expenses, such as travel expenses for herself and other DOC officials, had already been included in the money spent up to the point the execution was called off while other expenses, especially for wages and overtime, couldn't be calculated because of people going off the clock or back on the clock during the countdown. Any complications in the process would also have added significantly to the final bill.

"Death penalty divides local law enforcers," By Terry McConn was published Tuesday.

Top law enforcement officials in Walla Walla County express differing views when discussing the death penalty — just like most of the nation.

Walla Walla police Chief Chuck Fulton is opposed to capital punishment; College Place Chief Dennis Lepiane is a proponent.

And County Sheriff Mike Humphreys says a public vote on the issue may be in order.

Polls suggest that nationwide, about two-thirds of people support capital punishment, but are split down the middle when a sentence of life without parole is mentioned as an alternative.

And:

Humphreys said the death penalty is expensive, but the desires of victims’ families should weigh heavily into any consideration of abolishing the law.

“I think maybe it should go to a public vote. It’s costing us this much money. Let the people make that decision,” Humphreys said.

Fulton, however, would rather see the Legislature abolish the practice to avoid widespread emotional debate that would arise from an election.

He believes the death penalty just creates more victims. The four executions at the Washington State Penitentiary in past years have resulted in a “carnival atmosphere” that adversely affects penitentiary workers, law enforcement officers responsible for maintaining security and everyone else involved.

“That saddens me about our system,” Fulton said. “I feel sorry for all of those who have to deal with that.”

He added he has “absolutely zero remorse” for somebody who commits murder. “But for the whole of society, I don’t know if the death penalty is truly the answer.”

Also:

A survey this year of leading criminologists ranks expanding the death penalty as dead last in reducing violent crime. No. 1? Reducing drug abuse, which makes sense to the local officials.

Humphreys believes 70 to 80 percent of all crimes are related to the use of illicit drugs or alcohol.

“If we’re going to reduce the drug abuse, we’re going to reduce all crimes,” he said.

“From thefts to murder.”

"Capital punishment has long history in world, state," ran Wednesday.

Government-sponsored killings date back to hundreds of years before Christ was born.

The Death Penalty Information Center Web site says capital punishment was codified in Babylon in the 18th century B.C. for 25 different crimes. Similar laws were enacted in subsequent centuries in Athens, Rome and Britain.

"Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive and impalement," according to the Web site.

Laws established by European settlers to the new world were mostly influenced by Britain, which by then employed various means to execute perpetrators of any of more than 200 crimes.

And:

The Washington state Legislature addressed constitutional flaws in this state's law that year (1977) by removing the "mandatory" provision and adding a special sentencing procedure for imposing a death sentence.

According to a Washington State Bar Association report: "Under this statute, the sentencing jury was asked to determine whether guilt was established by 'clear certainty'; whether aggravating mitigating factors existed; and whether the defendant would commit additional violent acts in the future." Absent any of those findings, the punishment was life in prison without the possibility of parole.

But that law, too, was found lacking -- this time by the Washington state Supreme Court. Justices in early 1981 declared it unconstitutional because it allowed defendants who pleaded guilty to escape the death penalty. The court said that practice "chilled" a defendant's right to trial and created an inequitable sentencing scheme.

The present law was enacted by the Legislature on May 14, 1981.

Hanging remained the primary form of execution until 1996 when the Legislature switched to lethal injection as the default method. Condemned prisoners may choose hanging if they desire.

Washington state has executed 109 people since 1849, according to a database known as the Espy File.

Seventy-seven men (no women) have been put to death at the state Penitentiary since 1904.

Four of the executions have been carried out since the 1981 statute was enacted -- all since 1993.

All but the last two at the prison have been hangings.

"Death penalty a rarity in Washington," is in the current edition of the Union Bulletin.

The death penalty is seldom imposed in Washington state.

Since 1981, more than 7,000 homicide cases have been filed. Only 30 death sentences have been handed down.

That's partially because Washington's death penalty law is narrowly structured. But add to that an appellate court system that historically has been reluctant to allow an execution to take place and it becomes clear why the death chamber at the Washington State Penitentiary has been allowed to gather dust.

A breakdown of the 30 cases is as follows:

Four men have been executed.

Eight are on death row.

And 18 (of the 22 convictions or sentences that have completed review) have been reversed by either the state Supreme Court or federal Ninth Circuit Court of Appeals based in San Francisco. That 81 percent reversal rate is about double the national figure of 43 percent, calculated from 1977 through 2004.

A 2004 report by the Washington Death Penalty Assistance Center says the reversals "have been attributed to all aspects of the criminal justice system," including constitutionally prohibited errors, judicial errors, prosecutorial and jury misconduct, and ineffective defense counsel.

That partly can be explained by the complicated nature of capital punishment laws in Washington and throughout the country.

The American Bar Association has noted that "death penalty litigation is extraordinarily complex, both for the courts and for the attorneys involved," according to the Assistance Center report. "Not only do the cases incorporate the evidentiary and procedural issues that are associated with virtually every non-capital case, but they also involve a host of issues that are unique to capital cases."

Justice Alito and the ABA Guidelines

National Law Journal reports, "A Justice's Curious Comment About ABA Guidelines for Death Penalty Lawyers."  It's written by Marcia Coyle.

The Supreme Court this week, in an unsigned opinion, reversed relief granted by the 6th U.S. Circuit Court of Appeals to a death row inmate because of his lawyer's ineffective assistance. But Justice Samuel Alito wrote separately -- and curiously -- to emphasize his view that no "special relevance" should be given to the American Bar Association's guidelines on the appointment and performance of defense counsel in death penalty cases.

In Bobby v. Van Hook, the justices found that, among the 6th Circuit panel's errors, was its reliance on ABA guidelines announced 18 years after Robert Van Hook went to trial.

The per curiam opinion said the Sixth Amendment entitled defendants to representation that does not fall below an "objective standard of reasonableness." Restatements of professional standards, the Court added, can be useful guides as to what reasonableness entails, "but only to the extent they describe the professional norms prevailing when the representation took place."

