The StandDown Texas Project

Robyn Blumner on 'The Wrong Carlos'

Syndicated columnist Robyn Blumner writes, "When the state kills the innocent," for the Tampa Bay Times.  It's also available as, "Innocents have been executed via the Columbus Dispatch and Tribune Media Services.  It's a must-read.

If you’re reading this in a comfortable, middle-class home, what happened to Carlos DeLuna almost certainly could never happen to you.

But everyone should care about DeLuna’s story because it lays bare America’s broken “machinery of death,” to quote former U.S. Supreme Court Justice Harry Blackmun. After decades on the bench, Blackmun finally stopped upholding death sentences. He said the potential for error is too great in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

DeLuna was a poor Hispanic nobody with a criminal record who was executed in Texas for a crime he didn’t commit. The system in Texas does not go out of its way for people like DeLuna. He was put to death in 1989 for the 1983 knife slaying of Wanda Lopez at a convenience store where she worked in Corpus Christi.

When DeLuna was arrested a short time after the murder, there wasn’t even a microscopic drop of blood on his clothes or shoes, despite a crime scene where Lopez’s blood was splattered on walls and pooled on the floor. A man’s bloody footprint at the scene was never measured by detectives to find a match.

Had police, prosecutors or defense lawyers done their job, they would have uncovered evidence pointing to another man. Carlos Hernandez was a knife-toting violent felon who told multiple witnesses that he had committed the Lopez crime. Hernandez died in prison in 1999 of cirrhosis of the liver.

And:

In 2006, Supreme Court Justice Antonin Scalia argued that because mistaken convictions have been uncovered, America’s death penalty is justified. He declared with relish that the system of procedural safeguards actually works because no innocent person, “not one,” has been wrongfully put to death. If there has been, Scalia wrote, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

Excuse us, Justice Scalia, but here are two: Carlos DeLuna and Cameron Todd Willingham. These are two men whose stories should lead all of us to conclude, as Justice Blackmun did, that America’s death-penalty experiment has failed.

The National Association of Criminal Defense Lawyers interviews Columbia Law prof. James Liebman in a podcast.  You can listen at the link.

Earlier coverage Carlos DeLuna and the Columbia HRLR acticle is at the link.  You can read the full article at The Wrong Carlos.

Additional Coverage, The Wrong Carlos

Today's San Antonio Express-News carries the editorial, "DeLuna case shows flaws in system."

Many people assume that the more serious the criminal case is, the more meticulously it is investigated and prosecuted. If the state is going to send someone to prison for life or to the death chamber, it's often believed, the case against him must be rock solid.

As the increasing number of DNA exonerations demonstrates, that's not always so. According to the Innocence Project, 289 people have been exonerated of serious crimes in the United States on the basis of DNA evidence since 1989. Texas leads the nation with 44 such exonerations.

One involved Michael Blair, who served 14 years on death row before he was exonerated in 2008. The most recent involves Michael Morton, who served 25 years of a life sentence for the murder of his wife, while the actual murderer was free and went on — authorities believe — to commit a second murder.

Now an investigation by the Columbia Human Rights Law Review presents a compelling argument that the state of Texas put the wrong man to death in 1989 when it executed Carlos DeLuna for the murder of Corpus Christi convenience store clerk Wanda Lopez. The DeLuna case joins those of Cameron Willingham, Claude Jones and Ruben Cantu in offering strong evidence that deeply flawed death penalty cases get through the criminal justice system, with all its checks and balances and all its avenues of appeal.

And:

But if Texas is going to reserve the right to exact the ultimate sanction, the state's criminal justice system will have to do a better job of ensuring that those who end up on death row are actually guilty of their crimes.

Houston Chronicle columnist Patricia Kilday Hart writes, "Can't count on eyewitnesses to ID criminals."

"Why do journalists care so much about criminals?" That was the simple question posed in an email I recently found in my inbox. The author didn't tell me the grounds for her premise, but it arrived right after a column I had written about providing lawyers for poor people accused of crimes. I thought about the email this week after reading Chronicle reporter Allan Turner's story about Carlos DeLuna, who was executed by the state of Texas for a 1983 robbery-murder in Corpus Christi that he almost certainly did not commit.

And:

During the last session of the Texas Legislature, a bill by Sen. Rodney Ellis, D-Houston, was passed into law requiring the Law Enforcement Management Institute of Texas at Sam Houston State University to adopt a model policy for police lineups, to reduce the possibility of injecting error into the process.

The bill was recommended by the Timothy Cole Innocence Commission, named for a Texas Tech University student who was convicted of a rape he did not commit and died in prison of an asthma attack before he was exonerated by DNA evidence. The rape victim in the case was shown Cole's picture repeatedly until she selected it, and a police officer congratulated her for her selection.

Earlier this year, LEMIT finalized its model policy. Among the recommendations: Eyewitnesses should be shown suspects' photos one at a time, instead of all together. That, the experts say, reduces subconscious pressure to select a person who looks most like the criminal. Each suspect stands alone.

That's not how the Houston Police Department currently conducts photo lineups. According to a 2009 policy, photo spreads are shown to witnesses.

When LEMIT took testimony regarding its recommendations, Houston police Detective Mark Holloway argued there wasn't enough research to abandon photo spreads in favor of showing the photos sequentially (one-at-a-time) to witnesses.

But a prestigious think tank, the American Judicature Society, says otherwise. In a recent survey of research, the AJS concluded that "decades of laboratory research" show that the "sequential procedure reduces mistaken identifications with little or no reduction in accurate identifications."

Earlier coverage of Carlos DeLuna and the Columbia HRLR investigation begins at the link.  All coverage is in the Carlos DeLuna category index.

From New Mexico

"An end to the death penalty," is the editorial column in the Las Cruces Sun-News.  It's by Walter Rubel, the paper's managing editor.

Robert Fry of Farmington and Timothy Allen of Bloomfield will remain the last two inmates on New Mexico's death row after a Santa Fe jury spared the life of Michael Astorga on Friday and instead sentenced him to life in prison for the murder of Deputy James McGrane during a 2006 traffic stop. The New Mexico Legislature repealed the death penalty in 2009, and then-Gov. Bill Richardson earned an audience with the pope by signing the bill into law. New Mexico has had only one execution since 1960.

Richardson had opposed repeal of the death penalty when he first took office. In a statement issued at the time he signed the bill, he explained why he had changed his mind, describing it as "the end of a long, personal journey for me.

And:

Richardson and I didn't always see eye to eye, but on this issue his reasoning almost exactly mirrors my own. I've never opposed the death penalty on moral grounds. I simply don't trust a legal system where defendants too often get whatever justice they can afford.

Earlier coverage from New Mexico begins at the link.

Garcetti: Death Penalty Serves No Useful Purpose

"The risks of the death penalty outweigh any justification," is the title of former Los Angeles District Attorney Gil Garcetti's letter to the editor of the Washington Post.  Garcetti is active in the SAFE California ballot initiative to repeal that state's death penalty.

In his April 30 column, “Connecticut’s courage,” E.J. Dionne Jr. wrote that “American politics is still capable of springing surprises.” For some, the California vote in November to replace the death penalty with a life sentence without parole will be surprising — as was my own change of mind. I served in the Los Angeles County District Attorney’s Office for 32 years, eight as district attorney. I was responsible for enforcing the death penalty law when appropriate.

I now believe that the death penalty serves no useful purpose, that spending $184 million annually to enforce it is obscenely expensive and that it is not a deterrent. With more than 720 people on California’s death row, my guess is that like some in Illinois and other states, a few of California’s condemned are innocent. We might not yet know who they are, but virtually every week, throughout our nation, evidence is found that proves someone’s innocence.

Coverage of the California ballot initiative begins at the link.  E.J. Dionne's syndicated column is also noted.

Commentary From Colorado

"It's time to kill the death penalty," is the title of Barry Noreen's column in the Colorado Springs Gazette.

No one likes to go easy on crime in an election year and there was no attempt to end Colorado’s death penalty law during this session of the Colorado General Assembly.

Too bad, because the ultimate sanction is unevenly applied in Colorado, it’s irrational, it does not serve as a deterrent to murder and costs us a lot of money. And there’s always that chance that we convict people who are innocent.

Last week, Robert Dewey, 51, was exonerated of the rape and murder charges he was convicted of in 1996 in Mesa County after DNA evidence proved he could not have been the killer.

Good thing we didn’t execute Mr. Dewey, right?

And:

Cold-blooded killers belong in prison for life, but death penalty cases cost more money than the cost of a prison cell. And lethal injections don’t make us safer.

Related posts are in the abolition and column category index.

More on North Carolina's RJA

"Put To Death For Being Black: New Hope Against Judicial System Bias," is Touré's latest Time column.  Here's the beginning:

The wind of revolution is beginning to blow through the halls of justice. It’s a small breeze now and the impact of what many consider one of the worst Supreme Court decisions of the 20th century still weighs heavily, but in North Carolina something called the Racial Justice Act is suggesting that a change is gonna come.

Many studies have shown that there is significant racial bias in the administration of the death penalty. Defendants are more likely to be sentenced to death for killing whites than for killing blacks and black defendants are more likely to get the death penalty than whites, as was referenced in David Baldus’s 1998 report “Racial Discrimination and the Death Penalty”. But a study by Jennifer Eberhardt found the impact of race to be even more nuanced: judges and juries perceive defendants who have physical traits that are stereotypically associated with blackness (broad nose, big lips, dark skin) to be more “death worthy.” What a horrific term. In Eberhardt’s study, stereotypically black-looking defendants were twice as likely to be sentenced to death. Sociologists know that race matters in capital punishment, but the Supreme Court has refused to notice since a 1987 decision in McClesky v Kemp.

A Los Angeles Times survey of liberal legal scholars named McClesky one of the worst decisions since World War II. NYU law professor Anthony Anderson called it “the Dred Scott of our time,” referencing the 1857 decision that upheld slavery. Ohio State University Professor Michelle Alexander told me it was the Plessy v Ferguson of our time, referencing the 1896 decision to justify racial segregation. Justice Lewis Powell, who wrote the majority opinion on McClesky, later told his biographer that was one of two votes he regretted.

Earlier coverage of the RJA ruling, McCleskey, and David Baldus at the links.  Related posts are in the race category index.

Montana Clemency Hearing for Canadian on Death Row

"Convicted murderer to plead for life at clemency hearing," is the Great Falls Tribune staff report.

Tomorrow morning convicted murderer Ronald Smith will walk into the Powell County Court House in Deer Lodge and plead for his life.

Almost 30 years earlier, Smith ignored the pleas of his two victims. He and another Canadian hitchhiker forced two young Blackfeet men into the woods near Marias Pass and shot them both in the head. It was a chilling crime — one Smith has never denied responsibility for.

During a hearing in 1983, Smith told the court that he killed Thomas Running Rabbit and Harvey Mad Man because he wanted to steal their car and because he wanted to know, "what it would feel like to kill someone." Then, in a surprise move that caught both state prosecutors and his own attorney off guard, Smith rejected an already negotiated plea agreement and requested the death penalty. At a sentencing hearing in March 1983, the court granted his request.

A few weeks later, Smith changed his mind. Since then, he and his attorneys have appealed his sentence seven times, variously arguing that Montana's method of execution is unconstitutional, that he received ineffective legal council and that a variety of mitigating circumstances warrant the commutation of his sentence. He has now exhausted that appeals process.

On Wednesday, Smith is scheduled to appear before the Montana Board of Pardons and Parole one last time. The parole board does not have the authority to commute Smith's sentence, but Smith will ask the three-member panel to recommend to the governor that his death sentence be commuted to life imprisonment without the possibility of parole. Only the governor can grant such clemency.

The CBC News reports, "Canadian on death row in U.S. hoping for clemency."

The only Canadian facing the death penalty in the United States hopes to persuade the people who will decide his fate he's not the same man he was 30 years ago.

Ron Smith, 54, has been on death row in a Montana prison since 1982 after he and an accomplice were convicted of killing two men in Montana.

Beginning Wednesday, he'll ask for clemency at a two-day hearing before the state's Board of Pardons and Parole.

"The person that committed those crimes isn't sitting here," the Red Deer, Alta., native told CBC's Mark Kelley in an interview to be aired on CBC News Network Tuesday night. "And again, I'm not trying to downplay the crime.

"I had a moment where emotions and anger got the best of me and I committed a horrible crime. That doesn't define me. If you want to define me, then take a look at the 30 years," he said.

"Canadian on death row to plead for his life," by the Canadian Press is via CP24.

His is the final name on the list of 16 witnesses put forward by his attorneys for the two-day clemency hearing before the Montana Board of Pardons and Parole beginning Wednesday in Deer Lodge, Mont.

The hearing is being held near the federal penitentiary where Smith, originally from Red Deer, Alta., has spent the last three decades locked up.

"I've always wanted an opportunity to step outside of all of this and to be able to apologize to the family and explain to them just everything about me at that point in time. I was a completely different person," Smith said in an interview last month with The Canadian Press. "It's who I am, who I've become and what I've got going into the future."

The decision to speak at the hearing before the three-member panel was entirely up to Smith, said Don Vernay, co-counsel for Smith who works out of Albuquerque, N.M.

"What we want to do is wait until everything is done and then have the last word," he said. "He's got to speak to the board. These are the people who are going to decide if he lives or dies. He's going to express his remorse and his desire to live."

A flood of support has been flowing into the office of the Board of Pardons and Parole asking it to spare Smith's life.

"Our office has received and continues to receive a colossal amount of support for the commutation from around the world based on individuals' moral beliefs against the death penalty rather than a personal investment or opinion with this particular case," writes a board staffer in a leaked report obtained by The Canadian Press last month.

"Executing Ronald Smith is simply not moral," is Naomi Lakritz' column for the Calgary Herald.

When the Montana parole board meets Wednesday to discuss the fate of death-row inmate Ronald Smith, it will consider his conduct in prison, his remorse for his crime, the feelings of his family, and the feelings of the families of the two men he murdered almost 30 years ago.

But one thing I'm willing to bet the board won't discuss is the only thing that matters — whether executing Smith for the killings of Thomas Running Rabbit and Harvey Mad Man is in itself, a moral thing to do. The answer, clearly, is no. Killing is not moral.

To say that killing Smith is immoral is not to deny or minimize the anguish that the two victims' families continue to suffer. Rather, it means that when meting out punishment, the justice system should never stoop to the level of the criminals who come before it, for then it is just as guilty as they are and has just as much blood on its hands as they do.

I don't know how Smith can live with himself after what he did, but I also don't know how members of the parole board can live with themselves if the board recommends to Montana Gov. Brian Schweitzer that Smith should die. Is the U.S. a civilized society, or not? I would have to say that when a state governor holds the power of life or death in his hands, the answer is a loud "not." How does that work?

Earlier coverage of Ronald Smith's case begins at the link.  Related posts are in the clemency and foreign citizen indexes.

E.J. Dionne on the Connecticut Repeal

"Little Connecticut’s big message on the death penalty," is the title of E.J. Dionne's syndicated column, via the Washington Post.  He's a member of the Washington Post Writers Group.  Here's an extended excerpt from this must-read column:

Since the 2010 elections, newly empowered conservative and Republican state legislatures have gained national attention with their wars on public employee unions, additional restrictions on abortion and new barriers to voting.

Against this backdrop, the little state of Connecticut has loomed as a large progressive exception. Last year, it became the first state to require employers to grant paid sick leave. It also enacted a law granting in-state tuition to students whose parents brought them to the United States illegally as young children.

And last week, Connecticut Gov. Dan Malloy signed a law repealing the state’s death penalty. There are now 17 states without capital punishment, Illinois having joined the ranks last year. What happened in Connecticut brings home the flaw in seeing everything that has happened in the states since the midterm vote as embodying a steady shift rightward.

Where they hold power, progressives have also been using their states as laboratories, and Malloy is part of an impressive group of mostly smaller-state Democratic governors who have combined a moderate, business-friendly style with progressive policymaking. Their ranks include, among others, Govs. Jack Markell in Delaware, Martin O’Malley in Maryland, John Hickenlooper in Colorado, Deval Patrick in Massachusetts and outgoing Gov. John Lynch in New Hampshire.

After the 2012 election, a key front in the battle for America’s political future will involve how the various left and right experiments in the states are judged. Aggressive conservatives such as Govs. Scott Walker in Wisconsin and John Kasich in Ohio are in the headlines now, and the recall Walker faces will keep him there for a while. But there will be a quieter and more comprehensive reckoning down the road.

Part of this reckoning will be a remarkable pivot in the politics of the death penalty, the premier issue on which an overwhelming consensus favoring what’s taken to be the conservative side has begun to crumble.

In the 1980s and ‘90s, capital punishment was a staple of Republican campaigns against a handful of liberals who bravely stuck with their opposition to the ultimate punishment. George H.W. Bush used the issue effectively against Democrat Mike Dukakis in the 1988 presidential campaign. Republicans also used it in their 1994 electoral sweep, notably in defeating three-term Democratic Gov. Mario Cuomo in New York. And no wonder: In 1994, support for the death penalty hit its peak of 80 percent nationwide.

But a Gallup survey last fall showed how much things have changed: Support for capital punishment was down to 61 percent. Among the many reasons for the drop are a decline in crime rates, which has increased public confidence in the criminal justice system, and a stream of reports casting doubt on the guilt of some who were executed. In addition, significant groups of libertarian Republicans and opponents of abortion have crossed to the repeal side. An important test of the new politics of capital punishment will come this November in a California death penalty referendum.

For all this, it still takes political courage to end capital punishment. A Quinnipiac University poll released last week as Malloy signed the death penalty repeal found 62 percent of Connecticut voters still favoring executions of those convicted of murder, with only 30 percent opposed. Just 29 percent of those queried approved of the legislature’s handling of the issue, while 51 percent disapproved.

But (and it’s a very important but) support for the death penalty, in Connecticut and elsewhere, is not as robust as it looks. When Quinnipiac posed a different question — “Which punishment do you prefer for people convicted of murder, the death penalty, or life in prison with no chance of parole?” — only 46 percent favored the death penalty. An equal number chose life without parole. Death penalty opponents have an opening they haven’t had for some time.

Earlier coverage of the Connecticut repeal begins with the New York Times editorial noted in the preceding post.

Connecticut Reflections

"Death Penalty Repeal Changes The Legal Landscape," is by Alaine Griffin of the Hartford Courant.  It appeared in the Saturday edition.

Though the bill calls for an end to the death penalty as punishment for future capital crimes, the 11 death row inmates already facing execution in Connecticut surely will seize on the unusual prospective clause in the legislation as a life raft in making their arguments. They will want to be heard on why the repeal should apply to them retroactively.

The timing of their challenges could come as prosecutors and defense lawyers gear up for the upcoming and long-awaited habeas corpus trial on claims by 10 death row inmates that there is racial, ethnic and geographic disparity in the way the death penalty is administered in Connecticut.

