The StandDown Texas Project

Oklahoman Editorial on Lethal Injection Drug Shortages

The most recent Oklahoman editorial on the subject is, "As states deal with execution drug shortage, Missouri goes in different direction," in today's issue.

Missouri’s attorney general recently joined Oklahoma’s Scott Pruitt and 13 other colleagues in asking the Justice Department’s help in gaining access to one of the three drugs those states use in executions. Meantime, though, Missouri has opted to simply use one drug it can get its hands on.

The Missouri Department of Corrections is switching to propofol, perhaps best known as the anesthetic that Michael Jackson overdosed on in 2009. Missouri would be the first state to use propofol as an execution drug, which naturally has anti-death penalty groups up in arms.

Missouri, Oklahoma and other states that use a three-drug mix in executions are in a bind because of the unavailability of one of the drugs, the sedative pentobarbital.

Makers of the drug oppose selling it for use in executions; the same thing happened with sodium thiopental, which for many years had been the first drug administered during executions.

And:

When might propofol be used in Missouri? Given that the Show Me State will first have to show that one execution drug is as good as three, expect it to be a while.

Earlier coverage of the Missouri drug switch and news of Oklahoma's drug shortage is at the links.  There is also coverage of the attorneys general letter to the Department of Justice on lethal injection drug imports.

Capital Punishment’s Latest Folly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Death Penalty Perils

That's the title of an editorial in today's Houston Chronicle on the case of Carlos DeLuna.

We have noted before, as have other observers, that the death penalty in Texas is all too often plagued by errors and failings, and defendants, whether guilty or innocent, have most likely been executed on the strength of faulty evidence. We concluded therefore that rather than risk executing an innocent person, we should abolish the death penalty.

Last week, we were confronted by compelling evidence that in all likelihood, the unthinkable had happened and the state of Texas had indeed executed an innocent man: Carlos DeLuna, put to death in 1989 for the stabbing death of Wanda Lopez at a Corpus Christi convenience store.

As detailed by the Chronicle's Allan Turner ("Report: Texas executed wrong man in '83 killing," Page A1, May 15,) the Columbia Human Rights Law Review, produced by Columbia University law students, devoted its spring issue to a meticulously researched, 400-page article showing that DeLuna was most probably innocent.

And:

Texas has made significant changes in the past few years, one of them being the adoption of a life without parole sentencing option in capital cases. This in itself takes away a major incentive for the death sentence. But the fact is, we can never rule out human failings and errors. We need to follow the example of a growing number of states and repeal our death penalty law. Its risks far outweigh its benefits.

PBS' NewsHour examined the DeLuna case last night in, "Carlos DeLuna Case: the Fight to Prove an Innocent Man Was Executed," featuring an interview with Columbia Law prof Jim Liebman.  There is video at the link.

RAY SUAREZ: From the very beginning, it seems like things didn't add up. Was there ever any evidence connecting Carlos DeLuna to the gas station and the killing of Wanda Lopez?

JAMES LIEBMAN: There wasn't a shred of forensic in evidence this case. Even though the crime scene was a very small, confined area that was just doused in blood, because the victim was bleeding to death from her knife wound, there wasn't a drop of blood, not even a microscopic drop of blood on Carlos DeLuna or his clothing.

We know because we found the photograph 20 years later that the person who committed the crime left a footprint in blood, very deep blood, almost like stepping in mud. But Carlos DeLuna's shoes didn't have a drop of blood on them.

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

A Tragic Injustice

That's the title of an editorial in today's Buffalo News, subtitled, "New statistics should prod the state to act against wrongful convictions."  It begins today's roundup of coverage on the National Registry of Exonerations.

The problem of wrongful conviction is, we suspect, worse than most people ever thought. A new archive compiled at two universities shows that more than 2,000 people have been exonerated in the past 23 years after being falsely convicted of serious crimes. Those are only the ones who have been cleared. Who knows how many more are watching their lives slip away in prisons where they do not belong?

The problem of wrongful conviction is an under-appreciated catastrophe. Beyond the tragic unfairness of years lost behind bars is the financial and emotional impact on families and society and the hard fact that when the wrong person is in prison, the real criminal remains on the loose.

It would be one thing if nothing could be done about this problem, but there is plenty that can be done. New York just can’t bring itself to do it.

And:

New York combines one of the nation’s worst records on wrongful conviction—two recent cases occurred in Erie County—with one of the worst records at responding appropriately. It knows the problem and it knows what it needs to do. It just won’t do it.

Some of the measures supported by the Innocence Project in New York City, and adopted in other states, include changes in lineup procedures to diminish the frequency of misidentification by witnesses, and recording interrogations to guard against false confessions, an odd phenomenon that occurs with disturbing frequency.

New York’s resistance to reform goes largely unexplained, though some critics believe it is because many voters would perceive such measures as being unfriendly to police and of benefit to criminals. But the opposite is true.

Convicting the right person not only avoids putting innocent people in prison, but ensures that the real criminal isn’t out creating more victims.

"Registry tracks wrongful convictions," is the Lawrence Journal World report by Shaun Hittle.

Jordan Smith posts, "The Problem of Wrongful Conviction," at the Austin Chronicle.

Facing South, the website of the Institute for Southern Studies, posts, "Exonerations highlight criminal injustice in the South."

Earlier coverage of the Registry begins at the link.

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is beginning to garner editorials, and continuing to get focused attention.

"Hard truths about injustice," is the Dallas Morning News editorial.

Call it a graduate course on what can go wrong in the criminal justice system.

There are 891 case studies at present, and climbing.

That’s the number of individual cases listed so far in a new national project on cataloging and dissecting proven miscarriages of justice.

Called the National Registry of Exonerations, the project aims to build the first comprehensive listing of wrongful convictions in America so the public and professionals can learn the hard lesson of failure, then build a better system.

As with a similar, DNA-centered exoneration database maintained by the Innocence Project of New York, this one figures to be a good teacher. And Texas once again has an embarrassingly prominent presence.

So be it. This state needs to have its dirty laundry laid out as often as possible if that’s what it takes to overcome skepticism that things have been just fine the way they are inside Texas’ halls of justice. We know that’s not the case.

"A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system," is the title of a Birmingham News editorial.

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

And:

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The Week magazine bundles, "25 years of wrongful convictions: By the numbers."

891 - Specific wrongful conviction cases detailed in the National Registry of Exonerations

93 - Percent of the exonerated convicts who are men

50 - Percent who are black

10.7 - Average time, in years, from conviction to exoneration

10,000 - Combined time, in years, the 891 exonerated prisoners spent behind bars

2.3 million - People incarcerated in the U.S. 

1,170 - Convicted defendants cleared in 13 "group exonerations" since 1995, following large police-corruption scandals, usually involving planted drugs or guns

416 - People exonerated of wrongful homicide convictions

UMichigan Law prof Sam Gross, co-founder of the Registry, is interviewed on NPR's All Things Considered, "Exoneration List Shows Patterns In False Convictions."  It's conducted by NPR's Audie Cornish.

And, to start, Professor Gross, this registry contains information about, I guess, 2,000 exonerations since 1989, but do you know if that's really a comprehensive list?

SAMUEL GROSS: No, it's not. It's incomplete in two senses. It doesn't include all the exonerations that occurred. It includes those we've been able to get information on. And, second, and really more important, even if we could get information on all the exonerations that have occurred in the United States in the past 20-some years, that would only be a small fraction of the people who were innocent but convicted of serious crimes, despite their innocence.

CORNISH: So, of these 2,000 cases that you talk about, you have almost 900 cases, roughly, that you have the most detail about. And one thing I found interesting is that it wasn't DNA, necessarily, that exonerated all of these people.

GROSS: That's right. If you ask somebody on the street about exonerations, the next word out of their mouth will almost certainly be DNA and that's because DNA exonerations, which started in 1989, have gotten a lot of attention and for good reason. They've taught us a lot about the criminal justice system and they provide a type of scientific evidence of innocence that is very powerful.

But DNA exonerations have always been a minority of the exonerations that occur and the more we learn about exonerations that don't get as much attention, the more non-DNA exonerations we find out about.

Exoneree Franky Carrillo and Sam Gross were guests on MSNBC Politics Nation with Al Sharpton.  Carrillo spoke about his own experience with wrongful conviction and exonerations.

Visit msnbc.com for breaking news, world news, and news about the economy

At Huffington Post David Protess posts, "Meet the Exonerated."  He's president of the Chicago Innocence Project.

Other findings were more nuanced. Notably, exonerations were spread across 43 states, but were most prevalent by far in three states: Illinois, New York and Texas. These states together accounted for one-third of the country's exonerations. Cook County and Dallas County led the way with 114 exonerations between them.

But why? While the knee-jerk reaction is to shout "corruption," the reality is good news more than bad. As the researchers indicate, these areas have been at the forefront of the national innocence movement, with dedicated lawyers, investigators, journalists and even college students engaged in exposing wrongful convictions since the 1990s. In the last five years, the D.A. of Dallas County has remedied injustice in 19 cases, some in collaboration with the local innocence project.

It is reasonable to conclude that if the loosely affiliated public interest groups were to bring their model to populated counties like San Bernardino (Calif.), Fairfax (Va.) and Bergen (N.J.) -- none with an exoneration since 1989 -- the problem of wrongful convictions would suddenly surface.

Another relevant issue is the death penalty. Seven of the 10 states with the most exonerations also had among the highest death row populations. Although fewer than 0.1 percent of prisoners are sentenced to death, 12 percent of exonerees had been condemned. Once again, the death penalty has been a priority of the innocence movement, and many dramatic exonerations have helped to change the conversation about capital punishment in America.

Earlier coverage of the National Registry of Exonerations begins at the link.

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.

Los Angeles Times Endorses Repeal Ballot Initiative

"Yes on the SAFE California Act: It would replace the death penalty with a sentence of life without parole, and solve a host of problems bedeviling the state law enforcement system," is the editorial in today's Los Angeles Times.

Carlos DeLuna was, in all likelihood, murdered by the state of Texas on Dec. 7, 1989.

It's hard to come to any other conclusion after reading an exhaustive analysis of his case published online by a Columbia law school professor and his students. And he may not be the only innocent death row inmate executed by that notably bloodthirsty state. Cameron Todd Willingham, a man whose conviction for setting a fire that killed his three young daughters was based on spectacularly shoddy forensics work, was injected with a death cocktail on Feb. 17, 2004.

This should never happen in California. In November, voters will have a chance to ensure that it doesn't.

Ordinarily, this page doesn't endorse ballot initiatives until shortly before an election, but the SAFE California Act isn't an ordinary ballot measure. It is the culmination of a movement that has been building for many years to replace the death penalty with a sentence of life without the possibility of parole. With one vote, Californians can solve a host of problems bedeviling its law enforcement system: the spiraling costs of incarceration and appeals for death row inmates, the legal tangles over methodology that have stalled executions in this state since 2006, and the unfairness built into a system in which convicts are more likely to be sentenced to death if their victims were white. And, more important, eliminating the death penalty would end the risk that the hands of all Californians will be stained with the blood of an innocent.

And:

If juries and courts were infallible, the death penalty might seem a reasonable punishment for society's most brutal killers. They aren't. In the absence of certainty, which is impossible to achieve, it is more ethical to impose less permanent sentences.

Earlier coverage of the California ballot initiative begins at the link; more on the Columbia HRLR article on Carlos DeLuna and the case of Todd Willingham, also available.

Editorials on the DeLuna Case and Columbia Report

"Carlos DeLuna death case is unnerving," is the editorial in today's Dallas Morning News.

A bizarre reality is imbedded in the public’s attitudes toward the death penalty: Most Americans support it, yet most also allow for the possibility that innocent people can or have been executed.

This suggests one of two things. Either the nation is callous to the idea of fatal error, which we pray is not the truth, or there’s never been a case that has sufficiently aroused the public by putting a face on an innocent victim of a state death chamber.

Could that have changed this week?

The execution of Carlos DeLuna took place 22 years and five months ago, but his path from the streets of Corpus Christi to death row has been freshly examined by a major law school project at Columbia University (reprising work, in greater depth, done by the Chicago Tribune in 2006). The findings should nauseate those who trust that only the greatest care, the most professional police work, the most rigorous jury and appellate review take place before someone is strapped to the gurney and allowed one last say.

And:

We might tell ourselves that today’s technology-savvy public would demand a higher level of proof, that no one would look back in wonder about a current death verdict.

But today’s public also admits that they believe somewhere, something is likely to break down in the system. This newspaper opposes the death penalty for that very reason.