The Court said the 6th Circuit made "matters worse," by treating the 2003 guidelines not merely as evidence of what reasonably diligent attorneys would do, "but as inexorable commands with which all capital defense counsel 'must fully comply.'"

In a concurring opinion, Justice Alito said that the ABA is a "venerable" organization with a history of service to the bar, "but it is, after all, a private group with limited membership." Its views, he added, do not necessarily reflect the views of the bar as a whole.

Courts must decide whether a defense lawyer's work meets the constitutional standard, he said, adding, "I see no reason why the ABA Guidelines should be given a privileged position in making that determination."

And:

The ABA's 2003 guidelines have been cited widely in decisions by state and federal courts, including the Supreme Court, most recently in Rompilla v. Beard, a 2005 decision finding ineffective assistance of counsel in a death case.

"The law has always been that the ABA guidelines are only guides to putting content on the very vague Strickland standard," said Eric Freedman of Hofstra University School of Law, a member of the steering committee of the ABA's Death Penalty Representation Project. The original guidelines were approved in 1989 and revised and adopted without dissent in 2003.

Freedman said that if the entire court had endorsed Alito's comments, the justice would not have had to write separately; the comments would have been in the opinion.

"No one is suggesting the ABA has some special role," said Freedman, adding the guidelines are an "honest effort" to state what a reasonable attorney would do in these cases.

"The ultimate point is courts are to decide the [ineffective assistance] issue," he said. "If a judge is asked what was the standard of care in 1990, he or she has to find it somewhere. It certainly seems a sensible viewpoint, which the per curiam opinion doesn't contest, that in seeking illumination, the carefully written ABA standards are one good place to look."

The revised edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases provides an outline for minimally sufficient representation in capital cases.  The ABA Guidelines also form the basis for the State Bar of Texas' Guidelines and Standard for Texas Capital Counsel, adopted in 2006.

Minnesota Lawyers Protect Rights of Those on Death Row

That's the title of Sam Barr's Behind the Bar column at MinnPost. LINK  Here's an extended excerpt from the beginning of the article.

About 3,300 people are on death row right now. Few are represented by competent lawyers at public expense, despite the need to be sure — certain, if possible — that only the guilty will be executed. Most death row inmates desperately need a lawyer.

At its annual awards ceremony a week ago, the Minnesota Justice Foundation highlighted the injustice that pervades the death penalty in the United States and recognized the Minnesota lawyers and law firms that donate time and money in the pursuit of justice for those on death row.

According to U.S. Magistrate Judge Jeffrey Keyes, "the criminal justice system, by and large, is infected with error. In a death penalty case, all of those inherent flaws are multiplied."

So it would seem: at least 17 people have been exonerated by DNA evidence after they were sentenced to die for crimes they did not commit. Minneapolis law firm Maslon Edelman Borman & Brand, LLP, may be representing the next one.

Douglas Armstrong was convicted of murder in south Texas. He claims he came on a man lying in a pool of blood, and tried to drag him to help. His story has never changed. Someone saw him, and he gave it up, only to be arrested shortly afterward. His trial counsel gave a half-hearted effort, and Armstrong was convicted. He was sentenced to death because the police claimed they found the victim's Medicaid card on Armstrong, and called that an aggravating factor. Maslon won the right to test the DNA evidence, which could refute the state's evidence and exonerate Armstrong.

But DNA evidence is not available in all cases.

Further, according to University of Minnesota law professor Carl Warren, the criminal justice system targets, convicts and executes minorities far more than whites. Warren points to research suggesting that the death penalty is a legal replacement for lynchings in some southern states. Panelists at MJF's seminar on death penalty litigation noted the frequency with which prosecutors pack the jury of a black defendant with white jurors.

Numerous other errors come up again and again in death penalty cases, from prosecutorial misconduct to incompetent defense counsel and more.

The only way to correct errors is on appeal, but there is little assistance available to those sentenced to die. During its 1995-96 term, Congress eliminated funding for resource centers that provided post-conviction representation. The same year, it shortened the time convicts had to file an appeal. Only a handful of states provide any assistance after conviction. Since 99.5 percent of those on death row are impoverished and cannot afford a lawyer, most errors go uncorrected.

Worse, some of those sitting on death row probably should not be there. Until 2002, the mentally retarded could be executed. But proving mental retardation takes a competent lawyer and expensive experts. Robin Maher, director of the American Bar Association's Death Penalty Representation Project, believes many of those on death row will be executed even though they are mentally retarded

Maher says she is angry. "I know how much there is to be angry about." Like a defense lawyer who told the jury his client's life was not worth saving. Or other defense counsel who were drunk or high during their clients' trials. Or U.S. Supreme Court Justice Antonin Scalia, who said the innocent may be executed as long as the proprieties are observed. (Scalia also says he does not believe anyone who is innocent has ever been executed.) Or judges in Alabama who often overrule juries when the juries decline to sentence the convicted defendant to death. Or the fact that until 2005, children could be sentenced to death.

Those on death row are in desperate need of lawyers to ensure that justice — whatever that may mean in a particular case — is done.

Delaware PDs See Case Loads Reduced

"State's public defenders see fewer cases," is the title of J.L. Miller's report in the Wilmington News Journal.

The Public Defender's Office won't seek a budget increase this year, thanks to a puzzling trend in the number of cases the agency handles.

Public Defender Brendan O'Neill said in his agency's budget hearing Thursday that there has been "a very slight downward trend" in the number of cases in which cash-strapped defendants require representation by his lawyers.

"At this point it looks like we're not in a growth industry, and that's a good thing," O'Neill said. He said he expects his office to handle around 49,000 cases this fiscal year and the same number the following year.

But O'Neill, whose office employs 71 assistant public defenders, was at a loss to explain why the caseload hasn't gone up. Conventional wisdom would be that crime goes up in an economic downturn, and thus more people would require representation in court.

"We're really not sure," O'Neill said in response to a question by Ann Visalli, head of the Office of Management and Budget. "It's a puzzle to us."

Regardless of the cause, the trend means the office can hold its budget request steady at $14.6 million -- at a time when declining state revenues make larger budgets nearly impossible.

