The StandDown Texas Project

Connecticut Public Defenders to File Death-Row Challenge

That's the title of an AP report datelined Bridgeport, Connecticut.

Connecticut public defenders hope to use the trial of a Bridgeport man as the venue to challenge the constitutionality of a new law that outlaws capital punishment in the state, but only for future crimes.

Richard Roszkowski is awaiting the penalty phase of his capital trial for the 2006 murders of his former girlfriend, her 9-year-old daughter and his former roommate.

Michael Courtney, head of the state Public Defender's Office capital defense unit, said Wednesday he plans to file a brief by Aug. 7 in the case, challenging the state's right to seek the death penalty.

"Triple Murder Will Put Repeal Of State's Death Penalty Before The Supreme Court," is the Hartford Courant report written by Alaine Griffin.

Connecticut's death row inmates will look to the state's highest court to answer questions about whether their exclusion from the state's new death penalty repeal violates their rights.

The case of triple murderer Richard Roszkowski is the backdrop for defense attorneys' challenge of the provision in the landmark legislation that abolishes the death penalty for future capital crimes committed in Connecticut but allows executions for those who committed capital crimes before the repeal.

The repeal excluded the 11 inmates already on Connecticut's death row.

Roszkowski was convicted and sentenced to die in 2009 for killing his former girlfriend, her 9-year-old daughter and his former roommate in Bridgeport. However, because of an error in jury instructions, a judge dismissed his death sentence and ordered a new penalty phase, which was scheduled to start in June.

At what was supposed to be a routine pretrial hearing for Roszkowski at Superior Court on Wednesday, Michael Courtney, head of the state Public Defender's Office capital defense unit, said that his office would file a brief by Aug. 7, posing nine questions to the state Supreme Court that deal with the constitutionality of capital punishment and of the prospective provision of the new state law. The unit also would file a motion to preclude the death penalty in Roszkowski's case.

"Our intention is to get this in front of the Supreme Court as soon as possible," Courtney said.

And:

Prosecutor C. Robert Satti Jr. questioned why Courtney was speaking at Wednesday's hearing because the question of whether Roszkowski would represent himself had not yet been resolved. Satti suggested that the legal maneuvers by the defense were an attempt to delay the start of the death-penalty trial.

Since late April, when the repeal was signed into law, defense attorneys have been waiting for the right moment to challenge the prospective provision. Roszkowski's case gives them the chance to fire their first salvo.

Roszkowski, however, threw up an unexpected hurdle Wednesday when he asked the judge to allow him to dismiss his public defenders and represent himself in the new penalty phase.

Judge Robert Devlin Jr. cautioned Roszkowski, 47, a high school dropout and former construction worker with a history of mental health issues, that his life was on the line and that he needed to "really know the law" if he wanted to act as his own lawyer, especially because his case would likely be the first test of the new law.

"Trial may give verdict on death penalty," by Daniel Tepfer for CT Post.

The future of the state's death penalty may rest on the shoulders of a Trumbull man who Wednesday insisted on being allowed to represent himself.

Although last month Gov. Dannel Malloy signed into law a repeal of the state's death penalty, the new law is not intended to affect the 11 men currently on death row including the two Cheshire home invaders.

However, during a hearing here Wednesday, Superior Court Judge Robert Devlin made it clear he believes the case of Richard Roszkowski could have a major affect on the current death row inmates.

But Roszkowski was more concerned with being allowed to represent himself so that he can get transcripts of his case. Dressed in a bright orange jumpsuit, a heavy chain wrapped around his waist, he began to stutter and throw out his right arm to emphasize his distrust of lawyers.

And:

The judge continued the case to June 6 when he said he will decide whether to allow Roszkowski to represent himself.

Coverage of Connecticut's repeal of capital punishment begins at the link.

The Montana Clemency Hearing

"Killer pleads for life; families ask for death sentence," is David Murray's report for the Great Falls Tribune.

"It is not our intent here today to in any way minimize the significance or severity of the crimes committed by Mr. Smith," said anti-death penalty attorney Ron Waterman at the beginning of the hearing. "Simply, it is a request for mercy."

Mercy and justice were central issues of the Ronald Smith clemency hearing in Deer Lodge on Wednesday. Does Smith's behavior in prison over the past 29 years warrant mercy on behalf of the criminal justice system? Was the severity of his crimes so heinous that the cause of justice demands the end of his life?

On Wednesday, a panel of three representatives from the Montana Board of Pardons and Paroles were asked to weigh the evidence pertaining to these questions. They will now have 30 days to deliver their answer.

Smith is the admitted gunman to two, cold-blooded murders in the summer of 1982.

And:

For eight hours on Wednesday, witnesses both supporting and opposed to clemency for Smith told their stories at the Powell County Courthouse. For most of that time, Smith, the admitted gunman in the murder of two Blackfeet men nearly 30 years ago, sat quietly and without a display of emotion. One by one, the witnesses rose to deliver their testimony. From a clinical psychologist, to a retired prison guard, from the former prosecutor who convicted Smith of homicide, to the still grieving families of the victims, each and every one told their stories.

More than 20 witnesses spoke to the Montana Board of Pardons and Parole. Their testimony will inform the board's decision on whether to grant Smith's request to reduce his sentence to life in prison without the possibility of parole.

Board chairman Michael McKee said the decision will hinge on whether the board members conclude that Smith's rehabilitation and remorse is genuine.

"Death row Canadian cries at mercy hearing as sister reads letter about mother," is Bill Graveland's Canadian Press post, via the Toronto Star.

The only Canadian on death row in the United States broke down and cried at his clemency hearing in Montana on Wednesday.

Ronald Smith’s sister Rita Duncan was reading a letter he wrote to their mother after her death last year.

Smith covered his eyes, brushed away his tears and was patted on the shoulder by his lawyer.

Duncan said Smith has always loved her and she is proud to be his sister.

Smith’s daughter, Carmen Blackburn, also cried as she talked about her father and his remorse. She said she wishes she could take away the pain she can see behind his eyes.

Smith is asking the Board of Pardons and Parole to recommend his death sentence for killing two men in Montana 30 years ago be commuted.

A psychologist told the hearing that Smith is a model prisoner and poses little threat to the people around him. Dr. Bowman Smelko said Smith has shown improvement during his time in prison, and his cognitive ability has jumped 16 points from low to high average.

“He was not exposed to drugs and alcohol. He was not exposed to chaos. He has demonstrated significant change in attitude, thoughts and behaviour,” Smelko said. “He is what would be considered a model prisoner in the modern setting.”

Smelko added that Smith has shown remorse about what he did.

The hearing has also heard that Smith is well-liked by prison guards. Two are expected to testify on his behalf.

The hearing, which represents Smith’s final fight for life, began with a last-minute addition to the witness list.

The hearing heard that a Canadian consular official based in Denver plans to read a statement from the government asking the board to spare Smith’s life. Ottawa had already written a letter favouring clemency, but critics say the government’s support has been tepid.

"Canadian consular official will call for double-murderer Ronald Smith to be spared death penalty," is by Jason van Rassel for Canada's National Post.

The dramatic testimony came during the first morning of a two-day clemency hearing at the Powell County courthouse for Smith, who was sentenced to death for the 1982 shooting deaths of Harvey Mad Man and Thomas Running Rabbit.

Relatives of Mad Man and Running Rabbit, cousins from the Blackfeet Indian reservation, filled one side of the courtroom and watched impassively as Smith’s sister, Rita Duncan, began her testimony by turning to face them and offering condolences.

“Our hearts have broken along with yours,” said Duncan, who told the gallery her brother is a changed man.

“The Ron Smith who is sitting in front of you today is not the same man who committed those crimes 29 years ago.”

Smith, 54, is the only Canadian facing execution in the U.S., and Canada’s official opposition to the death penalty has given the case an added political dimension and subjected it to scrutiny on both sides of the border.

Earlier coverage of Ronald Smith's case begins at the link.

An Update on the Hank Skinner Oral Argument - UPDATED

Jordan Smith has posted, "CCA Considers Hank Skinner's Death-Case DNA Appeal," at the Austin Chronicle.  For those following the Skinner case closely, it's a must-read:

Whether death row inmate Hank Skinner will be given access to DNA testing that could demonstrate he is not guilty of the 1993 killing of his girlfriend and her two sons is now in the hands of the Court of Criminal Appeals, which considered the case during oral argument this morning. Among the items of evidence that could be subject to testing for the first time, should the CCA allow Skinner the access he's been seeking for more than a decade, is a windbreaker – its cuffs spattered with blood, stained with sweat, and with two human hairs attached – that was found next to the body of Twila Busby, who had been bludgeoned to death in her home in 1993. She shared that home with her boyfriend, Skinner, and her two grown sons who were also slaughtered that night in the home. Also never before tested is a rape kit from Busby, a bag containing bloody knives and a bloody cloth, evidence found under Busby's fingernails and human hairs found clutched in her hands. To hear Skinner's lawyer Rob Owen tell it, if this evidence is finally tested, and comes back with DNA belonging to someone other than Skinner, it would be valuable evidence and, had it actually been available at the time of his trial nearly 17 years ago, would likely have convinced a jury that Skinner was not guilty of the grisly triple murder. "It changes the picture," he argued before the court. "Having the DNA evidence makes the jury look at the other pieces of evidence differently. Because I think jurors are inclined to accept DNA evidence as reliable."

Whether state law affords Skinner access to that evidence will be up to the nine judges of the CCA to decide.

To hear the state tell it, Skinner's bid to test the evidence now is merely an unreasonable, and unlawful, tactic undertaken to delay his execution, Solicitor General Jonathan Mitchell argued to the CCA this morning.

And:
That argument did not seem to impress the judges, several of whom noted that state lawmakers removed the so-called "fault provision" of the state's post-conviction testing law in 2011 – a noncontroversial repeal (prompted by Skinner's case) that Gov. Rick Perry readily signed into law. Even Judge Michael Keasler – who indicated that he found the circumstantial evidence against Skinner compelling – appeared frustrated by Mitchell's insistence that fault could be still legally be found and used as a way to deny Skinner access to DNA testing. "This is not anything that popped up right now," he noted, since Skinner has been asking for this same testing since 2001. "You ought to be sure before you strap a person down and kill 'em."

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

UPDATE - Brandi Grissom posts, "Judges Question State's Efforts to Stymie DNA Tests," at the Texas Tribune.

Sensitive to dozens of DNA exonerations in recent years, judges on the nine-member Texas Court of Criminal Appeals today grilled the Texas solicitor general about what harm could be done by granting death row inmate Hank Skinner's decade-old request for biological analysis of crime scene evidence.

"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said.

And:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court. 

"Prosecutors should be testing everything anyway," Keasler said.

The Court of Criminal Appeals has previously denied Skinner's requests, citing restrictions in the state's 2001 post-conviction DNA testing law that have since been repealed. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.

The court of appeals stayed Skinner's Nov. 9 execution date so they could determine how the change to the law should apply to his case.

The tough questions for the state today came as something of a surprise from the court, which typically favors prosecutors.

Texas CCA Hears Hank Skinner Request for DNA Testing

"Top Criminal Court to Hear Hank Skinner's DNA Plea," is the title of Brandi Grissom's post at the Texas Tribune.

Death row inmate Hank Skinner’s decade-long fight for DNA testing, which he hopes will prove his innocence in a grisly West Texas triple murder, will take center stage this morning in the state’s highest criminal court.

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

A decision from the Texas Court of Criminal Appeals could take weeks or months.

And:

Lawyers in the Texas attorney general’s office argue that Skinner is only trying to put off his inevitable execution and that the evidence of his guilt is so overwhelming that DNA testing is unwarranted. But Rob Owen, one of Skinner’s lawyers and the co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he is hopeful the Texas Court of Criminal Appeals will finally allow the testing.

“The facts of Mr. Skinner’s case bear some of the hallmarks of wrongful conviction cases from around the country,” Owen said. “For all these reasons, none of the state’s arguments diminish the urgent need for DNA testing in his case.”

The appeals court has denied Skinner's previous requests for testing, citing restrictions in the 2001 post-conviction DNA testing law. Lawmakers over the last several years, though, have repealed the restrictions that the court cited. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.

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

Georgia Pardon Board Stays Execution to Consider Clemency

Today's Columbus Ledger-Enquirer reports, "Execution of Taylor County inmate stayed by paroles board."  It's by Jim Mustian.

The state Board of Pardons and Paroles on Tuesday stayed the execution of Daniel Greene, a Taylor County prisoner who had been scheduled to die by lethal injection this week for fatally stabbing Bernard Walker, his former schoolmate, in 1991.

After a clemency hearing that lasted several hours, the board said in a statement that it needed more time “to examine the substance of claims offered by Greene’s representatives.” The board, which has the sole authority in Georgia to commute death sentences, noted that the stay can be lifted at any time, at which point the five-member panel will announce its decision.

The board has granted three stays since 2008 — including one to Troy Anthony Davis in 2007 — but clemency was later denied in all three cases and the inmates were executed, said Steve Hayes, the board’s director of communications. The board last commuted a case to life without parole in 2008.

At the same time the board was considering Greene’s fate, Taylor County Sheriff Jeff Watson was visiting with his former high school football teammate on Georgia’s death row. Watson spent about an hour with Greene and said he left feeling “blessed.”

“You could tell he was resolved to the fact that he had done wrong. He was being punished and it wasn’t anybody’s fault but his,” Watson said in a telephone interview. “He’s got incredible faith. All he wanted to talk about was forgiveness.”

The board’s decision offered Greene new hope just hours after a federal judge denied a lengthy motion by his attorneys to stay the execution. The court rejected a flurry of last-minute defense arguments, including claims that Greene was improperly denied a mental health expert at trial.

And:

The paroles board heard from about 10 representatives of Greene, “mostly teachers and preachers” who said that Greene’s violent rampage was uncharacteristic of the young man they’d known as a gentle giant, said Mark Shelnutt, the Columbus attorney who as a young prosecutor sat second chair to District Attorney Doug Pullen during Greene’s trial. Shelnutt said he addressed the board at length about the decision-making process prosecutors used at the time to determine whether to seek capital punishment in a case. “Most of the people that testified were people that knew him, like school teachers that talked about what a great kid he was in high school and also what a great kid Bernard Walker was and that it was a tragic situation,” Shelnutt said, “but obviously they didn’t think he should get the death penalty.”

Shelnutt said board members were attentive and seemed to be taking their decision seriously. “I left there thinking that he has a chance,” Shelnutt said of Greene. “I think they really want to do the right thing.”

One supporter of Greene was Patty James Bentley, a Taylor County Commissioner who wrote a letter to the board requesting it commute Greene’s sentence to life without parole. Bentley, who is running for state representative, recalled a time after she became pregnant at age 15 when she considered dropping out of high school because of the ridicule she was facing from her classmates.

“All throughout that year, Daniel always talked to me, told me not to listen to those crazy people, and did things to try and bring my spirits up when I felt down,” she wrote. “He made me feel like I was somebody.

“... I don’t know where I would be this day if Daniel had not reached out to me and treated me with kindness and dignity,” she added.

"Pardons board delays condemned Ga. man's execution," is the AP filing by Greg Bluestein.  It's via the Macon Telegraph.

The Georgia pardons board on Tuesday delayed the planned execution of a former high school football player who was set to die this week for killing an ex-classmate in 1991, saying it needed more time to consider the condemned man's case.

The decision grants Daniel Greene a reprieve of up to 90 days, though it could be lifted long before that. He had been scheduled to die on Thursday at the state prison in Jackson for killing 20-year-old Bernard Walker as Walker was rushing to help a store clerk who had been robbed and stabbed by Greene.

And:

In a videotaped interview, Greene confessed to the crimes and said he needed the money to buy crack cocaine. But he later said he couldn't remember committing the crimes or giving a confession to police, adding an acquaintance had given him a cigarette that day that may have contained a drug.

Greene, who was a standout defensive lineman in high school, had to be tried in Clayton County because of all the media coverage in his hometown. He was convicted in December 1992 of murder, robbery and assault and was sentenced to death.

"Parole board grants stay of execution," by Bill Rankin in the Atlanta Journal-Constitution.

The board, after a lengthy clemency hearing Tuesday, notified lawyers of its decision to stay the execution of Daniel Greene, Jeff Ertel, one of Greene's lawyers, said.

Numerous Taylor County residents spoke to the parole board, asking its members to grant Greene clemency and spare him from execution, Ertel said.

The board said the stay will not exceed 90 days.

In a statement, the board said the purpose of the stay is "to allow for additional time to examine the substance of claims offered by Greene’s representatives at today’s clemency appointment and any additional information that becomes available."

The board said it may lift the stay at any time and grant clemency, commuting the death sentence to life or life without parole, or deny clemency.

Related posts are in the clemency index.

Gerald Eldridge

"Court to rule if condemned Houston killer is sane," is the title of Allan Turner's report in today's Houston Chronicle.

Condemned double-killer Gerald Eldridge has told authorities he has seen spaceships, wrangled with a winged monster that keeps people from going to heaven and, during jailhouse visits, genially chatted with his old girlfriend, the same one whose 1993 murder sent him to death row.

Houston lawyer Lee Wilson says his client's behavior indicates he is incompetent to be executed. Lawyers for Texas Attorney General Greg Abbott counter that Eldridge is only faking to escape death.

On Monday, U.S. Judge Lee Rosenthal began hearing evidence regarding the killer's psychological soundness. In November 2009, she stayed Eldridge's execution two hours before lethal drugs were to have been administered, so the Houston laborer could receive additional psychological testing.

Opening testimony Monday, psychiatrist Dr. Pradan Nathan told the judge he had treated Eldridge for about a year on death row beginning in June 2010. Eldridge, he said, suffered from "looseness of association," a psychological malady he said was hard to fake. Nathan told the judge he had on several occasions modified dosage of powerful anti-psychosis drugs in an effort to curb his symptoms.

Nathan also testified that the inmate expressed fear that prison workers were poisoning his food. The fact that Eldridge had lost 50 pounds lent credence to the premise that the killer truly believed he was in peril, he said.

And:

Roe Wilson, chief of the Harris County District Attorney's post-conviction writ division, said "unusual beliefs" do not necessarily mean a killer is incompetent to be executed. Under state law, it must be determined the inmate is unaware he is to be put to death and why.

If found incompetent, he will be returned to death row. At the instigation of the District Attorney's Office, he subsequently may be re-evaluated and, if found competent, executed.

Earlier coverage of Gerald Elridge's case begins at the link.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright. more via Oyez.

I expect that we will be hearing more on this subject in the near future.  Steven Staley is scheduled to be executed by Texas, May 16.  Staley has a long history of severe mental illness and has been the subject of a court order to force medication in order to make him competent to be executed.

Related posts are in the mental illness and Scott Panetti indexes. Panetti's case involves the question of competency to be executed.  With this post I'm adding competency to the category index.

From North Carolina

"NC death penalty study author meets House members," is the AP filing via the Greenville Daily Reflector.

Members of a North Carolina legislative committee considering changes to the capital punishment system are getting to hear from the author of a study that raised concerns about racial bias.

