The StandDown Texas Project

The Open Government Lawsuits on Executions - Arizona, Idaho Updates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prison officials say expanding access simply invites too many risks.

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

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

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

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

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

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

Idaho Execution Protocol Lawsuit Update

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

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

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

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

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

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

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

Earlier coverage of the Idaho lawsuit begins at the link.

The June Issue of Texas Monthly

It's jam packed with criminal justice coverage.  Editor Jake Silverstein introduces it with, "The Scales of Injustice."

About a year ago, it was reported that Randall Dale Adams had died, bringing to a close one of the more tragic stories in recent Texas history. A construction worker from Ohio, Adams (pictured here, in 1989) was convicted and sentenced to die in 1977 for the murder of Dallas police officer Robert W. Wood. He spent twelve years behind bars—and, in 1979, came within three days of being executed—before being released in 1989 after the key eyewitness recanted his previous testimony. The story was brought to widespread attention by the landmark documentary The Thin Blue Line, and Adams’s case became a rallying point for advocates of criminal justice reform. But after a few years of speeches and television appearances, he mostly shunned the spotlight, and by the time he died he was living in complete obscurity. When his obituary ran last June, he had already been dead for eight months.

For a time, Adams was the public face of wrongful convictions, but that dubious mantle has long since passed on to others who suffered a similar fate.

The main course is a roundtable discussion, "Trials and Errors," moderated by Michael Hall and Jake Silverstein.  It features:

Art Acevedo has been the chief of the Austin Police Department since 2007.

Rodney Ellis was elected to the state Senate in 1990 from District 13, in Houston.

Anthony Graves was wrongfully convicted in 1992 and released from jail in 2010. He lives in Houston.

Barbara Hervey is a judge on the Court of Criminal Appeals and the chair of the court’s fourteen-member Texas Criminal Justice Integrity Unit. She lives in San Antonio.

Kelly Siegler is a special prosecutor. She lives in Houston.

Craig Watkins is the DA of Dallas County and a former defense attorney.

Here's the beginning of this must-read:

Jake Silverstein, editor of TEXAS MONTHLY: Senator Ellis, we’re here tonight to discuss the issues in our criminal justice system that have led to some wrongful convictions and to talk about what can be done. But for starters, can you try to give us a sense of how serious you think this problem is?

Senator Rodney Ellis: I think it’s a major problem. We incarcerate more people than anyone else in the nation, we execute more people than anyone else in the nation, and we spend less on indigent defense than virtually everybody else in the country. You add those up, and it’s like 1-2-3: we have more DNA exonerations than any other state in the country. The criminal justice system is a government program. In every other sphere of public policy, the assumption is that sometimes the government makes a mistake. In this area, it could be life or death. Now, with that said, I’ll take the criminal justice system in America, on the whole, over any other in the world. And I am convinced that most people who are in jail are guilty. But we can do better.

Silverstein: Judge Hervey, the senator says he thinks we have a major problem. Would you define it the same way?

Judge Barbara Hervey: I would, but I have a little different spin. If the other 49 states think for a minute that they don’t have people in prison that shouldn’t be there, they’re mistaken. Texas is paying attention. My approach is that education is the key to the whole thing. You’ve got to get every person in the system on the same page with regard to wrongful convictions, because if they’re not on the same page, we’ll continue to have these problems.

And it’s about the public too. I recently went to a forum in Dallas with a lot of interested citizens, and I’ll tell you what, they were angry. This concept of innocence meant people were getting a bunch of money; it’s costing the state. And I said, “Wait a minute, let’s start at the beginning. How would any of you like to spend one day in prison for something you didn’t do?” And I was amazed. This group turned around and went, “Oh my God, this is horrible.”

The issue also contains a Letter From Corpus Christi, "Hannah’s Prayer," an update on the case of
Hannah Overton.  It's by Pamela Colloff.  Earlier this year, Colloff examined the case for TM in, "Hannah and Andrew."

Arizona Lethal Injection Litigation

Today's Arizona Republic reports, "Media asks to witness Arizona lethal-injection preparation."  It's written by Michael Kiefer.

Last week, a 9th U.S. Circuit Court of Appeals judge questioned why the media had not demanded to witness how Arizona Corrections officials prepare death-row prisoners for execution, and on Tuesday, a media association rose to the challenge.

The First Amendment Coalition of Arizona Inc. filed a motion in federal court to intervene in a federal lawsuit filed by several Arizona death-row prisoners challenging the state's lethal-injection procedures.

U.S. District Court Judge Neil Wake denied the coalition the right to intervene, which would have made them plaintiffs in the case. But he did allow the journalists to have "amicus" status, meaning they can file briefs related to the case and still argue the right to witness how executioners insert IV catheters that deliver the lethal drugs.

One of the prisoners, Samuel Lopez, faces execution June 27. He was supposed to be put to death on May 16, but the Arizona Supreme Court stayed the execution because three members of the state's clemency board had not yet undergone sufficient training to consider Lopez's clemency request.

At issue, as the 9th Circuit judge wrote, is that "the state insists upon extreme secrecy" in its executions. Attorneys for Lopez and the other defendants have repeatedly detailed how state executioners have struggled to insert the catheters that carry the lethal drugs into prisoners' arms and usually end up surgically implanting a catheter in the prisoners' femoral veins, located in their groin areas.

One prisoner who was executed, Robert Towery, was allegedly denied the ability to speak to his attorneys when the medical team was unable to find a vein in his arms and instead installed the femoral catheter.

And:

The First Amendment Coalition includes the Arizona Newspapers Association, Arizona Broadcasters Association, Arizona-New Mexico Cable Communications Association, Society of Professional Journalists and Arizona Press Club.

KPHO-TV reports, "First Amendment organization challenges execution secrecy," by Morgan Loew.

The Arizona First Amendment Coalition has filed a motion in federal court that may shed new light on Arizona's controversial execution process.

 

The motion to intervene cites problems the Department of Corrections has had in administering the lethal injection to condemned inmates, as well as the public's First Amendment right to view all aspects of the execution process.

 

The motion asks the federal judge to allow a member of the media to witness the entire execution process. Right now, witnesses are limited to the final stage of the execution.

The motion comes on the heels a 9th Circuit Court of Appeals ruling that indicates Arizona's execution process is draped in more secrecy than the processes in other states.

Earlier coverage of Arizona lethal injection and clemency issues begins at the links.

The Idaho Lawsuit

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

And:

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

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

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

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

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

5 Western US States Shielding Part of Executions

That's the title of an AP report written by Rebecca Boone.  It's via the Houston Chronicle and it begins today's lethal injection news.

A U.S. appeals court ruled in 2002 that every aspect of an execution should be open to witnesses, from the moment the condemned enters the death chamber to his or her final heartbeat.

The ruling established what was expected of the nine Western states within the court's jurisdiction. A decade later, five of the states have kept part of each execution away from public view, according to an Associated Press review and death penalty experts.

Idaho, Arizona, Washington, Montana and Nevada have conducted 15 lethal injections since the ruling, and half of each procedure has been behind closed doors.

That means that a small group of witnesses, including members of news organizations who act as representatives of the public, do not see, for instance, the insertion of the IVs that deliver the fatal drug mixture.

The practice comes at a time when the method itself has drawn greater scrutiny, from whether the drugs are effective to whether the execution personnel are properly trained.

The states that limit access say they do so to protect the anonymity of the execution team, which may include emergency medical technicians, military medics or others trained to insert IVs. Open government and journalism groups argue that witnessing all aspects of an execution is the only way to determine if it is being properly carried out.

The AP and 16 other organizations on Tuesday sued the state of Idaho to force officials to open the entirety of their executions, arguing that the news media, and by extension the public, has a First Amendment right to view all steps of lethal injections.

"This lawsuit is really all about obtaining access to the entire execution process for viewing purposes," said Chuck Brown, the attorney representing the news organizations. "It's very important in a society such as ours to have full transparency in regards to the exercise of government authority."

And:

Several high-profile cases since 2006 have raised questions about the way states conduct lethal injections.

In two instances in Ohio, one of the few states that allow witnesses to see the entire process, corrections staff couldn't find a vein. In one of those cases, officials halted the execution and the inmate remains on death row. With news organizations present, the experiences of the inmate, Romell Broom, were widely reported.

In another case, in Florida in 2006, which does not allow viewing of the IV insertions, executioners pushed the needles through Angel Nieves Diaz's target veins and into the soft tissue beneath. He had to be given a second dose and took 34 minutes to die — more than twice the normal time.

Also:

In the 1990s, several news organizations attempted to get on the witness list for the lethal injection of William Bonin in California. Bonin was dubbed the "Freeway Killer" for the serial murders of 14 young men and boys.

Those who did witness the execution were unsure about what they saw.

Bonin was already strapped to a gurney with IV tubes attached when the death chamber's curtains were drawn open. He barely moved, and his eyes were closed. A few silent minutes passed, and then he was pronounced dead.

The California First Amendment Coalition sued, saying the limited access violated the public's First Amendment rights to view executions. California officials argued the restriction was necessary to preserve the execution team's anonymity.

In 2002, the 9th U.S. Circuit Court of Appeals rejected that argument, saying there were other ways to protect their identity. Execution team members could wear surgical masks, hats and gloves, the court noted.

"Independent public scrutiny — made possible by the public and media witnesses to an execution — plays a significant role in the proper functioning of capital punishment," the judges ruled.

The ruling applies to a region that stretches from Montana to Hawaii and Alaska. Alaska, Hawaii, Guam and the Northern Mariana Islands do not have the death penalty, and Oregon currently has a moratorium on executions. Only California has followed the ruling.

Boone has also written a sidebar AP article, "US executions go from town square to behind bars."  There are photos at the link.

America's executions have changed dramatically over the years, morphing from daylong events in the town square to somber and tightly controlled affairs held deep inside prisons.

Driving the change was the quest for a less gruesome — even less painful — method of execution.

Along the way, the public saw less of what happens when the state puts an inmate to death.

Today, nearly all of the 34 states that use lethal injection restrict access to half of every execution, shielding from view the portion when the condemned enters the death chamber and the IV lines are inserted.

In early America, hanging was the standard.

Typically, hundreds of spectators would pack the town square or hanging ground, bringing picnics and listening to sermons, said Trina Seitz, a death penalty expert at Appalachian State University.

By the 1800s, politicians were growing concerned that the atmosphere had grown too festive.

Spectators sometimes got more violence than they bargained for. If the hanging rope was too short, the condemned would slowly suffocate. If it was too long, he would be beheaded.

Starting in the 1820s, states began moving hangings inside prison yards.

Over the following decades, another development began to affect the way people viewed pain: anesthesia.

Doctors were using it to keep their patients from feeling pain, and that made them used to the idea that pain was avoidable, said Stuart Banner, a legal historian and professor with UCLA's School of Law.

More on the Idaho lawsuit in the next post

Pardon From Kasich Is Rare

That's the title of aColumbus Dispatch report subtitled, "So far, governor granting only 5 percent of appeals mostly from ex-convicts."  It's by  Alan Johnson.

Gov. John Kasich has used his executive clemency power moderately during his 16 months in office, sparing the lives of two convicted killers but approving only 5 percent of other requests.But Kasich has done far better than his predecessor, Ted Strickland, in keeping up with clemency requests. Strickland made no decisions for nearly three years in office and rushed to complete hundreds of cases in his last few months as governor.In 412 clemency requests decided thus far, Kasich released no one from prison. However, he did block the executions of Shawn Hawkins of Hamilton County and Joseph Murphy of Marion County. Both were convicted of murder and sentenced to death; Kasich commuted their sentences to life without parole.

Kasich refused to grant clemency in six other murder cases; all resulted in executions.

Records obtained from Kasich’s office show that he approved pardons in 14 older, less-serious cases for former prisoners who wanted to clear their criminal records for employment or education purposes or, as one ex-offender asked, so he could “live out his life as a free man.”

The most high-profile case involved Kelley Williams-Bolar, an Akron mom who was jailed for fraudulently switching her children to a neighboring school district. Kasich went against the recommendation of the Ohio Parole Board and used his unfettered clemency power to reduce Williams-Bolar’s two felony convictions for tampering with records to first-degree misdemeanors.

And:

Kasich rejected clemency in 386 cases overall and has 278 others to decide. More clemency requests arrive daily.

Under state law, he must have a recommendation from the Ohio Parole Board before acting.

Kasich’s 5 percent approval record, which places him among the most-conservative governors in terms of exercising clemency power, probably will change over time.

Strickland approved roughly 20 percent of the 1,615 cases he handled between 2005 to 2010, most for pardons involving low-level, nonviolent offenses. He also spared the lives of convicted killers.

Former Gov. Richard F. Celeste, a Democrat, granted 67 clemencies just before leaving office in 1991, wiping out death sentences for eight killers and shortening prison time for 26 female inmates who were victims of battered-woman syndrome.

Former Govs. Bob Taft and George V. Voinovich each approved less than 10 percent of the clemency requests they received.

"Convicted Murderer Denied Clemency," is the AP report via the Ohio News Network.

The Ohio Parole Board recommended Friday that the governor deny clemency for a man sentenced to death for killing his estranged wife and brother-in-law in a basement room at a courthouse in 1992.

Abdul Awkal is slated to be put to death June 6 in one of 11 executions scheduled over the next two years.

Awkal's lawyer argued the 53-year-old man suffers from severe mental health problems and should be spared, but the state said Awkal carefully planned the killings and should be executed.

The parole board voted 8-1 against recommending mercy, with most members concluding that Awkal planned the shooting and that it wasn't the result of a psychotic breakdown.

While he had asserted remorse, "he clearly blames the victims for allegedly creating the circumstances that forced him to kill them," the board said. Its decision goes to Gov. John Kasich, who has the final say on whether to grant clemency.

Related posts are in the clemency index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  The Appendix contains comparative state information.

The Texas Lethal Injection Drug Stock

"Texas has enough lethal drugs for 23 executions, officials say," is the Austin American-Statesman report by Mike Ward.

Forced to go public by an order from Texas Attorney General Greg Abbott, state prison officials late Friday disclosed that they have enough lethal drugs on hand to carry out as many as 23 executions.

The agency also said Friday that it does not prepare backup doses of the lethal drugs for each execution, as state officials have long said policy requires.

In a brief statement issued without elaboration, the Texas Department of Criminal Justice said it has 46 2.5-gram vials of Nembutal on hand and similar amounts of two other drugs included in a three-drug cocktail used in executions at the Huntsville Unit.

