The StandDown Texas Project

Public Defender Heads to 8th Circuit Bench

"Jane Kelly's experience rare on US appeals court," is the AP report by Ryan J. Foley.  It's also available via ABC News.

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

And:

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective."

Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

There's additional federal court news, as well.

The BLT - Blog of Legal Times posts, "Senate Judiciary Approves Sri Srinivasan for D.C. Circuit," by Matthew Huisman.

The Senate Judiciary Committee gave unanimous approval to Sri Srinivasan to serve on the U.S. Court of Appeals for the D.C. Circuit, clearing the way for him to be the first new judge on the panel since 2006.

Srinivasan’s nomination now heads to the Senate for a full vote. Srinivasan, if he’s confirmed, would fill one of four vacancies on the D.C. Circuit. Despite the 18-0 vote of the committee, Republicans have signaled they’re not interested in adding any more judges to the appeals court.

Senator Chuck Grassley (R-Iowa) introduced legislation in April that would eliminate three spots on the D.C. Circuit. Other Republicans, including Senator Mike Lee (R-Utah), have signed onto the legislation. The D.C. Circuit would lose three judge positions under the plan.

And:

Earlier this year, Republicans rejected the nomination of Caitlin Halligan to fill a vacancy on the D.C. Circuit. President Barack Obama has yet to successfully place a judge on the court, often considered the second most important court in the country below the Supreme Court.

White House press secretary Jay Carney, in a written statement, tried to dispel the Republican notion that the open seats should be eliminated.

"The D.C. Circuit is often considered the nation’s second-highest court, but it has twice as many vacancies as any other court of appeals, and its workload has increased by over 20 percent since 2005," Carney said. "Srinivasan’s confirmation will be an important first step to filling this court’s four vacancies, and the full Senate should act without unnecessary delay."

Also from the BLT, "Federal Courts Ask for Emergency Funding," by Todd Ruger.

Federal courts officials have asked Congress for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices.

In a letter sent Tuesday to the White House Office of Management and Budget, the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million—$41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.

Earlier coverage of federal judicial nominations and the impact of sequestration, at the links.  There's much more on the topic at the Judicial Nominations and Judicial Selection Project websites.

Related posted are in the judiciary and politics category indexes.

Texas Execution Date Withdrawn for DNA Testing

The Austin Chronicle posts, "Pruett Gets 60-Day Delay Pending DNA Testing," by Jordan Smith.

According to the state of Texas, on Dec. 17, 1999, Robert Pruett, 20, took a sharpened metal rod wrapped with tape and stabbed prison guard Daniel Nagle eight times, prompting a heart attack that killed the guard. Pruett then took a disciplinary complaint that Nagle had just written concerning Pruett's behavior that afternoon – he'd tried to take a sack lunch in the recreation yard, a violation of rules – and tore it up, discarding the pieces next to the guard's body.

At the time of Nagle's death, Pruett was already serving a 99-year sentence in the Texas Department of Criminal Justice's McCon­nell Unit in Beeville for murder; at 16 he'd been certified to stand trial as an adult for his role in the beating and stabbing death by Pruett's father of a neighbor in the Harris County trailer park where they lived. Given his record, it's little wonder that a jury in 2002 sentenced Pruett to die for Nagle's murder.

But his execution, initially slated for May 21, last week was postponed for 60 days pending the outcome of agreed-to DNA testing that could demonstrate Pruett was not responsible for Nagle's death. Pruett has maintained his innocence, and his lawyer, David Dow, founder and co-director of the Texas Innocence Network at the University of Houston Law Center, is seeking to test pieces of the ripped-up disciplinary form to see if Pruett's DNA, or that of someone else, is on the paper. "DNA testing could corroborate [Pruett's] claim of innocence while also identifying the actual perpetrator of the murder," Dow wrote in a motion filed May 9. He notes that a palm print found on the paper was not a match to Pruett, and blood found on the pieces matched Nagle and "no other DNA profiles were developed from the report," he wrote.

"State judge delays execution set for next week," is the AP coverage, via the Baytown Sun.

A state district judge has put off next week's scheduled execution of a Texas inmate condemned for the slaying of a corrections officer at a South Texas prison in 1999.

Robert Pruett faced lethal injection May 21 for the fatal stabbing of Dan Nagle, a corrections officer at the McConnell Unit prison near Beeville. Attorneys for Pruett want additional DNA testing in his case. Prosecutors agreed to a 60-day delay.

State District Judge Ronald Yeager in Bee County on Tuesday formally withdrew next week's execution date. The judge also set a hearing for June 3 to address questions about the forensic testing and a new execution setting.

Related posts are in the DNA category index.

More Calls for Florida Veto

Today's Tallahassee Democrat publishes the editorial, "Speed vs. justice: Be cautious in accelerating executions."

Just about the time that many Florida voters again grow tired of the endless appeals and delayed executions of those on Florida’s Death Row, along comes somebody like Clemente Javier “Shorty” Aguirre.

The Legislature passed House Bill 7083, known as the Timely Justice Act, this session in part to speed up the process that leads to an execution. There is no denying that the process can be a long one.

And:

Since 1973, Florida has seen 24 people exonerated after being on Death Row, according to the Death Penalty Information Center. The Florida Bar has adopted a resolution asking the state to initiate a review of the state’s death penalty process.

General debate about the death penalty can wait for another day. But the state must never execute an innocent person.

Speeding up justice is a laudable goal. Speeding up a malfunctioning justice system might not be.

"Protect the Innocent: Florida's Governor Must Veto the 'Timely Justice Act', is by Juan Melendez at Huffington Post.  He was exonerated in Florida in 2002, and works with Witness to Innocence.  Here's the beginning of this must-read:

When I was arrested for a murder I didn't commit, I had alibi witnesses placing me elsewhere at the time of the crime. There was no physical evidence tying me to the bloody crime scene. The only evidence that the state of Florida presented against me were two questionable witnesses: a paid police informant and another who falsely implicated me and others under the threat of the electric chair. In exchange for his testimony against me, he received two years' probation.

My trial took less than a week. I was sentenced to death. I spent nearly 18 years on death row, a traumatic and heartbreaking time for me and my family.

Although my mother prayed that my innocence would one day be proven and I would be released, she also saved money to take my body home to Puerto Rico and bury me there.

I never stopped fighting for my freedom. After 16 years on death row, the case against me finally fell apart when critical evidence was discovered, including a transcript of a taped confession by the real killer, along with other exculpatory evidence that the prosecutor had withheld from my attorneys.

Shockingly, up until this point, the Florida Supreme Court had upheld my conviction and death sentence three times on appeal. I was saved by the grace of God or, as some would say, "pure luck."

Finally, after almost 18 years on death row, the truth about my innocence came out. I was exonerated, and today I am a free man.

What happened to me has happened to many other people as well. Florida leads the nation in exonerations in death penalty cases. Twenty-four innocent people have been freed from our death row, including myself.

An AP report, previously linked, has been updated and expanded. "Ex-death row inmates: Veto Timely Justice Act," is by Kelli Kennedy, via the Palm Beach Post.

The bill, which was recently passed by the Republican-led Legislature, essentially minimizes the time between sentencing and execution by creating tighter timeframes for appeals and post-conviction motions and by imposing reporting requirements on case progress. The measure also re-establishes a separate agency for north Florida to provide appellate-level legal representation to inmates sentenced to death, and requires them to "pursue all possible remedies in state court."

It would also require a governor to sign a death warrant within 30 days of a State Supreme Court review of a capital conviction. The state would be required to execute the defendant within 180 days of the warrant.

The law comes as Florida's capital punishment process has come under intense scrutiny and has been criticized for allowing some condemned inmates to languish for decades on death row. A New York Times editorial published Tuesday said the bill was "grotesquely named."

Florida has exonerated 24 men on death row since 1973, more than any other state, according to the Death Penalty Information Center.

Florida now has 405 inmates on death row, more than any other state except California. It takes an average of 13 years for an inmate to move from sentencing to execution.

Salon posts, "Florida law would speed up executions," by Natasha Lennard.

For the past two years in a row, Florida has sentenced more people to death than any other state — owing to a number of issues in the state justice system including the fact that while a judge makes the sentencing decision, Florida is one of only three states that allows non-unanimous jury recommendations in capital sentencing.

The Florida Supreme Court and the Florida Bar have called for reviews of the death penalty process in the state in order to make recommendations to improve it; those studies have yet to be undertaken. In 2009, meanwhile, the American Bar Association did study capital punishment in Florida, none of which have been undertaken either. Capital punishment, especially when exacted through a flawed judicial process like Florida’s, is already barbaric; it needs no acceleration.

Earlier coverage from Florida begins at the link.

Another Florida Exoneration Looming?

"Lawyers Say DNA Clears Florida Inmate in Two Killings," is the New York Times report by Lizette Alvarez.

Seven years after he was sentenced to death in the fatal stabbings of two Florida women, Clemente Javier Aguirre appeared in a Seminole County courtroom on Monday to present DNA evidence that could win him a new trial.

Mr. Aguirre’s lawyers said that DNA testing they had ordered on dozens of previously untested items from the crime scene turned up none of Mr. Aguirre’s blood. But, the lawyers said, it revealed blood drops throughout the crime scene belonging to the daughter of one of the victims, a woman with a history of mental illness.

No crime scene DNA testing was ever requested by Mr. Aguirre’s original trial lawyer in 2006.

“It’s the rare case in which you have DNA in multiple places at the scene of a homicide showing the blood of someone other than a convicted person,” said Nina Morrison, a senior staff lawyer at the Innocence Project, an organization dedicated to exonerating wrongfully convicted prisoners. Ms. Morrison is advising appellate lawyers for Mr. Aguirre, who is now 33.

After a two-week evidentiary hearing, the judge will decide whether to grant a new trial.

State Attorney Phil Archer said in a statement, “These are extremely important questions that need to be fully explored in open court.”

"Death row inmate back in Seminole County courtroom, asking judge to throw out convictions," by Rene Stutzman for the Orlando Sentinel.

A death row inmate convicted of stabbing his neighbor 129 times then murdering the woman's wheelchair-bound mother with the same kitchen knife returned to a Seminole County courtroom this morning, hoping a judge would throw out his conviction.

Defense attorneys, including those for the Innocence Project, are asking the judge to vacate the first-degree murder convictions and death sentence given Clemente Javier "Shorty" Aguirre, now 33.

And:

"We're fully convinced of Mr. Aguirre's innocence," said defense attorney Maria DeLiberato.

Today is the first day of what's expected to be a two-week evidentiary hearing in front of Circuit Judge Jessica Recksiedler.

Defense attorneys began by attacking the estimated time of death given by the doctor who performed the victims' autopsies.

As has been pointed out in recent articles about Florida legislation aimed at speeding up capital punishment in the state, Florida has exonerated more death row inmates than any other states; one, Frank Lee Smith, died of cancer while on death row.  Earlier coverage from Florida begins at the link.

Washington Supreme Court Hears Arguments Over Barred Death Penalty

"High court reviews exclusion of death penalty in 2007 Carnation killings," is by Sara Jean Green for the Seattle Times.

A King County judge overstepped his bounds when he ruled that prosecutors can’t seek the death penalty against the two people accused of killing a family of six on Christmas Eve 2007 in Carnation, the state Supreme Court was told Thursday.

King County Senior Deputy Prosecutor James Whisman argued that under the state’s death-penalty statute, “discretion is placed with the prosecutor” to decide whether to seek capital punishment.

But in ruling out the death penalty, Superior Court Judge Jeffrey Ramsdell wasn’t privy to all of the information King County Prosecutor Dan Satterberg considered in deciding to seek the death penalty, Whisman said.

“The court ruled the prosecutor can’t consider the strength of the evidence ... but he wasn’t clear on what he meant by ‘strength of the evidence,’ ” Whisman told the nine-member panel. Ramsdell did not have access to mitigation information on both defendants that was submitted by their defense attorneys, and the judge had previously denied a defense motion to compel Satterberg to spell out “which factors in the mitigation package he found persuasive and which ones” he didn’t, Whisman said.

But defense attorney Kathryn Ross, who represented defendants Michele Anderson and her former boyfriend, Joseph McEnroe, before the Supreme Court, said Satterberg’s decision to seek the death penalty was based only on the evidence and not on the mitigation evidence submitted by the defense. Ross argued that the state’s death-penalty statute is unique in that prosecutors are directed to impose it only if there isn’t sufficient evidence of mitigating factors to merit leniency.

“I guess that’s why we’re here — to decide how to read that statute. Is mitigation the only thing they consider” in deciding to seek the death penalty, said Chief Justice Barbara Madsen.

And:

Ramsdell ruled that while Satterberg properly considered the “facts and circumstances” of the crimes, the prosecutor erroneously considered the strength of the state’s evidence against Anderson and McEnroe in deciding whether to seek the death penalty.

He said the prosecutor should only have weighed whether there were sufficient mitigating circumstances to warrant leniency if convicted — which in the case of aggravated first-degree murder means life in prison without the possibility of release, instead of death.

Under state law, mitigating factors in potential death-penalty cases can include evidence of an extreme mental disturbance or impairment. Leniency also can be merited if a suspect acted under duress or domination of another person.

Lubbock Avalanche-Journal Series

The Lubbock Avalanche-Journal has published a series of articles under the heading, "Ultimate Punishment: The Death Penalty in Lubbock and the South Plains."  The series is written by Walt Nett.  There are infographics at the link.

"Four local inmates, linked by one three-digit number, waiting on Death Row."

They are four men from Lubbock, connected by a single three-digit number, who may think more than most people about how long they have to live.

The number Joe Garza Jr., Rosendo Rodriguez III, Vernon Ross and Michael Yowell have in common is 999 — the first three digits of a Texas death row inmate’s identification number since mid-1991.

"Movement apparent in local death penalty cases; Pace of verdicts slowing statewide."

Execution by lethal injection, the punishment Texas law allows a jury to recommend to deal with “the worst of the worst,” has quietly re-entered the South Plains legal environs.

It’s back, nearly five years after Lubbock County prosecutors last tried a death penalty case and four years after the last execution of a capital murder defendant from the South Plains.

It’s also arriving when fewer prosecutors across the state are asking jurors to recommend a death sentence, and more death penalty juries are choosing to sentence convicted capital murderers to life without possibility of parole.

"Courts granted relief for 7 men once condemned."

Since Texas resumed executions in 1982 — six years after the death penalty law was reinstated in the state — seven men won back a portion of their lives through successful appeals.

All had killed; none contested the verdict on appeal.

Instead, each successful appeal turned on some aspect of Texas’ capital murder law, and whether it had been applied properly during the punishment portion of their trials.

Six were commuted as a result of decisions in the Texas Court of Criminal Appeals, including three who said prosecutors had insufficient evidence for the jury to determine if the defendant would be a continuing threat to society.

The seventh commutation — also the most recent — arose from a spectacular “inadequate representation” ruling in U.S. District Court in Lubbock with a bizarre element.

Rather than going back for new punishment trials, six defendants accepted prosecutors’ offers of life in prison, while the seventh received a 55-year sentence.

9th Circuit Revives Wrongful Conviction Lawsuit

The U.S. Court of Appeals for the Ninth Circuit ruling in Goldstein v. County of Los Angeles is available in Adobe .pdf format.

"Appeals panel revives former inmate's suit against L.A. County," is Maura Dolan's Los Angeles Times report.

A man convicted of murder largely on the basis of a jailhouse informant's perjured testimony may attempt to hold Los Angeles County liable for his 24 years in prison, a federal appeals court ruled Wednesday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals revived a lawsuit by Thomas Goldstein, who was released from prison in 2004 after a district judge found that informant Edward Fink had lied on the stand.

Fink, a heroin addict and felon, frequently received favors from prosecutors for testifying against defendants. His testimony against Goldstein earned him a reduced sentence.

Fink claimed that Goldstein told him in jail that he had a killed a man over money. On cross-examination, Fink lied when he said he had received no benefit for his testimony in that or other cases. The judge overturned Goldstein's conviction, and Los Angeles County prosecutors declined to retry him.

And:

Judge Stephen Reinhardt, one of the 9th Circuit panelists, agreed with Wednesday's decision but wrote separately to point out that California had executed Tommy Thompson in 1998 on a murder and rape conviction "based on Fink's perjured testimony."

"It is unlikely that Thompson was death-eligible for his part in the crime, if he was guilty at all of any offense …," wrote Reinhardt, appointed by former President Carter. "Although Thompson was executed as a result of Fink's perjury (as well as the other unfortunate judicial matters…) the innocent Mr. Goldstein was fortunate enough to avoid that fate."

The San Francisco Chronicle coverage is, "Lawsuit revived in wrongful murder term," by Bob Egelko.

In a separate opinion, one judge said the same informant's perjured testimony in another case led to the 1998 execution of a man who was probably ineligible for the death penalty and may have been innocent.

The ruling Wednesday involved Thomas L. Goldstein, a former Marine who had no criminal record when he was convicted of fatally shooting John McGinest in an alley near Goldstein's Long Beach home in 1979.

And:

Goldstein, who is now in his mid-60s, has sought damages against former District Attorney John Van de Kamp, the city of Long Beach and Los Angeles County, claiming they were responsible for his wrongful prosecution and conviction.

The U.S. Supreme Court dismissed his case against Van de Kamp in 2009, ruling unanimously that prosecutors are immune from damages for wrongful convictions. Long Beach settled with Goldstein for nearly $8 million in 2010, and on Wednesday the Ninth U.S. Circuit Court of Appeals reinstated his suit against the county.

The suit alleges that the district attorney's office had failed to train Goldstein's prosecutors to notify defense lawyers that an informant had been promised leniency. In a 3-0 ruling, the appeals court said the county can be held responsible for the misconduct of its prosecutors, reversing a federal judge's ruling that district attorneys are agents of the state.