Defense lawyers said that if the death row inmates were to prevail in the habeas trial — scheduled to begin June 5 in Superior Court in Rockville — those once facing execution would have their sentences converted to life in prison without the possibility of release.

During the trial, inmates are expected to introduce as evidence a statistical study of death penalty cases that defense attorneys will argue shows that the application of the death penalty in Connecticut is arbitrary. Ten of the 11 men on death row are petitioners in the case.

And:

William V. Dunlap, who teaches constitutional law at the Quinnipiac University School of Law, said the arguments likely to be raised by death-row inmates — that capital punishment violates due process and equal protection clauses of the state and U.S. constitutions and the Eighth Amendment prohibition against "cruel and unusal punishment" — have merit.

But Dunlap and other legal experts say they do not think those arguments would help death-row inmates with the issue of the repeal. The intent of the Connecticut legislature is clear — the 11 men already convicted and sentenced to death still should be executed — and broad constitutional rulings that contradict the intent of the legislature are the last thing the courts want to do, they say.

Courant columnist Susan Campbell writes, "Death Penalty Repeal — A Cause For Prayer."

The morning after the House of Representatives' historic vote to repeal the death penalty, I was scheduled to read a poem at a Hartford school.

Grace Academy is in the heart of Hartford, and draws girls from around the city to a rigorous middle school curriculum. I was due at 8 a.m., after a late night vote Wednesday.

And:

At Grace Academy, the girls sat on the floor while I read Maya Angelou's "Inaugural Poem," the one she wrote for President Bill Clinton's 1993 inauguration that included this: "Do not be wedded forever to fear, yoked eternally to brutishness. The horizon leans forward."

Afterward, the girls shared the names of people for whom they are praying — grandmothers, mothers, friends of grandmothers — and me. A couple of them said they'd pray for me and that touched me deeply. I offer that, then, for the people disappointed at Wednesday's vote. I offer prayers, as well, for the Petits, the Healys, the Laffins and others for whom the world went dark. And I offer them for the rest of us, too.

CT News Junkie posts "Lawmaker Guided By Experience As Defense Attorney," by Hugh McQuaid.

One lawmaker who voted against the repeal of the death penalty Wednesday, came to the debate with a unique perspective — he was a defense attorney for a man exonerated of murder.

When Rep. David Labriola, R-Oxford, isn’t at the state Capitol, he works as a private criminal defense attorney. That’s how he came to know Miguel Roman. In the 1980s, Roman was convicted of killing a pregnant Hartford teenager and sentenced to life in prison.

Labriola said the conviction was based mainly on testimony from a man who shared a cell with Roman and claimed to have overheard him confessing to the murder. Even back then, Labriola says he didn’t believe his client was guilty. He told the court as much during Roman’s trial.

But Roman sat in prison for 20 years until the Connecticut Innocence Project helped link DNA evidence found at the crime scene to another man suspected of other murders. In 2008, he was released.

Labriola said Roman’s exoneration was a “surreal” experience.

“I was delighted,” he said. “It’s amazing what happens when you live long enough.”

Earlier coverage from Connecticut begins at the link; an earlier column by Susan Campbell is also noted.

Death Row Inmate’s Best Lawyer Was Himself

That's the title of Adam Liptak's Sidebar column for the Tuesday edition of the New York Times.  It's deals with the Florida case of Albert Holland Jr.

Albert Holland Jr., a death row inmate in Florida, has no legal training and seems to be suffering from a mental illness — “perhaps a disorder involving paranoia or delusional thoughts,” a federal judge wrote recently.

But he turns out to be a pretty good lawyer. Two years ago, in allowing Mr. Holland a fresh chance to make his case after his court-appointed lawyer blew a crucial deadline, the Supreme Court praised Mr. Holland’s legal acumen. Indeed, Justice Stephen G. Breyer wrote, Mr. Holland had had a better understanding of the complicated time limits for challenging death sentences in federal court than his lawyer had.

Mr. Holland made good use of the opportunity the Supreme Court gave him. A couple of weeks ago, he won a decision granting him a new trial. In the process, he opened a window on the astoundingly spotty quality of court-appointed counsel in capital cases.

The lawyer whose work the justices had considered was the least of it; he had merely been unresponsive and incompetent. Mr. Holland’s earlier lawyers had failed him in much more colorful ways.

And:

These days, Mr. Holland is represented by Todd G. Scher, a Miami Beach lawyer who won in the Supreme Court and persuaded Judge Seitz to order a new trial. A spokesman for the Florida attorney general’s office said prosecutors would ask Judge Seitz to reconsider her ruling.

Mr. Scher said he did not know who would represent Mr. Holland at a retrial. For now, he said, what was clear was that a federal judge had found “a blatant Sixth Amendment violation.”

“It shows that he was right,” Mr. Scher said of his client. “He had concerns about his prior series of lawyer, and his concerns turned out to be valid.”

Related posts are in the indigent defense and ineffective assistance of counsel indexes.

Editorials on the Connecticut Repeal Votes

"More Evidence Against the Death Penalty" is the editorial in today's New York Times.

Connecticut is poised to become the 17th state without the death penalty and the fifth in five years to abolish it. Gov. Dannel Malloy is expected to sign the repeal bill approved by the Legislature in recent days.

Connecticut is part of a growing movement against capital punishment, with repeal measures now proposed in California, Florida, Georgia, Kansas, Kentucky and Washington. Other states like Ohio, Oregon and Pennsylvania are reviewing their death penalty laws.

This shift comes at a time when new analyses of capital punishment show gross injustice in its application and enormous costs in continuing to impose it. In Connecticut, a powerful, comprehensive study provided evidence that state death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

And:

Any careful evaluation leads to what the American Law Institute concluded after a review of decades of executions: the system cannot be fixed. It is practically impossible to rid the legal process of biases driven by race, class and politics. The growing number of states reconsidering this barbaric system is a welcome sign. Capital punishment, by overwhelming evidence, should be abolished throughout the United States.

"Death Penalty: Half-Step Toward Repeal," is the Hartford Courant editorial.

Connecticut is poised to become the 17th state to abolish the death penalty, as least going forward, now that the state House of Representatives has joined the Senate in approving repeal legislation. Gov.Dannel P. Malloywill soon sign it.

But this bill does not resolve the issue. The legislation only abolishes the death penalty prospectively; it won't affect the men already awaiting execution.

It thus puts the state in the untenable position of announcing that the death penalty is wrong and then pursuing more executions.

This half-measure shouldn't stand for long. If the death penalty is wrong, it's wrong. The General Assembly should find the fortitude to repeal it entirely.

And:

At least state leaders took a historic half-step by putting Connecticut partway in the civilized world. It needs to finish the work.

Today's Norwich Bulletin carries the editorial, "Death penalty repeal will be challenged."

We have long supported the repeal effort, and we understand and appreciate that there are many who disagree, and we respect their view. We believe the decision to repeal was the correct choice, but we see nothing to celebrate; no victory to be claimed.

And:

The decision has been made, but the debate is far from over. It remains unclear if the measure, as written, can withstand a legal challenge. We’re not sure it can, but that doesn’t change our opinion.

The repeal measure is written to be prospective, meaning that the new maximum penalty for murder with special circumstances — life in prison with no chance for parole — applies only to those cases moving forward. It is not meant to be retroactive and language in the law specifically states that it does not change the death sentences already handed down to the 11 men on Connecticut’s death row.

That prospective nature will certainly be challenged in the courts, adding yet another layer of judicial delays in carrying out any of those death sentences — sentences already bogged down in the judicial system because of the unworkable capital punishment law we’ve had on the books these past decades.

Hartford Courant columnist Susan Campbell writes, "For Connecticut Nun, Death Penalty Debate Is Personal."  It's a must-read.

At a Wednesday press conference — before the House of Representatives' late-night, 86-62 vote to repeal the state's death penalty — the speakers included clergy, a man wrongfully imprisoned, and a woman whose mother was murdered in 1996.

Standing nearby was the dandelion-haired, sensible-shoed 76-year-old Sister Mary Healy of West Hartford. For her, the discussion was personal.

And there she was, afterward, answering questions and explaining what brought her to Hartford. In 2000, Sister Mary's brother, a former priest, was enjoying his morning coffee at a Burger King in Wilkinsburg, Pa. It was his morning routine — Burger King, then off to tell stories on a school bus. Joey Healy was a grand storyteller, and the children loved him.

But before he could leave, a man came into the restaurant, fresh from killing two men and wounding two others, and shot Healy in the back of his head.

And:

Sister Mary sat through all of it in the gallery, with other women who are also survivors. Sometimes, she shook her head at the discussion. At one point, a representative said from the floor, "I want to talk about victims," and a woman sitting behind Sister Mary said quietly, "All right. We're right here." Sister Mary said she understood the passion of people who support capital punishment, and she understands survivors who support the death penalty. She's never wavered but it took her a while to get involved in the abolition movement. "I was doing my own grieving," she said.

She wrote a statement — her first attempt, she said, smiling — that included her thoughts about "the agony of complicated grief." She wrote about the closure that won't come from an execution. She wrote about the anguish of loss, the "outrageously expensive process" of capital punishment, and justice and pain.

She still grieves for "dear, dear Joey," but she felt the need to witness the discussion.

Earlier coverage of the Connecticut repeal votes begins at the link; more of today's coverage in the coming posts.

Time to End Death Penalty in Texas

That's the title of Bob Ray Sanders' latest column in the Fort Worth Star-Telegram.  It appeared in the Wednesday edition.  Here's the beginning of this must-read:

Two events last week -- one in the Connecticut Senate chamber, the other in a Dallas courtroom -- helped once again to focus attention on two of the nation's most glaring flaws: wrongful convictions and capital punishment.

In Dallas, three more men were exonerated for crimes they did not commit, bringing to 30 the total number of exonerations in Dallas County since 2001. One of the men had been sentenced to 99 years in prison for a 1994 violent purse snatching involving a 79-year-old woman.

About 1,600 miles away in Hartford, the Connecticut Senate voted 20-16 to repeal the death penalty based partly on the growing evidence of wrongful convictions and the possibility that an innocent person could be executed. The state's House of Representatives is likely to approve the measure soon, and the governor has vowed to sign it into law.

If the measure is enacted, Connecticut will join a growing number of states (the fifth in five years) to abolish capital punishment. California voters will weigh in on the subject in a ballot initiative in November.

After the Dallas defendants were officially cleared in court, both District Attorney Craig Watkins and District Judge Lena Levario declared that it was time to have a discussion about race and justice, The Dallas Morning News reported.

Actually we need a discussion about much more than that in America.

The latest Dallas case again revealed that prosecutors withheld evidence from the defense and that police, during their initial investigation, subjected the suspects to prejudicial identification tactics. These kinds of injustices cry out for discussion.

Related posts are in the abolition and column indexes.

A Survivor Speaks Out in Kansas

"A death penalty journey from murder to solace," is the title of Tim Carpenter's latest Topeka Capital-Journal Political Runoff column.  Here's the beginning:

Kristi Smith embraced adulthood by embarking on a powerful journey.

In a sense, her trip punctuated by anger, confusion and forgiveness continues to this day. The road she's traveled carries meaning for some Kansas legislators -- a clear minority -- struggling to make sense of the state's death penalty law.

Smith's quest wasn't a tour of the planet's most spectacular geography or a test of will against terrifying sports challenges.

The journey started with a 666-mile drive from Bloomington, Ind., to Wichita. It was March 1978. Smith was 18 years of age. Her mission was to locate her father, James Edwards. Sleuthing led to a relative's home.

Earlier coverage from Kansas begins at the link.

A View From Colorado

"The death penalty and the company we keep," is the title of Englewood Courier View columnist Norma Engelberg's latest. 

Some call the death penalty a crime deterrent, but statistics don’t bear this out.

According to the Federal Bureau of Investigation’s 2010 Unified Crime Report, the South accounts for 80 percent of executions and had the highest murder rate. The North, which has an execution rate of under 1 percent, had the lowest murder rate.

In “Death penalty not efficient,” an October 2009 article in the Dayton Daily News, Dayton Police Chief Richard Biehl is quoted as saying, “If it’s deterrence, it doesn’t seem to get the job done at all. If it’s justice, that’s another question.”

Other police chiefs interviewed for the article said the death penalty doesn’t deter murder because most murders are impulsive acts, and those that aren’t are planned by people who don’t think they’ll be caught.

And:

When it comes to countries that permit the death penalty, the United States keeps company with such developed countries as Japan, Taiwan and Singapore but also with the likes of Iran, Iraq, Libya, Pakistan, Saudi Arabia, Syria, Somalia and other hotbeds of social injustice. Are these examples of the company we want to keep? Not likely.

Related posts are in the column index.

Virginia Triggerman Bill Again Voted Down

WAVY-TV posts the AP report, "Triggerman bill killed by Senate panel," written by Larry O'Dell.

For the fifth year in a row, the Virginia General Assembly has rejected legislation to expand the state's death penalty law.

The Senate Courts of Justice Committee voted 8-6, with one abstention, on Wednesday to kill a proposal to allow the death penalty for accomplices who share a murderer's intent to kill. The bill would have revised Virginia's "triggerman rule," which in most cases allows capital punishment only for the person who does the actual killing.

Two weeks ago, the Senate's own version of the Republican-backed bill died in the courts committee on a 7-7 party-line vote, with one GOP senator abstaining because he accepts court appointments to represent capital murder defendants. Sen. Bill Stanley of Franklin County abstained again Wednesday. Republican Sen. Bryce Reeves of Fredericksburg switched sides and voted against the bill.

Reeves said after the committee meeting that he changed his vote "based on my faith," but he declined to elaborate.

Similar bills cleared both the House and the Senate in 2008 and 2009, but were vetoed by then-Gov. Tim Kaine, a Democrat, and supporters of the legislation could not muster the two-thirds majority needed in both chambers of the General Assembly to override the vetoes. The Senate courts committee rejected the bills in 2010 and 2011, when Democrats held the majority.

"A step in the right direction," is the title of Nelson Graves' News Virginian column.

It’s really amazing how the now Republican controlled Virginia General Assembly works. For every step the General Assembly takes forward it takes two backward. Look at recent examples of how it seems the conservative state senators and delegates have their priorities backwards.

A step forward – two weeks ago, the assembly’s senate failed to pass the “triggerman” bill. According to the Associated Press, “A Senate committee killed a bill to expand Virginia’s death penalty.” The bill failed after party line voting ended in a 7-7 tie. As it happened a Courts of Justice Committee Republican abstained because he accepts court appointments to represent defendants in capital murder cases.    

The AP report goes on – “Death penalty opponents say Virginia should not expand capital punishment because the commonwealth ranks behind only Texas in the number of state executions conducted in the United States.

“They also said there is too much danger of executing an innocent person because there is no DNA or fingerprint evidence that would prove a conspirator’s intent.” A similar bill is working its way through the House of Delegates but must clear the same Senate committee.

One step backward involves the sales of guns.

Earlier coverage of the Virginia death penalty expansion legislation begins at the link.

Bob Ray Sanders on the Morton Court of Inquiry

"Important move forward on holding both sides of court accountable," is the title of Bob Ray Sanders' column in today's Fort Worth Star-Telegram.  Here's the beginning:

What happened to Michael Morton should never happen to any human being anywhere, especially in a country where the word justice is righteously regarded as a major pillar of our democratic republic.

He should never have been charged with a crime, much less indicted, convicted and sentenced to life in prison.

Thanks be to God and an organization called the Innocence Project, Morton was officially exonerated in December on charges of killing his wife in 1986, but not before he had spent 25 years in the Texas prison system.

In a statement to the court after charges were formally dismissed, Morton said, "Thank God this wasn't a capital case."

Indeed, otherwise he would likely have been executed before we learned of his innocence.

But Morton's case, one of 289 DNA-related exonerations in the country and more than 40 in Texas in the last 10 years, shines a glaring light on a more chilling and sinister issue involving criminal prosecutions, particularly in the Lone Star State.

His lawyers contend that Morton wasn't just a victim of mistaken identity, but a casualty of prosecutorial misconduct. Specifically they allege that the prosecutor in the case, Ken Anderson, who was then the Williamson County district attorney, deliberately withheld evidence that pointed to Morton's innocence.

Earlier coverage of the court of inquiry ordered in the Morton exoneration begins at the link.

Arizona's Dirty Secret: Executions

That's the title of E.J. Montini's column in today's Arizona Republic.

The Arizona Republic's Michael Kiefer reported serious problems with how the DOC got the drugs used in executions. Also, proper background checks were not done on members of the execution team.

And the team member who was administering IVs was a DOC employee who got his training in the military, although he wasn't a licensed medical professional and he hadn't been in the service since 1996.

Meantime, the doctor who served as the team's leader (a doctor must be present at executions) called the court experience "very unpleasant" and, according to court records, said, "It's not really anything that I care to go through again."

We don't know if that means he quit. The Department of Corrections isn't saying, although there are executions scheduled for the coming months.

There is a lot of secrecy surrounding executions in Arizona and, again, I can't imagine why.

First, there is a state law that protects the privacy of the execution team. It reads in part: "The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure."

Why? Executions are legal. The public approves of them. Why should we not know who performs what Arizona deems to be a public service?

Besides, the law also declares that any professional who participates in an execution and happens to be licensed by a board -- for example, a physician -- cannot have his or her license suspended or revoked.

So, why not know who they are? Particularly since we are said to pay the leader of our "execution team" about $6,000 a day, with the average execution requiring two days of practice and one day to carry out the death sentence.

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

A Decision Too Big Not to Be Unanimous

That's the title of a Tampa Bay Times column by Sue Carlton, on the Florida capital sentencing scheme.

We elect judges to make the hard calls, none of them harder than whether a man deserves to die for his crimes.

And could there be a tougher decision than the one Hillsborough Circuit Judge Emmett Lamar Battles will soon make on the fate of convicted cop killer Humberto Delgado Jr.?

Sentencing someone to death should never be easy, but maybe it's clearer when the criminal is a predator, a serial killer, a vicious person driven by greed or meanness. It must also help when the same jurors who said guilty then vote unanimously for the ultimate punishment, since the judge must give their opinion great weight.

The vote to recommend the death penalty for Delgado was 8-4, not unanimous as is required in other states, and more on that in a minute. And his case is a complicated one.

And:

Other states require a unanimous jury vote for death. Ours has the dubious distinction of being the only one that allows a simple majority vote for what might be the biggest decision an average person will ever make.

A pending bill would require that vote to be 12-0. If it goes nowhere because your legislators worry about looking like coddlers of killers, it's too bad. Because decisions like the one before Judge Battles — you know, hard ones — are what we elect lawmakers for, too.

The column also makes it clear that Delgado suffers from mental illness.

Earlier coverage of the jury issue in Florida is at the link.  Alabama and Delaware also allow non-unanimous jury determinations in death penalty cases.

Related posts are in the jury and mental illness indexes.