"Another man wrongly executed," is the Philadelphia Inquirer editorial.

With nearly 300 people across the nation exonerated after being sentenced to death, the risk of executing an innocent person is a reality in the 33 states, including Pennsylvania, where capital punishment remains legal.

That risk alone should be enough to persuade responsible elected officials to scrap the death penalty — as Connecticut did in April, following the lead of Illinois, New Mexico, and New Jersey.

There can be no more compelling reason for taking that step than evidence that the wrong person has been executed for a crime.

And that’s exactly what Columbia University law professor James Liebman and five of his students provided this week with their book-length exploration of the 1983 murder for which a Texan, Carlos DeLuna, was put to death in 1989.

The Columbia Human Rights Law Review (HRLR)  article is Los Tocayos Carlos,

More news coverage of the report will be linked in the next post.  Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

The Staley Case

"Steven Staley capital case reveals another glaring flaw in Texas death penalty," is the editorial in today's Fort Worth Star-Telegram.

Staley has been diagnosed as a paranoid schizophrenic who has severe delusions when he isn't taking antipsychotic medication.

For years now, his defense team has argued that it would violate the Constitution's Eighth Amendment ban on cruel and unusual punishment to forcibly medicate Staley to make him lucid enough to comprehend his execution. Prosecutors also argue that the drugs are for Staley's benefit. But clearly having him mentally healthy enough to execute benefits the state, not Staley.

The case has wended its way through the courts, with execution dates being set and then lifted because of the difficulty of finding the correct balance.

In 2006, state District Judge Wayne Salvant in Fort Worth allowed the state to forcibly medicate Staley. But that was appealed, and the issue still isn't settled. Staley was set for execution today, but the Texas Court of Criminal Appeals issued a stay Monday, so the debate will continue.

Staley certainly must be punished for wantonly taking a life. Is forcing him to take dangerous drugs just to make him competent long enough for the state to kill him the only way to accomplish the societal goal of enforcing the rule of "Thou shalt not kill"?

If the answer is "yes," that's one more glaring flaw in Texas' capital punishment system.

If the answer is "no," commuting Staley's death sentence to life imprisonment would achieve punishment without the disturbing precedent that would be set by drugging him to administer a fatal injection.

Earlier coverage of Steven Staley's case begins at the link.

A Routine Execution in Texas

That's the title of an editorial in today's New York Times concerning the case of Carlos DeLuna.  It begins today's extensive coverage of the Columbia Human Rights Law Review (HRLR) article, Los Tocayos Carlos,

Carlos DeLuna, who was executed in 1989 by the state of Texas, was almost certainly wrongly convicted of stabbing a young woman to death with a knife in a gas station robbery in Corpus Christi. Carlos Hernandez, who died in a Texas prison while serving time for stabbing someone else, almost certainly killed the young woman and repeatedly told others that he had committed the murder.

This case is the subject of an extraordinary project at Columbia Law School, which this week released a book-length account — called “Los Tocayos Carlos,” or the namesake Carlos — detailing the errors in the investigation and prosecution of Mr. DeLuna from the moment of his arrest.

Texas has executed 482 people since it reinstated the death penalty in 1982, four times the number of any other state. A grievous injustice was very likely done in the DeLuna case. But the errors documented by Prof. James Liebman and his team are routinely found in other capital cases in Texas and other states.

In 2006, The Chicago Tribune presented evidence casting doubt on Mr. DeLuna’s conviction, based largely on Professor Liebman’s initial research. This account, based on new evidence and a 30-month inquiry, supports an even firmer conclusion that Texas executed an innocent man.

Earlier coverage of the Carlos DeLuna case and the HRLR article begins at the link.  Additional news coverage will be linked in the next post.

Opinion Roundup

Nebraska's Lincoln Journal Star carries the editorial, "Too fallible for death penalty."

The case of the crooked crime scene investigator in Douglas County provides another glaring example of why the criminal justice system cannot be trusted to apply the death penalty.

Humans not only make honest mistakes, sometimes they plant evidence and lie.

The conviction of former CSI chief David Kofoed for tampering with the evidence in a double murder case was upheld earlier this month by the Nebraska Supreme Court.

Kofoed was convicted for planting a speck of blood in a car belonging to a suspect in the case. His bogus evidence resulted in two innocent men being held in jail for several months. Police even wrung a false confession out of one of them.

Fortunately for the two men, the case against them unraveled before they were tried. DNA evidence found on a ring and marijuana pipe found in the home belonged to a pair of Wisconsin teens. They later pleaded guilty to killing a Murdock couple while looking for money during a road trip.

If you think the Kofoed case is one of a kind, think again.

Just do an Internet search for “crime lab scandal.”

You will be -- or should be -- appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence.

And:

The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future. If you don’t want blood on your hands, support repeal of the death penalty.

"End death penalty, says judge," is the San Francisco Chronicle OpEd by LaDoris H. Cordell, a retired Santa Clara County Superior Court judge.

After nearly 19 years presiding as a state court judge in Santa Clara County, I am certain that the SAFE California initiative to replace the death penalty with life without parole will pass in November.

Yes, there have been failed efforts to end the death penalty.

This time it is different because it's about our safety. Californians are facing a serious public safety gap. A shocking 46 percent of murders and 56 percent of rapes in California are unsolved. This means that murderers and rapists are on our streets because the money to pay for investigations to apprehend them is not there - it's in death row. Once we pass the SAFE California Act, we can fund investigations.

Public opinion has shifted, too. When offered a choice between the death penalty and permanent imprisonment, all recent polls show majority preference for life in prison without parole. The failed promise of the death penalty is now obvious to all. Death penalty cases in California take an average of 25 years from conviction to execution. A quarter of a century is not justice for the families of murder victims. It is agony, insulting and unacceptable.

The Arizona Republic publishes the OpEd, "Sentence must be fair," by Larry A. Hammond.  He's chair of the Arizona Justice Project.

Across the country, the death penalty remains very much in the news. Connecticut has just become the 17th state to abolish it. California soon will see a statewide referendum on this issue.

In Arizona we have seen no evident appetite to end capital punishment. To the contrary, the pace of executions seems to be increasing. But underlying what is happening here and what we can see across the country is a growing concern about whether we as a society are prepared to assure that the indigent accused are provided with competent counsel and the resources for an appropriate legal defense.

That concern is well worth examining. Why? Almost every politician, judge and commentator seems to agree that it is essential to provide good counsel at every stage of death-penalty cases. Nobody wants a system where those who are executed turn out to be those who did not have decent, competent lawyers.

Unfortunately, that is the system we have in Arizona, and it is this reality that has caused decision makers in other states to abandon the death penalty. We cannot pretend that those on death row have had and have today the lawyers we all believe they should have. The United States Supreme Court this spring has taken at least one step to do something about this. In a case from Arizona, Martinez vs. Ryan, the Court ruled by a 7-2 majority not to close the federal courthouse door to claims that a convicted defendant was denied effective assistance. This is good news in Maricopa County.

Earlier coverage from Arizona, California, and Nebraska begins at the links.

Pull the Switch on the Death Penalty

That's the title of an editorial in the Baptist Standard, the newspaper of the Baptist General Convention of Texas.  It's signed by Marv Knox, the editor.

Gov. Rick Perry should place a moratorium on executions, and the next session of the Texas Legislature should vote to abolish the death penalty.

Reasoned opposition to capital punishment is rising:

• No reliable research supports the claim that capital punishment deters murder, according to an analysis of dozens of studies conducted across 36 years.

"Fundamental flaws in the research we reviewed make it of no use in answering the question of whether the death penalty affects homicide rates," Daniel Nagin, a Carnegie Mellon University professor who headed up the review for the National Research Council, told USA Today.

• National support for the death penalty has decreased to 61 percent, the lowest level in four decades, a Gallup poll showed.

And given a choice between capital punishment and life without parole, less than a majority of respondents favor execution, a similar survey indicated.

• Seventeen states have overturned the death penalty. Connecticut abolished the practice last month. Illinois, where the Innocence Project proved numerous false convictions, got rid of it last year. California will consider a referendum this fall.

• Tepid implementation of the death penalty seems to reveal a growing distaste for the practice.

And:

Eighth, it's inconceivable Jesus would execute a criminal. As Connecticut Gov. Dan Malloy says: "In the New Testament, the one place where Jesus talks about the death penalty, he says, 'Let he who is without sin cast the first stone.' When I've reflected on the death penalty, the reality is I frequently ponder that passage."

Related posts are in the abolition, editorial, and religion category indexes.

St. Louis Post-Dispatch Editorial on Missouri Drug Shortage

"Shortage of key drugs may suspend death penalty in Missouri," is the title of today's St. Louis Post-Dispatch editorial.

Missouri's bizarre recent history with its capital punishment procedures got more bizarre this week. A federal appeals court in St. Louis said Tuesday that there was no reason for it to rule on a challenge to the state's lethal injection protocol because the Department of Corrections could no longer obtain one of the three drugs specified in the protocol.

"The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will," wrote a three-judge panel of the 8th U.S. Court of Appeals.

Does that mean capital punishment is over in the state of Missouri? Probably not. The court noted that George A. Lombardi, the director of the Department of Corrections, has the authority to rewrite the execution protocol to allow the state to substitute a different drug in its lethal injection procedures.

Some of the 33 states that still have the death penalty are using a substitute drug in the three-drug sequence used in nearly all U.S. executions since the early 1980s. One state, Ohio, has used the substitute in a one-drug procedure. But now the substitute is hard to find, too.

And:

Among Missouri's 47 condemned men, the most immediate beneficiary of the drug shortages is Michael Tisius, 31, who faces an Aug. 3 execution date for the murders of two Randolph County jailers in 2000. His execution almost surely will be stayed.

This would be an ideal time for Missouri to follow the lead of 17 other states and forego capital punishment. It's expensive and serves no deterrent effect. Its administration is always arbitrary and capricious. Missouri so botched its procedures in the mid-2000s that a federal judge suspended executions until the state fixed the problems. Only two men have been executed since 2005.

Enough already.

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

Rhode Island’s Principled Stance

That's the title of an editorial in today's New York Times.

Jason Wayne Pleau, a Rhode Island prisoner, has said he would accept a life sentence without parole, the state’s severest punishment, for robbing and murdering a gas-station manager. The Justice Department, however, wants to prosecute him for those crimes under federal law with the option of seeking the death penalty. The crimes are generally handled by states, so the department’s insistence on making this a federal case is hard to fathom. Justice would be well served if the department let the state deal with Mr. Pleau.

Gov. Lincoln Chafee had refused to transfer custody of Mr. Pleau unless the federal government agreed not to seek the death penalty. The state’s voters abolished the punishment in 1984, and it has not executed anyone since 1852. This week, the United States Court of Appeals for the First Circuit ruled that Governor Chafee must surrender Mr. Pleau under a federal law that governs transfers of prisoners between states and the federal government.

But the government’s insistence on prosecuting him in federal court so it can charge him with a capital crime — it has not indicated if it will seek the death penalty — is largely fueled by bravado. It’s been nine years since anyone was executed for a federal crime. In the last decade when federal juries have had a choice between imposing a life sentence and the death penalty, they have chosen a life sentence by better than two to one. The government is turning this case into a pointless state-federal clash.

"Chafee appeals federal decision on Pleau," is the AP report via the Woonsocket Call.

A tug-of-war over an inmate in Rhode Island custody in a possible death penalty case escalated Wednesday as Gov. Lincoln Chafee said he will appeal to the U.S. Supreme Court a federal court ruling allowing the inmate to stand trial in federal court

Chafee said the court's close vote shows a split in the interpretation of the Interstate Agreement on Detainers Act, which allows governors to refuse to surrender inmates. The U.S. 1st Circuit Court of Appeals voted 3-2 on Monday that Jason Pleau, 34, may stand trial in federal court where he faces a possible death penalty prosecution over a fatal robbery.

Rhode Island does not have the death penalty.

The governor invoked the concept of states' rights in the fight over Pleau, who is accused of fatally shooting a gas station manager outside a Woonsocket bank in 2010.

The Providence Journal reports, "R.I. Gov. Chafee to appeal Pleau case to U.S. Supreme Court."  It's by Katie Mulvaney.

Citing Rhode Island's longstanding ban on the death penalty, Governor Chafee announced Wednesday the state will appeal a decision demanding its surrender of a murder suspect to federal custody to the U.S. Supreme Court.

"Given the close vote of the full court, which demonstrates a genuine split in the interpretation of the law, the State of Rhode Island must seek to protect both the strong states' rights issues at stake and the legitimacy of its longstanding public policy against the death penalty," Chafee said in an emailed statement.

