The StandDown Texas Project

Jason Pleau to Be Arraigned in Federal Court

"RI inmate in legal tug-of-war to be arraigned in US court where he could face death penalty," is the AP report by Laura Crimaldi.  It's via the Republic.

An inmate who touched off a legal battle between Gov. Lincoln Chafee and federal prosecutors almost a year ago was ordered Tuesday to face a judge in federal court where he faces a possible death penalty prosecution.

Jason Pleau, 34, is scheduled to be arraigned in U.S. District Court in Providence on Wednesday. The arraignment was scheduled after the 1st U.S. Circuit Court of Appeals in Boston issued a written order clearing the way for Pleau's prosecution in federal court.

Pleau's first appearance in federal court, however, is not deterring Chafee from proceeding with plans to appeal the case to the U.S. Supreme Court, said his spokeswoman Christine Hunsinger.

"The governor's position hasn't changed," Hunsinger said. Defense attorney Robert B. Mann also said Pleau's arraignment will not interfere with efforts to ask the Supreme Court to review the case.

Earlier coverage of the Rhode Island - Federal government dispute on Pleau's prosecution begins at the link.  Related posts are in the federal death penalty index.

A State-Federal Standoff Over the Death Penalty

That's the title of Garrett Epps' post at the American Prospect on the Jason Pleau case in Rhode Island.  Here's the beginning:

A principled governor invoking “state’s rights” to defy federal policy.  Aggressive local officials overriding state decisions. A federal court angrily affirming its own power.  An anguished dissent attacking a power-hungry Congress. 

United States v. Pleau has all the elements of a great federalism battle (including, by the way, largely symbolic stakes).  But don’t expect to see Rhode Island Governor Lincoln Chafee’s “state’s rights” stand hailed by Republican conservatives: Chafee is blocking the federal government in order to show his disapproval of the federal death penalty.  The result, decided May 7 by the First Circuit Court of Appeals, is now in the Supreme Court’s in-basket.  Pleau deals with important issues of policy, morality, and history.  But because this is the United States, the language of the dispute is that of federalism—a pastime that Professors Edward L. Rubin and Malcolm Feeley once dubbed “a national neurosis.”

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

Prosecutorial Misconduct Examined in Federal Case From Georgia

Today's Fulton County Daily Report reports, "DOJ investigates 2 prosecutors."  It's by R. Robin McDonald.

The U.S. Justice Department's Office of Professional Responsibility is investigating two former prosecutors with the U.S. attorney's office in Atlanta in connection with allegations of misconduct in a death penalty case, the U.S. attorney of the Northern District of Georgia has confirmed.

U.S. Attorney Sally Quillian Yates told the Daily Report that she reported former Assistant U.S. Attorney Todd Alley, now in private practice, and Matthew Jackson, now an assistant U.S. attorney in Florida, to the DOJ's Office of Professional Responsibility last month after U.S. District Senior Judge Clarence Cooper accused the pair of repeatedly deceiving him during pretrial litigation in the death penalty case of federal inmate Brian Richardson.

Cooper issued a scathing order detailing his problems with the two prosecutors midway through the penalty phase of Richardson's trial, after a jury had found Richardson guilty of the first-degree murder of a fellow inmate. Cooper ruled that prosecutors' deceptions violated Richardson's constitutional rights.

The judge remedied the violation by barring the government from calling expert witnesses who would have challenged Richardson's defense that he is mentally ill. The jury subsequently deadlocked on the death penalty, and on May 2 Cooper sentenced Richardson to life without parole—the outcome that his defense team had sought all along.

Yates said it was the second time she has asked the DOJ's disciplinary arm to investigate Alley and Jackson in connection with Richardson's case. The U.S. attorney said she reported both prosecutors to OPR last year and pulled them off Richardson's prosecution after federal public defenders accused the duo of violating an order Cooper issued in 2010 disqualifying Alley from the case.

The AP report is, "Justice Department investigates 2 ex-prosecutors involved in federal death penalty case in Ga.," via the Republic.

The Justice Department is investigating two former federal prosecutors in Atlanta because of alleged misconduct in a death penalty case, the chief federal prosecutor here said.

U.S. Attorney Sally Quillian Yates said she reported Todd Alley and Matthew Jackson to the department's Office of Professional Responsibility last month after U.S. District Senior Judge Clarence Cooper accused the pair of repeatedly deceiving him during pretrial litigation in the capital case of Brian Richardson, according to The Daily Report.

Cooper issued an order outlining his problems with the two lawyers during the penalty phase of Richardson's trial after a jury had found him guilty of murdering a fellow inmate at the U.S. Penitentiary in Atlanta. The jury later deadlocked on the death penalty, leaving Cooper to sentence Richardson to life without parole.

Related posts are in the federal death penalty and prosecutorial misconduct category indexes.

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.

First Circuit Rules in Rhode Island-Fed Dispute

The ruling in USA v. Pleau is available in Adobe .pdf format.

Reuters posts, "Rhode Island must turn over suspect in death-penalty spat," by Terry Baynes.

Rhode Island Governor Lincoln Chafee must surrender a state prisoner to federal authorities to potentially face the death penalty on charges of killing of a gas station manager, a federal appeals court ruled on Monday.

The Boston-based U.S. Court of Appeals for the 1st Circuit ruled in a 3-2 decision that Chafee could not keep shooting suspect Jason Pleau in state custody to shield him from capital punishment. Ruling otherwise would undermine the federal government's ability to prosecute federal crimes, the court ruled.

"Instead of a place of confinement, the state prison would become a refuge against federal charges," Judge Michael Boudin wrote for the majority.

Pleau was serving an 18-year sentence in state prison for parole violations when he was indicted on federal charges for the 2010 murder and robbery of David Main outside a bank. The federal government asked for custody of Pleau under a federal law that governs the transfer of prisoners between states and the U.S. government. But Chafee refused, asserting Rhode Island's policy of opposing the death penalty.

In 2011, a three-judge panel of the 1st Circuit had upheld Pleau and Chafee's right to resist the federal request. But a majority of the full 1st Circuit reached the opposite conclusion on Monday, finding the federal government's right to prosecute federal crimes trumped the state's interest in opposing capital punishment.

"R.I. murder suspect to be tried in federal court," by Derek J. Anderson for the Boston Globe.

An appeals court ruled Monday that a man being held in Rhode Island on a murder charge is to face federal charges, and a possible death sentence, despite efforts by Rhode Island’s governor to keep the case under state jurisdiction, according to court documents.

And:

“Were Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution,’’ the First Circuit Court of Appeals ruled.

“He is currently serving an 18-year term in Rhode Island prison and, if the writ were denied, might agree to a state sentence of life in Rhode Island for the robbery and murder.

“Even if Pleau served only his current 18-year term, needed witnesses for federal prosecution could be unavailable two decades from now. Instead of a place of confinement, the state prison would become refuge against federal charges,’’ the appeals court ruled.

After the court’s rejection of Rhode Island’s move to keep Pleau in state custody, US Attorney Peter F. Neronha released a statement:

“Today’s ruling by the First Circuit Court of Appeals affirms our position from the outset, that is, that the governor does not have the right to prevent a defendant properly charged by a federal grand jury from appearing in federal court to face federal charges,’’ said Neronha.

"Appeals court rules RI must surrender murder suspect who could face death penalty," by Katie Mulvaney in the Providence Journal.

The Rhode Island affiliate of the American Civil Liberties Union issued this statement:

"We are extremely disheartened by today's appellate court ruling. Like the two dissenters in that ruling, we do not believe that the federal government should be able to obtain all the benefits of, but evade its obligations under, the federal Interstate Agreement on Detainers law.

“We do not seek to minimize the pain that David Mainâ's family has suffered, but it is wrong for the federal government to impose on our state a policy that Rhode Island eliminated more than a century and a half ago."

Earlier coverage of the Pleau case begins at the link.  Related posts are in the federal death penalty index.

Life Sentence in Federal Death Penalty Trial in Georgia

The Atlanta Journal-Constitution reports, "Life sentence for inmate in killing of cellmate."  Its by Bill Rankin.

A federal prisoner who killed his cellmate because he was a child molester was spared the death penalty Thursday when a jury hearing the case could not reach a unanimous verdict.

After deliberating for almost two days, the federal jury in Atlanta could not arrive at a unanimous verdict as to whether Brian Richardson should live or die. Without a unanimous verdict, the sentence of life without release is automatic in federal court.

A month ago, the jury convicted Richardson of murdering 60-year-old Steven Obara in July 2007 by stabbing him nine times and then strangling him at the U.S. Penitentiary in Atlanta. Richardson told federal agents he killed Obara because Obara was serving time for child molestation.

And:

Since 1997, federal juries in Atlanta have imposed two death sentences -- one against an inmate who killed a prison guard, the other against a man who raped and killed a nurse practitioner.

The AP report is, "Federal jury spares life of convict who killed fellow inmate," via the Florida Times-Union.

Prosecutors argued the death penalty was the only way to punish Richardson for the cold-blooded murder. Defense lawyers maintain that Richardson was mentally ill at the time and urged a jury to grant him mercy so he could seek redemption.

Richardson could have been the first person sentenced to death in federal court since June 2011.

Related posts are in the federal death penalty index.

First Circuit Hears Rhode Island-Federal Dispute

"Federal appeals court hears RI murder case," is the AP filing by Laura Crimaldi.  It's via the Boston Globe.

A lawyer for Rhode Island Gov. Lincoln Chafee on Wednesday asked a federal appeals court to uphold his authority to refuse to surrender a state inmate who faces a possible death-penalty prosecution in federal court.

The legal tug-of-war over Jason W. Pleau, 34, went back before the U.S. 1st Circuit Court of Appeals in Boston, where a federal prosecutor argued the Woonsocket man should be handed over to federal authorities to stand trial for accusations that he fatally shot a gas station manager outside a bank. A five-judge panel is deciding the case.

Federal prosecutors have not said whether Pleau would face the death penalty if convicted of fatally shooting David Main, 49, in 2010. Rhode Island does not have the death penalty. Chafee has said prosecutors want to try Pleau in federal court to expose him to the death penalty.

Chafee, an independent, is believed to be the first governor to refuse to surrender a state inmate under a federal law governing the transfer of prisoners among states and the U.S. government. The National Governors Association and Council of State Governments have filed papers in court supporting Chafee.

Chafee's lawyer, Claire Richards, said the provision of the law allowing governors to refuse to surrender inmates does not carve out exceptions in cases where federal authorities seek to take prisoners into custody. She said 47 states and the federal government are bound by the law, which is called the Interstate Agreement on Detainers Act.

"The United States must comply with all the terms of the agreement," Richards said.

Chafee has called Pleau a "career criminal," but in court papers argues that he is upholding the state's opposition to the death penalty by exercising his authority to refuse to surrender Pleau.

And:

The custody battle over Pleau dates to June when Chafee refused a request from federal prosecutors to surrender Pleau so he could be arraigned in U.S. District Court in Providence. The fatal shooting took place at the threshold of a federally insured bank, giving federal authorities the jurisdiction to prosecute Pleau.

After Chafee's denial, prosecutors asked U.S. District Court Judge William E. Smith to have Pleau surrendered. Smith sided with prosecutors, but Pleau's federal court arraignment was cancelled after the appeals court granted a stay of the transfer order.

In October, the appellate court's three-judge panel issued a 2-1 decision in favor of Pleau, saying Chafee has the right to keep him in state custody. Two months later, the court vacated that decision at the request of prosecutors and decided to put the case before a full panel of judges.

If the appeals court rules against Pleau, his defense lawyers are asking the panel to delay his transfer to federal custody so he can appeal his case to the U.S. Supreme Court.

Earlier coverage of the Jason Pleau case begins at the link.

Federal Death Sentence of Female Overturned

AP reports, "Judge removes 1 of 2 women on federal death row."  It's written by Ryan J. Foley, via the St. Louis Post-Dispatch.

A judge removed one of the two women on federal death row Friday, saying lawyers for the Iowa woman convicted in the 1993 execution-style murders of five people failed to present evidence about her troubled mental state that could have spared her from capital punishment.

In a 448-page ruling, U.S. District Judge Mark Bennett threw out Angela Johnson's death sentence, saying her defense lawyers were "alarmingly dysfunctional" during the 2005 trial that made her the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the punishment in 1976.

Attorney General Eric Holder and aides must determine within 60 days whether to appeal or continue seeking the death penalty for the 48-year-old mother of two, said assistant U.S. Attorney C.J. Williams, who prosecuted the case. If they do not appeal, there will be a trial to determine whether Johnson will be sentenced to death. In that trial, her lawyers would be allowed to present evidence about her mental health that was omitted in 2005. If they decline to seek the death penalty, Bennett could sentence Johnson to life in prison without parole.

Bennett's ruling doesn't throw out her convictions _ he said evidence of her guilt was overwhelming.

"Judge: Iowan may not belong on death row," is by Jeff Eckhoff for the Des Moines Register.

Government lawyers could appeal Bennett’s ruling, make a second push for the death penalty or drop the effort to execute Johnson and leave her with a life sentence in prison.

Iowa does not have the death penalty. However, Johnson and Honken were tried in a federal court, and the U.S. allows the death penalty in certain types of cases.

Johnson, who now resides in a Texas prison hospital, was the first woman sentenced to death after the federal government began seeking capital punishment in 1988. Until Thursday, she had been waiting with Skidmore, Mo., resident Lisa Montgomery to see who would become the first woman put to death by the U.S. government since 1953.

A January report by retired Ohio Northern University law professor Victor Streib shows a total of 58 women were on death row across the country at the end of 2011, 18 of them in California, which hasn’t executed a woman since 1962.

"Judge throws out death sentence," by Nick Hytre in the Quad City Times.

Assistant U.S. Attorney C.J. Williams, who prosecuted both Johnson and Honken, said Friday the decision on how to proceed in the case will be made by Department of Justice officials in Washington, D.C.

Honken, 44, of Britt was convicted in a separate trial and also sentenced to death and is incarcerated in Terre Haute, Ind.

Johnson had filed 64 claims for postconviction relief of her death sentence. Evidence on the motion was heard in four phases of hearings in 2011 that included 19 days of testimony from 58 witnesses and thousands of pages of legal briefs.

Bennett found four instances in which decisions made by Johnson’s defense team were prejudicial, involving errors regarding psychological evidence of Johnson’s mental health.

Related posts are in the federal death penalty and female indexes.  Law Professor Victor Streib's latest edition of Death Penalty for Female Offenders is available at the link in Adobe .pdf format.  It was updated earlier this year.

Questions in Another Federal Prosecution

Today's Atlanta Journal-Constitution reports, "Capital case goes forward -- with new prosecution team."  It's by Bill Rankin.

Federal prosecutors this week began presenting to jurors their death penalty case against an inmate who killed his cellmate because he was a child molester.

But recent court filings disclose that the Justice Department's Office of Professional Responsibility is investigating prosecutors who initially handled the case. This includes one prosecutor who jokingly suggested to an inmate that he would be rewarded if he were to stab one of the defendant's lawyers, a court filing said.

This excerpt refers to defendant Brian Richardson:

Last month, Richardson's defense team sought to bar the death penalty from being a sentencing option in the case because of alleged misconduct by two prosecutors who once worked on the case -- Todd Alley and Matthew Jackson, both of whom no longer work in the U.S. attorney's office in Atlanta.

Jackson's alleged misconduct occurred in 2010 during a recorded phone conversation he had with an inmate expected to testify for the prosecution against Richardson. During the call, Jackson jokingly suggested to the witness that he should try to stab a member of Richardson's defense team and said he would reward the inmate for killing the defense attorney, the motion said.

"Even if said in jest," the defense motion said, "it was unethical and unprofessional and revealed a lack of judgment that no doubt infected Mr. Jackson's dealings with other inmate witnesses seeking to strike a bargain with the government."

Jackson, now a federal prosecutor in Florida, did not return phone calls seeking comment.