The Random Horror of the Death Penalty

That's the title of an editorial column in the Sunday New York Times.  It's written by Lincoln Caplan, a member of the Times' Editorial Board who writes about the Supreme Court and legal issues.  A graphic accompanies the column.  It's a must-read.

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.

The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut — similar to those in other death-penalty states — is utterly arbitrary and discriminatory.

And:

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

More on the 1972 case of Furman v. Georgia, in which the Supreme Court ruled existing death penalty laws unconstitutional - as well as the 1976 case of Gregg v. Georgia, via Oyez.

The Morton Exoneration & Prosecutorial Misconduct

"Justice and Prosecutorial Misconduct," is the New York Times editorial from the December 29th issue.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

"Let Anderson's record be heard by a court," is the Austin American-Statesman editorial of December 27.

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

"Inquiry warranted in Morton case," is the Dallas Morning News editorial of December 23.

One thing is now cleared up for good in the Michael Morton murder case in Williamson County. He was proclaimed officially, unequivocally innocent this week.

One thing is far from being cleared up — whether the man who put him in prison for nearly 25 years, Ken Anderson, is a scheming, unethical district attorney. If there’s an explanation for why the defense never saw critical exculpatory evidence investigators collected before trial, for why the evidence stayed hidden for nearly all of the quarter-century that Morton was imprisoned, the state of Texas hasn’t gotten a straight answer. And it needs to.

Anderson, now a judge, should be held to account, just as Morton once had to defend himself against a far thinner dossier of evidence.

A request for a special court of inquiry in the Anderson matter is now before a state district judge, in a damning, 144-page report filed Monday by Morton’s attorneys. That special proceeding should be held to get direct answers from Anderson and weigh whether he should face charges.

"Stop the prosecutorial misconduct," is the title of an OpEd by Houston criminal defense attorney Robert Fickman in the Houston Chronicle of December 31.

It is past time for us to draw another line in the sand. Too many innocent men and women have had their liberty stolen by some puffed-up bureaucrat with a law degree. It's time to fight back and demand accountability.

What has become of the men who prosecuted Graves and Morton? What is their punishment for apparently fabricating and withholding evidence?

Have they been sent to jail, disbarred or hounded from our midst? No. Nothing has happened to them.

There is no punishment for them. Their lives go on unfettered. There is no accounting for their apparent raw inhumanity. None.

This needs to change. When a prosecutor willfully withholds exculpatory evidence in a murder case, he must be held to answer. When a prosecutor willfully fabricates evidence in a murder case, he must be held to account. Prosecutors who willfully falsify evidence to rob innocent men of their liberty must be held to answer under the law.

The next time the state Legislature meets we must demand accountability. The Legislature must enact stiff laws to punish those prosecutors who willfully break the law to rob men of their liberty. Nothing less is acceptable.

"Special holiday for lawyer John Raley, innocent client," is Patricia Kilday Hart's December 26th Houston Chronicle column.

Christmas, that celebration of miracles, new life and truth, can find expression in unlikely settings.

This year, for Houston attorney John Raley and his family, it arrived six days early in a nondescript Georgetown courtroom, when a state district judge stepped down from his imposing dais to declare the innocence of Michael Morton, a man who spent 25 years in prison wrongly accused of the murder of his wife, Christine.

And:

Raley's involvement in the case began when a mutual acquaintance in Houston's legal community suggested to Innocence Project attorney Nina Morrison that she solicit his help as a volunteer.

Morrison now laughs when she recalls the naiveté that Raley, a civil litigator with expertise in medical malpractice, brought to the criminal court arena: "He said, 'Of course the prosecutors will want to do DNA testing. Who wouldn't want to do DNA testing?' "

Morrison, jaded from years of fighting injustices that occur all too often in the criminal court system, knew better. Prosecutors do not like to admit mistakes.

Brandi Grissom wrote, "Murder Cases Put 'Junk Science' in the Spotlight," for the December 26 Texas edition of the New York Times.  It's also available at the Texas Tribune.  Here's an extended excerpt from this must-read:

Undigested bits of mushrooms and tomatoes from Christine Morton’s last meal — a celebratory birthday dinner she had with her husband — were still in her stomach when the medical examiner performed his autopsy in 1986.

Those remnants, the prosecutor told the jury during Michael Morton’s trial, “scientifically proved” that Mr. Morton had beaten his wife to death.

Twenty-five years later, DNA science revealed that someone else had actually killed Mrs. Morton and that her husband’s murder conviction and more than two decades in prison were a tragic mistake. His exoneration based on DNA evidence is the 45th in Texas.

Before he dismissed the wrongful murder charges against Mr. Morton last week, Judge Sid Harle recounted the faults the case exposed in the Texas justice system. Among them: the use of so-called junk science in the courtroom.

“The courts and the sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,” Mr. Harle said. “Your case illustrates the best and the worst of what can happen.”

Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can have life-or-death consequences.

“What passes for science in courtrooms is not always, in fact, science,” said Kathryn Kase, interim executive director of the Texas Defender Service, which represents death row inmates.

In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases that indicate it may also see a need to address the types of evidence that meet scientific standards.

In November, the state’s highest criminal court agreed to review the case of Megan Winfrey, who is serving a life sentence for murder. She was convicted largely on the testimony of a sheriff’s deputy who said his bloodhounds “alerted” to her scent on the murder victim’s clothing. The court has previously ruled that dog-scent evidence, used to convict Ms. Winfrey’s father for the same murder, was insufficient without corroborating evidence. The court acquitted her father on appeal.

This month, the court also agreed to review the cases of two men awaiting execution. Both men, convicted of murder, were sentenced to death after a psychologist who was an expert witness in several death penalty cases told jurors that they were mentally competent to face execution.

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

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

There is also more in the junk science index.

Two Views on the State of Capital Punishment

"Why the Death Penalty Is Slowly Dying," is the title of Adam Cohen's column at Time.  It's subtitled, "Little by little, governors, state legislatures, judges and juries are quietly deciding not to support capital punishment."

There has long been an idea about how the death penalty would end in the United States: the Supreme Court would one day hand down a sweeping ruling saying that it is unconstitutional in all cases. But that is not what is happening. Instead of top-down abolition, we seem to be getting it from the bottom up — governors, state legislatures, judges and juries quietly deciding not to support capital punishment.

Ground zero for this grassroots abolition movement is Illinois. In 2000, the state’s Republican governor imposed a moratorium on executions after several inmates on the state’s death row were found to be innocent. In early 2011, Illinois’ Democratic governor signed a bill passed by the state legislature repealing the state’s death penalty.

Illinois is part of small boomlet of repeals at the state level. New Jersey abolished its death penalty in 2007. New Mexico abolished its death penalty in 2009. There are now 16 states — or about one-third of the country — that have abolished capital punishment. Even in states that still have the death penalty, it has not been faring well. Last year, Oregon’s governor declared a moratorium on all executions in his state, saying that the system in place “fails to meet basic standards of justice.” Other governors are taking a more ad hoc approach. In September, Ohio Gov. John Kasich, a conservative Republican who once hosted a Fox News show, commuted the death penalty of a convicted killer, citing his youth when he committed his crime and his troubled upbringing.

There are several reasons we seem to be moving toward de facto abolition of the death penalty. A major one has been the growing number of inmates on death row who have been exonerated — 139 and counting since 1973 according to a list maintained by the Death Penalty Information Center. Even many people who support the capital punishment in theory balk when they are confronted with clear evidence that innocent people are being sentenced to death.

Another factor is costs. Money is tight these days, and more attention is being paid to just how expensive death penalty cases are. A 2008 study found that California was spending $137 million on capital cases — a sizeable outlay, particularly since it was not actually managing to put anyone to death.

In today's Los Angeles Times, Charles Johnson writes the OpEd, "California's death penalty: Unusual but not cruel," subtitled, "Capital punishment in California should be streamlined, not abolished."

With a drug cocktail that puts death row inmates to sleep, California's capital punishment can hardly be said to be cruel — but it is so unusual that death row inmates in the Golden State routinely die of old age or by suicide. When, or more likely if, justice comes, it doesn't come cheap. By some estimates, it costs $100,000 a year per prisoner to keep California's 718 inmates alive on death row, thanks in part to the endless, often frivolous appeals brought by inmates and death penalty opponents. If capital punishment is prohibitively expensive, it is because those professionally seeking to abolish it have made it so.

Even death penalty supporters, such as Chief Justice Tani Cantil-Sakauye of the California Supreme Court, have given up. "I don't think it is working," the newly appointed chief justice told The Times last week. California's death penalty requires "structural change, and we don't have the money." Still, Californians need a "merit-based discussion on its effectiveness and costs." But the chief justice ignored why that load continues to mount: death penalty opponents.

Death penalty foes have seized on the cost issue for their latest attempt at killing it off. Led by Natasha Minsker of the ACLU of Northern California, they are gathering signatures to put the so-called SAFE California initiative on the November 2012 ballot. Minsker's co-written report, "California's Death Penalty Is Dead," concedes that it is the appeals process that clogs the courts, noting that "death penalty trials cost up to 20 times more than trials for life imprisonment without the possibility of parole.... Taxpayers are legally required to pay for numerous appeals in death penalty cases, unlike cases involving life without possibility of parole, where the prisoner gets only one taxpayer-funded appeal."

Earlier coverage from California begins at the link.

And What Does It Mean?

Legal analyst Andrew Cohen writes, "The Looming Death of the Death Penalty," at the Atlantic.

The year-end report by the folks at the Death Penalty Information Center tell more and more Americans what they already know in their hearts to be true: The death penalty experiment is failing yet again. Undermined by overzealous prosecutors, a hobby-horse for incurious politicians, too often taken unseriously by jurors and witnesses, capital punishment in America has devolved since 1976 into a costly, inaccurate, racially biased, and unseemly proposition.

We clearly can't do it right, and more people are wondering whether we should continue doing it at all. The facts and figures of 2011 soberly reflect the nation's evolving perceptions of the problems inherent in the justice system's ultimate punishment. For decades, "death is different" has been the courtroom mantra of capital cases. But now, and with increasing clarity, "death is different" is becoming a discernible trend all across the country.

And:

The "evolving standard" of decency, the core element of the Supreme Court's Eighth Amendment jurisprudence, clearly "evolved" in 2011 against the nation's existing capital punishment protocols. Perhaps not enough to generate any sort of swift movement from the justices in Washington. But more than enough for men and women of good will to take notice. Although I can't be certain, I suspect that the Supreme Court is only two votes short of having a majority that would dramatically alter existing death penalty rules in favor of capital defendants -- or perhaps do away with capital punishment all together. Don't say I didn't warn you.

Andrew Cohen has written a number of excellent essays this year on the death penalty.  You can find them through StandDown's Google Search box in the right column.

The DPIC report, "The Death Penalty in 2011: Year End Report," is available in Adobe .pdf format.  News coverage of the report is in the preceding post.

Shame Should Fuel DNA Testing in Skinner Case

That's the title of O. Ricardo Pimentel's column from last Wednesday's San Antonio Express-News dealing with the Hank Skinner case.

Texas passed a law this year intended to remove the procedural barriers blocking death row inmates from testing DNA evidence that might prove their innocence.

If embarrassment wasn't a motivator in its passage, it should have been. Texas leads the nation in the number of wrongfully convicted folks freed because of DNA evidence.

How about we now give shame a chance?

And:

I have no doubt that some guilty-as-hell inmates simply want to stall, to breathe longer. But, for the cost of testing and housing an inmate for a bit longer, the state can remove doubt. And then can still execute if testing doesn't exonerate. Why wouldn't we want such certainty?

It is as if prosecutors fear “losing” or, worse, embarrassment. And those procedural barriers have carried more weight in this state's courts than the “interests of justice.”

Too bad there is no statute requiring shame as a factor.

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

The Oregon Moratorium - Additional Commentary & Coverage

 "Oregon's death penalty halt merciful and right," is the title of Mark Osler's post at CNN.  Mark Osler is a University of St. Thomas Law prof and a former federal prosecutor.  He's also the author of Jesus on Death Row, written while he taught at Baylor Law.

Oregon and other states have incorporated executive clemency into their systems of criminal law, drawing on the example laid out in the United States Constitution. The framers of the Constitution chose intentionally to give the executive that power, knowing full well that it would necessarily run contrary to popular will.

If you are angry with Kitzhaber for using that power, also direct your anger at Alexander Hamilton, who was a driving force behind the institution of executive clemency in the United States. Here is part of what Hamilton said about it in Federalist Paper 74: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. ... On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men."

And:

A second buried truth is revealed within the tortured way in which Kitzhaber announced his decision. During a prior term as governor, in 1997, he had allowed two executions, and it seems clear that he was deeply troubled by his role in those killings. How could he not be? It is a heavy responsibility to participate in a deliberative process that identifies a citizen to be put to death by the state. However, Kitzhaber is just the exposed tip of an iceberg of human emotion. Beneath him are thousands of others who have been forced by the institution of capital punishment to live with their role in an intentional death.

Among that group are lawyers, witnesses and judges, but perhaps most sympathetic of all are the jurors. They are plucked from their daily lives by the government and suddenly thrust into the most important role of all -- they must vote, unanimously, after deliberation, on whether someone will live or die. If they vote for execution, they must file back into that hushed, tense room, look that person in the eye and say in the most public of ways that they have chosen him to die.

I have known some of those jurors. Years later, even if they were convinced they were right, they revealed deep and dark emotions related to what they had done. At best, that service was seen as a difficult but worthwhile sacrifice, and at worst as a moment they too often relived while filled with doubt.

Kitzhaber is right to say that the capital process is fatally flawed. It is unfair to some defendants, yes. But a system that tries many, condemns some to die and executes few is also cruel and unusual to those who work within the process. It is primarily inflicting pain on victims' relatives who wait in limbo, on jurors who relive those discussions, on prosecutors whose hearts are hardened while their efforts are frustrated and on the budgets and reputations of the states that choose to go on with it anyway.

Diann Rust-Tierney posts, "Leadership," at Huffington Post.  She's executive director of the National Coalition to Abolish the Death Penalty."

Yesterday, Governor John Kitzhaber imposed a moratorium on executions in Oregon.

He did not, as much as I might like to see it, end the death penalty.

Faced with deciding whether to allow the execution of Gary Haugen on December 6th, he did the right thing. He was honest with the public about his doubts about Oregon's death penalty and he acted on his convictions.

The governor admitted he had tried it the other way. He had allowed the executions of two other men in 1996 and 1997. But those decisions haunted him and I submit, further tainted the outcome because he acted against his better judgment.

And:

In the best tradition of leadership, Governor Kitzhaber has articulated a vision of a criminal justice system that is fair, reliable and accountable. More importantly, in the tradition of great leaders he has empowered the people of Oregon to engage in a principled and reasoned dialogue about how best to reach that collective vision.

At the Oregonian, associate editor David Sarasohn writes, "On voluntary execution, Kitzhaber won't sign on."

John Kitzhaber has a perspective on capital punishment that nobody else around quite has. He's the only Oregon governor in 50 years -- and the only one alive -- with his signature on execution orders.

Signing them has stayed with him.

"They were the most agonizing and difficult decisions I have made as governor and I have revisited and questioned them over and over again during the past 14 years," he said Tuesday, explaining why he was refusing to approve the execution of Gary Haugen. "... And I simply cannot participate once again in something I believe to be morally wrong."

The prospect of being hanged, noted the 18th-century English writer Samuel Johnson, concentrates the mind wonderfully.

Apparently, so does the prospect of signing the order for the hanging.

It can be an agonizing responsibility for governors. Other politicians can pound their chests about the rightness of the death penalty, but there's just one name on the order.

And:

George Ryan, commuting every death sentence in Illinois, called the state's system "arbitrary and capricious." Oregon's system may not have the beaten confessions, incompetent defenses and racial sentencing patterns of Illinois -- or Texas, despite Austin's statehouse satisfaction -- but it's clearly arbitrary in its own very Oregon way.

And the arbitrariness may be inescapable.

"The basic question -- does the system accurately and consistently determine which defendants 'deserve' to die? -- cannot be answered in the affirmative," concluded Supreme Court Justice Harry Blackmun in 1994, abandoning any effort to provide judicial guidelines for executions. "From this day forward, I no longer shall tinker with the machinery of death."

And if you're John Kitzhaber, you won't sign your name to it.

Also at the Oregonian, columnist Steve Duin writes, "Oregon Gov. John Kitzhaber's vote is the only one that counts."

In two dramatic moves — curiously timed for Thanksgiving week — Gov. John Kitzhaber has firmly established the pecking order in Oregon politics.

And:

There’s only one sheriff in town. John Kitzhaber took last November’s election, for good reason, as the only vote he needed to act decisively on his prescription for what ails us.

He’s not asking for second opinions. His morality is law. And 1,142 days remain in his four-year term.

"Capital punishment slowly loses ground in US," is the AFP post by Chantal Valery.  It's datelined Washington, DC.

With a new moratorium on the death penalty in Oregon and a drop in the number of death sentences and executions, capital punishment is slowly losing ground in the United States.

Oregon governor John Fitzhaber announced on Tuesday that the northwestern state will halt executions at least until the end of his mandate, joining the camp of US states that have effectively shunned the death penalty.

"I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor," said Fitzhaber, who said he had come to the conclusion they were "morally wrong."

The governor suspended the last execution scheduled for this year, halting the count for the number of people put to death in the United States in 2011 at 43.

That total is slightly below that seen last year, and less than half the number of people executed each year in the 1990s. The number of death sentences also has fallen since then by nearly a third.

Only a dozen of the 50 US states conducted executions last year, most of them in the south.

"Slowly, state by state, there is this erosion of support for the death penalty," Richard Dieter, the director of the Death Penalty Information Center, told AFP.

In all, 16 states have abolished the death penalty or did not re-adopt it after it was restored by the US Supreme Court in 1976. They could be joined as early as next year not only by Oregon, but also by Maryland, Connecticut and California.

"Debate on death penalty revives," is a lengthy article by Alan Gustafson from the Sunday edition of the Salem Statesman Journal, in Oregon.

Questions and uncertainty about the long-term fate of Oregon's death penalty loom in the wake of Gov. John Kitzhaber's controversial decision, announced on Tuesday, to block the scheduled Dec. 6 execution of twice-convicted murderer Gary Haugen, and to ban all executions for the remainder of his term.

The Democratic governor said he has long regretted allowing Oregon's two most recent executions — those of serial killer Douglas Wright in 1996 and Salem double killer Harry Moore in 1997.

"I do not believe those executions made us safer," Kitzhaber said. "Certainly I don't believe they made us nobler as a society. And I simply cannot participate once again in something I believe to be morally wrong."

The Los Angeles Times reports, "Death row inmates' desire to die renews debate," by By Carol J. Williams.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

One of 718 prisoners on California's death row, Stanley has renewed an ethical debate among legal experts about whether a condemned prisoner who drops resistance to execution has been driven insane by his confinement or has accepted his fate and should be allowed a dignified end.