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

Oklahoman Editorial on Lethal Injection Drug Stock

Today's Oklahoman editorial is, "Diminishing supply of lethal injection drug has Oklahoma DOC scrambling."

The death penalty is coming off the books in more and more states. We don't anticipate that happening any time soon in Oklahoma, although carrying out the punishment could become a problem.

The state has in stock only one of the three-drug cocktails it uses in executions. One part of that mixture is the drug pentobarbital, which causes unconsciousness. But pentobarbital has become nigh impossible to get ahold of because the manufacturer no longer sells it to prison systems that intend to use it in executions.

And:

If the drug supply dries up — perhaps when is more accurate — Oklahoma could be forced to consider using a firing squad. Our state constitution allows the use of an electric chair or firing squad if lethal injection is declared unconstitutional. We don't have an electric chair and aren't likely to go shopping for one.

Earlier coverage of the Oklahoma drug shortage begins at the link.

Editorial Roundup

In North Carolina, today's Gaston Gazette carries the editorial, "State should end the death penalty."

North Carolina’s Racial Justice Act recently came under its toughest scrutiny yet when a Cumberland County judge struck down the sentence of a man condemned to death in connection with a 1991 slaying.

Marcus Raymond Robinson was convicted in 1994 of killing a white teenager. His sentence was reduced from death to life in prison by Judge Gregory A. Weeks, who is also black.

In his ruling, Weeks found that prosecutors used the races of the members of the jury pool in exercising peremptory strikes. In his opinion, Weeks also said that he believed other prosecutors across the state had resorted to the same tactics in prosecuting death penalty cases.

Court observers have said they believe the ruling will have far-reaching effects. It is being hailed by death penalty opponents as movement in the right direction. They believe that the death penalty is morally wrong, no matter what the circumstances.

And:

Death penalty proponents say that the death penalty acts as a permanent deterrent to criminals of the worst kind. But because the process is so lengthy and labor-intensive, it instills in its place a bureaucratic nightmare that drags both the defendant and victims’ families through years of agony before being carried out.

A much better alternative would be life without possibility of parole.

The death penalty should be abolished. It blackens the eye of the North Carolina criminal justice system and tarnishes what is, for the most part, a genuinely fair system of justice.

The Racial Justice Act has come under a good deal of criticism, but if it begins the process of dismantling this shameful method of dealing with the disposition of justice, then it really will have done its job.

Canada's Globe and Mail has the editorial, "The Canadian on death row should live."

Ronald Smith, originally of Red Deer, Alta., committed two monstrous murders in Montana in 1982, when he was in his mid-20s, and asked for the death penalty. But the death penalty itself is monstrous, and 30 years later, the State of Montana should grant clemency to Mr. Smith not because he has changed, as he claims, but because the world has.

Capital punishment is gone from nearly all other Western democracies, and so the spectacle on display at the Montana Board of Pardons and Parole this week would have been unthinkable almost anywhere else in the West. One by one, family members of the murdered ones, denied closure for decades, advocated publicly for the death of the convicted killer, while on the other side the daughter of that killer, having spent her entire life in the shadow of that death penalty, begged for her father’s life to be spared.

This was degrading to Montana, not to the individuals involved; it degraded the justice system that invited them to put their pain and emotion at the service of a state with the power to kill, or in opposition to that power. To conscript suffering people into a decades-long fight over life and death is heartlessly cruel.

And:

“I’ve destroyed so many lives,” Mr. Smith told the CBC. “Not only the victims’ lives but the families of the victims and my family and my own life.” Clemency for Mr. Smith would end the cycle of destruction – a cycle that government should have no part in.

Earlier coverage of North Carolina's Racial Justice Act and the Montana clemency hearing begins at the links.  Related posts are in the editorial index.

End Kentucky's Death Penalty

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

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

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

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

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

And:

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

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

The Myth of Deterrence

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

One of the most frequently made claims about the death penalty is that it deters potential murderers. That was the claim when the Supreme Court reinstated capital punishment in 1976. It is the claim today after a revival of research about the topic in the last decade.

But a distinguished committee of scholars working for the National Research Council has now reached the striking and convincing conclusion that all of the research about deterrence and the death penalty done in the past generation, including by some first-rank scholars at the most prestigious universities, should be ignored.

The committee found that the research “is not informative about whether capital punishment increases, decreases, or has no effect on homicide rates.” No study looks at what really matters, by comparing the deterrent effects of capital punishment with other penalties, like life without parole. A lot of the research assumes that “potential murderers respond to the objective risk of execution,” but only one in six of the people sentenced to death in the last 35 years have been executed and no study properly took that diminished risk into account.

And:

On Wednesday when Connecticut’s governor, Dannel Malloy, signed the state’s new law abolishing the death penalty, these problems were on his mind. As a former supporter of capital punishment, he said that he “came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.”

The 33 states that retain the death penalty should follow that lead.

Earlier coverage of the National Research Council deterrence study and Connecticut repeal begins at the links.

Commentary on the North Carolina RJA Ruling

"Justice Under North Carolina’s Racial Bias Law," is the title of a New York Times editorial.

In a careful, 167-page opinion, the judge found “race was a significant factor in decisions to exercise peremptory challenges” — the practice of dismissing potential jurors — in death-penalty cases in the state generally and in the county where Mr. Robinson was tried. Almost 40 percent of county residents were black, yet the jury was made up of nine whites, two blacks and one American Indian. Statewide, 52 percent of death row inmates (157 total) are black compared with 22 percent of state population.

The judge found that “highly reliable” statistical evidence from a study by the Michigan State University College of Law showed racial discrimination in removing blacks from juries in all but four of the state’s 100 counties. He also found that state prosecutors “intentionally discriminated,” and called their statements meant to disprove bias “irrational,” “inaccurate” and “misleading.”

The Supreme Court, 25 years ago, said it was the duty of the states to address racial prejudice in the administration of the death penalty. Only a small number have actually done so. The Racial Justice Act is a laudable effort and the ruling in this case corrects a gross injustice. But the persistence of racial bias in far too many states is a powerful reason that the death penalty should be abolished in North Carolina and throughout the country.

Raleigh's New & Observer carries the editorial, "A stroke for justice."

The first case to yield a judge’s decision under North Carolina’s Racial Justice Act paints a disturbing picture of the role of race in trials and sentencing.

Judge Gregory Weeks of Cumberland County Superior Court found abundant evidence that prosecutors tend to tilt their selection of jurors with an eye toward minimizing the influence of African-Americans. That unfairly deprives black citizens of their right to participate in the justice system, relegates them to second-class status and damages the credibility of verdicts.

The Racial Justice Act, approved in 2009, is meant to be a safeguard against bias in death penalty cases, where the stakes are highest. In agreeing that convicted murderer Marcus Robinson’s death sentence should be vacated and that he should serve life in prison without the possibility of parole, Weeks considered a wide range of testimony and evidence showing how blacks are disproportionately excluded when juries are chosen. Prosecutors who fought against the act’s approval and who want to see it overturned would do better to concentrate on some soul-searching aimed at eliminating bias that now has been convincingly shown.

"Judge: Death-penalty jury reforms needed," is the Charlotte Observer editorial.

The first test of North Carolina’s Racial Justice Act resulted in the commutation Friday of a death-row inmate’s sentence to life in prison without the possibility of parole. That’s historic.

But the most compelling outcome of that trial was these words from Superior Court Judge Greg Weeks, who heard the case and commuted the sentence:

The inmate’s attorneys “presented a wealth of evidence showing the persistent, persuasive and distorting role of race in jury selection in North Carolina… The state’s evidence not only failed to rebut [the inmate’s] evidentiary showing, but in many respects, it reinforced and strengthened it. The evidence is a clear signal of the need for reform in capital jury selection proceedings in the future.”

He further noted that “the very integrity of the court is jeopardized when a prosecutor’s discrimination invites cynicism respecting the jury’s neutrality and undermines public confidence.”

That’s a damning summation of the application of justice in North Carolina. If the judge is on point, even those who don’t agree with the Racial Justice Act – which allows inmates to appeal death sentences on racial bias grounds – as a remedy should heed the call for reform in how capital case juries are selected.

At the Atlantic, Andrew Cohen posts, "Racial Bias in Death Penalty Cases: A North Carolina Test."

If we still want to have a sound and sober national conversation about race and justice, if we still are eager to use a single case as a totem for what we perceive to be wrong or unjust about the criminal justice system, perhaps we all would be better served by paying attention to what's happening in North Carolina to a man named Marcus Robinson than we are by paying attention to what's happening in Florida to a man named George Zimmerman.

And:

Actually, Cumberland County Senior Resident Presiding Judge Gregory A. Weeks' order was more of an indictment than an apology. In meticulous detail, he explained why Robinson, who is black, deserved relief under the state's Racial Justice Act, a laudable legislative effort designed to vindicate the rights of capital defendants whose trials are marked by racial bias. Weeks was convinced by the evidence that prosecutors had used peremptory challenges at Robinson's 1994 murder trial to systematically remove blacks from his jury pool.

An apology. An indictment. And also a warning. Judge Weeks wrote: "In the first case to advance to an evidentiary hearing under the RJA, Robinson introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina. The evidence, largely unrebutted by the State, requires relief in his case and should serve as a clear signal of the need for reform in capital jury selection proceedings in the future."

"N.C. Ruling Is a Step Toward Honesty About Death Penalty’s Racism,"" is University of Houston Law prof David Dow's post at Daily Beast.

A quarter century after the U.S. Supreme Court ruled that racism in the application of the death penalty doesn’t matter, we’re finally beginning to have an honest discussion about how we justify legally killing people.

On Apr. 20, a judge in North Carolina relied on a new state law to order that a death-row inmate’s sentence be reduced to life in prison, after finding that his trial had been so irreversibly tainted by racism that executing him would violate the Constitution.

I want to pause here to recognize the momentousness of this ruling: A judge in an Southern active death-penalty state just upheld the rule of law, even though it meant sparing the life of a convicted murderer. 

And:

Weeks’s ruling—the first invocation of the new Racial Justice Act—was the first step in repairing the damage done by one of the Supreme Court’s most notorious holdings: McCleskey v. Kemp, decided 25 years ago this month.

In that case, lawyers for Warren McCleskey—who had been sentenced to death for killing Atlanta police officer Frank Schlatt—proved that black defendants are statistically more likely than whites to face the death penalty, and that murderers whose victims are white are more likely to face death than killers whose victims are black. In numerous contexts—for instance, allegations of employment discrimination, charges of bias in university admissions, and claims of police misconduct—parties can use general statistics to prevail, even in the absence of specific wrongdoing in their case. But in a 5-4 vote, the justices in McCleskey swatted it all away, carving out an exception for death-penalty cases.

Earlier coverage of Friday's RJA ruling begins at the link.

Ohio Editorial & News Roundup

"Flaws in law, judicial questions and costs of capital cases reinforce the moral imperative to end capital punishment," is the Cleveland Plain Dealer editorial.

A federal judge has opened the door for Ohio to resume executions. That doesn't mean the state has to -- or should -- begin executing prisoners again.

In fact, this would be the ideal time for Ohio to repeal its capital punishment statute, as this page long has advocated.

One of the Ohio law's authors, current state Supreme Court Justice Paul Pfeifer, has become a very public critic of how the death penalty is applied.

Others who have expressed reservations about capital punishment include former state prisons director Terry Collins, who oversaw 33 executions, and former Ohio Attorney General James Petro, who helped Pfeifer draft the statute when they were in the General Assembly and who has co-authored a book about wrongful convictions. Petro, for one, is not yet ready to say that Ohio should abolish the death penalty.

And:

Ohio's conduct of executions has faced sharp scrutiny since 2009, when executioners tried for almost two hours to insert a needle into the veins of Romell Broom before then-Gov. Ted Strickland halted the proceedings. Broom remains on death row.

Prison is where Broom belongs until natural death claims him. Wiles, too. This is no defense of the horrors they committed. But taking their lives in the name of justice is wrong.

The AP posts, "Condemned Ohio inmate won't appeal execution," by Andrew Welsh-Huggins, via the Newark Advocate.

A condemned inmate scheduled to die next week for killing a teenager during a 1985 farmhouse robbery has decided not to appeal a judge's order allowing the execution, his attorney said Friday.

If put to death, 49-year-old Mark Wiles would be the first inmate executed in Ohio in six months following legal fights over the state's lethal injection policies.

Wiles attorney Allen Bohnert told The Associated Press that Wiles was not appealing but declined to say why or comment further.