Alley's alleged misconduct occurred after U.S. District Judge Clarence Cooper disqualified him after finding Alley had or appeared to have a personal interest in the case because an inmate was alleging that Richardson had made threats to kill Alley. In his disqualification order, Cooper forbid Alley from participating "in any prosecutorial decision-making or strategizing in this matter."

Alley violated the order by having phone conversations with Jack Morris, who was expected to testify about Richardson's threats against Alley, the defense motion said. This included Alley giving Morris a cover story to keep other inmates from thinking Morris was cooperating with prosecutors, the motion said.

Related posts are in the prosecutorial misconduct index.

Prosecutors Like RICO

That's the title of Guillermo Contreras' report in today's San Antonio Express-News.  "Series of crimes can be tied under federal law," is the subtitle.

One Texas group reportedly fatally shot a U.S. Consulate employee in Ciudad Juárez, across the border from El Paso. Another killed 24 people in San Antonio. A third allegedly was on the take from a contractor for years.

La Cosa Nostra? Not quite.

But prosecutors went after these groups, the Barrio Azteca gang, the Texas Mexican Mafia and elected officials in El Paso in a crackdown on corruption, respectively, with a tool that was custom-made for the mob: the Racketeer Influenced Corrupt Organizations (RICO) Act.

Entering its 42nd year, the RICO Act remains one of the country's toughest and most sweeping laws. Part of it allows fraud victims to file civil suits and recover up to three times the damages they suffered.

The law has resulted in wins for the government — including the criminal convictions of members of the mob and the MS-13 gang — and occasional losses like the 1979 acquittal of members of the Hell's Angels.

The RICO Act allows federal prosecutors to stitch together crimes over 10 years, from extortion to murder to bribery, in a single case. It also allows them to tie an organization's leaders to the acts of their underlings. It imposes a minimum of 20 years in prison for those found guilty of two of the crimes included in the RICO law.

“The RICO statute allows prosecutors to focus on organizations that engage in a whole series of crimes,” said Assistant U.S. Attorney Joey Contreras. “It makes our job a little bit easier. Basically, the statute outlaws a group of people coming together and committing a whole series or patterns of crimes.”

The law took center stage here Dec. 8, when authorities announced the RICO Act had been used to take down 17 members of the Texas Syndicate in San Antonio, leaving 14 of them facing up to life in prison, or the federal death penalty.

And:

RICO prosecutions are not that common in Texas.

An analysis of Justice Department data by the Transactional Records Access Clearinghouse at Syracuse University shows 1,373 people were prosecuted under RICO nationwide between 2005 and 2010, but only 56 of them were prosecuted in Texas, 34 in the Western District of Texas, which is headquartered in San Antonio.

Related posts are in the federal death penalty index.

First Circuit Court to Examine Rhode Island - Federal Dispute En Banc

"Full appeals court to hear RI shot-at-bank case," is the AP report bybLaura Crimaldi.

The full panel of a federal appeals court on Wednesday decided to hear the case of a man stuck in a legal tug-of-war between prosecutors and Gov. Lincoln Chafee over a possible death penalty prosecution.

The order by the U.S. 1st Circuit Court of Appeals in Boston vacates an October decision siding with Jason Pleau. The 34-year-old Pleau is accused of fatally shooting gas station manager David Main, 49, outside a bank last year. Rhode Island doesn’t have the death penalty.

The full panel will hear the case on April 4. The court said prosecutors and lawyers for Pleau and Chafee can submit additional written arguments to the panel.

In October, the appellate court’s three-judge panel issued a 2-1 decision in favor of Pleau, saying Chafee has the right to keep him in state custody. Prosecutors last month asked the court to reconsider the ruling.

Chafee says prosecutors want to try Pleau in a federal court to expose him to the death penalty. Prosecutors have not said whether they’ll seek the death penalty if Pleau is convicted. In a statement, Chafee called it “entirely appropriate’’ for the full court to hear and decide the case and said he looks forward to presenting his case.

Pleau’s attorney, Robert B. Mann, said he knew the appeals court might decide to put Pleau’s case before a full panel of judges. The office of Rhode Island U.S. Attorney Peter F. Neronha had no immediate comment.

The custody battle over Pleau dates back to June when Chafee refused a request from federal prosecutors to surrender Pleau so he could be arraigned in U.S. District Court in Providence. The fatal shooting took place at the threshold of a federally insured bank, giving federal authorities the jurisdiction to prosecute Pleau.

Chafee, an independent, cited the state’s long opposition to the death penalty in refusing the request. Pleau has agreed to plead guilty to state murder charges and serve life in prison without parole.

After Chafee’s denial, prosecutors asked a federal district court judge to order Pleau’s surrender. The judge sided with prosecutors, but Pleau’s federal court arraignment was canceled after the appeals court sided with him and granted a temporary stay of the transfer order.

"1st Circuit to re-hear prisoner custody battle," by Matt Yas for Massachusetts Lawyers Weekly.

The full 1st U.S. Circuit Court of Appeals has agreed to rehear the case of an accused killer’s custody battle that has pitted federal prosecutors against the governor of Rhode Island.

Today’s ruling vacates an earlier 1st Circuit panel decision that ruled the defendant would remain in state custody.

A three-judge panel on Oct. 13 ruled 2-1 in favor of Jason Pleau, who stands accused of fatally shooting a gas station manager outside a Citizens bank last September. Gov. Lincoln D. Chafee’s June decision to keep Pleau in state custody made him the first governor to refuse a request by federal officials to hand over a prisoner. U.S. prosecutors have said they would consider asking for the death penalty.

Earlier coverage of the Rhode Island case begins at the link.  Related posts are in the federal death penalty index.

Use of Federal Death Penalty in Western District of New York

"William Hochul puts death penalty to frequent test," is the Buffalo News report by Dan Herbeck.

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York.

So far, none of those cases has led to an execution.

But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas.

In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years.

So far, Washington has not approved any of Hochul's cases for a death penalty prosecution, though a dozen decisions are pending before the U.S. attorney general. But it often takes months from the time a U.S. attorney files a potential death penalty case until the attorney general decides whether to pursue the death penalty. As a result, the Buffalo and Rochester federal courts where Hochul files cases spent more than $661,000 during his first full year in office on lawyers and other defense costs for defendants in the early stages of death penalty-eligible cases.

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases.

And:

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years.

Also:

Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals.

According to court statistics, federal death penalty prosecutions can cost up to eight times as much as a non-death penalty prosecution.

Death penalty experts estimate the Justice Department and the courts spend at least $86 million a year on federal death penalty cases. They can only estimate because the Justice Department declines to say how much of its $28 billion annual budget goes toward death penalty prosecutions.

Related posts are in the federal death penalty and geographic disparity index.

NYT Editorial on Military Death Penalty

Today's New York Times carries the editorial, "The Military and the Death Penalty."

Racism in the application of capital punishment has been well documented in the civilian justice system since the Supreme Court reinstated the penalty in 1976. Now comes evidence that racial disparity is even greater in death penalty cases in the military system.

Minority service members are more than twice as likely as whites — after accounting for the crimes’ circumstances and the victims’ race — to be sentenced to death, according to a forthcoming study co-written by David Baldus, an eminent death-penalty scholar, who died in June.

The analysis is so disturbing because the military has made sustained, often successful efforts to rid its ranks of discrimination. But even with this record, its failure to apply the death penalty fairly is more proof that capital punishment cannot be free of racism’s taint. It is capricious, barbaric and discriminatory, and should be abolished.

The number of capital cases in the military system is small: of 105 cases in which the death penalty might have been applied between 1984 — when the military revamped its death penalty process — and 2005, 15 defendants were sentenced to death. (Another capital case in 2010 was not included in the study.) Eight have since been removed from death row because of various legal errors, and two were granted clemency.

In its analysis, the new report found a significant risk that minority service members would be given the death penalty in cases in which there was at least one white victim, while a similarly situated white defendant would more likely be spared.

This connection between race and the death penalty is notably different from the results found in state criminal courts. A landmark study of state cases by Mr. Baldus and others in the 1980s showed that a death sentence often hinged not on the race of the defendant, but on the race of the victim. People accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims.

Clearly, the military has not succeeded in keeping racial bias out of its judicial process. The broad discretion of judges and jurors in military tribunals and the system’s lack of transparency may make it harder to root out discrimination.

And:

The last military execution was in 1961. The de facto moratorium has not made the country or the military less secure. The evidence of persistent racial bias is further evidence that it is time for the military system to abolish the death penalty.

The Baldus-Grosso study on race and the military death penalty is noted in a recent three-part series by McClatchy News, available at the link.

McClatchy Series on Military Death Penalty

The three-part series appeared in a number of McClatchy newspapers, yesterday.  They are also available at the McClatchy DC Bureau website.  The articles are all written by Marisa Taylor with contributions from Tish Wells.

"Many death sentences in U.S. military overturned."

In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.

The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.

But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.

Now, federal defenders who took over his case say they've found new evidence that his original military lawyers should have discovered. If they're successful, Gray could join a growing number of soldiers, airman and marines who have been spared execution.

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.

The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.

In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.

Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.

Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty. The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.

"Study: Racial disparities taint military's use of death penalty."

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They're all minorities.

The racial imbalance in the military's death penalty isn't new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system. The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.

A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

The professors concluded that the military's efforts in 1984 to reform its capital system "failed to purge the risk of racial prejudice from the administration of the death penalty."

"There is no suggestion here that any participant in the military criminal justice system consciously and knowingly discriminated on the basis of the race of the accused or the victim," the study's authors said in their report. "However, there is substantial evidence that many actors in the American criminal justice system are unconsciously influenced by the race of defendants and their victims."

The study, led by professor David Baldus of the University of Iowa College of Law and associate professor Catherine Grosso of the Michigan State University College of Law, was obtained by McClatchy and is set to be published late this year in the peer-reviewed Journal of Criminal Law and Criminology.

Of the 16 death sentences the military has handed down since 1984, the study found that race appeared especially to be a factor in five cases that involved multiple victims with at least one victim who was white.

"Military capital cases deserve better defense, critics say."

When military jurors sentenced former Marine Lance Cpl. Ronnie Curtis to death, they had every reason to believe that he deserved to be executed. No one disputed that he'd stabbed and killed his superior officer and the officer's wife inside their home. The only real question was why.

But what the jury learned at trial made the crime seem even more inexplicable. After all, he had a good Christian upbringing by caring parents. No one could have predicted the murders based on his background.

On appeal, his lawyers discovered a very different story. They found that Curtis' adoptive father was frequently drunk, including during the lawyers' visit to their client's childhood home in Kansas. When questioned about his son, Curtis' father showed off the horsewhip he'd used to beat him after adopting him at age 2.

In capital cases, such details could be enough to save a defendant from death row. Yet the realities of Curtis' troubled childhood, along with evidence that he was drunk when he committed the murders, were never presented at his sentencing at Marine Corps Base Camp Lejeune, N.C.

"The sentence hearing may have been adequate for an absence without leave case, but it was woefully lacking and totally unacceptable in a capital murder case," wrote Judge Walter Cox III of the U.S. Court of Appeals for the Armed Forces. "Upon further reflection, I am convinced that this representation is unacceptable, substandard, inadequate and ineffective. The result is a sentence that is unreliable."

The 1997 reversal by one of the most conservative, law and order appellate court systems in the country would be among the first of many. Ten of the 16 men whom the military has sentenced to death since 1984 have been resentenced to life in prison.

Related posts are in the federal death penalty, military, mitigation, and race indexes.

This is also a great time to point out the CAAFlog blog, created by Dwight Sullivan.  It's motto is, "Military justice blogs are to blogs as military music is to music."

Catherine Grosso will be among the participants in the University of Iowa College of Law Symposium, "Batson at Twenty-Five," noted at the link.

The Quiet Revolution In The Death Penalty Debate

That's the title of Carrie Johnson's NPR report for All Things Considered.  You can listen to the audio; a transcript is also available.

There are 58 people on federal death row in Terre Haute, Ind. But for now none appears likely to face the ultimate punishment, at least not on President Obama's watch.

The Justice Department is reviewing its lethal injection protocols because of a shortage of a key drug. While that study is underway, authorities have backed away from setting execution dates.

Over the last few years, a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level, says death penalty expert David Bruck.

"I think it's fair to say that the federal government seeks the death penalty less often now than it did five or 10 years ago, but that's simply part of a national trend," says Bruck, a law professor at Washington and Lee University.

Just consider, Bruck says, a state quite close to the seat of national government.

"Virginia — which is the state that's executed the second largest number of people since the death penalty came back in the 1970s — has only added one new defendant to death row in the last three and a half years," he says.

And:

The federal prison system told a judge last month they're still working through changes to the execution protocol because of that drug shortage and the changes aren't final. That court filing was first reported by Politico.

Until those changes are finalized, death row inmates like James Roane, convicted of taking part in gang murders in Richmond, Va. in the 1990s, won't get a new execution date.

Roane's lawyer, Paul Enzinna, is suing the prison system along with several other attorneys representing inmates on federal death row.

"The issue at the heart of our lawsuit is that the...question of the risk that the inmates being executed will suffer unnecessary pain," Enzinna says. "And that that is a violation of the Eighth Amendment," which prohibits cruel and unusual punishment.

That lawsuit is on hold while the court waits to hear about changes the federal prisons may make to the lethal injection protocol.

The last federal execution happened in President George W. Bush's first term, in 2003. Louis Jones Jr. was a military veteran convicted and sentenced to death for raping and killing a woman soldier.

But not everything related to the federal death penalty is stuck in neutral gear. Last month, after more than two years of study, the Justice Department quietly adjusted the directions it gives federal prosecutors who want to seek the death penalty.

The changes didn't get much attention, but they represent a turnaround in two main areas, Bruck says.

"This administration is much more willing to listen to what the local prosecutors who actually have to prosecute the cases in court are saying about when the death penalty should be sought," he says.

So federal officials in Washington are consulting more with prosecutors across the country. That follows a controversy from the Bush presidency when Attorney General John Ashcroft sometimes overruled the decisions of U.S. attorneys who chose not to seek the death penalty.

Related posts are in the federal death penalty and lethal injection indexes.

Commentary on Rhode Island - Federal Dispute

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

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

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

And:

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

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

Also:

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

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

Sixth Circuit Overturns Federal Death Sentence in Michigan

The Detroit Free Press reports, "Federal court throws out death sentence in 1997 Michigan murder case."  It's written by Tresa Baldas.

The federal government has struck out again in pushing the death penalty in Michigan.

A federal appeals court on Wednesday threw out a death sentence for Marvin Gabrion, who was convicted in the 1997 killing of a woman whose handcuffed and chained body, weighted with cinder blocks, was found in a lake in a national forest in western Michigan.

The ruling came almost a year after a federal jury in Detroit spared Timothy O'Reilly from the death sentence, concluding he deserved life in prison instead for killing an armored car guard during a botched robbery at a federal credit union in Dearborn. O'Reilly's codefendants also faced execution, but the government decided in March not to seek death in those cases.

In the Gabrion case, the U.S. 6th Circuit Court of Appeals ruled that a judge erred in barring the defense from telling jurors that Gabrion would have faced life in prison if the state tried the case.

And:

"There is no doubt that he murdered her and her infant daughter in June 1997 while awaiting trial for raping her," the federal appeals court wrote. "We conclude, however, that the District Court did err ... by refusing to allow Gabrion's counsel to argue for mercy ... on the ground that Gabrion could not have received the death penalty if the body had been found 227 feet away, outside the (Manistee) National Forest."

Meanwhile, death penalty opponents are wondering why the federal government is pursuing death cases in non-capital states.

"In essence, what they're doing is they're targeting non-capital states and imposing their will in a state where the people have spoken and said, 'We don't want the death penalty,' " said prominent criminal defense attorney Anthony Chambers, who has handled federal death penalty cases. "If the people wanted the death penalty, then there would be one."

