The StandDown Texas Project

Commentary on Judge Jones' Ethics Complaint

"Judge Edith Jones reportedly sees the death penalty as some kind of mercy," is New Orleans Times-Picayune columnist Jarvis DeBerry's take.

The death penalty. You've heard it called many things: Vengeance, barbarism, deterrence, justice. But even if you're a faithful, church-going Christian, you may never have heard the death penalty described as Edith Jones, a judge at the federal appeals court in New Orleans, is said to have described it in February. The death penalty, she reportedly said, is an accelerant toward salvation.

And:

Jones has long had a reputation for being rather stonyhearted toward death row inmates. In October 2000, she and another judge upheld the death penalty for Calvin Burdine, a Texas man whose lawyer had slept through much of Burdine's trial. But if she sees the death penalty as a blessing, maybe we should think of her as Burdine's spiritual advocate. She wouldn't have gotten an NAACP award for that ruling though, Burdine being white.

It's not that Jones refuted the testimony of the jurors and the clerk of court who agreed that Burdine's lawyer slept "a bunch" and for "long periods of time." But Burdine, according to a decision that got Jones' approval, had failed to show that his lawyer had napped during "a critical stage" of his trial.

If your life is on the line, you're probably inclined to think that every minute and every second of your trial is a critical stage. Appropriately, a majority of the 5th Circuit disagreed that the napping was no big deal and ordered a new trial for the defendant. Burdine struck a deal with prosecutors after that. In 2003 he pleaded guilty and got three life sentences. His lawyers said then that their client was happy that he was no longer facing execution.

Talking Points Memo posts, "Dem Rep Calls For Investigation Into Judge Accused Of Racial Bias," by Catherine Thompson.

Rep. Cedric Richmond (D-LA) called for an investigation into allegations that a federal judge made racially biased remarks in a speech at the University of Pennsylvania Law School on Wednesday, according to the New Orleans Times-Picayune.

And:

"The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis," Richmond wrote in the letter, as quoted by the Times-Picayune. "These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal."

Additional blog commentary includes:

'Allegedly Racist Judge Has a History of Saying Awful Stuff," by Jesse Lava at Huffington Post.  He's the Campaign Director at Brave New Foundation.

National Review Bench Memos blog posts, "A Disturbing Story About Judge Edith Jones," by  Gerard V. Bradley.

Earlier coverage of the controversy begins at the link.

Andrew Cohen on the Big Question in Colorado

"Time's Up: Colorado's Governor Needs to Pick a Death Penalty Position," is Andrew Cohen's latest post at the Atlantic.

In late March, the Democrats who control the Colorado House of Representatives thought they were on the verge of repealing the state's death penalty law, used sparingly but not without controversy since the Supreme Court reinstated it in 1976. "I have the votes in the House to pass the bill and it's not just partisan, it's bipartisan," said the repeal bill's co-sponsor, Representative Claire Levy (D-Boulder). But in a private meeting that week with lawmakers, Governor John Hickenlooper, his local chops high, his national stature growing, voiced doubt about the bill.

"He did not say, 'I will definitively, undoubtedly with no question veto this,'" Rep. Dan Pabon (D-Denver) told the Denver Post. "But he did say that is something he is bouncing around. He used the 'v' word." The "v-word" from the governor was enough to block the measure. "I think had the governor not signaled so strongly that he wouldn't sign the bill, I think we would have had those votes," Rep. Levy said. "We would have repealed the death penalty in Colorado, and I think we could all stand up proud and strong and know that we did the right thing."

Without even a public threat of a veto, Gov. Hickenlooper had imposed his will on the issue. And everyone in Colorado seems to have a theory about why. He didn't want the repeal effort to cloud the legislature's frenetic work on gun safety. He believes in capital punishment more than he has let on. He was saving his fellow Democrats from scorn in the next election. He genuinely thinks the issue should be resolved by a popular vote, which would almost certainly ensure that capital punishment stays a part of the state's sentencing scheme.

Whatever the case, the time for private vetoes and backroom maneuvering is over. The time has come for Gov. Hickenlooper to make a very public choice between life and death -- and, in so doing, to shape the contours of a debate that has sounded furiously all over Colorado for the past few months. In the next few weeks, perhaps even in the next few days, the governor will have to decide whether Nathan Dunlap, one of the state's most notorious murderers, lives or dies. And this time there will be no legislature to hide behind.

Earlier coverage of Nathan Dunlap's case begins with the previous post.

Thoughts on the the Texas Legislature

Today is the 133rd day of the 140-day legisltive session.  Sine Die - aka, adjournment - is Monday, May 27.  You can view the various deadlines that limit legislative activity as the days peel off the calendar.

Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center.  He recently joined the Center as a Fellow.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

The Austin Chronicle posts, "Junking Junk Science?"  It's by Jordan Smith.

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.

Former Prosecutor Backs Dunlap Commutation

"CO's Death Penalty System Too Broken to Use: Commute Dunlap's Sentence," is Richard Bloch's essay at Huffington Post.  He's the former Arapahoe County Chief Deputy District Attorney.

In the twenty years I spent with the Arapahoe County District Attorney's Office, I prosecuted dozens of homicides, including three death penalty cases. Based on my experiences, I believe that Colorado does not need and should not use capital punishment to maintain our public safety. I hope that Governor Hickenlooper commutes Nathan Dunlap's death sentence to life in prison without the possibility of parole.

Having worked on many homicides, visited dozens of murder scenes, and, most importantly, spoken to many people who have committed violent actions against others, I understand from personal experience what so many studies show: that there is no evidence whatsoever that the death penalty deters crime and enhances public safety.

My work experience convinces me that the threat of a death sentence does not deter criminal activity. In my years as a prosecutor and in my subsequent private legal practice, I have observed that some of the most egregious crimes are committed due to mental illness, desperation, overwhelming emotions, and political extremism -- none of which are subject to rational cost/benefit calculations, like weighing potential criminal sentencing consequences.

And:

Our system is broken. Something is clearly wrong with our state when all the death sentences are coming out of one county. We are in a crisis when our state, which is 4.3 percent African-American, has a death row that is 100 percent African American. A broken system has produced flawed results.

One of these results is Nathan Dunlap's death sentence. That is why I join so many other individuals and groups speaking out to support clemency in this case. The crime he committed was horrific, and he should spend the rest of his life in prison without the possibility of parole, to ensure public safety and severe punishment for his crimes. Yet we cannot ignore that the system that sentenced Mr. Dunlap to die is a system in crisis. Colorado can do better; Colorado is better than that.

Westword posts, "Nathan Dunlap clemency backers cite broad support as calls for death continue," by Michael Roberts.

The campaign to either save Nathan Dunlap from the death penalty or execute the man convicted of four brutal murders at a Chuck E. Cheese restaurant in 1993 has turned into something of a public-relations competition. As the Arapahoe District Attorney's Office continues to dole out statements from victims and associates who believe he deserves the ultimate punishment, Dunlap's advocates are working to humanize him even as they emphasize broad support for Governor John Hickenlooper to alter his sentence to life in prison without the possibility of parole.

You can view the clemency petition and other supporting documents in Nathan Dunlap's case at the link.

Earlier coverage of Nathan Dunlap's case begins at the link.

Florida News & Commentary

The Palm Beach Post publishes the editorial, "Scott should veto ‘Timely Justice Act’ on the death penalty."  It's by Randy Schultz for the Post Editorial Board.

In 2006, the American Bar Association showed Florida how to fix the state’s death penalty system in the best way. Having ignored those ideas for seven years, the Legislature now proposes to fix the system in the worst way.

Heading to Gov. Rick Scott is House Bill 7083, titled “The Timely Justice Act.” Rather than seek to make sure that executions are carried out fairly, the legislation seeks to have executions happen sooner. In the state with the most exonerations from Death Row — 24 since 1979 — this would be like giving Bernie Madoff a new line of credit.

Rep. Matt Gaetz, R-Fort Walton Beach, is the sponsor of HB 7083. As he put it, there are “problem judges” and lawyers who needlessly drag out Death Row appeals. It is true that of the 405 people awaiting execution, 16 committed their crimes before 1980. But as the legislative staff said in analyzing the bill, the average time between conviction and execution in Florida is 13.22 years, less than the national average.

HB 7083 rests on another faulty premise: All capital punishment cases are the same. A current case is the latest to debunk that premise.

Gov. Rick Scott has signed a death warrant for William Van Poyck. In 1987, as an inmate at Glades Correctional Institution, Van Poyck tried to escape from a doctor’s office in West Palm Beach. Guard Fred Griffis was shot and killed. Van Poyck should be in prison for life. But last week, the wife of the other inmate in the incident backed up Van Poyck’s story that he didn’t fire the fatal shot.

And:

Seven years ago, the American Bar Association recommended that Florida require a 12-0 jury vote to recommend a death sentence, as is required for conviction. Currently, a simple majority is enough to recommend death. That inconsistency is only one reason why Florida has a flawed capital punishment system. Gov. Scott should veto HB 7083 because justice matters more than timeliness.

Syndicated columnist Leonard Pitts writes, "On death penalty, wrongly accused are victims, too."  It's via his home paper, the Miami Herald.

At great political peril, George Ryan did the right thing.

Not to canonize the man. After all, the then-governor of Illinois was later imprisoned on corruption charges.

But that doesn’t change the fact that, in 2000, stung that 13 inmates had been exonerated and freed from death row in the previous 23 years, Ryan committed an act of profound moral courage, imposing a moratorium on capital punishment. In 2003, in the waning days of his term, he one-upped himself, commuting every death sentence in his state.

Recalling what Gov. George Ryan once did provides interesting context as Floridians and death penalty opponents around the country wait to see what Gov. Rick Scott will do.

Florida’s chief executive has on his desk awaiting his signature — or, dare we hope, his veto — a piece of legislation called the Timely Justice Act, passed by his state legislature in the apparent belief Florida is not killing people fast enough.

There are 404 people awaiting execution in Florida. We learn from a report by my colleague, Mary Ellen Klas, that 155 of them have been there longer than 20 years, and 10 have been there longer than 35 years. The average wait:13 years.

And:

Read more here: http://www.miamiherald.com/2013/05/18/3402949/on-death-penalty-wrongly-accused.html#storylink=cpy

More to the point, there’s this: Since the death penalty was reinstated in the mid-70s, Florida has executed 75 people. But it has exonerated 24, many of whom spent more than a decade on death row. According to the Death Penalty Information Center, Florida has the highest error rate in the country.

So how can a state that gets it wrong at least one time in every four want to speed up the process? Does no one care about the increased likelihood of executing someone who committed no crime?

We are always called upon to be solicitous of the pain suffered by victims’ families. Where is our solicitude for innocent people, wrong place, wrong time, people — usually indigent people of color — who are rushed, perjured, bumbled, erred and “oopsed” onto death row? Why does their pain affect us less? Why are they less deserving of our compassion? Are they not victims, too?

"Gov. Rick Scott speeds up warrants for Death Row inmates," is by Steve Bousquet, Tallahassee Bureau Chief for the Miami Herald and the Tamp Bay Times.

Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades.

Scott and his chief legal adviser say they are doing nothing unusual. But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty.

“In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “It appears that every 10 days, Gov. Scott is signing a death warrant.”

And:

The timing of death warrant signings, and which inmates are chosen, has long been shrouded in mystery in Florida, and has been a subject of consternation among lawyers who represent Death Row inmates. Inmates are allowed to appeal their convictions in both the state and federal courts, and every case undergoes an investigation by the Florida Parole Commission before the governor can sign a death warrant.

But in case after case, the Florida Supreme Court has rejected claims that the death penalty selection process is arbitrary or without standards, and the court has upheld the governor’s “unfettered discretion to select inmates for execution,” as it noted last week in the case of Elmer Carroll, condemned to die for the rape and murder of a 10-year-old girl in Apopka in 1990.

AP coverage is, "Gov. Scott steps up pace on signing death warrants," by Brendan Farrington.  It's via the Tallahassee Democrat.

Gov. Rick Scott is signing death warrants at a pace rarely seen in Florida since the death penalty was reinstated in 1976.

Scott already has signed five death warrants this year, including three in a recent span of less than four weeks.

“I go through them and when people have exhausted their appeals and when they’re finished with their clemency process, then I continue to move the process along,” Scott said.

But death-penalty opponents see the surge in death warrants signed as upsetting.

“He’s clearing out death row,” said the Rev. Phil Egitto, a Roman Catholic priest from Daytona Beach who organizes protests at each execution. “It’s very, very crazy. It’s very unusual. It is my understanding that Gov. Scott wants to be hard on crime, but I don’t think this is the answer.”

So far only one of the five condemned men has been executed — Larry Eugene Mann was put to death by lethal injection last month for kidnapping and murdering 10-year-old Elisa Vera Nelson on Nov. 4, 1980. Still, there are five active warrants. Scott signed John Errol Ferguson’s death warrant last year, but the execution has been delayed as his lawyers seek appeals. Florida law states that once a warrant is signed, it remains in full effect even if the initial execution date passes.

If the sentences are carried out this year for each of the active warrants, it would guarantee at least the most executions in Florida in one year since six people were executed in 2000, Gov. Jeb Bush’s second year in office.

David A. Love of  Witness to Innocence writes, "Florida's Timely Justice Act Is Neither Timely Nor Justice," for Huffington Post.

George Orwell himself could not have come up with a more deviously named piece of legislation than Florida's ill-advised Timely Justice Act. In the world of doublespeak, it conveys the image of efficiency, effectiveness and fairness, while doing exactly the opposite. Surely, its sponsors wanted to misrepresent and mislead, confuse and obfuscate, and change the subject. Here's why:

The bill -- passed by the Florida legislature and now awaiting the signature of Governor Rick Scott -- would expedite the death penalty process in the Sunshine state. This bill would radically change the death penalty process by taking the power of issuing execution warrants out of the hands of the governor, in favor of an automatic timetable to determine which death row prisoner is next scheduled for execution. The Act would require the governor to sign an execution warrant within 30 days of review by the State Supreme Court. And the state of Florida would be compelled to execute the defendant within 180 days of the warrant.

Supporters say that death penalty appeals take too long, perhaps as long as 20 years, and point to this reality as proof the system is broken.

However, by placing death row prisoners on a fast track to execution, the Timely Justice Act will only increase the risk of executing the innocent. Florida has distinguished itself as the state with the highest number of prisoners exonerated from death row -- 24 out of the 142 individuals exonerated nationwide since 1973.

Earlier coverage of the Florida legislation begins at the link.

DSM-5 News & Commentary Roundup

ReutersLegal posts, "Psychiatrists unveil their long-awaited diagnostic 'bible'," by Sharon Begley.  It's an excellent overview of the debate raging over the new publication.

The long-awaited, controversial new edition of the bible of psychiatry can be characterized by many numbers: its 947 pages, its $199 price tag, its more than 300 maladies (from "dependent personality disorder" and "voyeuristic disorder" to "delayed ejaculation," "kleptomania" and "intermittent explosive disorder"), each limning the potential woes of being human.

But to the psychiatrist who shepherded the tortuous creation of the "Diagnostic and Statistical Manual of Mental Disorders," perhaps the single most important number is the "5" in its title: This is the DSM-5, not the DSM-V.

That may seem like a cosmetic change, but the American Psychiatric Association, which will release the book on Saturday at its annual meeting, decided to use Arabic instead of Roman numerals because "we want it to be a living document," said Dr David Kupfer of the University of Pittsburgh, the chairman of the task force that produced the DSM-5. Rather than waiting another generation to revise the manual - the DSM-IV was published in 1994 - psychiatrists will regularly update it with, for example, findings from genetics and neuroscience, labeling the revisions DSM-5.1 and DSM-5.2 and so on.

"We used '5' because V.0 and V.1 just don't look good," said Kupfer.

The fact that the world's most powerful psychiatrists (their decisions determine what counts as a mental disorder, and thus what insurers cover and which children receive special services in school) are already building in ways to change the manual is commendable, even its critics say.

"Lawyers worry new measure of mental retardation could prompt more executions," by Elizabeth Dilts is also from ReutersLegal.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

The Sunday New York Times Week in Review published the OpEd, "Why the Fuss Over the D.S.M.-5?"  It's by Sally L. Satel, M.D.

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

So why the fuss over D.S.M.-5? Because of the unwarranted clout that its diagnoses carry with the rest of society: They are the passports to insurance coverage, the keys to special educational and behavioral services in school and the tickets to disability benefits.

 

The New York Times also has news coverage, "Psychiatry’s Guide Is Out of Touch With Science, Experts Say," reported by Pam Belluck and Benedict Carey.

Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific “lack of validity.”

The expert, Dr. Thomas R. Insel, director of the National Institute of Mental Health, said in an interview Monday that his goal was to reshape the direction of psychiatric research to focus on biology, genetics and neuroscience so that scientists can define disorders by their causes, rather than their symptoms.

While the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is the best tool now available for clinicians treating patients and should not be tossed out, he said, it does not reflect the complexity of many disorders, and its way of categorizing mental illnesses should not guide research.

“As long as the research community takes the D.S.M. to be a bible, we’ll never make progress,” Dr. Insel said, adding, “People think that everything has to match D.S.M. criteria, but you know what? Biology never read that book.”

The revision, known as the D.S.M.-5, is the first major reissue since 1994. It has stirred unprecedented questioning from the public, patient groups and, most fundamentally, senior figures in psychiatry who have challenged not only decisions about specific diagnoses but the scientific basis of the entire enterprise. Basic research into the biology of mental disorders and treatment has stalled, they say, confounded by the labyrinth of the brain.

"DSM, NIMH on mental illness: both miss relational, historical context of being human," is by Claudia M Gold for the oston Globe Child in Mind blog.

It seems that the National Institute of Mental Health (NIMH) may have dealt a death blow to the recently published Diagnostic and Statistical Manual of Mental Disorders (DSM 5) when the organization declared they would no longer fund research based on the DSM system of diagnosis. The views of NIMH director Thomas Insel were referenced in the recent New York Times article on the subject.