Wiles' decision came two days after Gov. John Kasich refused to spare him, a decision that upheld the Ohio Parole Board's ruling to deny Wiles clemency.

And:

Attorneys who have represented Wiles before the Ohio Parole Board called the state's clemency system arbitrary and unpredictable and said Wiles was not the "worst of the worst" for whom capital punishment was designed.

The Youngstown Vindicator editorial is, "Get executions back on track for Portage, Trumbull killers."

Two noteworthy developments this week in Connecticut and Ohio reinforce the highly contentious debate over the death penalty.

In Connecticut, the state Legislature approved an outright abolition of capital punishment, making The Constitution State the 17th in the nation to outlaw the death penalty. In Ohio, Gov. John Kasich denied clemency for a Portage County murderer after a federal judge ended a five-month moratorium on executions over legal complaints that Ohio had not followed its own lethal-injection protocol properly.

In Connecticut, we recognize the abolition of capital punishment as a predictable outcome for that region: Only one state in the entire Northeast — New Hampshire — continues to respect the logic behind the death penalty and keeps it on the books.

In Ohio, we welcome the developments as a sign that the state has learned from its past transgressions in the use of lethal injection and as a harbinger that this state will continue to maintain the death penalty for the worst of the worst of cold-blooded murderers.

Earlier coverage from Ohio begins at the link.

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.

The Pennsylvania Death Penalty & Ray Krone's Exoneration

"10 years after DNA cleared York County man, death penalty still debated," is the retrospective article by Teresa Ann Boeckel from the York Daily Record.  Here's the beginning

Ten years ago today, Ray Krone walked out of an Arizona prison after DNA tests showed he did not murder a Phoenix bartender in 1991.

He became the 100th death row exonoree, and his case came at a time when federal legislators were considering death penalty reform, said Richard Dieter, executive director of the Death Penalty Information Center.

What shook many was that Krone had been convicted twice in the murder, he said.

Krone was a military veteran, a Bible reader, and one of the top graduates in his Dover Area High School class. He had maintained his innocence during the 10 years he spent in prison, two of those years on death row.

"It was a revelation that so many mistakes could havebeen made," Dieter said.

In the past 10 years, several states, such as Illinois, New Mexico and New Jersey, have abolished the death penalty, Dieter said. Others, such as Maryland, Connecticut and California, are seriously considering it.

The number of executions nationwide has dropped in the last 10 years, and the public is more aware of the errors that can occur.

Though Krone had moved to Arizona following service in the military, he had deep routes and family in York, Pennsylvania, and the Daily News championed his case in the years before Krone was exonerated.

"Death penalty a bad option," is the editorial of the Pocono Record.

The same week Connecticut's Senate voted to repeal the death penalty, a Monroe County jury agreed to impose that ultimate penalty on convicted murderer Michael Parrish.

That death penalty shouldn't have been recommended — but not because of the jury's decision. Jurors only did their duty in a state whose sentencing guidelines include capital punishment for the most egregious crimes.

Rather, Pennsylvania ought to be reconsidering the death penalty altogether. Before Connecticut, four other states — New York, Illinois, New Mexico and New Jersey — all abolished the death penalty, citing moral and fiscal reasons.

Important moral considerations aside, the death penalty is unarguably costly thanks to protracted, expensive appeals. Even years of incarceration don't add up to such legal costs.

But the fundamental problem with the death penalty is that it always carries with it the possibility of error. Sending the wrong person to death for a crime that person did not commit is not a risk moral people should be willing to take.

And:

Clearly the Parrish jurors deemed him guilty of the most heinous of crimes and felt he deserved the ultimate punishment. But by allowing the death penalty, states keep open the possibility, however slight, that someday, in some case, an innocent person could be wrongly convicted and put to death. A majority of Connecticut's House members recognize that as unacceptable and voted last week to abolish the death penalty. That state's Senate and governor are expected to follow suit. Pennsylvanians, too, should acknowledge that there is no margin for error when it comes to putting someone to death.

"Pocono religious leaders weigh in on death penalty," by Andrew Scott also appered in the Sunday Pocono Record.

Members of various faiths and denominations in the Poconos religious community were asked to weigh in about the death penalty after a jury this week convicted Michael Parrish of Effort of murder and decided he should be executed.

Earlier coverge of Pennsylvania capital punishment issues begins at the link.

Ohio Gears Up for Resumption of Executions

The Sunday Akron Beacon Journal carried the editorial, "A governor’s choice."

On Wednesday, federal Judge Gregory Frost gave Ohio permission to proceed with the death penalty. The judge long has been frustrated with the state’s “consistent inconsistency” in applying its rules for lethal injection. Now the state is positioned to end what has been a six-month moratorium on executions. Mark Wiles is schedule to die in 10 days.

Wiles has been on death row for 26 years, convicted for killing Mark Klima of Portage County, bright, promising, 15 years old and dreaming of becoming a doctor. Wiles once worked for the Klima family on its horse farm. In attempting to burglarize the home, he encountered the young man and stabbed him to death.

Two weeks ago, the Ohio parole board unanimously ruled against clemency. It rejected altering the sentence to life in prison without the possibility of parole. That leaves the final decision with the governor, who would do well to view the choice in a larger context, weighing the details of the case and the way the state should conduct capital punishment. There is a strong argument for Wiles living the rest of his life in prison.

And:

The deeper question for John Kasich, who has been thoughtful in these and similar matters, is: Whom should the state put to death?

"Ohio death penalty debate continues as executions start up again," is Marc Kovac's report for the Wooster Daily-Record.

Two Democratic state lawmakers continue to call for an end to the death penalty in Ohio, "raising fervent opposition" to Judge Frost's decision last week,

Reps. Nickie Antonio, from the Cleveland area, and Ted Celeste, from the Columbus area, are sponsors of legislation that would ban the death penalty, replacing it with life in prison without parole.

Last week, they pointed to Connecticut, the 17th state in the country that has ceased putting inmates to death.

"Moving forward with executions is a step backward for Ohio," Antonio said in a released statement. "Now is the time for Ohio to join policy leaders throughout the country and move to life without parole."

Celeste added, "Connecticut will soon be the fifth state in the past five years to abolish this barbaric, outdated form of punishment. Public opinion is clearly changing with regard to capital punishment, and I am hopeful that Ohio will soon be able to capitalize on this momentum as well."

"Sen. Brown stands firm against death penalty," is the Toledo Blade report by Ignazio Messina.

An Ohio state senator from Toledo said she would not be deterred from her desire to abolish the death penalty in the state, even after the sentence of death last week for convicted killer Anthony Belton and calls by some in the public for the penalty to be carried out in his case.

Edna Brown, a Democrat who recently launched a legislative effort to end capital punishment, said she does not want to get involved in individual cases, such as the murder of store clerk Matthew Dugan by Belton during a 2008 robbery.

"I did not follow the trial, but my concern is not with individual cases," Ms. Brown said. "My concern is with the process and possibility, as I have said previously, of an innocent person being executed. Whether someone is innocent or guilty is not where I stand. The death penalty should be eliminated."

And:

Ms. Brown is a sponsor of Senate Bill 270, which would strike references to capital punishment and the death penalty from state law. It is not expected to move within the Republican-controlled Senate.

Ms. Brown has said the most she hopes for now is additional hearings.

Earlier coverage from Ohio begins at the link.

Nebraska Editorial on State's Search for Drugs

"Suspend search for execution drug," is the editorial in today's Lincoln Journal News.

Nebraska and other states already have stretched ethical boundaries in trying to find a supply of sodium thiopental to use for executing prisoners by lethal injection.

Their zeal to find the drug has led them to do business with characters of uncertain repute. The dubious nature of the transactions makes it reasonable to question exactly what sort of drug the state has purchased.

In the wake of a federal court ruling last month, Nebraska officials should suspend their attempt to buy the drug. It's obvious the drug protocol is unworkable under current state law.

U.S. District Court Judge Richard Leon last month ruled that the Food and Drug Administration must block importation of sodium thiopental because it is an unapproved drug.

In addition, Leon, who was appointed by President George W. Bush, ordered the FDA to require any state correctional department in possession of sodium thiopental to return the drug to the FDA.

The FDA should carry out the order, and the state of Nebraska should comply.

And:

It's no secret that the Journal Star's editorial board has an agenda that includes repealing the state's death penalty.

But even supporters of the death penalty should concede that Nebraska's pursuit of sodium thiopental has turned into a ghoulish crusade. Nebraska officials should suspend the search for the drug.

Earlier coverage of Nebraska lethal injection issues begins at the link.  Related posts are in the international and lethal injection indexes.

Death Penalty Decisions for L.A.'s Next D.A.

That's the title of an editorial in today's Los Angeles Times.  It's subtitled, "L.A. County sent more people to death row in 2009 than Texas. It's a key issue in this race."

Los Angeles County residents look into their magic mirrors and see a humane and enlightened region with pragmatic criminal justice laws, unlike those backward, supposedly execution-crazy folks in places like Texas. The facts state otherwise. While the rest of California condemns felons to death at the same slowing pace as the rest of the nation, prosecutors in Los Angeles seek the death penalty aggressively. This single county sent more people to death row in 2009 than the entire state of Texas.

In November, Californians may consider a ballot measure that would eliminate the death penalty in favor of life-without-parole sentences, a proposal that has polled well but whose prospects remain uncertain in a state that has historically favored capital punishment. Even before then, though, voters in the state's most populous county will choose from among six candidates for district attorney, and the discussion and debate among those candidates, and between them and the voters, will directly affect how this region considers and uses the death penalty. Whether we eliminate capital punishment (and The Times believes strongly that we should) or keep it, county voters deserve to know where the candidates stand on the issue.

The question goes beyond merely who is for it and who is against it. Or even, for that matter, whether any given candidate uses the words that so many prosecutors do when describing who should be sent to death row: only "the worst of the worst."

And:

Will the next Los Angeles County district attorney keep up the current pace of death sentences? The candidates must tell voters — and explain their reasons.

L.A. Weekly posts, "D.A. Debate: Three Prosecutors Duke, As Carmen Trutanich Ducks," by Gene Maddaus.

Three candidates for L.A. District Attorney debated public safety issues on Saturday afternoon. But once again, City Attorney Carmen Trutanich was not among them.

Trutanich, the leading fundraiser in the race, also skipped the first debate, back in November. At the time, he was still claiming publicly that he had not decided whether to run. Now that's he officially in the race, what's his excuse?

"Scheduling conflict."

Right.

In his absence, the other three top contenders had a civil encounter, drawing distinctions on issues like prison realignment, the death penalty, and juvenile justice reform.

This was the first debate since Mario Trujillo dropped out, and his absence leaves a hole at the liberal-reform end of the political spectrum. The remaining candidates are all more conservative, both in terms of policy and their approach.

The closest candidate to Trujillo's views is Danette Meyers, a career prosecutor who has the backing of former District Attorney Gil Garcetti. Meyers has a tough demeanor, emphasizing the number of murder trials and death penalty cases she's prosecuted. But she's also built her campaign around reforming the way the D.A.'s office treats juvenile offenders, arguing that too many are sent to the adult system.

The article also has brief descriptions of the other two candidates, Alan Jackson and Jackie Lace.

Legislature's Capital Offense

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

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

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

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

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

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

And:

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

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

More on the Stevens Case & Prosecutorial Misconduct

Today's New York Times also publishes the editorial, "Justice After Senator Stevens."

The Department of Justice has acknowledged pervasive prosecutorial misconduct in the corruption trial of the late Senator Ted Stevens. It needs to take an even closer look at the powers and responsibilities of its prosecutors, after a scathing new report on the case by a court-appointed investigator.

The obligation of prosecutors to disclose evidence favorable to their adversaries is a cornerstone of justice. Yet in the conviction of Senator Stevens in 2008, vital evidence was concealed that would have “seriously damaged the testimony and credibility of the government’s key witness,” according to the finding of Henry Schuelke, who conducted a two-and-a-half-year investigation.

And:

The Justice Department has intensified training of prosecutors on exculpatory policy. They are still allowed to decide what is “material” — a glaring temptation for concealment. The department should set a national standard by joining state and local governments that have adopted open-file requirements for prosecutors to be far more forthcoming about evidence favoring the defense. That is the only fitting postscript to the Stevens debacle.

Coverage of the Schuelke report begins at the link.  Related posts are in the prosecutorial misconduct index.

Pennsylvania and the Death Penalty

That's the title of an editorial in today's News York Times.

In the past year, the appalling injustice of Pennsylvania’s death penalty system has been the subject of review and debate among the state judiciary, lawyers and the media. Two new judicial reports and a recent death sentence for an indigent defendant in Philadelphia further bolster the case to abolish the system.