"Appeals court overturns rare Mich. death sentence," is the AP report written by Ed White.  It's via the Chicago Tribune.

A federal appeals court overturned a death sentence Wednesday for a western Michigan man who was convicted of drowning a young woman in a remote lake to prevent her from pursuing a rape case against him.

All three members of the panel upheld Marvin Gabrion's murder conviction. But two, while calling him a "vile" killer, said the sentencing phase of his extraordinary 2002 trial in Grand Rapids federal court must start from scratch.

Gabrion's lawyers should have been allowed to tell jurors that he would not have faced a death sentence if prosecuted in state court because Michigan doesn't allow capital punishment, the appeals court said.

U.S. District Judge Robert Holmes Bell had barred Gabrion's defense team from making that pitch during the sentencing phase. It may not have made a difference in the ultimate result, but the appeals court said it was a legitimate argument for the jury, which unanimously chose the death penalty.

"The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder," said judges Gilbert Merritt and Karen Nelson Moore of the 6th U.S. Circuit Court of Appeals.

"The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant's proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty," the judges said.

In a vigorous dissent, Chief Judge Alice Batchelder said she would have affirmed the murder conviction and sentence.

And:

Federal prosecutors and the FBI in Grand Rapids took the case. They had many investigative tools that local authorities lacked, including a grand jury to compel witnesses to give testimony and return an indictment.

"We're reviewing the opinion and considering our options and consulting with U.S. Department of Justice in Washington," U.S. Attorney Don Davis told The Associated Press.

The government could ask the full appeals court to reconsider the decision, a request that is rarely granted. Otherwise, a new jury would be chosen strictly to sentence Gabrion to death or give him a life sentence. Meantime, he will remain in custody.

The 6th Circuit ruling in USA v. Gabrion is available in Adobe .pdf format. 

Related posts are in the federal death penalty index.

First Circuit Order in Rhode Island Case

"Chafee granted full-party status in Pleau appeal," is the title of Katie Mulvaney's report in today's Providence Journal.

A three-judge panel of the 1st U.S. Circuit Court of Appeals on Monday granted Governor Chafee’s bid to become a full party in an accused murderer’s appeal of a court order demanding that the state surrender him to federal custody.

Judges Juan R. Torruella, O. Rogeriee Thompson and Michael Boudin issued an order allowing Chafee to enter Jason Wayne Pleau’s appeal with no explanation.

U.S. Attorney Peter F. Neronha’s office had moved Friday to block Chafee from becoming a party, arguing the request came too late in the game, particularly since the governor did not try to intervene in lower court proceedings.

The three judges heard arguments Thursday in Pleau’s appeal of a U.S. District Court order that Chafee must turn Pleau over to federal authorities to face trial, and potentially the death penalty, for the September murder and robbery of gas station manager David D. Main outside a Woonsocket bank.

Claire Richards, Chafee’s chief counsel, told the court that prosecutors had chosen to seek custody of Pleau under a law that governs the transfer of inmates between states. Once they invoked that agreement, they must abide by all its terms, including a provision that a governor has the authority to deny a request for custody, she said.

The government cannot, Richards said, seek a court order as an alternative means to get Pleau when it dislikes Chafee’s response, as prosecutors have done in this case.

The AP filing is, "Appellate panel says Chafee may join appeal in custody battle over RI murder suspect," via the Republic.

A three-judge panel of the 1st U.S. Circuit Court of Appeals says Gov. Lincoln Chafee may join the appeal in a custody battle over a Rhode Island murder suspect who could face the death penalty on a federal charge.

Chafee had been seeking a more prominent role in the legal tug-of-war over Jason Pleau (plew), who's accused of murdering a gas station manager outside a bank last year.

And:

Chafee, who opposes the death penalty, wants to keep Pleau in state custody. Pleau has agreed to plead guilty to state murder charges and serve life in prison without parole.

Earlier coverage of the state federal jurisdictional dispute begins at the link.

Hearing in the Rhode Island Standoff

"Lawyer tells appeals panel Chafee has right to refuse transfer of murder suspect to federal system," written by Katie Mulvaney is in today's Providence Journal.  The article has extensive coverage of the hearing for readers who want more detail.

A lawyer for Governor Chafee argued Thursday that he has the right to refuse to surrender a murder suspect to federal authorities under an agreement governing the transfer of inmates between states.

Claire Richards, Chafee’s chief counsel, told a three-judge panel of the 1st U.S. Circuit Court of Appeals that federal prosecutors have two options when seeking custody of an inmate in state prison. They can get a court order forcing a state to relinquish custody, or they can invoke the Interstate Agreement on Detainers, a federal law that sets the government on par with states, Richards said.

In the case of accused murderer Jason Wayne Pleau, Richards said, prosecutors opted to pursue custody through the interstate agreement by placing a detainer on Pleau. Prosecutors now must abide by all the agreement’s provisions, including one that gives the governor authority to refuse a custody request, she said.

The government cannot, Richards said, seek a court order as an alternative means to get Pleau when it dislikes Chafee’s response, as prosecutors have done in Pleau’s case.

And:

Of the 216,679 federal inmates, 60 are under a federal death sentence, according to the U.S. Bureau of Prisons. The last person executed under the federal system was Louis Jones Jr., a decorated Army veteran who kidnapped, raped and bludgeoned Tracie Joy McBride with a tire iron on Feb. 18, 1995. He died by lethal injection in 2003.

The Boston Globe reports, "R.I. tries to bar defendant transfer to US."  It's by Milton J. Valencia.

A lawyer for Governor Lincoln D. Chafee of Rhode Island argued before a federal appeals court panel in Boston yesterday that the state had a right to refuse to turn over a defendant charged with murder to federal authorities, a move intended to protect the man from the death penalty.

The governor exercised his discretion on a public policy basis and refused the request,’’ Claire Richards, Chafee’s chief legal officer, told the three-member panel of the US Court of Appeals for the First Circuit.

And:

It is believed to be the first case testing a governor’s refusal to hand over a defendant under a decades-old Interstate Agreement Detainers Act, which allows for the US government to act like a state in the handing over of defendants.

But Donald Lockhart, a lawyer for Rhode Island US Attorney Peter Neronha, argued that the governor’s office has no standing in the case and that the US government was exercising its right to prosecute because the homicide occurred under its jurisdiction.

"Prosecutors oppose move by Chafee to join appeal in custody battle over RI murder suspect," is the AP report, via the Republic.

An appeals court must decide whether to turn Pleau over to federal authorities or honor Chafee's decision to keep him in state custody. Chafee opposes the death penalty. Pleau has agreed to plead guilty to state murder charges and serve life in prison without parole.

Ealier coverage of the standoff between state and federal officials begins at the link.

An Update From Rhode Island

Today's Providence Journal reports, "Lawyers in D.C. debating death penalty in R.I. murder case."  It's written by W. Zachary Malinowski.

Federal prosecutors and defense lawyers met before the Capital Case Unit of the Justice Department in Washington, D.C., on Monday in the case of Jason Wayne Pleau, who was indicted by a federal grand jury in the robbery and fatal shooting of a Woonsocket gas station manager.

It is the role of the Capital Case Unit, comprising senior Justice Department lawyers, to consider whether federal prosecutors will seek the death penalty or life in prison for Pleau.

Representing the office of Peter F. Neronha, the U.S. Attorney for Rhode Island, were Adi Goldstein, deputy chief of the criminal division, and William J. Ferland, an assistant federal prosecutor. Pleau’s lawyers also attended the hearing. They are David P. Hoose and Robert B. Mann.

Mann said the meeting lasted about an hour. He declined to provide any specifics because it was closed to the public.

And:

On Thursday, federal prosecutors and lawyers from Governor Chafee’s office will square off before the 1st Circuit Court of Appeals in Boston. Last month, Chafee refused a request by Neronha’s office to transfer Pleau from the Adult Correctional Institutions to federal custody, citing the state’s longstanding opposition to the death penalty.

“In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution. I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal-justice system are capable of ensuring that justice is served in this matter,” Chafee said in a letter to Neronha.

Also:

On June 23, Chafee announced that he would not surrender Pleau, now being held at the Adult Correctional Institutions as a parole violator, because it could expose Pleau to the death penalty. He says the state justice system is “capable of ensuring that justice is served in this matter.”

On June 30, acting on a petition by the U.S. Attorney’s office, U.S. District Court Judge William E. Smith ordered the governor to turn over Pleau to federal authorities, ruling that under the Constitution’s so-called Supremacy Clause, federal law trumps state law.

The governor said he would comply with the order.

Mann and Hoose then asked the Appeals Court to stay Smith’s order, arguing the case raised questions about a conflict between the powers of the governor in the transfer of defendants and those of federal authorities.

On July 7, a three-judge panel of the Appeals Court stayed the surrender order until it can hear arguments July 28.

Earlier coverage of the case begins at the link.  Related posts are in the federal death penalty index.

Rhode Island and Federal Government in Dispute Over Death Penalty

Today's Providence Journal reports, "Faceoff looms over suspect."  It's written by Katie Mulvaney.

U.S. Attorney Peter F. Neronha’s office moved Monday to secure a court order requiring the state turn over an accused bank robber and murderer to federal authorities so he could face trial — and possibly the death penalty — for his alleged crimes.

Assistant U.S. Attorney Adi Goldstein petitioned U.S. District Court for a writ of habeas corpus demanding that the state place Jason W. Pleau in federal custody so he can be tried for conspiring with a Massachusetts couple to rob and murder a gas station manager as he went to make a bank deposit in September.

The prosecutor’s request comes days after Governor [Lincoln] Chafee refused to hand Pleau over to the federal government. To do so would go against Rhode Island’s longstanding rejection of capital punishment, Chafee said.

Hours before the petition was even filed, Pleau’s lawyers called on Judge William E. Smith to reject it. Short of that, David P. Hoose and Robert B. Mann, Pleau’s lawyers, requested a hearing.

And:

Chafee said his decision to refuse to place Pleau in federal custody was motivated, in part, by Pleau’s lawyers’ representations that he is willing to plead guilty to murder and robbery in state court in exchange for life in prison without the possibility of parole.

Also:

The Rhode Island Council of Churches and the Rhode Island Affiliate of the American Civil Liberties Union, meanwhile, joined a half-dozen other groups in praising Chafee and urging Neronha to stop any efforts to seek the death penalty against Pleau.

“The governor’s courageous action reflects and renews this proud heritage. In saying this, we do not in any way seek to minimize the tragedy that David Main’s family has suffered. But we cannot condone the federal government’s blatant effort to impose on our state a policy that Rhode Island has rejected for more than a century-and-a-half,” the groups wrote.

Dizzying Price for Seeking the Death Penalty

That's the title of Jim Dwyer's report in today's New York Times examining the costs of a federal death penalty prosecution in New York that ended with a life sentence.  Here's an extended excerpt:

In the middle of February, 300 men and women of voting age answered a special summons for jury duty at the federal courthouse in Cadman Plaza in Brooklyn. They were ushered into a grand ceremonial courtroom to see if they might be candidates to serve as jurors in the case of the United States of America v. Vincent Basciano. His nom de mob is Vinny Gorgeous.

Over the next few days, an additional 800 people would be brought to the courtroom for the same purpose. Each was paid the ordinary juror fee of $40 for a day’s service. Multiplied by 1,100 people, the federal government paid $44,000 just to find people who might — possibly, maybe — end up as jurors in the Basciano case.

It was as much a bonfire of cash as a trial, consuming, by reasonable estimates, more than $10 million in public money for a single murder case.

More than a year ago, the federal judge presiding over the case said it would be expensive and futile — that is, a waste of time and money — for the government to seek capital punishment for Mr. Basciano. Whatever happened in the trial, he would never leave prison alive.

As the judge, Nicholas G. Garaufis, pointed out in his letter, Mr. Basciano already was serving life without parole for other crimes “under extremely restrictive conditions in one of the nation’s most secure penal institutions.”

The judge’s letter was received, to no apparent effect. The decision to go for the death penalty had been made by the Justice Department when George W. Bush was president, and ratified by the Obama administration.

The murder trial concerned the shooting, on the orders of Mr. Basciano, of another gangster who had run up many infractions of some code of good mobster behavior. In due course, after other mobsters testified against him, Mr. Basciano was found guilty. This week, the jury voted unanimously that he should serve life without parole.

It took them just two and a half hours to decide that he should not be executed. The jurors filled out an eight-page verdict sheet, and it is worth the attention of people in Washington who make decisions whether to seek the death penalty. The jurors’ decision was rooted in a sense of fairness: all 12 jurors, in deciding against capital punishment, noted that at least three other people had been directly involved in the same murder ordered by Mr. Basciano, and none of them faced execution. The victim was a violent criminal, a circumstance that contributed to his death. And Mr. Basciano would be in a federal “super-max” prison, confined to a cell for 23 hours a day.

“The jurors were able to see this in two and a half hours,” said Richard Jasper, one of Mr. Basciano’s lawyers. “Some of the informants had murdered a whole football team of people. Why was Basciano death-penalty-worthy and these other characters weren’t? Because he didn’t cooperate?”

On the verdict sheet, 10 of the jurors signed onto a handwritten note: “There are other members of organized crime that have admitted to an equal or greater number of serious crimes that are not facing the death penalty, much less incarcerated.”

Any trial costs money. Because capital punishment is the ultimate penalty, the law requires far more precautions than it does for a garden-variety murder case. So instead of one chief defense lawyer, the court appointed two lead lawyers who specialize in death-penalty cases to represent Mr. Basciano; both were paid $187 an hour. A third lawyer also was named to the defense team, and for a part of the case, a fourth lawyer wrote legal briefs.

The final bills for the defense have not been submitted, but as of April, they had reached $4.3 million. The trial transcript ran to more than 9,000 pages, and it was provided to lawyers every day.

Related posts are in the cost index.

Holder Responds to State Attorneys General

"Federal prisons run out of key execution drug," is an AP report available from numerous outlets.  An condensed version with Texas reporting is at the Austin American-Statesman.

The federal government has told state attorneys general that it has run out of a key execution drug and is exploring alternatives, dashing states' hopes of obtaining a federal supply of the drug. Concerns about the shortage were highlighted Thursday when Ohio executed a man with another drug never before used alone in an execution.

States wrote U.S. Attorney General Eric Holder in January asking for help obtaining sodium thiopental. The anesthetic is used by virtually all death penalty states, but supplies ran short when its U.S. manufacturer stopped production.

"At the present time, the federal government does not have any reserves of sodium thiopental for lethal injections and is therefore facing the same dilemma as many states," Holder said in a March 4 letter sent to the National Association of Attorneys General and obtained by The Associated Press.

Holder said the lack of an available supply of sodium thiopental "is a serious concern."

Justice Department spokeswoman Alisa Finelli said the agency had no comment. The attorneys general also declined to comment and a Bureau of Prisons spokesman said the agency did not have an immediate response.

Holder said federal officials, including the Bureau of Prisons' general counsel, were researching alternatives, including "any necessary changes to current federal death penalty procedures."

The immediate impact of the federal shortage of sodium thiopental is minimal. A lawsuit challenging the federal government's injection procedures is pending, and the U.S. government has not executed anyone since 2003.

Oklahoma and Ohio have switched to pentobarbital, a surgical sedative, as an alternative. Oklahoma uses it along with drugs to paralyze inmates and stop their hearts. Ohio uses it alone.

And:

Other states are likely to make a similar switch to get around the problems of obtaining sodium thiopental, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

Some states, including Arizona, California, Georgia and Tennessee, have obtained supplies of sodium thiopental from England, although the British government has since banned its export for use in executions.

In February, death row inmates in Arizona, California and Tennessee sued the Food and Drug Administration to block imports of the drug. The lawsuit claims the FDA has knowingly allowed state corrections officials to import sodium thiopental that has not been approved by the agency.

The federal government will either have to look overseas for a source or switch to an alternative like pentobarbital following administrative hearings, said Ty Alper, associate director of the Berkeley law school's death penalty clinic.