And:

I am no fan of the DSM system, which reduces complex experience to lists of symptoms; focusing on the "what" rather than the "why."  However, the NIMH model has limits as well. There seems to be a wish to study mental illness in the same way we study cancer or diabetes. While I certainly have great respect for the complexity of the pancreas, or the process of malignant transformation of cells, trying to understand the brain/mind in an analogous way seems to be an unnecessary and even undesirable reduction of  human experience.

What is missing from both paradigms is recognition of the relational and historical context of being human.

Earlier coverage of the DSM-5 begins at the link.

More Calls for Florida Veto

Today's Tallahassee Democrat publishes the editorial, "Speed vs. justice: Be cautious in accelerating executions."

Just about the time that many Florida voters again grow tired of the endless appeals and delayed executions of those on Florida’s Death Row, along comes somebody like Clemente Javier “Shorty” Aguirre.

The Legislature passed House Bill 7083, known as the Timely Justice Act, this session in part to speed up the process that leads to an execution. There is no denying that the process can be a long one.

And:

Since 1973, Florida has seen 24 people exonerated after being on Death Row, according to the Death Penalty Information Center. The Florida Bar has adopted a resolution asking the state to initiate a review of the state’s death penalty process.

General debate about the death penalty can wait for another day. But the state must never execute an innocent person.

Speeding up justice is a laudable goal. Speeding up a malfunctioning justice system might not be.

"Protect the Innocent: Florida's Governor Must Veto the 'Timely Justice Act', is by Juan Melendez at Huffington Post.  He was exonerated in Florida in 2002, and works with Witness to Innocence.  Here's the beginning of this must-read:

When I was arrested for a murder I didn't commit, I had alibi witnesses placing me elsewhere at the time of the crime. There was no physical evidence tying me to the bloody crime scene. The only evidence that the state of Florida presented against me were two questionable witnesses: a paid police informant and another who falsely implicated me and others under the threat of the electric chair. In exchange for his testimony against me, he received two years' probation.

My trial took less than a week. I was sentenced to death. I spent nearly 18 years on death row, a traumatic and heartbreaking time for me and my family.

Although my mother prayed that my innocence would one day be proven and I would be released, she also saved money to take my body home to Puerto Rico and bury me there.

I never stopped fighting for my freedom. After 16 years on death row, the case against me finally fell apart when critical evidence was discovered, including a transcript of a taped confession by the real killer, along with other exculpatory evidence that the prosecutor had withheld from my attorneys.

Shockingly, up until this point, the Florida Supreme Court had upheld my conviction and death sentence three times on appeal. I was saved by the grace of God or, as some would say, "pure luck."

Finally, after almost 18 years on death row, the truth about my innocence came out. I was exonerated, and today I am a free man.

What happened to me has happened to many other people as well. Florida leads the nation in exonerations in death penalty cases. Twenty-four innocent people have been freed from our death row, including myself.

An AP report, previously linked, has been updated and expanded. "Ex-death row inmates: Veto Timely Justice Act," is by Kelli Kennedy, via the Palm Beach Post.

The bill, which was recently passed by the Republican-led Legislature, essentially minimizes the time between sentencing and execution by creating tighter timeframes for appeals and post-conviction motions and by imposing reporting requirements on case progress. The measure also re-establishes a separate agency for north Florida to provide appellate-level legal representation to inmates sentenced to death, and requires them to "pursue all possible remedies in state court."

It would also require a governor to sign a death warrant within 30 days of a State Supreme Court review of a capital conviction. The state would be required to execute the defendant within 180 days of the warrant.

The law comes as Florida's capital punishment process has come under intense scrutiny and has been criticized for allowing some condemned inmates to languish for decades on death row. A New York Times editorial published Tuesday said the bill was "grotesquely named."

Florida has exonerated 24 men on death row since 1973, more than any other state, according to the Death Penalty Information Center.

Florida now has 405 inmates on death row, more than any other state except California. It takes an average of 13 years for an inmate to move from sentencing to execution.

Salon posts, "Florida law would speed up executions," by Natasha Lennard.

For the past two years in a row, Florida has sentenced more people to death than any other state — owing to a number of issues in the state justice system including the fact that while a judge makes the sentencing decision, Florida is one of only three states that allows non-unanimous jury recommendations in capital sentencing.

The Florida Supreme Court and the Florida Bar have called for reviews of the death penalty process in the state in order to make recommendations to improve it; those studies have yet to be undertaken. In 2009, meanwhile, the American Bar Association did study capital punishment in Florida, none of which have been undertaken either. Capital punishment, especially when exacted through a flawed judicial process like Florida’s, is already barbaric; it needs no acceleration.

Earlier coverage from Florida begins at the link.

The Dust-Up in the Senate Criminal Justice Committee

"Drama in committee hearing — Sen. Joan Huffman chewed out by witnesses on exoneree bill," is Rodger Jones' post at the Dallas Morning News Opinion blog.

Sen. Joan Huffman was chewed out today by witnesses at a Senate hearing after she hit a nerve about whether the state is doing enough to fight wrongful convictions.

One of the witnesses was Cory Session, brother of Timothy Cole, the state’s only posthumous exoneree, who raised his voice at her and said he was “pissed off” and “sickened” at her opposition to a bill (HB 166) to establish a wrongful convictions panel.

Huffman was chairing the Senate Committee on Criminal Justice at the time, and she flat out dumped on the bill as unnecessary. Angered and agitated, Session ended his testimony by telling Huffman she needed to get another job, and he stormed off.

The emotion boiled over after a long recitation by Huffman, R-Houston, in which she listed the various justice reforms that the Legislature has passed over the past 12 years, essentially saying enough is enough. It was a tedious beatdown. Huffman may have thought supporters of the bill would be impressed and mollified, but some of them obviously were insulted by her tactic.

Huffman, a former judge, was addressing bill sponsor Sen. Rodney Ellis, D-Houston, who is carrying the House-passed bill in the Senate. The bill would create a panel to study wrongful convictions and recommend improvements in the justice system.

Next came the witnesses. Four exonerees and Session walked to the witness table, and Session went first. He reached a boil fast.

Click to read the rest of the post and Jones' transcription of the hearing.

You can also view the archived video of Tuesday's Senate Criminal Justice Committee meeting, using Real Player.  Sen. Rodney Ellis begins testimony on HB 166 at about 2:33 into the hearing. You can slide the bar at the bottom of the screen to fast forward to that point.

Earlier coverage of the Committee meeting and this Texas legislative session begins at the

 

More Commentary From David Love

"Putting the Brakes on Philly's Death Penalty," is David Love's latest essay at Huffington Post.  Here's an extended excerpt from the beginning of this must-read:

Witness to Innocence is a national organization originally founded as a project of Sister Helen Prejean of the book Dead Man Walking. Our mission is to empower exonerated death row survivors and their loved ones to become leaders in the death penalty abolition movement. We provide a support network for our members, each of whom spent an average of 10 years on death row for a crime they did not commit.

WTI members speak to audiences throughout the country about their experiences on death row, testify before state legislatures, work with state abolition groups and change hearts and minds in the process. WTI has been involved in successful death penalty repeal efforts in six states over six years.

In Maryland, my advocacy director Kirk Bloodsworth and I stood with Gov. Martin O'Malley as he signed the state's death penalty repeal bill into law. We stood with abolitionists and Democratic and Republican lawmakers in Annapolis who realize the death penalty doesn't work. The government should not be in the business of killing people, and we oppose executions under any circumstances. Capital punishment is expensive, and discriminates against the poor and people of color. And most of all, innocent people are put to death.

So, why are we here? WTI decided to convene the Philadelphia Moratorium Campaign, a diverse coalition of religious leaders, human rights and civil liberties organizations, prisoners' rights groups, legal defense organizations, community groups and others.

We are calling on Philadelphia District Attorney Seth Williams to place a moratorium on death penalty prosecutions in this city. In addition, we are planning a public outreach campaign, in which death row exonerees will go out to the communities in this city, talk to the people and to lawmakers and educate them about the problems with the death penalty.

Once again, why are we here today? We are here because Pennsylvania is a leader in the death penalty. About 200 people are on death row, fourth behind California, Florida and Texas.

Earlier commentary from David Love begins at the link.

Jeanne Woodford on California Legislation

"Breaking Bad: Death Penalty Desperation," is Jeanne Woodford's latest at Huffington Post.  She's executive director of Death Penalty Focus, and a former warden at San Quentin State Prison.

What do the gas chamber, state secrets and illegally manufactured drugs all have in common?

They are all in Senator Joel Anderson's preposterous new bill, SB 779, sponsored by the California District Attorneys' Association.

The measure is likely to fail but it's the clearest evidence yet that California's death penalty is broken beyond repair -- and that the only sane choice is to replace it with life in prison without possibility of parole.

SB 779 is 35 pages long and proposes changes to 27 different code sections. It's a massive, delusional overhaul of nearly every aspect of California's wrecked and expensive death penalty system--from small things like how a transcript is reviewed, to big things like whether the Supreme Court can review a case at all.

But the most deranged proposal made by the California District Attorneys' Association in SB 779 is that we bring back gas chamber executions to California.

Earlier coverage of the California legislation begins at the link.

Arizona AG Seeks Expedited Review Under AEDPA

The Arizona Republic reports, "Horne may sue over habeas corpus," by Lindsey Collom.

Arizona Attorney General Tom Horne is threatening to sue the Obama administration over delays in habeas corpus proceedings that he says routinely and unnecessarily prolong the death penalty from being carried out in the state.

Horne contends that Arizona qualifies for expedited federal habeas corpus, a writ ordering a person in custody to be brought before a court, because its system for appointing defense counsel meets criteria set in federal law. But some legal experts say Horne’s timing is off and his argument ill-founded because the Department of Justice has yet to create a mechanism to determine a state’s eligibility.

In a letter issued Thursday, Horne gave U.S. Attorney General Eric Holder a 90-day deadline to respond to his request that Arizona be certified to take advantage of expedited federal review of capital cases as guaranteed in the Antiterrorism and Effective Death Penalty Act of 1996.

The act was designed in part to streamline federal appeals for convicted criminals sentenced to death. The expedited review is eligible to states that provide qualified, well-compensated attorneys to death-row inmates moving through the appeals process.

And:

Dale A. Baich, an assistant federal public defender who represents death-row prisoners in federal habeas corpus proceedings, said the cases deserve careful attention from the courts. “These cases are very complex and very serious, and the federal courts need to give each case the consideration that’s due,” Baich said.

"Horne plans to sue Federal Government if they don't expedite capital cases," is by Andrew Michalscheck of AZ Family.

Arizona Attorney General Tom Horne announced Thursday that he plans to sue the Federal Government if they don’t expedite their handling of capital cases.

Horne said he will file a lawsuit if the government doesn’t approve within 90 days Arizona’s application to qualify for expedited review of capital cases.

Horne notes that it’s important to not force the families of victims to suffer while they wait for justice to be done.

“The studies show that families suffer from something like Post Traumatic Stress Syndrome, and can heal faster if they see justice done within a reasonable period of time,” said Horne. “If they are victimized a second time by endless delays in the Federal Courts, that adds to their pain.”

Horne points out that in the last seven capital cases Federal Habeas Corpus has delayed justice being done by 10 to 13 years.

Horne's letter to U.S. Attorney General Eric Holder is available in Adobe .pdf format.

"Arizona AG Takes A Momentous Step Toward An Effective Death Penalty," is Kent Scheidegger's post at the Crime and Consequences blog.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door.  President Obama's Justice Department rescinded them and has dithered ever since.  The dithering is not over the rules of procedure the statute actually authorizes DoJ to make but rather over the rules of substance that Congress has forbidden DoJ to make.

Related posts are in the AEDPA index.

No Progress on Florida Death Penalty Jury Legislation

"Florida bill would require unanimous vote for death penalty," is by Kathryn Varn for the Florida Alligator.

Bills that would require a unanimous vote to sentence someone to death haven’t budged in the state House of Representatives and Senate.

Current law stipulates that juries only need a majority vote to sentence a person to death. Florida is the only state with that minimum of a requirement, which has Florida Sen. Darren Soto (D-Kissimmee) concerned. Soto co-introduced SB 148 in December. It was referred to committees but never made it to a vote in any of them.

“Just keep in mind, the folks who are getting a death penalty are getting life in prison,” he said. “Whether they should be executed or not is another question.”

Soto said Florida has seen many people exonerated by DNA evidence, which suggests there needs to be more safeguards in the system.

Katheryn Zambrana, a UF criminology professor, sees more safeguards as a positive thing, which the proposed legislation provides for in more than one way.

Zambrana explained the jury must first unanimously agree the defendant is guilty. In order to sentence the defendant to death with the current law, a jury determines if the aggravating circumstances, such as if a murder was premeditated, outweigh the mitigating circumstances, like if a defendant had a history of child abuse or mental illness.

With the proposed legislation, a jury would have to unanimously prove each aggravating circumstance beyond a reasonable doubt and all agree to issue the death penalty.

“The process is longer, but I think it’s better,” Zambrana said. “It’ll reduce the likelihood of wrongful conviction and will ensure that jurors are sure in their conviction.”

And:

In Tallahassee, HB 961 sponsor Rep. Mark Pafford (D-West Palm Beach) said he’s disappointed the bill hasn’t moved.

Earlier coverage of Florida death penalty legislation begins at the link.

For more on Florida capital punishment issues, there isthe multimedia blog, Punishable by Death.

Criminal Discovery Legislation Clears Texas Senate

The Austin American-Statesman has published the editorial, "Texas Senate’s attempts to limit wrongful convictions commendable."

Its passage wasn’t as sure as it should have been, given that it was as much a no-brainer as any piece of legislation could be, but this week the Senate finally and unanimously passed the Michael Morton Act.

Morton was on hand for the occasion Thursday. He stood, as the American-Statesman’s Chuck Lindell reported, in a Capitol corridor while holding the gavel Lt. Gov. David Dewhurst had used minutes earlier to announce approval of the legislation named in his honor. The vote, coming 18 months after Morton’s release from prison, was 31-0.

It’s hard to imagine opposition to a bill designed to prevent wrongful convictions by requiring prosecutors to share crucial information with defense attorneys, but the Michael Morton Act appeared doomed Wednesday until a delicate compromise, prodded along by Dewhurst, appeased concerns by district attorneys that the bill threatened the safety of witnesses and victims in some cases. So lawmakers added a few restrictions to shield some identities.

Point taken on protecting the potentially vulnerable. Now the House should follow the Senate’s lead and pass the Michael Morton Act.

Let's begin news coverage of the vote with the Statesman report, "Senate passes Michael Morton Act," by Chuck Lindell.

Wednesday’s intense negotiations — including not-so-gentle prodding by Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation.

“It feels very, very good of course, but I know we’re not through. We have the other side to go through, the House,” Morton said.

State Rep. Senfronia Thompson, a highly respected 20-term Democrat from Houston, will shepherd the bill through the House.

Morton will be there, too, hoping that the agreement forged by prosecutors, defense lawyers and a half-dozen senators will find relatively easy acceptance.

The Texas Tribune posted, "Senate Unanimously Approves Michael Morton Act," by Brandi Grissom.

A year and a half after he took off his prison whites for the last time, exoneree Michael Morton stood in the Senate beside his wife, Cynthia, on Thursday as lawmakers in that chamber unanimously approved a bill named in his honor that aims to prevent others from being wrongfully convicted. 

"Had this been in place when I was arrested, I probably wouldn't have gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.

"Michael's tragic case brought to the forefront something we already knew in Texas," Ellis said. "Our criminal discovery process in Texas needs serious reform."

And:

Today — as in 1987 when Morton was tried — prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Though many Texas prosecutors have some form of open file policy, those procedures vary from county to county and sometimes even within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Since his release from prison, Morton has been on a mission to see the implementation of laws that help prevent wrongful convictions like his and that hold prosecutors accountable when their decisions result in innocent people losing years of liberty. The Senate has already approved SB 825, by Sen. John Whitmire, D-Houston, which would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. That measure is awaiting a hearing Monday in the House Committee on Judiciary and Civil Jurisprudence.

"Senate OKs bill to share DA case files with defense," was the AP filing written by Will Weissert, via the Fort Worth Star-Telegram.

The Senate unanimously approved the Michael Morton Act, named in honor of a Texan who spent nearly 25 years in prison for a murder he did not commit and designed to prevent future wrongful convictions.

After their vote Thursday, senators stood and applauded and Lt. Gov. David Dewhurst banged a specially engraved wooden gavel that was later awarded to a beaming Morton, who watched the proceedings from just off the floor -- a long way from the prison cell he was sitting in two years ago.

The measure now heads to the House for consideration.

Dallas Morning News editorial board member Rodger Jones posted, "Michael Morton Act passes Senate unanimously," on the Views blog.

Ellis, a Houston Democrat, co-author with Sen. Robert Duncan, Republican of Lubbock, credited Morton for using his “life’s tragedy” to lobby strongly for the bill, SB 1611.

The legislation updates, broadens and clarifies the access defense attorneys have to case files compiled by prosecutors. Morton spent nearly 25 years in prison for the murder of his wife, but has maintained in court that the DA kept vital information from him. Morton was freed after DNA tests cleared him in 2011, despite years of efforts by the DA’s office to keep evidence away from him for testing.

Ellis told the Senate that he thought months of work on the bill was lost a few times, especially in the last week, after Sen. Joan Huffman, R-Houston, began lobbying for changes after the bill already emerged from committee. One key to breaking the impasse, I’m told, was Dallas Sen. Royce West, a former prosecutor, who got involved in a come-to-Jesus meeting among negotiators on Monday.

"Ken Anderson court of inquiry resumes April 19," is from the American-Statesman.

A moment of truth for district court judge Ken Anderson is expected to arrive April 19, when the court of inquiry investigating his alleged wrongdoing reconvenes.

