The StandDown Texas Project

The Open Government Lawsuits on Executions - Arizona, Idaho Updates

Today's Arizona Republic reports, "Motion denied to watch executions by injection."  It's by Michael Kiefer.

Despite strong language from the 9th U.S. Circuit Court of Appeals and a 2002 appeals-court ruling, a federal judge in Phoenix on Wednesday denied motions to allow attorneys and reporters to watch as executioners insert the catheters that carry the drugs used in lethal injections for condemned prisoners.

The Federal Public Defender's Office in Phoenix and other defense attorneys have complained about the practices of the Arizona Department of Corrections in carrying out executions by lethal injection. Among the concerns are the qualifications of those who insert IV lines into the condemned prisoners and why they repeatedly fail to find suitable veins in the prisoner's arms and must resort to a surgically installed catheter in the groin area.

On May 15, the day before death-row prisoner Samuel Lopez was to be executed for the 1986 murder of a Phoenix woman, his attorneys filed a motion with U.S. District Judge Neil Wake, asking to be allowed to witness the catheterization. Wake did not rule on the motion. But the subject had come up in oral arguments on May 14 in a last-ditch appeal to the 9th Circuit.

Of concern in that appeal was a March execution in which the condemned man was not allowed to speak to his attorney when prison staff was unable to find a suitable vein in his arm and instead inserted the catheter in his groin.

The appeals court refused to stop Lopez's execution, but one of the judges questioned why the media had not insisted on being present when the lines were inserted. The state of Ohio and California allow such witnessing, and a 2002 9th Circuit opinion ruled that the public has a First Amendment right to witness all aspects of an execution.

Lopez subsequently received a reprieve from the Arizona Supreme Court until June 27 because of problems with the state clemency board.

A coalition of Arizona journalism groups took up the challenge and asked to become part of the lawsuit over the Corrections Department policies.

That same day, another group of journalists in Idaho filed its own lawsuit asking to witness the preparation process on First Amendment grounds.

But Wake denied the Arizona motions Wednesday, citing technicalities in the timing of the motion and saying that a First Amendment violation had not been properly claimed.

From Idaho, "State: Privacy of executioners trumps media access," is the AP report by Todd Dvorak.  It's via the Idaho Statesman.

Idaho prison officials said their efforts to protect the identity of execution team members and the privacy of the condemned inmate outweigh any reason to allow witnesses to view lethal injections from start to finish.

Officials defended the policy in a court filing late Tuesday, responding to a federal lawsuit filed this month by more than a dozen Idaho news groups challenging the limitations on viewing executions.

Like most states with lethal injection, Idaho pulls the curtain back during the first few steps of an execution, including the insertion of IV needles into the condemned inmate.

The Associated Press and 16 other news organizations say reporters — and by extension the public — should view all phases of the execution to accurately report the events or any complications that emerge.

Prison officials say expanding access simply invites too many risks.

Even if executioners are covered in surgical gear and masks, a chance remains they could be identified, making it even more difficult to recruit and retain team members, according to the brief.

The state Department of Correction also has an interest in "shielding the medical team from possible anxiety and stress of performing an ordinary medical procedure before an audience knowing that a delay or mishap will be reported," Deputy Attorney General Michael Gilmore wrote.

The chance of complications arising is a primary reason the news groups are pressing for expanded access, arguing the First Amendment gives media and the public the right to view executions in their entirety.

In recent years, several high-profile cases have raised questions about how states conduct lethal injections, including two cases in Ohio — a state that allows full access — when execution staff couldn't immediately find the inmate's vein. In one of those cases, officials halted the execution and the inmate remains on death row.

The lawsuit filed by the news groups relies heavily on a 9th U.S. Court of Appeals ruling on a 2002 California case. The court rejected the state's argument that allowing witnesses throughout the execution would compromise efforts to keep secret the identity of the execution team.

Earlier coverage of the Arizona and Idaho open government lawsuits at the links.

Idaho Execution Protocol Lawsuit Update

"Mediation ordered in Idaho execution policy suit," is the AP post, via CBS News.

A federal judge has ordered mediation talks between Idaho prison officials and more than a dozen news organizations that are challenging a policy that limits public access to lethal injection executions.

U.S. District Judge Edward J. Lodge handed down the order Thursday, two days after The Associated Press and 16 other news organizations filed a lawsuit seeking to force the Idaho Department of Correction to let witnesses view the execution process from start to finish.

The lawsuit is not intended to obstruct the state's June 12 scheduled execution of convicted murderer Richard Leavitt. Instead, it focuses on a narrow section of the agency's execution protocol.

Like most states with lethal injection, Idaho's policy bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public.

Lodge's order requires the parties to quickly begin nonbinding mediation on or before June 1 under the supervision of Magistrate Judge Candy Dale.

"Any opportunity to mediate a case is a positive development for both parties," said Chuck Brown, the Lewiston attorney representing the news groups. "It avoids some of the uncertainty of how a third party, in this case a judge, might rule in the future."

Earlier coverage of the Idaho lawsuit begins at the link.

California & the FDA Litigation

"Calif. defies order to turn over execution drug," is the AP report, via the Stockton Record.

California on Friday joined other states in defying a federal government order to turn over a key execution drug.

At issue is the drug sodium thiopental, one of three drugs California and dozens of other states use in lethal injections. It puts the inmate to sleep before fatal doses of two other drugs are delivered. California and others have been purchasing the drug oversees since the United States' sole manufacturer ceased production of the anesthetic in 2011.

U.S. District Judge Richard Leon in March ruled that the Food and Drug Administration erred in allowing the prisons to import the foreign-made drug. The judge ordered the FDA to confiscate all foreign-made sodium thiopental and to warn prisons that it was now illegal to use the drug. The FDA followed the Washington D.C.-based judge's order and sent demand letters to prisons. But beginning with Nebraska on April 20, more than a dozen states have refused to comply with the FDA order.

On Friday, California joined the protest in a letter sent to the FDA. With 725 Death Row inmates, California has the highest number of condemned prisoners.

California Department of Corrections and Rehabilitation lawyer Benjamin Rice and the other states with foreign-bought sodium thiopental contend they aren't bound by the ruling made by a federal judge in Washington D.C.

Earlier coverage of Judge Leon's ruling and the FDA litigation begins with the preceding post.

Capital Punishment’s Latest Folly

That's the title of a New York Times editorial.  It appeared in the Saturday edition.

The history of capital punishment in this country has had many horrifying turnings, few more macabre than a warning from states employing lethal injection that a federal court ruling has left them facing a shortage of the imported drug they rely on to kill death-row felons.

The scarcity arose after the one domestic manufacturer stopped making sodium thiopental in 2010. In March, Judge Richard Leon of Federal District Court in Washington blocked the importation of the drug, ruling the Food and Drug Administration had not approved it for “safety and effectiveness,” as required for imports. The F.D.A.’s position was that reviewing such a drug designed for death “clearly falls outside of F.D.A.’s explicit public health role.”

Thirty-three states use lethal injection, and 15 of them have asked the Department of Justice to appeal Judge Leon’s ruling. The judge’s decision is a wise and welcome one that the Justice Department should accept. Capital punishment should be outlawed in all its forms, as it is in most advanced societies.

The lethal-injection quandary is playing out in a second lawsuit brought by The Associated Press and other news organizations to challenge five states that are violating a 2002 federal court mandate that the law requires every step of execution to be witnessed in behalf of the public. When the death chamber curtains have been drawn lately in Idaho, Washington, Montana, Arizona and Nevada, the main insertion of the lethal injection has already occurred. Some subjects have been seen to barely move, with suspicions arising about some inhumane trauma taking place out of sight.

"DOJ appeals injunction on import of death penalty drug," is the Friday afternoon post by Alison Frankel for ReutersLegal.

On Friday, the U.S. Department of Justice filed notice that it is appealing an injunction barring the Food and Drug Administration from permitting states to import the anesthetic thiopental as a death penalty drug. U.S. District Judge Richard Leon of federal court in Washington, D.C., entered the injunction on March 27, after concluding that the FDA was violating the Food, Drug, and Cosmetic Act when it permitted an unapproved drug to be brought into the country from a London wholesaler. (A U.S. supplier stopped making the drug in 2009.) The judge said the FDA had to abide by the same rules it imposes on everyone else.

"The FDA has acted inconsistently with FDA regulations, acted inconsistently with its longstanding practices, and acted in a manner contrary to the purpose of the FDCA, thereby threatening the public health," Leon wrote.

The death penalty prisoners who brought the thiopental case are represented by Sidley Austin, which is handling the suit pro bono. But Sidley also has a roster of pharmaceutical clients who want their regulator to adhere to limits on its discretion. It turns out that Sidley is developing a microniche business of demanding government accountability for clients who allege they're the victims of agency overreaching.

"FDA Is Appealing Court Bar to Drug Used in Executions," is the Bloomberg report by Tom Schoenberg.

The U.S. Food and Drug Administration is appealing a federal judge’s order that banned the importation of sodium thiopental and its use in executions.

The FDA, which filed a notice of appeal today in the federal court in Washington, is seeking to overturn a ruling in March favoring 21 death row inmates who challenged the agency’s use of sodium thiopental, an imported drug given as anesthesia before a lethal injection is administered.

U.S. District Judge Richard Leon held that the agency violated its own rules by allowing the drug into the country without first ensuring its effectiveness. Leon said the agency created “an unnecessary risk” that prisoners “will not be anesthetized properly prior to execution.”

Leon said the agency had created a “slippery slope” for the entry of other unapproved drugs.

The judge banned the import of thiopental, calling it a misbranded and unapproved drug, and directed Arizona, California, Georgia, South Carolina and Tennessee and any others with stocks of the barbiturate to send them to the FDA.

On May 21, 15 state attorneys general sent U.S. Attorney General Eric Holder a letter urging the department to appeal Leon’s ruling. The legal officers said the case was wrongly decided and might impair states’ ability to execute prisoners.

In a lawsuit filed in February 2011, the inmates said the FDA allowed states to import “bulk amounts” of thiopental. The drug hasn’t been sold in the U.S. since 2009, when the sole U.S. manufacturer, Hospira Inc. (HSP), stopped producing it.

The Memorandum Opinion in Beaty v. FDA and the District Court's Order are available in Adobe .pdf format.

Coverage of Jude Leon's ruling begins at the link.  Related posts are in the lethal injection category index; notable posts include:

• 15 State Attorneys General Seek DoJ Help on LI Drugs
• The Idaho Lawsuit
• FDA Orders Nebraska to Surrender Foreign Thiopental; Letters to Other States
• South Dakota AG Defiant Over FDA Order to Hand Over LI Drugs

The Idaho Lawsuit

The Complaint for Declaratory Judgment and Injunctive Relief is available in Adobe .pdf format.

"AP, news groups sue Idaho over execution access," is the AP report, via the Idaho Press-Tribune.

The Idaho Press-Tribune, along with the Associated Press and 16 other organizations, sued the state of Idaho Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution.

The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12.

The AP was joined in the lawsuit by the Idaho Press Club, Idahoans for Openness in Government, the Idaho Statesman, The Times-News, Lewiston Tribune, Moscow-Pullman Daily News and The Spokesman-Review.

Also joining was Pioneer Newspapers, which owns the Idaho Press-Tribune, the Idaho State Journal, the Rexburg Standard Journal and others.

Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public.

Some death row inmates have challenged the constitutionality of lethal injection executions in court, contending that the insertion of the IVs can be easily botched, causing severe pain for the condemned.

And:

The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.

Since the ruling, only one state under the court’s nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

Most states nationwide do the same. Of the 27 states that have lethal injection outside of the circuit’s jurisdiction, only Ohio and Georgia allow witnesses to see the entire process.

The Spokane Spokesman-Review posts, "Press sues state over restricted media witness access to portions of executions."

The press had been in discussion with the state Department of Correction about the process since before its earlier execution of Paul Ezra Rhoades in November, and the department promised to review its procedures after that execution to address the concerns. However, it decided to make no changes, prompting the lawsuit. The lawsuit was filed today in U.S. District Court; in addition to the AP, plaintiffs include the Idaho Press Club, Idahoans for Openness in Government, the Idaho Statesman, The Spokesman-Review, and other news organizations from across the state.

And:

The 2002 9th U.S. Circuit Court of Appeals case was brought by the California First Amendment Coalition against California Department of Correction officials. The court found that preventing reporters — and through them, the public — from viewing all aspects of executions is an unconstitutional violation of the First Amendment.

The news media must be allowed to witness executions in their entirety so that the public can have an informed debate about whether execution by lethal injection meets the evolving standards of decency present in a maturing society, the court found.

“To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the 'initial procedures' which are invasive, possibly painful and may give rise to serious complications,” Judge Raymond Fisher wrote for the unanimous three-judge panel that heard the case.

The 2002 ruling by the 9th Circuit came in the case, California First Amendment Coalition v. Woodford, 299 F.3d 868,

Earlier coverage of the Idaho lawsuit begins in the preceding post.

Arizona Republic on the Clemency Mess

"Clemency board is now a charade," is the Arizona Republic editorial.

Asserting that a prisoner had received "incompetent legal counsel" has become a fairly commonplace defense of death-row inmates.

But accusing the state clemency board of incompetency?

That is a novel development in the nation's long-running fight over the death penalty. Only in Arizona.

But that accusation, sensationaly lodged this month by an attorney representing a death-row inmate, has led to a legitimate question about the material significance of a "clemency" board that is intentionally stacked to avoid recommending clemency.

If the person vested with the power to grant clemency -- in this case Gov. Jan Brewer -- so dislikes granting forgiveness to convicts that she will stack the board with (presumably) anti-clemency hard cases, then why bother with a "clemency" charade at all?

And:

The governor appears to have been displeased with being forced to consider all the clemency recommendations that the previous board had been sending to her. So she sought resignations from three of them, including longtime chairman Duane Belcher and Marilyn Wilkens, who was appointed in 2010 by Brewer herself.

The mandate of this new clemency board could not be clearer. Trouble this governor with clemency recommendations at your peril.

Those are disturbing marching orders. Thanks to the Brewer purge, Arizona no longer has a mechanism that can reliably -- which is to say, independently -- reconsider whether justice was done. And that is very dangerous.

Earlier coverage of Arizona clemency issues begins at the link.  Related posts are in the clemency index.

Conservative Group Sues to Remove California Ballot Initiative

"Bump California death penalty measure from November ballot, group says," the Silicon Valley Mercury News report by Howard Mintz.

A law-and-order group on Monday asked a state appeals court to bump a measure off the November ballot that would repeal California's death penalty, arguing that it violates a state rule against proposing multiple reforms.

The ballot language is "deceptive" and conflicts with the state's limit of voter initiatives to a single subject, the Criminal Justice Legal Foundation argues in a petition filed with the Sacramento-based 3rd District Court of Appeal.

The foundation brought the lawsuit on behalf of Phyllis Loya, the mother of a Pittsburg police officer fatally shot in 2005 whose killer was sent to death row by a Contra Costa County jury.

The SAFE California Act would abolish the death penalty, clear the state's death row and replace capital punishment with life in prison without the possibility of parole. But the measure also provides for shifting as much as $100 million used for death penalty costs to a fund that would pay for solving murder and rape cases.

The lawsuit argues that the measure contains conflicting proposals that combine unrelated reforms into a single ballot argument. "This kind of manipulation ... is exactly what the single-subject rule was put in the constitution to prevent," said Kent Scheidegger, the foundation's legal director.

"Lawsuit seeks to keep death penalty off ballot," is the AP filing, via the Reporter.

A victims' rights group is seeking to remove from the November ballot a measure that would abolish the death penalty.

The Criminal Justice Legal Foundation filed a petition with the California Court of Appeal on Monday. The Sacramento-based group argues the initiative violates a state law limiting propositions to single subjects. If passed, the measure would abolish the death penalty and allocate $100 million saved from eliminating death row to law enforcement agencies to help solve murder and rape cases.

The group charges the ballot measure is driving a "wedge" between two types of crime victims, those who support the death penalty and those yearning for solutions to unsolved cases.

The Sacramento Bee reports, "Take death penalty repeal off California ballot, court is urged."  It's by David Siders.

The Sacramento-based Criminal Justice Legal Foundation petitioned the 3rd District Court of Appeal Monday to remove from the November ballot a proposal to abolish the death penalty in California, arguing it violates the state's "single-subject rule" for initiatives.

The foundation said abolishing the death penalty while also authorizing the distribution of $100 million to local law enforcement agencies to help solve murder and rape cases violates a requirement that ballot measures address only one subject.

And:

Supporters of abolishing the death penalty said the litigation is baseless. Former San Quentin Warden Jeanne Woodford said in a prepared statement that the ballot measure is "about one thing and one thing only: ensuring that those who commit the most serious crimes in our state are caught and held accountable. Every aspect of the initiative is connected to that goal."

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

Naari Recalls Nebraska's Batch of Sodium Thiopental

Today's Lincoln Journal Star reports, "Company recalls Nebraska's lethal injection drug."  It's by Kevin O'Hanlon.

A Swiss pharmaceutical company has notified the U.S. Food and Drug Administration that it is recalling a supply of the lethal injection drug sodium thiopental held by Nebraska, which could leave the state without a means to carry out executions for the foreseeable future.

"The product is being recalled from the market because it was illegally diverted from the company's supply chain and has been outside the company's control in breach of Naari AG's established standard operating practices," Naari AG says in a document sent to the FDA.

The Journal Star obtained a copy of the document, in which Naari asks that Nebraska officials "immediately quarantine and return to us or FDA any product in your possession. ... The product is being removed from the market with the knowledge of the U.S. Food and Drug Administration."

Sodium thiopental has been in short supply since 2010, when the only U.S. manufacturer, Hospira Inc., ended production because of death-penalty opposition from overseas customers. After that, the European Union banned the export of some barbituric acids, including sodium thiopental, further diminishing the drug's availability for use in lethal injections.

Last year, Nebraska prison officials bought a supply made by Naari from a middleman named Chris Harris, and his company Harris Pharma LLP.

Attorney Jerry Soucie of the Nebraska Commission on Public Advocacy, who represents death-row inmate Michael Ryan, has been arguing that Nebraska should not be allowed to use it because Harris was not authorized to sell the samples meant for use in testing. That, he contends, means Harris misappropriated the thiopental, and Nebraska is in possession of stolen property.

Nebraska prison officials refused a request by Naari to return the drug. Last month, the FDA ordered them to contact the FDA and make arrangements to turn over "any foreign-manufactured thiopental in your possession."