An Alameda County judge has ruled that Stanley is competent to decide his own legal matters. He is one of at least three condemned men on the nation's death rows volunteering to expedite their sentences. Gary Haugen, an Oregon man convicted of killing his former girlfriend's mother in 1980, and a fellow inmate in 2003, was ruled competent in September and faced a Dec. 6 death by lethal injection until Gov. John Kitzhaber just days ago banned further executions during his term. The third, Eric Robert, killed a guard at his South Dakota prison in April while serving an 80-year sentence for kidnapping. He has vowed to kill again until his death wish is granted.

Since the modern era of capital punishment began with the 1977 execution of Gary Gilmore in Utah, civil rights advocates and death penalty supporters have debated whether a state would run afoul of laws prohibiting execution of the mentally ill if they bow to a condemned inmate's suicidal impulse.

"Most of these people aren't dropping their appeals because they believe it's the punishment they deserve," said John Blume, a Cornell University law professor and author of "Killing the Willing," a 2005 study of those who abandon pursuit of reprieve.

And:

Sean O'Brien, a University of Missouri-Kansas City law professor who has worked with death row volunteers for 30 years, calls the pursuit of execution "suicide by court."

"Over the course of time there are many who say 'I'd rather die than remain here,' " O'Brien said. He notes that volunteers "can be very persuasive, even if they are seriously mentally ill. A person intent on killing himself can figure out how to get the job done. They know what to say."

Death penalty supporters see nothing wrong with that and urge states to honor the volunteers' wishes.

"Oregon Governor Bans The Death Penalty," by Greg Howard at Slate.

Kitzhaber said his "heart goes out" to the families of Haugen’s victims, but the three-term governor said he has long regretted allowing two men to be executed in 1996 and 1997. The two inmates, like Haugen, had also waived their appeals. And although Kitzhaber did not stop their executions, the governor was once an emergency room doctor, and said his opposition to the death penalty was connected to his oath as a physician to "do no harm." Kitzhaber said Oregon voters didn’t reinstate the death penalty in 1984 to only put to death inmates who volunteer.

"The reality is that, in Oregon, our death sentence is essentially an extremely expensive life prison term," Kitzhaber said. "Far more expensive than the terms of others who are sentenced to life in prison without parole, rather than to death row."

Earlier coverage of Oregon's moratorium begins with the preceding post.

From New Orleans

"DA Connick left a dirty legacy," is James Gill's column in the Sunday New Orleans Times-Picayune.

"Addressing the materiality prong of Brady" may sound vaguely risqué to the untutored ear, but nobody tittered at the U.S. Supreme Court last week when an assistant DA from New Orleans explained that was her plan.

If you are not a lawyer, perhaps you don't know who this Brady was and why his prong matters. If you are a lawyer, and used to work for Harry Connick when he was DA, you almost certainly don't. Brady was the Supreme Court case that required prosecutors to turn over "exculpatory" and "material" evidence to the defense.

Connick's office nevertheless railroaded merrily away, often in capital cases, and convictions are still being thrown out years later. After last week's hearing, it seems almost certain that Juan Smith will be the next inmate taken off death row. DA Leon Cannizzaro, in seeking to vindicate his discredited predecessor all the way to the Supreme Court, had nothing to gain but an execution. Smith will spend the rest of his life in prison regardless.

If pursuing the case would have been pointless in a jurisdiction without the death penalty, this one was pointless even here. Cannizzaro has just saddled the taxpayer with a large tab because he evidently feels obliged to defend the lawless stunts of the Connick era. That is a misconception; in theory, at least, a DA's duty is not to rack up the convictions but to ensure that justice is done and due process observed.

And:

Connick's administration probably led the country in violations of Brady and all his prongs, and it required considerable mental contortions for a bare majority of this court eight months ago to deny John Thompson the $14 million a jury had awarded him for the 14 years he spent on death row for a murder he didn't commit. Justices concluded in the Thompson case that there was no "pattern" of suppressing evidence, but here was Andrieu with further proof that they were detached from reality.

Brady violations will no doubt be with us so long as prosecutors have the discretion to determine what evidence should be turned over. When the rule obliges them to share whatever might undermine their own case, if they err, it will always be on the side of divulging too little. But divulging too much is not possible, because there is nothing that can help the defense to which it is not legally entitled. That's why enlightened prosecutors advocate an open-files policy. Our prosecutors, on the other hand, are still out to defend their outlaw predecessors even when, as Elena Kagan suggested to Andrieu, she would have been better off "confessing error" than getting hung up on a prong.

More on last week's oral argument in Smith v. Cain and last session's ruling in Connick v. Thompson, at the links. 

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

Adam Liptak's Latest Sidebar

The New York Times' Supreme Court correspondent's latest Sidebar column is, "Lifelong Death Sentences."

In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Fla. In September, when he was 61, Mr. Valle was put to death for his crime.

A couple of hours earlier, the Supreme Court had refused to stay his execution — with one dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle had spent on death row amounted to cruel and unusual punishment.

That line of reasoning strikes some supporters of the death penalty as perverse. “It is a very strange argument to say that a murderer can delay justice with protracted appeals for decades and then turn around and claim his own delay as a reason to escape his deserved punishment altogether,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation.

But Justice Breyer’s approach has historical support, and it is in line with international opinion.

“Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Justice Breyer wrote in another dissent on the same subject, this one in 1999. English law in the 18th century called for executions to take place on “the next day but one” after sentencing.

Foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment.

“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council, which is based in London and hears appeals from former British colonies, wrote in a 1993 ruling in favor of two inmates who had spent more than five years on death row in Jamaica, commuting their sentences to life in prison.

And, this excerpt begins with a quote from Justice Breyer's dissent:

A capital justice system that cannot be administered without long delays, he said, points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”

Here is what is clear: the average prisoner on death row has spent 13 years there, and his odds of growing old in prison are pretty good.

About 3,300 inmates are on death row in the United States. Last year, there were 46 executions.

According to a study published in 2004 in the Journal of Empirical Legal Studies, 5 percent of the 5,826 death sentences imposed from 1973 to 1995 were carried out in those years. By contrast, the study found, there was a 68 percent chance that death sentences in those years would be overturned by the courts.

One of the authors of that study was James S. Liebman, a law professor at Columbia. In a seminal 2000 article in The Columbia Law Review called “The Overproduction of Death,” Professor Liebman explained where the capital justice system has gone wrong: It produces too many death sentences at trial and then throws most of them out.

At trial, almost all of the incentives conspire to generate death sentences. Prosecutors and judges tend to be elected, and they reap political benefits from appearing tough on crime. Defense lawyers tend to be appointed, underpaid and overmatched. People with qualms about the death penalty are not allowed to serve on capital juries.

It is only on the back end — on appeal and in other postconviction proceedings — that the legal system, at great length and expense, starts to examine seriously whether particular death sentences were actually warranted.

Earlier coverage of Justice Breyer's dissent in Valle v. Florida begins at the link.

The next few posts will also have Supreme Court themes.

Continued Coverage of the Morton Investigation

"Morton lawyers ask judge to enforce subpoenas," is the title of Chuck Lindell's report from the Saturday edition of the Austin American-Statesman.

Lawyers for Michael Morton on Friday asked a district judge to enforce subpoenas ordering two former Williamson County prosecutors to testify under oath.

The former prosecutors, District Judge Ken Anderson and Round Rock lawyer Mike Davis, earlier this week filed motions seeking to quash the subpoenas, saying the court and Morton's lawyers lacked the authority to force their testimony.

Morton's lawyers responded Friday with their own motion arguing that the subpoenas were a legally proper attempt to pursue allegations that Anderson and Davis hid evidence that pointed to Morton's innocence before and after his 1987 murder trial.

The defense motion urged District Judge Sid Harle to allow the subpoenas to stand and, if necessary, issue a ruling ordering Anderson and Davis to testify in videotaped depositions.

Harle is expected to rule before Tuesday, when Davis is scheduled to be deposed. Anderson's deposition is scheduled for Wednesday.

And:

According to defense lawyers, the authority to subpoena Morton's prosecutors was outlined in a discovery agreement with the current district attorney, John Bradley. More importantly, the discovery agreement was attached to findings that Harle approved Oct. 3, making them part of a valid court order that Harle can — and should — enforce, the motion said.

Defense lawyer John Raley noted in the motion that Anderson and Davis could not be expected to know details about the discovery agreement because Harle ordered the details to be kept secret in a sealed court file.

"Morton Lawyers: Former DAs' Claims 'Wholly Deficient'," by Morgan Smith for the Texas Tribune.

Michael Morton's legal team responded today to claims from the exonerated man's original prosecutors that they cannot be forced to testify as part of an investigation into how Morton was wrongfully convicted of murdering his wife in 1986 and sent to prison until his release earlier this month.

And:

They have asked to question Mike Davis and Ken Anderson, the assistant district attorney and the district attorney of Williamson County at the time of the Morton trial. Both men filed motions to quash the depositions saying, among other things, that the court had no jurisdiction to compel their testimony.

Anderson is now a state district judge in Willliamson County and said in his filing that he has 43 matters pending on his judicial docket and a previously scheduled medical procedure on the day defense attorneys have requested his presence. 

Davis, now a lawyer in private practice, submitted a 17-page motion in which he objected hotly to the subpoena, writing that he "is now an innocent bystander in the crossfire" of political and media battles between attorneys with the Innocence Project, who along with Houston attorney John Raley, are representing Morton, and current Williamson County District Attorney John Bradley.

The Southwest edition of the New York Times carries, "After 23 Years, a Suspect Emerges and a Family’s Wounds Are Reopened," by Brandi Grissom.

Almost everything that Caitlin and Jesse Baker know about their mother, who was mysteriously murdered 23 years ago when they were small children, comes from memories shared by relatives and from fading family photos of the smiling, petite brunette.

Over the years, aunts and uncle told them stories about their protective and generous sister. Their father recalled the loving wife who seemed to live in her pink sweat suit. Their grandmother shared pictures of their mother’s favorite horse, Molly, and tattered newspaper clippings of articles she wrote as a student journalist.

But no one has been able to answer the question that has tormented the Baker children for years: Who entered their North Austin home on Jan. 13, 1988, and beat Debra Masters Baker to death?

“I’ve never really seen an investigation happen,” said Jesse Baker, now 31. “It’s sort of just been fits and spurts over the last 20 years.”

This month, in a courtroom in Williamson County, just north of Austin, the siblings learned of the most dramatic development in the case in two decades. DNA from hair retrieved at the scene of their mother’s murder — evidence that the Bakers did not know existed — matched a biological sample found near the home where another young wife and mother, Christine Morton, had been murdered in August 1986. Her husband, Michael Morton, had been convicted in her death in Williamson County and sentenced to life in prison, but was exonerated last week.

“Not only was there something in our case, but there was maybe another case,” Jesse said. “It was shocking.”

Brandi Grissom also writes, "Morton Prosecutor Says He is Victim of a Media War," for the Texas Tribune.

Mike Davis, one of the original prosecutors who worked on the murder case against Michael Morton in 1987, said in court filings today that he is a victim of a media and political war between the exonerated man's lawyers and Williamson County District Attorney John Bradley.

Davis filed a motion to quash Morton's lawyers' request to interview him about his role in the trial that led to Morton's wrongful conviction and nearly 25-year imprisonment for his wife's murder.

And:

He contends the lawyers have no legal authority to question him and that they are attempting to conduct an unauthorized investigation.

Davis wrote that his recollection of the trial was "very limited after 25 years." He said he had no memory of any conversation about Morton's son seeing the killer or of any issues relating to credit cards or checks.

But in the motion, Davis offered an apology to Morton for the years he spent behind bars for a crime he did not commit, and he offered to sit down with Morton and his lawyers informally and tell them everything he remembers about the case. "Movant's words can never give back to Michael Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all Movant has to offer at this late date," Davis wrote. In a letter to Morton's lawyer, Davis asked them to withdraw the subpoena.

Further, Davis argued that Morton's lawyers' investigation of prosecutorial misconduct in the case is moot because the Texas Court of Criminal Appeals has already exonerated him.

Finally for today's post, Houston Chronicle columnist Patricia Kilday Hart writes, "Apology just not enough for exonerated man," for the Houston Chronicle.

Morton's immediate nightmare may be over, but the courtroom drama rages on. Since his release, Morton's appellate attorneys have pressed for an investigation into how crucial evidence that pointed to their client's innocence was never shared with his original trial defense team - or his jury. This week, the State Bar of Texas, which has authority to discipline lawyers, announced it also would review the facts surrounding the Morton case.

What both Morton's lawyers and the State Bar want to know is this: Did Williamson County Judge Ken Anderson, the district attorney at the time of Morton's prosecution in 1987, or Georgetown attorney Mike Davis, who was Morton's prosecutor, intentionally withhold facts that demonstrated the former grocery store manager's innocence?

And:

Davis, the motion says, "would like to personally explain to Mr. Morton (his) deep sorrow and regret that Mr. Morton spent 25 years in prison for a crime he did not commit."

The former prosecutor goes on to say that he "can never give back to Mr. Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all (he) has to offer at this late date."

He also offers to "sit down with Mr. Morton and his counsel on an informal basis and tell him everything he remembers about this case."

Apologies carry a lot of healing power. But Morton, Raley said Thursday, wants something even larger: "Michael has asked us to try to do whatever we can to prevent this from happening to another innocent man."

That cannot be accomplished without a serious and thorough investigation into the entire Morton saga.

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

Alberta Phillips on the Morton Exoneration

Her column in today's Austin American-Statesman is, "Sadly, justice for Michael Morton 25 years too late."  Phillips is also a member of the Statesman editorial board.  It's a must-read

I had been in Austin about a year when Christine Morton was murdered in 1986. It was a crime that made women feel vulnerable.

And:

Evidence now shows us our nightmares were real: There was a monster.

The intruder did not know Christine Morton. He beat her to death, and he is suspected of fatally bludgeoning another woman in Travis County two years later. His DNA connects him to both crimes. He is not in custody.

Law enforcement officials and prosecutors now are on the spot to answer questions about why they ignored key clues. Why was evidence that might have cleared Michael Morton hidden from his lawyers and a jury? Was it incompetence or misconduct?

Among the evidence withheld is a transcript of a taped phone conversation between Sgt. Don Wood, the lead investigator, and Christine Morton's mother, Rita Kirkpatrick. In it, Kirkpatrick recounts her talk with 3-year-old Eric Morton, who said, "Mommy's crying because the monster's here. He hit Mommy. He broke the bed." In that same conversation, Eric told Kirkpatrick that his father was not home, just "Mommy and Eric was there."

Other evidence withheld included a document that detailed a telephone tip regarding a $20 check made out to Christine Morton but not cashed until nine days after her death. The document stated that the signature on the back of the check appeared to be a forgery.

There was another document that reported a tip that Morton's Visa card apparently had been recovered at a San Antonio store.

Last week, I asked Anderson, now a state district judge, if he had apologized to Michael Morton and when we could expect to hear from him on this case.

"I'm not going to be talking about the case," Anderson said. I could hear the emotion in his words: "There is an awful lot to say, but this is not the time to say it. If I had my way, I would have said something a month ago.

Earlier coverage of Michael Morton's exoneration begins at the link; today's news coverage, in the next post.

More Commentary on the Michael Morton Case

"This should be a bigger deal in Perry's campaign," is the title of O. Ricardo Pimentel's column in today's San Antonio Express-News.

The average stay on Texas' death row is about 10 years.

Michael Morton spent 25 years in prison on a life sentence for a murder he didn't commit — another release due to DNA evidence.

Ten years. Twenty-five years. The difference tells us that, had Morton been tried on capital murder charges, he'd be dead. Like Cameron Todd Willingham.

Willingham spent about 12 years on death row. He was executed in 2004 in the arson deaths of his three daughters though the forensic evidence was shown, even before his execution, to be highly flawed.

What-might-have-tragically-been is not lost on Morton. “I thank God this wasn't a capital case,” he said after his release last week.

And:

Any accountability coming for the DA's office? I doubt it. But the case does demonstrate why the state and its governor should be held accountable for the death penalty, from which there is no recovery if wrongful conviction occurs, as in the Willingham case.

It's instructive that Texas' nation-leading error rate fails to sway no-sleepless-nights Perry in his role as the guy with the power to spare lives, as he had the opportunity to do with Willingham.

It's interesting also that the law-and-order guy Perry appointed to the forensic commission is a guy who apparently cared so little for truth that he obstinately stood in the way of testing evidence that released an innocent man. Interesting, but not surprising.

Earlier coverage of the Michael Morton case, the Todd Willingham case, and the Texas Forensic Science Commission begins at the link.

Commentary on the Michael Morton Case

Let begin with editorials from the Austin American-Statesman and the Dallas Morning News.  The Statesman editorial is, "Morton free; now State Bar must act."

While Michael Morton begins rebuilding a life after almost 25 years in prison, his lawyers are moving forward on phase two of their quest for justice: looking into the investigators and prosecutors whose efforts sent him to prison for a murder he did not commit.

Angered by revelations of hidden evidence and apparently ignored leads that could have saved Morton from a wrongful conviction, defense lawyers have promised to conduct a vigorous investigation in the coming weeks.

Details of how that investigation will proceed remain hidden behind sealed court records, but presumably Morton's lawyers will seek to force onetime District Attorney Ken Anderson, now a district judge, and other former Williamson County officials to testify under oath in depositions.

Any new information unearthed would be added to allegations of official misconduct that are pending at the state's highest criminal court.

And:

The new DNA evidence prompted Williamson County District Attorney John Bradley to join Scheck in asking the courts to throw out Morton's conviction. That request is pending at the Texas Court of Criminal Appeals, which must approve all sentences that are vacated based on actual innocence.

But defense lawyers also informed the appeals court that in the unlikely event that Morton's request is denied, they will pursue allegations of official misconduct as a second path to attack his conviction.

To further develop those allegations, Morton's lawyers and Bradley agreed to allow "limited discovery," a legal process by which information is collected or exchanged. Details about the discovery plan are hidden in sealed files, except for one: If the appeals court agrees to throw out Morton's conviction, the time for discovery ends, and the allegations of misconduct "shall remain unresolved," court records show.

The appeals court has no deadline to issue its ruling but has acted on actual innocence requests as quickly as about one month, adding a sense of urgency to Morton's legal team.

"Those are serious matters," said Gerry Goldstein, one of the state's leading criminal defense lawyers whose San Antonio firm joined Morton's cause earlier this year. "We are pursuing those. I can't discuss exactly how, but you can trust us that these will be pursued vigorously."

Bradley, district attorney for the past 10 years, said he will have a role in the investigation, though he also declined to provide details, noting that the agreement is under seal.

Bradley said his association with Anderson — the two are friends who have co-written several legal books, including one still offered for sale — will not influence his actions.

Today's Dallas Morning News carries the editorial, "In murder exoneration, a revived debate."