At 1 p.m. at the county’s Justice Center in Georgetown, Judge Louis Sturns is to hear closing arguments from attorneys, as he considers whether Anderson – in his prior role as district attorney – withheld evidence during Michael Morton’s 1987 murder trial. The judge has three issues to consider: whether Anderson tampered with physical evidence, if he tampered with a government record and/or he committed contempt of court.

If Sturns rules Anderson did any of these, it’s possible Anderson could face misdemeanor or felony criminal charges, but Sturns would also have to rule statutes of limitations have not passed.

The court of inquiry – which was first in session Feb. 4-8 – is not an actual trial.

“This is like a public grand jury proceeding and the judge is like the sole person on the grand jury,” one lawyer familiar with the case said this week. “He [Sturns] can say, ‘This should go forward [for prosecution].’ The standard for that is, ‘Is there probable cause?’”

Throughout five days of February testimony, special prosecutor Rusty Hardin produced witnesses who testified as to what they did and did not know before and during Morton’s February 1987 trial.

Earlier coverage of the Texas criminal discovery legislation begins at the link; also available, more information from this Texas legislative session, coverage of Michael Morton's exoneration, and the Anderson Court of Inquiry.

RJA Developments From North Carolina

The Wilmington Star News publishes the editorial, "Thoughts on a week of legislative mayhem in Raleigh."  One section, "Turning back the clock," deals with the Racial Justice Act.

Despite ample and convincing evidence that race often is a factor when juries hand down death sentences, the state Senate voted last week to repeal the Racial Justice Act. North Carolina was a leader when it passed; now it is swimming against a slow but growing tide of states that question how fairly and how accurately the death penalty is applied. Three North Carolina inmates were able to convince a judge under the Racial Justice Act that prosecutorial exclusion of qualified blacks and other race-based factors likely made the difference between life and death sentences. And the list of convicted inmates whose names have since been cleared is getting longer, suggesting that our system is more imperfect than we care to admit.

Yet senators, led by Wilmington's own Thom Goolsby, chose to reinstate the potential for bias.

"Senate Bill 306 Sponsor Says R.J.A. Is Wrongly Removing People From Death Row," is by Ran Northam at Chapelboro.

Capital punishment is on its way back to North Carolina and one proponent says it’s been avoided for years for the wrong reason.
 
“We do have the death penalty here in North Carolina,” says the Republican Senator from District 9, Thom Goolsby, the primary sponsor of Senate Bill 306, entitled Capital Punishment/Amendments. “We have 150-plus people on death row, and no one has been executed since 2006 due to a defacto moratorium for a number of reasons, primarily something called the Racial Justice Act, which is not about race and it’s not about justice. It’s an attempt to do an end-run around the death penalty and end it.”

The ACLU Blog of Rights posts, "Justice Under Attack: The North Carolina Legislature Takes Aim at the Racial Justice Act," by Cassandra Stubbs.  There is video at the link.

In 2009, North Carolina made history by becoming the first state to pass a law that addressed the systemic problems of racial discrimination in jury selection in capital cases. In the three years since the Racial Justice Act (RJA) was enacted, this law has uncovered systemic discrimination. In four cases, North Carolina death row inmates presented sweeping evidence that racial discrimination in jury selection tainted their trials, and had their death sentences converted to life without parole under the law.

Earlier coverage from North Carolina begins at the link.

The Voices of the Exonerated

David Love posts, "Building the Grassroots Foundation to Abolish the Death Penalty," at Huffington Post.  He's the Executive Director of Witness to Innocence.

I'm the Executive Director of Witness to Innocence. WTI was founded 10 years ago, originally as a project of Sister Helen Prejean of the book and the film Dead Man Walking. The mission of WTI is to empower exonerated death row survivors and their loved ones to become effective leaders in the movement to abolish the death penalty. WTI is the only nonprofit of exonerated death row survivors and their families. Our members spent an average of 10 years on death row for crimes other people committed. Since 1973, 142 death row prisoners in the U.S. have been released due to innocence.

Witness to Innocence has two purposes: First, we serve as a support network for former death row prisoners, and seek justice for the wrongfully convicted, including state and federal compensation. Second, our members work with state abolition groups across the country, testify before legislatures, and speak to audiences across the nation about their experiences and the compelling issue of innocence and the death penalty. WTI and its members were involved in repeal efforts in New Jersey, New Mexico, New York, Illinois, Connecticut and most recently Maryland. And we're involved in Delaware, Colorado, Montana, Kansas, Arkansas, Alabama and other death belt states.

Related posts are in the abolition, exoneration, and innocence category indexes.

Maryland Repeal Reverberations

"The right path on death penalty," is the title of the editorial published in today's Virginian-Pilot.

Maryland lawmakers voted this month to repeal the state's death penalty. If Gov. Martin O'Malley signs the bill, as promised, Maryland will be the sixth state to abolish the death penalty in six years - and will join 17 other states in doing away with a punishment fraught with errors and racial disparity.

Maryland's history of crime and punishment is worth noting. By 1999, O'Malley said, "Baltimore had become the most violent and drug-addicted city in America." The death penalty was being used then, but it had done nothing to stop decades of rising violence. In fact, the death penalty was imposed so haphazardly that between 1995 and 2007, Maryland's reversal rate for death sentences was 80 percent.

What has brought down violent crime? "Effective policing, expanded drug treatment, smarter strategies, new technologies to solve crime and target repeat violent offenders," O'Malley wrote in a column for Politico.

And:

Executions serve society's basest instincts: fear, revenge, retribution. They don't make us safer. They cost three times as much as a life sentence.

Maryland has pointed the way to a more just system. Virginia would be wise to follow.

The MSNBC program NOW with Alex Wagner posts, "Support for death penalty on the decline," by Matthew Alexander.

Maryland’s Democratic Governor Martin O’Malley will soon sign legislation passed by the state’s Senate and House of Delegates that will make it the 18th state to abolish the death penalty.

On Monday’s NOW with Alex Wagner, the panel discussed the current debate surrounding capital punishment, which has largely focused on issues of cost.

A 2008 study by The urban Institute found that in Maryland, cases where the death penalty was pursued by prosecutors ended up costing taxpayers three times as much as cases seeking life without the possibility of parole.

The number of Americans supporting the death penalty, while still a majority, has also been in decline. According to Gallup, 63% of American support the death penalty, while 32% are opposed. However, support for capital punishment has declined markedly from a high of 80% in 1994.

The waning support has played itself out on the state level as five states–Connecticut, Illinois, New Jersey, New Mexico and New York–have all abolished capital punishment in the last six years.

David Protess posts, "Executing the Death Penalty," at Huffington Post.  He's President of the Chicago Innocence Project, and a regular poster at HuffPo.

In the spring of 1999, a French journalist was in Chicago to write about the latest death row exoneration and, as our lunch concluded, made a stunningly bold prediction. "Your country will abolish capital punishment in the next 25 years," she declared.

Laughing, I reminded her that public support for the death penalty was at an all-time high, capital punishment was the law in 38 states and most of them were routinely performing executions.

She waved her hand dismissively, pointing out that her country had been beheading prisoners since the French Revolution until, for economic and moral reasons, the death penalty gradually fell into disuse in the 1970s and was finally abolished. Same thing had happened throughout Europe. "Your country may have a cowboy mentality," she concluded, " but even cowboys don't like being on the wrong side of history."

I thought of our conversation on Friday when I learned that Maryland will become the first state south of the Mason-Dixon line to ban capital punishment.

"Ending executions in Maryland," is the Baltimore Sun editorial published on Tuesday.

Having won approval in both chambers of Maryland's General Assembly, a landmark bill to abolish the state's death penalty awaits only Gov. Martin O'Malley's signature before becoming law. It is a tremendous political and moral victory for Mr. O'Malley, a long-time opponent of capital punishment who campaigned for a repeal during his first term only to come up short.

That leaves only one major item of unfinished business on his agenda regarding the issue: Commuting the sentences of the five men currently on Maryland's death row to life imprisonment without the possibility of parole. The governor must use the historic opportunity presented by the abolition of capital punishment in Maryland to unequivocally put an end to the last vestiges of this barbaric practice in the state's prisons.

The bill abolishing Maryland's death penalty that the governor is expected to sign does not apply retroactively to defendants who were sentenced to be executed while the old statute was still in effect. Thus although Mr. O'Malley has presided over a long-term de facto moratorium on capital punishment — there have been no executions in the state since 2005 — the five men on its death row remain condemned to die, and there is no assurance that a future Maryland governor wouldn't allow their sentences to be carried out. That would make a mockery of the religious, moral and practical arguments against the death penalty that finally led to its abolition.

SeaCoast Online posts the AP report, "N.H. death penalty opponents laud Maryland repeal."

New Hampshire death penalty opponents are lauding the Maryland legislature's vote to repeal the death penalty and vow an intense campaign to abolish capital punishment here during the 2014 session.

Maryland's House of Delegates passed the repeal legislation Friday and its Senate voted in favor of repeal last week. Maryland Gov. Martin O'Malley has pledged to sign it into law.

New Hampshire Democratic Rep. Renny Cushing of Hampton — whose father was murdered — said he and Manchester Republican Rep. Steve Vaillancourt will sponsor legislation to abolish the death penalty next session.

Earlier coverage of Maryland's repeal of capital punishment begins with coverage of Gov. O'Malley's Politico OpEd.

Developments in North Carolina

At the Charlotte Observer O-pinion site, editorial board member Fannie Flono writes, "Time to rev up N.C.'s executions? No."

It's time to juice up the needle. No more slacking off on sending the N.C. death-row inmates to the death chamber for their lethal injection.

That's the thinking behind a new bill introduced Wednesday by New Hanover Republican senator Thom Goolsby. Goolsby's Senate Bill 306 would repeal the 2009 N.C. Racial Justice Act, a law state Republicans already gutted last year. The changes drastically reduced the ability of judges to use general statistics and data to decide whether a death row inmate was given the death penalty because of his or her race. Goolsby gave his support for that revamped bill lawmakers approved, saying then that he didn't "trust statisticians or people who come in after the fact to find some way to get coldblooded killers off of death row."

But that wasn't good enough and now he's calling for the law's total revocation. His bill also calls for doctors, nurses and pharmacists to participate in executions without fear of punishment from state licensing boards, something the courts have already declared permissible. And it also requires a somewhat ghoulish death watch by lawmakers with mandated updates to the General Assembly on the status of post-conviction death penalty cases, and on the training of executioners.

And:

Instead of trying to restart the state killing industry, North Carolina should join those states abandoning it. It's too often unfairly administered even when race is not a factor.

"Bill seeks to streamline NC execution process," is the AP report filed by Michael Biesecker.  It's via the San Francisco Chronicle.

Legislation introduced Wednesday aims at streamlining the execution process in North Carolina.

The measure by Sen. Thom Goolsby, R-New Hanover, seeks to make several changes to laws governing the administration and appeal of capital punishment. It also includes doing away with the state's Racial Justice Act.

The 2009 law allows those sent to death row to seek having their sentences commuted to life in prison without the possibility of parole if they can convince a judge racial prejudice played a role in their conviction.

Flanked by prosecutors from across the state, Goolsby decried that none of the 152 inmates on North Carolina's death row have been executed since 2006 due to various state and federal legal appeals.

WRAL-TV reports, "Bill seeks to put death penalty back on track."  It's by Mark Binker.

Sen. Thom Goolsby, R-New Hanover, has filed a bill he said will end North Carolina's de facto moratorium on the death penalty. Among other measures, it would wipe away the last vestiges of the Racial Justice Act, a measure that allows death row inmates to challenge their sentences based on statistical evidence.

And:

The measure also:

• Codifies court rulings that allow doctors, nurses and other health professionals to participate in executions without sanction from the North Carolina Medical Board or other licensing bodies.
• Outlines the time line the attorney general and Division of Adult Correction has to follow once an inmate has exhausted his or her appeals.
• Provides ongoing training to execution teams.
• Requires regular reports on the status of death row cases to the General Assembly.

It's unclear how much more quickly executions would happen if Goolsby's bill passes.

"Families of Fayetteville-area murder victims support bill to repeal Racial Justice Act," is the Fayetteville Observer report by Paul Woolverton.

The families of two Fayetteville-area murder victims stood in support of legislation filed Wednesday to repeal North Carolina's Racial Justice Act and end the state's unofficial moratorium on executions.

The Racial Justice Act of 2009 and 2012 provides condemned inmates an opportunity to escape death row if they have evidence that racism was a factor in their prosecutions and convictions. It was a response to concerns of institutional racism in the criminal justice system.

Independently from the Racial Justice Act, all executions in the state were halted in January 2007 by court challenges questioning the legality and constitutionality of North Carolina's execution practices.

"The beginning of the end of that moratorium starts today," said state Sen. Thom Goolsby, a Wilmington Republican and criminal defense lawyer, during a news conference to announce his legislation.

And:

The state is still in litigation over the constitutionality of its execution procedures, whether they violate the Eighth Amendment's prohibition on cruel and unusual punishment, said David Weiss, a lawyer with the Center for Death Penalty Litigation. Goolsby's bill would have not have an effect on that case, Weiss said, and until it's resolved, executions will remain on hold in North Carolina.

He thinks it will take at least a year.

The matter is pending before the N.C. Court of Appeals, and from there, it's expected to be heard by the N.C. Supreme Court, Weiss said.

"GOP bill would repeal Racial Justice Act once and for all," is from Raleigh's News & Observer.

SB306, filed by Sen. Thom Goolsby, a Wilmington Republican, would repeal the RJA in its entirety. Goolsby announced the bill at a news conference attended by district attorneys from around the state, and relatives of murder victims.

The bill would apparently not bring an end to the claims that have already been filed under the Racial Justice Act, however.

Goolsby said the bill would "restart the death penalty in North Carolina to ensure justice for the more than 100 families whose loved ones were taken brutally from them."

Tye Hunter, director of the Center for Death Penalty Litigation, in an interview noted that Republican legislators last session insisted they weren’t repealing the Racial Justice Act. “Now the mask is off,” Hunter said.

NC Policy Watch posts, "A return to executions?"  It's by Sarah Ovaska.

North Carolina hasn’t had an execution since 2006, and state Sen. Thom Goolsby wants to change that.

Goolsby, a Wilmington Republican, filed a bill today that seeks to repeal what’s left of the Racial Justice Act and restart executions in North Carolina.

North Carolina’s death row has 152 people on it, and the numbers of people sentenced to death has lessened in recent years. No one was sentenced to death by a North Carolina jury last year, though three people were in 2011. The longest resident of death row, Wayne Laws, has been awaiting execution since 1985.

Earlier coverage from North Carolina begins at the link. You can also jump directly to earlier news of the state's Racial Justice Act.

As always with news from North Carolina, thanks to Gerda Stein for distributing.

Sunday - The Diversions

I hear from readers who appreciate the left-column webrolls.  Some even make it to the last group, Diversions.

I'm adding a new site today; Travels with Sam.  My long-time friend, Austin attorney-mediator Sam Graham is a Fulbright Scholar this year, teaching at the Academy of Law, Odessa in the Ukraine.  He's been teaching there and in Russia for several years, and the stories he brings back are fascinating.  I'm looking forward to hearing them in real-time on his brand new blog.

Remembering a Death Row Exonoree

That's the title of David Protess' latest essay at Huffington Post.  He's the president of the Chicago Innocence Project.

"Dennis Williams, a former death-row inmate whose exoneration became a rallying cry for opponents of the death penalty in Illinois, died on Thursday at his home. He was 46. An autopsy has not yet been performed..." -- The New York Times: March 25, 2003

To outsiders a decade ago this month, Dennis Williams had it all. He was vibrant and gregarious, with a sharp wit and infectious laugh. Women were drawn to him, and his latest "fiancee," Alicia, was as bright as she was beautiful.

Related posts are in the exoneration, innocence, and wrongful incarceration indexes.

Continuing Coverage of Andre Thomas & 'Trouble in Mind'

Today's Texas Tribune posts, "Andre Thomas: Struggling to Maintain Sanity In Prison," by Brandi Grissom.  It's part five of the six-part series, "Trouble in Mind."  There are infographics at the link.

Thomas is among thousands of mentally ill inmates in the state’s sprawling prison system, which is struggling to keep pace with the increasing need for mental health care. After years of state budget cuts that resulted in trimming staff and reducing programs, leaders at the University of Texas Medical Branch, which provides much of that care, say they need more state funding to provide adequate treatment. And some lawmakers want the prison system to adopt policies that may help alleviate some inmates’ mental health problems by reducing the use of solitary confinement, where more than 8,000 inmates now find themselves, according to prison officials.

After being convicted of murder in 2005, Thomas, then 22, was sent to TDCJ’s death row at the Polunsky Unit in Livingston. On the health status form that medical staff from the Grayson County Jail sent along with Thomas when he was transferred, they wrote that he was a “paranoid schizophrenic,” that he had “enucleated” his own eye, and that he was wearing mittens to prevent him from ripping out the other eye. (Click here to view an interactive timeline of the case.)

Like the rest of the condemned, Thomas spent 23 hours a day confined alone in a 6-foot-by-10-foot cell. There, his mental illness worsened, his lawyers say.

Part four of Grissom's series ran as, "Advocates Seek Mental Health Changes, Including Power to Detain," in the Sunday Texas edition of the New York Times, and as, "Andre Thomas: Gaps in a 30-Year-Old Mental Health Code," at the Tribune.

At least twice in the three weeks before the crime, Mr. Thomas had sought mental health treatment, babbling illogically and threatening to commit suicide. On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him.

Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment. Mr. Thomas later told the police that he was convinced that Ms. Boren was the wicked Jezebel from the Bible, that his own son was the Antichrist and that Leyha was involved in an evil conspiracy with them.

He was on a mission from God, he said, to free their hearts of demons.

Hospitals do not have legal authority to detain people who voluntarily enter their facilities in search of mental health care but then decide to leave. It is one of many holes in the state’s nearly 30-year-old mental health code that advocates, police officers and judges say lawmakers need to fix. In a report last year, Texas Appleseed, a nonprofit advocacy organization, called on lawmakers to replace the existing code with one that reflects contemporary mental health needs.