That could mean that Texas has the largest stockpile of the lethal drugs in the country, at a time when other states are scrambling to find suppliers for the same drugs.

Death penalty critics have long suspected that Texas has not been following state policy on backup doses, but until Friday there was no official confirmation.

For years, state officials have said agency policy calls for them to prepare double doses of the three-drug cocktail in case the initial round fails. If the backups were prepared, each execution would use twice the amount of lethal drugs as is needed if the first dose executes the prisoner.

Prison officials have previously refused to comment on whether the backup doses were being prepared. But on Friday, officials said that they interpret the policy to require the drugs to be on hand but not in syringes.

"The backup set of lethal injection drugs is not actually prepared, but an additional dose is available if needed," the brief statement said Friday.

Abbott's opinion Monday was prompted by requests under the Texas Public Information Act filed by the American-Statesman and a reporter for The Guardian, a British newspaper.

"After Texas AG ruling, prison officials air lethal injection drug information," is Allan Turner's report for the Houston Chronicle.

The issue is a particularly sensitive one at TDCJ, which has faced significant problems in obtaining ingredients for its three-drug "lethal cocktail" used in executions. Scarcity of the drugs has propelled the cost of an execution from about $83 to $1,286 in only a year, the Austin newspaper reported.

On Friday, TDCJ reported that it has 46 2.5-gram vials of pentobarbital, a drug administered to sedate the condemned inmate; 290 10-mg vials of pancuronium bromide, a muscle relaxant used to halt breathing; and 737 20-milliequivalent vials of potassium chloride, a drug injected to stop the heart.

The agency, which has executed five killers this year, did not indicate how many individuals could be put to death with the existing stock.

The AP filing is, "Texas prison officials say they have enough drugs for 23 executions," by Michael Graczyk.  It's via the Longview News-Journal.

Texas prison officials disclosed Friday they have enough lethal drugs to execute as many as 23 people.

In response to this week’s opinion from the state attorney general’s office that said the Texas Department of Criminal Justice could not withhold information about the drug supply, the department said it currently has 46 2.5-gram vials of pentobarbital. A 5-gram dose — about 3.4 ounces — is the first lethal drug used during each execution in Huntsville, according to Texas execution procedures.

The prison agency said it had similar supplies of two other drugs also administered to condemned inmates. It did not, though, identify suppliers of the lethal drugs, which the opinion also had addressed.

Executions also involve 100 milligrams of pancuronium bromide and 140 milliequivalents of potassium chloride. Texas has 290 10-milligram vials of the pancuronium bromide — 10 are required per execution — and 737 20-milliequivalent vials of potassium chloride — seven per punishment.

The department’s written procedures call for a matching set of drugs and syringes “in case unforeseen events make their use necessary.” But in a brief statement emailrd to reporters late Friday, the agency said a backup set of lethal drugs for executions “is not actually prepared, but an additional dose is available if needed.”

The attorney general’s opinion, dated Monday, was an answer to public information requests filed earlier this year by the Austin American-Statesman and British newspaper The Guardian.

Prison officials had argued that releasing the information could be harmful to employees and provide death penalty opponents a way to harass the drug suppliers with the hope firms would refuse to do business with the state.

“We find your arguments as to how disclosure of the requested drug quantities would result in the disruption of the execution process or otherwise interfere with law enforcement to be too speculative,” Sean Opperman, an assistant attorney general, wrote in the opinion.

Earlier coverage of Texas lethal injection issues begins at the link.  The Attorney General's Open Record Decision OR2012-07088 is available in Adobe .pdf format.

According to TDCJ, six Texas executions are currently scheduled; the next is set for June 6.

Related posts are in the lethal injeciton index.

TDCJ Must Release Lethal Injection Drug Stock Information

The Attorney General's Open Record Decision OR2012-07088 is available in Adobe .pdf format.

Today's Austin American-Statesman reports, "Prisons system ordered to release details on execution drugs."  It's written by Mike Ward.

In a victory for open government, Texas prison officials on Thursday lost their latest attempt to keep secret details about its stock and suppliers of lethal injection drugs.

In an opinion dated Monday, Attorney General Greg Abbott overruled arguments by the Texas Department of Criminal Justice that disclosure of the information would endanger employees and allow death-penalty opponents to try to cut off the agency's supply line for the three drugs used in executions.

The attorney general's decision was prompted by requests for details about the state's lethal-drug supplies and suppliers filed in February by the American-Statesman and The Guardian, a British newspaper.

In seeking to keep secret most information about the source, cost and inventory of lethal drugs, prison system attorney Patricia Fleming had argued that disclosing details about the drugs could allow death penalty opponents to harass suppliers and otherwise "engage in a campaign to cut off the supply of execution drugs."

Abbott's office rejected those claims as too speculative and said the state must release the information. But prison officials were in no rush Thursday to make the information public.

"Haven't seen the ruling yet. Will get back to you in the next day or two after I have had a chance to review it," Melinda Bozarth, the agency's general counsel, said in an email.

Even so, advocates of transparency in Texas' execution process hailed the decision.

"They rightly reject as speculative TDCJ's outlandish and unfounded assertions that release of this public information would interfere with law enforcement or threaten public safety," said Maurie Levin, a University of Texas adjunct law professor who was criticized in the prison agency's request to Abbott for working to make public details about Texas' execution process as part of her work on court appeals for condemned prisoners.

And:

The opinion marks the second time in two years that Abbott has blocked prison officials' attempts to keep secret details about the lethal drugs. In the fall of 2010, they sought to withhold much of the same information — at one point claiming that disclosure could possibly cause rioting outside the death chamber in Huntsville by inflaming the controversy over the death penalty.

Earlier coverage of TDCJ's lethal injection stock begins at the link.  Earlier coverage of the agency's battle against the Texas Open Records Act is also available.

More From David Protess on the Hank Skinner Case

"Texas Lawman to High Court: DNA Testing "Frivolous" in Death Penalty Case," is David Protess' latest at Huffington Post.  He's President of the Chicago Innocence Project.

Texas law enforcement officials have come up with some mighty creative legal arguments over the years to justify executing Hank Skinner without first testing evidence that could prove his innocence -- or confirm his guilt.

At times, they claimed the tests would be costly to the taxpayers. Then Skinner's legal team agreed to pay for the tests.

Shifting gears, they argued that Skinner had waived his right to the tests when he didn't request them before his trial. Then Gov. Rick Perry signed legislation that ensured post-conviction DNA testing in cases like Skinner's.

So, at the Texas Court of Criminal Appeals on Wednesday, they needed an imaginative pitch to persuade the nine judges not to apply the new DNA law to Skinner's case. That chore fell to Solicitor General Jonathan Mitchell, who told the judges -- presumably with a straight face -- that the request for DNA testing was merely a "frivolous" attempt to delay Skinner's execution.

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

The Pennsylvania Death Penalty & Ray Krone's Exoneration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

TDCJ Continues Push for Privacy

Today's Houston Chronicle reports, "TDCJ wants to block release of lethal injection drug info."  It's by Allan Turner.

The Texas Department of Criminal Justice is refusing to disclose the size of its stock of a key pharmaceutical used in executions, saying doing so would endanger its drug makers and suppliers.

The charge comes in a brief filed with the Texas Attorney General's Office in response to a December query by an British newspaper concerning the contents of state's death house medicine chest. The agency said releasing such information would provide ammunition for Reprieve, a British anti-death penalty group that successfully has pressured drug makers to stop selling to executioners.

Likening Reprieve's campaigns to those of violent prison gangs, the brief written by TDCJ Assistant General Counsel Patricia Fleming asserts that releasing information "creates a substantial risk of physical harm to our supplier. ... It is not a question of if, but when, Reprieve's unrestrained harassment will escalate into violence..."

TDCJ is seeking authorization not to answer questions posed in a December public information request by Ed Pilkington, the New York correspondent for The Guardian, a national British newspaper. An attorney general's response is expected this month.

Pilkington sought to determine how much pentobarbital, one of three drugs used in executions, the death house had in stock. He also asked how the agency met requirements that a second "back up" dose of lethal drugs be available at executions.

"I was very surprised by the language they chose to use, which was pretty inflammatory, really," Pilkington said. "Obviously, there is an international disagreement over the death penalty. ... Usually that discourse is conducted in a civilized manner."

And:

Joseph Larsen, a lawyer for the Freedom of Information Foundation of Texas, said Pilkington's questions go to the "heart of how effectively TDCJ performs its official functions."

"The whole idea behind the Texas Public Information Act is that the governmental bodies do not get to control the information that underlies political discussion," he said. "Specifically, the governmental body does not even get to ask why a requestor wants certain information. How then can a governmental body base its argument for withholding on what use it anticipates will be made of the information if released?"

Earlier coverage of TDCJ's response to the Open Records Act request begins at the link.

Texas' Lethal Injection Stock Replinished?

Today's Austin American-Statesman reports, "Prison system appears to have bought $50,000 in execution drug last year."  It's by Mike Ward.

A year ago, facing a possible shortage of key drugs needed to keep the nation's busiest execution chamber in business, Texas prison officials appear to have purchased tens of thousands of dollars worth of the lethal drugs, new disclosures by state officials reveal.

While no detail is provided, records obtained by the American-Statesman hint that Texas could have enough of the drugs on hand to cover its executions for more than a year and perhaps the largest stockpile in the country — at a time when other states are scrambling to find suppliers for the same drugs.

The disclosure came this week, when the Texas Department of Criminal Justice filed paperwork seeking to keep secret all details of five purchases last May and June of "medical supplies" from Physician Sales & Service Inc.

Asked by the Statesman to make public details about those purchases made with taxpayer dollars, as the agency routinely does with other items it buys, prison officials appealed to Attorney General Greg Abbott to keep the information from public view.

"The requested copies of vouchers, invoices, purchase orders and other purchasing documents will reveal the identities of suppliers of the agency's lethal injection drugs," Patricia Fleming, an assistant general counsel for the prison system, wrote in a letter Tuesday to Abbott.

Although Fleming's letter seems to state that the purchases were lethal drugs, a spokesman for the prison agency disputed that.

"We've not identified what the medical supplies are listed on the invoices," prison spokesman Jason Clark said.

In seeking to keep the information secret, Fleming wrote that disclosure would allow death penalty opponents and others "to intimidate, harass and threaten the suppliers, forcing them to shut down production or blacklist correctional departments."

She also accused an "abolitionist coalition" including death penalty opponents, human-rights organizations, criminal defense attorneys and the media of engaging in a campaign to cut off the supply of execution drugs.

And:

It accused groups such as Reprieve, Human Rights Watch and Amnesty International of harassment and intimidation of state corrections agencies such as Texas' prison system from being able to buy the lethal drugs.

London-based Reprieve is singled out for the harshest criticism. Fleming compares it to a violent prison gang.

The group's methods "present classic, hallmark practices comparable to practices by gangs incarcerated in the TDCJ who intimidate and coerce rival gang members and which have erupted into prison riots," Fleming wrote.

"It is not a question of if but when Reprieve's unrestrained harassment will escalate into violence against a supplier" of the lethal drugs, the letter says.

Maya Foa, a London-based investigator for Reprieve who was criticized by name in Fleming's filing, said the drug companies "objected to the misuse of their products well before they met Reprieve. ... These companies' ethics and actions are very much their own."

Earlier coverage of TDCJ's war of words with Reprieve begins at the link.

Michael Morton's Conversation With Chuck Lindell

Austin American-Statesman journalist Chuck Lindell broke the story of new developments in Michael Morton's case that led to his exoneration.  He's still covering the story, and the Statesman has published a two-day series, "Free to Speak;" a wide-ranging conversation between Morton and Lindell.  There is video at the links below.  It's a must-read.

"Morton can look back on pain and prison, but lives in peace," is the first part of the interview

Morton's arrival in prison immediately drove home the seriousness of his new situation.

Standing in a line of inmates wearing only prison-issued boxer shorts, Morton said he counted 13 stab wounds on the back of the man in front of him. Suddenly, the advice imparted from a longtime inmate at the county jail made perfect sense: "Keep your mouth shut and your eyes open."

Morton had to learn to stand up for himself. There were confrontations, but nothing worth discussing today, he said.

"It had its rougher moments. But most of prison is boring and monotonous and stupid and disrespectful," he said. "That's not me being some kind of elitist. Everyone inside complains about it."

Knowing he was innocent added "a little bit of emotional baggage," Morton said. "But I was no different than a guy who was completely guilty, because prison is prison. ... You go through the same stuff, deal with the same people.

"I'm not saying I didn't feel crushed. In the early days when I was new, I admit there were some nights," he said, his voice trailing off. "I heard some guys weeping, almost howling like dogs. I never had that. I wasn't that uncontrollably devastated. But there were nights when I silently wept.

"When everything has been taken away, or what you think is everything at that point, it can feel awfully brutal."

"Morton describes painful fight for freedom, how he started anew," is the conclusion.

Williamson County District Attorney John Bradley, at the time convinced of Morton's guilt, opposed his bid for DNA tests on evidence that had been preserved, including a bloody bandanna discovered behind the Mortons' house.

It would take an appeals court order in 2010 to move the testing forward.

And:

Morton became eligible for parole in 2007, 20 years after entering prison, and again in 2010. Both times Bradley opposed his release, and both times Morton was denied.

In prison, Morton said, everybody knows that the key to parole is to admit your guilt and show remorse.

A 2009 letter from Bradley to the Parole Board drove the point home. "Ask Michael Morton if he has accepted responsibility for the murder of his wife by mercilessly beating her to death. If he tells you that he now acknowledges he committed that crime, please notify me and I will reconsider my opposition to his parole," Bradley wrote.

But Morton said making up a confession was never an option. Almost everything of value had been taken away from him. All that remained, he said, was his innocence.

"I was not going to lie to get out," he said.

Earlier coverage of Michael Morton's exoneration and what has followed begins with this post.

In This Timeless Time

In This Timeless Time: Living and Dying on Death Row in America is the title of a new book by Bruce Jackson and Diane Christian.  It's published by the University of North Carolina Press.  The book is also available from Amazon.

In this stark and powerful book, Bruce Jackson and Diane Christian explore life on Death Row in Texas and in other states, as well as the convoluted and arbitrary judicial processes that populate all Death Rows. They document the capriciousness of capital punishment and capture the day-to-day experiences of Death Row inmates in the official "nonperiod" between sentencing and execution.