The grotesque injustice suffered by Michael Morton of Williamson County was a travesty — nearly 25 years in prison for a murder he didn’t commit.

But, he pointed out after gaining his freedom based on DNA evidence, the travesty could have ended in tragedy.

“I thank God this wasn’t a capital case,” Morton said last week. “I only had life.”

That’s the essential argument for not adding to the list of 475 executions that have been carried out in Texas since 1982. Even well-meaning officials and juries too often have gotten it terribly wrong. The inevitable damage needs to be minimized, and substituting life in prison for the irrevocable death penalty is one fundamental way.

And:

Morton is the 45th Texas man whose conviction unraveled in the face of modern DNA tests, according to the New York-based Innocence Project. Morton’s case is one of a handful that involved murder, and it wasn’t prosecuted as a capital crime.

But Texas’ death row has not been immune from error. For the most recent, witness the fabricated case against Anthony Graves in the sensational murders of six in Burleson County, a conviction that unraveled last year because justice officials smelled the stench of injustice and bothered to find the source. It was in the office of a scheming former DA.

Morton left the courthouse last week with a judge’s apology ringing in his ears: “You do have my sympathies,” he said.

What a tragedy it would be if, some day, a judge were able to deliver those words only in memoriam.

Houston Chronicle columnist Patricia Kilday Hart writes, "Truth finally sets Texas inmate free."

For a man who'd spent more than 20 years locked up in a Texas prison, the offer must have been tantalizing: Admit your guilt, express remorse, and we'll set you free.

He'd grown gray since Williamson County prosecutors convinced a jury that he'd committed the monstrous murder of his wife, his college sweetheart. For two decades, he'd existed behind bars while his son, only 3 when both parents were stolen from him, became a man without him.

Michael Morton had been stripped of every single thing he held dear in this life - except the truth. Though it would cost him several more years in prison, no one, he decided, would make him tell a lie. He'd rot in prison rather than surrender that last fragile connection to his dignity.

Wednesday, finally cleared by DNA testing after 25 years in prison, Morton became a free man on his own terms: Exonerated.

And:

The district attorney at the time, Ken Anderson, is a now a Williamson County judge. Prosecutor Mike Davis is in private practice in Round Rock. Bradley, who was not involved with the original prosecution but fought Morton's right to obtain DNA testing, serves as district attorney.

This week, Bradley said he believed testing the bandana was unnecessary because law enforcement officials had not deemed it significant in their investigation. He admitted to me last week that judgment was wrong.

It was wrong, and not just because the evidence proved to be so illuminating. It was wrong because Bradley's duty as a prosecutor isn't to team up with law enforcement; it's to see that justice is done.

Last week, we saw the triumph of a man who believed the truth would set him free - as an unbroken man.

I hope, in the months ahead, we'll see the truly guilty held accountable, and find out how to prevent such a travesty of justice from occurring again.

Earlier coverage of Michael Morton's case begins at the link; the latest news coverage in the next post.

More on Rick Perry, Todd Willingham, and the Death Penalty

Time carries, "The Controversial Willingham Case: What Rick Perry Knew and When."  It's by Mark Benjamin.  Here's the opening:

On the day in 2004 that her first cousin, Cameron Todd Willingham, was scheduled to be executed in Texas, Patricia Cox had good reason to believe he was innocent. 

Willingham was convicted of murder for killing his three daughters in a late 1991 house fire after a prosecution based almost entirely on a forensic fire analysis performed by an assistant fire chief and a state deputy fire marshal in the days after the blaze. Two weeks before Willingham’s execution date in 2004, though, Cox had managed to get famed arson analyst Gerald Hurst to take a fresh look at the case.

Working pro bono, Hurst reviewed the evidence and drafted a study that devastated the original findings. Hurst’s conclusions were based on his own skills, but arson forensics had also become far more advanced and standardized in the previous 13 years. “A contemporary fire origin and cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence,” Hurst’s report began.

Hurst found that there was, in fact, no arson at all. Cox and Willingham’s attorney rushed the report to the office of Governor Rick Perry on Feb. 13, just four days before the scheduled execution, Cox says.

Little was known about why the Hurst report did not compel Perry to use his last-minute authority to delay Willingham’s execution for further review. The governor’s office has resisted legal efforts to pry loose Perry’s most sensitive deliberative documents on the Willingham execution. “The governor’s office has been a giant black hole of information,” said Walter Reaves, Willingham’s post-conviction attorney.

Cox’s frantic correspondence with the governor’s staff in the days and hours before Willingham’s death, as described by Cox and detailed by Perry’s office to TIME, provide a new window onto those events.

Michael Smerconish writes, "A death case Perry may come to regret," in his latest Philadelphia Inquirer column.

In every presidential campaign, a face in the crowd becomes a household name and makes a major impact on the race. Think Joe the Plumber or the Rev. Jeremiah Wright in 2008. Or Katherine Harris in 2000. Or Willie Horton in 1988.

Rick Perry hopes that Cameron Todd Willingham is not that person in 2012.

And:

Perry refused a stay of execution, and Willingham was executed Feb. 17, 2004. The debate, however, was only getting started.

Ten months later, the Chicago Tribune's Maurice Possley and Steve Mills highlighted flaws in the science used to convict Willingham. Three experts they consulted agreed with Hurst. In 2005, Texas established the state Forensic Science Commission to investigate further. The commission hired Dr. Craig L. Beyler to lead the probe, and he would come to agree with Hurst. Beyler lambasted the arson investigation that convicted Willingham, saying it was "characteristic of mystics or psychics." He was not alone.

"There is not a single leading fire scientist who has looked at this case and concluded that Willingham . . . set the fire or that there was any evidence that arson even took place," Grann told me. True, three professional reviews of the arson investigations, while not rendering opinions as to Willingham's guilt or innocence, found fault with the initial investigation.

Today's Louisville Courier-Journal carries the editorial, "A telling silence."

It’s true that anyone can act like a jackass at a public event.It’s also true that there’s been plenty of that behavior on display at each of three recent televised debates among Republican presidential candidates.

In the first, audience members clapped and whistled when Texas Gov. Rick Perry was asked about the 234 Death Row inmates who have been executed on his watch, “more than any other governor in modern times,” as the moderator noted.

And:

As offensive as the audience jeers have been — and American voters should be noting just what the Republicans’ right-wing base seems to be thinking these days — even more offensive is something that has accompanied each one of these episodes of extreme and alarming reaction: absolute silence from the would-be presidents and so-called leaders in the spotlight and all-miked up. Nothing. Nada. Zilch.

Where is their outrage — or even expressed concern — over the cheering for the death penalty, the applause for letting someone without health insurance die, the condemnation of a gay soldier in a war zone?

A few of the candidates took exception to the booing of the soldier — after the debate, and after they left the stage. Hardly profiles in courage and too little, too late.

Is this shame what the GOP stands for these days?

Earlier coverage of Rick Perry and Texas' application of capital punishment and Todd Willingham, at the links.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Much More Commentary on Troy Davis' execution

There continues to be a great deal of commentary on Troy Davis' execution.  Here are links, with some excerpts.  The editorials include:

Charlotte (NC) Observer - "Wilcoxson, Davis show need to end executions."

South Florida Sun-Sentinel - "Use caution in executions."

The Jackson (MS) Clarion-Ledger carries an editorial column, "Events call to rethink the death penalty," by David Hampton, the paper's Editorial Director.

The columns and syndicated columns include, Ross Douthat's, "Justice After Troy Davis," in the New York Times.

IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.

For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.

If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.

The Washington Post carries E.J.Dionne's, " Only conservatives can end the dp."

Every so often, one capital case makes a public spectacle of the American machinery of death. Last week, it was the controversy over Troy Davis, who was executed in Georgia after years of impassioned argument, organizing and litigation.

I honor those who worked so hard to save Davis’s life because they forced the nation to deal with the imperfections and, in some instances, brutalities of the criminal justice system.

Yet after all the tears are shed, the repeal of capital punishment is still a political question. Can the politics of this question change? The answer is plainly yes.

In the Miami Herald, Leonard Pitts writes, "On death penalty, confidence does not replace truth."

They killed Troy Davis Wednesday night.

He went to his death still proclaiming his innocence of the 1989 murder of a Savannah, Ga., police officer. Davis was convicted on “evidence” that boiled down to the testimony of nine eyewitnesses, seven of whom later recanted.

But Spencer Lawton, who originally prosecuted the case, would not want you to worry your head about that. Hours before Davis was put to death, Lawton was quoted by CNN as saying he had no doubts about the case and was confident Davis was the killer. How much do you want to bet the prosecutors of Fain, Brewer, Krone or any of those hundreds of others would have said the same thing, expressed the same confidence? Without that confidence, the whole house of cards comes tumbling down.

Meaning the death penalty, a flimsy edifice erected on the shaky premise that we always get it right, that human systems always work as designed, that witnesses make no mistakes, that science is never fallible, that cops never lie, that lawyers are never incompetent.

You have to believe that. You have to make yourself believe it. Otherwise, how do you sleep at night?

So of course a prosecutor speaks confidence. What else is he going to speak? Truth? Truth is too big, too dangerous, too damning. Truth asks a simple question: In what field of endeavor have we always gotten it right? And you know the answer to that.

"Troy Davis and blind justice, Texas style," by Mike Littwin in the Denver Post.

What makes the Troy Davis execution different from most executions is that you have heard so much about it.

Every so often, a death-penalty case makes the headlines. Not usually. Certainly not always. In some places — like Texas, where Rick Perry -- has presided over more than 200 executions -- it's almost routine.

In fact, on the same day Davis was executed in Georgia, Lawrence Brewer, an admitted white supremacist, was executed in Texas for his part in the infamous dragging death of James Byrd Jr., a black man.

There were at least two newsworthy items from Brewer's execution:

Several of Byrd's children were quoted as saying they didn't believe anything was accomplished by executing Brewer. "You can't fight murder with murder," Ross Byrd, a son, told Reuters. "Life in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

The Seattle Times' Lynne Varner writes "The death penalty: Are we getting it right?"  It's via the Sacramento Bee.

"Casey Anthony is found not guilty by reasonable doubt but Troy Davis is executed despite tremendous and widespread doubt," was one of the most salient tweets during an evening in which Troy Davis was the biggest topic on Twitter.

This execution wasn't justice. My sympathies to the family of officer Mark MacPhail, but this wasn't even the retribution they were seeking.

It is these kinds of miscarriages of justice that strengthen calls for abolishing the death penalty.

The Birmingham News has, "How many innocent people have to die for revenge?"  It's by Joey Kennedy.

How many innocent men and women is it worth killing to maintain a capital punishment system as flawed as Alabama's? One? Ten? How many? If it were your brother -- or you -- would the collateral damage be worth it to maintain a system that kills people, really for no other reason than revenge?

We don't need capital punishment to keep citizens safe. Life without parole does that. We don't need capital punishment as a deterrent. Study after study has shown the death penalty is no deterrent. Indeed, the states with the most aggressive capital punishment laws have the highest murder rates. States without the death penalty have the lowest murder rates.

Killing somebody might be sweet revenge, for a victim's family, for the angry public. But should the state, should the government, be in the revenge business? Should we? And this thing called "closure," is it really what we think it is? Can killing a horrible person who took a life in a heinous crime really give us closure? Does it bring back our loved one? No. We still have that hole in our hearts, in our souls, that will never be filled, no matter how much revenge we exact.

Oakland Tribune contributing columnist Byron Williams writes, "Davis case is an unfathomable constitutional tragedy," via the Contra Costa Times.

In the Wichita Falls Times Record News, Deanna Watson writes, "Even the smallest sliver of doubt should preclude harshest sentence."

The Los Angeles Daily News: "Friendly fire: Execution examination," by Jonathan Dobrer and Earl Ofari Hutchinson.

Maine's Lewiston Sun Journal: "Death penalty conundrum goes on," by Doug Rooks.

The Colombus Ledger-Enquirer of Georgia: "Davis case indicts death penalty," by Theresa El-Amin.

Earlier coverage of Troy Davis' execution begins at the link.

The Death Penalty in America

 Troy Davis' execution has brought a wave of re-evaluation of capital punishment.

Today's New York Times carries the editorial, "An Indefensible Punishment."

When the Supreme Court reinstituted the death penalty 35 years ago, it did so provisionally. Since then, it has sought to articulate legal standards for states to follow that would ensure the fair administration of capital punishment and avoid the arbitrariness and discrimination that had led it to strike down all state death penalty statutes in 1972.

As the unconscionable execution of Troy Davis in Georgia last week underscores, the court has failed because it is impossible to succeed at this task. The death penalty is grotesque and immoral and should be repealed.

The court’s 1976 framework for administering the death penalty, balancing aggravating factors like the cruelty of the crime against mitigating ones like the defendant’s lack of a prior criminal record, came from the American Law Institute, the nonpartisan group of judges, lawyers and law professors. In 2009, after a review of decades of executions, the group concluded that the system could not be fixed and abandoned trying.

And:

It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible.

Earlier coverage of the ALI action, begins at the link.

In the current issue of Newsweek, Scott Turow writes, "The Death of the Death Penalty."  Turow, a best-selling author and former federal prosecutor, served on the Illinois Governor's Commission on Capital Punishment.

The executions last week of Troy Davis in Georgia and Lawrence Russell Brewer in Texas, as well as the United States Supreme Court’s recent decisions to stay the execution of two other Texas inmates, Duane Buck and Cleve Foster, have pushed the death penalty back into the national spotlight. Davis’s case, which inspired protests around the world, and Brewer’s, whose crime earned him universal loathing, remind us of the intense and conflicting emotions that continue to surround the vexed issue of capital punishment.

The truth is that the death penalty in the U.S. is withering, albeit at a pace too slow for many. That may seem like a paradoxical observation coming after a week in which two men were put to death and two others still stand hours away from execution, but there is no doubting that momentum is moving against capital punishment.

In the past seven years, four states (New Jersey, New Mexico, Illinois, and New York) have abandoned it. Even in the 34 states where executions remain lawful, death sentences have grown rarer. There were 46 executions in the U.S. last year, compared with 85 a decade before. From 2000 to 2010, juries across the country imposed only half the number of death sentences they had in the 1990s.

And:

The Supreme Court’s weather eye on Texas is part of the court’s decade-long retooling of the death penalty. In 2002, it barred death sentences for the mentally retarded, and in 2005 for anyone under 18 at the time of the crime. As the years pass, and more and more states grow frustrated with the outsize costs and mistakes of the capital system, the court, I suspect, will find our evolving standards of decency prohibit capital punishment altogether. As Troy Davis or Cleve Foster or Duane Buck or even Lawrence Brewer would probably tell you, that day cannot come soon enough.

Greg Mitchell posts, "Think the Death Penalty Can't Be Abolished in USA? Here's How it Happened Before," at the Nation.  Mitchell's latest book is Dead Reckoning.  Here's the opening:

With polls showing that roughly six in ten Americans still support capital punishment in the U.S. (even with that number declining somewhat) it’s hard to make the case that the practice will be abolished any time soon. But I’ve argued otherwise, pointing to support dropping to under 50% when life without parole is listed as an option, and the continuing fall in the number of executions in America.

Still, most in the media find the end of executions in the U.S. a farfetched dream. I’d guess that most probably are not even aware that the death penalty was once banned in America – and not so long ago. And it happened rather suddenly and unexpectedly.

Earlier coverage of Troy Davis' execution begins at the link.  Related posts are in the abolition and capital punishment indexes.

Commentary on Troy Davis' Execution

Mark Osler posts, "Troy Davis and constitutional virtues," at CNN.  He's a professor of law at the University of St. Thomas Law School in Minnesota, and a former federal prosecutor.  Osler is also the author of Jesus on Death Row, published in 2009.

When I was a federal prosecutor, I had some sleepless nights. On a few occasions, it was after I had lost at trial; I would lie in bed and think of what I did wrong.

Other times, though, my sleepless hours came after I had won a trial or gotten what I wanted at sentencing. The haunting question was always the same: What if I was wrong?

Some might consider that admission a sign of weakness or a lack of resolve, but in retrospect, I see those nights as ones in which I was fully human. The cost of being wrong as a prosecutor is almost unthinkable. This is especially true in a capital case, such as the recent and tumultuous end game in the Troy Davis case in Georgia. Davis' final appeals to the state of Georgia were denied, despite the fact that seven of the nine witnesses against him had recanted their stories. His last hope, the U.S. Supreme Court, denied his application for a stay of execution on Wednesday night, sealing his fate. He was executed shortly after 11 p.m.

The meaningful cases in law almost always involve a clash of virtues. School prayer cases, for instance, sometimes balance two virtues reflected in the Constitution itself: The guarantee of free exercise of religion, and a bar on the establishment of a state religion.

And:

The first signer of that Constitution was George Washington, who then lived out the virtues of that Constitution as president. He was literally the commander-in-chief; when the Whiskey Rebellion arose in western Pennsylvania, he personally led the army to quell the rebels, astride a white horse. Just as importantly, living out the constitutional virtue of mercy, he pardoned those rebels who were sentenced to hang for treason.

The Troy Davis case shows us a truth: We have wandered too far from our own best virtues.

If we are to err, let it be on the side of deliberation and mercy, rather than the unsettling finality we have seen pursued by the state of Georgia. Should we choose those better virtues, we might all sleep better.

More on Osler's book, at the link.

Andrew Cohen posts, "The Death of Troy Davis," at the Atlantic.  Here's an extended excerpt:

In a perfect world, the execution of Troy Davis Wednesday night in Georgia would herald a new era in America's grim history with the death penalty. It would shake the criminal justice system out of its self-satisfied torpor and force government and the governed both to face the ugly truth about capital punishment in the United States in the twenty-first century. It would propel this question to the forefront both of the nation's political debate and the Supreme Court's docket: How many exceptions to the rule must we allow or tolerate, how many legitimate questions must linger beyond the death chamber, before we either fix the system or end the experiment?

When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed. Once our confidence in that credibility is shattered, as it should be now that Davis is gone, all that's left of the death penalty is state-sponsored retribution and the hangman's noose.  

In a perfect world, the haunting execution of Troy Davis would spawn vital reforms to the clemency and parole process in states like Georgia and Texas, where such proceedings routinely make a mockery of the idea of reasoned justice. It would light a fire under local prosecutors to ensure that witnesses in capital cases are not coerced by law enforcement officials. It would cause jurors to think twice about rushing to judgments. It would force a supine Congress to reevaluate its so-called "effective death penalty" statute, which neuters legitimate post-conviction appeals. And it would at long last shame state court judges to cast off the yoke of their campaign contributors, who push them to be "tough on crime" at the expense of fealty to the Bill of Rights.