Michigan State University law professor Barbara O'Brien headlines Tuesday's House Select Committee on Racial Discrimination in Capital Cases.

House Republicans are trying to fashion changes to the 2009 Racial Justice Act. Democratic Gov. Beverly Perdue vetoed a bill in December that essentially repealed the law, which allows a judge to reduce a death sentence to life in prison if the judge determines race was a significant factor in sentencing.

The Michigan State study found a North Carolina defendant is more than twice as likely to be sentenced to death if at least one of the victims is white.

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

Coverage of Connecticut Judiciary Committee Hearing on Repeal

Today's Hartford Courant reports, "Emotional Debate On Death Penalty Continues At Marathon Hearing."  It's written by Daniela Altimari.

For the third time since 2009, the legislature's judiciary committee on Wednesday pondered the fate of Connecticut's death penalty, but those who want to abolish capital punishment believe this may be their year.

"I think there's a real sense of urgency," Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said Wednesday evening, about eight hours into a hearing on the topic. "We debated this so often, we just need to seal the deal."

Jones noted that this year, the two Democratic Senate leaders, President Pro Tem Donald Williams of Brooklyn and Majority Leader Martin Looney of New Haven, were among the first to testify in support of the bill, which would replace the death penalty with life in prison with no possibility of release. And, he said, the NAACP is also making a big push for repeal.

The emotional topic of repealing the state's death penalty drew large crowds to the state Capitol complex but the one individual whose pro-death penalty view has dominated the debate in recent years did not attend. Dr. William Petit, the sole survivor of a horrific home invasion in Cheshire in 2007, has been a familiar presence at past legislative hearings on the topic, but this time, neither Petit nor his sister, Johanna Petit Chapman, was present.

"Hearing on Connecticut death penalty repeal draws no support for status quo," is the New Haven Register coverage by Jordan Fenster.

Four hours into public testimony today on a death penalty repeal proposal, not a single speaker was in favor of maintaining the status quo.

There were some objections to repeal aired, however, coming from members of the legislature’s Judiciary Committee as they listened to public testimony Wednesday.

The bill currently under review is prospective in nature — should repeal pass, the death penalty would still apply to the 11 inmates currently on Death Row. It is the effect repeal would have on death sentences already handed down that was a source of concern for some committee members

The AP report is, "Lawmakers consider death penalty repeal," by Shannon Young.  It's via the Stamford Advocate.

Some lawmakers who oppose efforts to repeal Connecticut's death penalty say that any measure to end it should also ensure that inmates who would have been destined for death row are segregated from the general prison population if it passes.

Enfield Sen. John Kissel, ranking member of the General Assembly's Judiciary Committee, discussed potential compromises to the legislation at the bill's Wednesday public hearing.

The death-penalty-repeal bill being considered this session would abolish the punishment for all future cases. Instead, the death penalty would be replaced with life imprisonment without the possibility of release. The bill would not directly affect inmates currently on death row, but the state's Chief Public Defender's Office has said it would likely pursue appeals to change the sentences of these prisoners to life imprisonment without release.

And:

Connecticut Department of Correction spokesman Brian Garnett said that while capital felony inmates receive more privileges than their death-row counterparts, the state does not isolate any prisoners.

Kissel and Cheshire Rep. Al Adinolfi said if the bill is passed, they would like to see these inmates segregated and isolated from the general prison population.

The state's Chief Public Defender Susan Storey, who testified at the hearing, said studies have shown that solitary confinement and segregation of these inmates leads to mental illness and increases the likelihood of prison violence.

In 2009, a death-penalty-repeal bill passed the Legislature, but was ultimately vetoed by then-Gov. Jodi Rell. A similar effort failed in the Senate, last year, due largely to the ongoing death penalty trial in a fatal Cheshire home invasion case.

"State's death penalty remains hot topic, by JC Reindl at the Day.

State lawmakers heard hours of testimony Wednesday on a bill that, as written, would repeal the state's death penalty for future crimes and, some believe, could end up sparing the lives of those now on death row.

The legislation is nearly identical to a bill that passed the committee last year. That bill did not reach a vote when state Sens. Edith Prague, D-Columbia, and Andrew Maynard, D-Stonington, withdrew their support after meeting with Dr. William Petit Jr., the lone survivor of the 2007 Cheshire home invasion and triple slaying.

The two men convicted of killing Petit's wife, Jennifer Hawke-Petit, and their daughters, 11-year-old Michaela and 17-year-old Hayley, are currently on death row.

The bill calls for a "prospective" end to capital punishment, meaning that all 11 of the state's death row inmates would still face execution. In future cases, the execution sentencing option would be replaced by life imprisonment without parole.

This "prospective" aspect is viewed as crucial for attracting lawmakers who would not support a repeal that preserves the lives of those currently on death row.

Earlier coverage of the Connectcut repeal legislation begins at the link.

The Larry Swearingen Case

Bllomberg posts, "High Court Won’t Hear Death Row Inmate’s Claim of Innocence," by Bob Drummond.  It's via Business Week.

The U.S. Supreme Court today refused to consider stopping the execution of Larry Ray Swearingen, a Texas death row inmate who says newly uncovered evidence proves his innocence.

Swearingen’s lawyers had asked the high court to decide for the first time whether executing an innocent person constitutes cruel and unusual punishment under the Constitution.

Lower federal courts declined to intervene in Swearingen’s case in part because, as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution.

And:

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

In a 1993 Supreme Court decision, seven justices said they at least presumed, for argument’s sake, that the Constitution prohibits putting innocent people to death. The high court, however, has never turned that hypothetical discussion into a concrete rule of law.

The court ruled in 1993’s Herrera v. Collins decision that new evidence, by itself, says nothing about whether a defendant’s rights were respected during an earlier investigation and trial. An inmate needs additional evidence of a separate constitutional violation to warrant a federal court’s involvement, the high court ruled.

“Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution,” then-Chief Justice William Rehnquist wrote for a 6-3 majority. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”

Rehnquist acknowledged the stakes would be keenest in death penalty cases.

“We may assume, for the sake of argument,” he wrote, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”

Even then, the court said, the standard for assessing new evidence would “be extraordinarily high.”

More onthe Supreme Court's 1993 ruling in Herrea v. Collins, via Oyez.

A state court hearing on Swearingen's case got underway yesterday.  "Condemned killer Swearingen back in court," is Renée C. Lee's Houston Chronicle report.

After receiving his third stay of execution last year, condemned killer Larry Swearingen is back in court trying to gain a new trial and prove his innocence.

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Jordan Smith filed a preview of the hearing, "Dissecting the Science of Death," for the Austin Chronicle.

The question of whether the science of death and decomposition can prove that Larry Swearingen, now on death row, was not responsible for the 1998 kidnapping and murder of 19-year-old Melissa Trotter, will be taken up in district court in Montgomery County starting Feb. 27.

Trotter disappeared on Dec. 8, 1998. It was finals week at Montgomery College where she was a student; she attended a science class review and did some work on a computer in the college's library, then she disappeared. Three days later, Swearingen was arrested on outstanding warrants; he's been behind bars ever since. Although the portion of the Sam Hous­ton National Forest where she was ultimately found had been searched several times, by both law enforcement and others, her body was not discovered until Jan. 2, 1999. Swearingen was subsequently charged and convicted of capital murder and sentenced to die.

At issue, however, is whether science actually proves Swearingen's innocence. Accord­ing to Swearingen's defense attorney James Rytting and a bevy of medical experts – including a number of well-respected Texas medical examiners – it is impossible for Trotter to have been dead for more than a few days when her body was found. And if she had been dead for less than a week, Swearingen could not have been the killer because he was already in jail. Specifically at question is whether Trot­ter's body displayed the kind of decomposition expected of a body left outside for several weeks in the forest in December. Accord­ing to evidence first provided to the defense in 2009, the answer is no; histological samples of Trotter's heart, lung, and vascular tissue is more consistent with a person dead mere days before she was found.

Earlier coverage of Larry Swearingen's case begins at the link.  Related posts are in the forensics index.

Alabama Roundup

Andrew Cohen posts, "Another Death Row Debacle: The Case Against Thomas Arthur," at the Atlantic.  Here's the beginning:

Another month, another man on death row, another excruciating case that illustrates just some of the ways in which America's death penalty regime is unconstitutionally broken. This time, the venue is Alabama. This time, the murder that generated the sentence took place 30 years ago. And this time, there is an execution date of March 29, 2012, for Thomas Arthur, a man who has always maintained his innocence. He also has the unwelcome distinction of being one of the few prisoners in the DNA-testing era to be this close to capital punishment after someone else confessed under oath to the crime.

Late last month, I profiled the wobbly capital conviction against Troy Noling in Ohio and there are remarkable similarities between it and the Arthur case. Both involve white defendants. Both include contentions of innocence and allegations of bad lawyering at trial. Both include a lack of physical evidence linking the defendants to the crime. Both include crucial witness testimony that borders the farcical. And both include state officials reluctant to permit sophisticated DNA testing that might definitively answer questions about whether the defendants committed the murders they will die for.

Arthur's attorneys are even willing to pay for that testing, the few thousand bucks it would be, and the testing could be completed by the execution date. It is here where prosecutors and judges lose me when they prioritize "finality" in capital punishment cases at the expense of "accuracy." It would cost Alabama nothing to let Arthur's lawyers do the testing. And it might solve a case that already has cost the state millions of dollars. Instead, Alabama wants to finally solve its Arthur problem by executing him. No matter how the new DNA test could come out, the state is more interested in defending its dubious conviction.

The Arthur case is also the topic of Andrew Rosenthal's New Yort Times blog post, "Is Alabama About to Execute an Innocent Man?"

Last Wednesday, Alabama scheduled the execution of Thomas Arthur for March 29. I object to the death penalty under all circumstances, but Mr. Arthur’s case is particularly troubling, because it’s possible that he’s innocent.

Mr. Arthur has been on death row since 1982 for the murder of Troy Wicker. He was not an upstanding citizen. At the time of the killing, Mr. Arthur was an inmate at the Decatur Work Release Center serving a sentence for a previous conviction (for second-degree murder). But his character shouldn’t distract us from the facts: No physical evidence linked him to the murder; no murder weapon was found; another man, Bobby Ray Gilbert, confessed to the crime under oath.

DNA testing of evidence in 2009 failed to place Mr. Gilbert at the scene, and a Jefferson County Circuit Court judge ruled that he had lied. This logic seems flimsy. Remember, there’s no DNA evidence proving that Mr. Arthur committed the crime, either.

Mr. Arthur has requested advanced DNA testing of a wig worn by the killer, which could help establish his innocence (or his guilt, for that matter). The Alabama authorities have so far opposed additional testing—despite the fact that Mr. Arthur’s counsel has offered to pay for it and that it could be completed before his execution date.

 Earlier coverage of the Tommy Arthur case begins at the link.

There is also other case news from Alabama, one involving the state's judicial override on death sentences and the other involving indigent defense costs.  First, "Attorney weighs new legal challenge in Henderson case," by Jim Mustian of the Ledger-Enquirer, via the Macon Telegraph.

More than four months after a Lee County jury recommended life in prison for Gregory Lance Henderson, the convicted cop killer’s fate remains in the hands of Circuit Court Judge Jacob A. Walker III.

The judge will decide whether to accept the jury’s 9-3 vote against capital punishment or override it and send the Columbus man to Alabama’s death row. But defense attorney Jeremy W. Armstrong of Phenix City has been exploring a fresh legal challenge to Henderson’s eligibility for execution that could change the equation in an emotional case that shook the East Alabama law enforcement community.

Henderson was found guilty in October of running over and killing Lee County deputy sheriff James W. Anderson during a September 2009 traffic stop in Smiths Station, Ala. His sentencing, initially set for Jan. 31, has been postponed twice, most recently because Armstrong has sought to determine whether Henderson is mentally retarded and therefore legally immune to capital punishment.

The development could delay the case indefinitely if additional testing is warranted. Walker has scheduled a hearing Wednesday to discuss a new sentencing date and Armstrong’s recent motion for continuance.

Coverage of Alabama's practice of judicial override begins at the link. The U.S. Supreme Court ruled in 2002 that the execution of those with mental retardation is unconstitutional; more on Atkins v. Virginia, via Oyez.  As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

"Alabama wants Amy Bishop trial judge to cancel order for payments to expert witnesses," is by Brian Lawson for the Huntsville Times.

Attorneys for the Alabama Comptroller's Office want the judge in the Amy Bishop capital murder case to vacate his orders for payments to defense expert witnesses and testing, according to a court filing today.

Bishop is set to go on trial March 19 on charges she killed three fellow University of Alabama in Huntsville biology faculty members and attempted to kill three other university employees on Feb. 12, 2010.

The trial date may be in some doubt as Bishop's court- appointed attorneys have asked Circuit Judge Alan Mann to delay the trial until the Alabama Court of Criminal Appeals rules on the state's refusal to accept Mann's orders to make payments for expert witnesses and related testing of Bishop by a neurologist.

And:

Alabama Comptroller David White argues in the filing that a new Alabama law governing payments to expert witnesses does not cover the Bishop case since it began before the law was passed. Previously, Alabama law did not include prior payments to expert witnesses before a case ended. The practice has been criticized by defense attorneys who argue it leaves them either paying for experts out of their own pockets, or being forced to try and find experts, often not as well-regarded in their fields, who are willing to wait months or years to be paid.

The most recent coverage from Alabama concerned the U.S. Supreme Court's ruling in Maples v. Thomas.

First RJA Hearing Concludes in North Carolina

"Death-Penalty Racial Law Is Tested," is Ashby Jones' report for the Wall Street Journal.

The fate of one death-row inmate in North Carolina—and possibly dozens more—is now in the hands of a judge following a 2½-week hearing that for the first time tests a law that would let an inmate off death row if race is found to have been a "significant factor" in the sentence.

In a crowded courtroom here, Cumberland County Judge Gregory A. Weeks heard closing arguments Wednesday on a case involving the death sentence of Marcus Reymond Robinson, a black man convicted in 1994 of murdering a 17-year-old white man during a robbery.

Judge Weeks's challenge: to answer the nebulous question of whether race likely played an improper role in jury selection on capital cases around the time of Mr. Robinson's trial.

The decision, which should come in the next few weeks, will likely set a precedent for what happens with the state's other death-row inmates. Nearly all of North Carolina's 157 death-row inmates, including roughly 60 white inmates, have challenged their death sentences on racial-bias grounds.

And:

On its face, the law doesn't require a defendant to prove that bias took place in his case specifically. An inmate need only prove, with statistics, that race weighed heavily in prosecutors' and jurors' decisions concerning the death penalty "in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed."

The only other state with a similar law is Kentucky, but defense lawyers there haven't used it much because they must show strong evidence of discrimination in an individual case and are barred from basing claims solely on statistics.

"Racial Justice Act case hearing ends," by Anne Blythe in Raleigh's News & Observer.

A hearing in the first Racial Justice Act case ended with a flourish of historic references Wednesday as prosecutors and defense lawyers spoke of Athenian justice, race relations in the armed forces and famous civil rights cases in their closing arguments.

But as Cumberland County Superior Court Judge Gregory Weeks mulls his ruling, he may spend more time considering statistics and numbers than arguments.

On Wednesday, after two and a half weeks of testimony in Fayetteville from statisticians, researchers, prosecutors and District Court judges, the closing arguments concluded the hearing on a request for sentencing relief from Marcus Reymond Robinson, a death row inmate.

And:

The hearing included testimony from dueling statisticians and researchers.

Defense attorneys used a sweeping study of capital cases in North Carolina done by Michigan State University law school researchers to bolster their claims.

That study found that qualified black jurors - those not released for cause, such as opposition to the death penalty - were struck by prosecutors at nearly twice the rate as qualified white jurors. In Cumberland County, they were struck at 2.6 times the rate, according to the researchers.

Prosecutors called prosecutors, judges and a political scientist to bolster their claims that race is not among their considerations when weighing whether to strike a potential juror.

"First Racial Justice Act hearing concludes in Fayetteville," by Paul Woolverton in the Fayetteville Observer.

Researchers at Michigan State University studied peremptory challenges by prosecutors in 173 death penalty trials from 1990 to 2010 and concluded prosecutors peremptorily struck black potential jurors more than twice the rate as they struck non-black jurors.

In Robinson's trial, the rate for blacks was 3.5 times that of non-blacks.

Thompson and Colyer contend that there are legitimate, non-race-based reasons for the jury strikes. They also say the Michigan State study had severe flaws and the researchers were not qualified to assess jury selection in capital murder trials.

Robinson's lawyers say the reasons given to strike a black juror often are pretextual excuses to mask racial bias. And, regardless, they said, even when the non-racial reasons are accounted for, blacks were still struck at twice the rate as whites across the state.

"If you're black, you're much less acceptable to the state," said Durham lawyer Jay Ferguson for Robinson.

Senior Resident Superior Court Judge Greg Weeks, the presiding judge, said he would give the lawyers four to five weeks to submit legal briefs and he will make a ruling sometime later.

The Greenville Reflector carries the AP filing, "Closing arguments conclude in Racial Justice case."

"We hope that what this case will do, as the first case of the Racial Justice Act, is to move us to a point where we do open up that process, and where we do eliminate the harm that's done to the system itself by limiting and excluding folks from serving on a jury as a result of race," said lawyer James Ferguson II of Charlotte on behalf of Robinson.

Prosecutor Cal Colyer had to pause a few times during his presentation to remain composed.

"''The goal may be admirable with respect to this legislation, but it is an insult to the prosecutors, to the judges, and yes, even to the defense attorneys in this case," Colyer said.

The Fayetteville Observer provided Daily Coverage of the RJA hearing; all written by Paul Woolverton.  Here are links to the daily reports:

• Retired statistics professor disputes prosecution's testimony (2/15)
• Political scientist says juror ideology, not racism, can explain study's results (2/14)
• Forsyth County lawyers disagree on Racial Justice Act's effect (2/12)
• Defense tries to discredit testimony of state expert witness (2/11)
• Prosecution statistician says white and black jurors seated at same rate (2/10)
• Lawyers debate statistic expert's testimony in Racial Justice Act hearing (2/9)
• Ruling blocks judge's answer in Racial Justice Act hearing (2/8)
• Ex-Cumberland County prosecutor John Dickson disputes racial bias claims (2/8)

Earlier coverage of the North Carolina RJA hearing begins at the link.  Related posts are in the race index.

Judge Harle to Recommend Court of Inquiry to Proceed in Morton Exoneration

"Anderson should face inquiry, judge rules," Chuck Lindell's Austin American-Statesman post.

Former Williamson County district attorney Ken Anderson should face a court of inquiry to examine allegations that he violated state law by withholding evidence that could have spared Michael Morton from a wrongful conviction and almost 25 years in prison, a district judge ruled today.

After a 75-minute hearing, District Judge Sid Harle ruled that there is probable cause to believe that Anderson may have broken state law in the Morton case.

Noting that the allegations to date have been spurred by Morton’s lawyers, Harle said a court of inquiry would give Anderson a chance to clear his name and Morton a chance to seek a greater measure of justice.