One member of the panel, Judge Stephen Reinhardt, said Fink's "perjured testimony" had also been crucial to the conviction and execution of Thomas Thompson for a 1981 rape and murder in Orange County.

"L.A. County May Be Liable for Shaky Snitch," by Tim Hull for Courthouse News Service.

A man who spent 24 years in prison based largely on the testimony of a drug-addicted snitch may have a case against Los Angeles County, the 9th Circuit ruled Wednesday.

California district attorneys work for the county, not the state, when "adopting and implementing internal policies and procedures related to the use of jailhouse informants," and therefore are not necessarily immune from civil rights claims, the federal appeals court in Pasadena found.

The ruling breathes new life into the long-running case of Thomas Goldstein, a man tried and convicted for a murder in Long Beach in 1979. With no other evidence against the former Marine save shaky eyewitness testimony that was later recanted, prosecutors relied heavily on the word of jailhouse snitch Edward Fink, whom circuit Judge Sidney Thomas described as "aptronymic." In other words, aptly named.

"Federal appeals court rules wrongly convicted man's lawsuit against LA County can resume," is the AP filing, via the Republic.

While the case was pending the U.S. Supreme Court ruled prosecutors could not be held liable in such cases, so a district court dismissed Goldstein's suit.

But on Wednesday the Ninth U.S. Circuit Court of Appeals ruled it could move forward, saying the issue was not prosecutors' misconduct but an administrative failure by the county, which should have established an index of informants and favors to share with defense attorneys.

Thomas Goldstein's case is noted in this earlier post.

'Why Are You Defending a Murderer?'

That's the title of Andrew Cohen's latest post at the Atlantic.  It's subtitled, "The Willie Manning case raises some profound questions about capital punishment in America -- how it's perceived, and how it's covered."  It's another Cohen must-read:

Before the Willie Manning case moves off your radar screen again, before the media circus moves on to another capital case and another flurry of last-minute appeals, I want to address a few themes that inevitably come up when a condemned prisoner, a convicted murderer, is given any measure of relief from the courts. These issues directly track the questions now raised in the Manning case -- the state's failure to test DNA, questions about the scientific evidence that was introduced at trial, the credibility of key witnesses, the impact of race on jury selection -- but they apply more broadly to other capital cases.

1. Why are you defending a murderer? Anyone who writes about capital cases, anyone who criticizes prosecutors or judges for failing to protect the due-process rights of death-row inmates, almost immediately faces this question from readers. The answer is simple, and I'll answer it for myself alone: I am not defending a murderer. I am instead pushing the men and women in public office who run our justice systems to do better and do right by a rule of law. You can push for the latter without embracing the former. Another way to put it is: I do not focus in my writing on whether a death row inmate "deserves" to live or die. That's not up to me. I try to focus instead on whether the government (which operates in my name) has lived up to its constitutional obligations.

And:

5. The larger view. As I have written before, there is coming soon in the law a reckoning on capital punishment in America. Either there is going to be more fairness and accuracy in death penalty cases, either prosecutors and lower court judges are going to do more to protect the rights of capital defendants, or the United States Supreme Court is again going to preclude it as a sentencing option. The Court is one vote away from such a remedy, and if that happens it will be largely because of cases like the Manning case. It's not just about the law and the facts of these particular cases. It's not just about standards of appellate review. It's about the attitudes of the men and women whose job it is to implement the law.

CounterPunch posts, "Just Test the DNA."  It's by Alyssa Rohricht.

On Tuesday afternoon in Mississippi, Willie Jerome Manning was granted a last-minute stay of execution by the Supreme Court of Mississippi, just hours before his lethal injection was scheduled to go through.

Manning, an African-American man, was convicted of murdering Jon Steckler and Tiffany Miller, two white college students, in 1992. The case can be read as a manual for anti-death penalty advocates: racial bias in the original trial, false testimony from snitches, and even faulty science.

The stay comes after prosecutors and state courts refused Manning’s request for new DNA testing that could possibly prove his innocence, which he has maintained from the beginning. Since his trial, the FBI has come forward and admitted that the original analysis it performed on the evidence, such as testing hair samples found at the scene, contained numerous errors and it “exceeded the limits of the science and was, therefore, invalid.” What’s more, the FBI has offered to perform the new DNA testing itself. The FBI and the Department of Justice have also reviewed the ballistic evidence in the case and found that to be invalid as well.

Earlier coverage of Willie Manning's case begins at the link.

James Holmes' Attorneys to Persue Insanity Defense

"James Holmes seeks not guilty insanity plea in Aurora theater shooting," is the Denver Post report by John Ingold.

James Holmes wants to plead not guilty by reason of insanity to the killing of 12 people and the injuring of 70 others in the Aurora movie theater attack.

In a one-page court filing Tuesday, Holmes' lawyers wrote they intend to "tender a plea of not guilty by reason of insanity."

Holmes would need the judge's permission to change his plea from the standard not guilty plea currently entered on his behalf. Judge Carlos Samour Jr. wrote in an order Tuesday that he will allow Holmes' attorneys to argue at a hearing Monday morning that they have "good cause" for the plea change.

"After the Court determines whether 'good cause' exists, it will decide how to proceed," Samour wrote in his order.

If Samour allows Holmes to enter an insanity plea, state law requires Samour to immediately order an independent psychiatric evaluation for Holmes. The current February trial date would probably be moved, legal experts said, and the case — already pending for nearly 10 months — would stretch out significantly longer.

"Colorado Shootings Suspect to Enter Insanity Plea," is the AP filing, via the New York Times.

The man accused in the deadly Colorado theater shootings wants to change his plea to not guilty by reason of insanity, his lawyers said Tuesday, despite their fears that the plea could severely hamper his ability to mount a defense against the death penalty.

James Holmes is charged with more than 160 counts of murder and attempted murder in the July 20 assault on a packed Aurora movie theater that killed 12 and injured 70. Prosecutors announced last month they would seek the death penalty.

Holmes was widely expected to plead insanity given the compelling evidence against him, but his attorneys put it off for weeks, saying state laws on the death penalty and insanity overlap in ways that violate his constitutional rights and his ability to mount an effective defense.

One of their worries: If Holmes doesn't cooperate with doctors who will evaluate his sanity at the state mental hospital, he could be barred from calling witnesses to testify about his mental condition during sentencing. That would make it nearly impossible for his lawyers to use his mental state as an argument against the death penalty.

"If you don't cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared," said Karen Steinhauser, an adjunct law professor and former prosecutor.

Two judges previously refused to address the constitutionality question, saying Holmes couldn't challenge the insanity law unless he entered an insanity plea first. That gave his lawyers little choice but to enter the plea and then try to make their case against the law.

Their filing Tuesday made it clear they are not giving up their right to challenge the laws, Steinhauser said.

Earlier coverage of the Colorado theater shooting case begins at the link.

10th Circuit Upholds District Court on Oklahoma Brady Violation

The U.S. Court of Appeals for the Tenth Circuit ruling in Browning v. Trammell is available in Adobe .pdf format.  It overturns the conviction and death sentnence.

The Tulsa World reports, "Death penalty overturned: Man will get new trial in Glenpool killings case," by Bill Braun.

An appeals court has affirmed a Tulsa federal judge’s ruling to grant a new trial to a man who had been sentenced to die for the murders of a Glenpool couple.

In a ruling issued Monday, the 10th U.S. Circuit Court of Appeals upheld a decision by U.S. Senior District Judge Terence Kern to overturn the death verdicts that were imposed at the 2003 trial of Michael Allen Browning, who is now 37.

The 10th Circuit decision “will not be appealed. Our focus now is to start contacting witnesses and prepare for another trial,” said Tulsa County First Assistant District Attorney Doug Drummond.

And:

The 10th Circuit’s opinion says that “what the jury did not know — and the defense attorneys also did not know — was that Tackett, who became the most important witness at trial, had been diagnosed with a severe mental disorder.”

That information “was favorable to Browning and material to his defense, the federal appeals court wrote.

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

Mississippi Supreme Court Stays Willie Manning Execution

The state Supreme Court order in Manning v. Mississippi is available in Adobe .pdf format.

The Jackson Clarion-Ledger posts, "Mississippi death row inmate Manning gets reprieve."  It contains reporting from the Associated Press.

The Mississippi Supreme Court has issued a stay of execution for Willie Jerome Manning, set to be executed on Tuesday at 6 p.m.

The high court voted eight to one, with Justice Michael Randolph objecting.

Manning was given two death sentences for the 1992 slayings of Jon Steckler and Tiffany Miller, two college students. His attorneys had asked the state Supreme Court on Monday to stop his execution and allow him to seek DNA testing of evidence.

The U.S. Justice Department had sent letters saying FBI testimony on testing of bullet and hair evidence in the case had been overreaching for technology at the time.

Attorney General Jim Hood had opposed the request for a stay, saying it is just a delay tactic and that there was a “mountain of evidence” against Manning, including a confession to his cousin.

Manning's lawyers said in a filing with the Mississippi Supreme Court that the execution should be stopped based on the Justice Department's admission and previous disclosures about testimony that it says exceeded the limits of science.

Earlier coverage of Willie Manning's case begins at the link.

Additional Commentary on the Florida Capital Legislation

The Tampa Bay Times publishes the editorial, "Swift is not sure on death penalty."

In Florida and other death penalty states, it can take years and even decades for evidence of a prisoner's innocence to come out. Yet the Timely Justice Act passed by the Florida Legislature would speed the execution process with arbitrary and rigid time limits and reduce the governor's discretion in choosing which death warrants to sign, making it more likely that the state will execute an innocent person. Gov. Rick Scott should veto the bill so that Florida is not even more likely to make a fatal error.

Rep. Matt Gaetz, R-Fort Walton Beach and the sponsor of HB 7083, claims Florida's death penalty process is too slow and blames "legal gamesmanship and legal quibbling." Yet the state's system is nearly two years faster than the national average. Florida inmates are on death row an average of 13 years before they are executed; the national average is 14.83 years.

In fact, Florida fares far worse in its excessive and faulty use of the ultimate punishment. This state sentences more people to death than any other state and has the highest number of exonerations. That's because Florida doesn't require juries to unanimously recommend a death sentence or the aggravating factors that justify it, as other states do. While judges impose the final sentence, they almost always follow the jury's recommendation. An effort to require juror unanimity for death sentences failed again this session, and even an attempt to amend the legislation to require a supermajority jury vote of at least 10-2 failed.

"Death penalty needs real reform, not speed-up," is the Miami Herald OpEd by Raoul Cantero and Mark Schlackman.  Cantero is a former Florida Supreme Court justice; Mark Schlackman is at the Center for the Advancement of Human Rights at Florida State University.

The Florida Senate last week passed a bill to speed up executions entitled, the Timely Justice Act. It was sponsored by Rep. Matt Gaetz, R-Fort Walton Beach. He’s the House Criminal Justice Subcommittee chairman. The House had passed the bill earlier by an overwhelming margin after members quoted from scripture.

Simply put, it runs counter to current trends in death penalty legislation around the country. Gaetz’s apparent calculus was that justice will be served if families of murder victims don’t have to wait for finality, which begs the question as to usage of the term “justice” in this instance.

According to legislative staff analysis, individuals spend an average of 13.22 years on death row in Florida prior to execution, less than the national average.

In February, the Florida Bar adopted a resolution urging state officials to conduct a comprehensive review of the state’s entire death penalty process by all branches of state government, essentially to improve the administration of justice and thereby minimize the risk that Florida might execute an innocent person (or other individuals who should not be subject to the death penalty), a position that we sought for almost two years.

Earlier coverage of the controversial Florida legislation begins at the link.

Leonard Pitts on the Duane Buck Case

"Texas case exposes racial bias in death penalty for Duane Buck," is the title of Leonard Pitts's latest syndicated column.  It's via his home paper, the Miami Herald.  Here's the beginning:

If the state of Texas executes Duane Buck, it’ll be because he is black.

Well, mainly it will be because in 1995, he shot his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler, to death at Gardner’s Houston home, and also wounded his own stepsister, Phyllis Taylor. But it will also be because he’s black.

In Texas, they have this rule: a jury contemplating the death penalty must evaluate the likelihood a defendant poses a future danger to the community. Jurors in Buck’s trial were told he poses said danger because he is a black man.

Mind you, this came from a defense witness, whose ultimate finding was that Buck himself represented little danger. But, said psychologist Dr. Walter Quijano, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.”

When asked by the prosecutor whether “the race factor, black, increases the future dangerousness,” Quijano answered, “Yes.”

So Buck sits on death row awaiting an appeals court ruling on his bid for a new sentencing hearing. Not a new trial, you understand. No one disputes his guilt — or the monstrousness of his crime. But about the sentence, there is plenty dispute, enough that his surviving victim and Linda Geffen, a prosecutor who helped convict him, both think he should get a new hearing.

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

Ohio Supreme Court Clarifies Post-Conviction Access to DNA Testing

 The Ohio Supreme Court ruling in Ohio v. Noling is available in Adobe .pdf format.

Carrie Wood, a staff attorney with the Ohio Innocence Project, and counsel for Tyrone Noling has issued a statement, "Ohio Supreme Court’s Decision to Return the Case to the Trial Court to Consider Whether to Grant DNA Testing."

“We are pleased that the Ohio Supreme Court remanded Tyrone Noling’s case to the trial court to consider whether to grant DNA testing in this case. Mr. Noling has spent more than 15 years on death row for two murders he did not commit. We hope that the trial court will order DNA testing of the cigarette butt found at the crime scene and order the results of this new testing be uploaded to the CODIS database for comparison.  We also hope that the trial court orders a search for all evidence collected from the crime scene so that the lab might DNA test any additional items the perpetrator may have touched.

“The DNA testing of the cigarette butt may provide another piece of important information that supports Mr. Noling’s innocence. No physical evidence connects Mr. Noling to the crime. In fact, the physical evidence that exists excludes him as the perpetrator. All of the principal witnesses against Mr. Noling have recanted their testimony. The witnesses said they testified falsely against Mr. Noling because they were threatened with the death penalty or prison sentences if they did not. The prosecutors in this case wrongfully withheld evidence that indicates someone else committed the crime.

“DNA testing is an important step in helping to identify the person responsible for this crime and resolving the case. Ohio must not continue to keep an innocent man on death row.”

Associated Press coverage is, "Ohio high court clarifies DNA re-testing, orders reconsideration of death row inmate's request," by Kantele Franko.  It's via the Republic.

A trial court should reconsider an inmate's request for new DNA testing on a cigarette butt found near the scene of a double murder for which he was sentenced to death, the Ohio Supreme Court said Thursday in a ruling that clarifies the handling of post-conviction DNA retesting requests.

In the 5-2 decision, justices said a lower court was wrong to deny Tyrone Noling's second request for new testing without considering the context of updated statutory requirements. Those requirements were enacted in 2010, after Noling's first retesting request was rejected but months before the second was made.

Noling was convicted of killing Bearnhardt and Cora Hartig at their Portage County home in 1990, but he maintains his innocence.

Pretrial testing showed Noling and his co-defendants hadn't smoked the cigarette, which was found on the Hartigs' driveway. Noling contends technological advances make it possible to identify the smoker and determine whether that person was among other previously undisclosed suspects.

The court said the amended criteria allow DNA retesting under certain conditions, including if it would reveal new information that an earlier test couldn't.

An attorney for Noling said his defense team is hopeful the lower court will order new DNA testing, calling it "an important step in helping to identify the person responsible for this crime and resolving the case."

"Death Row Inmate Wins Case for New DNA Testing," by Mike Wagner in the Columbus Dispatch.

Convicted inmates still trying to prove their innocence from Death Row and elsewhere in Ohio’s prison system received an assist from the Ohio Supreme Court yesterday.

The court ruled 5-2 that a Portage County court must reconsider DNA testing for Death Row inmate Tyrone Noling, who was convicted in 1996 of murdering an elderly couple in their home.

The ruling says that Noling’s current request for testing shouldn’t have been dismissed simply because he previously was denied testing. The ruling also said that the local court didn’t take into account new standards and expanded criteria for testing approved by Ohio lawmakers in 2010.

The decision will have significance in other Ohio post-conviction cases, mainly because it reaffirms the new state law that encourages more testing if the evidence is significant to the case and to take advantage of advances in DNA-testing technology.

“Noling contends that (the state law) significantly changed and expanded the criteria for permitting further DNA testing. We agree,” wrote Justice Judith Ann Lanzinger, who wrote the court’s decision.

The decision also confirmed the Supreme Court’s right to hear appeals of a trial court’s denial of DNA testing in all Death Row cases.

"Portage court must reconsider DNA request in 1990 double murder case," by Ed Meyer and Stephanie Warsmith in the Akron Beacon Journal.

A Portage County death-row inmate scored a victory Thursday in his fight for new DNA tests of crime scene evidence from a 1990 double murder with an Ohio Supreme Court decision ordering a lower court to reconsider the issue.

The high court’s ruling does not grant Tyrone Noling new testing of a cigarette butt found at the scene of the murders, but it does require the trial court in Portage County to take another look at it.

“A trial court must consider current versions of statutes in ruling on an inmate’s application for new DNA testing of biological material in a death penalty case,” the court said in its majority opinion.

The wording refers to a law passed by the Ohio Legislature in July 2010, which opened the way for DNA retesting — using the latest technology — if it can be shown the tests could determine the true perpetrator.

"Death Row Inmate Tyrone Noling Can Request New DNA Test," by Peter Krouse for the ''Cleveland Plain Dealer.

The Ohio Supreme Court has cleared the way for a death-row inmate to request additional DNA testing on a cigarette butt that he hopes will clear him of a 23-year-old double homicide in Portage County.

The high court, citing a 2010 amendment to state law that allows for limited retesting of DNA -- ordered a trial court to consider Tyrone Noling's request for additional testing of the cigarette butt. (See the ruling below. Mobile users can see it here.)

Prior testing of saliva on the butt, which was found in the driveway of murder victims Bearnhardt and Cora Hartig in 1990, determined that Noling was not the source of the DNA.