Georgia says that it has given Davis more due process than any single man would have a right to expect. Up the state appellate ladder and down again. Up to the Supreme Court and back. Hearing upon hearing. Brief upon brief. At some point, Georgia says, there has to be finality in capital cases. At some point, the justice system has to accept the work of judges and juries and impose the sentence that was initially given. There is truth to all of this. And there is both rhyme and reason to many of the rules which govern appellate law and practice in capital cases. But those rules almost always place the state's interest in finality ahead of the condemned's interest in accuracy. "Enough is enough" is a great campaign slogan -- but it's hardly a worthy motto for a civilized nation's death penalty scheme.

"The Slow Death of Certainty.  Will the Troy Davis case be the one that finally turns America against the death penalty?" is the title of Dahlia Lithwick's post at Slate.

Whatever else it may come to mean, the execution of Troy Davis by the state of Georgia can stand for the proposition that the death penalty in America is finally dying. That's because the fight over the death penalty is now happening in public, at the grassroots, and with reason triumphing over emotion. In the debate over capital punishment, the desire for certainty is finally beginning to carry as much weight as the need for finality. Americans are asking not so much whether this particular prisoner should be killed as whether this whole capital system is fair.

And:

Advances in science and the empirical research on erroneous convictions are only going to create more doubt in the future. There is an almost unlimited supply of prosecutorial error and misconduct to draw on, and as it grows so will public uncertainty. And as the new media and social media broaden the debate about the death penalty, the folks who are leery of that uncertainty are ever more likely to be heard. America's conversation over capital punishment has long been weighted toward the interests of finality. But there is a growing space for reason and doubt and scientific certainty. It's hardly a surprise that prosecutors, courts, and clemency boards favor finality over certainty. That—after all—is the product they must show at the end of the day. But maybe the surprise, and the faint hope, of the massive outcry over the execution of Troy Davis, is that the rest of us have found a way to demand more from a system that has—for too long—only needed to be good enough.

At the Wall Street Journal Law blog, Nathan Koppel posts, "Will the Davis Execution Fuel Opposition to the Death Penalty?"

Let’s take one more moment to digest the execution last night of Troy Davis.

The level of interest that the case generated was striking — political figures, celebrities, and anti-death penalty opponents worldwide rallied to Davis’s defense, pleading in recent days for Georgia to spare his life.

The question now is whether the debate over the Davis execution will fuel a broader debate about the merits of the death penalty?

And:

This Salon article tackles the question of what the Davis case will mean for the broader death-penalty debate. In short, the piece expresses doubt that the Davis case will move the needle of public opinion about capital punishment. Gallup has found that support for the death penalty has remained consistent for the past decade, with Americans favoring it by a more than two-to-one margin, Salon reports, noting, however, that the level of death-penalty support has declined from the late 1980s and early 1990s, when it peaked at 80 percent.

“The reality is that we have seen other cases like Troy Davis’ before,” the Salon piece posits, “and it will probably take a lot more of them before Americans ever give up on the death penalty for good.”

Earlier coverage of Troy Davis' case and execution begins with the preceding post.

The Latest From Andrew Cohen

Andrew Cohen's latest post at the Atlantic examines common thread in the Duane Buck and Troy Davis cases.  "The Death Penalty: Why We Fight for Equal Justice," is a must-read.  Here's an exccerpt from the beginning:

Last week, Texas officials refused to halt the execution of Duane Edward Buck even though his 1997 capital murder trial was concededly tainted by unconstitutional racial testimony from an expert witness. The Supreme Court, which temporarily blocked the execution, will review Buck's case later this month. Meanwhile, on Wednesday, Georgia officials plan to execute convicted murderer Troy Davis, whose guilt is much more in doubt today than it was two decades ago when he was sentenced to die. Despite the public protests over Davis's fate, the justices in Washington will likely have to intervene there, too, if his life is to be spared while the "new" evidence is meaningfully re-examined. 

At a Republican presidential debate earlier this month, just the mere mention of Rick Perry's record execution rate -- he's overseen more executions than any governor in modern history -- generated a primal war-whoop from the partisan crowd. And as to the solemnity of the act itself, of the lethal injection execution protocol whereby the government prematurely ends a natural life in the name of the people? Evidently it has become so routine in the Lone Star State that the governor qua presidential candidate was fundraising in Jefferson County, Iowa on the night Buck was scheduled to die. I can't imagine a more solemn or important function for an elected official than presiding over an execution. But for Gov. Perry, it was just another day out of state on the campaign trail. He was available by cellphone.

The roiling uncertainty surrounding the Buck and Davis cases is a sad but timely reminder that the center has not held on capital punishment in America. The legal compact demanded by the United States Supreme Court when it reinstituted capital punishment as a sentencing option in 1976 has been broken, repeatedly, not by convicts, but by hundreds of overzealous administrators of the nation's justice systems. In Texas, Georgia, Florida, and in the other states which continue to push capital punishment, the "law" in capital cases now is mostly used as a weapon -- not as a shield for the individual against the might of government. It is not justice under law. And it is certainly not equal justice under the law. It is instead far too often a perversion of justice -- and of the Court's well-meant  precedent.

In the modern era of capital punishment -- since the Supreme Court's decision in Gregg v. Georgia -- three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.

With the Buck case coming back around later this month, with the Davis case right before us this week, with a leading presidential candidate making his capital punishment record a point of political pride, and with the Tea Party crowd cheering execution statistics, now seems as good a time as any to dig around a little at this strange legal confluence we've come to on the death penalty. Nearly 40 years after the Supreme Court first took away the death penalty, we may be closer than many people think to another turning point on capital punishment. We may be reaching the Icarus point -- and don't say I didn't warn you.

Next, a roundup of coverage of the Troy Davis case.  Earlier coverage of Duane Buck's case begins at the link.

More News & Commentary on Rick Perry & the Death Penalty

Today's San Antonio Express-News carries the column, "With Perry, it's nice to be dead sure," by O. Ricardo Pimentel.

Here's an extended excerpt:

“Nice to be sure.”
— Hondo Lane to Angie Lowe in the 1953 movie “Hondo.”

Of course, throughout the movie, what Lowe was sure of — no problems with the Apache — turned out to be patently false.

This comes to mind after comments — about the death penalty during last week's GOP debate — from the governor who fancies himself politics' answer to John Wayne. Here, however, Rick Perry was channeling Lowe, played by Geraldine Page.

“No, sir. I've never struggled with that at all,” was Perry's answer when moderator Brian Williams asked if the possibility that Texas has executed an innocent man among the record 234 under his watch caused him any sleepless nights.

Nice to be sure.

The problem: Lowe's cinematic certainty was based on what had been demonstrably true from observation. But Perry's certainty rests on proofs demonstrably untrue. In fact, his actions on the death penalty are very much like a Western shoot-'em-up, except with more gratuitous bloodshed.

There is simply no basis for such certainty. According to the Innocence Project, there have been 43 exonerations of Texas inmates because of DNA since 1989, more than any other state.

Of these 43, one was a death-row exoneration, though this person stayed in prison, convicted of other crimes. Other circumstances produced the release from death row of Ernest Ray Willis in 2004. And funny thing about that, the discredited arson science used to convict him was roughly the same as that used to convict — and, ultimately, execute — Cameron Todd Willingham that same year.

A 2003 study about Texas and the death penalty — titled “A State of Denial” — painted a picture of a state judicial system rife with problems.

There have been reforms, though not enough. They include, in this last legislative session, increasing inmate access to DNA evidence testing and steps toward uniform state witness identification procedures. But there are people in prison, including on death row, whose convictions predate such reforms. Their appeals for help deserve a governor who doesn't view his role as repriever of close-to-last resort as a rubber stamp for the courts.

"Celebrating death: Executions dirty U.S. rights record," is the title of Michael Stafford's column in the Opelousas Daily World in Louisiana.

Multiple studies have found evidence of discrimination based on the race of the victim, the race of the defendant, or even both, in capital sentencing. According to the Death Penalty Information Center, despite that fact that African Americans account for half of all homicide victims, since 1976, more than 75 percent of those sentenced to death in the United States were convicted of killing a Caucasian. Those receiving capital sentences are also typically poor and indigent — about 90 percent of the criminal defendants sentenced to death in the past thirty-five years could not afford to hire their own lawyers. And they are disproportionately Southern — from 1976 to 2010, the states of the former Confederacy accounted for more than 70 percent of all executions. If we include the Civil War "border states" and Oklahoma, it's more like 90 percent.

Today, the person most likely to be executed in America is a poor minority, represented by a public defender, convicted of killing a Caucasian in the South. It is impossible to separate this reality from its historic context.

Even worse, as George Will noted in 2000, the actual administration of capital sentencing in our judicial system "is a catalog of appalling miscarriages of justice, some of them nearly lethal. Their cumulative weight compels the conclusion that many innocent people are in prison, and innocent people have been executed."

As one would expect, many religious leaders and denominations have spoken out officially against capital punishment. Pope John Paul II, for example, repeatedly called for clemency and the abolition of the death penalty throughout his pontificate. And the Catholic Church is hardly alone in its opposition to capital punishment. A 2003 report by the Texas Baptist Christian Life Commission concluded that, "[i]n the final analysis, biblical teaching does not support capital punishment as it is practiced in contemporary society ... The practice of capital punishment in our nation and [Texas] is an affront to biblical justice, both in terms of its impact on the marginalized in society and in terms of simple fairness."

Austin NPR Affiliate KUT-FM posts, "Perry’s Death Penalty Record Likely Won’t Move Voters."  It's produced by Matt Largey.  Audio is available at the link.

On Thursday, the state of Texas is scheduled to execute its eleventh death row inmate this year.

Duane Buck was convicted of killing Debra Gardner and Kenneth Butler in 1995. Buck’s lawyers have asked for a new sentencing hearing, citing racially-biased testimony in his original sentencing.

The state’s Board of Pardons and Paroles rejected Buck’s request for a stay of execution earlier this week. Prosecutors have also declined to intervene.

The governor’s office is one of the only options left for delaying his execution.

Governor Rick Perry’s record on the death penalty has gotten some attention in the past few weeks, as he seeks the GOP presidential nomination.

And:

His stance on capital punishment is in line with the mainstream of voter opinion.

Polls in Texas routinely show strong support for the death penalty. Even national polls find a majority of voters back it. But for all that Texas law-and-order talk, it should be noted that generally, “Texas’ governor has very limited power with respect to capital punishment,” said Steve Hall, who was a staffer for the Texas attorney general in the 1980s. He now runs the group StandDown Texas, which advocates for a review of the state’s death penalty system.

Hall says while in other states governors sign execution warrants and set execution dates, “that’s not the case in Texas. The governor, at least in theory, has a very limited role of being able to hand out a single 30-day reprieve in scheduled executions,” Hall said.

That is a power Perry has only used twice in his 10-plus years in office.

Hall points out that decisions to seek the death penalty are made by local prosecutors and appeals are decided by elected judges.

The governor does appoint members of the Board of Pardons and Paroles, which makes recommendations on whether to commute death sentences and issue reprieves.

Austin Chronicle journalist Jordan Smith takes a lengthy examination of the record in, "Perry the Executioner."  It's a must-read.

In fact, commutations are exceedingly rare in Texas – virtually nonexistent. In Rick Perry's 11-year tenure, Foster's was the sole commutation based on a recommendation of the BPP – i.e., made without some court action (such as the U.S. Supreme Court's 2005 ruling that banned the execution of juvenile offenders). By the same token, independent commutation recommendations from the board have also been few and far between: Since 2001, the BPP has made three recommendations that a death sentence be commuted to life. In two of those cases, Perry rejected the recommendation and allowed the offender to be executed. In fact, Perry stands in the annals of history as the governor who has presided over the most executions during the modern era of the death penalty. Since 1976, when the death penalty was reinstated, Texas has executed 474 inmates; Perry has presided over 235 of those, far outpacing the second most killing governor, George W. Bush. "Texas still by far leads ... in executions with four times as many as any other state [in the U.S.]," says Richard Dieter, executive director of the D.C.-based Death Penalty Information Center. As executions nationally have declined over the last decade, Texas' death machine has not slowed, even as the number of new death sentences imposed by Texas juries (and sought by Texas prosecutors) has decreased. "The decline is a national phenomenon," says Dieter, "but Texas still leads the way" in executions.

As concerns about the death penalty have increased nationally – with 16 states now banning capital punishment and several more (Maryland, Montana, Colorado) likely to do so soon, says Dieter – Perry has not hinted that he has any concerns either about flaws within the machinery of justice or that tinkering with life and death might be a risky business. (He reiterated that conviction last week in a GOP presidential primary debate when the mention of his record of executions elicited cheers from the partisan crowd.) In fact, he's said the opposite. When Anthony Graves was freed last year after 18 years behind bars – including 12 on death row – for a crime that essentially no one, including Perry, now believes he committed, the governor said Graves' exoneration was an example of how well the Texas system works. "I think we have a justice system that is working, and [Graves is] a good example of .... You continue to find errors that were made and clear them up," Perry told reporters. "That's the good news for us, is that we are a place that continues to allow that to occur." With a backdrop of questions and concerns about capital punishment rising across the country, Perry's emergence as a tough-on-crime candidate for president raises its own serious question for voters: What does Perry's record in dealing with death say about the governor's approach to and feelings about capital punishment?

Earlier commentary of the record of Rick Perry and Texas' death penalty begins at the link.

More Commentary on the Duane Buck Case

Houston Chronicle columnist Patti Kilday Hart writes, "Where's justice in the execution process?"

Yet testimony about the "future dangerousness" of death penalty defendants still keeps the gears of Texas' execution machine turning. This week, Houstonian Duane Buck is scheduled for execution, partly based on testimony by Conroe psychologist Dr. Walter Quijano.

Ironically, Quijano was called to the witness stand by defense attorneys for Buck. Though he was found guilty of a deadly shooting rampage, his attorneys hoped to prove the tragedy, in which Buck's estranged girlfriend and another man were killed, was an act of rage not likely to be repeated.

But under cross-examination, Quijano acknowledged to prosecutors that certain factors are associated with violent crime. For instance, the prosecutor asked, "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

The jury concluded that Buck, a black man, would continue to be violent, and sentenced him to death.

And:

Last week, Buck's appellate attorneys filed a motion for clemency with the Texas Board of Pardons and Paroles, which could recommend that Gov. Rick Perry commute Buck's sentence to life without parole.

The case exposes structural flaws in our death penalty law. Testimony involving "junk science" regarding arson has been allowed, as demonstrated in the Cameron Todd Willingham case. There is mounting evidence that eyewitness testimony is unreliable.

Today's Chronicle also carries an OpEd by Thurgood Marshall School of Law prof Lupe Salinas, a former criminal district court judge in Harris County who assessed three death sentences. It's titled, "Race factors taint death case."

Our state could be on the verge of gaining the dubious distinction of executing a person based on the color of his skin. On Thursday, Texas is poised to execute Duane Buck unless the courts or state officials, including Gov. Rick Perry, intervene.

"The race factor, black … increases the future dangerousness for various complicated reasons." That is what a psychologist told a jury of 12 Texans at the capital murder trial of Buck. Such blatant racial prejudice may read like a relic of the past - but Buck faces execution in a matter of days, despite the racism that infected his case.

And:

Lawyers for Buck have asked Gov. Perry, the Harris County District Attorney's Office and the Office of the Attorney General of Texas to intervene.

All of these parties should act to ensure that an execution in Texas is not tainted by racism. It is important to guarantee that capital punishment is not applied in a discriminatory manner.

Attorney General Cornyn said it best: "The people of Texas want and deserve a system that affords the same fairness to everyone." Let us hope that our state officials and the courts act with these sentiments in mind and halt Duane Buck's execution.

Earlier coverage of Duane Buck's case begins at the link.

The Cost Factor in Oklahoma & Washington

"Capital punishment a costly option," is the title of Julie DelCour's Tulsa World column.

Forget all the arguments about the rightness or wrongness of capital punishment — if it is a powerful deterrent or morally repugnant, if its use is appropriate for worst-of-the-worst crimes.

Should death-penalty laws eventually go by the wayside here and elsewhere, their demise won’t be based on philosophical debates.

The issue will come down to the bottom line. In this era of fiscal peril, legislatures and voters must decide: Do they continue sustaining the nation’s most expensive punishment option — for a relatively small number of convicted murders — when other needs, including education, health care, infrastructure and public safety, go wanting?

Budget cutbacks in Oklahoma since 2008 have resulted in layoffs and the drastic slashing of services and programs.

And:

The death penalty is widely favored in Oklahoma, which has the executions to prove it. For many, keeping it as an option is crucial — whatever the cost. But is that an informed stance?

One need not put aside a philosophical beliefs about capital punishment to recognize the financial impracticality of the system.

Oklahoma leaders should undertake a study to determine the cost of the deathpenalty system here. Relying on those results, Oklahomans could make a more informed choice about whether to keep it. Ultimately, the question comes down to priorities.

The Seattle Times publishes the OpEd, "Death penalty — costly for families of victims too," by Karil S. Klingbeil.

A RECENT Seattle Times story educated us about the soaring financial costs of the death penalty ("Death penalty dilemma: Is soaring cost worth it?" page one, Aug, 15). I would like to address the other soaring cost, the emotional and psychological impact on family, friends and the community, which may be even greater than the financial costs.

Sept. 17 marks the 30th anniversary of my sister Candy Hemmig's murder. She had just celebrated her 33rd birthday at our family home in Olympia the previous Sunday. Candy and her co-worker, Twila Capron were gunned down in an Olympia bank by Mitchell Rupe, a man later dubbed "too fat to be hanged."

Candy left a husband and three children, ages 7, 13 and 16. Twila, too, had a husband and two young children. In an instant, there were two widowers and five children left motherless, not to mention the loss to mothers, fathers, sisters, brothers, aunts, uncles, grandparents and friends. Murder, like death, wracks the entire family including the community.

I have had 30 years to grieve and think through this horrible crime and major insult to our family. My sister Gail and I were enraged yet felt helpless, dependent on the criminal-justice system to deliver justice. Initially we desperately wanted the death penalty, which seemed to be the "worst punishment" that a murderer could receive. My emotion arose out of the terrible pain this man caused my entire family.

After Candy's service, it was all about Mitchell Rupe. It remained so through three trials. I attended all them and listened to the heinous accounts over and over. At the end of each trial, I was left with the same empty feeling. Time passes and begins to heal the wounds and emptiness, but there is no such thing as closure.

And:

The death penalty should be abolished. We should join the many countries that have long ago banned the death penalty. Capital punishment remains a barbaric remnant of uncivilized society. It does constitute a cruel and unusual punishment at odds with our culture and way of life in the United States. We should be putting the money we spend on the death penalty on the front end of crime and apply it toward prevention.

I don't believe calling for someone's death makes any of us a better person. I strongly believe working to end violence makes each of us a better person. Opposing the death penalty makes my philosophy of nonviolence a more powerful belief.

The emotional and financial costs are too great for this country to bear.

Related posts are in the cost and victims' issues indexes.

Bob Ray Sanders on the Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders writes, "Not a place for considering a person's race."