About 94 percent of the office's budget is in personnel costs, making budget cuts more difficult than in some other agencies. That's complicated by the fact that in order to comply with the Constitution, the state must provide representation to defendants facing imprisonment if they cannot afford an attorney.

"We really can't get stretched too much further," O'Neill said.

As it is, the agency's attorneys have their work cut out for them. In Superior Court, assistant public defenders are averaging 220 cases a year. The American Bar Association's optimal caseload standard is 150 cases.

The situation is much the same in Family Court, where the lawyers handle 408 cases a year. The ABA standard is 200.

And in Court of Common Pleas, the agency's lawyers handle 904 cases a year. The ABA standard is 400.

"This is significantly above what the ABA standards call for," O'Neill said. However, he added that this does not put the state "at risk of any malpractice or any kind of liability."

Related posts are in the indigent defense category index.

Florida Revises Death Penalty Jury Instruction

"Fla. justices respond to death penalty confusion," is the title of Bill Kaczor's AP report, via the Miami Herald.

The Florida Supreme Court revised standard jury instructions for death penalty cases Thursday in ways the justices hope will reduce widespread confusion among jurors disclosed by an American Bar Association survey.

An ABA team studying Florida's death penalty process three years ago found large percentages of jurors misunderstood the law and their role in deciding death cases.

About 35 percent didn't realize they could consider any evidence - not just examples cited in the instructions - that would mitigate against a death sentence. More than 36 percent wrongly believed they had to recommend death if they found a defendant's crime was "heinous, vile or depraved."

Also, 25 percent had the misconception they must recommend death if they thought a defendant would be a future danger to society. In reality, that's a factor they cannot consider.

The justices wrote in an unsigned unanimous opinion that such confusion was "a cause for concern."

The high court accepted recommendations from its steering and criminal jury instructions committees, including some also suggested by the ABA team.

"It is encouraging and certainly this is a step in the right direction," said ABA team member Mark R. Schlakman, senior program director at Florida State University's Center for the Advancement of Human Rights. "But there is more work to be done."

The justices acted six weeks after lawyers, current and retired judges, and a former death row inmate criticized Florida for ignoring the ABA team's 2006 recommendations during a forum at Florida State.

And:

One new instruction says jurors should not be influenced by racial or ethnic bias, but the justices rejected an ABA recommendation to also order that jurors report evidence of discrimination in their deliberations.

"We agree, of course, that racial discrimination has no role in the jury deliberation process, but we are hesitant to craft any special instructions in this area without first being presented with specific proposals" by the Supreme Court committees, the justices wrote.

They added they may be open to such an instruction in the future.

By a 4-3 split the justices also rejected proposals for juries to fill out two special verdict forms showing whether they found a defendant guilty of premeditated or felony murder - both punishable by death - and explaining why they recommend a death sentence.

A defendant who didn't actually kill someone can be convicted of felony murder if he or she participated in a felony that resulted in death.

The majority wrote that premeditated or felony murder forms could result in even more juror confusion. They added that judges still could have juries fill out such forms but declined to require them.

Juries must unanimously decide guilt or innocence, but they can recommend death by a simple majority vote. Sentencing is up to judges, but they must give great weight to jury recommendations.

The Court's order is here.  Earlier coverage from Florida begins with this post; more on the FSU Forum, here.

Opinion Roundup

"Death penatly costly," is the editorial in the Salina Journal.  It's written by editor and publisher Tom Bell.

Just for the sake of discussion, let's set aside any moral questions regarding the death penalty and look at the issue from another angle -- one based in common sense.

Simply put, the death penalty is much more expensive for taxpayers than putting someone in prison for life, a conclusion reached in numerous studies.

The additional expenses start with the trial. A 2003 study by the Kansas Legislative Division of Post Audit found that nondeath penalty cases cost about $740,000 to prosecute, while those involving the death penalty are estimated at about $1.2 million.

Reasons for the higher cost include lengthier trials, additional lawyers, more expert witnesses and more legal maneuvers. The study says the state bears 85 percent of total costs. One proposal to address these expenses is for Kansas to have a sentence of life in prison without chance of parole, which the Legislature passed in 2004.

And:

Consider that New Mexico lawmakers abolished the death penalty because cases were six times more expensive than those involving life without parole. An Indiana state study commission found death penalty cases are 38 percent more expensive than life without parole.

Meanwhile, statistics show that the death penalty is not a deterrent to violent crime.

Add it up: Capital punishment costs millions more than life in prison without parole. It does not deter violent crime. Endless appeals make the process long and trying for victims' families.

Those are ample reasons to ban the death penalty, even without the moral considerations.

Today's Sarasota Herald Tribune carries the OpEd, "Florida's death penalty process needs broad reform," by Raoul G. Cantero III and  Mark R. Schlakman.  Cantero is a former Florida Supreme Court justice appointed by Gov. Jeb Bush; Schlakman is with Florida State University's Center for the Advancement of Human Rights.

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that raised serious concerns about the state's death penalty process. Since then, neither state government nor The Florida Bar has done much to remedy the problems.

The ABA assembled a highly credentialed, eight-member team that was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives. The report was developed after almost two years of research and analysis, and findings and recommendations had to be unanimous to be included in the report.

The report neither supports nor opposes capital punishment; nevertheless, individual team members' perspectives ran the gamut. Simply put, the report's findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings, particularly by certain private counsel, is often abysmal.

And:

To access the full report, visit http://www.abavideonews.org/ABA340/.

Last month, the Florida State University Center for the Advancement of Human Rights hosted an ABA-sponsored forum on Florida's death penalty process in Tallahassee to coincide with the third anniversary of the release of the ABA report.

Extra emphasis was placed upon the costs and fiscal implications of the death penalty against the larger backdrop of increasing shortfalls in the state budget. Such issues are the focus of a national report released recently by the Death Penalty Information Center. To watch a replay of the forum, visit http://campus.fsu.edu/ABA.

Floridians expect a system of justice that engenders confidence based upon fairness and accuracy; however, with regard to the state's death penalty process, that standard has proven to be elusive. It's long past time to openly and honestly debate these issues and to consider possible solutions.