The federal government also must contend with the 2005 challenge to the government's execution procedures still pending in federal court.

"I don't think there's likely to be any federal executions any time soon," Alper said Thursday.

The last person put to death by the U.S. government was Louis Jones Jr., a Gulf War veteran executed in 2003 and sentenced to die for raping and killing a female soldier.

Jones was only the third person — after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza — put to death by the federal government since it resumed executions in 2001 after a 38-year suspension.

You can view Attorney General Holder's letter to the National Association of Attorneys General via Scribd.

Earlier coverage of the state attorneys general letter to the Department of Justice begins at the link.  Related posts are in the lethal injection index.

The Tyrone Williams Case Ends With Resentencing

It started as a high visibility 2006 federal death penalty prosecution, following a horrific 2003 episode in which 19 illegal aliens died after being smuggled into Texas in the back of a tractor trailer.  

"Texas: New Sentence in Smuggling," is the AP brief from Tuesday's New York Times.

A truck driver was resentenced to nearly 34 years in prison on Monday after a federal appeals court last year overturned the life sentences he received in America’s deadliest human smuggling attempt, in which 19 illegal immigrants died. The new sentence for the driver, Tyrone Williams, is equal to the longest prison term he had received in the case, for another count that was upheld on appeal. Prosecutors said that Mr. Williams heard the immigrants screaming as they were succumbing to heat inside his tractor trailer, but that he refused to free them.

"Driver in 2003 smuggling deaths resentenced," is the Victorial Advocate report by Gabe Semenza.

A federal judge on Monday resentenced Tyrone Williams to 34 years in prison for his role in the 2003 deaths of 19 illegal immigrants.

Because Williams, 40, likely will appeal the sentencing, the case is far from closed. Monday's hearing only added another twist to a landmark trial.

In May 2003, Williams abandoned his sealed tractor-trailer in Victoria. Inside: dead or dying illegal immigrants, the byproduct of a botched smuggling attempt.

The 40-year-old became the first person federal prosecutors targeted for the death penalty under a 1994 immigration law.

That law states if anyone transports, smuggles or harbors illegal immigrants in this country, and the act results in death, the convicted can face execution.

Of the 64 human smuggling tragedies that ended in death between 1994 and 2002, however, no smuggler ever faced the death penalty until Williams.

And:

Craig Washington, a 68-year-old former Texas state senator and Houston congressman, represents Williams.

Washington, who was in Victoria the morning law enforcement found the bodies, later stepped away from the case because of health reasons and rejoined it in November. He is widely credited for steering the second jury away from the death penalty.

"The government has spent $7.2 million prosecuting and attempting to get the death penalty for one man," Washington said after the hearing on on Monday. "It turns out that money was all wasted. Today's sentencing was the best that we could have hoped for."

Susan Carroll writes, "Trucker gets 34 years in immigrant deaths," for the Houston Chronicle.

U.S. District Judge Lee Rosenthal sentenced 40-year-old Tyrone Williams to a 405-month term in connection with the deaths of 19 illegal immigrants in Williams' insulated tractor-trailer truck in May 2003.

Williams broke down before Rosenthal pronounced the sentence, crying and calling the deaths an "accident."

"I live with regret every day of my life," Williams said.

Earlier coverage begins the post, "Fifth Circuit Overturns Tyrone Williams' Sentence."  Related posts are in the federal death penalty index.

The Case of Bruce Webster

The Dallas Morning News has posted, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen."

The U.S. Supreme Court has turned away the appeal of an Arkansas man who helped kidnap, rape and bury an Arlington teen alive in 1993, although a federal judge said evidence shows that he is mentally retarded.

The high court banned the death penalty for the mentally retarded eight years ago. In their ruling today, the justices offered no comment in rejecting the appeal of Bruce Carneil Webster.

Webster, 37, was sentenced to death more than 14 years ago and has since tried to persuade federal judges that he is mentally retarded.

A panel of the 5th U.S. Circuit Court of Appeals said in an April ruling that Webster had exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent. And because everyone agrees he's guilty, he still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," 5th Circuit Judge Jacques Wiener Jr. wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Steven Wells, Webster’s attorney, said he was disappointed that the Supreme Court opted not to hear the case. But he said that doesn't mean the fight is over.

“The government in their briefs suggested that there were some alternative avenues for relief and I expect that we’ll be pursuing one or more of those,” Wells said.

Among the possibilites, he said, is an appeal through the federal courts in Indiana, where Webster is currently being held.

“It is not over and we will not give up until … we’re allowed to have a court review of this new evidence of mental retardation on its merits, which no court has done yet,” Wells said.

Evidence recently provided by the Social Security Administration shows three federal doctors determined Webster was mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was kidnapped and killed.

One potential avenue to correct the sentence would be clemency. This is a federal death penalty case, so any request for clemency -- a commutation of the death sentence to a life sentence -- would be directed to the President of the United States.

Clemency has been utilized in two Texas capital cases in which there was a determination that the individual had mental retardation.  In March 2004, Governor Rick Perry commuted the death sentence of Robert Smith.  Experts had determined that Smith had mental retardation and was thus barred from execution under the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.  A court could have set aside Smith's death sentence, but the Harris County District Attorney's office asked that Smith's sentence be commuted.  In 2007, the same circumstances led Governor Perry to commute the death sentence of Doil Edward Lane, after it was determined that Lane had mental retardation.

Earlier coverage of the Bruce Webster case begins at the link.  Related posts are in the mental retardation index.

A Note on the Bruce Webster Case

I've had several questions and comments from readers regarding the case of Bruce Webster.  The Dallas Morning News highlighted the case in a recent news article and editorial, noted at the links.

The Webster case is a federal death penalty case, prosecuted under and controlled by federal law, rather than a state death sentence.  

The Morning News editorial called on the Texas Legislature to pass legislation that would spell out the process to determine whether or not a defendant has mental retardation in capital cases.  Such a law, if passed by the Texas Legislature, would apply only to state prosecutions.

The Texas Legislature passed legislation in 2001 to ban the execution of those with mental retardation, but the legislation was vetoed by Governor Rick Perry.  One year later the Supreme Court ruled in Atkins v. Virginia that the death penalty was unconstitutional for those with mental retardation. 

In the four subsequent Texas legislative sessions, lawmakers have been unable to agree on legislation dealing with the issue; establishing a process for those currently on death row to investigate and examine claims of mental retardation, as well as a process for those individuals charged with capital murder who need to present evidence of mental retardation.  In both instances, state courts deal with the MR issue on an ad hoc basis.

Related posts are in the mental retardation index.

More on the Case of Bruce Webster

Today's Dallas Morning News carries the editorial, "Mental retardation and the death penalty."

Bruce Carneil Webster is a brutal thug, one of three whose pursuit of two men who had stiffed them on a drug deal ended with the kidnapping, rape and hellish murder of a 16-year-old honor student.

Shed no tears for Webster: He beat the Arlington girl with a shovel, dragged her into a grave in Arkansas, stripped her, doused her with gasoline and burned her alive.

He should never see the outside of a prison.

Nonetheless, new evidence about his mental capacity, uncovered 13 years after his conviction, raises serious questions about whether Webster, who indisputably committed the crime, can be legally put to death.

The U.S. Supreme Court should review Webster's case, and the Texas Legislature should adopt clearer procedures to determine the mental capacity of defendants accused of capital crimes. To do otherwise would be a serious breach of justice.

And:

This newspaper would like to see the state Legislature pass measures that would allow a judge or separate jury to hear evidence to determine whether a defendant is mentally retarded. And the Supreme Court would be wise to intervene to make sure a man is not executed despite evidence showing mental retardation. Even in the most reprehensible and revolting crimes, the Constitution still applies.

Earlier coverage is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

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

San Francisco Gang Cases to Test DOJ's Death Penalty Policy

That's the title of Dan Levine's news article in Law.com's Recorder.  LINK

Erick Lopez, aka "Spooky," is a hard-core MS-13 gang member who killed two people in San Francisco's Excelsior district, say federal prosecutors. He is eligible for the death penalty.

Luis Herrera, aka "Killer," is also allegedly part of MS-13, and he too is eligible for capital punishment. But while prosecutors say Herrera took part in a different murder -- the February 2009 killing of Moises Frias at the Daly City, Calif., BART station -- they don't think Herrera pulled the trigger.

Lopez and Herrera are two of six San Francisco Bay Area MS-13 defendants for whom Attorney General Eric Holder Jr. must ultimately decide whether to seek capital punishment. The relative culpability of each is a key factor the Justice Department will consider, so where Holder draws the line among those six MS-13 defendants will be one measure of prevailing death penalty attitudes in Washington, D.C., say attorneys involved in the case.

Over the past few weeks, pairs of defense lawyers representing some of the accused have filed into a conference room on Golden Gate Avenue to pitch Northern District of California U.S. Attorney Joseph Russoniello on why their clients don't deserve to die. U.S. District Judge William Alsup has set a Sept. 15 deadline for the DOJ to make up its mind.

Before becoming attorney general, Holder was critical of racial disparities in death penalty enforcement. And while he has said he is personally opposed to capital punishment, during confirmation he promised to enforce the law. At a news conference this past spring in Oakland, he called it "the toughest decision I have to make as attorney general."

Holder has green-lighted fewer death cases than his Republican predecessors, but he is still authorizing them. He OK'd seven out of 61 eligible death cases last year, or 11 percent, according to statistics provided by Federal Death Penalty Resource Counsel, an organization that assists defense lawyers nationwide. Former Attorney General John Ashcroft -- viewed as an aggressive death penalty proponent -- authorized 22 percent of 631 cases, while Alberto Gonzales said yes to 19 percent, and Michael Mukasey to 13 percent.

In the Northern District, Holder pulled back on one gang case last year and accepted a plea deal after trial had already begun. But he didn't retreat on two others. A jury convicted Dennis Cyrus last year on murder in furtherance of a racketeering enterprise, but declined to impose the death penalty. And in San Jose, a death case is currently under way against Ahn The Duong, accused of killing eight people while leading a crew of jewel robbers.

The MS-13 case appears to be the first Northern District case in which Holder will make the original call. First brought in 2008 against 29 defendants (many of whom are not charged with capital offenses), the case is typical of the huge gang prosecutions under Russoniello and former U.S. Attorney Kevin Ryan.

Per protocol, the local U.S. Attorney makes a recommendation to the DOJ's capital case unit in Washington. That group does its own workup, and the attorney general's review committee then considers the case and votes, said Hastings College of the Law professor Rory Little, who served on the committee under Janet Reno.

Holder will ultimately accept or reject their conclusions.

And:

Little, who has studied the federal death penalty and is skeptical as to its utility, served on Reno's committee with a capital prosecutor from Florida. Even though the two had radically different opinions about capital punishment, he said, they only disagreed in one out of 20 cases.

Reno never overruled a U.S. Attorney's recommendation against death, he said, while Ashcroft and Gonzales did. A spokesman for Holder did not respond to questions about current DOJ policies.

Related posts are in the federal death penalty index.

The Case Of Bruce Webster

"Mental retardation evidence may not save Arlington teenager's killer from death chamber," is the title of Jason Trahan's report for the Dallas Morning News.  It appeared in the Sunday edition.

Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.

A judge on the 5th U.S. Circuit Court of Appeals agrees that new evidence, including psychological examinations, appears to show that Webster is mentally retarded.

But although the U.S. Supreme Court banned the death penalty for the mentally retarded eight years ago, 5th Circuit Judge Jacques Wiener Jr. and his two colleagues agree that they can't stop Webster's execution. The panel says he exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent.

And since everyone agrees he's guilty, Webster still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," Wiener wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Experts say the case is headed for a constitutional showdown.

"It's an outrageous situation," said David Bruck, a death penalty expert at Washington and Lee University law school in Virginia. "Sometimes the law just doesn't fit the facts. This is one of those times."

Steven Wells, Webster's attorney, said he plans to ask the Supreme Court to untangle the mess.

"If we're allowed to bring this new evidence before a fair and impartial judge, they will find that Bruce Webster is mentally retarded," Wells said.

And:

Evidence claiming Webster is mentally retarded was a major part of his 1996 criminal trial, and has been a part of his appeals.

At his trial, jurors heard defense experts and Webster's family say he is mentally retarded. Prosecutors acknowledged his low IQ, but argued that he was able to adapt to his lack of intellect and knew right from wrong. A fellow inmate testified he saw Webster appear to be reading law books and making notes from them while in prison.

After the jury found him guilty, jurors were asked whether they thought Webster was or could be mentally retarded. Four of the 12 answered "yes."

U.S. District Judge Terry Means ruled then that Webster was not mentally retarded and sentenced him to death. His attorneys appealed.

In 2002, the Supreme Court clarified laws on mental retardation and execution in Atkins vs. Virginia, ruling that executing the mentally retarded constitutes cruel and unusual punishment. Webster's attorneys cited that decision in their appeal, but the 5th Circuit soon upheld Webster's death sentence, relying on the same arguments and evidence used at trial.

In February 2009, Webster's attorneys received records from when Webster applied for Social Security benefits to treat a sinus condition and headaches.

Those records, from a year before the killing, show that three doctors who examined him had found him to be mentally retarded.

And:

The "Kafkaesque" situation, as Wiener describes it, arises out of changes made to federal criminal law in 1996. After the Oklahoma City bombing and the first World Trade Center attack, Congress put strict limits on the number of times federal inmates can challenge their sentences.

To file more than one appeal, an inmate has to have new information "sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the [defendant] guilty of the offense," the law states.

In the 5th Circuit's ruling, Wiener wrote: "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded."

The 5th Circuit ruling is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

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

Fifth Circuit Overturns Tyrone Williams' Sentence

The Fifth Circuit ruling in USA v. Williams is in Adobe .pdf format.

"Trucker will get new sentence in smuggling case," is the title of Mike Tolson's report in the Houston Chronicle.

A truck driver whose actions led to the deaths of 19 illegal immigrants in South Texas in 2003 will return to federal court for a new sentence after a federal appeals court tossed out his life sentence Thursday.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

The appeals court left untouched Williams' sentences of 34 years and 20 years that were handed down on related charges. The court also did not reverse the capital transporting conviction for which he received the life sentence or find merit in other appeals issues.

His attorney, Seth Kretzer, said he does not know what the effect of the 5th Circuit decision will be other than to lower the penalty to something below life without parole.

"Williams' conduct did not fall within the scope of the Federal Death Penalty Act," Kretzer said. "The death penalty should have never applied. I would assume the judge would now order a new (pre-sentence report). What that resentencing will look like, I don't know."

The appeals court said Williams' reckless disregard for the safety of 74 immigrants trapped in a trailer he was pulling through South Texas did not rise to the level of conduct necessary to become a death-eligible crime. Such conduct, the court explained, must involve an overt expression of violence. Negligence, no matter how extreme, would not meet the requirement.

The AP report, "Life sentences overturned in smuggling deaths case," is by Juan Lozano, via Google News.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

And:

In total, Williams was convicted on 58 counts of conspiracy, harboring and transporting illegal immigrants. Jurors settled on life sentences for 19 counts of transporting illegal immigrants. Prosecutors dismissed 19 harboring counts that Williams had been convicted of by jurors. On the remaining counts, U.S. District Judge Lee Rosenthal gave Williams sentences ranging from 20 years to nearly 34 years.

Earlier coverage of the case begins with this post, now inaccurately titled.

Human Smuggling Case Finally Ends

Seven years after a deadly human smuggling operation, a plea agreement ended the final prosecution in the case.  One federal death sentence was sought -- but rejected by jurors -- among the 14 defendants.

"Man sentenced to 14 years in deadly smuggling case," is the title of Juan Lozano's report for AP, via Google News.

The last of more than a dozen people indicted for their roles in the deadliest human smuggling attempt in U.S. history was sentenced to prison Monday, more than seven years after the bodies of nearly 20 illegal immigrants were discovered in a tractor-trailer.