Noling, who was convicted of the murders, wants to retest the evidence in light of advanced procedures that could determine if another man's DNA is present in the saliva.

In 2008, a court refused to order retesting of the cigarette butt because Ohio law at the time prevented DNA from being retested if a prior test produced "definitive" evidence. The court determined that the test that ruled out Noling and his co-defendants as the source of the DNA was such a test.

Earlier coverage of Tyrone Noling's case begins at the link.

Colorado Judge Sets August Execution Date for Nathan Dunlap

"Judge: Nathan Dunlap to face execution on week of Aug. 18," is the Denver Post report by Karen Augé and Adrian Garcia.

A judge Wednesday set the week of Aug. 18 as the time Nathan Dunlap should die for killing three teenage employees and their 50-year-old manager during the robbery of a Chuck E. Cheese's restaurant in Aurora nearly 20 years ago.

Over the objections of Dunlap's attorneys, Judge William Sylvester announced the date in an Arapahoe County District Court.

And:

Another — and potentially critical — issue stands between Dunlap and his last meal.

Like states around the country, Colorado is in a bit of a quandary over how it will obtain the three drugs to be used in an execution.

One of those drugs, sodium thiopental, is no longer manufactured in the United States, and the Italian government has said it will not allow the drug to be exported from a plant there if it is to be used for carrying out executions.

The DOC has sent letters to numerous compounding pharmacies around the state, seeking help getting the drug, spokeswoman Adrienne Jacobson confirmed.

But the department has refused requests, by both The Post and Dunlap's attorneys, to disclose whether any of those pharmacies have agreed to compound the drug for the state.

The AP filing is, "Judge chooses August for execution of Colo. inmate," by Dan Elliott.  It's via the San Francisco Chronicle.

Arapahoe County District Court Judge William Sylvester said Nathan Dunlap could be put to death the week of Aug. 18, but he also set a hearing on June 10 to hear arguments from Dunlap's attorneys over the constitutionality of the death penalty.

Dunlap would be the first person executed in Colorado in 16 years.

"We represent a very remorseful client, and it's a tragedy that this is going forward," defense attorney Phil Cherner said outside the courtroom.

And:

Though the judge set a week when Dunlap could be executed, it is up to Roger Werholtz, interim head of the Colorado Department of Corrections, to set the exact day.

Dunlap could avoid execution if Gov. John Hickenlooper grants him clemency. Hickenlooper plans to meet privately in coming days with victims' families, attorneys, law enforcement and others regarding Dunlap, spokesman Eric Brown said.

KDVR-TV posts, "Judge sets Nathan Dunlap execution date for August; Hickenlooper to meet with all sides," by Eli Stokols and Julie Hayden.

Hickenlooper and his staff are scheduled to meet with Dunlap’s defense team on Friday, FOX31 Denver was first to report Wednesday; they’re also scheduled to meet separately with District Attorney George Brauchler and prosecutors on the Dunlap case and families of Dunlap’s victims in the coming days.

“We represent a very remorseful client and it’s a tragedy that this thing is moving forward,” said Phil Cherner, Dunlap’s attorney, after the execution date was set.

>Dunlap, who was convicted of murdering four people inside an Aurora Chuck E. Cheese back in 1994, is one of three people sitting on Colorado’s death row.

With the date now set, Hickenlooper is suddenly facing increasing pressure to make a decision about whether or not to move forward with the execution — pressure from people on both sides of the case and from within his own cabinet.

“It took 17 years of scrutiny by every court in this land to see that this was done appropriately,” Brauchler told reporters after Wednesday’s hearing. “And the idea that a governor who ran on support of the death penalty may choose to inject himself in a process that he does not have to, to take this away from the voters, to take this away from the jurors who sat on this case — that is an injustice.”

Philip Cherner and Madeline Cohen, attorneys for Nathan Dunlap, issued this statement, "In Response to Setting of Date for Execution."

“Mr. Dunlap is guilty of committing a tragic crime for which he is remorseful. He should spend the rest of his life in prison without the possibility of parole. However, several prominent individuals here today, including faith leaders, civil rights leaders, a former prosecutor and an academic share concerns about the unfair and disproportionate use of capital punishment in Colorado. Given all that we know about this broken system, it would be unconscionable for the state to carry out this death sentence.

“It is disappointing that the state has moved ahead and set a date for the execution of Nathan Dunlap. As has been well-documented in a recent study, Colorado’s use of the death penalty is unfair and arbitrary. Despite the state’s minority 4.3% African American population, 100% of the men on Colorado’s death row are African American, which points to the racial bias inherent in our broken capital punishment system. Additionally, all the men on death row were
prosecuted by the same county, and were under 21 at the time of their crimes. These similarities reflect the incontrovertible fact that the death penalty is not applied in Colorado with proportionality, according to the crimes committed, but is sought in cases where the defendant fits a narrow profile.”

Earlier coverage of Nathan Dunlap's case begins at the link.

Continuing Coverage of Boston Bombing Case

There are new profiles of attorney Judy Clarke, recently appointed as an attorney for Dzhokhar Tsarnaev.

"Newsmaker: Death penalty lawyer Clarke 'humanizes' client and jury," is by Joseph Ax for ReutersLegal.

When death penalty expert Judy Clarke joined the defense team for the Unabomber, Ted Kaczynski, she spent months trying to establish a rapport so she could convince him to accept a plea deal that would spare him capital punishment.

Though she and his other lawyers angered Kaczynski when they sought to introduce evidence of his mental illness, he eventually pleaded guilty in 1998 and received a life sentence.

"I think she has a real gift," David Kaczynski, his brother said on Tuesday, a day after Clarke was assigned to the defense team for Boston Marathon bombing suspect Dzhokhar Tsarnaev. "Even if it's the smallest sliver of common ground, Judy's going to be able to find that. There's no doubt in my mind that Judy saw my brother's humanity despite the terrible things he'd done."

Tsarnaev, 19, is accused of setting off explosives April 15 near the finish line with his older brother, Tamerlan, killing 3 and injuring 264. He was arrested April 19 after a massive manhunt that left his brother dead following a police shootout.

And:

Colleagues said Clarke is known for her meticulous research into the lives of her clients to find possible mitigating factors, and that she possesses a sharp sense of humor and a folksy style that belies her intense, no-nonsense preparation.

"She humanizes the client. But more importantly, she humanizes the jury, the lawyers, the judges," said Gerald Goldstein, a defense lawyer who has known Clarke for 30 years. "Judy's brilliant at making people reconsider their values ... to reconsider our place in making life or death decisions."

The Daily Beast posts, "Judy Clarke, the Defense Lawyer Appointed to Defend Dzhokhar Tsarnaev," by Michael Daly.

The 60-year-old woman, who has been called the most low-profile high-profile lawyer of all time, will pair that insight with her formidable legal knowledge and courtroom mastery in an effort to save him from the executioner, just as she did some of the most reviled killers in recent history.

“In addition to being a brilliant lawyer in terms of knowing the law and persuading a jury, perhaps her most impressive quality is her ability to connect and understand individuals that the rest of the world despises,” says her friend and fellow defense attorney Laurie Shanks. “She is really able not only to gain their trust but to make their actions understandable to others.”

Shanks notes: “It’s easy to look at someone who’s done something really horrible and see a monster. It is very difficult to look at monsters like that and see a human, and Judy is able to do that. You look at Jared Loughner and say, ‘Oh my God, that guy’s crazy,’ look at Susan Smith, ‘How despicable!’ You look at the guy in Boston, ‘How could you kill an 8-year-old?’ To be able to look at them and see their humanity is really a very unusual ability and unique ... not that she condones or expects others to condone their actions.”

In young Tsarnaev’s case, that promises to be in some ways harder and in some easier than in other cases. His actions cannot be as easily ascribed to mental illness as with Loughner, but he was apparently following the lead of his older brother and not acting on his own initiative, as were Rudolph and Kaczynski. Clarke no doubt will note that the victim in the carjacking recalls that when Tamerlan Tsarnaev spoke of the marathon bombing, he spoke in the first person, saying, “I did that.”

Clarke will most likely seek to avoid a trial and negotiate a plea. She has quoted a fellow defense attorney as once advising her, “The first step to losing a capital case is picking a jury.”

"Most want death penalty for Dzhokhar Tsarnaev if he is convicted of Boston bombing," is by Jon Cohen for the Washington Post.  He's the director of polling for Capital Insight, the independent polling group of Washington Post Media.  There is an infographic available, also.

A large majority of Americans support the death penalty for the suspect in the Boston Marathon bombing should he be convicted in federal court, according to a new Washington Post-ABC News poll.

Overall, 70 percent of those surveyed say they support the death penalty for 19-year-old Dzhokhar Tsarnaev. While most Democrats and Republicans alike say they would support the death penalty for Tsarnaev, there are deep racial divisions on the matter, reflecting a common gap in public views of the death penalty itself.

And:

Majority support for the federal approach crosses party lines, with 80 percent of Democrats, 73 percent of independents and 72 percent of Republicans saying they back a civilian trial. However, Democrats are by far the most apt to support it “strongly.” Democrats are also the least likely to strongly support the use of the death penalty, although most of them do support it, at least somewhat.

The bigger divide on the death penalty is between whites and African Americans. While 75 percent of whites say they would back the use of the death penalty were Tsarnaev convicted, the support among African Americans barely goes past the midpoint: 52 percent of African Americans would support the death penalty, and 43 percent would oppose it.

Hispanics also are less likely than whites to support the death penalty in this instance: 62 percent would support it; 35 percent would oppose it.

The large gap between whites and blacks has probably more to do with the death penalty itself than this particular case. In a recent Washington Post Maryland poll, 63 percent of whites and only 37 percent of African Americans said they favor the death penalty for people convicted of murder.

"The Atlantic Wire posts, "Americans Support the Death Penalty for Dzhokhar Tsarnaev — If It Gets That Far," on the polling.  It's by Philip Bump and features infographics.

Americans seem very willing to have Tsarnaev treated as a criminal, not as some exceptional circumstance warranting extreme measures. The Post/ABC poll also suggests that America is satisfied with how the prosecution of Tsarnaev has proceeded. An even larger percentage supports trying the terror suspect in federal court, as opposed to using a military tribunal. Since Tsarnaev is a citizen, a tribunal wasn't a legal option, despite calls from Sen. Lindsey Graham that he be tried in that way. Even conservatives strongly disagreed with that idea.

"Feds May Rule Out Death Penalty to Make Tsarnaev Talk," is the New York Magazine post by Margaret Hartmann.

Federal agents were reportedly able to question Dzhokhar Tsarnaev for two days before he was read his Miranda rights and stopped talking, but they still want more information from him, and might be willing to make a deal to get it. Two government sources tell CNN that talks have been underway for the past few days to have Tsarnaev continue speaking with investigators in return for prosecutors agreeing not to seek the death penalty.

The sources stressed that talks between prosecutors and Tsarnaev's lawyers are still in the very early stages, and any deal would be a long way off. It's normal for the two sides to begin communicating at this point, and a Justice Department official denied that they're working out a deal.

There are also new developments in the case, noted in two AP filings: "Police: 3 more in custody in Boston bombings," by Rodrique Ngowi; and, "Lawyer: 2 arrested anew are suspect's friends," by Michelle R. Smith and Denise Lavoie.

Earlier coverage of the Boston Marathon bombing case begins at the link.

Colorado Case Roundup

"Judge to set Chuck E. Cheese killer Nathan Dunlap's execution dates," is Karen Augé's report for the Denver Post.

Some 13 years after he killed three teenagers and their 50-year-old manager as they were cleaning up and closing an Aurora Chuck E. Cheese's restaurant, Nathan Dunlap is expected to learn on Wednesday when he will be executed for the crime.

Dunlap will appear before Judge William Sylvester in an Arapahoe County district court, where the judge will schedule an execution date at least 90 days but no more than 120 days in the future. The exact date will not be disclosed, but the judge will set a one-week window.

It will mark the first time a death date has been set in Colorado since the October 1997 execution of killer Gary Davis.

But few expect that Dunlap will actually die during the week Sylvester sets.

A number of issues remain to be resolved in the case, including an appeal by Dunlap's attorneys to unseal the secret Department of Corrections document that describe how an execution will be carried out. A state appeals court has already ruled against Dunlap in that case.

In addition, his attorneys have said they will seek clemency from Gov. John Hickenlooper.

AP coverage is, "Execution Week to be Set for Inmate Convicted of Fatally Shooting 4 at a Colorado Pizza Restaurant," by Dan Elliot.  It's via the Republic.

Colorado has executed only one person in more than four decades — the state's last execution was in 1997 when Gary Lee Davis was put to death for his conviction in a 1986 slaying. In 2003, three inmates had their death sentences commuted to life in prison without parole after the U.S. Supreme Court ruled that juries, not judges, should impose capital punishment.

Three men are now on Colorado's death row — Dunlap, Sir Mario Owens and Robert Ray. Each was sentenced by a jury.

Dunlap can still ask Gov. John Hickenlooper for clemency. His lawyer, Phil Cherner, said a clemency request would be submitted after the judge sets a week for an execution.

Hickenlooper's spokesman, Eric Brown, said the governor hasn't decided whether he would grant clemency.

KDVR-TV reports, "Expert: Hickenlooper May Commute Chuck E. Cheese Shooter's Execution," by Will C. Holden.

The execution date is expected to be set for this summer, but there’s a chance Governor John Hickenlooper will commute the death sentence, instead giving Dunlap life without parole.

“He (Hickenlooper) is ambivalent about it now, and he’s being pushed by several people to commute the death penalty of Nathan Dunlap,” criminal defense lawyer Dan Recht said. “He may well do that.”

If he does, Recht said, it might send the state of Colorado mixed messages, especially with the looming trial of accused Aurora theater shooter, James Holmes. Prosecutors have stated intentions to will seek the death penalty for Holmes, as well.

“Would Hickenlooper also consider commuting a death penalty for James Holmes?” Recht asked. “It’s an interesting question, and it could leave people wondering about the viability of the death penalty, which of course most of the state legislature is wondering about.”

Also from Colorado, there is news on the Aurora movie theater shooting case of James Holmes.  ReutersLegal posts, "Accused Colo. gunman's lawyers may enter insanity plea over his objections," by Keith Coffman.

Lawyers for accused Colorado theater gunman James Holmes are questioning the constitutionality of the state's insanity defense law, court records released on Tuesday show, and raising the possibility that they may enter an insanity plea over his objections.

Public defenders for Holmes, 25, said in a filing that there is "significant uncertainty and confusion" in Colorado law surrounding an insanity defense in the context of a case where prosecutors are seeking capital punishment.

That puts defense attorneys in a quandary, they wrote, because they cannot vouch for "the cognitive ability of their mentally ill client to understand complex legal concepts that few lawyers understand."

"That is one reason why Colorado's insanity statute provides a mechanism for entering (an insanity plea) over the objections of a defendant in some circumstances."

Earlier coverage of the Nathan Dunlap and James Holmes cases, at the links.  Also available, coverage of the Colorado repeal legislation considered earlier this year.

Updated Coverage From Boston

MSNBC posts, "Sentence the Boston bomber to meaninglessness, by University of St. Thomas Law School Professor Mark Osler.  He's a former federal prosecutor.

Understandably, there are already calls for the execution of Dzhokhar Tsarnaev, who is now charged with the bombings of the Boston Marathon. He is alleged to have planned and executed the horrific bombings with his brother, Tamerlan, who died in a subsequent shootout with police.

Tsarnaev undoubtedly deserves the most severe sentence available if he is found guilty (and it is hard to imagine another outcome). However, that sentence, for this defendant, is not execution. From everything we know about Tsarnaev, his principal fear is not death. After all, he walked the streets with a ticking time bomb strapped to his back, engaged the police in a shootout, and likely tried to kill himself as he was being captured. None of these actions are consistent with a man who bears a deep fear of death.

Rather, what someone like Tsarnaev probably fears most is meaninglessness.

Osler is a regular contributor at HuffPost.

"Will Prosecutors in the Boston Marathon Bombing Case Seek the Death Penalty?" is by Matt Vasilogambros for National Journal.

Federal officials will likely seek the death penalty for the surviving suspect of the Boston Marathon bombings, potentially making him the first terrorist to be executed since Timothy McVeigh nearly 12 years ago.

For a man who is suspected of killing three people, including an 8-year-old boy, and with plans to carry out further attacks in New York City, the death penalty only seems justified, some former prosecutors say.

This will be a textbook example of when the death penalty is used against federal terrorism suspects, said former Clinton Justice Department official Beth Wilkinson, one of Washington's most promiment attorneys and the woman who successfully argued for the execution of McVeigh for carrying out the Oklahom City bombing in 1995. 

And:

One of the biggest differences between this case and the one against McVeigh, Wilkinson said, is that it seems Tsarnaev is cooperating and talking with officials, whereas the Oklahoma City bomber exercised his right to remain silent through the entire trial. 

Not all former Justice Department officials think prosecutors should take this route. Joseph DiGenova, who was appointed by Ronald Reagan to be the U.S. attorney for the District of Columbia, said he would try to get Tsarnaev to plead guilty and avoid execution.

“If I was a prosecutor, I would want to get a deal so that he tells us everything we need to know in exchange taking the death penalty off the table and getting a full acceptance of responsibility,” he said.

"Boston suspect's defense team gets major boost," is the AP report by Denise Lavoie.  It's via Huffington Post.

The defense team representing the Boston Marathon bombing suspect got a major boost Monday with the addition of Judy Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for several high-profile clients, including the Unabomber and the gunman in the rampage that injured former Arizona Rep. Gabrielle Giffords.

Clarke's appointment was approved Monday by U.S. Magistrate Judge Marianne Bowler.

The judge denied, at least for now, a request from Miriam Conrad, the public defender of 19-year-old suspect Dzhokhar Tsarnaev, to appoint a second death penalty lawyer, David Bruck, a professor at Washington and Lee University School of Law.