For the Albany Times Union City Brights blog, Alice Green posts, "The Slow Death of Capital Punishment."  Green is the founder of the Center for Law and Justice.

Earlier coverage from Kansas is here; Florida, here.

Opinion Roundup

We have an OpEd, blog post, and column to fit into this post.

First from the Allentown Morning Call, an OpEd by Ashlee Shelton and Kurt Rosenberg, "Pennsylvania is at serious risk of executing an innocent person.  She is the director of Pennsylvanians for Alternatives to the Death Penalty; he is the director of Witness to Innocence.

It's happened. Investigative reporting and hard scientific evidence indicate a government in the United States has executed an innocent person, an inevitable event that anti-death-penalty advocates have suspected and feared for years.

In 1991, Cameron Todd Willingham's three daughters died in a fire in Texas. Willingham managed to escape. Witnesses stated that Willingham was hysterical and tried mightily to get back into the house to save the girls, even to the point that police had to handcuff him to keep him in place.

But then fire investigators took over. They suspected arson, claiming remnants of the fire, including the burn patterns and cracked glass on the windows, were signs the fire had been set.

Once suspicion fell upon Willingham, the witnesses' statements changed.

And:

It would be easy to sweep this aside as Texas-style justice. But the factors that led to Willingham's wrongful conviction and execution -- junk science, faulty eyewitness testimony, a jailhouse snitch -- exist in cases here in Pennsylvania. Arson experts suggest that innocent people may have been sent to prison in dozens of cases nationwide, including in Pennsylvania.

The case of Daniel Dougherty of Philadelphia is one such case. Dougherty's two sons died in a house fire in 1985. Fourteen years later, in the midst of a bitter divorce, Dougherty's ex-wife claimed that he set the fire.

The evidence that led to Dougherty's conviction and death sentence is similar to that in Willingham's case. Investigators used disproven science, prison informants and questionable eyewitness testimony to claim Dougherty set the fire. John Lentini, a nationally recognized fire expert, told ABC News last year that the investigator in the case ''was so far off base it's unbelievable that no one challenged his expertise or methodology.''

Pennsylvanians for Alternatives to the Death Penalty and Witness to Innocence do not take positions on the guilt or innocence of persons currently before the courts. But we recognize flaws when we see them. And we recognize that Pennsylvania is at serious risk of executing an innocent person. That same conclusion was reached by the American Bar Association's Death Penalty Assessment Team in a report released in 2007.

There is one foolproof way to ensure that the horror that happened to Cameron Todd Willingham in Texas does not happen in Pennsylvania. End the death penalty.

Earlier coverage of Witness to Innocence is here.  This remarkable organization held its 2008 annual conference in Austin.  More on the ABA Pennsylvania assessment is here and here.

The Cornell Daily Sun's blog, A Window on Justice, has, "Should the Death Penalty be Abolished?" by Sara Furguson.

The University Daily Kansan carried Kelly Cosby's column, "Death to the death penalty."

More From Florida

"Execution reforms gain new traction," is the title of the Gainesville Sun report by Suevon Lee.

No matter one's view on the death penalty, it needs serious reform in Florida. So say a number of lawyers, academics and judges pressing for changes in the state's system of capital punishment.

Three years have passed since the Florida Death Penalty Assessment Team recommended a host of changes, such as: requiring jury unanimity in death penalty recommendations; establishing statewide protocols for determining when death should be a sentencing option in murder cases; and studying the possibility of racial, socioeconomic or geographic disparities within the system.

The team's 2006 study has largely fallen on deaf ears within the executive, legislative and judicial branches. Polarizing issues like the death penalty are "readily demagogued," said Mark Schlakman, program director of the Center for the Advancement of Human Rights at Florida State University.

"Few elected officials have demonstrated the will to take on some difficult issues," he said.

But today's dour economic climate has given the proposed reforms new currency. It's easier to put someone on death row in Florida than in other states, and that brand of capital punishment doesn't come cheap.

That factor, plus the political calendar - the state's 2010 legislative season is just around the corner - is motivating reformers to push even harder for change.

The issues were brought to light again earlier this month in Tallahassee, when the American Bar Association held a series of panel discussions on death penalty reform. Experts gathered at Florida State to revisit the 2006 report and consider strategies to persuade lawmakers to enact reform.

Capital punishment has long been considered the most costly and time-consuming extension of the criminal justice system.

It costs an additional $3.4 million per year to house Florida's Death Row inmates than those serving life in prison without parole, according to the state's Commission on Capital Cases. This is mostly because of special security requirements.

A 2000 Palm Beach Post study found that the total cost of prosecuting, convicting and executing an individual is $3.2 million.

And:

Reform advocates cite other reasons for change.

For example, with 23, Florida leads the nation in the number of death row exonerations.

They also point out that, among the 35 states that exercise the death penalty, Florida is the only one that doesn't require a unanimous jury recommendation for death.

In Florida, the judge always imposes sentence.

He or she is supposed to give "great weight" to the jury's recommendation.

But a 7-5 majority is sufficient to tip the scales in favor of death.

Some legal minds see a problem with this.

"Florida is alone in saying that (only) a majority opinion is needed," for a death recommendation, said Christopher Slobogin, a law professor at Vanderbilt University, during the FSU symposium.

Earlier coverage from Florida begins with this post.

Ohio Secretary Of State Calls for Moratorium

Jennifer Brunner writes, "Time for a Moratorium to Rethink Executions," for Huffington Post, today.

I am running for the United States Senate because I believe that public service is for the purpose of helping our fellow citizens realize improvement in their lives. I believe that a government that treats its citizens with fairness, equality and respect, brings peace and justice to its citizens. In this framework, killing in retribution for killing has no place. It is in the community of sharing each other's burdens that we bridge the human chasm we cannot comprehend.

And:

Like any mother, father, sister, brother, child, aunt, uncle, grandparent or citizen, I consider the crimes of which Broom was convicted heinous. I think of the years I have enjoyed with my daughter. I think of the years denied Bessye and David Middleton the companionship and love of their daughter Tryna, and it pains me.