“It was last fully revised in 1985, and clearly the mental health system has changed drastically since then,” said Susan Stone, a lawyer and psychiatrist who led the two-year Texas Appleseed project to study and recommend reforms to the code. Lawmakers have said that although the code may need to be revamped, it will not happen in this year’s legislative session. Such an undertaking requires legislative studies that have not been conducted. But advocates are urging legislators to make a few critical changes that they say could prevent tragedies, including giving hospitals the right to detain someone who is having a mental health crisis.

From the time Mr. Thomas was 10, he had told friends he heard demons in his head instructing him to do bad things. The cacophony drove him to attempt suicide repeatedly as an adolescent, according to court records. He drank and abused drugs to try to quiet the noise.

By the time he was 16, he was a father with a long history of arrests. At 18, he was married to his son’s mother. A few months after their wedding, the two separated. Mr. Thomas struggled to hold a job, and the older he got, friends and family members say, the more pronounced his mental illness became.

By March 5, 2004, it was too much. A friend took Mr. Thomas to a local mental health clinic, where he told staff members that he wanted to die and that he could not stand the sound of his own voice. He said that if someone there did not shoot him, he would do it himself, court records show. Frantic and delusional, he said, “If I can’t talk to someone now, I will throw myself in front of a bus.”

Clinicians told Mr. Thomas to go to the emergency room, and at their request a judge issued an emergency detention order. But Mr. Thomas did not make it to the emergency room that day, and no one sought him out.

This collaboration between the Tribune and Texas Monthly runs in a different form in the March edition of TM, "Trouble in MInd: How should criminals who are mentally ill be punished?"

Earlier coverage of Andre Thomas begins at the link.

At Huffington Post, Chicago attorney Andrea Lyon posts, "Blind Justice.

This matters because the United States Supreme Court in a case called Ford v. Wainwright that the Eighth Amendment's ban on cruel and unusual punishment prohibited the execution of the insane. "We may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life," wrote Justice Thurgood Marshall in his majority opinion. Nonetheless, the court left it up to the states to determine who was too mentally ill to be put to death. And as we know, the devil is in the details.

Mr. Thomas's case shouldn't even be considered a close one legally -- he simply is too mentally ill to execute. In fact, Mr. Thomas has been found by the department of corrections too mentally ill to be on death row -- so he is housed in a mental health facility where medication appears to be of some help. He is too ill for death row, but not to be killed by the State of Texas? If this case does not fall into the category of someone who should not be executed under our law, it is hard to imagine who would fit in that category. The state of Texas should abandon its pursuit of death in this case, and continue to confine Mr. Thomas in a locked mental health facility.

This case illustrates is something even more troubling; our failure to have any real strategy for dealing with mental illness. Tragically, just weeks before the murders for which he was sentenced to death, mental health professionals issued detention orders, fearing what Andre Thomas would do to himself, or others. Twice the police failed to carry out those orders including one that had been issued just days before these voices commanded him to commit these acts.

I wish I could tell you that this is the only time something like this has happened, but it isn't.

Warren Hill's Mental Retardation

AP reports, "Doctors say Ga. death row inmate mentally disabled," by Kate Brumback.  It's via the San Francisco Chronicle.

Lawyers for a Georgia man set to be executed next week released sworn statements Thursday from three doctors who originally testified for the state but who now say they've changed their opinions and believe he is mentally disabled.

All three doctors write in affidavits that they changed their diagnoses after reviewing evidence, testimony and documents in the case of Warren Lee Hill. Lawyers for Hill, who is set to be executed Tuesday, have long argued he shouldn't be executed because he is mentally disabled. State law and a previous U.S. Supreme Court decision prohibit states from executing people who are mentally disabled.

"Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error," wrote Dr. Thomas Sachy wrote in an affidavit.

Hill's defense plans to submit the doctors' statements to the state Board of Pardons and Paroles when it requests a new clemency hearing, as well as to a state court that has previously declined to overturn his death sentence, said lawyer Brian Kammer.

The state has consistently argued that Hill's defense has failed to prove beyond a reasonable doubt that he is mentally disabled. Hill's lawyers have said that burden of proof is virtually impossible to meet. Georgia's strictest-in-the-nation standard for proving mental disability has repeatedly been upheld by state and federal courts.

"State experts change opinions in condemned killer’s case," is the Atlanta Journal-Constitution report by Bill Rankin.

Days before condemned killer Warren Lee Hill’s is scheduled to die, the same state experts who testified Hill was eligible for execution now say they were wrong, according to affidavits released Thursday.

Hill is to die by lethal injection on Tuesday at 7 p.m. His lawyers have already asked the U.S. Supreme Court to halt the execution. On Thursday, they said they will soon ask a state court judge to consider the doctors’ new statements and will use them when asking the State Board of Pardons and Paroles to give Hill a new clemency hearing.

During a key hearing 13 years ago, state attorneys called on two psychiatrists and a psychologist to refute Hill’s claims that he is mentally disabled and thus ineligible for execution. All three doctors now say they were mistaken when they testified Hill was not mentally disabled.

“Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error,” said one of the experts, Thomas Sachy, a forensic psychiatrist.

In their affidavits, the doctors described their evaluations of Hill in late 2000 as rush jobs. They also said they did not have all the information they needed to make a proper diagnosis.

The scientific understanding of mental retardation has grown over the past dozen years, the doctors said, giving them better insight into evaluating a person such as Hill, whom they initially believed was faking.

And:

The case has attracted national attention. Two state court judges have found that Hill was mentally retarded, but they said Hill only proved that he was more likely than not mentally retarded.

That’s not strong enough proof in Georgia, which is the only state in the country that requires capital defendants to prove mental retardation beyond a reasonable doubt. Such a finding for Hill means he would be sentenced to life in prison.

At the ACLU Blog of Rights, Brian Stull posts, "How Do I Explain to my Six Year-Old Son What Kind of a Society Plans to Execute an Intellectually Disabled Man?"

So what gives? If the court, the victims' family, and Hill's childhood teachers all say that Hill is intellectually disabled, then how can he be executed? The answer is a technicality, a glitch, a quirk in Georgia law. Georgia stands alone among death-penalty states in requiring proof beyond a reasonable doubt of intellectual disability before barring execution. The Georgia judge found beyond a reasonable doubt that Hill had an IQ of 70 or below, but only by a "preponderance of the evidence" that he suffers adaptive limitations and that he began suffering his disability before the age of 18. A "preponderance of the evidence" is lawyer-speak for more likely than not. In other words, Georgia says to Hill, we're pretty sure you're intellectually disabled, but we find you don't meet our very high standard of proof.

Society shows its best self when it takes care of its disabled, makes available needed services, allows for equal education and other opportunities. And of course we don't require the disabled to prove their disability beyond a reasonable doubt -- the highest standard of proof known to law (designed, as we have previously explained, for a completely different purpose). We provide these services and opportunities without anything like this kind of scrutiny because it's the right thing to do. It's also the right thing to do to stop this execution from proceeding on a technicality. Hill's pending petition to the U.S. Supreme Court asks the Court to stop the execution, and in turn to save us from our worst selves. Let's hope they do.

Earlier coverage of Warren Hill's case begins at the link.  In the next post, a news release issued by Hill's advocates.

Jeffrey Toobin on California's Death Penalty

"Christopher Dorner and the California Death Penalty," is Jeffrey Toobin's post at the New Yorker News Desk blog.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system—the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds—a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed.

And:

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts. This has created a huge backlog at the state’s highest court. Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006. That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different. The finality of capital punishment requires special safeguards against errors in the judicial process. But if a state takes those safeguards seriously, as California does, the process can become never-ending. Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain. And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed. All of this leads to delay.

Earlier coverage from California begins at the link.

Execution Date Set for Warren Hill in Georgia

Last week the Atlanta Journal-Constitution reported, "Execution warrants signed for two killers."  It was written by Bill Rankin.

Executions were set Tuesday for two condemned Georgia inmates — Warren Hill, who killed a fellow prisoner, and Andrew Cook, who fatally shot two Mercer University students.

Hill’s execution is scheduled to be carried out Feb. 19 at 7 p.m. and Cook’s is set for Feb. 21 at 7 p.m., the Department of Corrections said. Both executions will be conducted at the Georgia Diagnostic and Classification Prison in Jackson.

The last Georgia inmate to be executed was Troy Anthony Davis, who was put to death Sept. 21, 2011, for the killing of a Savannah police officer.

Hill’s execution had been scheduled last July. But with two hours to spare, the Georgia Supreme Court issued a stay to determine whether Corrections should have followed the state Administrative Procedure Act, which allows for public comment, when it replaced its three-drug execution cocktail with one drug, pentobarbital.

On Monday, the court found that Corrections followed proper procedure when making the switch. In that ruling, the justices lifted its stay of Hill’s execution.

Eric Jacobson, the executive director of the Georgia Council on Developmental Disabilities, writes, "The Supreme Court Must Stop the Execution of Warren Hill," for Huffington Post.

On February 19, 2013, Georgia plans to execute Warren Hill, a man with an intellectual disability. Mr. Hill has exhausted his appeals. The Georgia State Board of Pardons and Paroles denied clemency and has declined to give Mr. Hill another audience.

The United States Supreme Court should intervene in this case to ensure that the protection they have granted for the "mentally retarded" against the death penalty is realized. If the court does not act, a man with an undisputed intellectual disability will be unconstitutionally put to death next week.

As the Executive Director of Georgia's Council on Developmental Disabilities, I have strongly advocated for state and federal legislation that protects our nation's most vulnerable citizens. Our organization, and those like us across the country have supported many laws, including those that protect people with intellectual disabilities from execution. This supports the position of the United States Supreme Court in its landmark 2002 Atkins v Virginia ruling, noting that people with intellectual disabilities are less culpable for their actions and are at greater risk for wrongful execution.

And:

The protections that exist under the law for people with intellectual disability are vitally important to our democracy. People with intellectual disability deserve to live as full citizens of this country and state, protected by laws designed to recognize our diversity and uphold our basic rights, despite our differences. We, in Georgia will continue to fight to bring our state into alignment with other states by working with policy makers to change the "beyond a reasonable doubt" standard. In the meantime, the United States Supreme Court must stop the execution of Warren Hill.

"Georgia’s Plan to Execute Retarded Man Raises Moral Questions," is by Imani Jackson at Politics 365.

The state of Georgia has rescheduled the execution of a mentally handicapped inmate for February 19. Warren Lee Hill Jr. was scheduled for execution last summer; however, the Georgia Department of Corrections changed the lethal injection process and delayed his execution.

The same day that the lethal injection protocol was examined, a petition for considering Hill’s mental retardation,  was denied, despite his IQ of 70.

Hill’s attorney, Brian Kammer, told Politic365 that he wants the courts, the department of corrections and the clemency board “to err on the side of humaneness and mercy” in cases similar to Hill’s.

Think Progress posts, "Georgia Will Execute An Intellectually Disabled Man Next Week Unless The Supreme Court Intervenes," by Nicole Flatow.

While a series of procedural rulings have delayed execution for Warren Lee Hill, he faces imminent capital punishment by the state of Georgia a week from tomorrow, in spite of a U.S. Supreme Court decision that says executing the severely mentally disabled is unconstitutional. Hill, who was deemed “mentally retarded” at trial (an unfortunate legal term), has exhausted his appeals, and only U.S. Supreme Court action can stop his execution this time.

Among those who have advocated for Hill’s clemency are several jurors from Hill’s trial, disability groups, and President Jimmy Carter. Even the victim’s family has submitted an affidavit stating that they prefer clemency.

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

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

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

Court of Inquiry in Second Day

The Austin American-Statesman reports, "Lawyers spar over documents in Anderson inquiry," by Chuck Lindell.

Riveting testimony by Michael Morton, and sharply worded battles over evidence, punctuated Monday’s opening of a court of inquiry that is examining whether former prosecutor Ken Anderson improperly hid evidence that could have helped Morton defend himself against a murder charge in 1987.

One of the most intense exchanges was sparked when Rusty Hardin, acting in a role similar to prosecutor, moved late Monday to introduce three documents that were newly discovered in files kept by Anderson when he was Williamson County’s district attorney.

Hardin said the documents, when combined with other records that he had presented earlier, showed a “pattern and practice” of withholding favorable information from defense lawyers, contradicting Anderson’s claims that he always disclosed such evidence as required by law.

“The file is replete with stuff they should have let the defense attorneys have,” Hardin said. “This is three more things in the DA’s files that should have been tendered to the defense. The fox doesn’t get to guard the henhouse.”

"Inquiry Day Two Begins With Judge Questioning," is the Texas Tribune coverage by Brandi Grissom.

On the first day of Williamson County state district Judge Ken Anderson's court of inquiry Monday, Michael Morton spent more than five hours on the witness stand, getting emotional at times as he hashed over the mistakes that led to his wrongful murder conviction and almost 25 years in prison.

“Going through all of that again was difficult, but necessary," Morton said before leaving the court. "I’m glad the process has finally started.”

Anderson, the former prosecutor who secured Morton’s conviction, is the subject of a rare court of inquiry that could lead to criminal charges. Morton and his lawyers allege that Anderson withheld critical information during the 1987 trial that sent him to prison for life for his wife’s murder. Anderson and his lawyers say that the prosecutor committed no wrongdoing in the case, that the judge in the case was ordered to only disclose a limited amount of information and that the statute of limitations on any alleged violations has expired.

Some of the most emotional testimony came early in the day when Hardin asked Morton about the nearly 25 years he spent in prison.

Earlier coverage of the Court of Inquiry begins at the link.

Court of Inquiry Convenes

Brandi Grissom is liveblogging the Court of Inquiry examining Judge Ken Anderson's actions when he was the Williamson County District Attorney and his prosecution of Michael Morton.  She also has an introduction to the liveblog at the Texas Tribune.

A rare court of inquiry begins today in Williamson County and will examine the role of former prosecutor Ken Anderson in the wrongful murder conviction of Michael Morton. Anderson, now a state district judge, faces potential criminal charges for contempt of court and tampering with official documents. Lawyers for Morton, who was released from prison in 2011 after spending nearly 25 years incarcerated for his wife's murder, argue that during the 1987 trial Anderson deliberately withheld evidence in violation of a judge's order.

Rusty Hardin, a former Harris County prosecutor turned high-profile defense lawyer, will act as special prosecutor in the case. He will present evidence to Judge Louis Sturns, who will oversee the unusual court process and eventually decide whether Anderson should face charges. Lawyers for Anderson will also present evidence, which they argue in legal documents will prove that their client did not violate the judge's order. They also contend that the statute of limitations has expired on any alleged violations. 

Anderson has apologized for the criminal justice system's errors in the Morton case, but has maintained that he committed no wrongdoing.

"Morton’s Murder Conviction Comes to Define Anderson," is Grissom's preview published in the Texas Tribune and the Texas edition of the New York Times.

Growing up in the 1960s, Ken Anderson admired the great trial lawyers in movies: Gregory Peck in “To Kill a Mockingbird” and Spencer Tracy in “Inherit the Wind.” The good guys who broke down lying thugs on the stand.

“In reality, I don’t see much brilliance in the courtroom,” Mr. Anderson wrote in his 1997 book, “Crime in Texas: Your Complete Guide to the Criminal Justice System.” “Trials are won and the truth is exposed because of detailed, painstaking preparation done before the first witness is sworn in.”

In 1985, at age 33, Mr. Anderson became the Williamson County district attorney. He held that job until Gov. Rick Perry appointed him a district judge in 2001. Mr. Anderson prosecuted hundreds of criminals, earning a reputation for persuading juries to assess harsh penalties.

One of those cases has come to define Mr. Anderson over the last year and a half as the antithesis of the truth seekers he admired. He will sit at the defense table Monday, facing a rare court of inquiry that will determine whether Mr. Anderson, now 60, should face criminal charges for his role in the wrongful murder conviction of Michael Morton. Mr. Morton, a grocery store manager, served nearly a quarter-century in prison for murdering his wife. DNA testing led to Mr. Morton’s exoneration in 2011.

Mr. Morton’s lawyers say that Mr. Anderson withheld evidence that not only pointed to their client’s innocence but allowed a murderer to remain free.

Today's Los Angeles Times reports, "Texas judge faces 'court of inquiry' into wrongful conviction." It's by Molly Hennessy-Fiske.

A Texas judge who prosecuted a man wrongfully convicted of murder and freed after serving 25 years in prison faces an unprecedented court hearing Monday on whether he should be prosecuted for mishandling the case.

Williamson County District Judge Ken Anderson faces a “court of inquiry” to address allegations that he lied and concealed evidence — in violation of the law and a judge’s order — that could have cleared Michael Morton, who was convicted in the 1986 beating death of his wife, Christine, at their Williamson County home.

Morton was exonerated and released almost a year and a half ago, after DNA tests confirmed his innocence and another man, Mark Alan Norwood, was charged in connection with the killing.

Morton is testifying Monday, his attorney told The Times.

Anderson has denied wrongdoing. His attorney, Eric Nichols, a former prosecutor with the Texas Attorney General's Office, declined to comment to The Times ahead of the hearing.

A “court of inquiry,” part of Texas law since 1965, has usually been used to examine allegations against elected officials, never to address suspected misconduct by a prosecutor. Some hope this week’s hearings lead to a greater examination of alleged prosecutorial misconduct that has led to wrongful convictions not just in Texas, but nationwide.

“There is no doubt that the eyes of Texas are going to be on this proceeding,” said Kathryn Kase, executive directror of Texas Defender Service, a nonprofit that trains and assists lawyers who represent death row inmates. “Bad forensic science is not the only reason people get wrongfully imprisoned, and we have to be dedicated to trying to stop that.”

The Austin American-Statesman is also posting live updates, "Anderson court of inquiry set to begin," by Chuck Lindell, who has been covering the Morton case since 2008.

Michael Morton, who will testify today, is in the audience with his fiancee, Cynthia Chessman. They’ve been together for a year and will be married next month. Morton is sitting with most of his lawyers, including John Raley, Gerry Goldstein and Barry Scheck, the co-founder of the Innocence Project.