In February, a report by a Philadelphia judge ordered by the Pennsylvania Supreme Court found that the amount the city has long paid court-appointed private lawyers in death cases is “grossly inadequate” and has increased “the risk of ineffective counsel.” A RAND study in December similarly found that low pay and lack of support for court-appointed lawyers in Philadelphia were significant factors in inadequate legal representation. The consequences have played out in legal appeals: of the state’s capital convictions since 1976, 32 percent were reversed or sent back for new hearings because of errors by lawyers, according to an investigation by The Philadelphia Inquirer last October.

Another Philadelphia judge issued an order late last month suspending the work of a committee of judges and lawyers charged with identifying lawyers qualified to represent death penalty defendants. The committee came up with 12 names, which the judge said was “insufficient to meet the immediate needs.” He stopped the committee from doing further work, and, expressing frustration, put the task in the hands of a single judge.

And:

Although Pennsylvania has carried out only three executions since 1976, its system is no less barbaric for that fact. Two hundred and five inmates are on death row. The White case underscores the state’s continuing failure to meet constitutional standards in capital cases. It is well past time for the state to stop its machinery of death.

Earlier coverage of Pennsylvania death penalty issues begins at the link.

Kansas City Star on the ABA Missouri Assessment

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

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

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

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

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

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

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

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

Another Call for California Repeal

"First, abolish the death penalty," is the title of a Los Angeles Times editorial.  It appeared in the Sunday edition.

This page has a long history of opposing the death penalty. As far back as 1971, before the alternative sentence of life without the possibility of parole had been devised, we were pining for such a choice. If there were a way to ensure that convicted killers would remain in prison for life, a member of The Times' editorial board wrote during the Nixon administration, "would it not be better to forgo, in some humility about the limitations of human judgment, the imposition of the ultimate punishment? We are inclined to think it would."

We are still so inclined. So when an activist group called SAFE California submitted 800,000 signatures to election authorities this month for a November ballot measure to end capital punishment in the Golden State, it seemed we were headed for one of the easiest endorsement decisions we've been confronted with in years. It still may be, though the measure contains a provision we wish it didn't.

The so-called SAFE California Act would do two things we wholeheartedly support: It would change the maximum penalty imposed by California courts from death to life without parole, and it would retroactively apply that same penalty to inmates currently on death row. But it doesn't stop there. It would also order the state to transfer $30 million a year for three years to municipal police and prosecutors "for the purpose of increasing the rate at which homicide and rape cases are solved."

Although it's true that eliminating the death penalty could save more than $100 million a year, this kind of ballot-box budgeting is one cause of California's annual budget nightmare, imposing a straitjacket on lawmakers when revenues fall and making it impossible for them to set reasonable funding priorities because money is legally committed to specific programs.

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

Study Vindicates N.J. Justice's Stance Against Capital Punishment

That's the title of a Newark Star-Ledger editorial.  It appeared in the Saturday edition.

New Jersey Supreme Court Justice Virginia Long was a voice of reason as our state agonized over ending the death penalty. Now, as she heads out the door to retirement, an important new study confirms she got it exactly right.

To explain why she consistently voted against capital punishment — often as the sole dissenter — Long said: “It was the randomness of the application that was constantly bothering me.’’

That’s how the death penalty, which New Jersey eliminated five years ago, is still being applied in other states — haphazardly. Not based on the heinousness of the crime, this new study found.

It was conducted by Stanford law professor John Donohue, who used Connecticut as an example. After analyzing all murder cases over a 34-year period, he found that the death penalty doesn’t punish the worst criminals, as it’s intended to. Inmates on death row were indistinguishable from equally violent offenders who escaped that penalty.

The whole sentencing process, which is similar to that of other death penalty states, is utterly arbitrary, he concluded. The nature of the crime bore almost no relationship to how the case turned out.

Among the 29 defendants who had a death penalty hearing in Connecticut, there was no clear difference in the level of depravity or egregiousness for the 17 who got life without parole and the 12 sentenced to death.

The process is also discriminatory. Black defendants are more likely to be sentenced to death if their victim is white. Defendants in certain geographic areas are also more likely to end up on death row.

The scholarly study is "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4,686 Murders to One Execution," by John J. Donohue of Stanford Law School.  The paper's abstract available at the link.

More from Connecticut and this legislative session's repeal dialgoue begis a th the link.

North Carolina's Death Penalty Debate

That's the title of an editorial in the Sacramento Bee, today.  It originally appeared in the Los Angeles Times on March 6, and is distributed by McClatchy-Tribune News Service.

The machinery of death is ripping itself to chunks in North Carolina. Would that this would happen in more places — like, say, California.

Conservatives and prosecutors in the Tarheel State are up in arms over a 2009 law that allows death row inmates to reduce their sentences to life without parole if they can prove racial bias in sentencing or jury selection — even if the bias wasn't directed at them but at others. In other words, if convicts can show a statistical pattern of racial bias statewide, they can use it as evidence that their own trial may have been skewed. And they don't have to be minorities to appeal; a white inmate who can show excessive dismissal of black potential jurors might be able to dodge the executioner.

Opponents of the law are calling it a backdoor way to end the death penalty, and they're probably not wrong. That's because it's not going to be very hard for inmates to demonstrate racial bias. A Michigan State University study found that, between 1990 and 2010, North Carolina prosecutors dismissed black potential jurors at twice the rate of nonblacks in death penalty cases. The case of the first inmate to test this law, convicted killer Marcus Reymond Robinson, is currently being heard, and as Times staff writer David Zucchino reported Wednesday, it's being watched carefully in other states. North Carolina's law may well spread if Robinson succeeds.

And:

Capital punishment imposes ruinous costs on states, it can't be reversed if an inmate is later exonerated, it's highly questionable whether it can be carried out in a humane manner, and it protects society from killers no better than putting them away for life. As for the possibility of racial bias in sentencing, there probably isn't a reliable way to eliminate it. North Carolina is going through the back door when, with more honesty and fewer complications, it could go through the front.

Earlier coverage of North Carolina's Racial Justice Act begins at the link.

Counsel in Death Penalty Cases

That's the title of an editorial in today's New York Times concerning the U.S. Supreme Court ruling in Martel v. Clair, handed down earlier this week.  The ruling is available in Adobe .pdf format.

The Supreme Court properly ruled this week that the legal standard federal courts should use in deciding if an indigent defendant in a death penalty case can get a new lawyer is whether replacing appointed counsel serves “the interests of justice.”

In her opinion for the unanimous court in Martel v. Clair, Justice Elena Kagan explained there was no reason to deviate from this standard, which applies to substitution of counsel in noncapital cases.

The court is right on the legal standard. But it unjustly denied Kenneth Clair, a death row inmate in California, the right to change lawyers because of the particular facts of his case.

And:

While this ruling clarifies the proper standard for new counsel in capital cases, it is also a reminder that the horror of the death penalty continues in California and elsewhere in the country.

The SCOTUSblog case file contains all briefing in the case.

Reactions to ABA Assessments in Missouri & Kentucky

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

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

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

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

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

And:

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

That is not the case in Missouri today.

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

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

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

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

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

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

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

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

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

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

From Maryland

"Maryland’s broken death penalty," is the title of an editorial in today's Washington Post.

ON PAPER, Maryland courts are empowered to impose the death penalty in certain murder cases. In practice, the state’s death penalty is in remission. Five convicts remain on death row, and defendants can be prosecuted for capital murder and sentenced to death, but the state lacks any legal method of carrying out executions. No one has been put to death in Maryland since 2005.

That status quo seems acceptable to the power brokers in Annapolis, who would rather not add to a list of controversies that now includes legalizing same-sex marriage and subsidizing higher education for illegal immigrants.

But by ducking the issue, they are leaving in place a costly, inefficient, unjust and dysfunctional system that exacts a terrible toll on the families of murder victims. Rather than legislating and leading, state lawmakers are in denial.

And:

A majority of the Maryland General Assembly favors an end to capital punishment in the state. Still, legislative leaders are reluctant to allow consideration of a bill that would repeal the death penalty and shift the anticipated savings in the state budget to programs to benefit victims’ families. The leaders would rather leave in place a system that is a disgrace to justice, and to Maryland.

Earlier coverage from Maryland begins at the link.

California Editorials Call for Repeal

Today's Silicon Vallery Mercury News carries the editorial, "California voters should abolish the death penalty."

In November, California can join 16 other states in doing away with the death penalty. It can't happen soon enough.

Backers of the initiative to scrap the death penalty in favor of life in prison without the possibility of parole have gathered enough signatures to put the measure on the ballot. It's now up to voters. Passing the initiative will allow California to put an extra $180 million into its general fund every year to improve education, health care and even public safety. The fortune now spent trying to execute people instead could pay for more police officers and crime prevention programs.

San Quentin Warden Jeanne Woodford supports scrapping the death penalty. So does Don Heller, the former prosecutor who helped write the 34-year-old law, which now is proven to be ineffective in every way.

And:

The death penalty always has been barbaric. Now we also know it is ineffective. It's time to stop. Just stop.

"Time to end the charade," is the Stockton Record editorial.

More than a dozen men sit on San Quentin Prison's death row for crimes they committed in San Joaquin County.

Likely the men - among them serial killer Wesley Shermantine - will die there, although not in the manner prescribed by law.

Since California reinstituted the death penalty in 1978, 94 condemned inmates have died, but only 14 by execution. Fifty-five others died of natural causes, 19 committed suicide, and the others expired by means such as being shot in an exercise yard or being stabbed in an exercise yard. One died of a heart attack after a pepper spray exposure.

And for that, the state has spent billions - literally billions - maintaining the charade of a functioning capital punishment system. Truly, does any rational person believe California is actually going to execute all of the 725 men and women condemned to die? Ever?

It's time to end this, to stop kidding ourselves that this broken system can or will be fixed.

Earlier coverage of the California ballot initiative to replace its death penalty begins at the link

California Roundup & A Texas Comparison

Sunday's Sacramento Bee carries, "The Conversation: Capital punishment: The ultimate debate."  It's datelined Huntsville, Texas and is written by Dan Morain, Senior editor.

At 6:22 p.m. Wednesday, 10 minutes after the deadly intravenous drip began, cop killer George Rivas became the 479th person executed in Texas since the state resumed executions three decades ago.

On the following day, California capital punishment opponents delivered nearly 800,000 signatures to election officials to place a new initiative on the November ballot to abolish state-sanctioned killing.

The death penalty in Texas and California couldn't be more different. It has become part of the fabric of Texas. In California, it is a concept. The number of prisoners theoretically condemned to death stands at 724. But California has executed only 13 people, beginning with Robert Alton Harris, who died in the San Quentin gas chamber on April 21, 1992.

California's system has become so ponderous that the past two state Supreme Court chief justices, both appointed by Republicans, have called it dysfunctional and suggested that if it can't be fixed, it ought to be scrapped. Even in Texas, the death penalty is not all that simple, as Dallas County District Attorney Craig Watkins makes clear.

On the day of Rivas' execution, Watkins arrived early at the red brick prison here known as The Walls. He had multiple reasons for taking the three-hour drive from Dallas to Huntsville. Watkins had never seen an execution and wanted to fully understand the system he must help to enforce.

"Weighing the death penalty," is the Santa Cruz Sentinel editorial.

It would be yet another example of making public policy through initiative, but the drive to place a state death penalty referendum on the November ballot is long overdue.

Backers of the initiative say they have already collected 800,000 signatures, far more than the 504,760 valid signatures required to make the ballot.

If the initiative does make it, as is likely, it will mark the third time in 40 years voters will be asked to decide whether California should have the death penalty. The SAFE California Act would replace the death penalty with life in prison without the possibility of parole.

No matter your opinion on the ultimate morality of capital punishment, the way it has come down has been a travesty in this state. It would be one thing if the death penalty was effectively carried out, but under no stretch of the imagination has this happened.

We're under no illusion voters will automatically just end the death penalty. History teaches otherwise. In 1972, after the state Supreme Court ruled the death penalty unconstitutional, more than two-thirds of voters overrode the decision. Then, in 1978, 71 percent of voters approved an expanded death penalty law passed by legislators over Gov. Jerry Brown's veto.

Earlier coverage from California begins at the link.

Dallas Morning News on Craig Watkins & Capital Punishment

Today's Dallas Morning News carries the editorial, "Clarity on capital punishment needed from Watkins."

Dallas County District Attorney Craig Watkins has again shifted in his ever-evolving posture on the death penalty and left the public hanging on one of the most serious issues his office deals with.