Octavio Torres-Ortega was given a 14-year term for participating in a smuggling ring that packed more than 70 illegal immigrants into the back of the stifling truck in May 2003 and tried to transport them from southern Texas to Houston.

The immigrants were found after the driver abandoned the trailer at a truck stop in Victoria, about 100 miles southwest of Houston. Seventeen people, including a 5-year-old boy, were found dead in the trailer. Two others died later. All the deaths were attributed to dehydration, overheating and suffocation.

A tearful Torres-Ortega, one of 14 people indicted in the case, apologized before being sentenced.

And:

Of the 13 others indicted in the case, 11 either pleaded guilty or were convicted at trial and two others had charges against them dismissed.

The driver of the trailer, Tyrone Williams, was the only defendant whom prosecutors had sought the death penalty against. Jurors chose to sentence him to life in prison in January 2007.

Mary Flood writes, "Sentence ends case in 2003 migrant deaths," for today's Houston Chronicle.

For some the case is a symbol of many migrant deaths; for others the tragedy bolsters their determination to see immigration laws changed or enforced. For law enforcement it's satisfying to see the end; and for others, like the families of the victims and the officers who first responded to the awful scene, the horror of the loss will always be with them.

“This case is symbolic, unfortunately, because the largest number died in one incident. But for many years, hundreds have died each year in the deserts and the Rio Grande,” said Nestor Rodriguez, a University of Texas at Austin professor who studies immigrant death.

And:

“This was a case of overwhelming sadness and grief that highlighted the danger and complexity of the massive smuggling going on,” said University of Houston law professor Michael Olivas.

“But really this is like catching one trout in a big stream and dissecting it,” said Olivas, who specializes in immigration law. “There are many more trout in the stream that go uncaught and it's sad at every turn.”

There have been other mass smuggling deaths. In 2002 the decomposed bodies of 11 were found in a grain railway car in Iowa. In 1987, 18 died sealed in a railway car discovered in West Texas

The Victoria case led prosecutors to ask for the death penalty for truck driver Tyrone Williams, an immigrant from Jamaica. A jury that started deliberations with 19 seconds of silence in honor or the dead, sentenced Williams to life in prison instead.

Most of the other defendants got 12- to 23-year sentences, one got time served, one was acquitted and one case was dismissed.

Earlier coverage of the case begins with this post.

At the Supreme Court

The Court today rejected petitions to examine two death penalty cases.  In the Kevin Keith case from Ohio, the AP reports, "Court won't hear inmate's claim of innocence," via Google News.

The Supreme Court won't hear an Ohio man's arguments that he will be wrongfully executed for fatally shooting three people.

The high court on Tuesday refused to hear Kevin Keith's appeal. Keith is scheduled to be executed in September.

Keith's lawyers wanted justices to review the evidence in the killing of three people in a 1994 shooting in northern Ohio.

They say courts have never heard evidence that could exonerate him. That includes an alternate suspect who boasted he was going to carry out the killings, an enlarged photo of Keith used during a picture lineup and witnesses who say Keith was elsewhere.

Keith's attorneys have issued the following statement:

"We are disappointed that the U.S. Supreme Court has declined to hear Mr. Keith's appeal.   However, the Court's denial is not an indication of how strong the facts are supporting Mr. Keith's innocence claim involving faulty eyewitness identification and an alternative suspect.   Less than 1% of all petitions are accepted, and as the Supreme Court rules state, a petition is rarely granted when the problem is that the lower court decided the facts wrong.  Indeed, no court has ever had the entirety of the new evidence of Mr. Keith's innocence before it, nor has it ever been presented to a jury. Since Mr. Keith's execution is scheduled for this September 15th, his fate may rest in the hands of the Ohio Board of Pardons and Paroles and Governor Strickland, who we trust will do everything they can to ensure that an innocent person is not executed in our State."

Earlier coverage of the Kevin Keith case begins with this post.

The Court also refused to review a federal death sentence.  The AP report is, "High Court Turns Down Appeal In Rogue Juror Case," via WJZ-TV

The Supreme Court on Tuesday rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror's misconduct.

The justices did not comment in turning down Brandon Basham, who was sentenced to death for kidnapping and killing 44-year-old Alice Donovan in 2002. The foreman on Basham's jury was held in contempt of court by the trial judge after it was learned that she called five news organizations and made 71 other calls to two fellow jurors, despite repeated warnings from the judge to refrain from discussing the case with anyone.

In the case from South Carolina, U.S. District Judge Joseph F. Anderson Jr. found that the behavior of juror Cynthia Wilson, was so outrageous that he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. Anderson said he would have put Wilson in jail for six months if she did not have four children at home.

But when Basham asked for his death sentence to be thrown out as a result of Wilson's conduct, Anderson refused, and the 4th U.S. Circuit Court of Appeals in Richmond, Va., backed him up.

The case had attracted some attention lately because Solicitor General Elena Kagan -- now the nominee to replace Justice John Paul Stevens -- opposed Supreme Court review.  An earlier AP report was titled, "Kagan: No need for court review of rogue juror," via Google News.

And when Basham took his plea to the Supreme Court, Solicitor General Elena Kagan agreed that the judge had made the correct call. The high court, to which Kagan has since been nominated, could say as early as Tuesday whether it will hear Basham's case.

It is no surprise that the government is seeking to preserve what it already has won, especially after the time and expense of a capital punishment trial.

Basham's guilt in a brutal, senseless crime is not in dispute, as even his lawyers concede. Basham was convicted by a jury and Chadrick Fulks pleaded guilty to kidnapping and killing 44-year-old Alice Donovan during a two-week crime spree after the pair escaped from a Hopkins County, Ky., jail in 2002. Fulks also has been sentenced to death.

They also have pleaded guilty to killing 19-year-old Marshall University student Samantha Burns in West Virginia.

The claim that Basham is raising at the Supreme Court deals only with the actions of juror Wilson, a nurse from Lyman, S.C., in the penalty phase of his trial.

The court has previously ruled that the presence of a biased juror is so serious that it requires a verdict to be thrown out.

Basham and the government disagree over whether Wilson actually was biased and tried improperly to sway other jurors who might not have favored a death sentence.

Wilson testified that her calls to the media were intended to spur stories that women shopping alone should be careful, since Donovan was abducted from a Wal-Mart parking lot and Burns from a mall in Huntington, W.Va.

But Basham said the testimony from Wilson, her husband and a television news producer Wilson called suggested that she was interested in publicity for herself and was also worried that some jurors might not vote for a death sentence.

A Roundup of Cost Items

Chicago Public Radio station WBEZ-FM reports, "Cook County Attorneys Running Out of Money to Try Death Penalty Cases," produced by Tony Arnold 

Defense attorneys and prosecutors with Cook County are running out of money to defend cases involving the death penalty. County commissioners are scheduled to talk about the issue at today's board meeting. Pat Reardon  is with the public defender's office. He says the State of Illinois is behind in paying nearly $6 million to the courts related to death penalty cases.

And:

Reardon says his office alone has about 120 death penalty cases pending.

A spokesman with the Cook County Treasurer's office says the public defender has $150 left in its account to handle the cases.

Cost was a factor in "Judge Asks U.S. to Consider Forgoing Death Penalty in Imprisoned Mobster’s Trial," written by A.G. Sulzberger.  It appeared in the May 13 edition of the New York Times.

A federal judge overseeing the trial of a notorious mobster already serving life in prison is asking the Justice Department to reconsider seeking the death penalty on the new charges.

In a letter sent Thursday to Attorney General Eric H. Holder Jr., the judge, Nicholas G. Garaufis of United States District Court in Brooklyn, wrote that the pending capital trial of the mobster, Vincent Basciano, on charges including murder had already cost the government more than $3 million in legal expenses, though it will not begin until next year.

“The possibility of a death sentence ensures that these costs will grow substantially,” he wrote.

In 2008, Judge Garaufis sentenced Mr. Basciano, a former acting boss of the Bonanno crime family who is known as Vinny Gorgeous, to life in prison without the possibility of parole after his conviction on charges including attempted murder.

“The remaining charges pending against Basciano are extremely serious, as are the crimes of which he has been convicted,” Judge Garaufis wrote. “But Basciano is already sentenced to life imprisonment. He is designated to serve his sentence under extremely restrictive conditions in one of the nation’s most secure penal institutions.”

The Justice Department did not respond to a request for comment. George R. Goltzer, a lawyer for Mr. Basciano, said the letter surprised and pleased him.

Whether to seek the death penalty has been a charged issue in New York, involving questions of limited resources and the sensibilities of local juries.

James Alan Fox writes, "Death penalty kills the budget," in his Crime & Punishment blog at the Boston Globe.

Among the 869 sundry amendments to the Massachusetts House budget bill is a proposal, sponsored by Rep. James Miceli, to reinstate capital punishment in the Commonwealth. “A capital idea!,” you say? “A real savings for the beleaguered Massachusetts taxpayers!,” you hope? Well, I wouldn’t bank on it.

A 32-year veteran of the Massachusetts House of Representatives, the Wilmington democrat is a rock-solid law and order guy, and proud of it. For years he has yearned to see the death penalty restored in Massachusetts, a state that has not executed anyone since 1947 when two men were electrocuted at Charlestown State Prison. Feeling thwarted by House leadership in getting a full hearing for a capital punishment bill, Miceli chose the unconventional route of a budget bill add-on. Ironically, it the proposal were to become law, the state budget would be severely strained.

Micelli’s amendment resurrects former Governor Mitt Romney's capital punishment bill from 2005. Romney's proposal attempted to eliminate the chance of error by constructing a foolproof system informed by science, such as DNA and other high-tech approaches, to achieve a “no-doubt” standard. The layers of safeguards, including a tandem of top-notch defense attorneys, wide latitude in hiring experts, appeals and post-conviction review by panels of specialists, would have made the state's capital punishment machinery the most expensive in the nation. When Romney called his proposal a "gold standard," he wasn't kidding, at least about the gold part.

Notwithstanding my reluctance to judge justice purely in terms of dollars and cents, there is one absolute truth about capital punishment: it costs a state millions to establish and manage the process. When a prosecutor decides to seek the death penalty, the government incurs tremendous expense, not so much related to the execution itself, but associated with the trial and appellate review. Capital murder cases tend to involve more legal motions, more expert witnesses, and longer trials, including a separate penalty phase for the jury to decide between life imprisonment and the death penalty. And if the sentence is to be death, the per inmate cost of incarceration on death row is substantially greater than that for the general prison population.

And:

Gov. Romney didn’t get very far in his effort to reintroduce capital punishment in Massachusetts, nor did Miseli in his most recent attempt. The Miceli-sponsored add-on was quickly and strategically eclipsed by an overriding amendment to send the capital punishment proposal for further study, which is typically the death sentence for unwanted legislation.

Related posts are in the cost index.

Editorial Roundup

There are also editorials from the Washington Post focusing on Virginia and national trends, the Philadelphia Inquirer, the Salina Journal in Kansas, and Alabama's Birmingham News.

Sunday's Washington Post carried, "A year for more executions."  It references the Death Penalty Information Center 2009 report, noted here.

VIRGINIA WAS one of 11 states that put an inmate to death in 2009. The state executed three prisoners, including D.C.-area sniper John Allen Muhammad, contributing to the first spike in executions since 2005. Nationwide, 52 prisoners were put to death in 2009, up 41 percent from the 37 executed during 2008.

Part of the increase can be attributed to an artificial drop in the number of executions in 2008 when states enacted de facto moratoriums as the U.S. Supreme Court weighed the constitutionality of lethal injections.

Still, the continued reliance on this unnecessary and barbaric punishment is regrettable, especially because of the continued risk that innocent men and women could be put to death. Indeed, nine inmates who had spent years on death row were fully exonerated in 2009, thanks in large part to the increasing use and sophistication of DNA evidence.

And:

While the number of death row inmates in the federal system increased to 58 -- three times the number that existed at the beginning of the Bush administration -- the size of the death row population in the states continued to drop and stood at 3,279. More than 1,400 such inmates are held in California, Florida and Texas.

New Mexico took the commendable step of abolishing capital punishment in the state. Sadly, Maryland lawmakers debated such a step but failed to garner the votes for passage. Instead, they passed legislation that authorizes the death penalty only in cases where DNA or videotaped evidence corroborates guilt. This toughening of the standards is welcome, but lawmakers should not abandon the quest to erase the death penalty from the state's books.

"Death row diminished," is the title of an editorial in today's Philadelphia Inquirer.

States are sentencing fewer defendants to death, a likely result of a system that is increasingly costly and unreliable.

Nationwide last year, the fewest death sentences were handed out - 106 - since the death penalty was reinstated in 1976. It is the seventh straight year of decline. Ten years ago, 284 defendants were sentenced to death.

Since the use of DNA evidence has become more prevalent, it is growing clearer with each passing year that the death penalty is unreliable. Since 1973, 139 people have been freed from death row, primarily due to to irrefutable scientific evidence of their innocence. Ninety-one of those condemned prisoners have been released since 1993.

Nine men were freed from death row last year alone, after spending a combined 121 years behind bars for crimes they did not commit.

A system that sentences 139 innocent people to death cannot be counted on to deliver justice fairly. Those 139 defendants avoided execution, but there's convincing evidence that at least one person, Cameron Todd Willingham of Texas, was put to death in 2004 for arson deaths that turned out not to be a case of arson at all. Undoubtedly there have been more like him.

Eleven states last year considered abolishing the death penalty; New Mexico was the only one of those states to outlaw capital punishment. New Jersey abolished it in 2007, after spending more than $200 million on a system that executed no prisoners.

Thirty-five states, including Pennsylvania and Delaware, still have the death penalty. But of those 35, only 11 carried out executions in 2009. Nearly half of them occurred in Texas.

Today's Salina Journal carries, "Death versus dollars."  The editorial is signed by the newspaper's Editor & Publisher, Tom Bell.

Kansas lawmakers will start talking about eliminating the death penalty this month, but discussions will not be based on moral perspectives. They will be about money.

That's the basis for new death penalty debates across the country as more states face shrinking budgets.

According to a recent report using figures from Kansas' indigent defense fund, it costs the state four times more in legal fees to seek the death penalty than to not pursue it. Today, capital punishment cases cost Kansas taxpayers more than $1 million. Reasons for the higher cost include lengthier trials, additional lawyers, more expert witnesses and more legal maneuvers.

That's not the end of it. The state Judicial Council's Death Penalty Advisory Committee reported late last year that it takes an additional $1,000 a year to house a death penalty inmate in required isolation compared with keeping him in the general prison population.

Currently there are 10 people on Kansas' death row. No one has been executed since the death penalty was re-enacted in 1994.

The costs of prosecution and imprisonment stick out in a state budget that gets tighter by the day.

And:

It is sad that matters of life and death in the Kansas Legislature will boil down to dollars and cents, rather than debate on whether mankind can trump the Almighty in such matters.

Whatever the circumstances, we're grateful the question of ending the state's death penalty will get consideration in the Legislature. It's high time Kansas joins 15 other states that have abolished capital punishment.

On Sunday, December 26, the Birmingham News ran the editorial, "A new report suggests several states are at least somewhat putting the brakes on the death penalty, but Alabama remains stuck in the fast lane."

The Death Penalty Information Center's annual report last week offered encouragement to those who oppose capital punishment, at least in some parts of the country.

The center reports some of the bigger death penalty states seem to be slowing down a bit, sentencing fewer inmates to death and slowly shrinking their population of condemned inmates.

And:

The Death Penalty Information Center, which comes down on the opposing side, said the reasons the death penalty is falling out of favor can be traced back to several factors:

• Very real concerns about costs. In lean economic times, states are more keenly aware than ever of the expense of clearing the high legal hurdles that should be and are required for putting a person to death.
• Very real concerns about accuracy. In 2009, the center said, nine men who had been sentenced to death were exonerated and freed -- the second-highest number since capital punishment was reinstated in 1976.
• Laws that offer life-without-parole alternatives in sentencing. Judges, juries and prosecutors are recognizing dangerous inmates do not have to be put to death to keep society safe.