Harle will put his request in writing - he gave no timeline - to Texas Supreme Court Chief Justice Wallace Jefferson, who will determine whether to convene a court of inquiry to examine the allegations.

If Jefferson agrees, the Supreme Court would assign a state district judge to oversee the court of inquiry, which is a fact-finding body that would determine whether any state laws were violated. The court would not issue a punishment or criminal conviction.

After the hearing, Morton choked up briefly when facing reporters. “When you do the right thing, like the judge did today, everything falls into place,” said Morton, now sporting a gray goatee.

Anderson, now a district judge in Georgetown, was not in court. His lawyer, Mark Dietz, said Anderson looks forward to the court of inquiry. “It does give him the ability to clear his name,” Dietz said.

"Judge Orders Court of Inquiry for Morton Prosecutor," by Brandi Grissom at the Texas Tribune.

Judge Sid Harle said today he will recommend that Texas Supreme Court Chief Justice Wallace Jefferson convene a court of inquiry to review a slew of evidence against former Williamson County prosecutor Ken Anderson and determine whether there is probable cause to press criminal charges of prosecutorial misconduct related to his work in 1987 to secure a wrongful murder conviction that sent Michael Morton to prison for life.

In addition to allowing a full public airing of the evidence, the Bexar County state district judge said the unique legal proceeding would allow Anderson, who is now a district judge, the opportunity to clear his name.

“The only method and venue I know of for that to occur and for Mr. Morton’s interests to be served” is a court of inquiry, Harle said.

Morton was convicted of the 1986 murder of his wife, Christine Morton, who was bludgeoned to death in the couple's North Austin home. DNA testing results last year showed that Morton was innocent and that another man was likely responsible for his wife's gruesome death. After spending 25 years in prison, he was released in October and charges against him were dismissed in December.

And:

In November, Mark Norwood, the man whose DNA was connected to Christine Morton's death and to the 1988 killing of Debra Masters Baker, was arrested and charged with murder. A Williamson County grand jury indicted Norwood this month.

Baker’s family, including her husband Phillip, her son Jesse, her daughter Caitlin and her sister Lisa Conn, were in the courtroom for the proceedings Friday. The family joined in Morton’s request for the court of inquiry.

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

FDA Sued Over Lethal Injection Imports

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

Related posts are in the lethal injection index.

Race and Death Penalty Juries

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage of the RJA begins at the link.

More Aftermath to the Morton Exoneration

Brandi Grissom posts, "Travis County Looks at Possible Norwood Link in Murder," at the Texas Tribune.

The Travis County district attorney’s office is discussing whether to review a 1985 murder case in connection with Mark Norwood, raising new questions about whether another innocent man could be in prison for a murder linked to the former handyman and carpet layer. 

Dennis Davis, a former Austin recording studio owner, was convicted last year of murdering his ex-girlfriend Natalie Antonetti in 1985. But the manner in which Antonetti was murdered is eerily similar to the two killings with which Norwood has already been connected. 

"That’s why the discussion needs to occur, based on the similarities," Buddy Meyer, a Travis County assistant district attorney, said Friday. Meyer said his office is discussing whether to review the Davis conviction and compare the evidence in the Antonetti murder to the other two murder cases.

Norwood, 57, was arrested in November and charged with the 1986 murder of Christine Morton in North Austin. His DNA, along with Christine Morton's blood, was identified on a blue bandana found near the murder scene. Norwood's DNA was also identified on a pubic hair found at the scene of the 1988 murder of Debra Masters Baker in Austin. He has not been charged in connection with her death but is considered a suspect.

All three women were beaten to death as they slept. The assailant entered their homes in the early morning hours, and all three were bludgeoned with a large, blunt wooden object. The three women were all attractive brunette mothers in their 30s. And each of the murders occurred on the 13th day of the month.

And:

Meanwhile, Morton's lawyers are pursuing a court of inquiry to determine whether the prosecutor who sent him to prison a quarter-century ago committed criminal misconduct.

The article notes that Judge Sid Harle will hold a hearing on February 10 on the question of a court of inquiry.

The Tribune also posts, "Texplainer: What is a Court of Inquiry?"  It's written by Holly Heinrich.

Hey, Texplainer: What is a court of inquiry and when is it used? 

When Texas district judges have probable cause to believe state laws have been broken, they may ask the district’s presiding administrative judge to appoint another district judge to commence a court of inquiry, which reviews the evidence and could issue an opinion reaffirming or disapproving an earlier opinion. The court of inquiry, which was established in 1876, can be called to review a past case or any other criminal matter brought to the district judge. 

Courts of inquiry are unique to Texas, although the U.S. military uses a legal proceeding by the same name to investigate its internal affairs. 

Although the law would allow a district judge to request an inquiry in any instance where state laws may have been broken, Texas judges have in recent years used this obscure and once seldom-used provision to investigate possible wrongful convictions. Courts of inquiry have also been used to investigate a prostitution ring and reports of bribery in a county probate court. 

So why request a court of inquiry instead of going to the police or taking a more typical route through the legal system? The reasons vary from case to case, but individuals could seek courts of inquiry because they believe there is corruption or potential conflicts of interest in the legal or law enforcement institutions they would otherwise turn to. Courts of inquiry can also review evidence that would not be admitted to other courts, such as hearsay.

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

Tarrant County Death Sentenced Reduces for Brady Violation

The action was expected following an agreement reached last year.  "Chelsea Richardson's sentence officially reduced," is the Fort Worth Star-Telegram report written by Alex Branch.

If Chelsea Richardson felt relief when her death sentence officially became a life sentence, she did not show it.

Richardson was back in a Tarrant County courtroom Tuesday, this time to hear visiting Judge Steve Herod accept a sentencing agreement reached by prosecutors and her attorneys for the 2003 murders of Rick and Suzanna Wamsley of Mansfield.

Wearing a baggy yellow jail jumpsuit and dark-rimmed glasses, Richardson, 27, spoke only to acknowledge that she waived her right to appeal.

The hearing was mostly a formality. The Texas Court of Criminal Appeals overturned Richardson's death sentence in November.

The judges ruled that the punishment phase of Richardson's trial in 2005 was affected by misconduct by then-prosecutor Mike Parrish, who withheld evidence from the defense. Parrish retired in 2008.

Richardson and her boyfriend, Andrew Wamsley, were convicted of capital murder in separate trials for the deaths of his parents. Authorities said Andrew Wamsley, Richardson and a friend, Susana Toledano, killed the couple so that Andrew Wamsley could inherit his parents' $1.56 million estate.

Richardson was the only one to receive the death penalty.

Under the new sentence, she must serve 40 years before she is eligible for parole. She will get credit for time served.

Richardson's attorney, Robert Ford, who led efforts to get her conviction overturned, died last year. Attorney Bill Ray represented her at the hearing.

Earlier coverage of Chelsea Richardson's case begins at the link.  Misconduct by the same prosecutor was also an issue in the case of Michael Toney, freed from death row in 2009.

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

re here: http://www.star-telegram.com/2012/01/17/3667020/chelsea-richardsons-sentence-officially.html#storylink=cpy

Mental Retardation Cited in Death Row Appeal

"That's the title of a report in today's San Antonio Express-News by Guillermo Contreras.  It's subtitled, "Lawyers say their client's rights would be violated."

A man on Texas' death row for the 1997 killing of a Kerrville rancher is asking a judge to set aside his capital punishment, arguing his constitutional rights would be violated if he's put to death because he is intellectually disabled.

Appellate lawyers for Ramiro Hernandez-Llanas made the request Wednesday at a hearing in San Antonio before U.S. District Judge Xavier Rodriguez.

In September, Rodriguez turned down Hernandez-Llanas' request for habeas corpus (a type of appeal), but his lawyers Wednesday asked the judge to reconsider, arguing that Rodriguez made his decision based on incorrect information provided by a clerk who reviews death-penalty habeas petitions for the court.

Sheri Johnson, a professor at Cornell Law School, told Rodriguez the clerk included arguments and factual errors that were never made by prosecutors, which suggests a “deviation from neutrality by the clerk.”

She further argued a previous ruling by a state judge also contained mistakes about whether Hernandez-Llanas met the threshold for “intellectual disability,” formerly called mental retardation.

She asked Rodriguez to assign the case to a new clerk so the judge would get a more accurate portrayal of the arguments and facts in Hernandez-Llanas' case.

And:

Doctors called by his defense team described him as a man of low intelligence and possibly mentally retarded. But the state's experts countered that he is of average intelligence, the San Antonio Express-News reported at the time.

But law Professor Johnson argued there's more evidence — low IQ scores, not being able to make change, or take a bus and other factors — showing Hernandez-Llanas' mental disability met the threshold that would weigh in his favor against the death penalty.

The U.S. Supreme Court ruled in 2002 that the execution of those with mental retardation is unconstitutional; more on Atkins v. Virginia, via Oyez. 

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

What's Next for Michael Morton

Attorneys for Michael Morton filed a "Report to Court" with exhibits; both available in Adobe .pdf format.  Morton is asking for a court of inquiry to examine possible prosecutorial misconduct in his case.  The State Bar of Texas is already looking into the mattter.

"Charges against Morton formally dismissed; inquiry sought on prosecutor's actions," is the title of Chuck Lindell's latest report in today's Austin American-Statesman.

Michael Morton completed one leg of his legal journey Monday when a judge formally dismissed his murder charge, declaring him innocent of the crime that cost him almost 25 years in prison.

But District Judge Sid Harle delayed a decision on Morton's second request: that a special court examine allegations that his prosecutor, Ken Anderson, broke several laws by concealing evidence before, during and after Morton's trial.

Harle said he needed more time to review the request to convene a court of inquiry, an ad hoc, fact-finding process often used when the actions of a public official have been called into question.

A decision is not expected before year's end because Harle also offered Anderson, now a Georgetown district judge who has repeatedly denied allegations of misconduct in Morton's 1987 trial, a chance to file briefs opposing the inquiry.

The state's highest criminal court has already voided Morton's conviction in the murder of his wife, Christine Morton, who was beaten to death while lying in bed in their southwestern Williamson County home.

But Harle's signature Monday on the motion to dismiss charges formally released Morton from the murder case and brought the hearing to a close with a standing ovation from a packed courtroom.

"What befell you and your family many years ago was a horrendous tragedy," Harle said, commending Morton for never giving up his fight for innocence, even when he was offered a chance at parole if he accepted responsibility for his wife's murder.

And:

To call for another district judge to lead a court of inquiry, Harle would have to agree that there is probable cause that Anderson violated Texas law in his handling of the case. If the court is convened, Anderson would not be a defendant. Instead, the judge would attempt to determine, using affidavits and courtroom testimony, whether laws were broken.

Most of Monday's hearing was devoted to a 140-page report detailing the results of a defense-led investigation begun after Morton's release from prison in early October.

Morton lawyer Barry Scheck, co-founder of the Innocence Project in New York, told Harle that the investigation's findings strongly suggested that Anderson concealed several pieces of evidence from Morton's trial lawyers in violation of two state laws: tampering with physical evidence, a felony punishable by up to 10 years in prison that includes concealing "any record or document," and intentionally concealing a government record, a misdemeanor punishable by up to a year in jail.

Brandi Grissom posts, "Cleared of Murder, Morton Seeks Accountability," for the Texas Tribune.

A beaming Michael Morton kissed the piece of paper he had been waiting nearly 25 years for on Monday after Judge Sid Harle stepped down from the bench, shook his hand and gave him the order that officially cleared him of his wife’s 1986 murder.

"This is a happy day, obviously," Morton said after the court proceeding, his voice quaking. "But let's not forget this was a horrible crime. My wife's brains were splattered all over the bedroom, the ceiling."

Murder charges against the former grocery store manager were formally dismissed on Monday. Morton spent a quarter century behind bars for a crime that DNA evidence revealed this year he did not commit, and he was released from prison in October.

For Morton, though, the day full of hugs and happiness was not just about freedom. It was also about holding accountable the prosecutor who he alleges withheld evidence that could have led to his acquittal back in 1987. Morton and his lawyers asked Harle, a Bexar County state district judge, to launch an unprecedented court of inquiry to determine whether Ken Anderson broke state laws and violated professional ethics codes by withholding evidence when he prosecuted Morton.

And:

They argue that Anderson concealed police reports that Judge William S. Lott ordered him to disclose during the 1987 trial so that he could determine whether they might help Morton’s case. Lott found nothing exculpatory in the few pages he was provided by Anderson and ordered the record sealed.

When a different judge ordered the record unsealed in August, Morton’s lawyers discovered that Anderson had provided very few of the available police reports. Crucial pieces of evidence were missing, including a transcript of a telephone conversation between a sheriff’s deputy and Morton’s mother-in-law in which she reported that her 3-year-old grandson had seen a “monster” — who was not his father — attack and kill his mother. 

Police reports from Morton’s neighbors were also missing. They told police they saw a man in a green van park near their home and walk into the woods behind their house. Gone from the file, too, were reports that Christine Morton’s credit card had been used and a check with her forged signature cashed after her death.

When Harle freed Morton based on the DNA evidence in October, he also authorized an unusual process that allowed his defense lawyers to investigate Anderson's conduct. The lawyers deposed the lead sheriff’s investigator, an assistant district attorney who worked with Anderson and the former prosecutor himself.

The AP report is, "Wrongfully imprisoned man wants probe," by Juan A. Lozano.  It's via the Lubbock Avalanche-Journal.

A man wrongfully imprisoned for nearly 25 years for his wife’s murder said Monday that revenge isn’t his motive for seeking an investigation of the prosecutor he and his attorneys believe concealed evidence at his trial.

“A lot of people think I want a pound of flesh,” said Michael Morton, who was freed after new DNA evidence tied another man to the crime. “Revenge is a natural instinct, but it’s not what I’m looking for here, just accountability.”

Morton, 57, spoke Monday after a court hearing in which his attorneys presented findings from a blistering 138-page report in which they accuse the prosecutor in his case of committing “serious acts of misconduct.” The report asks state District Judge Sid Harle to assemble a special court of inquiry to investigate former prosecutor Ken Anderson on charges he disregarded an order at the original trial to turn over all evidence that could have supported Morton’s claims of innocence. The report also accuses Anderson of tampering with evidence and court records.

Fighting back tears, Morton said although his false imprisonment cost him a quarter century of his life and the chance to enjoy his son’s childhood, Monday was a “happy day” because he was able to ask a judge to investigate the allegations against Ken Anderson, who is now a state district judge.

And:

Morton’s attorneys also recommended several policy reforms for lawmakers to consider, including having the Texas Legislature hold hearings on simplifying rules for turning over evidence that could point to a defendant’s innocence.

"‘Extraordinary Legal Event’ Unfolds as Man Exonerated of Wife’s Murder Seeks to Hold DA Accountable,"
by Martha Neil at the ABA Journal.

If given the green light by Judge Sid Harle, a visiting jurist from Bexar County who took over the Morton case in August, the inquiry would apparently be the first of its kind concerning any of the more than 200 inmates nationwide who have been exonerated, like Morton, due to DNA evidence, according to the Times.

“I haven’t seen anything like this, ever,” law professor Bennet L. Gershman of Pace University told the newspaper. “It’s an extraordinary legal event.”

Anderson says he did nothing wrong and has questioned the authority of the court to investigate his work as a prosecutor so long ago.

Yesterday's New York Times carried, "Exonerated of Murder, Texan Seeks Inquiry on Prosecutor," by John Schwartz and Brandi Grissom.

Mr. Morton, who was a manager at an Austin supermarket and had no criminal history, was charged with the beating death of his wife, Christine, in 1986. He had contended that the killer must have entered their home after he left for work early in the morning. But Mr. Anderson convinced the jury that Mr. Morton, in a rage over his wife’s romantic rebuff the previous night — on Mr. Morton’s 32nd birthday — savagely beat her to death.

Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with the court to test DNA on a blue bandanna found near his home shortly after the murder, along with other evidence.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

Mr. Norwood has been arrested and charged in Mrs. Morton’s death and is a suspect in a similar murder from 1988.

And:

In an interview, Mr. Scheck said he hoped the court of inquiry proceeding would result in changes in law and policy that could promote greater fairness in criminal cases. Previous high-profile exonerations, he said, have led to new laws that improved access to DNA testing after conviction and provided generous compensation to those who were wrongfully convicted.

“This is one of those catalytic, iconic cases that leads to reform,” he said.

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

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

Coverage of the Ohio Legislative Hearing

"Writer of death penalty law: It's not working," is the updated AP report by Andrew Welsh-Huggins.  It's via the Lancaster Eagle Gazette.

A Supreme Court justice who helped write the state's death penalty law testified Wednesday that the law isn't working and should be scrapped.

Justice Paul Pfeifer said the law was meant for the worst offenders but has been used more haphazardly through time.

"The statute does not work the way we expected," Pfeifer told the House Criminal Justice Committee. "What has enfolded is an application that is hit or miss depending on where you commit the crime and the attitude of the prosecutor in that county."

Pfeifer, a moderate Republican, urged the committee to approve a bill that would scrap the 30-year-old law. He said laws enacted in 1996 and 2005 that provide the option of life in prison without parole have made capital punishment unnecessary, especially now that Ohio executes inmates by injection.

"A comfortable easy death is less punishment than life in prison without parole," Pfeifer said.

The chances of the bill passing are slim, given continued support of capital punishment in Ohio by Republicans and Democrats.

The committee chairman, Rep. Lynn Slaby, a Republican and former prosecutor and appeals court judge, said he couldn't say if there would be another hearing.

"I would still support the death penalty as an option as far as penalty is concerned for the worst of the worst," Slaby said after the three-hour hearing.

"Death-penalty opponents appeal to end the system," by  Alan Johnson for the Columbus Dispatch.

Against a backdrop of a 35-year low in U.S. death sentences, Ohio Supreme Court Justice Paul E. Pfeifer, family members of murder victims, and Death Row exonerees yesterday urged state lawmakers to abolish capital punishment.

“The death penalty in Ohio has become what I call a death lottery,” Pfeifer told the House Criminal Justice Committee. “The application is hit or miss depending on where you happen to commit the crime and the attitude of the prosecutor in that county.”

He added: “I believe Ohio is no longer well served by our death-penalty statute. It should be repealed.”

And:

Also testifying were two men who were wrongfully convicted and sentenced to death.

Derrick Jamison was freed after 17 years for the 1984 murder of Cincinnati bartender Gary Mitchell. Dale Johnston was exonerated in 1990 after serving seven years for the dismemberment slayings of his daughter, Annette Cooper, and her friend Todd Schultz.

Jamison tearfully recounted the death of his mother and father while he was in prison. “I am not a statistic. I am a person, a child of God who did not deserve the death penalty,” he said.

Johnston, who now lives in Grove City, said he supported the death penalty before his daughter’s murder and his wrongful incarceration. “I am living proof that the death-penalty system is not applied fairly,” he added “The death penalty must be abolished.”

Chris Stout of Dublin, a former state-prison corrections officer, described his 27-year struggle after his mother was murdered and his father permanently disabled in 1984 by two men who showed up at their door asking to use the phone.