In baring a painful family secret last week — that his great-grandfather was put to death in the electric chair for murder in 1931 — Watkins reiterated his qualms with Texas’ system of capital punishment.

His exact words, spoken in open court as cameras and microphones were trained on him: “People don’t know that my great-grandfather was executed by this state. And so that’s an issue we need to explore, as it relates to our justice system. Are we doing the right thing?”

Spoken by most anybody else, it’s a welcome question, from the standpoint of this newspaper’s opposition to capital punishment.

But since Watkins wields the power of life and death, he has a responsibility to stand and see the discussion through. What he specifically meant by “the right thing” we can only guess, since he has declined requests for a follow-up interview. Watkins did add that his office will continue to pursue death-penalty cases, but is he now contemplating new procedures in his office?

And:

This newspaper believes that no system of capital punishment could be designed to eliminate the possibility of error and guarantee even-handed application across race, class and geography. For that reason, we favor a moratorium on executions and a fearless review of the archaic practice of killing people in the name of the state.

To be sure, an overwhelming percentage of Texans disagree and support the option to exact lethal justice. That makes it doubly important for a reformer such as Watkins to come to the arena prepared to argue his case fully and clearly, as any lawyer should.

Earlier coverage of Dallas District Attorney Craig Watkins begins at the link.

Justice and Open Files

That's the title of an editorial in today's New York Times on prosecutorial misconduct.

Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.

To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.

A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.

It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.

Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.

And:

In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard.

The Tarrant County District Attorney's Office in Fort Worth established a computerized open file system that many view as a model for prosecutorial openness. The Michael Morton case may provide the momentum for the Texas Legislature to mandate some statewide system of criminal discovery when it meets in 2013.

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 on that ruling via Oyez. Related posts are in the prosecutorial misconduct index.

The Cost of Lethal Injection Drugs

Today's Austin American-Statesman carries the editorial, "Add cost of drugs to death penalty debate."

Add to the list of topics for public discussion the high cost of dying.

The American-Statesman's Mike Ward reported last week that the cost of chemicals used to execute condemned inmates has jumped from $83.35 to $1,286.86 each.

And:

Prison officials are avoiding questions about most aspects carrying out executions, citing the fear of driving up costs and impeding their drug supply.

Prison authorities want Attorney General Greg Abbott to allow them to keep most information about the execution drugs — where they come from and how much they cost — secret.

An informed discussion is vital and not knowing about the drugs and their costs works against that. Texans have a right to know how their money is being spent.

Abbott should open up those books, not close them.

"Death penalty: Cost of execution drugs -- and executions -- rises," is the title of Molly Hennessy-Fiske's Los Angeles Times report.  It's also available via the Chicago Tribune.

Texas prison officials say they have enough of the drug to carry out the five executions scheduled this year, but they declined to comment about how much of the drug they have or what they plan to do if supplies run low.

Prison officials are seeking a ruling from Texas Atty. Gen. Greg Abbott before releasing execution drug records, Clark said.

“We're not releasing information on our supplier, the amount we paid for specific drugs and the amount of drugs on hand,” Clark said. “The agency is seeking an AG's opinion to keep the information confidential.”

And:

The price increase in execution drugs is also being felt in Georgia, Oklahoma, Ohio, Mississippi and South Carolina.

Oregon purchased $18,000 worth of the drugs last year, but the execution for which they were planned was ultimately called off by the governor -- who said he would approve no others. Corrections officials in other states had hoped they might be able to buy some of the leftover pentobarbital, but Oregon officials said last month that they had returned the drug to a wholesaler.

The execution drug shortage was highlighted earlier this month in a report in the Guardian about an investigation by the London-based human rights group Reprieve. Maya Foa, with the group’s Stop Lethal Injection Project, estimated the remaining stocks of pentobarbital in Georgia and Texas based on public records.

Foa calculated that Texas had 27 vials of pentobarbital left. The state needs four vials per execution -- two to inject the prisoner, two as backup -- meaning the state has enough for at least six executions, she estimated.

She estimated that Georgia had 17 vials of pentobarbital, enough for four executions.

The AP report, "New drug sparks sharp increase in execution costs," by Michael Graczyk is via Lubbock Avalanche-Journal.

The switch to a substitute drug for executions has driven up the cost of capital punishment in Texas.

A year ago, the European supplier of sodium thiopental, bowing to pressure from death penalty opponents, stopped making it. When no other vendor could be found, the drug was replaced by pentobarbital as one of the three used in the lethal injection process.

With sodium thiopental, Texas Department of Criminal Justice officials said the cost of the lethal injection cocktail was $83.35. It is now $1286.86, with the higher cost primarily due to pentobarbital, officials said. The other drugs are pancuronium bromide and potassium chloride.

A dozen executions have been conducted with the new lethal cocktail in Texas and at least five are scheduled in the coming months.

According to the new numbers, Texas has spent more than $15,400 — versus $1,000 — to carry out those 12 executions.

Prison officials have declined to identify the state’s drug supplier and the specific amount for each drug and are awaiting an opinion from the Texas attorney general on whether they can keep that information confidential.

Earlier coverage of the cost and availability of of Texas execution drugs begins at the link.  Related posts are in the lethal injection and TDCJ indexes.

The Connecticut Repeal Debate

"Seize chance to end state's death penalty," is the Day's editorial in its Sunday edition.

Once again we call upon the General Assembly to approve and Gov. Dannel P. Malloy to sign legislation abolishing the death penalty in Connecticut.

There is no evidence to back claims that the existence of a death penalty reduces murders. The 10 highest states in per capita murders all have the death penalty. Conversely, of the 10 states with the lowest murder rates, six prohibit capital punishment.

Death penalty opponents also argue that taxpayers don't want to pay to support killers in prison. But the reality is that the long appeals process is more expensive than life imprisonment. An analysis of death penalty cases in Texas found the average cost from trial to execution to be $2.3 million. A recent Connecticut Office of Fiscal Analysis review concluded the state would save $4 million annually in defense, prosecution and court costs due to a repeal of the death penalty.

Eliminating deterrence and savings leaves revenge as the only argument for executing murderers. Vengeance as public policy demeans us as a society, lowering the state to the level of the killer rather than taking the higher moral road.

The United States is consistently among the top five countries in the number of executions, joining China, Iran, North Korea, and Yemen. That is hardly proud company to keep when it comes to respecting human rights.

The Day carried the OpEd, "A son murdered, a hard lesson on the use of the death penalty," yesterday.  It's written by Rae Giesing, whose son and his stepbrother were murdered in May 2006.

It is absolutely impossible to describe what it feels like to lose a child, much less to lose a child to violence. I wouldn't wish it on my worst enemy. Now that I have been thrown into a world where murder and trials are no longer distant or abstract notions, I have paid close attention to the efforts in Connecticut to repeal the death penalty. My personal experience has provided me with many reasons why I think Connecticut will be better off without the death penalty.

For starters, I wouldn't wish the death penalty process on any grieving family. I'm incredibly grateful my family wasn't put through the ordeal that comes with the death penalty. Capital cases nearly always take longer to go to trial and then last longer. When the trial is over, with its separate guilt and sentencing phases, and a death verdict is handed down, the journey for the families of victims just begins.

In Connecticut, only one person has been executed in the last 50 years. When someone is sentenced to death, a myriad of constitutionally mandated safeguards go into effect and the actual execution is a distant blip on the horizon. So the family members wait vigilantly for the day when the offender's punishment will finally be carried out.

In our case, prison was the punishment and we were able to see that punishment carried out immediately. We know that the young man is suffering dearly for taking the life of my son and won't be a threat to anyone else. I can't imagine how my life would be stuck on pause if I were still waiting for the "real" punishment of an execution to take place.

Earlier coverage of the Connecticut repeal debate begins at the link.

Editorial Support for Court of Inquiry

Today's Austin American-Statesman carries the editorial, "Possibility of misconduct enough to merit full Anderson inquiry."

It's been four months since Michael Morton was released from prison, exonerated of charges of murdering his wife, Christine. Michael Morton spent 25 years in prison. Attaining his freedom was but one phase in Morton's search for justice; another is under way.

And this new phase focuses on former Williamson County District Attorney Ken Anderson and whether he hid evidence that could have led to Morton's acquittal. Morton's search for greater justice has left Anderson, now a state district judge in Georgetown, with a search of his own: to clear his name and reputation.

State District Judge Sid Harle clearly saw what was at stake for Morton and Anderson when he rightly decided Friday to request a special court of inquiry to examine Anderson's actions in Morton's case. There is probable cause, Harle said, that Anderson violated state law when he prosecuted Morton.

Texas Supreme Court Chief Justice Wallace Jefferson now will decide whether to grant Harle's request. If he agrees with Harle — and a respect for justice demands that he must — he will name a state district judge to oversee the special court of inquiry.

"Inquiry needed in Morton case," is today's Dallas Morning News editorial.

Michael Morton committed no crime the morning of Aug. 13, 1986, which started out as innocently as any other: out the door at 5:30 a.m. for his job as a grocery store manager. The public knows that today.

What we don’t know is whether a crime was committed in putting Morton in prison for nearly 25 years in the beating death of his wife that summer morning. While Morton’s innocence is unquestioned, former District Attorney Ken Anderson must account for disturbing questions about how he orchestrated a case he could sell to a jury and why he withheld exculpatory evidence before trial and during years of appeals.

For that reason we welcome a state judge’s decision in Williamson County last week recommending a rare court of inquiry into Anderson’s behavior.

And:

Jefferson’s decision also could help lay the foundation for reforms in the Texas criminal justice system. With the nation’s longest list of DNA-proven exonerations, the state must build in more safeguards against substandard or dishonest police and prosecutorial work.

The Constitution guarantees that a defendant has access to evidence that could be helpful to the defense, as a check against treachery by government officials. Many states ensure that standard is met through a mandatory “open file” system whereby defense and prosecuting attorneys exchange information before trial. The benefits of that system could become clearer with a detailed examination of Anderson’s prosecution of Morton.

Earlier coverage of the Michael Morton case begins at the link.

Virginia Death Penalty Expansion Voted Down in Senate Committee

"Bill to expand Va. death penalty by redefining ‘triggerman’ rule dies in Senate committee," is the AP filing, via the Washington Post.

A Republican-backed bill to expand the death penalty in Virginia died in a Senate committee Wednesday when a GOP senator abstained, citing a potential conflict of interests.

The bill died on a 7-7 party-line vote in the Courts of Justice Committee, with Sen. Bill Stanley of Franklin County not voting. Stanley said he could not vote because he accepts court appointments to represent defendants in capital murder cases.

Sen. Mark Obenshain’s bill would have redefined the so-called triggerman rule, which in most cases restricts the death penalty to the person who does the actual killing. The legislation would have allowed the death penalty for accomplices who share the intent to kill.

And:

The heavily Republican House of Delegates is likely to pass its own version of the “triggerman” bill, but it still would have to go through the Senate committee to have a chance of passing.

Similar bills cleared both the House and the Senate in 2008 and 2009, but were vetoed by then-Gov. Tim Kaine, a Democrat. The Senate courts committee rejected the bills in 2010 and 2011, when Democrats held the majority.

Today's Richmond Times-Dispatch reports, "Bill to expand eligibility for capital murder defeated in Senate committee," by Jim Nolan.

The GOP-controlled Senate Courts of Justice committee voted 7-7 along party lines, failing to report to the full Senate a redefinition of the so-called "triggerman rule."

Sen. William M. Stanley Jr., R-Franklin, abstained from voting, saying he had a conflict as a lawyer who defends capital cases and receives payment from the state.

Senate Bill 58, sponsored by Sen. Mark D. Obenshain, R-Harrisonburg, would have extended the eligibility for a death sentence in capital murder cases to people who are accessories and principals in the second degree.

As the law now stands, participants in the second degree can be deemed death-penalty eligible in cases of murder for hire, terrorism or organized crime. The proposed legislation would have extended that eligibility in all other capital murder cases if the person who did not commit the killing is determined to have the same intent to kill as the actual killer.

The Virginian-Pilot carries the editorial, "Unwise expansion of death penalty."

This week, as Virginia’s lawmakers debated whether to expand the death penalty, the state prepared to exonerate a 56-year-old man who has spent his adult life being punished for a 1978 rape in Williamsburg that he didn’t commit.

Based on the victim’s identification, Bennett S. Barbour, then 22, was convicted and spent 4½ years in prison. DNA tests unavailable then – and denied to the man in 2004 – now show that he is innocent of the rape of a college student 34 years ago.