The letter followed a recent ruling by U.S. District Judge Richard Leon that said the FDA ignored the law in allowing foreign-made sodium thiopental into the country.

Similar letters from the FDA went to Arizona, Arkansas, California, Georgia, South Carolina, South Dakota and Tennessee.

Earlier coverage of the Nebraska stock of sodium thiopental begins at the link.  Related posts are in the lethal injection index.

Anthony Bartee Execution Sayed by Federal District Court

"Convicted Texas killer gets stay of execution," is Karen Brooks' Reuters post, via the Chicago Tribune.

A Texas man won a stay of execution on Wednesday for the second time this year, just hours before he was set to die for the killing of a man authorities say was targeted for his Harley Davidson motorcycle.

Anthony Bartee, 55, was set to die by lethal injection on Wednesday evening for the 1996 robbery and killing of David Cook, according to a report by Texas Attorney General Greg Abbott.

On Wednesday afternoon, a U.S. district judge in San Antonio stayed his execution after Bartee' attorneys filed a civil lawsuit against the Bexar County district attorney demanding more DNA tests on crime scene evidence.

An appeal by Bexar County prosecutors went to the U.S. 5th Circuit Court of Appeals, which told officials Wednesday evening that it would not be ruling immediately - guaranteeing that Bartee would not be executed before midnight and keeping the stay in place. A new date will have to be set for the execution.

The AP filing is, "Texas man's execution halted for now," by Michael Graczyk.  It's via the Fort Worth Star-Telegram.

The decision by the 5th U.S. Circuit Court of Appeals came after attorneys for Anthony Bartee filed a civil rights lawsuit against the district attorney in Bexar County, where Bartee was convicted of the 1996 shooting and stabbing death of David Cook in San Antonio.

"I'd like to thank everyone for supporting me through these trials and tribulations," Bartee told a Texas Department of Criminal Justice official who informed him of the reprieve. "Put peace in your heart. God is working through all of us. And God bless us all."

The court decision came about 90 minutes after Bartee could have been put to death. Texas prison authorities won't carry out the lethal injection if appeals are unresolved.

The civil rights action was filed just hours before the six-hour execution window opened at 6 p.m. CDT Wednesday. The U.S. Supreme Court already had rejected other appeals from Bartee's lawyers.

"Convicted killer's death postponed," by Michelle Mondo for the San Antonio Express-News.

Wednesday's last-minute lawsuit filed by Dow argues that his client's civil rights were violated when prosecutors opted not to test glasses and cigarette butts gathered as evidence from Cook's house.

With fewer than four hours until Bartee would be put to death, Chief U.S. District Judge Fred Biery, based in San Antonio, granted a stay in response to the civil rights suit brought by Dow against District Attorney Susan Reed. The DA's Office appealed that ruling to the 5th U.S. Circuit Court of Appeals, which decided Wednesday night that additional briefs needed to be filed by both sides.

Earlier coverage of Anthony Bartee's case begins at the link.

Lethal Injection Drug Update From Nebraska

"Bruning asks FDA to fight drug order," is the title of Martha Stoddard's report in the Saturday Omaha World-Herald.

Nebraska Attorney General Jon Bruning is urging federal officials to appeal a court order regarding a drug used in executions.
Bruning made the request in a letter sent Friday to the U.S. Food and Drug Administration.

At issue is whether Nebraska must turn over to federal officials its supply of sodium thiopental, one of three drugs used to carry out lethal injections.

U.S. District Judge Richard Leon ordered the FDA on March 27 to notify all state corrections departments having “any foreign manufactured thiopental” that use of the drug is illegal. He further ordered the return of all such thiopental to the FDA.

Last week, an FDA official sent a letter asking Nebraska to make arrangements for returning its supply of the drug.

Bruning responded with the Friday letter, which said the U.S. district court ruling “was clearly wrong” and contrary to a 1985 U.S. Supreme Court decision.

“Other than the court's erroneous order, we are unaware of any evidence or reasons why the Department of Correctional Services should be required to return any thiopental in its possession,” the letter stated.

The letter did not question whether the court order applied to the Nebraska supply of sodium thiopental.

Bruning brought up that issue in a press release, which said the case before Leon had no bearing on the sodium thiopental in the possession of the Nebraska Department of Correctional Services.

"Bruning urges FDA to appeal lethal injection drug ruling," is by Kevin O'Hanlon for the Lincoln Journal Star.

Nebraska's letter to the FDA says Leon's ruling "was clearly wrong and contrary" to the 1985 U.S. Supreme Court decision in Heckler v. Cheney. That ruling gave complete authority to the Secretary of Health and Human Services "to decide how and when" to enforce provisions of the federal FDA Act.

Jerry Soucie of the Nebraska Commission of Public Advocacy, who represents death-row inmate Michael Ryan, has been arguing that Nebraska should not be allowed to use the sodium thiopental made by Naari.

Nebraska bought the drug from a middleman named Chris Harris, who had bought it from Naari.

Soucie said Harris and his company, Harris Pharma LLP, were not authorized to sell the drug, which was in the form of samples meant for use in testing. That, he contends, means Harris misappropriated the thiopental from Naari, and Nebraska prison officials are in possession of stolen property.

Nebraska is among 10 states that have purchased the drug from foreign sources. The U.S. Drug Enforcement Administration has seized supplies from several because they were imported illegally or because of questions over how they were manufactured. 

Nebraska twice has bought sodium thiopental made overseas. The DEA did not seize the first batch but told the state it could not use it because it was imported illegally. Nebraska then got an import license and bought the supply from Harris.

Sodium thiopental recently became even harder to get after the European Union began to prohibit export of some barbituric acids, including sodium thiopental.

In his ruling, Leon said the FDA was undermining its own policy of maintaining a closed drug distribution system designed to keep dangerous drugs out of U.S. commerce.

"Fight with feds over controversial execution drug doesn't have Nebraska leaping to make change," is the AP filing by Margery A. Beck.  It's via the Republic.

As Nebraska officials seek to fend off attempts by federal authorities to take the state's supply of a drug used in executing death row inmates, the tug-of-war has some wondering why state officials don't simply use a different drug.

As Maren Chaloupka, a Scottbluff attorney who has represented death row inmates, puts it, "I've wondered that myself. It seems to be just bullheadedness."

At the center of the controversy is the state's supply of sodium thiopental, an anesthetic used to put inmates to sleep before other lethal drugs are administered during an execution. Like many other states, Nebraska obtained a stock of the drug from a foreign supplier after the drug's U.S. manufacturer announced last year it would no longer produce it.

But unlike many other states, Nebraska has fought for more than a year to cling to its supply.

Nebraska's first batch of the drug obtained from an India-based drug company in January 2011 was ruled to have been illegally imported. The state then obtained a new batch from another Indian source late last year, but the Swiss manufacturer of the drug, Naari AG, said that the sodium thiopental that Nebraska bought was a sample intended only to be used for evaluation purposes as an anesthetic in Zambia.

Then, last month, a U.S. judge found the federal Food and Drug Administration wrongly allowed other states to import the drug. U.S. District Judge Richard Leon also ordered the FDA to immediately notify any state correctional department with foreign-manufactured thiopental that its use is prohibited by law, and that the drug must be returned to the FDA.

On Friday, the Nebraska attorney general's office refused a request from the FDA to turn over Nebraska's batch of sodium thiopental. The attorney general instead suggested the FDA appeal the federal judge's ruling.

Many of the nation's other 33 death penalty states — including Texas and Arizona — have switched to an alternative anesthetic, pentobarbital.

The Nebraska Attorney General's office referred questions about whether state officials would consider changing to a different anesthetic for lethal injections to the Department of Correctional Services.

Earlier coverage of the Nebraska lethal injection drug dispute begins at the link.

FDA Orders Nebraska to Surrender Foreign Thiopental; Letters to Other States

Today's Omaha World-Herald reports, "State asked to return death drug."  It's by Paul Hammel.

The State of Nebraska has been asked to return to federal officials its supply of sodium thiopental, one of the three drugs used for lethal injection executions.

But a spokeswoman with the Nebraska Attorney General's Office said the request, mailed April 10 by the Federal Drug Administration, will have no impact on the state.

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said the request, sent after a court ruling last month, has no bearing on Nebraska.

She said the drug referenced in the court decision was purchased from a supplier in India, Dream Pharma, and was previously detained by the FDA as an unapproved and misbranded drug.

"Nebraska's supply was purchased from a different supplier and was approved for importation by the U.S. DEA, FDA and Customs," Kingery said, in a prepared statement.

U.S. District Judge Richard Leon of Washington, D.C., ruled March 27 that the FDA ignored federal law by allowing sodium thiopental, used in lethal injection executions in Nebraska and several other states, to be imported, saying it is an unapproved drug.

The judge ordered the FDA to immediately notify any state corrections departments that possessed foreign-manufactured sodium thiopental that its use is prohibited by law.

That order presumably included Nebraska, which purchased the drug from a Swiss provider. A letter April 10 asked Nebraska to make arrangements to return "any foreign-manufactured thiopental in your possession."

And:

Lincoln defense attorney Jerry Soucie said Wednesday that he is trying to determine what impact the court ruling would have on any future executions.

A Nebraska corrections department spokeswoman said the department would work with the AG’s office on a formal response to the FDA.

"FDA tells state to surrender lethal injection drug," is the Lincoln Journal Star coverage written by Kevin O'Hanlon.

The U.S. Food and Drug Administration has ordered Nebraska to surrender its supply of the lethal injection drug sodium thiopental.

An April 10 letter from the FDA to state Corrections Director Robert Houston orders prison officials to contact the FDA at "your earliest convenience to make arrangements for the return to FDA of any foreign-manufactured thiopental in your possession."

The letter followed a recent ruling by a federal judge in Washington that said the FDA ignored the law in allowing foreign-made sodium thiopental into the country.

U.S. District Judge Richard Leon ordered the FDA to notify immediately any state correctional departments in possession of foreign-manufactured sodium thiopental that its use is prohibited by law and that the drug must be returned to the FDA.

And:

Similar letters were sent to Arizona, Arkansas, California, Georgia, South Carolina, South Dakota and Tennessee.

Eric Berger, a law professor at the University of Nebraska-Lincoln, said the problems Nebraska and other states are having with lethal injection could be foreseen.

"Nebraska's failure to follow federal law in procuring a drug for its lethal injection procedure parallels the story in many states, which have tried to implement these procedures without sufficient appreciation of their complications," he said.

"Several states with lethal injection on the books have failed to assemble an expert team to design a viable, safe procedure to execute people. Without an expert team that understands potential complications, problems are going to arise."

In yesterday's coverage, South Dakota has been ordered to turn over its foreign-sourced lethal injection drugs.  Earlier coverage of Nebraska lethal injection issues begins at the link.

Related posts are in the international and lethal injection indexes.

South Dakota AG Defiant Over FDA Order to Hand Over LI Drugs

"Death penalty delay looms," is the Sioux Falls Argus Leader report by Peter Harriman.

A federal judge’s ruling in March that the Food and Drug Administration allowed unapproved tranquilizing drugs into the country might delay an execution in South Dakota. But it is not likely to ultimately imperil the death penalty here or in 33 other states.

South Dakota Attorney General Marty Jackley acknowledged the planned September execution of Rodney Berget might be postponed as the state and federal government work their way through the ramifications of U.S. District Court Judge Richard Leon’s ruling regarding the drug sodium thiopental.

Berget was sentenced to death after he and two other inmates were convicted of killing prison guard Ron Johnson during an escape attempt last year at the South Dakota State Penitentiary.

South Dakota is among the states that administer thiopental as a tranquilizer in a series of lethal drugs that also paralyze the lungs and stop the heart. However, U.S. drug companies stopped making thiopental several years ago, leaving an Italian company as the only source for the drug.

The Italian government this year barred the thiopental made there from being used in executions, so American states that use the drug are forced to rely on their existing stockpiles. Now, though, the FDA, is being forced to go after those state stockpiles.

In a federal lawsuit brought by death penalty opponents, Leon ruled the FDA disregarded its responsibility to ensure the safety of imported drugs when it allowed Italian thiopental to be brought into this country.

In response to that, the FDA sent South Dakota a letter April 6 telling it “to make arrangements for the return to the FDA of any foreign-manufactured thiopental in its possession.”

Jackley has refused. He sent a letter back the following day saying the state’s thiopental already has cleared customs and been independently tested to ensure it was pure and adequately potent. He invited the FDA to work with the state on further testing if it has concerns about the thiopental in South Dakota’s hands.

The Mitchell Daily Republic carries the AP post, "AG Jackley: SD won't hand over execution drug to FDA."

Attorney General Marty Jackley says South Dakota will work with the U.S. Food and Drug Administration to alleviate concerns over the state's batch of a lethal injection drug but has no plans to turn over the drug.

Jackley wrote a letter to the FDA on Tuesday after the agency requested earlier this month that the state hand over its sodium thiopental stock.

Sodium thiopental is an anesthetic used to put inmates to sleep before other lethal drugs are administered.

South Dakota obtained a stock of the drug from a foreign supplier after the drug's U.S. manufacturer announced last year that it would no longer produce it.

"FDA requests lethal injection drug used in SD," by Courtney Collen for KSFY-TV.

South Dakota Attorney General Marty Jackley is fighting back against the Food and Drug Administration about the state's lethal injection drugs.

Both the FDA and the Drug Enforcement Administration say the substance used for lethal injection does not meet necessary standards. But Marty Jackley disagrees.

Now, it's the FDA that's pushing to get any foreign-manufactured Sodium Thiopental back that the state has in its possession.

Tuesday night, one of South Dakota-based organization against the death penalty is speaking out about Jackley and the FDA.

Jackley says these drugs have tested positive for safety and they are currently property of the state. So, until any court rules the state has to give them up, Jackley says they're staying in South Dakota.

South Dakotans for Alternatives to the Death Penalty spoke with KSFY. They oppose any death penalty case and when it comes to these drugs and Attorney General Jackley, they're siding with the FDA.

The FDA was notified about an issue with a foreign manufacturer that produces lethal injection drugs. Over the phone, we talked with a member of the South Dakotans For Alternatives to the Death Penalty who believes, after hearing this news, Sodium Thiopenthal is useless.

"In particular, we're pretty amazed with this case that Attorney General Jackley would refuse requests by the FDA considering a federal judge has ordered the FDA to collect all of these doses," Travis Schulze said.

"Battle Over South Dakota's Lethal Injection Drug," by Tom Hanson for KDLT-TV.

Another federal agency is after South Dakota's lethal injection drugs. Last year the Drug Enforcment Agency ordered South Dakota to hand over its supply of drugs. Now the food and drug administration has issued a similar order. But South Dakota's Attorney General has no plans to hand over the drugs.

The state and federal agencies are fighting over the state's supply of Sodium Thiopental; a quick acting barbiturate sometimes used as anesthesia and in higher doses lethal injections. South Dakota has one case of 500 pieces. It bought the drug from a manufacturer in India, after state officials realized there was a major shortage. Some say U.S. Companies stopped making the drug because of pressure from anti death penalty groups. They say since the drug was not manufactured in the U.S. it is not safe for use in executions.

Without the drug supply from India, death row murderers like Donald Moeller and Charles Rhines could possibly delay their executions. Something Jackley pointed this out in his response to the FDA.

Jackley also says the state went through proper channels to get the Sodium Thiopental and even has the FDA paperwork, signed by Prison Warden, Doug Weber, to prove it.

Earlier coverage of last month's federal court ruling is at the link.

The Memorandum Opinion in Beaty v. FDA and the District Court's Order are available in Adobe .pdf format.

A recent Center for Public Integrity report examines related issues.

Earlier coverage of South Dakota lethal injection and legislative issues is at the link.

More Beaty Ramifications From Nebraska

Today's Omaha World-Herald reports, "Ruling not expected to prevent executions," written by Paul Hammel.

Officials with the Nebraska Attorney General's Office expressed confidence Wednesday that a judge's ruling in Washington, D.C., won't preclude the state from carrying out an execution.

And:

But while death-penalty opponents hailed the ruling and said it would halt executions in Nebraska for several months, a spokesman for the Nebraska Attorney General's Office said it should have no impact here because other court rulings have stated the FDA doesn't have jurisdiction over sodium thiopental used for executions.

"The U.S. Supreme Court has already ruled Arizona can use non-FDA approved sodium thiopental for executions, and that decision still stands," said Shannon Kingery, a spokeswoman for Attorney General Jon Bruning.

Much legal wrangling remains, including on whether the FDA would appeal the ruling or carry it out.

Richard Dieter of the Death Penalty Information Center said the judge minced no words in condemning the FDA for failing to check foreign-produced sodium thiopental for its "safety or effectiveness."

Dieter said the ruling was a clear message that states that, like Nebraska, still use the anesthetic should switch to another death-penalty drug, pentobarbital, as have at least 14 other states. That drug has been used in almost all executions carried out during the past two years, he said.

Nebraska has no scheduled executions, but at least three inmates on death row are nearing the end of their legal appeals, and one might get a date with the needle before the year is over.

Earlier coverage of the Nebraska reaction to Beaty v. FDA begins at the link.

The Memorandum Opinion in Beaty v. FDA and the District Court's Order are available in Adobe .pdf format.

Related posts are in the international and lethal injection indexes.

Additional Coverage of Beaty v. FDA Ruling

"Judge Bars Imported Drugs in Executions," is the title of John Schwartz' brief item in today's New York Times.

A federal judge has prohibited the use of imported death penalty drugs and has ordered the Food and Drug Administration to collect the drugs from any states that have imported them. Judge Richard J. Leon of the Federal District Court in Washington ruled Tuesday in a case brought on behalf of death row inmates in Arizona, California and Tennessee. States that use sodium thiopental to render prisoners unconscious as part of their execution protocols reached out to foreign suppliers when the sole domestic manufacturer stopped producing the drug, which had not been approved for importation. The F.D.A. said it had no jurisdiction over execution drugs.

The Memorandum Opinion in Beaty v. FDA and the District Court's Order are available in Adobe .pdf format.

The AP filing is, "Judge blocks importation of lethal-injection drug," by Frederic J. Frommer.  It's via Contra Costa Times.

U.S. District Judge Richard Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who want to keep out sodium thiopental, because it is an unapproved drug manufactured overseas. The Obama administration argued it had discretion to allow unapproved drugs into the U.S.

But Leon said the FDA's actions were "contrary to law, arbitrary, capricious, and an abuse of discretion." He said that plain language of the law says that an article that appears to be misbranded or unapproved "shall be refused admission."