Count Alabama in on all these fronts.

There is no reason at all to be confident here that mistakes in death sentences aren't being made; that the people on Death Row got adequate legal representation; or that death sentences are handed out fairly without regard to the wealth, status or color of the people involved. And speaking of fairness, Alabama is unique in the country in letting elected judges sentence defendants to die even when a jury decides a death sentence is not appropriate.

For all of these reasons and more, Alabama should, at the very least, be moving toward scaling back its use of the death penalty. It would be even more appropriate if we stopped it altogether.

Related posts are in the editorial category index.

Federal Death Penalty Prosecutions

"No Decrease In Death Penalty Approval Rate," is the title of Ari Shapiro's NPR report.  The title refers to capital prosecutions approved by President George W. Bush's final Attorney General, Michael Mukasey and the current AG, Eric Holder.

During the Bush administration, opponents of capital punishment criticized the Justice Department for bringing federal death penalty cases too often and in states that have outlawed execution as a form of punishment.

With Attorney General Eric Holder running the department, many people expected to see a more limited use of the tactic.

But so far, Holder is instructing prosecutors to seek the death penalty at roughly the same rate as President Bush's last attorney general.

Holder said at his confirmation hearing that he is not a proponent of the death penalty. In March, he told reporters, "I think that's the toughest decision that an attorney general has to make: When do you authorize the seeking of the death penalty?"

But he quickly proved he is not afraid to instruct prosecutors to seek the death penalty in court.

"I've had to sign a few of those already during the course of these six weeks," Holder said in his first briefing with the media.

Several months later, Holder has authorized death penalty prosecutions at a pace comparable to that of his immediate predecessor, according to the Federal Death Penalty Resource Center. The center helps defense lawyers in capital cases, and it also tracks how often an attorney general authorizes prosecutors to seek the death penalty.

According to the Federal Death Penalty Resource Center, President Bush's first attorney general, John Ashcroft, greenlighted 139 federal death penalty prosecutions out of 641 cases that might have been eligible for capital punishment. That's a 22 percent approval rate. Ashcroft's successor, Alberto Gonzales, authorized prosecutors to seek the death penalty in 81 out of 423 possible cases, for a 19 percent approval rate.

Michael Mukasey approved 21 out of 159 cases, so his approval rate was 13 percent. Holder's approval rate is almost identical to Mukasey's.

And:

"The federal death penalty is not on hold in the sense of prosecutions," says Richard Dieter, who directs the nonpartisan Death Penalty Information Center. "Eric Holder's stamp of approval and signature is now on a number of federal prosecutions that are being carried on, and yet we don't know if there's going to be a change in policy."

Holder has not made any sweeping pronouncements about the death penalty. And sources who have met with senior Justice Department officials on this issue say there is no policy review on the horizon.

So, as multiple people who've worked with the Justice Department on the death penalty put it, "Nothing has really changed."

But this debate is about more than the number of prosecutions. It is also about how, and where, the decision to seek the death penalty is made.

The report also contains this chart:

Seeking The Death Penalty

Attorney General Eric Holder has instructed prosecutors to seek the death penalty at about the same rate as Michael Mukasey, President Bush's last attorney general.

Source: Federal Death Penalty Resource Center

Credit: Robert Benincasa and Nelson Hsu/NPR

Senate Adds Death Penalty Amendment to Kill Hate Crimes Legislation

That's the title of a Monday afternoon post at CivilRights.org, the home of the Leadership Conference on Civil Rights, written by Tyler Lewis.  LINK

On Friday, the Senate passed the Matthew Shepard Hate Crimes Prevention Act as an amendment to the fiscal year 2010 Department of Defense authorization bill.  But today, the Senate passed an amendment to the Act, offered by Sen. Jeff Sessions, R. Ala., that would allow the death penalty to be applied in hate crimes cases under some circumstances. 

LCCR and other civil and human rights groups that are supporting the Act do not support the Sessions amendment.  In a letter to the Senate, the groups said: "We strongly oppose this amendment...The death penalty is irreversible and highly controversial – with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people. Moreover, there are serious, well-documented concerns about unequal and racially biased application of the death penalty."

The Sessions amendment can still be removed from the bill by a House-Senate conference committee that will meet in September to reconcile the two versions of the legislation. The full House and Senate will vote on the final version of the bill before it is sent to President Obama.

The Matthew Shepard Hate Crimes Prevention Act will authorize the Department of Justice to investigate and prosecute certain bias-motivated crimes based on the victim's actual or perceived sexual orientation, gender, gender identity, or disability.  Currently, the federal government can only investigate hate crimes motivated by the victim's race, color, religion, and national origin in limited cases.

You can read the letter, which was signed by 46 national organizations.  Here's an excerpt from the beginning:

On behalf of the civil rights, religious, professional, civic, and educational groups below, we write to urge you to oppose two unnecessary and harmful amendments offered by Senator Sessions to S. 1390, the FY 2010 Department of Defense Authorization bill.

As strong supporters of S. 909, the Matthew Shepard Hate Crimes Prevention Act (HCPA), we supported the addition of this legislation as an amendment to S. 1390 last week. At a time when Congress is poised to advance civil rights protection by promoting new Federal-state partnerships and providing new tools to address bias-motivated violence, the proposed amendments by Senator Sessions (a staunch opponent of the HCPA) would be a disturbing step backward – and raise the prospects of unequal, politically-motivated, shifting standards of justice in applying the new hate crime law in the future.

One amendment offered by Senator Sessions, S.Amdt. 1615, would add the death penalty to the provisions of the HCPA. We strongly oppose this amendment.

The Hill reports, "Hate crimes amendments pass easily."  It's written by J. Taylor Rushing.

The Senate on Monday passed four amendments to the Defense Department authorization bill that limit the extension of federal hate crimes laws.

One amendment requires that hate crimes be identified and prosecuted based on “neutral and objective criteria.”

Another boosts penalties for attacks on U.S. military service members and their families, while a third authorizes the death penalty for certain crimes that result in death.

All three amendments were backed by Republicans, most of whom voted against the extension of hate crime protections last week.

The chamber also passed one Democratic amendment, a compromise proposal by Judiciary Committee Chairman Patrick Leahy (D-Vt.), that would limit hate crime prosecutions until a state’s attorney general has established standards for applying the death penalty.

Three of the four amendments were unanimously passed; the measure regarding attacks against U.S. military service members passed by a vote of 92-0.

None of the changes significantly affect the chamber’s action last week in passing by voice vote an amendment by Leahy that expands the federal definition of hate crimes to include crimes targeting victims because of their sexual orientation, gender or disabilities.

Republicans continued to grumble about that vote on Monday, with Judiciary Committee ranking member Jeff Sessions of Alabama, a former federal prosecutor, giving a lengthy, 50-minute floor speech denouncing the idea of enhancing hate crimes prosecutions.

"Senate takes up concealed weapons measure," is Jim Abram's AP report, via  Google News.

The Senate on Monday also approved remaining amendments to the hate crimes bill, including one describing when perpetrators of hate crimes will be subject to the death penalty and another creating a new federal crime for targeted attacks on members of the military or their families.

On Thursday the Senate adopted the body of the hate crimes measure by voice after voting 63-28 to overcome a GOP-led filibuster. The bill, promoted for more than a decade by ailing Sen. Edward Kennedy, D-Mass., expands those categories covered by hate crimes and makes it easier for federal authorities to aid state and local prosecutions or take over cases when the local authorities can't or are unwilling to pursue them.

Current law, dating back to 1968, covers crimes motivated by race, color, national origin or religion.

Death Penalty Decisions Loom

That's the title of a lengthy Politico report by Josh Gerstein.  LINK  Here's an extended excerpt from the beginning of the article:

For the first time in his career, President Barack Obama may soon confront one of the most weighty and unsavory decisions that a chief executive must make, whether to put a murder convict to death.

The decision could land on Obama’s desk within a matter of months, due to cases winding their way through the federal courts. And while Obama is on record supporting the death penalty for particularly heinous crimes, that’s a far cry from deciding whether a specific man’s life should be taken or spared.

“The death penalty in the abstract is one thing. The reality of the death penalty and all of its nasty details is a very different thing,” said Dianne Rust-Tierney of the National Coalition Against the Death Penalty. “This is something that this president is not the only one to face…..Having seen this thing in practice, you see it as a very different animal.”

Already, with little press attention or protest from the anti-death penalty camp, Attorney General Eric Holder has authorized federal prosecutors to seek the death penalty for at least four defendants since Obama took office. In all, 55 men and two women are on federal death row, death-penalty opponents say.

But the timing of Obama’s first death-penalty decision is likely to be dictated by a case pending in Washington, involving six federal death-row inmates at most imminent risk of execution. Their sentences were stayed by a federal judge, who is deciding whether to let their executions proceed, despite their challenge to federal execution protocols.

The cases involve three members of a Richmond, Va., gang sentenced to death in 1993 for drug-related murders; two men sentenced to death for abduction, sexual assault and murder of a 16-year-girl; and another man convicted of killing a prison guard. All six defendants are black.

If the stay is lifted and execution dates are set, any of the men could ask the president to step in. And clearly, death-penalty opponents hope they have a sympathetic ear in Obama, despite his support for the limited use of executions. They hope he will try to impose more safeguards in federal capital cases, and even spare some prisoners. And they note that Holder once authored a ground-breaking federal study that found racial disparities in death penalty cases.

As a state senator in Illinois, Obama pressed for death penalty reforms, including a requirement that interrogations in capital cases be audio- or videotaped. He also opposed adding gang-related crimes to those which could prompt the death penalty.

And in his book, “The Audacity of Hope,” Obama said he saw little evidence that the death penalty is a deterrent.

A Federal Capital Case in New Jersey & the Deterrence Argument - UPDATED

Does the death penalty deter?  Lawmakers opposing repeal measures in legislatures across the country this year often expressed their belief that the death penalty is a deterrent.

Cass Sunstein and Justin Wolfers were quite clear in their OpEd,"The Murky Evidence for and Against Deterrence," that appeared in the June 30, 2008 issue of the Washington Post, and noted here.

In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.

That didn't stop a New Mexico district attorney from misstating Sunstein's view during the repeal debate in that state earlier this year.

For those who want to dive deep into the statistics and empirical studies, there is no better authority on deterrence than Columbia Law prof Jeffrey Fagan.  A small sample can be found in this post; much more at his SSRN page.

Even the general public has concluded deterrence is a myth.  Since 1999, according to the Harris Poll, only a minority of those surveyed have believed that the death penalty deters.

And then there is the anecdotal evidence.  The most recent example appears in Thursday's New York Times: "Lawyer's Ways Spelled Murder, U.S. Is Charging," written by David Kocieniewsky.

He spent a decade as a top prosecutor, trying murder cases in New Jersey, drug cases in federal court and a wide range of offenses in the military justice system.

He went on to become one of the state’s most prominent defense lawyers, representing clients as varied as Abu Ghraib defendants, the rap stars Lil’ Kim and Queen Latifah and members of Newark’s notorious street gangs.

But federal authorities charged Wednesday that the success their former colleague, Paul Bergrin, had in defending drug dealers and gang leaders was based on a brutal calculus that he had boiled down to a phrase he repeated like a slogan: No witnesses, no case.

In an indictment unsealed on Wednesday in United States District Court in Newark, prosecutors accused Mr. Bergrin, 53, of orchestrating the murder of a confidential witness by leaking his name to drug dealers who shot him in broad daylight on a Newark street corner; of traveling to Chicago to hire a murderer to kill a witness in another case; of coaching some eyewitnesses to lie; and of paying others to change their stories or leave town on the day they were to testify.

The charges, which left Mr. Bergrin in federal custody and facing a possible death penalty, were a stunning development for a flamboyant man who owned a Mercedes and a Bentley, hobnobbed with movie stars and boasted of beach homes in New Jersey and the Caribbean.

Bergrin is far from the first law enforcement official to be accused of capital murder.  If those closest to the law -- those who fully understand the elements of a crime that can lead to a death penalty prosecution -- are not deterred just who is?

Let's give Mr. Bergrin the presumption of innocence, but death rows and execution chambers have seen others in law enforcement convicted, condemned, and undeterred.

Let me update with two comments from Jeffrey Fagan:

One is the evidence that not only does the death penalty not deter, but that when we isolate the cases that are death-eligible, we still find no evidence of deterrence, even in places like Harris County, which generates plenty of executions. 

Second, the overwhelming weight of the scientific data is that there may or may not be deterrence, but that the evidence is so fragile and inconclusive - with studies pointing in all directions - that we cannot morally justify the decision to take lives based on it. 

Feingold Is Eager for Some Victories

That's the title of an article in Roll Call this morning on U.S. Senator Russ Feingold of Wisconsin.  It's written by Jessica Brady.  LINK

Sen. Russ Feingold’s (D-Wis.) early moves this year to ban the death penalty and amend the Constitution look like the bold strokes of a liberal lawmaker feeling liberated by a Democratic White House.

But despite the steady stream of bill introductions and press releases, Feingold’s frenetic pace and legislative to-do list are remarkably consistent even in an air of change ushered in by President Barack Obama.

“My level of activity is the same it’s always been. There’s just a greater possibility of actually accomplishing things,” Feingold said. “There’s a much higher comfort level with the president now than before.”

In Obama, Feingold has found a fellow Midwesterner and former constitutional law professor who shares a passion for legal issues and government oversight.

He has also found an ally on the other end of Pennsylvania Avenue interested in banning alleged torture techniques used during the Bush administration and focusing on “restoring the rule of law.”

“There are things the president can do on his own,” Feingold said, pointing to Obama’s early moves to close the Guantánamo Bay prison in Cuba and end the use of torture when interrogating terrorism suspects.

But Feingold does not want to stop there.

The lone Senator to vote against the USA PATRIOT Act in 2002, Feingold wants to end wiretapping and surveillance programs authorized under the controversial law. He penned a letter to Obama shortly after Election Day asking the president-elect to take “concrete steps to restore the rule of law after the eight-year assault by the Bush Administration,” and to support a complete overhaul of the Foreign Intelligence Surveillance Act.

Earlier coverage is here, noting the introduction of S. 650, the Federal Death Penalty Abolition Act of 2009.

Senator Feingold Reintroduces Bill to Abolish Federal Death Penalty

His news release is here.

As momentum builds in states to abolish the death penalty, U.S. Senator Russ Feingold reintroduced legislation today to abolish the death penalty at the federal level.  Feingold’s Federal Death Penalty Abolition Act of 2009 would put an immediate halt to federal executions and forbid the use of the death penalty as a sentence for violations of federal law.  The use of the death penalty has been questioned by a range of prominent voices across the country, recently repealed in New Mexico and New Jersey, and abolished by 123 countries around the world.  Feingold’s bill would stop executions on the federal level, which are part of a death penalty system that has proven to be ineffective, wrought with racial disparities, and alarmingly costly.  

“I oppose the death penalty because it is inconsistent with basic American principles of justice, liberty and equality,” Feingold said.  “Governor Bill Richardson and the New Mexico legislature’s action to abolish the death penalty in that stateadds to the growing momentum behind ending the death penalty in this country.  It is truly unfortunate that we are in a shrinking minority of countries that continue to allow state-sponsored executions.”

Feingold is not alone in his opposition to the death penalty.  A range of prominent voices have questioned the system in recent years, including former FBI Director William Sessions, former Supreme Court Justice Sandra Day O'Connor, law enforcement officials and many others across the political spectrum.  In 2007, only China, Iran, Saudi Arabia and Pakistan executed more people than the United States. 