The family of Debra Masters Baker is in attendance as well. Baker was beaten to death while lying in bed in her Austin home in 1988, two years after Christine Morton was killed in a similar manner in the Williamson County home she shared with Michael Morton and their 3-year-old son Eric.

State Sen. Rodney Ellis, D-Houston, is here as well, but the anticipated crowds have not arrived, though the relatively small courtroom in Georgetown is slowly filling up.

Lindell's preview of the Court of Inquiry is, "Morton prosecutor faces court of inquiry this week."

Exactly 16 months after Michael Morton was freed from prison, an unprecedented hearing will begin Monday in Georgetown to determine if his prosecutor, former Williamson County District Attorney Ken Anderson, should himself be prosecuted and possibly jailed.

Anderson faces a court of inquiry, a rare and uniquely Texas procedure that will examine allegations that he lied and conspired to conceal evidence — in violation of the law and a judge’s order — that could have spared Morton from serving 25 years in prison in the beating death of his wife.

In the time since DNA tests confirmed his innocence, Morton — who is expected to testify Monday — has worked to rebuild his life, particularly his relationship with son Eric, who was 3 when he was arrested, and a granddaughter born shortly after his release.

Anderson’s fortunes, meanwhile, have fallen.

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

George Ryan Released From FCI

Today's Chicago Tribune reports, "Ryan returns home to finish sentence under house arrest."  It's by Jason Meisner, Annie Sweeney, and Angie Leventis Lourgos.

Former Illinois Gov. George Ryan was let out of a federal prison in Indiana in the dead of night early Wednesday and checked briefly into a Chicago halfway house before he was released — in a surprise decision — to his home to finish out his 61/2-year sentence on home confinement.

The quick turn of events allowed Ryan, who turns 79 next month, to elude a horde of media gathered at the prison in Terre Haute, Ind., and then slip from the halfway house on the Near West Side undetected several hours later.

By 10:30 a.m., Ryan had an emotional reunion with 17 of his children and grandchildren at his longtime Kankakee home, according to his attorney, former Gov. Jim Thompson. Later in the day, Ryan's daughter, Jeanette, smiled as she left through a rear entrance. "We are very happy he's home," she said.

Home confinement for Ryan means he won't have to face weeks or months at the Salvation Army halfway house where many of the state's other disgraced politicians have had to take up residence.

And:

Ryan is home for the first time since wife Lura Lynn died, and his oldest grandson will be staying with him, Thompson said.

"I imagine it's very hard," Thompson said. "Just as I imagine it's been very hard ever since she died and it's been very hard ever since he left her (for prison). At least he's got closure now with his family."

"Ex-Ill. Gov. Ryan released from halfway house," is the AP filing by Michael Tarm, via the Frankfort State-Journal.

Former Illinois Gov. George Ryan was back at his longtime home on Wednesday following his pre-dawn release from a federal prison after serving more than five years for corruption.

He first reported to a halfway house in Chicago but in a development that took observers by surprise was allowed to go to his spacious home in Kankakee, where he'll be under home confinement for at least several weeks, his attorney Jim Thompson said.

Speaking from Ryan's living room, Thompson said Ryan was beaming and surrounded by his smiling grandchildren

"If you could see his and his grandkids' smiling faces," Thompson, himself a former governor, said by phone from Ryan's home. "He is surrounded by happy faces."

Thompson said officials decided Ryan didn't require the services halfway houses provide, which include ensuring ex-cons can use a checkbook.

Ryan will still be subject to strict rules, including prohibitions against speaking to the media or leaving the house. Thompson added that Ryan was granted retirement status by authorities, so he won't be required to find a job.

Ryan was sentenced to 6 ½ years on Nov. 7, 2007, and his term officially ends July 4 after compiling 305 days credit for good conduct, said Bureau of Prisons spokesman Chris Burke.

Looking relaxed and thinner than before prison, Ryan walked past throngs of reporters into a Chicago halfway house earlier in the morning.

Ryan, 78, left the federal prison in Terre Haute, Ind., at around 1 a.m. on Wednesday -- five months before his prison term officially ended, having qualified for early release to the Salvation Army-run Freedom Center.

The Chicago Sun-Times publishes the editorial, "Ryan's redemption."

Former Gov. George Ryan probably isn’t making any big plans just yet.

Hugging his grandchildren, sitting with his children and enjoying the quiet of his own home after more than five years in prison are, we’re quite sure, more than enough for now.

But when it’s time, Ryan likely will get re-involved with death penalty issues, his lawyer, former Gov. Jim Thompson, said Wednesday after Ryan’s release to home confinement.

That sounds just right to us.

For all of Ryan’s misdeeds, Illinois’ former governor did right when it came to the death penalty.

And he did right, we think, for the right reasons.

"George Ryan's restitution," is the Chicago Tribune editorial.

In 2006, federal jurors convicted George Ryan on 18 felony corruption counts: racketeering, mail fraud, tax fraud, filing false tax returns, lying to FBI agents. Nine people, six of them children named Willis, lie dead because of the crime spree on Ryan's watch: When he was secretary of state, as many as 2,000 truckers bribed his employees to get driver's licenses. Some of that blood money flowed to his political fund — and some of those truckers caused crashes that killed those nine and injured dozens more. As U.S. Attorney Patrick Fitzgerald had said when the ex-governor was indicted: "Ryan is charged with betraying the citizens of Illinois for over a decade on state business, both large and small. ... Defendant Ryan sold his office."

And:

George Ryan, ex-con, is free to vanish. But he's also free to make at least partial restitution to his victims. There is much he can say to the people of Illinois. Much he can teach to politicians of today, and tomorrow. Much he can do to renounce — to help reform — the Illinois culture of political sleaze.

If Ryan in the past didn't want to speak remorse for his crimes lest he undermine appeals of his verdict or sentence, that excuse is moot. If pride kept him from admitting guilt, he's now liberated to speak from the heart. If the native Iowan is embarrassed that four of his adopted state's last nine governors went to prison, he can demand better of the political class in whose grievous sins he wallowed.

"Welcome Home, Governor Ryan," is David Protess' essay at Huffington Post.  He's President of the Chicago Innocence Project.  Here's the beginning:

On a frigid February evening in 1999, I called home to check my messages. "Gov. Ryan just called you," my teenage son Ben claimed. I laughed at the seemingly obvious prank. "No, Dad, it really was the governor. I recognized his voice. He wants you to call him at home."

What could this be about, I wondered? Perhaps the Anthony Porter case? Porter was a condemned inmate who had come within 50 hours of execution, only to be freed earlier that week when my journalism students and a private investigator uncovered proof of his innocence.

As it turned out, the Illinois Republican governor and his wife, Lura Lynn, had watched Porter's dramatic release on WGN-TV. The governor was stunned. "How does an innocent man sit on death row for 15 years...?" he asked his wife in disbelief.

When I returned Ryan's call, he had a more practical question: "What can I do to help that poor guy?"

I explained that a gubernatorial pardon would guarantee Porter restitution for his 17 years of wrongful incarceration. The governor promised to promptly take care of it.

The business part of our conversation concluded, the governor stayed on the line, musing about the case. He was horrified that Porter had almost been executed on his watch. "I would have been responsible for the death of an innocent man," Ryan whispered.

Earlier news of former Governor Ryan begins at the links.

Justice Thomas Speaks

Though it's not clear exactly what he said, it's gotten a great deal of attention from Court watchers because of its rarity.

"Justice Clarence Thomas Breaks His Silence," is Adam Liptak's report in today's New York Times.

One of the abiding mysteries at the Supreme Court is why Justice Clarence Thomas has failed to say a word in almost seven years of arguments. On Monday, when he finally broke his silence, the mystery was replaced by a riddle: Just what did Justice Thomas say?

The justices were considering the qualifications of a death penalty defense lawyer in Louisiana, and Justice Antonin Scalia noted that she had graduated from Yale Law School, which is Justice Thomas’s alma mater.

Justice Thomas leaned into his microphone, and in the midst of a great deal of cross talk among the justices, cracked a joke. Or so it seemed to people in the courtroom.

The court transcript confirms that Justice Thomas spoke, for the first time since Feb. 22, 2006. It attributes these words to him, after a follow-up comment from Justice Scalia concerning a male graduate of Harvard Law School:

“Well — he did not — .”

Although the transcription is incomplete, some people in the courtroom understood him to say, in a joshing tone, that a law degree from Yale could actually be proof of incompetence or ineffectiveness. Others thought that he might have been referring to Harvard. What follows in the transcript supports the view that Justice Thomas made an actual point.

ReutersLegal posts, "Clarence Thomas breaks nearly 7-year court silence."  It's by Jonathan Stempel.

For the first time in nearly seven years, Justice Clarence Thomas on Monday spoke to a lawyer presenting a case during oral arguments before the U.S. Supreme Court.

While his utterance was not in the form of a question and consisted of a mere four words, it breaks a silence dating to Feb. 22, 2006, during an argument over the admission of forensic evidence in a South Carolina death penalty case.

Thomas's silence stands out because the other eight justices are active questioners during the hourlong oral arguments. The end of that silence caused a stir among reporters, who sit together in the courtroom.

And:

The case that broke the silence was Boyer v. Louisiana. Jonathan Boyer sought to overturn his murder conviction on the ground that Louisiana took seven years to try him while he sat in jail, violating his constitutional right to a speedy trial.

One issue was whether Boyer's court-appointed lawyers early in the proceedings were qualified to represent him.

"For first time in nearly seven years, Justice Clarence Thomas talks during court arguments," by Carlo Dellaverson at NBC News.

Justice Clarence Thomas broke nearly seven years of silence during oral arguments on the Supreme Court on Monday.

The last time the famously reserved Thomas spoke up, George W. Bush was president, the iPhone was nothing but an internet rumor, and the U.S. economy seemingly had nowhere to go but up. But just before noon on Monday, Thomas uttered what appeared to be a lawyer joke.

During arguments in the Sixth Amendment case Boyer v. Louisiana, the justices were discussing the qualifications of the plaintiff’s counsel when Justice Antonin Scalia asked the assistant district attorney of Louisiana whether another lawyer was a Yale Law School graduate. He then spoke of a different lawyer in the case who graduated from Harvard Law.

The always entertaining Above the Law posts, "Quote of the Day: Justice Thomas Speaks!"  It's by David Lat.

Despite being gregarious off the bench, Justice Clarence Thomas is famously silent while on the bench. Justice Thomas has not spoken during a Supreme Court oral argument since February 22, 2006. The seven-year anniversary of CT’s silence was just a few short weeks away.

But today Justice Thomas broke his silence, in the case of Boyer v. Louisiana (“[w]hether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the prosecution’s choice to seek the death penalty should be weighed against the state for speedy trial purposes”). Although the full substance of his remarks didn’t quite make the transcript, perhaps because it was difficult to hear him, apparently he poked fun at his alma mater, Yale Law School.

There’s a detailed blow-by-blow over at Josh Blackman’s site, where he rounds up real-time tweets and reviews the transcript. Here’s how SCOTUSblog characterized Justice Thomas’s comment:

"Speak, Clarence, Speak!" is Andrew Cohen's post at Atlantic.

As to the substance of Boyer v. Louisiana, the New York Times published the editorial, "Unspeedy Trial in Louisiana," yesterday.

It has been nearly 50 years since the Supreme Court held that the Constitution guarantees every indigent criminal defendant a right to counsel.

On Monday, the court will hear arguments in a Louisiana case whose outcome could determine whether that right remains robust or a state can dilute it by refusing to pay for a lawyer in a timely fashion.

In Boyer v. Louisiana, the defendant, Jonathan Boyer, spent more than seven years in the Calcasieu Parish jail, waiting to be tried for armed robbery and murder. He arrived there in 2002 and was held without bond because he was indicted on charges for which he could be sentenced to death. He stayed in that jail until 2009, when he was moved to the Louisiana State Penitentiary after being convicted of second-degree murder and armed robbery and given a life sentence.

During Mr. Boyer’s first five years in jail, the case against him languished because of a “funding crisis,” when the state provided no money to pay his lawyer or cover defense expenses. The parish had plenty of money to pay for a lawyer. But the Louisiana Supreme Court ruled that the parish could not be ordered to pay because that was the state’s duty.

And:

“The only possible remedy” for this kind of violation, the Supreme Court has said in earlier cases, is to set aside the conviction against the defendant and dismiss the case. Ruling otherwise would mean gutting the court’s landmark decision in Gideon v. Wainwright and rendering the right to counsel all but meaningless.

Akron Beacon Journal on the Tyrone Noling Case

"Execution at a higher standard," is the Beacon Journal editorial written by Michael Douglas, the paper's editorial page editor.

In June 2011, the federal appeals court in Cincinnati said no to Tyrone Noling. The resident of death row had asked the court to allow DNA testing driven by new evidence in a case that dates to 1990, a double murder, Cora and Bearnhardt Hartig killed in their house in Atwater Township.

Judge Boyce Martin explained that according to the law, there wasn’t room for granting the request. The ruling affirmed the district court. Yet, in doing so, it proceeded to take a revealing detour — pausing “for a moment to highlight our concern about Noling’s death sentence in light of questions raised regarding his prosecution.”

Martin devoted a passage to the doubts that hover, and increasingly so, about whether Noling killed the Hartigs. The judge reminded that Noling was not indicted until five years after the crime “when a new local prosecutor took office.” He added that the accusers have recanted their stories and “now claim they only identified Noling as the murderer … because they were threatened by the prosecutor.”

Know, as the judge emphasized, that “there is absolutely no physical evidence linking Noling to the murders, and there are other viable suspects that the prosecutor chose not to investigate or did not know of at the time.” Finally, Martin noted that “given the serious questions that have been raised regarding Noling’s prosecution, we wonder whether the decision to end his life should not be tested by a higher standard.”

And:

All of this makes obvious the value of the DNA analysis, and it’s just what lawmakers had in mind when they acted. It also suggests that higher standard, the case against Tyrone Noling having frayed for years, an execution far from fitting. As Judge Martin reminded: “As long as our justice system depends on men and women to make decisions, it will invariably make mistakes.”

The challenge is to correct them before it is too late.

The Legally Speaking Ohio blog has additional, in-depth coverage, "What’s On Their Minds: How Many DNA Tests Can A Prisoner Get? State v. Tyrone Noling."  It's written by Marianna Brown Bettman.

On January 8, 2013, the Supreme Court of Ohio heard oral argument in State v. Tyrone Noling. There are two issues in this case.  The substantive issue is whether an application for post conviction DNA testing filed under an earlier statute bars a trial court from reviewing a later DNA testing application filed under a new statute with more liberal acceptance criteria.  Read the oral argument preview of this part of the case here.

The second issue, on which the Court requested supplemental briefing after accepting the case, is whether the Supreme Court has jurisdiction to hear this case.  Under  R.C. 2953.73, a trial court’s rejection of an application for DNA testing filed by a person who has been sentenced to death must be appealed directly to the Ohio Supreme Court. That is what Noling did in this case.  But under State v. Davis, 131 Ohio St.3d 1 (2011) the Supreme Court held that courts of appeals have  jurisdiction to hear the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence in a case in which a death penalty has been imposed. Read the oral argument preview of this part of the case here.

Earlier coverage of Tryone Noling's case begins at the link.

David Protess on Texas Executions

"A Busy Year for the Texas Executioner, but Hank Skinner Eludes Death Again," is David Protess' latest essay at Huffington Post.  He's President of the Chicago Innocence Project.  Here's the beginning:

In the spirit of the holidays, Texas is taking a break from lethally injecting the residents of the Allan B. Polunksy Unit, better known as death row.

Executioners need time off, too, especially after a busy year that reduced the surplus population by 14 -- six executions ahead of its nearest rival, Oklahoma, and one-third of the total state-sponsored killings in 2012.

The Texas killing fields ended in controversy a week before Thanksgiving when Preston Hughes was executed despite compelling evidence of his innocence. Texas will officially welcome in the New Year when Kimberly McCarthy becomes the first woman put to death in two years, barring an unforeseen stay.

Of the 17 executions planned for 2013, eight will be in Texas. And, if Texas has its way, one of the newly departed will be Henry Watkins Skinner, a/k/a "Hank."

Executing Hank Skinner has presented a surprisingly stubborn challenge for Texas lawmen. Convicted of brutally slaying his live-in girlfriend and her two adult sons on New Year's Eve in 1993, physical evidence proved that Skinner was in the home at the time of the crime. Then he showed up, wearing bloodstained clothes, at a neighbor's residence and allegedly threatened her if she called the cops. A Panhandle jury did not take long to find him guilty and recommend the ultimate punishment.

Yet, on death row for 18 Christmases, Skinner has outlived more than 400 condemned men and women. How? Turns out the evidence was not what it seemed.

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

Iowa Roundup

Today's Mason City Globe Gazette publishes the editorial, "State does not need to restore death penalty."

Calls to renew capital punishment come easy in the wake of horrible crimes such as the likely murders of the two young Iowa cousins whose bodies were recently recovered after having been missing for five months.

Some legislators have been calling for the state to bring back the death penalty, and Gov. Terry Branstad has said he supports the death penalty in limited circumstances, although he won’t push for it now because he realizes it has little or no chance of making it through the Democratic-controlled Iowa Senate.

In the heat of emotion, we, too, can imagine wanting to kill anyone who could do such a horrible thing as to murder two small girls. A long, torturous death for that person would seem appropriate.

That’s why laws should be made not in the heat of emotion, but in the light of logic and facts.

The facts simply don’t support any justification for capital punishment other than for pure, simple, brutal revenge, and hopefully our society strives for a higher standard than that.

And:

In Iowa, if you are convicted of a capital crime you are sentenced to a long, slow death behind bars. There is no probation and no parole for people sentenced to life in this state. We’re satisfied that’s the way it should remain, and oppose any efforts to try to change it.

Kathie Obradovich posts, "Let’s not honor the dead with more death," at the Des Moines Register's A Better Iowa blog.