Leon scolded the agency: "Put simply, this appears to be nothing more than the FDA, once again, stubbornly clinging to every last ounce of its discretionary authority!"

Sodium thiopental is an anesthetic used to put inmates to sleep before other lethal drugs are administered. The drug's U.S. manufacturer announced last year that it would no longer produce it, which forced corrections officials to delay many executions. Many of the nation's 34 death penalty states switched to an alternative drug, pentobarbital -- a point Leon stressed.

In addition to blocking the FDA from allowing the drug into the country, Leon also ordered the FDA to immediately notify any state correctional departments with foreign-manufactured

thiopental that its use is prohibited by law, and that the drug must be returned to the FDA.

A lawyer for the death row challengers, Brad Berenson, said in an email that "it was especially gratifying that the court recognized that even the most despised members of our society are entitled to the protections Congress gave to all Americans in the Food Drug and Cosmetic Act."

Reuters posts, "US judge bars import of drug used in death penalty," by Jeremy Pelofsky via the Chicago Tribune.

A year ago, state officials in Tennessee and Kentucky turned over their supplies of the drug to the FDA amid an investigation into how it was imported. U.S. authorities seized a supply of thiopental from state of Georgia.

The FDA had sought to have the challenge dismissed, arguing that it was using its discretion by allowing the shipments into the country and also that it deferred to law enforcement with respect to the drugs used for executions.

U.S. District Judge Richard Leon sided with the inmates, criticizing the FDA for departing from its longstanding practice of not allowing unapproved drugs into the United States.

"The FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!" Leon wrote in his 23-page opinion.

"Federal judge bars import of execution drug," is Mike Ward's report for the Austin American-Statesman.

U.S. District Judge Richard Leon issued the 22-page decision in a case filed by 21 condemned convicts against the federal Food and Drug Administration, which they alleged had violated its own rules by allowing entry of the powerful anesthetic into the United States without first ensuring its efficacy.

“Prisoners on death row have an unnecessary risk that they will not be anesthetized properly prior to execution,” Leon wrote in his order, believed to be the first to address the issue of the importation of execution drugs.

Texas used sodium thiopental until about a year ago when, after its sole overseas supplier announced it was stopping production, prison officials switched to another drug: pentobarbital.

In his order, Leon said the drug had been misbranded and was unapproved by the FDA. He ordered five states — Arizona, California, Georgia, South Carolina and Tennessee — and any others with stocks of the barbiturate to surrender them to the FDA.

According to news reports, attorneys for the death row convicts had argued that use of the drug during execution could lead to so-called anesthesia awareness, in which they may experience suffocation, pain and cardiac arrest.

According to court filings, the shipments of thiopental entering the United States came from an Austrian facility owned by Sandoz International GmbH. The drug was shipped from a London wholesaler, Dream Pharma Ltd., which purchased it from a third firm, the Britian-based Archimedes Pharma Ltd., the filings state.

In court filings, FDA officials had argued that their decision to allow the drugs to enter the United States was an act of “enforcement discretion,” insisting that for them to review drugs used in lethal injections carried out by states was outside their public health role as an agency.

"Neb. must turn over lethal injection drug," is by Paul Hammel for the Omaha World-Herald.

A federal judge's ruling Tuesday in Washington, D.C., will block any executions from being carried out in Nebraska, at least for several months.

And:

Jerry Soucie, a defense attorney representing two death-row inmates in Nebraska, said the ruling should put a halt to executions in Nebraska because the state will have to surrender its supply of sodium thiopental.

“It's a very big deal,” Soucie said.

A spokeswoman for the Nebraska attorney general said the office had not yet seen the court's decision. “But the U.S. Supreme Court previously rejected similar arguments by death row inmates,” spokeswoman Shannon Kingery said.

Tuesday's ruling is expected to generate an appeal, which eventually could rise to the U.S. Supreme Court.

But the appeals could take several months to resolve, thus potentially holding up any executions in Nebraska, unless the state joins 14 other states in changing the drugs it uses for executions or obtains a legal order blocking the confiscation of the sodium thiopental.

A leading death penalty supporter, State Sen. Mike Flood of Norfolk, the speaker of the Legislature, said he didn't think Tuesday's ruling would require a change in lethal injection drugs, but it does raise “another hurdle” in carrying out an execution.

Sen. Brad Ashford of Omaha, who opposes the death penalty, said the judge's ruling moves the issue another step closer to challenges of lethal injection as unconstitutional cruel and unusual punishment.

The Lincoln Journal Star reports, "Ruling clouds Nebraska's use of lethal injection drug," by Kevin O'Hanlon.

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

Attorney Jerry Soucie of the Nebraska Commission of Public Advocacy has been arguing that Nebraska should not be allowed to use the sodium thiopental made by Naari.

Soucie, who represents death-row inmate Michael Ryan, declined immediate comment on Tuesday's ruling.

Soucie has said Harris and his company, Harris Pharma LLP, were not authorized to sell the drug, which were samples meant for use in testing. That, he contends, means Harris misappropriated the thiopental from Naari, and Nebraska prison officials are in possession of stolen property.

Nebraska is among 10 states that have purchased the drug from foreign sources. The U.S. Drug Enforcement Administration has seized supplies from several because they were imported illegally or because of questions over how they were manufactured. Nebraska twice has bought sodium thiopental made overseas. The DEA did not seize the first batch but told the state it could not use it because it was imported illegally. Nebraska then got a proper import license and bought the supply from Harris.

Judge Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who want to keep out sodium thiopental, because it is an unapproved drug manufactured overseas. The Obama administration argued the FDA had discretion to allow unapproved drugs into the United States.

But Leon said the FDA's actions were "contrary to law, arbitrary, capricious and an abuse of discretion." He said that plain language of the law says an article that appears to be misbranded or unapproved "shall be refused admission."

Earlier coverage of the ruling begins at the link, and coverage of Nebraska lethal injection issues begins at this link.

Related posts are in the international and lethal injection indexes.

Judge Blocks Shipment of 'Unapproved' Drug Used in Lethal Injections

That's the breaking news headline from Law.com's Blog of Legal Times.  The article is posted by Zoe Tillman, datelined Washington, DC.  Here's an extended excerpt:

A District of Columbia federal judge today ruled in favor of a group of death row inmates seeking a court order to stop the shipment of a "misbranded and unapproved" drug used in state legal injections.

U.S. District Judge Richard Leon found (PDF) that the Food and Drug Administration acted "arbitrarily and capriciously and abused its discretion" in approving shipments of sodium thiopental, commonly known as thiopental, which is used to induce general anesthesia during the lethal injection process.

The FDA had argued that it allowed the shipments out of deference to law enforcement officials when it came to lethal injections. Leon rejected that argument, writing that federal law clearly requires the FDA to review and approve all drugs.

“In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle,” Leon wrote. “How utterly disappointing!”

Lead counsel for the plaintiffs, Bradford Berenson of Sidley Austin in Washington, said in a phone interview today that Leon’s decision was “gratifying.”

“He saw that the agency was behaving in a clearly unlawful way and took steps to make sure that even the most despised members of society got the benefit of the protections that Congress put in place,” he said.

The FDA, through a spokeswoman, declined to comment.

The inmates, who are in jails in Arizona, California and Tennessee, sued the FDA in U.S. District Court for the District of Columbia in February 2011, accusing officials of approving shipments of thiopental without first reviewing and approving the drug in accordance with the federal Food, Drug, and Cosmetic Act.

The Memorandum Opinion in Beaty v. FDA and the District Court's Order are available in Adobe .pdf format.

Michael Kiefer posts, "Judge: FDA allowed state to illegally gain execution drug," at the Arizona Republic.

A U.S. District Court judge on Tuesday morning found that the U.S. Food and Drug Administration violated the law by allowing Arizona and other states to bypass regulations while importing unapproved drugs to carry out executions by lethal injection.

The ruling was made in a lawsuit filed in the name of Donald Beaty, an Arizona Death Row inmate who was executed last year.

The drug sodium thiopental, a short-acting anesthesia, that was used in executions. became unavailable in mid-2010 because its sole U.S. manufacturer had ceased production. That fall, The Arizona Republic first reported that Arizona corrections officials had obtained the drug from a distributor in London, although FDA officials were saying that it was not possible to import the drug; such exports also violated Bristish law and were shut down shortly afterward. In late December 2010, FDA officials told The Republic that it would exercise "enforcement discretion" on the matter.

And:

Dale Baich of the Federal Public Defender's Office in Phoenix said, "The states that have imported non-FDA approved drugs are now on notice that those drugs are illegal."

Coverage of foreign-sourced lethal injection drug imports begins at the link; related coverage from Arizona is also available.

Related posts are in the international and lethal injection indexes.

Another Twist to Nebraska Lethal Injection Drugs

"Pharmacist sues Department of Correctional Services over firing," is by Nicholas Bergin from the Lincoln Journal Star.

A former pharmacy director for the Nebraska Department of Correctional Services is suing her old employer and boss, alleging she was fired after taking medical leave, reporting security breaches by her superiors and refusing to order a lethal injection drug from a non-FDA approved source.

In the suit, Dianne Booker says her October 2011 termination and an earlier demotion violated both her civil rights and the Family Medical Leave Act.

The Nebraska Attorney General's office filed a response to the suit Wednesday, denying all of the allegations except a few basic facts, including that she worked as a pharmacist for the Corrections Department from October 2008 to October 2011.

Department spokeswoman Dawn Renee Smith confirmed Booker was acting pharmacy director for a time under the supervision of Steve Urosevich, chief operating officer for the Health and Human Services division of the Corrections Department. Smith declined to comment on the suit.

Filed early last month, the lawsuit says Booker was told in fall 2010 to obtain "by any means" a supply of sodium pentothal, a brand name for the drug sodium thiopental.

State legislators made lethal injection Nebraska's method of execution in May 2009 as a way around a 2008 Nebraska Supreme Court ruling that declared electrocution cruel and unusual punishment.

"Ex-pharmacy director sues Neb. Corrections Dept.," is the AP filing, via the Beatrice Daily Sun.

A lawsuit by a former pharmacy director for the Nebraska Department of Correctional Services says she was fired, in part, for refusing to order a lethal injection drug from a source not approved by the Food and Drug Administration.

The lawsuit is the latest dust-up over the state's attempts to secure sodium thiopental, one of three drugs used in Nebraska's lethal injection procedure.

And:

Booker's lawsuit says the Correctional Services Department ordered her to obtain "by any means" a supply of the drug in the fall of 2010. When she refused, the lawsuit says, her supervisor took over the search. Several months later, she was demoted after taking medical leave, and she was fired in October after having earlier reported security breaches by her superiors, according to her lawsuit. Booker said her firing violated both her civil rights and the Family Medical Leave Act.

The Nebraska Attorney General's office filed a response to the lawsuit on Wednesday, denying all of Booker's allegations and saying she failed to give timely notice of her absence, which it says was not protected by the Family Medical Leave Act.

Booker's lawsuit seeks unspecified damages, back pay and her job back, or reimbursement for future wages.

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

FDA Sued Over Lethal Injection Imports

Bloomberg reports, "Death Row Inmates Challenge FDA on Execution-Drug Imports."  It's by Tom Schoenberg.  It's also available via Business Week.  The lawsuit is Beaty v. Food and Drug Administration, 11-cv-00289, in the U.S. District Court, District of Columbia.

Twenty-one death row inmates asked a U.S. judge to order the Food and Drug Administration to block importation and use of a drug administered in executions, saying the anesthesia for lethal injections hasn’t been properly vetted by the agency.

Lawyers for the inmates argued today in federal court in Washington that the FDA has violated the law by allowing state departments of corrections to import sodium thiopental, a drug used as a first-stage painkiller in the process of executing an inmate with a lethal injection.

“The harm here is that unapproved, illegal drugs from an unregistered, foreign establishment are going to be administered to our clients,” Bradford Berenson of Sidley Austin LLP (1119L) in Washington told U.S. District Judge Richard Leon.

Berenson argued during a 1 1/2-hour-long hearing that the drug, which will be pumped into inmates’ veins as part of their executions, could lead to so-called anesthesia awareness. Arizona and California are two states that still have supplies of sodium thiopental and plan to use them, he said.

Gerald Kell, a lawyer for the Justice Department, urged Leon to dismiss the case, arguing the FDA’s enforcement decisions cannot be challenged in court.

“The FDA has unreviewable discretion not to bring an enforcement action,” Kell said.

And:

Leon didn’t say when he would decide the case.

“Whatever word I come up with will not be the last word,” Leon said, adding that he was a “way station on the road” to the U.S. Appeals Court in Washington.

In a lawsuit filed in February 2011, the inmates said the FDA allowed states to import “bulk amounts” of thiopental. The drug hasn’t been sold in the U.S. since 2009, when the sole U.S. manufacturer, Hospira Inc. (HSP), stopped producing it.

The inmates are seeking an injunction barring future imports of thiopental and the removal of supplies already in the possession of state governments.

The AP filing is, "Death row inmates sue to stop importation of execution drug," by Nedra Pickler.  It's via the Tennessean.

Death row inmates are suing to stop the importation of a drug used in executions.

Attorneys for the prisoners in Tennessee, Arizona and California argued before U.S. District Judge Richard Leon on Thursday that the Food and Drug Administration is breaking the law by allowing sodium thiopental to be imported since it is an unapproved drug manufactured overseas.

The Obama administration argues it has discretion to allow unapproved drugs into the U.S. and wants Leon to dismiss the case.

The drug’s U.S. manufacturer announced last year that it would no longer produce it, forcing corrections officials to delay many executions. Many of the nation’s 34 death penalty states switched to an alternative drug, pentobarbital.

There is earlier coverage of international pressure to halt drug sales for executions, foreign-sourced drugs, corner-cutting by the states, Arizona's work with the DEA to import drugs, questions surrounding the Arizona drugs, and earlier statements by the FDA. 

Related posts are in the lethal injection index.

Friday

I'll be out of the office much of Friday, attending "Barriers and Innovationas in Civil Rights Litigation Since 9/11: Practical and Theoretical Perspectives." 

The conference is co-sponsored by the William Wayne Justice Center for Public Interest Law and the American Constiution Society Austin and UT Law chapters.

News Coverage of the Hank Skinner Hearing

Following yesterday's hearing Rob Owen, counsel for Hank Skinner, ssued the following statement:

"Based on the magistrate judge's comments during the hearing today in federal district court, the focus of this controversy regarding DNA testing will now likely shift to the state courts. It will now be up to the state courts to decide if Mr. Skinner gets access to the DNA testing that we have been pursuing for more than 10 years in his case. The Texas legislature changed the law this year to eliminate disputes over assigning fault for why DNA testing was not previously performed. The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner. The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

Owen is Co-Director of the Capital Punishment Center at the University of Texas School of Law.

AP coverage of the hearing is by Betsy Blaney, "Death row inmate asks court to keep lawsuit alive."  It's via the Lubbock Avalanche-Journal.

Skinner, 49, came within an hour of lethal injection last year before the U.S. Supreme Court stepped in and now has a Nov. 9 execution date. His lawsuit claims the state violated his civil rights by withholding access to the evidence he wants tested. Monday’s hearing came after the U.S. Supreme Court ruled in March that Skinner could ask for the untested evidence, but left unresolved whether the district attorney had to surrender those items. A state court will make that decision.

Skinner’s attorneys asked U.S. Magistrate Judge Clinton E. Averitte to recommend the civil rights suit not be dismissed until the state court acts. A final ruling on the lawsuit will be issued by U.S. District Judge Mary Lou Robinson in Amarillo.

The request for DNA testing is the third from Skinner, but the first since a state law about evidence testing took effect Sept. 1. The new law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

"Skinner Lawyer: DNA Decision Likely Up to State Court," is the title of Brandi Grissom's Texas Tribune post.

For years, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. After a subsequent hearing, the high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law in restricting the DNA testing Skinner requested.

That was the question before the federal court in Amarillo today. State lawyers argued that Skinner had his chance at trial to have all the DNA testing done, but he forfeited that opportunity and is now trying to game the legal system to stall his demise. "If Skinner is allowed to test this DNA evidence, then every guilty criminal defendant will want to forgo DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence," state lawyers wrote in a brief to the court.

But the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.

Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.

Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.

"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

The Amarillo Globe-News report is, "Wrangling continues in Skinner DNA case," by Bobby Cervantes.

The federal case Monday stemmed from a U.S. Supreme Court ruling in March that allowed Skinner to use a federal civil lawsuit to advance his motion for DNA testing. The suit states that 31st District Attorney Lynn Switzer violated Skinner’s civil rights by not turning over crime scene evidence he long has said would exonerate him and possibly implicate Busby’s late uncle as the real killer.

Skinner has identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.

Monday’s hearing centered largely around how two appeals cases might affect Skinner’s latest motion, filed Sept. 6 and still pending in 31st District Judge Steven Emmert’s court.

Earlier coverage of Hank Skinner's case and his struggle for DNA testing begins at the link.

Federal Court Hearing Today on Hank Skinner DNA Request

"Texas death row inmate asking courts to force prosecutor to turn over evidence for DNA tests," is this morning's AP post via the Washington Post.

Just weeks away from execution, a Texas death row inmate is asking the courts to force prosecutors to turn over knives and clothing that were never tested for DNA, claiming that the evidence could show he didn’t kill his girlfriend and her sons nearly two decades ago.

But prosecutors say the latest request from Henry Watkins Skinner, who came within an hour of lethal injection last year before the U.S. Supreme Court stepped in, is an empty tactic to again delay his death.

Both sides will argue their case Monday in Amarillo before federal Magistrate Judge Clinton Averitte. The hearing comes after the U.S. Supreme Court ruled that Skinner could ask for the untested evidence, but left unresolved whether those items had to be surrendered by Gray County District Attorney Lynn Switzer.

The ruling came in a federal lawsuit that Skinner filed against Switzer, claiming the state violated his civil rights by withholding access to the evidence. Prosecutors want the lawsuit tossed, while defense attorneys are asking Averitte to delay ruling on the federal suit until the DNA testing issue is decided at the state-court level.

Skinner, 49, is scheduled for execution Nov. 9.

And:

Skinner’s lawyers have already asked the state courts to delay the execution and want Averitte to withhold any decision on the federal lawsuit until a request for DNA testing before Skinner’s trial court — the third such request from Skinner — is resolved there. Defense attorneys also argue that a new state law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

Ariane de Vogue posts, "Texas Death Row Inmate Wants Access to Untested DNA," at ABC News.