And:

Harvard Law School professor Alan Dershowitz said the decision to put Clarke on Dzhokhar Tsarnaev's defense team shows "they are going to litigate hard against the death penalty."

"They are not going to put on a jihadi defense," he said. "The client wants to live, and he wants to avoid the death penalty. They are not going to say, `I want to die, I want to join my brother.' "

The order appointing Clarke is available in Adobe .pdf format, via Politico.

Additional coverage of the appointment includes:

"Death penalty expert is appointed to Tsarnaev defense team," by Martin Finucane for the Boston Globe.

"Olympics Bomb Lawyer Chosen to Defend Suspect in Boston Bombing," by Erik Larson for Bloomberg News.  It's via the San Francisco Chronicle.

ReutersLegal posts, "Death penalty expert Clarke joins defense of Boston bomb suspect," by Terry Baynes.

Earlier coverage of the Boston Marathon boming case begins at the link.

Last Friday, Clarke gave the keynote address at the Loyola Law School Los Angeles, Fidler Institute on Criminal Justice's annual symposium.  AP Special Correspondent Linda Deutsch covered Clarke's speech.  The report is via ABC News.

The names of her past clients — Susan Smith, Unabomber Theodore Kaczynski and most recently, Tucson shooter Jared Loughner — run like a list of the most reviled in American criminal history. But she did not say whether she would add to that list the latest name in the news: The suspect in the Boston Marathon bombing.

Clarke was reticent throughout her keynote speech and declined to take questions from the audience. Instead, she talked about how she had been "sucked into the black hole, the vortex" of death penalty cases 18 years ago when she represented Smith, who drowned her two children.

"I got a dose of understanding human behavior and I learned what the death penalty does to us," she said. "I don't think it's a secret that I oppose the death penalty. "

She saved Smith's life and later would do the same for Kaczynski, Loughner and the Atlanta Olympics bomber Eric Rudolph. All received life sentences instead of death.

Before an audience of lawyers, judges and law students at Loyola Law School's annual Fidler Institute, Clarke shared her approach in handling death penalty cases.

"The first clear way death cases are different is the clients," said Clarke, now a visiting professor at Washington and Lee University School of Law in Virginia. "Most have suffered from serious severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being."

Florida Bill Heads to Governor

"Stop death penalty bill, Gov. Scott," is the editorial in today's Miami Herald.

In its rush to secure “justice,” the Florida Legislature has fast-tracked death-penalty legislation at the peril of the innocent.

House Bill 7083, the “Timely Justice Act,” is an attempt to stop frivolous appeals, something everyone can agree on. Sponsored by Rep. Matt Gaetz, R-Shalimar, and Sen. Joe Negron, R-Palm City, the legislation requires the governor to sign a death warrant within 30 days after a state Supreme Court review, with the execution taking place within 180 days after that. It does away with certain types of defenses in death penalty cases.

Whoa.

The Florida Supreme Court already has appointed a committee to go over existing judicial rules and see how cases can move more quickly. That study will be released in September.

So why is the Legislature jumping ahead — the House passed the bill last week and the Senate gave its nod on Monday — without all the facts?

And:

Already, 24 wrongfully convicted Death Row inmates have been cleared since the death penalty was reinstated in 1973 — the most of any of the 32states that impose the death penalty. Another 75 prisoners have been executed in Florida. As Mark Elliott, director of Floridians for Alternatives to the Death Penalty, points out, “That’s one exoneration for every three executions.”

That should give every Floridian pause.

Frank Lee Smith died of cancer on Death Row after 14 years in prison. Sadly, after his death, DNA testing proved he was innocent and also identified the real killer. What kind of justice did Mr. Smith get?

There are heinous crimes that require the death penalty, but the evidence must be air tight. It’s not in many cases. The American Bar Association released an exhaustive report in 2006 pointing out the problems, including racial disparities in meting out justice. For eight years little has been done and now Tallahassee lawmakers are going full speed ahead in the dark.

"Senate Passes Bill Speeding Up Capital Punishment," is the AP report by Bruce Schreiner, via the Lakeland Ledger.

Urged to fix a "mockery" to justice, the Florida Senate passed legislation Monday to accelerate the state's capital punishment process that was criticized for allowing some condemned inmates to languish for decades on death row.

The Senate passed the bill 28-10, sending the measure to Gov. Rick Scott for his consideration. The House passed the Timely Justice Act of 2013 (HB 7083) by an 84-34 vote last week.

The bill creates tighter time frames for appeals and postconviction motions and imposes reporting requirements on case progress.

It also re-establishes a separate agency for North Florida to provide appellate-level legal representation to inmates sentenced to death and requires them to "pursue all possible remedies in state court."

And:

Florida has 405 inmates on its death row, more than any other state except California. It takes an average of 13 years for an inmate to move from sentencing to execution.

The bill's critics worried that speeding up the process could condemn some innocent people to the ultimate punishment.

"Once the execution is over, there's no going back," said Democratic Sen. Maria Sachs.

"Bill reducing delays in implementation of death penalty approved," is the News Service of Florida report by Jim Saunders.  It's via the Miami Herald.

State lawmakers Monday gave final approval to a proposal aimed at reducing delays in carrying out the death penalty, with supporters saying they want justice for victims’ families — but critics warning about executing innocent people.

Sen. Joe Negron, a Stuart Republican who sponsored the measure, said some inmates have been on Death Row for more than 30 years.

"That isn’t justice,’’ Negron said. "That’s a mockery of the court system."

But other lawmakers pointed to scientific advances, such as DNA evidence, that have helped clear some inmates who have been imprisoned for long periods.

"I just think this swiftness does not necessarily equate to fairness,’’ said Sen. Arthenia Joyner, D-Tampa.

Senators voted 28-10 on Monday to approve the bill (HB 7083), which passed the House last week. It now goes to Gov. Rick Scott.

The bill focuses, at least in part, on ending delays in what is known as the "post-conviction" legal process, which starts after the Florida Supreme Court upholds death sentences in initial appeals. The post-conviction process can involve appeals about issues such as whether defendants have received ineffective legal representation.

Among other things, the bill seeks to ensure that attorneys have "actual" conflicts of interest before being replaced in death-penalty cases. Replacing attorneys can cause delays.

Also, the bill would take steps to prevent attorneys from representing Death Row inmates if the attorneys have had problems in earlier capital cases. The bill would bar lawyers from working on death-penalty cases for five years if courts have found that they provided deficient representation twice.

Earlier coverage of the Florida legislation begins at the link.

Nebraska Lethal Injection Drug News

"Portion of Nebraska's supply of lethal injection drug set to expire," is the Lincoln Journal Star report by Kevin O'Hanlon.

As a federal appeals court considers whether Nebraska and other states must surrender their foreign-made supplies of a lethal injection drug that is becoming increasingly difficult to obtain, part of Nebraska's supply is set to expire.

Nebraska has two batches of sodium thiopental, one of which expires in May and the other in December. It's highly unlikely the state will be able to replace the drug if the appeals court orders its surrender.

"No state has used sodium thiopental for two years," said Richard Dieter, executive director of the Death Penalty Information Center. "Because of a stoppage by the manufacturer, the U.S. supply has reportedly dried up, and existing supplies are almost all expired. A federal court has banned its importation from overseas without FDA approval, and that is not happening."

A three-judge panel of the U.S. Court of Appeals District of Columbia Circuit recently heard arguments in a case stemming from a ruling last year by U.S. District Judge Richard Leon, who said the U.S. Food and Drug Administration must notify immediately state prison officials in possession of any foreign-manufactured sodium thiopental that using such drugs is against the law and the drugs must be returned to the FDA.

Nebraska and several other states in which the drug is part of the execution protocol were forced to buy it overseas when the last U.S. manufacturer quit making it in 2010 because of death penalty opposition from overseas customers. Nebraska's sodium thiopental was made by a Swiss company and came in two batches.

Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who say the foreign-made sodium thiopental is an unapproved drug. But FDA lawyers point to a 1985 U.S. Supreme Court ruling in the case Heckler v. Chaney that said the FDA's decision to not take enforcement action in a lethal injection drug case was not subject to judicial review.

And:

Nebraska's execution protocol could be changed, but not without considerable effort. It was formulated by prison officials and vetted through a series of public hearings. The final rules were reviewed by the attorney general and approved by the governor.

Earlier coverage of Nebraska leathal injection issues, repeal legislation in the state legislature, and the FDA litigation, at the links.  Related posts are in the lethal injection category index.

Moses Harrison, 1932-2013

"Former Illinois Chief Justice Moses Harrison dies," is the AP filing, via the State Journal-Register of Springfield, Illinois.

The Illinois Supreme Court has announced the death at age 81 of former Chief Justice Moses Harrison.

And:

Harrison began his career on the bench in 1973 as a circuit court judge. He was serving on the 5th District Appellate Court when he was elected to the Supreme Court in 1992. He served as chief justice from 2000 to 2002.

Harrison perhaps is best known for a dissenting opinion in the death penalty case People v. Bull in November 1998. Harrison urged abolition of the death penalty, fearing an innocent will eventually be put to death. Illinois' death penalty was abolished in 2011.

The Chicago Tribune reports, "Former chief justice of Illinois Supreme Court opposed death penalty."

Former Illinois Supreme Court Justice Moses Harrison was a longtime foe of the death penalty.

During his tenure as chief justice of the state high court, he appeared on the TV news show "60 Minutes" with Mike Wallace to discuss the state's death penalty, which Illinois lawmakers eliminated in 2011. He also appeared in the movie "Too Flawed to Fix: The Illinois Death Penalty Experience."

Mr. Harrison wrote in a dissenting opinion in a late 1990s death penalty case that "the execution of an innocent person is inevitable" and that "despite the courts' efforts to fashion a death penalty scheme that is just, fair and reliable, the system is not working."

When asked once how he saw his role, he said, "It is to protect ordinary citizens against wrongdoing by the government, large corporations and powerful individuals."

Related posts ar in the in memoriam category index.

New Challenge to Arkansas' New Lethal Injection Law

The Arkansas Democrat-Gazette reports, "6 on death row sue, say drugs a gamble," by John Lynch.

Six death row inmates sued the state Friday, claiming that Arkansas' new lethal injection procedure probably will not kill them.

In a lawsuit filed in Pulaski County Circuit Court, inmates Jason McGehee, Stacey Eugene Johnson, Jack Harold Jones, Bruce Earl Ward, Kenneth Williams, and Marcel Williams ask the court to declare the new procedure illegal and block the Arkansas Department of Corrections from using it.

The new lethal injection procedure relies on an untested drug barred by federal regulators, the inmates claim in their lawsuit.

The plan, which would use an anti-anxiety drug followed by a barbiturate, is more likely to induce uncontrollable behavioral disturbances and inflict brain damage on inmates than it is to execute them, the convicted killers argue in the 34-page suit.

They contend the drug combination is the equivalent of a science experiment, which renders it illegal.

"There is little to no data about how this combination of drugs given in this quantity will affect the prisoners," attorney Jeff Rosenzweig wrote in the lawsuit.  "The 2013 Lethal Injection Procedure is totally novel and essentially amounts to carrying out an experiment on the prisoners.

"Under its new statutory authority to choose from a broad range of drugs, the [state] has chosen in its 2013 Lethal Injection Procedure a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure and that will severely and permanently injure - but may not kill - the prisoners," the lawsuit adds.

And:

The case was assigned to Circuit Judge Tim Fox, who presided over the last two death row legal challenges to lethal injection procedures.

"Death-row inmates sue to void new lethal-injection law," is the Arkansas News Bureau report.

A lawsuit filed Friday on behalf of six condemned killers contends Arkansas’ new lethal injection law is unconstitutional and seeks to block executions.

The lawsuit filed in Pulaski County Circuit Court contends that the new law, adopted this year in response to a state Supreme Court decision that declared a 2009 law unconstitutional, violates death-row inmates’ right to die quickly by allowing prison officials to use a slow-acting barbiturate in a mix of chemicals for lethal injections.

The law in effect when the crimes were committed required the state to use fast-acting chemicals, and the new law violates “the well-settled state law principle that a sentence must be in accordance with the statutes in effect on the date of the crime,” according to the lawsuit.

The new execution procedure authorized in Act 139, the 2013 Method of Execution Act, permits use of an anti-anxiety drug and phenobarbital, a slow-acting barbiturate. The lawsuit termed the concoction “a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure, and that will severely and permanently injure — but may not kill — the prisoners.”

“We’re asking for a declaration that the new statute and the procedures that have been promulgated under it are unconstitutional and illegal, and we’re asking a judge to prohibit any executions,” said Little Rock lawyer Jeff Rosenzweig.

The AP filing is, "Inmates: New Ark. execution law unconstitutional," by Chuck Bartels, via the San Francisco Chronicle.

Arkansas' just-approved execution law is as badly flawed as the version it replaced, according to a lawsuit filed Friday that argues the new law is unconstitutional and puts inmates at risk for an agonizing death.

The lawsuit was filed in Pulaski County Circuit Court on behalf of six death row inmates who argue that the law approved by legislators last month still violates existing law and is unconstitutional. The Arkansas Supreme Court last year tossed out the state's previous execution law, saying the Legislature had ceded too much control to Correction Department administrators in carrying out executions.

Arkansas hasn't executed an inmate since 2005 due to court challenges, and inmates' attorney Jeff Rosenzweig said he expects this legal effort to kick around the courts for quite a while.

"I think these are meritorious claims that I think will take the courts a while to sort out. We're dealing with a brand new statute, new procedures and a lot of complicated evidentiary issues," Rosenzweig said.

The suit argues that the new procedures from the Legislature call for the use of an anti-anxiety drug and phenobarbital, a slow-acting barbiturate, in "a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure, and that will severely and permanently injure — but may not kill — the prisoners."

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

Federal District Court Overturns Pennsylvania Conviction & Death Sentence

"Judge overturns conviction in slaying of two cousins," is the rerport by Holly Herman for the Reading Eagle.

A federal judge has overturned the first-degree murder conviction of Shawnfatee M. Bridges in the 1996 slayings of two Reading cousins because prosecutors did not provide the defense with police records that could have been used to impeach a key witness during the trial.

U.S. District Judge Anita B. Brody on Tuesday also overturned the death sentence because the defense didn't call an expert psychiatric witness during the sentencing hearing.

Brody ordered prosecutors to release Bridges, 36, from the State Correctional Institute at Graterford by Aug. 21 unless he is retried.

And:

In a 114-page opinion, Brody concluded that former District Attorney Mark C. Baldwin did not provide the defense with police records for key prosecution witness George Robles. She said the information linking Robles to four other shootings could have been used to impeach Robles' testimony.

Robles, now 38, of Reading testified that the slayings were in retaliation for the Banks cousins breaking into Bridges' home.

"There is no doubt that the police records relating to Robles are impeaching, and this is favorable to Bridges," Brody wrote. "They present evidence that Robles was involved in some way in at least four shootings in an 18-month period."

The AP filign is, "Pa. man's death sentence nixed," via Philly.com.

A federal judge has thrown out the death penalty given to an Pennsylvania man who's spent 15 years on death row.

District Judge Anita Brody also overturned Shawnfatee Bridges' murder conviction because prosecutors did not provide the defense with police records that could have impeached a key witness

And:

District Attorney John Adams says he'll appeal the ruling. He is also preparing to retry the case.

Related posts are in the prosecutorial misconduct category index.

Florida Legislation Clears House

"Florida House approves bill to speed up capital punishment," is the AP report by James L. Rosica, via the Bradenton Herald.

The Florida House has passed a bill that would speed up the state's capital punishment process.

The House passed the Timely Justice Act of 2013 (HB 7083) by a vote of 84-34 on Thursday. The bill goes to the Senate, where a similar measure had been on the agenda Thursday. That chamber adjourned for the day without taking action.

The bill, sponsored by Republican Rep. Matt Gaetz of Fort Walton Beach, creates tighter time frames for appeals, post-conviction motions and imposes reporting requirements on case progress.

It also re-establishes a separate agency for north Florida to provide appellate-level legal representation to inmates sentenced to death, and requires them to "pursue all possible remedies in state court."

The Miami Herald report is, "House votes to speed up executions," by Mary Ellen Klas.  A similar version is available at the Tampa Bay Times.

Despite warnings that Florida will shrink the appeals of the innocent, the Florida House passed a bill Thursday designed to accelerate the execution of many of the 404 inmates on Florida’s death row.

By a 84-34 vote, the House passed HB 7083, the “Timely Justice Act of 2013” and sent it to the Senate, where a companion measure is expected to be taken up Friday.

Sponsored by Rep. Matt Gaetz, R-Shalimar, and Sen. Joe Negron, R-Palm City, the bill creates a new process that establishes a system to determine which inmates on death row have exhausted their post-conviction appeals and requires the governor to sign a death warrant within 30 days, after a Supreme Court review. The execution would then have to take place within 180 days.

The process would accelerate the execution for some, “but only those whose guilt or innocence is not in question,’’ Gaetz said.

The measure prohibits lawyers for death row inmates from using certain defenses in capital cases, requires that the North Florida region be allowed to hire full-time lawyers to provide defense in capital cases, and it puts penalties on lawyers accused of being ineffective counsel.

Florida’s inmates on death row wait an average of 13 years before they are executed. Among the 404 people awaiting execution now, 155 have been there for more than 20 years and 10 have been there for more than 35 years.

And:

The Florida Supreme Court has appointed a committee to revise the existing rules to ensure that capital cases can move more quickly through the court system and plans to release its study in September.

"House Backs Speeding Up Death Penalty," is by the News Service of Florida, via North Escambia.

After a debate that touched on justice, innocence and the Bible, the Florida House on Thursday approved a bill aimed at reducing delays in carrying out the death penalty.