After lengthy appeals and reversals in the courts, the case remains undecided. Stout said he is “100 percent disillusioned by this process. ... We’re the ones who’ve become the walking dead.”

"Ohio Supreme Court Justice Paul Pfeifer urges lawmakers to repeal death penalty in Ohio," by Joe Guillen for the Cleveland Plain Dealer.

Pfeifer raised concerns about the death penalty and whether it was applied evenly based on race and geography during testimony before a House committee in 2003. But he did not call for an end to capital punishment at that time.

After his testimony before the House Criminal Justice Committee, Pfeifer said he doesn't expect much support for his position in the GOP-controlled legislature either. Nevertheless, he laid out his case against the punishment, which he referred to as a "death lottery."

Pfeifer was testifying in support of House Bill 160, which would abolish the death penalty in Ohio and resentence death row inmates to life in prison without the possibility of parole. Democratic Reps. Nickie Antonio of Lakewood and Ted Celeste of Columbus are the bill's primary sponsors.

Pfeifer was a state senator and chairman of the Ohio Senate's Judiciary Committee in 1981 when the current death penalty statute became law. Executions, however, did not resume in Ohio until 1999. Since then, the state has executed 46 inmates. Twelve more are scheduled to die by September 2013.

"Ohio is no longer well-served by our death penalty statute and it should be repealed," Pfeifer told the committee. "And the bill you have before you is a good and important place to start."

Pfeifer said the punishment was meant for the "worst of the worst" -- but that is not always the case nowadays. He also said the punishment is not an effective deterrent.

"Ohio justice urges repeal of death penalty," by Jim Provance for the Toledo Blade.

The justice's beliefs on the application of the law that he helped to write as a state senator are well-known, but this is the first time he has testified before lawmakers on the subject. As a sitting justice, he has continued to vote to uphold death sentences and to set execution dates under the law.

Twelve executions have been scheduled, and Justice Pfeifer said two more are coming up, carrying the process into 2014. "I have a duty under the law to follow that law,'' the Republican justice said outside the hearing room. "At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law.

"Abolishing the death penalty would be a needed improvement,'' he said. "It will happen. Will it be today, tomorrow, or in this session of the General Assembly? More problematic. But the day will come when Ohio no longer has a death penalty.''

Justice Pfeifer is not the first Supreme Court justice to testify before legislators. The late Chief Justice Thomas Moyer testified on judicial reform and mayors' courts and Justice Evelyn Lundberg Stratton testified on sentencing reform.

Current Chief Justice Maureen O'Connor has convened a yearlong task force to examine the fairness of how Ohio's death penalty law is applied, but she has stressed the task force will not second-guess whether Ohio should have the death penalty.

"Ohio holds third highest execution rate," by Tom Beyerlein of the Dayton Daily News.

Pfeifer, a Republican serving his fourth term on the Supreme Court, was among a number of opponents testifying at the bill’s first hearing. The bill is unlikely to pass, said committee Chairman Rep. Lynn Slaby, an Akron area Republican and former Summit County prosecutor.

Ohio has become a key state in the ongoing death penalty debate, partly because of high-profile breakdowns in the state’s execution procedures. In July, U.S. District Judge Gregory Frost stayed one inmate’s lethal injection because of the state’s “haphazard” application of its protocols, leading to other postponements and a six-month gap in executions. The state revised its rules, and Frost accepted them, clearing the way for the Nov. 15 execution of Reginald Brooks of Cuyahoga County.

"Testimony asks state to abolish death penalty, it creates 'more victims'," by Marc Kovac in the Wooster Daily-Record.

Twenty-seven years ago, Mary Jane Stout and her husband, Norman, allowed John David Stumpf and another man into their Guernsey County home to use the telephone.

In response, Stumpf shot and killed Mary Jane and attempted to kill her husband with repeated gunshots to the head.

That was in May 1984. Stumpf has been on Death Row since that year while his case works its way through the requisite state and federal appeals before an execution date is set.

On Wednesday, the couple's son asked state lawmakers to abolish Ohio's death penalty, saying the lengthy legal process has brought nothing but pain and constant reminders of the crime rather than closure.

"We need certainty, we need healing," Chris Stout told the House's criminal justice committee. "We need to not be hauled into court again and again for 27 years and ... traumatized over and over."

He added, "I need this system to stop, period. I need the death penalty to be over and I need people to listen to me when I say, do not do this to me or my family. Don't kill John David Stumpf because of me. We've been through enough, and we want it to end. All this system does is create more victims. ..."

Stout was one of more than a dozen people providing testimony in favor of legislation that would end capital punishment in the state.

Kevin Werner of Ohioans to Stop Executions live-tweeted the hearing, and you can read his coverage at the link.

Earlier coverage of the Ohio legislative hearing begins at the link.

Morton Lawyers Put Prosecution on Defense

That's the title of Chuck Lindell's report in today's Austin American-Stateman, examining the latest developments in the Michael Morton exoneration.  Here's the beginning:

Combining tenacity with legal creativity, lawyers for Michael Morton are doing something that has never been attempted in the nation's 280 previous DNA exoneration cases: They're investigating the prosecutor who sent Morton away for a murder he did not commit.

Armed with court-given power not typically available to defense lawyers, Morton's legal team has pried open investigative files and forced former Williamson County District Attorney Ken Anderson to answer questions under oath and against his will.

The team has also combed court records and interviewed current and former county officials to flesh out allegations that Anderson hid evidence that could have spared Morton from serving almost 25 years in prison for the murder of his wife, Christine.

And now we know where all this effort is headed.

On Dec. 19, Morton's lawyers will provide a written report of their findings to District Judge Sid Harle, who took over Morton's case in August.

They'll discuss the report in open court with Morton likely to be in attendance.

And they'll conclude by asking Harle to take action against Anderson, though what type of action is something Morton's lawyers are keeping to themselves for the moment.

A hint, however, can be found in the transcript of an Oct. 3 hearing that took place in Harle's chambers. Morton lawyer Barry Scheck told Harle that they would return to his court if they found indications of misconduct by Morton's prosecutors.

"I do think that that might trigger other investigations," Scheck told the judge.

Bennett Gershman, a law professor at Pace University in White Plains, N.Y., and the author of several books on prosecutorial ethics, said several states have created innocence commissions to examine wrongful convictions in hopes of avoiding future mistakes.

But Gershman said he has heard of no similar post-exoneration investigations led by defense lawyers that seek to assign blame for a wrongful conviction.

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

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

RJA Update from North Carolina

"Justice act is law; prosecutors must live with it," is the editorial in today's Fayetteville Observer.

You could pretty much see this coming. Two Cumberland County assistant district attorneys who asked to have Superior Court Judge Greg Weeks removed from a case, based on conjecture, were rebuffed.

Their petition made no mention of Weeks' race - he's African American - but, because the case he was to hear was a sentence review under North Carolina's new Racial Justice Act, it was almost as predictable that some would perceive a hidden motive: a fear of what a black judge might say about the fairness of capital cases in Cumberland County.

That, too, was conjecture.

And:

Two things prevent this episode from going into the books as an arcane legal tiff.

First, it's hard to see what, if the gambit had succeeded, would have kept any lawyer on any side of a case from blocking a hearing by seeking a vague subpoena for a judge's testimony.

Second, the prosecutors' challenge to Weeks probably reinforced the suspicion that both offends them and underpins the Racial Justice Act.

The AP reports, "Hearing for death row inmate under NC Racial Justice Act delayed until January."  It's via the Republic.

A hearing for a Fayetteville man trying to get off death row on the grounds of racial bias has been postponed until January.

The hearing for Marcus Robinson had been scheduled to begin Tuesday. At a hearing Thursday in Nashville, Nash County Superior Court Judge Quentin Sumner granted prosecutors' request to delay the next evidentiary hearing to Jan. 30.

Robinson is trying to use the North Carolina Racial Justice Act to prove that racism led to his death sentence in 1994. If he wins his claim, his sentence will be converted to life in prison. Robinson's attorneys say prosecutors discriminated against qualified black jurors at his 1994 trial for killing a white teenager.

Earlier coverage of the North Carolina RJA begins at the link.

African-American Judge Remains on North Carolina RJA Case

Today's News & Observer reports, "udge stays on racial justice case."  It's written by Anne Blythe.

A Superior Court judge in Nash County on Thursday rejected an effort by Cumberland County prosecutors to have an African-American judge removed from one of the first Racial Justice Act cases to move through the courts.

Cumberland County prosecutors had sought to remove Greg Weeks, a Cumberland County judge, from the Racial Justice Act case of Marcus Robinson, a death row inmate for 20 years.

And:

Prosecutors contended they might need to call Weeks, a black judge who oversaw several death penalty cases in Cumberland County, as a witness to their character. On Thursday, Judge Quentin T. Sumner ruled that prosecutors had not shown that Weeks would be a material witness in their case and allowed the Cumberland County judge to continue to preside over the case.

"Ruling allows black judge to hear Racial Justice Act case," is the WRAL-TV report.

A black Superior Court judge will be allowed to hear the first appeal under the state's Racial Justice Act after another judge on Thursday ended prosecutors' attempts to call him as a witness in the case.

Superior Court Judge Greg Weeks was assigned to hear Marcus Robinson's appeal because he is the senior resident judge in Cumberland County.

Prosecutors wanted to use his position against him, saying they might call Weeks to testify because he has presided over several death penalty trials during his 23 years on the bench. As a witness, he wouldn't be allowed to handle the case.

"We do not think that he's not an appropriate judge to be hearing cases," Cumberland County Assistant District Attorney Calvin Colyer said. "Just not this one because he is more important to us ... as a witness than he is as our judge."

Legal experts and Robinson's attorney questioned that move, saying they thought Weeks' race played a role in prosecutors' efforts to stop him from hearing the case.

"We never expected we'd be standing before a court ... trying to prevent the state from disqualifying an African-American judge," said James Ferguson, an attorney for the Durham-based Center for Death Penalty Litigation, which is handling Robinson's appeal.

Weeks didn't attend Thursday's court hearing, but his attorney, Fred Webb, called the subpoena "frivolous."

And:

Superior Court Judge Quentin Sumner ruled that prosecutors failed to show that Weeks is a necessary witness for their case, and he quashed the subpoena.

"Death Penalty Debate: New Study On Race & Jury Selection," is the title of Dave Jordan's related report on WITN-TV.

Tye Hunter is the Executive Director for the Center for Death Penalty Litigation. Hunter says, "Are we going to kill people based on, ya know they're probably right?"

Hunter's center represents 40 people currently on death row. "When people support the death penalty one of their assumptions is there's no question about the person's guilt, that any questions about the person's guilt has been resolved in the accused's favor and that lots of courts and judges have looked at this. But our system, it's not that accurate."

Hunter says the cases of death row inmates having their convictions tossed out and set free are a clear example of a broken system. Some of those exonerations helped lead to the current death penalty moratorium. Since then, three more people have been set free, while others wait.

So where ultimately is the debate over the death penalty headed? More litigation certainly could be filed, but Bennett suggests letting voters decide. "I would love to see this state have a referendum on the death penalty and abide by whatever the public decides."

But Hunter says it's not quite that simple. Several current legal challenges need to be resolved in the courts, such as how North Carolina executes those on death row, execution protocol, and whether lethal injection constitutes cruel and unusual punishment. And the argument over the role race plays is about to be ratcheted up. Hunter says, "We're gonna show the court system some things and they are not going to like it. I don't like it. It's uncomfortable."

At a hearing next week in Fayetteville, Hunter's firm will detail a study on jury selection completed by Michigan State. He says the study reveals on all cases with people still on death row in North Carolina, qualified African Americans were kicked off the jury two to three times the rate of white people all over the state for twenty years.

Earlier coverage of the North Carolina RJA begins at the link.

North Carolina's Racial Justice Act Update

"NC prosecutors seek judge's removal from case," is Martha Waggoner's AP report via the News & Observer.

Prosecutors in the first case being heard under a North Carolina law that allows death row prisoners to challenge their sentences on the grounds of racial bias have filed a motion asking that a black judge be removed from presiding over the case.

Cumberland County prosecutors said in a motion filed Tuesday that they want Superior Court Judge Greg Weeks removed because he may be called as a witness in the case of Marcus Robinson, who's challenging his death sentence under the state's Racial Justice Act. Their motion doesn't mention the judge's ethnicity, but has angered some legal experts who believe race is the behind the move.

"It looks like they're trying to get rid of an African-American judge and have the case heard by someone who likely would not be African-American," said Duke University law professor James Coleman. "They're accused of manipulating the jury on the basis of race. It's ironic that they would do something that looks like they're trying to ... manipulate the judge who would hear the case. It's tone deaf. It's unbelievable to me."

The judge who hears the motion should require the prosecutors to say that they will call Weeks as a witness, not that they might, and identify the testimony they seek from him, Coleman said. Otherwise, attorneys can remove judges simply by saying they might be called as a witness, he said.

"Cumberland prosecutors want Judge Weeks off Racial Justice Act case," by Paul Woolverton for the Fayetteville Observer.

The prosecutors have subpoenaed Weeks to testify at a hearing next week. Weeks is fighting the effort. A hearing on the subpoena is scheduled for Thursday morning in Nash County Superior Court. Weeks asked for a judge outside of Cumberland County to handle the hearing.

Robinson's is one of the first cases to go forward under the Racial Justice Act, which provides condemned inmates a means to get off death row, though not out of prison, if they can prove racial bias led to their death sentences.

In letters dated Sept. 14 and Sept. 21, Assistant District Attorneys Cal Colyer and Rob Thompson told Weeks that he presided over murder cases that were included in a study of race and the death penalty in North Carolina. The statewide study found that in Cumberland County, anyone who murders a white person is more likely to be sentenced to death than someone who kills a non-white person. The study is a key piece of evidence that Robinson's lawyers are using to show a pattern of racial bias in Cumberland County courts.

The prosecutors say several other judges have been removed from trials involving the Racial Justice Act because they presided over cases that were included in the study and could have been called as witnesses.

And:

Lawyers for Robinson oppose the effort to take Weeks off the case. They say other judges were taken off Racial Justice Act cases because they previously had served as prosecutors, not because they were judges in capital cases.

In a news release issued Tuesday, Robinson's lawyers say the effort to subpoena Weeks and push him off the case appears to be racially motivated. Weeks is black.

"In my many years as an attorney, I have never seen a party use such a flimsy pretext to try to get rid of a judge," Duke University law professor James E. Coleman said in the statement. "There is a written record of what the prosecutors did in each of the cases in which their conduct is at issue. Calling the judge as a witness would add nothing to that record. And the idea that they may call the judge as a character witness is absurd; it seems designed only to create a bogus conflict for Judge Weeks."

"Prosecutors seek to remove black judge from Racial Justice Act case," by Bruce Mildwurf fir WRAL-TV.

Robinson's appeal is scheduled for next week, and Superior Court Judge Quentin Sumner will hear arguments in Nash County Thursday morning on whether Weeks should remain on the case.

Irving Joyner, a law professor at North Carolina Central University, who isn't connected to Robinson's case, said he believes the subpoena is unethical.

"That's just improper, and I think it's a violation of the rules of professional responsibility for any lawyer to engage in a scheme like that," Joyner said.

Almost all of the 157 inmates on North Carolina's death row have filed appeals under the 2-year-old Racial Justice Act. Winning an appeal under the law commutes a death sentence to one of life in prison without the possibility of parole.

Earlier coverage of North Carolina's Racial Justice Act begins at the link.  Thanks to Gerda Stein for distributing.

News Coverage of the Hank Skinner Hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Court Hearing Today on Hank Skinner DNA Request

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

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

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

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

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

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

And:

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The David Leonard Wood Case

Today's El Paso Times reports, "Hearing to decide if convicted killer David Leonard Wood will die starts today."  It's by Diana Washington Valdez.

A hearing begins today to determine whether convicted serial killer David Leonard Wood is mentally retarded and should be spared the death penalty.

The presiding judge will submit the findings and recommendations to the Texas Court of Criminal Appeals. The high court stayed Wood's execution two years ago to give his lawyers time to prepare his case.

Court records indicate that Wood's witnesses for the hearing may include a retired El Paso elementary school teacher and a sister who's lived elsewhere in Texas.

A Dallas jury convicted Wood in 1992 in the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. He was sentenced to death.

And:

The U.S. Supreme Court ruled in 2002 in Atkins v. Virginia that executing a mentally retarded person constitutes cruel and unjust punishment in violation of the U.S. Constitution.

The Texas Health and Safety Code states that " 'Mental retardation' means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates

during the developmental period."

It also states that a doctor or state-certified psychologist can determine whether someone is mentally retarded.

The threshold for mental retardation includes an IQ test score of 70, plus or minus a few points, below-average intellectual function, and deficiencies in adaptive behavior.

"Mental Retardation Hearing Begins For Local Serial Killer," is the KFOX-TV report by Jacob Rascon.

A hearing to determine whether local serial killer David Leonard Wood is mentally retarded and should be spared the death penalty for decades-old killings began on Tuesday.

A former teacher of Wood's, a former friend and his elder sister testified that he was a slow learner.

The defense rested and the prosecution will begin calling witnesses on Wednesday.

Wood was convicted in 1992 of capital murder and sentenced to death for killing five teenage girls and a 26-year-old woman. All were murdered and buried in desert areas of the northeast in 1987.

In August, 2009, the day before Wood was scheduled to be executed, the Texas Court of Criminal Appeals granted him a stay of execution to allow his attorneys to prepare to argue that he is mentally retarded.

Earlier this year, an unrelated hearing was held in the Wood case; coverage begins at the link.

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

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

 

"I Thank God This Wasn't a Capital Case ..."

Those were some of the first workds Michael Morton spoke after he was freed in a Williamson County courtroom yesterday afternoon.  Video of his remarks is at the link.

Chuck Lindell writes, "Morton freed from prison after 25 years," for the Austin American-Statesman.

After an emotional group hug with his parents, Michael Morton took his first act as a free man Tuesday afternoon: facing a three-deep throng of cameras and reporters.

Going from serving a life sentence to giving a news conference in two dizzying days, Morton paused to collect his thoughts after having spent almost 25 years in prison for a crime he did not commit, the 1986 murder of his wife, Christine.

"This is new to me, so bear with me," he said, his voice slowly picking up speed. "I thank God this wasn't a capital case. I only had life."

Instead of being executed and forgotten, Morton was able to prove his innocence with a team of dedicated lawyers and a series of DNA tests that implicated another man — a felon with convictions or charges in four states — in the death of his wife.

Tuesday's hearing to release Morton from prison was a formality agreed to by Williamson County District Attorney John Bradley while Morton's case heads to the Texas Court of Criminal Appeals, which must approve all sentences thrown out on the grounds of actual innocence.

Until that ruling, Morton is free on a signature bond but technically still serving his murder sentence.

Brandi Grissom posts, "DNA Evidence Leads to Morton's Release After 25 Years," at the Texas Tribune.

For more than six years Morton's attorneys sought to have the DNA testing done that eventually resulted in his release. Williamson County District Attorney John Bradley, the former chairman of the Texas Forensic Science Commission, opposed the testing and publicly derided attempts to link the murder to "a mystery killer."