A Texas death row inmate who was hours from execution in 2010, now finds himself with two new avenues of appeal to attempt to prove his innocence through DNA testing.

For years since his murder conviction, Henry “Hank” Skinner had unsuccessfully sought access to untested DNA evidence found at the scene of the crime.

Last year, hours before his scheduled execution, a final appeal to the Supreme Court went in Skinner’s favor. The justices halted the execution and eventually ruled that he could go back to court and argue his case.

The ruling from the Supreme Court, coupled with a new DNA law passed in Texas last month, have given Skinner new hope that he might one day be found innocent of the death of his girlfriend and her two sons.

And:

While the Supreme Court did not weigh in on his guilt or innocence it said he could go to federal court and attempt to sue state officials under federal civil rights law.

At the same time, Skinner’s lawyers are pursuing a separate appeal in state court. Just last month Texas revised its DNA law to ensure that procedural barriers do not prevent prisoners from testing biological evidence that hadn’t been tested. Skinner’s lawyers have filed papers asking the court, pursuant to the new law, to compel the DNA testing.

“We are proceeding both in federal court and state court,” says Skinner’s lawyer, Rob Owen, “to leave no stone unturned.” Complicating Skinner’s appeal is that the trial judge set a new date for his execution in early November.

But the State of Texas believes that Skinner is abusing the system.

In court papers, Jonathan F. Mitchell, the Solicitor General of Texas, argues that at the time of his trial Skinner’s original attorneys made an “informed, tactical” decision to forego the testing because they feared it would further implicate their client.

The Amarillo Globe-News reports, "Skinner looks to federal court for hope," by Bobby Cervantes.

On Monday, the latest chapter in Skinner’s case begins at a federal courthouse in Amarillo, where U.S. Magistrate Judge Clinton E. Averitte will hear Skinner’s civil rights lawsuit. Another execution date looms, this one set for Nov. 9.

The new proceedings are the product of a last-minute stay of execution the United States Supreme Court granted in March — Skinner’s second since he has been on death row.

At issue was whether a federal civil rights lawsuit is a proper vehicle for a convicted prisoner to petition for access to DNA testing. A 6-3 majority on the court thought so, and Skinner’s attorneys swiftly filed the federal lawsuit that will be heard Monday.

Skinner contends additional DNA testing would exonerate him and implicate Busby’s late uncle.

In addition to the Supreme Court ruling, Skinner scored another victory in June, when lawmakers stripped Texas’ post-conviction statute of a once-powerful tool prosecutors and judges wielded to deny prisoners’ DNA petitions.

Previously, those who challenged their convictions citing untested DNA evidence had to prove, among other things, that the evidence was not tested at trial through no fault of their own.

"Federal judge to hear Texas death row inmate's civil rights case," is the AHN report written by Kris Alingod.

A federal judge on Monday was set to hear the case of a Texas death row inmate, Hank Skinner, who filed a civil rights lawsuit claiming prosecutors repeatedly denied him additional DNA testing.
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The hearing in Amarillo comes two months after a motion from Skinner that evidence should be turned over to the defense under a bill passed by the state legislature in May expanding access to post-conviction DNA testing.

The U.S. Supreme Court early this year ruled 6-3 in favor of Skinner, saying he could seek such tests under the federal civil rights statute. It issued a temporary stay last year while it considered the lawsuit, saving Skinner from the lethal injection by only 45 minutes.

No DNA tests have been conducted following the ruling and Texas has set a new execution date of Nov. 9.

The case has attracted widespread attention, with advocacy groups,  pundits and some state lawmakers saying that while testing could show Skinner to be guilty, it could also prevent the execution of an innocent man.

Texas has the highest number of executions nationwide. In 2004, it executed Cameron Todd Willingham, who was later found to have been prosecuted using “flawed science" in an investigation by the Texas Forensic Science Commission.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.

News Coverage of the Alabama Lawsuit

"Suit claims blacks wrongly excluded from jury service for years in Houston and Henry counties," is at the Montgomery News site.

Five blacks who were wrongly excluded from serving on juries have filed a lawsuit challenging that prosecutors in Houston and Henry counties have for years excluded blacks based on race.

A group called the Equal Justice Initiative filed the claim contending District Attorney Douglas Valeska has illegally excluded qualified blacks from serving on juries in serious felony cases, especially capital cases, for decades.

The plaintiffs are five African Americans who state court rulings previously found were illegally excluded from jury service, according to a statement released by EJI. The lawsuit seeks, among other things, ongoing monitoring of jury selection in Houston and Henry counties by a federal court.

Filed in U.S. District Court in Montgomery, the suit alleges violations of the U.S. Constitution and federal anti-discrimination laws.

Earlier coverage of the Alabama civil rights lawsuit begins at the link.  The pleading in Hall, et al v. Valeska is available in Adobe .pdf format.  Related posts are in the jury and race indexes.

Alabama Lawsuit Filed Over Jury Selection

Equal Justice Initiative has filed a civil rights lawsuit in Alabama and issued a news release, "African Americans Illegally Barred From Serving on Juries Sue Alabama Prosecutor Over Racial Discrimination.  Civil Rights Lawsuit Challenging District Attorney's Decades-Long Exclusion of African Americans from Jury Service Is First of its Kind."  Here's the text of the news release:

Today, the Equal Justice Initiative (EJI) filed a civil rights lawsuit contending that District Attorney Douglas Valeska has illegally excluded qualified African Americans from serving on Houston and Henry County, Alabama, juries in serious felony cases, especially capital cases, for decades. The lawsuit, filed on behalf of African Americans who were barred from serving on juries after being summoned to court, was filed in the federal district court in Montgomery, Alabama, and alleges violations of the U.S. Constitution and federal anti-discrimination laws. Lawyers believe today's class action is the first-ever civil suit directed at a prosecutor's racially discriminatory use of peremptory strikes and filed by actual victims of discrimination.

The plaintiffs are five African Americans who state courts previously found were illegally excluded from jury service because they are black. The lawsuit seeks declaratory and injunctive relief, including ongoing federal court monitoring of jury selection in Houston and Henry Counties.

The complaint alleges that, from 2006 to 2010, state prosecutors in Dothan used peremptory strikes to exclude 82% of qualified black jurors in death-penalty cases. As a result, the jury in every death-penalty case in Houston County over this period has been all white or had only a single black juror despite the fact that the circuit is nearly 25% African American. Houston County has the highest per capita death sentencing rate in Alabama.

"Removing people from a jury on the basis of race is shameful and inexcusable," said Plaintiff Vicky Allen Brown. In 1998, an Alabama appellate court concluded that Valeska's office illegally struck Brown from jury service in a capital trial because of her race. An accountant who was born and raised in Houston County, Brown joined the lawsuit to expose and challenge Valeska's illegal jury selection practices because "many times you cannot do anything about discrimination – especially when it is committed by public officials who know how to disguise and justify their behavior."

Alabama appellate courts have reversed several cases after finding that Valeska's office excluded black prospective jurors in order to ensure that African Americans would not be on juries and that Valeska and his assistants were unfairly suspicious of black potential jurors.

"Mr. Valeska has repeatedly been found to have illegally excluded black people from jury service with peremptory strikes in capital cases but he continues the practice because most people don't know about it," said Bryan Stevenson, lead attorney for the plaintiffs. "The underrepresentation and exclusion of people of color from juries has seriously damaged the credibility and reliability of the criminal justice system. Individual case reversals haven't stopped this illegal practice, so there must be greater accountability."

The complaint also alleges that Valeska's racially discriminatory use of peremptory challenges violates the federal Civil Rights Act of 1875, which provides criminal penalties for officials who exclude any qualified citizen from jury service on account of race, color, or previous condition of servitude. The Department of Justice has not enforced this anti-discrimination law since its passage more than 135 years ago.

"Reports and advocacy are important for exposing racial discrimination," said Houston County civil rights leader Pastor Kenneth Glasgow. "But we need a lawsuit like this one to give anti-discrimination laws some teeth."

The plaintiffs are among hundreds of people of color called for jury service throughout the South who have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal, as documented in EJI's recent study, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy. African Americans have been barred from juries because they wore eyeglasses; were single, married, or separated; were too old for jury service at age 43 or too young at 28; and for countless other reasons that courts have rubber-stamped as "race-neutral." Many of these assertions are false, humiliating, demeaning, and injurious.

Attorneys contend that Valeska's illegal removal of qualified African Americans subjected the plaintiffs and all excluded African Americans to profound personal humiliation and harms the entire community by undermining public confidence in the fairness of the justice system.

Plaintiffs are also represented by attorneys with the law firm of Drinker Biddle & Reath LLP, in Philadelphia, Pennsylvania.

The civil rights lawsuit, Hall, et al v. Valeska, is available in Adobe .pdf format.  Related posts are in the jury and race indexes.

North Carolina Ruling on Lethal Injection Protocol

The North Carolina Supreme Court ruling in Conner, et al v. NC Council of State is available in Adobe .pdf format.

"N.C. high court rules with state on death penalty," is the initial AP filing, written by Tom Breen.  It's via the Greensboro News-Record.

The North Carolina Supreme Court has ruled that state officials acted properly when approving new capital punishment guidelines four years ago.

In a ruling published today, the court found that the Council of State did nothing wrong in 2007 when it signed off on a new protocol for lethal injection developed by the Department of Correction.

Lawyers for five death row inmates had argued the council, which consists of statewide elected officeholders, violated a law regulating the way state agencies approve policies.

David Weiss of the Center for Death Penalty Litigation says the court's ruling is unlikely to mean that executions will immediately resume in North Carolina. Weiss says other court challenges to capital punishment are pending.

Ann Blythe posts, "State court: Death penalty policies don't need public meetings," at the Raleigh News & Observer.

The State Supreme Court issued a ruling today that essentially gives the Council of State, the 10 statewide elected officials, authority to continue setting execution protocol for death row inmates without publicly meeting.

The decision has little impact on the de facto moratorium on executions that has been in place since 2007, when a group of inmates challenged execution methods at the time as cruel and unusual punishment.

The case decided this week by the state's highest court focused on a procedural point — whether Administrative Law Judge Fred Morrision had jurisdiction to order the Council of State to revise its execution protocol as he tried to do more than four years ago.

Lawyers for death row inmates argued that the council failed to follow state statutes when members signed off on new execution procedures in February 2007. The state Department of Corrections announced new procedures two weeks prior to that Council of State meeting, but a judge almost immediately put a halt on several executions, citing a century-old law that requires the governor, lieutenant governor and other top department heads to consider any new death penalty protocols.

"Death penalty ruling," is the title of Mark Binker's Capital Beat post at the Greensboro News-Record.

One of the odder impediments that has been part of North Carolina's logjam over the death penalty has apparently been removed by the state's Supreme Court today.

Back in 2007, death penalty opponents pointed out that state law requires that the Council of State approve North Carolina's death penalty protocol. The council of state is a 10-member panel chaired by the governor and made up of statewide elected officers such as the Insurance Commissioner and Commissioner of Agriculture. Generally, the council deals with bond issuance, land purchases and other fiscal matters.

And:

After the Council of State approved the protocol, death penalty advocates sued, saying that the council did not use proper procedure when reviewing the case. In particular, they argued the council of state should have allowed public comment, as prescribed under the APA, administrative procedures act.

The court rejected that notion in a ruling released today. Justice Barbara Jackson wrote for the majority:

Accordingly, we hold that the process by which the Council approves or disapproves the DOC's lethal injection protocol is not subject to the APA, and petitioners cannot challenge it by going through the Office of Administrative Hearings through the APA. Instead, any issue petitioners have with the protocol rests with the General Court of Justice or the federal courts.

This does not end the legal stalemate over executions in this state.

Earlier coverage of lethal injection issues in North Carolina begins at the link.  The state's last execution was in 2006.  Also in play in North Carolina death penalty cases is the state's Racial Justice Act.

News Coverage of the Hank Skinner Filing

The Texas Tribune reports, "Hank Skinner Seeks DNA Testing Under New Law," written by Brandi Grissom.

Lawyers for death row inmate Hank Skinner filed a motion Friday seeking DNA testing under a new Texas law that expands access to such testing. And they have asked the state to withdraw the Nov. 9 execution date set for Skinner.

“Texas is wrong to seek Hank Skinner’s execution without allowing for DNA testing," Rob Owen, one of Skinner's lawyers and director of the University of Texas School of Law's Capital Punishment Clinic, said in a statement. "The state should be leading the search for truth, instead of continuing to waste taxpayer dollars on its 11-year-long campaign to block testing of critically important scientific evidence.”

And:

Last year, though, less than an hour before he was scheduled to be executed, the U.S. Supreme Court stayed Skinner's punishment. The high court sent the case back to the federal district court to decide whether Skinner is entitled to additional DNA testing. A decision is expected in the coming months on whether Texas courts arbitrarily and unconstitutionally applied the state's 2001 post-conviction DNA testing law.

During the legislative session this year, though, lawmakers approved a modification to that law, allowing more access to post-conviction DNA testing. The original legislation allowed testing only in cases in which DNA tests were not conducted during the original trial because the technology was unavailable or for some other reason that was not the fault of the defendant. This year, lawmakers repealed those restrictions. As of Sept. 1, post-conviction testing is available for DNA evidence not previously analyzed, and for DNA evidence that was tested but that can be re-examined with newer technology. “The new law was intended to make advanced DNA testing available in all cases where it can aid the truth-seeking process, and Skinner's case falls squarely within that category,” said state Sen. Rodney Ellis, D-Houston, who helped write the law.

"Skinner seeks DNA tests," by Bobby Cervantes in the Amarillo Globe-News.

Attorneys for convicted killer Hank Skinner hope a new DNA testing law that took effect last week will force the 31st District Attorney to turn over crime scene evidence, according to a new motion filed Tuesday in Gray County.

The petition cites major revisions to the state’s post-conviction DNA statute, which allows more prisoners to test biological evidence in criminal trials.

The untested evidence includes a man’s windbreaker with blood splatter and hair found next to Twila Busby’s body, two knives, a rape kit and bloody towels.

A Gray County jury convicted the Pampa man for the December 1993 triple slaying of Busby, his live-in girlfriend, and her two sons.

Skinner has maintained his innocence since his 1995 conviction, arguing he was incapacitated by a vodka and codeine overdose on the night of the murders.

"DNA tests sought," by Amanda Buck for the Martinsville Bulletin.

Three motions were filed Tuesday in state district court in Gray County, Texas, the release said. They seek to have the items tested under a new Texas law that took effect Sept. 1, according to the release and copies of the motions provided by Skinner’s attorneys.

The new law “intends to ensure that procedural barriers do not prevent prisoners from testing biological evidence that was not previously tested or could be subjected to newer testing,” the release said.

Another motion seeks to have the Nov. 9 execution date withdrawn to allow time for the DNA testing to be done.

That is not the first execution date for Skinner, who came within an hour of being put to death in March 2010 when the U.S. Supreme Court halted the sentence before deciding to hear his case.

The high court ruled this year that Skinner had the right to sue the Texas district attorney prosecuting his case under federal civil rights law for refusing to allow Skinner access to evidence for DNA testing. Justice Ruth Bader Ginsburg cautioned that allowing Skinner to sue is not the same thing as saying he should win his suit.

That lawsuit is pending in federal district court in Amarillo, Texas.

Earlier coverage of Hank Skinner's case - with the latest pleadings - begins at the link.

An Update on the Hank Skinner Case

Attorneys for Hank Skinner have issued a news release this morning:

Hank Skinner Files Motion for DNA Testing Under New Law, Asks Court to Withdraw Nov. 9 Execution Date

(Gray County, Texas)  Attorneys for Hank Skinner filed a motion today in state district court in Gray County, Texas, to compel DNA testing of key pieces of evidence that have never been tested in his case.  The motion is filed under a new law, SB 122, which took effect on September 1, 2011. SB 122 intends to ensure that procedural barriers do not prevent prisoners from testing biological evidence that was not previously tested or could be subjected to newer testing. Mr. Skinner’s attorneys also asked the court to withdraw Mr. Skinner’s scheduled November 9 execution date to allow time for the DNA testing (the motions, which were mailed to the court on Friday, are attached).

“The new law was intended to make advanced DNA testing available in all cases where it can aid the truth-seeking process, and Skinner's case falls squarely within that category,” said Sen. Rodney Ellis, co-sponsor of SB 122 which passed the Texas Legislature with overwhelming bipartisan support in May 2011.

The State of Texas, which for more than a decade has actively resisted Mr. Skinner’s efforts to obtain DNA testing of the evidence in his case, came within an hour of putting him to death in March 2010 before the U.S. Supreme Court stepped in to stop the execution.  The Court eventually agreed to hear Mr. Skinner’s case, and in March 2011 ruled that Mr. Skinner was entitled to seek access to the evidence for DNA testing by suing the Gray County District Attorney under a federal civil rights law.  The case returned to the federal district court in Amarillo, Texas, where a decision is pending.

“Texas is wrong to seek Hank Skinner’s execution without allowing for DNA testing.  The State should be leading the search for truth, instead of continuing to waste taxpayer dollars on its eleven-year-long campaign to block testing of critically important scientific evidence,” said Rob Owen, an attorney for Mr. Skinner.

The evidence that Mr. Skinner seeks to test, and which has never been tested, includes: a man’s windbreaker found next to the victim’s body, which had blood splatter, perspiration stains and human hairs on it, and did not belong to Mr. Skinner; two knives, at least one of which was a likely murder weapon; swabs from a rape-kit; and clothing and towels found at the crime scene.  The State’s refusal to test the evidence for DNA is particularly troubling because there is another suspect who stalked the victim, had a violent criminal history, and behaved suspiciously immediately after the crime.

There is a powerful public consensus that DNA evidence should be tested when it is available.  More than 8 in 10 Americans believe DNA evidence is either completely or very reliable.  In Texas, 85 percent of the people believe that prisoners should have access to DNA testing if it may prove their innocence.

“Testing the evidence will serve the public interest by providing certainty in this case,” said Nina Morrison, staff attorney at the Innocence Project. “It’s just common sense to test the DNA evidence.”

The Third Motion for DNA Testing, Motion to Order the State to Comply, and Motion to Withdraw or Modify Execution Date are available in Adobe .pdf format.

Earlier coverage of Hank Skinner's struggle for DNA testing begins at the link.

More on the Hank Skinner Case

Brandi Grissom writes, "Texas Again Sets Skinner Execution Date," for the Texas Tribune, today.