Supporters of the bill (HB 7083) pointed to convicted murderers who, in some cases, have been on Death Row for more than 30 years. Rep. Matt Gaetz, a Fort Walton Beach Republican who is the bill sponsor, said it is a “blight on our whole justice system” when people are on Death Row for decades with no questions remaining about their guilt.

And:

But opponents said they fear that trying to shorten the appeal process could lead to innocent people being executed, particularly with scientific advances that have helped exonerate Death Row inmates.

“What in the world is the hurry?” asked Rep. Elaine Schwartz, D-Hollywood.

The bill focuses, at least in part, on what is known as the “post-conviction” legal process, which starts after the Florida Supreme Court upholds death sentences in initial appeals. The post-conviction process can involve appeals about issues such as whether defendants have received ineffective legal representation.

Approved in an 84-34 vote, the bill would make a series of changes to try to reduce delays and end what one lawmaker described as gamesmanship in post-conviction proceedings.

Earlier coverage of Florida legislation begins at the link.

Colorado Appeals Court Rejects Lethal Injection Challenge

"Appeals court rejects Nathan Dunlap's secrecy challenge," is the Denver Post report by Karen Augé.

An appeals court has denied condemned killer Nathan Dunlap's effort to force the state Department of Corrections to throw out its procedures for carrying out an execution and create the plans from scratch, this time with public input.

The Colorado Court of Appeals decision, released Thursday, affirms a lower court's ruling.

Dunlap's legal team had argued that a DOC document spelling out exact details of how an inmate would be executed should be tossed out because it was compiled without public input and wasn't available for public scrutiny.

Writing for the court majority, Judge Jerry Jones said the legislature gave the DOC's executive director broad powers to manage inmates, and that includes carrying out death sentences.

Dunlap's legal team said they will appeal.

"We believe that the court is wrong to find that lethal injection procedures in Colorado are exempt from the Administrative Procedures Act," attorney Jessica Yates said in a statement.

"Court rejects execution procedure challenge," is the AP report, via KUSA-TV.

Condemned killer Nathan Dunlap has lost his bid to challenge the procedure that Colorado will use to execute him.

The Colorado Court of Appeals Thursday rejected Dunlap attorneys' argument the state developed the lethal injection execution procedure without public input. The court sided with the state that argued the lethal injection execution procedure falls under the duties of the prisons director and don't require public input.

The ruling in Dunlap v. Colorado Department of Corrections is available in Adobe .pdf format.

Dunlaps attorneys, James D. Kilroy and Jessica E. Yates of Snell & Wilmer have issued, "Statement from Attorneys for Plaintiff  Nathan Dunlap in Response to Today’s Ruling from the Court of Appeals on the Administrative Procedures Act."  Here's the full text:

“We believe that the court is wrong to find that lethal injection procedures in Colorado are exempt from the Administrative Procedures Act. We intend to appeal this decision to the Colorado Supreme Court. No execution should be allowed to take place in Colorado until – at a minimum – that court has had a full and fair opportunity to review this issue.

As Judge Richman wrote in his dissent from the court’s ruling today: ‘One of the purposes of the APA is to ensure that state agencies do not restrict the freedom of any persons contrary to the public interest . . . and to permit public input and comment on proposed rules being considered by the agencies of our state government. . .The method of carrying out a death sentence by lethal injection is a matter of public interest and a matter on which the public should have the opportunity for input.’

Lethal injection rules and procedures in Colorado are shrouded in secrecy. The use of lethal injection represents the most extreme act a government can take against a citizen. Surely, in this case, the public, the courts and the press must have access to complete information in order have input into such a major policy decision, and to ensure that the state's actions fully comport with the law. As Judge Richman observed in his dissent, ‘[t]he fact that the procedures [for lethal injection executions] are not disclosed in the regulation – nor were they disclosed to the courts that have decided this case, or even the assistant attorney general who represents the DOC – makes it particularly troublesome for us to make an informed decision.’

The public, too, cannot make an informed decision about this important issue under these circumstances.”

Earlier this week, KDVR-TV reported, "Hickenlooper ‘gathering information’ as Dunlap execution ticks closer," by Eli Stokols.  There is video at the link.

Colorado Gov. John Hickenlooper told FOX31 Denver Monday that the looming execution of Nathan Dunlap, the Chuck E. Cheese killer, is the hardest decision he’s faced yet as governor.

A district judge is set to schedule an execution date for Dunlap, who murdered four people inside an Aurora Chuck E. Cheese 20 years ago, on May 1; and that execution date would likely be some time in August.

Phil Cherner, who represents Dunlap, told FOX31 Denver Monday that he hasn’t contacted the governor’s office yet, but that he will be asking Hickenlooper to commute his client’s death sentence if and when an execution date is set.

Hickenlooper has known this moment was approaching; and he’s been grappling with the issue for the last nine months.

And:

A month ago, Hickenlooper told House Democrats he was likely to veto legislation that would have repealed Colorado’s death penalty; the bill’s sponsor, Rep. Claire Levy, was steamed because she introduced the bill believing that Hickenlooper would sign it if it got to his desk.

“I thought we’d been pretty clear that we had real concerns with the bill,” Hickenlooper said. “I don’t think the people throughout the state, at this moment at least, are there yet.”

But unlike most policy decisions, capital punishment doesn’t break down party lines — it’s a political question that is, for many, deeply personal. And there’s no poll showing a broad majority on either side of the issue, as there’s been in support of universal background checks and civil unions, policies the cautious governor has backed this year.

That makes the death penalty an awkward issue for Hickenlooper, a personable but shrewdly political executive who values consensus above all.

Earlier coverage of Nathan Dunlap's case begins at the link; also available, coverage of the Colorado repeal legislation.

California Legislation

The San Diego Union-Tribune reports, "Senator Wants Swifter Death Penalty Reviews," by Michael Gardner.

State Sen. Joel Anderson, R-La Mesa, is carrying separate measures to speed up death penalty reviews, including what will likely be a controversial proposal to bring back the gas chamber.

“Removing unnecessary impediments to carrying out the punishment meted out by judges and juries will ensure timely justice,” Anderson said in a statement.

The gas chamber provisions tucked into Senate Bill 779 drew a sharp rebuke from the San Diego chapter of the American Civil Liberties Union.

And:

In addition to Senate Bill 779, Anderson’s Senate Constitutional Amendment 13 would allow appellate courts to hear death penalty appeals. Currently, those cases go straight to the state Supreme Court.

The amendment would require a two-thirds vote of the Legislature to get on the ballot. Democrats, who command strong majorities in both houses of the Legislature, have shown little support for overhauling the death penalty process.

Earlier coverage from California begins at the link.  Related posts are in the state legislation category index.

Kansas DA to Retry Case, Rather Than Appeal

The Topeka Capital-Journal reports, "D.A. won't challenge new trial order for Cheatham; New trial for convicted killer must start 90 days after high court mandate."  It's by Sherman Smith.

The Shawnee County District Attorney’s Office said Tuesday it would be “ill-advised” to appeal Phillip Cheatham’s overturned conviction in a 2003 murder case.

The decision clears the way for a new trial after the Kansas Supreme Court’s ruling in January that Cheatham had received ineffective assistance from his attorney. District Attorney Chad Taylor said in a news release Tuesday he was “extremely disappointed” by the court’s decision.

Taylor had announced his intention in early February to appeal the Kansas Supreme Court decision to the U.S. Supreme Court, and the deadline to do so is Thursday. But “after exhaustive research” of case law from across the nation, he changed his mind.

And:

Among the most serious problems was Hawver informing jurors of Cheatham’s 1994 manslaughter conviction, which prosecutors wouldn’t have been allowed to mention. Hawver told jurors Cheatham was a “professional drug dealer” and “shooter of people.”

Because of those comments, the high court said in its ruling this year, “our confidence in the outcome of the jury’s verdict is shaken to its core. These particular errors cannot be excused and require a new trial.”

Earlier coverage of the Philip Cheatham case begins at the link; also available, non-case related news from Kansas.

Delaware Repeal Bill Gets House Hearing Today

"House panel takes up death penalty bill," is the AP report, via WDEL-AM.

A state House committee is considering a bill to repeal Delaware's death penalty.

The measure, to be considered today, barely cleared the Senate last month on an 11-10 vote, even after the sponsor removed a controversial provision that would have spared the lives of 17 inmates awaiting execution in Delaware.

Supporters of the bill argue that the death penalty is morally wrong, racially discriminatory, ineffective as a deterrent to violent crime and far more costly than sentencing killers to life in prison without parole.

Today's Wilmington News Journal publishes the OpEd, "Costs of imposing death penalty outweigh benefits," by Judge Norman Barron, now retired.

At one time in my career, I was referred to as “the hanging judge” due to my willingness to impose death sentences in capital murder cases. I sentenced five defendants to death in Delaware, and two thus far have been executed. (A third had his death sentence reduced on the eve of execution to life in prison without possibility of release based upon a curious recommendation of the Board of Pardons.) I have no doubt these murderers committed the crimes for which they were convicted and that they deserved the sentences which I imposed based upon the law, the evidence and the sentencing recommendation of the jury. Nevertheless, having personally observed the exercise of the death penalty statute over the past two decades, I now conclude that the process under that law is flawed.

I believe the application of the death penalty is quirky and capricious. In other words, it is impossible to justify why some murderers receive the death penalty while others, whose crimes are arguably worse in degree or savagery, do not. Beyond the hit-or-miss reality of the death penalty, an even stronger reason exists, in my mind, for my opposition to its application.

Strictly on a cost-benefit analysis, the costs of imposition of the death penalty far outweigh the benefits of its application. Recent studies in California, Kansas and Maryland have all confirmed that the death penalty costs much more than life imprisonment.

And:

In Delaware, if a convicted murderer in a capital case does not receive a death sentence, he receives an automatic sentence of life imprisonment without the possibility of parole or any type of early release. Such a sentence ensures that the defendant is locked away in a state prison until he dies. There is nothing incompatible with this type of life sentence and being a law-and-order conservative on matters of crime and punishment, which I still consider myself to be.

In this age of shrinking budgets and increased costs, the time has come, in my view, to adopt a more enlightened approach to criminal justice. Therefore, I urge the general assembly to consider favorably the death penalty repeal bill now before it and for the governor to sign it into law this year.

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

News Coverage of the Connecticut Supreme Court Oral Arguments

AP coverage is, "Connecticut Supreme Court weighs death penalty repeal," filed by Dave Collins.  It's via the Day.

Connecticut's repeal of the death penalty for future murders last year violates the constitutional rights of the 11 men on the state's death row who still face execution, a public defender told the state Supreme Court on Tuesday.

The seven justices heard nearly 90 minutes of arguments on the repeal, which abolished capital punishment for all murders committed after April 24, 2012. The high court is expected to take several months to issue a ruling.

Tuesday's arguments came in the case of former Torrington resident Eduardo Santiago, who was sentenced to death for killing a man in West Hartford in 2000 in return for a pink-striped snowmobile with a broken clutch. The state Supreme Court overturned his death sentence last year and ordered a new penalty phase, two months after the repeal took effect.

The case has drawn interest from across the country.

A group of legal scholars from several states filed a brief with the Supreme Court opposing Santiago's execution, saying no state has ever executed anyone after repealing the death penalty. They said his execution would violate both the U.S. and Connecticut constitutions.

The repeal eliminated the death penalty while setting life in prison without the possibility of release as the punishment for crimes formerly considered capital offenses. The law was passed after Joshua Komisarjevsky and Steven Hayes were sentenced to lethal injection for killing a mother and her two daughters in a 2007 home invasion in Cheshire that made national headlines.

The Hartford Courant reports, "Supreme Court Scrutinizes Inmate's Challenge To Provision In Death Penalty Repeal," by Alaine Griffin.

In highly anticipated arguments Tuesday before the Connecticut Supreme Court, a convicted killer's lawyer offered what he called a simple solution to settling the controversy over a death penalty repeal that excluded inmates already on death row.

"You send it back to the legislature and you tell them this provision is unconstitutional and then they can do what they want to do," Assistant Public Defender Mark Rademacher said.

But Supreme Court Justice Flemming L. Norcott Jr. questioned such simplicity.

"Conceivably you could end up winning this battle and losing the overall war with respect to the future of the death penalty, right?" Norcott asked.

Rademacher replied: "I think the epilogue would be the legislature, put to the choice of no repeal or repeal for all, would say repeal for all."

Legislators, Rademacher said, can agree or disagree about whether the death penalty is a good idea. But once lawmakers say there is no more death penalty, there should be agreement that decisions about who lives and who is executed should not be based upon "something as arbitrary" as the date of the repeal, he said.

And:

Senior Assistant State's Attorney Harry Weller argued in support of the new law, saying prospective repeal was the legislature's intent. He said it is constitutional and argued against the justices ruling on just part of the law. If the effective date of the law is found unconstitutional, the law must be struck in its entirety, he said.

Weller said he saw two outcomes to Tuesday's arguments, "and neither of them get the defendant what he wants." The first outcome, he said, would be to affirm the constitutionality of the new law. The second outcome would be a ruling that the new law is unconstitutional.

"But if you do that, the entire act is unconstitutional," Weller said. "This defendant remains subject to the death penalty and the death penalty remains in place."

"Justices Hear Arguments in Death Penalty Repeal," by Hugh McQuaid for CT News Junkie.

In their questions, the Supreme Court justices seemed to be looking at the intent of the lawmakers who passed the legislation for guidance.

Lawmakers discussed the fate of the 10 men currently on death often during the debate on the abolition bill. At one point legislators considered adding language which would have required that the repeal be struck down if the court did not uphold their death sentences under the new law.

Sen. Eric Coleman, co-chairman of the Judiciary Committee, said the amendment was unnecessary because their current sentences were permitted under the prospective law.

Justice Richard Palmer asked Rademacher if Coleman’s statements did not establish legislative intent on the issue.

“We do rely on statements of [legislative] sponsors, whether or not we should is another matter, but we almost always do,” Palmer said. “In [Coleman’s view] that was the intent of the law.”

Weller agreed, saying the legislature never would have passed the bill without the prospective clause and there was no mechanism for severing one part of the bill from the other.

The Litchfield Register Citizen publishes New Haven Register coverage, "Connecticut Supreme Court hears arguments on death penalty repeal in case of Torrington man," by Mary E. O’Leary.

Assistant Public Defender Mark Redemacher argued that the death penalty, which continues to apply to the 11 men on death row, but not for any future murderers, is unconstitutional because it is arbitrary and abolition of the death penalty should apply across the board. Lawmakers have conceded, however, that the prospective aspect was necessary in order to ensure enough votes at a time when adjudication of the two defendants in the triple murder of the Cheshire Petit family home invasion case was still raw.

Gov. Dannel P. Malloy, the first Democrat elected governor in two decades, had run on a platform to repeal the death penalty, but only going forward.

Senior Assistant State’s Attorney Harry Weller told the justices that it is constitutional and that the court has to defer to the wishes of the legislature on how it constructed the death penalty, an issue that goes to the separation of powers.

Redemacher used the words of Chief State’s Attorney Kevin Kane who testified against the prospective application, saying it creates two classes of prisoners, with one subject to death and another to life in prison, not based on the nature of the crime or mitigating circumstances, but tied to the date of implementation.

Earlier coverage from Connecticut begins with a preview of the arguments.

Andrew Cohen Updates the Warren Hill Case

"Executing the Mentally Handicapped - Is Illegal - Except When it Isn't," is Andrew Cohen's latest post at the Atlantic.

It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.

By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.

What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**

"Court Lifts Execution Stay; State Out of Lethal-Injection Drugs," is Bill Rankin's updated Atlanta Journal-Constitution report.

The court’s decision means the state can set a new execution date for Hill at any time. But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.

“At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan wrote in an email.

Hill’s case attracted international attention when three state experts who previously testified Hill was faking his mental disability came forward to say they had been mistaken. The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded. The U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

In a strong dissent, Judge Rosemary Barkett said there is now “no question” that Georgia will be executing a mentally retarded man. She noted that the seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.

“The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

The expanded AP report is, "Appeals court lifts stay of execution for Ga. man," by Kate Brumback.  It's via NECN.

Like many death penalty cases, Hill's has had a long and complicated journey through the legal system, including two last-minute stays of execution.

The 11th Circuit panel granted a stay in February after Hill's lawyers argued he was eligible for reconsideration in federal court because three doctors who had testified in 2000 that Hill was not mentally disabled provided statements in February saying they had changed their opinions and now believe he is.

Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death-row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt. The state of Georgia has long argued that Hill's lawyers have failed to do that.

In filings with the 11th Circuit, the state said the doctors' new statements were not credible and also argued Hill was procedurally barred from asking a federal court to reconsider his case.

In the majority opinion, Circuit Judge Frank Hull writes that the court recognizes Hill has submitted new evidence to support his claims but says the core argument — that Hill is mentally disabled and therefore shouldn't be executed — remain the same. The 11th Circuit and other courts have repeatedly held that new evidence and new legal arguments in support of a prior claim aren't enough to overcome the statutory bar on repeat petitions.

"If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony," Hull writes.

Hill's claim also doesn't meet exceptions to the requirements that would allow reconsideration by a federal court, Hull writes.

The U.S. Court of Appeals for the Eleventh Circuit ruling in In Re: Hill is available in Adobe .pdf format.

Earlier coverage of Warren Hill's case begins at the link.

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.

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

Additional Coverage of the Connecticut Oral Arguments

"State Supreme Court To Hear Arguments On Death Penalty's Repeal," is by Daniela Altimari for the Hartford Courant.

The state Supreme Court is set to hear arguments Tuesday on whether Connecticut's controversial prospective repeal of the death penalty is constitutional.

The General Assembly eliminated capital punishment a year ago. But to win passage, lawmakers forged a politically inspired compromise: repeal the death penalty for future cases but maintain it for the 10 men currently on death row, including Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky.