Since 2005, when Virginia began testing old biological evidence, at least nine defendants have been found innocent of decades-old charges. Since the late 1980s, 289 defendants in the U.S. have been exonerated; 17 were on death row.

Barbour’s case is the latest reminder that, sometimes with faulty eyewitnesses and sometimes because of corrupt police, our criminal justice system has convicted innocent people and sent them to prison or death row.

It’s also a reminder of why the death penalty is a bad idea. It’s a sentence with no second guesses, no ability to acknowledge an error and correct it.

Which is why, rather than increasing the chance of erroneously executing someone, Virginia should be working to eliminate the possibility of getting it tragically wrong.

Coverage of past attempts by Virginia to expand its death penalty begins at the link. 

Texas law allows for the death penalty to be sought against non-triggermen, and the law of parties has been aggresively used by Texas prosecutors.  Related posts in the law of parties/felony murder rule/accomplice and state legislation indexes.

Race and Death Penalty Juries

That's the title of an editorial in today's New York Times.  It begins our roundup of coverage of the North Carolina Racial Justice Act.

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias.

In 173 cases between 1990 and 2010, the study examined decisions involving 7,421 potential jurors (82 percent were white; 16 percent were black). In 166 cases, where there was at least one black potential juror, prosecutors dismissed more than twice as many blacks from the jury (56 percent) as others (25 percent). With black defendants, like Mr. Robinson, the disparity was even greater. Even accounting for “alternative explanations” besides race for different “strike rates” — for instance, excluding those who expressed ambivalence about the death penalty — the study found blacks were still more than twice as likely to be dismissed.

And:

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

Today's News & Observer of Raleigh reports, "Case highlights Racial Justice Act concerns."  It written by Craig Jarvis and John Frank.

State Senate President Pro Tem Phil Berger and the state chapter of Americans for Prosperity wanteveryone to know that a convicted killer in Wayne County was taken off death row last week and could be eligible for parole.

"Exactly why we said RJA is dangerous," Berger's office tweeted Friday afternoon, referring to the Racial Justice Act.

"Killer taken off death row and made parole eligible," tweeted ASP.

Not only was this not a Racial Justice Act claim - Marvin Williams' death sentence was vacated because he is mentally disabled - but parole is not an option for inmates whosucceed in getting off death row under the 2-year-old law, according to the way the law is written.

Republican lawmakers and the state's prosecutors say someone sentenced at a time when parole was still an option in first-degree murder cases, before 1994, could theoretically end up going free.

But while Williams will be eligible for parole consideration - none of the 16 inmates who have already been spared execution because they were deemed mentally disabled have been paroled - the RJA specifies that life without parole is the only option for a successful claim.

"Prosecutors up next in N.C. Racial Justice Act hearing," is Martha Waggoner's AP filing, via the Virginian Pilot.

Prosecutors will begin presenting their case in the first evidentiary hearing involving North Carolina's Racial Justice Act.

Prosecutors are scheduled to begin presenting their case this morning in a Cumberland County courtroom. Marcus Robinson is a black man serving a death sentence for killing a white teenager in 1991.

Robinson is trying to prove that racial bias played a role in jury selection, saying prosecutors illegally excluded blacks as jurors.

The Fayetteville Observer had daily reports on the hearing last week, written by Paul Woolverton.  "Emotion absent from first week of Racial Justice Act hearing in Fayetteville," provides a summary.  It appeared in yesterday's paper.

At North Carolina's premiere Racial Justice Act hearing in Fayetteville, the mathematical language is clinical, the courtroom emotionally sterile under fluorescent lights.

Two sets of well-dressed lawyers perform with professional decorum and courtesy.

Seated on the front row of the courtroom every day last week, grieving father Richard Tornblom thought the ongoing exercise was a waste of time and money.

"Dog and pony show," he called it, this hearing to determine whether the man who robbed and killed his 17-year-old son Erik more than 20 years ago received the death sentence in a trial infected with racial injustice.

Erik Tornblom was white, defendant Marcus Reymond Robinson is black, and the prosecutor, who was white, was more than three times more prone to dismiss blacks from the jury pool than non-blacks, according to testimony and evidence presented during last week's proceedings.

Additional Fay Observer coverage includes, "Charlotte judge testifies in Racial Justice Act hearing about how he fights courtroom bias," and, "Racial Justice Act hearing: Researcher suggests racial bias in selecting juries."

The ACLU Capital Punishment Project issued a news release, "North Carolinians Struck From Capital Juries Because of Race Speak Out in Favor of Racial Justice Act."  It's also available via PR Web.  It includes video.  Here's the beginning:

North Carolinians who say they were wrongfully struck from juries in capital cases because of their race are speaking out today in a new video produced by the American Civil Liberties Union documenting their experiences.

The video, which features three African-Americans who say they were struck from capital juries by prosecutors simply because of the color of their skin, is being released in conjunction with the first hearing under North Carolina's historic Racial Justice Act. Marcus Robinson is asking that his death sentence be commuted to life in prison without the possibility of parole. Potential African-American jurors in Robinson’s case were struck from his jury at a rate 3.5 times higher than other potential jurors.

“It made me feel like I was back in 1960, that racism is still very much alive,” Laverne Keys, who was excluded in the 1999 case State v. Jathiyah Al-Bayyinah, says in the video. “It makes you wonder whether all these people are being given a fair trial or given a fair consequence so far as the death penalty.”

There is also legislative news on the RJA front from last week.  "Racial Justice Act committee gets its marching orders," was posted by the News & Observer.

That committee House Speaker Thom Tillis appointed last month to try to come up with a Racial Justice Act compromise has been given its official marching orders.

The panel of six Republicans and four Democrats can begin meeting as soon as its chairman, Rep. Tim Moore, a Republican from Cleveland County, calls for it. Some legislators had hoped that the committee might come up with proposed legislative by the short session in May.

However, in an order issued last week, Tillis directed that the committee can do that if it's able, but it doesn’t have to wrap up its work until the General Assembly convenes  next year.

Earlier coverage of the RJA begins at the link.

Nebraska Repeal Bill Pulled by Author

"Lawmaker pulls death-penalty bill," is the title of Kevin O'Hanlon's Lincoln Journal Star report.

A Nebraska lawmaker on Friday requested that debate on her bill to abolish the death penalty be stopped so she can try to get answers about how the state purchased a lethal-injection drug.

Omaha Sen. Brenda Council, whose bill (LB276) would replace the death penalty with a sentence of life in prison, made the request as lawmakers were on the second day of first-round debate on the measure. The lawyer for death-row inmates Michael Ryan and Carey Dean Moore has questioned the legality of the state's purchase of sodium thiopental made by an overseas company. Council wants to look into those allegations before debate resumes.

"It is an issue that needs to be fully vetted as a part of this debate," she said.

Meanwhile, the Nebraska Supreme Court has set a March 6 execution date for Ryan, who killed James Thimm during ritualistic torture at a farm near Rulo in 1985.

Ryan's attorney, Jerry Soucie of the Nebraska Commission for Public Advocacy, has said the sodium thiopental Nebraska bought recently was meant to be used for test and evaluation purposes in Zambia and was not supposed to be sold.

"Death penalty bill postponed," by Joe Duggan for the Omaha World-Herald.

The sponsor of a bill to abolish the death penalty in Nebraska postponed floor debate Friday, saying she hopes to bring the measure back later in the session.

State Sen. Brenda Council of Omaha introduced Legislative Bill 276 to substitute life in prison without parole for the state's current system of lethal injection.

Senators spent about three hours Thursday and Friday debating capital punishment before she made the motion to indefinitely postpone the bill.

Council said she plans to track an ongoing controversy about how Nebraska obtained one of the three drugs it needs to carry out lethal injection. As more develops on that issue, she may ask to have her bill debated again this session.

As it has in the past, the death penalty prompted a sometimes emotional debate by senators.

"To be pro-life is to respect the dignity of every single life. Even the damned. Even those who do the indefensible," said Omaha Sen. Steve Lathrop, explaining that he will vote for the bill.

"There are some crimes that are so heinous there is no other choice but death," said Sen. John Harms of Scottsbluff, noting that two of the state's death-row inmates — both of whom killed children — are from his district.

It's the first time lawmakers have discussed capital punishment since 2010, when a similar measure by Council failed to gain the 25 votes needed to advance. On Friday, she said she had not been compiling a tally of support.

The debate fell about two weeks after the Nebraska Supreme Court scheduled the March 6 execution of double-killer Michael Ryan. Although he is in line to be the first man executed in Nebraska in 14 years, many observers expect more legal challenges to force a delay.

"Sponsor pulls anti-death penalty bill, for now," by Brent Martin for the Nebraska Radio Network.  There is audio at the link.

Debate on the death penalty has paused at the Unicameral so the sponsor of a bill that would eliminate capital punishment in Nebraska gathers more information on accusations that that state used deception to obtain a drug needed of lethal injection.

Questions surrounding the state’s method of obtaining sodium thiopental became a focal point of the debate in the legislature. Sen. Brenda Council of Omaha sponsors LB 276, which would end capital punishment.

Council warned colleagues that they need to pay attention to the controversy that has arisen over the state’s use of a broker to buy sodium thiopental from a foreign manufacturer. Council reminds fellow senators that the manufacturer claims the state obtained the drug under false pretenses.

“So, we’re obtaining this drug knowing its being obtained in a deceitful manner with the intent to deceive,” Council stated during floor debate.

And:

Debate on the death penalty bill could resume later this session

"Mistakes flaw death penalty," is the title of an editorial in today's Lincoln Journal Star.

Debate on the death penalty began in the Legislature last week with Sen. Brenda Council of Omaha homing in on the glaring problem with application of society's ultimate sanction.

People are fallible. As Council put it, "Mistakes are made." Humans cannot devise a system that will operate without error. They never have.

That truth has become devastatingly clear with the advent of DNA testing. Seventeen people who were on death row have been set free after DNA testing proved they were wrongly convicted.

They might have been executed if it were not for the grace of God and scientific advancement.

More than 250 convictions have been overturned nationwide because of DNA testing. In Nebraska, the so-called Beatrice Six who were wrongly convicted in the rape and murder of a Beatrice woman were set free when DNA testing indicated someone else committed the crimes.

The DNA evidence on the error rate in the criminal justice system is new information that has come to light within the lifetime of everyone now serving in the State Legislature.

And:

Council last week asked for a delay in the debate on the death penalty so that more information can be gathered on the legality of how the state acquired one of its lethal-injection drugs.

We hope senators take the time to re-examine their beliefs and assumptions.

Council's LB276, which would replace the death penalty with life in prison, recognizes the reality of human limitations. It deserves to pass.

"The punishment fits some crimes," is the Omaha World-Herald editorial.

For that, Michael Ryan was sentenced to death.

The crime occurred in 1985. When the Nebraska Supreme Court upheld the verdict in 1989, Judge John Grant wrote: "It is hard for this court to conceive of a more senseless and brutal murder." Ryan's execution is set for March 6.

Some acts of violence and cruelty are so unspeakable that the state is justified in imposing the ultimate punishment.

Legislators have been considering Omaha Sen. Brenda Council's bill to substitute life in prison without parole for the state's current penalty of death by lethal injection.

Sincere opposition to capital punishment is voiced by many and must be respected. Legislators on both sides of this difficult question have debated in a sober and thoughtful manner. This truly should be a vote of conscience for lawmakers.

In some states, innocent death row inmates later were exonerated. In Nebraska, there's been little evidence of a rush to judgment. Ryan was convicted nearly 26 years ago. Another death row inmate, Carey Dean Moore, was convicted of shooting two Omaha cab drivers nearly 33 years ago. Their cases have been heard and reviewed by the courts for years.

Earlier coverage of lethal injection issues and the death penalty in Nebraska begins at the link.

Alabama Roundup

Today's Birmingham News carries the editorial, "U.S. Supreme Court sends much-needed message to Alabama about how it treates poor defendants charged with capital crimes."

The U.S. Supreme Court sent the state of Alabama at least two messages last week when justices ruled against the state in the case of Death Row inmate Cory Maples, who missed a deadline to appeal after his lawyers dropped his case without telling him.

First, the high court made clear the state and courts were wrong in denying Maples his day in court. Maples missed a 42-day window to file an appeal after a state court judge ruled against his claims of ineffectiveness of counsel and other problems at trial. But the missed filing was through no fault of his own. Two pro bono lawyers had abandoned Maples' case without notifying him or the state. Copies of the trial court's order sent to them at their old law firm were returned unopened to the court clerk, who did nothing.

"Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," the court said in its 7-2 ruling. "In these circumstances, no just system would lay the default at Maples' death-cell door."