There is no question that Duane Edward Buck killed two people and wounded a third victim in a 1995 shooting in Houston.

But there are two nagging questions concerning Buck's case that we must ask:

1) Should he have received the death penalty for his crimes?

2) Would he have been sentenced to death had his race not become a major factor in the trial's punishment phase?

Buck, 48, is scheduled to be executed Sept. 15 in the Texas death chamber in Huntsville.

His is a unique case, one in which former Texas Attorney General John Cornyn (now a U.S. senator) supported a retrial on punishment because of the unfair testimony of a psychologist.

And:

Buck's lawyers also are asking that the Harris County district attorney's office and Texas Attorney General Greg Abbott intervene to have Buck's execution date withdrawn.

"This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles," said attorney Kate Black. "If Mr. Buck is executed, not only will Texas have violated the Constitution, it will have violated its citizens' basic moral values by permitting an execution to be carried out that is based on an individual's race."

Surely the state will not let this execution proceed.

Earlier coverage of the Duane Buck case begins at the link.  The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Rick Perry & the Death Penalty

With Texas Governor Rick Perry's entrance into the GOP field of Presidential candidates, there has been an initial look at his record in Texas on a number of issues, including capital punishment.  Let me highlight two new items and link to several others. 

First, at the New Republic, law professors Carol and Jordan Steiker have posted a must-read, "Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It.  She is at Harvard Law School; he is at the University of Texas School of Law.

When Rick Perry assumed the governorship in December, 2000, Texas was already the execution capital of the United States, responsible for more than a third of the nation’s executions since 1976. Now, almost eleven years later, the state has even further out-paced the rest of the country, with its share of executions growing to over 40 percent during Perry’s watch. Though it may be tempting—for either Perry’s supporters or his critics—to credit (or discredit) the governor with this super-sized slice of the pie chart of American executions, such an attribution would be in error. The sheer number of executions in Texas over the past decade reveals little about Perry the Governor, because the governor plays only a limited role in the state’s death penalty machinery. That said, Perry has injected himself into the issue of capital punishment in Texas on a number of key occasions—with regard to the appropriateness of capital punishment for offenders with mental retardation, as well as the procedures for investigating a possible wrongful conviction and execution—interventions that cast doubt on the transparency and judiciousness of his political leadership.

Though governors are often depicted as “presiding” over state executions, as a matter of both law and recent tradition, the Texas governor’s office plays a quite limited role in the administration of the death penalty. The decision to seek a death sentence is an entirely local prerogative—made by the district attorneys in Texas’s 254 counties (a majority of which have not sent anyone to death row since 1976). Thus, just as Governor Perry bears no responsibility for the size of the substantial death row he inherited, he cannot be credited or blamed for the significant decrease in capital sentencing over the past decade, a decrease mirrored in the rest of the country. The governor also plays no role in defending capital convictions in state and federal court (a job shared by the local district attorneys and the state attorney general—an independently-elected official). As convicted death-sentenced inmates exhaust their appeals, the decision to set execution dates remains entirely with the trial judge who presided over the conviction and sentence. Again, unlike in some other states, the governor has no role—formal or informal—in deciding whether to move a case (and a defendant) to the precipice of an execution.

And:

So what do Perry’s death penalty positions mean? His veto of a ban on executing the mentally retarded has had little effect, given the Supreme Court’s conclusion that “evolving standards of decency” require such a ban as a matter of constitutional law. But it does show Perry’s willingness to take an extreme position—and his unwillingness or inability to offer a thoughtful defense of that position. In addition, Perry’s abdication of executive review of executions in the nation’s death penalty epicenter is regrettable and frightening, given the very real possibility of the wrongful execution of the innocent. Cameron Todd Willingham’s case is emblematic of that possibility—and here, Perry’s lack of transparency, coupled with his willingness to use his political muscle to deep-six a reasonable investigation, speak the most loudly about what his death penalty politics say about his political leadership.

Brandi Grissom writes "Scrutinizing Perry’s Extensive Execution Record," for the New York Times.  It appears in a slightly expanded version as, "Under Perry, Executions Raise Questions," at the Texas Tribune.

As Gov. Rick Perry touts his tough-on-crime policies on the national political stage, the case of Cameron Todd Willingham will continue to be scrutinized. Scientists have raised questions about whether Mr. Willingham set the blaze that killed his three daughters and led to his 2004 execution.

But Mr. Willingham’s execution is not the only controversial one the governor has presided over. During nearly 11 years in office, Mr. Perry has overseen more than 230 executions — by far the most of any recent governor in the United States — and has rarely used his power to grant clemency. He has granted 31 death row commutations; most of those (28) were the result of a 2005 United States Supreme Court decision banning capital punishment for minors.

Lucy Nashed, a spokeswoman for the governor, said the governor could grant clemency only when the Texas Board of Pardons and Paroles — whose members Mr. Perry appoints — recommended that action. He has disagreed with the board only three times when it recommended clemency in death penalty cases, she said.

“The governor takes his clemency authority very seriously and considers the total facts of every case before making a decision,” she said. (Independent of the board, the governor may grant a one-time 30-day reprieve delaying an execution; Mr. Perry has issued one such reprieve.)

To his critics, his parsimonious use of clemency is notable because of continuing concerns about the ability of prisoners facing capital charges in Texas to retain quality legal representation, the execution of those who were minors when they committed their crimes, the ability of some prisoners to understand their punishment intellectually and the international ramifications of executing foreign nationals.

The Texas Tribune has compiled a database of all the executions in Texas under Mr. Perry’s leadership.

The articles examine cases involving mental incapacity (often referred to as mental retardation), juvenile offenders, accomplices, and cases involving quality of counsel.

Last week the Washington Post published, "Rick Perry holds the record on executions," by Robert Barnes.

He vetoed a bill that would have spared the mentally retarded, and sharply criticized a Supreme Court ruling that juveniles were not eligible for the death penalty. He has found during his tenure only one inmate on Texas’s crowded death row he thought should receive the lesser sentence of life in prison.

And Perry’s role in the 2004 execution of Cameron Todd Wil­lingham — who supporters said should have been at least temporarily spared when experts warned that faulty forensic science led to his conviction — is still the subject of investigation in Texas.

Perry has been unapologetic.

“If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas,” he wrote in his book lauding states’ rights, “Fed Up!”

It is a bipartisan tradition. The annual rate of executions was actually higher when George W. Bush was the state’s governor, and Democratic Gov. Ann Richards oversaw 50 executions during her four-year term without ever granting clemency.

“In the big picture, it is hard to see how Perry is much different from Bush or Richards,” said Jordan Steiker, co-director of the University of Texas Law School’s Capital Punishment Center.

That’s partly because Texans and their representatives give governors little room to slow down the process.

Decisions to seek the death penalty are made by local prosecutors. Unlike in some states, the governor does not sign death warrants or set execution dates. The state constitution prohibits the governor from calling a moratorium on executions and allows clemency only when the Board of Pardons and Paroles recommends it, which is rarely.

Texas’s relatively streamlined process for death penalty appeals is overseen by an elected court not known for reversals. Federal lawsuits go to the U.S. Court of Appeals for the 5th Circuit in New Orleans, which has the same reputation.

San Francisco Chronicle columnist Debra J. Saunders wrote, "Perry delivers on Texas death penalty," for the Sunday edition.

As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, the Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match - even if they wanted to."

Watch how pundits will try to turn that statistic into a political negative - and paint Perry as the governor with blood on his spurs - even though American voters overwhelmingly support the death penalty.

The temptation to tout Texas' status as the state with the most executions will prove too seductive. It won't matter that, as the Post story points out, Perry has overseen more executions than any other governor in modern history because his state is the second largest in the country, and he has served as governor of that state for nearly 11 years. Or that the late Democratic Gov. Ann Richards oversaw 50 executions during her one term - and unlike Perry, she never commuted a death sentence.

The irony here, points out Kent Scheidegger of the pro-death-penalty Criminal Justice Legal Foundation in Sacramento, is that Texas does not deserve its reputation as the most execution-prone state. Scheidegger crunched federal data from 1977 to 2009 and found that among the then-34 capital-punishment states, Texas falls below the mean of 16.5 death-penalty sentences per 1,000 murders. Delaware and Oklahoma have a higher rate when it comes to executions.

"Beyond Cameron Todd Willingham: Rick Perry’s Five Most Controversial Executions," by Kara Brandeisky is at the New Republic.  "Killer in Chief," by Bill Boyarsky is at TruthDig.

As the GOP primary election season unfolds, I'm sure we'll see more.

What Did They Really See?

That's the title of a New York Times editorial regarding the New Jersey Supreme Court ruling on eyewitness identification. It appeared in the Saturday edition.

In a landmark decision this week, the New Jersey Supreme Court set new guidelines for how courts and juries must assess eyewitness identification of criminal suspects. The laudable decision applies only in New Jersey but could have a national impact. It provides a thorough, science-based explanation of how eyewitness evidence can become tainted and offers a judicious template for the United States Supreme Court and other states to follow.

Eyewitness identification has been a subject of hundreds of studies over the last three decades, showing that memory and perception can be highly unreliable. Of the 273 people freed from prison with DNA evidence by The Innocence Project in cases reshaping this area of law, three out of four were convicted with false identifications.

In a unanimous opinion, Chief Justice Stuart Rabner noted that misidentification is the leading cause of wrongful convictions across the country. He wrote: “The changes outlined in this decision are significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

And:

The Supreme Court is scheduled to hear a major case about eyewitness identification in November, the first on this issue since that 1977 decision. The Roberts court should pay close attention to the well-grounded decision reached by the Rabner court in New Jersey.

Chicago Tribune columnist Steve Chapman writes, "Injustice, in plain sight."

It's a dismally familiar tale: a victim making an eyewitness identification that later turns out to be horribly mistaken. This type of mistake is universally known as the most common cause of false convictions. Yet law enforcement authorities, courts and juries continue to treat it as pure gold.

But change is on the way in New Jersey, where last week, the state Supreme Court ran out of patience with a method that puts so many innocents behind bars. It mandated new rules that will help to prevent errors while giving defendants more avenues to expose them.

The justices said that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications" and "juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear."

Like other evidence, it must be subject to careful scrutiny and challenge. The burden of disproof will still fall on the accused, but it will be easier to meet. Chances are good that, as a result, some blameless individuals will be spared.

It's the least the courts can do, and it's something the U.S. Supreme Court will get to consider this fall, hearing the first major case on the issue since 1977. Since then, the fallibility of eyewitness evidence has been confirmed by a mounting pile of data.

And:

We all know it's dangerous to believe everything we hear. The criminal justice system ought to acknowledge that the same holds for what we see.

Earlier coverage of this month's New Jersey Supreme Court ruling begins at the link.

On November 2, the U.S. Supreme Court will hear oral arguments in the case of Perry v. New Hampshire; earlier coverage, at the link.  The SCOTUS Blog case file contains all briefing.

Related posts are in the eyewitness identification index.  In the next post, more on eyewitness ID practices.

Lethal Injection Commentary from Montana

Sally Mauk writes, "Ron Waterman's fight against lethal injection in Montana," in a column for the Missoulian.  Mauk is news director at KUFM, Montana Public Radio.

Soon after the death penalty was reinstated in 1976, most states adopted lethal injection as the preferred method of execution - replacing electrocution, the gas chamber, the firing squad and hanging (Montana's original method). The intravenous injection of drugs was seen as more humane than those other methods - and with their ghastly instances of inmates catching fire and being decapitated, that's a point that was at least initially, hard to argue.

But what is currently being argued more and more, is whether lethal injection is humane enough not to cause the inmate being executed, undue pain and suffering.

Helena attorney Ron Waterman believes it is not. He represents the American Civil Liberties Union and death row inmate Ronald Smith, in a pending lawsuit asserting Montana's method of lethal injection is unconstitutional.

That method made news again recently when the state revised its execution protocol, in part because one of the three drugs it uses to execute someone - sodium thiopental - is no longer available.

And:

The state maintains its revised execution protocol assures all three drugs would be administered correctly and effectively - and meet all legal requirements for executions. The courts will decide if Waterman or the state is correct, and whatever that decision, the death penalty will likely continue in Montana until the Legislature abolishes it - whether or not the method of execution changes.

The Legislature gets closer to ending the death penalty with each session (an abolishment bill passed the Senate and was killed in the House this year), and Waterman believes Montana is ripe for doing away with it. Only three people have been executed in Montana since 1995.

"That tells me that the death penalty is not a part of the criminal justice system that we have to have," said Waterman, "because we use it so rarely."

Earlier lethal injection coverage from Montana begins at the link.

Commentary on Rhode Island - Federal Dispute

"Rhode Island v. America On Capital Punishment," is the title of commentary by Larry M. Elkin at Palisades Hudson.

The United Kingdom, Canada, Mexico, the Netherlands, Switzerland and South Africa all refuse to extradite individuals to the U.S. without assurances that the death penalty will not be sought. Rhode Island is trying to join them.

Gov. Lincoln Chafee refused a request to transfer murder suspect Jason Pleau to federal officials last month on the grounds that doing so would expose Pleau to the possibility of the death penalty. “Given Rhode Island’s longstanding opposition to the death penalty, I could not in good conscience voluntarily turn over any citizen of this state to another jurisdiction where a sentence of death could be imposed,” Chafee said in a statement. Rhode Island has not carried out an execution since 1845.

And:

A U.S. state’s refusal to cooperate with the federal government on the grounds that it cannot be trusted to respect basic human rights ought to be a wake-up call. By continuing to impose the death penalty, the federal government and the 34 states that retain capital punishment statutes distance themselves from both the remaining states and the majority of developed nations, putting themselves instead in the company of such countries as Iran, China, North Korea and Saudi Arabia.

The reason more than two-thirds of the world’s countries have abolished the death penalty in law or in practice ought to be clear. As former Supreme Court Justices William J. Brennan. Jr., and Thurgood Marshall concluded in the 1972 case of Furman v. Georgia, capital punishment is “cruel and unusual” in all applications, and as such is in violation of the Eight Amendment. As the higher homicide rates of states with capital punishment demonstrate, the death penalty does not serve as an effective deterrent. It exists only as a form of state-sanctioned vengeance. The true force of that vengeance, furthermore, falls not on those who have committed crimes but on the families of executed criminals, who suffer long after the accused has been buried.

Also:

States, such as Rhode Island, that have found capital punishment incompatible with justice are obliged to resist it, just as civilized nations around the world resist it. Chafee, it seems, understands that. I hope that, by sticking to his principles, he is able to score a victory for his state and for a 21st century concept of justice that most of the United States has yet to adopt.

Earlier coverage of the Rhode Island dispute begins at the link.

Commentary on AG's FSC Opinion Continues

Today's San Antonio Express-News carries the editorial, "AG ruling shouldn’t end Willingham case."

Gov. Rick Perry and his surrogates on the Texas Forensic Science Commission have done their best to stymie an investigation of the evidence that sent Cameron Todd Willingham to death row in 1992. The state of Texas executed Willingham in 2004 for the murder by arson of his three children.

Unfortunately, the Willingham case has became wrapped up in a larger debate about the death penalty, which in turn has implications for Perry’s political ambitions. Political considerations, however, should have no bearing on the outcome of this case.

And:

The Willingham case is not the only one in which the State Fire Marshal’s Office used flawed evidence to back up prosecutors. Yet even though the office has abandoned many of the procedures that produced that evidence, it has never acknowledged any error. It should.

Texans deserve to know whether bad evidence and the negligence or misconduct of arson investigators led to the flawed convictions of Willingham and others.

If the Texas Forensic Science Commission is unable to make a determination on this point, then a court of law or the Texas Legislature should.

Rick Casey's latest Houston Chronicle column is titled, "Law gets in way of science, again."  Here's an extended excerpt from the beginning of the column.

Attorney General Greg Abbott's recent official opinion on the law governing the Texas Forensic Science Commission has been widely described as "confusing."

It says, for example, that the commission can investigate the controversial arson findings in the case of Cameron Todd Willingham, the Corsicana man who was executed in 2004 for killing his three children by arson in 1991.

But there is one caveat, the attorney general says. The commission can't look at the evidence presented to the jury, since only evidence presented after the law's passage in 2005 is to be examined.

But if the attorney general's opinion is confusing, it's partly because the law as written is confusing.

In my (unofficial) opinion, the attorney general gave a reasonable interpretation. But so did Barbara Dean, the highly respected veteran attorney in his own office assigned to act as counsel for the commission. Until this year when the commission hired a staff counsel, she attended every meeting and advised members on their powers. She never raised an objection during their years-long Willingham investigation.

Then there was the reasonable opinion of Sen. Juan "Chuy" Hinojosa, D-McAllen, who has some standing as a lawyer and the co-author of the bill establishing the commission.

He told the Corsicana Sun in 2009: "There is no statute of limitations on anything the Forensic Science Commission does."

Hinojosa was aware that the law needed refining, as new laws often do. That's why this spring he pushed revisions that would have gone a long way toward cleaning up the law.

One of the main points of tension was whether the law's sole job was to make findings as to whether staffers of certified forensic labs were negligent in handling individual cases, or whether it was to critique any illegitimate use of forensic science in Texas criminal justice cases and work to improve the practice in the state.

The AG Opinon GA 866 is available in Adobe .pdf format.   Earlier coverage of the Attorney General's Opinion on the Forensic Science Commission's authority begins at the link.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Continued Florida Death Penalty Commentary

"The death penalty: A dead end in Florida," is the title of Mike Thomas' Orlando Sentinel column.

Executing inmates is getting harder, more expensive and a lot loonier in Florida.

But kill them we must, and so the follies continue.

This year state officials added a new drug to their lethal-injection cocktail.

The Florida Supreme Court blocked its use last month until a hearing could take place on whether it poses "substantial risk of serious harm" to the condemned.

Only in the American justice system would that make sense.

This put a damper on Gov. Rick Scott's first signed death warrant, although Attorney General Pam Bondi came to the rescue with an immediate appeal to the U.S. Supreme Court.

It's all part of the $51 million we spend a year on the death penalty. Given that we haven't had an execution in 16 months, that would put the per-capita cost of the next one at about $75 million.

Even if Bondi wins, the issue will be far from settled.

And:

On and on it goes.

We can't hang 'em and can't shoot 'em. We tried frying them but that stopped when flames shot out the heads of two inmates.

Injecting seemed to be the humane alternative until it took 34 minutes and two rounds of chemicals to kill an inmate in 2006. Turns out they missed his vein with the needle.

Officials claimed to have fixed that problem, and now this.

When do we get to whacking the condemned on the head with a big black frying pan?

The best solution remains life with prison food and without parole.

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

If Victim Can Forgive, Why Can't Texas?

That's the title of Patricia Kilday Hart's commentary in today's Houston Chronicle, and it starts our roundup of coverage of Rail Bhuiyan's campaign for a commutation of his attacker's death sentence.