The challenge to the state's closely watched repeal of the death penalty was brought by Eduardo Santiago, who was convicted in a murder-for-hire scheme and sentenced to death in 2005.

Santiago's lawyer, Assistant Public Defender Mark Rademacher, argues that the application of the death penalty after its repeal would constitute cruel and unusual punishment. Arguments in the case are scheduled to be heard before the court, which could strike down portions or all of the act that repealed the death penalty.

"The execution of a handful of men who committed their crimes before repeal fails to achieve the constitutionally required goals of deterrence and retribution,'' Rademacher wrote in a supplemental brief filed on behalf of Santiago. "Their execution would be nothing but the purposeless and needless imposition of pain and suffering. This court should join with other states that reject death sentences when they lack justification as deterrence or retribution."

Several states, including Illinois and New Jersey, have repealed capital punishment in recent years but no state has executed an inmate after repeal, according to a friend of the court brief in support of Santiago filed by Brian W. Stull of the American Civil Liberties Union Foundation.

The Connecticut Law Tribune previews the case in, "Connecticut's High Court To Hear Death Penalty Repeal," by Christian Nolan.

It was around this time last year that lawmakers decided to repeal the death penalty in Connecticut.

Legislators were careful, however, to word the statute in such a way as to ensure the prior convicted members of death row – like the Cheshire home invasion killers- Steven Hayes and Joshua Komisarjevsky — were still subject to capital punishment.

But in a challenge to the state Supreme Court this week, death penalty opponents argue, among other things, that retroactive application of capital punishment would constitute cruel and unusual punishment. They say executing a man convicted of murder in 2005 would be a violation of the 8th Amendment of the U.S. Constitution.

"We believe it's very important for the court to know that these are unchartered waters," said Brian Stull, of the American Civil Liberties Union's Capital Punishment Project in Durham, N.C. Stull submitted an amicus brief arguing that the justices should not allow retroactive application of the death penalty.

The New Haven Register publishes the OpEd, "Victim’s mother grateful death penalty is gone."  It's written by Victoria Coward.

A year ago April 25, the state of Connecticut did away with our death penalty.

I was glad to see that change, and with the death penalty gone, I’ve been able to focus on much more important things.

In 2007, my son Tyler was murdered. I struggled like you can’t believe to keep my sanity and keep my family together. When my son’s case went to trial, I noticed an extreme discrepancy between the treatment of my son’s case and a capital case.

It hurt me to see the energy and attention that was given to capital cases, while I was practically drowning in grief, debt and confusing judicial proceedings. I dug in to learn about the death penalty and found a deeply disturbing picture.

The death penalty — applied freakishly rarely in Connecticut — was justified because it was said to be reserved for the “the worst of the worst.” The unspoken conclusion to that logic is that the vast majority of homicide survivors had lost our beloveds in a “normal” murder.

This notion still makes my blood boil.

I felt compelled to speak out against this system that cruelly divided victims when society should have been stepping up to help all of us. Beyond the painful rhetoric, there were practical consequences. While the state paid millions of dollars to prosecute a single case, caps are placed on counseling for survivors, there are too few victim advocates, and there are many other ways Connecticut victims could use assistance. The money that went to the death penalty would be better invested in victims.

Earlier coverage of Connecticut's repeal begins at the link.

11th Circuit Lifts Warren Hill's Stay of Execution

The U.S. Court of Appeals for the Eleventh Circuit ruling in In Re: Hill is available in Adobe .pdf format.

"Court denies Hill’s bid to halt execution," is Bill Rankin's report for the Atlanta Journal-Constitution.

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded.

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s claim challenged only his eligibility for a death sentence and not whether he is guilty of murder. For this reason, Hill cannot clear the narrow “actual innocence” exception that allows capital inmates to raise new claims after prior appeals had been exhausted, Judge Frank Hull wrote.

Judge Rosemary Barkett issued a stinging dissent.

“There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.”

"Federal appeals court lifts stay of execution for Ga. man, clears way for new execution date," is the AP report, via the Republic.

The 11th U.S. Circuit Court of Appeals stepped in at the last minute to temporarily block Warren Lee Hill's execution in February. The court said it wanted to consider Hill's arguments that a federal court should reconsider his case.

In an opinion published Monday, the 11th Circuit says Hill's claim of mental disability was presented in an earlier petition and can't be presented again. The circuit judges also say Hill's claim only challenges his eligibility for the death sentence, not his underlying guilt, making him ineligible for reconsideration.

Hill's lawyers asked for reconsideration based on new doctor statements regarding his mental disability.

Warren Hill's attorney, Brian Kammer, has just issued the statement, "in Response to Eleventh Circuit Denial."  Here's the full text:

“We are deeply disappointed that the 11th Circuit United States Court of Appeals found that procedural barriers prevent them from considering the compelling new evidence in Warren Hill’s case. The new evidence shows that every mental health expert ever to examine him finds that Mr. Hill has mental retardation and is thus ineligible for execution according to the constitution of the United States.

We came before this court with important new evidence – that three doctors who previously testified on behalf of the state, upon further review of Mr. Hill’s complete records, now conclude that he has mental retardation. The diagnosis of mental retardation is now unanimous among all the doctors who have examined Mr. Hill.

As Judge Barkett notes in her dissent: "The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.... [The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands.""

Earlier coverage of Warren Hill's case begins at the link.

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.

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

From Connecticut

"State Supreme Court weighs death penalty repeal," is the AP filing, via CT Post.

The state Supreme Court is set to hear arguments on whether the state's repeal of the death penalty for future crimes violates the constitutional rights of the 11 men on the state's death row.

Justices are scheduled to hear the case Tuesday.

The arguments come in the case of former Torrington resident Eduardo Santiago, who was sentenced to death for the 2000 killing of a West Hartford man in exchange for a broken snowmobile.

The state Supreme Court overturned the death sentence and ordered a new penalty phase last year. But the ruling came two months after the state repealed the death penalty for murders committed after April 24, 2012.

Justice will decide whether the repeal law bars the state from executing the death row inmates.

Earlier coverage from Connecticut begins at the link.

Retired Texas Court of Appeals Justice Calls for New Buck Sentencing

"Grant Duane Buck a new, race-free trial," is by retired Justice Michol O’Connor.  He served on the Texas First Court of Appeals in Houston. 

The use of race-based testimony in the capital sentencing of Duane Buck is a clear violation of his Constitutional right to a fair and unbiased trial. No one should be sentenced to death based on the kind of racially discriminatory testimony that tainted Mr. Buck’s trial, as Texas NAACP president Gary Bledsoe persuasively argues.

As a retired state appellate justice, it is hard for me to understand what interest the state of Texas is protecting in resisting the call for a new sentencing hearing. The state could easily provide Mr. Buck with a new hearing, as it did in the cases of the other men sentenced to death based on similar testimony from the same witness.

The state has wasted much judicial and prosecutorial time and effort in its costly attempt to deny Mr. Buck a new sentencing hearing. It should have agreed to a new hearing when Mr. Buck (along with the others) first became entitled to a new sentencing hearing free from racial considerations.

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

Arizona AG Seeks Expedited Review Under AEDPA

The Arizona Republic reports, "Horne may sue over habeas corpus," by Lindsey Collom.

Arizona Attorney General Tom Horne is threatening to sue the Obama administration over delays in habeas corpus proceedings that he says routinely and unnecessarily prolong the death penalty from being carried out in the state.

Horne contends that Arizona qualifies for expedited federal habeas corpus, a writ ordering a person in custody to be brought before a court, because its system for appointing defense counsel meets criteria set in federal law. But some legal experts say Horne’s timing is off and his argument ill-founded because the Department of Justice has yet to create a mechanism to determine a state’s eligibility.

In a letter issued Thursday, Horne gave U.S. Attorney General Eric Holder a 90-day deadline to respond to his request that Arizona be certified to take advantage of expedited federal review of capital cases as guaranteed in the Antiterrorism and Effective Death Penalty Act of 1996.

The act was designed in part to streamline federal appeals for convicted criminals sentenced to death. The expedited review is eligible to states that provide qualified, well-compensated attorneys to death-row inmates moving through the appeals process.

And:

Dale A. Baich, an assistant federal public defender who represents death-row prisoners in federal habeas corpus proceedings, said the cases deserve careful attention from the courts. “These cases are very complex and very serious, and the federal courts need to give each case the consideration that’s due,” Baich said.

"Horne plans to sue Federal Government if they don't expedite capital cases," is by Andrew Michalscheck of AZ Family.

Arizona Attorney General Tom Horne announced Thursday that he plans to sue the Federal Government if they don’t expedite their handling of capital cases.

Horne said he will file a lawsuit if the government doesn’t approve within 90 days Arizona’s application to qualify for expedited review of capital cases.

Horne notes that it’s important to not force the families of victims to suffer while they wait for justice to be done.

“The studies show that families suffer from something like Post Traumatic Stress Syndrome, and can heal faster if they see justice done within a reasonable period of time,” said Horne. “If they are victimized a second time by endless delays in the Federal Courts, that adds to their pain.”

Horne points out that in the last seven capital cases Federal Habeas Corpus has delayed justice being done by 10 to 13 years.

Horne's letter to U.S. Attorney General Eric Holder is available in Adobe .pdf format.

"Arizona AG Takes A Momentous Step Toward An Effective Death Penalty," is Kent Scheidegger's post at the Crime and Consequences blog.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door.  President Obama's Justice Department rescinded them and has dithered ever since.  The dithering is not over the rules of procedure the statute actually authorizes DoJ to make but rather over the rules of substance that Congress has forbidden DoJ to make.

Related posts are in the AEDPA index.

Judge Ken Anderson Charged with Misconduct

"Ken Anderson charged with misconduct during 1987 Michael Morton murder trial," is Chuck Lindell's report posted at the Austin American-Statesman.

Former Williamson County District Attorney Ken Anderson was arrested and booked into jail, then quickly released, for the “intentionally harmful act” of hiding favorable evidence to secure Michael Morton’s 1987 conviction for murder, the court of inquiry found.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” District Judge Louis Sturns ruled.

Sturns found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court, then ordered Anderson to be arrested.

"Ex-Texas DA Faces Charges for Man's Prosecution," is the AP report by Michael Brick.

A Texas judge on Friday ruled that a former district attorney acted improperly when he prosecuted an innocent man who spent nearly 25 years in prison for his wife's slaying and ordered his arrest on criminal contempt and tampering charges.

Judge Louis Sturns, of Fort Worth, issued an arrest warrant for Ken Anderson for his handling of the case of Michael Morton. Sturns said there was sufficient evidence that Anderson was guilty on all three charges brought against him: criminal contempt of court, tampering with evidence and tampering with government records.

And:

During the weeklong Court of Inquiry, the special prosecutor, Houston defense attorney Rusty Hardin, presented witness testimony and other evidence to show Anderson kept evidence from Morton's attorneys at his trial.

The special court is a rarely used hearing that is held when officials or public servants are accused of wrongdoing. The process is similar to a grand jury proceeding, but people can defend themselves against the evidence presented.

Among the evidence Morton's attorneys claim was kept from them were statements from Morton's then-3-year-old son, who witnessed the murder and said his father wasn't responsible and interviews with neighbors who told authorities they saw a man park a green van close the Morton home and walk into a nearby wooded area before the slaying.

The Texas Tribune posts, "Court of Inquiry Ends With Arrest Warrant for Anderson," by Maurice Chammah.

Judge Louis Sturns concluded his court of inquiry by charging Anderson, who is now a state district judge, with tampering with government records (a misdemeanor), tampering with physical evidence (a felony) and failing to comply with a judge's order to turn over such evidence, for which he could be held in “contempt of court.”

The rare court of inquiry, in which arguments were made in February, was held to determine whether Anderson, a former district attorney, committed criminal misconduct during the trial that led to Morton’s wrongful murder conviction. Morton, who was in attendance for Friday’s decision, spent nearly 25 years behind bars for his wife’s murder before he was exonerated.

Sturns said that Anderson purposefully concealed evidence from Morton's defense attorneys, hiding reports that neighbors had seen a green van outside of the Mortons’ home and a phone transcript in which Morton's son was said to have told his grandmother a "monster" murdered Morton's wife.

Rusty Hardin, the special prosecutor in the court of inquiry, told reporters that Anderson would turn himself in at the Williamson County Jail on Friday afternoon, and that he would have to pay a $2,500 bond for each of three separate counts.

Earlier coverage of the Court of Inquiry begins at the link.  Related posts are in the Michael Morton category index. 

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

Sequestration's Impact on Federal Indigent Defense

The BLT, the Blog of Legal Times reports, "U.S. Courts Announce Sequestration Plan for Defenders," by Zoe Tillman.

It's rare for a furlough announcement to be considered good news, but that was the case yesterday for the federal public defender office in Washington.

The Executive Committee of the Judicial Conference, the body of judges that decides how the federal judiciary spends its money, announced it had reached a plan for the defender services budget under federally mandated cuts known as sequestration. The details are still being hammered out, but federal public defender offices would face no more than three weeks of furloughs—a significant amount of time, but less than originally projected for many offices.

The D.C. federal public defender's office faced 27 furlough days under sequestration. Federal Public Defender A.J. Kramer said today that the announcement was "welcome news." Still, he said that until the final details are worked out and they know exactly how many furlough days attorneys and staff will have to take, "you don't count on anything until it's done."

"It creates more uncertainty," Kramer said. But he added that "in this respect, it’s better uncertainty than if we were told it was more days."

Local federal public defenders have started taking furlough days, which Kramer said had already led to delays in cases. "It just makes it extremely difficult," he said.

The defender services budget also funds payments to private lawyers appointed by the court to represent indigent criminal defendants under the Criminal Justice Act. The sequestration plan would suspend those payments for three weeks at the end of the fiscal year in September. There are about 100 lawyers in Washington who serve on the CJA panel for the local U.S. district court.

"Public defenders offices shouldn’t suffer under sequestration," is the OpEd published by the Washington Post.  It's written by Federal District Judges Paul L. Friedman and Reggie B. Walton, both in the District of Columbia.

Generally, federal judges should not become embroiled in political disputes. But we feel compelled to speak out because sequestration poses an existential threat to the right of indigent defendants to have publicly funded legal representation — a right that the Supreme Court recognized 50 years ago in its landmark decision in Gideon v. Wainwright.

Before becoming judges, we served as federal prosecutors and as defense lawyers. As the former, we vigorously pursued the prosecution of individuals accused of violating the law. And upon securing convictions, we aggressively sought incarceration when the circumstances warranted. Our ethical obligation as prosecutors was not only to secure convictions but also to ensure that the results we obtained were just. Confidence in the justice of an outcome — especially when the accused loses his or her freedom — is maximized only if the defendant has had competent legal representation.

And:

Particularly as concerns grow about wrongful convictions, it is distressing to see resources so dramatically diminished for those who protect the rights of the poor in the criminal justice system. And the judiciary is virtually powerless to do anything about it. We appreciate that the country’s fiscal problems must be addressed. But the effect of sequestration on the courts severely threatens the rights guaranteed by the Sixth Amendment to those accused of crimes and, in the process, threatens our federal judiciary’s reputation as one of the world’s premier legal systems. This is a price we cannot afford to pay.

No Progress on Florida Death Penalty Jury Legislation

"Florida bill would require unanimous vote for death penalty," is by Kathryn Varn for the Florida Alligator.

Bills that would require a unanimous vote to sentence someone to death haven’t budged in the state House of Representatives and Senate.

Current law stipulates that juries only need a majority vote to sentence a person to death. Florida is the only state with that minimum of a requirement, which has Florida Sen. Darren Soto (D-Kissimmee) concerned. Soto co-introduced SB 148 in December. It was referred to committees but never made it to a vote in any of them.

“Just keep in mind, the folks who are getting a death penalty are getting life in prison,” he said. “Whether they should be executed or not is another question.”

Soto said Florida has seen many people exonerated by DNA evidence, which suggests there needs to be more safeguards in the system.

Katheryn Zambrana, a UF criminology professor, sees more safeguards as a positive thing, which the proposed legislation provides for in more than one way.

Zambrana explained the jury must first unanimously agree the defendant is guilty. In order to sentence the defendant to death with the current law, a jury determines if the aggravating circumstances, such as if a murder was premeditated, outweigh the mitigating circumstances, like if a defendant had a history of child abuse or mental illness.

With the proposed legislation, a jury would have to unanimously prove each aggravating circumstance beyond a reasonable doubt and all agree to issue the death penalty.

“The process is longer, but I think it’s better,” Zambrana said. “It’ll reduce the likelihood of wrongful conviction and will ensure that jurors are sure in their conviction.”

And:

In Tallahassee, HB 961 sponsor Rep. Mark Pafford (D-West Palm Beach) said he’s disappointed the bill hasn’t moved.

Earlier coverage of Florida death penalty legislation begins at the link.

For more on Florida capital punishment issues, there isthe multimedia blog, Punishable by Death.

Ohio Task Force Plans to Conclude Work This Year

"Judge: OH death penalty review concludes this year," is the AP report, via WTVG-TV.

The chairman of a state Supreme Court task force analyzing the effectiveness of Ohio's capital punishment law says the committee should plan to conclude its work this year.

Chairman James Brogan also said he expects two reports from the committee, one from a majority backing recommendations, the other from a minority of members with different views. Brogan is a retired state appeals court judge from Dayton.

The committee continued its work Thursday in Columbus as it heard presentations on ways to measure the effect of race on capital cases.

Ohio Supreme Court Chief Justice Maureen O'Connor has convened the task force while making it clear it won't debate whether the state should have the death penalty. The group includes judges, prosecutors, defense attorneys and academic experts.

Earlier coverage of the Ohio Task Force begins at the link.  The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information and future meeting dates.

Confession Reported in Texas Prosecutors' Murder Case

"Wife of Ex-Judge Is Charged in Killings of Texas Prosecutors," is the New York Times report by Manny Fernandez, Serge F. Kovaleski, and Emma G. Fitzsimmons.