It’s difficult to deny urgent requests from well-meaning people who have suffered unimaginable loss.

That’s why some state legislators might be willing to entertain another debate on reinstating the death penalty in Iowa, even though the bill will almost certainly fail.

Gov. Terry Branstad has agreed to meet on Monday with the parents of 8-year-old Elizabeth Collins, an Evansdale girl who with her young cousin was abducted and murdered earlier this year. Drew Collins, Elizabeth’s father, said just after his daughter’s memorial service that he thinks the girls’ abductor — who has yet to be found — might have let them go if Iowa had a death penalty.

The tragic school shootings in Connecticut on Friday will add to Iowans’ fears that the world has become a perilous place for children.

And:

Iowa repealed capital punishment in 1965 and today is one of 15 states without a death penalty. In 2011, Iowa ranked 44th out of 50 states in murders per 100,000 people. That was lower than every state with a death penalty except New Hampshire.

You can find studies and statistics to support whatever argument you want to make about the deterrent effect of capital punishment. I’m more persuaded by those that show state-sanctioned executions do little or nothing to deter crime. Either way, the sorts of crimes that some would seek to avoid with the death penalty happen here so rarely that we still remember the names of the victims years later.

Earlier coverage from Iowa begins at the link.

State Repeal Roundup

We have repeal items from three states today, Connecticut, Kentucky, and Maryland.

In Kentucky, AP reports, "Death Penalty Opponents Ask Governor for Support."  It's via WBKO-TV.

Activists have delivered more than 1,500 postcards to Gov. Steve Beshear asking that he sign no more death warrants and that he work to abolish the death penalty.

Kaye Gallagher, coordinator of the Kentucky Coalition to Abolish the Death Penalty, delivered the postcards from across the state to Beshear's office late Monday.

Each of the cards said three decades of experience shows the death penalty is "a risky, arbitrary, unfair, ineffective and costly distraction from justice."

And:

Kentucky has executed three people since the reinstatement of capital punishment in 1976, two by lethal injection and one in the electric chair.

Columnist Susan Campell writes, "Connecticut should not stop part-way on abolishing the death penalty," in the Register Citizen of Litchfield County.

Here in the Land of Steady Habits, change comes one toe in the water at a time. First, we had marriage lite, or civil unions, and when the sky didn’t fall, we went all in for marriage equality.

Similarly, when the state decided to abolish capital punishment — as legislators did in April — they did so, but only partly. The death penalty was abolished for future cases, but it is still an option for 11 men waiting on death row. Some of those men are in court claiming the death penalty is applied capriciously, and prejudicially.

They remain under the threat of lethal injection in part because of the lobbying efforts of Dr. William Petit, the lone survivor of a 2007 home invasion that took the lives of a mother and her two daughters, and left the doctor for dead.

He didn’t die, and he’s taken his grief and started a family foundation that aims to do good. He’s also lobbied hard to retain the death penalty, so that the two men tried and convicted for the destruction of his family will — eventually, perhaps — die at the hand of the state.

I do not question Dr. Petit’s grief or his motivation.

I do not believe, however, that a grieving husband and father should set public policy. The state appeared poised to abolish capital punishment in 2011, until Dr. Petit made an impassioned plea that convinced even the likes of the now-retired Sen. Edith Prague — who’d originally been poised to vote to repeal — to back away and leave the death penalty in place.

"Why Martin O'Malley Needs to Lead Maryland to Death Penalty Abolition," is Brian Evans' Huffington Post essay.  He's with Amnesty International.

Opposing the death penalty is not the political third rail it used to be (or at least was considered to be). It has become a mainstream choice. Especially now, and especially in a state like Maryland, with its tiny death row and no death sentences since 2004.

For Maryland's political leadership, choosing to repeal its moribund capital punishment law shouldn't be a hard vote. The public prefers life without parole. Governor Martin O'Malley has been not only an admitted but an avowed abolitionist since he assumed office in 2007, and he was re-elected in 2010 by double digits. This past year he demonstrated his state's readiness for groundbreaking lawmaking with passage of both marriage equality and the DREAM Act. In fact, death penalty abolition is less groundbreaking than either of these, as four states have legislatively abolished the death penalty since O'Malley has been Maryland's Governor.

Sadly, his state is not one of them.

He can and should rectify this in 2013.

Earlier coverage from Connecticut, Kentucky, and Maryland begins at the links.  Related posts are in the abolition index.

Lincoln Caplan Looks at Kentucky

Lincoln Caplan posts, "‘Clear Errors’ About the Death Penalty," at the New York Times Taking Note blog.

When the United States Supreme Court reinstated capital punishment in 1976, it said that the penalty could never be mandatory. Even if a jury finds a defendant guilty of a brutal murder, it still must weigh evidence about how to sentence him. Aggravating evidence concerns why a jury should impose a death sentence. Mitigating, or moderating, evidence concerns why it should not. That is the law of the land.

But it is not the law of the Kentucky Supreme Court. The U.S. Supreme Court decided this week not to review a ruling by that state court which upheld the 1986 death sentence of Benny Lee Hodge. Justice Sonia Sotomayor wrote that because “this is a capital case, and clear errors of law such as those here should be redressed,” she dissented from her court’s decision and laid out the Kentucky court’s errors.

And:

In this case, Justice Sotomayor made clear, extensive, uncontested mitigating evidence was not allowed to mitigate. And the “brutal nature” of the murder and the attempted murder made the death penalty all but mandatory. Both errors are fundamental under U.S. Supreme Court rulings. They make the Kentucky Supreme Court approach to the death penalty unconstitutional in the case.

The seriousness of these errors is all too familiar in Kentucky. Death sentences there have been overturned in two out of every three cases since 1976. A year ago, the American Bar Association published a 521-page report about the enormous problems of the state’s capital punishment system. The errors in the Hodge case add to the far-reaching basis for a unanimous recommendation of the Kentucky Human Rights Commission this year: it is time for the state to abolish the death penalty.

Justice Sotomayor's dissent is available in Adobe .pdf format.

Earlier coverage from Kentucky begins at the link.

Next Up: Death Penalty

That's the title of a Balitmore Sun editorial.  It's subtitled, "Since taking office, Gov. O'Malley has presided over a long-term moratorium on executions in Maryland; next year he should push to end capital punishment outright."

Having successfully pushed for historic changes in Maryland laws regarding expanded casino gambling, in-state college tuition rates for some undocumented-immigrant students, and the right of gay people to marry, Gov. Martin O'Malley is now in a position to address one of the last great pieces of unfinished business of his time in Annapolis: abolishing the state's death penalty.

Mr. O'Malley, who opposes capital punishment on religious and practical grounds, reportedly is considering whether to ask the legislature to take up the matter again when it meets in January. We urge him to do so, not only because abolishing the death penalty is morally and ethically the right thing to do but also because there may never be a better time to ban capital punishment once and for all. This coming year, Governor O'Malley would have powerful allies, including the Baltimore-based national office of the NAACP, whose president, Ben Jealous, has vowed to put the full weight of his organization behind an effort to end the death penalty in Maryland.

This state already has one of the most restrictive death penalty laws in the country as a result of a 2009 compromise reached by the legislature that limits its application to cases in which there is either biological evidence of guilt, a videotaped confession or a video of the crime. The tougher requirements came about after Mr. O'Malley sought to abolish the punishment outright that year but failed to overcome the opposition of key lawmakers on the Senate Judicial Proceedings Committee. That hurdle has not disappeared, but the cause remains just, and there's no reason the governor should not try again.

And:

Mr. O'Malley should seize the opportunity to leave a lasting legacy at a time when his political capital has never been higher. Justice and public safety can both be served without resorting to state-sanctioned killings that neither guarantee justice will be done nor make the public safer from crime.

WRC-TV posts, "Will O'Malley Push to Abolish the Death Penalty Again?"  It's by Perry Stein at the Morning Read blog.

From his early days as mayor of Baltimore, O’Malley gained a reputation for being hard on crime, at times ordering mass arrests. As governor, O’Malley has hardly issued any pardons and is on track to have the least number of pardons issued of any Maryland governor in decades.

“Democrat or Republican, O’Malley can be counted among the most conservative of his contemporaries on crime.”

But there is one heavy crime issue where O’Malley’s views align a bit differently: The death penalty.

O’Malley is firmly against the death penalty and with the 2012 elections behind him, there are reports that he is considering asking the legislature to abolish the death penalty in the state.

Earlier coverage from Maryland begins at the link.

Florida Tries to Execute the 'Prince of God'

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

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

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

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

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

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

The Insanity Defense

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

Continued Commentary From California

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

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

The repeal of the death penalty just lost.

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

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

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

And:

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

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

California Commentary

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

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

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

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

And:

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

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

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

Reflections on the California Ballot Initiative Vote

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

And:

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

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

True or false: Killing is wrong.

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

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

And:

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

Earlier coverage from California begins at the link.

California Recap

Proposition 34: Death Penalty Statewide Results:

No    52.8%
Yes    47.2%

24,491 of 24,491 (100%) precincts reporting
Last update: 11/07/2012 at 08:33pm
Source: Secretary of State

"Defeat of death penalty repeal brings move to ease executions in California," is the Sacramento Bee report by Sam Stanton and Andy Furillo.

After beating back a well-funded effort to abolish capital punishment in California, death penalty supporters said Wednesday that their efforts to have executions resume may include going to the voters in 2014.

"We may have to go to the ballot ourselves," said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento, one of the groups that helped defeat Proposition 34 Tuesday.

The measure, which was backed by the American Civil Liberties Union and would have replaced death sentences with life without possibility of parole, lost 53 percent to 47 percent.

The defeat has no immediate impact on the administration of the death penalty, although both sides argued Wednesday that the campaign has focused new attention on the issue.

"There is no legal effect from defeating a proposition," Scheidegger said, "but there is a political effect and a psychological effect."

Natasha Minsker, the campaign manager for the effort to abolish the death penalty, argued that the results show nearly half of California voters are ready to scrap capital punishment and that such efforts will continue.

"We're really focused on having a conversation with the voters," she said. "What form that takes I don't know, but we need to continue the work and this is a step in the process."

The Silicon Valley Mercury News reports, "Defeat of Proposition 34: California's death penalty battle will continue."  It's by Howard Mintz.

California's first ballot-box attempt in more than three decades to repeal the death penalty may have failed on Tuesday, but it is likely to inflame the debate over the hot-button issue as the state tries once again to kick-start its indisputably clumsy capital punishment system.

With 53 percent of the state's voters rejecting Proposition 34, both sides tried to claim the political high ground on Wednesday — each anticipating Californians will be asked again in the near future to either abolish the death penalty or, in the case of death penalty supporters, to overhaul the state's legal apparatus to get executions moving more swiftly.

In the meantime, the political feud will take a backstage to the status quo at San Quentin State Prison's death row, where 726 inmates await execution in a state that has had a moratorium on executions for nearly seven years. Legal challenges to the state's lethal injection method will resume. Death penalty advocates will push the state prison system to adopt a single-drug execution method to short-circuit the court battles. And at least 14 inmates have exhausted their legal appeals, raising the prospect California could have an unprecedented spate of executions if the legal obstacles are removed.

San Mateo County District Attorney Steve Wagstaffe will be the first to try to unclog the system next week, when he'll ask a judge to bypass state and federal court orders halting executions by allowing the state to immediately put condemned killer Robert Fairbank to death with a single lethal drug. California's three-drug procedure has been blocked by the courts for years, but death penalty supporters say California can join other states such as Washington, Arizona and Ohio in avoiding problems by using the lone drug option..

"With Prop 34 defeated, when will California's next execution happen?" is by Rina Palta for KPCC-FM, Southern California Public Radio.

California voters reaffirmed their long-standing support for the death penalty, rejecting Proposition 34 on Tuesday by about 6 percent.

What happens now?

The state houses 726 inmates on Death Row (226 of them from Los Angeles County, where Proposition 34 enjoyed considerable support). Currently, 13 death row inmates have exhausted all their appeals and are eligible for execution.

But executions are not likely to resume soon. 

Capital punishment has been on hold in California since 2006, when a federal judge halted the execution of Michael Angelo Morales because the state's lethal injection method violated the Eighth Amendment of the U.S. Constitution ban on cruel and unusual punishment.

The judge who issued that ruling pointed to numerous issues with California's lethal injection protocol: poor training for execution team members; a cramped makeshift execution room that had been converted from San Quentin State Prison's old gas chamber; and mistakes in the use of an anesthetic that's one of three drugs in the lethal injection "cocktail" could inflict extreme pain on a dying inmate.

In the years since, the California Department of Corrections and Rehabilitation (CDCR) has made moves to change the execution process.

And:

A state lawyer estimated that the official process for codifying any new protocol would take about 10 months. The state is also arguing in a separate court case that it shouldn't have to follow such an administrative procedure.

"Californians say they oppose death penalty, then vote for it," is Dan Turner's post at the Los Angeles Times Opinion L.A. blog.

For The Times' editorial board, Tuesday's election contained a lot of victories: 15, to be precise. That's the number of ballot measures or candidates endorsed by The Times that emerged victorious, compared with just four races in which our picks lost. But one of the losses was particularly tough, given that it was on an issue this paper's editorial page has been backing since the early 1970s: replacing the death penalty with a sentence of life without parole.

And:

The good news is that the Proposition 34 results show that public opinion definitely is changing, even if it's happening more slowly than many would like. In 1978, 71% of California voters approved an initiative reinstating the death penalty; in that context, the fact that only 52.8% now want to keep it looks like progress. Just as supporters of same-sex marriage learned in 2008, when voters approved Proposition 8 and changed the definition of marriage under the California Constitution to the union of one man and one woman, sometimes you catch the tide of history before it has turned. But it's still heading in only one direction, and in a few years it's likely to be battering at the walls of San Quentin.

Earlier coverage from California begins at the link.

The 10 Biggest Legal Stories to Watch on Election Night

That's the title of Andrew Cohen's post at the National Journal, a sister publication of his usual outlet, the Atlantic.  It's a must-ready, subtitled, "From the death penalty to marijuana, from the right to die to the right to life, Tuesday night will be more than a contest between the two parties."

The election of 2012 isn't just about two men and their conflicting theories of governance. It isn't just about Republicans and Democrats or control of the Senate or electoral votes in swing states. All across the country, on ballots short and long, voters will make choices about some of the most important and contentious legal issues of our time. They will also choose Tuesday night to elect, retain, or dismiss some of the most controversial local officials of our time, folks whose impact upon the rule of law has been, or would be, profound. 

The biggest "legal" issue Tuesday night, of course, the one that could dwarf all these other issues in the short term, is the issue of voter fraud/vote suppression. After years of partisan legislation designed to make it harder for people to vote, and after months of state and federal court rulings protecting broader voting rights, we all soon will learn whether election officials in key states are willing and able to ensure that registered voters are able to vote, to vote accurately, and to have those votes counted fully and fairly.

And:

Here now is a list of some of the law-related election battles I'll be following into Tuesday and beyond. After the votes are counted, I'll be back next week with a follow-up to share with you how these races turned out. If you have any suggestions for inclusion on this list by all means let me know with a comment below. I offer these in no particular order of significance.

1. California and the death penalty. Proposition 34 would end the state's costly and inefficient experiment with capital punishment and transform all existing death penalties (725 in all) into life sentences without the possibility of parole. Passage would mean an annual savings to California taxpayers of approximately $130 million. The Los Angeles Times has endorsed the change and so have many legislators and law enforcement officials. There are national implications here, too. If the state with the largest death row in the nation turns away from capital punishment you can bet it won't be long before some federal judge, or Supreme Court justice, cites it as an "evolving standards of decency" under Eighth Amendment law.

Earlier coverage from California begins in the preceding post.

California Roundup

"California's Death Penalty: All Cost and No Benefit," is the title of Danny Glover and Mike Farrell's essay at Huffington Post.

While many important issues will be decided this Tuesday, one stands out for its national and historic importance: In California, the future of the death penalty hangs in the balance with Proposition 34. Also known as the SAFE California Act of 2012, Prop 34 will replace the death penalty with life in prison with no possibility of parole.

The fact is, California's death penalty is all cost and no benefit. The latest Field Poll, out Friday, shows that more voters than ever before support replacing the death penalty, and that Prop 34 is leading in the polls. The Field Poll says 45 percent of likely California voters support Prop 34, while 38 percent oppose. Of those who have already voted, a full 48 percent said they voted yes, while 42 percent voted no.

A big reason for the spectacular surge in support is people's awareness that the Golden State is flat broke. Voters now understand that the death penalty is far more expensive than life in prison with no chance of parole. They realize that California has sunk billions of dollars into a broken system -- while most death row inmates die of old age.

Also at HuffPost, Exoneree Franky Carrillo writes, "Calif. Leads the Nation in Wrongful Convictions -- I Would Know."

A new project at UC Berkeley Law School, the California Wrongful Convictions Project, has been studying the problem of innocent people in California convicted of crimes they did not commit, and they've just released their findings [PDF]. I wish I could say I was shocked by what they found.

California currently leads the nation in wrongful convictions. With more than 200 innocent people locked up for crimes they did not commit since 1989, and 123 exonerations, California exceeds every other state in the U.S. when it comes to this dubious distinction.

This came as no surprise to me. I was one of those 200 innocent people.

I was locked up more than 20 years ago for a murder I did not commit and last year, I was finally able to prove my innocence and was released. Including my 20 years, the total amount of time spent in prison by innocent people in California is 1,311 years.

Ever since I was released, I've been traveling around the state urging voters to vote YES on Proposition 34 to replace the death penalty with life in prison because of the risk of executing an innocent person. I know first-hand that innocent men and women can be convicted of terrible things they had nothing to do with, and that the death penalty always will run the awful risk of executing one of those people. It could have been me.

"A Challenge to Dennis Prager, Death-Penalty Supporter," is by Conor Friedersdorf at the Atlantic.