In the first section, "Pictures," ninety-two photographs taken during their fieldwork for the book and documentary film Death Row illustrate life on cell block J in Ellis Unit of the Texas Department of Corrections. The second section, "Words," further reveals the world of Death Row prisoners and offers an unflinching commentary on the judicial system and the fates of the men they met on the Row. The third section, "Working," addresses profound moral and ethical issues the authors have encountered throughout their careers documenting the Row.

Included is a DVD of Jackson and Christian's 1979 documentary film, "Death Row."

Publishers Weekly provides a review of In This Timeless Time. 

In this comprehensive, well-crafted book, published in association with the Center for Documentary Studies at Duke University, SUNY-Buffalo professors Jackson and Christian build upon the photographs and interviews from death row in Texas that yielded their 1979 book and documentary Death Row (DVD included). Here, photos and text reveal inmate life, discuss capital punishment, and share the fate of each man: execution, a commuted sentence, parole, or after more than two decades, an innocent verdict. Organized into three sections (“Pictures,” “Words,” “Working”), 113 duotone photos form the bulk of the book: Jackson’s original black-and-white images from the 1970s show mealtime, exercise rituals, and inmates socializing in the dayroom and passing time in their cells, with detailed captions about the procedures and inmates’ lives.

The University at Buffalo, where Jackson and Christian teach, has issued a press release, "After 32 Years, Buffalo Authors Revisit the Tragic World of Death Row."  Here's an excerpt:

In its pages, Jackson and Christian also discuss how they completed the book, the access problems they encountered more recently with the Texas Department of Criminal Justice and their stance on ethical issues and studies related to the death penalty, prison reform and relevant Supreme Court decisions.

The couple describes the treatment of the prisoners as "remedial torture." They recount dehumanizing conditions death row inmates were -- and often are -- forced to endure, in a state proud of the number of people it executes every year. The replacement of the cells' glass windows with frosted glass illuminates this treatment. It not only prevented prisoners from seeing the outside world, but caused the development of chronic optical myopia because they could not exercise their distance vision

Jackson's and Christian's work has been influential in many quarters. An investigating officer in the notorious Gary Gilmore case was pleased to witness his execution, for instance, but changed his mind after seeing the film "Death Row." The late French President Francois Mitterand used it to explain and justify his abolition of the death penalty in France, and it has been praised by many other scholars, legislators and political activists for decades.

Related posts are in the books and documentary indexes.

Who Is Over the Top?

The Guardian has just posted, "Texas accuses anti-death penalty charity Reprieve of fomenting violence," by  Ed Pilkington.  Here's an extended excerpt:

Texas, America's most prolific practitioner of the death penalty, has launched an extraordinary attack on the international anti-death penalty charity Reprieve, accusing it of intimidating and harassing drug companies and likening the group to violent prison gangs responsible for the eruption of prison riots.

The attack comes from the Texas department of criminal justice, TDCJ, which each year carries out the lion's share of executions in America. In a letter to the attorney general of Texas, Greg Abbott, the TDCJ accuses Reprieve of "intimidation and commercial harassment" of manufacturers of medical drugs used in lethal injections.

In astonishingly vivid language, the TDCJ says that Reprieve, which is headquartered in London, "crosses the line from social activists dedicated to their cause to authoritarian ideologues who menace and harass private citizens who decline to submit to Reprieve's opinion on the morality of capital punishment by lethal injection".

Reprieve's tactics present the risk, the Texas prison service claims, of violence. "It is not a question of if but when Reprieve's unrestrained harassment will escalate into violence against a supplier."

In the most colourful accusation, the TDCJ compares the human rights organisation to gangs operating in Texas prisons. It writes that Reprieve's methods "present classic, hallmark practices comparable to practices by gangs incarcerated in the TDCJ who intimidate and coerce rival gang members and which have erupted into prison riots".

The Texas letter takes the war of words between US states still practising executions and anti-death penalty campaigners to a new level. Reprieve has long had fraught relations with states practising capital punishment in the US, but never before has it been accused of fomenting violence.

Maya Foa, Reprieve's specialist campaigner on lethal injection, said the accusation was absurd. "Pharmaceutical manufacturers have been objecting to the use of medicines in executions since the lethal injection was invented – Reprieve didn't create these ethical scruples! And far from harassing them, Reprieve defends these companies and their ideals and we have excellent relationships with them.

And:

Texas makes its assault on Reprieve in a 15-page brief that it composed in response to a request for information from the Guardian relating to the quanitity of anaesthetic that the prison service had left in its supplies. The pool of anaesthetic – the first drug used in a cocktail of three chemicals that makes up the lethal injection – has been running low as a result of boycotts in Europe and other countries.

In its brief, the TDCJ makes a case for withholding the information requested by the Guardian on security grounds. It says that to release information on drug stocks would help Reprieve identify the source of the medicines and that in turn would create "a substantial risk of physical harm to the supplier".

The article notes that pharmaceutical companies have repeatedly asked departments of corrections to not use their drugs in lethal injection executions.

Earlier coverage of Reprieve begins at the link.  Reprieve was was also involved with calculations on the diminishing stock of Texas' lethal injection drugs. 

Related posts are in the international and lethal injection indexes.

CBS News '48 Hours" to Revisit Anthony Graves' Exoneration

This Saturday's edition of CBS News "48 Hours" will revisit the wrongful conviction and exoneration of Anthony Graves.  A preview of this updated telling of "Grave Injustice," is available from CBS News.  The program is scheduled to air at 10:00 pm (EDT), 9:00 pm (CDT); check local listings for your CBS affilliate.

You can also view CBS News' press release, announcing the program.

“If it hadn't been for 48 Hours Mystery, I don't think I would be getting my compensation,” said Anthony Graves following the announcement that he would be awarded restitution after nearly 20 years of wrongful incarceration.

On April 23, 2011, 48 HOURS MYSTERY correspondent Richard Schlesinger reported the story, “Grave Injustice,” of Anthony Graves, a Texas man who walked free in October 2010 when it was proven that he had been wrongfully convicted in 1994 on six counts of capital murder. Formerly known as Inmate #999127, Graves was on death row when a group of journalism students from the University of St. Thomas in Houston began looking at his case. After four years of investigating, they uncovered the truth: Anthony Graves was an innocent man.  

Despite gaining his freedom and good name back, Graves did not receive complete justice. According to a 2009 Texas law, those exonerated can receive $80,000 for every year they were imprisoned; however, because two words – “actual innocence” – were missing from Graves’ prison release papers, Texas refused to compensate him.

“They (48 HOURS MYSTERY) laid out my case for the whole world to see and as a result it made Texas do the right thing. I owe it all to 48 Hours, for first taking an interest in my case, seeing the injustice for what it was, and then showing the rest of the world,” said Graves.

Earlier coverage of Anthony Graves' wrongful conviction and exoneration begins at the link.  All coverage is in the Anthony Graves index.  Additional coverage of Texas compensation for those wrongfully incarcerated is also available.

A Craig Watkins Interview

At the Dallas Morning News Opinion blog, Rodger Jones posts, "Craig Watkins on Craig Watkins," highlighting a KXAS-TV interview with the Dallas County District Attorney.

I recommend watching a very good interview that Channel 5 reporter Randy McIlwain did with District Attorney Craig Watkins this week. It was after Watkins went to Huntsville to witness the execution of Texas Seven ringleader George Rivas on Wednesday.

The interview lasts more than 30 minutes, and it's worth a listen if you care about justice, politics, history, the morality of the death penalty - you know, important things.

It's also a powerful interview on an emotional level. Watkins describes the other thing he went to Huntsville to do: find the grave of his great-grandfather, who was executed for a rape-murder-robbery in 1932. He found that headstone in the prison cemetery.

Watkins was in Huntsville to witness last week's execution of George Rivas. 

The complete Watkins interview is available through KXAS-TV, and is embedded in Jones' DMN post.

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

Raymond Bonner in the New York Times

The Sunday New York Times carries Raymond Bonner's OpEd, "When Innocence Isn’t Enough."  Here's the beginning of this must-read:

EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that can end in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

Coverage of Bonner's latest book, Anatomy of Injustice: A Murder Case Gone Wrong, begins in this earlier post.  Bonner's next author event is in Austin, on Wednesday, March 7 at Book People.  More book events are noted at Bonner's website.

From Philadelphia

Today's Philadelphia Inquirer reports, "Phila. courts increase pay for capital defense."  It's written by Joseph A. Slobodzian.

Moving to reduce a shortage of lawyers qualified and willing to take court appointments to defend the poor in death-penalty cases, the Philadelphia courts have dramatically increased lawyers' fees and temporarily suspended the work of a new committee that screens capital-case attorneys.

An order by Common Pleas Court Judge John W. Herron, administrative judge of the trial division, increases the flat rate paid to capital-case counsel from the current $2,000 to $10,000 for trial lawyers and the fee paid to penalty-phase cocounsel from $1,700 to $7,500.

At the same time, Herron suspended the work of a new screening committee for the rest of the year. Herron noted that the committee has approved only 12 Philadelphia defense lawyers after reviewing their applications.

Last year, an Inquirer report found that more than 125 capital trials in Pennsylvania - 69 from Philadelphia - were reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

Lawyers quoted in the story cited low pay for court-appointed lawyers as a major factor.

While not criticizing the so-called HAS (Homicide Appointment System) Committee, Herron wrote Monday that he had to respond to a growing backlog of homicide cases due to a lack of qualified lawyers for court appointments.

Earlier coverage of Philadelphia capital indigent defense issues begins at the link.

The Stephen Barbee Case in Tarrant County

The post-convictin hearing was ordered by the Court of Criminal Appeals.  Here are links to several articles on the hearing, which is continuing today.

"Consultant says convicted killer's attorneys pressured him to plead guilty," is by Deanna Boyd for the Fort Worth Star-Telegram.

A mitigation specialist hired by defense attorneys in Stephen Barbee's 2006 capital murder trial testified Wednesday that the attorneys frequently pressured Barbee to plead guilty and didn't explore or present some evidence that she believes could have helped the Death Row inmate.

Amanda Maxwell testified that Barbee's trial attorneys, Bill Ray and Tim Moore, failed to delve more into what she said were mitigating circumstances in the case, including several head injuries Barbee had suffered throughout his life and his abuse of hydrocodone for one of those head injuries.

In February 2006, Barbee was convicted of capital murder and sentenced to lethal injection for the smothering deaths of Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son, Jayden.

Prosecutors said Barbee killed Underwood because he believed that she was pregnant with his child (DNA tests later proved he was not the father) and wanted to keep their relationship from his wife.

Maxwell was the first to testify in a hearing before state District Judge Louis Sturns over allegations by Barbee's appellate attorneys that important information was withheld from Barbee's capital murder trial due to a "secret deal" between then-state District Judge Bob Gill and Ray, Barbee's lead attorney.

Barbee's appellate attorney, A. Richard Ellis of California, has said federal court testimony by Ray in connection with an unrelated case -- made public in 2010 in an article by The Associated Press -- revealed that Gill had negotiated plea deals in probation revocation cases, many of which he had appointed Ray to handle, to move cases more quickly though his docket.

Ellis says that because of that conflict of interest with the judge, Ray failed to provide effective counsel and deprived Barbee of a fair trial.

"Defense attorney answers allegation in death case," is the latest AP filing on the hearing.  It's via KTRK-TV.

The lawyer court-appointed to lead Stephen Barbee's defense at his double-murder trial six years ago is to testify to allegations that he and the trial judge had a "secret deal" to move cases quickly through the judge's court.

Former State District Judge Bob Gill testified in state court that he believed the attorneys who represented Stephen Barbee, sentenced to die foJudge Bob Gillr killing his pregnant girlfriend and her 7-year-old son, were effective despite having "a difficult case to try."

Barbee is seeking a new trial, claiming he received ineffective counsel because his lead attorney, William H. "Bill" Ray, had a "secret deal" with Gill, who retired from the bench in 2007, to make cases move quickly in the judge's court.

Wednesday was the first day of a two-day hearing in front of Judge Louis Sturns, who succeeded Gill on the bench. Sturns will recommend to the Texas Court of Criminal Appeals whether a new trial is warranted.

Gill, now an assistant district attorney in Tarrant County, acknowledged he had an "arrangement" with Ray to let the attorney handle most of the probation revocation cases involving indigent defendants in the judge's court. But he described it as a matter of picking the most available attorney.

"Mr. Ray came around the courthouse and made himself available for court on Fridays, which is when I handled most of my probation revocation hearings," Gill testified.

An earlier AP posts, "Witness: Lawyers wanted guilty plea in death case," is also via KTRK-TV.

"Double-murder case returns to Fort Worth," by Dianna Hunt is an earlier Star-Telegram report.

State District Judge Louis Sturns will decide whether Death Row inmate Stephen Barbee should get a new trial in the killing of his ex-girlfriend and her 7-year-old son based on his appellate attorney's argument that the trial judge and Barbee's trial attorney had a "secret deal."

Sturns has set a hearing to begin Wednesday to consider evidence that Barbee's lead trial attorney, Bill Ray of Fort Worth, had an ongoing agreement with former state District Judge Bob Gill that caused important information to be withheld from Barbee's capital murder trial.

In court filings, Barbee contends that he was denied due process and a fair trial because his attorneys "had a conflict of interest that precluded them from effectively representing Barbee at trial."

Barbee's appellate attorney, A. Richard Ellis of California, said Monday that important evidence was not presented at the trial, which lasted less than three days.

"Circumstantially there was a very strong suggestion of conflict of interest," Ellis said.

Ray emphatically denied the contention.

And:

The Texas Court of Criminal Appeals -- the state's highest court in criminal matters -- ordered the trial court to consider Barbee's appeal, and Sturns set the special hearing to hear evidence.

The allegation of a secret deal stems from an unrelated case in which Ray represented a woman facing revocation of her probation. During an appeal in federal court, Ray testified that Gill had a policy of personally handling plea bargaining with defendants facing probation revocation, and that the sentence was higher if the defendant rejected the plea offer, according to court documents.

It also notes:

In an article about Gill's handling of probation cases, Associated Press writer Danny Robbins reported in 2010 that Tarrant County records indicated that Ray had received more than $700,000 from 2001 to 2007 from appointments in Gill's court. That was 43 percent of his total earnings from court appointments, Robbins reported.