When I served as a felony trial court judge in Columbus, Ohio, I learned firsthand that in rape and murder cases, no one is healed by the trial and punishment. No judge, no executioner--no one--can make the situation right, restore the loss, heal the wounds, bring the person back to the life or eradicate the fear and loss of stability. When "justice" is done it works to protect the community, satiate the hate, teach the lesson, prevent further loss, and only sometimes help heal the pain. When "justice" is execution, what does it accomplish? I'm not really sure; my psyche (and I believe America's psyche) never really felt healed on the execution of Timothy McVeigh.

So I simply ask, "Why do we do it?"

I answer, it is the law, and it is what we must follow until enough minds prevail to change it. I have always given the law its due because I honor the law, and I live in a society governed by the rule of law. But I cannot concede that our law requiring the execution of the convicted is a valuable tool of a just society under any particular or nebulous circumstance. The human condition is subject to the judgment of the creator, and only this can give me peace.

Thus, I cannot condone a system that perpetuates the pain from which sprang the punishment. A civilized society does not abide barbarism to ease its pain. It is not justice for me. Even when those who represent me and make the laws say that it is, I say that the people have said, "Then if this is justice, it must not perpetuate the cruelty from which it has sprung." It must neither torment its recipients nor its administrators.

In Ohio, after a 30-month review of the state's death penalty system, a team of Ohio legal experts, working under the auspices of the American Bar Association's Death Penalty Moratorium Implementation Project, issued a report on September 24, 2007 calling for a temporary halt to executions in Ohio in light of numerous problems the team uncovered.

The Ohio team rated the state's operation of the death penalty against 93 standards established by the ABA. The state gained a passing grade on four. In its report, the team said that Ohio's death penalty system is "flawed."

And:

There is much discussion ahead as we dare to embrace the change that lay before us. With your help I can begin that discussion in the Senate along with many other thoughtful and diverse minds.

In the interim I call for an immediate moratorium on the death penalty to allow the dialog to begin once again--not just about how people are put to death, but whether they should be. Like 15 other states that have outlawed prisoner executions, I believe that answer is no. I ask that you join me.

Earlier coverage of the Ohio botch begins here.  More on the ABA assessment here and here.

Coverage and Commentary on the Florida ABA-FSU Symposium

Last week, Florida State University's Center for the Advancement of Human Rights hosted a symposium marking the three-year anniversary of the release of an ABA assessment of the state's administration of capital punishment.  The event was noted here.

In the Fort Myers Press-News Capital Idea column, Paul Flemming writes, "Juries should have to reach unanimous decision to recommend death penalty."

You couldn't get spinach on your pizza after E. coli-tainted shipments of the leafy stuff killed a couple people. The Cardinals won the World Series. "Basic Instinct 2," "Ice Age 2" and "Jackass 2" played in theaters. Among those who died in 2006 was an odd musical trio: Buck Owens, Billy Preston and Syd Barrett.

Clarence Hill, Arthur Rutherford, Danny Rolling and Angel Diaz also died that year. They were executed by the state of Florida.

That same year a group assembled by the American Bar Association released a weighty tome - a literal and figurative description of the 400-plus page assessment of Florida's death penalty.

Those who labored to produce it ranged across the ideological spectrum and its leadership was at great pains to insist - correctly - that the report did not take a position on the death penalty itself, only its administration and the many flaws in Florida's system.

"The ABA does not have a position against the death penalty," Sandy D'Alemberte, former president of the ABA and former Florida State University president, said this week. "It does have a position that the death penalty ... ought to at least be administered fairly, honestly and without discrimination."

An even dozen recommendations were put forward, ranging from reforms to address faulty witness identifications, ambiguous jury instructions and racial disparity in the death penalty's application.

And:

A unanimous Florida Supreme Court, in an opinion authored by now-former Justice Raul Cantero, a Bush appointee and then the court's most reliably conservative member, called for the Legislature to require juror unanimity to recommend a death sentence. Florida is alone among the 35 states that execute prisoners that doesn't require all jurors agree to the death penalty. The ABA report also suggests the same thing.

Also in 2006, then-Rep. Bruce Kyle, a Fort Myers Republican - and now a 20th Circuit judge - offered, a resolution rebuked the state's Supreme Court and saying the House thought a simple majority of jurors was just dandy to condemn suspects. It passed by a voice vote.

Another 2006 highlight was a November election. Florida voters passed Amendment 3, a proposal by the Legislature to require amendments to the state's constitution be approved by 60 percent of those casting ballots.

To recap: Changing the state's constitution is of such import that it should require three of five voters' assent to alter it. Deciding to put a person to death can be determined by a 7-5 vote.

By those standards, a jury vote recommending death wouldn't be enough, at 58 percent, to pass a constitutional amendment.

Since 1973 Florida has released 19 men from death row. One is Juan Melendez, convicted in 1994 and sentenced to death for a crime he did not commit. That didn't stop him from serving 18 years, eight months and one day on death row before justice was served and he was released in 2002.

"You can never release an innocent man from the grave," Melendez said Wednesday. "The death-penalty law is not working in the state of Florida."

The symposium drew other press coverage as well.  The Miami Herald carried the AP report, "Fixes to Fla. death penalty ignored."  It's written by Bill Kaczor.

Lawyers, current and retired judges and a former death row inmate Wednesday criticized Florida for ignoring suggestions on how to fix its death penalty procedures.

An American Bar Association team made the recommendations three years ago. A forum at Florida State University was designed in part to "brush off any dust," said Sandy D'Alemberte, the school's president emeritus and a former ABA president.

"There has just been a lack of political will, both executive and legislative," D'Alemberte said. "I hope at some point people will understand this is such an expensive system we're running and it's one that's been extremely ineffective."

D'Alemberte said the forum's purpose was not to advocate abolishing the death penalty but to push for changes in a system that one judge called "a morass."

Sen. Victor Crist, a Tampa Republican who focuses on death penalty issues and chairs a committee that oversees court and prison system spending, said the Legislature has looked at the recommendations and decided most weren't needed.