The wife of a disgraced justice of the peace has been arrested and charged with the murders of the Kaufman County district attorney, his wife, and another prosecutor, and has told investigators that her husband was the one who shot them.

Her confession was contained in an affidavit filed with the arrest warrant, which said the woman, Kim Lene Williams, 46, had confessed in an interview with investigators on Tuesday. She described in detail her own role and that of her husband, Eric Lyle Williams.

Ms. Williams, 46, was booked into the Kaufman County jail shortly before 3 a.m. on Wednesday and is being held on a $10 million bond, according to county jail records. She was charged with capital murder, which means she could face the death penalty if convicted, according to law enforcement officials involved in the investigation.

The authorities have recently focused on Mr. Williams, who was convicted last year of stealing computer equipment in a case handled by the two prosecutors. Investigators recently searched a storage unit that appeared to have been rented at Mr. Williams’s request and found more than 20 guns and a car that might have been used in at least one of the killings.

Law enforcement officials have not publicly named Mr. Williams as a suspect and have not formally charged him in connection with the murders of the district attorney, Mike McLelland, 63; his wife, Cynthia, 65; and his chief felony prosecutor, Mark E. Hasse, 57. But investigators from local, state and federal agencies have been focusing intensely on Mr. Williams in recent days.

"Wife of ex-judge confesses in Texas DA slayings," is the AP report by Danny Robbins.

The wife of a former North Texas judge was charged with capital murder after confessing to her involvement in the three shooting deaths of the local district attorney, his wife and an assistant prosecutor, authorities said Wednesday.

Kim Williams was arrested early Wednesday, a day after she told investigators that she and her husband, Eric Williams, were involved in the shootings of the Kaufman County district attorney, his wife and one of his prosecutors, according to documents in the case.

The affidavit says Kim Lene Williams "described in detail her role along with that of her husband" but was unclear on who she said committed the shooting.

Kaufman County District Attorney Mike McLelland and assistant prosecutor Mark Hasse prosecuted Eric Williams last year for theft of three computer monitors. Wiliams was convicted and sentenced to probation. He also lost his elected position as justice of the peace - a judge who handles mostly administrative duties - and his law license.

The Dallas Morning News reports, "Updated: Wife of ex-JP confesses, says her husband shot former Kaufman DA, his wife and top prosecutor," by Tanya Eiserer.

Kim Williams’ arrest warrant says she confessed to the entire plot, explaining her role and saying her husband was the shooter.

Authorities confirmed the charge and $10 million bail during a brief news conference at the Kaufman County sheriff’s department. Assistant District Attorney Mark Hasse was shot dead as he walked to the courthouse on the way to the courthouse on Jan. 31 and Mike and Cynthia McLelland were shot dead over Easter weekend.

Kaufman County Lt. Justin Lewis told the media that family members would be briefed on the investigation this afternoon and that a full news conference would be held Thursday.

Earlier coverage of the crime that had rattled nerves among prosecutors begins at the link.

California Appeals Court Hears Lethal Injection Challenge

The Silicon Valley Mercury News reports, "Court hears challenge to California's execution method," by Howard Mintz.

A state appeals court hearing here Tuesday underscored the extent to which California's death penalty system has been lost in the legal weeds.

During less than an hour of arguments, the 1st District Court of Appeal offered few hints on whether it would uphold a Marin County judge's 2011 order blocking executions because state prison officials failed to comply with complex administrative rules in revising California's three-drug lethal injection procedures. The highly technical issue is the latest legal impediment for the state, which has not carried out an execution in more than seven years.

Justice J. Anthony Kline was the only member of the panel to signal where he stands in the case,

indicating the prison department's effort to overhaul its execution method was botched.

"The amount of conceded mistakes here is unusual," Kline told Deputy Attorney General Michael Quinn.

But Justices James Lambden and James Richman were silent during the hearing, asking no questions of either side. The court now has 90 days to rule.

While the outcome rests on arcane legal rules, the result could be important for the pace of California's execution process. If the appeals court sides with the state, allowing the three-drug method to move forward, it might prompt resolution of related federal court challenges to lethal injection -- possibly allowing executions to proceed next year. But a loss for the state would likely add to the interminable delays on the 734-inmate death row.

"Court In SF Hears Bid To Reinstate Lethal Injection Protocol," is by Julia Cheever of Bay City News, via the San Francisco Appeal.

A lawyer for the state asked an appeals court in San Francisco today to reinstate California’s three-drug lethal-injection procedure for executing death row inmates.

Deputy California Attorney General Michael Quinn argued that the revised lethal-injection plan, completed in 2010, complied with a state administrative law governing the development of new regulations.

Public comments on the California Department of Corrections and Rehabilitation’s draft of the protocol in 2009 “dealt with every conceivable issue related to the death penalty,” Quinn told a three-judge panel of the state Court of Appeal.

“There was no confusion about what the draft regulation was about.

The public was fully informed and able to comment,” Quinn maintained.

The state is appealing a 2011 decision in which Marin County Superior Court Faye D’Opal struck down the revised protocol on the ground that the CDCR violated the state’s Administrative Procedure Act.

The law requires agencies to show that new regulations are necessary and to provide a meaningful opportunity for public comment.

D’Opal ruled that among other errors, the department failed to justify why its three-drug plan was better and more effective than an alternative of using just one drug, a barbiturate.

Steven Mayer, a lawyer for condemned inmate Mitchell Sims, argued today, “At the end of the day, when you get to the heart of the case—which is the three-drug protocol—it is totally unclear why the three drugs were adopted.”

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

Case Roundup - News from Colorado, Montana, U.S. Government

There is news in cases involving Colorado, Montana, and the federal death penalty.

The Denver Post reports, "Judge to decide Nathan Dunlap's execution date in May," by John Ingold.

Nathan Dunlap, who murdered four people in an Aurora Chuck E. Cheese restaurant 20 years ago, could be executed in August, after a judge on Friday set a hearing to determine a new reckoning date for the killer.

Judge William Sylvester scheduled a hearing for May 1 to designate a week during which Dunlap will be executed. Under state law, the final date of the execution is selected by the head of the Department of Corrections.

The law says judges must set the execution week between 91 and 126 days out from the day of the hearing at which they set it. If Sylvester were to designate a week at the May 1 hearing, that means Dunlap could be executed some time between July 31 and Sept. 3.

Sylvester's order came after a federal judge's decision earlier this week to lift a stay of execution he had imposed while Dunlap appealed his death sentence in federal court. That appeal ended in February, when the U.S. Supreme Court declined to hear the appeal.

"Montana prosecutors won't seek death penalty in killing of Illinois man kidnapped from hotel," is the AP report filed by Matthew Brown.  It's via the Republic.

Montana prosecutors will not seek the death penalty against the defendant charged with killing an Illinois man who was kidnapped from a Billings hotel, Yellowstone County Attorney Scott Twito said Monday.

Simon Jacobson, 28, is charged with deliberate homicide and other crimes in the January death of Dejuan Laster, 29.

Authorities allege that Jacobson and an accomplice posed as FBI agents to kidnap Laster and his girlfriend from the Extended Stay America hotel during a robbery. Jacobson later admitted to shooting Laster and hiding his body in a culvert in a rural area of Yellowstone County, investigators said.

Jacobson was being held on $1 million bail after pleading not guilty.

Ronald Smith and William Jay Gollehon are the only two inmates currently awaiting execution in Montana.

In comparing Jacobson's alleged actions against those other cases, Twito said Jacobson had only one aggravating factor — the kidnapping — that would merit a death sentence under Montana law, versus multiple aggravating factors in the others.

"It was the assessment of this office that a sentence of death would not likely be imposed," Twito said.

The Billings Gazette reports, "Twito: No death penalty in Laster murder case," by Greg Tuttle.

Yellowstone County Attorney Scott Twito announced Monday that he will not seek the death penalty for the Billings man accused of kidnapping and killing Dejuan Laster.

And:

Under state law, the death penalty can be sought only under certain circumstances, including cases that involve aggravating factors such as multiple victims or aggravated kidnapping.

The aggravating kidnapping charge against Jacobson sparked Twito's review of whether his office should seek the most severe punishment.

Twito said Monday he had consulted with Laster's family about his decision. He said they had been "very open" during his review.

"I believe that they trust the decision that's been made here today," Twito said when asked about the family's response to his decision.

Twito said he also reviewed the cases of the only two inmates currently on Montana's death row, Ronald Smith and William Gollehan. Both the men had multiple aggravating factors, Twito said.

Smith was convicted and sentenced to die for killing two men in 1982. Gollehon received the death sentence for his role in the death of five inmates during a 1991 riot at Montana State Prison. 

It became clear, Twito said, "that a sentence of death would not be imposed (against Jacobson) during the sentencing phase."

In a potential federal death penalty case, the New York Post reports, "US Justice Department will not see death penalty for Colombo crime family consigliere."  It's by Mitchel Maddux.

The US Justice Department won't seek the death penalty for a Colombo crime family consigliere accused of sanctioning the 1997 murder of NYPD Officer Officer Ralph Dols.

US Attorney General Eric Holder issued the course-reversing directive -- made public today -- without citing a rationale for his shift.

Now Colombo wiseguy Joel "Joe Waverly" Cacace, 72, will face a maximum penalty of life in prison if he's convicted at his upcoming mob murder trial in Brooklyn federal court.

Cacace is already serving a 20-year sentence for other mob crimes that has him scheduled to be released in June 2020, according to prison records.

Back in Feb. 2011, Holder authorized Brooklyn prosecutors to pursue the death penalty for Cacace, who's charged with ordering the carefully planned Aug. 25, 1997 hit on the off-duty officer in Brooklyn.

"Attorney General Eric Holder: no death penalty in mob murder trial," is the New York Daily News report by John Marzulli.

U.S. Attorney General Eric Holder ordered prosecutors in Brooklyn to withdraw its intention for the ultimate punishment against former acting boss Joel (Joe Waverly) Cacace, who is still awaiting trial in the case.

Last year two of Cacace’s underlings, Thomas (Tommy Shots) Gioeli and alleged shooter Dino Saracino, were cleared by a Brooklyn jury of the off-duty cop’s killing. Prosecutors contend that Cacace marked the cop for death because he had married the mobster’s ex-wife, Kim Kennaugh.

Earlier coverage of the Dunlap case in Colorado begins at the links.  The federal death penalty category index has more on federal prosecutions.

Gary Bledsoe on the Buck Case - TxRJA Proposal Gets Hearing

Today's Dallas Morning News publishes the OpEd, "Turn the page on racism in Texas death penalty," by Gary Bledsoe.  He's the President of the NAACP of Texas, and a former Texas Assistant Attorney General.  Here's the beginning of this must-read:

When I was about 10 years old, growing up in Odessa, I got picked up by the police because a car had been stolen the night before. I didn’t know how to drive. In fact, I didn’t even know how to put a key in the ignition. I was late to school that day for no reason.

Actually, there was a reason, just not a good one. I was picked up because I am black. The same thing happened to my friends and members of my family.

That was the early 1960s. A lot has changed for the better since then. Even so, there are still wrongs from our state’s history with racism that haven’t been made right.

Duane Buck was convicted of murder in Harris County in 1997. At his sentencing hearing, the prosecutor relied on testimony from a psychologist who said that Buck would be more dangerous in the future because he is black. The jury agreed that Buck posed a future danger and sentenced him to the ultimate punishment.

People have different views on the death penalty. But we can all agree that we must have compassion for all victims, and also that no one should be sentenced to death because of the color of his skin.

Racial discrimination, or at least the appearance of it, was prevalent among some in the district attorney’s office at the time of Buck’s case. We might add that the perceived bias is historical and not just isolated to one point in time, as we are aware that one DA resigned in recent years after circulating racist emails with his subordinates.

There is also additional video coverage of the Buck case.  HuffPost Live streamed, "Killing Duane Buck," hosted by Marc Lamont Hill.  Houston ABC affiliate's KTRK-TV News program "Crossroads," hosted by Melanie Lawson, also provided coverage of the case.

Today, the House Criminal Jurisprudence Committee will hear Senfronia Thompson's HB 2458.  The Committee agenda is available in Adobe .pdf format.  The Committee will convene upon adjournment of the House.  You can watch streaming video of the meeting at the link.  Be aware that bills may be brought up out of order of the printed agenda.

NAACP LDF has issued a news release, "Former Governor, Former Prosecutor, Civil Rights Leaders, and Other Prominent Individuals Offer Testimony in Favor of Texas Racial Justice Act.  Testimony: Duane Buck’s Case, Whose Sentencing Hearing Was Poisoned With Racial Discrimination, Shows That Texas Needs The Racial Justice Act." 

Here's the beginning of the release:

Several prominent Texans submitted testimony to the House of Representatives Criminal Jurisprudence Committee today in support of the Racial Justice Act, which seeks to prohibit the imposition of a death sentence or execution under any judgment that was sought or obtained on the basis of race.  The Harris County, Texas, death penalty case of Duane Buck was cited as a clear example of how racial discrimination corrupts Texas’ death penalty system. Mr. Buck, an African American man, was condemned to death in 1997 after his sentencing jury was told that he posed a future danger because he is Black. 

The Criminal Jurisprudence Committee is hearing testimony today on House Bill 2458, Texas Racial Justice Act, sponsored by Representative Senfronia Thompson, who represents District 141, which includes part of Harris County.

Those offering testimony in favor of the Racial Justice Act include: Mark White, Texas Governor (1983-1987); Linda Geffin, former Harris County Assistant District Attorney who served as a prosecutor in Mr. Buck’s case; and Yannis Banks, Texas NAACP Legislative Liaison.

“The way we determine punishment in the United States is with a fair trial and sentencing. Duane Buck did not receive that. His case, and other cases, shows how racial discrimination can infect Texas’ courtrooms. We cannot condone any form of racial discrimination in our criminal justice system and we must act to end it,” said Governor White in testimony submitted to the Committee. Governor White and more than 100 civil rights leaders, clergy, elected officials, past ABA Presidents and former judges and prosecutors delivered a letter to Harris County District Attorney Mike Anderson urging a new, fair sentencing hearing for Mr. Buck.

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

Criminal Discovery Legislation Clears Texas Senate

The Austin American-Statesman has published the editorial, "Texas Senate’s attempts to limit wrongful convictions commendable."

Its passage wasn’t as sure as it should have been, given that it was as much a no-brainer as any piece of legislation could be, but this week the Senate finally and unanimously passed the Michael Morton Act.

Morton was on hand for the occasion Thursday. He stood, as the American-Statesman’s Chuck Lindell reported, in a Capitol corridor while holding the gavel Lt. Gov. David Dewhurst had used minutes earlier to announce approval of the legislation named in his honor. The vote, coming 18 months after Morton’s release from prison, was 31-0.

It’s hard to imagine opposition to a bill designed to prevent wrongful convictions by requiring prosecutors to share crucial information with defense attorneys, but the Michael Morton Act appeared doomed Wednesday until a delicate compromise, prodded along by Dewhurst, appeased concerns by district attorneys that the bill threatened the safety of witnesses and victims in some cases. So lawmakers added a few restrictions to shield some identities.

Point taken on protecting the potentially vulnerable. Now the House should follow the Senate’s lead and pass the Michael Morton Act.

Let's begin news coverage of the vote with the Statesman report, "Senate passes Michael Morton Act," by Chuck Lindell.

Wednesday’s intense negotiations — including not-so-gentle prodding by Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation.

“It feels very, very good of course, but I know we’re not through. We have the other side to go through, the House,” Morton said.

State Rep. Senfronia Thompson, a highly respected 20-term Democrat from Houston, will shepherd the bill through the House.

Morton will be there, too, hoping that the agreement forged by prosecutors, defense lawyers and a half-dozen senators will find relatively easy acceptance.

The Texas Tribune posted, "Senate Unanimously Approves Michael Morton Act," by Brandi Grissom.

A year and a half after he took off his prison whites for the last time, exoneree Michael Morton stood in the Senate beside his wife, Cynthia, on Thursday as lawmakers in that chamber unanimously approved a bill named in his honor that aims to prevent others from being wrongfully convicted. 

"Had this been in place when I was arrested, I probably wouldn't have gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.

"Michael's tragic case brought to the forefront something we already knew in Texas," Ellis said. "Our criminal discovery process in Texas needs serious reform."

And:

Today — as in 1987 when Morton was tried — prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Though many Texas prosecutors have some form of open file policy, those procedures vary from county to county and sometimes even within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Since his release from prison, Morton has been on a mission to see the implementation of laws that help prevent wrongful convictions like his and that hold prosecutors accountable when their decisions result in innocent people losing years of liberty. The Senate has already approved SB 825, by Sen. John Whitmire, D-Houston, which would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. That measure is awaiting a hearing Monday in the House Committee on Judiciary and Civil Jurisprudence.

"Senate OKs bill to share DA case files with defense," was the AP filing written by Will Weissert, via the Fort Worth Star-Telegram.

The Senate unanimously approved the Michael Morton Act, named in honor of a Texan who spent nearly 25 years in prison for a murder he did not commit and designed to prevent future wrongful convictions.

After their vote Thursday, senators stood and applauded and Lt. Gov. David Dewhurst banged a specially engraved wooden gavel that was later awarded to a beaming Morton, who watched the proceedings from just off the floor -- a long way from the prison cell he was sitting in two years ago.

The measure now heads to the House for consideration.

Dallas Morning News editorial board member Rodger Jones posted, "Michael Morton Act passes Senate unanimously," on the Views blog.

Ellis, a Houston Democrat, co-author with Sen. Robert Duncan, Republican of Lubbock, credited Morton for using his “life’s tragedy” to lobby strongly for the bill, SB 1611.

The legislation updates, broadens and clarifies the access defense attorneys have to case files compiled by prosecutors. Morton spent nearly 25 years in prison for the murder of his wife, but has maintained in court that the DA kept vital information from him. Morton was freed after DNA tests cleared him in 2011, despite years of efforts by the DA’s office to keep evidence away from him for testing.