Ray and Gill have been subpoenaed to testify in the Barbee hearing, which is expected to continue for two days in Sturns' 213th state District Court.

The Los Angeles Times posted a preview of the hearing, "Texas death row inmate claims lawyer had 'secret deal' with judge," written by Molly Hennessy-Fiske, reporting from Houston.

A Texas death row inmate convicted of murdering his pregnant ex-girlfriend and her 7-year-old son in 2005 is seeking a new trial, alleging that his attorney had a "secret deal" with the judge to quickly dispose of his case.

Attorneys for Stephen Barbee, 44, plan to argue in a Fort Worth state court this week that his defense in the double murder case was tainted.

The proceeding, scheduled to begin Wednesday, was ordered by the Texas Court of Criminal Appeals after a 2010 Associated Press story showed that presiding Judge Robert Gill had negotiated plea deals in certain cases, many of which were handled by Barbee's court-appointed attorney, William H. "Bill" Ray.

Ray gave details about the plea deals, which expedited Gill's docket, during testimony in a 2009 federal court case that a judge subsequently sealed. The issue was kept quiet until the AP story ran.

The 2011 Court of Criminal Appeals order in Ex Parte Barbee is at the link.  Judge Sturns was recently appointed to hear the Court of Inquiry in the Morton exoneration.

More Advance Praise for Raymond Bonner's Book

Andrew Cohen posts, "The Book of the Century About the Death Penalty," at the Atlantic.  Here's the beginning:

If you want to better understand why America is slowing turning away from the death penalty, do yourself a favor and read this excerpt from Anatomy of Injustice by Raymond Bonner in the new issue of The Atlantic. The journalist, author, and Atlantic correspondent, has written a masterful book (to be released on February 22) about the application and excesses of state capital punishment regimes. It is as eloquent, important, and accessible an addition to legal scholarship as was Anthony Lewis' first masterpiece, Gideon's Trumpet, two generations ago.
It doesn't matter on which side of the death penalty gulf you reside. If you believe in capital punishment, you ought to read the book to better understand why 100 million or so of your neighbors believe the system is arbitrary and capricious and beneath the dignity of a civilized nation. And if you are opposed to capital punishment, you ought to read the book to understand exactly how and why so many politicians and prosecutors are full of crap when they profess their confidence in the accuracy and reliability of convictions in capital cases.

Anatomy of Injustice focuses upon a single case in South Carolina, in which a black man named Edward Lee Elmore was thrice tried, convicted, and sentenced to death for the murder of an elderly white woman named Dorothy Ely Edwards. She was killed in 1982, and Elmore was first tried just a few months later. And yet, incredibly, just before Thanksgiving of this year, 30 years after the murder, the 4th U.S. Circuit Court of Appeals granted Elmore the right to his fourth new trial. He has been in prison all this time, often on death row.

"Having scrutinized volumes of records of Elmore's three trials and his state [post-conviction-relief] proceedings," the sharply-divided federal appeals court ruled on November 22 in a 194-page opinion, "we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards." In this sentence, we see an essential truth about the failure of capital punishment in America. It's disconcerting enough that the law fails to require the level of certainty that morality demands. What's worse is that even the lower standard goes unmet in a shocking number of capital cases.

Anatomy of Injustice: A Murder Case Gone Wrong, will be published by Knopf on February 21.  Earlier coverage of the book is at the link.  Bonner has established a Facebook page for Anatomy of Injustice, and he lists several author events at his website.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Raymond Bonner on the Death Penalty

The March 2012 issue of the Atlantic carries, "The Last Line of Defense: An unlikely crusader, Diana Holt wages a heroic, long-odds battle against the death penalty."  It's written by Raymond Bonner and drawn from his latest book, Anatomy of Injustice: A Murder Case Gone Wrong, to be published by Knopf on February 21.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Author events are currently scheduled for;

Feb 28 - Cambridge/Boston, MA - Harvard JFK School
Mar 1 - Washington, DC - Politics & Prose
Mar 5 - Austin, TX - 5604 Manor
Mar 15 - Berkeley, CA - UC Berkeley

I'll add more as they become available.

Here's the beginning of the Atlantic excerpt:

In our criminal-justice system, once a person has been convicted, no matter how shaky the conviction, the presumption of innocence disappears. The defendant is assumed to have had a fair trial. New evidence, even enough to sow a field of doubt, does not necessarily entitle a defendant, not even one on death row, to a new trial. The remarkable defense attorney Diana Holt learned these lessons the hard way after she took on the case of Richard Charles Johnson, in October of 1999.

Holt, then 41, had worked as an attorney at the Center for Capital Litigation, in South Carolina, a nonprofit that represented prisoners on death row. Blond, blue-eyed, physically slight, and intense, Holt had begun working at the center a few years earlier, while still in law school. Having overcome great hardships in her own life, she had acquired a singular reputation as somebody who would work indefatigably to save the lives of the condemned—which is why her former mentor at the center, John Blume, asked her to help with the Johnson case. She would work on it for the next three years.

In the past year, Bonner wrote several articles on lethal injection issues.  Related posts are in the books index.

Idaho Changes Execution Protocol

"Changes To Idaho’s Next Execution," is the Boise State Public Radio report by Scott Ki.

Idaho Department of Correction officials have made some changes to how they handle executions.  This comes nearly three months after the state executed convicted murderer Paul Ezra Rhoades.

In the months since Rhoades’ execution, the Idaho Department of Correction analyzed the 34 page document that details each step in the process.  It’s now 35 pages long.  Brent Reinke directs the Department.  He says the biggest change now allows a single drug cocktail for lethal injection.

Brent Reinke:  “So we have two, three-drug protocols and two, single drug protocols.”

That wasn’t the case when Rhoades was executed.  There were only two, three drug cocktails as options.  Attorneys for Rhoades argued that a three drug combination could have left him conscious and in pain when administered.  A federal judge rejected that argument.  Reinke says the Department added single drug options because of availability of chemicals, not because of the legal challenge.  Other changes are administrative.

"Idaho makes changes to execution procedure," by Jamie Grey for Northwest Cable Network.

Though the execution Standard Operating Procedure, or SOP, was considered successful, the DOC has made changes with the help of attorneys and people from the execution team.

"I wouldn't say they [the procedures] were necessarily incorrect or wrong, but it was a challenge for us," Reinke said.

The subsequent changes are mostly to staffing, such as dividing up the warden's duties and combining the roles of medical and injection teams. Media witnesses will also be chosen a week prior to an execution, rather than the day of.

The new procedure also addresses a sometimes controversial point in lethal injections: the three-drug protocol that was used in Rhoades' execution. Now, there are other methods available.

"We've gone from two options to four options," Reinke said. "There's two three-drug options and two single-drug options. We've taken a look at some of our sister states and a number of states have gone to a single-drug option because of availability."

The three-drug protocol involves an anesthetic, a paralytic and a drug that causes cardiac arrest.  The single-drug protocol only involves the use of an anesthetic, which in a high dose will cause death.

"Changes for state execution policy and procedures," by Erik Avanier doe KBOI-TV.

Under the improved operating procedure, the warden will no longer be solely in charge of every aspect of the execution.

"There's just too many areas around the facility for that individual to take care of in this kind of setting so we have an administrative team that can be spread out a little more," Reinke said.

The administrative team will handle most of the logistics surrounding the execution while the warden continues to focus on the day-to-day operations.

Members of the media are usually selected as witnesses of the execution but in the past, the selection occurred on the day of the event. Under the new policy, members of the media will be selected seven day in advance.

"That will give us some time to work with those media witnesses prior to them representing the public in that event," Reinke said.

The new policy also allows additional witnesses related to the case to view the execution.

And:

During past executions, the team responsible for administering the lethal injection was labeled the injection team but Reinke said their title has changed to medical team.

There are other ideas Reinke would like to put in place regarding execution procedures and policies but KBOI was told those specific recommendations would require approval from state law makers.

Related posts are in the lethal injection index.

Andrew Cohen on An Ohio Arson Case

Andrew Cohen posts, "Is Ohio Keeping Another Innocent Man on Death Row?" at the Atlantic.  It's an indepth examination of an arson case with a list of problems.  Here's the beginning of this must-read:

Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw  a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

There are several legitimate reasons why Noling deserves a new trial, especially in a state with a long history of wrongful capital convictions. There are a lot of flawed capital convictions all over the country -- pick a state, any state, where the death penalty is still a priority for prosecutors and you'll find such a case. But a closer look at this case reveals virtually all of the system's main flaws at one time and in one place. The only thing missing from the story is racial bias, which likely would have only made things worse. (As of September 30, 2011, there were 148 inmates on Ohio's death row, 65 of them white males like Noling.)

And:

Congress harshly tipped the balance against defendants like Noling when it passed the Anti-Terrorism and Effective Death Penalty Act in 1996. "Effective," it turns out, meant rejecting meaningful appeals like Noling's on procedural grounds. For example, without the AEDPA and the way it has been interpreted by the Supreme Court, the 6th Circuit last June might have given Noling the new trial he's been asking for. So is the Clinton-era AEDPA constitutional when applied in cases like this? How can that be? 

Ohio, Texas, Louisiana, it doesn't matter: when it comes to states defending soiled capital convictions, the arguments are always the same. Serious prosecutorial errors are excused. Hypothetical jurors, the ones from whom material exculpatory evidence was hidden at trial, are assumed to vote guilty. Witnesses who recant are said to be lying now, not at trial. The impact of poor defense work is minimized. Ohio thinks it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?

Thomson Reuters notes the Cohen post in, "An Ohio prisoner could rally death penalty opponents,"  by Carlyn Kolker.

This year's cause célèbre, says The Atlantic's Andrew Cohen, should be Tyrone Noling, an Ohio man who was convicted of murder and who is one of 148 inmantes on death row in that state. "A closer look at this case reveals virtually all of the [criminal justice] system's main flaws at one time and in one place," writes Cohen. Noling's attorneys last week petitioned the U.S. Supreme Court to hear their case challenging his sentence. Here are some of the flaws that Cohen says exist in Ohio's capital case against Noling:

-All of the major witnesses who testified in Noling's case have since recanted, says Cohen.

-Prosecutors, 13 years after Noling's original trial, handed over exculpatory evidence.

-There is a lack of DNA evidence linking Noling to the crime.

-The state of Ohio will not agree to a new trial, despite Nolting's claims that he has discovered new evidence.

Cohen sums up the case this way: "Ohio things it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?"

Another Ohio capital arson case had a February 22nd execution date.  It has been cancelled due to problems with Ohio's lethal injection protocol; earlier coverage of the two stories at the links.

You can also find more on the site from Andrew Cohen.

CCA Overturns Murder Conviction - Journalists Faulted Forensics

A Texas case examined in a Pro Publica/PBS Frontline report on autopsies and forensics has been overturned by the Texas Court of Criminal Appeals.  The Court's ruling in Ex Parte Lopez is available in Adobe .pdf format.

Pro Publica reports, "Texas Court Voids Conviction in Child Death Case."  It's by by A.C. Thompson.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

"Judge Tosses Conviction Of Texas Man Accused Of Sexually Assaulting Infant," is the NPR report by Joseph Shapiro.

The NPR, Frontline and ProPublica investigation found nearly two dozen cases in the United States and Canada where people were convicted of killing children, but were later cleared when it turned out the accusations were based on flawed or biased work by forensic pathologists and other medical professionals.

Lopez's current lawyers argue that his case should get counted as one of those false convictions. They say Isis Vas died, not because she was beaten and sexually assaulted, but because of an undetected blood disorder that can create bruises and bleeding that mimic child abuse. But no witnesses were called to make that case at the original trial.

On Wednesday, the Texas Court of Criminal Appeals, the state's highest court for criminal cases, ruled that Lopez had received "deficient representation" and that had such witnesses testified on behalf of Lopez, there was a "reasonable probability the jury would not have convicted him."

And:

There is an added risk for Lopez in a new trial. Originally, Lopez was indicted on child sexual assault and murder charges. Prosecutors chose to go to trial on the sexual assault case first, and got a conviction. Jurors only learned that the child had died when it was time for them to determine Lopez's prison sentence. A new trial could also include the murder charge, and prosecutors could seek the death penalty.

Lopez's attorneys are ready to present medical experts who say there was evidence that Isis Vas suffered from a series of problems that suggested she had a rare blood disorder. They will argue that this is consistent with what Lopez told paramedics, doctors and the hospital: That the baby had been sick, lethargic and eaten little from the time her mother brought her to the Lopez house three days earlier.

The Amarillo Globe-News reports, "Sims: Will retry sex assault case."  It's by Bobby Cervantes.

Potter County’s chief prosecutor said Thursday he will retry an Amarillo man whose sexual assault conviction was overturned Wednesday.

47th District Attorney Randall Sims said Ernie Lopez, 41, will be brought back to Potter County within the month to face the 2001 indictment for aggravated sexual assault of a child.

“He’s coming back on the exact charge,” he said. “The case is at the same place any case would be right after it’s been indicted by the grand jury.”

And:

A grand jury in 2001 also indicted Lopez on a capital murder charge, which prosecutors decided to drop in lieu of the sexual assault charge.

Sims did not comment on whether he would pursue additional charges in the case.

“Other than that, I can’t tell you what’s going to transpire when he comes back,” he said

The Pro Publica series on questionalbe forensics is, "Post Mortem: Death Investigation in America."  The PBS Frontline report is also available.  Additional coverage of the series is available.  Related posts are in the forensics index.

Eroy Brown

Mike Ward writes, "Brown case highlights reluctance to parole longtime offenders," for today's Austin American-Statesman.  Here's an extended excerpt from this must-read.

Eroy Brown, whose acquittal on murder charges involving the deaths of a prison warden and a farm manager in the 1980s shook the Lone Star corrections system to its roots, is coming up for parole again.

Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars. The graying, almost 60-year-old is serving time in a South Carolina prison because a federal judge thought his safety could not be guaranteed in a Texas lockup. If he's granted parole, he would be sent to a pre-release program in California.

If he's denied parole, he would be released within five years without any supervision under controversial early release policies enacted in the 1970s to ease prison crowding in Texas.

"He got more publicity for (the acquittal) than Christ on the cross," said Houston attorney Bill Habern, who was Brown's lawyer on the murder charges. "The (prison) system still to this day doesn't believe he should have been acquitted. ... What is probably going to happen is called getting even."

Brown's case highlights a long-standing issue with Texas' parole system: a reluctance to parole longtime offenders with high-profile cases, even those who soon will be freed anyway, and those with serious and costly health problems.