In 2007, Feingold chaired a Senate Judiciary Committee, Constitution Subcommittee hearing on oversight of the federal death penalty that highlighted the lack of transparency at the Department of Justice in the decision-making process about the death penalty and continuing problems of racial disparities in the federal system.  Also in 2007, the American Bar Association called for a nationwide moratorium on capital punishment based on its detailed study of state death penalty systems, which found racial disparities, convictions based on bad evidence, grossly inadequate indigent defense systems, and a host of other problems with the implementation of capital punishment in this country.

AFP reports, "US Senator: Ban death penalty."

Democratic US Senator Russell Feingold on Thursday introduced legislation to put an immediate halt to federal executions and abolish the death penalty for violations of federal law.

"It is truly unfortunate that we are in a shrinking minority of countries that continue to allow state-sponsored executions," he said, noting that capital punishment has been banned in 123 countries around the world.

In 2007, only China, Iran, Saudi Arabia and Pakistan executed more people than the United States, according to a statement from his office.

"I oppose the death penalty because it is inconsistent with basic American principles of justice, liberty and equality," said the Wisconsin senator, whose legislation would not affect individual states.

Feingold introduced the measure one day after New Mexico Governor Bill Richardson made his state the 15th in the nation to outlaw capital punishment when he signed a law abolishing the death penalty.

Today's University of Wisconsin at Madison's Daily Cardinal carries the OpEd, "Capital punishment deserves the ax to preserve rights of justice, liberty," by Jon Spike.

With the recent activity in the political sphere, it appears many politicians are dying to get capital punishment banned at the federal level in the United States. In light of New Mexico Gov. Bill Richardson’s decision to repeal capital punishment in New Mexico, Sen. Russ Feingold, D-Wis., is re-introducing legislation to eliminate the death penalty in the United States, a policy already in place in Wisconsin. In fact, Wisconsin has only executed one inmate in its 160-year history. New Mexico became the 15th state to outlaw capital punishment and the third state in the last two years to do so after New Jersey and New York.

However, it is easy to see why the bill’s timing could be considered horrible at best. America finds itself in a painful economic recession, and prisons are already seeking to scale back on inmate counts in any way possible. Wisconsin Gov. Jim Doyle included releasing inmates early in his proposed budget as a means to save $40,000 per inmate per year. Eliminating capital punishment would mean lifetime care for any and all inmates who commit the heinous crime of murder, creating a financial burden upon the state. However, fiscal reasoning should not be our guiding light on this issue, and in many cases the death-penalty systems are an even bigger financial burden than forcing lifetime sentences.

Capital punishment is an ideological dinosaur, a product of centuries-old belief in eye-for-an-eye, that every action requires equal retribution and punishment. Capital punishment is also a barbaric and narrow-minded approach from a justice standpoint, especially when you have a justice system as imperfect as ours. According to the Death Penalty Information Center, 130 inmates from 26 states have been cleared from death row by new information or evidence that cleared them of guilt since 1973.

And:

America prides itself on liberty, justice and equality, yet capital punishment jeopardizes all three. Repealing the death penalty would not legitimize the act of killing, but rather acknowledge the fact that our justice system is yet to be perfect and America will strive to protect its citizens to the very end of their lives.

Related posts are in the federal legislation index.

Chapter Closed in the Nichols Case

"U.S. Attorney: No federal trial, death penalty for Nichols," also by Bill Rankin, is in today's Atlanta Journal-Constitution.

There will be no death penalty for Brian Nichols.

On Tuesday, U.S. Attorney David Nahmias announced he will not seek death against the quadruple murderer, ending a case that began with a bloody rampage four years ago at Georgia’s busiest courthouse.

A “careful and thorough review” by federal prosecutors and FBI agents led them to conclude that a federal prosecution against Nichols was unwarranted, Nahmias said in a statement.

Nichols was sentenced in December to life in prison without parole after a Fulton County jury could not reach a unanimous verdict, deadlocking 9-3 in favor of death.

District Attorney Paul Howard asked Nahmias to pursue capital charges in federal court because Nichols killed U.S. Immigration and Customs Enforcement Special Agent In Charge David Wilhelm.

Howard on Tuesday accepted Nahmias’ decision with “heartfelt gratitude and appreciation” for the Justice Department review.

“The people we lost are so precious and dear that we can never forget them,” Howard said. “Mr. Nahmias’ decision … represents a measure of closure and another step forward in the ongoing process of healing.”

Henderson Hill, Nichols’ lead attorney, said Nahmias’ decision “honors the work of all 12 Fulton County jurors, and appropriately so. … With this door closed, I am hopeful that the county and the state will rejoin the march towards ever-greater social justice.”

Nichols’ case cost millions, with the defense fees throttling the state public defender system’s budget, affecting thousands of cases statewide. The jury’s inability to reach a unanimous verdict on Nichols’ sentence also sparked proposed legislation that would allow a judge to sentence a murderer to death if a jury deadlocked, with at least nine jurors having voted for death.

GOP Focuses on Deputy AG Nominee Ogden's Work at Wilmer

That's the title of a Legal Times report by David Ingram.  LINK

The nomination of David Ogden to be deputy attorney general has given senators a chance to revisit some of most controversial Supreme Court decisions of the last two decades.

During a two-hour confirmation hearing last week, members of the Senate Judiciary Committee questioned Ogden about his work on cases involving abortion, the death penalty, foreign law and obscenity, repeatedly asking whether he personally holds the views that he argued on behalf of his clients. The partner at Wilmer Cutler Pickering Hale and Dorr replied that in many cases he does not, and that in others he would still enforce the law if confirmed as the No. 2 official at the Justice Department.

And:

"A lawyer in private practice does not sit in judgment of his clients. His job is to present their view as persuasively as possible," Ogden said at the Feb. 5 hearing.

The Judiciary Committee has not set a date to vote on Ogden's nomination. Senators have until Feb. 12 to submit questions in writing, and the Senate has a recess scheduled for the week of Feb. 16, potentially pushing a vote to the week of Feb. 23. Two other top Justice Department nominees, Thomas Perrelli for associate attorney general and Elena Kagan for solicitor general, go before the committee Feb. 10.

Senators' focus on Ogden's Supreme Court work is noteworthy because the deputy attorney general's responsibilities are far broader, including day-to-day oversight of the more than 100,000 Justice Department employees. Paul McNulty, former deputy attorney general, says he occasionally helped guide appellate strategy on national security matters, but that was the exception.

"The deputy attorney general does not have much involvement with Supreme Court advocacy. The solicitor general is fully responsible for that," McNulty says.

Still, senators wanted to know how Ogden would enforce federal laws, and appellate advocacy took up a significant portion of Ogden's time in private practice. He and fellow Wilmer partner and former solicitor general Seth Waxman teamed up on behalf of death-row inmate Christopher Simmons in Roper v. Simmons (2005), in which the Court struck down the death penalty for those who committed their crimes as minors.

Sen. Jeff Sessions (R-Ala.) criticized the idea that such a punishment is cruel and unusual. He asked Ogden, "The Constitution allows things that could be rarely done, doesn't it?"
Ogden parried back about the Eighth Amendment's two-pronged test of cruel and unusual before promising to uphold federal law on the death penalty whatever it is.

A reference by Waxman and Ogden in their Roper brief to "worldwide revulsion against the execution of juvenile offenders" drew the ire of Sen. Jon Kyl (R-Ariz.). Asked how much weight he gives foreign law, Ogden replied, "I think typically very little weight, Senator."

And:

No one asked Ogden about a brief he wrote for the American Psychological Association in Lawrence v. Texas, the 2003 case that overturned state sodomy laws, but perhaps they'll submit a question in writing

More on Roper v. Simmons and Lawrence v. Texas comes from Oyez.

Eric Holder: Help Save 49 Lives, Please!

That's the title of a post at Huffington Post by Claudia Ricci, who teaches journalism at Georgetown University.  LINK  Here's an extended excerpt:

I have a lawyer friend -- a criminal defense attorney -- who is also a Buddhist. He lives his life in a deeply mindful and respectful way. He is passionately opposed to the death penalty and he has written tomes trying to bring attention to the injustices of individual cases all across the country. I've told him to write a book. He has, in effect, already written it.

Well, anyway, today he emailed me to say that he is starting a campaign, and an urgent petition drive, in an effort to try to save 49 lives -- all of those people who currently face the death penalty in federal penitentiaries.

"I seem to have embarked on a spontaneous, disorganized effort to get the new Attorney General, Eric Holder, to review all of the pending federal death penalty cases," he said. And then he asked if I could help.

And so, here you go, David Seth Michaels, here is your chance to ask for help.

Now that there is a new Attorney General it's vitally important that the new Department of Justice immediately remember to re-evaluate all of the federal cases in which the death penalty is presently being sought. And it's important that if these cases do not meet their professed higher standards for imposition of the death penalty (this is an oxymoron, standards that allow state killing cannot be high), authorization to seek the death penalty should now be withdrawn. This may save 49 lives and prevent state killings from being carried out in our names.

Remember John Ashcroft? He who left the AG's office at the end of 2004? He who wanted to "federalizethe death penalty?" Ashcroft's plan was that the Attorney General in Washington and not the local United States Attorneys, who would prosecute the crime and were located where the crime was alleged to have been committed, should decide which cases were appropriate for the federal death penalty. It wasn't right, the argument went, that in some places the death penalty was eschewed. So the feds would seek to have it imposed in federal courts in places like Michigan, Vermont, New York, places where the states had no death penalty. Then, the argument went, the death penalty would be more uniform. It wouldn't be an event occurring solely in the Southern Death Belt. That was supposed to be a good idea.

Ashcroft was succeeded by Alberto Gonzalez. He who wrote grotesquely inadequate memos to W about Texas death penalty commutation requests. He of the poor memory. He of the politicization of DoJ. He who explained so very little. Gonzalez, of course, continued to make decisions about the cases in which the feds would pursue the death penalty, and in which they wouldn't. And so did his successor, Michael Mukasey.

In response to questions from Senator Feingold, in June, 2007, DoJ laid out the entire history and all the numbers since 2001 here (pdf). In sum, there's a procedure for deciding what cases are death eligible. The procedure is basically a series of recommendations from lower to higher prosecution officials, but ultimately, the AG decides what should occur. That decision cannot be reviewed. How he makes the decision is never revealed. It's essentially a secret. And the criteria by which this decision is ultimately made have not been explicitly stated. If you're a judge or a defense lawyer or a prosecutor, you can ask that this incredibly important decision be reconsidered. And sometimes it is. But in general, the buck stops with the AG, who then acts like the Sphinx.

According to the Death Penalty Information Center, there are now 51 prisoners on federal death row in Terra Haute, Indiana. According to CapDefNet 23 federal death penalty cases are now on or awaiting trial, 5 are awaiting re-trial or re-sentencing after appeal, and 21 cases are now on appeal or seeking post conviction relief. In other words, 49 people have pending federal death penalty cases in which the Bush DoJ's decision to seek the death penalty, the decision made by Ashcroft, Gonzalez or Mukasey, makes the defendant eligible for execution.

These cases should all be immediately re-evaluated by Eric Holder and the Obama DoJ to determine whether they remain death penalty eligible. 49 lives stand in the balance.

There's no reason to believe that the criteria the DoJ initially applied in deciding to seek the death penalty in these cases, particularly the obviously political one of "federalizing" the death penalty, would meet the criteria Holder and/or Obama might require in these cases.

And:

There are essentially two, easy, quick ways to tell the administration your views about review of these federal death penalty cases. First, you can send a 500 character email to the White House at Whitehouse.gov. For suggested text, go here.

Second, you can sign a petition to AG Holder requesting a review of these cases.

Please join me in requesting that these 49 cases be reviewed and that these lives be spared.

StandDown's federal death penalty category index is here.

President Obama and the Death Penalty

"Anti-death penalty lobby hopes for discreet Obama support," is the AFP report via Google News.

In a country that has almost two-thirds support for the death penalty, US President Barack Obama will likely shy away from addressing the issue head on but could signal a discreet change in attitude, analysts say.

During the presidential campaign, Obama only addressed capital punishment once, when the US Supreme Court ruled that sentencing someone to death for raping a child is unconstitutional.

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," he said in June.

And:

"I think that he's going to just avoid the issue," said Rob Warden, who heads the Center on Wrongful Convictions at Northwestern University School of Law in Obama's hometown of Chicago, Illinois.

"There are pressing problems with the economy, international relations, both the Middle East, including Iraq and Iran, and Afghanistan, Pakistan. He's got so many crises to face."

Whatever his convictions, as president Obama does not have the power to abolish the death penalty, which is backed by 65 percent of people in the United States according to recent surveys.

He can, however, push for criminal justice reform and influence death penalty decisions through his nominations to the Supreme Court, which has the sole authority over such matters, according to activists who oppose capital punishment.

The last US president to make public his opposition to the death penalty was Franlin D. Roosevelt.

And:

Obama "is a very smart politician who knows that being completely against the death penalty in America would have made him harder to elect," said victims' rights advocate Jennifer Bishop-Jenkins.

The Illinois-based lawyer who opposes the death penalty said once the death penalty was reformed in the state in 2003, Obama, then a state senator, "was content to walk away and focus on issues that concerned the well-being of larger numbers of people."

During that same period, however, Obama "was instrumental in obtaining passage of some of the key reforms recommended by the governor's commission," said Tom Sullivan, a former Chicago prosecutor who co-chaired the Illinois capital punishment commission.

Sullivan said Obama had played an especially important role in "the statute requiring law enforcement personnel to make electronic recordings of custodial interviews in homicide investigations, the first statute on the subject in the country."

The reform was adopted by several other states. The statute is considered as a means to prevent coerced confessions from being presented as damning evidence.

For those who view the entire article, there are some factual mistakes concerning President Clinton.  During the 1992 presidnetial campaign, he famously returned to the state to preside over the execution of Ricky Ray Rector.  Many believe that he did so to burnish a tough on crime image. As President, Clinton supported passage of the Antiterrorism and Effective Death Penalty Act of 1996 which severely limited federal court review of state death sentences through habeas corpus proceedings.

At DoJ

"Justice Dept. Under Obama Is Preparing for Doctrinal Shift in Policies of Bush Years," is Neil Lewis' report in today's New York Times.

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

Under Mr. Obama’s recent executive order, the Justice Department will be required to review the files of the 245 detainees at Guantánamo and draw up a proposal on their fate that will fulfill the pledge to close the facility.

“The idea that it has to be closed within a year will drive the timing of many things,” said the Obama administration lawyer, who spoke on the condition of anonymity because Mr. Holder had not yet taken office.

Mr. Holder will also have to make several quick decisions because of court-imposed deadlines. And he will have to do so with many of the senior positions in the department not yet filled.

And:

While the Justice Department has rapidly grown in recent decades to more than 110,000 employees, there are only about 150 spots for political appointees who will steer policy. Only about 21 have begun work. Several of the most senior of the political appointees require confirmation by the Senate, and Mr. Holder was the first to be considered.

Thomas Tamm & the Federal Death Penalty

Newsweek's cover article this week is "The Fed Who Blew the Whistle: Is he a hero or a criminal?"  It's written by Michael Isikoff, and it sheds some new light on the use of the federal death penalty in the Bush administration.

The focus of Issikoff's report is Thomas Tamm, a career DoJ prosecutor and his growing awareness of the Bush administration's secret eavesdropping program run by the National Security Agency.  Troubled by the limited information he had, Tamm went to a superior and a congressional oversight committee staffer.  After being rebuffed by both, Tamm eventually called a reporter at the New York Times and shared his concerns.

The story of the secret NSA spying program was broken in December 2005 by the New York Times, "Bush Lets U.S. Spy on Callers Without Court."  James Risen and Eric Lichtblau relied on other sources, but Tamm's information had been essential to their understanding of the secret program's existence.  The New York Times won a Pulitzer Prize for its reporting on the issue.