Through all the years of pressing courts and prosecutors to review the old evidence, Patricia Morton said she remained hopeful. "We never gave up hope," she said.

The Texas Court of Criminal Appeals must approve Morton's writ before his conviction is formally overturned. And before he is eligible for compensation, Morton must be acquitted in court or pardoned by the governor, or the prosecutor must dismiss charges against him. Under Texas laws, Morton could be eligible for a lump sum of up to $2 million and an additional monthly annuity worth another $2 million.

Innocence Project co-founder Barry Scheck said that the investigation into the Morton case will not end with his release from prison. Morton's lawyers allege that Williamson County prosecutors violated his due process rights in several ways and withheld evidence that could have prevented his conviction in the first place.

The original prosecutor, Ken Anderson, is now a Williamson County district judge.

Morton's lawyers claim in court documents that the district attorney's office withheld a transcript of a conversation between Rita Kirkpatrick, Christine Morton's mother, and an sheriff's investigator in which she told the officer that Morton's 3-year-old son saw a "monster" who was not his father attack and kill his mother.

The defense attorneys also allege prosecutors withheld information about Christine Morton's credit card being used in San Antonio two days after she was killed and about a check made out to her that was cashed with her forged signature nine days after her death.

"We are not going to rest until we do everything we can to find out what happened in this case," Scheck said.

"Wrongly imprisoned man goes free after 25 years," is the AP report, via CBS News.

The case in Williamson County, north of Austin, will likely raise more questions about the district attorney, John Bradley, a Gov. Rick Perry appointee whose tenure on the Texas Forensic Science Commission was controversial. Bradley criticized the commission's investigation of the case of Cameron Todd Willingham, who was executed in 2004 after being convicted of arson in the deaths of his three children. Some experts have since concluded the forensic science in the case was faulty.

Bradley did not try the original case against Morton. But the New York-based Innocence Project, which specializes in using DNA testing to overturn wrongful convictions, has accused him of suppressing evidence that would have helped clear Morton sooner. That evidence — including a transcript of a police interview indicating that Morton's son said the attacker was not his father — was ultimately obtained by the Innocence Project through a request under the Texas Public Information Act.

Austin's NBC affilliate KXAN-TV has extensive coverage beginning with "Michael Morton is a free man," reported by Pamela Cosel, Shannon Wolfson, and Nanci Wilson.

Morton walked into the courtroom at 3:14 p.m., dressed in a white long-sleeved, open-collar striped shirt, along with attorneys Barry Sheck and Nina Morrison. They joined attorney John Raley at the defense table. Morton, his formerly dark hair now a silvery gray, smiled broadly as he waited for the hearing to start. He read a few documents that his lawyers put before him, the stillness of the room heavy with corraled excitement, as water held behind a dam.

Morton's mother cried quietly as her son entered the room, and the elderly couple waved at him.

At 3:28 p.m., all of the attorneys went with Judge Sid Harle back to the judge's chambers. At 3:40 p.m., the proceedings started with Raley explaining the current status of the case. Sheck and Morrison added information before the judge.

Harle was swift in his actions -- and offered an apology for what Morton had been through, wrongly imprisoned for 25 years -- before releasing him to his friends and family.

"I have recommended to the Court of Appeals on count one, to accept my finding," he said. He offered his apologies and said, "You have my sympathy. You have my apologies ... We don't have the greatest system ... it shows ultimately that justice will be served."

KXAN also has "Anthony Graves reflects on Morton case," by Dustin Blanchard.  There is video at the link.

"I lost 18 years of my life. If they had just done any kind of investigation I would’ve never spent a night in jail, but that’s not the case," said Graves.

Graves said his case and the Morton case are proof of serious problems in the Justice System.

"If you don’t have DNA in your case, it’s like no one wants to hear it," said Graves. "[Morton's] case is just another example of how bad our system is and you think that’s 25 years ago and nothing’s changed in our system."

Graves spent the last year travelling the world talking about his experiences. He now helps counsel prisoners still behind bars. He said his time behind bars gave him a sense of purpose.

"I'm out here living my life trying to save life. I'm trying to educate people about this injustice known as the death penalty and our system," he said.

Graves works for the Texas Defender Service, where he advocates for reforms to the death penalty. Among them: stiff criminal penalties for prosecutorial misconduct, and institution of a review board for death penalty sentences.

"Anybody in whatever county who wants to seek the death penalty has to take that case in front of that panel ," he said. "That is the kind of safeguard that needs to be there. Because when you allow one man to make that decision you don’t know why he's making that decision."

Graves was exonerated and freed in October 2010.

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

Michael Morton to Be Freed Today

"Morton expected to be freed today after 25 years," is the title of Chuck Lindell's Austin American-Statesman report.

After almost 25 years in prison, Michael Morton will be freed as early as today after Williamson County prosecutors agreed that new DNA evidence points to another man as the killer of his wife in 1986.

Recent DNA tests also linked the man, a felon identified as John Doe in court because he has not yet been arrested, to the unsolved Austin murder of Debra Jan Baker in 1988.

Like Christine Morton, Baker was killed in bed by multiple blows to the head from a blunt object.

John Doe was not in prison during either murder, and he lived only a few blocks from Baker when she was killed, Morton lawyer Nina Morrison said during a Monday hearing into Morton's innocence claim.

Williamson County District Attorney John Bradley said finding a DNA link between two similar murders, one committed while Morton was in prison, was "lightning-bolt type of information" that prompted him to agree to Morton's release.

Investigations will continue into both murders.

A separate investigation also will continue into allegations that then-prosecutor Ken Anderson and sheriff's investigators improperly withheld evidence that could have saved Morton from a guilty verdict.

Morton's lawyers renewed those allegations in court filings Monday, adding that it appears investigators were so focused on Morton that they neglected substantial leads, including reports that Christine Morton's credit card and a forged check were used to make purchases days after her murder. Her purse was reported stolen in the crime.

Bradley initiated the move to free Morton with a Friday phone call to Barry Scheck, co-founder of the Innocence Project, resulting in long hours spent drafting "findings of fact" to be ready for Monday's already scheduled hearing.

Morton learned about his impending freedom Saturday.

And:

Court filings from the Innocence Project accused Anderson and sheriff's investigators of hiding evidence that could have raised doubts about Morton's guilt. The evidence, which came to light since 2008, included:

• A taped police conversation with Christine Morton's mother, who said the Mortons' 3-year-old son described the attack, identified key details about the murder scene and said his father was not home at the time.

• A handwritten telephone message to lead investigator Sgt. Don Wood, dated two days after the murder, reporting that Christine Morton's missing Visa card had apparently been recovered at a San Antonio store. There is no record that the lead was followed up in the sheriff's or district attorney's case files, which have been opened to Morton's lawyers, the court filing says.

• Two messages telling Wood a check made out to Christine Morton was cashed nine days after her death, and the signature on the back appeared to be a forgery of Christine's name. There is no sign the lead was investigated, the filing said.

Had the clues been disclosed, it is likely that Morton would not have been convicted, and it's possible the Baker murder could have been averted, the court filing said.

"We are going to continue the investigation of those matters, because we regard them as extraordinarily serious," Scheck said after the hearing. "Stay tuned and keep your eye on the ball. This story is by no means over."

"DA Agrees DNA Evidence Doesn't Support Morton's Guilt," by Brandi Grissom for the Texas Tribune.

Michael Morton, who served 25 years in prison for the murder of his wife Christine, will be released after his attorneys reached an agreement with prosecutors, who agreed today in a legal filing that DNA evidence revealed Morton almost certainly was not the killer.

"Because new DNA evidence, previously unavailable at trial or at the time of Applicant’s prior writ applications through no fault of either party, indicates that someone other than Applicant committed the offense in this case, Applicant’s conviction should be set aside under the authority set forth above," Morton's attorneys and Williamson County prosecutors stated in a jointly agreed to "findings of fact and conclusions of law."

Williamson County District Attorney John Bradley said that the new developments — which he said were a "lightning bolt type" of discovery — warranted a reversal of Morton's murder conviction.

"It is my job, as district attorney, to make sure that justice is done," Bradley said after the court action today.

And:

"It's been a long, hard fight," said John Raley, a lawyer with the Houston firm Raley and Bowick, who worked pro bono for six years on the Morton case, along with the New York-based Innocence Project.

The Morton case could have serious ramifications for John Bradley, the former head of the Texas Forensic Science Commission who was critical of efforts to examine questions about the arson science used to convict Cameron Todd Willingham in the 1991 deaths of his three daughters. (Willingham was executed in 2004.)

For more than six years, Bradley resisted turning over the bandana and other evidence for new DNA testing until a Texas appellate court ordered him to do so last year.

On Monday, Bradley said he could not discuss the reasons he opposed DNA testing in the Morton case for more than six years. Doing so, he said, would jeopardize the ongoing investigation of the murders of Christine Morton and Debra Jan Baker.

“As a lawyer, I had what I believe are good-faith reasons for raising concerns about that," he said.

Raley, Morton's defense attorney, said the case proves that prosecutors should never fight against DNA testing. "It can only reveal the truth,” Raley said. “And those that oppose it are being inherently illogical.”

According to the Innocence Project, there have been 43 DNA exonerations in Texas, not including Morton's case, which still must be reviewed and approved by the Texas Court of Criminal Appeals.

Morton's attorneys also say Bradley sat on evidence that should have been turned over to the defense and that could have helped exonerate him. In addition to making claims of innocence on behalf of Morton in legal documents filed today, his lawyers also alleged that Williamson County prosecutors violated his due process rights in several ways.

The AP filing is, "DNA helps free Texas man convicted in wife's death," by Will Weissert.  It's via the Dallas Morning News.

Texas prosecutors agreed Monday to release an Austin man who spent nearly 25 years in prison for beating his wife to death — but always maintained his innocence — after DNA tests showed another man was responsible.

District Judge Sid Harle recommended Michael Morton go free to the state Court of Criminal Appeals, which will make the final determination on overturning his conviction. Morton is set for release Tuesday afternoon or Wednesday morning, following a final hearing before Harle.

The case will likely raise more questions about John Bradley, district attorney for Williamson County north of Austin and once a Gov. Rick Perry appointee to head the Texas Forensic Science Commission. Bradley criticized the commission's investigation of the case of Cameron Todd Willingham, who was executed in 2004 after being convicted of arson in the deaths of his three children. Experts have since concluded that case's forensic science was faulty.

The Innocence Project, a New York-based organization that specializes in using DNA testing to overturn wrongful convictions, has accused Bradley of suppressing evidence that would have helped clear Morton, who was convicted on circumstantial evidence and sentenced to life in prison for his wife's August 1986 beating death.

Earlier coverag of Michael Morton's case begins at the link.

Let's Let the Facts Lead the Way

That's the title of an Austin American-Statesman editorial regarding the Michael Morton case.  It appeared in the Sunday edition.

The main goal of any examination into the case of Christine and Michael Morton must be the search for truth and justice. District Judge Billy Ray Stubblefield of Williamson County emphasized that in his directive to prosecutors and the Innocence Project investigating new evidence that might exonerate Michael Morton, who has been in prison for nearly 25 years for killing his wife, Christine.

"We must all have the courage to learn the facts and let them lead the way," Stubblefield said in August, when new details emerged about DNA evidence. He is right. Our system of justice is not mistake-proof. But its measure should be taken not just by how many times the right person is convicted and imprisoned, but how well the justice system responds when it errs. This case is testing that core principle of justice.

There are several revelations that raise troubling questions about the case, specifically whether Michael Morton committed the murder and whether prosecutors who handled the case hid exculpatory evidence to help win a conviction. American-Statesman writer Chuck Lindell provides another compelling report on the case in today's editions.

And:

Another issue that must be examined is whether prosecutors who originally handled the case were involved in misconduct, as the Innocence Project claims. Before recusing himself, Stubblefield, said that issue should be examined. We agree, if for no other reason than to unearth deficiencies or mistakes that can prevent wrongful convictions in the future. District Judge Sid Harle of San Antonio has replaced Stubblefield.

In this case, the Innocence Project alleges that prosecutors hid key evidence that would have helped Morton prove his innocence. At issue is a transcript of a phone conversation between a sheriff's investigator and Christine Morton's mother, Rita Kirkpatrick. Kirkpatrick said Morton's 3-year-old son indicated that he had witnessed the murder and that the killer, whom he described as a "monster," was not his father.

This is a case that demands answers, transparency and full cooperation by all parties. Morton was by most accounts an average working guy living an average life. He was not a thug, not homeless, not poor. If the justice system failed him, it can fail anyone. But its redemption can be found in its ability to correct its mistakes.

Lindell's latest article, referrenced in the editorial, is, "Circumstantial case convicting Morton of murder now under attack."  Here's the beginning :

Legs buckling as his guilty verdict was read aloud, Michael Morton dropped into a chair, laid his head on the defense table and sobbed.

"I didn't do this," Morton told the court 24 years ago. "That's all I can say. I did not do this."

New evidence raises the distinct possibility that Morton was telling the truth, that another man brutally murdered his wife in their Williamson County home and moved on to commit additional crimes — possibly including a 1988 murder in Austin — while Morton spent the next quarter-century in prison.

The investigation of that new evidence is proceeding.

But back in 1987, when Morton was convicted of murder in a case based on circumstantial evidence, everybody who mattered — from investigators to jurors — was absolutely certain that he killed his wife, Christine, and callously left their 3-year-old son, Eric, alone at the murder scene.

According to an Austin American-Statesman review of trial transcripts and exhibits entered into evidence:

• The sheriff zeroed in on Morton almost immediately and was ready to make an arrest within a week of the murder.

• The medical examiner, using a questionable technique, declared a time of death that destroyed Morton's alibi.

• The prosecutor presented a blistering condemnation of Morton as cruel, manipulative and sexually abnormal.

In the end, 12 jurors needed less than two hours to find Morton guilty of murder, then another 30 minutes to dispense the maximum sentence: life in prison.

Securing the guilty verdict was no slam dunk.

No evidence directly tied Morton to the crime. He had no history of violence. And the murder weapon, a blunt object made of wood, was never found.

Even so, prosecutor Ken Anderson convinced jurors that Morton killed his wife for the basest of reasons, then staged a fake burglary in an inept attempt to deflect blame.

"Life in prison is a lot better than he deserves," Anderson, now a state district judge, said at the time.

Earlier coverage of the Michael Morton case begins at the link.  Another hearing in the case is scheduled for today.

The Morton Case

Today's Austin American-Statesman reports, "Could 1988 cold case in Austin help exonerate man imprisoned nearly 25 years?"  It's by Chuck Lindell.

Austin police are investigating potential links between an unsolved 1988 murder and the strikingly similar killing of Christine Morton two years earlier in Williamson County, raising the possibility that a serial killer is to blame and bolstering claims that Morton's husband has been wrongly imprisoned for almost 25 years.

Like Morton, Debra Jan Baker of Austin was beaten to death with a blunt object while lying in her bed. The Baker and Morton homes were about 12 miles apart.

What's more, lawyers for Michael Morton — serving a life term for his wife's murder — have tried without success to get court-ordered DNA testing to determine if there are links to another unsolved but similar crime, the 1980 bludgeoning death of Mildred McKinney. McKinney also was attacked in bed in her home, about a half-mile from the Morton house in southwestern Williamson County.

Morton has consistently proclaimed his innocence, blaming his wife's murder on an unknown intruder, and attempts to link that crime to the McKinney case have been central to his lawyers' efforts to overturn his sentence.

The link to the Baker case — established in interviews with Baker family members and from information revealed in a Monday hearing in the Morton case — is new.

About two weeks ago, cold case investigators from the Austin Police Department began re-interviewing Baker's relatives based on a tip from Morton's lawyers with the Innocence Project of New York.

The tip included the name and DNA profile of a man whose DNA was discovered on a recently tested piece of evidence from the Morton case: a bandanna that also contained Christine Morton's blood and one of her hairs.

The payoff for the Innocence Project came on Monday, when a routine hearing on Michael Morton's exoneration efforts took a dramatic turn after the judge handed out a two-page document provided by the Travis County district attorney's office.

The document, reviewed in private and discussed in a closed hearing to avoid compromising the cold case investigation, is now known to have included recent developments in the Baker case.

The next hearing in the case is scheduled for Monday, October 3.

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

More Details on the Morton Case Review

Brandi Grissom posts, "DNA Test May Tie Morton Case to 1988 Killing," at the Texas Tribune.

Travis County authorities are investigating an unsolved 1988 Austin murder that they suspect is related to the 1986 murder of Christine Morton, for which her husband, Michael Morton, has been in prison for 25 years.

The developments could bolster efforts to exonerate Morton — who has steadfastly maintained his innocence — and help solve the mysterious killing of Debra Jan Baker, which has haunted her daughter, Caitlin Baker, nearly her entire life. She was 3 years old when her mother was bludgeoned to death in her bed.

“I’m happier for Michael Morton at this point,” Caitlin Baker told The Texas Tribune. “If it helps him, that would be even better.”

It could also have potentially serious ramifications for Williamson County District Attorney John Bradley, the former head of the Texas Forensic Science Commission. Appointed to the panel by Gov. Rick Perry, Bradley was critical of efforts to examine questions about the arson science used to convict Cameron Todd Willingham in the 1991 deaths of his three daughters. Willingham was executed in 2004.

And:

Neither Morton’s attorneys nor the district attorneys in Travis and Williamson counties would confirm a connection between the two cases or discuss the Baker investigation. But Caitlin Baker said a detective in the Austin Police Department cold case unit told her Tuesday that authorities are investigating a potential connection between the two crimes.

Debra Jan Baker's body was discovered on Jan. 13, 1988, in her north Austin home, about 12 miles from where Morton's body was found about a year and a half earlier. Initially, police focused on Baker’s estranged husband, Phillip Baker. But Phillip, who at the time worked at the local jail, said in an interview that the police eliminated him as a suspect.

Caitlin Baker, now 27, has pursued her mother's killer for years, begging Austin police and anyone else who might know what happened to share with her information about the murder. In 2005, she sent a letter to the Austin Chronicle, pleading for help from the public. “There must be someone with information regarding her death. We have not given up hope,” she wrote.

Over the years, the police were in occasional contact — Baker said she met with cold case detectives about four years ago and police took DNA samples from other relatives — but her mother's murder has remained unsolved.

Then, about three weeks ago, she said, the police returned, asking again about her mother’s death. Phillip Baker said police came to his home and showed him photos of two men, neither of whom he said he recognized. Caitlin Baker said police also spoke with her aunts and an uncle in Sugar Land. When Caitlin Baker asked Tuesday if the renewed interest in her mother’s case was related to the Morton murder and recently discovered DNA, an officer told her it was.

“They are definitely looking into that, but they couldn’t share any details,” she said. “I’m happy that there could be something.”

If DNA evidence from Debra Baker’s murderer is linked to the sample taken from the Morton bandana — as was implied at Monday’s court hearing — it could have momentous implications for Michael Morton and for Williamson County DA Bradley.