Brown is earning liberal credits for good behavior on his sentence, which he would finish by 2017, according to current calculations. At that time, he would be released free and clear, with no supervision.

Brown is among just 4,208 of Texas' 156,000 convicts who are still accruing such credits under old laws, a number that dwindles each year as more are paroled or released.

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden, Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

And:

Habern said Brown would be better off on supervision after his release. Sister Teresa Groth said Tuesday that Brown has been accepted into the Partnership for Re-Entry Program, an initiative that caters mostly to "lifers" like Brown. Since it opened in 2002, the program, which is affiliated with the Roman Catholic Archdiocese of Los Angeles, has a 100 percent success rate for participants not going back to prison, Groth said.

"He'll be going into a program where he'll be supervised. He won't be coming back to Texas. He'll be in an area where he has relatives and some friends. What could be better than that?" Habern said.

"It seems like that would be much better than squeezing another three or four years out of him and then dumping him out on a street in South Carolina."

Ward's article notes - and I want to highlight - The Trials of Eroy Brown: The murder case that shook the Texas prison system written by Michael Berryhill.  It was published last year by UT Press and is available at the link.  Berryhill is chair of the journalism department at Texas Southern University in Houston.

In November, the Texas Observer published an excerpt from the book.  This is from Berryhill's introduction to the excerpt:

Last June, an administrator at the federal prison in Salters, South Carolina, must have been shocked when he opened the transfer file of a Texas inmate named Eroy Brown. For the past 26 years Brown has been serving a 90-year sentence in various federal prisons. He was sentenced for holding up a Waco convenience store in 1984. What was shocking was not the robbery, which netted Brown and two accomplices $12 and a couple of candy bars, but what happened three years before the robbery. In 1981, Eroy Brown drowned the warden of a Texas prison face down in a drainage ditch and shot and killed a prison farm manager in a struggle for control of the warden’s pistol. Federal prison officials immediately locked their new prisoner in solitary confinement as a dangerous murderer and a possible threat to prison officers.

It is unlikely that the Texas Board of Pardons and Paroles placed the full story of those killings in Brown’s file, for that would have included the fact that Brown was acquitted of those killings by reason of self-defense. The full story is that in 1982, 23 of 24 jurors declared Brown innocent of murder in the drowning of Warden Wallace Pack. In 1984, another jury acquitted him of murdering farm manager Billy Max Moore. And the fuller story is that Brown has been kept in federal custody for a state crime because in 1984 Texas agreed to a civil rights settlement that keeps him from ever serving time in the Texas prison system—it might be too dangerous for him.

Brown’s parole attorney, Bill Habern, one of the lawyers who helped defend Brown’s murder charge, wrote a letter to the federal warden explaining that Brown was not the dangerous murderer he might seem to be, but the victim of two aggressive Texas prison officials. Habern thought Brown deserved the chance to live in the general prison population and hold a job.

If Brown were reviewed for parole on the basis of the crimes for which he was convicted, he would likely be out by now. Brown has served 26 years for a $12 robbery.

Related posts are in the Texas Board of Pardons & Paroles index.

Texas Life Row

"Nearly 400 capital murder convicts get life without parole," is the title of Lise Olsen's report in today's Houston Chronicle.  Here's an extended excerpt:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

For the first time, it gave jurors and prosecutors a non-death sentence that guaranteed someone convicted of killing a child, killing multiple victims, slaying a police officer or committing another capital crime could not be released on parole.

In all, 110 Harris County offenders have been sentenced to life without parole since the law took effect, compared with 11 death sentences.

"Harris County is a tough law and order county on the really bad actors. That hasn't changed," said First Assistant District Attorney James Leitner.

The change has led to fewer death sentences in Texas and nationwide.

Fifty-one people were sentenced to life without parole in Dallas County. Tarrant County had 26; Bexar County had 22.

Texas offenders convicted of capital murder were six times more often sentenced to life without parole than to death: 66 people got death sentences compared with the 398 lifers. The life without parole law has been used in about one third of all Texas counties at least once, the Chronicle's analysis of state prison records shows.

To date, 116 of Texas' 477 executions have originated from Harris County; 24%.  In the 2010 Census, Harris County accounted for 16% of the state's population.

Related posts are in the sentencing index.

More on Harris County Death Sentences

"Study Finds Racial Pattern In Texas Death Penalty Sentencing," from Black Voices News is at Huffington Post.

The connection between race and capital punishment has been a hot topic this year, but a new study has found a shocking pattern in the way one Texas county sentences people to die.

Of the last 13 men that have been sentenced to death in Harris County, 12 of them are black, according to an analysis of prison and prosecution records by the Houston Chronicle. The discovery has prompted some local lawyers to ask for an investigation and calls for more debate around the administration of capital punishment.

"The more the defendant looks like you the harder it is to kill him — human nature being what it is," said Robert Murrow, one of the county's capital defense attorneys. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

The role of race in death penalty sentencing became a major issue in the county when the U.S. Supreme Court halted the execution of Duane Buck, after reviewing the testimony of a psychologist who said during the trial that black people were more likely to commit violence. Buck's appeal of his pending execution was rejected last week. Although the inmate's supporters pleaded with Harris County District Attorney Patricia Lykos, she told The Chronicle she has not yet made a decision.

"Before we take any action, we will carefully evaluate the arguments of Mr. Buck's lawyers and his supporters," she told the news source. "He will receive fair and thorough consideration of his claims."

Lise Olsen's enterprise reporting in the Houston Chronicle was noted yesterday.  Also, University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

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

Harris Death Penalties Show Racial Pattern

That's the title of Lise Olsen's report in today's Houston Chronicle.  It's subtitled, "12 of the last 13 men condemned in the county have been black."

The last white man to join death row from Harris County was a convicted serial killer in 2004. Since then, 12 of the last 13 men newly condemned to die have been black, a Houston Chronicle analysis of prison and prosecution records shows.

The latest death sentence was handed down in October to a Hispanic.

The role of race in capital punishment has emerged repeatedly this year in the unsuccessful appeals by Duane Buck, an African-American from Houston convicted in a double murder. His 1997 sentencing featured testimony from a former prison psychiatrist who claimed blacks are more dangerous than whites.

Harris County District Attorney Patricia Lykos, elected as a reformer, has overseen decisions about whether to seek the death penalty since 2009. Her staff says the decisions are "race neutral" and "fact based."

"Whether to seek the death penalty in a capital murder case is the most solemn and profound decision that I must make," Lykos told the Chronicle. "It is agonizing and gut-wrenching."

As part of its review of the last seven years of death sentences, the Chronicle also examined capital cases first prosecuted in the 1980s and 1990s that were reviewed again after successful death row appeals. Since November 2004, five men have been re-sentenced to death - three white, one black and one Hispanic.

Robert Morrow, one of the county's busiest capital defense attorneys, called the string of consecutive African-Americans who received new death sentences from 2004-2011 startling. He said those numbers alone should prompt additional research and debate - especially since relatively few participate in the local decision-making process as jurors or as prosecutors.

"The more the defendant looks like you the harder it is to kill him - human nature being what it is," Morrow said. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

And:

Harris County has a long history of aggressive prosecution of capital cases.

More than a third of the state's current 305 death row inmates came from Harris County. So did half of the 121 black inmates on death row, according to Texas Department of Criminal Justice data.

Blacks account for about half of recent murder arrests in Harris County. But they more often get charged with capital murder than whites or Hispanics, an analysis of more than 300 recent court cases by the Chronicle shows.

Related posts are in the race and geographic disparity indexes.  University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

More on Duane Buck's case at the link.

The Week Looks at the Death Penalty

The weekly magazine's current in-deptah briefing is, "The death penalty in decline."

How many countries have the death penalty?
Capital punishment laws are on the books in 91 countries, but only 23 of them carried out any executions last year. The U.S. executed 46 people last year, and 37 so far this year — more than any other country, except for the dictatorships of China, North Korea, Iran, and Yemen. In most parts of the modern world, the practice appears to be in steep decline. Since 1976, a total of 123 countries have effectively abolished the death penalty as a barbaric legacy of the past. All signs point to an unmistakable downward trend, says Mario Marazziti, co-founder of the World Coalition Against the Death Penalty. "There is worldwide growth of a new moral standard of decency and of respect for human rights," he said, "even the rights and lives of those who may have committed severe crimes."

Is that trend likely to extend to the U.S.?
It already has, in parts of the country. Illinois scrapped the death penalty in March of this year, and New Jersey did so in 2007. Lawmakers in California, Connecticut, Florida, Ohio, and Maryland introduced legislation this year to abolish the death penalty in those states. A recent Gallup poll found that the U.S. public's approval of the death penalty had dropped by 19 percentage points over the past 17 years, and currently stands at 61 percent, the lowest level since 1972. And although 34 states retain capital punishment laws, only 11 states executed prisoners last year, down from 20 in 1999. In effect, the death penalty has become a regional practice: Texas, Oklahoma, and Virginia alone account for more than half of U.S.

And:

A warden's change of heart
Three times in his 22-year career in Florida's corrections system, warden Ron McAndrew presided over an execution in the electric chair. Each time, his private doubts grew. During the third execution he witnessed, the condemned prisoner's head burst into flames, and McAndrew had to give the order to continue. "This is wrong," he decided. McAndrew, now a prison consultant, joined a small group of ex-wardens turned death penalty abolitionists, including Jeanne Woodford of San Quentin in California and Donald Cabana of Parchman Penitentiary in Mississippi. These wardens say that participating in the planned, cold-blooded killing of human beings has haunted them, and that it inflicts lasting trauma on corrections officers. "Many colleagues turned to drugs and alcohol from the pain of knowing a man died at their hands,'' McAndrew said. "The state dishonors us by putting us in this situation. This is premeditated, carefully thought-out ceremonial killing." He advocates "an alternative that doesn't lower us to the level of the killer: permanent imprisonment.''

Coverage of the statement on capital punishment by former wardens is at the link; Ron McAndrew has spoken of the trauma prison staff suffer.

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

And:

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

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

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

Is this shame what the GOP stands for these days?

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

All Willingham coverage is available through the Todd Willingham index.

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

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

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

Sam Bassett

Brandi Grissom conducts the Texas Tribune interview with Sam Bassett, former Chair of the Forensic Science Commission. It's a must-read.  There is video at the link.

The Tribune sat down with Bassett on Thursday to discuss his views on why the governor replaced him, his suspicions that political motivations were behind it, why he believes the commission had the authority to conduct its investigation, and why he argues it is critical for the Texas justice system that the commission finish what it started under his leadership.

And:

TT: When did you first hear from the governor's office about the Willingham investigation?

SB: The first contact I had with the governor’s office was in February of 2009. I was called by an appointment secretary of sorts and asked to come over and meet with the general counsel, and [I was told] that it was important and urgent. I couldn’t meet that day, but I arranged to meet the following day during the noon hour I think, and I went over and met with David Cabrales who was then his general counsel and Mary Anne Wiley who was an assistant general counsel in charge of criminal justice issues. And I had a meeting in their office in February. That was the first meeting I had with the staff.

TT: What did they want to talk about?

SB: I wasn’t told why they wanted me to come over. I wasn’t given any sort of agenda or anything that they wanted to discuss ahead of time. I just went; I didn’t know what they were going to talk about. We began the meeting by discussing the commission in general, and then we started talking specifically about the investigations we were doing. We seemed to get stuck on the Willingham investigation. As soon as I brought it up the tone of the meeting turned more hostile and Mr. Cabrales in particular was very adamant that that’s not the kind of investigation the commission was intended for, and I think Ms. Wiley at one point characterized our investigation as a waste of state money, and I was criticized for bringing in an expert from outside of Texas. I just tried to respond by saying I thought we had jurisdiction over the issue, but that I would go do some checking to make sure I wasn’t off. And I also told them briefly that I thought the commission wanted to go forward with the investigation since it was a unanimous vote to proceed with the investigation.

Earlier coverage of the FSC and the Willingham investigation begins with the preceding post.

The AG Opinon GA 866 is available in Adobe .pdf format.

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.

Bad Blood at the Dallas County Crime Lab

That's the title of Amanda Grimes report in the September issue of D Magazine.  It's subtitled, "Attention, all convicted rapists and murderers. Start filing your appeals now.."  Here's an excerpt from the introduction:

No matter how easy it looks on prime-time television, putting bad guys in jail isn’t as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot messier than that.

It’s so messy that, six years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.

The Dallas County Crime Lab—more formally called the Southwestern Institute of Forensic Sciences, or SWIFS—has yet to come under the commission’s microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas’ crime lab ever since. He is speaking openly for the first time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back five years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

“People’s liberties are at stake here,” Nulf says.

The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime lab is doing fine because it says it is.

Related posts are in the crime lab and forensics indexes.

Arizona and the DEA

The Arizona Republic reports, "E-mails detail FDA’s efforts to avoid responsibility regarding execution drug.  It's written by Michael Kiefer with additional reporting by JJ Hensley and Yvonne Wingett Sanchez.

In late September 2010, the Arizona Department of Corrections obtained the drug sodium thiopental from a small pharmaceutical supply house in London to carry out an execution by lethal injection in October.

The supply house was not registered with the U.S. Food and Drug Administration to export the drug, nor was the drug approved by FDA, but FDA officials in Phoenix nonetheless allowed the drug into the country.

Though the Corrections Department fought hard in court to keep the source of the drug secret, days before the October execution was carried out, The Arizona Republic learned that it had been imported from England.

From documents obtained this week from the FDA under the Freedom of Information Act, The Republic has learned that the revelation touched off inquiries into how the drug made it to Arizona and other states that had already been importing it from England and elsewhere.

Then, the FDA, the U.S. Drug Enforcement Administration and the U.S. Customs and Border Patrol all consulted with the White House to address questions about the legality of the imports and to justify bending the rules to get it to prisons for executions.

The documents released by the FDA offer an insider’s view of an agency struggling to keep itself from being dragged into the national legal debate over drugs used in state executions. Some of the released documents were supposed to be redacted to conceal certain details, but encryption failed.

Those e-mails show, among other things, that the FDA, with the approval of unnamed persons at the White House, shifted responsibility for allowing the drug’s import to Customs. That was done to avoid legal liability and to shield the FDA from any appearance of involvement with the death penalty.