Ellis told the Senate that he thought months of work on the bill was lost a few times, especially in the last week, after Sen. Joan Huffman, R-Houston, began lobbying for changes after the bill already emerged from committee. One key to breaking the impasse, I’m told, was Dallas Sen. Royce West, a former prosecutor, who got involved in a come-to-Jesus meeting among negotiators on Monday.

"Ken Anderson court of inquiry resumes April 19," is from the American-Statesman.

A moment of truth for district court judge Ken Anderson is expected to arrive April 19, when the court of inquiry investigating his alleged wrongdoing reconvenes.

At 1 p.m. at the county’s Justice Center in Georgetown, Judge Louis Sturns is to hear closing arguments from attorneys, as he considers whether Anderson – in his prior role as district attorney – withheld evidence during Michael Morton’s 1987 murder trial. The judge has three issues to consider: whether Anderson tampered with physical evidence, if he tampered with a government record and/or he committed contempt of court.

If Sturns rules Anderson did any of these, it’s possible Anderson could face misdemeanor or felony criminal charges, but Sturns would also have to rule statutes of limitations have not passed.

The court of inquiry – which was first in session Feb. 4-8 – is not an actual trial.

“This is like a public grand jury proceeding and the judge is like the sole person on the grand jury,” one lawyer familiar with the case said this week. “He [Sturns] can say, ‘This should go forward [for prosecution].’ The standard for that is, ‘Is there probable cause?’”

Throughout five days of February testimony, special prosecutor Rusty Hardin produced witnesses who testified as to what they did and did not know before and during Morton’s February 1987 trial.

Earlier coverage of the Texas criminal discovery legislation begins at the link; also available, more information from this Texas legislative session, coverage of Michael Morton's exoneration, and the Anderson Court of Inquiry.

What's Next for California

"California's dormant death penalty system faces another legal test," is the title of Howard Mintz' report in the Silicon Valley Mercury News.

Now more than seven years since the last execution in California, the state this week will try again to revive its dormant death penalty system in an appeals court considering the latest legal tangle over San Quentin's lethal injection procedures.

In a hearing Tuesday, the 1st District Court of Appeal will review a Marin County judge's 2011 order stopping executions because prison officials failed to comply with administrative rules in revising California's three-drug execution method. The Brown administration appealed the ruling, likely assuring the state will not execute anyone this year on its 734-inmate death row.

Even as the appeal proceeds, prison officials continue to craft a new execution procedure that would rely on a single drug to put condemned killers to death, similar to methods other states such as Arizona, Washington and Ohio set up to short-circuit challenges to the three-drug procedures. A prison spokeswoman said last week there is no timetable for adopting a single-drug method.

But California appears a long way from resolving a morass of state and federal legal battles over lethal injection.

Switching to the single-drug approach would likely require a new round of administrative hearings, which could take a year or more. Resolution of the legal battle in the 1st District would only pave the way for a return to the federal courts, which first put executions on hold in 2006. And states across the country, including California, are facing fresh problems over a shortage of drugs used in executions, and questions over whether they've obtained them legally from overseas manufacturers.

Syndicated columnist Tim Rutten writes, "California on track to stop killing its own."  It's via the San Gabriel Valley Tribune.

Last November, California came surprisingly close to becoming the sixth state in the past five years to abolish the death penalty, when voters rejected a proposition on the question, 52.7 percent to 47.3 percent. That result represented a nearly 19 percent decline in support for executions from 1976, when 71 percent of the state's voters approved a referendum re-establishing capital punishment. Nationally, in fact, both the number of death sentences imposed and the number of executions carried out has declined steadily since their high point in 1999 and reached new lows in each of the past four years.

Some of this reluctance to engage in legal killing comes, of course, from moral scruple. Many others have followed the sobering number of wrongful convictions revealed by new forensic technologies such as DNA identification, and concluded that no process as clearly fallible as our criminal justice system ought to be empowered to impose an irrevocable sanction, like death. Others have become acquainted with the racial disparities that continue to characterize death sentences across the country and concluded that capital punishment's tendency to erode constitutional guarantees of equal protection under the law simply aren't eradicable.

Others have come to agree with former U.S. Supreme Court Justice John Paul Stevens, who in 2008 wrote that three decades of service on the court had lead him to conclude that his vote to reinstate executions was a mistake. "I have relied on my own experience," Stevens wrote, "in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." A criminal punishment with "such negligible returns to the State is patently excessive and cruel," he concluded.

Earlier coverage from California begins at the link; you can also jump directly to California lethal injection issues.

Additional Coverage of Florida Capital Legislation

The Pensacola News Journal posts the AP report, "Florida lawmakers look at speeding up death penalty."  It's written by James L. Rosica.  It's also available via the San Francisco Chronicle.

Florida lawmakers, also tired of the delays in carrying out death sentences, are trying to speed up the process.

Bills now in the House and Senate would create tighter timeframes for appeals and post-conviction motions, make it harder for inmates to dismiss their lawyers, and heighten the legal standards for pleading certain arguments.

Florida has 405 inmates on the death row, more than any other state except California, which has 724. It takes an average of 13 years to get from sentencing to execution.

But legislators will have to walk a high wire between speed and fairness. Twenty-four men have been exonerated from Florida's death row since 1973, according to the Death Penalty Information Center.

"If we can't get that right, what confidence do we have that any part of our criminal justice system is working?" said Rep. Matt Gaetz, the Fort Walton Beach Republican sponsoring the Timely Justice Act in the House.

At the same time, "all of us can agree it should not take decades to ... effectively and efficiently deliver justice," he said.

Just how long legislators think it should take is unclear. The House bill's wording that originally said appeals should be resolved "within 5 years" was changed to "as quickly as possible."

And:

The Florida Legislature tried a previous overhaul, the Death Penalty Reform Act of 2000. It was shot down by the Florida Supreme Court, which called it an "unconstitutional encroachment" on the judiciary's rulemaking power. The high court then issued its own rule changes, which weren't strict enough for lawmakers.

The court, mindful of the latest bills, recently formed a committee of judges to again look into the capital punishment system and make its own recommendations.

"I know the court agrees with this mutual goal of moving these cases along fairly but expeditiously," said , the Florida Bar's liaison between the courts and the Legislature. "There are improvements that can be made."

Because it affects court rulemaking, Gaetz's bill would require a constitutional revision needing approval by 60 percent of voters on the next year's statewide ballot. If the court can come up with its own faster timeframe, Gaetz said he'd strip that section out of his proposal.

"Witness to an Execution: State Rep. Dave Kerner Watches Murderer Die," is the Broward-Palm Beach New Times report.

"Write what you know" is the cardinal rule of creative writing, and it would seem to be even more important in the writing of legislation. Bad literature can be ignored; bad law, not so much. State Rep Dave Kerner has taken that thought to heart. 

Kerner (D-Palm Springs) has played a major role in current efforts to rewrite Florida death penalty legislation, so he made it a point to be at Florida State Prison in Raiford on April 10 to watch prison officials, on behalf of the citizens of Florida, administer a lethal dose of chemicals to 59-year old Larry Eugene Mann.

Earlier coverage of the Florida legislation begins at the link; also available, coverage of the execution of Larry Mann.

Arkansas Supreme Court Lifts Execution Stays

The Arkansas Supreme Court ruling in Jones v. Hobbs is at the link.

"Court: Six death-row inmates no longer under stays of execution," is the Arkansas News Bureau report.

The stays of execution previously issued by the state Supreme Court for six death-row inmates are no longer in place, the court ruled Thursday.

The court also said the inmates will have to take their case to circuit court if they want to challenge the state’s recently passed lethal-injection law.

The high court made the ruling in the case of inmates Jack Harold Jones, Marcel Williams, Jason McGehee, Don Davis, Bruce Ward and Stacey Johnson. The six had been under stays of execution that the Supreme Court granted in 2010 while the inmates challenged the constitutionality of the state’s lethal injection procedure.

Last year, the court ruled that the state’s lethal-injection law gave too much discretion to the director of the state Department of Correction, in violation of the constitutional doctrine of separation of powers. In response, the state Legislature passed Act 139 of 2013, which sets forth the types of drugs the department can use for lethal injections and the procedures the department must use for carrying out the death penalty.

And:

“We conclude that a circuit court would have jurisdiction of a constitutional challenge advanced by petitioners regarding the newly enacted Act 139, ” the court said in the order. ”For these reasons, (state’s) motion to lift stays of execution is moot, and we deny petitioner’s request to take the matter as a case.”

"With stays dissolved, Ark. to pursue executions," is by AP writer Kelly P. Kissel, via the Stuttgart Leader.

Attorney General Dustin McDaniel expects to take steps soon toward Arkansas' first execution since 2005 after the state's highest court ruled Thursday that stays issued years ago were automatically dissolved when a former execution law was ruled unconstitutional.

The state Supreme Court ruled that stays granted to six inmates in 2010 were voided last year when justices ruled that Arkansas legislators had given the Correction Department too much control over execution procedures. Legislators passed a new law last month, but justices Thursday rejected a request by attorneys to review the law before it is challenged in lower courts.

McDaniel's office will soon certify to Gov. Mike Beebe that there are no other legal impediments to resuming executions, spokesman Aaron Sadler wrote in an email to The Associated Press.

"We anticipate sending letters to the governor in the coming days," Sadler said, but noted there was no set time frame.

Attorney Jeff Rosenzweig said he and other lawyers for the condemned inmates would file whatever responses were necessary to protect the men's rights.

The Wall Street Journal reports, "Arkansas Moves Closer to Executing Eight Inmates," by Jacob Gershman.

Siding with the state, the Arkansas Supreme Court ruled that stays of execution for six inmates that were granted in 2010 are dissolved now that the state has adopted a new lethal-injection statute that replaced one found to be unconstitutional.

The decision authorizes the attorney general’s office to ask Gov. Mike Beebe to issue “proclamations” that would set execution dates for a total of eight inmates who’ve exhausted their appeals. And it means that to postpone the executions, the inmates would have to start again in trial court with a new lawsuit challenging the law.

And:

A spokesman for Mr. Beebe told Law Blog that the governor expects to issue the warrants once it gets the requests from Mr. McDaniel.

Last summer, the state’s highest court ruled that lawmakers had delegated far too much authority to the executive branch over picking the lethal drugs used in executions. In February, the Legislature passed a new law that they said fixed that separation-of-powers problem.

“To address objections to the method of lethal injection previously provided by law, the General Assembly finds that it should adopt a method of lethal injection that uses a barbiturate to bring about the death of the condemned prisoner,” the new statute states.

The old law had given the correction department freedom to pick any substance it wanted, according to the court.

"Challenge new execution law in lower court, justices tell 6 condemned," by Sean Beherec for the Arkansas Democrat-Gazette.

The six death-row inmates who successfully challenged the state’s old death-penalty statute must take their challenge of the new death-penalty statute to a lower court before a higher court hears it, the Arkansas Supreme Court ruled Thursday.

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

Resentencing in Federal Death Penalty Case

"Death Penalty Sentence Overturned," is the title of the news release, via Business Wire.  It's datelined Chicago.

Almost 16 years after being sentenced to death following his conviction in a federal criminal case, Darryl Johnson was resentenced on Tuesday to life imprisonment.

U.S. District Court Judge Ruben Castillo remarked that the record of Johnson’s behavior over the past 16 years of incarceration shows that he is a changed man since his conviction and suggested the mandatory life sentence he was required to impose might well be too severe in light of Mr. Johnson’s demonstrated post-offense rehabilitation.

In 1997, Johnson was convicted of having been part of a large drug distribution conspiracy and having directed the murder of two gang members who he believed were cooperating with the government’s investigation of the Gangster Disciples street gang. Even though he was not the shooter, Johnson was sentenced to death for his involvement in those murders.

In December 2010, U.S. District Court Judge William Hibbler ruled that testimony at Johnson’s 1997 sentencing hearing from Bureau of Prisons Warden John Vanyur about Johnson’s supposed “future dangerousness” was false and misleading. Judge Hibbler concluded that had Warden Vanyur’s inaccurate testimony been corrected at the trial, Johnson would likely not have received the death penalty. Judge Hibbler vacated the death sentences and ordered a new sentencing for Johnson.

In fact, Johnson has been a model prisoner for the past 16 years. In an affidavit submitted by the government in response to a request by Judge Hibbler, a Bureau of Prisons Death Row Case Manager said that during his years in prison, Johnson has proven to be a well-adjusted, quiet and civil individual who has not caused problems for the prison staff. He has also maintained a close and loving relationship with his family throughout.

Terry Campbell, a partner at Cotsirilos, Tighe, Streicker, Poulos & Campbell who has represented Darryl Johnson since 1998, said, “In light of his record of conduct over the past 16 years, the government made the proper decision to not seek to re-impose the death penalty against Darryl Johnson, and I commend them for that decision. Darryl’s case is a lesson in how dangerous and unwise it is to allow juries to make irreversible, life-and-death decisions based on highly speculative guesswork – and in this case, entirely inaccurate guesswork – about what someone might do in the future.”

Felated posts are in the federal death penalty category index.

The Montour Case in Colorado

Today's Pueblo Chieftain reports, "‘Capital punishment is hate and death’; Father doesn't want death penalty trial for son's alleged killer."  It's written by Gayle Perez.

A Pueblo man said he's disappointed prosecutors now will be allowed to seek the death penalty for his son's accused killer after a judge agreed Tuesday to withdraw the suspect's guilty plea.

"I totally disagree with the fact they continue to pursue a death penalty," Bob Autobee said Wednesday. "In reality, it doesn't solve anything and obviously, it doesn't deter crime."

Edward Montour Jr., who was already serving a life sentence in the death of his 11-month-old daughter, is accused of killing Autobee's son, Eric, a corrections officer, in 2002.

"Edward Montour guilty plea ruling: David Lane on death penalty, James Holmes, 'bloody 18th,'" is by Michael Roberts at Westword.

At a February hearing, Edward Montour sought to withdraw his guilty plea for a 2002 murder in an effort to avoid the death penalty he'd previously sought. The office of 18th Judicial District DA George Brauchler, who's also seeking death for accused Aurora theater shooter James Holmes, argued against such a move, but a judge has now granted it; see his order below. Montour attorney David Lane sees the ruling as just and uses strong language to criticize capital punishment, Brauchler and what he calls the "bloody 18th."

And:

"What the Aurora theater victims don't understand is that this is the way of the death penalty. If Holmes is given life without parole, he would fade off into oblivion. He'd bounce back and forth between the state mental hospital and prison for their whole lives. But because they're seeking the death penalty, Holmes has no choice but to fight the case, and the victims will never get closure. By the time he's executed, there will be so many appeals, so many times when they have to go back to court and testify and re-live the nightmare. That's why the people in Arizona in the Gabby Giffords case said, 'Give Jared Loughner life without parole and it's over -- and no one has to worry about his conviction being overturned.'"

As Lane sees it, "Montour is illustrative of the problems with the death penalty. The case has probably already cost over a million in taxpayer dollars, and Brauchler is willing to spend any amount of money if that's what it takes to kill him. That's what's shocking about the bloody 18th."

Earlier coverage of the Colorado death penalty cases begins at the link.

Also From Colorado - Judge Vacates Guilty Plea in Prison Murder

The order to vacate guilty plea in Colorado v. Montour is at Scribd.

"Edward Montour to get new trial in killing of corrections officer," is the Denver Post report written by Karen Augé.

A judge on Tuesday allowed convicted murderer Edward Montour to withdraw his guilty plea in the 2002 killing of a corrections officer, meaning the 11-year-old case must start over from square one.

Montour pleaded guilty in 2003 to killing corrections officer Eric Autobee, and a judge imposed the death penalty. The Colorado Supreme Court later overturned the sentence, saying only a jury can hand down a death sentence.

Since then, the case has taken twists and turns through various courts as attorneys argue over a number of legal issues.

Now, it returns to where it began, in a Douglas County courtroom where Montour will have a second chance to enter a plea, and where District Attorney George Brauchler says he will seek a second death sentence for Montour.

That means Brauchler's office will be pursuing two death penalty cases simultaneously. He announced last week that he will seek a death sentence for James Holmes, who is accused in last summer's attack at an Aurora movie theater.

And:

In Tuesday's ruling, Judge Richard Caschette noted that when Montour initially entered his guilty plea, ". . . he was not represented by counsel and he had a documented history of mental illness. . ." In addition, several public defenders offered statements that Montour refused to cooperate in providing a defense because, at the time, he wanted to die.

The AP report is, "Judge overturns guilty plea in 2002 slaying of prison worker; DA is seeking death penalty," is by P. Solomon Banda, via the Republic.

An inmate accused in the 2002 slaying of a prison worker will be placed on trial and prosecutors will seek the death penalty after a judge Tuesday allowed the suspect to withdraw his guilty plea.

Edward Montour Jr., already serving a life sentence in the 1997 death of his 11-month-old daughter, is accused of killing Eric Autobee, 23, by striking him in the head with a heavy kitchen ladle. At Limon Correctional Facility. Montour represented himself in the case and in January 2003, barely three months after the slaying, pleaded guilty to first-degree murder.

He told his advisory attorneys that he wanted to die by execution, according to court documents.

The case has lingered in court for more than 10 years following a judge's imposition of the death penalty which was later thrown out by the Colorado Supreme Court. The court ruled in 2007 that only a jury, not a judge, can hand down death sentences.

And:

Autobee's family opposes the death penalty but Brauchler said he's taking prison workers' safety into consideration.

Autobee's father, a retired prison employee, turned against capital punishment and spoke up for repeal of Colorado's death penalty in the current legislative session. More on Bob Autobee's comments are at the link. 

Earlier coverage of the Montour case begins at the link.  Also available coverage of the Colorado repeal legislation, the case of Nathan Dunlap, and the James Holmes case.