"To say that we have a dysfunctional death penalty system is false and misleading," Crist said. "Florida is at the forefront of anywhere in the world that has decided to keep the death sentence."

And:

Circuit Judge Lynn Tepper of Dade City said she was afraid federal courts may begin overturning some death sentences because Florida is the only state that lets juries recommend death and agree on aggravating circumstances to justify that sentence both by less than a unanimous vote.

"One of these days Florida is going to find itself in trouble," said Tepper, who participated in the forum by phone.

The Florida Supreme Court in 2005 also urged the Legislature to require unanimous jury recommendations in an opinion on one of Tepper's cases.

Crist did agree with the critics on one issue - the state should restore a legal office that represented death row inmates in northern Florida for their appeals.

At the urging of former Gov. Jeb Bush, the Legislature abolished that office and set up a system of private lawyers as an experiment in privatization but kept two others going in central and South Florida.

Judges have complained the private lawyers have not been up to par. Crist said he's worried about losing the confidence of the courts and has sponsored bills for the past three years to restore the northern office. They have passed in the Senate but haven't been taken up in the House.

"Florida lawyers, FSU debate death penalty woes," was the Jacksonville Observer's provided by the News Service of Florida.

Juan Melendez speaks with some authority when he talks about the need to investigate wrongful convictions and make sure that everyone on death row really should be there.

He knows many of the men on Florida’s death row. He was once one of them.

“Believe me my friends, some of them are innocent,” said Melendez.

Freed in 2002 after 17 years, eight months and one day in prison when he was cleared of the murder for which he was convicted, Melendez now works to stop states from wrongfully executing the innocent and thinks the Legislature ought to at least look at a 2006 report by Florida lawyers and the American Bar Association that called for several changes to the way the death penalty is applied here.

The report made recommendations that ranged from creating a commission to investigate wrongful convictions and one to review factual claims of innocence to adopting new standards governing the qualifications and compensation of post-conviction attorneys. It also called for developing protocols for the capital charging decision, redrafting jury sentencing instructions, requiring unanimous jury verdicts for death sentences and further studying racial disparities in capital punishment.

But lawmakers have not considered any major death penalty reforms over the past few years.

And:

Harry Shorstein, a former state attorney from Jacksonville who served on the ABA commission, is in favor of the death penalty, noting that he could never be elected if he were against it. But he acknowledged there were problems in the system. He said he would seek the death penalty less than a third of the time, but was getting death penalty verdicts more than that.

Former Florida Department of Corrections Secretary Harry Singletary said he too had no problem that the death penalty was on the books, but said over time, he has realized there are several problems with the system as many people have been wrongly convicted.

“If you’re going to take somebody’s life, that’s an irrevocable sanction,” Singletary said.

In Forida

Today's St. Petersburg Times carries the OpEd, "Florida death penalty system needs reform."  It's written by Raoul G. Cantero III and Mark R. Schlakman.  Cantero is a former Florida Supreme Court justice appointed by Gov. Jeb Bush.  Schlakman is the board chair for the Innocence Project of Florida and served on the ABA's Florida Death Penalty Assessment Team.

Florida State University's Center for the Advancement of Human Rights will host a forum today to coincide with the three-year anniversary of the release of the ABA report.

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that raised concerns about the state's death penalty process. Since then, neither the government nor the Florida Bar has done much to remedy the problems.

To study Florida's death penalty, the ABA assembled a highly credentialed eight-member team that was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives. The report was developed after almost two years of research and analysis, and findings and recommendations had to be unanimous to be included in the report.

The report neither supports nor opposes capital punishment. However, individual team member perspectives regarding capital punishment ran the gamut. Simply put, the report's findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings, particularly by certain private registry counsel, is often abysmal. The report makes several related recommendations, including reinstating the capital collateral regional counsel office, or CCRC, in the Northern Region of Florida. That office was disbanded as part of a still-ongoing pilot project launched during Jeb Bush's tenure as governor. It in effect privatized the northern office of the CCRC, thereby relying almost exclusively upon private registry counsel to handle postconviction appeals in death penalty cases.

Gov. Charlie Crist has expressed support for reinstating the northern CCRC office.

Another one of the report's major recommendations embraces a Florida Supreme Court opinion that unanimously called upon the Legislature to revisit the state's death penalty statute. The report, like the opinion, observed that Florida is the only one of 35 death penalty states that allows a jury to decide that aggravating factors exist and to recommend a sentence of death by a majority vote. Despite the court's strongly worded opinion, however, the Legislature has been unresponsive.

And:

The challenge for those who hold and aspire to elected office, including Florida's 20 state attorneys, is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems. Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive. We hope that this election cycle will provide an opportunity to openly and honestly discuss these issues and to seriously consider possible solutions for the problems identified in the report.

Attorney General Eric Holder Addresses ABA Annual Meeting

The transcript of Holder's prepared speech is here.

"Holder: Jail is not only crime solution," is the Chicago Tribune report written by Kristen Schorsch.

U.S. Attorney General Eric Holder, addressing the American Bar Association on Monday, called for getting not only tough but also "smart" on crime, saying that jail is not the entire answer when it comes to law enforcement.

Noting that one of every 100 adults across the country is behind bars -- "the highest incarceration rate in the world" -- Holder said that putting people in prison costs too much economically and socially in a nation where car dealerships are closing, teachers are getting laid off and after-school programs are being cut.

"But in almost all cases, spending on prisons continues to rise," Holder said during a roughly 20-minute speech at the association's annual meeting in Chicago. "This is unsustainable economically."

Holder called for new strategies and tools to fight crime, such as studying what happens to inmates once they leave prison and developing programs based more on their failure or success.

And:

Holder also wants to identify and tailor programs for children who are most at risk for committing crimes later in life. Also on the table, Holder said, are addressing a lack of resources for public defenders -- a line that drew applause from the assembled lawyers -- and reviewing federal sentencing and corrections policy.

The ABA Journal has posted, "AG Holder Calls for Getting ‘Smart on Crime’," written by Edward A. Adams.