One high-placed FDA official wrote on Nov. 2 that even if the agency issued a statement that it had not reviewed the drugs for “safety, efficacy or quality . . . it will insert FDA into the death-penalty cases because attorneys will try to use the statement as a means to open proceedings on the safety of the imported drugs.”

By the end of 2010, the FDA officially stated it would “continue to defer to law enforcement on all matters involving lethal injection,” and the e-mails show that it had deferred approval of the drug imports to Customs.

When asked for comment, Shelly Burgess, an FDA spokeswoman, said in an e-mail response, “This involves a matter in litigation and the agency does not comment on matters of litigation.”

Dale Baich of the Federal Public Defender’s Office in Phoenix, one of the plaintiffs in a lawsuit seeking to force the FDA to police the drug imports, also received the FDA documents whose redactions were visible. He said he declined to review them because of attorney ethical considerations.

“It is hard for me to say because I have not seen the documents,” Baich said. “But it appears that the FDA was concerned, as were we, about how Arizona obtained the drugs. We have alleged the drugs were illegally imported and the FDA fell short in its duty under the law. This information seems to support our claims.”

The American Civil Liberties Union of Northern California is also suing the FDA for information about thiopental imports, and this week’s FOIA release was partly spurred by the ACLU’s requests.

The FDA meanwhile, asked the federal public defender, the ACLU and The Republic to return the unredacted materials. The Republic declined.

And:

In late June, DEA officials told the Arizona Department of Corrections not to use thiopental in its execution of inmate Donald Beaty. A different drug was used instead and has been used since. It had almost been foretold in a March 16 memo from an FDA attorney.

“I am trying to test a hunch and that hunch is that between bad publicity, lawsuits, and product seizures, there will be less of a desire to bring this product in,” he wrote.

The most recent lethal injection coverage from Arizona begins at the link.  A direct jump to earlier coverage of Arizona's foreign sourced sodium thiopental is also available.  Related posts are in the lethal injection index.

A Special Viewing of Incendiary

The Texas Tribune, as part of its Tribune Live Events Series, is holding a special sneak preview of the new documentary film, Incendiary. 

StandDown readers can receive a discount on the ticket price.  Follow the link for more information and to order tickets.  You must use the code SpecialRate to receive the discount.

Here's more from the Trib:

Incendiary tells the true story of Cameron Todd Willingham — who was executed for the 1991 arson murder of his three children — and the scientific, legal and political firestorm that rages today.

The film’s directors, Joe Bailey Jr. and Steve Mims, will introduce the film.

After the screening, the Tribune’s ceo and editor-in-chief, Evan Smith, will host a conversation about the case and its implications for the death penalty in Texas with Sam Bassett, former chairman of the Texas Forensic Science Commission, former Gov. Mark White and the filmmakers. An additional panelist will be announced soon.

July 12, 2011
6 – 10 p.m.
Bob Bullock Texas State History Museum
A cocktail reception will take place from 6 - 7 p.m

$25 for tribune members, $35 for non-members
Click to become a member,

To purchase your ticket, please go to texastribune.org/events or email rsvp@texastribune.org.

The Texas Tribune is a non-partisan, non-profit media organization that promotes discourse on vital issues of statewide interest. Our mission is to improve civic engagement in Texas; to serve the journalism community as a source of innovation; and to build the next great public media brand in the United States.

As I've noted before, we are forturnate to have two nonprofit journalism outlet, the Texas Tribune and the Texas Observer, based in Austin.  Both have provided outstanding, enterprise reporting on criminal justice and death penalty issues.  I hope you will join me in supporting both of these outstanding organizations.

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.

The Executioner's Dilemma

That's the title of a lengthy examination of current lethal injection issues in the current issue of the Nation.  It's written by Liliana Segura.  Here'e the beginning of this must-read:

As Emmanuel Hammond lay strapped to a gurney with lethal drugs seeping into his veins, witnesses to his execution could tell something wasn't right. First he closed his eyes. But moments later, they fluttered open.

“Maybe two minutes in, his mouth kind of pulled way over to the side and then relaxed,” recalls his attorney, Sheri Johnson. It moved again, and he took two hard breaths. “To me it looked like pain,” Johnson says. “It looked like a grimace.” It was unlike other executions she'd witnessed, even one that took twenty minutes and required a second dose of lethal drugs. That inmate had closed his eyes and remained motionless a few seconds in. Hammond's execution “was like nothing I have ever seen before.”

A few months earlier, in September 2010, another Georgia prisoner, Brandon Rhode, had died in a similar way. His mother, who at her son's request did not attend his execution, was at a nearby truck stop waiting for it to be over. “When the pastor, Randy Loney, came back,” she told the Guardian, “he told me that Brandon had...maintained eye contact the whole time.” Pastor Loney's account was supported by press reports, which stated that Rhode's eyes stayed open until he was pronounced dead.

Hammond and Rhode were executed, like most death row prisoners, using a deadly combination of three drugs. The first, a barbiturate, is meant to sedate and anesthetize the inmate. The second, pancuronium bromide, causes paralysis. And the third, potassium chloride, stops the heart. For years, autopsies and witness descriptions have shown that the first drug, sodium thiopental, doesn't always work; some prisoners have been conscious, paralyzed and slowly suffocating until the end. Eye movement is one sign that things have gone wrong. Dr. Mark Heath, a physician and anesthesiologist who teaches at Columbia University Medical Center, wrote after Rhode's execution that “it is very unusual and surprising for a prisoner's eyes to remain open after the efficacious administration of thiopental.” The implications were grim. “There is no dispute that the asphyxiation caused by pancuronium [bromide] and the caustic burning sensation caused by potassium [chloride] would be agonizing in the absence of adequate anesthesia,” he wrote.

Concern that prisoners were being tortured to death was at the heart of the landmark 2008 Supreme Court case Baze v. Rees, which sought to decide whether lethal injection as carried out in Kentucky (and most death penalty states) was cruel and unusual punishment. The Court ruled that it was not, denying that lethal injections pose “a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.” But since then, states have strayed from the process upheld in Baze, partly because of a nationwide shortage of sodium thiopental. Some have sought out dubious new sources of the drug. Others, increasingly, are trading it in for a different one. Nowhere has the process been transparent—and some states appear to have broken federal laws in their rush to execute. As states have tinkered with their lethal formulas, in Georgia the result has been exactly the kind of tortuous executions the Supreme Court deemed unlikely when it upheld lethal injection.

Lawyers for Emmanuel Hammond knew he risked dying an excruciating death. After Rhode's botched execution, they filed an Open Records request to force the Georgia Department of Corrections (GDC) to disclose its source of sodium thiopental, while also requesting a stay of execution. Months later, on January 24, a Superior Court judge directed the GDC to release the records, but denied the stay, citing “no evidence” that the drugs were ineffective. The next day, just before midnight, Hammond was dead.

Global Post reports, "Europe fights the death penalty - with drugs."  It's written by Teri Schultz.

The Danish pharmaceutical company Lundbeck has an ethical dilemma.

It prides itself on making products that improve peoples’ lives. But one is helping put people to death.

Convicted killer Benny Joe Stevens was executed Tuesday in Mississippi’s Parchman State Penitentiary with a lethal injection of the anesthetic pentobarbital made by Lundbeck.

Denmark, like the rest of the European Union, is officially opposed to the death penalty. Lundbeck spokesman Anders Schroll said the company holds that position in the Danish headquarters as well as in its American office.

“This is a misuse of our product,” Schroll said. “We are in an ethical dilemma where we are opposed to the use of our medication for capital punishment while at the same time we want to make sure that patients who benefit from our medication get access to it.”

Pentobarbital is also used in the treatment of seizures in humans and in anesthesia and euthanasia of animals. Only Lundbeck still manufactures the drug for purchase in the United States. Schroll provided letters from doctors urging the company not to withdraw the 50 million doses of the drug sold each year.

For its part, Schroll said Lundbeck has sent letters to prisons in 11 states in recent months demanding they cease using pentobarbital as part of the lethal injection “cocktail” because “this is just not what we stand for” he said. The Danish foreign ministry has pursued the matter through its contacts. No prison has responded. In fact, more and more states are intending to use the drug, with Virginia, the secondmost-active death-penalty state, announcing a switch just this week, following the lead execution state, Texas, earlier this month.

Earlier lethal injection coverage from Georgia begins at the link.  Related posts are in the lethal injection index.

Cary Clack on the Anthony Graves Case & Journalism

The San Antonio Express-News columnist writes, "Praising the Fourth Estate," for today's paper.

Most people fortunate enough to find their way into journalism aren't Don (or Doña) Quixotes intent on a futile career of tilting at windmills.

The actual giants dotting landscapes are real problems, real issues and real systems that harm people and their communities.

These are the giants who inspire journalists to be knights-errant - people who seek to right wrongs while telling a story accurately and well.

One of the best journalists in the land, one of the great magazine writers in America, is Pamela Colloff of Texas Monthly. She may have written and may yet write better stories than her October 2010 cover story, "Innocence Lost," but she may never write a more important piece or one that had so swift and positive an impact.

The story is about the outrageous case of Anthony Graves, who in 1994 was convicted and sentenced to die for six horrific murders in the Central Texas town of Somerville. The victims were Bobbie Davis, her teenage daughter and four grandchildren, ages 9, 6, 5 and 4.

The only thing that incriminated Graves was the word of the man who was eventually executed for the murders and who, until his death, insisted that he'd lied about Graves' involvement. In 2006 the Fifth Circuit Court of Appeals overturned Graves' conviction, and he was removed from death row. A new trial was scheduled for last February in his hometown of Brenham.

To read Colloff's brilliantly reported 14,000 words is to be left with no doubt of Graves' innocence. Brenham's district attorney felt the same way and, within a month of the story's appearance, dropped all charges against Graves.

"Innocence Lost" and Colloff`s January 2011 follow-up, "Innocence Found," made Texas Monthly a finalist in the Public Interest category at Monday night's National Magazine Awards. Although The New Yorker won, Colloff's journalism served the public interest by exposing the incompetence and corruption that came perilously close to killing an innocent man and stole 18 years of his life.

And no award can compare with winning that man his freedom. Graves, for one, is grateful. Now 46, Graves, whose case became an international cause, is touring overseas talking about what happened to him.

Colloff's two Texas Monthly articles are noted at the links.

"Graves should not have to accept an IOU on justice," is the title of a Dallas Morning News editorial from last week.

The absurdity of Texas Attorney General Greg Abbott seizing a $250 check due to Anthony Graves underscores the point that the state’s best-known exoneree still has not received justice.

Graves, wrongfully convicted of capital murder in 1994, was released in October after 18 years of incarceration, most of it on death row. A special prosecutor handling a retrial of his case cited fabricated evidence and unethical pressure on witnesses by her predecessor when prosecutors asked a state court to drop all charges. The court readily agreed.

The obvious next step would have been for Graves to receive compensation from the state under the Timothy Cole Compensation Act, which allots $80,000 to wrongfully convicted people for every year of their life taken by the state. Instead, because the court did not use the words “actual innocence” in its release order, Comptroller Susan Combs said the state should not pay. Despite criticism from Gov. Rick Perry — and pretty much everyone else — the comptroller has stood by this decision, which has prompted a lawsuit.

Now, while all of this is going on, an automated system in the Texas attorney general’s office tagged Graves for owing back payments of child support for 1998-2002. Why was he behind? The fact that he was locked up on death row might have had something to do with it. The person most responsible for a lack of support for Graves’ children during that time is former Burleson County District Attorney Charles Sebesta, the man who almost single-handedly forced the Graves case through the courts using lies by the real killer to convict a man with a solid alibi. But we digress.

Graves agreed to have his paychecks garnisheed to pay the child support, but when the state seized an entire check from Prairie View A&M University for a speaking engagement, Graves called foul.

The attorney general’s office shrugged, telling the Houston Chronicle that there was nothing Abbott could do and that the automated system “regularly files wage withholding orders without any involvement from the executive office.” If only payments to exonerees were so automated!

This newspaper has credited Abbott for modernizing the state’s child support collection efforts. That modernization should include the application of basic common sense in a case such as this.

Houston Chronicle journalist Harvey Rice wrote the article, "Freed, but not from his bills: Ex-inmate, like Graves, has been dunned 21 years for child support owed during time he served for crime he didn't commit," for the May 7th paper.

Anthony Graves isn't the only Texan found innocent of capital murder to be billed by state officials for thousands of dollars in child support payments that built up while he was on death row.

The attorney general is seeking more than $4,000 in child support from Graves, but Clarence Brandley, who spent nearly 10 years on death row for a murder he didn't commit, has been paying child support nearly every year since he was released from prison in 1990.

In 30 years on the bench, "… No case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation (and) an investigation the outcome of which has been predetermined," state District Judge Perry Picket wrote about Brandley's case after a hearing in 1987.

To relieve Graves of the responsibility of child support payments, his attorneys are citing a 2007 law enacted because of Brandley's experience that compels the state to take over payments for time spent in prison by the unjustly convicted.

Brandley testified at the hearings, and his attorney, state Rep. Harold Dutton, D-Houston, introduced the legislation.

Dutton said the law came too late to help Brandley. Graves hasn't benefited because state Comptroller Susan Combs must verify his eligibility, but she says the order dismissing his murder charge didn't contain the legally required wording.

Twenty-one years after being freed from prison, Brandley, 59, is still being billed every month by the attorney general's office for his child support payments.

Brandley's paycheck was garnisheed every month until he lost his job in the economic downturn of 2008. He has since lost his car and house, forcing him to live with relatives. But the child support bills keep coming as the interest mounts. The last bill sought a $260 monthly payment on a balance of $12,683.

"I just tear them up," said Brandley, who has lost nearly everything he owns.

Earlier coverage of Graves' exoneration begins at the link.  All coverage is in the Anthony Graves index.  Related posts are in the journalism and  wrongful incarceration indexes.

The Mitigator

That's the title of Jeffrey Toobin's latest Annals of Law article in the current issue of the New Yorker.  It's subtitled, "A new way of looking at the death penalty."  Here'e the abstract:

ABSTRACT: ANNALS OF LAW about Danalynn Recer of the Gulf Region Advocacy Center and the use of mitigation in death-penalty cases.

The death penalty is withering. The change has been especially striking in Houston, which has long reigned as the death-penalty capital of the nation. If Harris County, which includes Houston and its nearby suburbs, were a state, it would trail only the rest of Texas for the number of people executed. But last year prosecutors in Harris County sent only two people to death row. Explanations for the change vary. Crime is down everywhere, and fewer murders means fewer potential death-penalty cases. Widely publicized exonerations of convicted prisoners, based on DNA evidence, may have given some jurors second thoughts about imposing the death penalty.