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

An Update on the Michael Morton Case

"Travis County May Hold Key to Solving Morton Murder," is the title of Brandi Grissom's Texas Tribune report.

Travis County prosecutors on Monday provided “powerful evidence” to a Williamson County district court that could be crucial in exonerating Michael Morton of the 1986 murder of his wife.

“I would assume that this information would take away any concerns whatsoever” about Morton’s innocence, said his attorney, John Raley, of Houston, who has been working on the case since 2003. In 1987, Morton was convicted of killing his wife, Christine Morton, in their Williamson County home and sentenced to life in prison.

At a hearing on Monday, Bexar County District Judge Sid Harle presented Morton’s lawyers and lawyers from District Attorney John Bradley’s office with new information from a case pending in Travis County. Because the case is pending, the judge and attorneys would not reveal the nature of the information or the names of individuals involved. But the information seemed to reinforce evidence Morton’s lawyers say shows that he is innocent.

Travis County assistant district attorney Buddy Meyer said his office would not comment on the information.

And:

“This is very powerful evidence your honor. Wow,” said Raley, adding that his client should be immediately released from prison based on the discovery. He said he expected the Williamson County district attorney's office to assist in preparing court filings indicating that Morton is innocent of murder.

But lawyers for Bradley's office said they wanted a hearing to further develop the information. “I think there are still issues that need to be resolved,” said Lindsay Roberts, first assistant district attorney.

At Morton's original trial, prosecutors told jurors that he bludgeoned his wife to death because he was upset that she had fallen asleep instead of having sex with him the previous night after celebrating hisbirthday.

Last month, Morton’s lawyers with the New York-based Innocence Project announced that they had discovered DNA on a bandana found near the crime scene that excluded him as his wife’s killer. The DNA, they said, belongs to a felon who is not in custody.

"Mystery filing could bolster prisoner's innocence," is the Austin American-Statesman coverage by Chuck Lindell.

Travis County prosecutors dropped a bombshell on the Michael Morton murder case on Monday: a sealed, two-page file detailing a pending investigation that apparently bolsters Morton's claim that he was wrongly convicted almost 25 years ago.

District Judge Sid Harle gave the sealed file — apparently detailing an investigation of a cold case murder from the 1980s — to prosecutors and defense lawyers during a Monday afternoon hearing on the Morton case, then he adjourned to give both sides time to read it.

When the hearing resumed, defense lawyer John Raley said the new information suggests that Morton should be immediately released from prison, where he is serving a life term for the 1986 murder of his wife, Christine Morton.

And:

Information about the Travis County cold case overshadowed the original intent of Monday's hearing: Harle's order to allow defense lawyers to review the Morton case files from the sheriff's office and district attorney.

Raley said the files revealed information that suggests prosecutors hid a key piece of evidence that could have raised questions about Morton's guilt — a transcript of a police interview with Christine Morton's mother. That conversation, taped by police 11 days after the murder, revealed that the Mortons' 3-year-old son said that he saw a "monster" hurting his mother and that his father was not home at the time of the attack.

Defense lawyers didn't learn of the transcript until 2008, when it was provided by the sheriff's office under Texas open records laws.

On Monday, Raley said he found a summary of the transcript in the district attorney's files. The information gives Morton a second avenue on appeal — a violation of his constitutional right to view evidence that could cast doubt on his guilt — if his innocence claim bogs down, Raley said.

Harle scheduled a follow-up hearing for Oct. 3.

Earlier coverage of Matthew Morton's case begins at the link.

Coverage of Michael Morton DNA Hearing in Williamson County

Chuck Lindell writes, "Bradley remains on case as details emerge about suspect ID'd with DNA," for the Austin American-Statesman.

A judge Tuesday denied a defense request to remove Williamson County District Attorney John Bradley from the Michael Morton case in the wake of new DNA evidence that has raised questions about Morton's 1987 conviction for his wife's murder.

The hourlong hearing was more notable for intriguing details that emerged about the DNA evidence, which was found on a bandanna containing the blood and hair of the murder victim, Christine Morton.

Mixed with skin cells belonging to Christine Morton, who was beaten to death in her bed in 1986, was DNA from a man who has a state and federal felony record for offenses in three states that include burglary of a residence, "extensive" drug use and assault with intent to kill, defense lawyer John Raley told the court.

"This man is not in custody at this time," Raley said. "He is out, and we have a very good idea of where he is."

Prosecutor Kristen Jernigan objected, asking that no additional details be given in open court because it could compromise the investigation and could warn the suspect, identified in court documents only as a onetime California inmate.

District Judge Billy Ray Stubblefield called the lawyers to his bench, where they conferred for almost three minutes.

"This is an extraordinary case," the judge said later. "The evidence is extraordinary. What you told me privately here at the bench is even more extraordinary."

Michael Morton has been in prison for almost 25 years while serving a life sentence for murder.

And:

Stubblefield said he was confident that the district attorney's office and investigators would conduct a proper investigation. But the judge warned that he wanted no foot dragging, and he set a Sept. 27 court date to receive a progress report.

"What I do not want to happen is for there to be a protracted, long period of investigation," Stubblefield said, adding that he plans to be "very tough" on both sides when it comes to sharing evidence that could point to Morton's guilt or innocence.

"We must all have the courage to learn the facts and let them lead the way," he said.

In a related ruling, Stubblefield said he will investigate the Innocence Project's claims that prosecutors improperly withheld evidence during Morton's 1987 trial, particularly a transcript of a phone conversation between a sheriff's investigator and Christine Morton's mother. In the conversation, Rita Kirkpatrick said the Mortons' 3-year-old son indicated that he witnessed the murder and that the killer, whom he described as a "monster," was not his father.

Stubblefield said he would view the investigative file, which has been sealed and stored at the 3rd Court of Appeals, to see if the transcript was included.

The judge also extended a gag order barring lawyers and investigators from commenting on the case.

"Despite Questions of Bias, John Bradley Will Stay On Innocence Appeal," by Morgan Smith for the Texas Tribune.

A state judge Tuesday declined to remove firebrand Williamson County District Attorney John Bradley from investigating the case of Michael Morton, whose 1987 murder conviction has been called into question after new DNA evidence suggests someone else killed his wife. 

District court judge Billy Ray Stubblefield, who has been on the bench since 1993, said he was not prepared to take “the extraordinary act” of recusing Bradley. He said he had a “high degree of confidence” in the two assistant district attorneys in Bradley’s office handling the appeal and that he would “take this case as seriously as any case that has come before me in 19 years on this court.” Morton's lawyers, which include attorneys with the Innocence Project, a New York-based nonprofit, had demanded that Bradley be removed from the case.

And:

At the center of Morton's appeal are the June DNA results obtained from a bloody bandana that had been found at a construction site near the couple’s home shortly after the murder. For six years, Bradley fought advanced DNA testing of the bandana and other evidence, saying Morton's attorneys were searching for a “mystery man” and “grasping at straws.” The Third Court of Appeals ultimately ruled in Morton's favor and ordered the testing last year. The results revealed that comingled with Christine Morton’s hair, sweat, and blood on the bandana was the DNA of a man who was not Michael Morton.

Raley said his own “informal” investigations of the new suspect, who is still at large, revealed he had a history of drug abuse and assault.

In addition to the DNA evidence, Raley said Bradley fought to keep under wraps a sheriff's department interview with Morton's mother-in-law conducted days after the 1986 murder in which she said the couple's young son had witnessed the crime. She said her grandson, three years old at the time, told her that a man who was "not Daddy" killed his mother. Raley also questioned whether the trial judge at the time had ever seen the document.

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

Hearing in the Morton DNA Request

"Lawyers ask judge to appoint special prosecutor," is the AP report via the Houston Chronicle.

A hearing is scheduled Tuesday in Georgetown, north of Austin.

The New York-based Innocence Project represents Michael Morton. The attorneys say the new DNA testing of a bloody bandana points to someone else as the murderer. They want a judge to remove District Attorney John Bradley from the case and appoint a special prosecutor.

Morton was sentenced to life in prison for the 1986 beating death of his wife Christine.

Bradley has been district attorney since 2001. He had objected to Morton's request for new DNA tests.

Earlier coverage of Michael Morton's fight for post-conviction DNA testing begins at the link.

West Memphis Three Freed

The updated AP report is, "Judge frees 3 men convicted in Arkansas scouts’ deaths after 18 years in prison."

Three men convicted of killing three 8-year-old Cub Scouts and dumping their bodies in an Arkansas ditch were freed from nearly two decades in prison Friday, after they agreed to plead guilty to secure the release of one of them from death row.

Under the plea bargain, Damien Echols, Jason Baldwin and Jessie Misskelley were being freed immediately. The boys’ families were notified about the pact ahead of time but were not asked to approve it.

The defendants, known by their supporters as the West Memphis 3, agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors have enough evidence against them.

“I am innocent of these charges but I am entering an Alford guilty plea,” Echols told the judge. Baldwin and Miskelley also reasserted their innocence.

“Although I am innocent, this plea is in my best interest,” Misskelley said.

The three were credited with time served, and Echols is being freed from Arkansas’ death row. They were placed on 10 years’ probation and if they re-offend they could be sent back to prison for 21 years, Prosecutor Scott Ellington said.

“I believe that it would be practically impossible after 18 years to put on a proper trial in this case,” Ellington said.

“I believe this case is closed and there are no other individuals involved,” he said.

Baldwin and Echols each pleaded guilty to three counts of first-degree murder. Misskelley pleaded guilty to one count of first-degree murder and two counts of second-degree murder. The Alford plea allows the men to maintain their claims of innocence.

After the hearings, Baldwin told reporters that he had been reluctant to plead guilty to crimes he maintains he didn’t commit, but that they agreed to the deal because they had to get Echols off death row.

“That’s not justice, however you look at it,” he said.

Echols thanked Baldwin and called his release “overwhelming.”

"West Memphis Three set free after pleading guilty to 1993 murders," is the Memphis Commercial Appeal post written by Clay Bailey and Marc Perrusquia.

The pleas were based on a seldom-used North Carolina case allowing the defendants to plead guilty while maintaining their innocence. All three expressed their innocence in the case.

Judge Laser said he had never heard of the law being used in his 14 years on the judicial bench.

“I realize this is confusing,” the judge said, later adding: “The court does believe in this particular case that it is in the best interest of everyone.”

He described the case as “a tragedy on all sides.”

Earlier coverage of the case begins at the link

Judge Rejects DNA Testing in David Wood Case

Today's El Paso Times reports, "Judge rules against serial killer David Leonard Wood's DNA petition."  It's by Diana Washington Valdez.

A visiting judge for the 171st Judicial District Court has ruled against convicted serial killer David Leonard Wood's petition involving DNA test results.

Wood, who received a stay of execution two years ago, had expanded his death penalty appeal to include a petition for a new finding of his 1992 conviction.

He requested, and was granted, new DNA tests of items from 1987 victims of the notorious desert deaths in Northeast El Paso.

"The court finds that the results of the DNA analysis do not establish that, had the results been available during the trial of offense, it is reasonably probable that (Wood) would not have been convicted," according to Judge Bert Richardson's ruling dated Aug. 17.

According to court records, prosecutors did not rely on DNA evidence to try Wood.

And:

A separate hearing has not been set to determine whether Wood meets the legal threshold of mental retardation.

Earlier coverage of this month's hearing in El Paso begins at the link.

Breaking News in West Memphis Three Case

"'West Memphis Three' could go free after hearing today," is the AP post, via the Washington Post.

Three men convicted of killing three 8-year-old Cub Scouts in Arkansas were set for a hearing Friday that could end with their release from custody after nearly two decades in prison.

The father of one of the victims and a person familiar with the case told The Associated Press that Damien Echols, Jason Baldwin and Jessie Misskelley would be offered a chance to change their pleas in the 1993 killings at West Memphis. Echols was sentenced to die for the brutal killings and Baldwin and Misskelley were sentenced to life terms. Misskelley initially confessed, but defense attorneys claim police took advantage of his low IQ.

A person who spoke on condition of anonymity because of a gag order in the case told the AP the tentative deal includes a legal maneuver that would let the men maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.

“It’s a highly technical way to put an end to judicial proceedings in the case,” the person told the AP.

The defendants, whose case and cause were taken up by celebrities following a pair of documentaries, are known collectively as the “West Memphis 3.” They were convicted in 1994 of killing Steve Branch, Christopher Byers and Michael Moore and leaving their naked bodies in a West Memphis ditch.

The Arkansas Supreme Court last year ordered new hearings for the three after defense attorneys said new DNA evidence could exonerate them. A courtroom date had been set for December, but Craighead County Circuit Judge David Laser scheduled a hearing for Friday without releasing details.

Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said Thursday that prosecutors told him that they planned to reach a no-contest plea.

“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”

Prosecuting Attorney Scott Ellington declined to comment, as did defense attorneys and a spokesman for the state’s attorney general. They all cited a gag order issued by the judge overseeing the case.

The Memphis Commercial Appeal reports, "Crowd begins to gather in Jonesboro awaiting hearing on West Memphis 3."  It's written by Clay Bailey.

With the fate of the West Memphis Three before a judge today, spectators began gathering outside the Craighead County Courthouse this morning expecting a historic announcement in the case.

Citizens, supporters of the defendants and media members waited to see what a judge will determine regarding the three men convicted of the 1993 murders of three boys, and whether they would be released today.

On the third floor outside the courtroom about 60 people were lined up two hours before the public session, hoping for a seat in the courtroom where the proceedings will take place.

In a surprise announcement Thursday, Craighead County Circuit Court Judge David Laser called all of the parties to the County Courthouse for a 10 a.m. hearing in chambers today. A public hearing will be held after the chambers conference.

By many accounts, including statements by relatives of some of the three young victims, the court appearance could result in the release of the Damien Echols, Jessie Misskelley and Jason Baldwin – dubbed the West Memphis Three -- jailed since their 1994 convictions in the deaths of the three young boys.

And:

For years, the trio has proclaimed their innocence, saying the lynchpin in the prosecution’s case – a confession from Misskelley, who reportedly is mentally deficient – was coerced by West Memphis police after hours of interrogation. Misskelley later recanted the story.

Since the conviction, a number of other questions about the case have arisen, and the three were scheduled – by order of the Arkansas state Supreme Court – to have a new hearing in December based on DNA evidence.

But the situation accelerated Thursday when Judge Laser surprisingly announced there would be a hastily called court appearance for Echols, Baldwin and Misskelley today.

The sudden change in timetable started speculation about what will happen next with the West Memphis Three.

That could be answered this morning in the Craighead County Courtroom. It appears today that for the first time in 18 years, the West Memphis Three are on the verge of freedom. Supporters of Echols, Baldwin and Misskelley said on Internet sites that all three were moved from prison Thursday and brought their personal belongings with them, a move the supporters classified as unusual.

The Commercial Appeal has an archive of West Memphis Three coverage.

Earlier coverage of the West Memphis Three case at StandDown begins at the link.  The news links above are updating automatically.  I'll update later today as developments warrent.

An Update on the David Wood Hearing in El Paso

"Judge to rule today on David Leonard Wood's DNA tests," is the title of Adriana M. Chávez' report in today's El Paso Times.

A visiting judge is expected to rule today on whether DNA test results would have made a difference in the conviction of David Leonard Wood had they been presented during his 1992 jury trial.

A Dallas jury convicted Wood in the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. The same jury sentenced Wood to death, but his execution was postponed two years ago after his defense attorneys claimed he was mentally disabled.

During a hearing that started Tuesday and ended Wednesday, Wood's attorneys claimed DNA evidence found on a yellow sundress belonging to victim Dawn Smith matched her and the DNA of an unknown man. Two other tests on evidence belonging to victims Rosa Casio and Angelica Frausto were deemed inconclusive.

Visiting Judge Bert Richardson of San Antonio said he would make his ruling today and notify the Austin-based attorneys on both sides by next week.

Also on Wednesday, Richardson tentatively scheduled a hearing in October to determine whether Wood is mentally disabled. That hearing is expected to take less than a week and may include testimony from those familiar with Wood.

At the October hearing, attorneys may also discuss a potential request from defense attorney Gregory Wiercioch to test additional evidence, including up to 100 items, for DNA.

However, Assistant Attorney General Georgette Oden argued in court that many of those items may now be unable to be tested because of deterioration over time.

Earlier coverage of the state habeas hearing in David Wood's case begins at the link.

New Questions Raised in El Paso Case

This morning's El Paso Times reports, "Convicted serial killer David Leonard Wood attends hearing on expanded appeal."  It's written by Adriana M. Chávez.

Attorneys for convicted serial killer David Leonard Wood argued Tuesday that Wood is innocent in the deaths of six girls and women because recently conducted DNA tests were inconclusive or did not match his DNA.

A Dallas jury in 1992 convicted Wood of the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. All of them died in 1987 after Wood was paroled from prison for the second time on sex-assault convictions.

The same jury sentenced Wood to death.

Wood's execution was postponed two years ago after defense attorneys claimed Wood is mentally disabled. In 2002, the U.S. Supreme Court ruled that the death penalty should not be applied to mentally disabled people because it violates the Constitution.

But during a court hearing Tuesday, defense attorney Gregory Wiercioch of the Texas Defender Service argued that DNA evidence found on a yellow swimsuit belonging to victim Dawn Smith matched her and an unknown man. Two other tests, conducted on a piece of a blue-green blouse belonging to victim Rosa Casio and a fingernail belonging to victim Angelica Frausto proved inconclusive.

Wiercioch also argued the DNA tests may have proved Wood's innocence if they had been presented during his jury trial, which may be the basis for a new trial.

Visiting District Judge Bert Richardson of San Antonio may make a decision today on whether the DNA tests would have made a difference.

A preview of the hearing, "Convicted serial killer David Leonard Wood expands appeal; hearing to be held today," by Diana Washington Valdez appeared in the Tuesday edition of the Times.

Convicted serial killer David Leonard Wood has expanded his death penalty appeal to also having his 1992 capital murder verdict overturned.

Several records in his file that previously were unsealed show that he requested an expert review of DNA evidence from his trial, and for his investigators to interview witnesses and collect documents to prove that he is mentally retarded.

Wood will have a hearing Tuesday in the 171st District Court to determine his fate. He is expected to be present for the proceeding.

The Texas Criminal Court of Appeals granted Wood a stay of execution two years ago, a day before he was set to be executed by lethal injection.

And:

He also asked for forensic DNA testing of items pertaining to several of the 1987 victims, Frausto, Casio and Smith, as well as documents related to Salvador Martinez and Edward Dean Barton.

Martinez, an acquaintance of Wood's, did not pass a 1987 polygraph test about the disappearances and murders of young women in El Paso.

Barton, who resembled Wood, told the FBI in 1989 that he killed four women in the El Paso area between May and December 1987.

Earlier coverage of the case of David Leonard Wood is at the link.

Florida Judge OK's Use of Pentobarbital

"Judge rules in favor of Florida’s new lethal-injection drug," is the title of the Miami Herald report by Patricia Mazzei.