In a previous assignment at the Department of Justice Tamm had been assigned to the Capital Case Unit.  He saw a marked shift in how cases were handled under the Clinton administration and the Bush administration.  Here are several excerpts dealing with federal death penalty prosecutions:

Tamm concedes he was also motivated in part by his anger at other Bush-administration policies at the Justice Department, including its aggressive pursuit of death-penalty cases and the legal justifications for "enhanced" interrogation techniques that many believe are tantamount to torture. But, he insists, he divulged no "sources and methods" that might compromise national security when he spoke to the Times.

And:

In 1998, Tamm landed a job at the Justice Department's Capital Case Unit, a new outfit within the criminal division that handled prosecutions that could bring the federal death penalty. A big part of his job was to review cases forwarded by local U.S. Attorneys' Offices and make recommendations about whether the government should seek execution. Tamm would regularly attend meetings with Attorney General Janet Reno, who was known for asking tough questions about the evidence in such cases—a rigorous approach that Tamm admired. In July 2000, at a gala Justice Department ceremony, Reno awarded Tamm and seven colleagues in his unit the John Marshall Award, one of the department's highest honors.

After John Ashcroft took over as President Bush's attorney general the next year, Tamm became disaffected. The Justice Department began to encourage U.S. attorneys to seek the death penalty in as many cases as possible. Instead of Reno's skepticism about recommendations to seek death, the capital-case committee under Ashcroft approved them with little, if any, challenge. "It became a rubber stamp," Tamm says. This bothered him, though there was nothing underhanded about it. Bush had campaigned as a champion of the death penalty. Ashcroft and the new Republican leadership of the Justice Department advocated its use as a matter of policy.

Tamm's alienation grew in 2002 when he was assigned to assist on one especially high-profile capital case—the prosecution of Zacarias Moussaoui, a Qaeda terrorist arrested in Minnesota who officials initially (and wrongly) believed might have been the "20th hijacker" in the September 11 plot. Tamm's role was to review classified CIA cables about the 9/11 plot to see if there was any exculpatory information that needed to be relinquished to Moussaoui's lawyers. While reviewing the cables, Tamm says, he first spotted reports that referred to the rendition of terror suspects to countries like Egypt and Morocco, where aggressive interrogation practices banned by American law were used. It appeared to Tamm that CIA officers knew "what was going to happen to [the suspects]"—that the government was indirectly participating in abusive interrogations that would be banned under U.S. law.

Challenging one federal death penalty prosecution was a factor cited in the firing of U.S. Attorney Paul Charlton in Arizona.  The DoJ review of that firing and several others, however, concluded that political pressure from the White House and the Attorney General's office was the real reason for the dismisals.  The posts DoJ Report on U.S. Attorney Firings and Fired Prosecutor Says Gonzales Pushed Death Penalty link to coverage of the Jose Rios Rico case. 

Tamm left DoJ in 2006, Isikoff notes, and his house was raided by FBI agents in 2007.  Also from the Newsweek article:

In the meantime, Tamm lives in a perpetual state of limbo, uncertain whether he's going to be arrested at any moment. He could be charged with violating two laws, one concerning the disclosure of information harmful to "the national defense," the other involving "communications intelligence." Both carry penalties of up to 10 years in prison.

And:

Paul Kemp, one of Tamm's lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm's case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office. The case could present a dilemma for the new leadership at Justice. During the presidential campaign, Obama condemned the warrantless-wiretapping program. So did Eric Holder, Obama's choice to become attorney general. In a tough speech last June, Holder said that Bush had acted "in direct defiance of federal law" by authorizing the NSA program.

Tamm's lawyers say his case should be judged in that light. "When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility," says Asa Hutchinson, the former U.S. attorney in Little Rock and under secretary of the Department of Homeland Security who is assisting in Tamm's defense. "It reflected a lawyer's responsibility to protect the rule of law." Hutchinson also challenged the idea—argued forcefully by other Bush administration officials at the time—that The New York Times story undermined the war on terror by tipping off Qaeda terrorists to surveillance. "Anybody who looks at the overall result of what happened wouldn't conclude there was any harm to the United States," he says. After reviewing all the circumstances, Hutchinson says he hopes the Justice Department would use its "discretion" and drop the investigation. In judging Tamm's actions—his decision to reveal what little he knew about a secret domestic spying program that still isn't completely known—it can be hard to decipher right from wrong. Sometimes the thinnest of lines separates the criminal from the hero.

One postscript, firdoglake's emptywheel has the post, The Thomas Tamm Legal Defense Fund:

The bottom line is that Tom Tamm blowing the whistle is probably the linchpin behind us knowing what we do about the egregious unconstitutional and illegal actions of the Bushies. Tamm coming forward at this time may also prove to be critical in forming Judge Walker's mind on his review of the immunity assertion.

A lot of readers have asked about how to donate to Tamm's legal defense fund. In that regard, I contacted Mr. Tamm's attorney, Paul Kemp and obtained the information; here is the response:

Hi [bmaz]. Thanks for your inquiry. The address of the defense fund
is:

Thomas Tamm Legal Defense Fund
Bank of Georgetown
5236 44th Street
Washington, DC 20015.

Tom appreciates your support and that of your readers. [Some
unrelated chit chat on another matter redacted]

Paul F. Kemp

Irrespective of his precise personal motivations, Tom Tamm has done the Constitution, the Fourth Amendment, the rule of law and all of us a favor by exposing the rank lawlessness of the elected leaders of this country. If you see fit, send him a few bucks to lighten the load he has taken on.

As governor of Texas, George W. Bush presided over the executions of 152 men and women.  It's clear that he took his support for the death penalty with him to Washington.

Will There Be a Federal Prosecution of Brian Nichols?

The issue is examined by Robin McDonald in today's Fulton County Daily Report, "Federal trial for Nichols may be tricky."

Three former federal prosecutors said that the U.S. government would face significant—but not necessarily insurmountable—hurdles in prosecuting Brian G. Nichols for a crime that could lead to his execution.

Nichols sidestepped the death penalty last week when three of 12 Fulton County jurors refused to deliver the ultimate sentence for murdering a judge, a court reporter, a Fulton County sheriff's deputy and a federal immigration and customs agent during and after his March 2005 escape from the Fulton County Courthouse. Nichols was sentenced Saturday to four life-without-parole sentences for the murders, plus 485 years for other crimes—all to be served consecutively.

On Saturday, Fulton County District Attorney Paul L. Howard Jr. said he plans to meet with the U.S. Attorney in Atlanta, David E. Nahmias, this week to discuss pursuing a death case against Nichols for the death of federal agent David Wilhelm.

Through spokesman Patrick Crosby, Nahmias said Sunday that federal prosecutors “will review the evidence, the applicable federal law and policy, and the other circumstances of the case to determine whether and how to proceed.” He declined to comment further.

Getting past constitutional guarantees against double jeopardy would not be a problem for the federal government, former U.S. attorney Joe D. Whitley, former U.S. attorney Kent Alexander and former assistant U.S. attorney Wilmer “Buddy” Parker III each told the Daily Report.

But they all agreed that federal prosecutors would need to ascertain whether the federal statute making the murder of a federal officer a crime eligible for the death penalty would apply to Nichols' slaying of a U.S. Immigration and Customs Enforcement agent, David Wilhelm. Critical to that analysis is whether Wilhelm would have been considered on duty at the time he was killed.

If confirmed as U.S. Attorney General, Eric H. Holder Jr. also would have to approve any effort by the U.S. attorney for the Northern District of Georgia, who likely will also be a new appointee, to seek the death penalty against Nichols.

“Would Eric Holder authorize a prosecution that has been fully tried and presented to a jury in Atlanta?” asked Parker. “I just don't know.”

The Augusta Chronicle carries an AP report, "Feds could take Atlanta courthouse gunman case."

Federal prosecutors would face higher legal standards to pursue death charges against Nichols based on the fact that one of his four victims was a federal agent. And the U.S. Attorney must first begin the lengthy process of getting approval from the Justice Department.

Still, Fulton County District Attorney Paul Howard said he will speak with U.S. Attorney David Nahmias this week about federal charges after a judge was forced to sentence Nichols to life in prison because a deadlocked state jury failed to reach a unanimous verdict on the death penalty.

Earlier coverage begins with this post.

U.S. Military Schedules Execution

"Military has date for first execution since 1961," is the title of an AP report via the San Francisco Chronicle.

A former Army cook convicted of multiple rapes and murders is set to die next month in what would be the U.S. military's first execution in nearly 50 years.

The military said Thursday that former North Carolina soldier Ronald A. Gray is to be executed Dec. 10 at the federal prison complex in Terre Haute, Ind.

Gray was arrested in connection with four slayings and eight rapes in the Fayetteville, N.C., area between April 1986 and January 1987, while he was stationed at Fort Bragg. He was convicted of murdering two women.

President Bush approved Gray's execution in July, and a month later Army Secretary Pete Geren set the execution date and ordered that Gray be put to death by injection. The date was publicly released Thursday.

"The Army is moving forward with plans to fulfill the court-martial sentence," said Army spokesman Lt. Col. George Wright.

Gray has appealed his case through military courts and the U.S. Supreme Court, which declined to hear the case in 2001. Wright said Gray had two legal options remaining: filing a petition with a federal appellate court to stay the execution, or request that the president reconsider approval of the execution.

Army personnel will be responsible for conducting the execution in Indiana based on an agreement with the U.S. Bureau of Prisons.

Only 10 members of the military have been executed since 1951, when the Uniform Code of Military Justice, the military's modern-day legal system, was enacted.

President Eisenhower was the last president to approve a military execution. That was for John Bennett, who was hanged in 1961 for raping and attempting to kill an 11-year-old Austrian girl.

On Feb. 12, 1962, President Kennedy commuted the death sentence of Jimmy Henderson, a Navy seaman, to confinement for life.

Gray, 43, is being confined at the U.S. Disciplinary Barracks at Fort Leavenworth.

AP writer John Milburn notes that four other military personnel are under sentence of death.

"Army sets execution date for Fort Leavenworth inmate," is the Kansas City Star report by Dawn Borman.

President George W. Bush signed an order in July that approved the Army’s recommendation to execute Gray. At the time, it was unclear whether the execution would be carried out before Bush’s term expired. Army officials said Thursday that they cannot rule out further appeals from Gray’s legal team.

“The president took action following completion of a full appellate process, which upheld the conviction and sentence to death. Two petitions to the U.S. Supreme Court were denied during the appellate processing of Pvt. Gray’s case,” according to an Army press release.

Gray was convicted in April 1988 at Fort Bragg, N.C., of two murders, an attempted murder and three rapes.

The last military execution was at Fort Leavenworth in 1961 when John A. Bennett was hanged. Much has changed since 1961 at the Disciplinary Barracks. The Army opened a new prison in 2002. Although Army officials designated a space for an execution chamber, they stopped short of immediately equipping the area for the military’s present method of execution, lethal injection.

Recent military changes have opened the door for executions at other federal facilities.

"Army sets soldier's execution date," by Military Editor Henry Cunningham is in North Carolina's Fayetteville Observer.

Earlier coverage is here and here.

DoJ Report on U.S. Attorney Firings

"Mukasey Appoints Special Prosecutor to Investigate U.S. Attorney Firings," is the Legal Times article.  The DoJ report is here.

Attorney General Michael Mukasey has appointed a special prosecutor to investigate the firings of several U.S. Attorneys in 2006, as a report released Monday by Justice Department watchdogs found "significant evidence" that several of the attorneys fired in 2006 were let go for partisan or political reasons (pdf). The report recommended the appointment of a prosecutor with subpoena powers to continue the investigation.

Top department officials had said the firings were performance-related, but the report, by Justice Department Inspector General Glenn Fine and Office of Professional Responsibility Director H. Marshall Jarrett, found otherwise. It also describes the department's top two officials at the time, Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty, as "remarkably unengaged" in the firing process and cites both for making "inconsistent, misleading and inaccurate" public statements about the firings.

In Chapter 8 of the report, dealing with fired U.S. Attorney Paul Charlton of Arizona, there is an extensive discussion of the case of Jose Rios Rico.  Charlton's office had recommended not seeking the death penalty in the case.  Then-Attorney General Alberto Gonzales overruled Charlton and ordered that death be sought.  However, DoJ procedures had not been followed in reviewing the matter, and Charlton sought a reconsideration of the decision. 

Earlier this month, the Rios Rico case was settled with a plea agreement and no death penalty was sought.  An AP report, via Google News, "Former US attorney relieved with Ariz. murder case," is from Wednesday, September 24.

A former U.S. attorney fired in 2006 after clashing with his boss over a death penalty case says he's relieved the Justice Department is no longer seeking to execute the defendant.

Federal prosecutors made a plea deal with Jose Rios Rico that took the death penalty off the table. He was sentenced Tuesday to life in prison plus 55 years; he had earlier this month pleaded guilty to murder, drug and firearm charges in the case.

Former U.S. Attorney Paul Charlton told The Associated Press he didn't think prosecutors had enough evidence to get the death penalty. He said he was fired after arguing that point with then-Attorney General Alberto Gonzales, who wanted him to pursue it anyway.

Charlton was one of nine U.S. attorneys who were ousted in 2006 in an unusual midterm purge that ignited charges of White House political meddling at the fiercely independent Justice Department.

The firings led to congressional investigations, an internal Justice Department inquiry and calls on Capitol Hill for the resignation of Gonzales, who left last year.

"A more seasoned group of individuals are reviewing these decisions now," Charlton said Monday of the Department of Justice.

"Attorney General Gonzales and his deputy attorney general were primarily concerned with the dogma and political concerns that surround the death penalty as opposed to what was right," Charlton said.

He said Gonzales and his deputies at the Justice Department ordered him to pursue the death penalty while he was managing the case. At the same time, they didn't want to spend the money to exhume the body of the victim, which Charlton believed would have given prosecutors key forensic evidence to prove their case.

Earlier coverage is here.

Federal Judge Wants Fewer Capital Cases

That's the title of an article in today's New York Sun.  LINK

A sitting federal judge who is working on a book is calling on the Justice Department to ease off in pursuing the federal death penalty in New York City cases.

Speaking at an American Bar Association event yesterday, the judge, Frederic Block of U.S. District Court in Brooklyn, criticized the government for spending millions of dollars in pursuit of death sentences and ignoring what he said were New Yorkers' views on capital punishment. Washington often seeks death sentences when it has virtually no chance of success, he said, sometimes even over the objections of the local U.S. attorneys tasked with prosecuting the cases.

"The problem is, basically, New York has spoken against the death penalty with the exception of a situation involving a cop killing," he said, referring to the single instance in which a federal jury has rendered a death verdict in New York in recent years. The condemned man, Ronell Wilson, killed two undercover detectives.

Judge Block cited the fact that federal juries have been reluctant to impose death penalties in other trials. Since that February 2006 death verdict in the Wilson case, Judge Block's courthouse has hosted seven capital trials in which a jury has declined to impose a death sentence, which requires unanimity.

"Yet you go on and on and on and prosecute these cases," Judge Block, who was nominated to the bench by President Clinton, said.

And:

Judge Block's comments yesterday are some of his strongest public statements yet against the administration of the death penalty. While other judges have also asked the justice department to reconsider the death penalty in individual cases, Judge Block has emerged as the most vocal critic.

In 2006, Judge Block urged prosecutors not to seek the death penalty against a crack dealer who had ordered up two murders. A transcript of the remarks was discovered by reporters, resulting in significant news coverage. Shortly afterwards, Judge Block published an opinion piece in the New York Times describing the toll that death penalty cases exact on courthouse resources.

"It's just not cost-effective to willy-nilly strive for the death penalty," Judge Block said yesterday. "It really goes a long way toward hurting the functions of the court and the U.S. attorney's office in terms to being able to handle the rest of their criminal docket. It creates a serious problem."

A former federal prosecutor in Brooklyn, Loretta Lynch, also participated on the panel. She said the current Justice Department leadership appears more willing to disregard a local U.S. attorney's desire to waive the death penalty.

StandDown's federal death penalty index is here.