Another explanation for the decline in death sentences has been the increasing use of mitigation, a strategy that aims to tell the defendant’s life story. In Texas, the most prominent mitigation strategist is a lawyer named Danalynn Recer, the executive director of the Gulf Region Advocacy Center. Based in Houston, GRACE has represented defendants in death-penalty cases since 2002.

When the Supreme Court allowed executions to resume, in 1976, after a four-year hiatus, the Justices mandated a two-phase structure for death-penalty trials that has become familiar in subsequent decades. The “guilt phase” would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the “penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentenced to death. To make that determination, the Court sought to insure that jurors follow a rational process, rather than make a snap judgment about whether a defendant should live or die. This system, which became known as “guided discretion,” required jurors to weigh “aggravating factors” and “mitigating factors.”

Mitigating factors generally include a defendant’s mental illness, or the absence of a prior criminal record, but the Court also made sure that defendants could come up with their own mitigating factors to present to jurors. For a long time, defense lawyers didn’t know how to use this option to their advantage, and many largely ignored the penalty phase. In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist. Tells about Recer’s work with Clive Stafford Smith and discusses the use of mitigation in the death-penalty cases of Scott Thibodeaux and Juan Quintero.

Related posts are in the mitigation and sentencing indexes.

48 Hours on Anthony Graves' Exoneration

"Students help free wrongfully convicted man," is the title of the CBS News program, "48 Hours Mystery" segemtn on Anthony Graves.  Richard Schlesinger reports; the segment is produced by Lourdes Aguiar, Jenna Jackson and Jennifer Simpson Ashmawy.  In addition to the video, you can also read the transcript of the report.

Here's the beginning:

Before the early morning hours of Aug. 18, 1992, the police in Somerville, Texas found six bodies in the burned rubble of what used to be the Davis home.

"This was such a horrific event in that town and continues to be an event that really haunts the people of Somerville..." Texas Monthly reporter Pam Colloff told "48 Hours Mystery." "This was a family that almost everyone in town knew, liked, respected."

The victims: A grandmother, her daughter, and four grandchildren who were staying with them.

Colloff is still moved by the fact that the family never had a chance.

"There was Bobbie Davis, the grandmother to the four children who was bludgeoned and then stabbed to death," Colloff explained. "There was 16-year-old Nicole, her daughter, who was a high school student and athlete, who was bludgeoned and shot. And then there were the four grandchildren. They were 9-year-old Denitra, 6-year-old Brittany, 5-year-old Lea'Erin and 4-year-old Jason."

Glenda Rutledge is Lea'Erin and Brittany's mother.

"And my daughters, "Rutledge sighed, "were exotically beautiful. Beautiful...They were my legacy..." she continued in tears. "I was so looking forward to the chance to get it right... You know, to raise strong, sure, confident, successful women. You know, I wanted to do that so bad."

Rutledge's ex-husband, Keith Davis, lost almost his entire family that night.

"I mean these were little babies, and - and my mother, who... you know, who we adored, who was the center of our life," he said.

He was convinced it was a random crime.

"I just couldn't imagine someone from that area harming anyone in my family, 'cause we had never...we didn't have any enemies, we hadn't been in any trouble," said Davis.

Roy Rueter lived and worked not from the murders. Five days after the crimes, he remembers hearing there was a break in the case.

"I could hear the radio and the news would always come up..." he recalled. "And - it was early in the morning and they came up and they said, you know, arrest had been made...and they said uh - Anthony Charles Graves, age 27."

Anthony Graves was one of Rueter's best friends. Graves had worked for him for a while at his machine shop and the two became so close that Graves had even been in Rueter's wedding party.

"And it just it just freaked me out," he told "48 Hours Mystery" correspondent Richard Schlesinger. "But my immediate thing was, yeah, right. No way. And what - you know, what - what could possibly be going on here, you know?"

"You didn't believe it?" Schlesinger asked Rueter.

"Well of course not. Absolutely not."

Rueter knew Anthony Graves as a gentle man, a father of three. He was now hearing his friend was a murderer - of women and children.

"In my heart, my convictions were that's impossible," he said. "Anthony would never do that. Anthony would never - hurt or raise a hand to a woman. And especially not a child, especially the way he loved his children."

And when Graves was arrested, he seemed equally stunned.

Earlier coverage begins with a preview of the 48 Hours report.  All coverage is in the Anthony Graves index.

Democracy Now on the Denkowski Sanction

"'Dr. Death' Agrees to Stop Evaluating Mentally Disabled Texas Death Row Prisoners," is the Democracy Now segment, today.  You can watch the video at the link.

Last Friday, Texas reprimanded a psychologist who used what critics say were unscientific methods to examine at least 25 Texas death row prisoners for intellectual disabilities, two of whom were later executed. Dr. George Denkowski was the go-to psychologist for prosecutors who wanted to prove defendants were not mentally handicapped—and therefore eligible for the death penalty. Democracy Now! first covered Dr. Denkowksi in January 2010 in a video report by Renée Feltz that accompanied her story for The Texas Observer magazine. For an update, we’re joined by Texas Defender Service attorney, Kathryn Kase, and by Dr. Jerome Brown, the psychologist filed the complaint that ultimately resulted in Denkowksi’s agreement to stop evaluating people in criminal cases.

The participants include:

Kathryn Kase, attorney with the Texas Defender Service. Dr. George Denkowski said her client, Daniel Plata, was eligible for execution but a judge later said the evaluation was full of "fatal errors" and commuted Plata’s death sentence to life.

Dr. Jerome Brown, a clinical psychologist who worked as an expert for the defense on five death penalty cases in which Denkowski worked for the prosecution. He filed the complaint that ultimately led Denkowksi to stop evaluating people in criminal cases.

Renee Feltz, new Democracy Now! producer. Her exposé of Dr. Denkowski for The Texas Observer magazine, supported by The Investigative Fund at the Nation Institute, was a finalist for a 2010 Investigative Reporters and Editors Award.

Earlier coverage of the Denkowski sanction begins at the link.  Renee Feltz' earlier reporting, noted above,  is at the link.

Anthony Graves Exoneration Profiled by CBS 48 Hours

The CBS News program "48 Hours," will feature Anthony Graves' exoneration this Saturday, April 23.  The program normally airs at10:00 pm, EDT/9:00 pm, CDT.  check your local TV listings for the time in your market.

You can preview the episode, "Grave Injustice," at the link.

Convicted of murder and sentenced to death ... 16 years later, students help set Anthony Graves free. Richard Schlesinger reports.

Earlier coverage of Anthony Graves case and his exoneration begins at the link.  All coverage is in the Anthony Graves index.

Commentary on the Denkowski Sanction

Michael Landauer posts, "We don't kill the mentally retarded. But how do we decide if someone can be executed?" at the Dallas Morning News Death Penalty blog.

A very troubling story in the New York Times late last week. It seems that the psychologist who "examined" death row inmates to determine if they were mentally retarded has been reprimanded for, well, quackery.

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense lawyers as unscientific. Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

So what did the good doctor do that other, better doctors and researchers had a problem with? He ignored established tests for determining mental capacity and substituted his own, which he says corrected for cultural differences. Hey, maybe some cultures just don't teach kids how to read a menu or what a thermometer is used for, he reasoned.

In a 2006 evaluation of Steven Butler, who was convicted in the killing of a store clerk, Dr. Denkowski rejected other I.Q. test scores that indicated Mr. Butler was well below average intelligence. He discounted behavioral evaluations from Mr. Butler's family and friends, who said the young man could not understand the rules of basketball, had to have others read menus for him and had failed basic classes.

In perhaps the strangest twist in this agreement, both sides said that this public slap-down cannot be used in death penalty appeals. Why the hell not? (Fortunately, defense lawyers plan to challenge this.)

The Investigative Fund carries, "Death Row Psychologist Reprimanded."  It's posted by Jed Bickman.

Texas psychologist George Denkowski will never again evaluate inmates' IQ to determine if they are mentally disabled — and thus unable to face the death penalty — or not. The Texas State Board of Examiners of Psychologists has issued him a reprimand. He will also pay a fine of $5,500. All of which is good news for the fourteen inmates on Death Row who Denkowski, using highly criticized and faulty methods, determined were not mentally handicapped. It comes too late for the two inmates who have already been executed after Denkowski found them mentally capable. 

Last January, in a Texas Observer cover story, Investigative Fund reporter Reneé Feltz exposed the questionable methods and junk science used by psychologist George Denkowski in an article about the Texas death penalty case of Mexican immigrant Daniel Plata. In the 2002 Atkins v. Virginia ruling, the Supreme Court stated that "executions of mentally retarded criminals are cruel and unusual." Defense lawyers called Denkowski "Dr. Death" for his finding twenty-one of the twenty-nine inmates he has worked with to be mentally capable — and thus eligible for the death penalty. Feltz showed that he routinely inflated the inmates’ IQ scores through faulty methods.

And:

Defense attorney Robert Morrow told Feltz, "Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded." Morrow represented Alfred DeWayne Brown, who remains on Death Row, but whose case may receive more scrutiny in light of last week's settlement.

On April 13, Denkowski reached a settlement with the Texas State Board of Examiners of Psychologists, which issued a formal reprimand against him and dismissed, with prejudice, the complaints against him. Under the terms of the settlement, Denkowski has agreed to never again conduct intellectual disability evaluations in criminal cases. 

Defense attorneys for the fourteen inmates currently on Death Row believe that last week's settlement will provide new hope for their clients, who they argue are mentally handicapped, to escape execution.

The decision is a small victory in the larger fight to bring justice to the death penalty system. State Senator Rodey Ellis of Houston, chairman of the Innocence Project, said that the courts should review every case involving Denkowski. "We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men," he said.

Earlier coverage of the Denkowski sanction begins at the link.  Feltz' earlier reporting is noted at the link.

Related posts are in the mental retardation category index.  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.

Dave Mann's Reporting on the FSC Report

Texas Observer journalist Dave Mann writes, "A Nebulous End to the Willingham Inquiry."  I'm singling it out because of his earlier reporting on other arson cases, tainted by old science.  Here's the beginning of this must read:

The moment had an air of finality to it.

In a small hearing room in downtown Austin, eight members of the Texas Forensic Science Commission voted this afternoon to adopt their final report on the long-disputed arson conviction of Cameron Todd Willingham. It was a moment five years in the making. The New York-based Innocence Project had originally asked the commission to investigate the case back in 2006. So when the final vote was taken to adopt the report, an Innocence Project staffer and members of Willingham’s family—who claim that Texas executed an innocent man—applauded from their seats in the front row.

It felt like an ending. But what exactly the end result was—like so much in the Willingham saga—seems unclear. If this was the end, it was a nebulous one.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

The commission refused to address those questions because it’s not clear it has the authority to do so. In January, the commission requested an opinion from the Texas Attorney General’s office on whether it has jurisdiction to determine “professional negligence” in arson cases.

The AG’s opinion is due this summer. But the commission chose to issue a final Willingham report anyway. It’s not exactly clear why the commission was in such a rush, though it’s worth noting that this was likely the last meeting for controversial Chair John Bradley. The Texas Senate is unlikely to confirm Bradley before the end of the legislative session. Perhaps Bradley wanted to finish the Willingham report before he’s removed from the commission and returns exclusively to his day job as Williamson County DA.

Earlier coverage of the FSC meeting begins in the preceding post.

More of Mann's arson journalism begins at the link.

Lethal Injection Fraud in Arizona?

"Execution-drug import papers raise questions," is the title of Michael Kiefer's report in today's Arizona Republic.  Here's an extended excerpt:

Three shipments of drugs imported by the Arizona Department of Corrections were represented to U.S. customs and Food and Drug Administration officials as being for use on animals despite being intended for use in inmate executions.

According to documents obtained by The Arizona Republic under the federal Freedom of Information Act, two batches of the anesthetic sodium thiopental and one batch of the paralytic-drug pancuronium bromide were brought into the country from Britain last September and October and were described on federal import paperwork as being for "Animal (Food Producing)."

Thiopental, a painkiller, is used in executions to sedate the condemned convict, while pancuronium bromide renders the convict unable to move. A third drug, potassium chloride, is then injected to stop the heart.

The source of thiopental has been a matter of legal and political controversy in several U.S. states and European countries.

Defense attorneys have raised questions about whether the drugs were legally obtained and whether they were certain to be effective. Thiopental is meant to render an inmate unable to feel suffering during an execution. If the painkiller is ineffective, they attorneys argue, the execution could be cruel and unusual punishment.

Arizona has two executions scheduled during the next two weeks in which the drug is supposed to be used, although legal challenges are in the works.

State Corrections Director Charles Ryan said in a written statement that the department's execution drugs were "procured lawfully" and that the department in dealings with FDA and customs "clearly stated that the purpose for acquiring these chemicals was to carry out an execution."

It was not immediately clear whether the drugs obtained were, in fact, manufactured for animal use, or if the nature of the drugs was misstated in FDA documents.

"If FDA becomes aware of incorrect information in a filing, the agency has many options which could include further investigations and, where appropriate, pursuing civil or criminal sanctions," FDA spokeswoman Shelly Burgess said.

Thiopental is used for veterinary anesthesia but not for animal euthanasia.

Dr. Tom Doherty, a veterinary anesthesiologist in Knoxville, Ky., said, "You can mix it up in any strength you wish. But it wouldn't be used in (human) clinical use if it's labeled for animals. That wouldn't be allowed."

Burgess said federal approval of veterinary drugs takes other factors into account, such as whether the drugs are to be used on animals that are food-producing and calculating effects on the environment given that animals usually urinate and defecate on the ground.

"Animals are not equivalent to small humans. There are great species differences, and it's not always a matter of dose," Burgess said. "So, if a drug is approved for animals, it does not mean that it is safe to use in a human and vice versa."

Thiopental has been virtually unavailable in the U.S. since last summer and has not been manufactured domestically since 2009. That prompted several state governments to look to import it.

At first, the FDA officially said that there were no legal means of importing it. But late last December, after at least five states had obtained and used foreign drugs for executions, the agency reversed its policy and said it would not police drugs used for lethal injection.