For the fourth time, the state of Texas is scheduled to execute death row inmate Hank Skinner for the 1993 murders of his live-in girlfriend and her two sons, potentially quashing his ability to request DNA testing under a new state law.

Gray County District Attorney Lynn Switzer asked a state district judge last month to grant an order setting an execution for Nov. 9, even as Skinner awaits a federal court ruling on whether prosecutors must turn over DNA evidence for testing that he says will prove his innocence. Skinner’s lawyers call the move a pressure tactic that makes it tougher for the court to adequately weigh the matter.

“No one's interests will be served by rushing to a decision under the pressure of a looming execution,” Rob Owen, one of Skinner’s lawyers and director of the University of Texas School of Law's Capital Punishment Clinic, said in a statement.

The execution date also means that Skinner’s lawyers must hurry to try to take advantage of a new state law that allows increased access to post-conviction DNA testing. In 2001, legislators passed a law allowing those who had already been convicted to ask for DNA testing. The original legislation allowed testing only in cases in which DNA tests were not conducted during the original trial because the technology was unavailable or for some other reason that was not the fault of the defendant. This year, lawmakers repealed those restrictions. Beginning Sept. 1, post-conviction testing will be available for DNA evidence not previously analyzed, and for DNA evidence that was tested but that can be re-examined with updated technology.

And:

“It would be logical and sensible for the state to hold off setting another execution date until Skinner’s legal claims can all be heard in a reasonable fashion,” said Doug Robinson, one of Skinner’s lawyers. “It makes everything just so much more difficult, certainly for Skinner’s lawyers, and I would imagine for the federal courts."

Meanwhile, Robinson said, it also means that Skinner’s lawyers must quickly decide whether to file another request in state court for DNA testing based on the new post-conviction DNA testing law that takes effect next month. If lawyers file the request on Sept. 1, the day the law takes effect, it will give the courts only two months to issue a ruling before the execution date, practically lightning speed in death row litigation terms. “The two previous motions we filed took two to three years for the state courts to rule on,” Robinson said.

Which makes it very likely, Robinson said, that Skinner and his lawyers will be asking the courts to grant another stay of execution.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.  More on Skinner v. Switzer, via Oyez.

An Update of Exonerees' Fee Dispute

The Dallas Observer reports, "Kevin Glasheen Fought to See Innocent Prisoners Compensated, Then Fought To Take Millions For Himself."  It's written by Brantley Hargrove, and it's a lengthy examination of the issues in this case.

Steven Phillips was about to boil over. This, the attorneys in the room must have known, wasn't good for anyone.

At 51, Phillips had a delicate drawl, but the rest of him was all rangy wildcat sinew. He was a bit of a genetic oddity. He didn't lift weights, yet his neck was thick, tapered upward from a large pair of muscles that sat like small hillocks on his shoulders. He was a native Texan, born in Abilene, but he'd grown up in the Arkansas Ozarks and had, until just recently, handled himself just fine for 25 years in a couple of Texas prisons, including the Coffield Unit, populated by violent felons.

Now, here he was, in January 2010, in a Dallas skyscraper getting prodded about his marginal history as a sex addict and a peeping Tom. Phillips wasn't denying any of that. He knew he'd come a long way since his parole got revoked in '97, when he scaled a woman's balcony and peered through her window. But those turbulent nights lay in the distant past. He worked at keeping it that way every single day, adhering to a rigid 12-step program. "Every man is responsible for working out his own salvation," Phillips liked to say.

As far as he was concerned, this lawyer was just flinging mud. He thought he was there to get grilled about a lawsuit he'd filed against a guy named Jeff Blackburn, a famed Amarillo defense attorney known for his work with the Innocence Project of Texas, and against Kevin Glasheen, a top-gun personal-injury lawyer from Lubbock, who was in the room at this very moment, monitoring the deposition. What did any of this have to do with his case?

Phillips' suit was over the $1 million and change he'd been charged by Glasheen. Their partnership, he says, began as a plan to file a lawsuit against the city of Dallas, whose police force decades before had made the arrest that sent Phillips away. The lawsuit never got filed, but in the spring of 2009, not long after Phillips hired Glasheen, Texas lawmakers passed a bill more than tripling the amount of money the state pays the wrongfully convicted. The law had been championed by Glasheen and Blackburn. According to Glasheen, that championing was part of their work as Phillips' lawyers. But after the law passed, Phillips fired Glasheen and filed the compensation papers with the state himself. Now he wanted a judge to void that contract and block Glasheen from collecting 25 percent on the $4 million coming Phillips' way.

And:

The Innocence Project of Texas defends Blackburn's right to make a living. But others inside the organization see it differently. John Stickels, a UT-Arlington professor who served on the organization's board, left the organization over the fee arrangements. Michelle Moore, a Dallas public defender who works innocent-prisoner cases, split with the Innocence Project of Texas for similar reasons.

Phillips' lawsuit is scheduled for a jury trial in November, but it's not just exonerees who are pursuing legal action against Glasheen. In January, the State Bar of Texas, the member organization for the state's attorneys, sued Glasheen in a Lubbock court, citing professional misconduct. They accused him of drawing up a contract that claimed an interest in an "administrative action" — filing a one-page compensation form — and for lobbying for a contingency fee. They also dinged him for taking cut of an annuity that hadn't been paid.

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

Another Execution Date For Hank Skinner

"Death date is set," is the report in the Martinsville Bulletin.  It's written by Amanda Buck.

A new execution date has been set for a former Henry County man who is on death row in Texas.

Henry Watkins “Hank” Skinner, 49, was sentenced to the death penalty in 1995 for the murder of his girlfriend and her two adult sons in their home in Pampa, Texas. According to the website of the Texas Department of Criminal Justice, Skinner is set to be executed Nov. 9 for those crimes.

This is not the first execution date for Skinner, who attended Fieldale-Collinsville High School. He was less than an hour away from execution in March 2010 when the U.S. Supreme Court halted the sentence and agreed to hear a matter in Skinner’s case.

In March of this year, the justices ruled that Skinner had the right to sue a Texas district attorney under a federal civil rights law for refusing to allow him access to evidence for DNA testing.

And:

According to one of Skinner’s attorneys, Washington, D.C.-based Douglas Robinson, the civil case still is pending in federal court in the Northern District of Texas Amarillo Division. Robinson said Switzer has asked the court to dismiss the case on different grounds, but the court has not yet ruled on that request.

Robinson said he believes the new execution date is “an effort to put pressure on the federal court to act quickly.”

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

 

The Filing Fees Project

A group of attorneys has recencly started The Filing Fee Project. 

We’re trying to put together a comprehensive directory of filing fees for every court in America.  This project was born out of the frustration that is experienced when filing something in a foreign jurisdiction.  Some courts make their filing fees really easy to find, but others can be very difficult.  We conjectured that, by gathering all of the filing fees into one location, we could make things much more convenient for solo practitioners, paralegals, and pro se litigants.

Lawyers have adapted well to the Internet, establishing resources for other attorneys and lay people trying to get basic information.

More Commentary on John Thompson's Case

The Gazette-Mail of Charleston, WV carries the editorial, "Injustice: Railroaded victim."

Sometimes, America's criminal justice system -- police, prosecutors, courts, prisons -- doesn't see accused suspects as human beings, but just as scumbags to be locked away as quickly as possible. This attitude can cause cruel outcomes. In extreme cases, police and prosecutors actually frame the innocent.

In 1963, the U.S. Supreme Court decreed that when prosecutors have evidence tending to prove the innocence of a suspect, they're honor-bound to inform the defense. But sometimes they violate this mandate and hide evidence. An ugly case recently produced a disturbing outcome in the Supreme Court. Here's the saga:

Down in Louisiana in 1985, John Thompson was convicted of murder and sentenced to death. He spent 18 years in prison. Execution dates were set for him seven times.

Eventually, it was learned that Thompson was innocent. First, one of his prosecutors, on his deathbed, told a fellow prosecutor he had hidden a blood sample and test results showing that the murderer's blood type didn't match Thompson's. The fellow prosecutor concealed this confession for five more years.

Other hidden evidence: An eyewitness identification of the killer didn't match Thompson's appearance, but the defense wasn't told. An informant who fingered Thompson did so to get a reward from the victim's family, but again the defense wasn't told.

Altogether, five assistant prosecutors knew about this concealment. Their elected chief prosecutor was politician-lawyer Harry Connick Sr., father of the famed singer-actor-composer. The prosecutor's office had a record of hiding such exculpatory evidence, and Connick once was indicted by federal agents for the practice.

Syndicated columnist Jim Brown's, "Supreme Court’s betrayal of justice," is via Houma Today of Louisiana.

There is an aura of myth that surrounds Lady Justice, who is pictured standing tall with the balanced scales of justice in her hands. She is blindfolded to assure impartiality and fairness. But if she read the decision about the death row inmate from New Orleans that was handled down by the U.S. Supreme Court last week, one could only wonder whether she dropped her scales, pulled off her blindfold, and wept.

And:

With full justification, Thompson sued the prosecutor’s office in New Orleans for ripping away and stealing 18 years of his life. He had two sons that he never saw grow up. A New Orleans jury awarded him 14 million dollars. Some said it was too much money. Would you give up 18 years of your life in solitary confinement on death row for 14 million dollars? On appeal, the Fifth US Circuit Court of Appeals, reputedly the most pro prosecutorial circuit in the nation, upheld the award in favor of Thompson.

But a bitterly divided Supreme Court said to Thompson “no way.” In a 5-4 decision, his case was tossed out by the Supreme Court– not because they disagree that the prosecutor’s office hid evidence (in fact all 9 justices agree on that point). Instead they tossed the case because, in their divine judicial opinion, they didn’t see any “pattern” of the prosecutor’s office doing this to other people besides Thompson (because one life ruined is apparently not enough). Sounds like a John Grisham novel with a bad ending, right? If only that were so. Unfortunately, this is real life and John Thompson gets nothing for his 18 years in jail. Not a red cent. Tough luck fella. The system failed you, but “stuff happens.”

Hartford Courant columnist Colin McEnroe posts, "Death Penalty Tale," at the Connecticut paper's website.

John Thompson's essay should be mandatory reading, no matter what your position is on the death penalty.

To me it is:

a. an answer to the people who say there are too many appeals, that the the death penalty takes too long and costs too much. So Thompson should have been dead after three appeals?

b. a reminder that cases are not always as ironclad as the Petit murders. Energized by that story and the often fetishistic press coverage of it, pro-death-penalty sentiment seems to be rising here in Connecticut. People who support the death penalty because of their revulsion at the crimes of Hayes and Komisarjevsky should understand that it may not always be applied in such clear-cut circumstances.

Thompson's New York Times OpEd is noted in the preceding post.

The Prosecution Rests, but I Can’t

That's the title of John Thompson's OpEd in the Sunday New York Times.  Thompson was exonerated in Louisiana after spending 18 years behind bars; prosecutorial misconduct was at the center of his case.  Last month, the Supreme Court overturned a jury award stemming from Thompson's civil lawsuit against the New Orleans District Attorney's Office.

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Because of that, prosecutors are free to do the same thing to someone else today.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.

My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.

After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.

And:

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

Additional Skinner Commentary

"DNA testing in capital cases should be routine; Texas should end the fight to stop tests of crime scene evidence," is the San Antonio Express-News editorial.  It appeared in the Sunday edition.

Before the state carries out the ultimate sanction for capital crimes, every effort should be made to ensure that all the evidence in a death penalty case has been examined. Any reasonable prospect of exoneration must be considered. To execute an innocent individual would be, after all, a crime in itself.

All this seems like it should be self-evident in a modern system of justice. But the state of Texas has perplexingly fought to prevent a Texas death row inmate from obtaining DNA evidence that, one way or another, would likely settle his case.

Last month, the U.S. Supreme Court ruled that the inmate — Henry “Hank” Skinner — could sue a prosecutor under federal civil rights law to have crime scene evidence from the 1993 murders of his girlfriend and her two adult sons tested for DNA.

The high court ruling didn't offer an opinion about whether Skinner should prevail in his suit. But rather than continue to litigate a case that undermines confidence in the justice system, the state should simply get on with the tests.

The largely circumstantial case against Skinner has many holes in it and has drawn national criticism. The state's star witness recanted her story, claiming prosecutors intimidated her.

And:

Over the past decade, advances in DNA testing have exonerated 43 individuals in Texas of serious crimes, including murder. Prosecutors sometimes get overzealous. Judges and juries sometimes make mistakes.

Justice isn't served by putting innocent people behind bars ... or on death row. Testing for DNA evidence should be routine in death penalty cases. It is unconscionable that the state would fight Skinner or anyone else to prevent such testing.

Earlier coverage of Hank Skinner's case begins at the link.  The Supreme Court opinion in Skinner v. Switzer is in Adobe .pdf format.

Star-Telegram on the Skinner Case

"Justice is about getting it right," is the editorial in today's Fort Worth Star-Telegram.

Maybe now there can be more certainty about who killed Twila Busby and her sons, Elwin Caler and Randy Busby, in their Pampa home on New Year's Eve 1993.

After years of being rebuffed in the courts, Henry W. "Hank" Skinner recently won a U.S. Supreme Court ruling that will allow him to try to get crime-scene evidence put through DNA testing.

If that testing yields conclusive results, it could shine light on whether Skinner was wrongly convicted, as he argues, or whether blood, hair and fingernail scrapings point to him as the killer.

And:

Skinner's case has drawn national attention for several reasons.

It tests the scope of the 2001 Texas law giving inmates limited access to DNA testing after they've been convicted.

And his appeals gained traction after students of Northwestern University's Medill School of Journalism investigated his innocence claims and discovered, among other things, that a witness recanted her story, saying she'd been pressured by the prosecution. Skinner has said Busby's uncle was a likelier suspect, but he has since died.

Though courts have upheld Skinner's conviction and he was denied a clemency bid, the fact that not all available evidence was DNA tested raises doubts that analysis now could set to rest.

The justice system ultimately is about finding out the truth, to the extent that's possible, so perpetrators can be punished and victims can find closure. Finality shouldn't be just about getting it over -- but about getting it right.

Earlier coverage of Hank Skinner's case begins at the link.  The Supreme Court opinion in Skinner v. Switzer is in Adobe .pdf format.

Editorial: Court Rules Rightly on Skinner

That's the title of an editorial from the Amarillo Globe-News Saturday edition.

Hank Skinner won a big court fight this week in Washington, D.C.

So did those who believe Skinner should be executed for killing a Pampa woman and her two sons on New Year's Eve, 1993.

Indeed, the U.S. Supreme Court's 6-3 ruling in Skinner's favor very well could prove beyond a doubt that he is guilty of the crime for which he's been convicted.

And that, by definition, would be justice served.

And:

So, let's proceed with this civil rights lawsuit in federal court and let us determine once and for all who committed this heinous crime.

The News & Observer of Raleigh, North Carolina carries the editorial column, "DNA stories, waiting to be told."  It's written by Steve Ford, the editorial page editor.

DNA has figured in several high-profile cases where people who have spent years in prison - convicted by juries supposedly beyond a reasonable doubt - finally were cleared.

In that respect, DNA testing shapes up both as a prosecutor's best friend and worst enemy. If suitable evidence is available, it can point a damning finger at someone who has committed a violent crime. But if it surfaces on down the road, it can expose a prosecution as having been terribly flawed. The nightmare would be proof of someone's innocence, and someone else's guilt, coming to light after a person wrongfully convicted had been executed.

A thorough DNA testing regimen presumably would help prevent wrongful convictions in the first place. Yet as the Skinner case shows, there can be an ingrained reluctance by prosecutors to have all evidence tested. And the fact is that Skinner's own lawyers at trial were leery of what some of that evidence might have shown.

To test or not to test became more a matter of courtroom strategy than an unblinking search for the truth (not that a defendant should be expected to cooperate in incriminating himself).

Even with rigorous DNA test requirements, some violent crime scenes won't yield any relevant evidence. And defendants who can afford top-shelf lawyers typically have an advantage that other defendants don't.

The justice system may work pretty well on the whole, but when lives are at stake, the consequences of any shortcoming can be monstrously magnified. The possibility of executing an innocent person was why Illinois' governor last week agreed to make his state the latest to abolish the death penalty.

The current Texas Lawyer reports, "Prosecutors, Defense Lawyers Split on Skinner's Impact," written by Miriam Rozen.

Williamson County District Attorney John M. Bradley was one of sixTexas prosecutors who filed an amicus brief supporting Switzer. He says the opinion now creates "just another loophole for death penalty defendants" to delay their sentences.

In general, Bradley says a Texas prosecutor is limited to getting five to 10 pieces of evidence tested for DNA. But he says a defendant, even at the time Skinner was first tried, could test evidence for DNA, as long as he made a plausible case that it could provide further evidence.

Campbell "Scott" Brumley, the county attorney for Potter County who also joined the brief, says, "My concern has been for an opening of the floodgates to attack criminal convictions under §1983."

Both say they fear that the Skinner decision will open the door for other convicted inmates to file suits in federal courts — beyond the one bite at the apple that they had with habeas — to seek access to DNA after the state properly denies them that access, just to create delays.

In the majority opinion, however, Ginsburg writes, "Contrary to fears of Switzer and her amici, in the Circuits that currently allow for §1983 claims for DNA testing, there has been no flood of litigation seeking postconviction discovery of evidence associated with the questions of guilt or punishment."

David González, a partner in Austin's Sumpter & González who serves as a legislative liaison for the Texas Criminal Defense Lawyers Association, agrees with the majority opinion: The courts won't be inundated with complaints similar to Skinner's, he says.

"It's going tobe limited by the cases that have something to test. Not every case has DNA," says González. He adds, "There are many folks that never want a DNA test. I mean, not all of my clients are innocent. Why is the state so afraid of just testing this stuff in the first place? Not doing so just makes us look bad."

Earlier coverage of the Skinner ruling begins at the link.  The Supreme Court opinion in Skinner v. Switzer is in Adobe .pdf format.

Additional Commentary on Skinner v. Switzer

Today's Austin American-Statesman carries the editorial, "Win for death penalty advocates."

The U.S. Supreme Court, in a 6-3 decision Monday, provided a significant victory for death penalty supporters by ruling in favor of a condemned Texas man battling for post-conviction testing of DNA evidence gathered at a grisly, triple-slaying crime scene in Pampa.

At the heart of this case is the fundamental question — indeed, the only question — that permeates every death penalty case and every execution: Are we sure we've got the right person?