“We must be tough on crime, but we must also commit ourselves to being smart on crime,” he said.

Since 2003, spending on incarceration has continued to grow, while crime rates have stopped declining, he said. Now, one of every 100 adult Americans is incarcerated— the highest incarceration rate in the world, he said.

As evidence of how DOJ will implement a data-driven approach, he noted that federal prisoners who go through a drug treatment program are 16 percent less likely to be arrested and returned to prison. Those who work in prison industries are 24 percent less likely to commit a crime again. Those who go through prison education programs are 16 percent less likely to be arrested again, he said.

Most crimes are committed by people who have already committed crime, he noted. More than 65 percent of former state prisoners and 40 percent of former federal prisoners are rearrested within three years of their release, he said.

“Even a modest reduction in recidivism would prevent thousands of crimes,” Holder said.

"Holder draws applause calling for indigent defense, DNA testing," is at the National Law Journal's coverage of the ABA Annual Meeting.

With respect to the lack of resources for public defender programs, Holder said that those programs receive only 3 percent of criminal budget spending in the nation’s biggest counties. “This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel,” he said. “When defendants fail to receive competent legal representation, their cases are vulnerable to costly and time-consuming mistakes.”

Holder described the Justice Department as committed to using the best available technology, including forensic science, whenever possible. Defendants should have access to DNA evidence in a variety of situations, he said.

In a reference to the U.S. Supreme Court's June 18 decision in District Attorney's Office v. Osborne, which found no constitutional right to post-conviction access to DNA evidence, Holder said, “Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.”

Here's a brief excerpt from Holder's speech:

I have also called upon the Department to focus on another part of the criminal justice system: the very difficult issue of indigent defense. Putting politics aside, we must address the fact that there is a crisis within our nation’s system of indigent defense. Resources for public defender programs lag far behind other justice system programs, constituting only about 3% of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. Defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. And we often hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly, and time-consuming, mistakes. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders in June, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions.

I have also made it clear that this Department of Justice will use the available data to improve our handling of the forensics sciences – such as fingerprints, trace evidence, and firearms matching. We are studying a recent report from the National Academies of Science that diagnosed problems in the use of forensics sciences and suggested ways forward, and we are working with our partners in the Executive Branch and Congress to act on the report’s insights and recommendations. Our goal is to ensure that forensic science is practiced at the highest level possible, and always in the pursuit of truth. Because we put a premium on truth-seeking and because this Administration is committed to using the best science possible whenever possible, including in criminal justice, I also believe that defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.

An earlier speech by Holder is noted in this post.

In Pennsylvania

Ron Todt of the Associated Press writes, "Natural causes biggest threat on Pa. death row," via the Philadelphia Inquirer.

Ten years ago, Gary Heidnik had two slices of cheese pizza and a couple of cups of black coffee, met with his daughter, and spent the rest of the day on his bed or pacing his cell. That night, he was given a lethal injection for imprisoning, torturing and murdering two women in the basement of his Philadelphia home.

In the decade since, Pennsylvania has executed no one. Its death row is the fourth-largest in the nation, yet the 218 men and five women are far more likely to die of natural causes than injected chemicals, gas, electricity or bullets.

Since the commonwealth reinstated the death penalty in 1978, three inmates have been executed; all had dropped their appeals. At least seven times that number have passed away, most of natural causes such as cancer or heart failure, while awaiting execution, according to an informal Corrections Department tally.

To find a Pennsylvania inmate unwillingly put to death, you have to go back almost half a century to the last use of the electric chair.

"I think it is indicative of a split , people want the death penalty but don't want a lot of executions," said Richard Dieter of the Washington-based Death Penalty Information Center.

It wasn't always so in Pennsylvania. The commonwealth has recorded more than a thousand executions in its history, starting with public hangings in the time of the early colonists. Hundreds were put to death in the electric chair during the first half of the 20th century.

And:

Defense attorneys say there's good reason for the modern reluctance, given recent high-profile exonerations of death row inmates. Last year, Nicholas Yarris, freed from Pennsylvania's death row in 2004 after 23 years behind bars on murder and rape convictions, reached a multimillion-dollar settlement with the county in which he was prosecuted.

"When you look at some of the people who have been exonerated, it's quite a frightening thing to know that we could have been executing an innocent person," said Charles Cunningham of the Defender Association of Philadelphia. "It's bad enough to put an innocent person in jail, but to take that person's life, it's horrifying."

A 2007 American Bar Association assessment noted such cases and chided the commonwealth for not taking steps to make erroneous convictions less likely, such as ordering preservation of biological evidence and recording interrogations. A state Supreme Court committee in 2003 called for a moratorium, saying minorities make up two-thirds of the inmates on death row.

New Jersey became the first state in four decades to abolish the death penalty in 2007, and New Mexico followed suit this year. Others are considering doing the same, citing not only concerns about possible execution of the innocent or bias in application, but also concerns about the cost of the system.

"You could be maintaining them in prison for less, but that's essentially what they are , they are in prison for life through an expensive process," Dieter said.

More from Pennsylvania here and here.

More Commentary From Robert Baldwin

The Alabama physician writes, "Don't stand for injustice," for the Montgomery Advertiser.  Here's an excerpt:

In addition, Alabama is one of only three states that allow a judge to impose a death sentence over a jury recommendation of life without parole, and it is the only state in which there are no guidelines or restrictions, or even a requirement for an explanation, which is something we usually don't get.

Here again, Alabama is out of step with the vast majority of states, unless you believe, as the attorney general's office apparently does, that everyone else is out of step but us. As well, rarely do we find a judge overruling a death sentence in favor of life without parole.

These are just two of the many serious problems that the American Bar Association and other groups studying our system have identified and called for action. The Bar Association released its report on Oct. 29, 2007, concluding that the Alabama death penalty system is "seriously flawed," and in a 265-page report gives the details.

Nearly two years later, the attorney general says he has not studied the report. Does he really want to study it? If he did, he would have to address it. Having said in the past that folks in Alabama just aren't concerned about the death penalty, that office sees no need to review this evidence, and it is incriminating.