Over at Ricochet, Dennis Prager has an item mocking the California ballot initiative that could end the death penalty in the Golden State, in part because doing so would save a lot of taxpayer money. Says Prager (emphasis added):

There's a ballot measure (in California they're called propositions) to eliminate the death penalty. The idea behind this measure, Proposition 34, is that death penalty is too expensive and therefore should be abolished. The idea is so morally vapid that it's hard to believe people would take it seriously. Justice should never be a matter of money.  Do supporters of Prop. 34 really mean to suggest that, yes, heinous murderers should be executed, but because it's costly we should allow every murderer to live?

What I wonder is if Prager fully understands the implications of his argument, which I'd urge him to carry to its logical conclusion. If justice should never be a matter of money, will he start using his radio show and columns to insist that the people who perform autopsies be adequately trained and funded? Will he urge legislators to approve funds to remedy the atrocious state of forensic investigation in America, and fund rivalrous redundancy, so that private labs would check up on the work of state run forensic teams that often make mistakes? Will he insist on compensating the victims of guys like Steven Hayne -- or at least speak out against state laws that leave some wrongly jailed victims of prosecutorial misconduct without any state compensation at all upon their release? Will he speak up against asset forfeiture laws that give law enforcement agencies across the country a financial incentive to victimize innocent people?

After all, justice should never be a matter of money, right? And yet all over America, there are countless areas where additional funding could prevent innocents from being subject to unjust state action. But they are never funded, and more often than not conservatives are the ones standing in the way.

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

Texas Gov. Rick Perry's Death Penalty Debacle

That's the title of Dan Turner's post at the Los Angeles Times' Opinon L.A. blog on the case of Todd Willingham.

Gov. Rick Perry is the kind of politician many Texans seem to like: straight-talking, rigidly Christian, a bedrock conservative. His Lone Star State popularity apparently deluded him into believing he'd have a shot at national glory, yet when the rest of the country got a close look at him during his run for the GOP presidential nomination, it became clear that all wasn't quite right with the leather-faced former cotton farmer. It wasn't just his frequent gaffes and memory lapses; it was that at key times he didn't seem quite all there mentally, such as during a debate in Orlando, Fla., when his speech was so slurred that pundits questioned whether he had suffered a stroke or had been drinking beforehand.

Perry's popularity dipped at home after he dropped out of the race, but something else lurking in his past could cause worse than a downturn in his poll numbers. Perry, it turns out, not only stood by while his state's executioners took the life of a man widely believed by forensics scientists to have been innocent, he later acted to prevent evidence of that innocence from seeing the light of day. He oversees a state whose procedures for reviewing inmate appeals are a national disgrace and that may, if the case of Cameron Todd Willingham is ever given a fair hearing, prove to be the home of the first execution of a factually and legally innocent person since the advent of the modern judicial system.

And:

Willingham was executed on Feb. 17 after Perry, despite ample new evidence of innocence, refused to grant a stay.

Fast-forward to 2009. A public outcry over the Willingham case had helped prompt the formation of the Texas Forensic Science Commission, which hired a top fire expert named Craig Beyler of Hughes Associates to investigate the case. Like Hurst, Beyler was ruthlessly critical of the work of the original investigators and produced a withering report disputing their findings. Yet when the commission prepared to meet to discuss his report, Perry's top attorneys began questioning Beyler's hiring and the cost of the probe. Finally, just two days before the meeting was scheduled, Perry replaced the chairman and two other board members, and the new chair immediately canceled the meeting.

Unfortunately for Perry, his attempts to thwart the investigation haven't entirely succeeded. Willingham's family has petitioned the Board of Pardons and Parole to hold a public hearing and, possibly, issue the executed man a posthumous pardon. Since this is the same board that refused to delay Willingham's execution in the face of strong evidence of innocence, it's hard to work up much optimism for a fair result. But the pressure on Perry and other Texas officials is building. In January, the Texas fire marshall will convene an expert panel to review suspect arson cases, presumably including Willingham's.

Perry can stall and dance, but eventually the truth will out. If the vampire from Paint Creek is still in office when that happens, that should put him out.

Earlier coverage of Todd Willingham begins at the link.  All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

David Kaczynski's New Blog at the Albany Times Union

David Kaczynski is the Executive Director of New Yorkers for Alternatives to the Death Penalty.  He's started a new blog at the Albany Times Union, and I'll be adding to the left-column webroll.  It's a must-read from a thoughtful leader of peace, community, and non-violence.

"Unveiling Violence," is his first post.  Here's the beginning:

Michael Hooper was put to death on August 14, and so became the 100th person executed by Oklahoma since it reinstated its death penalty law in 1977. He was also the 1304th person executed in the US since the Supreme Court re-opened the door to the execution chamber in Gregg v. Georgia (1976).

Hooper was sentenced to death for the 1993 murders of his girlfriend Cynthia Lynn Johnson and her two children, five-year-old Tonya Kay, and three-year-old Timothy Glenn.

Somewhere on his journey through our nation’s byzantine capital punishment system, Hooper’s death sentence was overturned and subsequently reinstated.  Near the end, Hooper declined to join a clemency petition filed by his court-appointed attorney, who argued that Hooper’s mental health issues and history of child abuse constituted compelling reasons to spare his client from execution.

In many ways, Hooper’s case sounds like a typical death row tale of woe: a horrific crime perpetrated by a deeply damaged individual. While on death row, Hooper found Jesus and expressed a belief that his sins had been forgiven and that he would go to heaven following his execution.

Religious faith often grows stronger in people faced with death, including many death row inmates. Religion offers a promise that atonement can be meaningful, that redemption is possible, and that death is not the final answer. I recall a Christian chaplain trying to comfort me at the start of my brother’s death penalty trial by pointing out that many people throughout history have been “saved” on their way to the gallows. Knowing my brother’s views on religion, however, I was not comforted – but perhaps that had more to do with my own lack of faith than with my brother’s.

In 1999, Pope John Paul II, during his visit to the diocese of Saint Louis, Mo., appealed to the people of the United States (Catholics in particular) to seek an end to the death penalty. After citing many familiar arguments against the death penalty, including references to the system’s flaws and underlying cruelty, the pontiff stressed an issue that advocates, both pro and con, seldom talk about. He argued that we should not oppose the death penalty primarily because of what it does to those who’ve been condemned, but rather because of what it does to us.

New York no longer has a death penalty and NYADP is now focused on reducing violence and promoting restorative justice.

From David Love of Witness to Innocence

"Terry Williams Case Highlights the Need For Death Penalty Moratorium," is the title of David Love's latest Huffington Post essay.  He's the Executive Director of Witness to Innocence.

When Common Pleas Court Judge M. Teresa Sarmina stayed the execution of Terry Williams, she dealt a blow to the death penalty in Pennsylvania. Now the public has caught a glimpse of prosecutorial misconduct and evidence suppression in the application of the death penalty, and it isn't pretty.

In her order, Judge Sarmina -- a former prosecutor -- issued a scathing indictment of the prosecutor in that case for hiding evidence that Amos Norwood was allegedly, a sexual predator who had molested Williams and other children.

Sarmina said "evidence has plainly been suppressed," and accused former assistant D.A. Andrea Foulkes of engaging in "gamesmanship" and "playing fast and loose." The judge also said Foulkes "had no problem disregarding her ethical obligations" in an attempt to win.

And:

With 200 people condemned to death, Pennsylvania has the fourth largest death row in America. With no voluntary executions in the state in half a century, the tragic story of Terry Williams has reopened the debate on capital punishment. We do not know how many of death row inmates would be free or serving a lesser sentence, but for an ethically challenged prosecutor who believed in winning over seeking justice. Given what we know, now is as good a time as any to shut down Pennsylvania's broken death machine.

Earlier coverage of Terry Williams case begins at the link

Today's California Roundup

"Initiative seeks to end death penalty in California," is the AP report written by Paul Elias.  It's via the Redding Record Searchlight.

More Death Row inmates have died of natural causes, suicide and murder than have been executed since California re-instated capital punishment 35 years ago.

Supporters of Proposition 34, which seeks to abolish the state's death penalty, cite the $4 billion spent since 1978 in support of capital punishment. They say the money spent each year on housing condemned inmates and on the lengthy appeals process can be used instead to investigate unsolved murder and rape cases.

Opponents of the Nov. 6 ballot initiative counter that a death penalty system once labeled dysfunctional by California's chief justice should instead be fixed to quicken the pace of executions. Capital punishment supporters say it benefits public safety and gives solace to victims of violent crime.

If voters approve Proposition 34, inmates awaiting execution would have their sentences converted to life in prison without the chance of parole, which would also serve as the harshest sentence available in the state. In addition, $100 million in grants would be doled out to law enforcement agencies over the next four years to investigate cold cases.

While backers have a significant fundraising advantage, amassing $5.4 million compared to nearly $230,000 for opponents, they still face an uphill fight with voters.

The Contra Costa Times reports, "Palo Alto City Council throws support behind Proposition 34," by Jason Green.

The Palo Alto City Council has aligned itself with an effort to abolish the state's death penalty, reasoning that the considerable funds spent on executions would be better directed toward cash-strapped municipalities.

Council members voted 8-0 late Monday night to pass a resolution endorsing Proposition 34. The measure, which will appear on the Nov. 6 ballot, would trade the death penalty for a sentence of life in prison with no chance of parole as the maximum punishment for murder. Council Member Gail Price was absent.

"The question always comes up, 'Well, does this measure have anything to do with local governance?'" said Council Member Karen Holman, who along with Mayor Yiaway Yeh raised the idea of supporting the proposition in a colleagues' memo released last week.

Holman pointed out that local infrastructure and public safety grants have all but dried up since 2009. Meanwhile, the financially troubled state continues to spend $130 million annually on the death penalty system.

"Sister Helen Prejean, Church Leaders Urge Passage Of Prop 34," is by Tom Fudge for KPBS-TV.

A dozen ministers from Christian, Jewish and Islamic congregations gathered on a patio of the First Methodist Church in Mission Valley. They all urged their faithful to vote for Proposition 34 to repeal the death penalty.

The star of the gathering was Helen Prejean, a jocular Louisiana nun who has stood with six men at their executions. She is best know for writing the book "Dead Man Walking," which was made into a movie. She said California can set a national example by banning capital punishment.

“California is going to be a beacon on the hill,” she said. “Proposition 34 is going to be a decisive vote in this state, where people get to vote for life, which is where their hearts are anyway.”

Prop 34 would replace the death penalty with a life sentence, without the possibility of parole.

The religious leaders spoke of how the death penalty violates the sanctity of life and the promise of redemption.

"Executing the Death Penalty," by Joaquin Palomino in the East Bay Express.

Dan Turner posts, "The wrong reasons to end the death penalty," at the Los Angeles Times Opinion L.A. blog.

There are plenty of other good reasons to back the measure: Juries are more likely to award the death penalty if murder victims happen to have been white; capital punishment costs the state tens and possibly hundreds of millions of dollars a year, even though executions have stalled; a sentence of life without the possibility of parole keeps the worst killers behind bars until they die, meaning it protects society just as well as the death penalty. But none of these things appear to be terribly persuasive to California voters.

A recent USC Dornsife/Los Angeles Times poll found that Proposition 34 was losing 38% to 51%, but the gap narrows to statistical insignificance when voters are informed of two lesser-known aspects of the initiative: It would set aside $100 million to help police solve major crimes faster, and it would force former death row inmates to work and, if they owe restitution money to victims' families, to pay it. Both of these provisions were inserted into the initiative not because they will actually accomplish anything or because they represent good policy but because they pander to voters. And guess what? Voters like that, just as sheep respond to the lure of an untouched green meadow.

"No on 34," is the Riverside Press-Enterprise editorial.

No one disputes that California’s current approach to the death penalty is badly flawed. All executions are now on hold, thanks to a legal battle over the state’s method of lethal injection. But the state has rarely carried out executions anyway: Since California reinstated the death penalty in 1978, the state has executed just 14 prisoners — while 83 inmates on death row have died of natural causes in prison. The state now has about 725 inmates facing execution, most still in various stages of the lengthy appeals process that comes with a death sentence. The state last executed a prisoner in 2006.

But California would be better off reforming capital punishment to make it an effective sentence instead of scrapping the penalty altogether.

Earlier coverage of Prop. 34, the SAFE California ballot initiative, begins at the link; also available, more on Prop. 34 at SAFE Caliornia.

A Flagrant Conflict of Interest

That's the title of Lincoln Caplan's New York Times Taking Note blog post.

Last Friday, a state trial judge stayed Pennsylvania’s execution of Terrance Williams—scheduled for this Wednesday—and ordered a new sentencing hearing. In response to a motion from Philadelphia’s district attorney, the Pennsylvania Supreme Court could overturn the stay and order, putting the execution back on schedule. Yet the court’s chief justice has no business judging this case.

Chief Justice Ronald Castille has a classic and flagrant conflict of interest: he is passing judgment on a prosecution that he approved and oversaw, and on a trial judge’s ruling that strongly censured that prosecution. He was the Philadelphia district attorney in 1986 and accountable for the serious misconduct that led to Mr. Williams’ death sentence.

The current Williams defense team filed motions on Monday for the chief justice to either recuse himself, or refer the matter to his fellow justices, so he was not deciding his own case. But, within hours, Mr. Castille turned down both motions.

And:

When Mr. Castille was elected chief justice in 1993 on a law-and-order platform, his campaign boasted that he had put 45 criminals on death row, including Mr. Williams. He has called previous requests that he recuse himself “ethical lapses”—of the lawyers making the requests. And he has otherwise displayed untenable judicial ethics, as The Philadelphia Inquirer reported, receiving many gifts of dinners, event tickets, golf outings and plane rides, some from people with cases decided by his court.

With the decision not to recuse himself in this case, Mr. Castille has underscored his obtuseness about what basic fairness requires. He has diminished his position, the court he sits on and the rule of law in Pennsylvania. Even if the court upholds the trial court’s stay and order, as the merits dictate, its ruling will be badly tainted. And if it does not, the ruling will simply not be trustworthy.

"Philly DA wants to file new brief in death appeal," is an updated AP article, via the Erie Times-News.

For now, Williams has a stay of his scheduled execution. A state judge vacated his death sentence Friday and ordered a new sentencing hearing after finding that prosecutors hid evidence at his 1986 trial.

But Philadelphia prosecutors appealed to the state's high court to overturn that ruling and reinstate the death penalty in time to execute Williams today. Williams' death warrant expires at midnight, and prosecutors asked on Tuesday to respond to the objection filed by his lawyers.

The state Supreme Court could grant District Attorney Seth Williams' appeal, reject it or allow him to file another legal brief. Seth Williams is no relation to Terry Williams.

A second AP report examines Pennsylvania's execution protocol, "Condemned Killer Could Still Be Executed Wednesday."  It's via WCAU-TV.

If Terrance Williams is executed, it will be an event strictly supervised by the state.

For now, the 46-year-old Williams has a stay of his scheduled execution, which would be the first in Pennsylvania in more than a decade. A state judge has vacated his death sentence and ordered a new sentencing hearing after finding last week that prosecutors hid evidence at his 1986 trial.
 
But Philadelphia prosecutors have appealed to the state's high court to overturn that ruling and reinstate the death penalty in time to execute Williams on Wednesday. His death warrant expires at midnight.
 
If he is executed, his death would be carried out according to a bureaucratic script under the steely supervision of the state government.

The Pittsburgh Tribune-Review reports, "Execution’s stay won’t open ‘floodgates’ in Pennsylvania," by Adam Brandolph.

A Philadelphia judge’s decision last week that brought the state back from the brink of its first execution in more than a decade likely won’t have much of an impact on the remaining 199 inmates sitting on death row, legal observers say.

“Every one of these decisions is unique and idiosyncratic. Every one has his or her own circumstances, different backgrounds, different crimes,” said University of Pittsburgh law professor John Burkoff. “This won’t be precedential, and I don’t think the floodgates will open.”

Judge M. Teresa Sarmina on Friday stayed the execution of Terrance Williams, 46, who was scheduled to be put to death on Wednesday for the death of Amos Norwood, 56, a chemist and church volunteer.

Sarmina said prosecutors suppressed evidence that Norwood had sexually abused Williams as a teenager, a mitigating circumstance never heard by the jury that sentenced Williams to death in 1987.

“This case is a perfect storm of what can go wrong with the death penalty,” said Marc Bookman, executive director of the Atlantic Center for Capital Representation, a Philadelphia-based nonprofit that helps lawyers whose clients face the death penalty. “It’s really a learning moment for Pennsylvania.”

Bookman said Williams’ case may deter juries from imposing the death penalty.

“It’s inconceivable to me that this debacle would encourage our community to seek more executions. I think a lot of people learned from this all the mistakes that can happen, and it shows how frail and full of errors the death penalty can be.”

Earlier coverage of Terry Williams' case begins at the link.

More From Philadelphia

Andrew Cohen posts, "A Funny Thing Happened on the Way to the Execution," at the Atlantic.

Twenty-six years after the fact, too late but just in time, a measure of justice finally found Terry Williams on Friday when a Pennsylvania judge, a former prosecutor, stayed his October 3 execution and vacated a death sentence that had been unfairly imposed upon him in 1986. No reasonable review of Williams' case -- no evaluation of the evidence, no respect for his trial jurors or the victim's widow, no fealty to the Sixth Amendment's fair trial guarantees -- can sustain, in law or fact, the imposition of capital punishment here.

And yet today, seeking to defend an indefensible verdict, unapologetic about the misconduct of his predecessor, impervious to the dynamics of child sex abuse cases, tone-deaf to local politics and morality in the Age of Sandusky, unrepentant about misstatements to the state's parole board, Williams' prosecutor pushes on. I have been covering capital cases like this for 15 years and I can rarely remember an instance where a district attorney fought so willfully for so long for the right to do an injustice. It's a risible offense.

And:

Instead of accepting Judge Sarmina's reasoned judgment, instead of acknowledging that defendants like Williams are entitled to a meaningful remedy when the state cheats at trial, instead of preparing for a new sentencing hearing which would include all the relevant evidence, Williams' current prosecutor doubled down.