Death penalty advocates, and we are not among those, should live with the perpetual fear of conclusive post-execution evidence that raises serious questions about guilt.

That is why, as we noted in an editorial last March on the eve of the day on which he was to be executed, death penalty advocates should want the courts to give Hank Skinner the chance to make sure the state has the right man in the Pampa slayings.

The Monday decision, allowing Skinner to pursue a federal civil rights lawsuit in which he is seeking court-ordered testing of DNA evidence not used at his trial, gives him the right to make his case as to why that testing should be done. The ruling does not order such testing. It merely allows his lawsuit — which had been thrown out by lower courts — to proceed.

And:

Last March, the Supreme Court stayed Skinner's execution, hours before it was scheduled to happen, so it could decide whether he should be allowed to pursue his civil rights suit.

The answer, overruling decisions by the Texas Court of Criminal Appeals and 5th U.S. Circuit Court of Appeals, came Monday in a majority opinion penned by Justice Ruth Bader Ginsburg.

Amarillo Globe-News columnist Jon Beilue writes, "DNA test added to Skinner's to-do list."

Whether you believe he is the scum of the earth or that he was too intoxicated on vodka and codeine to commit the crimes is not so much the issues as this is:

If we live in a civil and humane society and are in the process of killing a man and untested evidence exists that could either further confirm his guilt, raise reasonable doubt or perhaps even exonerate him, how can that simply be ignored? What does that say about us?

"That's a very reasonable question to ask - that's my question," said Matthew Wright, a criminal defense appellate attorney in Amarillo. "But for a lawyer, and thinking what the other side would say, the best argument I've heard is that you're sorta giving someone two chances."

And:

The remaining untested crime scene evidence, which Skinner has tried and failed twice to get the state to test, seems a bit more than a condemned man grasping at straws.

Maybe I've read too much John Grisham. But his nonfiction book "The Innocent Man" is chilling. An Ada, Okla., man in 1989 was sentenced for a rape and murder he did not commit. Misguided police work, forced "dream" confessions, flimsy evidence and unreliable witnesses helped convict Keith Williamson. Five days from execution, Williamson won a new trial and was exonerated by DNA evidence in 1999. Another man, unconnected to Williamson, was later convicted and sentenced to life without parole.

I'm not suggesting the prosecution was anything like this in the Skinner case. But Williamson was one of 78 inmates exonerated from death row since 1973, according to the Death Penalty Information Center. In addition, The Innocence Project reports that more than 260 have been exonerated through DNA evidence.

So what I am suggesting is because of that, this last evidence needs to tested. If Skinner committed the murders, the evidence should prove that and any remaining doubt will be erased, silencing Skinner supporters and exonerating the memory of Busby's late uncle, who some have accused of the crime. If DNA evidence says something else, well...

"Henry Skinner is going to be a cause celebrity," Wright said, "if the evidence is not tested. It will be 'Texas kills people without regard if he's guilty or not.' None of us wants that. If the test is consistent with the jury's verdict, you won't hear that any more. As a person, I can't believe they haven't tested it yet. I'm shocked. It's beyond me. Just have it tested."

It's simply too important not to.

"The U.S. Supreme Court and the Right to Test DNA Samples," is posted at Time.  It's written by Michael A. Lindenberger.

Skinner's case will head back to lower courts for argument on the merits. But, whatever happens, the Supreme Court decision is another powerful boost, despite its careful tone and narrow limits, for the use of DNA evidence by inmates who are finding new ways to challenge their convictions. And Texas, home to both the busiest death chamber in the country and, in Dallas, maybe the busiest prosecutor in the country when it comes to reviewing wrongful convictions, remains the place to watch as the justice system struggles with the conflict between the human capacity for error and the finality of death.

Politics Daily legal analyst Andrew Cohen posts, "Supreme Court Clears Path Toward Post-Conviction DNA Testing."

Skinner took his cause to federal court and was hours away from being executed by lethal injection last March when the Supreme Court stepped in to halt the proceedings under way at the Texas state prison in Huntsville. By that time, Skinner's cause had become an international one, largely because of the work performed by members of the Medill Innocence Project at Northwestern University, which sends out teams of undergraduate investigators to look into claims of wrongdoing within the criminal justice system. When Medill investigators looked into the Skinner case, starting in 2000, they found significant problems with some of the evidence Skinner's jurors had heard at trial.

In Skinner v. Switzer, Justice Ginsburg ruled that Skinner was entitled to press state officials for testing under Section 1983 in part because "success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction. While test results might prove exculpatory, that outcome is hardly inevitable... results might prove inconclusive or they might further incriminate Skinner." Justice Ginsburg rejected the argument made by Texas' lawyers that allowing such claims everywhere under the federal law would generate a new flood of prisoner litigation. "In the Circuits that currently allow §1983 claims for DNA testing," she wrote, no evidence tendered by Switzer shows any litigation flood or even rainfall."

Earlier coverage of Skinner v. Switzer begins with Texas news reporting of the Supreme Court ruling.

Texas News Coverage of the Skinner Ruling

Brandi Grissom writes, "U.S. Supreme Court Keeps Hank Skinner Alive, Again," for the Texas Tribune.

Now, Skinner must prove to the federal district court that he is entitled to DNA testing. That court will decide whether Texas courts have arbitrarily — and unconstitutionally — applied the state's 2001 law that allows post-conviction DNA testing. "The heart of the case is going to be decided in the next round of litigation in federal court," Owen said.

And:

Joseph Hoffmann, a death penalty expert and law professor at Indiana University’s Maurer School of Law, described the ruling today as technical and not particularly surprising. For Skinner, the decision was just one of many hurdles the death row inmate must still overcome before he can get access to the DNA testing he seeks. "He's quite a ways from actually getting his sentence or conviction overturned," Hoffmann said.

The bigger question that the Supreme Court has not finally resolved — what minimum due process states are required to provide when it comes to DNA testing — remains unanswered, Hoffmann said. But it is possible, he said, that the Pampa murder case could return to the high court and be the one the justices use to answer that long-standing question. "There's still a long way to go," he said.

I want to note Brandi Grissom's early coverage of the issues in the Skinner case, linked in the post, "Hank Skinner and Post-Conviction DNA Testing."  Her two-part series in January 2010, brought the case to the attention of many for the first time.

Both the Austin American-Statesman and the Dallas Morning News carry the AP report, "U.S. Supreme Court rules for Texas death row inmate who wants DNA testing."

The ruling was a victory for the University of Texas Law School's Capital Punishment Clinic, in which students and faculty members work on capital cases. UT law professor Rob Owen is serving as Skinner's lead lawyer in the appeals.

"We look forward to making our case in federal court that Texas' inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand," Owen said.

Edward Dawson, an attorney for Gray County District Attorney Lynn Switzer, whose office prosecuted Skinner's capital murder case, said he was disappointed with the ruling but described it as "a pretty narrow decision on the procedural point."

"We think it left open the question of whether or not Skinner can actually get access to the evidence," Dawson said. "I think there are some strong arguments that he ultimately may not be able to."

Michael Landauer posts, "Hank Skinner decision a step toward truth-seeking," at the Dallas Morning News.

The Supreme Court's decision today is a victory on the path toward truth-seeking. It's often been said by Sharon Keller and others on the Texas Court of Criminal Appeals that finality is the ultimate goal in the appeals process. That's why so many of their death penalty rulings are so narrowly focused on what procedures were followed and when.

But today's ruling opens the door to a civil rights action that might result in a fundamental rethinking of that line of argument. Truth seeking should trump procedure.

Today's Fort Worth Star-Telegram carries, "Supreme Court backs DNA testing for Death Row inmate whose case was tried in Tarrant."  Martha Deller wrote the report with material from Bloomberg News.

Skinner now is seeking DNA testing of seven sets of items, including vaginal swabs taken from Twila Busby, her fingernail clippings and two knives that were found at the house. His lawyers say his inability to get testing of those items shows the inadequacy of a 2001 Texas law that allowed post-conviction DNA testing in some circumstances.

Skinner is invoking a provision in federal law known as Section 1983, which lets individuals sue over violations of their constitutional rights by state or federal officials. A New Orleans-based federal court barred his lawsuit.

In 2009, the high court ruled that inmates don't have a "freestanding right" to demand access to DNA evidence for testing. That ruling left open the possibility that inmates could use Section 1983 to seek DNA access when their rights haven't been adequately protected by state procedures.

The latest case turned on whether the court viewed Skinner's request as an attack on his long-since finalized conviction. The justices have previously said Section 1983 doesn't authorize lawsuits that, if successful, would undermine a state-court conviction.

Ginsburg said DNA testing wouldn't "necessarily imply" that his conviction was invalid.

"While test results might prove exculpatory, that outcome is hardly inevitable," she wrote. "Results might prove inconclusive or they might further incriminate Skinner."

Allan Turner writes, "High court OKs DNA challenge for Texan," for the Houston Chronicle.

Skinner was only steps from Texas' execution chamber last March when the Supreme Court issued a stay in order to take up the case. Requests for DNA testing typically are filed has habeas corpus cases, meaning that the ultimate goal is to free an inmate from custody.

For 10 years, Skinner made unsuccessful attempts to have untested items subjected to DNA scrutiny. His most recent effort was filed as a civil rights case. Federal appeals courts have differed over whether such cases can be filed under civil rights law.

The high court today reiterated that in cases where a prisoner's release from custody is the goal, filing a habeas corpus case is the only remedy. But Skinner's case qualifies as a civil rights matter because it only seeks to pursue DNA testing, which, Ginsburg wrote, "may prove exculpatory, inculpatory or inconclusive."

Skinner's case became an international cause célèbre in anti-death penalty circles after Chicago journalism students found new witnesses and pointed to evidence that had not been DNA tested.

Not from Texas, but with a local focus, Northwestern University's North by Northwestern carries, "Supreme Court rules in favor of Medill Innocence Project inmate," by Nick Castele.

The U.S. Supreme Court ruled Monday in favor of inmate Hank Skinner, a Texas death row inmate whose case the Medill Innocence Project has researched since 2000. The court found that all convicted prisoners, like Skinner, had the right to request DNA testing on evidence that was not used in the original trial.

“I’m overjoyed,” Innocence Project director David Protess said. “I’ve been waiting 11 years for this. So i’m glad that they saw the justice in our arguments, and the evidence we developed, and Hank Skinner is finally going to have the opportunity to prove his innocence.”

Skinner was sentenced to death in Texas in 1995 for the murder of his girlfriend and her two adult sons. The Medill Innocence Project began work on the Skinner case in March 2000, when students uncovered physical evidence witnesses said was critical to the case.

The evidence includes a rape kit, fingernail clippings from the female victim, the murder weapons and a windbreaker found near the murder scene covered in blood and hair. The prosecution did not use this evidence in Skinner’s trial and refused to grant his attorneys access to it.

At the heart of the case was the question of whether federal civil rights law allowed Skinner to access that evidence, which supporters believe might implicate another suspect, Robert Donnell, who was killed in a 1997 car crash. Now, Skinner’s attorneys will proceed with a case in federal court to determine his guilt or innocence using the new evidence.

“It’s a landmark case,” Protess said. He said that the Supreme Court established that all convicted prisoners have a right to request tests of previously-untested DNA evidence.

Earlier Skinner coverage begins with the preceding post.

National News Coverage of the Skinner Ruling

"Justices Allow Inmates to Sue for DNA Testing," by Adam Liptak in the New York Times.

The Supreme Court on Monday made it easier for inmates to sue for access to DNA evidence that could prove their innocence.

The legal issue in the case was tightly focused and quite preliminary: Was Hank Skinner, a death row inmate in Texas, entitled to sue a prosecutor there under a federal civil rights law for refusing to allow testing of DNA evidence? By a 6-to-3 vote, the court said yes, rejecting a line of lower-court decisions that had said the only proper procedural route for such challenges was a petition for habeas corpus.

In her opinion for the majority, Justice Ruth Bader Ginsburg emphasized the narrowness of the ruling. Allowing Mr. Skinner to sue, she said, was not the same thing as saying he should win his suit.

Justice Ginsburg added that a 2009 decision, District Attorney’s Office v. Osborne, had severely limited the kinds of claims prisoners seeking DNA evidence can make. The Osborne decision, she wrote, “left slim room for the prisoner to show that the governing state law denies him procedural due process.”

And:

In 2001, Texas enacted a law allowing post-conviction DNA testing in limited circumstances. State courts in Texas rejected Mr. Skinner’s requests under the law, saying he was at fault for not having sought testing earlier.

Mr. Skinner then sued in federal court under a federal civil rights law known as Section 1983, saying the Texas law violated his right to due process. That suit was rejected in the lower federal courts on the ground that the proper vehicle for a challenge was a petition for habeas corpus.

Section 1983 suits are often more attractive to prisoners than habeas petitions because Congress and the Supreme Court have placed significant barriers in the path of inmates seeking habeas corpus.

Justice Ginsburg wrote that a Section 1983 suit was available in cases where the relief sought by the inmate would not “necessarily imply the invalidity of his conviction or sentence.” Since there was no telling whether the results of the tests Mr. Skinner sought would establish his guilt, clear him or be inconclusive, she wrote, the suit was proper.

But habeas petitions are appropriate, she wrote, where inmates seek “immediate or speedier release from confinement.”

"Supreme Court opens way for prisoners to try to gain access to DNA evidence," by Robert Barnes in the Washington Post.

There was no guarantee in the court's narrow ruling that Skinner, convicted in 1995, will ever gain access to all of the evidence recovered at the crime scene.

Texas is one of 48 states that allow at least some prisoners post-conviction access to DNA evidence, but their rules vary. More than 260 people have been exonerated after conviction through DNA evidence, according to the Innocence Project, which investigates cases and represents inmates.

A divided Supreme Court decided in 2009 largely to leave the decision about testing up to Congress and state legislatures. It ruled that the convicted do not have a constitutional right to testing but left a narrow opening for those trying to prove that a state's laws governing access to DNA are inadequate.

Skinner's attorneys tested that opening by suing Gray County District Attorney Lynn Switzer, saying the decision to withhold DNA testing in his case violated his federal civil rights.

Monday's court majority said a federal court could consider that claim.

Justice Ruth Bader Ginsburg wrote that court precedents allow civil rights challenges if the result would not "necessarily imply" the invalidity of their convictions.

"Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction," Ginsburg wrote of Skinner's suit. "While test results might prove exculpatory, that outcome is hardly inevitable. . . . Results might prove inconclusive, or they might further incriminate Skinner."

Ginsburg seemed to indicate it might be difficult for Skinner to ultimately prevail and win access to DNA evidence. The court's 2009 ruling "left slim room for the prisoner to show that the governing state law denies him procedural due process," Ginsburg wrote.

"Court Rules For Death Row Inmate Seeking DNA Tests," by Nina Totenberg for NPR.  The audio report is available at the link.

The U.S. Supreme Court has pried open the courthouse door a crack for prisoners who after their convictions seek access to evidence for DNA testing. By a 6-3 vote, the court ruled that prisoners have a right to use federal civil rights law to get such material.

Texas leads the nation in the number of prisoners freed by DNA testing, with 41 DNA exonerations, but its state law imposes limits on such post-conviction testing. The Supreme Court's ruling on Monday allowed prisoners to challenge those limits in federal court.

And:

Defense attorneys saw the ruling as an important victory. "There have been for many years a couple of procedural dragons that stood in the way of prisoners trying to use the federal civil rights act to get DNA testing that could exonerate them," says Nina Morrison, a senior staff lawyer at the Innocence Project. Monday's ruling "slayed those dragons," she says.

In order to prevail now, says Morrison, Skinner will have to show that by barring DNA testing for any defendant who failed to ask for it at trial, the state is unreasonably erecting barriers to evidence that could prove innocence.

Outside Texas, such barriers have been tumbling down of late. Just last week, the Pennsylvania Supreme Court invalidated a provision in that state's law that barred post-conviction testing in cases where the defendant had confessed.

Nonetheless, many prosecutors were dismayed by Monday's Supreme Court ruling. Scott Burns, executive director of the National District Attorneys Association, says that "in the real world, people in prison have a lot of time on their hands" and "they now have an entire new avenue" to bring legal challenges.

"Justices rule for death row inmate who wants DNA testing," by David Savage for the Los Angeles Times.

The 6-3 decision opens a narrow window for prisoners to sue and obtain DNA evidence that went untested at the time of their trials.

The Innocence Project in New York says 266 prisoners have been freed because of DNA evidence since 1989, including 17 inmates on death row. Though all states permit prisoners to obtain new tests of evidence under certain circumstances, prosecutors have often resisted.

"Supreme Court rules in favor of prisoners in DNA case," by Joan Biskupic in USA Today.

In Skinner's current appeal, lower federal courts ruled he could not assert a federal civil rights claim to obtain analysis of the remaining, untested items years after conviction.

Justice Ruth Bader Ginsburg wrote the high court's opinion, which reversed that stance and made clear that prisoners may bring such a federal civil rights claim. Yet the court noted that state laws still curtail to varying degrees prisoner access to DNA evidence and their ability to bring a new claim of innocence.

Ginsburg stressed that a key Supreme Court ruling from 2009 "severely limited the federal action a state prisoner may bring for DNA testing" in the face of restrictive state laws regarding DNA evidence.

So while Monday's decision enhances prisoners' ability to assert a claim for DNA testing, the decision offers no guarantees an inmate would be allowed access to the evidence. DNA testing has led to the exoneration of more than 250 people in 34 states, according to the Innocence Project, which helps prisoners establish their innocence through DNA analysis.

Ginsburg noted that Texas officials have offered "several reasons why Skinner's complaint should fail for lack of merit" and that the court was not addressing those arguments Monday.

"There's Hope After Habeas for Inmates, Court Rules," by Barbara Leonard at Courthouse News Service.

"Supreme Court Rules in Favor of Death-Row Inmate Seeking DNA Evidence," by Ariane De Vogue at ABC News.

Earlier coverage of the Skinner case begins with the preceding post; next, Texas coverage.

Editorial Commentary on Skinner v. Switzer

There is extensive coverage of yesterday's Supreme Court ruling in Skinner v. Switzer.  I'll link to editorials in this post, followed by national news coverage and finally, Texas news coverage.

"High court's ruling on DNA tests is a lifeline for inmates," is the editorial in today's Washington Post.

HENRY W. SKINNER was on death row in Texas and less than an hour away from being executed when the Supreme Court agreed to hear his case. On Monday, the justices threw Mr. Skinner and others like him a lifeline.