Looking at Rais Bhuiyan today, you'd never guess that 10 years ago, a meth-fueled, hate-filled bigot with a twisted sense of patriotism and a fondness for swastika tattoos pointed a shotgun at his face from four feet away and fired.

Vengeance for 9/11, the shooter, Mark Stroman, would later brag to Dallas police.

Today, you'd never know that Stroman robbed Bhuiyan of the vision in his right eye. Or that, a decade after this senseless act, more than 35 shotgun pellets still lurk in Bhuiyan's face and head.

Bhuiyan, a handsome high-tech specialist for an online travel company, bears no outward scars from Stroman's rampage, which claimed the lives of two Middle-Eastern-looking store clerks in the Dallas area in the weeks after the Twin Towers in Manhattan fell. More remarkably, he apparently bears few inward wounds, either. He's a proud American (earning his citizenship last year), devoted son (he speaks often with his parents back in Bangladesh) and practicing Muslim.

What's his secret? How does a critically injured 26-year-old store clerk recover physically from a murderous rage, and not succumb emotionally to the racist hate that motivated it?

"Forgiveness," he says in his impeccable English.

It's a word that Bhuiyan used often in explaining why, last week, he appealed to a Travis County district court to stop the execution of Stroman, scheduled for Wednesday. In the lawsuit, he begs Gov. Rick Perry and the Board of Pardons and Paroles to reduce Stroman's death sentence — handed down by a Dallas County judge for the shooting death of Mesquite store clerk Vasudev Patel - to life without parole.

He says he learned the healing power of forgiveness from his parents, and his faith.

"All of the religions teach compassion, forgiveness, healing and tolerance," Bhuiyan said, citing in particular a verse from the biblical book of Matthew: "Blessed are the merciful, for they shall obtain mercy."

Rais Bhuiyan's website is World Without Hate.

Samian Quazi writes, "Spare Stroman for my identity," for the Daily Texan.

I felt struck by Bhuiyan’s story because it encapsulates the pain and idealism so familiar to Bengali immigrants in America. As a one year-old baby, I moved with my family to Texas from Bangladesh. While some Bengali immigrants from India and Bangladesh can comfortably settle into white-collar occupations, many others are relegated to dangerous, arduous jobs such as taxicab drivers and gas station clerks.

Like Bhuiyan, my father first encountered America with all of its hardships and few of its glories. We didn’t have a mattress at the time, so we slept on the carpet of our one-bedroom apartment. After working two full-time jobs (one hauling luggage in a hotel, the other cooking at a Denny’s in Houston,) Dad found a new job in a gas station. The hours were long and he often only came home for only three or four hours of sleep, but I don’t look back on those times with misery. I was too young then.

But one of my earliest memories was around age four, when I visited my father outside Memorial Hermann Hospital in 1993. That year, gunshot wounds from an armed robbery at Dad’s gas station had left him in a wheelchair for more than a month. His absence felt like a hollowed-out emptiness, a sense that what once was is what should be and that anything else was loneliness.

Standing outside that hospital with mom and dad in his wheelchair and hospital gown in a pitch-dark night during visiting hours, I felt complete. It felt reassuring to be next to the man with the same hair as me, the “big version” of myself. I was impatient for him to come home already, and I had no feeling (much less animosity) toward the robber. Being next to my father then was the only time in my life I felt hopelessly, undeniably secure.

At Huffington Post, Tanya Greene posts, "Rais Bhuiyan: Another Irrelevant Victim?"  She is Advocacy and Policy Counsel of the ACLU.

The State of Texas does not hesitate to use crime victims to pressure decision makers to convict, sentence to death and carry out executions. Why only then?

In this case, we have a survivor of a vicious attempted homicide who has forgiven his would-be killer and who wants to take advantage of the state's own offering of victim-offender services to exchange ideas and heal wounds. We have a survivor who firmly believes that the man the state seeks to execute is no longer the same man who shot him because he looks like the 9/11 hijackers.

Thus far, the State of Texas has not responded to Bhuiyan's requests to meet with Stroman. Contact Texas Gov. Rick Perry and urge him to honor Bhuiyan's request to grant clemency to Stroman to live out the rest of his life in prison, and to allow for continued victim-offender understanding and healing.

From Australia, human rights lawyer Elizabeth O'Shea writes the OpEd, "Unspeakable wrongness of death penalty," for the Age.

THE death penalty is not something Australians often turn their minds to, except when one of our citizens faces execution overseas. But over the last week, a story has been unfolding in the US and Europe that is worth telling. Mark Stroman is on death row in Texas after being found guilty of murder and is to be executed tomorrow. Stroman's story and that of his victim, Rais Bhuiyan, is one replete with both horror and hope. Above all, it exemplifies the dignity of forgiveness.

I have worked with prisoners on death row with Reprieve, an organisation opposed to the death penalty. I learnt two important things from my experience. The first is that many death row inmates have unbearably sad stories to tell. Most have a history of child abuse, neglect and poverty. The cycle of violence that they are born into repeats itself. The criminal justice system has plenty of time for victims, until they become perpetrators.

Earlier coverage begins at the link.

EJI Report on Judicial Override in Death Sentencing

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Commentary on the Leal Execution

"Case about protecting Americans," is the title of the editorial in today's Austin American-Statesman.

Our state and our governor missed an important opportunity last week to do something positive for our nation. It happened Thursday when Texas executed Humberto Leal, a 38-year-old Mexican who had lived in San Antonio since he was a toddler.

And:

In 2005, then-President George W. Bush concurred with an International Court of Justice decision that 51 Mexicans imprisoned in the U.S., including Leal, were entitled to new hearings on whether their consular rights had been denied. The Supreme Court overturned Bush's decision. After the Leal execution, Perry spokeswoman Katherine Cesinger said, "Texas is not bound by a foreign court's ruling."

We believe there is more at stake here than a foreign court's ruling.

A post-execution statement from five former U.S. diplomatic officials who urged postponement of the execution properly said likewise.

"The United States was founded on a commitment to the rule of law, and we believe it still stands for that commitment," they wrote.

"But (Thursday's) execution of a foreign national of our international partner Mexico violates a binding legal obligation and threatens to undermine the strength of our credibility in the eyes of our international partners."

We join these ex-officials in urging Congress to move expediently toward consideration and approval of the Leahy measure.

In today's Washington Post, syndicated columnist E.J. Dionne writes, "The death penalty and the costs of an obsession."

The unseemly love affair some American politicians have with the death penalty is bad for justice and bad for our country’s standing in the world. It inflicts a wholly unnecessary moral stain on a nation that rightly preaches the rule of law to everyone else.

Even more remarkable is the indifference that five Supreme Court justices have shown to such considerations.

And then there is Gov. Rick Perry of Texas, who insisted on pushing ahead last week with the execution of Humberto Leal, a Mexican national convicted of the rape and killing of a teenager. Even former president George W. Bush — who presided over 152 executions as Perry’s predecessor — had qualms about the case. Bush hasn’t gone soft. He’s legitimately worried about the costs of the United States thumbing its nose at the government of Mexico and the world.

President Obama, the International Court of Justice and the Mexican government all wanted a stay of execution. But Perry’s press secretary was unapologetic. “Texas,” said Katherine Cesinger, “is not bound by a foreign court’s ruling.”

Imagine that an American life was at stake and a press secretary said that Iran — or Russia or Saudi Arabia or China — did not feel “bound by a foreign court’s ruling.”

And:

Those who oppose the death penalty or think it’s imposed too frequently don’t disagree that terrible crimes deserve severe punishment. But this is not about absolving criminals. It’s about our nation’s core values and how the rest of the world sees us. In this instance, it’s also about protecting the rights of Americans overseas.

When it comes to capital punishment, can’t we find it in ourselves as a nation to let our reason check our passions, even when those passions are entirely understandable?

Jay Jochnowitz, Editorial page editor of New York's Albany Times Union posts, "Defying treaty, Texas executes Mexican national."  The Times Union is a sister paper of the Houston Chronicle and San Antonio Express-News; all Hearst-owned.

Should states respect international treaties that already bind the federal government when it comes to foreigners’ legal rights? Or, in the absence of U.S. law to the contrary, should they execute foreign nationals regardless of what the treaties say?

Those were the underlying questions before Texas Gov. Rick Perry, a potential Republican contender for president, in the court battle over the Humberto Leal Garcia, 38, who was executed in Texas on Thursday. Perry went ahead with the execution over the protest of U.S. diplomats, the military, the Obama administration and at least one member of Congress.

Although Leal is dead, there are 50 or so other cases like his pending, so the issue isn’t going away.

And:

What do you think? Does this all fall on Congress for not passing the law requiring states to review these cases? Did Perry do the right thing? Just because he could have, does it mean he should have? Did presidential politics (Perry is talked about for the GOP nomination but hasn’t declared) play a part in this, or is this simply consistent with Perry’s and Texas’ record on the death penalty? (There have been 232 executions on Perry’s watch. Here’s a year-by-year breakdown on executions in Texas; he took office on Dec. 21, 2000.)

Legal analyst Andrew Cohen has posted, "Humberto Leal Garcia: The Supreme Court Makes a Bad Situation Worse," at the Atlantic.

When the five conservative justices of the United States Supreme Court turned their backs Thursday afternoon on Mexican national Humberto Leal Garcia, they weren't just ensuring that the convicted murderer would then be executed by Texas prison officials. They were also abdicating their solemn judicial responsibility not to make a bad situation worse. It was one of the most ignoble acts by the Court in recent memory; a reminder, as if we needed one, of the hostility the current majority often expresses toward the workings of the real world.     

In a brief, unsigned opinion that was long on sterile formalism and short on sense and justice, the Court rejected an appeal to delay Leal's execution for a few more months pending the passage of federal legislation designed to formalize the rights of foreign nationals -- including Americans abroad -- to be able to contact their consular officials if they are detained. About an hour after the Supreme Court denied his final request, Leal was executed. He said he was sorry and reportedly shouted "Viva Mexico" before the lethal injections were administered to him in the state's death chamber in Huntsville, Texas.

And:

There has been a great deal of analysis and commentary on the Leal case -- some of it better than the rest -- but at heart, Thursday's dramatic events are simple to explain. The Court's majority went out of its way to allow Texas to proceed with an execution, even though the state would have been only minimally harmed in waiting a few more months (or even a few more years) to proceed. The Court did so despite broad concerns, expressed by officials in both of the other two branches of government, that the Leal's execution now would harm the interests of the United States abroad. And, by doing so, the Court compounded rather than solved an important legal problem raised by the Leal case.

Just because Congress has consistently failed to do the right thing here doesn't mean that the Court had to follow its lead. The result is a big, black mark on the face American justice now shows to the rest of the world.

Earlier coverage of the Leal case begins at the link.  There will be another post this evening with more post-execution developments.

Attention Focusing on Humberto Leal Case

"Texas Is Pressed to Spare Mexican Citizen on Death Row," is the title of Adam Liptak's latest Sidebar column in the New York Times.  It will appear in tomorrow's print edition; it's just been posted to the NYT site.

Texas is planning to execute Humberto Leal Garcia Jr. next week. His case is in many ways unexceptional: ghastly crime, substantial but problematic evidence, inept defense lawyer.

In another sense, though, Mr. Leal’s case is different from those of the six men Texas has already put to death this year.

He is a citizen of Mexico. After his arrest, he was denied his rights under the Vienna Convention to consult Mexican consular officials.

Had his government been allowed to come to his aid, Mr. Leal’s lawyers say, he might still have been convicted. But they say that legal help from the Mexican government would almost certainly have kept him off death row.

Former judges, law enforcement officials, military leaders and diplomats have lined up on Mr. Leal’s side. Most take no position on Mr. Leal’s guilt or on the death penalty. Their argument is more practical.

“If we do not comply with our obligations under the Vienna Convention on Consular Relations and the U.N. Charter,” said John B. Bellinger III, who was the State Department’s top lawyer in the Bush administration, “we put at risk Americans, including Texans, who travel and may be arrested overseas. It is surprising that Texas does not recognize the risks it may be creating for its own citizens.”

True, Texas provided Mr. Leal with a lawyer. But the convention requires that arrested foreigners also be told of their right to speak with consular officials and put in contact with them “without delay.”

Billy Hayes, whose ordeal in a Turkish prison was the subject of the movie “Midnight Express,” wrote a letter to Gov. Rick Perry this month urging him to grant a reprieve to Mr. Leal. In an interview last week, Mr. Hayes said he could not have imagined negotiating the Turkish legal system without the emotional support and logistical help that American diplomats provided.

“It’s a different country,” he said, “different language, different law and different rules.”

Mr. Leal, by contrast, did not learn of his rights until two years after his conviction, and even then not from American authorities but from a fellow inmate.

Journalist Euna Lee writes the OpEd, "Consular access: A two-way street on a crucial right," for the Washington Post.  She's the author of author of The World is Bigger Now: An American Journalist’s Release from Captivity in North Korea.

In 2009, while on assignment for Current TV, my colleague Laura Ling and I were arrested by North Korean soldiers for crossing the frozen Tumen River, which separates the Republic of China and North Korea. We were imprisoned and isolated from one another for 4¹/₂ months. We were repeatedly interrogated, eventually put on trial and sentenced to 12 years’ hard labor. It was only through the extraordinary efforts of the State Department and former president Bill Clinton that we were pardoned and allowed to return home. 

It is difficult to describe the fear that comes with being arrested and detained in a foreign country. The sense of darkness in that first week of North Korean captivity was unbearable. My biggest fear was nobody knowing where I was or what had happened to me. The strained relations between the United States and North Korea only increased my despair.

In the middle of the second week, though, I was handed a lifeline: a meeting with the Swedish ambassador, who represented U.S. interests and pointed out to North Korea its responsibilities under the Vienna Convention on Consular Relations. His hard work yielded a meeting no longer than 10 minutes, but the significance is hard to express. I can only mention the sense of security I now had — that someone outside of North Korea was monitoring my case. The prompt consular access, I believe, protected me from any physical mistreatment by my captors. I was allowed to meet with the ambassador three more times. The meetings were my only communication with the U.S. government — the only way for me to ask for help and to deliver messages to my family. I know the importance of what the Vienna Convention provides. 

And:

The United States has always been in the forefront of the fight for human rights. People look to us to be a watchdog for human rights violations around the globe. We ask the world to treat our citizens with respect when they are detained in other countries, including honoring their right to consular access. It is a two-way street. The United States must lead by example in honoring consular treaty obligations and in providing a remedy when that right is violated. If Congress does not act swiftly, other countries will be encouraged to violate the consular rights of U.S. citizens traveling abroad. I know firsthand that this is a risk we cannot take.

Today's National Law Journal carries commentary by Lori F. Damrosch,, "Time to comply with the Vienna Convention."  She is the Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School.

U.S. citizens travel, study and work abroad in vast numbers. Every year, thousands of them are detained and sometimes jailed, not always under circumstances comporting with U.S. views of due process. The bulwark of their protection is the Vienna Convention on Consular Relations, which binds the United States and 172 other countries to notify nationals of treaty partners who are arrested or detained of their right to contact the consulate of their country.

The Vienna Convention has been the supreme law of the land since 1969, when it was unanimously approved by the Senate and brought into force by President Richard Nixon. The Senate gave advice and consent on the basis that the treaty would be self-executing — that is, that no implementing legislation would be needed.

This premise turned out to be incorrect. In Medellin v. Texas (2008), the U.S. Supreme Court held that an international judgment based on the Vienna Convention could not be given effect as directly applicable federal law. Rather, Congress would have to adopt the necessary legislation to enable the United States to comply with its treaty obligations.

It is now urgent for Congress to enact such legislation. Since 2004, when Mexico obtained a ruling from the International Court of Justice (ICJ) on remedies for U.S. treaty violations affecting 51 Mexican nationals on death row in U.S. states (Avena and Other Mexican Nationals), the United States has been under a binding obligation to afford a judicial remedy to those individuals.

One of them, Humberto Leal, is scheduled to be executed by the state of Texas on July 7.

And:

Under Article 36 of the Vienna Con­vention, a foreign national who is arrested or detained for any reason whatsoever must be notified "without delay" of his right to communicate with the consular post of his country. The 51 Mexican nationals covered by the Avena judgment were not given any such notice and thus Mexico was unable to give them consular services in their trials on capital charges.

Earlier coverage of the Leal case and the federal legislation pending in the U.S. Senate begins at the link.

More information is at the Humberto Leal website.

The Haunting of Rick Perry

That's the title of Ta-Nehisi Coates' OpEd column in today's New York Times.

Should Gov. Rick Perry of Texas enter the 2012 presidential race, he would enjoy a strange and remarkable escort — the irrepressible ghost of Cameron Todd Willingham.

Charged with the horrific crime of intentionally torching his home and leaving his three daughters to the blaze, Willingham’s 1991 conviction and 2004 execution were secured by two great bugbears of America’s criminal justice system: pseudoscientific forensics and the compromised testimony of a jailhouse snitch.

The fire investigators who fingered Willingham relied on the kind of sorcery that fire scientists have tried for the past 20 years to chase from the field. The informant, for his part, claimed that Willingham had inexplicably blurted out a confession, then recanted his tale. Then, in the words of New Yorker reporter David Grann, he “recanted his recantation.” When Grann tracked him down in 2009, he told him that “it’s very possible I misunderstood” what Willingham said, pausing to add “the statute of limitations has run out on perjury, hasn’t it?”

Perry was unswayed by pleas from Willingham’s lawyers and rejected their request for a 30-day reprieve. This registers as a rather mild atrocity in Texas, a state that does not so much tinker with the machinery of death as it gleefully fumbles at the controls.

In 2000, an investigation by The Chicago Tribune found that almost one-third of court-appointed defense lawyers in capital cases in Texas had, at some point, been publicly sanctioned by the state’s trial board. The Tribune uncovered cases of lawyers falling asleep at trials, engaging in extortion and assaulting teenage girls. Prosecutors and police were found concealing evidence or worse. In 1980, Cesar Fierro received the death penalty on the strength of a confession secured after an El Paso sheriff colluded with police across the border in Juárez, Mexico, who arrested Fierro’s parents and threatened to attach an electric generator to his stepfather’s genitals. Fierro is still on death row.

Texas regularly executes more criminals than any other state, and does so in such haphazard fashion that it could be comic. Except people are dying.

Coats, a senior editor at the Atlantic, posts, "The Ghost Of Cameron Todd Willingham."

There really is no polite way to say this: The particular manner in which Texas employs the death penalty is a disgrace to the country. And there's no real end in sight. I am opposed to the death penalty, largely because I think a situation like this, somewhere, is unavoidable. 

On Willingham, I highly recommend everyone in the DC area check out Incendiary, which looks at the case. The explanation of fire science, and the phrenology employed by arson investigators in the case, is gripping. See it. 

And if you haven't read David Grann's piece on the case, please make time. The two compliment each other well.

More commentary on Rick Perry and Todd Willingham begins earlier coverage. 

All Willingham coverage is available through the Todd Willingham index.

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

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

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