But Alabama's system did blame Maples. Which brings us to the court's second, and more important message: Our state's system of capital punishment is not a just system.

Justice Ruth Bader Ginsburg, who delivered the opinion, made that clear in her criticism of how the state provides -- and in some cases doesn't provide -- lawyers for poor defendants charged with capital crimes.

Among the problems she cited: Alabama requires that a lawyer appointed to defend a death-penalty case only be a member of the state bar and have five years' experience practicing criminal law; no experience with capital cases is required; the state doesn't provide, or require, professional education or training in capital cases; appointed lawyers are underpaid; and Alabama is "nearly alone among the states" in not guaranteeing that poor Death Row inmates have legal representation in postconviction proceedings -- those state and federal appeals after the initial round of "direct" appeals.

The opinion in Maples v. Thomas is available in Adobe .pdf format.  Earlier coverage of the Supreme Court ruling in the Alabama case begins at the link.

"Dothan man to be sentenced for third time in slayings," is the title of a report in the Dothan Eagle written by Matt Elofson.

Lawyers expect to select a jury Monday for the third time to sentence a Dothan man for the slaying of three people.

Attorney David Hogg said his client, 40-year-old Jerry Jerome Smith, had his first two sentences reversed.

And:

The death sentence was reversed because of comments made by some of the relatives of victims in the murders during the jury selection of the trial.

More From Delaware

"State's death penalty should be reconsidered," is the editorial in the Wilmington News Journal.

Gov. Markell was right to commute the death sentence of Robert Gattis. Enough questions had been raised about his sentence to warrant reducing his sentence to life in prison.

And:

The jury in Mr. Gattis' trial split 10 to 2 in recommending the death sentence for his actions. A year earlier, that would have spared Mr. Gattis the death sentence because the law required a unanimous recommendation. But the law was changed because of public outrage over another case a year earlier. Judges were allowed to impose the death penalty despite such split verdicts. That difference of a year raises questions about the arbitrariness of Delaware's death penalty law.

Our society holds that the imposition of the death sentence should be fair and swift. Automatic legal appeals have extended capital cases into decades-long affairs. Rulings, such as the one that recently overturned Jermaine Wright's 1992 death sentence, bring into question the fairness of the process.

These questions will not go away. It is time to rethink Delaware's law.

The News Journal also carries a news article, "Gattis agrees to commutation conditions," by Sean O'Sullivan.

In exchange for his life, Gattis agreed to abandon any future legal appeals and to never challenge in any way his conviction for the May 1990 murder of his onetime girlfriend Shirley Y. Slay. He also had to agree to spend the rest of his life in the maximum security unit at the state prison near Smyrna.

Sitting in the back of the courtroom Wednesday were Shirley E. and Willie Slay, the parents of Gattis' victim.

Gattis did not make a statement and instead answered a series of "yes" and "no" questions from Superior Court President Judge James T. Vaughn Jr. designed to ensure that Gattis' waiver was knowing and voluntary.

At the conclusion, Vaughn made the document Gattis and his attorneys signed agreeing to Markell's conditions an official part of the court record, closing the case.

"It's done. It's done. There is nothing else to say," said Shirley E. Slay, shaking her head as she exited.

And:

Gattis' attorneys Karl Schwartz and John Deckers reiterated that both they and their client were grateful and humbled by Gov. Markell's decision to spare Gattis' life."He doesn't take this lightly," Schwartz said, adding it has added to Gattis' resolve "to do right and to be a better person."

WHYY-FM Newsworks posts, "Before commuting death sentence, Markell met with victim's family."  It's by Shirley Min.  There is audio at the link.

On Monday, the night before announcing his decision to commute Robert Gattis' death sentence to life in prison, Delaware Governor Jack Markell visited with victim Shirley Slay's family.

"It was a very difficult thing to do and I went and apologized to them, but I told them that I wanted them to hear it from me personally."

A judgement call Markell says he felt was the right thing in this case.

"I lost plenty of sleep over it. I read everything very carefully, I prayed about it and it was just, it was an incredibly difficult decision because of the impact on the family of Shirley Slay," said Markell. "In the end, I know, there's a lot of people unhappy about it, but in the end I just was not prepared to go through."

Earlier coverage of Robert Gattis' commutation begins at the link.

News Coverage of the Delaware Commutation

Today's New York Times carries the editorial, "A Death Penalty Commutation."

On Tuesday, Gov. Jack Markell of Delaware commuted the death sentence of Robert Gattis to life without parole. In doing so, he said he gave “great weight” to the careful decision of the state board of pardons to recommend that the sentence be commuted, the first such recommendation the board has made since the death penalty was reinstated there in 1974. As a condition of the commutation, which is supported by a long list of former judges and prosecutors, Mr. Gattis is expected to waive all legal challenges and live out his life in prison.

And:

For one board member, the rationale for life without parole is more basic. “When the taking of life is not required as a matter of self-defense,” he explained, “one cannot ethically or morally take that act.” Commuting Mr. Gattis’s sentence meets the imperative of justice. Imposing the death penalty in his case, as in any case, would have been grossly unjust.

Sean O'Sullivan offers extensive coverage in, "Gattis spared: Markell commutes death sentence to life in prison," for the Wilmington News Journal.

Delaware Gov. Jack Markell on Tuesday spared the life of condemned killer Robert A. Gattis, who was scheduled to die by lethal injection early Friday morning.It is the first time in modern memory, and perhaps the first time ever, that a Delaware governor has commuted a death sentence to life in prison.

And:

The Slay family said they were disappointed by the outcome but accepted it.

"We are going to look at it as the way God wanted it to be," said Slay's mother, who also is named Shirley.

She said Markell met with members of the family personally before he made his decision public Tuesday, and they appreciated the chance to share their side of the story with Markell and explain their feelings and concerns.

Markell put conditions on his offer of commutation, stating Gattis must agree to surrender all future legal appeals and to spend the rest of his natural life in the Maximum Security Unit of Vaughn Correctional Center.

To that end, according to Markell's office, a hearing is expected to be held today in New Castle County Superior Court, where Gattis will formally waive his appellate rights before a Superior Court judge and agree to the conditions set by Markell.

The News Journal also carries, "Markell may avoid voter backlash," by Chad Livengood.

One of the Democratic governor's chief Republican critics doesn't think the governor will be hurt politically by the decision.

"I don't see any political fallout," said House Minority Leader Greg Lavelle, vice chairman of the Delaware Republican Party.

Markell explained his decision to legislative leaders Tuesday during their weekly lunch meeting, Lavelle said.

"It's a difficult decision," said Lavelle, R-Sharpley. "I'm glad I didn't have to make it."

"Delaware governor commutes death sentence," is by Bill Mears at CNN.

Markell said he prayed and met with Slay's family before making his decision. He concluded that "moving forward with the execution of Mr. Gattis is not appropriate." But the commutation "in no way relieves Mr. Gattis of his moral or legal guilt."

Gattis, 49, appeared in person at the clemency hearing last week in Dover, saying he is a changed man, and begging for mercy. "I am not the Robert Gattis who killed Shirley Slay, that's not who I am," he said, according to a transcript of the hearing.

The Board of Pardons said there was merit to Gattis' claims of mistreatment suffered as a child. "We accept that if even half of what has been submitted about Mr. Gattis' childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care," said the state panel.

Gattis' lawyers expressed relief at the commutation. "We are humbled by Gov. Markell's morally courageous decision," said attorney John Deckers. "To our knowledge, no prior Delaware governor has ever commuted a death sentence."

Delaware has executed 15 people since capital punishment was resumed in the United States in 1976. Nineteen male inmates now remain on the state's death row.

Reuters posts, "Delaware governor spares life of murderer," by Barbara Goldberg and Michelle Nichols.  It's via the Chicago Tribune.

The Board of Pardon's move, on which Markell said he acted, marked the first time the board had recommended clemency since the death sentence was reinstated in Delaware in 1974.

MSNBC posts, "Del. governor spares murderer facing execution."

Gattis' plea for clemency was based on new evidence about the physical and sexual abuse he suffered as a youth. He said he has become a new person in prison.

"I'm not the Robert Gattis that killed Shirley Slay. That is not who I am now. I am the Robert Gattis who has two sons I love and respect," he said at his parole hearing last week.

Earlier coverage of the historic Delaware commutation begins at the link.

Commentary on the Mississippi Pardons

Let's start with the editorials and commentary in this post; news coverage, in the next.

Today's Jackson Clarion-Ledger carries the editorial, "Pardons: 'Divine' right trumps victims?"

In his way out the door of the Governor's Mansion, Haley Barbour caused a firestorm of citizen anger by pardoning more than 200 convicted felons.

Barbour seems to have underestimated the amount of citizen ire this decision would cause. It's puzzling on several fronts. For example, as Attorney General Jim Hood noted in temporarily blocking the pardons in court, the Mississippi Constitution may have been ignored by failing to publish 30-days notice about the pardons.

Also, some of these pardons were poorly vetted, for crimes that are still fresh and even premeditated crimes that cannot be simply dismissed as crimes of "passion."

They appear not well researched, which runs against Barbour's history as governor. He has never been so sloppy. Nor in two full terms has he been so insensitive to the politics of a situation.

The Mobile Press-Register editorial is, "Barbour's action was hasty, imprudent and offensive."

Whatever a state's constitution allows, though, usually gives critics little recourse.

That being said, it's going to be up to Mississippi voters to decide whether they are willing to continue to trust their governors with this power. Some politicians are already talking about pushing for a constitutional amendment to change the system, which would need a vote of the people.

Mississippi Attorney General Jim Hood was right to press for a halt to further releases, which a judge granted Thursday. All 200-plus pardons demand a thorough airing. If some warrants were pushed through hurriedly and did not provide sufficient notice, they need to be addressed.

But in the long run, Mississippi's going to have to live with what the law allows -- or act to change it.

Former White House speechwriter Mary Kate Cary writes, "Haley Barbour Was Right to Issue Those Pardons."

Back in the 1990s, I wrote many speeches for Gov. Haley Barbour when he was the head of the Republican National Committee. Now he's finishing his second term as governor of Mississippi and had a lot of people urging him to run for president this year. When you write a lot of speeches for someone, you get to know that person pretty well. Haley Barbour is an honorable, decent man. He's compassionate and treats the people who work for him well. He's also a lawyer, and is one of the smartest people I know in politics.

And:

While I don't know the facts of these cases, nor am I a lawyer, I suspect there's a lot more to the story when it comes to these pardons. As Barbour's office pointed out, the vast majority of those whom he pardoned had already served their full sentences, and his pardons were based on the recommendations of the parole board. I'd bet that at least a few of them were convicted under questionable circumstances, and may or may not have had the benefit of DNA evidence when they were originally tried. I'm sure the governor has seen, as the rest of us have, the increasingly unjust nature of our court system these days. Is there anyone who thinks our criminal justice system isn't tough enough? 

Haley Barbour is a smart, humane man. He understands the need for mercy and compassion in our criminal justice system. He's done nothing wrong.

At ABC News, Huma Khan posts, "Pardon Me: Is Southern Custom Behind Haley Barbour’s Clemencies?"

Four prisoners pardoned by Barbour last Friday worked at the mansion he resided in for eight years. All are convicted murderers.

Mississippi is one of the few states where the “trusty” system is still thriving. Under that system, well-behaved prisoners are allowed to clean, work in the kitchen, wait tables and wash cars at the governor’s mansion, no matter what their crime was.

Proponents say the system helps cut state costs and allows prisoners to put their time to use. North Carolina has a similar program that uses inmates for upkeep of a part of the governor’s residence. South Carolina did the same, but ended its program in 2001 after inmates were found to be having sex in the governor’s residence.

Barbour told The Associated Press in 2008 that it was customary for Mississippi governors to cut short the sentences of inmates who served at the mansion, a tradition that dates back generations. At the time, he faced similar backlash for releasing trusty Michael David Graham, who served 19 years of his life sentence for killing his ex-wife. Graham walked free after working eight years in the governor’s mansion.

The tradition of having inmates work at the governor’s resident is unique to the South, observers say, and is partially inspired by the states’ religious history. Even nationally, the pardoning system, from the state to the federal level, is rooted in some ways in the Judeo-Christian tradition, said P.S. Ruckman, Jr., a professor of political science at Rock Valley College in Illinois, who is writing a book on pardons.

Pardon Power is Ruckman's blog that focuses on clemency issues.  Additional news coverage in the next post.

Earlier coverage of the Mississippi pardons begins at the link.  Related posts are in the clemency index.