And:

Texas is among the states that allow convicts to seek post-conviction DNA tests. But two state courts turned down Mr. Skinner's requests; he then pressed his case in the federal system. The justices were asked to determine whether he was legally entitled to do so. In a majority opinion written by Justice Ruth Bader Ginsburg and joined by five others, including Chief Justice John G. Roberts Jr. , the justices concluded that he was.

Justice Ginsburg, in addressing the concerns of critics, noted that there is no evidence that allowing these challenges would lead to a "litigation flood or even rainfall." And she pushed back against the assertion that prisoners would abuse the federal process to illegitimately challenge their convictions. In reality, the court's decision provides prisoners like Mr. Skinner only with a chance to convince a trial judge that additional testing is needed. There is no guarantee that he will prevail and no assurances that the results will help Mr. Skinner; additional testing, after all, could bolster the prosecution's case or prove inconclusive.

"DNA and the truth," is the Chicago Tribune editorial.

If you're going to put a man to death for a crime, you'd want to be sure you've got the right guy. At least most of us would. But prosecutors in Texas have fought a request for DNA testing by Hank Skinner, who was less than an hour away from being executed when the U.S. Supreme Court agreed to hear his case.

On Monday, the court said he may pursue a lawsuit requiring prosecutors to allow analysis of crime-scene evidence. If that evidence confirms Skinner's guilt, there will be plenty of time to put him to death. But if he's wrongly executed, the mistake can't be undone.

Earlier coverage of the Skinner ruling begins at the link

Statement From Hank Skinner's Attorney

This is from Robert C. Owen, Clinical Professor of Law at The University of Texas School of Law.

"We are very pleased with today's decision by the Supreme Court, holding that Mr. Skinner may invoke the protections of the federal Civil Rights Act in his effort to obtain access to evidence for DNA testing.

"The Court's action corrects the Fifth Circuit’s fundamental misunderstanding of this important principle. As Justice Ginsburg states in her majority opinion, there is no reason to fear that lawsuits like Mr. Skinner's will overwhelm the federal courts. The high court’s ruling will simply make it possible for Mr. Skinner to vindicate his due process rights in federal court, a right long enjoyed by prisoners in other parts of the country.

"We look forward to making our case in federal court that Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand."

Owen is Co-Director of UT Law's Capital Punishment Clinic.  Earlier coverage of Skinner v. Switzer begins with the preceding post.

George Ryan

Today's Chicago Tribune carries, "In prison, Ryan defends his widespread pardons and clemencies."  It's written by Annie Sweeney.

At times he was testy and combative, unafraid to use a modest curse word to make a point. In lighter moments, he joked about the food in prison. He also talked of his frustration at being locked up.

Former Gov. George Ryan, who has zealously guarded his privacy since he entered federal prison in November 2007, was heard for the first time — not in an interview with a reporter but under questioning in a civil lawsuit.

The deposition came last March as an attorney for the city of Chicago questioned Ryan for two hours about a pardon he gave to Oscar Walden Jr. half a century after he was convicted of rape. Walden, who alleged Chicago police coerced him into confessing, sought $15 million in damages, but a federal jury sided with the city last week and didn't award him a dime.

Ryan offered few if any specifics on why he pardoned Walden, but he stridently defended his decision to clear death row and grant mass clemencies in his waning days in office in late 2002 and early 2003.

"I just used my judgment like I did on a lot of things," Ryan said. "That's what's called leadership."

And:

Ryan said the state's flawed capital justice system first drew his attention a few months after taking office in 1999 when he watched a TV news report about the release of Anthony Porter, who had spent 17 years in prison after being wrongly convicted of a double murder.

"And I looked up, and here's this little black guy with a big grin on his face and curly hair, happy as hell that he'd just been released from prison after 15 years of incarceration as an innocent man," Ryan said. "It's a bad, bad situation for a country like ours to have a situation like that. … You know how close he came to getting executed? About 48 hours. They ordered his meal … measured him for his burial suit, and they were ready to juice the guy."

"George Ryan deposition sheds light on his Death Row decision," is the Chicago Sun-Times article by Natasha Korecki and Dave McKinney.

It was a brief exchange, but the question was pointed: “Are you going to kill my son?”

From federal prison in Terre Haute, Ind., former Gov. George Ryan, in what’s believed to be the first deposition he’s given about his historic 2003 clemency decision, said the question posed by a onetime classmate led to his move to clear out Death Row.

In a 2010 interview with lawyers, a sometimes combative, sometimes joking Ryan spoke at length about his clemency decision in response to a civil lawsuit, a newly released deposition shows. “A little prison food would probably be good for all of you. I think it’s baloney for lunch today,” Ryan tells attorneys at one point.

The Chicago Sun-Times last week revealed portions of Ryan’s deposition. The imprisoned former governor was compelled to answer a series of questions about why he granted an innocence pardon to Oscar Walden Jr., who was suing the City of Chicago for coercion in federal court.

In response to a freedom of information request, the city released Ryan’s deposition Monday.

While Ryan stuck to much of what he’s said previously regarding his decision, at times he revealed a personal side.

One of the cases he considered involved the son of a onetime high school classmate. The son was on Death Row for shooting a police officer. Ryan didn’t name the inmate, but said he bumped into the classmate at a meeting.

“That was a big impact on my decision, that statement in that meeting, that confrontation,” Ryan said.

Anthony Graves Files Suit for Declaration of Innocence

"Graves sues for his innocence," is the title of the Houston Chronicle report written by Harvey Rice and Joe Holley.

Lawyers for Anthony Graves filed a lawsuit Monday asking a Travis County district court to declare him innocent of capital murder, making him eligible for state compensation for the 18 years he spent behind bars.

"He holds no grudge against the state of Texas" but only wants his reputation restored, the lawsuit says about Graves.

Prosecutors said publicly in October that he was innocent, but the Texas comptroller denied him compensation under the Timothy Cole Compensation Act because the document ordering his release did not contain the words "actual innocence."

Graves did not seek an order compelling Comptroller Susan Combs to pay the compensation because he believes she erred in interpreting a relatively new and untested law and will correct it upon receiving the court order, the lawsuit says.

Graves, 45, also does not want to sue state officials or Burleson County, where he was convicted in 1992 in the slayings of a grandmother and five children, his lawyers said.

"Anthony Graves just wants the compensation money," said his lead attorney, Jeff Blackburn, in an interview. "He's one of the most decent guys I've known."

Blackburn said his client would prefer not to pursue a civil lawsuit against Burleson County.

"I've gotta tell you, if there's anybody who deserves to be sued it's the authorities in Burleson County," Blackburn said at a news conference in Austin at the offices of the Texas Civil Rights Project, which helped draft the lawsuit. "But they're lucky, I guess, because despite all the evil and all the wrong they have done to this guy, he just wants to let it go and move on with his life."

And:

The lawsuit names Texas Attorney General Greg Abbott as a defendant but seeks no action from his office. The attorney general is named to satisfy a requirement of the Uniform Declaratory Judgment Act, Blackburn said.

"In this case, the attorney general is the right person to be involved," he said. "Someone has to speak for the state, and he is the most appropriate party."

The attorney general's office declined comment because officials had not received a copy of the lawsuit.

The lawsuit seeks a declaration of innocence under the state Uniform Declaratory Judgment Act, citing sections of the Texas Constitution guaranteeing every person "remedy by due course of law" and equal rights under the law as reasons for the court to act.

Blackburn said the lawsuit may be the first to use the declaratory judgment law to win a declaration of innocence.

"As far as I know, this has never been done before," he said. "It's the Declaratory Judgment Act that gives the court the ability to do something about those rights."

Brandi Grissom posts, "Exoneree Sues to Clear Name, Get Compensation," at the Texas Tribune.

Anthony Graves, who was freed from jail this year after spending 18 years behind bars for brutal murders he did not commit, sued the state of Texas today to officially clear his name and to force the Texas comptroller to pay him for the time he was wrongfully imprisoned.

Under the Timothy Cole Compensation Act, inmates who are freed from jail after being found innocent of the crime for which they were convicted are entitled to $80,000 per year of wrongful imprisonment plus a lifetime annuity. In total, Graves is due at least $1.4 million under the act, said his lawyer, Jeff Blackburn, chief counsel for the Innocence Project of Texas.

Graves filed a claim with Texas Comptroller Susan Combs after he was released, but it was denied earlier this month. Combs said the order releasing Graves did not have the correct wording to allow him access to compensation.

"Graves Sues for Innocence," is by Jordan Smith at the Austin Chronicle.

Lawyers with the Texas Civil Rights Project and the Innocence Project of Texas, along with lawyer Nicole Casarez – whose journalism class at the University of St. Thomas was integral to having Graves' conviction overturned – have filed the petition with the Travis County Civil District Court of Judge Gisela Triana-Doyal, seeking to have Graves declared "actually innocent" and to have his "name cleared and reputation restored" under Article I of the Texas Constitution – a move that, if successful, could clear the way for Graves to receive compensation from the state for the years he spent wrongfully incarcerated.

Earlier coverage begins at the link.  You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

Lethal Injection Roundup

The AP report on the FDA lawsuit is, "FDA sued over shipments of drug used in executions."  It's written by Greg bluestein and is via the Washington Post.

A federal lawsuit filed against the Food and Drug Administration urges a judge to block imports of a key drug used in the nation's executions that has been in short supply since the sole U.S. maker decided to stop producing it.

The lawsuit filed Wednesday in federal court in Washington, D.C., claims the FDA has knowingly allowed state corrections officials to import sodium thiopental, the sedative used in a three-drug execution cocktail, that has not been approved by the agency.

"It just seems wrong to allow these suspect goods into the country in violation of federal law just because they're used on prisoners rather than law-abiding citizens," said Brad Berenson, the attorney who filed the lawsuit on behalf of death row inmates in California, Arizona and Tennessee.

The shortage has delayed executions in several states, and an Associated Press review found that at least five states - Arizona, Arkansas, California, Georgia and Tennessee - had to turn to England for their supply of the drug. Nebraska, meanwhile, secured a stockpile from an Indian firm.

The lawsuit claims the FDA is neglecting its duty to inspect shipments of sodium thiopental, noting that there are no FDA-approved overseas manufacturers of the drug.

"From our perspective, the FDA has the obligation to make sure the anesthetic works whether it's used in a lethal injection or used in surgeries," Berenson said. "In each case, the purpose is the same - to relieve pain and suffering."

The FDA did not immediately respond to requests for comment, though the agency has long maintained it has nothing to do with the drugs used in executions. But its role has come under more scrutiny after the lone U.S. manufacturer of sodium thiopental, Hospira Inc., announced it would no longer make the drug.

Today's Arkansas Democrat-Gazette reports, "State tight-lipped on execution drug," by Andy Davis.

The Arkansas Department of Correction on Thursday withheld information about its purchase of a British supplier’s lethal injection drug, saying the information is exempt under the state’s Methods of Execution Act.

The Arkansas Democrat-Gazette requested information about the purchase on Wednesday, a day after reporting allegations in a lawsuit by death-row inmates that the department bought the drug from a “ramshackle” business run from the back of a British driving school.

Attorneys for the inmates contend the department cannot guarantee the drug works because it has not been approved by the federal Food and Drug Administration.

In denying the newspaper’s Freedom of Information Act request, Assistant Director Dina Tyler cited the Methods of Execution Act.

Earlier coverage of the FDA lawsuit begins at the link; the civil law suit, Beaty v. FDA, is available in Adobe .pdf format.  More on Dream Pharma, the British supplier is at the link.  Earlier coverage of the Arkansas law, at the link.

Additional News Coverage of the FDA Lawsuit

The civil law suit, Beaty v. FDA, is available in Adobe .pdf format.

Today's New York Times carries, "F.D.A. Sued Over Drug Used in Executions," by John Schwartz.

Lawyers in Washington sued the Food and Drug Administration on Wednesday on behalf of death-row prisoners, demanding that a Federal District Court prohibit importation and use of sodium thiopental, a drug used in many executions. When the sole supplier of the drug in the United States stopped producing it, executions were delayed in several states, and states obtained the drug from overseas suppliers. The agency has long said it has no authority over executions. The lead lawyer in the suit, Bradford A. Berenson, said it was “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.”

"Lawsuit seeks to block imports of key execution drug," is the USA Today post by Kevin Johnson,

The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.

"Death Row Inmates Sue U.S. Over Importation of Execution Drug," by Tom Schoenberg for Bloomberg.

The suit said the FDA allowed states to import “bulk amounts” of thiopental, which hasn’t been sold in the U.S. since 2009 when the sole U.S. manufacturer, Hospira Inc., stopped producing it.

The inmates are seeking an injunction barring future imports of thiopental and the removal of supplies already in the possession of state governments.

The shipments of thiopental entering the U.S. originated from an Austrian facility owned by Sandoz International GmbH, a German company, according to the complaint. The drug was shipped to the U.S. from a London wholesaler, Dream Pharma Ltd., the complaint claimed. Dream Pharma bought the drug from a unit of Archimedes Pharma Ltd., a privately held company based in Reading, U.K., the inmates said in the complaint.

"US inmates challenge importation of execution drug," by Lucile Malandain for AFP.

Arizona used imported thiopental for the execution of Jeffrey Landrigan in October, with the approval of the Supreme Court, but under a flood of public criticism.

The last doses of thiopental made in the United States will reach expiration this spring, which will put American states that practice the death penalty at a crossroads.

"FDA's own regulations preclude the importation of any unapproved new drug and any drug that is not listed with FDA and produced at a registered foreign source," the lawsuit states.

They accuse the agency of being "arbitrary and capricious" and that its agents have "never inspected the processes used to manufacture the thiopental."

"Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions," Bradford Berenson, a lawyer for the plaintiffs, said in a statement.

"Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one's interests," he said.

Michael Kiefer files an updated report for today's Arizona Republic, "Execution drugs: Arizona inmate lawsuit seeks FDA policing."

In mid-October, Donna Benjamin of the American Society of Health-System Pharmacists, which tracks drug shortages, said there were no approved manufacturers of thiopental outside the U.S., and the FDA wasn't aware of any sites making thiopental that would import it.

"Any import to alleviate a drug shortage would have to come from an FDA-approved source," she said.

And Shelly Burgess, a spokeswoman for the FDA, told The Republic in October, "For any product that is planned to be made available in the U.S., FDA would have to first evaluate any potential risks associated with that product including where it is manufactured and whether it meets FDA quality standards."

In November, Dr. Murray Lumpkin, a deputy FDA commissioner, told British government officials, "There are no approved or permitted foreign sources of sodium thiopental."

Nevertheless, the drug was getting through customs, signed off by FDA.

Five shipments from Dream Pharma were seized in Memphis by the FDA between June and November. But all were eventually released.

The Arizona shipment sailed through Customs in Phoenix with approval of the Los Angeles office of the FDA on Sept, 29. According to Cattani, the state has since obtained another shipment.

But then, the FDA changed its tune.

On Dec. 30, Burgess told The Republic that the agency would exercise "enforcement discretion" on the matter.

"Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," she said. The agency would "continue to defer to law enforcement on all matters involving lethal injection . . . "

"Suit could halt executions in states, including Tennessee," is the report in today's Tennessean.

Wednesday's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

It points out the diligence with which FDA prevents states and individuals from obtaining cheap prescription drugs from Canada, while allowing states to import sodium thiopental.

"The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law," said Bradford A. Berenson, a partner in the law firm Sidley Austin LLP, which filed the suit in Washington, D.C.

The firm has expertise in FDA licensing and is working with the Federal Public Defender's Office in Phoenix on the suit.

The suit asks the FDA to not only ban further imports of the drug but to recall the shipments that have already been delivered.

Earlier coverage of the FDA lawsuit begins at the link.

Lawsuit Filed Against FDA Over Imported Sodium Thiopental

"Lawsuit Filed Against FDA To Prohibit The Importation And Use Of Unapproved Sodium Thiopental In Lethal Injections," is the news release issued by attorneys for the inmate plaintiffs.  The civil lawsuit, Beaty, et al. v. FDA, is available in Adobe .pdf format 

Here's the entire text:

Washington, D.C. – Today, on behalf of six death-row prisoners from California, Arizona, and Tennessee, Sidley Austin LLP filed suit against the Food and Drug Administration (FDA) seeking to prohibit FDA from allowing the importation or use of unapproved sodium thiopental. During the past year, FDA has knowingly permitted unapproved sodium thiopental to be imported by state corrections agencies for use in executions by lethal injection. According to Bradford A. Berenson, a partner in the firm’s Washington, D.C. office, “The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.”

The Complaint alleges that FDA is required to deny admission to any drug that is unapproved, misbranded, or adulterated. Sodium thiopental recently imported by various states for use in lethal injections is all three. Because sodium thiopental has not been approved by FDA—meaning that FDA has made no determination of its safety, effectiveness, purity, potency, or any other characteristic—it cannot legally be imported into the United States. Plaintiffs allege that FDA has violated U.S. federal law and acted in a manner inconsistent with its own prior policies and practices by allowing importation of the unapproved drug.

Berenson noted that the lawsuit is “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.” Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners’ breathing and induce cardiac arrest. “Whatever one’s views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions,” Berenson said.

“Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one’s interests, least of all the states’.”

FDA’s decision to allow the importation of unapproved sodium thiopental is unprecedented. The clear command of the federal Food, Drug, and Cosmetic Act (FDCA) is that no unapproved drug may be imported. For that reason, FDA has consistently maintained that no one—including state governments—may lawfully import unapproved drugs for commercial use. In fact, in other contexts, FDA has repeatedly sent letters to state and local governments, denied permission requests, and taken law enforcement measures against states and firms seeking to import unapproved drugs.

Today’s lawsuit asks the federal district court in Washington, D.C. to declare that FDA has violated the law, enjoin it from allowing any further shipments of unapproved sodium thiopental into the United States, and take reasonable steps to recover and destroy the unlawful, unapproved product previously admitted for use by the states. According to Coleen Klasmeier, a partner in Sidley’s Washington D.C. office and head of the firm’s Food, Drug and Medical Device Regulatory practice, “Assuring drug safety and efficacy is the bedrock of FDA's public health mission. We are asking FDA only to fulfill its duty to secure the border against the unlawful importation of potentially substandard and dangerous unapproved drugs.”

Records obtained through requests under various open records laws show that large amounts of unapproved sodium thiopental have been imported into the U.S. by at least five states with the knowledge and acquiescence of FDA. The records suggest that the imported drug was manufactured in Austria and sold by a broker sharing space with a driving school in London to state officials in Arizona, Arkansas, California, Georgia, and Tennessee. Nebraska recently announced that it obtained the drug from India.