Our state suffers from actions and inactions such as these. When the chief law official of the state and his aides fail to pursue truth and seek only political gain, all of us in this state are victims of this, not to mention the millions of dollars of our tax money spent just so these officials will not appear soft on crime in the next election.

More from Balwin, here and at his blog Life and Death Matters.  He is the author of the recently published, Life and Death Matters: Seeking the Truth about Capital Punishment,.  More on the ABA Alabama assessment, here.

ABA: Sotomayor Well Qualified

"American Bar Association gives Sotomayor top rating," is the Reuters report via the Washington Post.

The American Bar Association on Tuesday gave U.S. Supreme Court nominee Sonia Sotomayor its top rating, boosting her anticipated confirmation as the first Hispanic justice on the highest U.S. court.

The ABA said its Standing Committee on the Federal Judiciary based its unanimous "well qualified" evaluation on a review of Sotomayor's professional integrity, competence and judicial temperament.

The ABA evaluation is certain to mentioned repeatedly by Sotomayor's backers at her confirmation hearing next week before the Senate Judiciary Committee.

A federal judge the past 17 years, Sotomayor is expected to win confirmation by the full Democratic-led Senate, perhaps overwhelmingly, to replace David Souter, who announced in May his retirement as a Supreme Court justice.

The Senate Judiciary Committee is schedule to begin its hearing on her nomination on Monday, July 13. Earlier coverage begins here.  The National Law Journal has an excellent resource, "The Sotomayor Nomination."

As Certain as Death, Taxes and Secession

That's the headline from Georgia's Sunday Paper.  The article is subtitled, "State legislature hits old standbys: guns, executions, property taxes and breaking away."

The Georgia Legislature has been in session for a few weeks now and, thus far, the bills promising to cause the most controversy read like menu items from a political soul food restaurant--it's all familiar, yet strange. There's legislation declaring that life begins at conception, a bill mandating a swap of property taxes for sales taxes, and another prohibiting human implantation with microchips. Provisions for tax allocation districts and toll lanes that might support Speaker Richardson’s recent pledge for a statewide transportation solution deserve honorable mention. As does a budget slashed from top to bottom, reflecting the state’s lean economic times. However, the spiciest pieces of legislation filed to date concern those old Southern favorites: taxes, guns, executions and secession.

And:

In Georgia, a capital jury must decide unanimously that the aggravating circumstances of a crime warrant the death penalty in order to execute a prisoner. Failing such a unanimous consensus, the greatest punishment a court can dole out is life without parole. The passage of House Bill 32, though, would give Georgia voters the chance to roll back this requirement. The bill proposes a constitutional amendment that would make it possible to impose the death penalty based on a 10-2 or greater majority vote by a capital jury. 

In 2006, a report for the American Bar Association titled “Evaluating Fairness and Accuracy in State Death Penalty Systems” cited inaccurate jury instructions as a problem with Georgia’s death penalty system, stating that more than 40 percent of capital jurors did not fully understand how to apply mitigating evidence. Additionally, the Georgia Innocence Project has freed four wrongly convicted men from Georgia prisons in the past five years, and the execution of Troy Davis has been postponed three times in the past 18 months due to questions about his guilt.   

Rep. Tim Bearden (R–Villa Rica) says the possibility for mistakes does not make him nervous about making the death sentence easier to impose in Georgia. “It’s a world of DNA technology,” he says of the modern justice system. “I don’t have any reservations whatsoever.”

For Bearden, whose background is in law enforcement, this is largely an issue of victims’ rights to justice. “It seems like the victims are forgotten about, once the tape is rolled up,” he says. “We all know the wheels of justice turn slowly, but they should never grind to a complete halt.”

According to the Death Penalty Information Center, five states have executed more prisoners than Georgia since 1976. But, in 2008, only Virginia, which executed four, and Texas, which executed 18, carried out the death penalty more than Georgia did. That year, Georgia executed three.

Federal Judge Wants Fewer Capital Cases

That's the title of an article in today's New York Sun.  LINK

A sitting federal judge who is working on a book is calling on the Justice Department to ease off in pursuing the federal death penalty in New York City cases.

Speaking at an American Bar Association event yesterday, the judge, Frederic Block of U.S. District Court in Brooklyn, criticized the government for spending millions of dollars in pursuit of death sentences and ignoring what he said were New Yorkers' views on capital punishment. Washington often seeks death sentences when it has virtually no chance of success, he said, sometimes even over the objections of the local U.S. attorneys tasked with prosecuting the cases.

"The problem is, basically, New York has spoken against the death penalty with the exception of a situation involving a cop killing," he said, referring to the single instance in which a federal jury has rendered a death verdict in New York in recent years. The condemned man, Ronell Wilson, killed two undercover detectives.

Judge Block cited the fact that federal juries have been reluctant to impose death penalties in other trials. Since that February 2006 death verdict in the Wilson case, Judge Block's courthouse has hosted seven capital trials in which a jury has declined to impose a death sentence, which requires unanimity.

"Yet you go on and on and on and prosecute these cases," Judge Block, who was nominated to the bench by President Clinton, said.

And:

Judge Block's comments yesterday are some of his strongest public statements yet against the administration of the death penalty. While other judges have also asked the justice department to reconsider the death penalty in individual cases, Judge Block has emerged as the most vocal critic.

In 2006, Judge Block urged prosecutors not to seek the death penalty against a crack dealer who had ordered up two murders. A transcript of the remarks was discovered by reporters, resulting in significant news coverage. Shortly afterwards, Judge Block published an opinion piece in the New York Times describing the toll that death penalty cases exact on courthouse resources.

"It's just not cost-effective to willy-nilly strive for the death penalty," Judge Block said yesterday. "It really goes a long way toward hurting the functions of the court and the U.S. attorney's office in terms to being able to handle the rest of their criminal docket. It creates a serious problem."

A former federal prosecutor in Brooklyn, Loretta Lynch, also participated on the panel. She said the current Justice Department leadership appears more willing to disregard a local U.S. attorney's desire to waive the death penalty.

StandDown's federal death penalty index is here.