Lawyers for a man who shot and killed a Coral Gables cop 33 years ago failed to prove that the new use of a drug in Florida’s lethal injections would cause inmates serious pain, a Miami-Dade judge ruled Wednesday.

Circuit Judge Jacqueline Hogan Scola rejected the argument by lawyers for Manuel Valle that the state’s switch to pentobarbital, a barbiturate, in its three-drug lethal injection could constitute cruel and unusual punishment.

The matter now heads to the Florida Supreme Court for review. The execution of Valle, who fatally shot Officer Louis Pena in 1978, is scheduled for Sept. 1.

Valle, 61, would be the first inmate executed using pentobarbital. The state changed its lethal-injection protocol in June, after production of the anesthetic sodium thiopental was discontinued.

Pentobarbital is intended to knock out inmates before a second drug paralyzes them and a third stops their heart.

Valle’s defense had argued that the use of pentobarbital as an anesthetic has not been extensively studied and that the drug is ineffective at rendering inmates unconscious.

In her 21-page decision, Scola ruled that it was not enough for the defense’s expert witness, Dr. David Waisel, an anesthesiologist with Children’s Hospital of Boston, to testify that the consequences of using pentobarbital are unknown. Instead, the defense needed to prove that the drug caused substantial risk of serious harm. The defense did not do so, she ruled.

“[T]his court finds that usage of pentobarbital does not create an objectively unreasonable risk of suffering,” Scola wrote.

And:

The high court has already set a timeline for lawyers on both sides to file an appeal. Oral arguments are tentatively scheduled for Aug. 24.

The AP filing is, "Judge denies Florida inmate’s challenge to replacement drug in execution cocktail."  It's via the Washington Post.

A judge has denied a Florida death row inmate’s challenge to a replacement drug in lethal injections.

Miami-Dade Circuit Judge Jacqueline Hogan Scola ruled Wednesday that using pentobarbital in the execution cocktail is unlikely to expose an inmate to pain and suffering. Scola says the state’s medical expert established that pentobarbital alone would be fatal in the planned doses.

Today's Palm Beach Post carries, "Miami judge OKs lethal injection drug," by Dara Kam.

The Danish manufacturer of pentobarbital, also known as Nembutal, twice asked Gov. Rick Scott not to use the drug for lethal injections and has stopped selling it to distributors who resell it for that use.

Valle's lawyers argued that the drug had not been tested and that its use may cause prisoners pain during executions, in violation of the cruel or unusual punishment threshold.

On Wednesday, Miami-Dade County Circuit Judge Jacqueline Hogan Scola agreed with three federal courts that already ruled the drug does not raise a substantial risk of harm.

Briefs are due to the Florida Supreme Court by Aug. 19, and the court has slated oral arguments for Aug. 24 if necessary.

Earlier coverage of the Florida hearing on the use of pentobarbital begins at the link.

Florida Lethal Injection Hearing - 2nd Day

Today's Miami Herald reports, "Doctors testify on new use of drug in Florida’s lethal injections."  It's by Patricia Mazzei.

Last week, a divided Florida Supreme Court ruled 5-4 to temporarily stay Valle’s execution — originally scheduled for 6 p.m. Tuesday — pending a hearing on the safety and efficacy of the drug, which is sold under the name Nembutal.

That hearing began last week in the courtroom of Circuit Judge Jacqueline Hogan Scola, who on Tuesday weighed the dueling opinions of two anesthesiologists.

Dr. David Waisel, who practices at Children’s Hospital in Boston, testified for Valle’s defense that the drug could cause inmates severe pain. Pentobarbital is used as a sedative and for certain patients with seizures or undergoing procedures that could affect the brain, he said, but the drug’s use to knock someone unconscious has not been extensively studied.

“We’re taking a drug that we know everything about, replacing it with a drug that we know almost nothing about,” he said. If the drug doesn’t work as intended, Waisel testified, inmates could feel the third drug in the lethal injection that causes cardiac arrest.

“They would feel the incredibly burning pain of potassium chloride,” he said, describing the possibility as a “probably hellish” experience.

The prosecution’s expert, Dr. Mark Dershwitz of the University of Massachusetts Memorial Medical Center, countered that the state’s lethal-injection dose of pentobarbital — five grams — is so large that it would cause the inmate’s breathing to become erratic, blood pressure to slow dramatically and brain activity to diminish.

“This dose is far in excess of any dose that would be used on a human that I can think of,” he said, testifying via video conference.

Would the dose be lethal? asked Ken Nunnelley, a senior assistant attorney general.

“Definitely,” Dershwitz said.

"Execution drug could cause pain," doctor says," is the AP report, via Fort Myers News-Press.

A doctor testifying for a death row inmate convicted of killing a police officer 33 years ago told a judge Tuesday Florida’s planned use of a replacement drug for lethal injections could cause extreme pain in executions.

Dr. David Waisel, anesthesiologist at Children’s Hospital in Boston, said the drug pentobarbital commonly sold as Nembutal, hasn’t been sufficiently tested to ensure an inmate is unconscious before two other deadly drugs are administered. States are using pentobarbital because the sole U.S. manufacturer stopped making the previous widely-used drug, sodium thiopental.

Waisel said use of pentobarbital “exposes the inmate to extraordinary risk” compared with the old drug. He said pentobarbital is most commonly used as a sedative and its effectiveness in rendering a person unconscious is not well known.

And:

The state’s medical expert, Dr. Mark Dershwitz, said the level of pentobarbital to be used in Florida’s execution protocol was enough to kill by itself and would easily induce a coma.

He also said the planned 5-gram dosage level would stop breathing, reduce blood pressure and cut brain activity.

Asked if it would be lethal, Dershwitz, anesthesiologist at the University of Massachusetts Memorial Medical Center, replied: “Definitely.”

The Supreme Court gave Miami-Dade Circuit Judge Jacqueline Hogan Scola until Friday to issue a ruling, which will then be reviewed by the high court.

Earlier coverage of the Florida hearing on the state's lethal inection protocol begins at the link.

Florida Lethal Injection Hearing Coverage

"US justices let Florida stay of execution stand," is the breaking news AP report this morning, via the Palm Beach Post.

The U.S. Supreme Court has refused to lift a stay of execution ordered by the Florida Supreme Court.

The federal justices Friday rejected a request by Florida Attorney General Pam Bondi to vacate the stay for Manuel Valle.

And:

The Florida justices, though, stayed the execution and ordered a Miami judge to hold a fact-finding hearing on a change in the state's lethal injection procedure.

That hearing begin Thursday and will continue next week.

Today's Miami Herald reports, "Lethal injection drug hearing to continue next week."  It's written by Patricia Mazzei.

A hearing that began Thursday morning on the new use of an anesthetic drug in Florida’s legal injections will continue next week, after a Miami judge decided that scientists for both sides should testify in person and via video conference on Tuesday.

The hearing stems from the case of Manuel Valle, sentenced to death for shooting and killing Coral Gables Police Officer Louis Pena in 1978. Valle’s execution, initially set for Aug. 2, was temporarily stayed by the Florida Supreme Court on Monday until Sept. 1, pending a hearing on the safety and efficacy of the drug in question, pentobarbital.

The defense’s expert witness on the drug was unable to be in Miami before Tuesday, when the judge was scheduled to be on vacation. The prosecution’s expert could have testified by phone Thursday, but Circuit Court Judge Jacqueline Hogan Scola — apparently postponing her vacation — said she would be more comfortable seeing the witness’s face by video to establish his credibility. That expert will testify Tuesday, too.

And:

Testifying for the defense, a federal public defender, described the June 16 execution in Alabama of Eddie Duval Powell. The witness, Matt Schulz, said by phone that Powell jerked up, clenched his jaw and looked confused for about a minute before passing out and later dying.

On the other side, John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship — expected to come up when the defense’s expert takes the stand next week — as relatively non-eventful.

The Florida Department of Corrections signed off last month on using pentobarbital, a barbiturate, to sedate inmates before a second drug paralyzes them and a third stops their heart.

The state had to switch sedatives after the Illinois pharmaceutical company that sold it the previous drug, sodium thiopental, discontinued the production of it because it did not want the drug used in executions.

The defense on Thursday admitted into evidence four letters sent to the state by Lundbeck, the Danish company that manufactures the pentobarbital, urging Florida not to use the drug for capital punishment.

Earlier lethal injection coverage from Florida begins at the link.

Florida Supreme Court Orders Hearing on Pentobarbital Use

The Florida Supreme Court has stayed the execution of Manuel Valle and ordered an evidentiary hearing on the use of pentobarbital.  The ruling in Valle v. Florida is available in Adobe .pdf format.

"Florida Supreme Court stays Valle's execution," is the AP filing written by Bill Kaczor.  It's via the Miami Herald.

A sharply divided Florida Supreme Court stayed the execution of convicted killer Manuel Valle on Monday so a judge can hear evidence and rule on whether he may feel pain from the use of a new lethal injection drug.

The justices, in a 4-3 decision, delayed Valle's execution for a month, from Aug. 2 until Sept. 1, absent further order of the high court.

And:

Valle's appeal will return to Circuit Judge Jacqueline Hogan Scola in Miami to hear evidence on the new drug and make a ruling. She had previously declined to hold such a hearing. The Supreme Court gave her until 2 p.m. Aug. 5 to issue a decision. Lawyers then will have through Aug. 19 to file written arguments and responses. The justices will hold oral arguments Aug. 24 "if necessary."

"Florida Supreme Court stays execution; drugmaker says anesthetic unsafe," by Dara Kam in the Palm Beach Post.

Department of Corrections officials in June replaced the anesthetic sodium thiopental, the first of the three drugs used in lethal injections, with pentobarbital sodium. Sodium thiopental's manufacturer stopped making the drug early this year, leaving corrections officials in death penalty states like Florida scrambling to find a substitute.

But Lundbeck Inc., the Danish manufacturer of pentobarbital, recently announced that the drug is untested and unsafe for use in lethal injections. Lundbeck stopped selling the drug to distributors who intended to resell it for use in executions.

Pentobarbital has never been FDA-approved as an anesthetic and Valle's lawyers raised questions about how much of the drug needs to be given to prevent the pain caused by the injection of potassium chloride. The drug has been used in at least 15 executions in other states.

"The Court has determined that Valle's claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol warrants an evidentiary hearing," the majority said in the order.

Last month, the execution of Roy Willard Blankenship in Georgia, using the same drug, went awry. Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital. Medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.

But in the minority dissent, Justice Charles Canady wrote that Valle failed to demonstrate that the new drug will meet the U.S. Supreme Court's threshold of "cruel and unusual punishment."

And:

A spokesman for Gov. Scott said that the governor doesn't have any involvement in the case at this stage, and didn't have a comment on the Department of Corrections' policy for executions. The spokesman, Lane Wright, said that if the stay is lifted, the execution will proceed, either on Aug. 2 or "within the appropriate timetable."

Wright didn't address what the governor would do if the court finds the protocol illegal.

Patricia Mazzei posts, "Fla. Supreme Court stays cop-killer execution," at the Miami Herald.

On June 8, the Florida Department of Corrections approved the use of pentobarbital as a substitute for sodium thiopental, the barbiturate the state had previously been using. Earlier this year, the Illinois pharmaceutical company that sold the state sodium thiopental discontinued its production of the drug.

Valle, who would be the first inmate executed under the new drug protocol, raised questions about whether the use of pentobarbital in the amount prescribed by the state could cause him to suffer pain.

Reuters carries, "Florida execution stayed to allow hearing on drug concerns," written by Colleen Jenkins.

Valle challenged whether the new sedative, often used to euthanize animals, would effectively induce unconsciousness.

The court determined that Valle "has raised a factual dispute, not conclusively refuted, as to whether the use of pentobarbital in Florida's lethal injection protocol will subject him to a 'substantial risk of serious harm.'"

Challenges to pentobarbital elsewhere have generally failed to prevent executions from being carried out. An execution in Georgia last week was filmed under court order after lawyers for a death row inmate raised concerns about the drug.

Related posts are in the lethal injection index.

The Delma Banks Hearing

"Second Death Penalty Fight Begins in Banks Case," is the title of Brandi Grissom's Texas Tribune post.

Delma Banks Jr. sat attentively in his yellow jumpsuit in the courtroom inside the Bi-State Justice Building on Monday as lawyers and experts debated how to make his second face-off with the death penalty a fairer fight than his first.

Thirty years after Banks was first sent to death row, his hair is gray and his face is rounder than when he first sat before a jury as a 21-year-old. Across the courtroom sat prosecutor James Elliott, his long-time antagonist, now white-haired after three decades of fighting to keep Banks on death row. At 52, Banks is facing the same Bowie County district's attorney office that sent him to death row in 1980 for the shooting death of 16-year-old Richard Whitehead. The same office that the U.S. Supreme Court ruled in 2004 committed misconduct when it tried Banks, suppressing evidence and intentionally hiding its mistakes. Banks’ sentence was overturned, and now he and Elliott, one of the original prosecutors, are once again in the same courtroom fighting for their own versions of justice.

A new trial to decide whether Banks should be executed for the 1980 murder is scheduled for October. At a pre-trial hearing on Monday, lawyers for Banks asked Judge Nathan E. White to consider a slew of motions that they argued are crucial to ensure that Banks gets a fair trial, including disqualifying Bowie County prosecutors from representing the state. They also asked the judge to remove the death penalty as an option in Banks’ case and to order a new trial to determine whether he committed the murder. White did not rule on the motions Monday, but the court heard arguments from the lawyers on both sides and from defense experts, setting the stage for the court battles to come.

And:

George Kendall, a New York-based attorney now representing Banks, told the court that Elliott’s comments to the news media, along with the original misconduct, should disqualify him and the entire Bowie County district attorney’s office from the Banks case. “Mr. Banks has been treated very shabbily,” he said. “The prosecution can be a vigorous advocate for the state’s case, but it can’t transcend and not comply with ethical standards and rules of law.”

In court Monday, Elliott refused to take the witness stand as requested by Banks’ lawyers. “I have no intention of testifying,” Elliott told the judge. “I don’t believe it’s proper.”Arguing against the motion, Elliott said that during the original trial he had not known that Farr was a paid informant or that Cook’s testimony had been coached. He said he “didn’t go hunting the press” to talk about Banks’ case but was defending himself against accusations he had prosecuted an innocent man. And finally, Elliott said, he should not be removed from the case because he promised Whitehead’s father he would see it through. “I intend to keep my promise to that dead boy’s father,” Elliott said. “I have lived with this case since its inception. I would respectfully ask the court let me see it through.”

Banks’ lawyers also asked the court to stop the state from seeking the death penalty because so much time has elapsed since the crime. Defense lawyers are required to present mitigating evidence during the punishment phase of a capital trial to help jurors decide whether the convicted person ought to get life or death. That evidence typically includes family, friends, acquaintances, teachers and others who can help the jury understand what the convicted person’s life was like and what might have led up to the crime at hand. Mitigation expert Danalynn Recer, founder of the Gulf Region Advocacy Center in Houston, told the court that finding people and records to tell the story of Banks’ pre-prison life would be nearly impossible given the passage of time.  

“There’s very little that’s been left after all these years,” Recer said, explaining that 82 of Banks’ family members have died since he went to prison in 1980. More than 80 of his neighbors from the tiny town of Nash have died. Most of his teachers and principals are dead, and so are many of his classmates. “Those are the folks who are able to give the jury reasons to choose life,” she said.

Also:

Judge White made no ruling on the motions Monday, but he said the only issue he had questions about was the motion calling for a new guilt-innocence trial. He indicated he was not inclined to disqualify Elliott or the Bowie County district attorneys office from the case.

The article notes that another hearing is scheduled for next month.

Earlier coverage of the Delma Banks case is at the link.  Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

The Case of Delma Banks

Texas Tribune journalist Brandi Grissom writes, "30-Year-Old Capital Case Returns to Court, With Defense Alleging Bias." for the New York Times

For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16-year-old Richard Whitehead.

The United States Supreme Court overturned Mr. Banks’s death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered their mistakes for decades.

“It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Mr. Banks’s appellate lawyers.

Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Mr. Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Mr. Banks until he “gets what he deserves.”

At a hearing Monday in a Bowie County state district court, Mr. Banks’s lawyers will ask Judge Nathan E. White to disqualify Mr. Elliott and the local district attorney’s office from the case and to assign different lawyers to represent the state.

“Mr. Elliott’s misbehavior proves that he cannot serve as a disinterested prosecutor and is laboring under a conflict of interest that will prevent Mr. Banks from receiving a fair trial,” lawyers wrote in court documents.

Mr. Banks, who is black and was 21 when the crime was committed, was convicted of killing Mr. Whitehead, who was white, so he could take off with his car. The police found Mr. Whitehead’s body in a park near Texarkana and soon discovered that Mr. Banks had been with him on the last night he was seen alive.

There were no witnesses to the killing and no physical evidence linking Mr. Banks to it. The prosecution’s case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Mr. Cook also had convictions for robbery by assault and forgery.

And:

In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Mr. Banks’s lawyers discovered a transcript showing that Mr. Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Mr. Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Mr. Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Mr. Banks, he said, persuading him to drive to Dallas to get a gun.

Prosecutors allowed Mr. Cook and Mr. Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Mr. Cook denied on the stand that anyone had helped him with his testimony, and Mr. Farr said he had not been paid for his help in the case. During closing arguments, Mr. Elliott told jurors that they should believe Mr. Cook and Mr. Farr.

In arguments before the Supreme Court, state lawyers did not dispute that Mr. Cook had been coached and that Mr. Farr was paid for his help. But they said Mr. Banks’s lawyers were at fault for not uncovering the information sooner.

The Supreme Court ruled that without the testimony of Mr. Cook and Mr. Farr, Mr. Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’ ” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

Mr. Elliott declined to comment last week about the case. “We’re in litigation,” he said. “The newspaper is the wrong place to be trying cases — it just is. So I can’t give any comment.”

A slightly different version, "Death Row Inmate Faces Same Prosecutors Who Committed Misconduct," at posted at the Tribune.

Banks’ lawyers are also asking the court to throw out the guilty verdict and order a new trial. They contend that the perjured testimony of Cook and Farr and the prosecutors’ withholding of facts also affected their client's ability to defend himself. “Because of the state’s purposeful suppression and misconduct, Mr. Banks was surely denied the full defense available to him,” his lawyers argue in court pleadings.

Owen, of the Capital Punishment Center, said police and prosecutorial errors raised serious questions about whether Banks had actually committed the murder. “In a case where the evidence of guilt is so very thin, and the misconduct by the prosecution is so far-reaching and well-documented,” he said, “there’s no reason for any court to have any confidence the conviction is solid.”

Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

Senate Nominations Committee Recommends Bradley Confirmation

"Senate panel votes to keep chairman of Forensic Science Commission," is the Austin American-Statesman report by Chuck Lindell and Mike Ward.

Dividing along party lines after a contentious hearing, a Senate committee voted Monday to recommend that John Bradley continue as chairman of the Texas Forensic Science Commission.

Four Republicans, including Nominations Committee Chairman Bob Deuell of Greenville, favored Bradley.