Sodium thiopental for injection has never been approved for use by FDA, and there are currently no domestic producers of the drug. There are, however, adequate FDA-approved alternatives available for use in lethal injections.

The Arizona Republic posts, "Arizona inmate lawsuit seeks FDA policing."  It's written by Michael Keifer.

Lawyers for three Arizona Death Row prisoners filed suit in federal court in Washington, D.C., this morning to force the U.S. Food and Drug Administration to police foreign imports of a drug used in execution by lethal injection.

Arizona inmates Donald Beaty, Daniel Cook and Eric King are joined in the suit by Death Row prisoners from Tennessee and California, states which have also recently imported the anesthetic sodium thiopental from Great Britain.

Thiopental has been in short supply since last May because the only U.S. manufacturer of the drug ceased production in 2009.

Though the FDA as recently as last November stated publicly that there was no authorized way to import thiopental, at least five states including Arizona imported the drug secretly from a pharmaceutical supply house in London last summer and fall.

Some of the shipments were detained by the FDA in Memphis for weeks or months, but all eventually were allowed through.

At the end of December, the FDA announced that it would exercise "enforcement discretion" regarding thiopental imports for execution and allow them to enter the country with little more than a caveat that they have not examined the quality of the drug.

Today's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

And:

Furthermore, the suit claims, "FDA is without authority to allow shipments of unapproved new drugs, misbranded drugs or adulterated drugs into this country."

The suit asks the FDA to not only ban further imports of the drug, but to recall the shipments that have already been delivered.

The inital AP report is, "Inmates Challenge Use Of Ark. Execution Drug," via KHBS-TV.

Eight inmates on Arkansas' death row have filed a court challenge over the state's purchase of a drug used as an anesthetic during executions, claiming there may be a problem with its production.The Arkansas Democrat-Gazette reported Wednesday that the suit seeks an order barring use of sodium thiopental unless it is approved by the Food and Drug Administration.The drug is no longer manufactured in the United States, and the suit claims an imported version can't be guaranteed to work without oversight from the federal government.

Earlier lethal injection coverage begins at the link; also, more on the FDA role.  Related posts are in the lethal injection index.

Stephen Bright's Commentary on Race

"Term 'boy' is proof of racial animus," is the title of his OpEd in today's Fulton County Daily Report.  Bright is president of the Southern Center for Human Rights and teaches at Yale Law.

The 11th U.S. Circuit Court of Appeals’ third ruling that a white supervisor calling black men "boy"—as in "Boy, you better get going" and "hey, boy"—is not evidence of racial animus was issued last week by Judges Edward E. Carnes and William H. Pryor Jr. in an unsigned, unpublished opinion. Carnes and Pryor are white men and alumni of the Alabama attorney general's office.

The third judge on the panel, a visiting senior district judge from Ohio appointed by President Ronald Reagan, dissented. He would have upheld a jury verdict finding that Tyson Foods discriminated against a black man, John Hithon, in not promoting him to position as a shift manager at Tyson’s chicken processing plant in Gadsden, Ala., and awarding damages of more than $1 million to Hithon.

The extraordinary conclusion that there is nothing racial in calling black men "boy" was reached in two earlier decisions by panels that involved Carnes and two other white men on the court, Judges Joel F. Dubina, also from Alabama, and Stanley Marcus of Florida. The most recent opinion was the second time the 11th Circuit substituted its opinion for that of Alabama federal juries that awarded more than $1 million to Hithon for employment discrimination by Tyson Foods. (Alyson M. Palmer provided an excellent report on the case in the Daily Report, "11th Circuit: Term ‘boy’ doesn’t prove race discrimination," published Aug. 20.) The case is Ash v. Tyson Foods, 2010 WL 3244920 (11th Cir. No. 08-16135.)

The panel of Carnes, Dubina and Marcus originally held that "[w]hile the use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent, the use of ‘boy’ alone is not evidence of discrimination." It also applied an absurdly demanding standard for establishing that the reason for promoting the white applicant over the black one was pretextual: The plaintiff must show "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." Ash v. Tyson Foods, 129 Fed. Appx. 529, 536, 2005 U.S. App. LEXIS 7219 (2005).

The U.S. Supreme Court summarily and unanimously reversed both holdings. Ash v. Tyson Foods, 546 U.S. 454, 456 (2006). It made it clear that use of the term "boy" is not "always benign" and "[t]he visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."

And:

Alabama juries are not known for being generous in employment discrimination cases—or any other kind of discrimination cases. But Carnes and Pryor—and many of their colleagues—do not see the federal courts as a place where businesses like Tyson Foods must answer for their discrimination against black people in promoting employees.

Mercifully, Judges Elbert Tuttle, Frank Johnson and John Minor Wisdom and many—although not all—of the other great members of the 11th and former 5th Circuit who did so much to advance civil rights are not alive to see this sad, sad day.

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit are African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

The 11-member court has had only two in its history, Horace T. Ward and Clarence Cooper. Ward was appointed in 1979 and took senior status in 1994. Cooper was appointed in 1994 and took senior status in 2009. President Barack Obama has nominated Steve Jones, an African-American man, and Amy Totenberg, a white woman, for judgeships on the Northern District. There are two vacancies on the court awaiting nominations. There has never been an African-American woman on any federal district court in Georgia or the 11th Circuit. Perhaps Obama will correct this with his remaining appointments to the Northern District.

Related posts can be found in the race index

At the Bar

Rick Casey's column in today's Houston Chronicle is, "The coddled lawyers of our fair state."

Criminal defense attorneys will tell you that the most important question to ask a potential client is not whether he is innocent or guilty.

It's how much money does he have.

Houstonian Brisby Brown has learned that it might be useful to turn the tables.

Brown sat in jail for about 18 months on drug charges as, he claims, his attorney pressured him to plead guilty while refusing to look at evidence showing his innocence. Only on the day a jury was being selected did the lawyer send an investigator to the scene of the alleged crime, he said in a complaint to the State Bar.

Apparently when prosecutors got around to examining the evidence, they weren't impressed. They dropped the charges.

In addition to filing a complaint with the Bar, Brown engaged an attorney to sue his defense attorney for malpractice. But the attorney, who would be paid from the winnings, dropped the matter when he learned that the defense attorney had no malpractice insurance.

A jury might have awarded Brown a nice chunk of money for sitting in jail needlessly, but it would be hard to collect that money from an uninsured lawyer, and the new lawyer didn't feel he could afford to spend a lot of time on the case with little chance of getting paid.

So before hiring a lawyer, you may want to ask if he or she has malpractice insurance.

But asking such a question can feel awkward, and one lawyer I talked to said it could discourage a lawyer from taking your case.

That's a good argument for why the Texas Supreme Court, which makes ethical rules for lawyers, should have joined a growing number of states in requiring lawyers to disclose whether they carry malpractice insurance.

And:

In a news release, the Supreme Court justified its decision by saying that nobody clamored for the rule at public hearings.

But according to Austin attorney Charles Herring, who has written a book on legal ethics, “25 of 29 states that have addressed the issue have adopted such a rule.”

What's more, the Texas Supreme Court has already issued rulings relieving two entire bodies of lawyers from much exposure for malpractice.

In a 1995, the Supreme Court considered the case of a woman who accepted a plea deal over a white-collar crime. Only later did she learn that her attorney had not informed her of an offer by federal prosecutors not to seek her indictment if she agreed to testify against associates who were more culpable than she was.

The Supreme Court ruled that anyone convicted of a crime couldn't sue their attorney, no matter how bad the representation, until they had their conviction overturned. It would, the court said, be bad public policy to allow criminals to shift the consequence of their crime to their lawyers.

Additional News Coverage of the Hank Skinner Stay

Allan Turner writes, "Justices may opt to settle DNA issue," in today's Houston Chronicle.

The U.S. Supreme Court on Thursday stayed Skinner's execution to consider taking up his lawyers' writ of certiorari seeking review of a lower court's rejection of Skinner's civil rights request for such testing.

Skinner's lead attorney, Rob Owen of the University of Texas' Capital Punishment Center, called on the court to resolve the question, noting that, at present, five circuit courts allow civil rights claims, two do not and five others are undecided.

The New Orleans-based 5th Circuit U.S. District Court denied Skinner's request for DNA testing of bloody knives, material found beneath his victim's fingernails, rape kit samples and other items found at the crime scene in the Panhandle town of Pampa.

Skinner, 47, was condemned for the Dec. 31, 1993, murders of his girlfriend, Twila Busby, and her two adult sons.

Adam Gershowitz of the University of Houston Law Center said it is “very likely” the court will take up the case. “The issue has been brewing for a long time,” he said. “There's been a lot of controversy between the circuits. ... You need five votes to grant a stay and only four votes to take up a review.”

Prisoners wanting courts to order DNA testing can submit the requests in the form of habeas corpus filings or as Section 1983 civil rights claims. But, said Gershowitz, making habeas corpus claims for DNA testing at the federal level rarely is successful. That's especially true when petitioners attempt to introduce new issues that the defendant's lawyer failed to raise at trial.

Federal courts, he said, are loathe to second-guess lower state courts.

“They don't want to step in at the last minute and reverse a case, especially if the state court hadn't had an opportunity to look at all the issues,” Gershowitz said. “They consider it the petitioner's fault for not bringing up the issues earlier.”

At the heart of the controversy over civil rights appeals is whether the prisoner simply is seeking DNA testing of evidence or is demanding to be released from prison.

An effort to be set free typically would be presented as a habeas corpus case, Gershowitz said, while an effort only to obtain testing could be a civil rights case.

The proper route for seeking testing becomes less clear when a prisoner wants to obtain DNA testing in order to be freed from prison.

The BLT/Law.com has, "Justices Delay Execution, May Examine DNA Testing Issue," posted by Marcia Coyle.

The Supreme Court’s “11th hour” stay of execution issued last evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term.

The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court’s order will remain in effect until the justices act on Skinner’s petition for certiorari.

Skinner’s counsel, Robert Owen of the University of Texas School of Law, last night expressed relief in a statement, saying, “As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing.”

The main issue raised by Skinner that may have captured the Court’s attention is whether a state inmate seeking access to DNA testing of evidence may raise that claim in a Section 1983 civil rights action instead of a federal habeas petition.

In Skinner’s petition for review, Owen told the justices that seven of nine federal courts of appeals have approved of the civil rights vehicle. Two, including the U.S. Court of Appeals for the 5th Circuit which rejected Skinner’s claim, do not.

Last term, the civil rights versus habeas issue was raised in a case from Alaska -- District Attorney’s Office for the Third Judicial District v. Osborne. The Court decided Osborne on other grounds.

ABC News posted, "Down to His Final Meal, Hank Skinner Granted Stay of Execution in Texas Murder Case," by Eamon McNiff.

Hank Skinner never wavered in his insistence that he did not murder Twila Busby and her two sons.

According to toxicology tests, Skinner had taken a mixture of Xanax and alcohol and a nearly-lethal dose of codeine the night of the murders; Skinner claims he was passed out on Busby's couch at the time she was killed. An affidavit from Skinner's friend Howard Mitchell said that Mitchell found Skinner "out cold" when Mitchell arrived to take him and Busby to a New Year's party.

Skinner also maintained that the real killer was Busby's uncle, Robert Donnell, whom Skinner claimed was a violent man who had made unwanted sexual advances toward Busby earlier on the night of her death. Donnell was killed in a car crash in 1997.

In 2000, Skinner's case was picked up by a group of students from the Medill Innocence Project at Northwestern University in Evanston, Ill. Led by their teacher, David Protess, the students had already helped win stays of execution for 11 inmates on death row in Illinois by the time they took up Skinner's case.

They quickly began interviewing witnesses, including Andrea Reed, the prosecution's star witness at the time of the trial who said Skinner told her he killed Busby. Reed later recanted her testimony and told Protess' group she "felt pressured" by prosecutors to implicate Skinner, the group's report on the case says.

They also interviewed Donnell's widow, who they say claimed Donnell became violent when he drank. The report also says Donnell's neighbors claimed he wore a windbreaker similar to one found at the crime scene, and was spotted cleaning out his truck a few days after the murders.

The group's biggest find -- and the central point in Skinner's plea to have his case reexamined -- was DNA evidence never tested for trial, partly because Skinner's attorney at the time didn't want it.

Skinner's DNA was found at the crime scene, but Harold Cormer, his attorney at the time, said in reports then that he felt the samples would have implicated Skinner in the killings.

"It was obvious from the start that DNA would determine the truth of what happened in that house," Northwestern's Protess said today in an e-mail to ABC News.

Earlier coverage begins with the preceding post.

An Update on Gary Gauger

His case was featured in the play, "The Exonerated."  "Jury rules detectives did not frame Gauger," is Jillian Duchnowski's report in today's Northwest Herald in Illinois.

Both sides in Gary Gauger’s civil trial agreed that he sat on death row while innocent of slashing his parents’ throats, but jurors did not find that three sheriff’s detectives framed him.

Eleven jurors found in favor of Undersheriff Gene Lowery and retired Detectives Beverly Hendle and Chris Pandre after deliberating about five hours Thursday. The verdict denied Gauger of the $20 million or more he was seeking for post-traumatic stress disorder and for the 3½ years he spent behind bars, including nine months on death row.

Gauger, 57, sat staring straight ahead as Judge Maureen McIntyre read the jury’s verdict after a trial of almost two weeks. Jurors also found that the three detectives had probable cause to arrest him in April 2003 and had not acted with malice nor conspired against him.

Lowery said the verdict restored his and his former colleague’s honor.

“I don’t think there’s anything to celebrate but what we’ve personally gained,” Lowery said.

“... We were accused of wrongdoing, and we were just doing our jobs” Lowery said.

Gauger’s attorney, Matthew Crowl, said he and his client respected the verdict but were “very disappointed.” Crowl said they planned to appeal.

“We felt the evidence was strong, but we understand it’s a high burden to meet [in] a malicious prosecution case,” Crowl said.

Gauger was sentenced to die by lethal injection after a McHenry County jury convicted him late in 1993 of his elderly parents’ grisly murders. Ultimately that conviction was overturned, former Gov. George Ryan pardoned him, and two motorcycle gang members were convicted of murdering Ruth and Morris Gauger as part of a federal racketeering case.

Earlier coverage of Gauger's civil suit is here.

More Misconduct ... And Cost?

Gary Gauger, the exonerated former Illinois death row inmate, is suing law enforcement officials over his treatment.  The Northwest Herald today reports, "Jury selection continues in malicious prosecution case."  It's written bu Jillian Duchnowski.

Jury selection will continue today for Gary Gauger’s malicious prosecution lawsuit against the sheriff’s office.

Gauger, who was convicted and later exonerated of his elderly parents’ 1993 murders, is claiming three sheriff’s investigators maliciously initiated and supported the criminal proceedings against him. Gauger, 57, seeks damages for the more than three years he spent behind bars and for post-traumatic stress disorder.

On Monday, attorneys chose six jurors; they will pick a total of 12 jurors and two alternates.

Attorneys asked potential jurors about their opinions on post-traumatic stress disorder, wrongful convictions, and police credibility. Several potential jurors were excused because they had heard about Gauger’s legal struggles in the news media or through friends.

The original criminal case hung on a confession that police claimed Gauger made after a long interview shortly after his parents’ bodies were discovered.

And:

Gauger was sentenced to die by lethal injection and spent 20 months at Stateville Correctional Center.

In March 1996, an appellate court threw out Gauger’s confession to sheriff’s detectives after law professor Larry Marshall and Northwestern University School of Law’s Center on Wrongful Convictions took up his case.

Former Gov. George Ryan pardoned Gauger after his conviction was overturned, and federal authorities secured convictions of two Outlaw motorcycle gang members for the murders of Morris and Ruth Gauger.

Gauger was one of the individuals depicted in the play, "The Exonerated."

Walter Mondale on Gideon

"A Key Legal Right at Issue," is former state attorney general, U.S. Senator and Vice President Walter Mondale's OpEd in today's Washington. Post.

More than 45 years ago, as attorney general of Minnesota, I joined with the attorneys general of 21 states in asking the Supreme Court to ensure that counsel would be appointed for all people facing criminal charges who could not afford it. The court answered our plea. Yet today, its historic decision in Gideon v. Wainwright is at risk.

In Gideon, the Supreme Court ruled that Florida violated the Constitution when it refused to appoint counsel for Clarence Gideon, a defendant who lived in a rooming house and had just $25 to his name. The opinion recognized the "obvious truth" that "in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."

Yet states across the country routinely fail to appoint counsel to people who are genuinely unable to afford representation on their own. A report published by the Brennan Center for Justice at NYU Law School last fall, "Eligible for Justice," found that if Gideon were to face criminal charges in Florida today, he might well be denied a public defender. Under Florida law, he could be disqualified for counsel if he has assets exceeding $2,500 (excluding a house), a car valued above $5,000, or had posted bail of more than $5,000, even if none of those assets permitted him to pay the retainer -- often several thousand dollars -- that defense lawyers routinely charge.

And:

A number of lawyers groups, led by the American Bar Association, have endorsed an expansion of the right to counsel recognized by Gideon to noncriminal matters where important legal rights, such as loss of housing, are at stake.

Many European countries provide such representation to indigent civil litigants. The backtracking that we are experiencing in the area of criminal representation undermines these efforts to move forward in the civil area. Our justice system depends on the idea that everyone is to be treated fairly, but a lack of resources is affecting the progress the Gideon decision brought to our criminal justice system and is blocking progressive efforts to extend the right to counsel in certain civil cases.

This month marks the 46th anniversary of the ruling in Gideon v. Wainwright. It is crucial that the states rededicate themselves to providing competent defense counsel to all people facing criminal charges who cannot afford to pay. The federal government, too, has an important role in providing the states with technical assistance, monitoring their compliance and enforcing the constitutional right to counsel. The promise of Gideon is ringing hollow, both for defendants, who count on competent counsel for their freedom, and for our society, which counts on the courts to achieve fair and reliable results. We cannot move forward until we stop the erosion of Gideon's promise to criminal defendants. My hope is to celebrate the 50th anniversary of Gideon -- not to have to use that occasion to mourn our continuing failure to heed its call.

More is in StandDown's indigent defense index.  It's always a good time to promote Anthony Lewis' 1964 classic, Gideon's Trumpet.  There's a reason that it remains in print 45 years after its initial publication.