Attorneys in several states have sued the FDA over that policy. Last week, the U.S. Drug Enforcement Administration seized a thiopental supply from Georgia to investigate whether it had been legally imported. This week, attorneys in Arizona and Kentucky asked U.S. Attorney General Eric Holder to investigate supplies in their states.

A recent report from Great Britain indicates that there have been 12 adverse reactions to British-produced thiopental. Lawyers in several states maintain that it may not have worked efficiently in recent executions, claiming that at least three men died with their eyes still partly open, suggesting they were not fully sedated before the other chemicals were administered.

Documents released to The Republic by U.S. Customs and Border Protection on Thursday show that the Arizona execution drugs - which were used last October to execute Jeffrey Landrigan and are expected to be used over the next two weeks to execute two more prisoners here - were labeled in import papers as drugs for use on animals.

This afternoon, the AP has circulated "States look overseas for scarce execution drug."  It's available from the Washington Post as, "States beg, borrow and import scarce execution drug; Ga. is investigated."  It's by Greg Bluestein and datelined Atlanta;  AP writers Brett Barrouquere in Louisville, Ky., Kristin M. Hall in Nashville, Tenn., Paul Elias in San Francisco, Holbrook Mohr in Jackson, Miss., Jeannie Nuss in Little Rock, Ark., and Gregory Katz in London contributed to the report.

Prison officials around the country have been going to extraordinary — and in at least one case, legally questionable — lengths to obtain a scarce lethal-injection drug, securing it from middlemen in Britain and a manufacturer in India and borrowing it from other states to keep their executions on track, according to records reviewed by The Associated Press.

"You guys in AZ are life savers," California prisons official Scott Kernan emailed a counterpart in Arizona, with what may have been unintentional irony, in appreciation for 12 grams of the drug sent in September. "Buy you a beer next time I get that way."

The wheeling and dealing come amid a severe shortage of sodium thiopental, a sedative that is part of the three-drug lethal injection cocktail used by nearly all 34 death penalty states. The shortage started last year, after Hospira Inc., the sole U.S. manufacturer of the drug and the only sodium-thiopental maker approved by the Food and Drug Administration, stopped making it.

As supplies dwindled, at least six states — Arizona, Arkansas, California, Georgia, Nebraska and Tennessee — obtained sodium thiopental overseas, with several of them citing Georgia as the trailblazer.

Documents obtained through open-records requests show Georgia managed to execute inmates in September and January after getting the drug from Dream Pharma, a distributor that shares a building with a driving school in a gritty London neighborhood. Dream Pharma's owner has not returned several calls and emails for comment, and an AP reporter who visited the office last week was told the owner was not available.

Last week, however, the Drug Enforcement Administration seized Georgia's entire supply — effectively blocking the scheduling of any further executions — because of concerns over whether the state circumvented the law. "We had questions about how the drug was imported to the U.S.," agency spokesman Chuvalo Truesdell said, declining to elaborate.

Federal regulations require states to register with the DEA before importing a controlled substance and to notify the agency once they have it. John Bentivoglio, a former Justice Department attorney who represents a condemned Georgia inmate, said in a February letter that Georgia appears to have broken those rules, and that such violations mean "adulterated, counterfeit or otherwise ineffective" sodium thiopental could be used in executions, subjecting prisoners to extreme pain in violation of the constitutional ban on cruel and unusual punishment.

And:

The documents obtained by the AP show that authorities in Kentucky frantically reached out to more than two dozen other states, several companies and the federal Bureau of Prisons throughout 2010 in hopes of finding sodium thiopental. Kentucky even considered carrying out three executions in quick succession before the state's supply expired. Kentucky officials were getting rejected everywhere they turned.

"I am beginning to think drug companies and suppliers are not real happy to have to supply us for this use," Phil Parker, warden of the Kentucky State Penitentiary, wrote in a July email. He was right. Hospira has publicly objected to the use of its drugs in executions.

Kentucky finally bought 18 grams last month from a Georgia pharmacy.

Nebraska announced in January that it had acquired 500 grams from Kayem Pharmaceutics of India, the minimum amount available for sale. That is enough for nearly 170 executions; the state has a dozen men on death row.

Earlier coverage from Arizona begins at the link. 

Related posts are in the lethal injection index.  Relevant posts include:

• Call for DoJ Investigation in Georgia Drug Acquisition
• More on the British Import
• Lethal Injection Roundup
• Questions Surround British Drug Used in Georgia Execution
• UK Source of Drug Revealed
• The FDA and Lethal Injection Drugs

In The Nation

The Nation's current issue features the monthly column, Ten Things.  This month it's, "Ten Things to Abolish the Death Penalty," conceived by Walter Mosley, with research by Rae Gomes.  As in all things death penalty, it's Texas heavy.  Here's an extended excerpt from this must read:

On March 9th, Illinois became the fourth US state in the past five years to abandon the death penalty, a significant shift in the country's growing rejection of capital punishment. After weeks of deliberation, Republican Governor Pat Quinn not only signed a bill into law that kills the death penalty in the state, he also commuted the sentences of all 15 men on death row—men who would have still faced execution even with the new law in place. In 2003, then-Illinois Governor George Ryan famously emptied death row, citing grave concerns about innocent people facing execution as well as "the fairness of the death penalty system as a whole.” Last week, Quinn echoed his predecessor.

For Nathson Fields, one of countless men who were wrongfully convicted after being tortured under corrupt Chicago police commander Jon Burge, the victory was especially sweet. "I spent eleven-and-a-half years on death row for a crime I did not commit. Illinois tossing out the death penalty will affect other states. This will send the message that it can be done. It should be done.”

What can we do to build on the success in Illinois? We can get involved by joining abolitionist groups, signing petitions and contacting our elected officials. But, as Gov. Quinn did, we must also listen to those who have grappled with this system firsthand: former prisoners, death row lawyers, prisoners' family members, activists and victims of violent crime. Margaret Summers of the National Coalition to Abolish the Death Penalty and Liliana Segura of the Campaign to End the Death Penalty asked ten such experts to share their thoughts, on cases that stand out, on strategies that work and on what Americans should know about the death penalty today.

1 Anthony Graves, exonerated from Texas’s death row in 2010.

I know how easy it was for them to take my freedom and set out to kill me. I feel that if it was that easy, I’m sure there have been many mistakes in the past, that many men and women on death row are innocent. It’s not an infallible system. Anyone can be sentenced to death for a crime they didn’t commit. That alone is a reason that the death penalty should be abolished. Read Graves's here and go to Witness to Innocence.

2 Bryan Stevenson, Executive Director, Equal Justice Initiative.

Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in death penalty cases where hundreds of death row prisoners have been convicted or condemned by juries where people of color were illegally excluded. This racial bias has undermined the credibility of capital punishment and contributed to the marginalization of African Americans and other racial minorities from full representation when the most critical issues in our communities are decided. Read about Racial Discrimination in jury selection.

3 Martina Correia, activist, sister of Troy Davis, who is currently on Georgia's death row.

We must target the doctors who assist in state sanctioned killings and ban the sale or availability of drugs used in executions. We should launch a campaign of death row family members and members of groups like Murder Victims' Families for Reconciliation to challenge the US at the United Nations, calling executions a human rights violation, a morally corrupt and selective process of exterminating people without resources. Go to Physicians for Human Rights.

4 David Dow, Texas death penalty lawyer, author of  Autobiography of an Execution.

Learn about the Michael Richard case. He was mentally disabled. On the morning of his execution, in 2007, the Supreme Court agreed to hear a case on the constitutionality of lethal injection. Lawyers in my office scrambled to file a petition for Richard raising the issue, but he was executed because we did not finish by the time the court closed at 5. The court would not stay open late for us. I think if we had been able to get the petition filed, he would still be alive today.

5 Natalie Skinner, daughter of Hank Skinner, who is currently on Texas's death row.

If people would take the time to learn about the people on death row, they would be surprised to find out that many are parents with children who love them very much. Their relationships with their families don't just stop when they are sentenced to die. At the end of the day, the death penalty hurts more people than it helps by continuing the very cycle of violence it was put in place to break.

Read the rest at the link.

Texas Tribune Interviews Carroll Pickett

Brandi Grissom conducts, "Rev. Carroll Pickett: The TT Interview."  There is video at the link.

The Rev. Carroll Pickett holds the world record for witnessing the most state executions as a chaplain. He saw 95 men die by lethal injection during his career as the death house chaplain.

In the years since he left the Texas Department of Criminal Justice, Pickett has written a book and starred in an award-winning documentary that chronicled his work at the Walls Unit in Huntsville. He sat down with The Texas Tribune recently to talk about how he "seduced the emotions" of the condemned, why his views about the death penalty changed and how he now copes with all the death he has witnessed.

And:

TT: What changed your mind about the death penalty?

Pickett: The main reason I was in favor of the death penalty was because my grandfather was murdered. And my father never talked about it. I found out through one of his cousins. My father was very strongly in favor of punishment, punishment, punishment, hard punishment. So I live with that. Then I began to see that these fellows, first of all they were not the same people who committed the crime, if they committed the crime. You know, they change. We called it restorative justice. Everybody can change. And then I got to see how much it costs. You know, the third guy that was executed, it cost that county $6 million. And then there were many of them — way too many — who I knew were innocent, who did not commit the crime. It is cruel and unusual punishment. It is not always painless. We have botched executions.

Earlier coverage of Carroll Pickett begins at the link.

Lethal Injection Roundup

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Parliament of Experts

That's the title of Jordan Smith's latest must-read in the current Austin Chronicle; on the stands, today.  It's subtitled, "Did 'expert testimony' convict an innocent woman of murder?"  Here's an excerpt:

In fact, nearly every witness who testified against Jimenez at her trial testified, in varying degrees, as an "expert" – not only did the doctors have an opinion for the jury about key elements of the case, but so did police and even the 911 dispatcher who took the initial call for help.

But who, exactly, is in the best position to say what happened to Bryan Gutierrez that day – beyond a reasonable doubt? The only adult present in the apartment, Jimenez, insists that Bryan's choking was an accident. Although Jimenez did not testify at trial, the video of her interview with police was played for the jurors, who could follow along with a printed transcript. In the end, it seems the jurors believed the experts; after a six-day trial the jury found Jimenez guilty, sentencing her to 99 years in prison.

Did the experts in this case – the doctors who forcefully asserted that this had been no accident – help put a cold-blooded child-killer behind bars? Or did the state's use of expert witnesses to explain the fatal injury convince a jury to convict an innocent person? More broadly, in such an expert-dependent case as this – one that demands professional certainty on difficult questions – what is the effect of expert witnesses? Who is the best expert? Who decides? What if they're wrong? And what impact does the use of expert witnesses have on our criminal justice system?

Five years after her trial, after hearings over several days in December 2010, then-Travis County District Judge Charlie Baird concluded that Jimenez is entitled to a new trial. Her new defense attorneys proffered additional expert testimony to counter the expert evidence offered by the state at trial, testimony that Baird found credible. Had Jimenez's jury heard any alternate theory of the crime, it is unlikely that the verdict would have been the same, Baird opined, concluding that Jimenez had been denied due process and that her attorney, veteran defender Leonard Martinez, had rendered ineffective assistance to his client. If the Court of Criminal Appeals agrees, Jimenez's case may be coming back for a retrial.

Should that happen, the case will put the use of experts under a criminal justice spotlight.
Experts Assembled

To attorney Bryce Benjet, who along with Susan Henricks is now representing Jimenez, the case against his client is all about medical expertise – and its limits. He firmly believes in his client's innocence and that the experts who opined that the paper towel choking could not be an accident are the only reason Jimenez is behind bars. "This was not a witnessed event; no one saw Bryan Gutierrez choke," he said in a recent interview. The case was "almost entirely about the opinions of doctors who treated Bryan ... after the obstruction was removed. Without their testimony, there would be no evidence to show any guilt at all," he said. "That is why the reliability of the experts at trial was crucial."

Each of the state's medical witnesses came to court with the expected credentials, and each agreed that they'd never before seen a case like Bryan's. That, in part, seemed to convince them that his choking could not be an accident. The doctors agreed that children, including those Bryan's age, put all kinds of things in their mouths – buttons and marbles and coins and rocks, for example – and will, at times, choke on those items, particularly smooth things, like hot dogs, which are among the biggest offenders in child choking cases. But none believed that a child would put paper towels, and certainly not that many, in his mouth: "children don't suck on paper towels," Dr. Patricia Aldridge (then Patricia Oehring) declared during her testimony. Furthermore, even if a child were to put something in his mouth like a "woody"-tasting paper towel, Aldridge reiterated during her most recent testimony in December – and something as large as five wadded paper towels – the child wouldn't then try to swallow it.

Jordan was honored by the Texas Civil Rights Project last year for her criminal justice reporting.

Where Texas Obtains Its Lethal Injection Drugs

The next three posts all relate to lethal injection news.  First, Texas.

"Ohio company supplies state with lethal drugs," is the title of Mike Ward's report in today's Austin American-Statesman.

Texas, which runs the nation's busiest prison death chamber, buys the three lethal drugs it uses to execute its condemned convicts from an Ohio pharmaceutical supplier, officials disclosed Thursday.

The revelation came after state prison officials had for months fought the release of the information, in unsuccessful arguments to Attorney General Greg Abbott and to a Travis County state district judge.

At several points, prison officials had argued that the safety of prison employees and the employees of the supplier might be jeopardized if the supplier's name was made public. Additionally, they insisted that the supplier might stop shipping the drugs to Texas, and executions could be stopped.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said all three drugs are purchased from Besse Medical, a supplier based in West Chester, Ohio .

She said she did not have additional information about the supplier or whether the disclosure could affect future deliveries of the drugs.

She said an Austin judge ordered the agency on Jan. 11 to reveal the name of the supplier as part of a court challenge filed by condemned killer Cleve Foster. He was scheduled to die Jan. 11, but the U.S. Supreme Court delayed his execution just before it was to take place. The high court rejected Foster's latest appeal Tuesday.

Officials at Besse and Pennsylvania-based AmerisourceBergen Corp., its corporate owner, could not immediately be reached for comment.

And:

Abbott had ordered prison officials to make public some information about the lethal injection drugs after the American-Statesman and other groups requested records about the inventories and suppliers of lethal injection drugs.

In response, Texas prison officials announced last fall that they had enough doses to execute 39 prisoners, but that all doses of the sodium thiopental expire in March.

Earlier coverage begins with the post, "Texas Lethal Injection Drugs."  Related posts are in the lethal injection index.