Democratic Sens. Kirk Watson of Austin and José Rodríguez of El Paso voted no. Later Monday, Democrats began weighing whether to start a coordinated fight over Bradley's nomination before the full Senate.

Most questions at Bradley's nomination hearing touched on his commission's high-profile inquiry into whether faulty science played a role in the conviction and execution of Cameron Todd Willingham for the 1991 arson deaths of his three children.

Sen. Rodney Ellis, D-Houston, spent the most time questioning Bradley and focused on a 2010 statement in which Bradley called Willingham a "guilty monster." Ellis questioned whether the statement was appropriate because it revealed a bias and undermined public confidence that Bradley was overseeing an impartial inquiry.

Bristling, Bradley questioned whether Ellis had his own conflict of interest in serving as board chairman for the Innocence Project, a New York legal center that has proclaimed Willingham innocent and filed the complaint that led to the commission's Willingham inquiry.

And:

Ellis is not on the Nominations Committee, but any senator may ask questions during a hearing. Afterward, Ellis said he planned to discuss opposing Bradley's nomination at an evening caucus of Democrats.

Other Democrats said that if all minority-party senators stick together, they might be able to block Bradley's appointment by severing his name from the list of nominees for approval. The 12 Democratic senators could then deprive Bradley of the 20 votes needed to bring his nomination up for a vote by the 31-member body.

Today's Dallas Morning News reports, "Senators grill chairman of Forensic Science Commission."  It's by Erin Mulvaney.

Williamson County prosecutor John Bradley collided with Democratic senators Monday over his actions as chairman of the Texas Forensic Science Commission, the center stage for the contentious investigation into the 2004 execution of Cameron Todd Willingham.

The Senate Nominations Committee ultimately approved Bradley with a 4-2 vote along party lines, sending his nomination to the full Senate. But before the vote, Democratic senators interrogated Bradley for more than an hour about his decisions as leader of the commission in the last 18 months.

The commission has investigated the Willingham case for the last few years. National fire experts have questioned the Corsicana man’s conviction in recent years, saying the science used to determine that the fire that killed his three children was arson was flawed.

Bradley was appointed as chairman in 2009, when Gov. Rick Perry shook up the commission just as it was about to hear from an expert who wrote a scathing report about the Willingham investigation.

Dave Montgomery writes, "Senate panel recommends confirmation of local forensic science panel members, 2 others," for the Fort Worth Star-Telegram.

The Senate Nominations Committee voted 4-2 on Monday to recommend the confirmation of Forensic Science Commission Chairman John Bradley after he defended his stewardship of the panel in a testy confrontation with Sen. Rodney Ellis, D-Houston.

The committee also unanimously recommended Senate confirmation of three other commission members: Fort Worth defense attorney Lance Evans, Tarrant County Medical Examiner Nizam Peerwani and Hidalgo County Medical Examiner Norma Farley.

The commission has been at the center of a controversy over its inquiry into an arson investigation that led to Cameron Todd Willingham's conviction for killing his three daughters in a 1991 house fire. The unemployed Corsicana mechanic was executed in 2004.

Baltimore fire expert Craig Beyler, in a report requested by the commission, has said that the arson investigation was based on outmoded forensic science, raising the possibility that the fire was an accident. Several other fire experts have reached similar conclusions.

During his 18 months as commission chairman, Bradley has been criticized by Willingham supporters for his handling of the investigation and for describing Willingham as "a guilty monster."

"Forensic Commissioners Answer to Legislators," by Aziza Musa is the Texas Tribune report.

The committee unanimously voted to nominate Evans, Hidalgo County Medical Examiner Norma Farley and Tarrant County Medical Examiner Nizam Peerwani. All votes will be taken to the Senate floor.

Sen. Rodney Ellis, D-Houston, who sat in the testimony today, urged the Senate to reject the Bradley's reappointment. Commission members have not closed any investigations since Bradley was appointed, he said.

"Sadly, Mr. Bradley has used his position to seize power over and thwart the will of the expert Commission, hide the Commission’s work from public view, greatly increase the Commission’s bureaucratic bloat, slow its previously impressive progress to a crawl, and otherwise prevent the Commission from accomplishing the legislature’s intent," Ellis said in a statement.

Earlier coverage begins with an editorial and preview of yesterday's hearing.

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Judge Tours California Execution Chamber

This morning's Los Angeles Times reports, "Federal judge tours San Quentin death chamber."  It's written by Carol J. Williams.

The federal judge weighing whether California can resume executing condemned prisoners toured San Quentin State Prison's new lethal injection facility Tuesday in what he called a fact-finding mission to help determine whether the state's revised procedures meet constitutional standards.

U.S. District Judge Jeremy Fogel halted the execution of murderer Michael A. Morales five years ago, citing concerns the execution team was poorly trained, the converted gas chamber too cramped and ill-lit and the state's method of delivering the three-drug execution cocktail at risk of inflicting cruel and unusual punishment.

Whether his concerns have been alleviated by rewriting of the legal protocols guiding the execution process and the physical changes made to the prison venue where death sentences are carried out was not immediately apparent.

The judge asked corrections officials questions about lighting, drug handling, conditions for witnesses and for the inmate's last hours but gave no indication whether the answers allayed his earlier concerns.

Fogel, leading an entourage of lawyers for the state, Morales and other prisoners facing execution if the practice resumes, went room to room in the clinic-like facility, inspecting the hand-lettered drug vials arrayed on two trays in the infusion room, where the execution drugs are to be mixed and delivered via intravenous tubes threaded through the wall of the adjacent death chamber.

Fogel said he hoped to have a decision about whether executions can proceed "as soon as possible" but set out a schedule for further hearings that will run at least through spring. California has 718 prisoners on death row, though only seven who have exhausted all appeals.

The judge's decision, when it comes, may be nullified by other obstacles to carrying out lethal injections, as new lawsuits have been filed challenging the legality of using imported sodium thiopental, the first of the three drugs used in lethal injection that is no longer manufactured in the United States.

Howard Mintz writes, "Federal judge tours new San Quentin execution chamber," for the Silicon Valley Mercury News.  This is also video at the link.

Just a short walk from the largest death row in the nation, a San Jose federal judge on Tuesday took an unusual tour of California's new execution chamber. His trip was designed to evaluate whether the state has fixed a key problem in its lethal injection process that would enable prison officials here to resume the grim business of putting condemned killers to death.

With a phalanx of lawyers, court staffers, prison officials and media in tow, U.S. District Judge Jeremy Fogel spent about an hour moving through each room of San Quentin Prison's newly constructed lethal- injection wing, a brightly lit collection of antiseptic rooms resembling a medical clinic. The centerpiece of the chamber, a lime-green

gurney, sits in the middle, unused thus far as a result of a five-year halt to executions in the state.

Fogel's expedition was part of his ongoing review of a legal challenge to California's lethal injection procedures, which the judge found "broken" in 2006 in a decision that has suspended executions on a death row now approaching 720 inmates. The Mercury News was one of five news organizations to accompany the judge on the tour.

And:

Fogel has scheduled several procedural hearings in the next few weeks but hopes to hold a full evidentiary hearing to resolve the case "as soon as possible." Even if the judge finds that the new chamber is sufficient, he must still address a host of other concerns, including whether execution team members are properly trained to carry out an execution and whether the state's mix of drugs is assured of being administered properly.

However, the judge is unlikely to decide the case until at least the summer, and his ruling is expected to be appealed.

"No ruling on death chamber," by Scott Smith for the Stockton Record.

At one point in the hourlong tour, Fogel stood in the injection room next to the green gurney laced with heavy black straps and requested the lights be dimmed in the other rooms.

"Perhaps we can do a small experiment," he said, wondering aloud if observers would be able to see through windows between adjoining rooms. He concluded they couldn't.

Fogel issued no rulings Tuesday. He has two upcoming hearings in the case and plans to schedule another when attorneys - for and against the newly adopted procedure and facility - will make their final arguments.

The judge said he wishes to conclude the case soon. It remains unclear when state officials will be able to resume executions.

Fogel took up the case about five years ago, when attorneys for Stockton's Michael Angelo Morales challenged the constitutionality of California's lethal injection procedure.

Fogel then visited the old gas chamber, which remains intact, and held extensive hearings. He ruled that California's method was broken to the point of potentially being unconstitutional.

Among his findings, Fogel said the old lethal injection chamber - the converted gas chamber - forced executioners to work in a cramped, dimly lit space.

He also ruled that the execution team was poorly selected and trained.

In response, state officials rewrote their manual and built the new $900,000 chamber. It includes separate wings for the relatives of the condemned, the victim's loved ones, official observers and the media.

Julie Small of KPCC-FM  files, "Federal judge surveys San Quentin death chamber," for Southern California Public Radio.  There is audio and video at the link.

Fogel asked how staff will prepare and inject execution drugs into the inmate in the chamber next door. "If this were an actual execution," said Fogel, "there would be intravenous lines going from this room through those ports to the execution chamber, correct?" "Correct," respondent San Quentin's information officer Lieutenant Samuel Robinson.

All along the way, Fogel described what he saw for the court record – and he asked Robinson to describe the purpose and contents of each room. "There’s a headrest," said Robinson. "There’s a series of straps utilized to secure the inmate in a couple of different areas."

In the execution chamber, Fogel asked Robinson to describe how staff will use the pale green gurney in the center of the room. "There are two armrests that are affixed to the gurney also used for secondary restraints to secure the inmates arms and legs," said Robinson.

Judge Fogel used the tour to create a court record of the new facility and how it might work. He didn’t get answers to all his questions but he says he can fill in the blanks later on. Fogel plans to hold a full hearing on the changes to the state’s execution methods as soon as he can.

Earlier coverage begins with this preview of the Judge's tour, yesterday, as well as an earlier preview.

Let me also link to coverage of Judge Fogel's involvement in a scheduled execution last year, and a media event displaying San Quentin's new death chamber.

More on Judge Fogel's 2006 ruling is here.  Other posts examining Judge Fogel's federal court hearing on California lethal injection practices include:

• Deborah Denno on Judge Fogel's Decision
• The California LI Hearing
• California LI Hearing - Day 4
• California LI Hearing - Day 3
• California LI Hearing - Day 2
• California Hearing
• The Execution of Stanley Williams

Related posts are in the lethal injection index.

Hearing Today in Georgia Lethal Injection Challenge

The Atlanta Journal-Constitution reports, "Julie Love killer to attend hearing on execution method."  It's written by Bill Rankin and Rhonda Cook.

A Fulton County judge will hold a hearing Friday on condemned killer Emmanuel Hammond's claim that his scheduled execution next week should be stopped until the state provides records concerning the drugs they will use to carry out the lethal injection.

Judge Michael Johnson has asked that Hammond be brought to Atlanta  from his cell on Death Row at the Georgia Diagnostic and Classification Prison in Jackson 50 miles away for the 1 p.m. hearing.

Hammond's lawyers have decided not to ask the state Board of Pardons and Paroles to stop his execution, scheduled for Tuesday at 7 p.m., for the 1988 abduction and murder of Julie Love in a case that gained wide publicity at the time. Instead, his lawyers are focusing on the courts, according to Atlanta lawyer Brian Mendelsohn.

That strategy includes a lawsuit filed Thursday seeking a stay of execution and contending that the state has failed to provide requested information about the drugs to be used for Hammond's execution by lethal injection.

The issue of drugs used in lethal injection is national. Some states have found the drugs they have in stock have expired. There also is a shortage of the sedative that Georgia and other states administer at the beginning of the process.

Prison officials have said Georgia has an adequate supply of the drugs.

The AP report by Greg Bluestein is, "Condemned Ga. man wants lethal injection details," via the Macon Telegraph.

A condemned Georgia man scheduled to die next week asked a judge Thursday to delay the execution because his lawyers claim the state won't hand over key details about a lethal injection drug that has been hard to track down amid a nationwide shortage.

The lawsuit, filed in Fulton County Superior Court by the Southern Center for Human Rights, asks the judge to halt Emmanuel Hammond's execution until the Georgia Department of Corrections details the cost, inventory and expiration dates for the drugs used in executions.

And:

The lawsuit contends that state officials denied the request because they claimed it could "compromise security against sabotage, criminal or terroristic acts." But the suit says those records are of "high public interest" and should be subject to inspection. Refusing to release them violates Georgia's sunshine laws, it said.

"The state has hid from public view critical records about whether the lethal injection process is medically and constitutionally acceptable," said Gerald Weber, an attorney with the Atlanta-based center. "If the state does not have the necessary chemicals, or is using expired ones, it cannot hide those facts from Georgians."

State officials declined to comment on the lawsuit. But corrections spokeswoman Peggy Chapman said that Georgia has "an appropriate supply of sodium thiopental and is prepared to carry out the order of the sentencing court."

The lawsuit is just one of Hammond's legal avenues in the run-up to the execution. Hammond's attorney Brian Mendelsohn said Thursday he won't be seeking clemency at a Board of Pardons and Paroles hearing scheduled for Friday, and instead will focus on "litigating his case in the courts."

Related posts are in the lethal injection index.

Statetement from John Green's Attorneys on CCA Ruling

The following statement has been released by Dick Burr, Casey Kiernan, and Robert Loper; attorneys representing John Green.

STATEMENT FROM ATTORNEYS FOR JOHN EDWARD GREEN IN RESPONSE TO TODAY'S RULING BY TEXAS COURT OF CRIMINAL APPEALS
 
"We are deeply disappointed that the Court of Criminal Appeals shut down the hearing in Texas v. Green. The Court’s decision takes refuge in legal principles and axioms that have no genuine application to the issue presented by Mr. Green, which is whether there is too great a risk of wrongful conviction in his case to allow the District Attorney to seek the death penalty against him.  To its credit, the Court expresses the view that the concerns raised by Mr. Green need to be addressed and urges the Legislature to do so.  Sadly, however, the Court failed to assume the responsibility that Texas courts also have to address the underlying issue: whether the Texas death penalty trial process creates an unacceptable risk that innocent people have, and will continue to be, wrongfully convicted and executed.  The Texas courts, every bit as much as the Texas Legislature, have the obligation to address this overriding concern.

"Before the Court blocked Mr. Green’s evidence, there were two days of testimony that showed the system is riddled with errors, inherently unreliable, and in urgent need of reforms.

"Among other serious issues, Mr. Green demonstrated that Texas has failed to enact safeguards to protect against mistaken identification, routinely uses paid informants who benefit from giving false testimony, and builds cases around faulty fingerprint matches. Innocent people can and do get sentenced to death in Texas and across the country. Anyone who looks the other way is fooling himself.    

"The truth cannot be stifled forever. Four study commissions authorized by three branches of government have formally recognized the serious risks of wrongful convictions in Texas. To date, virtually nothing has been done to address the issues. We urge the Legislature to enact reforms recommended by the study commissions in the upcoming session. 

"The decision by the Court of Criminal Appeals today does nothing to dispel the cloud of unreliability and indifference that hangs over the Texas capital punishment system – a cloud that has been widely recognized in Texas and across the nation by a broad and diverse range of prominent individuals, including former governors, legislators, law enforcement and victims who filed a brief with the Court urging them to allow the hearing to continue.

"We must do everything in our power to make sure Texas doesn’t create another Cameron Willingham, Claude Jones or Anthony Graves."

Earlier coverage begins with the preceding post.

CCA Shuts Down Harris County Hearing

The Court of Criminal Appeals opinion in Lykos v. Fine is in Adobe .pdf format.

Juan Lozano posts the AP report, "Court: Judge can't rule on Texas death penalty."  It's via the Houston Chronicle.

Texas' highest criminal court on Wednesday permanently stopped an unusual court hearing on the constitutionality of the death penalty in the state, ruling the Houston judge who had ordered it doesn't have the authority to conduct the legal proceeding.

The Texas Court of Criminal Appeals said that state District Judge Kevin Fine was "acting beyond the scope of his lawful authority" when he decided to hold the two-week hearing, which began last month but was temporarily stopped after two days at the request of prosecutors.

Last spring Fine initially declared the Texas death penalty statute unconstitutional after granting a pre-trial motion in a capital murder case he is presiding over. Under heavy criticism, Fine clarified then rescinded his ruling and ordered the hearing, saying he needed to hear evidence on the issue.

Fine is a judge in Harris County, which has sent more inmates to the lethal-injection gurney than any other county in the nation.

Lawyers for the Houston man who had asked for the hearing had argued that flaws in how death penalty prosecutions are conducted in Texas have resulted in a risk that innocent people will be executed. They said their client, John Edward Green Jr., is innocent and that the case against him uses some of the same faulty evidentiary procedures that have resulted in others being wrongly convicted. Green, who is awaiting trial, faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

In its 16-page ruling, the appeals court said the issues raised by Green's attorneys are important moral and public policy questions more suitable for debate by legislators and not the courts.

"Neither trial judges nor judges on this court sit as a moral authority over the appropriateness of the death penalty," the appeals court said. "We can determine only whether it has been constitutionally imposed by a jury after a specific conviction and sentence."

The appeals court is dominated by Republicans and led by a chief judge who was disciplined for closing the court promptly at 5 p.m. while a death row inmate tried unsuccessfully to file an appeal hours before he was executed.

"Houston death penalty challenge must end, court rules," is Chuck Lindell's initial report for the Austin American-Statesman.

Today, the court ruled 6-2 that Fine exceeded his authority and ordered him to dismiss Green’s challenge. Texas law does not allow judges to hold pretrial hearings on the constitutionality of a law, said the opinion by Judge Cathy Cochran.

In addition, until the death penalty statute is applied against Green, he does not have legal standing to challenge the law, the court ruled.

“One does not put the cart before the horse: a defendant has no claim of wrongful conviction or wrongful sentencing before he has even gone to trial,” Cochran wrote.

“It bears noting that no provision of the current (death penalty statute) has been held unconstitutional by the Supreme Court or this Court, although that statute has been attacked many times,” Cochran added.

Judges Tom Price and Paul Womack dissented without submitting an opinion stating their reasons. Recently retired Judge Charlie Holcomb did not participate.

The Houston Chronicle has, "Court permanently halts death penalty hearing in Houston," by Brian Rogers.

The highest criminal court in Texas this morning permanently halted a Houston judge's hearing on the constitutionality of the state's procedures surrounding the death penalty.

State District Judge Kevin Fine began what was expected to be a two-week hearing about the death penalty last month after he declared the death penalty unconstitutional in March. He rescinded his March ruling and decided to hear evidence before making his decision.

Two days into the December hearing, the Court of Criminal Appeals agreed to reconsider a motion by the Harris County District Attorney's Office to stop the hearing and halted the proceedings until further notice.

The decision, released this morning, agrees with the district attorney's office that there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the constitutionality of a law.

The underlying case centers around John Edward Green, who is accused of a 2008 robbery and slaying in southwest Houston. Green faces the death penalty if convicted in the shooting death of Huong Thien Nguyen, a 34-year-old mother of two.

He has yet to be tried, convicted or sentenced to die, which seemed to be the central to the Court of Criminal Appeal's ruling.

Earlier coverage of the Harris County hearing begins with the post, "News Coverage of the Amicus Brief in Green."