Late Friday, Seth Williams (obviously no relation) issued a statement that beggars belief. In Seth Williams' world, the prosecutor who cheated in 1986 in a capital case has been "unfairly victimized." In this world, he is obliged to "preserve the integrity of the jury's verdict and sentence" even though nearly half of that jury has walked away from its work. What "integrity" is left to protect about an inaccurate sentence? Seth Williams didn't say. But he was sure to tell the world that he doesn't want to make a villain out of the victim, Amos Norwood, the child sex predator.

None of this excuses what Terry Williams did. But it sure explains it, doesn't it? And isn't that the essence of what the sentencing phase of a capital trial should be about? Terry Williams is not getting away with anything, he's not cheating anyone, and that's never been the point of this round of appeals. If he is not executed, he will spend the rest of his life in prison, which is the sentence he almost certainly would have gotten in 1986 had prosecutors played by the rules, had jurors been given all the relevant evidence, and had a capital defendant been given adequate counsel.

But even this is not good enough for prosecutor Williams. He immediately appealed Judge Sarmina's ruling. Want to know why more and more Americans are skeptical of the death penalty, why the constitutional guarantees of due process and fair trials so often go unmet? It's because of cases like this one, where prosecutors cheat at trial and where their successors, decades later, cannot then admit, to themselves or the world, that such behavior undercuts confidence in the accuracy and integrity of the criminal justice system.

"Lawyers ask state's chief justice to step down from death row case," is the AP filing, via WITF-FM.

Lawyers for a death-row inmate facing a possible execution Wednesday want Pennsylvania's chief justice to step down from the case.

Lawyers for Terrance "Terry" Williams argue that Chief Justice Ronald Castille should recuse himself because Castille supervised Williams' death-penalty case when he was Philadelphia's district attorney.

WHYY-FM posts, "Terrance Williams safe for now, but D.A. falls short of 'zealous, ethical and effective' standards," by Aja Beech, a board member of Pennsylvanians for Alternatives to the Death Penalty.

Williams is one of over 200 people on Pennsylvania's death row and almost half of those people have come from Philadelphia. Of the 95 people on death row that have come from Philadelphia courts, approximately 18 of those cases were tried and sentenced to death in a period from 1983 until 1987, according to an execution list maintained by the state. (See document below.) This four-year period has come under great scrutiny because of issues such as the McMahon tapes, an instructional video made in 1986 by senior prosecutor at the time in the Philadelphia district attorney's office Jack McMahon on excluding "young blacks" from juries.

The verdict in the Williams hearing confirmed that the original prosecutor willfully withheld and suppressed important information relevant to the initial Williams case in the late 1980s, continuing the tragic saga of justice deferred in Philadelphia.

And:

Something is wrong with the capital punishment system in Pennsylvania, and our state is finally starting to see this. There are some in state government working to fix this problem, such as Senators Daylin Leach and Stewart Greenleaf, who on behalf of the bipartisan task force and advisory committee studying the death penalty in Pennsylvania, released a letter requesting "no execution be carried out in the Commonwealth" until the study is completed in December 2013. That we may be sure we are doing the right thing by proceeding with state executions; can we not wait a year until we are sure it is within the law and ethics of our state to do so?

Earlier coverage of Terry Williams' case begins at the link.

Time to Call Off Terrance Williams' Execution

That's the title of today's Philadelphia Inquirer editorial, and it begins today's coverage of the Terry Williams case.  Here's an extended excerpt:

The case for sparing the life of condemned killer Terrance Williams has never been more compelling than now, just days away from his scheduled appointment with Pennsylvania's executioner.

Working along two tracks, Gov. Corbett and the courts still have a chance to head off an irreversible injustice - and what would be the state's first execution in a half-century of someone who had not given up on appealing his death sentence.

The first opportunity comes Thursday, when the state Board of Probation and Parole is set to review its rejection of Williams' clemency bid. New evidence that weighs heavily in Williams' favor should be more than enough to convince two board holdouts to recommend commutation by Corbett to a life sentence.

Those revelations, coming in the last week during hearings before Philadelphia Common Pleas Court Judge M. Teresa Sarmina, establish that prosecutors should have given Williams' defense information that might have mitigated his sentence for killing a city man, Amos Norwood.

The disclosures support Williams' claim that he murdered Norwood after years of sexual abuse by the victim. Along with testimony from Williams' accomplice and chief accuser that he was pressured into portraying the killing solely as a robbery, some jurors in the 1986 trial have said they didn't know they could have sentenced Williams to life without parole as an alternative.

Whatever the pardons board decides, Sarmina has a clear duty when she convenes her court on Friday to enter what will be a historic ruling that would halt the Oct. 3 execution.

Presiding with methodical determination, the judge is herself a witness to how Williams, 46, was shortchanged by the state's flawed system of capital punishment. It's a system long prone to error, and known to put poor and minority defendants at greater risk of the death penalty.

Indeed, the legal twists and turns in this case - not to mention the endless appeals and court costs - make it a prime example of why the state should scrap the death penalty.

The Harrisburg Patriot-News publishes the OpEd, "Pennsylvania's big question: To kill or not to kill Terrance Williams," by Jeremy Ritch.

There is no doubt he killed his neighbor and had committed other criminal acts as a youth, including the death of a man that was ruled self-defense. To many, he is simply a hardened criminal and should pay for his crime. However, others feel because of the abuse that was inflicted there should be mercy by the court.

The other issue is that because he was convicted of second-degree murder, it seems somewhat extreme that capital punishment was even an option. As a Christian, I am opposed to the death penalty, but I do understand it is the law of the land in the state I reside in. That being said, I also believe that this particular case is a good reason to grant Williams his life and commute his sentence.

Our state was just shocked by the allegations of sexual abuse by former Penn State coach Jerry Sandusky and his ultimate conviction. We know all too well the damage this kind of crime does to children. For years, we have heard of victims of abuse within the Catholic Church coming forward and finally getting justice for their pain.

At the National Constitution Center's blog, Abigail Perkiss posts, "The purpose of clemency: The case of Terrance Williams."  Perkiss is an assistant professor of history at Kean University.

If Williams’ sentence is carried out on October 3, he will be the first non-voluntary execution in the state in 50 years.

But while some anti-death penalty advocates have painted Williams as a new figurehead for the abolition movement, at its heart this case is about the function of clemency in the American prison system.

As legal scholar Daniel T. Kobil argues, “clemency can be used to achieve justice, by individualizing sentencing and remitting undeserved punishment… Clemency, exercised in this way, can properly be said to be a fundamental part of any system of justice.”

The debate over clemency has a long history in the United States.

Earlier coverage of Terry Williams' case begins at the link.  In the next post, I'll have today's news coverage of the latest developments.

Advocates for Terry Williams have posted an online petition calling for clemency.

Williams' Commentary

"Williams v. Williams," is Lincoln Kaplan's post at the New York Times Taking Note blog.

Pennsylvania is scheduled to execute Terrance Williams next Wednesday, Oct. 3, the first time in 50 years that it will put someone to death who is still fighting his sentence.

Philadelphia’s District Attorney, Seth Williams, could ask for a stay and a fuller review of evidence. Instead, he’s crusading in favor of the death penalty, even writing an op-ed for The Philadelphia Inquirer called “Making the case for Williams’ execution.”

Terrance Williams’ life is on the line, and so is Seth Williams’ reputation.

"Death penalty morally wrong," is the Philadelphia Inquirer OpEd by Jonathan Zimmerman.  He teaches history at New York University.  Here's the beginning of this must-read:

Terrance Williams was sexually abused by the two men he killed, according to his lawyers. He was poorly represented at his trial, where jurors never heard about these circumstances. And the widow of one of his victims wants Williams' death sentence commuted.

But those aren't the strongest arguments for sparing the life of Terrance Williams, who is scheduled to be executed on Oct. 3. The best reason is the simplest: Capital punishment is inherently wrong, no matter the circumstances. And Philadelphians should understand that better than anybody else.

That's because the movement to abolish the death penalty in America began right here, in the City of Brotherly Love. On March 9, 1787 - just a few months before the drafting of the Constitution - Philadelphia physician and patriot Benjamin Rush delivered a stinging rebuke to capital punishment at a lecture in the home of another famous local patriot, Benjamin Franklin.

Part of Rush's argument would be familiar to us today: The death penalty won't deter the most vicious criminals. But his real concern - repeated until his own death in 1813 - was the effect of capital punishment on the rest of us.

At its root, Rush wrote, the death penalty "lessens the horror of taking away human life." Conducted in public, executions often devolved into drunken revelries of mirth and revenge.

Worst of all, the death penalty allowed human beings to determine life and death. Rush wasn't worried about whether capital cases were correctly decided, which is the issue that dominates our debate today. Instead, he insisted, the decision wasn't ours to make.

"'Vengeance is mine,' said the Lord," Rush declared, quoting Scripture. "A religion which commands us to forgive, and even to do good to, our enemies, can never authorize the punishment of murder by death."

Spearheaded by Rush, the movement against capital punishment scored some impressive early victories. In 1786, the year before his lecture at Franklin's home, Pennsylvania became the first state to abolish the death penalty for robbery, burglary, and sodomy - all capital crimes at the time.

"Public support for the death penalty 'is not what it used to be,' expert says," is Robert J. Vickers' Harrisburg Patriot-News column.

Though most Americans still favor the death penalty, public support for executions has dropped in the past few years.
    
Recent disclosures indicating death row convictions were made erroneously have caused many citizens to be more reticent about putting a convicted killer to death.
    
“The death penalty is not what it used to be in terms of public opinion,” said Frank Baumgartner, an expert on capital punishment at the University of North Carolina at Chapel Hill and the former head of political science at Penn State.
    
“People are not as certain about all these cases,” he said. “A majority of Americans still are happy to see an execution go forward, it’s not as many as a while ago because of the problems of innocence.”
    
A Gallup poll in 2011 shows 61 percent of Americans surveyed favor the death penalty, a solid majority to be sure. But that figure represented a 39-year low.
    
In Pennsylvania, the issue is murkier.
    
Only three convicts have been put to death since the punishment was reinstated in 1976.
    
Terrance Williams could become the first person executed in Pennsylvania in 13 years. Williams faces the death penalty for killing a Philadelphia man in 1984. His attorneys argue that Williams should be spared because the victim sexually abused him for years.
    
“Pennsylvania has not been an execution state traditionally,” said Robb Austin, a former Democratic state legislator now working as a Republican media consultant. “It has not been an issue in the public domain. I don’t think it would rise to the level of a campaign issue.”

Earlier coverage of Terry Williams' case begins with the preceding post.

Pennsylvania Clemency Board Meets Today

"A Push for Clemency as an Execution Nears," is the New York Times report by Jon Hurdle.  Here's the beginning of this excellent recap:

The scheduled execution of a convicted murderer has prompted pleas for clemency from thousands of people who argue that he should be spared because he had been sexually abused by his victim.

The inmate, Terrance Williams, 46, is scheduled to be executed by lethal injection on Oct. 3 for killing a man after what his supporters say was years of being abused by the victim, as well as by a teacher and an older boy who first raped him when he was 6.

Mr. Williams was 18 in June 1984 when he beat to death Amos Norwood, 56.

Mr. Williams was also found guilty in a separate trial of third-degree murder, which does not carry the death penalty, for the killing in January 1984 of Herbert Hamilton, 50, who had made sexual advances toward him, according to court testimony. Mr. Hamilton was stabbed and beaten to death.

If the execution is carried out, Mr. Williams would be the first convict put to death involuntarily in Pennsylvania since 1962. Since reinstating capital punishment in 1978, Pennsylvania has executed only three people, all of whom asked for death after having exhausted their appeals.

A petition urging Gov. Tom Corbett and the state’s Board of Pardons to commute Mr. Williams’s sentence to life without parole has been signed, his lawyers said, by about 286,000 supporters, including former judges, religious leaders, mental health professionals and 35 advocates for children, who say his crimes resulted from a long history of abuse.

“Terry’s acts of violence have, alas, an explanation of the worst sort,” the advocates for children said in a joint letter in support of clemency. “Terry lashed out and killed two of the men who sexually abused him and caused him so much pain.”

The scheduled execution is opposed by the Roman Catholic archbishop of Philadelphia, Charles J. Chaput, whose 1.5-million-member archdiocese has been shaken in recent years by evidence that some of its priests abused children.

The archbishop wrote in a weekly column on the archdiocese Web site that Mr. Williams deserved punishment but did not deserve to die because a judicial execution would perpetuate the “wrongheaded lesson of violence ‘fixing’ the violent among us.”

Mr. Norwood’s widow, Mamie, has also asked for clemency for Mr. Williams. Ms. Norwood, 75, wrote that she had been “angry and resentful” toward Mr. Williams for many years but later concluded that the only way to have a “peaceful and happy” life was to forgive him.

“I do not wish to see Terry Williams executed,” Ms. Norwood said in a signed declaration filed with the court, the prosecutor’s office and the Board of Pardons. “His execution would go against my Christian faith and my belief system.”

Pressure on Governor Corbett, a Republican, has also come from the Pennsylvania Task Force and Advisory Committee on Capital Punishment, a bipartisan group that includes state lawmakers. On Thursday, the panel asked the governor to postpone planned executions until it completes a study of the death penalty and announces its findings in December 2013.

The case continues a recent focus on the sexual abuse of children in Pennsylvania after Jerry Sandusky, a former Pennsylvania State University football coach, was convicted of abusing young boys, and Msgr. William J. Lynn, a former senior official in the Archdiocese of Philadelphia, was convicted of child endangerment for failing to stop abuse by priests under his supervision.

"Clemency hearing in Harrisburg set for condemned Pa. killer," is the AP filing, via the Harrisburg Patriot-News.

A condemned killer who claims he was sexually abused by the man he beat to death is set for a clemency hearing today before Pennsylvania’s Board of Pardons in Harrisburg.

Terrance “Terry” Williams is scheduled to be executed next month for killing a Philadelphia man in 1984. He says he fatally beat Amos Norwood with a tire iron following years of sexual abuse.

Today's hearing isn’t the only legal avenue Williams is pursuing to avoid execution. A judge has granted a new evidence hearing after an accomplice claimed he knew Williams was abused but authorities with whom he had a plea agreement told him to focus on a robbery motive instead. 

WHYY-FM NewsWorks posts, "Board of Pardons to hear case of Philly prisoner sentenced to die Oct. 3," by Emma Jacobs.

A commission on the death penalty convened by the Pennsylvania Legislature wants Gov. Tom Corbett to delay an execution scheduled for next month.

The request comes as the state Board of Pardons holds a hearing on whether to let Terry Williams of Philadelphia be executed Oct. 3.

State Sen. Daylin Leach, who represents Montgomery and Delaware counties, co-led the caucus that sent a letter to the governor asking for a stay of execution pending its December report.

"We feel waiting a few more months to make sure that we're doing it right, that we're doing it fairly, that it is worth doing, all of those things is a reasonable approach to take," said Leach, a Democrat. "And that's what we've asked the governor to do."

The Harrisburg Patriot-News publishes an OpEd, "Justice? Pennsylvania is set to execute its first prisoner since 1999," by William DiMascio.  He's executive director of the Pennsylvania Prison Society.

On Oct. 3, Pennsylvania is slated to perform its first execution in more than a decade. As the date rapidly approaches, Pennsylvania finds itself astride another great moral controversy: Should the state carry out the lethal injection of a man convicted at 18 of murdering a predator who might have repeatedly and violently sexually assaulted him?

In a state weary of accounts of traumatic abuse in churches and athletic facilities, Terrance Williams sits on death row awaiting the end of a tragic life that spanned the assaults of predatory men since he was 6 years old. It’s easy to decide cases where good versus evil but much more difficult to mete out justice when victims oppose victims.

Mamie Norwood, widow of the man Williams and an accomplice killed in 1984, favors sparing Williams from execution. Her preference would be a commutation of Williams’ sentence to life without parole. The state Board of Pardons will hear an appeal for clemency for Williams on Monday.

"What Would Be Gained by the Execution of Terry Williams?" is David A. Love's post at Huffington Post.  He's the executive director of Witness to Innocence.

There's an execution planned in Pennsylvania, the first one in thirteen years. Gov. Tom Corbett signed a death warrant for Terrance "Terry" Williams. Barring intervention from the Governor, the Pennsylvania Board of Pardons, or the Philadelphia District Attorney, Williams will be executed on October 3.

But the execution should not go forward.

Two things stand out about the case of Terry Williams: First, he allegedly suffered a traumatic childhood of sexual and physical abuse, and ultimately killed two of his alleged abusers. Second, a broad coalition of organizations, religious leaders, advocates and others -- including the widow of one of his victims and several of the jurors who convicted him -- are calling for clemency for Terry.

Love also writes, "Push to shut down Pennsylvania’s death row focuses on man who killed his sexual abuser," for the Grio.

Unless the state’s Board of Pardons prevents it, Pennsylvania is about to execute Terrance “Terry” Williams, 46, who was sent to death row for the 1984 murder of Amos Norwood, a man who had sexually abused him as a child.  Months earlier, Williams had killed another man who had raped him. Gov. Tom Corbett set an execution date of October 3, which would make Williams the first person put to death in Pennsylvania in 13 years.

Prosecutors characterized Williams as a serial killer, but the jurors never heard evidence of the years of horrific abuse he suffered from older men. Now, judges, prosecutors, child advocates, the jurors who found him guilty, and the widow of his victim all say his life should be spared. Moreover, over 345,000 people have signed a petition on Change.org calling for clemency for Williams. Such a viral show of support for a death row inmate has not been seen since Troy Davis a year ago this week.

Terry Williams’ case has exposed the inherent flaws in the administration of the death penalty, and has acted as a catalyst in the push for a death penalty moratorium in the Keystone state.

Earlier coverage of Terry Williams' case begins at the link.

Advocates for Terry Williams have posted an online petition calling for clemency.  You can find out more about the case and read the entire clemency petition filed with Pennsylvania Board of Pardons.

Related posts are in the clemency and victims' issues index.